Article Date: 10/10/2014

Courts, Board Decisions Narrowing Coverage of the Differing Site Conditions Clause

By Steve Rizer


Courts and board decisions are narrowing the coverage of the Differing Site Conditions (DSC) clause, Navigant Construction Forum (NCF) Executive Director James Zack reported both during a recent WPL Publishing webinar and in a new 32-page NCF research perspective. He noted that this trend is “making it much more difficult for contractors to recover damages.” And, it is a trend that NCF believes, “barring a watershed case concerning [DSC] claims,” likely will continue.


“Contractors are much more at risk” as a result of these decisions, “so you have to be more alert,” Zack told professionals attending the webinar. He recommended that contractors document that they have reviewed all available site information and have participated in pre-bid conferences. Furthermore, he suggested that they document their performance of prebid site visits. In addition, “document your interpretation of the available site information and then how you relied upon that during the bidding….”


Zack also implored contractors to provide “prompt, written notice when a DSC is discovered. You’ll have to demonstrate and strictly adhere to the requirements of the contract, and you’ve got to segregate time and cost impacts in the event that the owner ultimately agrees, or a trier of fact agrees, that it’s a materially different condition.”


Zack made the comments during the 90-minute webinar, “Changing Trend in Risk Allocation -- Differing Site Conditions," and in a report of the same name. Navigant Consulting Inc. Director Steven Collins joined Zack both as a co-presenter during the webinar and as a co-author of the report.


To purchase a recording of the webinar, visit


Editor’s Note: The subject of differing site conditions will be covered in WPL Publishing’s “The Essential Course on Successful Management of Claims & Change Orders,” a 16-part webinar series that will kick off next week. The course’s first session, “Identification and Notification of Claims: Overcoming the First Obstacles to Successful Recovery,” will begin next Wednesday (Oct. 15) at 1:00 p.m. (EDT). To register for the series, visit



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