Professional Documents
Culture Documents
Contents
PAGE PAGE
Articles of Agreement 5 5.5 Nominated Supply Contract
documents
Attestation 8 5.6 Further drawings, details, descriptive
schedules and similar documents
The General Conditions 5.7 Documents to be provided to
Contractor on time
1 Interpretation and definitions 9 5.8 Electronic copies of drawings
5.9 Documents on Site
1.1 Governing law 5.10 Return of drawings
1.2 Singular, plural, masculine and 5.11 Submission of manuals and
feminine assignment of warranties
1.3 Method of reference to clauses and 5.12 Submission of as-built drawings
Articles 5.13 Limits to use of documents
1.4 Articles of Agreement, Conditions and 5.14 Issue of Architect's certificates
Appendix to be read as a whole 5.15 Copy of notice to be given to
1.5 Clauses divided into sub-clauses to be Employer
read as a whole
1.6 Definitions 6 Statutory obligations 24
1.7 Tenders based on Schedule of
Quantities and Rates 6.1 Statutory Requirements
1.8 The role of the Engineer 6.2 Compliance with the Statutory
1.9 Sectional completion of the Works Requirements
1.10 Communications 6.3 Fees or charges
1.11 Notices of default or determination to 6.4 Statutory undertakers and utility
be sent by special delivery companies
1.12 Parties to act reasonably and
expeditiously 7 Setting out the Works 25
2 Contractor's obligations 16 Setting out and levels
1
PAGE PAGE
12 Architect's representative 29 19.1 Assignment
19.2 Sub-letting
12.1 Architect's representative
12.2 Delegation of duties and powers 20 Injury to persons and property and
12.3 Instruction to bind parties indemnity to Employer 38
17.1 Substantial Completion Certificate for 22A.1 Contractor to effect Contractors' All
the Works Risks Insurance of the Works
17.2 Separate Defects Liability Period for 22A.2 Insurer to be approved and remedy if
each Section and Relevant Part Contractor fails to insure
17.3 Rectifyi ng defects 22A.3 Use of annual policy maintained by
17.4 Defects Rectification Certificate for the Contractor
Works
17.5 Separate certificate for each Section or 22B Insurance of the Works by the
Relevant Part Employer 43
17.6 Damage by a Specified Peril
17.7 Other rights and remedies 228.1 Employer to effect Contractors' All
Risks Insurance of the Works
18 Partial possession by Employer 36 228.2 Remedy if Employer fails to insure
2
PAGE PAGE
Remedy if Employer fails to insure 29.1 Nomination of a sub-contractor or a
supplier
Possession, commencement and 29.2 Contractor's right of reasonable
completion 44 objection
29.3 Sub-contractor and supplier warranty
Possession of Site to Employer
Commencement and completion 29.4 Contractor's tender for work provided
Postponement or suspension for by a Prime Cost Sum
29.5 Nomination using the standard
Damages for non-completion 45 conditions
29.6 Contractor's responsibility for
Architect to certify Contractor's failure Nominated Sub-Contractors and
to complete on time Nominated Suppliers
Liquidated and ascertained damages 29.7 Quantity Surveyor's notification of
Refund if Completion Date revised interim payments
29.8 Direct payment of Nominated Sub-
Extension of time 46 Contractors and Nominated Suppliers
29.9 Extension of time for completion of
Contractor's first notice of delay Nominated Sub-Contract works or
Contractor's second notice delivery of Nominated Supply Contract
Fixing new Completion Date goods
"Contractor's default involved in the delay 29.10 Substantial completion of Nominated
Rate of progress Sub-Contract works
Nominated Sub-Contractors and 29.11 Architect to certify Nominated Sub-
Suppliers to be kept informed Contractor's failure to complete on time
29.12 Early final payment to Nominated Sub-
Delay recovery measures 51 Contractor or Nominated Supplier
29.13 Re-nomination
" Delay recovery measures' 29.14 Architect's consent
,'Delay recovery proposals 29.15 Employer not liable to a Nominated
,'., Contractor to carry out delay recovery Sub-Contractor or Nominated Supplier
3
PAGE PAGE
32.11 Proceedings commenced after Final 38 Fluctuations 84
Certificate
32.12 Effect of Architect's certificates 38.1 Fluctuation provisions only applicable if
32.13 Late payment expressly stated to be
38.2 Adjustment for fluctuations occurring
33 Surety bond 72 after the Completion Date
4
cles of Agreement
,S Agreement is made on the ................................ day of ................................ 20 ..... .
Employer') and
,", .......................................................................................................................................................
snl~wilnn and describing the work to be carried out prepared by or under the direction of or at
request of the Architect;
and whereas the Contractor has, based on the Tender Documents, made in the Form of
IAn,rl",r his calculation of the sum that he will require for carrying out the Works by preparing
, and pricing the Schedule of Quantities and Rates; 1
1 Delete 2A if the Quantity Surveyor prepared the Schedule of Quantities and Rates
5
(2B) and whereas the Contractor has accepted a schedule of quantities and rates prepared
by the Quantity Surveyor as the Schedule of Quantities prepared by himself; 2
(2C) and whereas the Contractor has, based on the Tender Documents, made in the Form of
Tender his calculation of the sum that he will require for carrying out the Works by pricing the
Schedule of Quantities and Rates; 3
(3) and whereas the Contractor has given to the Employer the Schedule of Quantities and
Rates setting out the build up of the Contract Sum;
(4) and whereas the Architect has given each party one copy of the Articles of Agreement, the
Appendix, the Conditions, the Contract Drawings, the Specification and the Schedule of
Quantities and Rates each Signed by or on behalf of the parties.
Article 1
The Contractor will carry out and complete the Works in accordance with and subject to the
Contract for the consideration stated in Article 2.
Article 2
The Employer will pay to the Contractor the sum of Hong Kong Dollars
(HK$......................................................................................................................................................)
('the Contract Sum') or such other sum that becomes payable in accordance with and subject
to the Contract.
Article 3
The Architect will be
of ............., ........................................................................................................................................
Article 4
The Quantity Surveyor will be
of ......................................................................................................................................................
6
~rticle5
In the event of the person appointed to act as either the Architect or the Quantity Surveyor
ceasing to act, the Employer shall appoint a replacement as soon as practicable.
If the Contractor objects to the person appointed to succeed either the Architect or the
Quantity Surveyor, the Contractor has the right to refer his objection to an arbitrator
under the Contract provided the reference to arbitration is made within 14 days of the
appointment.
The person appointed as the replacement to the Architect or the Quantity Surveyor
shall continue to act pending the award of the arbitrator appointed under Article 5(2)
but shall immediately cease to act if so directed by the arbitrator's award. In which
case the Employer shall appoint a further replacement as soon as practicable.
The Contractor shall have the right of objection under Article 5(2) to a further appointment
of either the Architect or the Quantity Surveyor.
A person appointed as the replacement to the Architect or the Quantity Surveyor shall
not be entitled to disregard or overrule any agreement, approval, certificate, confirmation,
consent, decision, direction, dissent, instruction, notice, notification, opinion, request
or requirement given or made by the person previously appointed save insofar as the
Contract permits.
,·Arti"ll .. 6
dispute arises under or in connection with the Contract, the parties agree to resolve the
u<o'tJu", in accordance with the dispute settlement procedures in clause 41.
7
Attestation
'SIGNED AND SEALED as a deed / SIGNED by the Employer
(name and office held by signatory for the Employer) (name and occupation of witness)
(name and office held by Signatory for the Contractor) (name and occupation of witness)
*delete as applicable
8
The General Conditions
'1 Interpretation and definitions
Governing law
1.1 The Contract shall be governed by and construed according to the laws for the time
being in force in Hong Kong.
Definitions
'i~6 The following words and phrases in the Articles of Agreement, the Conditions and the
Appendix shall have the meanings given below unless the context in which they appear
requires otherwise or the Articles, the Conditions or an item or entry in the Appendix
provides otherwise:
Architect: the person named as the Architect in Article 3, or any successor appointed
under Article 5.
Articles or Articles of Agreement: the Articles of Agreement to which the Conditions are
annexed.
Commencement Date: the date stated in the Appendix for the commencement of the
Works.
Communication: the giving, submitting or issuing of, without limitation, any agreement,
approval, authorisation, certificate, confirmation, consent, decision, delegation, direction,
dissent, determination, endorsement, instruction, notice, notification, opinion, request,
requirement or statement.
Completion Date: the date stated in the Appendix by which the Works or a Section are
to be completed or such later date to be fixed by the Architect under clause 25.
9
1 Interpretation and definitions (cont'd)
Contract: the Articles of Agreement, the Appendix, the Form of Tender submitted by
the Contractor, the Employer's letter of acceptance of the Contractor's tender and any
correspondence between the parties expressed to form part of the Contract, the Special
Conditions, if any, the Conditions, the Contract Drawings, the Specification and the
Schedule of Quantities and Rates.
Contract Drawings: the drawings referred to in the first and fourth recitals of the Articles
,"
and,;\enumerated as such in the Specification.
'-, -, "
·c·;~,· Caht~~cits~!n'; -the s'um stated in Article 2, or such other sum that becomes payable in
accordance with the Contract.
~"' ~", I' \ '\ ("
-,': 'L"':-;;"-_~,\ 'it ;:::-. ,,~-{ _i_~,-': ,. ';,' ;,", ,": .,: ..,-, ; :"::' ~ ..
.. , -' ContriiCtors"AII Risks Insurance of the Works: insurance which provides cover against
physical loss of or damage to the Works, temporary works and materials and goods, as
described in clause 22.
Date for Possession of the Site: the date or dates for the possession of the whole or
parts of the Site stated in the Appendix under the reference to clause 23.1.
Date of Substantial Completion: the date stated in the Substantial Completion Certificate
for the Works or a Section, issued by the Architect under ciauses 17.1 and 17.2.
day: a calendar day and includes Sundays and other days which are general holidays
by virtue of the General Holidays Ordinance (Chapter 149, Laws of Hong Kong).
Defects Liability Period: the period stated in the Appendix under the reference to clause
17.3, commencing on the day after the Date of Substantial Completion of the Works or
a Section or the day after the Relevant Date of Substantial Completion of a Relevant
Part.
Defects Rectification Certificate: a certificate issued by the Architect to the effect that
all defects, shrinkages and other faults have been rectified in accordance with the
Contract, as described in clauses 17.4 and 17.5.
direct loss and/or expense: the monetary consequences that flow naturally without
other intervening cause and independently of special circumstances because of the
direct consequences of a qualifying event and which are not otherwise reimbursed to
the Contractor.
10
Interpretation and definitions (cont'd)
Engineer: a person engaged as a member of the Employer's design team for the design
and supervision of one or more of the geotechnical, civil, structural or building services
elements of the Works, as referred to in clause 1.7.
Excepted Risks: (a) Any consequence of war (whether war be declared or not) in which
Hong Kong is actively engaged, the invasion of Hong Kong, acts of terrorists in Hong
Kong, civil war, rebellion, revolution or military or usurped power in Hong Kong, riot,
commotion or disorder in Hong Kong other than amongst the employees of the
Contractor or any person for whom the Contractor is responsible;
(b) the Architect's design of the Works insofar as damage, loss or
injury is the direct consequence of the design;
(c) a cause due to any neglect or default of the Architect, the Employer
or any person for whom the Architect or the Employer is responsible;
(d) ionizing radiation or contamination by radioactivity from any nuclear
fuel or from any nuclear waste from the combustion of nuclear fuel, radioactive toxic
explosive or other hazardous properties of any explosive nuclear assembly or nuclear
component thereof;
and (e) pressure waves caused by aircraft or other aerial devices travelling
at sonic or supersonic speeds.
Final Certificate: the certificate issued by the Architect stating the Final Contract Sum
and the total of.the amounts of Interim Certificates to be set off against that sum, as
described in clause 32.8.
Fina/Contract Sum: the sum resulting from the adjustment of the Contract Sum in
accordance with the Contract.
Form of Tender: the form of tender referred to in the first recital of the Articles as being
part of the Tender Documents.
Interim Certificate: a certificate issued by the Architect stating the amount of an interim
payment due to the Contractor, as described in clause 32.1.
Limit of Retention: the amount stated in the Appendix under the reference to clause
32.4 as the limit to the amount of Retention to be held by the Employer on the payment
for the Contractor's work in progress.
11
1 Interpretation and definitions (cont'd)
Nominated Supply Contract: the supply contract between the Contractor and a
Nominated Supplier.
Period of Interim Certificates: the period stated in the Appendix under the reference to
clause 32.1 as the interval between the issuing of Interim Certificates.
person for whom the Contractor is responsible: the Contractor's servants or agents,
sub-contractors, suppliers, persons employed or engaged in connection with the Works
and persons who may properly be on the Site upon or in connection with the Works
other than the Employer or any person for whom the Employer is responsible.
person for whom the Employer is responsible: the Employer's servants or agents and
the persons listed in clause 30.1.
Prime Cost Sum: a sum either provided in the Contract or arising as described in clause
29.1 for work to be carried out by a Nominated Sub-Contractor or for materials or
goods to be obtained from a Nominated Supplier.
Provisional Sum: a sum provided in the Contract for work or for costs, which could not
be entirely foreseen, defined or detailed when the Contract was prepared, to be paid to
the Contractor if instructed by the Architect under clause 13.2 to carry out such work or
incur such costs.
Quantity Surveyor: the person named as the Quantity Surveyor in Article 4, or any
successor appointed under Article 5.
Relevant Date: the date upon which the Employer took possession of a Relevant Part
under clause 18.
Relevant Part: the part of the Works or part of a Section taken possession of by the
Employer under clause 18 before Substantial Completion of the Works or that Section.
Retention: the sum calculated in accordance with clause 32.4 and retained by the
Employer from the gross valuation of the Contractor's work in progress included in an
Interim Certificate.
12
Interpretation and definitions (cont'd)
Retention Percentage: the percentage entered in the Appendix under the reference to
clause 32.4, used to calculate the Retention in accordance with the rules set out in that
clause.
Schedule of Quantities and Rates: the schedule of quantities and rates referred to in the
recitals of the Articles and in clause 1.7, prepared by the Contractor, setting out the
build up of the Contract Sum and submitted with his tender, or a certified true copy of
this schedule.
Section: a part of the Works for which a separate Completion Date is stated in the
Appendix where the Contract provides for sectional completion of the Works.
Site: the land and other places provided by the Employer for the purpose of carrying
out the Works.
. Specialist Works: work directly connected with or ancillary to but not forming part of the
Works, to be carried out by a Specialist Contractor.
Specification: the specification referred to in the first and fourth recitals of the Articles
which describes, without limitation, the types, standards and quality of the materials
and goods to be used, the standard and quality of workmanship required, the manner
in which work processes are to be carried out, the performance requirements and other
matters and things relating to the construction of the Works.
Specified Perils: fire, lightning, explosion, storm, tropical cyclone, flood, bursting or
overflowing of water tanks, apparatus or pipes, earthquake, aircraft and other aerial
devices or articles dropped from them.
sub-contractor: a person who enters into a sub-contract with the Contractor to carry
out work forming part of the Works and includes a Domestic Sub-Contractor and a
Nominated Sub-Contractor.
13
1 Interpretation and definitions (cont'd)
Substantial Completion: the state of completion where the Works or a Section have
been substantially completed to the Architect's satisfaction and have passed the required
inspections and tests, as referred to in clauses 17.1 and 17.2.
Substantial Completion Certificate: a certificate issued by the Architect stating the date
when in his opinion the Works or a Section have reached Substantial Completion.
substantially completed: the state of completion where the Works or a Section may not
be absolutely completed or entirely free from defects but have reached the stage where
they can be taken over and used by the Employer for their intended purpose and where
the unfinished items of work and the remaining defects then patent are only of a minor
nature and extent and their completion or rectification will not unreasonably interfere
with or interrupt the taking over of the Works or Section.
supplier: a person who enters into a supply contract with the Contractor to supply
materials or goods and includes a Nominated Supplier.
suspend: to cease operations for a period of time on an activity in which work has
commenced.
Tender Documents: the documents and drawings referred to in the first recital of the
Articles, or a certified true copy of those documents and drawings.
Valuation: the valuation made by the Quantity Surveyor, in accordance with the valuation
rules under clause 13.4, of work carried out in response to an Architect's instruction
requiring a Variation, remeasurement of Provisional Quantities and Provisional Items or
to expend Provisional Sums.
Variation: a change instructed by the Architect to the design, quality or quantity of the
Works including:
(i) an alteration to the type, standard or quality of any of the materials or goods
comprising the Works;
(iii) the removal from the Site of materials or goods and the demolition and removal
of work except where provided for in the Contract or where the materials,
goods or work are not in accordance with clause 8.1 ;
14
Interpretation and definitions (cont'd)
Works: the work briefly described in the Articles of Agreement and shown upon,
described by or referred to in the Contract including any change made to the work in
accordance with the Contract.
(2) The Contractor shall be deemed to have estimated his own quantities of the Works
and shall submit, with his tender, a Schedule of Quantities and Rates setting out a
build-up of the Contract Sum.
(3) The accuracy of the quantities in the Schedule of Quantities and Rates submitted
by the Contractor shall be at the sole risk of the Contractor and the cost of any under or
over estimation of quantities shall be deemed to have been allowed for in the rates of
the item concerned.
(4) The rates in the Schedule of Quantities and Rates shall form part of the Contract
and shall be used for valuing Variations and estimating interim payments.
(5) Where any item which is required by the Contract has not been specifically priced
in the Schedule of Quantities and Rates, the cost shall be deemed to have been included
in the rates for other items.
(2) The delegation shall be in writing and copied to the Contractor. It shall specify the
duties and powers that are delegated and shall remain in force until changed or
terminated in writing by the Architect.
