For those involved in construction, site conditions-both above ground and subsurface - can be the ultimate risk. For what you think will be the conditions when the digging begins and what’s actually found can be poles apart - the distance between them being measured in lost time, higher costs, and damages.

Developed by Federal Publications and intended for all those exposed to the problems created by differing site conditions - contractors, owners and their representatives - the program is a concentrated blending of the technical, the legal, and the practical. It deals with such topics as: (a) Recognizing and evaluating potential site problems; (b) Allocating the risks involved; (c) Anticipating potential environmental problems; (d) Each side’s rights and options; (e) Applicable contract clauses; (f) Preparing, presenting and defending against claims.

The Course Curriculum

1. The Best Money You Can Spend: Site Investigation
   1. The Risks Of Differing Site Conditions
      1. Revised design
      2. Delayed construction
      3. Additional construction costs
   2. Managing Those Risks-A Simple Formula
   3. Investigate Now-Save Later
   
   Planning & Designing The Project
   

2. Recognizing Site Conditions & The Potential For Differing Conditions
   1. Common Potential Problems
   2. Potential Problems Due To Geologic Area
   3. Specific Potential Problems Due To Planned Development
3. Minimizing The Uncertainties
   1. Learning The Site
      1. What you already know
      2. What you need to know
      3. Determining subsurface exploration methods
      4. Budgeting for the process
      5. Responsibility for the process
   2. Designing For Your Site
      1. Location of physical plant
      2. Site investigation for conceptual planning
4. Quantifying The Uncertainties
   1. Quantifying Differing Risks To The Participants
      1. Cost & time for owner
      2. Architectural & structural needs for designers
      3. Constructability for the builder
   2. Selecting A Design
   3. Describing The Uncertainties
      1. Simple & Direct
      2. Avoiding disclaimers
      3. Contract documents
      4. Drawings & specifications
      5. Geotechnical reports
      6. Information not disclosed
5. Allocating The Risk
   1. Differing Site Conditions Clauses
      1. Type I clause
      2. Type II clause
      3. Differences between standards form clauses
   2. Shifting The Risk To The Contractor
   3. Unit Pricing
6. Anticipating The Environmental Issues
   1. Environmental Audits
      1. Phase I
      2. Phase II
   2. Incorporating Environmental Concerns Into A Master Building Plan
   3. Environmental Risk Apportionment In The Contract
   4. Indemnification For Environmental Risks
      1. Owner
      2. Designer
      3. Contractor
   
   Building The Project
   

7. Bidding Site Investigations
   1. Contractual Clauses
   2. Reasonable Site Investigation
   3. Opportunities For Testing
   4. When A Site Investigation Is Prevented
8. The Contractor’s Position: Recognizing Problems
   1. Early Recognition
   2. Notice
   3. Evaluating The Problem
      1. Geological
      2. Contractual/legal rights
      3. Financial
9. The Owner’s Position: Encountering Problems
   1. Response To The Notice
      1. Geological response
      2. Independent consulting
      3. Contractual/legal rights
   2. Considering Changes To The Construction Plan
      1. Change design
      2. Change payment terms
      3. No change
   3. Monitoring Contractor’s Claim Work
   4. Are Site Conditions Better Than Anticipated?
10. The Designer’s Position
    1. Re-evaluating The Bid Documents
    2. Examining The Actual Conditions
    3. Helping Owner Consider Alternatives
    4. Errors & Omissions Insurance
11. Site Conditions Above The Surface
    1. Renovations & Rehabilitation
    2. Special Investigation Problems
    3. Notice & Record Keeping
    
