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Order of Precedence Clause

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#1 TC2012

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Posted 29 January 2013 - 10:09 PM

FAR 14.201-7(d) provides that " When contracting by sealed bidding the contracting officer shall insert the clause at 52.214-29, Order of Precedence -- Sealed Bidding, in solicitations and contracts to which the uniform contract format applies."

Question: When using the USACE Contract format for a construction IFB should FAR 52.214-29 with conversion table showing UCF to USACE format be incorporated in the solicitation contract clauses? If not, why not?

EFARS Part 14 provides the conversion from UCF to USACE format. What clause should be included in the solicitation when the USACE format is being used to resolve inconsistencies between specifications and the FAR clauses. I know FAR clauses take precedence over the specifications, but what clause provides the legal basis for this statement?

#2 Vern Edwards

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Posted 29 January 2013 - 10:29 PM

No. The clause is used only in solicitations and contracts prepared in the Uniform Contract Format. It is not used for construction contracts. Why not? Among other reasons, the clause does not mention drawings, which might be categorized as attachments under the clause. The clause puts the specifications dead last in the order of precedence, after attachments. But under the Specifications and Drawings for Construction clause, FAR 52.236-21. the specifications take precedence over drawings, which is common practice in the construction industry. Do you know why?

#3 FAR Fetched

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Posted 30 January 2013 - 12:53 PM

...But under the Specifications and Drawings for Construction clause, FAR 52.236-21. the specifications take precedence over drawings, which is common practice in the construction industry. Do you know why?


Are you asking why the specs take precedence or why it's common practice in the constuction industry?

I'm not sure I know the answer to either, it's just a "that's the way it's always been" answer (which I hate giving anyone btw).

Also, in my experience, I seen more screwed up drawings than specs (but I'm sure that adds nothing to the "why" question).

#4 Vern Edwards

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Posted 30 January 2013 - 01:02 PM

I was asking if TC2012 knows why the specs take precedence. I know why. I want to see if he/she does.

#5 Whynot

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Posted 30 January 2013 - 03:11 PM

Maybe, some drawings could also include specifications. The drawings may state a value – say make this thing 10 feet 6 inches long and 4 inches thick, as opposed to the contractor having to measure a scaled drawing with a ruler and calculating a length and width – more precise.

#6 joel hoffman

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Posted 01 February 2013 - 10:11 AM

FAR 14.201-7(d) provides that " When contracting by sealed bidding the contracting officer shall insert the clause at 52.214-29, Order of Precedence -- Sealed Bidding, in solicitations and contracts to which the uniform contract format applies."

Question: When using the USACE Contract format for a construction IFB should FAR 52.214-29 with conversion table showing UCF to USACE format be incorporated in the solicitation contract clauses? If not, why not?

EFARS Part 14 provides the conversion from UCF to USACE format. What clause should be included in the solicitation when the USACE format is being used to resolve inconsistencies between specifications and the FAR clauses. I know FAR clauses take precedence over the specifications, but what clause provides the legal basis for this statement?


Sorry for the late response. I've been deer hunting. In addition to FAR 52.236-21, Specifications and Drawings for Construction clause mentioned above, see DFARS Clause 252.236-7001 Contract Drawings and Specifications.

However, my advice to you is DO NOT USE FAR Clause 52.214-29, Order of Precedence -- Sealed Bidding in a USACE construction format contract. As you said, it is prescribed for use with the Uniform Contract Format, not with other contract formats.

I agree with the precautions and possible conflicts described above regarding conflicts between construction design specifications and drawings ("Other documents, exhibits, and attachments"). This must then be resolved by 52.236-21 and 252.236-7001 clauses, which contradict the 52.214-29 clause.

Also, if the corresponding clause for construction RFP's is used (52.215-8 -- Order of Precedence -- Uniform Contract Format), If an offeror (RFP) or proposer's (task order) proposal is incorporated into the contract at award, it might override the government's specifications in the event a deviation is discovered after award.

If the proposed USACE Acquisition Instructions (UAI) ever get finalized, they will contain an order of precedence clause for use in design-build contracts, which incorporate the accepted proposal. In my opinion, it should be used in RFP's for construction contracts that incorporate the proposal, too. I've seen it successfully used for at least 24 years or so on DB contracts and on fully designed construction RFP's. It is used in conjunction with the FAR and DFARS clauses mentioned above.

