ARTICLES OF AGREEMENT

THIS AGREEMENT is made on the …………… day of ………………, ………………………

BETWEEN………… ………………………………………………………………………………………..
[Name of Employer]
of ……………………………………………………………………………….………………………….
[Address of Employer]
……………………………………………………………………………………………………….

(hereinafter called the “Employer”) of the one part;

AND…………………………………………………………………………………………………
[Name of Contractor]
of ……………………………………………………………………………………………………
[Address of Contractor]
……………………………………………………………………………………………………….

(hereinafter called the “Contractor”) of the other part.

WHEREAS:

(1) The Employer is desirous that certain Works should be designed (to the extent required
by the Contract), executed and completed by the Contractor, namely,

……………………………………………………………………………………………...
[Brief description of the Works]

………………………………………………………………………………………………

………………………………………………………………………………………………

(hereinafter called the “Works”) at ………………………………………………………...

[Location or address of the Site]

………………………………………………………………………………………………

………………………………………………………………………………………………

CIDB Standard Form of Contract for Building Works 2000 Edition I

- Articles of Agreement
 and has caused Drawings, Specifications and Bills of Quantities (if Option Module A

applies) showing and describing the Works to be executed, to be prepared by or under the

direction of the Superintending Officer.

(2) The Employer has accepted a Tender by the Contractor for the design (to the extent

provided for by the Contract Documents), execution and completion of the Works and the

remedy of Defects.

NOW IT IS HEREBY AGREED AS FOLLOWS:

Article 1

In consideration of the payments to be made by the Employer to the Contractor as hereinafter

mentioned the Contractor will upon and subject to the Contract Documents carry out the design

(to the extent required by the Contract), execute and complete the Works shown upon and

described by or referred to in the Contract Documents and remedy the Defects in accordance with

the Conditions of Contract.

Article 2

The Employer will pay to the Contractor for the design (to the extent required by the Contract)

execution and completion of the Works and the remedy of Defects the sum of Malaysian Ringgit:

………………………………………………………………………………………………………

……………………………………………………………………… (RM………………………………….)

Only or such sum as may become payable under the provisions of the Contract (hereinafter called

the “Contract Sum”) at the times and in the manner prescribed by the Contract.

CIDB Standard Form of Contract for Building Works 2000 Edition II

- Articles of Agreement
Article 3

The following Contact Documents (in order of priority) shall be deemed to form and be read and

construed as part of the Contract: -

(1) The Articles of Agreement;

(2) The Letter of Award;

(3) The Conditions;

(4) The Addenda Nos:………………………….;

(5) The Drawings;

(6) The Specifications;

(7) The Schedule of Works or Bills of Quantities (if Option Module A applies); and

(8) Other documents (if any) stated below:

(a) ……………………………………………………….

(b) ……………………………………………………….

(c) ……………………………………………………….

(d) ……………………………………………………….

CIDB Standard Form of Contract for Building Works 2000 Edition III
- Articles of Agreement
Article 4

The term “Superintending Officer” in this Contract shall mean ……………………………………

[Name of person,]
……………………………………………………………………………………………………….

of ……………………………………………………………………………………………………
[Address of Superintending Officer]
……………………………………………………………………………………………………….

or in the event of his death or ceasing to be the Superintending Officer for the purpose of the

Contract, such other person as the Employer shall nominate and appoint within 30 days a

succeeding Superintending Officer for that purpose. Provided that during the continuance of the

Contract the person succeeding as the Superintending Officer shall not disregard or overrule any

decision, approval or instruction given to the Contractor in writing by his predecessor unless he is

satisfied that such action will not cause any pecuniary loss to the Contractor or unless such action

be ordered as a Variation pursuant to Clause 24 of the Conditions of Contract.

Article 5

The term “Architect” in the Contract shall mean ..…………………………………………………

[Name of person]
of ……………………………………………………………………………………………………
[Address of the Architect]
………………………………………………………………………………………………………

or in the event of his death or ceasing to be the Architect for the purpose of the Contract, such

other person as the Employer shall nominate and appoint within 30 days a succeeding Architect

for that purpose.

CIDB Standard Form of Contract for Building Works 2000 Edition IV

- Articles of Agreement
Article 6

The term “Civil and Structural Engineer” in the Contract shall mean ……………………….……

……………………………………………………………………………………………………….
[Name of person]

of ……………………………………………………………………………………………………
[Address of Civil and Structural Engineer]
………………………………………………………………………………………………………

or in the event of his death or ceasing to be the Civil and Structural Engineer for the purpose of

the Contract, such other person as the Employer shall nominate and appoint within 30 days a

succeeding Civil and Structural Engineer for that purpose.

Article 7

The term “Mechanical and Electrical Engineer” in the Contract shall mean …………………….

……………………………………………………………………………………………………….
[Name of person]

of ……………………………………………………………………………………………………
[Address of Mechanical and Electrical Engineer]

………………………………………………………………………………………………………

or in the event of his death or ceasing to be the Mechanical and Electrical Engineer for the

purpose of the Contract, such other person as the Employer shall nominate and appoint within 30

days a succeeding Mechanical and Electrical for that purpose.

Article 8

The term “Quantity Surveyor” in the Contract shall mean ………………………………………...

……………………………………………………………………………………………………….
[Name of person]
of ……………………………………………………………………………………………………
[Address of Quantity Surveyor]
………………………………………………………………………………………………………

CIDB Standard Form of Contract for Building Works 2000 Edition V

- Articles of Agreement
or in the event of his death or ceasing to be the Quantity Surveyor for the purpose of the

Contract, such other person as the Employer shall nominate and appoint within 30 days a

succeeding Quantity Surveyor for that purpose.

Article 9

The term “Specialist Consultant” in the Contract shall mean:

(1) ……………………………………………………………………………………………..
[Name of person]
in the capacity of …………………………………………………………………………...
[State the nature of specialist consultancy]

of …………………………………………………………………………………………...
[Address of the Specialist Consultant]
………………………………………………………………………………………………

(2) ……………………………………………………………………………………………..
[Name of person]
in the capacity of …………………………………………………………………………...
[State the nature of specialist consultancy]

of …………………………………………………………………………………………...
[Address of the Specialist Consultant]
………………………………………………………………………………………………

(3) ……………………………………………………………………………………………..
[Name of person]
in the capacity of …………………………………………………………………………...
[State the nature of specialist consultancy]

of …………………………………………………………………………………………...
[Address of the Specialist Consultant]
………………………………………………………………………………………………

[Add additional rows if necessary]

or in the event of his death or ceasing to be the Specialist Consultant for the purpose of the

Contract, such other person as the Employer shall nominate and appoint within 30 days a

succeeding Specialist Consultant for that purpose.

CIDB Standard Form of Contract for Building Works 2000 Edition VI

- Articles of Agreement
Article 10

If any dispute or difference shall arise in connection with or out of the Contract or the execution

of the Works, such dispute or difference shall be resolved in accordance with the provisions of

Clause 47 of the Conditions of Contract.

Article 11

In these Articles of Agreement words and expressions shall have the same meanings as are

respectively assigned to them in the Conditions of Contract annexed hereto.

CIDB Standard Form of Contract for Building Works 2000 Edition VII
- Articles of Agreement
IN WITNESS WHEREOF

*The hand of the EMPLOYER has been hereunto set the day and year } Signature ……………….……………………….…...
}
first above written in the presence of:
}
} Name ……………………….……………..……..…..
}
}
Signature of Witness ………..……………………………………….… } Designation ………………………………………...

Name ……………………………………………….…………………...

Identity Card No ……………………………………………………….

* The Common Seal of …………………………………………….….

……………………………………………………………. was hereunto
affixed in the presence of:

Signature ……………….……………………………………………… Signature ………………….……………………..…..……

Name ………………………………………………………………….... Name ……………………………………………………...

Director Director/Secretary*

IN WITNESS WHEREOF

*The hand of the CONTRACTOR has been hereunto set the day and } Signature ……………………….………….………...
}
year first above written in the presence of:
}
} Name ………………………………….……………..
}
Signature of Witness ….………………………………………….…… }
} Designation ………………………………………...
Name ……………………………………………………….…………...

Identity Card No ……………………………………………………….

* The Common Seal of …………………….………………………….

……………………………………………………………. was hereunto
affixed in the presence of:

Signature ……………….…………………………………………….… Signature …………………………….………….………...

Name …………………………………………………………………… Name …………………………………….………………..

Director Director/Secretary*

* Delete as appropriate

The affixing of the Common Seal to be witnessed in accordance with the Articles of Association of the Company.

CIDB Standard Form of Contract for Building Works 2000 Edition VIII
- Articles of Agreement
TABLE OF CONTENTS
Page No.

ARTICLES OF AGREEMENT I - VIII

CONDITIONS OF CONTRACT

1 DEFINITIONS AND INTERPRETATION 1

1.1 Definitions 1
1.2 Singular and Plural 8
1.3 Headings and Marginal Notes 8
1.4 Persons, Firms or Corporation 8

2 SUPERINTENDING OFFICER AND

SUPERINTENDING OFFICER’S REPRESENTATIVE 9
2.1 Superintending Officer’s Duties and Authority 9
2.2 Superintending Officer’s Representatives 9
2.3 Superintending Officer’s Authority to Delegate 9
2.4 Appointment of Assistants 10

3 SUPERINTENDING OFFICER’S INSTRUCTIONS 10

3.1 Compliance with the Superintending Officer’s Instructions 10
3.2 Provision Empowering Instructions 11
3.3 Instructions to be In Writing 11
3.4 Instructions to Nominated Sub-Contractor or Nominated Supplier 12
3.5 Urgent Repairs 12

4 CONTRACT DOCUMENTS 12
4.1 Contract Documents to be Mutually Explanatory 12
4.2 Custody of Contract Documents 12
4.3 Supply of Drawings by Superintending Officer 12
4.4 Supply of Drawings by the Contractor 13
4.5 Drawings to be Kept on Site 13
4.6 Need for Further Drawings 13
4.7 Supplementary Drawings and Instructions 14
4.8 Consequences of Delay in Supplying Further Drawings 14
4.9 Confidentiality and Limitation of Use of Documents 14
4.10 As-Built Drawings 15

5 WORKS PROGRAMME AND METHOD STATEMENT 15

5.1 Submission of Works Programme and Method Statement 15
5.2 Works Programme and Method Statement not Part
of Contract Document 15
5.3 Approval 16
5.4 Disapproval 16
5.5 Start of Work Without Approval 16
5.6 Modification or Revision to Works Programme 16
and/or Method Statement

6 GENERAL OBLIGATIONS OF THE EMPLOYER 17

6.1 Employer’s General Responsibilities 17

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7 GENERAL OBLIGATIONS OF THE CONTRACTOR 17

7.1 Contractor’s General Responsibilities 17
7.2 Site Operations and Methods of Construction 17
7.3 Contractor’s Responsibility for Sub-contractors 18
7.4 Responsibility for Identifying the Discrepancy 18
7.5 Sufficiency of Contract Sum 18

8 NOTICES 18
8.1 Serving of Notices 18

9 PATENT RIGHTS, TRADEMARKS, ROYALTIES 19

9.1 Patent Rights 19
9.2 Royalties 19

10 COMPLIANCE WITH STATUTES, REGULATIONS 19

10.1 Statutory Requirements 19
10.2 Variation arising from Compliance 20
10.3 Change in Statutory Requirements 20

11 ENVIRONMENTAL MATTERS 21
11.1 Compliance with Environmental Quality Act 1974 21

12 SETTING OUT 21
12.1 Accurate Setting Out 21
12.2 Errors in Setting Out 21

13 SITE ADMINISTRATION 22
13.1 Days and Hours of Working 22
13.2 Contractor’s Representative 22
13.3 Removal of Workmen and Other Personnel 23
13.4 Access for Superintending Officer 23

14 SAFETY AT THE SITE 23

14.1 Compliance with Safety Requirements 23
14.2 Submission of Safety Programme 24
14.3 Safety Office and Personnel 24
14.4 Safety Measures 24

15 QUALITY IN CONSTRUCTION 25
15.1 Equipment, Materials, Goods and Workmanship 25
15.2 Quality Assurance and Quality Control 25
15.3 Supply of Samples 25
15.4 Cost of Test 25
15.5 Examination and Measurement of Works before Covering Up 26
15.6 Uncovering and Making Openings 27
15.7 Defects during the Progress of the Works 27

16 LABOUR 28
16.1 Engagement of Workmen and Labour 28
16.2 Returns of Labour 28

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17 COMMENCEMENT OF WORKS AND POSSESSION OF SITE 28

17.1 Date of Commencement 28
17.2 Possession of Site 29
17.3 No Date of Commencement or Failure to Give Possession 29
17.4 Rights of Way or Access 30

18 OTHER CONTRACTORS 30
18.1 Employer’s Right to Employ Other Contractors 30
18.2 Inspection of Work Done by Other Contractors 30

19 SUSPENSION 31
19.1 Suspension of Work 31
19.2 Prolonged Suspension 31
19.3 Effects of Prolonged Suspension 32

20 TIME FOR COMPLETION 32

20.1 Contractor to Complete on Time 32
20.2 Certificate of Practical Completion 33
20.3 Access for Remedial Work 33

21 TEST ON COMPLETION 34
21.1 Notice of Tests and Test Reports 34
21.2 Failure to Appoint Time for Test 34
21.3 Facilities for Test on Completion 34
21.4 Repeat Tests 34

22 SECTIONAL COMPLETION 35
22.1 Completion in Sections 35

23 PARTIAL OCCUPATION BY THE EMPLOYER 35

23.1 Occupation of Part with Consent 35
23.2 Consequential Effects 36
23.3 Occupation of Part without Consent 37

24 DELAY AND EXTENSION OF TIME 37

24.1 Extension of Time 37
24.2 Notice of Delay 39
24.3 Superintending Officer’s Decision 39
24.4 Interim Decision of Extension of Time 40
24.5 Superintending Officer’s Discretion 41
24.6 Certificate of Extension of Time 41
24.7 Review of Superintending Officer’s Decision 41

25 EXPEDITING PROGRESS OF WORKS 41

25.1 Notification to Expedite 41
25.2 Work to Expedite Progress 42

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26 NON-COMPLETION AND DAMAGES FOR DELAY

IN COMPLETION 42
26.1 Certificate of Non-Completion 42
26.2 Damages for Non-Completion 43
26.3 Employer’s Rights for Damages at Law 43
26.4 Extension of Time During Delay Period 43

27 DEFECTS LIABILITY AFTER COMPLETION 43

27.1 Completion of Outstanding Work and Remedying Defects 43
27.2 Cost of Remedying Defects 44
27.3 Default in Remedying Defects 44
27.4 Diminution in Value of Works 44
27.5 Contractor to Search 44
27.6 Certificate of Making Good Defects 45
27.7 Liability at Law 45

28 VARIATIONS 45
28.1 Power to Order Variations 45

29 VALUATION OF VARIATIONS 46
29.1 Valuation Method 46
29.2 Agreement on Valuation 47
29.3 Inclusion of Variations in Interim Certificates 48

30 MEASUREMENT 48
30.1 Contractor to Attend Measurement 48
30.2 Contractor to Provide Assistance 48
30.3 Record of Measurements 49
30.4 Failure to Agree Measurements 49

31 CLAIMS FOR LOSS AND EXPENSE 49

31.1 Reasons for Loss and Expense Claim 49

32 PROCEDURE FOR CLAIMS 50

32.1 Notice of Claims 50
32.2 Contemporary Records 51
32.3 Substantiation of Claims 51
32.4 Access to Contractor’s Books and Documents 52
32.5 Payment of Claims 52
32.6 Failure to Comply 52

33 CONSTRUCTION PLANT, TEMPORARY WORKS,

MATERIALS AND GOODS 53
33.1 Exclusive Use for the Works 53
33.2 Passing of Property and Vesting 53
33.3 Employer Not Liable for Damage 53
33.4 Conditions for Hire of Construction Plant 53
33.5 Re-vesting and Removal 54
33.6 Incorporation of Clause in Sub-Contracts 54

CIDB Standard Form of Contract for Building Works 2000 Edition (iv)
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 Page No.

34 GENERAL RESPONSIBILITIES 54
34.1 Care of the Works 54
34.2 Responsibility to Rectify Damage, Loss or Injury 55

35 INDEMNITY PROVISIONS 55
35.1 Injury to Persons 55
35.2 Damage to Property 55
35.3 Contribution 56
35.4 Contractor to Rectify Damage 56
35.5 Damage to Property of Employer or Relevant Authority 56

36 INSURANCE FOR PERSONAL INJURY AND PROPERY DAMAGE 57

36.1 Taking of Third Party Liability Insurance 57
36.2 Deposition of the Policies 57
36.3 Default in Insuring 57

37 INSURANCE FOR WORKMEN 58

37.1 Employee’s Social Security Scheme for Local Workmen 58
37.2 Workmen’s Compensation Insurance for Foreign Workers 58
37.3 Insurance for Local Workmen not Subject to SOCSO 59
37.4 Default in Compliance 59

38 INSURANCE OF THE WORKS 60

38.1 Alternative Clauses 60

38A INSURANCE OF THE WORKS – BY THE CONTRACTOR 60

38A.1 All Risks Insurance 60
38A.2 Deposition of Insurance 60
38A.3 Default in Insuring 61
38A.4 Maintenance of Independent General Policy 61
38A.5 Contractor Liable for Insurance Excesses 61
38A.6 Damage, Loss or Injury to the Works 62

38B INSURANCE OF THE WORKS – BY THE EMPLOYER 62

38B.1 All Risks Insurance 62
38B.2 Default by the Employer to Insure 63
38B.3 Contractor Liable for Insurance Excesses 63
38B.4 Damage, Loss or Injury to the Works 64

38C INSURANCE OF EXISTING BUILDING OR STRUCTURE 65

- BY THE EMPLOYER
38C.1 Risks to be Insured 65
38C.2 Default by the Employer to Insure 66
38C.3 Contractor Liable for Insurance Excesses 66
38D.4 Damage, Loss or Injury to the Works 66

39 ANTIQUITIES AND FOSSILS 67

39.1 Property and Protection of Discovery 67

40 ASSIGNMENT AND SUB-CONTRACTING 67

40.1 Assignment by Contractor 67
40.2 Assignment by Employer 68
40.3 Documents on Assignment 68
40.4 Sub-Contracting 68

CIDB Standard Form of Contract for Building Works 2000 Edition (v)
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41 PRIME COST AND PROVISIONAL SUMS 69

41.1 Prime Cost Sum 69
41.2 Provisional Sums 69

42 PAYMENT 70
42.1 Statement of Work Done 70
42.2 Valuation and Interim Certificates 70
42.3 Retention Monies 71
42.4 Correction of Certificates 73
42.5 Statement at Completion 73
42.6 Penultimate Certificate 74
42.7 Final Claim Statement 74
42.8 Final Account and Final Certificate 75
42.9 Period of Honouring Certificate 76
42.10 Suspension for Non Payment 77
42.11 Deemed Payment 78
42.12 Delay in Certification 78
42.13 Effect of Payments other than Payment of Final Certificate 78

43 EFFECT OF SUPERINTENDING OFFICER’S CERTIFICATE 78

43.1 Certificate Not Conclusive 78
43.2 Effect of Final Certificate 79

44 DETERMINATION BY EMPLOYER 80
44.1 Determination Due to Default By Contractor 80
44.2 Determination Due to Bankruptcy or Insolvency 81
44.3 Effects of Determination of Contractor’s Employment 82
44.4 Certificate of Termination Costs 84
44.5 Notices under Clause 44 85

45 DETERMINATION BY THE CONTRACTOR 85

45.1 Determination by Contractor with Notice 85
45.2 Determination by Contractor Without Notice 86
45.3 Effects of Determination 87
45.4 Notices under Clause 45 88

46 TERMINATION WITHOUT DEFAULT 88

46.1 Right of the Employer to Terminate 88
46.2 Effects of Termination 88

47 SETTLEMENT OF DISPUTES 89
47.1 Reference to the Superintending Office 89
47.2 Reference to Mediation 89
47.3 Reference to Arbitration 90
47.4 Settlement of Dispute in the Event of Determination 92

48 RECOVERY BY THE EMPLOYER 92

48.1 Employer’s Right to Recovery 92

49 GOVERNING LAW 92
49.1 Law 92

CIDB Standard Form of Contract for Building Works 2000 Edition (vi)
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 Page No.

50 TAXES AND DUTIES 93

50.1 Payment of Custom Duties and Taxes 93

51 MISCELLANEOUS PROVISIONS 93
51.1 Business Ethics 93
51.2 Declaration Against Waiver 93
51.3 Notice of Garnishment 93
51.4 Stamp Duties 93

APPENDIX 94

OPTION MODULE A - Bills of Quantities 97

OPTION MODULE B - Unfixed Equipment Materials or Goods 98

Stored Off Site

OPTION MODULE C - Nominated Sub-Contractors and/or

Nominated Suppliers 100

OPTION MODULE D - Works Designed by the Contractor 107

OPTION MODULE E – Payment Bond 110

OPTION MODULE F – Performance Security Deposit 111

CIDB Standard Form of Contract for Building Works 2000 Edition (vii)
.- Contents for Conditions of Contract
CONDITIONS OF CONTRACT
1 DEFINITIONS AND INTERPRETATION
1.1 Definitions Definitions

In the Contract (as hereinafter defined) the following words and

expressions shall have the meanings hereby assigned to them, except
where the context otherwise requires:

Word or phrase Meaning

All Risks Insurance the insurance which provides cover against any
physical damage, loss or injury to work
executed and Equipment, materials or goods
and against the reasonable cost of the removal
and disposal of debris and of any shoring and
propping of the Works which results from such
physical damage, loss or injury but excluding
the cost necessary to repair, replace or rectify:

(a) property which is defective due to:

(i) wear and tear,

(ii) obsolescence,
(iii) deterioration, rust or mildew;

(b) any work executed or any Equipment,

materials or goods damaged, lost or
injured as a result of its own defect in
design, plan, specification, material or
workmanship or any work executed
which is damaged, lost or injured in
consequence thereof where such work
relied for its support or stability on such
work which was defective;

(c) damage, loss or injury caused by or

arising from any of the Excepted Risks

Appendix the appendix to these Conditions

Articles of Agreement the Articles of Agreement duly executed by the

parties and to which these Conditions are
attached

Certificate of see Clause 24.6

Extension of Time

Certificate of Making see Clause 27.6

Good Defects

CIDB Standard Form of Contract for Building Works 2000 Edition 1

- Conditions of Contract
 Certificate of Non- see Clause 26.1
Completion

Certificate of Practical see Clause 20.2

Completion

Certificate of see Clause 44.4

Termination Cost

CIDB Lembaga Pembangunan Industri Pembinaan

Malaysia (Construction Industry Development
Board Malaysia)

Conditions all the provisions comprised in (in order of

priority):
(a) the Particular Conditions (if any);
(b) the Appendix;
(c) Option Modules specified in the
Appendix; and
(d) these Conditions.

Construction Plant all plant, tools, appliances or things of

whatever nature required for the construction,
completion of the Works or rectification of
Defects, but does not include Equipment,
materials or goods or other things intended to
form or forming part of the Works.

Contract or the several documents specified in Article 3 of

Contract Documents the Articles of Agreement agreed by the parties
as forming part of the Contract.

Contract Sum the sum set out in the Letter of Award and
Article 2 of the Articles of Agreement, and
shall be fixed subject only to adjustments
expressly provided for in the Conditions.

Contractor the person or firm or corporation whose Tender

has been accepted by the Employer and
includes the Contractor’s legal successors or
personal representatives and any person to
whom the rights of the Contractor have been
assigned or transferred with agreement in
writing of the Employer under Clause 40.1.

Contractor’s the person duly appointed pursuant to Clause

Representative 13.2.

Date of the date fixed pursuant to Clause 17.1

Commencement

Date of Practical the date stated in the Certificate of Practical

Completion Completion issued pursuant to Clause 20.2.

CIDB Standard Form of Contract for Building Works 2000 Edition 2

- Conditions of Contract
 Date of Tender the date of closing the Tender or the date of
the Contractor’s latest amendment or revision
of the Tender prior to the date of the Letter of
Award, whichever is the later

Day a calendar day according to the Gregorian

calendar and includes Public Holiday

Defects any part of the Works not executed properly or

completed in accordance with the Contract and
where the Contractor is responsible for the
design of any part of the Works, any fault in
such design. For the avoidance of doubt and
without limiting the generality of the
expression the term shall be taken to include
any item of Equipment, material, goods or
work incorporated or used in the Works which
does not conform to the relevant quality
standards or pass the tests prescribed in or to
be inferred from the Contract.

Defects Liability the Defects Liability Period set out in the

Period Appendix, calculated from:

(a) the Date of Practical Completion of the

Works certified by the Superintending
Officer in accordance with Clause 20.2;
or

(b) in the event of more than one Certificate

of Practical Completion having been
issued by the Superintending Officer
under Clause 20.2, the respective Dates
of Practical Completion so certified.

Drawings the drawings referred to in the Contract

including such drawings which have been
prepared by the Contractor and accepted by the
Superintending Officer pursuant to Clause 4.4
and such other drawings as may from time to
time be issued or accepted in writing by the
Superintending Officer.

Employer the person, or firm or corporation named as

such in the Articles of Agreement and includes
the Employer’s legal successors or personal
representatives and any person to whom the
rights of the Employer have been assigned or
transferred with agreement in writing of the
Contractor under Clause 40.2.

Equipment the machinery, apparatus and the like intended

to form or forming part of the Works.

CIDB Standard Form of Contract for Building Works 2000 Edition 3

- Conditions of Contract
 Excepted Risks Insofar as they occur in Malaysia and directly
affect the execution of the Works:

(a) war(whether war be declared or not),

hostilities, invasion, act of foreign
enemies;

(b) rebellion, revolution, insurrection or

military or usurped power or civil war;

(c) riot, commotion or disorder, unless

solely restricted to employees of the
Contractor or of his sub-contractors or
suppliers and arising in connection with
the execution of the Works;

(d) ionisation radiation or contamination by

radio activity 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;

(e) pressure waves caused by aircraft or

other aerial devices travelling at sonic or
supersonic speeds.

Final the document issued by the Superintending

Certificate Officer under sub-clause 42.8(d).

Government the Government of Malaysia

Interim Certificate any one of the certificates to which Clause 42.2

refer.

Letter of Award the formal acceptance by the Employer of the

Tender

Loss and Expense (a) the direct relevant costs of labour,

Equipment, materials, or goods actually
incurred on the Site in so far they would
not otherwise have been incurred and
which were not and should not have
been provided for by the Contractor;
and

(b) costs of an overhead nature actually and

necessarily incurred on the Site but in
either case only in so far they would not
otherwise have been incurred and which
were not and should not have been
provided for by the Contractor; and

CIDB Standard Form of Contract for Building Works 2000 Edition 4

- Conditions of Contract
 (c) the amount equivalent to the percentage
named in the Appendix of such cost
referred to in (a) and (b) above, such
amount shall be deemed to be inclusive
of any profits, head office or other
administrative overheads, financing
charges (including foreign exchange
losses) and any other costs, loss or
expense of whatsoever nature and
howsoever arising. This percentage shall
exclude interest payable pursuant to
sub-clause 42.9(b).

