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Construction Law/Priority of Documents

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Question
Dear Sir,

I am grateful, if you would kindly clarify the following point too.

General Conditions of Contract: FIDIC MDB June 2010 Harmonised Edition
Sub-Clause:1.5 - Priority of Documents
It says,
"The documents forming the Contract are to be taken as mutually explanatory of one another. For the purpose of interpretation, the priority of the documents shall be in accordance with the following sequence.
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If an ambiguity or discrepancy is found in the documents, the Engineer shall issue any necessary clarification or instruction."
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The way I interpret this clause is, as stated in the first sentence, the Contract documents should be mutually explanatory one another of any matter under the consideration, if the same matter is addressed in more than one document. In such a case the description in the document having more priority, should receive the highest consideration and to be done at the rate quoted, without any additional claim.

But due to some reason, if the Engineer instructs to follow a document having lower priority, then it will be a Variation, but the payment will depend on the prevailing circumstances and the actual cost plus profit the Contractor will have to bear.
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As in the last sentence, "If an ambiguity or discrepancy found in the documents, the Engineer shall issue any necessary clarification or instruction."

In this case too, the payment will depend on the circumstances.

Please clarify.

Thank you in advance.

Answer
Dear Shantha,
thank u for yr interesting question
The Engineer is the person to decide/determine all such discrepencies under the contract and keeping this in view it is very difficult to agree with yr viewpoint.Simply put the engineer is to decide all such matters.You can disagree and proceed with next tier of dispute resolution process
with best wishes
regards-liaqat hayat

Construction Law

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Liaqat Hayat

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I can answer questions based on FIDIC 4 and FIDIC 1999 [design-build] with particular reference to time extension , price adjustment and disputes. I am in particular more inclined for response to points pertaining to how claims should be framed and put up in case of technical or other contractual shortcomings. Regarding procurement matters I have spent over 5 years as procurement specialist for highway authority and dealt with numerous claims and disputes in the capacity of "The Engineer" .

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