(3) Where in the context of the wording of a clause in the Conditions or where
recognition of the Engineer's statutory responsibility requires it, the word 'Architect' in
the Conditions shall be deemed to be read as 'Engineer'.
(2) The phrase 'the whole of the Works' means the Works including all Sections.
Communications
Unless otherwise stated, all notices, certificates and other communications under the
Contract between the Employer, the Architect, the Quantity Surveyor and the Contractor
shall be in writing.
15
1 Interpretation and definitions (cont'd)
(2) All requirements shall be reasonable requirements and, without limitation, the term
"to the Architect's satisfaction" shall be construed as meaning to the Architect's
reasonable satisfaction and the term "practicable" shall mean reasonably practicable.
2 Contractor's obligations
, (a) organize, manage, plan and supervise the carrying out of the Works;
, "".'(b) co-ordinate the carrying out of the Works including the interface between his own
work and the work carried out by each Domestic Sub-Contractor, Nominated Sub-
Contractor, Specialist Contractor, statutory undertaker and utility company;
(d) design sufficient, safe and adequate temporary works to enable the Contractor to
comply with his other obligations under the Contract, except where the design of
any temporary works is a statutory obligation of any person other than the Contractor
or any person for whom the Contractor is responsible;
(e) carry out any work involved in the development of the Architect's design that may
be specified in the Contract;
(f) prepare all shop drawings and co-ordination drawings required by the Contract;
(g) carry out the maintenance of mechanical and electrical equipment where required
to do so by the Contract for the period of time so specified;
(h) take responsibility for the care of the Works, except for loss or damage arising
from the Excepted Risks, from the Commencement Date until 14 days after
Substantial Completion of the Works or 14 days after the determination of the
employment of the Contractor, whether valid or not, whichever is earlier, except
that the Contractor's responsibility for the care of the Works shall terminate in
relation to a Section or Relevant Part 14 days after the Employer takes possession
of that Section or Relevant Part; and
16
Contractor's obligations (cont'd)
(i) carry out the construction of and complete the Works using materials, goods and
workmanship of the types, standards and quality specified in the Contract.
(2) Where the Contract requires the Contractor to prepare details, to carry out the
design or the development of the Architect's design, unless the requirement of fitness
for purpose is specifically stated, the design or the development of the Architect's design
shall be carried out with reasonable skill and care and the Contractor shall be responsible
to the Employer for such work.
Contractor's responsibility
The Contractor shall remain wholly responsible for carrying out and completing the
Works in accordance with the Contract whether or not the Architect or the Architect's
representative, if appointed:
(a) visits the Works or a place where materials or goods are being manufactured or
stored, work is being prepared, or design is being carried out;
(d) includes the value of any materials, goods or work in an Interim Certificate.
(c) the descriptive schedules and other similar documents referred to in clause 5.3(c);
(d) the Nominated Sub-Contract documents and the Nominated Supply Contract
documents referred to in clauses 5.4 and 5.5; and
(e) the further drawings, details, descriptive schedules and similar documents referred
to in clauses 5.6 provided from time to time during the carrying out of the Works.
(2) If the Architect agrees with the Contractor, he shall issue an instruction to resolve
the ambiguity, discrepancy or divergence as soon as practicable after receipt of the
notice from the Contractor and the instruction shall, if considered appropriate by the
Architect, require a Variation.
17
3 Master programme
(a) 6 copies of a master programme prepared for his own purposes for organising,
managing, planning, supervising and co-ordinating the carrying out of the Works
and completing them by the Completion Date;
(b) a method statement describing the methods of construction and the resources
that he intends to use to carry out the Works;
(c) a list of the names and details of the site management and supervisory team
personnel, referred to in clause 10, with job descriptions and details of their durations
on the Site; and
(d) a list of the plant, equipment and temporary works which he intends to supply, use
or construct, as the case may be.
(a) show the activities and the sequence in which the Contractor proposes to carry
out the Works;
(b) show the periods of time estimated for each activity; and
(c) make allowance for the carrying out of Specialist Works, insofar as a general
description of these works is given in the Contract, and work by statutory
undertakers and utility companies as referred to in clause 6.4(1).
(3) The Contractor shall submit 6 copies of any other programme that may be required
by the Contract at the time or times so specified .
. (4) Where any other part of the Contract sets out requirements in respect of the
submissions to be made by the Contractor under clause 3.1, the submissions shall be
made in accordance with those requirements.
Programmes to be updated
3.2 (1) The Contractor shall regularly update the master programme and any other
programme used in carrying out the Works to reflect the current status of the progress
of the Works, and shall submit 6 copies of the updated programme to the Architect at
the intervals stated in the Contract (or, if this is not stated, at 3 month intervals) and in
any event within 28 days of:
(a) an Architect's decision to fix a new Completion Date under clause 25.3;
(b) the Employer taking possession of a Section or a Relevant Part of the Works;
18
3 Master programme (cont'd)
(2) The programme shall be revised to indicate the modifications that the Contractor
believes are necessary to achieve completion of the Works by the Completion Date if
the Contractor decides to take action in response to the Architect's notice under clause
25.5.
(3) Programme updates shall be based upon the logic, activities and durations shown
in the previous programme. Any change to the programme structure apart from activity
status that may be necessary shall be clearly indicated and explained to the Architect.
4 Architect's instructions
(2) Where an Architect's oral instruction requiring a Variation has been confirmed in
writing by the Contractor under clause 4.2(1) and not dissented to by the Architect, the
Architect shall issue the written instruction for a Variation for record purposes as soon
as practicable after the Contractor's confirmation.
19
4 Architect's instructions (cont'd)
(2) If the Contractor disagrees that the Architect is empowered by the Conditions to
issue an instruction he may within 7 days of receipt of that instruction require the
disagreement to be resolved under clause 41.
(3) If the Contractor does not begin to comply with an instruction within 7 days after
receipt of a written notice from the Architect requiring compliance with that instruction
in accordance with clause 4.3(1) and the Architect issues a certificate to that effect by
special delivery, the Employer may, without prejudice to his other rights and remedies,
engage other persons to carry out that instruction. All additional costs incurred by the
Employer in connection with the employment of the other persons to carry out that
instruction may be recovered from the Contractor under clause 40 or as a debt.
(4) The Contractor shall provide reasonable access to the persons engaged by the
Employer under clause 4.3(3) and shall permit them to carry out their work without
hindrance.
(a) carry out all necessary preventative work without waiting for an Architect's
instruction; and
(b) immediately inform the Architect of the emergency and of the action taken or
preventative work being carried out.
(2) The Architect shall issue an instruction confirming a Variation for preventative work
carried out initially without an Architect's instruction, provided that the work was not
required to be carried out in fulfilment of a Contractor's obligation or because of a
breach of contract or other default by the Contractor or any person for whom the
Contractor is responsible.
(b) the Form of Tender submitted by the Contractor together with the Employer's letter
of acceptance of the Contractor's tender and any correspondence between the
parties expressed to form part of the Contract;
20
Documents forming the Contract and other documents (cont'd)
(2) The order of precedence of the documents forming the Contract shall be as listed
in paragraphs (a) to (g) above.
(3) As provided for in clause 1.7, the accuracy of the quantities in the Schedule of
Quantities and Rates shall be at the Contractor's risk. The quantities shall not form part
of the Contract but the rates shall form part of the Contract.
(a) 1 copy, certified on behalf of the Employer as a true copy, of each of the documents
forming the Contract;
(b) 3 further copies of the Contract Drawings and the Specification; and
21
5 Documents forming the Contract and other documents (cont'd)
(3) It shall be at the sole discretion of the Architect to depide which, if any, of the
supplementary documentation requested by the Contractor the Architect will provide.
(2) The Contractor shall inform the Architect sufficiently in advance of the time that he
requires the supplementary documentation to enable the Architect to fulfil his obligations
under clause 5.7(1).
Documents on Site
5.9 The Contractor shall keep on the Site so as to be available to the Architect and the
Quantity Surveyor at all reasonable times 1 copy of:
(e) the descriptive schedules or other similar documents referred to in clause 5.3
prepared by the Architect before the acceptance of the Contractor's tender;
22
5 Documents forming the Contract and other documents (cont'd)
(g) the supplementary documentation referred to in clause 5.6 provided by the Architect
from time to time during the carrying out of the Works; and
(h) all other documents that the Contractor is required to keep on Site in fulfilment of
his statutory obligations.
Return of drawings
5.10 The Contractor shall return to the Architect all drawings, specifications, details,
descriptive schedules and other similar documents provided under clause 5, if required
by the Architect to do so, either upon the issue of the Final Certificate or the final
conclusion of any proceedings to which the Contractor is a party, whichever is later
and the Contractor may take copies for his own records.
(2) The Contractor shall assign to the Employer (so far as he is lawfully able to do so)
the benefits of all suppliers' and sub-contractors' warranties, guarantees or other ancillary
agreements for materials, goods or work insofar as they are required by the Contract,
Nominated Sub-Contracts or Nominated Supply Contracts, other than the direct
warranties to the Employer required under the Nominated Sub-Contracts and Nominated
Supply Contracts, within 60 days after the issue of the SUbstantial Completion Certificate
for the whole of the Works.
(2) Where the drawings referred to under clauses 5.3, 5.4, 5.5 and 5.6 have been
issued electronically, the Contractor shall, if so required by the Architect, provide the
as-built drawings electronically.
(2) Neither the Employer, the Architect nor the Quantity Surveyor shall divulge any of
the rates or prices in the Schedule of Quantities and Rates or use them except for the
purposes of the Contract and any proceedings relating to the Contract.
23
5 Documents forming the Contract and other documents (cont'd)
6 Statutory obligations
Statutory Requirements
6.1 The Contractor shall comply with and give the notices required by any Ordinance,
regulation, rule, order or by-law applicable to the Works ('the $tatutory Requirements')
which are to be complied with by the Contractor.
(2) If the Architect agrees with the Contractor, he shall issue an instruction to resolve
the infringement as soon as practicable after receipt of the notice and the instruction
shall, if appropriate, require a Variation.
Fees or charges
6.3 (1) The Contractor shall pay all fees or charges legally demandable under the Statutory
Requirements.
(2) The net amount of those fees or charges paid by the Contractor shall be added to
the Contract Sum unless t.hey:
(a) are fees or charges that the Contractor is liable to pay under the Statutory
Requirements, and the liability was known prior to the date for submission of tenders
and has not been increased;
24
Statutory obligations (cont'd)
(2) The Contractor shall allow those persons reasonable access to the Site, permit
them to carry out their work and provide them with the facilities referred to in clause 31.
(3) Statutory undertakers or utility companies engaged under contracts with the
Employer to carry out work directly connected with or ancillary to but not forming part
of the Works shall be classified as Specialist Contractors as referred to in clause 30.1.
(4) Statutory undertakers or utility companies engaged under contracts with the
Contractor or a Nominated Sub-Contractor to carry out work forming part of the Works
shall be classified as sub-contractors or sub-sub-contractors as the case may be.
(2) The Contractor shall be responsible for accurately setting out the Works and shall
correct any error arising from inaccurate setting out at his own cost unless the Architect
accepts the error without correction subject to a reasonable reduction in the Contract
Sum having regard to the Employer's loss of value of the Works and any expenses that
he may incur arising from the inaccurate setting out.
(2) Where the Contractor is responsible for the selection of the materials and goods in
accordance with a performance specification or otherwise, the materials and goods
must be fit for the purpose stated in the Contract.
(3) If any of the specified materials or goods are not procurable, then the Contractor
shall submit alternative proposals for materials or goods of similar type and standard
and of comparable quality and price to the Architect for his approval; and
25
8 Materials, goods, workmanship and work (cont'd)
(a) if the proposed alternative materials or goods are of similar type and standard and
of comparable quality and price to those specified, and the Architect approves
them, the substitution of the alternative materials or goods for those specified
shall be made with no adjustment to the Contract Sum; or
(b) if the proposed alternative materials or goods are not of similar type and standard
or comparable quality or price to those specified, and the Architect approves them,
he shall instruct a Variation to adjust the type, standard, quality or price.
(4) The Contractor shall provide the Architect, upon his request, with vouchers, test
certificates or other evidence to satisfy the Architect that the materials and goods comply
with the Contract.
(5) The Contractor's workmanship must be of the standard and quality described in
the Contract to the Architect's satisfaction.
(6) All work must be carried out in a proper and workmanlike manner in accordance
with the Contract or, in the absence of any specific performance requirements, to the
Architect's satisfaction.
(2) In addition to the tests specified in the Contract, the Architect may instruct the
Contractor to open up for inspection any work covered up and to carry out, or arrange
for a third party to carry out, tests of materials and goods (whether or not already
incorporated in the Works) and work which has been carried out.
(3) The cost of the testing, the opening up for inspection and any consequential making
good shall be added to the Contract Sum unless:
(b) the inspection or test shows that the materials, goods, workmanship or work are
not in accordance with clause 8;
(c) the inspection or test was considered necessary by the Architect because, as a
result of the failure of a previous inspection or test, further investigation of similar
materials, goods or work was required to establish to his satisfaction their
compliance with clause 8; or
(d) the work was carried out without the inspection notice required by the Contract.
26
Materials, goods, workmanship and work (cont'd)
(a) the removal from the Site and the replacement of materials and goods that are not
in accordance with clause 8;
(b) the repair or demolition, removal and reconstruction of work which, in respect of
materials, goods or workmanship, is not in accordance with clause 8;
(d) a Variation for alternative remedial work to some or all of the materials, goods or
work as is reasonably necessary in consequence of them not being in accordance
with clause 8, with no extension of time or addition to the Contract Sum.
Rectifying defects
The Architect may instruct the Contractor to rectify defects which appear before the
commencement of the Defects Liability Period.
27
9 Intellectual property rights (cont'd)
(2) The Contractor shall indemnify the Employer from and against all claims,
proceedings, damages, costs and expense arising from the Contractor or any sub-
contractor or supplier infringing or being held to have infringed any of the intellectual
property rights referred to in clause 9.3(1).
(2) The team shall be of sufficient strength with personnel of appropriate qualifications,
seniority and experience, having regard to the size, complexity and nature of the Works,
to properly organise, manage, plan, supervise and co-ordinate the carrying out of the
Works.
Construction manager
10.2 (1) The team shall be headed by an experienced and competent construction manager
approved by the Architect.
(2) An instruction issued by the Architect to the construction manager shall be deemed
to have been issued to the Contractor.
(3) The Architect may instruct the Contractor to replace the construction manager or
a member of the team for incompetence or misconduct.
(4) The Contractor shall not remove or replace the construction manager or any member
of the team unless requested by or agreed to by the Architect.
28
Architect's representative
Architect's representative
The Architect and/or the Employer may appoint an architect, engineer, clerk of works
or other person as the Architect's representative to be resident on the Site and acting
under the direction of the Architect.
(c) check that the types, standards and quality of the materials and goods, the standard
and quality of the Contractor's workmanship and the quality of his work are in
accordance with the requirements of the Contract;
(d) check, amend as necessary, and where appropriate sign the records submitted to
him by the Contractor for approval; and
(e) carry out the duties and exercise the powers delegated to him by the Architect
under clause 12.2,
and the Contractor shall give the Architect's representative every reasonable facility for
the performance of these duties.
(2) The delegation shall be in writing and shall be copied to the Contractor. It shall
specify the duties and powers that are delegated and remain in force until changed or
terminated in writing by the Architect.
(2) The Contractor may, within 7 days of receiving an instruction from the Architect's
representative, submit an objection to the Architect who shall confirm, reverse or vary
that instruction within a further 7 days, failing which the instruction shall have no effect.
29
13 Variations, Provisional Quantities Provisional Items and Provisional Sums (cont'd)
(a) the Contractor has the right of reasonable objection to a Variation which imposes
or changes an obligation or restriction on the Contractor regarding access to the
Site, use of any part of the Site or limitation of working space or working hours and
the Architect shall, upon receipt of the Contractor's objection, either confirm or
withdraw the instruction, and if the instruction is confirmed, the Contractor may
refer the matter to arbitration under clause 41 ;
(b) the Contractor's written consent is given to an instruction either nominating a sub-
contractor to carry out work included in the Contract which is to be carried out by
the Contractor or omitting work in order for it to be carried out by others; and
(c) the instruction or accumulation of instructions shall not fundamentally change the
scope or nature of the Works.
(2) The instruction requiring a Variation shall describe the change required to the design,
quality or quantity of the Works or the imposition of or change to any obligation or
restriction on the Contractor and where appropriate the Architect shall issue revised
drawings and/or schedules.
(3) The Contractor has no right to carry out work involving a Variation without a written
instruction from the Architect or confirmation of an oral instruction from the Contractor
except in the event of an emergency as provided for in Clause 4.4.
(a) the carrying out of work or the provision of goods covered by Provisional Quantities
or Provisional Items in the Contract, Nominated Sub-Contracts or Nominated Supply
Contracts; and
(b) the expenditure of Provisional Sums included in the Contract, Nominated Sub-
Contracts or Nominated Supply Contracts.
(b) clause 13.2(a) for the remeasurement of Provisional Quantities and Provisional Items;
and
and the Valuation shall be made in accordance with the rules set out in clause 13.4.
Valuation rules
13.4 (1) Where the Valuation relates to the carrying out of:
30
Variations, Provisional Quantities Provisional Items and Provisional Sums (cont'd)
the work shall be measured and shall be valued in accordance with the following rules:
(i) where the work is the same as or similar in character to and is carried out
under the same or similar conditions to work priced in the Schedule of
Quantities and Rates, and the Variation does not substantially change the
quantity of that work, the rates in the Schedule of Quantities and Rates for
that work shall determine the Valuation;
(ii) where the work is the same as or similar in character to work priced in the
Schedule of Quantities and Rates but is not carried out under the same or
similar conditions, or the Variation substantially changes the quantity of that
work, the rates in the Schedule of Quantities and Rates for that work shall
determine the Valuation but with a fair adjustment for the difference in conditions
or quantity;
(iii) where the work is not the same as or similar in character to any work priced in
the Schedule of Quantities and Rates the work shall be valued at fair rates; and
(iv) the word 'conditions' in clause 13.4(1) shall mean physical conditions and not
financial conditions.
