Differing Site Conditions – Who Really Owns The Risk?
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 Construction Forum™ and earlier, the Executive Director, Corporate Claims Management Group, Fluor Corporation, one of the world’s largest EPCM contractors. Mr. Zack was previously Vice President of PinnacleOne and the Executive Director of the PinnacleOne Institute and a Senior Construction Claims Consultant for CH2M HILL, Inc. Mr. Zack has, for more than 51 years, worked on both private and public projects throughout the U.S. and in 39 countries abroad. Mr. Zack is a Fellow of AACE, the Royal Institution of Chartered Surveyors, the Guild of Project Controls and the Society of Construction Claims Specialists International. In the construction claims field, he is a recognized and published expert in mitigation, analysis and resolution or defense of construction claims and disputes. Mr. Zack is a Certified Construction Manager (CCM), a Certified Forensic Claims Consultant (CFCC), an Expert Certified Construction Claims Specialist (ECCCS), an Expert Certified Construction Delay Analyst (ECCDA) and a Project Management Professional (PMP).
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, thus enticing contractors to reduce their contingency cost 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 more than 95 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 E. Greenberg, “It ain’t necessarily so!” 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 webinar will explore the changes in risk allocation.
Areas Covered
- 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
Who Should Attend
- Owner and Contractor Project Managers
- Resident Engineers or Architects
- Agency Construction Managers
- Construction Managers at Risk
- Design Managers
- Legal Counsel representing owners or contractors
Why Should You Attend
- 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
Topic Background
Differing Site Conditions or materially different latent site conditions are often encountered on projects during construction. Whether natural or man made, unforeseen conditions can wreak havoc on project cost and schedule. Standard contracts typically have a Differing Site Conditions clause intended to provide compensation to the contractor if such conditions are encountered. And yet, as old as this clause is, all too often there are disputes concerning whether the condition is materially different; whether contract disclaimers are enforceable; and whether the owner really owes time and money to the contractor. These disagreements most often arise due to a lack of understanding of how the Differing Site Conditions clause is supposed to work. This webinar hopes to fill this knowledge gap concerning this type of claim for both owners and contractors.
-
$200.00
-
