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Product ID: 408568EAU
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Differing Site Conditions

OnDemand Webinar (97 minutes)

Be sure to address differing site conditions in a construction contract and avoid higher prices and failed construction projects.Almost every construction and renovation project carries with it the risk of differing site conditions. Differing site conditions are one of the true unknowns. The discovery of differing site conditions can lead to costly overruns, delays, claims, and litigation or arbitration. Failing to address differing site conditions in a construction contract can lead to higher prices, increased estimating costs, insolvency, and failed construction projects. This topic will provide owners, developers, contractors, subcontractors, architects, engineers, public agencies, contracting officers, administrators, attorneys, and others who have an interest in construction contracting and claims with the knowledge necessary to navigate the risk of differing site conditions through their contracts and during the construction process. This material will also help such persons to identify different ways in which they can recover or defend against claims for differing site conditions. This information is critical to those who contract for, manage, supervise, or administer construction services that may be affected by unknown physical conditions.


Scott D. Cahalan, Smith, Gambrell & Russell, LLP



• What Is a Differing Site Condition?

• Historic Treatment of Differing Site Conditions

• Sanctity of Contract

Contract Provisions

• Type I Differing Site Condition Clause

• Type II Differing Site Condition Clause

• Other Types of Differing Site Conditions

- Hazardous Materials

- Archeological Artifacts

• Implied Contract Obligations

- Good Faith and Fair Dealing

- Information

- Implied Warranty of Adequacy of Design

- Inquiry

Limitations on Contract Provisions

• Inspection

• Notice

• Avoidance Clauses

Common Law Claims for Differing Site Conditions

• Concealment

• Misrepresentation

Equitable Defenses

• Mutual Mistake

• Impossibility

• Commercial Impracticability