Standard Form of Building Contract 2005/2006

Table of Contents

Agreement & Schedule of Conditions of Building Contract for use in the Hong Kong Special Administrative Region, Private Edition – 【With Quantities, 2005 Edition】『Without Quantities, 2006 Edition』

【】= text in “With Quantities” only 【SFBCwQ.2005】

『』= text in “Without Quantities” only 『SFBCnQ.2006』

{} = Essential amendments for Special Conditions

< > = Alternative changes for Special Conditions

《》 = Desirable but not essential changes

# # =  note to pay attention to

text to pay attention to

Agreement & Schedule of Conditions of Building Contract for use in the Hong Kong Special Administrative Region (Standard Form of Building Contract)

Contents

Articles of Agreement

Attestation

The General Conditions

1          Interpretation and definitions
1.1       Governing law
1.2       Singular, plural, masculine and feminine
1.3       Method of reference to clauses and Articles
1.4       Articles of Agreement, Conditions and Appendix to be read as a whole
1.5       Clauses divided into sub-clauses to be read as a whole
1.6       Definitions

1.7   Tenders based on Schedule of Quantities and Rates
1.71.8       The role of the Engineer
1.81.9       Sectional completion of the Works
1.91.10       Communications
1.101.11       Notices of default or determination to be sent by special delivery
1.111.12       Parties to act reasonably and expeditiousl

2          Contractor's obligations
2.1       Contractor’s obligations
2.2       Contractor’s responsibility
2.3       Contractor’s skill and care
2.4       Contractor to inform Architect if he finds ambiguities in documents

3          Master programme
3.1       Master programme to be submitted
3.2       Programmes to be updated
3.3       Programme and other documents not to be documents forming the Contract

4          Architect's instructions
4.1       Architect may issue instructions up to the issue of the Final Certificate
4.2       Architect to issue instructions in writing
4.3       Compliance with Architect’s instructions
4.4       Contractor to carry out preventative work

5          Documents forming the Contract and other documents
5.1       The documents forming the Contract
5.2       Architect and Quantity Surveyor to keep documents available
5.3       Copies of documents for Contractor
5.4       Nominated Sub-Contract documents
5.5       Nominated Supply Contract documents
5.6       Further drawings, details, descriptive schedules and similar documents
5.7       Documents to be provided to Contractor on time
5.8       Electronic copies of drawings
5.9       Documents on Site
5.10     Return of drawings
5.11     Submission of manuals and assignment of warranties
5.12     Submission of as-built drawings
5.13     Limits to use of documents
5.14     Issue of Architect’s certificates
5.15     Copy of notice to be given to Employer

6          Statutory obligations
6.1       Statutory Requirements
6.2       Compliance with the Statutory Requirements
6.3       Fees or charges
6.4       Statutory undertakers and utility companies

7          Setting out the Works
            Setting out and levels

8          Materials, goods, workmanship and work
8.1       Types, standards and quality
8.2       Inspection and tests
8.3       Materials, goods, workmanship or work not in accordance with Contract
8.4       Rectifying defects
8.5       Dismissal from the Works

9          Intellectual property rights
{9.1      Intellectual property in design of the Works}
{9.2      Intellectual property in materials and goods}
9.3       Intellectual property{ in plant and equipment}
9.4       Payment of royalties included in Valuation

10        Contractor's site management team
10.1     Contractor’s site management team
10.2     Construction manager

11        Access for the Architect to the Works
            Contractor to give access

12        Architect's representative
12.1     Architect’s representative
12.2     Delegation of duties and powers
12.3     Instruction to bind parties

13        Variations, Provisional Quantities, Provisional Items and Provisional Sums
13.1     Architect’s authority to issue instructions requiring a Variation
13.2     Instructions for Provisional Quantities, Provisional Items and Provisional Sums
13.3     Valuation of Contractor’s work
13.4     Valuation rules
13.5     Adjustment of Contract Sum
13.6     Contractor’s right to be present during measurement on Site
13.7     Variation necessitated by fault of Contractor
13.8     Valuation of Nominated Sub-Contractor’s work or Nominated Supplier’s materials and goods
{13.9    Contractor’s estimate before formal instruction}

14     Contract Bills
14.1  Quality and quantity of work included in Contract Sum
14.2  Standard Method of Measurement of Building Works
14.3  Errors in Contract Bills
{14.4   Lump sum princes based on Contract Drawings and Specification only}

15        Contract Sum
            Adjustment of Contract Sum

16        Materials and goods on or off-site
            Property in materials and goods

17        Substantial Completion and defects liability
17.1     Substantial Completion Certificate for the Works
17.2     Separate Defects Liability Period for each Section and Relevant Part
17.3     Rectifying defects
17.4     Defects Rectification Certificate for the Works
17.5     Separate certificate for each Section or Relevant Part
17.6     Damage by a Specified Peril
17.7     Other rights and remedies

18        Partial possession by Employer
18.1     Partial possession
18.2     Substantial Completion
18.3     Completion of rectifying defects
18.4     Liquidated and ascertained damages
18.5     Damage by a Specified Peril

19        Assignment and sub-letting
19.1     Assignment
19.2     Sub-letting

20        Injury to persons and property and indemnity to Employer
            Contractor to indemnify Employer

21        Insurance against injury to persons or property
21.1     Employees’ Compensation Insurance
21.2     Third party liability insurance
21.3     Insurers and terms to be approved
21.4     Policies to be produced
21.5     Event of failure to insure
21.6     No prejudice to Contractor’s indemnity
{21.7    Deductibles and exclusions}

22        Insurance of the Works
22.1     Alternative clauses for Contractors’ All Risks Insurance of the Works
22.2     Basic requirements for Contractors’ All Risks Insurance of the Works
22.3     Specific requirements for Contractors’ All Risks Insurance of the Works
22.4     Insurance of the Works to be in joint names and period of insurances
22.5     Parties’ obligations if loss or damage occurs
22.6     Contractor’s payment not more than insurance proceeds
22.7     Insurance without prejudice to Contractor’s obligations
{22.8    Deductibles and exclusions}

22A      Insurance of the Works by the Contractor
22A.1   Contractor to effect Contractors’ All Risks Insurance of the Works
22A.2   Insurer to be approved and remedy if Contractor fails to insure
22A.3   Use of annual policy maintained by Contractor

22B      Insurance of the Works by the Employer
22B.1   Employer to effect Contractors’ All Risks Insurance of the Works
22B.2   Remedy if Employer fails to insure

22C      Insurance of existing building and insurance of the Works by the Employer
22C.1   Employer to effect insurance against Specified Perils to the existing building
22C.2   Employer to effect Contractors’ All Risks Insurance of the Works
22C.3   Remedy if Employer fails to insure

23         Possession, commencement and completion
23.1      Possession of Site < alternatively: Entering the Site >

# No site possession for maintenance repair or external renovation contract #

23.2      Commencement and completion
23.3      Postponement or suspension

24         Damages for non-completion

24.1      Architect to certify Contractor’s failure to complete on time
24.2      Liquidated and ascertained damages
24.3      Refund if Completion Date revised

25         Extension of time

25.1      Contractor’s first notice of delay
25.2      Contractor’s second notice
25.3      Fixing new Completion Date
25.4      Contractor’s default involved in the delay
25.5      Rate of progress
25.6      Nominated Sub-Contractors and Suppliers to be kept informed

26         Delay recovery measures

26.1      Delay recovery measures
26.2      Delay recovery proposals
26.3      Contractor to carry out delay recovery measures
26.4      Extension of time to cover shortfall in recovering delay
26.5      Contractor to be reimbursed for the cost of preparing the proposal if delay recovery not instructed

27         Direct loss and/or expense
27.1      Contractor’s notice of claim for additional payment
27.2      Quantity Surveyor’s ascertainment of Contractor’s claim
27.3      Contractor’s default involved in the delay or disruption
27.4      Nominated Sub-Contractor’s claim for additional payment

28         Notice of claims for additional payment
28.1      Contractor to give notice of claim
28.2      Contractor to submit particulars
28.3      Condition precedent to Contractor’s entitlement to additional payment

29         Nominated Sub-Contractors and Nominated Suppliers
29.1      Nomination of a sub-contractor or a supplier
29.2      Contractor's right of reasonable objection
29.3      Sub-contractor and supplier warranty to Employer
29.4      Contractor's tender for work provided for by a Prime Cost Sum
29.5      Nomination using the standard conditions
29.6      Contractor’s responsibility for Nominated Sub-Contractors and Nominated Suppliers
29.7      Quantity Surveyor’s notification of interim payments
29.8      Direct payment of Nominated Sub-Contractors and Nominated Suppliers
29.9      Extension of time for completion of Nominated Sub-Contract works or delivery of Nominated Supply Contract goods
29.10    Substantial completion of Nominated Sub-Contract works
29.11    Architect to certify Nominated Sub-Contractor’s failure to complete on time
29.12    Early final payment to Nominated Sub-Contractor or Nominated Supplier
29.13    Re-nomination
29.14    Architect’s consent
29.15    Employer not liable to a Nominated Sub-Contractor or Nominated Supplier

30         Persons engaged by Employer
30.1      Persons for whom the Employer is responsible
30.2      Access to the Site and permission to carry out work
30.3     Contractor to fulfil his obligations to persons engaged by the Employer

31        Facilities for statutory undertakers and utility companies
           【Access to site and facilities to carry out work

32        Certificates and payments
32.1     Interim Certificates and interim valuations
32.2     Estimate of amount due in Interim Certificate
32.3     Off-site materials or goods
32.4     Calculation of Retention
32.5     Retention Rules
32.6     Quantity Surveyor to prepare final account
32.7     Adjustment of the Contract Sum
32.8     Issue of Final Certificate
32.9     Effect of Final Certificate
32.10   Proceedings commenced before Final Certificate
32.11   Proceedings commenced after Final Certificate
32.12   Effect of Architect’s certificates
32.13   Late payment

33        Surety bond
33.1     Contractor to obtain guarantee from insurance company or bank
33.2     Release of insurance company or bank
33.3     Employer’s remedy if Contractor fails to deliver bond

34        Antiquities
34.1     Effect of finding antiquities
34.2     Architect's instruction concerning a fossil, antiquity or object

35        Determination by Employer
35.1     Default by Contractor
35.2     Insolvency of Contractor
35.3     Employer’s rights upon notice of default or determination
35.4     Consequences of determination
35.5     Quantity Surveyor to prepare final account
35.6     The final settlement
35.7     Delayed commencement of completion works
35.8     Other rights and remedies

36        Determination by Contractor

36.1     Default by Employer
36.2     Insolvency of Employer
36.3     Consequences of determination
36.4     Contractor to submit final account
36.5     Quantity Surveyor to check final account
36.6     The final settlement
36.7     Architect to notify sub-contractors and suppliers
36.8     Other rights and remedies

37        Determination by Employer or Contractor
37.1     Grounds for determination
37.2     Site security
37.3     Consequences of determination
37.4     Quantity Surveyor to prepare final account
37.5     The final settlement
37.6     Architect to notify sub-contractors and suppliers

38        Fluctuations
38.1     Fluctuation provisions only applicable if expressly stated to be
38.2     Adjustment for fluctuations occurring after the Completion Date

39        Notices, certificates and other communications
            Submission of notices, certificates and other communications

40        Recovery of money due to the Employer
            Employer’s power to recover damages etc.

41        Settlement of disputes
41.1     Procedures and Designated Representatives
41.2     Reference to Designated Representatives
41.3     Reference to mediation
41.4     Reference to arbitration
41.5     Timing of arbitration
41.6     Arbitrator’s powers
41.7     The place of arbitration
41.8     Contractor to continue to proceed diligently

Appendix

Schedule 1
Form of Surety Bond to be given by the Contractor to the Employer

Schedule 2
Form of Warranty to be given by the Nominated Sub-Contractor to the Employer in consideration of Nomination

Schedule 3
Form of Warranty to be given by the Nominated Supplier to the Employer in consideration of Nomination

Index to the General Conditions

 

Articles of Agreement

This Agreement

is made on the . . . . . . . . day of . . . . . . . . 20. . .

Between

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  (‘the Employer’) and . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  (‘the Contractor’)

# wording simplified. #

# "the Contractor" instead of "the Main Contractor". #

(1)     Whereas the Employer wishes to have work carried out comprising: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  (‘the Works’) at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  and has had Tender Documents comprising:

(a)        a form of tender (‘The Form of Tender’);

(b)        drawings (‘the Contract Drawings’);

(c)        a specification (‘the Specification’) and

(d)        bills of quantities

showing and describing the work to be carried out prepared by or under the direction of or at the request of the Architect;

# Take care when using words like "work", "works" and "Works". #

# "comprising" is without "of".  #

# A definition of "Tender Documents" is introduced in the New Forms. #

# The Form of Tender and the Specification are introduced in the New Forms. #

# Drawings issued as part of the Tender Documents will become Contract Drawings. #

# "under the direction of or at the request of" covers those prepared by other consultants. #

and whereas the Contractor has, based on the Tender Documents, made in the Form of Tender his calculation of the sum that he will require for carrying out the Works by pricing the bills of quantities;】

and whereas the Contractor has given a fully priced copy of the bills of quantities (‘the Contract Bills’) to both the Employer and the Architect;】

# "the Contract Bills" is defined here. "bills of quantities" are given in small letters. The fully priced bills of quantities will become the Contract Bills. #

and whereas the Architect has given each party one copy of the Articles of Agreement, the Appendix, the Conditions, the Contract Drawings, the Specification and the Contract Bills each signed by or on behalf of the parties.】

# The list is not comprehensive enough to cover the whole set of Contract Documents, e.g. the Form of Tender and tender correspondence are missing.  #

(2A)     and whereas the Contractor has, based on the Tender Documents, made in the Form of Tender his calculation of the sum that he will require for carrying out the Works by preparing and pricing the Schedule of Quantities and Rates;1

(2B)     and whereas the Contractor has accepted a schedule of quantities and rates prepared by the Quantity Surveyor as the Schedule of Quantities prepared by himself;2 』

(2C)     and whereas the Contractor has, based on the Tender Documents, made in the Form of Tender his calculation of the sum that he will require for carrying out the Works by pricing the Schedule of Quantities and Rates;3 』

『footnote 1 Delete 2A if the Quantity Surveyor prepared the Schedule of Quantities and Rates』

『footnote 2 Delete 2B if the Contractor prepared the Schedule of Quantities and Rates』

『footnote 3 Delete 2C if the Contractor prepared the Schedule of Quantities and Rates』

# Delete either 2A or 2B+2C according to the Footnote in the Form of Contract. #

# i.e. Keep 2A if the Contractor prepared the Schedule of Quantities and Rates. #

# i.e. Keep 2B and 2C if the Quantity Surveyor prepared the Schedule of Quantities and Rates (with or without quantities inserted) for the Contractor's use. It would read easier if 2B and 2C were combined into one article. #

(3)     and whereas the Contractor has given to the Employer the Schedule of Quantities and Rates setting out the build up of the Contract Sum;』

(4)     and whereas the Architect has given each party one copy of the Articles of Agreement, the Appendix, the Conditions, the Contract Drawings, the Specification and the Schedule of Quantities and Rates each signed by or on behalf of the parties.』

# The list is not comprehensive enough to cover the whole set of Contract Documents, e.g. the Form of Tender and tender correspondence are missing.  #

Now it is agreed as follows

Article 1

The Contractor will carry out and complete the Works in accordance with and subject to the Contract for the consideration stated in Article 2.

# As a promise, the term "will" is used in the Articles. As an obligation, the term "shall" is used in the Conditions of Contract.  #

# "carry out" does not necessarily mean to include "complete". Therefore, both terms are used. Similarly style should be used in the Bills of Quantities and Specification. #

# "consideration" means the price to be paid. #

Article 2

The Employer will pay to the Contractor the sum of Hong Kong Dollars . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  (HK$. . . . . . . . . . . . . . . ) (‘the Contract Sum’) or such other sum that becomes payable in accordance with and subject to the Contract.

# The Contract Sum is adjustable even for lump sum contract. #

Article 3

The Architect will be . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

< alternatively: The Contract Administrator will be . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  The term ‘the Architect’ in the Contract shall read ‘the Contract Administrator’. >

# Use this in case of no Architect. #

Article 4

The Quantity Surveyor will be . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 5

(1)     In the event of the person appointed to act as either the Architect or the Quantity Surveyor ceasing to act, the Employer shall will》 appoint a replacement as soon as practicable.

# "will" should be used in keep the style of the Articles. #

(2)     If the Contractor objects to the person appointed to succeed either the Architect or the Quantity Surveyor, the Contractor has the right to refer his objection to an arbitrator under the Contract provided the reference to arbitration is made within 14 days of the appointment.

# "object to" is a phrasal verb. #

(3)     The person appointed as the replacement to the Architect or the Quantity Surveyor shall continue to act pending the award of the arbitrator appointed under Article 5(2) but shall immediately cease to act if so directed by the arbitrator’s award. In which case the Employer shall will》 appoint a further replacement as soon as practicable.

(4)     The Contractor shall have the right of objection under Article 5(2) to a further appointment of either the Architect or the Quantity Surveyor.

(5)     A person appointed as the replacement to the Architect or the Quantity Surveyor shall not be entitled to disregard or overrule any agreement, approval, certificate, confirmation, consent, decision, direction, dissent, instruction, notice, notification, opinion, request or requirement given or made by the person previously appointed save insofar as the Contract permits.

# The Employer cannot therefore appointment a replacement to overrule decisions of the Architect or the Quantity Surveyor disliked by him. This would be for the Contractor's protection. However, this Article may also work in such a way to restrict the replacement from relaxing the predecessor's decisions.  Therefore, a better Article would be that the replacement should not disregard or overrule to the disadvantage of the Contractor. #

Article 6

If a dispute arises under or in connection with the Contract, the parties agree to resolve the dispute in accordance with the dispute settlement procedures in clause 41.

Attestation

*SIGNED AND SEALED as a deed / SIGNED by the Employer

# When an option is included for signing the Contract as a deed, the Employer would be tempted to demand for a deed. #

# According to the Limitation Ordinance (Chapter 347), actions founded on simple contract or on tort shall not be brought after the expiration of 6 years from the date on which the cause of action accrued, and actions founded upon a deed shall not be brought after the expiration of 12 years from the date on which the cause of action accrued. #

 

. . . . . . . . . . . . . . . . .  . . . . . . . . . . . . . . . . . 
(signature of signatory for the Employer) (signature of witness)
. . . . . . . . . . . . . . . . .  . . . . . . . . . . . . . . . . . 
. . . . . . . . . . . . . . . . .  . . . . . . . . . . . . . . . . . 
(name and office held by signatory for the Employer) (name and occupation of witness)

# The way to sign and witness is clearer, but it is better to give an example to the Contract Parties when they are requested to sign. #

(company seal to be impressed here if executed as a deed by a limited company)

# A company seal is no longer mandatory under the new Companies Ordinance (Cap. 622) which replaces the Companies Ordinance (Cap. 32) effective from 3 March 2014. #

*SIGNED AND SEALED as a deed / SIGNED by the Contractor

 
. . . . . . . . . . . . . . . . .  . . . . . . . . . . . . . . . . . 
(signature of signatory for the Contractor) (signature of witness)
. . . . . . . . . . . . . . . . .  . . . . . . . . . . . . . . . . . 
. . . . . . . . . . . . . . . . .  . . . . . . . . . . . . . . . . . 
(name and office held by signatory for the Contractor) (name and occupation of witness)

(company seal to be impressed here if executed as a deed by a limited company)

*delete as applicable

The General Conditions

# The term "General Conditions" is introduced in the New Forms. #

1  Interpretation and definitions

# Entirely new clause added. #

Governing law

1.1     The Contract shall be governed by and construed according to the laws for the time being in force in Hong Kong.

Singular, plural, masculine and feminine

1.2     Words in the singular include the plural and vice versa, and words in the masculine include the feminine and the neuter.

Method of reference to clauses and Articles

1.3     Unless stated otherwise a reference in the Articles, the Conditions or the Appendix to any clause means that clause of the Conditions and a reference to an Article means that Article of the Articles of Agreement.

# When an Article number is referred to, "Article" instead of "article" is used. When a clause number is referred to, "clause" instead of "Clause" is used. #

Articles of Agreement, Conditions and Appendix to be read as a whole

1.4     The Articles of Agreement, the Conditions and the Appendix are to be read as a whole. Therefore, unless stated otherwise, each one must be read subject to any relevant qualification or modification in any other one.

Clauses divided into sub-clauses to be read as a whole

1.5     Where a clause is divided into sub-clauses, the clause is to be read as a whole, and each sub-clause shall relate to the others as if there was no division between them.

# A typical example of a divided clause which should be read as if there was no division within it is the definition of "Variation" below. #

Definitions

1.6     The following words and phrases in the Articles of Agreement, the Conditions and the Appendix shall have the meanings given below unless the context in which they appear requires otherwise or the Articles, the Conditions or an item or entry in the Appendix provides otherwise:

Appendix: the Appendix to the Conditions.

Architect: the person named as the Architect in Article 3, or any successor appointed under Article 5.

Articles or Articles of Agreement: the Articles of Agreement to which the Conditions are annexed.

Commencement Date: the date stated in the Appendix for the commencement of the Works.

# This is a new term introduced in the New Forms, but has problem. Since "the Works" should include every work or services making up the Works, therefore, commencement of off-site preparation immediately after the award of the Contract can also be regarded as the commencement of the Works. Therefore, a definition of "the commencement of the Works" should be given to avoid doubt. The "official" commencement of the Works can be defined to mean the Date of the Letter of Acceptance, the Date of Possession, the date of commencement of work on site, the date of issue of a certain Government consent, etc. The other provisions of the Forms should be checked to see where "Commencement Date" is used to ensure compatibility with the definition.  "commencement of work on site" should be used where appropriate to distinguish it from "commencement of the Works". #

communication: the giving, submitting or issuing of, without limitation, any agreement, approval, authorisation, certificate, confirmation, consent, decision, delegation, direction, dissent, determination, endorsement, instruction, notice, notification, opinion, request, requirement or statement.

# "without limitation" is used instead of the other style of "including, but not being limited to, . .". #

Completion Date: the date stated in the Appendix by which the Works or a Section are to be completed or such later date to be fixed by the Architect under clause 25.

# While "Date for Completion" can mean a target date to be achieved, and "Date of Completion" can mean the actual date achieved, "Completion Date" would more likely mean "Date of Completion" based on the ordinary sense of the term. Here, it means the original Date for Completion or the extended Date for Completion. Therefore the simplified term actually complicates the use. Terms like "original", "contract", "revised", "extended", "actual" or "certified" may need to be added to clarify the meaning. #

Conditions: the Conditions of Agreement and Schedule of Conditions of Building Contract for use in the Hong Kong Special Administrative Region, Private Edition – 【With Quantities and any Special Conditions.】『Without Quantities and any special Conditions.』

# "Conditions" is defined in include any special Conditions as well. Therefore, it would be proper to say "Conditions" or "General Conditions and Special Conditions", but not "Conditions and Special Conditions". #

Contract: the Articles of Agreement, the Appendix, the Form of Tender submitted by the Contractor, the Employer’s letter of acceptance of the Contractor’s tender and any correspondence between the parties expressed to form part of the Contract, the Special Conditions, if any, the Conditions, the Contract Drawings, the Specification and 【the Contract Bills】『the Schedule of Quantities and Rates』.

# This actually gives a definition of the Contract Documents as well. #

# "the Conditions" here should have been "the General Conditions". # 

Contract Bills: the priced bills of quantities referred to in the third and fourth recitals of the Articles and submitted by the Contractor with his tender, or a certified true copy of those bills of quantities.】

# It does not appear necessary to include the phrase regarding a certified true copy. #

Contract Drawings: the drawings referred to in the first and fourth recitals of the Articles and enumerated as such in 【the Contract Bills or】the Specification.

Contract Sum: the sum stated in Article 2, or such other sum that becomes payable in accordance with the Contract.

Contractor: the person named as the Contractor in the Articles.

Contractors’ All Risks Insurance of the Works: insurance which provides cover against physical loss of or damage to the Works, temporary works and materials and goods, as described in clause 22.

# "Contractors' All Risks" with the apostrophe after "s". #

# Note "loss of or damage to" as a standard phrase. #

Date for Possession of < alternatively: Date for Entering > the Site: the date or dates for the possession of < alternatively: for entering > the whole or parts of the Site stated in the Appendix under the reference to clause 23.1. 

# "Date for Entering the Site" or "Site Access Date" should be used when possession of the Site is not given to the Contractor, e.g. for maintenance repair or renovation of existing buildings. #

Date of Substantial Completion: the date stated in the Substantial Completion Certificate for the Works or a Section, issued by the Architect under clauses 17.1 and 17.2.

day: a calendar day and includes Sundays and other days which are general holidays by virtue of the General Holidays Ordinance (Chapter 149, Laws of Hong Kong).

# According to the Ordinance, every Sunday is a general holiday (公眾假期). #

# Statutory holidays (法定假日) are fixed by the Employment Ordinance (Chapter 57) and are different from general holidays. #

# "Public holidays" is a common term meaning general holidays but is not used in the Ordinance. #

Defects Liability Period: the period stated in the Appendix under the reference to clause 17.3, commencing on the day after the Date of Substantial Completion of the Works or a Section or the day after the Relevant Date of a Relevant Part.

# Note the words "commencing on the day after". The finish date is to be defined in the Appendix. The Defects Liability Periods of different Sections or Parts may be defined to end on different dates relative to their own or on the same date relative to the last Section. #

Defects Rectification Certificate: a certificate issued by the Architect to the effect that all defects, shrinkages and other faults have been rectified in accordance with the Contract, as described in clauses 17.4 and 17.5.

# A shorter term used in place of "Certificate of Completion of Making Good Defects". It is better to define that they are synonymous to relieve the problem of people keeping using the old terms when using the New Forms. #

direct loss and/or expense: the monetary consequences that flow naturally without other intervening cause and independently of special circumstances because of the direct consequences of a qualifying event and which are not otherwise reimbursed to the Contractor.

# A definition is introduced in the New Forms. #

# Hadley v. Baxendale: "Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either [1] arising naturally, i.e. according to the usual course of things from such breach of contract itself, or [2] such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it." "[1]" and "[2]" inserted. #

Domestic Sub-Contractor: a person, other than a Nominated Sub-Contractor, to whom the Contractor sub-lets any part of the Works and includes a labour only sub-contractor.

# A term introduced in the New Forms. #

Employer: the person named as the Employer in the Articles.

Engineer: a person engaged as a member of the Employer’s design team for the design and supervision of one or more of the geotechnical, civil, structural or building services elements of the Works, as referred to in clause 1.7.

# A role introduced in the New Forms. #

Excepted Risks:

(a)      Any consequence of war (whether war be declared or not) in which Hong Kong is actively engaged, the invasion of Hong Kong, acts of terrorists in Hong Kong, civil war, rebellion, revolution or military or usurped power in Hong Kong, riot, commotion or disorder in Hong Kong other than amongst the employees of the Contractor or any person for whom the Contractor is responsible;

(b)      the Architect’s design of the Works insofar as damage, loss or injury is the direct consequence of the design;

# Note the word "direct". #

(c)      a cause due to any neglect or default of the Architect, the Employer or any person for whom the Architect or the Employer is responsible;

< reinstate (c) on 9/9/2013, previously deleted >

# When including Excepted Risks as a listed event for extension of time, item (c) should be excluded to avoid unexpected duplication with other listed events which are in effect falling within the meaning of item (c). #

(d)      ionising radiation or contamination by radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel, radioactive toxic explosive or other hazardous properties of any explosive nuclear assembly or nuclear component thereof; and

(e)      pressure waves caused by aircraft or other aerial devices travelling at sonic or supersonic speeds.

Final Certificate: the certificate issued by the Architect stating the Final Contract Sum and the total of the amounts of Interim Certificates to be set off against that sum, as described in clause 32.8.

Final Contract Sum: the sum resulting from the adjustment of the Contract Sum in accordance with the Contract.

Form of Tender: the form of tender referred to in the first recital of the Articles as being part of the Tender Documents.

Hong Kong: the Hong Kong Special Administrative Region.

Interim Certificate: a certificate issued by the Architect stating the amount of an interim payment due to the Contractor, as described in clause 32.1.

Limit of Retention: the amount stated in the Appendix under the reference to clause 32.4 as the limit to the amount of Retention to be held by the Employer on the payment for the Contractor’s work in progress.

Nominated Sub-Contract: the sub-contract between the Contractor and a Nominated Sub-Contractor.

Nominated Supply Contract: the supply contract between the Contractor and a Nominated Supplier.

Nominated Sub-Contractor: a sub-contractor nominated by the Architect under clause 29 to carry out work forming part of the Works.

Nominated Supplier: a supplier nominated by the Architect under clause 29 to supply materials or goods for incorporation into the Works.

parties: the Employer and the Contractor.

Period of Interim Certificates: the period stated in the Appendix under the reference to clause 32.1 as the interval between the issuing of Interim Certificates.

person: an individual, firm, partnership, or body corporate.

person for whom the Contractor is responsible: the Contractor’s servants or agents, sub-contractors, suppliers, persons employed or engaged in connection with the Works and persons who may properly be on the Site upon or in connection with the Works other than the Employer or any person for whom the Employer is responsible.

# "servants" means "employees". "engaged" does not equal to "employed". #

person for whom the Employer is responsible: the Employer’s servants or agents and the persons listed in clause 30.1.

Postpone: to defer the commencement of operations on an activity.

# "postpone" refers to commencement. #

Prime Cost Sum: a sum either provided in the Contract Bills or arising as described in clause 29.1 for work to be carried out by a Nominated Sub-Contractor or for materials or goods to be obtained from a Nominated Supplier.

# Note "or arising" as alternatives. #

Provisional Item: an item of work identified as provisional in the Contract 【Bills】 to be carried out by the Contractor if instructed to do so by the Architect under clause 13.2.

# "Provisional Item" and "Provisional Quantities" are treated as two separate things here, while "Provisional Quantities" is usually taken to refer also to those items with a unit of "Item". #

Provisional Quantities: an estimated quantity of work identified as provisional in the Contract 【Bills】, where the actual quantity could not be accurately determined when the 【bills of quantities were】『 Contract was』 prepared, to be carried out by the Contractor if instructed to do so by the Architect under clause 13.2.

Provisional Sum: a sum provided in the Contract 【Bills】 for work or for costs, which could not be entirely foreseen, defined or detailed when the 【bills of quantities were】『Contract was』 prepared, to be paid to the Contractor if instructed by the Architect under clause 13.2 to carry out such work or incur such costs.

Quantity Surveyor: the person named as the Quantity Surveyor in Article 4, or any successor appointed under Article 5.

Relevant Date: the date upon which the Employer took possession of a Relevant Part under clause 18.

Relevant Part: the part of the Works or part of a Section taken possession of by the Employer under clause 18 before Substantial Completion of the Works or that Section.

Retention: the sum calculated in accordance with clause 32.4 and retained by the Employer from the gross valuation of the Contractor’s work in progress included in an Interim Certificate.

Retention Percentage: the percentage entered in the Appendix under the reference to clause 32.4, used to calculate the Retention in accordance with the rules set out in that clause.

Section: a part of the Works for which a separate Completion Date is stated in the Appendix where the Contract provides for sectional completion of the Works.

Site: the land and other places provided by the Employer for the purpose of carrying out the Works.

Special Condition: a condition of contract expressly referred to as a Special Condition of Contract, which adds to or amends the Conditions and is annexed to the Conditions.

special delivery: a communication which is either delivered by courier or sent by registered post or recorded delivery.

Specialist Contractor: a person, not being a statutory undertaker or utility company as referred to in clause 6.4(1), engaged by the Employer to carry out work directly connected with or ancillary to but not forming part of the Works, as described in clause 30.

# A term introduced in the New Forms. Sometimes called "Direct Contractor" or "Separate Contractor" or "Separate Specialist Contractor". #

# A statutory undertaker or utility company may or may not be regarded as a Specialist Contractor, depending on their role, as defined by clause 6.4(1). #

Specialist Works: work directly connected with or ancillary to but not forming part of the Works, to be carried out by a Specialist Contractor.

Specification: the specification referred to in the first and fourth recitals of the Articles which describes, without limitation, the types, standards and quality of the materials and goods to be used, the standard and quality of workmanship required, the manner in which work processes are to be carried out, the performance requirements and other matters and things relating to the construction of the Works.

Specified Perils: fire, lightning, explosion, storm, tropical cyclone, flood, bursting or overflowing of water tanks, apparatus or pipes, earthquake, aircraft and other aerial devices or articles dropped from them.

# Care should be exercised to ensure that the use of the term "Specified Perils" elsewhere would not have unexpected consequences, e.g. some perils can be caused by the Contractor or persons for whom he is responsible; Specified Perils are listed events for extension of time purposes but storm and tropical cyclone as Specified Perils would duplicate other listed events. #

Standard Conditions of Nominated Sub-Contract: the Standard Form of Sub-Contract for use where the sub-contractor is nominated under the Standard Form of Building Contract.

Standard Conditions of Nominated Supply Contract: the Standard Form of Supply Contract for use where the supplier is nominated under the Standard Form of Building Contract.

sub-contractor: a person who enters into a sub-contract with the Contractor to carry out work forming part of the Works and includes a Domestic Sub-Contractor and a Nominated Sub-Contractor.

Substantial Completion: the state of completion where the Works or a Section have been substantially completed to the Architect’s satisfaction and have passed the required inspections and tests, as referred to in clauses 17.1 and 17.2.

# "Substantial Completion" used in place of "Practical Completion" with no particular reason. It is better to define that they are synonymous to relieve the problem of people keeping using the old terms when using the New Forms. #

# "and have passed the required inspections and tests" is a special introduction. #

Substantial Completion Certificate: a certificate issued by the Architect stating the date when in his opinion the Works or a Section have reached Substantial Completion.

substantially completed: the state of completion where the Works or a Section may not be absolutely completed or entirely free from defects but have reached the stage where they can be taken over and used by the Employer for their intended purpose and where the unfinished items of work and the remaining defects then patent are only of a minor nature and extent and their completion or rectification will not unreasonably interfere with or interrupt the taking over of the Works or Section.

# A rather full definition introduced in the New Forms. #

supplier: a person who enters into a supply contract with the Contractor to supply materials or goods and includes a Nominated Supplier.

suspend: to cease operations for a period of time on an activity in which work has commenced.

# "suspend" occurs after commencement. #

Tender Documents: the documents and drawings referred to in the first recital of the Articles, or a certified true copy of those documents and drawings.

# "Tender Documents" does not refer to the documents but also include drawings. #

# It does not appear necessary to include the phrase regarding a certified true copy. #

Valuation: the valuation made by the Quantity Surveyor, in accordance with the valuation rules under clause 13.4, of work carried out in response to an Architect’s instruction requiring a Variation, remeasurement of Provisional Quantities and Provisional Items or to expend Provisional Sums.

# "Valuation" is now capitalised with a defined meaning. #

Variation: a change instructed by the Architect to the design, quality or quantity of the Works including:

# "Variation" is now capitalised with a defined meaning. #

(i)      an alteration to the type, standard or quality of any of the materials or goods comprising the Works;

(ii)      the addition, substitution or omission of work; and

(iii)      the removal from the Site of materials or goods and the demolition and removal of work except where provided for in the Contract or where the materials, goods or work are not in accordance with clause 8.1;

or the imposition of an obligation or restriction instructed by the Architect regarding:

# Variation has been extended to cover imposition of an obligation or restriction which is not physical work. Although the phrase "a change instructed by the Architect" cannot connect directly with "the imposition of", that should still be applicable. The sentence should be read in two parts as “a change instructed by the Architect . .” and “the imposition of any obligation or restriction instructed by the Architect”. The imposition would therefore mean something entirely new.#

(iv)      access to the Site or use of any parts of the Site;

(v)      limitation of working space;

(vi)      limitation of working hours; or

(vii)       the sequence of carrying out or completing work;

or the addition or alteration to or omission of such obligations or restrictions imposed by the Contract.

# It appears that "or the imposition of . . " and "or the addition or alteration to . . " can actually be combined to simply read "or the addition or alteration to or omission of an obligation or restriction imposed by the Contract as instructed by the Architect regarding . . ". #

Works: the work briefly described in the Articles of Agreement and shown upon, described by or referred to in the Contract including any change made to the work in accordance with the Contract.

