Newer Post Older Post Home. Subscribe to: Post Comments Atom. Seera Yakkaa Mootummaa-- Kitaaba Lammaffaa. Featured Post Aviation Insurance Major commercial airlines own fleets of expensive jets, and the liability exposure is enormous. Transport of Where under any law or regulation the haulier of such materials or Plant is required to indemnify the road authority against damage the Employer shall not be liable for any costs, charges or expenses in respect thereof or in relation thereto.
In other cases the Employer shall negotiate the settlement of and pay all sums due in respect of such claim and shall indemnify the Contractor in respect thereof and in respect of all claims, proceedings, damages, costs, charges and expenses in relation thereto. Provided that if and so far as any such claim or part thereof is, in the opinion of the Engineer, due to any failure on the part of the Contractor to observe and perform his obligations under Sub-Clause Provided also that the Employer shall notify the Contractor whenever a settlement is to be negotiated and, where any amount may be due from the Contractor, the Employer shall consult with the Contractor before such settlement is agreed.
Waterborne Opportunities Facilities for Labour Contractor to Clearance of Site Engagement of Returns of Labour Materials, Plant and Workmanship Quality of The Contractor shall provide such assistance.
Cost of Samples Cost of Tests Inspection of Inspection and If materials or Plant are being manufactured, fabricated or prepared in workshops or places other than those of the Contractor, the Contractor shall obtain permission for the Engineer to carry out such inspection and testing in those workshops or places. Such inspection or testing shall not release the Contractor from any obligation under the Contract. Dates for The And Testing Engineer shall give the Contractor not less than 24 hours notice of his intention to carry out the inspection or to attend the tests.
If the Engineer, or his duly authorised representative, does not attend on the date agreed, the Contractor may, unless otherwise instructed by the Engineer, proceed with the tests, which shall be deemed to have been made in the presence of the Engineer. The Contractor shall forthwith forward to the Engineer duly certified copies of the test readings. If the Engineer has not attended the tests, he shall accept the said readings as accurate.
Rejection The notice shall state the Engineer's objections with reasons. The Contractor shall then promptly make good the defect or ensure that rejected materials or Plant comply with the Contract.
If the Engineer so requests, the tests of rejected materials or Plant shall be made or repeated under the same terms and conditions. All costs incurred by the Employer by the repetition of the tests shall, after due consultation with the Employer and the Contractor, be determined by the Engineer and shall be recoverable from the Contractor by the Employer and may be deducted from any monies due or to become due to the Contractor and the Engineer shall notify the Contractor accordingly, with a copy to the Employer.
Any such delegation shall be effected in accordance with Sub-Clause 2. Notice of such appointment not being less than 14 days shall be given by the Engineer to the Contractor. Examination of The Contractor shall give notice to the Engineer whenever any such part of the Works or foundations is or are ready or about to be ready for examination and the Engineer shall, without unreasonable delay, unless he considers it unnecessary and advises the Contractor accordingly, attend for the purpose of examining and measuring such part of the Works or of examining such foundations.
Uncovering If any such part has been covered up or put out of view after compliance with the requirement of Sub-Clause In any other case all costs shall be borne by the Contractor. Removal of Default of Suspension Suspension Suspension If, within the said time, such permission is not granted, the Contractor may, but is not bound to, elect to treat the suspension, where it affects part only of the Works, as an omission of such part under Clause 51 by giving a further notice to the Engineer to that effect, or, where it affects the whole of the Works, treat the suspension as an event of default by the Employer and terminate his employment under the Contract in accordance with the provisions of Sub-Clause Commencement and Delays Commencement Thereafter, the Contractor shall proceed with the Works with due expedition and without delay.
Possession of The Employer will, from time to time as the Works proceed, give to the Contractor possession of such further portions of the Site as may be required to enable the Contractor to proceed with the execution of the Works with due dispatch in accordance with such programme or proposals, as the case may be.
Rights of Way The Contractor shall also provide at his own cost any additional facilities outside the Site required by him for the purposes of the Works. Time for Extension of Time Contractor Interim On receipt of such interim particulars, the Engineer shall, without undue delay, make an interim determination of extension of time and, on receipt of the final particulars, the Engineer shall review all the circumstances and shall determine an overall extension of time in regard to the event.
In both such cases the Engineer shall make his determination after due consultation with the Employer and the Contractor and shall notify the Contractor of the determination, with a copy to the Employer.
