Use of Specifications in Federal Contracts: Is The Cure Worse than the Disease?

• Author: by Major Gary L. Hopkins and Major Riggs L. Wilks, Jr.
• Pages: 02

la thzs article, the authors discuss the uan0u.s types ofspec.$?cations used ingovernment contmets, and their relative me?-its and demerits. Detazled spee$zeations, for ezample, lzmit a contractor's discretion, giving the government mo7e control overdestgn and manufacturing pmeesses, while functional spec& eattons marely direct a contractor to achieve a celtoin result, leaving it to him to determine the manner of doing so.

*The upmmn8 and emelusmns presented ~n this article me those of the authors and do nor nece568nly represent the iiews of The Judge Adroeate General's School. rhe Department of the Army. or m y other governmental agency.

"JAGC. U 3 A m y Chief. Contract Lax D~vinan, The Judge Advocate Gen-erah School. Charlortesnlle. Vlrpma. 1979 to present Instructor and senior inSfmctOr. Contract Lau Dlrlslan. TJ.4GS.4. 19i61979 B.A., 1967. andJ D.. 1970. University of Oklahoma. LL.11 , 1975, George V'ashmgron Knwenity. S.J.D candidate, 1979. Knlier~ity of Vlrenla. Graduate, 24th Judge Advocate Officer Advanced (Graduate) Course. 1976. lember of the Bars of Oklahoma. the United Stares Court ofhlllitary Appeala, the United Srstee Court of Clanni. and the United Stater Supreme Court

Major Hapkins id eo-author. uith Lieutenant Colonel Raberr 11 Nutt. of The

Pub. Cont. L J 169 !1975J: various book i e v ~ e ~ b , and seieral shon srticles on

confrscr law topics published m The Army Lawyer

'**JAGC. U.S Army Senior InstrUctOr, Contract Lan Divman. The Judpe Advocate Generays School, Charlartesrille, Virgrnia 1979 to present. Insfr~~tor, 1977-78. B A., 1866, Tnnity University ofTexae. J D.. 1871, St. Mary's Schoolof Law Sen Antomo. Texas Graduate. 26th Judge Advocate Officer Advanced GraduateJ Course, 1977 Member of the Bare of Texas. the United States Courrof hlll.tan. Appeals. rhe United Stares Army Caurt of 3Iillfary Revleu. and the United States Supreme Coun

hlqor \%'ilks is the author of Protests Against Amard Aecordi,q io theFederal Acpursfzon Act. A Paper Lzon. The Arm), Law)er 11 (July 1978J

'

.

Cse of detotled specifteations has been attacked in recent years. It is argued by some that such speegieattons precent contraclors from using the latest technology, 01 from substitv,t-tng commercially avadable products fofor specgied ones. The gob. emment may in such eases spend more than mcessary far itsgoods and seniees. Functional spec?ficahons, ?t is said, can avoid these problems

The authors conclude thatproblems encountered uithdetailed specifications are often based upon a lack ofunderstandzng ofthe purposes of such specificatcons In their proper place, such as weapons manufacture, detailed speezfieattons are mom deslmbie thanfunetzona! o n m The ie~erse

18 ltkely 10 be trve for procurement of typemntem or automobiles

The authors recommend that e!eorerguidanee on selection of spee$ieatians be d e asoilable to gol-ernment contracting per-sonnel, and that where appropriate discretion to make swch selection be given them as xell.

1. INTRODUCTION[Tlake B three-year old buck goat and tie him up within doors for three days without food. On the fourth day give him fern to eat and nothing else. When he shall have eaten this for two days, on the night follouing enelme him in a cask perforated at the bottom under which holes place another sound vessel in which thou wilt collect his urine. Having in this manner for two or three nights sufficiently collected this, turn out the buckand temper thine instruments in thia urine. Iron instrument8 are also tempered in the urine of a young red-hawed boy harder than in simple water.'

   Although this rather detailed instruction for tempering iron, which waa formulated in 1000 A.D. by a medieval Benedictine monk, is not widely called for in steel producing circles today, it illustrates the fact that man has made efforts for many centuries to describe methods for accomplishing tasks, manufacturing products. or rendering sewicee.

   1 James R' Flanagan, Tho Function ofSpecit cnfinos (19691 (feehmca! report) 18

   19801 USE OF SPECIFICATIONS

   Any reasonable transaction between a buyer and seller requires the buyer to describe his needs in a sufficiently precise manner to enable the seller to furnish the required item or senice. Such descriptions many bevery brief, such as, "I need a loaf of rye bread", or they may be very complex, such as a government specification of 40,000 wards to describe a computer package. In either instance one requirement is constant-the description must be sufficiently complete and accurate to permit the seller ta respond adequately. A good expression of this requirement is found in the Report of the Cammiasion on Government Rocurement.

