03 1741 COC-已解锁

D/MTRCL/NW/E&M/COC/001/A6
MTR CORPORATION LIMITED
CONDITIONS OF CONTRACT
FOR
ELECTRICAL AND MECHANICAL ENGINEERING WORKS
© 2020 MTR Corporation Limited.
All rights including, without limitation, intellectual property rights in and to this document and any
information contained in this document are proprietary and are solely and absolutely owned by MTR
Corporation Limited. The document and any information contained in the document are strictly
confidential and must not be used, disclosed, transmitted, copied, printed or otherwise
disseminated without the prior written consent of MTR Corporation Limited. Violators will be
subject to legal sanctions such as an injunction order and will be held liable for any damages,
losses, costs and expenses incurred by MTR Corporation Limited.
September 2020
CONTENTS
Table of Contents i - xv
Index to Conditions xvi - xxxiii
Conditions of Contract 1 - 130
Appendix A - Formal Agreement A1 - A3
Appendix B - Bond B1 - B6
Appendix C - Parent Company Guarantee C1 - C4
Appendix D - Joint and Several Guarantee D1 - D4
Appendix E - Special Conditions of Contract E1 - E2
Appendix F - Form of Sub-Contractor Warranty F1 - F8
Appendix G - MTRCL Mediation Rules G1 - G8

November 1992 Edition
September 2020
FOR
ELECTRICAL AND MECHANICAL
ENGINEERING WORKS
TABLE OF CONTENTS
Page
Clause Number
DEFINITIONS AND INTERPRETATION
1.1 Definitions 1
1.2 Singular and Plural 11
1.3 Masculine, Feminine and Neuter 11
1.4 Headings and Marginal Notes 11
1.5 Clause Numbers 11
1.6 Governing Law 11
1.6A Opting Out of the Contracts (Rights of Third Parties) Ordinance 11
1.7 Language 11
1.8 Subsidiaries 12
1.9 References to Sub-Contractor 12
ENGINEER AND ENGINEER'S REPRESENTATIVE
2.1 Duties and Powers of Engineer 12
2.2 Engineer to Act Impartially 13
2.3 Functions of Engineer's Representative 13
2.4 Appointment of Assistants 13
2.5 Delegation by Engineer 14
i September 2020
Page
Clause Number
2.7 Reference to Engineer or Engineer's Representative 14
2.8 Duration of Engineer's, Engineer's Delegate's 15

and Engineer's Representative's Powers
2.9 Approval, consent not to relieve Contractor 15

of Liability
AUTHORISED PERSON
3.1 Authorised Person 15
ASSIGNMENT AND SUB-LETTING
4.1 Assignment 16
5.1 Sub-Contracts 16
CONTRACT DOCUMENTS
6.1 Conditions of Contract to Prevail 17
6.2 Engineer to Explain Ambiguities 17
6.3 Documents Confidential 18
DOCUMENTS
7.1 Provision of Drawings and Documents 18
7.2 Further Drawings and Instructions 18
7.3 Notice by Contractor 18
7.4 Delay in Information 19
8.1 Documents (Other than Design Data) 19

Provided by the Contractor
ii September 2020
Page
Clause Number
8.3 Non-compliance of Documents 20

Provided by the Contractor
8.4 Approval of Documents by Engineer 20

not to absolve Contractor
8.5 Custody of Documents 20
8.6 Submissions in Electronic Form 20
9.1 Design Data 20
9.2 Submission of Design Data 20
9.4 Errors in Design Data 21
9.7 Delay in Approval of Design Data 21
GENERAL OBLIGATIONS AND WARRANTIES
10.1 Contractor's General Responsibilities 23
10.2 Contractor's Responsibility for Design 24
10.4 Contractor Responsible for Safety of Site 24
10.5 Works subject to Buildings Ordinance 24
10.6 Joint Ventures 25
11.1 Contractor's Warranties 25
CONTRACT FORMALITIES
12.1 Formal Agreement 26
13.1 Bond 26
13.2 Guarantee 26
iii September 2020

Page
Clause Number
INSPECTION OF SITE
14.1 Inspection of Site and Hydrological 27

and Sub-surface Conditions
PROGRAMMES
15.1 Programmes to be Furnished 28
15.2 Three Month Rolling Programme 29
15.3 Preliminary Installation Programme 28
15.4 Co-ordinated Installation Programme 28
15.5 Installation Programme 29
15.6 Schedule of Designs 29
15.7 Revision of Programmes 29
15.8 Approval of Programmes 30
15.10 Progress Reporting 30
15.11 Investigating Progress 30
METHODS OF MANUFACTURE, CONSTRUCTION OR

INSTALLATION
16.1 Methods of Manufacture, Construction or Installation 30
16.2 Engineer's Consent 31
16.3 Engineers Objections: Failure to Comply 31
16.4 Late Consent: Delay/Cost 31
16.5 Changes in Methods of Construction: Delay/Cost 32
16.6 Responsibility 32
17.1 Contractor's Superintendence 33
iv September 2020
Page
Clause Number
17.3 English Speaking Staff 33
18.1 Contractor's Employees 34
19.1 Setting-Out 35
19.2 Correction of Errors 35
19.3 Protection and Recording 35
20.1 Not Used 36
21.1 Safety and Security 36
21.2 Health and Safety Plan 36
21.3 Form and Content of Health and Safety Plan 36
21.4 Adherence to Health and Safety Plan 36
21.5 Safety Officer and Health and Safety Plan 37
21.6 Access, Assistance and Facilities 37
22.1 Care of Works 37
22.2 Where Part Handed Over 37
22.3 Outstanding Work 38
22.4 Making Good of Damage 38
22.5 Excepted Risks: Cost 38
22.6 Excepted Risks: Delay 38
23.1 Excepted Risks 38
INDEMNITIES
24.1 Damage to Persons and Property 39
24.5 Accidents or Injury to Workmen 40
v September 2020
Page
Clause Number
INSURANCES
25.1 Contractor's "All Risks" Insurance 40
25.2 Third Party Insurance 41
25.3 Contractor's Obligations 41
26.1 Contractor’s Equipment Insurance 41
26.2 Insurance against Accidents to Workmen 42
26.3 Professional Indemnity Insurance 42
26.4 Motor and Marine Insurance 42
26.5 Marine Cargo Insurance 43
26.6 Other Insurance 43
26.7 Indemnity to Employer 43
27.1 Sub-Contractor's Insurances 43
28.1 Production of Policies 44
29.1 Remedy on Failure to Insure 44
NOTICES TO BE SUBMITTED
30.1 Contractor to give Notice of Injury 44
31.1 Giving of Notices and Payment of Fees 44
31.3 Audited Accounts 44
31.4 Change in Control 45
32.1 Compliance with Enactments 45
33.1 Language of Notice 45
vi September 2020
Page
Clause Number
TRAFFIC AND SPECIAL LOADS
34.1 Interference with Traffic and Adjoining Properties 45
34.2 Nuisance and Disturbance 46
35.1 Extraordinary Traffic 46
35.2 Special Loads 46
35.3 Settlement of Extraordinary Traffic Claims 47
MISCELLANEOUS
36.1 Patent Rights 47
36.3 Royalties and Other Compensation Payments 48
37.1 Use of Contractor’s Equipment and Labour 49
38.1 Sufficiency of Tender, Adverse Physical 50

Conditions and Artificial Obstructions
38.2 Measures to be Taken 50
38.3 Delay and Extra Cost 51
38.4 Conditions Reasonably Foreseeable 51
39.1 Supply of Contractor’s Equipment 52
40.1 Liaison with Government, Public and 52

Private Bodies
41.1 Conditions on Site and Clearance 52

of Site on Completion
42.1 Arms and Ammunition 53
42.2 Explosives 53
43.1 Fossils 53
44.1 Publicity 54
vii September 2020

Page
Clause Number
45.1 Offering, Soliciting or Accepting Gratuities 54
45.4 Conflicts of Interest 54
46.1 Designated Contracts 55
46.2 Access for Others 55
46.3 Co-ordination 55
46.4 Designated Contractors 55
46.6 Designated and Other Contractors: Delay 56
46.7 Utility Companies: Delay 56
LABOUR
47.1 Engagement of Labour 57
47.3 Expatriate Personnel 57
48.1 Accommodation for Labour 57
49.1 Wages and Conditions for Labour 57
50.1 Labour Returns 58
51.1 Hours of Work, Night and General Holiday Work 58
52.1 Contractor to Preserve Peace 58
53.1 Restrictions on Alcoholic Liquor and Drugs 59
54.1 Festivals and Religious Customs 59
55.1 Epidemics 59
56.1 Passes 59
PLANT AND MATERIALS AND WORKMANSHIP
57.1 Quality and Manner of Execution 60
viii September 2020

Page
Clause Number
57.4 Quality Plan 60
57.5 Form and Content of Quality Plan 61
57.6 Adherence to Quality Plan 61
57.7 Quality Manager 61
57.8 Access 61
57.9 Cost of Samples 61
57.10 Cost of Tests 61
57.11 Cost of Tests not Provided for 61
57.12 Engineer's Determination where Tests not Provided for 62
57.13 Test Results 62
57.14 Inspection and Testing during Manufacture 62
57.15 Testing before Delivery 62
57.18 Delivery 63
58.1 Records of Levels and Dimensions 63
59.1 Access to Site and Places of Manufacture 63
60.1 Examination of Work before Covering Up 64
61.1 Removal of Improper Plant and Materials 64
61.2 Default of Contractor in Compliance 65
61.3 Failure to Disapprove not Final 65
62.1 Tests on Completion 65
62.3 Delay by Contractor 65
62.5 Notification of Results 66
62.6 Retesting 66
ix September 2020
Page
Clause Number
62.7 Consequences of Failure to Pass Tests on Completion 67
62.9 Use by the Employer 68
63.1 Marine Works 68
COMMENCEMENT TIME AND DELAY
64.1 Commencement of Works 69
65.2 Possession of Site 69
65.5 Delay to Contractor 70
65.9 Access to Site 71
66.1 Accommodation for the Works 71
67.1 Completion Obligations 72
67.2 Achievement of Milestones 72
68.1 Alteration of Time for Completion 72
69.1 Rate of Progress 74
69.3 Delay Recovery Measures 75
70.1 Damages 77
70.2 Cost of Breach 78
70.3 Liquidated Damages and Losses 78
70.4 Rate of Liquidated Damages 79
70.6 Set-Off 79
70.7 General Damages in Addition 80
70.11 Aggregate of all Damages 80
71.1 Compulsory Access to the Site for Subsequent Contractors 81
72.1 Suspension of Works 82
x September 2020
Page
Clause Number
73.1 Suspension Lasting more than 90 Days 83
CERTIFICATION ON COMPLETION
74.1 Certificate of Completion of Works 84
74.2 Completion of Sections and Occupied Parts 85
74.3 Completion of Other Parts of Works 85
74.4 Works subject to Buildings Ordinance 85
74.7 Handing-Over Certificate 87
74.8 Access Certificate 87
74.9 Reinstatement of Ground 88
DEFECTS LIABILITY
75.1 Execution of Outstanding Work 88
75.2 Execution of Work of Repair 89
75.5 Failure to Finish Work of Repair 89
75.8 Defects Correction Certificate 90
75.9 Unfulfilled Obligations 90
76.1 Temporary Reinstatement 90
77.1 Contractor to Search for Defects 91
78.1 Assignment of Warranties and Guarantees 92
VARIATIONS AND CHANGES
79.1 Variations 92
79.2 Ordered Variation or Change to be in writing 93
79.3 Contractor to Propose Estimates 94
xi September 2020
Page
Clause Number
79.4 Changes 94
79.9 Amending the Design Data 96
80.1 Valuation of Variations and Other Items of Work 96
80.2 Engineer to Fix Rates 97
81.1 Daywork 97
82.1 Notice of Claims 98
82.2 Contemporary Records 99
82.3 Interim Account 99
MEASUREMENT
83.1 Application 100
CERTIFICATION AND PAYMENT
84.1 Interim Payment 100
84.2 Amount to be Certified 101
84.4 Failure to Achieve Milestone 101
84.6 Revision to Interim Payment Schedule Percentages 102
84.7 Revision to Interim Payment and Milestone Schedules 103
85.1 Interim Statements 104
85.2 Contract Price not Subject to Variation 104
86.1 Certification for Interim Payment 105
87.1 Release of Retention Money 105
88.1 Application for Final Payment 106
88.2 Final Certificate 106
xii September 2020

Page
Clause Number
89.1 Correction and Withholding of Certificate 106
90.1 Payments of Certified Amounts 106
90.2 Failure to Pay by Employer 107
PROPERTY IN CONTRACTOR’S EQUIPMENT AND

PLANT AND MATERIALS
91.1 Agreement for Hire 107
91.2 Vesting of Contractor’s Equipment 107
91.3 Conditions of Hire of Contractor’s Equipment 107
91.4 Costs 108
91.5 Notification of Contractor’s Equipment Ownership 108
91.6 Irremovability of Contractor’s Equipment or Plant 108

and Materials
91.7 Revesting and Removal of Contractor’s Equipment 108
91.8 Disposal of Contractor’s Equipment 108
91.9 Liability for Loss of or Damage to

Contractor’s Equipment 109
91.10 Incorporation of Clause in Sub-Contracts 109
91.11 No Approval by Vesting 109
92.1 Vesting of Plant and Materials 109
92.3 Action by Contractor 110
92.4 Lien on Plant and Materials 111
92.5 Delivery to the Employer of Vested Plant and Materials 111
92.6 Incorporation in Sub-Contracts 111
xiii September 2020

Page
Clause Number
PROVISIONAL SUMS AND PRIME COST ITEMS
93.1 Amount of Provisional Sum 111
93.2 Use of Provisional Sum 112
93.3 Prime Cost Item 112
94.1 Production of Vouchers 113
SUB-CONTRACTORS
95.1 Nominated Sub-Contractors 113
96.1 Nominated Sub-Contractors: Details 113
97.1 Provisions Relevant to Nominated Sub-Contractors 114
97.8 Valuation of Work under Provisional 116

Sums and Prime Cost Items
98.1 Nominated Sub-Contractors: Termination 116
99.1 Delay in Connection with Nominated Sub-Contractors 118
REMEDIES AND POWERS
100.1 Urgent Repairs 118
101.1 Forfeiture 119
101.2 Assignment to Employer 120
101.3 Valuation at Date of Forfeiture 120
101.4 Payment after Forfeiture 121
101.6 Insolvency or Change in Control 121
101.7 Termination 122
101.8 Termination of Part 123
xiv September 2020

Page
Clause Number
102.1 Outbreak of War 123
102.2 Removal of Contractor’s Equipment on Termination 123
102.3 Payment if Contract Terminated 123
102.5 Payment in Event of Frustration 124
RESOLUTION OF DISPUTES
103.1 Settlement of Disputes: Arbitration 125
103.2 Notice of Dispute 125
103.5 Reference to Arbitration 125
103.6 Mediation 126
103.10 Interlocutory Relief 127
103.12 Limitation Period 128
103.15 Evidence 128
103.16 Engineer as Witness 128
NOTICES
104.1 Notices 129
DEFAULT OF EMPLOYER
105.1 Default of Employer 129
xv September 2020
FOR
ENGINEERING WORKS
INDEX TO CONDITIONS
CLAUSE PAGE
Abandonment of Contract
by Contractor 101.1 119
by Employer following suspension 73.1 83
Accelerated completion, see Delay Recovery measures
Access Certificate 74.8 87
definition 1.1.1 1
Access, Assistance and Facilities 21.6 37
" 57.8 61
for Others 46.2 55
for Engineer 59.1 63
for subsequent contractors 71.1 81
Accident or injury to workmen 24.5 40
Accommodation for the Works 66.1 71
Accounts, Contractor to submit audited accounts 31.3 44
Additional payment, Contractor's notice of
intention to claim 82.1 98
Adverse physical conditions and artificial obstructions 38.1 51
delay and extra cost (including reasonable profit) 38.3 51
measures to be taken on discovery of 38.2 50
reasonably foreseeable 38.4 51
Advertising on Site 44.1 54
Agent
Contractor's 17.2 33
responsible for safety 17.2 33
Aggregate of Damages 70.11 81
Agreement for Hire 91.1 107
Agreement, Formal 12.1 26
Alcoholic Liquor and Drugs 53.1 58
Alteration of Time for Completion 68.1 73
Ambiguities, Engineer to explain 6.2 17
Approval
definition 1.1.2 1
of programmes 15.8 30
Approved, definition 1.1.3 1
Approved Design Data, definition 1.1.4 1
xvi September 2020

Arbitration
Engineer as witness in 103.16 128
evidence at 103.15 128
interlocutory relief prior to 103.10 127
limitation period for purposes of 103.12 128
mediation prior to 103.6 126
reference to 103.5 125
Arbitrator
appointment of 103.5 125
powers of 103.14 128
Archaeological finds 43.1 53
Arms and ammunition 42.1 53
As-built drawings, Building Services Equipment
and ABWF Works 9.10 22
As-built record drawings 58.1 63
Assignment 4.1 16
Assignment of sub-contracts and supply agreements
to Employer on forfeiture 101.2 120
Assignment of warranties and guarantees to Employer 78.1 92
Assistants to Engineer's Representative 2.4 13
Audited Accounts 31.3 44
Authorised Person 3.1 15
definition 1.1.5 1
Avoidance of damage to highways and bridges 35.1 46
Basis and Sufficiency of Tender 38.1 50

Bond, submission of 13.1 26
Boreholes and exploratory excavation 20.1 36
Breach of Contract by Contractor 101.1 119
Breach of Nominated Sub-contract 98.1 117
Buildings Ordinance
work subject to 10.5 24
" " " 74.4 85
Care of Works 22.1 37

Certificate
Access 74.8 87
correction and withholding of 89.1 106
Defects Correction 75.8 90
final 88.2 106
handing-over 74.7 87
interim 86.1 105
time for payment 90.1 103
Certificate of Completion of Works 74.1 84
and reinstatement of ground 74.9 88
definition 1.1.6 1
payment of retention monies after 87.1 105
Sections and occupied parts 74.2 84
xvii September 2020

Certified amounts
failure to pay by Employer 90.2 107
payment of 90.1 106
Changes 79.4 94
definition 1.1.7 1
in Control of Contractor 31.4 45
in Control of Contractor, termination due to 101.6 121
to be in writing 79.2 99
Claims, notice of (additional payment) 82.1 98
Claims, particulars of (additional time) 68.3 74
Clause numbers, references to 1.5 11
Clearance of Site on completion 41.1 52
Commencement of Works 64.1 69
Compensation payments 36.3 48
Completion Obligations 67.1 72
cost of breach of 70.2 78
definition 1.1.8 1
delay in achieving 68.1 73
revision due to instruction for delay recovery 69.7 76
revision to 68.1 73
Completion of Works
alteration of time for 68.1 73
certificate of substantial (whole of the Works) 74.1 84
" " " (part or Section) 74.2 85
" " " (other parts) 74.3 85
vacation and clearance of Site upon 41.1 52
Completing part of the Works in lieu of determination
of Contractor's employment 101.8 123
Conditions of Contract
definition 1.1.9 2
to prevail 6.1 17
Conditions on Site and Clearance on Completion 41.1 52
Construction, methods of
Contractor to submit details of 16.1 30
Contractor's responsibility for 16.6 32
delay/cost resulting from changes in 16.5 32
mode and manner of, to be acceptable to Engineer 16.2 31
Contemporary Records 82.2 99
Contract
abandonment of by Contractor 101.1 119
abandonment of by Employer 73.1 83
definition 1.1.11 2
Formal Agreement 12.1 26
right of Employer to determine, due to war 102.1 123
Contract Price
definition 1.1.12 2
not subject to variation 85.2 104
Contract Sum, definition 1.1.13 2
xviii September 2020

Contractor
abandonment of Contract by 101.1 119
bankruptcy 101.6 121
change in control of 31.4 45
definition 1.1.14 2
Employer's remedy on failure to insure 29.1 44
Engineer's order, default in compliance with 61.2 65
general responsibilities of 10.1 23
indemnity to Employer
for accident or injury to workmen 24.5 40
for unreasonable noise disturbance and pollution 34.2 46
liable for liquidated damages for delay in completion 70.3 78
responsibility for design 10.2 24
responsibility unaffected by Engineer's
approval of Design Data 9.12 23
approval of documents 8.4 20
responsible for acts of sub-contractors 5.2 16
responsible for safety of all persons 21.1 36
responsible for safety of Site 10.4 24
to conform with any enactment 32.1 45
to conform with Buildings Ordinance 10.5 24
" " " " " 74.4 85
to co-operate with the Authorised Person and the
Registered Structural Engineer 10.5 24
to co-ordinate his own work with others 46.3 55
to execute the Works with due diligence 10.1 23
to give notices required by enactment 31.1 44
to keep records of levels and dimensions 58.1 63
to pay all royalties 36.3 48
to preserve peace 52.1 58
to provide audited accounts 31.3 44
to provide competent agent 17.2 33
to provide documents and drawings 8.1 19
to provide preliminary ABWF Programme 15.3 29
to provide superintendence of sub-contractors 5.4 16
to provide superintendence of the Works 17.1 33
to search for cause of defects 77.1 91
to take precautions against damage to highways 35.1 46
Contractor's agent 17.2 33
change in 17.4 34
Contractor's all risks Insurance 25.1 40
Contractor's Employees 18.1 34
accident or injury to, Contractor to indemnify
Employer against 24.1 39
English speaking 17.3 33
removal of 18.2 34
replacement of 18.3 35
xix September 2020

Contractor’s Equipment
clearance through Customs of 39.4 52
conditions of hire of 91.3 107
costs of 91.4 108
definition 1.1.15 2
disposal of 91.8 108
incorporation of Clause 91 in sub-contracts 91.10 108
irremovability of 91.6 108
liability for loss or damage to 91.9 109
no approval by vesting 91.11 109
ownership of 91.5 108
revesting and removal of 91.7 108
supply of 39.1 52
to conform with laws of Hong Kong 39.1 52
use of 37.1 49
vesting of 91.2 107
Contractor's notice 7.3 18
Contractor's superintendence 17.1 33
Contractor's warranties 11.1 25
Co-ordinated Installation Programme 15.4 29
definition 1.1.16 2
Co-ordination of work by Contractor 46.3 55
Copyright in drawings 36.1 47
" " " 36.4 48
Correction and withholding of certificates 89.1 106
Correction of errors in Works 19.2 35
Cost, definition 1.1.17 3
Cost Centre
definition 1.1.18 3
value of 84.1 100
Cross liability clause in third party insurance 25.2 41
Covering up, examination of work beforehand 60.1 64
making good of 22.4 38
to highways or bridges 35.1 46
to persons or property, exceptions 24.1 39
Damages for delay, maximum 70.11 81

Damages, general, for delay 70.7 80
Damages, liquidated, for delay 70.3 78
Date for commencement, definition 1.1.19 3
Day, definition 1.1.20 3
Daywork 81.1 97
Default of Contractor in carrying out
instructions for removal and proper
re-execution of Plant and Materials 61.2 65
Default of Employer 105.1 129
xx September 2020
Defects
Contractor to search for 77.1 91
Correction Certificate 75.8 90
Correction Certificate, definition 1.1.21 3
execution of work of repair 75.2 89
failure to finish work of repair 75.5 89
Liability Period 74.1 84
Liability Period, definition 1.1.22 3
Definitions [see word defined for individual references] 1.1 1
Delay
claims for 68.3 74
due to activities of Designated Contractor 46.6 55
due to adverse physical conditions 38.1 50
" " " " " 38.3 51
due to Engineer's delay in
issue of drawings 7.4 19
providing approval of Design Data 9.7 21
due to Engineer's failure to give consent to
proposed methods of construction 16.5 32
due to Excepted Risks 22.6 38
due to failure of utility company to comply with
the utility programme 46.7 56
due to failure to give timely possession of Site 65.5 70
due to obtaining Buildings Ordinance consent 74.4 85
due to providing facilities for other contractors 37.2 50
due to tests not provided for 57.12 62
due to use of Works by Employer before completion 74.6 86
due to Variation ordered 68.1(b) 72
in carrying out Tests on Completion 62.3 64
in completion, liquidated damages for 70.3 78
Delay recovery measures
definition 69.3 75
instruction of 69.7 76
price of 69.9 76
proposals for 69.3 74
Delegation of duties and authorities by Engineer 2.5 13
Design Approval Process 9.2 20
definition 1.1.23 4
Design Data 9.1 20
amendments to 79.9 96
definition 1.1.24 4
delaying Approval of 9.7 21
errors in 9.4 21
submission of 9.2 20
Designated Contracts 46.1 54
definition 1.1.25 4
xxi September 2020

Designated Contractors 46.4 55

and other Contractor: delay 46.6 55
compulsory access to Site of 71.1 81
definition 1.1.26 4
delay 46.5 55
identification of 46.1 54
Determination of Contractor's employment 101.1 119
Disputes
Engineer as witness 103.16 128
interlocutory relief 103.10 127
limitation period 103.12 128
mediation 103.6 126
Notice of 103.2 125
reference to arbitration 103.5 125
resolution of 103.1 125
Disturbance, noise and pollution 34.2 46
Documents
approval of by Engineer not to absolve Contractor 8.4 20
confidential 6.3 18
Contractor to keep copies on Site 8.5 20
mutually explanatory 6.2 17
non-compliance of 8.3 20
one copy to be kept on Site by Contractor 8.5 20
provision of 7.1 18
submission in electronic form 8.6 20
Drawings
as-built to be prepared by Contractor 9.10 22
definition 1.1.27 4
Drawings, specifications and instructions
approval of by Engineer not to absolve Contractor 8.4 20
as-built, records for 58.1 63
Contractor to keep copies on Site 8.5 20
delay in issue of 7.4 19
further, Engineer's power to issue 7.2 18
non-compliance of 8.3 20
to remain Employer's property 7.1 18
Electronic Form, submissions to be in if required 8.6 20

by Engineer
Employer
definition 1.1.28 5
to give assistance with Customs clearance 39.4 52
to give timely access to Site 65.1 69
Employer’s
Right to disclose 36.7 49
Enactments
compliance with 32.1 45
definition 1.1.29 4
xxii September 2020

Engineer
as witness in arbitration 103.16 128
assistants to 2.4 13
definition 1.1.30 4
delegation of powers of 2.5 14
duration of powers of 2.8 15
duties and powers of 2.1 12
reference to on dissatisfaction 2.7 14
to act impartially 2.2 13
to explain ambiguities in Contract 6.2 17
to fix rates for Variations not covered by Contract 80.2 97
to provide drawings and documents 7.1 18
to provide Preliminary Co-ordinated Installation 15.4 29
Programme
Engineer's
action on determination of Nominated Sub-contract 98.3 118
approval/refusal of Contractor's programmes 15.8 30
consent to Contractor's methods of construction 16.2 31
decision on dispute 2.8 15
effect of on Contractor and Employer 103.5 125
determination where tests not provided for 57.12 62
failure to disapprove Plant and Materials not final 61.3 65
power to correct or withhold certificates 89.1 106
Engineer's Representative
assistants to 2.4 13
definition 1.1.31 4
delegation to of Engineer's duties 2.5 14
duration of Powers of 2.8 15
functions of 2.3 13
reference to Engineer on dissatisfaction 2.7 14
reference to, on dissatisfaction with assistant 2.7 14
Epidemics 55.1 59
Errors
in setting out, correction of 19.2 35
Examination of Works before covering up 60.1 64
Excepted Risks 23.1 38
cost 22.5 38
delay 22.6 38
Execution of the Works
definition 1.1.32 5
investigation of progress 15.11 30
reporting of progress 15.10 30
Explosives 42.2 53
Extension of time for completion
assessment at due date of 68.1 73
Extraordinary traffic 35.1 46
settlement of claims 35.3 47
special loads 35.2 46
xxiii September 2020

Facilities for other contractors 37.1 49

delay and extra cost in providing 37.2 50
Failure by Contractor
to achieve Milestone 84.4 101
to carry out urgent repairs 100.1 118
to insure 29.1 44
to remove improper Plant and Materials 61.2 65
Failure by Employer to make payment 90.2 107
Failure by Engineer to disapprove Plant and Materials
not final 61.3 65
Failure to pass Tests on Completion, consequences of 62.7 67
Final account, Contractor to submit 88.1 106
Final certificate 88.2 106
Festivals 54.1 59
Forfeiture
assignment to Employer following 101.2 120
grounds for 101.1 119
method of 101.1 119
payment after 101.4 120
valuation of Works at time of 101.3 119
Form of Tender, definition 1.1.33 5
Formal Agreement 12.1 26
definition 1.1.34 5
Fossils 43.1 53
Frustration, payment in event of 102.5 124
Further drawings, specifications and instructions 7.2 18
General Damages 70.7 80

limitation of 70.11 81
General Holiday 51.1 57
definition 1.1.35 5
Governing law 1.6 11
Government
definition 1.1.36 5
liaison with 40.1 52
regulations of, concerning epidemics 55.1 59
Gratuities, offer, solicit or accept of 45.1 54
Guarantee, submission of 13.2 26
Handing-over Certificate 74.7 87

definition 1.1.37 5
Headings and marginal notes 1.4 11
Health and Safety plan 21.2 36
adherence to 21.4 36
definition 1.1.38 5
form and content of 21.3 36
xxiv September 2020

Highways and bridges, avoidance of damage to 35.1 46

Hong Kong
Customs 39.4 52
definition 1.1.39 6
dollars, payment in 90.3 107
governing law 1.6 11
labour 47.2 57
Hours of Work 51.1 57
Hydrological and Sub-surface Conditions 14.1 27
Impartiality of Engineer 2.2 13

Indemnity by Contractor 24.1 39
Indemnity by Employer 24.2 39
Indemnity to Employer, Contractor's insurance to provide 26.7 43
Injury to workmen 24.5 40
Insolvency, termination as a result of Contractor's 101.6 121
Inspection of Site by Contractor prior to
submitting tender 14.1 27
Installation Programme 15.5 29
definition 1.1.40 6
Insurance
against accidents to workmen 26.2 42
by Contractor 26 41
by Employer 25 40
Contractor to comply with conditions of Employer's 25.3 41
Contractor to provide evidence of 28.1 44
Contractor's all risks 25.1 40
Contractor's failure to effect, Employer's rights 29.1 44
Employer to approve terms of 28.1 44
of Contractor’s Equipment 26.1 41
of motor and marine 26.4 42
of Works 25.1 40
other 26.6 43
production of policies 28.1 44
professional indemnity 26.3 42
sub-contractor's 27.1 43
third party 25.2 41
Intellectual Property Rights
definition 1.1.41 6
infringement of 36.1 47
Interest on overdue payments 90.2 107
Interfacing Contractor
compulsory access to Site of 71.1 81
definition 1.1.42 6
Interference by Contractor with traffic and
adjoining property 34.1 45
Interim account for claims, submission of 82.3 99
xxv September 2020

Interim Payment, application for 85.1 104

Interim Payment Certificate
amount to be certified in 84.2 101
definition 1.1.43 6
Interim Payment and Milestone Schedules, revision to 84.7 103
Interim Payment Schedules
definition 1.1.44 7
revision to 84.6 102
" " 84.7 103
Interim Statements 85.1 104
Joint Ventures 10.6 25
Labour
accommodation for 48.1 57
engagement of 47.1 56
expatriate 47.3 57
hours of work 51.1 57
religious customs of 54.1 59
returns for 50.1 57
wages and conditions for 49.1 57
Language
English speaking staff 17.3 33
of Contract 1.7 11
of instructions 1.7 11
of notices required by Government regulations 33.1 45
Letter of Acceptance, definition 1.1.45 7
Letter of Clarification, definition 1.1.46 7
Liability for loss of or damage to Contractor’s
Equipment 91.9 109
Liquidated damages
for delay in completion 70.3 78
limitation of 70.11 81
not a penalty 70.3(d) 78
" " " 70.8 80
rate of 70.4 79
set-off against sums due 70.6 79
Manpower 51.3 58
Marine Works
provision of buoys and moorings 63.2 68
provision of shipkeepers 63.1 68
sunken 63.3 68
xxvi September 2020

Master Programme
definition 1.1.47 7
Measurement
application 83.1 99
Measures to be taken when adverse physical
conditions etc. met 38.2 50
Mediation 103.6 126
Methods of Manufacture, Construction or Installation 16.1 30
changes in 16.5 32
Engineer's consent not to relieve the Contractor
of responsibility 16.6 32
Engineer's consent to be obtained 16.2 31
failure to comply with Engineer's objections 16.3 31
late consent of the Engineer 16.4 31
to be submitted to Engineer 16.1 30
Milestone
achievement of 84.5 102
definition 1.1.48 7
failure to achieve 84.4 101
late achievement of 84.6 102
Milestone Percentage
definition 1.1.49 7
Milestone Schedules
definition 1.1.50 7
" " 84.6 102
Month, definition 1.1.51 8
Monthly Statements and Payments 85.1 104
Night, definition 1.1.52 8

Night-work 51.1 57
Noise Disturbance and Pollution 34.2 46
Nominated Sub-Contract, definition 1.1.53 8
Nominated Sub-Contractors 95.1 113
continuing obligations towards the Contractor 97.6 115
definition 1.1.54 8
delay in connection with 99.1 118
details 96.1 113
provisions relevant to 97.1 114
termination 98.1 117
valuation of work under Provisional Sums and
Prime Cost Items 97.8 116
Notice by Contractor
claiming additional payment or higher rate 80.3 97
claiming adverse physical conditions etc. 38.1 50
for further drawing or specification 7.3 18
of injury to workmen 30.1 44
xxvii September 2020

Notice of claims (general) 82.1 98

Notice of Dispute, definition 1.1.55 8
address for service 104.1 129
delivery of and payment of fees 31.1 44
language of 33.1 45
method of service 104.2 129
Notification by Contractor of results of Tests 62.5 66
Notification by Contractor of substantial completion 74.1 84
Nuisance and Disturbance 34.2 46
Obligations, unfulfilled, not to be released 75.9 90

Operating and maintenance manuals 9.11 23
Opting Out of the Contracts (Rights of Third Parties) Ordinance 1.6A 11
Ordered Variations to be notified in writing 79.2 93
Ordinances, Contractor to conform with 32.1 45
Outstanding work, execution of 75.1 88
Particulars, of claims for time 68.3 74

Passes
issue of and requirement for 56.1 59
procedure for use of 56.2 59
Patent rights 36.1 47
Payment
after determination 102.3 123
after forfeiture 101.4 121
Employer's failure to pay 90.2 107
in event of frustration 102.5 124
in Hong Kong dollars 90.3 107
of certified amounts 90.1 106
Permanent Works, definition 1.1.56 8
Permission for work at night or on General Holidays 51.1 57
Person, definition 1.1.57 8
Persons or property, Contractor responsible for 24.1 39
Plant and Materials
definition 1.1.58 8
failure to disapprove 2.5 (b) 14
inspect, examine and test 57.14 62
irremovability of 91.6 108
quality and manner of execution 57.1 60
notification of loss or damage 22.4 38
removal from Site 61.1 64
removal of 57.3 60
vesting of 92.1 109
Possession of Site 65.1 69
delay to Contractor in taking 65.5 70
Preliminary Co-ordinated Installation Programme 15.4 29
definition 1.1.59 8
xxviii September 2020

Premature use of Works by Employer 74.5 86

Pricing Document
definition 1.1.60 8
measurement 83.1 100
Prime Cost Items 93.3 112
definition 1.1.61 9
valuation of work under 97.8 116
Professional indemnity insurance 26.3 42
Profit, with respect to delay recovery measures 69.9 76
Programmes
Approval of 15.8 30
Co-ordinated Installation 15.4 29
Installation 15.5 29
Master 15.1 28
Preliminary Installation 15.3 29
Three Month Rolling 15.2 29
Progress reporting 15.10 30
Protection and recording of bench marks 19.3 35
Provisional Sums
amount of 93.1 111
definition 1.1.62 9
use of 93.2 112
valuation of work under 97.8 116
Provisions to apply as from outbreak of war 102.1 123
Publicity 44.1 54
Quality Manager 57.7 61

Quality of Plant and Materials and workmanship 57.1 60
Quality Plan 57.4 60
adherence to 57.6 61
definition 1.1.63 9
form and content of 57.5 61
Railway, definition 1.1.64 9

Railway under Construction, definition 1.1.65 9
Rate of progress, Contractor to take necessary steps 69.1 74
Rates of wages 49.1 57
Records
contemporary, for claims, to be kept by Contractor 82.2 98
of levels and dimensions 58.1 63
of setting out 19.3 35
receipts etc. for daywork, Contractor to provide 81.2 98
Rectification of defects 75.2 89
Rectification of loss or damage to Works 22.4 38
Reinstatement of ground
temporary 76.1 90
to be expressly certified complete 74.8 87
xxix September 2020

Religious Customs 54.1 59

Remedy of Employer for Contractor's failure
to carry out work of repair etc. 75.5 89
to insure 29.1 44
Removal
of Contractor's employees and any persons employed
on Site on Engineer's objection 18.2 34
of Contractor’s Equipment on termination 102.2 123
of improper Plant and Materials 61.1 64
Repairs
cost of execution of work of 75.3 89
execution of work of 75.2 89
failure to finish 75.5 89
urgent 100.1 118
Request for Mediation, definition 1.1.66 9
Resolution of disputes 103 125
Retention Money 86.1 105
definition 1.1.67 9
release of 87 105
Retesting 62.6 66
Returns of labour and equipment, Contractor to provide 50.1 57
Revision of programmes 15.7 29
Royal Hong Kong Police Force, access to Site of 52.1 58
Royalties 36.3 48
Safety
Contractor responsible for 21.1 36
Contractor's agent responsible for 17.2 33
Officer and Health and Safety Plan 21.5 37
Samples, provision and cost of 57.9 61
Secretary General of the Hong Kong
International Arbitration Centre 103.5 125
Section
certificate of substantial completion for 74.2 85
definition 1.1.68 9
Security of Site 21.1 36
Service of Notices 104 129
Setting-out of Works 19.1 35
Settlement of disputes 103 125
Singular & Plural 1.2 11
Site
access for Engineer to be provided by Contractor 59.1 63
articles etc. discovered on 43.1 53
definition 1.1.69 10
possession of 65.1 69
failure to give possession of 65.5 70
xxx September 2020

Special Conditions of Contract

amendment of provisions by 6.1 20
application to Works subject to admeasurement 83.1 100
Specification, definition 1.1.71 10
Start of work 64.1 69
Sub-contractor, references to 1.9 12
Sub-contracts 5.1 16
Subsidiaries 1.8 12
Sufficiency of Tender 38.1 50
Superintendence of work by Contractor 17.1 33
Supply of Contractor’s Equipment 39.1 52
Supporting documentation of Final Account 88.1 106
Suspension of Works 72.1 82
additional cost of 72.2 83
lasting more than 90 days 73.1 83
Temporary reinstatement 76.1 90

Temporary Works, definition 1.1.72 10
Termination of Contract (by Contractor) 105.1 129
Termination of Contract (by Employer)
at any time 101.7 122
by forfeiture 101.1 119
of part only 101.8 123
on outbreak of War 102.1 123
removal of Contractor’s Equipment 102.2 123
Test results 57.13 62
Tests
cost of 57.10 61
during manufacture 57.1 58
Tests not provided for
Cost 57.11 61
Engineer's determination 57.12 62
Tests on Completion 62.1 65
delay by Contractor 62.3 65
Third party insurance 25.2 41
Three Month Rolling Programme 15.2 29
Traffic
extraordinary 35.1 46
interference with adjoining properties 34.1 45
Transport of special loads 35.2 46
Uncovering and making openings 60.3 64

