CONTRACT DOCUMENTS

16 OCTOBER 2009

VOLUME 1 OF 9

DESCRIPTION

VOLUME 1

ARTICLES OF SIA CONTRACT

LETTER OF INTENT TO AWARD from SKM to Lum Chang dated 18 Sep 2009

(ref : SKM/SG62863/GSM/SR/LC_180909)

SIA CONDITIONS OF CONTRACT & AMENDMENT

APPENDIX

SUPPLEMENTAL CONDITIONS

REVISED SUMMARY OF TENDER (Bill of Quantities No. 1 and 2)

REVISED BILL OF QUANTITIES No. 1 – Preliminaries

REVISED BILL OF QUANTITIES No. 2 – (Structural and Architectural Works)

REVISED SUMMARY OF TENDER (Bill of Quantities No. 3 to 9)

REVISED BILL OF QUANTITIES No. 3 – (ACMV)

REVISED BILL OF QUANTITIES No. 4 – (Electrical Installation)

REVISED BILL OF QUANTITIES No. 5 – (Fire Protection Installation)

REVISED BILL OF QUANTITIES No. 6 – (Plumb, San. & Drain. Installation)

REVISED BILL OF QUANTITIES No. 7 – Schedule of Works (CityGas Installation)

REVISED BILL OF QUANTITIES No. 8 – Schedule of Works (Compressed Air Installation)

REVISED BILL OF QUANTITIES No. 9 – Schedule of Works (Vertical Transportation)

PERFORMANCE GUARANTEE (specimen)

PRODUCT GUARANTEE (specimen)

SCHEDULE OF RATES (ARCHITECTURAL) – SIGNED

SCHEDULE OF DAYWORK RATES – SIGNED

CONTRACTOR’S OBLIGATIONS

PROPOSED ERECTION OF A SINGLE-USER INDUSTRIAL DEVELOPMENT WITH 1 BLOCK OF 4 STOREY ADMIN

OFFICE AND ANCILLARY FACILITIES ON LOTS 03950PT, 04016PT & 04089PT MK07

at

                TUAS SOUTH AVENUE 1

Singapore Dollars

    FORTY SIX MILLION FOUR HUNDRED AND SIXTY THREE THOUSAND EIGHT HUNDRED AND

            EIGHTY EIGHT ONLY

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TYPE OF CONTRACT

This is a Lump Sum Contract and the price is a fixed price not subject to measurement or recalculation should the actual quantities of work and materials differ from any estimates available at the time of contracting, except in regard to variations which may be ordered by the Architect, which shall be valued under the terms of the Contract in accordance with the Schedule of Rates.

The expression “Schedule of Rates” wherever used in this contract shall include any document, however entitled or described, which is signed by the Employer and Contractor as a Contract Document and which is intended to be used for the purpose of valuing variations, or in assisting in the calculation of interim payment in accordance with sub-clause 31(4) or (5) of the Conditions.

Interim payment shall be by fixed instalments of the Contract Sum payable on completion of defined stages of the work in accordance with clause 31(5) of the Conditions and the Appendix to the Contract or other Contract Documents.

Interim payment shall be by periodical valuation of the Work in accordance with clause 31(4) of the Conditions and the Appendix to the Contract.

ARCHITECT

Mr. GORDON S. MAXTED

of the firm of

QUANTITY SURVEYOR

Mr. FRANCIS NG

of the firm of

Delete whichever sub-clause (c) is not applicable. [See also Appendix (and/or Specification) to Contract Conditions, which will need corresponding provisions defining stages and amounts of instalments.]

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PRICES TO BE INCLUSIVE

CONTRACT DOCUMENTS

These Articles of Contract.

The Conditions of Contract and Appendix annexed thereto.

Drawings identified and signed by the parties as the Contract Drawings on which the Contractor has based his prices.

A specification similarly identified and signed as the Contract Specification on which the Contractor had based his prices.

A Schedule of Rates priced and initiated or signed on behalf of the Contractor and the Employer.

Such other letters of documents, including any Invitations to Tender, Tender forms, or letters of acceptance, as the parties may agree and attach hereto as Contract Documents, in which event such documents shall be initiated or signed on behalf of both parties when attached hereto. A list identifying such documents shall also be set out in or attached to the Appendix to the Conditions of Contract.

INTERPRETATION AND GUIDANCE NOTES

ASSIGNS

DEFINITIONS AND INTERPRETATION

“SOP Act” means the Building and Construction Industry Security of Payment Act 2004 or any subsequent amendment thereto.

“SOP Regulations” means the Building and Construction Industry Security of Payment Regulations 2005 or any remaking thereof or any amendment to the regulation therein.

“Payment claim” shall have the same meaning and effect as the words “payment claim” in the SOP Act and SOP Regulations .

“Payment response” shall have the same meaning and effect as the words “payment response” in the SOP Act and SOP Regulations.

“Progress payment” shall have the same meaning and effect as the words “progress payment” in the SOP Act and SOP Regulations.

“Supply contract” shall have the same meaning and effect as the words “supply contract” in the SOP Act and SOP Regulations.

