The rule in the regulation
The regulation on requirements for a building design (regulation no 97 of the Minister of Economic Affairs and Infrastructure of 17.07.2015) sets two linked requirements for a design. First, the design must be legible, free of conflicts, comprehensible and unambiguous to a specialist in the relevant field (§ 2(1)). Second, if a conflict nevertheless occurs, the regulation says how the design is to be read.
The wording of § 6(2) is that, in the event of a conflict between documents of the same stage, "the explanatory memorandum is followed first, then the drawings and then the other documents contained in the building design" (unofficial translation). The exception is the tööprojekt (the working design), which has no explanatory memorandum: in that case the drawings are followed first (§ 6(3)).
| Situation | What prevails | Provision |
|---|---|---|
| The specification and a drawing conflict (same stage) | the specification | regulation no 97, § 6(2) |
| A drawing and another design document conflict (same stage) | the drawing | § 6(2) |
| The working design has no specification | the drawings first | § 6(3) |
| The solutions in the previous and the next stage differ | the previous stage approved by the client is the binding brief for the next | § 5(3) |
| The main text of the contract, the tender and the design conflict | the regulation does not govern this; the contract decides or, failing that, interpretation | VÕS § 29 |
The rule is simple, but its scope is limited. It deals with the documents of one stage within one design. It does not say whether the design or the price schedule prevails, the design or a technical description that the contractor attached to its tender, or whether the main text of the contract or the general terms prevail. Those are questions about the order of contract documents.
Who is responsible for the integrity of the design
The regulation places responsibility for integrity on the peaprojekteerija (the lead designer). The lead designer is responsible for the integrity of the parts of the design and their compatibility with one another (§ 2(3) to (5)). A conflict between the specification and a drawing is therefore primarily a defect in the design, not the contractor's error.
Towards the töövõtja (the contractor), the position is different. According to the Supreme Court's case-law review, the client is responsible for the conformity of the design it gives to the contractor (Supreme Court civil chamber judgment of 19.12.2017, 2-15-15662/55, para 19). If a conflict leads to an additional cost, the client generally bears it towards the contractor, and may then claim compensation from the designer under the contract between them. The extent of the designer's liability is covered in the article The designer's liability and design errors.
How a conflict reaches the final invoice
A conflict that was not noticed before the contract was signed becomes, on site, a choice between two solutions, and if the chosen solution is more expensive than the one priced, a claim for additional work follows. The contractor usually argues that it priced the cheaper version; the client argues that the more expensive one was in the price. The order in the regulation gives that dispute a starting point.
If the specification and the drawings conflict and the client wants the solution shown on the drawing, but the specification shows another, the specification prevails when the design is read. If the contractor priced according to the specification, ordering the solution matching the drawing is a change whose price must be agreed. If the specification contains the more expensive solution and the contractor priced the cheaper drawing, it is harder for the contractor to argue that the more expensive solution was not in the price.
The order does not settle everything. If the contract does not refer to the design as a whole, or if the tender contains its own description, the first thing to decide is which documents determine the content of the contract at all. This is covered in the article What the contract price covers and what it does not. And if the contract contains a non-binding estimate, an additional cost linked to a conflict is one of the possible reasons for an overrun, dealt with under the conditions of VÕS § 639(2).
A fictional example
The following example is fictional. The specification in the main design of an office building requires suspended ceilings in the rooms, but the section drawings of the corridors show the ceiling without a suspended ceiling. The contractor prices suspended ceilings for the rooms only and enters the corridor ceiling finish in the price schedule as painting.
During construction, the client requires suspended ceilings to be installed in the corridors as well. The contractor presents this as additional work. If the specification expressly requires suspended ceilings in all interior spaces, the specification prevails when the design is read, and the client has grounds to argue that the corridors were in the price. If the specification refers only to "rooms" and does not mention corridors, there is no conflict and this is a new order. The difference turns on a single word, and that word is worth reading before signing.
