This is the third in a three-part series on this blog addressing interpretations and clarifications of construction documents, comprised of: (a) Part 1 – Introduction to Resolving Conflicts, Ambiguities, and Discrepancies in Construction Documents; (b) Part 2 - Procurement and Construction Stages, and (c) Part 3 - “Order of Precedence” Clauses. Provisions in construction contracts establishing the priority order in which the contract documents take precedence and will be interpreted, often known as “order of precedence” clauses, are quite common. Drafters of construction contracts who include such clauses are often seeking to reduce the potential for bidding or procurement stage requests for interpretation or clarification (RFIs) and construction stage RFIs, as well as construction stage changes, claims, and disputes.

However, “order of precedence” clauses can be more complex than many drafters of construction contracts may initially believe, and can, in fact, be a two-edged sword with as much potential to injure or dismay the owner and design professional as often as such clauses work to the benefit of the owner and the project.

Advantages and Drawbacks of “Order of Precedence” Clauses

The principal advantages of order of precedence clauses are: 

• They may reduce the potential for construction stage contract modifications, such as change orders, because order of precedence clauses may provide greater clarity at the time of pricing. Rather than having to guess or assume which conflicting or ambiguous requirement applies to a given element of the work, an order of precedence clause may give the bidder or proposer clear direction on pricing. However, this advantage may cut both ways, as discussed below, relative to drawbacks. 
• Order of precedence clauses may reduce the quantity of procurement stage and construction stage requests for interpretation or clarification (RFIs), by automatically establishing which conflicting provision governs. This advantage may result in giving with one hand while taking with the other, as further discussed below, relative to drawbacks.

Drawbacks associated with order of precedence clauses include the following: 

• Order of precedence clauses have the potential to muddy the waters concerning which documents constitute “the Contract Documents”. 
• Order of precedence clauses can work against the interests of the owner and the project. By automatically establishing which conflicting provision governs, an order of precedence clause could potentially result in an assignment of priority between conflicting provisions that is not intended by the owner and design professional and, consequently, yields an outcome that is inconsistent with the owner’s or project’s design intent.
• Order of precedence clauses may obviate or supersede a construction contract’s requirements for bidders and the contractor to submit RFIs in the event of a conflict, ambiguity, or discrepancy in the construction documents. 
• When order of precedence clauses include language to the effect of, “the most-stringent”, or, “the most-expensive” provision governs, the project’s contract price is likely to be greater than when the contract omits such language. 

Each of these is briefly discussed below. 

Muddying the Waters Regarding What Constitutes the Contract Documents: Optimally, a construction contract should indicate at only one location what constitutes the Contract Documents. When the contract includes multiple listings of what constitutes “the Contract Documents”, there may be potential for the contractor, or its legal counsel, to contend that one or more elements intended by the owner as part of the construction contract were not actually contractual obligations. The potential adverse effect of this on the project, owner, and design professional is obvious. Because most order of precedence clauses reviewed by this writer are separate from the contract’s enumeration of what constitutes the contract documents, order of precedence clauses have the potential to be interpreted, by a court or arbitrator, as establishing an alternative listing of what constitutes the contract documents. Almost all order of precedence clauses reviewed by this writer either incorporated additional elements not present in the contract’s principal listing of the contract documents, or, worse, omitted documents the owner intended as part of the construction contract. Such discrepancies have the potential to lead to varying, and possibly unintended, interpretations of what constitutes the contract documents.

Work Against the Interest of the Project: By imposing an automatic, one-size-fits-all interpretation, order of precedence clauses have as much potential to work against the interests of the project, owner, and design professional, as to their benefit. As a highly experienced design professional and construction contract expert has repeatedly asserted to this writer, “If I knew, at the time I was developing the construction documents, where a mistake would be made, then I could write an appropriate order of precedence clause.”  For example, if an order of precedence clause stipulated that the drawings take precedence over the specifications, and the drawings required stainless steel fastening hardware in a corrosive environment, but the specifications required carbon steel fastening hardware, then the contractor would be obligated to provide only carbon steel hardware. Such a scenario would likely reduce the project’s service life.

