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Changing Trends in Risk Allocation - Differing Site Conditions (CCLN51E)

Presented by: James G. Zack Jr.
(*) Single User Price. For multiple users please call 1-844-384-4744
Pre Recorded Webinar
90 minutes
Event Description
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If You Think You Understand Differing Site Conditions, Think Again!

The Differing Site Conditions clause created by the U.S. Federal government in 1926 is one of the oldest clauses the construction industry has been using. The object of the clause is to transfer the risk of latent site conditions to the owner, thus tempting contractors reduce their contingency cost at the time of bid.

The clause promises that the owner will reimburse the contractor of the cost and/or time incurred, if the contractor comes across a "materially different" condition during the execution of the work. This standard clause has been used extensively in both private and public contracts for around 90 years. Most professionals in the construction industry think they fully understand differing site conditions and how it operates. But it is not necessarily so!

This is because, over the years, the Courts and Boards of Contract Appeals have been slowing 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.

This session by our expert speaker, James G. Zack, Jr., a recognized expert in mitigation, analysis and resolution or defense of construction claims, will provide you with a thorough understanding 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.

Key Takeaways:

  • Learn about 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 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 Appeal decisions which are changing the "traditional" risk allocation under the Differing Site Conditions clause.

Session Highlights:

  • Differing Site Conditions: Definition, need for this clause in a construction contract.
  • History and purpose of the clause.
  • Examination of modern Differing Site Conditions clauses.
  • Understanding the terms "indications" and "material difference."
  • Overview of the impact of contract disclaimers related to differing site conditions.
  • Explore some of the conditions that are covered or not covered within the scope of the clause.
  • The six-part test for a successful differing site condition claim.
  • Five additional contractual requirements that contractors must comply in order to prevail.
  • Understand the contractor's duty to continue work.
  • Discussion on the "reverse differing site condition claim."
  • Lessons learned from Court and Board of Contract Appeal decisions that are changing traditional risk allocation commonly accepted under the Differing Site Conditions clause.
  • List of practical recommendations for both owners and contractors dealing with the risks of differing site conditions.

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)

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 Trends in Risk Allocation - Differing Site Conditions
    Presenter(s): James G. Zack Jr.

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