# "Works" include changes to avoid argument that the Works refer to the original work only. #

Tenders based on Schedule of Quantities and Rates

1.7     (1)      The quality and quantity of the work included in the Contract Sum shall be deemed to be as shown upon the Contract Drawings and described in the Specification.

          (2)      The Contractor shall be deemed to have estimated his own quantities of the Works and shall submit, with his tender, a Schedule of Quantities and Rates setting out a build-up of the Contract Sum.

          (3)      The accuracy of the quantities in the Schedule of Quantities and Rates submitted by the Contractor shall be at the sole risk of the Contractor and the cost of any under or over estimation of quantities shall be deemed to have been allowed for in the rates {of for} the item concerned.

          (4)      The rates in the Schedule of Quantities and Rates shall form part of the Contract and shall be used for valuing Variations and estimating interim payments.

          (5)      Where any item which is required by the Contract has not been specifically priced in the Schedule of Quantities and Rates, the cost shall be deemed to have been included in the rates for other items.』

# Compare with clause 14 of the With Quantities Form. #

# This clause 1.7 for the Without Quantities Form should have been inserted at clause 14, instead of disturbing the clause number below and leaving clause 14 not used. #

# This clause assumes that the Schedule of Quantities and Rates is to be submitted by the Contractor during tendering. Only the rates would form part of the Contract. The quantities would not. While the descriptions of the items included in the Schedule of Quantities and Rates would be significant when applying the unit rates. The quality and quantity of the work included in the Contract Sum should be based on the Contract Drawings and the Specification. Therefore, without further stipulations, the item descriptions included in a pro-forma Schedule of Quantities and Rates issued for tendering cannot be considered as a supplement to the Contract Drawings and the Specification. Care should be exercised when relying on the item descriptions to supplement the Contract Drawings and the Specification. Some QS consultants would use the term “Schedule of Works” to declare that this forms part of the Specification, and the item descriptions supplement the Contract Drawings and the Specification, while leaving the quantities and rates to be entered by the tenderers. #

The role of the Engineer

【1.7】1.8 (1)      The Architect may, from time to time, delegate any of his duties and powers under the Contract to an Engineer.

          (2)      The delegation shall be in writing and copied to the Contractor. It shall specify the duties and powers that are delegated and shall remain in force until changed or terminated in writing by the Architect.

          (3)      Where in the context of the wording of a clause in the Conditions or where recognition of the Engineer’s statutory responsibility requires it, the word ‘Architect’ in the Conditions shall be deemed to be read as ‘Engineer’.

# A role introduced in the New Forms. It can be structural, M&E or others. #

Sectional completion of the Works

【1.8】1.9 (1)      Where sectional completion of the Works is provided for in the Contract, a reference to the Works shall be deemed to mean the Works or a Section.

# . . as the case may be. #

          (2)      The phrase ‘the whole of the Works’ means the Works including all Sections.

# Sub-clause (2) serves as an emphasis only. The Works should also mean the whole of the Works. If a Section is referred to, it is better to use the term "the Section". #

Communications

【1.9】1.10 Unless otherwise stated, all notices, certificates and other communications under the Contract between the Employer, the Architect, the Quantity Surveyor and the Contractor shall be in writing.

# It is important to exchange matters of contractual implication in writing. #

Notices of default or determination to be sent by special delivery

【1.10】1.11 All notices of default or determination under clauses 35, 36 and 37 shall be sent by special delivery.

Parties to act reasonably and expeditiously

【1.11】1.12 (1)      The parties, the Architect and the Quantity Surveyor shall act reasonably and expeditiously in all matters under the Contract including, without limitation, giving or withholding consent, approval or agreement, valuing Variations and certifying.

# It is a very significant point introduced in the New Forms. It is unlikely that the Employer would dare to ask for a deletion of this Clause. #

          (2)      All requirements shall be reasonable requirements and, without limitation, the term “to the Architect’s satisfaction” shall be construed as meaning to the Architect’s reasonable satisfaction and the term “practicable” shall mean reasonably practicable.

# Also a very significant point introduced in the New Forms. #

2  Contractor's obligations

Contractor’s obligations

2.1      (1)      The Contractor shall in compliance with the Contract:

# The traditional responsibility for carrying out and completing the Works has very much been expanded in line with present day practice. While this imposes obligations upon the Contractor, this also reserves the rights and means to do so to the Contractor. #

(a)      organize, manage, plan and supervise the carrying out of the Works;

(b)      co-ordinate the carrying out of the Works including the interface between his own work and the work carried out by each Domestic Sub-Contractor, Nominated Sub-Contractor, Specialist Contractor, statutory undertaker and utility company;

(c)      assist in the coordination of their work by each Domestic Sub-Contractor, Nominated Sub-Contractor, Specialist Contractor, statutory undertaker and utility company with the work of each of the others;

(d)      design sufficient, safe and adequate temporary works to enable the Contractor to comply with his other obligations under the Contract, except where the design of any temporary works is a statutory obligation of any person other than the Contractor or any person for whom the Contractor is responsible;

# The design responsibility for temporary works rests with the Contractor by default. #

(e)      carry out any work involved in the development of the Architect’s design that may be specified in the Contract; {carry out the design of any part of the permanent Works that may be specified in the Contract;}

# Amendment in {} would be required if the Contractor's responsibility is not limited to design development. It is in fact very difficult to distinguish between design development and primary design. #

(f)      prepare all shop drawings and co-ordination drawings required by the Contract;

# A narrower meaning of "shop drawings" would be those required for manufacture off-site or at workshop on site. However, a wider meaning would include "installation drawings" to be developed by the Contractor for building services installations for on-site installation. #

(g)      carry out the maintenance of mechanical and electrical {equipment systems} where required to do so by the Contract for the period of time so specified;

# "maintenance" should mean something more than defects rectification. "equipment" would be too limited, and "systems" should be preferred. #

(h)      take responsibility for the care of the Works, except for loss or damage arising from the Excepted Risks, from the Commencement Date {or the Date for Possession of the Site whichever is earlier  < alternatively: or the Date for Entering the Site whichever is earlier >} until 14 days after Substantial Completion of the Works or 14 days after the determination of the employment of the Contractor, whether valid or not, whichever is earlier, except that the Contractor’s responsibility for the care of the Works shall terminate in relation to a Section or Relevant Part 14 days after the Employer takes possession of that Section or Relevant Part; and

# It may be possible that the official Commencement Date is later than the Date for/of Possession, and there could be some preparatory work during the interim period. Such preparatory work should be deemed to be part of the Works requiring the care of the Contractor. #

# Although not dealt with here, there could also be liability towards employees and third party during this interim period. #

# The period of 14 days after Substantial Completion gives some float time for certification and demobilisation. Government Standard Forms specify a longer period of 28 days after Substantial Completion. #

(i)      carry out the construction of and complete the Works using materials, goods and workmanship of the types, standards and quality specified in the Contract.

           (2)      Where the Contract requires the Contractor to prepare details, to carry out the design or the development of the Architect’s design, unless the requirement of fitness for purpose is specifically stated, the design or the development of the Architect’s design shall be carried out with reasonable skill and care and the Contractor shall be responsible to the Employer for such work.

# If "fit for the intended purpose" is desired, it should be specifically stated. #

Contractor’s responsibility

2.2      The Contractor shall remain wholly responsible for carrying out and completing the Works in accordance with the Contract whether or not the Architect or the Architect’s representative, if appointed:

(a)      visits the Works or a place where materials or goods are being manufactured or stored, work is being prepared, or design is being carried out;

(b)      inspects or tests any materials or goods;

(c)      exercises his powers under clause 8; or

(d)      includes the value of any materials, goods or work in an Interim Certificate.

Contractor’s skill and care

2.3     The Contractor shall exercise in the performance of his obligations under the Contract all the skill, care and diligence to be expected of a competent contractor experienced in carrying out work of a similar scope, nature and size to the Works.

Contractor to inform Architect if he finds ambiguities in documents

2.4      (1)      The Contractor shall immediately inform the Architect if the Contractor finds an ambiguity or discrepancy in or divergence between the following documents:

(a)      the Contract Drawings;

(b)      the Specification;

       【(c)      the Contract Bills;】

       【(d)】『(c)』 the descriptive schedules and other similar documents referred to in clause 5.3;       

       【(e)】(d) the Nominated Sub-Contract documents and the Nominated Supply Contract documents referred to in clauses 5.4 and 5.5; and

       【(f)】『(e)』 the further drawings, details, descriptive schedules and similar documents referred to in clauses 5.6 provided from time to time during the carrying out of the Works.

          (2)      If the Architect agrees with the Contractor, he shall issue an instruction to resolve the ambiguity, discrepancy or divergence as soon as practicable after receipt of the notice from the Contractor and the instruction shall, if considered appropriate by the Architect, require a Variation.

3  Master programme

# Entirely new clause added to the New Forms. #

Master programme to be submitted

3.1      (1)      The Contractor shall submit to the Architect within the time stated in the Appendix:

(a)      6 copies of a master programme prepared for his own purposes for organising, managing, planning, supervising and co-ordinating the carrying out of the Works and completing them by the Completion Date;

(b)      a method statement describing the methods of construction and the resources that he intends to use to carry out the Works;

(c)      a list of the names and details of the site management and supervisory team personnel, referred to in clause 10, with job descriptions and details of their durations on the Site; and

(d)      a list of the plant, equipment and temporary works which he intends to supply, use or construct, as the case may be.

(2)      The master programme shall:

(a)      show the activities and the sequence in which the Contractor proposes to carry out the Works;

(b)      show the periods of time estimated for each activity; and

(c)      make allowance for the carrying out of Specialist Works, insofar as a general description of these works is given in the Contract, and work by statutory undertakers and utility companies as referred to in clause 6.4(1).

(3)      The Contractor shall submit 6 copies of any other programme that may be required by the Contract at the time or times so specified.

(4)      Where any other part of the Contract sets out requirements in respect of the submissions to be made by the Contractor under clause 3.1, the submissions shall be made in accordance with those requirements.

Programmes to be updated

3.2      (1)      The Contractor shall regularly update the master programme and any other programme used in carrying out the Works to reflect the current status of the progress of the Works, and shall submit 6 copies of the updated programme to the Architect at the intervals stated in the Contract (or, if this is not stated, at {3 1} month intervals) and in any event within {28 7} days of:

(a)      an Architect’s decision to fix a new Completion Date under clause 25.3;

(b)      the Employer taking possession of a Section or a Relevant Part of the Works;

(c)      the determination of the employment and re-nomination of a Nominated Sub-Contractor; or

(d)      the termination of a supply contract and re-nomination of a Nominated Supplier.

          (2)      The programme shall be revised to indicate the modifications that the Contractor believes are necessary to achieve completion of the Works by the Completion Date if the Contractor decides to take action in response to the Architect’s notice under clause 25.5.

          (3)      Programme updates shall be based upon the logic, activities and durations shown in the previous programme. Any change to the programme structure apart from activity status that may be necessary shall be clearly indicated and explained to the Architect.

Programme and other documents not to be documents forming the Contract

3.3     Neither the programme, the method statement nor other document submitted under clause 3 shall be documents forming the Contract and no comment made by the Architect on any of these documents shall impose an obligation on the Employer.

4  Architect's instructions

Architect may issue instructions up to the issue of the Final Certificate

4.1     The Architect may issue instructions that he is empowered to issue under the Conditions at any time up to the issue of the Final Certificate including during the time that the Contractor may be carrying out work after the Date of Substantial Completion of the Works, but he shall not instruct a Variation after the issue of the Defects Rectification Certificate for the Works, a Section or a Relevant Part as the case may be.

# Instructions must be within authority. #

# It is now clear that instructions can be issued as late as the issue of the Final Certificate, but Variations must be instructed before the issue of the Defects Rectification Certificate. It is reasonable because changes may be found necessary during the time of defects rectification, but there should be no more changes after the Defects Rectification Certificate. #

Architect to issue instructions in writing

4.2     (1)      The Architect must issue all instructions in writing in accordance with clause 1.9. All oral instructions given must be confirmed in writing within 5 days of giving the oral instruction. If the Architect gives an oral instruction that the Contractor believes requires a Variation it shall have no immediate effect, the Contractor shall confirm the oral instruction requiring a Variation in writing to the Architect within 7 days of it being issued and if not dissented to in writing by the Architect within 7 days from his receipt of the Contractor’s confirmation the Variation shall take effect on the expiry of the latter 7 days.

# The term “verbal instruction” more often used. #

# Note the phrasal verb “dissented to”. “dissented from” used in the Old Forms. #

# “5 days” to confirm an oral instruction by the Architect himself would be a matter of good practice. He can still issue a written instruction at any time after 5 days. The instruction is only effective after the written one. Proviso (b) of Clause 2(3) of the Old Forms would still apply, even though it is not expressly stated in the New Forms. #

# Efficient Contractor should confirm the important and cost significant oral instruction soon after hearing without waiting for the lapse of the 5 days.#

# Oral instruction + 7 days for Contractor’s written confirmation + 7 days of no Architect’s written disagreement = deemed confirmed. #

         (2)      Where an Architect’s oral instruction requiring a Variation has been confirmed in writing by the Contractor under clause 4.2(1) and not dissented to by the Architect, the Architect shall issue the written instruction for a Variation for record purposes as soon as practicable after the Contractor’s confirmation.

# For record purposes only. Confirmation not overruled if written instruction not subsequently issued. However, in practice, the written confirmation by way of a formal instruction form or letter would still be pursued by the Quantity Surveyor for the purposes of the Final Account to ensure that there would not have been rejection, not communicated to the Quantity Surveyor, of the Contractor’s written confirmation. #

Compliance with Architect’s instructions

4.3     (1)      Subject to clauses 4.2(1) and 4.3(2), the Contractor shall comply with all instructions that the Architect is empowered by the Conditions to issue as soon as practicable. If there is a disagreement between the Architect and the Contractor as to whether an instruction involves a Variation, the Contractor shall comply with the instruction and may, if he is not satisfied, require the disagreement to be resolved under clause 41.

         (2)      If the Contractor disagrees that the Architect is empowered by the Conditions to issue an instruction《,》 he may within 7 days of receipt of that instruction require the disagreement to be resolved under clause 41.

# Sub-clause (1) uses the words “an instruction involves a Variation” while sub-clause (2) uses the word "an instruction” only. Whether an instruction involves a Variation or not, if the Contractor disagrees that the Architect is empowered, he should raise objection because if he does not comply with an instruction not involving a Variation, he may face a deduction if other persons are engaged to carry out the instruction. The two sub-clauses should have been combined to simplify and reduce inconsistencies. #

# Arbitration over the Architect’s power can be commenced before Substantial Completion. #

# There is no express provision similar to Clause 2(2) of the Old Forms stating that compliance with no objection would be deemed acceptance of authority, but it would be appear that the implication would practically be the same. #

         (3)      If the Contractor does not begin to comply with an instruction within 7 days after receipt of a written notice from the Architect requiring compliance with that instruction in accordance with clause 4.3(1) and the Architect issues a certificate to that effect by special delivery, the Employer may, without prejudice to his other rights and remedies, engage other persons to carry out that instruction. All additional costs incurred by the Employer in connection with the employment of the other persons to carry out that instruction may be recovered from the Contractor under clause 40 or as a debt.

# Starting material procurement should satisfy “begin to comply”. This would be significant when the Architect would want to have the compliance be finished as soon as possible but the Contractor may require long lead delivery. #

# It is 7 days after the warning notice, not after the original instruction. #

# The terms “engage” and “employment” have been used inconsistently here to mean the same thing.

# It would be difficult to value the cost to be deducted if the instruction requires Variation addition which has no applicable contract rates. Argument would likely to arise if the Contractor refuses to carry out the Variation addition because he considers that the Quantity Surveyor has grossly under-valued it. #

# The additional costs incurred “in connection with” the employment of other persons would not be restricted to the payment to the other persons. The Contractor’s expense in arranging the employment should also form part of the additional costs. Whether the additional costs can extend to include the costs of delays and disruptions caused by the non-compliance with instruction is uncertain. #

         (4)      The Contractor shall provide reasonable access to the persons engaged by the Employer under clause 4.3(3) and shall permit them to carry out their work without hindrance.

Contractor to carry out preventative work

# Entirely new clause added to the New Forms. #

4.4     (1)      In the event of an emergency caused by an event arising out of or in connection with the Works that threatens the safety of the Works or any person or property, the Contractor shall immediately:

(a)      carry out all necessary preventative work without waiting for an Architect’s instruction; and

(b)      immediately inform the Architect of the emergency and of the action taken or preventative work being carried out.

         (2)      The Architect shall issue an instruction confirming a Variation for preventative work carried out initially without an Architect’s instruction, provided that the work was not required to be carried out in fulfilment of a Contractor’s obligation or because of a breach of contract or other default by the Contractor or any person for whom the Contractor is responsible.

5  Documents forming the Contract and other documents

The documents forming the Contract

# Entirely new clause added to the New Forms. #

# “Contract Documents” is loosely defined by way of Article 1 and Clause 3(2) in the Old Forms. #

5.1     (1)      The documents forming the Contract shall be:

(a)      the Articles of Agreement and the Appendix;

# It is reasonable to separate these from the Conditions, because the Conditions are issued with the Tender Documents, while the Articles and Appendix are the final documents to be completed with the latest information prior to contract signing. This would offer the last chance for new terms. #

(b)      the Form of Tender submitted by the Contractor together with the Employer’s letter of acceptance of the Contractor’s tender and any correspondence between the parties expressed to form part of the Contract;

# It is important to expressly list out the correspondence forming part of the Contract. #

(c)      the Special Conditions if any;

(d)      the Conditions;【and】

       【(e)      the Contract Drawings, the Specification and the Contract Bills.】

# For the With Quantities Form, the order of precedence of the three is not stated here but stated in clause 5.1(2), which is longer for the With Quantities Form. #

        『(e)      the {Contract Drawings Specification};

(f)        the {Specification Contract Drawings}; and

(g)       the Schedule of Quantities and Rates.』

# For the Without Quantities Form, it is not understood why, contrary to the Old Forms, the Contract Drawings should take precedence over the Specification. Note that the Specification would include the very important preliminaries section. The suggested changes here are to keep the old practice. #

           (2)      The order of precedence of the documents forming the Contract shall be as listed in paragraphs 【(a) to (e) above and:】『(a) to (g).』       

【(a)      for the purpose of adjusting the Contract Sum{,} the Contract Bills shall take precedence over the Contract Drawings and the Specification{, and the Specification shall take precedence over the Contract Drawings unless otherwise stated in the Specification}; but】

# Without the suggested addition, it is not clear whether the Specification or the Contract Drawings should take precedence between them. #       

【(b)      for all other purposes including carrying out the construction of and completing the Works《,》 the Contract Drawings and the Specification shall take precedence over the Contract Bills.】

# The Without Quantities Form does not have paragraphs (a) and (b). The precedence is stated in clause 5.1(1), #

# Paragraph (a) is to deal with the coverage of the Contract Sum. Paragraph (b) attempts to say that for the actual carrying out of the Works, the Contract Drawings and the Specification should be followed. However, this is not without problem. The Contractor cannot simply follow the Contract Drawings and the Specification without regard to the Contract Bills. It is highly possible that the Contract Bills, having been carefully prepared based on the Contract Drawings and the Specification, represent the real intent better. If the Contractor does not check for and seek clarifications over obvious apparent discrepancies in accordance with clause 2.4, he may be in trouble. #  

『(3) As provided for in clause 1.7, the accuracy of the quantities in the Schedule of Quantities and Rates shall be at the Contractor’s risk. The quantities shall not form part of the Contract but the rates shall form part of the Contract.』

# It seems strange to repeat the essence of clause 1.7 here, though very much simplified. #

Architect and Quantity Surveyor to keep documents available

5.2     The Architect shall provide two copies, certified on behalf of the Employer as a true copy, of each of the documents forming the Contract and two certified true copies of each of the documents forming the Nominated Sub-Contracts and the Nominated Supply Contracts as referred to in clauses 5.4 and 5.5, and the Architect and the Quantity Surveyor shall both keep one of each of these copies available at all reasonable times for the purposes of the Contract.

# These copies are in addition to those to be provided to the Contractor under clause 5.3. #

Copies of documents for Contractor

5.3     As soon as practicable after the acceptance of the Contractor’s tender the Architect shall provide the Contractor, without charge, with:

(a)      1 copy, certified on behalf of the Employer as a true copy, of each of the documents forming the Contract;

(b)      3 further copies of the Contract Drawings and the Specification;

(c)      3 copies of the unpriced bills of quantities; and

(d)      3 copies of any descriptive schedules or other similar documents prepared by or under the direction of the Architect before the acceptance of the Contractor’s tender and necessary for use in carrying out the Works.

# In reality, the number of copies provided may still follow the old practice. Electronic copies may also reduce the number of hard copies. #

Nominated Sub-Contract documents

5.4     The Architect shall provide the Contractor, without charge, with 3 further copies of the Nominated Sub-Contract, the sub-contract drawings, the sub-contract specification, the sub-contract 【bills of quantities or】 schedule of quantities and rates, as the case may be, descriptive schedules and other similar documents as soon as practicable after the award of each Nominated Sub-Contract.

Nominated Supply Contract documents

5.5     The Architect shall provide the Contractor, without charge, with 3 further copies of the Nominated Supply Contract, the supply contract drawings, the supply contract specification, the supply contract 【bills of quantities or】 schedule of quantities and rates, as the case may be, descriptive schedules and other similar documents as soon as practicable after the award of each Nominated Supply Contract.

# Clauses 5.4 and 5.5 can in fact be combined to make it simpler. #

Further drawings, details, descriptive schedules and similar documents

5.6     (1)      The Architect shall provide the Contractor, without charge, and from time to time during the carrying out of the Works, with 3 copies of all further drawings, details, descriptive schedules or similar documents (referred to in clause 5 as “the supplementary documentation”) that, in the Architect’s opinion, are reasonably necessary for use in carrying out the Works or to explain or amplify the Contract Drawings, the Nominated Sub-Contract drawings and the Nominated Supply Contract drawings.

# This is a reflection of the old day practice that the Bills of Quantities can describe everything so the Tender Drawings given to the tenderers are not the full set, and further drawings can be issued before the full set is bound into the Contract Drawings for signing to supplement what has been described in the Tender Documents without amounting to a Variation. #

# However, modern day practice would be to give the full set of Tender Drawings to the tenderers. Therefore, supplementary documentation would likely contain some changes and formal instructions would be expected when issuing such supplementary documentation. #

# This virtually means that every instruction should be accompanied with 3 copies of drawings. The number of copies would depend on the number to be further distributed to Nominated Sub-Contractors and Suppliers. To avoid argument, it may be necessary to specify in the Preliminaries the number of sets of documents to be given free of charge. #

         (2)      If in the Contractor’s opinion he requires more supplementary documentation than that provided by the Architect under clause 5.6(1), he shall submit a written request to the Architect specifying what further supplementary documentation he requires.

         (3)      It shall be at the sole discretion of the Architect to decide which, if any, of the supplementary documentation requested by the Contractor the Architect will provide.

# If the supplementary documentation is essential, it would be difficult for the Architect to argue for sole discretion. #

Documents to be provided to Contractor on time

5.7      (1)      The supplementary documentation referred to in clause 5.6 shall be provided when, having regard to the progress of the Works and the Contractor’s procurement, fabrication and other lead in times, it is reasonably necessary for the Contractor to receive it.

          (2)      The Contractor shall inform the Architect sufficiently in advance of the time that he requires the supplementary documentation to enable the Architect to fulfil his obligations under clause 5.7(1).

# It should be in the form of a specific request, rather than a milestone on the programme or an easily ignored item in regular reports or minutes. #

Electronic copies of drawings

5.8      If, within 14 days after the acceptance of the Contractor’s tender, the Contractor requests the Architect in writing to do so, the Architect shall provide the Contractor, without charge, with electronic copies of all of the drawings required to be provided under clauses 5.3, 5.4, 5.5 and 5.6 that have been produced electronically in lieu of the hard copies referred to in those clauses.

Documents on Site

5.9      The Contractor shall keep on the Site so as to be available to the Architect and the Quantity Surveyor at all reasonable times 1 copy of:

(a)      the Contract Drawings;

(b)      the Specification;

(c)      the 【unpriced bills of quantities】『Schedule of Quantities and Rates』;

(d)      the programmes and other documents referred to in clause 3;

(e)      the descriptive schedules or other similar documents referred to in clause 5.3 prepared by the Architect before the acceptance of the Contractor’s tender;

(f)      the Nominated Sub-Contract documents and Nominated Supply Contract documents referred to in clauses 5.4 and 5.5;

(g)      the supplementary documentation referred to in clause 5.6 provided by the Architect from time to time during the carrying out of the Works; and

(h)      all other documents that the Contractor is required to keep on Site in fulfilment of his statutory obligations.

Return of drawings

5.10    The Contractor shall return to the Architect all drawings, specifications, details, descriptive schedules and other similar documents provided under clause 5, if required by the Architect to do so, either upon the issue of the Final Certificate or the final conclusion of any proceedings to which the Contractor is a party, whichever is later and the Contractor may take copies for his own records.

# The request to return is seldom made, and the practical effect of this clause is doubtful in this electronic age. Signing of a confidentiality agreement may be a way to go. #

Submission of manuals and assignment of warranties

5.11    (1)      The Contractor shall submit to the Architect all the operation and maintenance manuals {prepared by or} received by the Contractor {within 60 days after the issue of the Substantial Completion Certificate for the Works or a Section as the case may be}.

# Some manuals may be prepared by the Contractor himself. #

# It is not uncommon that these manuals are only submitted after the Defects Liability Period. Therefore, a time frame for submission should be specified as a matter of good practice, though remedy for delay has not been mentioned. #

          (2)      The Contractor shall assign to the Employer (so far as he is lawfully able to do so) the benefits of all suppliers’ and sub-contractors’ warranties, guarantees or other ancillary agreements for materials, goods or work insofar as they are required by the Contract, Nominated Sub-Contracts or Nominated Supply Contracts, other than the direct warranties to the Employer required under the Nominated Sub-Contracts and Nominated Supply Contracts, within 60 days after the issue of the Substantial Completion Certificate for {the whole of} the Works{ or a Section as the case may be}.

# It would be usual that warranties and guarantees expressly required from suppliers and sub-contractors are to be given jointly and severally with the Contractor to the Employer, so there is no need for assignment in these cases. #

# Therefore, this sub-clause is likely to apply to other standard warranties and guarantees that come with a product sold to any customer. It should be better if all such suppliers’ and sub-contractors’ warranties, guarantees or other ancillary agreements address in the first instance to the Employer or the future owners as the beneficiary without the need for another process of assignment. #

# It may not be wise to wait everything until the Substantial Completion of the whole of the Works. #

          (3)      Where the Contractor assigns the benefit of a suppliers’ or sub-contractors’ warranty, guarantee or other ancillary agreement for materials, goods or work to the Employer, the Employer shall exhaust all remedies under the warranty, guarantee or ancillary agreement before enforcing the terms of the Contract against the Contractor in respect of any matter for which a cause of action exists against the sub-contractor or supplier under the warranty, guarantee or other ancillary agreement.

# Except for the cases of joint and several warranties and guarantees, this sub-clause would mean that the assignment should be deferred as late as possible to avoid direct dealing with the suppliers and sub-contractors. The proper intention should be to deal with the Contractor before the issue of the Defects Rectification Certificate, and to deal with suppliers and sub-contractors thereafter unless the Employer would want to let the subsequent owners (e.g. residential flat owners) to deal the suppliers and sub-contractors (e.g. air-conditioners, domestic appliances, etc.) after the handover of the sold properties. Yet, whether the Employer can really get off the hook in this example case is still doubtful. #

Submission of as-built drawings

5.12    (1)      The Contractor shall submit to the Architect 2 copies of a complete set of the as-built drawings that are required by the Contract, Nominated Sub-Contracts or Nominated Supply Contracts within 60 days of the issue of the Substantial Completion Certificate for {the whole of} the Works{ or a Section as the case may be}.

# As-built drawings would be required for the maintenance and operation of the Sections substantially completed earlier. #

          (2)      Where the drawings referred to under clauses 5.3, 5.4, 5.5 and 5.6 have been issued electronically, the Contractor shall, if so required by the Architect, provide the as built drawings electronically.

Limits to use of documents

5.13    (1)      The Contractor shall not use any of the documents referred to in clause 5 for any purpose other than the Works and any proceedings relating to the Contract.

(2)      Neither the Employer, the Architect nor the Quantity Surveyor shall divulge any of the rates or prices in the Contract Bills or use them except for the purposes of the Contract and any proceedings relating to the Contract.

# This is to protect the Contractor’s business secrets against his competitors. Any use of the rates and prices for analysis, estimating and pricing for other projects must have the names of this Contract and the Contractor removed beyond recognition. #

Issue of Architect’s certificates

5.14    {The Architect shall issue all certificates to the Employer and shall, at the same time, issue a copy of each certificate to the Contractor. Any certificate issued by the Architect under this Contract shall be either addressed to the Employer with a copy at the same time to the Contractor, or addressed to the Contractor with a copy at the same time to the Employer.}

# It is not understood why, contrary to the Old Forms, the certificates are to be issued to the Employer. Architects used to the Old Forms keep on issuing the certificates to the Contractor while using the New Forms. #

Copy of notice to be given to Employer

5.15    Whenever the Architect issues a notice to the Contractor by special delivery, he shall issue a copy of the notice to the Employer at the same time.

6  Statutory obligations

Statutory Requirements

6.1     The Contractor shall comply with and give the notices required by any Ordinance, regulation, rule, order or by-law applicable to the Works (‘the Statutory Requirements’) which are to be complied with by the Contractor.

# The phrase “which are to be complied with by the Contractor” is important. #

Compliance with the Statutory Requirements

6.2      (1)      The Contractor shall immediately notify the Architect if the Contractor finds that carrying out the Works in compliance with the Contract or with an Architect’s instruction requiring a Variation will infringe the Statutory Requirements.

# The word “if” is important. However, very often, the Specification or Preliminaries Bill may require the Contractor to do an active check. #

          (2)      If the Architect agrees with the Contractor, he shall issue an instruction to resolve the infringement as soon as practicable after receipt of the notice and the instruction shall, if appropriate, require a Variation.

# If the Architect does not consider that there is any infringement and instructs the Contractor to proceed without making changes, the Contractor proceeds accordingly, and this in fact results in an infringement, the Contractor may escape contractual liability towards the Employer. However, it should be cautioned that this would not relieve his statutory liability towards others. #

# The Old Forms require the Contractor to proceed in compliance with the Statutory Requirements if the Architect does not respond. The New Forms are silent in this respect. If the Architect does not respond, the Contractor should continue to seek clarification with proper declarations to protect his rights. #

Fees or charges

6.3     (1)      The Contractor shall pay all fees or charges legally demandable under the Statutory Requirements        .

# “legally demandable” should mean those legally demandable upon the Contractor. The Contractor should pay first before getting reimbursement under sub-clause (2). #

         (2)      The net amount of those fees or charges paid by the Contractor shall be added to the Contract Sum unless they:

# Only the net amount is reimbursed with no mark-up. #

(a)      are fees or charges that the Contractor is liable to pay under the Statutory Requirements{, and the liability was known prior to the date for submission of tenders and has not been increased irrespective of any changes to the Statutory Requirements after the date for submission of tenders};

# The phrase suggested to be deleted is a new introduction to the New Forms to reduce the Contractor’s risk. However, it would be difficult to draw a line between fees and charges payable purely by reason of him being a contractor and that payable by him as one of the general public (the latter kind to be allowed for as a general inflation). #

(b)      are priced, or are required to be allowed for, in the Contract Bills;

# It is usual for the Contract Bills or the Specification to contain provisions to require the Contractor to allow for all fees and charges except when they are provided for by a Provisional Sum. If the same provisions are retained when used in conjunction with the New Forms without change, this would mean paragraph (b) is invoked. Once paragraph (b) is invoked, no reimbursement will be given even though paragraph (a) may also be invoked, leaving paragraph (a) no protection to the Contractor. The suggested change to paragraph (a) above is to minimize the complication. #

(c)      are provided for by a Provisional Sum; or

# The Old Forms refer to “prime cost sum” which should be a sum reserved for Nominated Sub-Contractors or Suppliers. This role is not applicable to local authority or statutory undertaker. Therefore, provisional sums are usually provided instead of prime cost sums when using the Old Forms. The use of “provisional sum” in the New Forms reflects this practice. #

(d)      arise out of a default, delay or failure by the Contractor or a sub-contractor to comply with the Statutory Requirements or the Contract.

Statutory undertakers and utility companies

# “local authority and statutory undertakers” in the Old Forms has been replaced with “statutory undertakers and utility companies” in the New Forms. In the Old Forms, “statutory undertakers” is meant to be “utility companies”. Water and drainage connections are usually done by Government Departments, not utility companies. With the change of the phrase in the New Forms, whether “statutory undertakers” would be changed to mean Government Departments, not utility companies, is to be seen. Searching the Laws of Hong Kong on 1st September 2014 could not find the words “statutory undertaker”. UK Forms of Contract and legal textbooks treat “local authority” and “statutory undertakers” as two separate things. In spite of the possibility that “statutory undertakers and utility companies” does not cover Government Departments, this only applies to clause 6.4. Clauses 6.1 to 6.3 can still apply to Government Departments. #       

6.4      (1)      Statutory undertakers or utility companies carrying out work in pursuance of their statutory obligations and not having a contractual relationship with the Employer, the Contractor or any person for whom the Contractor is responsible shall be classified as statutory undertakers or utility companies and not Nominated Sub-Contractors or persons engaged by the Employer under clause 30 and the fees or charges for their work shall be regarded as fees and charges legally demandable under the Statutory Requirements and processed in accordance with clause 6.3.

# It has been decided in UK court cases that statutory undertakers or utility companies would not have a contractual relationship with persons commissioning them to carry out work in pursuance of their statutory obligations. Clause 6.3 is introduced in the New Forms to clarify that statutory role as distinct from the role of a sub-contractor engaged by the Contractor or a person engaged by the Employer. However, apart from their statutory roles, some utility companies are offering services beyond their statutory roles, e.g. providing utility mains to the site is a statutory role but extending from the mains to the individual flat units is a private commercial deal. Sub-clauses (3) and (4) are therefore introduced to deal with the latter situation. It should be admitted that sometimes it is difficult to distinguish whether a statutory undertaker or utility company is carrying out work pursuant to its statutory duty or contractual duty. #

          (2)      The Contractor shall allow those persons reasonable access to the Site, permit them to carry out their work and provide them with the facilities referred to in clause 31.

          (3)      Statutory undertakers or utility companies engaged under contracts with the Employer to carry out work directly connected with or ancillary to but not forming part of the Works shall be classified as Specialist Contractors as referred to in clause 30.1.

          (4)      Statutory undertakers or utility companies engaged under contracts with the Contractor or a Nominated Sub-Contractor to carry out work forming part of the Works shall be classified as sub-contractors or sub-sub-contractors as the case may be.

7  Setting out the Works

Setting out and levels

          (1)      The Architect shall provide the Contractor with accurately dimensioned setting out drawings containing the information and levels necessary for him to set out the Works.

# “at ground level” in the Old Forms has been removed, probably the Works can be in existing premises not requiring setting out at ground level. Neither the Old Forms nor the New Forms require the Employer to provide site boundary pegs but sometimes the Employer does so. #

          (2)      The Contractor shall be responsible for accurately setting out the Works and shall correct any error arising from inaccurate setting out at his own cost unless the Architect accepts the error without correction subject to a reasonable reduction in the Contract Sum having regard to the Employer’s loss of value of the Works and any expenses that he may incur arising from the inaccurate setting out.

# This sub-clause does not give any guidance as to how the loss of value should be determined. The principle of determining common law damages should be referred to. It is suggested that the most expensive cost would likely be the cost of rectifying the inaccurate setting out by persons other than the Contractor, and the Employer always has a duty to mitigate his loss, therefore, the loss of value of the Works should be no more than the cost of rectification by others. However, what if the inaccurate setting out is only discovered after the building is already certified completed, the floor area has been reduced by reason of the inaccurate setting out, and rectification is no longer practicable? Can the Employer seek damages due to loss of sales or rental values? What if the floor plan encroaches outside the site boundary resulting in additional land premium to be paid, can the Employer seek damages? There are always risks of facing such arguments. #

# Note that clause 8.3(c) uses the words “having regard to the reduction in the value of the materials, goods or work” which should have a more restricted meaning than “loss of value of the Works”. #

8  Materials, goods, workmanship and work

Types, standards and quality

8.1     (1)      The Contractor must provide all materials and goods of the types, standards and quality described in the Contract to the Architect’s satisfaction.

