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| 06 January 2009 | ||
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3 (1) Available data
(2) Contractor deemed to have inspected Site
(3) Contractor to base his tender on Tender Documents
(4) Contractor to satisfy himself as to the correctness of his tender
4 (1) Documents mutually explanatory
(2) Additional Cost due to ambiguity
(3) Copies of Contract Documents
5 Agreement
6 (1) Extent of Contractors obligations
(2) Contractors liability for his own design errors
(3) Work to be to Engineers instructions
(4) Instructions only from Engineer
(5) Compliance with applicable laws
7 Assignment/cession
8 (1) Subcontracting whole Contract
(2) Subcontracting part of Contract
(3) Engineers consent
(4) Contractors liability unaffected
(5) No consent required
9 (1) Nominated Subcontractors
(2) Provisions of subcontract
(3) Limitation of Contractors obligations to Employer
(4) Prices and rates subject to approval
(5) Proof of payment to Nominated Subcontractor
(6) Contractors failure to pay Nominated Subcontractor
(7) Replacement of Nominated Subcontractor
(8) Cancellation of subcontract
(9) Cession of benefits of Subcontractors obligations
(10) Employers assumption of subcontract
10 Suretyship
11 Payment to the Contractor
3.(1) Available data
The Employer shall make available to the Contractor, as part of or by reference in the Tender Documents, all such data relevant to the Works relating to hydrological and subsurface conditions as have been obtained by or on behalf of the Employer, but the Contractor shall be responsible for his own interpretation thereof and deductions therefrom.
(2) Contractor deemed to have inspected Site
The Contractor shall be deemed to have inspected and examined the Site and its surroundings and information available in connection therewith and to have satisfied himself before submitting his tender (as far as is practicable) as to
(a) the form and nature of the Site and its surroundings, including subsurface conditions,
(b) the hydrological and climatic conditions,
(c) the extent and nature of work and materials necessary for the execution and completion of the Works,(d) the means of access to the Site and the accommodation he may require
and, in general, shall be deemed to have obtained all information (as far as is practicable) as to risks, contingencies and all other circumstances which may influence or affect his tender.
(3) Contractor to base his tender on Tender Documents
The Contractor shall be deemed to have based his tender on the technical data given in the Tender Documents and, if in the performance of the Contract any circumstances shall differ from the said technical data, which difference causes delay or additional Cost, the Contractor shall be entitled to make a claim in accordance with Clause 51.
(4) Contractor to satisfy himself as to the correctness of his tender
The Contractor shall be deemed to have satisfied himself before tendering as to the correctness and sufficiency of his tender for the Works and of the rates and prices stated in the priced Schedule of Quantities and the Schedule of Rates and Prices (if any) or in the Specification, which rates and prices shall (except in so far as otherwise provided in the Contract) collectively cover full payment for the discharge of all his obligations under the Contract and all matters and things necessary for the proper completion of the Works.
4.(1) Documents mutually explanatory
The several documents forming the Contract are to be taken as mutually explanatory of one another and any ambiguity in or discrepancy between them shall be explained and, if necessary, adjusted by the Engineer who shall thereupon issue to the Contractor a written instruction directing what work, if any, is to be carried out.
(2) Additional Cost due to ambiguity
If compliance with any such instruction shall involve the Contractor in any delay or additional Cost, which by reason of any such ambiguity or discrepancy the Contractor did not and had good reason not to anticipate, he shall be entitled to make a claim in accordance with Clause 51.
(3) Copies of Contract Documents
As soon as practicable after the delivery of the Letter of Acceptance, the Employer or the Engineer shall deliver to the Contractor a copy of all the documents then constituting the Contract.
5. Agreement
The Contractor shall, when called upon to do so, enter into and execute a formal Agreement (to be prepared and paid for by the Employer) recording the terms of the Contract.
6.(1) Extent of Contractors obligations
The Contractor shall, save in so far as it is legally or physically impossible,
(a) design (to the extent provided in the Contract), execute and complete the Works and remedy any defects therein in accordance with the provisions of the Contract, and
(b) provide all superintendence, labour, materials, Constructional Plant, Temporary Works, including the design thereof, all requisite transport and all other things, whether of a temporary or permanent nature, required in and for such design, execution and completion of the Works and for the remedying of any defects, so far as the necessity for providing the same is specified in or reasonably to be inferred from the Contract.
