######## Chapter 3 

**3 - [Specifications]{.underline}**

3.0 [Overview]{.underline} (6/03)

> 3.1 [Types of Specifications and Risks]{.underline} (1/98)
>
> 3.1.1 [Design Specifications]{.underline} (1/98)
>
> 3.1.2 [Performance Specifications]{.underline} (1/98)
>
> 3.1.3 [Brand Name or Equal]{.underline} (1/98)
>
> 3.2 [Using Consultants to Prepare Specifications]{.underline} (1/98)
>
> 3.3 [Specifications for Equipment and Supplies]{.underline} (1/98)
>
> 3.4 [Specifications for Construction]{.underline} (1/98)
>
> 3.5 [Statements of Work for Services]{.underline} (1/98)

**3.0 OVERVIEW**

+-----------------------------------------------------------------------+
| **REQUIREMENT**                                                       |
+=======================================================================+
| § 8.c (1) of FTA Circular 4220.1E requires that all solicitations     |
| shall:                                                                |
|                                                                       |
| \(1\) Incorporate a clear and accurate description of the technical   |
| requirements for the material, product, or service to be procured.    |
| Such description shall not, in competitive procurements, contain      |
| features that unduly restrict competition. The description may        |
| include a statement of the qualitative nature of the material,        |
| product, or service to be procured and when necessary, shall set      |
| forth those minimum essential characteristics and standards to which  |
| it must conform if it is to satisfy its intended use. Detailed        |
| product specifications should be avoided if at all possible. When it  |
| is impractical or uneconomical to make a clear and accurate           |
| description of the technical requirements, a \"brand name or equal\"  |
| description may be used as a means to define the performance or other |
| salient characteristics of a procurement. The special features of the |
| named brand which must be met by offerors shall be clearly stated.    |
|                                                                       |
| § 15 of the Master Agreement states that:                             |
|                                                                       |
| > d\. [Exclusionary or Discriminatory Specifications]{.underline}.    |
| > Apart from inconsistent requirements imposed by Federal statute or  |
| > regulations, the Recipient agrees to comply with the requirements   |
| > of 49 U.S.C. § 5323(h)(2) by refraining from using any Federal      |
| > assistance awarded by FTA to support procurements using             |
| > exclusionary or discriminatory specifications.                      |
| >                                                                     |
| > e\. [Bus Seat Specifications]{.underline}. A State or local         |
| > government recipient may use specifications conforming with the     |
| > requirements of 49 U.S.C. § 5323(e) to acquire bus seats.           |
+-----------------------------------------------------------------------+

**DISCUSSION**

**As a recipient of public funds you will have to keep in mind that you
represent the government, whose objectives in spending taxpayers\' money
will always include, as one of its goals, the goal of full and open
competition. It is easy to lose sight of this under the pressure of
completing a project on time. Many programs in your domain have
political sensitivity and media visibility. The temptations will be
great to \"get something out now,\" and it will always be easier to
respond to the immediate pressure than to do a careful and thorough job
at the outset. But time taken here, in the careful research and drafting
of the specifications, will invariably reward you with a better product,
at a lower cost, and with far fewer claims and delays during the life of
the project. Another age-old problem in this area of drafting
specifications is the desire to push the state of the art to a new
level, to have the best possible system, regardless of cost. Government
organizations tend to be applauded for the visible quality of the things
they do, whether it\'s their services, or major transit systems. But
against these real-life pressures stands the Federal and State
Government policy to define the \"minimum needs\" and to avoid
specifications which might unduly restrict competition. We need to
remind ourselves that our industrial suppliers are also taxpayers whose
tax dollars are helping to finance this procurement; as such they are to
be given every opportunity to compete for the work they are helping to
finance.**

**Technical Specifications and Statements of Work must clearly describe
the products and services to be procured in terms which will permit full
and open competition and which will meet the buying agency\'s minimum
essential needs.**

**3.1 TYPES OF SPECIFICATIONS AND RISKS**

**DISCUSSION**

**Specifications may be very detailed in describing the product or work
to be done, or may simply require an end result, or may contain
combinations of these two approaches. There are different levels of
risks and responsibilities inherent in these different types of
specifications. As a general rule the more design details there are in
the specification, the more the buying agency becomes responsible for
the performance of the product. Conversely, the more the specification
describes the performance of the product instead of its design features,
the more responsible the contractor becomes for the end product. The
legal theory involved in these cases is the implied warranty of
specifications.** [^1] **Following is a discussion of the various types
of specifications and the risks inherent in each type.**

