11/15/2016

4TH YEAR BQS_2ND SEMESTER

[BQS 406]
STANDARD FORMS OF LECTURE 4:
CONSTRUCTION CONTRACTS STANDARD FORMS OF CONTRACTS (II)

LECTURER:
QS. NYAGAH BOORE KITHINJI
GRADUATE ASSISTANT:
QS. BELIS OTIENO OCHIENG
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SEMESTER: SEPTEMBER - DECEMBER 2016

STANDARD FORM OF CONTRACTS

An overview of the Standard Forms of
Contracts in use in Kenya
Agreement and Conditions of Contracts for
AGREEMENT AND
Building Works (JBC Conditions of Contract) CONDITIONS OF
ICE (Institute of Civil Engineers) Condition of
Contract CONTRACT FOR BUILDING
FIDIC Contract
WORKS
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DISCUSSION OF STANDARD FORM OF DISCUSSION OF STANDARD FORM OF

CONTRACTS
 AGREEMENT AND CONDITIONS OF CONTRACT FOR
BUILDING WORKS
 This was drafted by a body of representative from
the AAK (Architectural Association of Kenya) and KABCEC
(Kenya Association of Building and Civil Engineering
Contractors)
 It was a development of the EAIA standard forms
which had been used for a long time having been
introduced in 1965 (i.e. the first East Africa form of
contract)
5 1980, 1991 and 1999.
CONTRACTS
 AGREEMENT AND CONDITIONS OF CONTRACT FOR
BUILDING WORKS
 The EAIA Standard form was based on the RIBA
standard form of contract of 1963 edition, first
published in the UK in 1909.
 It is published by the JBC (Joint Building Council)
with the sanction (approval or authorization) of AAK
and KABCEC
 The JBC form of Contract has had several revisions in
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DISCUSSION OF STANDARD FORM OF DISCUSSION OF STANDARD FORM OF

CONTRACTS CONTRACTS
 AGREEMENT AND CONDITIONS OF CONTRACT FOR  AGREEMENT AND CONDITIONS OF CONTRACT FOR
BUILDING WORKS BUILDING WORKS
Clause 1: Definition
Purpose:
SALIENT POINTS CLAUSE BY
 To provide contract specific meanings of words used
CLAUSE in the contract for ease of interpretation of the
contract; to avoid confusion.
 Salient feature:
 Defines words and expressions of significance that are used in the conditions by giving
them the meanings that they assume in the context of the contract.
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 Words that are not defined in this clause should as much as possible assume their
ordinary every

DISCUSSION OF STANDARD FORM OF DISCUSSION OF STANDARD FORM OF

CONTRACTS CONTRACTS
 AGREEMENT AND CONDITIONS OF CONTRACT FOR  AGREEMENT AND CONDITIONS OF CONTRACT FOR
BUILDING WORKS BUILDING WORKS
Clause 2: Articles of Agreement Clause 3: General Obligations of the Employer
Clause 4: General Obligations of the Contractor
Purpose:
Clause 5: General Obligations of the Architect
 Name parties, record their agreement, name consideration, record the
basis of the contract and define the essential requirements to make it Clause 6: General Obligations of The Quantity Surveyor
possible to perform the contract. Clause 7: Contract Documents
 It establishes the formal, binding contractual relationship between the Clause 8: Contract Bills and Contract Price
parties.
Clause 9: Contractor’s Site Agent and Other Staff
 Records in general terms what the parties have agreed to do.
Clause 10: Clerk of Works
 The obligations of the parties are tied to the other conditions of contract
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Clause 11: Liability Against Injury to Person and Property
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 The contract comes into being when the parties sign against this clause.

DISCUSSION OF STANDARD FORM OF DISCUSSION OF STANDARD FORM OF

CONTRACTS CONTRACTS
 AGREEMENT AND CONDITIONS OF CONTRACT FOR  AGREEMENT AND CONDITIONS OF CONTRACT FOR
BUILDING WORKS BUILDING WORKS
Clause 13: Insurance of The Works (Contractor’s Liability) Clause 23: Specifications of Goods, Materials and Workmanship
Clause 14: Insurance of The Works (Employer’s Liability) Clause 24: Samples and Tests
Clause 15: Insurance of the Works (Work of Alteration etc.) Clause 25: Royalties and Patent Rights
Clause 16: Performance Bond Clause 26: Assignment
Clause 17: Compliance With Regulations, Notices, etc., Clause 27: Subletting
Clause 18: Programme of Works Clause 28: Suspension of the Works by The Architect
Clause 19: Access to The Works Clause 29: Suspension of The Works By the Contractor
Clause 20: Possession of Site and Commencement of Works Clause 30: Variations
Clause 21: Leveling and Setting Out 11
Clause 31: Nominated Sub-Contractors 12

Clause 22: Architect’s Instructions Clause 32: Nominated Suppliers

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DISCUSSION OF STANDARD FORM OF DISCUSSION OF STANDARD FORM OF

CONTRACTS CONTRACTS
 AGREEMENT AND CONDITIONS OF CONTRACT FOR  AGREEMENT AND CONDITIONS OF CONTRACT FOR
BUILDING WORKS BUILDING WORKS
Clause 33: Work by Other Persons Engaged by The Employer Clause 36: Extension of Time - 2
Clause 34: Payments Action by the Architect
Clause 35: Fluctuations  Evaluate application (the written notice)
Clause 36: Extension of Time  Consider reasons for delay 36.1.1 – 36.1.17
Action by Contractor  Within 30 DAYS of receiving application
 Reasonably apparent (when?)  Make in writing FAIR and REASONABLE extension
 Written notice  Continuing delay – INTERIM DECISION within 30 DAYS;
 To the Architect  FINAL decision WITHIN 30 DAYS of the end of the cause
 Give reasons, give supporting details –contemporary records,
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show extent 14

of the delay caused – or likely to be caused

DISCUSSION OF STANDARD FORM OF DISCUSSION OF STANDARD FORM OF

CONTRACTS CONTRACTS
 AGREEMENT AND CONDITIONS OF CONTRACT FOR  AGREEMENT AND CONDITIONS OF CONTRACT FOR
BUILDING WORKS BUILDING WORKS
Clause 36: Extension of Time - 3 Clause 36: Extension of Time - 4
 Consequences of delay by architect in making decision: Reduction in time

