Defective Specifications & Construction Defect Contract Claims

When arguing or negotiating construction defect claims for defective specifications in federal government contract claims, companies must show that such defective specifications are not suitable for producing the required result. These are very fact specific situations that must be first introduced at the Agency level.

Contractors often make the costly mistake of introducing new evidence on appeal. This can cost millions in a viable case that may otherwise have legal merit. The government often will deny this assertion and try to show that failures were attributed to your allegedly poorly-controlled internal procedures.

Government Contractor Requirements to Recoup for Defective Specifications

The requirements for a contractor’s recovery for defective specifications and government contract claims are stated in many court decisions:

In construction defect claims, where the Government has specified the manner in which work is to be done, it warrants the outcome. Once the contractor has established it substantially complied with Government plans and specifications, but that unsatisfactory performance resulted, the burden shifts to the Government to prove that the contractor performed improperly, or that other causes were absolving the Government of liability. SPS Mechanical Co., Inc., ASBCA No. 48643, 01-1 BCA ¶ 31,318 at 154,692 citing C.L. Fairley Constr. Co. Inc.

To obtain an equitable adjustment from the government as a consequence of defective specifications, “a contractor must show three necessary elements – liability, causation, and resultant injury.” See Servidone Construction Corp. v. United States, 931 F.2d 860, 861 (Fed. Cir. 1991) citing Wunderlich Contracting Co. v. United States, 351 F.2d 956, 968, 173 Ct. Cl. 180 (1965).

Design versus Performance Specifications in Construction Defect Claims

In construction defect claims, design specifications and drawings should describe in precise detail the materials to be incorporated and the manner in which the work is to be performed, from which the contractor is not permitted to deviate.

Government Specifications for Construction Performance

The government, in contrast, should set forth an objective or standard to be achieved, and the contractor may use its ingenuity to select the means to achieve that goal or level of performance while assuming responsibility for meeting contract requirements. J. L. Simmons Co., 412 F.2d at 1362.

Making a clear distinction between construction design and performance specifications is not absolute; it is the obligation imposed by government specifications which determine the extent to which a contract contains performance or design specifications. See Blake Construction Co. v. United States, 987 F.2d 743, 746 (Fed. Cir. 1993). Government contracts may have both design and performance characteristics; design limits the contractor’s flexibility while performance grants some leeway in how the work is to be accomplished.

• There is an implied warranty that government design specifications detailing the actual method of performance are free of errors and the contractor can successfully perform based on the specifications of a resulting suitable product.
• The government’s restrictive oversight of your manufacturing process and its retained right to accept, reject, or modify your proposed production methods, reflect design characteristics for which the government remains responsible. Collazo Contractors, Inc., ASBCA No. 53925, 05-2 BCA ¶ 33,035 at 163.

Defenses In Defective Specifications and Government Contract Claims Cases

In a construction defect claims case, when the government defends by alleging that your internal processes are lacking, you may still show evidence in defective specifications, and government contract claims that you have tightly controlled any of the relevant processes.

When a contractor proves that the intended result cannot be produced despite its adherence to the government specifications, the burden shifts to the government to establish “additional causes of the contractor’s difficulties that absolve the Government of responsibility.” Woerner Engineering, Inc., ASBCA No. 52248, 03-1 BCA ¶ 32,196 at 159,141, citing R.C. Hedreen Co., ASBCA No. 20599, 77-1 BCA ¶ 12,328 at 59,554. See information about government contract claims and supporting documentation.

You only have to show by a preponderance of the evidence that the government provided defective specifications and that the acceptable result could not have occurred despite following the Agency’s specifications.

• During the performance period, you should always have written communication with the government as proof when you file an appeal based on defective specifications.

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For additional help with construction defect claims, government defective specifications, and government contract claims with construction engineering and drawings, call our government claims lawyers at 1-866-601-5518.