Tổng đài luật sư trực tuyến gọi: 1900.6162

Luật sư tư vấn pháp luật trực tuyến qua điện thoại gọi:  1900.6162

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CONDITIONS OF CONTRACT

 

         Definitions and Interpretation

1.1.   Definitions

         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:

         (a)    (i)    “Employer” means ABC. Co. Ltd. and the legal successors in title to such person, but not (except with the consent of the Contractor) any assignee of such person.

                 (ii)   “Contractor” means the person whose Tender has been accepted by the Employer and the legal successors in title to such person, but not (except with the consent of the Employer) any assignee of such person.

                 (iii)   “Subcontractor” means any person named in the Contract as a Subcontractor for a part of the Works or any person to whom a part of the Works has been subcontracted with the consent of the Engineer and the legal successors in title to such person, but not any assignee of any such person.

                 (iv)  “Engineer” means the person appointed by the Employer to act as a Engineer for the purposes of the Contract and carry out any of his duties and authority specified in Sub-Clause 2.1, and named as such in Appendix to Tender.

                 (v)   “Engineer’s Representative” means a person appointed from time to time by the Engineer under Sub-clause 2.2.

         (b)   (i)    “Contract” means these Conditions, the Specification, the Drawings, the Bill of Quantities, the Tender, the Letter of Acceptance, the Contract Agreement (if completed) and such further documents as may be expressly incorporated in the Letter of Acceptance or Contract Agreement (if completed).

                 (ii)   “Specification” means the specification of the Works included in the Contract and any modification thereof or addition thereto made under Clause 51 or submitted by the Contractor and approved by the Engineer.

                 (iii)   ”Drawings” means all drawings, calculations and technical information of a like nature provided by the Engineer to the Contractor under Contract and all Drawings, calculations, samples, patterns, models, operation and maintenance manuals and other technical information of a like nature submitted by the Contractor and approved by the Engineer.

                 (iv)  “Bill of Quantities“ means the priced and completed bill of quantities forming part of the Tender.

                 (v)   “Tender” means the Contractor‘s priced offer to the Employer for the execution and completion of the Works and remedying of any defects therein in accordance with the provisions of the Contract, as accepted by the Letter of Acceptance.

                 (vi) “Letter of Acceptance” means the formal acceptance by the Employer of the Tender.

                 (vii)  “Contract Agreement” means the contract agreement (if any) referred to in Sub-Clause 9.1

                 (viii) “Appendix to Tender” means the appendix comprised in the form of Tender annexed to these Conditions.

         (c)    (i)    “Commencement Date” means the date upon the Contractor receives the notice to commence issued by the Engineer pursuant to Clause 41.

                 (ii)   “Time for Completion” means the time for completing the execution of and passing the Tests on Completion of the Works or any section or part thereof as stated in the Contract (or as extended under Clause 44) calculated from the Commencement Date.

         (d)   (i)    “Tests on Completion” means the tests specified in the Contract or otherwise agreed by the Engineer and the Contractor which are to be made by the Contractor before the Works or any Section or part thereof taken over by the Employer.

                 (ii)   “Taking-Over Certificate “ means a certificate issued pursuant to Clause 48.

         (e)    (i)    “Contract Price” means the sum stated in the Letter of Acceptance as payable to the Contractor for the execution and completion of the Works and the remedying of any defects therein in accordance with the provisions of the Contract.

                 (ii)   “Retention Money” means the aggregate of all monies retained by the Employer pursuant to Sub-clause 60.2 (a).

                 (iii)   ”Interim Payment Certificate” means any certificate of payment issued by the Engineer other than the Final Payment Certificate.

                 (iv)  Final Payment Certificate” means the certificate of payment issued by the Engineer pursuant to Sub-Clause 60.8.

         (f)    (i)    “Works” means the Permanent Works and the Temporary Works or either of them as appropriate.

                 (ii)   “Permanent Works” means the permanent works to be executed (including Plant) in accordance with the Contract.

                 (iii) “Temporary Works” means all temporary works of every kind (other than Contractor’s Equipment) required in or about the execution and completion of the Works and remedying of any defects therein.

                 (iv)  ”Plant” means machinery, apparatus and the like intended to form or forming part of the Permanent Works.

                 (v)   “Contractor’s Equipment” means all appliances and things of whatsoever nature (other than temporary Works) required for the execution and completion of the Works and the remedying of any defects therein, but does not include Plant, materials or other things intended to form or forming part of the Permanent Works.

                 (vi)  ”Section” means a part of the Works specifically identified in the Contract as a Section.

                 (vii)  “Site” means the places provided by the Employer where the Works to be executed and any other places as may be specifically designated in the Contract as forming part of the Site.

         (g)    (i)    “cost” means all expenditure properly incurred or to be incurred, whether on or off the site, including overhead and other charges properly allocable thereto but does not include any allowance for profit.

                 (ii)   “day” means calendar day.

                 (iii)   “foreign currency” means a currency of a country other than that in which the Works are to be located.

                 (iv)  “writing” means any hand-written, type-written, or printed communication, include telex, cable and facsimile transmission.

         Headings and Marginal Notes

1.2    The heading and marginal notes in these Conditions shall not be deemed part thereof or be taken into consideration in the interpretation or construction thereof or of the Contract.

         Interpretation

1.3    Words importing persons or parties shall include firms and corporations and any organisation having legal capacity.

         Singular and Plural

1.4    Words importing the singular only also include the plural and vice versa where the context requires.

         Notices, Consents, Approvals, Certificates and Determinations

1.5    Whenever in the Contract provision is made for the giving or issue of any notice consent, approval, certificate or determination by any person, unless otherwise specified such notice, consent, approval, certificate or determination shall be in writing and the words: ”notify”, “certify” or “determine” shall be construed accordingly. Any such consent, approval, certificate or determination shall not unreasonably be withheld or delayed.

         ENGINEER AND ENGINEER’S REPRESENTATIVE

         Engineer’s Duties and Authority

2.1    (a) The Engineer shall carry out the duties specified in the Contract.

         (b) The Engineer may exercise the authority specified in or necessarily to be implied from the Contract, provided, however, that if the Engineer is required, under the terms of his appointment by the Employer, to obtain the specific approval of the Employer before taking any of the following actions:

            (i)    approving subletting of any part of the Works under Clause 4,

            (ii)    certifying additional cost determined under Clause 12,

            (iii)   determining an extension of time under Clause 44,

            (iv)   issuing a variation under Clause 51, except in an emergency situation, as reasonable by the Engineer, or of such variation would increase the Contract Price less than 2.00 %,

            (v)   issuing a Taking-Over Certificate pursuant to Clause 48.1, a Defects [t1] Liability Certificate pursuant to Clause 61.2,

            (vi)   certifying payment of retention amounts pursuant to Clause 60.3 or payment after termination pursuant to Clause 63.3.  

         Provided further that any requisite approval shall be deemed to have been given by the Employer for any such authority exercised by the Engineer.

         (c) Except as expressly stated in the Contract, the Engineer shall have no authority to relieve the Contractor of any of his obligations under the Contract.

         Engineer’s Representative

2.2    The Engineer’s Representative shall be appointed by and be responsible to the Engineer and shall carry out such duties and exercise such authority as may be delegated to him by the Engineer under Sub-Clause 2.3

         Engineer’s Authority to Delegate

2.3    The Engineer may from time to time delegate to the Engineer’s Representative any of the duties and authorities vested in the Engineer and he may at any time revoke such delegation. And such delegation or revocation shall be in writing and shall not take effect until a copy thereof delivered to the Employer and the Contractor.

         Any communication given by the Engineer’s Representative to the Contractor in accordance such delegation shall have the same effect as thought it had been given by the Engineer. Provided that:

         (a) any failure of Engineer’s Representative to disapprove any work, materials or plant shall not prejudice the authority of the Engineer to disapprove such work, materials or Plant and to give instructions for the rectification thereof; and       

         (b) if the Contractor questions any communication of the Engineer’s Representative he may refer the matter to the Engineer who shall confirm, reverse or vary the contents of such communication.

         Appointment of Assistance

2.4    The Engineer or the Engineer’s Representative may appoint any number of persons to assist the Engineer’s Representative in the carrying out of his duties under Sub-Clause 2.2. He shall notify to the Contractor the names, duties and scope of authority of such persons. Such assistants shall have no authority to issue any instructions to the Contractor save in so far as such instructions may be necessary to enable them to carry out their duties and to secure their acceptance of materials, Plant or workmanship as being in accordance with the Contract and any instructions given by the Engineer’s Representative.

         Instructions in Writing

2.5    Instructions given by the Engineer shall be in writing, provided that if for any reason the Engineer considers it necessary to give any such instruction orally, the Contractor shall comply with such instruction. Confirmation in writing of such oral instruction given by the Engineer, whether before or after the carrying out of the instruction, shall be deemed to be an instruction within the meaning of this Sub-Clause. Provided further that if the Contractor, within 7 days, confirms in writing to the Engineer any oral instruction of the Engineer and such confirmation is not contradicted in writing within 7 days by the Engineer, it shall be deemed to be an instruction of the Engineer.

         The provisions of this Sub-Clause shall equally apply to instructions given by the Engineer’s Representative and any assistants of the Engineer or the Engineer’s Representative appointed pursuant to Sub-Clause 2.4.

         Engineer to Act Impartially

2.6    Whenever under Contract, the Engineer is required to exercise his discretion by:

         (a) giving his decision, opinion or consent,

         (b) expressing his satisfaction or approval,

         (c) determining value, or

         (d) otherwise taking action which may affect the rights and obligations of the Employer or the Contractor

         he shall exercise such discretion impartially within the term of the Contract and having regard to all the circumstances. Any such decision, opinion, consent, expression of satisfaction, or approval, determination of value or action may be opened up, reviewed or revised as provided in Clause 67.

         ASSIGNMENT AND SUBCONTRACTING

         Assignment of Contract

3.1    The Contractor shall not, without the prior consent of the Employer (which consent, notwithstanding the provisions of Sub-Clause 1.5, shall be at the sole discretion of the Employer), assign the Contract or any part thereof, or any benefit or interest therein or thereunder, otherwise than by:

         (a) a change in favour of the Contractor’s bankers of any monies due or to become due under the Contract, or

         (b) assignment to the Contractor’s insurers (in cases where the insurers have discharged the Contractor’s loss or liability) of the Contractor’s right to obtain relief against any other party liable.

         Subcontracting

4.1    The Contractor shall not subcontract the whole of the Works. Except where otherwise provided by the Contract, the Contractor shall not subcontract any part of the Works without the prior consent of the Engineer. Any such consent shall not relieve the Contractor from any liability or obligation under the Contract and he shall be responsible for the acts, default and neglects of any subcontractor, his agents, servants or workmen as fully as if they were the acts, defaults or neglects of the Contractor, his agents, servants or workmen.

         Provided that the Contractor shall not be required to obtain such consent for:

         (a) the provision of labour,

         (b) the purchase of materials which are accordance with the standards specified in the Contract, or

         (c) the subcontracting of any part of the Works for which the Subcontractor is named in the Contract.

