Plans and Specifications




Plans and specs are contract documents
Defects in construction can be caused by
design flaw (plans and specs were wrong)
Defects in construction can be caused by
faculty construction (practices were wrong)
Expert witnesses used in trials to determine
which it was (only time opinions are used)
Plans and Specifications




Contractor is legally responsible for defects
from faulty practice
Owner is legally responsible for design defects
other than malpractice (unless designer
certifies completeness)
Trend is to shift responsibility to contractors
(Design-Build delivery)
Responsibilities are detailed in contracts
Plans and Specifications



Traditional method- specifications describe
design, owner carries responsibility
Design-Build- specifications describe
performance, contractor carries responsibility
Can be combined form specifications with
responsibilities assigned as above
Plans and Specifications

Design Specifications
–
–
–
–
–
–
Contractor told what to do
No judgement by contractor
Traditional specifications
Performance is implied
Liability on owner unless designer warrants
completeness
Professional standard of care exempts designer
from minor mistakes and defects
Plans and Specifications





Designer and contractor are not “in privity of
contract”
Not liable to each other- have no duties toward
each other
Can’t sue each other
Can be different situation for torts
availability of material to meet schedule is
contractor responsibility
Plans and Specifications

Performance specifications
–
–
–
–
–
Describe final performance expected
Charge contractor with responsibility for design
Use design-build delivery system
Total liability on contractor
Designer not in contract with owner
Plans and Specifications

Combination specs
–
–
–
contain both design and performance clauses
Liability usually determined by arbitrator
Frequently relies on expert witness testimony
Plans and Specifications

Or Equal specifications
–
–
–
–
–
Design specification or equal
Approved substitutions
Contractor is liable if substitution is made
Gets complicated if original design language was
inadequate
Common in government contracting
Plans and Specifications

Legal requirements
–
–
–
–
–
Substantial completion (not strict)
Law controls completion, not contract language
Must prove causation to collect residual damages (high burden
of proof)
Contractor not liable for objectively impossible work specified
(use 3rd party standard)
Contractor not liable for practically impossible or commercially
senseless work specified (use 3rd party standard, must be
triggered by an altering event)
Plans and Specifications

Shop Drawings
–
–
–
–
Owner/designer approval does not relieve
contractor/supplier of responsibility
Contractor must warn owner if design defect is
open, obvious, and apparent
Waiver- knowingly relinquishing a right (proved by
evidence of conduct, not writing)
Acceptance- owner can accept work with knowledge
of obvious defect
Plans and Specifications

Onerous or exculpatory clauses- contract
language that nullifies a fundamental legal right
or violated public policy
Plans and Specifications


Scope of work should be clear in the plans and
specifications to aid contract interpretation and
reduce ambiguity
Interpretation of scope involves determination if
contract is ambiguous, then application of
various rules to determine scope interpretation
Plans and Specifications

Ambiguous contract
–
–
–
–
–
Two reasonable interpretations
Only examine documentary evidence
Must understand the claims for determination
Absurd interpretations disallowed
Onerous, exculpatory, and unconscionable
interpretations are disallowed
Plans and Specifications

Application of rules
–
–
–
Parol evidence- outside the contract (letters,
memos, phone logs, meeting minutes- must be in
writing)
Patent ambiguity- resolve in favor of drafting party
Custom and usage- must be introduced through
expert testimony
Plans and Specifications
–
–
–
–
Course of dealing- prior behaviors between the
parties
Ordinary meaning- special definitions of words not
allowed unless spelled out
Implied terms- some work is implied as necessary
for completion (used carefully)
Whole argument- must follow the spirit of the entire
agreement
Plans and Specifications
–
–
–
Clear expression of intent- drafter must make
intent obvious
Clerical error- clerical errors are ignored unless
materially relied upon by non-drafting party
Order of precedence- conflicting provisions are
common. Preference given to:




Special over general
Handwritten over typewritten
Typewritten over pre-printed
Words over figures