Unfulfilled obligations, not to be released 75.9 90
xxxi September 2020

Urgent repairs 100.1 118

Utility programme 46.7 56
failure of the utility company to comply with 46.7 56
Valuation
at date of forfeiture 101.3 120
of Variations and other items of work 80.1 96
of work under Provisional Sums and Prime Cost Items 97.8 116
Valuation Period, definition 1.1.75 10
Variations
by Engineer 79.1 92
ordered, to be in writing 79.2 93
valuation of 80.1 96
Vesting of Contractor’s Equipment 91.2 107
War
payment in event of frustration due to 102.5 124
provisions to apply as from outbreak of 102.1 123
Works to continue for 14 days after outbreak of 102.1 123
Warranties
assignment of 78.1 92
Withholding and correcting certificates 89.1 106
Work
examination of 60.1 64
execution of 75.2 89
of repair, cost of execution of 75.3 89
outstanding 22.3 38
execution of outstanding 75.1 88
remedy on Contractor's failure to carry out 75.5 89
to be subject to tests 57.1 60
to satisfy Engineer 57 60
unsatisfactory, removal and proper re-execution 57.3 60
Workmen
accident or injury to 24.5 40
removal of 18.2 34
Works
accommodation for 66.1 71
care of 22.1 37
commencement of 64.1 69
insurance of 25.1 40
Permanent, definition 1.1.56 8
setting-out of 19.1 35
xxxii September 2020

Works (cont’d)
subject to Buildings Ordinance 74.4 85
" " " " 10.5 24
suspension of 72 82
Temporary, definition 1.1.72 10
to continue for 14 days after outbreak of war 102.1 123
Year, definition 1.1.78 11
xxxiii September 2020

DEFINITIONS AND INTERPRETATION
Definitions 1.1 1.1.1 In the Contract (as hereinafter defined) the

following words and expressions shall
have the meanings hereby assigned to
them except where the context otherwise
requires:
1.1.2 "Access Certificate" means a certificate

entitled as such and issued by the
Engineer pursuant to Clause 74.8.
1.1.3 "Approval" means approval in writing by

the Engineer or the Engineer’s
Representative and includes written
confirmation by the Engineer of oral
approval.
1.1.4 "Approved" means approved in writing by

the Engineer or the Engineer’s
Representative and includes written
confirmation by the Engineer of oral
approval.
1.1.5 "Approved Design Data" means Design

Data which have received Approval.
1.1.6 "Authorised Person" means the authorised

person (if any) appointed by the Employer
in relation to the Works for the purposes of
the Buildings Ordinance.
1.1.7 "Certificate of Completion" means a

certificate of completion issued by the
Engineer in accordance with Clause 74.
1.1.8 "Change" means any change in or

modification to the Works or any part
thereof initiated by the Contractor (or by a
failure on his part to meet his obligations
as set out in Clause 79.4(b)) and ordered
by the Engineer in accordance with Clause
79.4, and may include: any addition,
omission, substitution, alteration or other
change in or to the Works or the part
thereof.
1.1.9 "Completion Obligation" means an

obligation of the Contractor to achieve
(a) substantial completion of the Works;
1 September 2020
(b) substantial completion of a Section;
(c) substantial completion of a specified

part of the Works; or
(d) a specified degree of completion for

any specified part of the Works
by the date or dates referred to in Clause

67 or the varied dates fixed in accordance
with Clause 68 or 69.
1.1.10 "Conditions of Contract" means these

conditions of contract.
1.1.11 "Contract" means the Conditions of

Contract, the Specification, the Drawings,
the Pricing Document, the Form of Tender,
the Letter of Clarification and the Letter of
Acceptance (including any documents
specified in the Letter of Clarification or in
the Letter of Acceptance as forming part of
the Contract), and the Formal Agreement
(if completed).
1.1.12 "Contract Price" means the Contract Sum,

subject to such additions thereto or
deductions therefrom as may from time to
time be made under the provisions
hereinafter contained.
1.1.13 "Contract Sum" means the sum named as

such in the Contract.
1.1.14 "Contractor" means the Person or Persons

appointed by the Employer to undertake
the Execution of the Works and includes
his or their personal representatives and
permitted assigns.
1.1.15 "Contractor's Equipment" means all

apparatus, machinery, vehicles, and other
things required for the Execution of the
Works and the remedying of any defect.
Contractor’s Equipment excludes
Temporary Works, Employer’s equipment
(if any), Plant and Material and all things
intended to form or forming part of the
Permanent Work.
1.1.16 "Co-ordinated Installation Programme"

means the programme based on the
Preliminary Co-ordinated Installation
2 September 2020
Programme and issued by the Engineer in

accordance with Clause 15.4, including
any amendments to that programme made
by the Engineer pursuant to Clause 15.7.
1.1.17 "Cost" includes overhead costs whether

on or off the Site except where the
contrary is expressly stated but excludes
profit.
1.1.18 "Cost Centre" means a group of activities

and/or items of work identified as such in
the Pricing Document.
1.1.19 "Date for Commencement" means the

date for commencement of the Works set
out in the Form of Tender.
1.1.20 "Day" means a calendar day according to

the Gregorian calendar and includes
General Holidays.
1.1.21 "Defects Correction Certificate" means the

certificate issued by the Engineer in
accordance with Clause 75.8.
1.1.22 "Defects Liability Period" means the period

stated in the appendix to Form of Tender
calculated from the date of substantial
completion of the Works or, as the case
may be, of the relevant part or Section of
the Works as certified by the Engineer in
accordance with Clause 74; provided that,
if any substantial portion of the Works or of
any such part or Section of the Works is
replaced, renewed or repaired pursuant to
Clause 75, the Defects Liability Period in
relation to such portion and in relation to
any other portion or portions of the Works
which cannot physically be used until the
completion of such replacement, renewal
or repair shall continue so as to run for the
said period stated in the appendix to the
Form of Tender, counting from the date of
Approval of such replacement, renewal or
repair.
1.1.23 "Design Approval Process" means the

process described in the Specification for
the obtaining by the Contractor of Approval
of Design Data submitted by him pursuant
to Clause 9.
3 September 2020
1.1.24 "Design Data" means all designs,

specifications, plans, general
arrangement, layout and detail drawings,
flow-sheets, graphs, sketches, levels,
setting-out dimensions, calculations,
schedules, certificates, computer data,
letters of approval, samples, patterns,
methods of manufacture and testing,
safety studies, models and any other
documents and items relating to the
design of those parts of the Works
identified in the Specification as parts
which are prepared or to be prepared by
the Contractor pursuant to the Contract.
1.1.25 "Designated Contract" means a contract

having the special relationship to the
Contract described in Clause 46.1.
1.1.26 "Designated Contractor" means the

contractor or contractors appointed by the
Employer from time to time in respect of a
Designated Contract.
1.1.27 "Drawings" means the drawings provided

by the Engineer referred to in the
Specification and any modification of such
drawings made by the Engineer and such
other drawings as may from time to time
be furnished by the Engineer to the
Contractor.
1.1.28 "Employer" means the MTR Corporation

Limited (香港鐵路有限公司) incorporated
under the former Companies Ordinance
(Cap. 32).
1.1.29 "Enactment" means any Ordinance,

proclamation, rule, regulation, order,
resolution, notice, rule of court, by-law or
other instrument having legislative effect in
Hong Kong and any technical memoranda
referenced in any Ordinance.
1.1.30 "Engineer" means such Person as may

from time to time be appointed by the
Employer to act as the Engineer for the
purposes of the Contract.
1.1.31 "Engineer's Representative" means a

person appointed by the Engineer to
4 September 2020
perform the functions set out in Clause 2.3

and whose appointment shall have been
notified in writing by the Engineer to the
Contractor.
1.1.32 "Execution of the Works" means the

carrying out and completing of: the design
which the Contractor is required by the
Contract to undertake; the manufacture,
supply, transportation, delivery to Site,
construction, erection, installation, setting
to work, commissioning, testing,
completion, operating and maintenance of
the Works in accordance with the
Contract; the correction of defects in the
Works; the preparation and/or delivery (as
appropriate) of all information, drawings
and manuals in respect of the Works
required by the Contract; and the
management of all such matters.
1.1.33 "Form of Tender" means the document

entitled as such which has been prepared
by the Employer and completed by the
Contractor and delivered by the Contractor
to the Employer as part of his tender for
the Works.
1.1.34 "Formal Agreement" means the

agreement entered into between the
Contractor and the Employer pursuant to
Clause 12.1.
1.1.35 "General Holiday" means every Sunday or

other Day which is a general holiday by
virtue of the General Holidays Ordinance
(Cap 149).
1.1.36 "Government" means the government

charged with the administration of Hong
Kong for the time being.
1.1.37 "Handing-Over Certificate" means a

certificate entitled as such and issued by
the Engineer pursuant to Clause 74.7.
1.1.38 "Health and Safety Plan" means the health

and safety plan, including all supplements
thereto, and any amended or varied
version thereof, submitted by the
Contractor in accordance with Clause 21.2
and consented to by the Engineer in
writing.
5 September 2020
1.1.39 "Hong Kong" means the land and sea

comprised within the boundary of the
administrative division of the Hong Kong
Special Administrative Region of the
People’s Republic of China specified in the
Second Schedule to the Interpretation and
General Clauses Ordinance (Cap 1).
1.1.40 "Installation Programme" means the latest

such programme referred to in Clause 15
which has received Approval.
1.1.41 “Intellectual Property Rights” means

patents, petty patents, utility model,
integrated circuit layout, rights to
inventions, copyright and related rights,
moral rights, trade marks and service
marks, trade names and domain names,
work method, process, system, rights in
get-up, rights to goodwill or to sue for
passing off or unfair competition, rights in
designs, rights in computer software,
database rights, rights in artistic works,
topography, rights in confidential
information (including know-how, new
inventions, designs, processes and trade
secrets) and any other intellectual
property rights of whatever nature and
wherever arising whether now known or
hereinafter created, in each case whether
registered or unregistered and including
all applications (or rights to apply) for,
and renewals or extensions of, such
rights and all similar or equivalent rights
or forms of protection which subsist or
will subsist now or in the future in any
part of the world.
1.1.42 "Interfacing Contractor" means any

contractor appointed by the Employer from
time to time other than a Designated
Contractor to do work for the carrying out
of which the Engineer shall in his absolute
discretion determine that access to the
Site is required and/or any sub-contractor
or sub-sub-contractor of any level of such
contractor.
1.1.43 “Interim Payment Certificate” means a

certificate issued by the Engineer pursuant
to Clause 86.1 indicating the amount of an
6 September 2020
interim payment due from the Employer to

the Contractor.
1.1.44 “Interim Payment Schedules” means the

schedules showing the percentages of the
value of each Cost Centre to be used in
each Valuation Period to calculate
amounts to be included in the amount
certified in Interim Payment Certificates in
the manner set out in Clause 84, and
“Interim Payment Schedule” means any
one such schedule.
1.1.45 “Letter of Acceptance” means the letter

from the Employer to the Contractor
accepting the Contractor’s tender as set
out in the Form of Tender subject to the
Letter of Clarification.
1.1.46 “Letter of Clarification” means the letter

from the Employer to the Contractor
clarifying or confirming the matters
agreed between the Employer and the
Contractor subsequent to the submission
by the Contractor of the Form of Tender.
1.1.47 “Master Programme” means the latest

such master programme referred to in
Clause 15 which has received Approval.
1.1.48 “Milestone” means an objective during the

Execution of the Works the date for the
achievement of which by the Contractor is
set out in a Milestone Schedule.
1.1.49 “Milestone Percentage” means, for each

Milestone, the percentage of the value of
a Cost Centre shown on the Interim
Payment Schedule for that Cost Centre
which, if there was no failure to achieve
that Milestone on its due date, would be
included in the amount certified in an
Interim Payment Certificate in respect of
the Valuation Period in which that
Milestone is due to be achieved.
1.1.50 “Milestone Schedules” means the

schedules included in the Contract
describing each Milestone and stipulating
the date by which each Milestone is to be
achieved, and “Milestone Schedule”
means any one such schedule.
7 September 2020
1.1.51 “Month” means calendar month according

to the Gregorian calendar.
1.1.52 “Night” means the period from 7 p.m. to 7

a.m.
1.1.53 “Nominated Sub-Contract” means a

sub-contract between the Contractor and a
Nominated Sub-Contractor.
1.1.54 “Nominated Sub-Contractor” means a

sub-contractor of the Contractor as
referred to in Clause 95.1. References in
the Contract to “sub-contractor” or
“sub-contractors” shall, unless the context
otherwise requires, include Nominated
Sub-Contractors.
1.1.55 “Notice of Dispute” means a notice in

writing served by one party on the other
stating the nature of a dispute which has
arisen between the parties and initiating
the procedure for the resolution of
disputes set out in Clause 103.
1.1.56 “Permanent Works” means the permanent

works to be provided, executed and
maintained in accordance with the
Contract.
1.1.57 “Person” means any natural or legal

person and includes any public body and
any body of persons, corporate or
unincorporated.
1.1.58 “Plant and Materials” means all machinery,

apparatus, materials, goods, including
spare parts and all other things of all kinds
intended to form or forming part of the
Permanent Works.
1.1.59 “Preliminary Co-ordinated Installation

Programme” means the programme
produced by the Engineer for the purpose
of consultation in accordance with Clause
15.4.
1.1.60 “Pricing Document” means the document

entitled as such and submitted by the
Contractor with the Form of Tender
showing the build-up of the Contractor’s
price for each Cost Centre.
8 September 2020
1.1.61 "Prime Cost Item" means an item in the

Contract which contains (either wholly or
in part) a sum referred to as Prime Cost
(PC) which will be used pursuant to
Clause 93.3 for the execution of work or
for the supply of Plant and Materials or
services for the Works.
1.1.62 "Provisional Sum" means a sum included

in the Contract and so designated in the
Pricing Document for the execution of
work or the supply of Plant and Materials
or services, which sum may be used, in
whole or in part, or not at all, at the
direction and discretion of the Engineer.
1.1.63 "Quality Plan" means the quality plan,

including all supplements thereto, and any
amended or varied version thereof,
submitted by the Contractor in accordance
with Clause 57.4 and consented to by the
Engineer in writing.
1.1.64 "Railway" means the railway owned or

operated by the Employer in Hong Kong
as defined for this purpose in the
Specification.
1.1.65 "Railway under Construction" means the

Railway under Construction as defined in
the Specification.
1.1.66 "Request for Mediation" means a request

made of one party by the other party in
writing requiring a dispute between them
to be referred to a mediator for resolution
in accordance with and subject to the
MTRCL Mediation Rules (of which a copy
appears at Appendix G to these
Conditions).
1.1.67 "Retention Money" means the aggregate

of the sums retained by the Employer from
interim payments made to the Contractor
pursuant to Clause 86.1.
1.1.68 "Section" means a part or parts of the

Works separately identified as a Section
in the Form of Tender.
9 September 2020
1.1.69 "Site" means the place or lands and

places provided by the Employer on,
under, over, in or through which the
Works are to be manufactured,
constructed and/or installed and any
other lands or places to be provided
during the course of the Works by the
Employer for the purposes of the
Contract or any part thereof.
1.1.70 “Special Conditions of Contract” means

the conditions set out in Appendix E
hereto.
1.1.71 "Specification" means the specification

(General, Materials and Workmanship and
Particular) referred to in the Contract on
the date of the Letter of Acceptance and
any further general or detailed
specifications as may from time to time be
furnished by the Engineer to the
Contractor.
1.1.72 "Temporary Works" means all temporary

works of every kind required in or about
the Execution of the Works.
1.1.73 "Tests on Completion" means the tests

described as such in the Specification.
1.1.74 "Three Month Rolling Programme" means

the latest three month rolling programme
submitted in accordance with Clause 15.2.
1.1.75 "Valuation Period" means each of the

successive Months commencing on the
first Day of the Month in which the Letter
of Acceptance is written (and for this
purpose the Letter of Acceptance shall be
taken to have been written on the date
which appears at the head of the Letter of
Acceptance).
1.1.76 "Variation" means any change in or

modification to the Works or any part
thereof which does not constitute a
Change and may include: any addition,
omission, substitution or alteration; any
change in quality, form, character, kind,
position, dimension, level or line; or any
change in the specified sequence,
method or timing of construction.
10 September 2020
1.1.77 "Works" means the Permanent Works

together with the Temporary Works.
1.1.78 "Year" means a year according to the
Gregorian calendar.
Singular and Plural 1.2 Words used in the Contract which import the singular
only also include the plural and vice-versa where the
context so admits.
Masculine, 1.3 Words used in the Contract which import one gender
Feminine and (whether masculine, feminine or neuter) shall be
Neuter taken to include any other gender where the context
so admits.
Headings and 1.4 The index, headings and marginal notes in the
Marginal Notes Conditions of Contract, the Form of Tender, the
Pricing Document and the Specification shall not be
part thereof or be taken into consideration in the
interpretation of the Contract.
Clause Numbers 1.5 Throughout the Contract, clause numbers quoted for
reference purposes use a number without a "point"
(e.g. Clause 69) when reference is being made to all
the clauses having that number before the "point"
(e.g. Clauses 69.1 to 69.11 inclusive). A reference
made using a "point" (e.g. Clause 69.4) refers to that
numbered clause (i.e. Clause 69.4) and any
sub-clauses of that numbered clause. A reference
made using two "points" (e.g. Clause 1.1.1) refers to
that sub-clause and any sub-sub-clauses of that
sub-clause.
Governing Law 1.6 The Contract shall be governed by and interpreted

according to the laws for the time being in force in
Hong Kong.
Opting Out of the 1.6A The parties to this Contract do not intend that any
Contracts (Rights term of this Contract shall be enforceable, by virtue
of Third Parties) of the Contracts (Rights of Third Parties) Ordinance,
Ordinance by any entity or person who is not a party to this
Contract.
Language 1.7 The language of the Form of Tender, the documents
submitted with the Form of Tender and the Contract
is the English language which language shall be the
ruling language in which the Contract shall be
construed and interpreted. All correspondence,
drawings, design data, test reports, suborders,
certificates, specifications and information shall be
entirely in the English language. All operating
instructions which are required to be fixed to the
Works, and all name and rating plates and
identification labels, shall be executed both in the
English and Chinese languages. Other written and
11 September 2020
printed matter for operation and maintenance which

is required to be executed in both English and
Chinese shall be so identified in the Specification.
The Contractor shall ensure that any sub-contract
entered into by him shall likewise be subject to the
requirements set out in this Clause 1.7 and shall
impose the same requirements in relation to any
sub-sub-contracts entered into by the sub-contractor.
Subsidiaries 1.8 Any provision of the Conditions of Contract which

requires consideration as to whether the Contractor
is a subsidiary of another corporate entity shall be
read in the light of this Clause 1.8. The term
"subsidiary" in any such provision shall have the
meaning given to that term in the Companies
Ordinance (Cap. 32, Section 2(4)); provided that,
where the Contractor is a corporate entity other than
a company incorporated under the laws of Hong
Kong, the Contractor shall be deemed to be a
subsidiary of another corporate entity where that
other corporate entity is in a position to exercise
substantially the same degree of control over the
Contractor as is envisaged by the definition of a
"subsidiary" contained in the Companies Ordinance
(Cap, 32, Section 2(4)).
References to 1.9 References in the Conditions of Contract to a

Sub-Contractor sub-contractor or sub-contractors of the Contractor
shall (where the context so admits) be construed as
including reference to a sub-contractor or
sub-contractors of any level.
ENGINEER AND ENGINEER'S REPRESENTATIVE
Duties and Powers 2.1 (a) The Engineer shall perform the functions and
of Engineer exercise the powers specified in or necessarily
to be implied from the Contract.
(b) The Engineer shall have no authority to amend

the terms of the Contract and the Contractor
shall not rely on any act or omission of the
Engineer so as to give rise to any waiver or
estoppel in respect of any obligation of the
Contractor under the Contract.
(c) The Engineer is required to obtain specific

approval of the Employer before performing his
functions or exercising his powers in respect of
the matters referred to in the Appendix to the
Form of Tender and he may, in respect of those
matters, act at the direction of the Employer.
Notwithstanding the requirement for the
Engineer to obtain such approval, the Contractor
12 September 2020
shall treat every performance of any function or

exercise of any power by the Engineer as having
been approved and shall not be bound to
enquire as to whether such approval has, in fact,
been given.
(d) Notwithstanding the provisions of Clause 2.1(c)

the Engineer shall in the case of an emergency
or in the interests of safety give such instructions
or directions as he deems necessary in respect
of the matters referred to in Clause 2.1(c) but
shall be required to notify the Employer as soon
as is reasonably possible.
(e) Subject to the provisions of Clauses 2.3, 2.4 and

2.5 the Contractor shall take instructions and
directions from the Engineer only.
(f) Instructions and directions of the Engineer shall

be given in writing save in cases of emergency
when instructions or directions may be given
orally and confirmed in writing.
Engineer to Act 2.2 The Engineer shall, except in connection with matters
Impartially requiring the specific approval of the Employer under
Clause 2.1(c), act impartially within the terms of the
Contract having regard to all the circumstances.
Functions of 2.3 The Engineer shall notify the Contractor in writing of

Engineer's the appointment of the Engineer's Representative
Representative and of any replacement from time to time. The
functions of the Engineer's Representative are to
watch, inspect and supervise the Execution of the
Works and to test and examine any materials or
workmanship to be used or provided by the
Contractor in connection with the Works or Sections
or parts thereof. The Engineer's Representative
shall also perform such of the Engineer's functions
as may be delegated to him under Clause 2.5.
Appointment of 2.4 The Engineer or the Engineer's Representative may

Assistants appoint any number of persons to assist the
Engineer's Representative in the exercise of his
functions under Clause 2.3. He shall notify to the
Contractor the names and functions of such persons.
The said assistants shall have no power to issue any
instructions to the Contractor save in so far as such
instructions may be necessary to enable them to
discharge their functions and to secure their
acceptance of Plant and Materials or workmanship
as being in accordance with the Specification and
Drawings or with Approved Design Data. Any
instructions given by any of them for those purposes
13 September 2020
shall be deemed to have been given by the

Engineer's Representative.
Delegation by 2.5 (a) The Engineer may from time to time in writing
Engineer authorise the Engineer's Representative or any
other person responsible to the Engineer to act
on behalf of the Engineer either generally in
respect of the Works or specifically in respect of
a Section or other part of the Works or
specifically in respect of particular clauses of
these Conditions of Contract. Any act of any
such person within the scope of his authority
shall for the purposes of the Contract constitute
an act of the Engineer and all references to the
"Engineer" in the Contract (apart from this
clause) shall be taken as references to such
person so far as they concern matters within
the scope of his authority. Notice in writing of
any such authorisation shall be given by the
Engineer to the Contractor. Such
authorisation shall continue in force until such
time as the Engineer shall notify the Contractor
in writing that the same is determined.
(b) Notwithstanding Clause 2.5(a) the failure of such

authorised person to disapprove any work or
Plant and Materials shall not prejudice the power
of the Engineer thereafter to disapprove such
work or Plant and Materials and to order the
pulling down, removal, replacement or repair
thereof.
2.6 The provisions of Clause 2.1 shall apply to the acts

within the scope of their respective appointments or
authorisations of the Engineer's Representative or
any assistant of the Engineer's Representative duly
appointed under Clause 2.4 or any person authorised
by the Engineer under Clause 2.5. Except as
expressly authorised under Clause 2.5 no such
person may order any work involving delay or any
extra payment by the Employer or order or make any
Variation or Change under Clause 79.
Reference to 2.7 If the Contractor should be dissatisfied by reason of

Engineer or any instruction of any assistant of the Engineer's
Engineer's Representative duly appointed under Clause 2.4 he
Representative shall be entitled to refer the matter to the Engineer's
Representative who shall thereupon confirm,
reverse or vary such instruction. Similarly if the
Contractor should be dissatisfied by reason of any
act of the Engineer's Representative or any other
delegate duly authorised by the Engineer under
14 September 2020
Clause 2.5 he shall be entitled to refer the matter to

the Engineer for his decision, which shall be given in
writing within 30 Days of such matter being referred
to the Engineer. Any decision as to the work or
methods to be adopted by the Contractor made by
the Engineer pursuant to this clause shall be final
and shall not be subject to challenge or review under
Clause 103. Any other decision made by the
Engineer pursuant to this clause (including any
decision as to the consequences in terms of time
and/or cost of a decision on work or methods) shall
be open to challenge and review under Clause 103,
provided that in the event of such challenge the
written decision of the Engineer given in accordance
with this clause shall for the purposes of Clause 103
be deemed to be the written decision of the Engineer
given under Clause 103.3(a), and to have been
issued by the Engineer on the Day after the relevant
Notice of Dispute was served on the Engineer
pursuant to Clause 103.2.
Duration of 2.8 The powers and authorities vested in the Engineer

Engineer's, and the duties of the delegates and the Engineer's
Engineer's Representative as delegated by the Engineer under
Delegate's and Clause 2.5 of the Contract shall continue and be in
Engineer's force until the granting by the Engineer of a Defects
Representative's Correction Certificate for the Works or the issue of the
Powers final certificate under Clause 88.2 whichever is the
later save that the Engineer's power and authority to
decide disputes pursuant to Clause 103 shall survive
indefinitely.
Approval, consent 2.9 No act or omission (including, without limitation, any

not to relieve giving or withholding of Approval, consent,
Contractor of disapproval, confirmation, agreement or the like, any
Liability withdrawal of an instruction, any examination of
Design Data and any checking of any setting out of
any line or level) on the part of the Engineer, the
Engineer's Representative, any assistant of the
Engineer's Representative duly appointed under
Clause 2.4 or any person authorised by the Engineer
under Clause 2.5 shall in any way relieve the
Contractor from any liability, responsibility, obligation
or duty under the Contract or (in the absence of an
express order given pursuant to Clause 79.1 or 79.4)
constitute a Variation or a Change.
AUTHORISED PERSON
Authorised Person 3.1 Where the Works or any Section or part thereof are
subject to the Buildings Ordinance the Engineer shall
notify the Contractor of the name of the Authorised
15 September 2020
Person appointed by the Employer. Such person

shall perform the duties required by the Buildings
Ordinance. Such functions, powers and authority as
are necessary to enable the Authorised Person to
comply with his statutory duties shall be deemed to be
vested in such persons for the purposes of ensuring
compliance with the requirements of the Buildings
Ordinance only.
ASSIGNMENT AND SUB-LETTING
Assignment 4.1 The Contractor shall not assign the Contract or any
part thereof or any benefit or interest therein or
thereunder (otherwise than by a charge in favour of
the Contractor's bankers on any monies due or to
become due under this Contract) without the prior
written consent of the Employer.
Sub-Contracts 5.1 The Contractor shall not sub-contract the whole of the
Works. Except where otherwise provided by the
Contract the Contractor shall not sub-contract part of
the Works without prior Approval (which shall not be
unreasonably withheld) and such Approval if given
shall not relieve the Contractor from any liability or
obligation under the Contract. The acquisition by the
Contractor of labour on a piecework basis shall be
deemed to be sub-contracting under the Contract.
5.2 The Contractor shall be responsible for the acts,

defaults, omissions and neglect of any
sub-contractor, his agents, servants or workmen, as
fully as if they were the acts, defaults, omissions or
neglect of the Contractor, his agents, servants or
workmen.
5.3 Should the Contractor wish to sub-contract any part of

the Works he shall give to the Engineer full particulars
of the parts of the Works to be sub-contracted, the
proposed terms and conditions for sub-contracting
and the particulars of the sub-contractor to be
employed so that the Engineer may complete his
investigation into the capacity and ability of the
sub-contractor in time to enable other arrangements
to be made by the Contractor to fulfil his programme
should the Engineer withhold Approval for
sub-contracting. The Contractor shall, on receiving
Approval, enter into a contract with the sub-contractor
and supply to the Engineer such copies of the terms
and conditions thereof as he may require.
5.4 The Contractor shall provide sufficient

superintendence whether on the Site or elsewhere to
16 September 2020
ensure that the work to be carried out by a

sub-contractor will comply with the requirements of
the Contract. The Contractor shall ensure that all
rights of the Employer and the Engineer are embodied
in the terms of any sub-contract.
5.5 Should a sub-contractor cause or in any way

contribute to a breach of the Contract, the Engineer
may revoke his Approval without prejudice to the
Contractor's liability to complete the Contract,
provided that no failure or delay on the part of the
Engineer in exercising such right shall operate as a
waiver thereof.
5.6 The Contractor shall at all times remain responsible

for all matters relating to the Execution of the Works,
but notwithstanding this the Engineer shall be entitled
to communicate with sub-contractors. Such
communication shall in no way detract from the
Contractor's overall responsibilities. Copies of any
correspondence between the Engineer and the
sub-contractor shall be forwarded to the Contractor
through whom all final decisions on matters of design
will be conveyed.
CONTRACT DOCUMENTS
Conditions of 6.1 Except if and to the extent otherwise amended by the

Contract to Prevail Letter of Clarification or, if applicable, the Special
Conditions of Contract, the provisions of the
Conditions of Contract shall prevail over those of any
other document forming part of the Contract.
Engineer to Explain 6.2 Subject to Clause 6.1 the documents forming the
Ambiguities Contract are to be taken as mutually explanatory of
one another, but in case of ambiguities or
discrepancies the Engineer shall explain and adjust
them and may thereupon issue to the Contractor
instructions so as to resolve the said ambiguities or
discrepancies or require the Contractor to put forward
proposals for Approval whereby they may be
resolved. Provided always that if in the opinion of
the Engineer compliance with any such instruction
shall cause the Contractor to suffer delay or incur
Cost, then:
(a) if such delay is greater than that which the

Contractor could reasonably have foreseen at
the date of the Letter of Clarification, the
Engineer shall take such delay into account in
determining any extension of time to which the
Contractor is entitled under Clause 68.1; and
17 September 2020
(b) if such Cost is greater than that which the

Contractor shall, subject to his complying with
the requirements of Clause 82, be paid such sum
in respect of such Cost as the Engineer
considers fair in all the circumstances and
certifies for payment to the Contractor.
Documents 6.3 No information provided by the Employer or the

Confidential Engineer relating to the Works (including, for the
avoidance of doubt, any information contained in, and
the terms of, the Contract) shall be divulged, used or
allowed to be used by the Contractor, and the
Contractor shall ensure that no sub-contractor or
other Person with access to the said information shall
divulge the same or use it, except for the purposes of
the Contract.
DOCUMENTS
Provision of 7.1 Drawings and the Specification prepared by or on

Drawings and behalf of the Engineer, and the Intellectual Property
Documents Rights and any other rights of a like nature therein or
in relation thereto, shall remain the sole property of
the Employer. The Contractor shall provide and
make at his own expense any additional copies of the
same which may be required by him. At the
completion of the Contract the Contractor shall
dispose of all Drawings, the Specification and contract
documents and copies provided under the Contract as
directed by the Engineer.
Further Drawings 7.2 The Engineer shall have full power and authority to
and Instructions supply to the Contractor from time to time during the
progress of the Works such further specifications,
drawings, design criteria and instructions as shall be
necessary for the purpose of the proper and
adequate Execution of the Works and the Contractor
shall carry out and be bound by the same. If such
further specifications, drawings, design criteria and
instructions require any change or modification to
any part of the Works which would, if ordered by the
Engineer pursuant to Clause 79.1, constitute a
Variation, such change or modification shall be
deemed to have been ordered pursuant to Clause
79.1.
Notice by 7.3 The Contractor shall give such notice in writing to the
Contractor Engineer as the Engineer considers reasonable of
any further design criteria, drawing, specification or
18 September 2020
instruction that the Contractor may require for the

Execution of the Works or otherwise under the
Contract provided however that the Engineer shall
not be bound to issue any such further design
criteria, drawing, specification or instruction which in
his opinion is not necessary or which it is the
responsibility of the Contractor to provide pursuant
to Clause 10.
Delay in 7.4 If by reason of any failure or inability of the Engineer

Information to issue at a time reasonable in all the circumstances
drawings, specifications or instructions requested by
the Contractor and considered necessary by the
Engineer in accordance with Clause 7.3 (and which
it is not the responsibility of the Contractor to provide
pursuant to Clause 10) the Contractor suffers delay
or incurs Cost, then:


Documents (Other 8.1 Subject to any express provision elsewhere in the

than Design Data) Contract, this Clause 8 shall apply to any submissions
Provided by the by the Contractor to the Engineer of drawings or other
Contractor documents relating to the Works except submissions
of Design Data. Submissions of Design Data shall
be subject to the provisions of Clause 9.
8.2 In the event of the Contractor being required to

provide documents other than Design Data in
connection with the Works he shall submit to the
Engineer for Approval all such documents which may
be required in connection with the Contract. Any
change or modification which the Engineer shall
require to be made in such documents in order to
achieve compliance with the Specification and/or the
Drawings and/or any other requirement of the
Contract shall be made by the Contractor without
delay and at no additional cost to the Employer.
19 September 2020
Non-compliance of 8.3 Should it be found at any time after Approval has

Documents been given by the Engineer to any documents
Provided by the submitted by the Contractor that the said documents
Contractor do not comply with the terms and conditions of the
Contract or that the details do not agree with any
Design Data, drawings or documents submitted
previously, such alterations and additions as may be
deemed necessary by the Engineer shall be made
therein by the Contractor and the work carried out
accordingly without delay and at no additional cost to
the Employer.
Approval of 8.4 Without prejudice to the generality of Clause 2.9, no

Documents by examination or Approval by the Engineer of any
Engineer not to document submitted by the Contractor relating to the
absolve Contractor Works nor any comment by the Engineer in regard
thereto, shall absolve the Contractor from any liability
imposed upon the Contractor by any provision of the
Contract.
Custody of 8.5 One copy of all documents relating to the Works

Documents shall be kept by the Contractor on the Site
reasonably close to the related part of the Works and
the same shall at all times be available for inspection
and use by the Engineer and the Engineer's
Representative and by other persons appointed by
the Engineer pursuant to Clause 2.4 or authorised
by the Engineer pursuant to Clause 2.5 and such
persons shall have the right at all reasonable times
to inspect at the premises of the Contractor or
sub-contractor all drawings of any part of the Works.
Submissions in 8.6 The Engineer shall have power to require that

Electronic Form submissions of documents to the Engineer pursuant
to this Clause 8 be made on computer or word
processing disk or in such other electronic form as the
Engineer may specify.
Design Data 9.1 The Design Data shall be prepared by the Contractor
in compliance with the Specification and the
Drawings.
Submission of 9.2 The Contractor shall prepare and submit for

Design Data Approval in accordance with the Design Approval
Process such Design Data as are called for in the
Specification, or as are required by the Contractor
for the Execution of the Works, or as the Engineer
may reasonably require for a full appreciation of the
design and methods of installation, operation and
maintenance proposed by the Contractor.
20 September 2020
9.3 Any change or modification to the Design Data

requested by the Engineer in the course of the
Design Approval Process in order to achieve
compliance with the Specification and/or the
Drawings and/or any other requirement of the
Contract shall be made without delay by the
Contractor at no additional cost to the Employer, and
the Design Data affected by the change or
modification shall be re-submitted to the Engineer for
Approval in accordance with the Design Approval
Process. As soon as Approval has been given, the
Contractor shall provide copies of all Approved
Design Data to the Engineer in accordance with the
Design Approval Process.
Errors in Design 9.4 The Contractor shall be responsible for, and shall
Data bear, any Costs arising out of any errors or omissions
in any of the Design Data whether the same have
been Approved or not, with the exception of any Costs
arising out of errors and/or omissions due to
inaccurate information issued to the Contractor in
writing by the Engineer. All such errors and/or
omissions shall be corrected by the Contractor without
delay and the revised Design Data re-submitted to the
Engineer for Approval.
9.5 The Employer shall have no liability for the Cost of

any work ordered, placed or commenced by the
Contractor on the basis of Design Data which have
not yet been Approved pursuant to the Design
Approval Process.
9.6 The Contractor shall notify the Engineer in writing of

any error and of any inconsistency in or between any
Design Data, or in or between any such Design Data
on the one hand and the Specification and/or any
Drawings and/or any design proposal made by the
Contractor and incorporated into the Contract and/or
any Design Data which have been Approved on the
other hand, and shall either, as the case may be,
(a) make appropriate corrections and re-submit the

affected Design Data for Approval in accordance
with the Design Approval Process; or
(b) if the appropriate correction requires a

modification to the Specification and/or Design
Data which have been Approved, request a
Change in accordance with Clause 79.5.
Delay in Approval 9.7 If the Engineer's Approval or any other acts to be

of Design Data performed by the Engineer pursuant to the Design
21 September 2020
Approval Process shall be unreasonably delayed and

if in consequence the Contractor suffers delay or
incurs Cost, then:


9.8 No Approval shall be deemed to have been

unreasonably delayed for the purpose of Clause 9.7
if during the course of the Design Approval Process it
becomes necessary to withdraw an Approval already
given and the withdrawal is consequent upon a
requirement of the Design Data which was unknown
to the Engineer at the time when such Approval was
given.
9.9 One copy of all Approved Design Data shall be kept

by the Contractor on the Site reasonably close to the
part of the Works to which such Design Data relate
and shall at all times be available for inspection and
use by the Engineer and the Engineer's
Representative and by other persons appointed by
the Engineer pursuant to Clause 2.4 or authorised by
the Engineer pursuant to Clause 2.5 and such
Persons shall have the right at all reasonable times to
inspect at the premises of the Contractor or of any
sub-contractor all Design Data relating to any part of
the Works.
9.10 The Contractor shall during the progress of the Works

prepare drawings showing those parts of the Works
which have been designed by the Contractor as-built.
The Contractor shall as required by the Engineer
provide at the Contractor's expense copies of such
as-built drawings to the Engineer. Design Data which
have been submitted and Approved under this Clause
9 shall be modified if necessary to correspond with the
Works as-built.
22 September 2020
9.11 Operating and maintenance manuals and associated

drawings and parts lists shall be provided by the
Contractor in accordance with the Specification.
9.12 Without prejudice to the generality of Clause 2.9, no

examination or Approval by the Engineer of any
Design Data, nor any comment by the Engineer with
regard thereto, shall absolve the Contractor from any
liability imposed upon the Contractor by any provision
of the Contract.
9.13 Notwithstanding any other provision of the Contract to

the contrary, the Contractor shall not under any
circumstances have or make any claim for additional
payment or for an extension of time or be relieved
from any liability or obligation under the Contract:
(a) where and to the extent that any suspension of

or delay or impediment to or adverse effect upon
the progress of the Works is the consequence of:
(i) any mistake, inaccuracy, discrepancy or

omission in or between any design
proposal made by the Contractor and
incorporated into the Contract on the one
hand and any Design Data or Approved
Design Data on the other hand; or
(ii) any discrepancy between the Specification

and/or any Drawings on the one hand and
any Design Data or Approved Design Data
on the other hand; or
(iii) any failure by the Contractor to prepare any

Design Data or submit the same to the
Engineer in due time; or
(b) by reason, directly or indirectly, of the review by

the Engineer of Design Data submitted by the
Contractor save only if and insofar as the
Engineer fails to respond to a submission of
Design Data in accordance with the Design
Approval Process.
GENERAL OBLIGATIONS AND WARRANTIES
Contractor's 10.1 The Contractor shall with due diligence:

General
Responsibilities (a) undertake the Execution of the Works in strict
accordance with the Contract and to the
satisfaction of the Engineer;
23 September 2020
(b) proceed at all times with the Execution of the

