Mark Twain once said, “everybody talks about the weather, but nobody does anything about it.” In my latest article in the Daily Journal of Commerce, I argue that, in fact, owners and contractors have a chance to do something about the weather when they write their contracts.
Incorporating a contingency amount into a work bid can help a contractor mitigate the risk of “unforeseen difficulties,” like bad weather, by spreading the risk over multiple projects. In addition to bad weather, a project owner may write a contract to address specific risks, such as unexpected soil conditions or rising prices, or may include a general “force majeure” clause that is triggered by unforeseen difficulties in the work. Without a specific weather clause, a contractor may have difficulty collecting damages—even in the case of very bad weather. Oles examines the case of Donald B. Murphy Contractors, Inc. v. State of Washington, 40 Wn. App. 98 (1985) as an example.
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