How Does the Spearin Doctrine Apply in Design-Build?

Spearin v. US was decided by the Supreme Court in 1918, an ancient case by legal precedent standards.  The case stands for the proposition that the owner warrants the sufficiency of the plans and specifications provided to the contractor.  In the many years since Spearin was decided, it has been cited 1929 times.  Through this case law, the courts have essentially created a “strict liability” standard for owners, which means that despite the fact that owners typically neither design nor construct the building, the owner becomes responsible to the contractor for problems associated with the design.  Of course, the owner can look to the designer for responsibility for these problems, but the designer is only responsible for problems that rise to the level of negligence, and practically, the owner can only expect that the designer will contribute its terribly expensive and woefully under insured professional liability policy.  This situation is what DBIA has termed the “liability gap,” and the “elimination” of the liability gap is one of the reasons touted by many for the use of design-build. 

However, Spearin is still alive and kicking in the design-build world.  In fact, in the decision denying the summary judgment in the K-Con case cited above (the denial of the summary judgment is K-Con Build. Systems, Inc., v. US, 97 Fed. Cl. 41 (2011)), the court noted that even in design-build projects, owners are responsible for any design or prescriptive specifications provided to the design-builder.   “There is no question that “[w]hen the Government provides a contractor with design specifications, such that the contractor is bound by contract to build according to the specifications,” a contractor that fully complies with the specifications is “not responsible for the consequences of defects in the specified design.” White v. Edsall Constr. Co., 296 F.3d 1081, 1084–85 (Fed.Cir.2002) (citing United States v. Spearin, 248 U.S. 132, 136, 39 S.Ct. 59, 63 L.Ed. 166 (1918))” 

That’s serious longevity for such an old case.    Owners need to be careful, then of the use of prescriptive specifications.  Clearly, it is a fine line that owners have to balance.  On the one hand, if an owner knows that it will only accept one solution, or if it has regulatory compliance issues or other limitations on its design, then a prescriptive specification is necessary.  In fact, it is the rare design-build project that has no prescriptive requirements.  However, owners should try when possible to convert what it perceives as a prescriptive need to a performance requirement.  I often joke in my classes that owners need to wrest their cold dead hands off the control of the design of the project, but the benefits have a huge impact on the project.  First, the owner shifts the risk of compliance to the design-builder.  Second, the owner allows the design-builder room to innovate and create a cost effective solution. 

Owners should focus on end results, rather than control.  After all, it is the end result that matters, right?