WE ARE ALREADY LATE, THE WEATHER HAS FURTHER DELAYED US, BUT THEY WON'T AWARD US AN EXTENSION OF TIME!

When the contractor has already passed the completion date, but is then delayed further by the weather, clients that we advise sometimes state, “if he had not been in delay, he would not have encountered the bad weather – it’s his own fault!” So, where do you stand with your request for an Extension of Time?

First things first, “bad weather” (depending on the exact wording of the contract that you are working under), may be referred to as; “exceptionally adverse”, “unforeseen”, “exceptionally inclement” or “adverse climatic conditions”. In real terms this can mean that you consider the weather that you are experiencing to be exceptionally hot, wet or cold; it is something that would not normally be experienced at this time of year in that particular location.

But beware, from my experience the weather has to be exceptional i.e. it has to be an occurrence that normally does not happen and is so unexpected, it could not be reasonably contemplated at tender stage. So for example, if you are working in Dubai in July and it is minus 25 degrees c – well that’s unexpected!

Typically, when preparing a claim on this basis we record the actual weather on the day and compare it to the ten year average (using data from the Met office). By comparing these two sets of data, you can ascertain what is out of the ordinary.

So, do you get an extension of time?

Most forms give the contractor an entitlement to an extension of time for “bad weather”; the clauses generally refer to the delay event actually having an impact on the contractor’s actual progress of work and make no reference to any specific programme. Therefore, the key point is… did the weather actually impact on the contractor’s progress and affect the completion date?

If it did, you may well be in for an extension of time.