          (2)      Where the Contractor is responsible for the selection of the materials and goods in accordance with a performance specification or otherwise, the materials and goods must be fit for the purpose stated in the Contract.

# This means that “fit for the purpose” is applicable to all cases of selection by the Contractor. #

          (3)      If any of the specified materials or goods are not procurable, then the Contractor shall submit alternative proposals for materials or goods of similar type and standard and of comparable quality and price to the Architect for his approval; and

(a)      if the proposed alternative materials or goods are of similar type and standard and of comparable quality and price to those specified, and the Architect approves them, the substitution of the alternative materials or goods for those specified shall be made with no adjustment to the Contract Sum; or

(b)      if the proposed alternative materials or goods are not of similar type and standard or comparable quality or price to those specified, and the Architect approves them, he shall instruct a Variation to adjust the type, standard, quality or price.

# For the Old Forms, it has been suggested that if any specified material, goods or workmanship is not procurable, it should be re-specified by the Architect and this should be treated as a variation. It has also been argued that it is the Contractor’s risk and he should find alternatives without cost or time implications. Sub-clause (3) introduced in the New Forms clarifies the implications by putting this as the Contractor’s risk. The most likely result of paragraph (b) would be a reduction to the contract rate, though paragraph (b) can also mean an increase. The price range to be regarded as “comparable” would be a room for argument. To avoid argument, whether paragraph (a) or (b) should apply and the cost effect in case paragraph (b) applies should be properly documented in the Architect’s approval or instruction rather than leaving the matter to be resolved at the Final Account. #

          (4)      The Contractor shall provide the Architect, upon his request, with vouchers, test certificates or other evidence to satisfy the Architect that the materials and goods comply with the Contract.

          (5)      The Contractor’s workmanship must be of the standard and quality described in the Contract to the Architect’s satisfaction.

# Materials and goods rely on others to supply and manufacture. It should be reasonable to separate “workmanship” from “materials and goods” because it would be unreasonable for the Contractor after tendering to say that his workmen cannot do it. “Workmanship” should refer to the further work to the materials and goods, not workmanship in producing the materials and goods. #

          (6)      All work must be carried out in a proper and workmanlike manner in accordance with the Contract or, in the absence of any specific performance requirements, to the Architect’s satisfaction.

# Workmanship does not have the “fit for the purpose” requirement, but competent skill and care as required by clause 2.3 should still apply. #

Inspection and tests

8.2     (1)      The Contractor shall carry out or, if so required by the Contract, arrange for a third party to carry out, the tests specified in the Contract in compliance with the specified testing procedures. {Unless a different time period is specified in the Contract, the Contractor shall notify the Architect in writing before concealed work is covered up and give him at least two full days’ notice to inspect it.}

# A default notice period is preferred to avoid a sudden call for inspection of work to be concealed, which may take place outside normal working hours. #

          (2)      In addition to the tests specified in the Contract, the Architect may instruct the Contractor to open up for inspection any work covered up and to carry out, or arrange for a third party to carry out, tests of materials and goods (whether or not already incorporated in the Works) and work which has been carried out.

          (3)      The cost of the testing, the opening up for inspection and any consequential making good shall be added to the Contract Sum unless:

(a)      the inspection or test is provided for in the Contract  Bills;

(b)      the inspection or test shows that the materials, goods, workmanship or work are not in accordance with clause 8;

(c)      the inspection or test was considered necessary by the Architect because, as a result of the failure of a previous inspection or test, further investigation of similar materials, goods or work was required to establish to his satisfaction their compliance with clause 8; or

# This is an express right introduced in the New Forms. However, whether it would extend the scope from sampling check to 100% check of all other similar items would remain to be seen. #

(d)      the work was carried out without the inspection notice required by the Contract{ or was carried out in a recklessly non-conforming manner}.

# Work carried out in a recklessly non-conforming manner may still result in acceptable quality as revealed by subsequent testing, e.g. pouring of concrete under rain, but this is a gamble to be avoided. #

Materials, goods, workmanship or work not in accordance with Contract

8.3     The Architect may, if any materials, goods, workmanship or work are not in accordance with the Contract, instruct:

# The Old Forms only empower the Architect to require the removal from the site of non-conforming items, the natural consequence would be similar to paragraph (a) or (b) in the New Forms. Paragraphs (c) and (d) in the New Forms expand the options and authority. #

(a)      the removal from the Site and the replacement of materials and goods that are not in accordance with clause 8;

# This refers to materials and goods. #

(b)      the repair or demolition, removal and reconstruction of work which, in respect of materials, goods or workmanship, is not in accordance with clause 8;

# This refers to work. #

(c)      the acceptance, without replacement or reconstruction, of some or all of the materials, goods or work that are not in accordance with clause 8, subject to a reasonable reduction in the Contract Sum having regard to the reduction in the value of the materials, goods or work; and

# The value would bear some relationship with the contract value or Variation value not done and with the costs of replacement or reconstruction saved. #

(d)      a Variation for alternative remedial work to some or all of the materials, goods or work as is reasonably necessary in consequence of them not being in accordance with clause 8, with no extension of time or addition to the Contract Sum.

# The actual situation may make it impracticable to replace or reconstruct according to the original design, and it may be better to change the design. The Contractor would obviously object if the alternative design is much more expensive. The Employer would obviously expect some reduction to the Contract Sum if the alternative design is cheaper. #

# The Architect would not have a free choice between paragraph (a) or (b), (c) and (d). He is obliged to act reasonably and to mitigate the costs. Therefore, the final choice would probably be the result of discussions with the Contractor. #

Rectifying defects

8.4     The Architect may instruct the Contractor to rectify defects which appear before the commencement of the Defects Liability Period.

# Legal textbooks say that contractors have an implied obligation to deliver the works free of defects upon completion. Therefore, this clause appears to be stating the obvious. In practice, minor defects are often tolerated when certifying Substantial Completion. This clause gives the Architect an express power to instruct, but it could also be read to imply that the Architect may tolerate defects appearing before Substantial Completion to be rectified after Substantial Completion. #

Dismissal from the Works

8.5     The Architect may instruct the Contractor to dismiss any individual from the Works for incompetence, misconduct or other similar reasons.

9  Intellectual property rights 

{Intellectual property in design of the Works

9.1     The Contractor shall pay the cost of any royalty, license fee or other sum legally demandable for the use of intellectual property in connection with the design of the permanent Works other than works under a Nominated Sub-Contract or materials and goods supplied under a Nominated Supply Contract, and the cost shall be added to the Contract Sum.}

# The arrangement is that the Contractor should pay first and get reimbursed later. The design of the permanent Works should by default be provided by the Architect free of royalty, license fee or other similar sum. It would be strange to ask the Contractor to pay the Architect first and get reimbursed from the Employer. #

# Nominated Sub-Contract Works and Supply Contract Goods are to be dealt with separately. #

# This clause is suggested to be deleted and re-written at clause 9.3. #

{Intellectual property in materials and goods

9.2      The Contractor shall pay the cost of any royalty, license fee or other sum legally demandable for the use of intellectual property in connection with the incorporation of materials and goods into the permanent Works other than materials and goods supplied under a Nominated Sub-Contract or a Nominated Supply Contract. The cost shall be added to the Contract Sum unless the Contractor was responsible for the selection of the materials and goods in accordance with a performance specification or otherwise in which case the case shall be deemed to be included in the Contract Sum.}

# The arrangement is also that the Contractor should pay first and get reimbursed later. Cost reimbursement does not apply to materials selected by the Contractor. “Selection in accordance with a performance specification or otherwise” would mean any selection. Supply according to a specified brand and model should not mean selection by the Contractor. Supply of a model within a specified brand may mean selection by the Contractor. How about supply of a specific type and kind of materials? It may be difficult to draw a line between selection by the Contractor and selection by the Architect. This difficulty may lead to contractual argument. #

# Nominated Sub-Contract Works and Supply Contract Goods are to be dealt with separately. #

# This clause is suggested to be deleted and re-written at clause 9.3. #

Intellectual property{ in plant and equipment}

9.3     (1)      {The Contractor shall pay the cost The payment} of all royalties, license fees or other sums legally demandable for the use of intellectual property in respect of {the design or design development for which the Contractor is responsible, materials, goods,} plant, equipment, machinery, methods or anything whatsoever used in carrying out the Works {(other than works under a Nominated Sub-Contract or materials and goods supplied under a Nominated Supply Contract). The cost} shall be deemed to be included in the Contract Sum{, subject only to clause 9.4. The Contractor shall require the Nominated Sub-Contractors and Nominated Suppliers to comply with their corresponding obligations under the Nominated Sub-Contracts or Nominated Supply Contracts}.

# This refers to construction plant and equipment provided by the Contractor at his own choice. Therefore, the royalties, license fees or other similar sums shall be deemed to be included in the Contract Sum. #

# In view of the problematic clauses 9.1 and 9.2, the amended clause 9.3 deems that the Contract Sum includes all royalties, license fees or other similar sums except for those related to the design for which the Contractor is not responsible, Nominated Sub-Contract Works and Supply Contract Goods, and Variations. This keeps the principle used in the Old Forms. It does not appear to increase the risks of the Contractor since the Contractor has the opportunity to allow for the costs in the Contract Sum, but the trouble of interpretation would be reduced. #

# Since the Contractor is liable for any infringement by his sub-contractor or supplier under sub-clause (2), but the amended sub-clause (1) excludes Nominated Sub-Contractors and Suppliers in the early part, the additional sentence at the end of sub-clause (1) is to impose some responsibility on the Contractor to re-establish the chain of responsibility and liability. #

          (2)      The Contractor shall indemnify the Employer from and against all claims, proceedings, damages, costs and expense arising from the Contractor or any sub-contractor or supplier infringing or being held to have infringed any of the intellectual property rights referred to in clause 9.3(1).

Payment of royalties included in Valuation

9.4     If the Contractor uses any intellectual property in compliance with an Architect's instruction requiring a Variation, any royalty, license fee or other sum legally chargeable which the Contractor pays in connection with that instruction shall be included in the Valuation of the Variation.

# When contract rates are used for the Valuation, since the contract rates should be deemed to be inclusive of the cost of royalties, license fees or other similar sums, extra payment for royalties and the like would need to be justified, e.g. disproportional changes between royalties and basic cost of the work. #

10  Contractor's site management team

# This change from a simple “Foreman-in-charge” in the Old Forms reflects the sophistication of modern day contracts. #

Contractor’s site management team

10.1   (1)      The Contractor shall maintain the site management and supervisory team (referred to in clause 10 as ‘the team’) listed in clause 3.1(1)(c) on the Site for as long as is necessary for the satisfactory fulfilment of his obligations under the Contract.

         (2)      The team shall be of sufficient strength with personnel of appropriate qualifications, seniority and experience, having regard to the size, complexity and nature of the Works, to properly organise, manage, plan, supervise and co-ordinate the carrying out of the Works.

Construction manager

10.2   (1)      The team shall be headed by an experienced and competent construction manager approved by the Architect.

# The title and position of “construction manager” is now formalized. “site agent” is used traditionally. There is no longer requirement for English-speaking as in the Old Forms. The words “constantly on the site” in the Old Forms have also been removed. #

         (2)      An instruction issued by the Architect to the construction manager shall be deemed to have been issued to the Contractor.

         (3)      The Architect may instruct the Contractor to replace the construction manager or a member of the team for incompetence or misconduct.

         (4)      The Contractor shall not remove or replace the construction manager or any member of the team unless requested by or agreed to by the Architect.

11  Access for the Architect to the Works

Contractor to give access

          The Contractor shall give the Architect and any person authorised by the Architect access, at all reasonable times, to the Works or any place where materials or goods are being manufactured or stored, work is being prepared or design is being carried out, and shall ensure that all his sub-contractors and suppliers do the same.

# Access to the Works should cover access to anywhere within the Site. The “place” should be intended to mean places outside the Site, and can include design offices to reflect modern day possibility. #

12  Architect's representative

Architect’s representative

12.1    The Architect and/or the Employer may appoint an architect, engineer, clerk of works or other person as the Architect’s representative to be resident on the Site and acting under the direction of the Architect.

# The Old Forms distinguish between Clerk of Works and Architect’s representative, although in practice a Clerk of Works can also be engaged by the Architect. The New Forms put them all under the term of “Architect’s representative”. #

          The Architect’s representatives’ duties shall be to:

(a)      watch and inspect the Works;

(b)      inspect and test materials and goods;

(c)      check that the types, standards and quality of the materials and goods, the standard and quality of the Contractor’s workmanship and the quality of his work are in accordance with the requirements of the Contract,

# There is no obvious reason why “standards” and “standard” are used at the same time. #

(d)      check, amend as necessary, and where appropriate sign the records submitted to him by the Contractor for approval; and

# Some Architect’s representatives are reluctant to sign Contractor’s records. Signing is important. #

(e)      carry out the duties and exercise the powers delegated to him by the Architect under clause 12.2,

          and the Contractor shall give the Architect’s representative every reasonable facility for the performance of these duties.

# Under the Old Forms, the Clerk of Works or the Architect’s representative shall act solely as inspector without the authority to give directions unless confirmed by an Architect’s instruction. The New Forms expand the power of the Architect’s representative. With proper delegation of authority under clauses 12.2 and 12.3, that power can include issue of instructions. #

Delegation of duties and powers

12.2    (1)      The Architect may, from time to time, delegate any of his duties and powers under the Contract to the Architect's representative as defined under clause 12.1.

          (2)      The delegation shall be in writing and shall be copied to the Contractor. It shall specify the duties and powers that are delegated and remain in force until changed or terminated in writing by the Architect.

Instruction to bind parties

12.3    (1)      The Architect’s representative shall issue all instructions in writing and an instruction from the Architect’s representative shall bind the parties if:

(a)      the Architect has the power to give it; and

(b)      it is within the terms of the delegation.

          (2)      The Contractor may, within 7 days of receiving an instruction from the Architect's representative, submit an objection to the Architect who shall confirm, reverse or vary that instruction within a further 7 days, failing which the instruction shall have no effect.

13  Variations, Provisional Quantities, Provisional Items and Provisional Sums

Architect’s authority to issue instructions requiring a Variation       

13.1    (1)      The Architect may issue an instruction requiring a Variation provided that:

(a)      the Contractor has the right of reasonable objection to a Variation which imposes or changes an obligation or restriction on the Contractor regarding access to the Site, use of any part of the Site or limitation of working space or working hours and the Architect shall, upon receipt of the Contractor’s objection, either confirm or withdraw the instruction, and if the instruction is confirmed, the Contractor may refer the matter to arbitration under clause 41;

# The New Forms expand the scope of Variation in clause 1.6 to include a change to the manners of carrying out the Works. Such manners have traditionally been regarded as entirely at the Contractor’s discretion. This paragraph (a) retains the Contractor’s right to reasonable objection to any instructed change to the manners. The types of manners reserved are the same as those in clause 1.6 with the omission of “the sequence of carrying out or completing work” probably unintentionally. #

(b)      the Contractor’s written consent is given to an instruction either nominating a sub-contractor to carry out work included in the Contract 【Bills】 which is to be carried out by the Contractor or omitting work in order for it to be carried out by others; and

(c)      the instruction or accumulation of instructions shall not fundamentally change the scope or nature of the Works.

          (2)      The instruction requiring a Variation shall describe the change required to the design, quality or quantity of the Works or the imposition of or change to any obligation or restriction on the Contractor and where appropriate the Architect shall issue revised drawings and/or schedules.

          (3)      The Contractor has no right to carry out work involving a Variation without a written instruction from the Architect or confirmation of an oral instruction from the Contractor except in the event of an emergency as provided for in Clause 4.4.

# An instruction may or may not result in a Variation. A Variation must have an authorising Architect’s instruction. A good practice would be to issue a confirmatory Architect’s instruction to confirm a confirmation of oral instruction from the Contractor. Clause 4.4 requires a confirmatory Architect’s instruction for emergency work. #

Instructions for Provisional Quantities, Provisional Items and Provisional Sums

13.2    The Architect shall issue an instruction for:

(a)      the carrying out of work or the provision of goods covered by Provisional Quantities or Provisional Items in the Contract 【Bills】, Nominated Sub-Contracts or Nominated Supply Contracts; and

# This may mean a specific instruction for an item or a group of Provisional Quantities or Provisional Items. However, very often, a set of revised drawings issued after the award of the Contract under an Architect’s instruction may cover whatever changes made as well as confirmed details for related Provisional Quantities or Provisional Items, and the Architect may not be detailed enough to state that the Provisional Quantities or Provisional Items are to be carried out as shown on the revised drawings. If the intention of the instruction is clear enough to have all work shown on the revised drawings to be carried out, then there is no reason why the instruction cannot be regarded as the authorising instruction for the Provisional Quantities or Provisional Items. #

(b)      the expenditure of Provisional Sums included in the Contract 【Bills】, Nominated Sub-Contracts or Nominated Supply Contracts.

# Similar to the comments against paragraph (a), an instruction may not be very specific that it is authorising the expenditure of Provisional Sums. A reasonable interpretation of the intention of the instruction should be exercised. #

Valuation of Contractor’s work

13.3    The Quantity Surveyor shall measure and value work carried out by the Contractor in response to an Architect’s instruction under:

(a)      clause 13.1 requiring a Variation;

(b)      clause 13.2(a) for the remeasurement of Provisional Quantities and Provisional Items; and

(c)      clause 13.2(b) to expend a Provisional Sum,

and the Valuation shall be made in accordance with the rules set out in clause 13.4.

# The valuation rules under the Old Forms only cover variations and work covered by provisional sums. The New Forms expand the scope to cover Provisional Quantities and Provisional Items. #

Valuation rules

13.4   (1)      Where the Valuation relates to the carrying out of:

(a)      additional or substituted work which can be properly valued by measurement;

# Work which cannot be properly valued by measurement is to be valued according to paragraph (a). #

(b)      work which is the subject of Provisional Quantities or Provisional Items; or

(c)      work involved in the expenditure of Provisional Sums,

the work shall be measured and shall be valued in accordance with the following rules:

# Rules (i) to (iii) are not at a level under paragraph (c) but are applicable to paragraphs (a) to (c). Following the style of numbering elsewhere, they should be numbered as (d) to (f). #

(i)      where the work is the same as or similar in character to and is carried out under the same or similar conditions to work priced in the 【Contract Bills,】Schedule of Quantities and Rates, and the Variation does not substantially change the quantity of that work, the rates in the 【Contract Bills】Schedule of Quantities and Rates for that work shall determine the Valuation;

# In short, contract rates for work of similar character executed under similar conditions, if no substantial change in quantity. The former part is similar to the Old Forms, the latter part a new addition to the New Forms. #

(ii)      where the work is the same as or similar in character to work priced in the 【Contract Bills】『Schedule of Quantities and Rates but is not carried out under the same or similar conditions, or the Variation substantially changes the quantity of that work, the rates in the 【Contract Bills】『Schedule of Quantities and Rates』 for that work shall determine the Valuation but with a fair adjustment for the difference in conditions or quantity;

# In short, pro-rata rates for work of similar character but not under similar conditions, or if quantity substantially changed. The former part is different from the Old Forms which say “work not of a similar character or executed under similar conditions”. Work not of a similar character is to be valued according to rule (iii) below. #

# This clarifies that pro-rata rates should be based on contract rates with a fair adjustment for the difference in conditions or quantity. Re-rating of the labour and plant is not intended for. #

(iii)      where the work is not the same as or similar in character to any work priced in the 【Contract Bills】『Schedule of Quantities and Rates』, the work shall be valued at fair rates; and

# In short, fair rates for work not of a similar character. A change to a different type of tiles requiring the same method of laying would appear to fall within rule (iii) not (ii). The Old Forms permit the use of pro-rata rates in this case. On the other hand, the Old Forms permit fair rates if pro-rata rates are not reasonable, this is more flexible. The wording of Clause 11(4)(b) of the Old Forms appear to be better. #

(iv)      the word ‘conditions’ in clause 13.4(1) shall mean physical conditions and not financial conditions.

# “financial conditions” is probably intended to exclude re-rating due to under-pricing or exclude the general effects of general inflation or fluctuations in exchange rates, but this may have side-effects not favourable to the Contractor if this is interpreted literally. If by reason of a change in the physical conditions, the economy of scale (share of fixed costs) is changed, then this should be admitted. If the time of carrying out a Variation is very different from the original time the contract work is carried out, the extra effect of inflation over the general effect should be admitted. This should also apply if the exchange rates are very bad when the Variation is carried out. Therefore, a reasonable interpretation of “financial conditions” should be “financial conditions which are not the consequence of the changes in physical conditions”. #

          (2)      Where the Valuation relates to work which cannot be properly measured and valued under clause 13.4(1) the work may, with the prior consent of the Architect, be carried out as daywork and provided that the Contractor:

(a)      gives at least 7 days’ notice to the Architect before carrying out the work, or where the work is required urgently, as much prior notice as practicable; and

(b)      submits vouchers specifying the time spent daily carrying out the work, the workmen’s names, the materials and goods and the plant and equipment employed to the Architect for verification within 14 days of the work being carried out, the work shall be valued at prime cost comprising labour, materials, goods, plant and equipment plus overheads and profit; and:

# 14 days of the work instead of within the next week of the work in the Old Forms. #

# The phrase “valued at prime cost comprising labour, materials, goods, plant and equipment plus overheads and profit; and”, though spelling out the underlying principle, can in fact be deleted without affecting the meaning. Keeping it here may contradict paragraph (c) if the contract daywork rates are under-priced or over-priced significantly. #

(c)      priced at the daywork rates in the Contract 【Bills】; or

(d)      where there are no daywork rates in the Contract 【Bills】, priced at:

(i)      the labour rates contained in the record of Average Daily Wages of Workers Engaged in {Government Building and Public Sector} Construction Projects published by the Census and Statistics Department of the Government of the Hong Kong Special Administrative Region current at the date when the work is carried out;

(ii)      the net cost of materials and goods plus the cost of packing, carriage and delivery;

(iii)      the cost of hiring plant and equipment specifically provided for the work together with the cost of transportation, fuel, maintenance and insurance; and

# If the plant and equipment are self-owned, the cost of owning and maintaining should be converted to running cost as if hiring. #

(iv)      the percentages for overheads and profit on the prime cost of the labour, materials, goods, plant and equipment that are {included stated} in the Contract 【Bills】or, where no such percentages are {included stated} in the Contract 【Bills】, at 15 percent.

# Since all the contract rates are supposed to include some overheads and profit, it would be difficult to argue that there are no such percentages for overheads and profit in the Contract (or Contract Bills). ”included” in the Contract should mean “stated”. #

          (3)      Where the Valuation relates to the omission of work included in the 【Contract Bills】『Schedule of Quantities and Rates』:

(a)      the rates for the work in the 【Contract Bills】『Schedule of Quantities and Rates』 shall determine the Valuation of the work omitted; and

(b)      if in the Quantity Surveyor’s opinion the Contractor has reasonably incurred expense which has become wholly or partly unnecessary as a result of the omission of the work, a fair adjustment shall be made to the Valuation in respect of that expense.

# Essentially, this refers to a case where the economy of scale (share of fixed costs) is changed. #

          (4)      Where the Valuation does not relate to additional or substituted work or the omission of work but relates only to other matters not involving measured work such as the imposition of or change to an obligation or restriction and the rules in clauses 13.4(1), 13.4(2) or 13.4(3) cannot reasonably be applied, a fair valuation shall be made.

          (5)      An appropriate allowance shall be made in a Valuation under clause 13.4 for any percentage {or lump sum} adjustment made to the 【Contract Bills】『Schedule of Quantities and Rates』.

# Lump sum adjustments in the Contract Bills or Schedule of Quantities and Rates are supposed to be lump sums not affected by adjustments to the Contract Sum. There is no reason why such lump sum adjustments should be correspondingly adjusted in line with the Variations. #

          (6)      If compliance with a Variation instructed under clause 13.1 or a deemed Variation under clause 14.3 substantially changes the conditions under which other work is carried out, and results in the rates in the 【Contract Bills】『Schedule of Quantities and Rates』 for this work becoming unreasonable or inapplicable, then new rates shall be determined based upon the rates in the 【Contract Bills】『Schedule of Quantities and Rates』 adjusted by a fair allowance for the difference in the conditions.

# This offers another chance to adjust the contract rates further to the right under clauses 13.4(1)(ii) and 13.4(3)(b) to adjust when a Variation increases or decreases the quantity of work substantially. #

          (7)      In addition to the Valuation by daywork under clause 13.4(2) of work which cannot be properly measured and valued under clause 13.4(1), the Architect may instruct the Contractor, with the Contractor’s agreement, to carry out any other work, including work which can be properly measured and valued under clause 13.4(1), to be valued on a daywork basis in accordance with clause 13.4(2).

# Daywork valuation can also be adopted in any case if mutually agreed, even when the work can be properly measured and valued. #

          (8)      If the Architect instructs a Variation for additional work after Substantial Completion, clause 13.4(1) shall not apply and a fair valuation shall be made.

# It is now a clear message of fair rates for Variations carried out after Substantial Completion. #

          (9)      No allowance is to be made under clause 13.4 for direct loss and/or expense due to delay to the progress of the Works, disruption, or any other cause for which the Contractor can be reimbursed by payment under any other provision of the Conditions.

# Under the Old Forms, if the basic valuation of variations and work covered by provisional sums cannot adequately cover the Contractor’s loss and expense, he may rely on Clause 11(6) to claim for compensation for the direct loss and/or expense of whatsoever nature. If the relevant instruction is late, he may also reply on Clause 24(1)(a) to claim for compensation of direct loss and/or expense due to disturbance of regular progress. A request under Clause 11(6) appears to be not so serious nor drawing much attention as a claim under Clause 24(1)(a). QSs and contractors tend to handle the full effect of variations and work covered by provisional sums under Clause 11 rather than under Clause 24.  #

# The New Forms now entitle the Contractor to be compensated under clause 27(2)(c) for the direct loss and/or expense due to delay and disruption. This sub-clause (9) appears to require all delay and disruption effects of variations and work covered by all kinds of provisional items to be dealt with under clause 27(2)(c). #

# The use of the words “can be reimbursed” is problematic in the sense that if the Contractor cannot actually get reimbursed under, say, clause 27(2)(c), can he come back to clause 13.4 to get reimbursed? Why can’t the sub-clause simply say that the delay and disruption effects must be dealt with under clause 27(2)(c)? #

# Note also the words “due to delay. ., disruption or any other cause” in this sub-clause. Clause 27(2(c) can only deal with delay and disruption but not any other cause. Why insert the words “any other cause”? Why can’t clause 13.4 be allowed to deal with the full effects of variations and work covered by any kind of provisional items? Sub-clause (6) appears to offer such opportunity if not restricted by sub-clause (9). #

Adjustment of Contract Sum

13.5     Effect shall be given to a Valuation under clause 13.3 by adjustment of the Contract Sum.

# Effect shall also be given in Interim Certificates but this is stated in clause 32.2(3)(a). #

Contractor’s right to be present during measurement on Site

13.6    Where it is necessary to measure work on the Site for a Valuation, the Quantity Surveyor shall give the Contractor an opportunity to be present and to take his own measurements.

Variation necessitated by fault of Contractor

13.7    If and to the extent that an instruction requiring a Variation arose as a result of a breach of contract or other default by the Contractor or any person for whom the Contractor is responsible, the Quantity Surveyor shall take the effect of the breach or default into account in the Valuation of the Variation.

Valuation of Nominated Sub-Contractor’s work or Nominated Supplier’s materials and goods

13.8    The Valuation of work carried out by a Nominated Sub-Contractor or materials and goods supplied by a Nominated Supplier in response to an Architect’s instruction:

(a)      for a variation to the sub-contract works or to the materials and goods to be supplied under a supply contract;

(b)      under clause 13.2(a) for the remeasurement of Provisional Quantities and Provisional Items in any bills of quantities included in the sub-contract or supply contract; and

(c)      under clause 13.2(b) to expend Provisional Sums included in the sub-contract or supply contract;

shall be made in accordance with the Nominated Sub-Contract or Nominated Supply Contract.

# Perhaps, a shorter clause may be “The Valuation of work carried out by a Nominated Sub-Contractor or materials and goods supplied by a Nominated Supplier shall be made in accordance with the Nominated Sub-Contract or Nominated Supply Contract.” #

{Contractor’s estimate before formal instruction

13.9    Before issuing an instruction pursuant to clause 13.1 or 13.2, the Architect may request the Contractor to submit a detailed estimate of the cost and time effects of the proposed instruction and the Contractor shall comply with the request. The subsequent issue of the instruction by the Architect shall not be construed as acceptance of the estimate unless specifically so stated in the instruction. The acceptance of such estimate shall not be a prerequisite to the execution of the instruction by the Contractor.}

# Added to avoid a Contractor’s argument that an instruction to proceed after a quotation has been submitted is deemed to be an acceptance of the quotation. #

{Contractor’s proposal

13.10  Any proposal made by the Contractor and approved by the Architect shall be deemed to have no cost or time effect on the Contract unless the Contractor expressly states that there should be cost or time effect when submitting the proposal and the Architect confirms in writing to treat this proposal as a Variation when accepting the proposal.}

# Added to avoid the ambiguity created by a silence over whether a Contractor’s proposal should or should not have cost and time effect. #

『14  [Not used]』

# The corresponding clause for the Without Quantities Form is clause 1.7 “Tenders based on Schedule of Quantities and Rates” of that Form. As commented there, that clause should have been inserted here. #

【14  Contract Bills】

Quality and quantity of work included in Contract Sum

14.1    The quality and quantity of the work included in the Contract Sum stated in Article 2 shall be deemed to be that which is set out in the Contract Bills which shall be read in conjunction with the Specification {and the Contract Drawings} to amplify and supplement the descriptions in the Contract Bills.】

# The Old Form (with Qty) refers to “the Contract Bills” only, though Special Conditions of Contract are usually used to include the Specification and the Contract Drawings” #

# There is no reason why “the Contract Drawings” should not be included when BQ descriptions are to be read in conjunction with the Tender Drawings during tendering. #

# Note the expression “amplify and supplement” should mean adding some more information rather than changing the basic thing as described by the BQ.”

Standard Method of Measurement of Building Works

14.2    (1)      The Contract Bills, except where expressly stated to the contrary in those bills, have been prepared in accordance with the procedures set out in the Hong Kong Standard Method of Measurement of Building Works {- Fourth Edition, 2005 published by the Hong Kong Institute of Surveyors current at the time the Tender Documents were issued}.

# Better make it more specific as to which SMM to be used.”

          (2)      A departure from the Standard Method of Measurement of Building Works in measuring any work shall be specifically stated in the ‘preliminaries’ or ‘preambles’ sections of the Contract Bills {or in the description of the applicable items in the Contract Bills} and the same method as used to measure that work shall be used for the measurement of any similar work that may be required to be measured and valued under clause 13.】

# Departure expressly stated in or obvious from the BQ descriptions should also be permitted.”

# The Old Form (with Qty) says, “but save as aforesaid nothing contained in the Contract Bills shall override, modify, or affect in any way whatsoever the application or interpretation of that which is contained in these Conditions.” There was a court case deciding that amendments of the Conditions as stated in the Preliminaries Bill were not valid since the BQ could not override, modify or affect the Conditions. To play safe, Special Conditions should be used to modify. On the other hand, the Old Form does not envisage Special Conditions. Such expression has been removed from the New Form. Clause 5 “Documents forming the Contract and other documents” gives a better treatment. #

Errors in Contract Bills

14.3    (1)      An error in description or in quantity {in} or the omission of an item from the Contract Bills shall not vitiate the Contract nor release the Contractor from any of his obligations or liabilities.

# “quantity in” was used in the Old Form (with Qty). #

# “vitiate” means destroy or damage. #

          (2)      The error in quantity or omission referred to in clause 14.3(1) shall be corrected and shall, for the sole purpose of adjusting the Contract Sum, be deemed to be a Variation required by the Architect and valued in accordance with the Valuation rules under clause 13.4.

          (3)      An error in description of an item shall be corrected, and if in the Quantity Surveyor‘s opinion the rate for that item in the Contract Bills is no longer fair by reason of that correction, he shall fix a new rate that is fair to both parties.】

{ Lump sum prices based on Contract Drawings and Specification only

# “This clause is required when work such as M&E works are included for tendering without BQ. # 

14.4    (1)      Where a lump sum price for an item or section of work included in the Contract Bills was priced based on the Contract Drawings and the Specification only without further detailed bills of quantities provided to the Contractor  or was priced based on bills of quantities which quantities were agreed not to form part of the Contract, the quality and quantity of the work included in the lump sum price shall be deemed to be that which is shown on the Contract Drawings or described in the Specification. The order of precedence of the documents shall be subject to the same rules as stated in clause 5.1.  Any error in the Contract Drawings and/or the Specification shall be subject to the same rules as stated in clause 14.3 with the words “the Contract Bills” substituted by “the Contract Drawings and/or the Specification”.

          (2)      Where a schedule of quantities and rates showing the build-up of a lump sum price has been submitted by the Contractor and accepted by the Architect, the rates in the schedule shall be used in the valuation of Variations to the work covered by the lump sum price. The quantities in the schedule shall not form part of the Contract.}

15  Contract Sum

Adjustment of Contract Sum

          (1)      The Contract Sum stated in Article 2 shall only be adjusted in accordance with the Contract and as soon as the amount of the adjustment is calculated in whole or in part, the amount so calculated shall be taken into account in the next Interim Certificate following the calculation.

# “shall only be adjusted” is similar in meaning to “shall not be adjusted or altered whatsoever otherwise than” in the Old Forms. It reinforces the basic meaning of lump sum contracts. #

# It is an important clarification that the amount so calculated shall be taken into account in interim payments. Payment for legitimate Variations or claims cannot be denied. #

          (2)       【Subject to clause 14.3】the parties are deemed to have accepted any error whether of arithmetic or not in the calculation of the Contract Sum stated in Article 2.

# This basically refers to the Contractor’s errors in the arithmetic or rate build-up. #

16  Materials and goods on or off-site

Property in materials and goods

# Learn the expressions: “property in”, “title to”, “right to” something. They are different from “property of” somebody. #

          (1)      Materials and goods delivered to or adjacent to the Site or stored off-site shall become the property of the Employer once their value has been included in an Interim Certificate and paid for by the Employer.

# Learn also the phrasal verb: “paid for”. #

# Property right will transfer only after payment. #

          (2)      Materials and goods delivered to or adjacent to the Site shall not be removed without the consent of the Architect. If they have become the property of the Employer, the Contractor shall remain responsible for loss or damage to them except to the extent that the loss or damage is due to an act or neglect of the Employer or any person for whom the Employer is responsible.

# In the Old Forms, the exception refers to clause 20[B] which deals with risks in respect of existing structures. The New Forms appear to extend the exception but this should be regarded as an implied exception in any case. #

          (3)      The Contractor shall indemnify the Employer against loss or damage to materials and goods stored off-site that have become the property of the Employer, shall be responsible for the cost of their storage, handling and insurance and shall not remove them from where they are being stored except for use upon the Works.

17  Substantial Completion and defects liability

Substantial Completion Certificate for the Works

# The term “practical completion” in the Old Forms has been changed to “substantial completion”. They can be regarded as the same thing unless otherwise defined. In the Old Forms, there is no definition for “practical completion”. In the New Forms, “substantially completed” has been defined in Clause 1 as “the state of completion where the Works or a Section may not be absolutely completed or entirely free from defects but have reached the stage where they can be taken over and used by the Employer for their intended purpose and where the unfinished items of work and the remaining defects then patent are only of a minor nature and extent and their completion or rectification will not unreasonably interfere with or interrupt the taking over of the Works or Section. #

17.1    The Architect shall issue the Substantial Completion Certificate for the Works when he is satisfied that the Works have been substantially completed and have passed the inspections and tests that are required by the Contract to be carried out and completed before Substantial Completion and all unfinished items of work shall be completed as soon as practicable after the issue of the Substantial Completion Certificate, or as instructed by the Architect, and in any case before the expiry of the Defects Liability Period. 『The Architect shall also issue a list of all the uncompleted items of work together with the Substantial Completion Certificate.』

# Apart from “substantially completed”, passing the required inspections and tests is also required. #

# The Without Qty version added the last sentence. This appears to be a good practice but not absolutely necessary. The term “uncompleted items” has been inconsistently used with “unfinished items”.

