Development and Review of Specifications Attachment 2
Specification Review Guidance
When conducting a review of State DOT specifications, division office staff should focus on the
following general areas:
Guidance related to each of these areas is provided below.
- Administrative issues. Reviewers should ensure that the State DOT complies with the following general types of policy and procedural issues related to construction lettings.
- Required contract provisions
- Federal, State, and local agencies have certain required contract provisions covering such items as employment, subletting or assigning of the contract, safety, termination, and environmental requirements that must be included in construction contracts. Because these requirements may change on relatively short notice, the required contract provisions are generally not included in bound books of standard specifications.
- Form FHWA-1273 contains the required contract provisions and proposal
notices that are required by FHWA and other Federal agencies. Form
FHWA-1273 must be incorporated into all contracts as well as appropriate
subcontracts and purchase orders.
- The Contract Administration, Core Curriculum, Participant's Manual and
Reference Guide 2006, Chapter II.A, Required Contract Provisions (Form
FHWA-1273), summarizes each of the provisions included in Form
FHWA-1273 and provides related guidance.
- Other contract provisions
- The Contract Administration, Core Curriculum, Participant's Manual and Reference Guide 2006, Chapter II.B, Other Contract Provisions,
summarizes additional provisions applicable to Federal-aid construction
- These provisions address Buy America requirements, disadvantaged
business enterprises, non-collusion statements, on-the-job training, and
standardized changed conditions clauses (e.g., differing site conditions,
suspension of work ordered by the Engineer, and material changes to the
scope of work).
- State-specific provisions
- Reviewers should also be aware of any State-required provisions or project-specific conditions (e.g., permit requirements).
- The State DOTs may not modify the provisions of Form FHWA-1273. Additional State requirements may be included in a separate supplemental specification as long as they do not change the intent of the required contract provisions.
- Public interest finding (PIF)
- Certain rules, policies, and procedures contain provisions that allow them to be waived under certain circumstances through a public interest finding.
- As its name suggests, a PIF allows exceptions if it is in the public's best
interest to do so. Usually, an exception is deemed to be in the public's
interest if it is more cost effective than meeting the established rule, policy,
or procedure. However, some situations may require consideration of
other factors. A public interest finding is, by its very nature, an unusual
situation. The Division Administrator should only concur with a State
DOT's PIF after carefully considering the specific situation and the
precedent that may be set.
- Conditions that typically require a PIF include:
- Specification of proprietary materials, equipment, or processes;
- Mandated use of agency-provided materials or designated material sources; or
- The justification for a public interest finding will vary depending upon the
nature of the request; however, the justification should be objective and, to
the extent possible, quantifiable. In general, the request for a PIF should
include a written document that outlines the basis for the request and
provides the necessary supporting information, such as a cost/benefit
analysis, review of product availability and compatibility, logistical
concerns, and other unique considerations.
- Description of need - The PIF should clearly describe the nature of the request, including all limitations and conditions as to the
applicability of the finding (e.g., specific type of material and application; type of roadway or project)
- Engineering/economic analysis - The analysis provided in the
request should be based on objective data, with all assumptions clearly identified. To the extent possible, the analysis should
include quantifiable benefits, such as reduced life-cycle costs or a reduction in inventory.
- Duration of approval - The PIF should include a request for the specific date of approval, as well as the length of time the PIF will remain in effect. A PIF should be reviewed periodically (e.g., every two to five years) to reassess its need. Changes in market conditions, product availability, technology, or the agency's performance objectives may eliminate the continued need for the
- For examples of approved PIFs, division office personnel may access the resource center's PIF Database.
- Materials-related issues. To promote a competitive bidding environment, Federal regulations contain certain restrictions related to specifying the use of proprietary products and agency-provided materials. The guidance provided below describes these issues and identifies any allowable exceptions. Requirements related to incorporating experimental features on a Federal-aid project are also discussed.
- Proprietary products and use of trade names
- A patented material or process that can only be obtained from one
manufacturer is considered to be a proprietary item. Proprietary
specifications are created when a description of a material or process
either cites a specific brand name or is written so restrictively that only one
vendor or manufacturer can supply the desired item.
