Article 75 Possession of Site and Access Thereto
75.1 Save insofar as Contract may prescribe:
(a) the extent of portions of the Site of which the Contractor is to be given possession from time to time, and
(b) the order in which such portions shall be made available to the Contractor and subject to any requirement in the Contract an to the order in which the Works shall be executed, the Employer will, with the Engineer's notice to commence the Works, give to the Contractor possession of
(c) so much of the Site, and
(d) such access as, in accordance with the Contract, is to be provided by the Employer as may be required to enable the Contractor to commence and proceed with the execution of the Works in accordance with the programme referred to in Clause 34, if any, and otherwise in accordance with such reasonable proposals as the Contractor shall, by notice to the Engineer with a copy to the Employer, make. The Employer will, from time to time as the Works proceed, give to the Contractor possession of such further portions of the Site as may be required to enable the Contractor to proceed with the execution of the Works with due dispatch in accordance with such programme or proposals, as the case may be.
75.2 If the Contractor suffers delay and/or incurs costs from failure on the part of the Employer to give possession in accordance with the terms of Clause 75.1, the Engineer shall, after due consultation with the Employer and the Contractor, determine:
(a) any extension of time to which the Contractor is entitled under Clause 77, and
(b) the amount of such costs, which shall be added to the Contract Price,and shall notify the Contractor accordingly, with a copy to the Employer.
75.3 The contractor shall bear all costs and charges for special or temporary way leaves required by him in connection with access to the Site. The Contractor shall also provide at his own cost any additional facilities outside the Site required by him for the purposes of the Works.
Article 76 Time for Completion
76.1 The whole of the Works and, if applicable, any Section required to the completed within a particular time as stated time as stated in Appendix to Tender, shall be completed, in accordance with the provisions of Clause 81, within the time stated in the Appendix to Tender for the whole of the Works or the Section calculated from the Commencement Date, or such extended time as may be allowed under Clause 77.
Article 77 Extension of Time for Completion
77.1 In the event of
(a) the amount or nature of extra or additional works, or
(b) any cause of delay referred to in these Conditions, or
(c) exceptionally adverse climatic conditions, or
(d) any delay, impediment or prevention by the Employer, or
(e) other special circumstances which may occur, other than through a default of or breach of contract by the Contractor or for which be is responsible, being such as fairly to entitle the Contractor to an extension of the Time for Completion of the Works, or any Section or part thereof, the Engineer shall, after due consultation with the Employer and the Contractor, determine the amount of such extension and shall notify the Contractor accordingly, with a copy to the Employer.
77.2 Provided that the Engineer is not bound to make any determination unless the Contractor has
(a) within 28 days after such event has first arisen notified the Engineer with copy to the Employer, and
(b) within 28 days, or such other reasonable time as may be agreed by the Engineer, after such notification submitted to the Engineer detailed particulars of any extension of time to which be may consider himself entitled in order that such submission may be investigated at the time.
77.3 Provided also that where an event has a continuing effect such that it is not practicable for the Contractor to submit detailed particulars within the period of 28 days referred to in Clause 77.2 (b), he shall nevertheless be entitled to an extension of time provided that he has submitted to the Engineer interim particulars at intervals of not more than 28 days and final particulars within 28 days of the end of the effects resulting from the event. On receipt of such interim particulars, the Engineer shall, without undue delay, make an interim determination of extension of time and, on receipt of the final particulars, the Engineer shall review all the circumstances and shall determine an overall extension of time in regard to the event. In both such cases the Engineer shall notify the Contractor accordingly, with a copy to the Employer. No final review shall result in a decrease of any extension of time already determined by the Engineer.
Article 78 Restriction on Working Hours
78.1 Subject to any provision to the contrary contained in the Contract, none of the Works shall, save as hereinafter provided, be carried on during the night or on locally recognized days of rest without the consent of the Engineer, except when work in unavoidable or absolutely necessary for the saving of life or property or for the safety of the Works, in which case the Contractor shall immediately advise the Engineer. Provided that the provisions of this Clause shall not be applicable in the case of any work which it is customary to carry out by multiple shifts.
Article 79 Rate of Progress
79.1 If for any reason, which does not entitle the Contractor to an extension of time, the rate of progress of the Works or any Section is at any time, in the opinion of the Engineer, too slow to comply with the Time for Completion, the Engineer shall so notify the Contractor who shall thereupon take such steps as are necessary, subject to the consent of the Engineer, to expedite essary, subject to the consent of the Engineer, to expedite progress so as to comply with the Time for Completion. The Contractor shall not be entitled to any additional payment for taking such steps. If, as a result of any notice given by the Engineer under this Clause the Contractor considers that it is necessary to do any work at night or on locally recognized days of rest, he shall be entiled to seek the consent of the Engineer so to do. Provided that if any steps, taken by the Contractor in meeting his obligations under this Clause, involve the Employer in additional supervision costs, such costs shall, after due consultation with the Employer and the Contractor, be determined by the Engineer and shall be recoverable from the Contractor by the Employer, and may be deducted by the Employer from any money due or to become due to the Contractor and the Engineer shall notify the Contractor accordingly, with a copy to the Employer.
Article 80 Liquidated Damages for Delay
80.1 If the Contractor fails to comply with the time for Completion in accordance with Clause 81, for the whole of the Works or, if applicable, any Section within the relevant time prescribed by Clause 76, then the Contractor shall pay to the Employer the relevant sum stated in the Appendix to Tender as liquidated damages for such default and not as a penalty (which sum shall be the only money due from the Contractor for such default) for every day or part of a day which shall elapse between the relevant Time for Completion and the date stated in a Taking-Over Certificate of the whole of the Works or the Appendix to Tender. The Employer may, without prejudice to any other method of recovery, deduct the amount of such damages from any money due or to become due to the Contractor. The payment or deduction of such damages shall not relieve the Contractor from his obligation to complete the Works, or from any other of his obligations and liabilities under the Contract.
80.2 If, before the Time for Completion of the whole of the Works or, if applicable, any Section, a Taking-Over Certificate has been issued for any part of the Works or of a Section, the liquidated damages for delay in completion of the remainder of the Works or of that Section shall, for any period of delay after the date stated in such Taking-Over Certificate, and in the absence of alternative provisions in the Contract, be reduced in the Proportion which the value of the Part so certified bears to the value for the whole of the Works or Section, as applicable. The provisions of this Sub-Clause shall only apply to the rate of liquidated damages and shall not affect the limit thereof.
Article 81 Taking-Over Certificate
81.1 When the whole of the Works have been substantially completed and have satisfactorily passed any Tests on Completion prescribed by the Contract, the Contractor may give a notice to that effect to the Engineer, with a copy to the Employer, accompanied by a written undertaking to finish with due expedition any outstanding work during the Defects Liability Period. Such notice and undertaking shall be deemed to be a request by the Contractor for the Engineer to issue a Taking-Over Certificate in respect of the Works. The engineer shall, within 21 days of the date of delivery of such notice, either issue to the Contractor, with a copy to the Employer, a Taking-Over Certificate, stating the date on which, in his opinion, the Works were substantially completed in accordance with the Contract, or give instructions in writing to the Contractor accordance with the Contract, or give instructions in writing to the Contractor specifying all the work which, in the Engineer's opinion, is required to be done by the Contractor before the issue of such Certificate. The Engineer shall also notify the Contractor of any defects in the Works affecting substantial completion that may appear after such instructions and before completion of the Works specified therein. The Contractor shall be entitled to receive such Taking-Over Certificate within 21 days of completion, to the satisfaction of the Engineer, of the Works so specified and remedying any defects so notified.