# The Old Forms do not expressly permit unfinished items of work when certifying practical completion. #

# Some Architects issue a Practical / Substantial Completion Certificate stating that this is subject to the conditions that the listed unfinished work will be completed within certain times. This will pose uncertainty as to whether the Certificate would become void if the unfinished work is not completed within the specified time. The present clause should be adequate. #

Separate Defects Liability Period for each Section and Relevant Part

# Clause 17.1 deals with the Works as a whole. Clause 17.2 deals with cases when there is sectional completion or partial possession. #

17.2    (1)      If sectional completion of the Works is provided for in the Contract or the Employer takes possession of a Relevant Part, each Section or Relevant Part shall have its own separate Defects Liability Period.

          (2)      The Architect shall issue a Substantial Completion Certificate upon Substantial Completion of each Section or Relevant Part except for the last one. Upon Substantial Completion of the last Section or Relevant Part, the Architect shall issue the Substantial Completion Certificate for the Works and Substantial Completion of the whole of the Works shall be deemed to have taken place on the date stated in that certificate.

# The last Certificate should refer to the Works as a whole, not the last Section or Relevant Part. This is playing safe, though it may be simpler if it is so stated that if the Certificate for last Section or Relevant Part is issued, the Works as a whole will be deemed substantially completed. #

          (3)      The requirements for the issue of a Substantial Completion Certificate under clause 17.2(2) shall be the same as those under clause 17.1.

Rectifying defects

17.3    (1)      The Contractor shall rectify all defects, shrinkages or other faults which are identified during the Defects Liability Period of the Works, a Section or a Relevant Part stated in the Appendix, and are caused either by materials, goods or workmanship which are not in accordance with the Contract, {or} by natural causes or as a result of a Specified Peril occurring during the construction period prior to Substantial Completion.

# “or” added to avoid the possibility to include “natural causes” after Substantial Completion. #

          (2)      The Architect shall list the defects to be rectified in schedules of defects which he shall issue to the Contractor as Architect’s instructions from time to time during the Defects Liability Period. The final schedule of defects shall be issued not later than 14 days after the expiry of the Defects Liability Period.

          (3)      The Contractor shall rectify the defects specified in the schedules of defects to the Architect’s satisfaction within a reasonable time after receipt of those schedules.

          (4)      If the Contractor does not comply with the Architect’s instruction to rectify the defects listed in a schedule of defects within a reasonable time, the provisions of clauses 4.3(3) and 4.3(4) shall apply.

# That is, the Employer may engage other persons to rectify at the expense of the Contractor, and the Contractor shall provide reasonable access and permission. #

          (5)      The Architect may instruct the Contractor not to rectify some or all of the defects specified in the schedules of defects, in which case a reasonable reduction to the Contract Sum shall be made for the defects not rectified.

# This is a new option introduced into the New Forms, otherwise the Architect would not have the authority to do so. This would be useful when rectification may cause greater disturbance. Practically, this would require mutual agreement. The Employer would probably like to consider the loss of value of the Works and the future repair and maintenance expenses, while the Contractor would probably take the likely cost of defects rectification as the maximum. #

Defects Rectification Certificate for the Works

17.4    The Architect shall issue the Defects Rectification Certificate for the Works when:

(a)      the Defects Liability Period for the Works has expired;

(b)      the Contractor has satisfactorily completed all the uncompleted items of work on the list issued with the Substantial Completion Certificate, and

(c)      all defects required to be rectified under clause 17.3 have been satisfactorily rectified.

Separate certificate for each Section or Relevant Part

17.5    (1)      Where sectional completion of the Works is provided for in the Contract or the Employer takes possession of a Relevant Part, the Architect shall issue a separate Defects Rectification Certificate in accordance with clause 17.4 for each Section or Relevant Part except for the last Section or Relevant Part.

          (2)      Upon the completion of rectifying defects to the last Section or Relevant Part in accordance with clause 17.4, the Architect shall issue a Defects Rectification Certificate for the Works and the completion of rectifying defects for the whole of the Works shall be deemed to have taken place on the date stated in the certificate.

Damage by a Specified Peril

# Again, like clauses 17.1 and 17.2, clause 17.4 deals with the Works as a whole first, followed by clause 17.5 to deal with cases when there is sectional completion or partial possession. #

# “natural causes” mentioned in clause 17.3(1) has not been mentioned here. This may possibly be a bug. #

17.6    The Contractor is not required to rectify at his own cost any damage caused by a Specified Peril occurring after Substantial Completion{, unless the Peril is caused by materials, goods or workmanship which are not in accordance with the Contract}.

# Amendment added because “Specified Perils” include, amongst others, bursting or overflowing of water tanks, apparatus or pipes, which can happen due to defects. #

Other rights and remedies

17.7    The issue of a Defects Rectification Certificate for the whole of the Works shall discharge the Contractor from any further obligation to carry out the work of rectifying defects on the Site (except for the fulfilment of his obligations under a warranty) but it shall not prejudice the Employer’s other rights and remedies under the Contract or at law regarding defective work or other breaches of contract.

# Items under warranty and latent defects are excluded from the release. #

# By clause 32.9(1), any defect which was reasonably discoverable (i.e. patent defect) at the time of the issue of the Defects Rectification Certificate but not discovered would be released. #

18  Partial possession by Employer

# The corresponding term used in the Old Forms is “Sectional Completion” which in fact is an ad-hoc Sectional Completion”.  “Sectional Completion” used in the New Forms is “pre-determined Sectional Completion”. #

Partial possession

18.1    (1)      The Employer may, with the Contractor’s consent, take possession of a part of the Works or where sectional completion is provided for in the Contract a part of a Section before Substantial Completion, and that part of the Works or part of a Section shall be referred to as a Relevant Part.

          (2)      If the Employer takes possession of a Relevant Part, the Architect shall issue a certificate to that effect:

(a)      identifying the Relevant Part being taken into possession;

(b)      giving the Relevant Date when the Employer took possession of the Relevant Part; and

(c)      stating his assessment of the estimated amount contained in the Contract Sum in respect of the Relevant Part.

Substantial Completion

18.2    Substantial Completion of the Relevant Part shall be deemed to have occurred on the Relevant Date and the following shall take effect:

(a)      the commencement of the Defects Liability Period {with the length of time unchanged} for that Relevant Part and the rectification of defects under clause 17;

(b)      the exemption from liability for damage by a Specified Peril under clause 17.6; and

(c)      the release of one-half of the Retention relating to that Relevant Part under clause 32.5.

Completion of rectifying defects

18.3    The Architect shall issue a Defects Rectification Certificate for the Relevant Part upon the completion of rectifying defects to that part under clause 17.5.

Liquidated and ascertained damages

18.4    Where the Employer requires the Contractor to pay or allow liquidated and ascertained damages under clause 24 for the Works or a Section and the Employer has taken possession of a Relevant Part under clause 18.1 then:

(a)      where sectional completion is not contemplated under the Contract, the rate of liquidated and ascertained damages in respect of the Works shall be reduced, during the period when the Works remain{s} incomplete after the Relevant Date, by the same proportion as the estimated amount contained in the Contract Sum for the Relevant Part bears to the Contract Sum; or

(b)      where sectional completion is contemplated under the Contract, the rate of liquidated and ascertained damages in respect of the relevant Section shall be reduced, during the period when the Section remains incomplete after the Relevant Date by the same proportion as the estimated amount contained in the Contract Sum for the Relevant Part bears to the estimated amount contained in the Contract Sum for the Section.

Damage by a Specified Peril

18.5    The Contractor is not required to rectify at his own cost any damage to the Relevant Part caused by a Specified Peril occurring after the Relevant Date{, unless the Peril is caused by materials, goods or workmanship which are not in accordance with the Contract}.

19  Assignment and sub-letting

Assignment

19.1    (1)      Except where provided otherwise in clause 19.1, neither party shall, without the written consent of the other, assign or transfer any of his rights or obligations under the Contract.

          (2)      The Contractor must fulfil his organization, management, planning, supervision and co-ordination obligations through the site management and supervisory team referred to in clause 10 and he shall neither assign nor make arrangements for the vicarious performance of those functions.

# “vicarious performance” means performing through a third party. #

# Sub-letting is common, but the Contractor’s organization is also an important consideration when he is awarded the Contract. This provision provides some bottom line to the scope of sub-letting. Refer also to clause 19.2(a) to complement the principle. #

          (3)      The Employer may assign or transfer the whole or any part of the benefit of the Contract after Substantial Completion of the Works, a Section or a Relevant Part without the Contractor’s consent. Any assignment shall be notified promptly to the Contractor.

# This is useful in cases where the Works are to be transferred to future owners. This does not cover assignment for the purposes of obtaining by the Employer of financing. If such assignment is required, the Contractor’s consent would be required. #

          (4)      Subject to giving prior notice to the Employer, the Contractor may assign the whole or any part of the benefit of the Contract for the purpose of obtaining financing for the carrying out of the Works provided that the assignment does not adversely affect the Contractor’s fulfilment of his obligations under the Contract.

Sub-letting

19.2    The Contractor shall be permitted, unless prohibited by the Contract, to sub-let parts of the Works provided that:

(a)      he does not sub-let the whole of the Works or incrementally sub-let parts of the Works to the same person to indirectly attain sub-letting of the whole, or substantially the whole, of the Works and retains his management role as described in clause 19.1(2) at all times;

(b)      the terms of the agreement to sub-let are, so far as is reasonable, consistent with the terms of the Contract{, and contain a condition that the employment of the sub-contractor under the sub-contract shall determine immediately upon the determination (for any reason) of the Contractor's employment under this Contract};

# The suggested addition is to go in line with the provisions in respect of Nominated Sub-Contracts. #

(c)      he submits a plan of his sub-contracting arrangement giving the names of his key sub-contractors with their scope of works and such other particulars as may be required by the Architect;

# It is not likely that the Contractors on the average would submit such a plan with definite names before awarding the sub-contracts to seek the Architect’s approval. It would be better to specify in the Tender Documents the key trades for which a proposed list of specialist sub-contractors is to be submitted with the Tender.  #

(d)      he does not sub-let any part of the Works to a sub-contractor against whom the Architect has made an objection giving his reasons;

# The reasons must be reasonable and strong. Except when a proposed list of sub-contractors is submitted for approval or information well in advance, the objection would likely be after the award of the sub-contracts and would have serious consequence. #

(e)      he removes from the Works any sub-contractor he is instructed by the Architect to remove; and

(f)      the sub-letting of a part of the Works to a Domestic Sub-Contractor does not relieve the Contractor from any liability or obligation under the Contract and he remains responsible for carrying out and completing the Works in all respects in accordance with the Contract and for the acts, defaults, omissions and neglect of a Domestic Sub-Contractor as fully as if they were his own acts, defaults, omissions or neglect.

# This re-iterates the principle that the Contractor is ultimately responsible irrespective of sub-contracting. #

20  Injury to persons and property and indemnity to Employer

# This is what one calls the “liability clause” which specifies the basic liability whether insurances are taken out or not. #

Contractor to indemnify Employer

          The Contractor shall be liable for and shall indemnify the Employer against any damage, expense, liability or loss in respect of any claim or proceedings for:

# This can be read as “… liable for any damage caused to himself … and … indemnify against any damage caused to the Employer …  #

(a)      bodily injury to, disease contracted by or the death of any person arising out of, or in the course of, or by reason of the carrying out of the Works and whether arising on or off the Site, except to the extent that the injury, disease or death of that person is due to any act or neglect of the Employer or any person for whom the Employer is responsible; and

# The default is full liability, unless due to the Employer.  #

# The Old Forms use “unless due to” for “except to the extent”.  #

# “people” includes workmen as well. #

(b)      injury or damage to real or personal property arising out of, or in the course of, or by reason of the carrying out of the Works and whether arising on or off the Site, to the extent that the injury or damage is due to a breach of contract or other default of the Contractor or any person for whom the Contractor is responsible {, but the extent is without prejudice to the Contractor's obligations under clause 2.1(1)(h) during the time periods specified therein}.

< amended on 9/9/2013 >

# The default is no liability, unless due to the Contractor.  #

# The Old Forms use “provided always that the same is due to” for “to the extent that … is due to”.  #

# “property” includes the Works and third party properties as well. #

# Paragraph (a) uses “act or neglect”. Paragraph (b) uses “breach of contract or other default”. They can have different meanings. An act or a neglect may not by itself be a breach of contract. “default” is a failure to do something, which should basically mean something under the Contract but may cover something under the law. “default” is different from “fault”.  The Old Forms use “act or neglect” and “negligence, omission or default” respectively. #

21  Insurance against injury to persons or property

# This is what one calls the “insurance clause”, which does not affect the liability clause. #

Employees’ Compensation Insurance

# Note that “ ’ ” shoud follow after “s” to be proper. #

21.1    (1)      The Contractor shall effect and maintain employees’ compensation insurance in compliance with the provisions of the Employees Compensation Ordinance in the joint names of the Contractor, his {domestic} sub-contractors and their respective sub-contractors of all tiers {and the Employer as the principal} against all liabilities arising in respect of bodily injury to, disease contracted by or death of the 【Contractor’s or any {tier’s domestic} sub-contractor’s {of all tiers} employees】『employees of Contractor or of sub-contractors of all tiers』 arising out of and in the course of their employment on the Works or in connection with the Contract. {The Contractor shall cause each Nominated Sub-Contractor to effect and maintain (and produce evidence of) employees’ compensation insurance in compliance with the provisions of the Employees Compensation Ordinance in the joint names of the Sub-Contractor, his sub-contractors of all tiers and the Employer and the Contractor as the principals against all liabilities arising in respect of bodily injury to, disease contracted by or death of the Sub-Contractor’s or any tier’s sub-contractor’s employees arising out of and in the course of their employment on the Sub-Contract Works or in connection with the Sub-Contract. The amount of the insurance cover shall be not less than $200,000,000 per event if the number of employees is more than 200 or not less than $100,000,000 per event if the number of employees is not more than 200 for liability under the Ordinance or at common law.}

# “take out an insurance” as used in the Old Forms means “effect an insurance”. #

# SFBCwQ.2005 uses “the Contractor’s or any sub-contractor’s of all tiers employees” while SFBCnQ.2006 has already corrected it to ”the employees of (the) Contractor or of sub-contractors of all tiers”. The above suggested changes make the minimum changes to either version but result in different wording. #

# The original clause requiring the Contractor to effect and maintain the insurance to cover all of his sub-contractors of all tiers is probably in line with the requirements of the Employees’ Compensation Ordinance that the principal contractor shall compensate employees of his sub-contractors as if the employees were employed directly by the principal contractor. However, in cases where Nominated Sub-Contractors are appointed before the appointment of the Contractor, no insurance would be available based on this original clause. Therefore, the suggested changes up to the first sentence added above is to require the Nominated Sub-Contractors to take out their insurance whether or not they are appointed before or after the appointment of the Contractor. #

# The last sentence added above is to accommodate contractors or sub-contractor having less number of employees. This numbers and amounts are based on the Employees’ Compensation Ordinance. #

# Sub-clause (1) after changes has admittedly become too long. #

          (2)      The insurance cover shall be against the liabilities referred to in clause 21.1(1) sustained during the period from the {Commencement Date commencement of any part of the Works whether on site or off-site} until the Defects Rectification Certificate for the whole of the Works has been issued and the Contractor has finally left the Site.

# See the comments under the definition of “Commencement Date” in clause 1 for the reason for the change. This would be important if the official Commencement Date is after the Date of Possession due to absence of Government consent. #

          (3)      As soon as the Contractor becomes aware of any workman or other person employed on the Works or in connection with the Contract suffering any bodily injury, contracting a disease or dying, he shall notify the Commissioner for Labour, with a copy of the notice to the Architect and the insurers.

Third party liability insurance

21.2    (1)      The party responsible for effecting Contractors’ All Risks Insurance of the Works under either clause 22A, 22B or 22C shall, unless otherwise stated in the Contract, effect insurances in the joint names of the Employer, the Contractor, his sub-contractors and their respective sub-contractors of all tiers against all liabilities of the insured under the Contract or otherwise in respect of:

# There may be cases where the Contractor will be required to effect a third party liability insurance without at the same time a Contractors’ All Risks Insurance, e.g. in the case of demolition works. However, demolition works nowadays include expensive covered walkways, scaffolding and props, it would be unwise not to effect a Contractors’ All Risks Insurance for such demolition works. #

# “the insureds” is sometimes used to mean more than one insured party. Similarly, “the joint-insureds”.

(a)      bodily injury to, disease contracted by or the death of any person arising out of or in the course of or by reason of the carrying out of the Works and whether arising on or off the Site; and

# The scope here is wider that the liability clause 20(a) with intention to cover an act or neglect of the Employer as well. It is therefore important that the Employer is one of the insureds. #

(b)      injury or damage to real or personal property other than the Works insofar as the injury or damage arises out of, or in the course of, or by reason of the carrying out of the Works and whether arising on or off the Site, including injury or damage caused by any act or neglect of the Employer or any person for whom the Employer is responsible or by collapse, subsidence, heave, vibration, weakening or removal of support or lowering of ground water due to any cause other than:

# The scope here is wider than the liability clause 20(b), except that this is restricted to third party properties only. #

(i)      ionizing radiation or contamination by radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel, radioactive toxic explosive or other hazardous properties of any explosive nuclear assembly or nuclear component thereof;

# This is one of the “Excepted Risks”. #

(ii)      pressure waves caused by aircraft or other aerial devices travelling at sonic or supersonic speeds{,; and}

# This is also one of the “Excepted Risks”. #

(iii)      non-negotiable exclusions imposed by the insurance market.

          (2)      The insurance cover shall be against the liabilities referred to in clause 21.2(1) sustained during the period from the {Commencement Date commencement of any part of the Works whether on or off-site} until the Defects Rectification Certificate for the whole of the Works has been issued and the Contractor has finally left the Site.

          (3)      The insurances shall include:

(a)      a cross liability clause to the effect that the insurances shall cover the Employer, the Contractor, his sub-contractors and their sub-contractors of all tiers as separate insured, and

# If one of the insureds causes personal injury or death or property loss or damage to another of the insureds, since both of them are jointly insured, the other one would not be treated as a third party, and the one liable would not be covered by the insurance. To remedy this situation, a cross liability clause is required to deem that a separate insurance is issued to every one of the insureds, and all other insureds are treated as third party. #

# Note that the standard policy wording may already have the purpose of the cross liability clause embodied. The so called “cross liability clause” endorsement may in fact put limitations to the standard policy wording. #

(b)      a waiver of any right of subrogation which the insurers may have against any of the insured.

# It is important that the waiver goes hand in hand with the cross liability clause. #

          【(4)】『(c)』The third party liability insurances against injury or death to any person and injury or damage to real or personal property under clause 21.2(1) shall each be effected with the limit of indemnity stated in the Appendix for any one occurrence or series of occurrences arising out of one event but unlimited in the aggregate amount for the period of the insurance.

# There should also be an endorsement to cover the Employer’s properties (Principal’s properties) such as the existing buildings and foundations which are not insured as part of the Works. It would have a different limit of indemnity and level of excess. #

          {【(5)】『(4)』 If the Contractor considers the amounts of insurance specified are inadequate to cover his obligations, he shall be at liberty to increase the amounts insured at his own expense.}  

Insurers and terms to be approved

21.3    (1)      The insurances under clause 21 shall be placed with insurers acceptable to both parties and approved in writing by the party not responsible for effecting the insurances.

          (2)      The cover shall be in terms approved by the Architect but in any case cannot be beyond the best terms currently available.

Policies to be produced

21.4    The party responsible for effecting the insurances under clause 21.2 shall provide evidence of cover to the other party prior to the {Commencement Date commencement of any part of the Works whether on or off-site} and shall produce the policies of insurance and the premium receipts for inspection and approval by the other party as soon as practicable afterwards.

Event of failure to insure

21.5    If either party defaults in effecting or in maintaining the insurance cover required by clause 21, the other party may effect and maintain this insurance and the premium shall be recoverable from the defaulting party as a debt. {If a Nominated Sub-Contractor defaults in effecting or in maintaining the insurance cover required by clause 21.1, the Contractor shall effect and maintain this insurance, otherwise the Employer may effect and maintain this insurance, and the premium shall in either case be recoverable from the defaulting party as a debt.}

# There is no mention of administrative charge. #

No prejudice to Contractor’s indemnity

21.6    The effecting and maintaining of insurances by either the Employer or the Contractor {(or his Nominated Sub-Contractors)} under clause 21 is without prejudice to the Contractor’s obligation to indemnify the Employer under clause 20.

# This reinforces the principle that the insurance clause does not affect the liability clause which is clause 20. #

{Deductibles and exclusions

21.7    Any deductible or excess or exclusion included in the insurances under clause 21.2 shall be borne by the parties who would have been liable in the absence of the insurances in proportion to their contributing liabilities.}

# This suggested additional clause is to clarify the misconception that whoever lodges the insurance claim should bear the deductible or excess or exclusion. #

22  Insurance of the Works

# Clause 22 is rather complicated because of its drafting style, whereby clause 22 covers the general principle, clause 22A is applicable when the Contractor insures, clause 22B is applicable when the Employer insures, and clause 22C is applicable when an existing building is involved and the Employer insures. #

Alternative clauses for Contractors’ All Risks Insurance of the Works

# "Contractors' All Risks" with the apostrophe after "s". #

22.1    Either clause 22A, 22B or 22C shall apply according to which of those clauses is specified in the Appendix and both parties shall comply with all the conditions in the insurance policy effected by either party.

Basic requirements for Contractors’ All Risks Insurance of the Works

22.2    The basic requirements for Contractors’ All Risks Insurance of the Works are, unless otherwise set out in the 【Specification or Contract Bills】『Contract』 or as agreed between the parties, to provide insurance cover against any physical loss of or damage to the Works, existing constructions on the Site, temporary works or materials or goods that are the property of the insured or for which the insured is responsible while on the Site{, being fabricated or stored off-Site or in transit by road, rail, air or marine craft within Hong Kong or its territorial waters} including:

# “set out in the Contract” is a simpler but equally effective phrase. #

# “existing constructions” can be foundations, hoardings, covered walkways, and other things taken over by the Contractor. To ensure sufficient coverage, the value of these things should be added to the sum insured. Alternatively, they can be insured not as part of the insured property but as part of the Principal’s properties under the third party liability insurance provided that the limit of indemnity there is adequate enough to cover the value of such properties. #

# “existing constructions” can be foundations, hoardings, covered walkways, and other things taken over by the Contractor. To ensure sufficient coverage, the value of these things should be added to the sum insured. #

# “the insureds” is sometimes used to mean more than one insured party. Similarly, “the joint-insureds”. #

# Specialist Contractors and the values of their works should also be specifically added to the insured and to the sum insured. It is permissible to set out this requirement in the Specification or the Bills of Quantities instead of the Special Conditions of Contract. See clause 22.3. #

# The above deletion has been suggested because standard insurance policy would not cover risks off-site. If required, an endorsement is required. #

(a)      costs and expenses in respect of shoring and propping up, testing, dismantling or demolishing part of the Works, existing constructions on the Site or temporary works, removing and disposing of debris and damaged materials or goods and protecting the Works, existing constructions on the Site, temporary works and materials or goods;

(b)      professional fees at the percentage stated in the Appendix;

(c)      all necessary extra costs of express freight or airfreight; and

(d)      all necessary extra overtime labour costs,

# (a) to (d) all refer to matters incurred in the repair, reinstatement, redesign and supervision. #

# (c) and (d) are not covered by standard insurance policy and would require endorsements. #

incurred in the repair, reinstatement, redesign and supervision following damage to the Works, existing constructions on the Site, temporary works or materials or goods from any cause excluding:

(e)      the cost of repairing or replacing property which is defective solely due to natural wear and tear resulting from ordinary use or deterioration, rusting or corrosion;

(f)      loss or destruction of or damage to cash, banknotes, treasury notes, cheques, stamps, deeds, bonds, bills of exchange, promissory notes or securities;

(g)      loss or damage solely due to the total suspension of carrying out the Works where the insured failed to take reasonable precautions to protect the property insured and to avoid or reduce the amount of loss or damage;

(h)      loss of any property by disappearance or by shortage where the loss is revealed only by the making of an inventory or periodic stocktaking and is not traceable to an identifiable event;

(i)      loss or damage to materials, goods or work directly resulting from {its their} own defect in materials, goods or workmanship or fault, defect, error or omission in design, plan or specification but not excluding resultant damage to any other materials, goods or work which are lost or damaged as a consequence of those defective materials, goods or work;

(j)      loss or damage to property during the period between 14 days after Substantial Completion and the date of issue of the Defects Rectification Certificate other than loss or damage arising from a cause occurring prior to the commencement of that period, or caused in the course of remedying defects or the testing and commissioning of building services or other installations;

# The “14 days” is to match that stated in clause 22.4(1). #

(k)      loss or damage to plant, equipment and temporary buildings and their contents owned or hired by the Contractor or any person for whom the Contractor is responsible;

# This is insurable if these items and their values are specifically included in the calculation of the sum insured. #

(l)      ionising radiation or contamination by radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel, radioactive toxic explosive or other hazardous properties of any explosive nuclear assembly or nuclear component thereof;

(m)      pressure waves caused by aircraft or other aerial devices travelling at sonic or supersonic speeds; and

(n)      non-negotiable exclusions imposed by the insurance market.

# (e) to (n) except (k) are matters which are usually excluded by insurance policies, but such exclusions do not by themselves mean similar exclusions from the respective liabilities of the Employer or the Contractor. Although (e) to (n) attempt to define the exclusions in greater details, there is a chance that the wording is not the same as that used in the insurance policies. The inconsistency may lead to rejection of the policies if the Architects or the Quantity Surveyors checking the policies stick to the wording literally. Since the respective liabilities would not be affected, as long as the exclusions in the insurance policies are standard (i.e. the usual standard exclusions) and the required coverage is not significantly affected, they should be accepted. No insurance is worse than insurance with some defects. #

Specific requirements for Contractors’ All Risks Insurance of the Works

22.3    The specific terms and conditions required for the Contractors’ All Risks Insurance of the Works if required to be different from the basic terms shall be as set out in the 【Specification or the Contract Bills】『Contract』 or shall be as agreed between the parties but in any case the terms cannot be beyond the best terms currently available.

Insurance of the Works to be in joint names and period of insurances

22.4    (1)      The Contractors’ All Risks Insurance of the Works shall be effected and maintained in the joint names of the Employer, the Contractor, his sub-contractors and their respective sub-contractors of all tiers and suppliers. The insurance cover shall run from the Commencement Date {or the Date for Possession of the Site whichever is earlier < alternatively: or the Date for Entering the Site whichever is earlier >} until 14 days after the issue of the Substantial Completion Certificate for the Works or 14 days after the determination of the employment of the Contractor, whether valid or not, whichever is earlier.

          (2)      If the Contract provides for sectional completion of the Works or the Employer has taken possession of a Relevant Part, the obligation {of the party responsible for effecting to effect} the Contractors’ All Risks Insurance of the Works shall terminate in relation to any Section or Relevant Part 14 days after Substantial Completion of that Section or Relevant Part.

# There is a subtle difference between “the obligation of the party … shall terminate” and “the obligation to effect … shall terminate” since the former can also mean to include obligation other than effecting the insurance. #

         {(3)      The insurances shall include:

(a)      a cross liability clause to the effect that the insurances shall cover the Employer, the Contractor, his sub-contractors and their sub-contractors of all tiers and suppliers as separate insured, and

(b)      a waiver of any right of subrogation which the insurers may have against any of the insured.}

# Unlike the third party liability insurance, a cross liability clause and the corresponding waiver are not available in the usual Contractors’ All Risks Insurance policies because they should not be applicable. The insured property is jointly owned by the joint-insureds. If it is damaged by one of the joint-insureds negligently, it is still covered. #

Parties’ obligations if loss or damage occurs

22.5    In the event of loss or damage to work, materials or goods caused by a peril covered by the Contractors’ All Risks Insurance of the Works, the Contractor shall:

(a)      notify the Architect of the extent, nature and location of the loss or damage immediately upon discovering it;

(b)      follow all of the requirements in the insurance policy, prepare and submit the insurance claim and negotiate with the insurers to achieve a fair settlement; and

(c)      restore lost or damaged work, remove and dispose of any debris, repair or replace materials or goods which have been stolen, lost, destroyed or damaged, and proceed with carrying out the Works with due diligence and in accordance with the Contract immediately after any inspection required by the insurers has been carried out.

# The Contractor shall carry on with the Works after inspection by the insurers while the Old Forms specify “upon acceptance of any claim under the insurances” which will be much later and is undesirable. #

Contractor’s payment not more than insurance proceeds

22.6    The Contractor shall not be entitled to any payment in respect of the replacement, repair or restoration of the loss or damage and the removal and disposal of debris other than the amount received under the Contractors’ All Risks Insurance of the Works {less the amount to cover professional fees} unless and to the extent that the loss or damage was caused or contributed to by a breach of contract or other default by the Employer or any person for whom the Employer is responsible.

# This implies that the insurance compensation should be paid to the Employer first before being paid to the Contractor. In practice, the Employer would not bother to be involved for small claims and let the Contractor deal with the insurers directly. #

Insurance without prejudice to Contractor’s obligations

22.7    The effecting and maintaining of Contractors’ All Risks Insurance of the Works by either party is without prejudice to the Contractor’s obligation for the care of the Works under clause 2.1.

# This reinforces the principle that the insurance clause does not affect the liability clause which is clause 2.1. #

{Deductibles and exclusions

22.8    Any deductible or excess or exclusion included in the Contractors’ All Risks Insurance of the Works shall be borne by the parties who would have been liable in the absence of the insurances in proportion to their contributing liabilities.}

22A    Insurance of the Works by the Contractor

Contractor to effect Contractors’ All Risks Insurance of the Works

22A.1 The Contractor shall effect and maintain Contractors’ All Risks Insurance of the Works for the full reinstatement value of the Works and all other costs set out in clauses 22.2 and 22.3.

# The full reinstatement value should at least cover the original Contract Sum inclusive of contingencies to cover the increase to the final Contract Sum, value of existing constructions, value of specialist works, value of materials and goods supplied by the Employer for incorporation into the Works, future inflation, etc. plus professional fee. #

Insurer to be approved and remedy if Contractor fails to insure

22A.2 (1)      The Contractors’ All Risks Insurance of the Works shall be effected with insurers approved by the Architect. The Contractor shall deposit with the Architect evidence of cover prior to the commencement of the Works {or taking possession of the Site < alternatively: or entering the Site >} and produce the premium receipt and any relevant endorsements as soon as practicable afterwards, followed by a copy of the insurance policy as soon as it becomes available.

# A properly signed cover note issued by the insurers would be an evidence of cover. #

# If there is no evidence of cover, the Contractor should not be allowed to commence actual work on site. #

          (2)      If the Contractor defaults in effecting or in maintaining the Contractors’ All Risks Insurance of the Works, the Employer may effect and maintain it himself and recover the cost of the insurance premium from the Contractor in accordance with clause 40 or as a debt.

# There is no mention of administrative charge. #

Use of annual policy maintained by Contractor

22A.3 (1)      If the Contractor maintains an annual policy of insurance which provides cover no less than that required under clause 22A.1, an endorsement attached to the annual policy naming the Works, the Employer, the Contractor, his sub-contractors and their respective sub-contractors of all tiers and suppliers shall be a discharge of the Contractor’s obligations under clause 22A.1.

          (2)      The Contractor shall produce the annual policy of insurance, premium receipt and the endorsement for inspection by the Architect prior to the commencement of the Works {or taking possession of the Site < alternatively: or entering the Site >} and the annual premium receipt within 14 days after each renewal date.

22B    Insurance of the Works by the Employer

Employer to effect Contractors’ All Risks Insurance of the Works

22B.1 The Employer shall effect and maintain Contractors’ All Risks Insurance of the Works for the full reinstatement value of the Works and all other costs set out in clauses 22.2 and 22.3.

Remedy if Employer fails to insure

22B.2 (1)      The Employer shall provide evidence to the Contractor that the Contractors’ All Risks Insurance of the Works under clause 22B.1 has been effected and is being maintained prior to the commencement of the Works {or the Contractor taking possession of the Site < alternatively: or the Contractor entering the Site >} and produce the premium receipt and any relevant endorsements as soon as practicable afterwards, followed by a copy of the insurance policy as soon as it becomes available.

          (2)      If the Employer defaults in effecting or in maintaining the Contractors’ All Risks Insurance of the Works, the Contractor may effect and maintain it himself and the cost of the insurance premium shall be added to the Contract Sum.

# There is no mention of administrative charge. #

22C    Insurance of existing building and insurance of the Works by the Employer

Employer to effect insurance against Specified Perils to the existing building

22C.1 Where the Works are to be carried out to and/or within an existing building, the Employer shall effect and maintain a policy of insurance against the Specified Perils for the full cost of reinstatement, repair or replacement of loss or damage to that existing building which is to be extended or within which the Works are to be carried out together with its contents and all other costs set out in clauses 22.2 and 22.3. The insurance cover shall run from the Date for Possession of < alternatively: the Date for Entering > the Site stated in the Appendix until 14 days after the issue of the Substantial Completion Certificate for the Works or 14 days after the determination of the employment of the Contractor, whether valid or not, whichever is earlier.

# Although this clause says “Where the Works are to be carried out to and/or within an existing building, the Employer shall effect and maintain …”, this clause is only applicable if so declared in the Appendix to the Conditions of Contract. #

# This arrangement is rarely used. If the existing building is under multiple ownership, and if the Employer is only one of the owners of the building, it would not be possible for him to insure for the whole building. This also applies if the Employer is the incorporated owners of the building, he would only be responsible for the common areas of the building. Although the common areas may have annual third party liability insurance and limited property damage insurance, the incorporated owners would not change the existing policies, which require low premia, to cover the Works to disturb the track record. This situation would also apply even if the building is under the sole ownership of the Employer. Therefore, the usual practice is to effect a Contractors’ All Risks and Third Party Liability Insurance for the Works and endorse it to cover the existing building not for the full value but as Principal’s properties for a limited amount of indemnity. #

Employer to effect Contractors’ All Risks Insurance of the Works

22C.2 The Employer shall effect and maintain Contractors’ All Risks Insurance of the Works for the full reinstatement value of the Works in and/or to the existing building and all other costs set out in clauses 22.2 and 22.3.

Remedy if Employer fails to insure

22C.3 (1)      The Employer shall provide evidence to the Contractor that the insurances under clauses 22C.1 and 22C.2 have been effected and are being maintained prior to the commencement of the Works {or the Contractor taking possession of the Site < alternatively: or the Contractor entering the Site >} and produce the premium receipts and any relevant endorsements as soon as practicable afterwards, followed by a copy of each of the insurance policies as soon as they become available.

          (2)      If the Employer defaults in effecting or in maintaining the insurances under clauses 22C.1 and/or 22C.2, the Contractor may effect and maintain them himself and the cost of the insurance premiums shall be added to the Contract Sum.

# There is no mention of administrative charge. #

          (3)      The Contractor shall be given the right of entry and inspection to carry out a survey and make an inventory of the existing building and its contents if the clause 22C.1 insurance is to be effected and maintained by the Contractor under clause 22C.3(2).

# It can be seen that clauses 22A, 22B and 22C have a lot of common provisions. These clauses could have been combined to become more compact. #

23  Possession, commencement and completion

Possession of Site < alternatively: Entering the Site >

23.1    (1)      The Employer shall give possession of the Site to < alternatively: give entry to the Site with sufficient work locations to commence work by > the Contractor on or before the Date for Possession of < alternatively: the Date for Entering > the Site stated in the Appendix. < add when alternative used: Exclusive possession of the Site is not to be given to the Contractor. >

          (2)      Where the Contract provides for the Employer to give possession of < alternatively: give entry to > the Site to the Contractor in two or more parts on the dates stated in the Appendix, the Employer shall give possession of < alternatively: give entry to > the Site to the Contractor in parts on or before those dates.

