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Changing Trend in Risk Allocation - Differing Site Conditions (CCL272T)

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Pre Recorded Webinar
90 minutes
Event Description
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Understand what must be proven to prevail on a differing site condition claim

One of the oldest clauses used in construction contracts is the Differing Site Conditions clause, which was created by the U.S. Federal government in 1926. It is widely accepted that the objective of the clause is to transfer the risk of latent site conditions to the owner, thereby enticing contractors to lower the contingency cost at the time of bid. The clause promises that if the contractor comes across a “materially different” condition during the enforcement of the work, the owner will compensate the contractor for the resulting time and/or cost. This standard clause have been used widely in both private and public contracts for almost 90 years. Most practitioners in the construction industry think they know what the clause means and how it operates. But, in the words of one of the mid-20th century “deans” of construction law, Max E. Greenberg, “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 Court and Board cases have increased the contractor’s risk concerning differing site conditions.

In this webinar, expert speakers Steven A. Collins and James G. Zack, Jr., CCM, CFCC, FAACE, FFP, FRICS, PMP will provide you with a thorough discussion of the Differing Site Conditions clause and how the typical understanding of this 90 year old clause is being eroded by Court and Board decisions.

Session Highlights:

This webinar --

  • Discusses the definition of a differing site condition and why there is a need for a Differing Site Conditions clause in a construction contract;
  • Sets forth the history and purpose of the clause and examines the modern Differing Site Conditions clauses;
  • Discusses the terms “indications” and “material difference” and presents an overview of the impact of contract disclaimers related to differing site conditions; 
  • Explores what conditions are generally not covered by the clause and conditions that are sometimes included within the scope of the clause;
  • Goes on to list the six part test for a successful differing site conditions claim and five additional contractual requirements contractors must comply with in order to prevail;
  • Examines the contractor’s duty to continue work; 
  • Explore briefly the “reverse differing site condition claim” - an owner claim which can be asserted against the contractor seeking recovery of funds from the contractor while encountering conditions “materially better than anticipated”;
  • Explores a number of Court and Board of Contract Appeal decisions that appear to be slowly eroding the traditional risk allocation commonly accepted under the Differing Site Conditions clause, along with lessons learned from each case;
  • Provides a list of practical recommendations for both owners and contractors dealing with the risks of differing site conditions

Key Takeaways:

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

Who should attend?

  • Attorneys dealing with site condition claims
  • Owners and owner representatives managing capital improvement projects
  • Contractor executives, project managers, project sponsors and project control personnel
  • Construction managers and design professionals performing services during construction
About Our Speaker(s)

Steven A. Collins | Construction Projects SpeakerSteven A. Collins
Mr. Collins is a Director in Navigant's Global Construction Practice and works out of Navigant’s Boston office.  Mr. Collins possess more than 28 years of diverse construction and consulting experience.  His broad range of construction experience encompasses direct management of large complex projects as well as di... More info


James G. Zack Jr. | Construction Claims Management SpeakerJames G. Zack Jr.
Jim is the Senior Advisor to the recently formed Ankura Construction Forum™. The Forum strives to be the construction industry’s resource for thought leadership and best practices on avoidance and resolution of construction project disputes globally. Jim was the founder and Executive Director of the Navigant Constr... More info

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    Event Title: Changing Trend in Risk Allocation - Differing Site Conditions
    Presenter(s): Steven A. Collins, James G. Zack Jr.

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