By Michael C. Loulakis and Ashley P. Cullinan
One of the well-established issues in design-build contracts stems from the preliminary design documents — commonly called “bridging documents” — used by owners in their solicitations. Unlike the design documents used for design-bid-build delivery, which are 100% signed and sealed by the owner’s designer of record, bridging documents are typically in the range of 30% design completion. Their purpose is to explain the owner’s expectations and help prospective design-build contractors develop their technical and price proposals.
Many design-build solicitations will state that the bridging documents are conceptual and that the owner is not responsible for any errors in them. The reality, however, is that design-builders do rely upon the accuracy of some elements of these documents in formulating their proposals, as they do not have the time, money, or inclination to determine inaccuracies during the proposal process.
The “rubber meets the road” after the design-builder is awarded the contract, when it finds a mistake in the bridging documents and asks for a change order. As the title to this column asks, who bears the risk for these mistakes?
There are only a handful of reported cases that have addressed this issue over the past 30 years. Most decisions have granted design-builders relief by concluding that it is a Spearin doctrine issue, in which the owner impliedly warrants that the design documents it furnishes to bidders are accurate and can be relied upon — notwithstanding contract language to the contrary.
A few decisions have concluded that the design-builder was not entitled to rely upon the representations in the bridging documents. A recent decision from the U.S. Court of Appeals for the Federal Circuit, Balfour Beatty Construction LLC v. Administrator of the General Services Administration, sheds additional light on who should bear the risk.
The case
The GSA issued a design-build solicitation for the construction of a central utilities plant to support the U.S. Department of Homeland Security headquarters on the West Campus of the former Saint Elizabeths Hospital in Washington, D.C. The solicitation documents stated that the bridging documents were approximately 30% complete and that:
[T]he Bridging Documents are conceptual in nature and are intended to depict the overall intent of the project terms of general design concept, the major architectural elements, and describe the required performance of the other systems. As Bridging Documents they are preliminary in nature, are not fully coordinated and are not intended to indicate or describe the scope of work required for the full performance or completion of the project.
Interestingly, the solicitation also stated that the bridging documents were to serve as the basis for the proposal submissions by the design-builders.
GSA awarded the contract to Balfour with the contract value being approximately $58.3 million. The contract required Balfour to validate the project design “within 60 days of the notice to proceed, and then complete the design,” according to the decision. As Balfour performed the work, it found a number of design issues associated with the bridging documents. It also encountered differing site conditions and other challenges that delayed project completion. Balfour ultimately submitted to GSA 19 claims amounting to approximately $13 million, which were denied by GSA’s contracting officer.
Balfour appealed the contracting officer’s decision to the Civilian Board of Contract Appeals. After a seven-day hearing, the board issued a 61-page decision that granted some of Balfour’s claims, but it denied some major ones. Balfour thereafter appealed to the U.S. Court of Appeals for the Federal Circuit on those claims that had been denied by the board.
The ruling
The appeals court explained that while it could consider questions of law, including contract interpretation, de novo (i.e., without regard to the board’s determinations on those issues), the appeals court could not set aside the board’s factual determinations unless those determinations were: “(A) fraudulent, arbitrary or capricious; (B) so grossly erroneous as to necessarily imply bad faith; or (C) not supported by substantial evidence,” per court documents. The appeals court’s decision was brief and did not discuss all Balfour’s claims, as it found that the board had not committed reversible error on most of Balfour’s claims. However, the court did address two specific claims that were based on deficiencies in the bridging documents.
Before addressing these claims, the court cited the Spearin doctrine and its long-standing principle that the government provides contractors with an implied warranty that contractors are not responsible for the consequences of defects in government-furnished design documents. This implied warranty is associated with “design specifications, which ‘explicitly state how the contract is to be performed and permit no deviations,’” according to the decision. The court noted that there is no implied warranty for performance specifications, which specify “the result to be obtained but (leave) the contractor free to determine how to achieve those results.”
One of Balfour’s bridging document error claims involved the additional design and construction costs incurred to adjust for a thicker mat slab that had to support equipment and column loads. Balfour based its mat slab claim on statements in the bridging documents directing Balfour to “match existing building foundations,” which were 18 in. thick. During the post-award validation process, Balfour determined that the slab thickness needed to be substantially increased; the slabs were ultimately between 43 and 53 in. thick. Balfour argued that under the Spearin doctrine, there was an implied warranty tied to the statement that Balfour was to match the existing building foundations and that it based its proposal on this statement.
The board denied the claim because the solicitation documents also provided calculations from GSA’s consultants for a 24 in. foundation. “The Board concluded that because these documents ‘raised a question about the mat slab thickness that should have caused Balfour to raise the issue before contract award,’ Balfour was not entitled to recover costs related to designing the thicker mat slab,” per the decision. Specifically, the board found that no implied warranty should be attached to the slab thickness and that this was ultimately a performance specification.
The appeals court found that the board had erred in reaching this conclusion and agreed with Balfour that the language in the drawing about matching to the existing building foundation was “sufficiently definite to constitute a design specification.” As a result, the court concluded that GSA had given an implied warranty in regard to the mat slab’s thickness. The court further stated that even if there were a conflict between the drawing and the calculations, the mat slab Balfour ended up having to build was “almost double what the calculations required,” as stated in the decision.
The analysis
The Spearin doctrine is based on a U.S. Supreme Court case from more than a century ago. While the doctrine has been discussed in this column many times, it is important for readers to remember what it is trying to accomplish. Bidders have limited time and expertise to review an owner’s design documents and assess them for errors. Because it would be unfair to saddle bidders with the risks of these errors, the doctrine finds that owners impliedly warrant to contractors that their design documents are accurate.
Some owners have tried to argue that the design-build process changes all this, as bridging documents are not final. However, as evidenced by the Balfour case, Spearin is alive and well when a design-builder has reasonably relied upon the bridging documents, and those bridging documents lead a potential design-builder to believe that a certain scope of work is needed. The fact that there was such a significant difference between the mat slab thickness envisioned by the match to the existing foundation specification and what was ultimately needed, certainly played a role in how the court looked at this situation.
While the decision does not mention the solicitation language about the proposal having to be based on the bridging documents, it is likely that some judges and arbitrators might cite that language as a further basis for invoking the Spearin doctrine.
Michael C. Loulakis is the president and CEO of Capital Project Strategies LLC in Reston, Virginia. Ashley P. Cullinan is an associate with Smith Currie Oles LLP in Tysons, Virginia.
This article first appeared in the July/August 2025 issue of Civil Engineering as “Tell Me Again: Who Bears the Risk of Errors In Design-Build Bridging Documents?”