         Assignment of Subcontractor’s Obligations

4.2    In the event of a Subcontractor having undertaken towards the Contractor in respect of the work executed, or the goods, materials, Plant or services supplied by such Subcontractor, any continuing obligation extending for a period exceeding that of the Defects Liability Period under the Contract, the Contractor shall at any time, after the expiration of such Period, assign to the Employer, at the Employer ‘s request and cost, the benefit of such obligation for the unexpired duration thereof.

         CONTRACT DOCUMENTS

         Language(s) and Law

5.1    (a) The language of the Contract is the English language and Vietnamese language with the same value. All documents and correspondence to be prepared and produced under the Contract shall be written in the English language and Vietnamese language. In case of any discrepancy or ambiguity, the English language shall prevail upon,

         (b) The Contract shall be governed by and construed in accordance with the laws of The United Kingdom.

         Priority of Contract Documents

5.2    The several documents forming the Contract are to be taken as mutually explanatory of one another but in case of ambiguities or discrepancies the same shall be explained and adjusted by the Engineer who shall thereupon issue to the Contractor instructions thereon and in such event, unless otherwise provided in the Contract, the priority of the documents forming the Contract shall be as follows:

                     (1) The Contract Agreement (if completed);

                     (2) The Letter of Acceptance;

                     (3) The Tender;

                     (4) These Conditions; and

                     (5) Any other document forming part of the Contract.

         Custody and Supply of Drawings and Documents

6.1    The Drawing shall remain in the sole custody of the Engineer, but two copies thereof shall be provided to the Contractor free of charge. The Contractor shall make at his own cost any further copies required by him. Unless it is strictly necessary for the purposes of the Contract, the Drawings, Specification and other documents provided by the Employer or the Engineer shall not, without the consent of the Engineer, be used or communicated to a third party by the Contractor. Upon issue of the Defects Liability Certificate, the Contractor shall return to the Engineer all Drawings, Specification and other documents provided under the Contract .

         The Contractor shall supply the Engineer four copies of all Drawings, Specification and other documents submitted by the Contractor and approved by the Engineer in accordance with Clause 7, together with a reproducible copy of any material which cannot be reproduced to an equal standard by photocopying. In addition the Contractor shall supply such further copies of such Drawings. Specification and other documents as the Engineer may request in writing for the use of the Employer, who shall pay the cost thereof.

         One Copy of Drawings to be kept on Site

6.2    One copy of the Drawings, provided to or supplied by the Contractor as aforesaid, shall be kept by the Contractor on the Site and the same shall at all reasonable times be available for inspection and use by the Engineer and by any other person authorised by the Engineering in writing.

         Disruption of Progress

6.3    The Contractor shall give notice to the Engineer, with a copy to the Employer, whenever planning or execution of the Works is likely to be delayed or disrupted unless any further drawing or instruction is issued by the Engineer within a reasonable time. The notice shall include details of the drawing or instruction required and of why and by when it is required and of any delay or disruption likely to be suffered if it is late.

         Delay and Cost of Delay of Drawings

6.4    Void.

         Failure by Contractor to Submit Drawings

6.5    If the failure or inability of the Engineer to issue any drawings or instructions is caused in whole or in part by the failure of the Contractor to submit Drawings.

         Specification or other documents which he is required to submit under the Contract, the Engineer shall take such failure by the Contractor into account when making his determination  pursuant to :

         (a) any extension of time to which the Contractor is entitled under Clause 44, and

         (b) the amount of such costs, which shall be added to the Contract Price, 

         and shall notify the Contractor accordingly, with a copy to the Employer.

         Supplementary Drawings and Instructions

7.1    The Engineer shall have authority to issue to the Contractor, from time to time, such supplementary Drawings and instructions as shall be necessary for the purpose of the proper and adequate execution and completion of the Works and the remedying of any defects therein. The Contractor shall carry out and be bound by the same.

         Permanent Works Designed by Contractor

7.2    Where the Contract expressly provides that part of the Permanent Works shall be designed by the Contractor, he shall submit to the Engineer, for approval:

         (a) such drawings, specifications, calculations and other information as shall be necessary to satisfy the Engineer as to the suitability and adequacy of that design, and

         (b) operation and maintenance manuals together with drawings of the Permanent Works as completed, in sufficient detail to enable the Employer to operate, maintain, dismantle, reassemble and adjust the Permanent Works incorporating that design. The Works shall not be considered to be completed for the purposes of taking over in accordance with Clause 48 until such operation and maintenance manuals, together with drawings on completion, have been submitted to and approval by the Engineer.

         Responsibility Unaffected by Approval

7.3    Approval by the Engineer, in accordance with Sub-Clause 7.2, shall not relieve the Contractor of any of his responsibilities under the Contract.

         GENERAL OBLIGATIONS

         Contractor’s General Responsibilities

8.1    The Contractor shall, with due care and diligence, design (to the extent provided for by the Contract), execute and complete the Works and remedy any defects therein in accordance with the provisions of the Contract. The Contractor shall provide all superintendence, labour, materials, Plant, Contractor’s Equipment and all other things, whether of a temporary or permanent nature, required in and for such design, execution, completion and remedying of any defects, so far as necessity for providing the same is specified in or is reasonably to be inferred from the Contract.

         The Contractor shall give prompt notice to Engineer, with a copy to the Employer of any error, omission, fault or other defect in the design of or Specification for the Works which he discovers when reviewing the Contract or executing the Works.

         Site Operations and Methods of Construction

8.2    The Contractor shall take full responsibility for the adequacy, stability and safety of all Site operations and methods of construction. Provided that the Contractor shall not be responsible (except as stated hereunder or as may be otherwise agreed) for the design or specification of Permanent Works, or for the design or specification of any Temporary Works not prepared by the Contractor. Where the Contract expressly provides that part of the Permanent Works shall be designed by the Contractor, he shall be fully responsible for that part of such Works, notwithstanding any approval by the Engineer.

         Contract Agreement

9.1    The contractor shall, if called upon so to do, enter into and execute the Contract Agreement, to be prepared and completed at the cost of the Employer, in the form annexed to these Conditions with such modification as may be necessary.

         Performance Security

10.1  If the Contract requires the Contractor to obtain security for this proper performance of the Contract, he shall obtain and provide to the Employer such security within 28 days after the receipt of the Letter of Acceptance, in the sum stated in the Appendix to Tender. When providing such security to the Employer, the Contractor shall notify the Engineer of so doing. Such security shall be in the form annexed to these Conditions or in such other form as may be agreed between the Employer and the Contractor. The institution providing such security shall be subject to the approval of the Employer. The cost of complying with the requirements of this Clause shall be borne by the Contractor, unless the Contract otherwise provides

         Any amount deducted from the performance security shall be immediately reimbursed by the Contractor to the guaranteeing  bank in order to maintain its full value throughout its validity period.

         Period of Validity of Performance Security

10.2  The performance security shall be valid until the Contractor has executed and completed the Works and remedied any defects therein in accordance with the Contract. No claim shall be made against such security after the issue of the Defects Liability Certificate in accordance with Sub-Clause 62.1 and such security shall be returned to the Contractor with in 14 days of the issue of the said Defects Liability Certificate.

         Claims under Performance Security

10.3  Prior to making a claim under the performance security the Employer shall, in every case, notify the Contractor stating the nature of the default in respect of which the claim is to be made.

         Inspection of Site

11.1  The Employer shall have made available to the Contractor, before the submission by the Contractor of the Tender, such data on hydrological and sub-surface conditions as have been obtained by or on behalf of the Employer from investigations undertaken relevant to the Works but the Contractor shall be responsible for his own interpretation thereof.

         The Contractor shall be deem to have inspected and examined the Site and its surroundings and information available in connection therewith and to have satisfied himself (so far as is practicable, having regard to considerations of cost and time) before submitting his Tender, as to:

         (a)  The form and nature thereof, including the sub-surface conditions,

         (b)  The hydrological and climatic conditions,

         (c) The extent and nature of work and materials necessary for the execution and completion of the Works and remedying of any defects therein, and

         (d)  The means of access to the Site and the accommodation he may require,

         and, in general, shall be deemed to have obtained all necessary information subject as above mentioned, as to risks, contingencies and all other circumstances which may influence or affect his Tender.

         The Contractor shall be deemed to have based his Tender on the data made available by the Employer and on his own inspection and examination, all as aforementioned.

         Sufficiency of Tender

12.1  The Contractor shall be deemed to have satisfied himself as to the correctness and sufficiency of the Tender and of the rates and prices stated in the Bill of Quantities, all of which shall, except insofar as it is otherwise provided in the Contract, cover all his obligations under Contract (including those in respect of the supply of goods, materials, Plant or services or of contingencies for which there is a Provisional Sum) and all matter and things necessary for the proper execution and completion of the Works and the remedying of any defects therein.

         Not Foreseeable Physical Obstructions or Conditions

12.2  Void

         Work to be in Accordance with Contract

13.1  Unless it is legally or physically impossible, the Contractor shall execute and complete the Works and remedy any defects therein in strict accordance with the Contract to the satisfaction of the Engineer. The Contractor shall comply with and adhere strictly to the Engineer’s instructions on any matter, whether mentioned in the Contract or not, touching or concerning the Works. The Contractor shall take instructions only from the Engineer (or his delegate).

         Programme to be Submitted

14.1  The Contractor shall, within 20 days after the Date of the Letter of Acceptance, submit to the Engineer for his consent a programme, in such form and detail as the Engineer shall reasonably prescribe, for the execution of the Works. The Contractor shall, when-ever required by the Engineer, also provide in writing for his information a general description of the arrangements and methods which the Contractor proposes to adopt for the execution of the Works.

         Revised Programme

14.2  If at any time it should appear to the Engineer that the actual progress of the Works does not conform to the programme to which consent have been given under Sub-Clause 14.1, the Contractor shall produce, at the request of the Engineer, a revised programme showing the modifications to such programme necessary to ensure completion of the Work within the Time for Completion.

         Cash Flow Estimate to be Submitted

14.3  The Contractor shall, within 20 days after the date of the Letter of Acceptance, provide to the Engineer for his information a detailed cash flow estimate, in quarter periods, of all payments to which the Contractor will be entitled under the Contract and the Contractor shall subsequently supply serviced cash flow estimates at quarterly intervals, if required to do so by the Engineer.

         Contractor not Relieved of Duties or Responsibilities

14.4  The submission to and consent by the Engineer of such programmes or the provision of such general descriptions or cash flow estimates shall not relieve the Contractor of any of his duties or responsibilities under the Contract.

         Contractor’s Superintendence

15.1  The Contractor shall provide all necessary superintendence during the execution of the Works and as long thereafter as the Engineer may consider necessary for the proper fulfilling of the Contractor’s obligations under the Contract. The Contractor, or a competent and authorised representative approved of by the Engineer, which approval may at any time be withdrawn, shall give his whole time to the superintendence of the Works. Such authorised representative shall receive, on behalf of the Contractor, instructions from the Engineer.

         If approval of the representative is withdrawn by the Engineer, the Contractor shall as soon as is practicable, having regard to the requirement of replacing him as hereinafter mentioned, after receiving notice of such withdrawal, remove the representative from the Works and shall not thereafter employ him again on the Works in any capacity and shall replace him by another representative approved by the Engineer.

