Understanding Defective Specifications

Abstract

This paper outlines the key elements of defective specification disputes. The framework for resolving defective specification disputes is based on an in-depth examination of more than 100 appellate court decisions. The decision process is based on the following questions: What caused the failure? Which party had control over the feature that led to the failure? These two questions define whether the specifications are of the method or performance type. Thereafter, the following questions apply: Did the contractor follow the specifications? Could the work have been successfully performed by any method? Did the contractor warrant the outcome? A flowchart detailing the important questions is provided to guide a step-by-step procedure for determining issues of entitlement. The questions and hierarchial order of the flowchart generally reflect the manner in which courts resolve similar disputes. The paper concludes with an example that illustrates how an administrator can resolve a dispute using the flowchart.