Month a calendar month according to the Gregorian

calendar

Option Module the Option Module appearing at the end of

these Conditions

Particular Conditions any Particular Conditions attached to these

Conditions or the Letter of Award

Payment Bond the security deposit to be provided by the

Employer to the Contractor in accordance with
the provisions of Option Module E (if
applicable)

Performance Security the security deposit to be provided by the

Deposit Contractor to the Employer in accordance with
the provisions of Option Module F (if
applicable).

Practical Completion completion of the Works including Test on

Completion under the Contract and where the
Works include Equipment which requires a
license for its operation, then completion so as
to render such Equipment eligible for issuance
of a licence in respect of its operation.
Provided however the existence of minor
outstanding works and defects, which do not
affect the functional use of the Works shall not
affect Practical Completion.

Prime Cost or P.C. a sum provided in the Contract for works or

Sum services to be executed by a Nominated Sub-
Contractor or for any Equipment, materials or
goods to be supplied by a Nominated Supplier
(in which case the provisions of Option
Module C shall apply).

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 Provisional Sum a sum provided in the Contract for work to be
executed or for the supply of any Equipment,
materials or goods which cannot be entirely
foreseen, defined or detailed at the date of
submission of Tender and such sum shall only
be expended or used upon instruction in
writing by the Superintending Officer who
may decide that the sum may be expended or
used in whole or in part in favour of any
person or not at all.

Public Holiday every Sunday or any Day which is a public

holiday by virtue of any enactment of the
Government or of a State Government in
which State the Site is then located

Rates for the Works those rates in the Schedule of Rates or the rates
and prices contained in the Bills of Quantities,
whichever is applicable, including any
modifications or additions to the same agreed
in writing by the Superintending Officer and
the Contractor.

Retention Monies the sum of the amount retained in accordance

with Clause 42.3

Retention Percentage the percentage stated in the Appendix under

reference to Clause 42.3.

Safety Requirements see Clause 14.1.

Schedule of Rates the schedule comprising Rates for the Works

(Schedule of Rates shall not apply if Option
Module A is applicable)

Schedule of Works the schedule comprising items of Works in

elemental form or according to type of works
including the prices which form the basis of
Contract Sum. (Schedule of Works shall not
apply if Option Module A is applicable)

Site the place and places provided or made

available by the Employer where the Works
are to be executed or carried out and any other
places as may be designated in the Contract as
forming part of the Site.

Specifications all specifications contained in the Contract

including modifications or additions to the
same as may from time to time be issued or
approved in writing by the Superintending
Officer.

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 State Government the Government of the State within Malaysia in
which the Site is located

Superintending Officer the person named in Article 4 for the purposes

of the Contract who shall be:

(a) an individual, or
(b) the principal of a sole proprietorship, or
(c) a partner of a partnership, or
(d) a director of a corporation;

provided that such individual, principal,

partner or director is a full member of a
professional body connected to the
construction industry

Superintending the Architect named in Article 5, Civil and

Officer’s Structural Engineer named in Article 6,
Representatives Mechanical and Electrical Engineer named in
Article 7, Quantity Surveyor named in Article
8, or Specialist Consultant named in the Article
9 or any other person, appointed from time to
time by the Employer or the Superintending
Officer under Clause 2.2.

Statutory see Clause 10.1

Requirements

Tender the Contractor’s priced offer to the Employer

for the design (to the extent required by the
Contract), execution and completion the
Works.

Temporary Works all the works of a temporary nature of every

kind (other than the Construction Plant)
required or provided for the execution of the
Works and the remedy of Defects.

Test on Completion such test which the Contractor is required by

the Contract to be carried out before the Works
have achieved Practical Completion.

Time for Completion time for the completion of the Works or any
section of the Works set out in the Letter of
Award and/or Appendix subject to such
extension or extensions of time (if any) as the
Contractor may be entitled under the Contract.

Variation any change in the original Contract intention as

deduced from the Contract Documents as a
whole describing or defining the Works to be
carried out and shall include but is not
restricted to:

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 (a) an increase and/or decrease in the
quantity of any part of the Works;
(b) an addition to or omission from the
Works (but not if the omitted work is to
be carried out by the Employer or by
another contractor),;
(c) a change in the character, quality and/or
nature of any part of the Works;
(d) a change in the levels, elevations, layout
and dimensions of any part of the Works;
(e) the demolition of or removal of any part
of the Works, Equipment, materials or
goods no longer desired by the Employer
or the Superintending Officer;
(f) a change in the Contractor’s Temporary
Work and/or method of working and/or
Construction Plant imposed by the
Employer or the Superintending Officer;
(g) the postponement of any part of the
Works desired by the Employer; and/or
(h) a requirement to complete the Works or
any part or section of the Works by a
date earlier than the relevant Time for
Completion desired by the Employer.

For the avoidance of doubt the term

“Variation” shall include changes which may
be intended to alter the use to which the Works
will be put, but shall exclude any instruction
which has arisen due to or is necessitated by or
intended to cure any default of or breach of
contract by the Contractor.

Week a period of 7 consecutive Days.

Works the Works described in the Contract which are

to be designed (to the extent required by the
Contract), executed and completed under the
Contract, including Variations.

1.2 Singular and Plural Singular and

Plural
Words importing the singular also include the plural and vice versa
where the context requires.

1.3 Headings and Marginal Notes Headings and

Marginal Notes
The headings and marginal notes in the Conditions shall not be deemed
to be part of the Conditions or be taken into consideration in the
interpretation or construction of the Conditions or of the Contract.

1.4 Persons, Firms or Corporation Persons, Firms or

Corporation
Words importing persons shall include firms and corporations.

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2 SUPERINTENDING OFFICER AND
SUPERINTENDING OFFICER’S
REPRESENTATIVE
2.1 Superintending Officer’s Duties and Authority Superintending
Officer’s Duties
(a) The duties and authority of the Superintending Officer shall be and Authority
those stated in or necessarily to be implied from the Contract.
Limitations (if any) on the authority of the Superintending Officer
are set out in the Appendix.

(b) Except where expressly stated in the Contract, the Superintending

Officer shall have no authority to relieve the Contractor of any of
his obligations under the Contract.

(c) The Superintending Officer shall act reasonably and timeously in

carrying out all or any of his duties under the Contract. .

2.2 Superintending Officer’s Representatives Superintending

Officer’s
(a) The Employer or Superintending Officer may from time to time Representatives
appoint such number of Superintending Officer’s Representatives
as he deems fit. . The Superintending Officer’s Representatives
shall be responsible to the Superintending Officer and shall carry
out such duties and exercise such authority as may be delegated
to him by the Superintending Officer under Clause 2.3.

(b) References to Superintending Officer in the Contract shall include

references to the Superintending Officer’s Representatives duly
appointed pursuant to this Clause 2.2.

2.3 Superintending Officer’s Authority to Delegate Superintending

Officer’s
(a) The Superintending Officer may from time to time delegate to the Authority to
Superintending Officer’s Representatives any of the duties or Delegate
authority vested in the Superintending Officer other than those
listed in the Appendix pursuant to Clause 2.1 and he may at any
time revoke such delegation.

(b) Any such delegation or revocation shall be in writing and shall

not take effect until a copy of such delegation or revocation has
been delivered to the Contractor. Any act done by the
Superintending Officer’s Representatives in accordance with such
delegation shall have the same effect as though it had been done
by the Superintending Officer.

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 (c) Provided that:

(i) any failure of the Superintending Officer’s

Representatives to disapprove any Equipment, material,
goods or work shall not prejudice the authority of the
Superintending Officer to disapprove such Equipment,
materials, goods or work and to give instructions for the
rectification of any such Equipment, materials, goods or
work; and

(ii) if the Contractor disputes any act of the Superintending

Officer’s Representatives he shall refer the matter to the
Superintending Officer who shall confirm, reverse or
vary (as the case may be) the act or decision of the
Superintending Officer’s Representatives; and

(iii) if the Contractor does not dispute any act of the

Superintending Officer’s Representatives within 7 Days
of such act, then the Contractor shall be deemed to have
accepted the same.

2.4 Appointment of Assistants Appointment of

Assistants
(a) The Superintending Officer or the Superintending Officer’s
Representatives may appoint such number of persons to assist the
Superintending Officer’s Representatives in carrying out such
duties and exercise such authority (if any) as he deems fit.

(b) The Contractor shall be notified in writing of the names, duties

and authority (if any) of such assistants. Such assistants shall
have no authority to issue any instructions to the Contractor
except for such instructions as may be necessary to enable them
to carry out their duties and to secure that the Equipment,
materials, goods or work are in accordance with the Contract.

3 SUPERINTENDING OFFICER’S INSTRUCTIONS

3.1 Compliance with the Superintending Officer’s Instructions Compliance with
the
(a) The Contractor shall forthwith comply with all instructions issued Superintending
to him by the Superintending Officer in regard to any matter in Officer’s
Instructions
respect of which the Superintending Officer is expressly
empowered by the Conditions to issue instructions, provided that:

(i) if by its nature and extent an instruction of the

Superintending Officer is reasonably capable of being
implemented within 14 Days, then the Contractor shall
implement to completion the said instruction within 14
Days;

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 (ii) if by its nature and extent an instruction of the
Superintending Officer is not capable of being
implemented within 14 Days, then the Contractor shall
take steps to commence the implementation of the said
instruction within 14 Days of receiving the said
instruction and shall thereafter proceed with the
implementation and complying with the instruction with
due diligence and expedition in order to complete the
same within such time as may be specified by the
Superintending Officer.

(b) If the Contractor, after receipt of an instruction from the

Superintending Officer, fails to comply with it within 14 Days (or
within such period as may be specified in the instruction pursuant
to sub-clause 3.1(a) (ii) above), then the Employer may employ
and pay other persons to do whatsoever may be necessary to give
effect to such instruction. All direct cost, loss, expense and
damage incurred or suffered in connection with such employment
may be deducted by the Employer from any payment due or to
become due to the Contractor under the Contract or may be
recoverable from the Contractor by the Employer as a debt.

3.2 Provisions Empowering Instructions Provisions

empowering
(a) Upon receipt of what purports to be an instruction issued to him instructions
by the Superintending Officer the Contractor may request the
Superintending Officer to specify in writing the provision of the
Conditions which empowers the issue of the said instruction.

(b) The Superintending Officer shall forthwith comply with any such
request, and if the Contractor shall thereafter comply with the
said instruction (neither party before such compliance having
given to the other a notice of his intention to refer the matter to
mediation under Clause 47.2 in order that it may decide whether
or not the provision specified by the Superintending Officer
empowers the issue of the said instruction), then the issue of the
same shall be deemed for all the purposes of the Contract to have
been empowered by the provisions of the Contract specified by
the Superintending Officer in answer to the Contractor’s request.

3.3 Instructions to be in Writing Instructions to be

in writing
(a) All instructions issued by the Superintending Officer shall be in
writing.

(b) Any instruction issued by the Superintending Officer otherwise

than in writing shall be of no effect.

(c) The provisions of this Clause 3.3 shall equally apply to

instructions given by the Superintending Officer’s
Representatives appointed pursuant to Clause 2.2 and assistants of
the Superintending Officer or the Superintending Officer’s
Representatives appointed pursuant to Clause 2.4.

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3.4 Instructions to Nominated Sub-Contractor or Nominated Supplier Instructions to
Nominated Sub-
All instructions issued by the Superintending Officer directly to a Contractor or
Nominated Sub-Contractor or Nominated Supplier as may be permitted Nominated
Supplier
in the relevant sub-contract (if Option Module C is applicable), shall be
copied to the Contractor and such instructions shall be deemed
instructions issued by the Superintending Officer to the Contractor.

3.5 Urgent Repairs Urgent Repairs

(a) Notwithstanding Clause 3.1, if by reason of any accident or

failure or other event occurring to or in connection with the
Works, either during the execution of the Works or during the
Defects Liability Period, any remedial or other work shall in the
opinion of the Superintending Officer be urgently necessary and
the Contractor is unable or unwilling at once to do such remedial
or other work, the Superintending Officer may instruct the
carrying out of such remedial or other work by a person other
than the Contractor.

(b) If the remedial or other work so instructed by the Superintending

Officer is work which in the opinion of the Superintending
Officer the Contractor was liable to do or for which he is
otherwise responsible under the Contract, the amount of any cost,
loss and expense or damage incurred in carrying out the same
shall be recoverable by the Employer from the Contractor.

4 CONTRACT DOCUMENTS
4.1 Contract Documents to be Mutually Explanatory Contract
Documents to be
The several documents forming the Contract are to be taken as mutually Mutually
explanatory of one another but in the event of any conflict or Explanatory
inconsistency between the documents forming the Contract, the priority
shall be as follows:

(a) The Articles of Agreement;

(b) The Letter of Award;

(c) The Conditions;

(d) The Addenda listed in Article 3 of the Articles of Agreement;

(e) The Drawings;

(f) The Specifications;

(g) The Bills of Quantities or Schedule of Works (whichever is

applicable);

(h) Other documents listed in Article 3 of the Articles of Agreement.

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4.2 Custody of Contract Documents Custody of
Contract
The original Contract Documents shall remain in the custody of the Documents
Employer and shall be produced as and when required by the Contractor.
Immediately upon the execution of the Contract, a duplicate of the
Contract Documents shall be furnished to the Contractor free of charge.

4.3 Supply of Drawings by Superintending Officer Supply of

Drawings by
(a) The Superintending Officer shall, in addition to the duplicate of Superintending
the Contract Documents referred in Clause 4.2, provide free of Officer
charge to the Contractor:

(i) two sets of the Drawings; and

(ii) two copies of the Specifications and unpriced Schedule of

Works or Bills of Quantities (whichever is applicable).

(b) The Contractor may obtain from the Superintending Officer at his
own cost any further copies of the said documents required by
him.

4.4 Supply of Drawings by the Contractor Supply of

Drawings by the
(a) Unless otherwise prescribed elsewhere in the Contract Contractor
Documents, the Contractor shall supply to the Superintending
Officer six (6) copies of all drawings (other than as-built
drawings under Clause 4.10) including shop drawings detailing
any work, specifications and other documents prepared and
submitted by the Contractor and accepted by the Superintending
Officer.

(b) The Contractor shall supply at the Employer's cost any further
copies of such drawings, specifications and other documents as
the Superintending Officer may request in writing.

4.5 Drawings to be Kept on Site Drawings to be

Kept on Site
One copy of the Drawings and Specification provided to the Contractor
under Clause 4.3 and one copy of the drawings and specifications
supplied by the Contractor under Clause 4.4, shall be kept on Site by the
Contractor and the same shall at all reasonable times be available for
inspection and use by the Superintending Officer and by any other
person authorised by the Superintending Officer in writing.

4.6 Need for Further Drawings Need for Further

Drawings
(a) The Contractor shall give adequate notice in writing to the
Superintending Officer:

(i) of any further drawing, specification or other information

which the Superintending Officer is required to provide
under the Contract;

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 (ii) of any drawing, specification, instruction or other
information which is required by any specific time,
whenever the planning or execution of the Works is
likely to be delayed or disrupted by its non-availability,
and whether or not the need for it is shown on any
programme accepted by the Superintending Officer under
Clause 5.

(b) The Superintending Officer shall on receipt of the notice comply

with its requirements, provided that it is given in sufficient time
for the Superintending Officer reasonably to prepare and issue the
drawings, specifications, or information required.

4.7 Supplementary Drawings and Instructions Supplementary

Drawings and
The Superintending Officer shall issue to the Contractor from time to Instructions
time such supplementary or revised drawings, specifications or
instructions as may in his opinion be necessary for the execution and
completion of the Works. The Contractor shall carry out and be bound
by the same.

4.8 Consequences of Delay in Supplying Further Drawings Consequences of

Delay in
If: Supplying
Further Drawings
(a) the Contractor has duly given the notice pursuant to Clause 4.6
and if the Superintending Officer shall not have complied with
any of its requirements; or

(b) the Superintending Officer has not issued any supplementary or

revised drawing, specifications, or instruction as required by
Clause 4.7,

and if the progress or completion of the Works or any part of the Works
has been materially affected by such failure on the part of the
Superintending Officer then the Superintending Officer shall, subject to
Clauses 32 and 42, certify any Loss and Expense which the Contractor
has incurred and, subject to Clause 24, grant the Contractor an extension
of time.

4.9 Confidentiality and Limitation of Use of Documents Confidentiality

and Limitation of
(a) The Contractor shall treat the Contract and everything contained Use of Documents
in the Contract as private and confidential. None of the Contract
Documents mentioned in Clause 4 shall be used by the Contractor
for any purpose other than for the Contract. In particular, the
Contractor shall not divulge (unless otherwise required at law)
any information, drawing or photograph concerning the Works
and shall not use the Works or the Site for the purpose of
advertisement except with the written consent of the
Superintending Officer and subject to such conditions as he may
prescribe.

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 (b) Neither the Employer nor the Superintending Officer, nor his
authorised representatives shall divulge or use, except for the
purpose of the Contract, any of the rates in the Schedule of Rates
or Bills of Quantities (whichever is applicable).

4.10 As-built Drawings As-built Drawings

Unless otherwise prescribed elsewhere in the Contract Documents the

Contractor shall supply to the Employer without additional charge 6
copies of:

(a) such drawings describing the Works or any section of the Works
as-built not later than 3 months from the Date of Practical
Completion of the Works (or the Date of Practical Completion in
respect of the relevant section of the Works, in the case of
completion in sections); and

(b) manuals concerning the operations and maintenance of the Works

or any section of the Works, including any installation comprised
in the Works or section of the Works not later than the Date of
Practical Completion of the Works (or the Date of Practical
Completion in respect of the relevant section of the Works, in the
case of completion in sections).

5 WORKS PROGRAMME AND METHOD

STATEMENT
5.1 Submission of Works Programme and Method Statement Submission of
Programme and
Following the Letter of Award, and without prejudice to any requirement Method Statement
to do so earlier in his tender or the other Contract Documents, the
Contractor shall, not later than Date of Commencement submit for the
approval by the Superintending Officer:

(a) a works programme related to the Time for Completion clearly

identifying the sequence, logic and critical path in which he
proposes to carry out the Works including the various work
activities and milestones to be achieved; and

(b) a method statement describing the arrangement, sequence and

method of construction of the Works including Temporary
Works.

5.2 Works Programme and Method Statement not Part of Contract Works
Document Programme and
Method Statement
(a) The works programme and method statement shall not constitute not Part of
Contract
part of the Contract Documents.
Document
(b) The submission to and approval by the Superintending Office of
such works programme and method statement shall not relieve
the Contractor of his obligations under the Contract

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5.3 Approval Approval

(a) Approval of the works programme and the method statement by

the Superintending Officer shall signify his agreement with the
proposed order or sequence of working in the works programme
and method of construction in the method statement.

(b) The approved works programme or method statement may be

taken into account in any dispute for determining a reasonable
order or sequence for supplying any outstanding information or
details to the Contractor, or for giving possession of the Site by
the Employer, but shall not otherwise change the contractual
obligations of either party in relation to the Time for Completion,
or as to a reasonable time for giving or receiving further
information, or for giving possession of the Site.

(c) In the event of the Superintending Officer's failure to respond

within 14 Days from the date of receipt of the Contractor's
submission then the works programme and/or method statement
shall be deemed to have been approved by the Superintending
Officer.

5.4 Disapproval Disapproval

In the event the works programme and/or method statement is

disapproved by the Superintending Officer then the Contractor shall
make such further submissions as may be required until approval is
obtained.

5.5 Start of Work Without Approval Start of Work

Without Approval
The Contractor may commence execution of the Works pending
approval of the works programme or method statement by the
Superintending Officer. However the grounds of any disapproval may
be taken into account in determining any dispute as to a reasonable
sequence or order for giving possession of the Site or for supplying
supplementary drawings or details or information.

5.6 Modification or Revision to Works Programme and/or Method Modification or

Statement Revision to Works
Programme
(a) The Contractor shall from time to time during the progress of the and/or Method
Statement
Works make modification or revision to the works programme
and/or method statement to take into account any changed
circumstances or event affecting the progress and/or the execution
of the Works.

(b) Such modified or revised works programme and/or method

statement shall be subject to approval by the Superintending
Officer pursuant to provisions of Clause 5.3.

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6 GENERAL OBLIGATIONS OF THE EMPLOYER
6.1 Employer’s General Responsibilities Employer’s
General
(a) The Employer shall give the Contractor right of access to and Responsibilities
possession of the Site in accordance with Clause 17.2.

(b) Before the Date of Commencement, the Employer shall obtain

development or planning approvals, building plan and such other
necessary approvals from the relevant authorities with regards to
the Works.

(c) The Employer shall pay the Contractor in accordance with Clause
42.

(d) The Employer shall not obstruct or interfere with the performance
of the Contract by the Contractor, except where expressly
provided in the Contract.

(e) The Employer shall not interfere with or influence or obstruct the
issue of any certificate by the Superintending Officer under the
Contract.

(f) In the event of the death of the Superintending Officer or his

ceasing to be the Superintending Officer for the purpose of the
Contract, the Employer shall within 30 Days nominate and
appoint such other person as a succeeding Superintending Officer
for that purpose.

7 GENERAL OBLIGATIONS OF THE

CONTRACTOR
7.1 Contractor’s General Responsibilities Contractor’s
General
(a) The Contractor shall, with due care and diligence, design (to the Responsibilities
extent required by the Contract), execute and complete the Works
and remedy Defects to the satisfaction of the Superintending
Officer in accordance with the provisions of the Contract.

(b) The Contractor shall provide all supervision, labour, Construction

Plant, Equipment, materials, goods and all other things, whether
of a temporary or permanent nature required in and for such
design (to the extent required by the Contract), execution and
completion of the Works and remedying of Defects.

7.2 Site Operations and Methods of Construction Site Operations

and Methods of
(a) The Contractor shall take full responsibility for the adequacy, Construction
stability and safety of all operations and methods of construction.
Provided that the Contractor shall not be responsible (except
otherwise stated in the Contract or as may be otherwise agreed in

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 writing between the Employer and the Contractor) for the design
of the Works or for the design of any Temporary Works not
prepared by the Contractor or by his sub-contractors or suppliers.

(b) Where the Contract expressly provides for part of the Works to be
designed by the Contractor (in which case Option Module D
applies), he shall be fully responsible for the design of that part of
the Works, notwithstanding any approval by the Superintending
Officer.

7.3 Contractor’s Responsibility for Sub-contractors Contractor’s

Responsibility for
Unless the Contract otherwise provides, the Contractor shall make good Sub-contractors
any damage, loss or injury suffered by the Employer by reason of any
breach of contract, repudiation, default or failure on the part of his sub-
contractors or suppliers whether nominated or privately engaged by the
Contractor, and shall indemnify the Employer against all and any loss,
expense, costs, damages, liability or claim arising from such breach of
contract, repudiation, default or failure.

7.4 Responsibility for Identifying the Discrepancy Responsibility for

Identifying the
(a) If the Contractor shall find any ambiguity, discrepancy, conflict, Discrepancy
inconsistency, error or omission (hereinafter referred to as the
“Discrepancy”) in or between any of the Contract Documents he
shall forthwith notify the Superintending Officer of the same.

(b) The Superintending Officer shall then explain and adjust the
Discrepancy and issue to the Contractor an instruction so as to
resolve the Discrepancy.

(c) If an instruction issued by the Superintending Officer to resolve

the Discrepancy results in addition to and/or reduction from the
Contract Sum, such addition and/or reduction shall be deemed a
Variation.

7.5 Sufficiency of Contract Sum Sufficiency of

Contract Sum
The Contractor shall be deemed to have satisfied himself that the
Contract Sum covers all his obligations under the Contract and all
matters and things necessary for the proper design (to the extent required
by the Contract), execution and completion of the Works and the
remedying of Defects.

8 NOTICES
8.1 Serving of Notices Serving of Notices

(a) Unless otherwise stipulated elsewhere in the Contract, notices to

be given under the terms of the Contract shall be in writing and
shall be deemed to have been served by either party upon the
other if it shall have been sent to the address of such party as set
out in the Articles of Agreement:

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 (i) by hand delivery or courier and an acknowledgement of
receipt obtained; or

(ii) by post in which case it shall be deemed to have been

served 7 Days after posting.

(b) Either party may change the address set out in the Articles of
Agreement by giving 14-Day notice to the other party and the
Superintending Officer and in the case of the Superintending
Officer by giving 14-Day notice to both parties.

9 PATENT RIGHTS, TRADEMARKS, ROYALTIES

9.1 Patent Rights Patent Rights

(a) The Contractor shall defend and indemnify the Employer from
and against all claims, costs, damages, charges and proceedings
whatsoever for or on account of infringement of any patent rights,
design trademarks or name or other protected rights in respect of
any Construction Plant, Equipment, materials, goods or design
(submitted by the Contractor pursuant to his obligations under the
Contract) used for or in connection with or for incorporation in
the Works, except where such infringement results from
compliance with an instruction, the design or Specifications
provided by the Superintending Officer.

(b) Where such infringement results from compliance with an

instruction, the design or Specifications provided by the
Superintending Officer, any royalties, damages or other monies
which the Contractor may be liable to pay to the persons entitled
to such patent rights shall be reimbursed by the Employer.

9.2 Royalties Royalties

Except where otherwise provided for in the Contract, the Contractor

shall pay all tonnage, royalties, rent and any other payments or
compensation whatsoever for getting stone, sand, gravel, clay or other
materials required for the Works.

10 COMPLIANCE WITH STATUTES,

REGULATIONS
10.1 Statutory Requirements Statutory
Requirements
(a) The Contractor shall comply in all respects (including the giving
of all notices and the paying of all fees required) with any law,
regulation or by-law, or any order or directive issued by any
public authority or public service company (hereinafter referred
to as “Statutory Requirements”), relating to the Works or, in the
case of a public authority or public service company, with whose
systems the same are or will be connected. Such compliance shall

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 include the payment of levies imposed by CIDB. The Contractor
shall keep the Employer indemnified against all penalties and
liability of every kind for breach of any such Statutory
Requirements.

(b) Provided always that the Employer shall be responsible for

obtaining any planning, zoning or other similar permission
required for the Works to proceed and for any capital contribution
and security deposit to any such public authority or public service
company for the permanent connection to their systems.

(c) The Employer shall be liable for any default or delay by any
public authority or public service company in the enforcement or
implementation of the Statutory Requirements provided always
that the Contractor shall have fulfilled his contractual obligations
and taken all actions for compliance with the Statutory
Requirements.

10.2 Variation arising from Compliance Variation arising

from Compliance
(a) If the Contractor is required to comply with Clause 10.1and such
compliance involves a Variation, he shall notify the
Superintending Officer of the Variation required with reasons for
such Variation. The Superintending Officer shall issue such
instructions as may be necessary for such compliance. If the
Superintending Officer does not issue any instruction within 7
Days from the date of the receipt of the said notification, the
Contractor shall proceed with the works required to conform to
the Statutory Requirements.

(b) Any Variation necessitated under this Clause 10 shall be deemed

a Variation unless it pertains to matters within the obligations of
the Contractor under the Contract (including where applicable,
any deficiency or fault in the design of any part of the Works for
which the Contractor is responsible under the Contract) which
could have been reasonably foreseen by an experienced
contractor at the Date of the Tender.

