Under the Spearin doctrine, when the government furnishes design specifications directing the contractor on how to undertake performance on a contract, it provides an implied warranty that the contractor will be able to perform the contract satisfactorily if it adheres to the government’s specifications. The doctrine allows contractors to transfer to the government the risk of increased costs resulting from defective specifications. Notably, however, the Spearin doctrine only applies when the defective specifications are design specifications as opposed to performance specifications. Design specifications expressly describe how contract performance must be undertaken and do not permit the contractor to make any deviations. Meanwhile, performance specifications state the overall objectives that must be achieved but leave the decisions on how to achieve those objectives at the discretion of the contractor. Since design specifications do not allow deviations or grant the contractor discretion in achieving contractual objectives, the government implicitly warrants that design specifications are free from defects. Consequently, when the government’s design specifications are defective or result in unsatisfactory performance the government is deemed to have breached its implied warranty of specifications under the Spearin doctrine. In such cases, the contractor may recover all proximate costs stemming from the government’s breach.

Enacted in 1994, the Federal Acquisition Streamlining Act (FASA) contains a “task order bar” that removes from the coverage of the Tucker Act any protests that relate to the issuance of a task or delivery order, the contract value of which does not meet the monetary threshold of $35 million for defense procurements and $10 million for non-defense procurements. Thus, if the contract value of a task or delivery order falls below these thresholds, the Government Accountability Office (GAO) will not entertain protests challenging the award due to lack of jurisdiction. The general rule for determining contract value for the purposes of establishing protest jurisdiction is to calculate the amount of the task or delivery order award. However, the GAO may, under unique circumstances, look beyond the amount of the award to establish the contract value for the purposes of jurisdiction. Such unique or extraordinary circumstances may include situations where the government utilized unconventional methods for compensating the contractor or employed atypical price evaluation techniques. Absent such unique circumstances, however, the GAO will not look beyond the value of the task or delivery order award to establish bid protest jurisdiction.

Contractors frequently form joint ventures to respond to federal contracts solicitations that require the submission of past performance information. Since joint ventures are entities separate from their member firms, created in many instances to pursue specific federal opportunities, they may not have the necessary past performance history. As a result, joint ventures often rely upon the past performance history of their individual member firms. Meanwhile, procuring agencies are generally permitted to consider the past performance history of individual member firms during evaluation. This is true even when the solicitation expressly limits the use of past performance information to contracts performed as a prime contractor. When responding to such solicitations, joint ventures may utilize the past performance history of their individual member firms, as long as the member firm was a prime contractor on the referenced contract, and the past performance information is reasonably predictive of the quality of the joint venture’s future performance under the contract being awarded. Similarly, if reasonably predictive of performance, joint ventures may use the past performance history of their individual members, even when those members earned it as members of a different joint venture. Contractors should be mindful that while joint ventures can usually submit the past performance history of their member firms, an exception to this general rule is if the solicitation contains an express provision prohibiting the use of such past performance information.

Federal contractors may enter into joint venture agreements to pursue and perform federal contracts and carry out specific business activities. Governed by the terms of the joint venture agreement, joint ventures are independent entities that typically exist separate and apart from their member firms. In the event the joint venture is awarded a government contract, it is this separate entity that is in privity with the government, not its member firms. Similarly, when a joint venture submits a claim and brings an appeal, it must do so in its own capacity. While each member firm possesses the requisite authority to act for or bind the joint venture, the member firms can agree otherwise in the joint venture agreement. In addition to the requirement that the appeal be brought by the contract holder, the person or entity bringing the appeal on behalf of the joint venture must have the necessary authority to do so under the terms of the joint venture agreement. An adjudicative forum’s jurisdiction over an appeal brought by a joint venture may depend entirely upon whether the person or entity bringing the appeal on behalf of the joint venture possesses the necessary authority to do so under the terms of the joint venture agreement.