Obviating or Superseding Contract Requirements to Submit RFIs: Order of precedence clauses may obviate or supersede contractual requirements for the contractor to submit RFIs and obtain interpretations or clarifications in the event of a conflict, ambiguity, or discrepancy in the contract documents, because such clauses provide an automatic interpretation. By inherently rendering such an interpretation, without involving the design professional, there is essentially no conflict, ambiguity, or discrepancy.  The following excerpt, from Florida Construction Legal Updates, discusses a relevant case well-known among construction law attorneys: 

“To illustrate the application of an order of precedence provision, in Hensel Phelps Const. Co. v. U.S., 886 F.2d 1296 (Fed. Cir. 1989), a prime contractor sought an equitable adjustment of its contract. The contractor relied on an order of precedence provision that required the specifications to govern over any conflict between the drawings and specifications (see routinely incorporated F.A.R. 52.236-21).  In this case, the specifications called for a minimum of 18” of fill under concrete floor slabs; however, the drawings called for 36” inches of fill. The contractor priced the job with the 18” of fill.  During construction, the contracting officer directed the contractor to install 36” of fill which triggered the equitable adjustment. The government, however, argued that the contractor knew of this discrepancy all along. The Federal Circuit Court nevertheless held that the contractor should be entitled to an equitable adjustment since the specifications had priority over this direct conflict:

“’Reliance was properly placed on the order of precedence clause to resolve a discrepancy between the specifications and the drawings and this resolution was reflected in the bid. When the government insisted on 36 inches of fill, rather than the 18 inches called for in the specifications, the contractor was required to perform more work than the contract required and more than its bid price contemplated. Consequently, on the record here neither Hensel Phelps [prime contractor] nor Watts [subcontractor] can be said to have profited or otherwise benefited by reliance on the order of precedence clause.” Hensel Phelps, 886 F.2d at 1299.” 

Increased Construction Costs: By automatically rendering an interpretation, order of precedence clauses, especially those that include language requiring that the “more-stringent” or “most-expensive” conflicting requirement governs, may result in bidders or proposers adding hidden contingencies into their prices. The owner will wind up paying for such hidden contingencies, regardless of whether conflicts, ambiguities, or discrepancies exist and have a real effect on costs during construction. Despite the Spearin Doctrine, a prudent bidder or proposer is virtually obligated to include some type of hidden contingency to cover the effect of automatic interpretations resulting from order of precedence clauses. Unfortunately, there is usually no appropriate means for the owner or design professional to identify the amount of such hidden contingencies, whether at the time bids or proposals are submitted, or in the ensuing schedule of values required at the start of the construction stage.

Examples of “Order of Precedence” Clauses

Order of precedence clauses come in many forms and levels of detail. Presented below are several examples from construction contracts reviewed by this writer. Standard contract documents in widespread use in the United States, such as those published by the American Institute of Architects (AIA) and Engineer’s Joint Contract Documents Committee (EJCDC) do not include order of precedence clauses, except that AIA A503—2017/2019, Guide for Supplementary Conditions, includes a very-basic, high-level, potential order of precedence clause associated with Section 1.2 of AIA A201—2017, Standard General Conditions of the Contract for Construction”.  Section 1.2.1.2 of AIA A503 is discussed further, below, in this article’s section titled, “Precedence Clauses in Widely-Used Standard Contract Documents”. 

Example 1

“Not withstanding any other language to the contrary contained in the contract documents, in case of an inconsistency between drawings and specifications or within either document not clarified by addendum, the better quality or greater quantity of work shall be provided.“

Evaluation of Example 1: The above example is a requirement relatively common in non-standard construction contracts where the order of precedence clause obligates the contractor to provide something like “better quality or greater quantity of work”. Other, similar clauses reviewed by this writer obligate the contractor to provide the “more-expensive” of the conflicting requirements, or to comply with the “more-stringent” requirement. Ultimately, provisions like Example 1, may cause bidders and proposers to add hidden contingencies to their bid prices, which the owner will end up paying regardless of whether the construction documents include conflicts, ambiguities, or discrepancies.

