Specifying and Expecting the Impossible

Two tactics can be used when the defects section of AIA MasterSpec is incorporated in project specification. The first, excluding the requirements in the bid as impracticable, is considered to be too risky by contractors who fear that such exclusions may cause their bid not to be accepted. In today’s tight construction market, that may be true. But it’s also true that enforcement of the impracticable requirements could result in a loss instead of a profit on the job. Thus, bid exclusions should be a risk management decision.

The other tactic is using contract exclusions after the bid has been accepted. Listing the exclusions at this time gives the contractor a better opportunity to discuss the reasons for the exclusions with the design professional. Such discussions are unlikely at the bid stage.

As a last-ditch-effort, use the rationale for the legal theory of impossibility. This theory acknowledges that a contractor can’t, even if asked or agreed to, complete the impossible. The legal basis of impossibility is that the contract contains an implied condition that the specified performance will in fact be possible. The court provided this definition: “A thing is impossible in legal contemplation when it is not practicable; and a thing is impracticable when it can only be done at an excessive and unreasonable cost.” As discussed, AIA specifies and expects the impossible.

Whether any of these options are chosen, it’s essential for contractors to recognize impracticable specification requirements so they aren’t blindsided by them when it’s time to get paid.