(2) Where the Valuation relates to work which cannot be properly measured and valued
under clause 13.4(1) the work may, with the prior consent of the Architect, be carried
out as daywork and provided that the Contractor:
(a) gives at least 7 days' notice to the Architect before carrying out the work, or where
the work is required urgently, as much prior notice as practicable; and
(b) submits vouchers specifying the time spent daily carrying out the work, the
workmen's names, the materials and goods and the plant and equipment employed
to the Architect for verification within 14 days of the work being carried out,
the work shall be valued at prime cost comprising labour, materials, goods, plant and
equipment plus overheads and profit; and:
(d) where there are no daywork rates in the Contract, priced at:
(i) the labour rates contained in the record of Average Daily Wages of Workers
Engaged in Government Building and Construction Projects published by the
Census and Statistics Department of the Government of the Hong Kong Special
Administrative Region current at the date when the work is carried out;
31
13 Variations, Provisional Quantities Provisional Items and Provisional Sums (cont'd)
(ij) the net cost of materials and goods plus the cost of packing, carriage and
delivery;
(iii) the cost of hiring plant and equipment specifically provided for the work
together with the cost of transportation, fuel, maintenance and insurance; and
(iv) the percentages for overheads and profit on the prime cost of the labour,
materials, goods, plant and equipment that are included in the Contract or,
where no such percentages are included in the Contract, at 15 percent.
(3) Where the Valuation relates to the omission of work included or deemed to have
been included in the Schedule of Quantities and Rates:
(a) the rates for the work in the Schedule of Quantities and Rates shall determine the
Valuation of the work omitted; and
(b) if in the Quantity Surveyor's opinion the Contractor has reasonably incurred expense
which has become wholly or partly unnecessary as a result of the omission of the
work, a fair adjustment shall be made to the Valuation in respect of that expense.
(4) Where the Valuation does not relate to additional or substituted work or the omission
of work but relates only to other matters not involving measured work such as the
imposition of or change to an obligation or restriction and the rules in clauses 13.4(1),
13.4(2) or 13.4(3) cannot reasonably be applied, a fair valuation shall be made.
(5) An appropriate allowance shall be made in a Valuation under clause 13.4 for any
percentage or lump sum adjustment made to the Schedule of Quantities and Rates.
(6) If compliance with a Variation instructed under clause 13.1 or a deemed Variation
under clause 14.3 substantially changes the conditions under which other work is carried
out, and results in the rates in the Schedule of Quantities and Rates for this work
becoming unreasonable or inapplicable, then new rates shall be determined based
upon the rates in the Schedule of Quantities and Rates adjusted by a fair allowance for
the difference in the conditions.
(7) In addition to the Valuation by daywork under clause 13.4(2) of work which cannot
be properly measured and valued under clause 13.4(1), the Architect may instruct the
Contractor, with the Contractor's agreement, to carry out any other work, including
work which can be properly measured and valued under clause 13.4(1), to be valued on
a daywork basis in accordance with clause 13.4(2).
(8) If the Architect instructs a Variation for additional work after Substantial Completion,
clause 13.4(1) shall not apply and a fair valuation shall be made.
(9) No allowance is to be made under clause 13.4 for direct loss and/or expense due
to delay to the progress of the Works, disruption, or any other cause for which the
Contractor can be reimbursed by payment under any other provision of the Conditions.
32
Variations, Provisional Quantities Provisional Items and Provisional Sums (cont'd)
(a) for a variation to the sub-contract works or to the materials and goods to be supplied
under a supply contract;
(b) under clause 13.2(a) for the remeasurement of Provisional Quantities and Provisional
Items in the sub-contract or supply contract; and
(c) under clause 13.2(b) to expend Provisional Sums included in the sub-contract or
supply contract;
[Not used]
Contract Sum
(2) The parties are deemed to have accepted any error whether of arithmetic or not in
the calculation of the Contract Sum stated in Article 2.
33
16 Materials and goods on or off-site
(2) Materials and goods delivered to or adjacent to the Site shall not be removed
without the consent of the Architect. If they have become the property of the Employer
the Contractor shall remain responsible for loss or damage to them except to the extent
that the loss or damage is due to an act or neglect of the Employer or any person for
whom the Employer is responsible.
(3) The Contractor shall indemnify the Employer against loss or damage to materials
and goods stored off-site that have become the property of the Employer, shall be
responsible for the cost of their storage, handling and insurance and shall not remove
them from where they are being stored except for use upon the Works.
Separate Defects Liability Period for each Section and Relevant Part
17.2 (1) If sectional completion of the Works is provided for in the Contract or the Employer
takes possession of a Relevant Part each Section or Relevant Part shall have its own
separate Defects Liability Period.
(2) The Architect shall issue a Substantial Completion Certificate upon Substantial
Completion of each Section or Relevant Part except for the last one. Upon SUbstantial
Completion of the last Section or Relevant Part the Architect shall issue the SUbstantial
Completion Certificate for the Works and Substantial Completion of the whole of the
Works shall be deemed to have taken place on the date stated in that certificate.
(3) The requirements for the issue of a Substantial Completion Certificate under clause
17.2(2) shall be the same as those under clause 17.1.
Rectifying defects
17.3 (1) The Contractor shall rectify all defects, shrinkages or other faults which are identified
during the Defects Liability Period of the Works, a Section or a Relevant Part stated in
the Appendix, and are caused either by materials, goods or workmanship which are not
in accordance with the Contract, by natural causes or as a result of a Specified Peril
occurring during the construction period prior to Substantial Completion.
34
Substantial Completion and defects liability (cont'd)
(2) The Architect shall list the defects to be rectified in schedules of defects which he
shall issue to the Contractor as Architect's instructions from time to time during the
Defects Liability Period. The final schedule of defects shall be issued not later than 14
days after the expiry of the Defects Liability Period.
(3) The Contractor shall rectify the defects specified in the schedules of defects to the
Architect's satisfaction within a reasonable time after receipt of those schedules.
(4) If the Contractor does not comply with the Architect's instruction to rectify the
defects listed in a schedule of defects within a reasonable time the provisions of clauses
4.3(3} and 4.3(4} shall apply.
(5) The Architect may instruct the Contractor not to rectify some or all of the defects
specified in the schedules of defects, in which case a reasonable reduction to the
Contract Sum shall be made for the defects not rectified.
(a) the Defects Liability Period for the Works has expired;
(b) the Contractor has satisfactorily completed all the uncompleted items of work on
the list issued with the Substantial Completion Certificate; and
(c) all defects required to be rectified under clause 17.3 have been satisfactorily rectified.
(2) Upon the completion of rectifying defects to the last Section or Relevant Part in
accordance with clause 17.4 the Architect shall issue a Defects Rectification Certificate
for the Works and the completion of rectifying defects for the whole of the Works shall
be deemed to have taken place on the date stated in the certificate.
35
~~~~~~~~-~~------
Partial possession
18.1 (1) The Employer may, with the Contractor's consent, take possession of a part of the
Works or where sectional completion is provided for in the Contract a part of a Section
before Substantial Completion, and that part of the Works or part of a Section shall be
referred to as a Relevant Part.
(2) If the Employer takes possession of a Relevant Part, the Architect shall issue a
certificate to that effect:
(b) giving the Relevant Date when the Employer took possession of the Relevant Part;
and
(c) stating his assessment of the estimated amount contained in the Contract Sum in
respect of the Relevant Part.
Substantial Completion
18.2 Substantial Completion of the Relevant Part shall be deemed to have occurred on the
Relevant Date and the following shall take effect:
(a) the commencement of the Defects Liability Period for that Relevant Part and the
rectification of defects under clause 17;
(b) the exemption from liability for damage by a Specified Peril under clause 17.6; and
(c) the release of one-half of the Retention relating to that Relevant Part under clause
32.5.
(a) where sectional completion is not contemplated under the Contract, the rate of
liquidated and ascertained damages in respect of the Works shall be reduced,
during the period when the Works remains incomplete after the Relevant Date, by
the same proportion as the estimated amount contained in the Contract Sum for
the Relevant Part bears to the Contract Sum; or
36
Partial possession by Employer (cont'd)
(b) where sectional completion is contemplated Linder the Contract, the rate of
liquidated and ascertained damages in respect of the relevant Section shall be
reduced, during the period when the Section remains incomplete after the Relevant
Date by the same proportion as the estimated amount contained in the Contract
Sum for the Relevant Part bears to the estimated amount contained in the Contract
Sum for the Section.
Assignment
(1) Except where provided otherwise in clause 19.1, neither party shall, without the
written consent of the other, assign or transfer any of his rights or obligations under the
Contract.
(2) The Contractor must fulfil his organization, management, planning, supervision
and co-ordination obligations through the site management and supervisory team
referred to in clause 10 and he shall neither assign nor make arrangements for the
vicarious performance of those functions.
(3) The Employer may assign or transfer the whole or any part of the benefit of the
Contract after Substantial Completion of the Works, a Section or a Relevant Part without
the Contractor's consent. Any assignment shall be notified promptly to the Contractor.
(4) Subject to giving prior notice to the Employer, the Contractor may assign the whole
or any part of the benefit of the Contract for the purpose of obtaining financing for the
carrying out of the Works provided that the assignment does not adversely affect the
Contractor's fulfilment of his obligations under the Contract.
Sub-letting
The Contractor shall be permitted, unless prohibited by the Contract, to sub-let parts of
the Works provided that:
(a) he does not sub-let the whole of the Works or incrementally SUb-let parts of the
Works to the same person to indirectly attain sub-letting of the whole, or substantially
the whole, of the Works and retains his management role as described in clause
19.1 (2) at all times;
(b) the terms of the agreement to sub-let are, so far as is reasonable, consistent with
the terms of the Contract;
(c) he submits a plan of his sub-contracting arrangement giving the names of his key
sub-contractors with their scope of works and such other particulars as may be
required by the Architect;
37
19 Assignment and sub-letting (cont'd)
(d) he does not sub-let any part of the Works to a sub-contractor against whom the
Architect has made an objection giving his reasons;
(e) he removes from the Works any sub-contractor he is instructed by the Architect to
remove; and
(f) the sub-letting of a part of the Works to a Domestic Sub-Contractor does not
relieve the Contractor from any liability or obligation under the Contract and he
remains responsible for carrying out and completing the Works in all respects in
accordance with the Contract and for the acts, defaults, omissions and neglect of
a Domestic Sub-Contractor as fully as if they were his own acts, defaults, omissions
or neglect.
(a) bodily injury to, disease contracted by or the death of any person arising out of, or
in the course of, or by reason of the carrying out of the Works and whether arising
on or off the Site, except to the extent that the injury, disease or death of that
person is due to any act or neglect of the Employer or any person for whom the
Employer is responsible; and
(b) injury or damage to real or personal property ariSing out of, or in the course of, or
by reason of the carrying out of the Works and whether arising on or off the Site, to
the extent that the injury or damage is due to a breach of contract or other default
of the Contractor or any person for whom the Contractor is responsible.
(2) The insurance cover shall be against the liabilities referred to in clause 21.1 (1)
sustained during the period from the Commencement Date until the Defects Rectification
Certificate for the whole of the Works has been issued and the Contractor has finally
left the Site.
(3) As soon as the Contractor becomes aware of any workman or other person
employed on the Works or in connection with the Contract suffering any bodily injury,
contracting a disease or dying, he shall notify the Commissioner for Labour, with a
copy of the notice to the Architect and the insurers.
38
Insurance against injury to persons or property (cont'd)
(a) bodily injury to, disease contracted by or the death of any person arising out of or
in the course of or by reason of the carrying out of the Works and whether arising
on or off the Site; and
(b) injury or damage to real or personal property other than the Works insofar as the
injury or damage arises out of, or in the course of, or by reason of the carrying out
of the Works and whether arising on or off the Site, including injury or damage
caused by any act or neglect of the Employer or any person for whom the Employer
is responsible or by collapse, subsidence, heave, vibration, weakening or removal
of support or lowering of ground water due to any cause other than:
(ii) pressure waves caused by aircraft or other aerial devices traveling at sonic or
supersonic speeds; and
(2) The insurance cover shall be against the liabilities referred to in clause 21.2(1)
sustained during the period from the Commencement Date until the Defects Rectification
Certificate for the whole of the Works has been issued and the Contractor has finally
left the Site.
(a) a cross liability clause to the effect that the insurances shall cover the Employer,
the Contractor, his sub-contractors and their sub-contractors of all tiers as separate
insured;
(b) a waiver of any right of subrogation which the insurers may have against any of the
insured; and
(c) the third party liability insurances against injury or death to any person and injury
or damage to real or personal property under clause 21.2(1) shall each be effected
with the limit of indemnity stated in the Appendix for anyone occurrence or series
of occurrences arising out of one event but unlimited in the aggregate amount for
the period of the insurance.
39
21 Insurance against injury to persons or property (cont'd)
(2) The cover shall be in terms approved by the Architect but in any case cannot be
beyond the best terms currently available.
Policies to be produced
21.4 The party responsible for effecting the insurances under clause 21.2 shall provide
evidence of cover to the other party prior to the Commencement Date and shall produce
the policies of insurance and the premium receipts for inspection and approval by the
other party as soon as practicable afterwards.
(a) costs and expenses in respect of shoring and propping up, testing, dismantling or
demolishing part of the Works, existing constructions on the Site or temporary
works, removing and disposing of debris and damaged materials or goods and
protecting the Works, existing constructions on the Site, temporary works and
materials or goods;
40
Insurance of the Works (cont'd)
incurred in the repair, reinstatement, redesign and supervision following damage to the
Works, existing constructions on the Site, temporary works or materials or goods from
any cause excluding:
(e) the cost of repairing or replacing property which is defective solely due to natural
wear and tear resulting from ordinary use or deterioration, rusting or corrosion;
(g) loss or damage solely due to the total suspension of carrying out the Works where
the insured failed to take reasonable precautions to protect the property insured
and to avoid or reduce the amount of loss or damage;
(h) loss of any property by disappearance or by shortage where the loss is revealed
only by the making of an inventory or periodic stocktaking and is not traceable to
an identifiable event;
(i) loss or damage to materials, goods or work directly resulting from its own defect in
materials, goods or workmanship or fault, defect, error or omission in design, plan
or specification but not excluding resultant damage to any other materials, goods
or work which are lost or damaged as a consequence of those defective materials,
goods or work;
0) loss or damage to property during the period between 14 days after Substantial
Completion and the date of issue of the Defects Rectification Certificate other than
loss or damage arising from a cause occurring prior to the commencement of that
period, or caused in the course of remedying defects or the testing and
commissioning of building services or other installations;
(k) loss or damage to plant, equipment and temporary buildings and their contents
owned or hired by the Contractor or any person for whom the Contractor is
responsible;
(I) ionizing radiation or contamination by radioactivity from any nuclear fuel or from
any nuclear waste from the combustion of nuclear fuel, radioactive toxic explosive
or other hazardous properties of any explosive nuclear assembly or nuclear
component thereof;
(m) pressure waves caused by aircraft or other aerial devices traveling at sonic or
supersonic speeds; and
41
22 Insurance of the Works (cont'd)
(2) If the Contract provides for sectional completion of the Works or the Employer has
taken possession of a Relevant Part, the obligation of the party responsible for effecting
the Contractors' All Risks Insurance of the Works shall terminate in relation to any Section
or Relevant Part 14 days after Substantial Completion of that Section or Relevant Part.
(a) a cross liability clause to the effect that the insurances shall cover the Employer,
the Contractor, his sub-contractors and their sub-contractors of all tiers and
suppliers as separate insured, and
(b) a waiver of any right of subrogation which the insurers may have against any of the
insured.
(a) notify the Architect of the extent, nature and location of the loss or damage
immediately upon discovering it;
(b) follow all of the requirements in the insurance policy, prepare and submit the
insurance ciaim and negotiate with the insurers to achieve a fair settlement; and
(c) restore lost or damaged work, remove and dispose of any debris, repair or replace
materials or goods which have been stolen, lost, destroyed or damaged, and
proceed with carrying out the Works with due diligence and in accordance with the
Contract immediately after any inspection required by the insurers has been carried
out.
42
Insurance of the Works (cont'd)
(2) If the Contractor defaults in effecting or in maintaining the Contractors' All Risks
Insurance of the Works, the Employer may effect and maintain it himself and recover
the cost of the insurance premium from the Contractor in accordance with clause 40 or
as a debt.
(2) The Contractor shall produce the annual policy of insurance, premium receipt and
the endorsement for inspection by the Architect prior to the commencement of the
Works and the annual premium receipt within 14 days after each renewal date.
43
22B Insurance of the Works by the Employer (cont'd)
(2) If the Employer defaults in effecting or in maintaining the Contractors' All Risks
Insurance of the Works, the Contractor may effect and maintain it himself and the cost
of the insurance premium shall be added to the Contract Sum.
22C Insurance of existing building and insurance of the Works by the Employer
(2) If the Employer defaults in effecting or in maintaining the insurances under clauses
22C.1 and/or 22C.2, the Contractor may effect and maintain them himself and the cost
of the insurance premiums shall be added to the Contract Sum.
(3) The Contractor shall be given the right of entry and inspection to carry out a survey
and make an inventory of the existing building and its contents if the clause 22C.1
insurance is to be effected and maintained by the Contractor under clause 22C.3(2).
Possession of Site
23.1 (1) The Employer shall give possession of the Site to the Contractor on or before the
Date for Possession of the Site stated in the Appendix.