Example 2

“In case of any conflict or inconsistency between the Plans and Specifications, the Specifications shall govern.  Any discrepancy between the Specifications and Drawings shall be submitted by the Contractor to the Engineer.” 

Evaluation of Example 2: The example, above, is relatively common. In some cases, such provisions require that specifications govern over the drawings and, in others, drawings govern over the specifications. An interesting twist in Example 2 is that, immediately after establishing an order of precedence, which appears to create an ironclad interpretation of whether the drawings or specifications govern, the provision contradicts itself by subsequently requiring that conflicting matters be submitted for a written interpretation, seemingly obviating the order of precedence established in the first sentence.

Example 3

“In case of a conflict among the contract documents listed below in any requirement(s), the requirement(s) of the document listed first shall prevail over any conflicting requirement(s) of a document listed later. 

“(1) Addenda in reverse chronological order; (2) Detailed Specifications; (3) Standard Specifications; (4) Plans; (5) General Conditions; (6) Contract; (7) Bid Forms; (8) Bond Forms; (9) Proposal.”

Evaluation of Example 3: The above is a relatively common order of precedence variant. Such provisions are often inconsistent with indications, elsewhere in the construction contract, of what exactly comprises the contract documents. Like many order of precedence clauses, Example 3 includes things like, “standard specifications” and “detailed specifications”, the meaning or intent of which is often unclear.

Example 4

“Technical specifications take priority over general specifications and detail drawings take precedence over general drawings. Special Conditions take precedence over General Conditions. Any conflict or inconsistency in the drawings shall be submitted by the Contractor to the A/E, with a copy to the Owner, whose decision thereon shall be conclusive. In case of conflict or inconsistency between the drawings and the specifications, the specifications shall govern.”

Evaluation of Example 4: Above is another example frequently observed by this writer. In Example 4, the intent of terms like, “technical specifications” versus "general specifications”, and “detail drawings” versus "general drawings” is unclear, because elements of the contract documents are rarely so labeled. Example 4 also establishes multiple orders of precedence, but then, like Example 2, requires submitting the matter for interpretation. A unique aspect of Example 4 is that it seems to empower the owner to either render interpretations or overrule the design professional’s (“A/E”) interpretations, which might transfer to the owner some of the design professional's risk. However, the meaning of the words, ““shall be submitted by the Contractor to the A/E, with a copy to the Owner, whose decision thereon shall be conclusive”, is unclear, because it may be interpreted that either the A/E’s, or the Owner’s, decision is final.

Example 5

“In case of discrepancy, the governing order of the documents shall be as follows:

“1.  Written Interpretations

“2.  Addenda

“3.  Specifications

“4.  Supplementary Conditions to the General Conditions

“5.  General Conditions

“6.  Approved Shop Drawings

“7.  Drawings

“8.  Referenced Standards.

“Written/computed dimensions shall govern over scaled dimensions.” 

Evaluation of Example 5: Unique aspects of the example, above, include: (1) Previously-issued written interpretations appear to be elevated to the status of contract modifications, because they appear to be given the status of contract documents. Interestingly, Example 5 entirely omits contract modifications, such as change orders. (2) “Approved shop drawings” (which may exclude other types of contractor submittals, such as product data) also appear to be elevated to the status of contract documents because, in Example 5, they take precedence over “the drawings”. Both AIA and EJCDC standard contract documents expressly indicate that shop drawings and other contractor submittals, whether or not approved by the design professional, are not contract documents, because contractor submittals are not prepared, sealed, or signed by the design professional. (3) In Example 5, the meaning and intent of “referenced standards” is unclear. The term might mean third-party reference standards, such as those published by ASTM, AWWA, AISC, IEEE, and others, or it might refer to the local department of public works’ construction standards, or something else.

Example 6

“Priority of Contract Documents. In case of conflict between Contract documents, priority of interpretation shall be in the following order: signed agreement (or Contract), performance and payment bonds, proposal, special provisions (or conditions), advertisement for bids (or invitation to bidders, or request for proposals), project (or Contract) drawings, Standard Specifications from Public Works Construction Standards • [owner name redacted] Standard Drawings from Public Works Construction Standards • [owner name redacted] referenced specifications.” 

