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.
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.
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
“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.!
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.
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.
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).
"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.
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.
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).
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.
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.
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?
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?