# This permits pre-determined phased possession of the Site. The Old Forms do not have such a choice unless by way of special amendment. #

Commencement and completion

23.2    The Contractor shall commence the Works on the Commencement Date stated in the Appendix or when instructed to do so by the Architect, proceed regularly and diligently with the Works and complete the Works, and, where sectional completion is provided for in the Contract, any Section on or before the Completion Date of the Works or that Section stated in the Appendix.

# As commented at clause 1.6, the introduction of the term “Commencement Date” causes problem. #

Postponement or suspension

23.3    The Architect may issue instructions regarding:

(a)      the postponement of the Date for Possession of < alternatively: the Date for Entering > the Site or a part of the Site;

(b)      the postponement of the Commencement Date of the whole or a part of the Works; or

(c)      the postponement or suspension of the whole or a part of the Works.

# The definition of “postponement” has been clarified to cover postponement of possession, of commencement and during construction. The Old Forms use “postponement of any work to be executed” which may be argued to exclude postponement of giving possession of the Site. #

24  Damages for non-completion

Architect to certify Contractor’s failure to complete on time

24.1    (1)      If the Contractor fails to complete the Works or a Section by the Completion Date, the Architect shall issue a certificate to that effect confirming that all claims for extensions of time have been addressed in accordance with clause 25 and stating the date by which the Works or Section ought to have been completed.

# The Old Forms do not specifically require that all claims for extensions of time have been addressed. #

# The certificate is usually called “Certificate of Non-Completion”, though this term has not been mentioned in the Old Forms and the New Forms. #

          (2)      If a new Completion Date is fixed after the issue of the certificate referred to in clause 24.1(1), the fixing of the new Completion Date shall cancel that certificate and the Architect shall, if appropriate, issue another certificate to correspond to the new Completion Date.

Liquidated and ascertained damages

24.2    (1)      If the Architect issues a certificate under clause 24.1(1), the Contractor shall, if required to do so by a notice from the Employer, pay or allow to the Employer liquidated and ascertained damages at the rate per day referred to in clause 24.2(3) for the period between the Completion Date and the Date of Substantial Completion.

# A notice from the Employer is required before liquidated and ascertained damages can be imposed. #

# Clause 32.2(4)(c) permits the deduction from the gross valuation of Interim Certificate any other amount which is required by the Contract to be deducted from the Contract Sum. This clause 24.2(1) does not require the liquidated and ascertained damages to be deducted from the Contract Sum. Therefore, liquidated and ascertained damages should not be deducted from Interim Certificates, but should be handled separately. Government General Conditions of Contract expressly permit the deduction from payment certificates. #

# The “period between” means (Date of Substantial Completion – Completion Date), i.e. the period of culpable delay. #

          (2)      The Employer’s notice under clause 24.2(1) shall not be given either before the certificate under clause 24.1(1) is issued or after the Final Certificate is issued.

# It is therefore important that the notice should be issued before the Final Certificate is issued. Clause 32.8(4) permits the deduction from the balance of payment under the Final Certificate all deductions authorised by the Contract or authorised by law to be set off. #

# Clause 32.7 dealing with the computation of the Final Contract Sum does not mention the deduction of liquidated and ascertained damages from the Final Contract Sum. However, if the Final Contract Sum is mutually agreed, there is no reason why the deduction of liquidated and ascertained damages cannot be made from the Final Contract Sum and reflected in the final account so that the Final Contract Sum represents the final total amount payable to the Contractor. #

          (3)      The rate per day of liquidated and ascertained damages for the Works or a Section shall be as stated in the Appendix and adjusted in accordance with clause 18.4 in regard to the completion of any Relevant Part.

# The rate of liquidated and ascertained damages should be a genuine pre-estimate at the time of tendering of the loss suffered by the Employer due to delayed completion of the Works or a Section. It would amount to a penalty which would not be enforceable if the rate is set higher than the genuine pre-estimate. It would still be applicable if the eventual actual loss is higher or lower than the genuine pre-estimate. The losses which can be considered are: loss of interest on capital invested without return, additional supervision charges, loss of profit (sales or rentals less expenditure) which can be generated after completion of the Works, additional expense to use alternative accommodation in the absence of the completed Works, etc. #

          (4)      The Employer may recover the liquidated and ascertained damages from the Contractor under clause 40 or as a debt.

# The Employer can made deductions when honouring Interim Certificates and Final Certificate provided prior notices have been properly given. #

Refund if Completion Date revised

24.3    If the Architect fixes a later Completion Date under clause 25.3, the Employer shall refund to the Contractor the amount of liquidated and ascertained damages paid or allowed to the Employer under clause 24.2 for the period from the original Completion Date up to the later Completion Date plus interest at 1% below the judgment debt rate prescribed from time to time by the Rules of the High Court (Chapter A, Laws of Hong Kong) within 28 days of the Architect fixing the later Completion Date.

# This is an improvement over the Old Forms by expressly specifying refund and interest. #

25  Extension of time

Contractor’s first notice of delay

25.1    (1)      As soon as practicable but in any case within 28 < alternatively: 14 for short contract period > days of the commencement of an event likely to cause delay to the completion of the Works or a Section beyond the Completion Date becoming apparent, the Contractor shall give notice (referred to in {Cc}lause 25 as the “first notice”) to the Architect.

# Notice should be given for any event likely to cause delay, not just events entitling to extension of time. #

# The benchmark date to measure delay is the (currently extended) Completion Date, not the realistic completion date which may be later or earlier. #

          (2)      The first notice shall:

(a)      state the likelihood and estimated length of the delay beyond the Completion Date;

# More properly, the length of the delaying event itself and the length of the delay caused to the Completion Date should be stated, because there may be float time to use. #

# Again, the benchmark date to measure delay is the (currently extended) Completion Date, not the realistic completion date. #

(b)      set out the material circumstances including the cause of the delay; and

(c)      state if the Contractor considers that he is or may become entitled to an extension of time due to the effects of an event listed in clause 25.1(3) (referred to in clause 25 as a “listed event”) and if so identify which of the listed events he believes to be the cause of the delay.

# The UK JCT Forms of Contract call “listed event” as “relevant event”. The United States contracts call it “excusable event”. #

          (3)      The listed events are as follows:

# By a legal rule of construction “expressio unius est exclusio alterius” (the express mention of one thing excludes all others), a list of events will exclude events not listed. Events not listed will not be entitled to extension  of time.

# “Neutral event” means an event caused not by the Employer or the Contractor. Neutral events are entitled to extension of time only if so stated, but there will be no financial compensation. Except as aforesaid, the Contractor has to take the risks of encountering neutral events. However, if by reason of a Variation or a listed event or an event caused by the Employer or any person for whom the Employer is responsible, the Contractor has encountered a greater extent of the neutral events, the valuation of the Variation or the assessment of the extension of time for the listed event should take into account the additional cost and time caused by the increased extent of the neutral events. A typical example would be that extension of time should be further granted for days of inclement weather occurring during the period of extension to compensate the working days lost even though the listed event (b) has been deleted. #

(a)      force majeure;

# Neutral event. #

(b)      inclement weather conditions, being rainfall in excess of twenty millimetres in a twenty-four hour period (midnight to midnight) as recorded by the Hong Kong Observatory station nearest to the Site, and/or {its their} consequences adversely affecting the progress of the Works < alternatively: delete this item entirely except for projects susceptible to weather >;

# Neutral event. #

# “nearest to the Site” is introduced to the New Forms. #

# “consequences” is intended to mean those caused by the inclement weather conditions but happening after the time of the inclement weather conditions, e.g. floods, landslides, etc. #

# “adversely affecting the progress of the Works” should be applicable to all listed events. #

(c)      the hoisting of tropical cyclone warning signal No. 8 or above or the announcement of a Black Rainstorm Warning {and/or its consequences adversely affecting the progress of the Works} < alternatively: delete this item entirely except for projects susceptible to weather >;

# Neutral event. #

# Theoretically, the full effect including the after-effects should be taken into consideration. However, since (b) mentions “consequences” while (c) does not, the suggested additional phrase is to avoid different interpretations caused by the presence and the absence of the word “consequences”. #

(d)      the Excepted Risks {excluding item (c) of the definition of Excepted Risks in clause 1.6};

< amended on 9/9/2013 >

# Neutral event. #

# “Excepted Risks” is introduced to the New Forms. Item (c) of the Excepted Risks refers to “a cause due to any neglect or default of the Architect, the Employer or any person for whom the Architect or the Employer is responsible”. This would overlap with most of the listed events, is too wide in scope and should therefore be excluded here to avoid the overlap. #

(e)      loss or damage caused by a Specified Peril {excluding storm and tropical cyclone};

# Neutral event. #

# Storm and tropical cyclone are part of the Specified Perils but this would overlap with listed events (b) and (c). Exclusion is therefore suggested. #

(f)      an Architect's instruction under clause 2.4 to resolve an ambiguity, discrepancy in or divergence between the documents listed in that clause;

(g)      an Architect's instruction under clause 8.2 requiring the opening up for inspection of work covered up or the testing of materials, goods or work and the consequential making good where the cost of that opening up, testing and making good is required by that clause to be added to the Contract Sum;

# “where” = “provided”. If the cost is not required by clause 8.2(3) to be added to the Contract Sum, it means that the opening up, testing and making good are the Contractor’s responsibility without extension of time entitlement. #

(h)      an Architect's instruction under clause 13.1 requiring a Variation;

# There is only one place in the Conditions of Contract mentioning “deemed to be a Variation“. It is at clause 14.3(1) regarding error in or omission from the Contract Bills. It is unlikely that deemed Variation will have extension of time entitlement. #

(i)      an Architect’s instruction under clause 13.2 resulting in an increase in the work to be carried out of sufficient magnitude to cause delay, provided that the variance was not apparent from the Contract Drawings;

# Newly introduced to the New Forms, but note the proviso which is important. #

(j)      an Architect's instruction under clause 23.3 regarding:

(i)      the postponement of the Date for Possession of < alternatively: the Date for Entering >  the Site or part of the Site;

(ii)      the postponement of the Commencement Date of the whole or a part of the Works; or

(iii)      the postponement or suspension of the whole or a part of the Works, unless:

●        notice of the postponement or suspension is given in the Contract; or

●        the postponement or suspension was caused by a breach of contract or other default by the Contractor or any person for whom the Contractor is responsible;

# Expanded definition to tie in with clause 23.3. #

(k)      compliance with clause 34.1 or with an Architect’s instruction under clause 34.2 requiring the Contractor to permit the examination, excavation or removal by a third party of an object of antiquity found on the Site;

(l)      late instructions from the Architect, including those to expend a Prime Cost Sum or a Provisional Sum, or the late issue of the drawings, details, descriptive schedules or other similar documents referred to in clause 5.6 except to the extent that the Contractor failed to comply with clause 5.7(2);

# Clause 5.7(2) requires the Contractor to request for information sufficiently in advance. #

(m)      delay caused by a delay on the part of a Nominated Sub-Contractor or Nominated Supplier in respect of an event for which the Nominated Sub-Contractor or Nominated Supplier is entitled to an extension of time under the sub-contract or supply contract {except for events due to an act of prevention, a breach of contract or other default of the Contractor or any person for whom the Contractor is responsible};

# The change from “by delay on the part of” in the Old Forms to “delay caused by a delay on the part of” is intended to emphasise that it is the critical delay which matters. #

# The Old Forms have been criticised that any delay on the part of (due to) Nominated Sub-Contractors or Nominated Suppliers can lead to extension of time to the Main Contract. The New Forms try to remedy this by specifying that the delay would be restricted to those entitling to an extension of time under the sub-contract or supply contract.” #

# Strictly speaking, if a Nominated Sub-Contractor is entitled to extension of time, there would be no delay on his part. More correctly, it is a delay to the Sub-Contract Works’ progress or completion. #

# The suggested exception is important because the sub-contract or supply contract would permit extension of time for the Contractor’s fault. Without the exception, a Contractor’s fault would entitle the Sub-Contractor and Supplier to extension of time under the sub-contract or supply contract which in turn would entitle the Contractor himself to extension of time under the Main Contract. #

# Not really a neutral event. Presumably there is a possibility for financial compensation, but this is not a qualifying event under clause 27. However, if the sub-contract or supply contract permits extension of time, except for those due to the Contractor’s fault, it is likely that the same ground is a listed event here. There is a possibility for financial compensation if that listed event is also a qualifying event under clause 27. #

(n)      delay caused by a sub-contractor or supplier nominated by the Architect under clause 29.2(6) despite the Contractor’s valid objection, subject to clause 29.2(7);

# Newly introduced to the New Forms. Clause 29.2(7) specifies the detailed conditions. #

(o)      delay caused by the nomination of a replacement Nominated Sub-Contractor or Nominated Supplier under clause 29.13 including any prolongation of the period of the relevant sub-contract or the time for the supply and delivery of materials and goods, provided that the determination of the employment of the original Nominated Sub-Contractor or the termination of the original Nominated Supply Contract was not in the opinion of the Architect a consequence of a breach of contract or other default by the Contractor or any person for whom the Contractor is responsible;

# Newly introduced to the New Forms to reflect the legal development that delay in re-nomination and the subsequent longer time to complete should not be the Contractor’s responsibility. #

# Though not really a neutral event, no financial compensation under clause 27. #

(p)      delay caused by a Specialist Contractor;

(q)      delay caused by a statutory undertaker or utility company referred to in clause 6(4)(1) failing to commence or to carry out its work in due time provided that the Contractor has taken all practicable measures to cause it to commence and to carry out and complete its work on time;

# Newly introduced to the New Forms to distinguish them from Specialist Contractors. #

# Neutral event after the distinction. #

(r)      the failure of the Employer to supply or supply on time materials, goods, plant or equipment that he agreed to provide for the Works;

# Newly introduced to the New Forms. #

(s)      the failure of the Employer to give possession of the Site < alternatively: give entry to the Site > or, under clause 23.1(2), a part of the Site on the Date for Possession of < alternatively: the Date for Entering > the Site or the part of the Site stated in the Appendix, or the Employer subsequently depriving the Contractor of the whole or a part of the Site;

# Newly introduced to the New Forms. There is some overlap with listed event (j)(i). #

(t)      unreasonable delay by a Government department in giving an approval or a consent which causes delay to the Works;

# Neutral event. #

# Newly introduced to the New Forms. #

# Not a qualifying event under clause 27 to have financial compensation. However, if the delay affects the issue of the Architect’s drawings, then it may be treated as part of the late issue of information by the Architect under listed event (l) which is also a qualifying event under clause 27. Therefore, this listed event essentially relates to approvals and consents which the Contractor is responsible to obtain. #

(u)      a special circumstance considered by the Architect as sufficient grounds to fairly entitle the Contractor to an extension of time; and

# Newly introduced to the New Forms. #

# Restricted to neutral event only, when listed event (v) exists and covers those caused by the Employer. No financial compensation. #

(v)      an act of prevention, a breach of contract or other default by the Employer or any person for whom the Employer is responsible.

# Newly introduced to the New Forms. #

# The optional extension of time provisions for the inability to secure labour, goods and materials in the Old Forms have been deleted. #

          (4)      The Contractor shall:

(a)      continuously use his best endeavours to prevent or mitigate delay to the progress of the Works, however caused, and to prevent the completion of the Works being delayed or further delayed beyond the Completion Date, provided that the words “best endeavours” shall not be construed to mean that the Contractor is obliged to spend additional money, without reimbursement under clause 26, to accelerate the carrying out of the Works to recover delay that the Contractor did not cause; and

# This clarifies that the Contractor is not obliged to accelerate at extra costs to catch up delays not caused by him. Compare with clause 25.5. #

(b)      do all that may reasonably be required to the Architect’s satisfaction to proceed with the Works.

Contractor’s second notice

25.2    The Contractor shall, as soon as practicable but in any case within {28 14} days of giving the first notice, submit a second notice (referred to in clause 25 as the ‘second notice’) to the Architect giving:

(a)      substantiation that the listed event is the cause of the delay; and

(b)      particulars of the cause, effect and predictable length of the delay to the completion of the Works or a Section beyond the Completion Date in sufficient detail to enable the Architect to make a decision under clause 25.3(1);

or, where the listed event has a continuing effect the Contractor shall:

(c)      give the Architect a statement to that effect together with:

(i)      substantiation that the listed event is the cause of the delay; and

(ii)      interim particulars including details of the cause and effect and an estimate of the length of the delay to the completion of the Works or a Section beyond the Completion Date;

(d)      make further submissions to the Architect at intervals not exceeding {28 14} days giving further interim particulars and estimates of the length of the delay until it becomes possible to predict the length of the delay with reasonable accuracy; and

(e)      within 14 days after the delay can be predicted with reasonable accuracy, submit to the Architect final particulars of the cause, effect and predictable length of the delay to the Works or a Section beyond the Completion Date in sufficient detail to enable the Architect to make a decision under clause 25.3(1).

Fixing new Completion Date

25.3    (1)      After receipt of the Contractor’s {first or} second notice the Architect shall give an extension of time to the Contractor by fixing a later Completion Date if he is satisfied that the completion of the Works or a Section is being or is likely to be delayed beyond the Completion Date by the listed event stated by the Contractor in his first and{/or} second notices to be the cause of the delay.

          (2)      The Architect shall give the extension of time, and the reasons for his decision as soon as practicable but in any case within {60 28} days after the receipt of the particulars submitted with the second notice under clause 25.2.

          (3)      If, after receiving the first and second notices, the Architect decides not to fix a later date as a new Completion Date:

(a)      the Architect shall notify the Contractor of this, giving the reasons for his decision, as soon as practicable but in any case within {60 28} days of receipt of the particulars submitted with the second notice under clause 25.2; and

(b)      the Architect may revise his decision and fix a later date as the new Completion Date if the Contractor provides further and better particulars within 28 days of the Architect’s notification under clause 25.3(3)(a).

          (4)      If the Contractor fails to submit the notices within the time frame prescribed under clause 25.1 or clause 25.2 but a first notice is nevertheless submitted, the Architect shall, if he is satisfied that the completion of the Works or a Section has been delayed by the listed event stated in the Contractor’s first notice, give an extension of time to the Contractor under clause 25.3 to the extent that he is able to on the information available.

# Clause 25.1 refers to the first notice. However, this sub-clause is applicable when the time frame prescribed under clause 25.1 has not been met. It would appear that “a first notice” mentioned here refers not to the first notice under clause 25.1, but to any first notice submitted at any time after the time frame. #

          (5)      If after fixing a new Completion Date under clause 25.3, the Architect issues an instruction under:

(a)      clause 13.1 for the omission of work or the omission or diminution of an obligation; or

(b)      clause 13.2 resulting in a substantial reduction of the work to be carried out, provided that the variance was not apparent from the Contract Drawings,

the Architect may fix an earlier Completion Date, though not earlier than the Completion Date stated in the Appendix, if it is fair and reasonable to do so.

# In light of the omission or reduction of work or obligations, the Architect can fix an earlier Completion Date but not earlier than the original contract Completion Date.#

# The Government General Conditions of Contract for Building Works 1999 Edition only permits the omission or reduction to be taken into account when granting further extension of time, but does not require the currently extended completion date be advanced. #

          (6)      If the Architect gives an extension of time to the Contractor under clause 25.3 because of a listed event that occurs in the period of delay after the Completion Date but before the Date of Substantial Completion, he shall add this extension of time to the total of any extensions of time previously granted when fixing a new Completion Date, even though the listed event may have occurred later than the date that the Architect fixes as the new Completion Date.

# If a listed event begins 10 weeks after the currently extended Completion Date and lasts for 1 week, the extension of time should be a net extension of 1 week instead of a gross extension of 11 weeks. The approach is called “dotting-on” or a “dot-on procedure”. This sub-clause (6) is introduced to reflect the court decision at Amalgamated Building Contractors v. Waltham Holy Cross (1952). #

          (7)      The Architect may fix a new Completion Date under clause 25 earlier or later than that previously fixed, during the period of delay between the Completion Date and the Date of Substantial Completion (if Substantial Completion takes place later than the Completion Date) if it is fair and reasonable to do so having regard to any of the listed events, whether by reviewing a previous decision, taking into account any further and better particulars that may be submitted by the Contractor, or by taking into account any extension of time granted under clause 25.3(6).

# The Architect may after the currently extended Completion Date but before the Date of Substantial Completion review his previous extension of time. He is entitled to fix an earlier or later date than previously fixed. #

# Fixing a later date may be due to some further evidence submitted by the Contractor or due to some new extension under sub-clause (6) or due to correction of the Architect’s errors in his previous extension of time. #

# Fixing an earlier date may be due to some new omission or reduction pursuant to sub-clause (5) or due to correction of the Architect’s errors in his previous extension of time. #

# The following is observed when the wording is analysed in greater detail:

  • “having regard to any of the listed events” – listed events would not cover the Architect’s errors or sub-clause (5)
  • “by reviewing a previous decision” – this may cover the Architect’s errors
  • “taking into account any further and better particulars that may be submitted by the Contractor” – the Contractor is unlikely to submit information with the intention of facing a reduction of extension of time
  • “taking into account any extension of time granted under clause 25.3(6)” – this is superfluous because sub-clause (6) itself is sufficient for an extension of time. #

# It then appears that this sub-clause does not cover clause 25.3(5) to give a chance to fix an earlier date. The remaining chance would be a correction of the Architect’s error. Fixing an earlier date for whatever reasons when the currently extended Completion Date has already passed will leave the Contractor with no chance to adopt any preventative or remedial measures. If the spirit of extension of time is to fix a future target date for the Contractor to meet, this reduction of extension of time previously fixed is not reasonable, especially when this is a result of the Architect’s errors. The words “earlier or” were added at the very final stage when the New Forms were put into print without being noticed by a lot of those people invited to give comments on the drafts, and this addition appears to be inappropriate. #

# If sub-clause (7) does not cover sub-clause (5), sub-clause (7) does not appear to be really necessary if the words “within 90 days” in sub-clause (8) is changed to “not later than 90 days” whereby a review of extension of time can be made any time. #

          (8)      The Architect shall finally decide the overall extension of time, if any, that he considers the Contractor is entitled to under clause 25, whether by reviewing any extension of time previously granted or otherwise, and shall fix the Completion Date, which may be the same as but not earlier than the Completion Date previously fixed, within 90 days after Substantial Completion or such later date as may be agreed by the parties.

# This sub-clause does not permit fixing an earlier Completion Date. “or otherwise” is of unlimited scope. “such later date as may be agreed” would leave the 90 days’ restriction open, unless the Architect stands firm and the Employer accepts the possibility of resorting to dispute resolution. # (revised 9 April 2017)

# How final is "finally decide" is also a question. Can the Architect make a final review and adjustment more than once? This sub-clause does not permit fixing an earlier Completion Date. The Contractor obviously would obviously request for a further review if he does not agree with the Architect's "final" review, and would also not disagree if the Architect wants to review on his own initiative. It would appear that "finally decide" may have application only between the Employer and the Architect when the Employer disputes that the Architect has the power to have a second final review. Normally, to and fro negotiation between the Architect and the Contractor would continue until agreement or dispute resolution is resorted to. It appears that between sub-clause (7) and (8), there is no room for this negotiation. How can the Architect be conformtable to review without the fear of being challenged by the Employer?  The meaning of “or otherwise” is not certain and should be of unlimited scope. "within 90 days after Substantial Completion" would have strength only if the Architect stands firm and the Employer accepts the possibility of resorting to dispute resolution. #

Contractor’s default involved in the delay

25.4     Where and to the extent that a listed event resulting in delay to the completion of the Works or a Section beyond the Completion Date was, in the Architect’s opinion, contributed to, or aggravated by a breach of contract or other default by the Contractor or any person for whom the Contractor is responsible, the Architect shall take the effects of that contribution or aggravation into account in fixing the new Completion Date.

# This clause is not talking about the Contractor’s concurrent delay such. It is talking about the Contractor’s contribution to the extent of the delay caused by a listed event. # (revised 9 April 2017)

# This clause is not talking about the Contractor’s concurrent delay. It is talking about the Contractor’s contribution to the extent of the delay caused by a listed event. #

Rate of progress

25.5    (1)      If, in the Architect’s opinion, the rate of progress of the Works is, at any time, too slow to ensure that the Works will be completed by the Completion Date for any reason which does not entitle the Contractor to an extension of time under clause 25.3, the Architect may notify the Contractor accordingly.

          (2)      After receiving the Architect’s notification, the Contractor may, at his own discretion and with no entitlement to receive additional payment, take the measures that he considers necessary to expedite the progress to complete the Works by the Completion Date.

# The Contractor is obliged to accelerate at his own costs to catch up his own delays. Compare with clause 25.1(4). #

Nominated Sub-Contractors and Suppliers to be kept informed

25.6    (1)      Where the first notice includes a reference to work carried out by a Nominated Sub-Contractor or materials or goods supplied by a Nominated Supplier, the Contractor shall give a copy of the first and second notices to the Nominated Sub-Contractor or Nominated Supplier.

          (2)      The Architect shall notify each Nominated Sub-Contractor and Nominated Supplier of any new Completion Date fixed under clause 25.3.

# This is important so as not to keep the Nominated Sub-Contractors and Suppliers in the dark. #

26  Delay recovery measures

# Entirely new clause added, probably to address the criticism that the Old Forms did not authorise the Architect to unilaterally instruct for acceleration to catch up delays for which the Employer is responsible. With the Old Forms, such acceleration would need an agreement between both parties. #

Delay recovery measures

26.1    Where the Architect considers that the Contractor would, by carrying out delay recovery measures (referred to in clause 26 as “the measures”), be able to extinguish, or significantly reduce, any extension of time which the Contractor would otherwise be entitled to under clause 25, the Architect shall, after receiving written directions from the Employer, state the saving in time that he wants the Contractor to achieve and instruct the Contractor to submit within 14 days:

# This clause covers reduction of the delays eligible for extension of time only and does not cover acceleration to shorten the original contract period. This may be the reason for using the expression "delay recovery measures" not "acceleration". #

(a)      a description of the proposed measures necessary to achieve the saving required by the Architect and a detailed quotation for carrying out those measures with full supporting particulars;

(b)      the Contractor’s own estimate of the saving in time that could be achieved by carrying out the measures if the Contractor has reservations about achieving the saving in time requested by the Architect; and

(c)      details of any other terms and conditions required by the Contractor in consideration for agreeing to carry out the measures.

# The terms and conditions should cover payment terms, implications on the Completion Dates and Rates of Liquidated and Ascertained Damages, implications if agreed proposals cannot achieve the targets fully or partially, etc. #

Delay recovery proposals

26.2    (1)      The description of the proposed measures, the quotation, the Contractor’s own estimate of the saving in time that could be achieved, if appropriate, and the details of the other terms and conditions referred to in clause 26.1 shall be referred to in clause 26 as the “delay recovery proposals”.

          (2)      Within 14 days of receiving the delay recovery proposals, the Architect shall notify the Contractor in writing that either the delay recovery proposals are agreed, or disagreed, or that he wishes to discuss and agree revised proposals with the Contractor.

# It would appear that a proposal would lapse if there is no response from the Architect within the 14 days unless the proposal states a different validity period. #

Contractor to carry out delay recovery measures

26.3    (1)      If the Architect agrees with the Contractor’s delay recovery proposals, or the revised delay recovery proposals resulting from the discussions under clause 26.2(2), and, after receiving written directions from the Employer, instructs the Contractor to carry out the measures in accordance with the agreement, the Contractor shall carry out the measures in accordance with the Architect’s instructions and shall be paid for carrying them out in accordance with the terms of the agreement.

# It would appear that any proposal would need to go through some kind of discussions and adjustments since it is unlikely that the first proposal would be accepted immediately. Therefore, it would not be a simple offer and acceptance transaction. To avoid doubt, the terms of the agreement should be properly written and documented. #

          (2)      If the Architect and the Contractor cannot reach agreement on the Contractor’s delay recovery proposals within 14 days of the Architect’s notice to discuss them under clause 26.2(2), the Architect may, after receiving written directions from the Employer, instruct the Contractor to carry out the measures in the absence of an agreement and the Contractor shall do so in accordance with the Architect’s instruction and:

# If both contract parties try to reach an agreement, the scope of the agreement can be very wide and not be restricted by the provision of this clause 26 and not be restricted to delay recovery measures. The situation would be similar to that under the Old Forms. The really useful part of clause 26 is this sub-clause (2) which authorises the Architect to issue instructions after the due process of request, proposal, and attempt to reach agreement has been done. It would appear that if the due process is not due, the Architect still cannot unilaterally instruct. #

(a)      the Contractor shall prepare and submit to the Quantity Surveyor all the information and documents relating to the cost of carrying out the measures that the Quantity Surveyor may reasonably require; and

(b)      the Quantity Surveyor shall ascertain the amount of additional payment to be made to the Contractor for carrying out the measures, based on the extra cost incurred by the Contractor with the addition of 15 percent for overheads and profit, within a reasonable time after receiving the information and documents under clause 26.3(2)(a).

# By restricting the overheads and profit to be 15 percent, the Contractor would not be able to gain the possible bigger rewards (e.g. built-in bonus) if he can achieve the proposal through mutual agreement. Incentive payments to workers should reasonably be treated as part of the costs. #

Extension of time to cover shortfall in recovering delay

26.4    If by carrying out the measures the Contractor reduces, but does not completely extinguish the delay to the completion of the Works or any Section for which the Contractor would have been entitled to an extension of time under clause 25 in the absence of the delay recovery proposals, then, subject to the terms of the agreement between the Architect and the Contractor under clause 26, the Contractor shall, nevertheless, be granted an extension of time for the duration of the unextinguished delay.

# This should apply only if there is no term to the contrary in the delay recovery agreement, because the agreement may say that with the additional price agreed, the Contractor will be committed to a new set of Completion Dates and Rates of Liquidated Damages. #

Contractor to be reimbursed for the cost of preparing the proposal if delay recovery not instructed

26.5    (1)      If the Architect and the Contractor do not reach an agreement about the terms of the Contractor’s delay recovery proposals and the Architect does not instruct the Contractor to carry out these proposals, then the Contractor shall be reimbursed for the cost of preparing the proposals.

# Unless the proposal involves major design effort, it does not appear that the cost of preparing the proposals would be significant and warrant a request for reimbursement. The Employer and the Architect may from time to time casually request the Contractor to give suggestions to accelerate the works to catch up delays which may be the Contractor's responsibility or the Employer's responsibility. It may also be difficult to isolate, justify and assess the cost so incurred by the Contractor in preparing the delay recovery proposal. It would therefore be advisable for the Contractor to ask whether a request is one under clause 26 if he feels that he would need to have the cost reimbursed. It may be even better if the fee or a waiver of the fee can be agreed in advance. #

          (2)      The Contractor shall submit to the Quantity Surveyor a statement of his costs with full supporting details and the Quantity Surveyor shall ascertain the amount of additional payment to be made as reimbursement to the Contractor.

27  Direct loss and/or expense

Contractor’s notice of claim for additional payment

27.1    (1)      If, in the Contractor’s opinion, he has incurred or is likely to incur direct loss and/or expense because the progress of the Works has been or is likely to be delayed or disrupted by an event set out in clause 27.1 (referred to in clause 27 as a “qualifying event”) and the Contractor intends to claim additional payment for this, he shall follow the procedures set out in clause 28 and shall also identify in his notice of claim which of the qualifying events he believes to be the cause of the direct loss and/or expense{:.}

# The Extension of Time clause refers to "delay to the completion of the Works or a Section". This clause refers to delay or disruptions to the progress of the Works (or a Section). #

# While an event can be an qualifying event and a listed event, it is not a condition precedent to have an extension of time before the Contractor is entitled to the monetary compensation under this clause, particularly when "disruption" is concerned. #

          (2)      The qualifying events are as follows:

(a)      an Architect's instruction under clause 2.4 to resolve an ambiguity, discrepancy in or divergence between the documents listed in that clause;

(b)      an Architect's instruction under clause 8.2 requiring the opening up for inspection of work covered up or the testing of materials, goods or work and the consequential making good where the cost of such opening up, testing and making good is required by that clause to be added to the Contract Sum;

(c)      an Architect's instruction under clause 13.1 requiring a Variation;

(d)      an Architect’s instruction under clause 13.2 resulting in an increase in the work to be carried out of sufficient magnitude to cause delay or disruption, provided that the variance was not apparent from the Contract Drawings;

(e)      an Architect's instruction under clause 23.3 regarding:

(i)      the postponement of the Date for Possession of < alternatively: the Date for Entering >  the Site or a part of the Site;

(ii)      the postponement of the Commencement Date of the whole or a part of the Works; or

(iii)      the postponement or suspension of the whole or a part of the Works, unless :

●        notice of the postponement or suspension is given in the Contract; or

●        the postponement or suspension was caused by a breach of contract or other default by the Contractor or any person for whom the Contractor is responsible;

(f)      compliance with clause 34.1 or with an Architect’s instruction under clause 34.2 requiring the Contractor to permit the examination, excavation or removal by a third party of an object of antiquity found on the Site;

(g)      late instructions from the Architect, including those to expend a Prime Cost Sum or a Provisional Sum, or the late issue of the drawings, details, descriptive schedules or other similar documents referred to in clause 5.6, except to the extent that the Contractor failed to comply with clause 5.7(2);

(h)      delay or disruption caused by a sub-contractor or supplier nominated by the Architect under clause 29.2(6) despite the Contractor’s valid objection, subject to clause 29.2(7);

(i)      delay or disruption caused by a Specialist Contractor;

(j)      the failure of the Employer to supply or supply on time materials, goods, plant or equipment that he agreed to provide for the Works;

(k)      the failure of the Employer to give possession of < alternatively: give entry to > the Site or, under clause 23.1(2), a part of the Site on the Date for Possession of < alternatively: the Date for Entering > the Site or the part of the Site stated in the Appendix, or subsequently the Employer depriving the Contractor of the whole or a part of the Site; and

(l)      any other delay or disruption for which the Employer is responsible including an act of prevention or a breach of contract.

# For an event which is both a listed event and an qualifying event, the same set of words have been used above, except for (h) and (i) where "delay or disruption" are used instead of "delay" only in clause 25.1(3) probably because this clause deals with delay and disruption while clause 25 deals with delay. If the key words are picked out to read, this clause deals with "delays and disruptions to the progress of the Works due to qualifying events" which can be expanded to read "delays and disruptions to the progress of the Works due to delay or disruption caused by" for (h) and (i). The corresponding key expression in clause 25 would read "delays to the completion of the Works due to delay caused by". Fine argument may suggest that clause 25 would not cover "delays to the completion of the Works due to disruption caused by", but this does not sound reasonable. #

Quantity Surveyor’s ascertainment of Contractor’s claim

27.2    (1)      Upon receipt of the Contractor’s claim under clause 27, the Architect shall instruct the Quantity Surveyor to ascertain the amount of any additional payment for direct loss and/or expense incurred by the Contractor if the Architect is satisfied that:

(a)      the direct loss and/or expense was incurred because the progress of the Works was delayed or disrupted by the qualifying event set out in the Contractor’s claim;

# Being a valid claim#

(b)      the Contractor has not been and will not be reimbursed by a payment under any other provisions of the Contract; and

# Not otherwise paid for#

(c)      the Contractor has complied with clause 28.

# Notice of claims timely submitted#

          (2)      The ascertainment of the Contractor’s claim shall be made as soon as practicable but in any case within 60 days of receipt of the build-up of the claim and the particulars submitted under clause 28.2(2)(a) to (d) or clause 28.2(2)(g), as the case may be.

# Unlike the Old Forms, the time to respond has been specified#

Contractor’s default involved in the delay or disruption

27.3    Where and to the extent that a qualifying event resulting in delay to the progress of the Works or disruption was, in the Architect’s opinion, contributed to or aggravated by a breach of contract or other default by the Contractor or any person for whom the Contractor is responsible, the Architect shall instruct the Quantity Surveyor to take such contribution or aggravation into account in ascertaining the amount of direct loss and/or expense due to the Contractor.

# Contribution or aggravation does not cover concurrent delays. This clause does not say that when there is a concurrent delay by the Contractor, the Contractor will lose his entitlement to monetary compensation -- a view held by a school of thought. To avoid being caught by that school of thought, any monetary claim should isolate itself from the effects of the Contractor's concurrent delays. #

Nominated Sub-Contractor’s claim for additional payment

27.4    (1)      The Contractor shall give the Architect a copy of a claim from a Nominated Sub-Contractor for additional payment for direct loss and/or expense under the Nominated Sub-Contract.

