13286167 fidic iv design build turnkey contract

8/8/2019 13286167 FIDIC IV Design Build Turnkey Contract

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ARTICLES OF AGREEMENT

A CONTRACT made _________day of ______________20____________between the Government of Malaysia(hereinafter called the Government) of the one part and

______________________of (or whose registered office is situated at)____________________ (hereinafter called the Contractor) of the otherpart.

WHEREAS

(1) The Government is desirous of obtaining the design, construction,equipping* and maintenance* of

____________________________________________________________________________# (hereinafter referred to as the Works) at____________________________ for which Works the Governmenthas issued to the Contractor its requirements (hereinafter referred to asthe Governments Requirements) and instructed the Contractor todesign the Works and to submit proposals including drawings andspecification for carrying out the Works:

(2) The Contractor has examined the site and has submitted proposals

including drawings and specification for carrying out the Works(hereinafter referred to as the Contractors Proposals):

(3) The Contractor has made an estimate of the sum which he will requirefor carrying out that which is necessary for completing all the Worksin accordance with the Conditions of Contract and has submitted ananalysis of that sum (hereinafter referred to as the Contract SumAnalysis):

(4) The Government has examined the Contractors Proposals and the

Contract Sum Analysis and subject to the Conditions of Contract, issatisfied that they appear to meet the Governments Requirement.


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NOW IT IS HEREBY AGREED AS FOLLOWS :-

Article 1

For the consideration mentioned in Article 2 the Contractor shall upon andsubject to the Conditions of Contract both complete the design for the Worksand carry out construction of the Works.

Article 2

The Government hereby covenants to pay to the Contractor the sum ofMalaysian Ringgit : _____________________i.e. RM

________________(hereinafter referred to as the Contract Sum) or such

other sum as shall become payable hereunder at the times and in the mannerspecified in the Conditions of Contract.

Article 3

The Governments Requirements, the Contractors Proposals includingdrawings and specifications, the Contract Sum Analysis and the ContractSchedule of Rates have been signed by the Parties and are identified inAppendix 3, 4, 5 and 6 to the Conditions of Contract.

Article 4

The following documents (hereinafter collectively called the ContractDocuments) shall be deemed to form and be read and construed as part ofthis Contract :

(i) the Articles of Agreement;(ii) the Conditions of Contract and the Appendices annexed thereto;(iii) the Governments Requirements including Instructions to Tenderers;

(iv) the Contractors Proposal including drawings and Specifications;(v) the Contract Sum Analysis;(vi) the Contract Schedule of Rates (if any);(vii) the Form of Tender; and(viii) the Letter of Acceptance.


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As witness our hands the day and year first above written.

Signed by the said*

_____________________________________________________________

Contractors Signature

___________________________________ Name in full______________________

in the presence ofIn the capacity of

__________________

Name : ________________________

Address : ______________________

______________________________

Description : ___________________

I.C. No. _______________________

Signed by the ++

______________________________________________________________

for and on behalf of the Government Officers Signature


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Name in full______________________

______________________________in the presence of

Name : ________________________

Address : ______________________

______________________________

Designation : ___________________


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CONDITIONS OF CONTRACT

1. Interpretation, definition etc.

1.1 Unless otherwise specifically stated a reference in the Articles ofAgreement, the Conditions and the Appendices to any clause meansthat clause of the Conditions.

1.2 The Articles of Agreement, the Conditions and the Appendices are tobe read as a whole and the effect or operation of any article or Clausein the Conditions or item in or entry in the Appendices shall, unlessotherwise specifically stated, be read subject to any relevantqualification or modification in any other article or any of the clausesin the Conditions or item in or entry in the Appendices.

1.3 Unless the context otherwise required or the Article or the Conditionsor an item in or entry in the Appendices specifically otherwise

provides, the following words and phrases in the Articles ofAgreement, the Conditions and the Appendices shall have themeaning given below or as ascribed in the article, clauses or Appendixitem to which reference is made :

(a) Appendices means Appendix 1, 2#, 3, 4, 5, 6, 7 and 8 to theConditions as completed by the parties;

(b) Articles of Agreement means the Articles of Agreement towhich the Conditions are annexed, and references to any recitalare to the recitals set out before the Articles;

(c) Conditions means the Conditions of Contract including theSpecial Conditions as listed below :

* Clause 59 - Maintenance of Works and Services

* Clause 60 - Direct Payments and ConsultancyAgreement with to ContractorsConsultants* Clause 61 - Bills of Quantities* Clause 62 - Advance Payment* Clause 63 - ..;


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(d) Contractor means the person named as Contractor inthe Articles of Agreement and includes the Contractorsheirs, executors, administrators, permitted assigns,successors and duly appointed representatives;

(e) Contractors Proposals means the proposals as per SecondRecital;

(f) Contract Sum means the sum stipulated in Article 2 of theArticles of Agreement;

(g) Contract Sum Analysis means the analysis of the ContractSum prepared by the Contractor for the purposes of thisContract as referred to in the Third Recital;

(h) Contract Schedule of Rates means the schedule of ratesagreed between the Contractor and the Government prior to theexecution of the Contract, for the purpose of valuation ofvariations under the Contract;

(i) Date for Completion means the date fixed and stated inAppendix 1 or any date fixed under Clause 45 as providedunder Clause 41.1;

(j) Date for Possession means the date stated in Appendix 1;

(k) Date of Tender means the date fixed for submission ofTender as stated in Appendix 1;

(l) Defects Liability Period means the period stated in Appendix1 or if none stated the period is twenty four (24) months fromthe date of practical completion certified by the P.D. as

provided under Clause 41.2;

(m) Site means the lands and other places on, under, in or throughwhich the Works are to be executed and any other lands or

places provided or approved by the Government for workingspace or any other purpose as may be specifically designatedunder this Contract or subsequently agreed by the P.D asforming part of the Site;


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(n) Project Director or P.D. means *_____________________________________________________________ and his successors in office. Provided that duringthe continuance of this Contract any successor in office of suchP.D. shall not disregard or overrule any decision, approval,concurrence or direction given to the Contractor in writing byhis predecessor unless he is satisfied that such action will notcause any pecuniary loss to the Contractor or unless such action

be ordered as a variation pursuant to Clause 27 of theseConditions;

(o) P.D.s Representative means any person or persons deputedor authorised from time to time by the P.D. to perform any or

all of the duties of the P.D;

(p) Works means the works briefly described in the First Recitaland referred to in the Governments Requirements and theContractors Proposals and shall include both permanent andtemporary works;

(q) The terms concurrence and approved wherever used in thisContract means written consent or approval by the Governmentor the P.D. as the case may be, pursuant to a written request orsubmission made by the Contractor;

(r) The term instructed wherever used in this Contract meansinstructed in writing by the P.D. (including subsequentconfirmation of previous verbal instruction by the P.D.).

1.4 Words importing the singular shall also include the plural and viceversa.

1.5 The marginal headings or notes in these Conditions of Contract shallnot be deemed to be part thereof or be taken into consideration in theinterpretation or construction of this Contract.


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quality assurance systems for his approval before thecommencement of the Works.

2.4.2 The parties hereby agree that compliance with such approvedquality assurance system shall not relieve the Contractor fromany of his other duties, obligations or liabilities under theContract and neither shall the P.D. or the government be liablein any manner whatsoever notwithstanding the approval by theP.D. of the said system.

2.5Where any Act of Parliament, Regulation or Bye-law requires thata separate check of the design or a test shall be carried out prior to theconstruction or loading of any permanent and temporary works theContractor shall arrange and carry out such check or test at his own

costs.

2.6The Contractor shall take full and unequivocal responsibility forthe safety of the design and for the adequacy, stability and safety of allsite operations and methods of construction.

2.7.1 (a) From the commencement of the Works to the date of theissuance of the Certificate of Practical Completion for thewhole of the Works the Contractor shall save as in paragraph(b) and sub-clause 2.7.2 hereof take full responsibility for thecare of the Works and for materials, plant and equipment forincorporation therein and shall at his own cost replace, repairand make good any damage, loss or injury to the same so that atcompletion the Works shall be in good order and condition andin conformity in every respect with the requirements of theContract an the P.D.s instructions. The Contractor shall also

be liable for any damage to the Works occasioned by him in thecourse of any operations carried out by him for the purpose ofcomplying with his obligations under Clause 48.1 hereof.

