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A B C D E F G H I J K L M N O P Q R S T U V W X Y Z
    July 1, 2019 / Publications
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    Government Contracting Database

    Unusually Severe Weather

    Unusually severe weather is “adverse weather which at the time of year in which it occurred is unusual for the place in which it occurred.” Edge Const. Co. v. United States, 95 Fed. Cl. 407, 420 (2010) (quoting Broome Construction, Inc. v. United States, 492 F.2d 829, 835 (Ct. Cl. 1974)). A contractor usually is only entitled to additional time for unusually severe weather, but the government has no legal responsibility for the additional costs incurred. See Southland-Construction, ASBCA No. 32677, 87-1 BCA ¶ 19,672, which holds that the contractor bears the risk of unusually severe weather.

    The general rule regarding the allocation of risk due to weather conditions is set forth in the “Default” clause, which is included in every government construction contract. That clause permits the contracting officer to extend the time for performance for acts of God, floods and unusually severe weather. However, it does not obligate the government to reimburse the contractor for any resulting increase in costs.

    As applicable cases illustrate, the Boards of Contract Appeals have uniformly confirmed that the Default clause entitles a contractor to a time extension, but not compensation, for such occurrences. The judges have consistently held that neither party is responsible for the damages to the other party for these events; therefore, contractors have been denied recovery of compensatory damages, while the Government has been precluded from assessing liquidated damages for a delay to project completion.

    In an effort to circumvent these rulings, contractors have sought an equitable adjustment for unusually severe weather, including excessive rainfall and flooding, on other grounds, such as through application of the Differing Site Condition clause of the contract. Unfortunately, this approach similarly has been unsuccessful. For example, the Claims Court has held that a contractor cannot obtain a price adjustment for weather conditions, regardless of whether the request is based on a Type I or Type II differing site condition. Daewoo Eng’g & Const. Co. v. United States, 73 Fed. Cl. 547, n. 17 (2006), aff’d, 557 F.3d 1332 (Fed. Cir. 2009) (citing Turnkey Enterprises, Inc. v United States, 597 F.2d 750 (1979)).

    The Armed Services Board of Contract Appeals has similarly determined that excessive rainfall is an act of God for which the contractor cannot obtain an equitable adjustment under the differing site conditions clause, even though the rainfall affected moisture sensitive soils. See Titan Pacific Construction Corp., ASBCA Nos. 24148, 24616, 26692, 87-1 BCA ¶ 19,626. In both of the above appeals, the contractors were able to obtain only a time extension for the impact of the weather conditions on performance.

    The courts and boards of contract appeals have stated that in order for a contractor to obtain an equitable adjustment for weather conditions, the government must expressly agree through a contract provision to pay for damages due to weather and acts of God. Through the application of standard contract clauses, the government has declined to assume such a risk.

    An exception to the general rule occurs, however, when a contractor is able to show that a government caused delay forced the contractor to work during a period of unusually severe weather which the contractor would not have faced absent the government caused delay. Appeal of Charles G. Williams Const., Inc., ASBCA No. 42592, 92-1 B.C.A. (CCH) ¶ 24635; See also Reliance Enterprises, ASBCA No. 27638, 27639, 85-2 BCA ¶ 18,045 (government’s failure to correct inaccurate drawings caused contractor to incur additional costs associated with erosion and clearing weed growth when work was delayed until after the rainy season); Robert L. Rich d/b/a/ Unitranco, DOT 1026, 82-2 BCA ¶ 15,900 (contractor entitled to an equitable adjustment for weather delay where government delay caused contractor’s installation of roads to be shifted into wet winter months); Weaver-Bailey Contractors, Inc. v. United States, 19 Cl. Ct. 474, recon. denied 20 Cl. Ct. 158 (1990) (contractor entitled to compensation for additional costs where erroneous contract specifications prevented completion of excavation before the onset of winter).

    Updated: July 9, 2018

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