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IN WITNESS WHEREOF

the day and year first above written

(hand of the Employer has been hereunto set

the

*(                                                                                                   )

(Common seal of the Employer has been hereunto affixed)

Signed by the said

*The Common Seal of

Was hereunto affixed in the presence of

Name

KRISTINA CHENG

Address

c/o 9 TUAS AVENUE 12

                S(639031)

Description

            PA to GM

(hand of the Contractor has been hereunto set

and the

*(                                                                                                      )

Signed by the said

Signed by the said

*The Common Seal of

was hereunto affixed in the presence of

Name

CHONG SOON TECK

Address

1 Selegie Road, #06-02

                PoMo, Singapore 188306

                Tel 6273 8888 Fax 6311 0909

Description

GENERAL MANAGER, COMMERCIAL

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1.

ARCHITECT’S DIRECTIONS AND INSTRUCTIONS

1.(1)

The Contractor shall at all times carry out, bring to completion, and maintain the Works in accordance with all the requirements of the Contract and must (subject to sub-clause (8) of this Condition) comply with all written directions and instructions given in relation thereto by the Architect. All orders of the Architect shall be expressed to be either directions or instructions, and shall be given in writing if requested by the Contractor. Any direction or instruction given verbally shall be deemed to have been given in writing, and have retrospective effect from the date of the verbal direction or instruction, provided that the Contractor confirms the direction or instruction in writing within 14 days of its being given, and that the Architect does not within 14 days of receipt of the written confirmation dissent from or withdraw the direction or instruction. If the Architect withdraws any verbal direction or instruction previously given by him within the latter 14 days, then the Contractor shall he compensated for any expense reasonably incurred by him in complying therewith. In addition the Architect may (but shall not be obliged to) at any time subsequently confirm in writing any direction or instruction previously given verbally by him, in which event the confirmation shall have retrospective effect as a written direction or instruction given at the time of the verbal direction or instruction. Verbal directions or instructions of the Architect or Clerk of Works, or written or other orders or requests not expressed to be directions or instructions, need not be complied with by the Contractor if the Architect fails or refuses to confirm the same in writing in properly expressed terms with the minimum of delay when requested to do so, and no claim will be permitted under this Contract based upon an order or request of the Architect unless expressed as a written direction or instruction or confirmed in writing to or by the Architect under the terms of this sub-clause of the Conditions. Directions or instructions given by a Clerk of Works appointed by the Employer shall be of no effect unless confirmed in writing by the Architect at any time, or by the Contractor to the Architect and not dissented from in writing within the same period as Architect’s verbal directions or instructions, in which events such directions or instructions shall be retrospectively validated in the same way as Architect’s instructions. Without such validation the Contractor shall not be entitled to compensation or expense incurred by compliance with any instructions of any Clerk of Works.

1.(2)

In this Contract or when used by the Architect the term “direction” shall mean an order of the Architect (as opposed to suggestions, recommendations or agreements with proposals made by the Contractor) compliance with which will not under the terms of the Contract entitle the Contractor to additional payment or compensation or to an increase in the Contract Sum, but which may in some cases result under the terms of the Contract in a reduction of the Contract Sum, whereas the term “instruction” shall mean an order of the Architect compliance with which, while it may in some cases involve a reduction of the Contract Sum, will in principle entitle the Contractor in an appropriate case under the terms of the Contract to additional payment or compensation or to an increase in the Contract Sum. All orders given or confirmed in writing to the Contractor by the Architect shall be expressed by him to be either “instructions” or “directions”.

1.(3)

The principle matters under the Contract in respect of which the Architect shall have power to give directions as:-

(a)

To secure proper compliance by the Contractor with any existing contract obligations in regards to the permanent work, or to any temporary works or methods of working.

(b)

To secure methods of working and temporary works which will be reasonably safe and proper during construction, or which will ensure properly constructed permanent work, in cases where the Contractor is failing to use the same.

(c)

To vary the permanent works or temporary works or methods of working at the request of the Contractor so as to assist him in overcoming difficulties or in avoiding excessive costs during construction.

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(d)

To vary the permanent or temporary works or methods of working as a consequence of defective work or other default or breach of contract by the Contractor, where insistence upon the removal and rebuilding of the original permanent work would involve unreasonable expense or delay or might prejudice the permanent works.

(e)

To suspend or postpone work and carry out investigations when this is the reasonable consequence of defective work or any other default or breach of contract of the Contractor.

(f)

To alter or vary a previous direction.

The principal matters under the Contract in respect of which the Architect shall have power to give instructions are: -

To vary the permanent work where this is desired by the Architect or Employer or is required under clause 7(1) of the Conditions.

To vary the temporary works or methods of working where this is desired by the Architect or the Employer for any reason or is required under clause 7(1) of the Conditions and the Contractor would otherwise be entitled or obliged to use different methods of working or temporary works.

To postpone or suspend work and carry out investigations where this is not the consequence of any defective work or default or other matter for which the Contractor is responsible under the Contract but is desired for any reason by the Architect or the Employer.

To carry out work or supply goods or materials by Designated or Nominated Sub-Contractors or Suppliers which are the subject of a P.C. Sum or Item in the Specification, Bills of Quantities or other Contract Documents.

To carry out work or supply goods or materials, either by the Contractor himself or by Nominated Sub-Contractors or Suppliers, which are the subject of a Provisional or Contingency Sum or Item in the Specification, Bill of Quantities or other Contract Documents.

To alter or vary any other previous instruction.