…” In cases of discrepancies, figured dimensions shall govern over scaled dimensions; plans shall govern over Standard Specifications, special provisions shall govern over both plans and Standard Specifications.”

…” Errors and Corrections in Drawings and Specifications. The Engineer shall be permitted to make such corrections or interpretations as may be necessary for the fulfillment of the intent of the Contract documents. The CONTRACTOR shall not take advantage of any apparent errors, omissions or discrepancies in the drawings or specifications. In case of any errors, omissions or discrepancies in the drawings or specifications, the CONTRACTOR shall promptly submit the matter to the OWNER who, in turn, shall promptly make a determination and issue the necessary instructions in writing. Any adjustment by the CONTRACTOR without this determination and instructions shall be at the CONTRACTOR'S own risk and expense. The work is to be made complete as intended by the Contract documents.” 

Evaluation of Example 6: The above contains an array of precedence clauses, collected from a single construction contract, and is both lengthy and somewhat confusing. Among its more notable aspects are: (1) The provision establishes a public works department’s “standard specifications”, “standard drawings”, and “referenced specifications”, as taking precedence over drawings and specifications that may have been prepared specifically for the project. However, a subsequent provision in the same construction contract indicates, “plans shall govern over Standard Specifications”. (2) Like Examples 2 and 4, above, Example 6 establishes a fairly complex priority order of the construction documents, but also requires that conflicts, ambiguities, and discrepancies, be submitted to the owner for interpretation, which appears to conflict with the order of precedence clauses themselves. (3) Example 6 includes, “The CONTRACTOR shall not take advantage of any apparent errors, omissions or discrepancies in the drawings or specifications.” This writer has observed such language in a number of non-standard construction contracts. The intent of such provisions is unclear, although it is likely meant to furnish the owner a contractual basis for denying contractor change proposals and claims arising from conflicts, ambiguities, discrepancies, errors, and omissions in the construction documents. The extent to which such a clause would be enforceable is unclear.

Example 7

“In resolving such conflicts and discrepancies, the documents should be given preference in the following order:

“a. Agreement

“b. Change Orders

“c. Specifications

“d. Drawings

“e. Other materials included in the bid documents (e.g. geotechnical reports)”

“Within the specifications, the order of precedence is as follows (note that not all elements listed are included in all contract documents):

“a. Addenda

“b. Special Conditions

“c. Special Notes

“d. Notice to Bidders

“e. Instructions to Bidders

“f. Proposal

“g. Bid Bond

“h. Performance and Labor and Material Bonds

“i. General Conditions

“j. Technical Specifications

“k. Standard Specifications (e.g. [state identity redacted] DOT Standard Specifications)

“l. Requirements of other agencies (e.g. FAA Advisories)

“With reference to the drawings, the order of precedence is as follows:

“a. Figures govern over scaled dimensions

“b. Detail drawings govern over general drawings

“c. Change order drawings govern over contract drawings

“d. Contract drawings govern over standard drawings

“e. Contract drawings govern over shop drawings

“In no case shall the CONTRACTOR proceed with the Work in uncertainty.  Any Work done by the CONTRACTOR after the discovery of any conflict or discrepancy, until authorized, will be at the CONTRACTOR’S risk and responsibility.”

Evaluation of Example 7: The author of the complex order of precedence clauses, above, seems to have attempted addressing as many problems as could be envisioned. Notable aspects of this provision include: (1) The following appears to be elevated to the status of a contract document, “Other materials included in the bid documents (e.g. geotechnical reports)”. Exactly what is meant by “other materials included in the bid documents” may be open to interpretation, although geotechnical reports were expressly included. Ordinarily, resource information about the site, such as results of subsurface investigations, record documents from prior projects, results of investigations for hazardous materials, and similar documents are neither intended to be part of the contract documents, nor are they typically bound into the project manual. (2) The phrase “note that not all elements listed are included in all contract documents”, is remarkable, because, at the very least, it muddies the waters of what might be considered as part of the construction contract. (3) The meaning of the term “special notes” is unclear. (4) Documents related to the bidding or procurement stage, such as the notice to bidders, instructions to bidders, bid bond, and others, take precedence over items routinely considered to be part of the contract documents, such as the general conditions, which is somewhat unique. (5) “Requirements of other agencies” appears to be elevated to the status of contract documents, although exactly what this comprises or means is unclear. (6) The order of precedence of the drawings further muddies what comprises the contract documents, and presents another example where contractor shop drawings may, potentially, be elevated to the status of contract documents. 

