Construction Differing Site Conditions Claims

The Holloway Consulting Group, LLC is a Construction Consulting firm with offices in Colorado and Louisiana. One of our primary Construction Consulting practice areas is on matters involving the preparation, or rebuttal, of Construction Claims such as Differing Site Conditions.

Problems related to differing site conditions (DSC) have generated perhaps the most dramatic form of construction contract disputes. The recurrent problems described in various trade journals on heavy civil projects such as highways, bridges, dams and tunnels bear this out. Originally titled “changed conditions,” the term DSC is now widely used since its application has extended beyond just underground conditions.

Over the years, the extent to which a contractor could recover monetary compensation because of increased complexity of work due to unexpected subsurface conditions has slowly evolved. The landmark in this evolution was the use in federal contracts of standard Form 23A, which provides con­tractors with an equitable form of clause regarding recovery for DSC. At the other end of the spectrum, however, some private owners employ exculpatory language (denying any responsibility for subsurface conditions) in a contract absent a DSC clause.

CONTRACTOR RECOVERY

In Holloway’s experience, the prospects for a contractor to recover after encountering a DSC are dependent on:

• The extent to which the owner has made positive representations as to anticipated subsurface conditions.
• The extent to which conditions encountered differed materially from those represented.
• The extent to which the contractor could have anticipated the different conditions, by a site visit, previous experience on the geographic area, etc.
• To what extent did the owner have knowledge of the conditions encountered, and,
• The extent to which the contractor provided notice to the owner when the DSC was encountered.

CONTACT INFO

J. Steve Holloway, GC
The Holloway Consulting Group, LLC
10885 W. Beloit Pl.
Lakewood, CO 80227
Tel: (303) 984-1941
Email: hollowayconsultinggroup@gmail.com

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