Knowledge Base 知識庫

Knowledge Base 知識庫 KCTang Thu, 22/03/2018 - 00:58
  1. This Knowledge Base is purely for the sharing of the knowledge of quantity surveying, and does not constitute as terms and conditions of our consultancy services. Our actual practice may vary to suit individual circumstances. This Knowledge Base shall not be used as evidence of practice and interpretations that we must adopt.
    此知識庫純粹用作分享工料測量的知識,並不構成為敝公司顧問服務的條件及條款。敝公司的實際做法可能因應個別情況而有所變化。此知識庫不能作為我司必須採用某做法及釋義的依據。
  2. This Knowledge Base was first published on Friday, 26th December, 2014 and was previously a WiKi site created on Thursday, 14th January, 2010.
    此知識庫首先於2014年12月26日星期六發布,之前是一個於2010年1月14日星期四建立的 Wiki 網頁

Quality Alerts 質量提示

Quality Alerts 質量提示 KCTang Wed, 04/11/2015 - 19:38

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Where is the satisfaction? 滿足感在那裡?

  1. Winning the trust of clients, being consulted frequently
    客戶信任,時常諮詢
  2. Problem solved
    解決到問題
  3. Proper monitoring of prices, without unpleasant surprises to the clients
    造價跟蹤管理得宜,不出客戶意料之外
  4. Considered fair and reasonably by both the Employers and the Contractors
    發包方及承包方都覺得公平合理
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Invisible hand 無形的手

  1. Always be prepared to be audited by a third party
    隨時準備有第三者審計
  2. Professional misconduct would cause damage to the Company not compensable by professional liability insurance
    專業失當就算有保險都不能補償對公司造成的破壞
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Treating the counter-parties 對待對手

  1. Fair
    公平
  2. Reasonable
    合理
  3. Non-corruptive
    廉潔
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Attending meetings 開會

  1. Be prepared
    要有準備
  2. Watch out deportment
    注意儀態良好
  3. Refrain from smoking
    不要抽煙
  4. Present oneself appropriately
    洽當表現自已
  5. Should not keep silence without contribution
    不要默不作聲毫無貢獻
  6. Should not speak unnecessarily
    不作無謂發言
  7. Say “To check and reply” if necessary cannot answer
    真的不會答時, 不怕答“容後補答”、“要查證再覆”
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Estimates for maintenance and renovation 維修裝修估算

  1. Estimates for maintenance and renovation may place greater emphasis on classification by locations. It is not appropriate to classify items under them according to so many elements used for new works, but structured levels are still necessary to facilitate easier reading and understanding. Therefore, the items can be grouped and listed as follows (the locations may be classified before or after them but should not be too trivial):
    維修裝修估算項目比較著重按地方分類,之下不宜再如新建工程的分部分得那麼多,但又要有層次,便於閱讀理解,故可分類排列如下(地方可先分或後分但不宜太瑣碎):
    • Scaffolding
      棚架
    • Removal of existing
      移除現有
    • Walls, Windows and Doors
      牆窗門
    • Fittings
      裝置
    • Finishes (no need to out under headings of floor, wall and ceiling)
      裝飾 (之下不必分地面、牆面、天棚等標題)
    • M&E
      機電
  2. Schedule of Works should be similar
    工程項目清單亦是這樣
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Measurement of quantities 計量

  1. Do not rely too much on on-screen measurement of cad or pdf files because there is no record of what have been measured and no detailed breakdown
    不要太依賴用cad或pdf檔 在螢幕計工程量,因計了那裡都無紀錄,又無細數
  2. Use hardcopy and dimensions to measure or use scale where necessary in case of no dimensions
    用紙張件及標示尺寸計算或在無標示尺寸時用尺量
  3. Colour on the hardcopy to indicate extent measured
    在紙張件著色識認計算了那裡
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Price information 價格資訊

  1. Build-up a database
    建立資料庫
  2. Collect directive circulars and prices published by Government and authorities
     收集政府、權力機構的指令性通知、價格
  3. Collect market prices through other commercial sources (i.e. cost software vendors)
    收集其他商業渠道的市場價格(例如造價軟件公司)
  4. View newspapers, periodicals, internet
    檢閱報章、期刊、互聯網
  5. Collate internal information
    整理自身的資料
  6. Analyse content ratios and unit costs of past projects
    分析過往工程含量及單位造價
  7. Obtain through tendering
    通過招投標取得
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Cash flow table 資金流量表

  1. Use horizontal table with a chart
    盡量使用橫式有圖表那個款
  2. Include complete remarks
    要加齊註釋
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Standard documents 標準文件

  1. Use standard documents/templates to prepare fee proposals, tender documents, tender reports and other documents, but may refer to other projects for useful changes
    要用標準文件編寫顧問費報價、招標文件、投標分析報告及其他文件,但可參考其他工程有用的改動
  2. Do not adapt from other projects, unless really appropriate, but should check  the standard documents for any updates
    不要直接用其他工程的改, 除非真的合適,但仍要核對標準文件有無最新的改動
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Lead in water problem 鉛水問題

  • Check tender documents for expressions using lead, and check with the designers whether this is appropriate
    檢查招標文件有無用鉛的字句,及與設計單位了解是否適合
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Insurance provisions in tender documents 招標文件保險條款

  1. Ensure that the name list of the joint-insured as specified in the Contractors’ All Risks and Third Party Liability insurance provisions is comprehensive; apart from the Employer, the Contractor and sub-contractors of all tiers, note whether the list should include:
    確保規定工程一切險及第三者責任險的條款的聯名被保險人的名單齊全;除發包方丶承包方及各層分包方外,還要注意是否要加入:
    • the Building Manager (being a manager of the relevant properties, he may be held liable)
      物業管理人(因他為相關物業的管理人,可能被追討責任)
    • other contractors employed by the Employer (because their works will be carried out currently with the Works, and the liability for accident may not be clearly separable)
      發包方聘用的其他承包商(因其工程與本工程同時執行,意外責任未必能分得清)
    • consultants (because they are not directly performing the Works, and the insurances can only cover risks caused by the performance of the Works, therefore, it is doubtful whether they should be included as one of the joint-insured) 
      顧問(因他們不是直接執行工程者,而保險只保障執行工程所造成的風險,因此,把他們作為聯名被保險人之一的效用存疑)
  2. Adjust the old term “separate specialist contractor” to match the term used in the new Standard Forms of Contract
    調整“separate specialist contractor”這舊有叫法以符合新標準合同的叫法
  3. State the values of their works for inclusion as part of the sum insured to avoid inadequate insurance cover
    列出他們的工程金額,作為保額的一部分以免保額不足
  4. State expressly work outside boundaries to avoid lack of insurance cover
    特別列出工地外的工程以免保險範圍甩漏
  5. Include in the amount of removal of debris the costs of demolition of building, hoardings (if not included in the present contract), scaffolding for demolition, etc; review whether the $1M stated in the standard documents are adequate and adjust as appropriate
    計算保險的殘礫清理保額時要包括拆樓、圍街板(假設本合同價未包括圍街板)及拆樓用的棚架;檢討標準文件寫的100萬元是否足夠及作適當的修改
  6. State the values of the previous works such as foundations and hoardings for inclusion as part of the sum insured under the material damage section to ensure full cover; alternatively, if the risk of total loss is low, insure as the principal’s properties under the third party liability section, but the limit of indemnity will be lower
    列出之前的工程,例如基礎、圍街板等的價值,加入物質損壞保險的保險額內以取得全額保;或者,如全毀的風險低,可以作為工程委託方的財産形式在第三者保險部份受保,但賠償額較低
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Preparing Bills of Quantities or Schedule of Rates 編寫工程量清單或單價表

  1. Read the Standard Method of Measurement, whether you are experienced or not; do not just listen to other people
    任何時間都要睇工程量計算規則,無論生手定熟手,不要光聽人講
  2. Note concrete mix, beam depth stages, height stages, edges, shoulders, straight / sloping / curved, etc.
    計混凝土工程時要注意混凝土的標號、樑深的層級、高度的層級、邊沿、接肩、直斜彎,等等!
  3. Do not blindly follow past Bills of Quantities or Schedule of Rates because they may have simplified the measurement which may not be applicable to every project, and may in fact be wrong
    不能盲目照跟舊有的工程量清單或單價表因為它們可能把計法簡化了,但此不是單單工程都合用,而其實可能根本就錯了,
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Preliminaries Bills 開辦營運費清單

  • Draw horizontal lines to separate items in Preliminaries Bills containing clause headings only to enable entry of prices in alignment with the item descriptions
    用橫線把只列條款標題的開辦營運費清單內的項目間開以便填寫價格時對齊項目說明
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Documentary exchange with tenderers 與投標者的來往文件

  • Keep the hardcopies and softcopies of documents, correspondence, faxes and emails exchanged during tendering under a separate folder for each tenderer to enable easy tracking and compilation of contract documents
    把招投標標的 所有來往文件、信件、傳真及電郵的打印或電子件按每一投標者分開歸檔,以便追蹤及製作合同文件
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Tender clarification queries 詢標問卷

  • Clarify in the tender clarification queries only those incorrectly priced high or low rates, not comparatively high or low rates
    在詢標問卷應只問錯誤地高或低的單價,而不是相對高或低的單價
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Financial reports 最終造價估算報告

  1. Estimated Amount = Reasonably estimated maximum amount for budgetary purposes
    估計價 = 合理估計的最大金額,供投資預算用
  2. First Claimed Amount = Amount initially claimed or the biggest amount claimed by the Contractor
    原報價 = 承包商第一次或最大的一次的報價
  3. Latest Claimed Amount = Latest revised amount claimed by the Contractor, or the current amount after negotiated reduction
    最新報價 = 承包商最新的修訂報價,或通過談判應已減低了的金額
  4. Assessed Amount = Amount accurately or roughly assessed to be comfortably payable finally, in other words, the minimum final amount payable
    審核價 = 經準確或大約計算得的可安心作為最終應付的總額,亦即等如最低的最終應付總額
  5. When Assessed Amount = Claimed Amount, Estimated Amount should also be = Assessed Amount
    當審核價 = 報價時,估計價亦應 = 審核價
  6. In the final stage of final account, the Estimated Amount should be smaller than the Claimed Amount
    到結算後期,估計價應低於報價
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Approximately 大約

  • Write “approximately X Nos.” instead of  “approximate X Nos.”
    寫成“approximately X Nos.” 而不是  “approximate X Nos.”
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Replace by or with 更換

  • “replace by” or ”with” may be distinguished by this example: in “replace A by B with C”, A is the replaced, B is the one who takes action, and C is the substitution
    “replace by”定”with” 可以此例子分辨:”replace A by B with C” 中A是被更換者、B 是行動者、C是代替者
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Final account item descriptions 結算項目說明

  1. Note that if the words "revise", "change", "replace" and similar are used in the final account item descriptions, cost omission and addition are both expected
    注意當”修改”、”改變”、”更換”等類似用詞在結算項目說明使用時,意味應同時有減帳及加帳
  2. Make sure that the final account item descriptions are consistent with the cost effects
    確保結算項目說明是與費用影響匹配
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Personnel Organization 人員編制

Personnel Organization 人員編制 KCTang Sat, 20/12/2014 - 19:01
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Personnel organization to consider 人員編制要考慮

  1. How many people
    要多少人

  2. Types and number of professional personnel
    專業人員的類別及人數

  3. Types and number of supporting personnel
    輔助人員的類別及人數

  4. Continuing learning
    持續學習

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Kind of persons to employ 請什麼類形的人

  1. Enduring
    克苦

  2. Hard working
    實幹

  3. Attentive to details
    細心

  4. Highly analytical
    分析力強

  5. Eager to learn
    肯學習

  6. Able to use computer
    會用電腦

  7. Able to use common office software
    會用常用的辦公室軟件

  8. Literate in Chinese and English
    具中英語文能力

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Administrative Management 行政管理

Administrative Management 行政管理 KCTang Wed, 04/11/2015 - 19:27

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Office appliances 辦公用具

  1. Paper
    紙張
  2. Printer
    打印機
  3. Photocopier
    影印機
  4. Scanner
    掃描器
  5. Binding machine
    釘裝機
  6. Telephone
    電話
  7. Fax machine
    傳真機
  8. Broadband connection
    寬頻接線
  9. Internet service
    互聯網服務
  10. Intranet
    內聯網
  11. Computer
    電腦
  12. Client software
    客戶機軟件
    • office automation
      辦公
    • pdf and compression
      pdf 及壓縮
    • CAD and BIM
      繪圖及立體資訊模擬
    • server software
      伺服器軟件
    • File server
      檔案伺服器
    • Email server
      電郵伺服器
    • Web server
      網頁伺服器
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Passwords 密碼

  1. Unless authorized, do not watch, memorize or use passwords used by the Company to assess internal or external websites
    未獲授權不應觀看、記下及使用公司使用的內外網站的密碼
  2. Do not disclose passwords used by the Company to outside persons
    不得對外人披露公司使用的密碼
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Fax machine setting 傳真機的設定

  1. Set time clock
    設定時鐘
  2. Set sender’s identity
    設定發送者的識別
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Printer driver 影印機的驅動程式

  1. Do not install those provided by Windows
    不要安裝Windows 提供的
  2. Install those provided by the printer companies
    安裝打印機公司提供的
  3. Copy the file saved in the “Installation Sources” folder in the server to the local computer, install, set to use A4, black and white, single sided and recycled paper, and delete the file after successful installation
    把存儲在伺服器”Installation Sources”檔案夾內的安裝檔抄到自己電腦,安裝,設定用A4、黑白、單面、再用紙,裝後刪除安裝檔
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Protocol when answering phone calls 接聽電話的禮儀

  1. Answer first with company name or own name
    先報上公司名稱或自已名稱
  2. Proactively answer calls unattended, write down name of caller, company name, contact number, and relevant project or matter, and pass the note to the relevant person
    主動代接無人接聽的電話,並寫低來電者名稱、公司、聯絡電話、相關的工程或事項,交給有關人員跟進回覆
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Use of emails 電郵的使用

  1. Follow the template for folder structure under the email Data folder to create new folder structure for new jobs
    參照Data電郵夾下的電郵夾結構模板” template for folder structure” 的概念把所有工程的電郵夾分類及統一名稱
  2. Delete spam emails under sight, to reduce everybody’s abortive time to read (permanent clearance from the Deleted Items folder will be done by the Administrator)
    一見垃圾電郵就立刻刪除,以免人人都要花時間看(從刪除郵件夾永久刪除由管理員做)
  3. Ignore all emails received from time to time calling for security verification regarding iTune, Apple ID, Microsoft, PayPal, HSBC, etc. since they are mostly malicious emails
    千祈不要理會不時收到的關於iTune、 Apple ID、Microsoft、PayPal、HSBC 等等要人重新輸入認證的電郵,黑郵居多
  4. Do not open or save attachments received from unknown persons, and do not click open links
    不要打開或儲存來自不認識的人的附件,亦不要打開連結
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Use of WhatsApp 短信的使用

  1. Reply immediately upon receipt of messages in the Company chat group and relating to self or all people
    在公司群組收到關於自已或關於全部人的短訊要即覆
  2. Report after completion of the task
    在事件完成後要報告
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Revit

  1. Use the License Transfer Utility provided by Revit to transfer Standalone License from one computer to another computer without infringing the license
    使用Revit提供的許可證轉移工貝(License Transfer Utility)把單機許可證從一部電腦, 轉移到另一部機而不違反許可證
  2. Use Revit 2015 because some outside companies still use Revit 2013 or 2014 and models of new version cannot be converted back to older versions
    使用Revit 2015版,此乃因為外面有些公司仍只用Revit 2013或2014版,但新版本的模型不能改回舊
  3. Use Revit 2015 for trial
    2016版屬試用
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Documentary system 文書機制

  1. Use standard documents and templates
    使用標準檔、範本
  2. Implement file management
    執行檔案管理
  3. State file names, reference numbers, project names, contract names, subjects
    註明檔案名稱、編號、項目名稱、合同名稱、主旨
  4. State date of receipt or dispatch, and affix acknowledgement chop
    註明收發的日期及蓋簽收章
  5. Carry out  internal check
    執行內部審核
  6. Double-check after printing
    列印後要覆核
  7. Double-check after calculating
    計算後要覆核
  8. Double-check after transferring figures
    搬移數字要覆核
  9. Check quantities and rates
    覆核數量、單價
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File compression 檔案壓縮

  • Set Winrar to use zip format to enable users who do not have Winrar to open (Windows file explorer can open zipped files)
    把Winrar 檔的格式設定為zip方便沒有Winrar的人打開(Windows file explorer可打開zipped 檔
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Generate pdf file from Word file Word 檔轉換成 pdf檔

  • 按以下優先次序以減少檔案大小:
    • Print CutePDF (如有)
    • Print - Save as Adobe PDF (如有)
    • Print - Adobe PDF (如有)
    • Export
    • Save as
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Travelling expense 交通費

  • State the destination on all taxi fare receipts for the record
    在 所有的士單據上列明目的地,以作記錄
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Use of toilets 衛生間的使用

  1. Use the toilet roll plastic wrapper after unwrapping as the base cushion to the toilet roll to avoid wetness and reduce dirt
    把廁紙膠套在剝除後用作廁紙的座墊,以便防濕及減髒
  2. Place a new roll as reserve when the toilet roll is about to be used up
    廁紙接近用完,主動取放一卷作後備
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Hong Kong Quantity Surveyors and Mainland Cost Engineers 香港工料測量師及內地造價工程師

Hong Kong Quantity Surveyors and Mainland Cost Engineers 香港工料測量師及內地造價工程師 KCTang Sat, 20/12/2014 - 17:21

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Major Types of Employers of Quantity Surveyors in Hong Kong 香港顧問工料測量師的主要僱主類別

  1. Consultant quantity surveying practices
    工料測量顧問公司
  2. Contractors
    承建商
  3. Government and quasi-government organizations
    政府或半官方機構
  4. Developers
    發展商
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Major Scope of Services of Consultant Quantity Surveyors in Hong Kong 香港顧問工料測量師的主要服務範圍

  1. Preparation of pre-construction cost estimates
    編訂概算
  2. Cost planning during the design stage
    設計階段造價控制
  3. Preparation of tender documents
    編訂招標文件
  4. Pre-qualification of tenderers
    投標單位預審
  5. Tender analysis
    審標
  6. Tender negotiation
    議標
  7. Contract award
    定標
  8. Preparation of contract documents
    編訂合同文件
  9. Checking of insurance policies and performance bonds
    審核保險單、履約保證書
  10. Assessing progress payment applications
    審核進度款
  11. Cost monitoring during the construction stage
    施工階段造價控制
  12. Assessing amounts of variations and claims
    審核變更費、索賠
  13. Agreement of final accounts
    商議結算
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Specialized Services of Some Consultant Quantity Surveyors in Hong Kong 香港某些顧問工料測量師的特別服務範圍

  1. Claims consultancy
    索賠顧問
  2. Dispute resolution advisory, mediation and arbitration
    解決爭議、調解、仲裁
  3. Insurance loss adjustments
    保險理賠
  4. Facilities management
    設施管理
  5. Value management
    價值工程
  6. Partnering facilitation
    促進夥伴關係
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Characteristics of Consultant Quantity Surveyors in Hong Kong 香港顧問工料測量師的特色

  1. Full services from inception of project to completion of construction
    由項目構思到建造完成的全過程造價諮詢服務
  2. Now extending to post completion maintenance until redevelopment
    現在申延到建造後的維修直至重建
  3. Dynamic management with constant review and updating
    不斷檢討及更新的動態管理
  4. Cost and contract management of various kinds
    造價及合同管理多樣化
  5. No Government control
    沒有政府監管
  6. Mainly handling contracts with Bills of Quantities, but also contracts without Bills of Quantities
    主要處理有工程量清單的合同,但亦處理沒有工程量清單的合同
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Major Scope of Services of Contractor Quantity Surveyors in Hong Kong 香港承建商的工料測量師的主要服務範圍

  1. Similar to that described for Consultant Quantity Surveyors but starting from the tender stage
    與顧問工料測量師的差不多但從投標階段開始
  2. Essentially commercial and contract management for the contractors
    主要負責承建商的商務及合同管理
  3. Dealing with upstream clients and consultants
    處理上游的委託方及顧問
  4. Dealing with downstream sub-contractors, suppliers and workers
    處理下游的分包商、供應商及工人
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Traditional Scope of Services of Cost Engineering Consultants in Mainland China 內地造價工程咨詢單位的傳統工作範圍

  1. Preparation of pre-construction cost estimates, tender drawing cost estimates and final accounts, and usually as separate services
    只做概算、預算及結算,而通常是分開的服務
  2. Pre-construction cost estimates are done one or twice only, not following through the whole design stage
    概算只做一、二次,不跟蹤整個設計階段
  3. Not providing contract advisory services
    不提供合同咨詢服務
  4. Tender drawing cost estimates are usually for the client's reference for tender negotiation, not for tendering purposes and usually are subject to remeasurement when settling the final accounts
    預算通常只是給委託方參考作為議標用,不作為招標用,而通常在結算時重算
  5. Not providing contract advisory services
    不提供合同咨詢服務
  6. Not significantly involved in the tendering stage
    招標階段不顯著參與
  7. Not significantly involved in the construction stage
    施工階段不顯著參與
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Recent Scope of Services of Cost Engineering Consultants in Mainland China 內地造價工程咨詢單位的近年的工作範圍

  • Evolving progressively to provide full scope of services like Quantity Surveyors
    陸續演變到好像工料測量師般提供全過程服務
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Competitors 競爭對手

  1. Same profession
    同專業
    • Local
      本地
    • Other provinces
      外省市
    • Foreign countries
      國外
  2. Other professions
    不同專業
    • In-house employers of developers
      建設單位自有人員
    • Other professions within the same industry or outside
      行裡行外的其他專業
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Measures to Compete with Others 克服競爭對手的手法

  1. Government policies, qualification requirements, tax - only applicable to Mainland China
    政策、資質、稅收 - 只適用於內地
    • against: other provinces, foreign countries
      對:外省市、國外
  2. Customary practice, alliance, attachment - applicable to Mainland China
    慣例、掛鈎、掛靠 - 適用於內地
    • against: local
      對:本地
  3. Capability, service contents, lower prices, integrity
    實力、服務內容、平價、誠信
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Factors affecting Business Survival 影響企業生存的因素

Factors affecting Business Survival 影響企業生存的因素 KCTang Sat, 20/12/2014 - 18:33

Table of Contents

  1. Favourable
  2. Adverse

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Favourable

  1. Professional competence
  2. Quality management
  3. Complaint avoidance
  4. Timely response
  5. High efficiency
  6. Innovation
  7. Integrity (this being listed last not because it is of the least importance but because it is a matter of course without saying)
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Adverse

  • Professional negligence
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QS's Measures to Enhance Cost Effectiveness of Projects and Processes

QS's Measures to Enhance Cost Effectiveness of Projects and Processes KCTang Sat, 20/12/2014 - 18:41

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Estimating

  1. Provide early and quick advice on costs of preliminary design to avoid abortive design effort
  2. Provide early and quick advice on costs of alternative designs to select the better alternatives
  3. Participate actively in project meetings to voice out areas of design with possible imbalanced cost allocations
  4. Participate in value management workshops to evaluate different design options to enhance values of proposed designs
  5. Update the pre-construction cost estimates regularly in line with design development to ensure no uncontrolled budget overrun
  6. Advise on the cost implications of major changes likely to cause budget overrun to see whether the changes are justified and value for money
  7. Suggest savings to off-set unexpected changes contributing to budget overrun
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Tender Documentation

  1. Suggest how the contracts should be packaged to give a proper balance between long lead time to complete design for the whole project, risks and hence higher tender prices to allow for long lag time to actually carry out some work sections, single line of responsibility, etc.
  2. Suggest how the design responsibilities should be shared between the Architect & Engineer and the Contractor to ensure proper share without undue high costs and unbearable risks while benefiting from the Contractor's design-and-build expertise
  3. Observe and follow the standard practice and procedures and use standard templates to reduce abortive work to team members in scrutinising the deliverables
  4. Request for the most up-to-date client's practice manuals, standard templates and house rules which may not yet be available on the web site yet to avoid abortive work
  5. Scrutinise the standard templates for preparing tender documents and make suitable amendments to reflect the project specifics to ensure that the tenderers are sufficiently alerted to when pricing the tenders
  6. Seek early approval on authority to use alternative standard provisions and on deviations from the mandatory standard provisions
  7. Check actively the tender drawings and tender specification to ensure sufficient details and no discrepancies, and request the Architect and Engineer to supplement and clarify accordingly
  8. Prepare the cost estimates and bills of quantities in good quality following a due process of quality control to eliminate chances of errors or omissions.
  9. Use provisional quantities or schedule of rates as a supplement to the bills of quantities in case the relevant design is not fixed and firm yet for tendering so to obtain rates for post contract pricing
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Tender Analysis

  • Scrutinise the tenders received to ensure no irregularities in pricing
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Post Contract Cost Contract

  1. Advise on the cost implications of every proposed variation as well as instruction involving expenditure of provisional items during construction
  2. Update the post contract cost reports regularly considering all variation instructions, expenditure of provisional items, claims, etc. to ensure no uncontrolled budget overrun
  3. Suggest savings to off-set unexpected changes contributing to budget overrun
  4. Value payments fairly and reasonably so as not to cause unfair and unnecessary cash flow burden on the Contractor, which will eventually result in higher final account claim
  5. Advise on proper contractual interpretation to fairly treat reasonable claims and resist unreasonable claims
  6. Suggest alternative solutions to help resolve problems encountered by the Contractor to avoid the problem to escalate into a cost claim without chance of mitigation
  7. Adopt the principle of mediation where parties should seek to achieve win-win situation in stead of arguing over the rights and wrongs
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Development Cycle 建設流程

Development Cycle 建設流程 KCTang Sat, 20/12/2014 - 18:45
  1. Feasibility Study
    可行性研究
  2. Leasing land / purchasing buildings / renting buildings 
    租地 / 買樓 / 租樓

    • New Development 
      新建
    • Redevelopment 
      重建
    • Conversion 
      改造
    • Renovation 
      翻新
  3. Design 
    設計
  4. Planning Approval 
    規劃許可
  5. Tendering 
    招投標
  6. Construction 
    施工
  7. Use / Repair and Maintenance 
    使用/維修保養

Organisation of Parties to Construction 建設組織架構

Organisation of Parties to Construction 建設組織架構 KCTang Sat, 20/12/2014 - 18:50

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Developer / Owner / Employer 建設單位 / 業主 / 發包方

  1. Project Manager
    項目經理
  2. Consultants
    顧問團
    • Architect
      建築師
    • Structural Engineer
      結構工程師
    • Building Services Engineer / M&E Engineer
      屋宇設備工程師 / 機電工程師
    • Interior Designer
      室內設計師
    • Geotechnical Engineer
      地質工程師
    • Landscaping Architect
      園境師
    • Quantity Surveyor
      工料測量師
  3. Clerk of Works / Building Services Inspector
    現場監工 / 機電監工
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Main Contractor 總承包方

  1. Sub-Contractors
    分包方
    • Nominated
      指定
    • Domestic
      自選
  2. Suppliers
    供應商 / 供貨方
    • Nominated
      指定
    • Domestic
      自選
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Other Separate Contractors and Suppliers 其他獨立承包方及供應商

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Statutory Undertakings and Utility Companies 法定承辦商及市政配套單位

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Purchasers and Users 買家 / 用家

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Estimating and Pricing 估算及套單價

Estimating and Pricing 估算及套單價 KCTang Sat, 20/12/2014 - 19:21

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Cost and Price 成本與造價

  1. “Cost” and “Price” often used interchangeably
    ”成本” 與 ”造價” 常常互通使用

  2. Between the two parties to a transaction, the price to the Seller/ Contractor is the cost to the Buyer/Employer
    就某個交易而言,賣方/承包方的造價即買方/發包方的成本

  3. For the same party, Cost + Profit = Price.
    就同一方而言,成本+利潤 = 造價
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Source of Data 資料來源

  1. Rates:
    單價:
    • Tender Prices
      投標價
    • Final Account Prices 
      結算價
    • New Enquiries. 
      詢價
  2. Cost Analysis of Other Projects 
    其他工程項目的造價分析
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Rate Build-up 單價組成

  1. Labour costs:
    ​人工費:
    • Daily rates to include for daily basic wage, travelling and meal allowances, allowances for hand tools and personal accessories, allowances for holidays with pay, MPF contribution, year end bonus, incentive payments, levies and insurances if not priced separately, etc.
      日工單價應包括基本日工資、交通及伙食津貼、工具及個人用品津貼、有薪假期、公積金、年終獎金、鼓勵性獎金、未另行計算的政府徵費和保險、等等
    • ​Time to consider taking from stores, hoisting, lowering, placing, fixing and non-productive travelling and recess time, etc.
      ​工時應考慮從倉取料、上料、安放、安裝及非生產的交通及小息時間、等等
  2. Material costs:
    材料費:
    • Rates to include for ex-factory costs, package, export transportation, transit insurance, customs clearance and duties, demurrage, off-site storage, local delivery, returning package, off-loading, etc.
      單價應包括出廠價、包裝、出囗運輸、運輸保險、清關及關稅、清關滯留、場外儲存、當地運輸、退還包裝、卸貨、等等
    • Quantities to consider basic quantities, breakage, damage, theft, wastage (cutting, conversion), unmeasured laps, bulkage, consolidation, shrinkage, etc. 
      ​數量應考慮基本用量、破損、損壞、失竊、損耗(切割剪裁、加工) 、不另計的搭接、膨脹、收縮、等等
  3. Plant costs: 
    機械費:
    • Use of plant
      機械使用費
    • Mobilization, relocation and demobilization, if not measured separately
      機械進場、中間移位、退場運輸費(若未有另項計算) 
    • Fuels and consumables
      燃料及耗料費
    • Maintenance and repair
      維修保養費
    • Unavoidable idling time
      不可避免的閒置費
  4. Site overheads
    現場管理費
  5. Head Office Overheads
    公司管理費
  6. Profit
    利潤
  7. Tax if charged based on total price
    按總價計取的稅金
  8. Rates build-up applicable to measured work as well as preliminaries
    單價組成適用於實物工程量及開辦經營費
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Reasons for Cost Variances 造價差異原因

  1. Design: 
    設計:
    • Functions
      功能
    • Materials and Construction
      材料及實體
    • Standard
      檔次
  2. Site Location: 
    ​選址:
    • Transportation
      交通
    • Restrictions
      ​限制
  3. Construction: 
    施工:
    • Project Size
      工程大少
    • Extent of Mechanization
      機械化程度
    • Extent of Standardization
      標準化程度
    • Extent of Repetition
      重複程度
    • Extent of Pre-fabrication
      預製程度
    • Volume of Bulk Purchasing
      ​採購量
    • Workmanship
      工藝
    • Weather
      天氣
  4. Economic Environment: 
    經濟環境:
    • Level of Market Competition
      市場競爭程度
    • Exchange Rates
      匯率
    • Time Differences
      時間差
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Indices for Adjusting for Time Differences 時間調整指數

  1. Cost Indices
    成本指數
  2. Tender Price Indices
    造價指數
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Index References 指數參考資料

  1. Census and Statistics Department - Index Numbers of the Costs of Labour and Materials used in Public Sector Construction Projects
  2. 政府統計處 - 公營建築工程的工資及材料成本指數
  3. Census and Statistic Department - Average Wholesale Prices of Selected Building Materials
  4. 政府統計處 - 特選建築材料平均批發價格
  5. Architectural Services Department - Building Works Tender Price Index
  6. 建築署 - 建築工程投標價格指數
  7. Architectural Services Department - Building Services Tender Price Index
  8. 建築署 - 屋宇設備投標價格指數
  9. Rider Levett Bucknall - Hong Kong and China Cost Reports
  10. Langdon Seah - China and Hong Kong Cost Summaries and Reviews
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Pre-Contract Cost Planning and Control 施工合約前的成本計畫及控制

Pre-Contract Cost Planning and Control 施工合約前的成本計畫及控制 KCTang Sat, 20/12/2014 - 19:40

Table of Contents

  1. Principal Tasks during the Pre-Contract Stage 施工合約前的主要工作
  2. Need for Pre-construction Estimates 為何需要概算
  3. Best Time to Plan and Control the Costs 造價控制的最佳時機
  4. Different names of pre-construction cost estimates 概算的不同名稱
  5. Cost Estimate, Cost Plan and Budget 概算、成本計畫及投資預算
  6. Ways to Calculate the Cost Estimates 計算概算的方法
  7. Estimating Motto 四字真言
  8. Cost Parameters 造價參數
  9. Cost Geometry 造價幾何
  10. Building up Composite Rates組合單價的測算
  11. Source of Data 資料來源
  12. Element 功能分部
  13. Element groups (example) 功能分部裙組(例子)
    1. Builder’s Works / Structure and Fabric樓房土建 / 結構及框架
    2. Finishes and Fittings樓房裝飾
    3. Building Services樓房機電安裝
    4. Site and External Works前期及外圍工程
    5. Profits and Attendance on Sub-Contractors and Suppliers分包管理配合費
    6. Preliminaries開辦經營費
    7. Design Contingencies / Design Development Allowance設計深化增項預留費
    8. Construction Contingencies施工不可預見費
    9. Developer’s Soft Costs建設單位其他費用
  14. Contents of Cost Estimate 概算的內容
    1. Grand Summary: 大匯總
    2. Descriptions: 編製說明
    3. Elemental Summary of each Section: 每區域的功能分部匯總:
    4. Detailed Build-up: 具體項目:
    5. Possible additional information: 可能的附加資料:
  15. Rates 單價
  16. Adjustments to Published Unit Costs per Floor Area
  17. Preparing Cash Flow Tables 編製資金流量表
  18. Reconciliation概算變化的解釋
  19. Pre-tender Estimate 標底