(b) If the P.D. issues a Certificate of Practical Completion orCertificate of Partial Occupation for any Section or part of the

permanent works the Contractor shall cease to be responsiblefor the care of that Section or part from the date of issue of thatCertificate of Practical Completion or Certificate of PartialOccupation when the responsibility for the care of that Section


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or part shall pass to the Government. Provided always that theContractor shall remain responsible for any damage to suchcompleted work caused by or as a result of his other activitieson the Site.

(c) The Contractor shall take full responsibility for the care of anyoutstanding work and materials, plant and equipment forincorporation therein which he undertakes to finish during theDefects Liability Period until such outstanding work has beencompleted.

2.7.2 Risks for which the Contractor is not liable are loss and damage to theextent that they are due to :

(a) the use or occupation by the government, his agents, servants orother contractors (not being employed by the Contractor) of any

part of the permanent works;

(b) riot, war, invasion, act of foreign enemies or hostilities(whether war be declared or not);

(c) civil war, rebellion, revolution, insurrection or military orusurped power;

(d) ionizing radiations or contamination by radioactivity from anynuclear fuel or from any nuclear waste from the combustion ofnuclear fuel, radioactive, toxic, explosive or other hazardous

properties of any explosive nuclear assembly or nuclearcomponent thereof;

(e) pressure waves caused by aircraft or other aerial devicestravelling at sonic or supersonic speeds and

(f) any such operation of the forces of nature as an experiencedContractor could not foresee or reasonably make provision foror insure against.

2.8.1 If any accident, failure or other event occurs due to any causewhatsoever to, or in connection with the Works or any part thereofeither during the execution of the Works or during the Defects


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Liability Period the Contractor shall immediately report the accident,failure or event to the P.D., and unless otherwise directed by the P.D.generally or in any particular respect conduct a full investigation intothe said accident, failure or event in order to determine the cause orreason for the accident, failure or event and submit a report thereon tothe Government and the P.D. together with his proposals for remedialworks in respect thereof.

2.8.2 The Contractor shall not, however, cause remedial work to be carriedout in respect thereof until directed to do so by the P.D. in writing.And upon being so directed the Contractor shall proceed with theremedial works within fourteen (14) days from the date of suchdirection.

2.8.3 Where the Government, its employee or any person or body appointedor authorised by it carried out any investigation in relation to anyaccident, failure or other event which has occurred to, in or inconnection with the Works or any part thereof for the purpose ofdetermining the cause or reason for the said accident, failure or event,the Contractor shall render all such necessary assistance and facilitiesas may be required by the Government, its employee or such personor body including the giving of access to all specification, designs,records or other available information relating to the Works.

2.8.4 If by reason of any accident, or failure, or other event occurring to inor in connection with the Works, or any part thereof, either during theexecution of the Works or during the Defects Liability Period, anyremedial or other work or repair shall, in the opinion of the P.D. beurgently necessary for the safety of the Works or the public and theContractor fails to immediately do such work or repair, theGovernment may employ and pay other persons to carry out suchwork or repair as the P.D. may consider necessary. If the work orrepair so done by the Government is work which, in the opinion of the

P.D., the Contractor was liable to do at his own expense under theContract, all costs and charges properly incurred by the Governmentin so doing shall be recoverable from the Contractor by thegovernment, or may be deducted by the Government from any moniesdue or which may become due to the Contractor. Provided alwaysthat the P.D. shall, as soon after the occurrence of any such


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emergency as may be reasonably practicable notify the Contractorthereof in writing.

2.9.1 The Contractor shall only employ local consultants for the design andsupervision of the Works and the management of the Project. Underno circumstances will the Contractor be permitted to employ foreignconsultants except where there are no local consultants with therequired expertise and special exemption has been obtained from theGovernment, prior to the execution of the Contract.

2.9.2 The Contractor shall submit a complete list of consultants to beemployed for the Works stating their job category and theirobligations. The Consultants shall be suitably qualified andcompetent and shall be registered with their respective professional

Boards.


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2.9.3 The Contractor shall not employ any other professionals (other thanthose named in his proposal) without the prior consent of the P.D.The Contractors attention is also drawn to the fact that the saidconsultants shall be retained throughout the Contract Period for thesupervision of the Works and they shall not be discharged without theconsent of the P.D. All as-built drawings required for the Works shall

be certified by the relevant consultant.

2.10.1 The Contractor shall employ Bumiputera organisations and/orprofessionals to carry out specific portion of the Works on a Sub-Contract basis as defined under Clause 31 and the amount of all these

participation shall be at least 30% of the total Contract Value.

2.10.2 It is also required that :

(a) the Bumiputera organization shall be from the list of registeredContractors maintained by the Contractors Service Centre ofthe Ministry of Entrepreneurial Development Malaysia or thelist of registered suppliers and professional firms maintained bythe Ministry of Finance Malaysia, whichever is applicable;

(b) within fourteen (14) days from the receipt of the Letter ofAcceptance, the Contractor shall submit to the P.D. for hisapproval a list of works, supply or services which he proposesto sub-let to Bumiputera organizations in accordance with thisClause. The P.D. shall within twenty-one (21) days afterreceipt of this list

(i) approve the list in writing; or

(ii) reject the list in writing with reasons and/or requestmodifications; and/or

(iii) request the Contractor to supply further information toclarify or substantiate the list;

provided that if none of the above actions is taken within thesaid period of twenty-one (21) days the P.D. shall be deemed tohave approved the list as submitted.


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2.10.3If the Contractor fails to fulfil the requirements of this Clause, theGovernment reserves the right to :-

(i) reallocate any portion of the Works to Bumiputeraorganisations for which the Contractor shall remain fullyresponsible for any delay or failure on the part of theBumiputera organisations; or

(ii) Take disciplinary action against the Contractor by suspensionor cancellation of the Contractors resignation as a GovernmentContractor.

2.10.4Any action, decision, instruction or consent taken, made or given by

the Government or the P.D. as the case may be under thisClause shall not in any way whatsoever relieve the Contractorof any of his obligations under this Contract.

2.11.1(a) Within fourteen (14) days from the receipt of the Letter ofAcceptance the Contractor shall submit to the P.D. for hisapproval a programme showing the order in which he proposesto carry out the Works having regard to the provisions ofClause 39.3; and

(c) the Contractor shall also provide in writing for the informationof the P.D. a general description of the arrangements andmethods of construction which the Contractor proposes to adoptfor the carrying out of the Works.

2.11.2The P.D. shall within twenty-one (21) days after receipt of theContractors programme :

(a) approve the programme in writing; or

(b) reject the programme in writing with reasons and/or requestmodifications; and/or

(c) request the Contractor to supply further information to clarifyor substantiate the programme or to satisfy the P.D. as to its


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reasonableness having regard to the Contractors obligationsunder the Contract,

2.11.3 The Contractor shall upon receipt from the P.D. any requestunder sub-clause 2.2(b) or (c) of this Clause resubmit a modified

programme or provide further information as requested.

2.11.4 If at any time it should appear to the P.D. that the actualprogress of Works does not conform to the approved programmereferred to hereinbefore the Contractor shall produce, at the request ofthe P.D., a revised programme showing the modifications to theapproved programme necessary to ensure completion of the wholeWorks within the time for completion provided for in Clause 41hereof or extended time granted pursuant to Clause 45 hereof.

2.11.5 The submission to and approval by the P.D. or the P.D.srepresentative of such programme or the furnishing of such particularsshall not relieve the Contractor of any of his duties or responsibilitiesunder this Contract.

3. P.D.s rights to take action

Notwithstanding any provision in this Contract, it is hereby agreedthat :-

i) the right to take action and/or initiate proceedings on behalf ofthe government in respect of any matter which arises out of the

provisions of Clauses 40, 45, 54, 55 and 56 where appropriate,is expressly reserved to the Officer named in Appendix 1, and

ii) the power of the P.D. to issue instructions requiring a variationunder Clause 27.2 shall be subject to the financial limits as setout in Appendix 1 hereto. If the P.D. is required to issue an

instruction requiring a variation under Clause 27.2 which ismore than the financial limits set out in Appendix 1, the P.D.shall obtain the prior written approval of the relevant authoritiesof the Government.


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4. P.D.s Instructions

4.1 The Contractor shall, subject to Clauses 4.2 and 27.2, forthwithcomply with all instructions issued to him by the P.D. in regard to anymatter in respect of which the P.D. is expressly empowered by theConditions to issues instructions, save that where such instruction isone requiring a variation within the meaning of Clause 27.1(b), theContractor need not comply to the extent that he makes reasonableobjection in writing to the P.D. to such compliance.