44
Possession, commencement and completion (cont'd)
(2) Where the Contract provides for the Employer to give possession of the Site to the
Contractor in two or more parts on the dates stated in the Appendix, the Employer shall
give possession of the Site to the Contractor in parts on or before those dates.
Postponement or suspension
The Architect may issue instructions regarding:
(a) the postponement of the Date for Possession of the Site or a part of the Site;
(b) the postponement of the Commencement Date of the whole or a part of the Works;
or
(2) If a new Completion Date is fixed after the issue of the certificate referred to in
clause 24.1 (1), the fixing of the new Completion Date shall cancel that certificate and
the Architect Shall, if appropriate, issue another certificate to correspond to the new
Completion Date.
(2) The Employer's notice under clause 24.2(1) shall not be given either before the
certificate under clause 24.1 (1) is issued or after the Final Certificate is issued.
(3) The rate per day of liquidated and ascertained damages for the Works or a Section
shall be as stated in the Appendix and adjusted in accordance with clause 18.4 in
regard to the completion of any Relevant Part.
(4) The Employer may recover the liquidated and ascertained damages from the
Contractor under clause 40 or as a debt.
45
24 Damages for non-completion (cont'd)
25 Extension of time
(a) state the likelihood and estimated length of the delay beyond the Completion Date;
(b) set out the material circumstances including the cause of the delay; and
(c) state if the Contractor considers that he is or may become entitled to an extension
of time due to the effects of an event listed in clause 25.1 (3) (referred to in clause
25 as a "listed event") and if so identify which of the listed events he believes to be
the cause of the delay.
(c) the hoisting of tropical cyclone warning signal No.8 or above or the announcement
of a Black Rainstorm Warning;
46
Extension of time (cont'd)
(g) an Architect's instruction under clause 8.2 requiring the opening up for inspection
of work covered up or the testing of materials, goods or work and the consequential
making good where the cost of that opening up, testing and making good is required
by that clause to be added to the Contract Sum;
(i) an Architect's instruction under clause 13.2 resulting in an increase in the work to
be carried out of sufficient magnitude to cause delay, provided that the variance
was not apparent from the Contract Drawings;
(i) the postponement of the Date for Possession of the Site or part of the Site;
(ii) the postponement of the Commencement Date of the whole or a part of the
Works; or
(iii) the postponement or suspension of the whole or a part of the Works, unless:
(k) compliance with clause 34.1 or with an Architect's instruction under clause 34.2
requiring the Contractor to permit the examination, excavation or removal by a
third party of an object of antiquity found on the Site;
(I) late instructions from the Architect, including those to expend a Prime Cost Sum
or a Provisional Sum, or the late issue of the drawings, details, descriptive schedules
or other similar documents referred to in clause 5.6 except to the extent that the
Contractor failed to comply with clause 5.7(2);
47
25 Extension of time (cont'd)
:;
:··'
..1····.:.
(s) the failure of the Employer to give possession of the Site or, under clause 23.1 (2),
a part of the Site on the Date for Possession of the Site or the part of the Site
stated in the Appendix, or the Employer subsequently depriving the Contractor of
the whole or a part of the Site;
(t) delay to the Works due to time not reasonably foreseen by the Contractor in
obtaining approval or consent from a Government department;
(v) an act of prevention, a breach of contract or other default by the Employer or any
person for whom the Employer is responsible.
(a) continuously use his best endeavours to prevent or mitigate delay to the progress
of the Works, however caused, and to prevent the completion of the Works being
delayed or further delayed beyond the Completion Date, provided that the words
"best endeavours" shall not be construed to mean that the Contractor is obliged to
spend additional money, without reimbursement under clause 26, to accelerate
the carrying out of the Works to recover delay that the Contractor did not cause;
and
(b) do all that may reasonably be required to the Architect's satisfaction to proceed
with the Works.
48
Extension of time (cont'd)
(a) substantiation that the listed event is the cause of the delay; and
(b) particulars of the cause, effect and length of the delay to the completion of the
Works or a Section beyond the Completion Date in sufficient detail to enable the
Architect to make a decision under clause 25.3(1).
(2) Where the delay envisaged by the Contractor's first notice of delay commences
later than 28 days after the Contractor has given the first notice to the Architect, the
Contractor shall give the Architect a statement to this effect and shall submit the second
notice within 28 days of the commencement of the delay.
(3) Where the listed event has a continuing effect the Contractor shall:
(i) substantiation that the listed event is the cause of the delay; and
(ii) interim particulars including details of the cause and effect and an estimate of
the length of the delay to the completion of the Works or a Section beyond the
Completion Date;
(b) make further submissions to the Architect at intervals not exceeding 28 days giving
further interim particulars and estimates of the length of the delay until the delay
ceases;
(c) within 14 days after the delay ceasing, submit to the Architect final particulars of
the cause, effect and length of the delay to the Works or a Section beyond the
Completion Date in sufficient detail to enable the Architect to make a decision
under clause 25.3(1).
(2) The Architect shall give the extension of time, and the reasons for his decision as
soon as practicable but in any case within 60 days after the receipt of the particulars
submitted with the second notice under clause 25.2.
(3) If, after receiving the first and second notices, the Architect decides not to fix a
later date as a new Completion Date:
(a) the Architect shall notify the Contractor of this, giving the reasons for his decision,
as soon as practicable but in any case within 60 days of receipt of the particulars
submitted with the second notice under clause 25.2; and
49
25 Extension of time (cont'd)
(b) the Architect may revise his decision and fix a later date as the new Completion
Date if the Contractor provides further and better particulars within 28 days of the
Architect's notification under clause 25.3(3)(a).
(4) If the Contractor fails to submit the notices within the time frame prescribed under
clause 25.1 or clause 25.2 but a first notice is nevertheless submitted, the Architect
shall, if he is satisfied that the completion of the Works or a Section has been delayed
by the listed event stated in the Contractor's first notice, give an extension of time to
the Contractor under clause 25.3 to the extent that he is able to on the information
available.
(5) If after fixing a new Completion Date under clause 25.3, the Architect issues an
instruction under:
(a) clause 13.1 for the omission of work or the omission or diminution of an obligation;
or
(b) clause 13.2 resulting in a substantial reduction of the work to be carried out, provided
that the variance was not apparent from the Contract Drawings,
the Architect may fix an earlier Completion Date, though not earlier than the Completion
Date stated in the Appendix, if it is fair and reasonable to do so.
(6) If the Architect gives an extension of time to the Contractor under clause 25.3
because of a listed event that occurs in the period of delay after the Completion Date
but before the Date of Substantial Completion, he shall add this extension of time to the
total of any extensions of time previously granted when fixing a new Completion Date,
even though the listed event may have occurred later than the date that the Architect
fixes as the new Completion Date.
(7) The Architect may fix a new Completion Date under clause 25 earlier or later than
that previously fixed, during the period of delay between the Completion Date and the
Date of Substantial Completion (if Substantial Completion takes place later than the
Completion Date) if it is fair and reasonable to do so having regard to any of the listed
events, whether by reviewing a previous decision, taking into account any further and
better particulars that may be submitted by the Contractor, or by taking into account
any extension of time granted under clause 25.3(6).
(8) The Architect shall finally decide the overall extension of time, if any, that he
considers the Contractor is entitled to under clause 25, whether by reviewing any
extension of time previously granted or otherwise, and shall fix the Completion Date,
which may be the same as but not earlier than the Completion Date previously fixed,
within 90 days after Substantial Completion or such later date as may be agreed by the
parties.
50
Extension of time (cont'd)
Rate of progress
(1) If, in the Architect's opinion, the rate of progress of the Works is, at any time, too
slow to ensure that the Works will be completed by the Completion Date for any reason
which does not entitle the Contractor to an extension of time under clause 25.3, the
Architect may notify the Contractor accordingly.
(2) After receiving the Architect's notification the Contractor may, at his own discretion
and with no entitlement to receive additional payment, take the measures that he
considers necessary to expedite the progress to complete the Works by the Completion
Date.
(2) The Architect shall notify each Nominated Sub-Contractor and Nominated Supplier
of any new Completion Date fixed under clause 25.3.
(a) a description of the proposed measures necessary to achieve the saving required·
by the Architect and a detailed quotation for carrying out those measures with full
supporting particulars;
(b) the Contractor's own estimate of the saving in time that could be achieved by
carrying out the measures if the Contractor has reservations about achieving the
saving in time requested by the Architect; and
(c) details of any other terms and conditions required by the Contractor in consideration
for agreeing to carry out the measures.
51
26 Delay recovery measures (cont'd)
(2) Within 14 days of receiving the delay recovery proposals, the Architect shall notify
the Contractor in writing that either the delay recovery proposals are agreed, or disagreed,
or that he wishes to discuss and agree revised proposals with the Contractor.
(2) If the Architect and the Contractor cannot reach agreement on the Contractor's
delay recovery proposals within 14 days of the Architect's notice to discuss them under
clause 26.2(2), the Architect may, after receiving written directions from the Employer,
instruct the Contractor to carry out the measures in the absence of an agreement and
the Contractor shall do so in accordance with the Architect's instruction and:
(a) the Contractor shall prepare and submit to the Quantity Surveyor all the information
and documents relating to the cost of carrying out the measures that the Quantity
Surveyor may reasonably require; and
(b) the Quantity Surveyor shall ascertain the amount of additional payment to be made
to the Contractor for carrying out the measures, based on the extra cost incurred
by the Contractor with the addition of 15 percent for overheads and profit, within
a reasonable time after receiving the information and documents under clause
26.3(2)(a).
Contractor to be reimbursed for the cost of preparing the proposal if delay recovery not
instructed
26.5 (1) If the Architect and the Contractor do not reach an agreement about the terms of
the Contractor's delay recovery proposals and the Architect does not instruct the
Contractor to carry out these proposals, then the Contractor shall be reimbursed for
the cost of preparing the proposals.
52
Delay recovery measures (cont'd)
(2) The Contractor shall submit to the Quantity Surveyor a statement of his costs with
full supporting details and the Quantity Surveyor shall ascertain the amount of additional
payment to be made as reimbursement to the Contractor.
(b) an Architect's instruction under clause 8.2 requiring the opening up for inspection
of work covered up or the testing of materials, goods or work and the consequential
making good where the cost of such opening up, testing and making good is
required by that clause to be added to the Contract Sum;
(d) an Architect's instruction under clause 13.2 resulting in an increase in the work to
be carried out of sufficient magnitude to cause delay or disruption, provided that
the variance was not apparent from the Contract Drawings;
(i) the postponement of the Date for Possession of the Site or a part of the Site;
(ii) the postponement of the Commencement Date of the whole or a part of the
Works; or
(iii) the postponement or suspension of the whole or a part of the Works, unless:
(I) compliance with clause 34.1 or with an Architect's instruction under clause 34.2
requiring the Contractor to permit the examination, excavation or removal by a
third party of an object of antiquity found on the Site;
53
27 Direct loss and/or expense (cont'd)
(g) late instructions from the Architect, including those to expend a Prime Cost Sum
or a Provisional Sum, or the late issue of the drawings, details, descriptive schedules
or other similar documents referred to in clause 5.6, except to the extent that the
Contractor failed to comply with clause 5.7(2);
0) the failure of the Employer to supply or supply on time .materials, goods, plant or
equipment that he agreed to provide for the Works;
(k) the failure of the Employer to give possession of the Site or, under clause 23.1 (2),
a part of the Site on the Date for Possession of the Site or the part of the Site
stated in the Appendix, or subsequently the Employer depriving the Contractor of
the whole or a part of the Site; and
(I) any other delay or disruption for which the Employer is responsible including an
act of prevention or a breach of contract.
(a) the direct loss and/or expense was incurred because the progress of the Works
was delayed or disn!pted by the qualifying event set out in the Contractor's claim;
(b) the Contractor has not been and will not be reimbursed by a payment under any
other provisions of the Contract; and
(2) The ascertainment of the Contractor's claim shall be made as soon as practicable
but in any case within 60 days of receipt of the build-up of the claim and the particulars
submitted under clause 28.2(2)(a) to (d) or clause 28.2(4)(c), as the case may be.
54
Direct loss and/or expense (cont'd)
(2) The Architect shall instruct the Quantity Surveyor to ascertain, in accordance with
the Nominated Sub-Contract, the amount of any additional payment for direct loss
and/or expense incurred by the Nominated Sub-Contractor if the Architect is satisfied
that:
(a) the direct loss and/or expense was incurred because the progress of the Nominated
Sub-Contract works was delayed or disrupted by the event, being an event that
qualified the Nominated Sub-Contractor for direct loss and/or expense under the
sub-contract, set out in the Nominated Sub-Contractor's claim; and
(b) the Nominated Sub-Contractor has complied with all of the requirements of the
Nominated Sub-Contract in respect of his claim.
(4) An amount of additional payment for direct loss and/or expense incurred by the
Nominated Sub-Contractor due to an act, omission or default of the Contractor shall be
dealt with between the Contractor and the Nominated Sub-Contractor and shall not be
added to the sub-contract sum.
(a) within 28 days of it becoming apparent to the Contractor that an event has occurred
which gives rise to a claim and he shall include in the notice the contractual
provisions upon which the claim is based; or whether earlier or later
(b) within 7 'lays after receipt of a claim for additional payment from a Nominated
Sub-Contractor under clause 27.4.
(2) The Contractor need not give the notice required under clause 28.1 (1) in the case
of an Architect's instruction under clauses 13.1 or 13.2 insofar as that instruction is
subject to a Valuation under clause 13.
55
28 Notice of claims for additional payment (cont'd)
(2) The Contractor shall as soon as practicable but in any case within 60 days of
giving notice under clause 28.1, submit to the Architect:
(3) Where the effect of the event giving rise to the claim set out in the Contractor's
notice of claim commences later than 60 days after the Contractor has given notice of
his intention to claim, the Contractor shall give the Architect a statement to that effect
and submit the information under clause 28.2(2) within 60 days of the commencement
of the effect of the event giving rise to the claim.
(4) Where the event giving rise to the claim has a continuing effect the Contractor shall:
(ii) an estimate of and build-up of the amount of the claim which shall be
considered to be an interim amount; and
(b) make further submissions to the Architect at intervals not exceeding 28 days giving:
(ii) up to date estimates of the amounts of the claim with further build-ups of
these amounts; and
(c) within 14 days after it becomes possible to ascertain the total claim, make the final
submission to the Architect as required under clause 28.2(2) paragraphs (a) to (d).
56
Nominated Sub-Contractors and Nominated Suppliers
(a) an Architect's instruction under clause 13.1 requiring a Variation for additional or
substituted work;
(c) an agreement between the Contractor and the Architect on behalf of the Employer,
(d) a sub-contractor to carry out the work provided for by the Prime Cost Sum and the
Contractor shall enter into a sub-contract with that sub-contractor, who shall then
become a Nominated Sub-Contractor, in accordance with the terms stipulated in
the instruction; or
(e) a supplier to supply the materials or goods provided for by the Prime Cost Sum
and the Contractor shall enter into a supply contract with that supplier, who shall
then become a Nominated Supplier, in accordance with the terms stipulated in the
instruction.
(2) The term 'Nominated Supplier' shall not apply to a supplier of materials or goods
which are specified in the Contract to be incorporated into the Works unless the materials
or goods are the subject of a Prime Cost Sum even if that supplier is the sole supplier of
those materials or goods.
(b) there are reasonable grounds for believing that the financial standing, solvency,
technical competence or reliability of that sub-contractor or supplier is not such
that a prudent contractor, having regard to the size and nature of the sub-contract
works or supply contract, would be willing to employ as a Nominated Sub-
Contractor or Nominated Supplier;
(c) there are reasonable grounds for believing that the tender sum is not financially
viable; or
(d) the programme for carrying out the sub-contract works or for the delivery of the
materials and goods is unreasonable.
57
29 Nominated Sub-Contractors and Nominated Suppliers (cont'd)
(2) Where the Contractor is notified of the tender list of sub-contractors and suppliers
during the tender period, the Contractor shall, if he has an objection to a sub-contractor
or supplier on the list, register his objection giving his reasons with his tender submission.
(3) Where the Contractor is notified of the tender list of sub-contractors and suppliers
after the award of the Contract, the Contractor shall, if he has an objection to a sub-
contractor or supplier on the list, register his objection giving his reasons within 14 days
of being notified of the list of tenderers or, if a sub-contractor or supplier who is not on
this list is nominated, within 14 days of receipt of the nomination instruction.
(4) If the Contractor made his objection to the inclusion of a sub-contractor or supplier
on the tender list in his tender submission or within the time required under clause
29.2(3) and the Architect considers the objection to be valid, the Architect shall either:
(a) withdraw the sub-contractor's or supplier's name from the tender list; or
(b) refuse to withdraw the sub-contractor's or supplier's name from the tender list and
notify the Contractor accordingly.
(5) If the Contractor made his objection to the nomination of the sub-contractor or
supplier within the time required under clause 29.2(3), and the Architect considers the
objection to be valid, the Architect shall either:
(ii) instruct the Contractor to carry out the work himself or supply the materials or
goods himself through a supplier approved by the Architect in which case the
instruction shall have the same effect as an instruction to expend a Provisional
Sum under clause 13.2; or
(b) refuse to withdraw the nomination instruction and notify the Contractor accordingly.
(6) Where the Architect, notwithstanding his acceptance of the validity of the
Contractor's objection, either refuses to withdraw the sub-contractor's or supplier's
name from the tender list and subsequently nominates that sub-contractor or supplier,
or refuses to withdraw the nomination instruction, the Contractor shall enter into a sub-
contract with that sub-contractor or a supply contract with that supplier.
(7) If during the carrying out of the sub-contract or the supply contract, the Contractor
believes that the sub-contractor or supplier nominated under clause 29.2(6) has caused
delay or disruption to the carrying out of the Works, he may apply for an extension of
time under clause 25.1 (3)(n) and/or additional payment for direct loss and/or expense
under clause 27.1 (2)(h) but only to the extent that the delay or disruption was attributable
to the grounds for objection raised by the Contractor to the nomination of the sub-
contractor or supplier.