- Federal regulations (23 CFR 635.411, "Material or Product Selection")
prohibit the expenditure of Federal-aid funds on proprietary products
unless specific conditions are met (see Types of Specifying for a detailed description of proprietary specifications and the conditions under which
they are justifiable). The intent of this regulation is to provide for full
competition in the selection of materials, equipment, and processes, while
also allowing the opportunity for innovation if a reasonable potential for
improved performance exists.
- Generally, proprietary items are identified in the plans or specifications by a brand or trade name (e.g., 3M). However, even without referring to a trade name, a product can also be so narrowly specified that only a single provider can meet the specification. For this reason, it is important to thoroughly review all reference standards incorporated into a specification to ensure that they do not restrict an otherwise open specification to a single product. Likewise, specifications that refer to a State DOT's Qualified or Approved Products List could also inadvertently incorporate proprietary, sole-source, or local preferences that would not be appropriate for a Federal-aid project.
- The use of trade names in specifications can sometimes be avoided by writing requirements in terms of desired results. A generic, end-result specification is preferable to specifying a proprietary product because it can promote competition. However, simply deleting the name of the product while retaining all of the salient characteristics from the manufacturer's literature or cut sheets would not necessarily create a non-restrictive specification. Without providing some range of quality or performance, it may still be possible that only one manufacturer or vendor could meet the specification. Adding the phrase "or equal" next to a brand name similarly does not make a proprietary specification competitive if the technical requirements can only be met by the named brand. To ensure a specification is competitive, a reasonable number (as determined by the division office) of manufacturers or vendors should be able to provide or achieve the specified results.|
- State-provided material and equipment
- Federal regulations (23 CFR 635.407) require a competitive bidding process to acquire the materials that will be incorporated into a project. If a specification requires use of materials or equipment provided by the State DOT, the contractor will not be able to select and provide materials from its own sources, a restriction that could result in higher project costs.
- If a specification mandates use of State-provided materials or equipment, ensure that provision of these items by the State DOT is necessary (e.g., to tie into existing systems or for cost savings) and meets the allowable exceptions to the competitive bidding requirements found under 23 CFR 635.407.
- Exceptions require the Division Administrator to concur that the use of materials provided by the State DOT or from sources designated by the State DOT is in the public interest )refer to the discussion above on public interest findings). Factors that may lead to a PIF include cost effectiveness, system integrity, and local shortages of materials. When dealing with natural materials (e.g., borrow pits or stockpiled materials) the PIF may also be based on environmental considerations.
- The exception policy treats manufactured materials differently from local natural materials.
- Manufactured materials - When a PIF approves the use of manufactured materials provided by the State DOT, the specification must make such use mandatory. Allowing it to be optional would violate public policy that prevents government agencies from competing with private firms.
- Local natural materials - When the State DOT owns or controls a natural materials source, the specification may designate such materials for either optional or mandatory use; however, mandatory use will require a PIF.
- For more information related to State-provided or designated materials, refer to Contract Administration, Core Curriculum, Participant's Manual and Reference Guide 2006, Chapter II C.5.d., State Owned/Furnished/Designated Materials.
- To help prevent claims against owner-caused delays, it is also a good practice when specifying the use of State-provided materials to include a requirement for the contractor to identify in its schedule when it needs such materials. The specification should also require the contractor to inspect and accept the items provided by the State DOT before incorporating them into the work to help prevent later disputes regarding the quality of the furnished item.
- New materials or experimental features
- If a State DOT wishes to evaluate new or innovative materials or technology under actual construction and operating conditions, it can request its incorporation into a Federal-aid project as an experimental feature.
- An experimental feature is a material, process, method, equipment item, or other feature that has not been sufficiently tested under actual service conditions or has been accepted but requires comparison with alternative acceptable features to determine its relative merits and cost effectiveness.
- Instruct the State DOT to submit a written work plan to the division office for review and approval that describes the experimental feature, along with the objectives of incorporating it into a project, and the measurements and evaluations that will be performed.
- Encourage the State DOT to submit the results of its evaluations to the AASHTO Product Evaluation Listing (APEL) database so that others may benefit from its experience.
