Recent global climate shifts have brought extreme weather conditions to the forefront of our concerns. (Image source: FTI Consulting)
Ahmed Ismail, Managing Director, FTI Consulting, and Samuel Whitehouse, Managing Director, FTI Consulting write for Technical Review Middle East. Read on:
Recent global climate shifts have brought extreme weather conditions to the forefront of our concerns. From heat waves to floods, these changes are becoming increasingly alarming.
Here in the UAE, we experienced significant weather disruptions earlier this year with the April floods, which posed challenges for various sectors, including construction.
To help construction contractors be prepared in case of similar events in the future, we will delve below into effective strategies for mitigating the detrimental effects of adverse weather on construction projects in the UAE.
Contractual entitlement
In most standard forms of contract, to make a successful claim for time and/or additional payment, the contractor must demonstrate that the weather event was ‘exceptional’ and not just merely adverse. The fact that there was heavy rain and floods is not, in itself, sufficient to obtain an extension of time or recover additional payment.
The most commonly used contract in the UAE is the FIDIC 1999 suite. Using the FIDIC 1999 Red Book as the example, Sub-Clause 8.4(c) [Extension of Time for Completion] provides that a contractor is entitled to an extension to the Time for Completion where it can demonstrate that “…exceptionally adverse climatic conditions...” have occurred.
What constitutes ‘exceptional adverse weather’ is frequently not explained in older standard forms of contract and it will generally require the contractor to demonstrate, with the aid of past meteorological records for the location of the site, that the event was a 1 in 10 year, or more, event.
Some guidance to that effect is provided in the 2017 FIDIC suite. In Sub-Clause 8.5(c) [Extension of Time for Completion], the contractor must demonstrate that the event was unforeseeable by an experienced contractor at the date of tender based on any climatic date provided by the employer under Sub-Clause 2.5 [Site Data and terms of Reference] and/or relevant climatic data published for the location of the site.
As such, under either form of contract, a successful claim will require a detailed comparison between the weather event that occurred and the weather patterns for a number of years preceding the event.
Notification requirements
It is essential that contractors notify the employer promptly in accordance with the contract when adverse weather conditions have affected the project progress and to keep sufficient contemporaneous daily records on how the works have been affected. This will allow the contractor to demonstrate any additional time and cost it may be entitled to.
Recommended best practices
In order to effectively harness the above factors, it is vital that both the contractor and employer know, and understand, the requirements of their contract when adverse weather events occur.
Sending a notification under the contract for the right to claim for adverse weather conditions is essential. It is also vital for the contractor to document the damage with daily, weekly, and monthly reports, using photographs and videos if necessary.
Once the extent of any rectification work has been established, the contractor should estimate the extent of any delay and the costs involved and seek to agree these with the employer.
By understanding and implementing contractual provisions and taking immediate action to document damage and prepare for site reinstatement, parties involved in construction projects can minimise damage and resultant financial losses.
It is recommended that project parties also consult a legal professional or an expert familiar with UAE construction laws to ensure that they adhere to the contract requirements and protect their rights under their contract.
