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s THE SOUTH AFRICAN INSTITUTION OF CIVIL ENGINEERING
THIRD EDIION (2015)
ISBN 978-06399234 978-06399234
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GENEL CONDITINS OF CONTCT OR CONTRUCTION WORK Third Edition
(2015)
The South African Institution of Civil Engineering Physical address:
Postal address
SAICE House Block 19 Thornhill Oice Park Bekker Street Midrand
Private Bag X200 Halfway House 1685
Contact numbers:
E-mail and website
Tel: +27 11 805 5947 Fax: +27 11 805 5971
E-mail:
[email protected] Website http://www.saice.org.za
Copyright 2018 by the South African Institution of Civil Engineering All rights reserved
ISBN 978-0-639923406
3rd Print
FOREWRD
The South African Institution of Civil Engineering has a strong tradition of developing, ublishing and maintaining conditions of contract and has, over several decades, ublished six editions of the General Conditions of Contract for Civil Engineering Works. However, to satisfy the Construction lndustry Development Board's requirements for standard conditions of contract, the 1990 edition was replaced in 2004 by the publication of the General Conditions of Contract for Construction Works, First Edition, abbreviated to CC 2004
I turn, GCC 2004 was replaced in 2010 by the General Conditions of Contract for Construction Works, Second Edition (abbreviated to GCC 2010) to clarify interre responsibilitie sponsibilities s and to make provision for a wider wider spectrum of constructio construction n works. GCC 2010 was an ideal document for dealing with civil, mechanical, electrical and building rojects, or a combination of various types of proects, but after five years of application, it became clear that certain amendments were necessary. Amongst other things, the latest eneral Conditions of Contract for Construction Works, Third Edition (2015) (abbreviated to GCC 2015) states that the Contractor's time risk allowances must be indicated on the Programme Programm e of Works. lt also permits the Contractor to suspe suspend nd the Works iiff the Employer fails to make payment on a payment certificate and includes delay and cost due to excepted risks (like strikes and electricity cuts) as an entitlement that the Contractor may claim. A Variable erformance Guarantee is added to the list of securities and it allows for the selection of inflation indices that are appropriate to the type of Works to be carried out The amendments and use of simpler and more concise wording in the latest edition should ensure that GCC 2015 will remain relevant in the future and provides supportive contract administration and the equitable appropriation of risks. These General Conditions of Contract are to be used with the contract documentation format as a s prescribed prescrib ed by the Construction lndustry Development Development Board in the t he Standard Standa rd for Uniformity in Construction rocurement and in conjunction with SANS 1921 to set out the requirements and constraints relating to the manner in which the contract work is to be performed.
ii
ACKNOWLEDGEMENT
The South African Institution of Civil Engineering wishes to acknowledge the valuable contributions made by the following organisations who endorsed GCC 2015: •
Consulting Engineers South Africa
•
Electrical Contractors' Association of South Africa
•
Institute of Municipal Engineering of Southern Africa
•
South African Black Technical and Allied Careers Organisation
•
South African Forum of Civil Engineering Contractors
•
South African Institute of Electrical Engineers
South African Institution of Mechanical Engineering
EDITOR'$ NOTES FOR 2nd PRINT
Recommended abbreviatis
For ease of reference the title of this document is recommended to be abbreviated to "GCC 2015. 2015. Coecon o he 1 st Pn
One formatting correction, and other minor corrections to text of the 1 st Print, already published on 2017-06-09 on the SAICE website at www.saice.org.za, have been incorporated into this 2nd Print. Further corrections to this document may be published on the SAICE website: www.saice.orgza.
EDITOR'$ NOTES FOR 3 rd PRINT
Coecon Coeco n o he 2nd Pn
Two corrections to text of the 2nd Print, already published on the SAICE website at www.saiceorg.za, have been incorporated into this 3rd Print. These are corrections to clauses 6.10.1.6 and 10.1.3, and to the Adjudication Rules. Further corrections to this document may be published on the SAICE website www.saice.org.za.
iii
GENERAL CONDITIONS OF CONTRACT FOR CONSTRUCTION WORKS, HIRD EDITION (2015) Pae
ONTENTS
New clauses indicated as (new) and changed clauses indicated as (changed)
1. GENERAL .1
1.2
Definitions Definitions
Interpretations
5
2
Delivery of notices
5
22
Extent of indemnification
5
23
Authority of representatives
5
24
Singular and plural, masculine and feminine
6
25
Marginall notes Margina not es or headings
6
1.3 General provisions 3 Concessions not to constitute waivers
6 6
32
Governing law
6
33
Language
6
34
Supplementary Agreement
6
35
Contractor's copyright
7
36
Employers copyright (new)
7
2. BASI BASIS S OF OF CONT CONTRA RACT CT
8
2.1
8
Available data and inrmation inrmation
2
Available data
8
22
lnspection of the Site (changed)
8
23
Obtaining information (changed)
8
2.2
8
Adverse physical conditions
22
Adverse physical conditions
8
222
Further notices
9
223
Contractor to carry out additional work
9
224
Contractor's right to claim
9
2.3 23
2.4 24
0
Technical data
0
Technical data
0
Ambiguity or discrepancy
0
Ambiguity or discrepancy
iv
24.2
2.5 251
10
Additional cost due to ambiguity
Assignment
10
Assignment
10
3. EMPL EMPLOY OYER ER'S 'S AGE AGENT NT
11
3.1
11
Qualifications of the Employer's Agent
3.1.1 Qualifications Qualificat ions of the Employer's Agent (new) 3.2 Functions of the Employer's Agent
11 11
3.2.1
Function of the Employer's Agent
11
322
Employer's Agent to consult with Contractor and Employer
11
3.2.3
Specific approval of the Employer required
11
324
Employers agent for health and safety
11
3.3
Employer's Agents Representative
12
331
Nomination of Employer's Agents Representative
12
332
Authority of Employer's Agents Agents Representative
12
333
Limitation of authority of Employer's Agents Agents Representative
12
334 335
Employer's Agents authority to delegate Limitations on delegations
13 13
336
Contractors right to refer to E Employer's mployer's Agent
13
4. CONTRA CONTRACTO CTOR'S R'S GENE GENERAL RAL OBLIG OBLIGATI ATIONS ONS
14
4.1
14
Extent of obligations and liability
411
Extent of Contractors obligations obligations
14
4.1.2
Contractors liability for own design errors
14
4.2
Employer's Agents instructions
14
421
Wrks to comply to Employer's Employer's Agents instructions
14
42.2
lnstructions from Employer's Agent only
14
4.3
14
Legal provisions
431
Compliance Complian ce with applicable laws
14
4.32
Proof of good standing
14
4.4
Subcontracting
15
4.4.1
Subcontracting whole Contract
15
442
Subcontractor to be approved (new)
15
4.4.3
Liability for subcontractors
15
44.4
Selection of subcontractors in consultation with Employer Employer
15
4.4.5
Contractors Contrac tors liability unaec unaected ted by selection of subcontractors
15
44.6
Assignment in the case of termination
15
44 7
Assignment of benefit of subcontractors subcontractors
15
V
4.5
Notices and fees
16
4.5.1
Giving of notices and payment of fees
16
4.5.2
Employer's responsibility for approval
16
4.5.3
Contractor's responsibility for consents
16
4.5.4
Contractor to be compensated
16 17
4.6 Patent rights 4.6.1 Patent and protected rights
17
4.6.2
1 7
4.7
4.7.1 4.8
Payments for rights Fossils
17 17
Fossils etc Facilities r others
18
4.8.1
Facilities for others
18 18
4.8.2
Additionall compensation for providing facilities Additiona
18
4.9
4.91
Construction Construction Equipment
19
Prohibition on removal of Construction Equipment
19
4.10 Contractor's employees 4.101 Engagement of employees
1 9
4.10.2 Information in respect of employees employees
19
4.11 Competent employees
19
4.11.1 Competent employees
19
4.11.2 Removal of incompetent employees employees
20
4.12 Contractor's superintendence
20
4.12.1 Contractor's superintendence superintendence
20
412.2 Construction Manager
20
4.123 Construction Manager to receive instructions 4.123
20
5. TIME TIME AND RELATE RELATED D MAERS MAERS
21
5.1
21
5.1.1 5.2
52.1 5.3
19
Time calculations
21
Time calculations Commencement of the Contract
21 21
Commencement of the Contract
21
Commencement of the Works
21 21
5.3.1
Commencement of the Wrks
21
5.3.2
Unacceptable Unacceptable documentation
21 21
5.3.3
Time to instruct commencement of the Wrks
22
5.4
5.4.1
Accs to the Site
22
Access to and possession of Site
22
vi
5.4.2
Access not exclusive
22 22
5.4.3
Delays in giving possession
22
Time r Practical Completion
22 22
5.5 5.5.1
5.6
Time for Practical Completion
22
Programme
23 23
5.6.1
Programme of Works
23
5.6.2
Contents of the programme (5.6.24 changed)
23
5.6.3
Approval of the programme
24
5.6.4
Review and adjustment of the programme
24 24
5.6.5
Approval means no relief of Contractor's responsibilities
24
5. 7
Progress of the Works
24
5.7.1
Rate of progress
24
5.7.2
Night work changed)
2 5
5.7.3
Acceleration
25
5.8
Non-working times
2 6
5.8.1
Non-working times
26
5.8.2
Notice for work during non-working times
26
59
lnstructions
26
5.9.1
Drawings and instructions
2 6
5.9.2
Further drawings and instructions
2 6
5.9.3
Contractor to give notice timeously
26
5.9.4
Documents to be provided timeously
27
5.9.5
Contractor to give efect to drawings etc
2 7
5.9.6
Employers Agent's failure to comply timeously
2 7
5.9.7 Employers Agent to approve Contractor's designs and drawings 51 O Delays attributable to the the Employer
7 2 28
5.10.1 Delays attributable to the Employer
28
5.11 Suspension of the Works
28
5.11.1 Suspension of the Works by Contractor new)
28
5.11.2 Suspension of the Works by Employers Agent
28
5.11.3 Protection of the Works during suspension
29 29
5.11.4 Claim as a consequence of suspension
29
5.11.5 Proceeding with the Works after payment new)
29
5.11.6 Suspension lasting more than than 84 days days
29
5.12 Extension of time r Practical Completion Completion 5.12.1 Extension of time for Practical Completion
30
vii
30
5.12.2 Some reasons for extension of time
30
5.12.3 Relevant adjustments adjustments to General ltems
30
5.12.4 Acceleration instead of extension extensi on of time
30
5.13 Penalty Penalty r delay
31 31
5.13.1 Penalty for delay
31
5.13.2 Reduction of penalty
31
5.14 Completion
31
5.14.1 Practical Completion (changed)
31 31
5.14.2 lssue of Certificate of Practical Completion
32
5.14.3 Consequences of Practical Completion
32
5.14.4 Certificate of Completion
33 33
5.14.5 Consequences of completion
33
5.14.6 Occupation by the Employer
33
5.14.7 Dierent dates dates of Practical Completion
34
515 Clearance of Site
34 34
5.15.1 Clearance of Site on completion 5.16 Approval
34 34
5.16.1 Final Approval Certificate
34
5.16.2 Approval only by Final Approval Approval Certificate
35
5.16.3 Latent defects liability
35
6. PAYME PAYMENT NT AND REL RELATE ATED D MATTE MATTERS RS
36
6.1
36
6.1.1 62
Payment to Contractor Payment to Contractor
36 36
Security
36 36
6.2.1
Delivery of security
36
6.2.2 6.2.3
Contractor failing to select or provide security (changed) Validity of performance guarantee
36
6.3
Variations
3 6 37
6.3.1
Variations 6.3. 1.2 changed)
37
6.3.2
Orders for variations to be in writing
3 7
6.3.3
Changes in quantities
38
6.4
Value of variations
38
6.4.1
Valuation of variations
38
6.4.2
Delivering and applying the valuation
39
6.4.3
Dely in delivering valuation
39
65
Daorks
39 39
viii
6.5.1
Basis of payment for dayworks
39
6.5.2
Quotations Quotations for materials
40
6.5.3
Details to be recorded
40
6.5.4
Dayworks statement
41
6.6
Provisional sums and prime cost sums
41
6.6.1 6.6.2
Provisional sums Prime cost sums
41 42
6.6.3
Provisional/prime Provisional/prime cost sums and contingency allowance
42
6.6.4
Supporting documents
42
6.7 6.7
Measurement of the Works
42
6.7.1
Quantities
42
6.7.2 6.7. 2
Work to be measured measured
43
6.7.3
Employer's Agents intention to measure
43
6.7.4
Contractors failure to comply
43
6.7.5
Method of measurement measurement
44
68
44
Adjustment Adjustment in rates and/or prices
6.8.1
Rates and prices final and binding
44
6.8.2
Application of the Contract Price Adjustment Factor
44
6.8.3
Variation in cost of special materials
44
6.8.4
Subsequent changes in legislatio legislation n
44
6.9
Vesting of Plant and materials
45
6.9.1
Vesting of Plant and materials
45
6.9.2
Definition of "materials
45
69.3
ldentification of Plant and materials
45
6.9.4
Prohibition on removal of Plant and materials
45
6.9.5
No approval by vesting
46
6.10 Payments
46
6.10.1 Interim payments
46
6.10.2 Valuation of material brought onto Site
47
6.10.3 Retention money
48
6.10.4 Delivery, dissatisfaction with and payment of of payment certificate
48
6.10.5 Payment of retention money money
48
6.10.6 Set-o and delayed delayed payments payments (changed)
49
6.10.7 6.10. 7 Corrections Correctio ns to payment certificates certific ates
50
6.10.8 Contractors Contractors completion completion statement statement
50
6.10.9 Final Payment Payment Certificate
50
ix
6.11 Variations exceeding exceeding 15 per cent
7 QUALIT QUALITY Y AND AND RELA RELATE TED D MAERS MAERS
2
71
2
Quality of Construction Equipment Equipment
2
Qy E
7.2 Quality of Plant, workmansh workmanship ip and materials 2 Qy P, wkh wkh
2 2
7.3
2
3
7.4
Access to the Works
2
h Wk
3
Samples and testing
4
42
h Wk
3
43
44
4
Eh
4
7.5 Examination of the Works E wk b v
4 4
2
Dvy P
4
3
b v wh y
4
4
Dy by Ey k vy P
v v k
Defective Plant, materials and work
7.6
Mk P
2
P
3
Rv wk
4
D h wh Ey'
7. 7
78
Search fr defects
h
Defects
8
Mk D by P
82
k
8
83
Ry y wk
8
79 9
8
Urgent remedial work
8
wk
8. RI RISK SKS SA AND ND R REL EL TED MAERS
60
81
60
Protection of the Works
X
8.1.1
Protection of the Works
60
8.1.2
Pollution prevention and intererences
60
8.1.3
Excessive loads and trac
60
8.14
lndemnity by Contractor
60
8.15
Prices for protection of the Works
60
8.2
Care of the Works
61
82.1
Gare of the Works
61
8.2.2
Damage or physical loss
61
8.3
Excepted risks
62
8.3.1
Excepted risks (changed)
62
8.3.2
Claim for excepted risks (new)
63
8.4
lndemnifications
63
84.1
lnjury to persons and damage to property
63
8.4.2
lndemnity by Employer
64
8.5 851
8.6
Reporing accidents
64
Reporting of accidents
64
lnsurances
65
861
lnsurances lnsuranc es to be efected efected 8.6.1.4 changed)
65
8.6.2
Liability of deductibles
66
86.3
Requirements relating to subcontractors
66
8.64
Contractor to efect insurances obtainable
67
8.6.5
Employer to approve insurance policy
67
8.6.6
Contractor to produce proof of payment
67
867
Remedy on Contractor's failure to insure
67
9. TERM TERMIN INATI ATION ON OF CON CONTR TRACT ACT
68
9.1
68
Termination of Contract
91.1
Termination due to external events (changed)
68
9.1.2
Termination Termin ation due to internal events (changed)
68
91.3
Existing structure destroyed
69
91.4
lncreased costs
69
9.1.5
Payment if Contract is terminated
69
9.1.6
Over-riding provisions
70
Termination by Employer
70
9.2 92.1
Termination by the Employer 9. 1.32 new)
9.2.2 9.2.3
70 73
Payment to complete the Works Notices to trustee/liquidator
73
xi
9.3
Termination by Contractor
73
9.3.1
Termination by the Contractor (changed)
73
9.3.2
Removal Removal o off items and payment to Contractor Contractor
74
9.3.3
Other rights of the Contractor
75
9.3.4
Notices to trustees/liquidators
75
10
CLIM CLIMS S AND AND DIS DISPU PUTE TES S
76
101 Contractor's claim
76
10.1.1 Contractor's claim
76
10.1.2 Extended period for claim
77
10.1.3 Records of facts and circumstances circumstances for claim claim
77
10.1.4 Contractors failure to comply with notice period
78
10.1.5 Employers Agents ruling on Contractors claim
7
102 Dissatisfaction claim
7
10.2.1 Dissatisfaction claim
7
10.2.2 Failure to claim dissatisfaction
7
10.2.3 Employer's Agents ruling on dissatisfaction 103 Dispute notice
80 80
10.3.1 Dispute notice
80
10.3.2 Dispute to be referred
80
10.3.3 Ruling in full force
81
104 Amicable settlement
81
10.4.1 Dispute resolution by amicable settlement
81
10.4.2 Amicable settlement failure
81
10.4.3 Binding amicable settlement
81
10.4.4 No reference of amicable settlement outcomes outcomes
81
105 Adjudication 10.5.1 Dispute resolution by standing adjudication
82
10.5.2 Dispute resolution by ad-hoc adjudication
82
10.5.3 Rules for adjudication
82
10.5.4 Implementation of decision (new)
82
106 Disagreement with Adjudication Boards decision
82
10.6.1 Disagreement with Adjudication Boards decision
82
10.6.2 Failure to comply with with a decision
83
10.6.3 Failure to gie a decision in time time
83
107 Arbitration
83
10.7.1 7.1 Reference to arbitration
83
82
10. 72 72 Rules for arbitration
84
1073 Reasoned award
84
10.8 Court proceedings
84
1081 Reference to court
84
10.9 Appointment
84
109.1 Appointment of dispute resoving persons 10.10 Common provisions
84 84
1010.1 Contractor's right to court proceedings
84
10102 Employers Agent as witness
84
10103 Arbitrator and court's power regarding a ruing or a decision
85
10.11 Continuing validity
85
10111 Continuing validity
85
Contract Price Adjustment Schedule (changed)
86
Adjudication Board Rules
89
Pro Formas
96
Appendix 1: Form of Oer and Acceptance
97
Appendix 2: Contract Data (changed)
103
Appendix 3 Perormance Guarantee (changed)
110
Appendix 4: Disclosure Statement
114
Appendix 5: Adjudication Board Member Agreement
115
Alphabetical subject index
117
xiii
GENERAL CONDITIONS OF CONTRACT FOR CONSTRUCTION WRKS, THIRD DITION (2015) 1. GENRAL 11
Definitions
1.11
In the Contract (as hereinafter defined) the following words and expressions shall have the meanings hereby assigned to them except where the context otherwise requires:
1.11.1
"agreed" means agreed by the Employer and the Contractor, Contrac tor, unless specifically stated otherwise
1112
"Bill of Quantities" means the document so designated in the Pricing Data, if any
1.1.1.3
"Certificate of Completion" means the certificate issued by the Employer's Agent stating the date on which completion was achieved
1114
"Certificate of Practical Completion" means the certificate issued by the Employer's Agent stating the date on which Practical Completion was achieved.
1.1.1.5
"Commencement
Date"
means
the
date
that
the
Agreement, made in terms of the Form of Oer and Acceptance, comes into eect 1116
"Construction Equipment" means all appliances or things of whatsoever nature required for carrying out, completing or correcting defects in the Wrks, but does not include materials, Plant or other things that are part of or intended to form part of the Permanent Wrks.
1.1.1.7
"Contract
"
means the documentation of the agreement
between the parties in terms of the Form of Oer and Acceptance, and such written amendments or additions to he Contract as may be agreed to between the parties
1
Definitions
1.1.1.8
"Contract Data" means the document that sets out the specific data which, together with these General Conditions of Contract, collectively describe the risks, liabilities and obligations of the contracting parties and the procedures for the administration of the Contract.
1.1.1.9
"Contractor" means the person named in the Contract Data whose oer has been accepted in the Form of Ofer and Acceptance and the legal successors in title of this person.
1.1.110
"Contract Price" means the Contract Sum subject to such addition thereto or deduction therefrom as may be made from time to time under the provisions pro visions of the Contract.
111.11
"Contract Sum" means the accepted amount provided for in the agreement made in terms of the Form of Oer and Acceptance
1.1.1.12
"Day" shall mean a calendar day.
1.1.113
"Defects Liability Period" means the period stated in the Contract Data, if any, commencing from the issue of the Certificate of Completion, or Certificates of Completion in the event of more m ore than one Certificate Certificate of Completion having been issued for dierent parts of the Works, during which the Contractor has both the right and the obligation to make good defects in the materials, Plant and workmanship covered by the Contract.
1.1.114
"Due Completion Date" means the date of expiry of the time stated in the Contract Data for achieving Practical Completion
of
the
Works,
calculated
from
the
Commencement Date and as adjusted by such extensions of time or acceleration as may be allowed in terms of the Contract. 1.1.1.15
"Employer" means the person fr whom the Works are to be carried out and who is named as the Employer in the Contract Data, and the legal successors in title of this
2
person. 111.16
"Employer's Agent" Agent" eans the person naed as the Eployer's Agent in the Contract Data, or any other person appointed fro tie to tie by the Eployer, and of who the Contractor is notified, in writing, to act as Eployers Agent for the purposes of the ontract as substitute for the Eployers Agent so naed.
1.11.17
"Eployer's Agents Representative" eans the natural person appointed fro tie to tie by the Eployers Agent in ters of the Contract.
1.1.1.18
"Final Approval Certificate" eans the certificate certificate issued by the Eployers Agent stating the date on which the Works were copleted and all defects corrected in accordance with the Contract.
1.1.1.19
"Fixed Price Contract" eans the Contractor is paid the Contract Su for carrying out the Works subject to adjustents in accordance with the Contract.
11.1.20
"For of Offer and Acceptance" eans the docuent that foralises the legal process of oer and acceptance and gives rise to the Contract.
111.21
"General ltes" eans ites stipulated in the Pricing Data relating to general obligations, site services, facilities, and/or ites that cover eleents of the cost of the work which are not considered as proportional to the cost of the Peranent Works.
11.1.22
"Peranent Works" eans the peranent works to be designed (if required), constructed, and/or provided in accordance with the ontract.
111.23
"Plant" eans achinery, apparatus, articles and things of all kind that becoe part of the Peranent Works to be
3
provided in accordance with the Contract 1.11.24
"Practical Completion" means that the whole or portion of the Works has reached a state of readiness, fit for the intended purpose, and occupation without danger or undue inconvenience to the Employer, even though some work may be outstanding
1.1.125
"Pricing Data" means the document that sets out the Pricing Strategy and provides the criteria and assumptions which it will be assumed in the Contract were taken into account by the Contractor when developing the Contract Sum
1.1.126
"Pricing Strategy" means the strategy stated in the Contract Data which is adopted to secure prices and to remunerate the Contractor in terms of the Contract.