The choice by the Architect of the expression “direction” or “instruction” when giving an order to the Contractor shall not bind either the Contractor or the Employer before an arbitrator or the Courts, save only that if after 28 days from receipt of an order expressed as a direction or of its written confirmation by or to the Architect, as the case may be, the Contractor has not disputed its classification as such in writing, or claimed extra payment or compensation for it in writing, or given notice of arbitration in regard to it, then the Contractor shall be conclusively deemed to have undertaken to comply with the direction without an increase in the Contract Sum or any additional payment or compensation. Provided that if the Contractor shall within 14 days of receipt of the direction or its written confirmation request the Architect to inform him in writing under which provision of the Contract the direction is given the Contractor’s time for reserving a claim under this sub-clause shall be extended until 14 days after the Architect has complied with the Contractor’s request.

The Architect shall at no time he under any obligation or duty to the Contractor either on behalf of the Employer or his own account to give a direction as to any matter in sub-clause (3) nor an instruction under paragraphs (a), (b), (c) or (f) of sub-clause (4) hereof, nor shall any failure to do so on his part in any way prejudice the rights of the Employer against the Contractor or render the Employer liable to the Contractor.

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1.(7)

If within 7 days after receipt of a written notice from the Architect requiring the Contractor to comply with a written direction or instruction the Contractor fails to do so, the Employer may employ other contractors to do so under the supervision of the Architect and may upon the certificate of the Architect deduct the extra cost (if any) of doing so from any monies otherwise due under the Contract or recover the same from the Contractor. Such certificate shall be called a “Certificate of Cost of Other Contractor’s Work”, and any such deduction shall be recorded by the Architect in subsequent payment certificates under clause 31 of the Conditions.

1.(8)

If the Architect shall give any direction or instruction, either in writing, or effectively confirmed in writing by or to the Architect under the provisions of this clause, which is subsequently shown to have been given in circumstances where there was either no power to do so under the terms of the Contract, or no justification in fact for the exercise of a power, and if the Contractor has duly complied therewith in accordance with sub-clause (1) of this Condition (and in an appropriate case has protected his position in relation to a direction pursuant to sub-clause (5) of this Condition) then the Contractor shall be entitled to additional payment or compensation (and in an appropriate case to an extension of time) for any damage, liability, expenditure or cost which the Contractor would not have incurred but for the said direction or instruction. Provided that no additional payment or compensation or extension of time shall be made or given under this sub-clause where the direction or instruction is the reasonable consequence, in accordance with the rules of remoteness or mitigation of damage, of any negligence or of defective work, goods or materials or of any other breach of contract by the Contractor.

2.

METHODS OF WORKING AND TEMPORARY WORKS

2.(1)

Unless expressly stipulated or described in the Specification or other Contract Documents, control over the Contractor’s site operations and the choice of methods of working and temporary works shall be the sole right and responsibility of the Contractor.

2.(2)

Provided that in those cases where the choice of and control over the methods of working or temporary works is the Contractor’s, the Architect may, without any obligation to do so and at his entire discretion, give a direction in the circumstances envisaged under clause 1(3) hereof, or an instruction in the circumstances under clause 1(4)(b), requiring the Contractor to change his methods of working or temporary works.

2.(3)

If any accident, loss, liability, claim or damage subsequently occurs as a result solely of the use of the methods of working or temporary works ordered by a direction or instruction of the Architect under sub-clauses 1(3) and (4) of these Conditions and sub-clause (2) hereof (other than orders, whether expressed as directions or instructions, given at the request of the Contractor or as a reasonable consequence of any negligence or default or breach of contract by the Contractor or the result of an insured risk under clauses 19(2)(a) and 20 of these Conditions) the Employer will indemnify and if appropriate pay compensation to the Contractor in respect of the same, provided that the accident, loss, liability, claim or damage would not have occurred if the Contractor’s preferred or previous methods of working or temporary works had been used, and provided further that the Contractor has complied with the Architect’s direction or instruction with due skill and care.

3.

DESIGN AND COMPLETION RESPONSIBILITIES

3.(1)

Except in so far as the Contract either expressly or by implication leaves any question of design, or of choice of materials or workmanship, or of performance of the Works after completion, to the Contractor, or to any Designated or Nominated sob-Contractor or Supplier, the design and/or specification of the Works will be provided on behalf of the Employer by the Architect or by consultants or other persons acting on behalf of the Architect or of the Employer, and the Contractor’s responsibility in relation to the part of the Works so designed and specified shall be limited to bringing the Works to full and satisfactory completion, and to this extent the Contractor shall be deemed to have satisfied himself as to his ability and to have undertaken so to do (subject to any

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obligation to vary the Works under clause 7 of these Conditions). The Contractor shall be under no responsibility for the design or suitability for their purpose or performance of the Works after completion to the extent that any part of the Works has been so designed and specified on behalf of the Employer, provided that he has complied in all respects with the requirements of the Contract, but shall be so responsible in respect of any part of the Works designed, specified or chosen by himself or by any Designated or Nominated Sub-Contractor or Supplier or any other Sub-Contractor or Supplier.

In so far as he may not have already done so at the time of the Contract, the Architect shall supply such further or working drawings, specifications, details, levels, instructions or other information from time to time during the construction period as may be necessary to amplify and explain in detail the work to be carried out by the Contractor. Such information shall be given, in the case of original contract work, within a reasonable time to enable the Contractor to discharge all his obligations under the Contract, regard being had in particular to

(a)

The Contractor’s programme furnished under clause 4 of these Conditions and any qualifications or reservations thereto made by the Architect.

(b)

The actual rate of progress of the Contractor.

(c)

The Contract Date for Completion as currently extended by the Architect.

