Legal Problems Arising out of Highway Programs. Topic 17-04. Legal Aspects of Performance-Based Specifications for Highway Construction and Maintenance Contracts

As state agencies have moved towards greater use of alternative contracting including design-build, warranty contracting, performance-based maintenance, and public-private partnerships for highway construction projects, these contracts use performance-based specifications to give contracting entities more flexibility to meet contract requirements. Whether delivered under a design-build or a traditional design-bid-build contract, construction contracts often contain both prescriptive (or method-based) and performance-based specifications. Under the Spearin doctrine, based on the landmark case United States v. Spearin, 248 U.S. 132 (1918), an owner using detailed design or method-based specifications is deemed to warrant that the specifications and other design information it provides to the contractor are accurate and suitable. However, when an owner decides to use a performance-based specification, setting forth general performance objectives and allowing the contractor to select design solutions, materials and methods to meet or exceed specified performance criteria, responsibility for the accuracy and sufficiency of the design and construction must shift to the contractor. Should the constructed product prove defective or fail to meet specified performance requirements, disputes have arisen over responsibility for curing defects or achieving the required performance. Sorting out issues of liability often hinge upon (1) which aspects are considered design or prescriptive requirements prescribed by the owner; (2) which aspects of construction are based on a performance requirement and hence are under the contractor's control; and (3) whether these requirements conflict in the specifications. Highway agency staff drafting or reviewing specifications, particularly for alternative contracts, need a clear understanding of performance-based specifications, including how they differ from traditional design or method-based specifications and how risk allocation changes. A technical and legal overview should be provided to determine when performance-based specifications should or should not be used. Case studies should be identified and analyzed that present lessons-learned from legal issues and disputes that have arisen regarding their use. The case studies can provide guidance on how to minimize legal issues, claims or protests regarding specification interpretation or responsibility for performance in highway construction and maintenance contracts.


  • English


  • Status: Completed
  • Funding: $40400.00
  • Contract Numbers:

    Project 20-06, Topic

  • Sponsor Organizations:

    Federal Highway Administration

    1200 New Jersey Avenue, SE
    Washington, DC  United States  20590

    American Association of State Highway & Transportation Officials (AASHTO)

    444 North Capitol Street, NW, Suite 225
    Washington, DC  United States  20001

    National Cooperative Highway Research Program

    Transportation Research Board
    500 Fifth Street, NW
    Washington, DC  United States  20001
  • Project Managers:

    McDaniel, James

  • Performing Organizations:

    Capital Project Strategies, LLC

  • Start Date: 20110101
  • Expected Completion Date: 0
  • Actual Completion Date: 20111231
  • Source Data: RiP Project 38169

Subject/Index Terms

Filing Info

  • Accession Number: 01556451
  • Record Type: Research project
  • Source Agency: Transportation Research Board
  • Contract Numbers: Project 20-06, Topic
  • Files: TRB, RiP
  • Created Date: Mar 6 2015 1:00AM