10 SPCOC Infra Works Package PDF

KERAJAAN MALAYSIA KEMENTERIAN PENGANGKUTAN
INFRASTRUCTURE WORKS PACKAGE: DOUBLE TRACK PROJECT BETWEEN IPOH - PULAU PINANG PADANG BESAR
SPECIAL PROVISIONS TO THE CONDITIONS OF CONTRACT

MAY 2002
DOUBLE TRACK PROJECT BETWEEN IPOH - PULAU PINANG - PADANG BESAR
NOTES TO THE SPECIAL PROVISIONS The following provisions of the Conditions of Contract (including the Special Conditions thereto) shall be modified to the intent and in the manner set forth below. Where any provision of the Conditions of Contract is to be replaced, any reference in the Contract Documents to that provision shall be construed as a reference to the corresponding clause of the Special Provisions that shall have replaced it. In addition, capitalised words or expressions used in the Conditions of Contract shall have the meanings assigned to them in the Special Provisions. 1. Clauses 1.1 1.2, Conditions of Contract shall be replaced with Clause 5, Special Provisions. Clauses 1.3 1.5, Conditions of Contract shall be replaced with Clause 1, Special Provisions. Clause 2.1, Conditions of Contract shall be replaced with Clause 8, Special Provisions. Clauses 2.2, 2.3.1 2.3.2 and 7, Conditions of Contract shall be replaced with Clause 7, Special Provisions. Clauses 2.4.1 2.4.2, Conditions of Contract shall be replaced with Clause 34A, Special Provisions. Clause 2.6, Conditions of Contract shall be replaced with Clause 19, Special Provisions and Clause 30B, Special Provisions. Clauses 2.7.1 2.7.2, Conditions of Contract shall be replaced with Clause 20, Special Provisions. In Clause 2.8.1, Conditions of Contract, in the first sentence delete either during the execution of the Works or during the Defects Liability Period and replace with whether during the Execution of the Works or during the Defects Liability Period and/or Maintenance Period. Clause 2.8.4, Conditions of Contract shall be replaced with Clause 61, Special Provisions. Clauses 2.9.1 2.9.3, and 2.10.1 2.10.4, Conditions of Contract shall be replaced with Clause 4, Special Provisions. Clauses 2.11.1 2.11.5, Conditions of Contract shall be replaced with Clause 14, Special Provisions. Clauses 3 and 4, Conditions of Contract shall be replaced with Clause 2, Special Provisions. Clause 5, Conditions of Contract shall be replaced with Clause 65, Special Provisions.
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2.
3. 4.
5.
6.
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8.
9. 10.
11.
12.
13.
Vol. 1 Governments Requirement For Infrastructure Package Part 2 SPCOC For Infrastructure Works Package Notes To Special Provisions
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14. 15.
Clause 6, Conditions of Contract shall be replaced with Clause 6, Special Provisions. Clauses 8.1 8.4, and 8.6 8.8 Conditions of Contract shall be replaced with Clause 34, Special Provisions. Clause 8.5, Conditions of Contract shall be replaced with Clause 37, Special Provisions. Clause 9, Conditions of Contract shall be replaced with Clause 31, Special Provisions. Clause 10, Conditions of Contract shall be replaced with Clause 52, Special Provisions. Clause 11, Conditions of Contract shall be replaced with Clause 53, Special Provisions. Clause 12, Conditions of Contract shall be replaced with Clause 24, Special Provisions. Clause 13, Conditions of Contract shall not be used in this Contract. Clause 14, Conditions of Contract shall be replaced with Clause 25, Special Provisions. Clause 15, Conditions of Contract shall be replaced with Clause 26, Special Provisions. Clause 16, Conditions of Contract shall be replaced with Clause 17, Special Provisions. Clause 17, Conditions of Contract shall be replaced with Clause 11, Special Provisions. In Clause 18, Conditions of Contract, replace all references to execution of the Contract with Execution of the Works. Clause 21, Conditions of Contract shall be replaced with Clause 32, Special Provisions. Clause 22, Conditions of Contract shall be replaced with Clause 15, Special Provisions.. Clause 25, Conditions of Contract shall be replaced with Clause 16, Special Provisions. Clause 27, Conditions of Contract shall be replaced with Clause 49, Special Provisions. Clause 28, Conditions of Contract shall be replaced with Clause 50, Special Provisions. Clause 29, Conditions of Contract shall be replaced with Clause 55, Special Provisions. In Clause 30, Conditions of Contract, delete in the first sentence the phrase in the Conditions, and delete in the penultimate sentence the phrase Interim Payment and replace with interim payment. Clause 31, Conditions of Contract shall be replaced with Clause 3, Special Provisions.
16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26.
27. 28. 29. 30. 31. 32. 33.
34.
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II
35. 36.
Clause 32, Conditions of Contract shall be replaced with Clause 29, Special Provisions. Clause 33, Conditions of Contract shall be replaced with Clauses 21 and 22, Special Provisions. In Clause 34.1, Conditions of Contract, delete in the second sentence the phrase the Contractor shall as a condition precedent to the commencement of any work under this Contract and replace with the Contractor shall within twenty-one (21) Days of the Commencement Date, and replace all references to execution of the Works with the phrase Execution of the Works. In Clause 34.2, Conditions of Contract, delete in the final sentence the phrase any of the excepted risks in Clause 2.7.2 and replace with any of the Governments Risks and replace all references to execution of the Works with the phrase Execution of the Works. In Clause 36.3(b), Conditions of Contract, insert in the penultimate sentence after Performance Bond the phrase , Security Deposit or Security Retention. In Clause 37.1, Conditions of Contract, delete in the third sentence from the bottom the phrase Partial Occupation by the Government and replace with occupation by the Government pursuant to a Certificate of Partial Occupation. In Clause 37.3, Conditions of Contract, insert in the final sentence after Performance Bond the phrase , Security Deposit or Security Retention. In Clause 37.4, Conditions of Contract, replace all references to completion of the Works with the phrase Completion of the Works. Clause 38, Conditions of Contract shall be replaced with Clause 10, Special Provisions. Clause 39, Conditions of Contract shall be replaced with Clause 40, Special Provisions. Clause 40, Conditions of Contract shall be replaced with Clause 62, Special Provisions. Clause 41.1, Conditions of Contract shall be replaced with Clause 41, Special Provisions. Clause 41.2, Conditions of Contract shall be replaced with Clause 46, Special Provisions. Clause 41.3, Conditions of Contract shall not be used in this Contract. Clause 42, Conditions of Contract shall be replaced with Clause 45, Special Provisions. Clause 43, Conditions of Contract shall not be used in this Contract. In Clause 44(b), Conditions of Contract, in the first sentence insert after Defects Liability Period the phrase and Maintenance Period.
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37.
38.
39.
40.
41.
42.
43. 44. 45. 46. 47. 48. 49. 50. 51.
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52.
Delete Clause 44(f), Conditions of Contract, and replace with a new Clause 44(f), Conditions of Contract as follows: at the end of the Maintenance Period of the relevant part and if in the opinion of the S.O., the Contractor has remedied and supplied / replaced all defective parts or items caused by normal wear and tear, inclusive of all consumable items so that the whole of the Works are maintained in the best efficient working order, the S.O. shall issue a certificate to that effect.
53. 54. 55. 56. 57. 58.
Clause 45, Conditions of Contract shall be replaced with Clause 42, Special Provisions. Clause 46, Conditions of Contract shall be replaced with Clause 51, Special Provisions. Clause 47, Conditions of Contract shall be replaced with Clauses 35 and 35A, Special Provisions. Clause 48, Conditions of Contract shall be replaced with Clause 47, Special Provisions. Clause 49, Conditions of Contract shall be replaced with Clause 59, Special Provisions. Clauses 50, 51 & 53, Conditions of Contract shall be replaced with Clause 57, Special Provisions. Clauses 52, Conditions of Contract shall be replaced with Clause 58, Special Provisions. Clause 54, Conditions of Contract shall be replaced with Clause 60, Special Provisions. Clause 55, Conditions of Contract shall not be used in this Contract. Clause 56, Conditions of Contract shall be replaced with Clause 64, Special Provisions. Clause 57, Conditions of Contract shall be replaced with Clause 75, Special Provisions. Clause 58, Conditions of Contract shall be replaced with Clause 72, Special Provisions. In Clause 59.1, Special Conditions to the Conditions of Contract delete in the first sentence and Services as listed in the scope of maintenance of works contained in the Governments Requirements and replace with in accordance with the Contract Documents, and delete date of Practical Completion of the Works with date on which the Works have achieved practical completion as stated in the Certificate of Practical Completion. In Clause 59.2, Special Conditions to the Conditions of Contract delete in the first sentence said twenty-four (24) months so that the whole of the Works and Services is maintained in the best efficient working order and replace it with Maintenance Period so that the whole of the Works is maintained in accordance with the requirements prescribed in the Contract Documents. In the second sentence, delete This maintenance and replace it with Without prejudice to any other requirements in the Contract Documents, the
59. 60. 61. 62. 63. 64. 65.
66.
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IV
Contractors obligations during the Maintenance Period. All references to equipment in this clause shall be replaced with Plant. 67. 68. 69. In Clause 59.4.1, Conditions of Contract delete and Services in the first sentence. Clauses 60 61, Conditions of Contract shall not be applicable. The Appendices to the Conditions of Contract shall be replaced with Appendix 1 7, Special Provisions. Insert after Clause 60, Conditions of Contract as new provisions (with corresponding sequential numbering) Clauses 9, 12, 13, 18, 23, 27, 28, 30, 30A, 33, 36, 38, 39, 43, 44, 48, 54, 56, 60, 63, 66 71, 73 and 74, Special Provisions.
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CONTENTS INDEX TO APPENDICES

APPENDIX 1 APPENDIX 2 APPENDIX 3 APPENDIX 3A APPENDIX 4 APPENDIX 5 APPENDIX 6 APPENDIX 7 CONTRACT PARTICULARS PERFORMANCE BOND SUB-CONTRACTORS WARRANTY AND SUPPLIERS WARRANTY FORM OF DESIGNERS WARRANTY PARENT COMPANY GUARANTEE MEDIATION RULES WARRANTY BOND GOVERNMENT MULTI-MODAL TRANSPORT OPERATOR
Vol. 1 Governments Requirement For Infrastructure Package Part 2 SPCOC For Infrastructure Works Package Table of Content
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1.1
DEFINITIONS AND INTERPRETATION

