What do you do if you encounter unusually severe weather? A time extension for unusually severe weather conditions is set forth under the default clause (such as 48 CFR 52.249-10) included in federal government construction contracts.
The clause typically provides in pertinent part:
“(a) If the Contractor refuses or fails to prosecute the work or any separable part, with the diligence that will insure its completion within the time specified in this contract including any extension, or fails to complete the work within this time, the Government may, by written notice to the Contractor, terminate the right to proceed with the work (or the separable part of the work) that has been delayed. In this event, the Government may take over the work and complete it by contract or otherwise, and may take possession of and use any materials, appliances, and plant on the work site necessary for completing the work. The Contractor and its sureties shall be liable for any damage to the Government resulting from the Contractor’s refusal or failure to complete the work within the specified time, whether or not the Contractor’s right to proceed with the work is terminated. This liability includes any increased costs incurred by the Government in completing the work.
(b) The Contractor’s right to proceed shall not be terminated nor the Contractor charged with damages under this clause, if—
(1) The delay in completing the work arises from unforeseeable causes beyond the control and without the fault or negligence of the Contractor. Examples of such causes include (i) acts of God or of the public enemy, (ii) acts of the Government in either its sovereign or contractual capacity, (iii) acts of another Contractor in the performance of a contract with the Government, (iv) fires, (v) floods, (vi) epidemics, (vii) quarantine restrictions, (viii) strikes, (ix) freight embargoes, (x) unusually severe weather, or (xi) delays of subcontractors or suppliers at any tier arising from unforeseeable causes beyond the control and without the fault or negligence of both the Contractor and the subcontractors or suppliers; and
(2) The Contractor, within 10 days from the beginning of any delay (unless extended by the Contracting Officer), notifies the Contracting Officer in writing of the causes of delay. The Contracting Officer shall ascertain the facts and the extent of delay. If, in the judgment of the Contracting Officer, the findings of fact warrant such action, the time for completing the work shall be extended. The findings of the Contracting Officer shall be final and conclusive on the parties, but subject to appeal under the Disputes clause.”
48 CFR 52.249-10; see also 48 CFR 52.249-14 (regarding unusually severe weather as an excusable delay).
As reflected above, unusually severe weather is an excusable delay that will entitle the contractor to additional time to peform, but not additional compensation. However, not every weather event amounts to unusually severe weather. In order to be entitled to an extension of time for weather conditions, the contractor must produce evidence of the unusually severe weather event that it contends entitles it to additional time to perform. Edge Const. Co., Inc. v. U.S., 95 Fed. Cl. 407, 420 (Fed.Cl. 2010). “Unusually severe weather must be construed to mean adverse weather which at the time of year in which it occurred is unusual for the place in which it occurred. This condition is not established simply because weather charts may indicate that on a certain day the precipitation is greater than on some other days in some other year, since variance in weather patters is to be expected.” Broome Const., Inc. v. U.S., 492 F.2d 829, 835 (Ct.Cl. 1974). “Thus, unusually severe weather is determined based on a comparison of the conditions experienced by the contractor and the weather conditions of prior years.” Edge Const., 95 Fed.Cl. at 420. Without proving that unusually severe weather impacted performance, the “delay was anticipated and agreed to by the parties…the Government [owner] is not obligated to anticipate acts of God and abnormal conditions that might interfere with contract performance. It is supposed that bidders allow for this in their bids.” Broome Const., 492 F.2d at 835.
Proving that there was unusually severe weather oftentimes requires providing weather data from the National Oceanic and Atmospheric Administration (“NOAA”) (sometimes in conjunction with expert testimony). NOAA is a federal agency that maintains past weather data and generates future weather forecasts. Sometimes there is an actual weather clause in the contract that provides baseline weather conditions for the project location obtained from NOAA to be used as a baseline for weather time evaluations.
The key is that if a contractor experiences an unusually severe weather condition that impacts its performance, it has the burden to support this weather condition (again, typically with data from NOAA) and timely notify the government / owner of the weather condition. A major reason to do this is that the contractor will want the time extension in order to extend the substantial completion date of the project which is the date that triggers the government’s assessment of liquidated damages if the contract is not substantially completed / performed by a specified date.
Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.