Differing Site Conditions – Whose Risk Is It?

Created by the U.S. Federal government in 1926, the Differing Site Conditions clause is one of the oldest used in public and private construction contracts.  Generally, the object of the clause is to transfer risk of latent site conditions to the Owner, thus enticing contractors to reduce their contingency cost at the time of bid.  The promise of the clause is that if the contractor encounters a “materially different” condition during the execution of the work, the owner will compensate the contractor for the resulting cost and/or time.

Most construction industry practitioners think they know what the clause means and how it operates. But, as mid-20^th century “dean” of construction law, Max E. Greenberg says: “It ain’t necessarily so!”

Over the years, the Courts and Boards of Contract Appeals have been slowly changing the interpretation of risk allocation under the clause.  A series of cases have increased the contractor’s risk concerning differing site conditions.  This webinar will explore the changes in risk allocation.

Participants will:

• Learn the intent of the Differing Site Conditions clause and how it operates.
• Learn what conditions are and are not covered by the Differing Site Conditions clause.
• Understand what must be demonstrated to prevail on a differing site condition claim and what contractual requirements must be complied with in full.
• Become familiar with several Court and Board of Contract Appeal decisions that are changing the “traditional” allocation of risk under the Differing Site Conditions clause.

Instructor: James G. Zack, Jr. is Principal of James Zack Consulting, LLC, a construction claims consultancy dedicated to helping Owners and Contractors complete projects in the field, not arbitration or court. He is a recognized, published expert in mitigation, analysis, and resolution or defense of construction claims and disputes. In his 49-year career, he has been involved in public and private projects throughout the U.S. and 39 countries, working with Owners and Contractors on 5,000+ claims.

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