Works with expedition and without delay;
(c) subject to the provisions of the Contract

provide all labour, including the supervision
thereof, Contractor's Equipment, Plant and
Materials, Temporary Works and everything of
a temporary or permanent nature required in
and for the Execution of the Works so far as
specified in or may reasonably be inferred from
the Contract;
(d) comply with and adhere strictly to the Engineer's

instructions and directions on any matter,
whether mentioned in the Contract or not,
concerning the Works.
Contractor's 10.2 The Contractor shall with due diligence carry out and
Responsibility for complete as part of the Execution of the Works, the
Design design of those parts of the Works identified in the
Specification as parts which are to be designed by the
Contractor including, without limitation;
(a) the preparation and submission for Approval of

all Design Data required in order to complete the
design of the Works, and
(b) the selection of any specifications and standards

of materials, goods and workmanship to be used
in the Works,
10.3 The Contractor accepts entire responsibility for any

design proposal made by the Contractor and
incorporated into the Contract, for the Design Data
and the Approved Design Data and for any mistake,
inaccuracy, discrepancy or omission contained in any
of the same, provided that the Contractor shall not be
responsible for the suitability or accuracy of any
design requirements contained in the Specification
and/or the Drawings.
Contractor 10.4 The Contractor shall take full responsibility for the
Responsible for adequacy, stability and safety of all Site operations
Safety of Site and methods of manufacture, construction and
installation.
Works subject to 10.5 Where the Works or any Section or part thereof are
Buildings subject to the Buildings Ordinance the Contractor
Ordinance shall cooperate with the Authorised Person and do all
things which it is within his power to do in order to
ensure that the Execution of the Works is undertaken
in accordance with the Buildings Ordinance. Without
24 September 2020
prejudice to the generality of the foregoing these

obligations shall include:
(a) the provision of such information as may be

required concerning any matter for which the
Contractor is responsible under the Contract in
order to obtain consent to commence
manufacture, construction or installation;
(b) allowing all such inspections and tests to be

carried out as may be required for the purpose of
the Buildings Ordinance; and
(c) permitting such tests and inspections to be

carried out, completing such certificates, forms
and other applications, and doing all such other
things as may be required to enable an
occupation permit or temporary occupation
permit (as the case may be) in respect of the
Works and of each part or Section thereof to be
obtained expeditiously.
Joint Ventures 10.6 In the event that the Contractor comprises two or
more Persons acting in partnership, joint-venture or
otherwise, the liability of each such Person under this
Contract shall be joint and several.
Contractor's 11.1 In relation to those parts of the Works identified in the

Warranties Specification as parts which are to be designed by the
Contractor, the Contractor warrants to the Employer
that:
(a) the Contractor has exercised and will continue to

exercise in the design of the Works all the skill
and care to be expected of a professionally
qualified and competent designer experienced in
designing works of similar size, scope and
complexity as the Works;
(b) the Works will, when completed, comply in all

respects with the Contract and with the
Approved Design Data;
(c) the Works have been or will be designed and

installed using proven up-to-date good practice
and to the highest standards available at the
date of the Letter of Clarification which are
consistent with the Specification and the
Approved Design Data;
(d) no Plant and Materials which are deleterious or

otherwise not in accordance with good
25 September 2020
engineering practice have been or will be

specified or selected by the Contractor or any
one acting on his behalf and no Plant and
Materials which, after their specification or
selection by or on behalf of the Contractor but
before being incorporated into the Works,
become generally known to be deleterious or
otherwise not in accordance with good
engineering practice, will be incorporated into
the Works; and that
(e) the Design Data have taken or will take full

account of the effects of his intended methods of
manufacture, construction and installation, of his
Temporary Works and of the Contractor's
Equipment.
CONTRACT FORMALITIES
Formal Agreement 12.1 The Contractor shall if or when called upon to do so

enter into and execute a Formal Agreement as a
deed which will be prepared at the expense of the
Employer in the form appearing in Appendix A
hereto.
Bond 13.1 The Contractor shall within 30 Days of the date of the
Letter of Acceptance (and at the expense in all
respects of the Contractor) submit to the Employer a
bond in the sum stated in the Appendix to the Form of
Tender, in the form appearing in Appendix B hereto
and duly executed under seal by an insurance
company or bank approved in writing by the Employer
(the Employer shall not be required to give reasons for
not approving).
Guarantee 13.2 To the extent expressly required in the Letter of

Clarification, the Contractor shall within 30 Days of
the date of the Letter of Acceptance (and at the
expense in all respects of the Contractor) submit to
the Employer:
(a) a guarantee in the form appearing in Appendix C

hereto duly executed by a parent company or
holding company of the Contractor, the identity
of which shall have been submitted in writing to
the Employer prior to the date of the Letter of
Acceptance and approved by the Employer; or
(b) a guarantee in the form appearing in Appendix D

hereto duly executed on a joint and several basis
by the shareholders of the Contractor.
26 September 2020
13.3 For the purposes of Clauses 13.1 and 13.2:
(a) any document required to be executed by any

Person shall be deemed to have been so
executed if executed on behalf of such Person
by his lawfully appointed attorney; and
(b) the expressions "parent company" and "holding

company" shall be taken to include reference not
only to the immediate parent or holding company
of the Contractor but also to any parent or
holding company of such immediate parent or
holding company, and so on, up to and including
the ultimate parent or holding company of the
Contractor.
13.4 If the Contractor comprises two or more Persons

acting in partnership, joint-venture or otherwise, the
references in Clause 13.2 to the Contractor shall be
read as references to each such Person, and each
such Person shall submit a guarantee or guarantees
to the Employer accordingly.
13.5 No payments which may otherwise have become

due under the Contract shall be made by the
Employer to the Contractor until such time as the
bond referred to in Clause 13.1 and any guarantee
or guarantees to be submitted to the Employer
pursuant to Clause 13.2 shall have been submitted
to the Employer.
INSPECTION OF SITE
Inspection of Site 14.1 The Contractor shall be deemed to have inspected

and Hydrological and examined the Site and its surroundings and to
and Sub-surface have satisfied himself before signing the Form of
Conditions Tender as regards:
(a) existing roads or other means of communication

with and access to the Site;
(b) the nature of the ground;
(c) the nature of the hydraulic, hydrogeological and

hydrological conditions and of the sub-surface
and sub-soil (so far as is practicable and having
taken into account any information in connection
therewith which may have been provided by or
on behalf of the Employer);
27 September 2020
(d) the climatic conditions;
(e) the form and nature of the Site;
(f) the risk of injury or damage to property adjacent

to the Site or to the occupiers of such property;
(g) the nature of the materials (whether natural or

otherwise) to be removed;
(h) the nature of the work and Plant and Materials

necessary for the completion of the Works; and
(i) the accommodation he may require; and
(j) Employer's equipment installed at the Site;
and generally to have obtained his own information on

all matters influencing or affecting the performance of
his obligations under the Contract, the Contract Price
and/or the Execution of the Works.
14.2 The Employer shall have no liability to the Contractor

for any failure to provide any data of the kind referred
to in Clause 14.1 and the Contractor shall be
responsible for his own interpretation of all such data.
PROGRAMMES
Programmes to be 15.1 The Contractor shall by the date stated in the

Furnished Specification prepare and submit to the Engineer for
Approval a preliminary master programme for the
Execution of the Works. Such programme shall:
(a) be in the form required by the Specification;
(b) conform with the dates for achievement of

Completion Obligations set out in the Form of
Tender; and
(c) show the order of precedence and the periods

during which the Contractor proposes to carry
out the Works, the relationship between the
Works and the information to be provided, or the
works to be carried out, by Designated
Contractors and any other information required
to be shown by the Specification;
Upon Approval, the programme submitted as

aforesaid shall be the Master Programme.
28 September 2020
Three Month 15.2 The Contractor shall by the date stated in the
Rolling Programme Specification prepare and submit to the Engineer a
three month rolling programme in accordance with the
Specification. The Contractor shall at the end of each
two month period submit a new three month rolling
programme for the next three months prepared in
accordance with this Clause 15.2.
Preliminary 15.3 The Contractor shall by the date stated in the

Installation Specification prepare and submit to the Engineer a
Programme preliminary installation programme. The preliminary
installation programme shall be submitted in such
detail and form as may be called for in the
Specification and shall be compatible with the Master
Programme.
Co-ordinated 15.4 On receipt of the Contractor's preliminary installation

Installation programme and other similar programmes from other
Programme contractors engaged by the Employer on the Project
the Engineer will prepare a Preliminary Co-ordinated
Installation Programme which he shall issue to the
Contractor and to the said other contractors engaged
by the Employer. Following the issue of the
Preliminary Co-ordinated Installation Programme the
Engineer shall consult with the Contractor and the
said other contractors engaged by the Employer
severally and if necessary collectively at times and
places to be determined by the Engineer with the
object of establishing the Co-ordinated Installation
Programme.
Installation 15.5 The Co-ordinated Installation Programme will be

Programme issued to the Contractor who shall within 28 Days
amend his preliminary installation programme and
prepare and submit a revised installation programme
which shall be compatible with the Co-ordinated
Installation Programme to the Engineer for Approval.
Upon Approval, the revised installation programme
shall be the Installation Programme.
Schedule of 15.6 The Contractor shall in accordance with the

Designs Specification prepare and submit to the Engineer for
Approval a schedule showing the dates when he will
submit the Design Data which he is required to submit
under Clause 9.
Revision of 15.7 Should it appear to the Engineer at any time that the
Programmes progress of the Execution of the Works does not
conform with any programme Approved pursuant to
this Clause 15 in circumstances where the
Contractor is not entitled to an alteration of any
relevant Completion Obligation in accordance with
29 September 2020
Clause 68, the Engineer shall be entitled to require

the Contractor to produce and submit to the
Engineer for Approval a revised version of such
programme showing the modifications necessary to
ensure achievement of the Completion Obligations
by the dates referred to in Clause 67.1 or varied
dates fixed pursuant to Clause 68.1 or earlier dates
notified pursuant to Clause 68.2. The Engineer
shall be entitled to adjust (if necessary) the
Co-ordinated Installation Programme accordingly.
Approval of 15.8 Approval or disapproval by the Engineer of any

Programmes programme submitted under Clause 15 or of the
schedule submitted under Clause 15.6 shall neither
relieve the Contractor of any of his duties or
responsibilities under the Contract, nor constitute by
virtue of such Approval or disapproval a Variation or a
Change under Clause 79. A failure by the Contractor
to work in accordance with any Approved programme
shall be deemed to be a failure to proceed with the
Execution of the Works with due diligence and
expedition and without delay in breach of Clauses
10.1 and 64.1 unless the Contractor can prove the
contrary.
15.9 If Approval of any of the programmes required by this

Clause 15 to be submitted by the Contractor for
Approval is refused the same shall be revised and
resubmitted by the Contractor without delay, until
Approval has been obtained.
Progress Reporting 15.10 The Contractor shall report progress of the Execution
of the Works in the manner described in the
Specification, or in such other manner as may be
Approved. The Contractor shall attend progress
meetings at times and places to be determined by the
Engineer.
Investigating 15.11 The Engineer may investigate the progress of the

Progress Execution of the Works as he may consider
necessary and in exercising his powers, rights,
authorities and duties he may inform himself by
enquiry of such persons as he may consider
necessary.
METHODS OF MANUFACTURE, CONSTRUCTION

OR INSTALLATION
Methods of 16.1 The Contractor shall by the date stated in the

Manufacture, Specification prepare and submit to the Engineer a
Construction or written description of the methods of manufacture,
Installation construction or installation (including Temporary
30 September 2020
Works, Permanent Works, use of Contractor's

Equipment and commissioning and testing), which the
Contractor proposes to adopt in the Execution of the
Works. The submission of information, drawings and
documents pursuant to this Clause 16.1 shall not be
subject to the procedure set out in Clause 8.
Engineer's Consent 16.2 The Engineer shall inform the Contractor in writing
within a reasonable period after receipt of information
submitted in accordance with Clause 16.1 either:
(a) that the Contractor's proposed methods of

manufacture, construction or installation have
the consent of the Engineer;
(b) in what respects in the opinion of the Engineer

they fail to meet the requirements of the
Drawings or the Specification or will be
detrimental to the Works.
In the latter event the Contractor shall take such

steps or make such changes in the said methods as
may be necessary to meet the Engineer's
requirements and to obtain his consent. The
Contractor shall not change the methods of
manufacture, construction or installation which have
received the Engineer's consent without the further
consent in writing of the Engineer.
Engineer's 16.3 Should the Contractor fail to comply with any of the
Objections: Failure Engineer's objections or requirements under Clauses
to Comply 8.2, 9, 16.1 or 16.2 within a reasonable time, the
Engineer may suspend any relevant part of the Works
until such compliance without any compensation or
extension of time being permitted to the Contractor.
Late Consent: 16.4 If the Engineer's consent to the proposed methods of

Delay/Cost manufacture, construction or installation shall be
unreasonably delayed, or if the requirements of the
Engineer pursuant to Clause 16.2 could not
reasonably have been foreseen by the Contractor at
the date of the Letter of Clarification and if in
consequence of any of the aforesaid the Contractor
suffers delay or incurs Cost, then:

Contractor is entitled under Clause 68.1;
31 September 2020

Changes in 16.5 If it should subsequently be necessary in the opinion

Methods of of the Engineer to change a method of construction
Construction: or installation to which consent has previously been
Delay/Cost given, the Engineer may withdraw such consent and
the Contractor shall in such case take such steps as
may be necessary to obtain the Engineer's consent
to a changed method of construction or installation
and if in consequence of the aforesaid the
Contractor suffers delay or incurs Cost, then:


the requirements of Clause 82, be paid such
sum in respect of such Cost as the Engineer
Provided that the Contractor shall not be entitled to

any extension of time or to be paid any sum in respect
of the Cost incurred if the Engineer withdraws consent
to a method of construction or installation due to an
error or omission in the Contractor's original proposal
or as a result of some other default by the Contractor.
Responsibility 16.6 Without prejudice to the generality of Clause 2.9, the

giving of consent by the Engineer to the Contractor's
proposed methods of manufacture, construction or
installation in accordance with Clause 16.2 shall not
relieve the Contractor of any of his duties or
responsibilities under the Contract, nor shall any
withdrawal of consent by the Engineer constitute a
Variation or Change. Consent to such methods by
the Engineer shall not import anything other than
permission to proceed with use of the same, and shall
32 September 2020
not constitute any warranty as to the efficacy,

reliability or fitness of such methods or any assurance
that such methods will not harm the Permanent
Works.
Contractor's 17.1 The Contractor shall give or provide necessary

Superintendence superintendence during the Execution of the Works
whether carried out on the Site or elsewhere. Such
superintendence shall be given by such number of
persons having adequate knowledge of the
Specification and the Approved Design Data and of
the operations to be carried out (including the
methods and techniques required, the hazards likely
to be encountered and methods of preventing
accidents) as may be requisite for the satisfactory
Execution of the Works. Each part of the Works shall
have a sufficient number of such persons appropriate
to the amount and type of work being carried on at
that part of the Site or elsewhere from time to time.
17.2 The Contractor shall provide a competent agent or

representative authorised by the Contractor and
Approved (which Approval may at any time be
withdrawn without the Engineer stating any reason)
to give his whole time to the superintendence of the
Works. Such agent or representative shall be in full
charge of the Works and shall be empowered to
receive and shall receive on behalf of the Contractor
directions and instructions from the Engineer, the
Engineer's Representative and any delegate
authorised under Clause 2.5 and shall be
responsible for the safety of all operations. The
Contractor shall similarly provide a competent and
authorised sub-agent or sub-representative on each
part of the Site who shall have been Approved
(which Approval may at any time be withdrawn
without the Engineer stating any reason) and who
shall give his whole time to the superintendence of
the same. Such sub-agents or sub-representatives
shall be deemed to be authorised to receive
instructions from the Engineer, the Engineer's
Representative or other delegates on behalf of the
Contractor's agent or representative.
English Speaking 17.3 The Contractor shall provide competent and

Staff authorised persons on all parts of the Site or
elsewhere, who shall be sufficiently fluent in English
to communicate easily in English in relation to the
technical aspects of the work. Such persons shall
be Approved and must be present at any part of the
Works where work is in progress, but need not be
the person in charge of a Section of the Works under
33 September 2020
Clause 17.2. The English speaking person at any

part of the Works shall also speak the language of
the Contractor's staff on that part, and if more than
one language is spoken, then the English speaking
person shall have sufficient knowledge of technical
vocabulary in those languages to allow him to
communicate without difficulty with all of the
Contractor's staff in relation to all technical aspects
of the Works.
17.4 Should the Contractor make or intend to make any

change in persons provided pursuant to Clauses 17.1,
17.2 and 17.3 he shall immediately notify the
Engineer of such change or intended change and
obtain his Approval.
Contractor's 18.1 The Contractor shall provide and employ in

Employees connection with the Execution of the Works:
(a) only such technical assistants as are skilled and

experienced in their respective occupations and
such sub-agents, foremen and leading hands as
are competent to give proper supervision to the
work they are required to supervise; and
(b) such skilled, semi-skilled and unskilled labour as

is necessary for the proper and timely Execution
of the Works.
18.2 The Engineer may without stating any reason object

to and require the Contractor to remove from the Site
or from involvement in the Execution of the Works, or
(as the case may be) to require any sub-contractor to
remove from the Site or from involvement in the
Execution of the Works:
(a) any person employed by the Contractor or by

any sub-contractor in or about the Execution of
the Works who, in the opinion of the Engineer,
misconducts himself or is incompetent or
negligent in the performance of his duties or fails
to conform with any particular provisions with
regard to safety which may be set out in the
Specification or elsewhere in the Contract or
ordered by the Engineer or persists in any
conduct which is prejudicial to safety or health;
and
(b) any agent, sub-agent, representative or

sub-representative of the Contractor provided
pursuant to Clause 17.2 for whom Approval
shall not have been given or shall have been
34 September 2020
withdrawn
and any such person shall not be again employed

upon the Works without the written permission of the
Engineer.
18.3 Any person removed from the Site under Clause

18.2 shall be replaced as soon as possible by a
competent substitute.
Setting-Out 19.1 The Contractor shall be responsible for the true and
proper setting-out of the Works in relation to original
points, lines and levels of reference given by the
Engineer in writing or shown on any Drawings or in
the Approved Design Data and for the correctness of
the positions, levels, dimensions and alignment of all
parts of the Works and for the provision of all
necessary instruments, appliances and labour in
connection therewith. No check of any setting-out
or any line or level performed by the Engineer shall
in any way relieve the Contractor of his responsibility
for the correctness thereof.
Correction of 19.2 If at any time during the progress of the Works any
Errors error shall appear or arise in the position, levels,
dimensions or alignment of any part of the Works the
Contractor shall draw the attention of the Engineer to
the same and on being required so to do the
Contractor shall rectify such error to the satisfaction
of the Engineer. Any Cost involved in rectifying the
error shall be borne by the Contractor. Provided
always that if such error arises from incorrect data
supplied by the Engineer and if the rectification of
such error pursuant to this clause, in the opinion of
the Engineer, causes the Contractor to suffer delay
or to incur Cost, then:
(a) the Engineer shall take such delay into account

in determining any extension of time to which the
(b) the Contractor shall if he complies with Clause

82 be paid such sum in respect of the Cost so
incurred as the Engineer considers fair in all the
circumstances and certifies for payment to the
Contractor.
Protection and 19.3 The Contractor shall carefully protect, preserve and
Recording replace when necessary all control stations, bench
marks, sight rails, pegs and other things used in
setting out the Works and shall compile and maintain
records of all control stations, bench marks and
35 September 2020
setting out data. Should the construction of the

Works require the removal of any control stations,
bench marks, setting out points or other things used
in the setting out of the Works, the Contractor shall
provide permanent substitutes and correlate them to
the control stations, bench marks and other things
and shall obtain the Engineer's Approval before
those used for setting out and their substitutes are
removed destroyed or damaged.
20.1 Not Used
Safety and Security 21.1 The Contractor shall throughout the progress of the
Works have full regard for the safety of all persons
entitled to be upon the Site and shall keep the Site
and the Works in an orderly state conducive to the
avoidance of danger to such persons and he shall, in
connection with the Works, without limiting the
generality of the foregoing, provide and maintain at
his own Cost all lights, guards, fencing, warning signs,
watching and any other appropriate safety and
security measures when and where necessary or
required by the Engineer or by any competent
statutory or other authority for the protection of the
Works or for the safety and convenience of the public
or others.
Health and Safety 21.2 The Contractor shall by the date stated in the
Plan Specification submit to the Engineer for his consent
a health and safety plan, which shall set out details
of the health and safety measures to be
implemented by the Contractor in order to comply
with his obligations under Clause 21.1 and with all
relevant Enactments applicable from time to time.
The submission of such health and safety plan, and
all submissions to the Engineer of supplemental
parts of such health and safety plan shall be made in
accordance with the Specification, but shall not
otherwise be subject to the procedure set out in
Clause 8. All submissions of supplemental parts of
such health and safety plan shall be made not less
than 30 Days before commencement of any work
which is the subject of any such submission.
Form and Content 21.3 The form and content of the initial submission of the
of Health and said health and safety plan, and of all supplemental
Safety Plan parts thereof, shall be in accordance with the
requirements prescribed in the Specification.
Adherence to 21.4 Upon the Engineer confirming to the Contractor in

Health and Safety writing his consent to the said health and safety plan it
Plan shall be known as "the Health and Safety Plan", and
36 September 2020
the Contractor shall adhere to the principles and

procedures contained in the Health and Safety Plan
and in any amendments, modifications or additions
thereto to which the Engineer shall subsequently
consent in writing. Any such amendments,
modifications or additions shall themselves, once the
Engineer's written consent to them has been given,
form part of the Health and Safety Plan. The giving
by the Engineer of consent to the Health and Safety
Plan shall not relieve the Contractor from any
obligation under the Contract or imposed by any
relevant Enactment applicable from time to time.
Safety Officer and 21.5 The Contractor shall, in accordance with the
Health and Safety requirements set out in the Specification, appoint a
Plan suitably qualified and experienced person to act as
safety officer. The safety officer shall monitor,
report to and advise the Contractor's management
on the application of the Health and Safety Plan.
The safety officer shall manage and coordinate the
activities of his supporting safety staff who shall be
appointed in accordance with the Specification.
Access, Assistance 21.6 The Contractor shall provide all necessary access,
and Facilities assistance and facilities both on and off the Site to
enable the Engineer to verify that the Health and
Safety Plan is being properly and fully implemented
and/or to conduct safety audits.
Care of Works 22.1 Subject to Clause 22.2 and Clause 74.7, from the
Date for Commencement until the date of issue of the
Certificate of Completion for the whole of the Works,
the Contractor shall take full responsibility for the care
of the Works which shall include the responsibility for
all Plant and Materials, Contractor's Equipment,
temporary buildings, goods and materials and things
whatsoever on the Site or delivered to or placed on
the Site in connection with or for the purposes of the
Works.
Where Part Handed 22.2 In the event that the Engineer issues a Certificate of
Over Completion or a Handing Over Certificate in respect of
any Section or part of the Works before a Certificate
of Completion is issued in respect of the whole of the
Works, the Contractor's responsibility defined in
Clause 22.1 shall cease in respect of that Section or
part of the Works upon the issue by the Engineer of
such Certificate of Completion or Handing Over
Certificate. In the event that the Engineer issues an
Access Certificate in respect of any part of the Works
in accordance with Clause 74.8 the Contractor's
responsibility for preventing the causing by any party
37 September 2020
other than the Contractor of any loss of or damage to

that part of the Works shall thereupon cease and be
transferred to the Employer, provided however that
the Contractor's obligation to maintain that part of the
Works in good order and to maintain any Plant and
Materials in that part of the Works in good working
order until the issue of a Certificate of Completion in
respect thereof shall continue unchanged.
Outstanding Work 22.3 Notwithstanding the provisions of Clauses 22.1 and

22.2 the Contractor shall take full responsibility for the
care of any outstanding work which he shall have
undertaken to finish during the Defects Liability Period
until such outstanding work is complete. The
Contractor shall also be liable for any damage to the
Works occasioned by him in the course of any
operation carried out by him for the purpose of
complying with his obligations under Clause 75 and
any undertaking given pursuant to Clause 74.
Making Good of 22.4 Subject to Clause 22.2, in the event that any damage,
Damage loss or injury shall happen to the Works or any part
thereof or to such Plant and Materials, Contractor's
Equipment, temporary buildings, goods or materials
or things whatsoever as are referred to in Clause 22.1
from any cause whatsoever (save and except the
Excepted Risks set out in Clause 23), the Contractor
shall at his own Cost and with all possible speed
make good any such damage, loss or injury to the
satisfaction of the Engineer and shall notwithstanding
such damage, loss or injury proceed with the
Execution of the Works in all respects in accordance
with the Contract and the Engineer's instructions.
Excepted Risks: 22.5 In the event of any such damage, loss or injury
Cost happening by reason of any of the Excepted Risks, or
in circumstances where the risk of such damage, loss
or injury happening no longer lies with the Contractor
by virtue of Clause 22.2, the Contractor shall, if and to
the extent required by the Engineer, repair and make
good the same as aforesaid at the Cost of the
Employer.
Excepted Risks: 22.6 If in consequence of any Excepted Risk the

Delay Contractor incurs delay the Engineer shall take such
delay into account in determining any extension of
time to which the Contractor is entitled under Clause
68.1.
Excepted Risks 23.1 The "Excepted Risks" are war, hostilities (whether
war be declared or not), invasion, act of foreign
enemies, terrorism, rebellion, revolution, insurrection
38 September 2020
or military or usurped power, civil war or (otherwise

than among the Contractor's or sub-contractors' own
employees) riots, ionizing radiations 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 component thereof, all such
events occurring in Hong Kong. Additionally,
Excepted Risks shall include a cause solely due to
the use or occupation by the Employer of any portion
of the Works in respect of which a Certificate of
Completion or a Handing-Over Certificate has been
issued or to a fault, defect, error or omission in the
design of the Permanent Works (other than a design
provided by the Contractor).
INDEMNITIES
Damage to Persons 24.1 The Contractor shall, save insofar as the Contract
and Property provides otherwise, indemnify the Employer against
any loss or expense sustained by the Employer and
against all losses and claims in respect of death or
injuries or damage to any person or property
whatsoever which may arise out of or in consequence
of the Execution of the Works and against all claims,
proceedings, damages, Costs, charges and expenses
whatsoever in respect of or in relation thereto, except
any compensation or damages for or with respect to:
(a) the permanent use or occupation of land by the

Works or any part thereof;
(b) the right of the Employer to execute the Works or

any part thereof on, over, under, in or through
any land;
(c) death, injuries or damage to persons or property

resulting from any neglect of the Employer, his
agents, servants or other contractors, not being
employed by the Contractor, or for or in respect
of any claims, proceedings, damages, Costs,
charges and expenses in respect thereof or in
relation thereto.
24.2 The Employer shall indemnify the Contractor against

all claims, proceedings, damages, Costs, charges and
expenses in respect of the matters referred to in the
exception to Clause 24.1.
24.3 The Contractor's liability to indemnify the Employer

under Clause 24.1 shall be reduced in proportion to
39 September 2020
the extent to which the act or neglect of the Employer,

the Engineer or any other Person employed by the
Employer in connection with the Works, their
respective agents, employees or representatives, may
have contributed to the said death, injuries or
damage.
24.4 The Employer's liability to indemnify the Contractor

under Clause 24.2 shall be reduced in proportion to
the extent to which the act or neglect of the Contractor
or his sub-contractors, servants, agents or
representatives may have contributed to the matters
referred to in the exception to Clause 24.1.
Accidents or Injury 24.5 The Employer shall not be liable for or in respect of
to Workmen any damages or compensation payable at law in
respect or in consequence of any accident, illness or
injury to any workman or other person in the
employment of the Contractor or of his
sub-contractors or suppliers arising out of and in the
course of his employment and the Contractor shall
throughout the period of the Contract indemnify and
keep indemnified the Employer against all such
damages and compensation and against all claims
demands proceedings Costs charges and expenses
whatsoever in respect thereof or in relation thereto.
INSURANCES
Contractor's "All 25.1 Without limiting the Contractor's obligations and

Risks" Insurance responsibilities under Clauses 21 and 22, the
Employer shall effect and maintain for the benefit
and in the joint names of the Employer, the
Contractor and sub-contractors of any level a
"contractor's all risks" insurance covering physical
loss of or physical damage to the Works (including
any temporary buildings at the Site) and physical
loss of or physical damage to any Plant and
Materials for incorporation into the Works which are
in Hong Kong (whether such Plant and Materials be
at the Site or in transit, or in temporary storage, prior
to delivery to the Site) during the period of
construction, installation and testing and also
covering physical loss of and/or physical damage to
such property arising prior to the issue of the Defects
Correction Certificate from a cause occurring during
the period of construction, installation and testing on
the Site or occasioned by the Contractor in the
course of any operations carried out by him for the
purpose of complying with his obligations under
Clause 75.
40 September 2020
Third Party 25.2 Without limiting the Contractor's obligations,

Insurance responsibilities and liabilities under Clause 24.1 the
Employer shall effect and maintain for the benefit
and in the joint names of the Employer, the
Contractor and sub-contractors of any level on Site,
insurance covering the legal liability of each of them
for accidental injury to persons or accidental loss of
or damage to property (other than the property
insured under Clause 25.1) arising out of the
Execution of the Works and happening anywhere in
Hong Kong. Such insurance shall remain in force
for the full period until the date of the Defects
Correction Certificate and be for an indemnity limit
not less than that specified in the Appendix to the
Form of Tender.
Contractor's 25.3 The insurances referred to in Clauses 25.1 and 25.2

Obligations shall be effected with insurers of the Employer's
choosing and the Employer shall upon the
Contractor's request provide the Contractor with a
summary of the terms and conditions thereof. The
Contractor shall conform to the conditions of such
insurance and all reasonable requirements of
insurers in connection with the settlement of claims,
the recovery of losses and the prevention of
accidents and shall bear at his own Cost the
consequences of any failure so to do. The
Contractor shall bear the Cost of all excesses
(deductibles) exclusions or limitations applying
under the said policies (in so far as they concern
risks for which he is responsible under the terms of
the Contract) whether in respect of claims made by
or against the Contractor and/or the Employer or
against the Government pursuant to the provisions
of the Railways Ordinance. The Employer may
deduct any amounts payable by the Contractor
under this clause from any monies due or which may
become due to the Contractor. The Contractor
shall not take or omit to take any step the taking or
omission of which may result in any insurance policy
or the cover under such policy becoming void or
voidable.
Contractor’s 26.1 The Contractor shall effect and maintain insurance in

Equipment the joint names of the Employer and the Contractor
Insurance against all loss or damage from whatever cause
arising in respect of all Contractor's Equipment
brought onto and destined for the Site for use in the
Execution of the Works to the full value of such
Contractor's Equipment.
41 September 2020
Insurance against 26.2 Without limiting the Contractor’s obligations,

Accidents to responsibilities and liabilities under Clause 24.1, the
Workmen Contractor shall insure his liability as defined in
Clause 24.5 during the whole time that such persons
are employed by him or by his sub-contractors or
suppliers in connection with the Works. The policy of
insurance should comply with all provisions of the
Form of Tender.
Professional 26.3 The Contractor shall effect and maintain or cause his
Indemnity sub-contractors of any level and his design
Insurance consultants to effect and maintain professional
indemnity insurance in respect of any design of the
Works (including Temporary Works), such insurance
to provide cover in a sum and for a period not less
than that stated in the Appendix to the Form of Tender.
In the event that the limit of indemnity under any of the
professional indemnity insurance policies is
exhausted by reason of indemnity payments paid or
payable under such insurance policy, the limit of
indemnity under the policy shall be reinstated in
accordance with the Letter of Undertaking for
Professional Indemnity Insurance in the Appendix to
the Form of Tender.
Motor & Marine 26.4 The Contractor shall at all material times keep in force
Insurance the following additional insurances in so far as they
may be applicable:
(a) Policies of motor liability insurance in respect

of all mechanically propelled vehicles used on
public highways or in any circumstances such
as to be eligible for compulsory motor
insurance in accordance with any Enactment,
in a sum of not less than that stated in the
Appendix to the Form of Tender for accidental
third party property damage and accidental
injury.
(b) Marine policies in respect of all floating craft

and plant or marine platforms covering loss of
or damage to such items to the full value
thereof and including Protection and Indemnity
and Third Party Liability cover to an amount
equal to the full value thereof or in a sum of not
less than that stated in the Appendix to the
Form of Tender, whichever be the greater.
The Contractor shall in addition comply and
cause any sub-contractor to comply with the
provisions of the Merchant Shipping
(Compulsory Third Party Risks Insurance)
Regulations and the Merchant Shipping
42 September 2020
(Pleasure Vessel) Regulations; and
(c) Aviation policies in respect of the use of any

aircraft in connection with the Execution of the
Works, the amount of such cover to be
discussed and agreed with the Engineer prior
to the use of any aircraft.
Marine Cargo 26.5 The Contractor shall effect and maintain for the
Insurance benefit of and in the joint names of the Employer, the
Contractor and sub-contractors of any level a Marine
Cargo Insurance on all risks conditions including
war, strike, riots, and civil commotion in respect of
each shipment of Plant and Materials from the time
of departure from the Contractor's premises or place
of manufacture or store outside Hong Kong until
delivery to the Site. The sum insured under such
cargo insurance shall be for not less than the full
value for each shipment of the Plant and Materials
shipped as set out in the Pricing Document including
freight or such other figure as may be agreed by the
Engineer.
Other Insurance 26.6 The Contractor shall effect and maintain ‘all risks’
cover to the Engineer's satisfaction on any Plant and
Materials in course of manufacture off Site until such
Plant and Materials become insured under the
policies referred to in Clause 25.1 and/or Clause 26.5.
Indemnity to 26.7 All insurances referred to in Clause 26 (with the

Employer exception only of the Professional Indemnity
Insurance referred to in Clause 26.3) shall be
endorsed to note the interest of the Employer and to
indemnify him fully in respect of claims that may be
made against him arising out of the Execution of the
Works and shall cover all liabilities usually and
reasonably insurable for which the Contractor is
responsible under the terms of the Contract. All
policies should contain a waiver of subrogation clause
in favour of the Employer.
Sub - Contractor's 27.1 In respect of the use by a sub-contractor of

Insurances Contractor's Equipment and equipment, mechanically
propelled vehicles, floating craft and plant, marine
platforms or aircraft, the Contractor's obligation to
insure under Clause 26 shall be satisfied if the
sub-contractor himself shall have effected such
insurances endorsed as required by Clause 26.7 but
the Contractor shall require such sub-contractor to
produce to the Engineer or the Engineer's
Representative when required all such policies and
receipts for payment of the current premiums.
43 September 2020
Production of 28.1 The insurances referred to in Clauses 26 and 27 shall

Policies be effected with insurers and on terms approved by
the Employer (which approval shall not be
unreasonably withheld) and the Contractor shall
whenever required produce to the Engineer or the
Engineer's Representative the policies of insurance
and the receipts for payment of the current premiums.
Remedy on Failure 29.1 If the Contractor or the Employer fails to effect and
to Insure keep in force the insurances referred to in Clauses 26
and 25 respectively then in such case, the Employer
or the Contractor, as the case may be, may effect and
keep in force any such insurances and pay such
premium or premiums as may be necessary for that
purpose and from time to time deduct, or as the case
may be, add, the amount so paid from or to any
monies due or which may become due to the
Contractor or recover the same as a debt due from or,
as the case may be, to the Contractor.
NOTICES TO BE SUBMITTED
Contractor to give 30.1 In the event of any workman or other person

Notice of Injury employed in Hong Kong on the Works or in
connection with the Contract, whether in the employ
of the Contractor or a sub-contractor, suffering any
accident, injury or incapacitating illness and whether
there be a claim for compensation or not, the
Contractor shall without delay notify the
Commissioner for Labour in such form as the
Commissioner for Labour may require and shall
forward forthwith two copies of such notification to the
Engineer.
Giving of Notices 31.1 The Contractor shall give all notices and pay all fees
and Payment of required to be given or paid by any Enactment or any
Fees other requirement of any duly constituted authority in
relation to the Execution of the Works.
31.2 The Contractor shall give all notices, make

arrangements and pay all fees and charges required
for the supply of electricity, water, telephone, gas and
other services for the purposes of the Execution of the
Works except as provided by Clause 62.4 and shall
obtain Approval for all such arrangements.
Audited Accounts 31.3 The Contractor shall submit to the Employer annual
audited accounts (both accounts of the Contractor's
expenses and income as a whole and of his expenses
and income relating to the Works) within 120 Days
after the end of the period to which they relate and
44 September 2020
such other additional financial information relating to

the said accounts as the Employer may reasonably
require from time to time.
Change in Control 31.4 The Contractor shall notify the Employer if the
Contractor becomes a subsidiary of a Person of
whom the Contractor was not a subsidiary at the
date of the Letter of Acceptance or comes under the
control of two or more Persons acting in concert so
that if they were one company the Contractor would
be its subsidiary, and in such event Clause 101.6
shall apply.
Compliance with 32.1 The Contractor shall comply and shall require any
Enactments sub-contractors and/or agents to undertake in any
relevant contracts to comply in all respects with the
provisions of any Enactment and with any other
requirements of any duly constituted authority which
may be applicable to the Works and/or to the
Execution of the Works and shall keep the Employer
indemnified against all penalties and liabilities of every
kind for breach of any such Enactment or
requirement.
Language of Notice 33.1 Any notices required to comply with Enactments or

the rules and regulations of other competent authority
and which the Contractor may have to exhibit either
for the benefit of the public or for the benefit of his
employees shall be in English and in Chinese
characters and such other language as may be
necessary in order for the notice to be understood by
those to whom it is addressed or for whom it is
intended.
TRAFFIC AND SPECIAL LOADS
Interference with 34.1 All operations necessary for the Execution of the
Traffic and Works shall, so far as compliance with the
Adjoining requirements of the Contract permit, be carried on so
Properties as not to interfere unnecessarily or improperly with
the public convenience or the access to or use or
occupation of public roads and footpaths and
waterways, anchorages and navigation channels or
access to or use or occupation of properties whether
in the possession of the Employer or of any other
Person and the Contractor shall indemnify and keep
indemnified the Employer (throughout the period of
the Execution of the Works) against any expense or
loss sustained by the Employer and against all
losses and claims for injuries or damage to any
person or any property whatsoever and against all
claims, demands, proceedings, damages, Costs,
45 September 2020
charges and expenses howsoever caused arising

out of or in relation to any such matters.
Nuisance and 34.2 All work shall be carried out without unreasonable
Disturbance nuisance and disturbance. The Contractor shall
take all steps to comply with the requirements of the
Specification in these matters. The Contractor shall
indemnify and keep indemnified the Employer
(throughout the period of the Execution of the
Works) against any expense or loss sustained by the
Employer and against all losses and claims for
injuries or damage to any person or any property
whatsoever and against all claims, demands,
proceedings, damages, Costs, charges and
expenses arising out of or in relation to the
Execution of the Works.
Extraordinary 35.1 The Contractor shall use every reasonable means to