58
Nominated Sub-Contractors and Nominated Suppliers (cont'd)
(2) If the Architect instructs the Contractor to enter into a sub-contract or supply
contract using either amended standard conditions or conditions that are different from
the standard conditions, then, unless the Contractor was advised of this requirement
with a copy of the required sub-contract conditions or supply contract conditions before
submitting his tender, the Architect shall issue an instruction requiring a Variation in
respect of the differences between the two sets of sub-contract conditions or supply
contract conditions.
(a) calculate the amount owing to each Nominated Sub-Contractor and Nominated
Supplier in accordance with the sub-contract and supply contract;
(b) notify the Contractor of the amount included in the Interim Certificate for each
Nominated Sub-Contractor and Nominated Supplier; and
(c) notify each Nominated Sub-Contractor and Nominated Supplier, at the time the
Interim Certificate is issued, of the amount of the interim payment included for that
sub-contractor and supplier in the Interim Certificate and the amount of Retention
held by the Employer.
59
29 Nominated Sub-Contractors and Nominated Suppliers (cont'd)
(2) The Contractor shall pay each Nominated Sub-Contractor and Nominated Supplier
the amount included for that Nominated Sub-Contractor or Nominated Supplier in the
Interim Certificate, less any amount properly deductible by the Contractor, within 14
days, or such other time as may be stated in the sub-contract or supply contract, of the
Contractor receiving payment from the Employer.
(3) The Contractor shall keep proper and detailed accounts and records of all payments
to Nominated Sub-Contractors and Nominated Suppliers and shall make them available
for inspection by the Architect.
(2) The Contractor may withhold an amount from the payment included in an Interim
Certificate for a Nominated Sub-Contractor or Nominated Supplier if he provides
sufficient substantiation to satisfy the Architect that
(4) Neither the existence nor the exercise of the Employer's power under clause
29.8(3) shall make him liable to pay a Nominated Sub-Contractor or Nominated Supplier
direct.
60
Nominated Sub-Contractors and Nominated Suppliers (cont'd)
(2) If in the Architect's opinion the Nominated Sub-Contractor has failed to complete
the sub-contract works on time the Architect shall issue a certificate to the Contractor
to that effect in the form required by the sub-contract within 28 days of the Contractor's
notification under clause 29.11 (1), provided that the Architect is satisfied that the
Contractor has followed the provisions of clause 29.9, and shall issue a copy of his
certificate to the Nominated Sub-Contractor.
(a) the sub-contract works have been completed in accordance with the sub-contract
or the supply of goods has been completed in accordance with the supply contract;
(b) the Architect and the Contractor are satisfied that the Nominated Sub-Contractor
. or Nominated Supplier has remedied all defects which have appeared and which
the Nominated Sub-Contractor or Nominated Supplier has to remedy under the
sub-contract or supply contract; and
61
29 Nominated Sub-Contractors and Nominated Suppliers (cont'd)
(2) The Contractor shall pay the Nominated Sub-Contractor or Nominated Supplier
the amount included for him in the Interim Certificate, less any amount properly deductible
by the Contractor, within 14 days, or such other time as may be stated in the sub-
contract, of the Contractor receiving payment from the Employer.
(3) Upon final payment to the Nominated Sub-Contractor or the Nominated Supplier:
(a) the Limit of Retention stated in the Appendix shall be reduced by the amount of
retention in respect of the sub-contract or supply contract; and
(b) the Contractor shall be discharged from any further liability for rectifying defects or
other faults in the sub-contract works or the goods during the Defects Liability
Period except for any defects not apparent at the time that the final payment was
made.
Re-nomination
29.13 (1) If the employment of a Nominated Sub-Contractor is determined or a supply contract
is terminated for any reason, the Architect, as soon as practicable, shall nominate a
replacement sub-contractor or supplier to complete the work sub-contracted to the
original Nominated Sub-Contractor or to supply the materials and goods, or the
equivalent of the materials or goods, that were to have been supplied by the original
Nominated Supplier, and the Contractor shall immediately enter into a sub-contract or
supply contract with the replacement sub-contractor or supplier.
(4) The provisions of clauses 29.13(1), 29.13(2) and 29.13(3) shall also apply in the
event of the determination of the employment of a replacement sub-contractor or the
termination of a supply contract with a replacement supplier.
62
Nominated Sub-Contractors and Nominated Suppliers (cont'd)
(5) The Contractor shall have the same right of reasonable objection to the nomination
of a replacement Nominated Sub-Contractor or a replacement Nominated Supplier as
he had under clause 29.2 to the nomination of the original Nominated Sub-Contractor
or Nominated Supplier, and provided that the Contractor registers his objection giving
his reasons within 14 days of the nomination of a replacement Nominated Sub-Contractor
or replacement Nominated Supplier, the provisions of clause 29.2, where appropriate,
shall apply.
Architect's consent
29.14 The Contractor shall not determine the employment of a Nominated Sub-Contractor or
terminate a supply contract with a Nominated Supplier without the Architect's consent.
(a) a Specialist Contractor who, under Clause 6.4(3), shall include a statutory undertaker
or utility company engaged by the Employer to carry out work;
(2) Where the Contract does not provide the information referred to in clause 30.2(1),
the Contractor shall still allow the Specialist Contractor reasonable access to the Site
and permit him to carry out his work on the condition that if the Contractor incurs
additional costs by doing so he may submit a detailed claim with supporting particulars
to the Architect for reimbursement of these costs. If the Architect is satisfied that the
Contractor has incurred additional costs, the Architect shall instruct the Quantity Surveyor
to ascertain the amount of additional payment to be made.
(3) The Contractor shall allow persons engaged by the Employer under clause 4.3(3)
reasonable access to the Site and permit them to carry out their work without hindrance
as provided in clause 4.3(4).
63
30 Persons engaged by Employer (cont'd)
(4) The Contractor shall allow a person referred to as a third party under clause 34.2
reasonable access to the Site and permit him to examine, excavate or remove an object
of antiquity upon an instruction from the Architect to do so under that clause.
(2) The Interim Certificate shall state the amount due to the Contractor from the ·1
:1
Employer and the Employer shall pay that amount to the Contractor, less any monies 1
deductible by the Employer under clause 32.1 (6), within the period for payment of
certificates stated in the Appendix.
(3) After the issue of the Substantial Completion Certificate for the whole of the Works,
Interim Certificates shall only be issued when further amounts are, in the Quantity
Surveyor's opinion, due to the Contractor.
(4) The Contractor shall submit to the Quantity Surveyor, at least 14 days before the
date on which an Interim Certificate is due to be issued, a statement setting out the
Contractor's estimate of the gross valuation of the work in progress inciuding:
(a) the amount estimated for each of the items referred to in clause 32.2(3);
(b) a priced list of the materials and goods either delivered to or adjacent to the Site or
stored off-site and to be included in the Interim Certificate under clause 32.3;
(c) all the accounts, vouchers, receipts and other documents that may reasonably be
required by the Quantity Surveyor; and
(d) the statements, accounts, vouchers, receipts and other documents submitted to
him by the Nominated Sub-Contractors and Nominated Suppliers in accordance
with their sub-contracts or supply contracts.
64
Certificates and payments (cont'd)
(5) The Quantity Surveyor shall make an interim valuation of the work in progress in
accordance with clause 32.2 to determine the estimated amount due in an Interim
Certificate and shall submit his valuation to the Architect at least 7 days before the
Interim Certificate is due to be issued.
(6) The Employer may make any deduction authorised by the Contract from the amount
due to the Contractor under an Interim Certificate, whether or not any Retention is
included in that Interim Certificate, provided that he gives a notice to the Contractor by
special delivery stating the amount of the deduction, a build-up of that amount and the
reason for it at least 7 days before making the deduction.
(b) the total amount stated as due in each Interim Certificate previously issued.
(2) The estimated gross valuation of the work in progress shall be the total of the
amounts listed in clause 32.2(3) less the total of the amounts listed in clause 32.2(4).
(3) The following estimated amounts shall be included in the gross valuation:
(a) the value of the permanent work properly carried out including any additional work
or obligation instructed as a Variation to the extent that this additional work or
obligation has been completed or fulfilled in whole or in part;
(b) the proportion of the value of temporary works properly carried out where their
value is included as a separate sum in the Schedule of Quantities and Rates;
(c) the proportion of the value of a preliminary item properly provided or carried out by
the Contractor where its value is included as a separate sum in the Schedule of
Quantities and Rates;
(d) the value of materials or goods on or adjacent to the Site provided that:
(iii) they are adequately protected against weather, other damage or theft.
(e) the value of materials or goods to be incorporated into the permanent Works before
they are delivered to or adjacent to the Site and to be included in an Interim
Certificate in accordance with clause 32.3;
65
32 Certificates and payments (cont'd)
(f) the amounts payable for work carried out by Nominated Sub-Contractors in
accordance with the sub-contracts;
(g) the amount payable in respect of a Contractor's tender accepted under clause
29.4 for work provided for by a Prime Cost Sum;
(h) the amounts payable for materials or goods supplied by Nominated Suppliers in
accordance with the supply contracts;
(i) the appropriate proportion of the sums included as separate items in the Schedule
of Quantities and Rates for:
(ii) opening up and testing materials, goods or work under clause 8.2; or
(iii) effecting and maintaining insurances resulting from the Employer's failure to
insure under clause 228.2(2) or 22C.3(2);
(k) the amount ascertained as additional payment for direct loss and/or expense under
clause 27.2;
'.~
(I) the amount payable for reimbursement for increases in the costs of labour and/or j,
materials under clause 38 if applicable; and .1.,
(m) any other amount which is required by the Contract to be added to the Contract
Sum.
(4) Without prejudice to the Employer's right of set off, the following estimated amounts
shall be deducted from the gross valuation:
(i) correction of errors in setting out the Works under clause 7(2);
(b) the amount allowable to the Employer for decreases in the costs of labour and/or
materials under clause 38 if applicable; and
66
32 Certificates and payments (cont'd)
(c) any other amount which is required by the Contract to be deducted from the Contract
Sum.
Calculation of Retention
32.4 (1) The Retention on the payment for the Contractor's work in progress shall be
calculated by applying the percentage stated in the Appendix as the Retention
Percentage to the estimated gross valuation referred to in clause 32.2 exclusive of the
amounts payable:
(d) for any adjustment for fluctuations in the costs of labour or materials under clause
38.
(2) The amount held as the Retention shall not exceed the amount stated in the
Appendix as the Limit of Retention, as may be increased or reduced in accordance with
the Contract. Once the Limit of Retention has been reached no further amounts shall
be retained.
(3) The retention on t.he payment for the Nominated Sub-Contractor's work in progress
and the Nominated Supplier's supply of materials or goods shall be calculated in
accordance with the sub-contract or the supply contract, as the case may be and
added to the Retention held on the payment for the Contractor's work.
Retention Rules
32.5 (1) The Retention shall be held upon trust by the Employer for the Contractor and for
any Nominated Sub-Contractor or Nominated Supplier (without obligation to invest)
subject to the rights of the Employer to have recourse to it for payment of any amount
which he is entitled to under the Contract or at law or to deduct from it any sum owed
to him by the Contractor, provided that the Employer gives notice to the Contractor in
accordance with clause 32.1 (6).
(2) The Architect shall issue an Interim Certificate for the payment of one-half of the
Retention held in respect of the whole of the Works, a Section or a Relevant Part, as the
case may be, 14 days after Substantial Completion of the whole of the Works, that
Section or Relevant Part.
67
32 Certificates and payments (cont'd)
(3) The amount of the Retention held in respect of a Section or Relevant Part shall be
deemed to bear the same relationship to the Retention held for the whole of the Works
as the estimated amount contained in the Contract Sum for that Section or Relevant
Part bears to the Contract Sum.
(4) The Architect shall issue an Interim Certificate for payment of all remaining Retention
within 14 days after the issue of the Defects Rectification Certificate for the whole of the
Works under clause 17.4 or 17.5.
(2) The Quantity Surveyor shall send draft copies of the final account to the Contractor
and the relevant extracts to each Nominated Sub-Contractor or Nominated Supplier
from time to time as the preparation of the final account progresses.
(3) The Contractor shall submit to the Quantity Surveyor all the documents that are, in
the opinion of the Quantity Surveyor, reasonably necessary for the adjustment of the
Contract Sum, including those relating to the accounts of Nominated Sub-Contractors
and Nominated Suppliers, not later than 6 months after Substantial Completion of the
whole of the Works or 3 months before the end of the period for the completion of the
final account, whichever is earlier.
(4) The submission of the documents referred to in clause 32.6(3) shall not be a
condition precedent to the Quantity Surveyor preparing the final account, and, if the
Contractor fails to comply with that clause, the Quantity Surveyor shall prepare the final
account based on the information that is available to him.
(5) The Architect shall issue a copy of the final account signed by the Quantity Surveyor
and the Contractor to each of the parties by special delivery.
(2) The following amounts shall be deducted from the Contract Sum:
(a) all Prime Cost Sums for work to be carried out by Nominated Sub-Contractors and
any Contractor's profit and attendance priced in the Schedule of Quantities and
Rates as separate items on these sums included in the Schedule of Quantities and
Rates;
(b) all Prime Cost Sums for materials or goods to be supplied by Nominated Suppliers
and any Contractor's profit priced in the Schedule of Quantities and Rates as
separate items on these sums included in the Schedule of Quantities and Rates;
68
Certificates and payments (cont'd)
(c) all Provisional Sums and the value of all work for which Provisional Quantities and
Provisional Items are included in the Schedule of Quantities and Rates;
(d) the total of all Valuations under clause 13.4 which result in a reduction in the Contract
Sum;
(i) correction of errors in setting out the Works under clause 7(2);
(f) the amount allowable to the Employer for decreases in the cost of labour and/or
materials under clause 38 if applicable; and
(g) any other amount which is required by the Contract to be deducted from the Contract
Sum.
(b) the Contractor's tender sum accepted under clause 29.4 for work provided for by
a Prime Cost Sum as adjusted in accordance with the terms of the tender;
(c) the supply contract sums for materials or goods supplied by each Nominated
Supplier as adjusted in accordance with the supply contract;
(d) the Contractor's profit upon the Nominated Sub-Contract sums and on the sums
payable to Nominated Suppliers under clauses 32.7(3)(a) and 32.7(3)(c) at the rates
included in the Schedule of Quantities and Rates or in the case where the nomination
arises from either:
at appropriate rates in the Schedule of Quantities and Rates or, if none, at fair
rates;
(e) the sums payable to the Contractor for attendance upon each Nominated Sub-
Contractor, provided that the Nominated Sub-Contract sum has been added to
the Contract Sum under clause 32.7(3)(a), calculated as follows:
69
32 Certificates and payments (cont'd)
(i) if the Prime Cost Sum is included in the Schedule of Quantities and Rates, the
sum payable for attendance shall be the price entered in the Schedule of
Quantities and Rates as a separate item whether or not the Nominated Sub-
Contract sum is greater or less than the Prime Cost Sum; or
(ii) if the Prime Cost Sum arose either from an instruction for the expenditure of a
Provisional Sum, an instruction requiring a Variation or by agreement between
the Architect and Contractor, the sum payable shall be based upon appropriate
rates in the Schedule of Quantities and Rates, or shall be a reasonable sum;
(f) the total of all Valuations under clause 13.4 which results in an increase in the
Contract Sum;
(g) the total of the Valuation of work carried out by and any amount paid by the
Contractor in accordance with the instructions of the Architect as to the expenditure
of a Provisional Sum and of all work for which Provisional Quantities and Provisional
Items are included in the Schedule of Quantities and Rates;
(ii) opening up and testing materials, goods or work under clause 8.2; and
(iii) effecting and maintaining insurances resulting from the Employer's failure to
insure under clauses 228.2(2) or 22C.3(2);
(i) the amount ascertained as additional payment for direct loss and/or expense under
clause 27.2;
G) the amount payable for reimbursement for increases in the costs of labour and/or
materials under clause 38, if applicable; and
(k) any other amount which is required by the Contract to be added to the Contract
Sum.
(2) At the same time as the Architect issues the Final Certificate, he shall notify each
Nominated Sub-Contractor and Nominated Supplier of the date it was issued and the
amount included for the work carried out or the materials or goods supplied by them.
70
Certificates and payments (cont'd)
(b) the sum of the amounts already stated as due in each Interim Certificate; and
(c) the difference between the two sums expressed as a balance due to the Contractor
from the Employer or to the Employer from the Contractor, as the case may be.
(4) The balance referred to in clause 32.8(3) shall be a debt payable, either by the
Employer to the Contractor or by the Contractor to the Employer, as the case may
be, 28 days after the issue of the Final Certificate, subject to:
(a) the materials, goods, workmanship and work were provided or.carried out in
accordance with the requirements of clause 8 to the Architect's satisfaction;
(b) the necessary effect has been given in the final account to all the terms of the
Contract requiring an adjustment to be made to the Contract Sum;
(c) all and only such extensions of time, if any, as are due under clause 25 have been
given; and
(d) any additional payment for direct loss and/or expense under clause 27 arising out
of the occurrence of any of the qualifying events referred to in that clause is in full
and final settlement of all claims for breach of contract, duty of care, statutory duty
or otherwise,
except and insofar as the Final Certificate shall have been rendered erroneous by reason
of fraud, dishonesty or fraudulent concealment.
(2) The issue of the Final Certificate shall not otherwise prejudice any common law
rights and remedies regarding defective work.
