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Delay due to heavy rain

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Norzul Ibrahim
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Dear All,

For the past couple of days, there was heavy tropical rain here. Has affected the work progress primarily the underground work. Estimated 2 days loss. Can the contractor use this "uncontrolled" event to issue the variation order?

Thanks

NORZUL

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ashraf alawady
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the subject has to be handeled contractually based on the historecal data and records for the weathering coditions in this particulare location and the ability of Any experiance’contractor to include in his programme thos dates and duratios in which the heavy rain or any ather adversed climatic conditions can be excepected or not.
*We have to study and analyis each and every case separetly.
*the contractor has to submit official notificaton and he has to submit full detailed particulars with all the supporting documents for this case then the engineer/client has to study all the submitted documents and to make fair assesement and recommendations.
I agree with almost all the discussion above highlighting the need to address rain delays in the contract. In my experience (mostly in the central and southern US), typical building contracts do not allow for any rain delays outside of FM (hurricanes, tornados, etc.), while heavy civil contracts tend to include a certain number of rain days in the contract time.

When planning for rain days, I’ve learned to be sure to account for historical variations, not just averages, since in some areas there can be huge month-to-month and town-to-town variations in rainfall. Also beware of the term "normal rainfall" - the weather service uses it to mean "historical mean." Thus, when I agreed during contract negotiations several years ago to allow for EoT in case of "above-normal" rainfall, I didn’t realize that this would be a 50% probability.

(Please excuse the length of my first post. I hope to be able to contribute more succinctly in the future.)
ashraf alawady
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Hi
the subject has to be handeled contractually as follw:-
*what are the historecal data and records for the weathering coditions in this particulare location.
*Any experiance’contractor has to include in his programme thos dates and duratios which the heavy rain or any ather adversed climatic conditions are excepected.
*We have to study and analyis each and every case separetly.
*the contractor has to submit official notificaton to the engineer/client if any adversed climatic conditions happened during un expected time and duration.
*the contractor has to submit full detailed particulars with all the supporting documents for this case and what was the negative impact on his planned programme.
*The engineer/client has to study all the submitted documents and to make fair assesement and recommendations.
Philip Jonker
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Hi Bryan,

You got my point, but there is different methods of overcoming the problems of condensation, wet steel, called quick access, the likes of cherry pickers and scissor jacks, have made life quite easy for steel erectors, and have resolved many of the safety issues when working in damp conditions, so the safety issues have migrated from time issues to cost issues.

Regards

Philip
Bryan Russell
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As an immigrant Englishman to South Africa in 1976, I used the exceptional wind in Cape Town for extension of time claims, basing the principle on the unseasonal exception to normal weather patterns as recorded at the airport.

Philip, your lack of visibility from fog may have been recorded at Saldanha, Cape Town harbour or similar places, but the big problem with structural steel is condensation on the structure and the slipperiness. The UK unions were very quick to raise that one to stop guys working and it posed a serious problem if the contractor wanted to raise an exetnsion of time claim. All boils done to a reasonable view of what was expected and what actually happens.
Philip Jonker
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Hi James,

How do you englishmen clarify the problems of fog and smog, especially in the instance of structural steel? Is this inclement weather, or do you guys just carry-on, as in the movies. We have this type of problem on our West coast.

Regards

Philip
James Griffiths
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Shamail,

I think that all the bright ideas have been exhausted. It’s been a very interesting thread.

I don’t know if you’ve lived in England, but the weather has always been the hallmark of British culture and conversation. The fact that this thread is related to heavy rain just struck-a-chord, and provided material for little giggle - although from the thread originators perspective, I’m sure that it’s serious stuff. No belittlement intended.

James :-)
shamail shardan
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I’m glad that people in London are having fun in this thread, any bright ideas guys in addition to your funny jokes ;-) ?
James

You wuz lucky - used to dream of rice wih a good beating

Appologies to Monty Python
shamail shardan
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Dear ALL,

You all know that different countries and projects have different Conditions of Contract and Specific Conditions when it comes to the definition of "Force Masures", however; the baseline is " if the Contractor can prove by ANYWAY reasonable and accepted by the Engineer that this heavy rain COULD NOT be anticipated by ANY scientific or REASONABLE data, then the Engineer shall study the effect of those days on the schedule and the ACTUAL COST incurred by the Contractor due to IDLE manpower and equipment, and shall advise the Employer accordingly.