10.3 Change in Statutory Requirements Change in

Statutory
If after the Date of Tender there is any change in the Statutory Requirements
Requirements relating to the Works or, in the case of a public authority
or public service company, with whose systems the same are or will be
connected which causes additional or reduced cost to the Contractor, in
the design (to the extent required by the Contract) or execution of the
Works, beyond that which was reasonably contemplated by an
experienced contractor, such additional or reduced cost shall be certified
by the Superintending Officer and added to or deducted from the
Contract Sum with a copy of the certificate given to each of the parties.

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11 ENVIRONMENTAL MATTERS
11.1 Compliance with Environmental Quality Act 1974 Compliance with
Environmental
The Contractor shall comply with all relevant laws relating the Quality Act 1974
protection and preservation of the environment, in particular the
Environmental Quality Act 1974 including any subsequent amendments
to or re-enactment of the said Act. The Contractor shall give due
consideration to the preservation and social implications of water and air
quality, soil, flora and fauna (if any) within the Site during the execution
of the Works. All measures taken by the Contractor in compliance with
this Clause 11 shall be deemed to be included in the Contract Sum.

12 SETTING OUT
12.1 Accurate Setting Out Accurate Setting
Out
(a) The Superintending Officer shall be responsible to provide the
original reference points, lines and levels necessary for the
Contractor to set out the Works at ground level.

(b) The Contractor shall be entitled to rely on the original reference

points, lines and levels given by the Superintending Officer for
setting out but shall be responsible for:

(i) the accurate setting out of the Works;

(ii) the correctness of the position, levels, dimensions and

alignment of all parts of the Works; and

(iii) the provision of all necessary instruments, equipment,

apparatus and labour in connection with the setting out.

12.2 Errors in Setting Out Errors in Setting

Out
(a) If at any time during the execution of the Works, any error
appears in the position, levels, dimensions or alignment of any
part of the Works, the Contractor shall rectify such error to the
satisfaction of the Superintending Officer. The time and cost
implications of such rectification shall be borne by:

(i) the Employer if such rectification is due to the reference

points, lines and levels provided by the Superintending
Officer pursuant to sub-clause 12.1(a); or

(ii) the Contractor if such rectification is due to errors in

setting out referred to in sub-clause 12.1(b).

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 (b) Notwithstanding sub-clause 12.2(a)(ii), if the Contractor is
responsible for the error in setting out but in the opinion of the
Superintending Officer it will be impracticable or inconvenient to
the Employer to have the Contractor to rectify, the
Superintending Officer may give an instruction that such error be
not remedied, in which case the provisions of Clause 27.4 shall
apply.

13 SITE ADMINISTRATION
13.1 Days and Hours of Working Days and Hours
of Working
(a) Unless otherwise stated elsewhere in the Contract, no work shall
be carried out during the night or on Public Holidays without the
written permission of the Superintending Officer except when
such work is rendered unavoidable or necessary for the saving of
life or property or for the safety of the Works, in which case the
Contractor shall inform the Superintending Officer at the earliest
possible opportunity of the same.

(b) When any such written permission is granted by the

Superintending Officer pursuant to sub-clause 13.1(a), it shall be
the Contractor’s responsibility to comply with all the Statutory
Requirements and shall bear all costs in compliance with the
same.

(c) For the purpose of this Clause 13.1, the term “night” shall mean
the period from 7.00 p.m. to 7.00 a.m.

13.2 Contractor’s Representative Contractor’s

Representative
(a) The Contractor shall appoint a competent person who shall be
authorised to represent him (hereinafter referred to as the
“Contractor’s Representative”) and shall notify the Employer and
the Superintending Officer in writing the name of such person.

(b) The Contractor’s Representative shall be constantly on the Site

during normal working hours and shall give his whole time to the
supervision of the Works including the remedying of Defects
after the Date of Practical Completion.

(c) Any instructions or notices given to the Contractor’s

Representative by the Superintending Officer shall be deemed to
have been given to the Contractor.

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 (d) The Superintending Officer may object to the appointment or
request the removal of any person appointed or employed as the
Contractor’s Representative, provided always that the
Superintending Officer shall not issue such notice of objection or
removal unreasonably or vexatiously. Upon receipt from the
Superintending Officer of a notice of objection or removal in
writing, the Contractor shall forthwith remove him from the Site
and shall not thereafter employ him again on the Site in any
capacity and shall replace him by another Contractor’s
Representative approved by the Superintending Officer.

13.3 Removal of Workmen and Other Personnel Removal of

Workmen and
(a) The Contractor shall employ in and about the execution of the Other Personnel
Works only such persons as are of good character, careful, skilled
and experienced in their respective vocations and trades.

(b) The Superintending Officer shall be at liberty to object to and

require the Contractor to remove immediately from the Site any
person employed by the Contractor in or about the execution of
the Works who in the opinion of the Superintending Officer
misconducts himself or is incompetent or negligent in the proper
performance of his duties and whose continued presence is
undesirable or unacceptable. Such person shall not again be
employed upon the Works without the prior written permission of
the Superintending Officer.

13.4 Access for Superintending Officer Access for

Superintending
(a) The Superintending Officer and any person authorised by the Officer
Superintending Officer shall at all reasonable times have access
to the Works and to the factories, workshops or other places of
the Contractor or of any sub-contractor or supplier where any
Equipment, materials, goods or work are being manufactured,
fabricated, assembled, prepared or stored for the Contract.

(b) Where any such Equipment, materials, goods or work are being
manufactured, fabricated, assembled, prepared or stored in the
factories, workshops or other places of a sub-contractor or
supplier, the Contractor shall by a term in the sub-contract secure
a similar right of access to those factories, workshops or other
places for the Superintending Officer and any person authorised
by the Superintending Officer, and shall take reasonable steps
required of him by the Superintending Officer to enforce or assist
in enforcing such right.

14 SAFETY AT THE SITE

14.1 Compliance with Safety Requirements Compliance with
Safety
The Contractor shall comply and shall secure compliance by his Requirements
personnel and workmen and by his sub-contractors at all times during
the execution of the Works with all of the following:

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 (a) Factories and Machinery Act, 1967;

(b) Occupational Safety and Health Act, 1994;

(c) All other relevant safety-at-work requirements imposed by law

including any subsequent amendments to or re-enactment of the
said law, and

(d) Any directive or order by the relevant authorities and/or the

Superintending Officer relating safety requirements;

hereinafter collectively referred to as the "Safety Requirements".

14.2 Submission of Safety Programme Submission of

Safety
(a) Within 14 Days of the Letter of Award, the Contractor shall Programme
submit to the Superintending Officer a safety programme to
ensure that all construction activities required for the execution of
the Works are carried out in a safe manner and in compliance
with the Safety Requirements.

(b) The safety programme shall be subject to the approval of the

Superintending Officer. The submission to and approval by the
Superintending Officer of the safety programme shall not relieve
the Contractor of any of his obligations under the Contract.

14.3 Safety Officer and Personnel Safety Officer and

Personnel
(a) The Contractor shall appoint a suitably qualified and experienced
person as safety officer who shall be responsible for compliance
with Safety Requirements and all safety matters relating to the
Works. The Contractor shall, from time to time, provide such
other personnel and resources as may be required to ensure the
effective implementation of the safety programme on Site.

(b) The Contractor shall conduct training programmes for all

workmen including workmen of his sub-contractors for
compliance with the Safety Requirements.

14.4 Safety Measures Safety Measures

(a) The Contractor shall ensure that the Construction Plant together
with all other tools and equipment, Temporary Works and other
items used in the execution of the Works are in a safe, sound and
good condition and capable of performing the functions for which
they are intended.

(b) Without limiting his liability under the Contract, the Contractor
shall provide at his own expense all workmen on Site with the
necessary safety equipment including but not limited to safety
boots, safety helmets and protective clothing.

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15 QUALITY IN CONSTRUCTION
15.1 Equipment, Materials, Goods and Workmanship Equipment,
Materials, Goods
All Equipment, materials, goods and workmanship shall be: and
Workmanship
(a) the respective kinds and quality described in the Contract or
required by the Superintending Officer in accordance with the
provisions of the Contract; and

(b) subjected from time to time to such tests at their place of

manufacture, fabrication or preparation, or on the Site or at such
other places described in the Contract or required by the
Superintending Officer in accordance with the provisions of the
Contract.

15.2 Quality Assurance and Quality Control Quality Assurance

and Quality
(a) Within 14 Days of the Letter of Award, the Contractor shall Control
submit to the Superintending Officer a quality plan to ensure that
the Works are designed (to the extent required by the Contract),
executed and completed in accordance with the Contract.

(b) The quality plan shall be subject to the approval of the

Superintending Officer. The submission to and approval by the
Superintending Officer of the quality plan shall not relieve the
Contractor of any of his obligations under the Contract.

15.3 Supply of Samples Supply of Samples

The Contractor shall supply at his own cost samples of materials or

goods, before incorporation into the Works for selection or testing as
described in the Contract or required by the Superintending Officer in
accordance with the provisions of the Contract. Unless otherwise
provided in the Contract, all samples shall be supplied or prepared by the
Contractor at his own cost.

15.4 Cost of Test Cost of Test

(a) The cost of carrying out any test shall be borne by the Contractor
if such test is:

(i) intended by or provided for in the Contract, or

(ii) additional tests required by the Superintending Officer in

consequence of some prior failure or breach of contract
or other default of the Contractor

(b) The cost of carrying out any test shall be borne by the Employer
if such test is:

(i) not so intended by or provided for in the Contract, or

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 (ii) though so intended by or provided for in the Contract but
required by the Superintending Officer to be carried out
at any place other than the Site or the place of
manufacture, fabrication or preparation of the Equipment,
materials or goods tested.

Provided always if such test shows the Equipment, materials,

goods or workmanship are not in accordance with the Contract or
do not meet the requirements of the Superintending Officer in
accordance with the provisions of the Contract then the cost of
such test shall be borne by the Contractor.

(c) Where the cost of tests is to be borne by the Employer pursuant to

sub-clause 15.4(b), the carrying out of such test shall be deemed a
Variation.

15.5 Examination and Measurement of Works before Covering Up Examination and

Measurement of
(a) No part of the Works shall be covered up or put out of view Works before
without the approval of the Superintending Officer and the Covering Up
Contractor shall afford full opportunity for the Superintending
Officer to examine and measure such part of the Works which is
about to be covered up or put out of view.

(b) The Contractor shall give due notice to the Superintending

Officer whenever any part of the Works is ready or about to be
ready for examination and the Superintending Officer shall
without unreasonable delay, unless he considers it unnecessary
and advises the Contractor in writing accordingly, attend such
examination and measurement of such part of the Works.

(c) If the Contractor fails and/or neglects to comply with the

provisions of Clause 15.5:

(i) the Superintending Officer may require the Contractor to

uncover or make openings in or through any part or parts
of the Works or to do all such things as are necessary for
the Superintending Officer to inspect such part or parts of
the Works as constructed; and

(ii) the cost of such uncovering or making openings and

subsequent reinstating and making good of the same shall
be borne by the Contractor whether or not such part or
parts uncovered are found to be executed in accordance
with the Contract; and

(iii) the Contractor shall not be entitled to any extension of

time for any delay caused by such failure or neglect; and

(iv) the additional cost of any measures or requirements

carried out by or directed by the Superintending Officer
shall be borne by the Contractor.

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15.6 Uncovering and Making Openings Uncovering and
Making Openings
(a) The Contractor shall uncover any part of the Works or make
openings in or through the same as the Superintending Officer
may from time to time instruct and shall reinstate and make good
such part of the Works to the satisfaction of the Superintending
Officer.

(b) If any such part of the Works has been covered up or put out of
view after compliance with the requirements of sub-clauses
15.5(a) and 15.5(b) and is found to be executed in accordance
with the Contract then, such work carried out by the Contractor
shall be deemed a Variation.

15.7 Defects during the Progress of the Works Defects during the
Progress of the
(a) If the Superintending Officer finds Defects during the progress of Works
the Works, notwithstanding any previous test or interim payment
for the Works or part of the Works, he may instruct the
Contractor to do any or all of the following:

(i) to demolish and reconstruct any work to meet the

requirements of the Contract.

(ii) to substitute such defective Equipment, materials or

goods with proper and suitable replacements of the same.

(iii) to remove from or not to bring to the Site any Equipment,

materials or goods which in the opinion of the
Superintending Officer do not meet the requirements of
the Contract and to replace such Equipment, materials or
goods with those which meet the requirements of the
Contract.

(b) The Superintending Officer’s instruction may specify the time

within which the Contractor is to comply with the instruction. If
the Contractor defaults in carrying out such instruction within the
time specified by the Superintending Officer, the Employer shall
be entitled to employ and pay other persons to carry out the same
and the amount of any loss, expense, costs or damages suffered or
incurred by the Employer shall be recoverable from the
Contractor and may be deducted by the Employer from any
payment due or to become due to the Contractor.

(c) Notwithstanding sub-clause 15.7(a), if the Defects which the

Contractor would otherwise have been liable to rectify at his own
cost is such that in the opinion of the Superintending Officer it
will be impracticable or inconvenient to the Employer to have the
Contractor to rectify, the Superintending Officer may give an
instruction that the Defects be not remedied in which case the
provisions of Clause 27.4 shall apply.

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16 LABOUR
16.1 Engagement of Workmen and Labour Engagement of
Workmen and
The Contractor shall, unless otherwise provided in the Contract, make Labour
his own arrangements for the engagement of all workmen and labour,
local or other, and for their remuneration, housing, welfare and transport.
In case foreign workmen or labour are engaged the Contractor shall be
responsible to obtain their work permits in compliance with relevant
laws and regulations.

16.2 Returns of Labour Returns of

Labour
The Contractor shall, if required by the Superintending Officer, deliver
to the Superintending Officer a detailed return in such form and at such
intervals as the Superintending Officer may prescribe, showing the
numbers of the several classes of workmen or labour from time to time
employed by the Contractor on the Site.

17 COMMENCEMENT OF WORKS AND

POSSESSION OF SITE
17.1 Date of Commencement Date of
Commencement
(a) The Contractor shall, subject to the fulfilment of the conditions
precedent stated in sub-clause 17.1(b), commence the Works, or
such sections of the Works, on the Date of Commencement, that
is:

(i) on the date specified in the Letter of Award or the

Appendix; or

(ii) where no date is specified in the Letter of Award or the

Appendix, on the date specified in an instruction for
commencement (which, unless otherwise agreed, shall
not be less than 14 Days after the date of the instruction)
from the Superintending Officer.

Thereafter the Contractor shall proceed with due diligence and

expedition and without delay in accordance with the Contract and
by reference to the works programme and/or method statement or
any revised or modified works programme and/or method
statement accepted by the Superintending Officer pursuant to
Clause 5. The Time for Completion shall run from the Date of
Commencement which is fixed pursuant to this Clause 17.1.

(b) The conditions precedent to the commencement of the Works, or

such sections of the Works are:

(i) the submission of the Performance Security Deposit in

accordance with Option Module F (if applicable); and

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 (ii) the deposition of the insurance policies as required by
Clause 36, 37 and Clause 38A(if applicable). Provided
that for the purposes of this sub-clause 17.1(b), and no
other, the submission of the original cover notes of the
said insurance policies and the receipts of premium paid
to the Superintending Officer is sufficient discharge of
the Contractor’s obligation under this sub-clause 17.1(b);
and

(iii) the submission of the Code Numbers and Social Security

Numbers of all the workmen registered under SOCSO
pursuant to Clause 37.1.

17.2 Possession of Site Possession of Site

(a) Unless the Contract otherwise provides, the Contractor shall be

entitled on or before the Date of Commencement access to and
possession of the Site or such part of the Site to enable the
Contractor to commence the Works. The Contractor’s access to
and possession of the Site or such part of the Site shall not be
exclusive but shall be subject to the Employer’s rights under
Clause 18 in respect of other contractors.

(b) The requirement for possession of the Site and Date of

Commencement to be given for sections of the Works and any
other restrictions upon the possession of Site and commencement
of any section of the Works shall be as stated in the Appendix or
in the Contract Documents.

17.3 No Date of Commencement or Failure to Give Possession Failure to Give

Possession
(a) Where no Date of Commencement is specified in accordance with
sub-clause 17.1 (a)(i) or (ii) then the Contractor shall notify the
Superintending Officer requiring the Date of Commencement to
be stipulated. If the Superintending Officer:

(i) fails to stipulate such date within the period specified in

respect of Clause 19.2 in the Appendix as calculated from
the date of the Contractor's notification (hereinafter
referred to as the "Suspension Period"); or

(ii) stipulates a date which is after the expiry of the

Suspension Period;

then the Contractor shall be entitled to deem the Works as having

been suspended pursuant to the Superintending Officer's
instruction under Clause 19.1.

(b) Where there is delay in the giving of possession of the Site or any
part of the Site as provided in Clause 17.2 then, the
Superintending Officer shall, subject to Clauses 32 and 42, certify
any Loss and Expense which the Contractor had incurred by
reason of such delay and, subject to Clause 24, grant the
Contractor an extension of time.

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 (c) Where the delay in giving possession of Site is in excess of the
Suspension Period specified in respect of Clause 19.2 in the
Appendix then the Contractor shall be entitled to deem the Works
as having been suspended pursuant to the Superintending
Officer's instruction under Clause 19.1.

17.4 Rights of Way or Access Rights of Way or

Access
(a) The Employer shall provide the Contractor with the main right of
way or access to the Site.

(b) The Contractor shall at his own expense be responsible for

obtaining any other right of way or access (including rights of
easement) that may be required by him for the purposes of
execution and completion of the Works.

(c) The Contractor shall also provide at his own cost and expense any
additional accommodation, land or facilities outside the Site
required by him for the purpose of the Works.

18 OTHER CONTRACTORS
18.1 Employer’s Right to Employ Other Contractors Employer’s Right
to Employ Other
(a) The Employer reserves the right to employ any person or Contractors
contractor to carry out on the Site work which does not form part
of the Contract, whether or not information in respect of such
work is provided in the Contract. Every person or contractor so
employed shall be deemed to be a person or contractor for whom
the Employer is responsible for and not to be a sub-contractor.

(b) The Contractor shall permit the execution of any work by such
person or contractor employed by the Employer.

18.2 Inspection of Work Done by Other Contractors Inspection of

Work Done by
(a) If any part of the Works depends on the prior proper execution of Other
or results from the work of any other persons or contractors Contractors
employed by the Employer, the Contractor shall inspect and
promptly report in writing to the Superintending Officer any
apparent discrepancies or Defects in such work that may
materially and adversely affect his execution of the Works. The
Superintending Officer shall then issue instructions to the
Contractor to resolve the discrepancies or Defects.

(b) Failure of the Contractor to report to the Superintending Officer

of any apparent discrepancies or Defects in such work shall
constitute acceptance by the Contractor of the work of such
persons or contractors as fit and proper for the purposes of
proceeding with the execution of the Works.

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19 SUSPENSION
19.1 Suspension of Work Suspension of
Work
(a) The Contractor shall on an instruction of the Superintending
Officer, suspend the execution of the Works or any part of the
Works for such time and in such manner as the Superintending
Officer may consider necessary and shall during such
suspension, properly protect and secure the Works or such part
of the Works so far as is necessary or in accordance with the
instruction of the Superintending Officer.

(b) Subject to Clauses 19.2, 32 and 42, the Superintending Officer

shall certify any Loss and Expense which the Contractor had
incurred in giving effect to the instruction and, subject to Clause
24, may grant the Contractor an extension of time unless such
instruction, Loss and Expense or extension is:

(i) otherwise provided for in the Contract; or

(ii) necessary by reason of some default or breach of contract

of the Contractor or is caused by an event which was or
would have been the Contractor’s responsibility to have
overcome; or

(iii) necessary for the proper execution of the Works or for the
safety of the Works or any part of the Works.

19.2 Prolonged Suspension Prolonged

Suspension
If the carrying out of the whole or any part of the Works is suspended
due to:

(a) force majeure; or

(b) one or more of the Excepted Risks; or

(c) the Contractor not having received from the Superintending

Officer within a reasonable time necessary Drawings, instructions
or other information in regard to the Works for which notice has
been given by the Contractor in accordance with Clause 4.6; or

(d) An instruction from the Superintending Officer to resolve a

Discrepancy in or between any of the Contract Documents
pursuant to Clause 7.4; or

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 (e) ordering of test by the Superintending Officer which is not
intended by or provided for in the Contract pursuant to Clause
15.4 and the uncovering or making openings for inspection of any
work which is not intended by or provided for in the Contract
pursuant to Clause15.6, unless the test or inspection shows that
the Works, Equipment, materials, goods or workmanship were
not in accordance with the provisions of the Contract; or

(f) failure of the Employer to give possession of the Site or any part
of the Site to the Contractor as required by Clause 17.2; or

(g) acts or omissions of other persons or contractors employed by the

Employer in executing work not forming part of the Contract; or

(h) subject to Sub-Clause 19.1(b), an instruction by the

Superintending Officer to suspend any work; or

(i) damage, loss or injury to the Works or part of the Works caused
by any one or more of the risks covered by the insurance policies
referred to in Clause 38A, 38B or 38C, whichever is applicable;
or

(j) the issue of an instruction by the Superintending Officer in

respect of antiquities and fossils pursuant to Clause 39;

(hereinafter individually referred to as the “Specified Suspension

Event”) for more than the Suspension Period specified in the Appendix,
the Contractor may serve a notice to the Superintending Officer for
permission to recommence the suspended Works or part of the Works
within 14 Days of receipt by the Superintending Officer of the notice.

19.3 Effects of Prolonged Suspension Effects of

Prolonged
If the Specified Suspension Event continues or permission to proceed Suspension
with the Works is not granted by the Superintending Officer pursuant to
Clause 19.2 on the expiry of the said 14-Day period then, the Contractor
may:

(a) in the case where such suspension affects the whole or

substantially the whole of the Works, be entitled to determine his
own employment in accordance with Clause 45.1;

(b) in the case where such suspension affects only a part of the
Works, elect to treat such suspended part as an omission under
Clause 28.

20 TIME FOR COMPLETION

20.1 Contractor to Complete on Time Contractor to
Complete on Time
Subject to Clause 24, the Contractor shall complete the Works within the
Time or Times for Completion stated in (in order of priority):

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 (a) the Letter of Award; or

(b) the Appendix; or

(c) elsewhere in the Contract Documents;

as the case may be.

20.2 Certificate of Practical Completion Certificate of

Practical
(a) When the Contractor considers that the Works have achieved Completion
completion sufficient to enable the successful completion of the
Test on Completion he may notify the Superintending Officer in
writing to that effect.

(b) Within 14 Days of receipt of such notice, the Superintending

Officer shall carry out an inspection of the Works and the
carrying out the Test on Completion prescribed by the Contract.
Pursuant to such inspection and test the Superintending Officer
shall do either one of the following:

(i) Issue to the Contractor a Certificate of Practical

Completion if in his opinion the whole of the Works have
achieved Practical Completion and have satisfactorily
passed any Test on Completion prescribed by the
Contract, subject to the Contractor giving a written
undertaking to complete any outstanding work during the
Defects Liability Period. The Superintending Officer
shall state in the said Certificate of Practical Completion
the date on which the Works have achieved Practical
Completion and handed over to the Employer.

(ii) Give instructions to the Contractor specifying all the

works which in his opinion are required to be completed
by the Contractor before the issue of a Certificate of
Practical Completion.

(c) If the Superintending Officer has given instructions pursuant to

sub-clause 20.2(b)(ii), the Contractor shall not be entitled to the
Certificate of Practical Completion until the works specified in
the said instructions have been completed to the satisfaction of
the Superintending Officer.

20.3 Access for Remedial Work Access for

Remedial Work
The Contractor’s possession of the Site shall cease on the Date of
Practical Completion, provided that the Contractor shall, upon giving
reasonable notice in writing to the Superintending Officer, be permitted
to enter the Site to carry out any outstanding work and the rectification
of Defects during the Defects Liability Period.

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21 TEST ON COMPLETION
21.1 Notice of Tests and Test Reports Notice of Tests
and Test
(a) The Contractor shall carry out the Test on Completion in Reports
accordance with the requirements of the Contract.

(b) The Contractor shall give notice to the Superintending Officer as

to when he will be ready to carry out the Test on Completion and
the Superintending Officer shall within 14 Days after the receipt
of the Contractor's notice appoint a time for the carrying out of
such Test on Completion.

(c) The Contractor shall provide to the Superintending Officer all test
reports required by the Contract.

21.2 Failure to Appoint Time for Test Failure to

Appoint Time for
If the Superintending Officer fails to appoint a time within 14 Days after Test
the receipt of the Contractor's notice in accordance with sub-clause
21.1(b) or fails to attend at any time or place duly appointed for carrying
out the said test, the Contractor shall be entitled to proceed with the test
in his absence but he shall inform the Superintending Officer that he has
so proceeded and shall thereafter supply him with all test reports.

21.3 Facilities for Test on Completion Facilities for Test

on Completion
(a) The Contractor shall at his own expense provide everything
including such labour, materials, power, fuel, water,
consumables, and apparatus as may be required to carry out the
Test on Completion.

(b) Provided that where the permanent connection for any of the
utilities to the Works are completed by the relevant authority or
public utility company, the Employer shall, on a written request
of the Contractor, make available such utilities to the Contractor
for the purpose of Test on Completion.

(c) The cost of using any such utilities which is provided by the
Employer for the use of the Contractor for the purpose of Test on
Completion shall be reimbursed by the Contractor to the
Employer or may be deducted by the Employer from any
payment due or to become due to the Contractor.

21.4 Repeat Tests Repeat Tests

Any part of the Works which fails to pass the Test on Completion and
any replacement item required under sub-clause 15.7(a) shall upon the
instruction of the Superintending Officer be tested again at the
Contractor's expense within a reasonable time after the instruction until
the successful completion of the Test on Completion.

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22 SECTIONAL COMPLETION
22.1 Completion in Sections Completion in
Sections
(a) Where different Times for Completion for different sections of
the Works are stated in the Appendix or elsewhere in the Contract
Documents and different and separate Liquidated Damages are
provided for each such section of the Works, the provision of the
Contract in regard to:

(i) Clause 20.2 (Certificate of Practical Completion);

(ii) Clause 24 (Delay and Extension of Time);

(iii) Clause 26 (Non-Completion and Damages for Delay in

Completion);

(iv) Clause 27 (Defects Liability After Completion);

(v) Clause 38 (Insurance of the Works); and

(vi) Clause 42.3 (Retention Monies)

but not Option Module F (Performance Security Deposit), if

applicable, and Clause 42.8 (Final Account and Final Certificate)
shall, in the absence of any express provision to the contrary in
any part of the Contract Documents apply as if each such section
was the subject of a separate and distinct contract between the
Employer and the Contractor.

(b) For the avoidance of doubt, nothing contained in sub-clause

22.1(a) shall entitle the Contractor to the release of the whole or
any part of the Performance Security Deposit deposited by him
pursuant to Option Module F (if applicable). The Performance
Security Deposit (if applicable) shall be released or refunded only
upon the issue of the Certificate of Practical Completion of the
whole of the Works or in respect of the last section of the Works,
as the case may be.

23 PARTIAL OCCUPATION BY THE EMPLOYER

23.1 Occupation of Part with Consent Occupation of
Part with Consent
(a) The Employer may with the consent of the Contractor, before
Practical Completion of the Works in accordance with Clause
20.2, take possession of any part of the Works (any such part in
the Contract hereinafter referred to as “the Occupied Part”).