          (2)      The Architect shall instruct the Quantity Surveyor to ascertain, in accordance with the Nominated Sub-Contract, the amount of any additional payment for direct loss and/or expense incurred by the Nominated Sub-Contractor if the Architect is satisfied that:

(a)      the direct loss and/or expense was incurred because the progress of the Nominated Sub-Contract works was delayed or disrupted by the event, being an event that qualified the Nominated Sub-Contractor for direct loss and/or expense under the sub-contract, set out in the Nominated Sub-Contractor’s claim; and

# The list of events that qualify the Nominated Sub-Contractor for compensation may not be the same list in the Contract. This list may include some which are solely between the Contractor and the Nominated Sub-Contractor and do not involve the Employer. The Architect and the Quantity Surveyor may not like to step into that area. #

(b)      the Nominated Sub-Contractor has complied with all of the requirements of the Nominated Sub-Contract in respect of his claim.

          (3)      The ascertainment of the Nominated Sub-Contractor’s claim shall be made as soon as practicable but in any case within 60 days of the Nominated Sub-Contractor providing, through the Contractor, the submissions required by the Nominated Sub-Contract relating to the claim for additional payment for direct loss and/or expense. The amount ascertained shall be added to the sub-contract sum.

          (4)      An amount of additional payment for direct loss and/or expense incurred by the Nominated Sub-Contractor due to an act, omission or default of the Contractor shall be dealt with between the Contractor and the Nominated Sub-Contractor and shall not be added to the sub-contract sum.

# This sub-clause could mean that the negotiation should be left to the Contractor and the Nominated Sub-Contractor from the beginning or that the payment after the Quantity Surveyor's ascertainment is to be settled between the two. It appears that the sub-clause inclines towards the latter meaning. #

          {(5)      Sub-clauses (1) to (4) above equally apply to Nominated Suppliers and shall be read accordingly to give that effect.}

28  Notice of claims for additional payment

# As compared to the Old Forms, the requirements for and the time to submit have been specified in greater details#

Contractor to give notice of claim

28.1    (1)      If the Contractor intends to claim any additional payment under the Contract, the Contractor shall give notice to the Architect of his intention to do so:

(a)      within 28 days of it becoming apparent to the Contractor that an event has occurred which gives rise to a claim and he shall include in the notice the contractual provisions upon which the claim is based; or {whether earlier or later}

# "whether earlier or later" should preferably be inserted in the beginning of (b) below. Deleting the phrase does not appear to affect the meaning but would improve the reading. #

(b)      within 7 days after receipt of a claim for additional payment from a Nominated Sub-Contractor under clause 27.4.

          (2)      The Contractor need{s} not give the notice required under clause 28.1(1) in the case of an Architect’s instruction under clause{s} 13.1 or 13.2 insofar as that instruction is subject to a Valuation under clause 13.

# Clause 13.1 refers to Variations, and clause 13.2 refers to Provisional Quantities, Provisional Items and Provisional Sums. #

Contractor to submit particulars

28.2    (1)      The Contractor shall keep such records as may reasonably be necessary to support the claim.

          (2)      The Contractor shall as soon as practicable but in any case within 60 days of giving notice under clause 28.1, submit to the Architect:

(a)      particulars of the circumstances giving rise to the claim;

(b)      the amount of the claim;

(c)      a detailed build-up of that amount; and

(d)      a copy of the records kept in accordance with clause 28.2(1),

or, where the event giving rise to the claim has a continuing effect the Contractor shall:

(e)      give the Architect a statement to that effect together with:

(i)      interim particulars of the circumstances giving rise to the claim;

(ii)      an estimate of and build-up of the amount of the claim which shall be considered to be an interim amount; and,

(iii)      a copy of the records kept in accordance with clause 28.2(1);

(f)      make further submissions to the Architect at intervals not exceeding 28 days giving:

(i)      further interim particulars;

(ii)      up to date estimates of the amounts of the claim with further build-ups of these amounts; and

(iii)      further records to support the claim,

until it becomes possible to ascertain the total claim; and

(g)      within 14 days after it becomes possible to ascertain the total claim, make the final submission to the Architect as required under clause 28.2(2) paragraphs (a) to (d).

Condition precedent to Contractor’s entitlement to additional payment

28.3    It shall be a condition precedent to the Contractor’s entitlement to additional payment that the Contractor shall comply with the provisions of clauses 28.1 and 28.2 and if he fails to comply with these provisions in respect of any claim, that claim will be deemed to have been waived by the Contractor.

29  Nominated Sub-Contractors and Nominated Suppliers

Nomination of a sub-contractor or a supplier

29.1    (1)      Where a Prime Cost Sum for work to be carried out by a Nominated Sub-Contractor or for materials and goods to be supplied by a Nominated Supplier is included in the Contract Bills or arises as a result of:

(a)      an Architect’s instruction under clause 13.1 requiring a Variation for additional or substituted work;

(b)      an Architect’s instruction under clause 13.2 to expend a Provisional Sum; or

(c)      an agreement between the Contractor and the Architect on behalf of the Employer,

the Architect shall issue an instruction to nominate:

(d)      a sub-contractor to carry out the work provided for by the Prime Cost Sum and the Contractor shall enter into a sub-contract with that sub-contractor, who shall then become a Nominated Sub-Contractor, in accordance with the terms stipulated in the instruction; or

(e)      a supplier to supply the materials or goods provided for by the Prime Cost Sum and the Contractor shall enter into a supply contract with that supplier, who shall then become a Nominated Supplier, in accordance with the terms stipulated in the instruction.

          (2)      The term ‘Nominated Supplier’ shall not apply to a supplier of materials or goods which are specified in the Contract Bills to be incorporated into the Works unless the materials or goods are the subject of a Prime Cost Sum even if that supplier is the sole supplier of those materials or goods.

Contractor's right of reasonable objection

29.2    (1)      The Contractor shall not be required to enter into a sub-contract with a sub-contractor or supply contract with a supplier against whom the Contractor has made a reasonable objection because:

(a)      the sub-contractor or supplier has a poor safety record;

(b)      there are reasonable grounds for believing that the financial standing, solvency, technical competence or reliability of that sub-contractor or supplier is not such that a prudent contractor, having regard to the size and nature of the sub-contract works or supply contract, would be willing to employ as a Nominated Sub-Contractor or Nominated Supplier;

(c)      there are reasonable grounds for believing that the tender sum is not financially viable; or

(d)      the programme for carrying out the sub-contract works or for the delivery of the materials and goods is not compatible with the Contractor’s programme for the Works current at the time of the Contractor’s objection.

          (2)      Where the Contractor is notified of the tender list of sub-contractors and suppliers during the tender period, the Contractor shall, if he has an objection to a sub-contractor or supplier on the list, register his objection giving his reasons with his tender submission.

          (3)      Where the Contractor is notified of the tender list of sub-contractors and suppliers after the award of the Contract, the Contractor shall, if he has an objection to a sub-contractor or supplier on the list, register his objection giving his reasons within 14 days of being notified of the list of tenderers or, if a sub-contractor or supplier who is not on this list is nominated, within 14 days of receipt of the nomination instruction.

          (4)      If the Contractor made his objection to the inclusion of a sub-contractor or supplier on the tender list in his tender submission or within the time required under clause 29.2(3) and the Architect considers the objection to be valid, the Architect shall either:

(a)      withdraw the sub-contractor’s or supplier’s name from the tender list; or

(b)      refuse to withdraw the sub-contractor’s or supplier’s name from the tender list and notify the Contractor accordingly.

          (5)      If the Contractor made his objection to the nomination of the sub-contractor or supplier within the time required under clause 29.2(3), and the Architect considers the objection to be valid, the Architect shall either:

(a)      withdraw the nomination instruction and:

(i)      issue a further instruction nominating another sub-contractor or supplier; or

(ii)      instruct the Contractor to carry out the work himself or supply the materials or goods himself through a supplier approved by the Architect in which case the instruction shall have the same effect as an instruction to expend a Provisional Sum under clause 13.2; or

(b)      refuse to withdraw the nomination instruction and notify the Contractor accordingly.

          (6)      Where the Architect, notwithstanding his acceptance of the validity of the Contractor’s objection, either refuses to withdraw the sub-contractor’s or supplier’s name from the tender list and subsequently nominates that sub-contractor or supplier, or refuses to withdraw the nomination instruction, the Contractor shall enter into a sub-contract with that sub-contractor or a supply contract with that supplier.

          (7)      If during the carrying out of the sub-contract or the supply contract, the Contractor believes that the sub-contractor or supplier nominated under clause 29.2(6) has caused delay or disruption to the carrying out of the Works, he may apply for an extension of time under clause 25.1(3)(n) and/or additional payment for direct loss and/or expense under clause 27.1(h) but only to the extent that the delay or disruption was attributable to the grounds for objection raised by the Contractor to the nomination of the sub-contractor or supplier.

Sub-contractor and supplier warranty to Employer

29.3    If it is stated in the {Contract sub-contract or supply contract tender documents} that the Employer will require a Nominated Sub-Contractor or Nominated Supplier to enter into a sub-contractor or supplier warranty agreement with the Employer {in consideration of the Employer’s nomination}, the Contractor shall, before entering into a sub-contract or supply contract with that Nominated Sub-Contractor or Nominated Supplier, ensure that the Nominated Sub-Contractor or Nominated Supplier has given the sub-contractor or supplier warranty agreement to the Employer in the form  set out in the {ContractBills or the Specification or, if not set out in either which?of those documents, in the form set out in Schedules 2 and 3 of the Conditions sub-contract or supply contract tender documents}.

Contractor's tender for work provided for by a Prime Cost Sum

29.4    If the Contractor obtains permission from the Architect to tender for work provided for by a Prime Cost Sum that falls within the ordinary course of the Contractor’s business and his tender is accepted, it shall be treated as a Variation instructed under clause 13.1 and the provisions of clause 29 shall not apply but the limit of Retention stated in the Appendix shall be increased correspondingly.

Nomination using the standard conditions

29.5    (1)      The Contractor shall enter into each sub-contract and supply contract using the Standard Conditions of Nominated Sub-Contract or the Standard Conditions of Nominated Supply Contract, unless otherwise instructed by the Architect.

          (2)      If the Architect instructs the Contractor to enter into a sub-contract or supply contract using either amended standard conditions or conditions that are different from the standard conditions, then, unless the Contractor was advised of this requirement with a copy of the required sub-contract conditions or supply contract conditions before submitting his tender, the Architect shall issue an instruction requiring a Variation in respect of the differences between the two sets of sub-contract conditions or supply contract conditions.

Contractor’s responsibility for Nominated Sub-Contractors and Nominated Suppliers

29.6    The Contractor shall be responsible for all Nominated Sub-Contractors and Nominated Suppliers and for all work, other than design work, carried out and materials and goods supplied by them, and shall remain responsible for carrying out and completing the Works in accordance with the Contract notwithstanding the nomination of sub-contractors to carry out work or suppliers to supply materials and goods.

Quantity Surveyor’s notification of interim payments

29.7    (1)      The Quantity Surveyor shall for each Interim Certificate:

(a)      calculate the amount owing to each Nominated Sub-Contractor and Nominated Supplier in accordance with the sub-contract and supply contract;

(b)      notify the Contractor of the amount included in the Interim Certificate for each Nominated Sub-Contractor and Nominated Supplier; and

(c)      notify each Nominated Sub-Contractor and Nominated Supplier, at the time the Interim Certificate is issued, of the amount of the interim payment included for that sub-contractor and supplier in the Interim Certificate and the amount of Retention held by the Employer.

          (2)      The Contractor shall pay each Nominated Sub-Contractor and Nominated Supplier the amount included for that Nominated Sub-Contractor or Nominated Supplier in the Interim Certificate, less any amount properly deductible by the Contractor, within 14 days, or such other time as may be stated in the sub-contract or supply contract, of the Contractor receiving payment or the accounting of payment from the Employer, as the case may be.

          (3)      The Contractor shall keep proper and detailed accounts and records of all payments to Nominated Sub-Contractors and Nominated Suppliers and shall make them available for inspection by the Architect.

Direct payment of Nominated Sub-Contractors and Nominated Suppliers

29.8    (1)      The Contractor shall, before an Interim Certificate is issued to him, if required by the Architect, provide the Architect with reasonable proof that he has paid each Nominated Sub-Contractor and Nominated Supplier the amount included for that sub-contractor or supplier in any previous Interim Certificate.

          (2)      The Contractor may withhold an amount from the payment included in an Interim Certificate for a Nominated Sub-Contractor or Nominated Supplier if he provides sufficient substantiation to satisfy the Architect that:

(a)      he has good cause for doing so; and

(b)      he has informed the Nominated Sub-Contractor or Nominated Supplier of his reasons for withholding that amount before doing so.

          (3)      If the Contractor withholds an amount due to a Nominated Sub-Contractor or Nominated Supplier and fails to satisfy the requirements under clause 29.8(2), the Architect shall issue a certificate to this effect stating the amount withheld, and the Employer shall be entitled to pay this amount to the Nominated Sub-Contractor or Nominated Supplier direct and deduct it from any sum due or to become due to the Contractor.

          (4)      Neither the existence nor the exercise of the Employer’s power under clause 29.8(3) shall make him liable to pay a Nominated Sub-Contractor or Nominated Supplier direct.

Extension of time for completion of Nominated Sub-Contract works or delivery of Nominated Supply Contract goods

29.9    Where a Nominated Sub-Contractor claims an extension of time for the completion of the sub-contract works or a Nominated Supplier claims an extension of time for the supply of the supply contract goods, the Contractor shall make his assessment of the extension of time, if any, that he believes to be fair and reasonable in accordance with the provisions of the Nominated Sub-Contract or Nominated Supply Contract and he shall obtain the Architect’s consent before he grants an extension of time to the Nominated Sub-Contractor or Nominated Supplier.

Substantial completion of Nominated Sub-Contract works

29.10  (1)      Where a Nominated Sub-Contract requires the sub-contract works to be completed by a specified date, the Architect shall, if he is satisfied that those works have been substantially completed, issue a certificate to the Contractor to that effect with a copy to the Nominated Sub-Contractor.

          (2)      Where clause 18 applies, Substantial Completion of the sub-contract works in a Relevant Part shall be deemed to have occurred on the Relevant Date.

          (3)      Where a Nominated Sub-Contract requires the sub-contract works to be carried out at the same time as the Works with no separate completion date specified, those works shall be deemed to have been substantially completed on the day stated in the Substantial Completion Certificate for the Works and the Architect shall issue a copy of this certificate to each Nominated Sub-Contractor.

Architect to certify Nominated Sub-Contractor’s failure to complete on time

29.11  (1)      Where a Nominated Sub-Contract requires the sub-contract works to be completed by a specified date and the Nominated Sub-Contractor fails to complete the sub-contract works by that date, or within any extension of time given to him, the Contractor shall notify the Architect of this and issue a copy of the notification to the Nominated Sub-Contractor.

          (2)      If in the Architect’s opinion the Nominated Sub-Contractor has failed to complete the sub-contract works on time, the Architect shall issue a certificate to the Contractor to that effect in the form required by the sub-contract within 28 days of the Contractor’s notification under clause 29.11(1), provided that the Architect is satisfied that the Contractor has followed the provisions of clause 29.9, and shall issue a copy of his certificate to the Nominated Sub-Contractor.

Early final payment to Nominated Sub-Contractor or Nominated Supplier

29.12  (1)      The Architect may include the amount of the final payment to a Nominated Sub-Contractor or Nominated Supplier in an Interim Certificate if:

(a)      the sub-contract works have been completed in accordance with the sub-contract or the supply of goods has been completed in accordance with the supply contract;

(b)      the Architect and the Contractor are satisfied that the Nominated Sub-Contractor or Nominated Supplier has remedied all defects which have appeared and which the Nominated Sub-Contractor or Nominated Supplier has to remedy under the sub-contract or supply contract; and

(c)      the Nominated Sub-Contractor or Nominated Supplier has indemnified the Contractor to the Contractor’s reasonable satisfaction against any other defects that may appear and against any omissions or faults in the sub-contract works or Goods caused by the Nominated Sub-Contractor or Nominated Supplier for which the Contractor may become liable to the Employer.

          (2)      The Contractor shall pay the Nominated Sub-Contractor or Nominated Supplier the amount included for him in the Interim Certificate, less any amount properly deductible by the Contractor, within 14 days, or such other time as may be stated in the sub-contract, of the Contractor receiving payment【or the accounting of payment】from the Employer 【, as the case may be】.

          (3)      Upon final payment to the Nominated Sub-Contractor or the Nominated Supplier:

(a)      the Limit of Retention stated in the Appendix shall be reduced by the amount of retention in respect of the sub-contract or supply contract; and

(b)      the Contractor shall be discharged from any further liability for rectifying defects or other faults in the sub-contract works or the goods during the Defects Liability Period except for any defects not apparent at the time that the final payment was made.

          (4)      Notwithstanding the final payment to a Nominated Sub-Contractor or Nominated Supplier for the sub-contract works or the supply of goods, the Contractor shall remain responsible for loss or damage to the whole of the Works including those sub-contract works and the goods supplied and either clause 22A, 22B or 22C, whichever is applicable, shall remain in full force and effect.

Re-nomination

29.13  (1)      If the employment of a Nominated Sub-Contractor is determined or a supply contract is terminated for any reason, the Architect, as soon as practicable, shall nominate a replacement sub-contractor or supplier to complete the work sub-contracted to the original Nominated Sub-Contractor or to supply the materials and goods, or the equivalent of the materials or goods, that were to have been supplied by the original Nominated Supplier, and the Contractor shall immediately enter into a sub-contract or supply contract with the replacement sub-contractor or supplier.

          (2)      {If the employment of the original Nominated Sub-Contractor was determined or the original supply contract was terminated for any reason other than a breach of contract or other default by the Contractor or any person for whom the Contractor is responsible other than the original sub-contractor or supplier, then any increase in cost between the original and the new sub-contract sum or supply contract sum shall be added to the Contract Sum. The replacement sub-contract or supply contract shall be taken into account in the computation of payment valuations and final account under clause 32.}

          (3)      If the employment of a Nominated Sub-Contractor was validly determined by the original Nominated Sub-Contractor or the supply contract was validly terminated by the original Nominated Supplier because of a breach of contract or other default by the Contractor or any person for whom the Contractor is responsible other than the original sub-contractor or supplier, then any {increase in cost between the original and the new sub-contract sum or supply contract sum  shall be at the Contractor’s expense and shall not be added to the Contract Sum. extra costs incurred by the Employer in connection with the determination, termination and replacement shall be deducted from the Contract Sum, In other cases, the Contractor shall hold the original Nominated Sub-Contractor or Supplier responsible for the extra costs incurred by the Employer in connection with the determination, termination and replacement, assist to recover the extra costs, and reimburse to the Employer in preference to himself any sum which may actually be recovered from the original Nominated Sub-Contractor or Supplier after defraying any legal costs incurred in pursuing the recovery.}

          (4)      The provisions of clauses 29.13(1), 29.13(2) and 29.13(3) shall also apply in the event of the determination of the employment of a replacement sub-contractor or the termination of a supply contract with a replacement supplier.

          (5)      The Contractor shall have the same right of reasonable objection to the nomination of a replacement Nominated Sub-Contractor or a replacement Nominated Supplier as he had under clause 29.2 to the nomination of the original Nominated Sub-Contractor or Nominated Supplier, and provided that the Contractor registers his objection giving his reasons within 14 days of the nomination of a replacement Nominated Sub-Contractor or replacement Nominated Supplier, the provisions of clause 29.2, where appropriate, shall apply.

Architect’s consent

29.14  The Contractor shall not determine the employment of a Nominated Sub-Contractor or terminate a supply contract with a Nominated Supplier without the Architect’s consent.

Employer not liable to a Nominated Sub-Contractor or Nominated Supplier

29.15  Neither the existence nor the exercise of the Employer’s powers under clause 29 nor anything else contained in these Conditions shall make him liable to a Nominated Sub-Contractor or Nominated Supplier.

30  Persons engaged by Employer

Persons for whom the Employer is responsible

30.1    The following persons shall be deemed to be persons for whom the Employer is responsible:

(a)      a Specialist Contractor who, under Clause 6.4(3), shall include a statutory undertaker or utility company engaged by the Employer to carry out work;

(b)      a person engaged by the Employer under clause 4.3(3); and

(c)      a person referred to as a third party under clause 34.2.

Access to the Site and permission to carry out work

30.2    (1)      Where the Contract Bills identify and give a general description of work not forming part of the Contract which is to be carried out by a Specialist Contractor, the Contractor shall allow the Specialist Contractor reasonable access to the Site and permit him to carry out his work.

          (2)      Where the Contract Bills do not provide the information referred to in clause 30.2(1), the Contractor shall still allow the Specialist Contractor reasonable access to the Site and permit him to carry out his work on the condition that if the Contractor incurs additional costs by doing so he may submit a detailed claim with supporting particulars to the Architect for reimbursement of these costs. If the Architect is satisfied that the Contractor has incurred additional costs, the Architect shall instruct the Quantity Surveyor to ascertain the amount of additional payment to be made.

          (3)      The Contractor shall allow persons engaged by the Employer under clause 4.3(3) reasonable access to the Site and permit them to carry out their work without hindrance as provided in clause 4.3(4).

          (4)      The Contractor shall allow a person referred to as a third party under clause 34.2 reasonable access to the Site and permit him to examine, excavate or remove an object of antiquity upon an instruction from the Architect to do so under that clause.

Contractor to fulfil his obligations to persons engaged by the Employer.

30.3    The Contractor shall at all times fulfil his obligations under clause 2.1 to persons engaged by the Employer.

31  Facilities for statutory undertakers and utility companies

Access to site and facilities to carry out work

          The Contractor shall allow statutory undertakers or utility companies referred to in clause 6.4(1) reasonable access to the Site as provided for in clause 6.4(2) and shall give them the facilities set out in the Contract 【Bills】 to enable them to carry out work not forming part of the Works on or adjacent to the Site.

32  Certificates and payments

Interim Certificates and interim valuations

32.1    (1)      The Architect shall issue an Interim Certificate at the end of each Period of Interim Certificates stated in the Appendix commencing not later than 42 days after the Commencement Date.

          (2)      The Interim Certificate shall state the amount due to the Contractor from the Employer and the Employer shall pay that amount to the Contractor, less any monies deductible by the Employer under clause 32.1(6), within the period for payment of certificates stated in the Appendix.

          (3)      After the issue of the Substantial Completion Certificate for the whole of the Works, Interim Certificates shall only be issued when further amounts are, in the Quantity Surveyor’s opinion, due to the Contractor.

          (4)      The Contractor shall submit to the Quantity Surveyor, at least 14 days before the date on which an Interim Certificate is due to be issued, a statement setting out the Contractor’s estimate of the gross valuation of the work in progress including:

(a)      the amount estimated for each of the items referred to in clause 32.2(3);

(b)      a priced list of the materials and goods either delivered to or adjacent to the Site or stored off-site and to be included in the Interim Certificate under clause 32.3;

(c)      all the accounts, vouchers, receipts and other documents that may reasonably be required by the Quantity Surveyor; and

(d)      the statements, accounts, vouchers, receipts and other documents submitted to him by the Nominated Sub-Contractors and Nominated Suppliers in accordance with their sub-contracts or supply contracts.

          (5)      The Quantity Surveyor shall make an interim valuation of the work in progress in accordance with clause 32.2 to determine the estimated amount due in an Interim Certificate and shall submit his valuation to the Architect at least 7 days before the Interim Certificate is due to be issued.

          (6)      The Employer may make any deduction authorised by the Contract from the amount due to the Contractor under an Interim Certificate, whether or not any Retention is included in that Interim Certificate, provided that he gives a notice to the Contractor by special delivery stating the amount of the deduction, a build-up of that amount and the reason for it at least 7 days before making the deduction.

Estimate of amount due in Interim Certificate

32.2    (1)      The amount due in an Interim Certificate, subject to any agreement between the parties as to stage payments, shall be the estimated gross valuation of the work in progress as referred to in clause 32.2(2) less:

(a)      the Retention; and

(b)      the total amount stated as due in each Interim Certificate previously issued.

          (2)      The estimated gross valuation of the work in progress shall be the total of the amounts listed in clause 32.2(3) less the total of the amounts listed in clause 32.2(4).

          (3)      The following estimated amounts shall be included in the gross valuation:

(a)      the value of the permanent work properly carried out including any additional work or obligation instructed as a Variation to the extent that this additional work or obligation has been completed or fulfilled in whole or in part;

(b)      the proportion of the value of temporary works properly carried out where their value is included as a separate sum in the 【Contract Bills】『Schedule of Quantities and Rates』;

(c)      the proportion of the value of a preliminary item properly provided or carried out by the Contractor where its value is included as a separate sum in the 【Contract Bills】『Schedule of Quantities and Rates』;

(d)      the value of materials or goods on or adjacent to the Site provided that:

          (i)      they are to be incorporated into the permanent Works;

          (ii)      they have not been prematurely delivered; and

          (iii)      they are adequately protected against weather, other damage or theft 【;】{.;}

(e)      the value of materials or goods to be incorporated into the permanent Works before they are delivered to or adjacent to the Site and to be included in an Interim Certificate under clause 32.3;

(f)      the amounts payable for work carried out by Nominated Sub-Contractors in accordance with the sub-contracts;

(g)      the amount payable in respect of a Contractor’s tender accepted under clause 29.4 for work provided for by a Prime Cost Sum;

(h)      the amounts payable for materials or goods supplied by Nominated Suppliers in accordance with the supply contracts;

(i)      the appropriate proportion of the sums included as separate items in the 【Contract Bills】『Schedule of Quantities and Rates』 for:

(i)      profit on the amounts payable to Nominated Sub-Contractors and Nominated Suppliers; and

(ii)      attendance upon Nominated Sub-Contractors;

(j)      the payments made and costs incurred for:

(i)      statutory fees and charges under clause 6.3;

(ii)      opening up and testing materials, goods or work under clause 8.2; or

(iii)      effecting and maintaining insurances resulting from the Employer’s failure to insure under clause 22B.2(2) or 22C.3(2);

(k)      the amount ascertained as additional payment for direct loss and/or expense under clause 27.2;

(l)      the amount payable for reimbursement for increases in the costs of labour and/or materials under clause 38 if applicable; and

(m)      any other amount which is required by the Contract to be added to the Contract Sum.

          (4)      Without prejudice to the Employer’s right of set off, the following estimated amounts shall be deducted from the gross valuation:

(a)      the amounts deductible in lieu of:

(i)      correction of errors in setting out the Works under clause 7(2);

(ii)      replacement or reconstruction of materials, goods or work under clause 8.3(c); and

(iii)      rectifying defects under clause 17.3(5);

(b)      the amount allowable to the Employer for decreases in the costs of labour and/or materials under clause 38 if applicable; and

(c)      any other amount which is required by the Contract to be deducted from the Contract Sum.

Off-site materials or goods

32.3    The Architect may, at his discretion or where expressly provided in the Contract, include the value of materials or goods intended for inclusion in the Works in an Interim Certificate before the materials or goods are delivered to or adjacent to the Site {provided the materials and goods have been clearly and visibly marked to identify that  they are for use upon the Works only and have been properly insured for the benefit of the Employer against physical loss or damage until delivery to the Site} and if this is the case he shall instruct the Quantity Surveyor to estimate the value of these materials or goods for inclusion in the Quantity Surveyor’s interim valuation of the work in progress under clause 32.1(5).

Calculation of Retention

32.4    (1)      The Retention on the payment for the Contractor’s work in progress shall be calculated by applying the percentage stated in the Appendix as the Retention Percentage to the estimated gross valuation referred to in clause 32.2 exclusive of the amounts payable:

(a)      under clause 27;

(b)      for work carried out by Nominated Sub-Contractors;

(c)      for materials or goods supplied by Nominated Suppliers; and

(d)      for any adjustment for fluctuations in the costs of labour or materials under clause 38.

          (2)      The amount held as the Retention shall not exceed the amount stated in the Appendix as the Limit of Retention, as may be increased or reduced in accordance with the Contract. Once the Limit of Retention has been reached no further amounts shall be retained.

          (3)      The retention on the payment for the Nominated Sub-Contractor’s work in progress and the Nominated Supplier’s supply of materials or goods shall be calculated in accordance with the sub-contract or the supply contract, as the case may be{,} and added to the Retention held on the payment for the Contractor’s work.

Retention Rules

32.5    (1)      The Retention shall be held upon trust by the Employer for the Contractor and for any Nominated Sub-Contractor or Nominated Supplier (without obligation to invest) subject to the rights of the Employer to have recourse to it for payment of any amount which he is entitled to under the Contract or at law or to deduct from it any sum owed to him by the Contractor, provided that the Employer gives notice to the Contractor in accordance with clause 32.1(6).

          (2)      The Architect shall issue an Interim Certificate for the payment of one-half of the Retention held in respect of the whole of the Works, a Section or a Relevant Part, as the case may be, 14 days after Substantial Completion of the whole of the Works, that Section or Relevant Part.

          (3)      The amount of the Retention held in respect of a Section or Relevant Part shall be deemed to bear the same relationship to the Retention held for the whole of the Works as the estimated amount contained in the Contract Sum for that Section or Relevant Part bears to the Contract Sum.

          (4)      The Architect shall issue an Interim Certificate for payment of {all the} remaining Retention {held in respect of the whole of the Works, a Section or a Relevant part, as the case may be,} within 14 days after the issue of the Defects Rectification Certificate for the whole of the Works{, that Section or Relevant Part} under clause 17.4 or 17.5.

        {(5)      The retention referred to in clauses 32.5(2) to (4) shall mean that calculated in accordance with clauses 32.4(1) and (2). The retention referred to in clause 32.4(3) shall be dealt with in similar fashion unless otherwise specified in the sub-contract or supply contract.}

Quantity Surveyor to prepare final account

32.6    (1)      The Quantity Surveyor shall prepare the final account, which is a statement of all adjustments to be made to the Contract Sum as set out in clause 32.7, within the period for completion of the final account stated in the Appendix commencing on the date of the Substantial Completion of the whole of the Works.

          (2)      The Quantity Surveyor shall send draft copies of the final account to the Contractor and the relevant extracts to each Nominated Sub-Contractor or Nominated Supplier from time to time as the preparation of the final account progresses.

          (3)      The Contractor shall submit to the Quantity Surveyor all the documents that are, in the opinion of the Quantity Surveyor, reasonably necessary for the adjustment of the Contract Sum, including those relating to the accounts of Nominated Sub-Contractors and Nominated Suppliers, not later than 6 months after Substantial Completion of the whole of the Works or 3 months before the end of the period for the completion of the final account, whichever is earlier.

          (4)      The submission of the documents referred to in clause 32.6(3) shall not be a condition precedent to the Quantity Surveyor preparing the final account, and, if the Contractor fails to comply with that clause, the Quantity Surveyor shall prepare the final account based on the information that is available to him.

          (5)      The Architect shall issue a copy of the final account signed by the Quantity Surveyor and the Contractor to each of the parties by special delivery.

Adjustment of the Contract Sum

32.7    (1)      The Contract Sum shall be adjusted as described in clauses 32.7(2) and (3).

          (2)      The following amounts shall be deducted from the Contract Sum:

(a)      all Prime Cost Sums for work to be carried out by Nominated Sub-Contractors and any Contractor's profit and attendance priced in the 【Contract Bills】Schedule of Quantities and Rates as separate items on these sums included in the 【Contract Bills】『Schedule of Quantities and Rates』;

(b)      all Prime Cost Sums for materials or goods to be supplied by Nominated Suppliers and any Contractor's profit priced in the 【Contract Bills】『Schedule of Quantities and Rates』 as separate items on these sums included in the 【Contract Bills】『Schedule of Quantities and Rates』;

(c)      all Provisional Sums and the value of all work for which Provisional Quantities or Provisional Items are included in the 【Contract Bills】Schedule of Quantities and Rates;

(d)      the total of all Valuations under clause 13.4 which result{s} in a reduction in the Contract Sum;

(e)      the amounts deductible in lieu of:

(i)      correction of errors in setting out the Works under clause 7(2);

(ii)      replacement or reconstruction of materials, goods or work under clause 8.3(c); and

(iii)      rectifying defects under clause 17.3(5);

(f)      the amount allowable to the Employer for decreases in the cost of labour and/or materials under clause 38 if applicable; and

(g)      any other amount which is required by the Contract to be deducted from the Contract Sum.

(3)      The following amounts shall be added to the Contract Sum:

(a)      the sub-contract sums for each Nominated Sub-Contractor as adjusted in accordance with the sub-contract;

(b)      the Contractor’s tender sum accepted under clause 29.4 for work provided for by a Prime Cost Sum as adjusted in accordance with the terms of the tender;

(c)      the supply contract sums for materials or goods supplied by each Nominated Supplier as adjusted in accordance with the supply contract;

(d)      the Contractor’s profit upon the Nominated Sub-Contract sums and on the sums payable to Nominated Suppliers under clauses 32.7(3)(a) and 32.7(3)(c) at the rates included in the 【Contract Bills】『Schedule of Quantities and Rates』 or in the case where the nomination arises from either:

          (i)      an instruction as to the expenditure of a Provisional Sum;

          (ii)      an instruction requiring a Variation for additional or substituted work; or

          (iii)      by agreement between the Architect and the Contractor,

at appropriate rates in the 【Contract Bills】『Schedule of Quantities and Rates』 or, if none, at fair rates;

(e)      the sums payable to the Contractor for attendance upon each Nominated Sub-Contractor, provided that the Nominated Sub-Contract sum has been added to the Contract Sum under clause 32.7(3)(a), calculated as follows:

(i)      if the Prime Cost Sum is included in the 【Contract Bills】{Schedule of Quantities and Rates Contract}, the sum payable for attendance shall be the price entered in the 【Contract Bills】{Schedule of Quantities and Rates Contract}as a separate item whether or not the Nominated Sub-Contract sum is greater or less than the Prime Cost Sum {except when the Prime Cost Sum is not used at all}; or

(ii)      if the Prime Cost Sum arose either from an instruction for the expenditure of a Provisional Sum, an instruction requiring a Variation or by agreement between the Architect and Contractor, the sum payable shall be based upon appropriate rates in the 【Contract Bills】『Schedule of Quantities and Rates』, or shall be a reasonable sum;

(f)      the total of all Valuations under clause 13.4 which results in an increase in the Contract Sum;

(g)      the total of the Valuation of work carried out by and any amount paid by the Contractor in accordance with the instructions of the Architect as to the expenditure of a Provisional Sum and of all work for which Provisional Quantities and Provisional Items are included in the 【Contract Bills】『Schedule of Quantities and Rates』;

(h)      the payments made and costs incurred for:

(i)      statutory fees and charges under clause 6.3;

(ii)      opening up and testing materials, goods or work under clause 8.2; and

(iii)      effecting and maintaining insurances resulting from the Employer’s failure to insure under clauses 22B.2(2) or 22C.3(2);

(i)      the amount ascertained as additional payment for direct loss and/or expense under clause 27.2;

(j)      the amount payable for reimbursement for increases in the costs of labour and/or materials under clause 38, if applicable; and

(k)      any other amount which is required by the Contract to be added to the Contract Sum.

Issue of Final Certificate

32.8    (1)      The Architect shall issue the Final Certificate to each of the parties by special delivery as soon as practicable after the issue of the Defects Rectification Certificate for the whole of the Works {provided that the Final Certificate shall not be issued until at least 28 days and} after a copy of the signed final account has been given to each of the parties under clause 32.6(5).

          (2)      At the same time as the Architect issues the Final Certificate, he shall notify each Nominated Sub-Contractor and Nominated Supplier of the date it was issued and the amount included for the work carried out or the materials or goods supplied by them.

          (3)      The Final Certificate shall state:

(a)      the Final Contract Sum;

(b)      the sum of the amounts already stated as due in each Interim Certificate; and

(c)      the difference between the two sums expressed as a balance due to the Contractor from the Employer or to the Employer from the Contractor, as the case may be.

          (4)      The balance referred to in clause 32.8(3) shall be a debt payable, either by the Employer to the Contractor or by the Contractor to the Employer, as the case may be, 28 days after the issue of the Final Certificate, subject to:

(a)      all deductions authorised by the Contract; and

(b)      the general rights of set off at law.