- Technical content. The division office should ensure that the technical requirements
included in a contract are relevant, realistic, biddable, and applicable to the proposed
project. To this end, technical specialists at the division office, Washington
Headquarters, and the resource center should be consulted as necessary for input.
Such specialists may also be able to identify ongoing initiatives to develop or revise
similar specifications. Additional issues to consider when reviewing specifications for
technical merit are provided below.
- Fair and equal consideration
- A specification should clearly state the contractor's obligations and known
risk. No specification should try to get something for nothing by
concealing its intent.
- In general, risk should be allocated to the party best able to avoid or
manage the adverse impacts of the risk. Whether this party is the State
DOT or the contractor is entirely dependent upon project-specific
conditions and the willingness of the State DOT to potentially pay a
premium for the contractor to assume responsibility for a high-risk item.
- When allocating project risks, some consideration should also be paid to
the contract delivery approach. Certain contracting approaches (e.g.,
design-build) are more amenable to the contractor assuming risk for endproduct
- Specifications should not specify impossibilities or near impossibilities, or
contain unenforceable requirements. If ideal conditions cannot be
obtained, tolerances should be specified to allow acceptable variations in
the work. However, tolerances should not be too stringent, as
unnecessarily tight tolerances may increase costs.
- The issue of what will be done in the event that either party does not
satisfy their respective contractual responsibilities must be addressed. The
actions available to each party and the potential costs or delays that may
result from the failure of either party should be considered in specific
- Clear and measurable requirements
- Specifications should describe the required work with clarity and precision
to prevent different interpretations by the contractor and the State DOT's
representative. A specification should not include requirements that the
State DOT does not intend to enforce.
- Specification requirements should be based on procedures that are
necessary to produce the measurable qualities desired by the State DOT.
Specifying procedures or properties that cannot be justified by experience
or that are not related to the product quality may lead to a conflict that
cannot be equitably resolved.
- All requirements should be definitive and measurable. Without a definitive
method, the possibility for multiple interpretations could lead to conflicts
over the measurements taken.
- Requirements that involve the "opinion of the Engineer" cannot be
realistically bid as the quality requirements are left undefined.
- Similarly, if the work cannot be measured against a standard, the
use of adjectives and other word modifiers will not clarify or provide
additional substance to the directions. For instance, in field
applications, what would be the difference between "thorough
consolidation" and "consolidation" of fresh concrete? The judgment
made in the field would be whether or not the fresh concrete has
- The inclusion of requirements beyond what can be measured
equally by both parties to the contract, or requirements that are
open to differing opinions, should be eliminated. For example,
instead of stating "The concrete surface must be clean," consider
"Broom clean the concrete surface" or "Provide a concrete surface
free of dirt, grease, oil, or other foreign material."
- Use of words such as "satisfactory," "adequate," and "workmanlike"
similarly often fail to convey a measurable standard. The reference
Vague Adjectives and Adverbs list additional generic modifiers that
should be avoided in specifications.
- The specification should also clearly address where and when
measurements are to be made.
- If sequential measurement and approval actions will be necessary,
the sequence should be clearly identified.
- Once the work responsibilities are identified, a review of the
measurement and payment procedures is needed to ensure that
the sequence of each party's actions does not interfere with the
measurement of the work quality and quantity.
- Testing, inspection, and acceptance requirements
- To ensure its expectations are met, a State DOT must be able to examine,
analyze, demonstrate, or test what it buys. Specifications should therefore
contain, for each requirement, a corresponding statement of the method
by which the State DOT will verify that the requirement has been fulfilled.
- As part of its stewardship and oversight role, the division office should
ensure that the State DOT has adequate controls in place regarding
project cost, schedule, and quality.
- Regardless of the exact manner in which acceptance activities will
be performed (visual examination, mockups or test pads, sampling
and testing, auditing of contractor QC data), the State DOT should
have a clear process in place to ensure that its engineering and
inspection staff, or outside consultants as applicable, are
consistently performing and applying established procedures to
prevent unintentional acceptance of non-conforming work or the
appearance of arbitrary decisionmaking in the field. Inconsistent
enforcement of requirements is a primary cause for ineffective
specifications and would run contrary to the State DOT's
responsibility to safeguard the public's interest.
