Differing Site Conditions – How Risk Is Changing

James G. Zack, Jr.

James G. Zack, Jr.

Jim is the Principal, James Zack Consulting, LLC and Senior Advisor, 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. Formerly he was the Executive Director of the Navigant...
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Pre-recorded
90 Mins
James G. Zack, Jr.

The Differing Site Conditions clause stands as one of the foundational elements within construction contracts, originating from its inception by the U.S. Federal government in 1926. Its primary aim has long been recognized as the transfer of latent site condition risks to the owner, incentivizing contractors to minimize their contingency costs during the bidding process. Implicit in this clause is the assurance that should a contractor encounter conditions materially different from those initially assessed, the owner will compensate for resultant costs and time adjustments.

For almost a century, this standard clause has permeated both public and private contracts, shaping industry practices and expectations. However, as Max E. Greenberg, a prominent figure in mid-20th-century construction law, once cautioned, assumptions about its operation may not always hold true. Indeed, the evolution of court decisions and rulings from Boards of Contract Appeals has gradually reshaped interpretations of risk allocation under this clause.

A succession of legal cases has notably heightened the risk borne by contractors concerning differing site conditions. This webinar, led by esteemed expert speaker James G. Zack, Jr., will delve into the shifting landscape of risk allocation within construction contracts. Through comprehensive analysis, attendees will gain insights into the evolving nuances of the Differing Site Conditions clause, enabling them to navigate its complexities with greater clarity and confidence.

Webinar Objectives

Webinar attendees will: 

  • Learn about the intent of 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 demonstrated to prevail on a differing site condition claim and what contractual requirements must be complied with in full.
  • Become familiar with several Court and Board of Contract Appeal decisions that are changing the “traditional” allocation of risk under the Differing Site Conditions clause.

Webinar Agenda

  • Introduction
  • Definition of Differing Site Condition (DSC)
  • Why owners need a DSC clause
  • History of the DSC clause
  • Modern DSC clauses
  • Conditions typically covered by DSC clauses
  • What are “indications”
  • What is a “material difference”
  • Impact of contract disclaimers
  • Conditions not covered by DSC clauses
  • Conditions sometimes covered by DSC clauses
  • Roadmap for successful DSC claims – 6 essentials
  • 5 additional contract requirements
  • Contractor’s duty to proceed with work
  • Reverse DSC claims
  • Caging risk allocation under DSC clauses
  • Practical recommendations for owners
  • Practical recommendations for contractors
  • Conclusion
  • Questions & discussion

Webinar 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.  
  • The webinar sets forth the history and purpose of the clause and examines the modern Differing Site Conditions clauses.
  • Discussion of the terms “indications” and “material difference” as well as an overview of the impact of contract disclaimers related to differing site conditions are covered.  
  • The webinar explores what conditions are generally not covered by the clause and conditions that are sometimes included within the scope of the clause.  
  • This webinar goes on to list the six-part test for a successful differing site condition claim and five additional contractual requirements contractors must comply with in order to prevail.  The contractor’s duty to continue work is also examined.  
  • A brief discussion of the “reverse differing site condition claim” – an owner claims that may be asserted against the contractor seeking recovery of funds from the contractor when they encounter conditions “materially better than anticipated”.  
  • An alternative use for the Differing Site Condition clause is also presented.
  • The webinar explores several 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.  
  • Finally, this webinar provides a list of practical recommendations for both owners and contractors dealing with the risks of differing site conditions.

Who Should Attend

  • Owners & Contractor Project Managers
  • Resident Engineers & Architects
  • Agency Construction Managers
  • Construction Managers@Risk
  • Design Managers
  • Legal Counsel representing project participants
Event Registration
$199.00
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$299.00
$349.00
$299.00
$199.00
$299.00
$199.00
$199.00
$299.00
$299.00
$199.00
$349.00
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