Definitions In the Contract (as hereinafter defined) the following words and expressions shall have the meanings hereby assigned to them, except where the context otherwise requires: Acceleration Measures Acceleration Proposals Agreed Delivery Terms has the meaning ascribed to it in Clause 44.1. has the meaning ascribed to it in Clause 44.2. shall mean delivery on terms where the Contractor is fully responsible for the delivery of Plant and/or Materials to the Site, including the performance of the requisite customs formalities, insuring the goods using Malaysian insurance companies registered with the Ministry of Finance and approved by the Government, and using Multi-Modal Transport Operators for carriage of the Plant and/or Materials. means the agreement entered into or to be entered into by the parties hereto and forming part of the Contract. has the meaning ascribed to it in Clause 4.4.3. has the meaning ascribed to it in Clause 4.4.1.
Articles of Agreement
Bumiputra Consultants Bumiputra SubContractors Bumiputra Suppliers Certificate of Completion of Maintenance Certificate of Completion of Making Good Defects
has the meaning ascribed to it in Clause 4.4.2. has the meaning ascribed to it in Clause 59.2 of the Conditions of Contract. means the certificate issued by the S.O. pursuant to Clause 59.1 stating the date on which the Contractor shall have completed its obligations to Execute the Works to the S.O.s satisfaction. means the certificate issued by the S.O. pursuant to Clause 35.8. means the certificate issued by the S.O. pursuant to Clause 45.1. Means the certificate issued pursuant to Clause 44 (a) of the Conditions of Contract. means a certificate issued pursuant to Clause 46.1.
Certificate of Final Acceptance Certificate of NonCompletion Certificate of Partial Occupation Certificate of Practical Completion
Vol. 1 Governments Requirement For Infrastructure Package Part 2 - 10 SPCOC Infra Works Package
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Commissioning Tests
means such tests to be made by the Contractor before the Works are taken over by the Government as are provided for in the Contract (whether by Clause 35A.1 or otherwise) or otherwise agreed between the S.O. and the Contractor or reasonably required by the S.O. means the date upon which the Contractor receives the notice to commence issued by the S.O. pursuant to Clause 39. means the design, construction, testing and commissioning of the Permanent Works to the satisfaction of the S.O. so as to enable the issue of a Certificate of Practical Completion, as more particularly described in Clause 46.1, and Complete and Completed shall be construed accordingly. means the date for Completion of the Works as stated in Appendix 1 (as may be extended or adjusted under Clause 42 or Clause 44). means the document described as the Conditions of Contract (including the special conditions thereto) forming part of the Contract Documents as amended and/or supplemented by these Special Provisions. has the meaning ascribed to it in Clause 15.2.3.
Commencement Date
Completion
Completion Date
Conditions of Contract
Construction Superintendent Contract
means the agreement entered into between the Government and the Contractor for the Execution of the Works on the terms set out in the Contract Documents. means the various documents identified as such in the Articles of Agreement. means the sum stated in the Letter of Acceptance as payable to the Contractor for the Execution of the Works in accordance with the provisions of the Contract. means the person whose tender has been accepted by the Government and the legal successors in title to such person, but not (except with the consent of the Government) any assignee of such person. means any calculation, chart, design, detail, drawing, mock-up, model, pattern, proposal, sample, schedule, software, specification or other document or information prepared by, or on behalf of, the Contractor in relation to the design for the Permanent Works.
Contract Documents
Contract Sum
Contractor
Data
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Day Daywork Schedule
means calendar day. means the daywork schedule prepared and priced by the Contractor in respect of the Works and included in and forming part of the Contract. has the meaning ascribed to it in Clause 47. has the meaning ascribed to it in Clause 15.2.2. has the meaning ascribed to it in Clause 15.2.6. has the meaning ascribed to it in Clause 7.2.3. means a sub-contractor named by the Government in accordance with Clause 56. means a supplier named by the Government in accordance with Clause 56. has the meaning ascribed to it in Clause 15.2.9. means the plan submitted by the Contractor and approved by the S.O. in accordance with Clause 30A.1. means all appliances and things of whatsoever nature (other than Temporary Works) (or any part thereof) required for the Execution of the Works, but does not include Plant, Materials or other things intended to form or forming part of the Permanent Works. means the design, supply of labour, System parts, Plant and Materials, transportation, delivery to Site, construction, erection, installation, testing, commissioning, completion, and training in the use of the Works in accordance with the Contract; the preparation and/or delivery (as appropriate) of all information, drawings and manuals in respect of the Works required by the Contract, the provision of such spare parts, consumables and tools as are required by the Contract; and the management of all such matters. Executed and Execution shall be construed accordingly. has the meaning ascribed to it in Clause 57.6. means the design of the Works (whether in whole or in part) as approved by the S.O. in accordance with Clause 7.2 (and as may be varied in accordance with Clause 49.
Defects Liability Period Deputy Project Manager Design Co-ordinator Design Order Designated SubContractor Designated Supplier
Environmental Manager Environmental Management Plan Equipment
Execution of the Works
Final Certificate Final Design
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Government Governments Risks Interim Certificate KTMB Letter of Acceptance
means the Ministry of Transport (Kementerian Pengangkutan Kerajaan Malaysia), Government of Malaysia. has the meaning ascribed to it in Clause 20.4. means a payment certificate issued pursuant to Clause 57.3. means Keretapi Tanah Melayu Berhad. means the document pursuant to which the Governments formal acceptance is given in respect of the Contractors priced offer for the Execution of the Works in accordance with the provisions of the Contract. means those damages provided by Appendix 1 and Clause 45 to be paid or allowed by the Contractor to the Government as compensation for the breach of the Contractors obligation to complete the Works by the Completion Date. The parties recognise the expense and inconvenience likely to be incurred from any need to prove the loss and damage that will be suffered by the Government in the event of any such default on the part of the Contractor. In consideration of the Government agreeing to limit its right to damages for such default as provided in Appendix 1 and Clause 45, which damages and limitation the parties have had the opportunity to consider and to reflect in the Contract Sum, the parties acknowledge that such sums are the sole, complete and reasonable compensation for the respective losses and damages that will be suffered by the Government in the event of any such default on the part of the Contractor, and the parties irrevocably undertake that they will not, whether by legal proceedings or otherwise, contend that such sums and the limits thereon in Appendix 1 and Clause 45 are not a genuine pre-estimate of the loss and damage that will be suffered by the Government nor will the Contractor put the Government to the proof thereof, nor will either party further contend that its agreement to such sum and undertaking as aforesaid was arrived at by force, duress, coercion, mistake or misrepresentation on the part of the other party. shall have the meaning ascribed to it in Clause 59.1 of the Conditions of Contract. has the meaning ascribed to it in Clause 15.2.5. means things of all kinds (other than Plant) to be provided by the Contractor and incorporated in the Permanent Works by the Contractor incorporation in the Works, which are to be provided as specified in the Contract Documents.
Liquidated Damages
Maintenance Period
Maintenance Supervisor Materials
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Month Multi-Modal Transport Operators Performance Bond Permanent Works
means a Gregorian calendar month and all time periods shall be calculated according to the Gregorian calendar. means the transport operators approved by the Government as identified in Appendix 7. has the meaning ascribed to it in Clause 10.1. means the permanent works to be Executed (including the System, Plant and Materials in accordance with the Contract Documents ), or any part thereof. means the machinery, apparatus and the like intended to form or forming part of the Permanent Works (or any part thereof), which are to be supplied by the Contractor as specified in the Contract Documents. means the priced breakdown of the elements of the Works prepared by the Contractor for the purposes of the Contract. has the meaning ascribed to it in Clause 14.4.1. means the design, construction, completion, testing, commissioning and maintenance of the electrified double track project between Ipoh, Pulau Pinang and Padang Besar. has the meaning ascribed to it in Clause 15.2.1. has the meaning ascribed to it in Clause 55.1. has the meaning ascribed to it in Clause 15.2.7.
Plant
Price Breakdown
Programme Project
Project Manager Provisional Sum Quality Assurance Manager Quality Assurance Plan
means the plan submitted by the Contractor and Approved by the S.O. for the control of all construction activities so as to facilitate the Execution of the Works in accordance with the Contract. means works other than the Works, performed or undertaken or to be performed or undertaken by the Government or other contractors or suppliers of the Government or by public or private utilities or statutory or other relevant authorities either concurrently or sequentially with the Works at, on, over or adjacent to the Site in connection with or related to the Project and which may be connected to, associated with, ancillary to or otherwise related to or relevant to the Works.
Related Works
Related Works
means any person engaged by, or on behalf of, the Government
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Contractor Retention Sum
to perform or undertake the Related Works. means the aggregate of all monies retained by the Government pursuant to Clause 57.3.2. means the lawful currency of Malaysia. has the meaning ascribed to it in Clause 15.2.8. means the plan and all supplemental plans, as may be amended from time to time (and at any time prior to the issue of the Certificate of Completion of Making Good Defects and Certificate of Completion of Maintenance), submitted by the Contractor and approved by the S.O. in accordance with Clause 30B.1. means the completed and priced Schedule of Rates, or any part or individual schedule thereof, submitted by the Contractor and forming a part of the Contract. has the meaning ascribed to it in Clause 10.1.2. has the meaning ascribed to it in Clause 10.1.3. means the land and other places on, under, in or through which the Works are to be Executed and to which Plant and Materials are to be delivered, and any other places as may be specifically designated in the Contract as forming part of the Site, or any part thereof. means these Special Provisions to the Conditions of Contract. has the meaning ascribed to it in Clause 24.1. means any person, including a Designated Sub-Contractor, named in the Contract as a Sub-Contractor for a part of the Works or any person to whom a part of the Works has been subcontracted by the Contractor (whether with or without the consent of the S.O.) and the legal successors in title to such person, but not any assignee of any such person. means the person appointed by the Government to act as S.O. for the purposes of the Contract and named as such in Appendix 1 or such other person so appointed by the Government from time to time (and at any time prior to the issue of the Certificate of Completion of Making Good Defects and Certificate of Completion of Maintenance) and notified as such to the Contractor. References in the Contract Documents to Project
Ringgit Malaysia or RM Safety Manager Safety Plan
Schedule of Rates
Security Deposit Security Retention Site
Special Provisions Statutory Requirements Sub-Contractor
Superintending Officer or S.O.
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Supplier
Director or P.D. shall be deemed to be a reference to the S.O.. means any person or persons other than the Contractor to whom the supply of any Plant and/or Materials has been sub-contracted by the Contractor (whether with or without the consent of the S.O.) and includes Designated Suppliers and, where applicable, the permitted legal successors in title of such Supplier but not any assignee of the Supplier. means all temporary works of every kind (other than Equipment) required in connection with the Execution of the Permanent Works, or any part thereof. has the meaning ascribed to it in Clause 49.1. has the meaning ascribed to it in Clause 8.3. has the meaning ascribed to it in Clause 8.3.4. means the Permanent Works and the Temporary Works.
Temporary Works
Variation Warranty Period Warranty Bond Works
1.2
Headings and Marginal Notes The headings and marginal notes in these Special Provisions shall not be taken into consideration in the interpretation or construction thereof or of the Contract.
1.3 1.3.1
Interpretation Words importing persons or parties shall include firms and corporations and any organisation having legal capacity. References to Clauses and Appendices in these Special Provisions and the Appendices thereto shall, unless otherwise specified, be to Clauses and Appendices of these Special Provisions. References to any enactment, statute, ordinance, by-law or regulation (or any provision thereof) shall mean such enactment, statute, ordinance, by-law or regulation (or any provision thereof) as may be amended or replaced from time to time. The contra proferentum rule shall not apply to the interpretation of this Contract. Singular and Plural Words importing the singular only also include the plural and vice versa where the context requires.
1.3.2
1.3.3
1.3.4 1.4
1.5
Notices, Consents, etc. to be in writing Wherever in the Contract provision is made for the making, giving or issue of any acceptance, account, acknowledgement, application, approval, certificate, communication, confirmation, consent, demand,
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determination, direction, estimate, instruction, notice, order, proposal, requirement or request by any person, unless otherwise specified such acceptance, account, acknowledgement, application, approval, certificate, communication, confirmation, consent, demand, determination, direction, estimate, instruction, notice, order, proposal, requirement or request shall be in writing and the words accept, account, acknowledge, apply, approve, certify, communicate, confirm, consent, demand, determine, direct, estimate, instruct, notify, order, propose, require or request (and each of their cognate expressions) shall be construed accordingly. 1.6 Costs Whenever under this Contract the Contractor is entitled to be paid costs, such costs shall consist only of direct costs (which shall consist of all costs incurred by the Contractor for Equipment, Plant, Materials and labour assigned directly for use in connection with the Works) and indirect costs (comprising Site overhead costs (which shall consist of the Contractors administrative staff salaries, utilities, supplies, transportation and Site office expenses) and head office overhead costs (which shall include items of a similar nature to Site overhead costs, provided always that the Contractor shall not be entitled to recover head office overhead costs unless it is able to satisfy the Government that such costs were incurred directly and wholly for the purposes of the Contract, and is able to furnish evidence in form and substance acceptable to the Government verifying its claim)) reasonably and properly incurred wholly and directly in connection with the Works or for the purposes of the Contract and paid by the Contractor. For the avoidance of doubt, the Contractor shall not be entitled to be paid as part of its costs, any sums (whether or not such sums have been incurred by the Contractor either directly or indirectly, in whole or in part, in connection with the Works or for the purposes of the Contract) for profit or financing charges (including, without limitation, interest on capital employed or monies borrowed), for research and development, business development and/or loss of any business opportunity or profit. In addition, the Contractor shall not be entitled to be paid as part of its costs, any sum for which it could have obtained through any commission, credit, discount, freight allowance, insurance payout, rebate, refund, retrospective insurance premium adjustment, tax equalisation, or any other form of financial savings. The onus of showing that such costs have been incurred by the Contractor directly and wholly for the purposes of the Contract shall be upon the Contractor at all times.
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2.1 2.1.1 2.1.2 2.1.3
SUPERINTENDING OFFICER
S.O.s Duties and Authority The S.O. shall carry out the duties specified in the Contract. The S.O. may exercise the authority specified in or necessarily to be implied from the Contract. Unless otherwise expressly provided in the Contract Documents, the S.O. shall have no authority to relieve the Contractor of any of its liabilities or obligations under the Contract. Any communication from the Contractor to the S.O. shall be copied by the Contractor to the Government.
2.1.4
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2.2
Compliance with Instructions of the S.O. If promptly after receipt of a notice from the S.O. requiring compliance with an instruction the Contractor does not comply therewith, then the Government may employ and pay other persons to execute any work or services which may be necessary to give effect to such instruction and all costs incurred in connection with such employment may be deducted by the Government from any monies due or becoming due to the Contractor under this Contract or shall be recoverable by the Government in accordance with Clause 57.9.
2.3
S.O.s Authority to Delegate The S.O. may, by notice to the Contractor, from time to time (and at any time prior to the issue of the Certificate of Completion of Making Good Defects and Certificate of Completion of Maintenance), delegate to any person any of the discretion, duty, power and/or authority vested in the S.O. and it may, by further notice, at any time revoke such delegation. Any communication given to the Contractor by such person in accordance with such delegation shall have the same effect as though it had been given by the S.O. Provided that: -
2.3.1
any approval of, or any failure of such person to disapprove any design, work, Plant and/or Materials shall not prejudice the authority of the S.O. to disapprove such design, work, Plant and/or Materials and to give instructions for the rectification thereof; and if the Contractor questions any communication of such person, it may refer the matter to the S.O. who shall confirm, reverse or vary the contents of such communication. Provided that the Contractor shall be deemed to have accepted such communication if it has not referred the matter to the S.O. within seven (7) Days of such communication. Any communication from the Contractor to such person shall be copied forthwith by the Contractor to the S.O. and to the Government.
2.3.2
2.4
Appointment of Assistants The S.O. may appoint any number of persons to assist him in the carrying out of its duties under Clause 2.1. He shall notify the Contractor of the names, duties and scope of authority of such persons. Such assistants shall have no authority to issue any instructions to the Contractor save as may be specifically notified to the Contractor, in which case any such instructions shall be deemed to have been given by the S.O.. Any communication between the Contractor and any assistant of the S.O. shall be copied forthwith by the sender to the S.O. and to the Government.
2.5
Instructions in Writing Without prejudice to Clause 1.5, instructions given by the S.O. or any delegate or assistant shall be in writing, provided that if for any reason the S.O. or any delegate or assistant considers it necessary to give any such instruction orally, the Contractor shall comply with such instruction. Confirmation of such oral instruction given by the S.O., or delegate or assistant (as the case may be), whether before or after the carrying out of the instruction, shall be deemed to be an instruction within the meaning of this Clause. Provided that if the Contractor, within seven (7) Days, confirms by notice to the S.O., delegate or assistant (as the case may be) any oral instruction of the S.O., delegate or assistant and such confirmation is not contradicted in writing within seven (7) Days by the S.O., delegate or assistant, (as
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the case may be), it shall be deemed to be an instruction of the S.O., delegate or assistant (as the case may be).
2.6
Governments Protection The Contractor acknowledges and agrees that the provisions or requirements in the Contract for matters or work to be done to the satisfaction of the S.O., or to be certified, determined, accepted or confirmed by the S.O. or with the consent or approval of the S.O., are inserted as protection to the Government additional to any other rights or remedies which the Government may have for any act, omission, negligence, default or breach arising out of or in connection with this Contract on the part of the Contractor. No payment by the Government, nor any expression or implication of satisfaction or acceptance nor any approval, confirmation, consent, certification, determination or notice by the S.O. shall restrict, de-bar, exclude or waive any claims, rights or actions whatsoever by the Government for any breach of any such obligation by the Contractor.
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3.1
ASSIGNMENT
Assignment by Contractor The Contractor shall not, without the prior express consent of the Government, assign the Contract or any part thereof, or any benefit or interest therein or thereunder, otherwise than by: -
3.1.1
a charge in favour of the Contractors bankers of any monies due or to become due under the Contract; or assignment to the Contractors insurers (in cases where the insurers have discharged the Contractors loss or liability) of the Contractors right to obtain relief against any other party liable. Assignment and Novation by the Government The Government may at any time (whether in whole or in part): -
3.1.2
3.2
3.2.1
assign any benefits under this Contract to any third party and the Contractor irrevocably consents to such assignment; or novate the Contract to any third party, and the Contractor irrevocably consents to such novation and undertakes to execute within a reasonable time following notice by the Government or any such third party, all documents necessary to effect such novation.
3.2.2
4
4.1
SUB-CONTRACTING
Sub-Contracting the Works The Contractor shall not sub-contract the whole of the Execution of the Works. Unless otherwise expressly provided in the Contract Documents, the Contractor shall not sub-contract any part of the Execution of the Works without the prior express consent of the S.O.. Any such consent shall not relieve the Contractor from any of its liabilities or obligations under the Contract and the Contractor shall be responsible for the act, omission, negligence, default or breach on the part of any Sub-
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Contractor, Supplier, their sub-sub-contractors and sub-suppliers, agents, servants or workmen as fully as if it were the act, omission, negligence, default or breach on the part of the Contractor, its agents, servants or workmen. Provided that the Contractor shall not be required to obtain such consent for: 4.1.1 4.1.2 4.1.3 the provision of labour; the purchase of Materials which are in accordance with the requirements in the Contract Documents; or the subcontracting to a Designated Sub-Contractor or Designated Supplier of any part of the Execution of the Works in accordance with the Contract. Assignment of Sub-Contractors and Suppliers Obligations If a Sub-Contractor or Supplier has agreed to confer a continuing and assignable benefit on the Contractor for any work executed, or Plant, Materials or services supplied by it, and such benefit extends beyond the expiry of the Defects Liability Period and the Maintenance Period, then upon the expiry of the Defects Liability Period and the Maintenance Period, the Contractor shall, at the request of the Government, assign such benefit to the Government for its unexpired duration. 4.3 4.3.1 Sub-Contractors and Suppliers Warranties The Contractor shall procure that all Sub-Contractors and Suppliers provide a duly executed warranty to the Government in the form attached as Appendix 3. The Contractor acknowledges and agrees that the provision of such a warranty shall not in any way whatsoever affect, limit or in any way relieve the Contractor from any of its liabilities or obligations under the Contract, nor shall it restrict, de-bar, exclude or waive any claims, rights or actions whatsoever by the Government for breach of any such obligation by the Contractor. Without prejudice to the provisions of Clause 4.2, the Contractor shall procure that the benefit of any manufacturers, Sub-Contractors or Suppliers warranties given in respect of any work executed, or Plant, Materials or services supplied by it shall be assignable to the Government. The Contractor shall notify the S.O. of the persons it proposes to engage to undertake on its behalf the design of any part of the Works. The Contractor shall not engage the persons so proposed, save with the prior express consent of the S.O.. The Contractor shall procure that any person undertaking design of any part of the Works on its behalf executes a warranty in favour of the Government in the form attached as Appendix 3A. For the avoidance of doubt it is confirmed that the provision of such a warranty shall not in any way whatsoever affect, limit or in any respect relieve the Contractor from any of his obligations under the Contract, nor shall it restrict, debar, exclude or waive any claims, rights or actions whatsoever by the Government for breach of any such obligation by the Contractor. Bumiputra Sub-Contractors, Suppliers, and Consultants Without limiting the generality of Clauses 4.1 to 4.3, the Contractor shall in the Execution of the Works utilise Bumiputra Sub-Contractors, Bumiputra Suppliers and Bumiputra Consultants approved of by the S.O. to undertake portions of the Execution of the Works, and the total value of such portions undertaken by the Bumiputra sub-Contractors, Bumiputra Suppliers and Bumiputra Consultants shall
4.2
4.3.2
4.3.3
4.4
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be equivalent to not less than thirty percent (30%) of the Contract Sum. For the purposes of this Clause 4.4 only: 4.4.1 Bumiputra Sub-Contractors shall mean Sub-Contractors registered as Bumiputra construction contractors with Pusat Khidmat Kontraktor, Jabatan Perdana Menteri, Kuala Lumpur (and shall, for the avoidance of doubt, not include labour-only sub-contractors); Bumiputra Suppliers shall mean Suppliers who are owned and controlled as to a minimum of fiftyone percent (51%) by Bumiputras and registered with the Ministry of Finance, Malaysia; and Bumiputra Consultants shall mean a firm of consultants that is owned and controlled as to a minimum of fifty-one percent (51%) by Bumiputras and registered with the Ministry of Finance, Malaysia. Within twenty-one (21) Days of the issue of the Letter of Acceptance, the Contractor shall confirm to the S.O. the Bumiputra Sub-Contractors, Bumiputra Suppliers and Bumiputra Consultants which the S.O. has approved of to be engaged in connection with the Execution of the Works, together with a description of the work to be executed, or the Plant, Materials or services to be supplied by each. Any Bumiputra Sub-Contractor, Bumiputra Supplier or Bumiputra Consultant appointed by the Contractor in accordance with the provisions of this Clause 4.4 shall not be replaced except with the prior express consent of the S.O. If the Contractor fails to fulfil its obligations under this Clause 4.4, the Government reserves the right to reallocate any portion of the Works to any Bumiputra Sub-Contractor, Bumiputra Supplier and/or Bumiputra Consultant as it may in its absolute discretion determine, in order to ensure that the total value of the Works undertaken by the Bumiputra Sub-Contractors, Bumiputra Suppliers and Bumiputra Consultants shall be equivalent to not less than thirty percent (30%) of the Contract Sum. The Contractor shall remain fully responsible for any additional cost or delay arising from its non-compliance with the provisions of this Clause 4.4. 4.5 Payments to Sub-Contractors and Suppliers The Contractor shall ensure that all payments due to its Sub-Contractors and Suppliers are made regularly and promptly, in order to ensure the proper, economic and timely Execution of the Works. The Contractor shall not deduct, set-off or withhold any sum from payments due to any of its SubContractors or Suppliers, without having notified the S.O. of this at least fourteen (14) Days prior to doing so, and shall further provide the following information in its notice: 4.5.1 the identity of the Sub-Contractor or Supplier in respect of whom such deduction, set-off or withholding is to be made; the sum which is to be deducted, set-off or withheld from the Sub-Contractor or Supplier; and the reasons for the deduction, set-off or withholding. If, in the S.O.s opinion, the Contractor has failed to demonstrate that it has reasonable cause to deduct, set-off or withhold such sum from the Sub-Contractor or Supplier in question, the S.O. shall so notify the Contractor. If the Contractor nonetheless proceeds to make the deduction, set-off or withholding (or if the Contractor makes such deduction, set-off or withholding without notifying the S.O. in accordance with this Clause), then the Government shall be entitled (upon a certificate from the S.O. to such effect) to make direct payment to the affected Sub-Contractor or Supplier (less any applicable
4.4.2
4.4.3
4.5.2 4.5.3
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retention) of the amount which the Contractor has deducted, set-off or withheld from it, and to recover the amount of the direct payment from the Contractor in accordance with Clause 57.9. It is acknowledged and agreed that neither the terms of this Clause 4.5, nor the Governments exercise of its rights hereunder shall create any privity of contract as between the Government and any SubContractor and/or Supplier. 4.6 Evidence of agreements with Sub-Contractors and Suppliers Without prejudice to Clause 4.4, within twenty-one (21) Days of the issue of the Letter of Acceptance, the Contractor shall notify the S.O. of the Sub-Contractors and Suppliers it proposes to engage in connection with the Execution of the Works, together with a description of the respective portion of the Works to be undertaken by each. In addition, the Contractor shall, within three (3) Months of the Commencement Date, furnish to the S.O. a copy of any agreement it shall have executed with each Sub-Contractor and/or Supplier as of that date, and shall notify forthwith the S.O. in the event of any amendment to its terms.
5
5.1
CONTRACT DOCUMENTS
Language For the purpose of the Project, the language used shall be English. All correspondence, drawings and other documents of whatever kind prepared pursuant to the Contract or for the purposes of the Project shall be in the English language.
5.2
Sufficiency of Contract Documents for Execution of Works The Contractor warrants that it has examined the Contract Documents, and is satisfied that the Contract Documents are sufficient in all respects for the purposes of the Execution of the Works.
5.3 5.3.1
Priority of Contract Documents and Discrepancies Save that the Special Provisions shall prevail over the Conditions of Contract in the event of any discrepancy, ambiguity or inconsistency, the Contract Documents are to be taken as mutually explanatory of one another. The Contractor warrants to the Government that it has examined the whole of the Contract Documents, and has satisfied itself that there are no discrepancies, ambiguities, divergences, inconsistencies, deficiencies, or design or construction impracticalities, or omissions in or between the Contract Documents, save for those of which it shall have notified to the Government prior to the issue of the Letter of Acceptance. If at any time after the issue of the Letter of Acceptance, any discrepancy, ambiguity, divergence, inconsistency, deficiency, or design or construction impracticality, or omission shall be discovered from, in or between any of the Contract Documents, notice shall immediately be given by the party finding the same to the other, and the S.O. shall be entitled to issue an instruction explaining and resolving same, which instruction shall be final and binding on the Contractor. No instruction given by the S.O. under this Clause shall amount to a Variation and the Contractor shall not be entitled to any additional time or payment in respect thereof and the cost of implementing such an instruction shall be deemed to have been included in the Contract Sum. Provided always that no such discrepancy, ambiguity, divergence, inconsistency, deficiency or design or construction impracticality, or omission shall vitiate this Contract.
5.3.2
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5.3.3
The Contractor shall provide within the Contract Sum (and without requiring a Variation therefor) everything necessary for the Execution of the Works according to the true intent and meaning of the Contract Documents taken together, whether the same may or may not be particularly shown or described provided the same can be reasonably inferred therefrom or is necessarily incidental thereto. Nothing contained in the Contract Documents, the Price Breakdown or the Schedule of Rates shall override or modify the application or interpretation of that which is contained in the Articles of Agreement, the Conditions of Contract or the Appendices.
5.3.4
5.4
Documents relating to Site The Government may (but shall not be obliged to) make available to the Contractor prior to the Letter of Acceptance such data on climatic, hydrological and general conditions relating to the Site as shall have been obtained by or on behalf of the Government, but the Government shall have no responsibility for such data, whether as to its accuracy, sufficiency or suitability for use in respect of the Works.
5.5
Documents For Information Only Any document made available by the Government to the Contractor that is expressly marked on its face with the phrase For Information Only shall not form part of the Contract Documents, and the information contained in the same shall strictly be for the Contractors information only. The Government does not warrant the completeness, accuracy or fitness of any matter whatsoever that is contained in and/or emanates from such document, including any representation, opinion or comment, and accepts no responsibility or liability for any such document. It is entirely a matter for the Contractor to determine at its own risk whether and if so, to what extent or in what manner it will use, interpret or rely upon any representation, opinion, comment or other matters arising out of such document. The Contractor warrants that it has obtained its own information in this regard, and has satisfied itself as to the risk, contingencies and other circumstances affecting the Execution of the Works and that it has made adequate allowance for such matters in its Contract Sum.
5.6
Entire Agreement Each party acknowledges that it has had or, (as the case may be), is deemed to have had, full opportunity to include in the Contract any representation or warranty (if any) made to it by the other party leading up to the Contract. It is hereby agreed that the Contract embodies the entire understanding between the parties and there are no representations, promises, terms, conditions, warranties or obligations relied upon by either party, whether oral or written, other than those contained herein.
6
6.1 6.1.1
CUSTODY AND SUPPLY OF DRAWINGS AND DOCUMENTS

Custody of Contract Documents The Contract Documents and other documents provided by the Government, the S.O. or the Contractor shall not, without the consent of the S.O., be used or communicated by the Contractor to a third party. Upon issue of the Certificate of Completion of Making Good Defects, the Contractor shall return to the
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S.O. the Contract Documents, and all other documents provided to it in connection with the Contract, as well as all documents prepared by, or on behalf of, the Contractor in connection with the Contract. 6.1.2 Immediately after the execution of the Articles of Agreement, the Contractor shall provide without charge to the Government (unless the Government shall have been previously so provided) twenty-five (25) certified true copies of the Contract Documents. The Contractor shall, without further charge to the Government, supply to the S.O., in each case in such numbers and in such manner as may be specified in the Contract Documents, copies of all drawings, details, levels, setting-out dimensions and Data submitted by the Contractor and approved by the S.O. in accordance with Clause 7, together with, in the case of all such approved Data, copies of the same in electronic format, and reproducible or physical copies where the Data cannot be reproduced to an equal standard by photocopying. In addition the Contractor shall supply, at no cost to the Government such further copies of such drawings, and other design documents as the S.O. reasonably may request for the use of the Government.
6.1.3
6.2
One Copy of Drawings to be Kept on Site One (1) copy of the Contract Documents, as well as all documents prepared by, or on behalf of, the Contractor in connection with the Contract shall be kept by the Contractor on the Site, and the same shall be available at all reasonable times for inspection and use by the S.O., its delegates and assistants, and by any other person authorised by the S.O. in writing.
7
7.1 7.1.1
CONTRACTORS DESIGN OBLIGATIONS

The Contractors Design Responsibility The Contractor shall be deemed to have satisfied itself as to, and to adopt and accept responsibility for, the designs contained in and reflected by the Contract Documents, as though such designs had been prepared by its own employees. The Contractor shall undertake the design of the Works so as to procure a complete detailed Final Design of each and every part thereof, such that the Works as a whole and each and every part thereof will, when Completed, jointly and severally meet in all respects the requirements of the Contract Documents and in particular, but without limiting the generality of the foregoing, such that the Works as a whole and each and every part thereof will be proper, adequate and be fit for the particular purposes intended by the Contract Documents. If the Contractor considers that any requirement or instruction of the S.O. given after receipt of the Letter of Acceptance may prevent it from meeting or carrying out any of its obligations under Clauses 7.1.1 and 7.1.2, it shall so notify the S.O. as soon as possible after receipt of the same, giving its reasons, whereupon the S.O. will confirm, vary or cancel the relevant requirement or instruction. In the event the S.O. is of the opinion that such confirmed or varied requirement or instruction will prevent the Contractor from meeting or carrying out any of its obligations under Clauses 7.1.1 and 7.1.2, it shall, when confirming or varying the same, issue an instruction to the Contractor (with a copy to the Government) modifying such obligations to such extent, if any, as may in all the circumstances in its opinion be fair and justified.
7.1.2
7.1.3
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7.1.4
Any reference to the design which the Contractor has prepared, or shall prepare or issue for the Works, shall include any design which the Contractor has caused, or shall cause to be prepared or issued by others on its behalf. Works Designed by Contractor The Contractor is responsible for initiating and progressing the production, optimisation, development and finalisation of the design of the Works and for preparing, submitting and ensuring a regular flow of Data to the S.O. in a timely, orderly, logical and consistent manner and so as not to delay or disrupt the regular progress of the design development or the Execution of any part of the Works on the Site. The Contractor shall: (a) in respect of the design of the Works, submit to the S.O. for approval in accordance with the Contract Documents (or upon receipt of a direction from the S.O. to such effect, from time to time and at any time) such Data as shall be necessary to satisfy the S.O. as to the adequacy and fitness for purpose of its design, and in such numbers and in such manner as may be required; furnish all Data to be prepared and submitted under this Clause to the S.O. so as to permit its review and approval of the Data (as well as to allow for any re-submissions) within the period specified therefor in the Contract Documents (or, if no time is therein specified, within twentyeight (28) Days from the S.O.s receipt of the Data). The S.O. shall review any Data prepared and submitted under this Clause, and shall approve such Data within the period specified therefor in the Contract Documents (or, if no time is therein specified, within twenty-eight (28) Days after receiving the Data) and shall signify by a notice that the Data has been approved, or approved with corrections or that the Contractor should re-submit and return one (1) copy of the Data to the Contractor. If the S.O. fails to give notice within such period of twenty-eight (28) Days, the Data shall be deemed to be approved by the S.O.; where any Data is marked by the S.O. with the notes approved, or approved with corrections (or is deemed to be approved by the S.O. under Clause 7.2.1(b)), be entitled to proceed with the physical Execution of such part of the Works to which the Data relates upon the Site provided that the required corrections (if any) are made, notwithstanding that the whole of the Final Design shall not yet have been developed. Once so approved, or deemed to be approved, the Data shall form part of the Final Design and (save where any ambiguity, inaccuracy, unsuitability, inadequacy or other error is subsequently discovered in the Final Design, in which event the Sub-Contractor shall rectify the same without any entitlement to additional time or payment) shall not be departed from except in accordance with Clause 49; where any drawing or document is marked re-submit, correct and re-submit the same, and comply again with the procedure for obtaining the S.O.s approval for such re-submitted Data as set out in this Clause; and not proceed with the physical Execution of any part of the Works to which the Data relates upon the Site unless such Data has been approved (or deemed to be approved) by the S.O. in accordance with this Clause so as to form part of the Final Design. For the avoidance of doubt, the S.O. shall be entitled to approve of the Final Design in parts or stages.
7.2 7.2.1
7.2.2
(b)
(c)
(d)
(e)
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7.2.3
At any time until the design of any part of the Works has become part of the Final Design, the S.O. may give an order to the Contractor relating to the design of such part of the Works (known as a Design Order). If in the opinion of the Contractor, any Design Order is likely to prevent or prejudice the Contractor from or in fulfilling any of its obligations under the Contract in respect of the Execution of the Works, it shall notify the S.O. thereof as soon as practicable after receipt of the Design Order, giving a full statement of its reasons, and the S.O. shall decide whether or not the same shall be carried out. The S.O. may confirm the Design Order or modify the same to such an extent as it considers justified whereupon it shall be treated as a new Design Order and the procedure set out above shall be repeated. Until the S.O. so confirms, the Design Order shall be deemed not to have been given. If such Design Order shall involve any work or supply which is contrary to the Contract Documents or could not be reasonably inferred from the same, then such Design Order shall be treated as an instruction of the S.O. under Clause 49 and Clause 50, otherwise such Design Order shall be implemented by the Contractor at its own cost with no entitlement to any extension of time in respect thereof. Provided that the onus of proving that such work or supply is contrary to, or could not reasonably be inferred from, the Contract Documents shall remain with the Contractor at all times. It shall be a condition precedent to the Contractors entitlement to be paid or reimbursed any amount in respect of its Execution of the Works, that the same shall have been Executed in accordance with the Final Design. If in the S.O.s opinion, the Works have not been Executed in accordance with the Final Design, then notwithstanding the fact that the Works so Executed may nonetheless have satisfied the requirements of the Contract Documents (whether as to functionality, fitness for purpose, or otherwise) the S.O. shall be entitled to reduce and withhold any payment to which the Contractor may be entitled under an Interim Certificate by an amount reflecting (in the S.O.s absolute discretion) the difference between the value of the Works had they been properly Executed in accordance with the Final Design and the value of the Works not having been so Executed. Unless the S.O. shall have instructed the Contractor to re-Execute the Works in accordance with the Final Design , and the Contractor does so to the S.O.s satisfaction, the Contractor shall not be entitled to receive the payment so reduced and withheld. The Contractor shall at all times during the Execution of the Works keep itself informed, and the S.O. duly appraised, of any changes in proven and good design practice, state of the art systems and technology, codes of practice and regulations and of any design developments or enhancements which occur or which may become available during the course of the Execution of the Works, and which could result in an improvement or savings in relation to the Works. The S.O. may instruct the implementation of any such design developments or enhancements, and the Contractor shall (unless it satisfies the S.O. that such design development or enhancement falls outside the provisions of Clause 8.2.2, in which case such instruction shall be treated as an instruction under Clause 49 and Clause 50 shall apply) forthwith implement the same at its own cost and without right to any extension of time. Without prejudice to the generality of Clause 2.6, approval by the S.O., whether under Clause 7.2 or otherwise, of any Data shall not confirm compliance with, nor constitute a change to the Contract Documents, which shall only be subject to change in accordance with the provisions of Clause 49. The Contractor shall be responsible for applying for and obtaining all necessary approvals, permits, licenses and consents from the relevant authorities in Malaysia in respect of the discharge of its design obligations under this Contract. Contractor not to be relieved of Design Responsibility Notwithstanding any of the provisions of the Contract relating to the approval of the design by the S.O.:
7.2.4
7.2.5
7.2.6
7.3
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7.3.1
the Contractor is and shall remain fully responsible for the design of the Works in accordance with the Contract Documents, and no action or failure to act by the Government or the S.O. during the procedures for approval, or in any other system, method or procedure subsequently agreed, shall in any way relieve the Contractor from any of its liabilities or obligations under the Contract, nor shall the same operate as any waiver of due performance by the Contractor nor restrict, de-bar, exclude or waive any claims, rights or actions whatsoever by the Government for any breach of any such obligation; and if there shall be any discrepancy, ambiguity, divergence, inconsistency, deficiency, or design or construction impracticality, or omission from in or between any of the Data or there shall be any failure by the Contractor to submit the design to the S.O. at any stage in due time or otherwise in accordance with the requirements of the Contract Document, then the Contractor shall bear the cost of resolving or rectifying the Data and/or design and the Contractor shall not be or become entitled to any extension of time in respect thereof. The Contractor shall bear the cost under Clause 37 of removal, substitution, remedial works, and/or re-Execution of any work, Plant and/or Materials, or any other part of the Works which as a result of any such discrepancy, ambiguity, divergence, inconsistency, deficiency, or design or construction impracticality, or omission are not in accordance with the Contract and of all claims, damages, expenses and/or losses occasioned thereby and shall not be entitled to any extension of time in respect of such removal, substitution, remedial works and/or re-Execution. Supplementary Information During the Execution of the Works, the Contractor may request from the S.O. additional information relating to the Works, and the S.O. may (but shall not be obliged to) do so as soon with a reasonable time after receipt of such request. The Contractor shall notify the S.O. as soon as reasonably practicable, whenever the Execution of the Works is likely to be delayed or disrupted unless any such information is issued by the S.O. within a reasonable time. Such notice shall include details of the information required to be issued by the S.O., the reasons for and the date by which the same is required, and of any delay or disruption likely to be suffered if the same is not so issued.
7.3.2
7.4
7.5
Modification of Data The Contractor shall upon becoming aware of any Data (whether forming part of the Final Design or otherwise) not being in accordance with the Contract Documents, notify the S.O. and unless otherwise instructed by the S.O., shall modify the same at its own cost and without any entitlement to any extension of time, in order to ensure that the Data satisfies the requirements of the Contract Documents and shall submit such modifications to the S.O. for his approval in accordance with Clause 7.2.
7.6
Contractor to provide information relating to fixings and connections The Contractor shall provide, in accordance with the Contract Documents and within the time required by the Programme, drawings showing how the Plant and/or Materials are to be affixed and any other information required for: -
7.6.1 7.6.2
preparing suitable foundations or other means of support; providing suitable access on the Site for the Plant and Materials for incorporation into the Works and to the place where the Plant and Materials are to be incorporated into the Works; and
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7.6.3 7.7
making necessary connections to the Plant and/or Materials. Use of Documents It is expressly agreed between the parties that all Data and all other documents prepared by, or on behalf of, the Contractor in connection with the Contract, shall be the absolute property of the Government and shall not be utilized or retained by the Contractor for any purposes other than with the permission of the Government.
7.8
Contractor to use S.I. Units The Contractors drawings, plans, specifications and documents shall use the S.I. Units (System International Units) of measurement.
8
8.1
CONTRACTORS GENERAL RESPONSIBILITIES

