“There are generally two types of specifications: design specifications, which tell the contractor in detail how the work is to be performed; and performance specifications, which tell the contractor the end result that is expected and leave it to the contractor to determine the best way to get to the result.” Appeals of Skanska USA Civil Southeast, Inc., ASBCA No. 61220, 2025 WL 1217296 (ASBCA 2025).

Now, what if the contractor is NOT able to achieve the performance specification’s end result (objective) and wants to shift the risk to the owner, and be excused, from not being able to achieve the performance specification? The contractor is seeking additional costs and/or an excuse of performance arguing the performance specification is impossible to achieve.

Typically, the contractor would need to establish impossibility [of performance] or commercial practicability in achieving the performance specification. See Appeals of Skanska USA Civil Southeast, supra.  Impossibility of performance refers to performance being objectively impossible. Id. The party “must show it was incapable of performing the contract and that ‘no similarly-situated contractor could have performed.’” Id. (citation omitted). Courts evaluate the following factors in impossibility of performance claims: “(1) whether any other contractor was able to comply with the specifications; (2) whether the specifications require performance beyond the state of the art [i.e., an objective showing that no contractor could accomplish the specified task]; (3) the extent of the contractor’s efforts in meeting the specifications; and (4) whether the contractor assumed the risk that the specifications might be defective. Id.

Notably, impossibility of performance does not only refer to absolute impossibility but could also be satisfied by proving commercial impracticability. “A contract is commercially impracticable when performance would cause ‘extreme and unreasonably difficulty, expense, injury, or loss to one of the parties.’” See Appeals of Skanska USA Civil Southeast, supra(citation omitted).

Remember, there is a difference between a design specification (where there is an implied warranty) and a performance specification. If dealing with a performance specification and the inability to achieve it, you need to prove impossibility of performance in the form of absolute impossibility or commercial impracticability.

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.