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Construction Site Data Disclaimers: Who Really Carries the Risk?

Understand the use and enforceability of such disclaimer clauses and the contract risk management techniques used to mitigate downside risk.

Differing site and concealed conditions are routinely encountered on public and private construction projects. Whether the construction project focuses on new construction or a renovation of an existing structure the risk of differing or concealed conditions is always significant. The owner desires certainty in bidding, desires to transfer the risk to the contractor yet seeks the lowest bid for the work. The contractor desires to submit a competitive price yet understand and cover the cost of the work it will ultimately perform. This material presents the owner and the contractor's perspectives on the risk of differing or concealed site conditions and the role disclaimers of liability for site data plays in managing the risk. Learn the use and enforceability of such disclaimer clauses and the contract risk management techniques owners and contractors use to mitigate downside risk.

Learning Objectives

  • You will be able to identify site data disclaimers including those that enforceable and those that may not be enforced.
  • You will be able to describe the process for perfecting and preserving a claim based on defective site data and the appropriate entitlement clause of contract.
  • You will be able to discuss the application of the change clause, the differing site conditions clause and the owner’s implied warranty of specifications as they interact with a claim for defective site data.
  • You will be able to review specific site data disclaimers and identify the proper course of action.

96 minutes
Course Exam
Certificate of Completion
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Over 35 years and 1.4 million customers worth of experience providing continuing education. Our passion is providing you world-class training to help you succeed in business and as a professional.

Agenda

Framing the Issues and Responsibilities Surrounding Site Data Disclaimers of Liability on Public and Private Contracts

  • The Owner's Implied Warranty of Specifications
  • Interplay Between the Differing Site Conditions Clause and the Owner's Implied Warranty
  • Site Investigation Clauses and the Contractor's Duty to Review and Seek Clarification

Reviewing Site Condition Information and How the Contractor Should Act

  • Representations as to Site Conditions Contained in the Contract Documents
  • Express Versus Implied Representations
  • The Contractor's Right to Rely on Site Data and Its Duty to Review Site Conditions
  • Will the Court or Board Enforce the Owner's Disclaimer of Liability for Site Data?

The Government's Duty to Disclose Superior Knowledge Regarding Site Conditions

  • The Scope of the Duty
  • Example Scenarios
  • Interplay With Private Construction Contracts

Contract and Risk Management Practices

  • Use of Pre-Bid RFI's Leading to Amendments or Addenda to the Solicitation
  • Mechanics of the Changes and Differing Site Conditions Clauses
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Over 35 years and 1.4 million customers worth of experience providing continuing education. Our passion is providing you world-class training to help you succeed in business and as a professional.

Credits

OnDemand Course

This course was last revised on August 26, 2019.

Call 1-866-352-9540 for further credit information.

No Credit Available

This program does NOT qualify, nor meet the National Standard for NASBA accreditation.

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Why Lorman?

Over 35 years and 1.4 million customers worth of experience providing continuing education. Our passion is providing you world-class training to help you succeed in business and as a professional.

Faculty

Michael E. Wagner, Jr.

Michael E. Wagner, Jr.

Seyfarth Shaw LLP

  • Attorney in the national Construction Practice Group of Seyfarth Shaw LLP
  • Practice includes the representation of owners, developers, design professionals, general contractors, and subcontractors in complex construction, design, and surety-related disputes on both public and private projects
  • Counsels clients on mechanic’s liens, payment and performance bond matters, delay and impact claims, design errors and omissions, subcontractor disputes, and construction defects
  • Previous general contractor where he was involved in preconstruction and project and risk management for multiple commercial and government construction projects
  • J.D. degree, cum laude, University of Baltimore School of Law; B.S. degree, magna cum laude, Mount St. Mary’s University
  • Can be contacted at 202-828-3592 or [email protected]
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Product ID: 405321
Published 2019
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