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Principal Tasks during the Pre-Contract Stage 施工合約前的主要工作

  1. Preparing Cost Estimates
    編製估算概算
  2. Preparing Cash Flow Tables
    編製資金流量表
  3. Attending Design Meetings
    參與設計會議
  4. Monitoring the Design
    設計監控
  5. Adjusting the Cost Estimates and Reconciling
    估算概算調整及檢討
  6. Comparing alternatives
    替代方案的比較
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Need for Pre-construction Estimates 為何需要概算

  1. Knowing the costs for investment decisions: 
    知道成本造價以作投資決定
    • Calculating land bid price 
      計算買地投標價
    • Calculating acceptable rental 
      計算可接受的租金
    • Evaluating the feasibility of the investment 
      評估投資的可行性
  2. Establishing a project (development) budget 
    確定發展項目的投資預算
  3. Formulating a design brief which defines the scope and standard of the project 
    制定設計任務書,說明發展項目的範圍及標準
  4. Obtaining funding 
    獲取撥款
  5. Borrowing money from the bank 
    向銀行貸款
  6. Monitoring the design development to control the costs within budget 
    監控設計的深化以控制不超出投資預算
  7. Estimating fees 
    估算顧問費
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Best Time to Plan and Control the Costs 造價控制的最佳時機

  1. As early as possible during the development process 
    在項目發展階段中越早越好
  2. Better chances to make design changes to find a better solution 
    較有機會修改設計取得更好的方案
  3. To reduce abortive design costs 
    減少設計返工
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Different names of pre-construction cost estimates 概算的不同名稱

  1. Preliminary Indication of Costs 
    初步估算指標
  2. Preliminary Cost Estimates 
    概算
  3. Elemental Cost Estimate 
    功能分部概算
  4. Rough Indication of Costs 
    大約估算
  5. Cost Plans 
    成本計畫
  6. Cost Models (An American term) 
    成本模型 (美式用詞)
  7. Pre-tender Estimate 
    標底
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Cost Estimate, Cost Plan and Budget 概算、成本計畫及投資預算

  1. A Cost Estimate reflects the estimated costs of a current design 
    概算反映某個現有設計的估計造價
  2. A Cost Plan is a detailed cost framework for controlling future design 
    成本計畫乃控制將來設計的詳細造價框架
  3. A Budget is the maximum sum a Developer is willing and able to spend on a project 
    投資預算乃建設單位願意及有能力投資於某項目的最大金額
  4. A Cost Estimate for now, if satisfactory and approved, will become the Cost Plan for the future design 
    現行的概算(若滿意及獲批准) 便作為將來設計的成本計畫
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Ways to Calculate the Cost Estimates 計算概算的方法

  1. Estimates should be done using expedient methods, approximations and shortcuts to reduce estimating time and costs in order to afford more estimates 
    概算應以便捷的方法、框算和捷徑以減少編製的時間及費用以便能多做概算

  2. Cost per floor area estimates 
    按樓面積計算

  3. Cost estimates prepared by measuring the most significant cost parameters 
    按最有效應的造價參數計算

  4. Cost estimates prepared by measuring elemental quantities 
    按功能分部工程量計算

  5. Cost estimates prepared by measuring approximate quantities 
    按分項大約工程量計算

  6. Cost estimates prepared by pricing the bills of quantities ready for issuance or already issued for tendering 
    按工程量清單計算

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Estimating Motto 四字真言

  1. From big to small 
    由大到小

  2. From rough to fine 
    從粗到細

  3. Focusing on the important 
    重點出擊

  4. Making bold assumptions 
    大膽假設

  5. Verifying carefully 
    小心求証

  6. Comparing with the unlike 
    觸類旁通

  7. Conducting self checking 
    自我覆核

  8. Reconciling with the previous 
    瞻前顧後

  9. Empathizing with the Client 
    設身處地

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Cost Parameters 造價參數

  1. Floor Area 
    樓面面積

  2. Ground Area and Roof Area 
    地、屋面面積

  3. External Elevation Area 
    外立面面積

  4. External Area 
    室外面積

  5. Number of equipment 
    台數

  6. Refrigeration Tonnage 
    冷噸

  7. Other elemental quantities 
    其他功能分部工程量

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Cost Geometry 造價幾何

  1. Appreciating which cost portions should bear more direct proportions to each parameter 
    瞭解那部份的成本內容與那個造價參數有較直接的比例關係

    Without basement

    Basement

  2. Appreciating how changes in the size and shape of a building would change the cost proportions 
    瞭解樓宇的大小及形狀的變化如何影響造價的分佈

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Building up Composite Rates組合單價的測算

  1. Using composite rates to simplify measurement of details
    用組合單價來簡化細項的計算

  2. Allowance in quantities or rates for unmeasured items
    數量或單價內要考慮不另行計算的內容
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Source of Data 資料來源

  1. Quantity Factors: 
    ​含量
    • Other Projects 
      其他工程
    • Analysis by sampling 
      ​抽樣測算
  2. Rates: 
    ​單價
    • Tender Prices 
      投標價
    • Final Account Prices 
      結算價
    • New Enquiries
      詢價
  3. Cost Analysis of Other Projects 
    其他工程項目的造價分析
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Element 功能分部

  1. An element is a part of a building which serves the same function for different buildings irrespective of the materials and design used, and which costs can easily be separated from others 
    功能分部乃樓宇內不論所用的材料或設計是什麽通常都是在不同的樓宇有同一功能的組成部份,而其計價可容易與其他部份分開的
  2. Classifying the costs of a building (or other construction) into elements would facilitate: 
    ​把樓宇(或其他建設)的造價按功能分部分拆可利於:
    • Comparison of the costs of different design options serving the same elemental function 
      達到同一功能的不同設計方案按功能分部的造價比較
    • Comparison with costs of other projects by elements; 
      按功能分部與其他發展項目的造價比較
    • Rationalizing the budget allocation between different elements for better use 
      把投資按不同功能分部更合理地分配使用
    • Quicker estimating based on elemental quantities which are easier to measure 
      使用較易計算的功能分部數量加快估算
    • Analysis of data for different projects on the same basis and classification 
      以同一的基準及分類分析不同項目的資料
  3. Different QS practices and ArchSD have different elemental classifications 
    不同的測量師事務所及建築署有不同的功能分部分類方法
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Element groups (example) 功能分部裙組(例子)

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Builder’s Works / Structure and Fabric樓房土建 / 結構及框架

  1. Foundation piling
    基樁
  2. Foundations
    基礎
  3. Basement bottom and sides
    地下室底板及外牆
  4. Structure
    結構
  5. External Elevations (External Walls, External Wall Finishes, Windows, Curtain Walls)
    外立面(外牆、外飾面、窗、幕牆)
  6. Internal Walls and Partitions
    內間斷
  7. Doors
  8. Roller Shutters and Fire Shutters
    捲簾
  9. Roof Finishes
    屋面
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Finishes and Fittings樓房裝飾

  1. Floor Finishes
    樓地面
  2. Internal Wall Finishes
    內牆面
  3. Ceiling Finishes
    天棚
  4. Signs, Fixtures and Sundries
    標誌、固定裝置、雜項
  5. Furniture
    傢具
  6. Sanitary Fittings
    潔具
  7. Lighting Fittings
    燈具
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Building Services樓房機電安裝

  1. Water Supply
    給水
  2. Above-ground Drainage
    地上排水
  3. Fire Services
    消防
  4. Sewage Treatment
    污水處理
  5. Pool Filtration Plant
    泳池過濾系統
  6. Fountain
    噴泉
  7. Gas
    燃氣
  8. Heating, Ventilating and Air-conditioning
    暖通空調
  9. Electrical
    電氣
  10. Security, Telephone and Public Address
    保安、電話及廣播系統
  11. Lifts
    電梯
  12. Escalators
    電扶梯
  13. Gondola
    擦窗機
  14. Turntable
    旋轉台
  15. Kitchen Equipment
    廚房設備
  16. Special Equipment
    特殊設備
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Site and External Works前期及外圍工程

  1. Demolition
    拆卸工程
  2. Site Formation
    場地平整
  3. Retaining Structures
    擋土牆
  4. Dewatering
    降水
  5. Underground Drainage
    地下排水
  6. Utilities
    機電主管道
  7. Boundary Walls
    圍牆
  8. Ancillary Structures
    構築物
  9. External Paving
    路面
  10. Landscaping
    園林綠化
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Profits and Attendance on Sub-Contractors and Suppliers分包管理配合費

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Preliminaries開辦經營費

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Design Contingencies / Design Development Allowance設計深化增項預留費

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Construction Contingencies施工不可預見費

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Developer’s Soft Costs建設單位其他費用

  1. Land Costs and Premium
    地價及土地使用費
  2. Evacuation Costs
    拆遷補償費
  3. Costs of Capacity Upgrading, Diversion, Connection and Installation of Utilities
    市政增容費、改道費、接駁費及初裝費
  4. Work outside the Site Boundaries
    紅線外工程費
  5. Production and Process Equipment, Supermarket Stalls, Showcases
    生產工藝設備、超市貨架、專櫃
  6. Operating, Office and Back of House Furniture and Equipment
    營業、辦公及後勤傢俱及設備
  7. Survey and Design Fees, Expenses and Site Staff Costs
    勘察設計費、開支及駐現場代表費
  8. Site Supervisory Costs
    施工監理費
  9. Pre-Opening Expenses, Administration Costs and Working Capital
    開幕前費用、經營費用及流動資金
  10. Finance and Legal Expenses
    財務和法律上的費用
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Contents of Cost Estimate 概算的內容

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Grand Summary: 大匯總

  1. Total Cost of Each Section of the Project 
    建設項目每區域的總造價
  2. Floor Area of Each Section 
    每區域的樓面面積
  3. Unit Cost per Floor Area 
    ​每區域的樓面面積的單價
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Descriptions: 編製說明

  1. Project Name 
    項目名稱
  2. Project Location 
    項目地點
  3. Scope of the Estimate 
    估算範圍
  4. Areas: 
    面積:
    • Construction Floor Area / Covered Floor Area 
      建築面積/有蓋樓面面積
    • Ground Area 
      地面面積
    • Site Area 
      地塊面積
    • Lease Gross Floor Area 
      地契樓面面積
    • (Non-)Accountable GFA 
      可豁面/不豁面地契樓面面積
    • Bay Window Area 
      窗臺面積
  5. Basis of the Estimate:
    估算依據:
    • Drawings used 
      依據的圖紙
  6. Price Levels:
    價格水準:
    • Current Prices 
      現行價格
    • Fluctuations from Date of Preparing the Estimate to Tendering 
      由編製到招標的價格浮動
    • Fluctuations from Tendering to Completion of Construction 
      由招標到竣工的價格浮動
  7. Outline Specification of Design and Materials 
    分部設計及用料大綱
  8. Finishes Schedule 
    裝飾表
  9. Exclusions 
    不包項目
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Elemental Summary of each Section: 每區域的功能分部匯總:

  1. Floor Area of the Section 
    該區域的樓面面積
  2. Total Cost of Each Element of the Section 
    該區域的每功能分部總造價
  3. Unit Cost per Floor Area 
    每功能分部的樓面面積單價
  4. % Proportion of each Element 
    每功能分部所占百分比
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Detailed Build-up: 具體項目:

  1. Arranged by Elements 
    按功能分部排列
  2. ​Item Reference 
    編碼
  3. Descriptions 
    子目說明
  4. Quantities, rounded off to tens or thousands 
    拾位元或百位元整數的數量
  5. Rates, round off to two significant figures 
    兩個有效數字的單價
  6. Extension, rounded off 
    萬位元整數的合價
  7. Elemental Totals 
    功能分部總價
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Possible additional information: 可能的附加資料:

  1. Elemental Quantities
    功能分部數量
  2. Unit Costs per Elemental Quantities 
    ​功能分部單價
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Rates 單價

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Adjustments to Published Unit Costs per Floor Area

  1. Some Consultant QS firms publish unit costs per floor area for public information
  2. When using these unit costs, care should be exercised to understand the scope of inclusions and exclusions, and their applicability
  3. The General Practice Division of the Hong Kong Institute of Surveyors has published a Building Cost Pro-Forma for Private Sector Developments in Hong Kong.pdf
  4. This should serve as a useful checklist, but the items and figures suggested there should be verified for individual project
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Preparing Cash Flow Tables 編製資金流量表

  1. Using S-curve:
    用S線圖:
    • Divide the horizontal axis into parts equal to the number of months of construction
      將水平軸按施工的月份數目分段
    • For each month, interpolate from the curve the cumulative payment percentage on the vertical axis
      利用曲線找出每個月在垂直軸相對的累計進度百份率
    • Find the monthly payment percentages from the cumulative percentages; and
      用累計進度百份率計出每月進度百份率
    • Apply the monthly payment percentages to the total cost to obtain the monthly payment values
      每月進度百份率乘總造價得出每月進度款
  2. Using Bar Chart Programmes:
    用條形進度計畫表:
    • Following the bar chart programme, assign the monthly payment percentages for each activity bar
      跟從條形進度計企劃表,對每條活動配以每月進度百份率
    • Apply the monthly payment percentages to the total cost of each activity bar to obtain the monthly payment values
      將每月進度百份率乘該條活動的造價得出每月進度款
    • Ensure that the total of each activity bar is correct
      確保每條活動的合計無誤
  3. Separating stage payments
    要把分期付款及大型採購分列
  4. Separating Retention
    要把保修金分列
  5. Watching out time lag between work carried out, payment certification and honouring of payment
    注意施工、批款及付款的時間差
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Reconciliation概算變化的解釋

  1. Presented vertically: 
    垂直列出:
  2. Presented side by side: 
    並排表示:
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Pre-tender Estimate 標底

  1. Pricing the Bills of Quantities before formal issue of tender documents or before return of tenders 
    在發出招標檔前或在回標前利用工程量清單套取單價計價
  2. To check whether the cost so priced is within the previous estimate and the Budget 
    以檢查得出的總價是否仍在前概算或投資預算之內
  3. Making design changes and issuing tender addendum to keep the costs within the Budget 
    作出設計修改並發出招標檔變更通知以便維持造價在投資預算之內
  4. For checking against tenders returned for reasonableness 
    用作評核回標價的合理性
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Procurement Strategy 採購策略

Procurement Strategy 採購策略 KCTang Sat, 20/12/2014 - 22:17
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Why Contract Out? Why Call for Tenders?

  1. Find someone to do it for you
  2. Someone:
    • More capable
    • Statutorily qualified
    • Less costly
  3. Accountability in case of joint venture
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When to Decide?

  • As early as when the first project programme is developed
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Which Types of Contractual Arrangement?

  • Traditional or special?
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Choices of Contract Types based on 合同形式的選擇

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Contract Scope按承包範圍分

  1. Design
    設計
  2. Build
    施工
  3. Design and build
    設計和施工
    • 優點:
      • 工程太簡單不必請建築或工程師。
      • 取得承包方特有而一般的建築或工程師沒有的特殊設計優點。
      • 取得承包方特有的建造方法或產品。
      • 設計及施工時間可重疊,相應縮短了工期。
      • 總的來說可省一些設計費。
      • 由承包方單一負責,而減少多方參與責任不清的程度。有時這個好處被視為最大優點,使到根本不存在上述2及3點的工程都採用。
      • 總造價較有保証。
      • 可規定成品能滿足意向功能,此乃高於一般只需行使合理技能的標準。
      • 在全包的情況下,承包方的索賠機會較少。
    • 缺點:
      • 發包方的要求寫得太死,承包方沒有自由設計的空間。
      • 發包方的要求寫得太鬆,不能表達到預期的成果,或有空間給承包方索賠。
      • 發包方不能隨意改動要求。
      • 發包方對設計的改動要求,是屬於原要求範圍內還是超出範圍,往往會有爭議。
      • 真的超出範圍而需計算增加費用時,因可能要與一個尚未設計好便改動了的方案比較,難度比較大。減內容亦有類似的問題。
      • 鑑於總造價是基本封頂的,發包方會傾向在具體設計時增加內容及取最高的標準,令承包方吃虧。
      • 鑑於總造價是基本封頂的,承包方會傾向在具體設計時盡量省料及取最低的標準,令發包方吃虧。
      • 雙方合作不愉快時,爭議反為多了。
  4. Design, build and operate
    設計、施工、營運
  5. Management contracting
  6. Construction manager
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Pricing Basis按投標基礎分

  1. Based on firm bills of quantities, with reference to drawings and specification
    按確定工程量清單,參閲圖紙及規範
  2. Based on provisional bills of quantities, with reference to drawings and specification
    按暫定工程量清單,參閲圖紙及規範
  3. Based on drawings and specification, without bills of quantities
    只按圖紙及規範,不含工程量清單
  4. Based on pre-priced schedule of rates, competing on adjustment percentage
    按預設單價表,競爭調整費率
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Pricing Nature按標價形式分

  1. Lump sum total, with unit rates
    總價報價,輔以單價
  2. Rates only, without total
    單價報價,無總價
  3. Percentage
    費率報價
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Degree of Risks按風險程度分

  1. Fixed price
    固定價
  2. Price with fluctuation
    可調價
  3. Cost plus fee (lump sum fee, fixed percentage fee, scaled percentage fee, sharing)
    成本加服務費(一筆過、固定費率、遞減費率、分成)
  4. Ceiling price / Guaranteed maximum price
    封頂價
  5. Demarcation between Costs and Fee 
    成本與服務費的劃分
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Funding Arrangement

  1. All funded by the employer
  2. Private finance initiative – public-private partnerships
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How to Package Contracts?

  1. Optimum balance between the time required to complete every design and the time required to construct
  2. Optimum balance between single line responsibility and more control over choosing sub-contractors and suppliers
  3. Specialist works by specialist contractors/sub-contractors
  4. Responsibility for delivery time and wastage to be watched out if nominated supply contracts are used
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Usual Contract Packaging 總包分包的分拆

  1. Demolition Contract
    拆卸工程
  2. Piling Contract
    基樁
  3. Main Contract
    主合同
  4. Sub-Contract
    分包合同
  5. Supply Contract
    供應合同
  6. Other Direct Contracts
    其他獨立合同
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Which Form of Contract?

  1. Private or public?
  2. Domestic or international?
  3. Standard form or specially drafted?
  4. Old or new versions?
  5. With how much amendments?
  6. How harsh?

 Form of Contract

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Risks Sharing 風險的分擔

  1. Soil conditions
    土質
  2. Underground obstructions
    地下障礙物
  3. Phased possession of site and completion
    分階段交付工地及竣工
  4. Time for completion
    工期
  5. Liquidated damages
    誤期賠償
  6. Grounds for extension of time
    工期延長的許可原因
  7. Grounds for monetary claims
    索賠的許可原因
  8. Insurances and bonds
    保險及擔保
  9. Defects liability period / defects rectification period
    保修期
  10. Payment terms
    付款辦法
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Guaranteed Maximum Price 封頂價

Guaranteed Maximum Price 封頂價 KCTang Sat, 20/12/2014 - 22:35
  1. What does “guaranteed maximum price” mean?

    • It means the maximum price payable to the Contract after completion of the Works and defects rectification.
  2. Who is to bear when the final price is more than the guaranteed maximum price?
    • The Contractor.
    • From the Contractor’s point of view, Individual cost overruns must be allowed to be balanced by individual cost savings.
  3. Who is to gain when the final price is more than the guaranteed maximum price?
    • The Employer. The Contractor may have a share.
  4. Why a guaranteed maximum price is required?
    • The Employer wants certainty in budgetary control.
  5. When would a guaranteed maximum price arrangement be feasible?
    • The design is not fixed yet such that the Contractor can design to within the guaranteed maximum price
    • The design is complete but the Contractor can provide better alternatives.
  6. What kinds of employers would prefer a guaranteed maximum price contract?
    • Non-professional developers and owners.
    • Those who want certainty in budgetary control.
    • Those who want to seek excellence in design and construction management.
  7. What types of contractors are qualified for a guaranteed maximum price contract?
    • Those who have design expertise.
    • Those who have site management team understanding the risks of guaranteed maximum price contract.
  8. Why are guaranteed maximum price contracts used more in the United States?
    • The Contractor is on-board upon the inception of early design stage.
    • The Contractor is responsible for the design or the development of design.
    • The Architect only provides schematic design or design intent.
  9. When can the guaranteed maximum price be varied?
  10. What should constitute a Variation?
    • “A material change in the nature, type, quality or quantity of any goods, materials or workmanship specified in the GMP Works Contract. A change to any work including advance preparation and procurement works which has been commenced or completed at the time the variation is issued. A change to any specified sequence, timing (including acceleration measures) or method of construction. Every case excludes Design Development” ???
  11. What is design development?
    • Development of the brief or design intent into working details for construction.
    • “Any development or progress of the design of the Works from the state of the design set out in the Contract towards finalization in a form suitable for construction and includes the clarification, elaboration, supplementing and/or augmenting of any method statement, drawing, specification or any other document or thing pertaining to such design.” ???
  12. What is design development instruction?
    • “Any Instruction issued by the Management Contractor to the GMP Works Contractor in relation to Design Development including the provision of drawings, details, or information necessary for the GMP Works Contractor to carry out and complete the Works which instruction shall not initiate an adjustment to the GMWP and shall not constitute a Variation.” ???
    • “The Design Development process shall not include the introduction of Variations as defined, such Variations shall only be ordered by GMWP Instructions.” ???
  13. How should the Contractor tender and price for guaranteed maximum price contracts?
    • Make sure that there is room for cost saving from the tendered design.
  14. How can the Contractor survive after tender award?
    • Make sure that there is room for cost saving from the tendered design.
  15. Why is design development important to the Contractor?
    • Put the design under the Contractor’s control to ensure that the final design, materials, workmanship and method would not exceed the guaranteed maximum price.
  16. Should the Contractor want for the design details to be provided by the Architect?
    • No, the chances are the Architect will want to perfect and upgrade the design such that the costs will become higher.
  17. How should the difference between a prime cost sum and its initial awarded sum or its final expenditure be treated?
  18. How should the guaranteed maximum price be adjusted for direct loss and/or expense, liquidated damages, acceleration, costs of defects rectification, and the Contractor’s alternative design proposals, provisional quantities, p.c. rates?

Demarcation between Costs and Fee

Demarcation between Costs and Fee KCTang Fri, 12/01/2018 - 13:55

22nd August, 2005

For cost plus contracts, arguments can easily arise as to whether an expenditure should be treated as part of the reimbursable costs or part of the fees. Essentially those items which can be carried out by the head office of the Contractor rather than on site may be regarded as part of the office overheads and therefore as part of the fee rather than costs. Contractors would try to argue in reverse. Items which need careful descriptions in the cost plus contracts to avoid arguments include:

  1. Types and extent of design responsibilities.

  2. Types and number of head office supervisory, technical and clerical staff to be employed and deemed to be part of the fee.

  3. Types and number of supervisory, technical and clerical staff to be specifically provided for the Contract and chargeable as costs.

  4. Expenses in connection with sub-letting which can be done by the tendering and purchasing department of the Contractor at the head office or alternatively by a dedicated team, such as sourcing tenderers, preparing tender documents, inviting tenders, analysing tenders, preparing contracts.

  5. Types and extent of attendance of head office administrative nature rather than physical work upon sub-contractors and suppliers.

  6. Effects of fluctuations in the costs of labour, materials or plant, exchange rates of currencies, or Government taxes, fees and charges.

  7. Interests on money, finance charges, patent right and royalty.

  8. Entertainment expenses for customers and visitors, customary mid-year and year end gift expenses, expenses in connection with ceremonies at commencement of works, completion of works or part thereof, celebration and obituary offering expenses.

  9. Types and extent of taxes, fees or charges.

  10. Costs in connection with the obtaining of permits, approvals, consents from Government, local authorities and statutory undertakers.

  11. Import duties, custom clearance, administrative handling charges.

  12. Types and extent of usual preliminaries to be deemed to be part of the fee.

  13. Extent of Contractor's site office expenses including costs of stationery, paper, accounts, printing, fuels, office equipment.

  14. Site transportation vehicles including fuel charges, insurances and license fees.

  15. Extent of Contractor's communication expenses such as postal charges, telex, telegram, long distance calls, etc.

  16. Contra-charges imposed by the Builder for loading and unloading of materials, use of lifts and hoists, removal of rubbish, use of water and electricity, damage by one trade upon the other

  17. Acceleration and overtime to catch up programmes.

  18. Preparation of periodic reports and programmes.

  19. Taking of progress photographs.

  20. Provision of portable safety measures, first-aid kits.

  21. Accidental damage to utilities, roads and footpaths.

  22. Types and extent of protection, cleaning, rubbish removal and maintenance work during construction.

  23. Watchmen.

  24. Setting out team and responsibility.

  25. Types and extent of insurances. Deductibles under insurance policies.

  26. Types and extent of common plant, tools, etc.

  27. Extent of scaffolding, working platform at high levels, temporary supports, etc.

  28. Extent of hoardings, screens, protective covering to be provided.

  29. Establishment, operation and removal of storage sheds, workshops, offices, latrines.

  30. Off-site storage.

  31. Use of telephone, water and electricity. Provision of temporary plumbing, electrical installation, etc.

Tender Documentation 編寫招標文件

Tender Documentation 編寫招標文件 KCTang Wed, 24/12/2014 - 15:50

Overview 概论

Overview 概论 KCTang Sat, 20/12/2014 - 23:21
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Purpose of Tender Documentation

  1. To convey clearly to the tenderers what are to be required to be done during tendering and after the award of the contract such that the awarded contract sum is sufficient for the Contractor to finish the job as expected without unexpected claims
    • complete
    • free of ambiguity
    • free of discrepancy
    • full disclosure and warning of matters which may affect the prices and time
  2. To provide for a full set of terms and conditions ready for turning into a contract without loose ends
  3. To afford provisions to deal with changes
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Tender Documents 招標文件

  1. Broader meaning
    廣義:
    • The complete set of documents issued for tendering, including Tender Drawings
      用來招標的全套文件,包括招標圖紙.
  2. Narrower meaning
    狹義:
    • Documents issued for tendering, other than Tender Drawings
      用來招標的,招標圖紙以外的文件
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Generic Composition of Tender Documents 招標文件的基本組成部分

  1. Conditions of Tendering / Conditions of Tender / Instructions to Tenderers 
    投標條件 / 投標條件 / 投標須知:
    • to describe rules and procedures to be followed during tendering. 
      用來說明投標時的規則及程式
  2. Form of Tender 
    ​回標書:
    • for the Tenderer to state his offer
      給投標者填寫他的建議.
  3. Form of Contract
    ​合同書及條款:
    • to desribe terms and conditions to be followed when peforming the Contract;
    • may refer to some Standard Forms of Contract, and not actually include a copy in the Tender Documents; and
    • where a Standard Form of Contract is used, the Tender Documents should include any amendments or special conditions to the standard.
  4. Specification or Employer's Requirements or Brief
    工料規範或發包方要求:
    • to specify the work, materials and workmanship desired by the Employer;
    • may include a section on Preliminaries or General Requirments, and other sections on materials and workmanship, those other sections are collectively called "Technical Specification" "技術要求";
    • may refer to some Standard Specification, and have Particular Specifications to describe deviations from or supplements to the standard; and
    • may use a General Specification, and have Particular Specifications to describe deviations from or supplements to the general.
  5. Pricing Schedules
    計價單:
    • for the Tenderer to give a detailed build-up of his tender sum in any of the following forms:
      • Bills of Quantities
        工程量清單;
      • Summary of Tender;
      • Schedule of Rates or Schedule of Quantities and Rates;
      • Schedule of Works; and
      • Quotation.
  6. Tender Drawings
    招標圖紙:
    • to show the design, dimensions, shape and locations of the work and choice of materials and workmanship.
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Tender Booklet

  1. It is better to call those parts of the Tender Documents excluding Tender Drawings as "Tender Booklet" because these documents are usually bound into a booklet.
  2. Tender Documents = Tender Booklet + Tender Drawings.
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Typical Contents of Tender Booklet

  1. Conditions of Tendering / Conditions of Tender / Instructions to Tenderers.
  2. Form of Tender with various kinds of appendices.
  3. Appendices to the Form of Tender (if not included in or appended to the Specification or Preliminaries):
    • Pro-forma Surety Bond;
    • Form of Warranty (for Sub-Contracts);
    • Statement of all convictions or no convictions under the Immigration Ordinance (Cap. 115) for last <> years;
    • Statement of all convictions or no convictions under the Factories and Industrial Undertakings Ordinance (Cap. 59) for last <> years;
    • Statement of all convictions or no convictions under the Employment Ordinance (Cap. 57) for last <> years;
    • Statement of involvement in arbitration or litigation in the last <> years or foreseeable in the next <> months;
    • Declaration of no conflict of interests; and
    • Declaration of no collusion.
  4. Amendments to the Standard Form of Main Contract / Special Conditions of Contract.
  5. Amendments to the Standard Form of Sub-Contract / Special Conditions of Sub-Contract.
  6. Specification
    工料規範:
    • Preliminaries (if not included as Bill No. 1 in full);
    • Technical Specification
      技術要求:
      • General Specification;
      • Particular Specification; and
    • Technical Schedules.
  7. Preambles to Bills of Quantities (if not included as Bill No. 2).
  8. Bills of Quantities:
    • Bill No. 1 – Preliminaries (full descriptions or headings only);
    • Bill No. 2 – Preambles;
    • Bill No. 3 onwards - Measured Works Sections;
    • Prime Cost and Provisional Sums;
    • Dayworks Schedule or Daywork Rates Schedule;
    • General Summary.
  9. Schedule of Rates or Schedule of Quantities and Rates (if without Bills of Quantities).
  10. Summary of Tender (if without Bills of Quantities).
  11. Schedule of Drawings.
  12. Appendices (references to these Appendices should be given in the appropriate parts of the Tender Documents):
    • Insurance policies taken out by the Employer;
    • Property Management’s house-rules (if not already described in the Specification and Preliminaries); and
    • Main Contractor’s house-rules (for Sub-Contract tendering).
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Contract Specific Contractual Provisions (other than the Usual Standard Provisions)

  1. Names of the Employer and Consultants
  2. Site locations, site restrictions, permissible working hours
  3. Liability for ground conditions and underground obstructions
  4. Scope of the Works, nominated sub-contracts and supply contracts, specialist domestic sub-contracts, previous contracts, concurrent contracts, works by public authorities, demarcation, relationship, co-ordination and attendance
  5. Scope of contractors’ design, statutory submissions, maintenance and warranties
  6. Time for possession, entry, commencement, completion; allowances for anticipated delays; criteria for certifying completion
  7. Damages for delay; qualifications by sub-contractors on the level of damages
  8. Defects liability period, maintenance period
  9. Form of Main Contract and Sub-Contracts to be used; special conditions
  10. Excusable events and compensable events
  11. Payment terms, advance payment, deposit payment, period of interim certificates, grace period for honouring payments, retention percentages, maximum retention, time to release retention
  12. Drawings and Specification to be used
  13. Pricing basis, with or without bills of quantities, lump sum or remeasurement
  14. Any adjustments for cost fluctuations
  15. Liability for insurance of the Works, third party, employees, construction plant and temporary buildings; limits of indemnity; levels of excesses / deductibles
  16. Amount of surety bond
  17. Phasing requirements and consequential effects on completion certificate, damages for delay, retention, defects liability, maintenance obligations, insurances, bond, etc.
  18. Specific requirements on hoardings, Employer’s site office
  19. Responsibilities for source and consumption of temporary water, lighting and power
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Considerations when dealing with Drawings

  1. How detailed should the Tender Drawings be when the design is to be further developed by the Contractor? The significances of being too detailed or too vague.
  2. Distinguish between:
    • Drawings actually issued to tenderers
    • Drawings available for inspection
    • Standard Drawings
    • BQ (Taking-off) Drawings
    • Tender Drawings
    • Preliminary design drawings to be submitted by the tenderers
    • Contract Drawings
    • Shop Drawings
    • Installation Drawings
    • Field Drawings
    • Working Drawings / Construction Drawings
    • AI Drawings
    • As-built Drawings / Record Drawings
  3. How to manage these drawings to avoid discrepancies
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Usual Deficiencies in Tender Documentation

  1. Incomplete design
  2. Inconsistent terminology
  3. Discrepancies
  4. Conflicts
  5. Imprecise descriptions
  6. Errors and omissions
  7. Too complicated specifications
  8. Not procurable
  9. Outdated provisions
  10. Insufficient ground investigation
  11. Government approval and consent not in time
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Conditions of Tendering

Conditions of Tendering KCTang Sat, 20/12/2014 - 23:29
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Alternative names

  1. Conditions of Tendering
  2. Conditions of Tender
  3. Instructions to Tenderers
  4. Notes to Tenderers
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Purpose

  • To describe rules and procedures to be followed during tendering
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Usual contents

  1. Tender Documents issued
  2. Obligations to check sufficiency of pages
  3. Obligations to raise queries before tender return
  4. Tender submissions required
  5. Mode of submission of tenders, sealed envelope, labels, marked confidential
  6. Return of Tender Drawings
  7. Treatment of unauthorized alteration or erasure to the text of the Tender Documents
  8. Treatment of qualifications
  9. Treatment of alternative tenders
  10. Unpriced items deemed included
  11. Currency to be used
  12. Statutory qualifications to contract
  13. Treatment of errors
  14. Not bound to accept the lowest or any tender
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Special contents