81.2 Similarly, in accordance with the procedure set out in Clause 81.1, the Contractor may request and the Engineer shall issue a Taking-Over Certificate in respect of:
(a) any Section in respect of which a separate Time for Completion is provided in the Appendix to Tender or
(b) any substantial part of the Permanent Works which has been both completed to the satisfaction of the Engineer and, otherwise than as provided for in the Contract, occupied or used by the Employer, or
(c) any part of the Permanent Works which the Employer has elected to occupy or use prior to completion (where such prior occupation or use is not provided for in the Contract or has not been agreed by the Contractor as a temporary measure).
81.3 If any part of the Permanent Works had been substantially completed and has satisfactorily passed any Tests on Completion prescribed by the Contract, the Engineer may issue a Taking-Over Certificate in respect of that part of the Permanent Works before completion of the whole of the Works and, upon the issue of such Certificate, the Contractor shall be deemed to have undertaken to complete with due expedition any outstanding work in that part of the Permanent Works during the Defects Liability Period.
81.4 Provided that a Taking-Over Certificate given in respect of any Section or part of the Permanent Works before completion of the whole of the Works shall not be deemed to certify completion of any ground or surfaces requiring reinstatement, unless such Taking-Over Certificate shall expressly so state.
Chapter 11 Defects Liability
Article 82 Defects Liability Period 82.1
In these Conditions the expression "Defects Liability Period" shall mean the defects liability period named in the Appendix to Tender, calculated from:
(a) the date of substantial completion of the Works certified by the Engineer in accordance with Clause 81, or
(b) in the event of more than one certificate having been issued by the Engineer under Clause 81, the respective dates so certified and in relation to the Defects Liability Period the expression "the Works" shall be constructed accordingly.
82.2 To the intent that the Works shall, at or as soon as practicable after the expiration of the Defects Liability Period, be delivered to the Employer in the condition required by the Contract, fair wear and tear excepted, to the satisfaction of the Engineer, the Contractor shall:
(a) complete the work, if any, outstanding on the date stated in the Taking-Over Certificate as soon as practicable after such date and
(b) execute all such work of amendment, reconstruction, and remedying defects, shrinkages, or other faults as the Engineer may, during the Defects Liability Period or within 14 days after its expiration, as a result of an inspection made by or on behalf of the Engineer prior to its expiration, instruct the Contractor to execute.
82.3 All work referred to in Clause 82.2 (b) shall be executed by the Contractor at his own cost if the necessity thereof is, in the opinion of the Engineer, due to:
(a) the use of materials, Plant or workmanship not in accordance with the Contract, or
(b) where the Contractor is responsible for the design of part of the Permanent Works, any fault in such design, or
(c) the neglect or failure on the part of the Contractor to comply with any obligation, expressed or implied, on the Contractor's part under the Contract.
If, in the opinion of the Engineer, such necessity in due to any other cause, he shall determine an addition to the Contract Price in accordance with Clause 84 and shall notify the Contractor accordingly, with a copy to the Employer.
82.4 In case of default on the Part of the Contractor in carrying out such instruction within a reasonable time, the Employer shall be entitled to employ and pay other persons to carry out the same and if such work in work which, in the opinion of the Engineer, the Contractor was liable to do at his own cost under the Contract, then all costs consequent thereon or incidental thereto shall, after due consultation with the Employer and the Contractor, be determined by the Engineer and shall be recoverable from the Contractor by the Employer, and may be deducted by the Employer from any money due or to become due to the Contractor and the Engineer shall notify the Contractor accordingly, with a copy to the Employer.
82.5 If any defect, shrinkage or other fault in the Works, appears at any time prior to the end of the Defects Liability Period, the Engineer may instruct the Contractor, with copy to the Employer, to search under the directions of the Engineer for the cause thereof. Unless such defect, shrinkage or other fault is one for which the Contractor is liable under the Contract, the Engineer shall, after due consultation with the Employer and the Contractor, determine the amount in respect of the costs of such search incurred by the Contractor, which shall be added to the Employer. If such defect, shrinkage or other fault is one for which the Contractor is liable, the cost of the work carried out in searching as aforesaid shall be borne by the Contractor and he shall in such case remedy such defect, shrinkage or other fault at his own cost in accordance with the provisions of Clause 82.
Chapter 12 Alterations, Additions and Omissions
Article 83 Variations
83.1 The Engineer shall make any variation of the form, quality or quantity of the Works or any part thereof that may, in his opinion, be necessary and for the purpose. Or if for any other reason if shall, in his opinion, be appropriate, then shall have the authority to instruct the Contractor to do and the Contractor shall do any of the following:
(a) increase or decrease the quantity of any work included in the Contract.
(b) omit any such work (but not if the omitted work is to be carried out by the Employer of any other contractor),
(c) change the character or quality or kind of any such work;
(d) change the levels, lines, position and dimensions of any part of the Works,
(e) execute additional work or any kind necessary for the completion of the Works.
(f) change any specified sequence or timing of construction of any part of the works.
No such variation shall in any way vitiate or invalidate the Contract, but the effect, if any, of all such variations shall be valued in accordance with Clause 84. provided that where the issue of an instruction to vary the Works in necessitated by some default of or breach of contract by the Contractor of for which he is responsible, any additional cost attributable to such default shall be borne by the Contractor.
83.2 The Contractor shall not make any such variation with out an instruction of the Engineer. Provided that no instruction shall be required for increase or decrease in the quantify of any work where such increase or decrease is not the result of an instruction given under this Clause,but is the result of the quantities exceeding or being less than those stated in the Bill of Quantities.
Article 84 Valuation of Variations
84.1 All variations referred to in Clause 83 and any additions to the Contract Price which are required to be determined in accordance with Clause 84 (for the purposes of this Clause referred to as "varied work" shall be valued at the rates and prices set out in the Contract if, in the opinion of the Engineer, the same shall be applicable, if the Contract does not contain any rates or prices applicable to the varied work, the rates and prices in the Contract shall be used as the basis for valuation so far as may be reasonable, failing which, after due consultation by the Engineer with the Employer and the Contract, suitable rates or prices shall be agreed upon between the Engineer and the Contractor. In the event of disagreement the Engineer shall fix such rates or prices as are. In his opinion, appropriate and shall notify the Contractor accordingly, with a copy to Employer. Until such time as rates or prices are agreed or fixed, the Engineer shall determine provisional rates or prices to enable in account payments to be included in certificates issued in accordance with Clause 92.
84.2 Provided that of the nature of amount of any varied work relative to the nature or amount of the whole of the Works or to any part thereof, is such that, in the opinion of the Engineer, the rate or price contained in the Contract for any item of the Works is, by reason of such varied work, rendered inappropriate or inapplicable, then, after due consultation by the Engineer with the Employer and the Contractor, a suitable rate or price shall be agreed upon between the Engineer and the Contractor. In the event of disagreement the Engineer shall fix such other rate or price as is, in his opinion, appropriate and shall notify the Contractor accordingly, with a copy to the Employer. Until such time as rates or prices are agreed or fixed, the Engineer shall determine provisional rates or prices to enable on-account payments to the included in certificates issued in accordance with Clause 92.
Provided also that not varied work instructed to be done by the Engineer pursuant to Clause 83 shall be valued under Clause 84.1 or under this Clause unless, within 14 days of the date of such instruction and, other than in the case of omitted work, before the commencement of the varied work, notice shall have been given either:
(a) by the Contractor to the Engineer of his intention to claim extra payment or a varied rate or price, or
(b) by the Engineer to the Contractor of his intention to vary a rate of price.
84.3 If, no the issue of the Taking-Over Certificate for the whole of the Works, it is found that as a result of:
(a) all varied work valued under Clause 84.1 and 84.2, and
(b) all adjustments upon measurement of the estimated quantities set out in the Bill of Quantities, excluding Provisional Sums, day works and adjustments of price made under Clause 102, but not from any other cause, there have been additions to or deductions from the Contract Price which taken together are in excess of 15 percent if the "Effective Contract Price"? (which for the purposes of this Sub - Clause shall mean the Contract Price, excluding Provisional Sums and allowance for dayworks, of any) then and in such event (subject to any action already taken under any other Sub -Clause of this Clause), after due consultation by the Engineer with the Employer and the Contractor, there shall be added to or deducted from the Contract Price such further sum as may be agreed between the Contractor and the Engineer or, failing agreement, determined by the Engineer having regard to the Contractor's Site and general overhead costs of the Contract. The Engineer shall notify the Contractor of any determination made under this Clause, with a copy to the Employer. Such sum shall be based only on the amount by which such additions or deductions shall be in excess of 15 per cent of the Effective Contract Price.
