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mattoon (Civil/Environmental) (OP)
2 Apr 08 16:44
If there is a conflict between the drawing and the specification. Which do you use?
JoeTank (Structural)
2 Apr 08 16:50
That shoulkd be addressed by the project specs.  Normally it goes... Contract, Specifications, Drawings... if descending order of priority.

Joe Tank

Helpful Member!  RWF7437 (Civil/Environmental)
2 Apr 08 17:09
"The plans, specifications, shop drawings and other contract documents are intended to completely describe the work. Conflicts among them easily can, and do, arise. Many specification writers attempt to resolve these in advance by declaring an order of precedence among them. Typically, this may read something like this:

"If there is a conflict between contract documents, the document highest in precedence shall control. The precedence shall be: first, permits from other agencies as may be required by law, second , Special Provisions, third, Plans, fourth……………………………………. Sixth, reference specifications."

Recently the trend has been away from such specific requirements for one simple reason. We do not know, before they are revealed, what problems will arise. Declaring a specific order presumes we know how best to solve a problem, before we know what the problem is!

Consider using a different approach. The following has been found to work well on many contracts and is suggested.

"If a conflict, error, omission, or lack of detailed description is discovered in the contract documents, the Contractor shall immediately notify the Engineer (Architect) and request clarification. The Engineer (Architect) will resolve the conflict and make any corrections or interpretations necessary to fulfill the intent of the plans and specifications."

good luck
whyun (Structural)
2 Apr 08 19:08
I agree that somewhere in the contract documents an order or precedence be clearly identified when conflict exists between drawings and specs.  Better way is to define the order of precedence AND have a contact-the-engineer/architect note RWF7437 suggests.  Alternately, one can specify that when conflict is encountered a more restrictive requirement shall govern.
hokie66 (Structural)
2 Apr 08 20:09
whyun's advice is good.  The contractor should be required to request clarification.  As to the precedence, I think the drawings should come first as they should always be job specific, with the specifications unfortunately sometimes boilerplate.
ptmoss (Civil/Environmental)
2 Apr 08 20:24
When the *&%#@$ hits the fan, the attorney's always seem to look to the written word, whether notes on the plan or written specifications.  I always try to put a couple notes about conflict & notification on the plans.
DRC1 (Civil/Environmental)
2 Apr 08 23:16
Courts will generally accept a reasonable interpretation of the drawings by the party who did not draft the documents. If you have the clause that the engineer interprets, that is probably best. However, generally the contractor would be entitled to a change order if cost or time is affected. I don't like the most restrictive clause. First, it is ocassionly subjective as to which answer is most restrictive, second, it really does not look at what is trying to being accomplished.
Generally the specs take precidence. Personally I would like to see the drawings have precidence, because as stated before, they are project specific and get a lot more review than the specs. What would be best would be for the engineer to point out the descrepancy to the engineer, and if the drawing is wrong, then dicuss a change.
gerhardl (Mechanical)
3 Apr 08 7:41

.. The question is in practice how to build or construct to the correct solution, and avoid later technical problems and/or conflicts costing time and mony.

As suggested by others, one way is to determine the 'rank' of the differentiating underlaying speciifcations. An other is, also as suggested, to specify the problem as 'a minor' technical problem within the contract specification to be solved 'in normal good engineering practice' by the contractor.

The best way, in my experience, is to clear any possible misunderstandings immideately, by communicating directly in writing with the counterparts top project responsible person.