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Percentage adjustments

  1. The calculation of any percentage adjustments to the rates and prices shall be based on the all-in rates without subtracting any prime cost rates which may be included therein. The prime cost rates included in the all-in rates subject to percentage adjustments shall remain unchanged.
  2. All Prime Cost Sums and Provisional Sums shall be excluded from any corresponding percentage adjustment calculations as a result of any overall adjustment to the Tender Sum.
  3. Reason: ​All prime cost rates, Prime Cost Sums and Provisional Sums shall not be adjusted for any percentage adjustments to the Tender Sums initiated by the Tenderers, e.g. when offering discounts.
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​Rationalization of Unreasonable Rates and Prices

  1. The Tenderer may be required to rationalize unreasonable rates and prices by replacing them with more reasonable rates and prices for all purposes of the Contract. The amounts of the affected items shall be re-calculated. The Tender Sum shall remain unchanged. The difference between the corrected total and the original Tender Sum shall be treated as an arithmetical error as Clause <> hereof, unless it is specifically agreed that this shall be treated as a lump sum adjustment without affecting the unit rates.
  2. Reason:
    • In case of the presence of unreasonably high or low rates in a contract, the following will happen:
 

Employer

Contractor

Unreasonably high rates

 

 

  • Variation addition

Unreasonable cost increase

Very good profit (favourable)

  • Variation omission

Higher cost reduction (favourable)

Unreasonable income reduction

Unreasonably low rates

 

 

  • Variation addition

Lower cost increase (favourable)

Unreasonable loss

  • Variation omission

Unreasonable cost reduction

Lower cost reduction (favourable)

  • The usual practice is to identify unreasonable rates and prices and agree more reasonable rates and prices to be used for pricing variation additions and omissions, and the Tender Sum should remain unchanged. 
  • The rationale is that, in spite of any over or under pricing in the Tender Sum, when more reasonable rates are used for valuing changes whether it be an addition or an omission, the above unreasonable situations would not arise.
  • However, this practice has the following issues:
    • Some people may argue that the original rates and prices should be used for omissions, while the more reasonable rates and prices should be used for the additions only. Tenderers would argue for this when the original rates and prices were unreasonably low. Employers would argue for this when the original rates and prices were unreasonably high.
    • When the unreasonably priced item is a provisional quantity item, care should be exercised to describe whether the more reasonable rate is to be used for the increase to or decrease from the provisional quantities (i.e. price the original provisional quantity at the original rate first) or is to be used for the complete remeasurement.
    • For interim payment valuation, the original rates and amounts are still used, giving an impression of either over or under payment.
  • By replacing the unreasonable rates and prices with more reasonable rates and prices for all purposes of the Contract, the rationale of the usual practice is maintained, but people no longer need to refer to the unreasonable rates and prices any more, and the issues mentioned above would not persist.
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​​​​Short-listing

  1. The Employer reserves the right to short-list tenders for further tender clarifications, interviews and negotiation without the obligation to invite all tenderers to do so.
  2. Reason: This avoid the challenge by tenderers not on the short-list as to why they are not similarly invited.
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Clause headings of Housing Authority's Notes to Tenderers, February 2013 Edition

  1. Opening of Tenders
  2. Tender Evaluation Criteria
  3. Acceptance of Tender
  4. Sureties or Security
  5. Review Body on Bid Challenges
  6. Other Matters
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Clause headings of Housing Authority's Special Conditions of Tender, February 2013 Edition

  1. Type of Tender
  2. Tender documents issued
  3. Documents available to tenderers
  4. Tenderers alterations, qualifications and modifications
  5. Schedules to the Form of Tender
  6. Submissions required with tender
  7. Other submissions required with tender
  8. Inspection of documents etc.
  9. Inspection of Site
  10. Joint Venture Guarantees
  11. Special terms of payments for precast concrete façade construction
  12. Unreasonable low bids
  13. Erratic Pricing
  14. Sub-contractor Registration Scheme
  15. Dispute Resolution Advisor (DRAd) System
  16. Housing Construction Management Enterprise System (HOMES)
  17. Wall Tiling Works
  18. Trip Ticket System
  19. Construction Waste Disposal Charging Scheme
  20. Statutory Minimum Wage
  21. Disclosure of Information (Bid Challenges)
  22. Conflict of Interest (Housing Authority member)
  23. Warranty Against Collusion
  24. Evaluation of Tender
  25. Incorporation of Technical Proposals into the Contract
  26. Other matters
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Form of Tender

Form of Tender KCTang Sat, 20/12/2014 - 23:31

Table of Contents

  1. Purpose
  2. Usual contents
  3. Note
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Purpose

  • For the Tenderer to state his offer
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Usual contents

  1. Tender Sum
  2. Alternative tenders or options
  3. Discrepancies between words and figures
  4. Completion times
  5. Confirmation of acceptance of amendments to the Standard Form of Main Contract and Sub-Contract / Special Conditions of Contract and Sub-Contract
  6. Confirmation of incorporation of tender addenda
  7. Confirmation of compliance with pro-forma surety bond
  8. Tender validity period 投標有效期
  9. Implications of withdrawal before expiry of the tender validity period (Complication of counter-offers during negotiation vs terms demanding irrevocable offer)
  10. Acknowledgement of acceptance constituting a binding contract
  11. Acknowledgement of temporary acceptance in the case of Nominated Sub-Contracts
  12. Acknowledgment of no obligation to award to the lowest or any
  13. Registered address (may be different from letter head)
  14. Signature of Form of Tender (name and position of signatory)
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Note

  1. If extension of time is not to be granted for inclement weather, the completion times to be stated in the Form of Tender or the Preliminaries should be in the form of "within <> calendar days (including Sundays and holidays and days of inclement weather) from the Date of <>".
  2. If extension of time is to be granted for inclement weather, the completion times to be stated in the Form of Tender or the Preliminaries should be in the form of "within <> calendar days (including Sundays and holidays) from the Date of <>".
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Form of Contract

Form of Contract KCTang Sat, 20/12/2014 - 23:46

Standard Forms of Contract for use in Hong Kong
香港的标准合同

 Old Private Forms of Building Contract

  • Drawn up by the Hong Kong Institute of Architects, the Royal Institution of Chartered Surveyors (Hong Kong Branch) and the Society of Builders, Hong Kong:

    • Agreement & Schedule of Conditions of Building Contract for use in the Hong Kong Special Administrative Region, First RICS (HK Branch) Edition 1986 (withquantities) incorporating up to Second amendments published in July, 1999 (SFBCwQ.1986(2ndAmend.July1999))
    • Agreement & Schedule of Conditions of Building Contract for use in the Hong Kong Special Administrative Region, First RICS (HK Branch) Edition 1986 (withoutquantities) incorporating up to Second amendments published in July, 1999 (SFBCnQ.1986(2ndAmend.July1999))
    • Sub-Contract for use where the Sub-Contractor is nominated under the Standard Form of Building Contract for Hong Kong, First RICS (HK Branch) Edition 1986incorporating up to Second amendments published in February, 2000

New Private Forms of Building Contract

  • Published by the Hong Kong Institute of Architects, the Hong Kong Institute of Construction Managers and the Hong Kong Institute of Surveyors:

    • Agreement & Schedule of Conditions of Building Contract for use in the Hong Kong Special Administrative Region, Private Edition – With Quantities, 2005Edition (SFBCwQ.2005)
    • Agreement & Schedule of Conditions of Building Contract for use in the Hong Kong Special Administrative Region, Private Edition – Without Quantities, 2006Edition (SFBCnQ.2006)
    • Agreement & Schedule of Conditions of Nominated Sub-Contract for use in the Hong Kong Special Administrative Region, 2005 Edition
  • The private forms may be purchased from the Hong Kong Institute of Surveyors, Suite 801, Jardine House, 1 Connaught Place, Central, the Hong Kong Special Administrative Region

Government Forms of Contract

MTR Corporation Ltd.'s Own Standard Forms

  • Conditions of Contract for Civil Engineering and Building Works Construction
  • Conditions of Contract for Design and Build
  • Conditions of Contract for E&M
  • Conditions of Contract for Major Works
  • Conditions of Contract for Minor Works
  • Conditions of Contract for Entrustment Works

Standard Form of Building Contract 2005/2006

Standard Form of Building Contract 2005/2006 KCTang Fri, 27/03/2015 - 16:51

Table of Contents

  1. Articles of Agreement
  2. Attestation
  3. The General Conditions
    1. 1  Interpretation and definitions
    2. 2  Contractor's obligations
    3. 3  Master programme
    4. 4  Architect's instructions
    5. 5  Documents forming the Contract and other documents
    6. 6  Statutory obligations
    7. 7  Setting out the Works
    8. 8  Materials, goods, workmanship and work
    9. 9  Intellectual property rights 
    10. 10  Contractor's site management team
    11. 11  Access for the Architect to the Works
    12. 12  Architect's representative
    13. 13  Variations, Provisional Quantities, Provisional Items and Provisional Sums
    14. 『14  [Not used]』
    15. 【14  Contract Bills】
    16. 15  Contract Sum
    17. 16  Materials and goods on or off-site
    18. 17  Substantial Completion and defects liability
    19. 18  Partial possession by Employer
    20. 19  Assignment and sub-letting
    21. 20  Injury to persons and property and indemnity to Employer
    22. 21  Insurance against injury to persons or property
    23. 22  Insurance of the Works
    24. 23  Possession, commencement and completion
    25. 24  Damages for non-completion
    26. 25  Extension of time
    27. 26  Delay recovery measures
    28. 27  Direct loss and/or expense
    29. 28  Notice of claims for additional payment
    30. 29  Nominated Sub-Contractors and Nominated Suppliers
    31. 30  Persons engaged by Employer
    32. 31  Facilities for statutory undertakers and utility companies
    33. 32  Certificates and payments
    34. 33  Surety bond
    35. 34  Antiquities
    36. 35  Determination by Employer
    37. 36  Determination by Contractor
    38. 37  Determination by Employer or Contractor
    39. 38  Fluctuations
    40. 39  Notices, certificates and other communications
    41. 40  Recovery of money due to the Employer
    42. 41  Settlement of disputes
  4. Appendix
  5. SCHEDULE 1 FORM OF SURETY BOND TO BE GIVEN BY THE CONTRACTOR TO THE EMPLOYER
  6. SCHEDULE 2 FORM OF WARRANTY TO BE GIVEN BY THE NOMINATED SUB-CONTRACTOR TO THE EMPLOYER IN CONSIDERATION OF NOMINATION
  7. SCHEDULE 3 FORM OF WARRANTY TO BE GIVEN BY THE NOMINATED SUPPLIER TO THE EMPLOYER IN CONSIDERATION OF NOMINATION
  8. Index to the General Conditions

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 expeditiously

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

 

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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.

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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

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The General Conditions

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

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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. #

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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.

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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.

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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.

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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.

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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.

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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”. #

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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.

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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. #

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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.

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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. #

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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.

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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. #

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『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. #

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【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.}

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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. #

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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.

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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. #

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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}.

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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. #

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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. #

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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. #

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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. #

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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. #

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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. #

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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. #

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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.

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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.}

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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

 

 

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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.

 

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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.

 

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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.

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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
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Draft Standard Form of Domestic Sub-Contract 標準自選分包合同草擬

Draft Standard Form of Domestic Sub-Contract 標準自選分包合同草擬 KCTang Fri, 26/12/2014 - 16:34

Draft Standard Form of Domestic Sub-Contract
標準自選分包合同草擬

CIC Taskforce Meetings and Snapshots of Draft
建造業議會專責小組會議及討論稿存照

基本工種標準自選分包合約指引 http://www.hkcic.org/files/eng/documents/publications/Guideline-SF-w.pdf

 

15/12/2014

Full draft of English version with language style only changed

英文版全稿(只改文句款式)

Standard Form of Domestic Sub-Contract - English (20141215a).pdf

20/10/2014

Full draft of English version
and Changes to draft dated 26/9/2014

英文版全稿
及對26/9/2014稿的修改

Standard Form of Domestic Sub-Contract - English (20141020a).pdf
Standard Form of Domestic Sub-Contract - English (changes from 20140926 to 20141020).pdf

14/10/2014

32nd Meeting

第卅二次會議

 

26/9/2014

Full draft of English version with changes to draft dated 14/1/2014

與14/1/2014稿對照的英文版全稿

Standard Form of Domestic Sub-Contract - English (Draft with changes 20140926a).pdf

14/1/2014

Full clean drafts of English version and Chinese version

英文版及中文版全淨稿

Standard Form of Domestic Sub-Contract - English (Clean Draft 20140114a).pdf
Standard Form of Domestic Sub-Contract - Chinese (Clean Draft 20140114a).pdf

14/1/2014

Full drafts of English version and Chinese version with changes to draft dated 24/1/2013

與24/1/2013稿對照的英文版及中文版全稿

Standard Form of Domestic Sub-Contract - English (Draft with changes 20140114a).pdf
Standard Form of Domestic Sub-Contract - Chinese (Draft with changes 20140114a).pdf

13/1/2014

31st Meeting

第卅一次會議

 

11/1/2014

Full drafts of English version and Chinese version with changes to draft dated 24/1/2013

與24/1/2013稿對照的英文版及中文版全稿

Standard Form of Domestic Sub-Contract (Draft 20140111e).pdf
Standard Form of Domestic Sub-Contract (Draft 20140111c).pdf

3/1/2014

Full draft of English version with changes to draft dated 24/1/2013

與24/1/2013稿對照的英文版全稿

Standard Form of Domestic Sub-Contract (Draft 20140103e).pdf

16/12/2013

30th Meeting

第卅次會議

 

11/11/2013

29th Meeting

第廿九次會議

 

28/10/2013

28th Meeting

第廿八次會議

 

3/10/2013

27th Meeting

第廿七次會議

 

10/9/2013

26th Meeting

第廿六次會議

 

27/8/2013

25th Meeting

第廿五次會議

 

16/8/2013

24th Meeting

第廿四次會議

 

23/7/2013

23rd Meeting

第廿三次會議

 

21/6/2013

Comments on draft dated 24/1/2013 up to 21/6/2013

21/6/2013為止收集到的對24/1/2013稿的意見

Standard Form of Domestic Sub-Contract (Draft 20130621).pdf

24/1/2013

Full draft after break

休會後全稿

Standard Form of Domestic Sub-Contract (Draft 20130124).pdf

12/3/2012

22nd Meeting

第廿二次會議

 

17/2/2012

21st Meeting

第廿一次會議

 

9/1/2012

20th Meeting

第廿次會議

 

19/12/2011

19th Meeting

第十九次會議

 

25/11/2011

18th Meeting

第十八次會議

 

14/11/2011

Draft of Section 11

第十一條稿

Domestic Sub-Contract Section 11 at 2011114.pdf

7/11/2011

17th Meeting

第十七次會議

 

2/11/2011

Draft of Section 11

第十一條稿

Domestic Sub-Contract Section 11 at 2011102.pdf

 

Previous draft of Section 11

之前的第十一條稿

Domestic Sub-Contract Section 11 before 2011102.pdf

17/10/2011

16th Meeting

第十六次會議

 

26/9/2011

15th Meeting

第十五次會議

 

9/8/2011

Draft of Section 10

第十條稿

Domestic Sub-Contract Section 10 at 20110909.pdf

11/8/2011

14th Meeting

第十四次會議

 

5/8/2011

Draft of Section 10

第十條稿

Domestic Sub-Contract Section 10 at 20110805.pdf

 

Previous draft of Section 10

之前的第十條稿

Domestic Sub-Contract Section 10 before 20110805.pdf

7/7/2011

13th Meeting

第十三次會議

 

9/6/2011

12th Meeting

第十二次會議

 

3/6/2011

Drafts of Sections 8 and 9

第八及九條稿

Domestic Sub-Contract Section 9 at 20110603.pdf 
Domestic Sub-Contract Section 8 at 20110603.pdf

 

Previous drafts of Sections 8 and 9

之前的第八及九條稿

Domestic Sub-Contract Section 9 before 20110603.pdf
Domestic Sub-Contract Section 8 before 20110603.pdf

16/5/2011

11th Meeting

第十一次會議

 

4/5/2011

Drafts of Section 7

第七稿

Domestic Sub-Contract Section 7 at 20110504.pdf

15/4/2011

10th Meeting

第十次會議

 

1/4/2011

9th Meeting

第九次會議

 

28/2/2011

8th Meeting

第八次會議

 

21/2/2011

Partial draft

部分稿

Domestic Sub-Contract snapshot at 20110221.pdf

20/1/2011

7th Meeting

第七次會議

 

18/1/2011

Partial draft

部分稿

Domestic Sub-Contract snapshot at 20110118.pdf

6/12/2010

6th Meeting

第六次會議

 

6/12/2010

Partial draft

部分稿

Domestic Sub-Contract snapshot at 20101206.pdf

1/11/2010

5th Meeting

第五次會議

 

1/11/2010

Partial draft

部分稿

Domestic Sub-Contract snapshot at 20101101.pdf

5/10/2010

4th Meeting

第四次會議

 

6/9/2010

3rd Meeting

第三次會議

 

2/8/2010

2nd Meeting

第二次會議

 

28/6/2010

1st Meeting

第一次會議

 

 

Special Features in the Standard Form of Contract for Maintenance and Renovation Works for Use in Hong Kong, First Edition 2013

Special Features in the Standard Form of Contract for Maintenance and Renovation Works for Use in Hong Kong, First Edition 2013 KCTang Tue, 24/02/2015 - 04:59
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FOREWORD

The Hong Kong Institute of Surveyors has published a Standard Form of Contract for Maintenance and Renovation Works for use in Hong Kong, First Edition 2013 (First Amendments in December 2014) to cater to the need of major maintenance and renovation works, instead of using the current Standard Form of Building Contract which is mainly for new construction. This article presents the key features introduced in the new form of contract to suit the special nature of major maintenance and renovation works.

 

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PREVAILING SITUATION

Hong Kong is densely populated with blocks of high rise residential buildings. They are under multiple ownerships. After decades of development, a lot of these buildings require major repair and maintenance works such as repair of spalling concrete, re-surfacing of external facades, replacement of plumbing and drainage systems, refurbishment of lobbies and staircases, etc. which are the common properties of the multiple ownership. The market of the major repair and maintenance works is huge.

Generally, the Standard Form of Building Contract, which is basically for new construction, is used and adapted for these maintenance works in the private sector. Special conditions of contracts are introduced. Some of them are poorly drafted causing argument over interpretation. Some of them are very harsh. Some of the harsh terms are for the building professionals’ convenience. Some are driven by the building owners who are mostly laymen pressing for commercial terms unusual to the construction industries.

Preliminaries clauses are also usually adapted from those used for new construction. They have become extensive because they have been added on top of those used for new construction and have accumulated from project after project. To play safe, irrelevant clauses are not readily deleted. This makes the Preliminaries rather complicated and cumbersome. Some of them are repetitive but inconsistent amongst themselves and with the Form of Contract.

The overall tender and contract documents are not easily understood by building owners. This also applies to the junior building professionals managing the contracts.

 

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INITIATION FOR CHANGE

New versions of the Standard Form of Building Contract (“SFBC”) were published in 2005 (with quantities version) and in 2006 (without quantities version) to reflect the latest legal development and the more complicated modern day construction practice. The documents have become thicker with more clauses. It was considered to be too complicated for repair and maintenance works. The building professionals would likely stay with the old versions when handling repair and maintenance works. On the initiation of the Building Surveying Division of the Hong Kong Institute of Surveyors, and with the co-operation of the Quantity Surveying Division, a Standard Form of Contract for Maintenance and Renovation Works was drafted and published in 2013 (“Standard Form”). The First Amendments were published in December 2014 mainly for the correction of typographical errors.

 

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INTENDED PURPOSES

The intended purposes of the Standard Form are as follows:

  • Project types
    • tailor-made for major maintenance and renovation works
      • whether residential buildings or not
      • not involving nominated sub-contracts (which is the usual case)
    • also useful for fitting out works which do not involve nominated sub-contracts
    • to be managed by building professionals
      • who can be architects, engineers or surveyors, instead of traditionally “the Architect”
  • Provisions
    • comparatively simple to read
    • simple yet comprehensive enough to cover all the basics
    • reduce the need for special contract conditions
    • reduce cumbersome preliminaries clauses
    • more structured for inserting and supplementing with project specific information
    • contain good and equitable practice
    • standard provisions will offer better persuasion to building owners to use more equitable terms
  • Building owners
    • can understand their contractual rights and obligations more easily
  • Building professionals
    • tasks to draft special contract conditions and preliminaries reduced
    • volume of paper reduced
    • easier to administer the contracts
  • Contractors
    • less exposed to ambiguous harsh terms
    • able to offer better prices and end products

 

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CONTENTS

The Standard Form is made up of the following sections:

  • Contract Agreement (7 pages)
    • 4 Recitals
    • 4 Articles
      • Object of this Contract
      • Contract Price
      • Contract Periods
      • Contract Documents
    • Signing section
      • Options to sign as a deed or as a simple contract
  • Particulars of Agreement (5 pages)
  • Contract Conditions (37 pages)
  • Appendix A – Surety Bond (Pro-forma) (4 pages)

The traditional terms of “Articles of Agreement’, “Conditions of Contract” and “Special Conditions of Contract” have been simplified to “Contract Agreement”, “Contract Conditions” and “Special Contract Conditions”. The traditional “Appendix to the Conditions of Contract” has been replaced with “Particulars of Agreement”.

To reflect the actual practice, the following documentary flow is specifically envisaged by the Recitals and Articles:

  • Tender Documents (including Conditions of Tendering, Form of Tender, Special Contract Conditions, Specification, Schedule of Works and Drawings) ==> Tender Addenda ==> Tender ==> Tender Correspondence (including Letter of Award) ==> Contract Documents.

These documents together with the Standard Form of Contract make up the Contract Documents.

The pre-2005/2006 SFBC do not envisage Special Conditions of Contract, Tender Addenda and Tender Correspondence. SFBC 2005/2006 envisage Special Conditions of Contract and Tender Correspondence.

 

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PARTICULARS OF AGREEMENT

The Particulars of Agreement are a part of the Contract Agreement which shall be read in conjunction with the Particulars of Agreement.

Other than the signing section, the Contract Agreement does not require any filling in of information. Project specific particulars are to be inserted in the Particulars of Agreement which are in a table form.

The Particulars of Agreement serve the purposes of the traditional Appendix to the Conditions of Contract but have been expanded to cover all the essential project specific particulars which may vary between projects.

There are 32 Items for entry of project specific particulars:

  • Contract Signing and Award Dates
  • Project Title and Address
  • Contract Title, Works Description and Site Locations (Site locations may be specific locations at the Project Address)
  • Contract Parties
    • Employer – name and address
    • Contractor – name and address
  • Consultants
    • Contract Administrator – name and address
    • Quantity Surveyor – name and address
  • Contract Type and Price (to select one)
    • Lump Sum Contract
    • Remeasurement Contract
    • Rates Only Contract
  • Time (see PHASING below)
    • Site Access Dates
    • Works Sections
    • Contract Periods
    • Rate of Liquidated Damages for Delayed Completion
    • Defects Liability Period
  • Documents
    • Tender Documents
    • Tender Correspondence
  • Payment Terms
    • Amount of advance payment
    • Method of recovery of advance payment
    • Retention Percentage
    • Maximum Retention
    • Period for Honouring Payment
  • Insurances and Bond
    • Contractors’ All Risks and Third Party Liability Insurance
      • Party responsible for taking out the insurance - The Employer / the Contractor
      • Percentage of professional fees in case of reinstatement
      • Amount for the removal of debris
      • Percentage for escalation clause
      • Material Damage insurance excesses in respect of each and every occurrence of loss or damage
      • Limit of indemnity for third party liability
      • Third party liability insurance excess in respect of each and every occurrence of loss or damage
    • Amount of Surety Bond
    • (No particulars needed for Employees’ Compensation Insurance here – covered by the Conditions)
  • Other Terms and Conditions (for entry of non-standard terms)

A set of partially completed Particulars of Agreement should be included in the Tender Documents for tendering. The fully completed and updated set should be used for signing the Contract.

 

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SIMPLIFICATION

Terms have been simplified:

  • “Contract Agreement” used for “Articles of Agreement’
  • “Contract Conditions” used for “Conditions of Contract”
  • “Special Contract Conditions” used for “Special Conditions of Contract”
  • “Materials” defined to mean materials and goods, and include equipment or machinery for incorporation into the Works, eliminating the need to write “materials and goods” or “materials, goods and equipment” all the time
  • “Plant” defined to mean construction plant, equipment or machinery used for carrying out the Works

Instead of trimming down based on SFBC 2005/2006, the clauses have been completely re-written with a view of making them as simple as possible but keeping the principle of SFBC 2005/2006. The Standard Form consists of 48 pages vs 98 pages for SFBC 2005/2006. In particular, the clauses on insurances have been very much simplified.

Provisions for Nominated Sub-Contracts and Nominated Supply Contracts have been omitted because they are not usually required for maintenance and renovation works.

 

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PHASING

The pre-2005/2006 SFBC do not envisage phased possession of the Site nor phased completion of the Works (though there is an optional Sectional Completion clause). SFBC 2005/2006 do envisage phasing and use such expressions as “the whole or parts of the Site” and “the Works or a Section”.

To simplify, the Standard Form assumes phasing by default, simply uses the expressions "Portion of the Site" and “Works Section”, and requires the following entries in the Particulars of Agreement:

 

Time

 

 

18

Date for Access to the Site

Portions of the Site

Date

Portion / Area / Zone X or 1

<>

Portion / Area / Zone Y or 2

<>

19

Names of Works Sections

Phase / Section / Stage

Description

Phase A or 1

<>

Phase B or 2

<>

20

Contract Periods

Works Sections

Commencement Date (or a mechanism to determine the Commencement Date)

Completion Date (or a mechanism to determine the Completion Date)

Durations in calendar days

Phase A or 1

<>

<>

<>

Phase B or 2

<>

<>

<>

21

Rate of Liquidated Damages for Delayed Completion (If none or “N/A” stated, general damages apply)

Works Sections

Rate HK$/calendar day

Phase A or 1

<>

Phase B or 2

<>

22

Defects Liability Period

Works Sections

Durations in calendar months after Completion Date of each Works Section

Phase A or 1

<>

Phase B or 2

<>

If there is no phasing, “the Whole” can be used for the Portions and Works Sections.

Each Works Section is to have its own Substantial Completion Certificate and Defects Rectification Certificate.

 

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MORE ENCOMPASSING TERMS

More encompassing terms have been used:

  • “Contract Administrator” introduced to replace the usually used term “Architect” to provide more flexibility. He can be an architect, engineer or surveyor.
  • “Schedule of Works” introduced to replace Bills of Quantities, Schedule of Rates, Schedules of Quantities and Rates, and Summary of Tender. It can be with quantities or without quantities. Unlike Schedule of Rates whose descriptions are to define the coverage of the rates only, its descriptions can define the scope and quality of the work items and the Works as a whole. This can reduce the need to duplicate the detailed descriptions of the scope of the Works in the Specification.

 

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MORE STRUCTURED

Contract Conditions – The order of the clauses in SFBC 2005/2006 or their predecessors does not follow any logical order probably because of the result of various additions to their predecessors over more than a hundred years. Unlike their rather random order, the Contract Conditions are structured into 12 sections, with the intention of making them easier and more logical to read, and making it easier for preliminaries clauses to be arranged in similar fashion to supplement with project specific details:

  1. Interpretations
  2. Site
  3. Works
  4. Time
  5. Contract Basis
  6. Prices
  7. Quality
  8. Contractor’s Documents
  9. General Obligations
  10. Insurances and Bond
  11. Determination
  12. Dispute Resolution

Comprehensive checklists - To eliminate the task of searching over the entire Contract Conditions for relevant clauses, and facilitate easier administration, comprehensive checklists have been given for:

  • computation of the net interim amount payable; and
  • computation of the final Contract Price (see below).

Excusable Events and Compensable Events - Events eligible for extension of time and monetary compensation are now called “Excusable Events” and “Compensable Events” respectively, instead of “listed events” and “qualifying events” in SFBC 2005/2006, to facilitate easier understanding. They have been presented in a tabular format for easier reading (see below).

 

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UPDATING

To keep in line with modern day legal development since the pre-2005/2006 SFBC:

  • “Excepted Risks” has been adapted from that used in SFBC 2005/2006, but “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” in SFBC 2005/2006 has been removed from the definition because it is considered to be too wide in scope.
  • “Excusable Events” and “Compensable Events” have been respectively adapted (with suitable adjustments) from the “listed events” and “qualifying events” used in SFBC 2005/2006. Like SFBC 2005/2016:
    • When an Excusable Event occurs in the period of delay after the (extended) Completion Date but before the substantial completion of a Works Section, extension of time shall still be granted but only for the net duration of the delay rather than granting the gross period until the end of the delay.
    • While the Contractor shall continuously use his best endeavours to prevent or mitigate delay or disruption to the progress of the Works however caused, and to prevent the completion of the Works from being delayed or further delayed, the use of best endeavours by the Contractor shall not require the Contractor to accelerate the carrying out of the Works to recover delay caused by an Excusable Event.
  •  “Separate Contractor” has been defined, like SFBC 2005/2006, to exclude any statutory undertaker or utility company carrying out work in pursuance of its statutory obligations and not having a contractual relationship with the Employer, the Contractor or any person for whom the Employer or the Contractor is responsible. Pre-2005/2006 SFBC do not have such distinction.
  • “Variations” has been expanded, like SFBC 2005/2006, to include, apart from physical changes, a change to the time or manner for carrying out the Works.
  • Like SFBC 2005/2016, the dispute resolution procedures have been expanded from arbitration only to:
    • Reference to Designated Representatives;
    • Reference to Mediation; and
    • Reference to Arbitration.

Users who would like to stay with the pre-2005/2006 SFBC should be aware of the legal development.               

To keep in pace with the new terms used in SFBC 2005/2006:

  • “Substantial Completion Certificate” used to replace “Practical Completion Certificate” in pre-2005/2006 SFBC; and
  • “Defects Rectification Certificate” used to replace “Certificate of Completion of Making Good Defects” in pre-2005/2006 SFBC.

 

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TAILOR-MADE ENHANCEMENTS

There are enhancements to suit the need of maintenance and renovation works. They are generally not available in the pre-2005/2006 SFBC. This made the Standard Form to have 48 pages vs 32 pages for the pre-2005/2006 SFBC.

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1.  Interpretations

Definitions - They have been introduced to simplify subsequent wording.

Building Manager - The likely presence of a Building Manager, being the person providing estate, property or facility management services to the premises where the Site is (the Site can be within a part of existing premises), is recognized.

Counting days - The method of counting days has been clarified. A day means a calendar day unless otherwise stated. When counting days, 1 day means 24 hours. Within 1 day means within 24 hours, not within the same day. “Commencing or starting from a certain day” means that certain day is day 1 for counting. “Commencing or starting after a certain day” means the day following that certain day is day 1 for counting.

Defects Rectification Certificate - This term has been used, like SFBC 2005/2006, to replace “Certificate of Completion of Making Good Defects” in pre-2005/2006 SFBC, but with no intentional change of meaning.

Excepted Risks - Their definition has been introduced. They are:

(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)       any direct consequence of the faulty design provided by the Contract Administrator or other designers engaged by the Employer or the Contract Administrator;

(c)       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

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

(a), (c) and (d) are the same as those newly introduced in SFBC 2005/2006. (b) has been intended to improve “the Architect’s design of the Works insofar as damage, loss or injury is the direct consequence of the design” as used in SFBC 2005/2006. “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” in SFBC 2005/2006 has been removed from the definition because it is considered to be too wide in scope.

Excusable Events and Compensable Events - “Excusable Events” (with extension of time) and “Compensable Events” (with monetary compensation) have been introduced and adapted from the “listed events” and “qualifying events” in SFBC 2005/2006 to keep in line with modern day legal development since the pre-2005/2006 SFBC. They have been presented in a tabular format for easier reading:

Event Code

Delays or disruptions by reason of

Excusable Events

Compensable Events

A

Force majeure

Yes

No

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 their consequences adversely affecting the progress of the Works

Yes

No

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

Yes

No

D

An Excepted Risk

Yes

Yes

E

Fire, lightning, explosion, flood, bursting or overflowing of water tanks, apparatus or pipes, earthquake, aircraft and other aerial devices or articles dropped from them, not caused by the Contractor or any person for whom the Contractor is responsible

Yes

No

F

Late provision of Contract Administrator’s instructions expressly required by this Contract to be provided by a specific time or before implementation of the matter being affected

Yes

Yes

G

Late provision by the Contract Administrator of instructions or information (including clarification of any ambiguity, discrepancy in or divergence between documents provided by the Employer or the Contract Administrator, and including outstanding or new information) required for the progressing of the Works, after taking into account any mitigating effect which could have been afforded if the Contractor had requested for such instructions or information reasonably in advance of the occurrence of the delays or disruptions

Yes

Yes

H

The opening up for inspection of work covered up or the testing of materials or work and the consequential making good which are additional to the Contract requirements and instructed by the Contract Administrator, provided that such materials and work are in accordance with this Contract

Yes

Yes

I

The carrying out of a Variation or the happening of an event deemed to be a Variation

Yes

Yes

J

Increase in the work to be carried out pursuant to provisional items in this Contract of sufficient magnitude that the increase was not apparent from the Contract Documents

Yes

Yes

K

A postponement of the Date for Access to any portion of the Site unless this Contract has provided for such occurrence

Yes

Yes

L

A postponement of the Commencement Date of a Works Section unless this Contract has provided for such occurrence

Yes

Yes

M

A suspension of the provision of the whole or a portion of the Site as instructed by the Contract Administrator beyond any provided for in this Contract and not being due to a breach of contract or other default by the Contractor or any person for whom the Contractor is responsible

Yes

Yes

N

A suspension of the progress of the whole or a part of a Works Section as instructed by the Contract Administrator beyond any provided for in this Contract and not being due to a breach of contract or other default by the Contractor or any person for whom the Contractor is responsible

Yes

Yes

O

A delay or disruption caused by a Separate Contractor

Yes

Yes

P

A delay caused by a statutory undertaker or utility company carrying out work in pursuance of its statutory obligations, not having a contractual relationship with the Employer, the Contractor or any person for whom the Employer or the Contractor is responsible, and 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, carry out and complete its work on time

Yes

No

Q

A failure of the Employer to supply or supply on time materials that he agreed to provide for the Works

Yes

Yes

R

A delay by a Government department in giving an approval or a consent which is not the Contractor’s responsibility to obtain

Yes

Yes

S

An unreasonable delay by a Government department in giving an approval or a consent which is the Contractor’s responsibility to obtain, provided that any disallowance of approval or consent attributable to the Contractor’s lack of adequate submission shall not be considered as unreasonable

Yes

No

T

A special circumstance considered by the Contract Administrator as sufficient grounds to fairly entitle the Contractor to an extension of time

Yes

No

U

An act of prevention, a breach of contract or other default by the Employer or any person for whom the Employer is responsible

Yes

Yes

Separate Contractor - This term has been defined, like SFBC 2005/2006, to exclude any statutory undertaker or utility company carrying out work in pursuance of its statutory obligations and not having a contractual relationship with the Employer, the Contractor or any person for whom the Employer or the Contractor is responsible. Pre-2005/2006 SFBC do not have such distinction.