- A State DOT's quality management activities should start with the
review and approval of the contractor's submittals and shop
drawings. Identification and correction of problems during the
submittal stage can eliminate the need for costly and time
consuming rework activities during construction.
- Once construction is underway, inspectors should routinely monitor
the progress of the work, both in terms of adherence to the project
schedule and budget, and compliance with construction
- All sampling, testing, inspection, and other verification activities
should be performed in accordance with the State DOT's
established quality assurance procedures. Title 23 CFR 637 –
Construction Inspection and Approval, describes the necessary
components of a State DOT's construction inspection and approval
program to ensure that the materials and workmanship
incorporated into a Federal-aid highway construction project
conform to the approved specifications.
- Some best practices related to specifying inspection and acceptance
activities are described below.
- The specification should clearly define how the State DOT intends
to conduct quality assurance and acceptance activities. This
information is important to both the State DOT's inspection staff
that will be performing this work and to contractors for factoring into
their bids and construction schedule.
- When writing specifications and using them in the field, it should be
remembered that "approval actions" and "acceptance" may be
considered to be the same when conflict resolution reaches the
claim stage or litigation. Generally, exculpatory clauses that are
inserted into approval documentation (for example, false work
design and structural design submittals) have not been successful
as a defense in litigation.
- If either party has additional responsibilities for a contract item after
measurement for payment, the nature and extent of that
responsibility must be specified.
- To the extent necessary, the specification should also describe
responsibilities regarding removal and replacement of defective
work or contractor acceptance of reduced payment.
- Several State DOTs are now moving towards assigning contractors more responsibility for quality assurance sampling and testing, a role traditionally held by the State DOTs. This shift in traditional roles and responsibilities is primarily seen with alternative contracting techniques, such as design-build delivery, or with performance specifications. However, even if the contractor is performing the bulk of the testing, the State DOT should still perform sufficient verification to ensure that the desired quality level has been achieved. Failure to do so could compromise both endproduct performance and future maintenance costs. For more details, refer to T6120.3, Use of Contractor Test Results in the 45 Acceptance Decision, Recommended Quality Measures, and the Identification of Contractor/Department Risks.
- Method versus performance specifying
- When reviewing a specification, consider what type of specification is being used, and whether it is the best choice for meeting the project's needs and goals. Specification language may have to be adjusted accordingly. For example, performance specifications will typically require more emphasis on contractor quality control and end-product parameters that affect performance, whereas method specifications will require more detailed descriptions of materials and processes. Refer to the document Types of Specifying for more information on method and performance specifications.
- Performance specifications can also serve as a welcome alternative to a proprietary specification. Proprietary specifications are generally disadvantageous to agencies because restricting competition may result in higher prices. Efforts to ensure open competition through the use of performance specifications can assist the State DOTs in controlling costs of construction projects while still maintaining quality.
- Organization, formatting, and writing style. To effectively communicate requirements, specifications must be clear, concise, complete, correct, and consistent.
Meeting these "five C's" of good specification writing requires good grammar, proper
sentence construction, consistent organization, formatting, and writing style, as well as
technical accuracy and applicability to the project at hand. Some general guidance on
evaluating a specification for organization, clarity, and writing style is provided below.
- A standard, five-part format for specifications has evolved over the years
through the concerted efforts of the FHWA and AASHTO, in coordination
with highway construction industry organizations. Most agencies follow
this five-part format, which provides distinct subparts for:
- Description of Work
- Construction Requirements
- Some agencies have adapted the AASHTO format to create a four-part
format, in which the measurement and payment subsections are
combined. Others are using a modified Construction Specifications
Institute (CSI) format. Regardless of the exact format used, a standard
organizational structure provides the following benefits:
- A standard format establishes a uniform approach to providing
needed information, describing the work to be performed and
identifying the responsibilities of the contracting parties. This
standard format can thus act as a checklist of what information to
include and where to include it. Information that does not fall within
the standard subparts is considered nonessential.
- Separating the necessary parts of the specification into
manageable increments allows the writer, and similarly the reader,
to pay proper attention to the particular needs of each part.