Personally, I do agree with the new approach, some Contracts are now including a B.O.Q item of "RISK" which covers any possiblity of these events, the Contractor will price this item to the best of his experience, and NO claims of whatsoever in this regard shall be discussed during the project. It might be not fair, however; its also unfair that the Employer pays for the Contractors IDLE manpower and equipment just because it rained, or the Contractor shall swallow the cost alone, so i think the best way is to have a priced item, the lucky one wins ! ;-)

Cheers All
Philip Jonker
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Hi guys it is simple, on most sites I have worked on we have rain guages, take this one step further, and install a tipping bucket rain guage, with the relevant documentation and a data logger, linked into the site it metwork, have the system approved by the client and e-mail him the records from the data logger as often as he wnts, and he he can spend his time dissecting the records, and this will will keep him out of your hair for quite a bit of the time. There might even be new positions for weathermen on sites, and this can be upgraded to full blown weether stations on every site.

The point is that for every area there is historical weather data, and if you have a blizzard with -20Dc, in Mjorca, Spain, in August, and this lasts for five days, you probably have a claim. But two days in an area where rain is normal, is not a train smash. I allow twelve woring days a year for this type of weather, besides this I also allow aprox. 100 days by excluding weekend work, 2 days can quite comfortably fitted into 112 days, unles the project had a very limted duration, like two weeks.
Clive Randall
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In hong kong on some contracts we still have EOT for inclement weather even if its predicatable. Obviously the criteria for inclement weather is set but it is not weather that is unusual
Clive
Damian Smith
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Raja,

I think your case is slightly different.
Good data to have if it can be certified
Damian Smith
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Raja

I think a weather chart is probably, in most cases not required. The local metrological service would be better able to keep records that would be able to be used in adjudication, as they have a history and are bench marked

I am taking a punt here, but I would say that contractors working in hurricane prone areas would not get extensions of time due to excess wind or rain as it is part of the natural conditions that surround the area.

Raja Izat Raja Ib...
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Hi,
James, Its true, Im working with Offshore Core Team i have to check the weather Every morning with Daily Report.
I have to check the weather, wave height to take control on daily activities subsea, chopper to mobilise worker, Barge to delivery the materials from site to the platform and being provide by the medic on the platform.
One day the barge standby it will cause usd54k so we need, manpower cannot mobilised day can cost so much, and diver it costly appropriate wheather data.
James Griffiths
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Goodness Gracious Me!!!! If we had to submit a Weather Chart every 24 hrs in the UK,and get it approved, every project would be chronically bogged-down in dispute. Can you imagine the conversation:

Yorkshire Man: "Eeeeh Bah Gum Lad, we got rotten weather down t’ mill today. Tis too flehmin ’ot at 20C. We’s thinkin’ o’ downwin tools forra dip in river and clehmin’ 6 months EoT for emotional distress, like.

Geordie Man: Ay lad, ye’ think yerself luckeh. When I were a lad, we ’ad t’ walk barefoot through Sa’ara, carryin’ 200 tons of coal round our left leg whilst draggin a camel by ’is tail. All we got whirra bowl a rice and good beatin’.

NO OFFENCE TO ANYONE. THIS JOKE WILL BE APPRECIATED ONLY BY THOSE WHO HAVE A KNOWLDEGE OF NORTHERN ENGLISH DIALECTS AND CULTURE.

James

Raja Izat Raja Ib...
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Hi Norzul,
Do your Project have weather Chart, I think every project have . I have been several Project they have this weather chart being monitor by (sometimes Area Managers, Safety or Planning engineers itself, I don know who’s scope actually) and will be submitted to Client every 24 hours for approval. This will be the prove for your Claim.
Clive Randall
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Norzul
Looks like you have a dream contract in that all that is required to be proved is clearly spelt out.
Clive
Norzul Ibrahim
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The contract also clearly specifies the rain intensity i.e. max, min, average, max recorded in 1 hour, max recorded in 24 hrs and the annual number of rainy days per year. Unless the contractor can proof beyond reasonable doubt that the rain intensity exceeds of the above, I doubt they will suceed in claiming the EOT.
Norzul Ibrahim
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"Force Majeure" as defined by our contract is any unforeseeable event or cause beyond the reasonable control of the party in question and which could not have been prevented or overcome by the exercise of due diligence by
the said party.

It further clarifies....the events falling within ‘Force Majeure’ include but are not limited to occurrences of
and consequences arising out of acts of God or force of nature, unusually severe weather, lightning, earthquakes, tidal waves, acts of war or public enemy, riots, strikes,
sabotage or similar unforeseeable events beyond the control of the parties or any one of them.

