By Suzannah Newboult
Sandstorms and high wind speeds prevent the operation of cranes, extreme temperatures can impact on productively, and even unexpected heavy rainfall can effect site operations in Qatar. But is it the contractor or the client who should suffer the consequences of bad weather?
Most contracts will expressly allocate risk for adverse weather conditions. FIDIC contracts make provision for “exceptionally adverse weather conditions”. In the unamended form, where “exceptionally adverse weather conditions” occur the risk is shared: the contractor will benefit from an extension of time but recover no loss and expense; the client recovers no liquidated damages.
The allocation is straightforward but the provision far from easy to apply.
When can the weather conditions be said to be exceptionally adverse? The phrase in itself raises arguments. It is distinct from exceptional adverse in ICE forms of contract which suggests the weather needs to be exceptional and have an adverse impact on the works. The FIDIC “exceptionally adverse” could be argued to need only to have an adverse impact on the works, albeit an exceptionally adverse impact. The weather itself need not be exceptional.
It is commonly considered that the weather itself must be exceptional. It does not require a hurricane or typhoon or other extreme forces of nature (which should in any event fall within the contractual or civil code provisions for force majeure) but it must be exceptional in severity eg. faster wind speeds or higher temperatures; or in frequency or duration eg. more frequent sandstorms or a prolonged period of rain. That condition must be then be exceptional in the context of the time of year and for that particular location.
Proving that the weather is exceptional requires analysis of the present conditions against historical data, provided such data is available. If data is available it may not be sufficiently detailed. A daily average might not capture the weather event suffered. There is a weather station at Doha International Airport, if that is sufficiently close enough to your site for a meaningful comparison. Records date back to the 1970s.
The tipping point between anticipatable weather conditions and exceptional weather conditions could be tricky to find. That decision is a subjective one. Other forms of contract that have tried to combat this problem by incorporating measure, for example, that the duration or intensity of the weather condition has not been experienced more than once in every 10 years.
Parties sometimes seek to bring in similar provisions as amendments to standard forms such as FIDIC to introduce certainty, but parties should be sure to take care to check availability and reliability of historical records before doing so.
It is also worth noting that the exceptional weather need not necessarily have happened at the site.
What is clear is the impact must be “adverse”. This means that the contractor will have to demonstrate the impact the weather has had upon the works. If there is no delay to the works, there will be no claim. This means the contractor will have to show the cause and effect of the weather conditions.
Detailed records should be kept recording the impact initial and ongoing. Firms should be aware the complications that will arise if the works are not on programme due to an existing delay at the time of the adverse weather conditions.
Finally, do not forget that most contracts in Qatar, like FIDIC, include strict requirements for giving notice of an event giving rise to a claim. The time period for informing the client usually runs from the occurrence of the event. Additional deadlines may require notice of the anticipated or actual consequences of the event.
Construction Week