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 (b) Within 14 Days from the date the Employer has taken possession
of the Occupied Part the Superintending Officer shall issue a
Certificate of Practical Completion in respect of the Occupied
Part and certify the estimated value of the Occupied Part which
value shall for the purposes of this Clause 23 be deemed the total
value of the Occupied Part.

23.2 Consequential Effects Consequential

Effects
(a) The following provisions shall apply to the Occupied Part as from
the Date of Practical Completion in respect of the Occupied Part
until the completion of the remainder of the Works:

(i) Release to the Contractor in the next Interim Certificate

after the date of the Employer’s possession of the
Occupied Part of a proportion of the first half of the
Retention Monies under Clause 42 in respect of the
Occupied Part, based upon the total value of the
Occupied Part relative to the value of the whole of the
Works.

(ii) The provisions of Clause 27 (Defects After Completion)

shall apply as if the Occupied Part was the subject of a
separate and distinct contract between the Employer and
the Contractor

(iii) The Contractor may reduce the value of the Works

insured under Clause 38A (if applicable) by the total
value of the Occupied Part as from the Date Of Practical
Completion of the Occupied Part, from which date the
Contractor's obligations under Clauses 34 and 38A (if
applicable) shall cease in relation to the Occupied Part
(except for any outstanding works in the Occupied Part
until such time as their completion by the Contractor has
been certified by the Superintending Officer.)

(iv) The rate of Liquidated Damages for delay pursuant to

Clause 26 shall be reduced proportionately based upon
the total value of the Occupied Part relative to the total
value of the whole of the Works.

(v) On the expiry of the Defects Liability Period of the

Occupied Part or upon the issue of the Certificate of
Making Good Defects of the Occupied Part, whichever is
the later, the Contractor shall be paid the second half of
the Retention Monies calculated on the same basis as the
first half. The Limit of Retention under Clause 42.3 shall
be reduced by the amount of Retention Monies so
released under this Clause 23.

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 (b) For the avoidance of doubt, nothing contained in sub-clause
23.2(a) shall entitle the Contractor to the release of the whole or
any part of the Performance Security Deposit deposited by him
pursuant to Option Module F (if applicable). The Performance
Security Deposit (if applicable) shall be released or refunded only
upon the issue of the Certificate of Practical Completion for the
whole of the Works or in respect of the last section of the Works,
as the case may be.

23.3 Occupation of Part without Consent Occupation of

Part without
(a) The Employer may enter and occupy such part of the Works prior Consent
to the completion of the whole of the Works without the consent
of the Contractor pursuant to Clause 23.1 provided that:

(i) the completion of the Works has been delayed and a

Certificate of Non-Completion which has been issued by
the Superintending Officer under Clause 26.1 is currently
operative; and

(ii) such entry and occupation of such part of the Works by

the Employer can be effected without any unreasonable
disturbance to the Contractor’s arrangements for
completing the remainder of the Works.

(b) The Contractor shall upon the instruction of the Superintending

Officer remove his Construction Plant or Temporary Works from
the relevant part and permit the Employer to occupy the same and
the provisions of Clause 23.1 and 23.2 shall apply in the same
manner as if the Contractor had consented to the Employer taking
possession of such part.

24 DELAY AND EXTENSION OF TIME

24.1 Extension of Time Extension of
Time
Provided that the Contractor has carried out the Works or any section of
the Works with due diligence and has taken all reasonable steps to avoid
or reduce such delay, the Time for Completion of the Works or any
section of the Works may be extended by the Superintending Officer by
such further period or periods of time as may reasonably reflect delay in
completion of the Works or any section of the Works which has been or
is being caused by any or more of the following events:

(a) Force majeure;

(b) Exceptionally inclement weather;

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 (c) Industrial action by workmen, strikes, lock-outs or embargoes
affecting any of the trades employed upon the Works or in the
preparation, manufacture or transportation of any Equipment,
materials or goods for the Works and provided that the same are
not due to any unreasonable act or default of the Contractor or of
any sub-contractor or supplier. Provided that this event shall only
apply if the industrial action by workmen, strike, lock-out or
embargo causing delay is in Malaysia;

(d) One or more of the Excepted Risks;

(e) The Contractor not having received from the Superintending

Officer within a reasonable time necessary Drawings, instructions
or other information in regard to the Works for which notice has
been given by the Contractor in accordance with Clause 4.6 or the
supplementary or revised drawing, specifications, or instruction
as required by Clause 4.7;

(f) An instruction from the Superintending Officer to resolve a

Discrepancy in or between any of the Contract Documents
pursuant to Clause 7.4;

(g) Compliance with Statutory Requirements for which the Employer

is responsible under Clause 10.1 or which results in a Variation
pursuant to Clause 10.2;

(h) Ordering of test by the Superintending Officer which is not

intended by or provided for in the Contract pursuant to Clause
15.4 and the uncovering or making openings for inspection of any
work which is not intended by or provided for in the Contract
pursuant to Clause15.6, unless the test or inspection showed that
the work, the Equipment, materials, goods or workmanship were
not in accordance with the provisions of the Contract;

(i) Failure of the Employer to give possession of the Site or any part
of the Site to the Contractor as required by Clause 17.2;

(j) Acts or omissions of other persons or contractors employed by

the Employer in executing work not forming part of the Contract;

(k) Subject to sub-clause 19.1(b) an instruction by the Superintending

Officer to suspend any work;

(l) A Variation;

(m) Damage, loss or injury to the Works or part of the Works caused
by any one or more of the risks covered by the insurance policies
referred to in Clause 38A, 38B or 38C, whichever is applicable;

(n) The issue of an instruction by the Superintending Officer in

respect of antiquities and fossils under Clause 39;

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 (o) The issue of an instruction by the Superintending Officer in
relation to a Prime Cost or P.C or Provisional Sum item which
gives rise to a Variation of the work described under the Prime
Cost or P.C. or Provisional Sum item in the Contract Documents;

(p) If Option Module C applies, delays on the part of Nominated

Sub-Contractors or Nominated Suppliers for the same reasons as
set out in sub-clauses 24.1(a) to 24.1(o), provided that the same
are not due to any act, negligence, default or breach of contract by
the Nominated Sub-Contractors or Nominated Suppliers or any of
their respective servants or agents;

(q) Any other grounds for extension of time expressly mentioned in

the Contract but not mentioned in this Clause 24.1.

Provided always that the Contractor shall not be entitled to any

extension of time where the instructions, or acts of the Employer or the
Superintending Officer are necessitated by or intended to cure any
default of or breach of contract by the Contractor.

24.2 Notice of Delay Notice of Delay

(a) If the Contractor is of the opinion that the progress or completion

of the Works or any section of the Works is or will be or has been
delayed by any event including but not limited to the events
stated in Clause 24.1, he shall forthwith notify the Superintending
Officer of such event within 30 Days of the occurrence of such
event. Within the said 30 Day period the Contractor shall also
provide:

(i) the appropriate Contract references (if applicable) to such

event of delay;

(ii) the estimated length of the delay and of the extension of

time required; and

(iii) details of the effect of the event of delay on the works

programme accepted under Clause 5.

(b) If the Superintending Officer is of the opinion that the notice and
particulars provided by the Contractor under sub-clause 24.2(a)
are insufficient to enable him to decide on the Contractor’s
application, the Superintending Officer may require the
Contractor to provide within 14 Days or such other period as may
be specified by the Superintending Officer such further
information which the Superintending Officer may reasonably
require including particulars concerning any event and the
circumstances of the delay and the measures planned and/or taken
to avoid or reduce delay.

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24.3 Superintending Officer’s Decision Superintending
Officer’s
(a) Subject to compliance with sub-clauses 24.2(a) and (b), the Decision
Superintending Officer shall notify the Contractor in writing
within a reasonable time but in any case not exceeding 30 Days of
the receipt of the notice or further information, as the case may
be, whether in his opinion the event of delay is one which in
principle entitles the Contractor to an extension of time.

(b) Within a further 30 Days after the decision in sub-clause 24.3(a)

but in any event prior to the expiry of the Time for Completion,
the Superintending Officer shall grant such extension of time, if
any, of the whole or any section of the Works (as the case may
be) as may in his opinion be fair, reasonable and necessary for the
completion of the Works or any section of the Works.

(c) Where the Superintending Officer considers that he does not have
sufficient information to enable him to decide on the Contractor’s
application in accordance with sub-clause 24.3(b), the
Superintending Officer may nevertheless grant such extension of
time as may in his opinion appear to be fair, reasonable and
necessary on the information available, taking into account all the
matters set out in sub-clause 24.3(d) below.

(d) The Superintending Officer when deciding on any extension of

time under this Clause 24.3, shall take into account the following:

(i) extension of time previously granted, if any;

(ii) the effect or extent of any work omitted or (where Option

Module A is applicable) decrease in the quantity of any
work as a result of the remeasurement of provisional
quantities stated in the Bill of Quantities under the
Contract;

(iii) any delays which may operate concurrently with the

delay due to the event or events in question including
those which are due to acts or defaults of the Contractor.

24.4 Interim Decision of Extension of Time Interim Decision

of Extension of
(a) Notwithstanding Clause 24.2, where a delaying event has a Time
continuing effect such that it is not practicable for the Contractor
to submit all the particulars and further information in accordance
with Clause 24.2, he shall nevertheless be entitled to an extension
of time provided that he has submitted to the Superintending
Officer interim particulars at intervals of not more than 30 Days
and final particulars within 30 Days of the event causing the
delay ceasing to operate.

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 (b) On receipt of such interim particulars, the Superintending Officer
shall, without undue delay, make an interim decision on extension
of time and within 30 Days of the receipt of the final particulars,
the Superintending Officer shall, subject to Clause 24.7, review
all the circumstances and shall decide an overall extension of time
in regard to the event.

24.5 Superintending Officer's Discretion Superintending

Officer’s
Notwithstanding the other provisions of this Clause 24, the Discretion
Superintending Officer may, in his absolute discretion (but is not obliged
to), grant a fair, reasonable and necessary extension of time
notwithstanding that the Contractor has failed to comply with the
provisions of this Clause 24.

24.6 Certificate of Extension of Time Certificate of

Extension of
Any decision of Superintending Officer in granting extension of time Time
under this Clause 24 shall be notified by the Superintending Officer to
the Contractor in a certificate (hereinafter referred to as the “Certificate
of Extension of Time”), a copy of which shall also be extended to:

(a) the Employer; and

(b) where it involves a Nominated Sub-Contractor or Nominated

Supplier (if Option Module C applies) then to the said
Nominated Sub-Contractor or Nominated Supplier.

24.7 Review of Superintending Officer's Decision Review of

Superintending
At any time prior to the issuance of the Final Certificate under Clause Officer's
42.8 the Superintending Officer may review any previous extension of Decision
time granted and either:

(a) fix a Time for Completion later than that previously granted if in
his opinion the granting of such longer Time for Completion is
fair and reasonable; or

(b) confirm to the Contractor the Time for Completion previously

fixed.

25 EXPEDITING PROGRESS OF WORKS

25.1 Notification to Expedite Notification to
Expedite
(a) 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
of the Works is at any time, in the opinion of the Superintending
Officer, too slow to achieve completion by the Time for
Completion of the Works or any section of the Works, the
Superintending Officer shall instruct the Contractor accordingly.

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 (b) The Contractor shall upon the receipt of such instruction take
such steps as are necessary to expedite progress and to complete
the Works or any section of the Works in accordance with the
said instruction. Such steps shall include, if required by the
Superintending Officer, the preparation of a revised or modified
Works programme for acceptance pursuant to Clause 5.

(c) Unless the Superintending Officer shall issue an instruction for

Variation in accordance with Clause 28, the Contractor shall not
be entitled to any additional payment whatsoever for taking the
steps referred to in sub-clause 25.1(b).

25.2 Work to Expedite Progress Work to

Expedite
If as a result of any instruction given by the Superintending Officer Progress
under Clause 25.1, the Contractor considers that it is necessary to do any
work at night or on Public Holidays, he shall seek the consent of the
Superintending Officer in accordance with the provisions of Clause 13.1.

26 NON-COMPLETION AND DAMAGES FOR

DELAY IN COMPLETION
26.1 Certificate of Non-Completion Certificate of
Non-Completion
(a) If the Works have not been completed within the Time for
Completion or any extended time granted pursuant to Clause 24
and the Superintending Officer is of the opinion the same ought
reasonably so to have been completed, the Superintending Officer
shall issue a certificate to that effect. Such certificate shall be
referred to as the “Certificate of Non-Completion”. The
Certificate of Non-Completion shall be issued to the Contractor
with a copy to:

(i) the Employer, and

(ii) where it involves a Nominated Sub-Contractor or

Nominated Supplier (if Option Module C applies) then to
the said Nominated Sub-Contractor or Nominated
Supplier.

Provided always the Certificate of Non-Completion shall not be

issued unreasonably or vexatiously.

(c) If, under sub-clause 24.7(a), the Superintending Officer fixes a

later Time for Completion then any Certificate of Non-
Completion previously issued shall cease to be of effect and the
Superintending Officer shall issue such further Certificate of
Non-Completion as may be necessary. The Employer shall then
pay or repay to the Contractor any amounts recovered or
allowed or paid under Clause 26.2 for the period up to such later
Time for Completion.

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26.2 Damages for Non-Completion Damages for
Non-Completion
(a) Upon the receipt of a Certificate of Non-Completion the
Employer shall be entitled to recover from the Contractor
Liquidated Damages calculated at the rate stated in the Appendix
for the period from the Time for Completion or any extended
Time for Completion where applicable to the Date of Practical
Completion, and may deduct such Liquidated Damages, whether
in whole or in part, from any payment due or to become due to
the Contractor under the Contract.

(b) The payment or deduction of such Liquidated 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.

26.3 Employer’s Rights for Damages at Law Employer’s

Rights for
In the event that the Employer for whatever reason shall not be entitled Damages at Law
at law to recover Liquidated Damages, the Employer shall remain
entitled to recover such loss, expense, costs or damages as he would
have been entitled at law.

26.4 Extension of Time During Delay Period Extension of

Time During
(a) After the issue of the Certificate of Non-Completion, if the Delay Period
execution of the Works is subsequently delayed by any of the
events set out in sub-clauses 24.1 (e) to (q) inclusive, the
Employer’s right to Liquidated Damages shall not be affected by
such delaying events but subject to compliance by the Contractor
to Clause 24.2, the Superintending Officer shall grant an
extension of time as is fair, reasonable and necessary pursuant to
Clause 24.

(b) Such extension of time shall be added to the Time for Completion
for the Works or any section of the Works.

(c) The Employer shall then pay or repay the Contractor any amounts
of Liquidated Damages recovered, allowed or paid under Clause
26.2 for the said extension of time.

27 DEFECTS LIABILITY AFTER COMPLETION

27.1 Completion of Outstanding Work and Remedying Defects Completion of
Outstanding
(a) The Contractor shall, during the Defects Liability Period Work and
complete with due expedition or within such time as may be Remedying
specified by the Superintending Officer, any work outstanding at Defects
the Date of Practical Completion (whether or not the Contractor
has undertaken to do so).

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 (b) The Superintending Officer may at any time during the Defects
Liability Period or within 14 Days after its expiration instruct the
Contractor to execute all works of reconstruction and remedying
of any Defects. The Contractor shall complete all such works
with due expedition or within such time as may be specified by
the Superintending Officer.

(c) The obligation of the Contractor to comply with this Clause 27

shall not in any way prejudice the Employer’s rights under the
provisions of any guarantees and/or warranties relating to the
Works or any section of the Works provided in accordance with
the Contract including those provided by sub-contractors and
suppliers, whether nominated or otherwise.

27.2 Cost of Remedying Defects Cost of

Remedying
All works referred to in sub-clauses 27.1(a) and (b) shall be executed by Defects
the Contractor at his own cost.

27.3 Default in Remedying Defects Default in

Remedying
If the Contractor defaults in carrying out his obligations pursuant to sub- Defects
clauses 27.1(a) and/or (b) then the Employer shall be entitled to employ
and pay other persons to carry out the same. The Superintending Officer
shall evaluate and certify the reasonable sum consequent on or incidental
to carrying out such work. Such sum certified shall be recoverable from
the Contractor by the Employer and may be deducted by the Employer
from any payment due or to become due to the Contractor.

27.4 Diminution in Value of Works Diminution in

Value of Works
(a) If the Defects which the Contractor would otherwise have been
liable to rectify at his own cost is such that in the opinion of the
Superintending Officer it will be impracticable or inconvenient to
the Employer to have the Contractor to rectify, the
Superintending Officer shall ascertain an amount of reduction
from the Contract Sum representing the diminution in the value of
the Works to the Employer due to the existence of such Defects.
In determining the diminution in the value of the Works, the
Superintending Officer may take into account any savings in cost
to the Contractor which he would otherwise incur if he was to
rectify the Defects.

(b) The amount of such reduction shall be recoverable by the

Employer from the Contractor or deducted by the Employer from
any payment due or to become due to the Contractor under the
Contract.

27.5 Contractor to Search Contractor to

Search
(a) If Defects appear at any time prior to the expiration of the Defects
Liability Period, the Superintending Officer may instruct the
Contractor to search under his direction for the cause of the
Defects.

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 (b) If the Contractor is liable for such Defects under the Contract, the
cost of the work carried out such searching shall be borne by the
Contractor and the Contractor shall in such case remedy such
Defects at his own cost.

(c) If the Contractor is not liable for such Defects under the Contract
then such work of searching and remedy carried out by the
Contractor shall be deemed a Variation.

27.6 Certificate of Making Good Defects Certificate of

Making Good
(a) At the expiry of the Defects Liability Period and when all the Defects
Defects notified by the Superintending Officer to the Contractor
under this Clause 27 have either been made good by the
Contractor in compliance with the Superintending Officer’s
instructions, or have been dealt with by the Superintending
Officer under Clause 27.4, the Superintending Officer shall issue
a certificate to that effect. Such certificate shall be referred to as
the “Certificate of Making Good Defects”.

(b) The Certificate of Making Good Defects shall be issued to the

Contractor with a copy to:

(i) the Employer, and

(ii) where it involves a Nominated Sub-Contractor or

Nominated Supplier (if Option Module C applies) then to
the said Nominated Sub-Contractor or Nominated
Supplier.

(c) The Certificate of Making Good Defects shall finally discharge

the Contractor from any physical attendance upon the Works for
the purpose of remedying Defects, but shall not prejudice any
other rights of the Employer in regard to latent Defects or other
breaches of the Contract.

27.7 Liability at Law Liability at Law

The provisions of Clauses 27.1 to 27.6 shall not derogate in any way
whatsoever from the Contractor’s liability under the Contract or
otherwise for defective work at law.

28 VARIATIONS
28.1 Power to Order Variations Power to Order
Variations
(a) The Superintending Officer may at any time issue an instruction
in writing requiring a Variation. Provided that (where Option
Module A is applicable) no instruction shall be required for
increase or decrease in the quantity of any work where such
increase or decrease is not the result of an instruction given under
this Clause 28.1, but is the result of the remeasurement of
provisional quantities stated in the Bills of Quantities.

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 (b) No such Variation shall in any way invalidate the Contract, but
the effect, if any, of all such Variations shall be valued in
accordance with Clause 29. Provided that where the issue of an
instruction to vary the Works is necessitated by some default or
breach of contract by the Contractor or for which he is
responsible, any additional cost attributable to such default shall
be borne by the Contractor.

(c) If or to the extent that an instruction does not state that it

constitutes a Variation but the Contractor considers that it does,
then the Contractor shall comply with the same but may request
in writing to the Superintending Officer to specify that the said
instruction constitutes a Variation. The Superintending Officer
shall forthwith confirm, modify or rescind in writing the said
instruction.

(d) The Contractor shall carry out with due diligence and expedition
all Variations pending the valuation of the Variation by the
Superintending Officer pursuant to Clause 29.

29 VALUATION OF VARIATIONS
29.1 Valuation Method Valuation
Method
All Variations shall be valued in accordance with the following
valuation methods:

(a) Where the varied work is of a similar character to, is executed

under similar conditions as, and does not significantly change the
quantity of the work described in the Contract Documents, the
Rates for the Works as set out in the Contract shall be used for the
valuation; or

(b) Where the varied work is of a similar character to the work

described in the Contract Documents and/or is not executed under
similar conditions and/or involves significant changes in the
quantity of such work described in the Contract Documents, the
Rates for the Works as set out in the Contract shall be basis for
the valuation but with a fair allowance for any differences in
conditions and/or changes in quantity; or

(c) Where paragraphs (a) and (b) above do not apply, then by
valuation at fair market rates and prices; or

(d) Where none of the above methods is applicable or appropriate in

the circumstances of that particular varied work, the valuation
shall be based on Daywork rates and prices of necessary Plant,
materials or goods, labour and any additional Construction Plant
necessary for the execution of the varied work subject to the
following:

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 (i) As a condition precedent to any right to any payment
under this paragraph, the Contractor shall have received
from the Superintending Officer an instruction
authorising that the varied work be executed on Daywork
basis.

(ii) Unless otherwise specified the Contractor shall be

entitled to additional 15 per cent on the Daywork rates
which percentage shall be deemed to compensate
adequately the Contractor in respect of all supervision,
the use of Construction Plant (except for additional
Construction Plant necessary for the execution of the
varied work), overheads, profit and all other loss,
expense, costs or damages incurred in or connected with
the execution of the varied work.

(iii) The Contractor shall maintain proper daily records

specifying the time spent by each workman of the
relevant trade (and if required by the Superintending
Officer, specifying the workmen’s names), any
Construction Plant employed and Equipment, materials
or goods used in the execution of the varied work.

(iv) Such records together with the relevant vouchers,

delivery orders or receipts shall be delivered to the
Superintending Officer for verification not later than 7
Days after the varied work shall have been executed. In
the case of continuing work, such records shall be
delivered to the Superintending Officer at weekly
intervals for verification with the final records delivered
not later than 7 Days after varied work shall have been
completed.

(e) The Rates for the Works as set out in the Contract shall be used
for the valuation of work omitted; provided that if the omission
varies the conditions under which any remaining work are carried
out, the values for such remaining work shall be determined in
accordance with sub-clauses 29.1(b) or (c) or (d) as the case may
be. For the avoidance of doubt, the Contractor shall not be
entitled to Loss and Expense for omission of work unless such
work is carried out by the Employer or by another contractor.

29.2 Agreement on Valuation Agreement on

Valuation
(a) The Contractor shall provide the Superintending Officer with
such details and particulars pursuant to Clause 29.1 for the
purpose of valuing the Variation. The Superintending Officer
shall within 30 Days of receipt of such details and particulars
make such valuation in accordance with Clause 29.1 and shall
notify the Contractor in writing the value of the Variation.

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 (b) The Contractor shall within 30 Days of the receipt of the notice of
value of the Variation, give notice of any disagreement in writing
to the Superintending Officer and shall at the same time set out
the valuation which he considers should have been made, giving
full details and particulars. If the Contractor does not give notice
of his disagreement with the said valuation of the Superintending
Officer within the said 30 Day period he shall be deemed to have
accepted the valuation and such valuation shall be final and
binding on the Employer and the Contractor and shall not
thereafter be disputed or questioned by either party in any way
whatsoever.

(c) Following receipt of the Contractor’s notice of disagreement (if

any), the Superintending Officer shall within a further 30 Days
notify the Contractor of his decision by either confirming his
valuation previously made or amending the whole or any part of
the same.

29.3 Inclusion of Variations in Interim Certificates Inclusion of

Variations in
The Superintending Officer shall upon notifying the Contractor of the Interim
value of the Variation pursuant to Clause 29.2 give effect to the Certificates
valuation of such Variation in the following certificate issued by the
Superintending Officer pursuant to Clause 42.

30 MEASUREMENT
30.1 Contractor to Attend Measurement Contractor to
Attend
The Superintending Officer shall give reasonable notice to the Measurement
Contractor when he requires any part of the Works to be measured. The
Contractor shall then:

(a) forthwith attend or send a properly qualified and authorised

representative to take jointly with the Superintending Officer any
measurements of the Works that may be necessary for the
purposes of any valuation, including the valuation of any
Variation; and

(b) supply documents and information for the taking or calculation of

any measurement and all other particulars that may be reasonable
required by the Superintending Officer for the purposes of such
valuation.

30.2 Contractor to Provide Assistance Contractor to

Provide
The Contractor shall at his own cost provide the Superintending Officer Assistance
with assistance and with adequate personnel and appliances for
measuring the Works.

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30.3 Record of Measurements Record of
Measurements
(a) Any measurement taken jointly shall be recorded at the time and
signed by the representatives of the Contractor and the
Superintending Officer.

(b) If the Contractor does not attend or send a representative to take

the measurements jointly with the Superintending Officer or sign
the measurements taken, the measurements made by the
Superintending Officer and notified to the Contractor shall, in the
absence of any manifest error, be taken to be correct and shall be
final and binding on the Contractor.

30.4 Failure to Agree Measurements Failure to Agree

Measurements
(a) If the Contractor attends or sends a representative but there is no
agreement on the whole or part of the measurements, the
Contractor shall notify in writing the Superintending Officer
within 14 Days of the date upon which the measurements were
taken his disagreement regarding the part of measurements taken
by the Superintending Officer. Such notice shall set out in detail
the measurement in question and supported by relevant
documents and other information.

(b) The Superintending Officer shall within 14 Days of the receipt of

such documents or information submitted by the Contractor,
notify the Contractor of his decision by either confirming his
measurement previously made or amending the whole or any part
of the same.

31 CLAIMS FOR LOSS AND EXPENSE

31.1 Reasons for Loss and Expense Claim Reasons for Loss
and Expense
The Contractor shall be entitled to recover Loss and Expense sustained Claim
or incurred by him and for which he would not be reimbursed by any
other provision of the Contract, howsoever arising as a result of the
regular progress and/or completion of the Works or any section of the
Works having been disrupted, prolonged or otherwise materially
affected by any of the following event:

(a) One or more of the Excepted Risks;

(b) The Contractor not having received from the Superintending

Officer within a reasonable time necessary Drawings, instructions
or other information in regard to the Works for which notice has
been given by the Contractor in accordance with Clause 4.6 or the
supplementary or revised drawing, specifications, or instruction
as required by Clause 4.7;

(c) An instruction from the Superintending Officer to resolve a

Discrepancy in or between any of the Contract Documents
pursuant to Clause 7.4;

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 (d) Ordering of test by the Superintending Officer which is not
provided by the Contract pursuant to Clause 15.4 and the
uncovering or making openings for inspection of any work
pursuant to Clause15.6, unless the test or inspection showed that
the Equipment, materials, goods or workmanship had not been in
accordance with the provisions of the Contract;

(e) Failure of the Employer to give possession of the Site or any part
of the Site to the Contractor as required by Clause 17.2;

(f) Acts or omissions of other persons and contractors engaged by

the Employer in executing work not forming part of the Contract;

(g) Subject to sub-clause 19.1(b) an instruction by the Superintending

Officer to suspend any work;

(h) A Variation;

(i) The issuance of an instruction by the Superintending Officer in

respect of antiquities and fossils under Clause 39;

(j) Any other ground for Loss and Expense expressly mentioned in
the Contract but not mentioned in this Clause 31.1;

Provided always that the Contractor shall not be entitled to any such
Loss and Expense where the event arises from or is necessitated by or is
intended to cure any default or breach of contract by the Contractor.