Substantial Completion Certificate - This term has been used, like SFBC 2005/2006, to replace “Practical Completion Certificate” in pre-2005/2006 SFBC, but with no intentional change of meaning. Each Works Section is to have its own Substantial Completion Certificate and Defects Rectification Certificate.

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2.  Site

Provision of Site - This is by way of granting access to the site rather than giving exclusive possession to reflect the usual nature of carrying out the works while the buildings are continued to be occupied and used by owners and tenants. This can be in phases as stipulated in the Particulars of Agreement.

Site access - The Employer is only responsible for providing access to the Site through land or premises which are under his control. Where the Employer is the landlord or the incorporated owners or the Building Manager of the premises in which the Site is situated, any individual units of the premises which are separately owned or rented (such as residential flats, car parking spaces, offices, shops, workshops, stores, and the like) shall be deemed to be under the control of the Employer.

House rules - The Contractor shall comply with the house rules of the Building Manager and pay any deposit temporarily required as security for loss or damage, but any restrictions on access or working hours more stringent than those announced by the Building Manager prior to the award of the Contract and affecting the Works shall be deemed to be a Variation.

Site investigation or condition survey reports - As usual, any site investigation or condition survey reports or other information which may be made available to the Contractor prior to the award of this Contract are given without any warranty on the part of the Employer as to their accuracy or completeness, and they shall be deemed to be supplied for the Contractor's information only. However, it has been clarified that they must be the whole record of such investigation or survey as has been carried out.

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3.  Works

Works - As a catch-all definition to avoid the fine argument that the Works are for "build only" not including design, service and maintenance, “the Works” has been defined to include:

  • permanent work required to be carried out and completed by the Contractor under the Contract;
  • temporary work required for the carrying out and completion of the permanent work;
  • services required to be carried out and completed by the Contractor under the Contract;
  • materials supplied by the Employer for incorporation by the Contractor into the Works after they are handed over to the Contractor;
  • design of any part of the permanent work if this is specified to be part of the Works;
  • service and maintenance required to be carried out after substantial completion of the Works; and
  • provision of warranties and guarantees.

The Works exclude:

  • materials supplied by the Employer for incorporation by the Contractor into the Works but only until such time when they are handed over to the Contractor;
  • materials or workmanship or method or work which is not in accordance with the Contract; and
  • work or services carried out by the Contractor without authority under the Contract.

Design responsibility – The following have been clarified:

  • design of permanent work – the Employer shall engage the Contract Administrator or other designers to carry out the design work;
  • development of “design intent drawings” (declared as such) into detailed design of the components making up the complete system, installation or fitting, basically by way of shop drawings - the Contractor shall be responsible;
  • development of design of schematic and layout drawings of building services installations into shop or installation drawings – the Contractor shall be responsible;
  • design of temporary work – the Contractor shall be responsible; and
  • Contractor’s design to be approved and be fit for the intended purpose.

Testing and commissioning - Before they may be certified as substantially completed, all mechanically, hydraulically, electrically or electronically operated parts of the Works and any parts of the Works connected by and including pipes, ducts, conduits, trunking, wiring or cables shall be tested and commissioned in accordance with the requirements of this Contract.

Equal and approved - For a material where the Contractor is permitted to propose “equal and approved” or “approved equal” brands or models, the Contractor may propose a brand or model of the same kind of material equal in performance and quality to that originally specified or proposed in the Contract. Traditionally, such proposal should have no cost effect. However, there have been cases where the standard of performance and quality is not precise enough and the prices of the alternatives apparently meeting the standard are too cheap. On the other hand, it would not be reasonable to accept only more expensive alternatives. It is therefore clarified that no cost reduction shall be required if the alternative brand or model is not cheaper than the cheapest of those originally specified or proposed in this Contract by more than 10%, otherwise a share of the cost saving shall be proposed.

Contractors’ alternative proposals - For other cases, as usual, the Contractor’s alternative proposals shall not be adopted without the prior written approval by the Contract Administrator. The approval shall have no effect on the Contract Price or the Completion Date unless the effect is specifically stated in the written approval, in which case, the approval shall be deemed to be a Variation instruction. Under no circumstances shall the approval relieve the Contractor of his responsibilities under this Contract.

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4.  Time

Extension of time - Early and progressive submission of extension of time and delay and disruption monetary claims has been encouraged with time frames specified (as good practice rather than as time limits).

It was noted when drafting the Standard Form that in spite of the usual contract practice of specifying a short period of time after the commencement of a delay or disruption event as the time limit for submitting notices and claims, Contractors are still late in submitting their notices and claims, and Contract Administrators are late in ascertaining the claims pending the Employers’ blessing. It was considered that for maintenance and renovation works, Contractors are less sophisticated, laymen building owners as Employers would want to be consulted before granting time and monetary compensation, and Contract Administrators would want to play safe. Therefore, short time bars were considered to be not practicable nor desirable, a more practical approach has been adopted:

  • A more relaxed time bar with longer time has been specified for the Contractor to submit extension of time and delay and disruption monetary claims:
    • Extension of time claims to be submitted regularly but not later than the Completion Date of the relevant Works Section or its extended completion date previously claimed by the Contractor; and
    • Delay and disruption monetary claims to be submitted regularly but not later than 3 months after the direct loss and/or expense having been incurred, progressive submissions permitted for continuing events.
  • On the other hand, with the relaxed time limit, the Contractor shall bear the consequence of his own non-submission, late submission or insufficient submission of notices or information. The Contract Administrator and the Quantity Surveyor are only obliged to act based on information received without an obligation to demand for further information from the Contractor.

It has been clarified that the Contractor shall continuously use his best endeavours to prevent or mitigate delay or disruption to the progress of the Works however caused, and to prevent the completion of the Works from being delayed or further delayed, but the use of best endeavours by the Contractor shall not require the Contractor to accelerate the carrying out of the Works to recover delay caused by an Excusable Event.

An extension of time is to compensate the working time lost. This means that working days should be suitably converted to calendar days.

When an Excusable Event occurs in the period of delay after the Completion Date but before the substantial completion of a Works Section, extension of time shall still be granted but only for the net duration of the delay rather than granting the gross period until the end of the delay.

Extension of time granted shall not be reduced unless it has been based upon incorrect information provided by the Contractor.

Determining time and cost effects - To remedy the situation of some contracts of specifying a time limit for the Contractor to submit notices and claims without at the same time specifying a time limit for the Contractor Administrator and the Quantity Surveyor to respond, the Standard Form requires the Contract Administrator and the Quantity Surveyor respectively to respond within 14 days after the receipt of an extension of time notice or monetary claim, while subsequent review is permitted in light of further evidence at any time before issuing the Final Certificate.

Handover after completion - 14 days have been specified for the Contractor to hand over a Works Section after substantial completion and 7 days for demobilizing from the residual retained areas.

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5.  Contract Basis

Interpretation of Contract Documents - The order of precedence of the Contract Documents has been clarified, with wider coverage, as:

  • Contract Agreement;
  • Tender Correspondence;
  • Form of Tender or the Tender;
  • Special Contract Conditions;
  • Schedule of Works;
  • the Preliminaries section of the Contract Specification;
  • Contract Conditions;
  • Contract Drawings; and
  • Sections of the Contract Specification other than the Preliminaries section (i.e. Technical Specification).

Documents issued later in time shall take precedence, particular specification shall take precedence over general specification, detailed drawings shall take precedence over general drawings, specification and drawings specially prepared for the Works shall take precedence over standard specification and drawings.

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6.  Prices

Types of contract - To offer greater flexibility and reduce the need to amend a standard form suiting one type to suit another type, optional clauses have been included to deal with the three different common types of contract, which may be selected in the Particulars of Agreement:

  • Lump Sum Contract
    • basically quantities are to be estimated by the Tenderers at their own risks;
    • there is also a clause dealing with cases where the quantities are at the Employer’s risks; however, if full scale Bills of Quantities are to be used, this clause may need special conditions to make it more comprehensive;
  • Remeasurement Contract; and
  • Rates Only Contract.

Measurement and pricing clauses - Clauses have also been introduced to deal with:

  • Arithmetical errors;
  • Provisional quantities;
  • Method of measurement;
  • Provisional sums; and
  • Prime cost rates.

It may be argued that these clauses should, as usual practice, be included in the Conditions of Tendering, Preliminaries or Preambles. Because of their common nature, these matters are usually encountered, but there are no standard Conditions of Tendering, Preliminaries or Preambles amongst building professionals. This makes the wording of the clauses and therefore interpretations vary amongst building professionals. It was therefore considered more appropriate to deal with these common matters in the Standard Form.

Valuation - The valuation rules for valuation of Variations and of work carried out by the Contractor covered by a provisional sum are basically the same as those used in the traditional forms of contracts, being Contract Rates ==> pro-rata rates ==> star rates ==> daywork rates, but with the following enhancements:

  • The terms “pro-rata rates” and “star rates” have been formally used. (While they have been used in everyday work, they have not been formally used in the traditional forms of contracts.)
  • It has been clarified that a pro-rata rate shall use the Contract Rates for comparable items as the base with adjustment for the net difference in costs due to the difference in character or conditions plus the same percentage for profits and overheads as used in the relevant Contract Rates.
  • It has also been clarified that a star rate shall be derived from market rates including rates used on other comparable projects fairly adjusted to take into consideration the nature and conditions under which the work is carried out under this Contract or from first principle based on actual costs plus the percentage for profits and overheads generally used in the Contract Rates.
  • If there is any disagreement as to the percentage for profits and overheads generally used in the Contract Rates, 15% shall be used for mark-up on the costs of direct labour, materials and plant. If the work is sub-contracted, then 10% shall be used for mark-up on the subcontract prices. For the SFBC 2005/2006 or before, 15% is usually taken as a convenient but not mandatory norm for all cases.

Contractor’s claims for extras - The usual practice that any changes made to the Contractor’s submissions such as drawings, samples or catalogues in consequence of any comments made by the Contract Administrator shall not be a Variation has been retained, but it has been clarified that if the Contractor disagrees, he shall immediately upon the receipt of the relevant comment or instruction write to the Contract Administrator to seek clarification.

Payment - The usual payment practice of: Contractor’s payment application ==> Quantity Surveyor’s valuation ==> Contractor Administrator’s certification ==> Contractor’s invoice ==> Employer’s payment, has been retained, with the following specific details:

  • Payment applications are to be submitted at monthly intervals before substantial completion, and at bimonthly intervals thereafter.
  • A Payment Certificate is to be issued within 14 days of receipt of the Contractor’s application.
  • A comprehensive checklist of how to compute the net amount payable has been given.
  • There is a reminder that any advance payment shall be made only after the provision by the Contractor of a surety bond in a form acceptable to the Contract Administrator and of a value not less than the amount of the advance payment.
  • Unlike the SFBC 2005/2006 or before, it is permissible to deduct liquidated damages from the net amount payable.

Final Account - A comprehensive checklist of how to compute the final Contract Price has been given. The Contractor’s proposed Final Account shall be submitted within 3 months from the completion of the whole of the Works. The whole Final Account shall be agreed as soon as possible not later than 1 month after the issue of the Defects Rectification Certificate. If the Quantity Surveyor considers that he has taken into account all the representation of the Contractor but still fails to obtain the Contractor’s agreement, he may issue a unilateral Final Account to the Contractor and declare it as such.

Final Certificate - The Contract Administrator shall issue the Final Certificate within 14 days after the issue of the Defects Rectification Certificate of the last Works Section or within 14 days after the agreement of the Final Account or after 1 month has lapsed after the issue of the unilateral Final Account, whichever is the later. The Final Certificate is not final in respect of liabilities for any latent defects not discovered at the time of the Final Account, or matters affected by any bribery offence, fraud, dishonesty or fraudulent concealment.

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7.  Quality

This Section covers the usual matters like: Quality liability; Materials, workmanship and method to comply with Contract; Approval; Samples; Testing and inspection; Defects liability; and Warranties and guarantees.

Excepted Risks - The Contractor is exempted from loss or damage arising from the Excepted Risks.

Warranties and guarantees - Apart from warranties and guarantees specifically required by the Contract, it may be possible that the Contractor’s suppliers and sub-contractors provide standard warranties or guarantees. The Contractor shall assign the benefits of all such warranties or guarantees to the Employer (so far as he is lawfully able to do so). To prevent undue delay in the submission of warranties and guarantees, it has been specified that the submission of all warranties and guarantees satisfactorily in full compliance with the Contract shall be a pre-requisite to the release of one half of the retention fund upon substantial completion of the relevant Works Section.

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8.  Contractor’s Documents

This Section covers the usual matters like: Shop drawings, Construction method statement and programme, Progress reports, and As-built records.

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9.  General Obligations

This Section covers the usual matters like: Statutory obligations; Intellectual property; Assignment; Care of the Works; Injury to persons and property and indemnity to Employer; Provision of all things necessary; Labour and site management team; Temporary site facilities; Setting out; Cleanliness and tidiness; Protection; and Visitors.

It may be argued that some of the clauses under “7. Quality”, “8. Contractor’s Documents”, and “9. General Obligations” should, as usual practice, be included in the Preliminaries. They have been included in the Contract Conditions to reduce the need to draft Preliminaries clauses to cover these usually encountered matters.

Administrative charge - A special provision has been introduced to impose a 10% administrative charge on payment of statutory charges on behalf of the defaulting party.

Prevention of bribery offences - Clauses on Prevention of Bribery Offences with consequence of determination of the employment of the Contractor have been introduced to stress the importance:

9.13     Prevention of bribery offences

            The Contractor shall not offer, give or agree to give to any person any bribe, commission, gift, loan or advantage of any kind as defined in the Prevention of Bribery Ordinance, Cap 201 as an inducement or reward for doing or forbearing to do or for having done or forborne to do any action in relation to the execution of this Contract or any other contract with the Employer, or for showing or forbearing to show favour or disfavour to any person in relation to this Contract or other contract with the Employer. Any commitment of the aforesaid offences by any person with the Contractor’s prior authorization or subsequent acquiescence shall be deemed to be the Contractor’s fault. The Contractor shall take all necessary measures to ensure that his employees, agents, sub-contractors, suppliers, or other persons for whom the Contractor is responsible comply with the foregoing provisions.

11.1     Determination by Employer

11.1.1  The Employer may but not unreasonably or vexatiously by notice by registered post or recorded delivery to the Contractor forthwith determine the employment of the Contractor under this Contract in any one or more of the following events: … (f) the Contractor (or any person for whom the Contractor is responsible with or without the knowledge of the Contractor) is convicted of a bribery offence described in Clause 9.13. …

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10.  Insurances and Bond

This Section covers Employees’ Compensation Insurance; Contractors' All Risks and Third party liability Insurance; and Surety Bond or cash security.

As compared with SFBC 2005/2006, these clauses have been very much simplified.

Employees’ Compensation Insurance - It is the Contractor’s responsibility to take out Employees’ Compensation Insurance, to follow the statutory requirements.

Contractors’ All Risks and Third Party Liability Insurance - Either the Employer or the Contractor may be specified in the Particulars of Agreement to take out the Contractors’ All Risks and Third Party Liability Insurance.

The Building Manager has been specified as one of the “the principals”.

Use of a company master policy or annual policy is permissible.

Administrative charge - A 15% administrative charge is to be imposed on insurance premium paid on behalf of the defaulting party who fails to insure.

Bond and cash security - A cash security equal to the amount of the Surety Bond may be withheld temporarily from the Payment Certificate if the Contractor so elects or if the Contractor fails to submit an approved Bond.

Upon the issue of a Defects Rectification Certificate of a Works Section and the settlement of all claims (if any), the amount of the Bond or cash security shall be reduced pro-rata to ratio of the value of that Works Section to the final Contract Price currently estimated. Upon the issue of the Defects Rectification Certificate of the last Works Section and the settlement of all claims (if any), the Bond or the balance of the cash security shall be released to the Contractor without interests.

Pre-2005/2016 SFBC stipulate the release of the Surety Bond upon Practical Completion. SFBC 2005/2006 offer a choice between Substantial Completion and Defects Rectification Certificate.

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11.  Determination

This Section covers the determination by the Employer or by the Contractor himself of the Contractor’s employment.

Apart from the usual grounds for determination, the following grounds for determination by the Employer of the employment of the Contractor have been introduced:

  • the Contractor without reasonable cause fails persistently to rectify defects after substantial completion of the whole of the Works and the Employer pursuant to another clause employs others to rectify the defects for 5 times or more and the total cost of rectifying defects exceeds $100,000;
  • the Contractor without reasonable cause fails to submit evidence of the Employees’ Compensation Insurance and the Contractors’ All Risks and Third Party Liability Insurance in the specified manner within 1 month after the Contract Award Date; and
  • the Contractor (or any person for whom the Contractor is responsible with or without the knowledge of the Contractor) is convicted of a bribery offence.
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12.  Dispute Resolution

Like SFBC 2005/2016, the dispute resolution procedures are:

  • Reference to Designated Representatives;
  • Reference to Mediation; and
  • Reference to Arbitration.

Pre-2005/2016 SFBC 2005/2016 only provides for arbitration.

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13.  Amendments

The following amendments in {} are recommended:

4.5       Notices and claims

4.5.4    In any case, the notice under Clause 4.5.1 and the updated notices under Clause 4.5.2 shall not be submitted later than the Completion Date of the relevant Works Section or its extended completion date previously claimed by the Contractor, {whichever is the later,} and the Contractor’s monetary claim under Clause 4.5.3 shall not be submitted later than 3 months after the direct loss and/or expense having been incurred, progressive submission permitted.

7.7       Warranties and guarantees

7.7.2    If the Contractor has any suppliers’ and sub-contractors’ warranties or guarantees for materials or work required by this Contract, he shall assign the benefits of all such warranties or guarantees to the Employer (so far as he is lawfully able to do so){ the benefits of all such warranties or guarantees}.

 

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Specification 工料规范

Specification 工料规范 KCTang Sun, 21/12/2014 - 00:02
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Specification 工料规范

  1. Preliminaries (if not included as Bill No. 1 in full);
  2. Technical Specification
    技术要求;
    • General Specification or Standard Specification;
    • Particular Specification; and
  3. Technical Schedules.
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Method of specifying

  1. Prescriptive specification.
  2. Performance specification.
  3. By specific brands or models.
  4. By prime cost rates.
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Technical Specification 工料规范之技术要求

  1. To specify the materials, workmanship and acceptance standard.
    说明用料、工艺及验收标准.
  2. May contain some general requirements which would not be repeated on the Tender Drawings. 
    会有一些图纸不再表达的一般性规定.
  3. May also contain some special requirements which could not be shown on the Tender Drawings. 
    亦会有一些图纸表达不了的特殊规定.
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Usual contents of a section in the Technical Specification 工料规范之技术要求每章通常应有的内容

  1. Scope
    范围.
  2. Contractor's design requirements
    承包方承担的设计要求.
  3. Performance requirements
    功能要求.
  4. Warranty requirements
    质保要求.
  5. Contractor's submissions and approval procedures
    承包方要提交的东西及审批程序:
    • Samples
      样品;
    • Manufacturers' certificates
      生产厂证书;
    • Independent laboratories' test reports
      独立实验室測试报告;
    • Shop drawings
      制配图;
    • Field installation drawings
      现场安装图;
    • Ancillary builder's work drawings
      土建配合图.
  6. Materials
    用料.
  7. Workmanship
    工艺.
  8. Testing
    测试.
  9. Commissioning
    调试.
  10. Acceptance inspection
    验收.
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Provision of Specification

  1. Specification should be obtained from the Architects and Engineers upon commencement of taking-off. 
    在开始计量时由设计方提供.
  2. Occasionally, the Architects and Engineers may ask the Quantity Surveyors to provide Specification. Strictly speaking, provision of Specification is not part of the Quantity Surveyors’ usual services and is excluded from the fees.
  3. Some QS firms have their standard specification. Provision of such standard specification for the Architects’ and Engineers’ reference should be qualified as to the liability for errors.
  4. Making general references to local government or national or industry standard specifications may lack precision because of the presence of different levels of optional requirements in the standard specifications. 
    若纯叁阅政府或国家或行业标准,因有不同程度的选择性规定,会太笼统.
  5. The Technical Specification should be drafted to suit the need for the Works. 
    工料规范之技术要求应就本工程的需要编写.
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BQ descriptions to reflect the Specification 工程量清单分项说明要反映规范

  1. The Specification may contain additional information on materials and workmanship which are not shown on the Drawings. There may be different grades for the same class of materials. There may be different components making up a complete work which require separate measurement. Therefore, care should be exercised to ensure that the BQ items represent and correspond to the materials, workmanship, kind, type, grade, etc. given in the Specification.
  2. The Specification is usually very lengthy, it would be impracticable for the BQ descriptions to repeat the Specification clauses. The Specification should be read together with the BQ descriptions. Instead of repeating the Specification clauses in detail, the BQ descriptions should be adequate to define the scope of component materials and work required so that there would be no ambiguity as to what are required to be included in the BQ rates.
  3. 编标者要:
    • 阅读工料规范;
    • 并在工程量清单分项说明反映;
    • 小心同类物料工艺有不同规格及等级。
  4. 要综合反映图纸上或工料规范中影响造价的内容,以便投标者充分地计价。
  5. 若工料规范的有关规定太长,不能在清单分项说明内重复的:
    • 可在分项说明内指明工料规范的有关条款;
    • 但分项说明仍要简单地列明辅项范围;
    • 若条款有不同规格供选择的,应予以说明。
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Specification notes on Drawings 图纸上的规范说明

  1. The specification notes on Drawings should be scrutinized as well. The specification notes generally reflect the particulars of a particular project more than the Specification which can be very standard for all projects.
  2. Any discrepancies between the clauses in the Specification and the specification notes should be clarified with the Architects or Engineers.
  3. The terminology of specification notes on Drawings and annotations on Drawings can be loosely used, and inconsistency with the terminology used in the Specification is not uncommon. The terminology used in the Specification should be followed in the BQ descriptions.
  4. 编标者要:
    • 阅读图纸上的规范说明;
    • 并在工程量清单分项说明反映。
  5. 图纸上的规范说明:
    • 视乎设计方的习惯,可能简单可能长篇;
    • 可能是设计方很标准的写法;
    • 亦可能是特别写给本工程的;
    • 太标准的写法很容易不适用于个别工程;
    • 如与工料规范的要求有矛盾,应与设计方澄清;
    • 小心图纸上的用词未及工料规范的严谨,应使用工料规范的用词。
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Lining through Specification 规范上画线

  1. Similar to the practice of lining through notes and annotations on Drawings, the clauses in the Specification should also be lined through each by each as and when the contents have been taken into consideration in the measurement or writing BQ descriptions. 
    如在图纸上的文字说明及数字画线一样,工料规范的条款在计算工程量或写分项说明时已予以反映的,该条款便应画线以资识别。逐段画线的图例:
  2. Since the Specification clauses may involve work measured by more than one Taker-off, the Specification clauses should be lined through by all Takers-off involved. Different colour pencils may be used by different Takers-off and the bottom of the line or pages should be initialled. 
    涉及的计量员都应以不同的木颜色笔画线,并在每页的线底端签名,以资负责.
  3. Handwritten draft changes to the Specification should be marked by fountain pens, ball pens or felt pens using red ink. 
    发觉工料规范有需要修改的地方,应以不褪色的笔标记,留待最后时打印修订.
  4. Upon completion of taking-off, the presence of any Specification clauses not lined through may mean that they have not yet been taken into account. 
    计量完毕时,任何未画线的条款表示未在工程量清单内应用及反映.
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Bills of Quantities 工程量清单

Bills of Quantities 工程量清单 KCTang Wed, 24/12/2014 - 15:49

Concepts of Bills of Quantities 工程量清单的概念

Concepts of Bills of Quantities 工程量清单的概念 KCTang Sun, 21/12/2014 - 00:23
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What are Bills of Quantities?

  1. A Bill of Quantities is a list of quantified items of work or services required for the completion of construction works with the quantities of the work or services stated in appropriate units of measurement and with materials, workmanship, quality and standard required for the work or services fully described.
  2. "Bills of Quantities" are usually given in plural since usually there are more than one bill in a set of Bills of Quantities and more than one item in a Bill of Quantities.
  3. Bills of Quantities are usually prepared by Quantity Surveyors, a member of the Consultant teams to the Developers of construction projects.
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工程量清单是甚幺?

  1. 列项
    • 把完成某工程所需的实物或服务分项列出
  2. 量化
    • 以恰当的计量单位予以量化
  3. 说明
    • 对所需的材料、工艺、质量及标准充份说明
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Functions of Bills of Quantities

  1. The primary function of Bills of Quantities is for inclusion in Tender Documents issued to Tenderers for pricing such that all tenders are priced based on the same set of items and quantities and the returned priced Bills of Quantities will be useful for tender analysis.
  2. The secondary functions, not necessarily less important functions, of Bills of Quantities are:
    • The rates in the priced Bills of Quantities, when accepted, will become the contract rates for the purposes of pricing payments, variations and valuations.
    • The priced Bills of Quantities can be used for valuing work in progress.
    • The priced Bills of Quantities can be analysed to produce cost analysis of the building or construction.
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工程量清单的功能

  1. 招标
    • 传达工程内容
    • 较准确的投标 – 编标者在编清单过程与建筑师及工程师保持密切的沟通,编出的工程量清单会比较由承包方自己编的更有代表性
    • 较少的合同后争议 – 编得好的工程量清单可减少项目涵盖范图不清楚所带来的争议及减少索赔
  2. 投标
    • 为计价依据
    • 投标乃按同样的基础计价
    • 减低投标者的投标费用,投标者不需要花金钱及资源去计算工程量
  3. 评标
    • 便于比较
    • 评标的比较分析可集中于单价方面
    • 灭少数量差对中标资格的影响
  4. 定标
    • 成为合同文件的一部份
    • 工程量清单所填写的单价获接纳后成为合同单价,用作付款估值、变更计价
  5. 施工
    • 为施工及验收标准
    • 比图纸或规范有更明确说明
  6. 付款
    • 方便计算进度款
  7. 结算
    • 有约束力的单价
    • 较易计算减帐 – 在计算工程变更的减帐时,可以查阅原来的计算来扣减,而不必再计
  8. 造价分析
    • 可予以分析得出建筑物或建设工程的造价指标和工程含量
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Types of Bills of Quantities

  1. Based on the nature of the quantities, Bills of Quantities can either be:
    • Firm Bills of Quantities; or
    • Provisional Bills of Quantities (sometimes called Approximate Bills of Quantities).
  2. For Firm Bills of Quantities, all quantities are meant to have been accurately measured based on the Tender Drawings and Specification and therefore do not require remeasurement in the settlement of the Final Accounts. If it is found after contract award that the quantities are wrong, the Contract Sum will be adjusted for the rectification of the errors. The risks of the errors in the Bills of Quantities therefore rest with the Employer.
  3. For Provisional Bills of Quantities, all quantities are meant to have been approximately measured from the Tender Drawings and Specification or estimated based on predictions. The quantities will require remeasurement in the settlement of the Final Accounts. Any errors or imprecision in estimating the quantities or describing the work will be rectified once and for all in the Remeasurement Bills. However, if the final as constructed items and quantities differ from the original provisional items and quantities substantially, the Contractor may argue for an adjustment of the unit rates. If the total value of the Remeasurement Bills vary substantially from the value of the original Provisional Bills of Quantities, the Client may also query.
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Contractors’ Bills of Quantities / Schedule of Quantities and Rates

  1. If Bills of Quantities are not provided to Tenderers for tendering, the Tenderers will be required to measure their own quantities and submit their own itemized quantities and rates build-up or breakdown of the tender sums. To distinguish such kind of build-up or breakdown from Bills of Quantities provided to Tenderers, they are called "Schedule of Quantities and Rates" or simply "Schedule of Rates".
  2. The quantities of Schedule of Quantities and Rates do not form part of the Contract. This means that any errors or omissions or excess in the quantities or items in the Schedule of Quantities and Rates will be regarded as the risks of the Tenderers and the Contract Sum will not be rectified for the errors.
  3. In theory, the quantities of a defined scope of works should be the same. However, the format, classification, sequence, items and descriptions of Schedules of Quantities and Rates prepared by different Tenderers will be different. This would make tender analysis and comparison very difficult and less precise.
  4. Each Tenderer would have to spend money and resources to prepare the Schedule of Quantities and Rates. However, only one out of several Tenderers will be successful in obtaining the contract for each tendering, and there is no guarantee that the value of work secured will be equally spread amongst Tenderers. Tenderers would have to make short-cuts or approximations when preparing the Schedule of Quantities and Rates in order to reduce the cost of tendering.
  5. With the common practice of awarding the contract to the lowest Tenderer, it is sometimes said that the lowest Tenderer is the lowest because he has made serious errors by under-measurement or under-pricing.
  6. Contractors who have under-priced will be more likely to explore avenues for claims in order to recover the loss. This would make post contract management difficult.
  7. Since the quantities in the Schedule of Quantities and Rates do not form part of the Contract, for each variation, the quantities of work omitted should be measured rather than relying upon the quantities stated in the Schedule of Quantities of Rates. For example, if the Schedule of Quantities and Rates included a separate item for 100 m2 of false ceilings in the lift lobbies and there is a variation requiring omission of all false ceilings in the lift lobbies, the quantity to be omitted cannot simply be 100 m2 but shall be accurately measured which may turn out to be more or less.
  8. Descriptions in the Schedule of Quantities and Rates are generally simplified or imprecise or incomplete. This will create difficulties in interpreting what are actually covered by and allowed for by an item, and will lead to argument when such items are used for pricing of additions or omissions.
  9. Taking aside the commercial consideration of minimizing the costs, the principle and technique described in this wiki for the production of Bills of Quantities should also be applicable to the production of Schedule of Quantities and Rates.
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Advantages of Bills of Quantities

  • Having discussed the characteristics of Schedule of Quantities and Rates, it is apparent that the advantages of providing Bills of Quantities to Tenderers for pricing are:
    • Comparison of tenders on common basis - Tenders are priced on a common basis. Analysis and comparison of tenders would be on the rates and prices only.
    • Saving Tenderers’ costs of tendering - Tenderers would not need to spend money and resources to measure the Bills of Quantities.
    • More accurate tenders - The quality of Bills of Quantities produced by Quantity Surveyors having dialogue with the Architects and Engineers over a longer period of time should be better than the Schedule of Quantities and Rates produced by Tenderers within shorter period of time with less budget.
    • Easier to calculate omissions - For omission of quantities due to variations in the post contract stage, instead of remeasuring the quantities to be omitted, the original measurements can be referred to for the quantities to be omitted.
    • Less post contract problems - Well prepared Bills of Quantities will reduce the uncertainty as to the coverage of items and reduce claims.
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Difficulties for Bills of Quantities

  1. Production of good Bills of Quantities do require substantial number of man-hours which span over a significant period of time. This means fees and time on programme.
  2. Some Developers because of tight development budgets or small development size would not want to spend money in producing Bills of Quantities.
  3. Some Developers would not want to spend an extra few weeks on programme to produce Bills of Quantities.
  4. Some Developers may go to the extreme to say that the quality of Bills of Quantities produced by the Quantity Surveyors is no better than the Schedule of Quantities and Rates produced by Tenderers.
  5. Without the need to produce Bills of Quantities, the Quantity Surveyors’ fees will be reduced, it is therefore of paramount importance that Quantity Surveyors should take the best measures and make the best effort to produce quality Bills of Quantities within the shortest possible time.
  6. It should also be borne in mind that without Bills of Quantities, the time required to deal with tender analysis and post contract management will be increased.
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工程量清单的困难

  1. 编制好的工程量清单
    • 需要很多任务时及工日
    • 发包方未必愿意花钱或花时间
    • 亦有些发包方让承包方自己计算承担错误的风险
  2. 要持续地取得任务的关键是
    • 省时地编到好的工程量清单
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Verification of Bills of Quantities