So in my opinion, heavy rain for couple of days in a year can’t be considered part of force majeure and therefore can’t be used as a reason for EOT....at least based on the contract.
Philip Jonker
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Hi Damian,
You are still on the same page, and correct, the question is was the rainfall abnormal, or normal. And the second question is was Christopher the guy who got drunk or not???????????????????????
Damian Smith
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Not sure if we are still on the same topic with out reading all of the replies, but here are my two cents.

I am guessing that lost days due to rain are quite common in the area you are working in, as such, an experience contractor should have included this in his programme, or risk allowance.

As such no EOT should be allowed in my opinion.
Andrew Flowerdew
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Norzul,

Ethical conflict - actually not. The best advice you can give a client is the correct advice, ie, this claim is valid, this claim is not, or more often the case, this part of your claim is valid or not. I 100% do not believe in exagerating the chances of success in order to get some fees, even it’s bad news for the client, bad news is better than wrong news.

Having done that then it’s up to the client to decide what to do. If he want’s to spend money on a claim with little chance of success then that’s up to him, but as long as he’s 100% aware of the chances, then I don’t have a problem. In most cases when you actually explain the reasons then reality sinks home and it’s not a problem.

It’s often actually the case that there’s alot of grey areas as to liability - black and white, clear cut cases rarely end in dispute. But the same principles apply, 100% honest assessment and then it’s up to the client to decide what to do. Sometimes for commercial reasons, they can’t afford not to go for something even if they know it’s substantially a load of rubbish - but then you pick out the valid bits and make the most of them, the rest you find the best arguemnt you can think of to put forward. You may be surprised and win the day or at least put sufficient doubt in the minds of the other party that a settlement is reached. People often think the law is clear cut but it isn’t at all and an arguement well delivered, although weaker in substance than your opponents can win.
James Griffiths
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Here here, Andrew, here here!

We all know that, in essence, you’re absolutely right. We all know, however, that Truth, Justice and Liberty are a side-show relative to Politics & Money....and that’s why your job exists...to sort the woofer from his wotsits. Out of morbid curiosity, Andrew, do you have ethical conflicts?

James :-)
Andrew Flowerdew
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Some interesting points raised here. The same line of thought applies to this claim as any other:

1. Who is the risk of adverse weather with? By the replies I assume the Employer.
2. At the time of making the contract was it reasonable for the Contractor to have allowed for this type of event? If yes, the Contractor has no claim. If no, then the Contractor may be entitled to claim extra time and maybe money depending on what the contract says.

If the Contractor is entitled to claim then the Employer should pay up, if not, tell the Contractor to take a hike.

It never ceases to amuse me that Employers freely enter into contracts that have clauses in saying "if this event happens please Mr Contractor claim extra money/time", and then they get upset when the Contractor does claim extra money/time for the said event.

That said, if Contractors continue to put forward claims that have no real basis, hugely exagerate the value on the basis that if I claim twice as much as I need I’ll settle for half, then they can’t blame the Employers for crying wolf every time a claim goes in not matter how valid it is.
James Griffiths
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Clive,

I’ll admit that I’m not quite sure whether the client actually signs the register and/or formally accepts/approves its contents. However, when he reads how much it could cost him, it can certainly help motivate him to fulfil his obligations. Too many times we’ve had the client "not doing his bit" with adverse consequences on all concerned parties. Unfortunately we seem to be way-too-soft and just accept the poo when it hits the fan; without actually telling him the consequences of his own actions.

James.
Clive Randall
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James
Interesting to note the Client buys into the risk register
while in Hong Kong these are produced and given to the Client I do not recal them being signed by the Client
Clive
James Griffiths
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Guys,

Interesting viewpoints. One element that has failed to be mentioned; and that is of a "Risk Register". Did such a register exist and, if so, was it circulated and agreed upon by all parties?

The RR is precisely for the aforementioned scenarios, and I would have thought that prudent Contract Management would have formulated such a register. All our "big" projects have this and it is a common document that gets updated on a regular basis. The client signs-up to it, and it saves a lot of potentially disruptive arguments over establishing what could or could not have been reasonably foreseen. Ok, is doesn’t help determine who is to blame or whether the claim for costs is valid. However, is does allow the relevant parties to put-aside a contingency in case the risk comes to fruition.