Traffic prevent any of the highways or bridges
communicating with or on the routes to the Site from
being damaged or injured by any traffic of the
Contractor or any of his sub-contractors and in
particular shall select routes, choose and use
vehicles and restrict and distribute loads so that
such extraordinary traffic as will arise from the
moving of Contractor's Equipment and Plant and
Materials from and to the Site shall be limited as far
as reasonably possible and so that no unnecessary
damage or injury may be occasioned to such
highways and bridges. The Contractor shall in
selecting such routes take advice from and follow
the instructions of the Commissioner for Transport
and other relevant authorities. The Contractor shall
against all losses and claims for injuries or damage
to any highway, bridge or other highway structure
whatsoever and against all claims, demands,
expenses howsoever caused arising out of or in
relation to any such matters.
Special Loads 35.2 Should the Commissioner for Transport or other

relevant authority or the Contractor be of the opinion
that it is necessary to move one or more loads of
Contractor's Equipment or Plant and Materials over a
highway or bridge the moving whereof is likely to
damage any highway or bridge unless special
protection or strengthening is carried out then the
Contractor shall before moving the load on to such
highway or bridge give notice to the Engineer or
Engineer's Representative of the weight and other
particulars of the load to be moved and request the
46 September 2020
protection or strengthening of the said highway or

bridge. If within 14 Days of receipt of such notice the
Engineer directs in writing that such protection or
strengthening is unnecessary then the Contractor
may move the said load or loads over the said
highway or bridge but otherwise the Contractor shall
not move the said load or loads until notified by the
Engineer of the route which he may use.
Settlement of 35.3 If during the Execution of the Works or at any time

Extraordinary thereafter the Contractor shall receive any claim
Traffic Claims arising out of the Execution of the Works in respect
of damage or injury to highways or bridges he shall
immediately report the same to the Engineer and
thereafter the Employer shall negotiate the
settlement of and pay all sums due in respect of
each claim and shall indemnify the Contractor in
respect thereof and in respect of all claims demands
proceedings damages Costs charges and expenses
in relation thereto. Provided always that if and so
far as any such claims or part thereof shall in the
opinion of the Engineer be due to any failure on the
part of the Contractor to observe and perform his
obligations under Clauses 35.1 and 35.2 the amount
certified by the Engineer to be due to such failure
shall be paid by the Contractor to the Employer.
35.4 Where the nature of the Works is such as to require

the use by the Contractor of waterborne transport the
foregoing provisions of this Clause 35 shall be
construed as though "highway" includes any dock,
sea wall or other structure related to, on or beneath a
waterway, and "vehicle" includes craft, vessels,
marine platforms or floating parts of the Works and
such provisions shall have effect accordingly.
MISCELLANEOUS
Patent Rights 36.1 The Contractor shall save harmless and indemnify
the Employer from and against all claims and
proceedings for or on account of infringement or
alleged infringement of any Intellectual Property
Rights in respect of the Works or of any Plant and
Materials, Contractor's Equipment, other plant or
equipment, machine, documents, drawings, or
material used for or in connection with the Works
and from and against all claims, demands,
expenses whatsoever in respect thereof or in
relation thereto in Hong Kong or any country,
howsoever caused and whensoever arising.
47 September 2020
36.2 In the event of any claim being made or action

brought against the Employer arising out of the
matters referred to in Clause 36.1, the Contractor
shall be promptly notified thereof and shall unless
otherwise instructed by the Employer at his own
expense conduct all negotiations for the settlement
of the same and any litigation that may arise
therefrom. The Employer shall not unless agreed
with the Contractor or in circumstances where the
Employer has taken over the conduct of the
negotiations or litigation make any admission which
might be prejudicial thereto. The Employer will at
the request of the Contractor afford all available
assistance for the purpose of contesting any such
claim or action, and will be repaid by the Contractor
any expenses incurred in so doing. In addition to
any other remedies which the Employer may have,
in the event that the Contractor shall have failed to
take over the conduct of the negotiations or litigation,
the Employer shall be entitled to undertake such
negotiations or litigation, but at the cost of the
Contractor.
Royalties and 36.3 The Contractor shall be responsible for the payment
Other of all tonnage and other royalties, licence fees, rent
Compensation and other payments or compensation of whatsoever
Payments nature arising out of the Execution of the Works, or
any work method, process, system, document,
drawing, Contractor's Equipment or Plant and
Materials required for the Works. Any royalties or
licence fees received by or for the Contractor arising
out of other Intellectual Property Rights jointly
developed by the Contractor and the Employer shall
be shared between them in proportions which
properly reflect the financial and design contribution
made by each of them to the development of the
Intellectual Property Rights. In the event of a failure
to agree the said proportions, the proportions shall
be fixed by mediation or by an arbitrator, in
accordance with the procedure set out in Clause
103.
36.4 Insofar as any Intellectual Property Rights or any

application or right to apply for any of the same in or in
respect of Design Data, plans, calculations, drawings,
documents, materials, inventions, business names,
know how and information (including computer
storage discs, computer print outs, computer
programs, integrated circuit layouts and data files)
relating to the Works, the Railway and the Railway
under Construction shall be vested in the Contractor,
the Contractor grants to the Employer its successors
48 September 2020
and assigns a royalty-free, non-exclusive and

irrevocable licence (together with the right to grant
sub-licences) to use, reproduce, modify, adapt and
translate any of the works designs or inventions
incorporated or referred to in such documents or
materials and any such know how and information for
all purposes relating to the Works, the Railway and/or
the Railway under Construction (including without
limitation the design, construction, reconstruction,
completion, maintenance, reinstatement, extension,
repair and operation of the Works, the Railway and/or
the Railway under Construction) and the Employer’s
other businesses. To the extent that beneficial
ownership of such Intellectual Property Rights are
vested in anyone other than the Contractor, the
Contractor shall procure that the beneficial owner
thereof shall grant a like licence to the Employer
where such Intellectual Property Rights have been
developed specifically for the Works by the
Contractor’s sub-contractor, supplier or others
engaged by the Contractor pursuant to the Contract.
In all other circumstances, the Contractor shall use his
best endeavours to procure that the beneficial owner
thereof shall grant a like licence to the Employer.
36.5 The Contractor agrees that any assignment by him of

the Intellectual Property Rights referred to in Clause
36.4 above shall be subject to the licences of the
Employer (and their respective assigns and
successors).
36.6 The Contractor hereby irrevocably and

unconditionally waives and shall procure all authors
concerned to waive, in favour of the Employer (and
their respective assigns and successors) all moral
rights in respect of the documents and information
referred to in Clause 36.4 above, to which they may
now or at any time in the future be entitled under the
Copyright Ordinance (Cap. 528) or under any similar
law in force from time to time anywhere in the world.
Use of Contractor’s 37.1 If required by the Engineer, the Contractor shall

Equipment and permit the use on Site of his Contractor's Equipment
Labour and labour by utility companies, Government
Departments and other contractors employed by the
Employer and their respective workmen and the
workmen of the Employer who may be engaged in
the execution on or near the Site of any work
ancillary to the Works but not included in the
Contract.
49 September 2020
37.2 If compliance with Clause 37.1 shall cause the

Contractor to suffer delay or incur Cost, then:


Sufficiency of 38.1 The Contractor shall be deemed to have satisfied

Tender, Adverse himself before signing the Letter of Clarification as to
Physical the correctness and sufficiency of the Contract Sum
Conditions and and of the rates and prices stated by him in the
Artificial Pricing Document which rates and prices shall
Obstructions except insofar as it is otherwise provided in the
Contract cover all his obligations under the Contract
and all matters and things necessary for the proper
Execution of the Works. If however during the
Execution of the Works the Contractor shall
encounter within the Site physical conditions (other
than weather conditions or conditions due to weather
conditions) or artificial obstructions which conditions
or obstructions he considers could not reasonably
have been foreseen by an experienced contractor at
the date of the Letter of Clarification, and the
Contractor is of the opinion that additional Cost will
be incurred which would not have been incurred if
the physical conditions or artificial obstructions had
not been so encountered, he shall if he intends to
make any claim for additional payment comply with
Clause 82 and shall also specify in the notice under
Clause 82 the physical conditions and/or artificial
obstructions so encountered and with the notice if
practicable or as soon as possible thereafter give
details of the anticipated effects thereof, the
measures he is taking or is proposing to take and the
extent of the anticipated delay in or interference with
the Execution of the Works.
Measures to be 38.2 Following receipt of a notice under Clause 38.1 (and

Taken subject to the Contractor complying with the
requirements of Clause 82) the Engineer may if he
50 September 2020
thinks fit:
(a) require the Contractor to provide an estimate of

the Cost of the measures he is taking or is
proposing to take;
(b) approve in writing such measures with or without

modification;
(c) give written instructions as to how the physical

conditions or artificial obstructions are to be
dealt with; or
(d) order a suspension under Clause 72 or a

Variation under Clause 79.
Delay and Extra 38.3 To the extent that the Engineer shall decide that the
Cost whole or some part of the said physical conditions or
artificial obstructions could not reasonably have been
foreseen by an experienced contractor at the date of
the Letter of Clarification the Engineer shall take any
delay or disruption of working suffered by the
Contractor as a result of such conditions or
obstructions into account in determining any
extension of time to which the Contractor is entitled
under Clause 68.1. If the Contractor shall comply with
Clause 82 (notwithstanding that the Engineer may not
have given any instructions or orders pursuant to
Clause 38.2) the Engineer shall assess such sum as
represents the reasonable Cost of carrying out any
additional work done and additional Contractor's
Equipment used which would not have been done or
used had such conditions or obstructions or such part
thereof as the case may be not been encountered,
together with a reasonable percentage addition
thereto in respect of profit; and the reasonable Costs
incurred by the Contractor by reason of any delay or
disruption of working suffered as a consequence of
encountering the said conditions or obstructions or
such part thereof. The Engineer shall certify the
amount by which such sum exceeds the amount
specified in the Appendix to the Form of Tender by
reference to this clause and the amount so certified
shall be paid by the Employer to the Contractor. This
clause shall not apply to any Variation ordered
pursuant to Clause 38.2(d) or Clause 79 which shall
be valued in accordance with Clause 80.
Conditions 38.4 If the Engineer shall decide that the physical

Reasonably conditions or artificial obstructions could in whole or
Foreseeable in part have been reasonably foreseen by an
experienced contractor at the date of the Letter of
51 September 2020
Clarification he shall so inform the Contractor in

writing as soon as he shall have reached that
decision but the value of any Variation previously
ordered by him pursuant to Clause 38.2 shall be
ascertained in accordance with Clause 80 and
included in the Contract Price.
Supply of 39.1 All Contractor's Equipment used in the Execution of

Contractor’s the Works shall comply with the requirements in
Equipment relation thereto of the relevant laws of Hong Kong and
regulations of the relevant statutory authorities. The
Engineer may reject any such Contractor's Equipment
that he considers unsuitable for the purpose for which
the Contractor proposes to use it even though it may
comply with the aforesaid requirements and any such
Contractor's Equipment so rejected shall not be used
for the purpose proposed and if so ordered by the
Engineer shall be removed from the Site.
39.2 The Contractor shall provide, in the form and to the

extent required by the Specification or from time to
time by the Engineer's Representative, returns of
Contractor's Equipment required for the Works.
39.3 In respect of any Contractor's Equipment which the

Contractor will have imported for the purposes of the
Works the Employer shall assist the Contractor where
required in procuring any necessary Government
consent to the re-export of such Contractor's
Equipment by the Contractor upon the removal
thereof from Hong Kong.
39.4 The Employer shall assist the Contractor where

required in obtaining clearance through the Hong
Kong Customs of Plant and Materials and
Contractor's Equipment and other things required for
the Works.
Liaison with 40.1 The Contractor shall receive all observations,

Government, complaints and requests made by Government, public
Public and Private and private bodies and Persons and forthwith inform
Bodies fully the Engineer's Representative thereof and shall
use his best endeavours to maintain harmonious
relations with them but shall not vary the Execution of
the Works or any instruction or Approval given by the
Engineer unless ordered by him to do so.
Conditions on Site 41.1 During the Execution of the Works the Contractor
and Clearance of shall keep the Site in a clean and tidy condition to
Site on Completion the satisfaction of the Engineer and so order the
Works and his Contractor's Equipment and Plant
and Materials as to allow the Execution of the Works
52 September 2020
to proceed in an efficient manner and without

impeding access or otherwise hindering the work or
safety of others. On the completion of the Works or
any part or Section of the Works the Contractor
shall, unless otherwise ordered by the Engineer,
clear away and remove from the Site all Contractor's
Equipment, surplus materials and rubbish and
Temporary Works and shall leave the Works or that
part or Section of the Works and associated parts of
the Site in a clean and workmanlike condition to the
satisfaction of the Engineer and shall vacate the Site
or any relevant part thereof. Any Contractor's
Equipment, surplus materials, rubbish and
Temporary Works no longer required for the
execution of a part of the Works shall if so ordered
by the Engineer be removed forthwith from that part
of the Site. In the event of the Contractor failing to
comply with any of the above requirements the
Engineer may arrange for the removal of the
relevant items from the Site and the Cost of such
removal shall be paid for by the Contractor failing
which the Employer may deduct such Cost from any
monies due or which shall become due to the
Contractor.
Arms and 42.1 The Contractor shall not hold on the Site arms or
Ammunition ammunition of any description nor shall he permit
others to do so. The Contractor shall notify the
Commissioner of Police of any explosives, arms or
ammunition found or suspected to be on the Site.
Explosives 42.2 No explosives of any kind shall be used by the

Contractor without the written consent of the
Engineer. Use shall be only in accordance with the
requirements of the Contract and in accordance with
the requirements and instructions as may from time to
time be laid down by Government.
Fossils 43.1 All fossils, coins, articles of value or antiquity and

structures or other remains or things of geological or
archaeological interest discovered on the Site shall as
between the Employer and the Contractor be deemed
to be the absolute property of the Employer, and the
Contractor shall take all reasonable precautions to
prevent his workmen or any other persons from
removing or damaging any such article or thing and
shall immediately upon discovery thereof and before
removal inform the Engineer of such discovery and
carry out at the expense of the Employer the
Engineer's orders as to the disposal of the same.
53 September 2020
Publicity 44.1 Neither the Contractor nor any sub-contractor shall

except with the written consent of the Employer
obtained through the Engineer and subject to such
conditions as may be imposed if consent is given:
(a) give, publish, display or allow to be given

published or displayed, or take any information,
descriptive matter, article, drawings, pictorial
representation, artist's impression,
advertisement, photograph, photographic slide,
or film, or the like concerning the Works; or
(b) use the Site for the purpose of advertising; or
(c) give or allow to be given interviews to the Press,

radio or television or take part in programmes
concerning the Works.
Offering, Soliciting 45.1 The Contractor shall prohibit its directors,

or Accepting employees, agents and sub-contractors from
Gratuities offering, soliciting or accepting any advantage in
connection with the Execution of the Works.
45.2 The Contractor shall take all necessary measures

(including by way of contractual provisions) to
ensure that its directors, employees, agents and
sub-contractors are aware of the prohibitions in this
clause.
45.3 If the Contractor or any director, employee, agent or

sub-contractor shall be found to have failed to
comply with this clause, the Employer shall be at
liberty forthwith to require the dismissal and removal
from the Site of such director, employee, agent or
sub-contractor and to hold the Contractor liable for
any loss or damages which the Employer may
thereby sustain.
Conflicts of Interest 45.4 The Contractor shall require its directors, employees,
agents and sub-contractors who are involved in this
Contract to declare in writing to the Contractor any
conflict or potential conflict between their
personal/financial interests and their duties in
connection with this Contract. In the event that such
conflict or potential conflict is disclosed in a
declaration, the Contractor shall forthwith take
measures reasonably required by the Employer to
mitigate as far as possible or remove the conflict or
potential conflict so disclosed.
45.5 If the Contractor has failed to comply with the

disclosure requirement or take measures reasonably
54 September 2020
required by the Employer to mitigate as far as

possible or remove the conflict or potential conflict so
disclosed under Clause 45.4, the Employer may, by
giving the Contractor a 14-Day notice, terminate the
Contract forthwith.
Designated 46.1 Any other contract which prescribes services to be

Contracts provided or information to be given or received in
relation to the Works, or which depends for its own
execution on the Contract, will be identified in the
Specification as a Designated Contract. The name of
a Designated Contractor may or may not be known
before the date of the Letter of Acceptance and this
will not be a ground for the Contractor to object to the
subsequent appointment of such Designated
Contractor.
Access for Others 46.2 The Contractor shall in accordance with the
requirements of the Engineer afford all reasonable
opportunities for carrying out their work to the utility
companies, Government Departments, any other
contractors employed by the Employer and their
workmen, any workmen of any Interfacing
Contractors and the workmen of the Employer or
Government Departments who may be engaged in
the execution on or near the Site of any work
ancillary to the Works but not included in the
Contract and shall not cause them unnecessary
inconvenience.
Co-ordination 46.3 The Contractor shall in accordance with the

requirements of the Engineer co-ordinate his own
work under the Contract with that of Designated
Contractors and Interfacing Contractors under their
respective contracts with the Employer and with that
of the Employer's own workmen at the times stated
in the Specification or at such other times as the
Engineer may require. In addition, the Contractor
shall take all reasonable steps to ensure that the
Execution of the Works is co-ordinated and
integrated with the works of Designated and
Interfacing Contractors, and shall comply with any
directions which the Engineer may give for the
integration and/or co-ordination of the Execution of
the Works with the execution of the works of any
Designated or Interfacing Contractor.
Designated 46.4 The Contractor shall require his workforce to comply

Contractors with all reasonable requirements and directions of
the Designated Contractor who has possession of
the Site with regard to security, safety and all other
related matters in respect of the Site.
55 September 2020
46.5 If, without the prior agreement of the Engineer, the

Contractor shall cause delay or expense in the
execution of the work of a Designated Contractor, the
Contractor shall pay or the Engineer may deduct from
Interim Payment Certificates issued under Clause
86.1 such amount as the Engineer shall have certified
in respect of Cost to the Designated Contractor in
respect of such delay or expense.
Designated and 46.6 If the Contractor shall suffer delay or incur Cost
Other Contractors: because the activities of any Designated Contractor
Delay or Interfacing Contractor are such that the
Contractor is unable to proceed with the Execution
of the Works with due despatch in accordance with
the Master Programme, the Installation Programme
and/or the Co-ordinated Installation Programme, or if
compliance with Clause 46.2 or Clause 46.3 shall
involve the Contractor in delay or Cost, then:


Utility Companies: 46.7 If the Contractor suffers delay or incurs cost as a

Delay result of the failure of any utility company to comply
with the utility programme agreed between that utility
company and the Contractor, and Approved as part of
a Programme under Clause 15 and after the
Contractor has taken all reasonable steps to cause
that utility company to proceed with its work in
accordance with such agreed utility programme, then:

56 September 2020

LABOUR
Engagement of 47.1 The Contractor shall make his own arrangements for
Labour the engagement of all labour local or otherwise skilled
and unskilled as may be required for the Execution of
the Works in Hong Kong and for their payment,
housing, feeding and transport. All such
arrangements shall be in accordance with the general
local usage and subject to such Enactments as
Government may from time to time require to be
observed.
47.2 As far as practicable all labour required on Site both

skilled and unskilled shall be drawn from residents of
Hong Kong.
Expatriate 47.3 If the Contractor is unable to obtain all the skilled and
Personnel unskilled labour required pursuant to Clause 47.2 by
employing residents of Hong Kong he shall make his
own arrangements to obtain suitable persons outside
Hong Kong and shall obtain the approval of the
Immigration Department for the employment of every
such person.
Accommodation 48.1 Accommodation for labour provided by the Contractor

for Labour shall comply with the provisions of any Enactment
relating thereto.
Wages and 49.1 The Contractor shall pay rates of wages and observe
Conditions for hours and conditions for labour which are not less
Labour favourable than the general level of wages, hours and
conditions observed by other employers in Hong Kong
whose general circumstances in the trade or industry
in which the Contractor is engaged are similar.
Labour Returns 50.1 The Contractor shall to the satisfaction of the

Engineer keep wages books and time sheets
showing the wages paid to and time worked by the
workmen in and about the Execution of the Works in
Hong Kong and whenever required shall produce
such wages books and time sheets for inspection by
the Engineer's Representative or by any person
57 September 2020
authorised by him.
50.2 The Contractor shall deliver to the Engineer's

Representative at his office a return in such form and
at such intervals as the Engineer's Representative
may require showing the supervisory staff and the
numbers of the several classes of labour employed
by the Contractor on the Site and separately at other
locations in Hong Kong.
Hours of Work, 51.1 The Contractor shall be permitted to work on the

Night and General Works at the Site during the Night and on General
Holiday Work Holidays provided that:
(a) the Contractor's arrangements for such work are

Approved;
(b) such work is carried out in accordance with the

Specification; and
(c) the work is carried out in accordance with such

Enactments as may be applicable.
51.2 The Engineer may by notice order the Contractor not

to carry on any work at the Site on any General
Holiday and where such a notice is given an
extension of time of one Day for each Day's General
Holiday during which the Contractor is forbidden by
such order to carry on work shall be allowed by the
Engineer for achievement of any Completion
Obligation the achievement of which has, in the
opinion of the Engineer, been delayed by the issue
of such order. Provided that notwithstanding any
such order the Contractor may work at the Site on
General Holidays or at Night if it is absolutely
necessary for the saving of life or property or for the
safety of the Works in which case the Contractor
shall immediately so advise the Engineer's
Representative.
51.3 The Contractor shall when required by the Engineer

supply details of his working arrangements in terms
of manpower and the Days and hours to be worked.
Contractor to 52.1 The Contractor shall at all times during the progress
Preserve Peace of the Contract take all requisite precautions and use
his best endeavours to prevent any riotous or
unlawful behaviour by or amongst the workmen and
others employed on or in connection with the Works
and for the preservation of the peace and protection
of the inhabitants and the security of all property in
the neighbourhood of the Works in Hong Kong, and
58 September 2020
for those purposes shall be entitled to employ such

security personnel in connection with the Works as
he may believe to be necessary. Provided that the
Contractor shall not interfere with the Hong Kong
Police who shall have free and undisputed access at
all times to any part of the Site in the execution of
their duties.
Restrictions on 53.1 The Contractor shall not at any time give, sell or
Alcoholic Liquor barter any alcoholic liquors or drugs or permit or
and Drugs suffer any such sale, gift or barter to be made by any
sub-contractor, employee or agent of the Contractor,
nor import or permit or suffer the importation of any
alcoholic liquors or drugs into Hong Kong or any part
thereof otherwise than in conformity with such
Enactments as may be applicable.
Festivals and 54.1 The Contractor, all sub-contractors and all their
Religious Customs agents and employees shall in all their dealings with
their workmen and labourers for the time being
employed on or in connection with the Execution of
the Works in Hong Kong have due regard to all
recognised festivals and religious and other customs.
Epidemics 55.1 In the event of illness of an epidemic nature breaking

out in Hong Kong the Contractor shall carry out and
comply with all such orders, arrangements or
regulations as may be issued by Government. The
Contractor shall comply with any instructions issued
by Government regarding measures to be adopted to
prevent or control diseases of any kind.
Passes 56.1 The Engineer may require the Contractor, at the

Contractor's expense, to provide and issue passes for
the admission of any person having business on the
Site, including persons not employees of the
Contractor or any sub-contractor, to the Site or to any
part thereof and in such event any person who fails to
show his pass on demand to any duly authorised
employee or agent of the Contractor or the Employer
may be refused admission.
56.2 Passes and the procedure for their use shall be

subject to Approval and to the requirements of the
Engineer which may be varied from time to time.
56.3 If required by the Engineer, the Contractor shall

submit a list of the names of all his and his
sub-contractors' workpeople requiring passes,
together with two photographs of each person and
shall satisfy the Engineer of their bona fides and
59 September 2020
identity before passes are prepared and issued.
56.4 The Contractor shall procure the return of any pass

so issued at any time on the demand of the Engineer
or on the cessation of the bearer's employment on
the Works.
56.5 Except with the written permission of the Engineer or

the Employer, to be given when necessary for the
Execution of the Works subject to such terms as
may be imposed, the employees of the Contractor
and of his sub-contractors shall not be permitted to
enter any building or lands of the Employer or any
sites under the control of other contractors or of the
Employer and the Contractor shall warn his
employees that any person found within such
buildings or sites without such authority is liable to
be removed from the Works.
PLANT AND MATERIALS AND WORKMANSHIP
Quality and Manner 57.1 All Plant and Materials and workmanship shall be
of Execution subjected from time to time to such inspections and
tests as the Engineer may direct or approve at the
place of manufacture or fabrication or on the Site or
at such other place or places as may be specified in
the Contract or Approved. If part of the Plant and
Materials is being manufactured on premises other
than the Contractor’s premises, the Contractor shall
obtain for the Engineer permission to inspect,
examine and test as if the Plant and Materials were
being manufactured on the Contractor's premises.
57.2 The Contractor shall provide such assistance,

instruments, machines, labour and materials and
other facilities as are clearly intended by or are
provided for in the Specification as normally required
for examining, measuring and testing any
workmanship of the Contractor or Plant and
Materials and the quality, weight or quantity of any
Plant and Materials used and shall supply samples
of Plant and Materials before incorporation in the
Works for testing as may be selected and required
by the Engineer.
57.3 Any defective work or Plant and Materials may be

removed, replaced or rectified with minimum delay
and without causing damage to any non-defective
work or Plant and Materials. The procedure and
programme for testing shall be submitted as required
to the Engineer for Approval adequately in advance
of the work concerned.
60 September 2020
Quality Plan 57.4 The Contractor shall by the date stated in the
Specification submit to the Engineer for Approval a
quality plan, which shall set out details of the quality
management system to be implemented by the
Contractor in order to control all design,
procurement, manufacture, construction and
installation activities required by the Contract in such
a way as to ensure completion of the Works in
accordance with the Contract, with the Approved
Design Data and with any drawings or documents
submitted by the Contractor pursuant to Clause 8
and Approved. The submission of such quality plan,
and all submissions to the Engineer of supplemental
parts of such quality plan, shall be made in
accordance with the Specification and shall not
otherwise be subject to the procedure set out in
Clause 8. All submissions of supplemental parts of
such quality plan pursuant to this Clause 57.4 shall
in any event be made not less than 30 Days before
the commencement of any work or the placing of any
order which is the subject of any such submission.
Form and Content 57.5 The form and content of the initial submission of the
of Quality Plan said quality plan, and of all supplemental parts
thereof, shall be in accordance with the requirements
prescribed in the Specification.
Adherence to 57.6 Upon the Engineer confirming to the Contractor

Quality Plan Approval of the said quality plan it shall be known as
"the Quality Plan", and the Contractor shall adhere to
the principles and procedures contained in or
referred to in the Quality Plan and in any
amendments, modifications or additions thereto to
which the Engineer's subsequent Approval is given.
Quality Manager 57.7 The Contractor shall appoint a Site based suitably
qualified and experienced person to act as manager
of the quality management system set out in the
Quality Plan and shall from time to time provide such
other personnel and resources as may be required
to ensure effective implementation of the Quality
Plan.
Access 57.8 The Contractor shall provide all necessary access,

assistance and facilities both on and off the Site to
enable the Engineer to verify that the Quality Plan is
being properly and fully implemented and/or to
conduct quality audits.
Cost of Samples 57.9 All samples shall be supplied by the Contractor at his
own Cost if the supply thereof is clearly intended by or
61 September 2020
provided for in the Contract.
Cost of Tests 57.10 The Cost of making any test shall be borne by the
Contractor if such test is:
(a) clearly intended by or provided for in the

Contract; or
(b) particularised in the Contract (in cases only of a

test under load or of a test to ascertain whether
the design of any finished or partially finished
work is appropriate for the purposes which it
was intended to fulfil).
Cost of Tests not 57.11 If any test required by the Engineer which is:
Provided for
(a) not so intended by or provided for; or
(b) (in the cases above mentioned) not so

particularised; or
(c) (though so intended or provided for) required

by the Engineer to be carried out at any place
other than the Site or the place of manufacture,
fabrication or preparation of the Plant and
Materials tested,
shows the Plant and Materials or workmanship not

to be in accordance with the provisions of the
Contract to the satisfaction of the Engineer, then the
Cost of such test shall be borne by the Contractor,
but in any other case Clause 57.12 shall apply.
Engineer's 57.12 Where, pursuant to Clause 57.11, this Clause 57.12

Determination applies to any test required by the Engineer, and
where Tests not such test has caused the Contractor to suffer delay
Provided for or incur Cost, then:

(b) the Contractor shall, subject to his complying

with the requirements of Clause 82, be paid the
amount of such Cost.
Test Results 57.13 The Contractor shall supply to the Engineer as

required by the Specification certificates of the
results of tests on and inspection of Plant and
Materials carried out at the place of manufacture or
fabrication or on the Site or elsewhere.
62 September 2020
Inspection and 57.14 The Engineer shall be entitled at all reasonable times
Testing during during manufacture to inspect, examine and test on
Manufacture the Contractor's premises or elsewhere the materials
to be incorporated within the Plant and Materials,
labour who will undertake the manufacture of the
Plant and Materials and completed components of the
Plant and Materials and if part of the Plant and
Materials is being manufactured on other premises
the Contractor shall obtain for the Engineer
permission to inspect, examine and test as if the Plant
and Materials were being manufactured on the
Contractor's premises. Such inspection,
examination or testing, if made, shall not release the
Contractor from any obligation under the Contract.
Testing before 57.15 Parts of the Plant and Materials shall be tested
Delivery before delivery to Site as provided for in the
Specification or as may be agreed with the Engineer.
The Contractor shall give reasonable notice in
writing to the Engineer of the date on which, and the
place at which, any parts of the Plant and Materials
will be tested, as provided in the Contract, and
unless the Engineer attends at the place so named
within 21 Days of the date which the Contractor has
stated in his notice, the Contractor may proceed with
the tests which shall be deemed to have been made
in the Engineer's presence and shall forthwith
forward to the Engineer duly certified copies of the
test results and readings. The Engineer shall give
the Contractor not less than twenty four hours notice
in writing of his intention to attend the tests.
57.16 As and when any parts of the Plant and Materials

shall have passed the tests referred to in this Clause
57 the Engineer shall certify in writing to that effect.
No part of the Plant and Materials subject to testing
shall be either incorporated or used in the Works
unless such a certificate has previously been
furnished.
57.17 The Engineer shall also have the right to inspect the
packing of parts of the Plant and Materials before
despatch from the manufacturer's premises. The
Contractor shall notify the Engineer when he
anticipates packed parts of the Plant and Materials
will be ready for inspection. The Engineer shall
notify the Contractor either that he waives inspection
or that he will inspect the said part of the Plant and
Materials.
Delivery 57.18 The Contractor shall apply in writing to the Engineer

for permission to deliver any Plant and Materials or
63 September 2020
Contractor's Equipment to the Site. No Plant and

Materials or Contractor's Equipment may be
delivered to the Site without the Engineer's written
permission. The Contractor shall be responsible for
the reception on Site of Plant and Materials and
Contractor's Equipment.
Records of Levels 58.1 The Contractor shall keep records of levels and
and Dimensions dimensions during the course of the Execution of the
Works in an Approved form and shall submit records
as and when required by the Engineer.
Access to Site and 59.1 The Engineer and any person authorised by him in
Places of writing shall at all times have access to the Works and
Manufacture to the Site and to all places where work is being
executed or whence Plant and Materials and
Contractor’s Equipment are being supplied for the
Works and the Contractor shall afford every facility for
and every assistance in obtaining such access. The
Contractor shall provide all necessary assistance and
facilities both on and off the Site to enable the
Engineer to verify that the Quality Plan is being
properly and fully implemented and/or to conduct
quality audits.
Examination of 60.1 No work shall be covered up or made unavailable for

Work before testing or examining without consent of the Engineer
Covering Up and the Contractor shall afford full opportunity for the
Engineer to examine and measure any work which is
about to be covered up or made unavailable before
permanent work is placed thereon.
60.2 The Contractor shall give due notice to the Engineer

whenever any such work is ready or about to be
ready for examination and the Engineer will without
unreasonable delay attend for the purposes of
examining and measuring such work unless he
considers it unnecessary and advises the Contractor
accordingly. Provided that if the Engineer does
delay unreasonably in attending for the said
purposes, the Engineer shall be deemed so to have
advised the Contractor and the Contractor shall
proceed with the Works accordingly.
60.3 The Contractor shall uncover any part or parts of the

Works or make openings in or through the same as
the Engineer may from time to time direct and shall
reinstate and make good such part or parts to the
satisfaction of the Engineer. If any such part or
parts have been covered up or made unavailable
after compliance with the requirements of Clause
60.2 and are found to be executed in accordance
64 September 2020
with the Contract, the Engineer shall take any delay

which the Contractor may suffer in uncovering and
making good the same into account in determining
any extension of time to which the Contractor is
entitled under Clause 68.1 and the Cost of
uncovering and making good the same shall be
borne by the Employer. Provided that in any other
case no extension of time shall be granted in respect
of such delay and all such Cost shall be borne by the
Contractor and shall be recoverable from him by the
Employer.
Removal of 61.1 The Engineer shall during the progress of the Works
Improper Plant and have power to order in writing from time to time:
Materials
(a) the removal from the Site, within such time or
times as may be specified in the order, of any
Plant and Materials which in the opinion of the
Engineer are not in accordance with the
Contract;
(b) the substitution of proper and suitable Plant

and Materials;
(c) the removal and proper re-execution,

notwithstanding any previous tests thereof, of
any work done which in respect of Plant and
Materials or workmanship is not in the opinion
of the Engineer in accordance with the
Contract.
Default of 61.2 In case of default on the part of the Contractor in

Contractor in carrying out such order the Employer shall be
Compliance entitled to employ other Persons and pay such other
Persons to carry out the same and all expenses
consequent thereon or incidental thereto shall be
borne by the Contractor and shall be recoverable
from him by the Employer or may be deducted by the
Employer from any monies due or which may
become due to the Contractor.
Failure to 61.3 Failure of the Engineer or any person acting on his

Disapprove not behalf to disapprove any work or Plant and Materials
Final shall not prejudice the power of the Engineer
subsequently to disapprove any work or Plant and
Materials.
Tests on 62.1 The Contractor shall give to the Engineer 10 Days

Completion notice in writing of the date when he will be ready to
make the Tests on Completion on the Works or, as
the case may be, on each part of the Works and on
each Section. Unless otherwise agreed the tests
65 September 2020
shall take place within 10 Days after the said date at

such time as the Engineer shall in writing notify the
Contractor.
62.2 If the Engineer fails to appoint a time after having

been asked to do so or to attend at any time or place
duly appointed for making the Tests on Completion,
the Contractor shall be entitled to proceed in his
absence and the said tests shall be deemed to have
been made in the presence of the Engineer.
Delay by 62.3 If in the opinion of the Engineer the Contractor

Contractor unduly delays in giving notice under Clause 62.1, or
unduly prolongs the carrying out of the Tests on
Completion, the Engineer may by notice in writing
call upon the Contractor to make such tests within 10
Days from the receipt of the said notice and the
Contractor shall make the said tests on such a Day
within the said 10 Days as the Contractor may fix
and of which he shall give notice to the Engineer. If
the Contractor fails to make any such tests within the
time aforesaid the Engineer may make the tests or
cause them to be made by others. All tests so
made by or on behalf of the Engineer shall be at the
risk and expense of the Contractor unless the
Contractor shall establish that the tests were not
being unduly delayed in which case tests so made
shall be at the risk and expense of the Employer.
62.4 The Contractor shall carry out the Tests on

Completion in accordance with the Specification and
shall provide such labour, materials, stores, test
equipment, tools, instruments, apparatus and
assistance as are required for the tests. The
Contractor shall be responsible for the provision of
such electricity, fuel, water and other consumable
materials as may be reasonably required to carry out
such tests efficiently, unless and to the extent that
other arrangements are described in the
Specification or may be Approved. If it is not
possible to complete these tests prior to use of any
part of the Works by the Employer or the Engineer
considers that carrying out the Tests on Completion
prior to use by the Employer is, for any reason, not
desirable then the Employer may agree that these
tests shall be done after handing-over. The
procedure for carrying out Tests on Completion will
be Approved after the Engineer has held discussions
with the Employer and the Contractor.
Notification of 62.5 On completion of each of the Tests on Completion

Results the Contractor shall supply as required by the
66 September 2020
Specification certificates of the results of the test and

the Engineer shall, if the part of the Works or the
Section tested fulfils the requirements of the
Contract, inform the Contractor, in writing,
accordingly.
Retesting 62.6 If the Works or any Section or any part of the Works
fail or fails to pass the Tests on Completion applicable
thereto the Contractor shall at his own expense:
(a) ascertain the cause of such failure;
(b) submit to the Engineer for Approval his

proposals for the rectification work required in
order to eliminate such cause; and
(c) upon receiving Approval of such proposals,

carry out the rectification work therein
described.
The Engineer or the Contractor may then require the

Tests on Completion to be repeated at the expense of
the Contractor.
Consequences of 62.7 If the Works or any Section or any part of the Works
Failure to Pass fail or fails to pass any repetition of the Tests on
Tests on Completion applicable thereto carried out pursuant
Completion to Clause 62.6, the Engineer shall, after due
consultation with the Employer and the Contractor,
be entitled:
(a) to order a repetition of the procedure

described in Clause 62.6, including a second
repetition of the applicable Tests on
Completion; or
(b) if the Employer so wishes, to issue a

Certificate of Completion for the Works, or for
the Section or part which has failed the
applicable Tests on Completion,
notwithstanding that the Works or the Section
or part are or is not complete. The Contract
Sum shall then be reduced by an amount
determined by the Engineer as representing
a fair and reasonable reduction in all the
circumstances. Such determination by the
Engineer shall be binding on the Contractor
unless and until revised by an arbitrator
pursuant to Clause 103.
62.8 If the Works, the Section or the part of the Works

67 September 2020
subjected to a second repetition of the applicable

Tests on Completion in accordance with Clause
62.7(a) fails to pass the same, the Engineer shall,
after due consultation with the Employer and the
Contractor, be entitled:
(a) to adopt the course set out in Clause 62.7(b);

or
(b) to order the Contractor to remove the work or

Plant and Materials for such failure and
replace the same to the Engineer's
satisfaction, all at the Contractor's own
expense; or
(c) to order the Contractor to carry out additional

work in order to overcome or compensate for
the defect responsible for such failure, such
additional work to be undertaken at the
Contractor's own expense and completed to
the satisfaction of the Engineer.
Use by the 62.9 In considering the results of Tests on Completion the

Employer Engineer shall make allowances for the effect of any
use of the Works by the Employer on the performance
or other characteristics of the Works.
62.10 Without prejudice to the generality of Clause 2.9, no

witnessing by the Engineer of any Test on Completion
and no participation by the Engineer in the carrying
out of any Test on Completion shall release the
Contractor from any of his liabilities or obligations
under the Contract.
Marine Works 63.1 The Contractor shall provide and maintain to the
satisfaction of the Engineer efficient ship-keepers for
all floating plant and marine platforms and other
marine craft and shall display such lights, flags,
signals and markings as may be required by the
Marine Department for the safety of vessels, craft
and the public.
63.2 The Contractor shall provide, remove and replace

such buoys, moorings and fastenings as may be
required for effectually securing the floating plant
during the Execution of the Works and also such
mark-buoys as may be deemed necessary by the
Marine Department to warn vessels or craft of the
existence of submerged portions of the Works.
63.3 If any of the floating plant and marine platforms and

other marine craft shall be sunk or become derelict
68 September 2020
from any cause whatsoever within the limits of Hong

