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Construction Claims Monthly - Devoted exclusively to the problems of construction contracting since 1963

Changing Trend in Risk Allocation - Differing Site Conditions (CCL150B)

  • Product Format
    Pre Recorded Webinar
  • Presenter(s)
    James G. Zack Jr. CCM, CFCC, FAACE, FRICS, PMP
  • Conference Date
    Thu, December 21, 2017
  • Length
    60 minutes

Do You Really Know How the Differing Site Conditions Clause Means and How it Works? You Should Attend This Webinar Before Answering That Question!

The Differing Site Conditions clause is one of the oldest clauses used in construction contracts, having been created by the U.S. Federal government in 1926. It is generally accepted that the object of the clause is to transfer the risk of latent site conditions to the owner, and thus enticing contractors to lessen the cost of their contingency during bidding time. The clause promises that if the contractor encounters a 'materially different' condition during the work execution, the owner would have to compensate the contractor for the resulting cost and/or time.

For nearly 90 years this standard clause has been used widely in both public as well as private contracts. 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 isn't necessarily so!' The Courts and Boards of Contract Appeals, over the years, 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.

This webinar by expert speaker James G. Zack, Jr. will give you a clear and accurate picture of the evolving Differing Site Conditions clause and how it really operates. Know what conditions are and are not covered by the Differing Site Conditions clause; what must be proven to prevail on a Differing Site Condition claim; and what contractual requirements must be complied with in full. This webinar will also help you become familiar with a number of Court and Board of Contract Appeals' decisions which are changing the 'traditional' risk allocation under the Differing Site Conditions clause.

You will gain a solid understanding on the Differing Site Conditions clause. You will understand how the typical essence of this 90-year-old clause is being eroded by Court and Board decisions.

Session Highlights:

  • Definition of a differing site condition and why there is a need for a Differing Site Conditions clause in a construction contract.
  • The history and purpose of the clause and examining the modern Differing Site Conditions clauses.
  • Understand 'indications' and 'material difference' as well as get an overview of the impact of contract disclaimers related to differing site conditions.
  • Conditions that are generally not covered by the clause and conditions that are sometimes included within the scope of the clause.
  • Listing the six part test for a successful differing site condition claim and five additional contractual requirements contractors must comply with in order to prevail. Also, examining a contractor's duty to continue work.
  • 'Reverse differing site condition claim' – an owner claim that may be asserted against the contractor seeking recovery of funds from the contractor when they encounter conditions 'materially better than anticipated'.
  • Court and Board of Contract Appeal decisions which appear to be slowly eroding the traditional risk allocation commonly accepted under the Differing Site Conditions clause, along with lessons learned from each case.
  • A research perspective that provides a 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.

 

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About the Presenter(s)

 

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 ...More Info

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