84.4 The Engineer may, if in his opinion it is necessary or desirable, issue an instruction that any varied work shall be executed on a daywork basis. The Contractor shall then be paid for such varied work under the terms set out in the daywork schedule included in the Contract and at the rates and prices affixed thereto by him in the Tender.
The Contractor shall furnish to the Engineer such receipts or other vouchers as may be necessary to prove the amounts paid and, before ordering materials, shall submit to Engineer quotations for the same for his approval.
In respect of such of the Works executed on a daywork basis, the Contractor shall, during the continuance of such work, deliver each day to the Engineer an exact list in duplicate of the names, occupation and time of all workmen employed on such work and a statement, also in duplicate, showing the description and quantity of all materials and Contractor's Equipment used thereon or therefor other than Contractor's Equipment which is included in the percentage addition in accordance with such daywork schedule. One copy of cach list and statement will, if correct. Or when agreed, be signed by the Engineer and returned to the Contractor.
At the end of each month the Contractor shall deliver to the Engineer a priced statement of the labour, materials and Contractor's Equipment, except as aforesaid, used and the Contractor shall not be entitled to any payment unless such lists and statements have been fully and punctually rendered. Provided always that if the Engineer considers that for any reason the sending of such lists or statements by the Contractor, in accordance with the foregoing provision, was impracticable he shall nevertheless be entitled to authorize payment for such work, either as daywork, on being satisfied as to the time employed and the labour, materials and Contractor's Equipment used on such work, or at such value there-for as shall, in his opinion, be fair and reasonable.
Chapter 13 Procedure for Claims
Article 85 Notice of Claims
85.1 Notwithstanding any other provision of the Contract, if the Contractor intends to claim any additional payment pursuant to any Clause of these Conditions or otherwise, he shall give notice of his intention to the Engineer, with a copy to the Employer, within 28 days after the event giving rise to the claim has first arisen.
85.2 Upon the happening of the event referred to in Clause 85.1, the Contractor shall keep such contemporary records. Without necessarily admitting the Employer's liability, the Engineer shall, on receipt of a notice under Clause 85.1, inspect such contemporary records and may instruct the Contractor to keep any further contemporary records as are reasonable and may be material to the claim of which notice has been given. The Contractor shall permit the Engineer to inspect all records keep pursuant to this Sub-Clause and shall supply him with copies thereof as and when the Engineer so instructs.
Article 86 Substantiation of Claims
86.1 Within 28 days, or such other reasonable time as may be agreed by the Engineer, of giving notice under Clause 85.1, the Contractor shall send to the Engineer an account giving detailed particulars of the amount claimed and the grounds upon which the claim is based. Where the event giving rise to the claim has a continuing effect, such account shall be considered to be an interim account and the Contractor shall, at such intervals as the Engineer may reasonably require, send further interim accounts giving the accumulated amount of the claim and any further grounds upon which it is based. In cases where interim accounts are sent to the Engineer, the Contractor shall send a final account within 28 days of the end of the effects resulting from the event. The Contractor shall, if required by the Engineer so to do. Copy to the Employer all accounts sent to the Engineer pursuant to this Sub-Clause.
86.2 If the Contractor fails to comply with any of the provisions of this Clause in respect of any claim which he seeks to make, his entitlement to payment in respect thereof shall not exceed such amount as the Engineer or any arbitrator or arbitrators appointed pursuant to Sub-Clause 99.3 assessing the claim considers to be verified by contemporary records.
Article 87 Payment of Claims
87.1 The Contractor shall be entitled to have included in any interim payment certified by the Engineer pursuant to Clause 92 such amount in respect of any claim as the Engineer, after due consultation with the Employer and the Contractor, may consider due to the Contractor provided that the Contractor has supplied sufficient particulars to enable the Engineer to determine the amount due. If such particulars are insufficient to substantiate the whole of the claim, the Contractor shall be entitled to payment in respect of such part of the claim as such particulars may substantiate to the satisfaction of the Engineer. The Engineer shall notify the Contractor of any determination made under this Sub-Clause, with a copy to the Employer.
Chapter 14 Contractor's Equipment, Temporary Works and Materials
Article 88 Contractor's Equipment, Temporary Works and Materials; Exclusive Use for the Works
88.1 All Contractor's Equipment, Temporary Works and materials provided by the Contractor shall, when brought on to the Site, be deemed to be exclusively intended for the execution of the Works and the Contractor shall not remove the same or any part thereof, except for the Purpose of moving it from one part of the Site to another, without the consent of the Engineer. Provided that consent shall not be required for vehicles engaged in transporting any staff, labour, Contractor's Equipment, Temporary Works, Plant or materials to or from the Site.
88.2 The Employer shall not at any time be liable, save as mentioned in Clauses 43-46 and 97, for the loss of or damage to any of the said Contractor's Equipment, Temporary Works or materials.
88.3 The Employer will use his best endeavours is assisting the Contractor, where required, in obtaining clearance through the Customs of Contractor's Equipment, materials and other things required for the Works.
88.4 In respect of any Contractor's Equipment which the Contractor has imported for the Purposes of the Works, the Employer will use his best endeavours to assist the Contractor, where required, in procuring any necessary Government consent to the re-export of such Contractor's Equipment by the Contractor upon the removal thereof pursuant to the terms of the Contract.
88.5 With a view to securing, in the event of termination under Clause 95, the continued availability, for the purpose of executing the Works, of any hired Contractor's Equipment, the Contractor shall not bring on to the Site any hired Contractor's Equipment, unless there is an agreement for the hire thereof (which agreement shall be deemed not to include an agreement for the hire purchase) which contains a provision that the owner thereof will, on request in writing made by the Employer within 7 days after the date on which any termination has become effective, and on the Employer undertaking to pay all hire charges in respect thereof from such date, hire such Contractor's Equipment to the Employer on the same terms in all respects as the same was hired to the Contractor save that the Employer shall be entitled to permit the use thereof by any other contractor employer by him for the purpose of executing and completion the Works and remedying any defects therein, under the terms of the said Clause 95.
88.6 In the event of the Employer entering into any agreement for the hire of Contractor's Equipment pursuant to Clause 88.5, all sums properly paid by the employer under the provisions of any such agreement and all costs incurred by him (including stamp duties) in entering into such agreement shall be deemed, for the purpose of Clause 95, to be part of the Cost of executing and completing the Works and the remedying of any defects therein.
88.7 The Contractor shall, where entering into any subcontract for the execution of any part of the Works, incorporate in such subcontract (by reference of other wise) the provisions of this Clause in relation to Contractor's Equipment, Temporary Works or materials brought on to the Site by the Subcontractor.
88.8 The operation of this Clause shall not be deemed to imply any approval by the Engineer of the materials or other matters referred to therein nor shall it prevent the rejection of any such materials at any time by the Engineer.
Chapter 15 Measurement
Article 89 Quantities
89.1 The quantities set out in the Bill of Quantities are the estimated quantities for the Works, and they are not to be taken as the actual and correct quantities of the Works to be executed by the Contractor in fulfillment of his obligations under the Contract.
89.2 The Engineer shall, except as otherwise stated, ascertain and determine by measurement the value of the Works in accordance with the Contract and the Contractor shall be paid that value in accordance with Clause 92. The Engineer shall, when he requires any part of the Works to be measured, give reasonable notice to the Contractor's authorized agent, who shall:
(a) forthwith attend or send a qualified representative to assist the Engineer in making such measurement, and
(b) supply all particulars required by the Engineer.