4.2 If within seven (7) days after receipt of a written notice from the P.D.requiring compliance with an instruction the Contractor does notcomply therewith, then the P.D. may employ and pay other persons to

execute any work whatsoever which may be necessary to give effectto such instruction and all costs incurred in connection with suchemployment including on-cost charges calculated by applying thePercentage of On-cost charges stated in Appendix 1 to the amountincurred, shall be deducted by him from any monies due or to becomedue to the Contractor under this Contract, failing which suchdeductions shall be recovered from the Performance Bond or as a debtdue from the Contractor.

4.3 All instructions issued by the P.D. shall be in writing.

5. Notices

All written notices or instructions to the Contractor under the terms ofthe Contract shall be left at his office on the Site and anacknowledgement receipt thereof is obtained from the ContractorsProject Manager or shall be sent to the Contractors principal place of

business.

6. Custody and supply of Contract Documents

6.1 The Contract Document shall be prepared in an original and aduplicate copy. The original copy of the Contract Document shallremain in the custody of the P.D. and shall be made available at allreasonable times for the inspection of the Contractor. The duplicatecopy shall be kept by the Contractor.


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6.5 After the practical completion of the Works but within three (3)months after that date, the Contractor shall without further charge tothe Government supply for the retention and use of the P.D. two (2)sets of drawings stored in CD-ROMs and four (4) sets of suchdrawings, documents, information and manuals showing or describingthe Works as built, and concerning the maintenance and operation ofthe Works, including any installations comprised in the Works, asmay be specified in the Contract Documents.

6.6 It is expressly agreed between parties that all maps, drawings, reports,specifications, calculations, designs, and all other relevant documents

pertaining to this Contract shall be the absolute property of thegovernment and shall not be utilised or retained by the Contractor for

any purpose other than with the permission of the Government.

6.7 The Contractors plans and specifications shall use the S.I. Units(System International DUnites) of measurement, commonly knownas the metric system as this is the requirement of all approvingauthorities in Malaysia.

7. Sufficiency of Contract Documents

7.1 The Contractor shall provide everything necessary for the properexecution of the Works until its completion according to the trueintent and meaning of the Contract Documents taken together whetherthe same way or may not be particularly shown or described providedthe same can be reasonably inferred therefrom.

7.2 Except if and to the extent provided under this Contract, the Articlesof Agreement, the Conditions and the Appendices shall prevail overthese or any other documents forming part of this Contract. Subject tothe foregoing the several documents forming the Contract are to be

taken as mutually explanatory of one another but in the event of anyambiguity or discrepancy the same shall be explained by the P.D. tothe Contractor who shall rectify the discrepancy at his own cost andexpense.

7.3.1 (a) The documents forming the Contract are to be taken asmutually explanatory of one another.


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(b) If in the light of the several documents forming the Contractthere remain ambiguities or discrepancies between theGovernments Requirements and the Contractors Proposal, theGovernments Requirements shall prevail without adjustmentof the Contract Sum.

(c) Any ambiguities or discrepancies within the GovernmentsRequirements shall be explained and resolved by the P.D. whoshall thereupon issue to the Contractor appropriate instructionsin writing.

7.3.2 Where there is a discrepancy within the Contractors proposals theContractor shall inform the P.D. in writing of his proposed

amendment to remove the discrepancy and (subject always tocompliance with Statutory Requirements) the P.D. shall decide

between the discrepant items or otherwise may accept theContractors proposed amendment and the Contractor shall be obligedto comply with the decision or acceptance by the P.D. without cost tothe Government.


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8. Materials, goods and workmanship

8.1 The Works shall be designed, constructed and completed inaccordance with the Contract and where not expressly providedotherwise in the Contract, in accordance with appropriate standardsand standard codes of practice.

8.2 All materials, goods and workmanship shall, so far as procurable, beof the respective kinds and standards described in the GovernmentsRequirements, or if not therein, as specifically described in theContractors Proposals or specifications referred to in Clause6.3:Provided that the Contractor shall not substitute anything sodescribed without the P.Ds consent in writing which consent shall not

be unreasonably delayed or withheld. No such consent shall relievethe Contractor of his other obligations.

8.3 The Contractor shall upon the request of the P.D. provide him withvouchers to prove that the materials and goods comply with Clause8.2.

8.4 (a) Further to his obligations under Clause 2.5, the Contractor shallsubmit to the P.D. for his approval proposals for checking the designand setting out of the Works and testing the materials andworkmanship to ensure that the Contractors obligations under theContract are met.

(d) The Contractor shall carry out the checks and tests approvedunder sub-clause 8.4(a) of this Clause or elsewhere in theContract and such further tests as the P.D. may reasonablyrequire including the opening up of any work covered up forinspection and/or any test.

8.5 The P.D. may issue instructions to the Contractor requiring at his owncost, the removal from the Site or rectification of any work, materialsor goods which are not in accordance with this Contract.

8.6 The Contractor shall provide such assistance and such instrumentsmachines, labour and materials as are normally required forexamining, measuring and testing any work and the quality, weight or


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quantity of any materials used and shall supply samples of materialsbefore incorporation in the Works for testing as may be required bythe P.D.

8.7 Unless the Contract otherwise provides, the cost of making any testshall be borne by the Contractor if such test is :

(a) proposed by the Contractor under Clause 2.5 or sub-clause8.4(a) of this Clause; or

(b) clearly intended by or provided for in the Contract.

8.8 Notwithstanding anything in Clause 8.7, if the Contractor carries outany further test as required by the P.D. pursuant to sub-clause 8.4(b)

and the result of such test shows the workmanship or materials is notin accordance with the provisions of the Contract then the cost of suchtest shall be borne by the Contractor, but if the result of such testshows the workmanship or materials comply with the provisions ofthe Contract then the cost of such test shall be borne by theGovernment.

9. Restriction and Procedure on Use of Imported Materials and

Goods

9.1 The Contractor shall use the materials and goods of Malaysian originas listed in the SENARAI BAHAN-BAHAN BINAANTEMPATAN issued by Kumpulan Ikram Sdn Bhd (hereinafterreferred to as KISB) and other local materials and goods certified byKISB or such materials and goods approved by the P.D.

9.2 Under no circumstances shall the Contractor be permitted toincorporate or supply imported materials, plant, equipment, vehiclesor other goods into the Works or forming part of the scope of the

Works except those approved by the Government, prior to theexecution of the Contract. The Contractor shall at his own costentirely substitute any materials, plant, equipment, vehicles or othergoods proposed to be imported but not approved by the Governmentwith suitable local materials, plant, equipment, vehicles or othergoods, including making any necessary subsequential changes oradjustments to the design of the Works to accommodate such


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substitution, all to the concurrence of the P.D. Such substitution, anynecessary subsequential changes to the design of the Works and theP.Ds concurrence thereto shall not prejudice or affect theContractors obligation and liability to guarantee the design underClause 2 hereof.

9.3 The Contractor shall ensure that the procurement of approvedimported materials, plant, equipment, vehicles or other goods areobtained directly from the country of origin based on F.O.B or othersimilar basis. The transportation and insurance of such importedmaterials, plant, equipment, vehicles or other goods from the countryof origin to Multi modal Transport Operators (hereinafter referred toas MTO) as listed in Appendix 8.

The Contractor shall allow in his tender all costs and time required incomplying with the requirements of this Clause including the costrequired for the services provided by the MTO.

9.4 The Contractor shall submit documentary evidence of compliancewith this Clause to the P.D. within one (1) month from the date ofeach delivery to the Site of such materials, plant, equipment, vehiclesor other goods.

10. Constructional Plant, Equipment, Vehicles and Machineries

10.1 The Contractor shall pay all port dues including (but not by way oflimitation) wharfage dues, pilotage fees, anchorage, berthage andmooring fees, quarantine dues, loading porterage and overtime feesfor constructional plant, equipment, vehicles and machineries for usedirectly in connection with the construction, completion of the works

brought into and despatched from Malaysia by the Contractor (or inhis name by agents).

10.2 The Contractor shall furnish to the P.D. all such shipping documents,invoices and other documentation as may be required by the CustomsAuthorities in connection with the importation of goods, materials,constructional plant, equipment, vehicles and machineries.

10.3 In the case of constructional plant, equipment, vehicles andmachineries imported on the Contractors behalf by importing agents


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and the like both the shipping documents and the invoices of theoriginal suppliers or manufacturers must indicate clearly that theconsignment is for the Contractors account.

