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Court of Appeals Distinguishes "Design" from "Performance" Specs

The Court of Appeals for the 5th District examined the difference between "design" and"performance" specifications in connection with a project at the University of California, Merced.

Berkeley Cement, Inc.was awarded the low bid for the structural concrete work on the new Socia lSciences and Management Building. During the course of the project, various issues arose and the contractor ultimately submitted a request for equitable adjustment.

At trial, the University prevailed. On appeal, the contractor argued that the trial court improperly concluded that certain specifications were "performance"rather than "design" specifications.

The Court of Appeal disagreed that the specifications at issue were "design"specifications:

"Crucial elements required Berkeley’s ingenuity and expertise to achieve the expressed goal. For example, the specification set goals for strength, slump and shrinkage, leaving it to Berkeley’s discretion to determine how to meet those goals. Regarding placement of the concrete, the specifications directed Berkeley to take special precautions in hot weather, 'to prevent slump loss, rapid setting, and plastic shrinkage,' but left it to Berkeley to determine the means and methods to do so, while suggesting some possibilities. "

As a result, the Court of Appeal upheld the trial court's determination that the specifications at issue were "performance" specifications. To read the entire opinion, click here.