No final review shall result in a decrease of any extension of time already determined by the Engineer. Provided that the provisions of this Clause shall not be applicable in the case of any work which it is customary to carry out by multiple shifts. Rate of Progress The Contractor shall not be entitled to any additional payment for taking such steps. If, as a result of any notice given by the Engineer under this Clause, the Contractor considers that it is necessary to do any work at night or on locally recognised days of rest, he shall be entitled to seek the consent of the Engineer so to do.
Provided that if any steps, taken by the Contractor in meeting his obligations under this Clause, involve the Employer in additional supervision costs, such costs shall, after due consultation with the Employer and the Contractor, be determined by the Engineer and shall be recoverable from the Contractor by the Employer, and may be deducted by the Employer from any monies due or to become due to the Contractor and the Engineer shall notify the Contractor accordingly, with a copy to the Employer.
Liquidated The Employer may, without prejudice to any other method of recovery, deduct the amount of such damages from any monies due or to become due to the Contractor. The payment or deduction of such damages shall not relieve the Contractor from his obligation to complete the Works, or from any other of his obligations and liabilities under the Contract.
Reduction of The provisions of this Sub-Clause shall only apply to the rate of liquidated damages and shall not affect the limit thereof. Such notice and undertaking shall be deemed to be a request by the Contractor for the Engineer to issue a Taking-Over Certificate in respect of the Works. The Engineer shall, within 21 days of the date of delivery of such notice, either issue to the Contractor, with a copy to the Employer, a Taking-Over Certificate, stating the date on which, in his opinion, the Works were substantially completed in accordance with the Contract, or give instructions in writing to the Contractor specifying all the work which, in the Engineer's opinion, is required to be done by the Contractor before the issue of such Certificate.
The Engineer shall also notify the Contractor of any defects in the Works affecting substantial completion that may appear after such instructions and before completion of -Over Certificate within 21 days of completion, to the satisfaction of the Engineer, of the Works so specified and remedying any defects so notified.
Taking Over of Substantial Surfaces Defects Liability Defects Liability Cost of If, in the opinion of the Engineer, such necessity is due to any other cause, he shall determine an addition to the Contract Price in accordance with Clause 52 and shall notify the Contractor accordingly, with a copy to the Employer.
Unless such defect, shrinkage or other fault is one for which the Contractor is liable under the Contract, the Engineer shall, after due consultation with the Employer and the Contractor, determine the amount in respect of the costs of such search incurred by the Contractor, which shall be added to the Contract Price and shall notify the Contractor accordingly, with a copy to the Employer.
If such defect, shrinkage or other fault is one for which the Contractor is liable, the cost of the work carried out in searching as aforesaid shall be borne by the Contractor and he shall in such case remedy such defect, shrinkage or other fault at his own cost in accordance with the provisions of Clause Alterations, Additions and Omissions Variations No such variation shall in any way vitiate or invalidate the Contract, but the effect, if any, of all such variations shall be valued in accordance with Clause Provided that where the issue of an instruction to vary the Works is necessitated by some default of or breach of contract by the Contractor or for which he is responsible, any additional cost attributable to such default shall be borne by the Contractor.
Instructions for Provided that no instruction shall be required for increase or decrease in the quantity of any work where such increase or decrease is not the result of an instruction given under this Clause, but is the result of the quantities exceeding or being less than those stated in the Bill of Quantities. Valuation of If the Contract does not contain any rates or prices applicable to the varied work, the rates and prices in the Contract shall be used as the basis for valuation so far as may be reasonable, failing which, after due consultation by the Engineer with the Employer and the Contractor, suitable rates or prices shall be agreed upon between the Engineer and the Contractor.
In the event of disagreement the Engineer shall fix such rates or prices as are, in his opinion, appropriate and shall notify the Contractor accordingly, with a copy to the Employer. Until such time as rates or prices are agreed or fixed, the Engineer shall determine provisional rates or prices to enable on-account payments to be included in certificates issued in accordance with Clause Power In the event of disagreement the Engineer shall fix such other rate or price as is, in his opinion, appropriate and shall notify the Contractor accordingly, with a copy to the Employer.
Provided also that no varied work instructed to be done by the Engineer pursuant to Clause 51 shall be valued under Sub-Clause The Engineer shall notify the Contractor of any determination made under this Sub-Clause, with a copy to the Employer.