32 PROCEDURE FOR CLAIMS

32.1 Notice of Claims Notice of Claims

(a) Whenever the Contractor intends to claim Loss and Expense, he

shall give notice in writing of his intention to do so to the
Superintending Officer within 30 Days after the event giving rise
to his claim has first arisen and shall comply with Clauses 32.2 to
32.4. The notice shall specify:

(i) the event and its consequences, and

(ii) the appropriate Contract references to such event which

are relevant to the Loss and Expense; and

(iii) an estimated value of the Loss and Expense.

(b) The giving of such a notice shall be a condition precedent to any

entitlement that the Contractor may have under the Contract.

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 (c) The fact that the Contractor does not or may not know whether
the valuation of a Variation has been agreed or whether the
Superintending Officer has decided to include in any certificate
any amount in respect of any claim shall not excuse the
Contractor from the requirement to give a notice under sub-clause
32.1(a).

32.2 Contemporary Records Contemporary

Records
(a) Upon the happening of any event in respect of which the
Contractor may intend to claim for Loss and Expense, the
Contractor shall keep such contemporary records as may be
reasonably necessary to support any claim he may subsequently
wish to make.

(b) Without necessarily admitting the Employer’s liability, the

Superintending Officer may, on receipt of a notice under Clause
32.1, inspect such contemporary records and may instruct the
Contractor to keep any further records which he considers to be
material to the claim of which notice has been given.

(c) The Contractor shall permit the Superintending Officer to inspect

all records kept pursuant to this Clause 32.2 and shall supply him
with copies of such records as and when the Superintending
Officer so instructs.

32.3 Substantiation of Claims Substantiation

of Claims
(a) Within 30 Days, or such other time as may be agreed by the
Superintending Officer, of the Contractor giving notice under
Clause 32.1, the Contractor shall submit to the Superintending
Officer an account in writing giving detailed particulars of the
amount claimed and the event upon which the claim is based,
together with detailed particulars of the claim for Loss and
Expense. The detailed particulars submitted by the Contractor
shall adequately substantiate his claim including showing the link
between the event relied on and the amount so claimed.

(b) Where the events 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 Superintending Officer
may require, send such further interim accounts giving the
accumulated amount of the claims and any further grounds upon
which they are based. Within 30 Days of the end of the effects
resulting from the event, the Contractor shall submit to the
Superintending Officer a final account of the claim supported
with detailed particulars.

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32.4 Access to Contractor’s Books and Documents Access to
Contractor’s
(a) In order to verify any claim submitted under this Clause 32, the Books and
Superintending Officer shall have access to all books, documents, Documents
papers or records in the possession, custody or control of the
Contractor that are material to the claim for the purpose of
making audit, examination, excerpts and transcripts. Such books,
documents, papers or records shall remain available in
accordance with this Clause 32.4 until all claims, mediation,
arbitration, or litigation have been finally disposed of.

(b) The Contractor shall use his best endeavours to ensure that all
books, documents, papers or records in the possession custody or
control of a sub-contractor or supplier that are material to the
claim are similarly made available.

32.5 Payment of Claims Payment of

Claims
(a) Subject to compliance with Clauses 32.1 to 32.4, the Contractor
shall be entitled to have included in any payment certified by the
Superintending Officer pursuant to Clause 42 such amount in
respect of any claim for Loss and Expense as the Superintending
Officer may consider due to the Contractor.

(b) If the Contractor fails to supply the Superintending Officer with

adequate substantiation of the whole of any amount claimed, the
Contractor shall only be entitled to payment in respect of such
part of the amount as may have been substantiated to the
satisfaction of the Superintending Officer.

(c) The inclusion by the Superintending Officer in any certificate

under Clause 42 of any amount in respect of any claim for Loss
and Expense or any payment by the Employer in respect of any
such amount shall not:

(i) prejudice the Employer’s right to dispute the Contractor’s

entitlement to the amount certified either in principle, or
as to its quantification or from referring such dispute for
decision pursuant to Clause 47.

(ii) be taken into account by the Superintending Officer or

any arbitrator (or other tribunal) in deciding whether the
Contractor shall repay to the Employer the whole or any
part of such amount.

32.6 Failure to Comply Failure to

Comply
If the Contractor shall have complied with Clause 32.1 but shall not have
complied fully or at all with any of the provisions of Clauses 32.2 to
32.4, the Superintending Officer shall be entitled to make such
assessment, valuation or opinion as shall be fair and reasonable on the
basis of the information available to him.

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33 CONSTRUCTION PLANT, TEMPORARY
WORKS, MATERIALS AND GOODS
33.1 Exclusive Use for the Works Exclusive Use
for the Works
(a) All Construction Plant, Temporary Works, Equipment, materials
and goods provided by the Contractor shall, when brought on to
the Site, be deemed to be exclusively intended for the execution
of the Works.

(b) The Contractor shall not without the written consent of the
Superintending Officer remove such Construction Plant,
Temporary Works, Equipment, materials or goods or any part of
the same except for the purpose of moving it within the Site.
Provided that the consent of the Superintending Officer shall not
be required for vehicles engaged in transporting any staff, labour,
Construction Plant, Equipment, materials or goods to and from
the Site.

33.2 Passing of Property and Vesting Passing of

Property and
(a) Property in Equipment, materials or goods shall pass to the Vesting
Employer when payment is made for the same in accordance with
Clause 42.

(b) Construction Plant and Temporary Works, owned by the

Contractor, or by any company which the Contractor has
controlling interests, shall, when on the Site, be deemed to be the
property of the Employer. Provided always that the vesting of
such property in the Employer shall not prejudice the right of the
Contractor to the sole use of the Construction Plant and
Temporary Works, for the purpose of the Works nor shall it affect
the Contractor’s responsibility to operate and maintain the same
under the provisions of the Contract.

33.3 Employer not liable for Damage Employer not

liable for
The Employer shall not at any time be liable for loss or damage to any of Damage
the Construction Plant, Temporary Works, Equipment, materials or
goods nor for any loss, expense, costs, damages, liability or claim arising
from the presence or use of the Construction Plant, Temporary Works,
Equipment, materials or goods except and to the extent that the same is
due to Excepted Risks or any act or neglect of the Employer or of any
person for whom the Employer is responsible.

33.4 Conditions for Hire of Construction Plant Conditions for

Hire of
With a view to securing the continued availability for the purpose of Construction
executing the Works in the event of determination of the Contractor’s Plant
employment under Clause 44, of any hired Construction Plant or
Temporary Works, the Contractor shall not bring on to the Site any hired
Construction Plant or Temporary Works unless there is an agreement for
the hire of such Construction Plant or Temporary Works (which
agreement shall be deemed not to include an agreement for hire
purchase) which contains a provision that the owner of such
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 Construction Plant or Temporary Works will:

(a) on request in writing made by the Employer within 14 Days after

the date on which the determination of the Contractor’s
employment has become effective, and

(b) on the Employer undertaking to pay the hire charges in respect of

such Construction Plant or Temporary Works from such date,

hire such Construction Plant or Temporary Works to the Employer on

the same terms in all respects as the same was hired to the Contractor
provided that the Employer shall be entitled to permit the use of such
Construction Plant or Temporary Works by any other contractor
employed by the Employer for the purpose of executing and completing
the Works and remedying Defects under Clause 27.

33.5 Re-vesting and Removal Re-vesting and

Removal
(a) Upon the removal from the Site, with the consent of the
Superintending Officer under Clause 33.1, of any such
Construction Plant, Temporary Works, Equipment, materials or
goods as have become or been deemed to have become the
property of the Employer under Clause 33.2, the property in such
Construction Plant, Temporary Works, Equipment, materials or
goods shall re-vest in the Contractor,

(c) Upon the completion of the Works and the making good
of all Defects, the property in the remainder of such
Construction Plant, Temporary Works, Equipment,
materials or goods shall, subject to Clause 44
(Determination by Employer), re-vest in the Contractor.

33.6 Incorporation of Clause in Sub-contracts Incorporation of

Clause in Sub-
The Contractor shall, where entering into any sub-contract for the contracts
execution of any part of the Works, incorporate in such sub-contract (by
reference or otherwise) the provisions of this Clause 33 in relation to
Construction Plant, Temporary Works, Equipment, materials or goods
brought on to the Site by the sub-contractor.

34 GENERAL RESPONSIBILITIES
34.1 Care of the Works Care of the
Works
(a) From the Date of Commencement of the Works until the Date of
Practical Completion (or the latest Date of Practical Completion
if more than one) certified by the Superintending Officer pursuant
to Clause 20.2, the Contractor shall take full responsibility for the
care of the whole or any section of the Works as well as
Equipment, materials or goods intended for or connected with the
Works and all Construction Plant, Temporary Works and any
other things of whatsoever nature required by the Contractor for
the purposes of the Contract.

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 (b) The Contractor shall take full responsibility for the care of any
outstanding work which he has undertaken or shall be obliged to
complete during the Defects Liability Period until such
outstanding work has been completed to the satisfaction of the
Superintending Officer.

34.2 Responsibility to Rectify Damage, Loss or Injury Responsibility to

Rectify Damage,
(a) In the event of any damage, loss or injury to the Works arising Loss or Injury
from any cause whatsoever (other than the Excepted Risks), the
Contractor shall at his cost, make good with all reasonable
expedition such damage, loss or injury to the satisfaction of the
Superintending Officer and shall notwithstanding such damage,
loss or injury proceed with the construction and completion of the
Works in all respects in accordance with the Contract.

(b) In the event of any damage, loss or injury to the Works arising
from any of the Excepted Risks, the Contractor shall, if and to the
extent required by any instruction of the Superintending Officer,
rectify and make good the same.

(c) In the event of any damage, loss or injury to the Works arising
from an Excepted Risk and also from a risk for which the
Contractor is responsible under Clause 34.1, the Superintending
Officer shall, when certifying the amount of Loss and Expense
under Clause 32, make a fair apportionment of the costs so that
the Employer shall not be obliged to pay costs for which the
Contractor is otherwise responsible under the Contract.

35 INDEMNITY PROVISIONS
35.1 Injury to Persons Injury to
Persons
The Contractor shall be liable for and shall indemnify the Employer
against any loss, expense, costs, damages, liability or claim whatsoever
whether arising at law or by statute in respect of personal injury to or
death of any person whomsoever arising out of or in the course of or by
reason of the execution of the Works, subject always to Clause 35.3.

35.2 Damage to Property Damage to

Property
Without prejudice to his general obligations to design (to the extent
required by the Contract), execute and complete the Works under Clause
7.1, the Contractor shall be liable for and indemnify the Employer
against any loss, expense, costs, damages, liability or claim due to injury
or damages of any kind to any property real or personal (including any
property of the Employer other than the Works) insofar as such injury or
damage arises out of or in the course of or by reason of the execution of
the Works, subject always to Clause 35.3.

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35.3 Contribution Contribution

(a) The Contractor's liability to indemnify the Employer under

Clauses 35.1 and 35.2 shall be reduced in proportion to the extent
to which any act or neglect of the Employer or of any person for
whom the Employer is responsible, has contributed to the said
death, injuries or damage.

(b) The indemnities given by the Contractor under Clauses 35.1 and
35.2 shall not be defeated or reduced by reason of any negligence
or omission of the Employer or the Superintending Officer or any
person for whom they are responsible in failing to supervise or
control the Contractor’s site operations or methods of working or
Temporary Works, or to detect or prevent or remedy defective
work, or to ensure proper performance of any other obligations of
the Contractor under the Contract.

35.4 Contractor to Rectify Damage Contractor to

Rectify Damage
(a) Without prejudice to the provisions of Clause 35.2, where
damage, loss or injury of any kind arises to any property out of or
in the course of or by reason of the execution of the Works, the
Superintending Officer shall be entitled to instruct the Contractor
to rectify any such damage, loss or injury at any time before the
issue of the Certificate of Practical Completion pursuant to
Clause 20.2 and the Contractor shall upon receipt of such an
instruction forthwith comply with the same.

(b) If the Contractor’s liability is reduced under sub-clause 35.3(a)

then the proportion for which the Employer is liable shall be
treated as a Variation.

35.5 Damage to Property of Employer or Relevant Authority Damage to

Property of
(a) If the Contractor fails to comply with the instruction of the Employer or
Superintending Officer under Clause 35.4 then the Employer Relevant
Authority
shall be entitled to employ and pay other persons to carry out the
same.

(b) Where the damage, loss or injury is to property belonging to the

Government or any other statutory body or local authority (herein
referred to as “the relevant authority”) then the Employer may
pay the requisite amount to the relevant authority.

(c) The Superintending Officer shall evaluate and certify the

reasonable sum consequent on or incidental to such damage, loss
or injury, which sum shall be recoverable from the Contractor by
the Employer and may be deducted by the Employer from any
payment due or to become due to the Contractor.

(d) Provided that where payment is made to the relevant authority,

the Employer shall furnish to or procure for the Contractor such
evidence of payment made and such discharge or release as the
Contractor may reasonably require.

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36 INSURANCE FOR PERSONAL INJURY AND
PROPERTY DAMAGE
36.1 Taking of Third Party Liability Insurance Taking of Third
Party Liability
(a) Without prejudice to his liability to indemnify the Employer Insurance
under Clause 35, the Contractor shall, before commencement of
any work under the Contract, take out and maintain such
insurance policy or policies as are necessary to cover the liability
of the Contractor in respect of personal injuries or death or
damage to property real or personal (other than the Works)
arising out of or in the course of or by reason of the carrying out
of the Works. Such insurance policy or policies shall be subject
to such limitations as to the extent of liability for any one accident
as may be set out in the Appendix. Where an excess is specified
by the insurance policy or policies, it shall be the Contractor’s
responsibility to bear the amount of such excess.

(b) Such insurance policy or policies shall be effected and maintained

in the joint names of the Employer and the Contractor and any
sub-contractors from the Date of Commencement until the Date
of Practical Completion and in such manner that the Employer,
the Contractor and any sub-contractors are also covered during
the Defects Liability Period for any claim which may arise in the
course of the execution of the Works and rectification of Defects
pursuant to Clause 27.

(c) The said insurance policy or policies shall include a “cross

liability” provision such that the insurance shall apply to the
Contractor and the Employer as separate insurers.

(iv) The insurance referred to in this Clause 36.1 shall be

placed with an insurer approved by the Superintending
Officer.

36.2 Deposition of the Policies Deposition of

the Policies
The Contractor shall deposit with the Superintending Officer the original
of each of the relevant policy or policies of insurance and the receipts in
respect of premiums paid under such policy or policies.

36.3 Default in Insuring Default in

Insuring
Should the Contractor default in taking out or maintaining the insurance
policy or polices as stipulated in Clause 36.1, the Employer (without
prejudice to any rights or remedies available) may himself take out
and/or maintain the necessary insurance policy or policies and the
amount paid by him in respect of premiums shall be recoverable from
the Contractor or deducted from any payment due or to become due to
the Contractor under the Contract.

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37 INSURANCE FOR WORKMEN
37.1 Employee’s Social Security Scheme for Local Workmen Employee’s
Social Security
(a) Without prejudice to his liability to indemnify the Employer Scheme for
under Clause 35.1, the Contractor shall register or cause to Local Workmen
register all local workmen employed in the execution of the
Works and who are subject to registration under the Employee’s
Social Security Scheme (hereinafter referred to as “SOCSO”) in
accordance with the Employee’s Social Security Act, 1969 or any
subsequent modification or re-enactment of the said Act.

(b) For the purpose of Clause 37, the term “local workmen” shall
include workmen who are Malaysian citizens and those who have
permanent resident status.

(c) The Contractor shall submit the Code Number and Social
Security Numbers of all the workmen registered under the said
Scheme to the Superintending Officer for verification and make
payment of all necessary contributions from the Date for
Commencement until the Date of Practical Completion of the
Works. It shall be the duty of the Contractor to produce to the
Superintending Officer contribution statement or payment
vouchers as evidence of payment of such contributions, whether
demanded or not.

37.2 Workmen’s Compensation Insurance for Foreign Workers Workmen’s

Compensation
(a) Without prejudice to his liability to indemnify the Employer for Foreign
under Clause 35.1, the Contractor shall take out and maintain a Workers
Workmen’s Compensation Insurance Policy for all foreign
workers under the Workmen’s Compensation Act 1952,
Workmen’s Compensation (Foreign Workers’ Compensation
Scheme) (Insurance) Order 1998 or any subsequent modification
or re-enactment of the said Act or Order.
(b) Provided that, in relation to foreign workers employed by any
subcontractor, the Contractor's obligations to insure under this
Clause 37.2 shall be satisfied if the subcontractor has insured
against the liability in respect of such foreign workers in such
manner that the Employer and the Contractor is indemnified
under the policy, but the Contractor shall require such
subcontractor to produce to the Employer, when required, such
policy of insurance and the receipt for the payment of the current
premium.
(c) Such insurance policy or policies shall be effected and maintained
in the joint names of the Employer and the Contractor and any
sub-contractors from the Date of Commencement until the Date
of Practical Completion and in such manner that the Employer,
the Contractor and any sub-contractors are also covered during
the Defects Liability Period for any claim which may arise in the
course of the execution of the Works and rectification of Defects
pursuant to Clause 27.

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 (d) Any such insurance as is referred to in Clause 37.2 shall be
placed with an insurer approved by the Superintending Officer.
(e) The Contractor shall deposit with the Superintending Officer the
original of each of the relevant policy or policies of insurance and
the receipts in respect of premiums paid under such policy or
policies.

37.3 Insurance for Local Workmen not Subject to SOCSO Insurance for
Local Workmen
(a) Without prejudice to his liability to indemnify the Employer not Subject to
under Clause 35.1, the Contractor shall take out and maintain an SOCSO
insurance policy for local workmen who are not subject to
registration under SOCSO in accordance with the Employee’s
Social Security Act, 1969 or any subsequent modification or re-
enactment of the said Act.

(b) Such insurance policy or policies shall be effected and maintained

in the joint names of the Employer and the Contractor and any
sub-contractors from the Date of Commencement until the Date
of Practical Completion and in such manner that the Employer,
the Contractor and any sub-contractors are also covered during
the Defects Liability Period for any claim which may arise in the
course of the execution of the Works and rectification of Defects
pursuant to Clause 27.

(c) Any such insurance as is referred to in Clause 37.3 shall be

placed with an insurer approved by the Superintending Officer.

(d) The Contractor shall deposit with the Superintending Officer the
original of each of the relevant policy or policies of insurance and
the receipts in respect of premiums paid under such policy or
policies.

37.4 Default in Compliance Default in

Compliance
If the Contractor defaults in complying with the provisions of Clause
37.1, 37.2 or 37.3, the Employer (without prejudice to any other rights or
remedies available) may pay such premiums or contributions as they
become due and remain unpaid and deduct the amount of such premiums
or contributions from any payment due or to become due to the
Contractor.

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38 INSURANCE OF THE WORKS
38.1 Alternative Clauses Alternative
Clauses
Clause 38A or Clause 38B or Clause 38C shall apply whichever clause
is stated to apply in the Appendix.

38A INSURANCE OF THE WORKS - BY THE

CONTRACTOR
38A.1 All Risks Insurance All Risks
Insurance
(a) Without limiting his obligations or responsibilities under Clause
34, the Contractor shall before commencement of any work under
the Contract take out and maintain an All Risks Insurance policy
in respect of the whole of the Works as well as Equipment,
materials or goods intended for or connected with the Works and
Temporary Works (but excluding tools and Construction Plant
owned or hired by the Contractor or any sub-contractors) to the
value of not less than the Contract Sum plus the percentage for
professional fees and the amount for removal of debris (if any) as
stated in the Appendix.

(b) Such insurance policy or policies shall be effected and maintained

in the joint names of the Employer and the Contractor and the
sub-contractors from the Date of Commencement until the Date
of Practical Completion or the date of determination of the
employment of the Contractor under Clause 44 (Determination by
Employer), or Clause 45 (Determination by Contractor), or
termination of the Contract under Clause 46, whichever is the
earlier.

38A.2 Deposition of Insurance Deposition of

Insurance
(a) The insurance referred to in Clause 38A.1 shall be effected with
an insurer and on terms approved by the Superintending Officer.

(b) Each policy taken out pursuant to Clause 38A shall provide
expressly for the payment, in the first place, to the Employer of
any insurance money due under the policy.

(c) The Contractor shall deposit with the Superintending Officer the
original of each of the relevant policy or policies of insurance and
the receipts in respect of premiums paid under such policy or
policies.

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38A.3 Default in Insuring Default in
Insuring
In the event the Contractor defaults in taking out or maintaining the
insurance policy or polices as stipulated in Clause 38A.1, the Employer
(without prejudice to any rights or remedies available) may himself take
out and/or maintain the necessary insurance policy or policies and the
amount paid by him in respect of premiums shall be recoverable from
the Contractor or deducted from any payment due or to become due to
the Contractor under the Contract.

38A.4 Maintenance of Independent General Policy Maintenance of

Independent
(a) If the Contractor independently of his obligations under the General Policy
Contract maintains a policy or policies of insurance with insurers
approved by the Superintending Officer covering works which
includes the Works under the Contract against the insured risks
referred to in Clause 38A.1, and in like terms as to the sum
insured (inclusive of the percentage for professional fees and
amount for the removal of debris (if any) stated in the Appendix)
and payment of insurance money to the Employer, then the
maintenance by the Contractor of such policy or policies shall be
a discharge of the Contractor’s obligations to insure in the joint
names of the Contractor and Employer, provided that the
Employer’s interest is endorsed on the same.

(b) In such a case, the production by the Contractor of current

certificates of insurance from the insurers confirming the
existence and continuance of the relevant cover required by this
Clause 38A with the appropriate endorsement of the Employer’s
interest on the same shall be sufficient discharge of the
Contractor’s obligation to deposit the policy or policies and
receipts for premiums paid with the Employer.

(c) Such certificates shall state expressly any exclusions or

limitations of liability or insurance excesses under the policy.

38A.5 Contractor liable for Insurance Excesses Contractor

liable for
The Contractor shall be fully responsible and liable for any insurance Insurance
excess stipulated in the insurance policy or policies provided under Excesses
Clause 38A, provided that the Contractor’s liability for such excess shall
be reduced in proportion to the extent to which any act or neglect of the
Employer or of any person for whom the Employer is responsible, has
contributed to the said damage, loss or injury.

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38A.6 Damage, Loss or Injury to the Works Damage, Loss or
Injury to the
(a) If any damage, loss or injury affecting the whole or any part of Works
the Works or any Equipment, materials or goods is occasioned by
any one or more of the risks covered by the insurance policy or
policies referred to in Clause 38A.1 then, upon discovering the
said damage, loss or injury, the Contractor shall immediately give
notice in writing to the Superintending Officer of the extent,
nature and location of such damage, loss or injury.

(b) The occurrence of such damage, loss or injury shall be

disregarded in computing any amounts payable to the Contractor
under or by virtue of the Contract.

(c) After any inspection required by the insurers or other persons

authorised by the insurers in respect of a claim under the said
insurance policy referred to in Clause 38A.1 has been completed,
the Contractor shall subject to sub-clause 34.2(c) proceed
immediately and with due diligence to make good with all
reasonable expedition such damage, loss or injury including
removal and disposal of any debris to the satisfaction of the
Superintending Officer and proceed with the construction and
completion of the Works.

(d) The Contractor and any sub-contractors who are recognised as

insureds under the said insurance policy referred to in Clause
38A.1 shall authorise the insurers to pay all monies from such
insurance in respect of the damage, loss or injury referred to in
sub-clause 38A.6(a) to the Employer. Any monies, if and when
received shall be released to the Contractor (less only the said
percentage for professional fees, if any) by instalments on the
Interim Certificates issued by the Superintending Officer.

(e) The amounts released under sub-clause 38A.6(d) shall be

calculated as from the date of receipt of the monies in proportion
to the extent of work of restoration, replacement or repair carried
out by the Contractor. The Contractor shall not be entitled to any
payment in respect of such work of restoration, replacement or
repair and the removal and disposal of debris other than the
monies received under the said insurance policy or policies.

38B INSURANCE OF THE WORKS - BY THE

EMPLOYER
38B.1 All Risks Insurance All Risks
Insurance
(a) The Employer shall take out and maintain an All Risks Insurance
policy in respect of the whole of the Works as well as Equipment,
materials or goods intended for or connected with the Works and
Temporary Works (but excluding tools and Construction Plant
owned or hired by the Contractor or any sub-contractors) to the
value of not less than the Contract Sum plus the percentage for
professional fees and the amount for removal of debris (if any) as
stated in the Appendix.
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 (b) Such insurance policy or policies shall be effected and maintained
in the joint names of the Employer and the Contractor and the
sub-contractors from the Date of Commencement until the Date
of Practical Completion or the date of determination of the
employment of the Contractor under Clause 44 (Determination by
Employer), or Clause 45 (Determination by Contractor), or
termination of the Contract under Clause 46, whichever is the
earlier.

(c) The Employer shall maintain of the said insurance and produce a
copy of such insurance policy and receipt for the premium paid to
the Contractor.

(d) Prior to the date of Tender the Employer shall make known to the
Contractor the terms of the said policy or policies including any
limitations or exclusions of liabilities or insurance excess and the
Contractor shall be deemed to have noted the same without
affecting the Contractor’s liability pursuant to Clause 34.

(e) The Contractor may take out such additional insurance as he

considers necessary, including any insurance in respect of his
liability for excess under Clause 38B.3 and for tools and
Construction Plant owned or hired by the Contractor or any sub-
contractors.

(f) Each policy taken out pursuant to Clause 38B shall provide
expressly for the payment in the first place to the Employer of
any insurance money due under the policy

38B.2 Default by the Employer to Insure Default by the

Employer to
If the Employer shall at any time fail to take out or maintain a policy of Insure
insurance pursuant to Clause 38B.1, the Contractor may take out or
maintain the same on behalf of the Employer and upon the production of
the receipt of any premium paid by him shall be entitled to have the
amount added to the Contract Sum.

38B.3 Contractor liable for Insurance Excesses Contractor

liable for
The Contractor shall be fully responsible and liable for any insurance Insurance
excess stipulated in the insurance policy or policies provided under Excesses
Clause 38B, provided that the Contractor’s liability for such excess shall
be reduced in proportion to the extent to which any act or neglect of the
Employer or of any person for whom the Employer is responsible, has
contributed to the said damage, loss or injury.

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38B.4 Damage, Loss or Injury to the Works Damage, Loss or
Injury to the
(a) If any damage, loss or injury affecting the whole or any part of Works
the Works or any Equipment, materials or goods is occasioned by
any one or more of the risks covered by the insurance policy or
policies referred to in Clause 38B.1 then upon discovering the
said damage, loss or injury, the Contractor shall immediately give
notice in writing to the Superintending Officer of the extent,
nature and location of such damage, loss or injury.

(b) The occurrence of such damage, loss or injury shall be

disregarded in computing any amounts payable to the Contractor
under or by virtue of the Contract.

(c) After any inspection required by the insurers or other persons

authorised by the insurers in respect of a claim under the said
insurance policy referred to in Clause 38B.1 has been completed,
the Contractor shall subject to sub-clause 34.2(c) proceed
immediately and with due diligence to make good with all
reasonable expedition such damage, loss or injury including
removal and disposal of any debris to the satisfaction of the
Superintending Officer and proceed with the construction and
completion of the Works.

