{"id":902506,"date":"2024-04-02T15:45:51","date_gmt":"2024-04-02T21:45:51","guid":{"rendered":"https:\/\/www.myconstructionexpert.com\/blog\/?p=902506"},"modified":"2024-04-02T15:46:00","modified_gmt":"2024-04-02T21:46:00","slug":"performance-specifications-tips-for-drafting","status":"publish","type":"post","link":"https:\/\/www.myconstructionexpert.com\/blog\/performance-specifications-tips-for-drafting\/","title":{"rendered":"Tips for Drafting\u00a0Performance\u00a0Specifications"},"content":{"rendered":"\n

William J. Tinsley, Jr. | Phelps Dunbar<\/a><\/p>\n\n\n\n

An owner\u2019s traditional design (or prescriptive) specifications give the contractor specific, step-by-step details for construction. If the contractor builds a project according to design specifications, it has no liability for the design.<\/p>\n\n\n\n

In contrast, true performance specifications<\/a> focus upon the owner\u2019s requirements for the finished project. Performance specifications afford significant discretion to the design builder for the design as long as the finished project meets the owner\u2019s requirements.\u00a0 It is this discretion that shifts the responsibility for design to the builder, who by operation becomes a design builder.<\/p>\n\n\n\n

In practice, the distinction between design and performance specifications sometimes becomes muddled. The purpose of this article is to provide some guidance for drafting and recognizing performance specifications that will shift the risk for design to the design builder.         <\/p>\n\n\n\n

One source of confusion is because most projects are constructed using design and performance specifications. Even in traditional, \u201cdesign-bid-build\u201d contracts, some design features (or \u201cancillary\u201d design features) are left to the discretion of the general contractor or specialty subcontractors; and are finalized through submittals to the owner\u2019s design professionals. Those providing such submittals should be aware the responsibility for such design elements will likely remain with the party that provided the submittal, regardless of the owner\u2019s design professional\u2019s limited \u201cacceptance\u201d or \u201capproval\u201d of the submittal.<\/p>\n\n\n\n

Likewise, contract documents for design-build projects typically include design specifications for some portion of the project. But simply labeling a design specification as a \u201cperformance requirement\u201d will not shift design liability to the design builder. Courts uniformly hold whether a specification is \u201cdesign\u201d or \u201cperformance\u201d depends upon the amount of discretion for design left to the contractor.<\/p>\n\n\n\n

Wherever performance specifications are intended, the contract documents should expressly state that the owner\u2019s requirements are to be interpreted to permit the design builder significant latitude for design. Here is an example:<\/p>\n\n\n\n

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The specifications set forth herein are to be interpreted as \u201cPerformance Specifications\u201d and are intended solely for the purpose of describing the criteria by which the work to be completed by the design builder shall necessarily comply. Unless otherwise specifically set forth herein, the design, methods and means of construction, materials utilized, equipment installed and any and all other aspects of the work are at the sole discretion and the sole responsibility of the design builder.<\/p>\n<\/blockquote>\n\n\n\n

The goal for drafting performance specifications is to define the end product to be constructed and avoid unnecessary limitations as to how to design or perform the work. <\/p>\n\n\n\n

Consider using these phrases to reinforce this intent:<\/p>\n\n\n\n