Should be Contractor not attend, or neglect or omit to send such representative, than the measurement made by the Engineer or approved by him shall be taken to be the correct measurement of such part of the Works, for the purpose of measuring such Permanent Works as are to be measured by records and drawings, the Engineer shall prepare records and drawings as the work proceeds and the Contractor, as and when called upon to do so in writing, shall, within 14 days attend to examine and agree such records and drawings with the Engineer and shall sign the same when so agreed. If the Contractor does not attend to examine and agree such records and drawings, they shall be taken to be correct. If, after examination of such records and drawings, the Contractor does not agree the same or does not sign the same as agreed, they shall nevertheless be taken to the correct, unless the Contractor, within 14 days of such examination, lodges with the Engineer notice of the respects in which such records and drawings are claimed by him to be incorrect. On receipt of such notice, the Engineer shall review the records and drawings and either confirm or vary them.
89.3 The Works shall be measured net, notwithstanding any general or local custom, except where otherwise provided for in the Contract.
89.4 For the purposes of statements submitted in accordance with Clause 92.1, the Contractor shall submit to the Engineer within 28 days after the receipt of the letter of Acceptance, a breakdown for each of the lump sum items contained in the Tender, such breakdowns shall be subject to the approval of the Engineer.
Chapter 16 Provisional Sums
Article 90 Definition of "Provisional Sum" and Use
90.1 "Provisional Sum" means a sum included in the Contract and so designated in the Bill of Quantities for the execution of any part of the Works or for the supply of goods, materials, Plant or services, or for contingencies, which sum may be used, in whole or in part, or not at all, on the instructions of the Engineer. The Contractor shall be entitled to only such amounts in respect of the work, supply or contingencies to which such Provisional Sums relate as the Engineer shall notify the Contractor of any determination made under this Sub-Clause, with a copy to the Employer.
90.2 In respect of every Provisional Sum the Engineer shall have authority to issue instructions for the execution of work or for the supply of goods, materials, Plant or services, by:
(a) the Contractor, in which case the Contractor shall be entitled to an amount equal to the value thereof determined in accordance with Clause 84.
(b) a nominated Subcontractor, as hereinafter defined, in which case the sum to be paid to the Contractor therefore shall be determined and paid in accordance with Clause 91.4.
90.3 The Contractor shall produce to the Engineer all quotations, invoices, vouchers and accounts or receipts in connection with expenditure in respect of Provisional Sums, except where work is valued in accordance with rates or prices set out in the Tender.
Chapter 17 Nominated Subcontractors
Article 91 Nominated Subcontractors
91.1 All specialists, merchants, tradesmen and others executing any work or supplying any goods, materials, Plant or services for which Provisional Sums are included in the Contract, who may have been or be nominated or selected or approved by the Employer of the engineer, and all persons to whom by virtue of the provisions of the Contract the Contractor is required to subcontract shall, in the execution of such work or the supply of such goods, materials, Plant or services, be deemed to be subcontractors to the Contractor and are referred to in this Contract as "nominated Subcontractors".?
91.2 The Contractor shall not be required by the Employer or the Engineer, or be deemed to be under any obligation, to employ any nominated Subcontractor against whom the Contractor may raise reasonable objection. Or who decline to enter into a subcontract with the Contractor containing provisions.
(a) that in respect of the work, goods, materials, Plant or services the subject of the Subcontract, the nominated Subcontractor will undertake towards the Contractor such obligations and liabilities as will enable the Contractor to discharge his own obligations and liabilities towards the Employer under the terms of the Contract and will save harmless and indemnify the Contractor from and against the same and from all claims, proceedings, damages, costs, charges and expenses whatsoever arising out of or in connection therewith, or arising out of or in connection with any failure to perform such obligation or to fulfil such liabilities, and
(b) that the nominated Subcontractor will save harmless and indemnify the Contractor from and against any negligence by the nominated Subcontractor, his agents, workmen and servants and from and against any misuse by him or them of any Temporary Works provided by the Contractor for the purposes of the Contract and from, all claims as aforesaid.
91.3 If in connection with any Provisional Sum the services to be provided include any matter of design or specification of any part of the Permanent Works or of any Plant to be incorporated therein, such requirement shall be expressly stated in the Contract and shall be included in any nominated Subcontract. The nominated Subcontract shall specify that the nominated Subcontractor providing such services will save harmless and indemnify the Contractor from and against the same and from all claims, proceedings, damages, costs, charges and expenses whatsoever arising out of or in connection with any failure to perform such obligations or to fulfil such liabilities.
91.4 For all work executed or goods, materials, Plant or services supplied by any nominated Subcontractor, the Contractor shall be entitled to:
(a) the actual price paid or due to be paid by the Contractor, on the instructions of the Engineer, and in accordance with the subcontract;
(b) in respect of labour supplied by the Contractor, the sum, if any entered in the Bill of Quantities or if instructed by the Engineer pursuant to Clause 90.2(a) , as may be determined in accordance with Clause 84;
(c) in respect of all other charges and profit, a sum being a percentage rate of the actual price paid or due to be paid calculated, where provision has been made in the Bill of Quantities for a rate to be set against the relevant Provisional Sum, at the rate inserted by the Contractor against that item or, where on such provision has been made, at the rate inserted by the Contractor in the Appendix to Tender and repeated where provision for such is made in a special item provided in the Bill of Quantities for such purpose.
91.5 Before issuing, under Clause 92, any certificate, which includes any payment in respect of work done or goods, materials, Plant or services supplied by any nominated Subcontractor, the Engineer shall be entitled to demand from the Contractor reasonable proof that all payments, less retentions, included in previous certificates in respect of the works or goods, materials, Plant or services of such nominated Subcontractor have been paid or discharged by the Contractor. If the Contractor fails to supply such, proof then, unless the Contractor.
(a) satisfies the Engineer in writing that be has reasonable cause for withholding or refusing to make such payments and
(b) produces to the Engineer reasonable proof that he has so informed such nominated Subcontractor in writing.
The Employer shall be entitled to pay to such nominated Subcontractor direct, upon the certificate of the Engineer, all payments, less retentions, provided for in the nominated Subcontract, which the Contractor has failed to make to such nominated tract, which the Contractor has failed to make to such nominated Subcontractor and to deduct by way of set-off the amount so paid by the Employer from any sums due of to decome due from the Employer to he Contractor.
Provided that, where the Engineer has certified and the Employer has paid direct and aforesaid, the engineer shall, in issuing any further certificate in favour of the Contractor, deduct from the amount thereof the amount so paid, direct as aforesaid, but shall not withhold or delay the issue of the certificate itself when due to be issued under the terms of the Contract.
Chapter 18 Certificated and Payment
Article 92 Monthly Statement and Payment
92.1 The Contractor shall submit to the Engineer after the end of each month six copies, each signed by the Contractor's representative approved by the Engineer in accordance with Clauses 57.1-2, of a statement, in such form as the Engineer may from time to time prescribe, showing the amounts to which the Contractor considers himself to be entitled up to the end of the month in respect of
(a) the value of the Permanent Works executed
(b) any other items in the Bill of Quantities including those for Contractor's Equipment, Temporary Works, dayworks and the like.
(c) the percentage of the invoice value of listed materials, all as stated in the Appendix to Tender, and plant delivered by the Contractor on the Site for incorporation in the Permanent Works but not incorporated in such Works.
(d) adjustments under Clauses 102 and 103.
(e) any other sum to which the Contractor may be entitled under the Contract.
92.2 The Engineer shall, within 28 days of receiving such statement, certify to the Employer the amount of payment to the Contractor which he considers due and payable in respect thereof, subject:
(a) firstly, to the retention of the amount calculated by applying the Percentage of Retention stated in the Appendix to Tender, to the amount to which the Contractor is entitled under Clause 92.1 (a), (b), (c) and (e) until the amount so retained reaches the Limit of Retention Money stated in the Appendix to Tender, and
(b) secondly, to the deduction, other than pursuant to Clause 80, of any sums which may have become due and payable by the Contractor to the Employer.
