We have a contractor who is claiming rain delays for about half of the last two years. Some months the rain was in fact above the second standard deviation in terms of monthly quantity averaged over the last 20 years. However, they are claiming rain for months just barely over the average as well, and about one month in six would be expected to be one standard deviation above normal. Is there a standard rainfall extreme that is considered an "Act of God"?
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Rain Delay - "Act of God" 1
- Thread starter LCruiser
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LCruiser,
Sounds like a question for your lawyer.
Practically speaking, why wasn't this issue raised earlier in the job? It could have been negotiated (and could still be) just what the contractor could expect in thee way of relief for inclement weather, or extras in terms of cleanup, site maintenance, stormwater control measures, etc.
You could also look up contract items that the local municipality or state DOT includes in their contracts in terms of weather delays and incurred expenses for some guidance to what is reasonably compensated.
Jeff
Jeffrey T. Donville, PE
TTL Associates, Inc.
Sounds like a question for your lawyer.
Practically speaking, why wasn't this issue raised earlier in the job? It could have been negotiated (and could still be) just what the contractor could expect in thee way of relief for inclement weather, or extras in terms of cleanup, site maintenance, stormwater control measures, etc.
You could also look up contract items that the local municipality or state DOT includes in their contracts in terms of weather delays and incurred expenses for some guidance to what is reasonably compensated.
Jeff
Jeffrey T. Donville, PE
TTL Associates, Inc.
- Thread starter
- #3
It is indeed a question for a lawyer as well. You apparently missed the point. It will be negotiated. This is not an all or nothing question. The question is how much. The project is over 30 miles long, and was a design build. Some rain damage is to be expected. For every 100 drainage crossings, flow in one can be expected to surpass the 1% event every year. There were also R/W delays pushing the contractor back into a wet year.
So, what I'm wondering, is what do others use as a standard for granting delays above and beyond "normal"? 10 year? 20 year? There is no such thing as an "average" year. There are only normal years and abnormal years. How far from average is generally accepted as "normal"?
So, what I'm wondering, is what do others use as a standard for granting delays above and beyond "normal"? 10 year? 20 year? There is no such thing as an "average" year. There are only normal years and abnormal years. How far from average is generally accepted as "normal"?
LCruiser,
I'm a Heavy Civil Contractor
I don't have a specific answer to your main question as we've never claimed "act of God" on rain days for anything other than 100 year storm type events. Typically, unless it's really big it's not worth the fight. I'll ask our lawyer if he knows of any hard numbers. Act of God normally has to be pretty big.
As for the R/W delay. You're on the hook there for sure. We act on this quite often. The delay would be based on the costs associated with the difference between the time of the year the work was supposed to be completed and the time of the year that the work actually was completed. Average rainfall is not a consideration, just the difference between the two periods.
I'll try to repost with a more difinitive answer if I can find it for you.
I'm a Heavy Civil Contractor
I don't have a specific answer to your main question as we've never claimed "act of God" on rain days for anything other than 100 year storm type events. Typically, unless it's really big it's not worth the fight. I'll ask our lawyer if he knows of any hard numbers. Act of God normally has to be pretty big.
As for the R/W delay. You're on the hook there for sure. We act on this quite often. The delay would be based on the costs associated with the difference between the time of the year the work was supposed to be completed and the time of the year that the work actually was completed. Average rainfall is not a consideration, just the difference between the two periods.
I'll try to repost with a more difinitive answer if I can find it for you.
- Thread starter
- #5
I'm unclear as to what you are negotiating. Is the contactor asking for extra money because of rain delays, or extra time, or penalty deduction. If he's asking for extra money and the contract doesn't address the situation, then the solution is either to negotiate or deny the payment and risk going to court.
- Thread starter
- #7
LCruiser,
As stated in my previous post, "You could also look up contract items that the local municipality or state DOT includes in their contracts in terms of weather delays and incurred expenses for some guidance to what is reasonably compensated."
