Impact of the winter on construction projects

As cold weather approaches, it is important to keep in mind the impact of the winter on construction projects. Weather and the changing conditions need to be considered, not only for the safety of workers, but also productivity, timelines and the sequencing of work, changes, and delays.

The completion of day-to-day tasks, outdoors, in cold, snowy, and icy conditions, with thick gloves and additional breaks to warm up simply means it takes longer. Equipment may not run as well or need more time to warm up. The snow and ice may need to be cleared from an area before work can begin. A large snowfall may mean the project site is shut down for a day or two, even in Calgary. All of this adds up to lost time and increased costs, which are often not compensated.

Even the work of contractors within a building may be impacted by the weather as a result of delays in completing the building envelope and preceding work, meaning the interior work is similarly delayed.

The effect the weather may have on your work should be taken into consideration when you bid the project and as work continues until completion. 

When you bid the project ask yourself: How critical is the temperature to your work? When is the project expected to start? Will you need any specialized equipment or modifications to the material being supplied if your work is being performed during the winter? With the answers to these questions in mind, the most important question to ask is “Does your price account for these additional costs and risk factors?”

When you enter into your contract, before you start work, evaluate the initial project schedule and consider if the start of your work has been delayed and if sufficient time has been allocated for the completion of your work given the time period in which it is scheduled to be performed. Has any additional time been included into the project schedule to allow for any weather-related delays? Have you accounted for any potential additional costs? Two (2) days to pour concrete in August may be sufficient, but in November, you may require more time as well as heating and hoarding, therefore also increasing your costs.

If the answer is no, it is critical that concerns regarding the schedule and costs be quickly raised in writing. While you may view such correspondence as starting the project on the wrong foot, a failure to adequately provide notice of your concerns early on may preclude you from advancing a claim for additional costs and time as the project progresses.  

Similarly, while you are working on the Project, it is critical to comply with any contractual notice requirements, whether they are related to the weather or not. Notice is required even if there is no written contract, or if the contract does not include a requirement to provide notice of delays or changes.

It is prudent to provide notice as soon as you anticipate having to make a claim for a change in the contract price or the contract time. Even if notice is not expressly required by the contract, or if there is no written contract, providing notice is still important to preserving your right to make a claim for additional money or time because notice to another party provides them an opportunity to mitigate their damages. 

When providing notice, review and ensure you comply with any express notice requirements. Contracts typically provide that where notice in writing is required, the notice must be given in a specific manner and within a particular time. The contract may set out:

• the method in which notice is required to be provided (e.g. written correspondence, e-mail, fax);
• the time in which notice must be provided;
• what information the notice is required to contain, including any requirement for detailed accounts; and,
• any follow up or requirements to provide further information. 

The contract terms may also include an express waiver of claims if these requirements are not strictly met. Moreover, notice that is given but does not meet the contractual requirements could still result in your claim being denied by the owner, general contractor, or the courts.

Contractors should review and become familiar with the entire contract before it is signed and consult the contract every time an incident arises that may entitle the contractor to a claim for additional costs or contract time. While you may be hesitant to provide notice of delays and additional costs for fear of damaging your relationship with the other party, providing notice as required does not have to be antagonistic, it simply preserves your right to make a claim should you choose to do so. It may also offer a defense to a claim by the owner for liquidated damages, if provided in the contract, or their costs associated with your failure to meet the project schedule.

Please contact Goodfellow & Schuettlaw (www.gfslaw.ca / 403-705-1261) if you have any questions regarding your contract and notice requirements.