Prior to the U.S. Supreme Court's decision in United States v. Spearin, 248 U.S. 132 (1918), virtually all construction risk was borne by the contractor, except for (i) express carve-outs set forth in a contract or (ii) performance rendered impossible by acts of God or nature. In Spearin, the Supreme Court ruled that "if the contractor is bound to build according to plans and specifications prepared by the owner, the contractor will not be responsible for the consequences of defects in the plans and specifications. This responsibility of the owner is not overcome by the usual clauses requiring builders to visit the site, to check the plans, to inform themselves of the requirements of the work…and to assume responsibility for the work until completion and acceptance.”
With the increasingly prevalent use of the design-build project delivery method of late, many assumed that the Spearin doctrine's protections would be diminished, and the risk of additional design-related cost would be borne solely by the design-build contractor. A review of recent cases however, indicates that Spearin is, in fact, still alive and well in the design-build context, if not more so.
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