Professional Documents
Culture Documents
Agreement and Schedule of Conditions of Building Contract Without Quantities 2006
Agreement and Schedule of Conditions of Building Contract Without Quantities 2006
Contents
PAGE PAGE
Articles of Agreement 5 5.5 Nominated Supply Contract
documents
Attestation 8 5.6 Further drawings, details, descriptive
schedules and simiiar documents
The General Conditions 5.7 Documents to be provided to
Contractor on time
interpretation and definitions 9 5.8 Electronic copies of drawings
5.9 Documents on Site
Governing iaw 5.10 Return of drawings
Singular, plurai, masculine and 5.11 Submission of manuals and
feminine assignment of warranties
Method of reference to clauses and 5.12 Submission of as-built drawings
Articies 5.13 Limits to use of documents
Articles of Agreement, Conditions and 5.14 Issue of Architects certificates
Appendix to be read as a whoie 5.15 Copy of notice to be given to
Clauses divided into sub-ciauses to be Employer
read as a whoie
Definitions Statutory obligations 24
13:1. L435) Tenders based on Schedule of
Quantities and Rates 6.1 Statutory Requirements
The roie of the Engineer 6.2 Compliance with the Statutory
Sectionai completion of the Works Requirements
Communications 6.3 Fees or charges
1-~'-s'<o'co Notices of defauit or determination to 6.4 Statutory undertakers and utility
be sent by special delivery companies
Parties to act reasonably and
expeditiously Setting out the Works 25
17.1 Substantiat Completion Certificate for 22A.1 Contractor to effect Contractors All
the Works Risks lnsurance of the Works
17.2 Separate Defects Liability Period for 22A.2 Insurer to be approved and remedy it
each Section and Relevant Part Contractor faits to insure
17.3 Recttfying defects 22A.3 Use of annual policy maintained by
17.4 Defects Rectification Certificate for the Contractor
Works
17.5 Separate certificate for each Section or 223 Insurance of the Works by the
Retevant Part Employer 43
17.6 Damage by a Specified Peril
17.7 Other rights and remedies 22B.1 Employer to effect Contractors All
Risks Insurance of the Works
18 Partiat possession by Employer 36 228.2 Remedy if Employer fails to insure
between
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. . . . . . . . . . . . . . . - . . - u . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V - . . . . . . . . . . . . . . . . . . . . . . . . . . ..
(the Contractor)
(1) Whereas the Employer wishes to have work carried out comprising:
. . . . . . . . . . . . . - . . - - . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - . . . . . . . . . . . . . . . - ~ . . . . . . . . . . . . . . . . . . . . ..
(the Works)
at ..................................................................................................................................................... ..
showing and describing the work to be carried out prepared by or under the direction of or at
the request of the Architect;
(2A) and whereas the Contractor has, based on the Tender Documents, made in the Form~of
Tender his calculation of the sum that he will require for carrying out the Works by preparing
and pricing the Schedule of Quantities and Rates;
1 Delete 2A if the Quantity Surveyor prepared the Schedule of Quantities and Rates
(28) and whereas the Contractor has accepted a schedule of quantities and rates prepared
by the Quantity Surveyor as the Schedule of Quantities prepared by himself; 2
(2C) and whereas the Contractor has, based on the Tender Documents, made in the Form of
Tender his calculation of the sum that he will require for carrying out the Works by pricing the
Schedule of Quantities and Rates; 3
(3) and whereas the Contractor has given to the Employer the Schedule of Quantities and
Rates setting out the build up of the Contract Sum;
(4) and whereas the Architect has given each party one copy of the Articles of Agreement, the
Appendix, the Conditions, the Contract Drawings, the Specification and the Schedule of
Quantities and Rates each signed by or on behalf of the parties.
Articie 1
The Contractor will carry out and complete the Works in accordance with and subject to the
Contract for the consideration stated in Article 2.
Articie 2
The Employer will pay to the Contractor the sum of Hong Kong Dollars
. . ........ . .. .... . . ......... . . . . . . ....... . ... . . ... . ... ..... . . . . . ... . . . .. - .. .... . . . .... .. .... ... .. .. . . .. .-. ... .... . . .. .. .. ... . .. ..... . .. .. . .. . . .... . . ..
rn
(HK$ ......................................................................................................................................................)
(the Contract Sum) or such other sum that becomes payable in accordance with and subject
to the Contract.
Article 3
The Architect will be
. ... . . .... .. . . . ... ...... . . .. . ... . . ....... ..... .... . . .. ... .. . .. ..... . . . .... - .. .... . ...... . .. . ... . .. . .... ::.. ... . . .... . ...... . ........ .. . .... . .. . ..
- . - . . . .-
Articie 4
The Quantity Surveyor will be
.. .... .... . .. . . . .. . . . . .... .. . . . . . . . . . . . .. . .... - .--.... . ..... .. . . . .... . . . ... . . . ... . . . . . . . ..-- --.. ... . .. = . -. -u - - .- - - --. . . . . ... . . . .. . . . ... . . . ..
... . . ... ---u
.. .. . . .... . . . . . . ... ..... .- .. . . . . . . . ...... . ..... .... . . . . ..... . .. . . .. . .. . . . ... . . . . - -. . - . -- u--- - --~ ---- - - -- - - - - -- -a uu . - n .--. . ... . . .. . . .. ... . . . .. .
. . . . . . - . n --
6
Article 5
(1) in the event of the person appointed to act as either the Architect or the Quantity Surveyor
ceasing to act, the Empioyer shall appoint a replacement as soon as practicable.
(2) it the Contractor objects to the person appointed to succeed either the Architect or the
Quantity Surveyor, the Contractor has the right to refer his objection to an arbitrator
under the Contract provided the reference to arbitration is made within 14 days of the
appointment.
(3) The person appointed as the repiacement to the Architect or the Quantity Surveyor
shall continue to act pending the award of the arbitrator appointed under Article 5(2)
but shali immediately cease to act if so directed by the arbitrator's award. In which
case the Employer shall appoint a further replacement as soon as practicable.
The Contractor shalt have the right of objection under Article 5(2) to a further appointment
of either the Architect or the Quantity Surveyor.
A person appointed as the repiacement to the Architect or the Quantity Surveyor shall
not be entitled to disregard or overrule any agreement, approval, certificate, confirmation,
consent, decision, direction, dissent, instruction, notice, notification, opinion, request
or requirement given or made by the person previously appointed save insofar as the
Contract permits.
Article 6
it a dispute arises under or in connection with the Contract, the parties agree to resolve the
dispute in accordance with the dispute settlement procedures in clause 41.
Attestation
(name and office held by signatory for the Employer) (name and occupation of witness)
(name and office held by signatory for the Contractor) (name and occupation of witness)
*deiete as appiicabie
The Generai Cendtens
Governing law
1.1 The Contract shall be governed by and construed according to the laws for the time
being in force in Hong Kong.
Definitions
1.6 The toilowing words and phrases in the Articles of Agreement, the Conditions and the
Appendix shali have the meanings given below unless the context in which they appear
requires otherwise or the Articles, the Conditions or an item or entry in the Appendix
provides otherwise:
Architect: the person named as the Architect in Article 3, or any successor appointed
under Article 5.
Articles or Articles of Agreement: the Articles of Agreement to which the Conditions are
annexed.
Commencement Date: the date stated in the Appendix for the commencement of the
Works.
Communication: the giving, submitting or issuing of, without limitation, any agreement,
approvai, authorisation, certificate, confirmation, consent, decision, delegation, direction,
dissent, determination, endorsement, instruction, notice, notification, opinion, request,
requirement or statement.
Completion Date: the date stated in the Appendix by which the Works or a Section are
to be completed or such later date to be fixed by the Architect under clause 25.
interpretation and definitions (contd)
Contract: the Articles of Agreement, the Appendix, the Form of Tender submitted by
the Contractor, the Employers ietter of acceptance of the Contractors tender and any
correspondence between the parties expressed to form part of the Contract, the Special
Conditions, it any, the Conditions, the Contract Drawings, the Specification and the
Scheduie of Quantities and Rates.
Contract Drawings: the drawings referred to in the first and fourth recitals of the Articles
and enumerated as such in the Specification.
Contract Sum: the sum stated in Article 2, or such other sum that becomes payable in
accordance with the Contract.
Contractors All Risks insurance of the Works: insurance which provides cover against
physical loss of or damage to the Works, temporary works and materials and goods, as
described in ciause 22.
Date for Possession of the Site: the date or dates for the possession of the whole or
parts of the Site stated in the Appendix under the reference to clause 23.1.
Data otsubstantiai Completion: the date stated in the Substantiai Completion Certificate
for the Works or a Section, issued by the Architect under clauses 17.1 and 17.2.
day: a calendar day and includes Sundays and other days which are general holidays
by virtue of the General Holidays Ordinance (Chapter 149, Laws of Hong Kong).
Defects Liability Period: the period stated in the Appendix under the reference to clause
17.3, commencing on the day after the Date of Substantial Completion of the Works or
a Section or the day after the Relevant Date of Substantial Comptetion of a Relevant
Part.
Defects Rectification Certicate: a certificate issued by the Architect to the effect that
aii defects, shrinkages and other faults have been rectified in accordance with the
Contract, as described in clauses 17.4 and 17.5.
direct loss and/or expense: the monetary consequences that flow naturally without
other intervening cause and independently of special circumstances because of the
direct consequences of a qualifying event and which are not otherwise reimbursed to
the Contractor.
E0
interpretation and definitions (contd)
Engineer: a person engaged as a member of the Employers design team for the design
and supervision of one or more oi the geotechnical, civii, structural or building services
elements of the Works, as referred to in ciause 1.7.
Excepted Risks: (a) Any consequence of war (whether war be declared or not) in which
Hong Kong is actively engaged, the invasion of Hong Kong, acts of terrorists in Hong
Kong, civil war, rebeilion, revolution or miiitary or usurped power in Hong Kong, riot,
commotion or disorder in Hong Kong other than amongst the employees of the
Contractor or any person for whom the Contractor is responsible;
(to) the Architects design of the Works insofar as damage, loss or
injury is the direct consequence of the design;
(c) a cause due to any neglect or default of the Architect, the Employer
or any person tor whom the Architect or the Employer is responsible;
(oi) ionizing radiation or contamination by radioactivity from any nuclear
fuel or from any nuclear waste from the combustion of nuclear fuel, radioactive toxic
expiosive or other hazardous properties of any explosive nuclear assembly or nuclear
component thereof;
and (a) pressure waves caused by aircraft or other aerial devices travelling
at sonic or supersonic speeds.
Fina! Certicate: the certificate issued by the Architect stating the Final Contract Sum
and the total of the amounts of Interim Certificates to be set off against that sum, as
described in clause 32.8.
Finai Contract Sum: the sum resulting from the adjustment of the Contract Sum in
accordance with the Contract.
Form of Tender: the form of tender referred to in the first recital of the Articles as being
part of the Tender Documents.
interim Certificate: a certificate issued by the Architect stating the amount of an interim
payment due to the Contractor, as described in clause 32.1.
Limit 07 Retention: the amount stated in the Appendix under the reference to ciause
32.4 as the limit to the amount of Retention to be held by the Employer on the payment
for the Contractors work in progress.
E1
nterpretation and definitions (contd)
Period of Interim Certificates: the period stated in the Appendix under the reference
to
clause 32.1 as the interval between the issuing of Interim Certificates.
Prime Cost Sum: a sum either provided in the Contract or arising as described
in clause
29.1 for work to be carried out by a Nominated Sub-Contractor or for materials
or
goods to be obtained from a Nominated Supplier.
Provisional Sum: a sum provided in the Contract for work or for costs, which
could not
be entirely foreseen, defined or detailed when the Contract was prepared,
to be paid to
the Contractor if instructed by the Architect under clause 13.2 to carry out
such work or
incur such costs.
Relevant Date: the date upon which the Employer took possession of a
Relevant Part
under ciause 18.
Relevant Part: the part of the Works or part of a Section taken possession
of by the
Employer under ciause 18 before Substantial Completion of the Works or
that Section.
Retention: the sum calculated in accordance with clause 32.4 and retained
by the
Employer from the gross valuation of the Contractors work in progress included
in an
Interim Certificate.
12
interpretation and definitions (contd)
Retention Percentage: the percentage entered in the Appendix under the reference to
clause 32.4, used to caiculate the Retention in accordance with the rules set out in that
clause.
Schedule of Quantities and Hates: the schedule of quantities and rates referred to in the
recitals of the Articies and in ciause 1.7, prepared by the Contractor, setting out the
build up of the Contract Sum and submitted with his tender, or a certified true copy of
this schedule.
Section: a part of the Works for which a separate Completion Date is stated in the
Appendix where the Contract provides for sectional completion of the Works.
Site: the iand and other places provided by the Employer for the purpose of carrying
out the Works.
Specialist Works: work directly connected with or ancillary to but not forming part of the
Works, to be carried out by a Specialist Contractor.
Specification: the specification referred to in the first and fourth recitals of the Articles
which describes, without iirnitation, the types, standards and quality of the materials
and goods to be used, the standard and quality of workmanship required, the manner
in which work processes are to be carried out, the performance requirements and other
matters and things reiating to the construction of the Works.
Specified Perils: fire, lightning, explosion, storm, tropical cyclone, flood, bursting or
overflowing of water tanks, apparatus or pipes, earthquake, aircraft and other aerial
devices or articles dropped from them.
subContractor: a person who enters into a subcontract with the Contractor to carry
out work forming part of the Works and includes a Domestic Sub-Contractor and a
Nominated SubContractor.
13
interpretation and definitions (contd)
Substantial Completion: the state of compieticn where the Works or a Section have
been substantially completed to the Architects satisfaction and have passed the required
inspections and tests, as referred to in clauses 17.1 and 17.2.
Substantial Completion Certicate: a certificate issued by the Architect stating the date
when in his opinion the Works or a Section have reached Substantiai Compietion.
substantially completed: the state of compietion where the Works or a Section may not
be absoiutely cornpieted or entirely free from defects but have reached the stage where
they can be taken over and used by the Employer for their intended purpose and where
the unfinished items of work and the remaining defects then patent are only of a minor
nature and extent and their completion or rectification will not unreasonably interfere
with or interrupt the taking over of the Works or Section.
supplier: a person who enters into a supply contract with the Contractor to supply
materials or goods and includes a Nominated Supplier.
suspend: to cease operations for a period of time on an activity in which work has
commenced.
Tender Documents: the documents and drawings referred to in the first recital of the
Articles, or a certified true copy of those documents and drawings.
Valuation: the valuation made by the Quantity Surveyor, in accordance with the valuation
ruies under clause 13.4, of work carried out in response to an Architects instruction
requiring a Variation, remeasurement of Provisional Quantities and Provisional items or
to expend Provisionai Sums.
l/ariation: a change instructed by the Architect to the design, quality or quantity of the
Works inciuding: A
(i) an alteration to the type, standard or quality of any of the materials or goods
comprising the Works;
(iii) the removal from the Site of materials or goods and the demolition and removal
of work except where provided for in the Contract or where the materials,
goods or work are not in accordance with clause 8.1;
14
interpretation and definitions (contd)
Works: the work briefly described in the Articles of Agreement and shown upon,
described by or referred to in the Contract including any change made to the work in
accordance with the Contract.