(d)

Reasonable pre-planning requirements of the Contractor having regard to the nature of the work.

(e)

Advance notice or request for required information from the Contractor where this may be desirable or necessary.

In the case of variations, information in relation to varied work shall be given within a reasonable time of the issue of the relevant variation order to the Contractor.

Subject to clauses 25 and 26 of these Conditions in regard to Phased or Stage Completion and Partial Occupation, the Works shall remain until completion at the risk of the Contractor, who (subject to the receipt of any insurance monies under clause 20 of these Conditions) shall make good at his own expense and without payment any accidental or other loss or damage thereto howsoever caused (including theft or other act of third persons), save only damage (other than damage to the Works due to a risk insured under clause 20 of these Conditions) whose proximate cause is any act or neglect of the Employer or of other contractors engaged by the Employer under clause 17 of these Conditions, or due to an instruction or direction of the Architect under sub-clause 2(3) of these Conditions, for the making good of any of which the Contractor shall be entitled to additional payment or compensation on the like terms as in that sub-clause and, if appropriate, to an extension of time.

Subject to clauses 25 and 26 of these Conditions, for the purpose of this clause “completion” shall mean the completion certified by the Architect in his Completion Certificate under clause 24(5) of these Conditions or, in relation to any outstanding work notified by the Architect under the terms of that clause at the time of the Completion Certificate, the subsequent completion and acceptance of that work.

4.

PROGRAMME

Following acceptance of his tender, and without prejudice to any requirement to do so earlier in his tender or the other Contract Documents, the Contractor shall, not later than 14 days before the stipulated date for the commencement of work, submit for approval by the Architect a programme related to the contract period showing the order or sequence in which he proposes to carry out the various parts of the Works and any proposed temporary works or methods of working which may be relevant to progress. The Contractor will not be permitted to commence work until 14 days after submission of a sufficiently detailed programme, notwithstanding the passing of the

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stipulated Contract Commencement Date, and no extension of time shall be given in respect of any delay so caused.

4.(2)

Approval of the programme by the Architect shall signify his agreement with the proposed order or sequence of working in the programme, and may be taken into account in any dispute for determining a reasonable order or sequence for supplying any outstanding information or details to the Contractor, or for affording possession of the Site by the Employer, but shall not otherwise change the contractual obligations of either party in relation to the Contract Completion Date, or as to a reasonable time for giving or receiving further information, or for affording possession of the Site. In particular an optimistic programme showing completion before the Contract Completion Date shall not without express agreement to that effect with the Employer alter or advance the aforesaid obligations of the Architect and Employer, nor shall it advance the Contract Completion Date.

4.(4)

Disapproval of the programme by the Architect (provided the programme is sufficiently detailed) shall not prevent the Contractor from starting work, but may be taken into account (together with any reasons given by the Architect therefore) in determining any dispute as to a reasonable sequence or order for affording possession of the Site or for supplying further drawings or details or information.

5.

MAKE-UP OF CONTRACTOR’S PRICES

5.(1)

To facilitate the valuation of variations or measurement of the Works the Contractor, without prejudice to any express requirement in the Contract Documents to do so earlier, shall submit to the Quantity Surveyor not less than 14 days before the stipulated date for the commencement of work a breakdown of his prices in the Schedule of Rates. Such breakdown need not state the amount of the Contractor’s profit, but in the case of each rate or price (or representative groups of rates or prices) shall indicate the proportionate amounts (inclusive of profit) expressed as percentages of the total rate or price, attributable to labour, goods or materials, plant, and overheads expenditure (if any) respectively, and shall identify the type of plant, labour, materials or goods or other expenditure allowed for in sufficient overall detail for pricing purposes, drawing attention to any unusual or important items.

5.(2)

In the case of any preliminary items of expenditure in the Schedule of Rates the Contractor shall when tendering indicate by an appropriate key letter those items requiring adjustment based on the quantities of work carried out (Letter Q); those items requiring adjustment based on the time required to carry out the work (Letter T); and those items of expenditure which are of a once-for-all or fixed character and independent of quantities or time (Letter F). In the case of Preliminary or General or Contingency or Lump Sum items, the Contractor shall in addition when tendering indicate precisely all categories of expenditure contemplated by those items which are not included in his other rates and prices. Preliminary items for which the Contractor has given no key letter indication shall be deemed to be fixed.

5.(3)

The Contractor shall not be permitted to commence work until 14 days after the submission of a sufficient breakdown of prices in accordance with sub-clause (1) of this clause, notwithstanding the passing of the stipulated Contract Commencement Date, and no extension of time shall be given in respect of any delay so caused.

6.

ADMINISTRATION

6.(1)

The Contractor shall upon signing this Contract notify the Architect in writing of an address at which Notices and Architect’s certificates, directions or instructions under this Contract may be served upon him. In the event of the Contractor failing to notify the Architect of such an address, all notices under the Contract and Architect’s certificates, directions or instructions shall be deemed served upon the Contractor on the date of recorded delivery if sent by registered post to the address stated in the Articles of Contract, or, if left at his office on the Site, on that date, if a receipt is obtained from the Contractor’s Site Agent or Foreman-in-charge. Notices shall also be deemed served on the date of recorded delivery if sent by registered post or, if not, of actual delivery by hand or otherwise, to the address notified by the Contractor.

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Foreman in Charge

The Contractor shall constantly keep upon the Works a competent Site Agent or Foreman-in-charge and without prejudice to sub-clause (1) hereof, any directions or instructions given to him by the Architect shall also be deemed to have been issued to the Contractor.