Not saying that this solution is the best in all cases a formulation something like the one below has worked for me in several cases, if the question cant be solved by a simple mail or telephone conversation:

Urgent! Production stopped awaiting your clarification/answer on following: Contract (paper one) stating:xxxx, Drawing (paper two) stating yyyy. Please clarify within zzzz. Consequences of delayed answer:  (Production time will be prolonged aaaa, cost will be increased with bbbb / We reserve the right to require compensation for any cost or consequences / etc)

This will usually give a prompt response..

hokie66 (Structural)
3 Apr 08 7:51
That approach may get a prompt response, but it does not benefit the project in the long run, because threats are always remembered.  Just human nature.
cvg (Civil/Environmental)
3 Apr 08 12:05
when free and open communication is encouraged and facilitated, these issues usually get resolved well, regardless of what language is shown on the plans or specs.  that is the goal of partnering.  however, partnering is not always a priority and not all contractors, engineers or owners are good communicators.  they may also not fully read the plans or specifications.  This is where the problems begin.  Sometimes the resident engineer is different than the design engineer and in these cases sometimes think they know everything.  of course, they did not design it and probably have not read the entire spec. unless it is a really simple project, they can't possibly fully understand the project.
oneintheeye (Structural)
7 Apr 08 6:09
i always tool it as drawing overides spec. As a) drawing is more likely to be revised most recently b) the contractor cannot be expected to look at every drawing and compare with every clause in the spec. Would think it extremely harsh if the contractor is punished in court for following a drawing which if the engineer has carried out his duty properly should be correct.  
whyun (Structural)
7 Apr 08 13:19
People on the design side (engineers) tend to assume drawings should take precedence over specifications.  When I used to work for a multi-discipline firm, the in-house spec writer was insistent that specs take precedence over drawings.  For the time I worked for that firm, I took special care in reviewing the specs to ensure no conflict exists between my drawings and the specs.
Fulltimer (Civil/Environmental)
8 Apr 08 0:55
Specs always rule from my experience..........
oneintheeye (Structural)
8 Apr 08 6:56
I worked for uk contractor and drawing was always taken to overrule spec. and was taen that way by our sub contractors and main contractors. Remember the phrase clearly 'drawing overrules spec' being said to me many times. Should be flaged obviously, but would think if you built to drawings and then the designer tried to get you on some obscure spec clause. Think they'd be struggling to prove you liable. Particarly as they'd be admitting their error. Look at it this way, if you were designing something and made it structurally (or whatever your field is) sound and something in a spec that may change your assumptions or design and the contractor builds to that? You can build off drawings, cant build of specs.  
BigInch (Petroleum)
8 Apr 08 11:08
A picture is worth 1000 words.  Drawings....ALWAYS.  

Fine, as in its a fine day
Fine, as in pay the traffic ticket.

You shouldn't have to rely on context when building something.  The language of engineering and design is drawings.  The language of spec writters and lawyers is
(@*%&(*$^#!^$&^

http://virtualpipeline.spaces.msn.com

"What gets us into trouble is not what we don't know, its what we know for sure" - Mark Twain

HgTX (Civil/Environmental)
8 Apr 08 11:21
For us, the design drawings take precedence over standard specifications (and this is spelled out in our specs).  Shop drawings, on the other hand, take precedence over nothing in particular, and if there's any doubt, ask.  (The EOR's approval stamp on the shop drawings is very large because it contains long disclaimers that basically translate into "just because I approved this drawing doesn't mean you can assume it's right".)

Hg

Eng-Tips policies:  FAQ731-376: Eng-Tips.com Forum Policies

GrumpyG (Civil/Environmental)
8 Apr 08 11:28
Lately, Drawings and Specifications are equal on the list.  A statement will be inserted stating where a conflict between the drawings and specifications occur, whichever is of greater value will take precedent.  A tough statement in a competitive market where one is trying to be the low bidder.

Drawings are job specific and specifications tend to be boilerplate.  On some projects, drawings say a certain material is acceptable as structural fill, but the specs say otherwise.  These specs have the same verbage used on thirty or more other projects reviewed and have not been tailored to the project at hand.  I would vote drawings over specs. if I had control over the priority list.

Clarification by the contractor prior to bidding is ideal; however, sometimes questions do not arise until the day before or the day of bidding.  This may not allow for clarification prior to bid submission. Therefore, it is important to emphasize unsusual conditions in the documents and be consistent between plans and specifications.  A costly dispute because of inconsistency in documents will cause a great project to become a nightmare.


