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Suggested Citation:"Legal Research Digest 61." National Academies of Sciences, Engineering, and Medicine. 2013. Legal Aspects of Performance-Based Specifications for Highway Construction and Maintenance Contracts. Washington, DC: The National Academies Press. doi: 10.17226/22534.
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Legal Research Digest 61 national Cooperative highway researCh program July 2013 TRANSPORTATION RESEARCH BOARD OF THE NATIONAL ACADEMIES legal aspects of performance-based specifications for highway construction and maintenance contracts This report was prepared under NCHRP Project 20-6, “Legal Problems Arising Out of Highway Programs,” for which the Transportation Research Board is the agency coordinating the research. The report was prepared by Michael C. Loulakis, Esq., Capital Project Strategies, LLC. James B. McDaniel, TRB Counsel for Legal Research Projects, was the principal investigator and content editor. the problem and its solution State highway departments and transportation agen- cies have a continuing need to keep abreast of operat- ing practices and legal elements of specific problems in highway law. This report continues NCHRP’s practice of keeping departments up-to-date on laws that will affect their operations. applications As state agencies have moved toward greater use of alternative contracting, including design-build, war- ranty contracting, performance-based maintenance, and public–private partnerships for highway construction projects, these contracts use performance-based speci- fications 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 and performance-based specifications. Under the doc- trine from the landmark United States Supreme Court case, United States v. Spearin, 248 U.S. 132 (1918), an owner using detailed design or method-based specifica- tions 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 con- tractor to select design solutions, materials, and meth- ods to meet or exceed specified performance criteria, responsibility for the accuracy and sufficiency of the de- sign and construction generally falls upon 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 hinges upon 1) which aspects are con- sidered 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. A technical and legal overview is provided to help in determining the appropriateness of performance-based specifications. Since highway agency legal and contract- ing staff are drafting or will most likely be called upon to draft or review specifications, a better understanding of performance-based specifications—including how they differ from traditional design or method-based specifica- tions and how risk allocation changes—should be useful. Overall, this digest should be useful to transportation agencies’ administrators, attorneys, contracting officers, contract administrators, construction managers, engi- neers, contractors, and financial managers.

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TRB’s National Cooperative Highway Research Program (NCHRP) Legal Research Digest 61: Legal Aspects of Performance-Based Specifications for Highway Construction and Maintenance Contracts explores how performance-based specifications differ from traditional design or method-based specifications and the risk allocation differences between the these methods.

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