Construction Projects Hidden Risks
The Risks Hidden in Construction Specification Formats
John Caravella
November 10, 2011
Construction projects come complete with specifications as sure as they do plans and change orders. For the contractor, however, depending on the form of the specifications used, unintended underlying risks may be hidden. The project specifications become part of the contract binding the contractor, and likewise, these risks can have legal ramifications.
For projects using Performance Specifications, obligations are placed upon the contractor to achieve the results specified. It is typical therefor for the contractor to be provided some level of flexibility with respect to materials and design as might be needed to achieve the required results.
“The contractor is expected to exercise his ingenuity in achieving the objective for the standard of performance.”
To ensure full legal enforcement, performance based specifications should reference the particular performance standard to be achieved by:
- Name of the Issuing Organization
- Number of the Standard
- Title of the Standard
- Date of Issue of the Standard
- Citation of any applicable requirements unless the entire standard is required
Where a project uses Design Specifications, the responsibility for performance of the project is placed with the design professionals, and the contractor is provided detailed information, by the design team, on the materials and methods to be used.
“Where the owner describes in detail the materials to be employed and the manner in which the work is to be performed, courts have determined that a warranty of adequacy arises. The contractor in that situation has no discretion to deviate from the specifications and is required to follow them as one would follow a road map.”
Often the specifications issued are not purely a performance based or a design based standard. Elements of both often exist within Hybrid Specifications. Keeping the intent of the owner in mind, the contract documents should be clearly drafted and coordinated to deliver to the owner the ability to have contractor responsible for the ultimate performance of the structure, or strict compliance to the materials and methods specified by the design professional.
The implications of specification format also affect the project owner. An owner may not realize that in proving the contractor with detailed specifications instructing the materials and methods to be used, that this releases the contractor from any responsibility should the project not achieve the owner’s desired results in performance. Some owners may be better served therefore in placing less emphasis over the materials and methods specified commonly in Design Specifications, and concentrate more on the end-goal of the desired performance the structure is to have.
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