Plans and Specifications Plans and specs are contract documents Defects in construction can be caused by design flaw (plans and specs were wrong) Defects in construction can be caused by faculty construction (practices were wrong) Expert witnesses used in trials to determine which it was (only time opinions are used)

Plans and Specifications Contractor is legally responsible for defects from faulty practice Owner is legally responsible for design defects other than malpractice (unless designer certifies completeness) Trend is to shift responsibility to contractors (Design-Build delivery) Responsibilities are detailed in contracts

Plans and Specifications Traditional method- specifications describe design, owner carries responsibility Design-Build- specifications describe performance, contractor carries responsibility Can be combined form specifications with responsibilities assigned as above

Plans and Specifications Design Specifications – Contractor told what to do – No judgement by contractor – Traditional specifications – Performance is implied – Liability on owner unless designer warrants completeness – Professional standard of care exempts designer from minor mistakes and defects

Plans and Specifications Designer and contractor are not “in privity of contract” Not liable to each other- have no duties toward each other Can’t sue each other Can be different situation for torts availability of material to meet schedule is contractor responsibility

Plans and Specifications Performance specifications – Describe final performance expected – Charge contractor with responsibility for design – Use design-build delivery system – Total liability on contractor – Designer not in contract with owner

Plans and Specifications Combination specs – contain both design and performance clauses – Liability usually determined by arbitrator – Frequently relies on expert witness testimony

Plans and Specifications Or Equal specifications – Design specification or equal – Approved substitutions – Contractor is liable if substitution is made – Gets complicated if original design language was inadequate – Common in government contracting

Plans and Specifications Legal requirements – Substantial completion (not strict) – Law controls completion, not contract language – Must prove causation to collect residual damages (high burden of proof) – Contractor not liable for objectively impossible work specified (use 3 rd party standard) – Contractor not liable for practically impossible or commercially senseless work specified (use 3 rd party standard, must be triggered by an altering event)

Plans and Specifications Shop Drawings – Owner/designer approval does not relieve contractor/supplier of responsibility – Contractor must warn owner if design defect is open, obvious, and apparent – Waiver- knowingly relinquishing a right (proved by evidence of conduct, not writing) – Acceptance- owner can accept work with knowledge of obvious defect

Plans and Specifications Onerous or exculpatory clauses- contract language that nullifies a fundamental legal right or violated public policy

Plans and Specifications Scope of work should be clear in the plans and specifications to aid contract interpretation and reduce ambiguity Interpretation of scope involves determination if contract is ambiguous, then application of various rules to determine scope interpretation

Plans and Specifications Ambiguous contract – Two reasonable interpretations – Only examine documentary evidence – Must understand the claims for determination – Absurd interpretations disallowed – Onerous, exculpatory, and unconscionable interpretations are disallowed

Plans and Specifications Application of rules – Parol evidence- outside the contract (letters, memos, phone logs, meeting minutes- must be in writing) – Patent ambiguity- resolve in favor of drafting party – Custom and usage- must be introduced through expert testimony

Plans and Specifications – Course of dealing- prior behaviors between the parties – Ordinary meaning- special definitions of words not allowed unless spelled out – Implied terms- some work is implied as necessary for completion (used carefully) – Whole argument- must follow the spirit of the entire agreement

Plans and Specifications – Clear expression of intent- drafter must make intent obvious – Clerical error- clerical errors are ignored unless materially relied upon by non-drafting party – Order of precedence- conflicting provisions are common. Preference given to: Special over general Handwritten over typewritten Typewritten over pre-printed Words over figures