Editor's Notes

Most construction contracts include an “order of precedence” clause. The various contract documents are listed and the clause states that in the event of a conflict or discrepancy within the documents, the documents shall take precedence in the order listed. It is easy to view these clauses as dry boilerplate. In actual application, however, they can be significant.


The contract plans for a street improvement project depicted sidewalks to be constructed, but did not indicate pedestrian walkways or crossovers. Standard highway specifications, incorporated by reference into the contract, called for such pedestrian protections during construction. When a pedestrian was struck and killed, the order of precedence clause became crucial.


Another case also involved contract interpretation and safety responsibilities. An injured worker argued that the project architect, tasked with weekly monitoring of the construction site for contract compliance, should have detected and warned of an unsafe practice. Fortunately for the architect, the professional services agreement with the project owner spelled out what the architect was, and was not, responsible for monitoring.


The third case in this issue involves a contractor’s recovery under a termination for the convenience of the government clause. The federal government argued that the contractor’s breach of contract prior to termination barred any recovery of performance costs incurred before the effective date of termination. The contractor responded that the government should have terminated the contract for default if it wanted to hold the contractor responsible.




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