         Language Ability of Contractor’s Representative

15.2  If the Contractor’s authorized representative is not, in the opinion of the Engineer, fluent in the English language, the Contractor shall have available on site at all times a competent interpreter to ensure the proper transmission of instructions and information.

         Contractor’s Employees

16.1  The Contractor shall provide on the Site in connection with the execution and completion of the Works and remedying of any defects therein:

         (a) only such technical assistants as are skilled and experienced in their respective callings and such foremen and leading hands as are competent to give proper superintendence of the Works, and

         (b) such skilled, semi-skilled and unskilled labour as is necessary for the proper and timely fulfilling of the Contractor’s obligations under the Contract.

         Engineer at Liberty to Object

16.2  The Engineer shall be at liberty to object to and require the Contractor to remove forthwith from the Works any person provided by the Contractor who, in the opinion of the Engineer, misconducts himself, or is incompetent or negligent in the proper performance of his duties, or whose presence on Site is otherwise considered by the Engineer to be undesirable, and such person shall not be again allowed upon the Works without the consent of the Engineer. Any person so removed from the Works shall be replaced as soon as possible.

         Language Ability of Superintending Staff

16.3  A reasonable proportion of the Contractor’s superintending staff shall have a working knowledge of English and Vietnamese language or the Contractor shall have available on site at all times a sufficient number of competent interpreter to ensure the proper transmission of instructions and information.

 

         Setting-Out

 

17.1  The Contractor shall be responsible for:

         (a) the accurate setting-out of the Works in relation to original points, line and levels of reference given by the Engineer in writing,

         (b) the correctness, subject as above mentioned, of the position, levels, dimensions and alignment of all parts of the Works, and

         (c) the provision of all necessary instruments, appliances and labour in connection with the foregoing responsibilities.

         If, at any time during the execution of the Works, any error appears in the position, levels, dimensions or alignment of any part of the Works, the Contractor, on being required to do so by the Engineer, shall, at his own cost, rectify such error to the satisfaction of the Engineer.

         The checking of any setting-out or of any line or level by the Engineer shall not in any way relieve the Contractor of his responsibility for the accuracy thereof and the Contractor shall carefully protect and preserve all bench-marks, sight-rails, pegs and other things used in setting-out the Works.

         Boreholes and Exploratory Excavation

18.1  If, at any time during the execution of the Works, the Engineer requires the Contractor to make boreholes or to carry out exploratory excavation, such requirement shall be subject of an instruction in accordance with Clause 51, unless an item or a Provisional Sum in respect of such works is included in the Bill of Quantities.

         Safety, Security and Protection of the Environment

19.1  The Contractor shall, thought the execution and completion of the Works and remedying of any defects therein:

         (a) have full regard for the safety of all persons entitled to be upon the Site and keep the Site (so far as the same is under his control) and the Works (so far as the same are not completed or occupied by the Employer) in an orderly state appropriate to the avoidance of danger to such persons.

         (b) provide and maintain at his own cost all lights, guards, fencing, warning signs and watching, when and where necessary or required by the Engineer or by any duly constituted authority, for the protection of the Works or for the Safety and convenience of the public or others, and

         (c) take all reasonable steps to protect the environment on and off the Site and to avoid damage or nuisance to persons or to property of the public or others resulting from pollution, noise or other causes arising as a consequence of his methods of operation

         Employer’s Responsibilities

19.2  If under Clause 31 the Employer shall carry out work on the Site with his own workmen he shall, in respect of such work:

         (a) have full regard to the safety of all persons entitled to be upon the Site, and

         (b) keep the Site in an orderly state appropriate to the avoidance of danger to such persons.

         If under Clause 31 the Employer shall employ other contractors on the Site he shall require them to have the same regard for safety and avoidance of danger.

         Care of Work

20.1  The Contractor shall take full responsibility for the care of the Works and materials and Plant for incorporation therein from the Commencement Date until the date of issue of the Taking-Over Certificate for the whole of the Works, when the responsibility for the said care shall pass to the Employer. Provided that:

         (a) if the Engineer issues a Taking-Over Certificate for any Section or part of the Permanent Works, the Contractor shall cease to be liable for the care of that section or part from the date of issue of the Taking-Over Certificate, when the responsibility for the care of that Section or part shall pass to the Employer, and

         (b) The Contractor shall take full responsibility for the care of any outstanding Works and materials and Plant for incorporation therein which he undertakes to finish during the Defects Liability Period until such outstanding Works have been completed pursuant to Clause 49.

         Responsibility to Rectify Loss or Damage

20.2  If any loss or damage happens to the Works, or any part of thereof, or materials or Plant of incorporation therein, during the period for which the Contractor is responsible for the care thereof, from any cause whatsoever, other than the risks defined in Sub-Clause 20.4, the Contractor shall, at his own cost, rectify such loss or damage so that the Permanent Works conform in every respect with the provisions of the Contract to the satisfaction of the Engineer. The Contractor shall also be liable for any loss or damage to the Works occasioned by him in the course of any operations carried out by him for the purpose of complying with his obligations under Clause 49 and 50.

         Loss or Damage Due to Employer’s Risks

20.3  Void

         Employer’s Risks

20.4  Void

         Insurance of Works and Contractor’s Equipment

21.1  The Contractor shall, without limiting his or the Employer’s obligations and responsibilities under Clause 20, insure:

         (a) the Works, together with materials and Plant for incorporation therein, to the full replacement cost (the term “cost” in this context shall include profit)

         (b) the Contractor’s Equipment and other things brought onto the Site by the Contractor, for a sum sufficient to provide for their replacement at the Site.

         Scope of Cover

21.2  The issuance in paragraphs (a) and (b) of Sub-Clause 21.1 shall be in the joint names of the Contractor and the Employer and shall cover:

         (a) the Employer and the Contractor against all loss or damage from whatsoever cause arising, other than as provided in Sub-Clause 21.4, from the start of work of the Site until the date of issue the relevant Taking -Over Certificate in respect of the Works or any Section or part thereof as the case may be, and

         (b) the Contractor for his liability:

               (i) during the Defects Liability Period for loss or damage arising from a cause occurring prior to the commencement of the Defects Liability Period, and

               (ii) for loss or damage occasioned by the Contractor in the course of any operations carried out by him for the purpose of complying with his obligations under Clauses 49 and 50.

         Responsibility for Amounts not Recovered

21.3  Any amounts not insured or not recovered from the insurers shall be borne by the Employer or the Contractor in accordance with their responsibilities under Clause 20.

         Exclusions

21.4  There shall be no obligation for the insurances in Sub-Clause 21.1 to include loss or damage caused by:

         (a) war, hostilities (whether war be declared or not), invasion, act of foreign enemies,

         (b) rebellion, revolution, insurrection, or military or usurped power, or civil war,

         (c) ionising radiations, or contamination by radio-activity from any nuclear fuel, or from any nuclear waste from the combustion of nuclear fuel, radio-active toxic explosive or other hazardous properties or any explosive nuclear assembly or nuclear component thereof, or

         (d) pressure waves caused by aircraft or other aerial devices travelling at sonic or supersonic speeds.

         Damage to Persons and Property

22.1  The Contractor shall, except if and so far as the Contract provides otherwise, indemnify the Employer against all losses and claims in respect of:

         (a) death of or injury to any person, or

         (b) loss of damage to any property (other than the Works),

         which may arise out of or in consequence of the execution and completion of the Works and the remedying of any defects therein, and against all claims, proceedings, damages, costs, charges and expenses whatsoever in respect thereof or in relation thereto, subject to the exceptions defined in Sub-Clause 22.2.

         Exceptions

22.2  The “exceptions “ referred to in the Sub-Clause 22.1 are:

         (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) damage to property which is the unavoidable result of the execution and completion of the Works, or the remedying of any defects therein, in accordance with the Contract, and

         (d) death of or injury to persons or loss of or damage to property resulting from any act or neglect of the Employer, his agents, servants or other contractors, not being employed by the Contractor, or in respect of any claims, proceedings, damages, cost, charges and expenses in respect thereof or in relation thereto or, where the injury or damage was contributed to by the Contractor, his servants or agents, such part of the said injury or damage as may be just and equitable having regard to the extent of the responsibility of the Employer, his servants or agents or other contractors for the injury or damage.

         Indemnity by Employer

22.3  The Employer shall indemnify the Contractor against all claims, proceedings, damages, costs, charges and expenses in respect of the matters referred to in the exceptions defined in Sub-Clause 22.2.

         Third Party Insurance (including Employer’s Property)

23.1  The Contractor shall, without limiting his or Employer’s obligations and responsibilities under Clause 22, insure, in the joint names of the Contractor and the Employer, against liabilities for death of or injuries to any person (other than as provided in Clause 24) or loss of or damage to any property (other than the Works) arising out of the performance of the Contract, other than the exceptions defined in paragraphs (a), (b), and (c) of Sub-Clause 22.2.

         Minimum Amount of Insurance

23.2  Such insurance shall be for at least the amount stated in the Appendix to Tender.

         Cross Liabilities

23.3  The insurance policy shall include a cross liability clause such that the insurance shall apply to the Contractor and to the Employer as separate insureds.

         Accident or Injury to Workmen

24.1  The Employer shall not be liable for or in respect of any damages or compensation payable to any workman or other person in the employment of the Contractor or any Subcontractor, other than death or injury resulting from any act or default of the Employer, his agents or servants. The Contractor shall indemnify and keep indemnified the Employer against all such damages and compensation, other than those for which the Employer is liable as aforesaid, and against all claims, proceedings, damages, costs, charges, and expenses whatsoever in respect thereof or in relation thereto.

         Insurance Against Accident to Workmen

24.2  The Contractor shall insure against such liability and shall continue such insurance during the whole of the time that any persons are employed by him on the Works. Provided that, in respect of any persons employed by any Subcontractor, the Contractor’s obligations to insure as aforesaid under this Sub-Clause shall be satisfied if the Subcontractor shall have insure against the liability in respect of such persons in such manner that the Employer is indemnified under the policy, but the Contractor shall require such Subcontractor to produce to the Employer, when required, such policy of insurance and the receipt for the payment of the current premium.

         Evidence and Terms of Insurances

25.1  The Contractor shall provide evidence to the Employer prior to the start of work at the Site that the insurances required under the Contract have been effected and shall, within 84 days of the Commencement Date, provide the insurance policies to the Employer, the Contractor shall notify the Engineer of so doing. Such insurance policies shall be consistent with the general terms agreed prior to the issue of the Letter of Acceptance. The Contractor shall effect all insurances for which he is responsible with insurers and in terms approved by the Employer.

         Adequacy of Insurances

25.2  The Contractor shall notify the insurers of changes in the nature, extent or programme for the execution of the Works and ensure the adequacy of the insurances at all times in accordance with the terms of the Contract and shall, when required, produce to the Employer the insurance policies in force and the receipts for payment of the current premiums.

         Remedy on Contractor’s Failure to Insure

25.3  If the Contractor fails to effect and keep in force any of the insurances required under the Contract, or fails to provide the policies to the Employer within the period required by Sub-Clause 25.1, then and in any such case the Employer may effect and keep in force any such insurances and pay any premium as may be necessary for that purpose and from time to time deduct the amount so paid from any monies due or to become due to the Contractor, or recover the same as a debt due from the Contractor.