11.127
"Re-measurement Contract" means the Contractor is paid an amount determined from the actual quantities of work completed multiplied by the rates or prices for such work, subject to adjustments in accordance with the Contract.
11128
"Scope of Work" means the document that specifies and describes the Works which are to be provided, and any other requirements requirements and constraints relating to the manner in which the work is to be carried out.
111.29
"Site" means the land and other places made available by the Employer, for the purposes of the Contract, on, under, over, in or through which the Works are to be carried out
1.1.1.30
"Site Information" means the document that describes the Site as at the time of tender to enable the tenderer to price the tender and to decide upon the method of work and the programme.
11131
"Supplementary Agreement" means an additional contract between the Employer and the Contractor for carrying out work, supplemental to the original Contract, which does not
4
meet the requirements to be carried out by a Variation Order in terms of Clause 6.3.1. 1.1.1.32
"Temporary Works" means the temporary works required for or in connection with carrying ca rrying out the t he Permanent Works and shall include items which are not intended to be permanent, or to form part of the Permanent Works.
1.1.1.33
"Works" means the Permanent Works together with such Temporary Works as may be necessary for carrying out the Works.
1.1.1.34
"writing"
means
any
hand-written
typed
or
printed
communication (comprising words, figures or drawings) including facsimiles, electronic communication, or any similar communication resulting in a permanent record. "In writing" and an d "written" shall have corresponding meanings. 1.2
Interpretations
1.2.1
Any written communication between the parties shall have been
Delivery of notices
duly delivered if: 1.2.1.1
handed to the addressee or to his duly authorised agent, or
1.2.1.2
delivered at the address of the addressee as stated in the Contract Data; provided that the Employer, Employer's Agent and Contractor shall be entitled, by written notice to each other, to change their said addresses.
12.2
In respect of any indemnification against liability to third parties
Exent of
given by either party to the other, the indemnification shall cover
indemnification
all claims, demands, proceedings, damages, costs, charges and expenses in relation thereto or arising therefrom. 1.2.3
The common common or or statute law shall determine whether any person person Authority of representatives
actig, or purporting to act on behalf of the Employer, Employers Agent or Contractor is duly authorised, save to the
5
extent that a party shall, by written notice to each of the others, designate a person or the holder of any oice, to the exclusion of another person or holder of office, to have such authority, or to limit in any way, or terminate the authority of such designated person or holder of ofice. 12.4
Where the context requires:
Singular and plural,
1241
Words importing the singular also include the plural and vice versa, and
12.42
masculine and feminine
Words importing the masculine gender also include the feminine and the neuter.
125
1.3 13.1
The marginal notes or headings in these General Conditions
Marginal notes or
shall not form part of the Contract
headings
General provisions No grant by the Employer or the Contractor to the other of any
Concessions not
concession, waiver, condonation or allowance shall, in respect to constitute cons titute of any specific event or circumstance other than that in respect waivers of which the grant was made, constitute a waiver of the rights of the grantor in terms of the Contract, or an estoppel of the grantor's right to enforce the provisions o the Contract 1.32
The law which is to apply to the Contract, and according to
Governing law
which the Contract is to be interpreted, shall be the law of the Republic of South Africa, unless otherwise stated in the Contract Data 133
The language of of the the Contract and of written communications communications
Language
shall be Englis, unless otherwise stated in the Contract Data 13.4
In the event that that the the Contractor and the Employer conclude a
Supplementary
Supplementary Agreement, the additional work carried out in Agreement terms of such an agreement shall not be taken to be a variation or addition under Clause 63, but to be a separate contract The value of such additinal work shall, for the purposes of
6
Clause 6.11, not be taken into account for this Contract but it shall be taken into account for the separate contract concluded in terms of the Supplementary Agreement 35
Except where otherwise stated in the Contract the Contractor
Contractor's
shall retain the copyright and other intellectual property rights in
copyright
documents supplied to the Employer or Employer's Agent under the Contract The Contractor shall legally be deemed to have given the Employer a non-terminable transferable non-exclusive royalty free licence to copy use and communicate the Contractors documents including making and using modifications of such documents for the purposes of further work required to the Works 3.6
Except where otherwise stated in the the Contract Contract the Employer
Employers
shall retain the copyright and other intellectual property rights in
copyright
documents supplied to the Contractor under the Contract The Employer shall legally be deemed to have given the Contractor
a
non-terminable
transferable
non-exclusive
royalty-free licence to copy use and communicate the Employers documents for the purposes of the Contract
7
2. BA BASI SIS S OF CO CONT NTRA RACT CT 2.1
Available data and information
2.1.1
The Employer shall have made available to the Contractor, as
Available data
part of, or by reference in the Site Information, data relevant to the Works obtained by or on behalf of the Employer, but the Contractor shall be responsible for his own interpretation thereof and deductions therefrom. 2.1.2
The Contractor shall b be e deemed to have inspected and examined
lnspection of
the Site and its surroundings and to have studied all available the Site information pertaining thereto before submitting his tender (as far as is reasonable). The Contractor shall thus be considered knowledgeable in respect of: 2.1.2.1
The form and nature of the Site and its surroundings.
2.1.2.2
Environmental, hydrological and climatic conditions.
2.1.2.3
The extent and nature of the work and materials required for carrying out and completion of the Works.
2.1.2.4
The means of access to the Site and the accommodation he may require.
2.1.2.5
The design of the Works and site conditions insofar as they afect carrying out the Works with regard to health, safety and the environment.
2.1.3
The Contractor shall, in general, be deemed to have obtained all
Obtaining
available information on risks, cntingencies and all other
inormation
circumstances which may influence or affect the Works (as far as is reasonable).
2.2 2.2.1
Adverse physical conditions lf, while carrying out the Works, the Contractor encounters
Adverse
adverse physical conditions (other than weather conditions at the Site or the direct consequences of those particular weather
physical conditions
8
conditions)
or
artificial
obstructions,
which
conditions
or
obstructions could not have been reasonably foreseen by an experienced contractor at the time of submitting his tender, and the Contractor is of the opinion that additional work will be
:ta
necessary which would not have been necessary if the particular physical conditions or artificial obstructions had not been encountered, he shall give notice to the Employer's Agent in writing as soon as he becomes aware of the conditions or obstructions aforesaid, stating:
of 22.11
The nature and extent of the physical conditions and artificial obstructions encountered, and
2212 22.2
The additional addition al work required require d by reason thereof. thereof . Should additional or more extensive adverse physical conditions
Furher notices
or artificial obstructions within the meaning of Clause 221 be encountered by the Contractor, he shall give further notices thereof in terms of Clause 221 223 22 3
Unless otherwise instructed instructe d by the Employer's Agent, the Contractor to Contractor shall carry out the additional work proposed in the
carry out
notice or notices under Clauses 221 and 222 without limiting
additional work
the right of the Employer's Agent to order a suspension of work in terms of Clause 5112, or a variation in terms of Clause 63. 224
lf the Contractor has duly given the notice referred to in either
Contractor's
Clauses 221 or 222, he shall be entitled, in respect of the delay
right to claim
to Practical Completion and/or to proven additional cost, to make a claim in accordance with Clause 101, provided that the cost and time of all work done by the Contractor prior to giving the notice or notices in terms of Clauses 22.1 and 222 shall be regarded as covered by the rates and/or prices set out in the Pricing Data and the time stated in the Contract Data relating to Clause 11.1.14
9
2.3 2.3.1
Technical data The Contractor shall le legally gally be deemed to have based his tender Technical data on the technical data provided in the Contract and if, in the performance of the Contract, any circumstances shall dier from the said technical data, which dierence causes delay to Practical Completion and/or brings about proven additional cost, the Contractor shall be entitled to make a claim in accordance with Clause 10.1.
2.4 2.4.1
Ambiguity or discrepancy lf an ambiguity in, or discrepancy between the documents is Ambiguity or found, the Employer's Agent shall provide the necessary
discrepancy
clarification or instruction. 2.4.2
lf compliance with any such instruction shall result in delay to Practical Completion and/or proven additional cost, the
Additional cost due to
Contractor shall be entitled to make a claim in accordance with
ambiguity
Clause 10.1.
2.5 2.5.1
Assignment Neither the Contractor nor the Employer shall, without the written consent of the other, assign the Contract, or any part thereof, or any obligation under the Contract, or cede any right or benefit thereunder.
10
Assignment
3. EMPL EMPLOY OYR R'S 'S AG AGNT NT 31
Qualifications of the
Qualifications of the mployer's Agent
mployer's Agent 3.1.
The natural person acting, or purporting to act, as the Employer's Agent shall be a registered professional in a built environment profession that is appropriate to the Scope of Work.
2 3.2.
Functions of the mployer's Agent The function of the Employer's Agent is to administer the
Function of the
Contract as agent of the Employer, in accordance with the
mployer's Agent
provisions of the Contract. 3..2
Whenever the Employer's Agent intends, in terms of the
mployer's Agent to
Contract, to exercise any discretion, or make or issue any
consult with
ruling, contract interpretation or price determination, he shall first consult with the Contractor and the Employer in an attempt
to
reach
agreement
Failing
agreement,
Contractor and mployer
the
Employer's Agent shall act impartially and make a decision in accordance with the Contract, taking into account all relevant rele vant facts and an d circumstances. 3.2.
In the event of the Employer's Agent being required in terms
Specific approval of
of his appointment by the Employer to obtain the specific the mployer approval of the Employer for carrying out any part of his
required
functions or duties, such requirement shall be set out in the functions Contract Data The Employer may, by written notice to the Contractor and
mployer's agent or
the Employer's Agent, authorise an agent to act as his
health and safety
representative relating to the responsibilities imposed by the Occupational Health and Safety Act on the Employer. Such an agent, if not the Employer's Agent, shall be responsible to the Employer's Agent in terms of these Conditions of Contract.
11
3.3
Employer's Agent's Representative Representative
3.3.1
The Employer's Agent shall be entitled, by written notice to
Nomination of
the Contractor, to appoint a person as the Employer's
Employer's Agent's
Agents Representative and shall have the power by further
Representative
written notice from time to time to terminate or change such appointment. 3.3.2
The Employer's Agents Representative shall:
Authority of Employer's Employer' s Agent's
3.3.2.1
Observe how the Works are carried out, examine and
Representative
test materials and workmanship, and receive from the Contractor such information as he shall reasonly require Have the authority:
3.3.22 33.2.21
Assigned to him by any provisions of the Contract,
3.32.2.2
Assigned to him by the Employer's Agent in terms of Clause 3.3.4,
332.2.3
To
deliver
to
the
Contractor
oral
or
written
communications from the Employer's Agent, and 3.322.4
To receive, on behalf of the Employer's Agent, oral or written communications from the Contractor
3.3.3
Notwithstanding the aforesaid, the powers and authority of
Limitation of
the Employer's Agents Representative shall be subject to
authority of
the following conditions:
Employer's Agent's Representative
3.331
He shall have no authority to relieve the Contractor of any of his obligations under the Contract and, unless he is authorised thereto in terms of Clause 33.4 he shall have no authority to order any work involving delay, any additional payment by the Employer, or any variation of or in the Works;
333.2
Notwithstanding any authority assigned to him in terms
12
of Clauses 3.3.2 and 33.4, failure by the Employer's Agents Representative to disapprove of any wrk workmanship or materials shall not prejudice the power of the Employers Agent thereafter to disapprove thereof and exercise any of his powers in terms of the Contract in respect thereof 334
The Employer's Agent may by written notice to the
Employer's Agent's
Contractor and the Employer from time to time authorise
authority to delegate
the Employer's Agents Representative or any other person accountable to the Employer's Agent to act on his behalf either generally in respect of the Contract or specifically in respect of particular provisions of the Contract and the act of any such person within the scope of his authority shall for the purposes of the Contract constitute an act of the Employers Agent. Such authorisation shall continue until terminated by written notice to the Contractor and Employer. 3.35
No authority in terms of Clause 33.4 shall be given or be
Lmtatons on
efective in respect of any decision to be taken or certificate
delegatons
to be issued under Clauses 22 442 5.12 5.14 5.16 9.2 10.1 or 102 336
lf the Contractor is dissatisfied with any order or instruction
Contractor's rght to
of the Employer's Agents Representative or any other refer to Employer's person appointed by the Employer's Agent to act on his Agent behalf he shall be entitled to refer the matter to the Employer's Agent who shall promptly confirm reverse or vary such order or instruction.
13
4. CO CONTR NTRACT ACTOR' OR'S S GENE GENEAL AL OBLI OBLIGAT GATION IONS S
4.1 4.1.1
Extent of obligations and liability The Contractor shall, save insofar insofar as it is legally legally or
Extent of
physically impossible, design (to the extent provided in the Contract), carry out and complete the Works and remedy
Contractor's Obligations
any defects therein in accordance with the provisions of the Contract 4.1.2
Where the Contract expressly provides that the Permanent
Contractor's liability
Works, or part of the Permanent Works, shall be designed fr own design errors erro rs by the Contractor, he shall, notwithstanding approval by the Employer's Agent, be liable for any error or deficiency in any drawing or document supplied by him for that part of the Works, and for any loss or damage arising out of such error or deficiency.
4.2 4.2.1
42.2
43 43.1
Employer's Agent's instructions The
Contractor shall,
in carrying
out his aforesaid Works to comply to
obligations, comply with the Employer's Agents instructions
Employer's Agent's
on all matters relating to the Works.
instructions
The Contractor shall shall take instructions only from from the
lnstructions fom
Employer's Agent, the Employer's Agents Representative
Employer's Agent
or a person authorised by the Employer's Agent in terms of Clause 334.
only
Legal provisions The Contractor shall, in fulfilling the Contract, comply with
Compliance with
all applicable laws, regulations, statutory provisions and
applicable laws
agreements, and shall, at the request of the Employer's Agent, provide proof that he has complied therewith 432
lf required, the Contractor Contractor shall shall provide provide proof to the
Proof of good
Employer's Agent that the Contractor is in good standing with respect to duties, taxes, levies and contributions
standing
14
required in terms of legislation applicable to the work in this Contract
4.4
Subcontracting Subcontracting
4.4.1
The Contractor shall not subcontract the whole Contract
4.4.2
whole Contract Except where otherwise provided provided in the Contract, the Subcontractor to be Contractor shall not subcontract any part of the Contract
approved
without the prior written consent of the Employer's Agent which consent shall not be b e unreasonably withheld 4.4.3
The Contractor shall be liable for the acts acts defaults and
Liability for
negligence of any subcontractor, his agents or employees
subcontractors
as fully as if they were the acts defaults or negligence of the Contractor 4.4.
The contractual relationship between the Contractor and Selection of in
subcontractors in
consultation with the Employer in accordance with the
consultation with
requirements of and a procedure set out in the Scope of
Employer
any
subcontractors
selected
by
the
Contractor
Work, shall be the same as if the Contractor had appointed the subcontractor in terms of Clause 3. 4.45
Any appointment appointment of a subcontractor subcontractor in accordance with
Contractor's liability
Clause . shall not amount to a contract between the
unafected by
Employer and the subcontractor, or a responsibility or
selection of
liability on the part of the Employer to the subcontractor and sucontractors shall not relieve the Contractor from any liability or obligation under the Contract. 4.4.6
In the event of termination of the Contract under Clause 9.2
Assignment in the
the subcontract in terms of Clause .. shall be assigned
case of termination
to the Employer upon such an instruction by the Employer 44.7
In the event event of any subcontractor subcontractor having undertaken undertaken Assignment of towards the Contractor in respect of work carried out or
benefit of
goods, materials, Plant or services supplied, any continuing subcontractors obligation extending beyond the date of the Final Approval
15
v ' mp ly a i h n , , c f r C d ' q s a E c s, e E . l Ag m r t h b f uch C ac
e
s
s
e
s
e
e
h
e
e
e
s
e
e
. p e dur o t h ef obg o f r h u x 4 .5 N i nd e
e
e
Gi
4.5.1 T C r :
i ng
e
of n t t c es es a
m nt
h
oW rk ml w t h ay a ee s a s, xid
t h i S
4.5.1.1
e
s
e
c e
l s s a
v r p er cha es re u ire t b gi d q
ter o s
o By , O d a c e R u lt o P A au oy, a l f a l o o r r a u y r
g
4.5.1.1.1
s
b a r o or p e s o
4.5.1.1.2
e
. a d i t h o f k e
s
b
4.5.1
a an l ia i y r a r a d s
. vi o C au .5.1.1 c e a o b p loy ' i s o ibl f r o i g a r T b 4.5 P a e p e q i res e f t e s
s
s
e
r rk , w ch W e T m o ' e p o e r o r he mp e s
ei e o r
e s
e
s
c
ge y t h
A e
E
pr
p vl
rac s a i i g e es on ible r . 3 4 u o r c r g m p s f n a d q n a u r e e i io la e i e r f a d l a m p h . . . 4 5 1 1 a a r i g 4.5 t
i
s
n
v
s
e
s
s
s
s
s
e
o nt
4.
f d t s Epy T
o
cor l uc h u m oC n a
s
s
d
t
b Em r Ag n c e i f a s j u l y h s
c l ianc e t a f r ea v r such e nes s y pr sio s f s Claus e l e s s h om
e
r ac
o b e
pen m
o
d
payment was identified in the Pricing Data, or such sums are payable by the Contractor in the ordinary course of his business.
Patent rights Save in respect of the Employer's or the Employers Agents design of the Works, or method of construction and proprietary
brand
materials
specified,
the
Patent and protected rights
Contractor
indemnifies the Employer against any liability arising from the infringement of any patent rights, design, trade-mark or name, or other protected right in respect of any design work,
Construction
Equipment,
Plant,
machine,
work,
method of construction or material used for or in connection with the Works. Except where otherwise specified in the Contract, the Contractor shall pay all amounts due by him in respect of
Payments fr rights
the rights referred to in Clause 46.1
Fossils All fossils, coins, articles of value or antiquity and structures and other remains or things of geological or archaeological interest discovered on the Site shall, as between the Employer and the Contractor, be considered the absolute property of the Employer The Contractor shall take reasonable precautions to prevent any person from removing or damaging any such article or thing and shall, immediately upon discovery thereof and before removal, inform the Employers Employe rs Agent of such discovery and carry out the Employers Agents instructions for dealing therewith. lf, by reason of such instructions, the Contractor sufers
17
Fossils etc
delay
to
Practical
Completion
and/or
incurs
proven
additional cost he shall be entitled to make a claim in accordance with Clause 10.1.
4.8
Facilities or others
4.8.1
The Contractor shall, in accordance with the the Contract, or the requirements of the Employer's Agent, aord on the Site all reasonable opportunities opportunities for carrying out his work to:
4.81.1
The Employer,
4.8.1.2
Any other contractors employed and other persons authorised by the Employer, and
4813
Any local or other statutory authorities, authorities, who may be engaged in any work on the Site that is not included in the Contract, provided that adequate notice of the necessity thereof is given to the Contractor.
48.2
lf, pursuant to Clause 4.8.1, the Contractor, on the written Addition instruction by the Employer's Agent:
compeni providing fii
4.8.2.1
Makes available to the Employer, or to any such contractor or any such authority, any roads or ways for the maintenance of which the Contractor is responsible, or
4.8.2.2
Provides any other facility or service of whatsoever nature to any of the said persons or authorities, the Contractor shall, unless otherwise provided in the Contract, be entitled to make a claim in accordance with Clause 10.1 for the delay to Practical Completion and/or proven additional cost.
18
4.9 4.9.1
Construction Equipment All Construction Equipment provided by the Contractor Contractor
Prohibition on
shall, when brought onto the Site, be regarded as
removal of
exclusively intended for carrying out the Works and the
Construction
Contractor shall not remove the same from the Site without
Equipment
the consent in writing of the Employer's Agent, which consent shall not be unreasonably withheld The Contractor shall notify the Employer's Agent, in writing, of the name and address of the owner of any such Construction Equipment not owned by the Contractor 4.10 Contractor's employees 410.1 The Contractor shall, unless otherwise provided in the Contract, make his own arrangements for the engagement
Engagement of employees
of all employees and for their payment, housing, feeding and transport (provided that any use of any part of the Site for the said purposes shall be subject to the prior approval of the Employers Agent) and the Contractor indemnifies the Employer against any liability arising out of the Contractors said arrangements, whether such arrangements involve the use of the Site or not. 4.10.2 The Contractor shall, if instructe instructed d by the Employer's Agent,
Infrmation in
deliver to the Employer's Agent information, in such form respect of employees and at such intervals as the Employer's Agent may prescribe, in respect of employees employed by the Contractor on the Site from time to time. 4.11 Competent employees 4.111 To carry out and complete the Works the Contractor shall
Competent
employ on the Site only such persons as are careful,
employees
competent and efficient in their various trades and professions
19
4.11.2 .11.2 The The Emplo ployer yer 's 's Agen entt sh sha all be entitl ntitle ed to to instru instruc ct t h e
Removall of Remova
Con ontr tr acto actor to to rem remove ove fort forth hwith with from from th the e Works rks any any per per son son incmpetent emplo ploy yed by th the e Con Contrac tracto torr f fr r ca carr rr ying ying out the Work orks s who who employees is guilt guilty y o f m miiscon scond duct, uct, or is in incom comp pete etent nt o orr n ne eglig glige ent in t in the he proper pro per pero perorm rmanc ance e o f his hi s dutie d uties, s, or wh w hose pr ose pr e esenc sence e on t on the he
Site is undesirable, and such person shall not again be employed on the Works without the permission of the Employer's Agent. 4.12 Contractor's superintendence
4.12.1 The Contractor shall provide all necessary superintende superintendence nce while carrying out the Works.
Contractor's superintendence
4.12.2 The Contractor, or a competent and authorised agent or representative approved of in writing by the Employer's
Construction Manager
Agent (which approval may at any time be withdrawn in writing), hereinafter called the Construction Manager, shall be on the Site at all times when work is being performed, or when the Employer's Agent shall, with reason, require his presence 4.12.3 The Construction Manager shall have authority to receive, on
behalf
of
communications Employer's
the from
Agents
Contractor, the
all
oral
Employer's
Representative
or
or
Agent other
written or
the
person
authorised by the Employer's Agent in terms of Clause 3.3.4
20
Construction Manager to receive instructions
5. TIME TIME A AND ND RE REL LE ED D MAE MAERS RS
5.1
Time calculations
5.1.1 Except whre oherwise provided in the Contract, where a Time calculations speciic time-span is stipulated in th otrac for carrying out any task o for the ermination of any right, or the duation of any vent or circumstance 51.1.1
The speial non-working days set out i th Contract Data hat fall within the said time-span, as well as
5..1.2
The day on which th ime-span commences shal be excluded from the calculation of the tie-span concerned.
52
Commencement of the Contract
5.2.1 The Contrat shall commence on the Commencemnt Commencement of the Date Contract 53
Commencement of the Works
3.1 Uon the Employer's Agents instructi instruction on the Cntract Cntractor or Commencement shall, save as may be otherwise roided i th Contrct of the Works or be legally or phyially impossible commence carryin out the Works Suh nstruction shall be sub ject o the submison by the Contractor Contractor and approval by the Emplyers Agent, of ocumentation rquired before mmencing t carry out the Works, as set ot in the Conract Data. 5.32 lf the documentati documentatio o referred to in Clause .1 is not Unacceptable submitted within the number f das stipulated in the documentation Contt Data rom the Commencement Date or is found t be unacceptable the mplyer may teminate the Contract in tems of Claus 9.
