LEGALIMPLICATIONS

GERALD I. KATZATTORNEY WITH KATZ & STONE, LLP

VIENNA, VIRGINIACSI’S 59TH (2006) ANNUAL SHOW AND CONVENTION

• Why does a specification fail?

- Technically defective or flawed - Ambiguous or cannot be

understood • Therefore, such a specification will

not produce the intended result and thus will not be legally enforceable

A Legal Observation

Specifications contain written sophisticated and technical information that requires specialized knowledge to understand, specifications are held to a higher standard

Drawings are difficult for most people to

understand and interpret

Attitude of the Courts

Specifications are Contract DocumentsAs legal documents, specifications are subject to ordinary rules of contract interpretation:

Interpretation by the Courts

• Agreement is examined to establish meaning intended

• Specific provisions take precedence over general terms

• Trade customs, practices and usages may be introduced

• Practical interpretations of ambiguities and conflicts are considered

• Ambiguities are interpreted against the party that caused the uncertainty to exist - drafter should have been more precise

• Handwritten or typed insertions govern over pre-printed clauses

Interpretation by the Courts

Principle:The Owner of a Project warrants to the Contractor that the Drawings and Specifications, prepare by the Architect and Consultants, sufficiently describes, details, and specifies the Work requiredUNITED STATES v. SPEARIN248 US 132 (1918)

Spearin Doctrine

Implication: Contractor not responsible for consequences that result from defects in the Drawings and Specifications due to errors, omissions, discrepancies and mistakes

Spearin Doctrine

When the wheels fall off …

... and the lawyers walk into the room …

… standards will be the YARDSTICK

Industry Standards

MASTERFORMAT

MasterFormatDeveloped by CSI

Organizational structure for construction information

Master list of numbers and titles

MasterFormatDivisions

– 50 division format– Not organized around

traditional subcontracts or construction trades

– Follows logical groupings of work results

Sections– 6 digit numbers (some 8)– Section covers one portion

of work results

ANATOMY of aSPECIFICATION

PART 1 – GENERALIndicates non-tangible requirements of a product, material or equipment and administrative provisions for the Work

PART 2 – PRODUCTSIndicates technical requirements, physical properties, performance and qualities for products, materials and equipment

PART 3 – EXECUTIONIndicates installation provisions and testing-inspection requirements

Specification Structure

PART 1 – GENERAL SummaryPrice and Payment ProceduresReferencesAdministrative RequirementsSubmittalsQuality AssuranceDelivery, Storage, and HandlingField ConditionsWarranty

PART 2 – PRODUCTS Owner-Furnished Products- Manufacturers- Description- Performance/Design Criteria- Operation- Materials- Fabrication- Mixes- FinishesAccessoriesSource Quality Control

PART 3 – EXECUTION InstallersExaminationPreparationErection / Installation / ApplicationRepairRe-InstallationField Quality ControlSystem Start-UpAdjustingCleaningCloseout ActivitiesProtectionMaintenanceAttachments

Specifications are powerful, if and only ifYOU believe they are soYOU make them so

Which of these images best represent your specifications?

Power of Specifications

THE OWNER

Real Client and Customer

ResourcesCONSTRUCTION SPECIFICATIONSPrinciples and ApplicationsDavid J. Wyatt and Hans W. Meier

CONSTRUCTION SPECIFICATION WRITINGPrinciples and ProceduresHarold J. Rosen and John R. Regener Jr.

ResourcesCONSTRUCTION SPECIFICATIONSPRACTICE GUIDEThe Construction Specifications Institute

SECTIONFORMAT/PAGEFORMATThe Construction Specifications Institute

D+D Specifiers Series

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Questions

WALTER SCARBOROUGHCSI CCS CCCA SCIP AIAwscarborough@hbig.us214.491.7385