         Compliance with Policy Conditions

25.4  In the event that the Contractor or the Employer fails to comply with conditions imposed by the insurance policies effected pursuant to the Contract, each shall indemnify the other against all losses and claims arising from such failure.

         Compliance with Statutes, Regulations

26.1  The Contractor shall conform in all respects, including by the giving of all notices and the paying of all fees, with the provisions of:

         (a) any National or State Statute, Ordinance, or other Law, or any regulation, or bye-law of any local or other duly constituted authority in relation to the execution and completion of the Works and the remedying of any defects therein, and

         (b) the rules and regulations of all public bodies and companies whose property or rights are affected or may be affected in any way by the Works,

         and the Contractor shall keep the Employer indemnified against all penalties and liability of every kind for the breach of any such provisions. Provided always that the Employer shall be responsible for obtaining any planning, zoning or other similar permission required for the Works to proceed and shall indemnify the Contractor in accordance with Sub-Clause 22.3.                  

         Fossils

27.1  Void

         Patent Rights

28.1  The Contractor shall save harmless and indemnify the Employer from and against all claims and proceeding for or on account of infringement of any patent rights, design trademark or name or other protected rights in respect of any Contractor’s Equipment, materials or Plant used for or in connection with or for incorporation in the Works and from and against all damages, costs, charges and expenses whatsoever in respect thereof or in relation thereto, except where such infringement results from compliance with the design or Specification provided by the Engineer

         Royalties

28.2  Except where otherwise stated, the Contractor shall pay all tonnage and other royalties, rent and other payments or compensation, if any, for getting stone, sand, gravel, clay or other materials required for the Works.

         Interference with Traffic and Adjoining Properties

29.1  All operations necessary for the execution and completion of the Works and the remedying of any defects therein shall, so far as compliance with the requirements of the Contract permits, be carried on so as not to interfere unnecessarily or improperly with:

         (a) the convenience of the public, or

         (b) the access to, use and occupation of public or private roads and footpaths to or of properties whether in the possession of the Employer or any other person.

         The Contractor shall same harmless and indemnify the Employer in respect of all claims, proceedings, damages, costs, charges and expenses whatsoever arising out of, or in relation to, any such matters in so far as the Contractor is responsible therefore.

         AVoidance of Damage to Roads

30.1  The Contractor shall use every reasonable means to prevent any of the roads 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 Subcontractors and, in particular, shall select routes, choose and use vehicles and restrict and distribute loads so that any such extraordinary traffic as will inevitably arise from the moving of materials, Plant, Contractor’s Equipment or Temporary Works 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 roads and bridges.

         Transport of Contractor’s Equipment or Temporary Works

30.2  Save insofar as the Contract otherwise provides, the Contractor shall be responsible for and shall pay the cost of strengthening any bridges or altering or improving any road communicating with or on the routes to the Site to facilitate the movement of the Contractor’s Equipment or Temporary Works and the Contractor shall indemnify and keep indemnified the Employer against all claims for damage to any such road or bridge caused by such movement, including such claims as may be may directly against the Employer, and shall negotiate and pay all claims arising solely out of such damage.

         Transport of Materials or Plant

30.3  If, notwithstanding Sub-Clause 30.1 any damage occurs to any bridge or road communicating with or on the routes to the Site arising from the transport of materials or Plant, the Contractor shall notify the Engineer with a copy to the Employer, as soon as he becomes aware of such damage or as soon as he receives any claim from the authority entitled to make such claim. Where under any law or regulation the haulier of such materials or Plant is required to indemnify the road authority against damage the Employer shall not be liable for any costs, charges or expenses in respect thereof or in relation thereto. In other cases the Employer shall negotiate the settlement of and pay all sums due in respect of such claim and shall indemnify the Contractor in respect thereof and in respect of all claims, proceedings, damages, costs, charges and expenses in relation thereto. Provided that if and so far as any such claim or part thereof is, in the opinion of the Engineer, due to any failure on the part of the Contractor to observe and perform his obligations under Sub-Clause 30.1, then the amount, determined by the Engineer after due consultation with the Employer and the Contractor, to be due to such failure shall be recoverable from the Contractor by the Employer and may be deducted by the Employer from any monies due or to become due to the Contractor and the Engineer shall notify the Contractor accordingly, with a copy to the Employer. Provided also that the Employer shall notify the Contractor whenever a settlement is to be negotiated and, where any amount may be due from the Contractor, the Employer shall consult with the Contractor before such settlement is agreed.

         Waterborne Traffic

30.4  Where the nature of the Works is such as to require the use by the Contractor of waterborne transport the foregoing provision of this Clause shall be construed as though “road” include a lock, dock, sea wall or other structure related to a waterway and “vehicle” included craft, and shall have effect accordingly.

         Opportunities for Other Contractor

31.1  The Contractor shall, in accordance with the requirements of the Engineer, afford all reasonable opportunities for carrying out their work to:

         (a) any other contractors employed by the Employer and their workmen,

         (b) the workmen of the Employer, and

         (c) the workmen of any duly constituted authorities who may be employed in the execution on or near the Site of any work not included in the Contract or of any contract which the Employer may enter into in connection with or ancillary to the Works.

         Facilities for Other Contractors

31.2  If, however, pursuant to Sub-Clause 31.1 the Contractor shall, on the written request of the Engineer:  

         (a) make available to any such other contractor, or to the Employer or any such authority, any roads or ways for the maintenance of which the Contractor is responsible,

         (b) permit the use, by any such, of Temporary Works or Contractor’s Equipment on the Site, or

         (c) provide any other service of whatsoever nature for any such,

         the Engineer shall determine an addition to the Contract Price in accordance with Clause 52 and shall notify the Contractor accordingly, with a copy to the Employer.

         Contractor to Keep Site Clear

32.1  During the execution of the Works the Contractor shall keep the Site reasonably free from all unnecessary obstruction and shall store or dispose of any Contractor’s Equipment and surplus materials and clear away and remove from the Site any wreckage, rubbish or Temporary Works no longer required.

         Clearance of Site on Completion

33.1  Upon the issue of any Taking-Over Certificate the Contractor shall clear away and remove from that part of the Site to which such Taking-Over Certificate relates all Contractor’s Equipment, surplus material, rubbish and Temporary Works of every kind, and leave such part of the Site and Works clean and in a workmanlike condition to the satisfaction of the Engineer. Provided that the Contractor shall be entitled to retain on the Site, until the end of the Defects Liability Period, such materials, Contractor’s Equipment and Temporary Works as are required by him for the purpose of fulfilling his obligations during the Defects Liability Period.

         LABOUR

         Engagement of Staff and Labour

34.1  Void.

         Compliance with Labour Law

34.2  Void.

         Returns of Labour and Contractor’s Equipment

35.1  Void.

         MATERIALS, PLANT AND WORKMANSHIP

         Quality of Materials, Plant and Workmanship

36.1  All materials, Plant and workmanship shall be:

         (a) of the respective kinds described in the Contract and in accordance with the Engineer’s instructions, and

         (b) subjected from time to time to such tests as the Engineer may required at the place of manufacture, fabrication or preparation, or on the Site or at such other place or places as may be specified in the Contract, or at all or any such places.

         The Contractor shall provide such assistance, labour, electricity, fuels, stores, apparatus and instruments as are normally required for examining, measuring and testing any materials or Plant and shall supply samples of materials, before incorporation in the Works, for testing as may be selected and required by the Engineer.

         Cost of Samples

36.2  All samples shall be supplied by the Contractor at his own cost if the supply thereof is clearly intended by or provided for in the Contract.

         Cost of Tests

36.3  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) in sufficient detail to enable the Contractor to price or allow for the same in his Tender.

         Cost of Tests not Provided for

36.4  Void.

         Engineer’s Determination where Tests not Provide for

36.5  Void.

         Inspection of Operations

37.1  The Engineer, and any person authorised by him, shall at all reasonable times have access to the Site and to all workshops and place where the materials or Plant are being manufactured, fabricated or prepared for the Works and the Contractor shall afford every facility for and every assistance in obtaining the right to such access.

         Inspection and Testing

37.2  The Engineer shall be entitled, during manufacture, fabrication or preparation to inspect and test the materials and Plant to be supplied under the Contract. If materials or Plant are being manufactured, fabricated or prepared in workshops or places other than those of the Contractor, the Contractor shall obtain permission for the Engineer to carry out such inspection and testing in those workshops or places. Such inspection or testing shall not release the Contractor from any obligation under the Contract.

         Dates for Inspection and Testing

37.3  The Contractor shall agree with the Engineer on the time and place for the inspection or testing of any materials or Plant as provided in the Contract. The Engineer shall give the Contractor not less than 24 hours notice of his intention to carry out the inspection or to attend the tests. If the Engineer, or his duly authorised representative, does not attend on the date agreed, the Contractor may, unless otherwise instructed by the Engineer, proceed with the tests, which shall be deemed to have been made in the presence of the Engineer. The Contractor shall forthwith forward to the Engineer duly certified copies of the test readings. If the Engineer has not attended the tests, he shall accept the said reading as accurate.

         Rejection

37.4  If, at the time and place agreed accordance with Sub-Clause 37.3, the materials or Plant are not ready for inspection or testing or if, as a result of the inspection or testing referred to in this Clause, the Engineer determines that the materials or Plant are defective or otherwise not in accordance with the Contract, he may reject the materials or Plant and shall notify the Contractor thereof immediately. The notice shall state the Engineer’s objections with reasons. The Contractor shall then promptly make good the defect or ensure that rejected materials or Plant comply with the Contract. If the Engineer so requests, the test of rejected materials or Plant shall be made or repeated under the same terms and conditions. All costs incurred by the Employer by the repetition of the tests shall, after due consultation with the Employer and the Contractor, be determine by the Engineer and shall be recoverable from the Contractor by the Employer and may be deducted from any monies due or to become due to the Contractor and the Engineer shall notify the Contractor accordingly, with a copy to the Employer.

         Independent Inspection

37.5  The Engineer may delegate inspection and testing of materials or Plant to an independent inspector. Any such delegation shall be effected in accordance with Sub-Clause 2.4 and for this purpose such independent inspector shall be considered as an assistant of the Engineer. Notice of such appointment (not being less than 14 days) shall be given by the Engineer to the Contractor.

         Examination of Work before Covering up

38.1  No part of the Works shall be covered up or put out of the view without the approval of the Engineer and the Contractor shall afford full opportunity for the Engineer to examine and measure any such part of the Works which is about to be covered up or put out of view and to examine foundations before any part of the Works is placed thereon. The Contractor shall give notice to the Engineer whenever any such part of the Works or foundations is or are ready or about to be ready for examination and the Engineer shall, without unreasonable delay, unless he considers it unnecessary and advises the Contractor accordingly, attend for the purpose of examining and measuring such part of the Works or of examining such foundations.

         Uncovering and Making Openings

38.2  The Contractor shall uncover any part of the Works or make openings in or through the same as the Engineer may from time to time instruct and shall reinstate and make good such part. If any such part has been covered up or put out of view after compliance with the requirement of Sub-Clause 38.1 and is found to be executed in accordance with the Contract, the Engineer shall, after due consultation with the Employer and the Contractor, determine the amount of the Contractor’s costs in respect of such of uncovering, making openings in or though, reinstating and making good the same, which shall be added to the Contract Price, and shall notify the Contractor accordingly, with a copy to the Employer. In any other case all cost shall be borne by the Contractor.

