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Defective Design

When providing specifications, the Government has a duty to ensure that they are adequate for the task at hand and reasonably accurate. Second Growth Forest Management, Inc., AGBCA No. 85-118-1, 85-3 BCA p 18,224. According to the rule established by the United States Supreme Court in Spearin v. United States, 248 U.S. 132 (1918), there is an implied warranty that Government specifications are sufficient for a job, and if the specifications are followed, the result will be acceptable. This implied warranty only extends to those who have fulfilled the specifications, or have tried and have failed to do so because of defects in the specifications. There is a strong policy behind the warranty that would not be served by allowing the implied warranty to run to a contractor who has not done what he contracted to do and who fails to satisfactorily explain why not.

Defective specifications which cause the incurrence of extra costs entitle a contractor to an equitable adjustment on the basis of a constructive change. John Murphy Construction Company, AGBCA No. 418, 79-1 BCA p 13,836. The party asserting the benefit of an equitable adjustment on the basis of a constructive change has the burden of proof. It is not necessary for a contractor to prove the cause of the unsuccessful installation resulting from dfective specificaions, however. Once the contractor has demonstrated substantial compliance with the Government's plans and specifications, it is the Government who has the burden of laying some cause at the contractor's feet.