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Construction Law/Tender Drawing Discrepancies

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Question
The architectural tender drawings require torch-applied membrane system for the footings, while the structural tender drawings show 750 microns fiber reinforced bituminous paint + 1000 Ga. polythene sheet. The Bill of Quantities provided the details as per the structural tender drawings. The Instruction to Tenderers requires the contractors to inform the Engineer any ambiguities in the Tender Documents or discrepancies among the Tender Documents. The successful main contractor did not address this discrepancy and the contract was awarded to him. When the footing works started 3 months after the signing of the contract, the Engineer instructed the contractor to follow the waterproofing system based on the architectural drawings. The contractor informed they have considered the BOW description of the waterproofing system based on the structural drawings. The contractor submitted an additional cost claim should the Engineer insist on using the torch-membrane. However, the Engineer responded that since the contractor failed to address the discrepancies during the tender stage, the latter is therefore not entitled for additional cost.

Please advise if the Engineer's decision is correct and valid. The type of contract is lump sum and the BOQ issued to the tenderers do not have quantities (tenderers were instructed to provide the quantities based on the tender drawings.

Thank you,

Answer
Dear Seg
Let me start answering this difficult questing by indicating that the Engineer is not right in response that the Contractor should use the torch applied membrane  because he did not spot the discrepancies in the drawings. on the other hand, the resolution shall be based on the priority of documents but here both options were marked on drawings. On the same basis, I would consider that the statement on the structural drawings and the boq have more weight than the statement on the architectural drawings. Add to that footing waterproofing is normally indicated on the structural drawings and in many cases such footings are not shown on the architectural drawing. consequently, I would say that the contract has several contractual points to support him for the use of bituminous paint.
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