         Removal of Improper Work, Materials or Plant

39.1  The Engineer shall have authority to issue instructions from time to time, for:

         (a) the removal from the Site, within such time or times as may be specified in the instruction, of any materials or Plant which, in opinion of the Engineer, are not in accordance with the Contract,

         (b) the substitution on of proper and suitable materials or Plant, and

         (c) the removal and proper re-execution, notwithstanding any previous test thereof or interim payment therefor, of any work which, in respect of

               (i) materials, Plant or workmanship, or

               (ii) design by the Contractor or for which he is responsible,

         is not, in the opinion of the Engineer, in accordance with the Contract.

         Default of Contractor in Compliance

39.2  In case of default on the part of the Contractor in carrying out such instruction within the time specified therein or, if none, within a reasonable time, the Employer shall be entitled to employ and pay other person to carry out the same and all cost consequent thereon or incidental thereto shall, after due consultation with the Employer and the Contractor, be determined by the Engineer and shall be recoverable from the Contractor by the Employer, and may be deducted by the Employer from any monies due or to become due to the Contractor and the Engineer shall notify the Contractor accordingly, with a copy to the Employer.

         SUSPENSION

         Suspension of Work

40.1  The Contractor shall, on the instructions of the Engineer, suspend the progress of the Works or any part thereof for such time and in such manner as the Engineer may consider necessary and shall, during such suspension, properly protect and secure the Works or such part thereof so far as is necessary in the opinion of the Engineer.

         Engineer’s Determination following Suspension

40.2  Void.

         Suspension lasting more than 84 Days

40.3  Void.

         COMMENCEMENT AND DELAYS

         Commencement of Works

41.1  The Contractor shall commence the Works as soon as is reasonably possible after the receipt by him of a notice to this effect from the Engineer, which notice shall be issued within the time stated in Appendix to Tender after the date of the Letter of Acceptance. Thereafter, the Contractor shall proceed with the Works with due expedition and without delay.

         Possession of Site and Access Thereto

42.1  Save insofar as the Contract may prescribe:

         (a) the extent of portions of the Site of which the Contractor is to be given possession from time to time,

         (b) the order in which such portions shall be made available to the Contractor,

         and, subject to any requirement in the Contract as to the order in which the Works shall be executed, the Employer will, with the Engineer’s notice to commence the Works, give to the Contractor possession of,

         (c) so much of the Site, and

         (d) such access as, in accordance with the Contract, is to be provided by the Employer as may be required to enable the Contractor to commence and proceed with the execution of the Works in accordance with the programme referred to in Clause 14, if any, and otherwise in accordance with such reasonable proposals as the Contractor shall, by notice to the Engineer with a copy to the Employer, make. The Employer will, from time to time as the Works proceed, give to the Contractor possession of such further portions of the Site as may be required to enable the Contractor to proceed with the execution of the Works with due dispatch in accordance with such programme or proposals, as the case may be.

         Failure to Give Possession

42.2  If the Contractor suffers delay and/or incurs costs from failure on the part of the Employer to give possession in accordance with the terms of Sub-Clause 42.1, the Engineer shall, after due consultation with the Employer and the Contractor, determine:

         (a) any extension of time to which the Contractor is entitled under Clause 44, and

         (b) the amount of such costs, which shall be added to the Contract Price

         and shall notify the Contractor accordingly, with a copy to the Employer.

         Rights of Way and Facilities

42.3  The Contractor shall bear all costs and charges for special or temporary rights of way required by him in connection with access to the Site. The Contractor shall also provide at his own cost any additional facilities outside the Site required by him for the purposes of the Works.

         Time for Completion

43.1  The whole of the Works and, if use, any Section required to be completed within a particular time as stated in the Appendix to Tender, shall be completed, in accordance with the provisions of Clause 48, within the time stated in the Appendix to Tender for the whole of the Works or the Section (as the case may be), calculated from the Commencement Date, or such extended time as may be allowed under clause 44.

         Extension of Time for Completion

44.1  Void. 

         Contractor to Provide Notification and Detailed Particulars

44.2  Provided that the Engineer is not bound to make any determination unless the Contractor has

         (a) within 28 days after such event has first arisen notified the Engineer with a copy to the Employer, and

         (b) within 28 days, or such other reasonable time as may be agreed by the Engineer, after such notification submitted to the Engineer detailed particulars of any extension of time to which he may consider himself entitled in order that such submission may be investigated at the time.

         Interim Determination of Extension

44.3  Void.

         Restriction on Working Hours

45.1  Void.

         Rate of Progress

46.1  If for any reason, which does not entitle the Contractor to an extension of time, the rate of progress of the Works or any Section is at any time, in the opinion of the Engineer, too slow to comply with the Time for Completion, the Engineer shall so notify the Contractor who shall thereupon take such steps as are necessary, subject to the consent of the Engineer, to expedite progress so as to comply with the Time for Completion. The Contractor shall not be entitled to any additional payment for taking such steps.

         Liquidated Damage for Delay

47.1  If the Contractor fails to comply with the Time for Completion in accordance with Clause 48, for the whole of the Works or, if use, any section within the relevant time prescribed by the Clause 43, then the Contractor shall pay to the Employer the relevant sum stated in the Appendix to Tender as liquidated damages for such default and not as a penalty (which sum shall be the only monies due from the Contractor for such default) for every day or part of a day which shall elapse between the relevant Time for Completion and the date stated in a Taking-Over Certificate of the whole of Works or the relevant Section, subject to the use limit stated in the Appendix to Tender. The Employer may, without prejudice to any other method of recovery, deduct the amount of such damages from any monies due or to become due to the Contractor. The payment or deduction of such damages shall not relieve the Contractor from his obligation to complete the Works, or from any other of his obligations and liabilities under the Contract.

         Reduction of Liquidated Damages

47.2  Void.

         Taking-Over Certificate

48.1  When the whole of the Works have been substantially completed and have satisfactorily passed any Tests on Completion prescribed by the Contract, the Contractor may give a notice to that effect to the Engineer, with a copy to the Employer, accompanied by a written undertaking to finish with due expedition any out standing work during the Defects Liability Period. Such notice and undertaking shall be deemed to be a request by the Contractor for the Engineer to issue a Taking-Over Certificate in respect of the Works. 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 Taking-Over Certificate, stating the date on which, in his opinion, the Works were substantially completed in accordance with the Contract, or give instruction in writing to the Contractor specifying all the Works which, in the Engineer’s opinion, is required to be done by the Contractor before the issue of such Certificate. The Engineer shall also notify the Contractor of any defects in the Works affecting substantial completion that may appear after such instructions and before completion of the Works specified therein. The Contractor shall be entitled to receive such Taking-Over Certificate within 21 days of completion, to the satisfaction of the Engineer, of the Works so specified and remedying any defects so notified.

         Taking-Over of Section or Parts

48.2  Similarly, in accordance with the procedure set out in Sub-Clause 48.1, the Contractor may request and the Engineer shall issue a Taking-Over Certificate in respect of:

         (a) any Section in respect of which a separate Time for Completion is provided in the Appendix to Tender,

         (b) any substantial part of the Permanent Works which has been both completed to the satisfaction of the Engineer and, otherwise than as provided for in the Contract, occupied or used by the Employer, or

         (c) any part of the Permanent Works which the Employer has elected to occupy or use prior to completion (where such prior occupation or use is not provided for in the Contract or has no been agreed by the Contractor as a temporary measure).

         Substantial Completion of Parts

48.3  If any part of the Permanent Works has been substantially completed and has satisfactorily passed any Test on Completion prescribed by the Contract, the Engineer may issue a Taking-Over Certificate in respect of that part of the Permanent 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 with due expedition any outstanding work in that part of the Permanent Works during the Defects Liability Period.

         Surfaces Requiring Reinstatement

48.4  Provided that a Taking-Over Certificate given in respect of any Section or part of the Permanent Works before completion of the whole of the Works shall not be deemed to certify completion of any ground or surfaces requiring reinstatement, unless such Taking-Over Certificate shall expressly so state.

         DEFECTS LIABILITY

         Defects Liability Period

49.1  In these Conditions the expression “Defects Liability Period” shall mean the defects liability period named in the Appendix to Tender, calculated from the date of completion of the Works certified by the Engineer in accordance with Clause 48,

         and in the relation to the Defects Liability Period the expression “the Works” shall be construed accordingly.

         Completion of Outstanding Work and Remedying Defects

49.2  To the intent that the Works shall, at or at soon as practicable after the expiration of the Defects Liability Period, be delivered to the Employer in the condition required by the Contract, fair wear and tear excepted, to the satisfaction of the Engineer, the Contractor shall:

         (a) complete the work, if any, outstanding on the date stated in the Taking-Over Certificate as soon as practicable after such date, and

         (b) execute all such work of amendment, reconstruction, and remedying defects, shrinkages or other faults as the Engineer may during the Defects Liability Period or within 14 days after its expiration, as a result of an inspection made by or on behalf of the Engineer prior to its expiration, instruct the Contractor to execute.

         Cost of Remedying Defects

49.3  All work referred to in Sub-Clause 49.2 (b) shall be executed by the Contractor at his own cost if the necessity thereof is, in the opinion of the Engineer, due to:

         (a) the use of materials, Plant or workmanship not in accordance with the Contract,

         (b) where the Contractor is responsible for the design of part of the Permanent Works, any fault in such design, or

         (c) the neglect or failure on the part of the Contractor to comply with any obligation, expressed or implied, on the Contractor’s part under the Contract.              

         Contractor’s Failure to Carry Out Instructions

49.4  In case of default on the part of the Contractor in carrying out such instruction within a reasonable time, the Employer shall be entitled to employ and pay other persons to carry out the same and if such work is work which, in the opinion of the Engineer, the Contractor was liable to do at his own cost under the Contract, then all costs consequent thereon or incidental thereto shall, after due consultation with the Employer and the Contractor, be determined by the Engineer and shall be recoverable from the Contractor by the Employer, and may be deducted by the Employer from any monies due or to become due to the Contractor and the Engineer shall notify the Contractor accordingly, with a copy to the Employer.

         Contractor to Search

50.1  If any defect, shrinkage or other fault in the Works appears at any time prior to the end of the Defects Liability Period, the Engineer may instruct the Contractor, with a copy to the Employer, to search under the directions of the Engineer for the cause thereof. Unless such defect, shrinkage or other fault is one for which the Contractor is liable under the Contract, the Engineer shall, after due consultation with the Employer and the Contractor, determine the amount in respect of the costs of such search incurred by the Contractor, which shall be added to the Contract Price and shall notify the Contractor accordingly, with a copy to the Employer. If such defect, shrinkage or other fault is one for which the Contractor is liable, the cost of the work carried out in searching as aforesaid shall be borne by the Contractor and he shall in such case remedying such defect, shrinkage or other fault at his own cost in accordance with the provisions of Clause 49.