#7 TC2012

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Posted 08 February 2013 - 11:51 AM

No. The clause is used only in solicitations and contracts prepared in the Uniform Contract Format. It is not used for construction contracts. Why not? Among other reasons, the clause does not mention drawings, which might be categorized as attachments under the clause. The clause puts the specifications dead last in the order of precedence, after attachments. But under the Specifications and Drawings for Construction clause, FAR 52.236-21. the specifications take precedence over drawings, which is common practice in the construction industry. Do you know why?



Sorry for the delayed response as I have been out on the road for a while.

Vern, I don't know why specifications takes precedence over drawings other than based on the requirements of FAR 52.236-21.

2nd question. Ok, so if you don't use the 52.214-29 nor 52.215-8 what determined the order of precedence between the various documents. For example a statement in Division 1 of the Specification conflicts with a FAR Clause.

True story: A/E wrote in Div. 1 this statement "The COR shall issue a certificate of substantial completion prior to the government taking occupancy of any portion of the facility." I know the government should have read what the design A/E wrote in Division 1, but tell me who does.

The Use and Prossession clause indicates the Government may take use and possession of any part of the facility at any time it deems necessary and says nothing about issuing a substantial completion certificate. If the Government didn't issue a certificate did it breach the contract?

Does Division 1 take precendence or Use and Possession?

If you never use either of the Order of Prec. clasues in construction why does EFARS have a conversion chart from USACE formate to UCF?

If I am arguing in a Contracting Officer's final decision in reponse to a claim what do I base my reliance that a FAR clause takes precedence over a statement made by an A/E in the specification? For example: A/E writes: "The warranty on the mechancial system shall run for 1 year from the completion of Phase 2 work. Phase 1 work was completed a year earlier and the government took benefical occupancy. The Warranty of Construction clause indicates the warranty begins at the time the government occupies and uses the facility. It doesn't make any sense that the warranty on all the mechanical system would run for 1 year pass the date of completion of Phase 2 work which is inconsistant with the FAR clause.

If we don't use an Order of Precence clause in construction what clause indicates that a FAR clause takes precendence over specifications and drawings? :rolleyes:

#8 TC2012

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Posted 08 February 2013 - 01:59 PM

Sorry for the late response. I've been deer hunting. In addition to FAR 52.236-21, Specifications and Drawings for Construction clause mentioned above, see DFARS Clause 252.236-7001 Contract Drawings and Specifications.

However, my advice to you is DO NOT USE FAR Clause 52.214-29, Order of Precedence -- Sealed Bidding in a USACE construction format contract. As you said, it is prescribed for use with the Uniform Contract Format, not with other contract formats.

I agree with the precautions and possible conflicts described above regarding conflicts between construction design specifications and drawings ("Other documents, exhibits, and attachments"). This must then be resolved by 52.236-21 and 252.236-7001 clauses, which contradict the 52.214-29 clause.

Also, if the corresponding clause for construction RFP's is used (52.215-8 -- Order of Precedence -- Uniform Contract Format), If an offeror (RFP) or proposer's (task order) proposal is incorporated into the contract at award, it might override the government's specifications in the event a deviation is discovered after award.

If the proposed USACE Acquisition Instructions (UAI) ever get finalized, they will contain an order of precedence clause for use in design-build contracts, which incorporate the accepted proposal. In my opinion, it should be used in RFP's for construction contracts that incorporate the proposal, too. I've seen it successfully used for at least 24 years or so on DB contracts and on fully designed construction RFP's. It is used in conjunction with the FAR and DFARS clauses mentioned above.



I have been told that the word "specifications" as used in the Order of Precedence Clause is referring to both the specifications and drawings. (Lawyer talk) FAR Part 2 does not provide a definition for specifications, but the definition that is used In "engineering, manufacturing, and business, it is vital for suppliers, purchasers, and users of materials, products, or services to understand and agree upon all requirements. A specification is a type of a standard which is often referenced by a contract or procurement document. It provides the necessary details about the specific requirements."

Legally it might appear that when using the word specification it might well refer to both the drawing and the specification. Then FAR 52.236-21 and DFARS 252.236-7001 futher breaks down the order of precedence between drawings and specification and based on the size of the details on the drawings.

My bottom line question is legally speaking, if you don't use the Order of Precedence Clause what legally defines how inconsistancies are resolved between the FAR Clauses in the contract and the specifciations? What legally says the FAR Clause trumps the Division 1 of the specification if the clause with conversion chart is not included in the contract?

