J. Norman Stark | July 3, 2017
Construction contract specifications are not all the same. These individual written forms of construction documents describe materials, methods, quality and methods of incorporating them in the total improvement project. Every set of specifications prepared by the architect or engineer, have separate, distinct functions. More importantly, design specifications have legally distinct implications from performance specifications.
How Construction Law Compares Construction Contract Specification Terms
The construction project’s design specifications describe materials and methods to be employed, as a formal guide to be followed, without deviation. Performance specifications describe the end result as a general, objective standard; the manner in which the construction work is to be performed is left to the contractor to perform and complete the work.
Each of these standards are legal terms, based upon the landmark decision and principle which set the standard for the implied warranty of specifications, also known as the “Spearin Doctrine”. The U.S. Supreme Court, in its decision, held: “Where one agrees to do for a fixed sum, a thing possible to be performed, he will not be excused or become entitled to additional compensation because unforeseen difficulties are encountered…But if the contractor is bound to build according to plans and specifications prepared by the owner, the contractor will not be responsible for the consequences of defects in the plans and specifications.”United States v. Spearin, 248 U.S. 132 (1918). This principle has been followed since its announcement, by the courts in almost every state of the United States and U.S. territories.
Simply stated, the owner impliedly warrants that if the contractor performs the work in accordance with the owner’s construction plans and specifications, resulting in a failure or deficiency, the owner and not the contractor, is responsible. Therefore, in all construction claims it is particularly important to distinguish, whether the fault is legally attributable to a design or performance specification, and as an exception to the general legal rule, where the construction contractor participates in the design or controls the methods of performance. A construction claim’s resolution will rely upon the determination of whether the specification was a design or performance issue. Where there is a difference, there is also a legal distinction.