Every owner, architect, contractor and subcontractor should be concerned about temporary heat for any building project which will be under construction between November and March.
Every owner wants a project built as fast as possible, not only to have use and/or income from a building, but also to avoid burdensome construction costs, which include costs relating to temporary heat.
The architect has to define a schedule and specify who and how temporary heat will be supplied, always keeping in mind the budget for the project.
The general contractor, who is responsible for maintaining progress during the cold months, must balance the cost of temporary heat against the need to remain competitive in its pricing. Reliance on the Farmer’s Almanac to determine what amount to carry for temporary heat has its pitfalls!
How is temporary heat handled? On private construction it is a matter of negotiation at all levels. Between the owner and general contractor, the cost can be placed exclusively with the general contractor. Or it can be dealt with by an allowance so that there is some sharing of risk between the two. Or the cost of temporary heat can be minimized by extending the schedule to reflect a decline in progress during the winter months.
As between the general and any subcontractor, the subcontract must clearly set forth the conditions under which the subcontractor will have to operate in the winter, and who has responsibility for providing temporary heat. The subcontractor needs to be assured that it can do its work during the winter months to meet schedule, and to install materials that are weather sensitive. Cold temperatures impact both the performance of the material and the productivity of the installers.
Problems usually arise when a proposed schedule calls for minimal use of temporary heat. Inevitable delays force the use of additional heat not originally contemplated. The party causing the delay may suddenly face a substantial claim for additional costs of temporary heat and other damages. The only way to avoid claims and litigation over temporary heat on private work is to clearly spell out responsibility in the contract. The concerns are different on Massachusetts public building projects. On public jobs, temporary heat is controlled by a statute, M.G.L. c. 149, §§44F(1) and G(D). The statute requires that the specifications include provisions that the general contractor install weather protection and furnish adequate temporary heat between November and March. The purpose of the statute is simple - to assure that work on a building can progress during the winter months, and that the cost of temporary heat is kept at a minimum by placing the responsibility with one party, the general contractor, and not each subcontractor.
There are limitations to this requirement that the general contractor furnish temporary heat. The general contractor is not required to provide enclosures or heat for work such as site work, excavation, pile driving, steel erection and roofing.
A general contractor may use the permanent system for temporary heat. However, certain conditions must be met first. The owner must grant approval, the building must be enclosed, and the permanent heating system must be tested and ready to operate. The general contractor must pay for all costs of operating the permanent system and must clean and restore that system prior to acceptance of the building by the owner. Also the general contractor must assure that the use of the permanent heating system for temporary heat does not affect any guarantee to the owner that would begin to run when the owner accepts the building.
The general contractor may subcontract any of the temporary heat or enclosure work to third parties, but the responsibility to provide and pay for the temporary heat and enclosure always lies with the general contractor.
Don’t let the favorable weather conditions of a New England spring, summer and fall lull you into complacency when you are bidding a job that is going to proceed during winter months. Cold weather not only can nip your ability to perform, it can also affect your pocketbook. Plan for it and make sure your contract clearly defines who provides and pays for the temporary heat you need to perform work in an orderly and productive manner, and in conformance with specifications and manufacturers’ recommendations.
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