(2) The Contractor shaii be deemed to have estimated his own quantities of the Works
and shall submit, with his tender, a Schedule of Quantities and Rates setting out a
buildup of the Contract Sum.
(3) The accuracy of the quantities in the Schedule of Quantities and Rates submitted
by the Contractor shall be at the sole risk of the Contractor and the cost of any under or
over estimation of quantities shall be deemed to have been allowed for in the rates of
the item concerned.
(4) The rates in the Schedule of Quantities and Rates shall form part of the Contract
and shall be used for valuing Variations and estimating interim payments.
(5) Where any item which is required by the Contract has not been specifically priced
in the Scheduie of Quantities and Rates, the cost shall be deemed to have been included
in the rates for other items.
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M-2
The role of the Engineer
1.8 (1) The Architect may, from time to time, delegate any of his duties and powers under
the Contract to an Engineer.
(2) The deiegation shalt be in writing and copied to the Contractor. It shall specify the
duties and powers that are deiegated and shall remain in force until changed or
terminated in writing by the Architect.
(3) Where in the context of the wording of a clause in the Conditions or where
recognition of the Engineers statutory responsibility requires it, the word Architect in
the Conditions shall be deemed to be read as Engineer.
(2) The phrase the whole of the Works means the Works including all Sections.
Communications
i.'i0 Uniess otherwise stated, alt notices, certificates and other communications under the
Contract between the Empioyer, the Architect, the Quantity Surveyor and the Contractor
shail be in writing.
15
interpretation and definitions (contd)
(2) All requirements shall be reasonable requirements and, without limitation, the term
to the Architect's satisfaction shall be construed as meaning to the Architect's
reasonable satisfaction and the term practicable shall mean reasonably practicable.
Contractors obligations
Contractors obligations
2.91 (1) The Contractor shall in compliance with the Contract:
(a) organize, manage, plan and supervise the carrying out of the Works;
(b) coordlnate the carrying out of the Works including the interface between his own
work and the work carried out by each Domestic SubContractor, Nominated Sub-
Contractor, Specialist Contractor, statutory undertaker and utility company;
(d) design sufficient, safe and adequate temporary works to enable the Contractor to
comply with his other obligations under the Contract, except where the design of
any temporary works is a statutory obligation of any person other than the Contractor
or any person for whom the Contractor is responsible;
(e) carry out any work involved in the development of the Architects design that may
be specified in the Contract;
(t) prepare all shop drawings and coordination drawings required by the Contract;
(g) carry out the maintenance of mechanical and electrical equipment where required
to do so by the Contract for the period of time so specified;
(h) take responsibility for the care of the Works, except for loss or damage arising
from the Excepted Risks, from the Commencement Date until 14 days after
Substantial Completion of the Works or 14 days after the determination of the
employment of the Contractor, whether valid or not, whichever is earlier, except
that the Contractors responsibility for the care of the Works shall terminate in
relation to a Section or Relevant Part 14 days after the Employer takes possession
of that Section or Relevant Part; and
16
Contractors obligations (contd)
(i) carry out the construction of and complete the Works using materials, goods and
workmanship of the types, standards and quality specified in the Contract.
(2) Where the Contract requires the Contractor to prepare details, to carry out the
design or the development of the Architect's design, unless the requirement of fitness
for purpose is specificaily stated, the design or the development of the Architects design
shall be carried out with reasonable skill and care and the Contractor shall be responsible
to the Employer for such work.
Contractors responsibility
2.2 The Contractor shall remain wholly responsible for carrying out and completing the
Works in accordance with the Contract whether or not the Architect or the Architects
representative, if appointed:
(a) visits the Works or a place where materials or goods are being manufactured or
stored, work is being prepared, or design is being carried out;
(oi) includes the value of any materials, goods or work in an Interim Certificate.
(c) the descriptive schedules and other similar documents referred to in clause 5.3(c);
(d) the Nominated SubContract documents and the Nominated Suppiy Contract
documents referred to in clauses 5.4 and 5.5; and
(e) the further drawings, details, descriptive schedules and similar documents referred
to in clauses 5.6 provided from time to time during the carrying out of the Works.
(2) if the Architect agrees with the Contractor, he shall issue an instruction to resolve
the ambiguity, discrepancy or divergence as soon as practicable after receipt of the
_)t.-9 &U'1\%-4 notice from the Contractor and the instruction shall, if considered appropriate by the
Architect, require a Variation.
17
3 Master programme
(a) 6 copies of a master programme prepared for his own purposes for organising,
managing, pianning, supervising and co~ordinating the carrying out of the Works
and completing them by the Compietion Date;
(b) a method statement describing the methods of construction and the resources
that he intends to use to carry out the Works;
(c) a list of the names and details of the site management and supervisory team
personnel, referred to in ciause 10, with job descriptions and detaiis of their durations
on the Site; and
(d) a list of the piant, equipment and temporary works which he intends to suppiy, use
or construct, as the case may be.
(a) show the activities and the sequence in which the Contractor proposes to carry
out the Works;
(b) show the periods of time estimated for each activity; and
(c) make aiiowance for the carrying out of Specialist Works, insofar as a general
description of these works is given in the Contract, and work by statutory
undertakers and utility companies as referred to in clause 6.4(1).
(3) The Contractor shall submit 6 copies of any other programme that may be required
by the Contract at the time or times so specified.
(4) Where any other part of the Contract sets out requirements in respect of the
submissions to be made by the Contractor under clause 3.1, the submissions shall be
made in accordance with those requirements.
Programmes to be updated
3.2 (1) The Contractor shalt reguiariy update the master programme and any other
programme used in carrying out the Works to reflect the current status of the progress
of the Works, and shail submit 6 copies of the updated programme to the Architect at
the intervals stated in the Contract (or, if this is not stated, at 3 month intervals) and in
any event within 28 days of:
(a) an Architects decision to fix a new Completion Date under clause 25.3;
(b) the Empioyer taking possession of a Section or a Relevant Part of the Works;
E8
Master programme (contd)
(2) The programme shali be revised to indicate the modifications that the Contractor
beiieves are necessary to achieve completion of the Works by the Completion Date if
the Contractor decides to take action in response to the Architects notice under clause
25.5.
(3) Programme updates shali be based upon the logic, activities and durations shown
in the previous programme. Any change to the programme structure apart from activity
status that may be necessary shall be clearly indicated and explained to the Architect.
Architecfs instructions
(2) Where an Architects oral instruction requiring a Variation has been confirmed in
writing by the Contractor under ciause 4.2(1) and not dissented to by the Architect, the
Architect shall issue the written instruction for a Variation for record purposes as soon
as practicable after the Contractors confirmation.
I9
Architects instructions (contd)
(2) lithe Contractor disagrees that the Architect is empowered by the Conditions to
issue an instruction he may within 7 days of receipt of that instruction require the
disagreement to be resolved under clause 41.
(3) if the Contractor does not begin to comply with an instruction within 7 days after
receipt of a written notice from the Architect requiring compliance with that instruction
in accordance with clause 4.3(i) and the Architect issues a certificate to that effect by
speciai delivery, the Employer may, without prejudice to his other rights and remedies,
engage other persons to carry out that instruction. All additional costs incurred by the
Employer in connection with the employment of the other persons to carry out that
instruction may be recovered from the Contractor under ciause 40 or as a debt.
(4) The Contractor shall provide reasonable access to the persons engaged by the
Employer under ciause 43(3) and shall permit them to carry out their work without
hindrance.
(a) carry out all necessary preventative work without waiting for an Architects
instruction; and
(b) immediately inform the Architect of the emergency and of the action taken or
preventative work being carried out.
(2) The Architect shali issue an instruction confirming a Variation for preventative work
carried out initially without an Architect's instruction, provided that the work was not
required to be carried out in fulfilment of a Contractors obligation or because of a
breach of contract or other default by the Contractor or any person for whom the
Contractor is responsible.
(13) the Form of Tender submitted by the Contractor together with the Emp|oyers letter
of acceptance of the Contractors tender and any correspondence between the
parties expressed to form part of the Contract;
20
Documents forming the Contract and other documents (contd)
(2) The order of precedence of the documents forming the Contract shall be as listed
in paragraphs (a) to (g) above.
(3) As provided for in ciause 1.7, the accuracy of the quantities in the Schedule of
Quantities and Rates shalt be at the Contractors risk. The quantities shall not form part
of the Contract but the rates shall form part of the Contract.
(a) 1 copy, Certified on behalf of the Employer as a true copy, of each of the documents
forming the Contract;
(b) 3 further copies of the Contract Drawings and the Specification; and
21
ocumentsforming the Contract and other documents (contd)
Documents on Site
The Contractor shall keep on the Site so as to be available to
the Architect and the
Quantity Surveyor at all reasonable times 1 copy of:
(g) the suppiementary documentation referred to in clause 5.6 provided by the Architect
from time to time during the carrying out of the Works; and
(h) all other documents that the Contractor is required to keep on Site in fulfilment of
his statutory obligations.
Return of drawings .
5.10 The Contractor shall return to the Architect all drawings, specifications, details,
descriptive schedules and other similar documents provided under clause 5, if required
by the Architect to do so, either upon the issue of the Final Certificate or the final
conciusion of any proceedings to which the Contractor is a party, whichever is later
and the Contractor may take copies for his own records.
(2) The Contractor shall assign to the Employer (so far as he is lawfully able to do so)
the benefits of all suppliers and subcontractors warranties, guarantees or other ancillary
agreements for materials, goods or work insofar as they are required by the Contract,
Nominated SubContracts or Nominated Supply Contracts, other than the direct
warranties to the Employer required under the Nominated SubContracts and Nominated
Supply Contracts, within 60 days after the issue of the Substantial Completion Certificate
for the whole of the Works.
(2) Where the drawings referred to under clauses 5.3, 5.4, 5.5 and 5.6 have been
issued electronically, the Contractor shall, if so required by the Architect, provide the
as-built drawings electronicaliy.
(2) Neither the Ernpioyer, the Architect nor the Quantity Surveyor shall divulge any of
the rates or prices in the Schedule of Quantities and Rates or use them except for the
purposes of the Contract and any proceedings reiating to the Contract.
23
Documents forming the Contract and other documents (contd)
Statutory obligations
Statutory Requirements
6.1 The Contractor shail comply with and give the notices required by any Ordinance,
regulation, ruie, order or by-Eaw applicabte to the Works (the Statutory Requirements)
which are to be complied with by the Contractor.
(2) it the Architect agrees with the Contractor, he shall issue an instruction to resolve
the infringement as soon as practicable after receipt of the notice and the instruction
shali, if appropriate, require a Variation.
Fees or charges
6.3 (1) The Contractor shall pay all fees or charges legatiy demandable under the Statutory
Requirements.
(2) The net amount of those fees or charges paid by the Contractor shall be added to
the Contract Sum unless they:
(a) are fees or charges that the Contractor is liable to pay under the Statutory
Requirements, and the liability was known prior to the date for submission of tenders
and has not been increased;
24
Statutory obligations (contd)
(2) The Contractor snail allow those persons reasonable access to the Site, permit
them to carry out their work and provide them with the facilities referred to in clause 31.
ce,
ts) (3) Statutory unolertakers or utility companies engaged under contracts with the
Employer to carry out work directly connected with or ancillary to but not forming part
of the Works shall be classified as Speciaiist Contractors as referred to in clause 30.1.
hat (4) Statutory undertakers or utility companies engaged under contracts with the
:ion Contractor or a Nominated SubContractor to carry out work forming part of the Works
shall be classified as sub~contractors or subsubcontractors as the case may be.
(2) Where the Contractor is responsible for the selection of the materials and goods in
accordance with a performance specification or otherwise, the materials and goods
must be fit for the purpose stated in the Contract.
(3) If any of the specified materials or goods are not procurable, then the Contractor
shall submit alternative proposais for materials or goods of similar type and standard
and of comparable quaiity and price to the Architect for his approval; and
25
8 Materials, goods, workmanship and work (contd)
(a) if the proposed alternative materiais or goods are of similar type and standard and
of comparabie quality and price to those specified, and the Architect approves
them, the substitution of the alternative materials or goods for those specified
shalt be made with no adjustment to the Contract Sum; or
(b) if the proposed aiternative materials or goods are not of similar type and standard
or comparable quality or price to those specified, and the Architect approves them,
he shail instruct a Variation to adiust the type, standard, quality or price.
(4) The Contractor shall provide the Architect, upon his request, with vouchers, test
certificates or other evidence to satisfy the Architect that the materials and goods compiy
with the Contract.
(5) The Contractor's workmanship must be of the standard and quality described in
the Contract to the Architect's satisfaction.
(6) All work must be carried out in a proper and workmanlike manner in accordance 8.4
with the Contract or, in the absence of any specific performance requirements, to the
Architects satisfaction.
(2) In addition to the tests specified in the Contract, the Architect may instruct the
Contractor to open up for inspection any work covered up and to carry out, or arrange
for a third party to carry out, tests of materials and goods (whether or not already
incorporated in the Works) and work which has been carried out.
(8) The cost of the testing, the opening up for inspection and any consequential making
good shall be added to the Contract Sum unless:
(b) the inspection or test shows that the materials, goods, workmanship or work are
not in accordance with clause 8;
(c) the inspection or test was considered necessary by the Architect because, as a
result of the faiiure of a previous inspection or test, further investigation of similar
materiais, goods or work was required to establish to his satisfaction their
compliance with clause 8; or
(Ci) the work was carried out without the inspection notice required by the Contract.
26
8 Materials, goods, workmanship and work (contd)
:l and (a) the removal from the Site and the replacement of materials
and goods that are not
roves in accordance with clause 8;
sified
(b) the repair or demolition, removal and reconstruction of work which,
in respect of
materials, goods or workmanship, is not in accordance with clause
8;
tdard
:hem, (c) the acceptance, without replacement or reconstruction,
of some or all of the
materials, goods or work that are not in accordance with clause
8, subiect to a
reasonable reduction in the Contract Sum having regard to the reduction
in the
, test value of the materials, goods or work; and
IITI
Fiectifying defects
ance The Architect may instruct the Contractor to rectify defects which
appear before the
Jthe commencement of the Defects Liability Period.
27
intellectual property rights (contd)
12
(2) The Contractor shall indemnify the Employer from and against ail claims,
proceedings, damages, costs and expense arising from the Contractor or any sub-
contractor or suppiier infringing or being held to have infringed any of the intellectual
12.
property rights referred to in clause 9.3(1).