Effect of Final Certificate

32.9    (1)      Subject to clauses 32.10 and 32.11 and except where any defect in or omission from the Works was not reasonably discoverable at the time of the issue of the Defects Rectification Certificate, the Final Certificate shall be conclusive evidence in any proceedings arising out of the Contract whether by arbitration or otherwise that:

(a)      the materials, goods, workmanship and work were provided or carried out in accordance with the requirements of clause 8 to the Architect’s satisfaction;

(b)      the necessary effect has been given in the final account to all the terms of the Contract requiring an adjustment to be made to the Contract Sum;

(c)      all and only such extensions of time, if any, as are due under clause 25 have been given; and

(d)      any additional payment for direct loss and/or expense under clause 27 arising out of the occurrence of any of the qualifying events referred to in that clause is in full and final settlement of all claims for breach of contract, duty of care, statutory duty or otherwise,

except and insofar as the Final Certificate shall have been rendered erroneous by reason of fraud, dishonesty or fraudulent concealment.

# The Old Forms exclude any defect which was not reasonably discoverable before the issue of the Final Certificate. The New Forms move the date forward to the issue of the Defects Rectification Certificate. It would appear that defects (and omissions) reasonably discoverable after the issue of the Defects Rectification Certificate but not discovered are not excluded from the Final Certificate, and will be discharged. Redress can only be through common law remedy. #

          (2)      The issue of the Final Certificate shall not otherwise prejudice any common law rights and remedies regarding defective work.

Proceedings commenced before Final Certificate

32.10  If proceedings under clause 41 are commenced by either party before the Final Certificate is issued, the Final Certificate shall still have effect as conclusive evidence as provided in clause 32.9 after either:

(a)      the proceedings have been concluded whereupon the Final Certificate shall be subject to the terms of any award or judgment in or settlement of the proceedings; or

(b)      12 months have passed without either party taking a further step in the proceedings, unless there is reasonable cause for not taking this step, whereupon the Final Certificate shall be subject to any terms agreed in partial settlement,

whichever is earlier.

Proceedings commenced after Final Certificate

32.11  If proceedings under clause 41 are commenced by either party within 28 days of the issue of the Final Certificate, the Final Certificate shall still have effect as conclusive evidence as provided in clause 32.9 except in respect of the matters to which those proceedings relate.

Effect of Architect’s certificates

32.12  No Architect’s certificate shall constitute or be construed to provide evidence that any materials, goods, workmanship or work to which the certificate relates are in accordance with clause 8 save and except as is provided by the Conditions in regard to the Final Certificate.

Late payment

32.13  If the Employer does not pay an amount certified within the stipulated period of time, the Contractor, without prejudice to his other rights and remedies, shall be entitled to payment together with the certified amount by the Employer of interest at 1% below the judgment debt rate prescribed from time to time by the Rules of the High Court (Chapter A, Laws of Hong Kong) on the amount outstanding 7 days after the latest date on which the certified amount should have been paid.

33  Surety bond

Contractor to obtain guarantee from insurance company or bank

33.1    (1)      The Contractor shall obtain the guarantee of an insurance company or bank, approved by the Architect to be jointly and severally bound with the Contractor to the Employer in the sum stated in the Appendix for the due performance of the Contract under the terms of a surety bond.

          (2)      The Contractor shall deliver the bond duly executed by the insurance company or bank within 28 days of the acceptance of the Contractor’s tender.

          (3)      The surety bond shall be in the form set out in the 【Contract Bills or】Specification or, if not set out in 【either of those documents】『the Specification』, in the form set out in Schedule 1 of the Conditions, and the cost of obtaining the bond shall be borne by the Contractor.

Release of insurance company or bank

33.2 The insurance company or bank shall be released from the surety bond upon the issue of the Substantial Completion Certificate < alternatively: Defects Rectification Certificate > for the whole of the Works {and the settlement of all claims lodged against the surety bond before the issue of the certificate}.】

33.2A The insurance company or bank shall be released from the surety bond upon the issue of the Substantial Completion Certificate for the whole of the Works {and the settlement of all claims lodged against the surety bond before the issue of the certificate}.』

33.2B The insurance company or bank shall be released from the surety bond upon the issue of the Defects Rectification Certificate {for the whole of the Works and the settlement of all claims lodged against the surety bond before the issue of the certificate}.』

# choose either 33.2A or 33.2B. #

Employer’s remedy if Contractor fails to deliver bond

33.3     If the Contractor fails to deliver the bond under clause 33.1, the Employer may withhold an amount not greater than the value of the bond stated in the Appendix until the bond is delivered to the Employer, at which time the amount withheld shall be released in the next Interim Certificate following the delivery of the bond.

34  Antiquities

Effect of finding antiquities

34.1    All fossils, antiquities and other objects of interest or value which may be found on the Site before or during excavation shall, subject to the Antiquities and Monuments Ordinance (Chapter 53, Laws of Hong Kong), become the property of the Employer, and upon discovery of a fossil, antiquity or object, the Contractor shall:

(a)      use his best endeavours not to disturb the fossil, antiquity or object and shall cease work if and insofar as the continuance of work would endanger it or prevent or impede its excavation or removal;

(b)      take all measures which may be necessary to preserve the fossil, antiquity or object in the exact position and condition in which it was found; and

(c)      immediately inform the Architect of the discovery and precise location of the fossil, antiquity or object.

Architect's instruction concerning a fossil, antiquity or object

34.2    The Architect shall instruct the action to be taken concerning the fossil, antiquity or object and may require the Contractor to permit a third party to examine, excavate or remove it.

35  Determination by Employer

Default by Contractor

35.1    (1)      The Architect may give a notice of default to the Contractor before Substantial Completion of the whole of the Works if the Contractor defaults by:

(a)      completely or substantially suspending the carrying out of the Works without good cause;

(b)      not proceeding regularly and diligently with the Works;

(c)      not complying with an instruction from the Architect under clause 8.3 for the replacement, repair or reconstruction of materials, goods or work not in accordance with the Contract resulting in the Works being materially affected;

(d)      not complying with clause 19.1; or

# Clause 19.1 is regarding assignment. # 

(e)      not complying with clause 19.2 by sub-letting the whole or substantially the whole of the Works to the same person.

          (2)      The notice of default shall specify the default and state that a notice of determination may be served if the default continues for a further 14 days after receipt of the notice of default.

# Notice of default and notice of determination are two things. #

          (3)      The Employer may give a notice of determination of the employment of the Contractor if:

(a)      the Contractor continues the default for 14 days after receipt of the notice given under clause 35.1(1);

# i.e. any time after the 14 days. #

(b)      the Architect certifies this during the continuation of the default; and

# The default must still continue after the first 14 days. #

(c)      the notice of determination is given to the Contractor within 14 days of the issue of the Architect’s certificate under clause 35.1(3)(b).

          (4)      The determination of the employment of the Contractor under clause 35.1(3) shall take effect on the date of receipt of the notice of determination.

          (5)      Where the Contractor ends the default, or the Employer does not give a notice of determination, the Employer may still determine the employment of the Contractor if:

(a)      the Contractor continues the default or resumes it at any time;

(b)      the Architect certifies this during the continuation or resumption of the default; and

(c)      the notice of determination is given to the Contractor within a reasonable time after the issue of the Architect’s certificate under clause 35.1(5)(b).

          (6)      The determination of the employment of the Contractor under clause 35.1(5) shall take effect on the date of receipt of the notice of determination.

Insolvency of Contractor

35.2    (1)      The Employer may give a notice of determination of the employment of the Contractor if the Contractor:

(a)      becomes bankrupt;

(b)      makes a composition or arrangement with his creditors;

(c)      has a petition for compulsory winding-up presented or made against him;

(d)      enters into compulsory or voluntary liquidation except for the purpose of reconstruction; or

(e)      has a provisional liquidator or receiver appointed.

          (2)      The determination shall take effect on the date of receipt of the notice unless the Employer, the Contractor and his trustee in bankruptcy, liquidator or receiver, as the case may be, agree in writing to the continuation of the Contractor’s employment.

Employer’s rights upon notice of default or determination

35.3    If the Architect serves a notice of default upon the Contractor under clause 35.1, or the Employer determines the employment of the Contractor under clause 35.2:

(a)      the Contractor shall not remove any materials, goods, temporary buildings, plant or equipment from the Site until instructed to do so by the Architect under clause 35.4;

(b)      the Employer shall be given a lien upon all materials, goods, temporary buildings, plant and equipment belonging to the Contractor; and

# "belonging" is the key word. #

(c)      the Employer may provide site security if the Architect is not satisfied that adequate site security is being provided in which case:

(i)      the Contractor shall allow access to the Site for this purpose; and

(ii)      the Employer may recover the reasonable cost of providing site security in accordance with clause 40 or as a debt.

Consequences of determination

35.4    (1)      In addition to their other obligations under the Contract, the parties shall act in accordance with clause 35.4 upon determination by the Employer under clause 35.

          (2)      The provisions of clauses 20 and 21 shall remain in effect until the Contractor has left the Site notwithstanding determination of the employment of the Contractor.

# Clauses 20 and 21 are regarding liability for injury and insurance. #

          (3)      The Contractor shall return possession of < alternatively: shall leave > the Site to the Employer immediately upon determination, notwithstanding that he may dispute the validity of the determination. In the event of a breach of contract by the Employer in determining the employment of the Contractor, the only redress the Contractor shall have against the Employer is a claim in damages.

          (4)      If the Architect so instructs, the Contractor shall immediately remove his materials, goods, temporary buildings, plant and equipment with care so as to prevent injury, death or damage to persons or property and ensure that other owners remove theirs with similar care except to the extent that:

(a)      they have become the property of the Employer; or

(b)      the Architect instructs that some or all of them shall be left on the Site for use in completing the Works.

          (5)      If the Contractor does not comply with clause 35.4(4) within a reasonable time, the Employer may, without being responsible for any loss or damage, remove and sell the {Contractors’ Contractor’s} property and hold the proceeds, less all expenses incurred, to the credit of the Contractor.

          (6)      The Employer may employ and pay other persons to complete the Works and to rectify defects of the kind referred to in clause 17.3 and they shall be permitted by the Contractor to enter the Site and use the materials, goods, temporary buildings, plant and equipment left on the Site under clause 35.4(4).

          (7)      If instructed to do so by the Architect, the Contractor shall assign to the Employer, so far as he is legally able to do so, without payment:

(a)      all suppliers’, manufacturers’ and 【sub-contractors’】{sub-contractor’s sub-contractors’}warranties, guarantees or other ancillary agreements for materials, goods and work relating to the Works, insofar as they are required by the Contract, within 28 days of the date of determination; and

(b)      the remaining assignable benefit of any agreements for the supply of materials or goods, carrying out of work and the hiring of plant and equipment within 14 days of the date of determination.

          (8)      The Employer shall pay for materials, goods, work, plant and equipment{,} supplied, carried out or hired after determination at the rates stated in the relevant agreements between the Contractor and his sub-contractors or suppliers.

          (9)      The Employer may pay a sub-contractor or supplier for materials or goods delivered to the Site and work carried out if the materials, goods or work have not already been paid for by the Contractor. If the Contractor has been paid for the materials, goods or work but has not paid the sub-contractor or supplier, the Employer may recover the sum paid to the Contractor under clause 40 or as a debt.

          (10)      The Employer shall not be required to make any further payment to the Contractor until the final settlement is made under clause 35.6, unless the provisions of clause 35.7 apply.

Quantity Surveyor to prepare final account

35.5    The Quantity Surveyor shall prepare the final account as soon as practicable after the final account for the completion of the Works by the other persons referred to in clause 35.4(6) has been finalised and it shall set out:

(a)      the expenses incurred by the Employer in completing the Works excluding the cost of Variations instructed after determination;

(b)      the amount of any damage including any liquidated and ascertained damages under clause 24 due up to the date of determination and direct loss and/or expense caused to the Employer by the determination;

(c)      the payment made or otherwise discharged in favour of the Contractor; and

(d)      the total amount that would have been payable for completing the Works calculated in accordance with the Contract if the determination had not occurred.

The final settlement

35.6    (1)      The Architect shall certify, for the purpose of the final settlement, the amounts included in the final account under clause 35.5 as:

(a)      the cost incurred by the Employer in completing the Works represented by the total of the items in paragraphs (a), (b) and (c) in clause 35.5; and

(b)      the amount that it would have cost the Employer to have carried out and completed the Works but for the determination, represented by the amount in paragraph (d) in clause 35.5.

          (2)      The difference between the two amounts in clause{s} 35.6(1)(a) and (b) shall be expressed in the certificate as a debt due to the Contractor from the Employer, or to the Employer from the Contractor, as the case may be, and shall be payable within 28 days after the issue of the Architect’s certificate.

Delayed commencement of completion works

35.7    (1)      If the Employer has not begun the work of completion within 12 months after the determination, the Contractor may give notice and require the Employer to make the final settlement as soon as practicable.

          (2)      If instructed to do so by the Architect, the Contractor shall submit all the documents including those relating to the accounts of Nominated Sub-Contractors and Nominated Suppliers which are, in the Quantity Surveyor’s opinion, necessary to calculate and prepare the final account.

          (3)      The Quantity Surveyor shall prepare the final account as soon as practicable after receiving sufficient supporting documentation.

          (4)      If the Contractor fails to comply with clause 35.7(2) within 60 days of being instructed by the Architect to do so, the Quantity Surveyor shall prepare the final account based on the information that is available to him.

          (5)      The final account shall set out:

(a)      the estimated value of the work in progress properly carried out up to the date of determination calculated in accordance with clause 32.2(2);

(b)      the amount of any deduction authorised by the Contract, the amount of any damage including any liquidated and ascertained damages under clause 24 that would have been due up to the date of determination and direct loss and/or expense caused to the Employer by the determination; and

(c)      the payments made or otherwise discharged in favour of the Contractor.

          (6)      The Architect shall certify for the purpose of the final settlement, the amounts set out in the final account and the difference between the value of the work in progress represented by clause 35.7(5)(a) and the costs incurred by the Employer represented by clause 35.7(5)(b) and (c) shall be expressed as a debt due to the Contractor from the Employer or to the Employer from the Contractor, as the case may be.

Other rights and remedies

35.8    The provisions of clauses 35.1 to 35.7 are without prejudice to any other rights and remedies that the Employer may possess.

36  Determination by Contractor

Default by Employer

36.1    (1)      The Contractor may give a notice of default to the Employer if the Employer defaults by:

(a)      not paying an amount certified due to the Contractor less any deductions authorised by the Contract within the period for payment of certificates stated in the Appendix;

(b)      interfering with or obstructing the issue of a certificate to the detriment of the Contractor;

(c)      not complying with clause 19.1(1);

(d)      postponing the date for commencement of the whole of the Works or substantially the whole of the Works for a period of 120 days or more due to an Architect’s Instruction under clause 23.3; or

(e)      causing the carrying out of the whole of the Works or substantially the whole of the Works to be suspended for a continuous period of 120 days or more due to an Architect’s instruction under clause 23.3 unless notice of the suspension is given in the Contract or the suspension was caused by a breach of contract or other default of the Contractor or any person for whom the Contractor is responsible.

          (2)      The notice of default shall specify the default and state that notice of determination may be served if the default continues for a further 14 days after receipt of the notice of default.

          (3)      The Contractor may give a notice of determination of his own employment to the Employer if:

(a)      the Employer continues the default for 14 days after receipt of the notice given under clause 36.1(1); and

(b)      the notice of determination is given to the Employer within a further 14 days.

          (4)      The determination shall take effect on the date of receipt of the notice of determination.

          (5)      Where the Employer ends the default, or the Contractor does not give a notice of determination, the Contractor may still determine his own employment if:

(a)      the Employer continues the default or resumes it at any time; and

(b)      the notice of determination is given to the Employer upon or within a reasonable time after the continuation or resumption of the default except that in the case of clause 36.1(1)(d) the resumption of the default shall have lasted for a continuous period of at least 30 days.

Insolvency of Employer

36.2    (1)      The Contractor may give a notice of determination of his own employment if the Employer:

(a)      becomes bankrupt;

(b)      makes a composition or arrangement with his creditors;

(c)      has a petition for compulsory winding-up presented or made against him;

(d)      enters into compulsory or voluntary liquidation except for the purpose of reconstruction; or

(e)      has a provisional liquidator or receiver appointed.

          (2)      The determination shall take effect on the date of receipt of the notice of determination.

          (3)      The obligation of the Contractor to carry out and to complete the Works shall be suspended immediately after the occurrence of any of the events set out in clause 36.2 and before any notice of determination of his own employment takes effect.

Consequences of determination

36.3    (1)      In addition to their other obligations under the Contract, the parties shall act in accordance with clause 36.3 upon determination by the Contractor of his own employment under clause 36 unless the employment has been reinstated.

          (2)      The provisions of clauses 20 and 21 shall remain in effect until the Contractor has left the Site notwithstanding determination of the employment of the Contractor.

          (3)      The Contractor shall immediately remove his materials, goods, temporary buildings, plant and equipment with care so as to prevent injury, death or damage to persons or property and ensure that other owners remove theirs with similar care except to the extent that:

(a)      they have become the property of the Employer; or

(b)      the Architect instructs that some or all of them are to be left on the Site for use in completing the Works and the Contractor agrees to leave them on the Site subject to payment under clause 36.4(1)(c) for materials and goods and a reasonable payment for the other items.        

          (4)      The Contractor shall return the possession of < alternatively: shall leave > the Site to the Employer immediately upon completing the removal of all items referred to in clause 36.3(3) and in any case not later than 28 days after determination but shall be allowed access to the Site to take all measurements required for the preparation of the final account.

          (5)      If instructed to do so by the Architect, the Contractor shall assign to the Employer, so far as he is legally able to do so, without payment:

(a)      all suppliers’, manufacturers’ and sub-contractors’ warranties, guarantees or other ancillary agreements for materials, goods and work relating to the Works insofar as they are required by the Contract, within 28 days of the date of determination; and

(b)      the remaining assignable benefit of any agreements for the supply of materials or goods, carrying out of work and the hiring of plant and equipment within 14 days of the date of determination.

          (6)      The Employer shall pay for materials, goods, work, plant and equipment supplied, carried out or hired after determination at the rates stated in any relevant agreement between the Contractor and his sub-contractors or suppliers.

          (7)      The Employer may employ and pay other persons to complete the Works and to rectify defects of the kind referred to in clause 17.3 and they shall be permitted to enter the Site and use the materials, goods, temporary buildings, plant and equipment left on the Site by the Contractor under clause 36.3(3).

          (8)      The Employer shall pay the Contractor the Retention within 28 days of the date of the determination, subject to any right of the Employer of deduction which had accrued before determination.

Contractor to submit final account

36.4    (1)      The Contractor shall submit a final account to the Quantity Surveyor for checking, as soon as practicable, setting out the sum of:

(a)      the estimated value of the work in progress properly carried out up to the date of determination calculated in accordance with clause 32.2(2);

(b)      the estimated value of any work carried out for the protection of the Site and the Works after determination;

(c)      any amount not included in clause 36.4(1)(a) for the cost of materials and goods that were properly ordered for the Works and delivered to or adjacent to the Site which the Contractor has paid for, or is legally bound to pay for, and has or will transfer the property in these materials and goods to the Employer;

(d)      the reasonable cost of removal of materials and goods not to be sold to the Employer and temporary buildings, plant and equipment not to be left on the Site; and

(e)      the amount of any direct loss and/or expense caused to the Contractor by the determination.

          (2)      The estimated value of the work in progress referred to in clause 36.4(1)(a) shall be broken down into separate amounts for each of the relevant items listed in clause 32.2(3).

          (3)      The Contractor’s submission shall be supported by detailed and annotated dimension sheets, measurements, accounts, vouchers, receipts and the like that may reasonably be required by the Quantity Surveyor to ascertain the amounts properly due to the Contractor. The submission shall also include the accounts submitted by each Nominated Sub-Contractor and Nominated Supplier together with their similar supporting documentation.

Quantity Surveyor to check final account

36.5    The Quantity Surveyor shall check, verify or amend the final account as soon as practicable after receiving sufficient supporting documentation.

The final settlement

36.6    (1)      Upon verification or amendment of the Contractor’s final account under clause 36.5, the Architect shall certify for the purpose of the final settlement:

(a)      the amount of the final account being the total of the amounts under clause 36.4(1); and

(b)      the payments made or otherwise discharged in favour of the Contractor.

          (2)      The difference between the two amounts in clause{s} 36.6(1)(a) and (b) shall be expressed in the certificate as a debt due to the Contractor from the Employer, or to the Employer from the Contractor, as the case may be and shall be payable within 28 days after the issue of the Architect’s certificate.

Architect to notify sub-contractors and suppliers

36.7    The Architect shall notify each Nominated Sub-Contractor and Nominated Supplier of the date of the certificate issued under clause 36.6 and the amount included in it for work carried out or materials and goods supplied by them.

Other rights and remedies

36.8    The provisions of clauses 36.1 to 36.6 are without prejudice to any other rights and remedies which the Contractor may possess.

37  Determination by Employer or Contractor

Grounds for determination

37.1    (1)      The Employer or the Contractor may give a notice to the other that the employment of the Contractor will be determined in 14 days if the carrying out of the whole of the Works or substantially the whole of the Works has been suspended for a continuous period of 120 days or more due to:

(a)      loss or damage caused by a peril covered under the Contractors’ All Risks Insurance of the Works or by a Specified Peril covered by the insurance of the existing building; or

(b)      hostilities involving Hong Kong.

          (2)      The Contractor shall not be entitled to give notice of determination under clause 37.1(1)(a) in respect of loss or damage if:

(a)      the loss or damage was caused or significantly contributed to by a breach of contract or other default of the Contractor or any person for whom the Contractor is responsible; or

(b)      inspection by the insurers or mobilisation by the Contractor significantly contributed to the delay in recommencing the carrying out of the Works.

Site security

37.2    (1)      The Employer may provide site security if:

(a)      either the Employer or the Contractor has served a notice of determination under clause 37.1(1); and

(b)      the Architect is not satisfied that adequate site security is being provided.

          (2)      The Contractor shall allow access to the Site for the purpose of this clause.

Consequences of determination

37.3    (1)      In addition to their other obligations under the Contract the parties shall act in accordance with clause 37.3 upon determination of the employment of the Contractor by either the Employer or the Contractor under clause 37.1 if the employment has not been reinstated.

          (2)      The provisions of clauses 20 and 21 shall remain in effect until the Contractor has left the Site notwithstanding determination of the employment of the Contractor.

          (3)      The Contractor shall immediately remove his materials, goods, temporary buildings, plant and equipment with care so as to prevent injury, death or damage to persons or property and ensure the other owners remove theirs with similar care except to the extent that:

(a)      they have become the property of the Employer; or

(b)      the Architect instructs that some or all of them are to be left on the Site for use in completing the Works.

          (4)      The Contractor shall return possession of < alternatively: shall leave > the Site to the Employer immediately upon completing the removal of all items referred to in clause 37.3(3) and in any case not later than 28 days after determination notwithstanding that he may dispute the validity of the determination. In the event of a breach of contract by the Employer in determining the employment of the Contract the only redress the Contractor shall have against the Employer is a claim in damages.

          (5)      If instructed to do so by the Architect, the Contractor shall assign to the Employer, so far as he is legally able to do so, without payment:

(a)      all suppliers’, manufacturers’ and sub-contractors’{sub-contractor’s sub-contractors’}warranties, guarantees or other ancillary agreements for materials, goods and work relating to the Works, insofar as they are required by the Contract, within 28 days of the date of determination; and

(b)      the remaining assignable benefit of any agreements for the supply of materials or goods, carrying out of work and the hiring of plant and equipment within 14 days of the date of determination.

          (6)      The Employer shall pay for materials, goods, work, plant and equipment supplied, carried out or hired after determination at the rates stated in any relevant agreement.

          (7)      The Employer shall pay the Contractor:

(a)      one-half of the Retention within 28 days of the date of determination, subject to any accrued right of deduction which he had before the determination; and

(b)      the remainder of the Retention as part of and in accordance with the final settlement under clause 37.5.

Quantity Surveyor to prepare final account

37.4    (1)      The Contractor shall submit, within 60 days of the date of determination, all the documents including those relating to the accounts of Nominated Sub-Contractors and Nominated Suppliers which are in the Quantity Surveyor’s opinion necessary to calculate and prepare the final account.

          (2)      If the Contractor fails to comply with clause 37.4(1) , the Quantity Surveyor shall prepare the final account based on the information that is available to him.

          (3)      The Quantity Surveyor shall prepare the final account as soon as practicable after receiving sufficient supporting documentation or after the expiry of the 60 days referred to in clause 37.4(1).

          (4)      The final account shall set out:

(a)      the estimated value of work in progress properly carried out up to the date of determination calculated in accordance with clause 32.2(2);

(b)      the estimated value of any work carried out for the protection of the Site and the Works after determination;

(c)      any amount, not included in the amount calculated under clause 37.4(4)(a), for the cost of materials and goods delivered to or adjacent to the Site properly ordered for the Works which the Contractor has paid for, or is legally bound to pay for, and has or will transfer the property {in them} to the Employer; and

(d)      the reasonable cost of removal of materials and goods not to be sold to the Employer and temporary buildings, plant and equipment not to be left on the Site.

The final settlement

37.5    (1)      The Architect shall certify for purpose of the final settlement:

(a)      the amount of the final account being the total of the amounts under clause 37.4(4); and

(b)      the payments made or otherwise discharged in favour of the Contractor.

          (2)      The difference between the two amounts in clause 37.5(1) shall be expressed in the certificate as a debt due to the Contractor from the Employer, or to the Employer from the Contractor, as the case may be, and shall be payable within 28 days after the Architect’s certificate.

Architect to notify sub-contractors and suppliers

37.6    The Architect shall notify each Nominated Sub-Contractor and Nominated Supplier of the date on which the certificate was issued under clause 37.5 and the amount included in it for work carried out and materials or goods supplied by them.

38  Fluctuations

Fluctuation provisions only applicable if expressly stated to be

38.1    The Contract Sum shall be adjusted upwards or downwards to take account of fluctuations in the cost of labour and materials in accordance with the provisions set out in the Contract only if it is expressly stated in the Appendix that the Contract Sum is to be adjusted for fluctuations.

Adjustment for fluctuations occurring after the Completion Date

38.2    If the Contractor fails to complete the Works by the Completion Date and the Architect has issued a certificate to that effect under clause 24.1, the adjustments for fluctuations occurring after the Completion Date shall be calculated based on the cost of labour and materials current at the Completion Date.

39  Notices, certificates and other communications

Submission of notices, certificates and other communications

          (1)      All notices, certificates and other communications under the Contract shall be submitted to the Employer, the Architect or the Contractor on the Site or sent to the address stated in the Articles of Agreement or such other address in Hong Kong as may be advised.

          (2)      Except for notices, certificates or other communications required to be sent by special delivery, a notice, certificate or other communication shall be given by hand, sent by post or, if both parties agree, sent by facsimile or electronic mail.

          (3)      Any notice, certificate or other communication sent by prepaid post shall be deemed to be received two clear days, excluding general holidays, after posting.

40  Recovery of money due to the Employer

Employer’s power to recover damages etc.

          (1)      The Employer may make any deduction authorised by the Contract or at law including without limitation, deductions for costs, damages, liquidated and ascertained damages, debts, expenses or other sums for which the Contractor is liable to the Employer from amounts due to the Contractor including Retention.

          (2)      It is a condition precedent to the Employer’s right of deduction under clause {40.1(1) 40(1)} that he gives a notice to the Contractor by special delivery stating the amount of the deduction and the reason for it at least 7 days before making the deduction.

41  Settlement of disputes

Procedures and Designated Representatives

41.1    (1)      Subject to clause 41.5 dealing with early arbitration the parties shall follow the dispute settlement procedures outlined in clause 41.

          (2)      Each party shall designate one of its own senior executives as its representative (referred to in clause 41 as the “Designated Representatives”) within 14 days of acceptance of the Contractor’s tender, and the Designated Representatives shall endeavour to settle disputes that arise during the carrying out of the Works.

          (3)      The Designated Representatives shall have the authority to settle disputes and shall not be involved in the day to day administration of the Contract.

Reference to Designated Representatives

41.2    (1)      If a dispute arises under or in connection with the Contract, the Architect shall, at the request of either party, immediately refer the dispute to the Designated Representatives.

          (2)      The Designated Representatives shall meet within 7 days of receipt of a notice from the Architect requesting them to resolve the dispute.

Reference to mediation

41.3    (1)      If the dispute is not resolved by the Designated Representatives within 28 days of the dispute being referred to them by the Architect under clause 41.2, either party may give a notice to the other party, by special delivery, to refer the dispute to mediation and the person to act as the mediator shall be agreed between the parties.

          (2)      If the parties fail to agree on the person to act as the mediator within 21 days after either party has given to the other a written request to do so, the mediator shall, on the written request of either party, be appointed by the President or Vice-President for the time being of The Hong Kong Institute of Architects co-jointly with the President or Vice-President for the time being of the Hong Kong Institute of Surveyors.

          (3)      The mediation shall, unless otherwise agreed by the parties, be conducted in accordance with and subject to the Hong Kong International Arbitration Centre Mediation Rules except those provisions in the Rules relating to the appointment of the mediator.

          (4)      A dispute under Article 5 shall be immediately referred to arbitration without first being referred to mediation.

Reference to arbitration

41.4    (1)      If the dispute is not settled by mediation within 28 days of the commencement of the mediation, either party may give a notice to the other party, by special delivery, to refer the dispute to arbitration and the person to act as the arbitrator shall be agreed between the parties.

          (2)      If the parties fail to agree on the person to act as the arbitrator within 21 days after either party has given to the other a written request to do so, the arbitrator shall, on the written request of either party, be appointed by the President or Vice-President for the time being of The Hong Kong Institute of Architects co-jointly with the President or Vice-President for the time being of the Hong Kong Institute of Surveyors.

          (3)      The Presidents or Vice-Presidents referred to in clause 41.4(2), if in agreement to do so, may, at their discretion, request the Hong Kong International Arbitration Centre to appoint the arbitrator, by a joint letter to the Chairman of that organization.

          (4)      If the Presidents or Vice-Presidents referred to in clause 41.4(2) fail to appoint the arbitrator within 60 days after receiving the written request to do so under clause 41.4(2)《,》 then the arbitrator shall on the written request of either party be appointed by the Hong Kong International Arbitration Centre.

          (5)      The arbitration shall be a domestic arbitration conducted in accordance with the Arbitration Ordinance (Chapter {341 609}, Laws of Hong Kong) and, unless otherwise agreed by the parties, with the Domestic Arbitration Rules of the Hong Kong International Arbitration Centre except those provisions in the Rules relating to the appointment of the arbitrator.

Timing of arbitration

41.5    (1)      The arbitrator shall have jurisdiction to hear the parties and commence the arbitration of a dispute arising out of, under or in connection with the Contract at any time on a question of whether:

(a)      an Article 5 objection will be upheld;

(b)      the Architect is empowered by the Conditions to issue an instruction;

(c)      a certificate has been improperly withheld or was not issued in accordance with the Conditions;

(d)      the assessment of the Employer’s loss of value under clause 【7(2)】{7.2 7(2)} is reasonable;

(e)      the Contractor’s objection to a Variation referred to in clause 13.1(1)(a) is reasonable; and

(f)      the Contractor’s consent to the Employer taking possession of a Relevant Part under clause 18.1 is unreasonably withheld,

or on a dispute under clauses 35, 36 and 37.

          (2)      The hearing of disputes other than those listed in clause 41.5(1) shall not commence until after Substantial Completion or alleged Substantial Completion of the whole of the Works or determination or alleged determination of the Contractor's employment or abandonment of the Works unless the written consent of the parties to the hearing is given after the dispute has arisen.

Arbitrator’s powers

41.6    The arbitrator’s powers include:

(a)      rectifying the Contract to accurately reflect the true agreement made by the parties;

(b)      directing measurements or Valuations to determine the rights of the parties;

(c)      assessing and awarding any sum which ought to have been the subject of or included in a certificate; and

(d)      opening up, reviewing and revising, without limitation, the giving, submitting or issuing of any agreement, approval, assessment, authorisation, certificate, confirmation, consent, decision, delegation, direction, dissent, determination, endorsement, instruction, notice, notification, opinion, request, requirement, statement, termination or Valuation.

The place of arbitration

41.7    The place of arbitration shall be Hong Kong.

Contractor to continue to proceed diligently

41.8    (1)      The Contractor shall continue to proceed regularly and diligently with the Works despite a dispute having arisen, and shall continue to give effect to all instructions from the Architect unless and until revised by agreement between the Designated Representatives, by mediation or in arbitration under clause 41.

          (2)      The Contractor’s compliance with clause 41.8(1) is without prejudice to any other rights and remedies that he may possess.

Appendix

 

Clause

Time for submission of master programme

(if not stated, within 42 days of acceptance of the Contractor’s tender)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.1

Defects Liability Period

(if not stated, 12 months from Substantial Completion of the Works, a Section or a Relevant Part)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

17.3

Limit of indemnity to third party liability insurance against injury or death to any person

HK$ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

21.2

Limit of indemnity to third party liability insurance against injury or damage to real or personal property

HK$ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

21.2

Insurance of the Works
*Clause 22A/Clause 22B/Clause 22C applies

22.1

Percentage to cover Professional fees

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  %

22.2

Date for Possession of the Site < alternatively: Date for Entering the Site >

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

23.1

Commencement Date

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

23.2

Completion Date

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

23.2

Liquidated and ascertained Damages (HK$ per day)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

24.2

Period of Interim Certificates

(if not stated, 1 calendar month)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

32.1

Period for payment of certificates

(if not stated, within 14 days from the date of the certificate)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

32.1

Retention Percentage

(if not stated, 10 per cent)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . %

32.4

Limit of Retention

HK$. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .               

plus the Retention held in respect of Nominated Sub-Contractors and Nominated Suppliers

32.4

Period for completion of the final account

(if not stated, within 12 months from Substantial Completion of the whole of the Works)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

32.6

Amount of surety bond

HK$. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

33.1

Fluctuations        

(The Contract Sum will be adjusted for fluctuations only if it is expressly stated to be so adjusted in the space below)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

38

* Delete as applicable

 

 

SCHEDULE 1
FORM OF SURETY BOND TO BE GIVEN BY THE CONTRACTOR TO THE EMPLOYER

By this Bond, we . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . < trading as . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . > (Note 1) [whose registered office is] at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (Note 2) (‘the Contractor’) and . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . whose registered office is at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (‘the Surety’) are held and firmly bound unto . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (‘the Employer’) in the sum of Hong Kong Dollars . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (HK$. . . . . . . . . . . . . . . . . . . . . .) for the payment of which sum the Contractor and the Surety bind themselves, their successors and assigns, jointly and severally by these presents.

Sealed with our respective seals/Signed and sealed respectively* (Note 3) and dated this . . . . .  day of . . . . .  20. . . . . .

Whereas [By a Contract dated the . . . . . day of . . . . .  20. . . . . made between the Employer of the one part and the Contractor of the other part] or [By the letter of acceptance sent by the Architect on behalf of the Employer to the Contractor dated the . . . . . day of . . . . .  20. . . . . the Employer accepted the tender submitted by the Contractor dated the . . . . . day of . . . . .  20. . . . . ] (Note 4) for the . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  (‘the Contract’) the Contractor has agreed to {design or} develop the Architect’s design to the extent specified in the Contract, construct, complete and maintain the Works (as therein defined) until the issue of the Defects Rectification Certificate and to perform the Contract in conformance with the provisions thereof.

and whereas pursuant to the terms of the Contract, the Contractor has agreed to obtain the guarantee of a surety to be bound unto the Employer in the sum of Hong Kong Dollars . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (HK$. . . . . . . . . . . . . . . . . . . . . . . . . ) for the due performance of the Contract by the Contractor.

and whereas at the request of and for the account of the Contractor, the Surety has agreed to guarantee the Employer the due performance by the Contractor of {its his} obligations under the Contract.

