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ON THE MOVE ALLISON COLANTUONI APPOINTED TO EXECUTIVE COMMITTEE AT MASER CONSULTING Allison Colantuoni, PHR, SHRM-CP has been appointed as a member of the executive committee at Maser Consulting PA (Hot Firm #13 for 2017). Headquartered in Red Bank, New Jersey, Maser Consulting is a multidiscipline consulting and engineering design firm with offices nationwide. Colantuoni is the director of human resources and principal of the firm. Until now, Maser Consulting’s seven-member executive committee consisted of the chairman/CEO, president/ COO, executive vice president/CAO, and five senior principal/division directors. Colantuoni is the first woman committee member in the firm’s history.

“Allison’s long-term leadership and dedication to the company been an asset to every employee in the firm,” stated Richard Maser, chairman/CEO of Maser Consulting. “Her experience and insights will provide an invaluable dimension to our executive team and we are excited she will be joining us in this capacity.” Colantuoni’s dedication to creating and maintaining a positive workplace, is evidenced by the firm’s consistent placement on NJBiz ’s Best Places to Work in New Jersey list and the Zweig Group’s Best Firms to Work For. Most recently, she was recognized as one of the Top 25 Leading Women Intrapreneurs by Leading Women Entrepreneurs.

Colantuoni has been with the firm since 1999 when she initiated the human resources department and has seen the firm grow from less than 100 to nowmore than 700 employees in 23 offices nationwide. During that time, she was instrumental in improving the firm’s cultural experience by developing numerous personal and professional development opportunities for employees including mentorship and coaching programs, educational opportunities, ongoing benefit program improvements, formalized Corporate Health and Safety Program, and co-founded the Maser Women’s Organization that advocates educating, engaging and empowering women throughout the firm.

DUTY TO INQUIRE. Despite the government’s warranty, a bidder with knowledge of design defects cannot remain silent, hoping to make a claim under the Spearin Doctrine. The courts have held that the implied warranty does not elimi- nate the contractor’s duty to investigate or inquire about a “patent” (or obvious) ambiguity, inconsistency, or mistake when the contractor recognized or should have recognized an error in the specifications or drawings. This duty re- quires contractors to clarify patent ambiguities, but does not require them “to ferret out hidden or subtle errors in the specifications,” one court stated. “Contractors are not expected to exercise clairvoyance in spotting hidden ambi- guities in the bid documents, and they are protected if they innocently construe in their own favor an ambiguity equal- ly susceptible to another construction,” that court said. PERFORMANCE SPECIFICATIONS. Courts often distinguish between design specifications and performance specifications. The distinction is important because the Spearin implied war- ranty doctrine does not extend to performance specifica- tions which “merely set forth an objective without speci- fying the method of obtaining the objective.” If the defect is in design specifications, however, the contractor must fully comply with – and follow – the design specifications, although faulty, to receive the protections of the Spearin implied warranty. In today’s era of design-build and government projects where the public owner provides “bridging documents,” consisting of preliminary outline specifications and partial design, the Spearin warranty would still apply to the extent that the design-builder is required to use faulty information, even if only preliminary. For this reason, public owners need to understand that they do not completely shed all design risk by contracting for design- build if there are specified design criteria upon which the design-builder is to rely. So, the next time you hear someone mention the Spearin Doctrine, you can tell them the sad story of George Spearin, and how it took him 12 years of litigation, all the way to the U.S. Supreme Court, to get his money! WILLIAM QUATMAN, Esq., is general counsel and senior vice president at Burns & McDonnell Engineering Co. He can be reached at bquatman@burnsmcd.com.

WILLIAM QUATMAN, from page 9

THE SPEARIN DOCTRINE AND THE IMPLIED WARRANTY. In its landmark decision, the U.S. Supreme Court held in December 1918 (more than 12 years after the sewer line broke) that “if the contractor is bound to build according to plans and speci- fications prepared by the owner, the contractor will not be responsible for the consequences of defects in the plans and specifications.” Explaining that the government’s actions constituted an implied warranty, the Court continued, “[T]he insertion of the articles prescribing the character, dimensions, and location of the sewer imported a warranty that if the specifications were complied with, the sewer would be adequate. This implied warranty is not overcome by the general clauses requiring the contractor to examine the site, to check up the plans, and to assume responsibility for the work until completion and acceptance.” Today, lawyers call this the Spearin Doctrine which – when a governmental entity includes detailed specifications in a contract, it warrants that: 1) If the contractor follows those specifications, the resultant product will not be defective or unsafe. 2) If the resultant product proves defective or unsafe, the con- tractor will not be liable for the consequences. THE DOCTRINE AND ITS APPLICATION. Despite its age, the doctrine is still quite relevant today. That old 1918 Supreme Court case has been cited more than 2,900 times by federal and state courts in construction cases dealing with defective plans or specifications. In fact, the Spearin Doctrine was adopted as law in Missouri just last year. The government’s implied warranty is that the plans and specifications are “reasonably accurate,” free from significant defects, though not perfect. Plans and specifications are considered “defec- tive” if they are “so faulty as to prevent, or unreasonably delay, completion of the contract performance.” When the implied warranty is breached, the contractor is entitled to recover all of the costs proximately flowing from the breach. Compensable costs may include delays that result from dealing with the defective design.

THE ZWEIG LETTER April 9, 2018, ISSUE 1243

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