Such sum shall be based only on the amount by which such additions or deductions shall be in excess of 15 per cent of the Effective Contract Price. Daywork The Contractor shall then be paid for such varied work under the terms set out in the daywork schedule included in the Contract and at the rates and prices affixed thereto by him in the Tender.
The Contractor shall furnish to the Engineer such receipts or other vouchers as may be necessary to prove the amounts paid and, before ordering materials, shall submit to the Engineer quotations for the same for his approval. In respect of such of the Works executed on a daywork basis, the Contractor shall, during the continuance of such work, deliver each day to the Engineer an exact list in duplicate of the names, occupation and time of all workmen employed on such work and a statement, also in duplicate, showing the description and quantity of all materials and Contractor's Equipment used thereon or therefor other than Contractor's Equipment which is included in the percentage addition in accordance with such daywork schedule.
One copy of each list and statement will, if correct, or when agreed, be signed by the Engineer and returned to the Contractor. At the end of each month the Contractor shall deliver to the Engineer a priced statement of the labour, materials and Contractor's Equipment, except as aforesaid, used and the Contractor shall not be entitled to any payment unless such lists and statements have been fully and punctually rendered. Provided always that if the Engineer considers that for any reason the sending of such lists or statements by the Contractor, in accordance with the foregoing provision, was impracticable he shall nevertheless be entitled to authorise payment for such work, either as daywork, on being satisfied as to the time employed and the labour, materials and Contractor's Equipment used on such work, or at such value therefor as shall, in his opinion, be fair and reasonable.
Procedure for Claims Notice of Claims Contemporary Without necessarily admitting the Employer's liability, the Engineer shall, on receipt of a notice under Sub-Clause The Contractor shall permit the Engineer to inspect all records kept pursuant to this Sub-Clause and shall supply him with copies thereof as and when the Engineer so instructs. Substantiation Where the event giving rise to the claim has a continuing effect, such account shall be considered to be an interim account and the Contractor shall, at such intervals as the Engineer may reasonably require, send further interim accounts giving the accumulated amount of the claim and any further grounds upon which it is based.
In cases where interim accounts are sent to the Engineer, the Contractor shall send a final account within 28 days of the end of the effects resulting from the event. The Contractor shall, if required by the Engineer so to do, copy to the Employer all accounts sent to the Engineer pursuant to this Sub-Clause. Failure to Comply Payment of Claims If such particulars are insufficient to substantiate the whole of the claim, the Contractor shall be entitled to payment in respect of such part of the claim as such particulars may substantiate to the satisfaction of the Engineer.
Employer not Customs Re-export of Costs for the Incorporation of Approval of Measurement Quantities Work to be For the purpose of measuring such Permanent Works as are to be measured by records and drawings, the Engineer shall prepare records and drawings as the work proceeds and the Contractor, as and when called upon to do so in writing, shall, within 14 days, attend to examine and agree such records and drawings with the Engineer and shall sign the same when so agreed.
If the Contractor does not attend to examine and agree such records and drawings, they shall be taken to be correct. If, after examination of such records and drawings, the Contractor does not agree the same or does not sign the same as agreed, they shall nevertheless be taken to be correct, unless the Contractor, within 14 days of such examination, lodges with the Engineer notice of the respects in which such records and drawings are claimed by him to be incorrect.
On receipt of such notice, the Engineer shall review the records and drawings and either confirm or vary them. Breakdown of Such breakdowns shall be subject to the approval of the Engineer. Provisional Sums Definition of The Contractor shall be entitled to only such amounts in respect of the work, supply or contingencies to which such Provisional Sums relate as the Engineer shall determine in accordance with this Clause.
Use of Production of Nominated Subcontractors Definition of Nominated Design The nominated Subcontract shall specify that the nominated Subcontractor providing such services will save harmless and indemnify the Contractor from and against the same and from all claims, proceedings, damages, costs, charges and expenses whatsoever arising out of or in connection with any failure to perform such obligations or to fulfil such liabilities.
Payments to Certification of If the Contractor fails to supply such proof then, unless the Contractor: a satisfies the Engineer in writing that he has reasonable cause for withholding or refusing to make such payments, and b produces to the Engineer reasonable proof that he has so informed such nominated Subcontractor in writing, the Employer shall be entitled to pay to such nominated Subcontractor direct, upon the certificate of the Engineer, all payments, less retentions, provided for in the nominated Subcontract, which the Contractor has failed to make to such nominated Subcontractor and to deduct by way of set-off the amount so paid by the Employer from any sums due or to become due from the Employer to the Contractor.
