DESIGN SPECS VS. PERFORMANCE SPECS: WHAT'S THE DIFFERENCE?

1. COMPARISON OF DESIGN, PERFORMANCE, AND HYBRID SPECIFICATIONS 1
1. DESIGN SPECIFICATIONS 1
1. DEFINITION
2. OWNER'S INVOLVEMENT IN PREPARING SPECIFICATIONS
3. EXAMPLE
2. PERFORMANCE SPECIFICATIONS 1
1. DEFINITION
2. OWNER'S INVOLVEMENT IN PREPARING SPECIFICATIONS
3. EXAMPLE
3. HYBRID/COMBINED SPECIFICATIONS 3
1. DEFINITION
2. OWNER'S INVOLVEMENT IN PREPARING SPECIFICATIONS
3. EXAMPLE
2. WHERE DESIGN, PERFORMANCE, AND HYBRID SPECIFICATIONS ARE FOUND.4
1. TRADITIONAL DESIGN-BID-BUILD 4
2. DESIGN-BUILD 5
3. LEGAL RESPONSIBILITY FOR SUFFICIENCY OF SPECIFICATIONS 5
1. OVERVIEW 5
2. DESIGN SPECIFICATIONS 6
1. THE MAJORITY SPEARIN DOCTRINE
2. TEXAS UNSETTLED LAW
1. TEXAS CASE SUMMARIES
3. PERFORMANCE SPECIFICATIONS: CONTRACTOR IS RESPONSIBLE FOR ACHIEVING PERFORMANCE CRITERIA 17
1. POTENTIAL PERFORMANCE SPECIFICATION RESPONSIBILITY FOR PRODUCTS
4. HYBRID SPECIFICATIONS 18
4. CONTRACTOR'S DAMAGES WHEN OWNER FAILS TO SUPPLY ADEQUATE PLANS AND SPECIFICATIONS (COURTS FOLLOWING THE MAJORITY) 19
5. OWNER'S POSSIBLE DEFENSES TO LIABILITY WHEN OWNER FAILS TO SUPPLY ADEQUATE PLANS AND SPECIFICATIONS 20
1. CONTRACTOR FAILS TO FOLLOW PLANS AND SPECIFICATIONS 20
2. CONTRACTOR FAILS TO PERFORM IN GOOD AND WORKMANLIKE MANNER 21
3. PATENT DISCREPANCIES IN THE PLANS AND SPECIFICATIONS: 21
4. CONTRACTOR'S FAILURE TO CONDUCT SITE INSPECTION 21
5. CONTRACTUAL PROVISIONS REQUIRING NOTIFICATION OF DEFECTS IN PLANS AND SPECIFICATIONS 21
6. CONTRACTUAL ALLOCATION OF RISKS FOR DESIGN DEFECTS 21
1. OVERVIEW 21
2. INDEMNIFICATION OF RISKS 22
3. STANDARD FORMS OF CONTRACT 22
1. AIA A-201, 1987 edition
2. AIA A-201, 1997 edition
7. PRACTICE TIPS TO OWNERS AND CONTRACTORS 24
1. REGARDLESS OF WHETHER YOU REPRESENT THE OWNER OR CONTRACTOR 24
2. IF YOU REPRESENT AN OWNER 25
3. IF YOU REPRESENT CONTRACTOR 25

Abstract

Regardless of whether a project is design-bid-build or design-build, problems may arise with respect to the sufficiency of the plans and specifications. Whether you represent an owner or contractor, this outline will help you to understand the ramifications of using design, performance, and hybrid specifications. Additionally, this outline will assist you in navigating the unsettled waters of Texas case law regarding warranties of the sufficiency of specifications. Practice tips are presented at the end of this paper which include drafting strategies to minimize the uncertainties concerning the responsibility for defective plans and specifications.

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