Wine without Cheese? (Why a construction contract needs an order of precedence clause)(Law Note)

wine and cheese

Reader Mailbag:

For today’s law note, I’m addressing a comment that came to me last week from Dave O’Hern of Miller O’Hern Construction.  Dave writes:

I am a general contractor doing a fuel tank replacement project for our county. In the specifications there is a spec for a UL 142 tank, on the plans the spec references UL 2085 – a much more expensive tank. My subcontractor bid the UL 142 tank. The specifications state that the specs and plans are on the same level of precedence.

The county wants me to furnish the more expensive tank without compensation citing the clause that states the plans and specs are complementary and what is called for by one is binding as if called by all and the most stringent requirement will apply.

My position is the word “stringent” according to Websters means “rigidly controlled, enforced, strict, severe.” The two specifications are written by Underwriter’s Laboratory and precisely decribe each type of tank clearly and without ambiguity for the purpose of rigidly controlling the qualities of the product. Consequently the two specifications are equally stringent. Stringent does not mean more expensive or what the pre-bid intent of the owner.

Is this sound reasoning, does it fall under Spearin and is there another defense I should take?

What Dave is experiencing is a poorly-constructed contract.  Obviously, the goal in a set of construction documents is to not have any conflicts.  However, between specifications, drawings, shop drawings, contract language, addendum, and change orders, the goal of absolute consistency in contract documents is impossible extremely hard to meet. 

The usual way around this very likely problem is to state the order of precedence of the various contract and construction documents, so that in the event of a conflict between two provisions, everyone knows which one prevails.  In the absence of any contract language stating the order of precedence, the parties are forced to argue contract law principles such as mutual mistake, which party is considered the contract drafter (and hence, disfavored), and other technical legal issues that numb the mind are only exciting to those of us crazy enough to go into the legal profession. 

Sure, you can have wine without cheese, but why would you?  The two should go together, in the same way that an order of precedence clause should go with any construction contract.

Dan has also raised the issue of “more stringent” requirements.  In general, when a contract contains instructions that are susceptible to two or more reasonable interpretations, these are considered “ambiguities”.  There is generally a duty on the contractor to point out conflicts between the documents.  However, where a conflict between the documents is not noticed by any party prior to the bidding, the plans arguably are defective under the Spearin doctrine

So, back to Dan’s question.  Dan– your situation is a mess!  I agree that your reasoning on the stringent requirements is sound; whether or not a Court will agree with your position remains to be determined.  Time to hire a good construction lawyer in your jurisdiction to negotiate a resolution to your situation!  (I see that you are in Arizona.  If you don’t have a lawyer, let me know and I’ll try to get you a recommendation or two).

Have you ever encountered a contract like Dan’s?  Did it cause any problems with conflicting documents later on?  How did you handle the situation?


 Photo:  054/365: Wine, cheese and crackers via Addison Berry/Creative Commons license. 

Fun & Apps for Designers (Tue Tip)

Apologies for the absence….. I took an extended vacation and, as always, work has piled up.  Yet another real world example of the need to plan, and then plan some more, for holidays and downtime on the job


Jumping back into the swing of things, today I came across an article that is sure to have a gem or two of interest to any designer.  Check out this article on iphone and ipad apps for designers.  There are some neat finds among the list, including:

  • the ColorSnap app by Sherwin Williams, which allows you to use your iPhone as a portable color swatch
  • the CAD Touch app, which allows you to draw floor plans, land surfaces, diagrams, and more on the fly

There are many more apps listed in the article that you might find helpful.  Happy exploring!

Do you have a favorite design application?  Share in the comments, below.


Photo:  iPhone firmware/software update 1.0.1 via Scott Schiller/Creative Commons license.

Public Speaking: The Ultimate Differentiator in Your Engineering Career (Guest Post)

This post is an excerpt from Anthony Fasano’s new book Engineer Your Own Success: 7 Key Elements to Creating an Extraordinary Engineering Career.  Anthony is a design engineer turned executive coach, speaker and author and now spends his time helping engineers around the world to create careers that are exciting, enjoyable, and rewarding while being well-balanced. In this post Anthony will discuss the impact that effective public speaking skills can have on your engineering career.

Engineer Your Own Success Book

If you were to choose only one thing to do to improve your communication skills and your engineering career overall, I would recommend developing your public speaking skills.

Many engineering professionals, especially those early in their career, don’t realize how important it is to be a good public speaker. In fact, some engineers are terrified of public speaking because of their introverted personality. Fortunately, the ability to be a good public speaker is not one of those “You either have it or you don’t” skills. It is something that you can learn and develop over time.

As an engineering professional, your ability to present to people, whether it be to 2 or 2000 people, can make or break your career. Once I realized that I had a powerful message about career advancement that I wanted to communicate to professionals, I decided that I was going to learn how to speak effectively so I could get my message out to the world.