In Design-Build construction I also believe it is important to define that proposed betterments and/or deviations and if applicable the techncial proposal takes precedence over the original perfromance or prescriptive specifications..

#9 Vern Edwards

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Posted 08 February 2013 - 03:06 PM

2nd question. Ok, so if you don't use the 52.214-29 nor 52.215-8 what determined the order of precedence between the various documents. For example a statement in Division 1 of the Specification conflicts with a FAR Clause.


You are going to have to explain "Division 1." There is no governmentwide format for construction contracts. Some formats might not use "divisions." Others might use divisions, but specify different content for specific divisions. There are also commercial master specs. So what "Division 1" are you talking about?

If a conflict cannot be settled by means of an order of precedence clause, then the standard rules of contract interpretation apply and the document -- specs and clauses -- must be interpreted as a whole.

True story: A/E wrote in Div. 1 this statement "The COR shall issue a certificate of substantial completion prior to the government taking occupancy of any portion of the facility." I know the government should have read what the design A/E wrote in Division 1, but tell me who does.

The Use and Prossession clause indicates the Government may take use and possession of any part of the facility at any time it deems necessary and says nothing about issuing a substantial completion certificate. If the Government didn't issue a certificate did it breach the contract?

Does Division 1 take precendence or Use and Possession?


Why do you ask? There is no conflict. The fact that the Division 1 requires a certificate and the Use and Possession clause says nothing about a certificate does not constitute a conflict between the two. My interpretation when reading Division 1 and the clause together would be that a certificate is required.

If you never use either of the Order of Prec. clasues in construction why does EFARS have a conversion chart from USACE formate to UCF?


I have no idea. Ask someone in the Corps.

If I am arguing in a Contracting Officer's final decision in reponse to a claim what do I base my reliance that a FAR clause takes precedence over a statement made by an A/E in the specification?



In the absence of an order of precedence clause, and in the absence of other facts, you have nothing to rely on.

For example: A/E writes: "The warranty on the mechancial system shall run for 1 year from the completion of Phase 2 work. Phase 1 work was completed a year earlier and the government took benefical occupancy. The Warranty of Construction clause indicates the warranty begins at the time the government occupies and uses the facility. It doesn't make any sense that the warranty on all the mechanical system would run for 1 year pass the date of completion of Phase 2 work which is inconsistant with the FAR clause.


When read together in the absence of an order of precedence clause there appears to be a patently ambiguity. The contractor had a duty to inquire before signing the contract. I have no idea how a court would interpret the contract in the face of so obvious an ambiguity.

If we don't use an Order of Precence clause in construction what clause indicates that a FAR clause takes precendence over specifications and drawings? :rolleyes:


None. That does not mean that you cannot write one.

#10 joel hoffman

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Posted 08 February 2013 - 03:34 PM

My bottom line question is legally speaking, if you don't use the Order of Precedence Clause what legally defines how inconsistancies are resolved between the FAR Clauses in the contract and the specifciations? What legally says the FAR Clause trumps the Division 1 of the specification if the clause with conversion chart is not included in the contract?


TC, according to Nash and Cibinic's "Administration of Government Contracts, 4th Edition", the common law order of precedence rule is used in Government contracts when a specific order of precedence clause is not applicable. The general rule of common law is that specific provisions will rule over general provisions and that written or typed provisions will prevail over general provisions, Restatement, Second, Contracts § 203 ( c) and ( d). See page 179 of the reference.

On page 180 it states that the "general rule of common law does not apply where a specific provision conflicts with a standard government contract clause that is required by statute or regulation." Reading further on page 180, in discussing an ENGBCA decision in Hydracon Corp., ENGBCA 3462, 75-2 BCA ,¶ 11,489, The Board said "It is an established canon that standard clauses for Government contracts, which are required by law and by regulations having the effect of law, cannot be contradicted by other specially drafted provisions so that they are, in effect, written out of the contract or subordinated to such special provisions."

You also said:

In Design-Build construction I also believe it is important to define that proposed betterments and/or deviations and if applicable the techncial proposal takes precedence over the original perfromance or prescriptive specifications..


TC, I disagree with your position that deviations in a proposal should take precedence over the original performance or prescriptive specifications. In USACE Design-Build contracts, the "new" O.O.P. clause I mentioned above will state, in the event of a conflict between the accepted proposal and the solicitation requirements:

"... ( b ) In the event of conflict or inconsistency between any of the provisions of this contract, precedence shall be given in the following order:

(1) Betterments: Any portions of the accepted proposal which both conform to and exceed the provisions of the solicitation.