Example 8

“Limitations Of Drawings. The drawings show conditions as they are supposed or believed by the Owner to exist, but are not intended to be or inferred to be that the conditions as shown thereon constitute a representation or warranty expressed or implied by the Owner that such conditions actually exist. The Owner shall not be liable for any loss sustained by the Contractor as a result of any variance between the conditions as shown on the drawings and the actual conditions revealed during the progress of the work, except as indicated in paragraph 5.16. In case of difference between small- and large-scale drawings, the large-scale drawings shall govern. In cases of difference between drawings and specifications, the specifications shall govern.” 

Evaluation of Example 8: Much of Example 8’s, unique order of precedence clause attempts to assign to the contractor risks associated with discrepancies between the drawings and actual site conditions, which appears to contradict the Spearin Doctrine. 

Example 9

“Shop Drawings, when approved by the Engineer, shall govern all details of the work, taking precedence over all other drawings. […] Figured dimensions on drawings shall take precedence over measurements by scale.  Detailed working drawings shall take precedence over general drawings and shall be considered as explanatory of them and not an indicating extra work.”

Evaluation of Example 9: The example provision, above, appears to elevate the contractor’s shop drawings to the status of contract documents, by expressly indicating they take precedence over “all other drawings”. As discussed in the evaluation of Example 5, above, both EJCDC and AIA standard contract documents expressly indicate that contractor submittals, whether or not approved by the design professional, are not contract documents. Example 9 appears to omit other types of contractor submittals, such as product data and samples, so the exact meaning of, “shop drawings” is unclear. Shop drawings and other contractor submittals should not be considered as contract documents, nor should they take precedence over the contract documents prepared by the design professional. Rather, contractor submittals are intended only to demonstrate how the contractor proposes to comply with the contract documents (see “Shop Drawings and Submittals: Definition, Purpose, and Necessity”, and “Shop Drawings and Submittals—Deviations from Contract Requirements”, previously published on this writer’s blog). Furthermore, Example 9, includes, “Detailed working drawings shall take precedence over general drawings”, which is unclear. “Working drawings” may imply coordination drawings prepared by the contractor or its subcontractors, which are typically not submitted to the design professional and, of course, should not have the status of contract documents. The meaning of, “general drawings” is unclear. Ultimately, the only drawings that should be considered part of the contract documents are those prepared under the supervision and control of the design professional-in-responsible-charge, and are appropriately sealed and signed by such individual. 

The foregoing are only selected examples. Order of precedence clauses vary considerably from one organization to the next, and can introduce more concerns and potential problems than discussed in the evaluations presented above. 

Precedence Clauses in Widely-Used Standard Contract Documents

None of the standard owner-contractor agreement forms, nor the standard general conditions, published by AIA and EJCDC include comprehensive order of precedence clauses. In fact, AIA A201—2017, Standard General Conditions of the Contract for Construction, includes the following in Section 1.2.1: “The Contract Documents are complementary, and what is required by one shall be as binding as if required by all”. Similarly, EJCDC C-700—2018, Standard General Conditions of the Construction Contract, Paragraph 3.01 (“Intent”), indicates, “The Contract Documents are complementary; what is required by one Contract Document is as binding as if required by all.” 

The foregoing, quoted provisions of EJCDC C-700 and AIA A201 are very important, powerful clauses. Together with AIA A201—2017, Sections 4.2.11 through 4.2.14, and EJCDC C-700—2018, Paragraphs 3.03 and 3.04, these provisions establish that the construction documents are intended as an integrated, coordinated whole, where resolution of conflicts, ambiguities, and discrepancies in the contract documents is to be impartially determined by the design professional (for additional information on this, see “Interpretations and Clarifications: Part 1 – Introduction to Resolving Conflicts, Ambiguities, and Discrepancies in Construction Documents”, previously published on this writer’s blog. 