         ALTERATIONS, ADDITIONS AND OMISSIONS

         Variations

51.1  The Engineer shall make any variation of the form, quality or quantity of the Works or any part thereof that may, in his opinion, be necessary and for that purpose, or if for any other reason it shall, in his opinion, be appropriate, he shall have the authority to instruct the Contractor to do and the Contractor shall do any of the following:

         (a) increase or decrease the quantity of any work include in the Contract,

         (b) omit any such work (but not if the omitted work is to be carried out by the Employer or by another contractor),

         (c) change the character or quality or kind of any such work,

         (d) change the levels, lines, position and dimensions of any part of the Works

         (e) execute additional work of any kind necessary for the completion of the Works, or

         (f) change any specified sequence or timing of construction of any part of the Works.

         No such variation shall in any way vitiate or invalidate the Contract, but the effect, if any, of all such variations shall be valued in accordance with Clause 52. Provided that where the issue of an instruction to vary the Works is necessitated by some default of or breach of contract by the Contractor or for which he is responsible, any additional cost attributable to such default shall be borne by the Contractor.

         Instructions for Variations

51.2  The Contractor shall not make any such variation without an instruction of the Engineer. Provided that no instruction shall be required for increase or decrease in the quantity of any work where such increase or decrease is not the result of an instruction given under this Clause, but is the result of the quantities exceeding or being less than those stated in the Bill of Quantities.

         Valuation of Variations

52.1  All variation referred to in Clause 51 and any additions to the Contract Price which are required to be determined in accordance with the Clause 52 (for the purpose of this Clause referred to as “varied work”), shall be valued at the rates and prices set out in the Contract if, in the opinion of the Engineer, the same shall be use. If the Contract does not contain any rates or prices use to the varied work, the rates and prices in the Contract shall be used as the basis for valuation so far as may be reasonable, failing which, after due consultation by the Engineer with the Employer and the Contractor, suitable rates or prices shall be agreed upon between the Engineer and the Contractor. In the event of disagreement the Engineer shall fix such rates or prices as are, in his opinion, appropriate and shall notify the Contractor accordingly, with a copy to the Employer. Until such time as rates or prices are agreed or fixed, the Engineer shall determine provisional rates or prices to enable on-account payments to be included in certificates issued in accordance with Clause 60.

         Power of Engineer to Fix Rates

52.2  Provided that if the nature or amount of any varied work relative to the nature or amount of the whole of the Works or to any part thereof, is such that, in the opinion of the Engineer, the rate or price contained in the Contract for any item of the Works is, by reason of such varied work, rendered inappropriate or inuse, then, after due consultation by the Engineer with the Employer and the Contractor, a suitable rate or price shall be agreed upon between the Engineer and the Contractor. In the event of disagreement the Engineer shall fix such other rate or price as is, in his opinion, appropriate and shall notify the Contractor accordingly, with a copy to the Employer. Until such time as rates or prices agreed or fixed, the Engineer shall determine provisional rates or prices to enable on-account payments to be included in certificates issued in accordance with Clause 60.

         Provided also that no varied work instructed to be done by the Engineer pursuant to Clause 51 shall be valued under Sub-Clause 52.1 or under this Sub-Clause unless, within 14 days of the date of such instruction and, other than in the case of omitted work, before the commencement of the varied work, notice shall have been given either:

         (a) by the Contractor to the Engineer of his intention to claim extra payment or a varied rate or price, or

         (b) by the Engineer to the Contractor of his intention to vary a rate or price.

         Variations Exceeding 5 percent

52.3  If, on the issue of the Taking-Over Certificate for the whole of the Works, it is found that as a result of:

         (a) all varied work valued under Sub-Clauses 52.1 and 52.2, and

         (b) all adjustments upon measurement of the estimated quantities set out in the Bill of Quantities, excluding Provisional Sums, dayworks and adjustments of price made under Clause 70,

         but not from any other cause, there have been additions to or deductions from the Contract Price which taken together are in excess of 5 percent of the “Effective Contract Price “ (which for the purposes of this Sub-Clause shall mean the Contract Price, excluding Provisional Sums and allowance for dayworks, if any) then and in such event (subject to any action already taken under any other Sub-Clause of this Clause), after due consultation by the Engineer with the Employer and the Contractor, there shall be added to or deducted from the Contract Price such further sum as may be agreed between the Contractor and the Engineer or, failing agreement, determined by the Engineer having regard to the Contractor’s Site and general overhead costs of the Contract. The Engineer shall notify the Contractor of any determination made under this Sub-Clause, with a copy to the Employer. Such sum shall be based only on the amount by which such additions or deductions shall be in excess of 5 percent of the Effective Contract Price.

         Daywork

52.4  The Engineer may, if in his opinion it is necessary or desirable, issue an instruction that any varied work shall be executed on a daywork basis. The Contractor shall then be paid for such varied work under the terms set out in the daywork schedule included in the Contract and at the rates and prices affixed thereto by him in the Tender.

         The Contractor shall 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.

         In respect of such of the Works executed on a daywork basis, the Contractor shall, during the continuance of such work, deliver each day to the Engineer an exact list in duplicate of the names, occupation and time of all workmen employed on such work and a statement, also in duplicate, showing the description and quantity of all materials and Contractor’s Equipment used thereon or thereof other than Contractor’s Equipment which is included in the percentage addition in accordance with such daywork schedule. One copy of each list and statement will, if correct, or when agreed, be signed by the Engineer and returned to the Contractor.

         At the end of each month the Contractor shall deliver to the Engineer a priced statement of the labour, materials and Contractor’s Equipment, except as aforesaid, 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 considers that for any reason the sending of such lists or statements by the Contractor, in accordance with the foregoing provision, 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 the labour, materials and Contractor’s Equipment used on such work, or at such value therefor as shall, in his opinion, be fair and reasonable.

         PROCEDURE FOR CLAIMS

         Notice of Claims

53.1  Notwithstanding any other provision of the Contract, if the Contractor intends to claim any additional payment pursuant to any Clause of these Conditions or otherwise, he shall give notice of his intention to the Engineer, with a copy to the Employer, within 28 days after the event giving rise to the claim has first arisen.

         Contemporary Records

53.2  Upon the happening of the event referred to in Sub-Clause 53.1, the Contractor shall keep such contemporary records as may reasonably be necessary to support any claim he may subsequently wish to make. Without necessarily admitting the Employer’s liability, the Engineer shall, on a receipt of a notice under Sub-Clause 53.1, inspect such contemporary records and may instruct the Contractor to keep any further contemporary records as are reasonable and may be material to the claim of which notice has been given. The Contractor shall permit the Engineer to inspect all records kept pursuant to this Sub-Clause and shall supply him with copies thereof as and when the Engineer so instructs.

         Substantiation of Claims

53.3  Within 28 days, or such other reasonable time as may be agreed by the Engineer, of giving notice under Sub-Clause 53.1, the Contractor shall send to the Engineer an account giving detailed particulars of the amount claimed and the grounds upon which the claim is based. Where the event giving rise to the claim has a continuing effect, such account shall be considered to be an interim account and the Contractor shall, at such intervals as the Engineer may reasonable require, send further interim accounts giving the accumulated amount of the claim and any further grounds upon which it is based. In cases where interim accounts are sent to the Engineer, the Contractor shall send a final account within 28 days of the end of the effects resulting from the event. The Contractor shall, if required by the Engineer so to do, copy to the Employer all accounts sent to the Engineer pursuant to this Sub-Clause.

         Failure to Comply

53.4  If the Contractor fails to comply with any of the provisions of this Clause in respect of any claim which he seeks to make, his entitlement to payment in respect thereof shall not exceed such amount as the Engineer or any arbitrator or arbitrators appointed pursuant to Sub-Clause 67.3 assessing the claim considers to be verified by contemporary records (whether or not such records were brought to the Engineer’s notice as required under Sub-Clause 53.2 and 53.3).

         Payment of Claims

53.5  The Contractor shall be entitled to have included in any interim payment certified by the Engineer pursuant to Clause 60 such amount in respect of any claim as the Engineer, after due consultation with the Employer and the Contractor, may consider due to the Contractor provided that the Contractor has 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 such particulars may substantiate to the satisfaction of the Engineer. The Engineer shall notify the Contractor of any determination made under this Sub-Clause, with a copy to the Employer.

         CONTRACTOR’S EQUIPMENT, TEMPORARY WORKS AND MATERIALS

         Contractor’s Equipment, Temporary Works and Materials;

         Exclusive Use for the Works

54.1  All Contractor’s Equipment, Temporary Works and materials provided by the Contractor shall, when brought on to the Site, be deemed to be exclusively intended for the execution of the Works and the Contractor shall not remove the same of any part thereof, except for the purpose of moving it from one part of the Site to another, without the consent of the Engineer. Provided that consent shall not be required for vehicles engaged in transporting any staff, labour, Contractor’s Equipment, Temporary Works, Plant or materials to or from the Site.

         Employer not Liable for Damage

54.2  The Employer shall not at any time be liable, save as mentioned in Clauses 20 and 65, for the loss of or damage to any of the said Contractor’s Equipment, Temporary Works or materials.

         Customs Clearance

54.3  The Employer will use his best endeavours in assisting the Contractor, where required, in obtaining clearance through the Customs of Contractor’s Equipment, materials and other things required for the Works.

         Re-export of Contractor’s Equipment

54.4  In respect of any Contractor’s Equipment which the Contractor has imported for the purposes of the Works, the Employer will use his best endeavours to 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 pursuant to the terms of the Contract.

         Conditions of Hire of Contractor’s Equipment

54.5  With a view to securing, in the event of termination under Clause 63, the continued availability, for the purpose of the executing the Works, of any hired Contractor’s Equipment, the Contractor shall not bring on to the Site any hired Contractor’s Equipment unless there is an agreement for the hire thereof (which agreement shall be deemed not to include an agreement for hire purchase) 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 termination 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 executing and completing the Works and remedying any defects therein, under the term of the said Clause 63.

         Costs for the Purpose of Clause 63

54.6  In the event of the Employer entering into any agreement for the hire of Contractor’s Equipment pursuant to Sub-Clause 54.5, all sums properly paid by the Employer under the provisions of any such agreement and all costs incurred by him (including stamp duties) in entering into such agreement shall be deemed, for the purpose of Clause 63, to be part of the cost of executing and completing the Works and the remedying of any defects therein.

         Incorporation of Clause in Subcontracts

54.7  The Contractor shall, where entering into any subcontract for the execution of any part of the Works, incorporate in such subcontract (by reference or otherwise) the provisions of this Clause in relation to Contractor’s Equipment, Temporary Works or materials brought on to the Site by the Subcontractor.

         Approval of Materials not Implied

54.8  The operation of this Clause shall not be deemed to imply any approval by the Engineer of the materials or other matter referred to therein nor shall it prevent the rejection of any such materials at any time by the Engineer.

         MEASUREMENT

         Quantities

55.1  The quantities set out in the Bill of Quantities are the estimated quantities for the Works, and they are not to be taken as the actual and correct quantities of the Works to be executed by the Contractor in fulfilment of his obligations under the Contract.

