Priority of Documents for Conditions of Contract for Construction, Plant, and Design-Build and Turnkey Projects

In order to resolve apparent inconsistencies or contradictions, in cases where the same subject-matter is covered several

times in different parts of the Contract, this Clause provides an order of precedence of the documents. The listed priority applies for the purposes of interpretation. Words such as "ambiguity" or "discrepancy" are not mentioned as pre-conditions for the applicability of the list. It therefore applies whenever necessary for the purposes of interpretation.

The Contract Agreement has the highest priority, so it should include the clarification (and hence the removal) of any ambiguity or discrepancy which has already been found in the documents comprising the Contract. Although this priority has the effect of making words such as "unless otherwise stated in the Particular Conditions" legally unnecessary, these words are included in the General Conditions in order to assist users in the identification of circumstances in which some provisions in the General Conditions may need to be reviewed when writing the Particular Conditions. The priority of the documents listed below the Conditions of Contract is based on the principle that the Employer's documents should have priority over the Contractor's documents. Tenderer should be aware of the effects of this latter principle, and should emphasize any non-compliance. For example, if a tenderer provides details which are inconsistent with the requirements specified in a document having a higher priority, it is these latter specified requirements which will have priority and thus be binding on the Contractor.

It might seem unfair or incorrect for the Employer to thus be able to impose his requirements in circumstances where the tenderer provided details of his conflicting proposals, for the Employer to verify. However, giving priority to tenderer's proposals would have exposed the Employer to the possibility that the non-compliance was difficult to detect prior to award of the Contract. By giving priority to the Employer's documents, puts tenderers on notice that Employer's requirements are obligations, except to the extent that a non-compliance is mentioned in the Letter of Tender and thus brought to the Employer's attention. In this case, the Employer may regard this non-compliance as being part of a non-responsive and thus unacceptable Tender; or he may consider the non-compliance acceptable and incorporate it into the Contract by mentioning it in CONS' or P&DB's Letter of Acceptance or in the Contract Agreement. Under P&DB or EPCT, the Contractor takes the financial risk arising from the lump-sum pricing of the works which he designs. The Contractor may therefore wish to include many details in his Tender proposals. If any of these details do not comply with the Employer's Requirements, resolves the problem in favour of the Employer, as described above. However, if the Employer's

Requirements contain an imprecise requirement, a tenderer may be able to avoid the potential problems (which could otherwise arise due to differing interpretations of such a requirement) by detailing precisely how he has interpreted the imprecise requirement. In this case, the greater priority given to the imprecise requirement may be offset by the precision of the Tender proposal which would form part of the Contract. However, it is preferable to avoid this type of potential disagreement, by ensuring that the Contract does not contain imprecise requirements. They may, of course, be included in Instructions to Tenderers as guidance which does not become part of the Contract. Under CONS or P&DB, if there is an ambiguity or discrepancy within a particular contract document, empower the Engineer to issue a clarification or instruction. No consequences are stated, because they depend upon the particular circumstances. If a Variation is instructed,  EPCT-contains no equivalent power for the Employer to issue a clarification or instruction. If there is an ambiguity or discrepancy within one of the contract documents, the Parties should endeavor to reach agreement on how it should be resolved, which may result in an adjustment to the Contract Price. Although the General Conditions are stated to have a higher priority than the documents listed thereafter, provisions in these latter documents have priority over an inconsistent provision in each of these General Conditions which says that it applies "unless otherwise stated in the Contract". The priority list of documents for contract terms for construction, plant, and design-build and turnkey projects is presented below:

 CONS (Conditions of Contract for Construction,)

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 in accordance 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.

P&DB (Conditions of Contract for Plant and Design-Build)

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 in accordance 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 Employer's Requirements,

(g) the Schedules, and

(h) the Contractor's Proposal 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.

 

EPCT (Conditions of Contract for EPC/Turnkey Projects)

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 in accordance with the following

sequence:

(a) the Contract Agreement,

(b) the Particular Conditions,

(c) these General Conditions,

(d) the Employer's Requirements,

(e) the Tender and any other documents forming part of the Contract.

Source: The FIDIC Contracts Guide
CONDITIONS OF CONTRACT FOR CONSTRUCTION
CONDITIONS OF CONTRACT FOR PLANT AND DESIGN-BUILD
CONDITIONS OF CONTRACT FOR FOR EPC/TURNKEY PROJECTS