Strategies for Implementing Performance Specifications: Guide for Executives and Project Managers (2013) / Chapter Skim
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39 The guidance and recommendations in this document primarily stem from best practices and lessons learned. They are based on a review of published reports, guidance documents, and contracts and specifi cations, as well as discussions with subject matter experts from agencies and industry.
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40 STRATEGIES FOR IMPLEMENTING PERFORMANCE SPECIFICATIONS: GUIDE FOR EXECUTIVES AND PROJECT MANAGERS DESIGN VERSUS PERFORMANCE SPECIFICATIONS Whether a contractor's performance is governed by a design (i.e., prescriptive or method) or by a performance specification is critical to determining liability for project defects.
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41 STRATEGIES FOR IMPLEMENTING PERFORMANCE SPECIFICATIONS: GUIDE FOR EXECUTIVES AND PROJECT MANAGERS well above the minimum tip elevation. Assume that the owner and contractor agree that the solution is to prejet to within 5 ft of the minimum tip elevation.
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42 STRATEGIES FOR IMPLEMENTING PERFORMANCE SPECIFICATIONS: GUIDE FOR EXECUTIVES AND PROJECT MANAGERS These cases involved design-build delivery, an approach that commonly assumes that control and liability for design is shifted from the owner to the contractor. In reality, design-build or design-bid-build performance specifications may contain a mix of design requirements (or constraints)
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43 STRATEGIES FOR IMPLEMENTING PERFORMANCE SPECIFICATIONS: GUIDE FOR EXECUTIVES AND PROJECT MANAGERS The argument is that by accepting a performance specification, the contractor has represented to the owner that the specifications are attainable and subject to neither defense. However, courts have considered this matter more precisely and have evaluated (a)
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44 STRATEGIES FOR IMPLEMENTING PERFORMANCE SPECIFICATIONS: GUIDE FOR EXECUTIVES AND PROJECT MANAGERS court reasoned that the specifications, although impossible to meet, were negotiated by the parties at arm's length. Therefore, the owner was totally within its rights in refusing a product that did not meet all of its bargained-for specifications.
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