For years, Priority of Documents clauses were
far more than housekeeping. They were a fertile ground for variations and claims: drawings said one thing, specs another, procedures a third – and the resulting clarification often led to time and money.
On today’s Saudi giga projects, that door is often shut. New drafting keeps the familiar hierarchy, then neutralises it. If a discrepancy is found, the Employer’s Representative “clarifies,” but there’s no entitlement to time or cost. If standards conflict, the highest requirement prevails – again, without relief. The message is simple: once you frame the issue as a document inconsistency, you’ve likely killed your chances of a variation or claim.
The mindset shift
Under FIDIC-derived contracts, inconsistency led to clarification and then (often) to a Variation. Now, inconsistency leads to clarification but no recovery. The practical implication is not just “price in more risk.” It’s to change how you administer the contract and, crucially, how you communicate.
Think before you speak or write
As a contract administrator, think very carefully before notifying the Engineer of any “document discrepancy.” Citing the Priority of Documents clause is usually the fastest way to turn a live commercial issue into a dead end.
Instead, aim for the same operational outcome (direction from the Employer) via a different contractual route – one that preserves entitlement.
How to play it subtly
The safest course is to avoid framing issues as inconsistencies at all. Once you do, the Priority clause is triggered and recovery disappears. What you want instead is a record of an instruction or a decision from the Employer – something that ties back into a contractual mechanism that still carries entitlement.
- Seek instructions, not clarifications of inconsistencies. Phrase correspondence so that the Employer is directing the works. Directions can give rise to time and cost. Clarifications rarely do.
- Anchor issues in live provisions. Link your notices to clauses dealing with change, delay events, late information, or statutory obligations. These remain open doors.
- Use normal processes wisely. Submittals, approvals, progress reports, and meeting minutes all provide opportunities for the Employer to make decisions. Capture these moments as instructions, not as “resolutions of conflicts.”
- Keep notices clean. Serve them under the relevant change or delay clause, not under Priority of Documents. Separate the technical question from the commercial reservation of rights.
This is less about playing games and more about choosing the right frame. The wrong frame – “documents don’t match” – shuts the door. The right one – “please instruct” – keeps it open.
Pricing reality at tender
The tendering dilemma is obvious. Thousands of pages of documents, limited time, and now no safety net if conflicts emerge. You can’t reconcile everything, and you can’t load your price with endless contingency without becoming uncompetitive.
So the balance is delicate:
- Apply balanced contingencies. Some allowance is necessary, but it must be measured. Excessive loading risks losing the bid. Too little and you are exposed.
- Document your assumptions. Make it clear in your offer what standards, methods, or requirements you have priced against. This helps position later changes as variations, not “resolved discrepancies.”
- Push risk downstream where possible. Subcontracts and supply agreements should mirror the same obligations, so that tightening of standards is not absorbed solely at main contract level.
- Use tender clarifications. Raise the most obvious conflicts during the Q&A stage. Even if not resolved, the fact you flagged them demonstrates you did not knowingly accept unlimited risk.
In short, you must price with discipline. The employer-driven drafting has moved the risk, but you still need to stay competitive. That tension is the new reality of giga-project procurement.
What not to do
- Don’t headline correspondence with “discrepancy” or “Priority of Documents.” You’re naming the very clause that blocks you.
- Don’t delay notices waiting for a perfect picture. Early, neutral notices linked to change or delay provisions preserve rights.
- Don’t waste energy building claims around mismatches. Focus on the live contractual avenues that still provide entitlement.
Post-award discipline
- Records win: daily diaries, photos, minutes, and correspondence that demonstrate when and how Employer directions were given.
- Programme hygiene: keep logic credible and impacts linked to Employer decisions.
- Commercial hygiene: one issue, one notice, one thread. Make it easy for the Engineer to track and value the impact.
The way ahead
On KSA giga projects, Priority of Document clauses are no longer a claims engine. Treat them as a trap. The skill now is getting to the same operational decisions – which standard, which method, which sequence – through routes that preserve entitlement, and doing so without pulling the Priority of Document mismatch lever.
Price with focus, compete with discipline, and communicate with intent. The contractors who thrive won’t be the ones who spot discrepancies. They’ll be the ones who never frame them that way.
davidbrodiestedman@dispute-iq.com