If there is a conflict within Contract Documents

Archive of Older Topics Archive - Specifications Discussions #2
1

I have been asked if the AIA or other authority have a list in order or priority of documents, from highest to lowest?
Do any of you add such a list as a Supplemental Contition?

Canadian Construction Documents Committee (CCDC) publishes the following heirarchy.

  1. In order of priority of documents, from highest to lowest, shall be:
  • the Agreement between the Owner and the Contractor,
  • the Definitions,
  • Supplemental Conditions,
  • the General Conditions,
  • Division 01 of the Specifications,
  • Divisions 02 through 49 of the specifications,
  • materials and finishing schedules,
  • drawings.
    2.2. Drawings of larger scale shall govern over those of smaller scale of the same date.
    3.3. Dimensions shown in drawings shall govern over dimensions scaled from drawings.
    4.4. Later dated documents shall govern over earlier documents of the same type.
2

See CSI Project Resource Manual (PRM) 5.11.4.4.

It states “the use of statements in the project manual to establish the precedence of various contract documents is not recommended…”

Mainly, all documents are complementary, and what is required in one is the same as if required by all.

In cases of conflict, the A/E is the interpreter of the documents.

3

The A201-1997 states in 1.2.1, “The Contract Documents are complementary, and what is required by one shall be as binding as if required by all…” The text in the 1987 edition, located in 1.2.3, was identical, with a single exception that is not related to this issue. (It is a significant change, though; while the 1987 edition required the contractor to produce the “intended results”, the 1997 editions requires the contractor to produce the “indicated results”. The contractor no longer has to be a mind reader. Well, not as much…)

AIA’s Commentary on AIA Document A201-1997 includes the following note at paragraph 1.2.1:

Because the contract documents are a collaborative effort sometimes involving the owner, architect and numerous consultants, there is no inherent order of precedence among those documents. For instance, a plan may show a door, a door schedule will designate the type of door and hardware, one specification section may specify the quality of door and another specification section will specify the quality of hardware. Collectively, those contract documents are used to describe that particular work item. Moreover, a pre-selected order of precedence assumes that one item is more important than another. For instance, assuming that the plans are chosen to prevail over the specifications, if the plans did not show the hinges on the door even though the specifications required them, the owner might get a hingeless door. Under these circumstances, a pre-selected order of precedence may cause an absurd result.

AIA A511-1998 - Guide for Supplementary Conditions also addresses this issue.

A principle of the AIA General Conditions is not to establish a system of precedence among Contract Documents, but to provide that all Document are complementary. In the event of inconsistencies…the Architect is to interpret them in accordance with this principle… Establishing a fixed order of precedence is not recommended…

It goes on to say that if an owner insists on an order of precedence, a clause should be added to 1.2.1, and gives a recommended order. Even with that addition, the recommended order does not establish precedence between Divisions 2-16 and the Drawings.

Owner-created general conditions, or owner supplementary conditions to AIA documents often do include an order of precedence; I don’t recall how EJCDC documents treat this issue.

4

Each contract requirement is complimentary and none have more importance than the other. Setting order of precendence of contract requirments is like setting order of precendence for laws; stealing is more important than adultery. In who’s judgement? We can’t choose which laws to follow based on importance to an individual. Neither is it advised to give a contractor that same option with contract requirements.

5

If our documents were perfect, there would be no need for order of precedence. But in the real world, setting an order of precedence does have merit, especially for bidding.

For example, it seems reasonable that large scale drawings would be more accurate than small scale drawings. That was certainly true in the days of hand drafting, but is often true even today, when CAD gives the same accuracy at any scale. Contractors are told not to scale drawings for takeoffs, but many times dimensions are not given or are difficult to find.

Quantities stated or implied frequently vary between specifications and drawings, and sometimes within either. I have often seen landscape documents that showed trees graphically, included a quantity schedule on the drawings, and specified quantities in the specifications. In most cases, at least two of the quantities are different; I recall one project that had three different quantities for the same plant.

Yes, the bidder is required to notify the architect of such discrepancies, and no, I dont have much sympathy for those who dont. The problem is that you cant know if the bidder didnt see the differences, or did see them and filed them in the change order file. The benefit of order of precedence is that it establishes a starting point for the inevitable change order.

The disadvantage is that the result does not necessarily agree with the intent. Requirements such as bid the greater quantity or the more expensive product, which essentially establish an order of precedence, are a commonly used attempt to overcome discrepancies in the documents.

If a claim does result from a discrepancy, my observation of case law indicates the courts will favor the contractor, who had but a couple of weeks to figure out what all those drawings and specifications mean, over the design professional, who had months to prepare them. Again, if we produced perfect documents there would be no problems.

I am not arguing in favor of an order of precedence, just commenting on the reason for doing it. In the future, this may become a non-issue, as the integration of CAD and specification software will go a long way toward eliminating conflicting information.

6

Lets focus on the original question. We can’t address would of, should of, could of. Treat the ailment, not the symptoms.

7

Anon: Thank you for your invaluable input, but this is a discussion forum (see name of website). I believe most specifiers would prefer to make decisions after reviewing relevant information, and I suspect Mr. Yancey’s question, “Do any of you add…,” would not be answered to his satisfaction if twenty specifiers replied only by saying yes or no.

I suggest you focus some of your attention on spelling and grammar, and treat your ailment.

“Lets” should be “Let’s”

“would of” etc. should be “would have” etc.

And let’s quit hiding.