**3.1.1 [Design Specifications]{.underline}**

**DISCUSSION**

**Specifications detailing the manner or method of performance are often
treated as *design* specifications. Contrasted with these are
*performance* specifications, which leave the details of performance,
and the details of design, to the contractor\'s discretion. *Design*
specifications are those which set forth precise measurements,
tolerances, materials, in process and finished product tests, quality
control, inspection requirements, drawings and other specific
information. It is this *design* type of specification, dealing with the
details of the work, which the contractor is \"required to follow as one
would a road map,\" which gives rise to implied warranty. Under this
type of specification, the buying agency (as the author of the
specifications) will be held responsible for design and related
omissions, errors, and deficiencies in the specifications and
drawings.** [^2] **There is an implied warranty that the detailed
designs or processes will result in an end item which functions as
required. Conversely, there is no implied warranty where the
specification simply sets forth an objective or end result to be
achieved, and the contractor is free to select the means of
accomplishing the task, in which case he assumes responsibility for that
selection.** [^3] **In those cases where the specification contains both
design and performance requirements, it will depend on what portion of
the specification causes the contractor\'s difficulties, whether he has
discretion to choose how to do the work.** [^4]

**Specific situations working to relieve the contractor from end item
performance responsibility would include:**

-   **When the contractor is left no discretion or choice in the
    materials to be used.** [^5]

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-   **When specifications set forth dimensions and the item built to the
    dimensions cannot be used as anticipated because of those
    dimensions.** [^6]

-   When specifications define a method of performance or the particular
    manufacturing processes a contractor must follow (e.g., detailed
    procedures for pouring concrete, detailed soldering methods, etc.)
    [^7]

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-   **When specified equipment cannot be successfully used in performing
    the contract.** [^8]

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-   **When detailed specifications require performance contradictory to
    local codes or ordinances.**[^9]

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-   **When the specifications provide for alternate methods of
    performance, and the contractor selects a method from among
    alternatives in the specification, the contractor will not be liable
    if the alternative does not accomplish the desired results.** [^10]

**3.1.2 [Performance Specifications]{.underline}**

**DISCUSSION**

**Performance specifications dictate the performance of the end product,
not how the contractor will do the work. These are specifications which
give the contractor discretion in how to achieve the end result called
for by the contract.**[^11] **Performance specifications place the
greatest degree of responsibility on the contractor and represent the
lowest degree of legal risk (but not necessarily the lowest program
risk) to the buying agency. It must be said, however, that there are
valid reasons for specifying \"design\" type requirements within
performance specifications, as where standardization is needed, where
there is an opportunity to avoid duplication of design costs which have
already been incurred, etc.**

**As a general rule, when a performance-type specification is used, the
buying agency will not be liable for a contractor\'s increased costs in
performing the contract unless the performance specification embodies
requirements which are impossible to attain.** [^12]

It should also be noted that the fact that the buying agency specifies a
minimum requirement for some component or some aspect of performance
(e.g., \"at least 3 hp;\" \"no more than 2\" wide\") does not change a
performance specification into a design specification; i.e., the buying
agency is not warranting that an item which meets the minimum
requirement will perform properly when incorporated into the system. For
example:

-   **A provision that surfaces be at a certain specified minimum
    temperature when painted was not a warranty that satisfactory
    results would be obtained at that temperature.** [^13]

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-   **Where the agency specified a minimum of not less than 14-gauge
    steel it was not warranting that 14-gauge would meet performance
    requirements.** [^14]

**3.1.3 [Brand Name Or Equal]{.underline}**

##### DISCUSSION

These are specifications which require a particular manufacturer\'s
product, part number, or model. The specification may allow for an
\"equal\" product and should clearly set forth the salient physical and
functional characteristics of the brand name product. Under this type of
specification if the contractor uses the brand name product or an
approved \"equal,\" the buying agency assumes the responsibility for
proper performance (assuming the contractor used the product in the
proper way). If the contractor elects to manufacture an equal product
in-house, he will be responsible that the product performs equally with
the specified brand named product. The BPPM Section 2.4.2.2.1 contains
extensive guidance on the use of \"brand name or equal\" specifications.

