The Differing Site Conditions clause is one of the oldest clauses used in construction contracts, having been created by the U.S. The 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.

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.