(d) The Contractor and any sub-contractors who are recognised as

insureds under the said insurance policy referred to in Clause
38B.1 shall authorise the insurers to pay all monies from such
insurance in respect of the damage, loss or injury referred to in
sub-clause 38B.4(a) to the Employer. Any monies, if and when
received shall be released to the Contractor (less only the said
percentage for professional fees, if any) by instalments on the
Interim Certificates issued by the Superintending Officer.

(e) The amounts released under sub-clause 38B.4(d) shall be

calculated as from the date of receipt of the monies in proportion
to the extent of work of restoration, replacement or repair carried
out by the Contractor. The Contractor shall not be entitled to any
payment in respect of such work of restoration, replacement or
repair and the removal and disposal of debris other than the
monies received under the said insurance policy or policies.

(f) The restoration, replacement or repair of such damage, loss or

injury and the removal and disposal of debris shall be treated as if
they were a Variation required by an instruction of the
Superintending Officer under Clause 28.1.

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38C INSURANCE OF EXISTING BUILDING OR
STRUCTURE – BY THE EMPLOYER
38C.1 Risks to be Insured Risks to be
Insured

(a) The Employer shall insure against all damage, loss or injury from
whatever cause arising in respect of the existing building or
structure within which the Works are to be executed together with
the contents in the existing building or structure owned by him or
for which he is responsible, for the full cost of reinstatement,
repair or replacement of such damage, loss or injury to such
existing building or structures.

(b) The Employer shall take out and maintain an All Risks Insurance
policy in respect of the whole of the Works as well as Equipment,
materials or goods intended for or connected with the Works and
Temporary Works (but excluding tools and Construction Plant
owned or hired by the Contractor or any sub-contractors) to the
value of not less than the Contract Sum plus the percentage for
professional fees and the amount for removal of debris (if any) as
stated in the Appendix.

(c) Such insurance policy or policies shall be effected and maintained

in the joint names of the Employer and the Contractor and the
sub-contractors from the Date of Commencement until the Date
of Practical Completion or the date of determination of the
employment of the Contractor under Clause 44 (Determination by
Employer), or Clause 45 (Determination by Contractor), or
termination of the Contract under Clause 46, whichever is the
earlier.

(d) Prior to the date of Tender the Employer shall make known to the
Contractor the terms of the said policy or policies including any
limitations or exclusions of liabilities or insurance excess and the
Contractor shall be deemed to have noted the same without
affecting the Contractor’s liability pursuant to Clause 34.

(e) The Contractor may take out such additional insurance as he

considers necessary, including any insurance in respect of his
liability for excess under Clause 38C.3 and for tools and
Construction Plant owned or hired by the Contractor or any sub-
contractors.

(f) The Employer shall maintain the said insurance and produce a
copy of such insurance policy or policies and receipts for the
premium paid to the Contractor.

(g) Each policy taken out pursuant to Clause 38C shall provide
expressly for the payment, in the first place, to the Employer of
any insurance money due under the policy.

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38C.2 Default by the Employer to Insure Default by the
Employer to
If the Employer shall at any time fail to take out or maintain a policy of Insure
insurance pursuant to Clause 38C.1, the Contractor may take out or
maintain the same on behalf of the Employer and upon the production of
the receipt of any premium paid by him shall be entitled to have the
amount added to the Contract Sum.

38C.3 Contractor liable for Insurance Excesses Contractor

liable for
The Contractor shall be fully responsible and liable for any insurance Insurance
excess stipulated in the insurance policy or policies provided under Excesses
Clause 38C, provided that the Contractor’s liability for such excess shall
be reduced in proportion to the extent to which any act or neglect of the
Employer or of any person for whom the Employer is responsible, has
contributed to the said damage, loss or injury.

38C.4 Damage, Loss or Injury to the Works Damage, Loss or

Injury to the
(a) If any damage, loss or injury affecting the whole or any part of Works
the Works or any Equipment, materials or goods is occasioned by
any one or more of the risks covered by the insurance policy or
policies referred to in Clause 38C.1 then upon discovering the
said damage, loss or injury, the Contractor shall immediately give
notice in writing to the Superintending Officer of the extent,
nature and location of such damage, loss or injury.

(b) The occurrence of such damage, loss or injury shall be

disregarded in computing any amounts payable to the Contractor
under or by virtue of the Contract.

(c) After any inspection required by the insurers or other persons

authorised by the insurers in respect of a claim under the said
insurance policy referred to in Clause 38C.1 has been completed,
the Contractor shall subject to sub-clause 34.2(c) proceed
immediately and with due diligence to make good with all
reasonable expedition such damage, loss or injury including
removal and disposal of any debris to the satisfaction of the
Superintending Officer and proceed with the construction and
completion of the Works.

(d) All monies from such insurance in respect of the damage, loss or
injury referred to in sub-clause 38C.4(a) paid to the Employer
shall be released to the Contractor (less only the said percentage
for professional fees, if any) by instalments on the Interim
Certificates issued by the Superintending Officer.

(e) The amounts released under 38C.4(d) shall be calculated as from

the date of receipt of the monies in proportion to the extent of
work of restoration, replacement or repair carried out by the
Contractor. The Contractor shall not be entitled to any payment
in respect of such work of restoration, replacement or repair and
the removal and disposal of debris other than the monies received
under the said insurance policy or policies.

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 (f) The restoration, replacement or repair of such damage, loss or
injury and the removal and disposal of debris shall be treated as if
they were a Variation required by an instruction of the
Superintending Officer under Clause 28.1.

39 ANTIQUITIES AND FOSSILS

39.1 Property and Protection of Discovery Property and
Protection
(a) All fossils, coins, articles of value or antiquity and structures and of Discovery
other remains or things of geological, historical or archaeological
interest discovered on the Site shall, as between the Employer and
the Contractor, be deemed to be the absolute property of the
Employer.

(b) The Contractor shall take all reasonable precautions to prevent his
workmen or any other persons from removing or damaging any
such article or thing and shall, immediately upon discovery and
before removal of such article or thing, inform the Superintending
Officer of such discovery and carry out the Superintending
Officer’s instructions for dealing with the same.

(c) Any work carried out by the Contractor in accordance with such
instructions shall be deemed a Variation.

40 ASSIGNMENT AND SUB-CONTRACTING

40.1 Assignment by Contractor Assignment by
Contractor
The Contractor shall not, without the prior consent of the Employer
(which consent shall be at the sole discretion of the Employer), assign
the whole or any part of the Contract, or any benefit or interest in or
under the Contract, otherwise than by:

(a) a security in favour of the Contractor’s bankers or any financial

institution or corporation of any payment due or to become due
under the Contract; or

(b) assignment to the Contractor’s insurers (in cases where the

insurers have discharged the Contractor’s loss or liability) of the
Contractor’s right to obtain relief from any other party liable.

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40.2 Assignment by Employer Assignment by
Employer
The Employer shall not, without the written consent of the Contractor
assign (whether in whole or in part) his rights, interests or benefits
under the Contract, otherwise than by a security in favour of the
Employer’s bankers or any financial institution or corporation. The
Contractor shall not withhold such consent unreasonably provided that
the Employer has produced reasonable evidence that the assignee will
fulfil the provisions of Option Module E (if applicable) in place of the
Employer.

40.3 Documents on Assignment Documents on

Assignment
The Employer and the Contractor each undertakes to execute within a
reasonable time following written request by the other those documents
necessary to effect such assignment pursuant to Clause 40.1 or Clause
40.2.

40. 4 Sub-contracting Sub-contracting

(a) The Contractor shall not sub-contract the whole of the Works.
Except where otherwise provided in the Contract, the Contractor
shall not sub-contract any part of the Works without the prior
consent of the Superintending Officer. Any such consent shall
not relieve the Contractor from any liability or obligation under
the Contract and he shall be responsible for the acts, defaults and
neglects of any sub-contractor, his agents, servants or workmen
as fully as if they were the acts, defaults or neglects of the
Contractor, his agents, servants or workmen.

Provided that the Contractor shall not be required to obtain such

consent for:

(i) the provision of labour;

(ii) the purchase of materials which are in accordance with

the standards specified in the Contract; or

(iii) the sub-contracting of any part of the Works for which

the Sub-contractor is nominated under the Contract.

(b) It shall be a condition in any sub-contract the consent of which

has been granted, that upon the determination of the Contractor’s
employment under the Contract the employment of the sub-
contractor under the sub-contract shall determine immediately
unless the Employer exercises his right for the assignment of
benefits of the sub-contract to him under Clause 44.3.

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41 PRIME COST AND PROVISIONAL SUMS
41.1 Prime Cost Sum Prime Cost Sum

(a) In respect of any and every Prime Cost or P.C. Sum provided in
the Contract, the amount due to the Contractor shall be
determined by deducting the said Prime Cost or P.C. Sum and
the relevant profit and/or attendance charges from the Contract
Sum and substituting for the same with the actual amount due to
the relevant Nominated Sub-Contractor or Nominated Supplier
as valued in accordance with the relevant sub-contract and the
sums due to the Contractor by way of profit and/or attendance
charges at the rates or prices stipulated in the Contract
Documents (if any).

(b) Where the Contractor in the ordinary course of his business

directly carries out works or supplies of any Equipment,
materials or goods for which Prime Cost or P.C. Sums are
provided in the Contract Documents and where such works are
set out in the Appendix and the Employer is willing to invite
tenders from the Contractor for such work or supplies then, the
Contractor shall be allowed to submit a tender for the said work
or supplies provided that it is without prejudice to the
Employer’s right to reject the lowest or any tender. If the tender
of the Contractor in respect of any of the Prime Cost or P.C.
Sum items is accepted by the Employer such tender shall be held
to include the profit and attendance charges and the Contractor
shall not be entitled to the profit and attendance charges as
contained in the Contract Documents notwithstanding the
provision of sub-clause 41.1(a).

41.2 Provisional Sums Provisional Sums

(a) In respect of every Provisional Sum the Superintending Officer

shall have the authority to issue instructions for the execution of
any work or for the supply of any Equipment, materials or goods
or services by the Contractor, in which case the Contractor shall
be entitled to an amount in accordance with the valuation
determined under Clause 29 (Valuation of Variations).

(b) The Superintending Officer may, at his absolute discretion, treat

any Provisional Sum included in the Contract as a Prime Cost or
P.C. Sum item, in which case the provisions of sub-clause
41.1(a) and Option Module C shall apply. If the sub-contract in
respect of the work or supplies is undertaken by a Nominated
Sub-Contractor or Nominated Supplier then, the Superintending
Officer shall unless otherwise specified in the Contract allow to
the Contractor the appropriate profit and attendance charges
based on the rates or prices for other Prime Cost Sum items
included in the Contract.

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42 PAYMENT
42.1 Statement of Work Done Statement of
Work Done
The Contractor shall submit to the Superintending Officer, at such
intervals as may be specified in the Appendix, a statement (hereinafter
referred to as the “Statement of Work Done”) in such form as the
Superintending Officer may from time to time prescribe. The
Statement of Work Done shall show the amounts to which the
Contractor considers himself to be entitled up to the last Day of the
relevant interval in respect of:

(a) the value of the works properly executed (including work

executed pursuant to Superintending Officer’s instructions under
Clause 28) subject to any agreement between the parties as to
stage payments for the Works or any part of the Works
stipulated in the Appendix;

(b) any other items shown and separately priced in the Contract
including those for Construction Plant, Temporary Works and
the like;

(c) the percentage (as stated in the Appendix) in respect of the value
of any Equipment, materials or goods delivered by the
Contractor on the Site for incorporation in the Works;

(d) any other sums to which the Contractor may consider himself to
be entitled under the Contract with itemisation of such sums
with reference to relevant provisions of the Contract; and

(e) any amount due to the Contractor under an Option Module.

42.2 Valuation and Interim Certificates Valuation and

Interim
(a) Within 21 Days of receiving the Statement of Work Done, the Certificates
Superintending Officer shall, subject to sub-clauses 42.2(c) and
(d) issue an Interim Certificate to the Employer (with a copy to
the Contractor) stating the amounts to which the Contractor is in
his opinion entitled in respect of each of the amounts in the
Statement of Work Done, less:

(i) Retention Monies under Clause 42.3;

(ii) any amount previously certified under this Clause 42;

and

(iii) any sum certified to be deducted under the Contract.

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 (b) The Interim Certificate shall only include the value of any
Equipment, materials or goods delivered by the Contractor to the
Site for incorporation in the Works from such time as they are
reasonably, properly and not prematurely brought to the Site and
are adequately protected against damage, loss or injury.

(c) Subject to Clause 42.1 and sub-clause 42.2(d), Interim

Certificates shall be issued by the Superintending Officer at such
intervals as may be specified in the Appendix up to the Date of
Practical Completion (or the Date of Practical Completion in
respect of the last section of the Works, in the case of
completion in sections). After the issue of the Certificate of
Practical Completion, Interim Certificates shall be issued as and
when further amounts are ascertained by the Superintending
Officer as payable to the Contractor from the Employer,
provided that the Superintending Officer shall not be required to
issue such Interim Certificate within one month of having issued
a previous Interim Certificate.

(d) Except for the Penultimate Certificate under Clause 42.6 or the
Final Certificate under Clause 42.8, the Superintending Officer
is not obliged to but may at his discretion issue any Interim
Certificate under sub-clause 42.2(a) if either:

(i) the total amounts to which the Contractor considers

himself entitled in the Statement of Work Done; or

(ii) the total amounts which the Superintending Officer in

his opinion considers the Contractor to be entitled,

is less than the minimum amount stated in the Appendix.

(e) If the Superintending Officer decides not to issue an Interim

Certificate he shall notify the Contractor in writing within 21
Days of receiving the Statement of Work Done.

Retention Monies Retention Monies

42.3

(a) Subject to sub-clause 42.3(d), the Retention Monies referred to

in Clause 42.2 shall be calculated by applying the Retention
Percentage to the amounts to which the Superintending Officer
has certified in respect of items listed in Clause 42.1.

(b) When the sum of the amounts so certified for retention equals or
exceeds the amount stated in the Appendix as Limit of Retention
Monies or that amount is reduced pursuant to Clause 22 or 23
(as the case may be) then no further amounts shall be certified
for retention by virtue of this Clause 42.3.

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 (c) The amount retained by virtue of Clause 42.3 shall be subjected
to the following rules:

(i) The Employer’s interest in the amount so retained shall

be fiduciary as trustee for the Contractor (but without
the obligation to invest).

(ii) The Employer shall at the time of payment in respect of

each Interim Certificate place the Retention Monies
(until the Limit of Retention is reached) in a separate
banking account which shall be designated as being held
by the Employer on trust. The Employer shall provide a
statement of this separate banking account to the
Contractor when making payments in respect of each
Interim Certificate. The Employer shall be entitled to
the full benefit of any interest accrued in the separate
banking account and shall be under no duty to account
for such interest to the Contractor.

(iii) The Contractor’s beneficial interest in the Retention

Monies shall be subject to the Employer’s right of
deduction for payment of any amounts as the
Superintending Officer may certify that the Employer is
entitled to deduct from such Retention Monies. When
the Employer exercises such right of deduction he shall
inform the Contractor in writing of the reason for such
deduction. The Employer’s right of deduction shall only
arise after the Retention Monies are due for release to
the Contractor in accordance with Clause 42.3 or after
determination of the Contractor’s employment under the
Contract.

(iv) Upon the issue of the Certificate of Practical Completion

under Clause 20.2 and subject to Employer’s right of
deduction under sub-clause 42.3(c)(iii), the Contractor
shall be entitled to the release of one half of the total
amount of the Retention Monies. The Superintending
Officer shall within 14 Days following the issue of the
Certificate of Practical Completion issue an Interim
Certificate under Clause 42 certifying such release.

(v) On the expiration of the Defects Liability Period or the

issue of the Certificate of Making Good Defects
pursuant to Clause 27, whichever is the later, and subject
to Employer’s right of deduction under sub-clause
42.3(c)(iii), the Contractor shall be entitled to the release
of the residual amount of the Retention Monies. The
Superintending Officer shall within 14 Days following
the issue of the Certificate of Making Good Defects
issue an Interim Certificate certifying such release or
include the same in the Final Certificate under Clause
42.8 (whichever is appropriate).

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 (d) The Retention Percentage referred to in sub-clause 42.3(a) shall
not apply to the following:

(i) royalties, damages or other monies payable under Clause

9.1;

(ii) fees paid in compliance with Statutory Requirements

under Clause 10.1;

(iii) amounts payable to the Contractor under Clauses 15.4,

15.6 and / or 27.5 notwithstanding it is deemed a
Variation;

(iv) Loss and Expense; and

(v) proceeds from any insurance policy or policies under

Clause 38A, 38B or 38C, whichever is applicable.

42.4 Correction of Certificates Correction of

Certificates
(a) The Superintending Officer may by any Interim Certificate make
any correction or modification in respect of any error whether
arithmetical or otherwise in any previous Interim Certificate
which has been issued by him and make such adjustments as
may be necessary in the amount of payment due and payable to
the Contractor to take into account any over or under valuation
in any previous Interim Certificate.

(b) Where the amount paid by the Employer to the Contractor

pursuant to any error in a previous Interim Certificate exceeds
any amount due and payable to the Contractor under any
subsequent Interim Certificate or the Final Account Certificate,
such excess shall be recoverable by the Employer from the
Contractor.

42.5 Statement at Completion Statement at

Completion
(a) Within 3 months of Date of Practical Completion (or the Date of
Practical Completion in respect of the last section of the Works,
in the case of completion in sections), the Contractor shall
submit to the Superintending Officer a statement (hereinafter
referred to as the “Statement at Completion”) in the form
prescribed by the Superintending Officer.

(b) The Statement at Completion shall set out in detail the final
amounts to which the Contractor considers himself to be entitled
in respect of all matters set out in Clause 42.1 showing all
adjustments made to the Contract Sum together with a complete
set of documents in support of such entitlement.

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 (c) If the Contractor fails to provide such complete set of documents
or the Superintending Officer considers that the documents
provided are inadequate then the Superintending Officer may
nevertheless make such assessment, valuation and certification
as shall be fair and reasonable on the basis of the information
available to him.

42.6 Penultimate Certificate Penultimate

Certificate
Within 6 months of receiving the Statement at Completion pursuant to
Clause 42.5 the Superintending Officer shall issue a certificate
(hereinafter referred to as the “Penultimate Certificate”) stating the
estimated final amount due to the Contractor from the Employer or to
the Employer from the Contractor, as the case may be.

42.7 Final Claim Statement Final Claim

Statement
(a) Within 30 Days of the issue of the Certificate of Making Good
Defects (or the Certificate of Making Good Defects in respect of
the last section of the Works, in the case of completion in
sections), the Contractor shall submit in writing to the
Superintending Officer a statement (hereinafter referred to as the
“Final Claim Statement”) in such form as the Superintending
Officer may prescribe.

(b) The Final Claim Statement shall set out in detail the final
amounts to which the Contractor considers himself to be entitled
in respect of all matters set out in Clause 42.1

(c) Insofar as documents in support of any claim has not been

previously provided then the Contractor shall provide such
supporting documents with the Final Claim Statement. If the
Contractor fails to provide such supporting documents or the
Superintending Officer considers that the documents provided
are inadequate then the Superintending Officer may nevertheless
make such assessment, valuation and certification as shall be fair
and reasonable on the basis of the information available to him.

(d) If the Contractor does not submit the Final Claim Statement
within the 30 Day period referred to in sub-clause 42.7(a) the
Employer may on the expiry of the said 30 Days give notice in
writing to the Contractor that if the Final Claim Statement is not
submitted by the Contractor within a further 30 Days from the
date of the written notice the Superintending Officer may
proceed to prepare the Final Account (as defined in Clause 42.8)
based on the information available to him in accordance with
Clause 42.8.

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42.8 Final Account and Final Certificate Final Account
and Final
(a) The Superintending Officer shall not later than 90 Days after the Certificate
issue of the Certificate of Making Good Defects (or the
Certificate of Making Good Defects in respect of the last section
of the Works, in the case of completion in sections) provide the
Contractor with the final account (hereinafter referred to as the
“Final Account”).

(b) The Final Account shall show:

(i) the adjustments which the Superintending Officer

considers should be made to the Contract Sum;

(ii) the amounts to which the Superintending Officer

considers that the Contractor is entitled under the express
provisions of the Contract;

(iii) the amounts to which the Superintending Officer

considers that the Employer is entitled under the express
provisions of the Contract.

(c) Within 30 Days of the receipt by the Contractor of the Final

Account, the Contractor shall notify the Superintending Officer
as to whether or not the amounts set out in the Final Account are
accepted by him. If the Contractor does not accept the amount,
he shall submit his grounds of disagreement in writing to the
Superintending Officer within the said 30 Days.

(d) The Superintending Officer may, subsequent to the receipt of the

grounds of disagreement amend the amount disagreed and issue
to the Contractor a notice of amendment to the Final Account or,
if he decides not to issue a notice of amendment to the Final
Account, he shall inform the Contractor accordingly. The
provisions of sub-clause 42.8(c) shall apply to the notice of
amendment to the Final Account.

(e) The Superintending Officer shall issue a Final Certificate (and

inform each Nominated Sub-Contractor, if applicable) of the
date of its issue within 30 Days:

(i) of acceptance by the Contractor of the Final Account or

of the amendment to the Final Account, whichever is the
later; or

(ii) after the expiry of the 30 Day period following the receipt
by the Contractor of the Final Account during which no
notification of disagreement has been received from the
Contractor; or

(iii) after the Superintending Officer has informed the

Contractor of the amendment to the Final Account and /
or that he would not issue a notice of amendment to the
Final Account (as the case may be) pursuant to sub-clause
42.8(d).
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 (f) The Final Certificate shall stipulate the difference between:

(i) the Contract Sum as set out in the Final Account; and

(ii) the amount so far certified for payment (whether or not

paid),

and the difference shall be a debt payable by the Employer to the

Contractor or by the Contractor to the Employer as the case may
be.

(g) For the avoidance of doubt, the Superintending Officer shall not
be obliged to issue the Final Certificate before the Certificate of
Making Good Defects referred to in Clause 27.6 (or the
Certificate of Making Good Defects in respect of the last section
of the Works, in the case of completion in sections) is issued,
and the issue of the Final Account before the issue of the said
Certificate of Making Good Defects shall not relieve the
Contractor from his obligations and liabilities arising during the
Defects Liability Period.

42.9 Period of Honouring Certificate Period of

Honouring
(a) The amount due to the Contractor under any certificate issued by Certificate
the Superintending Officer pursuant to Clause 42 or any other
term of the Contract shall (subject to the Employer’s right of
recovery under Clause 48) be paid by the Employer to the
Contractor within 21 Days or such other time period as may be
stipulated in the Appendix after the date of such certificate
(hereinafter referred to as “Period of Honouring Certificate”)

(b) In the event that the Employer fails to make the whole or any
part of the payment due to the Contractor within the Period of
Honouring Certificate, the Employer shall pay to the Contractor
in addition to the amount certified, simple interest at the rate
stated in the Appendix in respect of any sum unpaid from the
date by which the same should have been paid until the payment
of such sum.

(c) The Contractor’s right to interest under sub-clause 42.9(b) shall

be without prejudice to his rights in relation to the Payment
Bond if Option Module E is applicable, or to his rights of
suspension of the performance of his obligations under the
Contract to the Employer pursuant to Clause 42.10, or to his
rights of determination of his own employment pursuant to
Clause 45.1.

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42.10 Suspension for Non Payment Suspension for
Non Payment
(a) If the Employer fails or neglects to make payment of any amount
due to the Contractor within the Period of Honouring Certificate
(unless and to the extent that under the terms of the Contract the
said Interim Certificate has been corrected or modified by a later
Interim Certificate which has been issued pursuant to Clause
42.4 or the Employer may be empowered by the provisions of
the Contract either not to pay, or to make deductions from, the
sums shown as due in the certificate) and such failure or neglect
shall continue for 14 Days from the date by which the same
should have been paid, then the Contractor may give notice of
his intention to suspend the execution of the Works. If the
Employer shall continue such default for 14 Days after the
receipt of such notice, then the Contractor may suspend wholly
or partly the execution of the Works or reduce the rate of
execution of the Works

(b) If the Contractor suspends work or reduces the rate of work

under sub-clause 42.10(a) and if the Contractor has not
exercised his right of determination under Clause 45, and the
Employer subsequently pays the amount due including interest
pursuant to sub-clause 42.9(b) the Contractor's entitlement
under sub-clause 42.10(a) shall lapse, and the Contractor shall
resume normal working as soon as is reasonably possible.

(c) If the Contractor suspends work in accordance with the

provisions of sub-clause 42.10(a), the following provisions shall
apply:

(i) The Contractor shall protect and secure the Works

during the period of suspension;

(ii) The Time for Completion shall be deemed to be

extended by the period of such suspension and
reasonable period for resumption of normal working;
and

(iii) If the Contractor incurs Loss and Expense arising from

such suspension and resumption including that incurred
pursuant to sub-clause 42.10(c)(i) then subject to Clause
32 the amount of such Loss and Expense shall be
ascertained by the Superintending Officer and added to
the Contract Sum.

(d) The Contractor’s right to suspend work under Clause 42.10 is

without prejudice to the right of determination under Clause 45
or any other right or remedy which the Contractor may possess
under the Contract nor a condition precedent to the right of
determination under Clause 45.

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42.11 Deemed Payment Deemed Payment

In the event the Employer exercising his right of recovery in respect of

any payment due to the Contractor in accordance with this Clause 42,
the amount so recovered or deducted by the Employer shall be deemed
as payment made by the Employer to the Contractor under this Clause
42.

42.12 Delay in Certification Delay in

Certification
The Employer shall be liable to pay to the Contractor damages, whether
by way of interest or otherwise, in the event of any failure or delay by
the Superintending Officer in certifying any payment due or payable to
the Contractor pursuant to the provisions of Clause 42.

42.13 Effect of payment other than payment of Final Certificate Effect of

payments other
Other than payment pursuant to the Final Certificate under Clause 42.8, than payment of
no payment by the Employer shall of itself be conclusive evidence that Final Certificate
any design (to the extent required by the Contract), works executed, or
any Equipment, materials or goods to which it relates are in accordance
with the Contract.

43 EFFECT OF SUPERINTENDING OFICER’S

CERTIFICATE
43.1 Certificate Not Conclusive Certificate Not
Conclusive
Subject to Clause 43.2, no certificate of the Superintending Officer
under any provision of the Contract shall be considered as conclusive
evidence as to the sufficiency of any design (to the extent required by
the Contract), works executed, or any Equipment, materials or goods to
which it relates, nor shall it relieve the Contractor from his liability to
amend or make good Defects.

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43.2 Effect of Final Certificate Effect of
Final Certificate
(a) Notwithstanding Clause 43.1, the Final Certificate when it is
issued by the Superintending Officer shall, except as provided in
sub-clauses 43.2(b) and (c), have effect in any proceedings
arising out of or in connection with the Contract (whether by
mediation, arbitration or other proceedings pursuant to Clause
47) as conclusive evidence that:

(i) where it is stated in the Contract Documents that the

quality of works executed, or any Equipment, materials
or goods are to be to the reasonable satisfaction of the
Superintending Officer and/or the Employer the same
are to such satisfaction; and

(iii) all and only such extension of time (if any) as are due
under Clause 24 have been given; and

(iii) that the reimbursement of Loss and Expense, if any, to

the Contractor pursuant to Clause 32 is in final
settlement of all and any claims which the Contractor
has or may have arising out of the occurrence of any of
the matters referred to in Clause 31.1 whether such
claim be for breach of contract, duty of care, statutory
duty or otherwise.

