The Holloway Consulting Group, LLC is a Construction Consulting firm with offices in Colorado and Louisiana. As illustrated at our page on CONTRACTOR CLAIM ENTITLEMENTS, one of our primary Construction Consulting practice areas is on matters involving the preparation of, or rebuttal of, Construction Claims.
This article continues our series on the Construction Consulting services we provide to our clients on Contractor Claims, in this case, Differing Site Conditions (DSC) claims:
DIFFERING SITE CONDITIONS
Of prime importance in the assessment of potential recovery is whether or not the contract contains any form of differing site condition clause. Federal Contracts, Standard Form 23A, expressly details the criteria for financial recovery by defining the parameters for a differing site claim:
Differing Site Conditions
(a) The Contractor shall promptly, and before such conditions are disturbed, notify the Contracting Officer in writing of;
(l) Subsurface or latent physical conditions at the site differing materially from those indicated in this contract, or
(2) Unknown physical conditions at the site of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inhering in work of the character provided for in this contract. The Contracting Officer shall promptly investigate the conditions, and if he finds that such conditions do materially so differ and cause an increase or decrease in the Contractor’s cost of or time required for, performance of any part of the work under this contract, whether or not changed as a result of such conditions, and equitable adjustment shall be made and the contract modified in writing accordingly.
(b) No claim of the Contractor under this clause shall be allowed unless the Contractor has been given notice required in (a) above; provided, however, the time prescribed therefore may be extended by the Government.
(c) No claim by the Contractor for an equitable adjustment hereunder shall be allowed if asserted under final payment after this contract.
This clause has evolved from many years of tests before the various Federal Boards of Contract Appeals.
The Holloway Consulting Group, LLC
Construction Consulting – Construction Claims Experts
12081 W. Alameda Pkwy., #450
Lakewood, CO 80228-2701
Denver Phone: (303) 984-1941
International : (888) 545-0666
Fax: (303) 716-0432