Contractors Responsibility The Contractor shall, subject to the provisions of the Contract, and with due care and diligence, Execute the Works in accordance with the Contract, and carry out its other obligations under and/or in relation to and/or reasonably to be inferred from the Contract and provide all Equipment, Temporary Works, Plant, Materials, labour (including the supervision thereof) transport to and from the Site, offices, workshops, and all other resources and things, whether of a temporary or permanent nature, required in or for the proper Execution of the Works and the carrying out of such obligations according to the true intent and meaning of the Contract Documents taken together, where the necessity for providing the same is specified in or necessarily to be inferred from the Contract Documents.
8.2
Contractors Representations and Warranties The Contractor warrants that: -
8.2.1
it is fully experienced in the design, construction, testing, commissioning, maintenance and operation of and training in respect of major international projects of a similar scope, complexity, size, and technical sophistication to the Project and that it possesses the high level of skill and expertise commensurate with that experience which it will make available to the Government. In so doing the Contractor recognises and acknowledges that the Government is relying on the provision by the Contractor of such skill and expertise in and about the Execution of the Works; the Works will be Executed using proven and good design practices, state of the art systems and technology and accepted professional standards, codes of practice and regulations which are in force at the date of the Letter of Acceptance or are reasonably foreseeable by an experienced international contractor as likely to come into force during the Execution of the Works and which are consistent with the requirements of the Contract Documents; the personnel to be employed by the Contractor in or about the Execution of the Works will be properly skilled, competent and experienced having regard to the nature and extent of the Works;
8.2.2
8.2.3
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8.2.4
it is adequately and properly financed to meet all the financial obligations which it may be required to assume under the Contract; it will perform its obligations under the Contract in an expeditious and economical manner and shall at all times provide such Equipment, Temporary Works, Plant, Materials, labour (including the supervision thereof), transport and all other resources and things whether of a temporary or permanent nature, required in or for the proper Execution of the Works in sufficient quantity and quality to maintain progress so as to achieve Completion of the Works by the Completion Date; the Works when Completed will, consistent with the use of the said expertise, experience, ability and skill, meet the requirements of, and conform to the Contract Documents; and it has performed and will continue to perform its obligations under the Contract in accordance with the Statutory Requirements and with all directions and instructions properly issued by the S.O.. Warranty Period Without prejudice to its other obligations under this Contract, the Contractor shall warrant that the Permanent Works will, for a period of five (5) years from the date of the issuance of the Certificate of Completion of Making Good Defects (the Warranty Period) be free of any defect, inadequacy or unsuitability of design, manufacture, workmanship, Plant and/or Materials or default in respect of the requirements of the Contract Documents which shall arise or become apparent in the Permanent Works or any part thereof. In the event of the occurrence of any such defect, inadequacy, or unsuitability of design, manufacture, workmanship, Plant and/or Materials or default, notice of the same shall be given by the Government to the Contractor, who shall forthwith submit to the Government for its approval its proposal for remedying the same at no cost to the Government. Upon receipt of the Governments approval to its proposals (or any amendment thereto) the Contractor shall forthwith, at such time as may be convenient to the Government, implement such proposals with all due expedition. If the Contractor shall fail to submit its proposals within a time considered reasonable by the Government, or if such proposals are in the Governments opinion unsatisfactory, the Government may employ and pay other persons to carry out the necessary remedial work, or carry out such work itself and the Contractor shall be liable for all claims, damages, expenses and/or losses in connection with such remedial work, which shall be a debt due from the Contractor to the Government. The Contractor shall at all times, indemnify and hold harmless the Government from and against all claims, damages (including all consequential, special or indirect damages), expenses and/or losses (including losses of any profit, revenue, contract or other business opportunity (whether direct or indirect)) which the Government may have incurred, or may in its reasonable opinion incur, in connection with any defect, inadequacy or unsuitability of design, manufacture, workmanship, Plant and/or Materials or default in respect of the requirements of the Contract Documents. The Warranty Period shall: (a) in respect of any part of the Permanent Works requiring repair or replacement (including, for the avoidance of doubt any part of the Works which requires repair or replacement as a result of an endemic failure as certified by the S.O. pursuant to Clause 47.5) commence anew for a further period of five (5) years from the date of its repair or replacement; and
8.2.5
8.2.6
8.2.7
8.3 8.3.1
8.3.2
8.3.3
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(b)
in respect of any part of the Permanent Works which, while not requiring repair or replacement, was affected by such repair or replacement under Clause 8.3.3(a), be extended by a period equal to the time during which such part of the Permanent Works was out of operation.
8.3.4
The Contractor shall on or before the issuance of a Certificate of Completion of Making Good Defects, provide to the Government an on-demand bond from a bank established in Malaysia, and to which the Government has given its prior express approval, in a sum equal to the amount specified in Appendix 1 and in the form appearing in Appendix 6, as security for the breach of any warranty given by the Contractor pursuant to Clause 8.3.1 and/or the due observance and performance by the Contractor of its obligations during the Warranty Period (the Warranty Bond). The Contractor shall maintain and renew if necessary the said Warranty Bond, so that it shall remain in full force and effect until the expiry date set out in Appendix 1 after which no claim shall be made against it. The cost of obtaining the Warranty Bond shall be at the expense of the Contractor and shall be deemed to have been included in the Contract Sum. The Governments rights under this Clause 8.3 are without prejudice to any other right or remedy which it may have (whether contractual, statutory, legal, equitable or otherwise). Site Operations and Methods of Construction The Contractor shall take full responsibility for the adequacy, suitability, appropriateness, stability and safety of all Site operations and methods of construction.
8.3.5
8.4
8.5
Works as an Integral Part of the Project The parties agree that the principal objective of the Contract is the economic and timely Completion of the Project of which the Works form an integral part. As an experienced contractor upon whose skill and expertise in the planning, programming and co-ordination of construction activities the Government is relying, the Contractor hereby represents and warrants: -
8.5.1
that it recognises that the process of producing, optimising, developing and finalising the design of the Works will require the closest consultation, co-operation, communication and co-ordination between itself, the S.O. and the Government. The Contractor further recognises that it will be necessary for the parties to develop and agree systems, methods and procedures to enable that process to be carried out properly and efficiently; that it fully appreciates the importance of the integration of the Works with the Related Works and the need to fully and completely co-ordinate the Works with the Related Works and that as a consequence: (a) the Contract Sum is inclusive of the cost of proper compliance with the Contractors obligations under this Clause and Clause 29; and it has programmed and will continue to programme the Execution of the Works in such a way as to ensure its compliance with its obligations in respect of Related Works as set out in Clause 29.
8.5.2
(b)
8.5.3
that the Plant and Materials supplied under the Contract shall be manufactured specifically for the Contract, be new and unused, and will jointly and severally meet the requirements of the Contract and,
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in particular, but without limiting the generality of the foregoing, such that the Works as a whole and each and every part thereof shall meet the requirements of the Contract Documents; 8.5.4 notwithstanding acceptance by the Government, that all Plant and/or Materials supplied under the Contract, will be free from defects in design, material and workmanship and will jointly and severally meet the requirements of the Contract Documents. Associated Contracts The Contractor shall neither: 8.6.1 8.6.2 make any claim against the Government under the Contract or for breach of it; nor raise any defence, set-off or withholding with respect to any debt or claim made by the Government against the Contractor under the Contract or for breach of it, by virtue of any act, default or neglect of the Contractor whilst carrying out its obligations under the Contract, or any other agreement it has or will have with the Government.
8.6
ARTICLES OF AGREEMENT
The Contractor shall enter into and execute the Articles of Agreement, to be prepared and completed at the cost of the Government, in the form annexed to the Conditions of Contract with such modifications as may be necessary.
10
10.1 10.1.1
PERFORMANCE SECURITY
Performance Bond The Contractor shall within twenty-one (21) Days of the Commencement Date provide to the Government an on-demand bond from a bank established in Malaysia, and to which the Government has given its prior express approval, in a sum equal to the amount specified in Appendix 1 as being from time to time applicable and in the form appearing in Appendix 2, for the due observance and performance by the Contractor of the Contract (the Performance Bond). The Contractor shall maintain and renew if necessary the said Performance Bond so that it shall remain in full force and effect until the expiry date set out in Appendix 1 after which no claim shall be made against it. The cost of obtaining the Performance Bond shall be at the expense of the Contractor and shall be deemed to have been included in the Contract Sum. If the Contractor fails or refuses to deliver a duly executed Performance Bond to the Government within the time specified, the Government may (but shall not be obliged to) terminate the Contractors employment in accordance with the terms of this Contract. If the Government has not exercised its option to terminate this Contract, or if the Government so instructs, the Contractor shall proceed with the Works. In that case, the Government shall, without prejudice to its other rights or remedies, be entitled to withhold from any sums due or becoming due to the Contractor in respect thereof until either a duly executed Performance Bond is delivered to the Government (whereupon the sums withheld up to that point in time shall be refunded to the Contractor), or an amount equal to the amount specified in Appendix 1 has been withheld by the Government (the Security Deposit). The Government shall have the same rights in relation to the Security Deposit, as it would have had in relation to the Performance Bond had it been delivered by the Contractor in accordance with Clause 10.1.1. 22
10.1.2
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10.1.3
In lieu of the provision of a Performance Bond or a Security Deposit, the Government may (but shall not be obliged to), at the Contractors request, agree to withhold payment of ten per cent (10%) of all monies due or becoming due to the Contractor in each Interim Payment until an amount equal to the amount specified in Appendix 1 has been withheld by the Government has been withheld. Such amounts withheld under this Clause shall constitute a retention sum (the Security Retention). The Government shall have the same rights in relation to the Security Retention, as it would have had in relation to the Performance Bond had it been delivered by the Contractor in accordance with Clause 10.1.1. The Contractor acknowledges and agrees that the Government may make a demand upon the Performance Bond at any time in the Governments absolute discretion. The Contractor further agrees that the Government shall be free to make any demand on, or to apply the proceeds of any demand upon the said Performance Bond in any way as it may in its absolute discretion deem fit, without any interference by the Contractor or any attempt by it to prevent, prohibit or restrict the making of any such demand or application, and accordingly the Contractor undertakes not to interfere or to prevent, prohibit or restrict the making of any such demand, or to attempt to do so. The Government shall be entitled to deduct from or set-off against the proceeds of any demand upon the Performance Bond, all claims, damages, expenses and/or losses it may incur or have incurred in connection with the Contractors failure to ensure the due and proper performance of its obligations under this Contract. The Government shall be entitled to utilise the Security Deposit or Security Retention in any way as it may, in its absolute discretion deem fit, including without limitation, deducting from or setting-off against the same all claims, damages, expenses and/or losses it may incur or have incurred in connection with the Contractors failure to ensure the due and proper performance of its obligations under this Contract. For the avoidance of doubt, the Governments rights in relation to the Performance Bond, Security Deposit or Security Retention shall be without prejudice to its other rights or remedies (whether contractual, statutory, legal, equitable or otherwise), and the Government shall be entitled to call on the Performance Bond or use the Security Deposit or Security Retention to recover any overpayment or excess payment by the Government to the Contractor. The Performance Bond, Security Deposit or Security Retention (or any balance thereof remaining for the credit of the Contractor) shall be refunded upon the expiry date therefor set out in Appendix 1. Parent Company Guarantees The Contractor shall within twenty-one (21) Days of the Commencement Date, provide guarantees from each of the companies specified in Appendix 1 in the form appearing in Appendix 4. The cost of obtaining the guarantees shall be borne by the Contractor, and shall be deemed to have been included in the Contract Sum.
10.1.4
10.1.5
10.1.6
10.2
10.3
Right to terminate If the Contractor shall fail to: -
10.3.1 10.3.2
maintain and/or renew the Performance Bond in accordance with Clause 10.1.1; or provide the guarantee mentioned in Clause 10.3,
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then the Government may, without prejudice its other rights or remedies, by notice forthwith terminate the Contractors employment under this Contract. In the event of such termination the provisions of Clauses 60.2, 60.3and 60.4 shall apply.
11
11.1
INSPECTION OF SITE, ETC

The Contractor warrants that it has inspected and examined the Site and its surroundings, as well as all information available in connection therewith, and warrants that it has satisfied itself as at the date of the Letter of Acceptance as to: -
11.1.1 the form and nature of the Site, including the nature of the ground and sub-soil, and the geological, geographical, natural, hydrological and climatic conditions of the Site; 11.1.2 the extent and nature of the Works, and the availability of all Equipment, Temporary Works, Plant, Materials, labour (including the supervision thereof) transport to and from the Site, offices, workshops, and all other resources and things, whether of a temporary or permanent nature, required in or for the proper Execution of the Works or any part thereof; 11.1.3 the means of communication with the Site, as well as the means and availability of access to and egress from the Site, whether by land, water and/or air, and the requirements pertaining to track possession, and any other statutory undertaker or local authority, line block and all other restrictions on Site possession as may be determined in accordance with the rules and regulations of KTMB; 11.1.4 the whereabouts of existing services, utilities and mains and the availability and quality of water, telecommunications and electrical power; 11.1.5 the risk of injury or damage to property adjacent to the Site or to the occupiers of such property; 11.1.6 the existence of forest, vegetation and foliage; 11.1.7 conditions affecting shipping and transportation, including the availability of port and airport facilities and congestion; 11.1.8 the Statutory Requirements as well as all applicable local customs; 11.1.9 the sequence and timing of any Related Works, and all elements of interface between the Related Works and the Works; and 11.1.10 all other matters necessary for Executing the Works or any part thereof, and in general the Contractor warrants that it has made all independent inquiries, and has satisfied itself fully as to the nature, extent and practicality of the Works and in all matters whatsoever that might in any way have affected the Contract Sum and the Contractor agrees to assume all risks in connection with the same. 11.2 Any information forwarded by the Government to the Contractor shall not relieve the Contractor from any of its liabilities or obligations undertaken pursuant to the provisions of this Clause 11.
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Notwithstanding anything to the contrary contained in such information, the Government gives no warranty with respect to, and shall have no liability in respect of, such information either as to their accuracy or sufficiency or as to how they should be interpreted, and the Contractor makes use of and interprets the same entirely at its own risk. Any act, omission, neglect, default or breach on the part of the Contractor in obtaining any information in relation to the matters referred to in Clauses 11.1.1 to 11.1.10, or in any other matters shall not relieve the Contractor from its obligation to Execute the Works in strict accordance with the Contract Documents. 11.3 The Contractor shall not be entitled to any additional time or payment on account of any misunderstanding in respect of the matters referred to in Clauses 11.1.1 to 11.1.10, or on the ground that inaccurate or inadequate information was made available by or on behalf of the Government, or that the Contractor could not have foreseen any matter which could affect or have affected its obligation to Execute the Works in strict accordance with the Contract Documents.
12
SUFFICIENCY OF CONTRACT SUM

The Contractor shall be deemed to have satisfied itself as to the correctness and sufficiency of the Contract Sum and of the rates and prices stated in the Price Breakdown and the Schedule of Rates, all of which rates and prices shall, except where otherwise provided in the Contract, cover all its obligations under the Contract (including, but without limitation, those in respect of the supply of Equipment, Temporary Works, Plant, Materials, labour or services or of contingencies for which there is a Provisional Sum) and all matters and things necessary for the Execution of the Works according to the true intent and meaning of the Contract Documents taken together whether the same may or may not be particularly shown or described provided the same can be reasonably inferred therefrom or is necessarily incidental thereto.
13
13.1
WORK TO BE IN ACCORDANCE WITH CONTRACT

