One of the three essential elements of any construction contract is a complete description of the work that the contractor is required to do. In most construction contracts, this is accomplished by providing the contractor with detailed construction drawings and specifications. Often, however, disputes arise as a result of the information contained in construction drawings and specifications being incompleteor ambiguous.
Even when specifications are complete and there is no ambiguity asto what the contractor is required to do and the contractor follows the specifications provided to it to the letter, disputes can arise if the end product doesn't perform as expected or required. This happens when the specification fails to properly detail the steps requiredto be taken to do the work in the appropriate manner.
Performance specifications, however, avoid the problems that can arise from a faulty or defective specification as performance specifications describe the results that the contractor is to achieve as opposed to the methodology to be used to construct the work to achieve those results.
Building codes often use performance specifications to dictate theresults to be achieved in the construction of a building. For instance, the Alberta Building Code provides that a building envelope is tobe constructed so that it is water tight1. Obviously if this type ofspecification is used, it is up to the contractor doing the work to determine how the result is to be achieved, which transfers the design responsibility to the contractor for that element of the work.
While there is merit in using performance specifications, it is not appropriate to do so in every situation. The nature of the work andthe sophistication of the party performing the work must be considered first. It is not appropriate to use performance specifications if it is intended to incorporate a new design or methodology for achieving the desired result or if the work to be done is not the usual typeof work performed by the contractor. In these circumstances, it is best to set out explicit directions on how to do the work in the specifications.
Performance specifications, however, are appropriate and most often used when the contractor has specific expertise in doing the work. For instance, speciality equipment manufacturers are often required to provide equipment that meets the purchaser's performance requirement for the equipment being purchased. Likewise, speciality trade contractors, even without knowing it, are actually doing work according toa performance specification. The electrician hired to wire a new house under construction is seldom provided with any specifications for the work it is to do. It is up to the electrician to ensure that he wires the house in accordance with the applicable code and so that it provides the electrical outlets and lighting usually required by a homeowner. It is only when the homeowner requires something specific ordifferent than the norm that a performance specification will be inappropriate.
The use of performance specifications is very useful in defining what a contractor is to provide but care must be exercised to determine if and when it is appropriate to use performance specifications.
Footnote 1 Alberta Building Code, subsection 5.6.1.1
The content of this article is intended to provide a general guideto the subject matter. Specialist advice should be sought about yourspecific circumstances.
Mr Robert Simpson
Fraser Milner Casgrain LLP
PO Box 100
First Canadian Place
100 King Street West
Toronto
Ontario
M5X 1B2
CANADA
E-mail: [email protected]
URL: www.fmc-law.com
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