Provided that, where the Engineer has certified and the Employer has paid direct as aforesaid, the Engineer shall, in issuing any further certificate in favour of the Contractor, deduct from the amount thereof the amount so paid, direct as aforesaid, but shall not withhold or delay the issue of the certificate itself when due to be issued under the terms of the Contract.
Monthly Payments Provided that the Engineer shall not be bound to certify any payment under this Sub-Clause if the net amount thereof, after all retentions and deductions, would be less than the Minimum Amount of Interim Payment Certificates stated in the Appendix to Tender. Notwithstanding the terms of this Clause or any other Clause of the Contract no amount will be certified by the Engineer for payment until the performance security, if required under the Contract, has been provided by the Contractor and approved by the Employer.
Payment of Provided that, in the event of different Defects Liability Periods having become applicable to different Sections or parts of the Permanent Works pursuant to Clause 48, the expression "expiration of the Defects Liability Period" shall, for the purposes of this Sub-Clause, be deemed to mean the expiration of the latest of such periods.
Provided also that if at such time there shall remain to be executed by the Contractor any work instructed, pursuant to Clauses 49 and 50, in respect of the Works, the Engineer shall be entitled to withhold certification until completion of such work of so much of the balance of the Retention Money as shall, in the opinion of the Engineer, represent the cost of the work remaining to be executed. Correction of The estimated amounts shall be shown separately in such Statement at Completion.
The Engineer shall certify payment in accordance with Sub-Clause Final Statement If the Engineer disagrees with or cannot verify any part of the draft final statement, the Contractor shall submit such further information as the Engineer may reasonably require and shall make such changes in the draft as may be agreed between them. If, following discussions between the Engineer and the Contractor and any changes to he draft final statement which may be agreed between them, it becomes evident that a dispute exists, the Engineer shall deliver to the Employer an Interim Payment Certificate for those parts of the draft final statement, if any, which are not in dispute.
The dispute may then be settled in accordance with Clause Discharge Provided that such discharge shall become effective only after payment due under the Final Payment Certificate issued pursuant to Sub-Clause Final Payment Cessation of In the event of the failure of the Employer to make payment within the times stated, the Employer shall pay to the Contractor interest at the rate stated in the Appendix to Tender upon all sums unpaid from the date by which the same should have been paid.
The provisions of this Sub-Clause are without prejudice to the Contractor's entitlement under Clause 69 or otherwise. Approval only by Certificate Defects Liability The Defects Liability Certificate shall be given by the Engineer within 28 days after the expiration of the Defects Liability Period, or, if different defects liability periods shall become applicable to different Sections or parts of the Permanent Works, the expiration of the latest such period, or as soon thereafter as any works instructed, pursuant to Clauses 49 and 50, have been completed to the satisfaction of the Engineer.
Provided that the issue of the Defects Liability Certificate shall not be a condition precedent to payment to the Contractor of the second portion of the Retention Money in accordance with the conditions set out in Sub-Clause Unfulfilled Remedies Default of Valuation at Date Payment after The Contractor shall then be entitled to receive only such sum if any as the Engineer may certify would have been payable to him upon due completion by him after deducting the said amount.
If such amount exceeds the sum which would have been payable to the Contractor on due completion by him, then the Contractor shall, upon demand, pay to the Employer the amount of such excess and it shall be deemed a debt due by the Contractor to the Employer and shall be recoverable accordingly. Assignment of Urgent Remedial If the work or repair so done by the Employer is work which, in the opinion of the Engineer, the Contractor was liable to do at his own cost under the Contract, then all costs consequent thereon or incidental thereto shall, after due consultation with the Employer and the Contractor, be determined by the Engineer and shall be recoverable from the Contractor by the Employer, and may be deducted by the Employer from any monies due or to become due to the Contractor and the Engineer shall notify the Contractor accordingly, with a copy to the Employer.
