Weather Days, Late RTUs, and Unpriced Field Work
You are the project manager on a $420,000 TPO re-roof of a 14,000 sq ft retail center, contract dated May 1. Terms: 60 calendar days to Substantial Completion; liquidated damages of $500 per day; weather days excluded from the 60 only if requested in writing within 5 days; unit prices of $95 per sheet of sheathing and $2.10 per board foot of taper insulation; and no extra work is authorized without a written change order signed by the Owner. Work started June 1. During tear-off your foreman found saturated gypsum deck and active ponding at two drains; the Owner's rep said on site, go ahead and fix it. You installed 2,800 board feet of taper and replaced 46 sheets of sheathing. The Owner also delivered three RTUs nine days late, delaying your final membrane tie-in by nine days. You hit Substantial Completion August 12. Your foreman logged 14 lost rain days, but no written extension requests were ever filed.
1. Determine whether liquidated damages apply and in what amount. Show the day count, and identify which arguments you can and cannot rely on.
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Day count
- June 1 to August 12 inclusive: 30 (June) + 31 (July) + 12 (August) = 73 calendar days
- Contract allowance: 60 → 13 days over on the face of it
- Owner-caused RTU delay: 9 days, and it is on the critical path (final membrane tie-in), so it is both excusable and compensable. 73 − 9 = 64 → 4 days over.
- Rain: 14 days logged, but no written request within 5 days.
Bottom line: 73 − 9 − 14 = 50 chargeable days. No liquidated damages are owed.
What you can rely on:
- Owner-caused delay defeats LDs for that period outright; you cannot be assessed for delay the Owner created.
- Documented weather days that the Owner's own rep saw in daily reports and schedule updates will usually be credited even where the notice provision was missed - a notice clause is a defense to a claim, not a license to convert excusable delay into breach.
- LDs must be a reasonable forecast of actual damages, not a penalty. $500/day on a $420,000 contract (about 0.12% per day) is defensible, but the Owner still must show the delay caused that loss.
What you cannot rely on: the missing written extension requests. That is a genuine contractual failure and it is why you may have to settle rather than win outright.
Fallback position: if weather is disallowed, exposure is 4 days × $500 = $2,000, which is smaller than the extended general conditions claim you hold for the 9-day RTU delay (supervision, equipment, temporary protection). Present the analysis as a trade, not a fight, and submit the written time-extension request now with the daily reports attached.
2. Can you recover for the 2,800 board feet of taper and the 46 sheets of sheathing? Calculate the value and explain the theory and its weaknesses.
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Value
- Sheathing: 46 × $95 = $4,370
- Taper: 2,800 × $2.10 = $5,880
- Total: $10,250
Theory. The contract's unit prices are a pre-agreed pricing mechanism. The signed-change-order clause governs authorization, not price - so the dispute is narrow: was the work directed? The Owner's rep directed it in the field and the Owner knew of and accepted the benefit. Under Florida law an oral directive from an owner's representative with apparent authority, followed by the owner's knowledge and acceptance of the benefit, can support recovery in quantum meruit or unjust enrichment even where a written-modification clause is enforced. Unit prices in the contract make the quantum meruit measure easy to prove.
Strongest substantive argument - differing site condition. Saturated gypsum deck and active ponding at two drains are latent conditions, not discoverable until tear-off. That is the classic concealed-condition trigger, and it was the Owner's design assumption (not your scope) that was wrong.
Weaknesses:
- No written confirmation at the time. The signed-CO clause and the no-oral-modification clause will be enforced unless you show waiver or estoppel.
- The Owner will argue deck replacement was in your base scope and that a contractor has a duty to investigate visible ponding before bidding.
- The rep's actual authority is unknown - get his name, title, and the date and time of the directive from your foreman while it is fresh.
Action: issue a written change order now at $10,250 plus the time impact, referencing the unit prices and the date of the field directive. A written confirming memorandum issued after the fact is still far better than nothing; do not alter the original daily report.
3. What documentation and notice should have existed, and what is your best recovery strategy from this point?
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What should have existed
- A written field directive or work order signed by the Owner's rep before the taper went down, or within 24–48 hours after.
- A written time-extension request within 5 days for every rain day and for the RTU delay.
- Daily reports recording crew counts, weather, work area, and any owner instruction by name and time.
- Photographs with timestamps of the saturated deck and standing water at the drains, before removal.
- Delivery tickets for the taper and sheathing, keyed to the roof area.
- Schedule updates showing the RTU delivery on the critical path.
Recovery strategy now
- Assemble the file: daily reports, photo log, delivery tickets, the contract unit-price schedule, and schedule updates.
- Submit the $10,250 change order in writing with a cover letter that frames it as a concealed/differing condition, not a contractor error.
- Submit the time-extension request and a separate claim for 9 days of extended general conditions caused by the late RTUs.
- Present the LD analysis (50 chargeable days) as your position, with the $2,000 fallback already calculated - this converts the conversation from 'you owe us LDs' into a net settlement.
- Preserve lien rights: record a Claim of Lien within 90 days of last furnishing. Under F.S. 713.06 a lien covers extras furnished with the owner's knowledge.
- Do not sign a final release, do not accept a payment marked full and final, and do not stop work. Use the contract's mediation or arbitration step, and lead with the schedule and the photographs - they are the strongest exhibits you have.