Dismissal of

Persons Employed

The Architect may give directions requiring the dismissal from the Works of any person employed thereon whose continued employment by the Contractor may reasonably be regarded as prejudicial to the satisfactory and expeditious completion of the Works.

Copies of

Documents

Immediately upon the execution of this Contract the Architect without charge to the Contractor shall furnish him (unless he shall have been previously furnished) with

One copy certified on behalf of the Employer of the Articles of Contract, of these Conditions, and of the Contract Documents described in Article 6(f).

Two copies of the unpriced Schedule of Rates and (if requested by the Contractor) one copy of the priced Schedule of Rates.

Copies of Drawings,

Etc.

6.(5)

The Architect shall within a reasonable time supply to the Contractor two copies of the working drawings, specifications and information referred to in clause 3(2).

Documents on Site

The Contractor shall keep one copy of the Contract Drawings, one copy of the unpriced Schedule of Rates, one copy of the Specification, and one copy of the working drawings, specifications and information referred to in sub-clause (5) of this Condition upon the Works so as to be available to the Architect or his representative at all reasonable times.

Return of

Documents

Upon final payment under clause 31 of these Conditions, and if no further matters are outstanding between the Contractor and the Employer, the Contractor shall, if so requested by the Architect, forthwith return to the Architect all drawings, details, specifications and other documents of a like nature which bear his name, and the Architect shall return to the Contractor all copies of his make-up of prices under clause 5 of these conditions.

Restrictions on Use

None of the documents hereinbefore mentioned shall be used by the Contractor for any purpose other than this Contract and neither the Employer, the Architect nor the Quantity Surveyor shall divulge or use except for the purposes of this Contract any of the prices in the Schedule of Rates or in the Contractor’s make-up of prices.

Issue of Certificates

All certificates issued by the Architect under this Contract shall, unless otherwise expressly stated in the Contract, be issued to the Contractor, with a copy to the Employer dispatched by hand or ordinary post at the same time and date.

Nothing in this clause shall prejudice the validity of any notice or certificate if proof is furnished of its actual receipt by the party to be served or by his authorised agent.

By-Laws and

Regulations

The Contractor shall comply with and give all notices required by any instrument, rule or order made under any written law applicable or any regulation or bye-law of any Government authority or any statutory undertaker which has any jurisdiction with regard to the Works or with whose systems the same are or will be connected. The Contractor before making any variation from the Works described in the Contract Documents necessitated by such compliance shall give to the Architect a written notice specifying and giving the reasons for such variation and the Architect may issue a direction or instruction in regard thereto. If within seven days of having given the said written notice the Contractor does not receive any diction or instruction in

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regard to the matters therein specified he shall proceed with the work conforming to the written law, instrument, rule, order, regulation or bye-law in question, and any variation thereby necessitated in any part of the Works designed, specified or chosen by or on behalf of the Architect or Employer and not by the Contractor or any sub-contractor shall be deemed to be a variation ordered by a written instruction of the Architect, and if appropriate an extension of time shall be given to the Contractor. Should the Architect himself give a direction or instruction the Employer will, subject to clause 1(5) of the Conditions indemnify the Contractor against any damage, claim, loss or expenditure which would not have been incurred but for the variation, and the Architect shall if necessary grant an extension of time to the Contractor therefore, provided always that the variation relates to any part of the Works designed, specified or chosen by or on behalf of the Architect or Employer and not by the Contractor or any sub-contractor, and that the variation is not required as a consequence of any negligence, breach of contract or other default of the Contractor or of any subcontractor, direct or indirect.

7.(2)

The Contractor may in addition be compensated by the Employer for any fees, charges or other expenditure incurred by him as a result of any statutory obligations which may be identified for the purpose in that Appendix and Specification or other Contract Documents.

8.

The Architect shall determine any levels which may be required for the execution of the Works, and shall furnish to the Contractor by way of accurately dimensioned drawings such information as shall enable the Contractor to set out the Works at ground level. Any errors arising from inaccurate setting out by the Contractor shall either be amended at his own cost or, at the discretion of the Architect, may be accepted without amendment, subject to such reduction in the Contract Sum as may be reasonable having regard to any loss of value suffered by the Employer or any reduced cost to the Contractor resulting from the error, whichever shall be greater.

9.

The Architect and his representatives shall at all reasonable times have access to the Works and to the workshops or other places of the Contractor or of any sub-contractor or supplier where work is being prepared for the Contract. Where such work is to be so prepared in workshops or other places of a sub-contractor or supplier, the Contractor shall by a term in the sub-contract secure a similar right of access to those workshops or places for the Architect and his representatives, and shall take all reasonable steps required of him by the Architect to enforce or assist in enforcing such right.

10.

10.(1)

Subject to compliance with his obligations under clauses 4 and 5 of these Conditions in regard to the provision of a sufficiently detailed programme and breakdown of his prices, and subject to any extension of time properly due under the terms of the Contract, the Contractor shall commence work on the Commencement Date stated in the Appendix to these Conditions, and the Contract Period and Date for Completion therein stated shall respectively commence upon and be calculated from the said date. If no such Commencement Date is stated in the Appendix, or if the date in the Appendix becomes invalidated for any reason which is not the responsibility of the Contractor, then the Commencement Date shall be deemed to be such other date as may be expressly or implicitly agreed by the parties or be a reasonable date for the commencement of work, and the Date for Completion shall be appropriately modified or re-calculated. In such event the Architect may and shall if required by the Contractor issue a Certificate stating the revised Commencement and Completion Dates. Such Certificate is referred to in this Contract as a “Certificate of Revised Commencement Date”.