(2) The provisions of the solicitation. (See also Contract Clause: SPECIFICATIONS AND DRAWINGS FOR CONSTRUCTION.)

(3) All other provisions of the accepted proposal.

(4) Any design products including, but not limited to, plans, specifications, engineering studies and analyses, shop drawings, equipment installation drawings, etc. These are "deliverables" under the contract and are not part of the contract itself. Design products must conform with all provisions of the contract, in the order of precedence herein."

There is a well established principle of Federal procurement, stated in many protest decisions, that a proposal, in order to be awardable, must comply with all and not deviate from any material requirements of the solicitation. There is discussion of this in Nash and Cibinic's "Formation of Government Contracts" (I only have the Third Edition). See Chapter 6, Basic Negotiation Procedures, under "Non-Conforming Offers" , starting on page 781 in my Third Edition. On page 781 Nash and Cibinic say If a proposal contains a deviation that the government would like to accept, "[t]he government may not award to that offeror but must amend the [solicitation] to permit other offerors to propose to the deviation." See Labat-Anderson, Inc., 71 Comp Gen. Dec. B-244559.3 93-1 CPD ¶ 193.

I will reiterate that you should not use the FAR Order of Precedence Clause in the USACE, CSI Master Format, construction contract format. It is written for and specifically prescribed only for us with the Uniform Contract Format, not for Master Format. By the way that MATRIX in EFARS 14 is obsolete anyway. It refers to an old edition of the CSI Master Format. In addition, EFARS never said to include the clause or the clause with the Matrix.

#11 joel hoffman

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Posted 08 February 2013 - 03:53 PM

I don't know why the MATRIX was included in EFARS 14, other than to illustrate to those who are used to the Uniform Contract Format what the corresponding layout is under the CSI Master Format. That format was from long ago in the early 1990's (I think that the last edition was "Master Format 1995") . Master Format was totally updated and revised by the Construction Specifications Institute in 2004 and adopted by the Tri-Services Specifications Committee several years ago for the Unified Facility Guide Specifications (UFGS).

Vern, "Division 01" refers to the Specification sections for various general conditions in construction contracts. Division 00 contains the various pre-award provisions, the RFP or IFB, (RFP) eval criteria and basis of award, wage rates, contract clauses and special provisions, etc. I think that there are now somewhere around 41 to 43 Divisions, in place of the old Division 0 through 16 breakdown of the CSI Master Format 1995 contract format.

#12 joel hoffman

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Posted 08 February 2013 - 04:07 PM

If I am arguing in a Contracting Officer's final decision in reponse to a claim what do I base my reliance that a FAR clause takes precedence over a statement made by an A/E in the specification?


TC, If you are arguing anything in a KO's Decision, I certainly hope that you would:

1) seek the advice of your USACE District counsel on this and other legal questions and,

2) Purchase, READ and use the George Washington University, Government Contracts Program Textbooks that Professors Ralph Nash and the late John Cibinic wrote with others. I especially recommend "Administration of Government Contracts" and "Formation of Government Contracts".

Good Luck

#13 joel hoffman

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Posted 08 February 2013 - 04:13 PM

I have been told that the word "specifications" as used in the Order of Precedence Clause is referring to both the specifications and drawings. (Lawyer talk) FAR Part 2 does not provide a definition for specifications, but the definition that is used In "engineering, manufacturing, and business, it is vital for suppliers, purchasers, and users of materials, products, or services to understand and agree upon all requirements. A specification is a type of a standard which is often referenced by a contract or procurement document. It provides the necessary details about the specific requirements."

Legally it might appear that when using the word specification it might well refer to both the drawing and the specification. Then FAR 52.236-21 and DFARS 252.236-7001 futher breaks down the order of precedence between drawings and specification and based on the size of the details on the drawings.


This is another reason not to use the FAR clause "Order of Precedence" in USACE construction contracts. Those contracts are required to use the CSI Master Format. The various construction contract clauses distinguish between "specifications" and "drawings", as do the various claims decisions that deal with them.

#14 TC2012

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Posted 09 February 2013 - 05:08 PM

You are going to have to explain "Division 1." There is no governmentwide format for construction contracts. Some formats might not use "divisions." Others might use divisions, but specify different content for specific divisions. There are also commercial master specs. So what "Division 1" are you talking about?