Now the conditions of the above written Bond are:-

1.          The words and expressions in this Bond shall have the same meaning as in the Contract.

2.          The Contractor shall duly perform and observe all the terms, provisions, conditions, obligations, stipulations and specification of the Contract according to the true purport intent and meaning thereof and to the reasonable satisfaction of the Architect appointed by the Employer in respect of the Works or if on default by the Contractor the Surety shall satisfy and discharge the damages sustained by the Employer thereby as certified by the said Architect{,} up to the amount of the above written Bond then his obligation shall be null and void but otherwise his obligation shall be and remain in full force and effect.

3.          No alterations in {the} terms of the Contract made by agreement between the Employer and the Contractor or in the extent or nature of the {design or} development of the Architect’s design to the extent specified in the Contract, construction, completion and maintenance of the Works and no allowance or extension of time given or to be given by the Employer under the Contract nor any indulgence, forbearance, forgiveness, payment or concession to the Contractor in or in respect of any matter or thing concerning the Contract on the part of the Employer or any failure of supervision to prevent any fault by the Contractor shall in any way release the Surety from any liability under the above written Bond.

4.          This Bond shall be binding upon the Contractor and the Surety and their respective successors and assigns jointly and severally (provided that the Contractor and Surety may not assign their respective rights and liabilities hereunder without the prior written consent of the Employer) and shall inure to the benefits of the Employer and {its his} successors and assigns.

5.          This Bond shall remain valid for receipt of claims as aforesaid until the date of issue of the

【Defects {Liability Rectification} Certificate < alternatively: Substantial Completion Certificate >『Substantial Completion Certificate/Defects Rectification Certificates*』 {for the whole of the Works} pursuant to the Conditions of the Contract and any release of the Surety from the Bond shall be expressly subject to any claims made before this date.

6.          This Bond shall be governed and construed in accordance with the laws of the Hong Kong Special Administrative Region and the Surety hereby agrees to the non-exclusive jurisdiction of the Courts of the Hong Kong Special Administrative Region.

『* Delete as appropriate. 』

SIGNED, SEALED AND DELIVERED by the ) (Note 5)
  )
Contractor in the presence of :-  )
  )
. . . . . . . . . . . . . . . . . . . . . . . . . . .  )
(Signature of witness) )
  )
. . . . . . . . . . . . . . . . . . . . . . . . . . .  )
  )
. . . . . . . . . . . . . . . . . . . . . . . . . . .  )
(Name and occupation of witness) )
   
  OR  
   
THE COMMON SEAL of the Contractor  ) (Note 6)
  )
was hereunto affixed in the presence of :- )
  )
. . . . . . . . . . . . . . . . . . . . . . . . . . .  )
(Signature of witness) )
                                                                           )
. . . . . . . . . . . . . . . . . . . . . . . . . . .  )
  )
. . . . . . . . . . . . . . . . . . . . . . . . . . .  )
(Name and occupation of witness) )
   
  OR  
   
SIGNED, SEALED AND DELIVERED for          ) (Note 7)
  )
and on behalf of and as lawful )
  )
attorney of the Contractor  )
  )
under Power of Attorney dated  )
  )
. . . . . . . . . . . . . . . . . . . . . . . . . . . by )
  )
. . . . . . . . . . . . . . . . . . . . . . . . . . .  )
  )
in the presence of :- )
  )
. . . . . . . . . . . . . . . . . . . . . . . . . . .  )
(Signature of witness) )
  )
. . . . . . . . . . . . . . . . . . . . . . . . . . .  )
  )
. . . . . . . . . . . . . . . . . . . . . . . . . . .  )
(Name and occupation of witness )
   
THE COMMON SEAL of the Surety was here-  ) (Note 6)
  )
unto affixed in the presence of :-  )
  )
. . . . . . . . . . . . . . . . . . . . . . . . . . .  )
(Signature of witness) )
  )
. . . . . . . . . . . . . . . . . . . . . . . . . . .  )
  )
. . . . . . . . . . . . . . . . . . . . . . . . . . .  )
(Name and occupation of witness) )
   
  OR  
   
SIGNED, SEALED AND DELIVERED for          ) (Note 7)
  )
and on behalf of and as lawful )
  )
attorney of the Surety )
  )
under Power of Attorney dated  )
  )
. . . . . . . . . . . . . . . . . . . . . . . . . . .  )
  )
by . . . . . . . . . . . . . . . . . . . . . . . . . . . )
  )
in the presence of :- )
  )
. . . . . . . . . . . . . . . . . . . . . . . . . . .  )
(Signature of witness) )
  )
. . . . . . . . . . . . . . . . . . . . . . . . . . .  )
  )
. . . . . . . . . . . . . . . . . . . . . . . . . . .  )
(Name and occupation of witness) )

 

Notes

(1) Delete content in <         > where the Contractor is a limited company.

(2) Delete content in [        ] where the Contractor is a firm.

(3) * Delete as appropriate.

      Delete “Sealed with our respective seals” in the case of a firm.

      Delete “Signed and sealed respectively” in the case of a limited company.

(4) ** Delete as appropriate, select according to whether the Contract is signed or not.

(5) For use in the case of a sole proprietor or where all partners of a firm execute.

(6) For use in the case of a limited company executing under its common seal.

(7) For use in the case of a firm or a limited company executing through an attorney.

 

SCHEDULE 2
FORM OF WARRANTY TO BE GIVEN BY THE NOMINATED SUB-CONTRACTOR TO THE EMPLOYER IN CONSIDERATION OF NOMINATION

This DEED OF WARRANTY is granted to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (‘the Employer’) in respect of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (‘the Main Contract Works’) which are to be carried out by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (‘the Contractor’) under the terms of the Contract between the Employer and the Contractor dated . . . . . . . . . . . . . . . . or the letter of acceptance dated . . . . . . . . . . . . . . . . of the Contractor’s tender dated . . . . . . . . . . . . . . . .* and

In respect of our Tender for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (‘the Sub-Contract Works’) which are intended to form part of the Main Contract Works under a Nominated Sub-Contract (‘the Sub-Contract’).

* delete as appropriate

We . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (‘the Nominated Sub-Contractor’) warrant that in consideration of {your the Employer} instructing the Architect to nominate us as the Nominated Sub-Contractor for the Sub-Contract Works:-

(a)      We will commence and complete the Sub-Contract Works in accordance with the Sub-Contract.

(b)      We will indemnify the Employer against all extra costs that may be incurred by non-performance of the Sub-Contract Works, by late completion of the Sub-Contract Works or by any breach of these warranties.

(c)      We have exercised and will exercise all reasonable skill and care in :-

(1)      the design of the Sub-Contract Works insofar as the Sub-Contract Works have been or will be designed by us; and

(2)      the selection of materials and goods for the Sub-Contract Works insofar as such materials and goods have been or will be selected by us.

(d)      We will comply with and satisfy any performance specification or requirements insofar as such performance specification or requirements are included or referred to in the Tender Documents and/or our Tender as part of the description of the Sub-Contract Works.

(e)      We will supply the Architect and{/}or Contractor with such information as either may reasonably require and at such times that the Contractor shall not be delayed in completing the Main Contract Works by the Completion Date by our failure to supply such information or by delay on our part, provided always that no liability shall arise in respect of such delay on our part until we have accepted the Contractor’s order in respect of the Sub-Contract Works.

(f)       Nothing in our Tender shall operate to exclude or limit our liability for breach of the warranties set out herein.

(g)      We will obtain a surety bond in the form set out in Schedule 1 of the Sub-Contract with the requisite changes in wording to reflect that the bond is to be given by the Nominated Sub-Contractor to the Employer instead of to the Contractor. This bond will be duly executed under seal by an approved insurance company or bank, acknowledging that the insurance company or the bank is jointly and severally bound with us to the Employer in the sum of 10% of the Sub-Contract Sum (rounded up the nearest thousand dollars) against breach of the warranties hereof.

The words and expressions used in this Deed of Warranty shall have the same meaning as in the Contract and the Sub-Contract.

SIGNED, SEALED AND DELIVERED by the ) (Note 1)
  )
Sub-Contractor in the presence of :-  )
  )
. . . . . . . . . . . . . . . . . . . . . . . . . . .  )
(Signature of witness) )
  )
. . . . . . . . . . . . . . . . . . . . . . . . . . .  )
  )
. . . . . . . . . . . . . . . . . . . . . . . . . . .  )
(Name and occupation of witness) )
   
  OR  
   
THE COMMON SEAL of the Sub-Contractor  ) (Note 2)
  )
was hereunto affixed in the presence of :- )
  )
. . . . . . . . . . . . . . . . . . . . . . . . . . .  )
(Signature of witness) )
                                                                           )
. . . . . . . . . . . . . . . . . . . . . . . . . . .  )
  )
. . . . . . . . . . . . . . . . . . . . . . . . . . .  )
(Name and occupation of witness) )
   
  OR  
   
SIGNED, SEALED AND DELIVERED for          ) (Note 3)
  )
and on behalf of and as lawful )
  )
attorney of the Sub-Contractor  )
  )
under Power of Attorney dated  )
  )
. . . . . . . . . . . . . . . . . . . . . . . . . . . by )
  )
. . . . . . . . . . . . . . . . . . . . . . . . . . .  )
  )
in the presence of :- )
  )
. . . . . . . . . . . . . . . . . . . . . . . . . . .  )
(Signature of witness) )
{ )
. . . . . . . . . . . . . . . . . . . . . . . . . . .  )
  )
. . . . . . . . . . . . . . . . . . . . . . . . . . .  )
(Name and occupation of witness) )}

Notes (1)      For use in the case of a sole proprietor or where all partners of a firm execute.

          (2)      For use in the case of a limited company executing under its common seal.

          (3)      For use in the case of a firm or a limited company executing through an attorney.

 

SCHEDULE 3
FORM OF WARRANTY TO BE GIVEN BY THE NOMINATED SUPPLIER TO THE EMPLOYER IN CONSIDERATION OF NOMINATION

This DEED OF WARRANTY is granted to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (‘the Employer’) in respect of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (‘the Main Contract Works’) which are to be carried out by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (‘the Contractor’) under the terms of the Contract between the Employer and the Contractor dated . . . . . . . . . . . . . . . . or the letter of acceptance dated . . . . . . . . . . . . . . . . of the Contractor’s tender dated . . . . . . . . . . . . . . . .* and

In respect of our Tender for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .the Supply Contract materials, goods, equipment and other things (‘the Goods’) which are intended to be incorporated in the Main Contract Works under a Nominated Supply Contract (‘the Supply Contract’).

* delete as appropriate

We . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(‘the Nominated Supplier’) warrant that in consideration of {your the Employer} instructing the Architect to nominate us as the Nominated Supplier for the Goods:-

(a)      We will commence and complete the delivery of the Goods and perform all the services specified, in accordance with the terms of the Supply Contract.

(b)      We will indemnify the Employer against all extra costs that may be incurred by non-performance of the Supply Contract, by late delivery of the Goods or by any breach of these warranties.

(c)      We have exercised and will exercise all reasonable skill and care in :-

(1)      the design of the Goods insofar as the Goods have been or will be designed by us; and       

(2)      the selection of materials, goods and equipment for the Supply Contract insofar as such materials, goods and equipment have been or will be selected by us.

(d)      We will comply with and satisfy any performance specification or requirements insofar as such performance specification or requirements are included or referred to in the Tender Documents and/or our Tender as part of the description of the Supply Contract.

(e)      We will supply the Architect and/or Contractor with such information as either may reasonably require and at such times that the Contractor shall not be delayed in completing the Main Contract Works by the Completion Date by our failure to supply such information or by delay on our part, provided always that no liability shall arise in respect of such delay on our part until we have accepted the Contractor’s order in respect of the Supply Contract.

(f)       Nothing in our Tender shall operate to exclude or limit our liability for breach of the warranties set out herein.

(g)      We will obtain a surety bond in the form set out in Schedule 1 of the Supply Contract with the requisite changes in wording to reflect that the bond is to be given by the Nominated Supplier to the Employer instead of to the Contractor. This bond will be duly executed under seal by an approved insurance company or bank, acknowledging that the insurance company or the bank is jointly and severally bound with us to the Employer in the sum of 10% of the Supply Contract Sum (rounded up the nearest thousand dollars) against breach of the warranties hereof.

The words and expressions used in this Deed of Warranty shall have the same meaning as in the Contract and the Supply Contract.

SIGNED, SEALED AND DELIVERED by the ) (Note 1)
  )
Supplier in the presence of :-  )
  )
. . . . . . . . . . . . . . . . . . . . . . . . . . .  )
(Signature of witness) )
  )
. . . . . . . . . . . . . . . . . . . . . . . . . . .  )
  )
. . . . . . . . . . . . . . . . . . . . . . . . . . .  )
(Name and occupation of witness) )
   
  OR  
   
THE COMMON SEAL of the Supplier ) (Note 2)
  )
was hereunto affixed in the presence of :- )
  )
. . . . . . . . . . . . . . . . . . . . . . . . . . .  )
(Signature of witness) )
                                                                           )
. . . . . . . . . . . . . . . . . . . . . . . . . . .  )
  )
. . . . . . . . . . . . . . . . . . . . . . . . . . .  )
(Name and occupation of witness) )
   
  OR  
   
SIGNED, SEALED AND DELIVERED for          ) (Note 3)
  )
and on behalf of and as lawful )
  )
attorney of the Supplier )
  )
under Power of Attorney dated  )
  )
. . . . . . . . . . . . . . . . . . . . . . . . . . . by )
  )
. . . . . . . . . . . . . . . . . . . . . . . . . . .  )
  )
in the presence of :- )
  )
. . . . . . . . . . . . . . . . . . . . . . . . . . .  )
(Signature of witness) )
{ )
. . . . . . . . . . . . . . . . . . . . . . . . . . .  )
  )
. . . . . . . . . . . . . . . . . . . . . . . . . . .  )
(Name and occupation of witness) )}

Notes  (1)      For use in the case of a sole proprietor or where all partners of a firm execute.

          (2)      For use in the case of a limited company executing under its common seal.

          (3)      For use in the case of a firm or a limited company executing through an attorney.

Index to the General Conditions

 

Clause

Acceptance, letter of

1.6 & 5.1

Access for persons engaged by the Employer

4.3(4) & 30.2

Access for the Architect to the Site and places of manufacture

11

Access to the Site for statutory undertakers or utility companies

6.4『(2)』& 31

Access, variation concerning restriction of

1.6 & 13.1(1)

Additional costs of work by others

4.3(3)

Additional payment for delay recovery measures

26.3(2)(b)

Additional payment for direct loss and expense

27.2(1), 27.4(1)-(3), 29.2(7), 32.2(3)(k), 32.7(3)(h) & 32.9【(1){(3)(d)}『(1)(d)』

Additional payment, notice of claims for

27.1, 27.4 & 28

Additional work, rules of valuation of

13.4(8)

Additions as variations

1.6

Alterations as variations

1.6

Alternative materials and goods

8.1(3)

Ambiguities in documents

2.4

Antiquities

25.1(3)(k), 27.1, 30.2 & 34

Appointment of arbitrator

41.4(3)-(5)

Appointment of mediator

41.3(3)

Arbitration

41.4 – 41.7

Arbitrator

41.6

Architect

1.6

Architect’s consent required before determination of Nominated Sub-Contract or Nominated Supply Contract

29.14

Architect’s duties and power, delegation of

【1.7(1) &】12.2

Architect’s instructions

1.6, 4 & 6.2

Architect’s representative

2.2 & 12

Articles of Agreement

1.3, 1.4 & 1.6, 5.1(1)(a) & 39(1)

As-built drawings

5.12【(1)】

Assignment by Contractor of sub-contractor’s and supplier’s warranties etc.

5.11 & 29.3

Assignment by parties of their of rights and obligations under the Contract

1.7, 1.11(1), 2.1(1)(d) & 19

Assignment of warranties etc to Employer upon determination

35.4(7), 36.3(5) & 37.3(5)

Bankruptcy or insolvency of Contractor

35.2

Bankruptcy or insolvency of Employer

36.2

Best endeavours

25.1(4)(a) & 34.1(a)

Bills of quantities

1.6, 5.3(c), 5.4, 5.5, 5.9(c), 13.8(b) & 14

Black Rainstorm Warning

25.1(3)(c)

Bond

22.2(f) & 33

Care of the Works

2.1(1)(h) & 22.7

Census and Statistics Department

13.4(2)

Certificate, Defects Rectification

1.6, 4.1, 17.4, 17.5, 17.7, 18.3 & 21.1(2)

Certificate, Final

32.8 - 32.12

Certificate, Interim

16(1), 29.7 & 32.1

Certificate, Substantial Completion

1.6, 5.11(2), 5.12(1), 17.1 & 17.4(6)

Certificate, substantial completion of Nominated Sub-Contract works

29.10

Certificates and payments

32

Claims, Contractor’s notices and records

27.1(1) & 28.2(3)

Claims, Nominated Sub-Contractor’s notices and records

27.4

Clerk of works

12.1

Commencement Date

1.6, 2.1(1)(h), 21.1(2), 21.4, 22.4(1), 23.2, 23.3(b), 25.1(h), 27.1(2)e) & 32.1(1)

Communications to be in writing

1.9

Communications, notices and certificates, receipt of

39

Completion Date

1.6, 3.1(1)(a), 3.2(1)(a), 23.2, 24.1-24.3, 25, 29.10(3) & 38.2

Completion of Nominated Sub-Contract works

29.9

Completion, certificate for

5.11(2), 5.12(1) & 17

Completion, extension of time for

25

Completion, Sectional

1.8, 17.2(1), 17.5(1), 18.1(1) & 22.4(2)

Completion, Substantial

17 & 18

Completion, time for

23.2

Compliance with Statutory Requirements

6

Condition precedent

28.3, 32.6(4) & 40(2)

Consent, Architect’s, to determination of Nominated Sub-Contract or Nominated Supply Contract

29.14

Construction manager

10.2

Contract Bills

1.6, 2.4(1)(c), 5.1(1)(e), 5.1(2), 5.5, 5.13(2), 6.3(2)(b), 8.2(3)(a), 13.4(1)(c) & 14

Contract Drawings

1.6, 2.4, 5, 25.1(3), 25.3(5) & 27.1(2)

Contract governed by Laws of Hong Kong

1.1, 5.1(2)(a), 6.3(2), 7(2) & 8.1(3)(a)

Contract Sum

15 & 32

Contract, documents forming

5.1

Contractor to give notice of injury

21.1(3)

Contractor to return possession of Site to Employer upon determination

35.4(3), 36.3(4) & 37.3(4)

Contractor’s confirmation of variation

4.2 & 13.1(3)

Contractor’s design responsibility

2.1 & 29.6

Contractor’s interim statements

32.1(4)

Contractor’s obligations

2

Contractor’s responsibility

2.2

Contractor’s responsibility for Nominated Sub-Contractors and Nominated Suppliers

29.6

Contractor’s right of objection to nomination

29.2

Contractor’s site management team

10

Contractor’s skill and care

2.1(2) & 2.3

Contractors’ All Risks Insurance of the Works

21.2, 22, 22A-22C & 37.1

Cost of tests

8.2(3), 27.1, 32.2(3) & 32.7(3)

Damage to property

20,21 & 22.2(j)

Damage to the Works

2.1(1) & 22.2

Damage to the Works, Excepted Risks

1.6 & 2.1(1)(h)

Damages, liquidated and ascertained

18.4 & 24.2

Date for Possession of the Site

1.6 & 23.1

Date of Substantial Completion

24.2 & 25.3

Daywork

13.4(2)(c) & 14.4(7)

Deductibles, insurance

{21.3 & 22.5 21.7 & 22.8}

Default or determination, notice of sent by special delivery

1.10

Defects Liability Period

17.1-17.2 & 18.2

Defects Rectification Certificate

4.1, 17.4, 18.3, 21.1(2), 32.5(4) & 32.9(1)

Defects Rectification Certificate, Employer’s other rights and remedies after

17.7

Defects, rectification of

8.4, 17.3 & 18.3

Definitions

1.6

Definitions and interpretation

1

Delay and disruption to the progress of the Works

13.4(9) & 27

Delay recovery measures

26

Delay, first and second notices of

25.3(2)-(3)

Delay, liquidated damages for

18.4 & 24

Delegation of the Architect’s duties and powers

1.7 & 12.2

Delivery of notice of default or determination

1.10

Descriptive schedules

5.3-5.6 & 5.9-5.10

Design responsibility

2.1 & 29.6

Designated Representatives

41

Determination

35-37

Determination of Nominated Sub-Contract or Nominated Supply Contract, Architect’s consent to

29.14

Determination, notice of

1.10

Direct loss and/or expense

27

Direct payment to Nominated Sub-Contractors and Suppliers

29.8

Discrepancies in documents

2.4 & 25.1(3)(f)

Dismissal of Contractor’s agents or employees

8.5

Disputes, settlement of

41

Divergence in documents

2.4, 25.1(3)(f) & 27.1(2)(a)

Documents forming the Contract

3.3 & 5

Documents to be read as a whole

1.5

Domestic Arbitration Rules

41.4(5)

Domestic Sub-Contractor

1.6, 2.1 & 19.2(f)

Drawings

2.1(1)(f), 5.1, 5.3(b), 5.10 & 7

Drawings, as-built

5.12

Drawings, co-ordination

2.1

Drawings, electronic copies

5.8

Drawings, return of

5.10

Drawings, shop

2.1(f)

Duties and powers of the Architect’s representative

12

Early final payment to Nominated Sub-Contractor or Nominated Supplier

29.12

Emergency work

4.4 & 13.1(3)

Effect of Architect’s certificates

32.12

Employee’s compensation insurance

21.1

Employer’s other rights and remedies regarding defective work

17.7

Employer’s power to recover damages

40

Engagement of other persons to carry out Contractor’s Work

 

4.3(3)

Engineer

1.6, 1.7 & 12.1

Errors in Contract Bills

14.3(1)-(2)

Errors in Contract Sum

15

Errors in quantities

14.3

Errors in setting out

7

Excepted Risks

1.6, 2.1(1) & 25.1(3)

Expense, direct loss and/or

27

Extension of time

25

Failure to comply with Architect’s instruction, remedy

4.3(3), 17.3(4) & 35.1

Failure to insure

21.5, 22A.2, 22B.2 & 22C.3

Faulty material, removal and replacement

8.3(a)

Fees or charges

6.3, 6.4, 9.3(1), 22.2(b) & 32.2(3)(j)

Final account

32.6, 32.8-32.9, 35.5-35.7, 36.3-36.6 & 37.4-37.5

Final account, period for completion

32.6

Final Certificate

1.6, 4.1, 5.10, 24.2(2) & 32.8 - 32.12

Final settlement

32.9(1), 35.4(10), 35.6, 36.6 & 37.5

Fluctuations

38

Force majeure

25.1(3)(a)

Form of Tender

1.6 & 5.1(1)(b)

Fossils

34.1 – 34.2

Further drawings, details, descriptive schedules, etc.

2.4(1)(f) & 5.6

General Conditions, reference to clauses in

1.3

General holidays

1.6 & 39(3)

Governing law

1.1

Government department

25.1(3)

Granting extension of time for completion

25.3(6)-(8), 26.4 & 29.9

Gross valuation of the work in progress

32.1-32.2 & 32.4

Guarantee from insurance company or bank

33.1

Hearing of disputes, commencement of

41.5(2)

Holidays, general

1.6

Hong Kong Institute of Architects

41.3(2) & 41.4(2)

Hong Kong Institute of Surveyors

14.3(2) & 41.4(2)

Hong Kong International Arbitration Centre

41.3(3) & 41.4

Hong Kong Observatory

25.1(3)

Inclement weather

25.1(3)

Indemnity by the Contractor

20 & 21.6

Indemnity by the Nominated Sub-Contractor and Nominated Supplier

29.12(1)(c)

Injury to persons and damage to property

20 & 21

Injury, notice of

21.1(3)

Insolvency of Contractor

35.2

Insolvency of Employer

36.2

Inspection and testing of materials and workmanship

8.2

Instruction for expenditure of Prime Cost Sum

29.1(d)

Instructions, Architect’s

4

Insurance against injury to persons or property

21

Insurance of existing building

22C & 37.1(a)

Insurance of the Works

22

Insurance to be in joint names

21.1(1), 21.2(1) & 22.4(1)

Insurance, Contractors’ All Risks

22, 22.5 & 37.1

Insurance, deductibles

{21.3 & 22.5 21.7 & 22.8}

Insurance, employees’ compensation

21.1

Insurance, third party liability

21.2

Insure, failure to

21.5, 22A.2, 22B.2 & 22C.3

Intellectual property rights

9

Interest on late payment

32.13

Interest on refund of liquidated and ascertained damages

24.3

Interference with issue of certificate

36.1(b)

Interim Certificates

1.6, 2.2(d), 15(1), 16(1), 29.7, 29.8 & 32.1

Interim particulars of claims

25.2 & 28.2

Interim payments

29.7

Interim statements, Contractor’s

32.1(4)

Interpretations, definitions and

1

Judgment debt rate

24.3 & 32.13

Late payment

32.13

Laws of Hong Kong, Contract governed by

1.1

Letter of acceptance

1 & 5.1

Levels and setting out

7

Liability, defects

17

Liability, Employer’s, to Nominated Sub-Contractor or Nominated Supplier

29.15

Limit of indemnity

21.2(4)

Limits on ordering Variations

4.1 & 13.1

Limits to use of documents

5.13

Liquidated and ascertained damages

18.4, 24.2, 35.5-35.7 & 40

Listed events

25.1-25.3

Loss and/or expense

27

Lump sum adjustment to Contract Bills, allowance to be made in Valuations

13.4(5)

Maintenance manuals

5.11(1)

Maintenance of equipment

2.1(1)(g)

Making good defects

8.4, 17.3 & 18.3

Manager, construction

10.2

Master programme

3

Materials and goods, alternative

8.1

Materials and goods, intellectual property in

9.2

Materials and goods, on or off-site

16

Materials and workmanship, inspection and testing

8.2

Materials, goods, workmanship and work

8

Materials, removal of

8.3, 35.4(4), 36.3(3) & 37.3(3)

Measurement

14.2

Measurement on site, Contractor’s right to be present

13.6

Mediation

41.3

Method of Measurement

14.2

Method Statement

3.1(1) & 3.3

Nominated Sub-Contract or Nominated Supply Contract

 

      - extension of time

1.6, 25.1(3), 29.9 & 29.11

      - determination or termination only with Architect’s consent

29.14

      - discrepancy between documents

32.4 & 32.5

      - retention

5.2, 5.4, 5.5, 5.6 & 5.9

      - Contract documents

5.4 & 5.9

Nominated Sub-Contract, substantial completion

29.10

Nominated Sub-Contractor or Nominated Supplier

 

      - Contractor’s responsibility for

29.6

      - delay caused by

25.1(3)(m)

      - delay caused by re-nomination

25.1(3)(o)

      - direct payment to

29.8

      - early final payment to

29.12

      - Employer’s liability to

29.15

      - generally

29

      - interim payment to

29.7(c)

      - to be given copy of any notice of delay and new Completion Date

25.6(1)

      - payment

29.7, 29.8 & 29.12

      - re-nomination of

29.13

      - materials and goods, valuation of

13.8

      - warranty

29.3

Nominated Sub-Contractor’s

 

      - claim for additional payment for Direct loss and/or expense

27.4(2)-(3)

      - valuation of work

13.8

Nomination, Contractor’s right of objection to

29.2(1)

Notice of accident or injury to workmen

21.1(3)

Notice of claims for additional payment

27.1, 27.4 & 28

Notice of default

35.1(1), 35.1(2), 35.3, 36.1(1) & 36.1(2)

Notice of delay

25.1 & 25.2(2)

Notices, generally

1.9 & 39

Notices, special delivery of

1.10, 5.15, 32.1(6), 39, 40, 41.3(1) & 41.4

Objection to enter into sub-contract or supply contract

29.2 & 29.13(5)

Obligations, Contractor’s

2, 22A.3(1) & 30.3

Obligations, unfulfilled

32.2(3)(a)

Omissions as variation

1.6

Opening up for inspection

8.2(3), 25.1(3)(g) & 27.1(2)(b)

Oral instruction

4.2 & 13.1(3)

Ordering variations, limitations

4.1 & 13.1

Other persons to carry out Contractor’s work

4.3(3), 13.1(1) & 17.3

Other persons, facilities for

6.4(2) & 31

Other rights and remedies retained after the issue of the Defects Rectification Certificate

17.7

Partial possession of the Works by Employer

18

Payment for direct loss and expense

32.2(3), 32.4(1), 32.7(3)(i) & 32.9(1)(d)

Payment for direct loss and expense caused by Nominated Sub-Contractor or Nominated Supplier

29.2(7)

Payment of interest

24.3 & 32.13

Payment of Retention Money

18.2(c), 22.6(3), 32.4(1), 32.5, 36.3(8) & 37.3(7)

Payment on certificate

32.1(2)

Payment, certificates and

32

Payments to Nominated Sub-contractors and Nominated Suppliers

29.7, 29.8 & 29.12

Payments, interim

32

Performance specification

8.1(2) & 9.2

Peril, Specified

17.3, 17.6, 18.2(b), 18.5 & 37.1(1)(a)

Period for completion of final account

32.6

Person engaged by Employer

30

Person for whom the Contractor is responsible

1.6

Persons and property, injury or damage to

20 & 21

Plant, liability for loss or damage

22.2

Plant, removal of

36.4(1)(d) & 37.4(4)(d)

Possession of the Site

23.1 & 23.3

Possession of the Site upon determination

35.4(3), 36.3(4) & 37.3(4)

Postponement or suspension

23.3, 25.1(3) & 27.1(2)

Power, arbitrator’s

41.6

Power, to recover damages, Employer’s

40

Preventative work

4.4

Prime Cost Sums

1.6, 25, 27.1(2), 29.1, 29.4, 32.2 & 32.7

Production of vouchers and the like

13.4(2)(b)

Programme to be submitted

3.2 & 25

Progress, delay or disruption to

27

Progress, rate of

25.5

Provision of Drawings

5.3 – 5.9

Provisional Items

1.6, 13 & 32.7(2)(c)

Provisional Quantities

1.6 & 13

Provisional Sums

6.3(2), 13 & 29.1(b)

Provisional Sums and Prime Cost Sums, use of

29.1(1)(d)

Qualifying event

27.1, 27.3 & 32.9(1)(d)

Quality of materials, goods and workmanship and tests

8

Quality, standards and types

8.1

Quantities generally

14

Quantity Surveyor

5, 13-14, 26-27, 29-30, 32 & 35-37

Rainfall

25.1(3)

Rate of progress

25.5

Record of labour, plant and materials

13.4(2)

Recovery of money due to the Employer

40

Rectifying defects

8.4, 17.3(1), 17.5(2), 18.3, 29.12(3), 32.2(4) & 32.7(2)

Reduction of liquidated damages

24.3

Remedy on Contractor’s failure to carry out work required by the Architect to be carried out

4.3, 17.3(4), 35.1 & 35.4(5)

Remedy on failure to insure

21.6, 22A.2, 22B.2 & 22C.3

Removal and replacement of unsatisfactory material and work

8.3

Removal of Contractor’s employees

8.5

Removal of plant on termination

35.3, 35.4(4), 36.3(3) & 37.3(3)

Re-nomination

29.13

Requirements to be reasonable

1.11(2)

Responsibility of the Contractor for acts and defaults of sub-contractors and suppliers

29.6

Responsibility, Contractor’s

2.2

Retention, Calculation of

1.6 & 32.4

Retention, Limit of

1.6, 29.4, 29.12(3)(a) & 32.4(2)

Retention Money, payment

18.2(c),  32.5, 36.3(8) & 37.3(7)

Retention Money, Release of

18.2, 32.5(2), 36.3(8) & 37.3(7)

Retention, Percentage

1.6 & 32.4

Retention, Rules

32.5

Return of liquidation damages

24.3

Review of extensions granted

25.3

Right of objection to nomination, Contractor’s

29.2

Risks, Excepted

1.6

Role of the Engineer

1.7

Royalties

9

Rules of valuing variations

13.4

Safety and security of the Works

4.4, 35.3 & 37.2

Schedule of defects

17.3

Section of the Works

1.8

Sectional Completion

1.8, 17.2(1), 17.5(1), 18.1(1), 18.4, 22.4(2) & 23.2

Sequence of work, Contractor to submit programme

3.1(2)(a)

Service of notices, generally

1.9 & 39

Service of notices, special delivery

1.10, 5.15 & 39

Setting-out

7

Settlement of disputes, arbitration

41.4 – 41.7

Settlement of disputes, Designated Representatives

41.1 - 41.2

Settlement of disputes, mediation

41.3

Singular, plural, masculine and feminine

1.2

Site management team, Contractor’s

10

Site, possession of

23.1 & 23.3

Skill and care, Contractor’s

2.3

Special delivery of notice of default or determination

1.10

Specialist Contractors

1.6, 2.1(1), 6, 25.1(3), 27.1(2)(i), 30.1(a) & 30.2

Specified Peril

1.6, 17.3(1), 17.6, 18.2(b), 18.5, 22C.1, 25.1(3) & 37.1

Standards types and quality

8.1

Statutory obligations

2.1(1), 5.9 & 6

Statutory Requirements, compliance with

6

Statutory Undertakers, access for

6.4(2) & 31

Sub-contract and supply contract, Contractor not obliged to accept nomination

29.2

Sub-contract and supply contract, varied form

29.5

Sub-contract drawings

5.4 & 5.6

Sub-contractor and supplier warranty to Employer

29.3

Sub-contractor’s and supplier’s warranties etc assignment of upon determination

35.4(7), 36.3(5) & 37.3(5)

Sub-contractors and suppliers, employment of

19

Sub-contractors and suppliers, payments to nominated

29.7, 29.8 & 29.12

Sub-contractors and suppliers, responsibility of the Contractor

19.2 & 29.6

Sub-contractors’ and suppliers’ warranties etc assignment of

5.11

Sub-letting

19.2 & 35.1(1)(e)

Substantial Completion

2.1(h), 4.1, 13.4(8), 17, 18, 22.2(j), 22.4(2). 35.1(1) & 41.5(2)

Substantial Completion Certificate

5.11(2), 5.12(1), 17, 22.4, 22C.1, 29.10(3) & 33.2

Substantial Completion of Nominated Sub-Contract Works

29.10

Substantial Completion, Date of

24.2(1) & 25.3(6)

Substantially Completed, definition of

1.6

Supply of plant, materials and labour

2.1 & 8

Surety bond

33

Suspension of the Works

22.2(g), 23.3(c), 25.1(3)(j) & 27.1(2)(e)

Termination of Nominated Supply Contract

29.13 & 29.14

Tests

8

Time for completion

23.2

Time for completion, extension of

25

Types, standards and quality

8.1

Uncompleted work after Substantial Completion

17.1

Uncovering and making openings

8.2

Unfulfilled obligations

32.2(3)(a)

Unsatisfactory work and materials, removal of

8.3

Use of Prime Cost and Provisional Sums

29

Utility companies, access for

6.4(2) & 31

Valuation after determination of the Contractor’s employment

35.5, 35.6, 35.7, 36.6 & 37.4

Valuations, interim

29 & 32

Valuing variations

1.11(1)

Variations, Contractors’ confirmation of

4.2 & 13.1(3)

Variations, definition of

1.6

Variations, instructing

4 & 13

Variations, limits on instructing

4.1 & 13.1

Varied form of Nominated Sub-Contract and Nominated Supply Contract

29.5

Vouchers and the like, production of

13.4(2)(b)

Warranties, sub-contractors’ and suppliers’ assignment of

5.11

Work by person other than the Contractor

4.3(3), 17.3(4), 30 & 31

Work required, remedy on Contractor’s failure to carry out

4.3(3), 17.3(4) & 35.1

Work, unsatisfactory – removal of

8.3

Workmanship, materials and

8

Works, care of

2.1 & 22.7

Works, certificate of completion of

17

Works, commencement and completion of

23.2

Works, damage to

2.1, 22 & 22A-22C

Works, extension of time for completion

25

Works, partial possession of, by Employer

18.1

Works, postponement or suspension of

23.3

Works, safety and security

4.4, 35.3 & 37.2

Works, the whole of the

1.8(2), 5.11(2), 5.12(1), 17.2(2), 17.5(2), 17.7, 19.2(a), 21.1(2), 29.12(4), 32.1(3), 32.5-32.6, 32.8, 33.2, 35.1(1), 36.1(1), 37(1) & 41.5(2)

Works, time of completion

23.2

Writing, communications to be in

1.9