(2) The team shail be of sufficient strength with personnel of appropriate qualifications,
seniority and experience, having regard to the size, complexity and nature of the Works,
to properly organise, manage, plan, supervise and coordinate the carrying out of the
Works.
Construction manager
10.2 (1) The team shalt be headed by an experienced and competent construction manager
approved by the Architect. 12
(2) An instruction issued by the Architect to the construction manager shall be deemed
to have been issued to the Contractor.
(3) The Architect may instruct the Contractor to replace the construction manager or
a member of the team for incompetence or misconduct.
(4) The Contractor shail not remove or repiace the construction manager or any member
of the team unless requested by or agreed to by the Architect.
28
Architects representative
Architects representative
of works
The Architect and/or the Employer may appoint an architect, engineer, clerk
and acting
or other person as the Architects representative to be resident on the Site
under the direction of the Architect.
(c) check that the types, standards and quality of the materials and goods, the standard
in
and quality of the Contractors workmanship and the quality of his work are
accordance with the requirements of the Contract;
red
to
3 is (d) check, amend as necessary, and where appropriate sign the records submitted
him by the Contractor for approval; and
-the Architect
ms, (e) carry out the duties and exercise the powers delegated to him by
rks, under clause 12.2,
the
for
and the Contractor shalt give the Architect's representative every reasonable facility
the performance of these duties.
Sums
Variations, Provisional Quantities Provisional Items and Provisional
29
13 Variations, Provisional Quantities Provisional Items and Provisionai Sums (contd) 13
(a) the Contractor has the right of reasonable objection to a Variation which imposes
or changes an obiigation or restriction on the Contractor regarding access to the
Site, use of any part of the Site or limitation of working space or working hours and
the Architect shalt, upon receipt of the Contractors objection, either confirm or
withdraw the instruction, and it the instruction is confirmed, the Contractor may
refer the matter to arbitration under clause 41;
(b) the Contractors written consent is given to an instruction either nominating a sub-
contractor to carry out work included in the Contract which is to be carried out by
the Contractor or omitting work in order for it to be carried out by others; and
(2) The instruction requiring a Variation shaii describe the change required to the design,
quaiity or quantity of the Works or the imposition of or change to any obligation or
restriction on the Contractor and where appropriate the Architect shall issue revised
drawings and/or schedules.
(3) The Contractor has no right to carry out work involving a Variation without a written
instruction from the Architect or confirmation of an oral instruction from the Contractor
except in the event of an emergency as provided for in Clause 4.4.
(a) the carrying out of work or the provision of goods covered by Provisional Quantities
or Provisionai Items in the Contract, Nominated SubContracts or Nominated Supply _
Contracts; and
(b) the expenditure of Provisionai Sums inciuded in the Contract, Nominated Sub-
Contracts or Nominated Supply Contracts.
(b) clause t3.2(a) for the remeasurement of Provisional Quantities and Provisional items;
and
and the Vaiuation shali be made in accordance with the rules set out in ciause 13.4.
Valuation rules
13.4- (1) Where the Valuation relates to the carrying out of:
30
it'd) C13 Variations, Provisional Quantities Provisional Items and Provisional Sums (contd)
ses (a) additional or substituted work which can be properly valued by measurement;
the
and (is) work which is the subject of Provisional Quantities or Provisional items; or
1 or
nay (c) work invoived in the expenditure of Provisional Sums.
the work shall be measured and shall be valued in accordance with the following ruies:
;ub
t by (i) where the work is the same as or similar in character to and is carried out
under the same or similar conditions to work priced in the Schedule of
Quantities and Rates, and the Variation does not substantially change the
the quantity of that work, the rates in the Schedule of Quantities and Rates for
that work shall determine the Valuation;
iign, (ii) where the work is the same as or similar in character to work priced in the
n or Schedule of Quantities and Rates but is not carried out under the same or
sed similar conditions, or the Variation substantially changes the quantity of that
work, the rates in the Schedule of Quantities and Rates for that work shall
determine the Valuation but with a fair adjustment for the difference in conditions
tten or quantity;
ctor
(iii) where the work is not the same as or similar in character to any work priced in
the Schedule of Quantities and Rates the work shall be valued at fair rates; and
(iv) the word conditions in ciause 13.4(1) shall mean physical conditions and not
financial conditions.
ities
ioply (2) Where the Valuation relates to work which cannot be properly measured and valued
under clause l3.4(1) the work may, with the prior consent of the Architect, be carried
out as daywork and provided that the Contractor:
(a) gives at least 7 days notice to the Architect before carrying out the work, or where
the work is required urgently, as much prior notice as practicable; and
(b) submits vouchers specifying the time spent daily carrying out the work, the
workmens names, the materials and goods and the plant and equipment employed
to the Architect for verification within 14 days of the work being carried out,
the work shali be valued at prime cost comprising iabour, materials, goods, plant and
equipment pius overheads and profit; and:
(Ci) where there are no daywork rates in the Contract, priced at:
(i) the labour rates contained in the record of Average Daily Wages of Workers
Engaged in Government Building and Construction Projects published by the
Census and Statistics Department of the Government of the Hong Kong Special
Administrative Region current at the date when the work iscarried out;
31
13 Variations, Provisionat Quantities Provisional items and Provisional Sums (contd) 13
(ii) the net cost of materiais and goods plus the cost of packing, carriage and
delivery; E3.
(iii) the cost of hiring piant and equipment specifically provided for the work
together with the cost of transportation, fuel, maintenance and insurance; and
13
(iv) the percentages for overheads and profit on the prime cost of the labour,
materials, goods, plant and equipment that are included in the Contract or,
where no such percentages are inciuded in the Contract, at 15 percent.
13
(3) Where the Vaiuation relates to the omission of work included or deemed to have
been included in the Scheduie of Quantities and Rates:
(a) the rates for the work in the Schedule of Quantities and Rates shail determine the
Valuation of the work omitted; and
(b) if in the Quantity Surveyors opinion the Contractor has reasonably incurred expense 13
which has become whoily or partly unnecessary as a result of the omission of the
work, a fair adiustment shall be made to the Valuation in respect of that expense.
(4) Where the Vafuation does not relate to additional or substituted work or the omission
of work but relates only to other matters not involving measured work such as the
imposition of or change to an obligation or restriction and the rules in clauses 13.4(1),
13.-4(2) or 13.4(3) cannot reasonably be applied, a fair valuation shall be made.
(5) An appropriate allowance shall be made in a Valuation under clause 13.4 for any
percentage or lump sum adjustment made to the Schedule of Quantities and Rates.
(6) if cornptiance with a Variation instructed under clause 13.1 or a deemed Variation
under clause 14.3 substantially changes the conditions under which other work is carried
out, and resuits in the rates in the Schedule of Quantities and Rates for this work
becoming unreasonabie or inapplicable, then new rates shail be determined based 14
upon the rates in the Schedule of Quantities and Rates adjusted by a fair allowance for
the difference in the conditions. I5
(7) in addition to the Valuation by daywork under clause 134(2) of work which cannot
be properly measured and valued under clause 13.4(1), the Architect may instruct the
Contractor, with the Contractors agreement, to carry out any other work, including
work which can be properly measured and valued under clause 13.4(1), to be valued on
a daywork basis in accordance with clause 13.-4(2).
(8) if the Architect instructs a Variation for additional work after Substantial Completion,
clause 134(1) shalt not apply and a fair valuation shall be made.
(9) N0 ailowance is to be made under clause 13.4 for direct loss and/or expense due
to delay to the progress of the Works, disruption, or any other cause for which the
Contractor can be reimbursed by payment under any other provision of the Conditions.
32
1|) Variations, Provisionaf Quantities Provisional Items and Provisional Sums (contd)
(a) for a variation to the sub-contract works or to the materials and goods to be supplied
under a supply contract;
(b) under clause 13.2(a) tor the remeasurement of Provisional Quantities and Provisional
Items in the subcontract or supply contract; and
(c) under ciause 13.203) to expend Provisional Sums included in the sub-contract or
supply contract;
[Not used]
*La. XL.2.D
Contract Sum
(2) The parties are deemed to have accepted any error whether of arithmetic or not in
the caicuiation of the Contract Sum stated in Article 2.
K!)
.U
33
16 Materials and goods on or off-site 17
(2) Materials and goods delivered to or adjacent to the Site shail not be removed
without the consent of the Architect. If they have become the property of the Employer
the Contractor shall remain responsible for loss or damage to them except to the extent
that the loss or damage is due to an act or neglect of the Employer or any person for
whom the Employer is responsible.
(3) The Contractor shall indemnity the Employer against loss or damage to materials
and goods stored otfsite that have become the property of the Employer, shall be
responsible for the cost of their storage, handling and insurance and shall not remove
them from where they are being stored except for use upon the Works.
Separate Defects Liability Period for each Section and Relevant Part
17.2 (1) If sectional completion of the Works is provided for in the Contract or the Employer
takes possession of a Relevant Part each Section or Relevant Part shall have its own
separate Detects Liability Period.
(2) The Architect shall issue a Substantial Completion Certificate upon Substantial
Completion of each Section or Relevant Part except for the last one. Upon Substantial
Completion of the last Section or Relevant Part the Architect shall issue the Substantial
Completion Certificate for the Works and Substantial Completion of the whole of the
Works shall be deemed to have taken place on the date stated in that certificate.
(3) The requirements for the issue of a Substantial Completion Certificate under clause
172(2) shall be the same as those under clause 17.1.
Rectifying defects
17.3 (1) The Contractor shall rectify all defects, shrinkages or other faults which are identified
during the Detects Liability Period of the Works, a Section or a Relevant Part stated in
the Appendix, and are caused either by materials, goods or workmanship which are not
in accordance with the Contract, by natural causes or as a result of a Specified Peril
occurring during the construction period prior to Substantial Completion.
34
Substantial Completion and defects liability (contd)
of defects which he
(2) The Architect shalt fist the defects to be rectified in schedules
from time to time during the
shail issue to the Contractor as Architects instructions
be issued not later than 14
Defects Liability Period. The iihai schedule of defects shall
days after the expiry of the Defects Liability Period.
(a) the Defects Liability Period for the Works has expired;
items of work on
(b) the Contractor has satisfactorily completed all the uncompleted
and
the list issued with the Substantial Completion Certificate;
35
18 Partial possession by Employer IE
Partial possession
18.1 (1) The Empioyer may, with the Contractors consent, take possession of a part of the
Works or where sectional completion is provided for in the Contract a part of a Section
before Substantial Comptetioh, and that part of the Works or part of a Section shall be
referred to as a Relevant Part.
(2) if the Empioyer takes possession of a Relevant Part, the Architect shall issue a
certificate to that effect:
it
(a) identifying the Relevant Part being taken into possession;
(b) giving the Relevant Date when the Employer took possession of the Relevant Part; 1!
and
(c) stating his assessment of the estimated amount contained in the Contract Sum in 1!
respect of the Relevant Part.
Substantial Completion
18.2 Substantial Completion of the Relevant Part shall be deemed to have occurred on the
Relevant Date and the foiiowihg shall take effect:
(a) the commencement of the Defects Liability Period for that Relevant Part and the
rectification of defects under clause 17;
(lo) the exemption from iiability for damage by a Specified Peril under clause 17.6; and
(c) the reiease of onehalf of the Retention relating to that Relevant Part under clause
32.5.
(a) where sectional compietion is not contemplated under the Contract, the rate of
iiquidated and ascertained damages in respect of the Works shall be reduced,
during the period when the Works remains incomplete after the Relevant Date, by
the same proportion as the estimated amount contained in the Contract Sum for
the Relevant Part bears to the Contract Sum; or
36
13 Partial possession by Employer (contd)
(b) where sectionai compietion is contemplated under the Contract, the rate of
he liquidated and ascertained damages in respect of the relevant Section shalt be
on reduced, during the period when the Section remains incomplete after the Relevant
be Date by the same proportion as the estimated amount contained in the Contract
Sum for the Reievant Part bears to the estimated amount contained in the Contract
Sum for the Section.
Assignment
(1) Except where provided otherwise in clause 19.1, neither party shall, without the
written consent of the other, assign or transfer any of his rights or obiigations under the
Contract.
the (2) The Contractor must tulfil his organization, management, planning, supervision
and co-ordination obligations through the site management and supervisory team
referred to in ciause 10 and he shall neither assign nor make arrangements for the
the vicarious performance of those functions.
(8) The Employer may assign or transfer the whole or any part of the benefit of the
and Contract after Substantiai Completion of the Works, a Section or a Relevant Part without
the Contractors consent. Any assignment shall be notified promptly to the Contractor.
J88
. (4) Subject to giving prior notice to the Employer, the Contractor may assign the whole
or any part of the benefit of the Contract for the purpose of obtaining financing for the
carrying out of the Works provided that the assignment does not adversely affect the
DOD Contractors fuifilment of his obligations under the Contract.
Sub-letting
The Contractor shall be permitted, unless prohibited by the Contract, to sublet parts of
ned the Works provided that:
ken
(a) he does not subiet the whole of the Works or incrementally sublet parts of the
Works to the same person to indirectly attain subletting of the whole, or substantially
e of the whole, of the Works and retains his management role as described in clause
zed, 191(2) at alt times;
2, by
1 for (b) the terms of the agreement to sublet are, so far as is reasonable, consistent with
the terms of the Contract;
(c) he submits a plan of his subcontracting arrangement giving the names of his key
subcontractors with their scope of works and such other particulars as may be
required by the Architect;
3?
19 Assignment and sub-letting (contd)
(d) he does not sub-iet any part of the Works to a subcontractor against whom the
Architect has made an objection giving his reasons;
(e) be removes from the Works any sub-contractor he is instructed by the Architect to
remove; and
(f) the subletting of a part of the Works to a Domestic SubContractor does not
relieve the Contractor from any liability or obligation under the Contract and he
remains responsibie for carrying out and completing the Works in all respects in
accordance withthe Contract and for the acts, defaults, omissions and neglect of
a Domestic SubContractor as fully as if they were his own acts, defaults, omissions
or neglect.
(a) bodily injury to, disease contracted by or the death of any person arising out of, or
in the course of, or by reason of the carrying out of the Works and whether arising
on or off the Site, except to the extent that the injury, disease or death of that
person is due to any act or neglect of the Employer or any person for whom the
Employer is responsibie; and
(b) injury or damage to real or personal property arising out of, or in the course of, or
by reason of the carrying out of the Works and whether arising on or off the Site, to
the extent that the injury or damage is due to a breach of contract or other default
of the Contractor or any person for whom the Contractor is responsible.
(2) The insurance cover shalt be against the liabilities referred to in clause 21 .i(f)
sustained during the period from the Commencement Date until the Defects Rectification
Certificate for the whole of the Works has been issued and the Contractor has finally
ieft the Site.
(3) As soon as the Contractor becomes aware of any workman or other person
employed on the Works or in connection with the Contract suffering any bodily injury,
contracting a disease or dying, he shall notify the Commissioner for Labour, with a
copy of the notice to the Architect and the insurers.
