Construction Law/Actual Sense of Priority of Documents
Conditions of Contract: FIDIC for Work of Civil Engineering Construction - Fourth Edition 1987
Reprinted 1988 with editorial Amendment only.
Reprinted 1992 further Amendments.
Clause : 5.2 on Priority of Documents.
Question 1: I am requesting kindly a full interpretation in this clause.
In the present Contract I am attached to,in Particular Conditions - Part II of Conditions of Contract pertaining to this clause,
Drawings are above Bill Of Quantities.
All from whom when I asked about resolution of ambiguity or discrepancy of any item in the above two documents,the reply was, the Engineer will always order to accept what is in the Drawings since it holds priority.
But I do not agree to this reply. My argument is the Engineer will order to accept what is the most relevant and if necessary with further adjustments irrespective of the priority of the document it is available.
But in such a case, I can not understand what is the use of prioritizing documents and why it says in the clause,that "but in case of ambiguities and discrepancies the same shall be explained and adjusted by the Engineer who shall thereupon issue to the Contractor instructions thereon and in such event, unless otherwise provided in the Contract,the priority of the documents forming the Contract shall be as follows: ---------"
Please be good enough to provide me a clear, detailed reply based on the following dispute I am facing at the moment.
1.0 In the present ongoing Contract, Drawings hold priority above BOQ.
2.0 One of the structures is to be provided with Hand Rails.
3.0 As per the BOQ, those Hand Rails are to be in GI(Galvanized Iron.)
4.0 But in the Drawing, it should be in Stainless Steel).
5.0 The Tenderer has quoted for GI as per the requirement in the BOQ.
5.1 Is it alright?
5.2 Has he to quote for Stainless Steel as in the Drawing which holds
priority, without changing the BOQ item Description to be in line
with that of the Drawing?
5.3 In cases similar to above,is a Tenderer allowed to amend BOQ
Descriptions appropriately and to price accordingly?
6.0 After awarding Contract,what is the procedure followed by the
Engineer, in deciding the correct material to be used for Hand
7.0 In what circumstances the Engineer's decision will constitute a
a Variation and the Contractor will be entitled to Claim a new
8.0 In what circumstances the Contractor can not Claim a new rate?
Further Request: I am grateful, if you can suggest where to procure a
good book- may be a ebook on The Way of Interpretation
of FIDIC Clauses.
Thank you sir.
Thank you for your question and like to explain my view point as follow in general:
The primary purpose and guideline in interpreting an ambiguity in a contract is basically to establish the intention of the parties after going through various documents forming part of the contract. Such intention is normally ascertained keeping following rules in view:
1. The plain meaning rule: Ordinary meaning unless specified in contract in different sense.
2. Rule against the drafter: If more than one reasonable interpretation possible, it means the drafting party failed to explain the desired intent clearly and hence in such cases meaning which operates against the party who supplied the words is given priority consideration.
3. Interpretation as a whole: Agreement to be seen in entirety. It is here that clause 5.2 helps to identify the priority order of provisions made in various documents forming part of the contract and this priority list helps in resolving ambiguities by the Engineer.
Coming to your example, please note that this clause helps to identify more preferred solution when there is an ambiguity. There is no ambiguity to my mind as the drawings as well as BOQ are clear as far as its provision are concerned. It is for Engineer to go by drawing or BOQ provision and instruct the contractor accordingly. The rates in BOQ have to be amended to cater for the provision of stainless steel material if Engineer decides to follow the drawings and is a normal practice we follow here.