21
5.33
lf the Employer's Agent's instruction to commence
Time to instruct
carrying out the Works, or to resubmit documentation, is commecement of the not received by the Contractor within 7 days from the
Works
actual date of submission of the documentation referred to in Clause 531, commencement of the Works shall be taken to be on the expiry of such 7 days
54
Access to the Site
541 The
Employer
shall, upon
the
Employers Agent's Access to and
instruction to commence carrying out the Works referred
possession of Site
to in Clause 531, give to the Contractor right of access to the Site, the location of which is stated in the Site Information (including physical access to the extent stipulated in the Site Information) and possession of the whole of the Site subject to any provision to grant the Contractor possession of the Site in portions and/or any requirements as to the order in which the Works shall be carried out, all as stipulated in the Site Information 54.2
lf the access access to and possession of the Site referred referred to in Access not exclusive Clause 54.1 shall shall not be exclusive to the Contractor, such limitations shall be set out in the Contract Data
543
lf the Contractor Contractor suers delay to Practical Completion
Delays in giving
and/or incurs proven additional cost from failure of the
possession
Employer to give possession in accordance with the terms of this Clause, the Contractor shall be entitled to make a claim in accordance with Clause 101, for which purpose the time limit of 28 days provided in Clause 101.11 shall commence to run only from the time when possession of the Site has actually been given
5.5 551
Time r Practical Completion Subject to any requirement in the Contract as to the
Time r Practical
Practical Completion of any portion of the Permanent
Copletion
Works before Practical Completion of the whole, the
22
whole of the Wrks shall be completed by the Due Completion Date
5.6
Programme
5.6.1
Before commencing commencing with the Wrks in accordance with
Programme of Wrks Wrks
Clause 31, the Contractor shall deliver to the Employer's Agent as part of the documentation required, an initial programme in terms of which he will carry out the Wrks in order to meet the Due Completion Date Should it become clear that the approved programme does not reflect the actual progress to meet the Due Completion Date, the Contractor shall deliver to the Employers Agent an adjusted programme 5.6.2
The initial programme and all subsequent adjusted
Contents of the
programmes shall show and, when relevant describe in detail, the entire extent of the work to be carried out,
programme
including, but not limited to: 5.6.21
The Commencement Date, commencement of the Wrks, Due Completion Date, and the planned completion date,
5622
The sequence, timing and resources for carrying out the Wrks,
5.6.2.3
The dates for Site accesses and possessions, approvals, instructions, inspections, tests and all information required to carry out the Wrks,
5624
The events that influence the carrying out of the Wrks, including float and the Contractors time risk allowances,
5.6.2
Other programming information set out in the Scope of Work,
5.626
A detailed cash flow forecast, and
23
On
5.6.27
adjusted
programmes,
the
actual
progress
achieved for the various parts of the Works and the amounts paid. The Employer's Agent shall, within 7 days after the Approval of the
56.3
Contractor has submitted the initial or adjusted programme, approve such programme or, giving his
programme
reasons, instruct the Contractor to amend it, failing which, the submitted programme shall be considered to be the approved programme. programme. 56.4
The programme programme and the cash flow forecast forecast shall be Review and subject to review on a monthly basis. lf so instructed by
adjustment of the
the Employer's Agent, the approved programme and/or
programme
cash flow forecast shall be adjusted by the Contractor: 5.6.4.1
When it no lnger reflects that the actual progress will meet the Due Completion Date in which case the approved programme is suspended, or
5.6.42
When
a
specific
probable
future
event
or
circumstance may increase the Contract Price or delay carrying out the Works. 5.65
The submission to and approval by the the Employer's Agent Approval means no of such programme, or its adjustment, or the delivery of
relief of Contractor's
any relevant particulars, shall not relieve the Contractor of responsibilities any of his duties or responsibilities under the Contract. 5.7 5.7.1
Progress of the Works lf the rate of progress of the Works, or any part thereof, has
fallen
behind
the
approved
programme,
the
Employer's Employe r's Agent may notify the Contractor in writing, with specific reference to this Clause lf there is no approved programme the Employer's Agent shall make his own assessment
of
the
progress
before
notifying
the
Contractor. The Cntractor shall thereupon take the necessary steps to expedite progress to complete the
24
Rate of progress
Works, or the said part thereof, by the Due Completion Date. Such steps shall be subject to the approval of the Emplyer's
Agent,
which
approval
shall
not
be
unreasonably withheld The Employer's Agent may instruct the Contractor to submit an adjusted programme to accommodate the steps agreed upon to meet the Due Completion Date. No instruction by the Employer's Agent to the Contractor to improve his rate of progress in this regard will qualify for additional compensation. 72
In respect of any action arising from Clause 5.7.1, if the Night work work is not being carried out by day and by night and the Contractor requests permission to work by night as well as by day then, if the Employer's Agent grants permission, the Contractor shall not be entitled to any additional payment for night work and all such work shall be carried out without excessive noise and disturbance In such an event the proven additional attendance cost incurred by the Employer's Agent or the Employer in acceding to the Contractors request, shall be deducted by the Employer's Agent from the Contract Price The Contractor indemnifies the Employer against any liability resulting from noise, or other disturb disturbance ance created, if the work is carried out at night.
73
The Employer's A Agent gent may request the Contractor to Acceleration submit, or the Contractor may submit to the Employer's Agent, a revised programme and cost, determined in accordance with Clause 64, for accelerating the rate of progress to achieve Practical Completion before the Due Completion Date lf accepted by the Employer, the Due Completion Date shall be adjusted accordingly and the cditions for payment of cost shall be agreed in writing by the Employer's Agent.
25
5.8
Non-working times None of the Works shall be carried out between sunset
5.81
Non-working tim
and sunrise and on the non-working and special non working days stated in the Contract Data unless: 58.1.1
The
Employer's
Agents
written
permission
is
obtained, subject to such conditions as may be laid down by the Employer's Agent, 5.81.2
Provision is specifically made for such work in the Contract,
5813
lt is customary to carry out the work concerned by multiple shifts, or
5.8.14
Work is unavoidable or necessary to save life or property,, or for the safety of the Works property
58.2
Written notice, with supporting particulars, shall be given
Notice fr work durin
to the Employer's Agent whenever the Contractor
non-working times
proposes to carry out any work during non-working times.
5.9 5.91
lnstructions On the Commencement Commencement Date, the Employer's Agent shall
Drawings and
deliver to the Contractor copies of the drawings and any
instructions
instructions required for the commencement of the Works 5.92
The Employer's Employer's Agent shall deliver to the Contractor Contractor from
Further drawings and
time to time, during the progress of the Works, drawings
instructions
for construction purposes, or instructions as shall be necessary for the proper and adequate construction, completion and defect correction of the Works. 593
The Contractor shall give adequate written notice to the
Contractor to give
Employer's Agent of any requirements additional to that
notice timeously
contained in the Scope of Work or drawings, which the Contractor may require for carrying out the Works and the
26
Employer's Agent shall deliver such instructions and/or drawings to the Contractor. The aforesaid instructions and/or drawings referred to in Documents to be lause 5.9.3 shall be delivered in good tie taking the
provided timeously
approved prograe into account he Contractor shall give eect to and be bound by any
Contractorr to give Contracto
drawing or instruction given in ters of this Clause and, if
eect to drawings etc
such drawing or instruction shall require any variation of, addition to, or oission fro the Wrks, Clause 63 shall apply lf y reason of a failure by the ployer's Agent, after his
Employer's Agent's
receipt of written notice fro the Contractor in ters of
failure to comply
lause lau se 59.3, to coply in good tie with the provisions of timeously lause 5.9.4, the Contractor suers delay to Practical opletion and/or incurs proven additional cost, he shall �
e entitled to ake a clai in accordance with Clause 10., for which purpose the tie liit of 28 days in Clause 0.. shall coence to run only fro the tie when te said instructions and/or drawings have actually been delivered l the Contract expressly provides for the preparation by
Employer's Agent to
e ontractor of designs and details of any work to be approve Contractor's upplied, he shall, taking account of the approved rogramme, in good tie subit for approval by the mployer's Agent, drawings giving full details, diensions and particulars, together with all relevant inforation and eecting or operating instructions (if any) and shall obtain e ployer's Agents written approval, in accordance it the said prograe, efore coencing the work. Once any such drawing has been approved by the mployer's Agent, it shall not be departed fro in any way eept with the written consent of the ployer's Agent.
27
designs and drawings
5.10 Delays attributable to the the Employer Employer 5.101 The Contractor may, in writing to the Employer's Agent,
Delays attributable to
demand compliance within a stated time by the Employer the Employer with the terms of the Contract which terms shall be specified in such demand. lf the Contractor suers delay to Practical Completion and/or incurs proven additional cost from failure or delay on the part of the Employer his agents employees or other contractors (not employed by the Contractor) in fulfilling any necessary obligations in order to enable the Works to proceed in accordance with the Contract, the Contractor shall be entitled to mak claim in accordance with Clause 10.1 fr which purpose the time limit of 28 days provided in Clause 10.1.11 shall commence to run only from the time when compliance with the said terms has actually taken place 5.11 Suspension of the Works 5.11.1 The Contractor may, after giving fourteen (14) days
Suspension of the
written notice to the Employer, with a copy to the Works by Contractor Employer's Agent, (with specific reference to this Clause) suspend the progress of the Works where the Employer's Agent or the Employer has failed in terms of Clause 6.10.4 to: 511.11
Deliver a payment certificate, or
51112
Make full - payment of the amount certified in the payment certificate without prejudice to the Contractor's other rights under this Contract or by law
5.112 The Contractor Contractor shall on the written order of the
Suspension of the
Employers Agent stating the cause for suspension
Works by Employer's
suspend the progress of the Works or any part thereof
Agent
for such time or times and in such manner as the Employers Agent shall order.
28
5.113 During the suspension, the Contractor shall properly Protection of the
Works during
protect the Works as far as is necessary
suspension 11.4 Unless such suspension or o r alteration is otherwise Claim as a provided for in the Contract, or by reason of some default
consequence of
or breach of the Contract by the Contractor, the Contractor shall in respect of delay to Practical
suspension
Completion and/or to proven additional cost as a result of the suspension, be entitled to make a claim in accordance with Clause 101 .11. lf the progress of the Works is suspended in terms of Clause 111 and full payment is received of the amount
Proceeding with the Works aer payment
certified in the payment certificate, the Contractor shall proceed with the Works within seven days of receiving such full payment lf such payment is not received within 84 days following the Employer's receipt of the written notice of suspension, the
Contractor
may
treat
the
non-payment
as
a
repudiation of the Contract, in which case Clause 93 shall apply .16 lf the progress of the Works, or any part thereof, is
Suspension lasting
suspended in terms of Clause .112 for more than 84
more than 84 days
days in total, the Contractor may deliver a written notice to the Employers Agent requiring permission to proceed with the Works, or that part thereof in respect of which progress is suspended lf such permission is not granted within 28 days after the Employer's Agents receipt of the written notice, the Contractor may, by a further written notice to the Employer, elect to treat the suspension, where it afects only part of the Works, as an omission of such part under Clause 63 or, where it aects the whole Works, as a
29
repudiation of the Contract by the Employer, in which case Clause 9.3 shall apply
5.12 Extension of time fr Practical Completion Completion 5121 lf the Contractor considers himself entitled to an extension
Eension of time r
of time for circumstances of any kind whatsoever which
Practical Completion
may occur that will actually extend Practical Completion of the Wrks beyond the Due Completion Date, the Contractor shall claim in accordance with Clause 101 such extension of time as is appropriate Such extension of time shall take into account any special non-working days and all relevant circumstances, including concurrent delays or savings of time which might apply in respect of such claim. 5122 Without limiting the generality of Clause 5121, the
Some reasons for eension of time
circumstances referred to in that Clause include: 512.21
The amount and nature of additional work,
5.1222
Abnormal climatic conditions,
512.23
Any provision of these Conditions which allows for an extension of time, and
5.1224
Any
disruption
which
is
entirely
beyond
the
Contractor's control 512.3 lf an extension of time is granted, the Contractor shall be
Relevant adjustments
paid such additional time-related General ltems, including to General ltems for special non-working days, if applicable, as are appropriate regarding any other compensation which may already
have
been
granted
in
respect
of
the
circumstances concerned 5124 lnstead of granting extension of time, if feasible, the Employers Agent may request the Contractor to accelerate the rate of progress to achieve Practical
30
Acceleration instead of ension of time
Completion without extension of time and determine the cost for payment of such acceleration in accordance with Clause 64.
5.13 Penalty Penalty r delay 513.1 lf the Contractor fails to complete complete the Works to the extent Penalty r delay which entitles him to receive a Certificate of Practical Completion in terms of Clause 142 by the Due Completion Date, the Contractor shall be liable to the Employer for the sum stated in the Contract Data as a penalty for every day that elapses between the Due Completion Date and the actual date of Practical Completion, including special non-working days. The imposition of such penalty shall not relieve the Contractor from his obligation to complete the Works, or from any of his obligations and liabilities under the Contract 5.13.2 lf before the issue of the Certificate of Practical
Reduction of penalty
Completion of the whole of the Works any part of the Works has been: 13.21
Certified by the Em Employer's ployer's Agent as complete in terms of a Certificate of Practical Completion, or
.132.2
Occupied Occupie d or used by the Employer Employer his agents employees or other contractors (not employed by the Contractor),
the penalty for delay shall be reduced by an amount which is determined by the Employers Agent to be appropriate in the circumstances
.4 Completion The Contractor shall be entitled to receive a Certificate of Practial Completion when the Works have been
31
Practical ompletion
r g qu im tn t t m l p . ml o n s o u n o nr C p Wr k s r
n
W
Cnr r s a ,
Pr c l
C
n
o a c o u
w
d l o a n
m
h
b
,
u e e
ng
,
p
l
y r'
At
,
p , a f r v i s u ch q us y u s i a w n o r C n S o . j cm l e d ut y p , u a n n m n r o su l o n s a ke n C o n a P c l p n s m l i n a ; r , Du p p ., o n x o . C l a u s e of p w t n 14
a
n r o e s o u
l t
or s C mle t o i t p o l o n t D u b e p nsid a i sha b
a l
l a c
a , l
do n
n
n
n
D e . 5.14.2
a
c t C e
cm l p
u s 3 Up
5.14. .1 3
5.14 3
n t
t
a
e o u or t
r c o
s r n
5.14.
lsue of Cica t
r e i i s s a r , E s b f C la la u s 5. .1 a s e n l c y l r n o nr t E r sha v
i
Pr mpn
in.
s u
f h
c e
que
n:
mpl
T
o rk a b e n s
h
ur o o f a u s . . , a n p Th
m l o r a
i a p a ce s s c m h p Cn
t
Wr k ,
n
h
r k i
i
m
f n
h
5.144 As soon as the work referred referred to in the further list issued in Cerificate of terms of Clause 2 has been duly completed, the
Completion
Employer's gent shall deliver to the Conractor and the Employer a Certificate of Completion; provided provid ed that the Employer's gent shall be empowered to issue such certificate leaving any work and/or the rectifying of defects, and/or the clearing of the Site as specified therein, to be completed by a date stated in the certificate and the Contractor shall be obliged to complete the work specified by that date Should the Contractor fail to complete the work by the specified date, the Defects Liability Period (if any) shall be extended by the amount of the additional time taken by the Contractor to complete the work specified, and the terms of Clause 7 .83 shall apply with w ith the necessary changes .. Upon the issue of a Certificate of Completion, unless otherwise other wise provided in the Contract: Contract :
Consequences of completion
The performance guarantee, (if any), shall be returned within days to the Guarantor, The Defects Liability Period, if any, shall commence, The retention shall be reduced to half in terms of Clause 6.0, The possession of the Site shall revert to the Employer, and lnsurance of the Works in terms of Clause 86 shall cease . Employer ne need ed not occupy the Works before before the Due Occupation by the opletion Date. lf the Employer takes occupation of the rks before the Due Completion Date, the date of such
33
Employer
occupation shall be considered the Due Completion Date, unless occupation is due to the Contractor's method of work. 5.14.7 lf,
in
terms
of
the
Contract
Data
stated
for
Clause 1.1.1.14, dierent dates of Practical Completion
Diferent dates of Practical Completion
are specified in respect of dierent portions of the Works, the aforesaid provisions shall apply with the necessary adjustments in respect of each of such portions
5.15 Clearance of Site 515.1 On completion of the Works the Contractor shall clear
Clearance of Site on
away and remove from the Site all Construction completion Equipment, surplus materials, rubbish and Temporary Works of every kind and leave the whole of the Site and the Works clean and in a safe condition. All streams and watercourses shall be cleaned and restored to the condition as at the commencement of the Works.
5.16 Approval 5.161 The Works shall not be considered as completed in all
Final Approval
respects until a Final Approval Certificate has been Cerificate delivered by the Employers Agent to the Employer and the Contractor stating the date on which the Works were completed and defects corrected, all in accordance with the Contract. Such Final Approval Certificate shall be delivered by the Employers Agent as soon as practicable after the completion of the whole of the Works, or of the expiration of the Defects Liability Period, if such a period is prescribed, or as soon thereafter as any works ordered during such period pursuant to Clauses 5.14.4 7.7 and 78 shall have been completed in accordance with the Contract. Full eect shall be given to this Clause, notwithstanding any previous entry on the Permanent
34
Works or the taking pssessin f, working in or using theref, r any part theref, by the Emplyer; provided that the issue f the Final Apprval Certificate shall not be a cnditin precedent t the payment t the ontractr f the secnd half f the retentin mney in ccordance ccorda nce with Clauses 6.10.5.1 and 6.10.5.2. . No certificate ther than the Final Apprval Certificate Apprval only by Final referred t in Clause 5.16.1 shall cnstitute apprval f Approval Certificate the Works, r shall be taken as an admissin f the due erfrmance erfrma nce f th thee Cntr t r any part theref theref,, nr shall ny other certificate exclude r prejudice any f the oers of the Emplyer's Agent. .3 The Contractrs liability ffr r an anyy latent defects shall Latent defects liability continue beynd the date f the Final Apprval Cerificate ut the Emplyer shall have no claim against the ontractor arising ut f any latent defect which first nifests itself later than the perid, stated in the Cntract Dta, fter the issue f the Final Apprval Certificte in ers of this Clause
35
6. PAY PAYME MENT NT AND R RELA ELATED TED MA MATTE TTERS RS
6.1 6.11
Payment to Contractor Contr As consideration consideration fr the construction, construction, completion and Payment to Contr defect correction of the Works, the Employer shall pay the Contractor in terms of the provisions of the Contract
62 6.21
Security The Contractor Contractor shall deliver to the the Employer's Agent, as
Delivery of securi securi
part of the documentation required before commencing with the Works in accordance with Clause 531, at his cost, the type of security for the due performance of the Contract, as selected in the Contract Data 6.22
lf the Contractor fails to select the security security to to be provided,
Contractor failing t
or if the Contractor fails to provide the selected security
select or provide
within the time period stated in Clause 53.2, or if the
security
performance guarantee shall dier substantially from the pro forma, it shall legally be deemed that the Contractor has selected a security of ten per cent retention of the value of the Works without limiting the Employer's right to terminate the Contract in terms of Clause 92. 6.23
lf the Contractor has selected a performance guarantee
Validity of perorman
as security, he shall ensure that it remains valid and guarantee enfrceable until the Certfcate of Completion is issued The performance guarantee shall specify an expiry date, and if the Contractor has not become entitled to receive the Certificate of Completion of the Works by the date 28 days prior to the expiry date, the Contractor shall extend the validity of the performance guarantee until such time that the Works have been completed
36
time before the issue of the Certificate of Variations pletion, the Emloyer's Agent shall require any i of the form, quality or quantity of the Works, or pt tereof that may be necessary, or for any reason piat, he shall have ower to order the Contractor a of of the the following: lease or decrease the quantity of any work iled in the Contract, 0i any such work, rovided it is not to be carried someone ese, age the character or quality of any such work, ae the levels, lines, osition and dimensions of art of the Works, out additional work of any kind necessary for letion letion of the Works, and age the secified or aroved sequence or tod of construction. ariation shall in any way vitiate or invalidate the , but the value, if any, of all such variations shall into account in ascertaining the amount of the
variation shall be made by the Contractor a written order by the Emloyer's Aent in which it tbe a "Variation Order";
l te Contractor, as soon as ossible, but within en days after receiving an oral order, or a written e which he contends to be a Variation Order,
37
Orders fr variations to be in writing
' A mpl ye s n E
a
t
o
fr s in w n o t h c n
in
h
ti
f r
a Vr a ton O r, an d u c n ma n l
e
n
n c ta d d in w t n, y t h E p y' s A o
re , rece p s onr wi in s n a f O iw a l gay b d m t b a V ar a on r i
o
t
f
e
il i th
d e
nng of t is la u s. l on c r C i m t r
o
i s t c nfr suc o rd r wh n seve n a y V
e
i o , r
s
p
d o r s uh uh
l
o n t b
a
a
i a r
O de
ti
on
r
.
f
ti
rk
oN n ca s or d ca s in t qu a a y w , t
33 6. .
Chan ges i qutes
-m u e m t u a n i r a R ou n i f Q B o t , re s u incea o r rea is n C
res u aV ra on Or r g iv n n dr is a u s
s
u a xce g, or g s n sl t h q t h , a a vr a o o s t ed in t h B l f Qu a nii s r in wi g s o o n d a c a a u s p pi w h is
h
l
n
a
requied t refr. 6
Vl f v r
v lu f a V r a on Od e r sha be c c a by . 6 1 T ' f n corda
l
t
d
Va lu luti o n f vr r s
h
ne w t
t h Employ s A n in a pr n pl :
.. 6 1 1
wrk is f a simila r ar r an W
g
cr
u t
d r
un dr ima r n dtos t w k pr ce n h P ng
r t s a n/ r , i sa b vlu d a s uh e D a n n n n r e m s d n n t e l l (i i G
o
b ap picbl ;
.1 6
s
no
cr i d ou u n dr simar c n on s t r /r i
r e n t r P o r v u a n a s
c rea W ar sing
h
d
u s a t prpr a ;
ng a a s a D a a a
h
si
p
n
6 .1.3
c
o a r a r r or i e wr is n f a simil
oa v u i n b . 22 , lu . .1 bory 4 nwe rw t ch nla nu sse6a m a xp n dure, n in ,
c
u
g
necessary for carryig out the work shall be determie aftr u cosultatio by the Employer's Agent with the Employr a the Cotractor; or I respect of aitioal or substitute work, th ployers get may issue a istructio that th ork shall b carri out o a aywork basis i trms lause 6.5. T ployr's get shall, withi 28 ays after issuig Delivering and applying Variation Orer, or such other perio as may be the valuation ee betwee th partis, i writig, elivr to th actor a th Employer, i writig, the valuatio of ariation Orer a apply this valuatio i certifyig ts payable to the Cotractor, without prejuice to tractor's right to raise a issatisfactio i terms of
e mployers gets valuatio is ot receive by the Delay in delivering aor withi the tim rferre to in Claus 642 the valuation ar may rspc
of
he /ay o Pracca/
lin aor to prove aoal cos
of
gvg
te ariatio Orr, be etile to make a claim ace with Clause 10.1.
i be carrie out o a aywork basis:
Basis of payment fr dayworks
tractor shall b pai for such work uer the isions st out i the aywork scheule iclue i iing Data a at th rates aor prices state
asc of a aywork scheul, an for items ilue in th aywork schule, the Cotractor ll pai the aggregate of
39
6.51.2.1
The gross remuneration of the workmen, and of any foremen, or the time they are actually engaged in the work concerned,
6.5.12.2
The net cost of the materials actually used in the completed work,
6.5.1.2.3
The percentage allowances, stated in the Contract Data, in respect of the said remuneration of workmen and the cost of materials, which allowances shall be held to cover all charges for the
Contractor's
timekeeping,
and clerical
subcontractors work,
profits,
insurance,
establishment, superintendence and the use of hand tools, and 6.5.1.2.4
An amount in respect of Construction Equipment calculated as provided for in Clause 65.1.3.