The order within the design and the order of the contract
The order in the regulation applies within the design; the order of contract documents must be written by the contract. A construction contract usually consists of several documents: the main text of the contract, special conditions, general terms, the tender, the price schedule, the technical description and the design. If they conflict, regulation no 97 does not help; the answer comes from the contract or from interpretation under VÕS § 29, which takes into account, among other things, the parties' preliminary negotiations, their conduct and the usual meaning of expressions in the field.
It is in the client's interest to write the order down. One possible solution is to list the documents in the contract in descending order: first the main text of the contract and the special conditions, then the general terms, then the technical description and the design, then the tender and the price schedule. Within the design, the contract may refer to the order in § 6(2) of regulation no 97 or set a different one if the client has a reason to do so.
Industry general terms may contain their own order. If the contract refers to general terms for construction contracts for work (for example ETÜ 2013, to which the Supreme Court's case-law review also refers), it is necessary to check what they say about the order of documents and whether the special conditions of the contract depart from them. The relationship between the special conditions and the general terms must also be written into the contract.
The position of the price schedule in the order is particularly important for the client. If the price schedule ranks above the design, a line missing from the price schedule may mean that the work is not in the price, even though it is shown in the design. If the design ranks above the price schedule, a gap in the price schedule is the contractor's risk. Which solution is better for the client depends on which document is more complete.
Differences between stages and changes to the design
Not every difference is a conflict within the same stage. If the contract was signed on the basis of the põhiprojekt (the main design) and construction follows the working design, the working design may refine or change the solution. Under the regulation, the previous stage approved by the client is the binding brief for the next stage (§ 5(3)), so the working design should not depart from the main design without the client's consent.
A change to the design must be documented. Under § 12 of the regulation, changes are accompanied by an explanatory memorandum describing the reasons and possible effects (subsection 7) and by a list of the documents that are valid, added, replaced and no longer valid (subsection 8). If the design is changed by a person other than the original author, the original author's opinion is required (subsection 4). For the client, the list of valid documents is as important for the contract price as the drawing itself: it tells you which version the price was given for and which one is being built. If the completed building ultimately differs from the design, building permit and register questions arise in addition to the price question; they are covered in the article on what happens when what is built differs from the design.
What the client does before signing and during construction
Before signing is when a conflict is cheapest to resolve. At the tender stage, the client can ask tenderers to report any conflicts they notice and answer them in writing, in the same way for everyone; the answers must be added to the contract documents. It is worth writing into the contract that the contractor has reviewed the documents and will report any conflicts discovered during construction before carrying out the work concerned.
During construction, the question is the decision and its record. When a conflict is discovered, the contractor should notify it in writing, the designer should provide a solution and the client should decide whether the solution is in the price or is a change, before the work is done. The decision is entered in the ehituspäevik (the construction diary) or in the minutes of a site meeting, so that it can be proved later.
The client can also look for conflicts before the procurement. The simplest check is to compare the main material and solution requirements of the specification with the corresponding drawings and with the lines of the technical description, starting with the high-cost parts: load-bearing structures, the facade, building services and finishes. Not every conflict will be found, but every conflict found before the procurement is one claim for additional work fewer. Conflicts found must be corrected by the designer before the design goes to tenderers, because once the contract is signed, a correction is already a change.
Tenderers' questions are also information. If several tenderers ask about the same point, it is a sign that the document is ambiguous. An answer given to everyone in writing and added to the contract documents closes that point both for the price and for later interpretation.
Omanikujärelevalve (owner's supervision) does not assess the suitability of the solution. Under the procedure for owner's supervision, it is not the task of supervision to assess the suitability of the architectural or technical solution presented in the design, although it may propose changes (regulation no 80, § 4(6)). Resolving the conflict therefore remains with the designer, and the decision with the client.
This article describes the legal rules as at the date of checking and is intended for professional orientation. It does not replace legal advice or a review of the specific case.