10.4 The procedure in respect of the requirements of the foregoing shall bedetermined by the Customs Authorities. The Contractor shall makewritten application to the P.D. and shall provide the relevantdocumentation of all constructional plant, equipment, vehicles andmachineries to be imported into Malaysia not less than 45 (forty-five)days before the arrival of the said constructional plant, equipment,vehicles and machineries.

10.5 The Contractor shall pay all charges and other expenses in connectionwith the landing and shipment of all constructional plant, materials

and other things of whatsoever nature brought into or despatched fromMalaysia for the purpose of the Contract.

10.6 The Contractor shall make his own arrangement in obtainingclearance through the Customs of constructional plant, equipment,vehicles and machineries. However, if required, the P.D.s assistancemay be sought.

10.7 Under this Contract the Contractor shall be required to furnish all listsof constructional plant, equipment, vehicles and machineries to theP.D. whether the constructional plant, equipment, vehicles andmachineries are hired or acquired.

11. Non-removal of Materials and Equipment on Site

No equipment, temporary works, materials for temporary works orother goods or materials brought on to the Site for the purposes of theContract shall be removed except for use upon the Works without thewritten consent of the P.D. which consent shall not unreasonably be

withheld where the items in question are no longer immediatelyrequired for the purposes of the completion of the Works.

12. Statutory obligations, notices, fees and charges

12.1.1The Contractor shall comply with, and give all statutory noticesrequired by any written law, regulation or requirements, byelaw or


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any local authority or of any statutory undertaker which has anyjurisdiction with regard to the Works or with whose systems the sameare or will be connected (all requirements to be so complied with

being referred to in these Conditions as the Statutory Requirements)and the Contractor shall submit to the P.D. all approvals received bythe Contractor in connection therewith.

12.1.2If the Contractor or the P.D. finds any divergence between thestatutory requirements and either the Governments Requirements(including any Variation), or the Contractors Proposals, he shallimmediately give to the other written notice specifying thedivergence. In either case the Contractor shall inform the P.D. inwriting of his proposed amendment for removing the divergence, anwith the P.Ds consent (which shall not be unreasonably delayed or

withheld) the Contractor shall entirely at his own cost save asprovided in Clause 12.3 complete the design and construction of theWorks in accordance with the amendment and the P.D. shall note theamendment on the Contract Documents.

12.1.3If in any emergency compliance with Clause 12.1.1 requires theContractor to supply materials or execute work before receiving theP.Ds consent under Clause 12.1.2 the Contractor shall supply suchmaterials and execute such works as are reasonably necessary tosecure immediate compliance with the statutory requirements. TheContractor shall forthwith inform the P.D. of the emergency and ofthe steps that he is taking under this Clause.

12.2 The Contractor shall pay and indemnify the government againstliability in respect of any fees, charges, rates or taxes (excludingcapital contribution) legally demandable under any written law,regulation or bye law of any local authority or of any statutoryundertaker in respect of the Works. No adjustment shall be made to

the Contract Sum in respect of the amount of any such fees, charges,rates or taxes.

12.3.1If after the Date of Tender, there is a variation in the statutoryrequirements affecting the Works which necessities some amendmentto the Contractors Proposals, such amendments shall be treated as if


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it were an instruction of the P.D. under Clause 27.2 affecting aVariation.

12.3.2If any amendment to the Contractors Proposals becomes necessaryfor conformity with the terms of any permission or approval made bya decision of the relevant authority after the Date of Tender, suchamendment shall be treated as if it were an instruction of the P.D.under Clause 27.2 affecting a Variation to this Contract provided thatsuch treatment is not precluded in the Governments Requirements.

13. Custom Dues and Taxation

13.1 The Contractor shall be required to pay all Customs Duties and SalesTax in respect of all goods (or in his name by agents) forincorporation in the Works or for use directly in connection with the

construction and completion and maintenance thereof.

13.2 The Contractor shall be required to pay all Malaysian taxes on such part of their profit in respect of this Contract as is chargeabletherewith under the laws for the time being in force.

13.3 The Contractors employees including non-Malaysian personnel shallbe liable to pay Malaysian Income Tax in respect of their salaries asare chargeable therewith under the laws for the time being in forceand the Contractor shall perform such duties in regard to thededuction thereof as may be lawfully imposed on them by theGovernment.

14. Antiquities

14.1 All fossils, coins, antiquities and other objects of interest or valuewhich may be found on the Site or in excavating the same during the

progress of the Works shall become the property of the Governmentand upon discovery of such an object the Contractor shall forthwith :-

a) use his best endeavours not to disturb the object and shall ceasework if and in so far as the continuance or work wouldendanger the object or prevent or impede its excavation or itsremoval;


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14.2 The P.D. shall issue instructions in regard to what is to be doneconcerning an object reported by the Contractor under Clause 14.1and (without prejudice to the generality of his power) suchinstructions may require the Contractor to permit the examination,excavation or removal of the object by a third party. Any such third

party shall for the purpose of Clause 34 be deemed to be a person forwhom the Government is responsible and not to be a sub-contractor.

14.3 If compliance with the provisions of Clause 14.1 or with aninstruction issued under Clause 14.2, has involved the Contractor indirect loss and/or expense for which he would not be reimbursed by a

payment made under any other provisions of this Contract then theamount of such loss and/or expense shall be added to the Contract

Sum.

15. Copyright, royalties and patent rights

15.1 All royalties or other sums payable in respect of the supply and use incarrying out the Works of any patented articles, processes orinventions or in respect of the supply and use for the Works ofdrawings or models of buildings the subject of copyright other thandrawings or models provided by the P.D. shall be deemed to have

been included in the Contract Sum, and the Contractor shallindemnify the Government from and against all claims, proceedings,damages, costs and expense which may be brought or made againstthe Government or which it may be put by reason of the Contractorinfringing or being held to have infringed any patent rights in relationto any such articles, processes and inventions or infringing or beingheld to have infringed copyright.

15.2 Provided that where in compliance with the P.D.s instructionspursuant to Clause 27 the Contractor shall supply and use in carrying

out the Works any patented articles, processes or inventions, etc theContractor shall not be liable in respect of any infringement or allegedinfringement if any patent rights in relation to any such articles,

processes and inventions and all royalties, damages or other monieswhich the Contractor may be liable to pay to the persons entitled tosuch patent rights shall be added to the Contract Sum.


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15.3 Except where otherwise specified, the Contractor shall pay all tonnageand other royalties, rent fees and other payments or compensation (ifany) for getting stone, sand, gravel, clay or other materials requiredfor the Works.


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16. Site boundaries and setting out

The P.D. shall define the boundaries of the Site and shall determineany levels, boundary stones and any other points of reference whichmay be required by the Contractor for the execution of the Works.The P.D. shall also furnish to the Contractor such information as shallenable the Contractor to set out the Works at ground level. TheContractor shall be responsible for, and shall entirely at his own costamend, any errors arising from his own inaccurate setting out.Provided that any information given or forwarded by the Governmentto the Contractor shall not relieve the Contractor of his obligationsunder Clause 2. The Government gives no warranty in any mannerwhatsoever for the information either as to their accuracy or

sufficiency or as to how the same shall be interpreted and theContractor, when he makes use of and interpretes the same shall do soat his own risk and shall not constitute a breach of obligation on the

part of the Government if such information is not accurate orsufficient for the purpose of performing the Contractors obligationunder this Contract.

17. Inspection of Site

The Contractor shall be deemed to have inspected and examined theSite and its surroundings and to have satisfied himself and allowed inthe Contract Sum as to the form and nature of the Site, the extent andnature of the Works and the means of access to the Site, theaccommodation he may require and in general shall himself obtain allnecessary information as to risks, contingencies and othercircumstances which may influence or affect his tender.

18. Employment of Workmen

18.1 The Contractor shall employ in the execution of the Contract onlyMalaysian citizens as workmen. If in any particular trade or skillrequired to complete this Contract, the Contractor can show to thesatisfaction of the P.D. that Malaysian citizens are not available, thenthe Contractor may employ non-Malaysian citizens subject to theapproval of the Ministry of Human Resources and other relevantauthorities in Malaysia.


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18.2 The ratio of Malaysian citizens who shall be employed by theContractor in the execution of this Contract shall reflect the racialratio of the citizens of this country as prescribed by the Governmentfrom time to time.

