SPEARIN DOCTRINE AS AN AFFIRMATIVE DEFENSE

images-1The Spearin doctrine, referred to as the implied warranty of constructability doctrine, is oftentimes utilized as an affirmative defense by a contractor being sued for construction defects.  Under the Spearin doctrine (recognized in the government contract setting), a contractor is NOT liable for defects in the plans and specifications furnished by the owner if the contractor constructs the project pursuant to the plans and specifications.  This is because the owner impliedly warrants the constructability of the plans and specifications it furnishes to the contractor.  Hence, the contractor should not be liable for defective construction caused by the owner furnishing defective plans and specifications.

 

As with any affirmative defense, the contractor asserting the Spearin doctrine has the burden to prove the merits of the defenseSpecifically, the contractor has the burden to prove that there was an error in the plans or specifications and that such error was the proximate cause of the defective construction.  The contractor needs to prove this in order to sustain the Spearin doctrine as an affirmative defense.  See, e.g., Underwater Engineering Services, Inc. v. Utility Board of the City of Key West, 194 So.3d 437, n. 4 (Fla. 3d DCA 2016) (“By raising this defense [of the Spearin Doctrine] Underwater [contractor] had the burden to prove not only that there was a defect in the specifications, but that the defect in the specifications was the proximate cause of the failure of the eight [concrete] collars.”); see also Rick’s Mushroom Service, Inc. v. U.S., 521 F.3d 1338, 1344-45 (Fed.Cir. 2008) (“‘When the government provides a contractor with defective specifications, the government is deemed to have breached the implied warranty that satisfactory contract performance will result from adherence to the specifications, and the contractor is entitled to recover all of the costs proximately flowing from the breach.’”) quoting Essex Electro Eng’rs, Inc. v. Danzig, 224 F.3d 1283, 1289 (Fed.Cir.2000).

 

Asserting the Spearin doctrine as an affirmative defense is one thing, but proving it is another.  If relying on this defense, make sure to prove through expert testimony that there was (i) a defect in the plans or specifications furnished by the owner and (ii) that this defect proximately caused the defects or failures being asserted by the plaintiff (e.g., owner).   

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

SUBCONTRACTORS: MAKE SURE YOU DILIGENTLY REVIEW THE CONTRACT DOCUMENTS

UnknownSubcontractors: make sure you review, and I mean review, the contract documents (drawings and specifications) and estimate properly.  Seek clarification or submit an RFI if there is a conflict in the drawings and specifications. If you do not, you could be responsible for a drawing error that was not your fault no matter how unfair this sounds.  This is illustrated in the recent opinion in U.S. f/u/b/o Asphalt Contractors & Site Work, Inc. v. Kar Contracting, LLC, 2015 WL 8074073 (S.D. W.V. 2015). 

 

In this dispute, a prime contractor for a federal project was soliciting subcontractor bids for paving work / asphalt resurfacing.  The prime contractor provided a subcontractor a link to a website where the specifications and drawings could be downloaded.  (Not uncommon that drawings and specifications are furnished through an FTP site or web-based platform.)  One of the plan sheets the subcontractor relied on was later determined—after the subcontract was awarded to the subcontractor—not to be drawn to scale.  This error conflicted with another plan sheet.  This error was neither the prime contractor’s nor the subcontractor’s fault.  Unfortunately, this error resulted in the subcontractor underbidding the amount of asphalt required for the job. The subcontractor sought to recoup its additional costs associated with the drawing error from the prime contractor (and its Miller Act payment bond surety).

 

Not surprisingly, the subcontractor’s argument was that it should not be held liable for the drawing error that resulted in it underestimating the amount of asphalt required for the pavement work.   The court found this argument unpersuasive.  There was a conflict in the drawings relating to the amount of asphalt required. If the subcontractor relied on the drawing drawn to scale and requiring more asphalt, it would not have underestimated its costs.  The subcontractor had the opportunity and obligation to review the plans and the prime contractor did not prevent the subcontractor from seeking clarification regarding the conflict in the drawings. Further, the subcontractor offered no evidence that the prime contractor was awaare of the drawing error or in any way induced the subcontractor to underestimate the amount of asphalt required for the pavement work.

 

When subcontractors prepare bids and enter into subcontracts, they generally have access to the full plans and specifications. It is incumbent on subcontractors to review the plans and specifications to ensure they are capturing all of the specifications and plan sheets applicable to their scope.  Otherwise, if they make a mistake, whether it be failing to account for a certain detail, plan sheet, specification section, or addressing a conflict on the front end, that mistake can fall back on them.

 

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

 

 

 

 

DIFFERENCE BETWEEN A DESIGN AND PERFORMANCE SPECIFICATION AND THE SPEARIN DOCTRINE

UnknownThe difference between a design specification and a performance specification is important under what is known as the Spearin doctrine–the implied warranty of constructability doctrine–based on the United Supreme Court case U.S. v. Spearin, 248 U.S. 132 (1918). The Spearin doctrine is recognized in Florida. See Martin K. Eby Const. Co., Inc. v. Jacksonville Tranp. Authority, 436 F.Supp.2d 1276 (M.D.Fla. 2005).

 

Under the Spearin doctrine, a general contractor is not liable for defects in the plans and specifications furnished by the owner if it constructs the project pursuant to the plans and specifications. This is because the owner impliedly warrants the plans and specifications that it furnishes to its contractor. The Supreme Court in Spearin stated:

 

“[I]f the contractor is bound to build according to plans and specifications prepared by the owner, the contractor will not be responsible for the consequences of defects in the plans and specifications. This responsibility of the owner is not overcome by the usual clauses requiring builders to visit the site, to check the plans, and to inform themselves of the requirements of the work….”

 

Travelers Cas. And Surety Co. of America v. U.S., 74 Fed.Cl. 75, 89 (2006) citing Spearin, 248 U.S. at 136.

 

There are many cases discussing the application and limitations of the Spearin doctrine arising from federal government contract law. What is important is that the Spearin or implied warranty of constructability doctrine applies to design specifications and does not apply to performance specifications. See Martin K. Eby, 436 F.Supp.2d at 1308 (“The purpose of the Spearin doctrine is to allow contractors to recover when the government [owner] does not fulfill the responsibility it has undertaken in preparing and supplying design specifications.”)

 

So, what is the difference between a design and performance specification? The difference between these two types of specifications is best described as as follows:

 

Design specifications dictate the ‘how’ governing a contractor’s tasks, in contrast to performance specifications, which concern the ‘what’ that is to be done…The relevant inquiring [as to the distinction between these specifications] concerns quality and quantity of the obligations that the specifications impose. Hence, detailed measurements, tolerances, materials, i.e., elaborate instructions on how to perform the contract qualify as design specifications. In other words, where the specifications are described in precise detail and permit the contractor no discretion, they are design [specifications]. In contrast, where the specifications set forth simply an objective or standard and leave the means of attaining that end to the contractor, they are performance [specifications].”

 

Travelers Cas. And Surety Co. of America, 74 Fed.Cl. at 89; See also Martin K. Eby, 436 F.Supp.2d at 1308, n.47 (“Design specifications explicitly state how the contract is to be performed and permit no deviations. Performance specifications, on the other hand, specify the results to be obtained, and leave it to the contractor to determine how to achieve those results.”) (internal quotations and citation omitted).

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.