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Lecturer:
Ir. Dr. Rosli Mohamad Zin
JKR 203A
STANDARD FORM OF CONTRACT Conditions Of Contract (56 Clauses)
Define the following word terms Contract, Contractor, Contract Sum, S.O, S.O Representatives, Site, approved, directed, Work.
4. Scope of Contract
Obligation of the contractor to carry out and complete the Works in accordance with the Contract Documents. The contractor is obligated to provide materials, goods and standards of workmanship of the quality and standards.
Contractor to make good any defect, imperfection, shrinkage or other fault which may appear during Defect Liability Period in accordance with Clause 45.
5. S.Os Instructions
a) S.O. may in his absolute discretion and from time to time issue further drawings, details, and/or written instructions.
b) Contractor shall (subject to sub-clause (c) hereof) forthwith comply with all instructions issued to him by the S.O. within seven (7) days after receipt of a written notice from the S.O.
6. Notices
Contractor shall notify the S.O. an address where written notices and instructions of the S.O. under this Contract may be served upon him and shall inform the S.O. of any change of address.
7. Contract Documents
a) The Contract Documents as aforesaid shall remain in the custody of the S.O. and shall be produced as and when required by the Contractor.
b) Copies of Contract Documents - one certified true copy of the Contract Documents - two copies of the Contract Drawings - two copies of the unpriced Bills of Quantities
a) Compliance with written law, regulations and bye-laws The Contractor shall give all notices and pay all fees and charges required under any written law, regulations and byelaws in relation to the execution of works or any temporary works.
All fossils, coins, articles of value or antiquities and structures, other remains or things of geological or archaeological discovered on the site of works shall be deemed to be absolute property of the Government.
The Contractor shall take the reasonable precautions to prevent his workmen or any other persons from removing or damaging any such articles or things.
The Contractor shall immediately informs S.O. or S.O. Representative of such discovery and carry out the removal of such articles or things at the expense of the Government.
The Contractor shall save harmless and indemnify the Government from all claims and proceedings or on account of infringement of any patent rights, design, trademark or name or other protected rights in respect of any plant, machine work or material used in connection with works or any of them.
Except where other specified, the Contractor shall pay all tonnage and other royalties, rent, fees and other payments for getting stone, sand, gravel, clay or other materials required for the works.
The S.O. shall provide information such as levels, boundary stone, and any other points of reference which may be required for the execution of the works for Contractor to set out works at ground level.
The Contractor shall take the responsible and shall entirely at his own cost amend any errors arising from his own inaccurate setting out.
The Contractor shall be deemed to have inspected and examined the site and its surrounding areas and have to satisfy himself before submitting his tender as to the nature of the ground and subsoil, the form and nature of the site, the extent and nature of the work, necessary materials and goods for the completion of the works, communication and access to the site, accommodation, all necessary information as to risks contingencies and all circumstance influencing and affecting his tender.
Any information or document given or forwarded by the Government to the Contractor shall not relieve the Contractor of his obligations under the provisions of the clause.
The Contractor shall make use of and interpret those information at his own risk.
The contractor can only employ nonMalaysian citizens if he can satisfy the S.O. and can prove that Malaysian citizens are not available for some particular trades or skills that required to complete the works.
Employment of non-Malaysian citizens is still subject to the approval of the Ministry of Labour and Manpower.
The ratio of Malaysian citizens who shall be employed by the Contractor in the execution of the contract shall reflect the racial ratio of the citizens of the country as prescribed by the Government from time to time.
The Contractor shall furnish all particulars in respect of labour employed by him to the Department of Labour on the commencement of the works in accordance with the requirements of the Employment Ordinance 1955, employment (Restriction) Act 1968, and Internal Security (Registration of Labour) Regulation 1960 or any subsequent modification or re-enactment.
All workmen employed in connection with the works shall be employed from the district where the works are situated. Employment of workmen from other districts only can be done if such workmen are not available in the said district. The Contractor shall immediately arrange with the Local Labour Office, District Officer to effect such employment after receipt of acceptance of tender.
The Contractor shall employ the Works trainees provided by the Manpower Department, Ministry of Labour and Manpower for the purpose of providing site training to the workers if required by the Government.
f) Compliance by sub-contractors.
The Contractor shall cause his subcontractors (including labour-only subcontractors) and nominated subcontractors to comply the provisions of this condition.
The Contractor shall comply and shall cause his sub-contractors (including labour-only sub-contractors) and nominated subcontractors to comply with all the requirements of the Employment Ordinance 1955, Employment (Restriction) Act 1968, Employees Provident Fund Ordinance 1951, the Industrial Relations Act 1967 and any other law relating to the employment of workmen in the employment of workmen for the execution of the contract.
