ZGCC4 SET 3

SPECIAL RISK
68 (1) Outbreak of war
If there is outbreak of war during the contract whether
declared or not which materially affect the execution
of works
Or imposition of sanctions (mandatory or economic)
The contractors is required to use his best endeavors to
complete the wks unless the contract is determined
 However the employer is entitled to determine the
contract by giving a written notice to the contractor
after such outbreak or imposition of sanctions
 Upon such notice the contract can terminate but

without prejudice to the rights of either party in

respect of any antecedent breach (previous) thereof
2) Removal of plant on determination
If the contract is determined as previously highlighted
the contractor is required to remove from site all
constructional plant belonging to him.
The same facility is also extended to his sub
contractors
 If the contractor fails the employer will proceed as

highlighted in clause 55(6) in regard to failure to

remove construction plant on completion of the wks
but subject to clause 55(7)(not liable for any damage or loss)
(3) Payment on determination
If the contract is determined the contractor shall be
paid by the employer all amounts which the
employer would have not yet paid, for all wks
executed prior to the date of determination
 The contractor shall be paid @rates and prices set

out in the contract and in addition

a)The amount payable in respects of any preliminary
items so far as the wks or services comprised
therein has been carried out or performed
and a proper proportion as certified by the Eng for
wks which have been partially carried out or
performed
b) Cost of materials or goods reasonably ordered for
the wks which have been delivered to the
contractor or which the contractor is legally liable
to accept delivery
And such goods or material becoming the property of
the employer upon payment
c) Any amounts incurred by the contractor in
expectations of completing the wks provided those
expenses are not covered in payments mentioned
before
d) Any additional sums payable under provisions of
sub clause 4(b)
e) The reasonable cost of removal under sub clause (2)
4) Provisions to apply as from outbreak of war
Whether the contract is determined or not the
following provisions shall apply or deemed to have
applied from the date of outbreak of war or date of
imposition of sanctions
The contractor is not under any liability to indemnify
the employer against any damage to the wks or
property other than his property or property hired
by him
The employer shall indemnify the contractor against
all liabilities which are as a result of direct or
indirect war hostilities whether war has been
declared or not
b) If the wk or materials on site shall sustain
destruction or any damage by reason of war
The contractor is entitled to payment for any
permanent wk destroyed or damaged
The contractor is entitled to be paid by the employer
the cost of making good any destructed or damaged
wk as may be required by the Eng
or as may be necessary for the completion of the wks
on a prime cost basis plus profit determined by the
Eng
c) Damage or injury caused by weapons of destruction
whether before or after the cessation of hostilities
shall be deemed to be consequences of any event
mentioned under sub clause 4(a)
5) Riot commotion disorder or state of emergency
If riot, commotion or declared state of emergency
shall disrupt supply of labour or materials for a
continuous period of at least 30days
The contractor shall be entitled to determine the
contract by notice in writing to the employer
unless the employer agrees to bear all resultant
increased costs involved in continuing with the wks
provided @ the end of 30days
The employer can also determine the contract after
giving the contractor 30 days notice in writing
 If the contract is determined the employer shall be

liable to pay the same sums as would have been

payable under sub clause (3)
 Payment in the event of frustration

 In the event of contract being frustrated or it

becoming impossible to perform either by reason of

war or otherwise.
 The contract shall be deemed to have been
terminated by the employer and the employer
shall be liable to pay the sum as would have
been payable under sub clause (3)
 Dispute
69) Settlement of disputes
In case of any dispute or any difference between the
contractor and the employer or the Eng
 The dispute is settled by the Eng

The Eng is required to state his decision in writing to

both the contractor and the employer
Eng’s decision is final and binding upon the contractor
and the employer
If the Eng fails to give decision within 28 days after
being requested to settle the dispute
Or either the contractor or employer are dissatisfied by
the Eng’s decision
 Then either the contractor or the employer may

within 28days after receiving notice of the Eng’s

decision or after the expiration of the said 28 days
 The case can be referred to mediation.

The mediator is selected by agreement between the

parties
 If parties fail to agree on the mediator he will be

selected by the president for Zim Institute of Eng

 The mediator is required to give his opinion on the
matter within reasonable period of time
and furnish the Employer, Eng and the contractor with
a copy of his opinion
The opinion expressed by the mediator shall be final
and binding upon the employer and the contractor
unless and until referred to arbitration
 Arbitration
If the contractor or the employer is not willing to
accept mediation or dissatisfied with the opinion of
the mediator
 The employer or the contractor shall within 28 days

after receiving the mediator’s opinion request that

their case be referred to a single arbitrator to be
agreed between the parties
 Failure to agree on the arbitrator he shall be nominated
on the application of either party by the president of
the institute of Eng in consultation with the chairman
of ZACE and the president of Federation of Civil Eng
 The award of the arbitrator shall be final and binding