James
Raja Izat Raja Ib...
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Hi,
Delay on heavy rain doesnt mean can easily claim, Its depends also on fabrication / work under shed , is it no progress at all? Unless its flood every square inch.
Jerry Alivio
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Hello charles,

Actually your principle is "Good" if you are on the Owner side of the story but, if you are on the Contractor side then, as a Businessman, the first page of your book will be the Real meaning of Construction + Business = Profit.

Then you will be having a Profit A, Profit B & Profit C now
You don’t want to lose the profit A to make sure you will have the B & C.

See yah... Hi Raja, where are you now?

Jerry
Clive Randall
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Charlie
I am not sure I agree that abnormal conditions can so easily be written off by sticking to the basics.
A good claims person must be able to think outside the box particuarly as contracts become more stringent and the more basic methods for claims are removed by vexaious contract terms.
Claims people who can be inventive and who can come up with a different perspective to a problem are worth their weight in gold.
Still I take your point and agree that there are chancers who left unchecked can falsify the true position on a claim in their own interests. It is therefore up to Senior managers in companies to assess the risk and opportunities when reviewing claimns. This in turn requires lateral thought.
Clive
Charleston-Joseph...
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An interesting point

"when a normal condition becomes abnormal"

This happen when the contract’s wise guys got drunk and high and start thinking abnormally. To cover up his misdeamnor, he started to invent some rediculous claims, in this way his boss will not fire him

but

what is the effect of his actions. he will always tell the project team that there is a reasonable claim for EOT, so the construction team become complacent because there is no need to hurry up. In the event the client wants to speed up the project, then, the wise guy will ask for acceleration fee/cost.

As the project drags on, the wise guy will plan his vanishing acts in the project. Eventually, there will be no basis in his claim for EOT including associated cost for the very reason that the event was normal, but, he was able to convince a lot of people that it was abnormal.

The moral here is to stick to the basic on how to manage the contractual aspect of the project.

cheers,

charlie
Geoffrey Boulton
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Narzul
The simplest way to my mind is to look for the “Force Majeur” clause and see what it says about inclement weather, extreme climatic conditions etc.

Having worked in Malaysia I know for a fact that our particular Contract did not allow for any respite due to inclement weather / tropical storms, as they are part and parcel of normal working practice and deemed to have been allowed for within the project allowances.

What you have to remember is the important point that was brought up by Stuart. Obtaining any time relief does not automatically provide for entitlement to recovery of costs. Again you will have to examine the basis of the respective clauses under which the Contractor is claiming their extension. Force Majeur in most circumstances does not provide for recovery of costs.

The issue raised by Philip becomes very valid if the extensions start to build up and the works are pushed into a very different part of the year – which for you in Malaysia with all the public holidays you have would be well worth examining.


As a side note I have fought the fight over “inclement weather” and won. Proving it in our case meant talking very nicely to various government departments and airports (the latter keep very meticulous weather records) into providing us with records that went back thirty plus years and then demonstrating that the weather had in fact been far in excess of the norm or average. Which is what abnormal is – beyond the average. The client saw the humour in our move (along with the seventeen plus lever arch files) and decided to let it by uncontested.
Philip Jonker
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Hi Andrew,

Thje original contract was before the rainy period, and the client needed extensions due to late free issue materials, there was several other issues involved, such as disruption, lack of access, undue overtime, basically everything you can think of that could affect performance. We had a good costing database in place, linked to at that stage, OP4 dos version, and a system of job cards, and could track everything via these systems. We could work out the averave disruptions, due to weather, late material, access, etc.

It takes a bit of planning.
Regard, nice talking again, was a bit busy on my current project, but have planned it that I can talk again.

Philip
Andrew Flowerdew
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Phillip,

Long time since I’ve heard from you and a very valid point you make. On the post below, as it hasn’t been stated, I would assume the period was within the original contract period but that might be wrong.

You are 100% correct to say that if an Employer delay pushes the construction period into a period of bad weather that would not have been anticipated when the contract was made then the Contractor can claim for that period of bad weather not anticipated, even if it was normal weather for the time of year.

