State agencies have increasingly turned to alternative contracting methods such as design-build and public-private partnerships to deliver highway construction projects.  As a result, the use of performance-based specifications has also increased.

To provide a better understanding of how these specifications function, the Transportation Research Board (TRB) recently released Legal Research Digest 61, which provides an overview of performance-based specifications, explores how they differ from traditional design or method-based specifications, and explains the risk allocation differences between them.  Particularly helpful is the report’s discussion of how courts have addressed disputes related to performance specifications in design-build contracts, including how courts have applied the Spearin doctrine, which generally posits that owners are unable to hold contractors responsible for consequences of following the owner’s specifications.

TRB’s report can be found here.

Thanks to Frank Liu for his assistance with this entry.