on the parties
 Except as to withholding of a payment certificate by

the Eng or withholding of any part of the retention

monies under clause 62 to which the contractor claims
to be entitled
or to the exercise of the Eng’s power to give a
certificate under sub clause 65(1) shall not be
opened until after the completion of the wks,
unless with the written consent of the
employer and the contractor
4) Provisos (provisions) or conditions
Notwithstanding anything elsewhere provided
a) The cost of mediation shall be determined by the
mediator and shall comprise
i) All reasonable costs incurred in about mediation
ii) A fee based on scale determined from time to time for the
purpose of this clause by the chairperson of ZACE
The cost for mediation shall be borne equally by all the
parties and it is paid upon presentation of the account by
the mediator
b) The Eng’s power in giving a certificate in terms of
sub clause 65(1) shall not be subject for mediation in
terms of sub clause (2) but only for arbitration in
terms of sub clause(3)
c) The submission and opinion of the mediator shall not
prejudice the rights of the parties in any manner in
their proceedings to arbitration
d) Giving of certificate of completion under clause 48 or
that certificate under sub clause 64(1) shall not be a
condition precedent to the opening of such reference
e) No decision given by the Eng in accordance with
the given provisions shall disqualify him from being
called as a witness to give evidence before the
mediator or the arbitrator on any matter whatsoever
relevant to the dispute or difference referred to
arbitration
f) The arbitrator shall have full power to open up,
review and revise any decision, opinion, direction,
certificate or valuation of the Eng
 Neither party shall be limited in proceedings before
such arbitrator to the evidence or arguments put
before the Eng for the purpose of obtaining his
decision as referred to in sub clause (1) of this
clause
g) Should the president referred in sub clause (2) be
interested personally in the contract
the function of appointing a mediator or arbitrator
shall be performed by a vice president of the ZIE
h) If the chairman or president of the association
or federation has interest in the contract then
the president of the ZIE shall consult with the
most senior executive
 VARIATION OF PRICES
1) Variation of price(plant labour & materials)
 Unless specified the contract price is subject to

adjustments in terms of the following

a) Variation in labour cost occurring after the date of
tender which might result from any statute,
enactment or regulation or as a result of a decision
of any body recognised for regulating wages in any
trade or industry to which the contractor undertaking
civil wks can give effect by agreement
b) Any variation between the actual cost of
materials/fuel listed in the tender and basic price
quoted
c) Any variation to the cost of wks resulting from
formal application to the contract after date of tender
of any enactment or regulation having the force of
law
If variations are +ve then the contractor can add not
more than 5% to the net amount
 The contractor shall within 30 days after such
variations as mentioned become effective, give
written notice to the Eng
2. Production of vouchers etc
The contractor shall produce all invoices, vouchers
and receipts as the Eng may request, in respect of
payments made by him in connection with the
variation of prices
3) Variation after completion date
 Variation in cost or indices taking place after the
expirely of time for completion will not be taken into
account in the valuation of wk remaining incomplete@
that date
VARIATION OF PRICES (ALTERNATIVE
CLAUSE)
1) Variation of prices (plant, labour &materials)
 Except where it is provided for the rates and prices
tendered in the bill shall be final and binding throughout
the period of the contract
2) The value of certificates issued in terms of clause
62 shall be increased or decreased by applying a
contract price adjustment factor calculated
according to the formula and conditions set out in
the contract price adjustment schedule
Except if the contract has a duration of 12 month or
less
The contract price shall be adjusted in terms of sub
clauses 4,5 &6 of this clause
3) Price adjustment for variations in cost of special
materials specified in the appendix to the tender
shall be made in the same manner set out in the
contract price adjustment schedule
4) For contracts of short duration, the contract price
shall be subject to adjustment in respect of the
variations used as follows
 Any variation in labour costs accounting after the
date of tender by reason of any statute or regulation
having force of law of regulating wages in any trade
or industry to which the contractor undertaking wk
give effect by agreement
 Or in practice or in consequence of variation in the

general level of wages, hours and conditions

observed by other employers whose general
circumstances in the trade or industry in which the
contractor is engaged are similar
b) Any variation between the actual cost on site @
ruling market prices of any materials and or fuels
listed in the tender and basic price as quoted therein
c) Any variation to the cost of wks resulting from
formal application in the contract after the date of
tender of any statute enactment or regulation having
the force of law
The contractor is required within 30 days after such
variation give a written notice to the Eng
5) The contractor shall produce all invoices ,vouchers
receipts when required by the Eng, in respects of
payments made in connection with variation of price
6) Variation of price or indices taking place after expirely
of the time for completion will not be taken into account
in valuation of wks remaining incomplete @ that date
7)If the adjustments calculated in terms of sub clause
70A(2) -70A(4) result in an increase in price, the
contractor is entitled to be paid not more than 5% of the
amount by which the price has been increased in
addition to the increased price
 NOTICES
71(1) Services of notices on contractor
The contractor is required to give the employer an
address in Zimbabwe and any notice to be given to
the contractor under the contract shall be served by
sending the same with a registered post to or
leaving the same @ such address
or by delivering the same to the contractor’s offices
on site and obtain a receipt from the contractor or
his agent or representative appointed in terms of
clause (15)
2) Service of notice on Employer
Any notice to be given to the employer under the
terms of the contract shall be served by sending the
same by registered post to the employer’s last
known address
or leaving it @ the same address or in case of the
employer being a company @ the company
registered offices
 Law applicable
Law applicable to contract
The contract shall in all respects be governed by the
law of Zim and the contracting parties submit to the
jurisdiction of the courts of Zim in relation to the
contract