18.3 The Contractor shall on the commencement of the Works furnish tothe Department of Labour of the state in which this Contract is

performed all particulars connected with this Contract and suchreturns as may be called for from time to time in respect of labouremployed by him and his sub-contractors (including labour onlysub-contractors) on the execution of this Contract, in accordance withthe requirements of the Employment Act 1955, Employment(Restriction) Act 1968, and Internal Security (Registration of Labour)

Regulation 1960 or any subsequent modification or re-enactmentthereof. The Contractor shall maintain on the Site at all times duringthe progress of the Works an up-to-date register containing particularsof all workers employed by him.


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18.4 All workmen employed in connection with the Works shall beemployed from within the District where the Works are situated andwhere such workmen are not available in the said District, then fromwithin the State where the Works are situated. The Contractor shallimmediately after the award of this Contract arrange with the locallabour office, District Officer/Pegawai Jajahan or Penghulu/Penggawato effect such employment.

18.5 The Contractor shall cause his sub0contractors including labour-only sub-contractors to comply with Clauses 18.1 to 18.4.

19. Compliance with Employment Act 1955 etc.

The Contractor shall comply and shall cause his sub-contractorsincluding labour only sub-contractors to comply with all therequirements of the Employment (Restriction) Act 1968, EmployeesProvident Fund Act 1951, the Industrial Relations Act 1967 and anyother law relating to the employment of workmen, or any subsequentmodification or re-enactment thereof.

20. Epidemics and Medical Attendance

20.1 The Contractor shall maintain the Site in clean and sanitary conditionand shall comply with all requirements of the Government Health andSanitary Authorities. In the event of any outbreak of illness of anepidemic nature the Contractor shall comply with and carry out suchregulations, orders and requirements as may be made by theGovernment or the local medical or health authorities for the purposeof dealing with and overcoming the same.

20.2 The Contractor shall provide to the satisfaction of the government or

Local Authorities concerned adequate medical attendance for hisemployees. In particular the Contractor shall provide first aid kits atsuitable locations on the Site and shall instruct an adequate number of

person in their use. The names of the persons so instructed shall bemade known to all employees of the Contractor.

21. Days and hours of working


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21.1 No work shall be done on :

(a) the weekly day of rest;

(b) any public holiday which is recognized in the state where thisContract is being carried out; or

(c) between the hours of six in the evening and six in the followingmorning,

without the written consent of the P.D. and such consent not to beunreasonably withheld or delayed.

21.2 Provided that when the written application of the Contractor isapproved by the P.D. under Clause 21.1 the Contractor shall complyfully with all requirements of the Employment Act 1955 in regardthereto or any subsequent modification or re-enactment thereof andshall bear all cost for compliance therewith.

22. Contractors Project Manager

22.1 Unless otherwise provided elsewhere in this Contract, the Contractorshall keep constantly on the Site of the Works, a competent ProjectManager who must be capable of receiving instructions andcommunicating proficiently in Bahasa Melayu and English.

22.2 Any instruction given to such Project Manager referred to in Clause22.1 by the P.D. shall be deemed to have been given to the Contractor.

23. Wages books and time sheets

The Contractor shall keep and shall cause his sub-contractors(including labour only sub-contractors) to keep proper wages booksand time sheets showing wages paid to and the time worked by allworkmen employed by him and his sub-contractors as aforesaid in and


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for the performance of this Contract and shall produce such wages andtime sheets on demand for inspection by any persons duly authorised

by the P.D. and shall furnish to the P.D. or his duly authorisedrepresentative such information relating to the wages and conditionsof employment of such workmen as the P.D. may from time to timerequire.

24. Default in payment of wages

In the event of default being made in the payment of any money inrespect of wages, and/or default in the payment in respect ofEmployees Provident Fund Contributions of any workman employed

by the Contractor or his sub-contractors including labour only sub-contractors in and for the performance of this Contract, then the P.D.

shall make payment to the Director general of Labour and/orEmployees Provident Fund Board, as the case may be, and such

payment including On-cost charges (calculated by applying thepercentage for On-cost charges stated in Appendix 1 to the paymentsmade), shall be deducted from any money due or to become due to theContractor under this Contract and failing which such payment shall

be recovered from the Performance Bond.

25. Discharge of workmen

The Contractor shall only employ such project manager, technicalstaff, foremen, artificers and labourers on the Works as are thoroughlycompetent, efficient and of good character. If, in the sole opinion ofthe P.D. any person employed by the Contractor misconducts himselfor has caused delays or is incompetent, the Contractor when sodirected by the P.D. in writing, shall at once remove such person fromthe Works and he shall not again be employed on the Works withoutthe written permission of the P.D. Any person so removed from theWorks shall be replaced without delay by a substitute approved by the

P.D. Provided that the Contractor shall not be entitled to any claimfor any expense whatsoever incurred by him in respect of anydirection given by the P.D. under this Clause.


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(ii) limitations of working space;

(iii) limitations of working hours;

(iv) the execution or completion of the Work in any specificorder.


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27.2 The P.D. may issue instructions effecting a Variation in theGovernments Requirements or the Contractors Proposal. NoVariation instructed by the P.D. under this Clause shall in any wayvitiate or invalidate the Contract but the fair and reasonable value (ifany) of all such Variations shall be taken into account in ascertainingthe amount of the Contract Sum except to the extent that suchVariation is necessitated by the Contractors default. Provided thatthe Government may not effect a change which is, or which makesnecessary, an alteration or modification in the design of the Workswithout the consent of the Contractor which consent shall not beunreasonably delayed or withheld.

27.3 The Contractor shall effect Variations to the Works or design if in theopinion of the P.D. the same is necessary for the purpose of suitabilityfunctionality and safety of the Works.

27.4 Where a Variation under Clause 27.3 by the Contractor results in extracost, the said extra cost shall be borne by the Contractor unless theContractor can prove to the satisfaction of the P.D. that such Variationis necessary in a consequence of any physical condition (other thanweather conditions or condition due to weather, the nature, characterand extent of local conditions, accessibility of the Site, the supply ofelectricity and water, the nature and geology of the ground, sub-soiland sub-marine, the hydrological and climate conditions, the form,nature and suitability of the Site, the supply of and conditionsaffecting labour and materials) or artificial obstruction which couldnot reasonably have been foreseen by an experienced Contractor.However, if a Variation under Clause 27.3 results in a reduction incost the Contract Sum shall be accordingly reduced.

27.5 No changes to the governments Requirements or ContractorsProposal made under this Clause shall relieve the Contractor of hisobligations under Clause 2.2 hereof.

28. VALUATION OF VARIATIONS


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28.1 The valuation of additional or substituted work shall be consistentwith the valued of work of similar character set out in the ContractSum Analysis or Contract Schedule of Rates making due allowancefor any change in the conditions under which the work is carried outand/or any significant change in the quantity of the work so set out.Where there is no work of a similar character set out in the ContractSum Analysis or Contract Schedule of Rates as fair valuation shall bemade.

28.2 The valuation of the omission of work shall be in accordance with thevalues in the Contract Sum Analysis or Contract Schedule of Rates.

28.3 Any valuation of work under Clause 28.1 and 28.2 shall includeallowance for any necessary addition to or reduction of the Site

administration, Site facilities and temporary works.


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28.4 Where an appropriate basis of a fair valuation of additional orsubstituted work is Daywork, the valuation shall comprise the primecost of such work plus 15% which shall include for the provision ofSite administration, Site facilities and temporary works and for profit.Provided always that as a condition precedent to any right to any

payment the Contractor shall produce vouchers specifying the timedaily spent upon the work, the workmens names, the plant and thematerials employed to the P.D. for verification not exceeding seven(7) days after the work has been executed.

28.5 If a Variation under Clause 27.3 changes the conditions under whichany other work is executed and the Contractor can satisfy the P.D. that

such variation was in consequence of any physical condition (otherthan weather conditions or conditions due to weather, the nature,character and extent of local conditions, accessibility of the Site, thesupply of electricity and water, the nature and geology of the ground,sub-soil and sub-marine, the hydrological and climatic conditions, theform, nature and suitability of the Site, the supply of and conditionsaffecting labour and materials) or artificial construction which couldnot reasonably have been foreseen by an experienced Contractor then,such work shall be valued in accordance with the provisions of thisClause.

28.6 To the extent that the valuation does not relate to the execution ofadditional or substituted work or the omission of work or to the extentthat the valuation of any work or liabilities directly associated with aVariation cannot reasonably be effected in the Valuation by theapplication of Clause 28.1 to 28.5 a fair Valuation shall be made.

28.7 Provided that no allowance shall be made under Clause 28 for anyeffect upon the regular progress to be made of the Works or for any

other direct loss and/or expense for which the Contractor would bereimbursed by payment under any other provision in the Conditions.