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Possession of Site

In the absence of express provision to the contrary, the Contractor shall be entitled on the Commencement Date to free and uninterrupted possession of the whole of the area of the Site as defined in the Appendix to the Conditions, whether by reference to the Specification or Drawings or otherwise. The Contractor may also be entitled to such Special Access to the Site as is stated in the Appendix to the Conditions, which the Employer will be responsible for providing. Save as aforesaid the obtaining of access to the Site will be the responsibility of the Contractor. Any arrangements for possession to be given by stages or any other restrictions upon possession of the whole of the Site shall be stated in the Appendix to these Conditions or in the Specification.

Quality of Work and

Materials

Without prejudice to the Contractor’s responsibilities under clause 3 of these Conditions, an materials, goods and workmanship comprised in the Works shall, save where otherwise expressly stated or required, be the best of their described kinds and shall in all cases be in exact conformity with any contractual description or specification and of good quality. Wherever it is practicable to do so the Contractor shall, at the request of the Architect, furnish him with any necessary supporting vouchers, evidence or information confirming that all materials and goods whether fixed or unfixed comply with the requirements of this sub-clause. Any unreasonable failure or refusal by the Contractor to furnish such vouchers, evidence or information shall entitle the Architect to give a direction for the removal of the materials or goods at the expense of the Contractor, and until replacement to deduct their value, if already paid, from the Contract Sum.

Investigation of

Defects

Without prejudice to his powers under the next following sub-clause, the Architect may issue a direction or instruction for the opening up or inspection of any work covered up, or for carrying out tests or investigations of any goods, materials or executed work, arid for the postponement of further work until the results of the tests or investigations are known. If such opening up or inspection or tests or investigations are the reasonable and prudent consequence of defective work by the Contractor or of any breach of contract or negligence or omission on his part or of any sub-contractor or supplier then in such event the Architect may give a direction and the Contractor shall comply with the same at his own expense, nor shall he be entitled to an extension of time, notwithstanding that no further defective work or breaches of contract are subsequently disclosed thereby, but in other cases the Contractor shall be entitled to an instruction and to compensation for any additional Expenditure or delay resulting from compliance with such instructions, and to an appropriate extension of time, unless and to the extent that defective work or other breaches of contract are disclosed thereby, in which event he shall not be entitled to such compensation or extension of time. For the avoidance of doubt, where it seems reasonable to do so in the light of the facts disclosed by any such opening up or inspection or tests or investigations or postponement the Architect may re-classify an earlier direction as an instruction or vice-versa.

Removal of

Defective Work or

Reduction of Price

Without prejudice to his power to vary the work under clause 1(3) of these Conditions, the Architect may give directions for the removal or demolition of any work, goods or materials, whether fixed or unfixed, which are not in accordance with the Contract, and for their reconstruction or replacement in exact accordance with the Contract. Provided that the Architect may, but shall not be bound to, accept any work containing defects unremedied and without removal or replacement, in which event the Contract Sum shall be reduced by any loss of value or otherwise suffered by the Employer, or by any saving in cost obtained by the Contractor in carrying out the defective work, whichever is greater.

Variations Due to

Defective Work

Alternatively, where the requirements of clause 1(3)(d) are satisfied, and without prejudice to his powers under sub-clause (3) hereof, the Architect may, but shall not be obliged to, give directions for a variation of the Works in lieu of their removal or demolition and reconstruction under sub-clause (3) hereof.

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11.(5)

No failure by the Architect to exercise any of the foregoing powers in this clause shall prejudice any subsequent claim by the Employer against the Contractor at any time in respect of work which is not in accordance with the Contract, nor shall the Architect be under any duty to the Contractor to exercise any of the foregoing powers for the benefit of or to assist the Contractor.

12.

12.(1)

In conformity with clauses 1(3) or 1(4) of these Conditions the Architect shall have power at any time to give directions or instructions, as the case may be, requiring a variation to be made in the original Contract work. The Architect shall also have power at any time subsequently to sanction by way of direction a variation previously carried out by the Contractor without any authority, direction or instruction from the Architect. Such subsequent sanction shall not entitle the Contractor to additional payment or compensation or an extension of time, unless such variation was due to negligence or omission or default on the part of the Architect or the Employer or was reasonably carried out in an emergency when it was not practicable to obtain the prior instructions of the Architect, but shall relieve the Contractor from liability to the Employer for departing from the contract requirements without authority, and may involve a reduction in the Contract Sum if any reduced value to the Employer or reduced cost to the Contractor, whichever is greater, is involved in the sanctioned variation.

Subsequent
Sanction

12.(2)

The term “variation” in these Conditions shall mean any change in the original contract descriptions to be deduced from the Contract Documents as a whole describing or defining the Works to be carried out, and in particular shall include: -

The addition of further work, materials or goods.

The omission of work, materials or goods.

The demolition of or removal of work, materials or goods no longer desired by the Employer or the Architect.

The substitution of different work, materials or goods.

Changes in the type, standard or quality of work, materials or goods.

Changes in the plans, elevations, layout, or dimensions of the Works.

