Substantiation of bad weather days when exceeding the construction period

A contracting agreement regularly stipulates the period within which the contractor must deliver a home to be built. This construction period can be expressed in ‘workable days’. If the contractor fails to deliver within the stipulated number of workable days, the client may demand a contractual penalty. The amount of the penalty depends on the number of days by which the construction period is exceeded. A discussion often arises about which days are considered to be bad weather days (and for which therefore no penalty is owed). Construction lawyer Denise Janssen discusses a recent arbitration award from the Arbitration Board for the Building Industry on this subject.

When is a day considered to be a bad weather day?

In this case, the contracting agreement stipulated that the contractor had to deliver within 320 workable days. The general terms and conditions General terms applicable on all contracts of a corporate business.
» Meer over general terms and conditions general terms and conditions of Woningborg applied to the contracting agreement. Article 11 of these general terms and conditions determines when days are considered bad weather days. This is the case when, due to circumstances beyond the contractor’s liability, the majority of the employees or machines cannot work for at least five hours.

Substantiation of contractor: reference to websites with weather reports

The clients claimed that the contractor had exceeded the construction period by 149 days. They therefore claimed a penalty of €224.26 per day. The contractor claimed that more than 50 days were bad weather days. He tried to prove this by referring to weather reports by the Royal Netherlands Meteorological Institute (KNMI) that could be found on various websites.

Substantiation with websites is insufficient

The clients argued that a reference to a website containing weather reports is insufficient substantiation. The Arbitration Board for the Building Industry agreed. After all, the fact that there may be rain or strong wind for more than five hours during a day does not mean that the criterion of Article 11(1) has automatically been met. This concerned a renovation of an existing building. The Board reasoned that work that was not weather sensitive, on the inside of the building, clearly also had to be carried out. According to the Board, the contractor had failed to substantiate when he could not work for at least five hours on all those days.

Substantiation with a photo is insufficient

The Board also held that a photo of the snow-covered building site was insufficient to demonstrate that that day was a bad weather day. According to the Board, the contractor had failed to specify which activities had to be cancelled that day due to the inaccessibility of the building site because of the snow. Moreover, the photograph showed that construction machinery had been driven through the snow; the building site was apparently not that inaccessible.

Lesson for contractors: report both the weather and the work

The lesson to be learned from this award is that contractors must be able to show not only what the weather conditions were on a bad weather day, but also why work could not be performed for at least five hours on that day due to the weather conditions. Therefore, the contractor cannot suffice with references to websites with weather reports of those days. It is recommended that a report or logbook be kept of both the local weather conditions and the work to be carried out. Especially in the case of a water and windtight building, should the contractor also take into account that he could carry out alternative work that could continue despite bad weather conditions.