Government Contracting Database
Design Versus Performance Specifications
Specifications are normally of a design or performance variety. Design specifications state explicitly how a contract is to be performed and permit no deviation. Rick’s Mushroom Serv., Inc. v. United States, 76 Fed. Cl. 250, 259 (2007), aff’d, 521 F.3d 1338 (Fed. Cir. 2008) (quoting Stuyvesant Dredging Co. v. United States, 834 F.2d 1576, 1582 (Fed. Cir. 1987)). Design specifications come with an implied warranty that if they are followed, the contractor can produce an acceptable result. Id. (citing United States v. Spearin, 248 U.S. 132 (1918). Performance specifications, conversely, specify the results to be obtained, and leave to the contractor the responsibility of determining how to achieve those results. They contain no warranty. Id. (citing Stuyvesant Dredging Co. v. United States, 834 F.2d 1576, 1582 (Fed. Cir. 1987)).
The court of appeals “has held that a Spearin-type warranty is implied only in design specifications, not in performance specifications.” Lopez v. A.C. & S., Inc., 858 F.2d 712, 716 (Fed.Cir.1988). When the government provides “design” specifications, it is long established that the government warrants the design it furnishes to a contractor, and must respond in damages when that design is not workable. United States v. Spearin, supra. However, where the specifications are “performance” in nature, there is no government liability, absent a finding that the government’s performance standards against which the appellant’s design is measured were impossible or commercially impracticable to meet. Intercontinental Manufacturing Co., Inc. v. United States, 4 Cl. Ct. 591 (1984), affirming Intercontinental Manufacturing Company, ASBCA No. 20880, 80-2 BCA ¶ 14,632.
Whether a particular specification is of a ‘design’ or ‘performance’ nature must necessarily depend upon the facts of each case. It is not unusual for an element of work to contain both design and performance features. When reviewing a particular situation, the questions that need to be addressed are: Did the government provide the form and dimensions of the work and show how the work was to be built and installed, leaving the contractor with little discretion in performance?; Or, did the contract provide that the details of the installation were to be left largely to the experience and expertise of the contractor and its agents, in accordance with the contractually required shop drawings and overall performance standards? If the former, it is most likely to be considered a design specification; if the latter, it is most likely to be considered a performance specification. Compare Morrison-Knudsen Company, ASBCA Nos. 32476, 32657, 90-3 BCA ¶ 23,208 with Roy McGinnis & Co., Inc., ASBCA No. 38536, 85-3 BCA ¶ 18,259.
Once the specifications are characterized as design specifications, then the contractor “must show by a preponderance of the evidence that [the alleged design defect] was the most probable cause [for deficient performance] when considered with reference to other possible causes.” Brantley Construction Co., Inc., ASBCA No. 27604, 84-3 BCA ¶ 17,532 at 87,317, (citing Ordnance Research, Inc. v. United States, 609 F.2d 462, 479-80 (Ct.Cl.1979) (causation proven where “an alteration in the specifications solve[d] the difficulty” in the production process)); R.E.D.M. Corp. v. United States, 428 F.2d 1304, 1308 (Ct.Cl.1970) (causation proven where alteration in specifications solved production difficulties despite contractor’s inability to pinpoint defect); see also Celesco Industries, Inc., ASBCA No. 21928, 81-2 BCA ¶ 15,260 at 75,548-49 (contractor has burden to show “causal connection between the defective … specification and [performance] failures”); Delco Electronics Div., General Motors Corp., ASBCA No. 15979, 74-2 BCA ¶ 10,892 at 51,832 (contractor entitled to recover where performance according to government-furnished specifications yielded unsatisfactory results, although contractor had not ascertained the cause of its failure).
In Leslie-Elliott Constructors, Inc., ASBCA No. 20507, 77-1 BCA ¶ 12,354 at 59,790, the Board determined that piping drawings represented a design requirement because they were “definitive with respect to the number and locations of the mains, branch lines and sprinklers, as well as the lengths of the piping, sleeve diameters, etc., leaving only the pipe diameters to be ascertained by calculations.” By contrast, in cases where the Board concluded that specifications or drawings were not of the design type, far more discretion was afforded the contractor. Roy McGinnis and Co., Inc., ASBCA No. 28536, 85-3 BCA ¶ 18,259 at 91,674, 91,676 (piping drawings held not to be design type where certain “offsets, fittings and accessories” were omitted and left to contractor for resolution); Algernon Blair, ASBCA No. 26761, 82-2 BCA p 16,029 (arrangement of piping details committed to contractor’s discretion); Stolte-Santa Fe-Bing, ASBCA No. 12156, 69-1 BCA ¶ 7500.
Updated: June 21, 2018