Provided that the Engineer shall, as soon after the occurrence of any such emergency as may be reasonably practicable, notify the Contractor thereof. Special Risks Damage to Works Projectile, Missile Increased Costs Outbreak of War Provided that the Employer shall be entitled, at any time after such outbreak of war, to terminate the Contract by giving notice to the Contractor and, upon such notice being given, the Contract shall, except as to the rights of the parties under this Clause and Clause 67, terminate, but without prejudice to the rights of either party in respect of any antecedent breach thereof.
Payment if Provided that against any payment due from the Employer under this Sub-Clause, the Employer shall be entitled to be credited with any outstanding balances due from the Contractor for advances in respect of Contractor's Equipment, materials and Plant and any other sums which, at the date of termination, were recoverable by the Employer from the Contractor under the terms of the Contract. Any sums payable under this Sub-Clause shall, after due consultation with the Employer and the Contractor, be determined by the Engineer who shall notify the Contractor accordingly, with a copy to the Employer.
Release from Performance Payment in Event Such reference shall state that it is made pursuant to this Clause. No later than the eighty-fourth day after the day on which he received such reference the Engineer shall give notice of his decision to the Employer and the Contractor. Such decision shall state that it is made pursuant to this Clause. Unless the Contract has already been repudiated or terminated, the Contractor shall, in every case, continue to proceed with the Works with all due diligence and the Contractor and the Employer shall give effect forthwith to every such decision of the Engineer unless and until the same shall be revised, as hereinafter provided, in an amicable settlement or an arbitral award.
If either the Employer or the Contractor be dissatisfied with any decision of the Engineer, or if the Engineer fails to give notice of his decision on or before the Eighty-fourth day after the day on which he received the reference, then either the Employer or the Contractor may, on or before the seventieth day after the day on which he received notice of such decision, or on or before the seventieth day after the day on which the said period of 84 days expired, as the case may be, give notice to the other party, with a copy for information to the Engineer, of his intention to commence arbitration, as hereinafter provided, as to the matter in dispute.
Such notice shall establish the entitlement of the party giving the same to commence arbitration, as hereinafter provided, as to such dispute and, subject to Sub-Clause If the Engineer has given notice of his decision as to a matter in dispute to the Employer and the Contractor and no notice of intention to commence arbitration as to such dispute has been given by either the Employer or the Contractor on or before the seventieth day after the day on which the parties received notice as to such decision from the Engineer, the said decision shall become final and binding upon the Employer and the Contractor.
Amicable Provided that, unless the parties otherwise agree, arbitration may be commenced on or after the fifty-sixth day after the day on which notice of intention to commence arbitration of such dispute was given, even if no attempt at amicable settlement thereof has been made. Arbitration The provisions of Sub-Clauses Notices Notice to Notice to Fossils Headings and Marginal Notes 1. Measurement by Engineer Openings, Uncovering and Making Possession of Site Roads, etc - Damage by Extraordinary Traffic Safety, Security and Protection of the Environment Staff, Engagement of Subcontractors, Responsibility of the Contractor for Acts and Default of 4.
Unfulfilled Obligations The definitions of "Defects Liability Period" and "nominated Subcontractor" are to be found in clause In addition, four terms which have not been given capital letters are also defined. The headings and marginal notes are to be ignored when interpreting the Contract.
The references to individuals include firms, corporations and other legal organizations. Singular words and plural words may be interchangeable where the context so requires. Notices, consents, approvals, certificates and determinations must be given in writing and, with the exception of notices, must not be unreasonably withheld or delayed.
What in the 3rd Edition was referred to but not defined as "Certificate of Completion", is now defined as the Taking-Over Certificate. The only definition that has not been repeated in the 4th Edition is "Approved". This definition has essentially been overtaken by clause 1. It should be noted that all the definitions are subject to the opening words "except where the context otherwise requires". Sub-clauses 1. Naturally, the parties must ensure that the entries in Part II and the Agreement are identical.
The Contractor's ability to assign is restricted by clause 3. Under that clause, the consent "shall be at the sole Page 33 of Thus, the Employer has the right to refuse an assignment on any grounds. The Contractor's consent to an assignment is however subject to clause 1. Thus, the Employer's ability to assign is greater than that of a Contractor.
It is submitted that bona fide concern over the financial standing of the Employer's proposed assignee would be reasonable grounds for refusing consent.
It is undoubtedly right that having carefully selected a Contractor to execute the works, the Employer should have a right of veto over any proposed assignment. An attempted assignment without the requisite consent would, in English law at least, be ineffective. Again under English law, an assignment by an Employer with consent would not relieve that Employer of a primary obligation to pay the Contractor.