To develop my speaking skills, I joined Toastmasters International, a non-profit educational organization that operates chapters around the world for the purpose of helping members improve their communication, public speaking, and leadership skills. Groups like Toastmasters help you to not only develop your speaking skills, but also to increase your confidence and ultimately help you become a great communicator. You will learn how to speak spontaneously and also have the opportunity to prepare and present longer speeches with specific goals and objectives. These organizations provide a comfortable, supportive atmosphere for you to practice your public speaking. Odds are that every person in your local chapter was just as fearful, if not more, of public speaking at some point in their life as you may have been.

Having great public speaking skills is an absolute MUST in order to have an extraordinary career! In addition to improving your communication skills, public speaking will help you to bring new business into your firm. Prospective clients may see you presenting a project at a local board meeting, and the next thing you know they are calling you to take over their project. Your company may be impressed enough with your presentation skills that they may ask you to accompany a marketing professional in meetings with prospective clients. The list of benefits is endless.

These skills will also prepare you for being a manager, if you are not one already. Managers have to be able to clearly communicate messages to their team and your employer may take that into account when considering you for a promotion.

If you are reading this and are terrified of public speaking, I have great news for you. With some hard work, determination, and practice, you can become a great public speaker. Believe me, becoming an effective communicator and public speaker could very well be the ultimate differentiator between hoping that all of your career goals and dreams come true and actually ACHIEVING THEM!


FYI, Anthony is also donating a portion of each book sold to Engineers Without Borders.


Your turn:  do you have a fear of public speaking?  Have you considered how public speaking is required to generate your own clients?  Share your thoughts in the comments below.


Renewables & Incentives Database (Tue Tip)

Isun and cloudsnterested in knowing what state incentives may be applicable for your energy efficient construction project?  Check out the Database of State Incentives for Renewables & Efficiency (DSIRE). 

The searchable database provides a comprehensive source of information on state, local, utility and federal incentives and policies that promote renewable energy and energy efficiency.

Do you have a “hot” link to share?  Let me know!  And, sign up for email delivery of all blog posts right to your in-box so you’ll never miss a post!


Photo (c) Joshua Sosrosaputro via Creative Commons license.

You Cannot Have Your Cake and Eat It, Too! (Estoppel) (law note)

slice of chocolate cake We’ve talked previously about the statute of limitations  here at Construction Law in North Carolina.  A recent North Carolina Court of Appeals case gives a vivid example of one exception to a statute of limitations defense– estoppel. Estoppel is the act of lulling a party into not filing a lawsuit through your actions.  You are then deemed “estopped” from asserting the statute of limitations as a defense. That is, a party cannot use the statute of limitations as a sword to benefit from his own conduct which induced a plaintiff to delay filing suit.  Proof of actual fraud or bad faith is not required; however.  The “basic question” is whether defendant’s actions “have lulled the plaintiff into a false sense of security and so induced [the plaintiff[ not to institute suit in the requisite time period.”  Cleveland Const., Inc. v. Ellis-Don Const., Inc. et al., __ N.C. App. __, 709 S.E.2d 512 (5 April 2011). In that case, the general contractor on a public hospital project, Ellis-Don, asked Cleveland Construction Inc. (CCI), one of its subcontractors, to delay making its own delay claim on the project.  The general contractor sent a letter to CCI  asking it not to sue it in order to present a “unified front” to the State during the State Construction Office’s administrative claims process. The Court found that Ellis-Don affirmatively represented to CCI that it was  pursuing CCI’s claims as part of its overall claim against the State. The Court further found that Ellis-Don affirmatively represented to CCI that CCI should not  initiate a claim because that would jeopardize the success of the total contractor recovery with the State.  As such, Ellis-Don lulled CCI into a false sense of security, as CCI reasonably believed that Ellis-Don would pass through to CCI any proceeds attributable to its claim from Ellis-Don’s settlement with the state.  Ellis-Don was, therefore, equitably estopped from asserting the statute of limitations when CCI later sued Ellis-Don on those same claims.   Here, Ellis-Don tried to benefit from including CCI’s claim in its overall claim at the State Construction Office, and later benefit from CCI’s failure to adhere to the time limits imposed on bringing claims.  The Court held that a contractor cannot have its cake and eat it too.  (After all, too much cake is bad for anyone). Practice Note:  Do not count on the theory of equitable estoppel for untimely claims.  A court could decide you were not reasonable in holding back from initiating legal action, in which case your claim would be denied.   Equitable theories are to prevent injustice, but you cannot and should not rely on them.  Have you ever delayed filing suit on the promises or statements of another party?  Did the Court find the other party was equitably estopped from claiming a statute of limitations defense, or did the Court allow such a claim?  Share your experience in the comments section below.


Photo:  (c) Dennis Mojado via Creative Commons license.

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