Provided that Engineer shall not be bound to certify any payment under this Clause if the net amount thereof, after all retentions and deductions, would be less than the Minimum Amount of Interim Certificates stated in the Appendix to Tender.
Notwithstanding the terms of this Clause or any other Clause of the Contract no amount will be certified by the Engineer for payment until the performance security, if required under the Contract, has been provided by the Contractor and approved by the Employer.
92.3 (a) Upon the issue of the Taking-Over Certificate with respect to the whole of the Works, one half of the Retention Money, or upon the issue of the Taking-Over Certificate with respect to a Section or part of the Permanent Works only such proportion thereof as the Engineer determines having regard to the relative value of such Section or part of the Permanent Works, shall be certified by the Engineer for payment to the Contractor.
(b) Upon the expiration of the Defects Liability Period for the Works the other half of the Retention Money shall be certified by the Engineer for payment to the Contractor. Provided that, in the event of different Defects Liability Periods having become applicable to different Sections or parts of the Permanent Works pursuant to Clause 81, the expression of the Defects Liability Period shall, for the purposes of this Clause, be deemed to mean the expiration of the latest of such periods.
Provided also that if at such time, there shall remain to be executed by the Contractor any work ordered, pursuant to Clauses 82, in respect of the Works, the Engineer shall be entitled to withhold certification until completion of such work of so such of the balance of the Retention Money as shall, in the opinion of the Engineer, represent the cost of the work remaining to be executed.
92.4 The Engineer may be any interim certificate make any correction or modification in any previous certificate which shall have been issued by him and shall have authority, if any work is not being carried out to his satisfaction, to omit or reduce the value of such work in any interim certificate.
92.5 Not later than 84 days after the issue of the Taking-Over Certificate in respect of the whole of the Works, the Contractor shall submit to the Engineer a Statement at Completion with supporting documents showing detail, in the form approved by the Engineer.
(a) the final value of all work done in accordance with the Contract up to the date stated in such Taking-Over Certificate
(b) any further sums which the Contractor considers to be due and
(c) an estimate of amount which to Contractor considers will become due to him under the Contract.
Estimated amounts shall be shown separately in such Statement at Completion. The Engineer shall certify payment in accordance with Clause 92.2.
92.6 Not later than 56 days after the issue of the Defects Liability Certificate pursuant to Clause 94.1, the Contractor shall submit to the Engineer for consideration a draft final statement with supporting documents showing in detail, in the form approved by the Engineer,
(a) the value of all work done in accordance with the Contract and
(b) any further sums which the Contractor considers to be due to him under the Contract.
If the Engineer disagrees with or cannot verify any part of the draft final statement, the Contractor shall submit such further information as the Engineer may reasonably require and shall make such changes in the draft as may be agreed between them. The Contractor shall then prepare and submit to the Engineer the final statement as agreed (for the purposes of these Conditions referred to as the Final Statement).
92.7 Upon submission of the Final Statement, the Contractor shall give to the Employer, with a copy to the Engineer, a written discharge confirming that the total of the Final Statement represents full and final settlement of all monies due to the Contractor arising out of or in respect of the Contract. Provided that such discharge shall become effective only after payment due under the Final Certificate issued pursuant to Clause 92.8 has been made the performance security referred to in Clause 27.1, if any, has been returned to the Contractor.
92.8 Within 28 days after receipt of the Final Statement, and the written discharge, the Engineer shall issue to the Employer (with a copy to the Contractor) a Final Certificate stating.
(a) the amount which, in the opinion of the Engineer, is finally due under the Contract, and
(b) after giving credit to the Employer for all amounts previously paid by the Employer and for all sums to which the Employer is entitled under the Contract, other than Clause 80, the balance, if any, due from the Employer to the Contractor of from the Contractor to the Employer as the case may be.
92.9 The employer shall not be liable to the Contractor for matter or thing arising out of or in connection with the Contract or execution of the Works, unless the Contractor shall have included a claim in respect thereof in his Final Statement and (except in respect of matters or thins arising after the issue of the Taking-Over Certificate in respect of the whole of the Works) in the Statement at Completion referred to in Clause 92.5.
92.10 The amount due to the Contractor under any interim certificate issued by the Engineer pursuant to this Clause, or to any other term of the Contract, shall, subject to Clause 80, be paid by the Employer to the Contractor within 28 days after such interim certificate has delivered to the Employer, or, in the case of the Final Certificate referred to in Clause 82.8, within 56 days, after such Final Certificate has been delivered to the Employer. In the event of the failure of the Employer to make payment within the times stated, the Employer shall pay to the Contractor interest at the rate stated in the Appendix to Tender upon all sums unpaid from the date by which the same should have been paid. The provisions of this Sub-Clause are without prejudice to the Contractor's entitlement under Clause 101.
Article 93 Approval only by Defects Liability Certificate
93.1 Only the Defects Liability Certificate, referred to in Clause 44, shall be deemed to constitute approval of the Works.
Article 94 Detects Liability Certificate
94.1 The Contract shall not be considered as completed until a Defects Liability Certificate shall have been signed by the Engineer and delivered to the Employer, with a copy to the Contractor, station the date on which the Contractor shall have completed his obligations to execute and complete the Works and remedy any defects therein to the Engineer's satisfaction. The Defects Liability Certificate shall be given by the Engineer within 28 days after the expiration of the Defects Liability Period, or, if different defects liability periods shall become applicable to different Sections or parts of the Permanent Works, the expiration of the latest such period, or as soon thereafter as any works instructed, pursuant to Clause 82, have been completed to the satisfaction of the Engineer. Provided that the issue of the Defects Liability Certificate shall not be a condition precedent to payment to the Contractor of the second portion of the Retention Money in accordance with the conditions set out in Clause 92.3.
94.2 Notwithstanding the issue of the Defects Liability Certificate the Contractor and the Employer shall remain liable for the furfilment of any obligation incurred under the provisions of the Contract prior to the issue of the Defects Liability Certificate which remains unperformed at the time such Defects Liability Certificate is issued and, for the purposes of determining the mature and extent of any such obligation, the Contract shall be deemed to remain in force between the parties to the Contract.
Chapter 19 Remedies
Article 95 Default of Contractor
95.1 If the Contractor is deemed by law unable to pay his debts as they fall due, or enters into voluntary or involuntary bankruptcy, liquidation or dissolution (other than a voluntary liquidation for the purposes of amalgamation or reconstruction), or becomes insolvent, or makes an arrangement with, or assignment in favour of, his creditors, or agrees to carry out the Contract under a committed of inspection of his creditors, or if a receiver, administrator, trustee or liquidator is appointed over any substantial part of his assets, or if, under any law or regulation relating to reorganization, arrangement or readjustment of debts, proceedings are commenced against the Contractor or resolutions passed in connection with dissolution or liquidation or if any steps are taken to enforce any security interest over a substantial part of the assets of the Contractor, or if any act is done or event occurs with respect to the Contractor of his assets which, under any applicable law has a substantially similar effect to any of the foregoing acts or events, or if the Contractor has contravened Clause 12.1, or has an execution levied on his goods, or if the Engineer certifies to the Employer, with a copy to the Contractor, that, in his opinion, the Contractor:
(a) has repudiated the Contract, or
(b) without reasonable excuse has failed
(i) to commence the Works in accordance with Clause 74.1, or
(ii) to proceed with the Works, or any Section thereof, within 28 days after receiving notice pursuant to Clause 79.1, or
(c) has failed to comply with a notice issued pursuant to Clause 72.4 or an instruction issued pursuant to Clause 72.8 within 28 days after having received it, or
(d) despite previous warning from the Engineer, in writing, is other-wise persistently or fragrantly neglecting to comply with any of his obligations under the Contract, or
(e) has contravened Clause 13.1, then the Employer may, after giving 14 days?notice to the Contractor, enter upon the Site and the Works and terminate the employment of the Contractor without thereby releasing the Contractor from any of his obligations or liabilities under the Contract, or affecting the rights and authorities conferred on the Employer or the Engineer by the Contract, and may himself complete the Works or may employ any other contractor to complete the Works. The Employer or such other contractor may use for such completion so much of the Contractor's Equipment, Temporary Works and materials as he or they think proper.