The Engineer's contract of engagement would also normally need to be assigned or novated to the new Employer. Thus, a labour-only subcontractor does not fall within the definition. The Engineer must be named in Part II. It is a new feature of the 4th Edition that there is no ability in the Employer to replace the Engineer. The present definition will not be a problem if the Engineer is named as a firm; however, the Engineer will often be a named individual.
According to the Guide issued by FIDIC on the 4th Edition, the reason for this change from the 3rd Edition is that the identity of the Engineer and his reputation has been a factor in the calculation of the Contractor's tender. This, it is submitted, is a mistake. Whilst it is certainly true that a Contractor might well price work differently if the Engineer is a respected independent professional on the one hand rather than a government department's Chief Engineer on the other, the functioning of the contract is so dependent upon the existence of an Engineer there must be a substantial risk of the project falling apart if its survival is dependent upon the parties' ability to agree a replacement Engineer in the event that the named Engineer died or otherwise ceased to act.
If the parties were in dispute at the time, the prospects for agreement must be limited. In theory, a dispute over the replacement Engineer would be one capable of resolution under the arbitration clause. However, in the absence of an Engineer, it is difficult to see how the disputes procedure can commence. It may be possible to draw a distinction between situations where the Engineer has died and other circumstances where he is simply failing or refusing to act.
In the latter circumstances, the Engineer is still in existence and the disputes procedure can advance by default. If he is dead, there does not seem to be any way forward without agreement between the parties. The Employer is obliged to try to replace him and obtain the Contractor's agreement, it is submitted. For a case on the Page 34 of A similar distinction may be made with regard to the powers delegated to the Engineer's Representative under clause 2.
If the Engineer is alive, it is arguable that the Engineer's Representative's powers are unimpaired. However, the Contractor's ability to question any communication of the Engineer's Representative by reference to the Engineer under clause 2.
If the Engineer died or otherwise ceased to act and the parties are unable to agree to a replacement, the effects, it is submitted, would be as follows:- 1 The Employer would not be in breach of his obligation to ensure that the Engineer exercises his functions provided that he has taken reasonable steps to propose an alternative Engineer and has not been unreasonable in refusing any nominee of the Contractor. Compare clause The obligation would probably be to pay when the works were complete.
Thus, it may be arguable that the fundamental obligations of the parties remain intact:- i the Contractor's obligation under clause 8. The Employer may, however, have no obligation to make any payment until the works are complete. If all the delay was the Contractor's responsibility, it may be arguable that clause 47 Liquidated damages for delay would continue to operate as it is not dependent upon the existence of the Engineer, who is not mentioned in the clause.
However, substantial completion is certified by the Engineer. The Contractor could be liable for breach of an obligation to complete within a reasonable time, once time was set at large. Thus it is just conceivable that a project could limp onwards without an Engineer.
Plainly, it is most unsatisfactory and an Employer might be well advised, having exhausted attempts to agree a new Engineer simply to appoint one and Page 35 of For a discussion on when the Engineer's role comes to an end and he is functus officio, see under clause 2. See also the comments under clause In view of the delegation provision, express mention of the Engineer's Representative is unnecessary.
See clause 5. The reference in earlier editions to a "Schedule of Rates and Prices, if any" has not been repeated in this edition. It should be noted that the term "Contract" includes the Drawings and it is therefore arguable that the term includes future drawings. In order to make sense of expressions such as "increase or decrease the quantity of any work included in the Contract" in clause Thus, strictly speaking, the expression "increase or decrease the quantity of any work included in the Contract" in clause Equally, the definition of Works is defined by reference to the contract and thus incorporates variability.
It must be doubted that this point is ultimately of great significance. The inclusion of samples, patents and models is perhaps surprising and produces curious results if taken literally. For example, under clause 6. This is one of the occasions when the opening words of this sub-clause, "except where the context otherwise requires", will be most relevant.
It is also important to appreciate that this definition is not limited to drawings etc in existence at the time time the Contract is entered into but refers to all future drawings. See in particular clause 55 Quantities and clause 56 Works to be measured. The 4th Edition no longer contains a reference to the Schedule of Rates.
