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Conflict Between Design and Performance Specifications
By Thomas E. Abernathy, IV


In any project, the plans and specifications are intended to direct the contractor in building the structure to meet the owner's needs and requirements. The specifications describe these requirements using a design specification or a performance specification, and sometimes both. Unfortunately, there are times when a project incorporates both design and performance specifications which create conflict in meeting the owner's goals.

Design specifications set forth precise measurements, tolerances, materials and other specific information, and under this type specification, the owner is responsible for design and related omissions, errors, and deficiencies in the specifications and drawings. By contrast, performance specifications set forth the operational characteristics desired by the owner, and the design, measurements, and other specific details are not stated nor considered important so long as the performance requirement is met. Where an item is purchased under a performance specification, the contractor accepts general responsibility for design, engineering, and achievement of the stated performance requirements.

J. E. Dunn Construction Co. v. General Services Administration

In the case of J. E. Dunn Construction Co. v. General Services Administration (GSBCA No. 14477, 00-1 BCA 30,806), the project in question was the Charles E. Whittaker Federal Courthouse in Kansas City, Missouri. The drawings for the north elevation of the building showed a circular plaza with six columns that were approximately four-stories tall. On top of these columns was a semicircular glass curtain wall that extended to the seventh floor, and above the seventh floor another semicircular glass curtain wall rose to the penthouse of the building. Precast columns continued the semicircular shape of the structure from the ground level to the penthouse behind the curtain wall assembly, and the columns framed the north elevation plaza and the lower and upper north curtain wall assemblies.

The curtain wall subcontractor estimated material and engineering costs on the assumption the drawings contained design requirements, and that any building movement had been factored into the design. However, when the curtain wall shop drawings were submitted, the architectural cladding consultant reported the north curtain wall would not accommodate the contract's deflection criteria. It did not provide for the specified vertical movement, and the approved correction involved changes in glass size, anchor design, and horizontal rail configuration. That solution required additional engineering, new dies and extrusions, new aluminum for the redesigned horizontal mullions and additional costs for fabrication, notching, and coping. These additional costs were denied, so the subcontractor appealed to the General Services Administration Board of Contract Appeals.

While acknowledging the deflection criteria were performance specifications, the curtain wall subcontractor argued the owner had to ensure the specified design accommodated the deflection criteria because the contract imposed design requirements on the sizes, shapes and profiles of the curtain walls. The owner, on the other hand, pointed out that determining the means and methods of accommodating building movement criteria during its design and engineering of the curtain walls was the subcontractor's responsibility. According to the owner, the drawings were only to be considered "diagrammatic," and it was therefore unreasonable for the subcontractor to compromise performance in favor of architectural detailing. Again, referencing the specifications, the owner noted the drawings were just a starting point and were expected to be modified at the subcontractor's discretion to meet performance criteria.

Weighing the arguments

The General Services Administration Board of Contract Appeals recognized that many specifications are a mixture of performance and design, and the extent to which one supercedes the other dictates the degree of discretion allotted the subcontractor to meet specified requirements. The board referenced several other cases to illustrate the issue.

In the case of Santa Fe Engineers Inc. [ASBCA No. 24469, 92-1 BCA 24,665, aff'd, Santa Fe Engineers Inc. v. Kelso, 19 F.3d 39 (Fed. Cir. 1994)], the drawings did not indicate the exact location of duct openings in the floor slabs, so the board correctly concluded the duct chase and slab penetration drawings were performance specifications because no dimensions were given, nor was the structural steel framing needed to support the concrete surrounding the non-dimensioned openings shown. In this case, the contract specifically stated the proper size and location of the sleeves-not to mention prepared openings-was the contractor's responsibility, to be done at his discretion.

In the case of SAE/Americon-Mid Atlantic Inc. (GSBCA No. 12294, et. al., 98-2 BCA 30,084), however, the contractor was found entitled to rely upon the contract drawings for a metal stud backup wall system that showed studs spaced every 406 mm (16 in.), even though that spacing did not meet wind load specifications. The board rejected the owner's argument that designing for wind load resistance was the contractor's responsibility because nowhere did the specifications state the metal studs at the windows needed to be spaced significantly closer than the 406 mm (16 in.) shown uniformly throughout the drawings. The contractor was allowed to recover his additional costs.