    Differing Site Conditions Claims
    

12. Legal Standards For Determining Claim Rights
    1. The Contractor’s Position
       1. Record keeping for the claim
       2. Legal basis of the claim
       3. Geological basis of the claim
       4. Costing the claim
    2. The Owner’s Position
       1. Owner’s record keeping
       2. Preparing the defense
       3. Damages
13. Barriers To Recovery
    1. Site investigation
    2. Exculpatory Clauses
    3. Lack Of Notice
    4. Disclaimers
    5. Releases
14. Preparing The Claim
    1. The Facts
    2. The Site-Anticipated vs. Noted
    3. The Law
    4. The Cost
15. Partnering & ADR
    1. Avoiding The Adversarial Relationships
    2. Mediating The Dispute
    3. Disputes Review Board
16. Claims Resolution
    1. Avoiding Litigation
    2. Arbitration
    3. Mediation
    4. Independent Expert Findings & Disputes Review Boards

The Course Faculty

Adrian L. Bastianelli, III is a principal in the Washington, DC law firm of Bastianelli, Brown & Kelley, Chartered. Mr. Bastianelli received a Bachelor of Science Degree in Civil Engineering from Purdue University. He is a registered professional engineer in the State of Kentucky. He received his law degree from the University of Louisville. Mr. Bastianelli has been involved in several precedent setting case decisions as a practicing lawyer.
Mr. Bastianelli is active in the ADR area. He has served as an arbitrator or a mediator on over 50 construction cases. He has been the Chairperson of five DRBs in Boston and is a member of a DRB in Dallas.
Mr. Bastianelli is the editor of The Construction Lawyer. He is a contributing author to Construction Claims Deskbook, Wiley Law Publications. He is on the Construction Group Advisory Board for Federal Publications. He has lectured frequently on construction and government contract topics for Federal Publications, ENR, AGC, ABC MCA, Maryland Highway Contractors Association and others.
Mr. Bastianelli is a member of the District of Columbia Bar, the American and Federal Bar Associations, and National Society of Professional Engineers. He is a past president of the Washington Building Congress. He is a Fellow of the American College of Construction Lawyers.

Donald A. Tobin is a principal with the Washington, DC law firm of Bastianelli, Brown & Kelley, Chartered. Mr. Tobin is a graduate of Holy Cross College, Worcester, MA, and a cum laude graduate of Boston College Law School.
Mr. Tobin was an attorney with the Office of Counsel, Naval Air Systems Command, Department of the Navy in Washington, DC from 1973 through 1976. During that time he specialized in government contracts. His legal experience in private practice has been in litigation and general counseling in matters pertaining to both government and construction contracting. He has been involved in litigation in various federal courts, state courts, and other administrative agencies (Corps of Engineers Board of Contract Appeals, Armed Services Board of Contract Appeals, the Maryland State Board of Contract Appeals and the District of Columbia Board of Contract Appeals). Mr Tobin has successfully handled complicated arbitration cases before the American Arbitration Association. He has also practiced extensively before the General Accounting Office in the bid protest area, and handled defective pricing cases.

Philip R. Croessmann is a member in the Washington, DC law firm of Bastianelli, Brown & Kelley, Chartered. Mr. Croessmann received his Bachelor's of Architecture from the University of Oregon School of Architecture and Allied Arts and received his Juris Doctorate degree from the University of Syracuse College of Law. He is a licensed architect and a member of the Bar in Virginia, the District of Columbia, New York and Washington State.
Mr. Croessmann has represented numerous architectural and engineering firms, environmental consultants and contractors in both simple and complex litigation. He is also involved in providing a wide range of services that are tailored to the construction industry. The services include contract negotiation, business planning, risk management, ownership transition, mergers and acquisitions, collections and mechanic liens. In addition, Mr. Croessmann had been heavily involved in litigating insurance coverage disputes involving Superfund, environmental claims and construction defects. Mr. Croessmann also served as a lobbyist and deputy general counsel for the American Institute of Architects in Washington, DC. Mr. Croessmann has written numerous articles and co-authored books for the construction industry.
Mr. Croessmann is also active in industry associations. He is both a member and on the Board of Directors of the Northern Virginia Chapter of the AIA and is active in the Associated Builders and Contractors of Virginia. He has also served as an arbitrator for the American Arbitration Association and is actively involved in alternative dispute resolution.