EJCDC C-001—2018, Commentary on the 2018 EJCDC Construction Documents, includes the following (bracketed text, below, is not present in the original and was included here for clarity): 

“EJCDC generally discourages use of “order of precedence” provisions, because a rigid, predetermined order of precedence will work against the correct intent and a fair result as often as it works to their benefit. The limited exceptions to this are: 1) [EJCDC] C 700 [Paragraph] 3.01.C, which indicates that in the event of a discrepancy between printed or electronic/digital versions of the Contract Documents, the printed version shall govern; and 2) [EJCDC] C 700 [Paragraph] 3.03.B, which establishes that the Contract Documents drafted or furnished by the Engineer (essentially the Drawings and Specifications) take precedence over reference standards, standard specifications, manuals, and similar items whose requirements have perhaps been incorporated by reference.”

Also, EJCDC C-523—2018, Construction Subcontract, includes Paragraph 2.02 (“Precedence of Subcontract”), which states, “If a provision of this Subcontract conflicts with a provision of the Prime Contract, the terms of this Subcontract govern, unless under controlling laws the conflicted provision of the Prime Contract cannot be waived.” EJCDC’s rationale for this is that the prime contractor may consciously elect to enter into a construction subcontract that, in certain ways, is inconsistent with the prime contract. As just one example, a small subcontract for something like, say, striping a new parking lot, may interest only smaller, specialized subcontractors, who may be unable to furnish liability insurance in accordance with the insurance provisions of the prime contract. In such a situation, the clause of EJCDC C-523—2018, quoted above, would allow the prime contractor to knowingly retain the small subcontractor with deficient insurance coverage, with the prime contractor assuming the associated risk. 

Similar to EJCDC C-523, AIA C401—2017, Standard Form of Agreement Between Contractor and Subcontractor, Article 2, states in part (bracketed text is not present in the original and was included here for clarity): “…Where a provision of such documents [the prime contract] is inconsistent with a provision of this Agreement, this Agreement shall govern.” AIA’s rationale for including this is likely the same as EJCDC’s reasons for including the parallel provision in EJCDC C-523. 

AIA A503—2017/2019, Guide for Supplementary Conditions, appears to be AIA’s principal location for presenting guidance on order of precedence clauses. A503 essentially discourages contract drafters from incorporating order of precedence clauses but, in the event one is desired, A503 presents a basic order of precedence clause that is one of the better such clauses seen by this writer, although it still has problems (bracketed text, below is not present in the original and was included here for clarity): 

Ҥ 1.2 Correlation and Intent of the Contract Documents

Ҥ 1.2.1 The AIA General Conditions do not establish a system of precedence among the Contract Documents, but provide that all documents are complementary. In the event of inconsistencies among the Contract Documents, the Architect is to interpret them to reflect the design intent. Establishing a fixed order of priority is not recommended because no one document constitutes the best authority on all issues that may arise. The order shown here is suggested for consistency in the event an Owner insists on establishing a precedent. Note that this modification does not establish a precedent between Drawings and Divisions 2 through 49 of the Specifications, which together describe the Work.

“Add Section 1.2.1.2 to Section 1.2.1 [of the General Conditions]:

“Model Language:

Ҥ 1.2.1.2 In the event of conflicts or discrepancies among the Contract Documents, interpretations will be based on the following priorities:

“.1 Modifications.

“.2 The Agreement.

“.3 Addenda, with those of later date having precedence over those of earlier date.

“.4 The Supplementary Conditions.

“.5 The General Conditions of the Contract for Construction.

“.6 Division 1 of the Specifications.

“.7  Drawings and Divisions 2-49 of the Specifications.

“.8 Other documents specifically enumerated in the Agreement as part of the Contract Documents.

“In the case of conflicts or discrepancies between Drawings and Divisions 2-49 of the Specifications, or within or among the Contract Documents and not clarified by Addendum, the Architect will determine which takes precedence in accordance with Sections 4.2.11, 4.2.12, and 4.2.13 [of the General Conditions].”