28.8 Effect shall be given to Clause 28 by addition to or deduction from theContract Sum.

29. Provisional Sums


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29.1 The term Provisional Sum included in the Contract Documents meansa sum for work to be executed or the supply of materials or goodswhich cannot be entirely foreseen, defined or detailed before the Dateof tender and the P.D. shall issue instruction to the Contractor inregard to the expenditure of such Provisional Sum.

29.2 The value of works which are executed by the Contractor in respect ofa Provisional Sum shall be ascertained in accordance with Clause 28.At the settlement of the accounts the value of such work executed bythe Contractor shall be set against the Provisional Sum and the

balance shall be added to or deducted from the Contract Sum. TheProvisional Sum if not used either wholly or in art shall as to theamount not used be deducted from the Contract Sum.

30. Contract Sum

30.1 The Contract Sum shall not be adjusted or altered in any waywhatsoever otherwise than in accordance with the express provisionsof the Conditions.

30.2 Where in the Conditions it is provided that an amount is to be addedor deducted from or dealt with by adjustment of the Contract Sum,then as soon as such amount is ascertained by the P.D. in whole or in

part, such amount shall be taken into account in the computation ofthe next Interim Payment following such whole or partialascertainment.

31. Sub-letting and Assignment

31.1 The Contractor shall not without the written consent of the P.D.(which consent shall not be unreasonably delayed or withheld) sub-letthe design for all or any portion of the Works. Where the P.D.consents to any sub-letting under this sub-clause such consent shall


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not in any way absolve the obligations of the Contractor under Clause2.2

31.2 Except where otherwise provided by this Contract, the Contractorshall not sub-let the whole or any substantial part of the Workswithout the prior written consent of the P.D. (which consent shall not

be unreasonably delayed or withheld) and such consent, if given, shallnot relieve the Contractor from any liability or obligation under thisContract and he shall be responsible for the due observance by suchsub-contractors, of all the terms, stipulations an conditions under thisContract. The Contractor shall also be responsible for the acts,defaults or neglects of any sub-contractor including in this instance,labour only sub-contractors, his agents, servants or workmen as fullyas if they were the acts, defaults or neglects of the Contractor, his

agents, servants or workmen. Provided always that the provision oflabour on a piecework basis shall not be deemed to be a sub-lettingunder this Clause.

31.3 It shall be a condition in any sub-letting which may occur that theemployment of the sub-contractor under the sub-contract shalldetermine immediately upon the determination of the Contractorsemployment under this Contract and no claim whatsoever shall bemade by the Contractor and/or sub-contractor against the Governmentfor any work done and/or materials or goods supplied.

31.4 All sub-contractors employed in connection with the Works shall beemployed from within the District, where the Works are situated andwhere such sub-contractors are not available in the said District, thenfrom within the State where the Works are situated.

31.5 The Contractor shall not assign the Contract or any part thereof, orany benefit or interest therein or thereunder without the prior writtenconsent of the P.D.

32. Artists and Tradesmen

The Contractor shall permit the execution of work not forming part ofthis Contract by artists or tradesmen or others who may be engaged bythe Government on the Site.


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33. Governments indemnity in respect of Injury to Persons and

Damage to Property

33.1 The Contractor shall be liable for and shall indemnify the Governmentagainst any damage, expense, liability, loss, claim or proceedingswhatsoever whether arising at common law or by statute in respect of

personal injury to or death of any person whomsoever arising out or inthe course of or by reason of the execution of the Works.

33.2 The Contractor shall be liable for and shall indemnify the Governmentagainst any damage, expense, liability, loss, claim or proceedings dueto injury or damage of any kind to any property real or personal(including the Works and any other property of the Government)insofar as such injury or damage arises out of or in the course of byreason of the execution of the Works, and provided always that thesame is due to any negligence, omission, breach of Contract or defaultof any person for whom the Contractor is responsible including theContractors servants or agents or of any sub-contractor, his servantsor agents.

33.3 The indemnities given by the Contractor under Clause 33.1 and 33.2shall not be defeated or reduced by reason of any negligence oromission of the Government, the P.D. or the P.D.s representatives infailing to ensure proper performance of any obligation of theContractor under this Contract.

34. Insurance against Injury to Persons and Damage to Property

34.1 Without prejudice to his liability to indemnify the Government underClause 33, the Contractor shall as a condition precedent to thecommencement of any work under this Contract effect and maintainsuch insurances whether with or without an excess amount asspecified in Appendix 1 hereto as are necessary to cover the liabilityof the Contractor and all sub-contractors, in respect of personalinjuries or death arising out of or in the course of or by reason of the


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execution of the Works and in respect of injury or damage to property,real or personal, arising out of or in the execution of the Works andcaused by any negligence, omission, breach of contract or default ofthe Contractor, his servants or agents or, as the case may be, of anysuch sub-Contractor, his servants, or agents. Where an excess amountis specified in Appendix 1 the Contractor shall bear the amount ofsuch excess. The policy or policies of insurance shall contain a crossliability clause indemnifying each of the jointly insured against claimsmade on him by the other jointly insured.

34.2 The Contractor shall effect and maintain insurances during theexecution of the Works as well as during the Defects Liability Periodfor such amount of indemnity as may be specified in Appendix 1 inrespect of any expense, liability, loss, claim or proceedings which the

Government may incur or sustain by reason of damage to any property (including the Works and any other property of theGovernment) caused by collapse, subsidence, vibration, weakening orremoval of support or lowering of ground water arising out of or inthe course of or by reason of the carrying out of the Works exceptdamage arising from any of the excepted risks in Clause 2.7.2..

34.3 Such insurance as referred to under sub-clause 34.1 hereof shall beeffected with an insurance company approved by the P.D. andmaintained I the joint names of the government and Contractor, forthe whole construction period and in such manner that thegovernment, the Contractor and all sub-contractors, whethernominated or otherwise, are also covered during the period of makinggood defects for any claim occasioned by the Contractor or any sub-

contractor in the course of any operations carried out by him or anysub-contractor for the purpose of complying with his obligationsunder Clause 47 hereof. It shall be the duty of the Contractor to

produce the relevant policy or policies of the insurance together withreceipts in respect of premiums paid to the P.D., whether demanded ornot.


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34.4 If the Contractor or any sub-contractor fails to renew such insuranceas are necessary under this Clause, the Government or the P.D. on its

behalf may renew such insurance as aforesaid and may deduct a sumequivalent to the amount in respect of premiums paid including on-cost charges (calculated by applying the Percentage for On-costCharges stated in Appendix 1 to the premiums paid), from any moneydue or become due to the Contractor under this Contract and failingwhich such premiums shall be recovered from the Performance Bondor as a debt due from Contractor.

35. Indemnities to Government in respect of Claims by Workmen

The Contractor shall be liable for and shall indemnify and keepindemnified the government and its officers or servants from all

liabilities arising out of claims by any and every workmen employedin and for the performance of this Contract for payment ofcompensation under or by virtue of the Workmens Compensation Act1952 and the Employees Social Security Act, 1969 or any other lawamending or replacing such law and from all costs and expensesincidental and consequential thereto.

36. Employees Social Security Act, 1969

36.1 The Contractor shall submit his Code Number and Social SecurityNumbers of all workers on the Site required to be covered under theEmployees Social Security Act 1969 to the P.D. for checking.

36.2 The Contractor shall make payment of all contributions from time totime on the first day on which the same ought to be the duty of theContractor to produce to the P.D. contribution cards or stampvouchers as evidence of payment of such contribution, whetherdemanded or not.

36.3 If the Contractor fails to comply with the terms of this Clause, the

Government or the P.D. on its behalf may without prejudice to anyother remedy available to Government for breach of any of the termsof this Contract :

(a) withhold an amount from any money which would otherwise bedue to the Contractor under this Contract and which in theopinion of the P.D. will satisfy any claims for compensation by


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workmen that would have been borne by SOCSO had theContractor not made default in maintaining the contribution;and/or

(b) pay such contributions as have become due and remain unpaidand deduct the amount of such contributions including on-costcharges (calculated by applying the Percentage of On-CostCharges stated in Appendix 1 to the contributions paid), fromany money due or become due to the Contractor under thisContract, and failing which such contributions shall berecovered from the Performance Bond or as a debt due from theContractor.