         Works to be Measured

56.1  The Engineer shall, except as otherwise stated, ascertain and determine by measurement the value of the Works in accordance with the Contract and the Contractor shall be paid that value in accordance with Clause 60. The Engineer shall, when he requires any part of the Works to be measured, give reasonable notice to the Contractor’s authorised agent, who shall:

         (a) forthwith attend or send a qualified representative to assist the Engineer in making such measurement, and

         (b) supply all particulars required by the Engineer:

         Should the Contractor not attend, or neglect or omit to send such representative, then the measurement made by the Engineer or approved by him shall be taken to be the correct measurement of such part of the Works. For the purpose of measuring such Permanent Works as are to be measured by records and drawings, the Engineer shall prepare records and drawings as the work proceeds and the Contractor, as and when called upon to do so in writing, shall, within 14 days, attend to examine and agree such records and drawings with the Engineer and shall sign the same when so agreed. If the Contractor does not attend to examine and agree such records and drawings, they shall be taken to be correct. If, after examination of such records and drawings, the Contractor does not agree the same or does not sign the same as agreed, they shall nevertheless be taken to be correct, unless the Contractor, within 14 days of such examination, lodges with the Engineer notice of the respects in which such records and drawings are claimed by him to be incorrect. On receipt of such notice, the Engineer shall review the records and drawings and either confirm or vary them.

         Method of Measurement

57.1  The Works shall be measured net, notwithstanding any general or local custom, except where otherwise provided for the Contract.

         Breakdown of Lump Sum Items

57.2  For the purposes of statements submitted in accordance with Sub-Clause 60.1, the Contractor shall submit to the Engineer, within 28 days after the receipt of the Letter of Acceptance, a breakdown for each of the lump sum items contained in the Tender. Such breakdown shall be subject to the approval of the Engineer.

 

         PROVISIONAL SUMS

 

         Definition of “Provisional Sums”

58.1  “Provisional sum” means a sum included in the Contract and so designated in the Bill of Quantities for the execution of any part of the Works or for the supply of goods, materials, Plant or services, or for contingencies, which sum may be used, in whole or in part, or not at all, on the instructions of the Engineer. The Contractor shall be entitled to only such amounts in respect of the work, supply or contingencies to which such Provisional Sums relate as the Engineer shall notify the Contractor of any determination made under this Sub-Clause, with a copy to the Employer.

Use of Provisional Sums

58.2  In respect of every Provisional Sum the Engineer shall have authority to issue instructions for the execution of the work or for the supply of goods, materials, Plant or services by:

         (a) the Contractor, in which case the Contractor shall be entitled to an amount equal to the value thereof determined in accordance with Clause 52, and

         (b) a nominated Subcontractor, as hereinafter defined, in which case the sum to be paid to the Contractor therefor shall be determined and paid in accordance with Sub-Clause 59.4

         Production of Vouchers

58.3  The Contractor shall produce to the Engineer all quotations, invoices, vouchers and accounts or receipts in connection with expenditure in respect of Provisional Sums, except where work is valued in accordance with rates or prices set out in Tender.

         NOMINATED SUBCONTRACTORS

         Definition of “Nominated Subcontractors”

59.1  Void.

         Nominated Subcontractors; Objection to Nomination

59.2  Void.

         Design Requirements to be Expressly Stated

59.3  Void.

         Payments to Nominated Subcontractors

59.4  Void.

         Certification of Payments to Nominated Subcontractors

59.5  Void.

         CERTIFICATES AND PAYMENT

         Monthly Statements

60.1  The Contractor shall submit to the Engineer after the end of each month six copies, each signed by the Contractor’s representative approved by the Engineer in accordance with Sub-Clause 15.1, of a statement, in such form as the Engineer may from time to time prescribe, showing the amounts to which the Contractor considers himself to be entitled up to the end of the month in respect of:

         (a) the value of the Permanent Works executed,

         (b) any other items in the Bill of Quantities including those for Contractor’s Equipment, Temporary Works, dayworks and the like,

         (c) the percentage of the invoice value of listed materials, all as stated in the Appendix to Tender, and Plant delivered by the Contractor on the Site for incorporation in the Permanent Works but not incorporated in such Works,

         (d) adjustments under Clause 70, and

         (e) any other sum to which the Contractor may be entitled under the Contract or otherwise.

         Monthly Payment

60.2  The Engineer shall within 28 days of receiving such statement, deliver to the Employer an Interim Payment Certificate stating the amount of payment to the Contractor which the Engineer considers due and payable in respect of such statement, subject:

         (a) firstly, to the retention of the amount calculated by applying the Percentage of Retention stated in the Appendix to Tender, to the amount to which the Contractor is entitled under paragraphs (a), (b), (c) and (e) of Sub-Clause 60.1 until the amount so retained reaches the Limit of Retention Money stated in the Appendix to Tender, and

         (b) secondly, to the deduction, other than pursuant to Clause 47, of any sums which may have become due and payable by the Contractor to the Employer.

         Provided that the Engineer shall not be bound to certify any payment under this Sub-Clause if the net amount thereof, after all retentions and deductions, would be less than Minimum Amount of Interim Payment Certificates stated in the Appendix to Tender.

         Notwithstanding the terms of this Clause or any other Clause of the Contract no amount will be certified by the Engineer for payment until the performance security, if required under the Contract, has been provided by the Contractor and approved by the Employer.

         Payment of Retention Money

60.3  (a) Upon the issue of Taking-Over Certificate with respect to the whole of the Works, one third of the Retention Money shall be certified by the Engineer for payment to the Contractor.

         (b) Upon the expiration of the Defects Liability Period for the Works the remained two third of the Retention Money shall be certified by the Engineer for payment to the Contractor. Provided that if any such time there shall remain to be executed by the Contractor any work instructed, pursuant to Clause 49 and 50, in respect of the Works, the Engineer shall be entitled to withhold certification until completion of such work of so much of the balance of the Retention Money as shall, in the opinion of the Engineer, represent the cost of the work remaining to be executed.

         Correction of Certificates

60.4  The Engineer may by any Interim Payment Certificate make any correction or modification in any previous Interim Payment Certificate which shall have been issued by him and shall have authority, if any work is not being carried out to his satisfaction, to omit or reduce the value of such work in any Interim Payment Certificate.

         Statement at Completion

60.5  Not later than 84 days after the issue of the Taking-Over Certificate in respect of the whole of the Works, the Contractor shall submit to the Engineer six copies of a Statement at Completion with supporting documents showing in detail, in the form approved by the Engineer:

         (a) the final value of all work done in accordance with the Contract upon to the date stated in such Taking-Over Certificate,

         (b) any further sums which the Contractor considers to be due, and

         (c) an estimate of amounts shall be shown separately in such Statement at Completion. The Engineer shall certify payment in accordance with Sub-Clause 60.2.

         Final Statement

60.6  Not later than 56 days after the issue of the Defect Liability Certificate pursuant to  Sub-Clause 62.1, the Contractor shall submit to the Engineer for consideration six copies of a draft final statement with supporting documents showing in detail, in the form approved by the Engineer:

         (a) the value of all work done in accordance with the Contract, and

         (b) any further sums which the Contractor considers to be due to him under the Contract or otherwise.

         If the Engineer disagrees with or cannot verify any part of the draft final statement, the Contractor shall submit such further information as the Engineer may reasonably require and shall make such changes in the draft as may be agreed between them. the Contractor shall then prepare and submit to the Engineer the final statement as agreed (for the purposes of these Conditions referred to as the “Final Statement”).

         If, following discussions between the Engineer and the Contractor and any changes to the draft final statement which may be agreed between them, it becomes evident that a dispute exists, the Engineer shall deliver to the Employer an Interim Payment Certificate for those parts of the draft final statement, if any, which are not in dispute. The dispute may then be settled in accordance with Clause 67.

         Discharge

60.7  Upon submission of the Final Statement, the Contractor shall give to the Employer, with a copy to the Engineer, a written discharge confirming that the total of the Final Statement represents fill and final settlement of all monies due to the Contractor arising out of or in respect of the Contract. Provided that such discharge shall become effective only after payment due under the Final Payment Certificate issued pursuant to Sub-Clause 60.8 has been made and the performance security referred to in Sub-clause 10.1, if any, has been returned to the Contractor.

         Final Payment Certificate

60.8  Within 28 days after receipt of the Final Statement, and the written discharge, the Engineer shall issue to the Employer (with a copy to the Contractor) a Final Payment Certificate stating:

         (a) the amount which, in the opinion of the Engineer, is finally due under the Contract or otherwise, and

         (b) after giving credit to the Employer for all amounts previously paid by the Employer and for all sums to which the Employer is entitled other than under Clause 47, the balance, if any, due from the Employer to the Contractor or from the Contractor to the Employer as the case may be.

         Cessation of Employer’s Liability

60.9  The Employer shall not be liable to the Contractor for any matter or thing arising out of or in connection with the Contract or execution of the Works, unless the Contractor shall have included a claim in respect thereof in his Final Statement and (except in respect of matters or things arising after the issue of the Taking-Over Certificate in respect of the whole of the Works) in the Statement at Completion referred to in Sub-Clause 60.5.

         Time for Payment

60.10   The amount due to the Contractor under any Interim Payment Certificate issued by the Engineer pursuant to this Clause, or to any other term of the Contract, shall subject to Clause 47, be paid by the Employer to the Contractor within 28 days after such Interim Payment Certificate has been delivered to the Employer, or, in the case of the Final payment Certificate referred to in Sub-Clause 60.8, within 56 days after such Final payment Certificate has been delivered to the Employer.

 

         Approval only by Defects Liability Certificate

 

61.1  Only the Defects Liability Certificate, referred to in Clause 62, shall be deemed constitute approval of the Works.

         Defects Liability Certificate

62.1  The Contract shall not be considered as completed until a Defects Liability Certificate shall have been signed by the Engineer and delivered to the Employer with a copy to the Contractor, stating the date on which the Contractor shall have completed his obligations to execute and completed the Works and remedy any defects therein to the Engineer’s satisfaction. The Defects Liability Certificate shall be given by the Engineer within 28 days after the expiration of the Defects Liability Period, or, if different defects liability periods shall become use to different Sections or Parts of the Permanent Works, the Expiration of the latest such period, or as soon thereafter as any works instructed, pursuant to Clauses 49 and 50, have been completed to the satisfaction of the Engineer. Provided that the issue of the Defects Liability Certificate shall not be a condition precedent to payment to the Contractor of the second portion of the Retention Money in accordance with the conditions set out in Sub-Clause 60.3.

         Unfulfilled Obligations

62.2  Notwithstanding the issue of the Defects Liability Certificate the Contractor and the Employer shall remain liable for the fulfilment of any obligation incurred under the provisions of the Contract prior to the issue of the Defects Liability Certificate which remains unperformed at the time such Defects Liability Certificate is issued and, for the purposes of determining the nature and extent of any such obligation, the Contract shall be deemed to remain in force between the parties to the Contract.