  1. Because of the fear that the Bills of Quantities measured by the Quantity Surveyors are not accurate enough that there will be post contract claim for increase in the Contract Sum for rectification of errors of omissions, there is a tendency that some major Developers require the Tenderers to verify the accuracy of the Bills of Quantities during the tendering period. Tenderers are required to correct the errors and submit Tender Sums inclusive of rectification of errors. The risks of the errors in the Bills of Quantities are therefore transferred to the Contractors.
  2. Such practice indicates a mistrust of Quantity Surveyors and defeats the original ideas of saving Tenderers’ costs of tendering.
  3. Some Developers argue that, without discrediting Quantity Surveyors, they would rather play safe. They would rather let the Tenderers price high to cover the errors than to let the errors coming up unexpectedly during the post contract thus upsetting the budget plan.
  4. In reality, the tendering period would not be sufficient for the Tenderers to carry out thorough detailed check of the Bills of Quantities. They can only carry out bulk-checking. Competitive market pressure of tendering will deter Tenderers from allowing buffers for errors.
  5. Some Tender Documents will declare that the Bills of Quantities after verification will be deemed to be the Contractor’s Bills of Quantities or Schedule of Quantities and Rates and that the quantities do not form part of the Contract. The Tender Drawings and Specification become the sole basis of the Contract with the Bills of Quantities excluded. A benefit of Bills of Quantities whereby inadequacy in Tender Drawings and Specification can be made up by properly described or measured items in the Bills of Quantities will be lost since the correct measurement is not evidenced from the Tender Drawings and Specification.
  6. The adoption of the practice to require the Tenderers to verify the Bills of Quantities therefore should not be encouraged. A better alternative is to require the successful Contractor to verify the Bills of Quantities within a defined period after award of the Contract. This would save the Tenderers’ costs of tendering and risks of uncertainty, yet give the Clients earlier warning of errors.
  7. Quantity Surveyors should produce Bills of Quantities as accurate as possible for the benefit of every party involved in the project.
  8. However, it should be cautioned that "accuracy" does not mean measuring quantities in unduly fine and tedious details without regard to the time required and the significance of the costs of the items involved. Accuracy must be judged against the costs of the items involved. Priority and emphasis should be given to cost significant items.
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Formats of Bills of Quantities 工程量清单的格式

Formats of Bills of Quantities 工程量清单的格式 KCTang Sun, 21/12/2014 - 01:00
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Sections of Bills of Quantities 工程量清单分部

  1. Traditionally and typically, Bills of Quantities are divided into the following Bills:
    传统及典型的工程量清单分为下列的清单:
    • Bill No. 1 – Preliminaries; 
      ​一号清单: 开办经营费用;
    • Bill No. 2 - Preambles; 
      二号清单: 清单说明;
    • Bill No. 3 - Substructure; 
      三号清单: 基础工程;
    • Bill No. 4 - Superstructure; 
      四号清单:上盖工程;
    • Bill No. 5 - Drainage; 
      五号清单: 地下排水工程;
    • Bill No. 6 - External Works; 
      六号清单: 外围工程;
    • Bill No. 7 - Prime Cost and Provisional Sums; 
      七号清单: 指定项目暂定价及暂定款;
    • Bill No. 8 - Daywork Schedule; and 
      八号清单: 点工费用;
    • General Summary. 
      投标价汇总。
  2. The substructure and superstructure may be further varied as follows: 
    基础工程及上盖工程可变化如下:
    • Bill No. 1 - Preliminaries; 
      一号清单: 开办经营费用;
    • Bill No. 2 - Preambles; 
      二号清单: 清单说明;
    • Bill No. 3 - Basement; 
      三号清单: 地下室;
    • Bill No. 4 - Podium; 
      四号清单: 裙房;
    • Bill No. 5 - Tower; 
      五号清单: 塔楼;
    • Bill No. 6 - Drainage; 
      六号清单: 地下排水;
    • Bill No. 7 - External Works; 
      七号清单: 外围;
    • Bill No. 8 - Prime Cost and Provisional Sums; 
      八号清单: 指定项目暂定价及暂定款;
    • Bill No. 9 - Daywork Schedule; and 
      九号清单: 点工费用;
    • General Summary. 
      投标价汇总。
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Measured Works Bills

  1. Bills No. 3 to 6 in the first example and Bills No. 3 to 7 in the second example are Measured Works Bills because the physical work are measured and presented in these Bills.
  2. Measured Works Bills are usually further divided into Trade Sections arranged according to the trade sequence in Standard Method of Measurement III or the work sections sequence in Standard Method of Measurement IV, e.g.
    • Excavator or Excavation;
    • Concretor or Concrete Work;
    • Bricklayer or Brickwork;
    • etc.
  3. External Works Bill contains items involving all trades. Therefore, it is usual to arrange items in the External Works Bill according to the type of construction, e.g.
    • Site formation;
    • Fence walls;
    • Roads and pavings;
    • Planters;
    • Guard house;
    • etc.
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Page layout of BQ pages

  1. Sample page layout of Measured Works Bill:
  2. Sample layout of Collection page:
  3. Sample layout of Summary page:
  4. Sample layout of General Summary page:
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  1. The positions of the project and contract titles and the company name or logo may be interchanged.
  2. With the popularity of computer use, it is preferred to have the filename shown to help identifying the computer file. The filename should be systematic and self-explanatory.
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BQ Columns

  1. Pages for Measured Works Bills have ruled columns like the following examples:
  2. Pages for Preliminaries, Collection and Summary pages do not have columns for quantity, unit and rate. The columns are as follows:
  3. The Qty, Unit, Rate and Amount columns should be wide enough to accommodate the texts and figures when typed in. The width of the Description column is more flexible.
  4. Bill No. 2 - Preambles do not have ruled columns because the items there are not supposed to be individually priced.
  5. Recent trend is to change the Preambles Bill to a Preambles Section without Bill No. Care however should be made to declare that the Preambles Section still form part of the Bills of Quantities. Alternatively, the Section should be called "Preambles to Bills of Quantities" to evident its status.
  6. Some of the Preliminaries clauses are lengthy and do not directly attract a price. Therefore, prices entered in the Preliminaries Bills are scattered through the pages.
  7. Recent trend is to move the Preliminaries clauses to the Specification and call it "Specification - Preliminaries". Bill No. 1 - Preliminaries then only contains the clause heading of the Specification - Preliminaries. The Specification - Preliminaries without column for pricing can use wider page width and this reduces the number of pages. Bill No. 1 - Preliminaries presents the prices in a more compact manner, and would be convenient and concise if the same Bill is used for subsequent payment valuation since the lengthy descriptions are left out.
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Alphabetical item reference

  1. Traditionally, item references are given as A, B, C, D, E, etc. for items with units. The item references start from A again on every page unless the item continues from the last page.
  2. Headings are not referenced.
  3. When item A on page 3/1 is referred to, it is referred to as BQ item 3/1/A.
  4. Alphabetical reference system using A, B, C is easier to use since every page starts with a new sequence. When an item reference is incorrectly assigned, simply correct it and the subsequent item references on the same page. Subsequent pages would not be affected.
  5. However, if, after assigning the item references, items are inserted or deleted involving shifting of items over pages, alphabetical item references on more than one page would need to be re-assigned.
  6. This works fine before BQ are actually issued for tendering since the item references can be corrected at will. However, if, after issuing the BQ for tendering, insertion of items are required as tender amendments, then it would be undesirable to shift the positions of all subsequent items over the subsequent pages.
  7. If the BQ are typed by typewriters or by word processors, like in the old days, the effect might be reduced if some spaces have been reserved at the bottom of pages or if the font size and spacing are reduced to suit.
  8. However, with the popular use of spreadsheet, database, or BQ production software where the items are automatically tightly printed one after the other and the font sizes are standardized, insertion of items without disturbance to the positions or item references of subsequent items is impossible.
  9. Some people use a new page with the page number designated something like 3.2/1+1 or 3.2/1A to denote an additional page. By this method, the items on the subsequent pages can remain intact. The method requires the software used to produce BQ to be intelligent enough to deal with the additional page number, otherwise the page number will have to be assigned manually.
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Numeric item reference

  1. An alternative to alphabetical reference is to use numeric reference in the form of 1, 1.1, 1.1.1 continuously through the same Trade Section. "3.2/" in the following sample is used to represent the Bill No. Headings are also referenced. When the first item is referred to, it is referred to as BQ item 3.2/1.1.1.
  2. Numeric reference system requires items over all pages to be consecutively referenced. Therefore greater care is required to ensure correctness. If a reference is incorrectly assigned, all subsequent references of the same level will need to be assigned again.
  3. If, after assigning the item references, items are inserted or deleted involving shifting of items over pages, the references of subsequent items of the same level would need to be assigned. For example, if item 3.2/1.3.3 is a newly inserted item, then only the original items from 3.2/1.3.3 onward would need to be re-assigned a reference. Of course, if Heading 3.2/1.3 is a newly inserted item, then all the original headings and items from 3.2/1.3 onward would need to be re-assigned a reference.
  4. The problem of shifting of items over pages or the need for additional pages as described for alphabetical reference system cannot be eliminated with numeric reference system. However, since numeric reference system does not use the page number as part of the complete reference. The page on which a particular item appears is less significant. This would be useful when exchanging BQ on computer files. The item references remain unchanged irrespective of the page width or depth. Numeric item references would also be convenient for data processing.
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Item references according to the Standard Method of Measurement

  • Civil Engineering Standard Method of Measurement of the United Kingdom requires the item references to follow the references used in the SMM.
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Descriptions

  1. There are two styles of writing descriptions. The traditional way is to write it in the natural style of the language, e.g. Concrete Grade 10/20 in 75 mm blinding layer. Such style can be extremely flexible.

  2. The other way is to build up the descriptions from small tokens, e.g. Concrete ; Grade 10/20 ; blinding layer ; 75 mm. Such tokenised description style is the result of the adoption of standard phraseology for BQ production by computer. Takers-off are presented with choices of tokens on the menus on computer screens to select for building up the complete description. Tokenised descriptions help enhance the uniformity of descriptions and help data-processing because the descriptions are structured. However, they are not natural to read and may sometimes be cumbersome for simple items. " ; " with a space before and after is usually used to separate tokens. This would have significance when sorting the descriptions by computer. " ; " beginning with a space will be sorted before "" without a space.

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Extra over or extra for

  1. Extra over items are measured when additional work is required on part of a principal item and it would be tedious or artificial to split the principal items into two: one with the additional work and one without the additional work.
  2. The volume, area, length or number of these extra over items are included in the measurements of the quantities of the principal items in which they occur and the prices for these items are to be extra only over the prices of the items in which they occur. In other words, the quantities of the principal items would not be reduced by reason of the measurement of the extra over items.
  3. Examples of extra over items are:
    • Extra over excavation and disposal (measured Cube) for breaking up and removing pavings, surface concrete and the like (measured Super or as an Item);
    • Extra over concrete in beams and slabs (measured Cube without deduction of the volume of the haunching) for a stronger grade of concrete in haunching at abutment with columns or walls (also measured Cube);
    • Extra over common brickwork (measured Super without deduction of the area with facings) for facings (also measured Super);
    • Extra over stone walling (measured Cube or Super without deduction of the volume or area with facings) for facings (measured Super);
    • Extra over roof tiling (measured Super without deduction of the area of the double courses) for double courses (measured Run);
    • Extra over wood block flooring (measured Super without deduction of the area of the border) for border (measured Run);
    • Extra over timber doors (measured Super without deduction of the area of louvred openings or enumerated) for forming lourved openings (enumerated);
    • Extra over tiling (measured Super without deduction of the area of special tiles) for tiles rounded on one or two edges or special tiles at angles or corners (measured Run or enumerated);
    • Extra over plumbing and drainage pipework (measured Run without deduction of the length occupied by fittings) for fittings like bend, tees, junctions, etc. (enumerated).
  4. The general pattern to write extra over items is: "Extra over principal item for additional work". However, if it is clear as to which are the principal items, the expression may be simplified to "Extra for additional work". Generally items using this simplified expression follow closely behind the principal items. The principal items may not necessarily be a single item but may be a group of items where the extra over work is the same. For example:
  5. Expressions like "Extra only over principal item for additional work" and "Extra over the last item for additional work" can also be used.
  6. Expressions like "Extra over for additional work" are not preferred.
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Range

  • Where items are to be described in ranges, a short form is used, for example:
    • "0 - 0.10 m2 opening" means opening not exceeding 0.10 m2 in size;
    • "1.50 - 3.00 m deep" means exceeding 1.50 m but not exceeding 3.00 m deep;
    • "75 - 150 mm girth" means exceeding 75 mm but not exceeding 150 mm girth.
    • "exceeding" means greater than.
    • "not exceeding" means less than and equal to.
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Ancillary items

  • The descriptions should be adequate to cover ancillary work or service which are not deemed to be included for in the unit rates by the Preambles.
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Headings

  1. Headings are used for grouping of items of similar elements or constructions to simplify the length of descriptions. As a rule, if there are two or more consecutive items of very similar descriptions, they should be put under a heading. The heading should cover the repeating portions of the descriptions. Compare the following first four items written with or without headings:
  2. Notice that a short line precedes the last item above to signify that the heading to the preceding items no longer apply to this item.
  3. If there may be confusion as to the end of the application of headings, words like "(End of ALL PROVISIONAL) " may be used.
  4. It should be noted that the heading and the description can be read together as if they are one complete description. The word "to" is essential for this continuous reading.
  5. Some people omitted the word "to", the meaning would remain unchanged, but the continuous reading is interrupted.
  6. In cases where the heading and description cannot be read continuously, it is preferred to repeat the subject matter in the description. Compare the following examples:
  7. The first level of headings may be called Main Headings and the lower levels of headings may be called Sub-headings.
  8. Headings where applicable are repeated on the beginning of each page and finished with the word "(Cont’d) "
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Singular and plural

  • It is usual to write headings in plurals and write the principal subject of the descriptions in singular sense and the ancillary items in plurals. In the above examples, "Screeds" in the headings is a plural while "Screed" in the descriptions is singular. "Beam" in "sides and soffit of beam" is singular, while "sides" is a plural and "soffit" is singular to signify that for a typical beam, there are two sides and one soffit.

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Punctuations

  1. Descriptions of measured items usually do not end with a full stop. Descriptions of Preliminaries, Preambles and note items are given full punctuations.
  2. Headings which are supposed to read continuously with the descriptions are traditionally ended with "" or ":- ". However, recent trend omits to use them.
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Secondary quantities

  1. The Standard Method of Measurement may require that further information as to quantities be given in the descriptions. Such information may be given in the following manners:
  2. Some people call the secondary quantities in brackets a "trigger".
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Sequence

  • Items in Bills of Quantities within the same Bill or Trade are to be sequenced according to the following rules:
    • According to sequence required by the Standard Method of Measurement such as the Civil Engineering Standard Method of Measurement of UK.
    • In case of no specific requirements in the SMM, headings are given according to the sequence of construction.
    • Items under the same headings are sequenced according to the units in the order of: Item, kg, m3, m2, m, No.
    • For the same units, items are sequenced from the cheapest to the most expensive.
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Units

  1. The usual units of billing are:
    • kg - for items given by weight;
    • m3 - for items given by volume;
    • m2 - for items given by area;
    • m - for items given by length;
    • No. - for items given by number;
    • Item - for items not given by quantities but to be priced as a lump sum price.
  2. An alternative way to say some of the above is:
    • m3 - for items given Cube;
    • m2 - for items given Super;
    • m - for items given Run or for lineal items;
    • No. - for enumerated items.
  3. Cube, Super, Run, No. were used with the imperial system of units. However, some people still use them for metric system since they are less prone to typing errors than m3, m2 and m.
  4. The following should be noted:
    • "kg" begins with "k" not "K";
    • "Item" is capitalized;
    • "Super" can be abbreviated to "Sup. ";
    • "Nr" or "Nr. " can be used instead of "No. ";
    • "Pair" and "Set" may sometimes be used;
    • "Manday" or "Hour" may be used for Dayworks items;
    • "t" or "MT" may be used for metric tonne;
    • "Note" may be used for note items.
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Quantities

  1. Quantities should be given to the nearest whole units. In case a quantity is too small to be a whole unit, it should be given as one. Better still, the unit of measurement should be reviewed to see whether an alternative unit is more appropriate to reflect the smallness of the item, e.g. enumerated instead of given Cube.
  2. Extreme care should be exercised during tender analysis to ensure that an item of very small quantity would not be priced at excessively high rates in expectation for major increase in the quantities through variations.
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Rate only items

  • If an item is to be a rate only item for obtaining rate only without quantity, the word "Rate Only" should be inserted in the quantity column against the item.

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Rates and amounts

  • The column width of the Rate and Amount columns should be wide enough to allow for the figures to be given to two decimal places.
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Extending the total

  • The Amount column is also called the "Extension" column. Multiplying the quantity and rate to give the amount and entering the amount is called extending the total.

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Casting down the total

  • Totalling the extensions to arrive at the page total is called casting down the total.
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Carried forward / brought forward

  1. Carrying the running total from one page over to the next page is usually signified by the words "Carried forward" at the bottom of the first page and the words "Brought forward" at the top of the second page against the left hand side of the figure carried, as follows:
  2. The words may be simplified to "C/F" and "B/F" without the figures as follows:
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Carrying the total

  • Carrying the page total to the Collection page and to the Summary page is called carrying the total.
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Style and consistency

  • There can be equally workable but different styles to present the format of and descriptions in Bills of Quantities. However, it is very important that within the same set of Bills of Quantities, the style and descriptions used must be consistent throughout. If the same kind of work appearing in different sections of the Bills of Quantities is given different descriptions, it may lead to claims. Consistent style will ease the reading and understanding of the Bills of Quantities and improve the quality of the Bills of Quantities.
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Model bills and past BQ

  • Office Model or Standard Bills or BQ of past similar projects should be referred to for descriptions. They can also serve as useful check-list for any missing items.

The folllowing are discussions regarding BQ format in Mainland China

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项目名称

  1. 试看看下列例子的项目名称,是否很容易判断出它们的分别:
  2. 又试看看下列的例子,是否很容易判断出它们的分别:
  3. 后一个例子应该较易分辨不同项目的差别,而且较省纸张。
  4. 香港及外地的工程量清单习惯把工程项目名称分层表示,每一标题代表一个层次,整个项目名称乃综合几个标题及本项说明一并阅读理解。层次的多少视乎同类项目的多少及变化而定,通常为两至三个层次,若太多亦不太好。用英文时,通常第一层标题全部用大写,有底线;第二层标题就不用大写,用粗体,有底线;第三层有底线及会缩排。诸如此类的变化以分辨。中文字就没有大写,但可用字形、粗斜体、底线、缩排来分辨。例如:
  5. 如果同类的只有一个项目,旧式的方法是在项目之前加一条短线以表示这项目不是属于前一项目的标题所管辖。例如:
  6. 为了维持一致性,建议就算单一项目都有标题,例如:
  7. 上述例子还可以有变化,若柱高或梁高有较多的变化,可能需要将柱高梁高写在本项说明内。
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文字的表示

  1. 文字说明,除分部名称外,应靠左,分部名称可置中。
  2. 下列的例子两个写法,意义都一样,左边的较口语化,右边的适用于电子计算软件自动排列顺序:
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数字的表示

  1. 试看看下列的例子,那一个编排方法较易判断出个别数字的分别:
  2. 数量、单价及金额等涉及数字的栏目,应靠右,不要靠左或置中,并应有千位符号。
  3. 工程数量不表示小数,较为实际好用。
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清单编号

  1. 单项、单位、分部工程量清单可使用相关的编号,例如1.2.3代表第1 单项、第2单位、第3分部。
  2. 香港通常用把每分部工程量清单编一个码。
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序号

  1. 序号作为项目在清单的顺序可有不同的编排方法:
    • 整份清单一组序号,只适用于有较少项目的清单;
    • 每页內的項目独立序号,例如:A, B, C;
    • 分部或分组工程量清单独立序号,例如:
  2. 请注意上表加了清单编号及小计。
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编页、分册及目录

  1. 清单编号及页码要有系统地编列。
  2. 过厚的文件应适当地分册。
  3. 应维持有内文页码的目录。
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Preparation upon Commencement of Production of Bills of Quantities 编写工程量清单前的准备

Preparation upon Commencement of Production of Bills of Quantities 编写工程量清单前的准备 KCTang Tue, 23/12/2014 - 18:39
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Forming a team 组建小组

  1. Each project should have a Project-in-charge
    每一個项目都应有一個项目负责人
  2. The Project-in-charge should be, depending on the level of delegation of authority, a Director, Associate Director, Assistant Director, Partner or Associate of the QS firm.
    视乎获授权的程度,项目负责人应为工料測量师事务所的董事、副董事、助理董事、合伙人或副合伙人
  3. The Project-in-charge should: 
    项目负责人应:
    • estimate the human resources and time required
      估计所需人手及时间
    • appoint team members
      指派人选
    • appoint a team leader
      选定组长
  4. The team leader should: 
    组长应:
    • be an experienced surveyor
      为一个有经验的測量师
    • liaise with the Client and the Designers
      与发包方及设计方保持联系
    • understand the requirements of the Works
      了解工程要求
    • understand the time arrangement
      了解时间安排
    • obtain the drawings
      取得图纸
  5. The other team members should be surveyors or assistant surveyors of suitable grades
    组员应为适当级别的測量师或測量技术员
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Briefing meeting 交底会

  1. A briefing meeting should be held when the major drawings are sufficient enough to enable production work to commence
    主要图纸齐备,可以开工,便要举行交底会
  2. The meeting should be chaired by the Project-in-charge
    应由项目负责人主持交底会
  3. The appointed team members should attend
    选定的编标小组成员应叁加
  4. To discuss and clarify the following matters:
    讨论及明确下列事情:
    • Scope of measurement
      计算的范围
    • Method of measurement and Preambles
      工程量计算规则及清单说明
    • Bills and trades classification
      分部清单的划分
    • Drawings and Specification
      图纸及规范
    • Staff allocation
      人手分配
    • BQ production programme
      编标计划进度表
  5. People who join the team later may be briefed by the team leader
    较后加入的组员,可由组长指导
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Scope of measurement 计算的范围

  1. The scope of measurement required for the Bills of Quantities should be clarified: 
    应明确工程量清单所需计算的范围:
    • Extent of previous contracts, such as piling contract, site formation contract
      已完成工程的范围,例如打桩、场地平整等
    • Items to be covered by prime cost rates
      采用暂定单价的项目
    • Items to be covered by prime cost sums to be supplied by Nominated Suppliers or carried out by Nominated Sub-Contractors
      由指定供货商供应的物料及指定分包方负责执行的工程
    • Goods to be supplied by the Employer
      由发包方供应的物料
    • Items to be carried out by others, such as landlords, tenants, Government Authorities, Public Utility Companies, etc.
      由其他人负责执行的工程,例如大业主、租户、政府机关、市政单位、等
    • Items to be measured provisional because of insufficient drawings, e.g. reinforcement
      因图纸不全要以暂定工程量代表的项目,例如钢筋
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Method of measurement and Preambles 工程量计算规则及清单说明

  1. Identify which version to be used of: 
    确定采用那套:
    • Standard Method of Measurement
      标准的工程量计算规则
    • Standard Office Preambles
      公司的标准清单说明
  2. Discuss and identify any deviations from the SMM to suit the special nature of the project
    讨论及确定为适应本项目特性而要与标准的工程量计算规则的偏离
  3. The deviations may be standard within the office or may be specially devised for the project
    偏离可能是公司的标准或是为本项目特定的
  4. The Standard Office Preambles should be referred to for the standard deviations
    公司的标准偏离可参考公司的标准清单说明
  5. Special deviations should be written into the Standard Office Preambles to form the Project Preambles
    为本项目特定的偏离应写进公司的标准清单说明内,变为本项目的清单说明
  6. Special deviations may also be found necessary during the course of BQ production
    偏标过程中也可能发觉需要特殊的变离
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Bills and trades classification 分部清单的划分

  1. How the Works to be measured are to be divided into Bills and Trades should be discussed and clarified, e.g. 
    确定如何划分,例如:
    • by buildings and parts of a building, e.g. Substructure or Basement, Podium, Tower 1, Tower 2, Drainage, External Works
      按楼房及其分部,例如基础或地下室、群楼、1号塔楼、2号塔楼、地下排水、外围
    • then by work sections, e.g. piling, excavation, concrete work, blockwork, finishes, plumbing
      按工程分部,例如打桩、混凝土、砌体、装饰、地上给排水
  2. For projects where various cost centres are used, the Bills may be divided accordingly for cost control purposes
    需要划分不同的成本核算中心的项目,清单可能亦需要相应划分,以便成本控制
  3. For projects which break down the Works into activities for programme and cost control purposes, the Bills may be divided into activities
    需要把工程按工序划分以便控制进度和成本的项目,清单可能需要按工序划分
  4. The divisions should facilitate: 
    应利于:
    • bulk-checking
      复核
    • payment valuations using simple percentages based on visual progress
      按形象进度打简单比例计算进度款
    • cost monitoring and control, such as by cost centres
      造价跟踪及控制,例如成本核算中心
    • cost analysis
      造价指标含量分析
  5. If all quantities of the Works are lumped together without suitable divisions: 
    若没有适当的划分:
    • the use of Bills of Quantities will be greatly diminished
      工程量清单的用处大大减少
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Nomenclatures 用词

  1. "Substructure" generally includes all work up to the structural top levels of the lowest floor slabs, but excludes floor finishes thereon
    "基础" 一般包含最底层地板结构面标高以下的所有工作,但不包括该地板面饰面
  2. "Superstructure" generally includes all works above the structural top levels of the lowest floor slabs, and includes floor finishes thereon
    "上盖结构" 一般包含最底层地板结构面标高以上的所有工作,包括该地板面饰面
  3. "Lowest floor slabs" means the lowest floor slab at a particular location: 
    "最底层地板" 意指在某位置的最底层地板:
    • Ground floor slabs will generally be the lowest floor slabs in the absence of a basement
      一般来说,若没有地下室,首层地板便是最底层地板
    • The bottom slab of basement will be the lowest floor slab
      地下室的底板便是最底层地板
    • The lowest floor slabs may not necessarily be of the same level; they may have different levels
      最底层地板的标高不一定是完全一样,它们可能有不同的标高
    • Walls and columns between two adjacent lowest floor slabs at different levels should be regarded as part of the Substructure while the walls and columns above the higher of the two lowest floor slabs should be regarded as part of the Superstructure
      相连但标高不同的两块最底层地板之间的墙及柱应归入基础,而高于该两块底层地板的墙及柱应归入上盖结构
  4. "Basement" generally includes all works above the Substructure up to the structural top levels of basement top slabs, and includes all architectural works inside the basement. 
    "地下室" 一般包含基础之上到地下室顶板面标高的所有工作,包括地下室内的建筑工作
  5. "Podium" generally includes all works above the Substructure or Basement up to the structural top level of the podium roof, and includes all architectural works inside the podium and all external wall finishes, roofing, landscaping, parapets and minor structures on the podium roof, but excludes the floor finishes within the footprint of the tower blocks
    "群房" 一般包含基础或地下室之上到群房顶板结构面标高的所有工作,包括群房内的建筑工作、外墙饰面、屋面层、屋面的绿化、女儿墙及小型构筑物
  6. "Tower" generally includes all works of the tower blocks above the Podium and includes the floor finishes within the footprint of the tower blocks
    "塔楼" 一般包含群楼之上塔楼的所有工作,包括塔楼脚印以内的楼面饰面
  7. Reinforcement starter bars are generally included in the sections from which they project
    钢筋的插筋一般归入它们预埋的部位
  8. According to the Standard Method of Measurement of Building Works, the "Plumber" or "Plumbing" trade includes all water supply, rainwater, soil and waste disposal work above ground, while the "Drainlayer" or "Drainage" trade includes all surface water drainage, stormwater and soil and waste drainage underground. Engineers usually call rainwater, soil and waste disposal works above ground as "drainage" as well. To distinguish, the terms "Above-ground drainage" and "Underground drainage" are used. In Bills of Quantities, the Plumber trade is usually given separately under the Basement, Podium and Tower Bills. Since the Drainlayer trade is common to the buildings, it is usual to put it as a separate bill as the Drainage Bill for the underground drainage. Independent surface water channels are usually billed under the Drainage Bill. Surface water channels formed in concrete slabs or roads and pavings are usually billed with the concrete slabs or roads and pavings as extra over items
    跟据标准的工程量计算规则, "水管工程"这工种在英语包含地上的给水、排雨水、排污水、排废水的工作,而"渠务工程" 这工种包含地面排水、地下的排雨水、排污水、排废水的工作。工程师通常把地上的排雨水、排污水、排废水的工作亦称为地下的排雨水、排污水、排废水的工作
  9. "Plumbing" according to the Standard Method of Measurement of Building Works includes all water supply, rainwater, soil and waste disposal works above ground
  10. "External Works" include all works outside the buildings, and may include works outside the site. If the footprint of the basement is larger than the podium, the additional covering on top of the basement top slabs will usually be grouped under the External Works
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Drawings and Specification 图纸及规范

  1. The Drawings and Specification from which the Bills of Quantities are to be measured should be obtained. It is very usual that they are not always provided in full upon commencement of taking-off
  2. 检查图纸及规范的质量
  3. 商议未齐备图纸的提供时间
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Staff allocation 人手分配

  1. The overall time allowed for the production of the BQ should be clarified. The time when the Drawings and Specification will be provided by the Architects and Engineers should be noted
    明确出标日期
    讨论交接安排
    讨论要多少人
    讨论预定工时
  2. Within the allowable time frame, the number of working days or hours to complete the BQ production should be estimated so that the size of the team can be established
  3. The Works are generally divided into the following groups for measurement by separate people: 
    讨论如何分工:
    • Excavation and structure including reinforcement
      土方及结构
    • Internal, external and roof finishes
      内外装饰
    • Non-structural walls and partitions
      隔断
    • Fittings and sundries
      家具装置
    • Plumbing and drainage
      给排水
    • Fire services
      消防
    • Electrical installation
      电气
    • Air-conditioning installation
      空调
    • External Works
      室外总体
  4. The first two items above will be the most time consuming, and should be started as early as possible. For bigger projects, each of these items may be shared by more than one Surveyor
  5. Non-structural walls and partitions should preferably be measured by the same Surveyor measuring finishes because of his familiarity with the layout and dimensions
  6. More experienced Surveyors should handle fittings and external works
  7. A team of 4 Surveyors should be the normal team size for a multi-storey single block of building
  8. Housing estates with huge podium and extensive external works may need 8 to 10 Surveyors
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BQ production programme 编标计划进度表

  1. Having established the team size, a BQ production programme should be drawn up either in bar chart or in a table form to show the allocation of work amongst the team members and the time frame allowed
    按交底会讨论画出
  2. The programme should indicate the times allowed for taking-off and other activities after taking-off such as editing, bulk-checking, correction and printing
    表示个人计量时间外
    还要预留编辑、复核、更正、打印、复印的时间
  3. Critical dates for receipt of outstanding information should also be shown
    表示关键的取图纸、出标日期
  4. The programme should be reviewed regularly against the actual progress to identify any slippage and remedial actions taken to cope
    定期检讨进度,追索资料,调动人手
  • Sample Format 格式例:
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Preambles 清单说明

Preambles 清单说明 KCTang Tue, 23/12/2014 - 19:39
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Functions of Preambles

  1. The Preambles Bill or Section describes general information and rules which are common to and applicable to the Measured Work Bills
  2. The Preambles Bill or Section generally describes:
    • Definitions and terminology
    • Special method of measurement deviating from the Standard Method of Measurement
    • Rates to include items which describe work or costs to be included in the unit rates
  3. Additional Preambles clauses to give further information as required by the Standard Method of Measurement or as required for the Works are usually given in the Measured Work Bills preceding the relevant measured items
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Special method of measurement

  1. In principle, the rules of the Standard Method of Measurement should be strictly followed. However, in case special deviations or clarifications are required, Preambles clauses should be included to state the special method of measurement
  2. When writing the special method of measurement, it is preferred that the clauses of the Standard Method of Measurement from which deviations are to be made should be specifically stated in this manner: "Notwithstanding clause xxx of Section YYY of the Standard Method of Measurement, ZZZ has been measured ….. "
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Rates to include items

  1. The Standard Method of Measurement requires that certain clauses be given in the Preambles to describe the scope of work or costs to be included in the unit rates
  2. Apart from these mandatory Preambles clauses, there may be special Preambles clauses which are necessary to amplify the descriptions in the Measured Work Bills
  3. All these Preambles clauses defining the scope of unit rates are called "Rates to include items" or the scope is called "Item coverage"
  4. The Preambles clauses are usually written in the style of: "The rates for <work> shall include for <item coverage>"
  5. The following are alternatives to "shall include for":
    • shall be deemed to include for
    • shall be held to include for
    • are deemed to include for
    • are held to include for
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Using Preambles

  1. The Standard Office Preambles should be used as the base for drafting the Preambles for a particular project
  2. Preambles for other projects may be referred to for any special clauses. However, it would be dangerous to use another Project Preambles as the base for drafting for a new project since the deletions from or additions to the Standard Office Preambles specific for the old project may not be applicable to the new project and fine changes may easily miss the reader’s attention
  3. Amendments to Office Standard Preambles for a particular project must be subject to strict control. Any special Preambles clauses considered necessary during the course of BQ production should be discussed and clarified with the Supervisor-in-charge, above the level of team leader
  4. Similar to the Specification, the Preambles should be lined through
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形式

  1. 清单说明或称"清单序言"
  2. 以2号清单或独立文件列出
  3. 本身不套单价
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清单说明的功能

  1. 为计量分部清单的常用词定义
  2. 说明适用于计量分部清单的规定
    • 特殊的,与某计量分部清单较密切的,可在该分部清单开始处说明
  3. 说明与标准工程量计算规则有偏离的地方
    • 标准工程量计算规则有些地方或不太适用于本工程的情况,应适当地偏离
  4. 说明单价包含的内容
    • 按标准工程量计算规则的规定要予以特别说明的单价包含内容
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编写清单说明