6.51.3
The use of Construction Equipment shall be charged on a time basis at the rates stated in the Pricing Data, failing which at rates to be agreed between the Contractor and the Employers Agent or, failing agreement, to be determined by the Employers Agent on the basis of ruling Construction Equipment hire rates
6.5.2
lf required by the Employers Employers Agent, the Contractor shall,
Quotations
before ordering material, submit to the Employers Agent materials quotations for the same for his approval, which appoval shall not be unreasonably withheld, and shall submit to him such receipts or other vouchers as proof for the amounts paid. 6.5.3
The Contractor Contractor shall, during the continuance of all work work carried out on a daywork basis, deliver each day to the Employers Agent, or the Employers Agents Representative, a list of the exact occupation and time of all workmen and foremen employed on such work and a
Details
40
staemn howing h dcripion nd quniy of ll ail nd Conrucion Equipn ud hrfor ool h co of which i covrd by h ddiion in ccordnc wih h dywork ul in r of which pyn for dywork i a). lf corrc nd grd upon by h Eployr' Aet or h Eployr' gn Rprniv, nd h cor, h Eployr' gn or h Eployr' en Rprniv hll ign h copi of ch li n nd rurn uch copi o h Conrcor ii on on working dy of crrying ou h work purpo of ch onhly crific rfrrd o in
Dayorks statement
Conrcor hll dlivr o h pricd n of h lbour, ail nd Conrucion Equipn ud (xcp id in Clu 653) nd h Conrcor hll no b ild ild o ny pyn for h dywork dyw ork concrnd unl unl a il uch n n h bn proprly rndrd nd sord by on copy of ch of h ignd li nd sn rfrrd o in Clu 65.3 ·viial sums and prime cost sums
l a proviionl u i ou in h Pricing D nd te ork o which h proviionl u rl h bn ed e d by h Eployr' gn nd i: rid ou by h Conrcor, i hll b vlud nd id for in ccordnc wih h r of Clu 64, rrid ou by ubconrcor ppoind in r of lu 444, h Conrcor hll b pid h u, or pid, or du o b pid by hi o h bconr bc onrcor, cor, plu p lu ihr: i hr: coiion on h u, or u pid, or du o b pid o h ubconrcor by h Conrcor or
41
Proisional sums
the Employer, at the percentage stated by the Contractor in his Pricing Data or failing such statement at 7.5 per cent or 6.61.2.2
lf the Contractor in the Pricing Data has added to the provisional sum concerned a sum in respect of charges and profits, a pro rata amount of such sum, added in the proportion that the amount paid to the subcontractor by the Contractor or the Employer bears to the provisional sum.
6.62
Where a prime cost sum is provided in the Pricing Data to
Prime cost sums
cover the cost price of certain goods, services or materials to be supplied under the Contract, the amount to be paid therefor to the Contractor shall be the actual price payable by him in substitution for the prime cost sum together with any charge included by the Contractor in the Pricing Data to allow for labour profit, carriage storage, establishment and other costs related to such goods services or materials. 6.6.3
Expenditure in connection with provisional and prime cost
Provisional/prime cost
sums and under the contingency allowance (if any) shall
sums and contingency
be solely at the discretion and on the instruction of the
allowance
Employer's Agent Any parts of the amounts provided in the Pricing Data which are not expended shall not be included in the Contract Price. 6.64
The Contractor Contractor shall produce all invoices, vouchers and
Supporting documents
receipts in respect of payments made by him in connection with provisional or prime cost items when he requires payment for these items.
6. 7 6.71
Measurement of the Works The quantities set out in the Bill of Quantities for a Quantities Re-measurement Contract are the estimated quantities of the work and they are not to be taken as the actual and
42
final quantities of the Works to be carried out by the Contractor in fulfilment of his obligations under the Contract The Employer's Agent shall ascertain and determine the Work to be measured value of the Works but, when required to do so by the Employer's gent, the Contractor shall measure the work carried out during each month and the materials on Site and shall deliver to the Employer's gent a supporing statement with his monthly statement in terms of Clause 610.1, showing the said measurements and the relevant amounts paid, or payable by him for such materials, and all other particulars particulars required by the Employer's gent gent The Employer's gent shall, when he wishes to make any
Employer's Agent's
easurement on the Site, or requires any pars of the
intention to measure
Works to be measured in his presence, give notice of this fact and of the date and time at which he will be present to the Contractor who shall: ttend or send a qualified agent to assist the Employer's gent in making such measurement, or to make such measurement in the presence of the Employer's Employer 's gent, and Furnish all particulars required by the Employer's gent lf the Contractor, despite being required to do so, fails
Contractor's failure to comply
To submit a supporting statement in terms of Clause 672, or To attend or send his agent when given such notice in terms of Clause 673, the measurement made by the Employer's gent, or approved by him, shall be taken to be the correct easurement of the work for the purpose of the payment
43
certificate in respect of which the measurement has been made. 67.5
6.8 6.81
All the work shall be measured in accordance with the
Method of
provisions of the Pricing Data
measurement
Adjustment in rates and/or prices Except as provided in this Clause, or elsewhere in the
Rates and prices final
Contract, the rates and/or prices stated in the Pricing
and binding
Data shall be final and binding throughout the period of the Contract 6.82
lf the Contract Contract Data provides for the application of a Application of the Contract Price Adjustment Factor, the value of certificates
Contract Price
issued in terms of Clause 6.10.1 (excluding the value of
Adustment Factor
those special materials referred to in Clause 6.8.3) shall be increased or decreased by applying a "Contract Price Adjustment Factor" calculated according to the formula and the conditions set out in the Contract Price Adjustment Schedule. 6.83
lf price adjustment for variations in the cost of special
Variation in cost of
materials is provided for in the Contract Data, it shall be
special materials
made in the manner set out in the Contract Price Adjustment Schedule. 684
lf at any time within 28 days before the closing date for
Subsequent changes in
tenders or thereafter, any Act of Parliament, Ordinance,
legislation
Regulation or By-law of any local or other statutory authority is amended and this results in additional, or reduced reduce d cost cost to the Contractor in respect of carrying out the Contract (other than in terms of Clauses 6.8.2 and 6.8.3), such additional or reduced cost shall, after due consultation between the Employer and the Contractor, be determined by the Employer's Agent and shall be added to or deducted from the Contract Price and the Employers Agent shall notify the Contractor accordingly,
44
with a copy to the Employer Vesting-of Plant and materials
.91
sting of Plant and
All Plant and materials:
matrials
Brought on to the Site by or on behalf of the Contractor, or Fabricated, or stored at places other than the Site, and agreed, in writing, by the Employer and the Contractor to be governed by this Clause, shall, immediately on delivery to the Site or, in the case of Plant and materials not on the Site, immediately on the conclusion of the said written agreement, legally be deemed to have become the Employer's property and to have been delivered to the Contractor to be held by him on behalf behal f of the Employer The expression "materials include
all
"
construction
used in this Clause shall materials,
Definition of "matrials"
commodities,
substances, fixtures, equipment and appliances all of which whi ch are to be b e incorporated in the Works The Contractor shall hold, or cause to be held, on behalf
ldntification of Plant
of the Employer as owner, and be responsible for the care
and matrials
of all the Plant and materials referred to in Clause 6 and shall, in the case of Plant and materials referred to in Clause 62, take such steps as the Employers Agent shall order to identify the Plant and materials as being the property of the Employer The Contractor shall not remove from the Site any such
Prohibition on removal
Plant and materials which are on the Site, or which are
of Plant and matrials
brought there from such place of fabrication or storage, and shall use all such Plant and materials exclusively for iorporation in the Permanent Works
45
6.9.5
The operation of this Clause shall not imply any approval No approval by vesting by the Employer's Agent of Plant and materials, nor shall it prevent the rejection of any such Plant and materials at any time by the Employer's Agent.
6.10 Payments 6.10.1 With regard to all amounts that become due to the Contractor in respect of the matters set out in Clauses 6.10.1.1, 6.10.1.2, 6.10.1.3, 6.10.1.4, and 6.10.1.5 below, he shall deliver to the Employer's Agent a monthly statement for payment of all amounts he considers to be due to him (in such form and on such date as may be agreed between the Contractor and the Employer's Agent, or failing agreement, as the Employer's Agent may require) and the Employer's Agent shall, by signed payment certificates issued to the Employer and the Contractor, certify the amount he considers to be due to the Contractor, taking taki ng into account the following: following: 6.10.1.1
The estimated value of the Permanent Works carried out and calculated in terms of the Contract up to the date of the Contractors said statement;
6.10.1.2
The amount for any Temporary Works, or other special items fr which separate amounts are provided in the Pricing Data;
6.101.3
Any other additional amounts which are due to the Contractor or the Employer;
6.10.1.4
Adjustment under Clause 6.8;
6.10.1.5
The value up to the percentage limit stated in the Contract Data of Plant and materials referred to in Clause 6.9.1 not yet supplied to Site or not yet built into the Permanent Works; provided
that
the
Contractor
46
has
produced
Interim payments
documentary evidence of ownership of such Plant and/or materials and has delivered to the Employer an indemnity, approved in writing by the Employer, against any claim to or in respect of such Plant and/or materials by reason of the Contractor's sequestration or liquidation, or of any defect in the Contractor's title to the Plant and/or materials. 6.10.1
A deduction of the amount of all previous payment certificates;
6.10.1. 7
A deduction for penalties imposed in terms of Clause 5.13 and
6.10.18
Any sales tax or value added tax which the law requires the Employer to pay to the Contractor.
6.10.2 The Contractor shall deliver with his statement, pursuant to Clause 1.15, copies of invoices or receipts in respect of the purchase and delivery of the materials for which the Contractor claims payment. The valuation of such materials shall be based on the purchase price and delivery cost reflected by the relevant invoices or receipts, exclusive of discounts to the Contractor and inclusive of any sales tax or value added tax which the law requires the Employer to pay to the Contractor, and duties payable on such materials by the Contractor; provided that, if the materials have been produced by the Contractor himself, or if the valuation of such materials is not consistent with the relevant rates and/or prices set out in the Pricing Data, the Employers Agent shall have the right to base the valuation and payment for such materials either on rates and/or prices consistent with the rates and/or prices set out in the Pricing Data, or on current market prices.
47
Valuation of material brought onto Site
6.10.3 Payment of the amounts amounts referred to in Clauses 6.10.1.1,
Retentio money
6.10.1.2, 6.10.1.3, and 6.10.1.4 shall be subject to a retention by the Employer of an amount (called the "retention money), being the percentage retention, of the selected security stated in the Contract Data, of the said amounts due to the Contractor, until the retention money reaches the Limit of retention money stated in the Contract Data. 6.10.4 The Employer's Employer' s Agent Agent shall deliver to the Employer and
Delivery, dissatisfacti
the Contractor the payment certificate referred to in
with and payment of
Clause 6.10.1 within 7 days of the receipt by the
payment certificate
Employer's Agent of the Contractors said statement. Any dissatisfaction in respect of such payment certificate shall be dealt with in terms of Clause 10.2. The Employer shall pay the amount due to the Contractor within 28 days of receipt by the Employer of the payment certificate signed by the Employer's Agent. Payment shall be subject to the Contractor submitting a tax invoice, if required by law, to the Employer or the amount due. 6.10.5 When a Defects Liability Period is specified, one half of the retention money shall become due and shall be paid to the Contractor when the Employer's Agent has issued a Certificate of Completion in terms of Clause 5.14.4. The other half shall become due and shall be paid to the Contractor within 14 days of the expiration of the Defects Liability Period, which may be extended in terms of Clauses 5.14.4 or 7.8.1, if necessary; necessary; provided that: 6.10.5.1
lf the Defects Liability Period is extended in terms of Clauses 5.14.4 or 7.8.1 or if at the expiration of the original Defects Liability Period, any works ordered during such period in terms of Clauses 7.7.and 7.8. still remains to be carried out by the Contractor, the
Payment of retention money
48
Employer shall be entitled to withhold payment until the completion of the work concerned, of so much of the second half of the retention money as shall represe rep resent nt the cost cos t of such work; In the event of dierent Defects Liability Periods having become applicable to different parts of the Wrks pursuant to Clause 5.14, the expression "retention money shall mean such proportion of the total retention money as is applicable to each completed ompleted part of the th e rks and l a Defects Liability Period is not specified, the whole amount of the retention money shall become due and shall be paid to the Contractor when the Contractor has become entitled, in terms of Clause 5.16.1, to eceive a Final Approval Certificate. I espect of any amount payable to the Contractor in
Set-of and delayed
s of the Contract:
payments
The mployer may deduct from such payment any amount to which he is entitled in terms of this ontract, or by law to set o against such payment, and shall state, in a written notice to the Contractor, te reasons for such deductions, and In the event of failure by the mployer to make the ayment by the due date, he shall pay to the ontractor interest, at the prime overdraft rate charged by the Contractor's Bank, compounded onthly, on all overdue payments from the date on hich hic h the same should have been paid to the date hen he n payment is eected, without prejudice to the ontractors other rights under this Contract or by la.
49
6.107 The Employer's Agent may by any payment certificate make any correction or modification of any previous
Corrections to payment certificates
payment certificate, which has been issued by him 6108 Within 14 days of the date of the Certificate of
Contractor's Contract or's completio
Completion, the Contractor shall deliver to the Employer's statement Agent a completion statement showing the value of work done in respect of which a Certificate of Completion has been issued and shall supply such further information as the Employers Agent may reasonably require. The Contractor shall not be entitled to any payment in respect of any matter which has not been included in such completion statement save as provided for in Clauses 514, 77 and 7.8 in respect of work carried out during the Defects Liability Period and/or Clauses 10.3 to 1011 in respect of any dispute The Employer's Agent shall deliver to the Employer and the Contractor the payment certificate in respect of the completion referred to above within 14 days of the receipt by the Employer's Agent of the Contractors said statement, and the Employer shall pay the amount due to the Contractor within 28 days after receipt by the Employer of the payment certificate signed by the Employer's Agent 6.109 Within 14 days of the date of final approval approval as stated in Final Payment the Final Approval Certificate, the Contractor shall deliver to the Employer's Agent a final statement claiming final settlement of all moneys due to him (save in respect of matters in dispute, in terms of Clauses 10.3 to 10.11 and not yet resolved) The Employer's Agent shall within 14 days issue to the Employer and the Contractor a Final Payment Certificate, the amount of which shall be paid to the Contractor within 28 days of the date of such certificate, after which no further payments shall be due to the Contractor (save in respect of matters in dispute, in terms of Clauses 103 to 10.11 and not yet resolved)
Certificate
50
1 Variations exceeding 5 per cent
lf, at te time of the preparation of the payment certificate
ritions exceeding exceeding
fllowing the issue of the Certificate or Certiicates of
5 per cent
pletion for the hole o the Works it is found that the aggregate of: All the variations made by the Employer's Agent in terms terms of Clause Clau se 6.3, All additional payments allowed by the Employer's Agentt in terms of Clause 101 and Agen The adjustment upon measurement of the estimated quantities set out in the Bill of Quantities for a Re-measurement Re-measurem ent Contract, esults in an increase or decrease in the Contract Price, eterined et erined before adjustment in terms of this Clause, reater than 15 per cent of the prices provided for in the ntract Sum, excluding any alloance for contingencies terein and excluding from both Contract Price and ntract Sum, all payments or alloances for: Variations in price in terms of Clause 6.8, rovisional sums and prime cost items, and Daywork ten the General ltems shall be adjusted by such sums (if ay) as may be agreed between the Contractor and the ployers plo yers Agent Agent or failing agreement determined by the ployer's Agent with due regard to all relevant factors afected by such increase or decrease including any ajus aj ustmen tments ts to the t he General ltems already al ready made
51
D L E D S Q 7 U A N R f u o u pm Q 71 t . . au er an d ua o f o n sr co n 1 1 pTr v d t h Cnt ar f r cr i o u i t t god o f d es f t o r s s a s o r sponds w t t h equire m ns an c rk n d h o n s r o q pm n s n d Ww i n o r r an d , n c r, we r o r w c i is t u s . n pu o vd an d an i n u i n o n rc o n m a t h e uire mn an , w n o r Emp ol y r's n, t h Cn or s a re o n , a an o s Esiui apm u n sui b o u d , w km p n m 7 2 Q f ln d, a .2.1 A Plant t b suppi d a ma wrm a si p a b c r ou an a l a b f t h es v ns s p n n d s ha mpl w t h h u re m n s i n h p f r an d n h W e m n or n r io n s n , wr nd requir m a ra l s f t h es pv n s s a s f pu r o s nen d d r k 7 3 W 1 T ml o r t h m oy s g n an o au tr s by i r f m s a , i n w i r, a a c s s t h ors an o i a w ko p s n d la cs wh e wr s i , o r w e Plant, ma ar s, m au a u l n d ma u a u er or o f th m arkcin t anper , ni xg a mn an ss u c ials W an d m a s i p n d res s n n i
t
i
u p
men
d
h
k
c
o
r
s
s oer's A g n
f
s
n Fai . Fai g
ion ci n srt uc
y
E p m l
b
q
a
l
g
s
the
programme.
The
Contractor
shall
aford
any
ecessary facility for and assistance in obtaining the right to such access.
Samples nd testing he Contractor shall, as set out in the Scope of Work, or
ples of terils
s instructed by the Employer's Agent, provide at his own expense samples of materials intended to be incorporated ito the Works he Contractor shall, as set out in the Scope of Work, or Test speciens fro s instructed by the Employers Agent, take and deliver to the Works the Employers Agent test specimens from portions of the orks already constructed, and make good any resultant age to the Works. he Contractor shall, in accordance with the Scope of
Tests
ork, or if instructed by the Employers Agent, carry out tsts on Plant and samples of materials intended to be icorporated into the Works and on any test specimens fo portions portions of the Works, and shall carry out any other tests specified in the Scope of Works he Contractor shall provide all necessary assistance, lour, materials, electricity, fuel, testing equipment and istruments for the purpose of such tests to be performed him or, if so specified i the Scope of Work, or istructed by the Employer's Agent, for the purposes of test tests s to to be performed by others. e following provisions shall apply in respect of the cost Cost of test speciens the Contractors services in terms of Clauses 7.4.2 and nd tests 7.4.3:
lt shall be taken that the Contractor has allowed in his rates and/or prices for all such services as are required requir ed to be rendered by him, provided that the tests have been particularised in the Scope of Work in
53
suicient detail r him to allow for them, and 7.44.2
The Contractor shall be paid the cost of any services not covered by Clause 7.4.4.1; provided that, if any test establishes that the Plant, workmanship or the materials used do not comply with the requirements of the Contract, the Contractor shall not be paid any amount in respect of the services concerned whether or not payment would otherwise have been due in terms of Clauses 7441 or 7442
74.5
The Employer's Agent and the Contractor shall deliver to
Exchange of reps
each other, as and when testing has been carried out,
on tet
accurate and complete copies of all reports on tests carried out by or on behalf of either party, save to the extent that any such reports are prepared specifically for the purpose of proceedings in terms of Clauses 103 to 1011.
7.5 7 5.1
Examination of the Work No part of the Works or excavations shall be covered up
Examination of w
or put out of view without the consent of the Employer's beore covering up Agent, and the Contractor shall aord full opportunity for the Employer's Agent to examine and measure the Works and to inspect the excavations before any Permanent Works are placed thereon. 752
No Plant shall be delivered to Site until such Plant has
Delivery of Plant t
passed testing in accordance with Clause 743 and the
Site
subsequent written authorisation by the Employer's Agent for delivery to Site has been issued. 7.53
The Contractor shall give adequate written notice to the
Notice tobe give
Employers Agent whenever Plant, or any part of the
hen ready r teti
Works, or excavations are ready or almost ready for testing, or inspection, and the Employer's Agent shall visit the site, as soon as practicable, for the purpose of testing
54
such Plant or examining such work or excavations unless he considers it unnecessary and advises the Contractor accordingly in writing (in which event it shall be taken that the consent required in terms of this Clause has been iven); provided
that,
any delay occasioned
by the
said
attendance of the Employer's Agent beyond that provided in the approved programme shall entitle the Contractor to ake a claim in accordance with Clause 10.1 in respect of the delay to Practical Completion and/or to proven additional cost Any delay occasioned by the Employer in the dates of
Delay by Employer to
elivery of Plant beyond that provided in the approved take delivery of Plant programme shall entitle the Contractor to make a claim in accordance with Clause 10.1 in respect of the delay to ractical Completion and/or to proven additional cost The Contractor shall uncover any part or parts of the
Uncovering and
Works, or make openings in or through the same as the making openings ployer's Agent may from time to time order, and reinstate and make good such part or parts in accordance ith the terms of the Contract lf any such part or parts have been covered up or put out of view after compliance ith the requirements of Clauses 751 and 75.3 and are fund to have been carried out in accordance with the ontract, the Contractor shall in respect of the delay to ractical Completion and/or to proven additional cost, be entitled to make a claim in accordance with Clause 101, ut in any other case the cost shall be borne by the ontract ont ractor or and no n o extension of time t ime shall be given fective Plant, materials and work
he Employer's Agent shall, during the progress of the
Making good and
ors, have the power to order, in writing, from time to tie, the making good to comply with the Contract and
retesting of Plant
55
retesting of Plant that failed to pass the tests in accordance with Clause 7.4.3, within such time or times as specified in the order, all at the cost of the Contractor 762
lf, following retesting of Plant, it again fails to meet the
Consequences f
requirements of the Contract the Employer's Agent shall failure of retestig f Plant be entitled to: 7.6.2.1
lnstruct further making good and retesting of such Plant at such time or times as specified in the notice, all at the cost of the Contractor,
7.6.2.2
Subject to the Employer's written consent, accept such Plant subject to a reduction in the Contract Price as provided for in the Contract, or as may be agreed by the Employer and the Contractor, or
7.6.2.3
Reject the Plant if the results of the tests shw that the Plant is not in accordance with the Contract.
