In the construction industry, differing site conditions refer to unforeseen physical situations on a project site that substantially deviate from either the conditions specified in the contract documents or those that could have reasonably been identified before the contract’s commencement. These situations can encompass various scenarios, including previously unknown subsurface soil characteristics or the unexpected presence of hazardous materials. When faced with differing site conditions, contractors often encounter delays and additional costs, leading to claims for extra time and compensation.

In the legal framework, two primary categories of differing site conditions exist, known as Type I and Type II.

Type I Differing Site Conditions:

A Type 1 Differing Site Condition is a term used in the construction and contracting industry to describe an unforeseen and unexpected condition encountered during a construction project. These conditions are typically subsurface in nature and differ significantly from what was originally anticipated or indicated in the contract documents. Type 1 Differing Site Conditions are typically characterized by conditions that couldn’t have been reasonably foreseen during the planning and design stages of the project. 

Type II Differing Site Conditions:

A Type II Differing Site Condition is a term used in the construction and contracting industry to describe another category of unforeseen and unexpected conditions encountered during a construction project. Similar to Type I Differing Site Conditions, Type II conditions are not typically evident during the project’s planning and design stages. However, what sets Type II Differing Site Conditions apart is that they are characterized by conditions that, while unanticipated, could have been reasonably expected or foreseen based on available information. 

Factors for Successful Differing Site Conditions Claims:

• Contractual Provisions: Contract terms play a crucial role in determining the success of a differing site conditions claim. Some contracts may contain specific provisions that exclude certain conditions from being considered differing site conditions or include disclaimers regarding the contractor’s reliance on certain contract provisions. It is advisable for contractors to proactively seek to remove excessively restrictive language and disclaimers from the differing site conditions clauses in their contracts during the pre-project phase, whenever feasible.
• Notice: Providing timely notice to the owner about the differing site condition is essential for a successful claim. Most contracts require the contractor to give written notice within a specific time frame after discovering the condition and before disturbing it, or else the claim may be waived. Failure to comply promptly can lead to the loss of claim eligibility.
• Comprehensive Documentation: Contractors must diligently document the differing site condition, its impact on their work, additional costs, and schedule delays. This documentation should include photographs, videos, and any other relevant evidence to demonstrate that the condition materially differs from what was indicated in the contract or reasonably expected.
• Establishing Causation: For a differing site conditions claim to be successful, the contractor must not only substantiate and thoroughly document the existence of the differing site condition but must also provide compelling evidence that this condition is the primary factor leading to increased costs and project delays. 

Encountering differing site conditions in construction projects can significantly affect a contractor’s timeline and costs. Contractors who promptly recognize such conditions, provide contractual notice within the required time frame, and understand the essential documentation and causation elements of a claim have a better chance of successfully obtaining relief in differing site conditions claims.

For legal counsel and expert guidance on navigating site conditions claims in the construction industry, consult an experienced construction law attorney at Haber Law who can provide you with valuable insights and support throughout the process.