Kong the Contractor shall raise or remove the same
efficiently with all possible dispatch and until the same
is raised or removed the Contractor shall set all such
buoys and display at Night such lights and do all such
things for the safety of navigation as may be
necessary or proper or required by the Marine
Department or by the Engineer.
63.4 In the event of the Contractor not carrying out the

obligations imposed upon him by Clause 63.3 the
Employer may take steps to remove such sunken or
derelict floating plant and marine platforms and other
marine craft and to buoy and light the same and the
Contractor shall refund to the Employer all Costs and
charges incurred in this connection.
63.5 Sunken floating plant and marine platforms and other

marine craft which is insured shall not be agreed as a
total or constructive total loss without the consent of
the Employer and the fact that it has been declared a
total or constructive total loss shall not absolve the
Contractor from the obligation of raising or removing
the same if instructed by the Engineer. The
Contractor shall indemnify and keep indemnified the
Employer against all expenses incurred by the
Employer in carrying out in place of the Contractor
any work required by Government pursuant to this
clause and this indemnity shall extend to any
expenses of Government in carrying out such work
itself for which the Employer may be liable and shall
throughout the period of the Contract against any
expense or loss sustained by the Employer and
against all losses and claims for injuries or damage to
any person or any property whatsoever and against
all claims, demands, proceedings, damages, Costs,
charges and expenses arising out of or in relation to
any such matters.
COMMENCEMENT TIME AND DELAY
Commencement of 64.1 The Contractor shall, unless instructed otherwise by

Works the Engineer, commence the Execution of the Works
within 7 Days of the Date for Commencement.
Thereafter the Contractor shall proceed with the
Execution of the Works with due diligence and
expedition and without delay in accordance with the
Contract.
65.1 The Contractor shall be informed of the Designated

69 September 2020
Contractor who shall have possession of the Site

throughout the Execution of the Works.
Possession of Site 65.2 Save in so far as the Contract prescribes the extent
to which the Contractor shall be allowed to enter
portions of the Site from time to time and the order in
which entry to such portions shall be permitted and
subject to any requirement in the Contract as to the
order in which the Works shall be carried out, the
Contractor shall be permitted to enter and to work on
so much of the Site as may be required to enable the
Contractor to commence and proceed with the
Execution of the Works in accordance with the
Master Programme and/or the Co-ordinated
Installation Programme and the Contractor shall be
permitted to enter and to work on such further
portions of the Site as may be required to enable the
Contractor to proceed with the Execution of the
Works with due despatch in accordance with the
said programmes.
65.3 The Contractor shall be provided with the services,

facilities and other matters described as "General
Attendance" and "Special Attendance" in the
Specification.
65.4 The Contractor shall ensure that all of the work force
engaged in the Execution of the Works on the Site
comply with all reasonable requirements and
directions of the Designated Contractor who has
possession of the Site including, without prejudice to
the generality of this requirement, all such
requirements and directions relating to security,
safety and all related matters in respect of the Site.
Delay to Contractor 65.5 If the Contractor suffers delay or incurs Cost as a

result of the absence of permission to enter and to
work on portions of the Site in accordance with the
terms of Clause 65.2 then:


70 September 2020

65.6 If during the progress of the Works the Contractor

proposes a revision to the Master Programme and/or
the Installation Programme and/or the Co-ordinated
Installation Programme and the Engineer gives
Approval to a new programme incorporating such
revision and as a consequence any date for the giving
of permission to enter and to work on part of the Site
is required to be varied the Employer will use all
reasonable endeavours to provide access on the new
dates. Should the Employer be unable for any
reason whatsoever to permit entry onto and work on
the portions of the Site on the dates required by the
Contractor then the Contractor shall adjust his
programme to meet the rights of entry which can be
procured, such adjustment to be made (subject to
Clause 65.5) at no extra cost to the Employer.
65.7 If the Contract provides that the Contractor is to be

given possession of any land for the purpose of the
Works then, subject to any other provision of the
Contract, the Contractor shall be given such
possession as may be required to enable him to
commence and proceed with the Execution of the
Works in accordance with the Contractor's Master
Programme and/or Installation Programme and/or the
Co-ordinated Installation Programme. The
Contractor shall have full responsibility for security,
safety and all other matters in respect of such land.
65.8 Clause 65.5 shall apply to delay or Cost suffered or

incurred by the Contractor in the event of a failure by
the Employer to give possession in accordance with
the Contract in the same manner as it applies to
delay or Cost suffered or incurred as a consequence
of absence of permission to enter and work on the
Site.
Access to Site 65.9 The Employer shall provide reasonable access in the
form of a road or railway suitable for the transport of
all parts of the Plant and Materials and Contractor's
Equipment necessary for the Execution of the Works
from an adequate public thoroughfare or railway
available to the Contractor to the point on the Site
where it is to be delivered or used. If a building,
structure, foundation or approach is to be provided by
the Employer under the contract such building,
structure, foundation or approach shall be in a
condition suitable for the efficient transport, reception,
71 September 2020
construction, installation and maintenance of the

Works. Provided that such access shall be suitable
for normal loads carried by the public highway or
railway and that any extraordinary traffic or special
load movements under Clauses 35.1 and 35.2 shall
be detailed in the Installation Programme prepared
under Clause 15.4.
Accommodation 66.1 The Contractor shall provide at his own expense any
for the Works additional land or buildings outside the Site which are
required by him for the purposes of the Works.
66.2 Should the Contractor require additional land or

buildings outside the Site he shall notify the Engineer
of the intended location but shall not complete his
arrangements for obtaining the additional land or
buildings until the Employer has given his approval
which shall not be unreasonably withheld. The land
or buildings in the possession of the Contractor or
sub-contractors at the date of the Letter of
Acceptance shall not be covered by this clause.
Completion 67.1 In the Contract there are set out dates by which:
Obligations
(a) substantial completion of the Works; and
(b) substantial completion of Sections; and
(c) substantial completion of specified parts of the

Works; and
(d) a specified degree of completion of specified

parts of the Works,
are to be achieved. The Contractor shall achieve

such Completion Obligations by the dates specified
or such dates as may be substituted therefor in
accordance with Clause 68 or Clause 69.
Achievement of 67.2 In the Contract there are set out dates by which
Milestones Milestones are to be achieved. If and so often as
any Milestone shall not be achieved on or before the
date for the achievement thereof then the provisions
of Clauses 84.4 to 84.8 shall take effect.
Notwithstanding any provisions of these Conditions
of Contract, the obligation of the Contractor to make
payments and the right of the Employer to make
deductions under Clause 70 in respect of any failure
by the Contractor to achieve a Completion
Obligation shall not be prejudiced or in any way
affected by virtue of such failure also constituting the
non-achievement of a Milestone. The Engineer
72 September 2020
shall notify the Contractor in writing when a

Milestone has been achieved.
Alteration of Time 68.1 If the Contractor is or is likely to be delayed in

for Completion achieving a Completion Obligation by reason of:
(a) delay by the Employer or the Engineer in

providing information or giving Approval at the
times agreed under any programme Approved
pursuant to Clause 15, or in giving the
Contractor permission to enter a portion or
portions of the Site in accordance with Clause
65.2 and/or possession of a part or parts of the
Site in accordance with Clause 65.7; or
(b) any Variation under Clause 79; or
(c) delay by the Engineer in providing drawings or

specifications or instructions pursuant to Clause
7.4; or
(d) delay by, or any unreasonable requirement of,

the Engineer in giving consent or withdrawing
consent previously given to the Contractor's
proposed methods of manufacture, construction
or installation referred to in Clause 16; or
(e) delay resulting from any Excepted Risk, as

referred to in Clause 22.6; or
(f) encountering physical conditions or artificial

obstructions as provided in Clause 38.3; or
(g) delay of a kind referred to in Clauses 6.2, 9.7,

19.2, 37.2, 46.6, 46.7, 51.2, 57.12, 60.3, 65.5,
74.4, 74.6, 77.1 or 99.1; or
(h) any delay occasioned by a suspension ordered

under Clause 72 unless the suspension order
was the result of a breach of Contract or other
default of the Contractor or those for whom the
Contractor is responsible under the Contract; or
(i) delay caused by the hoisting of a typhoon signal

of number 8 or above or the hoisting of the Black
Rain Storm Warning but not for other weather
conditions or circumstances arising from
weather conditions; or
(j) any disturbance to the progress of the Works for

which the Employer or the Engineer is
73 September 2020
responsible other than disturbances of the kinds

mentioned in (a) to (i) above
and whether such delay occurs before or after the

time or extended time fixed for achieving such
Completion Obligation then as soon as is reasonable
after receipt by the Engineer of particulars in
accordance with Clause 68.3, and subject to Clause
68.4 and to Clause 69, either prospectively or
retrospectively the time for achieving such Completion
Obligation shall be extended by such period as in the
opinion of the Engineer may be justified and the dates
set out in the Contract for achieving such Completion
Obligation shall be amended accordingly by the
Engineer who shall notify the Contractor in writing of
the amended date.
68.2 If by reason of a Variation or a Change ordered under

Clause 79 the Engineer shall consider it reasonable
for there to be an earlier date for achievement of a
Completion Obligation such earlier date shall be the
date for achieving the Completion Obligation and the
Engineer shall so notify the Contractor in writing.
68.3 The Contractor shall within 28 Days after the cause of

any delay has arisen or as soon thereafter as is
reasonable in all the circumstances deliver to the
Engineer full and detailed particulars of any claim for
an extension of time he wishes to make in respect of
such delay.
68.4 The Engineer shall upon the issue of a Certificate of

Completion in accordance with Clause 74 review all
the events of the kind referred to in Clause 68.1 which
may have occurred and of which particulars shall
have been given to him as aforesaid and shall grant
and certify to the Contractor such further extension of
time (if any) for the achievement of the relevant
Completion Obligation or Obligations as in the opinion
of the Engineer may be justified.
Rate of Progress 69.1 The Contractor shall satisfy the Engineer that the
whole of the Plant and Materials and Contractor's
Equipment and labour to be provided by the
Contractor and the method, manner and speed of the
Execution of the Works are adequate to enable the
Completion Obligations to be achieved.
69.2 Should the rate of the progress of the Works or any

part thereof be at any time in the opinion of the
Engineer too slow to ensure the achievement of any
74 September 2020
Completion Obligation in circumstances where the

Contractor is not entitled to an alteration in the time for
achieving the Completion Obligation in accordance
with Clause 68 the Engineer shall so notify the
Contractor in writing and the Contractor shall propose
and subject to Approval take such steps (including the
instruction of delay recovery measures under any
sub-contract) as are necessary to expedite progress
so as to achieve the Completion Obligation. If the
Contractor's proposals will not in the opinion of the
Engineer be such as to permit the achievement of the
Completion Obligation, or if the Contractor fails to
propose steps to expedite progress within 14 Days of
receiving notice from the Engineer as aforesaid, then
the Engineer may require the Contractor to implement
such steps as the Engineer thinks fit, and the
Contractor shall promptly comply. The Contractor
shall not be entitled to any additional payment for
taking such steps.
Delay Recovery 69.3 If in the opinion of the Engineer a delay to the

Measures achievement of a Completion Obligation caused by a
matter described in Clause 68.1(a)-(j) might be
overcome by the Contractor taking certain measures
(hereinafter referred to as "delay recovery
measures") then the Engineer may instruct the
Contractor to provide proposals for delay recovery
measures specifying that the Completion Obligations
shall be achieved either on the date fixed in
accordance with the Contract disregarding the
entirety of the said delay or on some later date.
The Contractor's proposals shall specify:
(a) the nature of the delay recovery measures

which the Contractor would propose to adopt;
and
(b) the Contractor's proposed price for those

measures in accordance with Clause 69.9.
69.4 Within 14 Days of receipt by the Contractor of an

instruction in accordance with Clause 69.3 the
Contractor shall supply to the Engineer the
information set out in Clause 69.3(a) and (b) failing
which the Engineer may without further consultation
require the Contractor to implement such delay
recovery measures as the Engineer thinks fit, and the
Contractor shall promptly comply.
69.5 Upon receipt of the proposals supplied by the

Contractor under Clause 69.4 the Engineer may
request consultation with the Contractor and, if so
75 September 2020
requested, the Contractor shall undertake the

necessary consultation with the Engineer and/or
other contractors engaged by the Employer
concerning the delay recovery measures. The
Contractor shall provide such further information in
connection with his proposals as the Engineer may
reasonably require.
69.6 Following such consultation the Engineer may:
(a) instruct the Contractor to take the delay

recovery measures proposed in accordance
with Clause 69.3 or any modified delay
recovery measures which the Engineer
considers to be appropriate, and the Contractor
shall carry out the delay recovery measures as
instructed with due diligence; or
(b) seek further proposals in accordance with

Clause 69.3; or
(c) decide not to instruct delay recovery measures

at all or for the time being.
69.7 Subject to Clause 69.8 the date for achieving the

Completion Obligation in respect of which the delay
recovery measures are instructed in accordance with
Clause 69.4 or Clause 69.6 shall be the date
specified in the Engineer's instruction under Clause
69.3 and the date set out in the Contract for
achieving such Completion Obligation shall be
deemed to have been amended accordingly.
69.8 If, in the Contractor's opinion, the delay recovery

measures instructed by the Engineer will not allow the
relevant Completion Obligation to be achieved by the
date referred to in Clause 69.7 then as soon as that
shall be reasonably apparent to the Contractor he
shall deliver to the Engineer full and detailed
particulars showing the date when the Completion
Obligation will be achieved. The Engineer shall
within 14 Days after receiving such particulars issue a
decision to the Contractor either confirming the date
referred to in Clause 69.7 or extending (either
prospectively or retrospectively) the time for achieving
such Completion Obligation by such period as in the
opinion of the Engineer may be justified having regard
to the matters set out in Clause 68.1 (a)-(j), the
efficacy of the delay recovery measures and whether
the Contractor has complied with his obligations to
proceed with due diligence.
76 September 2020
69.9 The price to be paid for delay recovery measures, if

not agreed between the Engineer and the Contractor
shall be fixed in the following manner by the
Engineer. The price shall be the amount by which
the Cost to the Contractor of executing the Works
including the delay recovery measures exceeds the
Cost which the Contractor would have incurred in
executing the Works without the delay recovery
measures to which there shall be added the average
percentage profit which the Contractor is able to
demonstrate to the satisfaction of the Engineer was
applied in arriving at the Contract Sum. The price
for delay recovery measures shall be added to the
Contract Sum for the purpose of determining the
final amount due from the Employer to the
Contractor and shall be included in interim payments
certified by the Engineer pursuant to Clause 86.1 in
such manner as may be agreed or, failing
agreement, in such manner as the Engineer may
determine.
69.10 If in any case the Engineer is of the opinion that it is

necessary, in order to secure the achievement of a
Completion Obligation, for him to instruct the
Contractor to implement steps to expedite progress
under Clause 69.2 or delay recovery measures
under Clause 69.4 or Clause 69.6(a) but the
Engineer is not able, at the time he forms such
opinion, to establish whether the cause of the delay
is a matter described in Clause 68.1(a)-(j), then the
Engineer may issue an instruction jointly under
Clause 69.2 and Clause 69.4 (or, if appropriate,
Clause 69.6(a)) and the Contractor shall forthwith
comply with such instruction. When the Engineer is
in a position to determine whether some or all of the
delay was caused by a matter described in Clause
68.1(a)-(j), the Engineer shall make his
determination and notify the Contractor of the same.
If his determination is that the whole of the delay was
so caused, the price payable by the Employer for the
delay recovery measures shall be arrived at in
accordance with Clause 69.9. If the Engineer’s
determination is that a part of the delay was so
caused, the Engineer shall fix the price which would
have been payable by the Employer to the
Contractor pursuant to Clause 69.9 if the whole of
the delay was so caused, and the Employer shall
then pay the same proportion of that price to the
Contractor as the part of the delay so caused bears
to the whole of the delay which gave rise to the said
instruction. In relation to any part of the delay
which the Engineer determines was not so caused,
77 September 2020
the instruction of the relevant delay recovery

measures shall, once such determination has been
made, be treated for all purposes as an instruction
given under Clause 69.2.
69.11 Without prejudice to the generality of Clause 2.9, the

Contractor acknowledges that no instruction given by
the Engineer under Clause 69.2, Clause 69.4, Clause
69.6(a) or Clause 69.10 and no consequences or
alleged consequences of any such instruction or of
compliance by the Contractor with any such
instruction shall in any way relieve the Contractor of
any Completion Obligation.
Damages 70.1 Each Completion Obligation is a separate obligation

of the Contractor.
Cost of Breach 70.2 Breach of any Completion Obligation will result in the
Employer suffering losses which may include (but
shall not be limited to) any or all of:
(a) the Cost of the increased time spent by the

Employer and the Engineer's administrative and
supervisory staff on the Site;
(b) the incurring of liability to make payments to

Designated Contractors and Interfacing
Contractors or to other Persons with whom the
Employer may have entered into contracts
concerning further developments on or
associated with the Site or the Works or parts
thereof;
(c) loss of revenue arising from the operation of the

Railway or the Railway under Construction
because of a delay to completion of the Railway
under Construction or parts thereof.
Liquidated 70.3 The Contractor recognises:

Damages and
Losses (a) that the losses caused by the breach of a
Completion Obligation in respect of a specified
part of the Works which is also a part of a
Section may be different from and additional to
the losses which arise out of or in connection
with a breach of the separate Completion
Obligation in respect of that Section;
(b) that the losses caused by the breach of a

Completion Obligation in respect of a Section
may be different from and additional to the
losses which arise out of or in connection with a
78 September 2020
breach of any separate Completion Obligation in

respect of the whole of the Works;
(c) that the liquidated damages for breach of any

Completion Obligation in respect of the Works
have been assessed and specified by reference
to the loss which the Employer may suffer if any
part of the Works remains incomplete
irrespective of the relative size of the
uncompleted part compared with the completed
part and irrespective of whether the completed
part or any of it has been taken into the
possession of the Employer; and
(d) that the level of liquidated damages for the

Works is such that such damages are less than
the Employer's estimation of the full loss which
the Employer may suffer if, by reason of the
failure of the Contractor to complete the Works
on time, there is a delay to completion of the
Railway under Construction.
Rate of Liquidated 70.4 Where a rate of liquidated damages is specified in

Damages the Appendix to the Form of Tender in respect of a
Completion Obligation then in the event of a breach
of such Completion Obligation the Contractor shall
pay or allow to the Employer liquidated damages for
delay calculated at the rate stated in the Appendix in
respect of each Day which elapses between the date
set for achievement of such Completion Obligation
and the date when the substantial completion or the
specified degree of completion required by the
Completion Obligation is achieved.
70.5 In the case of any Completion Obligation in relation

to which no liquidated damages are specified in the
Contract the damages which will be payable by the
Contractor to the Employer for a breach of the
Completion Obligation shall be general damages to
compensate the Employer for the consequences of
the breach of the Completion Obligation. Without
prejudice to and pending final resolution of any
dispute between the parties as to a breach of a
Completion Obligation or as to the amount of loss or
damage suffered, the Employer shall be entitled to
immediate payment from the Contractor of general
damages under this clause if the Engineer shall
certify that in his opinion there has been a breach of
the relevant Completion Obligation. The sum which
the Employer shall be paid or allowed following such
certification shall be such sum as the Engineer shall
79 September 2020
bona fide estimate to be the amount of the loss or

damage which the Employer has suffered and will
suffer in the future as a consequence of the breach
of the Completion Obligation. The Engineer may,
from time to time, revise his estimate of the loss or
damage which has been suffered and will be
suffered by the Employer. Estimates made by the
Engineer shall be binding on the Contractor unless
and until revised by the Engineer, or by an arbitrator
pursuant to Clause 103.
Set-Off 70.6 The Employer shall be entitled to deduct from any

sums due or which become due to the Contractor,
and to retain, the amount of any liquidated damages
becoming due pursuant to Clause 70.4 and the
amount of any general damages claimed pursuant to
Clause 70.5 or Clause 101.5. Such entitlement to
deduct is without prejudice to the Employer's right to
recover such damages from the Contractor by any
other means.
General Damages 70.7 If the Contractor is in breach of more than one

in Addition Completion Obligation at the same time then while
such a situation continues:
(a) where liquidated damages are specified in

respect of one or more such Completion
Obligations the liquidated damages payable
shall be the sum of the liquidated damages for
each such Completion Obligation; and
(b) in addition to any liquidated damages which are

payable, the Employer may claim general
damages for the breach of any such Completion
Obligation for which no liquidated damages are
specified.
70.8 The Contractor recognizes that if, in advance of the

completion of any Section or of any part of the
Works, the Engineer shall certify as substantially
complete any part of that Section or of that part of
the Works, the loss and damage which the Employer
will suffer as a result of a delay in the completion of
the whole of the Section or of the part of the Works
will not be materially reduced. Accordingly the
Contractor expressly agrees that, if delay should
occur in the achievement of substantial completion,
or of a specified degree of completion, of a Section
or part of the Works in circumstances where some
part of that Section or part was completed within the
period allowed by the Contract, the Employer shall
remain entitled to the full amount of liquidated and/or
80 September 2020
general damages to which he would have been

entitled upon a failure to achieve substantial
completion or the requisite specified degree of
completion of the whole of the Section or part; and
that in such circumstances the said damages will
provide a fair and reasonable recompense and will
not operate as a penalty.
70.9 The provisions of this Clause 70.9 shall apply when

the Contractor is in breach of a Completion Obligation
for which liquidated damages are specified and the
Engineer requires the Contractor to allow access to
another contractor under Clause 71. In such a case:
(a) the Contractor will remain liable to pay the

relevant liquidated damages for the Days until
the Day before the Day specified in the
Engineer's notice under Clause 71;
(b) the Contractor shall have no liability to pay the

relevant liquidated damages for the Days from
the Day when access is provided to the other
contractor in accordance with the Engineer's
notice under Clause 71;
(c) in place of the liability to pay the liquidated

damages referred to in sub-clause (b) above
the Contractor shall be liable to pay general
damages to compensate the Employer for the
consequences of the delay from that Day until
substantial completion or the specified degree
of completion (as the case may be) is
achieved: for the avoidance of doubt the
general damages payable shall include any
claim by the other contractor against the
Employer for the additional expense caused to
that other contractor by working on the Site in
the circumstances brought about by the
exercise of the Employer's rights under Clause
71.
This Clause 70.9 shall not affect the Contractor's

obligation to pay liquidated damages for any breach
of the Completion Obligation in respect of the whole
of the Works which shall continue notwithstanding
the exercise of the rights under Clause 71.
70.10 Where, at a time when the Contractor has failed to

achieve a Completion Obligation, an event of the
type described in paragraphs (a), (b), (c), (d), (f), (g),
(h) or (j) of Clause 68.1 occurs which causes further
delay to the achievement of the substantial
81 September 2020
completion or the specified degree of completion

required by the relevant Completion Obligation, then
the period of delay which is attributable to such an
event will be omitted from any calculation of
liquidated damages to be paid or allowed pursuant
to Clauses 70.4 and 70.6 and from any calculation of
the general damages to be paid or allowed pursuant
to Clauses 70.5 and 70.6.
Aggregate of all 70.11 The aggregate of all damages (liquidated and

Damages general) for delay shall not exceed the maximum
amount of damages (if any) specified in the Appendix
to the Form of Tender.
Compulsory 71.1 Without prejudice to any other rights or remedies of

Access to the Site the Employer or any other power of the Engineer, if
for Subsequent the Contractor is in breach of a Completion Obligation
Contractors for a Section or a specified part of the Works the
Engineer may at any time serve a notice on the
Contractor which specifies:
(a) the name of a Designated Contractor or

Interfacing Contractor or other Person who
requires access to the Section or to the
specified part of the Works to carry out other
work;
(b) the part of the Site to which access is required;
(c) the Day from which the Contractor shall start to

allow access in accordance with this Clause
71.1.
71.2 After service of the notice specified in Clause 71.1:
(a) the Contractor shall retain possession of the

Site and shall continue to execute the Works
whilst allowing the Designated Contractor or
Interfacing Contractor or other Person to have
access in accordance with the notice;
(b) the Contractor shall have no claim for

compensation in respect of any delay,
disruption or any expense whatsoever which
the Contractor may suffer as a consequence of
compliance with his obligations under this
clause;
(c) the Contractor shall be required to co-operate

82 September 2020
and co-ordinate with the Engineer and the

Designated Contractor or Interfacing Contractor
or other Person to allow the Designated or
Interfacing Contractor or other Person to
execute his works in the most efficient manner
which the circumstances may permit.
Suspension of 72.1 The Contractor shall on the written order of the

Works Engineer suspend the progress of the Works or any
part or Section thereof for such time or times and in
such manner as the Engineer may consider
necessary and shall during such suspension
properly protect and secure the Works so far as is
necessary in the opinion of the Engineer.
72.2 If such suspension is:
(a) otherwise provided for in the Contract; or
(b) necessary for the proper Execution of the Works

or by reason of weather conditions unavoidably
affecting the safety or quality of the Works or by
reason of some default on the part of the
Contractor; or
(c) necessary for the safety of the Works or any

part thereof,
the Contractor shall himself (subject to Clause 68.1(i))

be responsible for any delay which is caused by such
suspension and shall himself bear any Cost resulting
from such suspension. Provided that if and to the
extent that such suspension does not meet the criteria
set out in sub-clauses (a) to (c) above, and such
suspension causes the Contractor to suffer delay or
incur Cost, then:
(d) if such delay is greater than that which the

(e) if such Cost is greater than that which the

83 September 2020

Suspension 73.1 If:

Lasting more than
90 Days (a) on the written order of the Engineer given under
Clause 72.1 (hereinafter referred to as a
"suspension order") the progress of the Works
as a whole, or alternatively the progress of any
one Section or part of the Works, shall be
suspended for a period of 90 Days or for
consecutive periods (but all in relation either to
the Works as a whole or to the same one Section
or part) amounting in all to 90 Days; or
(b) the Engineer, having previously issued a

suspension order for a period which has lasted
less than 90 Days, shall thereafter issue a
further suspension order or orders (either in
respect of the whole of the Works or, where a
previous suspension order has affected only a
part or a Section, a further suspension order
affecting or including that part or Section) which
has or have the effect in aggregate of
suspending the whole or that part or Section of
the Works for a total period of 90 Days,
then and in any such case the Contractor may serve a

written notice on the Engineer requiring permission
within 28 Days from the receipt of the notice to
proceed with the Works or with that part or Section
thereof in regard to which progress is suspended. If
such permission is not granted within the 28 Day
period, the Contractor by a further notice so served
may (but is not bound to) elect to treat the
suspension, where it affects a part or a Section only of
the Works, as an omission of such part or Section
under Clause 79.1, or where it affects the whole of the
Works as an abandonment of the Contract by the
Employer. If the Engineer grants such permission
the Contractor shall within the said 28 Days proceed
with the Works or with the said part or Section thereof
and shall not treat the suspension as omission or
abandonment.
73.2 Clause 73.1 shall not apply in a case where the Works
have been suspended by reason of some default on
the part of the Contractor.
CERTIFICATION ON COMPLETION
Certificate of 74.1 When the Contractor shall consider that the whole of
84 September 2020
Completion of the Works has been substantially completed and has

Works satisfactorily passed any Tests on Completion that
may be prescribed by the Contract he may give a
notice to that effect to the Engineer or the Engineer's
Representative accompanied by a list of all such
work which in the opinion of the Contractor is
outstanding. The Contractor shall undertake to finish
any outstanding work during the Defects Liability
Period. Such notice, list and undertaking shall be in
writing and in such form as the Engineer may
prescribe and shall be deemed to be a request by
the Contractor for the Engineer to issue a Certificate
of Completion in respect of the Works and the
Engineer shall within 21 Days of the date of delivery
of such notice either issue to the Contractor (with a
copy to the Employer) a Certificate of Completion
stating the date on which in his opinion the Works
were substantially completed in accordance with the
Contract or else give instructions in writing to the
Contractor specifying all the work which in the
Engineer's opinion requires to be done by the
Contractor before the issue of such certificate. If
the Engineer shall give such instructions the
Contractor shall be entitled to receive such
Certificate of Completion within 21 Days of
completion to the satisfaction of the Engineer of the
work specified by the said instructions.
Completion of 74.2 Similarly in accordance with the procedure set out in

Sections and Clause 74.1 the Contractor may request and the
Occupied Parts Engineer shall, when satisfied (and save in a case
where another provision of the Contract stipulates
otherwise), issue a Certificate of Completion in
respect of:
(a) any Section in respect of which a date for

substantial completion is provided in the
Contract;
(b) any specified part of the Works in respect of

which a date for substantial completion is
provided in the Contract; and
(c) any substantial part of the Works which has

been both substantially completed to the
satisfaction of the Engineer and occupied or
used by the Employer provided that occupation
and/or use by a Designated Contractor or an
Interfacing Contractor or other Person shall not
amount to occupation or use by the Employer.
Completion of 74.3 If the Engineer shall be of the opinion that any part of
85 September 2020
Other Parts of the Works shall have been substantially completed

Works and shall have satisfactorily passed any Tests on
Completion that may be prescribed by the Contract
he may issue a Certificate of Completion in respect
of that part of the Works before completion of the
whole of the Works and upon the issue of such
certificate the Contractor shall be deemed to have
undertaken to complete any outstanding work in that
part of the Works during the Defects Liability Period
for that part of the Works.
Works subject to 74.4 Where the Works or any Section or part thereof are
Buildings subject to the Buildings Ordinance then the Works or
Ordinance any such Section or part shall not be considered to be
substantially completed at any time before the
granting of an occupation permit or temporary
occupation permit or any other equivalent permit or
approval under the Buildings Ordinance in respect
thereof. The time for completion of the Works or any
such Section or part shall be deemed to include time
for:
(a) all inspections required; and
(b) the obtaining of all certificates required; and
(c) the completion of all other matters required to be

completed
prior to the grant of the occupation permit or

temporary occupation permit or any other equivalent
permit or approval under the Buildings Ordinance,
and also to include time for the period between the
application for and the grant of such permit or
approval. If the occupation permit or the temporary
approval under the Buildings Ordinance shall be the
only matter preventing the Works, Section or part
from being complete and if there shall be a delay to
the obtaining of an occupation permit or temporary
approval under the Buildings Ordinance beyond that
which could be reasonably foreseen by an
experienced contractor at the date of the Letter of
Clarification which is caused by any person for
whom the Employer is responsible under the
Contract (which for this purpose alone shall include
delay by any Government or any department of
Government or any other statutory body) then the
Contractor is entitled under Clause 68.1.
86 September 2020
74.5 If, in the opinion of the Engineer, it shall be beneficial

for any reason for the Employer to have the ability to
use the Works or any part or Section thereof before
the issue of a Certificate of Completion for the Works
or such part or Section then the Engineer may
instruct the Contractor to take such steps as may be
necessary to allow the Employer to make use of the
Works or such part or Section and the Contractor
shall take such steps and shall allow the Employer to
have the use of the Works or such part or Section.
74.6 If compliance with his obligations under Clause 74.5

shall cause the Contractor to suffer delay or incur
Cost, then:

in determining any extension of time to which
the Contractor is entitled under Clause 68.1;
and
(b) the Contractor shall, subject to his complying

with the requirements of Clause 82, be paid
such sum in respect of such Cost as the
Engineer considers fair in all the circumstances
and certifies for payment to the Contractor.
Handing-Over 74.7 In the event of the Employer using the Works or any
Certificate substantial part of the Works before the issue of a
Certificate of Completion (provided that occupation
and/or use by a Designated Contractor or an
Interfacing Contractor or other Person shall not
amount to occupation or use by the Employer) and
whether or not any relevant Tests on Completion or
other tests prescribed or Approved under the
Contract have been carried out and accepted, the
Engineer shall issue a Handing-Over Certificate to
the Contractor and the Employer at the time of the
Employer commencing such use. The
Handing-Over Certificate shall state details of the
part of the Works used by the Employer and the
work which in the Engineer's opinion is required to
be done by the Contractor within that part of the
Works before the issue of a Certificate of Completion
in respect of the whole of the Works or in respect of
any part of the Works which includes the part the
subject of the Handing-Over Certificate. The
Employer or the Contractor shall notify the Engineer
within 7 Days of receipt of a Handing-Over
Certificate of any disagreement and of the details in
the Handing-Over Certificate with which he
disagrees. The Employer shall assume
87 September 2020
responsibility for the care of the Works or the

relevant part of the Works in respect of which a
Handing-Over Certificate has been issued but
without prejudice to the responsibilities of the
Contractor under Clauses 22.3, 67.1 and 75.
Access Certificate 74.8 In the event of the Employer taking over the control
of access to any part of the Works prior to its use by
the Employer then the Engineer shall issue an
Access Certificate to the Contractor and the
Employer at the time of the Employer taking over
such control of access. The Access Certificate
shall identify the part of the Works in relation to
which the Employer has taken over control of
access. Such right on the part of the Employer to
take over control of access shall be limited to those
parts of the Works in relation to which the
Specification indicates that an Access Certificate
may be issued. Upon the issue of an Access
Certificate, the parties' respective obligations in
relation to care of the part of the Works which is the
subject of the Access Certificate shall, from the time
of the issue of the certificate, be as set out in Clause
22.2.
Reinstatement of 74.9 A Certificate of Completion issued under Clause 74.2

Ground or 74.3 in respect of any Section or part of the Works
before completion of the whole shall not be deemed to
certify completion of any ground or surfaces requiring
reinstatement unless such certificate shall expressly
so state.
74.10 If, by reason of any act or omission of the Employer

or the Engineer, the Contractor is prevented from
carrying out one or more of the Tests on Completion
as provided for in Clause 62, then, unless in the
meantime the Works or any Section or part thereof
shall in the opinion of the Engineer not have been
substantially completed in accordance with the
Contract (which opinion the Engineer shall
communicate to the Contractor in writing), the
Employer shall be deemed to have taken over the
Works or the relevant Section(s) or part(s) thereof
and the Engineer shall issue a Certificate of
Completion stating the tests not completed;
nevertheless the Contractor shall carry out the said
tests during the Defects Liability Period as and when
required by the Engineer by 14 Days notice in
writing. The date upon which the Employer shall be
deemed to have taken over the Works or the
relevant Section(s) or part(s) thereof under this
Clause 74.10 shall be the date on which but for the
88 September 2020
act or omission of the Employer or the Engineer the

Tests on Completion in respect of the Works or the
relevant Section(s) or part(s) might reasonably have
been expected to have been completed.
DEFECTS LIABILITY
Execution of 75.1 The Contractor shall finish the work (if any)
Outstanding Work outstanding at the date of completion (as certified by
the Engineer pursuant to Clause 74) of the Works or,
as the case may be, of any part of the Works or of any
Section within such reasonable time or times as may
be specified by the Engineer. If no such times are
specified such work shall be finished as soon as may
be practicable after such date of completion and in
any event within the relevant Defects Liability Period.
Execution of Work 75.2 The Contractor shall at his own expense execute all
of Repair work of repair, replacement, modification,
amendment, reconstruction, rectification and making
good of defects, imperfections, shrinkages or other
faults (of whatever nature and from whatever cause
the same may arise) which the Engineer shall during
the Defects Liability Period, or within 14 Days after
its expiration, require the Contractor in writing to
execute, following an inspection made by or on
behalf of the Engineer prior to the expiration of the
Defects Liability Period. Provided that in the case
of defects, imperfections, shrinkages, or other faults
which in the opinion of the Engineer result from
improper use of the Works or are otherwise caused
by the Employer the Contractor shall be entitled to
be paid by the Employer the Cost of such work of
repair, replacement, modification, amendment,
reconstruction, rectification and making good, the
amount of such Cost to be certified by the Engineer.
75.3 Any work to be carried out by the Contractor under

Clauses 75.1 and 75.2 shall (subject to the proviso to
Clause 75.2) be carried out by the Contractor at his
own expense.
75.4 If the Contractor replaces, renews or repairs any

portion of the Works during the Defects Liability
Period, the provisions of Clause 75 shall apply to the
portion of the Works so replaced, renewed or repaired
from the date when the Engineer is satisfied that the
replacement, renewal or repair has been satisfactorily
completed.
Failure to Finish 75.5 If the Contractor shall fail to do or finish any work
Work of Repair required under Clause 75 the Employer may do or
89 September 2020
have the work done at the Contractor's risk and

expense and may deduct any expense incurred by the
Employer in so doing from any monies due or to
become due from the Employer to the Contractor
under the Contract. That right on the part of the
Employer shall be without prejudice to any other rights
which the Employer may have against the Contractor
in respect of the failure of the Contractor to finish such
work or remedy such defects.
75.6 If the replacements, renewals or repairs are of such a

character as may affect the efficiency of the Works or
any part thereof, the Engineer may within 28 Days of
such replacement, renewal or repair give to the
Contractor notice in writing requiring that Tests on
Completion be made or repeated in which case such
tests shall be carried out as provided in Clause 62.
75.7 Where any work required under Clause 75 could

interfere with any use of the Railway, the Railway
under Construction, the Works or any part thereof by
the Employer the Contractor shall execute such work
having regard to such use and in a manner and at
times Approved so as to avoid such interference or so
as to minimise such interference to the Engineer's
satisfaction.
Defects Correction 75.8 Upon the expiration of the Defects Liability Period or
Certificate where there is more than one such period upon the
expiration of the latest such period and when all
outstanding work referred to in Clause 74 and all
work of repair, modification, replacement,
amendment, reconstruction, rectification and making
good of defects, imperfections, shrinkages or other
faults referred to in Clause 75 shall have been
completed the Engineer shall issue to the Employer
(with a copy to the Contractor) a Defects Correction
Certificate stating the date on which the Contractor
shall have completed his obligations to execute and
complete the Works and correct defects therein to
the Engineer's satisfaction.
Unfulfilled 75.9 The issue of the Defects Correction Certificate shall

Obligations not be taken as releasing either the Contractor or the
Employer from any unfulfilled obligations which the
one owes to the other under or in connection with the
Contract.
Temporary 76.1 If in the course or for the purpose of the Execution of

Reinstatement the Works or of the execution of any part of the Works
or of any Section any highway or road or way shall
have been broken into, then notwithstanding anything
90 September 2020
herein contained:
(a) if the permanent reinstatement of such highway

or other road or way is to be carried out by the
appropriate authority or by some Person other
than the Contractor or any sub-contractor to
him, the Contractor shall at his own Cost and
independently of any requirement of or notice
from the Engineer, be responsible for the
making good of any subsidence or shrinkage or
other defect, imperfection, settlement or fault in
the temporary reinstatement of such highway
or other road or way and for the execution of
any necessary repair or amendment thereof
from whatever cause the necessity arises until
the end of the Defects Liability Period in
respect of the Works or the part or Section
thereof as the case may be which is located
beneath or over such highway or other road or
way or until the authority or such other Person
as aforesaid shall have taken possession of the
Site for the purpose of carrying out permanent
reinstatement, whichever is the earlier, and
shall indemnify and save harmless the
Employer against and from any damage or
injury to the Employer or to third parties arising
out or in consequence of any neglect or failure
of the Contractor to comply with the foregoing
obligations or any of them, and against and
from all claims, demands, proceedings,
damages, Costs, charges and expenses
whatsoever in respect thereof or in relation
thereto;
(b) as from the end of such Defects Liability Period

or the taking of possession as aforesaid,
whichever shall first happen, the Employer shall
indemnify and save harmless the Contractor
against and from any damage or injury as
aforesaid arising out or in consequence of or in
connection with the said permanent
reinstatement or any defect, imperfection or
failure of or in such permanent reinstatement
and against and from all claims, demands,
expenses whatsoever in respect thereof or in
relation thereto.
76.2 Where the authority or other Person referred to in