 
  
BigInch (Petroleum)
8 Apr 08 15:04
A big part of the problem is that specifications today tend to say how to accomplish something rather than what they are really intended to do, which is stating what an acceptable result should be.

http://virtualpipeline.spaces.msn.com

"What gets us into trouble is not what we don't know, its what we know for sure" - Mark Twain

BigH (Geotechnical)
8 Apr 08 20:41
The last 4 large contracts I have been involved with has specifications over drawings and both over BOQ description.  Interestingly one party wanted to follow the BOQ rather than the spec and drawings.
cvg (Civil/Environmental)
9 Apr 08 12:24
Biginch
I'm sure there are some strong opinions both ways on this but I think there is a place for method specs.  Owners have realized over the years that certain methods result in acceptable quality products and others don't.  They have been burned in the past by contractors saying - "we can do it this easier way and still get good quality".  The end result doesn't always meet expectations.  Then there is the resulting fight at the end of the project about whether it is good enough to be considered acceptable, whether it should be reconstructed, whether the contractor should be short payed for poor quality.  Or perhaps the inspector thinks it is good enough and later on it isn't.  

I would rather see the specs (or drawings) list the "unacceptable methods".  Example - many specs disallow "jetting" to densify pipe zone backfill.  While in some parts of the country, it is routinely used and successful.
BigInch (Petroleum)
9 Apr 08 13:35
I would think those things would be included on something called "assembly instructions", not specs.

Yes that's exactly what I am complaining about, when I have my design engineer hat on.  When I have a construction contractor hat on, I'm always happy to see your kind of specs, because if I do it that way and it doesn't work, I'm off the hook completely and you're in for extras.

 

http://virtualpipeline.spaces.msn.com

"What gets us into trouble is not what we don't know, its what we know for sure" - Mark Twain

cvg (Civil/Environmental)
9 Apr 08 14:01
well, that would be true if "my kind of specs" had no requirements for the quality of the end product.  First, these  specs are generally standards in the industry which we are required to use.  Second, none that I am aware of are strictly method based only.  They all have requirements for the end product as well.  If I could trust a contractor to know how to do everything, I would simply specify the acceptance criteria and leave it at that.  However, I have spent enough time out in the field to see that the low bidder on the job doesn't always hire the sharpest pencil in the box to manage the project.  It starts with the estimator and goes all the way down to the foreman and lead man on the job.  They all contribute to the construction project and frankly, often need to be told not only what you (the engineer) want, but how you want it done.   
rconner (Civil/Environmental)
9 Apr 08 16:23
I am neither an expert in construction contracts nor case law involving same (and have not as far as I know even been involved in such disputes), however, I believe it probably behooves all to do what they can to minimize conflicts/errors and/or at the very least VERY clearly spell out what is to be done when they occur.  There apparently even exists a “rule of contra proferentem”, that is explained e.g. in the USA decision at http://www.ll.georgetown.edu/federal/judicial/fed/opinions/03opinions/03-5055.html (and the also mentioned in many other places including the reference at http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=Fed&navby=case&;no=035055 ) as follows,

“When a dispute arises as to the interpretation of a contract and the contractor's interpretation of the contract is reasonable, we apply the rule of contra proferentem, which requires that ambiguous or unclear terms that are subject to more than one reasonable interpretation be construed against the party who drafted the document. United States v. Turner Constr. Co., 819 F.2d 283, 286 (Fed. Cir. 1987). However, the court will consider whether the ambiguity or lack of clarity was sufficiently apparent that there arose an obligation on the contractor to inquire as to that provision before entering into the contract.”

But of course there is still at least the “consider”ation of “whether the ambiguity or lack of clarity was sufficiently apparent that there arose an obligation on the contractor to inquire as to that provision before entering into the contract” (and there was of course also a minority dissenting opinion).  I have no idea what would constitute “sufficiently apparent” per this rule, but this phrase at least on the surface sounds quite subjective and may put multiple parties at some risk if things were to get ugly enough to go to court.  However, I suspect not allowing a contractor (or his vendors, subs, etc.) much time in the process to detect and have re solved all conflicts or ambiguities (as I think already mentioned on this thread), and maybe particularly if finding/analyzing what is right or wrong might involve quite complex or time-consuming engineering calculations or testing/determinations etc., I think it is quite possible this might not weigh very heavily in favor of the drafter!