  1. 应使用公司的标准作为修改的蓝本
  2. 再比对其他同类工程看看有没有适用的特殊修订
  3. 跟清单说明一样,要画线清理
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Measurement (Taking-off) 计量

Measurement (Taking-off) 计量 KCTang Tue, 23/12/2014 - 22:14
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Taking-off 计量

  • The process of measuring the quantities is called "taking-off". Person(s) taking-off are called "Taker(s)-off"
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Reading Standard Method of Measurement 阅读标准工程量计算规则

  1. The Standard Method of Measurement to be used should be clarified during the briefing session upon commencement of taking-off
    采用的标准工程量计算规则在开始计量的交底会确定
  2. Inexperienced Takers-off should read the relevant sections of the Standard Method of Measurement before taking-off
    生手计量员应在计量前阅读了解计算规则
  3. Experienced Takers-off should review the relevant sections of the Standard Method of Measurement from time to time during the course of taking-off
    熟手计量员应不时重温计算规则
  4. Upon completion of taking-off, all Takers-off should take a final review of the Standard Method of Measurement to ensure that there are no missing items to be measured
    计量完毕,全部计量员应翻阅计算规则,确保没有错漏
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Extra attention to be paid to how to treat: 特别要注意如何处理的:

  1. Working space, slopes of excavated spaces
    工作面、放坡
  2. Staging
    步距
  3. Wastage
    损耗
  4. Laps, intersections
    搭接、交叉
  5. Circular work
    弧形
  6. Deductions for openings
    扣除孔洞
  7. Extra over items
    补差计量
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Work measured net

  • Measure all work net as fixed in place, unless otherwise stated
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Order of dimensions in BQ or dimension sheets

  • Generally in the sequence of length, width and height
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Range

  • A - B = exceeding A but not exceeding B = "> A but <= B"
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Pipe and tubing

  1. Pipe size: to be described by nominal sizes(HKSMM4) vs by internal diameter (HKSMM3)
  2. HKSMM3 only:
    • Small pipes = pipes < 55 mm diameters
    • Large pipes = pipes 55 - 110 mm diameters
    • Pipe size stated = pipes > 110 mm diameters
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Circular work

  • HKSMM3 only:
    • Small radius = 0 - 300 mm radius
    • Medium radius = 300 mm - 1.50 m radius
    • Large radius = radius > 1.50 m
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Piling

  1. Commencement level / commencing level:
    • Identify the commencement level of piling - existing ground level, level after general site levelling or bulk site formation, or bottom level of footing or basement excavation
    • State the commencement level in the BQ - the commencement level may not always be the formation level as stipulated by the SMM
  2. Usual items:
    • Mobilization and demobilization
    • Trial piles
    • Preformed portion (whole piles, linings only, driven or placed):
      • Supplying
      • Reinforcing if not described to be included in the supply
      • Driving
      • Dollying
      • Cutting
      • Withdrawal
    • Cast in-situ portion (whole piles, fillings only, pre-boring):
      • Boring
      • Reinforcing
      • Casting
      • Cutting
    • Heads, shoes
    • Testing:
      • Before piling
      • During piling
      • After piling
  3. Usual units:
    • Area for steel sheet piles or contiguous piles - Measure the area in plane (not developed) elevation along the centre line of steel sheet piles
    • Length for piles in isolated pieces
    • Length or number for extra over items or isolated items
  4. Supplying preformed portion (including handling, transporting and pitching) :
    • Describe clearly the method of measurement of the area or length or number of supply
    • HKSMM5 does not specifically state how the length is to be measured to give the supply quantity of steel sheet piling or precast concrete piles
    • It only requires the "design length" to be stated, but does not say that this is the length to be measured for supply quantity
    • "design length" is defined by HKSMM4 as the length specifically required by the designer. However, the designer often does not specifically specify the design length. He usually only specifies the length below cut-off. It is therefore essential to define design length or describe the supply length measured, e.g. as driven length or length below cut-off, with or without allowance for extra length above the top
    • The supply length can in some cases be shorter than the driven length if the top is required to be driven below ground (dollying)
  5. Driving piles:
    • Measure from commencement level of driving to bottom level of driven pile
  6. Corner piles, junction piles and other special piles to steel sheet piles:
    • Measure as extra over the supplying and driving items "respectively" of the steel steel piling into which they occur
    • Since the supply area may not be the same as the driven area, therefore, "respectively" should mean "separately" for supply items and driving items, or the description of the extra over items should be clear enough
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Excavation

  1. Commencement level / commencing level:
    • Identify and state the commencement level of excavation
    • Usually, the commencement level would be the existing ground level or the formation level whichever is the lower at a particular point
    • Usually, "formation level" means the underside of the hardcore bed or blinding level of the lowest floor slab or external paving
    • Usually for a site to be "cut", i.e. formation level lower than existing ground level, the site would be formed to the formation level first, and foundations excavation would commence from the formation level
    • Usually for a site to be "filled", i.e. formation level higher than existing ground level, foundations excavation would commence from the existing ground level, backfilled and filled up to the formation level
    • "Usually" means that the definitions for specific projects should be defined and described in the BQ
  2. Working space:
    • 0.25 m from the face of concrete requiring formwork where the formwork does not exceed 0.60 m in height
    • 0.60 m from the concrete requiring formwork where the formwork exceeds 0.60 m in height AND the bottom of the formwork exceeds 0.60 m below the commencement level of excavation
    • 0.60 m from the finished face of work below ground level where externally applied dampproof coverings or protection walls are required or where the method of construction requires workmen to operate from the outside (NOTE, "ground level" should mean that when the workmen go down to do the coverings or protection walls but this should be clarified in the BQ)
  3. Usual units:
    • Number for post holes not exceeding 0.30 m3
    • Length for trench excavation
    • Area for surface excavation not exceeding 0.20 m in average depth
    • Area for backfilling or filling not exceeding 0.30 m in total depth
    • Volume for other excavations, filling and disposal
  4. Balancing:
    • Excavation = surplus disposal + backfilling
    • Import fill = filling to make up level - surplus disposal from excavation
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Concrete works

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Drainage

  • When classifying drainage trench excavations by the total depth in stages of 1.50 m, with the average depth stated in multiples of 0.25 m, instead of taking the maximum total depth at the one end of the trench and measuring the whole length into that deepest stage, the length of the trench should be divided into different sections according to the total depth stages and the average depth taken for the different sections
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Finishes and roofing

  1. Related items should be measured as a composite items before billing to ensure consistency in quantities. e.g. plaster and paint; tiling and screed; roofing tile, waterproof layer, insulation layer, screed, etc.
  2. Adjustments to be made for differences, e.g. bands, borders, channels, curbs, etc.
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Swimming pool measurement checklist

  1. Excavation:
    • Excavation to reduce levels
    • Excavation for swimming pool
    • Backfilling
    • Disposal
  2. Concrete:
    • Concrete blinding layer
    • Waterproof reinforced concrete in sides and bottom
    • Waterproof reinforced concrete angle fillet including formwork
    • Housing for scum channel
  3. Formwork:
    • Formwork to sides of swimming pool
    • Formwork to soffit of suspended swimming pool
    • Opening for view panel
  4. Reinforcement:
    • Steel bar reinforcement, stirrups, binders, etc.
  5. Waterproofing:
    • Waterproof membrane on sides and bottom of swimming pool
  6. Finishes:
    • Waterproof cement and sand rendering on sides and bottom of swimming pool and behind scum channel
    • Tiling and waterproof screed on sides and bottom of swimming pool
    • Scum channel in tile
    • Steps in tile
  7. Steel and metal works:
    • Cat ladder or step iron
  8. Pipework:
    • Puddle flange connector
    • Water supply pipes
    • Water supply outlets
    • Drain pipes
    • Drain outlets
  9. E&M works:
    • Filtration system and boiler
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Water tank measurement checklist

  1. Concrete:
    • Waterproof reinforced concrete
    • Waterproof reinforced concrete angle fillet including formwork
    • Reinforced concrete plinth
  2. Formwork:
    • Formwork to sides and internal soffit of water tank
    • Left-in formwork to external soffit of water tank
    • Left-in formwork to form gap between walls
    • Formwork to concrete plinth
    • Boxing to form openings
  3. Reinforcement:
    • Steel bar reinforcement, stirrups, binders, etc.
  4. Waterproofing:
    • Waterproof membrane/coating on top
    • Waterproof membrane/coating on internal sides and bottom
  5. Finishes:
    • Waterproof cement and sand rendering to internal sides and bottom of non-potable water tank
    • Tiling and waterproof screed on internal sides and bottom of potable water tank
    • Finishes to top and external sides
  6. Steel and metal works:
    • Cat ladder or step iron (inside & outside)
    • Trap door or cover
  7. Pipework:
    • Puddle flange connector
    • Water supply pipe
    • Drain pipe
    • Overflow pipe
    • Air vent
    • Ball float valve
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Door measurement checklist

  1. Doors and frames:
    • Door leaf
    • Vision panel
    • Louvred panel
    • Door frame including bedding and pointing frames
    • Intumescent strip around fire rated doors
    • Architrave
    • Ground behind door frame
  2. Ironmongery
  3. Sundry metalwork:
    • Holdfast to door frame in brick and block wall
    • Anchor bolt to door frame in concrete wall
    • Floor dowels
  4. Painting:
    • Painting to door leaf, door frame, architrave and ground
  5. Sundry concrete:
    • Lintol
    • Wire mesh for lintol
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Mode of taking-off 计量的手法

  1. Measurement should be done in a logical manner
    应按有系统的次序计算
  2. For example, following the construction sequence or alternative logical sequence
    例如按施工顺序或主客关系
  3. Consistently from one direction to the other direction
    一致从一方算至另一方
  4. Setting out dimensions in a consistent manner of length, width and breadth
    将尺寸按长阔高的须序输入
  5. Avoiding breaking down irregular shapes into small pieces and then adding up
    避免把不规则的形状分拆得太细来计算然后加总
  6. Measuring overall first and making adjustments
    应计最大框,然后扣减调整
  7. Measuring related items in composite manner, e.g. tile and screed, plaster and paint, all layers of roof covering
    以组合式的方法把关连项一起计,编清单时才分项,例如块料面层和找平、屋面层
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Long hand dimension sheets 长式计算纸

  1. Calculations may be set out in the usual arithmetical form:
    计算可如一般的算式列出:
  2. This uses less paper, but is difficult for comparison and inspection for errors
    这样非常省纸,但难于对比和检查错误
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Traditional dimension sheets

  1. Traditional dimension sheets used to take-off quantities take the following form:
  2. Dimensions are set in vertical stack, in the order of length, width and breadth. A line is used to separate each set of dimensions
  3. Timesings are written on the left column. In this column, "/" means multiply, not divide. "" means add, an action called "dotted on"
  4. The products are given in the right column
  5. The descriptions are very much abbreviated to reduce writing
  6. The calculation in the description column is the build-up of one of the dimensions. It is called a "waste calculation" or "side-cast"
  7. The annotations "bm B1", "bm B2" in the description column are to identify the locations of sets of dimensions. This action is called "sign-posting"
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Another kind of dimension sheets

  1. Another kind of dimension sheets is to lay out the dimensions horizontally as follows:
  2. The products of dimensions are not written one by one. Only the total of the products is entered. This is made feasible with the popular use of electronic calculators with memory function. It would be faster to calculate once more than write down all the products before summing up
  3. Laying out the dimensions horizontally actually improve the presentation and make comparison of dimensions easier
  4. The right hand columns can be utilized as rate and extension columns for final account purposes
  5. The following dimension sheet records the dimensions in a systematic manner. This makes comparison and identification of errors easier, and can measure concrete and formwork at the same time: 
    下列的计算表,把尺寸按一定的格式列出,对比清楚,找错容易,兼可同时计混凝土及模板:
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Squaring 运算

  1. The process of calculating the totals of dimension sheets is called squaring. The person is called a "Squarer" or "Comptometer"
  2. To ensure correctness, each calculated total entered by a Squarer must be counter-checked and initialled by another Squarer. Squaring is a tedious process even with the help of electronic calculators before the use of computer spreadsheets or BQ production software
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Abstracting

  1. Traditional dimension sheets measure more than one item on the same sheet. The same BQ item may appear on more than one sheet. Therefore, it is necessary to collate the individual quantities of the same BQ item appearing on more than one dimension sheet together to arrive at the grand total
  2. A summary schedule is used to bring together the individual quantities to add up the grand total. The process of transferring the individual quantities from dimension sheets to the summary schedule is called "abstracting"
  3. 计算纸或计算表列式后要运算
  4. 用普通计算器及人手计算的要另外有人复核并签署
  5. 用电子计算器及软件计算的,要建立复核公式复核
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Billing 汇总卡

  1. The items in the summary schedule are then transferred to the draft BQ pages in the correct sequence with the descriptions expanded in full without abbreviations
  2. This process is called "billing" and requires experienced Surveyors to do
  3. The whole process from squaring to billing is called "working up"
  4. 计算纸或计算表运算后要汇总
  5. 工程量清单某分项数量可能要由几张计算纸或计算表得出,所以要汇总
  6. 每一个工程量清单分项都有一张卡,可以A4纸分为二
  7. 每卡都写上工程量清单分项的工程合同名称、卡号、清单号、分项说明、单位、计算纸或计算表编号、搬来数量、汇总数量。 格式例:
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Transferring 转移

  1. Information is transferred from the dimension sheets to the summary schedule to the draft BQ. Every transfer of descriptions, units and quantities has to be counter-checked by another Surveyor. The actions are called "transferring" and "transfer-checking" or "to check transfer"
  2. 从计算纸或计算表转移到汇总卡后要他人复核签署
  3. 从那里来往、往那里去,都要写
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Cut and shuffle 排序

  1. Abstracting and working up are tedious processes involving a lot of transferring and transfer checking. More movements of information from one to another will increase the chances of making errors
  2. A method has been devised whereby:
    • each dimension sheet only contains one item
    • when the taking-off is finished, dimension sheets of the same BQ item are collated and stapled together
    • squaring is done to obtain the grand total which is written on the front dimension sheet
    • short descriptions are expanded to full descriptions on the front dimension sheets
    • the dimension sheets are then shuffled according to the intended BQ sequence
    • headings are added as appropriate
    • BQ is directly typed from the dimension sheets which have headings, descriptions, unit and total quantities
  3. The number of processes is greatly reduced
  4. A drawback of this system is that when the dimension sheets are shuffled, the original sequence and logic of measurement are lost. Therefore, when the system was originally invented, the dimension sheets came together in 4 on one sheet of paper and were backed with a self impressed carbon copy. After taking-off in a logical sequence, the front sheet was taken out and cut into 4 pieces which were shuffled with other sheets. The carbon copy was kept in the original sequence to facilitate future reference
  5. 汇总卡可按清单分项次序自由排序
  6. 排序后要运算每卡总数,写在上部
  7. 总数由他人复核
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Taking-off schedules 计算表

  1. Dimension sheets require descriptions against group of dimensions. To reduce writing descriptions, dimensions of all quantities of the same item should be measured in one go and this requires greater experience. For measurement of group of items which have a lot of inter-related dimensions, use of dimension sheets would be cumbersome. A schedule would be preferred
  2. The following taking-off schedule puts all items sharing the same prime data together. This enables easier understanding of their inter-relations:
    下列的计算表,把共享原始尺寸的项目并列一起计算,较容易看到互相的关系:
  3. "/" = Times 乘
  4. () = Deduct 扣减
  5. Deductions are written in red or marked with a minus sign or with brackets if photocopying is anticipated
  6. The number of columns for each set of dimensions is flexible. For items measured Cube, four columns are allocated
  7. 栏数可加减,立方项用4栏
  8. Since the width of a sheet of paper is limited, a column needs to be shared by more than one item, e.g. two types of floor finishes, and colouring of the boxes is used to distinguish dimensions for different items
  9. 因纸宽有限,可用颜色在同一组栏下表示不同的项目,加总时按颜色分开加
  10. The totals on the taking-off schedules are transferred to the dimension sheets
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Direct billing

  1. With substantial portion of taking-off information given in taking-off schedule in tabulated and inter-related manner, the portion of taking-off directly on dimension sheets is greatly reduced
  2. The need for carbon copy to keep the original taking-off sequence and logic is therefore reduced
  3. "Cut" is also no longer required, one independent sheet is used for one BQ item, leaving the "shuffle" behind. Taking-off directly onto these dimension sheets which can be shuffled immediately for billing is called "direct billing"
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Query list 编标问卷

Query list 编标问卷 KCTang Wed, 24/12/2014 - 00:37

Query list
编标问卷

  1. During the course of BQ production, there is bound to be uncertainty of information either in respect of the project particulars or in respect of the Drawings and Specification
    编制工程量清单时,常会碰到工程细节、图纸或工料规范有不清楚的地方
  2. Clarify with the Architects or Engineers using telephone conversation or email
    先以电话或电邮询问设计单位
  3. Write down the answers obtained on a query list
    用编标问卷书面记录答案
  4. Make reasonable and confident assumptions on the query list prior to receipt of answers
    未有答案前,可把有信心的合理假设写在问卷上
  5. Refer to the following sample form: 
    参考以下格式例:
  6. To avoid grammatical mistakes and to reduce the subsequent time to make corrections, write the queries in note form which is still understandable, particularly when assumptions or answers have been made such that a query and assumption or answer can be read together to make sensible and complete meaning
  7. Dispatch the query list from time to time to the Architects or Engineers for answering outstanding queries or confirming answered queries and for record
    定期发出问卷以便取得未有的答案或确定已有的答案及做为记录
  8. Chase for the return of the query list with answers within a reasonable time
    跟进在合理时间之内有回复
  9. Reflect the final answers in the Bills of Quantities
    把最后的答案在工程量清单反映

Editing 编辑

Editing 编辑 KCTang Fri, 26/12/2014 - 02:23
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Editing by senior 编辑

  1. After a draft BQ has been prepared by the taking-off team, the draft BQ should be edited by the senior and experienced Surveyor who may be the team leader or a more senior Surveyor
    排序计算好的汇总卡交由组长或项目主管编辑修改
  2. The editing is to ensure sufficiency of descriptions, consistency in style and reasonableness in classification, logic in sequence, and appropriateness in itemization and units
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Ensuring appropriate P.C. rates

  • The team leader or the editor should verify that the P.C. rates used are appropriate
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Corrections

  • After editing, corrections of the draft BQ should be made, and the corrected draft re-submitted for editing until satisfaction
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Typing 打印

  1. If the draft BQ is in written draft form, the draft BQ should be sent to the typists for typing
    编辑齐理好的汇总卡交往打印
  2. The type setting must follow a specified format
    打印应按一定的格式排版
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Reading over 校对

  1. Typed BQ or corrected BQ should be proof-read against the written draft or previously marked typed draft
    打字完毕要校对
  2. The old drafts should be lined through to indicate that they have been corrected and proof-read
    汇总卡在校对时每卡垂直画线以资确认已打印
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Finalising 定稿

Finalising 定稿 KCTang Wed, 24/12/2014 - 14:07
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Adjustments

  1. Adjustments should also be made to complete measurement of missing items found when clearing Drawings, Specification and Preambles
  2. Corrections should be made to rectify errors found in bulk-checking
  3. Any changes to the draft BQ should be made using different coloured pencils so that the changes can be apparent
  4. If changes are made directly on computer, either the results of the changes should be marked on the typed draft BQ used for bulk-checking or identifications should be made on the re-printed draft BQ
  5. Any changes to the draft BQ should be seen by the bulk-checkers
  6. If the bulk-checkers are satisfied with the accuracy of the BQ descriptions, units and quantities, they should initial against the quantities to signify acceptance
  7. When all items have been initialled by the bulk-checkers, the bulk-checking process is finished
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Final editing

  1. After making corrections and having them bulk-checked as well, the marked typed draft or re-printed draft with changes highlighted should be submitted to the editor again for final editing
  2. If further changes are required, the preceding changes should be repeated
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Final typing corrections

  • Finally edited and corrected written drafts can be submitted to typing corrections and reading over
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Reading quantities

  1. For manual measurement requiring transfer of quantities from bundles of dimension sheets to the written draft BQ, the quantities as typed on the final typed BQ should be compared with the quantities on the dimension sheets to ensure that all measured quantities are actually reflected in the final typed BQ. There may be chances that additional measurements have been made after the original written draft BQ, but they are forgotten to be reflected in the final draft and they have escaped the attention of bulk-checkers
  2. To avoid fatigue, usually two persons are involved in reading quantities, with one reading out the quantities on one document and the other verifying the quantities on the other document
  3. The units should also be read out as well to ensure that the correct units are typed
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Contents sheet and thickness of documents

  1. Systematic page numbering should be adopted. Page numbers of various sections of the Tender Documents should be prefixed for easy identification purposes, for example, "PL" for Specification Preliminaries and "TS" for Technical Specification
  2. The contents page should be compiled. Too thick a document may require to be split into two or more volumes and the covers should have volume number
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Photocopying 复印

  • After final correction, the typed BQ can be submitted to photocopying
    最后修改完成唱读无误后,可复印工程量清单

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Page checking 检查页数

  1. Checking should be done after photocopying to ensure no errors before binding:
    ​复印后要检查复印有没有问题才可以钉装:
    • Duplicate, missing, indistinct or defaced pages
    • 多、漏、不清、弄坏
  2. Random check can be done for highest quality service, otherwise full check should be done
    高质数的复印可抽样检查,否则应全检
  3. Out-sourced printing companies may not check every pages
  4. In any case, the team leader should carry out random check on at least one sample
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Binding 钉装

  • After page checking, the Tender Documents can be bound and dispatched to the Architects who would issue invitation letters to Tenderers to collect the Tender Documents for tendering
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Pre-tender Estimate

Pre-tender Estimate KCTang Wed, 24/12/2014 - 14:09
  1. As soon as the final BQ is ready and even before its dispatch to Tenderers, it would be a good practice and it may be a condition of service as well that the final BQ is priced to arrive at the expected tender price. The in-house priced BQ is called "Pre-tender Estimate" which is useful for:

    • early identification of any major deviation from the previous Preliminary Cost Estimate
    • comparison with prices returned by Tenderers
  2. If major deviation between the Pre-tender Estimate and the previous Preliminary Cost Estimate is found, the reason should be identified. Care should be exercised to see whether it is due to errors in the BQ or errors in the previous Preliminary Cost Estimate, or due to design changes introduced after the previous Preliminary Cost Estimate. Errors in the BQ should be immediately corrected. Early notice to the Client should be made for major and true deviations between the Preliminary Cost Estimate and the Pre-tender Estimate

Tender Addendum 修改通知

Tender Addendum 修改通知 KCTang Wed, 24/12/2014 - 14:11
  1. It is very usual that tender addenda are required after dispatch of Tender Documents for tendering because of the need:

    • to rectify errors found
    • to complete outstanding measurement because of previous lack of information
    • to update for lately revised Drawings or Specification
  2. All the processes for producing the original BQ should be followed for making tender addenda
  3. Amended or additional pages should have identifications such as:
    • Using an asterisk "*" against the right hand side of the page number
    • Using two or more asterisks or alternative symbols to signify the second or subsequent addenda
    • Using the words "Tender Addendum No. X" at the top or bottom of the pages
    • Using symbol against the left or right hand side or using other forms of highlighting to indicate amended or added BQ items
  4. Some people use page number designated something like 3.2/1+1 or 3.2/1A to denote an additional page

Tender Drawings 招标图纸

Tender Drawings 招标图纸 KCTang Wed, 24/12/2014 - 14:30
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Types of drawings according to their contents 按內容分的图纸类型

  1. Site location plan
    工地位置图
  2. Site survey plans
    现场勘测图
  3. Architectural plans
    建筑平面图
  4. Architectural elevations and sections
    建筑立面剖面图
  5. Architectural detailed drawings
    建筑大样图
  6. Structural plans
    结构平面图
  7. Structural detailed drawings
    结构大样图
  8. M&E plans
    机电平面图
  9. M&E schematic drawings
    机电系统图
  10. M&E detailed drawings
    机电大样图
  11. etc.
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Management of Tender Drawings 招标图纸的管理

  1. Characteristics of issuing drawings:
    出图特性:
    • Drawings are usually not issued in one batch
      未必一次出齐
    • Revised Drawings are usually issued during the course of taking-off
      可能出了又改
    • Revised Drawings are usually not given a revision number during the pre-contract stage
      修订编号不变
    • Therefore, a system should be implemented for identification of Drawings
      ​所以需要一个分辨图纸的制度
  2. Upon receipt of drawings: 
    收到图纸:
    • Check whether they are complete according to the covering letter
      应检查是否按函件收齐
    • Chase for omitted drawings
      追补缺漏
    • Stamp drawings received with a date-received chop
      必须盖日期章以资识别
    • Register the drawings to facilitate following-up
      并予以登记,方便追踪
    • Dispatch to the relevant team members after registration
      登记后发给有关的组员
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Sufficiency of Drawings 图纸的齐全性

  • Upon receipt, Drawings should be checked to see whether they are sufficient for the purposes. If there are insufficient Drawings or details, the Architects and Engineers shall be liaised with to pursue the outstanding Drawings
    组员收到图纸,检查内容是否基本齐全,有何变化,追补缺漏
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Drawing Register 图纸登记录

  1. A Drawing Register should be set up to record the Drawings received
    应用图纸登记录来登记收到的图纸
  2. The format of the Drawing Register can be as follows: 
    图纸登记录的格式可以如下:
  3. During the course of taking-off, Surveyors should check that they are using the latest versions of Drawings
    编标时,应常常检查是否使用最新的图纸
  4. The Drawing Register is useful for tracking revised drawings for use. If drawings are provided late, measures should be taken to resolve the issue
    图纸登记录有理于追踪使用新修订图纸。若修订图纸过迟,要提出处理办法解决问题
  5. The Drawing Register may be adapted as the Schedule of Drawings to be included in the Tender Documents
    图纸登记录将来可套用为招标文件中的图纸目录
  6. The Drawing Register may also be used for the management of drawings in the construction stage
    图纸登记录亦可用于施工阶段的图纸管理
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Using dimensions shown on Drawings 使用图示尺寸

  1. Dimensions shown on Drawings are preferred to those measured by scaling
    应使用图示尺寸计量,而不是用比例尺
  2. With Drawings drawn by hand without using CAD, it may be possible that the draftsman makes the last minute change to the dimensions without changing the drawn sizes
    不用CAD的手工绘图,绘图员可能在最后一刻随便改了标示尺寸,而不改图像
  3. Before using dimensions shown, some check should be done to verify the correctness of the dimensions shown: 
    应复核图示尺寸是否有矛盾,例如:
    • Overall dimensions should be checked to see that the running dimensions add up to the overall dimensions
      总尺寸与分尺寸不符
    • The same objects have different dimensions on different drawings
      同一物体在不同图纸被标示不同尺寸
  4. Scale rule should be used to check the overall or critical dimensions
    应用比例尺来核对图示尺寸
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Using correct scale rule 比例尺的使用

  1. Scale rule may be used when: 
    可用比例尺的时候:
    • Counter-checking the dimensions
      核对图示尺寸
    • Dimensions are insufficient
      尺寸标示不足
    • The shape is complex without adequate dimensions
      图形复杂,没有图示尺寸
    • The unit rate for a work item is low with minor cost implication in case of some tolerance in measurement
      有关项目的单价很低,计量误差影响不大
    • Bulking checking
      框算复核
  2. When using scale rule: 
    使用比例尺时:
    • The correct scale rule same as the true scale of the Drawings should be used. For example, use 1:100 scale rule for 1:100 scale Drawings, and do not use 1:50 scale rule
      用相等于图纸标示比例的比例尺直取尺寸, 例如用1:100的尺量1:100的图,不要用1:50的尺
    • Do not convert from other scale rules
      不要用其他的比例尺换算
  3. The overall or critical dimensions on Drawings should be checked to ensure that there is no enlargement, reduction or distortion in either direction to the scale stated
    要与图示的总尺寸或关键尺寸复核,看看有没有与标示尺寸不符的放大、缩少、扭曲(传真收到的图纸特别要留意)
  4. In special circumstances where the matching scale rule is not available, conversion from the dimensions measured to the actual dimensions represented must be done; 
    真的因没有适当的比例尺或因图纸变形而需换算的,要把量出来的换算到真的尺寸;
    • Care should be exercised to double check the conversion factors used
      要小心复核换算率才使用
    • For example, when using 1:100 scale rule to measure 1:200 Drawings, all readings on the scale rule should be multiplied by 2 to obtain the actual measurement
      1:100比例尺量1:200 图纸时,读数要x2
    • It should also be noted seriously that the multiplying factor to obtain the area is 2 x 2 = 4
      计面积时,若按1:100读数先计面积才转换,要小心换算率乃2 x 2 = 4
    • The conversion factor for scaled area measurement is the square of the conversion factor for scaled lineal measurement
      平面换算率是直尺换算率的2次方
    • The conversion factor for scaled volume measurement is the cube of the conversion factor for scaled lineal measurement
      立方换算率是直尺换算率的3次方
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Using accurately calibrated measurement instruments 使用调较准的计算仪器

  1. Other measurement instruments may also be used: 
    除比例尺外,计算仪器还有:
    • Curvimeter: a mechanical or digital instrument with a wheel for measuring lengths (some stationery stores may still have this on sale)
      曲线计:用滚轮在图上走动便可量出延长尺寸
    • Planimeter: an instrument with a number of arms for measuring areas (it may be difficult to find it now on sale)
      求积仪:用机械支架承托的针,在图上走动一圈便可量出面积
    • Digitiser: an electronic tablet with a pen for measuring lengths and areas (this is available from some computer hardware stores); a PC computer equipped with digitising software is required for use
      数位板:绘图用的电子板,附有笔,驳上电算机及软件,在图上走动便可量出延长尺寸或面积
    • CAD software: for measuring the numbers, girths and areas directly from the CAD drawings
      绘图软件:直接从图纸电子版读出个数、周长及面积
  2. Every time before using these electronic or mechanical instruments: 
    机械或电子仪器每次使用前:
    • The scale should be set to the same scale as the drawing
      要调较至图纸的比例
    • The accuracy should be verified
      要复核精确度
    • When conversion is unavoidable, calculate the conversion factor carefully
      读数需要换算时,小心测算换算率
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Colouring Drawings 图纸涂颜色

  1. To signify that things on Drawings have been measured:
    为表示图示物体已计算了:
    • Parts of the Drawings should be coloured as and when those parts have been measured;for example, when a beam on a structural framing plan has been measured, the beam is coloured; when the finishes inside a room have been measured, the area inside the room is coloured
      计算了图示物体后随即在物体的图像上着色;例如:结构平面图上的樑量了,樑就着色;房间内的饰面量了,房间内的面积就着色
    • Either the area or the perimeter may be coloured
      可填满空间或着边框
    • The same colour should be consistently used for the same kind of materials or construction; for example, red colour is used to colour brick walls and green colour is used to colour concrete walls
      不同物体有系统地用不同颜色;例如:砖墙用红色,混凝土墙用绿色
    • Shades or crosses can be used in case the number of colours available is not sufficient
      颜色不够用可用斜纹格线等帮助
  2. Colouring helps: 
    着了色的图纸:
    • Tracing and distinguishing those measured from those not yet measured
      帮助追踪及分别已计算及未计算的
    • Checking visually that the extent measured is correct
      帮助检视计算的范围有没有错
    • Creating a little bit of fun when measuring
      对苦闷的计量工作增加一点情趣
    • If this practice is maintained, then if a certain part of a Drawing has not been coloured, it would readily mean that it has not yet been measured
      若按此习惯,未着色的地方即未量度
  3. Therefore, it is important that the Drawings should not be coloured before measurement, since one may easily forget that he has not yet measured the coloured parts. 
    因此,应避免计量前便着了色,因为这样很容易忘记了实在没量已着色的部份
  4. If a Drawing is full of texts, lines and figures and is too condensed that some advance colouring is desirable to help reading the Drawings, then partial colouring or colouring the boundary only should be adopted before measurement. After measurement, the full colouring is put in to signify completion of measurement
    若图纸满是文字、线条及图样并且太密集,的确需要预先着色方便看图,则可用局部着色或边框着色的方法预先着色,在量完以后才全部着色
  5. When a thing shown on the Drawings is to be measured several times for different things, e.g. measuring concrete and formwork first and then reinforcement later, then use partial colouring to indicate different phases of measurement
    若图示物体需按不同的东西量几次,例如,先量混凝土及模板再量钢筋,可用局部着色的方法表示量到不同阶段
  6. Example 图例:
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Lining through notes on Drawings 图纸说明上画线

  1. Notes and annotations on Drawings should be taken into consideration in the measurement or writing BQ descriptions
    图纸上的文字说明及标签应反映在工程量的计算或分项说明内
  2. As soon as this is done, a note or an annotation should be lined through
    有关资料已获反映,随即在上面画线以表示
  3. Example of lining through:
    画线的图例:
  4. Lining through should be done by lining along the notes and annotations using coloured pencils in bright colours, e.g. yellow or orange. Dark colours which may cover up the notes or annotations should not be used
    应随句子长度画线,使用鲜明的木颜色笔,例如黄色或橙色。不要用遮盖了文字的深颜色
  5. Fountain pens, ball pens or felt pens, which use permanent ink, should not be used since they appear to be crossing out the Annotations and figures in a permanent manner
    不应使用钢笔、圓珠筆、氈筆等使用永久墨水的笔,因为它们给人永久删掉有关资料的感觉
  6. Coloured pencils should be used because any wrong marking can be erased, but marking of useful information should not use easily erasible coloured pencils
    应使用木颜色笔,因涂错了仍可擦掉,但不要用太容易擦掉的木颜色笔在图上标示有用的资料
  7. Fountain pens, ball pens or felt pens should be reserved for making permanent changes on Drawings. Red ink should be used
    钢笔、圓珠筆、氈筆等应保留给表示永久修改之用。应使用红色墨水
  8. Upon completion of taking-off, the presence of any note or annotation on Drawings but not yet lined through may mean that they have not yet been taken into account
    量度完成时,仍有文字说明或标签未画线的,表示还未反映在工程量的计算或分项说明内
  9. Some objects on Drawings may have repeating annotations on the same Drawings, e.g. a reinforcement bar may be annotated more than once. When the object has been measured, the first annotation is to be lined through. When the next repeating annotation is encountered, instead of lining through, a loop may be drawn over it to signify that the object has already been measured once and this annotation is not measured again. Such practice will help ensure that the same object will not be measured more than twice
    有些图象可能重复出现标签,例如,钢筋可能多次标签。就同一个图象重复出现的标签,第一个可画线,其他则打圈,以避免及表示没有重复计算
  10. Example of looping:
    打圈的图例:
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Superseded Drawings 取代了的图纸