(a) the proceedings have been concluded whereupon the Final Certificate shall be
subject to the terms of any award or judgment in or settlement of the proceedings;
or
71
32 Certificates and payments (cont'd)
(b) 12 months have passed without either party taking a further step in the proceedings,
unless there is reasonable cause for not taking this step, whereupon the Final
Certificate shall be subject to any terms agreed in partial settlement,
whichever is earlier.
Late payment
32.13 If the Employer does not pay an amount certified within the stipulated period of time,
the Contractor, without prejudice to his other rights and remedies, shall be entitled to
payment together with the certified amount by the Employer of interest at 1 % below
the judgment debt rate prescribed from time to time by the Rules of the High Court
(Chapter 4A, Laws of Hong Kong) on the amount outstanding 7 days after the latest
date on which the certified amount should have been paid.
33 Surety bond
(2) The Contractor shall deliver the bond duly executed by the insurance company or
bank within 28 days of the acceptance of the Contractor's tender.
(3) The surety bond shall be in the form set out in the Specification or, if not set out in
the Specification, in the form set out in Schedule 1 of the Conditions, and the cost of
obtaining the bond shall be borne by the Contractor.
33.2B The insurance company or bank shall be released from the surety bond upon the issue
of the Defects Rectification Certificate.
72
----------------------------
Antiquities
(a) use his best endeavours not to disturb tile fossil, antiquity or object and shall
cease work if and insofar as the continuance of work would endanger it or prevent
or impede its excavation or removal;
(b) take all measures which may be necessary to preserve the fossil, antiquity or object
in the exact position and condition in which it was found; and
(c) immediately inform the Architect of the discovery and precise location of the fossil,
antiquity or object.
Determination by Employer
Default by Contractor
(1) The Architect may give a notice of default to the Contractor before Substantial
Completion of the whole of the Works if the Contractor defaults by:
(a) completely or substantially suspending the carrying out of the Works without good
cause;
(c) not complying with an instruction from the Architect under clause 8.3 for the
replacement, repair or reconstruction of materials, goods or work not in accordance
with the Contract resulting in the Works being materially affected;
(e) not complying with clause 19.2 by sub-letting the whole or substantially the whole
of the Works to the same person.
73
35 Determination by Employer (cont'd)
(2) The notice of default shall specify the default and state that a notice of determination
may be served if the default continues for a further 14 days after receipt of the notice of
default.
(3) The Employer may give a notice of determination of the employment of the
Contractor if:
(a) the Contractor continues the default for 14 days after receipt of the notice given
under clause 35.1 (1);
(b) the Architect certifies this during the continuation of the default; and
(c) the notice of determination is given to the Contractor within 14 days of the issue of
the Architect's certificate under clause 35.1 (3)(b).
(4) The determination of the employment of the Contractor under clause 35.1 (3) shall
take effect on the date of receipt of the notice of determination.
(5) Where the Contractor ends the default, or the Employer does not give a notice of
determination, the Employer may still determine the employment of the Contractor if:
(b) the Architect certifies this during the continuation or resumption of the default; and
(c) the notice of determination is given to the Contractor within a reasonable time
after the issue of the Architect's certificate under clause 35.1 (5)(b).
(6) The determination of the employment of the Contractor under clause 35.1 (5) shall
take effect on the date of receipt of the notice of determination.
Insolvency of Contractor
35.2 (1) The Employer may give a notice of determination of the employment of the
Contractor if the Contractor:
(c). has a petition for compulsory winding-up presented or made against him;
(d) enters into compulsory or voluntary liquidation except for the purpose of
reconstruction; or
(2) The determination shall take effect on the date of receipt of the notice unless the
Employer, the Contractor and his trustee in bankruptcy, liquidator or receiver, as the
case may be, agree in writing to the continuation of the Contractor's employment.
74
Determination by Employer (cont'd)
(a) the Contractor shall not remove any materials, goods, temporary buildings, plant
or equipment from the Site until instructed to do so by the Architect under clause
35.4;
(b) the Employer shall be given a lien upon all materials, goods, temporary buildings,
. plant and equipment belonging to the Contractor; and
(c) the Employer may provide site security if the Architect is not satisfied that adequate
site security is being provided in which case:
(i) the Contractor shall allow access to the Site for this purpose; and
(ii) the Employer may recover the reasonable cost of providing site security in
accordance with clause 40 or as a debt.
Consequences of determination
(1) In addition to their other obligations under the Contract, the parties shall act in
accordance with clause 35.4 upon determination by the Employer under clause 35.
(2) The provisions of clauses 20 and 21 shall remain in effect until the Contractor has
left the Site notwithstanding determination of the employment of the Contractor.
(3) The Contractor shall return possession of the Site to the Employer immediately
upon determination, notwithstanding that he may dispute the validity of the determination.
In the event of a breach of contract by the Employer in determining the employment of
the Contractor, the only redress the Contractor shall have against the Employer is a
claim in damages.
(4) If the Architect so instructs, the Contractor shall immediately remove his materials,
goods, temporary buildings, plant and equipment with care so as to prevent injury,
death or damage to persons or property and ensure that other owners remove theirs
with similar care except to the extent that:
(b) the Architect instructs that some or all of them shall be left on the Site for use in
completing the Works.
(5) If the Contractor does not comply with clause 35.4(4) within a reasonable time, the
Employer may, without being responsible for any loss or damage, remove and sell the
Contractors' property and hold the proceeds, less all expenses incurred, to the credit
of the Contractor.
75
0-,"-- ,-' -----,. --
(6) The Employer may employ and pay other persons to complete the Works and to Ii~
rectify defects of the kind referred to in clause 17.3 and they shall be permitted by the
Contractor to enter the Site and use the materials, goods, temporary buildings, plant
and equipment left on the Site under clause 35.4(4).
(7) If instructed to do so by the Architect, the Contractor shall assign to the Employer,
so far as he is legally able to do so, without payment:
(b) the remaining assignable benefit of any agreements for the supply of materials or
goods, carrying out of work and the hiring of plant and equipment within 14 days
of the date of determination.
(8) The Employer shall pay for materials, goods, work, plant and equipment, supplied,
carried out or hired after determination at the rates stated in the relevant agreements
between the Contractor and his sub-contractors or suppliers.
(9) The Employer may pay a sub-contractor or supplier for materials or goods delivered
to the Site and work carried out if the materials, goods or work have not already been
paid for by the Contractor. If th.e Contractor has been paid for the materials, goods or
work but has not paid the sub-contractor or supplier, the Employer may recover the
sum paid to the Contractor under clause 40 or as a debt.
(10) The Employer shall not be required to make any further payment to the Contractor
until the final settlement is made under clause 35.6, unless the provisions of clause
35.7 apply.
(a) the expenses incurred by the Employer in completing the Works excluding the
cost of Variations instructed after determination;
(b) the amount of any damage including any liquidated and ascertained damages
under clause 24 due up to the date of determination and direct loss and/or expense
caused to the Employer by the determination;
(c) the payment made or otherwise discharged in favour of the Contractor; and
(d) the total amount that would have been payable for completing the Works calculated
in accordance with the Contract if the determination had not occurred.
76
Determination by Employer (cont'd)
(a) the cost incurred by the Employer in completing the Works represented by the
total of the items in paragraphs (a), (b) and (c) in clause 35.5; and
(b) the amount that it would have cost the Employer to have carried out and completed
the Works but for the determination, represented by the amount in paragraph (d) in
clause 35.5.
(2) The difference between the two amounts in clause 35.6(1)(a) and (b) shall be
expressed in the certificate as a debt due to the Contractor from the Employer, or to the
Employer from the Contractor, as the case may be, and shall be payable within 28 days
after the issue of the Architect's certificate.
(2) If instructed to do so by the Architect, the Contractor shall submit all the documents
including those relating to the accounts of Nominated Sub-Contractors and Nominated
Suppliers which are, in the Quantity Surveyor's opinion, necessary to calculate and
prepare the final account.
(3) The Quantity Surveyor shall prepare the final account as soon as practicable after
receiving sufficient supporting documentation.
(4) If the Contractor fails to comply with clause 35.7(2) within 60 days of being instructed
by the Architect to do so, the Quantity Surveyor shall prepare the final account based
on the information that is available to him.
(a) the estimated value of the work in progress properly carried out up to the date of
determination calculated in accordance with clause 32.2(2);
(b) the amount of any deduction authorised by the Contract, the amount of any damage
including any liquidated and ascertained damages under clause 24 that would
have been due up to the date of determination and direct loss and/or expense
caused to the Employer by the determination; and
77
35 Determination by Employer (cont'd)
(6) The Architect shall certify for the purpose of the final settlement, the amounts set
out in the final account and the difference between the value of the work in progress
represented by clause 35.7(5)(a) and the costs incurred by the Employer represented
by clause 35.7(5)(b) and (c) shall be expressed as a debt due to the Contractor from the
Employer or to the Employer from the Contractor, as the case may be.
36 Determination by Contractor
Default by Employer
36.1 (1) The Contractor may give a notice of default to the Employer if the Employer defaults
. by:
(a) not paying an amount certified due to the Contractor less any deductions authorised
by the Contract within the period for payment of certificates stated in the Appendix;
(b) interfering with or obstructing the issue of a certificate to the detriment of the
Contractor;
(d) postponing the date for commencement of the whole of the Works or substantially
the whole of the Works for a period of 120 days or more due to an Architect's
Instruction under clause 23.3; or
(e) causing the carrying out of the whole of the Works or substantially the whole of the
Works to be suspended for a continuous period of 120 days or more due to an
Architect's instruction under clause 23.3 unless notice of the suspension is given
in the Contract or the suspension was caused by a breach of contract or other
default of the Contractor or any person for whom the Contractor is responsible.
(2) The notice of default shall specify the default and state that notice of determination
may be served if the default continues for a further 14 days after receipt of the notice of
default.
(3) The Contractor may give a notice of determination of his own employment to the
Employer if:
(a) the Employer continues the default for 14 days after receipt of the notice given
under clause 36.1 (1); and
(b) the notice of determination is given to the Employer within a further 14 days.
(4) The determination shall take effect on the date of receipt of the notice of
determination.
78
Determination by Contractor (cont'd)
(5) Where the Employer ends the default, or the Contractor does not give a notice of
determination, the Contractor may still determine his own employment if:
(a) the Employer continues the default or resumes it at any time; and
(b) the notice of determination is given to the Employer upon or within a reasonable
time after the continuation or resumption of the default except that in the case of
clause 36.1 (1 )(d) the resumption of the default shall have lasted for a continuous
period of at least 30 days.
Insolvency of Employer
(1) The Contractor may give a notice of determination of his own employment if the
Employer:
(c) has a petition for compulsory winding-up presented or made against him;
(d) enters into compulsory or voluntary liquidation except for the purpose of
reconstruction; or
(2) The determination shall take effect on the date of receipt of the notice of
determination.
(3) The obligation of the Contractor to carry out and to complete the Works shall be
suspended immediately after the occurrence of any of the events set out in clause
36.2 and before any notice of determination of his own employment takes effect.
Consequences of determination
(1) In addition to their other obligations under the Contract, the parties shall act in
accordance with clause 36.3 upon determination by the Contractor of his own
employment under clause 36 unless the employment has been reinstated.
(2) The provisions of clauses 20 and 21 shall remain in effect until the Contractor has
left the Site notWithstanding determination of the employment of the Contractor.
(3) The Contractor shall immediately remove his materials, goods, temporary buildings,
plant and equipment with care so as to prevent injury, death or damage to persons or
property and ensure that other owners remove theirs with similar care except to the
extent that:
79
36 Determination by Contractor (cont'd)
(b) the Architect instructs that some or all of them are to be left on the Site for use in
completing the Works and the Contractor agrees to leave them on the Site subject
to payment under clause 36.4(1)(c) for materials and goods and a reasonable
payment for the other items.
(4) . The Contractor shall return the possession of the Site to the Employer immediately
upon completing the removal of all items referred to in clause 36.3(3) and in any case
not later than 28 days after determination but shall be allowed access to the Site to take
all measurements required for the preparation of the final account.
(5) If instructed to do so by the Architect, the Contractor shall assign to the Employer,
so far as he is legally able to do so, without payment:
(b) the remaining aSSignable benefit of any agreements for the supply of materials or
goods, carrying out of work and the hiring of plant and equipment within 14 days
of the date of determination.
(6) The Employer shall pay for materials, goods, work, plant and equipment supplied,
carried out or hired after determination at the rates stated in any relevant agreement
between the Contractor and his sub-contractors or suppliers.
(7) The Employer may employ and pay other persons to complete the Works and to
rectify defects of the kind referred to in clause 17.3 and they shall be permitted to enter
the Site and use the materials, goods, temporary buildings, plant and equipment left on
the Site by the Contractor under clause 36.3(3).
(8) The Employer shall pay the Contractor the Retention within 28 days of the date of
the determination, subject to any right of the Employer of deduction which had accrued
before determination.
(a) the estimated value of the work in progress properly carried out up to the date of
determination calculated in accordance with clause 32.2(2);
(b) the estimated value of any work carried out for the protection of the Site and the
Works after determination;
(c) any amount not included in clause 36.4(1 )(a) for the cost of materials and goods
that were properly ordered for the Works and delivered to or adjacent to the Site
which the Contractor has paid for, or is legally bound to pay for, and has or will
transfer the property in these materials and goods to the Employer;
80
36 Determination by Contractor (cont'd)
(d) the reasonable cost of removal of materials and goods not to be sold to the Employer
and temporary buildings, plant and equipment not to be left on the Site; and
(e) the amount of any direct loss and/or expense caused to the Contractor by the
determination.
(2) The estimated value of the work in progress referred to in clause 36.4(1 )(a) shall
be broken down into separate amounts for each of the relevant items listed in clause
32.2(3).
(a) the amount of the final account being the total of the amounts under clause
36.4(1); and
(2) The difference between the two amounts in clause 36.6(1 )(a) and (b) shall be
expressed in the certificate as a debt due to the Contractor from the Employer, or to the
Employer from the Contractor, as the case may be and shall be payable within 28 days
after the issue of the Architect's certificate.
81
37 Determination by Employer or Contractor
(a) loss or damage caused by a peril covered under the Contractors' All Risks Insurance
of the Works or by a Specified Peril covered by the insurance of the existing building;
or
(2) The Contractor shall not be entitled to give notice of determination under clause
37.1 (1)(a) in respect of loss or damage if:
(a) the loss or damage was caused or significantly contributed to by a breach of contract
or other default of the Contractor or any person for whom the Contractor is
responsible; or
Site security
37.2 (1) The Employer may provide site security if:
(a) either the Employer or the Contractor has served a notice of determination under
clause 37.1 (1); and
(b) the Architect is not satisfied that adequate site security is being provided.
(2) The Contractor shall allow access to the Site for the purpose of this clause.
Consequences of determination
37.3 (1) In addition to their other obligations under the Contract the parties shall act in
accordance with clause 37.3 upon determination of the employment of the Contractor
by either the Employer or the Contractor under ciause 37.1 if the employment has not
been reinstated.
(2) The provisions of clauses 20 and 21 shall remain in effect until the Contractor has I
(3) The Contractor shall immediately remove his materials, goods, temporary buildings,
plant and equipment with care so as to prevent injury, death or damage to persons or
property and ensure the other owners remove theirs with similar care except to the
extent that
82
Determination by Employer or Contractor (cont'd)
(b) the Architect instructs that some or all of them are to be left on the Site for use in
completing the Works.
(4) The Contractor shall return possession of the Site to the Employer immediately
upon completing the removal of all items referred to in clause 37.3(3) and in any case
not later than 28 days after determination notWithstanding that he may dispute the
validity of the determination. In the event of a breach of contract by the Employer in
determining the employment of the Contract the only redress the Contractor shall have
against the Employer is a claim in damages.
(5) If instructed to do so by the Architect, the Contractor shall assign to the Employer,
so far as he is legally able to do so, without payment:
(b) the remaining assignable benefit of any agreements for the supply of materials or
goods, carrying out of work and the hiring of plant and equipment within 14 days
of the date of determination.
(6) The Employer shall pay for materials, goods, work, plant and equipment supplied,
carried out or hired after determination at the rates stated in any relevant agreement.
(a) one-half of the Retention within 28 days of the date of determination, subject to
any accrued right of deduction which he had before the determination; and
(b) the remainder of the Retention as part of and in accordance with the final settlement
under clause 37.5.
(2) If the Contractor fails to comply with clause 3704(1) the Quantity Surveyor shall
prepare the final account based on the information that is available to him.
(3) The Quantity Surveyor shall prepare the final account as soon as practicable after
receiving sufficient supporting documentation or after the expiry of the 60 days referred
to in clause 37.4(1).
83
37 Determination by Employer or Contractor (cont'd)
(a) the estimated value of work in progress properly carried out up to the date of
determination calculated in accordance with clause 32.2(2);
(b) the estimated value of any work carried out for the protection of the Site and the
Works after determination;
(c) any amount, not included in the amount calculated under clause 37.4(4){a), for the
cost of materials and goods delivered to or adjacent to the Site properly ordered
for the Works which the Contractor has paid for, or is legally bound to pay for, and
has or will transfer the property in to the Employer; and
(d) the reasonable cost of removal of materials and goods not to be sold to the Employer
and temporary buildings, plant and equipment not to be left on the Site.
(a) the amount of the final account being the total of the amounts under clause
37.4(4); and
(2) The difference between the two amounts in clause 37.5(1) shall be expressed in
the certificate as a debt due to the Contractor from the Employer, or to the Employer
from the Contractor, as the case may be, and shall be payable within 28 days after the
Architect's certificate.
38 Fluctuations
84
39 Notices, certificates and other communications
(3) Any notice, certificate or other communication sent by prepaid post shall be deemed
to be received two clear days, excluding general holidays, after posting.
41 Settlement of disputes
(2) Each party shall designate one of its own senior executives as its representative
(referred to in clause 41 as the "DeSignated Representatives") within 14 days of
acceptance of the Contractor's tender, and the Designated Representatives shall
endeavour to settle disputes tilat arise during the carrying out of the Works.
