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Protecting Yourself and Your Profit
contracts for your construction project. Modern construction contracts typically have notice requirements that can cause you to completely waive your claim for weather-related changes if you don’t give timely notice. Check your change order clause to see what kind of notice you may need to give.
Return to Baseline
For winter-damaged equipment or work, it may be enough to simply claim the replacement cost as damages. When delays or impacts are involved, however, you need to go see what you were entitled to before making your claim. That is, did the “baseline” schedule (as amended) entitle you to do your work in the summer or fall, but now you are forced to work in the winter because of delays? Or was your work sequenced after building close-in so that you were entitled to install your project work in a conditioned space, but now you must work in the freezing cold? Your contract will have the answer to what you were entitled to, and thus what you may recover as an impact or delay to your work.
Don’t Forget the Eichleay
When you are seeking delay damages for cold-weather changes, remember to add a claim for home office overhead. That is, under the Eichleay line of cases, you can be entitled to recover the loss to your home office caused by delays on a project. When you have a project ongoing in the field, the income from that project goes in part to fund all of your home office expenses like insurance, rent, salaries, etc. When you are delayed on a project, that income is no longer funding your home office expenses, and you may be entitled to recover for that loss.
The Pen is Mightier Than the ‘S’ Word
You may have a strong urge to drop an expletive or 12 when a cold-weather change occurs. But the best first step is to give written notice to whoever is upstream from you in the chain of
If you want to learn more skills and tips about avoiding construction claim pitfalls, you can receive a free copy of my book “The Subcontractor’s Roadmap to Getting Paid for Extra Work” by emailing me at email@example.com.
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