37. Insurance of works

37.1 The Contractor shall, in the joint names of the Government andContractor, insure against loss and damage by fire, lighting,explosion, storm, tempest, flood, ground subsidence, bursting oroverflowing of water tanks, apparatus or pipes, aircraft and otheraerial devices or articles dropped therefrom, riot and civil commotion,all work executed and all unfixed materials and goods delivered to,

placed on or adjacent to the Works and intended there of (butexcluding temporary buildings, plant, tools and equipment owned orhired by the Contractor or any sub-contractor) to the full value thereoftogether with the cost of the design work of the Contractor (plus anyamount which may be specifically stated in Appendix 1) and shallkeep such work, materials and goods so insured until the practicalcompletion of the whole of the Works but subject to any partialtermination of insurance permitted under this Contract in cases ofsectional completion or Partial Occupation by the Government. Suchinsurance policy or policies shall provide expressly for payment in thefirst place to the Government of any insurance monies due under the

policy or policies.

37.2 The said insurance with or without an excess clause as specified inAppendix 1 shall be effected with an insurance company approved bythe P.D. and the Contractor shall deposit with the P.D. the policy or

policies and the receipts for the premium paid for such insurance.Where an excess clause is specified in Appendix 1, the Contractorshall bear the amount of such excess.


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37.3 In the event the Contractor fails to renew such insurance as arenecessary under this Clause, the Government or the P.D. on it behalfmay renew such insurance and pay the premium in respect thereof anddeduct the amount so expended including on-cost charges (calculated

by applying the Percentage of On-Cost Charges stated in Appendix 1to the premiums paid), from any money due or become due to theContractor under this Contract, and failing which such premium shall

be recovered from the Performance Bond or as a debt due from theContractor.

37.4 Upon the occurrence of any loss or damage to the Works or unfixedmaterials or goods prior to the completion of the Works from anycause whatsoever, the Contractor shall notwithstanding that settlement

of any insurance claim has not been completed, with due diligencerestore, replace or repair the same, remove and dispose of any debrisand proceed with the carrying out and completion of the Works. Allmoney if and when received from the insurance under this Clauseshall be paid in the first place to the Government and then (less onlysuch amounts as are specifically required in Appendix 1 or elsewherein the Contract Documents) be released to the Contractor byinstallments on the certificate for payment issued by the P.D.,calculated as from the date of receipt of the money in proportion tothe extent of the work of restoration, replacement or repair and theremoval and disposal of debris previously carried out by theContractor. The Contractor shall not be entitled to any payment inrespect of the work of restoration, replacement or repair and theremoval and disposal of debris other than the money received underthe said insurance.

38. Performance Bond

38.1 (a) The Contractor shall, as a condition precedent to the

commencement of any work under this Contract, deposit withthe Government a Performance Bond in the form of anapproved Bankers or Insurance Guarantee or finance companyguarantee equal to five percent of the Contract Sum for the dueobservance and performance of this Contract. The PerformanceBond shall be held or shall remain valid and effective for such


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period as provided in the approved Banker' or InsuranceGuarantee.

(c) The Contractor may opt for a Performance Bond in the form ofPerformance Guarantee Sum in lieu of the Bankers orInsurance Guarantee or finance company guarantee as specifiedin sub-clause 38.1(a) whereby deductions of ten percent shall

be made from Interim payments until the total amount deductedaggregate to a sum equivalent to five percent of the ContractSum.

38.2 If the Contractor commits any breach of his obligations under theContract, the Government or the P.D. on its behalf may utilize andmake payments out of or deductions from the said Performance Bond

or any part thereof in accordance with the terms of this Contract.

38.3 The Performance Bond (or any balance thereof remaining for thecredit of the Contractor) may be released or refunded to theContractor on the completion of making good of all defects,shrinkages or other faults which may appear during the DefectsLiability Period and upon the giving of the Certificate of Completionof Making Good Defects for the whole of the Works under Clause 48hereof.

38.4 Notwithstanding sub-clauses 38.2 and 38.3 above, in the event theContractors employment under the Contract is determined underClause 53 hereof the said Performance bond or any balance thereofshall be forfeited.

39. Possession of Site

39.1 No work on this Contract shall be commenced unless and until thePerformance Bond stipulated under Clause 38.1(a), if opted for by the

Contractor, and such insurance policies as specified under Clauses 34hereof, shall have been deposited with the Government or the P.D.Provided that for the purposes of this Clause only (but for no other)ifthe Contractor shall produce to the Government or the P.D thePerformance Bond, if opted for by the Contractor, and the Cover notesof the said insurance policies and the receipts of premiums paid, itshall be sufficient discharge of his obligations under this Clause.


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39.2 Unless the Contract Documents shall otherwise provide, possession ofthe Site as complete as may reasonably be possible but not so as toconstitute a tenancy, shall be given on or before the Date forPossession stated in the Letter of Acceptance of Tender to theContractor who shall thereupon and forthwith commence the Works(but subject to sub-clause 39.1 hereof) and regularly and diligently

proceed with and complete the Works on or before the Date forCompletion as stated in Appendix 1. The Date for Completion ofthe Works as referred to under Clause 41 hereof shall be calculatedfrom the said Date for Possession.

39.3 Provided always that possession of Site may be given in sections or inparts and any other restriction upon possession of the Site shall be

stated in Appendix 1 or in the Contract Documents.

39.4 In the event of any delay in giving possession of the Site from theDate for Possession as stated in the Letter of Acceptance of Tenderor delay in giving any section or part of the Site whether provided insub-clause 39.3 or otherwise, the P.D. may issue instructions in regardto the revision of the Date for Possession and the Date forCompletion shall be appropriately revised under Clause 45(g) hereof,

but the Contractor shall not be entitled to claim for any loss or damagecaused by such delay in giving possession of the Site, nor be entitledto determine his own employment under this Contract.

39.4(a) Provided that in the event that the giving of the possession ofthe whole Site is delayed beyond ninety (90) days from the Date forPossession stated in the Letter of Acceptance of Tender, the P.D.shall give written notice to the Contractor of the causes of such delay.Upon the receipt of the said written notice, the Contractor may, bywritten notice served on the P.D. within fourteen (14) days of receiptof the said notice issued by the P.D. :

(i) agree to proceed with the Works when the Site is subsequentlymade available, in which case sub-clause 39.4 above shall applyand in particular, the Contractor shall not be entitled to claimfor any loss or damage caused by such delay in giving

possession of the Site; or


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(ii) determine his own employment under this Contract, withoutprejudice to any other rights or remedies he may possess.

39.5(b) provided that in the event that the giving of possession of anysection or part of the Site (whether provided for in sub-clause 39.3 orotherwise) is delayed beyond ninety (90) days from the Date ofPossession stated in Appendix 1 or the date the Contractor isscheduled to commence work on that section or part of the Works inaccordance with the approved programme of Works as referred to inClause 2.14 hereof as the case may be, then the P.D. shall give writtennotice to the Contractor of the causes of such delay. Upon receipt ofthe said written notice, the Contractor may by written notice served onthe P.D. within fourteen (14) days of receipt of the said notice issued

by the P.D.

(i) agree to proceed with the Works when the section or part of theWorks is subsequently made available, in which case sub-clause 39.4 above shall apply and in particular, the Contractorshall not be entitled to claim for any loss or damage caused bysuch delay as aforesaid; or

(ii) request for P.D.s instruction to omit the relevant section or partof the Works from the Contract. If the P.D. agrees to suchrequest then the relevant section or part shall be duly omittedand deemed to be a variation to the Contract. If the P.D. doesnot agree to such request as aforesaid then the Contractor shall

be entitled to claim for any loss or and/or expenses caused byand in respect of such delay beyond ninety (90) days asaforesaid.

39.5 The P.D. may issue instructions in regard to the postponement of anydesign or construction work to be executed under the provisions ofthis Contract.

40. Mutual Termination

40.1 If any circumstance arises during the currency of the Contract whichrenders it impossible for the government or the Contractor with theconcurrence of the government, to proceed with the Works, the


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Contract shall be deemed to be mutually terminated upon the serviceof a written notice by the Government to the Contractor to that effect.

40.2 Upon termination of the Contract pursuant to this Clause, theContractor shall carry out any protection works instructed by the P.D.and shall within one (1) month from the date of the written noticeremove from the Site all Contractors Equipment (except thoserequired for protection works) and site facilities so as to leave the Sitein a clean and tidy condition. In the event the Contractor fails to doso, the Government shall retain any costs or expenses incurred inconnection with their sale and/or disposal before paying the balance(if any) to the Contractor.

