Construction Delays and Other Claims - Construction Project Scheduling and Control - page 348

3. Changes in the owner's requirements : This may constitute a change to the con-
tract and a need for a change order. As discussed earlier, owners are always
encouraged to specify exactly what they want within the limit of their budget. 8
4. Unusually adverse weather conditions : Most contracts allow for certain expected
weather delays without allowing time extensions for them in the contract. 9
A contractor who is rained out for 5 or 6 days during the month of July in
Tampa, Florida, probably will not get a break from the owner because such
a delay is not unexpected or unusual. A weather condition that is not usual
for that geographic area during that time of year may provide grounds for the
contractor to make a time extension claim. A hurricane or a tornado may be
regarded as force majeure 10 and provide grounds for a time extension even if
that area is known to have hurricanes or tornados.
5. Other factors : There may be other factors that may not be the claimant's fault,
such as the owner's failure to provide a project site, late notice to proceed
(NTP), labor strikes, 11 delay in delivery of owner's furnished equipment, or
events that can be classified as force majeure , or problems deemed to be the
responsibility of the owner.
Note that the preceding factors may entitle the contractor to monetary
compensation, a time extension, both, or neither.
FORCE MAJEURE
The term force majeure (also written as force majure ) came into use around 1883 and
comes from the French termmeaning “superior force.” In the context of construction
projects, this term generally combines three important elements:
1. Superior, overwhelming, or overpowering, that is, cannot be prevented
8 On a project in which the author was involved, a city municipality asked an architect if it would be possible
to design a parking garage in a certain location with a capacity for 280 cars within a budget of $2.5 million.
The architect confirmed the cost based on a “plain” design with a simple finish and no fancy options. The
contractor's estimate for that design was indeed just below the $2.5 million mark. During the detailed design
phase, the city started adding options, such as a sprinkler system, a security system, retail space, planters,
pavers, trees and some landscaping, an extra half-floor that would increase the capacity to about 325 cars, and
so on. These additions increased the cost until it topped $4.2 million. The city liked the design but was
shocked to see the contractor's price tag. It asked the architect, “We thought we were getting the parking
garage for about $2.5 million?” The architect replied, “You can't get a Cadillac for the price of a Chevy!” The
city had to go back and remove many of the added options but insisted on keeping some of them. The project
was eventually constructed for slightly over the original budget.
9 See the American Institute of Architects, document A201-1997, paragraph 4.3.7.2.
10 This term is discussed later in detail.
11 In some cases when the contractor signs the construction contract at a time when a labor strike is looming,
the courts have ruled that the strike is not grounds for granting a time extension.