Legal Desk, October 2020: The slow encroachment of performance-based specs
By Dan Leduc
By Dan Leduc
October 26, 2020 – As a general rule, our national or provincial electrical codes are prescriptive in nature and design. They are a specification of sorts, mandating how certain components are to be sized, spaced, connected and used.
As such, it stands to reason that most electrical specs would be prescriptive in nature, as well.
However, with the introduction of certain specified outputs, energy code compliance and LEED standards, the issue of prescriptive versus performance specs has begun creeping into the electrical contracting world.
A prescriptive spec is often characterized as a recipe; it gives you the specific components to be installed and linked. In combination with the applicable electrical code, the spec will prescribe the list of elements and items to be installed. This allows you to count the number of specific elements to be installed (e.g. light fixtures), which helps you arrive at a price estimate.
Performance specs are not recipes because they do not tell you what to specifically install, but rather mandate certain performance outcomes (e.g. your installation must meet or exceed a specific energy code requirement). Whereas a prescriptive spec would tell you what size motor to supply and install, a performance spec would tell you the output required for the motor.
Put another way, a prescriptive spec spells out the means to the end. A performance spec identifies the end; you figure out the means.
You typically see performance specs in design-build arrangements. With the recent trend toward design-build applications—including integrated project delivery (IPD), with the electrical contractor in the role of design assist—the applicable specification will likely shift from prescriptive to performance or, what’s even more likely, a combination of both.
The danger to you comes from assuming your particular spec is prescriptive only in nature, and not performance in any part, which can easily lead to assumptions that will impact your price as part of your estimate.
It is worthwhile to step back and look at the specification as a whole to see whether certain elements are performance in nature. Do not assume you are contractually mandated to only carry out those portions that are prescriptive in nature, and ask for clarifications prior to bid close.
Dan Leduc is a partner in the law firm of Norton Rose Fulbright LLP, and practices exclusively in the area of construction law. He is always happy to take on new clients from anywhere in Canada. Contact Dan at firstname.lastname@example.org.
This column—along with other great content—appears in the October 2020 edition of Electrical Business Magazine.