Construction specifications are prepared in Construction Specification Insitute ICSI) format Division 1 thru 33 Division 1 is always General Requirements. I have never seen a construction specification for a facility without specifications in CSI format. This is standard in the construction industry.

If a conflict cannot be settled by means of an order of precedence clause, then the standard rules of contract interpretation apply and the document -- specs and clauses -- must be interpreted as a whole.



Why do you ask? There is no conflict. The fact that the Division 1 requires a certificate and the Use and Possession clause says nothing about a certificate does not constitute a conflict between the two. My interpretation when reading Division 1 and the clause together would be that a certificate is required.



I have no idea. Ask someone in the Corps.



In the absence of an order of precedence clause, and in the absence of other facts, you have nothing to rely on.



When read together in the absence of an order of precedence clause there appears to be a patently ambiguity. The contractor had a duty to inquire before signing the contract. I have no idea how a court would interpret the contract in the face of so obvious an ambiguity.



None. That does not mean that you cannot write one.



#15 TC2012

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Posted 09 February 2013 - 05:30 PM

TC, according to Nash and Cibinic's "Administration of Government Contracts, 4th Edition", the common law order of precedence rule is used in Government contracts when a specific order of precedence clause is not applicable. The general rule of common law is that specific provisions will rule over general provisions and that written or typed provisions will prevail over general provisions, Restatement, Second, Contracts § 203 ( c) and ( d). See page 179 of the reference.

On page 180 it states that the "general rule of common law does not apply where a specific provision conflicts with a standard government contract clause that is required by statute or regulation." Reading further on page 180, in discussing an ENGBCA decision in Hydracon Corp., ENGBCA 3462, 75-2 BCA ,¶ 11,489, The Board said "It is an established canon that standard clauses for Government contracts, which are required by law and by regulations having the effect of law, cannot be contradicted by other specially drafted provisions so that they are, in effect, written out of the contract or subordinated to such special provisions."

You also said:



TC, I disagree with your position that deviations in a proposal should take precedence over the original performance or prescriptive specifications. In USACE Design-Build contracts, the "new" O.O.P. clause I mentioned above will state, in the event of a conflict between the accepted proposal and the solicitation requirements:

"... ( b ) In the event of conflict or inconsistency between any of the provisions of this contract, precedence shall be given in the following order:

(1) Betterments: Any portions of the accepted proposal which both conform to and exceed the provisions of the solicitation.

(2) The provisions of the solicitation. (See also Contract Clause: SPECIFICATIONS AND DRAWINGS FOR CONSTRUCTION.)

(3) All other provisions of the accepted proposal.

(4) Any design products including, but not limited to, plans, specifications, engineering studies and analyses, shop drawings, equipment installation drawings, etc. These are "deliverables" under the contract and are not part of the contract itself. Design products must conform with all provisions of the contract, in the order of precedence herein."

There is a well established principle of Federal procurement, stated in many protest decisions, that a proposal, in order to be awardable, must comply with all and not deviate from any material requirements of the solicitation. There is discussion of this in Nash and Cibinic's "Formation of Government Contracts" (I only have the Third Edition). See Chapter 6, Basic Negotiation Procedures, under "Non-Conforming Offers" , starting on page 781 in my Third Edition. On page 781 Nash and Cibinic say If a proposal contains a deviation that the government would like to accept, "[t]he government may not award to that offeror but must amend the [solicitation] to permit other offerors to propose to the deviation." See Labat-Anderson, Inc., 71 Comp Gen. Dec. B-244559.3 93-1 CPD ¶ 193.

I will reiterate that you should not use the FAR Order of Precedence Clause in the USACE, CSI Master Format, construction contract format. It is written for and specifically prescribed only for us with the Uniform Contract Format, not for Master Format. By the way that MATRIX in EFARS 14 is obsolete anyway. It refers to an old edition of the CSI Master Format. In addition, EFARS never said to include the clause or the clause with the Matrix.


Joel, Thanks for the information.

#16 joel hoffman

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Posted 10 February 2013 - 01:36 PM

You are welcome, TC. Im so used to using Master Format that i havent thought mucH about it. Those were good questions you brought up. Part of my job over the past 32 years with the Corps has been resolution of contract interpretation issues and claims I was very lucky to obtain a copy of the "Administration of Federal Contracts" book back in 1981 or so. Somebody stole ithat one in Saudi Arabia in 1983 so it must have been popular with contractors, too, :). I had to replace it ASAP and locked it up!

Good luck!




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