How to deal with conflicts in contract documents

A Claims Class student recently contacted me for some advice regarding conflicts in contract documents. The Engineer always instructed the Contractor to go by the most stringent of the conflicting documents. The student asked if this was the correct approach. This is often the default position of engineers or contract administrators. I disagree with such an approach, so I thought that it would make a useful blog topic.

The first place to try and resolve conflicts in documents is the contract. This will enable you to see if there is an order of priority of documents included. If, for example, the specification is deemed to be a higher priority than the drawings, then we should generally follow the specification. However, this is a simplistic approach and is not always appropriate. Let’s look at a few examples.

Contract documents should be regarded as being mutually complimentary. But, there are two categories of problems that may arise when interpreting the contract documents. First, there may be inconsistencies and conflicts that occur within a document or between documents. Second, there may be omissions in the documents where the subject matter is covered either inadequately or not at all.

Conflicts in Contract Documents 

Sometimes we have conflicts in the same document or set of documents. One contract clause may say one thing and another something else. Furthermore, the specification may contain contradictory information in different places. In this case, we must adopt the accepted interpretation that the specific should control the general. This approach assumes that the general applies unless specifically contradicted. Here, it is a matter of a clause that goes right to the point versus one that generally discusses a particular circumstance or requirement.

Inconsistencies in Contract Documents

Drawings are sometimes created inconsistently. When this happens, the more detailed drawing should usually prevail over the general drawing. Similarly, a large scale drawing will take precedence over one drawn at a smaller scale. If the drawings are of equal detail, the most current of the two drawings should usually take precedence. The trade for which the drawing is prepared should also be considered. For example, plumbing details indicated on the plumbing drawings should prevail over deviations from or omissions of that work in drawings made for other trades. It is not uncommon for the drawings to indicate one thing, and the specifications, another. This may be dealt with in the contract by stating the order of precedence.

Omissions from Documents

No set of contract documents has ever been ‘complete’, and it is unlikely that one ever will be. The law typically requires that the documents be ‘reasonably complete’. They should also be competently done as is the norm for the profession. Therefore, omissions must be judged against that standard.

The first place to look for something omitted from either the drawings or the specifications is elsewhere in the contract documents. Thus, apparent omissions from the drawings may be covered by text in the specifications, and omissions or ambiguities in the specifications may be covered by details in the drawings. This is consistent with the viewpoint that the contract documents are complementary.

One additional point that may be important in individual cases is that the courts will tend to construe an ambiguous provision against the party who was responsible for drafting it. Thus, if the Contractor’s interpretation of a drawing or a part of the agreement or specification is reasonable, the Contractor’s interpretation may prevail over the Employer’s (as the party who caused the item to be drafted). This is based on the rationale that the party who drafted the item could have had it any way it wanted and if it did not draft a clear provision or produce a clear drawing, the other party should not be made to suffer unreasonably.

Dealing with Omissions

One of the ways that courts deal with omissions in documents is to infer that certain terms are included, though not explicitly stated. The attitude of courts (and their willingness to do this) has varied among jurisdictions and according to the types of documents involved. Courts are usually quite willing to find certain terms implicit in construction contract documents. However, express terms and conditions will preclude a court from inferring different terms and conditions.

Another method that the courts use to fill in gaps in the contract documents is to find implicit terms and conditions according to custom and usage in the industry. This could cover many items. It might even be used to decide which of the parties was responsible for a particular contractual event. Thus, who bore the risk of that event occurring or not occurring, as the case may be.

Conclusion

It is therefore important for the Engineer to examine all the documents before deciding on conflicts and omissions in the contract documents. They should also judge each case on its own merits.

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