No element of a construction contract is more fundamental than the specifications; they provide a detailed description of the work requirements. Yet, it is surprising how little thought and effort might go into the assembly of the specifications. Many standard specifications are reused as a matter of course. Specs provided by manufacturers are routinely incorporated into contracts with no attention to coordination with other contract provisions. The specifications in any given contract may be nothing more than a “cut-and-paste” job.

This was illustrated on a recent project for replacement of a roof. The contract, quite typically, required the contractor to furnish the project owner with a manufacturer’s standard 20-year warranty. Yet, the specifications, which had been written around and could only be met by one manufacturer, caused a problem. The specs called for the roof insulation to be attached to the roof deck in a manner that negated the manufacturer’s warranty. If the contractor complied with the specifications, it could not provide the required warranty.

Other cases this week involved a contractor’s ability to claim LLC status and the ability to enforce payment bond rights in the face of an arbitration clause. The contractor was recognized as a limited liability company even though that designation never appeared in the construction contract. And, the arbitration clause in a subcontract was trumped by the subcontractor’s right to litigate against a public works payment bond.