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Order of Precedence

9 replies [Last post]
Wed, 2005-11-23 20:03
Don MacDonald
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Hi,

I received a claim from a Contractor recently that involves discrepencies in contract drawings. The Contractor claims that the bid was based on one drawing which stipulates a certain type of reinforcing bar. After reviewing the drawings there is indeed a difference from one drawing to the other. One drawing shows that a specific set of bars is to be epoxy coated. The other drawing in the same set of plans show black steel. The epoxy coated steel was the correct type and the contractor was directed to place this epoxy coated steel in the structure.

Of note is the fact that the correct drawing is enlarged and is in fact a detailed drawing of the general set of drawings that shows the incorrect black steel.

Under the Contract, there is a clause for dealing with such variations in drawings. It dictates that drawings of larger scale and or detail drawings shall take precedence over drawings of smaller scale or general drawings.

Based on this clause in the Contract and the fact that the correct material required was identified in the detailed and enlarged drawing, is there enough to simply deny the claim? It is my belief that the Contractor bid the correct type of steel and later realized that an avenue for a claim may be open when they noted the discrepency in the drawings. In other words, if I thought the claim was legitimate I may be more open to negotiating a fair settlement. I feel however that this matter is being used in order to recoup money not deserved.

Anyone have experience in how these order of precendence clauses are looked upon? Should I simply deny the entire claim based on the O of P or should I consider negotiating?

Thanks all
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Replies

Wed, 2011-10-19 04:59
#1
Mike Testro
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Hi Jamil

Welcome to planning planet.

Firstly if you have a query then start a new thread in the appropriate forum - it is bad manners to liven up long dead threads.

To answer your query the correct size is the one that is required by the structural engineer - not the contract representative.

All such discrepancies must be referred to the engineer for a ruling.

Best regards

Mike Testro

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Tue, 2011-10-18 20:17
#2
Jamil Riga
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hi everyone..

I am new to this site and still find this site very interesting. I hope you don't mind if I ask your opinions regarding contractual matters.

I am working as contractors representative in dealing with claims and I usualy find that there are discrepancy on sizes in layout drawing and the one on schedule like foundations for example. My question is that, if this setuation arises, what size will govern? the size on the layout or the size on tha schedule?

Your reply or comments will be highly appreciated.

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Mon, 2006-02-13 11:40
#3
Charleston-Joseph...
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Hi Don,

In general, the condition of the contract usually state that higher quality of material will be used in case of ambiquity (in this case you have the option to choose epoxy coated or non-epoxy coated stee). It is very clear that epoxy coated steel is of higher quality compared to non-epoxy coated steel.

All you have to do is look at that particular clause in the contract considering such wording are general, global, universal, etc. in application.

Cheers,

Charlie
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Sat, 2006-02-11 11:47
#4
Mohammed Irfan Sh...
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Hi Friends,

I found this topic too irresistable to avoid putting my comment in.

As a Contractors representative and given my job priority as contract study and claim search, i have been meddling with the consultants and the client in such topics for a long time. And i have made a point certain in all my letters of Claims or Queries,’As per Professional Practise, any Special Details would superceed over other details given in the drawings.’ And my correspondences have been successful all the times and we have got over many patches for work executed. Though lucky that consultant is not technically sound and doesnt study the drawings. Though this sentence of mine is not supported by any study or contract, till now none have objected to this.

Any comments,

Irfan
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Thu, 2005-11-24 20:23
#5
Andrew Flowerdew
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Don,

I think Stuart has it spot on.
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Thu, 2005-11-24 12:51
#6
Don MacDonald
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I agree Stuart.


Thanks
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Thu, 2005-11-24 07:37
#7
Stuart Ness
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Don,

On the basis of your posts, it looks to me as if the Contractor is being opportunistic!

If the Contract clearly stipulates that drawings of a larger scale and/or detail drawings take precedence over general drawings, then it is equally clear to me that the Contractor has no entitlement to a claim based on the requirements of the smaller scale or general drawings. This situation appears to have been pre-empted by the Contract terms, and therefore it would be improper of you not to apply the clarity provided by the Contract.

If both these apparently inconsistent drawings were available to the Contractor at time of tender, it begs the question as to why he did not raise the matter at the time of tender and seek a tender clarification of this point. The only reason that I can see why he waited until he was on site to raise this matter is because he foresaw the possibility of a claim. If you give into him now, he will consider that the door to frivolous claims is wide open and you will be seen as an ‘easy touch’!

The wording in the Contract is there for a good reason; I suggest you use it!

Cheers,

Stuart

www.rosmartin.com
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Wed, 2005-11-23 23:38
#8
Don MacDonald
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Hi Uri,

I’m almost positive that the contractor recognized the different drawings prior to submitting the bid. Shop drawings were required from the contractor the show he intended to use the correct steel. These shop drawings were submitted prior to the contractor identifying two different bar types. If the contractor didn’t see the enlarged drawings and based his bid on the incorrect and smaller drawings then I would expect that the shop drawings that he created would have shown the incorrect steel as well.

At this point in time it is not so much a matter of EoT that he is after but more of an additional cost for material he alleges he did not no about at the time of bidding. Again, due to the fact that he submitted his own shop drawings that show the correct steel (submitted prior to notification of the contradiction in the drawings) I doubt the validity of his claim.

This will undoubtedly turn into a delay claim however since if he is awarded anything for the reinforcing steel issue his next step will be to claim that this delay caused him to carry the project into the 2006 construction season.

Thanks
Don
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Wed, 2005-11-23 23:07
#9
Uri Shachar
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Don,

As per your side of the story (could the Contractor see it differently)a reasonable Contractor, upon discovering a contradiction in the drawings, should have identify which drawing take precedence and act accordingly.

Also, if indeed there was a contradiction, it does not automatically mean that there is an entitlement for an EOT. The Contractor must prove (in most cases) that the delay effected critical activities and also that he reasonably tried to mitigate the delay.
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