The Contractor shall Execute the Works in strict accordance with the Contract Documents and to the satisfaction of the S.O., and for that purpose and to such satisfaction, shall complete the Execution of the Works (including any design and the selection of any specifications for any kinds and standards of Plant, Materials and/or workmanship to be used in the Execution of the Works), according to the true intent and meaning of the Contract Documents taken together whether the same may or may not be particularly shown or described provided the same can be reasonably inferred therefrom or is necessarily incidental thereto. The Contractor shall comply with and adhere strictly to any instructions of the S.O. properly issued on any matter, whether mentioned in the Contract or not, touching or concerning the Works. The Contractor shall take instructions only from the S.O. or, subject to the provisions of Clause 2, from any delegate or assistant of the S.O.
13.2
14
14.1
PROGRAMME
Programme to be Submitted The Contractor shall submit to the S.O. within twenty-one (21) Days of the issue of the Letter of Acceptance the following documents in form and substance acceptable to, and for approval by, the S.O.: -
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14.1.1 an overall Execution programme covering the sequence, method and timing of all activities to be performed on the Site (or any part thereof) in relation to the Execution of the Works and the integration of the Works with the Related Works (including (without limitation) the work of sub-contractors and suppliers, the manufacture, procurement and other off-Site activities), and for this purpose, the Contractor shall prepare such programme in consultation with any other contractors responsible for carrying out the Related Works to ensure that all steps are taken to co-ordinate and to integrate the Execution of the Works and the Related Works so as to minimise any interference with, or delays to the Works and the Related Works; 14.1.2 a detailed cash flow forecast, in quarterly periods, of all payments to which the Contractor expects to be entitled under the Contract, and showing the relationship between expenditure and the progress of the Execution of the Works, with the aim of synchronising cash flow to performance; and 14.1.3 the Contractors proposals for complying with his obligations concerning the co-ordination of Related Works under Clause 29, in order to foster a co-ordinated and integrated approach to the same.
14.2 14.2.1
Revised Programme Throughout the progress of the Execution of the Works, the Contractor shall submit to the S.O. for approval, and where set out in the Contract Documents in accordance with any specified requirements therein: (a) a detailed programme (together with updated forecasts of labour/Equipment utilisation) for each consecutive three (3) Month period each such programme to be consistent with the programme referred to in Clause 14.1.1 (as may be amended by the award of any extension of time) and to be in respect of a period of at least one (1) Month of the immediately preceding programme. The first such programme will, unless otherwise specified in the Contract, be submitted within two (2) Months of the commencement of the Works to which the detailed programme referred to in Clause 14.1.2 relates and each subsequent such programme shall be submitted at Monthly intervals thereafter; and two (2) weeks, or such other time as may be fixed by the S.O., before the commencement of any element of the Works to which Clause 29 applies, a detailed programme and method statement signed by the Contractor and the contractor responsible for the appropriate Related Works, such programme to be consistent with the programme referred to in Clause 14.1.1 (as may be amended by the award of any extension of time) and showing the sequence, method and timing that the Contractor intends to adopt in order to comply with its obligations under Clause 29, or in the event the Contractor and the contractor responsible for the appropriate Related Works are unable to agree the said sequence, method and timing, details of those issues that are preventing such agreement.
(b)
14.2.2
The Contractor shall supply to the S.O. at such times as the S.O. may direct during the progress of the Execution of the Works, such further or special written particulars and information as the S.O. may require to enable a progress record to be maintained in respect of the Works.
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14.2.3
If at any time it should appear to the S.O. that the actual progress of the Works does not conform to the programme to which approval has been given under Clause 14.1 or Clause 0, the Contractor shall produce, at the request of the S.O. for approval, a revised programme showing the modifications to such programme necessary to ensure completion of the Works by the Completion Date and to take account of any extensions of time granted pursuant to Clause 42 or any Acceleration Measures instructed pursuant to Clause 44. Cash Flow Estimates to be Revised The Contractor shall, if and when required to do so by the S.O., supply revised cash flow estimates amended where necessary to reflect the actual progress of the Execution of the Works and the programmed future progress.
14.3
14.4 14.4.1
Contractor not Relieved of Duties or Responsibilities Upon approval by the S.O., the overall Execution programme referred to in Clause 14.1.1 shall become the programme for the Works (the Programme). The S.O.s approval of the Programme merely signifies its understanding of the Contractors proposed sequence, method and timing for the Execution of the Works and the integration of the Works with the Related Works, and shall in no way relieve the Contractor from any of its liabilities or obligations under the Contract. No approval by the S.O. shall create any obligation or liability on the part of the Government, nor shall any such approval establish the Programme as part of the Contract. Unless otherwise expressly provided in the Contract Documents, the methods of integrating the Execution of the Works with the Related Works, the choice of methods of working and Temporary Works, the programming of the Works and the deployment of the Contractors resources on the Site shall be the sole responsibility of the Contractor. Contractors failure to comply
14.4.2
14.5
In the event that the Contractor fails to comply with the requirements of Clauses 14.1 to 14.4, without prejudice to any other rights or remedies which may be available to the Government or the S.O., the S.O. shall be entitled to certify that ten percent (10%) of monies due in any Interim Certificate to which the Contractor may be entitled be retained by the Government, in addition to such other retentions as may be allowed under the terms of this Contract, until such time that the S.O. is satisfied that the Contractor has complied with the requirements of Clauses 14.1 to 14.4. The amount retained by the Government shall only be released to the Contractor, without interest, upon a certificate by the S.O. to such effect.
15
15.1
CONTRACTORS SUPERINTENDENCE
Contractors Superintendence - General The Contractor shall give or provide all necessary superintendence for and during the Execution of the Works and for the proper carrying out of its obligations under the Contract. Such superintendence shall be given by such number of persons having adequate knowledge of and skill in the operations to be carried out as may be requisite for the Execution of the Works and the performance of the said obligations. Each part of the Works shall have sufficient such persons appropriate to the magnitude
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and type of work being carried on from time to time, and at any time prior to the issue of the Certificate of Completion of Making Good Defects and Certificate of Completion of Maintenance, at the several premises of the Contractor and any Sub-Contractors and Suppliers and at each part of the Site from time to time.
15.2
Appointment of Contractors Representatives Without prejudice to the generality of Clause 15.1, from the Commencement Date until the issue of a Certificate of Completion of Making Good Defects and a Certificate of Completion of Maintenance (or such other time as the S.O. may instruct), the Contractor shall provide suitably qualified and experienced persons to act in the following capacities: -
15.2.1 a representative, who shall be resident in a location convenient to the Site, to give his whole time to the superintendence of the Works and to be in full charge thereof. Such representative shall be known as the Project Manager (the Project Manager); 15.2.2 a representative, who shall be resident in a location convenient to the Site, to give his whole time to the assistance of the Project Manager in the performance of his duties. Such representative shall be known as the Deputy Project Manager (the Deputy Project Manager); 15.2.3 a representative who shall give his whole time to the superintendence of the Works at the Site. Such representative shall be known as the Construction Superintendent (the Construction Superintendent); 15.2.4 at each of its premises and those of any Sub-Contractor and Supplier where, and during such period as, parts of the Works are being designed and/or Executed and when so required by the S.O., subrepresentatives to supervise such design and/or Execution; 15.2.5 a representative who shall be responsible for preparing or procuring the preparation of the operation and maintenance instruction manuals and parts lists, and as-built drawings of the Permanent Works required by the Contract Documents and for superintending the Contractors maintenance obligations under the Contract. Such representative shall be known as the Maintenance Supervisor (the Maintenance Supervisor); 15.2.6 a representative who shall be responsible, in accordance with the Contract Documents, for the coordination of the design of the Works, the Plant and each element with the others, and for the coordination of the design of the Works with the design of Related Works, to ensure that the Works when complete will meet the requirements of the Contract Documents. Such representative shall be known as the Design Co-ordinator (the Design Co-ordinator); 15.2.7 a representative who shall be responsible for and give his full time and attention to the management and effective operation of the Quality Assurance Plan. Such representative shall be known as the Quality Assurance Manager (the Quality Assurance Manager);
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15.2.8 a representative who shall be responsible for all safety matters related to the Works, and who shall give his full time and attention to the management and effective operation of the Safety Plan. Such representative shall be known as the Safety Manager (the Safety Manager); and 15.2.9 a representative who shall be responsible for all environmental management matters related to the Works, and who shall give his full time and attention to the management and effective operation of the Environmental Management Plan. Such representative shall be known as the Environmental Manager (the Environmental Manager). 15.3 Restrictions on Representatives The Project Manager, Deputy Project Manager, Construction Superintendent, Operations and Maintenance Supervisor, Design Co-ordinator, Quality Assurance Manager, Safety Manager and Environmental Manager and all the sub-representatives shall: 15.3.1 be approved of by the S.O. (which approval may at any time be withdrawn without the S.O. being required to state any reason therefor in which event the relevant personnel shall be replaced immediately by another representative authorised and approved as aforesaid); not be replaced without the prior express consent of the S.O.; be empowered to receive and shall receive on behalf of the Contractor any acceptance, acknowledgement, approval, certificate, communication, confirmation, consent, demand, determination, direction, instruction, notice, order, proposal or request given to him by the S.O.; be fluent in the English language; and be competent and duly authorised by the Contractor. Without in any way limiting the generality of the meaning of the word competent where used in Clause 15.3, a representative or person shall not be regarded as competent unless he is qualified by appropriate professional qualifications and experience. English speaking persons The Contractor shall provide and shall, if so required by the S.O., procure that any Sub-Contractor and Supplier shall provide competent and authorised English speaking persons on all parts of the Works (including premises where design or manufacture is being undertaken) whose English shall be sufficiently fluent to allow them to discuss and explain the technical aspects and design of the part of the Works in question. Such persons shall be approved by the S.O. and must be present at any part of the Works where work is in progress. The English speaking person on any part of the Works shall also be sufficiently fluent in the language or languages of the Contractors or Sub-Contractors or Suppliers staff, (as the case may be) to allow him to discuss and explain the technical aspects and design of the part of the Works in question.
15.3.2 15.3.3
15.3.4 15.3.5
15.4
16
16.1
CONTRACTORS EMPLOYEES
Contractor to provide skilled employees The Contractor shall (and, shall where appropriate, procure that any Sub-Contractor and Supplier shall) provide and employ on the Site in connection with the Execution of the Works: -
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16.1.1 only such engineers and technical assistants as are skilled and experienced in their respective callings (which callings must be appropriate in the circumstances) and such engineers, managers, subrepresentatives, foremen and leading hands as are competent to give proper supervision to the work they are required to supervise; and 16.1.2 only such engineers, technical assistants and designers assistants as are skilled and experienced in their respective callings (which callings must be appropriate in the circumstances) and such engineers, managers, sub-representatives, foremen and leading hands as are competent to give proper superintendence in respect of the Execution of the Works; and 16.1.3 such skilled, semi-skilled and unskilled labour as is necessary for the proper and timely fulfillment of the Contractors obligations under the Contract. 16.2 Removal of Contractors Employees The S.O. may in its absolute discretion and without assigning any further reason therefor direct the Contractor to remove forthwith from the Site any person employed by the Contractor or any SubContractor or Supplier in or about the Execution of the Works who, in the sole opinion of the S.O., has misconducted himself, or is inappropriately qualified, or is incompetent or negligent in the performance of his duties, or whose presence on the Site is otherwise considered by the S.O. to be undesirable, and such person shall not be again employed in connection with the Contract without the written permission of the S.O.. Any person so removed shall be replaced as soon as possible by a competent substitute approved by the S.O.. 16.3 Contractor not to remove Representatives The Contractor shall not remove from the Works, the Project Manager and/or any of the representatives appointed under Clause 15.2 without the prior express consent of the S.O., and if the S.O.s consent is given, the Contractor shall be responsible for replacing such person or persons forthwith with a person or persons having equivalent skills, qualifications and experience who shall have been previously approved by the S.O.. 16.4 No extension of time The Contractor shall not be entitled to any additional time or payment incurred by it in connection with any direction, objection, non-approval or withdrawal of approval from the S.O. under Clauses 15 or 16.
17
SETTING-OUT
The Contractor shall be responsible for: (a) the accurate setting-out of the Works and the correctness of the position, levels, dimensions and alignment of all parts of the Works; and the provision of all necessary instruments, appliances and labour in connection with the foregoing responsibilities.
(b)
If, at any time during the Execution of the Works, any error appears in the position, levels, dimensions or alignment of any part of the Works, the Contractor, on being required so to do by the S.O., shall, at
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its own cost and with no entitlement to any extension of time, rectify such error to the satisfaction of the S.O.. The checking of any setting-out or of any line or level by the S.O. shall not in any way relieve the Contractor of its responsibility for the accuracy thereof and the Contractor shall carefully protect and preserve all bench-marks, sight-rails, pegs and other things used in setting-out the Works.
18
BOREHOLES AND EXPLORATORY EXCAVATION

Unless otherwise expressly provided in the Contract Documents, if at any time during the Execution of the Works, the S.O. requires the Contractor to undertake borehole investigations or to carry out exploratory excavation, such requirement shall be the subject of an instruction in accordance with Clause 49, unless an item or a Provisional Sum in respect of such work is included in the Schedule of Rates or Price Breakdown or the necessity for the same is, in the sole opinion of the S.O., reasonably to be inferred from the Contract Documents, or unless such boreholes or exploratory excavation are required for testing purposes in accordance with Clause 34.
19
19.1
SAFETY, SECURITY AND PROTECTION OF THE ENVIRONMENT

General Obligations The Contractor shall, throughout the Execution of the Works: -
19.1.1 have full regard for the safety of all persons entitled to be upon the Site and keep the Site (so far as the same is under its control) and the Works (so far as the same are not taken over pursuant to Clause 44(a) of the Conditions of Contract by the Government) in an orderly state appropriate to the avoidance of danger to such persons; 19.1.2 provide and maintain at its own cost all lights, guards, fencing, warning signs and watching, when and where necessary or required by the S.O. or by any duly constituted authority, for the protection of the Works or for the safety and convenience of the public or others; and 19.1.3 take all reasonable steps to protect the environment on and off the Site, and to avoid damage or nuisance to persons or to property of the public or others resulting from pollution, noise or other causes arising as a consequence of its methods of operation. 19.2 Sharing of Site If, pursuant to Clause 29, the Government shall cause other contractors to carry out Related Works on the Site with their workmen, then without prejudice to its obligations under Clause 19.1, the Contractor shall have full regard to the safety of such persons and shall keep the Site in an orderly state appropriate to the avoidance of danger to them.
20
20.1
CARE OF WORKS
Contractor to take full responsibility for care of the Works The Contractor shall take full responsibility for the care of the Works including all Equipment, Plant and/or Materials (and, without limitation for the care of any works carried out on Site by other
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contractors which works the Contractor has taken over with the Site) from the Commencement Date until the date of issue of the Certificate of Practical Completion, when the responsibility for the said care shall pass to the Government. Provided always that: 20.1.1 if the S.O. issues a Certificate of Partial Occupation pursuant to Clause 44(a) of the Conditions of Contract for any part of the Permanent Works, the Contractor shall cease to be liable for the care of that part from the date of issue of the Certificate of Partial Occupation, when the responsibility for the care of that part shall pass to the Government; 20.1.2 the Contractor shall take full responsibility for the care of any outstanding Works and Plant and/or Materials and for incorporation therein which it undertakes to finish during the Defects Liability Period, until a Certificate of Completion of Making Good Defects has been issued; 20.1.3 the Contractor shall take full responsibility for the care of the Works or any part thereof which require replacement, supply or remedy as a result of normal wear and tear (inclusive of all consumable items) during the Maintenance Period, until a Certificate of Completion of Maintenance has been issued; and 20.1.4 the Contractor shall take full responsibility for any endemic failure certified by the S.O. pursuant to Clause 47.5 and for the care of the Works or any part thereof which require replacement or remedy during the Warranty Period (including as a result of endemic failure as certified under Clause 47.5), and for any part of the Works affected thereby, for the period that such Works are under repair or remedy by the Contractor. 20.2 Responsibility to Rectify Loss or Damage If any loss or damage from any cause whatsoever occurs to the Permanent Works, or to any Plant and/or Materials for incorporation therein, during the period for which the Contractor is responsible for the care thereof, other than the Governments Risks, the Contractor shall, at its own cost, rectify such loss or damage so that the Permanent Works conform in every respect with the provisions of the Contract to the satisfaction of the S.O. For the avoidance of doubt and without limiting the Contractors liability under the remainder of the Contract, the Contractor shall also be liable for any loss or damage to the Permanent Works occasioned by him in the course of any operations carried out by him for the purpose of complying with its obligations under Clauses 47 and 48, as well as Clause 59 of the Conditions of Contract. 20.3 Loss or Damage Due to Governments Risks In the event of any such loss or damage occurring as a result of any of the Governments Risks, the Contractor shall, if and to the extent required by the S.O., rectify the loss or damage, and the S.O. shall determine an addition to the Contract Sum in accordance with Clause 50 and shall notify the Contractor accordingly, with a copy to the Government. In the case of a combination of risks causing loss or damage, any such determination shall take into account the proportional responsibility of the Contractor and the Government. 20.4 Governments Risks The Governments Risks are: -
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20.4.1 war, hostilities (whether war be declared or not), invasion, act of foreign enemies; 20.4.2 rebellion, revolution, insurrection, or military or usurped power, or civil war; 20.4.3 ionising radiations, or contamination by radio-activity from any nuclear fuel, or from any nuclear waste from the combustion of nuclear fuel, radio-active toxic explosive, or other hazardous properties of any explosive nuclear assembly or nuclear component thereof; 20.4.4 pressure waves caused by aircraft or other aerial devices travelling at sonic or supersonic speeds; 20.4.5 riots, commotions or disorders, unless solely restricted to employees of the Contractor or of its SubContractors and arising from the Execution of the Works; 20.4.6 loss or damage of which the direct and proximate cause was the use or occupation by the Government of any part of the Permanent Works, except as may be provided for in the Contract; and 20.4.7 acts of terrorism or any activities involving the use of force or other violent means designed to intimidate any section of the general public for the purpose of advancing a political, religious or ideological cause. 20.5 Contractors Risks Save as may be expressly provided in the Contract, the Contractor bears all risks in the Execution of the Works other than the Governments Risks.
21
21.1
DAMAGE TO PERSONS AND PROPERTY

Contractor to Indemnify Government Unless otherwise expressly provided in the Contract Documents, the Contractor shall indemnify the Government against all claims, damages (including all consequential, special or indirect damages), expenses and/or losses (including losses of any profit, revenue, contract or other business opportunity (whether direct or indirect)) which the Government may have incurred, or may in its reasonable opinion incur, in respect of: -
21.1.1 21.1.2
death of or injury to any person; and loss of or damage to any property, which may arise out of, or in connection with the Execution of the Works (including in consequence of the defective design, Plant, Materials and/or workmanship of the Contractor or the failure of the Works to meet in any or all respects the requirements of the Contract), and subject to the exceptions defined in Clause 21.2, the Government may in accordance with Clause 57.9, deduct, set-off or withhold an amount sufficient in the Governments reasonable opinion to cover such claims, damages, expenses and/or losses. The indemnities given by the Contractor under this Clause 21.1 shall not be defeated or reduced by reason of any negligence or omission of the Government, or the S.O. in failing to ensure proper performance of any obligation of the Contractor under this Contract.
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21.2
Exceptions The exceptions referred to in Clause 21.1 are: -
21.2.1 the Governments Risks; 21.2.2 the right of the Related Works Contractors to execute the Related Works on, over, under, in or through any part of the Site; and 21.2.3 death of or injury to persons or loss of or damage to property resulting from any act or neglect of the Government, its agents, servants or other contractors, not being employed by the Contractor or under the Contractors control, provided that where such injury or damage was contributed to by the Contractor, any Sub-Contractor or Supplier, or its servants, agents, representatives or any other person under the control of the Contractor, then such part of the said injury or damage as may, in the S.O.s opinion, be attributable to the Contractor, any Sub-Contractor or Supplier, or its servants, agents, representatives or any other person under the control of the Contractor. 21.3 Indemnity by Government The Government shall indemnify the Contractor against all claims, damages, expenses and/or losses in respect of the matters referred to in the exceptions defined in Clause 21.2.
22
22.1
ACCIDENT OR INJURY TO WORKMEN

Contractor to indemnify Government The Government shall not be liable for, or in respect of, any damages or compensation payable to any workman or other person in the employment of the Contractor or any Sub-Contractor or Supplier, other than in respect of death or injury resulting from any act or default of the Government, its agents, servants or other contractors not being employed by the Contractor or under its control. The Contractor shall at all times, indemnify and hold harmless the Government from and against all claims, damages (including all consequential, special or indirect damages), expenses and/or losses (including losses of any profit, revenue, contract or other business opportunity (whether direct or indirect)) which the Government may have incurred, or may in its reasonable opinion incur, in connection with all such damages and compensation, and the Government may in accordance with Clause 57.9, deduct, set-off or withhold an amount sufficient in the Governments reasonable opinion to cover such claims, damages, expenses and/or losses. Nothing in Clause 34 of the Conditions of Contract shall be construed to take away or to waive or in any manner to modify the right of the Government to be indemnified by the Contractor under this Clause 22.1.
23
23.1
EVIDENCE AND TERMS OF INSURANCES

Contractor to provide evidence that insurances effected The Contractor shall, within eighty-four (84) Days of the Commencement Date and as a condition precedent to the commencement of the physical Execution of the Works upon the Site, provide evidence in form and substance acceptable to the S.O. (including, without limitation, copies of the insurance policies and receipts for payment of the current premiums) showing that it has complied fully with its insurance obligations specified under Clauses 34 and 37 of the Conditions of Contract. The
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Contractor shall effect and maintain all insurances for which it is responsible with insurance companies registered with the Ministry of Finance and in terms approved by the Government. 23.2 Adequacy of Insurances The Contractor shall notify the insurers of any changes in the nature, extent or duration of its obligations under the Contract that may adversely impact on the adequacy of the coverage of any insurance policies it has effected and maintained in accordance with the terms of this Contract. The Contractor shall ensure that such insurances are adequate at all times to cover its liabilities in accordance with the terms of the Contract. 23.3 Remedy on Failure to Insure If the Contractor fails to effect and/or maintain any of the insurances required under the Contract, or fails to provide the copies of the policies within the period required by Clause 23.1, then and in any such case the Government may, effect and maintain any such insurances and pay any premium as may be necessary for that purpose and may, in accordance with Clause 57.9, deduct, set-off or withhold an amount sufficient in the Governments reasonable opinion to cover the amount so paid. 23.4 Compliance with Policy Conditions The Contractor shall at all times, indemnify and hold harmless the Government from and against all claims, damages (including all consequential, special or indirect damages), expenses and/or losses (including losses of any profit, revenue, contract or other business opportunity (whether direct or indirect)) which the Government may have incurred, or may in its reasonable opinion incur, in connection with the Contractors failure to comply with the conditions imposed by the insurance policies effected pursuant to the Contract, and the Government may in accordance with Clause 57.9, deduct, set-off or withhold an amount sufficient in the Governments reasonable opinion to cover such claims, damages, expenses and/or losses. 23.5 Compliance with Insurance Obligations The S.O. shall be entitled, from time to time (and at any time prior to the issue of the Certificate of Completion of Making Good Defects and Certificate of Completion of Maintenance), to direct the Contractor to furnish evidence in form and substance acceptable to the S.O., confirming that the Contractor has complied with its insurance obligations under the Contract. The Contractor shall comply forthwith with any such directions at its own cost. 23.6 Other Insurances Further to and in addition to the requirements of Clauses 34 and 37 of the Conditions of Contract, the Contractor shall effect and maintain the following insurances: 23.6.1 Insurance of Contractor's Equipment The Contractor shall effect and maintain insurance against all losses or damage from whatever cause arising in respect of all Equipment brought onto or destined for the Site for use in the Execution of the Works (save only to the extent that such Equipment may be specifically insured by the Government as may be agreed hereafter between the parties), whether or not such Equipment has become the property of the Employer under Clause 52, to the full value of such Equipment.
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23.6.2
Insurance of Plant and Materials in Manufacture, Storage and Transit The Contractor shall effect and maintain insurance against all losses or damage from whatever cause arising in respect of each and every item of Plant and Materials prior to their delivery to the Site whether or not such Plant and Materials shall have become the property of the Government under Clause 53. The amount of such insurance shall be not less than the full replacement cost of the particular item of Plant or Materials including all costs associated with such replacement.
23.6.3
Motor Insurance The Contractor shall effect and maintain motor insurance in respect of any private car or goodscarrying vehicle (and Equipment used in circumstances requiring insurance under Malaysian road traffic legislation) to indemnify the Government, Contractor, and where applicable his Sub-Contractors and Suppliers and the driver of any such vehicle, for injury to persons or loss or damage to property (except property carried in or on such vehicle (arising out of the use of such vehicle for the Execution of the Works or otherwise). Motor insurance shall in addition be maintained for Equipment to cover any liability in respect of loss or damage to the property of third parties arising out of the use of such Equipment as a tool of trade.
24
24.1 24.1.1
COMPLIANCE WITH STATUTES, REGULATIONS