763
The Employer's Agent shall, during the progress of the
Removal of imp
Works, have the power to order, in writing, from time to
work and materil
time, within such time or times as specified in the order 7.6.3.1
The removal from the Site of any materials which are not in accordance with the Contract and the substitution of proper and suitable materials therefor, and
7.6.3.2
The
removal
and
proper
reconstruction
(notwithstanding any previous test thereof or interim payment therefor) of any work which, in respect of materials or workmanship, is not in accordance with the Contract. 7.6.4
In case of failure on the part of the Contractor to carry out
Default of the
any of the orders referred to in Clauses 7.61 and 763
Contractorr in Contracto
within the time period stated by the Employer's Agent in
compliance with
such order, the Employer shall be entitled to employ and
Employer's Aet
56
pay other ersons to crry out the sme and ll costs orders onsequent thereon or incidentl thereto, in excess of what ould hve been yble to the Contrctor if the ontractor hd crried out such order, shll be borne by te Contrctor nd shll be recoverble from him by the Eloyer. Sarch for defects
Te Contrctor shll by ritten order from the mloyer's Contrct Contrctor or to serch se rch Agent, serch for the cuse of ny defect lf such defect is for defects ne for hich the Contrctor is not lible under the ontract, the cost of the ork crried out by the ontractor in the serch shll be id to him lf such fect is one fr hich the Contrctor is liable, the cost of work shll be borne by the Contrctor
the intent tht the Permanent Works shll t, or s Mking good of n as rcticble fer the exirtion of the Defcts defects in Defects iaility Period, be in the condition (fir er nd ter Libility Period eted) required by the Contract, the Contractor shll, ig the Defects Libility Period, crry out ll such ai, reconstruction, rectifiction nd mking good of ts, shrinkges, settlements or other faults s may be \red, \re d, in riting, by the mloyer's gent. ll h work shll be crried out in terms of the Contract shall be comleted during the Defects Libility Period , i necessary, ithin such time therefter s the lyer's gent shll, in riting, llo, if the reson hy ork is being comleted lter is not ttributble to ny l failu failure re of erformnc erformncee by th thee Contrctor work is delyed by the Contractors on fult, the ts Liability Period in resect of the ork concerned l e extended by the dditional time tken by the
57
Contractor to eect completion of the outstanding work. All such remedial work work shall be carried out by the Cost of making good
782
Contractor, 782.1
efects
At his own expense, i the necessity thereor is due to Plant, or the use o materials or workmanship not in accordance with the Contract, or to neglect or ailure on the part o the Contractor to comply with any obligation under the Contract,
7822
However, i such remedial work is due to any other cause, such work, i carried out by the Contractor, shall be valued and paid or in accordance with Clause 6.4.
l the the Contractor shall ail, within 28 days o receipt o Remey on written notice rom the Employer's Agent, to do any Contractor's failure t
7.83
remedial work required by the Employers Agent, the carry out require w Employer shall be entitled to have such work done by his own workmen or by others, and: 7.8.3
l such work should have been done by the Contractor at his own expense, the Employer shall be entitled to recover rom the Contractor the cost thereo, and
7.8.3.2
l the cost o such work, had it been done by the Contractor, would have been assessed and paid or as speciied in Clause 782.2, the Employer shall be entitled to recover rom the Contractor the amount by which the actual cost exceeds the cost which would have been so paid to the Contractor.
7.9 79
Urgent remeia work l, by reason o any accident or ailure, or other event at, on, or in connection with the Works or any part thereo, either while carrying out the Works, or during the Deects Liability Period (i any), any remedial or other repair work
Urgent remeia wok
58
shall be urgently necessary for the safety and protection f the Works, or persons, or property, and the Contractor is not available or is unable to do such work, the Employer ay have the neessary work or repair done by his own orkmen or by others. The Employer's Agent shall, before, or as soon as practicable after the occurrence of any such emergency, oti the Contractor thereof, in writing lf the work so done by the Employer is work which the ontractor was liable to do at his own expense under the ntract, all costs incurred by the Employer in so doing shall be determined by the Employers Agent and the mployer shall be entitled to recover from the Contractor such amount
59
RELTED MAERS MAERS 8. RISKS AND RELTED
8.1 8.1.1
Protection of the Works The Contractor shall protect the Works properly and shall so
Protection of the
arrange his operations that they pose no danger, and cause Works the least possible inconvenience to the public and/or to vehicle and pedestrian trafic For this purpose, he shall, inter alia, provide and maintain sufficient Temporary Works, road signs, lights, barricades, fencing and guarding as may be necessary, or required by any act, regulation, including the South African Road Traffic Signs Manual, or statutory authority 812
All operations necessary for carrying out the Works shall, as
Pollution
far as compliance with the requirements of the Contract prevention and permits, be carried out in such a manner as not to cause
intererences
unnecessary noise or pollution, or to interfere unnecessarily or improperly with, or encroach upon the use of public services, or access to, use and occupation of public or private roads and footpaths or properties, whether in the possession of the Employer or of any other person 813
The Contractor shall use every reasonable means to prevent
Excessive loads
any of the roads or bridges to, or in the vicinity of the Site, from
and trac
being subjected to damage by excessive loads, or disruption due to excessive traic, occasioned by
the transport
arrangements of the Contractor 814
The Contractor indemnifies the Employer against any liability lndemnity by arising out of the Contractor's non-compliance with his
Contractor
obligations in terms of this Clause 815
lt shall be taken that the Contractor has allowed in his rates
Prices r
and/or prices for all obligations in terms of this Clause, except protection of the insofar as provision is made in the Pricing Data for payment in Works respect of specific items pertaining to these obligations
60
8.2
Gare of the Works
8.21
From · the date on which whic h the Site is handed over to the
Gare of o f the the Works
Gontractor to the date of the issue of a Gertificate of Gompletion the Gontractor shall take full responsibility for the care of the Works and of all Plant intended for incorporation into the Works and materials on the Site intended for incorporation into the Works; provided that, if in i n terms of Glause 514. 514 .7 the Employer's Agent shall issue a Gertificate of Gompletion in respect of any part of the Works, the Gontractor shall cease to be responsible for the care of such part and responsibility therefor shall pass to the Employer. .22
8.2.21
lf there is any damage to the Works, or any part thereof, or to
Damage or
the said Plant or materials, or physical loss occurs:
physical loss
From any cause whatsoever (other than the excepted risks defined
in
Glause
.3.1)
while
the
Gontractor
is
responsible for the care thereof, the Gontractor shall at his own cost, repair and make good the same so that, at the issue of the Gertificate of Gompletion, the Works, or the portions of the Works to which the Gertificate relates, shall be in good order and condition, and in conformity with the Gontract. 2.2.2
Arising from any of the excepted risks referred to in Glause .3, the Gontractor shall, if ordered by the Employer's Agent repair and make good the same and the cost of such work shall be valued and paid in accordance with Glause 6.4.
82.23
Occasioned by the Gontractor in the course of any operation carried out by him for the purpose of complying with his obligations under Glause 7., or in respect of work to be completed in terms of Glause 5.14.4, the Gontractor shall be liable for such damage or loss
61
8.3
Excepted risks
8.3.1
The excepted excepted risks risks are are risks of damage damage or physical loss or any Excepted other loss caused by or arising directly or indirectly as a result or consequence of:
8311
War, invasion, act of foreign enemies, hostilities or warlike operations {whether war be declared or not) or imposition of economic sanctions between governments,
8.3.1.2
lnsurrection, rebellion, revolution, acts of terrorism or civil war,
8313
Mutiny, military uprising, military or usurped power, martial law or state of siege, or any other event or cause which determines the proclamation or maintenance of martial law or state of siege,
8.3.1.4
Strike, riot, commotion, disorder, violent demonstrations, sabotage or any form of civil disturbance (whether lawful or not) which is not attributable to any action or inaction of the employees of the Contractor Contractor or his Subcontractors,
8.3.1.5
The
confiscation,
commandeering,
nationalisation,
requisition or destruction of or damage to property by an order of government, or any public or local loca l authority, 8.3.1.6
Disconnection of electricity supply not covered by the agreement with the supply authority,
8.3.1.7
Epidemi famine or plague,
8.3.18
The impact of meteorites,
8319
Pressure waves caused by aircraft, aircraft, or other aerial devices, travelling at sonic or o r supersonic speeds,
62
lonising radiation, or contamination by radioactivity from any nuclear fuel, or from any nuclear waste from the combustion of nuclear fuels, The use of or occupation by the Employer or his employees or agents or other contractors (not employed by the Contractor) of any part of the Works, The design, specification or instruction of the Employer's Agent, Employer or any of their employees or agents, or defects in the materials supplied by the Employer or incorporation in the Works, and/or The fact that the value of materials, as supplied by the Employer for incorporation in the Works, exceeds the value thereof as specified by, or on behalf of the Employer, Employe r, at the time of delivery thereof by the Employer. lf, in carrying out the Works, any of the excepted risks, other
Claim or excepted
than pertaining to the damage or physical loss referred to in risks lause 8222, causes the Contractor to sufer delay to Practical Completion and/or brings about proven additional osts, the Contractor shall be entitled to make a claim in acordance acor dance with Clause C lause 101
lnemificatios 4
ljury to persos
he Contractor:
ad damage to lndemnifies the Employer against any liability in respect of damage to, or physical loss of the property of any person, or injury to or death of any person, and Shall be liable to the Employer for damage to or physical loss of all property of the Employer that is not part of the Works, nor of the Site, Arising directly from carrying out the Works;
63
propery
provided that nothing herein contained shall render the Contractor liable in respect of: 8.4.1.3
The permanent use or occupation of land by reason of the Works or any part thereof,
8.4.1.4
The right of the Employer to construct the Works, or any part thereof, over, under, in or through any land,
8.4.1.5
Any
nuisance,
disturbance
or
interference
arising
necessarily by reason of the construction of the Works, 8.4.1.6
lnterference, whether temporary or permanent, with any servitude, or any other right, which is the unavoidable result of the construction of the Works in accordance with the Contract,
84.1.7
lnjuries or damage to persons or property resulting from any act, omission or neglect of the Employer, his agents, employees or other contractors (not being employed by the Contractor), or
8.4.1.8
Any agreement by the Employer to pay any sum by way of indemnity, or otherwise, unless liability for such payment would have existed in the absence of such agreement
8.4.2
The Employer Employer indemnifies the Contractor Contractor against all liability in
lndemnity by
respect of the matters referred to in the proviso to Clause
Employer
8.4.1.
8.5 8.5.1
Reporting accidents In addition to any statutory obligations, the Contractor shall, as
Reporting of
soon as practicable, report to the Employer's Agent every
acciden
occurrence on the Works, or the Site, which causes damage to property, or injury or death to persons. lf required by the Employer's Agent, the Contractor shall submit a written report to the Employer's Agent within 48 hours of such requirement, setting out full details of the occurrence.
64
The Employer's Agent shall have the right to make any enquiries, either on the Site or elsewhere, as to the cause and results of any such occurrence and the Contractor shall make available to the Employer's Agent the necessary facilities for carrying out such enquiries. lnsurances
Except if provided otherwise in the Contract Data, the
lnsurances to be
Contractor, without limiting his obligations in terms of the
efected
Contract, shall as part of the documentation required before commencing with the Works in accordance with Clause 531, at his own cost, eect and maintain the following insurances in the joint names of the Employer and the Contractor: lnsurance of the Works, Plant intended for incorporation in the Works, and of all materials on the Site intended for incorporation in the Works against damage or physical loss arising from whatever cause (except the causes set out in Clause Cla use 831 ), for the period for whi which ch the Contractor is responsible for the Works in terms of Clause 82.1, and for a sum insured which shall be the aggregate of: The Contract Price, The amount stated in the Contract Data to cover the value of Plant and materials supplied by the Employer for incorporation in the Works and not included in the Contract Price, and The amount stated in the Contract Data to cover professional fees, not included in the Contract Price, payable in respect of the repair or reinstatement of damage to the Works or said movables A Coupon Policy for Special Risks lnsurance issued by Sasria unless otherwise stated in the Contract Data
65
8.6.1.3
Liability insurance that covers the Employer as well as the Contractor against their respective liability for the death of, or injury to any person, or loss of, or damage to any property (other than property while it is insured in terms of Clause 8.6.1.1) arising from or in the course of the fulfilment fulfilme nt of the Contract, from the Commencemen Commencementt Date to the date of the end of the Defects Liabili Period, if there is one, or otherwise to the issue of the Certificate of Completion for a limit of indemnity stated in the Contract Data; provided that the insurance shall include a cross-liability clause such that the insurance shall apply to the Contractor and to the Employer as separate insured parties.
8.6.1.4
lf ground support insurance is stipulated in the Contract Data, or the Contractor's design or method of construction for carrying out the Wrks involves the risk of removal of, or interference with support to adjoining properties including land or structures, or any structures to be altered or added to, the Contractor shall efect and maintain insurance against the death or injury to persons, or damage to such property consequent on such removal or interference with support, until such portion of the Wrks has been completed.
8.6.1.5
Such other additional or varied insurances as are stated in the Contract Data.
8.6.2
The Contractor shall be liable for for the payment of the Liability of deductibles in respect of each claim settlement in terms of the
deductibles
policies eected by the Contractor. 8.6.3
In respect of subcontractors, the Contractor shall legally be
Requirements
deemed to have complied with the provisions of the
relating to
requirements relating to insurance by ensuring that the
subcontractors
subcontractors have efected such insurance.
66
Save as otherwise provided in the Contract, nothing herein
Contractor to
contained shall oblige the Contractor to eect any insurance
efect insurances
which is not generally obtainable from a registered insurer in
obtainable
South Africa. Save as otherwise provided in the Contract Data the
Employer to
insuranc insu rances es referred to in Clause 8.61 shall be efected efect ed with an
approve insurance
insurance company registered in South Africa and the terms
policy
thereof shall be subject to approval by the Employer, which approval shall not be unreasonably withheld The Contractor shall produce to the Employer's Agent the
Contractor to
policies by which the insurances are eected and proof of the
produce proof of
due payment of all premiums thereunder and of the continuity
payment
of the policies for the required period
lf the Contractor fails to eect and keep in force any of the insurances referred to in Clause 8.61 the Employer may
Remedy on Contractor's
eect and keep in force such insurance and pay such premium failure to insure or premiums as may be necessary for that purpose and the Employer shall be entitled to recover such amounts paid from the Contractor
67
9. TERMIN TERMINATI ATION ON OF CONTRA CONTRACT CT 9.1
Termination Termin ation of Contract
l du g h uy uy h , h xpd sks sks s Terminati u lus 83 u y p h wld, d
exeral events
y suh v shll mlly h yg u, s h Wks, h shll, ulss d ul h s md ms hs lus, dvu mpl h Wks h bs hs bly; pvdd h h mply shll b ld, y m suh v, m h by gvg w h d, up suh bg gv, h shll (sv s h ghs h ps ud hs lus) m hwh bu whu pjud h ghs y d bh h h py sp 2
l y h xpd sks s u luss 832 d ludg lus 835 u, d y suh v byd h l h shll mlly yg u h Wks, h supply lbu mls, physlly wh ss h S, su ml sk pss ppy ssd wh h , h shll, ulss d ul h s md ms hs lus, dvu mpl h Wks h bs hs bly pvdd h:
2
h h mply h shll, suh s s us pd ls 20 suv wkg dys, w m pds gggg lss h 40 wkg dys y pd sx mhs, b ld m h by w h h py d, up suh bg gv, h shll (sv s h ghs h ps ud hs lus) m hwh bu
ieral eets
68
without prejudice to the rights of either party in respect of any antecedent breach thereof; or 9.1.22
lf the Employer shall undertake, in writing, to bear any resultant additional costs involved in continuing the Works, the Contractor shall not exercise his right to terminate the Contract
9.1.3
Where the Contract is or alterations and/or additions to an
Existing structure
existing structure and such existing structure is substantially destroyed destroyed, the Employer may terminate the Contract 9.1.4
In the circumstances referred to in Clauses 11, 12 or
lncreased costs
1.3, and whether or not the Contract is terminated under the provisions of this Clause, the Contractor shall be entitled to payment of any increased cost of or incidental to carrying out the Works which is specifically attributable to, or consequent upon the circumstances defined in Clauses 11, .12 or .1.3; provided that the Contractor shall, as soon as any such increase in Cost comes to his knowledge, at least within 14 days after becoming aware of such increase in Cost, notify the Employer's Agent thereof, in writing. The provisions of Clause 64 shall then apply, with the necessary changes lf the Contract is terminated on any account in terms of this Payment if Contract
9.1.5
Clause, the Contractor shall be paid by the Employer is terminated (inasfar as such amounts or items have not already been covered by payments on account made to the Contractor) for all measured work carried out prior to the date of termination, the amount (without retention), payable in terms of the Contract and, in addition: 9.1.51
The amounts payable in respect of any General ltems for the work or service comprised therein that has been carried out or performed and for work and servicing that
69
has been partially carried out or performed, a proper proportion, as certified by the Employer's Agent, of the General ltems, The cost of Plant, materials or goods reasonably
9.1.52
ordered for the Works which shall have been delivered to the Contractor, or of which the Contractor is legally liable to accept delivery (such Plant, materials or goods becoming the property of the Employer upon such payment by him), A sum to be certified by the Employer's Agent as being
9.153
the amount of any expenditure reasonably incurred by the Contractor in the expectation of completing the whole of the Works, inasfar as such expenditure shall not have been covered by the payments previously referred to in Clause 9.1.5, 9.1.54
The expense of removal from the Site of Construction Equipment and Temporary Works as are on the Site at the date of termination, and
9.1.5.5
Any additional sum payable under the provisions of Clause 914
9.1.6
The provisions of this Clause shall, in the circumstances
Over-riding
described
provisions
in
notwithstanding
Clause
911,
anything
to
912 the
and
9.1.3
contrary
apply
contained
elsewhere in the Contract. 9.2
Termination by Employer
9.21
Termination by the
lf:
Employer 9.2.1.1
Application is made for the sequestration of the Contractors estate, or if the Contractor publishes a notice of surrender of his estate, or presents a petition for the acceptance of the surrender of his estate as insolvent, or (being a company or close corporation)
70
goes into liquidation, whether provisionally or finally (other than a voluntary liquidation for the purpose of amalgamation or reconstruction), 9.2.1.2
The Contractor makes a compromise with his creditors, or assigns in favour of his creditors, or agrees to carry out the Contract under the supervision of a committee representing his creditors, or if the Contractor assigns the Contract without having first obtained the Employer's Employer's written consent, or if execution is levied on his goods, or
9.2.1.3
After giving eect to Clause 3.2.2, the Employers Agent certifies, in writing, to the Employer and to the Contractor, with specific reference to this Clause, that the Contractor:
9.2.1.3.1
Has abandoned the Contract; or
9.2.1.3.2
Has failed, in terms of Clause 5.32, to submit documentation in time, or to submit acceptable documentation; or
9.2.1.33
Has failed to commence the Works in terms of Clause 5.3 hereof, or has suspended the progress of the Works (other (other than in terms of Clause 511.1) for fourteen fourte en (14) consecutive consecutive days after reeiving reeiving from the Employers Agent written notice to proceed; or
92.1.34
Has failed to proceed with the Works in accordance with the approved programme, or in the absence of an approved programme, in the Employers Agents opinion; or
9.2.1.35
Has failed to remove Plant or materials from the Site, or to demolish and redo work, within fourteen (14) days after receiving from the Employers Agent written notice that the said Plant, materials or work have
been
condemned
and
rejected
by
the
71
Employer's Agent in terms of these conditions; or 9.2136
ls not carrying out the Works in accordance with the Contract, or is neglecting to carry out his obligations under the Contract; or
92.137
Anyone, on his behalf has paid, oered, or ofer as payment, to any person in the employ of the Employer or to the Employer's Agent, or any person in the employ of the Employer's Agent, a gratuity or reward or commission or
9.2.138
Has
furnished
inaccurate
information
in
the
returnable documents completed at tender stage and frming part of the Contract;
then the Employer may, after giving fourteen (14) days written notice to the Contractor, (with specific reference to this Clause) to remedy the default, terminate the Contract and order the Contractor to vacate the Site and hand it over to the Employer The Employer may then enter the Site and the Works and expel the Contractor therefrom without thereby aecting the rights and powers conferred on the Employer or the Employer's Agent by the Contract The Employer may complete the Works himself, or may employ another contractor to complete the Works, and the Employer, or such other contractor, may use for such completion as much of the Construction Equipment, Temporary Works and materials brought onto the Site by the Contractor as the Employer may think proper proper lf,
Clause
92.11 is not applicable, the Employer may at any time sel any of the said Construction Equipment, Temporary Works and unused materials and apply the proceeds of sale towards payment of any sums that may be due or become due to the Employer by the Contractor under the Contract In such circumstances, the Contractor shall forthwith vacate the Site and shall not be entitled to remain on the Site based
72
on a right of retention until amounts due to him have been paid and neither will the Contractor be entitled to any further paymnts in terms of this Contract 9.22
Should the amounts the Employer must pay to complete the Payment to Works exceed the sum that would have been payable to the complete the Works Contractor on due completion by him, the Contractor shall, upon demand, pay to the Employer the dierence This sum shall legally be deemed a debt due by the Contractor to the Employer and shall be recoverable accordingly; provided that, should the Contractor on demand not pay the amount of such excess to the Employer, such sum may be determined and deducted by the Employer from any sum due to or that may become due to the Contractor under this or any previous or subsequent contract between the Contractor and the Employer
923
lf the provisi provisions ons o off Clause 211 apply, an anyy notice or order Notices to referred to in this Clause shall be delivered to the trustee or trustee/liquidator liquidator, and the rights and obligations vested in, or binding on the Contractor, shall vest in or be binding on the estate under sequestration or liquidation.
9.3
Termination by Contractor
931
In the event that the Employer:
9.3.11
Has repudiated the Contract; or
9.31.2
Has failed to pay the Contractor the amount due in terms of any payment certificate issued by the Employer's Agent, within the time of payment provided in the Contract; or
9.3.13
Has interered with or obstructed the issue of any certificate; or
9.3.1.4
Has had his estate sequestrated (provisionally or finally}
Termination by the Contractor
73
or, being a company or closed corporation, going into liquidation (provisionally or finally); or 9.3.1.5
Has assigned the Contract without the written consent of the Contractor; the Contractor may after giving fourteen (14) days written notice to the Employer (with specific reference to this Clause) to remedy the default terminate the Contract
9.3.2
Upon such termination:
Removal of items and payment to
9.3.2.1
All the provisions of the Contract including this Clause shall continue to apply for the purpose of
93211
Resolving any dispute and
9.3.2.1.2
Determining the amounts payable by either the Employer or the Contractor to the other of them.
9.3.2.2
The ownership of Plant and unused materials brought onto the Site by the Contractor and for which the Employer has not made any payment, shall revest to the Contractor and he shall with all reasonable dispatch remove from the Site such Plant materials and all Construction Equipment and Temporary Works without prejudice to the exercise of any lien the Contractor may have acquired over the Employer's property
9.323
The Employer shall be under the same obligations to the Contractor with regard to payment as if the Contract had been terminated under the provisions of Clause 9.1 but in addition to the payment specified in Clause 9.15 the Employer shall pay to the Contractor the amount of any additional loss or damage to the Contractor arising out of or in connection with or in consequence of such termination.
on racor
74
Nothing in this Clause shall prejudice the right of the Other rights of the Contractor to exercise, either in lieu of or in addition to the Contractor rights and remed1es specified in this Clause, any other rights or remedies to wich the Contractor may be entitled under the Contract or common law. lf the estate of the Employer shall have been sequestrated Notices to (provisionally or finally) or if the Employer, being a company trustees/liquidator trustees/liquidators s or close corporation, is liquidated (provisionally or finally), any notice referred to in this Clause shall be delivered to the trustee, or provisional trustee, or the liquidator, or provisional liquidator, and all rihts vesting in or binding on the Employer shall vest in or be binding on the estate unde underr sequestration or liquidation.
