Changing Trend in Risk Allocation -- Differing Site Conditions

Presented by:

Steven Collins, Navigant Consulting & James Zack, Navigant Construction Forum

The differing site conditions clause is one of the oldest clauses used in construction contracts, having been created by the federal government in 1926. The object of the differing site conditions clause is to transfer the risk of latent site conditions to the owner, thus enticing contractors to reduce contingency 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. For nearly 90 years, this standard clause has been used widely in both public and 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 Greenberg, “It ain’t necessarily so.” Over the past few years, the courts and boards of contract appeals have been slowly changing the interpretation of the clause’s risk allocation. A series of court and board cases have increased the contractor’s risk concerning differing site conditions. These decisions are the focus of this webinar.

Watch this information-packed webinar to:

• Learn about the history and purpose of the differing site condition clause.
• Gain knowledge of the three (not two) types of differing site conditions.
• Understand what are “indications” and what is a “material difference” and how these terms impact a contractor’s right of recovery.
• Learn the six indispensable elements to recovering on a differing site condition claim.
• Become familiar with seven other administrative requirements for successful recovery.
• Understand the “reverse differing site condition” claim, where the owner may seek. recovery from the contractor.
• Explore court and board decisions.

Who Will Benefit?

This webinar is a must if you’re a public or private owner, construction manager, contractor, subcontractor or design professional making or reviewing a differing site condition claim. Register now to gain key insights from our knowledgeable expert on this important topic.

Meet Your Expert Instructors:

Steven A. Collins is a director in Navigant Consulting's Boston office. He possesses more than 25 years of combined experience in dispute resolution, construction, and engineering providing services to owners, contractors, architects, engineers, state and municipal governments, and commercial and industrial corporations. His work includes domestic projects as well as projects in Afghanistan, Iraq, Egypt, the United Arab Emirates, and Egypt. He acquired project-management skills by directly managing large complex construction projects. His consulting experience includes provision of expert testimony in bench and jury trial arbitrations, mediations, and alternative-dispute-resolution forums on schedule delay and cost impact matters, among others.

James G. Zack, Jr. is executive director of Navigant Construction Forum, the construction industry’s global resource for thought leadership and best practices on avoidance and resolution of construction project disputes globally. He once served as executive director of Corporate Claims Management for Fluor Corp., vice president of PinnacleOne, and senior construction claims consultant for CH2M HILL Inc. With more than 40 years of experience, he is a recognized expert in mitigation, analysis, and resolution or defense of construction claims. A fellow of AACE and RICS, he is a certified forensic claims consultant, a certified construction manager, and a project management professional, as well as a nationally known author and speaker on construction claims.