ConstructionPro Week, Volume: 1 - Issue: 30 - 11/28/2012

Performance Specifications: The Ultimate Owner Disclaimer?

By Bruce Jervis

 

Performance specifications have become increasingly common as a tool for defining the scope of work. Rather than specifying design features, the project owner – through its design professionals – states the functional characteristics the completed project must possess. It is up to the contractor to devise a solution.

 

A problem arises, however, because many design documents are actually hybrid. They contain both design and performance features. This can be confusing for contractors. It also provides project owners with an excellent defense to contractor claims.

 

On a recent federal project, the contractor was responsible for constructing end walls for existing, open-ended steel buildings. The contractor believed the drawings showed the end walls attached to, and therefore supported by, the existing steel structures. But the specifications stipulated wind loads and soil loads, also stating that the contractor was responsible for foundation and structural steel design.

 

The government directed the contractor to design and construct the end walls as freestanding structures supported on concrete footings. The contractor claimed the drawings had been defective and misleading. But the performance specifications prevailed.

 

Is the mixed use of performance and design requirements fair to contractors? Can’t a project owner insulate itself against flawed or incomplete design documents simply by throwing in some broad performance characteristics? If a contractor is truly expected to devise a design to achieve specified performance characteristics, shouldn’t the contractor be unfettered by design features imposed by the owner? I welcome your comments.

 

COMMENTS

The problem statement doesn't seem to lay out a clear abuse. A performance spec outlining the result desired would not typically require a contractor to design a component and provide the criteria for the design. It would describe a desired outcome and instruct the contractor to achieve it. It seems in this case the contractor did not read the specifications carefully prior to bidding.

Had this been a true performance specification, the contractor would have logically been able to argue that the desired outcome was achieved provided the construction the contractor chose complied with codes and industry standards. This situation is a hybrid d/b/b and d/b agreement it seems.
Posted by: Marshall Wilson - Friday, November 30, 2012 10:59 AM


We performed a project in the Pacific North West to extend an existing 35year old steel framed industrial warehouse building so as to enlarge its footprint and provide approximately 50% more roof area. The existing structures predated the region's earthquake design codes. The contract docs did not stipulate wind and soil loads. The owner refused to provide as-built data for the existing structures. We had to engage our own DOR who performed an analysis of the existing structures, determined prevailing soil and wind conditions and designed the building extention according to prevailing structural and building codes.

In some cases, it may be considered preferable to incorporate construction joints that allow new and existing structures to act independently in a seismic event.


Posted by: M. Duffy - Friday, November 30, 2012 11:11 AM


This situation serves to emphasize the need for contractors to carefully review the specifications and ask questions up front. Don't sign anything that you don't understand or that has abiguities in it. I remember one set of specs that, if it had been enforced as written, would have required destructive testing of every circuit breaker installed in a high rise. Luckily, the contractor questioned the requirement up front.
Posted by: Bob Baird - Friday, November 30, 2012 11:15 AM


As in many situations of mutual obligation, timely communication marks the trail to an implementation that satisfies everyone with a stake. Especially when the work involves existing facilities, pre-contract iterations of functionality/performance needs, feasible design approaches - and repeat - can be economical and effective in forming and keeping to the contract. The performance/functionality described should be useful, specific, and add understanding in ways that annotated drawings could not do effectively. There's nothing really new here. A stitch in time...

BTW, the Construction Specification Institute (http://www.csinet.org/) concerns itself with this sort of thing (along with much else) and might be worth a look.


Posted by: David Reynolds - Friday, November 30, 2012 11:23 AM


Design-Build intrinsically carries many risks not the least of which is the bad habit of too many Contractors failing to read the fine print themselves but of, sometimes intentionally, failing to pass the entire package along to invited sub-contractors. The resulting lower-than realistic bids for the work will please the Client - and many lawyers.
Posted by: Brendan Lynch - Friday, November 30, 2012 11:35 AM


Early in my career in the 70's, a wise old contractor of 75 years old stated "some of my best jobs were the ones I decided not to bid after assessing the bid docs". He also stated that more than 70% of his competitors from 20 years ago were no longer in business. Wonder why?
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