Another case, Morrison-Knudson Co. Inc. (ASBCA No. 32476, 90-3 BCA 23,208), involved drawings for a fuel system that powered radar sights in Alaska. The drawings were held to be design specifications because they contained exact dimensions for the fuel system and the configuration of the piping. When the contractor built in accordance with those requirements and had to overcome a defective design for the fuel system, the board decided the contractor was entitled to a contract adjustment.

Finally, in the case of Leslie-Elliott Constructors Inc. (ASBCA No. 20507, 77-1 BCA 12,354), the owner's drawings for an automatic sprinkler system were found to be primarily design specifications, even though the pipe diameters were to be developed by the contractor. This was because the drawings were definitive in describing the number and location of mains, branch lines, and sprinklers, as well as the length of the piping. The board concluded the drawings defined the type of system to be used by the contractor and were not, as the owner argued, merely showing only the overall picture or general scheme of the sprinkler system.

Judgment in the federal courthouse case

In reviewing these cases, the board decided the specifications required the curtain wall subcontractor to follow the drawings in building the project. For example, Paragraph 1.02A stated, "The requirements shown by the details are intended to establish the basic dimensions of the module and sight lines, joint and profiles of members." It went on to state the drawing details are "requirements" and "within these parameters, the Contractor is responsible for the design and engineering of the window system, including whatever modifications or additions may be required to meet the specified requirements and maintain the visual design concept for the entire project."

The board noted the subcontractor's discretion was confined by the requirements shown on the drawing details. Although the contractor could make modifications, any alteration had to conform to the details and maintain the visual design concept of the building. Other specification provisions emphasized the binding nature of these drawing details. Paragraph 2.02A required the subcontractor to "provide shapes and profiles, as shown" for aluminum members.

Paragraph 1.02B described the subcontractor's responsibility for engineering systems and when to engineer systems by stating; "It is however intended that conditions not detailed shall be developed through the contractor's shop drawings to the same level of aesthetics and in compliance with the performance criteria as indicated for the detailed areas and stipulated in the specifications." The board noted the contract drawings depicted the vertical sections with specific sized details.

While the board agreed the performance specifications were important, the contract required the subcontractor to comply with the design requirements and the drawing details and to use his ingenuity and skill in meeting the performance specifications. After reviewing these contract specification provisions, the board could not support the owner's position that the drawing details were merely diagrammatic or that the written specifications subordinated the drawing details to the performance requirements. After all, the mullions for the curtain walls were dimensioned in considerable detail and left the contractor little discretion in their fabrication. Realistically, the contractor could not produce curtain wall mullions that met both the design specifications as well as the contract deflection criteria.

In the end, the General Services Administration Board of Contract Appeals ruled the subcontractor was entitled to an adjustment for the additional costs of resolving this conflict. Ultimately, it was the owner's responsibility to ensure the design specifications met the performance specification requirement for deflection.

Commentary

For design professionals, owners, contractors, and suppliers, the issue of design and performance specifications is an important one. If design specifications are used, the owner is responsible for the design and warrants a satisfactory result if the plans and specifications are followed. If performance specifications are used, the contractor is responsible for selecting the construction means and methods to achieve a satisfactory result. When a project contains both design and performance specifications, then specific areas of work must be analyzed individually to determine the degree of discretion left to the contractor to avoid future conflict.

Thomas E. Abernathy, IV is a partner in the office of Smith, Currie & Hancock (Atlanta, GA) and a Fellow in the American College of Construction Lawyers. He can be reached via e-mail at teabernathy@smithcurrie.com.

Reprinted with permission of The Construction Specifications Institute, 99 Canal Center Plaza, Suite 300, Alexandria, VA 22314, from The Construction Specifier (October 2001).

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