38
Insurance against injury to persons or property (contd)
39
21 lnsurance against injury to persons or property (contd) 22
(2) The cover shail be in terms approved by the Architect but in any case cannot be
beyond the best terms currentiy available.
Policies to be produced
21.4 The party responsible for effecting the insurances under clause 21.2 shall provide
evidence of cover to the other party prior to the Commencement Date and shaii produce
the policies of insurance and the premium receipts for inspection and approval by the
other party as soon as practicable afterwards.
(a) costs and expenses in respect of shoring and propping up, testing, dismantling or
demolishing part of the Works, existing constructions on the Site or temporary
works, removing and disposing of debris and damaged materials or goods and
protecting the Works, existing constructions on the Site, temporary works and
materials or goods;
40
Insurance of the Works (contd)
(e) the cost of repairing or replacing property which is defective solely due to natural
wear and tear resulting from ordinary use or deterioration, rusting or corrosion;
avide
Jduce ll) loss or destruction of or damage to cash, banknotes, treasury notes, cheques,
iy the stamps, deeds, bonds, bills of exchange, promissory notes or securities;
(g) toss or damage solely due to the total suspension of carrying out the Works where
the insured failed to take reasonable precautions to protect the property insured
ed by and to avoid or reduce the amount of loss or damage;
3 shall
(h) loss of any property by disappearance or by shortage where the loss is revealed
only by the making of an inventory or periodic stocktaking and is not traceable to
an identifiable event;
ractor
ify the (i) loss or damage to materials, goods or work directiy resulting from its own defect in
materials, goods or workmanship or fault, defect, error or omission in design, plan
or specification but not excluding resultant damage to any other materials, goods
or work which are lost or damaged as a consequence of those defective materials,
goods or work;
ecified (i) Eoss or damage to property during the period between 14 days after Substantial
trance Completion and the date of issue of the Defects Rectification Certificate other than
loss or damage arising from a cause occurring prior to the commencement of that
period, or caused in the course of remedying defects or the testing and
commissioning of building services or other installations;
unless
urance loss or damage to plant, equipment and temporary buildings and their contents
ons on owned or hired by the Contractor or any person for whom the Contractor is
Jred or responsible;
aff-Site
waters ionizing radiation or contamination by radioactivity from any nuclear fuel or from
any nuclear waste from the combustion of nuclear fuel, radioactive toxic explosive
or other hazardous properties of any explosive nuclear assembly or nuclear
itling or component thereof;
iporary
-ds and (m)pressure waves caused by aircraft or other aerial devices traveling at sonic or
ks and supersonic speeds; and
41
22 Insurance of the Works (contd)
(2) if the Contract provides for sectional completion of the Works or the Employer has
taken possession of a Relevant Part, the obiigation of the party responsible for effecting
the Contractors Ail Risks insurance of the Works shall terminate in relation to any Section
or Relevant Part 14 days after Substantial Completion of that Section or Relevant Part.
(a) a cross iiabiiity ciause to the effect that the insurances shall cover the Employer,
the Contractor, his subcontractors and their subcontractors of all tiers and
suppiiers as separate insured, and
(is) a waiver of any right of subrogation which the insurers may have against any of the
insured.
(a) notify the Architect of the extent, nature and location of the loss or damage
irnrneciiateiy upon discovering it;
(b) follow all of the requirements in the insurance policy, prepare and submit the
insurance claim and negotiate with the insurers to achieve a fair settlement; and
(c) restore iost or damaged work, remove and dispose of any debris, repair or replace
materials or goods which have been stolen, lost, destroyed or damaged, and
proceed with carrying out the Works with due diligence and in accordance with the
Contract immediately after any inspection required by the insurers has been carried
out.
K5
Pu!
42
Insurance of the Works (contd)
(2) it the Contractor defaults in effecting or in maintaining the Contractors Ail Risks
insurance of the Works, the Employer may effect and maintain it himself and recover
3y the cost of the insurance premium from the Contractor in accordance with clause 40 or
as a debt.
(2) The Contractor shall produce the annual policy of insurance, premium receipt and
the endorsement for inspection by the Architect prior to the commencement of the
Works and the annual premium receipt within 14 days after each renewal date.
43
22B Insurance of the Works by the Employer (contd)
(2) If the Employer defaults in effecting or in maintaining the Contractors All Risks
Insurance of the Works, the Contractor may effect and maintain it himself and the cost
of the insurance premium shall be added to the Contract Sum.
22C Insurance of existing building and insurance of the Works by the Employer
(2) if the Employer defaults in effecting or in maintaining the insurances under clauses
2201 and/or 220.2, the Contractor may effect and maintain them himself and the cost
of the insurance premiums shall be added to the Contract Sum.
(3) The Contractor shalt be given the right of entry and inspection to carry out a survey
and make an inventory of the existing building and its contents if the clause 22C.1
insurance is to be effected and maintained by the Contractor under clause 220.3(2).
Possession of Site
23.1 (1) The Empioyer shall give possession of the Site to the Contractor on or before the
Date for Possession of the Site stated in the Appendix.
44
Possession, commencement and compietion (contd)
(2) Where the Contract provides for the Empioyer to give possession of the Site to the
Contractor in two or more parts on the dates stated in the Appendix, the Employer shalt
give possession of the Site to the Contractor in parts on or before those dates.
Postponement or suspension
The Architect may issue instructions regarding:
(a) the postponement of the Date for Possession of the Site or a part of the Site;
2-:
(b) the postponement of the Commencement Date of the whole or a part of the Works;
or
(2) it a new Completion Date is fixed after the issue of the certificate referred to in
clause 24.1 (1), the fixing of the new Completion Date shall cancel that certificate and
the Architect shall, if appropriate, issue another certificate to correspond to the new
Compietion Date.
. , <- /-q
(2) The Employer's notice under ciause 24.2(i) shall not be given either before the
certificate under clause 241.1(1) is issued or after the Final Certificate is issued.
(3) The rate per day of iiquidated and ascertained damages for the Works or a Section
shali be as stated in the Appendix and adjusted in accordance with clause 18.4 in
regard to the completion of any Reievant Part.
(4) The Employer may recover the liquidated and ascertained damages from the
Contractor under oiause 40 or as a debt.
45
24 Damages for non-completion (contd) 25
25 Extension of time
(a) state the likelihood and estimated length of the delay beyond the Completion Date;
(b) set out the material circumstances including the cause of the delay; and
(C) state if the Contractor considers that he is or may become entitled to an extension
of time due to the effects of an event listed in clause 25.1(3) (referred to in clause
25 as a listed event) and it so identify which of the listed events he believes to be
the cause of the deiay.
(c) the hoisting of tropical cyclone warning signs! No. 8 or above or the announcement
of a Black I-rainstorm Warning;
46
125 Extension of time (contd)
(9) an Architects instruction under clause 8.2 requiring the opening up for inspection
hall of work covered up or the testing of materials, goods or work and the consequentiai
:l or making good where the cost of that opening up, testing and making good is required
tion by that clause to be added to the Contract Sum;
rate
ong an Architect's instruction under clause 13.1 requiring a Variation;
(ii) the postponement of the Commencement Date of the whole or a part of the
Works; or
ate; (iii) the postponement or suspension of the whole or a part of the Works, unless:
(k) compiiance with clause 34.1 or with an Architects instruction under clause 34.2
requiring the Contractor to permit the examination, excavation or removal by a
third party of an obiect of antiquity found on the Site;
late instructions from the Architect, including those to expend a Prime Cost Sum
in a or a Provisionai Sum, or the late issue of the drawings, details, descriptive schedules
ong or other similar documents referred to in clause 5.6 except to the extent that the
ting Contractor faiied to comply with clause 5.7(2);
:y in
47
25 Extension of time (contd)
Lb.
(r) the failure of the Employer to supply or supply on time materials, goods, plant or
equipment that he agreed to provide for the Works;
(3) the failure of the Employer to give possession of the Site or, under ciause 23.1 (2),
a part of the Site on the Date for Possession of the Site or the part of the Site
stated in the Appendix, or the Employer subsequently depriving the Contractor of
the whoie or a part of the Site;
(t) delay to the Works due to time not reasonably foreseen by the Contractor in
obtaining approval or consent from a Government department;
(v) an act of prevention, a breach of contract or other default by the Employer or any
person for whom the Employer is responsible.
(a) continuously use his best endeavours to prevent or mitigate delay to the progress
of the Works, however caused, and to prevent the completion of the Works being
delayed or further delayed beyond the Completion Date, provided that the words
"best endeavours" shail not be construed to mean that the Contractor is obliged to
spend additional money, without reimbursement under clause 26, to acceierate
the carrying out of the Works to recover delay that the Contractor did not cause;
and
(b) do all that may reasonably be required to the Architects satisfaction to proceed
with the Works.
48
Extension of time (contd)
3r or (a) substantiation that the iisted event is the cause of the delay; and
ariod
. and (b) particulars of the cause, effect and length of the delay to the completion of the
ated Works or a Section beyond the Completion Date in sufficient detail to enable the
was Architect to make a decision under clause 25.3(1).
>ther
ale; (2) Where the deiay envisaged by the Contractor's first notice of delay commences
later than 28 days after the Contractor has given the first notice to the Architect, the
Contractor shall give the Architect a statement to this effect and shall submit the second
notice within 28 days of the commencement of the delay.
iuse
l the (3) Where the listed event has a continuing effect the Contractor shall:
d to
(a) give the Architect a statement to that effect together with:
at or (i) substantiation that the listed event is the cause of the delay; and
(ii) interim particulars including details of the cause and effect and an estimate of
ii?) the iength of the delay to the completion of the Works or a Section beyond the
Site Compietion Date;
)r of
(b) make further submissions to the Architect at intervals not exceeding 28 days giving
further interim particuiars and estimates of the length of the delay until the delay
ceases;
(c) within 14 days after the delay ceasing, submit to the Architect final particulars of
airiy the cause, effect and length of the delay to the Works or a Section beyond the
Completion Date in sufficient detail to enable the Architect to make a decision
under clause 25.3(i).
any
Fixing new Completion Date
(1) After receipt of the Contractors second notice the Architect shail give an extension
ct time to the Contractor by tixing a later Completion Date if he is satisfied that the
completion of the Works or a Section is being or is likely to be delayed beyond the
'ess Completion Date by the listed event stated by the Contractor in his first and second
3-ing notices to be the cause of the delay.
)rds
d to (2) The Architect shalt give the extension of time, and the reasons for his decision as
rate soon as practicable but in any case within 60 days after the receipt of the particulars
Jse; submitted with the second notice under clause 25.2.
(3) if, after receiving the first and second notices, the Architect decides not to fix a
eed later date as a new Cornpietion Date:
(a) the Architect shall notify the Contractor of this, giving the reasons for his decision,
as soon as practicable but in any case within 60 days of receipt of the particulars
ling submitted with the second notice under clause 25.2; and
cs)
49
25 Extension of time (contd) 25
(b) the Architect may revise his decision and fix a later date as the new Completion
Date if the Contractor provides further and better particulars within 28 days of the 25.
Architects notification under ciause 25.3(3)(a .
(4) It the Contractor faiis to submit the notices within the time frame prescribed under
ciause 25.1 or clause 25.2 but a first notice is nevertheless submitted, the Architect
shail, if he is satisfied that the completion of the Works or a Section has been delayed
by the iisted event stated in the Contractors first notice, give an extension of time to
the Contractor under clause 25.3 to the extent that he is able to on the information 25
available.
(5) if after fixing a new Completion Date under clause 25.3, the Architect issues an
instruction under:
(a) clause 13.1 for the omission of work or the omission or diminution of an obligation;
or
(b) clause 13.2 resulting in a substantial reduction of the work to be carried out, provided
that the variance was not apparent from the Contract Drawings,
the Architect may fix an eariier Completion Date, though not earlier than the Completion
Date stated in the Appendix, it it is fair and reasonable to do so.
(6) If the Architect gives an extension of time to the Contractor under clause 25.3
because of a listed event that occurs in the period of delay after the Completion Date
but before the Date of Substantial Completion, he shall add this extension of time to the
total of any extensions of time previously granted when fixing a new Completion Date,
even though the iisted event may have occurred later than the date that the Architect 26
fixes as the new Completion Date.
(7) The Architect may fix a new Completion Date under clause 25 earlier or later than 26
that previously fixed, during the period of deiay between the Completion Date and the
Date of Substantial Completion (if Substantial Completion takes place later than the
Completion Date) if it is fair and reasonable to do so having regard to any of the listed
events, whether by reviewing a previous decision, taking into account any further and
better particulars that may be submitted by the Contractor, or by taking into account
any extension of time granted under clause 253(6).
(8) The Architect shall finaliy decide the overall extension of time, if any, that he
considers the Contractor is entitled to under clause 25, whether by reviewing any
extension of time previously granted or otherwise, and shali fix the Completion Date,
which may be the same as but not earlier than the Completion Date previously fixed,
within 90 days after Substantial Completion or such later date as may be agreed by the
parties.
50
25 Extension of time (contd)
Rate of progress
time, too
25.5 (1) if, in the Architect's opinion, the rate of progress of the Works is, at any
reason
slow to ensure that the Works will be completed by the Completion Date for any
clause 25.3, the
which does not entitle the Contractor to an extension of time under
Architect may notify the Contractor accordingly.
(2) After receiving the Architect's notification the Contractor may, at his own discretion
that he
and with no entitlement to receive additional payment, take the measures
by the Completion
considers necessary to expedite the progress to complete the Works
Date.
Supplier
(2) The Architect shall notify each Nominated SubContractor and Nominated
of any new Completion Date fixed under clause 25.3.
saving required
(a) a description of the proposed measures necessary to achieve the
with full
by the Architect and a detaiied quotation for carrying out those measures
supporting particuiars;
be achieved by
(b) the Contractor's own estimate of the saving in time that could
the
carrying out the measures it the Contractor has reservations about achieving
saving in time requested by the Architect; and
in consideration
(c) details of any other terms and conditions required by the Contractor
for agreeing to carry out the measures.
51
26 Delay recovery measures (contd)
(2) Within 14 days oi receiving the delay recovery proposals, the Architect shall notify
the Contractor in writing that either the delay recovery proposals are agreed, or disagreed,
or that he wishes to discuss and agree revised proposals with the Contractor.
(2) if the Architect and the Contractor cannot reach agreement on the Contractor's
delay recovery proposals within E4 days of the Architects notice to discuss them under
clause 262(2), the Architect may, after receiving written directions from the Employer,
instruct the Contractor to carry out the measures in the absence of an agreement and
the Contractor shalt do so in accordance with the Architects instruction and:
(a) the Contractor shall prepare and submit to the Quantity Surveyor all the information
and documents relating to the cost of carrying out the measures that the Quantity
A
Surveyor may reasonably require; and
(b) the Quantity Surveyor shall ascertain the amount of additional payment to be made
to the Contractor for carrying out the measures, based on the extra cost incurred
by the Contractor with the addition of 15 percent for overheads and profit, within
a reasonable time after receiving the information and documents under clause
26.3(2)(a).