Changes ordered in the Contractor’s temporary works or methods of working under clauses 1(3),1(4) and 2(2) of these Conditions.

Changes or additions or omissions ordered in the work, goods or materials of any Designated or Nominated Sub-Contractor or Supplier.

The postponement of any part of the Works, desired by the Employer.

For the avoidance of doubt the term “variation” shall include any changes as aforesaid which may be designed to alter the ultimate use to which the Works will be put.

12.(3)

All variations required by the Architect or subsequently sanctioned by him shall be valued by measurement or calculation by the Quantity Surveyor who, where physical measurement is necessary and subsequent measurement will not be practical due to covering-up or for any other reason, shall give the Contractor an opportunity of being present at the time of such physical measurement and of taking such notes or measurements as the Contractor may require, and who shall following such Measurements make appropriate recommendations to the Architect with a view to subsequent certification by the Architect. Should the Contractor or his representative fail to be present at such time after receipt of reasonable written notice from the Quantity Surveyor, the quantities measured by the Quantity Surveyor, provided they have been communicated in writing to the Contractor by ordinary post within 14 days, shall be final and binding as between the Employer and the Contractor. In cases where the Contractor or his representative has been

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present, any such quantities communicated in writing at any time by the Quantity Surveyor to the Contractor shall be similarly binding unless the Contractor within 1 month of receipt of the same shall send details with sufficient explanations of any differences in the quantities claimed by him to the Quantity Surveyor or to the Architect.

Valuation of

Variations            

Variations shall be valued as closely as possible on the basis of the Contractor’s prices without regard to any alleged element of high or low profitability in those prices and in accordance with the following rules: -

Work ordered in quantities or at times and locations which can be readily absorbed into the Contractor’s programme on the same basis of commercial profitability as the original contract work shall be valued at the same prices as those in the Schedule of Rates, but the prices for any preliminary items of expenditure may also be adjusted where necessary in the light of quantities or time using as guidance where it is reasonable to do so the Contractor’s Make-up of Prices under clause 5 of these Conditions.

Work ordered as aforesaid but for which there is no exactly equivalent item in the Schedule of Rates, shall wherever possible be valued at comparable prices extrapolated from prices for similar though not identical work in Bills, if such exists. and using whatever it is reasonable to do so for such purpose the Contractor’s Make-up of Prices under clause 5 of these Conditions. Preliminary items may also be adjusted in the same manner as in paragraph (a).

Work for which the same or comparable prices as aforesaid are available in or can be extrapolated from the Schedule of Rates, but which by reason of material increases or decreases in quantity, or its sequence of ordering or location, or postponement, or any resultant dislocation or other special physical or technical circumstance, will differ in cost or commercial profitability or working methods from the original work priced by the Contractor, shall whatever possible be valued at the same or comparable prices in accordance with paragraphs (a) and (b) hereof, but with allowances made by way of addition to or deduction from those prices to take account of any such factors and any consequential increase or decrease in cost or commercial profitability to the Contractor. For the avoidance of doubt, such valuation shall not take account of any increase or decrease in the level of building costs unless the variation is carried out at a time different from that reasonably contemplated by the Contractor when pricing his tender or submitting his programme under clause 5 of the Conditions, and the increase or decrease is not otherwise recoverable under any fluctuation clause.

Where the calculation of allowances under paragraph (c) hereof is not practicable the Quantity Surveyor shall make a fair valuation based upon the Contractor’s overall level of contract prices and profitability and without adjustment for any alleged element of high or low profitability in those prices or (save as aforesaid in paragraph (c) hereto) of subsequent changes in building costs.

If, and only if, work cannot be valued on any of the foregoing bases in paragraphs (a) to (d) hereof, the Contractor shall be allowed daywork rates or the prices prevailing when such work is carried out (unless otherwise provided in the Contract Documents):

(i)     At the rates, if any, inserted for this purpose by the Contractor in the Schedule of Rates or in any other Contract Document; or

(ii)    When no such rates have been inserted, at the, actual prime cost to the Contractor of his material, transport and labour for the work concerned, plus 15%, which percentage shall include for the use of all ordinary plant, tools and existing scaffolding, and for preliminaries, supervision, overheads and profit.

Provided that as a condition precedent to payment in either case under this paragraph vouchers specifying the time daily spent upon the work (and, if required by the Architect, the workmen’s names) and any plant, equipment or materials employed shall be delivered for verification to the Architect or his authorised representative not later than the end of the week following that in which the work has been executed.

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For the avoidance of doubt, in the case of omitted work (including work under P.C. or Provisional Sum items, but not contingency items) an allowance for the increased cost or reduced profitability (if any) of the remaining work may similarly be made as in paragraph (c) hereof against the prices for the remaining work, but not for loss of profit on the omitted work itself.

(g)

In the case of an obvious accidental error in the rates or prices quoted by the Contractor resulting in a grossly excessive or inadequate rate or price, the Quantity Surveyor may apply a reasonable rate or price in line with the Contractor’s general level of rates or prices, but only to any difference between the original contract quantities and the actual quantities.

The value of all variations ascertained in accordance with the foregoing rules shall be added to or deducted from the Contract Sum and shall be payable to the Contractor on interim certificates in accordance with clause 31 of these Conditions provided: -

That the variation has been ordered in writing by the Architect or confirmed in writing by or to the Architect in accordance with the requirements of clause 1(1) of the Conditions, and that in the case of a written direction the Contractor has protected his position pursuant to clause 1(5) of the Conditions.