40.3 Upon termination of the Contract pursuant to this Clause, the

Government shall pay the Contractor (in so far as such amounts oritems have not already been covered by payments on account made tothe Contractor) the value of all work carried out up to the date oftermination and in addition :

(a) the amounts payable of any preliminary items so far as theWork or service comprised therein has been carried out or

performed and a proper proportion of any such items whichhave been partially carried out or performed;

(b) the cost of materials or goods reasonably ordered for the Workswhich have been delivered to the Contractor or of which theContractor is legally liable to accept delivery (such materials orgoods becoming the property of the government upon such

payment being made to the Contractor);

(c) a sum being the amount of any expenditure reasonably incurredby the Contractor in the expectation of completing the whole ofthe Works in so far as such expenditure has not been recovered

by any other payments referred to in this sub-clause; and

(d) the reasonable cost of any protection works and removal ofequipment and site facilities under sub-clause 40.2 hereof.


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40.4 If upon termination of the Contract, any section or part of the Workshas reached practical completion in accordance with Clause 41 or iscompleted so far as to be useable then in connection therewith, theP.D. may at his discretion and in lieu of the Contractors obligationsunder Clause 48 allow against the sum due to the Contractor pursuantto sub-clause 40.3 hereof, the cost (assessed by the P.D.) of repair.,rectification and making good for which he would have been liableunder the said Clause had it continued to be applicable.

40.5 In the event of termination of the Contract pursuant to this Clause,Clause 51 shall apply in such a manner as if the date of abandonmentwas the date of issue of the Certificate of Completion of Making GoodDefects.

40.6 Save as aforesaid the Contract shall continue to have full force andeffect.

41. Completion of the Works

41.1 Subject to any requirement as to the completion of any section or partof the Works under Clauses 39.3 and 43 before the completion of thewhole of the Works, the Contractor shall complete the whole of theWorks on or before the Date for Completion stated in Appendix 1 orsuch extended time as may be allowed under Clause 45 hereof.

41.2 When the whole of the Works have reached practical completionaccording to the provisions of this Contract and to the satisfaction ofthe P.D., the date of such completion shall be certified by him andsuch date shall be the date of the commencement of the DefectsLiability Period as provided in Clause 48 hereof. The certificateissued under this sub-clause shall be referred to as the Certificate ofPractical Completion.

41.3 Notwithstanding the provision of Clauses 42 and 45, time shall be theessence of this Contract.

42. Damages for Non-Completion


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42.1 If the Contractor fails to complete the Works by the Date forCompletion stated in Appendix 1 or within any extended time underClause 45 hereof, the Contractor shall pay the Government a sumcalculated at the rate stated in Appendix 1 as Liquidated andAscertained Damages for the period during which the said Worksshall so remain and have remained incomplete and the P.D. maydeduct such damages from any money due to the Contractor underthis Contract and failing which such damages shall be recovered fromthe Performance Bond or as a debt due from the Contractor, and theP.D. shall inform the Contractor in writing of such deduction.

42.2 If after liquidated damages have become payable in respect of anypart of the Works, the P.D. issues a variation order under Clause 27which in the opinion of the Contractor results in further delay to that

part of the Works, the Contractor shall within thirty (3) days after theissuance of the variation order notify the P.D. in writing of suchfurther delay; and if the P.D. concurs with the Contractor that thevariation results in further delay to that part of the Works, theGovernments entitlement to liquidated damages in respect of that partof the Works shall be suspended for such period as determined by theP.D. The P.D. shall also inform the Contractor in writing of such

period of suspension. Such suspension shall not otherwise invalidateany entitlement to liquidated damages which the Government mayhave and any monies deducted or paid in accordance with this Clausemay be retained by the Government.

43. Sectional Completion

Where different completion dates for different sections or parts of theWorks are stated and identified in Appendix 1 or elsewhere in theContract Documents and different and separate Liquidated andAscertained Damages are provided for each section or part of theWorks, the provisions of this Contract in regard to the Certificate of

Practical Completion, Delay and Extension of Time, Liquidated andAscertained Damages for delay, and the Defects Liability Periods (butnot insurance of the Works under Clause 37, Performance Bond underClause 38 and final payment on the Final Certificate under Clause 51hereof) shall, in the absence of any express provision to the contraryelsewhere in the Contract Documents apply mutatis mutandis as if


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practical completion of the relevant part under sub-clause 41.1hereof, shall be reduced in the proportion which the total valueof the relevant part bear to the Contract Sum;

(f) It is expressly agreed that nothing contained in the preceding paragraphs shall entitle the Contractor to the release of thePerformance Bond or any part thereof, the intention being thatthe said Performance Bond or ant part thereof shall be releasedor refunded only upon the completion of making good alldefects, imperfections, shrinkages or other faults which mayappear during the Defects Liability Period and upon the givingof the Certificate of Completion of Making Good Defects forthe whole of the Works under Clause 48 hereof.

45. Delay and Extension of Time

45.1 Upon it becoming reasonably apparent that the progress of the Worksis delayed, the Contractor shall forthwith given written notice of thecauses of delay to the P.D. and if in the opinion of the officer namedin Appendix 1 the completion of the Works is likely to be delayed orhas been delayed beyond the Date for Completion stated in Appendix1 or beyond any extended Date for Completion previously fixed underthis Clause :-

(a) by an occurrence of force majeure not within the control of theparty affected, which that party is unable to prevent, avoid orremove, and shall mean

(i) war, hostilities (whether declared or not), invasion, act offoreign enemies, rebellion, revolution, insurrection,military or usurped power, civil war, terrorism;

(ii) ionising, radiation or contamination by radioactivity from

any nuclear waste, from the combustion of nuclear fuel,radioactive toxic explosive, nuclear assembly or nuclearcomponent thereof;

(iii) pressure waves caused by aircraft or other aerial devicestravelling at sonic or supersonic speeds;


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(iv) natural catastrophe including but not limited toearthquakes, floods subsidence, lightning andexceptionally inclement weather; and

(v) riot and disorder, criminal damage, sabotage, strike,lockout, labour unrest or other industrial disturbances(affecting the performance of this Contract) which arenot the fault of the Contractor or of any sub-contractor;or

(b) be reason of directions given by the P.D. consequential upondisputes with neighbouring owners provided the same is notdue to any act, negligence or default of the Contractor or anysub-contractor; or

(c) by reason of loss or damage occasioned by any one or more ofthe contingencies referred to in Clause 2.7.2 hereof (providedand to the extent that the same is not due to any act, negligence,default or breach of Contract by the Contractor or any sub-contractor, whether in failing to take reasonable steps to protectthe Works or otherwise); or

(d) by reason of P.D.s instructions issued under Clauses 7.3.1(c),8.4(b), 14.2, 27.2, 39.6 hereof, provided that such instructionsare not issued due to any default or breach of contract by theContractor or any sub-contractor; or

(e) by reason of the Contractor not having received in due timenecessary instructions, decisions, information, concurrence orconsent from the P.D. which the P.D. is obliged to provide orgive under the Contract for which the Contractor shall havespecifically applied in writing on a date which having regardsto the Date for Completion stated in Appendix 1 or to any

extension of time then fixed under this Clause, was neitherunreasonably distant from nor unreasonably close to the date onwhich it was necessary for the Contractor to receive the same;or


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(f) by delay in receipt of any necessary permission or approval ofany statutory body or local authority which the Contractor hastaken all practicable steps to avoid or reduce; or

(g) by reason of delay in giving possession of the Site as providedunder Clause 39.4 and/0r 39.5 hereof; or

(h) by delay on the part of artists, tradesmen or others engaged bythe Government in executing work not forming part of thisContract; or

(i) by the Contractors inability for reason beyond his control andwhich he could not reasonably have foreseen at the date ofclosing of tender of this Contract to secure such goods,

materials and/or services as are essential to the proper carryingout of the Works, then the P.D. shall so soon as he is able toestimate the length of the delay beyond the date or timeaforesaid make in writing a fair and reasonable extension oftime for completion of the Works, provided always that theContractor shall use constantly his best endeavours to preventdelay and shall do all that may reasonably be required to thesatisfaction of the P.D. to proceed with the Works. Thecertificate issued by the P.D. under this Clause shall be referredto as the Certificate of Delay and Extension of Time.

45.2 If during the regular progress of the Works or any part thereof hasbeen materially affected by reason of delays as stated under Clause45.1(b), (d), (e) and (h) hereof (and no other), and the Contractor hasincurred or is likely to incur direct loss and/or expense beyond thatreasonably contemplated an