Contractor to be reimbursed for the cost of preparing the proposal if delay recovery not
instructed
26.5 (1) If the Architect and the Contractor do not reach an agreement about the terms of
the Contractors delay recovery proposals and the Architect does not instruct the
Contractor to carry out these proposals, then the Contractor shall be reimbursed for
the cost of preparing the proposais.
52
26 Delay recovery measures (contd)
(2) The Contractor shall submit to the Quantity Surveyor a statement of his costs with
full supporting details and the Quantity Surveyor shall ascertain the amount of additional
payment to be made as reimbursement to the Contractor.
(b) an Architects instruction under clause 8.2 requiring the opening up for inspection
of work covered up or the testing of materials, goods or work and the consequential
making good where the cost of such opening up, testing and making good is
required by that clause to be added to the Contract Sum;
(d) an Architects instruction under clause 13.2 resuiting in an increase in the work to
be carried out of sufficient magnitude to cause delay or disruption, provided that
the variance was not apparent from the Contract Drawings;
(i) the postponement of the Date for Possession of the Site or a part of the Site;
(ti) the postponement of the Commencement Date of the whole or a part of the
Works; or
(iii) the postponement or suspension of the whole or a part of the Works, unless:
(f) compliance with clause 34.1 or with an Architect's instruction under clause 34.2
requiring the Contractor to permit the examination, excavation or removal by a
third party of an object of antiquity found on the Site;
53
27 Direct loss and/or expense (contd)
(g) late instructions from the Architect, including those to expend a Prime Cost Sum
or a Provisional Sum, or the late issue of the drawings, details, descriptive schedules
or other similar documents referred to in clause 5.6, except to the extent that the
Contractor failed to cornpiy with clause 5."/(2);
(i) the failure of the Employer to supply or supply on time materials, goods, plant or
equipment that he agreed to provide for the Works;
(k) the failure of the Employer to give possession of the Site or, under clause 23.1 (2),
a part of the Site on the Date for Possession of the Site or the part of the Site
stated in the Appendix, or subsequently the Employer depriving the Contractor of
the whoie or a part of the Site; and
(I) any other delay or disruption for which the Employer is responsible including an
act of prevention or a breach of contract.
(a) the direct toss and/or expense was incurred because the progress of the Works
was delayed or disrupted by the qualifying event set out in the Contractors claim;
(b) the Contractor has not been and will not be reimbursed by a payment under any
other provisions of the Contract; and
(2) The ascertainment of the Contractor's claim shall be made as soon as practicable
but in any case within 60 days of receipt of the buildup of the claim and the particulars
submitted under clause 28.2(2)(a) to (d) or clause 28.2(4)(c), as the case may be.
54
27 Direct loss and/or expense (contd)
(2) The Architect shail instruct the Quantity Surveyor to ascertain, in accordance with
the Nominated SubContract, the amount of any additional payment for direct loss
and/or expense incurred by the Nominated SubContractor if the Architect is satisfied
that:
(a) the direct loss and/or expense was incurred because the progress of the Nominated
Sub-Contract works was oieiayed or disrupted by the event, being an event that
quaiitied the Nominated SubContractor for direct loss and/or expense under the
sub-contract, set out in the Nominated SubContractors claim; and
(b) the Nominated SubContractor has complied with all of the requirements of the
Nominated SubContract in respect of his claim.
(4) An amount of additional payment for direct loss and/or expense incurred by the
Nominated SubC0ntractor due to an act, omission or default of the Contractor shall be
dealt with between the Contractor and the Nominated SubContractor and shall not be
added to the sub-contract sum.
(a) within 28 clays of it becoming apparent to the Contractor that an event has occurred
which gives rise to a claim and he shall include in the_notice the contractual
provisions upon which the claim is based; or whether earlier or later
(b) within 7 days after receipt of a claim for additional payment from a Nominated
SubContractor under clause 27.4.
(2) The Contractor need not give the notice required under clause 28.1 (1) in the case
of an Architects instruction under clauses 13.1 or 13.2 insofar as that instruction is
subject to a Valuation under ciause 13.
55
28 Notice of claims for additional payment (contd)
(2) The Contractor shatl as soon as practicable but in any case within 60 days of
giving notice under clause 28.1, submit to the Architect:
(3) Where the effect of the event giving rise to the claim set out in the Contractors
notice of ciaim commences later than 60 days after the Contractor has given notice of
his intention to claim, the Contractor shall give the Architect a statement to that effect
and submit the information under clause 282(2) within 60 days of the commencement
of the effect of the event giving rise to the claim.
(4) Where the event giving rise to the claim has a continuing effect the Contractor shall:
(ii) an estimate of and buildup of the amount of the ciaim which shall be
considered to be an interim amount; and
(b) make further submissions to the Architect at intervais not exceeding 28 days giving:
(ii) up to date estimates of the amounts of the claim with further buiidups of
these amounts; and
(c) within 14 days after it becomes possible to ascertain the total claim, make the final
submission to the Architect as required under ciause 28.2(2) paragraphs (a) to (d).
56
29 Nominated Sub-Contractors and Nominated Suppliers
(a) an Architects instruction under clause 13.1 requiring a Variation for additional or
substituted work;
(c) an agreement between the Contractor and the Architect on behalf of the Employer,
(oi) a subcontractor to carry out the work provided for by the Prime Cost Sum and the
Contractor shall enter into a sub-contract with that subcontractor, who shall then
become a Nominated Sub-Contractor, in accordance with the terms stipulated in
the instruction; or
(e) a supplier to supply the materials or goods provided for by the Prime Cost Sum
and the Contractor shall enter into a supply contract with that supplier, who shall
then become a Nominated Supplier, in accordance with the terms stipulated in the
instruction.
(2) The term Nominated Supplier shall not apply to a supplier of materials or goods
which are specified in the Contract to be incorporated into the Works unless the materials
or goods are the subject of a Prime Cost Sum even it that supplier is the sole supplier of
those materials or goods.
(b) there are reasonable grounds for believing that the financial standing, solvency,
technical competence or reliability of that subcoritractor or supplier is not such
that a prudent contractor, having regard to the size and nature of the sub-contract
works or supply contract, would be willing to employ as a Nominated Sub-
Contractor or Nominated Supplier;
(C) there are reasonabie grounds for believing that the tender sum is not financially
viable; or
(Ci) the programme for carrying out the sub-contract works or for the delivery of the
materials and goods is unreasonable.
57
29 Nominated Sub-Contractors and Nominated Suppliers (contd)
(2) Where the Contractor is notified of the tender list of sub-contractors and suppliers
during the tender period, the Contractor shall, if he has an objection to a subcontractor
or supplier on the list, register his objection giving his reasons with his tender submission.
(3) Where the Contractor is notified of the tender list of sub-contractors and suppliers
after the award of the Contract, the Contractor shall, if he has an objection to a sub-
contractor or supplier on the iist, register his objection giving his reasons within 14 days
of being notified of the list of tenderers or, if a subcontractor or supplier who is not on
this list is nominated, within 14 days of receipt of the nomination instruction.
(4) If the Contractor made his objection to the inclusion of a sub-contractor or supplier
on the tender list in his tender submission or within the time required under clause
292(3) and the Architect considers the objection to be valid, the Architect shall either:
(a) withdraw the subcontractors or suppliers name from the tender list; or
(b) refuse to withdraw the subcontractors or suppliers name from the tender list and
notify the Contractor accordingly.
(5) It the Contractor made his objection to the nomination of the subcontractor or
supplier within the time required under clause 291.2(3), and the Architect considers the
objection to be valid, the Architect shall either:
(ii) instruct the Contractor to carry out the work himself or suppiy the materials or
goods himseif through a supplier approved by the Architect in which case the
instruction shail have the same effect as an instruction to expend a Provisional
Sum under clause 13.2; or
(b) refuse to withdraw the nomination instruction and notify the Contractor accordingly.
(6) Where the Architect, notwithstanding his acceptance of the validity of the
Contractors objection, either refuses to withdraw the subcontractors or suppliers
name from the tender list and subsequently nominates that subcontractor or supplier,
or refuses to withdraw the nomination instruction, the Contractor shall enter into a sub-
contract with that subcontractor or a supply contract with that supplier.
(7) If during the carrying out of the subcontract or the supply contract, the Contractor
believes that the subcontractor or supplier nominated under clause 292(6) has caused
deiay or disruption to the carrying out of the Works, he may apply for an extension of
time under clause 25.1 (3)(n) and/or additional payment for direct loss and/or expense
under clause 27.1(2)(h) but oniy to the extent that the delay or disruption was attributable
to the grounds for objection raised by the Contractor to the nomination of the sub-
contractor or supplier.
58
29 Nominated Sub-Contractors and Nominated Suppliers (contd)
(2) If the Architect instructs the Contractor to enter into a subcontract or supply
contract using either amended standard conditions or conditions that are different from
the standard conditions, then, unless the Contractor was advised of this requirement
with a copy of the required subcontract conditions or supply contract conditions before
submitting his tender, the Architect shall issue an instruction requiring a Variation in
respect of the differences between the two sets of subcontract conditions or supply
contract conditions.
(a) calculate the amount owing to each Nominated SubContractor and Nominated
Supplier in accordance with the subcontract and supply contract;
(b) notify the Contractor of the amount included in the interim Certificate for each
Nominated SubContractor and Nominated Supplier; and
(C) notify each Nominated SubContractor and Nominated Supplier, at the time the
interim Certificate is issued, of the amount of the interim payment included for that
subcontractor and supplier in the Interim Certificate and the amount of Retention
held by the Employer.
59
29 Nominated Sub-Contractors and Nominated Suppliers (contd)
(2) The Contractor shali pay each Nominated SubContractor and Nominated Supplier
the amount included for that Nominated SubContractor or Nominated Supplier in the
Interim Certificate, less any amount properly deductible by the Contractor, within 14
days, or such other time as may be stated in the subcontract or supply contract, of the
Contractor receiving payment from the Employer.
(3) The Contractor shall keep proper and detailed accounts and records of all payments
to Nominated SubContractors and Nominated Suppliers and shall make them availabie
for inspection by the Architect.
(2) The Contractor rnay withhold an amount from the payment included in an interim
Certificate for a Nominated SubContractor or Nominated Supplier if he provides
sufficient substantiation to satisfy the Architect that:
(4) Neither the existence nor the exercise of the Employers power under clause
29.8(3) shall make him liable to pay a Nominated SubContractor or Nominated Supplier
direct.
60
29 Nominated Sub-Contractors and Nominated Suppiiers'(contd)
(2) it in the Architects opinion the Nominated Sub-Contractor has failed to complete
the sub-contract works on time the Architect shail issue a certificate to the Contractor
to that effect in the form required by the sub-contract within 28 days of the Contractors
notification under ciause 29.1l(1), provided that the Architect is satisfied that the
Contractor has followed the provisions of clause 29.9, and shall issue a copy of his
certificate to the Nominated SubContractor.
(a) the subcontract works have been completed in accordance with the subcontract
or the supply of goods has been completed in accordance with the supply contract;
(b) the Architect and the Contractor are satisfied that the Nominated Sub-Contractor
or Nominated Suppiier has remedied all defects which have appeared and which
the Nominated SubContractor or Nominated Supplier has to remedy under the
subcontract or suppiy contract; and
61
29 Nominated Sub-Contractors and Nominated Suppliers (contd)
(2) The Contractor shali pay the Nominated SubContractor or Nominated Supplier
the amount included for him in the Interim Certificate, less any amount properly deductible
by the Contractor, within 14 days, or such other time as may be stated in the sub-
contract, of the Contractor receiving payment from the Employer.
(3) Upon finai payment to the Nominated SubContractor or the Nominated Supplier:
(a) the Limit of Retention stated in the Appendix shall be reduced by the amount of
retention in respect of the sub~contract or supply contract; and
(b) the Contractor shall be discharged from any further liability for rectifying defects or
other faults in the sub-contract works or the goods during the Defects Liability
Period except for any defects not apparent at the time that the final payment was
made.
Re-nomination
29.13 (1) If the employment of a Nominated Sub-Contractor is determined or a supply contract
is terminated for any reason, the Architect, as soon as practicable, shall nominate a
replacement subcontractor or supplier to complete the work subcontracted to the
originai Nominated Sub-Contractor or to supply the materials and goods, or the
equivalent of the materials or goods, that were to have been supplied by the original
Nominated Supplier, and the Contractor shall immediately enter into a subcontract or
supply contract with the replacement subcontractor or supplier.
(4) The provisions of clauses 29.13(1), 2913(2) and 29.13(3) shall also apply in the
event of the determination of the employment of a replacement subcontractor or the
termination of a supply contractwith a replacement supplier.
62
29 Nominated Sub-Contractors and Nominated Suppiiers (contd)
(5) The Contractor shaii have the same right of reasonable obiection to the nomination
of a replacement Nominated SubC0ntractor or a replacement Nominated Supplier as
he had under clause 29.2 to the nomination of the original Nominated SubContractor
or Nominated Supplier, and provided that the Contractor registers his objection giving
his reasons within 14 days of the nomination of a replacement Nominated SubC0ntract0r
or replacement Nominated Suppiier, the provisions of clause 29.2, where appropriate,
shall appiy.
Architects consent
29.14 The Contractor shail not determine the employment of a Nominated SubContractor or
terminate a supply contract with a Nominated Supplier without the Architects consent.
(a) a Specialist Contractor who, under Clause 64(3), shali include a statutory undertaker
or utiiity company engaged by the Employer to carry out work;
(2) Where the Contract does not provide the information referred to in clause 302(1),
the Contractor shalt stilt ailow the Specialist Contractor reasonable access to the Site
and permit him to carry out his work on the condition that if the Contractor incurs
additionai costs by doing so he may submit a detaiied claim with supporting particulars
to the Architect for reimbursement of these costs. if the Architect is satisfied that the
Contractor has incurred additional costs, the Architect shall instruct the Quantity Surveyor
to ascertain the amount of additional payment to be made.
(3) The Contractor shaii ailow persons engaged by the Employer under clause 4.3(3)
reasonable access to the Site and permit them to carry out their work without hindrance
as provided in clause 4.3(4).
63
30 Persons engaged by Empioyer (contd)
(4) The Contractor shall aliow a person referred to as a third party under clause 34.2
reasonabie access to the Site and permit him to examine, excavate or remove an object
of antiquity upon an instruction from the Architect to do so under that clause.
(2) The interim Certificate shall state the amount due to the Contractor from the
Employer and the Employer shalt pay that amount to the Contractor, less any monies
deductible by the Employer under clause 132.1(6), within the period for payment of
certificates stated in the Appendix.
(3) After the issue of the Substantial Completion Certificate for the whoie of the Works,
interim Certificates shall only be issued when further amounts are, in the Quantity
Surveyors opinion, due to the Contractor.