 Decision not communicated within 30 days (either final or interim)  Variation

 No JUSTIFIABLE REASON Clause 37: Loss and Expense Caused By Disturbance of Regular Progress of The
Works
 Time applied for DEEMED to have been ACCEPTED as being a FAIR Clause 38: Termination of The Contract by The Employer
EXTENSION OF TIME
Clause 39: Termination of The Contract by The Contractor
 Decision to TAKE EFFECT 14 DAYS after the EXPIRY of 30 DAYS (44 DAYS
AFTER APPLICATION) Clause 40: Termination of The Contract by Either Party
Clause 41: Practical Completion and Defects Liability
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Clause 42: Sectional Completion 16

DISCUSSION OF STANDARD FORM OF

CONTRACTS
 AGREEMENT AND CONDITIONS OF CONTRACT FOR
BUILDING WORKS
Clause 43: Damages for Delay in Completion
ICE
Clause 44: Antiquities and Other Objects of Value
Clause 45: Settlement of Disputes
(INSTITUTE OF CIVIL ENGINEERS)
CONDITIONS OF CONTRACT

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DISCUSSION OF STANDARD FORM OF DISCUSSION OF STANDARD FORM OF

CONTRACTS
 ICE (INSTITUTE OF CIVIL ENGINEERS) CONDITIONS
OF CONTRACT
 This is mainly used in the United Kingdom (UK) and
parts of Europe. However several projects funded by
European countries do employ all or some of its
provisions.
 This is a negotiated form that is produced by the ICE
Association of Consulting Engineers and the
Federation of Civil Engineering Contractors.
 It was first published in 1945 and the current 6 th
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CONTRACTS
 ICE (INSTITUTE OF CIVIL ENGINEERS) CONDITIONS
OF CONTRACT
 There is only one version for use with private and
public clients and it is intended for use on major civil
engineering projects e.g. roads, railways, docks,
harbours, dams, bridges and tunnels.
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edition appeared in 1999.

DISCUSSION OF STANDARD FORM OF DISCUSSION OF STANDARD FORM OF

CONTRACTS
 ICE (INSTITUTE OF CIVIL ENGINEERS) CONDITIONS
OF CONTRACT
 The essential features of the ICE condition of
contract is that:
 It provides a contract between the promoter
(employer in engineering projects) and a contractor
 The engineer provides the technical aspects of design
and specification and effectively translates the
contract.
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CONTRACTS
 ICE (INSTITUTE OF CIVIL ENGINEERS) CONDITIONS
OF CONTRACT
 The engineer is not a party to the contract and thus has no
legal rights and obligations under the contract. (The engineer
however has their own contract i.e. conditions of engagement
with the employer)
 The conditions create a re-measurement / measurement and
value contract (This means that the contractor is paid at the
contract rate to accommodate for all situations (which is
subject to the remeasurement of the actual quantities of work
done)
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DISCUSSION OF STANDARD FORM OF

CONTRACTS
 ICE (INSTITUTE OF CIVIL ENGINEERS) CONDITIONS


OF CONTRACT
This is recognized by the fact that the ICE Conditions of
FIDIC CONTRACT
contract makes no reference to a contract sum but refer FIDIC – French Acronym for the International Federation
instead to a tender total of Consulting Engineers
 The work under the ICE is to be carried out to the satisfaction
of the engineer whose powers of control and direction are
both extensive and apparently arbitrary (authoritarian)
 The Conditions contain wise provisions for adjustments of
contract sum usually in favour of the contractor.
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DISCUSSION OF STANDARD FORM OF DISCUSSION OF STANDARD FORM OF

CONTRACTS CONTRACTS
 FIDIC CONTRACT  FIDIC CONTRACT
 This is produced by the International Federation of  It has got two versions; the one for smaller contracts
Consulting Engineers (FIDIC) in association with the especially those sponsored by World Bank and the
European International Federation of Construction other one for large projects
(FEIC)  Additional Notes to be added (See Attached)
 It is substantially based on the ICE form but modified
to enable it to be used anywhere in the world.
 It contains special provisions to enable the parties to
decide under which nation’s legal system is the
contract to be executed. 25 26

DISCUSSION OF STANDARD FORM OF

CONTRACTS
 FIDIC CONTRACT
 This traditionally was the engineer’s country but THE MINISTRY OF WORKS FORM
recently it has changed to be country of the
employer. OF CONTRACT*
 The basic characteristic of the contract is that the
engineer is employed as the client’s agent and
(REPUBLIC OF KENYA MoW
representative as well as having certification powers. AGREEMENT)
 There are provisions for nominations of
subcontractor, settlement of disputes and all the
other complexities usually encountered in major
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standard forms of contracts.

DISCUSSION OF STANDARD FORM OF

CONTRACTS
 MoW* AGREEMENT
 This is produced by the Government of Kenya and it
is not industry conscious and so it is used by the
contractors to do government contracts.
 It is produced in two forms i.e. with or without
quantities

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