Government Contracting Database
When providing specifications, the government has a duty to ensure that they are adequate for the task at hand and reasonably accurate. Appeal of Tidewater Contractors, Inc., AGBCA No. 90-195-1, 93-3 B.C.A. ¶ 26050 (citing Second Growth Forest Management, Inc., AGBCA No. 85-118-1, 85-3 BCA ¶ 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. Appeal of Richard P. Murray Co., Inc., AGBCA No. 77-152-4 B, 86-2 B.C.A. ¶ 18804; John Murphy Construction Company, AGBCA No. 418, 79-1 BCA ¶ 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 defective specifications, 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.
Design specifications set forth, in precise detail, the materials to be employed and the manner in which the work is to be performed; they permit no deviations. Performance specifications, on the other hand, state an objective, and the successful contractor is expected to exercise its ingenuity in selecting the means by which the objective is to be achieved. Travelers Cas. & Sur. of Am. v. United States, 74 Fed. Cl. 75, 94 (2006) (citing Norwood Mfg., Inc. v. United States, 21 Cl. Ct. 300 (1990). No warranty is implied by performance specifications.
Updated: July 19, 2018