  • Drawings superseded should be marked with the words "SUPERSEDED" at conspicuous location on the Drawings, usually against the drawing number
    取代了的图纸: 在明显的地方盖章或手写"取代了"或在图号上打交叉
  • Superseded Drawings which have not been used should be thrown away
    未用过的图纸,没有保留价值的可丢掉
  • For superseded Drawings which have been used and have information marked on, the information should be transferred to the updated Drawings before throwing away the superseded Drawings
    已用过的图纸,与新版核对时,把着色的资料转移到新图上,才丢掉
  • If there are a lot of information marked on the superseded Drawings, the superseded Drawings should be kept and stapled at the back of the updated Drawings
    若旧图已着色的资料太多,而新图的修改只是很少,则把新旧图钉在一起使用
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BQ Drawings "计量图纸"或"工程量清单图纸"

  1. The Drawings actually used for taking-off are called "Taking-off Drawings" or "BQ Drawings"
    即真正是用了来计量的图纸
  2. The BQ Drawings should become the Tender Drawings
    ​应采纳为"招标图纸"
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Tender Drawings and Contract Drawings 招标图纸及合同图纸

  1. Upon completion of taking-off, the Drawing Register should be checked against the Drawings actually used for taking-off and the Register can be transformed to a Schedule of Tender Drawings showing a consolidated list of the drawing numbers, titles and the last dates of receipt. Such Schedule of Tender Drawings will be included in the Tender Documents for the reference of the Tenderers and the Drawings so listed will become the Contract Drawings
    招标时,"工程量清单图纸"应成为"招标图纸"
    可真正发给投标者
    或不发出,但可在指定地点供投标者检阅
    招标文件应有图纸目录列明,作为投标及订合同的依据
    招标图纸在投标后订合同时应成为合同图纸
  2. Theoretically, the contents of Tender Drawings actually issued to Tenderers for tendering or made available for Tenderers to inspect should be the same as those used for taking-off and listed in the Schedule of Tender Drawings, and the contents of Contract Drawings actually bound should be the same as the Tender Drawings. However, because the Architects and Engineers may still be making changes during the course of taking-off through the construction stage, it is very usual that the contents of Contract Drawings are more up-to-date than Tender Drawings which are more up-to-date than those used for taking-off
    招标图纸理应等如工程量清单图纸
    合同图纸理应等如招标图纸
    但有时在发图给计量到发图给招标到订合同这段时间,设计方往往继续改图,但又没有留底。使到合同图不等如招标图不等如工程量清单图纸
  3. Theoretically, the Architects and Engineers should make sufficient copies of the Drawings issued to the Quantity Surveyors as reserve for use as Tender Drawings and sufficient copies of Tender Drawings for use as Contract Drawings. However, this is often forgotten. In practice, the BQ Drawings instead of the Tender Drawings or Contract Drawings are used for measuring omissions for variations
    结算时,应以工程量清单图纸为准
  4. With the popular use of CAD software, the discrepancy could be eliminated by making backup copies of the CAD files. Of course, co-ordination by the Quantity Surveyors with the Architects and Engineers and co-operation from them are required
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Tendering 招投標

Tendering 招投標 KCTang Wed, 24/12/2014 - 15:53

Tender Invitation 招标

Tender Invitation 招标 KCTang Wed, 24/12/2014 - 16:04
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Selection of Tenderers 投标者的选择

  1. Open tendering:
    公开招标
    • Invitation through newspaper advertising
    • Invitation through gazette notice with restrictions to approved list of tenderers
    • Invitation through web portal
    • Expression of interest and pre-qualification of tenderers required if tenderers are not invited from an approved list
  2. Selective tendering:
    选择性邀请:
    • From an approved list
    • Suggested by the Project Team
    • Pre-qualification of tenderers required if tenderers are not familiar to the Project Team or the nature of the Works is special to the criteria for the approved list
    • Expression of interest required to see whether the tenderers are willing and able to tender
    • Invitation by letter
  3. Negotiation with a single tenderer:
    单一议标:
    • Based on past project relationship and prices
  4. Avoidance of collusion
  5. Balance between transparency and confidentiality
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Expression of Interest and Pre-qualification of Tenderers 投标意向及资格预审

  1. Purposes:
    • Permit only those qualified to tender
    • Avoid incompetent tenderers submitting lowest tenders
  2. Possible contents of a letter requesting for expression of interest:
    • Information to prospective tenderers:
      • Scope of the Project
      • Scope of the Works to be tendered for
      • Particulars of the Client and Employer for the project
      • Particulars of Architect, Engineers, AP, RSE, Quantity Surveyor
      • Type of contract:
        • Lump sum or remeasurement
        • With or without Bills of Quantities, or with standard schedule of rates
        • With or without fluctuation clause
      • Payment terms
      • Expected date for issuance of tender documents
      • Tendering period
      • Construction programme
    • General company information required to be submitted:
      • Descriptions on past and current experience in similar works, together with a job reference list
      • Current and anticipated work load for the coming 12 months
      • Experience in working on restricted areas similar to the proposed site
      • Business registration certificate
      • Certificate of incorporation, if a company
      • Contractor’s registration certificates
      • Audited accounts for the last <> years (strict confidence to be observed by the Client and the Consultants)
      • Statement of all convictions or no convictions under the Immigration Ordinance (Cap. 115) for last <> years
      • Statement of all convictions or no convictions under the Factories and Industrial Undertakings Ordinance (Cap. 59) for last <> years
      • Statement of all convictions or no convictions under the Employment Ordinance (Cap. 57) for last <> years
      • Statement of involvement in arbitration or litigation in the last <> years or foreseeable in the next <> months
  3. Project specific information required to be submitted:
    • CV of key professional or technical staff which are capable of undertaking the Works and may be assigned to the Works
    • Details of the fabrication yards which may be used for the Works
    • Financial capability to adopt the payment terms mentioned above
    • Estimation of the delivery and installation periods required for the Works
    • If an alternative tender based on Contractor’s design is considered:
      • Descriptions of past experience and capability in undertaking the design work
      • Names of the prospective designers
      • Preferred tendering period
    • Time and mode of submission
    • Client is not bound to invite any contractors who have expressed interest to tender
    • Contact person in case of queries
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Selection Criteria 预审准则

  1. Technical and financial capability of the company
    公司的实力及财政状况
  2. Technical capability of the proposed project staff
    拟用项目人员的实力
  3. Past experience
    工程履历
  4. Track records
    往绩
  5. Safety records
    安全纪录
  6. Non-compliance records
    违规纪录
  7. Current workload
    现时工作量
  8. Claims history (not apparent from the pre-qualification submissions)
    索赔纪录
  9. Scoring by:
    • Qualitative judgment
    • Marking scheme
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Invitation Letter 邀请函

  1. Confidential list of tenderers
  2. Invitation letter to be marked "CONFIDENTIAL"
  3. Description of the Works
  4. Documents and drawings issued
  5. Place and time for collection of documents and drawings
  6. Arrangement for tender deposit and tender bond
  7. Arrangement for tender briefing and site walk
  8. Time and mode of submission
  9. Tender submissions to be in sealed envelope marked "CONFIDENTIAL"
  10. Specified tender label or envelope for submission
  11. Contact person in case of queries
  12. Terms and conditions intended to form part of the Contract should be given in the Tender Documents rather than in the Invitation Letter
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Tender Documents issued

  1. Tender Booklet
  2. One set of drawings as listed or referred to in the Schedule of Drawings
  3. One duplicate copy of the Tender Booklet for retention by the Tenderer (really essential?)
  4. One duplicate copy of the Form of Tender (really essential?)
  5. Electronic documents (precedence against hardcopies)
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Drawings

  1. Tender Drawings comprising:
    • Drawings actually issued to tenderers
    • Drawings available for inspection
    • Standard Drawings referred to in the Specification or other Tender Drawings
  2. Theoretically, BQ (Taking-off) Drawings = Tender Drawings = Contract Drawings
  3. How to manage these drawings to avoid discrepancies
  4. Generally, preliminary design drawings submitted by the tenderers to be for reference only
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Collecting Tender Documents 领取招标文件

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Tender Deposit 投标工本押金

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Tender Bond 投标担保书

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Inspection of Tender Documents 检查招标文件

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Tender Briefing and Site Walk 交底会及现场踏察

  1. Joint meeting or separate meeting
  2. Confidentiality, convenience and trust
  3. Introduction to tenderers
  4. Tenderers to raise queries and problems
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Answering Queries 提问答疑处理

  1. Re-phrasing into common answers to all tenderers
  2. Issued as Tender Clarification Letters or Tender Addenda
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Issuing Tender Addenda 修改通知

  1. Revisions may be required after issuing the Tender Documents because:
    出标后可能需要修改:
    • The Tender Drawings or Specification has been changed
      图纸或规范改动了
    • The Bills of Quantities have not really been completed yet
      清单尚未计完
    • Errors have been discovered
      发现有错
  2. Latest time for issuing Tender Addenda
  3. Revised or additional pages to be marked and labelled as follows: 
    修改或增加页应予以标示:
    • Marking with "*" against the page number to indicate first revision, with "**" to indicate second revision
      页码旁加"*"表示第一次,"**"表示第二次
    • Labelling at the page header or footer with "Tender Addendum No. 1"
      ​在页首或页尾加 "投标修改通知1" 的字样
  4. Highlighting of changes
  5. Different dates and filenames on different pages to be avoided for documents
  6. Date stamping required for Tender Drawings which do not usually have a corresponding revision version number
  7. Covering letter:
    • Letter to be marked "CONFIDENTIAL"
    • Amended or additional documents and drawings issued
    • Description of the changes and instructions to make the changes (either in the letter or in an appendix)
      • Pages or sheets to be replaced, added or deleted
      • Clarification statements
    • Place and time for collection of documents and drawings
    • Any change to the tender return deadline
    • Other terms and conditions remain unchanged
    • Contact person in case of queries
    • Acknowledgement of receipt by couriers
    • Confirmation of incorporation of tender addenda by tenderers
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Tender Pricing 投标计价

Tender Pricing 投标计价 KCTang Wed, 24/12/2014 - 16:17
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工程承包造价的组成

  1. 按资源划分:
    • 人工费
    • + 材料费
    • + 机械使用费
    • = 直接费
    • + 管理费
    • = 成本
    • + 利润
    • = 税前造价
    • + 按造价计取的税金
    • = 税后造价(综合单价)
  2. 按计价文件划分:
    • 开办经营费(措施费)
    • + 工程量x综合单价
    • + 指定项目(分包及供货)暂定价
    • + 分包管理配合费
    • + 暂定款
    • + 施工不可预见费
    • + 点工单价表
    • = 承包总价
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 管理费分为

  1. 企业(公司)管理费:
    • 香港一般是按其他的工程成本计取费率,并摊在所有单价内
  2. 项目管理费:
    • 可以专项的计在开办经营费内,或按其他工程的成本计取费率摊在单价内
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利润

  • 香港一般是按其他的工程成本计取费率,并摊在所有单价内
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税金

  • 香港工程未有营业税、销售税等增值税种,只有利得税
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分判制度

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询价

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暂定供应单价

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管理费及利润的取费方法

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开办经营要求 / 措施费的估算

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暂定款及指定项目暂定价

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Principles of Contracting Cost Control 承包成本的控制原则

Principles of Contracting Cost Control 承包成本的控制原则 KCTang Wed, 24/12/2014 - 16:20

Table of Contents

  1. 不外乎
  2. 开源
  3. 节流
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不外乎

  1. 开源
  2. 节流(转移风险)
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开源

  1. 多拿工程亦算是公司开源的主要内容
  2. 但拿到工程后,开源的方法则有限而艰巨
  3. 不外乎靠变更及索赔来增加收入
  4. 亦可以征费的方式对分包方收取各种费用,例如:
    • 清理垃圾费
    • 垂直运输使用费
    • 分包管理费
  5. 对分包方征费未必完全按照合同的规定,有些近乎买怕费
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节流

  1. 重点应是节流
  2. 更重要的是不要亏本拿工程
  3. 亏本拿工程之后能翻身的主要靠幸运之神眷顾
  4. 节流的措施可从投标阶段做起,直至保修完成
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Cost Saving Measures during Tendering 投标阶段的节流的措施

Cost Saving Measures during Tendering 投标阶段的节流的措施 KCTang Wed, 24/12/2014 - 16:30
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主要措施

  1. 减少投标价过低不足成本的可能
  2. 了解工程及合同的要求
  3. 分析影响价格的因素及风险
  4. 转移风险是节流的一个重大措施
  5. 分包是转移风险的体现
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要充分了解合同及工程的要求

  1. 了解招标文件
  2. 检查招标文件有没有遗留
  3. 检查招标文件的规定有没有矛盾不清不实际的地方
  4. 叁加交底会
  5. 书面提出疑问
  6. 了解相关的法例规定
  7. 现场踏察
  8. 寻找现场及邻近的地质、市政及建筑物的资料
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分析影响价格的因素

  1. 设计
  2. 选址
  3. 施工
  4. 合同要求
  5. 经济环境
  6. 发包方及其顾问
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设计因素

  1. 功能
  2. 用料
  3. 档次
  4. 设计深化及施工图制配图的责任
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选址因素

  1. 交通
  2. 进出囗
  3. 限制(环保、噪音、工时)
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施工因素

  1. 工程大小
  2. 机械化
  3. 标准程度
  4. 重复程度
  5. 预制程度
  6. 采购量
  7. 工艺
  8. 天气
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合同要求因素

  1. 土质的风险承担程度
  2. 地下障碍物的风险承担程度
  3. 市政接驳的风险承担程度
  4. 物价波动的风险承担程度
  5. 工期
  6. 分阶段交付工地及竣工
  7. 误期赔偿金额
  8. 工期延长的许可原因
  9. 索赔的许可原因
  10. 保险及履约担保
  11. 保修期
  12. 付款办法、支付期限
  13. 管理班子的大小及资历
  14. 安保要求
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经济环境因素

  1. 市场竞争程度
  2. 汇率
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发包方及其顾问因素

  1. 发包方的财政状况、实力、付款能力
  2. 发包方及顾问的主观要求程度
  3. 发包方及顾问的负责任程度
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自我评估

  1. 财政状况、垫支能力
  2. 实力
  3. 往绩
  4. 现时工作量
  5. 安全纪录
  6. 违规纪录
  7. 索赔纪录
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询价原因

  1. 市场价格波动
  2. 设计及用料变化多
  3. 不能套用以往的工程成本或造价
  4. 每次都要通过询价手段来估计自己的成本
  5. 然后定自己的造价
  6. 以往价格资讯作为控制性的叁考
  7. 分包是转移风险的体现
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询价手法

  1. 要决定那些是自己工、包清工、连工包料
  2. 要考虑分包单位的信守承诺的能力
  3. 要说明供料责任
  4. 提供材料给分包的要规定损耗率
  5. 把收到的招标文件分拆
  6. 再加上自己的条件
  7. 发给被询价单位
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自己的报价

  1. 收到分包的报价后,加以分析组合
  2. 择优作为自己成本的依据
  3. 加上适当的风险预留
  4. 及管理费、利润、税金后
  5. 作为自己的报价
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管理费及利润的取费方法

 

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开办经营/措施费的估算

 

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递交标书的准备

  1. 齐备所要求的文件
  2. 确定已考虑了招标文件的修改通知
  3. 复核所有数字
  4. 签齐所要求的地方
  5. 按要求密封标签
  6. 按时递交至指定的地点
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Submitting Tenders 回标

Submitting Tenders 回标 KCTang Wed, 24/12/2014 - 16:57
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Tender 回标文件的组成

  1. The bound Tender Booklet with: 
    填妥的招标文件:
    • The Form of Tender completed, signed, witnessed and dated
    • Selected appendices to the Form of Tender completed, signed, witnessed and dated (some to be completed after contract award)
    • The Bills of Quantities priced, extended and totalled (the sum shown on the Form of Tender must agree with the total of the Summary)
    • The Summary of Tender priced and totalled (the sum shown on the Form of Tender must agree with the total of the Summary)
    • Schedule of Quantities and Rates showing the build-up of the respective items in the Summary of Tender
      • Schedule of Quantities and Rates all prepared by the tenderers
      • Pro-forma Schedule of Quantities and Rates without quantities provided to tenderers
      • Schedule of Quantities and Rates with quantities pre-inserted for the tenderers’ reference and verification (implication of discrepancies with Tender Drawings and Specification)
    • Technical and Delivery Schedule completed
  2. List of the names of the specialist contractors that the Tenderer intends to choose for sub-letting part of the Works
  3. Preliminary design drawings and specification for tenderers’ specialist design
  4. Material catalogues and sample boards
  5. Proposed method statement 施工组织设计
  6. Proposed programme of the Works 施工进度初步计划表
  7. Site layout plan showing the proposed locations of plant, scaffolding, catch fans, stores, site office and access routes
  8. Project organisation chart with the names and qualification of key management and site personnel for the Works 工地人员组织表
  9. Maintenance contract proposal (for M&E works)
  10. General company information (if not already fully submitted when expressing interests to tender)
  11. For Mainland China projects:
    • 企业法人营业执照
    • 建筑业企业资质证书
    • 当地施工资质证明文件
    • 已建或在建工程的履历
  12. Number of copies of submissions required
  13. Duplicate copy of the Form of Tender
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Rules for Submission 回标的形式

  1. Conditions of Tendering to be oberved
  2. Sealed envelope to be labelled in the manner and deposited at the time and place set out in the invitation to tender
  3. Tender Drawings to be returned (use of returned drawings for Contract binding)
  4. Unauthorised alteration or erasure to the text of the Tender Documents not accepted
  5. Alternative tenders rather than non-comforming tenders
  6. Unpriced items deemed included
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Evaluating Tenders 评标

Evaluating Tenders 评标 KCTang Wed, 24/12/2014 - 17:38
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Tender Analysis

  1. Check the completeness of tender submissions
  2. Request for immediate submission of outstanding information (except when the outstanding information leads to disqualification)
  3. Check the correctness in completing the Form of Tender
  4. Check the completeness of pages
  5. Check the inclusion of amended pages and exclusion of deleted pages
  6. Check no unauthorised alteration or erasure to the text of the Tender Documents
  7. Check arithmetic, evidenced by ticking or correction in red
  8. Consider when deciding whether to correct the rate or the extension in case of mismatch:
    • Rate derived by dividing quantities into extension reasonable as a round figure or as compared to similar rates?
    • Total of extension matching page total?
  9. Rates in Remeasurement Contract not to be changed and Tender Sum can be adjusted (some Conditions of Tendering specify as such)
  10. Check the reasonableness of quantities and sufficiency of items in the Schedule of Quantities and Rates prepared by tenderers
  11. Treat omission of prime cost and provisional sums as an error to be absorbed by the Tenderer or to be corrected and added back (depending on the provisions of the Conditions of Tendering)
  12. Compile multiple rate bills (for easy comparison of rates and to serve as future data bank)
  13. Check rates:
    • Consistencies of rates for similar items (with differences for different locations and times of construction)
    • Reasonable differences and pattern for dissimilar items
    • High and low rates:
      • Comparison amongst tenders and pre-tender estimate
      • Comparison with known supply costs
      • Picking out those unreasonably high or low or incorrect rates for adjustments
    • Reasonable on-costs above prime cost rates
    • Inappropriate pricing of preliminaries items which should not normally be priced
    • Unreasonable dayworks rates and mark-ups
  14. Check for front loading
  15. Carry out discounted cash flow analysis for projects of long duration based on tenderers’ programme
  16. Equate tenders with different completion times (normally using the rate of liquidated damages)
  17. Check qualifications
  18. Check whether overall time of preliminary programme matches the committed completion times
  19. Check obvious errors and omissions on the programme (though the detailed checking should be the duty of the Architect and Engineers)
  20. Check the materials and equipment proposal in so far as the make and type may affect the comments on the reasonableness of the prices (the technical suitability should be left to the Architect and Engineer)
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Issuing Tender Questionnaires 询标问卷

  1. Request for outstanding submissions
  2. Confirm correction of major arithmetic errors
  3. Request for agreeing more reasonable rates for variations, with details as to how they will be applied – omissions and additions or additions only? implication on provisional quantities?
  4. Request for rationalization of both the quantities and rates in Schedule of Quantities and Rates prepared by the tenderers
  5. Clarify uncertain terms
  6. Request for withdrawal of unacceptable qualifications
  7. Do not change Tender Sums if the tendering basis has not been changed, otherwise disqualify
  8. Mark confidential queries and replies
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Issuing Post Tender Addenda

  1. Issue if changes to the original tendering basis are required. Accept changes to the Tender Sums
  2. Consider and stipulate the mode of submission and opening of the revised Tender Sums, if changes expected
  3. Observe and respect individual tenderers’ competitive ideas
  4. Keep confidential
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Caution against Changes to Scanned Images

  • There are software which can recognise the text on a scanned image of a document. Tenderers may use this kind of software and convert Tender Questionnaires or Post Tender Addenda to editable text files and input their answers. The format of the document may be changed making it difficult to trace whether the original text has been changed. To avoid this practice, the following statement should be inserted in Tender Questionnaires or Post Tender Addenda:
    • "You may use an image copy of the questionnaire and superimpose your answers on it, but should not  change the text or format of the questionnaire.by converting the image into editable file or by other means."
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Typical Contents of Tender Report 评标分析报告主要内容

  1. Date tenders received
  2. Tenders received:
    回标价一览:
    • Tenderers’ names
    • Tender Sums
    • Ratios
    • Completion Times
    • Alternative Tenders
  3. Scope of tenders:
    投标范围、分包、另包情况:
    • Works tendered for
    • Provisional sums
    • Prime cost sums
    • Provisional quantities and dayworks schedule
    • Works by others
  4. Type of tenders
  5. Tender addenda
  6. Post tender addenda and revised tenders
  7. Tender submissions
  8. Time for completion
    工期要求
  9. Arithmetic errors
    算术复核结果
  10. Comparison of tenders in the form of appendices:
    分析附表:
    • By Trades and by Sections
      各清单总价比较表
    • List of major rates
      主要单价比较表
    • Multiple Rate Bills of Quantities (bound separately)
    • Technical particulars (delivery periods, origins, makes, types, models, etc. in so far as they are required for the appreciation of the reasonableness of the prices)
      支持分析意见的比较表
  11. Examination of tenders with comments on individual tenders:
    分析意见:
    • Tender Sum
    • Priority
    • Contract periods
      工期
    • Arithmetic error
    • Technical submissions
    • Qualifications
      投标单位的反建议
    • Alternative proposal
      投标单位的另选建议
    • General price levels
      价格
    • Items with unreasonably low rates
      单价过低的处理
    • Items with unreasonably high rates
      单价过高的处理
    • Items incorrectly priced
    • Unpriced items or items without specific prices quoted
    • Technical merits
      技术
    • Capabilities
      实力
    • Past performance
      往绩
    • Items requiring further clarification
      还需澄清的问题
    • Conclusion
  12. Reconciliation with Estimate
    与项目概算有关部份或标底的比较
  13. Conclusion and recommendation
    结论
  14. Total building or project cost based on the recommended tender
    项目概算按意向选定标价调整后的项目总费
  15. Tender validity period
    定标限期
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Tender Interviews 询标会议

  1. Better conducted after submission of the tender report
  2. Strategy in priority of interview
  3. Questions and answers
  4. Subsequent confirmation of questions by issuing Tender Queries
  5. After receipt of the replies, a final recommendation can be made as to the selection of the successful tenderer. A supplementary or a final tender report should be issued
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Tender Scoring 评分

  1. Example of technical scoring sheet 技術分评分表的例子:
  2. Example of calculating the combined tender score 計算综合评分的例子:
  3. Formulae used:
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Tender Evaluation Criteria of Housing Authority

  1. The Housing Authority may take into account the following when evaluating tenders (Notes to Tenderers, February 2013 Edition):
    • tenderer's qualification
    • compliance with tender restrictions
    • suspension from tendering
    • workload capping limits and restrictions
    • contract award restrictions
    • technical, commercial and financial capability
    • past performance
    • compliance with tender conditions, specifications and other requirements as set out in the Tender Documents
    • designs/methods/materials proposed in compliance with the terms of the Conditions of Tender
    • tender price and/or rates
    • effect of exceptionally high or low priced items
    • effect of incident of payments by discounting future payments to obtain the present values if the tendered prices are very close
    • bankruptcy
    • false declaration
    • lack of integrity
    • acts of dishonesty
    • the latest available information and reports relating to serious misconduct or criminal offences
    • wages in arrears
    • serious quality, safety or environmental incidents
    • HA's quarantine system under the tender evaluation mechanism for occurrence of serious incidents during tender assessment for capital works contracts
  2. Calculation of combined score by the Housing Authority for complex contracts evaluated using 2-envelope tendering arrangement with marking scheme (Special Conditions of Tender, February 2013 Edition):
    • Summation of:
      • 8% max. x Corporate score
      • 17% max. x PASS score
      • 10% x Technical Score of the tender (before normalization) / highest Technical Score among considered tenders
      • 65% x lowest tendered sum among considered tenders / tendered sum of the tender​
    • where "considered tenders" being those tenders with Technical Scores (before normalization) above the threshold Technical Score
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Awarding Contract 定标

Awarding Contract 定标 KCTang Wed, 24/12/2014 - 17:54
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Awarding the Contract

  1. Letter of Acceptance / Letter of Award
    中标通知书
  2. Letter of Intent (to nominate) followed by Letter of Acceptance by the Main Contractor
  3. Is letter of intent binding? If binding, how?
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Contents of the Letter

  1. Issuing on behalf of the Client
  2. Brief description of the Works
  3. The Contract Sum
  4. Build-up of the Contract Sum from the original Tender Sum, if different
  5. Discounts (lump sum, percentage, how to apply, how are prime cost rate items treated)
  6. The Contract Periods
  7. Pricing clarifications
  8. Technical clarifications
  9. Defining Contract Documents and order of precedence (Tender Documents, tender, tender correspondence)
  10. Any programme, method statement, site layout plan, and organization chart for reference only and to be formally proposed after contract award but subsequent deviations to be properly justified (information contained in these reference documents but intended to form part of the contract should be specifically stated)
  11. Counter-signing and returning the letter
  12. Binding contract upon counter-signing
  13. Immediate formal submissions:
    • Surety Bond
    • Employees’ Compensation Insurance Policy
    • Contractors’ All Risks and Third Party Liability Insurance Policy
    • Method statement of the Works
    • Programme of the Works
    • Site layout plan
    • Organisation chart with the names and qualification of key management and site personnel for the Works
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Preparing the Formal Contract Documents 制订合同文本

  1. Number of copies
    合同套数
  2. Contract Drawings to be bound and signed as well
  3. Original and certified true copies
  4. Checking for the updated registered addresses
  5. Amendments and Special Conditions to the Form of Contract:
    • Physically amending the Form
    • Including and initialling an overriding clause to incorporate the amendments and special conditions
  6. Calculating the Date for Completion from the overall duration (Date for Possession or Date for Commencement counted as day 1)
  7. Calculating limit of retention and amount of surety bond (based on the overall Contract Sum or exclusive of prime cost and provisional sums; rounding off).
  8. Execution as simple contract or contract under seal
  9. Significance of the date of signing
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Signing the Contract 签署合同

  • Example of the signing page of the Standard Form of Building Contract 2005/2006 Edition:
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Post Contract 合約後

Post Contract 合約後 KCTang Wed, 24/12/2014 - 17:56

Contractors' Cost Monitoring and Management 承包方造价的跟踪管理

Contractors' Cost Monitoring and Management 承包方造价的跟踪管理 KCTang Wed, 24/12/2014 - 17:59

主要目标

减少损耗

减少垃圾

减少返工

减少窝工

减少意外

减少工期虚耗

增加生产力

多加事前协调

确定材料及工艺的样板及验收标准

争取应得的

减少不应失的

建立完善的财务会计预算制度

要清楚知道个别工程的损益情况,所以要有清楚的实际支出及收入记录

建立完善的预决算制度

要对整个工程的最终支出及收入作出预测,及进行跟踪管理

对任何会使工程成本会增加的原因多加留意,并作出适当的记录

对任何会使工程收入增加的机会多加留意,并作出适当的记录,及适时提出争取要求

口讲无凭

施工过程中,承包方往往依照发包方的口头指令,而多做了增加成本的工作,但到头来因记录不全而丧失了获得补偿的机会

同样地承包方往往就可以使工程收入增加的事件,未有进行适当的记录而丧失了获得补偿的机会

因此,记录很重要

花钱请专人进行记录是值得的

注意期限

香港及国外的合同,往往就工期延长的申请及费用索偿,设定了期限

过期提交会丧失了获考虑的机会,因此不要掉以轻心

Construction Management 施工管理

Construction Management 施工管理 KCTang Wed, 24/12/2014 - 18:07
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接收工地

  1. 主要避免有现存但不明显的现场问题将来会产生坏影响
  2. 注意及记录现场建筑物的现状
  3. 注意及记录邻近建筑物的现状
  4. 记录测量基准点、红线的交收
  5. 进行地平测量
  6. 实施沉降监测
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确定分包及供应单位

  1. 明确分包内容
  2. 商定价格
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图纸管理及责任范围

  1. 目标为减少返工、加强追加工程款的依据
  2. 记录及注销
  3. 招标图
  4. 合同图
  5. 政府送审图
  6. 施工图
  7. 制配图
  8. 变更图(按指令发出)
  9. 窝工返工记录图
  10. 竣工图
  11. 永远要使用新版的图纸
  12. 用过的旧版图纸不能抛掉
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设计交底会

  1. 设计单位向施工单位交底的会
  2. 施工单位提交制配图的交底会
  3. 发包方及顾问团会议
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首次进度会议

  1. 以后会议的时间表
  2. 沟通:
    • 有关单位及代表的介绍
    • 沟通渠道
  3. 工地:
    • 接收工地的问题
    • 现场布置
    • 安保制度
    • 施工组织设计
  4. 工期:
    • 正式开工及规定竣工日
  5. 规划设计:
    • 政府批文进度
    • 制配图纸送审制度
    • 分包定标进度计画
  6. 施工:
    • 进度计画送审制度
    • 进度报告送审制度
  7. 付款制度
  8. 指令制度
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现场管理

  1. 工地:
    • 现场安保问题
    • 事故记录
    • 保险的落实
  2. 规划设计:
    • 设计交底会
    • 制配图纸送审进度
    • 政府批文进度
    • 分包定标进度
    • 变更指令报告
  3. 材料:
    • 监控订料进度
    • 记录进料领料情况
    • 控制损耗
    • 定期清理垃圾
    • 检查有没有不必要之浪费
    • 监控残料馀值
  4. 施工:
    • 协调工序先后
    • 协调临时设施的使用
    • 确定用新版的图纸
    • 确定用批核样板的材料及工艺
    • 质量问题
    • 质检记录及情况
    • 返工窝工记录
    • 恶劣天气的处理
  5. 进度:
    • 定期的进度会议
    • 每周报告
    • 每日报告
    • 进度照片
    • 人手情况及报告
    • 施工进度
    • 工期延误报告
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 随后的进度会议

  1. 工地:
    • 现场安保问题
    • 政府批文进度
  2. 规划设计:
    • 制配图纸送审进度
    • 分包定标进度
  3. 施工:
    • 天气报告
    • 人手报告
    • 施工进度
    • 订料进度
    • 进料记录及情况
    • 质量问题
    • 质检记录及情况
  4. 变更指令报告
  5. 工期延误报告
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指令(指示)管理

  1. 设立指令制度
  2. 发出人士及权限
  3. 变更指令
  4. 指令应书面
  5. 口头指令
  6. 承包方的书面确认记录(洽商记录)
  7. 要求对方签证
  8. 统一编码纪录制度以方便跟踪
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发包方的变更管理

  1. 设计预审
  2. 造价预估
  3. 承包方预报价
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承包方的变更管理

  1. 适时提交报价
  2. 跟踪审核进度
  3. 要求计入中期进度款
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定期的最终造价估算

  1. 汇总:
    • 主合同
    • 次合同
  2. 按结算分类:
    • 变更
    • 暂定物料单价
    • 暂定工程量
    • 指定分包暂定价
    • 索赔
  3. 栏目:
    • 项目编码
    • 说明
    • 现况
    • 预估造价
    • 承包方报价
    • 审核价
    • 付款额
  4. 更新周期
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及时处理

  1. 设计不足问题
  2. 设计或规范不合理的地方
  3. 变更追加款
  4. 工期的延长的申请及批核
  5. 工期延误索赔
  6. 记录很重要
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Insurances and Warranties 保险及担保

Insurances and Warranties 保险及担保 KCTang Wed, 24/12/2014 - 18:12
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Generally

  1. Insurer
  2. Agent
  3. Broker
  4. Insured
  5. Joint names
  6. Third parties
  7. Cross liability
  8. Waiver of subrogation
  9. Excess / deductible
  10. Surety / bondsman
  11. Guarantor
  12. Beneficiary
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Insurances

