Priority of Contract Documents in Construction Projects

In construction contract, it is essential to determine the order of priority of contract documents in order to resolve any conflicting documents which are all part of the contract. The existence of “order of precedence of contractual documents” would serve as a working mechanism of which would prevail during the execution of the work.

Accordingly, the FIDIC (Internation Federation of Consulting Engineers) 1999 edition of the Construction Contract in Sub-Clause 1.5 - Priority of Documents states that:

The documents forming the Contract are to be taken as mutually explanatory of one another. For the purposes of interpretation, the priority of the documents shall be inaccordance with the following sequence:
(a) the Contract Agreement (if any),
(b) the Letter of Acceptance,
(c) the Letter of Tender,
(d) the Particular Conditions,
(e) these General Conditions,
(f) the Specification,
(g) the Drawings, and
(h) the Schedules and any other documents forming part of the Contract. 

If an ambiguity or discrepancy is found in the documents, the Engineer shall issue any necessary clarification or instruction.

I would like to illustrate some of commonly encountered conflicts during the execution of the work. From time to time I would be adding questions (Q) and answers (A) here.

Question

Why is it that the priced bill of quantities (BOQ) which is part of the tender officially submitted should not take priority over "the specifications" and "the drawings"? It is so clear that the tender as “item c” in the order of priority is absolutely above specifications and drawings. Please clarify.

Answer

Though that the Bill of Quantities is a tender document  consisting of list of work items required to construct, maintain and repair, if any, which prepared by the Employer during the bidding stage, the Contractor shall not be responsible for any potential errors in the quantities provided by the Employer. But he is responsible for the pricing of those work items he calculated and submitted in his offer. However, “item h - the Schedules...” in the order of priority of contract documents defines in Clause 1.1.1.7 that "Schedules" means the document(s) entitled schedules, completed by the Contractor and submitted with the Letter of Tender as included in the Contract. Such document may include the Bill of Quantities, data, lists, and schedules of rates and/or prices. Likewise, Clause 1.1.1.10 states that "Bill of Quantities" and "Daywork Schedule" mean the documents so named (if any) which are comprised in the Schedules.

In a clearer sense the FIDIC did not require a BOQ for pricing but it allows a schedule of rates and prices. Further, under Clause 14.1 (c) - The Contract Price stipulated that;

(c) any quantities which may be set out in the Bill of Quantities or other Schedule are estimated quantities and are not to be taken as the actual and correct quantities:             
                        i.  of the Works which the Contractor is required to execute, or
                        ii. for the purposes of Clause 12 [Measurement and Evaluation]

Therefore, for straightforward interpretation in accordance with the FIDIC, the priced bill of quantities (BOQ) is given a lowest priority because it is part of the “Schedules” which is under “item h” of the priority of contract documents.

Would you like to raise any questions pertaining to the above subject matter, simply leave your comments below. I’ll do my best to answer your questions contractually.

~ by Engr. Olan Deems