ACPA Concrete Pavement Progress Quarter 3 2020

Concrete Pavement Progress www.acpa.org 22 C O N S T R U C T I O N L A W performance or design criteria provided in the contract, the contractor is not responsible for the costs to repair any failures. In other words, in order to give effect to the design apportionment specification, there is only one reasonable interpretation of the contract: the contractor is only respon- sible for a failure if the failure was the result of defects in the contractor’s workmanship. To hold otherwise would render the design apportionment specification meaningless. The repair/warranty provisions do not disclaim the responsibility of de- sign either, whether it is laid out in the contract, as above, or whether it is based upon the implied warranty of design. An Owner can only disclaim its implied warranty of plans and specifications if it included contract language that clearly alerted contractors that the design may contain substantive flaws. See White v. Edsall, 296 F.3d 1081, 1086 (Fed. Cir. 2002) (holding that an effective disclaimer must “clearly alert the contractor that the design may contain substantive flaws”); see also U.S. v. Spearin., 248 U.S. 132, 136 (1918) (“The implied warranty [of plans and specifications] is not overcome by the general clauses requiring the contractor to examine the site, to check the plans, and to assume responsibility for the work until completion and acceptance. ”) (emphasis added). As explained in White v. Edsall, 296 F.3d at 1086, “[o]nly express and specific disclaimers suffice to overcome the implied warranty that accompanies design specifications.” In White v. Edsall, the Army authored the plans and specifications through its architects. Id. at 1085. The Army included a disclaimer on one of the project drawings, requiring the contractor to verify the details of the canopy door design. Id. In ruling that the disclaimer did not shift the risk of a design flaw to the contractor, the court explained that the disclaimer did “not clearly alert the contractor that the design may contain substantive flaws” and “did not obligate [the contractor] to determine whether the Government’s design would work for its intended purpose.” Id. at 1086. In addition, the court explained that “[t]he Army certainly could have drafted a contract and specifications that shifted the risk of design defects, but the disclaimer . . . is not specific enough to shift such risk to [the contractor].” Id. For important public policy reasons, it is legally questionable whether an owner could have disclaimed its implied warranty of design with any language. In W.H. Lyman Const. Co. v. Village of Gurnee, 403 N.E.2d 1325, 1332 (Ill. Ct. App. 1980), the municipal owner provided contractors with detailed plans and specifications, and also included a disclaimer that neither the owner nor its engineer assumed any responsibility for meeting the infiltration requirement of the contract. In ruling that the disclaimer did not shift the risk of design defects the contractor, the court held: We construe this provision as an impermissible attempt on the part of the [owner] to shift the responsibility for the sufficiency and adequacy of the plans to the contractor, without providing the contractor the corresponding benefit of having something to say about the plans which he is strictly bound to follow. The contractor’s duty is to perform his part of the contract in a workmanlike manner, not to evaluate the suitability of the specifications or, in the language of Spearin, “to pass upon their adequacy to accomplish the purpose in view.” Id. (citing U.S. v. Spearin, 248 U.S. 132, 137 (1918)) (emphasis added). The court further explained: » continued from page 21