An Armed Services Board of Contract Appeals dispute, Appeal of L.S. Black-Loeffel Civil Constructors JV, ASBCA No. 62402, 2023 WL 5827241 (ASBCA 2023), involved which party bore liability for delay—the federal government or the prime contractor–based on various legal theories.  Without detailing the factual details, a number of interesting legal issues were raised in this dispute including (1) a defective specification challenge, (2) excusable delay, (3) Type I differing site condition, and (4) superior knowledge.  These legal issues are discussed below.

1. Specification Challenge (Defective Specifications)

The contractor claimed that the government’s specifications were defective in regard to a thermal control plan. The government countered that the specifications were not design specifications but performance specifications. The specifications were performance based because they did not tell the contractor how to achieve the performance-based criteria.

[A] defective specification cause of action only applies to defective design specifications; it does not apply to allegedly defective performance specifications.


Performance specifications set forth an objective or standard to be achieved, and the successful bidder is expected to exercise his ingenuity in achieving that objective or standard of performance, selecting the means and assuming a corresponding responsibility for that selection. Design specifications, in contrast, describe in precise detail the materials to be employed and the manner in which the work is to be performed. The contractor has no discretion to deviate from the specifications, but is required to follow them as one would a road map.

The amount of discretion the specifications give to the contractor in execution of the contract is a question of contract interpretation, which is a matter of law for this Board to decide.

L.S. Black-Loeffel, supra (internal citations and quotations omitted).

2. Excusable Delay

The contractor claimed the government constantly rejected its thermal control plan without providing any reason other than it was incomplete and did not meet the specifications, and this caused an excusable delay to the project.

To establish entitlement to an extension based on excusable delay, a contractor must who that the delay resulted from unforeseeable causes beyond the control and without the fault or negligence of the Contractor, and the unforeseeable cause must delay the overall contract completion, i.e., it must affect the critical path of performance. Similarly, where both parties contribute to the delay, neither can recover damage, unless there is the proof of clear apportionment of the delay and the expensive attributable to each party.

L.S. Black-Loeffel, supra (internal citations and quotations omitted).

The Board found that the government reviewed the contractor’s thermal control plan within the timeframe in the contract. “The fact that [the contractor] needed multiple submittals speaks more to the incomplete nature of its submittals than it does to any delays on the part of the government.” L.S. Black-Loeffel, supra (“[I]n every instance, the government provided a facially reasonable basis for rejecting the submittal and [the contractor] has not presented a single piece of evidence challenging those bases.”).

3. Type I Differing Site Condition

The contractor further contended that historical water tables incorporated into the contract “bound the government regarding the water levels [the contractor] would encounter and that water levels it encountered constituted a Type I differing site condition.” L.S. Black-Loeffel, supra.

In order to establish a Type I differing site condition, a contractor must prove all four of the following elements: (1) that a reasonable contractor would interpret the contract documents as making a representation of the site conditions; (2) the actual site conditions were not reasonably foreseeable such that the contractor reasonably relied on the representations; (3) the contractor did in fact rely on the contract representation; and (4) the conditions differed materially from those represented and the contractor suffered damages as a result.

L.S. Black-Loeffel, supra.

The first element is based on the contract; it’s a matter of contract interpretation. Id.   However, here, the contract stated that the actual water levels may vary from those indicated in the historical hydrographs.  Id. (“The contract, and the hydrographs themselves, say nothing about the precise conditions the contract would encounter during performance.”). Thus, the Board found that the historical hydrographs of water tables did not constitute a representation of site conditions.  Id.

The second element includes reasonable foreseeability. Weather, regardless of severity, is not considered a differing site condition under the Federal Acquisition Regulations differing site conditions clauseId. (“[T]he differing site conditions clause applies only to conditions which existed at the time of contracting; weather conditions which occur during the contract period are not covered by the differing site conditions clause.”).  Here, the Board found that high water tables was a weather condition where the contractor was offered additional time, but not additional compensation. Id. (“A contractor usually is only entitled to additional time for unusually severe weather, but the government has no legal responsibility for the additional costs incurred.”).

4. Superior Knowledge

The contractor also claimed the government had superior knowledge of the design and construction of a component of the project and did not share it. “The doctrine of superior knowledge is based upon the premise that, where the government has knowledge of vital information that will affect a contractor’s performance, the government is obligated to share that information.” L.S. Black-Loeffel, supra.

In order to recover a claim based on superior knowledge, the contractor must show: (1) the contractor undertook performance without vital knowledge of a fact that affects performance costs or duration; (2) the government was aware the contractor had no knowledge of the vital information and no reason to obtain such information; (3) the contract specification supplied misled the contractor or did not put it on notice to inquire; and (4) the government failed to provide relevant information.” Id.  This argument is “grounded in the government’s warranty of its contract specifications.” Id.

However, because the specifications were performance-based, the Board found this did not apply – “[b]ecause no warranty attaches to the government’s performance specifications, it has no duty to disclose superior knowledge.” Id.  Moreover, the government had no way of knowing the contractor had no knowledge of the purported vital information and no reason to obtain it to support a superior knowledge argument.

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.


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.