The Contractor shall not be entitled to any claim for additional costs and payments in respect of his compliance with this condition.
No work shall be done without the written permission of the S.O. on: The weekly day of rest, Any public holiday which is recognized in the district where the contract is being carried out, Between 6 p.m. to 6 a.m. in the following morning.
The Contractor shall comply fully with all the requirements of the Employment Ordinance 1955 or any subsequent modification or reenactment when such written application is approved by the S.O.
The Contractor shall keep constantly a competent general foreman and assistants who capable of receiving instructions in Bahasa Malaysia or English in each trade on the site. Such foreman shall be deemed as a site agent of the Contractor and any directions, explanations or instructions given to such foreman by the S.O. shall be deemed to have been given to the Contractor under the contract.
The Contractor shall keep and shall cause his sub-contractors (including labour-only subcontractors) and nominated sub-contractors to keep proper wages books and time sheets showing wages paid to and the time worked by all workmen employed by him and his subcontractor, on demand for inspection by any persons authorized by the S.O. and for the performance of the contract.
Failure from the contractor or his sub-contractor and Nominated subcontractor to: pay the wages of the workmen contribution to the EPF for the workmen claims filed against the contractor in Department of Labour
The S.O. after viewing the evidence can make ready the payment by deducting any payment towards the contractor at any time during the contract period.
The contractor is responsible for employing his technical and non technical workforce who are both efficient and good in character. If the S.O. finds that the behaviour of person (s) employed misconducts or caused delays or incompetent, he is empowered to instruct in writing the removal of such employees
Without delaying, a replacement would be found with the approval of the S.O. The contractor will not be entitled for any expenses claims incurred in this clause.
The contractor has to grant the S.O. and the representatives access at reasonable times to:
Works Site Workshops Other places of the contractor where work is done for the contract
The contractor has to do the same for the places of works undertaken by the subcontractors and the nominated sub-contractors
24. Variation
a) The S.O. is empowered to issue change orders which has to be confirmed in writing. These changes would not weaken the contract. b) Variation is defined as:
Alteration or modification of the design, quality or quantity of works shown in the drawings, BQ and specifications. Addition, omission or substitution of works Alteration or removal in the kind or standard or any materials or goods to be used in the works for the contract.
an allowance would be made to the contractor to enable him quote day-work price with 15% mark-up which includes the costs for ordinary plants, tool, scaffolding, supervision and profit.
The contractor is to furnish the S.O. with vouchers, receipts and wage books specifying the time, for labour and plant and materials used in not more than 7 days after executing the work.
e) S.O. is responsible to give prior notice to the contractor to attend or send a qualified agent to assist the S.O. or the representative to undertake the measurement. Failure on the contractor to attend or send a qualified agent would deem whatever measurement taken by the S.O. to be the correct measurement of work.
f) In respect of variation, the amount to be allowed shall be added or deducted from the contract sum appropriately.
Any adjustment, error or omission should be rectified prior to signing of the contract and the corrected amount should reflect the amount in the Form of Tender.
b) The of sub-letting of the subcontractor under sub-contract shall be determined immediately upon the determination of the contractors employment under the contract.
d)
The contractor cannot assign the entire contract or part of it in favour of the contractors banker, financial institution or corporation without prior consent from the government.
The sum due to the contractor shall be in the form of profit or attendance as quoted by the contractor in the BQ.
If the amount in the provisional sum is not used entirely or partly, the amount not used is deducted from the contract sum. The valuation of the works in the provisional sum shall be subjected to re-measurement upon completion.
c)
If the S.O. decides to treat the works or materials in the provisional sum as prime cost sum, then the item would be dealt accordingly as the prime cost sum items.
d)
If the contractor desire to carry out works under the prime cost sum and the S.O. is prepared to accept tenders from the contractor for the works, the contractor may do so without prejudice to governments right to reject the lowest tender
If the contractor s tender is accepted, the contractor would not be entitled to the profit and attendance charges as contained in the BQ.
Contractor must allow and permit the tradesmen that may engaged by Government to execute the works that not forming part of the contract. i.e. to allow work to be carried out by others e.g. tenaga, telekom
32. Indemnities to Government in Respect of Personal Injuries and Damage to Property (cont.)
b) Contractor is liable and shall indemnify the Government for any damage, expense, liability, loss, claim or other proceedings due to damage of any property in the execution of the Works, and also due to any negligence, omission, breach of Contract, including default of Contractor responsibilities.
32. Indemnities to Government in Respect of Personal Injuries and Damage to Property (cont.)
c) For any negligence or omission by Government or S.O. in failing to supervise Contractors site operation, the indemnities given by the Contractor under sub-clauses (a) and (b) should not be reduced.
