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LEGAL IMPLICATIONS

LEGAL IMPLICATIONS. A Legal Observation. GERALD I. KATZ ATTORNEY WITH KATZ & STONE, LLP VIENNA, VIRGINIA CSI’S 59 TH (2006) ANNUAL SHOW AND CONVENTION Why does a specification fail? - Technically defective or flawed - Ambiguous or cannot be understood

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LEGAL IMPLICATIONS

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  1. LEGAL IMPLICATIONS

  2. A Legal Observation • GERALD I. KATZ • ATTORNEY WITH KATZ & STONE, LLP • VIENNA, VIRGINIA • CSI’S 59TH (2006) ANNUAL SHOW AND CONVENTION • Why does a specification fail? • - Technically defective or flawed • - Ambiguous or cannot be • understood • Therefore, such a specification will • not produce the intended result and thus will not be legally enforceable

  3. Attitude of the Courts Specifications contain written sophisticated and technical information that requires specialized knowledge to understand, specifications are held to a higher standard Drawings are difficult for most people to understand and interpret

  4. Interpretation by the Courts Specifications are Contract Documents As legal documents, specifications are subject to ordinary rules of contract interpretation: • Agreement is examined to establish meaning intended • Specific provisions take precedence over general terms

  5. Interpretation by the Courts • Trade customs, practices and usages may be introduced • Practical interpretations of ambiguities and conflicts are considered • Ambiguities are interpreted against the party that caused the uncertainty to exist - drafter should have been more precise • Handwritten or typed insertions govern over pre-printed clauses

  6. Spearin Doctrine Principle: The Owner of a Project warrants to the Contractor that the Drawings and Specifications, prepare by the Architect and Consultants, sufficiently describes, details, and specifies the Work required UNITED STATES v. SPEARIN 248 US 132 (1918)

  7. Spearin Doctrine Implication: Contractor not responsible for consequences that result from defects in the Drawings and Specifications due to errors, omissions, discrepancies and mistakes

  8. Industry Standards When the wheels fall off … ... and the lawyers walk into the room … … standards will be the YARDSTICK

  9. MASTERFORMAT

  10. MasterFormat Developed by CSI Organizational structure for construction information Master list of numbers and titles

  11. MasterFormat • Divisions • 50 division format • Not organized around traditional subcontracts or construction trades • Follows logical groupings of work results • Sections • 6 digit numbers (some 8) • Section covers one portion of work results

  12. ANATOMY of a SPECIFICATION

  13. Specification Structure PART 1 – GENERAL Indicates non-tangible requirements of a product, material or equipment and administrative provisions for the Work PART 2 – PRODUCTS Indicates technical requirements, physical properties, performance and qualities for products, materials and equipment PART 3 – EXECUTION Indicates installation provisions and testing-inspection requirements

  14. PART 1 – GENERAL Summary Price and Payment Procedures References Administrative Requirements Submittals Quality Assurance Delivery, Storage, and Handling Field Conditions Warranty

  15. PART 2 – PRODUCTS • Owner-Furnished Products • Manufacturers • Description • Performance/Design Criteria • Operation • Materials • Fabrication • Mixes • Finishes • Accessories • Source Quality Control

  16. PART 3 – EXECUTION Installers Examination Preparation Erection / Installation / Application Repair Re-Installation Field Quality Control System Start-Up Adjusting Cleaning Closeout Activities Protection Maintenance Attachments

  17. Power of Specifications Specifications are powerful, if and only if YOUbelieve they are so YOUmake them so Which of these images best represent your specifications?

  18. Real Client and Customer THE OWNER

  19. Resources CONSTRUCTION SPECIFICATIONS Principles and Applications David J. Wyatt and Hans W. Meier CONSTRUCTION SPECIFICATION WRITING Principles and Procedures Harold J. Rosen and John R. Regener Jr.

  20. Resources CONSTRUCTION SPECIFICATIONS PRACTICE GUIDE The Construction Specifications Institute SECTIONFORMAT/PAGEFORMAT The Construction Specifications Institute

  21. D+D Specifiers Series Questions WALTER SCARBOROUGH CSI CCS CCCA SCIP AIA wscarborough@hbig.us 214.491.7385 Sponsored by

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