I was perusing the April 2008 issue of AWCI’s Construction Dimensions and came across a statement made by the authors that jumped right off the page at me as being something that wasn’t entirely correct. The statement was in the article titled The Devil Is in the Details by Ulf Wolf and Steven Ferry. The article contains some great insight into the world you deal with every day; however, on page 45 is the statement that I take issue with. Here is the statement:
“As a rule, if you read the fine—or not so fine—print, the contract between owner and architect, more often than not, includes a provision in the General Conditions, under the heading of ‘Order of Precedence of Documents,’ which gives you, in descending order, what takes precedence:
• Contract between Owner and GC.
• Special Provisions.
• General Provisions.
• Details on Drawings.
• Plan Drawings.
First, I am not aware of a contract form between the owner and architect that establishes this type of precedent. That is not to say that it hasn’t happened; I have never encountered it.
I have encountered this provision in boilerplate of some federal contracts, General Provisions, and years ago in a contract with a local school district. As I understand it, the new ConsensusDOCS include this type of provision.
It is not clear to me where this specific requirement originated. If you applied this to a contract based on AIA A201, you might get into trouble big-time.
When dealing with any contract you need to know and understand the contract documents. If you work with the same owner or architect on a regular basis, you know how they deal with these issues. But when you undertake work for a client or an architect who is new to you, you need to spend the time necessary to make a complete review of the contract documents.
Have you educated your estimators and project managers in this method of looking at contract documents? If you haven’t, you really should. It can have a huge effect on your bottom line and how the project functions. As any lawyer will tell you, it is very important to completely understand any contract that you sign your name to.
One of the questions that may occur to you is, What’s wrong with including this type of requirement in the contract documents? Maybe it’s just my background in construction, but it seems to me that if the architect created a conflict, he should be the one to resolve it. An order-of-precedence rule leaves too much open to question. If you as a subcontractor follow this rule, you then pick up the liability that your choice will work to the satisfaction of the owner. Can you really be sure that you made the correct choice? Do you know all of the pieces of the puzzle, or are you focused on just your piece of the pie? As you proceed down the order of precedence, are you sure that all of the information on the larger detail or the specifications is correct and right for the project in question?
While my stance may get me into trouble with the organizations who signed off on the ConsensusDOCS—and that includes AWCI—I think that the language in AIA A201 is appropriate for the situation. That is, make the architect responsible for clearing up the conflict. In whose favor will he or she decide? If we follow the requirements of A201, it is supposed to be an unbiased opinion.
The real message here is to read and understand any contract you sign.