Legal Ease

Contract discrepancies

Construction contract documents, which include specifications, drawings with notes, general and supplementary conditions, as well as the contract itself, sometimes contain conflicting terms. A conflict may be between plans and specifications, within the specifications or elsewhere. Such discrepancies may be identified when preparing a bid or not discovered until construction is under way and you learn the building owner or architect had a different view of what was required according to the contract.

Ambiguities discovered when preparing a bid can pose a dilemma. If you bid a job assuming the most stringent and demanding requirement, you most likely will not be the low bidder. If you base a bid on the less onerous requirement, you may face a costly problem during the job if the owner or designer had intended a more demanding provision to apply.

If you recognize the discrepancy before submitting a bid, the course of action is clear: make a prebid inquiry to ascertain exactly what is required. If the inquiry is made at a prebid meeting, the response should be recorded in the minutes distributed to all bidders. If the inquiry is not made at a prebid meeting, the inquiry should be made in writing within the time period set forth in the instructions to bidders or as soon as you notice the discrepancy. The clarification should be issued as an addendum to the contract documents.

If an ambiguity does not become apparent until during the course of construction, you will need to tell the general contractor, architect and/or building owner about your interpretation of the contract requirements. If the owner has a different view of what is required, abide by the owner's or architect's instructions so as to not delay completion of the job and follow the change order and claim procedures set forth in the contract documents. But will you be able to recover the extra expenses incurred if there was an ambiguity in the plans and specifications and you interpreted the contract requirements in a different, less costly manner than the owner?