Unfortunately compressed time schedules particularly along with a low bid or price stipulations or mentalities may arguably make it quite difficult to obtain the most consistent and best quality product, whether the product is engineering contracts/services, construction, or building materials for same etc.!         
 
NormanDGutter (Civil/Environmental)
22 Apr 08 15:36
The EJCDC*, document 00700 - General Conditions of the Construction Contract, does not establish a hierarchy of contract documents. Paragraph 3.01 reads: "The Contract Documents are complementary; what is required gby one is as binding as if required by all."  Paragraph 3.02 futher states: "It is the intent of the contract documents to describe a functionally complete Project...to be constructed in accordance with the Contract Documents...."

Concerning conflict between documents, Paragraph 3.03 describes a process for doing so, placing the burden on the Contractor for reporting any discrepencies found to the Engineer, and the discrepency is worked out according to the needs of the project.

I have always conducted my practice that NEITHER the drawings or the specifications govern. If a discrepency is discovered, we work it out according to the needs of the project. The only thing the EJCDC general conditions states concerning hierachy of documents is that the Contract Documents have precedence over any referenced standard.

Best Regards,
NDG

*Engineers Joint Contract Documents Committee
DRC1 (Civil/Environmental)
22 Apr 08 22:07
So if thee is a dicrepency in the contract documents, how are the contractors claims for additional time and or cost handled?
LCruiser (Civil/Environmental)
22 Apr 08 22:10
In Public Works, if party "A" develops the Contract documents and there is a conflict, the interpretation belongs to party "B" of the contract.  This does not mean party "A" cannot designate an alternative interpretation,  but party "B" will be entitled to additional compensation if it can be shown Extra Work is required above and beyond the interpretation originally assumed by party "B" in the bid.
bimr (Civil/Environmental)
23 Apr 08 0:15
Lcruiser,

That is an incorrect interpretation. In Public Works Contracts, the Contract language is very specific. In fact, the Contract language is onerous and the Contractor does not have much in his favor. The Contractor basically signs away his rights when he bids the public project.

See the Contractor's representations in Article 8 that the Contractor signs to induce the Owner to enter into the Contract:

"I. Contractor has given Engineer written notice of all conflicts, errors, ambiguities, or discrepancies that Contractor has discovered in the Contract Documents, and the written resolution thereof by Engineer is acceptable to Contractor."

See also

3.03 Reporting and Resolving Discrepancies
A. Reporting Discrepancies
1. Contractor's Review of Contract Documents Before Starting Work:
Before undertaking each part of the Work, Contractor shall carefully study and compare the Contract Documents and check and verify pertinent figures therein and all applicable field measurements. Contractor shall promptly report in writing to Engineer any conflict, error, ambiguity, or discrepancy which Contractor may discover and shall obtain a written interpretation or clarification from Engineer before proceeding with any Work affected thereby.
2. Contractor's Review of Contract Documents During Performance of Work:
If, during the performance of the Work, Contractor discovers any conflict, error, ambiguity, or discrepancy within the Contract Documents or between the Contract Documents and any provision of any Law or Regulation applicable to the performance of the Work or of any standard, specification, manual or code, or of any instruction of any Supplier, Contractor shall promptly report it to Engineer in writing. Contractor shall not proceed with the Work affected thereby (except in an emergency as required by Paragraph 6.16.A) until an amendment or supplement to the Contract Documents has been issued by one of the methods indicated in Paragraph 3.04.
3. Contractor shall not be liable to Owner or Engineer for failure to report any conflict, error, ambiguity, or
discrepancy in the Contract Documents unless Contractor knew or reasonably should have known thereof.
B. Resolving Discrepancies
1. Except as may be otherwise specifically stated in the Contract Documents, the provisions of the Contract Documents shall take precedence in resolving any conflict, error, ambiguity, or discrepancy between the provisions of the Contract Documents and:
a. the provisions of any standard, specification, manual, code, or instruction (whether or not specifically incorporated by reference in the Contract Documents); or
b. the provisions of any Laws or Regulations applicable to the performance of the Work (unless such an interpretation of the provisions of the Contract Documents would result in violation of such Law or Regulation).