95.2 The Engineer shall, as soon as may be predicable after any such entry and termination buy the Employer, fix and determine exparte, or by or after reference to the parties or after such investigation or enquiries as the may think fit to make or institute, and shall certify:
(a) what amount (if any) had, at the time of such entry and termination, been reasonably earned by or would reasonably accrue to the Contractor in respect of work then actually done by him under the Contract, and
(b) the value of any of the said unused or partially used materials, any Contractor's Equipment and any Temporary Works.
95.3 If the Employer terminates the Contractor's employment under this Clause, he shall not be liable to pay to the Contractor any further amount (including damages) in respect of the Contract until the expiration of the Defects Liability Period and thereafter until the costs of execution, completion and remedying of any defects, damages for delay in completion (if any) and all other expenses incurred by the Employer have been ascertained and the amount thereof certified by the Engineer. The Contractor shall then be entitled to receive only such sum (if any) as the Engineer may certify would have been payable to him upon due completion by him after deduction the said amount. If such amount exceeds the sum which would have been payable to the Contractor on due completion by him, them the Contractor to the Employer and shall be recoverable accordingly.
95.4 Unless prohibited by law, the Contractor shall, if so instructed by the Engineer within 14 days of such entry and termination referred to in Clause 95.1, assign to the Employer the benefit of any agreement for the supply of any goods or materials or services and/or for the execution of any work for the purposes of the Contract, which the Contractor may have entered into.
Article 96 Urgent Remedial Work
96.1 If, by reason of any accident, or failure, or other event occurring to, in, or in connection with the Works. Or any part thereof, either during the execution of the Works, or during the Defects Liability Period, any remedial or other work is, in the opinion of the Engineer, urgently necessary for the safety of the Works and the Contractor is unable or unwilling at once to do such work, the Employer shall be entitled to employ and pay other persons to carry out such work as the Engineer may consider necessary. If the work or repair so done by the Employer is work which, in the opinion of the Engineer, the Contractor was liable to do at his own cost under the Contract, then all costs consequent thereon or incidental thereto shall, after due consultation with the Employer and the Contractor, be determined by the Engineer and shall be recoverable from the Contractor by the Employer, and may be deducted by the Employer from any monies due or to become due to the Contractor and the Engineer shall notify the Contractor accordingly, with a copy to the Employer. Provided that the Engineer shall, as soon after the occurrence of any such emergency as may be reasonably practicable, notify the Contractor thereof.
Chapter 20 Special Risks
Article 97 No Liability for Special Risks
97.1 The Contractor shall be under no liability whatsoever in consequence of any of the special risks referred to in Clause 97.2, whether by way of indemnity or otherwise, for or in respect of:
(a) destruction of or damage to the Works, save to work condemned under the provisions of Clauses 72.8, 72.9 prior to the occurrence of any of the said special risks, or
(b) destruction of or damage to property, whether of the Employer or third parties, or
(c) injury or loss of life.
97.2 The special risks are:
(a) the risks defined under Clause 46.1 (a), (c), (d) and (e) , and
(b) the risks defined under Clause 46.1 (b) insofar as these relate to the country in which the Works are to be executed.
97.3 If the Works or any materials or Plant on or near or in transit to the Site, or any of the Contractor's Equipment, sustain destruction or damage by reason of any of the said special risks, the Contractor shall be entitled to payment in accordance with the Contract for any Permanent Works duly executed and for any materials or Plant so destroyer or damaged and, so far as may be required by the Engineer or as may be necessary for the completion of the Works, to payment for:
(a) rectifying any such destruction or damage to the Works and
(b) replacing or rectifying such materials or Contractor's Equipment and the Engineer shall determine and addition to the Contract Price in accordance with Clause 84 (which shall in the case of the cost of replacement of Contractor's Equipment include the fair market value thereof as determined by the Engineer) and shall notify the Contractor accordingly, with a copy to the Employer.
97.4 Destruction, damage, injury or loss of life caused by the explosion or impact, whenever and wherever occurring, of any mine, bomb, shell, grenade, or other projectile, missile, munition, or explosive of war, shall be deemed to be a consequence of the said special risks.
97.5 Save to the extent that the Contractor is entitled to payment under any other provision of the Contract, the Employer shall repay to the Contractor any costs of the execution of the Works (other than such as may be attributable to the cost of reconstructing work condemned under the provisions of Clauses 72.8, 72.9 prior to the occurrence of any special risk) which are howsoever attributable to or consequent on or the result of or in any way whatsoever connected with the said special risks, subject however to the provisions in this Clause hereinafter contained in regard to outbreak of war, but the Contractor shall, as soon as any such cost comes to his knowledge, forthwith notify the Engineer thereof. The Engineer shall, after due consultation with the Employer and the Contractor, determine the amount of the Contractor's costs in respect thereof which shall be added to the Contract Price and shall notify the Contractor accordingly, with a copy to the Employer.
97.6 If, during the currency of the Contract, there in an outbreak of war, whether war is declared or not, in any part of the world which, whether financially or otherwise, materially affects the execution of the Works, the Contractor shall, unless and until the Contract is terminated under the provisions of this Clause, continue to use his best endeavours to complete the execution of the Works. Provided that the Employer shall be entitled, at any time after such outbreak of war, to terminate the Contract by giving notice to the Contractor and, upon such notice being given, the Contract shall, except as to the rights of the parties under this Clause and to the operation of Clause 99, terminate, but without prejudice to the rights of either party in respect of any antecedent breach thereof.
97.7 If the Contract is terminated under the provisions of Clause 97.6, the Contractor shall, with all reasonable dispatch, remove from the Site all Contractor's Equipment and shall give similar facilities to his Sub-contractors to do so.
97.8 If the Contract is terminated as aforesaid, the Contractor shall be paid by the Employer, insofar as such amounts or items have not already been covered by payments on account made to the Contractor, for all work executed prior to the date of termination at the rates and prices provided in the Contract and in addition.
(a) The amounts payable in respect of any preliminary items referred to in the Bill of Quantities, so far as the work or service comprised therein has been carried out or performed, and a proper proportion of any such items which have been partially carried out or performed.
(b) The cost of materials, Plant or goods reasonably ordered for the Works which have been delivered to the Contractor or of which the Contractor is legally liable to accept delivery, such materials, Plant or goods becoming the property of the Employer upon such payments being made by him.
(c) A sum being the amount of any expenditure reasonably incurred by the Contractor in the expectation of completing the whole of the Works insofar as such expenditure has not been covered by any other payments referred to in this Sub-Clause.
(d) Any additional sum payable under the provisions of Clauses 97.3 and 97.5.
(e) Such proportion of the cost as may be reasonable, taking into account payments made or to be made for work executed, of removal of Contractor's Equipment under Clause 97.7 and, if required by the Contractor, return thereof to the Contractor's main plant yard in his country of registration or to other destination, at on greater cost.
(f) The reasonable cost of repatriation of all the Contractor's staff and workmen employed on or in connection with the Works at the time of such termination.
Provided that against any payment due from the Employer under this Sub-Clause, the Employer shall be entitled to be credited with any outstanding balances due from the Contractor for advances in respect of Contractor's Equipment, materials and Plant and any other sums which, at the date of termination, were recoverable by the Employer from the Contractor under the terms of the Contract. Any sums payable under this Clause shall, after due consultation with the Employer and the Contractor, be determined by the Engineer who shall notify the Contractor accordingly, with a copy to the Employer.
