Design specifications mandate the details of construction. The contractor is obligated to strictly conform to these directives. Consequently, the project owner extends an implied warranty to the contractor that a design specification is sufficient for the project and free from defects.
Performance specifications establish characteristics and capabilities required of the completed work. The contractor has the right and the obligation to devise the details that will meet these standards. At the same time, the owner’s implied warranty of the plans and specifications does not extend to performance specifications.
Challenges can arise because design documents are seldom labeled as design or performance. The U.S. Court of Appeals for the Federal Circuit was recently presented with a situation in which a set of contract drawings was labeled “conceptual” and “preliminary.” Yet a note on one of the drawings stipulated a precise thickness for a foundation slab. Did the government project owner warrant the sufficiency of that dimension?
The second case in this issue involves the right of a sole shareholder to represent a corporation in court. The non-attorney could represent a registered sole proprietorship but not the corporation, which was a distinct legal entity. The sole proprietorship, however, was not a party to the dispute.
