Chapter 4 - § 4.7 • SPECIFICATIONS

• Jurisdiction: Colorado

§ 4.7 • SPECIFICATIONS

The Colorado Procurement Code defines "specifications" as "any description of the physical or functional characteristics or of the nature of a . . . construction item."¹¹³ The Colorado Procurement Rules identify several different types of allowable specifications. First, the state and its agencies may use brand name specifications if only the brand name or items will satisfy the state's need.¹¹⁴ In using brand name specifications, the procurement officer must identify sources for the brand name or items and seek to achieve as much competition as practicable.¹¹⁵ Second, brand name or equal specifications may be used when it is in the best interest of the state and when the items are best described by such specifications.¹¹⁶ Finally, the state and its agencies may use qualified products lists when testing and examination of construction items prior to issuance of solicitations is desirable or necessary to satisfy the state's needs.¹¹⁷ Qualified products lists may be created by sending written solicitations to a representative group of potential suppliers and requesting submission of construction items for testing and examination.¹¹⁸

Use of specifications carries certain pitfalls. For instance, in United States v. Spearin, the U.S. Supreme Court acknowledged the existence of an implied warranty of specifications, also known as the Spearin doctrine.¹¹⁹ Pursuant to the implied warranty of specifications, specifications contain an implied warranty that if they are followed, acceptable results will be produced.¹²⁰ In 2004, the Colorado Supreme Court finally acknowledged the implied warranty of specifications in BRW, Inc. v. Dufficy & Sons, Inc.¹²¹ The implied warranty of specifications attaches to owner-furnished specifications, even when owners do not prepare them.¹²² Nonetheless, the implied warranty of specifications only applies to "design specifications."¹²³ "Design specifications set forth in detail the materials to be employed and the manner in which the work is to be performed."¹²⁴ On the other hand, "performance specifications simply set forth an objective or end result to be achieved, and the contractor may select the means of accomplishing the task."¹²⁵

Specifications issued by the state and its agencies also may be subject to the implied warranty of specified alternatives. Federal courts note that "when the government provides alternative methods by which a project may be completed[,] there is an implied warranty that either...