Which Documents Govern when they Differ?
Precedence of the Contract Documents
By Arthur F. O'Leary, FAIA, MRIAI

Errors in Construction Documents
Considering the extraordinary volume of data contained in the typical set of construction documents, literally hundreds of thousands of information bits, it is surprising that we do not see more errors, ambiguities, inconsistencies, and anomalies. Fortunately, most errors encountered after the documents are released are trivial and cause no more than momentary pause and possibly some degree of professional embarrassment to the architect, with little or no economic or practical consequence to the owner or contractor.

Document Review Procedures
Properly managed architectural and engineering practices employ rigorous review procedures and the work product is routinely checked at various stages of progress. Voluminous comprehensive check lists are available, some produced by individual offices to reflect past problems and hopefully to eliminate them in the future.

Document review should always be under the responsible supervision of competent qualified senior personnel. Checking of drawings and specifications is not high on the list of favorite tasks in an architect’s office, so it is easy to assign it to junior people. This could be one of the costliest errors an office could make, as only a fully qualified architect or engineer is likely to recognize sophisticated or complex errors, particularly those of omission.

The completed documents should be checked for compliance with the owner’s program and instructions, applicable building codes, industry standards, and customary construction procedures. Checking should also evaluate whether the documents, when executed in the field, will effectively carry out the design intent. The checker should always make sure that the documents reflect the proper use of materials and that the structural and other systems are practical, economical, and constructable. One of the most important aspects of document review is checking for physical coordination among the various engineering and design disciplines. It is also necessary to confirm that all engineering recommendations are carried out on the drawings and in the specifications.

The final review before release of the documents for contract bidding should be comprehensive and thorough. Regardless of the scope, depth, and quality of document review, however, it is inevitable that some level of error or inconsistency will remain undetected.

Errors in General
Documentation errors that consist of erroneous entries or notations, such as wrong materials, faulty methods, or inaccurate dimensions, cannot be automatically resolved by the adoption of some agreed formula or course of action. The same is true of errors of omission. These types of errors, when found, must be resolved by an architect’s considered decision clarifying what should be done, and who will pay for it.

Errors that are discovered by or brought to the attention of the architect during the bidding period can be easily dealt with by prompt consideration of the technical problem and issuance of an appropriate addendum to the affected document. Most of the remaining errors will usually be discovered during the construction period. However, some will remain undetected to surface years later or possibly never.

Errors of Inconsistency
Other errors will be in the form of inconsistencies between the various elements of the contract documents. For example, the specifications might not agree with the drawings or the agreements in some respect. However, some inconsistencies and conflicts will occur within a single document. For example, one segment of the specifications does not agree with another, or the floor plan is not in accord with a cross section.

This discussion will be limited to those anomalies that are manifested by conflicting requirements in two or more of the contract documents or within a single document. These inconsistencies could sometimes be easily resolved if the documents could be ranked in a hierarchical order of authority. This would be simple and effective for some types of inconsistency.

For example, if the specifications stated that a certain large group of light bulbs is to be 300 watts and the lighting fixture schedule on the electrical drawings required 500 watts, then the higher ranked document would govern. However, this settles only the contractual obligation of the contractor allowing other problems to remain unresolved. For example, if the drawings were designated as governing, then the 500 watt bulbs would have to be supplied by the contractor. However, if the 500 watt designation is incorrect then the contractor must be redirected to supply 300 watt bulbs and issue a credit for the difference in cost between 500 watt and 300 watt bulbs. But if the error is not discovered until after the 500 watt bulbs have already been installed, then the contractor must be reimbursed for the extra costs of relamping, restocking (if allowed by the supplier), supervision, overhead, and profit. The credit for changing to smaller bulbs will be consumed or exceeded by the associated costs.

Some will point out that this problem could have been prevented altogether if the same information had not been given in two places, that the bulb size should be shown in the lighting fixture schedule on the drawings and eliminated from the specifications, or vice versa. This is undoubtedly true for this example and is good advice generally. However, other situations often arise where the inconsistency is more difficult to perceive. For example, where an industry standard, code, or regulation is cited in the specifications and the size, gauge, thickness, or some other quality shown on the drawings is inconsistent with the cited standard, code, or regulation.

Priority of Documents
There is no universally accepted general principle that dictates the priority of one document over another. The only way that one document will take precedence over another is if that is spelled out in the contract. If a contract is silent on the subject, then no document governs.