Statutory Requirements The Contractor shall, in the Execution of the Works, conform in all respects, including by the giving of all notices, the procuring of all approvals, permits, licenses and consents and the paying of all charges, fees, levies or taxes, with the provisions of: (a) any National or State Act, Ordinance or other law, or any regulation, or bye-law of any statutory undertaker or local or other duly constituted authority in relation to the Execution of the Works; the rules and regulations of all public bodies and companies whose property or rights are affected or may be affected in any way by the Works; and any direction, order, instruction or requirement of any statutory undertaker or any local or other duly constituted authority in relation to the Execution of the Works,
(b)
(c)
(all such requirements to be so complied with being referred to herein as the Statutory Requirements) and the Contractor shall at all times, indemnify and hold harmless the Government from and against all claims, damages (including all consequential, special or indirect damages), expenses and/or losses (including losses of any profit, revenue, contract or other business opportunity (whether direct or indirect)) which the Government may have incurred, or may in its reasonable opinion incur, in connection with the Contractors failure to comply with the Statutory Requirements, and the Government may in accordance with Clause 57.9, deduct, set-off or withhold an amount sufficient in the Governments reasonable opinion to cover such claims, damages, expenses and/or losses. 24.1.2 If at any time after the issue of the Letter of Acceptance, the Contractor or the S.O. finds any divergence between the Statutory Requirements and either the Contract Documents or the Final 36
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Design, it shall immediately give to the other notice specifying the divergence. In either case, the Contractor shall notify the S.O. of its proposed amendment for removing the divergence, and with the S.O.s consent (which shall not be unreasonably delayed or withheld) the Contractor shall entirely at its own cost complete the Execution of the Works in accordance with the amendment which shall be deemed to be part of the Final Design. 24.1.3 If, in any emergency, compliance with Clause 24.1.1 requires the Contractor to supply Plant or Materials or execute work before receiving the S.O.s consent under Clause 24.1.2, the Contractor shall supply the necessary Plant or Materials and execute the necessary works as are reasonably necessary to secure immediate compliance with the Statutory Requirements. The Contractor shall forthwith inform the S.O. of the emergency and of the steps that it is taking under Clause 24.1.3.
24.1.4
24.2
Fees, Charges and Works required by Statutory Authorities The Contractor shall at all times, indemnify and hold harmless the Government from and against any all claims, damages (including all consequential, special or indirect damages), expenses and/or losses (including losses of any profit, revenue, contract or other business opportunity (whether direct or indirect)) which the Government may have incurred, or may in its reasonable opinion incur, in connection with the Contractors failure to pay any charges, fees, levies or taxes legally demandable pursuant to the Statutory Requirements in respect of the Execution of the Works, and the Government may in accordance with Clause 57.9, deduct, set-off or withhold an amount sufficient in the Governments reasonable opinion to cover such claims, damages, expenses and/or losses.
25
FOSSILS
All fossils, coins, articles of value or antiquity and structures and other remains or things of geological or archaeological interest discovered on the Site shall, as between the Government and the Contractor, be deemed to be the absolute property of the Government. The Contractor shall take all reasonable precautions to prevent its workmen or any other persons from removing or damaging any such article or thing and shall, immediately upon discovery thereof and before removal, acquaint the S.O. of such discovery and carry out the S.O.s instructions for dealing with the same. If, by reason of such instructions, the Contractor suffers delay and/or incurs costs then the S.O. shall, after due consultation with the Contractor, determine: -
25.1.1 25.1.2
any extension of time to which the Contractor is entitled under Clause 42; and the amount of such costs, which shall be added to the Contract Sum, and shall notify the Contractor accordingly. In addition, all materials and things of any kind obtained from excavations or found on or under the Site, or under any additional site which the Contractor may be allowed to occupy, shall remain the property of the Government and shall not be used in the Works or sold or otherwise disposed of without the written authority of the S.O. unless otherwise expressly provided in the Contract Documents. No excavations are to be made upon the Site beyond those shown on the Drawings or described in the Contract Documents without the prior written authority of the S.O..
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26
26.1
COPYRIGHT, PATENT RIGHTS AND ROYALTIES

Intellectual Property to pass to Government The copyright and other intellectual property rights in all Data prepared in connection with the Execution of the Works shall (save only in the case of the patent of patented specialist systems) become the property of, and shall be assigned to the Government for the purposes of the Project and for the operation and maintenance thereof, as well as any future alteration and/or extension thereto and the Contractor shall not use the same except for the proper performance of its obligations under the Contract. The Contractor shall grant, or cause to be granted, a non-exclusive and royalty-free license to the Government for the use of any patent rights in patented specialist systems. The Contractor warrants that there is no infringement of any intellectual property right, whether copyright, patent right, trademark, design right or otherwise in respect of the rights assigned to the Government pursuant to this Clause. To the extent beneficial ownership of any such copyright or other intellectual property right is vested in anyone other than the Contractor, the Contractor shall use its best endeavours to procure that the beneficial owner thereof shall assign to the Government such rights as aforesaid and shall, to the extent that such beneficial ownership is not attainable, grant or cause to be granted a non-exclusive, royaltyfree license to the Government for the use of any such copyright or other intellectual property right for the purposes of the Project and for the operation and maintenance thereof and any future alteration and/or extension thereto.
26.2
Indemnity to Government The Contractor shall at all times, indemnify and hold harmless the Government from and against all claims, damages (including all consequential, special or indirect damages), expenses and/or losses (including losses of any profit, revenue, contract or other business opportunity (whether direct or indirect)) which the Government may have incurred, or may in its reasonable opinion incur, in connection with any infringement of any copyright, patent right, trademark, design right or other intellectual property rights related to or in any way connected with the Execution of the Works and in respect of any Equipment, Plant and/or Materials used for incorporation in the Works, or in connection therewith, and the Government may in accordance with Clause 57.9, deduct, set-off or withhold an amount sufficient in the Governments reasonable opinion to cover such claims, damages, expenses and/or losses.
27
INTERFERENCE WITH TRAFFIC AND ADJOINING PROPERTIES

All operations necessary for the Execution of the Works shall, so far as compliance with the requirements of the Contract permits, be carried on so as not to interfere unnecessarily or improperly with: -
27.1.1 the convenience of the public; or 27.1.2 the access to, use and occupation of public or private roads and footpaths to or of properties whether in the possession of the Government or of any other person. The Contractor shall save harmless and indemnify the Government in respect of all claims, damages, expenses and/or losses whatsoever arising out of, or in relation to, any breach by the Contractor of its obligations under this Clause.
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28
28.1
AVOIDANCE OF DAMAGE TO ROADS

Contractor to prevent damage to roads and bridges The Contractor shall use every reasonable means to prevent any of the roads or bridges communicating with or on the routes to the Site from being damaged or injured by any traffic of the Contractor or any of its Sub-Contractors or Suppliers and, in particular, shall select routes, choose and use vehicles and restrict and distribute loads so that any such extraordinary traffic as will inevitably arise from the moving of Plant and/or Materials, Equipment or Temporary Works from and to the Site shall be limited, as far as reasonably possible, and so that no unnecessary damage or injury may be occasioned to such roads and bridges.
28.2
Improvement of transportation infrastructure Unless otherwise expressly provided in the Contract Documents, the Contractor shall be responsible for and shall pay the cost of strengthening any bridges or altering or improving any road communicating with, or on the routes to the Site to facilitate the movement of Plant, Materials, Equipment and/or Temporary Works, and the Contractor shall at all times, indemnify and hold harmless the Government from and against all claims, damages (including all consequential, special or indirect damages), expenses and/or losses (including losses of any profit, revenue, contract or other business opportunity (whether direct or indirect)) which the Government may have incurred, or may in its reasonable opinion incur, in connection with damage to any such road or bridge caused by such movement, including such claims as may be made directly against the Government, and such claims, damages, expenses and/or losses shall be recoverable by the Government in accordance with Clause 57.9.
28.3
Damage to transportation infrastructure If, notwithstanding Clause 28.1, any damage occurs to any bridge or road communicating with or on the routes to the Site arising from the transport of Plant, Materials, Equipment and/or Temporary Works, the Contractor shall notify the S.O. with a copy to the Government, as soon as it becomes aware of such damage or as soon as it receives any claim from the authority entitled to make such claim. The Contractor shall negotiate the settlement of, and pay all sums due in respect of, such claim and shall at all times, indemnify and hold harmless the Government from and against all claims, damages (including all consequential, special or indirect damages), expenses and/or losses (including losses of any profit, revenue, contract or other business opportunity (whether direct or indirect)) which the Government may have incurred, or may in its reasonable opinion incur, in connection with damage to any bridge or road communicating with or on the routes to the Site arising from the transport of Plant, Materials, Equipment and/or Temporary Works, and such claims, damages, expenses and/or losses shall be recoverable by the Government in accordance with Clause 57.9.
28.4
Water-borne Traffic Where the nature of the Works is such as to require the use by the Contractor of water-borne transport, the foregoing provisions of this Clause 28 shall be construed as though road included a lock, dock, sea wall or other structure related to a waterway and vehicle included craft, and shall have effect accordingly.
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29
29.1
OPPORTUNITIES FOR OTHER CONTRACTORS AND RELATED WORKS

Interface with Related Works The Contractor acknowledges that it is of the essence that the Execution of the Works is fully coordinated with the Related Works in view of the concurrent and sequential nature of their interfacing activities. The Contractor accordingly agrees that, in accordance with the directions of the S.O. and at no cost to the Government, it will: -
29.1.1 take all necessary steps to co-ordinate and integrate the Execution of the Works (including the work of its Sub-Contractors and Suppliers) with the Related Works, including (without limitation) consulting and co-operating with the Related Works Contractors in preparing joint schedules, programmes and method statements, to promote and foster a co-ordinated and integrated approach to the Works and the Related Works and to minimise any interference with or hindrance in the Execution of the Works and the Related Works; 29.1.2 take all necessary steps to co-ordinate and integrate the Execution of the Works (including the work of its Sub-Contractors and Suppliers) with the work of all public or private utilities, statutory undertakers, local or other duly constituted authorities and/or other person who may be lawfully engaged upon the Site (whether employed by the Government or not), including (without limitation) affording them all reasonable access to the Site, with a view to ensuring the proper, efficient and timely Execution of the Works; 29.1.3 attend any co-ordination meetings called for by the S.O. to determine, review and plan for the management of work activities involving an interface between the Works and the Related Works; 29.1.4 refrain from carrying out any operation on Site in a manner that is likely to impede the proper, efficient or timely execution of the Related Works, provided that where such operations cannot reasonably be avoided, the Contractor shall not undertake them without first notifying the S.O. (with a copy to the affected Related Works Contractor) with a view to agreeing on a procedure that will prevent or minimise any such impediment; 29.1.5 take all necessary steps to protect and secure the Works from deterioration or accidental damage caused by the Related Works (not amounting to damage arising from the Governments Risks); 29.1.6 extend its fullest co-operation to the S.O., the Related Works Contractors, all public or private utilities, statutory undertakers, local or other duly constituted authorities and/or other person who may be lawfully engaged upon the Site (whether employed by the Government or not), with a view to promoting and fostering a co-ordinated and integrated approach to the Works and the Related Works; and 29.1.7 comply with all its obligations in relation to interfacing the Works with the Related Works as detailed in the Contract Documents, and notify the S.O. forthwith upon it becoming apparent that the Execution of the Works is likely to be the subject of delay and/or disruption and recommend reasonable proposals to minimize or prevent such delay and/or disruption.
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29.2
Co-ordination meetings The S.O. shall be entitled to convene co-ordination meetings between the Contractor, and all or any of the Related Works Contractors, all public or private utilities, statutory undertakers, local or other duly constituted authorities and/or other person who may be lawfully engaged upon the Site (whether employed by the Government or not) with a view to: -
29.2.1 determining, reviewing and planning for the management of work activities involving an interface between the Works and the Related Works, as well as the activities of any public or private utility, statutory undertaker, duly constituted authority and/or other person who may be lawfully engaged upon the Site (whether employed by the Government or not); 29.2.2 promoting and fostering a co-ordinated and integrated approach to the Works and the Related Works, as well as the activities of any public or private utility, statutory undertaker, duly constituted authority and/or other person who may be lawfully engaged upon the Site (whether employed by the Government or not); and 29.2.3 advising the Contractor of developments in respect of the Execution of the Project including where appropriate details of Related Works. 29.3 Contractor deemed to have allowed for Related Works The Contractor shall be deemed to have made adequate allowance in the Contract Sum for the performance of his obligations under this Clause, as well as for any delay or disruption to the Execution of the Works arising out of, or in connection with the Related Works as well as the activities of any public or private utility, statutory undertaker, duly constituted authority and/or other person who may be lawfully engaged upon the Site (whether employed by the Government or not). 29.4 Instructions for integrating Works with Related Works If, in the S.O.s opinion, the Execution of the Works is not being co-ordinated and satisfactorily integrated, with the execution of the the Related Works, or the activities of any public or private utility, statutory undertaker, duly constituted authority and/or other person who may be lawfully engaged upon the Site (whether employed by the Government or not), the S.O. may issue such instructions as it may deem necessary with a view to co-ordinating and integrating the Execution of the Works therewith, including but not limited to suspending the Execution of the Works or any part thereof and/or varying the Works including the removal of work from the Contract and its execution by others. 29.5 Contractor may request for Instructions for integrating Works with Related Works In the event that the Execution of the Works and the execution of the Related Works, or the activities of any public or private utility, statutory undertaker, duly constituted authority and/or other person who may be lawfully engaged upon the Site (whether employed by the Government or not), are not being co-ordinated and integrated in accordance with this Clause as a result of any Governments Risk, the Contractor may request the S.O.: 29.5.1 to issue within twenty-one (21) Days of its receipt of the Contractors request, such instructions as the S.O. may deem necessary to enable the Contractor to comply with his obligations under this Clause, and the S.O. may, but shall not be obliged to issue such instruction; and/or
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29.5.2 to procure the removal of the hindrance or impediment preventing the Contractor from complying with his obligations under this Clause as soon as possible after the Contractors request. 29.6 Contractors claim for additional time or payment Without prejudice to the generality of Clauses 42 and 51, if the Contractor considers that compliance with the instructions of the S.O. under Clauses 29.4 or 29.5 may entitle him to additional payment in respect of the additional costs of compliance therewith and/or an extension of time in respect of delays occasioned thereby, it shall be a condition precedent to such entitlement that the Contractor shall prior to complying therewith have so notified the S.O. within seven (7) Days of it receipt of such instructions, and furnished the S.O. with a detailed estimate of such additional costs and/or delays that the Contractor considers will occur or arise. Subject to the Contractors compliance as aforesaid, and provided always that the instructions issued by the S.O. pursuant to Clauses 29.4 or 29.5 do not arise from circumstances occasioned by the Contractors default in complying with this Clause 29, the Contractor may be entitled to receive: 29.6.1 29.6.2 such additional costs; and/or such extension of time; as may in the opinion of the S.O. be fair and reasonable in the circumstances.
29.7
Contractor to bear cost of its own default The Contractor shall bear all proper costs associated with any alteration, amendment, Variation or repair to the Execution of the Works, Related Works or the work of any public or private utility, statutory undertaker, duly constituted authority and/or other person who may be lawfully engaged upon the Site, (whether employed by the Government or not), necessitated by any failure on its part to comply with the provisions of this Clause. If, in the S.O.s opinion, such costs are or are likely to be incurred for reasons attributable in part to the Contractors failure to comply with any of his obligations under this Clause, and attributable in part to a Related Works Contractor, or any public or private utility, statutory undertaker, duly constituted authority and/or other person who may be lawfully engaged upon the Site, (whether employed by the Government or not), then in the event that the Contractor and such other party are unable to agree on the apportionment of such costs between them, the S.O. may instruct the Contractor to make any alteration, amendment, Variation or carry out any repair as it may deem necessary and, notwithstanding the provisions of Clause 26 in valuing such alteration, amendment, Variation or repair, the S.O. shall be entitled to make what, in his absolute discretion, constitutes a fair reduction to reflect his assessment of the Contractors responsibility for such alteration, amendment, Variation or repair.
29.8
Contractor to exercise due care and diligence Without prejudice to his other obligations under this Clause, the Contractor shall exercise due care and diligence in the Execution of the Works where the same affects, or is likely to affect, the execution of the Related Works or the activities of any public or private utility, statutory undertaker, duly constituted authority and/or other person who may be lawfully engaged upon the Site (whether employed by the Government or not).
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29.9
Indemnity to Government The Contractor shall at all times, indemnify and hold harmless the Government and against all claims, damages (including all consequential, special or indirect damages), expenses and/or losses (including losses of any profit, revenue, contract or other business opportunity (whether direct or indirect)) which the Government may have incurred, or may in its reasonable opinion incur, in connection with the SubContractors failure to comply with its obligations under this Clause, and the Government may in accordance with Clause 57.9, deduct, set-off or withhold an amount sufficient in the Governments reasonable opinion to cover such claims, damages, expenses and/or losses.
29.10
Use of Equipment or Temporary Works The Contractor shall upon receipt of an instruction from the S.O. to such effect, extend to the Government and any Related Works Contractor, public or private utility, statutory undertaker and local or other duly constituted authorities and/or other person who may be lawfully engaged upon the Site (whether employed by the Government or not), the reasonable use of any Equipment or Temporary Works it shall have on the Site, in which event the Government shall pay to the Contractor in respect of such use of its Equipment or Temporary Works, such sums as the S.O. shall deem to be fair and reasonable in the circumstances. Provided that the Contractor shall not be entitled to payment under this Clause for any such use or service, for which provision is made elsewhere in the Contract Documents nor, for the avoidance of doubt, for any such use or service which the Contractor shall in any event be obliged to provide pursuant to Clause 29.2.
30
CONTRACTOR TO KEEP SITE CLEAR

Subject to the provisions of Clause 52.6 and 53.1, during the Execution of the Works the Contractor shall keep the Site reasonably free from all unnecessary obstruction and shall store or dispose of any Equipment and surplus Materials and clear away and remove from the Site any wreckage, rubbish or Temporary Works no longer required for the Execution of the Works.
30A
30A.1
ENVIRONMENTAL MANAGEMENT PLAN

Contractor to submit Environmental Management Plan The Contractor shall within twenty-one (21) Days after the date of the Letter of Acceptance submit to the S.O. an outline of the Contractors Environmental Management Plan for complying with the environmental management requirements. Within twenty-eight (28) Days of such submittal the Contractor shall submit for approval its detailed Environmental Management Plan which shall take proper account of all comments made by the S.O. on the said outline and thereafter the Contractor shall amend or supplement the Environmental Management Plan as may reasonably be required by the S.O.. The submission and approval by the S.O. of the Environmental Management Plan shall not relieve the Contractor from any of its liabilities or obligations under the Contract.
30A.2
Contractor to adhere to Environmental Management Plan Without limiting its obligations under the Contract, the Contractor shall adhere to the principles and procedures contained in the approved Environmental Management Plan and any amendment or supplement thereof.
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30A.3
Appointment of other environmental management personnel The Contractor shall, from time to time, provide such other suitably qualified and experienced personnel and resources as may be required to ensure effective operation of the Environmental Management Plan. The said safety officer shall submit regular reports concerning the environmental management issues to the S.O. in accordance with the requirements of the S.O.
30A.4
Contractor to provide access The Contractor shall provide all access, assistance and facilities to enable the S.O. to verify the implementation of the Environmental Management Plan.
30B
30B.1
CONTRACTORS SAFETY PLAN

Contractor to establish a Safety Plan The Contractor shall establish a Safety Plan to ensure that all construction activities required to facilitate Execution of the Works are carried out in a safe manner, consistent with proven good practice, and comply with all laws, regulations, codes of practice and other things relevant to safety which may from time to time apply to the Works.
30B.2
Contractor to submit a Safety Plan Within twenty-one (21) Days of the date of the Letter of Acceptance, the Contractor shall submit to the S.O. an outline of the Safety Plan. Within twenty-eight (28) Days of such submittal the Contractor shall submit for approval its detailed Safety Plan which shall take proper account of all comments made by the S.O. and any and all submissions to the S.O. of supplemental parts of the Safety Plan shall be made as appropriate or upon the request of the S.O. but in any event not less than twenty-eight (28) Days before commencement of any work which is the subject of any such submission. The submission and approval by the S.O. of the Safety Plan and any supplement thereto shall not relieve the Contractor from any of its liabilities or obligations under the Contract.
30B.3
Safety Plan to be in accordance with the requirements of the S.O. The initial submission of the Safety Plan and all supplemental parts thereof shall be in accordance with the requirements prescribed by the S.O. and in form and substance acceptable to the S.O..
30B.4
Contractor to adhere to the Safety Plan Upon the S.O. notifying the Contractor of its approval of the Safety Plan, or any supplemental part thereof, and without limiting its obligations under the Contract, the Contractor shall adhere to the principles and procedures contained in it.
30B.5
Appointment of other safety personnel The Contractor shall, from time to time, provide such other suitably qualified and experienced personnel and resources as may be required to ensure effective operation of the Safety Plan. The said safety officer shall submit regular safety reports to the S.O. in accordance with the requirements of the S.O.
30B.6
Contractor to provide access The Contractor shall provide all access, assistance and facilities to enable the S.O. to carry out surveillance visits both on and off the Site to verify that the Safety Plan is being implemented.
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31
31.1
DELIVERY TO SITE AND CLEARANCE OF SITE ON COMPLETION

Delivery to Site The Contractor shall, in accordance with the Contract Documents, be responsible for the delivery to the Site and the proper storage, protection and securing against deterioration or accidental damage of all Plant and/or Materials required in connection with the Execution of the Works, and for making all arrangements in connection therewith and for the reception thereof at the Site.
31.2
Clearance of Site on Completion Upon the issue of a Certificate of Practical Completion or a Certificate of Partial Occupation, the Contractor shall clear away and remove from the Site (or the relevant part occuiped) all Equipment, surplus Material, rubbish and Temporary Works of every kind, and leave the Site (or the relevant part occupied) and Permanent Works clean and in a workmanlike condition to the satisfaction of the S.O.. Provided that the Contractor shall be entitled to retain on Site, at such location as may be directed by the S.O., until the end of the Defects Liability Period and Maintenance Period, such Materials, Equipment and Temporary Works as are required by him for the purpose of fulfilling its obligations during the Defects Liability Period and Maintenance Period.
31.3
Use of Plant and/or Materials of Malaysian origin Unless otherwise expressly provided in the Contract Documents, the Contractor shall only use Plant and/or Materials of Malaysian origin to the exclusion of imported Plant and/or Materials, and shall in particular use: -
31.3.1 Plant and/or Materials of Malaysian origin as listed in the Senarai Bahan-Bahan Binaan Tempatan from time to time published by Kumpulan Ikram Sendirian Berhad; 31.3.2 other Plant and/or Materials of Malaysian origin certified by Kumpulan Ikram Sendirian Berhad; and/or 31.3.3 such Plant and/or Materials of Malaysian origin approved by the S.O., in the Execution of the Works. The Contractor shall at its own cost, substitute any Plant and/or Materials which does not comply with Clause 31.3.1 31.3.3, with suitable alternatives of Malaysian origin, and shall make any necessary consequent changes to the design of the Works to accommodate such substitution, all to the concurrence of the S.O.. Such substitution, any necessary consequential changes to the design of the Works and the S.O.s concurrence thereto shall not prejudice the Contractors design obligations under this Contract. 31.4 Imported Plant and/or Materials permissible only if not available in Malaysia The Contractor shall only be permitted to apply for the import of Plant and/or Materials for use in the Execution of the Works if they are not available in Malaysia, and if the S.O. has given its prior express consent. If the Contractor desires to so import such Plant and/or Materials, it shall within twenty-one (21) Days of the issue of the Letter of Acceptance (or within such other time as the S.O. may direct), furnish to the S.O. a list of all Plant and/or Materials it desires to import for use in the Execution of the Works, the country from which the same will be imported, the timing of their intended use in the Contract, the ports of export and import and the reasons why such Plant and/or Materials are not available in Malaysia. The Contractor shall not be entitled to import such Plant and/or Materials
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without the consent of the S.O., which consent shall not be unreasonably delayed or withheld. If the S.O. gives its consent, then the Contractor shall be entitled to apply for the import of Plant and/or Materials for use in the Execution of the Works from the relevant authorities in Malaysia in respect of such importation, and obtain all necessary approvals, permits, licenses and consents required in connection therewith. The Contractor shall not be permitted to any additional time or payment in connection with the importation of any Plant and/or Materials for use in the Execution of the Works. 31.5 Treasury and other circulars Without prejudice to its obligation to comply with the Statutory Requirements, the Contractor shall note the intent and effect of all treasury circulars issued by the Ministry of Finance or other Government departments relating to the importation of Plant and/or Materials for use in the Execution of the Works, and shall comply with the same in the Execution of the Works. 31.6 Consent for Importation Notwithstanding its obligation to obtain the S.O.s consent to the importation of any Plant and/or Materials for use in the Execution of the Works, the Contractor shall be responsible for applying for and obtaining all necessary approvals, permits, licenses and consents from the relevant authorities in Malaysia in respect of such importation. The S.O. may (but shall not be obliged to) upon being requested by the Contractor, render the Contractor reasonable assistance in this regard. Such assistance shall not relieve the Contractor from its obligation to apply for and obtain all necessary approvals, permits, licenses and consents in respect of such importation. 31.7 Costs of Importation The Contractor shall arrange for the importation of any Plant and/or Materials for use in the Execution of the Works on Agreed Delivery Terms. Notwithstanding anything in the Contract to the contrary, the Contractor shall bear any and all charges, fees, levies or taxes incurred in connection with any imported Plant and/or Materials for use in the Execution of the Works (including, without limitation, any applicable customs duties and sales tax and any port dues including (but not by way of limitation) wharfage dues, storage, charges, quay rent, craneage, shipping dues, pilotage fees, anchorage, berthage and mooring fees, quarantine dues, loading porterage and overtime fees). 31.8 Shipping and use of Government of Malaysia Carriers and Freight Forwarders Unless otherwise authorised in writing by the S.O., the Contractor shall ensure that all importation of Plant and/or Materials in the Execution of the Works shall be arranged, handled and co-ordinated by Kontena Nasional Berhad, Malaysian Shipping Agencies Sendirian Berhad (or their accredited nominees or affiliated companies), or any Multi-Modal Transport Operator or any other freight forwarder nominated by the S.O., utilising only: 31.8.1 bills of lading of the Malaysian International Shipping Corporation Berhad or Perbadanan Nasional Shipping Line Berhad, or their respective affiliated companies; and/or 31.8.2 airway bills of Malaysia Airlines System Berhad or its affiliated airlines. The Contractor shall advise the S.O. and Kontena Nasional Berhad and/or Malaysian Shipping Agencies Sendirian Berhad (or their accredited nominees or affiliated companies), or any Multi-Modal Transport Operator or any other freight forwarder nominated by the S.O., of the necessary shipping and packing details and requirements not less than three (3) Months before the cargo is ready for loading at
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the port of shipment. In the event that Kontena Nasional Berhad or Malaysian Shipping Agencies Sendirian Berhad (or their accredited nominees or affiliated companies), or any Multi-Modal Transport Operator or any other freight forwarder nominated by the S.O., notify the Contractor that they are unable to handle the required transportation, the Contractor may apply to the S.O. for its consent to utilise other carriers and freight-forwarders, which consent shall not be unreasonably withheld. The Contractor shall not be entitled to any extension of time or additional payment in respect of the inability of Kontena Nasional Berhad or Malaysian Shipping Agencies Sendirian Berhad (or their accredited nominees or affiliated companies), or any Multi-Modal Transport Operator or any other freight forwarder nominated by the S.O., to handle any of the required transportation. Notwithstanding any of the foregoing, the Contractor shall be responsible for all costs incurred in shipment of Plant and/or Materials to the Site including, but without limitation, freight costs, loading and unloading costs, fares, and all other associated costs which may be levied at ports (including, but not limited to, fees for wharfage, pilotage, anchorage, berthage, mooring, quarantine and porterage). The Contractors entitlement to any payment from the Government pursuant to Clause 57 in respect of any Plant and/or Materials, which are the subject of this Clause 31, shall be conditional upon the Contractor proving to the satisfaction of the S.O. that it has complied with the provisions of this Clause 31.
32
HOURS OF WORK
The days of operation for the Works under this Contract shall be on a 24-hour basis on all days/nights of the week from Monday to Sunday excluding gazetted public holidays, save that: in determining the working hours of the Contractors employees, the Contractor shall have regard to, and comply fully with all requirements of the Employment Act 1955 in regard thereto or any subsequent modification or re-enactment thereof and shall bear all cost for compliance therewith; where the Contractor desires to Execute the Works on or adjacent to any lines operated by KTMB between the night period between 1800 hours to 0600 hours, it shall apply and obtain the necessary approval from KTMB in relation to the same; and where the Contractor desires to carry out any Execution of the Works on a gazetted public holiday, it shall at it own cost, apply and obtain the necessary approval from the relevant authorities, and provide a written application to the S.O. as early as possible detailing the type and extent of the proposed work. Written approval from the S.O. is required before work on a gazetted public holiday can be undertaken, provided that when the written application of the Contractor is approved by the S.O., the Contractor shall comply fully with all requirements of the Employment Act 1955 in regard thereto or any subsequent modification or re-enactment thereof and shall bear all cost for compliance therewith.
32.1
32.2
32.3
33
RETURNS OF LABOUR AND EQUIPMENT

