The Holloway Consulting Group, LLC is an expert in the analysis of defective construction specifications. Steve Holloway has been qualified in various dispute resolution forums as a leading expert in the analysis of defective construction specifications.
In our experience, most contract disputes involve the differences between what the construction contract documents say versus what the contractor interpreted them to say. The term “Defective Specifications” generally refers to documents that contain demonstrable flaws. Defective Specifications is probably the most fertile ground for this type of change and typically presents the least difficulty in securing owner approval and payment.
Common reasons for defective specifications include:
- Cut-and-paste specs.
- Stupid specs.
- Out-of-Date Specs.
- Inconsistencies between plans and specs.
Cut-and-Paste Specs
“Cut-and-paste” describes the process by which many specifications are prepared. Whether prepared manually or electronically, most specifications begin with a generic format. It might be either some existing specification that the architect used for a past similar project, or it may be a commercially prepared standard format, such as those produced by the Construction Specifications Institute (CII). In any case, specifications are rarely prepared from scratch, with solely your client’s project in mind.
Two factors increase the probability that cut-and-paste will result in errors in the contract documents:
- The technical specifications tend to be a secondary priority. When the design is complete, the technical specifications and contracts are finally assembled. For this reason, cut-and-paste is sometimes looked at as one of the least costly methods of preparing specifications.
- The technical specifications and the front-end contract documents are often assembled at the last minute. When the deadline of the bid solicitation date looms, serious attention is given to completing the specifications.
Stupid Specs
Stupid specs are similar to “cut-and-paste” specs in that they tend to originate in other areas and are pasted into the contract documents. They can come from many sources, but the most common examples include:
- Product requirements obtained from manufacturers’ brochures. The difficulty arises when several other manufacturers are listed as acceptable, and the words “or equal” are included, because “equal” manufacturers will often have different specifications. If the differences are slight, they tend to go unnoticed. If they’re significant, the contractor may be entitled to a change order if forced to provide the “specified” item at an increased cost.
- Specifications written by manufacturers’ representatives. Because the specification preparation process can be tedious and unpleasant, architects may be receptive to a manufacturer’s rep’s offer to prepare those sections specifying his or her product. As a result, the final specs may not be exactly what the architect originally had in mind.
- Specifications written without a specific product in mind. On occasion, a specification will be written without a specific product in mind. Desirable qualities or requirements will be listed, without confirming if they all are available in a particular product. If this becomes a problem, it is usually because some qualities will be found in one product and different qualities will be found in others.
Out-of-Date Specs
If a specification’s age becomes a problem, it will often be on a public project, because public projects are subject to variations in political funding. It is common for a state or federal project to be shelved for two, three, or more years while it waits for the political climate that will allow it to proceed.
A project’s time on the shelf increases the possibility that priorities will change. The people in the chain of command will have different authorities. Even the people who designed the job in the architect’s office may be working somewhere else. The project architect might even be out of business.
The net effect is that the original project concept may become altered, and the reasons for certain design decisions will be lost. Accountability for design success becomes diffused, and motivation for decisive action necessary to keep on schedule can become nonexistent.
Inconsistencies in the Plans and Specs
If a specification is subject to more than one reasonable interpretation, the contractor generally has the right to choose an interpretation. Such inconsistencies may take the form of:
a) Discrepancies between requirements of the plans and specifications.
b) Differences between small and large details.
c) Differences between planned and finished schedule requirements.
d) Differences in plan dimensions and equipment locations among design disciplines.
e) Differences between the actual equipment cuts and those details originally shown in the contract.
FINDING CHANGE ORDERS IN BUILDING PROJECT PLANS AND SPECS is the next topic to be summarized here.