(b) If any mediation, arbitration or other proceedings pursuant to

Clause 47 have been commenced by either party prior to the
issue of the Final Certificate under Clause 42.8, the said Final
Certificate shall have the same effect as stipulated in sub-clause
43.2(a) after either:

(i) such proceedings have been concluded, whereupon the

Final Certificate shall be subject to and incorporate the
terms of any agreement, award or judgement in or
settlement of such proceedings; or

(ii) a period of 12 months during which neither party has

taken any further step in such proceedings, whereupon
the Final Certificate shall be subject to any terms agreed
in partial settlement of the said proceedings (if any);

whichever is the earlier.

(c) Unless any mediation, arbitration or other proceedings pursuant

to Clause 47 have been commenced by either party within 30
Days after the Final Certificate has been issued, the Final
Certificate shall have effect as conclusive evidence of all matters
except only in respect of those matters to which these
proceedings relate.

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44 DETERMINATION BY EMPLOYER
44.1 Determination Due to Default By Contractor Determination
Due to Default By
(a) Without prejudice to any other rights or remedies which the Contractor
Employer may possess, if the Contractor defaults in any or more
of the following respects:

(i) without reasonable cause he fails to commence the

Works in accordance with the Contract; or

(ii) he fails to provide the Performance Security Deposit (if

Option Module F is applicable) in accordance with
Clause F1; or

(iii) without reasonable cause he wholly suspends the

carrying out of the Works before completion; or

(iv) he fails to proceed with the design (to the extent

required by the Contract) and/or the execution and
completion of the Works with due diligence and
expedition; or

(v) he persistently refuses or neglects to comply with a

notice or an instruction from the Superintending Officer
under Clause 15.7 requiring him to remove work or
Equipment, materials or goods which are defective or do
not meet the requirements of the Contract; or

(vi) he fails to comply with the provisions of Clause 40.1

and/or 40.4; or

(vii) he persistently refuses or fails to comply with a

instruction from the Superintending Officer which the
Superintending Officer is empowered to give under the
Contract;

then the Superintending Officer may give a notice specifying the

default or defaults (hereinafter referred to as the “Specified
Contractor’s Default”).

(b) If the Contractor continues with the Specified Contractor’s

Default for 14 Days from the receipt of the notice under sub-
clause 44.1(a), then the Employer without prejudice to any other
rights or remedies may within 10 Days from the expiry of the
said 14 Day period by further notice to the Contractor determine
the employment of the Contractor under the Contract. Such
determination shall take effect on the date of the receipt of such
further notice.

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 (c) If:

(i) the Contractor ends the Specified Contractor’s Default,

or

(ii) the Employer does not give the further notice referred to
in sub-clause 44.1(b),

and the Contractor repeats the Specified Contractor’s Default

(whether previously repeated or not) then, upon or within a
reasonable time after such repetition, the Employer without
prejudice to any other rights or remedies may by a further notice
determine the employment of the Contractor under the Contract.
Such determination shall take effect on the date of the receipt of
such further notice.

(d) A notice of determination under Clause 44.1 shall not be given

unreasonably or vexatiously.

44.2 Determination Due to Bankruptcy or Insolvency Determination

Due to
In the event the Contractor: Bankruptcy or
Insolvency
(a) Commits an act of bankruptcy or becomes bankrupt; or

(b) Becomes insolvent or compounds with or makes arrangement

with his creditors; or

(c) being a company, is having a winding up order (other than for

the purpose of amalgamation or reconstruction) made against
him; or

(d) is having a provisional liquidator, receiver or manager of his

business or undertaking duly appointed, or possession taken by
or on behalf of creditors or debenture holders secured by a
floating charge of any property comprised in or subject of the
said floating charge;

then the Employer may without prejudice to any other rights or

remedies by notice forthwith determine the employment of the
Contractor under the Contract. Such determination shall take effect on
the date of the receipt of such notice.

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44.3 Effects of Determination of Contractor’s Employment Effects of
Determination of
In the event of the determination of the Contractor’s employment under Contractor’s
Clause 44.1 or 44.2, whether or not the validity of such determination is Employment
contested by the Contractor, the following shall be the respective rights
and duties of the Employer and the Contractor:

(a) The Employer shall be entitled to repossess the Site and the
Contractor shall immediately cease all operations on the Works,
remove his personnel and workmen from and yield up
possession of the Site leaving any Construction Plant,
Temporary Works, temporary buildings, structures, tools, goods
and all unfixed Equipment, materials or goods left on the Site,
except only such as he may at any time be specifically instructed
by the Superintending Officer to remove from the Site.

(b) If the Contractor fails to comply with the instruction to remove

the Construction Plant, Temporary Works, temporary buildings,
structures, tools, goods, equipment and all unfixed Equipment,
materials or goods within a reasonable time after such
instruction has been issued pursuant to sub-clause 44.3(a) then
the Employer may remove and sell any of the same which are
deemed the property of the Employer under Clause 33.2 and
apply the proceeds of sale in or towards the satisfaction of any
sums due or becoming due to him from the Contractor under the
Contract.

(c) The Employer may carry out and complete the Works himself or
through the employment of other contractors and he or they may
use any of the Construction Plant, Temporary Works, temporary
buildings, structures, tools, goods and any unfixed Equipment,
materials or goods left on the Site –

(i) which are deemed the property of the Employer under

Clause 33.2; and / or

(ii) in respect of which the Employer has exercised his right

under Clause 33.4 to take over the hire of such
Construction Plant or Temporary Works;

and may purchase all other Equipment, materials or goods

necessary for the carrying out and completion of the Works.

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 (d) The Contractor shall, if so required by the Employer, assign to
the Employer without payment the benefit of any agreement for
the supply of any Equipment, materials or goods and/or for the
execution of any work for the purpose of the Contract. In any
case, the Employer shall have the power, but shall not be
obliged, to pay any supplier or sub-contractor, whether
nominated or directly engaged by the Contractor, for any
Equipment, materials or goods and/or any work executed for the
purpose of the Contract (whether before or after the date of
determination) for which the Contractor has failed to make
payment. The Contractor shall allow or pay to the Employer all
such payments made under this sub-clause 44.3(d).

(e) The Superintending Officer shall, as soon as may be practicable

after such repossession of the Site by the Employer pursuant to
this Clause 44.3, ascertain what amount (if any) had at the time
of such repossession been reasonably earned by or would
reasonably accrue to the Contractor in respect of:

(i) work then properly done by him under the Contract,

(ii) the value of any of the unfixed or partially fixed

Equipment, materials or goods,

(iii) the value of any Construction Plant, Temporary Works,

temporary buildings, structures, or tools which have
been deemed to become the property of the Employer
under Clause 33.2; and

(iv) the amount received from any proceeds of sale under

sub-clause 44.3(a).

(f) No sum shall be certified as due to the Contractor nor shall the
Employer be liable to pay to the Contractor any sum, whether or
not certified by the Superintending Officer (including damages
and amounts for which the Employer was liable at the date of
determination) in respect of the Contract until the expiry of the
Defects Liability Period of the whole of the Works and
thereafter until the Superintending Officer has issued the
Certificate of Termination Costs in accordance with Clause 44.4.

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44.4 Certificate of Termination Costs Certificate of
Termination
(a) As soon as the arrangement for the completion of the Works Costs
made by the Employer enables the Superintending Officer to
make a reasonably accurate assessment of the ultimate cost to
the Employer of completing the Works following the
determination of Contractor’s employment and the engagement
of other contractors, and the amount of direct loss and/or damage
caused to the Employer due to the determination has been
ascertained by the Superintending Officer then the
Superintending Officer shall issue a certificate (hereinafter
referred to as the “Certificate of Termination Cost”) stating the
Completion Cost (hereinafter defined) and the Final Contract
Sum (hereinafter defined).

(b) The Completion Cost comprises the following sums, costs or

expenditure:

(i) the sums previously paid to the Contractor by the

Employer,

(ii) the sums paid or payable to other contractors engaged

by the Employer to complete the Works,

(iii) any sums paid to sub-contractors or suppliers under sub-

clause 44.3(d)

(iv) any other direct costs or expenditure incurred or to be

incurred by the Employer in completing the Works; and

(v) the amount of direct loss and/or damage caused to the

Employer due to the determination.

(c) The Final Contract Sum comprises the following amounts or

sums:

(i) the amount which would have been payable under the
Contract on completion in accordance with the Contract,
allowing for any Variations or other matters which
would have resulted in the adjustment of the original
Contract Sum; and

(ii) any other sums which the Employer might be entitled

under the terms of the Contract to deduct from the
original Contract Sum,

had the Contractor’s employment not been determined.

(d) The Certificate of Termination Cost shall state the difference

between the Final Contract Sum and the Completion Costs. If
the Final Contract Sum is less than the Completion Cost, the
difference shall be a debt payable by the Contractor to the
Employer and if greater the difference shall be a debt payable by
the Employer to the Contractor.

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44.5 Notices under Clause 44 Notices under
Clause 44
Any notice or further notice under Clause 44 shall be given by:

(a) hand delivery or courier and an acknowledgement of receipt

obtained; or

(b) registered post in which case it shall be deemed to have been

received 7 Days after the date of posting.

45 DETERMINATION BY THE CONTRACTOR

45.1 Determination by Contractor with Notice Determination by
Contractor with
(a) If the Employer defaults in any or more of the following Notice
respects:

(i) he does not pay to the Contractor the amount due on any
certificate within the Period of Honouring Certificate
stated in the Appendix (unless and to the extent that
under the terms of the Contract the said Interim
Certificate has been modified or corrected by a later
Interim Certificate or the Employer may be expressly
empowered either not to pay, or to make deductions
from, the sum shown as due in the Interim Certificate);
or

(ii) he interferes with or influences or obstructs the issue of

a certificate by the Superintending Officer; or

(iii) he does not within 30 Days of the death of the

Superintending Officer or his ceasing to be the
Superintending Officer appoint a succeeding
Superintending Officer for the purposes of the Contract;

then the Contractor may give a notice specifying the default or

defaults (hereinafter referred to as the “Specified Employer’s
Default”).

(b) If:

(i) the Employer continues with the Specified Employer’s

Default for 14 Days from the receipt of the notice under
sub-clause 45.1(a); or

(ii) the Specified Suspension Event under Clause 19.2

continues or permission to proceed with the Works is
not granted by the Superintending Officer on the expiry
of the 14-Day notice period given by the Contractor,

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 then the Contractor without prejudice to any other rights or
remedies may on, or within 10 Days from, the expiry of the said
14-Day notice period by further notice to the Employer
determine the employment of the Contractor under the Contract.
Such determination shall take effect on the date of the receipt of
such further notice.

(c) If:

(i) the Employer ends the Specified Employer’s Default

referred to in sub-clause 45.1(a), or

(ii) the Specified Suspension Event referred to in Clause

19.2 ceases, or

(iii) the Contractor does not give the further notice referred
to in sub-clause 45.1(b),

and the Employer repeats a Specified Employer’s Default

(whether previously repeated or not) or the Specified Suspension
Event is repeated for whatever period (whether previously
repeated or not) then, upon or within a reasonable time after
such repetition, the Contractor may without prejudice to any
other rights or remedies by a notice to the Employer determine
the employment of the Contractor under the Contract. Such
determination shall take effect on the date of the receipt of such
further notice.

(d) A notice of determination under Clause 45.1 shall not be given

unreasonably or vexatiously.

45.2 Determination by Contractor Without Notice Determination by

Contractor
Without Notice
If the Employer:

(a) Becomes bankrupt or insolvent or makes a composition or

arrangement with his creditors; or

(b) becomes insolvent or compounds with or makes arrangement

with his creditors; or

(c) being a company, is having a winding up order (other than for

the purpose of amalgamation or reconstruction) made against it;
or

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 (d) is having a provisional liquidator, receiver or manager of his
business or undertaking duly appointed, or possession taken by
or on behalf of creditors or debenture holders secured by a
floating charge of any property comprised in or subject of the
said floating charge;

then the Contractor may without prejudice to any other rights or

remedies by notice forthwith determine the employment of the
Contractor under the Contract. Such determination shall take effect on
the date of the receipt of such notice.

45.3 Effects of Determination Effects of

Determination
In the event of the determination of the Contractor’s employment under
Clause 45.1 or 45.2, whether or not the validity of such determination is
contested by the Employer and without prejudice to the accrued rights
or remedies of either party the following shall be the respective rights
and liabilities of the Contractor and the Employer:

(a) The Contractor shall with all reasonable dispatch remove from
the Site all his Construction Plant, Temporary Works, temporary
buildings, tools, equipment, materials or goods and shall give
facilities for his sub-contractors to do the same (subject always
to sub-clause 45.3(b)(iv)) and indemnify the Employer in respect
of injury, death or damage caused by such removal to the extent
of his liability under Clause 35.

(b) The Superintending Officer shall subject to compliance by the

Contractor with Clause 32 certify payment to the Contractor in
respect of the following items, after taking into account amounts
previously paid to the Contractor under the Contract:

(i) The total value of work properly completed at the date

of determination, such value to be computed as if it were
a valuation in respect of the amounts to be stated as due
in an Interim Certificate issued under Clause 42 but after
taking account of any amounts referred to in sub-clauses
45.3(b)(iii) to (vi);

(ii) The total value of work begun and executed but partially
completed at the date of determination, the value being
ascertained in accordance with Clause 29 as if such
work were a Variation required by the Superintending
Officer under Clause 28 but after taking account of any
amounts referred to in sub-clauses 45.3(b)(iii) to (vi);

(iii) Any sum ascertained in respect of Loss and Expense

under Clause 32 (whether ascertained before or after the
date of determination);

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 (iv) The total cost of Equipment, materials or goods properly
ordered for the Works for which the Contractor has paid
or for which the Contractor is legally bound to pay, and
on such payment by the Employer any Equipment,
materials or goods so paid shall become the property of
the Employer;

(v) The reasonable cost of removal under sub-clause

45.3(a);

(vi) any other direct loss and/or damage caused to the

Contractor arising out of or in connection with or by
consequence of such determination.

(c) In addition to all other remedies available to the Contractor, the

Contractor may upon such determination take possession of and
shall have a lien upon all unfixed Equipment, materials or goods,
which may have become the property of the Employer under
Clause 33 until the Employer has settled all payment due to the
Contractor.

45.4 Notices under Clause 45 Notices under

Clause 45
Any notice or further notice under Clause 45 shall be given by:

(a) hand delivery or courier and an acknowledgement of receipt

obtained; or

(b) registered post in which case it shall be deemed to have been

received 7 Days after the date of posting.

46 TERMINATION WITHOUT DEFAULT

46.1 Right of the Employer to Terminate Right of the
Employer to
The Employer may at any time, give to the Contractor 30-Day notice of Termination
termination of the Contract. Upon the expiry of 30 Days from the
receipt of such notice the Contract shall be terminated.

46.2 Effects of Termination Effects of

Termination
In the event of termination under Clause 46.1 the provisions of Clause
45.3 shall apply.

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47 SETTLEMENT OF DISPUTES
47.1 Reference to the Superintending Officer Reference to the
Superintending
(a) Subject to Clause 43.2 and Clause 47.4, if a dispute or difference Officer
of whatsoever kind shall arise between the Employer or the
Superintending Officer and the Contractor in connection with or
arising out of the Contract or, whether during the execution of
the Works or after their completion and whether before or after
any determination of the Contractor’s employment, including
any dispute or difference as to any opinion, instruction,
determination, decision, certificate or valuation of the
Superintending Officer, it shall in the first place be referred by
either party to the Superintending Officer for his decision. Such
reference shall state that it is made pursuant to this Clause 47.1
and a copy shall be sent to the other party to the Contract.

(b) No later than the expiry of 30 Days after the date upon which the
Superintending Officer has received such reference, the
Superintending Officer shall give his decision in writing to the
Employer and to the Contractor which shall be final and binding
on the parties to the Contract unless, as hereinafter provided,
either party requires that the decision should be referred to
mediation under Clause 47.2

(c) Unless the Contract has already been repudiated or the

employment of the Contractor determined or the execution of the
Works completed, the Contractor shall, in case of any reference,
continue to proceed with the Works in accordance with his
obligations under the Contract and the Contractor and the
Employer shall give effect forthwith to every decision of the
Superintending Officer unless and until the same shall be revised
by mediation under Clause 47.2 or an arbitrator under Clause
47.3 (or as may be otherwise ordered by a tribunal of competent
jurisdiction).

47.2 Reference to Mediation Reference to

Mediation
(a) If the Superintending Officer fails to give his decision by the
expiry of the 30-Day period following the date on which the
Superintending Officer received the reference to him of any
dispute or difference, or if either party be dissatisfied with any
decision of the Superintending Officer pursuant to Clause 47.1
(such dissatisfaction shall be deemed a dispute), then the
Employer or the Contractor may within a further 90 Days after
the expiration of the said 30 Day period or 90 Days after
receiving the Superintending Officer’s decision, as the case may
be, give notice to the other party with a copy to the
Superintending Officer of his intention to refer the dispute or
difference to mediation (hereinafter referred to as the “Request
for Mediation”).

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 (b) Upon service of a Request for Mediation the dispute or
difference shall be subjected to mediation between the parties in
accordance with the CIDB Mediation Rules. Provided however
if the Request for Mediation is served after the expiration of the
90 Day time limit stipulated by sub-clause 47.2(a) the recipient
shall not be obliged to participate in a mediation and the
mediation shall not proceed further without the recipient’s
written consent.

(c) Upon the dispute or difference being resolved in mediation, such

resolution shall be recorded in a settlement agreement and the
parties shall give effect to this agreement accordingly. A copy of
the settlement agreement shall be given to Superintending
Officer who shall take notice of the same and where applicable
give effect to the terms of the settlement agreement in
discharging his duties and authorities under the Contract.

(d) It shall be a condition precedent to the commencement of

arbitration proceedings under Clause 47.3 that the issues arising
in the dispute or difference shall have been the subject of a
reference to mediation in accordance with Clause 47.2. If the
parties fail to achieve any settlement at the mediation then upon
the termination of the mediation pursuant to the CIDB Mediation
Rules, either party may refer the dispute or difference to
arbitration and the final decision of an arbitrator under Clause
47.3.

47.3 Reference to Arbitration Reference to

Arbitration

(a) Subject to sub-clause 47.2(c), the Employer or the Contractor

may within 14 Days after the termination of the mediation, give
notice to the other party with a copy to the Superintending
Officer of his intention to refer the dispute or difference to
arbitration (hereinafter referred to the “Notice of Arbitration”)
and the final decision of an arbitrator. The arbitrator may be
agreed upon by the parties and where the parties fail to agree
within 14 Days of the Notice of Arbitration then either party
may request the Appointer of Arbitrator named in the Appendix
to appoint an arbitrator.

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 (b) Subject to Clause 47.4, arbitration proceedings shall not, without
the other party’s consent in writing, be initiated before the Date
of Practical Completion of the Works or alleged Date of
Practical Completion (or if there is more than one such Date of
Practical Completion, the latest) or the determination or alleged
determination of the Contractor's employment under the
Contract except on the question of:

(i) whether or not the issue of an instruction is empowered

by the Contract; or

(ii) whether or not a payment has been improperly withheld;

or

(iii) whether a payment is not in accordance with the

Contract; or

(iv) whether either party has withheld or delayed a consent

where such consent is not to be unreasonably withheld
or delayed.

(c) The Notice of Arbitration under this Clause 47.3 shall be

deemed to be a submission to arbitration within the meaning of
the Arbitration Act 1952 or any amendment or re-enactment of
the said Act.

(d) The arbitrator shall have power to –

(i) open up, review and revise any certificate, opinion,

decision, requisition or notice; and

(ii) determine all matters in dispute which shall be

submitted to him, and of which notice shall have been
given in accordance with sub-clause 47.3(a) in the same
manner as if no such certificate, opinion, decision,
requisition or notice had been given; and

(iii) award damages including interest or financing charges

for the period before and after the date of the award at
such rate as he may in his discretion consider to be
appropriate.

(e) Upon every or any such reference the costs incidental to the
arbitration and award shall be the discretion of the arbitrator who
may determine the amount of costs, or direct the amount to be
taxed as between solicitor and client or as between party and
party, and shall direct by whom and to whom and in what
manner the same shall be borne and paid.

(f) The award of the arbitrator shall be final and binding on the
parties.

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 (g) In the event of:

(i) death of the arbitrator; or

(ii) refusal or incapability of the arbitrator to act; or

(iii) removal of the arbitrator by the court or by mutual

agreement of the parties;

the parties shall mutually agree on a replacement. If the parties

fail to agree on a replacement within 14 Days of any of the said
events then either party may request the Appointer of Arbitrator
named in the Appendix to appoint such replacement.

(h) The place of arbitration shall be in the place named in the

Appendix.

47.4 Settlement of Dispute in the Event of Determination Arbitration in the

Event of
Notwithstanding Clause 47.1, if the dispute or difference concerns the Determination
determination of the employment of the Contractor or the termination,
repudiation or abandonment of the Contract by either party, such
dispute or difference shall not be referred to the Superintending Officer
for decision pursuant to Clause 47.1 but shall be referred to mediation
and if not so resolved pursuant to Clause 47.2 then to arbitration in
accordance with Clause 47.3.

48 RECOVERY BY THE EMPLOYER

48.1 Employer’s Right To Recovery Employer’s Right
To Recovery
Wherever the Contract provides for the Employer to recover any
amount from the Contractor such amount may be deducted from any
sum due or to become due at any time thereafter from the Employer to
the Contractor in accordance with the provisions of the Contract. Such
sums may in any event be recovered by the Employer from the
Contractor as a debt.

49 GOVERNING LAW
49.1 Law Law

The law governing the Contract shall be the law of Malaysia, and the
parties hereby submit to the jurisdiction of the Malaysian Courts for the
purpose of any action or proceedings arising out of the Contract.

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50 TAXES AND DUTIES
50.1 Payment of Custom Duties and Taxes Payment of
Custom Duties
(a) The Contractor shall be required to pay all customs duties and and Taxes
sales tax in respect of:

(i) all Equipment, materials or goods for incorporation in

the Works; and

(ii) Construction Plant or Temporary Works for use in

connection with the Works.

(b) The Contractor will be required to pay all taxes payable by

himself or his agents and sub-contractors and suppliers as are
chargeable under the laws of Malaysia for the time being in
force. The Contract Sum shall be deemed to include for payment
of all such taxes by the Contractor.

51 MISCELLANEOUS PROVISIONS
51.1 Business Ethics Business Ethics

The Contractor, his servants or agents and his sub-contractors are not
expected or authorised to take any action on behalf of the Employer
which violate applicable laws. All financial statements, reports, billings
and other documents rendered shall properly reflect the facts about all
activities and transactions handled for the account of the Employer.

51.2 Declaration Against Waiver Declaration

Against Waiver
The condonation by the Employer or the Superintending Officer of any
breach or breaches by the Contractor or his sub-contractor of any of the
stipulations and conditions contained in the Contract shall in no way
prejudice or affect or be construed as a waiver of the Employer’s rights,
powers and remedies under the Contract in respect of any other breach
or breaches of the Contract.

51.3 Notice of Garnishment Notice of

Garnishment
The Contractor shall not cause permit or suffer to be issued in
satisfaction of any decree judgment or other order given or to be given
against the Contractor any notice of garnishment binding any property
of the Contractor which is in the possession of the Employer.

51.4 Stamp Duties Stamp Duties

The proper Stamp Duty, if any, on the Contract shall be borne by the
Employer.

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 APPENDIX

CLAUSE

PERCENTAGE ON COST FOR LOSS

AND EXPENSE 1.1 …………………………………..

OPTION MODULES 1.1

Option Module A Applicable/Not Applicable*

Option Module B Applicable/Not Applicable*
Option Module C Applicable/Not Applicable*
Option Module D Applicable/Not Applicable*
Option Module E Applicable/Not Applicable*
Option Module F Applicable/Not Applicable*

(*Strike out as appropriate)

LIMITATIONS ON THE AUTHORITY …………………………………..

OF THE SUPERINTENDING OFFICER 2.1 …………………………………..
…………………………………..

DATE OF COMMENCMENT 17.1

Whole of the Works …………………………………..

Section of the Works: Date of Commencement:

……………………………………… …………………………………..

……………………………………… …………………………………..

……………………………………… …………………………………..

SUSPENSION PERIOD 19.2

(3 months if none stated) …………………………………..

TIME FOR COMPLETION 20

Whole of the Works …………………………………..

Section of the Works: Time for Completion:

……………………………………… …………………………………..

……………………………………… …………………………………..

……………………………………… …………………………………..

LIQUIDATED DAMAGES 26.2

Whole of the Works …………………………………..

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Section of the Works: Liquidated Damages:

……………………………………… …………………………………..

……………………………………… …………………………………..

……………………………………… …………………………………..

DEFECTS LIABILITY PERIOD 27 …………………………………..

(12 months if none stated)

LIMITATIONS ON EXTENT OF …………………………………..

LIABILITY FOR ANY ONE 36.1
ACCIDENT …………………………………..

INSURANCE EXCESS 36.1 …………………………………..

INSURANCE OF THE WORKS 38A Applicable/Not Applicable*

38B Applicable/Not Applicable*
38C Applicable/Not Applicable*
(*Strike out as appropriate)

AMOUNT TO BE ADDED TO
CONTRACT SUM AS INSURED
AMOUNT: 38A.1 or
38B.1or 38C.1
Percentage in respect of Professional …………………………………..
Fees

Amount for removal of Debris …………………………………..

P C SUM ITEM FOR WHICH …………………………………..

CONTRACTOR IS ALLOWED TO 41.1 …………………………………..
TENDER …………………………………..

INTERVAL FOR SUBMISSION OF

STATEMENT OF WORK DONE 42.1 …………………………………..
(1 month if none stated)

STAGE PAYMENTS: 42.1(a)

Stage: Percentage:
………………………………………… ……………………………………
………………………………………… ……………………………………
………………………………………… ……………………
………………………………………… ……………………………………
………………………………………… ……………………………………
………………………………………… ……………………

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VALUE OF EQUIPMENT,
MATERIALS AND GOODS 42.1 (c)
INCLUDED IN INTERIM
CERTIFICATE:

Equipment, Materials and Goods: Percentage of the Total Value:

……………………………………… …………………………………..
……………………………………… …………………………………..
……………………………………… …………………………………..
……………………………………… …………………………………..
……………………………………… …………………………………..
……………………………………… …………………………………..

MINIMUM AMOUNT FOR INTERIM

PAYMENT 42.2(d)

First Interim Payment …………………………………..

Subsequent Interim Payment …………………………………..

RETENTION MONIES 42.3

Retention Percentage
(10% if none stated) …………………………………..

Limit of Retention Monies

(5% of Contract Sum if none stated) …………………………………..

PERIOD FOR HONOURING 42.9(a)

CERTIFICATE …………………………………..
(21 Days if none stated)

RATE OF INTEREST UPON UNPAID 42.9(b)

SUM
(2% above prevailing base lending rate of …………………………………..
Maybank Berhad, if none stated)

APPOINTER OF ARBITRATOR 47.3 …………………………………..