(4) The Contractor shall submit to the Quantity Surveyor, at least 14 days before the
date on which an interim Certificate is due to be issued, a statement setting out the
Contractor's estimate of the gross valuation of the work in progress including:
(a) the amount estimated for each of the items referred to in clause 322(3);
(b) a priced list of the materials and goods either delivered to or adjacent to the Site or
stored offsite and to be included in the Interim Certificate under clause 32.3;
(c) aii the accounts, vouchers, receipts and other documents that may reasonably be
required by the Quantity Surveyor; and
(d) the statements, accounts, vouchers, receipts and other documents submitted to
him by the Nominated SubContractors and Nominated Suppliers in accordance
with their subcontracts or suppiy contracts.
64
32 Certificates and payments (contd)
(5) The Quantity Surveyor shall make an interim vaiuation of the work in progress in
accordance with clause 32.2 to determine the estimated amount due in an interim
Certificate and shall submit his valuation to the Architect at least 7 days before the
Interim Certificate is due to be issued.
(6) The Ernpioyer may make any deduction authorised by the Contract from the amount
due to the Contractor under an interim Certificate, whether or not any Retention is
included in that Interim Certificate, provided that he gives a notice to the Contractor by
special delivery stating the amount of the deduction, a buildup of that amount and the
reason for it at least 7 days before making the deduction.
(b) the total amount stated as due in each Interim Certificate previously issued.
(2) The estimated gross vaiuation of the work in progress shall be the total of the
amounts iisted in ciause 32.2(3) less the total of the amounts listed in clause 322(4).
(3) The following estimated amounts shali be included in the gross valuation:
(a) the value of the permanent work properly carried out including any additional work
or obiigation instructed as a Variation to the extent that this additional work or
obligation has been completed or fuifiiled in whoie or in part;
(b) the proportion of the vaiue of temporary works properly carried out where their
value is inciuded as a separate sum in the Schedule of Quantities and Rates;
(c) the proportion of the vaiue of a preliminary item properly provided or carried out by
the Contractor where its vaiue is included as a separate sum in the Scheduie of
Quantities and Rates;
(cl) the value of materiais or goods on or adjacent to the Site provided that:
(iii) they are adequateiy protected against weather, other damage or theft.
(e) the vaiue of materiais or goods to be incorporated into the permanent Works before
they are delivered to or adiacent to the Site and to be included in an Interim
Certificate in accordance with clause 32.3;
65
32 Certificates and payments (contd)
(f) the amounts payable for work carried out by Nominated SubContractors in
accordance with the subcontracts;
(g) the amount payable in respect of a Contractor's tender accepted under ciause
29.4 for work provided for by a Prime Cost Sum;
(h) the amounts payabie for materials or goods supplied by Nominated Suppliers in
accordance with the supply contracts;
(i) the appropriate proportion of the sums included as separate items in the Scheduie
of Quantities and Ftates tor:
(ii) opening up and testing materials, goods or work under clause 8.2; or
(iii) effecting and maintaining insurances resulting from the Emp|oyers failure to
insure under clause 22B.2(2) or 22C.3(2);
(k) the amount ascertained as additional payment for direct loss and/or expense under
clause 27.2;
(l) the amount payable for reimbursement for increases in the costs of labour and/or
materials under ciause 38 if applicable; and
(m) any other amount which is required by the Contract to be added to the Contract
Sum.
(4) Without prejudice to the Employers right of set off, the following estimated amounts
shalt be deducted from the gross vaiuationz
(i) correction of errors in setting out the Works under clause 7(2);
(b) the amount ailowabie to the Empioyer for decreases in the costs of labour and/or
materials under ciause 38 if applicabie; and
66
32 Certificates and payments (contd)
(c) any other amount which is required by the Contract to be deducted from the Contract
Sum.
Calculation of Retention
32.4 (1) The Retention on the payment for the Contractors work in progress shall be
calcuiated by applying the percentage stated in the Appendix as the Retention
Percentage to the estimated gross vaiuation referred to in clause 32.2 exclusive of the
amounts payabie: i
(d) for any adjustment for fluctuations in the costs of labour or materials under clause
38.
(2) The amount heid as the Retention shall not exceed the amount stated in the
Appendix as the Limit of Retention, as may be increased or reduced in accordance with
the Contract. Once the Limit of Retention has been reached no further amounts shall
be retained.
(3) The retention on the payment for the Nominated Sub~Contractors work in progress
and the Nominated Suppliers supply of materials or goods shall be calculated in
accordance with the subcontract or the supply contract, as the case may be and
added to the Retention held on the payment for the Contractors work.
Retention Rules
32.5 (1) The Retention shalt be held upon trust by the Employer for the Contractor and for
any Nominated SubContractor or Nominated Supplier (without obligation to invest)
subject to the rights of the Employer to have recourse to it for payment of any amount
which he is entitieci to under the Contract or at law or to deduct from it any sum owed
to him by the Contractor, provided that the Employer gives notice to the Contractor in
accordance with ciause 32.1 (6).
(2) The Architect shall issue an Interim Certificate for the payment of onehalf of the
Retention heid in respect of the whole of the Works, a Section or a Relevant Part, as the
case may be, E4 days after Substantial Completion of the whole of the Works, that
Section or Relevant Part.
67
32 Certificates and payments (contd)
(3) The amount of the Retention held in respect of a Section or Relevant Part shall be
deemed to bear the same reiationship to the Retention held for the whoie of the Works
as the estimated amount contained in the Contract Sum for that Section or Relevant
Part bears to the Contract Sum.
(4) The Architect shall issue an Interim Certificate for payment of all remaining Retention
within 14 days after the issue of the Defects Rectification Certificate for the whole of the
Works under clause 17.4 or 17.5.
(2) The Quantity Surveyor shall send draft copies of the final account to the Contractor
and the relevant extracts to each Nominated Sub-Contractor or Nominated Supplier
from time to time as the preparation of the final account progresses.
(3) The Contractor shall submit to the Quantity Surveyor all the documents that are, in
the opinion of the Quantity Surveyor, reasonably necessary for the adjustment of the
Contract Sum, including those relating to the accounts of Nominated SubContractors
and Nominated Suppliers, not later than 6 months after Substantial Completion of the
whole of the Works or 3 months before the end of the period for the compietion of the
final account, whichever is earlier.
(4) The submission of the documents referred to in clause 32.6(3) shall not be a
condition precedent to the Quantity Surveyor preparing the final account, and, if the
Contractor faiis to compiy with that clause, the Quantity Surveyor shall prepare the final
account based on the information that is available to him.
(5) The Architect shall issue a copy of the final account signed by the Quantity Surveyor
and the Contractor to each of the parties by special delivery.
(2) The foiiowing amounts shaii be deducted from the Contract Sum:
(a) ail Prime Cost Sums for work to be carried out by Nominated SubContractors and
any Contractors profit and attendance priced in the Schedule of Quantities and
Rates as separate items on these sums included in the Schedule of Quantities and
Rates;
(b) alt Prime Cost Sums for materials or goods to be suppiied by Nominated Suppliers
and any Contractor's profit priced in the Schedule of Quantities and Rates as
separate items on these sums included in the Schedule of Quantities and Rates;
68
32 Certificates and payments (contd)
(C) ail Provisional Sums and the vatue of ail work for which Provisional Quantities and
Provisional Items are included in the Schedule of Quantities and Rates;
(d) the total of all Valuations under ciause 13.4 which result in a reduction in the Contract
Sum;
(i) correction of errors in setting out the Works under clause 7(2);
(f) the amount allowable to the Employer for decreases in the cost of labour and/or
materials under clause 38 if appiicable; and
(g) any other amount which is required by the Contract to be deducted from the Contract
Sum.
(b) the Contractors tender sum accepted under clause 29.4 for work provided for by
a Prime Cost Sum as adjusted in accordance with the terms of the tender;
(0) the supply contract sums for materials or goods supplied by each Nominated
Supplier as adjusted in accordance with the supply contract;
(d) the Contractors profit upon the Nominated SubContract sums and on the sums
payable to Nominated Suppliers under ctauses 32.7(3)(a) and 32.7(3)(c) at the rates
included in the Schedule of Quantities and Rates or in the case where the nomination
arises from either:
at appropriate rates in the Schedule of Quantities and Rates or, if none, at fair
rates;
(e) the sums payable to the Contractor for attendance upon each Nominated Sub-
Contractor, provided that the Nominated SubContract sum has been added to
the Contract Sum under clause 32.7(3)(a), calcuiated as follows:
69
32 Certificates and payments (contd)
(E) if the Prime Cost Sum is included in the Schedule of Quantities and Hates, the
sum payable for attendance shalt be the price entered in the Schedule of
Quantities and Rates as a separate item whether or not the Nominated Sub-
Contract sum is greater or less than the Prime Cost Sum; or
(ii) if the Prime Cost Sum arose either from an instruction for the expenditure of a
Provisional Sum, an instruction requiring a Variation or by agreement between
the Architect and Contractor, the sum payabie shall be based upon appropriate
rates in the Schedule of Quantities and Rates, or shalt be a reasonable sum;
(f) the totai of all Valuations under clause 13.4 which results in an increase in the
Contract Sum;
(g) the total of the Valuation of work carried out by and any amount paid by the
Contractor in accordance with the instructions of the Architect as to the expenditure
of a Provisional Sum and of ail work for which Provisional Quantities and Provisional
items are included in the Schedule of Quantities and Rates;
(ii) opening up and testing materials, goods or work under clause 8.2; and
(iii) effecting and maintaining insurances resulting from the Employers failure to
insure under clauses 22B.2(2) or 22C.3(2);
(i) the amount ascertained as additional payment for direct loss and/or expense under
clause 27.2;
(j) the amount payable for reimbursement for increases in the costs of labour and/or
materials under ciause 38, if applicable; and
(k) any other amount which is required by the Contract to be added to the Contract
Sum.
(2) At the same time as the Architect issues the Final Certificate, he shall notify each
Nominated SubContractor and Nominated Supplier of the date it was issued and the
amount inciudeci for the work carried out or the materials or goods supplied by them.
70
32 Certificates and payments (contd)
(13) the sum of the amounts already stated as due in each interim Certificate; and
(c) the difference between the two sums expressed as a balance due to the Contractor
from the Ernpioyer or to the Employer from the Contractor, as the case may be.
(4) The balance referred to in clause 32.8(3) shall be a debt payable, either by the
Employer to the Contractor or by the Contractor to the Employer, as the case may
be, 28 days after the issue of the Final Certificate, subject to:
(a) the materials, goods, workmanship and work were provided or carried out in
accordance with the requirements of clause 8 to the Architects satisfaction;
(b) the necessary effect has been given in the final account to all the terms of the
Contract requiring an adjustment to be made to the Contract Sum;
(c) all and only such extensions of time, it any, as are due under clause 25 have been
given; and
(d) any additional payment for direct loss and/or expense under clause 27 arising out
of the occurrence of any of the qualifying events referred to in that clause is in fuli
and final settlement of all claims for breach of contract, duty of care, statutory duty
or otherwise,
except and insofar as the Final Certificate shall have been rendered erroneous by reason
of fraud, dishonesty or fraudulent concealment.
(2) The issue of the Final Certificate shall not otherwise prejudice any common law
rights and remedies regarding defective work.
(a) the proceedings have been concluded whereupon the Final Certificate shall be
subject to the terms of any award orjudgment in or settlement of the proceedings;
or '
71
32 Certificates and payments (contd)
(b) 12 months have passed without either party taking a further step in the proceedings,
uniess there is reasonable cause for not taking this step, whereupon the Final
Certificate shail be subject to any terms agreed in partial settlement,
whichever is eariier.
Late payment
32.13 if the Employer does not pay an amount certified within the stipulated period of time,
the Contractor, without prejudice to his other rights and remedies, shall be entitled to
payment together with the certified amount by the Employer of interest at 1% below
the judgment debt rate prescribed from time to time by the Rules of the High Court
(Chapter 4A, Laws of Hong Kong) on the amount outstanding 7 days after the iatest
date on which the certified amount should have been paid.
33 Surety bond
(2) The Contractor shall deiiver the bond duly executed by the insurance company or
bank within 28 days of the acceptance of the Contractors tender.
(3) The surety bond shail be in the form set out in the Specification or, if not set out in
the Specification, in the form set out in Schedule 1 of the Conditions, and the cost of
obtaining the bond shalt be borne by the Contractor.
33.28 The insurance company or bank shall be released from the surety bond upon the issue
of the Defects Rectification Certificate.
72
33 Surety bond (contd)
34 Antiquities
(a) use his best endeavours not to disturb the fossil, antiquity or object and shall
cease work if and insofar as the continuance of work would endanger it or prevent
or impede its excavation or removal;
(is) take an measures which may be necessary to preserve the fossil, antiquity or object
in the exact position and condition in which it was found; and
(c) immediately inform the Architect of the discovery and precise location of the fossil,
antiquity or object.
35 Determination by Emptoyer
Default by Contractor
35.1 (1) The Architect may give a notice of default to the Contractor before Substantial
Compietion of the whoie of the Works if the Contractor defaults by:
(a) completely or substantiaiiy suspending the carrying out of the Works without good
cause;
(c) not complying with an instruction from the Architect under ciause 8.3 for the
replacement, repair or reconstruction of materials, goods or work not in accordance
with the Contract resuiting in the Works being materialiy affected;
(e) not complying with clause 19.2 by sub-letting the whole or substantially the whole
of the Works to the same person.
73
35 Determination by Employer (contd)
(2) The notice of default shail specify the default and state that a notice of determination
notice of
may be served if the default continues for a further 14 days after receipt of the
default.
of the
(3) The Employer may give a notice of determination of the employment
Contractor if:
given
(a) the Contractor continues the default for 14 days after receipt of the notice
under ciause 35.1 (1);
(b) the Architect certifies this during the continuation of the default; and
issue of
(c) the notice of determination is given to the Contractor within 14 days of the
the Architects certificate under clause 35.1 (3)(b).
shall
(4) The determination of the empioyment of the Contractor under clause 35.1(3)
take effect on the date of receipt of the notice of determination.
a notice of
(5) Where the Contractor ends the default, or the Employer does not give
if:
determination, the Employer may still determine the employment of the Contractor
time
(c) the notice of determination is given to the Contractor within a reasonable
after the issue of the Architects certificate under clause 35.1 (5)(b).
shall
(6) The determination of the employment of the Contractor under clause 35.i(5)
take effect on the date of receipt of the notice of determination.
insolvency of Contractor
of the
35.2 (1) The Employer may give a notice of determination of the employment
Contractor if the Contractor:
him;
(c) has a petition for compulsory windingup presented or made against
the purpose of
(d) enters into compulsory or voiuntary liquidation except for
reconstruction; or
74
35 Determination by Emptoyer (contd)
(a) the Contractor shall not remove any materials, goods, temporary buildings, plant
or equipment from the Site until instructed to do so by the Architect under ciause
35.4;
(b) the Empioyer shail be given a lien upon all materials, goods, temporary buildings,
plant and equipment belonging to the Contractor; and
(c) the Employer may provide site security it the Architect is not satisfied that adequate
site security is being provided in which case:
(i) the Contractor shail ailow access to the Site for this purpose; and
(ii) the Employer may recover the reasonable cost of providing site security in
accordance with clause 40 or as a debt.
