The National Academies Press

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From page 59... ... 59 cases in both the federal and state courts that reinforce this principle, not only for defective specification claims, but also for differing site condition claims.274 Therefore, using contract language that says, in essence, that "this is a performance specification and contractor assumes all risk of meeting the required results," will likely not relieve the owner from liability if it uses a design specification and has, for all practical purposes, taken all discretion away from the contractor. However, if the owner uses the above language in the context of a pure performance specification, then a trier of fact will likely find that the contractor has taken all risk of performance. Read the entire page →

From page 59...

... 59 cases in both the federal and state courts that reinforce this principle, not only for defective specification claims, but also for differing site condition claims.274 Therefore, using contract language that says, in essence, that "this is a performance specification and contractor assumes all risk of meeting the required results," will likely not relieve the owner from liability if it uses a design specification and has, for all practical purposes, taken all discretion away from the contractor. However, if the owner uses the above language in the context of a pure performance specification, then a trier of fact will likely find that the contractor has taken all risk of performance.

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