While A503’s model language, presented above, appropriately allows the architect to render interpretations in the event of “conflicts or discrepancies between Drawings and Divisions 2-49 of the Specifications, or within or among the Contract Documents and not clarified by Addendum”, it nevertheless presents a notable drawback: It adds what might be interpreted as a fourth listing of what constitutes “the Contract Documents”, with the others at A201—2017 Section 1.1.1, and AIA A101—2017, Standard Form of Agreement Between Owner and Contractor (Stipulated Sum), Article 1 and Section 9.1. Discrepancies may exist between the listings of what comprises the contract documents in A101 and A201, and the introduction of what might be construed as a fourth listing, via the model language of A503 Section 1.2.1.2, might contribute to potential misinterpretations of what is intended as “the Contract Documents”. 

Another, although probably less-important, drawback of the suggested order of precedence clause in AIA A503 is the consequences of the Division 01 specifications taking precedence over the specifications of Divisions 02-49. In some cases, it may be desirable for Division 02-49 sections to have precedence over Division 01.  In cases where the Division 01 specifications were prepared by a third-party, such as a construction manager as advisor, the model language of A503 would make requirements drafted by the third-party a priority over the design professional-developed, sealed, and signed specifications of Division 02-49, which may have unintended consequences. Also, A503 gives the general conditions precedence over the Division 01 specifications. In fact, the general conditions in Division 01 should have equal precedence, similar to how A503 assigns equal standing to the drawings and Division 02-49 specifications, because Division 01 typically augments the general conditions. 

Finally, the order of precedence clause set forth in A503 omits the performance bond and payment bond, when such bonds are required by the contract. In many cases, the requirements of the bonds, such as AIA A312—2010, Performance Bond and Payment Bond, as well as EJCDC C-610—2018, Performance Bond, and EJCDC C-615—2018, Payment Bond, essentially supersede selected provisions of the general conditions. For example, a performance bond typically comes into effect only after the owner has issued a notice of termination for cause. In such event, the provisions of the associated performance bond will typically supersede selected provisions of the general conditions concerning termination for cause. In fact, language more-or-less to this effect is included in EJCDC C-700—2018, Paragraph 16.02.G. Accordingly, an order of precedence clause, when incorporated into the contract documents, should include the performance bond and payment bond, when such bonds are required under the contract.

Conclusions

Despite their relatively common frequency of use, order of precedence clauses often present more drawbacks than advantages, and, when incorporated into the contract, have potential to work against the interests of the project and owner as often as to their benefit. Order of precedence clauses may be written in an impressive array of different approaches, styles, and intent, many of which have associated drawbacks. For this reason, standard contract documents in widespread use in the United States, such as AIA and EJCDC, typically do not include order of precedence provisions. When such clauses are incorporated into a construction contract, they should be written with appropriate care, professional judgement, and foresight, with the understanding that they may often be a two-edged sword. 

Acknowledgements: The author gratefully acknowledges the assistance of James K. Lowe, Jr., Esq., who kindly reviewed and commented on drafts of this article. Mr. Lowe is an attorney and licensed professional engineer (VA, emeritus), who has more than 45 years’ experience in the A/E industry. The author is solely responsible for the content of this article. 

Original text Copyright 2025 by Kevin O’Beirne

The content of this blog post is by the author alone and should not be attributed to any other individual or entity.

The author of this blog post is not an attorney and nothing in this blog post constitutes legal advice. Readers in need of legal advice should consult with a qualified, experienced attorney.

Kevin O’Beirne, PE, FCSI, CCS, CCCA, is a professional engineer licensed in NY and PA with over 35 years of experience designing and constructing water and wastewater infrastructure for public and private clients.  He is the engineering specifications manager for a global engineering and architecture design firm.  He has been a member of various CSI national committees and is the certification chair of CSI’s Buffalo-Western New York Chapter.  He is an ACEC voting delegate in the Engineers Joint Contract Documents Committee (EJCDC) and lives and works in the Buffalo, NY, area. Kevin O’Beirne’s LinkedIn page.