Clause 76.1 shall take possession of the Site as
aforesaid in sections or lengths the responsibility of
the Contractor under Clause 76.1 shall cease in
91 September 2020
regard to any such section or length at the time

possession thereof is so taken but shall during the
continuance of the said Defects Liability Period
continue in regard to any section or length of which
possession has not been taken and the indemnities
given by the Contractor and Employer respectively
under the said clause shall be construed and have
effect accordingly.
Contractor to 77.1 The Contractor shall if required by the Engineer in

Search for Defects writing search for the cause of any defect imperfection
or fault under the direction of the Engineer. If the
Contractor shall suffer delay or incur Cost in
undertaking such search, then (unless such defect,
imperfection or fault shall be one for which the
Contractor is liable under the Contract):


If such defect, imperfection or fault shall be one for

which the Contractor is liable the Contractor shall be
entitled to no extension of time under Clause 68.1
and the Cost of the work carried out in searching
shall be borne by the Contractor who shall in such
case repair rectify and make good such defect,
imperfection or fault at his own expense.
77.2 In the event that a defect, imperfection or fault for

which the Contractor is liable is discovered in the
course of a search under Clause 77.1 and further
searches are instructed by the Engineer to establish
the extent of such defect, imperfection or fault, the
Costs of the further searches shall be borne by the
Contractor regardless of the results of the further
searches.
Assignment of 78.1 This clause shall apply when any sub-contractor or

92 September 2020
Warranties and supplier (or any sub-sub-contractor or sub-supplier of

Guarantees any level) gives to the Contractor any guarantee,
warranty or other similar contractual undertaking in
respect of any part of the Works. If at the end of the
Defects Liability Period in respect of a part of the
Works covered by such an undertaking the
undertaking shall remain in force in accordance with
its terms, then the Contractor shall, unless the
Employer otherwise specifies in writing, assign the
benefit of the undertaking to the Employer.
Notwithstanding that there may have been an
assignment of the Contractor's rights under the
undertaking by the Contractor to the Employer under
this clause, the responsibility of the Contractor in
respect of the part of the Works covered by the
undertaking shall not be affected. The Contractor
shall remain wholly responsible to the Employer in
respect of matters for which the Contractor is liable
under the Contract.
78.2 The Contractor shall include in any sub-contract

entered into by the Contractor in relation to the
Works or any part thereof a condition imposing upon
the sub-contractor appointed by that sub-contract an
obligation to ensure that any guarantee, warranty, or
undertaking given or to be given by the
sub-contractor in respect of any part of the Works
shall be given on terms that the benefit thereof shall,
upon the expiry of the Defects Liability Period in
respect of such part of the Works, be assigned to the
Employer. The Contractor shall procure that such
condition shall also be included in any
sub-sub-contract and so on, such that the aforesaid
obligation is passed on to sub-sub-contractors and
sub-suppliers of every level.
VARIATIONS AND CHANGES
Variations 79.1 The Engineer shall:
(a) order any Variation which may in his opinion be

necessary for the completion of, or for the
achievement of a specified degree of completion
of, the Works or any part or any Section thereof,
and
(b) have power to order any Variation (including

without limitation, a modification or revocation
of a Variation previously ordered by him) which
for any other reason shall in his opinion be
desirable for the satisfactory completion and
functioning of the Works or any part thereof or
93 September 2020
any Section, or on aesthetic grounds.
Ordered Variation 79.2 No Variation or Change shall be made by the

or Change to be in Contractor without an order by the Engineer. All
writing such orders shall be given in writing, provided that if
for any reason the Engineer shall find it necessary to
give any such order orally in the first instance the
Contractor shall comply with such oral order. Such
oral order shall be confirmed in writing by the
Engineer as soon as is possible in the
circumstances. If the Contractor shall confirm in
writing to the Engineer any such oral order by the
Engineer and such confirmation shall not be
contradicted in writing by the Engineer within 7 Days
of the Engineer's receipt of the same, such oral order
shall be deemed to be an order in writing by the
Engineer. No Variation or Change ordered or
deemed to be ordered in writing in accordance with
this Clause 79 shall in any way vitiate or invalidate
the Contract. The value of all Variations,
ascertained in accordance with Clause 80, shall be
taken into account in ascertaining the amount of the
Contract Price and to the extent that any Variation
causes the Contractor to suffer delay greater than
that which the Contractor could reasonably have
foreseen at the date of the Letter of Clarification the
Contractor is entitled under Clause 68.1.
Contractor to 79.3 The Engineer may pursuant to this Clause 79.3 give
Propose Estimates to the Contractor written details of any proposed
Variation before ordering the same. In that event,
the Contractor shall within 14 Days (or such other
period as the Engineer may in writing allow) of the
Engineer providing such written details of the
proposed Variation notify the Engineer in writing
whether in his opinion the Variation would, if ordered,
(a) give rise to any change in the Contract Price

under Clause 80; or
(b) give rise to any entitlement to an extension of

time for achieving any Completion Obligation
under Clause 68.1; or
(c) affect any programme referred to in Clause 15;

or
(d) give rise to any entitlement to additional payment

under any provision of the Contract; or
94 September 2020
(e) affect the warranties of the Contractor set out in

Clause 11.1;
and shall at the same time indicate what amendments

(if any) would be required to the Approved Design
Data in order to reflect the proposed Variation.
Variations in respect of which the Engineer operates
the procedure set out in this Clause 79.3 shall also fall
to be valued in accordance with Clause 80.
Changes 79.4 Subject to Clauses 79.7 to 79.9, the Engineer may in

his absolute discretion order a Change in the following
circumstances:
(a) when so requested in writing by the Contractor

in circumstances where in the Engineer's
opinion the Contractor will fail to meet any of
his obligations under the Contract relating to
the Works if such Change is not ordered; or
(b) when, following a notice in writing from the

Engineer to the Contractor stating that, in the
Engineer's opinion, the Contractor will fail to
meet any of his obligations relating to the quality
and quantity of the Works, or will remain in
breach thereof, if such Change is not ordered,
the Contractor fails within a reasonable time to
request in writing such Change; or
(c) when so requested in writing by the Contractor

and the Engineer is satisfied that there shall be
no reduction in the standard or quality of the
Works or any part or Section thereof or any
impairment of their performance arising out of
such Change.
79.5 Any request made by the Contractor for a Change

shall be in writing stating:
(a) full particulars of the Change requested;
(b) details of the anticipated saving in time and/or of

the anticipated reduction in the Contract Price (if
any) and the Contractor's proposals (if any) for
consequential revisions of any programme
referred to in Clause 15 and/or of the Contract
Price;
(c) in the case of a request pursuant to Clause

79.4(a), the circumstances leading to (or which
would lead to) the breach or anticipated breach
and the measures taken or to be taken in order
95 September 2020
to avert such breach or to mitigate the

consequences thereof; and
(d) in the case of a request pursuant to Clause 79.4

(c), that the Change, if implemented, would not
result in any reduction in the standard or quality
of the Works or in any way prejudice the
performance by the Contractor of his obligations
under the Contract.
79.6 If so requested by the Engineer, the Contractor shall

submit further information and documents to enable
the Engineer to appreciate fully the proposed Change
and its implications.
79.7 If in the Engineer's opinion it is desirable that the

proposed Change be implemented, the Engineer shall
issue an order recording the Change and the
anticipated saving in time and/or the anticipated
reduction in the Contract Price (if any) resulting
therefrom, and the Contractor shall implement the
Change. Following implementation of the Change
the Engineer shall:
(a) where the implementation of the Change should

in his opinion have reduced the time required for
the achievement of any Completion Obligation,
notify the Contractor pursuant to Clause 68.2 of
such earlier date for the achievement of the
same as he shall consider reasonable; and
(b) where the implementation of the Change shall

in his opinion have effected a saving in the Cost
of the Works to the Contractor, notify the
Contractor that the Contract Price will be
reduced by such amount as shall in the
Engineer's opinion be reasonable, and the
Contract Price will be reduced accordingly.
79.8 Except to the extent otherwise agreed in writing no

Change shall entitle the Contractor to any additional
payment or extension of time or any other form of
compensation or relief under the Contract or
otherwise.
Amending the 79.9 The Contractor shall, in respect of any Variation or

Design Data Change ordered pursuant to this Clause 79, amend
any Approved Design Data affected by such
Variation or Change in order that the Design Data
shall properly reflect such Variation or Change, and
shall submit such amended Design Data to the
96 September 2020
Engineer for Approval in accordance with the

procedure set out in Clause 9.
Valuation of 80.1 The value of all Variations ordered by the Engineer

Variations and in accordance with Clause 79 and of all other items
Other Items of of work required by these Conditions to be valued in
Work accordance with this Clause 80 shall be ascertained
by the Engineer after consultation with the
Contractor in accordance with the following
principles. Where work in the opinion of the
Engineer is of similar character and executed under
similar conditions to work priced in the Pricing
Document it shall be valued at such rates and prices
contained therein as may be applicable. Provided
that if the nature or extent of any Variation or of any
other item of work falling to be valued under this
Clause 80 relative to the nature or extent of the
whole of the Works or to any part thereof shall be
such that in the opinion of the Engineer or the
Contractor any rate or price contained in the
Contract for any item of work is rendered
unreasonable or inapplicable either the Engineer
shall give to the Contractor or the Contractor shall
give to the Engineer notice before the work to be
valued in accordance with this Clause 80 is
commenced or as soon thereafter as is reasonable
in all the circumstances that such rate or price
should be varied and the Engineer shall fix such rate
or price as in the circumstances he shall think
reasonable and proper.
Engineer to Fix 80.2 Where work in the opinion of the Engineer is not of a
Rates similar character or is not executed under similar
conditions the rates and prices in the Pricing
Document shall be used as the basis for valuation so
far as may be reasonable failing which a fair valuation
shall be made. Failing agreement between the
Engineer and the Contractor as to any rate or price to
be applied in any valuation under this Clause 80 the
Engineer shall determine the rate or price in
accordance with the foregoing principles and he shall
notify the Contractor accordingly.
80.3 If the Contractor intends to claim a higher rate or

price than the rate or price notified to him by the
Engineer pursuant to Clause 80.1 or Clause 80.2 the
Contractor shall within 28 Days after such
notification give notice in writing of his intention to
claim failing which the Contractor shall be deemed to
have accepted the rate or price notified to him.
80.4 If the Engineer shall make any Variation in any part

97 September 2020
of the Works such reasonable notice in writing shall

be given to the Contractor as will enable him to
make his arrangements accordingly, and in a case
where any part of the Works affected by the
Variation is already manufactured or is already in the
course of manufacture, or any matter done or
drawing or pattern made requires to be altered, a
reasonable sum in respect thereof shall be allowed
by the Engineer.
Daywork 81.1 The Engineer may if in his opinion it is necessary or

desirable order in writing that any additional or
substituted work shall be executed on a daywork
basis. The Contractor shall then be paid for such
work at the rates and prices for daywork set out in the
Contract.
81.2 The Contractor shall, in respect of any work to be

executed on a daywork basis, furnish to the Engineer
such receipts or other vouchers as may be necessary
to prove the amounts paid and before ordering
materials shall submit to the Engineer quotations for
the same for his Approval.
81.3 In respect of all work executed on a daywork basis

the Contractor shall during the continuance of such
work deliver each Day to the Engineer's
Representative an exact list in duplicate of the
names, occupations and times of all workmen
employed on such work and a statement also in
duplicate showing the description and quantity of all
Plant and Materials and Contractor's Equipment
used thereon or therefor. One copy of each list and
statement will if correct or when agreed be signed by
the Engineer's Representative and returned to the
Contractor. At the end of each Month the
Contractor shall deliver to the Engineer's
Representative a priced statement of the labour,
Plant and Materials and Contractor's Equipment
used and the Contractor shall not be entitled to any
payment unless such lists and statements have
been fully and punctually rendered. Provided
always that if the Engineer shall consider that for any
reason the sending of such list or statement by the
Contractor in accordance with the foregoing
provisions was impracticable he shall nevertheless
be entitled to authorise payment for such work either
as daywork (on being satisfied as to the time
employed and Plant and Materials and Contractor's
Equipment used on such work) or at such value
therefor as he shall consider fair and reasonable.
98 September 2020
81.4 The Engineer shall have power at any time to order

the cessation of any work previously required to be
done on a daywork basis and the resumption of the
same work as a Variation pursuant to Clause 79.1.
Notice of Claims 82.1 If the Contractor intends to claim any additional

payment pursuant to any clause entitling him to do
so other than Clause 80 he shall give notice in
writing of his intention to the Engineer within 28 Days
of the happening of the event or events giving rise to
the claim, stating in such notice pursuant to which
clause or clauses his claim is made. With effect
from the happening of such event or events the
Contractor shall keep such contemporary records as
may reasonably be necessary to support any claim
he may subsequently wish to make.
Contemporary 82.2 Without admitting the Employer's liability the Engineer

Records may upon receipt of a notice under Clause 80.3 or
82.1 as the case may be instruct the Contractor to
keep such contemporary records or further
contemporary records as the case may be as are
reasonable and may be material to the claim of which
notice has been given and the Contractor shall keep
such records. The Contractor shall permit the
Engineer to inspect all records kept pursuant to
Clause 80 or Clause 82 as the case may be and shall
supply him with copies thereof as and when the
Engineer shall so instruct.
Interim Account 82.3 After the giving of a notice to the Engineer under
Clause 80.3 or 82.1 as the case may be the
Contractor shall as soon as is reasonable in all the
circumstances send to the Engineer a first interim
account giving full and detailed particulars of the
amount claimed to that date and of the grounds upon
which the claim is based together with full particulars
of any benefits or advantages whether direct or
indirect which shall have accrued or may be expected
to accrue to the Contractor in consequence of the
circumstances giving rise to the Contractor's claim for
additional payment. Thereafter at such intervals as
the Engineer may reasonably require the Contractor
shall send to the Engineer further up to date accounts
giving the accumulated total of the claim and any
further grounds upon which it is based together with
up to date particulars of the said benefits or
advantages.
82.4 If the Contractor fails to comply with any of the

provisions of Clauses 82.1 to 82.3 in respect of any
99 September 2020
claim which he shall seek to make then the

Contractor shall not be entitled to any payment in
respect of such claim save only to the extent that the
Engineer is satisfied that the Engineer has not been
substantially prejudiced by such failure in conducting
his investigation. If the Engineer is so satisfied, he
shall certify for payment to the Contractor such sum
in relation to the Contractor's claim as appears to
him fair in all the circumstances.
82.5 The Contractor shall be entitled to have included in

any interim payment certified by the Engineer
pursuant to Clause 86.1 such amount in respect of
any claim as the Engineer may consider due to the
Contractor provided that the Contractor shall have
supplied sufficient particulars to enable the Engineer
to determine the amount due. If such particulars are
insufficient to substantiate the whole of the claim the
Contractor shall be entitled to payment in respect of
such part of the claim as the particulars may
substantiate to the satisfaction of the Engineer. The
Contractor shall not be entitled to claim nor shall the
Engineer certify any payment in respect of interest
charges on additional payments claimed pursuant to
Clause 82 or any other clause of the Contract.
MEASUREMENT
Application 83.1 To the extent that the Works or any part of the Works
are stated in the Pricing Document as being subject to
admeasurement the Special Conditions of Contract
appended to these Conditions will apply to the Works
or any part of the Works so identified.
CERTIFICATION AND PAYMENT
Interim Payment 84.1 The Pricing Document is divided into Cost Centres
as set out therein. The value of the Cost Centre in
each case shall be the total amount shown for that
Cost Centre in the Pricing Document adjusted to
reflect:
(a) the deduction of all amounts shown against that

Cost Centre in the Pricing Document for
daywork, Prime Cost Items and Provisional
Sums (including allowances for profit and
attendance in respect of such amounts); and
(b) the addition of the following amounts:
(i) any amount which is in accordance with

Clause 97.8 to be included in the Contract
100 September 2020
Price in respect of work to be executed or

Plant and Materials or services to be
supplied, where the execution of such work
or the supply of such Plant and Materials or
services falls within that Cost Centre; and
(ii) amounts to cover instructions for the

expenditure of Provisional Sums or of
sums set against Prime Cost Items on work
comprised within that Cost Centre other
than amounts covered by Clause
84.1(b)(i); and
(iii) any amount which shall be due to the

Contractor in respect of that Cost Centre
pursuant to any claim for a higher rate or
price made in accordance with Clause
80.3; and
(c) the valuation in accordance with Clause 80 of

any Variations to work, and of any other items of
work, falling within that Cost Centre, and/or any
reductions in the Contract Price resulting from
Changes pursuant to Clause 79.7(b) which affect
that Cost Centre.
Amount to be 84.2 Subject to the provisions of Clauses 84.3, 84.4 and

Certified 84.5 the amount certified for payment in the Interim
Payment Certificate in respect of each Valuation
Period issued in accordance with Clause 86.1 shall be
calculated by applying to the value of each Cost
Centre the percentage shown in the Interim Payment
Schedule for the relevant Cost Centre in respect of
that Valuation Period.
84.3 Subject to Clause 84.4 the amount certified in an

Interim Payment Certificate for a Cost Centre in
respect of the Valuation Period in which a Milestone is
due to be achieved or in respect of the Valuation
Period in which the Milestone is actually achieved (if
that is later) shall be the Milestone Percentage of the
value of the relevant Cost Centre. The percentage of
the value of the relevant Cost Centre included in
amounts certified in Interim Payment Certificates in
respect of each subsequent Valuation Period (subject
to the achievement of subsequent Milestones) shall
be in accordance with the sequence of percentages
shown following the Milestone Percentage in the
relevant Interim Payment Schedule.
Failure to Achieve 84.4 If any Milestone shall not be achieved by the end of
Milestone the Valuation Period in which it is due to be achieved,
101 September 2020
then:
(a) the Engineer shall not include the Milestone

Percentage of the value of the relevant Cost
Centre for that Milestone in the amount certified
in any Interim Payment Certificate issued by him
in respect of that Valuation Period or in respect
of any subsequent Valuation Period until the
Interim Payment Certificate in respect of the
Valuation Period in which the Milestone is
achieved; and
(b) the Engineer shall not include in any Interim

Payment Certificate issued by him in respect
of that Valuation Period any percentage of the
value of the relevant Cost Centre which is
greater than the percentage appearing in the
relevant Interim Payment Schedule
immediately before the relevant Milestone
Percentage.
84.5 Following the achievement of a Milestone the

certification of payments in respect of the relevant
Cost Centre shall proceed in accordance with Clause
84.3.
Revision to Interim 84.6 If at any time after a Milestone relating to a particular

Payment Schedule Cost Centre has been achieved at a date later than
Percentages that specified in the relevant Milestone Schedule the
Contractor:
(a) submits to the Engineer a new programme being

a revised version of the Master Programme or
the Installation Programme which receives
Approval demonstrating how he proposes to
comply with the Completion Obligations for that
Cost Centre in accordance with the Contract;
and
(b) demonstrates that he has worked in accordance

with such Approved programme for a period of 2
Months following its Approval or such lesser
period as the Engineer may in his absolute
discretion consider to be acceptable,
then the Engineer shall revise the dates for

achievement of the Milestones relating to that Cost
Centre in the relevant Milestone Schedule so far as
may be necessary in order that such dates shall
accurately reflect:
(i) the date by which the next Milestone following

102 September 2020
the previously non-achieved Milestone is

programmed to be achieved; and
(ii) the programmed date for any subsequent

Milestone which, in the opinion of the Engineer,
will not be achieved by the due date for that
Milestone in the unrevised Milestone Schedule;
and the percentages shown in the relevant Interim

Payment Schedule for the Valuation Periods between
Milestones shall be adjusted to reflect the value of the
work expected to be executed in accordance with the
Master Programme or the Installation Programme.
Revision to Interim 84.7 In addition to the revision of any Interim Payment

Payment and Schedule and any Milestone Schedule in accordance
Milestone with Clause 84.6, in the event that:
Schedules
(a) the Engineer shall approve any revision or
revisions to the Master Programme or the
Installation Programme pursuant to Clause 15
entailing a significant change to the sequence
and timing of the Works or any part or Section
thereof;
(b) the Engineer grants an extension of time in

accordance with Clause 68.1 or notifies an
earlier date for achievement of a Completion
Obligation pursuant to Clause 68.2;
(c) the Contractor shall adopt delay recovery

measures in accordance with Clause 69.4,
Clause 69.6 or Clause 69.10;
(d) the Engineer shall order a suspension of the

Works or any part thereof; or
(e) there shall be a significant change to the value

of the Cost Centre to which such Interim
Payment Schedule and Milestone Schedule
relate,
the Engineer may, on giving to the Contractor not

less than 14 Days prior notice in writing, carry out a
detailed examination and review of the relevant
Milestone Schedules and Interim Payment
Schedules and an interim valuation of the Works in
order to ascertain whether the Interim Payment
Schedules and the Milestone Schedules properly
103 September 2020
reflect the value of the work done or to be done

during the period of the Contract and afford the
Engineer a sufficient degree of control over
payment. The Contractor shall co-operate with and
to the best of his ability assist the Engineer in
making such detailed examination and interim
valuation and shall provide all such information as
the Engineer may reasonably require in connection
therewith. If as a result of this detailed examination
the Engineer forms the opinion that the Interim
Payment Schedules and the Milestone Schedules
do not properly reflect the value of the work done or
to be done or provide the degree of control required
then the Engineer may give 14 Days notice to the
Contractor of his intention to prepare revised Interim
Payment Schedules and Milestone Schedules which
will in his opinion properly reflect the progress and
value of the Works already executed and thereafter
to be executed. On the expiration of the said notice
and after considering any representation the
Contractor may have made in the meantime the
Engineer shall if he is still of the opinion that revised
Interim Payment Schedules and Milestone
Schedules ought to be prepared, revise the Interim
Payment Schedules and the Milestone Schedules
accordingly.
84.8 If in the Contractor's opinion any revised Interim

Payment Schedule or Milestone Schedule does not
fairly reflect the change in circumstances which
brought about the revision he may give notice in
writing together with detailed evidence to the
Engineer who shall within 28 Days of receipt thereof
either confirm the revised Interim Payment Schedule
and Milestone Schedule issued pursuant to Clause
84.6 or 84.7 or issue a substitute if he so thinks fit.
Interim Statements 85.1 At the end of each Valuation Period the Contractor
may apply to the Engineer for an Interim Payment
Certificate. Each such application shall state the
amount claimed broken down into:
(a) the amounts claimed in accordance with Clause

84; and
(b) any amounts claimed pursuant to other clauses

of these Conditions which entitle the Contractor
to claim additional payments.
Contract Price not 85.2 The rates and prices in the Pricing Document shall not
Subject to Variation be adjusted in respect of any increase or decrease of
104 September 2020
Cost to the Contractor in carrying out the Works by

reason of any of the following happening subsequent
to the date of the Form of Tender:
(a) an alteration in the rates of wages and

allowances payable to labour or a change in the
conditions of employment thereof; or
(b) a change in the Cost of Plant and Materials,

consumable stores, fuel and power; or
(c) a variation in the rates of freight and insurance

or in the incidence of or rates of customs duties
or landing charges; or
(d) the operation of any Enactment; or
(e) a variation in the Cost of any other matter or

thing of whatsoever nature; or
(f) any other matter or thing in relation to which

there is no provision in the Contract for an
increase in the said rates and prices.
Certification for 86.1 The Engineer shall certify within 30 Days from
Interim Payment receipt of the Contractor's particulars under Clause
85.1 the amount payable by the Employer to the
Contractor by way of interim payment. Such
amount shall be the payment due determined in
accordance with Clause 84 plus the value of
dayworks ordered pursuant to Clause 81 plus any
sums considered due by the Engineer pursuant to
Clause 82 less retention calculated at the
percentage named in the Appendix to the Form of
Tender until the limit of the Retention Money named
in the Appendix to the Form of Tender has been
reached and less any amounts certified for payment
in any Interim Payment Certificate previously issued.
Release of 87.1 If the Engineer shall issue a Certificate of

Retention Money Completion in respect of any Section or any part of
the Works pursuant to Clause 74.2 or 74.3 the
Engineer shall within 7 Days of the date of issue of
such certificate or within 7 Days of the date of receipt
by the Engineer of all of the as-built drawings and
operation and maintenance manuals (if any) in an
approved form in relation to that Section or part,
whichever shall be later, certify a sum for payment to
the Contractor. The said sum shall be one half of
that part of the Retention Money which bears the
same proportion to the whole of the Retention
Money as the value of such Section or part at the
105 September 2020
date of the Letter of Acceptance bears to the

Contract Sum (such value being stated in or
ascertainable from the Pricing Document).
Provided that the aggregate of all sums certified
pursuant to this Clause 87.1 shall not exceed one
half of the Retention Money.
87.2 One half of the Retention Money less any sums paid
pursuant to Clause 87.1 shall be certified for payment
by the Engineer within 7 Days of the date of issue of a
Certificate of Completion for the whole of the Works
pursuant to Clause 74.1 or within 7 Days of the date of
receipt by the Engineer of the last of the as-built
drawing and operation and maintenance manuals (if
any) in relation to the Works whichever shall be later.
87.3 A further quarter of the Retention Money shall be

certified for payment by the Engineer within 7 Days of
the date of issue of the Defects Correction Certificate
to the Employer or within 7 Days of the date of receipt
referred to in Clause 87.2 above, whichever shall be
the later. The last quarter of the Retention Money
shall be certified for payment by the Engineer within 7
Days of the date of receipt by the Engineer of the
Contractor's final account inclusive of all claims, or
within 7 Days of the date of receipt referred to in
Clause 87.2 above, whichever shall be the later.
Application for 88.1 Not later than 90 Days after the date of issue of the
Final Payment Defects Correction Certificate to the Employer, the
Contractor shall submit to the Engineer a statement
of final account and supporting documentation
showing in detail the value in accordance with the
Contract of the work done in accordance with the
Contract together with all further sums which the
Contractor considers to be due to him under the
Contract up to the date of the Defects Correction
Certificate.
Final Certificate 88.2 Within 90 Days of receipt of the Contractor's

statement of final account and of all information
reasonably required for its verification, the Engineer
shall issue a final certificate stating what is in his
opinion the amount of the Contract Price and stating
the balance, if any, due from the Employer to the
Contractor or from the Contractor to the Employer as
the case may be. Any balance due from the
Contractor to the Employer shall be paid by the
Contractor within 30 Days of the date of the certificate.
Correction and 89.1 The Engineer shall have power to omit from any
106 September 2020
Withholding of certificate the value of any work done, Plant and

Certificate Materials supplied or services rendered with which he
may for the time being be dissatisfied and for that
purpose or for any other reason which to him may
seem proper may by any certificate delete, correct or
modify any sum previously certified by him.
Payments of 90.1 Unless varied by a separate financial agreement

Certified Amounts payment of the amounts from time to time certified by
the Engineer (subject to any bona-fide set-off or
counter-claim of the Employer or any right under the
Contract for the Employer to make deductions from
sums due to the Contractor) shall be made by the
Employer to the Contractor within 30 Days after the
date of issue of such certificate in accordance with
these Conditions of Contract.
Failure to Pay by 90.2 In the event of failure of the Employer to make

Employer payment of the amount due under any certificate of
the Engineer within 30 Days after the date of issue of
such certificate the Employer shall pay to the
Contractor interest upon any payment overdue
thereunder at a rate per annum equivalent to 3/4
(three quarters) per centum over the best lending rate
of the Hongkong and Shanghai Banking Corporation
Limited current on the date upon which such payment
first becomes overdue. In the event of any variation
in the said Bank lending rate being announced whilst
such payment remains overdue the interest payable
to the Contractor for the period that such payment
remains overdue shall, where necessary, be
correspondingly varied from the date of each such
variation.
90.3 Unless otherwise agreed payment shall be in Hong

Kong dollars.
PROPERTY IN CONTRACTOR'S EQUIPMENT AND

PLANT AND MATERIALS
Agreement for Hire 91.1 For the purpose of Clause 91, the expression
"agreement for hire" shall be deemed to include an
agreement for hire purchase.
Vesting of 91.2 All Contractor's Equipment owned by the Contractor

Contractor’s or by a sub-contractor or by any company in which the
Equipment Contractor or a sub-contractor has a controlling
interest (but excluding any vehicles engaged in
transporting any labour or Plant and Materials to or
from the Site) shall when on the Site be the property
of the Employer.
107 September 2020

Conditions of Hire 91.3 With a view to securing in the event of a forfeiture

of Contractor’s under Clause 101.1 the continued availability for the
Equipment purpose of executing and maintaining the Works of
any hired Contractor's Equipment the Contractor shall
not bring onto the Site any hired Contractor's
Equipment unless there is an agreement for the hire
thereof which contains a provision that the owner
thereof will on request in writing made by the
Employer within 7 Days after the date on which any
forfeiture has become effective and on the Employer
undertaking to pay all hire charges in respect thereof
from such date hire such Contractor's Equipment to
the Employer on the same terms in all respects as the
same was hired to the Contractor save that the
Employer shall be entitled to permit the use thereof by
any other contractor employed by him for the purpose
of completing the Works under the terms of Clause
101.1.
Costs 91.4 In the event of the Employer entering into any

agreement for the hire of Contractor's Equipment
pursuant to Clause 91.3 all sums properly paid by
the Employer under the provisions of any such
agreement and all expenses incurred by him
(including stamp duties) in entering into such
agreement shall be deemed for the purpose of
Clause 101 to be part of the Cost of completing the
Works.
Notification of 91.5 The Contractor shall upon request made by the

Contractor's Engineer at any time in relation to any item of
Equipment Contractor's Equipment forthwith notify to the
Ownership Engineer in writing the name and address of the
owner thereof and shall in the case of hired
Contractor's Equipment certify that the agreement for
hire thereof contains a provision in accordance with
the requirements of Clause 91.3.
Irremovability of 91.6 Subject to Clause 105.2 no Contractor's Equipment

Contractor’s or Plant and Materials or any part thereof shall be
Equipment or Plant removed from the Site without the written consent of
and Materials the Engineer which consent shall not be
unreasonably withheld where the same are no
longer immediately required for the purposes of the
completion of the Works.
Revesting and 91.7 Upon the removal from the Site of any such
Removal of Contractor's Equipment as have been deemed to
Contractor’s have become the property of the Employer under
Equipment Clause 91.2 with the consent as aforesaid or under
the provisions of Clause 105.2 the property therein
shall be deemed to revest in the Contractor and
108 September 2020
upon completion of the Works the property in the

remainder of such Contractor's Equipment as
aforesaid shall subject to Clause 101.1 revest in the
Contractor.
Disposal of 91.8 If the Contractor shall fail to remove any Contractor's

Contractor’s Equipment as required pursuant to Clause 41.1
Equipment within such reasonable time after completion of the
Works as may be allowed by the Engineer then the
Employer may:
(a) sell any which are the property of the

Contractor; and
(b) return any Contractor’s Equipment not the

property of the Contractor to the owner thereof
at the Contractor's expense;
and after deducting from any proceeds of sale the

Costs, charges and expenses of and in connection
with such sale and of and in connection with such
return as aforesaid shall pay the balance (if any) to
the Contractor but to the extent that the proceeds of
any sale are insufficient to meet all such Costs,
charges and expenses the excess shall be deductible
or recoverable by the Employer from any monies due
or that may become due to the Contractor under the
Contract or may be recovered by the Employer from
the Contractor as a debt.
Liability for Loss of 91.9 The Employer shall not at any time be liable for the
or Damage to loss of or damage to any of the Contractor's
Contractor’s Equipment which have been deemed to become the
Equipment property of the Employer under Clause 91.2 save
where such loss or damage is caused by an Excepted
Risk set out in Clauses 22.5 and 23.
Incorporation of 91.10 The provisions of Clause 91 in relation to Contractor's

Clause in Equipment or Plant and Materials brought on to the
Sub-Contracts Site by any sub-contractor shall (by reference or
otherwise) be incorporated into any sub-contract for
the execution of any part of the Works.
No Approval by 91.11 The operation of this clause shall not imply any
Vesting approval by the Engineer of the materials or other
matters referred to herein nor shall it prevent the
rejection of any such materials at any time by the
Engineer.
Vesting of Plant 92.1 Plant and Materials to be supplied pursuant to the

and Materials Contract shall vest in and become the property of the
Employer at whichever is the earlier of the following
109 September 2020
times, namely:
(a) when that Plant and Materials is delivered to

Site;
(b) when the Engineer issues an Interim Payment

Certificate including the payment which relates
to the supply or manufacture of that Plant and
Materials and which is identified in the
Specification as an item to which this Clause 92
applies;
(c) when that Plant and Materials becomes

physically attached to or incorporated in Plant
and Materials which have previously vested in
and become the property of the Employer in
accordance with Clause 92.1 (a) or (b) above.
92.2 Upon the vesting of any Plant and Materials in the

Employer the same shall become the absolute
property of the Employer and shall not be within the
ownership control or disposition of the Contractor.
Provided always that:
(a) the vesting of any Plant and Materials as

aforesaid shall be without prejudice to the
exercise of any power of the Engineer contained
in this Contract to reject any Plant and Materials
which is not in accordance with the provisions of
the Contract and upon any such rejection the
property in the rejected Plant and Materials shall
immediately revest in the Contractor; and
(b) the Contractor shall be responsible for any loss

of or damage to such Plant and Materials and
for the Cost of storing, handling and transporting
the same.
Action by 92.3 The Engineer shall, before issuing an Interim

Contractor Payment Certificate payment for an item of Plant and
Materials which is identified in the Specification as an
item to which this Clause 92 applies, have the right to
require that the Contractor shall, in relation to the
Plant and Materials which will by virtue of the issue of
such Interim Payment Certificate vest in the Employer
pursuant to Clause 92.1(b), have taken or caused the
supplier or suppliers of the said Plant and Materials to
have taken one or more of the following steps :
(a) provided to the Engineer documentary evidence

that the property in the said Plant and Materials
110 September 2020
have vested in the Contractor;
(b) suitably marked or otherwise plainly identified

the said Plant and Materials so as to show that
their destination is the Site, that they are the
property of the Employer and (where they are
not stored at the premises of the Contractor)
that they are held to the order of the Employer;
(c) set aside and stored the Plant and Materials so

marked or identified to the satisfaction of the
Engineer;
(d) sent to the Engineer a schedule listing and

giving the value of every item of Plant and
Materials so set aside and stored and inviting
him to inspect the same; and
(e) provided to the Engineer an opinion in writing

by an established and qualified lawyer in the
country where the said Plant and Materials are
situated that the actions taken by the
Contractor are sufficient to vest the property in
the said Plant and Materials in the Contractor
and to protect the same against lawful seizure
by a third party,
and if the Engineer exercises that right no sum in

respect of such item shall, notwithstanding any other
provision of the Contract, be included in an Interim
Payment Certificate until each of the steps at (a) to
(e) above which the Engineer has required to be
taken shall have been completed to the Engineer's
satisfaction.
Lien on Plant and 92.4 Neither the Contractor nor a sub-contractor nor any
Materials other Person shall have a lien on any Plant and
Materials which have vested in the Employer under
Clause 92.1 for any sum due to the Contractor,
sub-contractor or other Person and the Contractor
shall take all such steps as may reasonably be
necessary to ensure that the title of the Employer and
the exclusion of any such lien is reflected in any
sub-contract or other contractual arrangement
between the Contractor and any other Persons
dealing with any such Plant and Materials.
Delivery to the 92.5 Upon cessation of the employment of the Contractor

Employer of Vested under this Contract before the completion of the
Plant and Materials Works whether as a result of the operation of Clause
101.1, 101.6, 101.7 or 102.1 or otherwise the
Contractor shall deliver to the Employer any Plant
111 September 2020
and Materials the property in which has vested in the

Employer by virtue of Clause 92 and if he shall fail to
do so the Employer may enter any premises of the
Contractor or of any sub-contractor and remove
such Plant and Materials and recover the Costs of so
doing from the Contractor.
Incorporation in 92.6 There shall be incorporated into any sub-contract

Sub-Contracts entered into by the Contractor provisions equivalent
to those provided in Clause 92.
PROVISIONAL SUMS AND PRIME COST ITEMS
Amount of 93.1 For the purposes of Clause 84.1 the amount of each
Provisional Sum Provisional Sum together with any amounts stated in
the Pricing Document in respect of items for all other
charges and profit and for general attendance
related to Nominated Sub-Contracts shall, as at the
date of the Letter of Acceptance, be deemed to be
deducted from the total amount of the Cost Centre to
which such Provisional Sum relates. Thereafter no
part of such Provisional Sum (or of any such amount
so stated in the Pricing Document) shall be included
in or considered to form part of the Contract Price or
the total amount of the Cost Centre to which it
relates unless and until the Engineer shall issue an
order under Clause 93.2, in which event an amount
equal to the value determined in accordance with
Clause 80 or Clause 97.8, as the case may be, shall
be added to and form part of the Contract Price and
the total amount of the Cost Centre to which the
relevant Provisional Sum relates.
Use of Provisional 93.2 In respect of every Provisional Sum the Engineer

Sum shall have power to order:
(a) work to be executed, including Plant and

Materials or services to be supplied by the
Contractor (in which case the Contract Price
shall include the value of such work executed or
such Plant and Materials or services supplied
determined in accordance with Clause 80
hereof);
(b) work to be executed or Plant and Materials or

services to be supplied by a Nominated
Sub-Contractor (the sum to be paid to the
Contractor therefor to be determined in
accordance with Clause 97.8); and
(c) Plant and Materials to be supplied by the

Contractor (the sum to be paid to the Contractor
112 September 2020
therefor to be determined in accordance with

Clause 80).
Prime Cost Item 93.3 In respect of every Prime Cost Item the Contractor
shall, unless otherwise instructed in writing by the
Engineer, enter into a sub-contract for the execution
of any work or the supply of any Plant and Materials
or services included in the Prime Cost Item with a
sub-contractor nominated by the Engineer in
96.1. The Engineer shall also have power to order
the Contractor to execute any such work or to supply
any such Plant and Materials or services, in which
event the Contractor shall be paid in accordance
with the terms of a quotation submitted by him in
accordance with Clause 80.
Production of 94.1 The Contractor shall, when required by the Engineer,

Vouchers produce all quotations, invoices, vouchers and
accounts or receipts in connection with expenditure in
respect of Provisional Sums and Prime Cost Items.
SUB-CONTRACTORS
Nominated 95.1 (a) All specialists, merchants, tradesmen and others

Sub-Contractors executing any work or supplying any Plant and
Materials or services for which Provisional Sums
are included in the Contract and who have been
nominated by the Engineer pursuant to Clause
93.2(b) above; and
(b) All Persons to whom by virtue of the provisions

of Clause 93.3 above or any other provision of
the Contract the Contractor is required by the
Employer or the Engineer to sub-let any work,
shall in the execution of such work or the supply of

such Plant and Materials or services be deemed to
be sub-contractors employed by the Contractor and
are referred to in this Contract as "Nominated
Sub-Contractors".
Nominated 96.1 Upon receipt of an order from the Engineer for work
Sub-Contractors: to be executed or Plant and Materials or services to
Details be supplied by a Nominated Sub-Contractor
pursuant to Clause 93.2 or Clause 93.3, the
Contractor shall forthwith enter into a sub-contract.
96.2 The Contractor shall not be required by the Employer

or the Engineer or be deemed to be under any
obligation to employ any Nominated Sub-Contractor
against whom the Contractor may raise reasonable
113 September 2020
objection in writing.
96.3 If pursuant to Clause 96.2 the Contractor declines to

enter into any sub-contract with a sub-contractor
nominated by the Engineer or if, during the course of
a Nominated Sub-Contract, the Contractor shall
terminate the Nominated Sub-Contract or the
employment of the Nominated Sub-Contractor
thereunder in accordance with Clause 98.2 or if the
Nominated Sub-Contractor shall for any reason
determine his Nominated Sub-Contract the Engineer
shall have the power to require the execution and
completion of the work or the provision of the Plant
and Materials or services which was or were the
subject of the Nominated Sub-Contract by any of the
following means:
(a) nominating an alternative sub-contractor