   Effective acquisition requires , , . from the outset. . . that the full cantext oftheuser's need be clearlyunderstood. Theabsence of such understanding increases the total cast of procurement and inhibits the ability of the user to perform effectively?

   A well-drafted specification is an invaluable tool in any acquisition.

   Specifications are a part of almost every buy-sell operation

   . . . [Specifications permit1 the buyer [to1 refer to [them] to establish what he expect8 ta receive and the basis on which he will accept the product. The seller can refer to specifications with each order, negating the need to write new and elaborate descriptive supporting documents each time he makes a delivery. The 'specification' thus defines the responsibilities of both buyer and seller.3

   In recent years the use of such specifications has come under severe criticism and numerous proposals to eliminate or limit their use have been made. This paper uill examine the current law related to the use of detailed specifications. Additionally, it will analyze two major proposals for change and suggest alternative comes of action.

   11. DEFINITIONS, SPECIFICATION TYPES AND BASIC CONCEPTS

   The vast majority [ofindindualsl would gain as much fromwiser

   3 Repon of the Commtsszon on Gooemment Proeurrrnent 15 (19121

   a Natmnal Academy of Sciences. Repo" on .Malenola and P~oeeis

   Spee?fzcatzans

   and Standards 13 (1977) [hereinafter refelred to as the Katmal Academy Re-PO*].

   spending as from increased earning. Important as the art of spending is, we have developed less sldll in its practice than in the practice of making money . . . To spend money is easy, to spend it well is hard.'

   The importance of speciiications in the contracting process cannot beoveremphasized because they are one of the means used to insure wise expenditure of public funds.

   The specification may be called the basis for [acquisition] far it controls the spending of money. It is a technical annex to the contract and dves the contracting officer and the contractor the neeesswrequirements, quality assuranceprovisions, and preparation for delivery requirements to enter into a contract. Once the contract is in effect the speciiication becomes a legal and binding element of that agreement.s

   Everyone connected with the acquisition process should understand what specifications are and how they are used.

   The definition of specification varies in difIerent contexts. To one person it may signify delivery requirements, to another the term may relate to a description of an item or service and yet a third might think of the term as relating to models or samples. The Commission on Government Rocurement in 1973 defined specifications as a description of

   essential technical requirements for materials, products, or services. They specify the minimum requirements for quality and construction of materials and equipment necessary to an acceptable product.'

   The Federal Procurement Regulation describes specification as

   a clear and accurate description of the technical requirement8 far B material, product, or service, including the procedure by

   ' Mitehell. ThheBachmardA~qiSpendrng.~Monoy,

   Amer. Eeon Rev (June 1912)

   U S. Amy Logimes Manngernenr Center. Document on Spee~/lealxoa wntmg The Amy Loglsties Management Center LS located sf Fort Lee. Vrgma.

   3 Repmi ojthe Commrrsion on Govirnment Pmcurement 18 (1973).

   which it will be determined that the requirementa have been met. Speeidcations for items or materials contain also preservation, packaging, pacldng, and marldng requirements.'

   Other definitions of specifications abound. However, they are essentially the same.

   In federal contracting there are two broad categories of specitications: (a) standard specifteations used by many agencies for similar requirements and (b) specifications prepared by a particular activity or user to meet a need not covered in a standard speci6cation. The firat category of specifications is made up of very precise documents that are highly coordinated before issuance. The second category, locally prepared specifications, may amount to only a short purehase description' of the item or service to be purchased.

   Standard or prepared specifications are further broken dom into fou distinct categories or tmes: (a) federal specifications, (b) interim federal specifications, (c) military specifications, and (d) departmental speeid-cations.

   A federal specification is one which covers "those materials, pmducts, or services, used by two or more Federal agencies (at le& one of which is a civil agency), or new item of potential general application, pmmul-gated by the General Services Administration and mandatory for we by all executive agencies.'*

   ' FedeialProeurement Re&viation 5 1-1.305, 41 C.F.R. I 1-1.805 (1Y781, 8U Fed. Reg 16,110 (1866)

   [hereinafter cited 89 FPRI.

   A pvrehaie description has been deseribed as a deacription of an item or service that aeevrately renefu the need8 oi the government while awlding unduly restrictive requirement8 which tend to limit eampetltm withavf satiafying a peal need. Hearings on the Federal Acquieition Aet of 1977 Before the Subeomm. on Federal Spending Practices and Open Government oi the Comm. on Govern-mental Affairs, United States Senate, 95th Cong., 1st Sess. 10: (1977). TheFederal Property Management...