The Contractor shall deliver to the S.O. a return in detail, in such form and at such intervals as the S.O. may prescribe, showing the staff and the numbers of the several classes of labour from time to time employed by the Contractor on the Site and such information respecting Equipment as the S.O. may require.
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34
34.1
QUALITY OF PLANT, MATERIALS AND WORKMANSHIP

Plant, Materials and Workmanship to be in accordance with Contract Documents All Plant and/or Materials to be supplied and all work to be undertaken under the Contract shall be designed, manufactured, Executed, tested, commissioned, operated and maintained so as to comply with the requirements of, and descriptions and in the manner set out in the Contract Documents or the Final Design or, where not so set out or shown, to meet the requirements of the Contract and to the satisfaction of the S.O., and all the Works on the Site shall be Executed in accordance with such instructions and directions as the S.O. may give and to its satisfaction and so that the Contractor meets in every respect its obligations under the Contract. All Plant and/or Materials and workmanship shall be: -
34.1.1 of the respective kinds described in the Contract and in accordance with the S.O.s instructions and directions, and each item thereof shall both on its own and as part of the Works meet the requirements of the Contract; and 34.1.2 subjected from time to time to such tests as the S.O. may require at the place of manufacture, fabrication or preparation, or on the Site or at such other place or places as may be specified in the Contract, or at all or any of such places. The Contractor shall provide such assistance, labour, electricity, fuel, stores, apparatus and instruments as are normally required for examining, measuring and testing any Plant and/or Materials thereof, and shall supply samples of Plant and/or Materials, before incorporation in the Works, for testing as may be selected and required by the S.O. 34.2 Cost of Samples All samples of Plant and/or Materials shall be supplied by the Contractor at its own cost if the supply thereof is normally required for examining, measuring and testing any Plant and/or Materials, or is clearly intended by or provided for in the Contract, or should reasonably have been anticipated by the Contractor as being likely to be required. 34.3 Cost of Tests The cost of making any test shall be borne by the Contractor if such test is: 34.3.1 clearly intended by or provided for in the Contract; 34.3.2 normally required for examining, measuring and testing any Plant and/or Materials; or 34.3.3 should reasonably have been anticipated by the Contractor as likely to be required, and the Contractor shall not be entitled to any extension of time for the making of any such test. 34.4 Cost of Tests not Provided for If any test required by the S.O. which is: 34.4.1 not so intended by or provided for;
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34.4.2 34.4.3 34.4.4
not so normally required; ought not so reasonably have been anticipated by the Contractor; (though so intended or normally required or reasonably to have been anticipated) required by the S.O. to be carried out at any place other than the Site or the place of manufacture, fabrication or preparation of the Plant and/or Materials tested, (unless such other place is specified in the Contract); or is expressed in the Contract to be payable as a remeasurement item or is allowed for under a Provisional Sum, shows the Plant, Materials, and/or workmanship not to be in accordance with the Contract and to the satisfaction of the S.O., then the cost of such test shall be borne by the Contractor, and the Contractor shall not be entitled to any extension of time for the making of such test, but in any other case Clause 34.5 shall apply.
34.4.5
34.5
S.O.s Determination where Tests not Provided for Where, pursuant to Clause 34.4, this Clause 34.5 applies, the S.O. shall, after due consultation with the Contractor, determine: -
34.5.1 34.5.2
any extension of time to which the Contractor is entitled under Clause 42; and the amount of such costs, which shall be added to the Contract Sum; and shall notify the Contractor accordingly.
34A
34A.1
QUALITY ASSURANCE PLAN

Contractor to Submit Quality Assurance Plan The Contractor shall in accordance with the Contract Documents and in a form and substance acceptable to the S.O.: (a) within twenty-one (21) Days after the date of the Letter of Acceptance , submit to the S.O. an outline of the Contractors Quality Assurance Plan for the Execution of the whole of the Works; and within twenty-eight (28) Days of the submittal referred to in Clause (a), submit to the S.O. for its approval the Contractors detailed Quality Assurance Plan in respect of the design of the whole of the Works which shall take proper account of all comments made by the S.O. on the said outline Quality Assurance Plan and thereafter the Contractor shall amend or supplement the Quality Assurance Plan as may reasonably be required by the S.O. or otherwise required by the Contract Documents; at least twenty-eight (28) Days prior to the commencement of the Execution of any part of the Works, submit to the S.O. for its approval the Contractors detailed Quality Assurance Plan in respect of that part of the Works which shall take proper account of all comments made by the Governments representative on the said outline Quality Assurance Plan. The Contractor shall 49
(b)
(c)
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not be entitled to commence the Execution of any part of the Works until the detailed Quality Assurance Plan for the Execution of that part of the Works has been approved by the S.O. and thereafter the Contractor shall amend and supplement such Quality Assurance Plan for the Execution of any part of the Works as may be reasonably required by the S.O.. For the avoidance of any doubt, but without limiting the generality of this Clause 34A.1 and the Contract Documents, each and every Quality Assurance Plan submitted by the Contractor pursuant to this Clause 34A.1 shall conform to the requirements of the International Standards Organisation standards known as ISO 9000. If the S.O. does not provide its approval or otherwise to any detailed Quality Assurance Plan as required by this Clause 34A.1 within twenty-one (21) Days of the submission thereof by the Contractor, the S.O. shall be deemed to have given its approval thereto. The approval by the S.O. of any Quality Assurance Plan shall not relieve the Contractor from any of its liabilities or obligations under the Contract. The S.O. may, at its sole discretion, reject any of the Works which in its opinion have not been designed and Executed in accordance with the Quality Assurance Plan and the Contractor shall re-design and re-Execute at its own cost and without any entitlement to any extension of time all such parts of the Works so rejected. 34A.2 Contractor to Adhere to Quality Assurance Plan Without limiting its obligations under any other provisions of the Contract, the Contractor shall adhere to the principles and procedures contained in the approved Quality Assurance Plans submitted and approved in accordance with Clause 34A.1 and any amendments or supplements thereto. 34A.3 Role of Quality Assurance Manager and other personnel In addition to the Quality Assurance Manager, the Contractor shall from time to time provide such other personnel and resources as may be required to ensure the effective operation of the Quality Assurance Plan. The Quality Assurance Manager shall in particular, without limiting its obligations, carry out audits of the application of the Quality Assurance Plan. 34A.4 Verification of Implementation The Contractor shall at its own cost provide all access, assistance and facilities to enable the S.O. to verify the implementation of the Quality Assurance Plan.
35
35.1
INSPECTION AND TESTING

Inspection of Operations The S.O., and any person authorised by him, shall at all reasonable times have access to the Site and to all workshops and places where Plant, Materials or any other part of the Permanent Works are being designed, manufactured, fabricated or prepared and the Contractor shall afford every facility for and every assistance in obtaining the right to such access.
35.2
Inspection and Testing during manufacture The S.O. shall be entitled, during design, manufacture, fabrication or preparation to inspect, examine, test and witness the testing of the Plant and/or Materials, any other part of the Permanent Works and workmanship and check the progress of design and manufacture of Plant and/or Materials and other parts of the Works to be supplied under the Contract. If Plant, Materials and/or any other part of the
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Permanent Works are being designed, manufactured, fabricated or prepared in workshops or places other than those of the Contractor, the Contractor shall obtain permission for the S.O. to carry out such inspection and testing in those workshops or places. Neither failure on the part of the S.O. to discover or reject defective design work or any Plant, Materials and/or any part of the Permanent Works, or any other work furnished by the Contractor, nor payment nor partial or entire use by the Government of any Plant, Materials and/or any part of the Permanent Works, shall be construed to be an acceptance of any such Plant, Materials and/or Permanent Works. 35.3 Dates for Inspection and Testing The time and place for the testing of any Plant, Materials and/or any part of the Permanent Works will be determined by the S.O. after consultation with the Contractor. The S.O. shall, unless otherwise specified in the Contract Documents, give the Contractor not less than twenty-four (24) hours notice of its intention to carry out the inspection or to attend the tests. If the S.O. does not attend at the date and time notified to the Contractor, the Contractor may, unless otherwise instructed by the S.O., proceed with the tests, which shall be deemed to have been performed in the presence of the S.O.. The Contractor shall forthwith forward to the S.O. duly certified copies of the test readings. If the S.O. has not attended the tests, it shall accept the said readings as accurate. 35.4 Rejection If, at the time and place determined in accordance with Clause 35.3, the Plant, Materials and/or any part of the Permanent Works are not ready for inspection or testing or if, as a result of any inspection or testing referred to in this Clause 37, the S.O. determines that the Plant, Materials and/or any part of the Permanent Works are defective or otherwise not in accordance with the Contract, the S.O. may reject the same and shall notify the Contractor thereof immediately. The notice shall state the S.O.s reasons for the rejection. The Contractor shall then promptly make good the defect or ensure that the rejected Plant, Materials and/or part of the Permanent Works complies with the Contract. If the S.O. so requests, the tests of such rejected Plant, Materials and/or part of the Permanent Works shall be made or repeated under the same test conditions. All costs incurred by the Government as a result of the repetition of such tests shall, be determined by the S.O. and shall be recoverable by the Government in accordance with Clause 57.9, and the S.O. shall notify the Contractor accordingly. 35.5 Inspection by Assistants The S.O. may appoint an assistant to carry out any inspection and/or testing of the Plant, Materials and/or any part of the Permanent Works. Any such appointment shall be effected in accordance with Clause 2.4 and the person so appointed shall be considered as an assistant of the S.O.. Notice of such appointment (not being less than seven (7) Days) shall be given by the S.O. to the Contractor. 35.6 Test Certificates from Suppliers and Manufacturers The Contractor shall obtain from a Supplier or manufacturer of any Plant, Materials and/or any part of the Permanent Works, a certificate affirming that such Plant, Materials and/or part of the Permanent Works conforms with the requirements of the Contract Documents, and has passed any test prescribed therein or pursuant thereto. The Contractor shall, at no expense to the Government, procure and furnish to the S.O. such certificate as is approved by the S.O. Until it has done so it shall not deliver such Plant, Materials and/or part of the Permanent Works to the Site or incorporate the same into the Permanent Works.
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35.7
Certificate of Testing Where Plant, Materials and/or any part of the Permanent Works have passed the tests referred to in this Clause 35, the S.O. shall furnish to the Contractor a certificate or endorse the Contractors test certificate to that effect. Such certificate shall only have the effect of recording the performance of the Plant, Materials and/or such part of the Permanent Works at the test and, as appropriate, its condition but shall not relieve the Contractor from any of its liabilities or obligations under the Contract.
35.8
Certificate of Final Acceptance When in the opinion of the S.O., the Contractor has satisfactorily completed and passed all tests required to be performed pursuant to this Clause Error! Reference source not found., and has demonstrated to the satisfaction of the S.O. that the Works satisfy all operational and other requirements in the Contract Documents, the S.O. shall issue a Certificate of Final Acceptance.
35A. COMMISSIONING TESTS

35A.1 Notice of tests and test reports The Contractor shall give to the S.O. twenty-eight (28) Days notice (or such other period of notice as may be specified in the Contract Documents) of the date after which it will be ready to perform the Commissioning Tests. Unless otherwise expressly provided in the Contract Documents, the tests shall commence on such Day or Days as the S.O. shall notify the Contractor being no more than seven (7) Days after the date specified in the Contractors notice. Test reports shall be provided by the Contractor to the S.O. in accordance with the Contract Documents. 35A.2 Time for tests If the S.O. fails to notify the Contractor of a time within a reasonable period after receipt of the Contractors notice under Clause 35A.1, or if the S.O. fails to attend at the time or place duly appointed for making the said tests, the Contractor shall be entitled to proceed in its absence, but shall inform the S.O. that it has so proceeded and shall supply him with full details of the results of such tests. 35A.3 Delayed tests If, in the opinion of the S.O., the Contractor unduly delays in giving notice to commence the Commissioning Tests as required under Clause 35A.1 it may, by notice, direct the Contractor to make such tests within twenty-one (21) Days from the receipt of the S.O.s notice, and the Contractor shall perform the said tests on such days within the said twenty-one (21) Days as the Contractor may decide, and of which it shall have given at least twenty-four (24) hours notice to the S.O.. If the Contractor fails to perform such tests within the time so prescribed, then the S.O. may itself proceed to perform the tests. All tests so performed by the S.O. shall be at the risk and expense of the Contractor provided that, if the Contractor shall establish that the tests were not being unduly delayed, then the additional cost of carrying out such tests by the S.O. earlier than required by Clause 35A.1, and the cost of any tests to the extent that they are rendered abortive by reason of being carried out prematurely, shall be certified by the S.O. if and to the extent it considers them fair and reasonable and the sum so certified shall be borne by the Government.
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35A.4
Facilities for Commissioning Tests The Contractor shall at its own expense provide everything including such labour, Equipment, Plant, Materials, electricity, fuel, water, stores, and apparatus as may be required to carry out the Commissioning Tests efficiently. The cost of any such facilities which may be made available by the Government for the use of the Contractor shall be borne by the Contractor, and shall be recoverable by the Government in accordance with Clause 57.9.
35A.5
Repeat Tests Any part of the Permanent Works which has failed to pass the Commissioning Tests and any replacement item required under paragraph (b) of Clause 46.2.1 shall, if required by the S.O., be retested at the Contractors expense within a reasonable time upon the same terms and conditions until such time as the Commissioning Tests are passed or such other time as the S.O. may direct.
36
36.1
COVERING UP WORKS
Examination of Work before Covering up No part of the Works shall be covered up or put out of view without the S.O.s prior express approval, and the Contractor shall afford full opportunity for the S.O. to examine, measure, test or witness the test of any such part of the Works that is about to be covered up or put out of view as well as to examine foundations before any other part of the Works is placed thereon. The Contractor shall notify the S.O. whenever any such part of the Works or foundations is or are ready or about to be ready for examination, measurement or testing and the S.O. shall, without unreasonable delay (unless it considers it unnecessary and advises the Contractor accordingly) attend for the purpose of examining, measuring, testing or witnessing the testing of such part of the Works or of examining such foundations.
36.2
Uncovering and Making Openings The Contractor shall uncover any part of the Works or make openings in or through the same as the S.O. may from time to time instruct and shall reinstate and make good such part. If any such part has been covered up or put out of view after compliance with the requirements of Clause 36.1 and is found to be Executed in accordance with the Contract, the S.O. shall, after due consultation with the Contractor, determine the amount of the Contractors costs in respect of such of uncovering, making openings in or through, reinstating and making good the same, which shall be added to the Contract Sum, and shall notify the Contractor accordingly. In any other case, all costs shall be borne by the Contractor.
37
IMPROPER WORK, PLANT AND/OR MATERIALS

The S.O., without prejudice to the generality of its powers, shall have authority to issue instructions from time to time (and at any time prior to the issue of the Certificate of Completion of Making Good Defects and Certificate of Completion of Maintenance), for: -
37.1.1 the removal from the Site, within such time or times as may be specified in the instruction, of any Plant, Materials and/or any part of the Permanent Works which, in the opinion of the S.O., are not in accordance with the Contract; and/or 37.1.2 the substitution of proper and suitable Plant, Materials and/or any part of the Permanent Works; or
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37.1.3 the removal and proper re-Execution, notwithstanding any previous test thereof or interim payment therefor, of any work which, in respect of: (a) (b) Plant, Materials and/or any part of the Permanent Works; or design by the Contractor;
is not, in the opinion of the S.O., in accordance with the Contract.
38
38.1
SUSPENSION
Suspension of Work The Contractor shall, on the instruction of the S.O.: -
38.1.1 suspend progress of the Execution of the Works or any part thereof; 38.1.2 suspend delivery of Equipment, Plant and/or Materials which is ready for delivery to the Site at the time for delivery indicated in the Programme, or if no time is indicated, at the time appropriate for it to be delivered; or 38.1.3 suspend the incorporation into the Permanent Works of Plant, Materials and/or any part of the Permanent Works which has been delivered to the Site, for such time and in such manner as the S.O. may in its absolute discretion consider necessary and shall, during such suspension, properly protect and secure the Works or such part thereof and shall properly protect and secure all Plant, Materials and/or any part of the Permanent Works affected at the Site, at the Contractors workshops or elsewhere (as the case may be) against any deterioration, loss or damage. If such Plant and/or Materials are at the premises of a Sub-Contractor or Supplier, then the Contractor shall procure that such Sub-Contractor or Supplier similarly protects such Plant and/or Materials against any deterioration, loss or damage. Unless such suspension is: (a) (b) otherwise provided for in the Contract; necessary by reason of some default of or breach of Contract by the Contractor, or by reason of some such default or breach reasonably anticipated by the S.O.; or necessary by reason of climatic conditions on the Site; necessary for the proper Execution of, or for the safety of the Works or any part thereof (save to the extent that such necessity arises from any of the Governments Risks), Clause 38.2 shall apply.
(c) (d)
38.2
S.O.s Determination following Suspension Where, and to the extent that, pursuant to Clause 38.1, this Clause 38.2 applies the S.O. shall, upon the written application of the Contractor, and after due consultation with the Contractor, determine: -
38.2.1 any extension of time to which the Contractor is entitled under Clause 42; and
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38.2.2 the amount which shall be added to the Contract Sum in respect of the cost reasonably incurred by the Contractor by reason of such suspension including the additional cost reasonably incurred by the Contractor in protecting, securing and insuring the Works, or part thereof, and in following the S.O.s instructions under Clause 38.1 and in resumption of the work, and shall notify the Contractor accordingly. Provided that the Contractor shall not be entitled to claim any such extension of time, or recover any such cost, unless it has as a condition precedent, complied with the relevant procedures set out in Clauses 42 and 51 respectively. 38.3 Suspension lasting more than 90 Days If the progress of the Execution of the Works or any part thereof is suspended on the written instruction of the S.O. and if permission to resume the Execution of the Works is not given by the S.O. within a period of ninety (90) Days from the date of suspension then (unless such suspension is within paragraph (a), (b), (c) or (d) of Clause 38.1) the Contractor may notify the S.O. requiring permission, within twenty-eight (28) Days from the S.O.s receipt thereof, to proceed with Execution of the Works or that part thereof in regard to which progress is suspended. If, within the said time, such permission is not granted, the Contractor may, but shall not be bound to, elect to treat the suspension, where it affects part only of the Works, as an omission of such part under Clause 49 by giving a further notice to the S.O. to that effect, but where the suspension affects the whole of the Works, the Contractor shall not treat the suspension as an event of default by the Government entitling it to terminate its employment under the Contract. 38.4 Resumption of Work After receipt of the S.O.s permission or an order to proceed, the Contractor shall, upon due notice to the S.O., examine the Plant, Materials and/or any part of the Permanent Works affected by the suspension. The Contractor shall make good any deterioration or defect in or loss of the Plant, Materials and/or any part of the Permanent Works that may have occurred during the suspension and the cost properly incurred by the Contractor in so doing which would not have been incurred but for the suspension shall (unless such suspension is within paragraph (a), (b), (c) or (d) of Clause 38.1) be determined by the S.O. after due consultation with the Contractor and shall be added to the Contract Sum. Provided always that the Contractor shall not be entitled to payment for any costs incurred in making good any deterioration, defect or loss caused or contributed to by defective workmanship, Plant and/or Materials, or by the Contractors failure to properly protect and secure all Plant, Materials and/or any part of the Permanent Works affected by the suspension instructed by the S.O.
39
COMMENCEMENT OF WORKS
The Contractor shall commence the Execution of the Works as soon as is reasonably practicable after the receipt by it of a notice to such effect from the S.O. The date on which such notice is issued shall be the commencement date for the Execution of the Works (the Commencement Date). Thereafter, the Contractor shall proceed with the Execution of the Works with due expedition and without delay. Provided that no physical Execution of the Works upon the Site under this Contract shall be commenced unless and until: -
39.1
the Contractor has furnished to the S.O. evidence in form and substance acceptable to the S.O. (including, without limitation, copies of the insurance policies and receipts for payment of the current premiums) showing that it has complied fully with its insurance obligations under the Contract; and
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39.2
it is commenced in respect of such part of the Permanent Works for which the relevant Final Design has been issued.
40
40.1
POSSESSION OF SITE AND ACCESS