Chapter 21 Release from Performance
Article 98 Payment in Event of Release from Performance
98.1 If any circumstance outside the control of both parties arises after the issue of the Letter of Acceptance which renders it impossible or unlawful for either party to fulfil his contractual obligations, or under the law governing the Contract the parties are released from further performance, then the sum payable fy the Employer to the Contractor in respect of the work executed shall be the same as that which would have been payable under Clause 97 if the Contract had been terminated under the provisions of Clause.
Chapter 22 Settlement of Disputes
Article 99 Settlement of Disputes
99.1 If a dispute of any kind whatsoever arises between the Employer and the Contractor in connection with or arising out of the Contract or the execution of the Works, whether during the execution of the Works or after their completion and whether before of after repudiation or other termination of the Contract, including any dispute as to any opinion, instruction, determination, certificate or valuation of the Engineer, the matter in dispute shall, in the first place, be referred in writing to the Engineer, with a copy to the other party. Such reference shall state that it is made pursuant to this Clause. No later that the 84 any after the day on which he received such reference the Engineer shall give notice of his decision to the Employer and the Contractor. Such decision shall state that it is made pursuant to this Clause.
Unless the Contract has already been repudiated or terminated, the Contractor shall, in every case, continue to proceed with the Works with all due diligence and the Contractor and the Employer shall give effect forthwith to every such decision of the Employer shall give effect forthwith to every such decision of the Engineer unless and until the same shall be revised, as hereinafter provided, in an amicable settlement or an arbitral award.
If either the Employer or the Contractor be dissatisfied with any decision of the Engineer, or if the Engineer fails to give notice of his decision on or before the eighty-fourth day after the day on which he received the reference, then either the Employer or the Contractor may, on or before the seventieth day after the day on which he received notice of such decision, or on or before the seventieth day after the day on which the said period of 84 days expired, as the case may be, give notice to the other party, with a copy for information to the Engineer, of his intention to commence arbitration, as hereinafter provided as to the matter in dispute. Such notice shall establish the entitlement of the party giving the same to commence arbitration, as hereinafter provided, as to such dispute and, subject to Clause 99.4, no arbitration in respect thereof may be commenced unless such notice is given.
If the Engineer has given notice of his decision as to a matter in dispute to the Employer and the Contractor and no notification of intention to commence arbitration as to such dispute has been given by either the Employer or the Contractor on or before the seventieth day after the day on which the parties received notice as to such decision from the Engineer, the said decision shall become final and binding upon the Employer and the Contractor.
99.2 Where notice of intention to commence arbitration as to a dispute has been given in accordance with Clause 99.1, arbitration of such dispute shall not be commenced unless an attempt has first been made by the parties to settle such dispute amicably. Provided that, unless the parties otherwise agree, arbitration may be commenced on or after the fifty-sixth day after the day on which notice of intention to commence arbitration of such dispute was given, whether or not any attempt at amicable settlement thereof has been made.
99.3 Any dispute in respect of which:
(a) the decision, if any, of the Engineer has not become final and binding pursuant to Clause 99.1, and
(b) amicable settlement has not been reached within the period stated in Clause 99.2.shall be finally settle, unless otherwise specified in the Contract, by China International Economic and Trade Arbitration Commission, Shenzhen Commission under its Arbitration Rules. An Arbitration tribunal will hear the disputes. The said tribunal shall have full power to open up, review and revise any decision, opinion, instruction, determination, certificate or valuation of the Engineer related to the dispute.
Neither party shall the limited in the proceedings before such arbitration tribunal to the evidence or arguments put before the Engineer for the purpose of obtaining his said decision pursuant to Clause 99.1, No such decision shall disqualify the Engineer from being called as a witness and giving evidence before the arbitration tribunal on any matter whatsoever relevant to the dispute.
Arbitration may be commenced prior to or after completion of the Works, provided that the obligations of the Employer, the Engineer and the Contractor shall not be altered by reason of the arbitration being conducted during the progress of the Works.
99.4 Where neither the Employer nor the Contractor has given notice of intention to commence arbitration of a dispute within the period stated in Clause 99.1 and the related decision has become final and binding, either party may, if the other party fails to comply with such decision, and without prejudice to any other rights it may have, refer the failure to arbitration in accordance with Clause 99.3 The provisions of Clauses 99.2 shall not apply to any such reference.
Chapter 23 Notices
Article 100 Notice
100.1 All certificates, notices or instructions to be given to the Contractor by the shall be sent by post, cable, telex or facsimile transmission to or left at the Contractor's principal place of business or such other address as the Contractor shall nominate for that purpose.
100.2 Any notice to be given to the Employer or to the Employer or to the Engineer under the terms of the Contract shall be sent by post, cable, telex or facsimile transmission to or left at the respective addresses nominated for the purpose in Condition.
100.3 Either party may change a nominated address to another address in the country where the Works are being executed by prior notice to the other party, with a copy to the Engineer, and the Engineer may do so by prior notice to both parties.
Chapter 24 Default of Employer
Article 101 Default of Employer
101.1 In the event of the Employer:
(a) failing to pay to the Contractor the amount due under any certificate of the Engineer within 28 days after the expity of the time stated in Clause 92.10 within which payment is to be made, subject to any deduction that the Employer is entitled to be made, subject to any deduction that the Employer is entitled to make under the Contract, or
(b) interfering with or obstructing or refusing any required approval to the issue of any such certificate, or
(c) becoming bankrupt or, being a company, going into liquidation, other than for the purpose of a scheme of reconstruction or amalgamation, or
(d) giving notice to the Contractor that for unforeseen reasons, due to economic dislocation, or is impossible for him to continue to meet his contractual obligations, the Contractor shall be entitled to terminate his employment under the Contract by giving notice to the Employer, with a copy to the Engineer, Such termination shall take effect 14 days after the giving of the notice.
101.2 Upon the expiry of the 14 days?notice referred to in Clause 101.1, the Contractor shall, notwithstanding the provisions of Clause 88.1 with all reasonable dispatch, remove from the Site all Contractor's Equipment brought by him thereon.
101.3 In the event of such termination the Employer shall be under the same obligations to the Contractor in regard to payment as if the Contract had been terminated under the provisions of Clause 97, but, in addition to the payments specified in Clause 97.8, the Employer shall pay to the Contractor the amount of any loss or damage to the Contractor arising out of or in connection with or by consequence of such termination.
101.4 Without prejudice to the Contractor's entitlement to interest under Clause 92.10 and to terminate under Sub-Contractor the amount due under any certificate of the Engineer within 18 days after the expiry of the time stated in Clause 92.10 within which payment is to be made, subject to any deduction that the Employer is entitled to make under the Contract, after giving 28 days?prior notice to the Employer, with a copy to the Engineer, suspend work or reduce the rate of work.
If the Contractor suspend work or reduces the rate of work in accordance with the provisions of this Sub-Clause and thereby suffers delay or incurs cost the Engineer shall, after due consultation with the Employer and the Contractor, determine
(a) any extension of time to which to Contractor is entitled under Clause 77, and
(b) the amount of such costs, which shall be added to the Contract Price,and shall notify the Contractor accordingly, with a copy to the Employer.
101.5 Where the Contractor suspends work or reduces the rate of work, having given notice in accordance with Clause 101.4, and the Employer subsequently pays the amount due, including interest pursuant to Clause 92. 10, the Contractor's entitlement under Clause 101.1 shall, if notice of termination has not been given, lapse and the Contractor shall resume normal working as soon as is reasonably possible.
Chapter 25 Changes in Cost and Legislation
Article 102 Increase or Decrease of Cost
102.1 Adjustments to the Contract Price shall be made in respect of rise or fall in the cost of local labour and specified materials as set out in this Clause.