Philip Jonker
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Hi Guys,

The question is simple, every country has rainfall records, and the contractor, should make provision for the climate. And, here is the solution, was the two days of rainfall abnormal, and never experinced before, as far as I know, Malaysia, has fairly heavy rains. The point is abnormal weather conditions. An interesting claim on a project I was involved in was that the free issue material, supposed to be provided by the client arrived late, and as all the material was supposed to be on site by the end of September, the material arrived sporadically up to March the following year. The job was supposed to be completed by the end of November. The heavy rains, historically falls in January to March, this means that the original schedule mede no provision for abnormal inclement weather in the original period, but, as a result of late material deliveries we were forced to complete the project during this period, which caused additional delays.
The court upheld our argument, that we were forced into a heavy rain period, and as such, what was normal conditions, could be claimed as abnormal. An interesting point, when do normal conditions become abnormal.

Regards
Andrew Flowerdew
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Determining the defintion of what is exceptional weather is the key to this one. Can’t decide anything until that is agreed.
Shahzad Munawar
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Firstly we seek what the Contract provisions stipulate about the Heavy rains?

Can the Contractor apply for EOT under "unprecedented rains" or not as not taken in his Original Construction Programme?

If yes, then what is acceptable rainfall intensity in this respect?

After collection of such data from meteorological station in support of your claim statement, you may get EOT for these unforeseeable event but not get its additional costs subject to any such costs specifically mentioned in your Contract.
Mohamed Edris
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Dear Fellows,


would like to ask how to show the bad weather days impacts on the planned activities?

Shall we include these days as non working days in the construcion calender?

Pls advise

Moh’d
Norzul Ibrahim
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TQ for all the responses...we are in the peak of construction phase now...schedule to commission 4-6 months from now...good luck to us.
Bryan Russell
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Norzul,
Having worked on the Cameron Highlands Hydro scheme some 40 years ago, from what I experienced heavy rainfall can hardly be called unforeseen in Malaya.

FIDIC 4th only gives relief for exceptionally adverse climatic conditions, but you might look at Clause 12.2, under climatic conditions off the site; i.e. flooding caused by off site rainfall, or rise in water table in the tunnel.

Otherwise you should have programmed the normal rainfall days into your Clause 14 Programme, and only a significant increase in those rain days can be addressed.
Stuart Ness
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Norzul,

For what it is worth the FIDIC Red Book (4th Edition) allows for an EOT under Clause 44.1(c), under which an EOT may be forthcoming due to "...exceptionally adverse climatic conditions..."

How you demonstrate "exceptionally adverse " may be subjective (once in every three years? / five years? / 10 years??) and note that the reference is to adverse climatic and not weather conditions!!

And of course, granting of an EOT does not neceaasily mean entitlement to the related costs.!!My view is that if you have a couple of days rain in a tropical environment, this is not "exceptionally adverse" and would not be cause of an entitlement to an EOT (or costs) under FIDIC (or probably under any other half-decent Contract).

Hope this helps,

Stuart

www.rosmartin.com
Jerry Alivio
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Hi Sherif,

I totally agree with you, Contractor should be or can claim those we consider "Down Time" due to rainfall. In fact it’s nature who does and not us.

During the estimation before the submission of the Proposal it’s part of it, including the Resources however even though we knew that certain Tropical Countries are having this unpredicted rainfalls, but we are not sure when, weather can be change at any time.

Thanks for hearing this.

Jerry

Sherif Fam
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Sorry colleagues, I checked, and it is not in the FIDIC; but in the General Contract Conditions for United Arab Emirates. Not sure if it still applies there where you are.
Sherif Fam
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According to the FIDIC, the contractor is entitled to claim EOT for "Abnormal Severe weather condition". The question is how to claim it.

I encountered the same situation, and had to go to the meteorological office, and got the rainfall intensitisty (measured in height/duration e.g. 2cm/hour) for that incident as well as for the past 10 years (monthly detailed). Then, I computed AVERAGE (STANDARD DEVIATION is more accurate) for the same month allover the 10 years. If it is +ive, i.e. the intensity is higher than usual, and you may claim, if it is lesser, then, you should have anticipated such rain in your planning; as such rains should be expecetd in the country.
It comes down to the contract at the end of the day. Is "force majeur" allowed for? Should the contractor have had an idea that it would rain badly at this time of year? Does it happen often?

Similar situation I was in Egypt and we had two days of torrential rain - unheard of! We were successfully allowed an extension as it was an unforseen act of God - or Allah. It was allowed under the force majeur rule in the contract "An unforseen event that cannot be reasonably predicted".

If it had been in India, where you get monsoons at certain times of year, and that was when it rained, hard luck, it should have been allowed for.

If it is unusual then you have a chance, if it was the rainy season, hard luck.

Cheers

Nige