Consequences of determination
35.4 (1) In addition to their other obiigations under the Contract, the parties shall act in
accordance with ciause 35.4 upon determination by the Employer under clause 35.
(2) The provisions of clauses 20 and 21 shali remain in effect until the Contractor has
ieft the Site notwithstanding determination of the employment of the Contractor.
(3) The Contractor shail return possession of the Site to the Employer immediateiy
upon determination, notwithstanding that he may dispute the validity of the determination.
in the event of a breach of contract by the Employer in determining the employment of
the Contractor, the only redress the Contractor shall have against the Employer is a
claim in damages.
(4) if the Architect so instructs, the Contractor shall immediately remove his materials,
goods, temporary buildings, piant and equipment with care so as to prevent injury,
death or damage to persons or property and ensure that other owners remove theirs
with similar care except to the extent that:
(b) the Architect instructs that some or ali of them shall be left on the Site for use in
cornpieting the Works.
(5) it the Contractor does not comply with clause 35.-4(4) within a reasonable time, the
Empioyer may, without being responsible for any loss or damage, remove and sell the
Contractors property and hold the proceeds, less all expenses incurred, to the credit
of the Contractor.
75
35 Determination by Employer (contd)
Works and to
(6) The Employer may employ and pay other persons to complete the
permitted by the
rectify defects of the kind referred to in clause 17.3 and they shall be
buildings, plant
Contractor to enter the Site and use the materials, goods, temporary
and equipment left on the Site under clause 35.4(4).
Employer,
(7) if instructed to do so by the Architect, the Contractor shall assign to the
so far as he is legally able to do so, without payment:
or other
(a) all suppliers, manufacturers and subcontractors warranties, guarantees
insofar
anciliary agreements for materials, goods and work relating to the Works,
as they are required by the Contract, within 28 days of the date of determination;
and
of materials or
(b) the remaining assignable benefit of any agreements for the supply
goods, carrying out of work and the hiring of plant and equipment within [4 days
'
of the date of determination.
supplied,
(8) The Employer shall pay for materials, goods, work, plant and equipment,
agreements
carried out or hired after determination at the rates stated in the relevant
between the Contractor and his sub-contractors or suppliers.
delivered
(9) The Employer may pay a subcontractor or supplier for materials or goods
goods or work have not already been
to the Site and work carried out if the materials,
goods or
paid for by the Contractor. If the Contractor has been paid for the materials,
may recover the
work but has not paid the subcontractor or supplier, the Employer
sum paid to the Contractor under clause 40 or as a debt.
the Contractor
(10) The Employer shall not be required to make any further payment to
unless the provisions of clause
untii the finai settlement is made under clause 35.6,
35.7 apply.
excluding the
(a) the expenses incurred by the Employer in completing the Works
cost of Variations instructed after determination;
damages
(b) the amount of any damage including any liquidated and ascertained
under clause 24 due up to the date of determination and direct loss and/or expense
caused to the Employer by the determination;
and
(c) the payment made or otherwise discharged in favour of the Contractor;
Works calculated
(d) the total amount that would have been payable for completing the
in accordance with the Contract if the determination had not occurred.
76
35 Determination byAEmployer (contd)
(a) the cost incurred by the Ernpioyer in completing the Works represented by the
total of the items in paragraphs (a), (b) and (c) in clause 35.5; and
(b) the amount that it wouid have cost the Employer to have carried out and completed
the Works but for the determination, represented by the amount in paragraph (cl) in
clause 35.5.
(2) The difference between the two amounts in clause 35.6(1)(a) and (b) shall be
expressed in the certificate as a debt due to the Contractor from the Employer, or to the
Employer from the Contractor, as the case may be, and shall be payable within 28 days
after the issue of the Architects certificate.
(2) If instructed to do so by the Architect, the Contractor shall submit ail the documents
including those relating to the accounts of Nominated SubContractors and Nominated
Suppliers which are, in the Quantity Surveyors opinion, necessary to calculate and
prepare the final account.
(3) The Quantity Surveyor shail prepare the final account as soon as practicable after
receiving sufficient supporting documentation.
(4) If the Contractor fails to comply with clause 357(2) within 60 days of being instructed
by the Architect to do so, the Quantity Surveyor shall prepare the final account based
on the information that is available to him.
(a) the estimated value of the work in progress properly carried out up to the date of
determination calculated in accordance with clause 322(2);
(b) the amount of any deduction authorised by the Contract, the amount of any damage
including any liquidated and ascertained damages under ciause 24 that wouid
have been due up to the date of determination and direct loss and/or expense
caused to the Employer by the determination; and
77
35 Determination by Empioyer (contd)
(6) The Architect shall certify for the purpose of the final settlement, the amounts set
out in the final account and the ditference between the value of the work in progress
represented by clause 35.7(5)(a) and the costs incurred by the Employer represented
by clause 35.7(5)(b) and (c) shall be expressed as a debt due to the Contractor from the
Employer or to the Employer from the Contractor, as the case may be.
36 Determination by Contractor
Default by Employer
36.1 (1) The Contractor may give a notice of default to the Employer if the Employer defaults
by:
(a) not paying an amount certified due to the Contractor less any deductions authorised
by the Contract within the period for payment of certificates stated in the Appendix;
(b) interfering with or obstructing the issue of a certificate to the detriment of the
Contractor;
(cl) postponing the date for commencement of the whole of the Works or substantially
the whole of the Works for a period of 120 days or more due to an Architects
instruction under clause 23.3; or
(e) causing the carrying out of the whoie of the Works or substantially the whole of the
Works to be suspended for a continuous period of 120 days or more due to an
Architects instruction under clause 23.3 unless notice of the suspension is given
in the Contract or the suspension was caused by a breach of contract or other
default of the Contractor or any person for whom the Contractor is responsible.
(2) The notice of default shall specify the default and state that notice of determination
may be served if the default continues for a further 14 days after receipt of the notice of
defauit.
(3) The Contractor may give a notice of determination of his own employment to the
Employer if:
(a) the Empioyer continues the default for 14 days after receipt of the notice given
under clause 36.i(1); and
(b) the notice of determination is given to the Employer within a further 14 days.
(4) The determination shall take effect on the date of receipt of the notice of
determination.
78
36 Determination by Contractor (cont'd)
(5) Where the Empioyer ends the defauit, or the Contractor does not give a notice of
determination, the Contractor may still determine his own empioyment if:
(a) the Employer continues the default or resumes it at any time; and
(b) the notice of determination is given to the Employer upon or within a reasonable
time after the continuation or resumption of the default except that in the case of
clause 36.1(1)(d) the resumption of the default shall have lasted for a continuous
period of at least 30 days.
Insoivency of Employer -
36.2 (1) The Contractor may give a notice of determination of his own employment if the
Employer:
(c) has a petition for compulsory windingup presented or made against him;
(d) enters into compulsory or voiuntary iiquidation except for the purpose of
reconstruction; or
(2) The determination shall take effect on the date of receipt of the notice of
determination.
(3) The obligation of the Contractor to carry out and to complete the Works shall be
suspended immediately after the occurrence of any of the events set out in clause
36.2 and before any notice of determination of his own employment takes effect.
Consequences of determination
36.3 (1) in addition to their other obligations under the Contract, the parties shall act in
accordance with clause 36.3 upon determination by the Contractor of his own
employment under clause 36 uniess the employment has been reinstated.
(2) The provisions of ciauses 20 and 21 shalt remain in effect until the Contractor has
left the Site notwithstanding determination of the employment of the Contractor.
(3) The Contractor shalt immediateiy remove his materials, goods, temporary buildings,
ptant and equipment with care so as to prevent injury, death or damage to persons or
property and ensure that other owners remove theirs with similar care except to the
extent that:
79
36 Determination by Contractor (contd)
(b) the Architect instructs that some or all of them are to be left on the Site for use in
completing the Works and the Contractor agrees to leave them on the Site subject
to payment under clause 36.4(1)(c) for materials and goods and a reasonable
payment for the other items.
(4) The Contractor shall return the possession of the Site to the Employer immediately
upon completing the removal of all items referred to in clause 136.3(3) and in any case
not later than 28 days after determination but shall be allowed access to the Site to take
all measurements required for the preparation of the final account.
(5) If instructed to do so by the Architect, the Contractor shall assign to the Employer,
so far as he is legally able to do so, without payment:
(b) the remaining assignabte benefit of any agreements for the supply of materials or
goods, carrying out of work and the hiring of plant and equipment within 14 days
of the date of determination.
(6) The Employer shall pay for materials, goods, work, plant and equipment supplied,
carried out or hired after determination at the rates stated in any relevant agreement
between the Contractor and his subcon1:ractors or suppliers.
(7) The Employer may employ and pay other persons to complete the Works and to
rectify defects of the kind referred to in clause 17.3 and they shall be permitted to enter
the Site and use the materials, goods, temporary buildings, plant and equipment left on
the Site by the Contractor under clause 363(3).
(8) The Employer shall pay the Contractor the Retention within 28 days of the date of
the determination, subject to any right of the Employer of deduction which had accrued
before determination.
(a) the estimated value of the work in progress properly carried out up to the date of
determination calculated in accordance with clause 322(2);
(b) the estimated value of any work carried out for the protection of the Site and the
Works after determination;
(c) any amount not included in clause 36.4(1)(a) for the cost of materials and goods
that were properly ordered for the Works and delivered to or adjacent to the Site
which the Contractor has paid for, or is legally bound to pay for, and has or will
transfer the property in these materials and goods to the Employer;
80
36 Determination by Contractor (contd)
(d) the reasonable cost of removai of materials and goods not to be sold to the Employer
and temporary buildings, plant and equipment not to be left on the Site; and
(e) the amount of any direct loss and/or expense caused to the Contractor by the
determination.
(2) The estimated vaiue of the work in progress referred to in clause 36.4(i)(a) shall
be broken down into separate amounts for each of the reievant items listed in clause
322(3).
(a) the amount of the final account being the total of the amounts under clause
364(1); and
(2) The difference between the two amounts in clause 36.6(t)(a) and (b) shall be
expressed in the certificate as a debt due to the Contractor from the Employer, or to the
Employer from the Contractor, as the case may be and shall be payable within 28 days
after the issue of the Architect's certificate.
81
37 Determination by Employer or Contractor
Site security
37.2 (1) The Employer may provide site security it:
Consequences of determination
the Contract the parties shall act in
37.3 (1) in addition to their other obligations under
of the employment of the Contractor
accordance with ciause 37.3 upon determination not
clause 37.1 if the employment has
by either the Employer or the Contractor under
been reinstated.
Employer; or
(a) they have become the property of the
82
37 Determination by Employer or Contractor (contd)
(b) the Architect instructs that some or all of them are to be left on the Site for use in
completing the Works.
(4) The Contractor shall return possession of the Site to the Employer immediately
upon cornpieting the removal of all items referred to in clause 373(3) and in any case
not later than 28 days after determination notwithstanding that he may dispute the
validity of the determination. in the event of a breach of contract by the Employer in
determining the employment of the Contract the only redress the Contractor shall have
against the Employer is a claim in damages.
(5) If instructed to do so by the Architect, the Contractor shall assign to the Employer,
so far as he is legally able to do so, without payment:
(b) the remaining assignable benefit of any agreements for the supply of materials or
goods, carrying out of work and the hiring of plant and equipment within 14 days
of the date of determination.
(6) The Empioyer shall pay for materials, goods, work, plant and equipment supplied,
carried out or hired after determination at the rates stated in any relevant agreement.
(a) one~half of the Retention within 28 days of the date of determination, subject to
any accrued right of deduction which he had before the determination; and
(b) the remainder of the Retention as part of and in accordance with the final settlement
under clause 37.5.
(2) It the Contractor fails to comply with clause 3724(1) the Quantity Surveyor shall
prepare the final account based on the information that is available to him.
(3) The Quantity Surveyor shall prepare the final account as soon as practicable after
receiving sufficient supporting documentation or after the expiry of the 60 days referred
to in ciause 137.4(1).
83
37 Determination by Employer or Contractor (contd)
(a) the estimated value of work in progress properly carried out up to the date of
determination calcutated in accordance with clause 322(2);
(lo) the estimated value of any work carried out for the protection of the Site and the
Works after determination;
(0) any amount, not included in the amount calculated under clause 37.4(4)(a), for the
cost of materials and goods deiivered to or adjacent to the Site properly ordered
for the Works which the Contractor has paid for, or is legally bound to pay for, and
has or will transfer the property in to the Employer; and
(d) the reasonable cost of removal of materials and goods not to be sold to the Employer
and temporary buildings, plant and equipment not to be left on the Site.
(a) the amount of the tinat account being the total of the amounts under clause
37.4(4); and
(2) The difference between the two amounts in clause 815(1) shall be expressed in
the certificate as a debt due to the Contractor from the Employer, or to the Employer
from the Contractor, as the case may be, and shall be payable within 28 days after the
Architects certificate.
33 Fluctuations
84
39 Notices, certificates and other communications
(3) Any notice, certificate or other communication sent by prepaid post shall be deemed
to be received two ciear days, exctuding general holidays, after posting.
41 Settlement of disputes
(2) Each party shall designate one of its own senior executives as its representative
(referred to in clause 41 as the Designated Representatives") within 14 days of
acceptance of the Contractors tender, and the Designated Representatives shall
endeavour to settle disputes that arise during the carrying out of the Works.
(3) The Designated Representatives shall have the authority to settle disputes and
shall not be involved in the day to day administration of the Contract.
(2) The Designated Representatives shall meet within 7 days of receipt of a notice
from the Architect requesting them to resolve the dispute.
85
41 Settlement of disputes (contd)
Reference to mediation
of
41.3 (1) If the dispute is not resoived by the Designated Representatives within 28 days
may
the dispute being referred to them by the Architect under clause 41.2, either party
to mediation
give a notice to the other party, by special delivery, to refer the dispute
and the person to act as the mediator shali be agreed between the parties.
after
(2) if the parties tail to agree on the person to act as the mediator within 21 days
on the
either party has given to the other a written request to do so, the mediator shall,
for the
written request of either party, be appointed by the President or Vice-President
or
time being of The Hong Kong Institute of Architects co-jointly with the President
Vice-President for the time being of the Hong Kong institute of Surveyors.
in
(3) The mediation shall, unless otherwise agreed by the parties, be conducted
Centre Mediation
accordance with and subject to the Hong Kong International Arbitration
Fiuies except those provisions in the Rules relating to the appointment of the mediator.
first
(4) A dispute under Articie 5 shall be immediately referred to arbitration without
being referred to mediation.