(subject to Clause 96.2), in which case the
Engineer shall determine the terms of the
sub-contract to be entered into;
(b) ordering a Variation to or omission from the

Works or any part thereof in accordance with
Clause 79.1;
(c) ordering that any part of the Works may be

provided by workmen, contractors or suppliers
employed by the Employer either concurrently
with the Execution of the Works or at some other
time; and
(d) ordering the Contractor to execute or supply the

work, Plant and Materials or services in question
under Clause 93.2 (a) or (c) or 93.3, as the case
may be.
Provisions 97.1 Unless otherwise agreed by the Engineer in writing,

Relevant to the Contractor shall procure that, prior to entering
Nominated into a sub-contract with any Nominated
Sub-Contractors Sub-Contractor, such Nominated Sub-Contractor
shall have provided a warranty, under seal and
conditional only upon the Contractor entering into
such sub-contract, in the form appearing as
Appendix F hereto, with only such amendments
thereto as may have been previously Approved.
97.2 No revision shall be made to the value of the relevant

Cost Centre, nor shall the Contractor otherwise be
entitled to any payment, in respect of any instruction
issued or approval given or any other thing done by
the Contractor which increases the cost of the work,
114 September 2020
Plant and Materials or services to be executed or

supplied by any Nominated Sub-Contractor, unless
the Contractor shall first have referred the matter to
the Engineer and obtained Approval thereof. The
Contractor shall keep proper and detailed accounts
and records of all applications for payment from
and/or payments to Nominated Sub-Contractors and
shall make the same available for inspection by the
Engineer at all times.
97.3 The Engineer shall be permitted by the Contractor to

deal directly with a Nominated Sub-Contractor over
matters concerning the design or specification of the
work to be carried out or of the Plant and Materials or
services to be supplied by the Nominated
Sub-Contractor, subject to the Engineer:
(a) informing the Contractor in writing of his intention

to deal directly with the Nominated
Sub-Contractor;
(b) affording the Contractor reasonable opportunity

to attend all meetings between the Engineer and
the Nominated Sub-Contractor; and
(c) informing the Contractor of all discussions with

the Nominated Sub-Contractor to which the
Contractor shall not have been party and
sending the Contractor copies of all
correspondence, minutes and other documents
relating to such discussions or to his dealings
with the Nominated Sub-Contractor which would
not otherwise be in the possession of the
Contractor.
97.4 No Approval or instruction by the Engineer in respect

of any Nominated Sub-Contractor shall in any way
relieve the Contractor from any of his obligations or
responsibilities under the Contract.
97.5 The Contractor shall not under the sub-contract with

any Nominated Sub-Contractor consent to:
(a) the commencement of any mediation or any

arbitration proceedings prior to the completion
or alleged completion of the Works, or
(b) the Nominated Sub-Contractor entering into any

sub-sub-contracts in relation to any part of the
Works
without having first obtained the written consent

115 September 2020
thereto of the Engineer. The consent of the Engineer

shall not be unreasonably withheld or delayed.
97.6 In the event of a Nominated Sub-Contractor having

undertaken towards the Contractor, in respect of the
work executed or the Plant and Materials or services
supplied by such Nominated Sub-Contractor, any
continuing obligation extending for a period
exceeding that of the Defects Liability Period which
is applicable to the work, Plant and Materials or
services to which such continuing obligations relate,
the Contractor shall forthwith upon the expiration of
such Defects Liability Period (or, in the event of any
prior determination of the Contract or of the
Contractor's employment thereunder, forthwith upon
such determination) assign to the Employer, at the
Employer's request and expense, the benefit of such
continuing obligation for the unexpired duration
thereof.
97.7 In respect of work executed or Plant and Materials or

services supplied by any Nominated Sub-Contractor,
the Engineer shall be entitled to demand from the
Contractor reasonable proof that all such payments,
less retentions, as may be appropriate in respect of
the work, Plant and Materials or services of such
Nominated Sub-Contractor have been paid or
discharged by the Contractor, in default whereof
unless the Contractor shall:
(a) satisfy the Engineer with suitable documentary

or other evidence that he has reasonable cause
for withholding or refusing to make such
payments; and
(b) produce to the Engineer reasonable proof that

he has so informed such Nominated
Sub-Contractor in writing,
the Employer shall be entitled to pay to such

Nominated Sub-Contractor direct, upon the
certificate of the Engineer, all payments, less
retentions, provided for in the relevant sub-contract
which the Contractor has failed to make to such
Nominated Sub-Contractor and to deduct by way of
set off the amount so paid by the Employer from any
sums due or which may become due from the
Employer to the Contractor. Provided always that,
where the Engineer has certified and the Employer
has paid direct as aforesaid, the Engineer shall in
issuing any further certificate in favour of the
Contractor deduct from the amount thereof the
116 September 2020
amount so paid, but shall not withhold or delay the

issue of the certificate itself when due to be issued
under the terms of the Contract.
Valuation of Work 97.8 For all work executed or Plant and Materials or
under Provisional services supplied by any Nominated Sub-Contractor,
Sums and Prime there shall be included in the Contract Price:
Cost Items
(a) the actual price paid or due to be paid by the
Contractor, on the direction of the Engineer, and
in accordance with the Sub-Contract;
(b) the sum, if any, entered in the Pricing Document

for attendance supplied by the Contractor in
connection therewith, or if ordered by the
Engineer pursuant to sub-clauses (b) or (c) of
Clause 93.2, as may be determined by the
Engineer; and
(c) in respect of all other charges and profit, a sum

being a percentage rate of the actual price paid
or due to be paid calculated, where provision
has been made in the Pricing Document for a
rate to be set against the relevant Provisional
Sum or Prime Cost Item, at the rate inserted by
the Contractor against that Provisional Sum or
Prime Cost Item or, where no such provision has
been made, at the rate inserted by the
Contractor in the Appendix to the Form of
Tender.
and the total amount shown in the Pricing Document

for the Cost Centre which includes the work to be
executed or the Plant and Materials or services to be
supplied pursuant to the Nominated Sub-Contract in
question shall be adjusted in accordance with Clause
84.1.
97.9 Upon the entering into by the Contractor of any

Nominated Sub-Contract in accordance with Clause
96.1:
(a) the interim payment schedule (if any) included in

such sub-contract shall, for the purposes of this
Contract, be the Interim Payment Schedule for
the Cost Centre which includes the works
comprised within such sub-contract;
(b) any specification forming part of such

sub-contract shall be (and shall be deemed
always to have been) part of the Specification;
and
117 September 2020
(c) any milestone for which such sub-contract

provides shall, for the purposes of this Contract,
be a Milestone for the Cost Centre which
includes the works comprised within such
sub-contract.
Nominated 98.1 If any event arises which in the opinion of the

Sub-Contractors: Contractor justifies the exercise of his right to
Termination terminate a Nominated Sub-Contract or the
thereunder or to accept a repudiation of a Nominated
Sub-Contract by the Nominated Sub-Contractor, he
shall at once notify the Engineer in writing.
98.2 With the consent in writing of the Engineer the

Contractor may give notice to a Nominated
Sub-Contractor terminating his Nominated
Sub-Contract or his employment thereunder or
accepting a repudiation of the Nominated
Sub-Contract, as the case may be. The consent of
the Engineer shall not be unreasonably withheld or
delayed.
98.3 In the event that a Nominated Sub-Contract or the

thereunder is determined the Engineer shall forthwith
take such action under Clause 96.3 as he may
consider to be appropriate.
Delay In 99.1 If the Contractor suffers delay or incurs Cost as a

Connection with result of the nomination by the Engineer of a
Nominated proposed sub-contractor to whom the Contractor
Sub-Contractors has reasonably objected pursuant to Clause 96.2 or
as a result of a delay on the part of the Engineer in
complying with Clause 96.3, then:

(b) if such Cost is not recoverable by the Contractor

pursuant to any other provision of these
Conditions, the Contractor shall, subject to his
complying with the requirements of Clause 82,
be paid such sum in respect of such Cost as the
Engineer considers fair in all the circumstances
and certifies for payment to the Contractor.
REMEDIES AND POWERS
Urgent Repairs 100.1 If by reason of any accident or failure or other event

118 September 2020
occurring to or in connection with the Works or any

part thereof either during the Execution of the Works
or during the Defects Liability Period any remedial or
other work or repair shall in the opinion of the
Engineer be urgently necessary and the Contractor
is unable or unwilling at once to do such work or
repair the Employer may by his own or other
workmen do such work or repair as the Engineer
may consider necessary. If the work or repair so
done by the Employer is work which in the opinion of
the Engineer the Contractor was liable to do at his
own expense under the Contract all Costs and
charges properly incurred by the Employer in so
doing shall on demand be paid by the Contractor to
the Employer or may be deducted by the Employer
from any monies due or which may become due to
the Contractor. Provided always that the Engineer
shall as soon after the occurrence of any such
emergency as may be reasonably practicable notify
the Contractor thereof in writing.
Forfeiture 101.1 If the Engineer shall certify in writing to the Employer

that in his opinion the Contractor:
(a) has abandoned the Contract or a part of the

Contract; or
(b) without reasonable excuse has failed to

commence the Works or any part of the Works
in accordance with Clause 64.1 or has
suspended the progress of the Works or any
part thereof for 14 Days after receiving from the
Engineer written notice to proceed; or
(c) has failed to remove any Plant and Materials

from the Site or to pull down and replace work
for 14 Days after receiving from the Engineer
written notice that the said Plant and Materials or
work have been condemned and rejected by the
Engineer; or
(d) despite previous warning by the Engineer in

writing is failing to proceed with the Execution
of the Works or with the execution of any part of
the Works with due diligence and expedition
(and in this regard if, within 30 Days from the
giving by the Engineer of the said previous
warning, the Contractor has been unable to
prove to the Engineer's satisfaction that a
failure on the Contractor's part to work in
accordance with the Master Programme, the
Installation Programme and/or the
119 September 2020
Co-ordinated Installation Programme did not

amount to a breach of his obligation to proceed
with due diligence and expedition, then such
failure shall be deemed to amount to such a
breach, pursuant to Clause 15.8), is failing to
implement any steps to expedite progress
instructed under Clause 69.2 or delay recovery
measures required under Clause 69.4, Clause
69.6(a) or Clause 69.10 or is otherwise
persistently or fundamentally in breach of an
obligation under the Contract; or
(e) has to the detriment of good workmanship or in

defiance of the Engineer's instruction to the
contrary sublet any part of the Works; or
(f) despite a previous warning by the Engineer in

writing regarding failure to adhere to any aspect
of safety or temporary traffic arrangements, has
failed again to adhere; or
(g) is liable for any death or injuries or damage to

any workman, employee, person or property
whatsoever arising out of or in consequence of
the Contractor’s repeated negligence, errors
and/or omission in the Execution of the Works;
then the Employer may after giving 7 Days' notice in

writing to the Contractor enter upon the Site and the
Works and expel the Contractor therefrom without
thereby voiding the Contract or releasing the
Contractor from any of his obligations or liabilities
under the Contract or affecting the rights and powers
conferred on the Employer or the Engineer by the
Contract and may himself complete the Works or
any part thereof or may employ any other contractor
to complete the Works and the Employer or such
other contractor may use for such completion so
much of the Contractor's Equipment and Plant and
Material which have become the property of the
Employer under Clauses 91 and 92 as he or they
may think proper and the Employer may at any time
sell any of the said Contractor's Equipment and
unused Plant and Material and apply the proceeds of
sale in or towards the satisfaction of any sums due
or which may become due to him from the
Contractor under the Contract.
Assignment to 101.2 By the said notice or by further notice in writing to the

Employer Employer within 14 Days of the date thereof the
Engineer may require the Contractor to assign to the
Employer and if so required the Contractor shall
120 September 2020
forthwith assign to the Employer the benefit of any

agreement for the supply of any Plant and Materials
and/or for the execution of any work for the purposes
of this Contract which the Contractor may have
entered into.
Valuation at Date of 101.3 The Engineer shall as soon as may be practicable

Forfeiture after any such entry and expulsion by the Employer
after such investigation or enquiries as he may think fit
to make or institute, certify what amount (if any) had at
the time of such entry and expulsion been reasonably
earned by or would reasonably accrue to the
Contractor in respect of work then actually done by
him under the Contract and what was the value of any
unused or partially used Plant and Materials and any
Contractor's Equipment which have been deemed to
become the property of the Employer under Clauses
91 and 92.
Payment after 101.4 If the Employer shall enter and expel the Contractor
Forfeiture under Clause 101.1 he shall not be liable to pay to
the Contractor any money on account of the
Contract until the expiration of the Defects Liability
Period (or, where there is more than one such
period, the expiration of the latest such period) and
thereafter until the Costs of completion and
correction of defects, damages for any delay in
completion and all other expenses incurred by the
Employer have been ascertained and the amount
thereof certified by the Engineer. The Contractor
shall then be entitled to receive only such sum or
sums (if any) as the Engineer may certify would have
been due to him upon due completion by him after
deducting the said amount. But if such amount
shall exceed the sum which would have been
payable to the Contractor on due completion by him
then the Contractor shall upon demand pay to the
Employer the amount of such excess and it shall be
deemed a debt due by the Contractor to the
Employer and shall be recoverable accordingly.
101.5 The Contractor recognises that, in addition to any

delay caused by him to the progress of the Works
prior to any expulsion pursuant to Clause 101.1, the
Works will after such expulsion be further delayed by
the need to find and employ a replacement
contractor and by the need of the replacement
contractor to mobilize and to familiarise himself with
the Works. The Contractor hereby agrees to pay
general damages to the Employer in respect of such
further delay, the sum to be paid being such sum as
the Engineer shall bona fide estimate to be the
121 September 2020
amount of the loss or damage which the Employer

has suffered as a consequence of such further delay.
Any such estimate made by the Engineer shall be
binding on the Contractor unless and until revised by
an arbitrator pursuant to Clause 103.
Insolvency or 101.6 If :
Change in Control
(a) the Contractor shall become bankrupt or
insolvent or have a receiving order made
against him or shall present his petition in
bankruptcy or shall make an arrangement with
or assignment in favour of his creditors or shall
agree to carry out the Contract under a
committee of inspection of his creditors, or
being a corporation commence to be wound up
(such winding-up not being a members'
voluntary winding up for the purpose of
amalgamation or reconstruction), or shall have
a receiver appointed over all or any part of its
undertaking or assets or go into liquidation; or
(b) the Contractor becomes a subsidiary, within the

meaning of the Companies Ordinance
(Cap.32), of a Person of whom the Contractor
was not a subsidiary on the date of the Letter of
Acceptance or if the Contractor comes under
the control of two or more Persons acting in
concert so that if they were one company the
Contractor would be its subsidiary,
the Employer shall be at liberty:
(c) without prejudice to its other accrued rights

under the Contract forthwith to terminate the
employment of the Contractor under the
Contract by notice in writing to the Contractor or
(in a case within sub-clause (a) above) to the
receiver or liquidator or to any Person in whom
the Contract may be vested, and to act in the
manner provided in Clause 101.1 as if the 7 Day
notice to be given by the Employer thereunder
had expired; and/or
(d) to give the Persons who have acquired control of

the Contractor or to such receiver, liquidator or
other Person the option of carrying out the
Contract subject to his or their procuring
forthwith the provision by an insurance company
or bank approved in writing by the Employer (the
Employer shall not be required to give reasons
for not approving) to the Employer of a bond in a
122 September 2020
sum and in a form to be stipulated by the

Employer.
Termination 101.7 Without prejudice to his rights under Clauses 101.1

and 101.6 or to rescind the Contract at common law,
the Employer may at any time give 30 Days' notice in
writing to determine the Contractor's employment
under the Contract. Such notice may be given by
the Employer simultaneously with and/or as an
alternative to forfeiture under Clause 101.1 or a
rescission at common law, but in the event that no
entitlement so to forfeit, rescind or determine is
established by the Employer, the Contractor shall be
entitled to payment and compensation in
accordance with the provisions of Clause 102.3.
Termination of Part 101.8 The Employer may in lieu of exercising his right of
forfeiture under Clause 101.1 take part only of the
Works out of the hands of the Contractor and may by
himself, his servants or agents execute, complete and
maintain such part and in such event the Employer
may recover his reasonable Costs of so doing from
the Contractor or deduct such Costs from money
otherwise becoming due to the Contractor from time
to time.
Outbreak of War 102.1 If during the currency of the Contract there shall be
an outbreak of war (whether war is declared or not)
in any part of the world which whether financially or
otherwise substantially affects the Execution of the
Works the Contractor shall unless and until the
Contract is terminated under the provisions
contained in this clause use his best endeavours to
complete the Execution of the Works provided
always that the Employer shall be entitled at any
time after such outbreak of war to terminate this
Contract by giving 14 Days notice in writing to the
Contractor and upon such notice being given this
Contract shall (save as to the rights of the parties
under this Clause 102 and to the operation of Clause
103) determine at the expiry of the 14 Days but
without prejudice to the rights of either party in
respect of any antecedent breach thereof.
Removal of 102.2 If the Contract shall be determined under Clause

Contractor’s 102.1 the Contractor shall with all reasonable
Equipment on despatch remove from the Site all Contractor's
Termination Equipment and shall give similar facilities to his
sub-contractors to do so.
Payment if 102.3 If the Contract shall be determined under Clause

123 September 2020
Contract 102.1 the Contractor shall be paid by the Employer

Terminated for all work executed prior to the date of
determination (insofar as such work shall not have
already been covered by payments on account
made to the Contractor), the value of such work to
be determined for the purposes of this Clause 102.3,
and the amount payable to be certified, in
101.3, and the Contractor shall in addition, where
such amounts are not covered by Clause 101.3, be
paid:
(a) the amounts payable in respect of any service

for the Works a commitment to which has been
reasonably incurred so far as the service
comprised therein has been carried out or
performed and a proper proportion as certified
by the Engineer of any such service which has
been partially carried out or performed;
(b) the Cost of any Plant and Materials reasonably

ordered for the Works which shall have been
delivered to the Contractor or of which the
Contractor is legally liable to accept delivery
(such Plant and Materials becoming the
property of the Employer upon such payments
being made by him);
(c) a sum to be certified by the Engineer being the

amount of any Cost reasonably incurred by the
Contractor in the expectation of completing the
whole of the Works in so far as such
expenditure shall not have been covered by the
payments in this Clause 102.3 before
mentioned;
(d) the reasonable Cost of removal of Contractor's

Equipment under Clause 102.2 and (if required
by the Contractor) of the return thereof to the
Contractor's main plant yard in his country of
registration or to other destination at no greater
Cost; and
(e) the reasonable Cost of repatriation of all the

Contractor's staff and workmen employed on or
in connection with the Works at the time of such
termination.
102.4 As against any payments due from the Employer

under Clause 102.3, the Employer shall be entitled to
be credited with any outstanding balances due from
the Contractor and for advances in respect of Plant
124 September 2020
and Materials and any sum previously paid by the

Employer to the Contractor in respect of the Execution
of the Works.
Payment in Event 102.5 In the event of the Contract being frustrated whether
of Frustration by war or by any other supervening event which may
occur independently of the will of the parties the sum
payable by the Employer to the Contractor in respect
of the work executed shall be the same as that which
would have been payable under Clause 102.3 if the
Contract had been determined by the Employer under
Clause 102.1.
RESOLUTION OF DISPUTES
Settlement of 103.1 This Clause 103 shall apply to any and all disputes
Disputes: over any decision, opinion, instruction, direction,
Arbitration certificate, estimate or valuation of the Engineer, and
to all disputes between the Employer and the
Contractor which may arise out of or in connection
with the Contract or the carrying out of the Works.
Either party desiring redress, remedy or relief of any
kind against the other party in relation to any such
dispute shall pursue the same in accordance with the
procedure set out in this Clause 103, which shall be
the sole means of resolving disputes under the
Contract.
Notice of Dispute 103.2 For the purposes of Clauses 103.3 to 103.16 below, a
dispute shall be deemed to arise when one party
serves on the Engineer and on the other party a
Notice of Dispute.
103.3 Within 30 Days of receipt of a Notice of Dispute,

either:
(a) the Engineer shall state his decision in writing

and give notice of the same to the Employer and
the Contractor; or
(b) if the dispute arises from a decision of the

Engineer made under a direction of the
Employer pursuant to Clause 2.1(c), the
Engineer shall notify the Contractor in writing of
that fact.
103.4 Unless the Contract has already been terminated or

abandoned, or the employment of the Contractor
determined, the Contractor shall in every case
continue to proceed with the Execution of the Works
with all due diligence and expedition and shall
125 September 2020
forthwith give effect to every decision of the Engineer.

Any such decision shall be final and binding except
after and to the extent that it shall have been revised
by:
(a) agreement between the Employer and the

Contractor (following mediation or otherwise); or
(b) an arbitral award.
Reference to 103.5 Where:

Arbitration
(a) the Employer or the Contractor is dissatisfied
with any decision of the Engineer given under
Clause 103.3(a); or
(b) the Engineer has given the Contractor notice in

accordance with Clause 103.3(b); or
(c) the Engineer fails to give a decision or notice

under Clause 103.3 within 30 Days after the
reference of the dispute to him,
then either party may either within 90 Days of the

date of receipt of the Engineer’s decision or notice or
of the expiry of the 30 Day period (as the case may
be) by notice in writing to the other party refer the
dispute to the arbitration of a person to be agreed
upon between the parties or (if the parties fail to
appoint an arbitrator within 30 Days of either party
serving on the other party a written notice to concur
in the appointment of an arbitrator) a person to be
appointed by the Secretary-General of the Hong
Kong International Arbitration Centre. If the
Secretary-General is absent from Hong Kong or is
otherwise unable or unwilling to appoint an arbitrator,
then his function under this clause may be fulfilled by
any Acting Secretary-General or other officer of the
Hong Kong International Arbitration Centre and
references to "the Secretary-General" shall be
construed accordingly. Any award issued by an
arbitrator appointed pursuant to this clause shall be
final and binding upon the parties.
Mediation 103.6 No steps shall be taken in any reference to an

arbitrator (with the exception of the formal
appointment of the arbitrator) unless and until either
party has first referred the dispute to mediation by
serving on the other party a Request for Mediation in
accordance with Clause 103.7 and the party serving
the Request for Mediation has made a bona fide
attempt to resolve the dispute by mediation. Such a
126 September 2020
bona fide attempt shall be deemed to have been

made provided that the following minimum steps have
been taken:
(a) a mediator has been appointed pursuant to the

MTRCL Mediation Rules; and
(b) the party serving the Request for Mediation has

attended at least one meeting with the mediator
(whether with or without the presence of the
other party).
103.7 A Request for Mediation may, if both parties so

consent in writing (and subject to the overriding
requirement that the Contractor shall in every case
continue to proceed with the Works with all due
diligence and expedition), be served at any time after
the expiry of the 90 or 30 Day period referred to in
Clause 103.5. Provided that, in the absence of such
written consent from both parties, no Request for
Mediation shall be served prior to the issue of the
Certificate of Completion for the whole of the Works,
the determination or abandonment of the Contract, or
the determination or abandonment of the Contractor's
employment under the Contract (whichever shall
happen first).
103.8 Any mediation commenced pursuant to this Clause

103 shall be conducted in accordance with and
subject to the MTRCL Mediation Rules (a copy of
which appears at Appendix G to these Conditions).
103.9 Where, in the opinion of either party, a dispute

between them concerns any matter involving that
party and any other Person or Persons then neither
party shall object to the participation in any mediation
commenced in relation to such dispute of such other
Person or Persons.
Interlocutory Relief 103.10 The requirement to attempt to resolve disputes by

mediation before taking any step in arbitration
proceedings shall not prevent either party from
making, either prior to or at the same time as
proceeding with mediation, an application to an
arbitrator or to the courts for any interlocutory relief
involving the obtaining or preserving of evidence or
preventing or requiring the taking of certain actions
(whether with regard to the subject matter of the
dispute, the assets of the other party or in any other
regard) pending the final resolution of the dispute.
127 September 2020
Once such application for interlocutory relief has

been decided or settled (pending the final resolution
of the dispute), and in order to allow mediation to
take place or to continue, the parties shall consent to
any application made to extend any time limits fixed
by the arbitrator for taking any steps in the arbitration
until a reasonable time after the mediation process is
complete.
103.11 If a dispute is not settled by agreement pursuant to

the recommendation of a mediator or otherwise,
either party may within 30 Days of the date of
termination of mediation pursuant to Rule 7 or Rule
16 of the MTRCL Mediation Rules request the
arbitrator to continue with the arbitration, whereupon
the arbitration shall proceed.
Limitation Period 103.12 The parties agree that, in determining whether any
proceedings have been commenced within the
period after the relevant cause of action arose
allowed by the Limitation Ordinance (or any statutory
re-enactment or modification thereof) for the
commencement of litigation or arbitration
proceedings, such proceedings shall be deemed to
have commenced when the cause of action was
made the subject matter of a Notice of Dispute
served under Clause 103.2.
103.13 Any reference to arbitration under this Clause 103

shall be arbitrated in accordance with the UNCITRAL
Arbitration Rules as at present in force and as
modified by this Clause 103, which shall be deemed
incorporated in this Clause 103. For the purposes
of any arbitral proceedings commenced pursuant to
this Clause:
(a) The number of arbitrators shall be one;
(b) The place of the arbitration shall be Hong

Kong;
(c) The Arbitration Ordinance (Cap.609) (with all

of the provisions of Schedule 2 of such
Ordinance applying) or any statutory
modification or re-enactment thereof; and
(d) The language of the arbitration shall be

English.
103.14 The arbitrator shall have full power to open up,

review and revise any decision, opinion, instruction,
direction, certificate, estimate or valuation of the
128 September 2020
Engineer, save only to the extent that any other

clause of the Conditions of Contract expressly
otherwise provides.
Evidence 103.15 Neither party shall be limited in the proceedings

before the arbitrator to evidence or arguments put
before the Engineer for the purpose of obtaining his
decision or notice pursuant to Clause 103.3.
Engineer as 103.16 No decision given by the Engineer shall disqualify him

Witness from being called as a witness and giving evidence
before the arbitrator.
NOTICES
Notices 104.1 Any document arising under, out of or in connection

with the Contract may be served on the Contractor at
his address in Hong Kong stated in the Form of
Tender and on the Employer or Engineer at their
addresses stated in the Letter of Clarification, or at
such other address in Hong Kong as may be notified
by the one party to the other in writing expressly for
the purpose of service of documents.
104.2 Any document may be served by hand, by post or by

leaving the document at the relevant address
nominated for service of documents under Clause
104.1. In the case of service upon the Contractor, a
document may also be served by posting a copy in a
conspicuous position on the Site.
104.3 Documents may be served by facsimile only if the

recipient has previously notified the other party and
the Engineer in writing that he is prepared to accept
service of documents in that manner. It shall in any
event be a condition of valid service by facsimile that
the hard copy is subsequently sent forthwith to the
recipient in accordance with Clause 104.2.
DEFAULT OF EMPLOYER
Default of 105.1 In the event of the Employer:

Employer
(a) failing to pay the Contractor any amount certified
as due to him by the Employer within 60 Days of
the last date upon which the same ought to have
been paid in accordance with the terms of this
Contract as modified by any separate financial
agreement; or
(b) interfering with or obstructing the issue of any

129 September 2020
payment certificate,
then provided that:
then provided that the Contractor shall have given

the Employer notice in writing requiring the payment
to be made or the certificate to be issued and the
Employer shall have remained in default for a further
14 Days the Contractor shall be entitled without
prejudice to any other rights or remedies to
terminate the Contract by giving notice in writing to
the Employer (save only in a case where the failure
to pay is due to a bona fide set-off or counter-claim
by the Employer or a right under the Contract to
deduct from monies otherwise due).
105.2 Upon the giving of such notice the Contractor shall

notwithstanding the provision of Clause 91.6 hereof
with all reasonable despatch remove from the Site all
Contractor's Equipment brought by him thereon.
105.3 In the event of such termination the Employer shall

be under the same obligations to the Contractor in
regard to payment as if the Contract had been
terminated under the provisions of Clause 102.1
hereof but in addition to the payments specified in
Clause 102.3 the Employer shall pay to the
Contractor the amount of any loss or damage
suffered by the Contractor arising out of or in
connection with or by consequence of such
termination.
105.4 Nothing in Clause 105 shall prejudice the right of the

Contractor to exercise either in lieu of or in addition to
the rights and remedies in Clause 105 any other rights
or remedies to which the Contractor may be entitled.
130 September 2020

FOR

ENGINEERING WORKS
APPENDIX A
FORMAL AGREEMENT
(Refer Clause 12.1)
September 2020
APPENDIX A
FORMAL AGREEMENT
THIS AGREEMENT is made the day of
BETWEEN
(1) MTR CORPORATION LIMITED, MTR Headquarters Building, Telford Plaza,

Kowloon Bay, Kowloon, Hong Kong (together with its successors and assigns,
"the Employer") and
(2) [ ] [whose registered office is at] [of] [ ]

("the Contractor") [see Note a)].
WHEREAS the Employer is desirous that certain Works should be constructed, namely the
Permanent Works and Temporary Works in connection with
and, by a Letter of Acceptance dated , the Employer has accepted a

tender by the Contractor for the design, manufacture, supply, transportation, delivery to
Site, construction, installation, setting to work, commissioning, testing, completion,
operating and maintenance [delete any that are not applicable] of such Works on the terms
referred to in the Letter of Acceptance.
NOW THIS AGREEMENT WITNESSETH as follows
1. In this Agreement words and expressions shall have the same meanings as
are respectively assigned to them in the Conditions of Contract hereinafter
referred to.
A1 September 2020
2. The documents deemed to form and be read and construed as part of this
Agreement are those listed in the Letter of Clarification, Supplement to the
Letter of Clarification [delete if not applicable] and the Letter of Acceptance.
3. In consideration of the obligations of the Employer to the Contractor as

hereinafter mentioned the Contractor hereby covenants with the Employer to
carry out and complete the construction of the Works in conformity in all
respects with the provisions of the Contract.
4. The Employer hereby covenants to pay to the Contractor in consideration of

the carrying out and completion of the construction of the Works at the times
and in the manner prescribed by the Contract.
IN WITNESS whereof the parties hereto have caused this Agreement to be executed as a
deed the day and year first above written.
SIGNED SEALED AND DELIVERED )

for and on behalf of and )
as lawful attorney of )
MTR CORPORATION LIMITED )
under a power of attorney dated )
by )
in the presence of: )
The Common Seal of [the )

Contractor] )
was hereunto affixed in )
the presence of: )
Director: ...............
Secretary: ..............
A2 September 2020
OR

as lawful attorney of [the )
Contractor] under a power )
of attorney dated )
by )
Notes:
(For preparation of but not inclusion in any engrossment of the Formal Agreement)
(a) Where the Contractor comprises more than one company, add:
"and.......................whose registered office is

at/of.....................(jointly "the Contractor")",
and to delete "("the Contractor")" from the existing wording.
(b) If the Contractor comprises more than one company each member of the joint
venture or consortium must execute this Formal Agreement.
(c) These notes and the reference within the text above to "Note a)" should be deleted
before the Formal Agreement is engrossed.
A3 September 2020
FOR

ENGINEERING WORKS
APPENDIX B
BOND
(Refer Clause 13.1)
September 2020
APPENDIX B
BOND
BY THIS BOND dated the day of
We [ ] whose registered office is at/of [ ]

("the Bondsman") are irrevocably and unconditionally bound to the MTR CORPORATION
LIMITED, MTR Headquarters Building, Telford Plaza, Kowloon Bay, Kowloon, Hong Kong
(together with its successors and assigns, "the Employer") for the payment upon demand in
writing made by the Employer upon us of the sum of [ ]
Hong Kong Dollars (HK$[ ]) ("the Bonded Sum").
WHEREAS:
A. By a contract numbered [ ] and dated [ ] ("the Contract")

made between the Employer and [ ] whose registered office
is at/of [ ] ("the Contractor"), the Contractor has
agreed to execute certain works ("the Works") as more particularly described
in the Contract upon the terms and conditions contained in the Contract,
B. At the request and for the account of the Contractor, the Bondsman has
agreed to provide this Bond,
NOW THE CONDITIONS OF THIS BOND ARE:
1. Upon demand in writing made by the Employer upon the Bondsman from time
to time or at any time hereunder, the Bondsman shall forthwith pay to the
Employer the sum mentioned in the said demand, provided that any such
demand in writing shall be substantially in the form of either Annexure 1A or
Annexure 1B to this Bond, and as between the Employer and the Bondsman
the facts set out in that demand shall be deemed to be true.
B1 September 2020
2. Any demand made in the form of Annexure 1A to this Bond shall be

accompanied by a copy of a letter from the Employer sent to the Contractor by
registered post 14 or more days before the date of the demand, such letter to
be substantially in the form of Annexure 2 to this Bond.
3. The liability of the Bondsman under this Bond shall remain in full force and
effect and shall not be affected or discharged in any way by any alteration to
the terms of the Contract or in the extent or nature of the Works to be carried
out thereunder with or without the Bondsman's knowledge and the
Bondsman's liability hereunder shall not be affected or discharged by any time
being given to the Contractor or by any other indulgence or concession to the
Contractor or by any forbearance forgiveness or any other thing done omitted
or neglected to be done under the Contract or by the termination of the
Contract or the employment of the Contractor or by any other bond security or
guarantee now or hereafter held by the Employer for all or any part of the
obligations of the Contractor under the Contract or by the release or waiver of
any such bond security or guarantee or by any other matter or thing which but
for this provision would or might affect or discharge the liability of the
Bondsman.
4. The liability of the Bondsman under this Bond shall be continuing and shall
remain in operation until the Contract shall have been duly and properly
performed and completed according to the true purport intent and meaning
thereof or until this Bond shall have been paid in full, whichever shall first
occur.
5. In the event of a formal agreement being entered into between the Employer
and Contractor pursuant to Clause 12.1 of the Conditions of Contract, whether
the same is executed under seal or under hand only, all references herein to
"the Contract" shall with effect from the execution of such agreement be
construed as references to the said formal agreement and to any conditions of
contract incorporated into the said formal agreement but this instrument shall
otherwise continue in full force and effect.
B2 September 2020
6. Notwithstanding anything else contained in this Bond the aggregate liability of

the Bondsman under this Bond shall not exceed the Bonded Sum.
7. This Bond is irrevocable by the Bondsman as from the date hereof.
8. The Employer shall be entitled to assign the benefit of this Bond at any time
without the consent of the Bondsman being required.
9. This Bond shall be governed by and construed according to the laws of Hong
Kong and the Bondsman hereby submits to the non-exclusive jurisdiction of
the courts of Hong Kong.
IN WITNESS whereof this Bond has been executed as a Deed this

day of
The Common Seal of [the Bondsman] )

was hereunto affixed in the )
presence of: )
OR

for and on behalf of and as )
lawful attorney of [the Bondsman] )
by )
B3 September 2020
ANNEXURE 1A
Form of Demand from MTR Corporation Limited

to [the Bondsman]
Dear Sirs,
[Name of Project]
Contract No. [ ]
We refer to the bond given by you to us dated [ ]. We enclose a copy of

a letter from us to [INSERT NAME OF CONTRACTOR] ("the Contractor") which was sent
to the Contractor by registered post and by facsimile transmission on [ ],
more than 14 days before the date of this demand.
The Contractor has not taken steps, which we consider adequate to remedy the breaches
referred to in the enclosed copy letter.
We hereby demand payment from you forthwith of the sum of $[ ] under your
bond.
Yours faithfully,
B4 September 2020
ANNEXURE 1B
Alternative form of demand from

MTR Corporation Limited to [the Bondsman]
Dear Sirs,
[Name of Project]
Contract No. [ ]
We refer to the bond given by you to us dated [ ].
An event has occurred of the type described in Clause 101.6(a) of the Conditions of
Contract which entitles us (inter alia) to terminate the employment of the Contractor under
the Contract in accordance with Clause 101.6.
We hereby demand payment from you forthwith of the sum of $[ ] under

your bond.
Yours faithfully,
B5 September 2020
ANNEXURE 2
Form of letter from MTR Corporation Limited

to the Contractor
Dear Sirs,
[Name of Project]
Contract No. [ ]
As explained in previous letters to you, you are in breach of your obligations under Contract
No. [ ], and you have not proposed or implemented sufficient steps to
remedy those breaches.
This letter notifies you that unless within the next 14 days you take steps which we consider
adequate to remedy the breaches we shall be entitled without further notice to you to call
for payment under the bond given on your behalf by [the Bondsman].
Yours faithfully,
B6 September 2020
FOR

ENGINEERING WORKS
APPENDIX C
PARENT COMPANY GUARANTEE
(Refer Clause 13.2(a))
September 2020
APPENDIX C
PARENT COMPANY GUARANTEE
THIS GUARANTEE is made the day of .
BETWEEN:-
(1) [ ] [whose registered office is at ]/

[of ] ("the Guarantor").

