DELAYS CAUSED WHEN GOVERNMENT (OWNER) PUSHES CONTRACTOR’S WORK INTO RAINY / ADVERSE WEATHER SEASON

There are a number of horizontal construction projects where a contractor’s sequence of work and schedule is predicated on avoiding the rainy season (or certain force majeure events).  The reason is that the rainy season will result in delays due to the inability to work (and work efficiently) during the adverse weather (including flooding caused by the weather).   If the work is pushed into the rainy season, is such delay compensable if the government (or owner) delayed the project that pushed work out into the rainy season?  It very well can be.

 

For example, in Meridian Engineering Co. v. U.S., 2019 WL 4594233 (Fed. Cl. 2019), a contractor was hired by the Army Corps of Engineers to construct a flood control project for a channel in Arizona. Due to delays, including those caused by the government, the project was pushed into the monsoon season, which caused additional delays largely due to flooding caused by the heavy rain.  One issue was whether such delays were compensable to the contractor – the government raised the argument that the contractor assumed the risk of potential flooding from the rainy season.  The Court found this argument unconvincing:

[The contractor’s] initial construction schedule planned for a completion of the channel invert work, a necessary step in protecting the site from flooding, to be completed by late June 2008…[M]any issues arose in the project’s early stages that led to cumulative substantial delay, including those caused by the government’s failure….The government cannot now claim that [the contractor] assumed the risk of flooding from monsoon season when the government was largely responsible for [the contractor’s] inability to complete the project prior to the beginning of the monsoon season.  Simply put, the government cannot escape liability for flood damages when the government is responsible for causing the contractor to be working during the flood-prone season.

Meridian Engineering, 2019 WL at *7 (internal citations omitted)

In other words, but for delays caused by the government, the contractor’s work would not have been pushed into the monsoon season.  The Court’s outcome, perhaps, would have been different if the contractor was the sole cause of delays that pushed the project into the monsoon season or the contractor’s original schedule was unrealistic to begin with.

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.

 

ACCOUNT FOR THE IMPOSITION OF MATERIAL TARIFFS IN YOUR CONSTRUCTION CONTRACT

shutterstock_138974732After Hurricane Irma, I wrote an article that contractors should revisit the force majeure provisions in their construction contracts.  Not later.  But Now. The force majeure provision is an important provision in a construction contract to account for certain uncertainties that you have NO control over. 

 

Recently, another reason has given rise to contractors needing to revisit their force majeure provisions, as well as any provisions dealing with material escalations. Not later.  But now.  The imposition of raw steel and aluminum tariffs (tax on imported goods) and the back-and-forth regarding a potential trade war leads to the kind of uncertainty that should be assessed as a risk.  A risk in both time and cost from material escalations.

 

Contractors want to revisit their force majeure provisions, as well as any material escalation language, for these two reasons. 

 

First, you want to ensure any delay, to the extent there is any, associated with the tariffs or potential trade war provides for a time extension.    Any impact a contractor has with the delivery or fabrication of raw steel due to the imposition of tariffs should result in an extension of time.

 

 

Second, and probably the bigger concern, is associated with price.  Higher raw steel and aluminum costs could mean you based your price on inaccurate supplier and/or subcontractor pricing (pricing that did not factor in tariffs), particularly if the raw steel has not been pre-ordered or pre-delivered. Escalating material pricing is a concern.

 

 

Moving forward, I suggest including language in the force majeure provision that accounts for the imposition of tariffs and the concern of a trade war just to be safe.  Clarity in a contract is always better.  But, adding this language will account for time, but not the escalation of steel and aluminum pricing due to the tariffs.

 

If you are entering a lump sum contract, consider factoring this issue into your pricing.  Or, alternatively, identify an allowance associated with these materials so that you are not penalized based on actual pricing that accounts for the tariff   Another thing you can do is include a contingency in your lump sum contract with language that allows you to use the contingency for this purpose.  The difference between the allowance and contingency is there is still contractor-risk with the contingency if the costs exceed the contingency agreed upon in the contract.  Finally, you can include a carefully crafted material escalations provision that does not require you to bear the risk of certain material escalations.  