75
10. CLAIMS AND DISPUTES 101 Contractor's claim
10.11 The following provisions shall apply to any claim by the Contractor for an extension of time for the Practical Completion of the Permanent Works in terms of Clause 5.12 or in terms of any Clause that refers to Clause 10.1 for additional payment or compensation: compensation: 10.1.11
The
Contractor Contractor
shall
within 28
days after
the the
circumstance event act or omission giving rise to such a claim has arisen or occurred
deliver to
,;
Employer's Agent a written claim referring to this Clause and setting out:
10.111.1
The particulars of the circumstance event act or omission giving rise to the claim concerned
10.1.1.1.2
The provisions of the Contract on which he bases the claim
10.11.13
The length of the extension of time if any claimed and the basis of calculation thereof and
10.1.11.4
The amount of money claimed and the basis of calculation thereof.
101.1.2
lf by reason of the nature and circumstances of the claim the Contractor cannot reasonably comply with all or any of the provisions of Clause 101.1.1 within the said period of 28 days he shall
10.1.1.21
Within the said period of 28 days notify the Employers Agent in writing of his intention to make the claim and comply with such of the requirements of Clause 10.1.1.1 as he reasonably can and
1011.2.2
As soon as is practicable comply with such of the requirements of Clause 10.1.1.1 as have not yet
Contractor's clai
76
been complied with. 101.1.3
lf he events or circumstances relating to the claim are of an ongoing nature, the Contractor shall, in addition to delivering the said notice within 28 days, each month deliver to the Employer's Agent, in writing, updated particulars required in terms of Clause 10.111 and, within 28 days after the end of the events or circumstances, deliver his final claim
101.2 lf, in respect of any claim, the Contractor did not comply
Exended period r
with the provisions of Clause 1011 because he was not claim and could not reasonably have been aware of the implications of the facts or circumstances concerned, the period of 28 days referred to in Clause 10.1.1 shall commence to run from the date when he should reasonably have become so aware. The cost and time of all work done in this regard by the Contractor prior to giving such notice shall be regarded as covered by the rates and/or prices set out in the Pricing Data and the time stated in the Contract Data relating to Clause 11114. 1013 To properly assess the extent and validity of claims
Records offacts and
submitted in terms of this Clause, the following provisions
circumst circ umst ances ances or
shall apply, and where a claim or notice to claim from a
claim
subcontractor forms in whole or in part the claim or notice to claim submitted by the Contractor to the Employers Agent, the subcontractor shall be joined with the Contractor in the claim
procedures,
and
if
necessary,
in
the
dispute
procedures: 10.1.31
All facts and circumstances relating to the claims shall be investigated as and when they occur or arise For this purpose, the Contractor shall deliver to the Employers Agent, records in a form approved by the Employer's Agent, of all the facts and circumstances which the Contractor considers relevant and wishes to rely upon in support of his claims, including details of all
77
Construction Equipment, labour and materials relevant to each claim. Such records shall be submitted promptly after the occurrence of the event giving rise to the claim.
10.1.3.2
The Employer's Agent may record facts and circumstances, additional to those recorded by the Contractor, he considers relevant and the Contractor shall, for this purpose, supply the Employer's Agent with all the information he may require.
10.1.3.3
The Employer's Agent and the Contractor shall, at the time of recording in terms of Clauses 10.1.3.1 and 10.1.3.2, set out, in writing, signed by each party and delivered to each other, their respective agreement, or disagreement, with regard to the correctness of the matters recorded.
10.1.3.4
Each record of an agreed fact in terms of Clause 10.1.3.3 shall in any dispute be conclusive evidence of the fact concerned.
10.1.3.5
For the purpose of this Clause, information arising from a technical investigation, or analysis, undertaken after the events that gave rise to the claim have occurred, shall not be regarded as facts or circumstances required to be recorded in terms of this Clause.
10.1.3.6
The
Employer,
the
Employer's
Agent
and
the
Contractor shall not in any proceedings in accordance with Clauses 10.3 to 10.11 be entitled to give or lead evidence of or rely on any fact or circumstance not recorded in terms of this Clause, if the other party to the dispute is prejudiced by such non-recording of the facts. 101.4 lf, in respect of any claim claim to which this Clause refers, the
Contractor's Contractor' s failure
Contractor fails to comply with the 28 day notice period in
comply with notie
Clause 10.1.1, as read with Clause 10.1.2, or does not
priod
78
deliver his final claim within 28 days after the end of the events or circumstances, the Due Completion Date shall not be extended, the Contractor shall not be entitled to additional payment, and the Employer shall be discharged of all liability in connection with the claim. 101.5 Unless otherwise provided in the Contract, the Employer's
Employer's Agent's
Agent shall, within 28 days after the Contractor has
ruling on Contrctr's
delivered his claim in terms of Clause 10.1.1 as read with
clim
Clause 101.2, give eect to Clause 322 and deliver to the Contractor and the Employer his written and adequately /
reasoned ruling on the claim (referring specifically to this Clause) The amount thereof, if any, allowed by the Employer's Agent shall be included to the credit of the Contractor in the next payment certificate; provided that: 10151
The said said period period of of 28 days may be extended if so so agreed between the Contractor and the Employer's Agent, and
10.15.2
Any amount
that that
has been established
to the
satisfaction of the Employers Agent, before his ruling on the whole claim, shall be included to the credit of the Contractor in the next payment certificate 10.2 Disstisfction Disstisfcti on clim 10.21 In respect of any matter matter arising out of or in connection with with
Disstisfction Disstisfct ion cli
the Contract, which is not required to be dealt with in terms of Clause 101, the Contractor or the Employer shall have the right to deliver a written dissatisfaction claim to the Employer's Agent This written claim shall be supported by particulars and substantiated. ilure ilur e to tice
10.22 lf, in respect of any matter arising out of or in connection Filure to cli with the Contract, which is not required to be dealt with in disstisfctin terms of Clause 10.1, the Contractor or the Employer fails
79
to submit a claim within 28 days after the cause of dissatisfaction, he shall have no further right to raise any dissatisfaction on such matter. 10.2.3 The Employer's Agent shall, within 28 days after the
Employer's
Contractor or Employer has delivered the dissatisfaction ulig n claim to him, give eect to Clause 3.2.2 and give his adequately reasoned ruling on the dissatisfaction, in writing to the Contractor and th_e Employer, referring specifically to this Clause. Th amount thereof allowed by the Employer's Agent, if a any, ny, al be included to the cred creditit of the Contractor or the Employer in the next payment certificate 10.3
Diput tic
10.31 The Contractor or the Employer, hereinafter referred to as "the parties", may deliver to the other a written notice, hereinafter referred to as a "Dispute Notice", of any dispute arising out of or in connection with the Contract; provided that: 10.3.1.1
The dispute arises from a rejected claim,
10.31.2
Reference shall be made to this Clause in the Dispute Notice,
103.1.3
A copy of the Dispute Notice shall be delivered to the Employer's Agent,
103.1.4
The Dispute Notice shall clearly state he nature of the dispute and the extent of the redress sought, and
10.3.1.5
The Dispute Notice shall be delivered within 28 days of the event giving rise to the dispute. Failing such delivery, the parties shall have no further right to dispute the matter.
10.3.2 lf either party shall have given notice in compliance with Dipute tb Clause 103.1, the dispute shall be referred immediately to efeed
80
adjudication in terms of Clause 10.5, unless amicable settlement is contemplated.
33 In respect of a ruling given given by the Employer's Agent, and
Ruling in fll rce
although the parties may have delivered a Dispute Notice, the ruling shall be in full force and carried into eect unless and until otherwise agreed by both parties, or in terms of an adjudication decision, an arbitration award or court judgement 10.4 Amicable settlement
41 The parties may at any any time, without withou t prejudice to any other
Dispute resolution by
proceedings, agree to settle any claim or any dispute amicable setlement amicably with the help of an impartial third party Amicable settlement may include any settlement technique as agreed by the parties 4.2 lf the other party rejects the invitation to amicable Amicable settlement settlement in writing, or does not respond in writing to the failure invitation within 14 days, or amicable settlement is unsuccessful,
referral
to
adjudication
shall
follow
immediately, provided that, if amicable settlement failed subsequent to adjudication, the dispute shall be resolved by arbitration or court proceedings, whichever is applicable in terms of the Contract. 43 Amicable settlement shall become final and binding on the parties only to the extent that it is correctly recorded as
Binding amicable settlement
being agreed by the parties Save for reference to any portion of any settlement, or
No reference of
decision which has been agreed to be final and binding on
amicable settlement
the parties, no reference shall be made by or on behalf of
outcomes
either party in any subsequent adjudication, arbitration or court proceedings, to any outcome of an amicable settlement, or to the fact that any particular evidence was
81
given, iven, or to to an any y sub ubmis mission sion,, state tateme ment nt or adm dmiss ission ion made made
in the course of the amicable settlement.
10.5 Adjudication 10.5.1 10.5 .1 lf the the Contra ontract ct Data Data pr ovides ovides f o orr dispute ispute r esolutio esolution n by a
Disput Disp ut e resolu resolution tion by by
standing tanding Adjudica Adjudication tion Board, Board, the Employe Employer, r, togeth together er with stadi stadig g adju adjudi dicati cati the Contractor, shall, within 56 days of the Commencement Date, appoint the member or members of the Adjudication Board 1052
lf
the Contract Data does not provide or dispute resolution
standing Adjudicat by a standing Adjudication ion Board Board,, the the dispute dispute sha shallll be
Dispute resolution ad-hoc ad-hoc ad judication judication
referred to ad-hoc adjudication. 10.5.3 The Adjudication Board shall consist of the number of
Rules r adjudication
members stated in the Contract data. lt shall be efected and its proceedings conducted in accordance with the Adjudication Board Rules. 10.5.4 The parties shall implement the Adjudication Adjudication Board's decision without delay whether or not the dispute is to be
Implemetatio of decisio
refrred to arbitration or court proceedings Payment shall be made in accordance with Clause 610 in the payment certificate which becomes due after the date of issue of the decision, unless otherwise directed by the Adjudication Board.
6 Disagreemet with Adjudicatio Board's decisio 1061 Either party shall have the right to disagree with any
Disagreemet with
decision of the Adjudication Board and refer the matter to
Adjudicatio Boards
arbitration or court proceedings, whichever is applicable in
decisio
terms of the Contract; provided that: 10.61.1
The decision shall be binding on both parties unless
82
and until it is revised by an arbitration award or court judgement, whichever is applicable in terms of the Cöntract. 10.6.1.2
A party shall not dispute the validity, or correctness of the whole, or a specified part of the decision, before 28 days or after 56 days from receipt of the decision Unless either party shall on or after the said 28 days, or on or before the said 56 days from receipt of the decision, give written notice to the other party, referring to this Clause, disputing the validity, or correctness of the whole, or a specified part of the decision, he shall have no further right to refer such a dispute to arbitration or court proceedings, whichever is applicable in terms of the Contract
106.2 In the event that a decision of the Adjudication Board was Failure to comply not disputed and a party fails to comply with the decision, with a decision the other party may, without prejudice to any other right he may
have,
refer
the
failure
to
arbitration
or
court
proceedings, whichever is applicable in terms of the Contract. 10.6.3 lf the Adjudication Board fails to give its decision within tthe he
Failure to give a
time stated in the Adjudication Board Rules, or otherwise
decision in time
agreed by the parties, either party sall have the right to submit the dispute to arbitration or court proceedings, whichever is applicable in terms of the Contract, by giving written notice to the other party, referring to this Clause, within 28 days after the decision should have been given lf either party fails to give such a notice within the 28 days, the Employer's Agents ruling, or any agreed settlement, shall be final and binding.
10.7 Arbitration 1071 lf the Contract Data provides for determination of disputes by arbitration and a dispute is still unresolved, the matter shall be referred to a single arbitrator. Any such reference
83
Reference to arbitration
83
shall be regarded as a submission to the arbitration of a single arbitrator in terms of the Arbitration Act (Act No. 42 of 1965, as amended) or any legislation passed in substitution therefor 10.7.2 10. 7.2 In the absence of any other agreed procedure the
Rufes or arbitration
arbitration shall take place in accordance with the Rules for the Conduct of Arbitrations issued by the Association of Arbitrators (Southern Africa) which is current at the time of the referral to arbitration. 107.3 The arbitrator shall in his award award s set et out the facts facts and the Reasoed award provisions of the Contract on which his award is based.
10.8 Court proceedigs 10.8.1 lf the Contract Data does not provide for the the settlement of Reerece to court disputes by arbitration and if a dispute is still unresolved the dispute shall be determined determined by court proceedings.
10.9 Appoitmet 109.1 The dispute resolving person or persons shall be be appointed Appoitmet o by agreement of the parties. Failing agreement within seven dispute resolvig days of either party delivering a request in writing to agree
persos
to such appointment the person or persons shall be nominated on the application of either party by the President or his nominee of the South African Institution of Civil Engineering. Engineering.
10.10 Commo provisios 10.10.1 Nothing herein contained shall deprive the Contractor of Cotractor's right to the right to institute immediate court proceedings in respect court proceedigs of failure by the Employer to pay the amount of a payment certificate on its due date or to pay any amount of retention money on its due date for payment.
10.10.2 No ruling given by the Employer's Agent in accordance Emply Emplyer's er's Aget as with the provisions of the Contract shall disqualify him from witess
84
being called as a witness and giving evidence before the arbitrator or the court on any matter whatsoever relevant to the dispute concerned. 101.3 The arbitrator and the court shall have full power to open Arbitrator and cou's up,
review
and revise
any
ruling,
decision,
order,
instruction, certificate or valuation of the Employer's Agent
power regarding a ruling or a decision
and to reconsider any decision by the Adjudication Board relevant to the matter in dispute, and neither party shall be limited in such proceedings before such arbitrator or court to the evidence or arguments put before the Employer's Agent for the purpose of obtaining his ruling, or the Adjudication Board for the purpose of obtaining a decision.
10. Continuing validity 01. Clauses to are a separate, divisible agreement Continuing validity from the rest of the Contract and shall remain valid and applicable notwithstanding that the Works may have been completed, or that the rest of the Contract may be void or voidable, or may have been terminated for any reason.
85
General Conditions of Contract for Construction Works, Third Editon (2015) CONTACT PRICE ADJUSTMENT SCHEDULE 1.
The value of each monthly statement for payment, submitted to the Employer's Agt by the Contractor, shall be increased or decreased by the amount obtaine multiplying " " (defined in Clause 2 of this Contract Price djustment Schedul) c
the Contract Price Adjustment Factor, rounded of to the fourth decimal pl, determined according to the formula:
l] (1-x)[aLt + b� + cM + dF l] 1
Lo
Po
Mo
Fo
in which the symbols have the following meaning "x" is the proportion of " " which is not subject to adjustment adjustment Unless otheri otheri c
stated in the Contract Data, Da ta, this proportion shall be 0, 10 "a", "b", "c" and "d" are the coefficients contained in the Contract Data, which deemed, irrespective of the actual constituents of the work, to represent t proportionate value of labour, Contractors Equipment, material (other than "spil materials" specified in the Contract Data and fuel respectively. The arithmetical of "a", "b", " b", "c" " c" and "d" shall be unity. unity. "L" is the "Labour Index", "P" is the "Contractors Equipment Index", "M" is th "Materials Index" and "F" is the "Fuel Index", all as defined in the Contract Data. The sufix "0" denotes the base indices applicable to the base month as stated in t Contract Data. The sufix "t" denotes the current indices applicable to the month in which the lt day of the period falls to which the relevant monthly statement relates. lf an index relevant to any particular monthly statement is unknown at the time h the monthly statement is prepared, the Contractor shall estimate the value of s index. ny correction required, when the correct indices become known, shall be m by the Contractor in subsequent subsequent monthly statements lf the organisation publishing the indices, changes any of the indices set out in th Contract Data, the Contractor shall use a correlation factor, which integrates the l and the new indices, for adjustment of subsequent payment payment certificates
2
For the purposes of calculating the adjustment to the value of the relevant monthl statement, the amount " " shall be determined by the formula A c = T - S - D - E - G - A P c
86
In which ormula the symbols shall have the following meaning: "T" is the summation of the total value of (i)
General ltems
(ii)
work done, and
(iii)
the materials on Site
as certified in the monthly statement under consideration without any deduction whatsoever and before any adjustment made in terms of this Schedule. "S" is the aggregate of (i), (ii), (iii) and (iv) referred to below and included in "T": (i)
the amounts actually expended and substituted for any Prime Cost Sums;
(ii)
the value of any work done by Selected Subcontractors;
(iii)
the value of any work done against Provisional Sums;
(iv iv))
the vva alue lue o off an any e exxtra tra o orr a add ddit itio ion nal work;
where special arrangements for price adjustments in respect of those amounts were made and recorded at the time the work was ordered. "D" is the value of work included in "T" and done at new fixed rates, where those rates were not based on labour, Contractors' Equipment or materials costs in force at the time of tendering. Generally new rates may be based on current costs and deescalated to the base month of the indices, in which case work done at these rates shall not be included in the value of "D" "E" is the amount included in "T" and paid for any daywork carried out at cost plus percentage allowances as set out in General Conditions of Contract Clause 6512.3. "G" is the amount included in "T" for materials classified and dealt with as "special materials". "A P " is the summation of all "A c " amounts determined in terms of Clause 2 of this Contract Price Adjustment Schedule for all monthly statements preceding in time the monthly statement under consideration.
Save only for additional work, or variations ordered to be carried out after the Due Completion Date, the increase or decrease applied to monthly statements in terms of this Contract Price Adjustment Schedule, relating to work done, Plant and/or materials supplied after the Due Completion Date, shall be half the factor calculated by inserting the formula referred to in Clause 1 hereof, the indices L t , � , Mt and applicable at the Due Completion Date.
41
The ice of each "special material" specified in the Contact Data shall be increased or decreased by the net amount of any variation incurred aer the date of tender on the
87
basis set out in the Contract Data, provided that any claim for adjustment in tr hereof shall be substantiated by the submission of acceptable invoices and any t supporting documents that the Employer's Agent considers necessary for the purp, and provided also that no further adjustment be prmitted to th price of any "spil material" after the Due Completion Date unless such material forms part of additional work or variation ordered to be carried out after that date. 4.2
For the purposes of Clause 41 hereof, "the net amount of any variations" in respt a particular "special material" shall be calculated by multiplying the dierence bet the rate or price entered in the Contract Data by the Contractor for that material the equivalent rate or price actually paid by the Contractor for the material by t quantity of the material in question
5
lf mor more e th than an one one mont month h interv interven enes es b betw etwee een n the mon month th ap appli plica cable ble tto o any mo mot tl l statement and the month applicable to the immediately succeeding monthly statemt, then the indices L , � , M and applicable to such succeeding monthly statet t
t
1
shall each be the arithmetic mean, rounded o to the second decimal place, of t relevant indices applicable to the month of measuremnt and to such intervei months
88
General Conditions of Contract fr Construction Works, Third Edition (2015)
ADJUDICATION BOARD RULES 1
In these Rules te followig words ad expressios sall ave te meaigs ereby ied to tem except were te cotext oterwise requires. Te defiitios i GC 2015 are also applicable to tese Rules. "Adjudicatio Board meas a tribual wic issues a decisio a dispute, or disutes, wic as arise betwee te Parties to a otract "d-hoc adjudicatio relates to a djudicatio Board wic is appoited to cosier a ecific dispute wic as already arise. "stadig adjudicatio relates to a djudicatio Board wic is appoited at te utset ad for te duratio of te otract "rties meas collectively te otractor ad te Employer. " 2015 meas te eeral oditios of otract for ostructio Wrks, Tird ditio (2015) issued by SIE. "AIE meas te Sout frica Istitutio of ivil Egieerig
hese Rules apply to dispute resolutio by eiter ad-oc adjudicatio i terms of luse 10.5.2 or stadig adjudicatio i terms of lause 1051 of 2015. dhoc adjudicatio is a procedure fr te particular purpose of reacig a fair, quick d iexpesive settlemet of a dispute. tdig adjudicatio is a flexible procedure available to te paries from te outset of te otract for its full duratio, to assist tem i reducig coflict, prevetig claims eig disputes ad resolvig ay dispute tat may arise e Parties may joitly agree, i writig, to alter ay of te provisios of tese rules suld suc alteratio beefit te settlemet process
DB Adjudication Procedure altered to eliminate duplication with GCC 2015 provisions and to allow ig adudication.
89
3. Appointment Appointment and and establishmen establishmentt of the Adjudication Adjudication Board Board 3.1
The ad-hoc Adjudication Board shall be appointed in accordance with GCC 205, Clause 191, and the standing Adjudication Board shall be established in accord with CC 21, Clauses 1..1 and 1.9.1.
32
For an ad-hoc Adjudication Board, the referring party shall select three or m persons fro the panel of ad-hoc adjudicators of SAICE, deterine their fees confir that they are available to resolve the dispute in question. Within seven , the other party shall then select fro the noinees either one or three persos allowed for in the Contract Data. Failing selection, the President of SAICE, or i noinee, on the application of either party, shall noinate a person or persos Adjudication Board Meber(s).
3.3
For a standing standing Adjudication Board, the Parties shall at the outset of the Contr Contrt t,, jointly select select either one or thr three ee persons, as allowed for in the Contract Contra ct Data, from t panel of standing adjudication ebers of SAICE. Failing selection, the Presidet SAICE, SAIC E, or his noinee, on the application applicati on of either party, shall noinate noina te a perso perso r r persons as Adjudication Board Meber.
3.4
lediately upon confiration of the person selected or noinated as Adjudicti Board Meber, the referring party in the case of ad-hoc adjudication, and the Parti jointly in the case ca se of standing adjudication, shall request hi h i to subit forthwith to t Contractor and the Eployer a disclosure stateent in accordance with the pro form attached as Appendix 4.
3.
Once the Parties are jointly satisfied with the disclosure stateent, the Adjudicati Board Meber shall be appointed by entering into the Adjudication Board Agreemt set out in Appendix , with such aendents and conditions as are agreed betwe
3.6
the Parties and the Adjudication Board Meber. lf the Contract Data relating to CC 21, Clause 1..3, indicates that a three pers Adjudication Board shall be established, the Parties shall jointly decide on one of t Adjudication Board Mebers to act as chairperson for the Adjudication Board. lf t Parties fail to agree on a chairperson chairperson,, the Adjudication Adjudication Board Mebers Meber s shall, aont theselves, elect an Adjudication Board Meber as chairperson
37 37
lf an Adjudication Board Meber for any reason cannot or ought not to continue Adjudication Board Meber, the new Adjudication Board Meber shall be appoint in the sae anner as the Adjudication Board Meber who is being replaced.
90
. Ad-hoc ajuication proceure .1
Notice of ahoc ajuication
.1.
The party referring the dispute for ad-hoc adjudication shall within 28 days of the event giving rise to the adjudication has arisen, give written Notice of Adjudication to the other party and the Employer's Agent The Notice of Adjudication shall include:
...
The details of the Contract between the Parties A copy of the Dispute Notice delivered in terms of GCC 205, Clause 03 Details as set out in Rule 32 of the persons selected as potential Adjudication Board Member(s) lf such Notice of Adjudication is not given within the stipulated 28 day period, adjudication shall no longer apply to the dispute in question and the other party shall be discharged from all liability in connection with this dispute
Referring the ispute to ahoc ajuication
4..