http://dnrc.mt.gov/cardd/ResDevBureau/wasact/docs/Funding_Agency_Standard_General_Conditions.pdf
LCruiser (Civil/Environmental)
23 Apr 08 0:36
bimr -

Exactly my point.  See your 3.:  

"Contractor shall not be liable to Owner or Engineer for failure to report any conflict, error, ambiguity, or discrepancy in the Contract Documents ..."

Like I said, the Owner can make the Contractor do it their way (within the scope of the Contract) but they don't have to do it for free.  

Anything can be done.  All it takes is money.

 
stanier (Mechanical)
23 Apr 08 2:58
One of the problems is design consultants write a specification when all that is needed is a data sheet referencing the performance requirements, applicable standards and any special requirements.

Consultants get paid by the hour for bums on seats. Mosty of their specifications are full of motherhood statements with no validity at law as they are so vague e.g. "shall be in accordance with good engineering practice...' What a crock but it appears all the time.

A specification written based on a particular suppliers product catalogue demonstrates to me the author knows less than the supplier about the product. Yet it is seen commonly in requests for quotation.

That said in my experience the order of precedence is normally specification, data sheets then drawings. If cluases in respect of discrepancies are too one sided the court will generally ignore them. Drawings cannot in themselves be relied upon as they do not necessarily reference standards , or more importantly the options in a particular standard. Unless drawings go to detail design then the overall requirements will not be defined thereon.

Design and construct contracts require different documentation than say a construct only , a fabricate or an EPCM type of contract.

This is why the project engineers and project managers get paid the big bucks. They create a minefield that they in turn have to sought out. Nearest thing to a perpetual motion machine.

bimr (Civil/Environmental)
23 Apr 08 9:35
LCruiser (Civil/Environme)

You left off the important part:
"unless Contractor knew or reasonably should have known thereof."

The interpretation is that:
Party "A" develops the Contract documents and if there is a conflict, the interpretation is done by party "A" not party "B" (the Contractor).   
LCruiser (Civil/Environmental)
23 Apr 08 9:47
True, if the Contractor knew.  As far as "reasonably should have known", how could the Contractor "reasonably should have known" in his brief time period of developing the bid when the Owner's Engineer didn't know in the months or years he was developing the project?  

Like I said, the interpretation can be (and in some cases necessarily must be) that of the party writing the Contract, and usually there are provisions to enforce that - but party "B" - the Contractor in this case (unless it's a design build) is entitled to additional monies.
bimr (Civil/Environmental)
23 Apr 08 11:59
I don't think that we are that far apart. But, public works contracts are not friendly to Contractor changes because of the onerous Contract conditions such as the Contractor's Representations. As you state, the onus is on the Contractor to prove his points.

Article 8. CONTRACTOR' S REPRESENTATIONS

8.01    In order to induce OWNER to enter into this Agreement, CONTRACTOR makes the following representations:

A.    CONTRACTOR has familiarized itself with the nature and extent of the Contract Documents, Work, site, locality, and all local conditions and Laws and Regulations that in any manner may affect cost, progress, performance or furnishing of the Work.

B.    CONTRACTOR has studied carefully all reports of explorations and tests of subsurface conditions and drawings of physical conditions which are identified in the Supplementary Conditions as provided in paragraph 4.02 of the General Conditions, and accepts the determination set forth in paragraph SC-4.02 of the Supplementary Conditions of the extent of the technical data contained in such reports and drawings upon which CONTRACTOR is entitled to rely.
 

