Claims for Unforeseen Conditions Even With a Design-Build Contract Claims for unforeseen or differing site conditions are more common in the deep foundation industry than perhaps any other component of the construction world. These claims are based on the decision by the U.S. Supreme Court in 1918 in the case of U.S. v. Spearin, 248 U.S. 132 (1918), the most important construction law case ever in the U.S. The Court held that if a contractor performs in accordance with the plans and specifications issue on a construction project and there are defects in the results of the construction, the contractor is not responsible for the deficiencies but is entitled to receive additional compensation and an extension of time. Project owners have spent the last 105 years trying to evade the increased exposure provided by the decision in Spearin. Examples of owners' aforementioned A regular column from the DFI Risk and Contracts Committee By Richard D. Kalson, Esq., partner with Benesch Law and chair of DFI's GeoIndustry Risk Working Group efforts to evade the clear meaning of Spearin include various exculpatory or " weasel " clauses contained in prime contracts that are passed down to subcontractors through contractual flow-down clauses such as site inspection requirements and exclusions of provided geotechnical reports from the contract documents. One recent effort by project owners to avoid liability under Spearin is to select a design-build delivery system instead of a design-bid-build process. Under a design-build contract, the Spearin doctrine only protects a contractor under limited purposes as the design-build team warrants the accuracy of its design as it creates the plans and specifications. However, a contractor may still make a claim for a differing site condition if the owner provides some design or program information. DEEP FOUNDATIONS * SEPT/OCT 2023 * 125 RISK CORNERhttp://starironworks.com/