Payne Hackenbracht & Sullivan
Implied Warranty in Specifications
When the Government specifies a specific procedure for implementation, the Contractor has a right to rely on that procedure to accomplish the intended results, if the procedure is properly followed by the Contractor. An implied warranty runs from the Government to the Contractor that the detailed design specification, if followed, will produce an acceptable result. See United States v. Spearin, 248 U.S. 132 (1918); J. D. Hedin construction Co., Inc., 171 Ct.Cl. 70, 347 F.2d 235 (1965); Lionsgate Corporation, Eng BCA No. 5391, 91-1 BCA 23368.
The various agency boards of contract appeals all apply the long-standing principle established by United States v. Spearin, 248 U.S. 132 (1918), that by including a method of performance or particular process in the specification, the Government impliedly warrants the adequacy of that method or process to accomplish the desired results. See, e.g., Owen L. Scham Construction Co., Inc., ASBCA No. 22407, 79-2 BCA 13,919 (1979). In the event the information provided by the government is defective, the contractor is entitled to recover any increased costs of performance resulting from its reliance on the specification. See R.C. Hedreen Co., ASBCA No. 20599, 77-1 BCA 12,328; Turner Construction Co, GSBCA No. 3549, 74-2 BCA 10,934 (1974).
This warranty applies to any method or process provided by the government in the specifications, regardless of whether the contractor is obligated to follow it in performance. For example, in Maitland Brothers Company, ASBCA No. 23849, 83-1 BCA 16,434 (1983), the government indicated in the specification that a particular type of equipment could effectively be used to perform the required excavation work, but stopped short of mandating the use of such equipment. Although the contractor was therefore free to use any equipment or means of performance available to it, the Board interpreted the specification reference to such equipment as an affirmative representation upon which the contractor was entitled to rely. 83-1 BCA at p.81,756 - 81,757. Given the contractor's election to use the specified equipment, the Board concluded that the contractor could recover those additional costs flowing from the failure of the equipment to perform as indicated. 83-1 BCA at p.81,759.
In reaching its decision, the Board analogized the situation before it to one where the specification provides the contractor a choice of alternative methods of operation or materials. It is well-settled that, in such circumstances, the implied warranty of specifications extends to each identified alternative and that the contractor is entitled to recover those additional costs resulting from the failure of the method selected. See Southern Paving Corp., AGBCA No. 74-103, 77-2 BCA 12,813 at p.62,363 (1977). As the decision in Maitland Brothers illustrates, this principle applies equally where the performance alternatives include one provided by the government in the specification, regardless of whether the contractor also is free to develop and implement its own.
(See Design/Peformance Specifications)