(2) Contractors liability for his own design errors
Where the Contract expressly provides that part of the Permanent Works shall be designed by the Contractor, he shall, notwithstanding any approval of the Engineer, be liable for any error or deficiency in any drawing or document supplied by him for that part of the Works and for any loss or damage arising out of such error or deficiency.
(3) Work to be to Engineers instructions
The Contractor shall, in carrying out his aforesaid obligations, comply with the Engineers instructions on any matter relating to the Works.
(4) Instructions only from Engineer
The Contractor shall take instructions only from the Engineer, the Engineers Representative or other person authorised by the Engineer in terms of Clause 2(5).
(5) Compliance with applicable laws
The Contractor shall, in the performance of the Contract, comply with all applicable laws and shall in particular, on the request of the Engineer, provide proof that he has complied with all laws relating to
(a) wages and conditions of work, and
(b) safety.
Neither the Contractor nor the Employer shall, without the written consent of the other, assign the Contract or any part thereof or any obligation under the Contract or cede any right or benefit thereunder.
8.(1) Subcontracting whole Contract
The Contractor shall not subcontract the whole of the Contract.
(2) Subcontracting part of Contract
Except where otherwise provided by the Contract, the Contractor shall not subcontract any part of the Contract without the prior written consent of the Engineer, which consent shall not be unreasonably withheld.
The Engineers consent in respect of a particular subcontractor may be withdrawn at any time on reasonable grounds being given in writing to the Contractor by the Engineer, in which event the Contractor shall forthwith terminate the employment of that subcontractor.
(4) Contractors liability unaffected
Any such consent shall not relieve the Contractor from any liability or obligation under the Contract and he shall be liable for the acts, defaults and neglects of any subcontractor, his agents or employees as fully as if they were the acts, defaults or neglects of the Contractor, his agents or employees.
The Contractor shall not be required to obtain such consent for
(a) the provision of labour, or
(b) the purchase of materials which are in accordance with the Contract, or
(c) the purchase or hire of Constructional Plant.
9.(1) Nominated Subcontractors
All specialists, merchants, tradesmen and subcontractors who execute any work or
supply any goods and who may have been or are nominated or selected by the Employer or the
Engineer, shall be engaged by the Contractor and shall, in the execution of such work or the supply
of such goods, be deemed to be subcontractors employed by the Contractor and are herein referred
to as "Nominated Subcontractors";
Provided that the Contractor shall not be required by the Employer or the Engineer or be deemed
to be under any obligation to employ any Nominated Subcontractor against whom the Contractor
shall make reasonable objection or who shall decline to enter into a subcontract with the Contractor
containing the provisions referred to in Sub-Clause (2).
The subcontract shall contain the following provisions:
(a) In respect of the work or the goods which are the subject of the subcontract, the Nominated Subcontractor shall undertake to the Contractor the same obligations and liabilities as are imposed on the Contractor by the terms of the Contract and shall indemnify the Contractor against all obligations whatsoever arising out of or in connection therewith, or arising out of or in connection with any failure to perform such obligations or to discharge such liabilities.
(b) The Nominated Subcontractor shall indemnify the Contractor against liability arising from(i) failure of the subcontract works to the extent that the design of the works is undertaken by the Nominated Subcontractor,
(ii) failure of the goods to the extent that the goods are manufactured and/or supplied by the Nominated Subcontractor,
(iii) any negligence by the Nominated Subcontractor, his agents and employees, and
(iv) any misuse by the Nominated Subcontractor of any Constructional Plant, Temporary Works or materials provided by the Contractor for the purposes of the Contract.
(3) Limitation of Contractors obligations to Employer
Notwithstanding the provisions of Sub-Clauses (I) and (2), the Contractor shall, if so directed in writing by the Engineer, enter into a subcontract with a person so declining, on terms and conditions stipulated or approved by the Employer, in which case the Employer shall be deemed to have given the indemnities referred to in Sub-Clauses (2)(a) and (b).
(4) Prices and rates subject to approval
The prices or rates set out in the subcontract shall be subject to the Engineers approval and the subcontract shall contain provisions giving effect to Sub-Clauses (8), (9) and (10). The Contractor shall, if required to do so, produce evidence to the Engineer that this has been done.
