Editor's Note: CSI is pleased to publish this blog from Ken Lambert, current CSI Chapter President in New Hampshire. If you have an idea or opinion you would like to share with your colleagues in the construction industry, please contact CSI Content Strategist Peter Kray at Pkray@csinet.org. He would love to help publish your thoughts.
Those who have beaten up by contract language at some point or another are likely aware of the written “order of precedence,” which is often specifically listed and included within a construction contract. The “order” is basically a prioritization that must be utilized should there be a technical or other discrepancy somewhere within the vast array of contract documents for a project.
For example, I was recently vetting a project I was going to be bidding, and within the draft contract I received was actually this following precedence order:
- Direct and specific edict from God (or the spiritual being of your choosing)
- This agreement
- Addenda to this agreement
- Project specifications
- Project drawings
- Owner-furnished information related to the Project
- What Chuck the Superintendent said outside the job trailer
I had to respect the attempt at bringing some humor to the topic of contractual obligations and project delivery. Apparently “But Chuck told me I could use 3,000-pound concrete for the slab” is not going to hold water anymore.
Seriously though, these written rankings are important to review. Here is the typical order as suggested by AIA:
- 188.8.131.52 In the event of conflicts or discrepancies among the contract documents, interpretations will be based on the following priorities:
- The agreement
- Addenda, with those of later date having precedence over those of earlier date
- The supplementary conditions
- The general conditions of the contract for construction
- Division 1 of the specifications
- Drawings and Divisions 2–49 of the specifications
- Other documents specifically enumerated in the agreement as part of the contract documents.
Another common ordering is from Consensus Docs 200, which simply states:
Two things with respect to the next line:
14.2.2 In case of conflicts between the drawings and specifications, the specifications shall govern….
Some interesting commentary on the above two widely used clauses are that oftentimes the project specifications take priority over the project drawings. In my career, I have found more errors and “copy-and-paste syndrome” in specifications than within the blueprints, so this seems a bit odd.
Also, it is clear that the general/non-trade specific specs take priority over the trade/division specs (masonry, finishes, electrical, etc.). Many subcontractors do not really read the Division 1 Specifications for a project, and to be honest some GCs don’t pay much attention to it either. That approach is at their own peril.
The signed agreement between parties (owner and GC/CM) is often the most important document—regardless of what is within the project specifications or the project drawings, etc.
As a non-lawyer, I think it is both funny and disturbing that the AIA acknowledges with its list that there are many levels and likelihoods of discrepancies and/or falsehoods cropping up within any construction project. Project delivery is fairly complicated, as is the needed design, but it is a bit alarming that the given design professional realizes that there is a solid chance that not all contract documents will jive with each other.
One thing is for certain: Unless it is in writing (and even then), don’t bank on what Chuck told you to do!
(Writer’s Note: This article is in no manner demeaning any persons named Chuck within the AEC industry.)