That in the case of variations ordered in the circumstances envisaged in clause 1(3) of these Conditions or subsequently sanctioned by the Architect under sub-clause (1) of this Condition, the Contractor shall not be entitled to any additional payment beyond the original Contract Sum or prices for the unvaried work.

That in the case variations ordered in the Contractor’s temporary works or methods of working the Contractor shall not be entitled to any additional payment unless the requirements for additional payment in clauses 1(4)(b) and 2(2) of these Conditions have been satisfied.

That no additional payment beyond the original Contract Sum shall be made for any variation which is the reasonable consequence of defective work or other breach of contract by the Contractor or which is made without the prior authority of the Architect.

That in valuing any variation under paragraphs (b), (c) or (d) hereof, in those cases where the Contractor is not entitled to additional payment beyond the original Contract Sum allowance shall also be made for any loss of value to the Employer of the completed varied work or any reduction or saving in cost obtained by the Contractor in carrying out the varied work resulting from the variations, whichever shall be greater.

For the avoidance of doubt, where additional payment or compensation is due to the Contractor for compliance with an Architect’s Instruction in accordance with clauses 1 (4)(b), 1(4)(c), 1(8), 2(2), 12(4)(c) or any other clause of these Conditions, such payment or compensation shall, subject to clause 12(4)(c) in the case of dayworks payments, be equivalent to the increase (if any) in the cost, or the decrease (if any) in the profitability, of the contract work resulting from compliance with the instruction. Loss of profit on omitted work or on other business or contracts by reason of prolongation of the contract period shall be recoverable only in accordance with the general law where the Employer is in breach of contract, or in cases where under the terms of this Contract the Employer gives an indemnity to the Contractor, and shall not be subject to certification by the Architect.

In conformity with Articles 5 of the Articles of Contract the original Contract Sum, and in respect of varied work the prices in the Schedule of Rates, shall (subject to any express provisions for adjustments of the Contract Sum) be treated as inclusive of all work, materials and expenditure, whether permanent or temporary, which will be either indispensably necessary in any event to complete the works as described in or to be inferred from Drawings, Specifications, Schedule of Rates or other Contract

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Documents taken as a whole, or which may contingently become necessary to overcome difficulties and bring the said works so described a Bill or inferred to satisfactory completion.

Any document entitled a Bill of Quantities is to be used only for the guidance of contractors when tendering, and shall be of no contractual effect, except insofar as such document may, pursuant to Article 2(b) hereof, constitute the Schedule of Rates for valuing variations under clause 12(4) of the Conditions, or for any other purposes of this contract. No warranty is given as to the accuracy of any quantities or descriptions in any such document, nor may any claim be made either in contract or in tort based upon any difference between those quantities or descriptions and the final as-built work, except insofar as they may be due to variations ordered an behalf of the Employer, or constitute a discrepancy or divergence pursuant to clause 14 of the Conditions.

Should any discrepancy or divergence be discovered in or between any of the Contract Documents as to the precise extent or nature of the work to be carried out by the Contractor he shall immediately give notice in writing of the same to the Architect so that a direction or instruction may be given as to the work in fact required by the Architect. In cases where the contract intention is capable of being resolved by interpretation of the documents as a whole, the Architect shall (and, in cases where no notice has been received, may) give a direction if his requirement accords with that intention, and an instruction if it differs from that intention, as the case may he, in which latter event the instruction shall be given under clause 12 of the Conditions and the Contract Sum shall be increased or decreased pursuant to the valuation provisions of that clause. If the discrepancy results in a total ambiguity which cannot be resolved, the Contract shall not be avoided but the Architect shall give an instruction and the Contract Sum shall either be appropriately increased, if the Contractor has as a fact been reasonably misled to his detriment when pricing the Contract, or reduced, if he has as a fact been misled to his advantage, and if necessary an appropriate extension of time shall also be granted to the Contractor.

Assignment by

Contractor

The Contractor’s performance by himself and his servants of a main contractor’s principal functions of controlling the Site with his own site staff, coordinating the work of any sub-contractors, and ordering of materials for the Works, is of the essence of the Contract, and the Contractor shall neither assign nor make arrangements for the vicarious performance of such functions by any other person, now shall any receiver, judicial manager or liquidator of the Contractor be entitled to carry out such functions without the consent of the Employer. In addition the Contractor shall not assign the right to receive monies due under the Contract, or any part thereof, to any person without the prior consent of the Employer, and no such assignment without consent, whether voluntary, involuntary, or statutory, shall bind the Employer.

Sub-Contractors

Except where expressly provided by the Contract the Contractor shall not engage or permit the engagement of any sub-contractor for any part of the Works without the prior written consent of the Architect, which consent shall not be withheld if the proposed sub-contractor is of a class and standing usual and appropriate to the type and extent of the work to be sub-contracted. Any sub-contractor, direct or indirect, properly objected to by the Architect under this clause shall not be permitted to enter the Site, or shall be expelled therefrom forthwith on the direction of the Architect as the case may be.

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15.(3)

Save as expressly provided in this Contract and the Contractor shall make good any damage or loss suffered by the Employer by reason of any breach of contract, repudiation, default or failure, whether total or partial, on the part of any sub-contractor or supplier, whether Designated or Nominated on behalf of the Employer under the provisions of clause 28 of the Conditions or privately engaged by the Contractor, and shall indemnify the Employer against any damage, liability, claim or loss arising therefrom.