Page 36 of Thus, it is not necessarily the tender as submitted by the Contractor but the result of any negotiation prior to the placing of the order. Any programme included in the tender will become part of the contract as the tender is a contract document: for diccussion of this see under clause It is second only to the Contract Agreement which is an optional document.
It is important to ensure that the Letter of Acceptance matches the tender or, if there have been subsequent negotiations, an amended version of that tender. Otherwise, the Letter of Acceptance would be no more than a counter-offer which would require a further acceptance from the Contractor before a contract was formed. As "the Tender" is a contract document, conflict would result if the tender was not amended. It is also important to ensure that, if a Contract Agreement is used, the Letter of Acceptance and Contract Agreement also match.
There are no terms in the contract which govern the Letter of Acceptance but it is used extensively as a trigger for periods of time by which certain activities have to be performed. These are as follows:- Clause It would make a nonsense of the various time periods if they were running before a contract had been entered into. Both the definition of Contract at clause 1. The Contract Agreement should be amended to record such further documents.
This definition therefore refers to the Appendix as amended. The notice to commence is not in a specified form. See generally the commentary to clause 41 Commencement of Works.
Page 37 of Substantial completion must be achieved under clause For more on this point, see the commentary under clause The definition of Temporary Works is not without difficulty as set out under f iii below. As there are dangers in including Temporary Works in the definition of Works, the draftsman has taken the precaution of putting flexibility ahead of certainty with the words "or either of them as appropriate". This reinforces the opening words of the sub-clause "except where the context otherwise requires".
As noted in the commentary to clause 41 Commencement of Works , this is unfortunate as the failure to commence the Works is a ground for determination under clause See clause It should be borne in mind that temporary works are not always removed, for example temporary linings to tunnels or temporary roads.
It might be confusing as plant is normally regarded as meaning Contractor's machinery. Instead, this means the plant to be installed as part of the permanent works. The Contractor's machinery is now defined as Contractor's Equipment. The current definition is circular with the definition of Temporary Works. ICE 6th has adopted the term Contractor's Equipment. The difference is that a Section is specifically identified in the contract whereas a part, which is not defined, seems to be any other sub-division including a sub-division of a Section.
See this distinction in operation in clause This definition falls into two parts:- a Places provided by the Employer where the Works are to be executed; and b Other places which are specifically designated in the contract as forming part of the site.
Compare 3rd Edition and ICE 5th which break down as follows:- a places on, under in or through which works are to be executed; and b places provided by the Employer or specifically designated in the contract as forming part of the site. The essential difference is that a is qualified by the words "provided by the Employer" in this Edition but b contains those words in the 3rd Edition and ICE 5th.
One significance of this is that the Employer cannot be in breach of clause As the Site will normally be defined in the contract, this should not normally give rise to problems. Nor, it is submitted, should the omission of the words "on, under, in or through" create difficulties.
If the failure to give possession is the failure of the Employer to organise the removal, for example, of an underground pipe or cable conduit, even though the possession of the surface has been given to the Page 39 of Contractor, the Contractor's claim under clause See also the commentary under clause See the comments under clause ICE 6th has added the "other places Thus, the only occasion on which the Contractor is allowed his profit by the contract is under clause This definition has been adopted with minor amendments by ICE 6th.
However ICE 6th expressly permits profit on three occasions in the contract in relation to any additional temporary or permanent works. Compare, for example, clause 67 Settlement of disputes in the two editions.
Thus, the Contract Price could itself be expressed in a foreign currency. Part II provides various amendments to clause 60 and clause Whilst it is no doubt a good idea to have defined terms for interim and final certificates, the definition of Interim Payment Certificate raises the question as to which clauses other than clause The definition could and, it is submitted, should simply have referred to certificates issued under sub-clause Other certificates to be issued by the Engineer include the Taking-Over Certificate under clause 48 for the whole or part of the works, a certificate of the Contractor's default under clause These all lead to payments being made Page 40 of Under clause Such certificates fall within the definition of Interim Payment Certificates.
The certificate under In contrast, the certificate under sub-clause Curiously, a certificate under Sub-Clause However, such a certificate is deemed to be a debt and is not strictly therefore a certificate for payment. Within clause 60 Certificates and payment there are certificates under sub- clause Practice varies but more often than not, the first moiety of retention is released in the next interim certificate.
The fact that the certification falls within the definition of Interim Payment Certificate, does not resolve the issue. In one respect, Contractors are ill-served by this amendment.
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