(3) The Designated Representatives shall have the authority to settle disputes and
shall not be involved in the day to day administration of the Contract.
(2) The Designated Representatives shall meet within 7 days of receipt of a notice
from the Architect requesting them to resolve the dispute.
85
~~~~~~-~-- ---
Reference to mediation
41.3 (1) If the dispute is not resolved by the Designated Representatives within 28 days of
the dispute being referred to them by the Architect under clause 41.2, either party may
give a notice to the other party, by special delivery, to refer the dispute to mediation
and the person to act as the mediator shall be agreed between the parties.
(2) If the parties fail to agree on the person to act as the mediator within 21 days after
either party has given to the other a written request to do so, the mediator shall, on the
written request of either party, be appointed by the President or Vice-President for the
time being of The Hong Kong Institute of Architects co-jointly with the President or
Vice-President for the time being of the Hong Kong Institute of Surveyors.
(3) The mediation shall, unless otherwise agreed by the parties, be conducted in
accordance with and subject to the Hong Kong International Arbitration Centre Mediation
Rules except those provisions in the Rules relating to the appointment of the mediator.
(4) A dispute under Article 5 shall be immediately referred to arbitration without first
being referred to mediation.
Reference to arbitration
41.4 (1) If the dispute is not settled by mediation within 28 days of the commencement of
the mediation, either party may give a notice to the other party, by special delivery, to
refer the dispute to arbitration and the person to act as the arbitrator shall be agreed
between the parties.
(2) If the parties fail to agree'on the person to act as the arbitrator within 21 days after
either party has given to the other a written request to do so, the arbitrator shall, on the
written request of either party, be appointed by the President or Vice-President for the
time being of The Hong Kong Institute of Architects co-jointly with the President or
Vice-President for the time being of the Hong Kong Institute of Surveyors.
(5) The arbitration shall be a domestic arbitration conducted in accordance with the
Arbitration Ordinance (Chapter 341, Laws of Hong Kong) and, unless otherwise agreed
by the parties, with the Domestic Arbitration Rules of the Hong Kong International
Arbitration Centre except those provisions in the Rules relating to the appointment of
the arbitrator.
86
41 Settlement of disputes (cont'd)
Timing of arbitration
41.5 (1) The arbitrator shall have jurisdiction to hear the parties and commence the arbitration
of a dispute arising out of, under or in connection with the Contract at any time on a
question of whether:
(c) a certificate has been improperly withheld or was not issued in accordance with
the Conditions;
(d) the assessment of the Employer's loss of value under clause 7.2 is reasonable;
(e) the Contractor's objection to a Variation referred to in clause 13.1 (1)(a) is reasonable;
and
(f) the Contractor's consent to the Employer taking possession of a Relevant Part
under clause 18.1 is unreasonably withheld,
(2) The hearing of disputes other than those listed in clause 41.5(1) shall not commence
until after Substantial Completion or alleged Substantial Completion of the whole of the
Works or determination or alleged determination of the Contractor's employment or
abandonment of the Works unless the written consent of the parties to the hearing is
given after the dispute has arisen.
Arbitrator's powers
41.6 The arbitrator's powers include:
(a) rectifying the Contract to accurately reflect the true agreement made by the parties;
(c) assessing and awarding any sum which ought to have been the subject of or
included in a certificate; and
(d) opening up, reviewing and revising, without limitation, the giving, submitting or
issuing of any agreement, approval, assessment, authorisation, certificate,
confirmation, consent, decision, delegation, direction, dissent, determination,
endorsement, instruction, notice, notification, opinion, request, requirement,
statement, termination or Valuation.
87
41 Settlement of disputes (cont'd)
(2) The Contractor's compliance with clause 41.8(1) is without prejudice to any other
rights and remedies that he may possess.
88
Appendix
Clause Clause
Limit of indemnity to third party liability 21.2 Period for payment of certificates 32.1
insurance against injury or death to any (if not stated, within 14 days
person from the date of the certificate)
HK$
HK$ __________________
Fluctuations 38
(The Contract Sum will be
adjusted for flUctuations only if
it is expressly stated to be so
adjusted in the space below)
* Delete as applicable
89
SCHEDULE 1
FORM OF SURETY BOND
TO BE GIVEN BY THE CONTRACTOR TO THE EMPLOYER
for the payment of which sum the Contractor and the Surety bind themselves, their successors
and assigns, jointly and severally by these presents.
Sealed with our respective seals/Signed and sealed respectively' (Note 3) and dated this
made between the Employer of the one part and the Contractor of the other part] or
[By the letter of acceptance sent by the Architect on behalf of the Employer to the Contractor
dated the .............................. day of .............................. 20 .............. the Employer accepted the
tender submitted by the Contractor dated the ............................ day of ....................... 20 ...........]
90
('the Contract') the Contractor has agreed to develop the Architect's design to the extent
specified in the Contract, construct, complete and maintain the Works (as therein defined)
until the issue of the Defects Rectification Certificate and to perform the Contract in conformance
with the provisions thereof.
and whereas pursuant to the terms of the Contract, the Contractor has agreed to obtain
the guarantee of a surety to be bound unto the Employer in the sum of Hong Kong Dollars
and whereas at the request of and for the account of the Contractor, the Surety has agreed to
guarantee the Employer the due performance by the Contractor of its obligations under the
Contract.
1. The words and expressions in this Bond shall have the same meaning as in the Contract.
2. The Contractor shall duly perform and observe all the terms, provisions, conditions,
obligations, stipulations and specification of the Contract according to the true purport intent
and meaning thereof and to the reasonable satisfaction of the Architect appointed by the
Employer in respect of the Works or if on default by the Contractor the Surety shall satisfy and
discharge the damages sustained by the Employer thereby as certified by the said Architect,
up to the amount of the above written Bond then his obligation shall be null and void but
otherwise his obligation shall be and remain in full force and effect.
3. No alterations in terms of the Contract made by agreement between the Employer and
the Contractor or in the extent or nature of the development of the Architect's design to the
extent specified in the Contract, construction, completion and maintenance of the Works and
no allowance or extension of time given or to be given by the Employer under the Contract nor
any indulgence, forbearance, forgiveness, payment or concession to the Contractor in or in
respect of any matter or thing concerning the Contract on the part of the Employer or any
failure of supervision to prevent any fault by the Contractor shall in any way release the Surety
from any liability under the above written Bond.
4. This Bond shall be binding upon the Contractor and the Surety and their respective
successors and assigns jointly and severally (provided that the Contractor and Surety may not
assign their respective rights and liabilities hereunder without the prior written consent of the
Employer) and shall inure to the benefits of the Employer and its successors and assigns.
5. This Bond shall remain valid for receipt of claims as aforesaid until the date of issue of
the Substantial Completion Certificate/Defects Rectification Certificate* for the whole of the
Works pursuant to the Conditions of the Contract and any release of the Surety from the Bond
shall be expressly subject to any claims made before this date.
6. This Bond shall be governed and construed in accordance with the laws of the Hong
Kong Special Administrative Region and the Surety hereby agrees to the non-exclusive
jurisdiction of the Courts of the Hong Kong Special Administrative Region.
* Delete as appropriate.
91
SIGNED, SEALED AND DELIVERED by the ) (Note 5)
)
Contractor in the presence of :- )
)
)
(Signature of witness) )
)
)
)
)
(Name and occupation of witness) )
OR
OR
92
THE COMMON SEAL of the Surety was here- (Note 6)
(Signature of witness)
OR
by .............................................................. .
in the presence of :-
(Signature of witness)
(1) Delete content in < > where the Contractor is a limited company.
(2) Delete content in [ 1where the Contractor is a firm.
(3) * Delete as appropriate.
Delete 'Sealed with our respective seals' in the case of a firm.
Delete 'Signed and sealed respectively' in the case of a limited company.
(4) ** Delete as appropriate, select according to whether the Contract is signed or not.
(5) For use in the case of a sole proprietor or where all partners of a firm execute.
(6) For use in the case of a limited company executing under its common seal.
(7) For use in the case of a firm or a limited company executing through an attorney.
93
SCHEDULE 2
FORM OF WARRANTY TO BE GIVEN BY
THE NOMINATED SUB-CONTRACTOR TO
THE EMPLOYER IN CONSIDERATION OF NOMINATION
('the Contractor') under the terms of the Contract between the Employer and the Contractor
............................................................................................................................................* and
('the Sub-Contract Works') which are intended to form part of the Main Contract Works under
a Nominated Sub-Contract (,the Sub-Contract').
We ...............................................................................................................................................
('the Nominated SUb-Contractor') warrant that in consideration of your instructing the Architect
to nominate us as the Nominated Sub-Contractor for the Sub-Contract Works:-
(a) We will commence and complete the Sub-Contract Works in accordance with the Sub-
Contract.
* delete as appropriate
94
(b) We will indemnify the Employer against all extra costs that may be incurred by non-
performance of the Sub-Contract Works, by late completion of the Sub-Contract Works
or by any breach of these warranties.
(c) We have exercised and will exercise all reasonable skill and care in :-
(i) the design of the Sub-Contract Works insofar as the Sub-Contract Works have
been or will be designed by us; and
(ii) the selection of materials and goods for the Sub-Contract Works insofar as such
materials and goods have been or will be selected by us.
(d) We will comply with and satisfy any performance specification or requirements insofar
as such performance specification or requirements are included or referred to in the
Tender Documents and/or our Tender as part of the description of the Sub-Contract
Works.
(e) We will supply the Architect and or Contractor with such information as .either may
reasonably require and at such times that the Contractor shall not be delayed in completing
the Main Contract Works by the Completion Date by our failure to supply such information
or by delay on our part, provided always that no liability shall arise in respect of such
delay on our part until we have accepted the Contractor's order in respect of the Sub-
Contract Works.
(f) Nothing in our Tender shall operate to exclude or limit our liability for breach of the
warranties set out herein.
(g) We will obtain a surety bond in the form set out in Schedule 1 of the Sub-Contract with
the requisite changes in wording to reflect that the bond is to be given by the Nominated
Sub-Contractor to the Employer instead of to the Contractor. This bond will be duly
executed under seal by an approved insurance company or bank, acknowledging that
the insurance company or the bank is jointly and severally bound with us to the Employer
in the sum of 10% of the Sub-Contract Sum (rounded up the nearest thousand dollars)
against breach of the warranties hereof.
The words and expressions used in this Deed of Warranty shall have the same meaning as in
the Contract and the SUb-Contract.
95
SIGNED, SEALED AND DELIVERED by the ) (Note 1)
)
Sub-Contractor in the presence of.:- )
)
)
(Signature of witness) )
)
)
)
)
(Name and occupation of witness) )
OR
OR
Notes (1) For use in the case of a sole proprietor or where all partners of a firm execute.
(2) For use in the case of a limited company executing under its common seal.
(3) For use in the case of a firm or a limited company executing through an attorney.
96
SCHEDULE 3
FORM OF WARRANTY TO BE GIVEN BY
THE NOMINATED SUPPLIER TO
THE EMPLOYER IN CONSIDERATION OF NOMINATION
('the Contractor') under the terms of the Contract between the Employer and the Contractor
............................................................................................................................................* and
the Supply Contract materials, goods, equipment and other things ('the Goods') which are
intended to be incorporated in the Main Contract Works under a Nominated Supply Contract
('the Supply Contract').
We ...............................................................................................................................................
('the Nominated Supplier') warrant that in consideration of your instructing the Architect to
nominate us as the Nominated Supplier for the Goods:-
(a) We will commence and complete the delivery of the Goods and perform all the services
specified, in accordance with the terms of the Supply Contract.
* delete as appropriate
97
(b) We will indemnify the Employer against all extra costs that may be incurred by non-
performance of the Supply Contract, by late delivery of the Goods or by any breach of
these warranties.
(c) We have exercised and will exercise all reasonable skill and care in :-
(1) the design of the Goods insofar as the Goods have been or will be designed by us;
and
(2) the selection of materials, goods and equipment for the Supply Contract insofar as
such materials, goods and equipment have been or will be selected by us.
(d) We will comply with and satisfy any performance specification or requirements insofar
as such performance specification or requirements are included or referred to in the
Tender Documents and/or our Tender as part of the description of the Supply Contract.
(e) We will supply the Architect and/or Contractor with such information as either may
reasonably require and at such times that the Contractor shall not be delayed in completing
the Main Contract Works by the Completion Date by our failure to supply such information
or by delay on our part, provided always that no liability shall arise in respect of such
delay on our part until we have accepted the Contractor's order in respect of the Supply
Contract.
(f) Nothing in our Tender shall operate to exclude or limit our liability for breach of the
warranties set out herein.
(g) We will obtain a surety bond in the form set out in Schedule 1 of the Supply Contract with
the requisite changes in wording to reflect that the bond is to be given by the Nominated
Supplier to the Employer instead of to the Contractor. This bond will be duly executed
under seal by an approved insurance company or bank, acknowledging that the insurance
company or the bank is jointly and severally bound with us to the Employer in the sum of
10% of the Supply Contract Sum (rounded up the nearest thousand dollars) against
breach of the warranties hereof.
The words and expressions used in this Deed of Warranty shall have the same meaning as in
the Contract and the Supply Contract.
98
SIGNED, SEALED AND DELIVERED by the (Note 1)
(Signature of witness)
OR
(Signature of witness)
OR
Notes (1) For use in the case of a sale proprietor or where all partners of a firm execute.
(2) For use in the case of a limited company executing under its common seal.
(3) For use in the case of a firm or a limited company executing through an attorney.
99
Ii
I
,I
II
',!
!'