Possession and Access The Government shall not be bound to give to the Contractor full possession of, uninterrupted access to, or exclusive control of the whole or any part of the Site, but (subject always to KTMBs rules and regulations including, without limitation, the requirements of KTMB pertaining to track possession and line block) shall endeavour to make available to the Contractor from time to time such part or parts of the Site and such means of access thereto in order to permit the Contractor to commence and proceed with the Execution of the Works in accordance with the sequence, method and timing of the Contractors activities as outlined in the Programme. The Contractor hereby acknowledges and agrees that it will not be entitled to full possession of, uninterrupted access to, or exclusive control of the whole or any part of the Site in the Execution of the Works, and further, that possession of the Site may be given by the Government in stages and is subject to any interruptions or restrictions on possession that may be imposed pursuant to KTMBs rules and regulations.
40.2
Extension of Time If the Contractor suffers delay and/or incurs costs from failure on the part of the Government to give possession or access in accordance with the terms of Clause 40.1, the S.O. shall, after due consultation with the Contractor, determine: -
40.2.1 40.2.2
any extension of time to which the Contractor is entitled under Clause 42; and the amount of such costs, which shall be added to the Contract Sum, and shall notify the Contractor accordingly.
40.3
Wayleaves and Facilities The Contractor shall bear all costs for special or temporary wayleaves required by him in connection with access to the Site. The Contractor shall also provide at its own cost any additional facilities outside the Site required by him for the purposes of the Works.
40.4
Sharing of the Site The Contractor shall co-ordinate its activities with the Related Works Contractors and other persons entitled to be on or in the vicinity of the Site as described in Clause 29 and elsewhere in the Contract.
41
DATE FOR COMPLETION

The Contractor shall Complete the whole of the Works by the Completion Date, as may be extended in accordance with the provisions of this Contract.
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42
42.1
EXTENSION OF TIME
Reasons for delay and extension of time The Contractor shall notify the S.O.: -
42.1.1 no later than twenty-eight (28) Days from the occurrence of any circumstance which may cause a delay to Completion of the Works which the Contractor could have foreseen, or ought reasonably to have foreseen; or 42.1.2 should it have been unable to have foreseen such a circumstance, no later than twenty-eight (28) Days from the date it becomes aware, or ought reasonably to have become aware, of the occurrence of any circumstance which has caused delay to Completion of the Works, and the Contractor shall state in any such notice the circumstance, the likelihood and probable extent of the delay and specify whether the Contractor considers it is or may become entitled to an extension of time in respect of the effects of such circumstance; if so, the Contractor shall cite the provision of Clause 42.3 which it considers to be applicable. 42.2 Contractor to mitigate delays and give particulars If the Contractor wishes to maintain its right to pursue a claim for an extension of time as specified in a notice given under Clause 42.1, the Contractor shall: 42.2.1 use and continue to use all reasonable endeavours to avoid or reduce the effect of the circumstances referred to in such notice on Completion of the Works; and as soon as reasonably practicable, submit by further notice to the S.O.: (a) full and detailed particulars of the cause and actual extent of the delay to Completion of the Works; where a circumstance has a continuing effect, or where the Contractor is at any time unable to determine whether the effect of a circumstance will in fact delay the Completion of the Works, a statement to that effect with reasons and interim written particulars (including details of the likely consequences of the circumstance on the progress of Execution of the Works and an estimate of the likelihood of and likely extent of the delay); the Contractor shall thereafter submit to the S.O. further interim written particulars at intervals of not more than fourteen (14) Days until the actual delay caused (if any) is ascertainable, when it shall thereafter within fourteen (14) Days submit to the S.O. full and detailed particulars of the cause and actual extent of the delay; for approval, details of the documents the Contractor proposes to support such claim; and for approval, details of the measures the Contractor has adopted or proposes to adopt to avoid or reduce the effects of such circumstance upon Completion of the Works.
42.2.2
(b)
(c) (d)
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42.3
Relevant Events If the circumstance notified by the Contractor under Clause 42.1 relates to: -
42.3.1 directions given by the S.O. consequent upon any dispute with neighbouring landowners, unless such direction was reasonably necessitated by the Contractors failure to comply with its obligations under the Contract; 42.3.2 the Contractor not being given possession of or access to the Site in accordance with Clause 40; 42.3.3 instructions given by the S.O. pursuant (and subject) to Clause 25, provided that such instructions are not necessitated by the Contractors failure to comply with its obligations under the Contract; 42.3.4 the provision of facilities, access or services to the Government or third parties in excess of the obligations of the Contractor under Clause 29 pursuant to an instruction of the S.O.; 42.3.5 one or more of the Governments Risks; 42.3.6 a Variation ordered under Clause 49 other than pursuant to Clause 49.3 or otherwise where such Variation is necessitated by the Contractors failure to comply with its obligations under the Contract; 42.3.7 a suspension of the Execution of the Works ordered by the S.O. under Clause 38, save where and to the extent that such order is given by reason of any of the circumstances set out in Clauses 38.1(a) to (d) (inclusive); 42.3.8 the performance of any test pursuant to Clause 34.1 which test shows the Works or any of them so tested to be in accordance with the Contract, or the performance of any test under Clause 35A.3 where the Contractor shows that such test was carried out earlier than required under Clause 35A.1; 42.3.9 the Contractor not having received in due time necessary instructions or other information expressly to be provided by the S.O. under the Contract for which the Contractor has specifically applied, provided that such application was made on a date (which having regard to the Completion Date) was neither unreasonably distant from, nor unreasonably close to the date, on which it was necessary for the Contractor to receive the same; 42.3.10 subject always to proper compliance by the Contractor with its obligations under Clause 29, the execution of work not forming part of this Contract by the Government or by Related Works Contractors, public or private utilities, statutory undertakers, local or other duly constituted authorities and/or any other person who may be lawfully engaged upon the Site (whether employed by the Government or not) on the Site; 42.3.11 compliance with the S.O.s instructions in regard to the opening up for inspection of any work pursuant to Clause 36.2, unless the inspection showed that work, Plant and/or Materials were not in accordance with the Contract or unless such instruction was reasonably necessitated as a result of the Contractors failure to comply with its obligations under Clause 36.1;
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42.3.12 compliance with the S.O.s instructions under Clause 29.4 and Clause 29.5, each subject to compliance with Clause 29.6; 42.3.13 any breach, act of prevention or improper interference by the Government, the S.O. or their respective servants or agents (including delegates and assistants) committed in relation to the Contractors performance of its obligations under the Contract and not mentioned in this Clause; or 42.3.14 any other ground for extension of time expressly mentioned in the Contract but not mentioned in this Clause, then unless and except to the extent that such circumstances are due to any act, omission, neglect, default or breach of the Contractor or any Sub-Contractor or Supplier or any of their servants or agents, the S.O. shall as soon as it is able to estimate the length of the delay consider whether the Contractor is fairly entitled to an extension of time for the Completion of the Works. In determining any such entitlement, the S.O. shall be entitled to take into account the omission of any part or parts of the Works, and any Acceleration Measures adopted pursuant to Clause 44. For the avoidance of doubt the S.O. may and shall so act regardless of whether such delays have occurred and/or have been caused by events which have occurred before or after the Completion Date of the Works. 42.4 S.O. to determine extension Subject always to proper compliance by the Contractor with the provisions of Clauses 14, 42.1 and 42.2, if the S.O. considers the Contractor to be fairly entitled to such an extension of time it shall determine the amount thereof and shall notify the Government and the Contractor accordingly. 42.5 Contractor to exercise all reasonable endeavours to reduce delay The Contractor shall not be entitled to an extension of time in respect of any cause of delay nor for any period of delay which by the exercise of all reasonable endeavours could be avoided or reduced (to the extent that such could have been reduced). The onus of proving that the Contractor has exercised all reasonable endeavours, and that despite such endeavours, the delay could not be avoided or reduced, shall in all cases rest with the Contractor in this respect. 42.6 S.O. may grant extension Notwithstanding anything in the Contract to the contrary, the S.O. shall be entitled to grant an extension of time notwithstanding that the Contractor has failed to comply with the provisions of this Clause 42. 42.7 Condition Precedent It shall be a condition precedent to the Contractors entitlement to any extension of time that it shall have complied fully and strictly with all of the provisions of this Clause 42. In the event the Contractor fails so to comply, it shall not be entitled to an extension of time, and any delay and/or disruption for which the Contractor would otherwise have been entitled to an extension of time shall be deemed not to have occurred for the purposes of considering Liquidated Damages, extensions of time and the Contractors obligations as to Completion.
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42.8
Full Compensation Any extension of time granted by the S.O. to the Contractor shall be deemed to be in full compensation and satisfaction for any claim, damage, loss and/or expense sustained or sustainable by the Contractor in respect of any matter or thing in connection with which such extension shall have been granted and every extension shall exonerate the Contractor from any claim or demand on the part of the Government for the delay during the period of such extension but not for any delay continuing beyond such extension.
43
RATE OF PROGRESS
If for any reason, which does not entitle the Contractor to an extension of time, the rate of Execution of the Works is, in the S.O.s opinion, too slow to comply with the Completion Date, the S.O. shall so notify the Contractor, who shall thereupon take such steps as are necessary (subject to the S.O.s consent) to expedite the Execution of the Works so as to comply with the Completion Date. The Contractor shall not be entitled to any additional payment for taking such steps. If, as a result of any notice given by the S.O. under this Clause, the Contractor considers that it is necessary to do any work on gazetted public holidays, it shall seek the consent of the S.O. so to do. Provided that if any steps, taken by the Contractor in meeting his obligations under this Clause, involve the Government in additional supervision costs, such costs shall, after due consultation with the Government and the Contractor, be determined by the S.O. and shall be recoverable by the Government in accordance with Clause 57.9.
44
44.1
ACCELERATION
Acceleration Measures Where the S.O. considers that the Contractor, by adopting certain measures, would be able to achieve completion of the Works earlier than the Completion Date, or would be able to extinguish or significantly reduce any extension of time to which he would otherwise be entitled pursuant to Clause 42 (Acceleration Measures), then the S.O. may request the Contractor to provide estimates of: -
44.1.1 44.1.2
the price of adopting such Acceleration Measures; and any saving in time which could be achieved by adopting such Acceleration Measures, and details of any other terms sought by the Contractor in consideration of its agreement to adopt Acceleration Measures.
44.2
Acceleration Proposals Within fourteen (14) Days of its receipt of the S.O.s request under Clause 44.1, the Contractor shall submit the information on the Acceleration Measures requested by the S.O., demonstrating its proposal for the Execution of the Works to be accelerated in the quickest and most economical manner practicable (the Acceleration Proposals). Within fourteen (14) Days of its receipt of the Acceleration Proposals, the S.O. shall notify the Contractor as to whether it agrees, disagrees or wishes to further discuss the Acceleration Proposals with the Contractor a view to reaching an agreement. However, should the S.O. decide not to instruct the Contractor to implement the Acceleration Measures, then the Contractor shall have no claim for additional payment or extension of time arising
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out of, or in connection with the preparation, submission or negotiation of any of the Acceleration Proposals. 44.3 S.O.s Agreement to the Acceleration Proposals If the S.O. agrees to the Acceleration Proposals (or if the S.O. and Contractor are able to reach an agreement in relation to the Acceleration Proposals within fourteen (14) Days of the S.O.s notice to discuss the Acceleration Proposals with a view to reaching an agreement), the S.O. shall issue an instruction to the Contractor requiring it to implement the agreed Acceleration Measures, whereupon the Contractor shall implement, and be entitled to be paid in respect of such Acceleration Measures, in accordance with the terms of its Acceleration Proposals. 44.4 S.O.s Disagreement to the Acceleration Proposals If the S.O. disagrees with the Acceleration Proposals (or if the S.O. and Contractor are unable to reach an agreement in relation to the Acceleration Proposals within fourteen (14) Days of the S.O.s notice to discuss the Acceleration Proposals with a view to reaching an agreement), the S.O. shall be entitled to instruct the Contractor to implement the Acceleration Measures in any event, with such additions or amendments thereto as the S.O. shall require. If so instructed by the S.O., the Contractor shall immediately proceed to implement the Acceleration Measures in accordance with the S.O.s instruction, whereupon the Contractor shall prepare and submit to the S.O. all such information and documents relating to the implementation of the Acceleration Measures as the S.O. may reasonably require. The S.O. shall, as soon as reasonably practicable, determine any adjustment to the Completion Date, or any extension of time granted as he considers fair and reasonable in the circumstances and shall so notify the Contractor. In addition, the S.O. shall determine an amount which shall in his opinion be fair and reasonable, to be added to the Contract Sum (based on any additional Costs reasonably and properly incurred by the Contractor, as evidenced by contemporary records, vouchers, quotations, invoices, accounts, receipts and such other contemporary records as the S.O. may deem necessary, plus an amount for reasonable profit) for implementing the Acceleration Measures instructed. 44.5 Residual delays Subject to the terms of any agreement made between the S.O. and Contractor under Clause 44.4, if by adopting the Acceleration Measures, the Contractor reduces, but does not extinguish, any delays to the Works, or if the Contractor would have been entitled to a greater extension of time under Clause 42 than that actually required due to the adoption of Acceleration Measures, then the Contractor shall, in any event, be granted, subject to Clause 42, an extension of time for the residual delay.
45
45.1
LIQUIDATED DAMAGES FOR DELAY

Government may recover Liquidated Damages If the Contractor fails to comply with the Completion Date in accordance with Clause 46, then the S.O. may certify that the Contractor is in default in not having completed the Works by the Completion Date (the Certificate of Non-Completion). Upon the issue of a Certificate of Non-Completion, the Government shall be entitled to recover from the Contractor, Liquidated Damages calculated at the rate per day specified in Appendix 1 for every Day or part of a Day which shall elapse between the Completion Date and the date upon which the Works have achieved Completion, as certified by the S.O. in the Certificate of Practical Completion. The Government may deduct the amount of such Liquidated Damages in accordance with Clause 57.9. The payment or deduction of such damages shall
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not relieve the Contractor from its obligation to complete the Execution of the Works, or from any other of its obligations and liabilities under the Contract. 45.2 Reduction of Liquidated Damages If, before Completion of the whole of the Works, a Certificate of Partial Occupation has been issued in respect of any part of the Works, the Liquidated Damages for delay in Completion of the remainder of the Works shall, for any period of delay after the date stated in such Certificate of Partial Occupation, and in the absence of alternative provisions in the Contract, be reduced in the proportion which the S.O. determines the value of the part so occupied to bear to the value of the whole of the Works. 45.3 Intervention of Variations If after Liquidated Damages have become payable in respect of any part of the Works, a Variation is instructed pursuant to Clause 49 which in the Contractors opinion has resulted, or may result in further delay to the Works, then the Contractor shall within thirty (30) Days after the issuance of such instruction notify the S.O. of such further delay. If the S.O. concurs with the Contractors opinion that the Variation has resulted, or may result in further delay to the Works, then the Governments entitlement to Liquidated Damages in respect of such further delay to the Works shall be suspended for such period as shall be determined by the S.O., and the S.O. shall so notify the Contractor of the same. Provided always that no such suspension shall invalidate the Governments entitlement to Liquidated Damages accruing before or after the period of suspension.
46
46.1
CERTIFICATE OF PRACTICAL COMPLETION