(Director of Kuala Lumpur Regional
Centre for Arbitration, if none stated) …………………………………..

PLACE OF ARBITRATION 47.3 ………………………………….

(Kuala Lumpur, if none stated)

PAYMENT BOND E1
(if Option Module E is applicable) …………………………………..
(5% of Contract Sum, if none stated)

AMOUNT OF PERFORMANCE
SECURITY DEPOSIT F1 …………………………………..
(if Option Module F is applicable)
(5% of Contract Sum, if none stated)

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 OPTION MODULE A
BILLS OF QUANTITIES

A1. Definitions and Interpretations Definitions and

Interpretations
The term “Bills of Quantities” means the priced Bills of Quantities
included in the Contract subject to modifications and additions to the
same as may be made by letter or letters of amendment issued by the
Employer or Superintending Officer which forms part of the Contract.

A2. Quantities and Description Quantities and

Description
(a) The Bills of Quantities shall form part of the Contract. Subject to
Clause 4, the quantity of the Works to be executed under the
Contract shall be deemed to be that set out in the Bills of
Quantities which shall be the basis of the Contract Sum.

(b) Any error in description or in quantity or in omission of items

from the Bills of Quantities shall not vitiate the Contract but shall
be corrected by the Superintending Officer and such correction
shall be deemed to be a Variation.

A3. Provisional Quantities Provisional

Quantities
(a) Where quantities set out in the Bills of Quantities are indicated as
“Provisional”, such quantities are the estimated quantities of the
work and shall be subject to remeasurement upon the completion
of the Works. For the avoidance of doubt no instruction shall be
required for increase or decrease in the quantity of any work
where such increase or decrease is the result of the
remeasurement of provisional quantities stated in the Bill of
Quantities but shall be deemed to be a Variation required by the
Superintending Officer.

(b) Where the Works measured are as described in the Bills of

Quantities the valuation of such Works shall, subject to Clause
29, be at the Rates for the Works stated in the Bills of Quantities
irrespective of the actual remeasured quantities.

A4. Methods of Measurement Methods of

Measurement
Unless otherwise stated, the Bills of Quantities shall be deemed to have
prepared in accordance with the current edition of the Malaysian
Standard Method of Measurement of Building Works published by the
Institution of Surveyors, Malaysia. Any deviation from the said Standard
Method of Measurement shall be specified in the Bills of Quantities or
elsewhere in the Contract Documents.

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 OPTION MODULE B
UNFIXED EQUIPMENT MATERIALS OR
GOODS
STORED OFF SITE

B1. Certification and Payment Certification and

Payment
The amount stated as due in an Interim Certificate under Clause 42 may
at the discretion of the Superintending Officer and provided that the
same is claimed by the Contractor, include the percentage value (as
stated in the Appendix) of unfixed Equipment, materials or goods
before delivery to the Site, subject always to the conditions precedent
stipulated in Clause B2.

B2. Conditions Precedent Conditions

Precedent
The conditions precedent referred to in Clause B1 are:

(a) The invoices and receipts of payment for such Equipment,

materials or goods are submitted with the Statement of Work
Done required under Clause 42.1;

(b) The Equipment, materials or goods are intended for

incorporation into the Works;

(c) The Equipment, materials or goods are in accordance with the

Contract;

(d) The Equipment, materials or goods are in Malaysia and have

been and are either set apart at the premises where they have
been manufactured or assembled or are suitably stored and in
any case visibly marked or identified in a manner as directed by
the Superintending Officer and properly protected from loss and
damage;

(e) The progress of the Contract is such that the Superintending

Officer is satisfied that the Equipment, materials or goods cannot
at the time of certification be fully and properly incorporated
into the Works;

(f) The Superintending Officer is satisfied that the Equipment,

materials or goods are not prematurely delivered and there is
inadequate storage space at the Site or such Equipment,
materials or goods if brought to the Site cannot be adequately
protected against damage, loss or injury;

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 (g) The Contractor provides the Superintending Officer with
reasonable proof that the Equipment, materials or goods are
insured against damage, loss or injury for their full value under a
policy of insurance protecting the interests of the Employer and
the Contractor in respect all risks (save only the Excepted Risks)
referred to in Clause 38 during the period commencing with the
transfer of the property in the Equipment, materials or goods to
the Contractor until they are delivered to the Site;

(h) Property in the Equipment, materials or goods shall pass to the

Employer when payment is made for the same in accordance
with Clause 42;

(i) The Employer shall not at any time be liable for damage, loss or
injury to any of the said Equipment, materials or goods except
and to the extent that the same is due to Excepted Risks or any
act or neglect of the Employer or of any person for whom the
Employer is responsible; and

(j) If any Equipment, materials or goods for which payment has

been made by the Employer have been removed from the place
of manufacture, assembly or storage to another destination other
than the Site or should the Contractor fail to deliver any
Equipment, materials or goods for which payment has been
made by the Employer to the Site as and when directed by the
Superintending Officer without reasonable cause or have an
intent to deceive or defraud the Employer, such amount paid by
the Employer for any such Equipment, materials or goods
moved or delivered shall be recoverable from the Contractor.

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 OPTION MODULE C
NOMINATED SUB-CONTRACTORS
AND/OR NOMINATED SUPPLIERS

C1. Nominated Sub-Contractors and/or Nominated Suppliers Nominated Sub-

Contractors
(a) A Nominated Sub-Contractor means a person or specialist and/or Nominated
contractor with whom the Contractor is required by: Suppliers

(i) the Contract to enter into a contract for the execution of

any work designated as “Prime Cost” or “P.C.” Sum
items; or
(ii) an instruction from the Superintending Officer to enter
into a contract for the execution of any work designated
as “Prime Cost” or “P.C.” Sum items; or
(iii) an instruction from the Superintending Officer in regard
to the expenditure of a Provisional Sum to treat such
sum as a Prime Cost or P.C. Sum item for the execution
of any work by a Nominated Sub-Contractor.

(b) A Nominated Supplier is a person with whom the Contractor is

required by:

(i) the Contract to enter into a contract for the execution of

any work designated as “Prime Cost” or “P.C.” Sum
items; or
(ii) an instruction from the Superintending Officer to enter
into a contract for the supply of any Equipment, materials
or goods designated as “Prime Cost” or “P.C.” Sum
items; or
(iii) an instruction from the Superintending Officer in regard
to the expenditure of a Provisional Sum to treat such sum
as a Prime Cost or P.C. Sum item for the supply of any
Equipment, materials or goods by a Nominated Supplier.

(c) All Prime Cost or P.C. Sum items designated in the Contract shall
be reserved for execution or supply by a person to be nominated
in such ways on such terms and for such amount as may be
instructed by the Superintending Officer in accordance with the
provisions of this Option Module C. The Contractor shall not
without the instruction of the Superintending Officer order
execution of any work or supply of any Equipment, materials or
goods under such Prime Cost or P.C. Sum items or Provisional
Sum.

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C2. Nomination Nomination

(a) The Superintending Officer or the Contractor if so instructed by

the Superintending Officer shall obtain tenders or quotations for
the execution of any work or the supply of any Equipment,
materials or goods in respect of which Prime Cost or P.C. Sums
or Provisional Sum are included in the Contract. Subject to sub-
clause C2 (b) the Contractor shall on the instruction of the
Superintending Officer enter into a sub-contract with the
Nominated Sub-Contractor or Nominated Supplier, as the case
may be, and such sub-contract shall unless otherwise prescribed
in the Contract be on the CIDB Standard Form of Sub-Contract
for Nominated Sub-Contractor or Nominated Supplier (whichever
is applicable).

(b) Subject to sub-clauses C2 (c) and (d) the Contractor is not

required to enter into a sub-contract with any Nominated Sub-
Contractor or Nominated Supplier against whom the Contractor
has made an objection:

(i) on the ground that the financial standing or solvency or

technical competence of the Nominated Sub-Contractor
or Nominated Supplier is such that a prudent contractor
would not appoint, having regard to the nature and extent
of the work or the Equipment, materials or goods and
their possible effect on the remainder of the Works; or

(ii) on the ground that the Nominated Sub-Contractor or

Nominated Supplier declines to enter into a sub-contract
on the terms and conditions of the form prescribed
providing:

(1) that the Nominated Sub-Contractor or Nominated

Supplier shall in respect of the sub-contract, duly
observe all the terms stipulations and Conditions
of the Contract;

(2) that the Nominated Sub-Contractor or Nominated

Supplier shall indemnify the Contractor against
claims in respect of negligence, omission or
default by the Nominated Sub-Contractor or
Nominated Supplier, his servants or agents
arising out of the design (to the extent required
by the Sub-Contract) or the execution of the work
or the supply of the Equipment, materials or
goods, as the case may be;

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 (3) that payment due to the Nominated Sub-
Contractor or Nominated Supplier less any
deductions in accordance with the sub-contract
shall be made by the Contractor within 7 Days
after the Period of Honouring Certificate or after
the Contractor has received payment, whichever
is the earlier, under any Interim Certificate issued
by the Superintending Officer pursuant to Clause
42 which includes the value of any such sub-
contract works or supply of any Equipment,
materials or goods;

(4) that if the Nominated Sub-Contractor or the

Nominated Supplier fails to complete the sub-
contract works or the delivery of any Equipment,
materials or goods in accordance with the sub-
contract, he shall be liable for all loss, expense
and damages for delay which are attributable to
him having regard to the Contractor’s own
liability for delay under the Contract; and

(5) that the Nominated Sub-Contractor or Nominated

Supplier shall provide a Performance Security
Deposit (if Option Module F is applicable under
the Contract) as and by way of security for the
due performance and of observance by the
Nominated Sub-Contractor or Nominated
Supplier of his obligations under the sub-
contract. The said Performance Security Deposit
shall be in the form of cash, banker’s draft, a
banker’s bond or an insurer’s bond reasonably
approved by the Superintending Officer and the
Contractor for the amount stated in the Appendix.

(c) Notwithstanding any reasonable objections raised by the

Contractor under sub-clause C2 (b), the Superintending Officer
may require the Contractor to enter a sub-contract with the
Nominated Sub-Contractor or Nominates Supplier; provided that
the Employer shall indemnify the Contractor against any loss,
expense, costs, damages, liability or claim incurred by him arising
as a direct result of a matter or matters reasonably objected to by
the Contractor. In such case the Superintending Officer shall,
subject to Clauses 32 and 42, certify any Loss and Expense which
the Contractor had incurred and, subject to Clause 24, grant the
Contractor an extension of time.

(d) Notwithstanding sub-clause C2 (b), no objection to the

nomination shall be considered if:

(i) the sub-contractor or supplier is nominated in the

documents provided by the Employer upon which the
Tender is based; or

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 (ii) the Superintending Officer and the Contractor have
agreed on the list of selected sub-contractors or suppliers
prior to invitation to tender for the execution of the work
or supply of any Equipment, materials or goods, the
subject of Prime Cost or P. C Sums or Provisional Sums
under the Contract;

unless there has been a material change in the circumstances of

the said sub-contractor or supplier between the Date of Tender or
agreement of the list of selected sub-contractors or suppliers and
the date of nomination by the Superintending Officer.

(e) If pursuant to sub-clause C2 (b) the Contractor is not required to

enter into a sub-contract with a sub-contractor or supplier
nominated by the Superintending Officer then the Superintending
Officer shall do one or more of the following:

(i) Nominate an alternative sub-contractor or supplier, as the

case may be, in which case sub-clauses C2 (b) and (c)
shall apply;

(ii) Arrange in accordance with sub-clause 41.1(b) for the

Contractor to execute such work or to supply such
Equipment, materials or goods, as the case may be;

(iii) By an instruction under Clause 28 vary the Works or the

work, Equipment, materials or goods, which is the
subject of Prime Cost or P. C. Sums or Provisional Sums
under the Contract, including, if necessary, the omission
of any such work, Equipment, materials or goods so that
they may be provided by other persons, contractors or
suppliers, engaged by the Employer directly either
concurrently with the Works or at some other time.

C3. Payment to Nominated Sub-Contractor or Nominated Supplier Payment to

Nominated Sub-
(a) In any application for payment pursuant to Clause 42, the Contractor or
Contractor shall include amounts claimed by the Nominated Sub- Nominated
Supplier
Contractor or Nominated Supplier in respect of any work
executed or any Equipment, materials or goods delivered under
the respective sub-contracts for which they are entitled to
payment.

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 (b) In addition to each of the certificates issued pursuant to Clause
42, the Superintending Officer shall certify separately the
amounts due to each of the Nominated Sub-Contractors or
Nominated Suppliers in respect of the work executed or the
Equipment, materials or goods delivered. Such separate
certificates shall be given to the Nominated Sub-Contractor or
Nominated Supplier by the Superintending Officer with a copy to
the Contractor.

(c) Within 7 Days after the Period of Honouring Certificate or after

the Contractor has received payment from the Employer,
whichever is the earlier, the Contractor shall pay to the
Nominated Sub-Contractor or Nominated Supplier the amount
stated as due to them in the said separate certificate referred to in
sub-clause C3(b). Provided always the Contractor is entitled to
deduct or set-off any amounts due to him from the Nominated
Sub-Contractor or Nominated Supplier under the sub-contract.

(d) Before issuing each Interim Certificate under Clause 42.2 (except
the first Interim Certificate) and the Final Certificate under
Clause 42.8 , the Superintending Officer shall be entitled to
request from the Contractor reasonable proof that all amounts
included in previous Interim Certificates in respect of amounts
due to the Nominated Sub-Contractors or Nominated Suppliers
(less any amounts due from the Nominated Sub-Contractor or
Nominated Supplier to the Contractor) have been paid or
otherwise discharged by the Contractor pursuant to sub-clause
C3(c). In the event of default by the Contractor to provide such
reasonable proof, the Employer shall be entitled, but not obliged,
to pay direct to such Nominated Sub-Contractor or Nominated
Supplier the amounts due but which have not been paid by the
Contractor under the current or previous Interim Certificates
issued by the Superintending Officer under Clause 42.2. The
amounts so paid direct to the Nominated Sub-Contractors or
Nominated Suppliers by the Employer pursuant to this sub-clause
C3(d) shall be deducted from any payment due or which may
become due from the Employer to the Contractor.

(e) If the Superintending Officer wishes to make final payment to

any Nominated Sub-Contractor or Nominated Supplier before
final payment is due to the Contractor, and if the Nominated Sub-
Contractor or Nominated Supplier has:

(i) in the opinion of the Superintending Officer and the

Contractor made good any Defects which have appeared
and which the Nominated Sub-Contractor or Nominated
Supplier is bound to make good under the sub-contract;

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 (ii) sent through the Contractor to the Superintending Officer
all documents necessary for the final adjustment of the
sub-contract sum; and

(iii) satisfactorily indemnified the Contractor against any

latent Defects;

then the Superintending Officer may in an Interim Certificate

include an amount to cover the said final payment, and the
Contractor shall pay to such Nominated Sub-Contractor or
Nominated Supplier in accordance with the provisions of sub-
clause C3(c)

(f) Upon such final payment in accordance with sub-clause C3 (e):

(i) the amount stated in the Appendix as Limit of Retention

shall be reduced by the sum which bears the same ratio to
the said amount as does such sub-contract sum to the
Contract Sum; and

(ii) except for latent Defects, the Contractor shall be

discharged from the liability for the work, Equipment,
materials or goods executed or supplied by such
Nominated Sub-Contractor or Nominated Supplier (as the
case may be) under the sub-contract.

(g) Neither the existence nor the exercise of powers pursuant to sub-
clauses C3 (d) and (e) nor anything else under this Clause C3
shall create a privity of contract between the Employer and the
Nominated Sub-Contractors or Nominated Suppliers or render the
Employer liable to any of them.

C4. Contractor’s Responsibilities Contractor’s

Responsibilities
(a) Except for Nominated Sub-Contractors or Nominated Suppliers
nominated pursuant to sub-clause C2 (c), once the Contractor has
entered into a sub-contract with a Nominated Sub-Contractor or
Nominated Supplier, he shall be fully responsible for the
performance of the Nominated Sub-Contractor or Nominated
Supplier under the sub-contract and shall be fully responsible for
the acts, defaults or breach of any terms or conditions of the
Contract by the Nominated Sub-Contractor or Nominated
Supplier on their part in the same way as for his own or those of
other sub-contractors or suppliers employed by himself, and the
Employer shall in no circumstances be liable to the Contractor for
the default of any Nominated Sub-Contractors or Nominated
Suppliers.

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(b) The Contractor shall not
(b) The Contractor shall not determine or assign any sub-contract
with the Nominated Sub-Contractor or Nominated Supplier
without the prior written consent of the Employer.

(c) In the event of repudiation or abandonment of his sub-contract by

any Nominated Sub-Contractor or Nominated Supplier, or the
determination by the Contractor of the employment of the
Nominated Sub-Contractor or Nominated Supplier for any reason
whatsoever under the sub-contract, the Contractor shall do one of
the following:

(i) with the consent of the Superintending Officer (such

consent shall not be unreasonably withheld) employ
another competent sub-contractor or supplier to complete
the sub-contract; or

(ii) himself undertake to complete the sub-contract.

(d) Subject to sub-clause C2 (c) if the sub-contract is determined or

assigned, the Employer shall not be required to pay the
Contractor any greater sums than would have been payable if the
determination or assignment had not occurred.

C5. Sub-Contractor’s Design Sub-Contractor’s

Design
Where any design is required to be carried out by the Nominated Sub-
Contractor by the express terms of the sub-contract or as may be
reasonably inferred from the same then the provisions of Option Module
D shall apply in the same manner as if such design is provided by the
Contractor.

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 OPTION MODULE D
WORKS DESIGNED BY THE CONTRACTOR

D1. Contractor’s Design Responsibility Contractor’s

Design
(a) Where the Contract expressly provides that a part or parts (but not Responsibility
the whole) of the Works shall be designed by the Contractor, he
shall be fully responsible for the suitability, adequacy, integrity,
durability and practicability of the design as set out in the
Drawings, Specifications, manuals, calculations and other
information submitted for the acceptance of the Superintending
Officer under Clauses D.2 and D.3 including any subsequent
amendment of such design.

(b) Insofar as the Contractor is responsible for the design of any part
of the Works, he shall have in respect of Defects or insufficiency
in such design the like liability to the Employer, whether under
statue or otherwise, as would an architect, or as the case may be,
other appropriate professional designer holding himself out as
competent to take on work for such design who, acting
independently under a separate contract with the Employer, had
supplied such design for or in connection with works to be carried
out and completed by a contractor not being the supplier of the
design.

(c) Any references to the design which the Contractor has prepared
or shall prepare or issue for the works shall include a reference to
any design which the Contractor has caused or shall cause to be
prepared or issued by others.

(d) The Contractor shall obtain from all his professional consultants
direct warranties for the adequacy and suitability of the designs.
The direct warranties shall be given by the Contractor’s
professional consultants in favour of the Employer.

D2. Submission of Documents Prior to Commencement Submission of

Documents Prior
(a) In respect of any part of the Worked designed by the Contractor: to
Commencement
(i) the Employer shall clearly set out the requirements for
which the design is intended (the “Employer’s
Requirements”);

(ii) the Contractor shall proceed with the design to meet the
Employer’s Requirements.

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 Provided however the Contractor shall not proceed with the
execution of the same until he has submitted to the
Superintending Officer in accordance with Clause 4.4 such
Drawings, Specifications, manuals, calculations and other
information as shall be necessary to demonstrate the suitability,
adequacy, integrity, durability and practicality of such design to
meet the Employer’s Requirements (hereinafter collectively
called “the Design Documents”) and the Superintending Officer
has issued his acceptance in writing of such design.

(b) Without prejudice to his rights under Clause D4, the

Superintending Officer shall be entitled to approve or otherwise
any of the Design Documents submitted in accordance with sub-
clause D2(a). The Superintending Officer shall approve or
otherwise any such Design Documents within 14 days from the
date of receipt of the same. The Superintending Officer shall
signify by a notice:

(i) his “approval"; or

(ii) his “approval with correction” or

(iii) his requirement to "resubmit";

and return 1 copy to the Contractor. If the Superintending Officer

fails to give notice within the period of 14 days or such other
longer period as be mutually agreed, the Design Documents so
submitted shall be deemed to be approved by the Superintending
Officer.

(c) The Superintending Officer’s notes "approved" or "approved with

corrections" will give the Contractor authorisation to proceed on
the basis of the Design Document(s) provided that the required
corrections, if any, are made.

(d) Where any of the Design Document is marked "resubmit", the

same shall be corrected and re-submitted and the procedure for
obtaining approval set out in this Clause D2 shall apply to the
resubmitted Design Document.

(e) Acceptance by the Superintending Officer of such submission

shall not relieve or in any way limit the responsibility of the
Contractor under Clause D1.

(f) Notwithstanding anything contained in this Clause D2 if the

Contractor considers that the comments and amendments of the
Superintending Officer in respect of the Design Documents
submitted involve a change to the Employer’s Requirements then
the Contractor shall inform the Superintending Officer in writing
of the same requiring a Variation instruction and the provisions of
Clause 28 shall apply.

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 (g) For the avoidance of doubt the Superintending Officer may
instruct Variations in respect of Works designed by the
Contractor to the same extent as for other works by way of
changes to the Employer’s Requirements in which case the
provisions of Clause 28 shall apply.

D3. Submission of Documents After Completion Submission of

Documents After
Upon the Date of Practical Completion (or the latest Date of Practical Completion
Completion if there is more than one Date of Practical Completion), the
Contractor shall submit to the Superintending Officer in accordance with
Clause 4.10 the operation and maintenance manuals together with
Drawings of the Works or any part of the Works designed by the
Contractor as completed in sufficient details to enable the Employer to
operate, maintain, dismantle, reassemble and adjust the Works
incorporating such design.

D4. Amendment and Modification of Accepted Design Amendment and

Modification of
(a) The Superintending Officer may instruct the Contractor at any Accepted Design
time, before, during or after the execution or completion of the
Works to amend or modify the design provided by the Contractor
in respect of any deficiency of any kind or nature discovered by
the Superintending Officer and to carry out such work as
necessary to give effect to such amended or modified design in
accordance with the Superintending Officer’s instruction. All
work necessary (including re-design work) or Variations required
as a result of such an instruction and their costs or damages for
delay to the completion of the Works shall be the entire
responsibility of and shall be borne by the Contractor.

(b) The Contractor may with the written consent of the

Superintending Officer (such consent shall not be unreasonably
withheld or delayed) amend or modify the design provided.
Provided that where such amendment or modification involves a
Variation, the following provisions shall apply:

(i) any extra cost shall be borne by the Contractor;

(ii) any savings resulting from such Variation shall accrue to

the Employer.

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 OPTION MODULE E
PAYMENT BOND

E1. Submission of Payment Bond Submission of

Payment Bond
The Employer shall within 14 days of the date of the Letter of Award
submit to the Contractor a security deposit (hereinafter called “the
Payment Bond”) in the form of a banker’s bond or insurer’s bond in the
amount stated in the Appendix for the due performance and observance
by the Employer of his obligations under the Clause 42.

E2. Validity of Payment Bond Validity of

Payment Bond
(a) The Contractor is entitled to hold the Payment Bond until the
final payment is made by the Employer pursuant to the Final
Certificate issued under Clause 42.8. The Employer shall ensure
that the Payment Bond is valid and effective until the said final
payment.

(b) In the event of any extension of time properly granted by

Superintending Officer in accordance with Clause 24, the
Employer shall ensure that the validity of the Payment Bond is
accordingly extended.

(c) Provided that the Employer shall not be obliged to extend the
validity of the Payment Bond if the delay is due any default or
breach of contract by the Contractor.

E3. Use of Payment Bond Use of Payment

Bond
Provided that the Payment Bond is valid and effective, if the Employer
fails to pay the Contractor any amount pursuant to any certificate under
Clause 42 the Contractor may utilize and make payments out of or
deductions from the Payment Bond.

E4. Release of Payment Bond Release of

Payment Bond
The Payment Bond shall be released to the Employer upon the receipt by
the Contractor of the final payment from the Employer pursuant to the
Final Certificate issued under Clause 42.8.

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 OPTION MODULE F
PERFORMANCE SECURITY DEPOSIT

F1. Submission of Performance Security Deposit Submission of

Performance
(a) The Contractor shall within 14 Days of the Letter of Award (but Security Deposit
in any event before the commencement of the Works) deposit
with the Employer the Performance Security Deposit equal to the
amount stated in the Appendix as and by way of security for the
due performance and observance by the Contractor of his
obligations under the Contract.

(b) The Performance Security Deposit may be in the form of cash,

banker’s draft, a banker's bond or an insurer’s bond in the format
required by the Contract or otherwise approved by the Employer.

F2. Validity of the Performance Security Deposit Validity of the

Performance
(a) The Employer is entitled to hold the Performance Security Security Deposit
Deposit until the issue of the Certificate of Practical Completion
by the Superintending Officer pursuant to Clause 20.2.

(b) If the Performance Security Deposit is in the form of a banker’s

bond or insurer’s bond, it shall be the Contractor’s responsibility
to ensure that such bond is valid and effective until the issuance of
the Certificate of Practical Completion, notwithstanding the
expiry of the Time for Completion or the expiry date stated in the
banker’s bond or insurer’s bond. If the Contractor shall fail to
effect and maintain the validity of such banker’s bond or insurer’s
bond, then without prejudice to any other rights and remedies the
Employer may possess, the Employer shall be entitled to withhold
an amount equal to the amount of the Performance Security
Deposit stated in the Appendix from any payment due or to
become due to the Contractor and such amount shall be withheld
until the issue of the Certificate of Practical Completion.

F3. Utilisation of Performance Security Deposit by Employer Utilisation of

Performance
(a) If the Contractor fails to execute the Contract or commits any Security Deposit
breach of his obligations under the Contract, the Employer may by Employer
utilize and make payments out of or deductions from the
Performance Security Deposit subject to sub-clauses F3(b) and
F3(c).

(b) A notice of default from the Superintending Officer to the

Employer with a copy to the Contractor is the condition precedent
to the Employer’s entitlement to demand or utilisation of the
Performance Security Deposit.

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 (c) The notice of default shall state:

(i) that the Contractor has failed to execute the Work or

committed a breach of his obligations under the Contract;

(ii) in what manner the Contractor has failed to execute the

Works or breached his obligations under the Contract and

(iii) an estimate of the cost, damage, loss or injury due or

payable to the Employer by the Contractor arising out of
such default by the Contractor.

(d) Provided that the amount which may be recovered by the

Employer from the Performance Security Deposit shall not
exceed the amount of the said estimated cost, damage, loss or
injury referred to in sub-clause F3(c)(iii) after taking into account
the amount certified as due to the Contractor pursuant to Clause
42 but remaining unpaid by the Employer (unless and to the
extent that under the terms of the Contract the Employer may be
empowered not to pay or to make deductions in respect of such
amount certified).

F4. Release of the Performance Security Deposit Release of

the Performance
The Performance Security Deposit (or any balance of the same Security Deposit
remaining to the credit of the Contractor) shall be released or refunded to
the Contractor on the completion of the whole of the Works and the issue
of the Certificate of Practical Completion by the Superintending Officer
pursuant to Clause 20.2. In the case of a bank bond or insurer’s bond, the
said bond shall have no force or effect after the issue of the Certificate of
Practical Completion irrespective of whether or not the said banker’s
bond or insurer’s bond is released to the Contractor.

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