That the obligations of the contractor to effect and maintain insurances is additional to and does not effect the indemnity given by the contractor to the government under clause 32
The insurances must be effected before the commencement of any work under the contract
c) If any default in renewing such insurance by Contractor, the Government or S.O. may renew the insurance as aforesaid and may deduct the amount paid due to Contractor in respect of premiums paid.
b)
No work shall be commenced unless the Performance Bond and insurance policies have been deposited with the Government or the S.O. Possession of the Site as complete shall be given on or before the date for Possession stated in the Letter of Acceptance
S.O. Shall give written notice to the Contractor of the causes of delay if possession of Site is delayed beyond three months from Date from Possession. Contractor may notice S.O. within fourteen days to agree proceed with the works or determine his own employment.
f)
Contractor shall render all necessary assistance and facilities required by representative of Government to carries out investigation to accident or failure in connection with the Works.
PRACTICAL COMPLETION BASED ON THE OPINION OF THE SO i.e. work has reached completion, only very minor work left (ready to be used)
Under this clause, contractor should be responsible for failure to complete work on time, as stated in the Appendix or extended time under Clause 43.
Damages known as Liquidated and Ascertained Damages (LAD) with issuing of Certificate of Non-Completion.
This clause is invoked when there is separate dates for completion and rates for LAD
SO issues separate Certificate of Practical Completion, Delay and Extension of Time, LAD for delay, and Defect Liability Periods. Apply mutatis mutandis in absence of any express provision in Contract Document i.e. each phases is treated as a separate contract
Stated that governnment can take possession on part of works done with consent of Contractor under conditions:
a) S.O. shall issue Certificate of Partial Occupation within 7 days from date of possession. b) Relevant part shall reached practical completion (for purpose of Clauses 39 & 45). c) Contractor shall repair relevant part before end of Defects Liability Period.
Extension of time permitted with written notice of causes of delay by Contractor to S.O. Causes of delay
a) b) c) d) e) By force majeure By exceptionally inclement weather By direction of S.O. By loss or damage, referred to Clause 36 By S.O.s instruction under Clause 5.
Under this clause, Contractor can claim loss or expense by giving notice to S.O. within 1 month of the occurrence of the event, as referred to work affected by reason stated in clause 43 (c), (f) or (i).
d) Deduction from sum to be paid to Contractor if existence of defects impracticable or inconvenient to Government to have remedy. e) After Contractor has made good of defects, with approval by S.O., Contractor shall be issued Certificate of Completion of Making Good Detects.
Contractor and Government shall remain liable for the fulfillments of any obligation incurred.
This provision normally applies to any outstanding yet to be completed on practical completion
d)
S.O. Must make sure contractors employee received all wages before making payment under Final Certificate.
S.O.s certificate shall not be considered as conclusive evidence to the sufficiency of work, materials or goods.
i.e. all certificates can be opened up, reviewed, and revised by the arbitrator or court in the event dispute arises
The Government or The S.O. entitled to deduct money owing by the Contractor to The Government from the sum due and payable to the contractor.
(II)
If the Contractor employment is determined under sub-clause (a) or (b), contractor shall stop all operation on site, remove all his personnel, plant, tools, equipment and goods from site. The Government may complete the Works departmentally or employ other contractor.
(IV)
The Contractor is obliged if required by SO to assign to the Government without payment the benefit of any contracts (execution of work or supply of good). The Contractor when instructed is required to remove from the site any temporary buildings, plants, tools, equipment goods and materials belonging to or hired by him. The Government has the power to sell those items if the Contractor fails to fulfill instruction.
(VI)
The Government may claim any direct loss and/or damage the Government has suffered as a result of the determination which include the additional completion cost, lost of use, expenses incurred due to delay in completion If the Government completes the works departmentally, costs of supervision, interest, plant and equipment, depreciation, overhead charges and profit are included for calculating the completion costs
When war or earthquake arises during Contract, the continuance, suspension or termination of contract shall be settled by agreement between Government and Contractor, or settled by Arbitration.
The amount payable to the Contractor shall be increased or decreased in accordance with the formulae in the Special Provisions to the Conditions of Contract.
54. Arbitration
a) Dispute or difference arise between the Government and the Contractor shall be referred to the S.O. for decision.
b) The S.O.s decision must be in writing. c) Dispute or difference referred to arbitration within forty-five days if the S.O. fails to give decision or the Contractor dissatisfied with S.O. decision.
g) The Government and the Contractor shall appoint another person to act as the Arbitrator if the original Arbitrator is dead or unwillingness or inability to act. h) Reference shall be reference to arbitration within the Arbitration Act 1952.
The text in Bahasa Malaysia shall prevail if any inconsistency occurs in any texts.