I am sure that government folks have quantified this somewhere.
BTW, the way your original post was written, it seems that you are the one invokng the phrase "Act of God". I think that from a legal perspective, you might want to stick with "unusually adverse weather conditions" and try and work on quantifying the degree of unusualness needed to be exhibited before the contractor is due compensation. Bringing God into it will only muddy the waters.
Jeff
Jeffrey T. Donville, PE
TTL Associates, Inc.
As stated in my previous post, "You could also look up contract items that the local municipality or state DOT includes in their contracts in terms of weather delays and incurred expenses for some guidance to what is reasonably compensated."
I am sure that government folks have quantified this somewhere.
BTW, the way your original post was written, it seems that you are the one invokng the phrase "Act of God". I think that from a legal perspective, you might want to stick with "unusually adverse weather conditions" and try and work on quantifying the degree of unusualness needed to be exhibited before the contractor is due compensation. Bringing God into it will only muddy the waters.
Jeff
Jeffrey T. Donville, PE
TTL Associates, Inc.
- Thread starter
- #9
No, they are claiming "Act of Gold" and in fact some of the months were 3 - 4 standard deviations above normal, for which we will certainly give time. It wasn't our fault, and the policy is that if it wasn't our fault we're not giving money. For general edification I'm wondering what the typical definition of "Act of God" is.
Here is a web page full of the definitions your looking for.
Act's of god essentially mean it was not within the Contractor's control, nor yours. You state your policy is that if it's not your fault, your not giving money. As that's your policy, your contract specifications might clearly state it. If they don't, I believe an arbitrator or court would interpet it that way. If you are 0% at fault (an act of god), there's nothing you could have done to prevent the Contractor from incurring the added cost, why would you pay for them?
If your R/W delays pushed the contractor into the time zone where he would not have incurred the additinal costs caused by the weather(act of god or not), than those added costs could be viewed as being a R/W delay. If you wouldn't have caused the delay, then he would not have been exposed to the additional costs god caused him, then you pay, and consider attending your place of worship more often (bad attempt at humor).
Act's of god essentially mean it was not within the Contractor's control, nor yours. You state your policy is that if it's not your fault, your not giving money. As that's your policy, your contract specifications might clearly state it. If they don't, I believe an arbitrator or court would interpet it that way. If you are 0% at fault (an act of god), there's nothing you could have done to prevent the Contractor from incurring the added cost, why would you pay for them?
If your R/W delays pushed the contractor into the time zone where he would not have incurred the additinal costs caused by the weather(act of god or not), than those added costs could be viewed as being a R/W delay. If you wouldn't have caused the delay, then he would not have been exposed to the additional costs god caused him, then you pay, and consider attending your place of worship more often (bad attempt at humor).
Lcruiser:
You may wish to look at past rainfall patterns in your area of working to determine if the raifall over the last two years were normal or unusual. Very often construction timing etc consider rainfall, materials used locally etc in setting duration of projects. With design build a common error is to assume that the contractor can accomplish the work despite weather conditions. The agency reviewing the design build submission which will include contractor's operational aspects should also judge if his schedule is realistic re weather conditions. There may be different weather patterns re unusually dry weather. However, none of us can predict when this is likely to occur.
ROW issues as others have mentioned may be a factor that the contractor will weigh heavily on.
You may wish to look at past rainfall patterns in your area of working to determine if the raifall over the last two years were normal or unusual. Very often construction timing etc consider rainfall, materials used locally etc in setting duration of projects. With design build a common error is to assume that the contractor can accomplish the work despite weather conditions. The agency reviewing the design build submission which will include contractor's operational aspects should also judge if his schedule is realistic re weather conditions. There may be different weather patterns re unusually dry weather. However, none of us can predict when this is likely to occur.
ROW issues as others have mentioned may be a factor that the contractor will weigh heavily on.
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