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 the 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 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 E. Greenberg, “It ain’t necessarily so!” Over the years, the Courts and Boards of Contract Appeals 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 will explore the changes in risk allocation.
Jim is the 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. Jim was eh founder and Executive Director of the Navigant Construction Forum™. Formerly he was 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 47 years, worked on both private and public projects throughout the U.S. and in 28 countries abroad. Mr. Zack is a Fellow of AACE International, the Royal Institution of Chartered Surveyors, and the Guild of Project Controls. 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) and a Project Management Professional (PMP). Mr. Zack is an internationally recognized author and speaker in the construction claims and disputes arena.