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Defective Specifications

Defective specifications are specifications which, if followed by the contractor as designed by the owner, will not result in a usable product. Centre Manufacturing Company, Inc. v. United States, 183 Ct. Cl. 115 (1968).

(Also See Interpretation of Specifications).

Whenever the government uses specifications in a contract, there is an accompanying implied warranty that these specifications are free from errors. See United States v. Spearin, 248 U.S. 132, 137 (1918) (permitting a contractor to rely on an implied warranty by the government). The test for recovery based on inaccurate specifications is whether the contractor was misled by these errors in the specifications. Beginning at least with the Supreme Court's decision in Spearin, the cases have made clear that there can be no recovery unless the contractor has been "misled." See, e.g., Spearin, 248 U.S. at 136 ("[T]he contractor should be relieved, if he was misled by erroneous statements in the specifications."); Ragonese v. United States, 120 F. Supp. 768, 771 (Ct. Cl. 1954) (Contract did not mention that contractor was likely to encounter large quantities of subsurface water, thereby misleading the contractor; contractor entitled to an equitable adjustment.). Where the contractor is not misled, it cannot claim an equitable adjustment. For example, in Wickham Contracting Co., Inc. v. United States, 546 F.2d 395, 400 (Ct. Cl. 1976), the contractor based its bid on an erroneous scale in a contract drawing. When the government asked for verification of plaintiff's bid, plaintiff became aware of the error in scale. "Since plaintiff was aware of the drawing error at the time it entered into the contract, refusing an opportunity to withdraw its bid based on the drawing error, it is not entitled to recover additional costs by way of a contract price adjustment based on said error." Id. at 401.

The decision in Helene Curtis Industries, Inc. v. United States, 312 F.2d 774 (Ct. Cl. 1963), is an example of a case on point. In Helene Curtis, the Army invited bids on a contract to supply chlormelamine, a disinfectant. Id. at 776. The plaintiff bid on supplying this disinfectant without taking into account the need to grind up the chlormelamine particles during the manufacturing process. As a result of this omission, plaintiff began to experience costly manufacturing difficulties based on the lack of grinding. Id. The court held that the contractor could recover for the grinding problems associated with the first contract because it was misled by the specifications. However, the contractor could not recover on the second contract because "it made the extension agreement with its eyes open and therefore when the contract award was subsequently made . . . it could no longer assert that it was relying on a misrepresentation." Id. at 779. See also R.E.D.M. Corp. v. United States, 428 F.2d 1304, 1310 (Ct. Cl. 1970) (allowing an equitable adjustment for the first army contract containing erroneous specifications, but denying the requested adjustment for the "follow-on" contract because the contractor was no longer misled by the specifications); Firestone Tire & Rubber Co. v. United States, 558 F.2d 577, 590 (Ct. Cl. 1977) (denying recovery for "additional costs attributable to drilling difficulties because at the time that [the contractor] entered into its prime contract it was fully aware of those then unresolved problems . . . .").