2.  **USING CONSULTANTS TO PREPARE SPECIFICATIONS**

+-----------------------------------------------------------------------+
| #####                                                                 |
|                                                                       |
| ##### REQUIREMENT                                                     |
+-----------------------------------------------------------------------+
| § 8.a.(5) of the FTA Circular 4220.1E requires that grantees avoid    |
| situations known as \"organizational conflicts of interest.\" An      |
| organizational conflict of interest arises when a contractor, because |
| of other activities, relationships, or contracts, is unable or        |
| potentially unable, to render impartial assistance or advice to the   |
| grantee, or when a contractor\'s objectivity in performing the        |
| contract work is impaired, or when a contractor has an unfair         |
| competitive advantage.                                                |
+-----------------------------------------------------------------------+

**DISCUSSION**

**The FTA Circular envisions two distinct problems when using
consultants to prepare specifications or statements of work: (1) that
the consultant will be biased toward a particular product or firm
because he has business relationships with that firm or a financial
interest in the product, or (2) that the consultant will have an unfair
competitive advantage if he is allowed to compete for a product or
service which he helped to define in a specification or statement of
work. When a contractor is used to prepare or assist in the preparation
of specifications and statements of work, care must be taken to ensure
that the contractor will be completely unbiased in his decisions. Buying
agencies must ascertain that the contractor has no financial or
organizational relationship with a potential supplier which might
motivate him to slant a specification toward that supplier. With respect
to the unfair competitive advantage issue, contractors developing
specifications should not be allowed to compete on procurements for
which they prepared specifications.**

**Best Practices**

Contractors who are working on specifications to be used for competitive
procurements should be required to accept a \"Limitation on Future
Contracting\" provision in their contract for the
specification/consulting work which precludes them from bidding on the
resulting procurement. Further guidance may be found in the BPPM Section
2.4.2.2.2, \"Organizational Conflicts of Interest.\"

It is also advisable when using consultants to draft procurement
specifications to obtain a formal written certification with their
proposal which describes all of their past, present or planned
organizational, financial, contractual or other interests with
organizations whose products or services may be offered in response to
the procurement on which they will be consulting. Where there are such
interests identified by the contractor, the contractor should also be
required to describe why it believes that performance of the proposed
consulting contract can be accomplished in an impartial and objective
manner. An example of a certification requirement used by the Federal
Department of Transportation may be found in Appendix B.10. [^15]

**3.3 SPECIFICATIONS FOR EQUIPMENT AND SUPPLIES**

**DISCUSSION**

**Plans, drawings, specifications or purchase descriptions should state
only the minimum needs of the agency and describe the supplies in a
manner which will encourage maximum**

**competition, avoiding restrictive features which might restrict
offers.**

**Best Practices**

[Planning]{.underline} **-** A market survey should be conducted to
determine sources that offer products which meet the requirements.
Caution must be exercised to avoid disclosure of agency budgets or other
information which might give a supplier an unfair competitive advantage.
Descriptive literature from one prospective supplier cannot be used as
the sole basis for writing specifications. Determine what your essential
requirements are and separate these essentials from those which are
\"nice to have\" or desirable. In your research determine what the
state-of-the-art is and develop your specification within the state of
the art.

[Content]{.underline} -

-   A performance-type specification is generally preferable to a
    design-type specification (i.e., don\'t tell the contractor how to
    do the work but rather specify the end-item\'s performance). This is
    in keeping with a goal of maximum contractor responsibility and
    minimum risk to the buying agency. It may be necessary, however, to
    use design-type descriptions (as for components, tolerances, etc.)
    in certain situations, such as the need for standardization.

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-   The specification must set forth the minimum essential
    characteristics and standards required to satisfy the intended use
    (e.g., \"no more than 2\" wide;" \"at least 3 hp;" \"at least once
    per month.\")

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-   When \"brand names\" are being used for specific components, it may
    be advisable to include at least two brand names followed by the
    words \"or equal\". When so used, the specific features which must
    be met by offerors should be clearly stated. See BPPM Section
    2.4.2.2.1.

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-   The specification must not only describe the product but must also
    include reliability and quality assurance requirements (Quality
    Control Plan).

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-   Criteria for inspecting, testing and accepting the product will have
    to be included in the specification.

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-   Preservation, packaging, packing, and marking requirements will also
    have to be addressed.

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-   Include a Contract Data Requirements List (CDRL) to tell the
    contractor what documentation is required, when it is to be
    delivered, and whether the documents need approval (e.g., drawings,
    maintenance recommendations, master parts list, shipping/ handling/
    storage procedures, etc.) When buying major systems be sure to\
    \
    \
    require a comprehensive spare parts data package as a deliverable
    item. This will be necessary for competing the procurement of spare
    parts after the initial complement of spares has been used.