8

Dear Shellie
Have a suggestion for you too, but a modicum of class dictates otherwise.

9

I often appreciate Sheldons contributions to these discussions and I couldnt care less if everyone addresses the original question as stated or not. (And, I’m still searching for the “modicum of class” in anon’s overly personal comments.)

I agree that establishing an order of precedence will effectively eliminate the Architect’s chances of winning any arguments with the contractor where established higher priority documents favor the contractors arguments. It could also work in the Architects favor, but in general, it decreases the Architects ability to interpret the documents where discrepancies exist.

There are times, however, when I will note precedence of an owners boilerplate general conditions when our specifications are already required to comply with and not contradict those general conditions. In those cases, it is important that the contractor perform the work according to the Owners requirements in spite of what I might inadvertently leave in my specifications out of habit. Anything I want changed from those general conditions has to be included in the supplementary conditions.

Additionally, I see no reason not to point out that supplemental conditions always take precedence over general conditions. That is the whole purpose of their existence to add to or take precedence over what was stated in the general conditions.

10

Thank you to Ronald, Sheldon, and Russell for a prompt reply. I agree with all the facts and opinions expressed in this forum. I felt I had a duty to seek an answer to the question presented to me at a recent inhouse technical roundtable. My father used to to tell me if I did not know something, I should be sure to find out. Thanks again.

11

I stick with AIA thinking and do not recommend that any owner add a precedence of interpretation list to the Supplementary Conditions.
In spite of the ill-tempered remarks of “anonymous”, I am happy to hear practitioners volunteer the reasons behind this widespread practice.
To add one more: Precedence lists sometimes give the specifications higher rank than the drawings. With the rush that afterthought specifications are done in, often with incomplete or unavailable drawings in the weeks before the specs are due, there is no reason to believe that specifications are going to be more complete and correct.
Spec consultants are especially aware of late drawings, incomplete drawings, late decisions, and decisions of questionable wisdom - all while being reminded of the deadline.

12

I agree with AIA’s position but I would add a provision that makes the Contractor responsible for the cost of either of the conflictiong requirements. Thus the design professional can chose the appropriate version without having to be concerned about there being an extra.

13

When asked the question regarding precedence, I give the complementary answer and ask them back…“What if the mistake is in the large scale detail?”

14

Referring the question to the design professional for resolution addresses the question of quality. This still leaves open the question as to whether the Contractor can justify an extra. To help deal with this issue I suggest we add a provision that makes the Contractor responsible for the cost of the more expensive option.

15

Boy, boys. From a womans perspective, I must agree with Anon-I. Some of you fellas do veer off into left field from time to time.

16

Some years ago, our local AIA/ AGC coordination meeting developed an order of precedence to be used ONLY for bidding (this is when we were doing more public bid jobs). The problem we ran into was that there would be a conflict between a finish schedule and a reflected ceiling plan, and nothing would get put into the bid for that space, when it was very clear that something was required. We wanted to make sure that the various areas were at least covered to some extent and the squabbling could continue after that. I still think thats a good idea. (example: we had 2 x 2 ceiling panels on the ceiling plan and the finish schedule showed hard lid ceiling, so the contractor would put nothing in for the ceiling “because there was a conflict” and the whole thing would be an add. We could clearly argue that we wanted something for the ceiling – that leaving it out was not the “correct” option.)

However, for an actual order of precedence in our documents, no, unless the Owner requires it. I’m not sure that helps the problem – but the AIA documents are pretty clear about that “complementary” thing.

17

The scenario Ms. Whitacre mentions is all too typical of those that I’ve encountered on Projects. I recently added the following language to our Instructions to Bidders (included in with the paragraphs under the heading “Examination of Documents and Site”):

  1. Bidders failure to report discrepancies or omissions in the Bidding Documents, or Bidder-generated assumptions regarding the intent of the Bidding Documents, shall not be used a basis for future claims once the apparent discrepancies or omissions have been reconciled by appropriate written interpretation issued by the Architect.

And in the Supplementary Conditions:

1.2.1.5 Contractors failure to report discrepancies or omissions in the Contract Docu-ments, or Contractor- or Subcontractor-generated assumptions, in lieu of Architect-issued clarifications regarding the intent of the Contract Documents, shall not be used a basis for future claims once the apparent discrepancies or omissions have been reconciled by appropriate interpretation issued by the Architect in accordance with Subparagraph 4.2.12.

It may not be a cure-all, but every little bit helps.

18

I have been required to work under an order of precedence substantially similar to that of the initial post (included in the Owner’s 00700) for over ten years and 500 plus projects. We have adjudicated a number of disputes in that time. Going from memory only, I believe I can report that the money saved to the client was far greater than the money paid out,chiefly through prevention of the “excluded middle” (2 conflicting things required, 0 things bid). Precedence order ensures that “something” is included, whereas the AIA documents do not. Interestingly, most Owner-prepared General Conditions that I see include precedence orders,could this mean that Owners may be weary of Architects designing the project during construction by deferring critical decisions?

In general, specifications tend to be prepared by more experienced staff, often with a close eye on the program, while drawings, even large-scale details, tend to be prepared by drafting staff and may not be studied closely by the senior architect, so in my experience, the specification tends to be more likely to be “most correct”, which is good, since it is listed higher.

I may stop short of advocating an order of precedence, (after all, who wants to run against the AIA) but I will not be afraid of working with one in 00700 or 00800 if the client requests or requires.

The key to doing good work as architect or specifier in either scenario is to know your ground.