(a) Local Workmen
(i) For the purpose of this Sub-Clause
"Local Workmen" means skilled, semi-skilled and unskilled workmen of all trades engaged by the Contractor on the Site for the purpose of or in connection with the Contract or engaged full time by the Contractor off the Site for the purpose of or in connection with the Contract (by way of illustration but not limitation: workmen engaged full time in any office, store, workshop or quarry).
"Basic Rate" means the applicable basic minimum wage rate prevailing on the date 28 days prior the latest date for submission of tenders by reason of any National or State Statute, Ordinance, Decree or other Law or any regulations or bye-law of any local or other duly constituted authority, or in order to conform with practice amongst good employers generally in the area where the Works are to be carried out.
"Current Rate" means the applicable basic minimum wage rate for Local Workmen prevailing on any date subsequent to the date 28 days prior to the latest date set for submission of tenders by reason of any National or State Statute. Ordinance, Decree or other Law or any regulation or bye-law of any local or other buly constituted authority, or in order to conform with practice amongst good employers generally in the area where the works are to be carried out.
(ii) The adjustment to the Contract Price under the terms of this Sub-Clause shall be calculated by multiplying the difference between the Basic and Current Rates for Local workmen by:
(a) the number of all hours actually worked, and also
(b) in respect of those hours worked at overtime rates, by the product of the number of said hours and the percentage addition required by the law to the paid by the Contractor for over time.
Such adjustment may be either an addition to or a deduction from to Contract Price.
(iii) No other adjustment of the Contract Price on account of fluctuation in the remuneration of Local Workmen shall be made.
(b) Specified Materials
(i) For the purpose of this Sub-Clause:
"Specified Materials" means the materials stated in Appendix (insert reference) to Tender required on the Site for the execution and completion of the Works.
"Basic Prices" means the current prices for the specified mater ails prevailing on the date 28 days prior to the latest date for submission of Tenders.
"Current Prices" means the current prices for the specified materials prevailing at any date subsequent to the date 28 days prior to the latest date for submission of tenders.
(ii) The adjustment to the Contract Price under the terms of this Sub-Clause shall be calculated by applying the difference between the Basic and Current Prices to the Quantity of the appropriate Specified Material which is delivered to the Saite during the period for which the particular Current Price is effective. Such adjustment may be either an addition to or a deduction from the Contract Price.
(iii) The Contractor shall use due diligence to ensure that excessive wastage of the Specified Materials shall not occur. Any Specified Materials removed form the Site shall be clearly identified in the records required under paragraph (d) of this Sub-Clause.
(iv) The provisions of this Sub-Clause shall apply to fuels used in Contractor's Equipment engaged on the Site for the purposes of executing the Works, including vehicles owned by the Contractor (or hired by him under long term arrangements under which the Contractor is obligaed to supply fuel) engaged in transporting any staff, labour, Contractor's Equipment, Temporary Works, plant or materials to and from the Site. Such fuels shall be clearly identified in the records required under paragraph (d) of this Sub-Clause. The provisions of this Sub-Clause shall to apply to any fuels sold or supplied to any employed of the Contractor or to any person for use in any motor vehicle not being used for the purposes of the Contract.
(v) The Contractor shall at all times have regard to suitable markets and shall, whenever buying materials a variation in the cost of which would give rise to an adjustment of the Contract Price under this Sub-Clause, be diligent to buy or procure the same at the most economical prices as are consistent with the due performance by the Contractor of his obligations under the Contract.
If at any time there shall have been any lack of diligence, default or negligence on the part of the Contractor, whether in observing the above requirements or otherwise. Then, for the purposes of adjusting the Contract Price pursuant hereto, no account shall be taken of any increase in cost which may be attributable to such lack of diligence, default or negligence and the amount by which any cost would have been decreased but for such lack of diligence. Default or negligence shall be deducted from the Contract Price.
(vi) No other adjustment to the Contract Price on account of fluctuation in the cost of materials shall be made.
(c) Overheads and Profits Excluded
In determining the amount of any adjustment to the Contract Price pursuant to this Sub-Clause no account shall be taken of any overheads or profits.
(d) Notices and Records
The Contractor shall forthwith, upon the happening of any ever which may or any be likely to give rise to adjustment of the Contract Price pursuant to this Sub-Clause, give notice thereof to the Engineer and the Contractor shall keep such books, accounts and other documents and records as are necessary to enable adjustment under this Sub-Clause to be made and shall, at the request of the Engineer, furnish any invoices, accounts, documents or records so kept and such other information as the Engineer may require.
(e) Adjustment after Date of Completion
Adjustment to the Contract Price, after the due date for completion of the whole of the Works pursuant to Clause 76, or after the date of completion of the whole of the Works certified pursuant to Clause 81, shall be made in accordance with Current Rates or Current Prices, as applicable, ruling at the due date for completion or the date stated in the Taking-Over Certificate, whichever is the earlier.
(f) Determination of Adjustment to Contract Price
The amount of any adjustment to the Contract Price pursuant to this Sub-Clause shall be determined by the Engineer in accordance with the foregoing rules.
Article 103 Subsequent Legislation
103.1 If after the date 28 days prior to the latest date for submission of tenders for the Contract there occur in the country in which the Works are being or are to be executed changes to any National or State Statute, Oridinance, Decree or other Law or any regulation or byu-law of any local or other duly constituted authority, or the introduction of any such State Stature, Ordinance, Decree, Law, regulation or bye-law which causes additional or reduced cost to the Contractor, other that under Sub-Clause 102.1, in the execution of the Contract, such additional or reduced cost shall, after due consultation with the Employer and the additional or reduced cost shall, after due consultation with the Employer and the Contractor, be determined by the Engineer and shall be added to or deducted from the contract price and the Engineer shall notify the Contractor accordingly, with a copy to the Employer.
Chapter 26 Currency and Rates of Exchange
Article 104 Currency Restrictions
104.1 If, after the date 28 days prior to the latest date for submission of tenders for the Contract, the Government or authorized agency of the Government of the country in which the Works are being or are to be executed imposes currency restrictions and/or transfer of currency restrictions in relation to the currency or currencies in which the Contract Price is to the paid, the Employer shall reimburse any loss or damage to the Contractor arising therefrom, without prejudice to the right to the Contractor to exercise any other rights or remedies to which he is entitled in such event.
Article 105 Rates of Exchange
105.1 Where the Contract provides for payment in whole or in part to be made to the Contractor in foreign currency or currencies, such payment shall not be subject to variations in the rate or rates of exchange between such specified foreign currency or currencies and the currency of the country in which the Works are to be executed.
105.2 Where the Employer has required the Tender to be expressed in a single currency but with payment to be made in more than one currency and the Contractor has stated the proportions or amounts of other currency or currencies in which he requires payment to the made, the rate or rates of excharge applicable for calculation the payment of such proportions or amounts shall, unless otherwise stated in there Conditions, be those prevailing, as determined by the Central Bank of the country in which the Works are to be executed, on the date 28 days prior to the latest date for the submission of tenders for the Contract, as has been notified to the Contractor by the Employer prior to the submission of tenders or as provided for in the Tender.
105.3 Where the Contract provides for payment in more that one currency, the proportions or amount to be paid in foreign currencies in respect of Provisional Sums shall be determined in accordance with the principles set forth in Clauses 105.1 and
105.2 as and when these sums are utilized in whole or in part in accordance with the provisions of Clauses 90 and 91.
Chapter 27 Validation of Contract
Article 106 Validation of Contract
106.1 This contract shall come into force on the day when all of the following conditions have been met:
(a) signature by the authorized representatives of the both Parties,
(b) Approval from the respective Governmental authorities, if required.
106.2 Both parties shall work to complete the conditions in clause 106.1 within two months of signing this contract.
106.3 Upon completion of the conditions in clause106.1, the date of coming into force of this Contract shall be confirmed by an exchange of letters between the Parties.
106.4 The contract shall remain in force until all of the obligations of the parties have been fulfilled.