Index to the General Conditions
Clause
ii
Completion, Sectional.......................................................................... 1.9,17.2(1),17.5(1),
18.1 (1), 18.4,
22.4(2) & 23.2
Completion, Substantial ....................................................................... 1.6, 2.1 (h), 4.1, 13.4(8),
17, 18, 22.2U), 22.4(2),
25.3(8),29.10, 32.5(2),
32.6, 35.1 (1) & 41.5(2)
Completion, time for ........................................................................... . 23.2
Compliance with Statutory Requirements .......................................... . 6
Consent, Architect's, to determination of Nominated
Sub-Contract or Nominated Supply Contract .................................. . 29.14
Construction manager ........................................................................ . 10.2
Contract Drawings ............................................................................... 1.6,2.4, 5, 25.1 (3),
25.3(5) & 27.1 (2)
Contract governed by Laws of Hong Kong ........................................ . 1.1
Contract Sum ...................................................................................... . 1.6,15&32.7
Contract, documents forming .............................................................. 5.1
Contract, documents not forming ........................................................ 3.3,5.1 (3) & 30.2
Contractor to give notice of injury ....................................................... . 21.1 (3)
Contractor to return possession of Site to Employer
upon determination ........................................................................... . 35.4(3), 36.3(4) &
37.3(4)
Contractor's confirmation of variation ................................................. . 4.2 & 13.1(3)
Contractor's design responsibility ....................................................... . 2.1 & 29.6
Contractor's interim statements ........................................................... 32.1 (4)
Contractor's obligations ....................................................................... 2
Contractor's responsibility ................................................................... 2.2
Contractor's responsibility for Nominated Sub-Contractors
and Nominated Suppliers .................................................................. 29.6
Contractor's right of objection to nomination ...................................... 29.2
Contractor's site management team .................................................... 3.1 (1 )(c) , 10, 19.1 (2)
Contractor's skill and care ................................................................... 2.1 (2) & 2.3
Contractors' All Risks Insurance of the Works .................................... 1.6, 21.2,
22 & 22A-22C, 37.1
Cost of tests............................................... .......................................... 8.2(3),27.1(2)(b),
32.2(3)0) & 32.7(3)(h)
Damage to property ............................................................................ . 20,21 & 22.20)
Damage to the Works ......................................................................... . 2.1,22 & 22A-22C
Damage to the Works, Excepted Risks .............................................. . 1.6 & 2.1 (1)(h)
Damages, liquidated and ascertained ................................................ . 18.4 & 24.2
Date for Possession of the Site ........................................................... . 1.6 & 23.1
iii
Date of Substantial Completion .......................................................... . 24.2 &25.3
Daywork ............................................................................................... 13.4(2)(c) & 13.4(7)
Deductibles, insurance ........................................................................ 21.3 & 22.5
Default or determination, notices sent by special delivery .................. 1.11
Defects Liability Period ........................................................................ 17.1-17.2 & 18.2
Defects Rectification Certificate .......................................................... 4.1,17.4,18.3,21.1(2),
32.5(4) & 32.9(1)
Defects Rectification Certificate, Employer's other rights
and remedies after ............................................................................ . 17.7
Defects, rectification of ....................................................................... . 8.4,17.3 & 18.3
Definitions .......................................................................................... .. 1.6
Definitions and interpretation .............................................................. . 1
Delay and disruption to the progress of the Works ............................ . 13.4(9) & 27
Delay recovery measures .................................................................... . 26
Delay, first and second notices of ...................................................... . 25
Delay, liquidated damages for ............................................................. 18.4 &24
Delay, mitigation by the Contractor ................................................... .. 25.1 (4)(a)
Delay or disruption caused by Nominated Sub-Contractor
or Suppliers ...................................................................................... .. 27.1 (2)(h) & 29.2(7)
Delegation of the Architect's duties and powers ................................ . 1.8 & 12.2
Delivery of notice of default or determination ..................................... . 1.11
Descriptive schedules ......................................................................... . 5.3-5.6 & 5.9-5.10
Design responsibility ............................................................................ 2.1 & 29.6
Designated Representatives .............................................................. .. 41
Determination ..................................................................................... .. 35-37
Determination of Nominated Sub-Contract or
Nominated Supply Contract, Architect's consent to ........................ . 29.14
Determination, notice of ....................................................................... 1.11
Direct loss and/or expense .................................................................. 27
Direct payment to Nominated Sub-Contractors and Suppliers .......... . 29.8
Discrepancies in documents .............................................................. .. 2.4 & 25.1 (3)(f)
Dismissal of Contractor's agents or employees ................................ .. 8.5
Disputes, settlement of ....................................................................... . 41
Divergence in documents ................................................................... . 2.4, 25.1 (3)(f) &
27.1 (2)(a)
Documents forming the Contract ....................................................... . 3.3&5
Documents to be read as a whole ..................................................... .. 1.5
Domestic Arbitration Rules .................................................................. 41.4(4)
Domestic Sub-Contractor .................................................................. .. 1.6, 2.1 & 19.2(f)
Drawings .............................................................................................. 2.1 (1)(f), 5.1, 5.3(b),
5.10 & 7
iv
----- - - - - - - - - - - -
v
~------~------------------------------
vi
Interim particulars of claims ................................................................ . 25.2 & 28.2
Interim payments ................................................................................ . 29.7
Interim statements, Contractor's ....................................................... .. 32.1 (4)
Interpretations, definitions and ........................................................... . 1
Judgment debt rate ............................................................................ . 24.3&32.13
Late payment ...................................................................................... . 32.13
Laws of Hong Kong, Contract governed by ...................................... .. 1.1
Letter of acceptance ........................................................................... . 1.6 & 5.1
Levels and setting out ........................................................................ .. 7
Liability, defects ................................................................................. .. 17
Liability, Employer's, to Nominated Sub-Contractor or
Nominated Supplier .......................................................................... . 29.15
Limit of indemnity ............................................................................... .. 21.2(4)
Limits on issuing Variations ................................................................. . 4.1 & 13.1
Limits to use of documents ................................................................ . 5.13
Liquidated and ascertained damages ................................................ .. 18.4, 24.2, 35.5,
35.7 &40
Listed events ........................................................................................ 25.1-25.3
Loss and/or expense ......................................................................... .. 27
Lump sum adjustment to Schedule of Rates,
allowance to be made in Valuations ................................................ .. 13.4(5)
Maintenance manuals ........................................................................ .. 5.11
Maintenance of equipment ................................................................. . 2.1 (1 )(g)
Making good defects .......................................................................... . 8.4, 17.3 & 18.3
Manager, construction ........................................................................ . 10.2
Master programme ...................................................... ,...................... . 3
. Materials and goods, alternative ......................................................... . 8.1
Materials and goods, intellectual property in ..................................... .. 9.2
Materials and goods, on or off-site ..................................................... . 16
Materials and workmanship, inspection and testing ......................... .. 8.2
Materials, goods, workmanship and work .......................................... . 8
Materials, removal of ........................................................................... . 8.3, 35.4(4), 36.3(3) &
37.3(3)
Measurement on site, Contractor's right to be present ...................... . 13.6
Mediation ........................................................................................... .. 41.3
Method Statement .............................................................................. . 3.1(1) & 3.3
Nominated Sub-Contract or Nominated Supply Contract
- extension of time ....................................................................... . 25.1 (3)(m)-(0),
29.9 & 29.11
- determination or termination only with Architect's consent ...... . 29.14
- retention ................................................................................... .. 32.4 & 32.5
- Contract documents ................................................................... 5.2, 5.4, 5.5, 5.6 & 5.9
vii
Nominated Sub-Contract, substantial completion ............................. . 29.10
Nominated Sub-Contractor or Nominated Supplier
- contractor's responsibility for .................................................... . 29.6
- delay caused by ........................................................................ . 25.1 (3)(m)
- delay caused by re-nomination ................................................ .. 25.1 (3)(0)
- direct payment to ...................................................................... . 29.8
- early final payment to ................................................................. 29.12
- Employer's liability to ......................... ,...................................... .. 29.15
- Generally ................................................................................... . 29
- interim payment to .................................................................... . 29.7(1 )(c)
- to be given copy of any notice of delay and new
Completion Date ..................................................................... . 25.6(1 )
- payment .................................................................................... .. 29.7,29.8 & 29.12
- re-nomination of ....................................................................... .. 29.13
- materials and goods, valuation of ............................................ .. 13.8
- warranty ..................................................................................... . 29.3
Nominated Sub-Contractor's
- claim for additional payment for Direct loss and/or expense .... . 27.4(2)-(4)
- valuation of work ...................................................................... .. 13.8
Nomination, Contractor's right of objection to .................................... . 29.2,29.13(5)
.~
Non-standard conditions of Nominated Sub-Contract and
Nominated Supply Contract, treated as Variation ............................ . 29.5
Notice of accident or injury to workmen ............................................. . 21.1(3)
Notice of claims for additional payment .............................................. 27.1, 27.4 & 28
Notice of default ................................................................................... 35.1 (1), 35.1 (2), 35.3,
36.1(1) & 36.1(2)
Notice of delay .................................................................................... . 25.1 & 25.2
Notices, general .................................................................................. . 1.10 &39
Notices, special delivery of ................................................................ .. 1.11,5.15,32.1(6),
39,40,41.3(1) &
41.4(1)
Objection to enter into sub-contract or supply contract .................... . 29.2 & 29.13(5)
Obligations, Contractor's .................................................................... . 2, 22A.3(1)
Obligations, to person engaged by the Employer .............................. . 30.3
Omissions as variation ....................................................................... .. 1 .6 - variation
Open up for inspection ...................................................................... .. 8.2(2), 25.1 (3)(g) &
27.1 (2)(b)
Oral instruction ................................................................................... .. 4.2 & 13.1(3)
Ordering variations, time limit ............................................................ .. 4.1
Ordering variations, limitations .......................................................... .. 13.1
Other persons to carry out Contractor's work .................................... . 4.3(3), & 17.3(4)
viii
Other persons, facilities for ................................................................. . 6.4(2) & 31
Other rights and remedies retained after the issue of
the Defects Rectification Certificate ................................................ .. 17.7
Partial possession of the Works by Em ployer .................................... . 18
Payment for direct loss and expense ................................................ .. 32.2(3)(k), 32.4(1),
32.7(3)(i) & 32.9(1 )(d)
Payment for direct loss and expense caused by
Nominated Sub-Contractor or Nominated Supplier ........................ .. 29.2(7)
Payment of interest to the Contractor ................................................ . 24.3 & 32.13
Payment of Retention Money ............................................................ .. 18.2(c), 29.12(3)(a),
32.4(1), 32.5,
36.3(8) & 37.3(7)
Payment amount due on certificate .................................................... . 32.1 (2)
Payment, certificates and .................................................................. .. 32
Payments to Nominated Sub-contractors and
Nominated Suppliers ........................................................................ . 29.7,29.8 & 29.12
Payments, interim ............................................................................... . 32
Performance specification ................................................................. .. 8.1(2) & 9.2
Peril, Specified ................................................................................... .. 1.6,17.3,17.6,
18.2(b), 18.5, 22C.1,
25.1 (3)(e) &
37.1 (1)(a)
Period for completion of final account ................................................ . 32.6(1 )
Person engaged by Employer ............................................................... 30
Person for whom the Contractor is responsible ................................ .. 1.6
Persons and property, injury or damage to ....................................... .. 20 &21
Plant, liability for loss or damage ........................................................ . 22.2(k)
Plant, removal of .................................................................................. 35.3, 35.4(4), 36.3(3),
36.4(1)(d), 37.3(3) &
37.4(4)(d)
Possession of the Site ........................................................................ . 23.1 & 23.3
Possession of the Site upon determination ........................................ . 35.4(3), 36.3(4) &
37.3(4)
Postponement or suspension ............................................................. . 23.3, 25.1 (3)0) &
27.1(2)
Power, arbitrator's ............................................................................... . 41.6
Power, to recover damages by the Employer .................................... .. 40
Precedence of Contract Documents .................................................. . 5.1 (1) and (2)
Preventative work .............................................................................. .. 4.4
Prime Cost Sums ................................................................................ . 1.6, 25.1 (3)(1),
27.1 (2)(g), 29.1, 29.4,
32.2(3)(g) & 32.7
ix
Production of vouchers and the like ................................................... . 13.4(2)(b)
Programme to be submitted .............................................................. .. 3
Progress, delay or disruption to ........................................................... 27
Progress, rate of .................................................................................. . 25.5
Provision of Drawings ........................................................................ .. 5.3. - 5.9
Provisional Items ................................................................................. . 1.6, 13 & 32.7(2)(c)
Provisional Sums ................................................................................. 6.3(2), 13 & 29.1 (b)
Provisional Sums and Prime Cost Sums, use of ................................. 29.1 (1)(d)
Qualifying event ................................................................................... 27.1,27.3 & 32.9(1)(d)
Quality of materials, goods and workmanship .................................. .. 8
Quality, standards and types .............................................................. . 8.1
Quantities, under or over estimation .................................................. .. 1.7
Quantity Surveyor ............................................................................... . 5,13-14,26-27,
29-30, 32 & 35-37
Rainfall, inclement weather conditions .............................................. .. 25.1 (3)(b)
Rate of progress ................................................................................. .. 25.5
Record of labour, plant and materials ................................................ .. 13.4(2)
Recovery of money due to the Employer ............................................ . 40
Rectifying defects .............................................................................. .. 8.4,17.3-17.6,18.3,
18.5, 29.12(3),
32.2(4)(a)(iii) &
32.7(2)(e)(iii)
Reduction of liquidated damages ...................................................... .. 24.3
Remedy on Contractor's failure to carry out work
required by the Architect ................................................................... . 4.3(3), 17.3(4),
35.1 (1 )(c) & 35.4(5)
Remedy on failure to insure ................................................................ . 21.5, 22A.2(2),
22B.2(2) & 22C.3(2)
Removal and replacement of unsatisfactory material and work ........ .. 8.3
Removal of contractor's employees .................................................. .. 8.5
Removal of plant on termination ........................................................ .. 35.3, 35.4(4),
36.3(3) & 37.3(3)
Re-nomination .................................................................................... .. 29.13
Requirements to be reasonable .......................................................... . 1.12(2)
Responsibility of the Contractor for acts and defaults
of Nominated Sub-Contractors and Suppliers ................................. . 29.6
Responsibility, Contractor's ............................................................... .. 2.2
Retention, Calculation of .................................................................... .. 32.4
Retention, Limit of .............................................................................. .. 1.6, 29.4,
29.12(3)(a) & 32.4(2)
Retention Money, payment ................................................................ .. 18.2(c), 32.5,
36.3(8) & 37.3(7)
x
,ii'
I
I
,I
,.'i
" Retention Money, release of ................................................................ 18.2, 32.5(2),
36.3(8) & 37.3(7)
Retention, percentage ......................................................................... . 1.6 &32.4
Retention, rules .................................................................................... 32.5
Return of liquidation damages ............................................................ . 24.3
Review of extension of time granted .................................................. . 25.3
Right of objection to nomination, Contractor's ................................... . 29.2 & 29.13(5)
Risks, Excepted .................................................................................. . 1.6
Role of the Engineer ............................................................................ . 1.8
Royalties .............................................................................................. 9
Rules of valuing variations ................................................................... 13.4
Safety and security of the Works ........................................................ . 4.4, 35.3 & 37.2
Schedule of defects ............................................................................ . 17.3
Schedule of Quantities and Rates ..................................................... .. 1.6,1.7,5.1,5.4,
5.5, 5.13(2), 13.4,
32.2(3),32.7(2)
Section of the Works ........................................................................... . 1.9
Sectional Completion .......................................................................... . 1.9,17.2(1),17.5(1),
18.1(1),18.4,
22.4(2) & 23.2
Sequence of work, Contractor to submit programme ........................ . 3.1 (2)(a)
Service of notices, general ................................................................... 1.10 & 39
Service of notices, special delivery ............................. '" ..................... . 1.11,5.15,32.1(6),
39,40,41.3(1) &
41.4(1)
J: Setting-out ........................................................................................... 7
i Settlement of disputes, arbitration ...................................................... . 41.4-41.7
Ii Settlement of disputes, Designated Representatives ......................... . 41.1-41.2
,II.
'i Settlement of disputes, mediation ...................................................... . 41.3
Singular, plural, masculine and feminine ............................................ . 1.2
III
!: Site management team, Contractor's ........................................... ,..... . 3.1 (1)(c), 10, 19.1(2)
Site, possession of .............................................................................. . 23.1 & 23.3
Skill and care, Contractor's .................................................................. 2.1 (2) & 2.3
Special delivery of notice of default or determination ........................ . 1.11
Specialist Contractors ......................................................................... . 1.6, 2.1 (1), 6.4(3),
25.1 (3),27.1 (2)(i),
30.1 (a) & 30.2
Specification ........................................................................................ 5.1 & 8.1
Specification, performance ................................................................. . 8.1 (2) & 9.2
Specified Peril ..................................................................................... . 1.6,17.3(1),17.6,
18.2(b), 18.5, 22C.1,
25.1(3) &37.1
xi
Standard conditions of Nominated Sub-Contract and
Nominated Supply Contract ............................................................. . 29.5
Standards, types and quality of materials .......................................... . 8.1
Statutory obligations ............................................................................ 2.1 (1 )(d), 5.9(h) & 6
Statutory requirements, compliance with ........................................... . 6
Statutory undertakers, reasonable access and facilities for ............... . 6.4(2) & 31
Sub-contract and supply contract, Contractor not
obliged to accept nomination ........................................................... . 29.2
SUb-contract and supply contract, varied form .................................. . 29.5
Sub-contract drawings ....................................................................... . 5.4 & 5.6
Sub-contractor and supplier warranty to Employer ............................ . 29.3
Sub-contractors and suppliers, payments to nominated ................... . 29.7,29.8 & 29.12
Sub-contractors and suppliers, responsibility of the Contractor ........ . 19.2 & 29.6
Sub-contractors' and suppliers' warranties etc, assignment of ......... . 5.11
Sub-contractor's and supplier's warranties etc,
assignment to the Employer upon determination ............................. . 35.4(7), 36.3(5) &
37.3(5)
Sub-letting ........................................................................................... 19.2 & 35.1 (1 )(e)
Substantial Completion ........................................................................ 1.6, 2.1 (h), 4.1, 13.4(8),
17,18.1,18.2,22.20),
22.4(2), 25.3(8),
29.10, 32.5(2), 32.6,
35.1 (1) & 41.5(2)
Substantial Completion Certificate ...................................................... 1.6, 5.11 (2), 5.12(1),
17,22.4,22C.1,
29.10(3) & 33.2A
SUbstantial Completion of Nominated Sub-Contract Works .............. . 29.10
Substantial Completion, Date of ......................................................... . 24.2(1) & 25.3(6)
Substantially Completed, definition of ................................................ . 1.6
Supply of plant, materials and labour ................................................. . 2.1 &8
Surety bond .......................................................................................... 33
Suspension of the Works ..................................................................... 22.2(g), 23.3(c),
25.1 (3)U) & 27.1 (2)(e)
Termination of Nominated Supply Contract ........................................ . 29.13 &29.14
Tests ..................................................................................................... 8.2
Time for completion ............................................................................ . 23.2
Time for completion, extension of ...................................................... . 25
Tropical cyclone warning signal No.8 ................................................ . 25.1 (3)(c)
Types, standards and quality .............................................................. . 8.1
Uncompleted work after Substantial Completion ............................... . 17.1
Uncovering and making openings ...................................................... . 8.2
Unsatisfactory work and materials, removal of ................................... . 8.3
xii
Use of Prime Cost and Provisional Sums ........................................... . 29
Utility companies, access for .............................................................. . 6.4(2) & 31
Valuation after determination of the Contractor's employment .......... . 35.5,35.6,35.7,
36.6 & 37.4
Valuations, interim .............................................................................. .. 29&32
Valuing variations ................................................................................ . 13.4
Variations, Contractors' confirmation of ............................................ .. 4.2 & 13.1(3)
Variations, definition of ....................................................................... .. 1.6
Variations, instructing ................................... :...................................... . 4 & 13
Variations, limits on instructing ............................................................ 4.1 & 13.1
Varied form of Nominated Sub-Contract and
Nominated Supply contract ............................................................. .. 29.5
Vouchers and the like, production of .................................................. . 13.4(2)(b)
Warranties, sub-contractors' and suppliers' assignment of ................ 5.11
Work by person other than the Contractor .......................................... 4.3(3), 17.3(4),30 & 31
Work required, remedy on Contractor's failure to carry out ................. 4.3(3), 17.3(4) & 35.1
Work, unsatisfactory - removal of ...................................................... .. 8.3
Workmanship, materials and ............................................................... . 8
Works, care of ..................................................................................... . 2.1 &22.7
Works, certificate of completion of .................................................... .. 17
Works, commencement and completion of ........................................ . 23.2
Works, damage to .............................................................................. .. 2.1, 22 & 22A-22C
Works, extension of time for completion ............................................ . 25
Works, partial possession of, by Employer ........................................ .. 18.1
Works, postponement or suspension of ............................................ .. 23.3
Works, safety and security ................................................................... 4.4, 35.3 & 37.2
Works, the whole of the ...................................................................... . 1.9(2), 5.11 (2), 5.12(1),
17.2(2),17.5(2),17.7,
19.2(a), 21.1 (2),
29.12(4), 32.1 (3),
32.5-32.6, 32.8, 33.2A,
35.1(1),36.1(1),
37.1(1) & 41.5(2)
Works, time of completion ................................................................... 23.2
Writing, communications to be in ...................................................... .. 1.10
xiii
Published by
The Hong Kong Institute of Architects
The Hong Kong Institute of Construction Managers
The Hong Kong Institute of Surveyors
Hong Kong SAR, China
The copyright of this publication is owned by The Hong Kong Institute of Architects, The Hong Kong Institute of Construction
Managers and The Hong Kong Institute of Surveyors. The contents do not necessarily reflect the views or opinions of these