In government contracting, a contractor is entitled to a time extension for “unusually severe weather.” However, this time extension is typically not compensable (meaning you get time, but not additional compensation). However, “a contractor may bring a claim for compensable delay when government delay pushes a contractor’s performance into a period of worse seasonal adverse-but not unusually severe-weather.” Appeals of – Thalle Construction Company, ASBCA No. 63685, 2025 WL 2496328, n.10 (ASBCA 2025) (citation omitted).

In a recent appeal with the Armed Services Board of Contract Appeals, a contractor pursued a weather delay claim. The contractor sought 39 days of adverse weather between the adjusted contract completion date and the actual substantial completion date claiming that the government pushed the contractor’s last 262 days of performance into worse seasonal adverse weather.

A contractor is entitled to an additional equitable adjustment when a government delay pushes a contractor’s performance into a period of seasonal adverse weather— such as a rainy season—but a contractor is not entitled to such an adjustment when the government’s delay pushes the contractor’s performance into a period of unusual adverse weather because the additional weather delay is not reasonably foreseeable in that case.

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Rather, to determine if government delays pushed a contractor’s performance into a period of worse seasonal adverse weather, we compare the seasonal adverse weather that the contractor experienced during the actual period of performance with the seasonal adverse weather that the contractor would have experienced during the period of performance, but-for the government delays (But-For Period).

Appeals of – Thalle Construction Company, supra (citation omitted).

In this appeal, the Board looked at the anticipated adverse weather delays provided by the contract during the delay period and compared that with the But-For-Period, which was the adverse weather that the contractor would have experienced during the period of performance, but for the government delays. Here, the But-For-Period was the last 262 days of performance through the original contract completion date.

If pursuing a weather delay claim, remember, there are two ways you can package it. One, an unusually severe weather claim. However, these are typically not compensable in government contracting. Two, the argument that the government delay pushed you out into worse seasonal adverse weather, which is compensable, but requires you to do a comparison factoring in the But-For-Period.

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.