- Having a consistent, logical framework allows the specifier, the
contractor, estimator, manufacturer, and inspector to quickly find
information within an individual section. A well organized
specification eliminates confusion and results in a smoother
contracting process that, in turn, provides economic benefits to all
- Establishing a base format numbering system and sequence of
specifications provides an easier referral system for specification
- Although all subparts may not always be applicable, they should not be
deleted. The specifications should show all of the format parts using the
notation "none specified" where the information is not applicable. For
example, consider a specification on Section 201 - Clearing and Grubbing.
To fully describe this work, the specification would require subsections for
the description of work, construction requirements, method of
measurement, and basis of payment. Although there would be no
materials requirements, the materials subsection should not be eliminated.
Instead, the subsection should be presented as follows: 201.02 Materials
Requirements - None Specified.
- The discussion on method specifications in the document Types of
Specifying addresses the content considerations for each of these
subparts. Adherence to this organizational structure can help ensure that
the specification is complete.
- The information within the subparts themselves should also be carefully
organized to ensure continuity of thought and logic.
- Requirements should be arranged into discrete and complete
messages that can be expressed simply.
- The information should be presented in the same sequence as the
contractor will perform the work (e.g, mix, place, finish, and cure).
- Writing style
- Specifications are a compilation of directions, provisions, and
requirements pertaining to the performance of the work. They should
describe the work with clarity, precision, and consistency and should have
an organized and logical format. Well-written specifications inform the
contractor of the work to be performed, the conditions and restrictions on
the performance of the work, the expected quality of the work, the manner
in which the work is to be measured for payment, and how the State DOT
will pay for the work. With that in mind, reviewers should ensure that
- are clear, concise, and technically correct;
- do not use ambiguous words or phrasing that could lead to
- clearly define roles and responsibilities;
- are written in simple words and short and easy to understand
sentences and paragraphs;
- do not repeat requirements stated elsewhere in the contract; and
- are consistent in terminology, usage, format, and organization.
- Additional review tips for ensuring that specifications are written in a
manner that is clear, concise, complete, and consistent are provided in the
document Basic Specification Writing Principles.
- If the State DOT has not already developed a specification style guide,
encourage it to do so. Style guides provide guidance on writing style,
organization, format, terminology and phrasing, and related drafting
conventions. If the State DOT's specification writers adhere to the
guidelines, the reviewers will be able to focus on content and technical
matters, instead of grammar and consistency issues. Typical topics
addressed in a style guide include:
- Standard terminology and phrasing;
- Proper use of voice and mood;
- Formatting conventions; and
- Additional conventions related to punctuation, capitalization, and
use of abbreviations and acronyms.
- Coordination with other requirements
- Specifications are often written in a piecemeal manner by several different
authors, depending upon the expertise needed. It is therefore important to
read the contract as a whole to help identify conflicting requirements. A
requirement occurring in one is binding as though occurring in all.
- Conflicting requirements can be several pages apart, so finding the
conflict often depends on the memory of the reviewer. Using a word
processing program to search on key words and phrases can help identify
- Technical requirements should be coordinated with the administrative
requirements in the General Conditions (typically Division 100 of the
Standard Specifications). Conflicts often occur regarding submittal
requirements, measurement and payment terms, responsibility for permits,
coordination responsibilities, and definitions (i.e., using the correct terms).
- Conflicting specifications or contract requirements may be resolved using
an order-of-precedence clause. In highway contracts, such a clause is
often found in the Control of Work section of the General Conditions
- The basic philosophy is that project-specific information governs or takes
precedence over the more generic, and written specifications govern over
drawings. Thus, the hierarchy of documents imposed by a typical orderof-
precedence clause is as follows:
- Project Special Provisions
- Project Plans
- Supplemental Specifications
- Standard Specifications
- Standard Plans
- Reviewers should be aware of a State DOT's standard order-of-precedence
clause when reviewing contract documents. Note, however,
that the intent of this clause is not to eliminate the need to minimize
contradiction among contract requirements. Reviewers should strive to
identify and eliminate conflicting requirements as part of their review effort.