Reference to arbitration
of
41 .4 (i) It the dispute is not settied by mediation within 28 days of the commencement
delivery, to
the mediation, either party may give a notice to the other party, by special
agreed
refer the dispute to arbitration and the person to act as the arbitrator shall be
between the parties.
after
(2) if the parties fail to agree on the person to act as the arbitrator within 21 days
on the
either party has given to the other a written request to do so, the arbitrator shali,
for the
written request of either party, be appointed by the President or Vice-President
or
time being of The Hong Kong Institute of Architects co-jointly with the President
VicePresident for the time being of the Hong Kong institute of Surveyors.
to
(3) The Presidents or VicePresidents referred to in clause 41 .4(2), if in agreement
Centre
do so, may, at their discretion, request the Hong Kong international Arbitration
to appoint the arbitrator, by a joint letter to the Chairman of that organization.
appoint
(4) It the Presidents or VicePresidents referred to in clause 41 4(2) fail to
the arbitrator within 80 days after receiving the written request to do so under clause
by
414(2) then the arbitrator shalt on the written request of either party be appointed
the Hong Kong internationai Arbitration Centre.
the
(5) The arbitration shalt be a domestic arbitration conducted in accordance with
Arbitration Ordinance (Chapter 341, Laws of Hong Kong) and, unless otherwise agreed
by the parties, with the Domestic Arbitration Rules of the Hong Kong international
of
Arbitration Centre except those provisions in the Rules relating to the appointment
the arbitrator.
86
41 Settiement of disputes (contd)
Timing of arbitration
41.5 (1) The arbitrator shali have jurisdiction to hear the parties and commence the arbitration
of a dispute arising out of, under or in connection with the Contract at any time on a
question of whether:
(c) a certificate has been improperly withheld or was not issued in accordance with
the Conditions;
(d) the assessment of the Employer's loss of value under clause 7.2 is reasonable;
(e) the Contractors objection to a Variation referred to in ciause 13.1 (1 )(a) is reasonable;
and
(f) the Contractors consent to the Empioyer taking possession of a Relevant Part
under ciause 18.1 is unreasonably withheid,
(2) The hearing of disputes other than those listed in clause 415(1) shall not commence
until after Substantial Completion or alleged Substantial Completion of the whole of the
Works or determination or alleged determination of the Contractors employment or
abandonment of the Works unless the written consent of the parties to the hearing is
given after the dispute has arisen.
Arbitrators powers
41.6 The arbitrators powers include:
(a) rectifying the Contract to accurately reflect the true agreement made by the parties;
(C) assessing and awarding any sum which ought to have been the subject of or
included in a certificate; and
(d) opening up, reviewing and revising, without limitation, the giving, submitting or
issuing of any agreement, approval, assessment, authorisation, certificate,
confirmation, consent, decision, delegation, direction, dissent, determination,
endorsement, instruction, notice, notification, opinion, request, requirement,
statement, termination or Valuation.
87
41 Settiement of disputes (contd)
88
Appendix
Clause Clause
HK$
HK$
Fluctuations 38
(The Contract Sum will be
adjusted for fluctuations only if
it is expressly stated to be so
adjusted in the space below)
* Delete as applicable
89
SCHEDULE 1
FORM OF SURETY BOND
TO BE GIVEN BY THE CONTRACTOR TO THE EMPLOYER
........................................................................................... .. (HK$
for the payment of which sum the Contractor and the Surety bind themselves, their successors
and assigns, jointly and severaily by these presents.
Seated with our respective seals/Signed and sealed respectively* (Note 3) and dated this
...................... .. day of
made between the Employer of the one part and the Contractor of the other part] or
[By the letter of acceptance sent by the Architect on behalf of the Employer to the Contractor
tender submitted by the Contractor dated the .......................... .. day of ..................... .. 20 ......... ..]
. . . . . . . . . . . . . . . . . . . . . . - . . - - . u . - . . u . - . . . . . . . - . - . . . . . . . . . . . - . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . , , _ _ _ , , , _ _ _ , _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . , _ __
. . . u . . . u . - . u . - . . - . n - - . . - u - u - . . . - . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . , . . . . . . . . . , . . . _ , , . . . . . , , , , , . . , , , , , . , . , . ,,
(the Contract) the Contractor has agreed to develop the Architects design to the extent
specified in the Contract, construct, complete and maintain the Works (as therein defined)
until the issue of the Defects Rectification Certificate and to perform the Contract in conformance
with the provisions thereof.
and whereas pursuant to the terms of the Contract, the Contractor has agreed to obtain
the guarantee of a surety to be bound unto the Employer in the sum of Hong Kong Doilars
. . . . . - . . - . . - . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
. .... . .... ..... . ...... . .... . . ... . . ... ...... .-.... .- . .... . ... . .... ...................... . ..
and whereas at the request of and for the account of the Contractor, the Surety has agreed to
guarantee the Employer the due performance by the Contractor of its obligations under the
Contract.
1. The words and expressions in this Bond shall have the same meaning as in the Contract.
2. The Contractor shall duly perform and observe ali the terms, provisions, conditions,
obligations, stipulations and specification of the Contract according to the true purport intent
and meaning thereof and to the reasonable satisfaction of the Architect appointed by the
Employer in respect of the Works or if on default by the Contractor the Surety shall satisfy and
discharge the damages sustained by the Employer thereby as certified by the said Architect,
up to the amount of the above written Bond then his obligation shall be null and void but
otherwise his obiigation shall be and remain in full force and effect.
3. No alterations in terms of the Contract made by agreement between the Employer and
the Contractor or in the extent or nature of the development of the Architect's design to the
extent specified in the Contract, construction, completion and maintenance of the Works and
no allowance or extension of time given or to be given by the Employer under the Contract nor
any indulgence, forbearance, forgiveness, payment or concession to the Contractor in or in
respect of any matter or thing concerning the Contract on the part of the Employer or any
failure of supervision to prevent any fault by the Contractor shall in any way release the Surety
from any liability under the above written Bond.
4. This Bond shail be binding upon the Contractor and the Surety and their respective
successors and assigns jointly and severaily (provided that the Contractor and Surety may not
assign their respective rights and liabilities hereunder without the prior written consent of the
Employer) and shall inure to the benefits of the Employer and its successors and assigns.
5. This Bond shali remain valid for receipt of claims as aforesaid until the date of issue of
the Substantial Compietion Certificate/Defects Rectification Certificate* for the whole of the
Works pursuant to the Conditions of the Contract and any release of the Surety from the Bond
shalt be expressly subject to any claims made before this date.
6. This Bond shall be governed and construed in accordance with the laws of the Hong
Kong Special Administrative Region and the Surety hereby agrees to the nonexclusive
jurisdiction of the Courts of the Hong Kong Special Administrative Region.
* Delete as appropriate.
91
SIGNED, SEALED AND DELIVERED by the (Note 5)
\,._g,-._~ 4._;~ /
OR
OR
.............................................................. ..by
. . . . . . . . . . . . . . . . . . . . . . . . . . . . u . . . . . . . . . . . . . . - . . . . . . . . . . . . . . . . . . . . . . ..
.. ..... ..... ... .... . .- . .-.. . n... .... ... . ... . o-- u u .-.u y..o. . .... ...u
- s . - u - - . o - - - u - . - u . . . - . . . . - . . . . - . . . . . . . . . . . . . . . . . . . . . . . . . . . - . . . . . . .-
92
THE COMMON SEAL of the Surety was here ) (Note 6)
C
)
unto affixed in the presence of : )
)
.................................................................. .. )
(Signature of witness) )
)
.................................................................. .. )
)
.................................................................. .. )
(Name and occupation of witness) )
OR
Notes
(1) Delete content in < > where the Contractor is a limited company.
(2) Delete content in [ ] where the Contractor is a firm.
(3) *
Deiete as appropriate.
Delete Sealed with our respective seais in the case of a firm.
Deiete Signed and sealed respectively in the case of a iimited company.
(4) ** Delete
as appropriate, select according to whether the Contract is signed or not.
(5) For use in the case of a soie proprietor or where all partners of a firm execute.
(6) For use in the case of a limited company executing under its common seal.
(7) For use in the case of a firm or a limited company executing through an attorney.
93
SCHEDULE 2
FORM OF WARRANTY TO BE GIVEN BY
THE NOMINATED SUB-CONTRACTOR TO
THE EMPLOYER IN CONSIDERATION OF NOMINATION
. - . . - . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - - . . . . . . . . . . ..
(the Contractor) under the terms of the Contract between the Employer and the Contractor
(the Sub-Contract Works) which are intended to form part of the Main Contract Works under
a Nominated SubContract (the SubContract).
We ............................................................................................................................................. ..
(the Nominated SubContractor) warrant that in consideration of your instructing the Architect
to nominate us as the Nominated SubContractor for the SubContract Works:
(a) We will commence and complete the SubContract Works in accordance with the Sub-
Contract.
* detete as appropriate
94
(bl We will indemnify the Employer against all extra costs that may be incurred by non-
performance of the SubContract Works, by late completion of the SubContract Works
or by any breach of these warranties.
We have exercised and will exercise all reasonable skill and care in :-
(i) the design of the SubContract Works insofar as the SubContract Works have
been or will be designed by us; and
(ii) the selection of materials and goods for the SubContract Works insofar as such
materials and goods have been or will be selected by us.
(Ci) We will comply with and satisfy any performance specification or requirements insofar
as such performance specification or requirements are included or referred to in the
Tender Documents and/or our Tender as part of the description of the SubContract
Works.
(9) We will supply the Architect and or Contractor with such information as either may
reasonably require and at such times that the Contractor shall not be delayed in completing
the Main Contract Works by the Completion Date by our failure to supply such information
or by delay on our part, provided always that no liability shall arise in respect of such
delay on our part until we have accepted the Contractors order in respect of the Sub-
Contract Works.
(fl Nothing in our Tender shall operate to exclude or limit our liability for breach of the
warranties set out herein.
(9) We will obtain a surety bond in the form set out in Schedule 1 of the SubContract with
the requisite changes in wording to reflect that the bond is to be given by the Nominated
Sub-Contractor to the Employer instead of to the Contractor. This bond will be duly
executed under seal by an approved insurance company or bank, acknowledging that
the insurance company or the bank is jointly and severally bound with us to the Employer
tn the sum of 10% of the Sub-Contract Sum (rounded up the nearest thousand dollars)
against breach of the warranties hereof.
The words and expressions used in this Deed of Warranty shall have the same meaning as in
the Contract and the SubContract.
95
SIGNED, SEALED AND DELIVERED by the ) (Note 1)
)
SubContractor in the presence of : )
)
.................................................................. .. )
(Signature of witness) )
)
.................................................................. .. )
)
.................................................................. .. )
(Name and occupation of witness) )
OR
OR
.............................................................. ..by
Notes (1) For use in the case of a soieproprietor or where all partners of a firm execute.
(2) For use in the case of a limited company executing under its common seat.
(3) For use in the case of a firm or a limited company executing through an attorney.
96
SCHEDULES
FORM OF WARRANTY TO BE GIVEN BY
THE NOMINATED SUPPLIER TO
THE EMPLOYER IN CONSIDERATION OF NOMINATION
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . - . . . . . . . . . . . . . . . . . . . . - . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - - . - . . . . . . . - . . . . . . . - . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
. . . . . . . . . . . . . . . . . . . . . - - . - . - . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .-
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . o - - . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - - . . . a . . . . 4 . . . . a . v - . . - . . - . . . . . . . s . . . . . . . . . . . . . . . . ..
(the Contractor) under the terms of the Contract between the Employer and the Contractor
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . - - . - . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . - . . . . - - . . . . u - - . . . . . . . . . . . . . . . . .-
the Supply Contract materials, goods, equipment and other things (the Goods) which are
intended to be incorporated in the Main Contract Works under a Nominated Supply Contract
(the Supply Contract).
We ............................................................................................................................................. ..
(the Nominated Supplier) warrant that in consideration of your instructing the Architect to
nominate us as the Nominated Supplier for the Goods:
(a) We will commence and complete the delivery of the Goods and perform all the services
specified, in accordance with the terms of the Supply Contract.
*
deiete as appropriate
97
We will indemnify the Employer against all extra costs that may be incurred by non-
performance of the Supply Contract, by late delivery of the Goods or by any breach of
these warranties.
(C) We have exercised and will exercise all reasonable skill and care in :-
(1) the design of the Goods insofar as the Goods have been or will be designed by us;
and
(2) the selection of materiais, goods and equipment for the Supply Contract insofar as
such materials, goods and equipment have been or will be selected by us.
(Ci) We will comply with and satisfy any performance specification or requirements insofar
as such performance specification or requirements are included or referred to in the
Tender Documents and/or our Tender as part of the description of the Supply Contract.
(9) We will supply the Architect and/or Contractor with such information as either may
reasonably require and at such times that the Contractor shall not be delayed in completing
the Main Contract Works by the Completion Date by our faiiure to supply such information
or by delay on our part, provided always that no liabiiity shall arise in respect of such
deiay on our part until we have accepted the Contractors order in respect of the Supply
Contract.
Nothing in our Tender shall operate to exclude or limit our liability for breach of the
warranties set out herein.
(9) We wiil obtain a surety bond in the form set out in Schedule 1 of the Supply Contract with
the requisite changes in wording to reflect that the bond is to be given by the Nominated
Supplier to the Employer instead of to the Contractor. This bond will be duly executed
under seat by an approved insurance company or bank, acknowledging that the insurance .
company or the bank is iointiy and severally bound with us to the Employer in the sum of
10% of the Supply Contract Sum (rounded up the nearest thousand dollars) against
breach of the warranties hereof.
The words and expressions used in this Deed of Warranty shall have the same meaning as in
the Contract and the Supply Contract.
98
SIGNED, SEALED AND DELIVERED by the (Note 1)
. . . . . . . . . . . . . . . . . . . . . . . . . . - . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
. . . . . . . . . - . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . u . . . . . . . . .-
. . . . . . . . . . - . . . . . . . . . . . . . . . . . . . . . . . . . . . . - . u . . . . . . . . . . . . . . . . . . - - . . . . ..
OR
. . . . . . . . . . - . . . . . . . - . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - . . . - . . . - . -.
OR
.............................................................. ..by
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - . . . . . . . . . . . . . . . . . . . . - . . . . . . . ..
Notes (1) For use in the case of a sole proprietor or where ali partners of a rm execute.
(2) For use in the case of a Eimited company executing under its common seal.
(3) For use in the case of a firm or a limited company executing through an attorney.
99
Pubiished by
The Hong Kong Institute of Architects
The Hong Kong Institute of Construction Managers
The Hong Kong institute of Surveyors
Hong Kong SAR, China
The copyright of this publication is owned by The Hong Kong Institute of Architects, The Hong Kong institute of Construction
Managers and The Hong Kong Institute of Surveyors. The contents do not necessarily reflect the views or opinions of these