More on Precedence

Archive of Older Topics Archive - Specifications Discussions #2
1

This is an extension of a previous thread from May 2005 which can be reviewed at: http://discus.4specs.com/discus/messages/23/1644.html

I really havent found any discussion on what happens when there are discrepancies between documents other than Drawings and Specifications, like between the Agreement (Contract) and the Drawings, or the Conditions. A201 states Contract Documents are complementary and what is required by one shall be as binding as if required by all. Sounds good so far, but

We have a client now who had an issue come up with another Architect who listed an order of precedence similar to what is recommended in the AIA A511, Guide For Supplemental Conditions, which went something like this:

"1.2.1.1 PRECEDENCE OF THE CONTRACT DOCUMENTS
The most recent issued Document takes precedence over previous issued forms of the same Document. The order of precedence is as follows with the highest authority listed first.
.1 The Agreement
.2 The Addenda
.3 Conditions of the Contract, Drawings, and Specifications shall have equal authority

Dont hold me to these facts, but the issue was something like this: The Architect had specified an Allowance for a portion of underground utility work and their connection to existing on-site utilities, since the full extent and exact location was unknown at the time of bidding. However, they also showed the scope of work on the drawings, indicating approximate locations of existing underground utilities, with the new connections. When they uncovered the existing utilities, low and behold they werent where they were shown on the drawings.

Now, the Agreement specifically stated as part of the requirements for the Work that site utility work as indicated on the Drawings was included in the Contract. Long story short, when the time came to do the work, because of that Contract clause, the Contractor felt he was only responsible for what was shown on the drawings, and he did not include the Allowance for that item in his proposal. As it turns out, he could not provide what was shown on the drawings so he wanted a change order to make it work. The Owner and Architect argued that because the drawings and specs are complementary, then the Contractor should have included the Allowance. But, thats the tricky part; the Contract specifically addressed that one issue referring to the drawings only, hence the discrepancy. It did not specifically state site utility work as indicated on the Drawings and in the Specifications.

Obviously, the Agreement can not address all the specifics of a project. It therefore includes the drawings and specs, and other Contract Documents, by reference, which defines the Work. What happens when the discrepancy is between the Agreement and the other documents? Was the Contractor correct, or the Owner?

2

Which is why precedence is discouraged.

A201 Article 4.2.11, 4.2.12, and 4.3.2 should be sufficent guide to allow the Architect to determine what is the most consistent use of the documents as a whole for a given situation.

3

Try this thought experiment, in the tradition of Galileo and Einstein:

  1. Sometimes the general must take precedence over the particular. Example: Div 01 submittal requirements must override careless procedural language often found in individual sections.

  2. Sometimes the particular must take precedence over the general. Example: Extra copies of shop drawings required in M & E sections must override general submittal requirements in Div 01.

  3. There is danger of error in stating that either agreement, conditions of the contract, drawings, or specifications take precedence over all the other documents in the contract.

  4. Why not resort to reasonasble interpretation instead?

  5. There ARE principles of interpretation, supported by such statutes as the federal Restatement of the Law of Contracts. Some of these principles are familiar to us, as, “seek the reasonable interpretation”, “read the contract as a whole”, “let no language be rendered meaningless”, “do not stop with the reading of one phrase when it is modified by another”, and “interptret so as to avoid conflict”.

  6. In such a climate, it makes sense to consider the parts of a contract as compementary, as the AIA and EJCDC general conditions state.

End of thought experiment.

Practically speaking, I’ve always wondered how any court could want specifications to take precedence over drawings when the specs are started late, often without the history of the design to date, copied fresh from a generic master or from another job, then rushed to completion with little time for modification and almost none for coordination, while the drawn details are still in flux and questions by the spec writer lie unanwered beneath the pile of papers on the project architect’s table.

4

It’s because most lawyers can read specs but do not have the skill to read drawings.

5

What’s the difference between a Plan Room and a Court Room?

They read specs in a Court Room.

Most PEOPLE can’t read drawings, but think they can read the written word.

6

In the case that Brett cites, it certainly sounds like the Contractor was correct. (Though, there may be other clauses contract to counter the contractor’s argument.) Shame on the owner and his or her attorney, if they prepared these Division 00 Documents and then were unhappy with the result they produced. Also, this illustrates that careful location of subject matter is crucial to a well constructed set of construction documents. The cited clause was poorly written and probably wasn’t even needed. If it had said “Documents” rather than “Drawings” the outcome would have been as desired. But why list out specific items at all in the general conditions??

Following up on Tom’s comments, the courts can and do establish “order of precendence” based upon legal principles, one of which is “specific controls general.” So with or without, one may be imposed if it reaches a judge. Orders of precedence don’t worry me or bother me all that much, but they do need to be carefully considered when putting together the documents. In reality, the typical order of precedence merely codifies the likely weight I would give in making an interpretation anyhow. For example, you can’t really use a small clause in some Division 01 Section to override a contract clause.

The interesting thing about careful and proper interpertation of the documents is that it won’t always go the way the architect wants it too. I, too, have reluctantly conceeded the contractor’s claim on a few occasions when such orders of precedent went against “me.” On the other hand, contract interpretations can and do often support the architect’s or owner’s position. It can never be perfect, but this is where the “clear” part of CSI principles comes in, and why it’s so hard to do.

I also believe that architects and owners are for some reason more reluctant to study the documents carefully and ferret out claims that could be made against the contractor for work they did not perform. In some cases, it may be that the work in place is acceptable, but a credit is still due for items that weren’t required. Vigorous pursuit of these items can even things up a bit.

7

I attended the presentation How the Courts Interpret Specifications by Jerry Katz at last years CSI convention, and found it to be a great overview of the explicit and implied precedence that exists in case law, as mentioned by Tom and John above. I see where Katz is presenting again this year, so Id recommend his seminar if you are going to Las Vegas next month.

One key to Katzs presentation was that the courts use their established principles of precedence only in the absence of other information to interpret ambiguous contract requirement. If your contract documents do their job, if your specifications are clearly written and coordinated, then the court uses what is in your documents (the contract) and the other case law principles never come into play.

Meanwhile, around the office, we are still wresting with the conflict between Canada, where there is a long established tradition of stated precedence within contract documents, and the US, where there is not. See Precedence in Canada