 

If you are entering into a Guaranteed Maximum Price (GMP) contract, you want to factor this escalating material pricing into the GMP cap.  Most GMP contracts have (and, if not, they should have) a line item for contingency.  The contingency amount should be increased (or there should be a separate contingency) to account for this issue with language that allows the contractor to use the contingency for escalating material pricing.  Alternatively, you can identify that due to the uncertainty associated with steel or aluminum pricing (or perhaps any other pricing) the GMP includes certain allowance items which will increase the contract through change order if the cost of the item exceeds the allowance. Finally, you can include a carefully crafted material escalations provision so that you are not bearing the risk of this uncertainty, i.e., material escalations entitle you to a change order. 

 

The politics behind the tariffs are irrelevant.  What is relevant, however, is the uncertainty behind the impact and pricing associated with the imposition of tariffs and the risk assessment that needs to be factored in to deal with this uncertainty.   This uncertainty affects the costs and potential time associated with obtaining raw materials to fabricate and incorporate into an owner’s construction project.

 

If this issue is currently impacting an on-going project, be proactive and consult an attorney that can review the language in your existing contract(s) and help, as need be, craft a change order request or claim based upon what has already been agreed to.

 

 

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.

 

CONTRACTORS: REVISIT YOUR FORCE MAJEURE PROVISIONS TO ACCOUNT FOR HURRICANES

 

shutterstock_43059370We now know and can appreciate the threat of hurricanes.  Not that we did not appreciate the reality of hurricanes–of course we did–but Hurricane Harvey and Hurricane Irma created the type of actual devastation we fear because they hit close to home.  The fear came to life, creating panic, anxiety, and uncertainty.  It is hard to plan for a force majeure event such as a hurricane because of the capriciousness of Mother Nature.   But, we need to do so from this point forward.  No exception!  And, I mean no exception!!

 

A force majeure event is an uncontrollable event that cannot be anticipated with any degree of definitiveness.   The force majeure event will excusably delay or hinder performance obligations under a contract.  One type of force majeure event is a hurricane—an uncontrollable and unforeseen act of Mother Nature.   

 

Standard construction contracts will contain some type of force majeure language.  The language will entitle the contractor to an extension of time to perform since the force majeure event will have excusably delayed the contractor’s performance.  I am not going to rehash that standard language because this language needs to be modified and tailored to address the major risk of a hurricane.  Not only is time impacted, but money is impacted too.  We need to consider the total impact of a hurricane versus considering the impact in isolation or in a vacuum. 

 

Take a look at your present construction contracts.  Revisit the force majeure language.  Does this language adequately address the time and monetary impacts associated with a hurricane?  If it does, great!  If it does not, or can be written much better, now is the time to make this language a MUST-INCLUDED provision in your construction contracts because this risk is real.  It is not illusory and it will be a real risk during hurricane season.   If you do not know or are unsure as to the language, please engage a construction attorney to review your contracts or propose standard language for you catered to your business needs.  Even if you feel comfortable with the language, I would still encourage you to have a construction attorney review the language and provide constructive feedback on the language.  At this point, there is no excuse to neglect this risk or minimize the potential of a devastating time and cost impact.  Regardless of the type of construction work you perform, this risk needs to be addressed. Any owner should appreciate this risk because it is a reasonable risk that needs to be accounted for with certainty in your construction contract. Is this a risk you completely want to assume from a cost standpoint?

 

I have drafted numerous force majeure provisions tailored to the risks of a project and business objectives of a client.  I have drafted specific provisions or negotiated provisions dealing with the risk of a hurricane.   Based on this experience, here are my suggestions when considering the risk of a hurricane and the potential time and monetary impacts associated with the risk:

 

