Was the Cold Snap a Force Majeure?

When homeowners in a typically temperate climate find out that winter temperatures are dropping, they wrap pipes, cover plants, and drain water from their sprinkler systems. When contractors find out the same, they consider preparing their jobsites for the same conditions— and whether their labor forces will even be able to safely travel to the job. This is especially true in a place like Houston, where schools are more likely to be closed, roads are less likely to be salted, and tires are less likely to be all-weather treaded.

In addition to taking the precautionary measures needed to secure their sites and keep their workforces safe, contractors should check their contracts to see whether subfreezing temperatures, ice storms, or power outages are force majeure events under contract. A well-drafted force majeure provision may give the contractor both time and money associated with delays and productivity losses caused by the event.

If the event is specifically listed as a force majeure event, contractors should take all of the contractually agreed steps they would in the event of a hurricane or similar condition - notice, mitigation, and a claim or proposed change order under applicable contract. This will make it more likely that the force majeure event will be treated as such by the contractor or owner upstream.

If the event is not specifically listed as a force majeure, the contractor should still check to see whether there is a general "catch-all" provision for sudden and unforeseen circumstances outside the contractor's control. If so, then this cold-weather event may still be covered if the conditions are similar to other force majeure events listed in the contract.

Now that the sun has come out and everybody has returned to work, the contractor should continue to monitor and report the impact of any critical-path delays caused by the event.

Finally, if a contractor's force majeure provision was not so well-drafted as to account for this event like it would a flood or hurricane, the contractor should keep those cold days in mind when it negotiates its next contract.