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-   Is training needed for users and those who must maintain the
    equipment? Are maintenance manuals needed?

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-   Do not include contractual terms and conditions, such as, cost/price
    information, warranties, delivery information, etc.

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-   Write sentences which are short, concise and simple.

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-   Use decimals instead of fractions.

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-   Don\'t use open-ended requirements such as \"as directed,\"
    \"satisfactory to,\" etc.

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-   Do not use unfamiliar words, colloquialisms or words which are
    ambiguous.

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-   When you have finished, read your specification and ask yourself,
    \"Is there any way that anyone could misinterpret this statement?\"

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-   You may wish to consider standardizing your Agency\'s approach to
    the format and content of specifications and statements of work.
    Appendix B.2 provides a *Specification/ Scope of Service Guide*
    which contains guidelines and recommendations for developing
    specifications, data sheets, and statements of work for supplies,
    equipment and services. [^16]

**3.4 SPECIFICATIONS FOR CONSTRUCTION**

**DISCUSSION**

**The technical provisions of construction specifications must be in
sufficient detail so that, when used with the applicable drawings and
the documents incorporated by reference, bids can be prepared on a fair
and competitive basis. In contracting with public funds the essential
objective in drafting specifications is to satisfy the fundamental
public policy requiring full and open competition. This objective is not
only a Federal requirement, but most states and local governments have
similar statutes.** [^17]

##### Best Practices

[Contracting books, manuals, etc.]{.underline} - Volumes have been
written about the forbidding and exotic world of construction
contracting, and we would like to begin by advising you to obtain some
essential roadmaps for this journey, beginning with a comprehensive text
entitled, appropriately, *Construction Contracting*. [^18] We would also
recommend you obtain a copy of the *Construction Contract Administration
Manual* (which is devoted entirely to construction contracting) produced
by a public agency working with FTA grant funds. [^19]

[Content]{.underline} **-**

-   Materials, equipment, components or systems should be described,
    where possible, by reference to documents generally known to
    industry. Such documents include Federal, military, or
    nationally-recognized industry, and technical society specifications
    and standards. The standards which best represent no more and no
    less than the buying agency\'s minimum needs should be selected for
    incorporation by reference into the construction specifications.

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-   If you employ an A/E firm to develop your specifications be sure
    they are warned against the use of proprietary specifications, i.e.,
    writing a specification \"around\" a particular manufacturer\'s
    product, effectively precluding competition. This is a common
    practice among A/E firms, especially when a particular product has a
    proven track record, but the practice conflicts with the objective
    of full and open competition in public contracting.

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-   Keep the specifications as simple as possible**.** One court used
    these words:

> \"A contractor should not be required to wade through a maze of
> numbers, catalogues, cross-reference tables and other data resembling
> cross-word\
> puzzles in order to find out what the government requires in an
> invitation for bids.\" [^20]

-   You may want to consider using an \"Order of Precedence\" clause
    telling bidders which bid documents are to be relied on in the event
    of a conflict within the documents. You should choose a clause that
    places the most important part of the bid package in the most
    important position. For example, if you are certain that the
    drawings are correct, your clause could give the drawings priority
    over the specification.

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-   Complex specifications are best discussed with bidders at a pre-bid
    conference but be careful to advise bidders that none of the
    explanations at the conference will qualify the terms of the
    specifications, which can only be modified by written amendments.

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-   Be sure to review carefully FTA Circular 4220 (latest version) and
    the Master Agreement (MA) for requirements which may affect your
    specifications. Examples would include:

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-   Preference for recycled products. [^21]

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-   Use of metric system. [^22]

-   Seismic safety for construction projects. [^23]

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-   Environmental requirements. [^24]

-   Requirements of the Americans with Disabilities Act. [^25]

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-   Describe all of the contractor\'s obligations as far as meeting
    codes and standards that are applicable to the project (local,
    State, and Federal).

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-   Review the suggestions above for Supplies and Equipment, Section
    3.3, for applicability to construction specifications.

3.5 STATEMENTS OF WORK FOR SERVICES

**DISCUSSION**

A statement of work, rather than a specification, is used for services
contracts. A statement of work defines the work required of a
contractor, either to design the equipment to be procured or to provide
services which are not related to the procurement of hardware.