"the Employer").
WHEREAS:-
A. By a contract numbered [ ] and dated [ ] ("the Contract")

made between the Employer and [the unincorporated joint venture comprising
of [ ] and [ ]|[ ] ([together] "the Contractor") [See Notes (c)
and (d)], the Contractor agreed to execute and complete certain works ("the
Works") as more particularly described in the Contract, upon the terms and
conditions contained in the Contract.
B. Pursuant to the terms of the Contract, [the Contractor] [See Note (d)] has
agreed to procure the provision of a guarantee in the terms hereof.
C. At the request of [ ] | [the Contractor] [See Note (c)], the Guarantor has
agreed to provide this Guarantee.
[D. The Guarantor is the parent company of [ ] | [the Contractor] ]
C1 September 2020
NOW THE GUARANTOR HEREBY agrees with the Employer as follows:-
1. In consideration of the Employer entering into the Contract and any Formal
Agreement with [ ], in its capacity as a joint venture party to the Contractor]
|[and]| [the Contractor,] [See Notes (e) and (f)] the Guarantor irrevocably and
unconditionally guarantees to the Employer, as primary obligor and not merely
as surety, that [ ] |[and/or] | [the Contractor] [See Notes (e) and (f)] shall
properly and punctually perform every Obligation under or in connection with
the Contract and any Formal Agreement and shall comply with all the terms
and conditions thereof according to their true purport, intent and meaning and
with all the terms and conditions of any agreement entered into between the
Employer and [ ] | [and/or] | [the Contractor] [See Notes (e) and (f)]
pursuant to Clause 12.1 of the Conditions of Contract including without
limitation any Obligation on the part of [ ] | [and/or] | [the Contractor][see
Notes (e) and (f)] to indemnify the Employer against any losses, claims,
damages, costs and expenses. If there is default in respect thereof by [ ]
|[and/or] | [the Contractor] [See Notes (e) and (f)] or if [ ] | [and/or] | [the
Contractor] [See Notes (e) and (f)] shall become liable in contract, tort or
otherwise to the Employer in connection with the Works to be performed, or
that have been performed, by [ ] | [and/or] | [the Contractor] [See Notes (e)
and (f)] under or in connection with the Contract and any Formal Agreement,
then the Guarantor will indemnify the Employer on demand against and in
respect of all losses, claims, damages, costs and expenses thereby suffered or
incurred by the Employer to the extent that [ ] | [and/or] | [the Contractor]
[See Notes (e) and (f)] is or would be liable for the same.
2. The Guarantor shall not be discharged or released from this Guarantee by:
(a) any arrangement made between [ ] | [and/or] | [the Contractor] [See

Notes (e) and (f)] and the Employer without the assent of the Guarantor;
(b) any termination of the Contract or the Formal Agreement or of the
employment of the Contractor for any reason;
(c) any alteration in the Obligations undertaken by [ ] | [and/or] | [the
Contractor] [See Notes (e) and (f)] or variation of the Contract or the
Formal Agreement;
C2 September 2020
(d) any forbearance or forgiveness extended by the Employer to [ ] |

[and/or] | [the Contractor] [See Notes (e) and (f)] whether as to payment
time performance or otherwise and whether such alteration variation or
forbearance or forgiveness shall be made or extended with or without the
knowledge or consent of the Guarantor; or
(e) by any other matter or thing which but for this provision would or might
discharge or release the Guarantor.
3. This Guarantee shall not in any way be prejudiced or affected by any other
bond, security or guarantee now or hereafter held by the Employer for all or
any part of the Obligations whose performance is hereby guaranteed or the
release or waiver thereof. This Guarantee may be enforced without first
having recourse to any such bond, security or guarantee or taking any steps or
proceeding against [ ] | [and/or] | [the Contractor] [See Notes (e) and (f)].
4. This Guarantee is a continuing guarantee and accordingly shall cover all of the
Obligations and liabilities of [ ] | [and/or] | [the Contractor] [See Notes (e)
and (f)] under the Contract and any Formal Agreement and shall remain in full
force and effect until the latter of:
(a) all the Obligations of the Contractor have been carried out completed and
discharged to the satisfaction of the Employer in accordance with the
Contract and any Formal Agreement; or
(b) the expiry of the applicable Hong Kong statutory limitation period.
5. The Employer shall be entitled to assign the benefit of this Guarantee at any
time without the consent of the Guarantor or [ ] | [and/or] | [the Contractor]
[See Notes (e) and (f)] being required.
6. This Guarantee shall be governed by and construed in accordance with the

laws of Hong Kong and the Guarantor hereby submits to the non-exclusive
jurisdiction of the courts of Hong Kong.
C3 September 2020
IN WITNESS whereof this Guarantee has been executed as a Deed on the day first before
written.
The Common Seal of )

[the Guarantor] )
was affixed hereto )
in the presence of:- )
OR

lawful attorney of )
[the Guarantor] )
under a power of attorney )
dated )
by )
NOTES:
(a) For preparation of, but not inclusion in, the engrossment of the Guarantee.
(b) Not used.
(c) If the Contractor does not comprise of more than one company, reference should be
made to the “Contractor” only and delete Recital [D].
(d) If the Contractor comprises more than one company, Recital [A] must note the
existence of the unincorporated joint venture arrangement (or other relevant
agreement) and the relationship of the Guarantor to the relevant company forming
part of the Contractor.
(e) If each parent company is required to guarantee the Contractor and its relevant
subsidiary, then refer to the subsidiary and “the Contractor”, and include the words
“and” or “and/or” (as the case may be).
(f) If it is agreed to accept separate guarantees from each parent company which will
only guarantee the relevant subsidiary, delete references to “the Contractor” and
the words “and” or “and/or” (as the case may be).
C4 September 2020
FOR

ENGINEERING WORKS
APPENDIX D
JOINT AND SEVERAL GUARANTEE
(Refer Clause 13.2(b))
September 2020
APPENDIX D
JOINT AND SEVERAL GUARANTEE
THIS GUARANTEE is made the day of .
BETWEEN:-

[of ];

[of ],
(together referred to as “the Guarantors"); and

“the Employer").
WHEREAS:-
A. By a contract numbered [ ] and dated [ ] ("the

Contract") made between the Employer and [the unincorporated joint venture
comprising of [ ] and [ ]|[ ] ([together] "the Contractor")
[See Notes (c) and (d)], the Contractor agreed to execute and complete certain
works ("the Works") as more particularly described in the Contract, upon the
terms and conditions contained in the Contract. [ ] is the parent company
of [ ] [see Note (d)]
B. Pursuant to the terms of the Contract, the Contractor has agreed to procure
the provision of a guarantee in the terms hereof.
C. At the request of the Contractor, the Guarantors have agreed to provide this
Guarantee.
D1 September 2020
NOW THE GUARANTORS HEREBY agree with the Employer as follows:-
1. In consideration of the Employer entering into the Contract and any Formal
Agreement with the Contractor, the Guarantors, jointly and severally,
irrevocably and unconditionally guarantee to the Employer, as primary obligors
and not merely as sureties, that the Contractor shall properly and punctually
perform every Obligation under or in connection with the Contract and any
Formal Agreement and shall comply with all the terms and conditions thereof
according to their true purport, intent and meaning and with all the terms and
conditions of any agreement entered into between the Employer and the
Contractor pursuant to Clause 12.1 of the Conditions of Contract including
without limitation any Obligation on the part of the Contractor to indemnify the
Employer against any losses, claims, damages, costs and expenses. If there
is default in respect thereof by the Contractor or if the Contractor shall become
liable in contract, tort or otherwise to the Employer in connection with the
Works to be performed, or that have been performed, by the Contractor under
or in connection with the Contract and any Formal Agreement, then the
Guarantors will, jointly and severally indemnify the Employer on demand
against and in respect of all losses, claims, damages, costs and expenses
thereby suffered or incurred by the Employer to the extent that the Contractor is
or would be liable for the same.
2. The Guarantors shall not be discharged or released from this Guarantee by:
(a) any arrangement made between the Contractor and the Employer
without the assent of the Guarantors;
(b) any termination of the Contract or the Formal Agreement or of the
employment of the Contractor for any reason;
(c) any alteration in the Obligations undertaken by the Contractor or
variation of the Contract or the Formal Agreement;
(d) any forbearance or forgiveness extended by the Employer to the
Contractor whether as to payment time performance or otherwise and
whether such alteration variation or forbearance or forgiveness shall be
made or extended with or without the knowledge or consent of the
Guarantors; or
(e) any other matter or thing which but for this provision would or might
discharge or release the Guarantors.
D2 September 2020
3. This Guarantee shall not in any way be prejudiced or affected by any other
bond, security or guarantee now or hereafter held by the Employer for all or any
part of the Obligations whose performance is hereby guaranteed or the release
or waiver thereof. This Guarantee may be enforced without first having
recourse to any such bond, security, or guarantee or taking any steps or
proceeding against the Contractor.
4. This Guarantee is a continuing guarantee and accordingly shall cover all of the
Obligations and liabilities of the Contractor under the Contract and any Formal
Agreement and shall remain in full force and effect until the latter of:
(a) all the Obligations of the Contractor have been carried out completed
and discharged to the satisfaction of the Employer in accordance with the
Contract and any Formal Agreement; or
(b) the expiry of the applicable Hong Kong statutory limitation period.
5. The Employer shall be entitled to assign the benefit of this Guarantee at any
time without the consent of the Guarantors or the Contractor being required.
6. This Guarantee shall be governed by and construed in accordance with the

laws of Hong Kong and the Guarantor hereby submits to the non-exclusive
jurisdiction of the courts of Hong Kong.
IN WITNESS whereof this Guarantee has been executed as a Deed on the day first before
written.

[Guarantor 1] )
D3 September 2020
OR

[Guarantor 1] )
under a power of )
attorney dated )
by )
The Common Seal of

[Guarantor 2] )
OR

[Guarantor 2] )
under a power of )
attorney dated )
by )
NOTES:
(a) For preparation of, but not inclusion in, the engrossment of the Guarantee.
(b) Not used.
(c) If the Contractor is an incorporated joint venture, reference should be made to the
“Contractor” only.
(d) If the Contractor comprises more than one company (unincorporated joint venture)
Recital A must note the existence of the unincorporated joint venture arrangement
(or other relevant agreement) and the relationship of the relevant Guarantor to the
relevant company forming part of the Contractor.
D4 September 2020
FOR

ENGINEERING WORKS
APPENDIX E
SPECIAL CONDITIONS OF CONTRACT
(Refer Clause 83.1)
September 2020
APPENDIX E
TABLE OF CONTENTS
CONDITIONS
Clause Subject Heading Page
SCC1 Measurement E1
SCC2 Contract Price Subject to Variation E2
SCC3 Completion of Sections and Occupied Parts E3
SCC4 Incentive Payment for Safety and Environmental E3

Performance
E1 September 2020
APPENDIX E
A. Where these Special Conditions of Contract amend, vary or modify in any way
whatsoever the application or interpretation of the Conditions of Contract, the
Conditions of Contract shall be so amended, varied or modified.
B. SPECIAL CONDITIONS OF CONTRACT
SCC1 MEASUREMENT
1.1 In respect of the Works or any part of the Works to which pursuant to Clause 83.1
of the Conditions of Contract these Special Conditions of Contract apply:
(a) Quantities
The quantities set out in the Pricing Document are estimated quantities of
the work and are not to be taken as the actual and correct quantities of
the work to be executed by the Contractor.
(b) Correction of Errors
Any error in description in the Pricing Document or omission therefrom

shall not vitiate the Contract nor release the Contractor from the
execution of the whole or any part or Section of the Works according to
the Contract or from any of his obligations or liabilities under the Contract.
Any such error or omission shall be corrected by the Engineer and the
value of the work actually carried out shall be ascertained in accordance
with Clause 80. Provided that there shall be no rectification of any
errors omissions or wrong estimates in the descriptions quantities rates
and prices inserted by the Contractor in the Pricing Document, which
errors, omissions or wrong estimates shall be entirely the responsibility of
the Contractor.
(c) Measurement and Valuation

The Engineer shall except as otherwise stated ascertain and determine
by admeasurements the value in accordance with the Contract of the
work done in accordance with the Contract.
E2 September 2020
(d) Attending for Measurement
The Engineer shall when he requires any part or parts of the work to be
measured give reasonable notice to the Contractor who shall attend or
send a qualified agent to assist the Engineer or the Engineer's
Representative in making such measurement and shall furnish all
particulars required by either of them. Should the Contractor not attend
or neglect or omit to send such agent then the measurement made by the
Engineer or Approved by him shall be taken to be the correct
measurement of the work.
(e) Method of Measurement
Except where any statement or general or detailed description of the

work in the Pricing Document expressly shows to the contrary each part
of the Pricing Document shall be deemed to have been prepared and
measurements shall be made according to the method of measurement
referred to in the Pricing Document.
SCC2 CONTRACT PRICE SUBJECT TO VARIATION
2.1 Add the following new Clauses 85.3(S) to 85.6(S) after Clause 85.2 of the
Conditions of Contract:
85.3(S) Notwithstanding Clauses 85.2(a) and 85.2(b) of the Conditions of

Contract, the interim payment and final payment certified in accordance
with Clause 86.1 and Clause 88.2 respectively shall include an
adjustment in accordance with the provisions of this clause if there shall
have been any changes in the following lndex Figures as listed in the
“Schedule of Proportions” in the Appendix to the Form of Tender:
(a) The applicable materials indices; and
(b) The applicable labour indices.
The net total of such adjustments shall be used in determining the

Contract Price.
85.4(S) For the purpose of Clause 85.3(S), the adjustment in respect of each
payment certificate shall be calculated by multiplying the “Combined
Price Fluctuation Factor” by the “Effective Value”, where:
(a) The “Combined Price Fluctuation Factor” shall be calculated in

accordance with the “Schedule of Proportions”; and
(b) The "Effective Value" shall be the difference between:
E3 September 2020
(i) the amount which in the opinion of the Engineer is due to the
Contractor under 84.2 of the Conditions of Contract; and
(ii) the amount calculated in accordance with (i) above in the last
preceding interim certificate.
Provided that in the case of the first Interim Payment Certificate

(excluding the Interim Payment Certificate for the payment of the
premium of the Employees Compensation Insurance) the Effective
Value shall be the amount calculated in accordance with (i) above.
85.5(S) The achievement or non-achievement of Milestones has no effect on the

calculation of “Combined Price Fluctuation Factor”. The “Combined
Price Fluctuation Factor” shall be determined as specified in the Notes
for the “Schedule of Proportions”.
85.6(S) For clarity, the “Effective Value” shall exclude the following:
(i) the amount of Variations, whether the valuation of Variations are

based on the rates in the Pricing Document or on actual or at
current prices;
(ii) the amount of Changes;
(iii) the amount of Dayworks;
(iv) the incentive payment for Safety and Environmental Performance;
(v) the amount of Options;
(vi) the expenditure of Provisional Sums;
(vii) the price for Delay Recovery Measures;
(viii) the amount of Claims;
(ix) the increase or decrease to the value of Cost Centre arising from
admeasurement;
(x) any adjustment of the value of Cost Centre in respective of the

above; and
(xi) the Adjustment Item in the Summary of Cost Centres
E4 September 2020
SCC3 COMPLETION OF SECTIONS AND OCCUPIED PARTS
3.1 Notwithstanding Clauses 74.1 and 74.2 of the Conditions of Contract, no

Certificate of Completion shall be issued for the whole of the Works or for a
Section of the Works earlier than the dates set out in the Schedule of Completion
Obligations in Section 3 of the Appendix to the Form of Tender.
SCC4 INCENTIVE PAYMENT FOR SAFETY AND ENVIRONMENTAL PERFORMANCE
4.1 Add the following new Clause 106(S) – Incentive Payment for Safety and
Environmental Performance:
106.1(S) The Contractor shall be entitled to incentive payments for the

achievement of the target criteria in safety and environmental
performance as specified in the Particular Specification. Such
incentive payments will be certified by the Engineer pursuant to Clause
86.1 of the Conditions of Contract and included in the Interim Payment
Certificate for the Valuation Period during which the performance target
is achieved.
E5 September 2020
FOR

ENGINEERING WORKS
APPENDIX F
FORM OF SUB-CONTRACTOR WARRANTY
(Refer Clause 97.1)
September 2020
APPENDIX F
FORM OF SUB-CONTRACTOR WARRANTY
THIS DEED OF WARRANTY is made the day of
BETWEEN :
(1) [ ] [whose registered office is situate at]/[of][ ]

("the Sub-Contractor") and

Kowloon Bay, Kowloon, Hong Kong (together with its successors and assigns, "the
Employer") and
(3) [ ] [whose registered office is situate at]/[of] [ ]

[see Note a)] ("the Contractor").
WHEREAS
A By a contract numbered [ ] and dated [ ] ("the Main

Contract") made between the Employer and the Contractor, the Contractor agreed to
execute and complete certain works ("the Works") upon the terms and conditions
contained in the Main Contract.
B The Contractor wishes to enter into an agreement with the Sub-Contractor ("the
Sub-Contract") for the Sub-Contractor to carry out and complete a part of the Works
as more particularly described in the Sub-Contract ("the Sub-Contract Works").
F1 September 2020
C The Main Contract provides that the Contractor shall procure that the Sub-Contractor
enters into a warranty under seal in favour of the Employer.
NOW THIS DEED WITNESSES as follows:
In consideration of HK$100 paid by the Employer to the Sub-Contractor (receipt of which is

hereby acknowledged):-
1. The Sub-Contractor warrants to the Employer that he will execute and complete the
Sub-Contract Works and carry out each and all of his duties and obligations under
the Sub-Contract in a good and workmanlike manner and in accordance with the
terms of the Sub-Contract (as the same may from time to time be varied or amended
with the prior consent of the Employer).
2. The Sub-Contractor undertakes to indemnify the Employer from and against the
consequences of any breach by the Sub-Contractor of any of the warranties and
undertakings in this Warranty provided that the Sub-Contractor shall be liable to the
Employer by virtue of this Warranty only insofar as and to the extent that the
Contractor is liable to the Employer under the Main Contract by reason of any breach
by the Sub-Contractor of his obligations under the Sub-Contract or this Warranty.
3. The Sub-Contractor further warrants that:-
(a) the Sub-Contractor, his servants, agents and sub-contractors of any level and
each of them will exercise all the skill, care and diligence of a properly qualified
and competent professional or contractor experienced in carrying out work of a
similar size, scope and complexity to the Sub-Contract Works in:
(i) the design of the Sub-Contract Works insofar as the Sub-Contract Works
are required to be designed by or on behalf of the Sub-Contractor; and
(ii) the selection of materials and goods for the Sub-Contract Works insofar as
such materials and goods are required to be selected by or on behalf of
the Sub-Contractor;
F2 September 2020
(b) the Sub-Contract Works and all materials and goods comprised therein will
correspond as to description, quality and condition with the requirements of the
Sub-Contract and be of sound manufacture and workmanship;
(c) the Sub-Contract Works will on completion comply in all respects with any
performance specification or requirement insofar as such performance
specification or requirement is included or referred to in the Sub-Contract, and
any part of the Sub-Contract Works designed or to be designed by the
Sub-Contractor will on completion comply with the relevant Approved Design
Data;
(d) the Sub-Contract Works will comply with any enactment or statutory
requirement (or any procedures in respect thereof) applicable to the
Sub-Contract Works.
4. The Sub-Contractor shall:-
(a) save insofar as he is delayed by a reason for which the Contractor could obtain
an extension of time under the Contract (except for delay or default on the part
of the Sub-Contractor) supply the Employer or the Contractor with all drawings,
documents and information (including, without limitation, notices, programmes
and Design Data (if any) ) which the Sub-Contractor is required by the
Sub-Contract to provide at such times as the Employer or the Contractor
respectively may reasonably require and in any event so that the Engineer
appointed under the Main Contract will not be delayed in issuing instructions or
drawings to the Contractor for which delay the Contractor might have a valid
claim to an extension of time for completion of the Works or any part thereof or
a valid claim for loss and/or expense; and
(b) perform the Sub-Contract Works so that no act or omission of the

Sub-Contractor in relation thereto shall constitute, cause, or contribute to, any
breach by the Contractor of any of his obligations under the Main Contract.
F3 September 2020
5. No allowance of time by the Employer hereunder or under the Main Contract or by

the Contractor under the Sub-Contract, nor any forbearance or forgiveness in or in
respect of any matter or thing concerning this Warranty, the Main Contract or the
Sub-Contract on the part of the Employer or the Contractor, nor anything that the
Employer or the Contractor may do or omit or neglect to do, shall in any way release
the Sub-Contractor from any liability under this Warranty.
6. (a) The Sub-Contractor shall not exercise or seek to exercise any right which may
be or may become available to the Sub-Contractor to terminate the
Sub-Contract or treat the same as having been terminated or discontinue or
suspend the performance of any of his duties and obligations under the
Sub-Contract or treat his employment under the Sub-Contract as determined
without first giving to the Employer not less than 21 days prior notice in writing
of his intention to do so ("the Sub-Contractor's Notice") and specifying in such
notice his grounds for doing so.
(b) Within 21 days of the date of the Sub-Contractor's Notice or, if the
Sub-Contract or the employment of the Sub-Contractor thereunder shall be
automatically terminated pursuant to any of its provisions, within 21 days of
such automatic termination, the Employer may give written notice to the
Sub-Contractor ("the Novation Notice") that the Employer shall be substituted
for the Contractor as the first-named party to the Sub-Contract in accordance
with sub-clause (c) below.
(c) With effect from the date of the service of any Novation Notice:
(i) the Employer shall be substituted for the Contractor in the Sub-Contract
and all references in the Sub-Contract to the Contractor shall be construed
as references to the Employer;
(ii) the Sub-Contractor shall be bound to continue with the performance of his
duties and obligations under the Sub-Contract and any exercise or
purported exercise by the Sub-Contractor prior to the date of the Novation
Notice of any right to terminate the Sub-Contract or treat the same as
having been terminated or to discontinue or suspend the performance of
F4 September 2020
any of his duties or obligations under the Sub-Contract or to treat his

employment under the Sub-Contract as determined shall be of no effect;
(iii) the Employer shall become and be bound to perform all obligations and
duties of the Contractor under the Sub-Contract which fall to be performed
after the date of the Novation Notice and shall as soon as practicable
thereafter make payment of any amounts properly due to the
Sub-Contractor as at the date of the Novation Notice and still outstanding;
(iv) the Contractor shall be released from further performance of the duties
and obligations of the Contractor under the Sub-Contract, but without
prejudice to any rights and remedies of the Sub-Contractor against the
Contractor in respect of any matter or thing done or omitted to be done on
or before the date of service of the Novation Notice.
7. Entirely without prejudice to the rights and obligations as between the Employer and
the Sub-Contractor set out in this Warranty, the Sub-Contractor shall in addition
indemnify the Contractor for any losses, damages, costs and charges incurred by the
Contractor as a result of any breach by the Sub-Contractor of the terms of the
Warranty.
8. Notwithstanding anything contained in this Warranty and notwithstanding any

payments which may be made by the Employer to the Sub-Contractor the Employer
shall not be under any obligation to the Sub-Contractor unless the Employer shall
have served a Novation Notice pursuant to Clause 6 of this Warranty.
9. Insofar as any Intellectual Property Rights in or in respect of Design Data, plans,

calculations, drawings, documents, materials, inventions, business names,
know-how and information (including computer storage discs, computer print-outs,
computer programs, integrated circuit layouts and data files) relating to the
Sub-Contract Works shall be vested in the Sub-Contractor, the Sub-Contractor
grants to the Employer his successors and assigns a royalty free, non-exclusive and
irrevocable licence (together with the right to grant sub-licences) to use, reproduce,
modify, adapt and translate any of the works designs or inventions incorporated and
referred to in such documents or materials and any such know-how and information
for all purposes relating to the Works, the Railway and/or the Railway under
F5 September 2020
Construction (including without limitation the design, construction, reconstruction,

completion, maintenance, reinstatement, extension, repair and operation of the
Works, the Railway and/or the Railway under Construction). To the extent that the
beneficial ownership of such Intellectual Property Rights is vested in anyone other
than the Sub-Contractor, the Sub-Contractor shall use his best endeavours to
procure that the beneficial owner thereof shall grant a like licence to the Employer.
10. For the purposes of this Warranty, the terms "Design Data", "Approved Design Data",
"ABWF Works", "Intellectual Property Rights", "Railway" and "Railway under
Construction" shall have the same meanings as are ascribed to those terms in the
Main Contract.
11. In the event of any ambiguity or conflict between the terms of the Sub-Contract and
this Warranty, the terms of this Warranty shall prevail.
12. The provisions of this Warranty shall be without prejudice to and shall not be deemed
or construed so as to limit or exclude any rights or remedies which the Employer may
have against the Sub-Contractor whether in tort or otherwise.
13. Subject to Clause 6 of this Warranty, nothing contained in this Warranty shall vary or
affect the Sub-Contractor's rights and obligations under the Sub-Contract.
14. The Employer shall be entitled to assign the benefit of this Warranty at any time
without the consent of the Sub-Contractor being required.
15. The Contractor has executed this Warranty as confirmation of his concurrence with
and acceptance of the above arrangements and that he will observe and comply with
the same.
16. This Warranty shall be governed by and construed according to the laws of Hong
Kong and the parties submit to the non-exclusive jurisdiction of the Hong Kong
Courts.
F6 September 2020
IN WITNESS whereof this Warranty has been executed as a Deed on the date first before
written.

[the Sub-Contractor] )
was affixed hereto in )
the presence of : )
Director _______________________
Secretary______________________
OR
SIGNED SEALED AND )

DELIVERED for and on )
behalf of and as lawful )
attorney of [the Sub- )
of attorney dated )
by )
______________________________

as lawful attorney of )
MTR CORPORATION LIMITED )
by )
______________________________
F7 September 2020

[the Contractor] )
was affixed hereto in the )
presence of : )
Director _____________________
Secretary____________________
OR
SIGNED SEALED AND )

DELIVERED for and on )
behalf of and as lawful )
attorney of [the )
of attorney dated )
by )
______________________________
Notes :
(for preparation of but not inclusion in the engrossment of this Warranty).
(a) Where the Contractor comprises more than one company, it will be necessary to
add at this point:
"and ........ whose registered office is situate at/of...............

(jointly "the Contractor")," and to delete "("the Contractor")" from the existing
wording.
(b) If the Contractor comprises more than one company each member of the joint
venture or consortium must execute this Sub-Contract Warranty.
(c) These notes and the reference within the text to "Note a)" should be deleted
before the Sub-Contract Warranty is engrossed..
F8 September 2020
FOR

ENGINEERING WORKS
APPENDIX G
MTRCL MEDIATION RULES

NOVEMBER 1992 EDITION
(Refer Clause 103.8)
September 2020
APPENDIX G
MTRCL MEDIATION RULES

NOVEMBER 1992 EDITION
MEDIATION
1.1 These Rules are the MTRCL Mediation Rules (November 1992 Edition).
1.2 Mediation under these Rules is a private dispute resolution process in which a
neutral person ("the mediator") helps the parties to reach a negotiated
settlement. It should be entered into by both parties with an open mind in an
attempt to settle the dispute amicably. The mediation process will be
administered by the Hong Kong International Arbitration Centre ("HKIAC").
1.3 Either party may require the other party to participate in a mediation process in
accordance with these Rules, as provided for in the Conditions of Contract to
which these Rules are appended ("the Conditions of Contract"), but neither
party shall be bound by an opinion, report, direction or order of the mediator
except for an order in relation to costs made under Rule 20. The Conditions
of Contract require that all issues arising in a dispute shall have been the
subject of a reference to mediation in accordance with these Rules as a
condition precedent to the taking of any steps in an arbitration apart from the
formal appointment of an arbitrator.
1.4 Words and expressions used in these Rules shall have the meaning assigned
to them in the Conditions of Contract.
INITIATION OF MEDIATION PROCESS
2.1 In relation to any dispute which has been referred to arbitration in accordance
with Clause 103.5 of the Conditions of Contract either party may initiate a
mediation by delivering a written request for mediation ("the Request for
G1 September 2020
Mediation") to the other party with copies to the Engineer and to HKIAC, but no
mediation shall without the written consent of both parties be so initiated until
thirty (30) days have elapsed after the issue of the Certificate of Completion for
the whole of the Works or the determination or abandonment of the Contract,
or the determination of the Contractor's employment under the Contract
(whichever shall happen first).
2.2 The Request for Mediation shall contain a brief self-explanatory statement of
the nature of the dispute, the quantum in dispute (if any), and the relief or
remedy sought.
THE MEDIATOR
3. Mediation under these Rules will be conducted by a single mediator appointed

in accordance with Rule 4. The mediator shall have no authority under the
Contract or to bind the parties (other than by an order under Rule 20) but he
shall, where he considers it appropriate, make recommendations to the parties
for the purpose of resolving the dispute.
RESPONSE TO REQUEST FOR MEDIATION
4.1 Within seven (7) days after the delivery of the Request for Mediation the
parties shall exchange lists of those persons each of them proposes should be
invited to act as mediator. Each party's list shall propose a minimum of two (2)
persons, each of whom shall have confirmed that he is willing and able to act
as the mediator.
4.2 Within fourteen (14) days of the parties' exchange of lists pursuant to Rule 4.1
above the parties shall attempt to agree a person willing and able to act as the
mediator and, failing agreement, either party may request HKIAC to nominate
a mediator. Likewise, in the event that one party fails to provide a list of
proposed mediators in accordance with Rule 4.1 above, the other party may
request HKIAC to nominate a mediator.
4.3 Within fourteen (14) days of receipt of a request for nomination, HKIAC shall
nominate a mediator who is prepared to serve and is not disqualified under
Rule 6.
G2 September 2020
COMMENCEMENT OF THE MEDIATION
5.1 Subject to Rule 6, the mediation shall be deemed for the purposes of these
Rules to commence on the date ("the Mediation Commencement Date") of
appointment of a person willing and able to act as mediator being the date
upon which:
5.1.1 The parties agree the identity of the mediator under Rule 4.2 or
otherwise; or
5.1.2 HKIAC makes a nomination under Rule 4.3; or
5.1.3 HKIAC makes a nomination under Rule 6.
5.2 The party who served the Request for Mediation shall notify the Engineer and
HKIAC in writing of the identity of the mediator upon receipt of confirmation
from that person of his acceptance of the appointment.
DISQUALIFICATION OF THE MEDIATOR
6. No person shall serve as mediator in any dispute in which that person has any
financial or personal interest in the result of the mediation except by written
consent of the parties. Prior to accepting an appointment, the proposed
mediator shall disclose to HKIAC any circumstances likely to create a
presumption of bias or prevent a prompt resolution of the dispute. Upon
receipt of the information HKIAC shall immediately communicate the
information in writing to the parties for their comments. If any party serves a
written objection to the proposed mediator within seven (7) days of receipt of
such communication, he shall not be appointed. In such a case, within
fourteen (14) days of such written objection the HKIAC shall nominate a further
mediator in accordance with the terms of Rule 4.3.
CONDUCT OF THE MEDIATION
7. The mediator shall enter upon the mediation as soon as possible after his
appointment and shall use his best endeavours to conclude the mediation
(which for the avoidance of doubt will include provision of any report which
may be required by Rule 15) as expeditiously as possible, but in any event the
G3 September 2020
mediation process shall not continue for more than forty-two (42) days after the
Mediation Commencement Date unless the parties agree otherwise.
8. The parties shall at all times give assistance to the mediator to enable the
mediation to proceed.
9. The parties may be represented in the mediation by whomever they consider

appropriate. Within seven (7) days of the Mediation Commencement Date
the parties shall inform the mediator and the other party of the names and
addresses of the individuals who will represent them in the mediation.
10. The mediator shall inform himself in any way he thinks fit of the nature and
facts of the dispute including requiring the Engineer to see him.
11. The mediator shall conduct the mediation in such a manner as will permit full
and expeditious presentation to him by the parties of their views. The
mediator may see the parties together or separately for the purpose of
informing himself of the nature and facts of the dispute.
12. If the mediator considers it appropriate, or if he is requested by the parties, he

may express preliminary views orally or in writing on the matters in dispute
during the mediation. The mediator may, and shall if requested by the parties,
seek legal or other advice from third parties not connected with the dispute.
13. During the course of the mediation, the mediator may attempt various
compromise solutions with the parties in an informal manner. Should a
solution be agreed it will be accepted by both parties in accordance with Rule
17.
14. In the event that the mediator is unable to facilitate a satisfactory resolution, he
shall first notify the parties orally of his views.
15. If requested by either party (and notwithstanding that, pursuant to Rules 12

and/or 14, the mediator has notified the parties of his views and it is clear to the
mediator that a settlement during the course of the mediation is unlikely), the
mediator shall submit to the parties a written report setting out the facts as he
finds them, his opinion in relation to the matters in dispute (having regard to
G4 September 2020
those facts as found by him), and proposing terms of settlement which seem to
him to be appropriate. Within fourteen (14) days of receipt of the report the
parties will indicate, each to the other, whether the mediator's proposed terms
of settlement are acceptable in whole or in part. If, however, the mediator is
unable to produce a full report as envisaged by this Rule, he may at his
discretion produce a report on his views however incomplete or tentative if he
considers that it might assist the parties to resolve the dispute.
16. Notwithstanding Rule 7 but subject to producing any report requested under
Rule 15, the mediator may abandon the mediation whenever in his judgment
further efforts at mediation would not lead to a settlement of the dispute. The
mediator shall notify the parties in writing of any such abandonment by him,
whereupon the mediation shall automatically be terminated and the arbitration
previously commenced between the parties may proceed in accordance with
Clause 103.11 following such abandonment.
17. The mediation is regarded as being a private and confidential matter between
the parties to the Contract and the procedures of the mediation should be so
conducted. In the event that the mediation is successful, neither party shall
be bound until the terms of the settlement have been recorded in writing and
signed by both parties. Copies of the signed agreement shall be provided to
the Engineer by the party issuing the Request for Mediation, who shall also
inform HKIAC that the dispute has been settled.
18. Nothing that transpires during the course of the mediation (other than a signed
settlement agreement) is intended to or shall in any way affect the rights or
prejudice the position of the parties to the dispute under the Contract or in any
subsequent arbitration or litigation, and without derogating from the generality
of the foregoing and merely by way of example:
(a) any opinion given, report produced and terms of settlement

recommended by the mediator shall not be disclosed to the arbitrator
or court;
(b) the fact that information of whatsoever nature was made available to
the mediator does not mean that privilege or confidentiality is waived
for any subsequent arbitration or litigation; and
G5 September 2020
(c) the fact that the accuracy of information or the validity or meaning of
documents was not challenged during the mediation does not
preclude challenge in subsequent arbitration or litigation.
COSTS
19.1 Each party shall within seven (7) days of the Mediation Commencement Date
deposit the sum of HK$50,000 with HKIAC as a payment on account of the
cost and proper expenses of the mediation. The sum of HK$50,000 is subject
to review and adjustment by HKIAC.
19.2 The mediator may at any time during the course of the mediation require the
parties to make a further deposit or deposits with HKIAC to cover anticipated
additional fees and expenses.
19.3 In the event of default by a party in making a deposit required under Rule 19.1
or 19.2, the other party may either:
19.3.1 make such payment itself, in which case the provisions of Rule 20.1
will apply; or
19.3.2 serve notice on the party in default requiring payment within seven (7)
days failing which the mediation shall be deemed to be abandoned.
19.4 Subject to any order the mediator may make under Rule 20:
19.4.1 all fees and expenses of the mediator (including any costs incurred
pursuant to Rule 12) and all administrative costs and expenses of the
mediation and of the HKIAC shall be borne equally by the parties and
each party shall bear its own costs regardless of the outcome of the
mediation or of any subsequent arbitration or litigation;
19.4.2 at the conclusion of the mediation, HKIAC shall deduct the costs and
expenses of the mediation from the monies deposited under Rule
19.1 or 19.2 and shall return any surplus as follows:
G6 September 2020
19.4.2.1 in the event and to the extent of any payment made under
Rule 19.3.1, to the party making such payment;
19.4.2.2 subject to Rule 19.4.2.1, to the parties in equal shares.
19.4.3 in the event that at the conclusion of the mediation the costs and
expenses of the mediation exceed the monies deposited under Rules
19.1 or 19.2, the mediator may order the shortfall to be paid equally
by the parties. The Employer will pay the full amount of the shortfall
to HKIAC within twenty-one (21) days of such order and the
Contractor will reimburse the Employer half the amount of such
shortfall within twenty-eight (28) days of such order.
20.1 The mediator shall have power:
20.1.1 to order one party to reimburse the other party such sum or sums as
may have been deposited by the other party under Rule 19.3.1 to the
extent that such sum or sums will not be refunded by HKIAC in
accordance with Rule 19.4.2.1;
20.1.2 in the event that the mediator finds that the mediation has been
initiated or conducted frivolously or vexatiously, to order the party
who in his opinion initiated or conducted the mediation in a frivolous
or vexatious manner to reimburse the other party, in full or in such
part as the mediator considers appropriate, in respect of:
20.1.2.1 the other party's liability for the fees and expenses of the
mediator and the administrative costs of the mediation;
and/or
20.1.2.2 the other party's legal or other costs reasonably incurred

in connection with preparation for and attendance during
the mediation, such costs to be assessed by the mediator
in default of agreement between the parties.
G7 September 2020
20.2 Both parties agree to be bound by an order of the mediator made under Rule
20.1 and any liability on one party to make payment to the other party pursuant
to such an order shall be deemed a debt due.
MEDIATOR NOT SUBSEQUENTLY TO ACT AS ARBITRATOR
21. The mediator shall not be appointed as arbitrator in any subsequent arbitration
between the parties, whether arising out of the dispute or otherwise arising out
of or in connection with the Contract, unless the parties agree otherwise in
writing. Neither party shall be entitled to call the mediator as a witness in any
subsequent arbitration or litigation arising out of or in connection with the
Contract. Any communications whether oral or written which either party
shall have with the mediator or with other parties in connection with the
mediation shall be absolutely privileged.
WRITTEN RECORD
22. No formal written record shall be kept of the mediation process. Any written
view expressed under Rule 12, the written report provided for in Rule 15 and
any notes or record made by the mediator, and/or the parties, shall remain
private and confidential and not subject to disclosure in any subsequent
proceedings.
EXCLUSION OF LIABILITY
23. It is agreed that the mediator and the HKIAC shall not be liable to any party for
any act or omission in connection with any mediation conducted under these
Rules, save for the consequences of fraud or dishonesty.
LANGUAGE
24. The language of the mediation shall be English and all written communications
and all hearings shall be conducted in the English language unless the parties
and the mediator otherwise agree.
G8 September 2020

03 1741 COC-已解锁

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

03 1741 COC-已解锁

Uploaded by

Copyright:

Available Formats

D/MTRCL/NW/E&M/COC/001/A6

MTR CORPORATION LIMITED

ELECTRICAL AND MECHANICAL ENGINEERING WORKS

© 2020 MTR Corporation Limited.

Index to Conditions xvi - xxxiii

Conditions of Contract 1 - 130

Appendix A - Formal Agreement A1 - A3

Appendix C - Parent Company Guarantee C1 - C4

Appendix D - Joint and Several Guarantee D1 - D4

Appendix E - Special Conditions of Contract E1 - E2

Appendix F - Form of Sub-Contractor Warranty F1 - F8

Appendix G - MTRCL Mediation Rules G1 - G8

ELECTRICAL AND MECHANICAL

DEFINITIONS AND INTERPRETATION

1.2 Singular and Plural 11

1.3 Masculine, Feminine and Neuter 11

1.4 Headings and Marginal Notes 11

1.5 Clause Numbers 11

1.6 Governing Law 11

1.6A Opting Out of the Contracts (Rights of Third Parties) Ordinance 11

1.9 References to Sub-Contractor 12

ENGINEER AND ENGINEER'S REPRESENTATIVE

2.1 Duties and Powers of Engineer 12

2.2 Engineer to Act Impartially 13

2.3 Functions of Engineer's Representative 13

2.4 Appointment of Assistants 13

2.5 Delegation by Engineer 14

2.7 Reference to Engineer or Engineer's Representative 14

2.8 Duration of Engineer's, Engineer's Delegate's 15

2.9 Approval, consent not to relieve Contractor 15

3.1 Authorised Person 15

ASSIGNMENT AND SUB-LETTING

6.1 Conditions of Contract to Prevail 17

6.2 Engineer to Explain Ambiguities 17

6.3 Documents Confidential 18

7.1 Provision of Drawings and Documents 18

7.2 Further Drawings and Instructions 18

7.3 Notice by Contractor 18

7.4 Delay in Information 19

8.1 Documents (Other than Design Data) 19

8.3 Non-compliance of Documents 20

8.4 Approval of Documents by Engineer 20

8.5 Custody of Documents 20

8.6 Submissions in Electronic Form 20

9.1 Design Data 20

9.2 Submission of Design Data 20

9.4 Errors in Design Data 21

9.7 Delay in Approval of Design Data 21

GENERAL OBLIGATIONS AND WARRANTIES

10.1 Contractor's General Responsibilities 23

10.2 Contractor's Responsibility for Design 24

10.4 Contractor Responsible for Safety of Site 24

10.5 Works subject to Buildings Ordinance 24

10.6 Joint Ventures 25

11.1 Contractor's Warranties 25

12.1 Formal Agreement 26

iii September 2020

14.1 Inspection of Site and Hydrological 27

15.1 Programmes to be Furnished 28

15.2 Three Month Rolling Programme 29

15.3 Preliminary Installation Programme 28

15.4 Co-ordinated Installation Programme 28

15.5 Installation Programme 29