  1. Contractors' all risks and third party liability insurances:
    • Materials damage
    • Third party liability
  2. Insurances of construction plant, temporary buildings and vehicles
  3. Insurances prior to delivery to site
  4. Employees' compensation insuraces
  5. Exclusion of self-employed persons and sole proprietors
  6. Professional liability insurances
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Contractor Controlled Insurance Programme (CCIP)

  1. Insurance procured by the Contractor
  2. This is the usual approach
  3. Contractor taking up the administrative role of procuring the insurance
  4. Contractor may have an established department or experienced staff to do it
  5. Contractor may have long established insurance agents or brokers to do it
  6. Contractor in the best position to manage his own site safety / risks
  7. Contractor's good track records may lead to lower insurance premium
  8. The lower insurance premium would be reflected in the Contractor's tender price
  9. A desire to keep the premium low for the future would encourage keeping good track records for now
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Owner Controlled Insurance Programme (OCIP)

  1. Insurance procured by the Owner (Employer)
  2. Mainly for mega projects involving a number of contracts interfacing with one another
  3. Best to avoid overlaps and gaps, split of responsibilities and mutual claims within the same mega project
  4. Also suitable when the Employer will have a number of projects coming up over the years
  5. Employer in better control in areas such as premium, insurance security and insurance coverage
  6. The limit and scope of indemnity may be higher and bigger than those could be procured by smaller contracts
  7. Excesses may be too high for smaller contractors within the same mega project
  8. Employer taking up the administrative role of procuring the insurance
  9. Employer may not have an established department or experienced staff to do it
  10. Employer may need to employ insurance consultants to give advice and do it
  11. It may require a long lead time from deciding to employ the insurance consultant to procurement of insurance
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Bonds

  1. Surety bonds / Performance bonds:
    • Conditional
    • On-demand
    • Validity period
  2. Tender / bid bonds
  3. Advance payment bonds
  4. Retention bonds
  5. Payment guarantee bonds
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Guarantees

  1. Joint venture guarantees
  2. Parent company guarantees
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Warranties

  1. Form of Tender / Collateral Agreement by Nominated Sub-Contractor
  2. Quality warranties:
    • Waterproofing
    • Glass breakage
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Payments 付款

Payments 付款 KCTang Wed, 24/12/2014 - 18:38

Table of Contents

  1. Generally
    1. ​Scope
    2. Terms of payment
    3. Standard Form of Building Contract
    4. Payment processes
  2. Timing
    1. ​Date of Application
    2. Date on site
    3. Date of Valuation
    4. Date of Recommendation
    5. Date of Certificate
    6. Frequency of Interim Certificates
    7. ​Period for Honouring Certificates
    8. Payment to Nominated Sub-Contractors and Suppliers
    9. Pay-when-paid
  3. Amounts
    1. ​Gross valuation
    2. Retention
    3. Nett valuation
    4. Nett amount due
  4. Gross Valuation
    1. ​Work properly executed
    2. Unfixed materials on site
    3. Materials off-site
    4. Total value to-date instead of value since last
  5. Retention
    1. Use of retention
    2. No interest for retention
    3. Percentage of Certified Value retained
    4. Limit of Retention
    5. Release of one moiety of retention upon Practical Completion
    6. Release of balance of retention
    7. Other things to check before release of balance of retention
  6. Final Payment
    1. Final Certificate
    2. Final payment pre-requisites
    3. Final Certificate as conclusive evidence
  7. Advance Payments 预付款 and Deposit Payments
    1. Meaning
    2. Advance payments not preferred by Employer
    3. Situation where advance payments are adopted
    4. ​Terms of payment with deposit
    5. Recovery of advance payments relative to progress payments
    6. Faster recovery of advance payments
    7. Bonds
  8. Stage Payments
    1. Stage payment
    2. Use of stage or milestone payments
    3. Problems with stage or milestone payments
    4. Regular milestone payments
    5. Use of regular milestone payments
    6. Problems with regular milestone payments
    7. ​Time-related milestone payment
    8. ​Use of time-related milestone payments
    9. Possible solutions to alleviate problems
  9. Valuation < The following raw scripts not completed >
    1. Valuation format
    2. First payment format and procedure
    3. Payment for preliminaries 开办经营要求 / 措施费的支付
    4. ​Wastage
    5. Acceptability of Contractor’s suppliers’ quotations
    6. Effect of BQ rates on value payable of materials on site
    7. ​Arrive at the value
  10. Sample Forms
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Generally

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​Scope

  1. This QS Practice Manual covers payment valuations
  2. The Contract clauses refer to those of SFBCwQ.1986(2ndAmend.July1999) and SFBCnQ.1986(2ndAmend.July1999)
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Terms of payment

  1. There can be broadly two types of payment terms:
    • Progress payments 进度款 which are made at regular intervals, usually monthly, based on valuation of value of actual work done and materials delivered, with provisions for retention
    • Stage payments which are made not at regular intervals, but are made when certain stage of construction has been achieved, e.g. upon concreting of the floor at mid-height of the building, upon concreting of the roof, upon submission for Occupation Permit, etc.
  2. The progress payment method is the method used in the Standard Form of Building Contract and will be described in detail first in this Manual. Discussion of stage payments will be given at the end of this Manual
  3. The terms “milestone payments”, “regular milestone payments” and “time-related milestone payments” are also used in this manual. It should be noted that these terms are not terms with established definitions in the industry but are used here for identification purposes only
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Standard Form of Building Contract

  1. For illustration purposes, the following Main Contract Form and Sub-Contract Form will be used:
    • Main Contract Form: “Agreement & Schedule of Conditions of Building Contract for use in the Hong Kong Special Administrative Region” drawn up by The Hong Kong Institute of Architects, The Royal Institution of Chartered Surveyors (Hong Kong Branch) and The Society of Builders, Hong Kong, First RICS (HK Branch) Edition 1986 (with quantities) incorporating up to Second amendments published in July, 1999
    • Sub-Contract Form: “Sub-Contract for use where the Sub-Contractor is nominated under the Standard Form of Building Contract for Hong Kong” drawn up by The Hong Kong Institute of Architects, The Royal Institution of Chartered Surveyors (Hong Kong Branch) and The Society of Builders, Hong Kong, First RICS (HK Branch) Edition 1986 incorporating up to Second amendments published in February, 2000
  2. The principle should be the same for most of other contracts
  3. Provisions for payment have been specified in:
    • Clause 30 “Certificates and Payments” of the Main Contract Form
    • Clause 11 “Main Contractor to apply for Certificates and Payment” of the Sub-Contract Form
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Payment processes

  1. The usual processes for payment are:
    • Contractor’s Payment Application 付款申请 -> QS’s Valuation 付款估值 -> Architect’s Certification 批款证书 -> Contractor’s Presentation -> Employer’s Honouring
  2. A more detailed description is as follows:
    • the Main Contractor, Nominated Sub-Contractors and Nominated Suppliers supplies materials and, where applicable, carry out work
    • the Main Contractor, Nominated Sub-Contractors and Nominated Suppliers calculate the value of materials supplied and work done by them
    • the Nominated Sub-Contractors and Nominated Suppliers submit their payment application to the Main Contractor, with copies to the Architect, the Quantity Surveyor, the M&E Consultant (where applicable), and the Employer (usually)
    • the Main Contractor submits his payment application (incorporating applications from the Nominated Sub-Contractors and Nominated Suppliers) to the Architect, with copies to the Employer, the Quantity Surveyor, the M&E Consultant (where applicable)
    • the Quantity Surveyor visits the Site 现场视察, inspects and records the extent of unfixed materials and work done on site, in the presence of the Main Contractor’s representative (usually site quantity surveyor) and, if considered necessary, representatives from the Nominated Sub-Contractors and Nominated Suppliers
    • the Quantity Surveyor calculates the values of unfixed materials and work done on site
    • the M&E Consultant similarly visits the Site, value M&E works, and issue his payment recommendation to the Quantity Surveyor
    • the Quantity Surveyor issues his payment recommendation (incorporating the M&E Consultant’s recommendation) to the Architect, with copies to the Employer, the M&E Consultant, Main Contractor
    • the Quantity Surveyor issues advices to individual Nominated Sub-Contractors and Suppliers to inform them the amount of payment included in the main payment recommendation
    • the Architect issues his payment certificates certifying the amounts payable to the Main Contractor, Nominated Sub-Contractors and Nominated Suppliers
    • the Main Contractor presents the payment certificate to the Employer for payment
    • the Employer pays the Main Contractor
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Timing

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​Date of Application

  • Date of Application” means the date of the Contractor’s payment application

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Date on site

  • Date on site” means the date when the QS visits the Site to carry out valuation

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Date of Valuation

  • Date of Valuation” means the cut-off date to calculate work done and materials on site. This is usually the same as the Date on site

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Date of Recommendation

  • Date of Recommendation” means the date of the QS’s recommendation for payment. This can only be later than the Date of Valuation

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Date of Certificate

  • Date of Certificate” means the date of the Architect’s Interim Certificate

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Frequency of Interim Certificates

  1. The Standard Form of Building Contract does not have specific provisions regarding the time for payment application, site valuation and issuance of recommendation
  2. The Standard Form of Building Contract does specify that Interim Certificates shall be issued “at the Period of Interim Certificates”. “Period of Interim Certificates” means the time interval between successive payment certificates. This is usually one month. This means that Interim Certificates should be issued at regular interval of one month. An Interim Certificate should not be issued later than one month after the previous Interim Certificate
  3. The Standard Form of Building Contract also specifies that the value of work done and materials on site that can be included in an Interim Certificate can be those done or delivered up to and including a date not more than seven days before the date of the Certificate”. This means that the Date of Valuation should not be more than 7 days before the Date of Certificate. Within this period of 7 days, the QS Payment Recommendation and the Architect’s Interim Certificate should be issued. This is seldom achieved in practice. The QS usually would take a few days to issue the Payment Recommendation after site visit, and the Architect would also take a few days to issue the Interim Certificate. Some people misunderstood that the Architect has 7 days to issue the Interim Certificate after receipt of the QS’s Recommendation
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​Period for Honouring Certificates

  1. The Main Contractor will not get his payment upon receipt of the Interim Certificate. The Employer will have a grace period for making payment. This is called “Period for Honouring Certificates”. This is usually set at “14 calendar days from presentation of certificate”. It means that the Main Contractor has to present the Certificate to the Employer for payment, and the Employer has 14 days to make payment

  2. The Main Contractor usually would issue an invoice for the same amount when presenting the Certificate

  3. Some developers would require a period long than 14 days
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Payment to Nominated Sub-Contractors and Suppliers

  • The Main Contractor shall pay the Nominated Sub-Contractors and Suppliers within 14 days of receipt by the Main Contractor of the relevant payment from the Employer
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Pay-when-paid

  1. Payment to Nominated Sub-Contractors and Suppliers is a “pay-when-paid” arrangement. The Main Contractor would not pay if he has not received the same money from the Employer
  2. Argument would arise if due to deductions as a result of certain defaults of the Main Contractor, the total amount certified as due to the Main Contractor is less than that certified as due to Nominated Sub-Contractors and Suppliers, but the Main Contractor denies that the defaults are his, then the Main Contractor would declare that he has not received sufficient payment in respect of the Nominated Sub-Contracts and Supply Contracts and therefore he would not pay in full. The situation would become messier if the defaults in question relate to delays and disruptions where the Nominated Sub-Contractors and Suppliers are implicated as well
  3. Further discussion on the “pay-when-paid” and its variances like “paid-if-paid” and “pay-when-and-if-paid” would be beyond the scope of this Manual
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Amounts

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​Gross valuation

  • Gross valuation” of payment is the estimated value of:
    • the work properly executed and of
    • the materials and goods delivered to or adjacent to the Works for use thereon
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Retention

  • Retention is a portion of the Gross Valuation retained from payment and is to be released until after Practical Completion
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Nett valuation

  • Nett valuation” of payment is gross valuation less retention

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Nett amount due

  • “Nett amount due” is the nett valuation less previous payments. The relationship of the various terms can be illustrated by the following example:

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Gross Valuation

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​Work properly executed

  1. The value of work done should include all those work partially or wholly done on site but shall exclude those non-conforming or defective work
  2. If an item of work is specifically rejected by the Architect, its value should not be included the Gross Valuation
  3. If defects are found in an item of work which has partially been done but the defects are not serious enough for rejection of the whole of the work, then when calculating the proportion of the value of the work to be included in the Gross Valuation, some reductions should be made to account for the defects
  4. Difficulties would arise upon Practical Completion when substantially all items of work are done but there are still defects to be made good. Contractors would obviously not like to see that all items in questions are subject to a reduction. They would argue that there is still retention to be retained. Whether reduction on top of retention should be made would depend on the seriousness of the defects. In theory, defective work should be rejected and therefore not paid. However, if the work is basically all right but with some minor imperfections which require making good but not complete replacement of the work, and if the cost of making good such minor imperfections can be covered by the retention money, then the full value of the work should be included in the Gross Valuation
  5. To avoid doubt, it is advisable for the Architect to formally reject the whole of those items of work which have serious defects
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Unfixed materials on site

  1. A simplified term for “materials and goods delivered to or adjacent to the Works for use thereon” would be “unfixed materials on site”. If the materials and goods have been fixed, their value would be included in the value of work done. If materials are not on or adjacent to the Site, they would not normally be included in the Gross Valuation
  2. Materials and goods can be easily taken out of the Site or may be stolen. Unfixed materials and goods are more vulnerable to loss and damage whether due to natural or human causes. Some materials such as cement and lime may easily deteriorate if they are not stored with proper protection. Therefore, to qualify for inclusion in the Gross Valuation, materials and goods must have been:
    • reasonably, properly and not prematurely brought to or placed adjacent to the Works
    • adequately protected against weather or other casualties
  3. Most materials and goods should be delivered not more than one month in advance of the time required for use. Quantities delivered more than one month in advance should be queried
  4. Possibly acceptable reasons are:
    • The total quantity involved is so small that it is not economical to divide into more than one delivery
    • The quantity must be delivered in one batch to ensure consistency in colour, e.g. stone
  5. The following reasons which are for the contractor’s own benefit and convenience would not be acceptable:
    • Larger quantities are delivered to secure earlier payment
    • Larger quantities are delivered to secure the cheaper supply price
    • Larger quantities are delivered to reduce off-site storage costs
  6. Prompt delivery in accordance with the original programme without regard to the actual progress may still be a premature delivery
  7. Quantities delivered more than two months in advance can be reviewed as premature
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Materials off-site

  1. Payment is not normally made for materials not yet delivered to site
  2. Clause 30(2)(A) of the Main Contract Form which deals with payment for materials off-site is part of the Contract only if specifically so stated in the Contract Bills
  3. Payment for materials off-site is subject to the discretion of the Architect. The Architect would obviously not exercise this discretionary power without the Main Contractor’s request and without the Employer’s consent. Therefore, payment for materials off-site is usually subject to a special agreement detailing the conditions to exercise the discretionary power. The agreement needs not be very formal but should be in writing
  4. The provisions in Clause 30(2)(A) of the Main Contract Form can be used a guideline for drafting the agreement
  5. To qualify for payment, the following conditions should be met:
    • (a) The materials or goods are intended for inclusion in the Works
    • (b) The materials or goods are in accordance with this Contract
    • (c) The Main Contractor furnishes to the Architect reasonable proof that the premises where the materials or goods have been assembled or stored are owned or leased by the Main Contractor
    • (d) The materials or goods have been and are set apart at the premises where they have been assembled or stored, and have been clearly and visibly marked, individually or in sets, so as to identify
      • . the person to whose order they are held
      • . their destination as being the Works
    • (e) The Main Contractor furnishes to the Architect evidence that such materials or goods are insured against the perils similar to those set out in the insurance clause of the Contract
    • (f) The Main Contractor furnishes to the Architect reasonable proof that the property in such materials or goods is in the Main Contractor and that the conditions set out in paragraphs (a) to (e) above have been complied with
  6. The requirements of paragraphs (a) and (b) are obvious
  7. The requirements of paragraphs (c) and (d) are to ensure the materials and goods are distinguishable from other materials and goods in the same storage place
  8. The requirements of paragraph (e) are to ensure appropriate insurance cover against loss or damage after payment and prior to delivery
  9. The requirements of paragraph (f) are very important. If the Main Contractor does not validly possess the property in the materials or goods, the property cannot validly pass to the Employer even if the Employer has paid for it. This is particularly so if the materials and goods are store off-site and mixed with other materials and goods not for the Works
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Total value to-date instead of value since last

  1. One very important rule in making payment valuation is: always value the total value to-date since the beginning instead of value the value since the last payment. This rule is implied by the Form of Contract and is a golden rule to follow
  2. Valuation every month cannot be exact. There could be errors in previous valuations. Work or materials included in previous valuation could subsequent be found to be defective. Therefore, by valuing the total value to-date since the beginning and subtracting from it whatever was previously valued, whether the previously valued was correct or incorrect, previous errors would not perpetuate unnoticed
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Retention

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Use of retention

  • The primary intention to have retention is to reserve some money in case the contractors fail to make good defects and the Employer has to employ others to do so. However, “the Main Contractor's beneficial interest therein shall be subject only to the right of the Employer to have recourse thereto from time to time for payment of any amount which he is entitled under the provisions of this Contract to deduct from any sum due or to become due to the Main Contractor.” (Clause 30(2) of the Main Contract Form). The Employer is entitled to make other deductions from the retention so long as he is entitled to make deductions from the Contract
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No interest for retention

  • Retention is held by the Employer. “The Employer's interest in any amounts so retained shall be fiduciary as trustee for the Main Contractor (but without obligation to invest)” (Clause 30(2) of the Main Contract Form). The retention will not have increase for interest upon release
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Percentage of Certified Value retained

  1. The percentage of the Gross Valuation that the Employer may retain is called “Percentage of Certified Value Retained” or “Retention Percentage”. “Certified Value” means the Gross Valuation
  2. The percentage is usually 10%
  3. If the Contract Sum includes Prime Cost Sums for Nominated Sub-Contracts, the Percentage of Certified Value Retained would be stated as “10% of the certified value of the Main Contractor’s own work plus the Retention Funds held in respect of Nominated Sub-Contractors”. This means that the retention in respect of the Main Contractor’s own work is to be calculated separately from that of the Nominated Sub-Contractors
  4. Retention in respect of Nominated Sub-Contractors shall be dealt with in accordance with the Nominated Sub-Contracts. The provisions and percentages would usually be similar to the Main Contract
  5. Nominated Supply Contracts usually do not have retention
  6. Nominated Sub-Contractors’ retentions are also held by the Employer
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Limit of Retention

  1. When the amount of retention reaches certain limit, the retention would not be increased further. That limit is called “Limit of Retention Fund” or “Limit of Retention
  2. The Limit of Retention is usually 5% of the Contract Sum
  3. If the Contract Sum includes Prime Cost Sums for Nominated Sub-Contracts and Supply Contracts, the Limit of Retention would be stated as “5% of the Contract Sum excluding prime cost sums for Nominated Sub-Contractors’ works (to the nearest one thousand dollars) plus the Retention Funds held in respect of Nominated Sub-Contractors”. This means that the limit in respect of the Main Contractor’s own work is calculated separately from the Nominated Sub-Contractors’ works. The Main Contractor’s own Limit of Retention is calculated based on “the Contract Sum excluding prime cost sums for Nominated Sub-Contracts”. Therefore, this is less than that based on the Contract Sum. However, it should be noted that prime cost sums for Nominated Supply Contracts are not subtracted. This means that the Main Contractor has to share a burden of retention in respect of the value of Nominated Supply Contracts which usually do not have retention
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Release of one moiety of retention upon Practical Completion

  1. One moiety” means “half”. One moiety of the retention is to be released upon the issue of the Certificate of Practical Completion and the other moiety is to be released upon the issue of the Certificate of Completion of Making Good Defects
  2. It the time is not too distant or the Main Contractor does not have serious objection, the release of the first moiety of retention can be included in the next Interim Certificate following Practical Completion, otherwise, a special Interim Certificate should be issued to release the retention
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Release of balance of retention

  1. The balance of the retention is to be released on the expiration of the Defects Liability Period or on the issue of the Certificate of Completion of Making Good Defects, whichever is the later
  2. It is rare that the Certificate of Completion of Making Good Defects would be issued before the expiration of the Defects Liability Period. Certificate of Completion of Making Good Defects would usually be issued after the expiration of the Defects Liability Period and the completion of the making good of defects discovered prior to the expiration of the Defects Liability Period
  3. A payment certificate is to be issued to release the balance of the retention
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Other things to check before release of balance of retention

  1. Release of the balance of the retention does not have to wait till the settlement of the Final Account. However, the Final Contract Sum assessed at that moment should be checked to see if there has been overpayment. If there has been overpayment, part of the balance of the retention may need to be used to off-set the overpayment
  2. The Contract may also specify in the Special Conditions, the Bills of Quantities or the Specification that the release of retention is subject to submission of all guarantees, warranties, bonds, maintenance manuals, operating instructions, as-built drawings, etc. The contract provisions should be checked to ensure compliance before release of the balance of the retention
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Final Payment

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Final Certificate

  1. Payment of the balance of the Final Account to the Main Contractor is certified by means of the Final Certificate
  2. The Final Certificate is to be issued so soon as is practicable but before the expiration of three months from the latest of the following events:
    • the end of the Defects Liability Period
    • completion of making good defects
    • receipt by the Architect from the Main Contractor of the documents necessary for the preparation of the Final Account
  3. The Final Certificate shall state the balance of money payable to the Main Contractor or special circumstances the money owed by the Main Contractor to the Employer
  4. The Main Contractor may in the end owe money to the Employer due to, without limitation:
    • Overpayment of variations and provisional items
    • Retention being inadequate to cover the Employer’s cost of making good defects not made good by the Main Contractor
    • Deduction for loss and expense arising from defaults of the Main Contractor
    • Deduction for liquidated damages
  5. Subject to any deductions authorized under the Contract, the Main Contractor shall be entitled to receive the amount certified as due from the fourteenth day after presentation of the Final Certificate by the Main Contractor to the Employer
  6. Usually the Final Account shall cover all deductions authorized under the Contract. However, if the Final Account is agreed much earlier than the issue of the Final Certificate, the Final Certificate should take into account of all authorized deductions arising after the agreement of the Final Account. Further deduction from the amount stated as due in the Final Certificate should be a very rare occurrence
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Final payment pre-requisites

  • Before the Final Certificate is issued, the following should be done:
    • Issue of Certificate of Completion of Making Good Defects
    • Settlement of Final Account
    • Settlement of extension of time and liquidated damages
    • Submission of proof of previous payments to Nominated Sub-Contractors and Suppliers
    • Submission of warranties and guarantees
    • Submission of as-built records
    • Handover of specified spares, and handover of surplus materials supplied by the Employer and specified to be returned
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Final Certificate as conclusive evidence

  1. Final Certificate is not only a certificate of payment but is also a certificate of satisfaction of the work done by the Main Contractor. Clause 30(7) of the Main Contract Form states that “Unless a written request to concur in the appointment of an arbitrator shall have been given under clause 35 of these Conditions by either party before the Final Certificate has been issued or by the Main Contractor within fourteen days after such issue, the said certificate shall be conclusive evidence in any proceedings arising out of this Contract (whether by arbitration under clause 35 of these Conditions or otherwise) that the Works have been properly carried out and completed in accordance with the terms of this Contract and that any necessary effect has been given to all the terms of this Contract which require an adjustment to be made to the Contract Sum, except and insofar as any sum mentioned in the said certificate is erroneous by reason of any of the following:
    • Fraud, dishonesty or fraudulent concealment relating to the Works, or any part thereof, or to any matter dealt with in the said certificate
    • Any defect (including any omission) in the Works, or any part thereof which reasonable inspection or examination at any reasonable time during the carrying out of the Works or before the issue of the said certificate would not have disclosed
    • Any accidental inclusion or exclusion of any work, materials, goods or figure in any computation or any arithmetical error in any computation
  2. In England, where the wordings of the equivalent clause in the standard form of contract are different and where the consumer protection extends to subsequent buyers and occupiers of the buildings, the Final Certificate is no longer final and conclusive evidence that the Works have been properly carried out and completed. The Main Contractor is not completely released by the Final Certificate
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Advance Payments 预付款 and Deposit Payments

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Meaning

  1. Advance payment or deposit payment is a portion of the Contract Sum to be paid upon the award of the Contract as a security for the Contract and to facilitate the Contractor to procure materials and to cover his early expenses
  2. Both terms usually mean the same thing for everyday use. However, there can be some important difference between deposits payments and advance payments in some contracts. For some sales contracts, deposit is a consideration for securing the formal execution or further performance of the contract. If the buyer fails to proceed, the deposit he paid would be forfeited. If the seller fails to proceed, he has to refund the deposit in double. Advance payments do not have such implied meaning. However, the actual meaning of the two terms would depend on the terms of the individual agreements or contracts
  3. Advance payments in the following discussions include deposit payments
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Advance payments not preferred by Employer

  1. Normal progress payments do not provide for advance payments or deposit payments or advance payments
  2. Advance payment is an overpayment from the point of view of the Employer, and the overpayment would possibly exists until the end of the Contract, depending on the terms of recovering the advance payments in subsequent payments
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Situation where advance payments are adopted

  1. Advance payments are usually required by suppliers or contractors for sales contracts, lift and escalator contracts, fitting out contracts, minor contracts of short durations, contracts in Mainland China
  2. Advance payments are also appropriate for contracts which involve substantial up-front expenditure before materials are delivered to site
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​Terms of payment with deposit

  1. Terms of payment in the form of “10% deposit upon commencement, 85% progress payment, 2.5% retention to be released upon practical completion and 2.5% retention to be released at end of Defects Liability Period ” is quite common for less formal contracts. This means that after payment of the 10% deposit, 85% of the value of work done and materials delivered is to be paid during the course of the Works
  2. An example of payment valuation with deposit is as follows: << to insert >>
  3. A drawback of this format is that retention withheld is not shown. Another drawback is that if there is increase or decrease in the Contract Sum, the increase should not be paid 85% only and the deposit should be reduced in the case of a decrease in the Contract Sum, otherwise fatal overpayment will occur
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Recovery of advance payments relative to progress payments

  1. A better way to present the payment valuation is as follows:
  2. Here, the retention is seen. The advance payment is decreasing rather than being fixed
  3. It should be noted that advance payment should not be subject to retention. This is in accordance with the terms of payment mentioned above, and is also conceptually in order
  4. Advance payments made up-front are recovered from subsequent payments. Recovery of the advance payments in subsequent payments is pro-rata to the progress value of work done and materials delivered
  5. Like the example just given above, the amount of advance payments to be reduced can be calculated as:
    • Original advance payment x Gross amount of progress payment / Original Contract Sum
  6. Suppose the original advance payment is equal to 10% of the Original Contract Sum, the amount to be reduced is also equal to 10% of the gross amount of progress payment
  7. If the Contract Sum is increased during the course of the Works, the recovery of deposit will be quicker. However, if the Contract Sum is reduced during the course of the Works, the recovery will be slower and it create leave a portion unrecovered upon Practical Completion. Therefore, this method of calculation still cannot resolve the earlier comments regarding increase or decrease to the Contract Sum. It is advisable that the formula should be revised to relate to the Estimated Final Contract Sum instead of the Original Contract Sum as follows:
    • Original advance payment x Gross amount of progress payment / Estimated Final Contract Sum
  8. No matter which of the above calculations are used, only until the contract works are fully completed will the advance payment be fully recovered. That is why advance payment creates overpayment until Practical Completion or beyond
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Faster recovery of advance payments

  1. To avoid leaving the advance payments there for too long, other methods to ensure quicker recovery of advance payments can be used, subject to agreement by both contract parties
  2. A method which would not be welcome by contractors would be full recovery in the second Interim Certificate
  3. Other more moderate methods are:
    • (a) Rate of recovery of advance payments being faster than the progress of work – for example advance payment made equal to 10% of the Contract Sum to be recovered at 20% of the gross amount of progress payment
    • (b) Recovery by instalments at specified number of Interim Certificates, e.g. at the 3rd, 5th and 7th payments
    • (c) Recovery by instalments at Interim Certificates issued after specified days, e.g. x, y, z months after commencement of the Works
  4. The methods described in paragraphs (b) and (c) above are not dependent on the progress of work, it has the advantage of forcing the contractors not to be late in progress, otherwise he may receive less cash inflow due
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Bonds

  • Advance payments or deposits are a kind of overpayment before they are fully recovered. If the Contractor or Supplier disappears or repudiates the Contract after receipt of advance payments or deposits, the Employer will have no redress unless measures like the following are implemented:
    • The amount of surety bond to be increased to cover the advance payments or deposit payments and the surety bond to be obtained before payment
    • Advance payment bond to be provided by the Contractor or Supplier as security
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Stage Payments

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Stage payment

  1. Under a “stage payment” method, the Works are broken down into a number of stages of completion each with a value which will be paid on completion of the relevant stage of the Works. Unlike the normal progress payment method where work done and materials on site are valued and paid for at regular intervals, stage payments are not made at regular intervals but are made only when a certain stage of the Works is completed
  2. For some contracts when the various stages of completion of the Works are defined by means of milestones, the stage payment method is called “milestone payment” method
  3. An example of stage or milestone payment would be:
  4. The value assigned to each stage or milestone should preferably be equal to the value of the work required to achieve the stage or milestone, but they can also be made different purposely
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Use of stage or milestone payments

  1. Stage payment method is usually for sales contracts, lift and escalator contracts, fitting out contracts, contracts for single block speculative residential building, minor contracts, civil engineering contracts
  2. Stage payment method would be appropriate for contracts which can have easily defined stages of completion of the Works, for contracts which are of simple nature, for contracts which the Architect would not like to spend time to value the quantities of work and materials delivered on regular basis
  3. Stage or milestone payments are simple to operate if not subjected to Employers’ changes or Contractors’ abuse
  4. Stage or milestone payments are not suitable for complex projects which are prone to design and programme changes
  5. Substantial design and programme changes may render the original terms of payments not workable and require revisions which may be too frequent and laborious that the original intent to save work in carrying out normal valuation based on work done and materials delivery is no longer realized
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Problems with stage or milestone payments

  1. If the definitions of stages and milestones should be broad and simple enough to enable easy judgment as to their achievement by visual inspection without requiring detailed valuation
  2. If the definitions of the stages are too rigid, literal interpretation of the definitions may result in non-achievement of the stages and hence non-payment. A definition of “100% completion”, if interpreted literally, would always lead to argument
  3. If the definitions of the stages are too complex thus requiring detailed calculations, the original intent to have a simple payment valuation method is defeated
  4. On the other hand, if the definitions are too loose, the Contractor may take advantage to do work just enough to match the definitions while the value assigned for the stage may in fact have already allowed for greater extent of work
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Regular milestone payments

  1. A variance of the stage payment or milestone payment method is to break down the Works into greater number of more detailed stages or milestones and to value the Works at regular intervals. By the regular valuation date, the various stages or milestones are checked to see if they are achieved. The corresponding amounts of those stages or milestones achieved will be included in the current payment certificate. No payment will be made in respect of those not achieved. An example of such milestone payment calculation is as follows:
  2. The time factor is made a factor in making payments
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Use of regular milestone payments

  • The advantage of the regular milestone payment method is that valuation is made at regular intervals, such that the Contractor can receive money regularly though smaller in amount as compared to non-regular stage payment method
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Problems with regular milestone payments

  1. To enable regular milestone payments to work, the Works have to be broken done into greater number of milestones. Some degree of concurrency would be created. A case may be encountered where the Contractor may be so unlucky that substantial number of milestones are only 95% achieved and therefore he cannot be entitled to payment though the Works if viewed as a whole may be 40% complete
  2. Furthermore, the milestones are usually defined with reference to a programme planned before tendering. The programmed activities planned before tendering without the Contractor’s input may not be realistic when compared to the Contractor’s intended sequence of work after contract award. If there is any further critical variation to the Works or serious disruption to the original programme and logic such that the definitions of the activities can no longer be achievable or can only be achieved until the very late stage of the Works, payments will be seriously deferred. The milestone payment schedule needs to be revised to be realistic or workable The task of making such revision may be similar to that required to do a normal progress valuation. If the milestone payment schedule needs to be constantly revised to be realistic, it may be better to use normal progress method
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  1. A more stringent form of time-related milestone payments is to relate the milestone to a specific calendar day or a specific period after commencement. Failure to achieve the milestone by the prescribed date or within the prescribed period will lead to no payment and payment will have to wait till a subsequent qualifying milestone. An example would be like this:
  2. If Milestone B cannot be achieved by 1/6/2002, no payment will be made. If Milestone C is achieved by 1/9/2002, payment will be made for Milestones B and C, otherwise, depending on the detailed terms of the milestone payment method, no payment will be made for both or payment will be made for Milestone B only
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  1. Time-related milestone payments put strong emphasis on achievement in relation to time and greater commitment from contractors towards time
  2. Time-related milestone payment method is suitable for time critical projects
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Possible solutions to alleviate problems

  • To alleviate some of the problems with stage or milestone payments mentioned above, the following measures may be adopted:
    • Use realistic definitions for stages or milestones with margin for interpretation
    • Minimize concurrent activities when devising the stages or milestones
    • Minimize post contract changes
    • Include a condition to the effect that in case the cumulative total of stage payments deviates from the value based on work done and materials delivery by a certain percentage then payments will be based on the latter. (Valuation needs not be done every time but would be done only when it is suspected that the deviation is great.)
    • Re-agree the terms when it is consider necessary to better represent the latest situation
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Valuation < The following raw scripts not completed >

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Valuation format

  • The simplest form of a payment valua