The concept of establishing a hierarchy of documents has never been embraced by the committees of architects that are responsible for authoring the AIA General Conditions down through the years. On the contrary, the AIA recommends that a precedence of documents not be established, but rather it should be provided that all documents are complementary. What is required by one document is as binding as if required by all. (Note 1)

This does not directly resolve the problem of inconsistent or conflicting requirements but instead requires the architect to make a determination taking into account all relevant factors gleaned from anywhere in the documents or reasonably inferable from them. The architect’s decision must determine what the contractor is obligated to do and what adjustment, if any, is to be made in the contract price or time. This is the acid test of an architect’s ability to be fair to both owner and contractor.

The AIA, recognizing that occasionally some situations require a precedence of documents to be established, in its Guide for Supplementary Conditions, recommends a priority ranking of the documents followed by a requirement that in case of inconsistencies in or between drawings and specifications, the higher cost condition should govern. (Note 2)

The recommended order of precedence considers the drawings and specifications to be of equal authority, and they are last after all other documents. The final paragraph which relates only to inconsistencies between the drawings and specifications settles only the matter of controlling the contractor’s obligation for price and time but does not settle the issue of which requirement is correct or proper to be carried out. When the error is not discovered until after the questioned work is completed, the contractor must be paid all extra costs of changing from the more stringent or costly condition to the correct one. The paragraph apparently does not apply to inconsistencies between or among these two documents and the others listed. It also fails to answer the question of inconsistencies among the other documents.

Most architects who feel that it is preferable to have a precedence of documents provision in their contract documents tend to favor drawings over specifications, while construction attorneys seem partial to the agreement over all other documents. Apparently each is more trusting of the documents with which they are most familiar or have the most control over.

Some architects specify that large-scale drawings will take precedence over small-scale drawings and that figured dimensions take priority over scaled dimensions. The architect still must decide which document is correct when the one of highest precedence is clearly wrong. The architect’s decision becomes difficult when the contractor has already carried out incorrect work while following the governing document of highest precedence, all the while unaware that the correct information is elsewhere in the documents.

Rules made in a contract to provide which of two inconsistent contract requirements should govern do not always neatly settle the issue. For example, a rule that the most costly condition or most stringent condition will govern would be impossible to apply to an erroneous location dimension, an incorrect door swing, or a wrong color.

Interpretation Must Be Credible
Obviously incorrect typographic or clerical errors must be interpreted reasonably. No contractor can be considered credible when claiming to be misled by a 40-inch thick concrete floor slab requirement that is obviously intended to be 4 inches thick, or by a number 30 steel reinforcing bar that is obviously meant to be a number 3 steel bar. Neither is the owner to be taken seriously when demanding that the contractor furnish the 40-inch thick concrete slab or the number 30 steel bars or requests a monetary credit in lieu thereof.

Architects’ Interpretations
Architects who are required to render interpretations and make decisions resolving inconsistencies or conflicts between or among the documents must stay meticulously within the contractual guidelines of A201-2007, Paragraph 1.2, Correlation and Intent of the Contract Documents.

Regardless of what the architect had in mind, or intended to include in the documents, the decision and all inferences must be based on what can be actually found in the contract documents. The architect-decision-maker, being also the author responsible for the inconsistent or erroneous documents, must at all costs guard against self-serving rulings.

Sometimes a fair ruling must be in favor of the contractor and against the owner. If this precipitates some problem between the architect and client, then this is a matter that they will have to resolve between themselves. It is of no concern to the contractor and should not enter into the architect’s decision regarding the contractual relationship between the owner and contractor. The contractor should not under any circumstances be required to pay for the architect’s errors. In determining what is reasonably inferable from ambiguous, inconsistent, erroneous, or incomplete documents, the architect must exercise impartial judgment based on a credible and plausible analysis justified by the actual state of the documents. This decision will be final and binding upon the parties if not appealed to mediation or arbitration within the time limits in A201-2007, Article 15, Claims and Disputes.

If the architect’s determination is not sustainable from evidence that can be found in the contract documents, fair, knowledgeable, and reasonable arbitrators will find no difficulty in overturning or amending the architect’s decision in their award. (Note 3) 

Arthur O’Leary solicits suggestions from the readers of Design Cost Data for subjects that they would like to see covered in future. O’Leary’s email address is art@dcd.com. Please write him with any questions, thoughts, or subjects that you would like to see covered related to the practice of architecture or construction law.

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