The dispute shall be referred to ad-hoc adjudication in accordance with GCC 205, Clause 032 The referring party shall no later than days from receipt of confirmation of the person(s) selected or nominated as Adjudication Board Member(s), send to the Adjudication Board, with a copy to the other party, a full statement of his case which shall include: A copy of the Notice of Adjudication. A copy of the provision for adjudication in the Contract. The
information
on
which
the
claim
is
based,
including
supporting
documentation The date of referral of the dispute to adjudication shall be the date upon which the djudication Board receives the above statement The Adjudication Board shall inform the Parties forthwith of the date of referral The other party may submit a response to the referring party's statement within days of referral This period for submitting the response may be extended, in writing, by the Adjudication Board Rmuneration of hoc juication Boar Members
.. The Parties shall pay the Ad-hoc Adjudication Board Members fees and expenses, including those of any legal or technical advisors appointed under Rule 6.8, equally unless, the decision, stating the reasons, provides for a dierent apportionment . Stnding ajuication proceure .1
eetings eetings an site visits r staning ajuication ajuication
The purpose of meetings and site visits by the Adjudication Board is to avert claims and issatisfactions, to observe and to stay informed with regard to the progress of the Works and of o f any potential or o r actual claim or o r dissatisfaction
91
5.1.2
At the outset of its prceedings, the Adjudication Board shall, in consultai Contractor and the Employer, set up a schedule of regular meetings sit intervals of between 75 and 140 days, together with venues and t persons who should attend.
5.1.3
The Contractor and/or the Employer may request a meeting or site visit ti scheduled meetings and the Adjudication Board Member(s) shall compl i request as soon as possible, but not later than 21 days from receit request
5.1.4
At the conclusion conclusion of every meeting and site visit, and before before dai Adjudication Board shall prepare and submit to the Contractor and the l written report of the meeting and site visit, which shall include at least th all the persons present, the status of the Works and matt� f concern.
5.2
5.2.1
Duties Duties of the Contractor and the Employer Employer or standing adjudication
The Parties shall keep the Adjudication Board informed of any claims a i and any probable future event or circumstance that may lead to a dissatisfaction
52.2
At the outset of the proceedings, the Employer shall supply copies of te documents to the Adjudication Board Member(s).
52.3
The Parties Part ies shall furnish to the Adjudication Adjud ication Member(s) Me mber(s) whatev whatever er documents may be requested.
5.2.4
During meetings and site visits, the Parties shall provide whatever fcilii Adjudication Member(s) may reasonably request.
53
5.3.1
Duties of the standing Adjudication Adjudication Board
From the outset of its proceedings, the Adjudication Board shall informall ai Parties to resolve differences between them by discussion and expressio regarding regard ing such differences.
53.2
lf the Parties so agree, they may jointly refer any matter to the Adjudicatio its opinion. Neither the Contractor nor the Employer shall consult the ji Board on any matter without the agreement of the other party.
5.3.3
The Adjudication Board shall not take take over the discretion, authority or making power of the Contractor or the Employer and shall not giv ai carrying out the contract.
5.4
5.4.1
Referring the dispute to standing adjudication
The dispute shall be referred to standing adjudication in accordance with G Clause 10.3.2.
92
54.2 The referring party shall, within 28 days of the event givin givingg rise to adjudication has arisen, refer the dispute in writing to the Adjudication Board for its decision, with copies o the other party and the Employer's Agent 543
Failing to refer the dispute within the stipulated 28 day period, adjudication shall no longer apply to the dispute in question and the other party shall be discharged from all liability in connection with this dispute
5.
51
Remuneration of Standing Adjudication Board Members
The Partie s shall pay the Standing Adjudication Board Members fees and expenses, including those of any legal or technical advisors appointed under Rule 6..8, equally.
6. Condit Condition ions s of conduc conductt during during adjudicati adjudication on
1
The Parties shall at all time act in good faith.
2 The Parties shall be free to settle a dispute at any time 3
The Adjudication Board may conduct its proceedings in any manner that it considers appropriate, subject to the Contract and these Rules and guided by the principles of fairness and impartiality and taking into account the wishes of the Contractor and the Employer The Adjudication Board shall not be required to observe any rule of evidence, procedure or otherwise, of any court, except the rules of natural justice The Adjudication Board shall not visit the Site without the Parties being present
4 41
The Adjudication Board shall have the power, amongst other things, to: Open up, review or revise any ruling, decision, order, instruction, certificate or valuation by the Employers Agent relevant to the matter iin n dispute
42
Request and stipulate the format and, allowing suicient opportunity, the dates for submissions of and responses to disputes
43 Ascertain the facts required to reach a fair decision by observation, inspection, enquiries and questioning, or any other activity considered necessary. 44
Set, revise and extend time periods for any act required by the Contractor and/or the Employer during the proceedings
4
Determine any other matters which the Parties and the Adjudication Board agree should fall within the scope of the adjudication.
46 Conduct hearings at ddates ates and venues as agreed with the Parties and follow procedures for such hearings as it sees fit. However, wherever possible, the ad-hoc Adjudication Board shall reach its decision without conducting a hearing 47 Apl its expert knowledge and experience 48 Obtain legal, or oth other er technical advice, having firs firstt notified the Parties of its inten intention tion
93
6.4.9
Order payment of a sum of money or other redress No decision of the Adjudicatio Board shall, however, afect the freedom of the Parties to vary the rms of t Contract, or the Employers Agent to vary the Works in accordance with the Contract
6.4.10 Correct a decision in order to remove any clerical mistake, error or amb ambiguity iguity o its own initiative, or at the request of the Contractor or the Employer, provided that t initiative is taken, or the request is made, within 7 days of the publication of t decision 6411 Settle any dispute regarding the Adjudication Board Member Agreement and ma decide on its own jurisdiction to act. 64.12 Proceed with the proceedings if either the Contractor or the Employer refuses or fails fails to participate in the proceedings or any part thereof
7. Adjudicatio Adjudication n Board Board Decision Decision 7.1
Unless the Parties Parties otherwise agree in writing, the decision shall be delivered within 28 days of the submission of the last document on the matter to the Adjudication Boar, or the conclusion of the hearing
72
The Adjudication Board may reach a decision on dierent aspects of the dispute at dierent times.
7.3
The facts and the provisions of the Contract on which the decision is based, shall b set out simultaneously with its publication.
74
The decision shall be given in writing and regarded as published on the date on whic it is delivered to the Parties
75
lf the Adjudication Board is composed of three Members, it shall endeavour to b unanimous in giving the decision, failing which, the decision shall be that of th majority. The decision of the minority shall be included in the Adjudication Board's published decision.
76
lf either the Contractor or the Employer is in disagreement with the Adjudicatio Boards decision, GCC 2015, Clause 106, shall apply
8 Representa Representation tion 1
The Parties may be represented and/or assisted by persons of their choice, provided that formal legal representation of one party has the written consent of the other party
.2
The names and professions of such persons shall be communicated, in writing, to the other party and the Adjudication Board.
94
9. Con Conde dent ntia ialility ty 9.1
Unless the Parties agree otherwise, the proceedings and outcome are private and confidenial, except where disclosure is necessary for purposes of implementation and enforcement.
10 Liability of the Adjudication Adjudication Board Member(s) 101 The Adjudication Board Member(s) is/are not liable for anything done, or omitted to be done, in the discharge or purported discharge of his/their functions as member(s) of the Adjudication Board, unless the act or omission was in bad faith The Parties shall exempt and indemnify the Adjudication Board Member(s) against all claims by third parties and in respect of this shall be jointly and severally liable
95
General Conditions of Contra for Construction Works, Third Edition (2015) PROFORMAS The General Conditions of Contract for Construction Works, Third Edition (2015) has been cmpil on the basis that the fllowing suleentary docuentation in the orat of ro fora coleted by the arty or arties as relevant shall for art of the Contract. Aendix 1: For of Oer and Accetance Aendix 2: Contract Data Aendix 3: Peorance Guarantee Aendix 4: Disclosure Stateent Aendix 5: Adjudication Board Meber Agreeent
96
Appendix 1 General Conditions of Contract fr Construction Works, Third Edition (2015) PRO FORMA FORM OF OFFER AND ACCEPTANCE (Agreement) er The Employer, identified in the Acceptance signature block, has solicited oers to enter into a contract in respect of the following works:
The Tenderer, identified in the Oer signature block below, has examined the documents listed in the Tender Data and addenda thereto as listed in the Tender Schedules, and by submitting this Oer has accepted the Conditions of Tender.
By the representative of the Tenderer, deemed to be duly authorised, signing this part of this Form of Oer and Acceptance, the Tenderer oers to perform all of the obligations and liabilities of the Contractor under the Contract including compliance with all its terms and conditions according to their true intent and meaning for an amount to be determined in accordance with the Conditions of Contract identified in the Contract Data
THE OFFERED OF FERED TOTAL OF THE PRICES PR ICES INCLUSIVE OF O F VALUE ADDED TIS
.........................Ran ......................... Rand d (in words); R .................... ........................... ....... (in figures). This Oer may be accepted by the Employer by signing the Acceptance part of this Form of Oer and Acceptance and returning one copy of this document to the Tenderer before the end of the period of validity stated in the ender Data, wheeupon the Tenderer becomes the party named as the Contractor in the Conditions of Contract Contract identified in the Contract Contract Data.
For the Tenderer: Signature:
Name: Capaci:
97
Name and address of organisation:
Signature and name of witness: Signature
Name:
Date: Acceptance By signing this part of this Form of Oer and Acceptance, the Employer identified below accepts t Tenderer's Ofer In consideration tereof the Employer shall pay the Contractor the amount due i accordance with the Conditions of Contract identified in the Contract Data. Acceptance of t Tenderer's Oer shall form an agreement between the Employer and the Tenderer upon the ter and conditions contained in this Agreement and in the Contract that is the subject of this Agreement
The terms of the contract, are contained in Part 1
Agreements and Contract Data (which includes this Agreement)
Part 2 Part 3
Pricing Data Scope of Work
Part 4
Site Information
and drawings and documents or parts thereof, which may be incorporated by reference into Parts 1 t 4 above.
Deviations from and amendments to the documents listed in the Tender Data and any addend thereto listed in the Tender Schedules as well as any changes to the terms of the Offer agreed by t Tenderer and the Employer during tis process of oer and acceptance are contained in th Schedule of Deviations attached to and forming part f this Agreement No amendments t r deviations from said documents are valid unless contained in this Schedule which must be dul signed by the authorised representative(s) of both parties.
98
Te ndrr ndrr shall within two wks aftr rcivin rciving g a compltd copy of this Agrmn Agrmnt t including th Sedul of Dviations (if any), contact th Employr's agnt (whos dtails ar givn in th Contract t) to arrang th dlivry of any bonds, guarants proof of insuranc and any othr mntation to b providd in trms of th Conditions of Contract idntifid in th Contract Data at jst afr th th dat this Agrmnt coms into ct Failur to fulfil any of ths obligations in rdanc rdanc with thos th os trms shall constitut a rpudiation of this Agrmnt
Ntithstanding anything containd hrin this Agrmnt coms into fct on th dat whn th ederr rcivs on fully compltd original copy of this documnt including th chdul of eiations (if any). Unlss th ndrr (now Contractor) within fiv days of th dat of such rcipt tifes th Employr in writing of any rason why h cannot accpt th contnts of this Agrmnt i Agrmnt Agrmnt shall constitut a binding contract btwn th partis
For the Emplye:
Nae nd ddess f gnistin:
Stue nd nme f wtness
99
Schedule of Deviations
Notes: 1.
The extent of deviations from the tender documents issued by the Employer prir t the tender closing date is limited to those permitted in terms of the Conditio Tender.
2
A Tenderer's covering letter shall not be included in the final contract docu Should any matter in such letter, which constitutes a deviation as aforesaid bec the subject of agreements reached during the process of oer and acceptance t outcome of such agreement shall be recorded here.
3.
Any other other matt matter er aris arising ing from from the proces processs of ofer ofer and and accep acceptan tance ce eith either er as confirmation clarification or change to the tender documents and which it is agr by the Parties becomes an obligation of the contract shall also be recorded here.
4.
Any change or addition to the tender documents arising from the above agreemet and recorded here shall also be incorporated into the final draft of the Contract.
1
Subject ...................................................................................................... ........................................................................................................ Details ...................................................................................... ........................................................................................
2
Subject ...................................................................................... ...................................................................................... Details ....................................................................................... .......................................................................................
By the duly authorised representatives signing this Schedule of Deviations the Employer and th Tenderer agree to and accept the foregoing Schedule of Deviations as the only deviations from a amendments to the documents listed in the Tender Data and addenda thereto as listed in the Tender Schedules as wel as any confirmation clarification or change to the terms of the ofer agreed by th Tenderer and the Employer during this process of oer and acceptance lt is expressly agreed that no other matter whether in writing oral communication or implied during th period between the issue of the tender documents and the receipt by the Tenderer of a complete signed copy of this Agreement shall have any meaning or efect in the contract between the parties arising arisin g from this Agreement.
100
For the Employer:
For the Tenderer: Signature
Name
Capacity Name and address of organisation:
Name and address of organisation:
. . . . . . . . . . . .. . . . . . . . . . . .. . . . . . . . .. . . . . . . . ... Witness signature
........... ............ ............... .......
Witness name
Date
10
CONFIRMATION OF RECEIPT
The Tenderer, (now Contractor) identified in the Ofer part of this Agreement hereby conirms receipt from the Employer identified in the Acceptance part of this Agreeme Agreement nt of one fully f ully completed original copy of this Agreement including the Schedule of Deviations (if any) today: the ................................. (day) of .................................. (month) 20 20..... ..... (year) at .................................... (place) For the Contractor: Signature:
Name:
Capacity:
Signature and name of witness: witness: Signature:
Name:
102
Appendix2 General onditions of ontract for onstruction Works, Third Edition (2015) R FRM NTRT DT
Please note Please note that t hat the words in itali are guidance notes and do not form pa of the Contract Cont ract Data. CONTRT DT D T FR . The title
of the Works
PRT 1: DT RVIDED BY THE EMLYER CONDITINS F NTRT The General Conditions of Contract for Construction Works, hird Edition (2015) published by the South African Institution of Civil Engineering, Private Bag X200, Halfway House, 1685, is applicable to his Contract and is obtainable from www.saiceorg.za.
CONTRT SEIFI DT The following contract specific data, referring to the General Conditions of Contract for Construction orks, hird Edition (2015) are applicable to this Contract
/ Mm G G (2015), b by SAE q Cmpulsory Data lause 1.1.1.13: 1.13: The Defects Liability Period is .. m m m m
Lby q m "Not required. lause 1.1.1.14
Om m v m The time for achieving Practical Completion is ... m m m mmm
b q m mm k y, k y O m q The times for achieving Practical Completion for the portions as set out in the cope of Work are
For portion portion 1 within ...
by q The time for achieving Practical Completion of the whole of the Works is ...
3
Clause 1.1.1.15: The name of te Employr i ... The legal name of the Employe Clase 1.2.1.2 e addres of te Emloyr is ... ... The physical address, postal address, e-ma address an/or x number where the Employer will receive notices.
Claue 1.1.1.16: The nam of he mploy's Agent s ... ... The legal name of the Employer' Agen. Clause 1..1.2 The addrss of th Employers Agent ... ... The physical address, postal address, e-mail addr andor fa number where the Employer' Agent will receive notices.
Clause 1.1.1.26 The Pricing Stratey is ... er Re-measurement Contract or Fed Pce Contrac Clauss 5..1 and 5.8.1 Th non-workig days are ... Usua Sundays. The spcial nonworng days are 1. Usua the public holidays or a selection of the public holidays, holidays, for eample cei religious holidays religious The yea-end yea-end break break commenn commenng g on on . . . . and ending on . . .
Clause 5.3.1 The documentation reqired befor comencig with the Wrks are 1. Health and Safty Plan (Refr t Clause 4.3) 2. Iniial rogramme (Rfer to Clause 5.) 3 Secuit (Rfer to Clause 6.2) 4. lnuance (Refer to Clause 8.6) . Other requirements Clause 5.3.2: he ti to ubmit the documentatio required befe comncnt o the Wrks is ... dys.
A
reasonable time is 28 days
Clause 5.13.1: The penlty for failng o coplete he Work is ... Moneta value per day. if completion in poons is require·
The penalty for failing to complee portion 1 , a set ot in the Spe f Work is... followed by er poons as require
The pnalty for failng o coplete he whl of the woks is ... Clause 5.1.1: The reqiments for acievig Practical Compltion are ... State all the requirements for the Wor to reach a state of readiness, for the intended purpose and occupation without danger or und inconvenience to the Employe
0
O if comp/etion in poons is required·
The requirements for achieving Practical Completion for portn 1, as set ot in e Scope of Wok, ae ... Foowe by her poions as required
Claus 5.16.3: The latent deect perio periodd is . . Usua 10 years for vil engineen works, 5 years for builing works but sor for f or cein electca/ an mecanica/ engineen works.
Clause 6.5.1.2.3 The perceage allowance on the net cot o materials actually used in the completed work is Omit if te Contractor is to state te overea carges, oterse state te percentage value.
Te percentage allowanc on the grss remuneraion o te workn and foremn actualy engaed is .. Om if te Contracr is to state te t e overea carges, oterse state te percentage value. Clause 610.15 The percentage advance on materals no yet built into th rmanent Works is ... A percentage. The percentage advance n Plan no yet supplied to Site is ... A percentage (State "Not requie" if Plant is not fabte or store on oter paces tan te Site.)
Clase 6.10.3 he lmit of etention money is .. A moneta value usua ecie in conjunction wit te secu to be provie in terms of ause 6.2 1. or nancia stronger contractors te liability for te peormance peormanc e guarantee guarantee is usua a iger percentage wit te limit of retention money at a lower amoun
Clause 8.61.1.2 The vae o lant ad mterial supplied by the Employe t be nludd in the insuranc um is ... Moneta Monet a vaue. (State "Not Requred" if no Plant an maas are supplie by te t e Employe) Clause 8.6.1..3 Th amont to coer profesiona fees for repairng damae an loss to be includd in the insuance su is .. Monetary vaue. Clause 81.3 The limit o indemnity or lbility isuance i ... Moneta value. Clause 05.3 he nubr of Ad judicaton Board Member to be appointed s ... her one or tree.
105
Optional data On the statements app/icabe to the options chosen shoud be complete
Clause 1.3.2: fthe goveing law is not the aw o Soth A the The gove g overni rning ng law is .. ... The aw a w o the app/icabe con or jiction. Cuse 1.3.3 l the angage o o the Contract an or wtten commnications is not English, then: Te language of the Conract and for written ommuncations is .. ... The app/icabe angage Clause 3.2.3: the Employer' Agent mst get spec approval m the Employer to ca ot pa o his nctions or ties then:
Te Employer's Agent sall btan the specific proal o the Employr beore caryng ou any f i functions or utie aordng to e olowing Claues of he General Condons o ontrct 1. Clause ... Nmbe nction or an i reqire the ancial or other limit app/icab 2. Fer ases as reqire Pease note that getting spec approval rom the Employer will elay esion-making an this increase the competion com petion time an cost o the Works.
Clause 5.4.2 the access an possession o the Site is not exsive to the Contractor then: The acess nd possession o Site all no be exclusive to te Conractor u as set ou in th it Informtion. Cause 6.8.2 the vale o payment cetes cetes is to be aste by a Contract Pce Ast Ast actor then:
Te vale of the certifcates issued sal be adjusted in accordance with the Contract Pr Adjustment Scdule w the followng values the vae o x is not 0 1 then:
The value o "x ... The poon, expresse as a ea/ o n not sbect to astmen The vaues of the coeficiets re a = .. Labor = .. Contracr' eqment c = . . Maal = . e/ lease note that the total o all the coeents mst eqa/ 1. 0.
e indces for "L, ", "M and "F ae te folowing as published by Statisis South Africa (the inicess are pbshe by a rent organisation, or example S, then elete Saisics South inice
Arica an replace by the applicable pb/ishing pb/ishing organisation) . "L is the "Labour Indx an sall be e ... Give the name o the relevant labor inex as publisd in the ... Give the name o the statistica/ pb/ication where the inex can be on Give e the name o the relevant relevant 2. " is te Conractor's Equpment Index and sall be th ... Giv Contractor' Eqment inex and as publised in te ... Give the name o the statistica/ pb/ication where the inex can be on
06
3. "M is the "Mater "Material ials s Index and and shall shall be the the . . . Give the name of the relevant relevant maals index index and as publis published hed in the the . Give the name of the statistical pub/icaon where the index can
be foun 4 "F is the the "Fuel "Fuel Index Index and and shall shall be be the Give the name of the relevant relevant ue/ index as pu publ blish ished ed in the the . . . Give the name of the statistica/ statisti ca/ publication where the index can can be foun The base month is ... Month and year por to the closing of the tende Clause 6.8.3: f pce austments for vaations in the costs of specia/ mateals are aowed then: Price adjustments for variations in the costs of special materials are allowed Clause 8.6.1: f a completely rent type of insurance scheme scheme than the scheme, with additions,
stated in the General Conditions of Contract is require require then: Delete Clause 8.6.1 and replace it with . The requirements anor detas of the insurance scheme.
f the Employer is to arrange the insurance, details of the insurance should be given to aow the Contractor to arrange er insurance he might require Clause 8.6.1.2: f specia/ k insurance from Sasa is not required then: A Coupon Policy for Special Risks lnsurance issued by Sasria is not required. Clause 8.6.1.4: f ground suppo insurance is require then: The Contractor shall efect and maintain ground suppor insur insurance ance as set out in the Scope of Works. Clause 861.5: f additional insurance is required then In addition to the insurances required in terms of General Conditions of Contract Clauses 86.1.1 to 8.614 the following insurance is also required .. .. The requirements anor details of the additional
insurance. insuranc e. Clause 865: f insurance is to be ected with an insurance company company not necessa in South A
then: The insurances shall be efected with an insurance company registered in ... Any coun or name of
coun. Clause 105.1: f the pred method of dispute resoution is by standing audication instead of a-
hoc audication then: Dispute resolution shall be by standing adjudication. Clause 10.7.1: f the preferred method for the determination of disputes is arbitration instead of
litigation then: The determination of disputes shall be by arbitration
107
PART 2: DATA PROVIDED BY THE CONTRACTOR
Clause 1.11.9: The name of the Contractor is .. ... The legal name of the Contrac Clause 1.2.12: The address of the Contractor is ... ... The physical address, postal address, e-ma address and/or fax number where the Contractor will will receive noces. Clause 1.1.1.14: (Om if the Employer is to state the time for achieving Practical Completion. The time for achieving Practical Completion is ... A time measured from the Commencement Date. O if Practical Completion in poions is is require: The times for achieving Practical Completion for the portions as set out in the Scope of Work are: For portion 1 within . followed by er poons as require The time for achieving Practical Completion of the whole of the Works is ... Clause 6.2.1: The security to be provided by the Contractor shall be one of the following: Type of security
Contractor's
(lndicate (lndicat e if Value Added Tax is ecluded ecluded m the Contract Contract Sum and the
value of the Works for calculating the percentages)
(lndicate "Yes" or 'o'
Cash deposit of ... % of the Contract Sum Fixed Peormance Guarantee of . % of the Contract S aable aabl e Permance Permance Guarantee Guarantee of ... % of the Contract Sum for the t peod and . . . % of the Contract Sum for the second peo Retention of ... % of the value of the Works Cash deposit of . . . % of the Contract Sum plus retention of . . . % of the value of the Works. Fied Permance guarantee of ... % of the Contract Sum plus retention of ... %
of the value of the Works.