(5) Proof of payment to Nominated Subcontractor
Before issuing, under Clause 52, a payment certificate which includes any payment in respect of work done or goods supplied by any Nominated Subcontractor, the Engineer shall be entitled to demand from the Contractor reasonable proof that(a) all amounts (less retention) payable to the Nominated Subcontractor which have been included in previous payment certificates in respect of the work or goods of such Nominated Subcontractor have been paid or discharged by the Contractor, or
(b) he has reasonable cause for withholding or refusing to make such payment and that he has so informed such Nominated Subcontractor in writing.
(6) Contractors failure to pay Nominated Subcontractor
If, in respect of any payment certificate, the Contractor has failed to comply with the
provisions of Sub-Clause (5), the Employer shall be entitled to pay such Nominated Subcontractor
direct upon the certificate of the Engineer the amount which the Contractor has failed to pay to such Nominated Subcontractor;
Provided that any such payments shall be taken into account by the Engineer who shall, in issuing any
further certificate in favour of the Contractor, deduct from the amount thereof the amount so paid direct to
the Nominated Subcontractor.
(7) Replacement of Nominated Sub contractor
If any intended Nominated Subcontractor shall refuse to enter into the subcontract or, if for any reason the Contractor shall not be obliged to enter into such subcontract and shall elect not to do so, then the provisions of Sub-Clauses (8)(b) and (c) shall apply mutatis mutandis.
(8) Cancellation of subcontract
(a) If the Nominated Subcontractor shall be in default in any of the respects referred to in Clause 58( l ), such default will entitle the Contractor to cancel the subcontract and the Contractor shall, upon the written instruction of the Engineer, do so.
(b) Upon such cancellation, the Employer or the Engineer shall nominate another subcontractor in accordance with the provisions of Sub-Clauses (2), (3) and (4) and the Contractor shall, subject to the provisions of those Sub-Clauses, engage such subcontractor as a Nominated Subcontractor to carry out and complete the subcontract works in terms of this Clause.
(c) Any difference between the original subcontract sum (adjusted in terms of these General Conditions) and the total cost of carrying out and completing the subcontract works shall be for the Employers account.
(9) Cession of benefits of Subcontractors obligations
In the event of a Nominated Subcontractor having undertaken to the Contractor in respect of work executed or goods or materials supplied by such Nominated Subcontractor any continuing obligation extending beyond the date of completion of the Works or the end of the Defects Liability Period, as the case may be, the Contractor shall at any time after such date cede to the Employer, at the Employers request and cost, the benefit of such obligation for the unexpired duration thereof, whereupon the Employer shall have no further claim against the Contractor in respect of the said continuing obligation.
(10) Employers assumption of subcontract
If the Contract shall have been cancelled in terms of Clause 58, the Employer shall
have the right, by written notice given to any Nominated Subcontractor not later than 28 days after
the said cancellation, to convert the subcontract concerned to a direct contract between the
Employer and the Subcontractor;
Provided that
(a) the terms of the said direct contract shall mutatis mutandis be those of the subcontract concerned, and
(b) the Employer shall have the said right, notwithstanding any breach of the subcontract by the Contractor, subject to his forthwith paying to the Subcontractor all amounts then owing to the Subcontractor by the Contractor and perform any obligation which the Contractor has failed to perform.
10. Suretyship
The Contractor shall deliver to the Employer within such time as may be stated in
the Appendix a guarantee of an Insurance Company or Bank to be jointly and severally bound with
the Contractor, in terms of a Deed of Suretyship, in a sum equal to the amount stated in the
Appendix, for the due performance of the Contract. The said Company or Bank, and the terms of
the said Deed if different from the Pro Forma annexed hereto, shall be subject to approval by the
Employer.
The Engineer shall be empowered to withhold all payment certificates untie the
Contractor has complied with his obligations in terms of this Clause.
Expenditure incurred in obtaining such guarantee and the Deed to be entered into
shall be borne by the Contractor unless the Contract otherwise provides.
The liability under such Suretyship shall terminate upon the issue of a
Certificate or Certificates of Completion in respect of the whole of the
Permanent Works, unless otherwise provided in the Contract, and the Deed of
Suretyship shall be returned to the Surety within 14 days after such issue.
As consideration for the construction, completion and defects correction of the Works, the Employer shall pay to the Contractor the Contract Price in terms of the provisions of the Contract.
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