C.    CONTRACTOR has obtained and carefully studied (or assumes responsibility for obtaining and carefully studying) all such examinations, investigations, explorations, tests, reports and studies (in addition to or to supplement those referred to in paragraph 8.01 B. above) which pertain to the subsurface or physical conditions at or contiguous to the site or otherwise may affect the cost, progress, performance or furnishing of the Work as CONTRACTOR considers necessary for the performance or furnishing of the Work at the Contract Price, within the Contract Time, and in accordance with the other terms and conditions of the Contract Documents, including specifically the provisions of paragraph 4.02 of the General Conditions; and no additional examinations, investigations, explorations, tests, reports, studies, or similar information or data are or will be required by CONTRACTOR For such purposes.

D.    CONTRACTOR has reviewed and checked all information and data shown or indicated on the Contract Documents with respect to existing Underground Facilities at or contiguous to the site and assumes responsibility for the accurate location of said Underground Facilities. No additional examinations, investigations, explorations, tests, reports, studies or similar information or data in respect of said Underground Facilities are or will be required by CONTRACTOR in order to perform and furnish the Work at the Contract Price, within the Contract Time, and in accordance with the other terms and conditions of the Contract Documents, including specifically the provisions of paragraph 4.04 of the General Conditions.

E.    CONTRACTOR has correlated the results of all such observations, examinations, investigations, explorations, tests, reports, and studies with the terms and conditions of the Contract Documents.

F.    CONTRACTOR has given ENGINEER written notice of all conflicts, errors or discrepancies that he has discovered in the Contract Documents and the written resolution thereof by ENGINEER is acceptable to CONTRACTOR.
 
NormanDGutter (Civil/Environmental)
23 Apr 08 17:38
In the way of doing it that I described above, if there is a discrepency, you work it out according to the needs of the project. If the Contract Time and Contract Price are impacted, either Owner or Contractor can request a contract Modification (i.e. change order).

Let's take a hypothetical. The Drawings state that a certain embankment should be compacted to 98 percent of Modified Proctor. The Specifications say compaction of embankments should be to 95 percent Standard Proctor. Which is correct? Only the design engineer knows for sure. If you say "Specs govern over drawings", and it really should be to the higher compaction level, then Contractor probably has a claim for extra costs, because he can legitimately claim he put his bid together believing the specs governed--because the Contract Documents said the specs governed. If you say "Drawings govern over Specs", but really the job only needs the lesser compaction, try getting a price reduction from Contractor!

So in this case, you need to work it out. If the Contract Documents are complementary...etc., as I quoted above, and the discrepency is not noted until compaction has begun, either Contractor or Owner might have a claim for a change in Price, but in reality it will probably not make a big different--unless you are talking about tens of thousands of yards of embankment.

bimr: Please say what document you are quoting from. Is this a paragraph in the Instructions To Bidders? If so, what base document did it come from? AIA? EJCDC? Something other, based on what your firm has been using for years?

 
stanier (Mechanical)
24 Apr 08 20:15
There is a common law argument of contra preferentum (not sure of the Latin exactitude so apologies to any learned scholars??), whereby the most onerous conditions are held against the party that created the documents containing the conflict. Wins hands down in most contractual conflicts. SO if there is no precedence of documents and there is the compaction difference mentioned in the above the contractor gets to make a legitimate claim for time and money. If the project engineer has been smart there are schedules for additional work that have been determined during the bid process.

That is why lawyers developed the concept of precedence of documents.

The contractor still has to demonstrate the value of any claim.

There has been many a strategy when bidding a job where a smart contractor has noticed discrepancies to play the ambush and claim game. It generally only works once and you soon lose clients as your reputation spreads.

Governments are generally susceptible to such strategies as they accept tenders from low bidders and their project engineers are generally woeful when preparing documents. They write too much in the documents, using numerous authors and are bound to make mistakes. Ever noticed a government project that did not have a budget blow out?

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