         REMEDIES

         Default of Contractor

63.1  If the Contractor is deemed by law unable to pay his debts as they fall due, or enters into voluntary or involuntary bankruptcy, liquidation or dissolution (other than a voluntary liquidation for the purposes of amalgamation or reconstruction) or becomes insolvent, or makes an arrangement with, or assignment in favour of, his creditors, or agrees to carry out the Contract under a committee of inspection of, his creditors, or if a receiver, administrator, trustee or liquidator is appointed over any substantial part of his assets, or if, under any law or regulation relating to reorganization, arrangement or readjustment of debts, proceedings are commenced against the Contractor or resolutions passed in connection with dissolution or liquidation or if any steps are taken to enforce any security interest over a substantial part of the assets of the Contractor, or if any act is done or event occurs with respect to any Contractor or his assets which, under any use law has a substantially similar effect to any of the foregoing acts or events, or if the Contract has contravened Sub-Clause 3.1, or has an execution levied on his goods, or if the Engineer certifies to the Employer, with a copy to the Contractor, that, in his opinion, the Contractor:

         (a) has repudiated the Contract,

         (b) without reasonable excuse has failed

               (i) to commence the Works in accordance with Sub-Clause 41.1, or

               (ii) to proceed with the Works, or any Section thereof, within 28 days after receiving notice pursuant to Sub-Clause 46.1,

         (c) has failed to comply with a notice issued pursuant to Sub-Clause 37.4 or an instruction issued pursuant to Sub-Clause 39.1 within 28 days after having received it,

         (d) despite previous warning from the Engineer, in writing, is otherwise persistently or flagrantly neglecting to comply with any of his obligations under the Contract, or

         (e) has contravened Sub-Clause 4.1,

         then the Employer may, after giving 14 days’ notice to the Contractor, enter upon the Site and the Works and terminate the employment of the Contractor without thereby releasing the Contractor from any of his obligations or liabilities under the Contract, or affecting the rights and authorities conferred on the Employer or the Engineer by the Contract, and may himself complete the Works or may employ any other contractor to complete the Works. The Employer or such other contractor may use for such completion so such of the Contractor’s Equipment, Temporary Works and materials as he or they may think proper.

         Valuation at Date of Termination

63.2  The Engineer shall, as soon as may be practicable after any such entry and termination by the Employer, fix and determine ex parte, or by or after reference to the parties or after such investigation or enquiries as he may think fit to make or institute, and shall certify:

         (a) what amount (if any) had, at the time of such entry and termination, been reasonably earned by or would reasonably accrue to the Contractor in respect of work then actually done by him under the Contract, and

         (b) the value of any of the said unused or partially used materials, any Contractor’s Equipment and any Temporary Works.

         Payment after Termination

63.3  If the Employer terminates the Contractor’s employment under this Clause, he shall not be liable to pay to the Contractor any further amount (including damages) in respect of the Contract until the expiration of the Defects Liability Period and there after until the costs of execution, completion and remedying of any defects, damages for delay in completion (if any) 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 (if any) as the Engineer may certify would have been payable to him upon due completion by him after deducting the said amount. If such amount exceeds 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.

         Assignment of Benefit of Agreement

63.4  Unless prohibited by law, the Contractor shall, if so instructed by the Engineer within 14 days of such entry and termination referred to in Sub-Clause 63.1, assign to the Employer the benefit of any agreement for the supply of any goods or materials or services and/or for the execution of any work for the purposes of the Contract, which the Contractor may have entered into.

         Urgent Remedial Work

64.1  If, by reason of any accident, or failure, or other event occurring to, in, 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 is, in the opinion of the Engineer, urgently necessary for the safety of the Works and the Contractor is unable or unwilling at once to do such work, the Employer shall be entitled to employ and pay other persons to carry out such work 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 cost under the Contract, then all costs consequent thereon or incidental thereto shall, after due consultation with the Employer and the Contractor, be determined by the Engineer and shall be recoverable from the Contractor by the Employer, and may be deducted by the Employer from any monies due or to become due to the Contractor and the Engineer shall notify the Contractor accordingly, with a copy to the Employer. Provided that the Engineer shall, as soon after the occurrence of any such emergency as may be reasonably practicable, notify the Contract thereof.

         SPECIAL RISKS

         Liability for special Risks

65.1  Void.

         Special Risks

65.2  Void.

         Damage to Works due to Special Risks

65.3  Void.

         Projectile, Missile

65.4  Void.

         Increased Costs arising from Special Risks

65.5  Void.

         Outbreak of War

65.6  Void.

         Removal of Contractor’s Equipment on Termination

65.7  Void.

         Payment if Contract Terminated

65.8  Void.

         RELEASE FROM PERFORMANCE

         Payment in Event of Release from Performance

66.1  If any circumstance outside the control of both parties arised after the issue of the Letter of Acceptance which renders it impossible or unlawful for either or both parties to fulfil his or their contractual obligations, or under the law governing the Contract the parties are released from further performance, then the parties shall be discharged from the Contract, except as to their rights under this Clause and Clause 67 and without prejudice to the rights of either party in respect of any antecedent breach of the Contract, and the sum payable by the Employer to the Contractor in respect of the work executed shall be the sum as that which would have been payable under Clause 65 if the Contract had been terminated under the provisions of Clause 65.

         SETTLEMENT OF DISPUTES

         Engineer’s Decision

67.1  If a dispute of any kind whatsoever arises between the Employer and the Contractor in connection with, or arising out of, the Contract or the execution of the Works, whether during the execution of the Works or after their completion and whether before or after repudiation or other termination of the Contract, including any dispute as to any opinion, instruction, determination, certificate or valuation of the Engineer, the matter in dispute shall, in the first place, be referred in writing to the Engineer, with a copy to the other party. Such reference shall state that it is made pursuant to this Clause. No later than the eighty-fourth day after the day on which he received such reference the Engineer shall give notice of his decision to the Employer and the Contractor. Such decision shall state that it is made pursuant to this Clause.

         Unless the Contract has already been repudiated or terminated, the Contractor shall, in every case, continue to proceed with the Works with all due diligence and the Contractor and the Employer shall give effect forthwith to every such decision of the Engineer unless and until the same shall be revised, as hereinafter provided, in an amicable settlement or an arbitral award.

         If either the Employer or the Contractor be dissatisfied with any decision of the Engineer, or if the Engineer fails to give notice of his decision on or before the eighty-fourth day after the day on which he received the reference, then either the Employer or the Contractor may, on or before the seventieth day after the day on which he received notice of such decision, or on or before the seventieth day after the day on which the said period of 84 days expired, as the case may be, give notice to the other party, with a copy for information to the Engineer, of his intention to commence arbitration, as hereinafter provided, as to the mater in dispute. Such notice shall establish the entitlement of the party giving the same to commence arbitration, as hereinafter provided, as to such dispute and, subject to Sub-Clause 67.4, no arbitration in respect thereof may be commenced unless such notice is given.

         If the Engineer has given notice of his decision as to a matter in dispute to the Employer and the Contractor and no notice of intention to commence arbitration as to such dispute has been given by either the Employer or the Contractor on or before the seventieth day after the day on which the parties received notice as to such decision from the Engineer, the said decision shall become final and binding upon the Employer and the Contractor.

         Amicable Settlement

67.2  Where notice of intention to commence arbitration as to a dispute has been given in accordance with Sub-Clause 67.1, the parties shall attempt to settle such dispute amicable before the commencement of arbitration. Provided that, unless the parties otherwise agree, arbitration may be commenced on or after the fifty-sixth day after the day on which notice of intention to commence arbitration of such dispute was given, even if no attempt at amicable settlement thereof has been made.

         Arbitration

67.3  Any dispute in respect of which:

         (a) the decision, if any, of the Engineer has not become final and binding pursuant to Sub-Clause 67.1, and

         (b) amicable settlement has not been reached within the period stated in Sub-Clause 67.2,

         shall be finally settled, unless otherwise specified in the Contract, under the Rules of the International Chamber of Commerce by one or more arbitrators appointed under such Rules. The said arbitrator(s) shall have full power to open up, review and revise any decision, opinion, instruction, determination, certificate or valuation of the Engineer related to the dispute.

         Neither party shall be limited in the proceedings before such arbitrator(s) to the evidence or arguments put before the Engineer for the purpose of obtaining his said decision pursuant to Sub-Clause 67.1. No such decision shall disqualify the Engineer from being called as a witness and giving evidence before the arbitrator  on any matter whatsoever relevant to the dispute.

         Arbitration may be commenced prior to or after completion of the Works, provided that the obligations of the Employer, the Engineer and the Contractor shall not be altered by reason of the arbitration being conducted during the progress of the Works.

         The arbitration shall be conducted in a third country, in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce.

         Failure to Comply With Engineer’s Decision

67.4  Where neither the Employer nor the Contractor has given notice of intention to commence arbitration of a dispute within the period stated in Sub-Clause 67.1 and the related decision has become final and binding, either party may, if the other party fails to comply with such decision, and without prejudice to any other rights it may have, refer the failure to arbitration in accordance with Sub-Clause 67.3. The provisions of Sub-Clause 67.1 and 67.2 shall not apply to any such reference.

         NOTICES

         Notice to Contractor

68.1  All certificates, notices or instructions to be given to the Contractor by the Employer or the Engineer under the terms of the Contract shall be sent by post, cable, telex or facsimile transmission to or left at the Contractor’s principal place of business or such other address as the Contractor shall nominate for that purpose.

         Notice to Employer and Engineer

68.2  Any notice to be given to the Employer or to the Engineer under the terms of the Contract shall be sent by post, cable, telex or facsimile transmission to or left at the respective addresses nominated for that purpose in the Appendix to Tender.

         Change of Address

68.3  Either party may be change a nominated address to another address in the country where the Works are being executed by prior notice to the other party, with a copy to the Engineer, and the Engineer may do so by prior notice to both parties.

         DEFAULT OF EMPLOYER

         Default of Employer

69.1  Void.

         Removal of Contractor’s Equipment

69.2  Void.

         Payment on Termination

69.3  Void.

         Contractor’s Entitlement to Suspend Work

69.4  Void.

         Resumption of Work

69.5  Void.

         CHANGES IN COST AND LEGISLATION

         Increase or Decrease of Cost

70.1  Void.

         Subsequent Legislation

70.2  Void.

         CURRENCY AND RATES OF EXCHANGE

         Currency Restrictions

71.1  If, after the date 28 days prior to the latest date for submission of tenders for the Contract, the Government or authorised agency of the Government of the country in which the Works are being or are to be executed imposes currency restrictions and/or transfer of currency restrictions in relation to the currency or currencies in which the Contract Price is to be paid, the Employer shall reimburse any loss or damage to the Contractor arising therefrom, without prejudice to the right of the Contractor to exercise any other rights or remedies to which he is entitled in such event.

 

         Rates of Exchange

 

72.1  Where the Contract provides for payment in whole or in part to be made to the Contractor in foreign currency or currencies, such payment shall not be subject to variations in the rate or rates of exchange between such specified foreign currency or currencies and the currency of the country in which the Works are to be executed.

         Currency Proportions

72.2  The Employer requires the Tender to be expressed in United State Dollar (USD) and payment to be made in USD and Vietnamese Dong (VND), provided that import facilities to be paid by USD and local construction to be paid by Vietnamese Dong (VND) are required. If the Contractor has stated the proportions or amount of other currency or currencies in which he requires payment to be made, the rate or rates of exchange use for calculating the payment of such proportions or amounts shall be those prevailing, as determined by FIRST VINA BANK in Viet Nam, on the date of payment.

         Currencies of Payment for Provisional Sums

72.3  The Contract provides for payment in USD and VND and the proportions or amount to be paid in USD in respect of Provisional Sums shall be determined in accordance with the principles set forth in Sub-Clause 72.1 and 72.2 as and when these sums are utilised in whole or in part in accordance with the provisions of Clause 58.