1)   Make sure there is builder’s risk insurance covering property damage during construction.  Builder’s risk insurance policies are specialized property insurance policies for construction projects.  Make sure the policy does not exclude hurricanes.  In other words, you do not want hurricanes to be an excluded peril, particularly if there is the chance your work will take place during the hurricane season and/or you are performing work where storm surge or flooding caused by a hurricane can be an issue.   If there is a sub-limit for hurricane-caused damage, know what that sub-limit is.   You want to know a) what property and materials will be covered for hurricane-caused damage, b) whether costs to protect the property and materials from the hurricane are covered, c) whether the policy covers repair costs, and 3) whether the policy covers delay-type damage caused by the hurricane.   Get a copy of the builder’s risk policy in advance.  This way you know whether or not you need to supplement the policy accordingly or, alternatively, you want specific perils covered before that policy is bound.  In fact, you will likely want to supplement this with a construction equipment / inland marine insurance policy.  Work with an insurance broker that has experience with construction projects to ensure you have the right insurance in place for the project and your business.

2)   Make sure your contract specifically identifies a named storm such as a hurricane as a force majeure event.  Make sure your contract specifically identifies a hurricane as a force majeure event.  Be specific.  A hurricane should be an event that entitles you to additional time to perform since time will be spent protecting the work and tying down equipment and materials, time will be spent dealing with the actual hurricane, and time will be spent assessing the damage, remediating the damage, and ramping back up. 

3)   Make sure your contact entitles you to delay-related compensation associated with a hurricane such as a force majeure event.  A time extension for a hurricane is a given.  But, what about compensation for the impact?  Your project schedule is not going to include the risk of a hurricane, as there is no reasonable way to include that time in a project schedule.  Hence, the time extension.   As we know though, time is money.  You want to include a provision that entitles you to compensation for the time impact.  The provision should entitle you to utilize contingency money for any delay or, perhaps more appropriately, entitle you to a change order for the time-related costs.  (I have even drafted provisions that include a specific force majeure contingency to address associated costs for a force majeure event.)  You can even stipulate to a daily rate for such time-impact costs (which I have also done) caused by a hurricane or force majeure event.  A hurricane will not only prevent you from performing, but it will shift your performance to essential activities (that will not be included in your schedule).  It is reasonable for impact-related costs to be recoverable for such a force majeure issue.  It is unreasonable for the risk to be entirely shifted to the contractor because Mother Nature is certainly a risk that a contractor cannot control.

4)   Make sure your contract entitles you to recover costs associated with preserving and protecting work in-place, materials, and equipment.  As mentioned, a hurricane will divert your performance to progressing the work to preserving and protecting work in-place, materials, and equipment.  All of this needs to be protected from prolonged, heavy wind activity, torrential rain, and potential surge and flooding.  There are costs associated with this and you want to make sure this is performed to minimize the likelihood of any loss.  You also want to make sure you have time to perform this work.  Be safe, rather than sorry, and do not wait to the last minute to see what direction the hurricane ultimately pursues.   Hurricanes, as we know, are unpredictable and take unpredictable paths.  We need to make sure we have time to not only preserve and protect the work, materials, and equipment, but that our employees and subcontractors (and their families) safely make the right decisions to protect their homes and families.  Similar to the above, make sure your contract specifies how you get paid for this type of work – whether through contingency funds or, perhaps more appropriately, a change order.  Notifying the owner in writing in advance of the protective measures being performed is always a good idea.  If the owner elects not to implement such measures because it does not want to bear the cost, then the owner is evidently bearing risk.

5)   Know your contractual notification requirements.  Your contract probably includes notification provisions to address time impacts and costs associated with protecting the work.  Make sure these provisions are reasonable in light of a hurricane or force majeure event.  Your priorities when dealing with a hurricane, in particular, will be shifted.  For this reason, you want to make sure the notification provisions are not unreasonably onerous and are more than reasonable to account for the issues you will be dealing with.  Think these issues through.  Remember, not only will you be dealing with the issues associated with the construction project, but there will be internal issues dealing with the safety of your employees, their families, and any subcontractors you hire.

 

 

Do not panic if your contract currently does not, in your opinion, sufficiently address all of these items.  You can address this moving forward.  You should address this moving forward.  Again, no excuses.  And, again, do not be reluctant to hire a construction attorney that can best protect your rights moving forward to account for this risk that we know is REAL.

 

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.