##### Best Practices

Statements of work should include the following elements:

-   When buying services on a \"level-of-effort\" basis, i.e., when
    specifying the number of labor hours to be furnished by the
    contractor, be sure to define the labor categories/hours for each
    and define the minimum years of experience and licensing
    requirements (CPA, PE, etc.) for each.

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-   Include, if applicable, a detailed list of all data, property and
    services which will be provided to the contractor by your Agency for
    his use in performing the contract.

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-   Detail all tasks the contractor must perform, and specify
    coordination requirements.

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-   Specify the data that must be submitted for approval. Also define
    the schedules for initial submission and the review/approval time
    required.

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-   Describe all the standards the contractor must fulfill, including
    Federal, State, and local standards that are applicable to the
    project.

**Acronyms**

ASBCA - Armed Services Board of Contract Appeals

BCA - Board of Contract Appeals

DOTCAB - Department of Transportation Contract Appeals Board

ENGBCA - United States Army Corps of Engineers Board of Contract Appeals

FTA MA - Federal Transit Administration Master Agreement

GSBCA - General Services Administration Board of Contract Appeals

MPC - American Bar Association Model Procurement Code for State and
Local Government

[^1]: United States v. Spearin, 248 U.S. 132 (1918).

[^2]: **^2^** - Monitor Plastics Co., ASBCA 14447, 72-2 BCA ¶ 9626 at
    44,971.

[^3]: \- J. L. Simmons Co. V. United States, 188 Ct. Cl. 684, 412 F.d.
    1360 (1969) at 689.

[^4]: **^4^** - Engineering Technology Consultants, ASBCA 43600, 92-3
    BCA ¶ 25,133, recons. Denied, 93-1 BCA ¶ 25,507.

[^5]: **^5^** - J. L. Simmons Co., id.

    **^6^** - Harrison Western/Franki-Denys, Inc., ENGBCA 5523, 92-1 BCA
    ¶ 24,582.

[^6]:

[^7]: \- Hobbs Constr. & Dev., Inc., ASBCA 34890, 91-2 BCA ¶ 23,755.

[^8]: \- Maitland Bros. Co., ASBCA 23849, 83-1 BCA ¶ 16,434.

[^9]: \- Huber, Hunt & Nichols, Inc., GSBCA 4311, 75-2 BCA ¶ 11,457.

[^10]: Southern Paving Corp., AGBCA 74-103, 77-2 BCA ¶ 12,813 at 62,363.

[^11]: Aleutian Constructors v. United States, 24 Cl. Ct. 372 (1991).

[^12]: Intercontinental Mfg. Co. V. United States, 4 Cl. Ct. 591 (1984)
    at 595.

[^13]: \- Ahern Painting Contractors, Inc., DOTCAB 67-7, 68-1 BCA ¶
    6949.

[^14]: \- Inlet Co., ASBCA 9095, 1964 BCA ¶ 4093.

[^15]: \- Transportation Acquisition Regulation (TAR) Clause 1252.209-71
    DISCLOSURE OF CONFLICTS OF INTEREST (Oct 1994).

[^16]: \- Prepared by Office of Procurement, The Metropolitan Transit
    Authority, Harris County, Texas, dated January 1987.

[^17]: \- MPC § 3-203.

[^18]: \- The George Washington University\'s National Law Center\'s
    Government Contracts Program has published a number of excellent
    books dealing with Government contracting. One such book is
    *Construction Contracting* (The George Washington University:
    Washington, D. C., 1991). For a complete catalogue of
    contracting-related texts contact: The GW Bookstore, 800 21st. St.,
    N.W., Washington, D. C. 20052, Phone: (202)994-6870, Fax:
    (202)296-9445,
    [http://www.gwu.bkstr.com](http://www.gwu.bkstr.com/).

[^19]: \- *Construction Contract Administration Manual*, Port Authority
    of Allegheny County, Procurement Department, 2235 Beaver Avenue,
    Pittsburgh, PA 15233-1080, Phone: (412)237-7000, FAX: (412)237-7101.
    This Manual contains many worthwhile things, such as procedures for
    bid document preparation, bidding, contract award, and contract
    administration; General Contract Provisions; a multitude of forms
    for reporting, evaluating, administering, etc.

[^20]: \- Gorn Corp. V. U. S., 424 F 2d 588 (Ct. Cl. 1970), noted at
    592.

[^21]: \- FTA MA(12) § 15g.

[^22]: \- FTA MA(12) § 30.

[^23]: \- FTA MA(12) § 23e.

[^24]: \- FTA MA(12) § 25.

[^25]: \- FTA MA(12) § 12g.