Vaable Peance Guarantee of % of the Contract Sum for the t peod and . . . % of the Contract Sum for the second peod plus retention of .. .... % of the value of the Works Note In the tandard for Uniformity in Construcon Procurement in Section 4444 it is stated tha 'etention monies that are held shall not exceed 10% of any amount due to a contrac Where guarantees of an insurance company or bank that are provided are equal to or greater than tha n 10% of the contract pce, the total amount of retention monies held shall not exceed 5% of the contract pce."
108
Clause 6.5.1.2.3: The percentage perce ntage · allowance on o n the net cost of materials actually used in the completed work is
Omit if the Empoyer is to state the overhead charges, otherse state the percentage va/ue. The percentage allowance on the gross remuneration of the workmen and foremen actually engaged is . the Employer is to state the overhead overhe ad charges, otherse state the percentage va/ue. Clause 6.8.3: f pce austments for a vaation in the costs of spea mateals is allowed then: The variation in cost of special materials is
Type of speal maal
Unit
Rate or pce
(The type of specia mateas may be liste eaving the unit and rate or pce to the tenderers to 1 in or the tenderers are aowed to state the e of specia maas the unit and the rate or price)
109
Appendix3 General Conditions of Contract r Construction Works, Third Edition (2015)
PRO FORMA PERFORMANCE GUARANTEE
For use with the General Conditions of Contract for Construction Works, Third Edition (2015).
GUAANTOR DETAILS AND DEFINITIONS "Guarantor means: ................................................... ..................................................... Physical address: ................................... ....................... ............... ... . "Employer means: ........................................................................ .......................................................................... "Contractor "Contrac tor means: ........................................... ......................... ............................ .................... .......... . "Employer's Agent means:
"Works means: ............................................................... ................................................................. .................................................... "Site means: .................................................... "Contract means: The Agreement made in terms of the Form of Oer and Acceptance and such amendments or additions to the Contract as may be agreed in writing between the parties "Contract Sum means: The accepted amount inclusive of tax of R ................ ........................ ................. ........... .. ........................................................................ Amount in words: ...................................................................... "Guaranteed "Guarant eed Sum means: mean s: The maximum aggregate agg regate amount amoun t of R .......................... ............... ................ ..... Amount in words: .............................................................. Type of Perormance Guarantee ................................. (Inse Vaable or Fixed) "Expiry Date means: ................................... (Give date) or any other later date set by the Contractor and/or Employer provided such instruction is received prior to the Expiry Date as indicated here.
CONTRACT DETAILS Employer's Agent issues: Interim Payment Certificates Final Payment Certificate and the Certificate of Completion of the Works as defined in the Contract.
110
1.
VAR VARIAB IABLE LE PER PERFOR FORMAN MANCE CE G GUA UARAN RANTEE TEE
1.1
Where a Variable Performance Guarantee has been selected, the Guarantor's liability shall be limited dring the following periods to diminishing diminishing amounts of the Guaranteed Guaranteed Sum as ollows:
111
From and including the date of signing the Performance Guarantee up to and including the date of the interim payment certificate certifying, for the first time, more than 50% of the Contract Sum R (Amount in words )
1.1.2
From the day following the date of the said interim payment certificate up to and including the Expiry Date, or the date of issue by the Employer's Agent of the Certificate of Completion of the Works, whichever occurs first R .............. ..............
(Amount in words ) 1.2
The Employer's Agent and/or the Employer shall advise the Guarantor in writing of the date on which the interim payment certificate certifying, for the first time, more than 50% of the Contract Sum, has been issued and the date on which the Certificate of Completion of the Works has been issued
2.
FIX FIXED ED PE PERFO RFORMA RMANC NCE E GUA GUAA ANT NTEE EE
2.1
Where a Fixed Performance Guarantee has been selected, the Guarantors liability shall be limited to the amount of the Guaranteed Sum
22
The Guarantors period of liability shall be from and including the date on which the Performance Guarantee is signed, up to and including the Expiry Date, or the date of issue by the Employer's Agent of the Certificate of Completion of the Works, or the date of payment in full of the Guaranteed Sum, whichever occurs first
2.3 3
The Employer's Agent and/or the Employer shall advise the Guarantor in writing of the date on which the Certificate of Completion of the Works has been issued CONDI CONDITIONS TIONS APPLI APPLICABLE CABLE TO VARI VARIABLE ABLE A AND ND FIXE FIXED D PERF PERFORMA ORMANCE NCE GU GUARANT ARANTEES EES
3.1 3.1.1
The Guarantor hereby acknowledges that Any reference in this Peformance Guarantee to the Contract is made for the purpose of convenience and shall not be construed as any intention whatsoever to create an accessory obligation or any intention whatsoever to create a suretyship
312 3.2
lts obligation under this Performance Guarantee is restricted to the payment of money Subject to the Guarantors maximum liability referred to in 11 or 21, the Guarantor hereby undertakes to pay the Employer the sum certified upon receipt of the documents identified in 3.2.1 to 32.3
111
3.21
A copy of a first written demand issued by the Employer to the Contractor stating tht payment of a sum certified by the Employer's Agent in an Interim or Final Payment Certifict has not been made in terms of the Contract and failing such payment within seven (7) calendar days, the Employer intends to call upon the Guarantor to make payment in terms of 322;
3.2.2
A first written demand issued by the Employer to the Guarantor at the Guarantors physicl address with a copy to the Contractor stating that a period of seven ( days has elapsd since the first written deman demand d iin n terms of 3.2.1 and the sum certified has still not been paid;
3.23
A copy of the aforesaid payment certificate which entitles the Employer to receive payment i ter terms ms of the Contract of the sum certified in 32
3.3
Subject to the the Guarantors Guarantors maximum maximum liability liability referred referred tto o in 11 or 2.1, the Guarantor undertak undertaks s to pay to the Employer the Guaranteed Sum or the full outstanding balance upon receipt of first written demand from the Employer to the Guarantor at the Guarantors physical addrss calling up this Performance Guarantee such demand stating that:
3.3.1
the Contract has been terminated due to the Contractors default and that this Performanc Guarantee Guarante e is called up in terms of 3.3 or
3.3.2
a provisional provisional or final final sequestration or liquidation court order has been granted against th Contractor and that the Performance Guarantee is called up in terms of 33; and
3.3.3
the aforesaid written demand is accompanied by a copy of the notice of termination and/or the provisional/final sequestration and/or the provisional liquidation court order
3.4
lt is recorded that the aggregate amount of payments required to be made by the Guarantor i terms of 32 and 3. 3 shall not exceed the Guarantors maximum liability in terms of 11 or 21. 21.
3.5
Where the Guarantor has made payment in terms of 33, the Employer Employ er shall upon upon the date of issue of the Final Payment Certificate submit an expense account to the Guarantor showing how all monies received in terms of this Peormance Guarantee have been expended and shall refund to the Guarantor any resulting surplus All monies refunded to the Guarantor i terms of this Performance Guarantee shall bear interest at the prime overdraft rate of the Employers bank compounded monthly and calculated from the date payment was made by th Guarantor to the Employer until the date of refund.
3.6
Payment by the Guarantor in terms of 3.2 or 3.3 shall be made within seven ( calendar days upon receipt of the first written demand to the Guarantor.
3 3
Payment by the Guarantor in terms of 33 will only be made against the return of the original Performance Guarantee by the Employer
3.8
The Employer shall have the absolute right to arrange his aairs with the Contractor in any which the Employer may consider fit and the Guarantor shall not have the right to claim manner which manner
112
his release from this Performance Guarantee on account of any conduct alleged to be prejudicial to the Guarantor. 3.9
The Guarantor chooses the physical address as stated above for the service of all notices for all purposes in connection herewith
3.10 This Performance Guarantee is neither negotiable nor transferable and shall expire in terms of 112 or 22, where afer no claims will be considered by the Guarantor. The original of this Guarantee shall be returned to the Guarantor after it has expired. 311 31 1 This Thi s Performance Guarantee, wit with h the required demand notices in terms of 32 or 33 33 shall be regarded as a liquid document for the purposes of obtaining a court order 3.12 Where this Performance Guarantee is issued in the Republic of South Africa the Guarantor hereby consents in terms of Section 45 of the Magistrates' Courts Act No 32 of 1944, as amended to the jurisdiction of the Magistrate's Court of any district having jurisdiction in terms of Section 28 of the said Act notwithstanding that the amount of the claim may exceed the jurisdiction of the Magistrate's Court Cou rt
Signed at
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Date ...................................................... ...................................................... Guarantor's signatory () Capacity......................................................... Capacity ......................................................... Guarantors signatory (2) Capacity
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Witness signatory (1) Witness signatory (2)
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113
Appendix4 General Conditions o Contract r Construction Works, Third Edition Editio n (2015) PRO FORMA DISCLOSURE STATEMENT
Please note !hat words in itali within brackets are items which shou/ be state
(Date)
(Name : (Name) my (Name) my' g (Name) D S m wg vb v ad-hoc/staning) j B Mmb bv-m . I w f f j B R g m by m j 1 by •
w m my w f g m w ff my my.
•
v v vvm w j
•
v y f j.
•
1
m y my by my my g.
•
1
v y f w my my'
g •
1
v v w y v mmb
f my my g w my my. •
1
mmy y g bv
w my my b v m Shou there be any eviation from the foregoing statemen, etas sha be given. 1
f I m w w
g m. Name in ull Signature: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Appendix5 Gneral Conditions of Contract fr Construction Works, Third Edition (2015) PRO FORMA ADJUDICATION BOARD BOAR D MEMBER AGREEMENT Please note that words in itali within bracket brackets s are items which shou/ be state
This Agreement is entered into between: Adjudication Board Member (Name, physical address, postal address, e-ma address, fax numbe telephone number and mobile numbe)
Contractor (Name, physical address, postal address, e-mail address, fax numbe telephone number and mobile numbe)
Employer (Name, physical address, postal address, e-mail address, fax numbe telephone number and mobile numbe)
The Contractor and the Employer will hereinaer be collectively referred to as the Parties. The Parties entered into a Contract for (name of projec which provides that a dispute under or in connection with the General Conditions of Contract for Construction Works, Third Edition (2015) must be referred to (a-hoc audicatio/standing audication). audication). The undersigned natural person has been appointed to serve as Adjudication Board Member and together with the undersigned Parties agree as follows: 1 The Adjudication Board Member accepts to perform his duties in accordance with the terms of the Contract, the General Conditions of Contract fr Construction Works' Adjudication Board Rules and this Agreement. 2 The Adjudica Adjudicator tor undertake undertakess to remain remain independe independent nt and impartia impartiall of the Contracto Contractor, r, Employer and Employers Agent Agent for the duration of the Adjudication Board proceedings. 3 The Adjudication Board Member agrees to serve for the duration of the Adjudication Board proceedings 4
The Parties may at any time, without cause and with immediate eect, jointly terminate this Agreement
5.
Unless the Parties agree, the Adjudication Board Member shall not act as arbitrator or representative of either Party in any subsequent proceedings between the Parties under the Contract. No Party may call the Adjudication Board Member as a witness in any such subse subs equent proceedings.
115
6. The standing standing Adjudicati Adjudication on Board's Board's duties duties shall shall end upon the Adjudication Adjudication Board Board Member(s) receiving notice from the Parties of their joint decision to isband the Adjudication Board. 7.
The Adjudic Adjudication ation Bo Board ard Member Member s shall hall be paid in respect respect of time spent spent upon o orr in connection with the adjudication including time spent traveling: 7.1 A monthly retainer of (amoun for (number) of months, and/or 7.2 A daily fee of (amoun based on a (number) hour day and/or 7.3 An hourly fee of (amoun, and/or 7.4 A non-recurrent appointment fee of (amount) which shall be accounted for in the final sums payable.
8. The Adjudica Adjudication tion Boar Board d Member's Member's expense expenses s incurred incurred in adj adjudicat udication ion work work shall be reimbursed at cost. On submission of an invoice for fees and expenses to the Parties the Parties shall pay the full amount within 28 days of receipt of the invoice. Late payment of such invoice shall attract interest at prime plus 3% points compounded monthly at the prime rate charged by the Adjudication Board Member's bank.
This Agreement is entered into by:
Contractor's Contracto r's signature: . . . . . . . . . . . . . . . . . . . . . . Contractor's name: . . . . Place: . . . . . . . . . . . . . . . . . . . . . . . . . Date: .......................................... .......................................... Employer's signature: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Employer's name: . . . . . . . . Place: . . . . . . . . . . . . . . . . . . . . . Date: ............................................ ............................................ Adjudication Board Member's signature: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . Adjudication Board Member's name: . . . . . Place: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Date: .......................................... ..........................................
116
General Conditions of Contract for Construction Works Third Edition (2015) ALPHABETICAL SUBJECT INDEX Main headings are shown in bold Heading
Page
Acceleration
25
Acceleration instead of extension of time
30
Access not exclusive
22
Access to and possession of Site
22
Access to the Site
22
Access to the Works
52
Access to the Works
52
Additional compensation or providing facilities
18
Additional cost due to ambiguity
10
Adjudication
82
Adjudication Board Rules
89
Adjustment in rates and/or prices
44
Adverse physical conditions
8
Adverse physical conditions
8
Ambiguity or discrepancy
1O
Ambiguity or discrepancy
10
Amicable settlement
81
Amicable settlement failure
81
Appendix Append ix 1 : For of Ofer and Acceptance
97
Appendix 2: Contract Data Appendix 3: Perormance Guarantee
103 110
Appendix Appendi x 4: Disclosure Statement
114
Appendix 5: Adjudication Board Member Agreement Agreement
115
Application of the Contract Price Adjustment Factor
44
Appointment Appointme nt
84
Appointment of dispute resolving persons
84
Approval
34
Approval means no relief of Contractor's responsibilities
24
Approval of the programme
24
Approval only by Final Approval Certificate
35
itration Arbitrator and courts power regarding a ruling or a decision
83
85
117
Heading
Page
Assignment
10
Assignment
10
Assignment in the case of termination
15
Assignment of benefit of subcontractors
15
Authority of Employer's Agents Representative Authority of representatives
12
5
Available data
8
Available data and infrmation
8
Basis of payment for dayworks
39
Binding amicable settlement
81
Care of the Works
61
Care of the Works
61
Certificate of Completion
33
Changes in quantities
38
Claim as a consequence of suspension
29
Claim for excepted risks
63
Clearance of Site
34
Clearance of Site on completion
34
Commencement of the Contract
21
Commencement of the Contract
21
Commencement of the Works
21
Commencement of the Works
21
Common provisions
84
Competent employees
19
Competent employees
19
Completion
31
Compliance with applicable laws
14
Concessions not to constitute waivers
6
Consequences of completion
33
Consequences of failure of retesting Plant
56
Consequences of Practical Completion
32
Construction Equipment
19
Construction Manager
20
Construction Manager to receive instructions
20
Contents of the programme
23
Continuing validity
85
Continuing validity
Contract Price Adjustment Schedule Contractor failing to select or provide security
85 86
36
118
Heading Contractor to be compensated Conractor to carry out additional work
Page 16 9
Contractor to efect insurances obtainable
67
Contractor to give eect to drawings etc
27
Contractor to give notice timeously
26
Contractor to produce proof of payment
67
Contractor to search for defects
57
Contractor's claim
76
Contractor's claim
76
Contractors completion statement
50
Contractors copyright
7
Contractors employees
19
Contractors failure to comply
43
Contractors failure to comply with notice period
78
Contractors Contr actors liability for own design errors
14
Contractors liability unaected by selection of subcontractor subcontractors s Contractors responsibility for consents
15 16
Contractors right to claim
9
Contractors right to court proceedings
84
Contractors right to refer to Employers Agent
13
Contractors superintendence
20
Contractors superintendence
20
Corrections to payment certificates
50
Cst of making good of defects
58
Cst of test specimens and tests
53
Cour proceedings
84
Damage or physical lss
61
Dayworks
39
Dayworks statement
41
Default of the Contractor in compliance with Employers Agents
56
orders
Defective Plant, materials and work
55
Defects
57
Definition of "materials
45
Definitions
1
Definions
1
Delay by Employer to take delivery of Plant
55
Delay in delivering valuation
39
Delays atributable to the Employer
28
119
Heading
Page
Delays attributable to the Employer
28
Delays in giving possession
22
Delivering and applying the valuation
39
Delivery, dissatisfaction with and payment of payment certificate
48
Delivery of notices
5
Delivery of Plant to Site
54
Delivery of security
36
Details to be recorded
40
Dierent dates of Practical Completion
34 34
Disagreement with Adjudication Board's decision
82
Disagreement with Adjudication Board's decision
82
Dispute notice
80
Dispute notice
80
Dispute resolution by ad-hoc adjudication
82 82
Dispute resolution by amicable settlement
81 81
Dispute resolution by standing adjudication Dispute to be referred
82 82
Dissatisfaction claim
79 79
Dissatisfaction claim
79
Documents to be provided timeously
27
Drawings and instructions
26
Employer to approve insurance policy
67
Employers Agent as witness
84
Employers agent for health and safety
11
Employers Agent to approve Contractors designs and drawings
2 7
Employers Agent to consult with Contractor and Employer
11
Employers Agents authority to delegate
13
Employers Agents failure to comply timeously
27 27
Employers Agents instructions
14
Employers Agents intention to measure
43
Employers Agents Representative
12
Employers Agents ruling on Contractors claim
79 79
Employers Agents ruling on dissatisfaction
80 80
Employers copyright
80
7
Employers responsibility for approval
16
Engagement of employees
19
Examination of the Works
54.
Examination of work before covering up
54
Excepted risks
62
120
Heading
Page
Excepted risks
62
Excessive loads and traic
60
Exchange of reports on tests
54
Existing structure destroyed
69
Extended period for claim
77
Exension of time fr Practical Completion
30
Extension of time for Practical Completion
30
Extent of Contractor's obligations
14
Extent of indemnification
5
Exent of obligations and liability
14
Facilities for others
18
Facilities r others
18
Failure to claim dissatisfaction
79
Failure to comply with a decision
83
Failure to give a decision in time
83
Final Approval Certificate Final Payment Certificate
34
17
Fossils etc
17
m
11
Function of the Employers Agent
11
Further drawings and instructions
26
50
Further notices
9
General provisions
6
Giving of notices and payment of fees Governing law
16 6
ldentification of Plant and materials
45
Implementation of decision
82
lncreased costs
69
lndemnifications
63
lndemnity by Contractor
60
lndemnity by Employer
64
Information in respect of employees
19
lnjury to persons and damage to property
63
lnspection of the Site
8
lnstructions
26
lnstructions from Employers Agent only
14
lnsurances
65
lnsurances lnsuran ces to be eected
65
121
Heading Interim payments
Interpretations lssue of Certificate of Practical Completion Language
Page 46 5 32 6
Latent defects liability
35
Legal provisions
14
Liability for subcontractors
15
Liability of deductibles
66
Limitation of authority of Employer's Agents Representative
12
Limitations on delegations
13
Making good and retesting of Plant
55
Making good of defects in Defects Liability Period
57
Marginal notes or headings
6
Measurement of the Works
42
Method of measurement
44
Night work No approval by vesting
25 46
No reference of amicable settlement outcomes
81
Nomination of Employers Agents Representative
12
Non-working times
26
Non-working times
26
Notice for work during non-working times
26
Notice to be given when ready for testing
54
Notices and fees
16
Notices to trustee/liquidator
73
Notices to trustees/liquidators
75
Obtaining information
8
Occupation by the Employer
33
Orders for variations to be in writing
37
Other rights of the Contractor
75
Over-riding Over-ridi ng provisions
70
Patent and protected rights
17
Patent rights
17
Payment if Contract is terminated
69
Payment of retention money
48
Payment to complete the Works
73
Payment to Contractor
36
Payment to Contractor
36
Payments
46
122
Heading
Page
Payments r rights
17
Penalty r delay
31
Penalty for delay
31
Pollution prevention and interferences interferences
60
Practical Completion
31
Prices for protection of the Works
60
Prime cost sums
42
Proceeding with the Works Wor ks after payment
29
Pro Formas
96
Programme
23
Programme of Works
23
Progress of the Works
24
Prohibition on removal of Construction Equipment
19
Prohibition on removal of Plant and materials
45
Proof of good standing
14
Protection of the Works
60
Protection of the Works
60
Protection of the Works Works during during suspension
29
Provisional sums
41
Provisional sums and prime cost sums
41
Provisional/prime cost sums and contingency allowance
42
Qualifications of the Employer's Agent
11
Qualifications of the Employer's Emplo yer's Agent
11
Quality of Construction Equipment
52
Quality of Construction Equipment
52
Quality of Plant, workmanship and materials materials
52 2 5
Quality of Plant, workmanship and materials Quantities
42
Quotations for materials
40
Rate of progress
24
Rates Rate s and prices final and binding
44
Reasoned award
84
Records of facts and circumstances circumstances for claim
77
Reduction of penalty
31
Reference to arbitration
83
Reference to court
84
Relevant adjustments to General ltems
30
emedy on Contractors Contractors failure to carry out required work Remedy on Contactors failure to insure
58 67
123
Heading
Page
Removal of improper work and materials
56
Removal of incompetent employees
20
Removal of items and payment to Contractor
74
Reporting accidents
64
Reporting of accidents
64 64
Requirements relating to subcontractors
66
Retention money
48
Review and adjustment of the programme
24
Rules for adjudication
82
Rules for arbitration
84
Ruling in full force
81
Samples and testing
53
Samples of materials
53
Search for defects
57
Security
36
Selection of subcontractors in consultation with Employer Set-off and delayed payments
15
Singular and plural, masculine and feminine
49
6
Some reasons for extension of time
30
Specific approval of the Employer required
11
Subcontracting
15
Subcontracting whole Contract
15
Subcontractor to be approved
15
Subsequent changes in legislation
44
Supplementary Agreement
6
Supporting documents
42
Suspension lasting more than 84 days
29
Suspension of the Works
28
Suspension of the Works by Contractor
28
Suspension of the Works by Employer's Agent
28
Technical data
10
Technical data
10
Termination Terminatio n by Contractor
73
Termination by Employer
70
Termination by the Contractor
73
Termination by the Employer
70
Termination due to external events
68
Termination due to internal events
68
Termination of Contract
68
124
Heading
Page
Test specimens from the t he Works
53
Tests
53
Time calculations
21
Time calculations
21
Time for Practical Completion
22
Time for Practical Completion
22
Time to instruct commencement commencement of the Works
22
Unacceptable documentation
21
Uncovering and making openings
55
Urgent remedial work
58
Urgent remedial work
58
Validity of performance performance guarantee
36
Valuation of material brought onto Site
47
Valuation of variations
38 38
Value of variations
38 38
Variation in cost of special materials Variations
44
Variations
37
Variations exceeding 15 per cent
51
Variations exceeding 15 per cent
51
Vesting of Plant and materials
45
Vesting of Plant and materials
45
Work to be measured
43
Works to comply to Employer's Agents instructions instructions
14
37