Certificate of Practical Completion When the design, constructing, testing and commissioning of the Permanent Works have been sufficiently Executed to enable the successful completion of the Commissioning Tests and, in the opinion of the S.O.: -
46.1.1 the Government is able thereafter to have full beneficial use of the Permanent Works; 46.1.2 the Permanent Works have passed any tests required by the Contract Documents and/or the Statutory Requirements; 46.1.3 the Permanent Works, other than any obligations to be performed during the Defects Liability Period, has been completed notwithstanding that there may be works of a minor nature still to be fully executed, provided that such works are not, in the opinion of the S.O., likely to prevent the grant of the Ministers approval Section 25 of the Malaysian Railways Act; 46.1.4 the Contractor has given a written undertaking to the S.O. to the effect that it will finish with due expedition any outstanding work during the Defects Liability Period; 46.1.5 the Contractor has provided all spare parts, consumables, tools and any other items as are required by the Contract Documents to be provided; and 46.1.6 the Contractor has provided all as-built drawings of the Permanent Works, and all applicable operation and maintenance manuals and parts lists relative to the Permanent Works in accordance with the
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Contract Documents, and in the English language in sufficient detail to enable the Employer to (where applicable) operate, maintain, dismantle, reassemble and adjust the Permanent Works and in such number of sets and in hard copies, reproducible copies, and copies in electronic format as may be specified in the Contract Documents, the S.O. shall issue to the Contractor a Certificate of Practical Completion, stating the date on which, in its opinion, the Works were Completed in accordance with the Contract, or issue a Certificate of Partial Occupation pursuant to Clause 44(a) of the Conditions of Contract, or give instructions to the Contractor specifying all items of work which the S.O. shall require to be completed by the Contractor before the issue of a Certificate of Practical Completion. The S.O. shall also notify the Contractor of any defects in the Works affecting Completion that may appear after such instructions, and before completing the items of work specified therein. The Contractor shall be entitled to receive such Certificate of Practical Completion within twenty-one (21) Days of completing such items of work to the S.O.s satisfaction and remedying the defects (if any) so notified. 46.2 Consequences of failure to pass Commissioning Tests If the Works or any part thereof shall fail to pass any Commissioning Test required under Clause 35A.5 the S.O. shall be entitled: 46.2.1 46.2.2 to order further repetitions of the Commissioning Tests under the conditions of Clause 35A.5; and/or to reject, and require the immediate replacement of, any item of the Works or any part thereof in accordance with Clause 37 if the results of the tests show that the item of the Works or the part is not strictly in accordance with the Contract including any performance guarantees or the tolerances specified in the Contract; and/or to use the Works or any part thereof so affected, pursuant to Clause 46.7; to issue a Certificate of Practical Completion, if the S.O. so wishes, subject to such reduction of the Contract Sum as may be agreed by the S.O. and the Contractor or, failing agreement, as may be determined by arbitration. Pending such arbitration, the S.O. shall make a reasonable assessment of the amount by which the Contract Sum should be reduced and such amount shall be recoverable by the Government in accordance with Clause 57.9. Use before Completion
46.2.3 46.2.4
46.3
If, prior to the issue of a Certificate of Practical Completion: 46.3.1 an accident, mishap or derailment occurs within the Site which necessitates the temporary use by the Government of any part of the Permanent Works; or in order to facilitate its proper, economic, and timely Execution of the Works, the Contractor desires to undertake any construction activities in respect of any existing infrastructure within the Site then in use by the Government, and desires the Government to have the use of any part of the Permanent Works in lieu thereof, then so long as such part of the Permanent Works shall be certified by the S.O. as being reasonably capable of being used, the Government shall be at liberty to use such part of the Permanent Works, and such use shall in no circumstances amount to partial occupation or use pursuant to Clause 44(a) of the Conditions of Contract. Such use shall not relieve the Contractor from its liabilities or obligations
46.3.2
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under the Contract, nor affect the Governments rights or remedies in relation thereto, provided that the Government shall take all reasonable necessary measures to avoid any loss or damage to the part, by reason of his use thereof.
47
47.1
DEFECTS LIABILITY
Defects Liability Period In these Special Provisions, the expression Defects Liability Period shall mean the period commencing upon the date any part of the Permanent Works was occupied by the Government pursuant to a Certificate of Partial Occupation, or the date on which the Works were certified as Complete in the Certificate of Practical Completion, and ending on the expiry of the relevant period relating thereto set out in Appendix 1.
47.2
Completion of Outstanding Work and Remedying Defects To the intent that the Works shall, at or as soon as practicable after the expiration of the Defects Liability Period, be delivered to the Government in the condition required by the Contract and to the satisfaction of the S.O., the Contractor shall: -
47.2.1 complete the work, if any, outstanding on the date stated in any Certificate of Practical Completion as soon as practicable after such date; and 47.2.2 execute all such redesign, work of amendment, reconstruction, and, as necessary, remedy defects, omissions, shrinkages or other faults as the S.O. may, during the Defects Liability Period or within fourteen (14) Days after its expiration, as a result of an inspection made by or on behalf of the S.O. prior to its expiration, instruct the Contractor to execute. 47.3 Cost of Remedying Defects All work referred to in Clause 47.2.2 shall be executed by the Contractor at its own cost if the necessity thereof is, in the opinion of the S.O., due to any default or failure on the part of the Contractor to comply with its obligations under the Contract. 47.4 Contractors Failure to Carry Out Instructions In case of default on the part of the Contractor in carrying out an instruction pursuant to Clause 47.2.2 within a reasonable time, the Government shall be entitled, without prejudice to any other right or remedy, to: 47.4.1 carry out the redesign and/or work itself or by others at the Contractors risk and cost, provided that it does so in a reasonable manner. The costs properly incurred by the Government in redesign, work of amendment, and reconstruction necessary to remedy the defect, omission, shrinkage or other faults shall be deducted from the Contract Sum; 47.4.2 make a reasonable reduction in the Contract Sum, which deduction shall be fixed by the S.O., and recoverable by the Government in accordance with Clause 57.9; and/or 47.4.3 if the defect, omission, shrinkage or other fault is such that the Government has been deprived of substantially the whole of the benefit of the Works or a part thereof, terminate the Contract in respect
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of such parts of the Works as cannot be put to the intended use. The Government shall, without prejudice to any other right or remedy, be entitled to recover all sums paid in respect of such parts of the Works together with the cost of dismantling the same, clearing the Site and returning Equipment to the Contractor, subject to Clause 52. 47.5 47.5.1 Endemic Failures Notwithstanding any other provisions of the Contract (including this Clause 47) if, during the course of Execution of the Works or in the five (5) years immediately following the date of Completion of the Works as certified in the Certificate of Practical Completion, the S.O. forms the opinion that, because of the nature and frequency of the failures of any part of the Works, including, but not limited to, any component or sub-assembly thereof, such part can properly be said to have failed endemically it may so certify by notice to the Contractor to that effect. Should the Works or any part thereof be certified under Clause 47.5.1 to be the subject of an endemic failure then the Contractor shall as soon as reasonably practicable renew or alter or replace (including as necessary redesigning) all such Works or parts thereof throughout the Works so as to avoid any subsequent defect therein. The costs of such renewal, repair, alteration or replacement (including any redesign) shall be borne by the Contractor together with the cost of any work ancillary thereto. Before commencing any renewal, alteration or replacement the Contractor shall submit to the S.O. for its approval, with a copy to the Government, its proposals for such renewal, alteration or replacement. The renewals, repairs, alterations or replacements (including redesign) shall be carried out and completed to the satisfaction of the S.O. and so that the Works will meet the Contractors obligations under the Contract, in particular, but without limiting the generality of the foregoing, under Clause 8. The provisions of this Clause 47 shall apply to all such renewals, repairs, alterations and replacements as though the Works or part thereof in question, together with any other part of the Works affected thereby had been the subject of a Certificate of Practical Completion on the date the renewal, repair, alteration or replacement was completed. Any renewals repairs, alterations or replacements under Clause 47.5 shall be without prejudice to the Contractors other obligations under the Contract including without limiting the generality thereof this Clause 47. Nothing contained in this Clause 47.5 shall prejudice any other rights or remedies the Government may have.
47.5.2
47.5.3
47.5.4
48
CONTRACTOR TO SEARCH
The Contractor shall if and in the time and manner required by the S.O. carry out such searches, tests or trials as may be necessary to determine the cause of any defect, imperfection or fault. Unless such defect, imperfection or other fault is one for which the Contractor is liable under the Contract, the S.O. shall, after due consultation with the Contractor, determine the amount in respect of the costs of such search incurred by the Contractor, which shall be added to the Contract Sum and shall notify the Contractor accordingly, with a copy to the Government. If such defect, imperfection 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 it shall in such case remedy such defect, imperfection or other fault at its own cost in accordance with the provisions of Clause 47.
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49
49.1
VARIATIONS
Definition of Variation The term Variation means any change in the Contract Documents which makes necessary the alteration or modification of the design, quality or quantity of the Works as described by or referred to in the Contract Documents (otherwise than such as may be reasonably necessary for the purposes of rectification of defective design, Plant, Materials and/or workmanship due to the default of the Contractor). Such alteration or modification shall include (without limitation): -
49.1.1 the addition, alteration, omission or substitution of any design or any part of the Works; 49.1.2 the alteration of the kind or the standard in respect of any of the design, Plant and/or Materials to be used in the Works; 49.1.3 the removal from the Site of any work executed or Plant and/or Materials brought thereon by the Contractor for the purposes of the Works (other than work, Plant and/or Materials, which are not in accordance with the Contract); and 49.1.4 the addition, alteration, or omission of any obligations or restrictions imposed pursuant to the Contract Documents in relation to: (a) (b) (c) 49.2 access to the Site or use of any specific parts of the Site; limitations of working space; or limitations of working hours.
S.O.s right to instruct Variations The S.O. shall be entitled to issue instructions effecting a Variation at any time prior to the issue of the Certificate of Completion of Making Good Defects and Certificate of Completion of Maintenance. No Variation instructed by the S.O. shall vitiate this Contract, or relieve the Contractor from any of its other liabilities or obligations under the Contract, but the value of all such Variations shall be taken into account by the S.O. in determining revisions to the Contract Sum in accordance with Clause 50 save as herein provided, and provided in particular that where the issue of an instruction effecting a Variation is necessitated by some act, omission, neglect, default or breach of Contract by the Contractor (or those for whom it is responsible), any additional cost attributable to such act, omission, neglect, default or breach shall be borne by the Contractor. No Variation shall be undertaken by the Contractor without an express instruction from the S.O. to such effect.
49.3
Variation to ensure Contractors compliance The S.O. may, in its absolute discretion, instruct a Variation (including an instruction to omit work) in circumstances where, in the opinion of the S.O. the Contractor will fail to meet any of its obligations under the Contract. The Contractor shall not be entitled to any extension of time or payment in respect of or in connection with any such instruction. Any instruction under this Clause 49.3 shall be without prejudice to any other rights or remedies which the Government may have.
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49.4
Contractors Proposed Variations The Contractor may propose to the S.O. any modifications to Final Design or the Works or to any part thereof which in the Contractors opinion will improve the appearance or quality of the Works, the economy of the design or construction, the bringing forward of the Completion Date of the Works or the efficiency of or economy in use of the completed Works. The S.O. at its sole discretion may approve or reject the Contractors proposed modifications and failure by the S.O. to respond within fourteen (14) Days of the Contractors proposal shall be deemed to be a rejection. If approved by the S.O. an instruction requiring a Variation shall be issued in accordance with this Clause 49. The application of this Clause 49.4 shall in no way permit the Contractor to suspend or delay its performance of the Works or any part thereof pending the Governments review of the Contractors proposals.
49.5
Omitted Work The S.O. shall be entitled to procure that any design or any part of the Works omitted pursuant to a Variation be carried out by any other contractor, provided always that if the effect of the omission of such design or part of the Works would be to reduce an extension of time to which the Contractor would otherwise have been entitled had no such Variation been instructed, the S.O. shall take the effect of such omission into account and, subject to the provisions of Clause 42, grant such extension of time (if any) so as to put the Contractor in no better and no worse position than if the said Variation had not been ordered.
49.6
Compliance with Clause 24 not a Variation An instruction of the S.O. requiring the Contractor to comply with its obligations under Clause 24 or arising from a breach or apprehended breach by the Contractor of its obligations under Clause 24, shall not under any circumstances constitute a Variation for the purposes of this Clause 49.
49.7
Contractors Estimate The S.O. may by notice at the time of issuing a Variation require the Contractor to estimate the additional sums to which it considers it will be entitled under the Contract in respect of such Variation and any extension of time for Completion of the Works to which it properly considers it will be entitled or, (as the case may be), the savings in cost or reduction of time envisaged in respect of the Variation providing all necessary documentation and supporting calculations in writing. If so requested, the Contractor shall within fourteen (14) Days (or within such other period as the S.O. may determine) submit a proper and detailed estimate to the S.O. of the said sums and extensions of time, or savings in cost or reductions in time (as the case may be) and shall not in the meantime proceed with the Variation. If the S.O. shall subsequently require the Contractor to proceed with the Variation it shall so notify the Contractor in which event the Contractor shall not be entitled to any further adjustment to the Contract Sum or extension of time in respect of such Variation beyond that set forth in the Contractors estimate other than, in respect of the extension of time only, in respect of matters which occur and could not properly have been foreseen between the estimate and the notice requiring the Contractor to proceed with the Variation. The Contractor shall have no claim to payment or extension of time in respect of any cost of and time spent preparing any estimate under this Clause 49.7.
49.8
Failure to Give Contractors Estimate In the event that the Contractor fails to give an estimate within the period required by Clause 49.7 and to provide all necessary documentation and supporting calculations or the S.O. considers that such estimate is not a proper or an accurate estimate, then the S.O. may fix such additional sums (or savings
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(as the case may be)) and period (if any) as it considers appropriate and subject only to Clause 64 instruct the Contractor to proceed forthwith with the Variation and until any contrary decision under Clause 64 the S.O.s estimate shall be treated as though it was the estimate of the Contractor required by Clause 49.7. 49.9 S.O.s Right to Proceed Notwithstanding the provisions of Clauses 49.7 and 49.8, the S.O. may instruct the Contractor, whether before or after receipt of the Contractors estimate under Clause 49.7 to comply with the relevant Variation forthwith. 49.10 Variations affecting Contractors obligations If, in the opinion of the Contractor, any Variation issued pursuant to this Clause 49 is likely to prevent or prejudice the Contractor from or in fulfilling any of its obligations under the Contract in respect of the Execution of the Works, either directly or indirectly, it shall notify the S.O. thereof as soon as practicable after receipt of the Variation therefor from the S.O., giving a full statement of its reasons, and the S.O. shall decide forthwith whether or not the same shall be carried out. The S.O. may confirm its instructions and may modify the said obligations to such an extent as it considers may be justified. Until the S.O. so confirms its instructions they shall be deemed not to have been given. The S.O. shall not be obliged to modify the said obligations if, in its opinion, the Contractor will be in breach of its obligations hereunder unless such Variation is made.
50
50.1
VALUATION OF VARIATIONS
Ascertainment by S.O. The value of Variations shall, save where the Contractor is instructed to proceed on the basis of an estimate pursuant to Clause 49.7 or Clause 49.8, be ascertained as appropriate by the S.O. after consultation with the Contractor in accordance with the following principles: -
50.1.1 where the varied work is similar in character to and Executed under similar conditions to work set out in the Price Breakdown, such work shall be valued at the applicable rates and prices in the Price Breakdown or Schedule of Rates (as the case may be); 50.1.2 where the varied work is not of a similar character to or not Executed under similar conditions to work set out in the Price Breakdown, then the S.O. shall establish a new rate for such work based upon the rates or price set out in the Price Breakdown or Schedule of Rates insofar as may be reasonable, making such allowances thereto by way of addition or deduction as may be necessary to take account of any dissimilarity in the character of the work or the conditions under which the work is Executed; 50.1.3 where work is omitted, the rates and prices in the Price Breakdown or Schedule of Rates shall be used to value the work omitted provided that if part only of an item of work is omitted, then the S.O. shall establish a new rate or price by which to value the omitted work which shall be fair and reasonable; and 50.1.4 where the varied work cannot be properly valued in accordance with the provisions of Clauses 50.1.1, 50.1.2 or 50.1.3, the S.O. shall establish a new rate or price for such work which shall be fair and reasonable in the circumstances.
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50.2
Contractor to Maintain Records The Contractor shall maintain all proper records relating to any Variation instructed and in addition, the S.O. shall be entitled within fourteen (14) Days after issuing a Variation to direct the Contractor as to any records that the S.O. requires him to maintain. The Contractor shall maintain such records at its own expense and submit them to the S.O. as directed.
50.3 50.3.1
Daywork The S.O. may, if in its opinion it is necessary or desirable, instruct that any additional or substituted work shall be Executed on a daywork basis. The Contractor shall then be paid for such work in accordance with the Daywork Schedule. The unit rate or price for items in the Daywork Schedule shall not be adjusted, notwithstanding the quantity of any daywork instructed by the S.O. The Contractor shall furnish the S.O. with such contemporary records, vouchers, receipts and the like as may be necessary to prove the amounts it has paid for work Executed on a daywork basis. In addition, before ordering any Materials for use in respect of work Executed on a daywork basis, submit to the S.O. quotations for the same for its prior express approval. In respect of all work Executed on a daywork basis, the Contractor shall during the continuance of such work deliver each day to the S.O. an exact list in duplicate of the names and occupations of all workmen employed on such work, the time period for which they were employed on such work, and a statement also in duplicate showing the description and quantity of all Materials and Equipment used thereon or therefor other than Equipment which is included in the percentage addition in accordance with the Daywork Schedule. One copy of each list and statement will if correct or when agreed be signed by the S.O. and returned to the Contractor. It shall be a condition precedent to the entitlement of the Contractor to receive payment in respect of any work executed on a daywork basis, that it shall have, on the last Day of each Month, delivered to the S.O. a detailed priced statement of all labour, Materials and Equipment properly used in respect of such work. Provided always that if the S.O. shall consider that for any reason, the sending of such list or statement by the Contractor was impracticable, the S.O. shall nevertheless be entitled to authorise payment for such work either as daywork, upon being satisfied as to the names and occupations of all workmen employed on such work, the time period for which they were employed on such work, and the labour, Materials and Equipment properly used on such work, or at such value therefor as it shall consider fair and reasonable.
50.3.2
50.3.3
51
51.1
PROCEDURE FOR CLAIMS

Notice of Claims Notwithstanding any other provision of the Contract, if the Contractor considers that it may have grounds to claim any additional payment whether pursuant to any Clause herein (including, but without limitation in respect of any Variation,) or otherwise or to recover any claims, damages, expenses and/or losses whatsoever resulting from any disruption, prolongation or other material effect to the Execution of the Works, it shall, in addition to compliance with any other procedure or obligation in relation thereto, notify the S.O., with a copy to the Government, within twenty-eight (28) Days after the event giving rise to the claim has first arisen.
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51.2
Contemporary Records Upon the happening of the event referred to in Clause 51.1, the Contractor shall maintain such contemporary records as may reasonably be necessary to support any claim it may subsequently wish to make. Without any admission as to liability or quantum on the part of the Government, the S.O. may (but shall not be obliged to), upon receipt of a notice under Clause 51.1, inspect such contemporary records and may (but without any admission as to liability on the Governments part) instruct the Contractor to maintain any further contemporary records as are reasonable and may be material to the claim of which notice has been given. The Contractor shall permit the S.O. to inspect all records maintained pursuant to this Clause 51.2 and shall supply him with copies thereof as and when the S.O. so instructs.
51.3
Substantiation of Claims Within twenty eight (28) Days of giving notice under Clause 51.1 (or such other reasonable time as may be agreed to by the S.O.), the Contractor shall send to the S.O. an account giving detailed particulars of the amount claimed and the grounds upon which the claim is based. 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 S.O. 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 S.O., the Contractor shall send a final account within twenty-eight (28) Days of the end of the effects resulting from the event. The Contractor shall, if required by the S.O. so to do, copy to the Government all accounts sent to the S.O. pursuant to this Clause 51.3.
51.4
Failure to Comply It shall be a condition precedent to the Contractors right to be paid for any Variation or to make any claim for additional payment, whether under or in connection with the Contract and/or the Works, or to recover any claims, damages, expenses and/or losses whatsoever resulting from any disruption, prolongation or other material effect to the Execution of the Works, that it shall have complied fully and strictly with all of the provisions of this Clause 51 in respect of such Variation or such claim for additional payment or for any claims, damages, expenses and/or losses resulting from any disruption, prolongation or other material effect to the Execution of the Works which it shall seek to make. In the event of the Contractor failing so to comply, the Government shall not be bound to make any payment to the Contractor in respect of such Variation or such claim for additional payment or recovery of any claims, damages, expenses and/or losses resulting from any disruption, prolongation or other material effect to the Execution of the Works, and the Contractor agrees that it shall have waived its right to payment in respect of the Variation and the claim for additional payment the subject of such non-compliance.
51.5
Payment of Claims The Contractor shall be entitled to have included in any interim payment certified by the S.O. pursuant to Clause 57, such amount in respect of any claim (including for any Variation) as the S.O., after due consultation with the Contractor, may consider due to the Contractor provided that the Contractor has furnished sufficient particulars to enable the S.O. to determine the amount due. If such particulars are in the S.O.s opinion, insufficient to substantiate the whole of the claim, the Contractor shall only be entitled to payment in respect of such part of the claim as in the S.O.s opinion, is sufficiently substantiated by the particulars so furnished. The S.O. shall notify the Contractor of any determination made under this Clause 51.5, with a copy to the Government.
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51.6
Monthly Particulars In addition to its obligations under Clauses 51.1, 51.2 and 51.3 hereof, the Contractor shall send to the S.O. by the seventh Day of every Month an account giving as full and detailed particulars as is possible, of all claims for any additional payment to which the Contractor may consider itself entitled, including all Variations ordered by the S.O. which it has executed during the preceding Month. In the event of the Contractor failing to comply with this Clause 51.6, the Government shall not be bound to make any payment to the Contractor in respect of any claim or claims the subject of the noncompliance and the Contractor shall conclusively be deemed to have waived such claim.
52
52.1
EQUIPMENT AND TEMPORARY WORKS

Vesting of Certain Equipment All Equipment and Temporary Works owned by the Contractor or Sub-Contractors or Suppliers or by any company in which the Contractor or any Sub-Contractor or Supplier has a controlling interest shall, when brought on to the Site (or in the case of Equipment or Temporary Works that are the subject of a hire purchase arrangement, on its becoming the property of the Contractor, Sub-Contractor or Supplier) immediately be and become the property of the Government. The Contractor shall not bring onto the Site, or use in connection with the Works at any place whatsoever, any item of Equipment or Temporary Works unless it shall have executed, or procured the execution of, and produced to the S.O. such deeds or documents in favour of the Government as the S.O. may reasonably require to ensure that the Government may, in the event of termination of the Contract or the employment of the Contractor thereunder, secure unrestricted use by it, or any other contractor employed by it, of such Equipment or Temporary Works until completion of Execution of the Works.
52.2
Conditions of Hire of Certain Equipment With a view to securing, in the event of termination of the Contract or the Contractors employment thereunder under Clause 60, the continued availability for the purpose of Executing the Works of any Equipment or Temporary Works that are the subject of a hire purchase or lease arrangement, the Contractor shall not bring on to the Site any such Equipment or Temporary Works unless the owner thereof shall have undertaken in the agreement for the hire or lease thereof in favour of the Government that, upon the Governments request and on the Governments undertaking to pay all charges in respect thereof from the date on which any termination of the Contract or the Contractors employment hereunder has become effective, it shall hire or lease such Equipment or Temporary Works to the Government on the same terms in all respects as the same was hired or leased to the Contractor. The Government shall be entitled to permit the use of such Equipment or Temporary Works by any other contractor employed by him for the purpose of Executing the Works under the terms of the said Clause 60.
52.3
Costs for the Purpose of Clause 60 In the event of the Government entering into any agreement for the hire or lease of any Equipment or Temporary Works pursuant to Clause 52.2, all sums properly paid by the Government under the provisions of any such agreement and all costs incurred by the Government (including stamp duties) in entering into such agreement shall be deemed, for the purpose of Clause 60, to be part of the cost of Executing the Works.
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52.4
Contractors Certificate as to Hiring Provisions The Contractor shall upon the S.O.s request at any time in relation to any item of hired or leased Equipment or Temporary Works, forthwith notify the S.O. of the name and address of the owner thereof and shall certify that the agreement for the hire or lease thereof contains a provision in accordance with the requirements of Clause 52.2. The Contractor shall, upon request made by the S.O. produce a copy of such agreement and the Government shall not be bound to make any payment to the Contractor under Clause 57 in respect of such hired or leased Equipment or Temporary Works if the Contractor fails to comply with such request.
52.5
Hire Purchase Payments by Government The Government shall in order to avoid seizure by the owner of any Equipment or Temporary Works held under an agreement of hire purchase or lease, be entitled to pay to such owner the amount of any overdue instalment or other sum payable under any agreement for hire purchase or lease, and in the event of its doing so any amount so paid by him shall be recoverable by the Government in accordance with Clause 57.9.
52.6
Irremovability of Equipment and Temporary Works No Equipment or Temporary Works shall be removed from the Site without the consent of the S.O., which consent shall not be unreasonably withheld where the same is no longer required for the Execution of the Works. The Government will, subject to the other provisions of this Contract, permit the Contractor the exclusive use of all such Equipment or Temporary Works in and for the Execution of the Works.
52.7
Government not Liable for Damage The Government shall not at any time be liable, save as mentioned in Clauses 20 and 62, for the loss of or damage to any of the said Equipment or Temporary Works.
52.8
Revesting and Removal of Equipment Upon removal with the S.O.s consent of any such Equipment and Temporary Works which have become the property of the Government under Clause 52.1, the property therein shall be deemed to revest in the Contractor and upon Completion of the Works the property in the remainder of such Equipment and Temporary Works as aforesaid shall, subject to the provisions of Clause 60.1, re-vest in the Contractor who shall remove the same. If the Contractor shall fail to remove any Equipment or Temporary Works as aforesaid within such reasonable time after Completion of the Works as may be allowed by the S.O., then the Government may: -
52.8.1 52.8.2
sell any such Equipment and Temporary Works; or return any hired or leased Equipment or Temporary Works at the Contractors expense to the owner from whom the same was hired or leased; and after deducting from any proceeds of sale the cost, charges and expenses of and in connection with such sale and in connection with such return as aforesaid shall, subject to any right of deduction, set-off or withholding, pay the balance (if any) to the Contractor but to the extent that the proceeds of any sale are insufficient to meet all such costs, charges and expenses the excess shall be a debt due from the Contractor to the Government and shall be recoverable by the Government in accordance with Clause 57.9.
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52.9
Payment of Port Dues The Contractor shall pay any port dues including (but not by way of limitation) wharfage dues, storage, charges, quay rent, craneage, shipping dues, pilotage fees, anchorage, berthage and mooring fees, quarantine dues, loading porterage and overtime fees for Equipment for use in connection with the Execution of the Works brought into and despatched from Malaysia by the Contractor (or on its behalf).
52.10
Exemption from Custom Duties The Contractor shall be required to pay all customs duties and sales tax in respect of all Equipment imported by it (or on its behalf) for use in connection with the Works. However, for Equipment which is to be used solely for the Works, customs duties may not be required to be collected as provided under Section 97 of the Customs Act 1967, and sales tax may be exempted as provided under item 29 of the Sales Tax Exemption Order 1980, in so far as the Contractor provides a bond/bankers guarantee acceptable to the Customs Department of the Government of Malaysia for such Equipment which on or before Completion of the Works shall be re-exported from Malaysia. Such regulations shall not apply to spare parts and consumable items.
52.11
Administration of Customs Duty Exemption The Contractor shall furnish to the S.O. all such shipping documents, invoices and other documents as may be required by the Customs authorities in connection with the importation and re-exportation of Equipment under bond/bankers guarantee in accordance with Clause 57.10.
52.12
Importation by Agent In the case of Equipment imported on the Contractors behalf by importing agents and the like, both the shipping documents and the invoices of the original suppliers or manufacturers must indicate clearly that the consignment is for the Contractors account.
52.13
Bond to be Forfeited in Default The Contractor shall from time to time on being so requested satisfy the S.O. that such Equipment imported into Malaysia under bond/bankers guarantee has been received on the Site and used in connection with the Works and in the event of default, the bond/bankers guarantee or part thereof shall be forfeited in respect of any Equipment which cannot be so accounted for, which forfeiture shall not relieve the Contractor from its liabilities or obligations in respect of the mis-direction of the unaccounted for Equipment.
52.14
Procedure to be Arranged The procedure in respect of the requirements of Clause 52.10 shall be determined by the Customs Authorities. The Contractor shall make written application to the S.O. and shall provide all the relevant documents for all Equipment to be imported into Malaysia free of customs duties not less than fourteen (14) Days before the arrival of the said Equipment. The Contractor shall comply with the said procedure but should the Contractor fail to comply with the requirements of this Clause 52 and pay for any customs duties and taxes in respect of any Equipment, the Employer shall not be liable to refund any amount already paid by it.
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52.15
Landing Charges Unless otherwise expressly provided in the Contract Documents, the Contractor shall bear any and all charges, fees, levies or taxes incurred in connection with the landing and shipment of all Equipment for use in the Execution of the Works (including, without limitation, any applicable customs duties and sales tax).
52.16
Customs Clearance The Contractor shall be responsible for applying for and obtaining all necessary approvals, permits, licenses and consents from the relevant authorities in Malaysia (including the Customs Authorities) in respect of the importation of such Equipment. The S.O., may (but shall not be obliged to) render reasonable assistance to the Contractor if so requested and to the extent it is able to do so. Such assistance shall not relieve the Contractor of its obligation to apply for and obtain all necessary approvals, permits, licenses and consents in respect of such importation.
52.17
Re-export of Equipment In respect of any Equipment which the Contractor imports for the purpose of the Execution of the Works, the S.O. will, subject to Clause 52.8, assist the Contractor if so requested and to the extent it is able to do so in procuring any necessary consents to the re-export of such Equipment by the Contractor upon the removal thereof as aforesaid. In the event the Contractor does not re-export the Equipment for which exemption from Customs Duties and Sales Tax has been granted under Clause 52.10, the Contractor shall obtain the permission of the Royal Customs and Excise Department and shall pay all duties applicable.
52.18
Incorporation of Clause in Sub-Contracts The Contractor shall, where entering into any sub-contract or supply contract for the Execution of any part of the Works, incorporate in such sub-contract or supply contract (by reference or otherwise) the provisions of this Clause 52 in relation to Equipment and Temporary Works brought on to the Site by such Sub-Contractor or Supplier.
52.19
Approval not Implied The operation of this Clause 52 shall not be deemed to imply any approval by the S.O. of the Equipment, Temporary Works, nor relieve the Contractor of its liabilities or obligations under this Contract, nor shall it prejudice the S.O.s other rights or remedies to instruct the removal from the Site of any such Equipment, Temporary Works, or part thereof at any time.
53
53.1 53.1.1
VESTING OF PLANT AND MATERIALS

Plant and Materials supplied by the Contractor Plant and/or Materials to be supplied by the Contractor (or by a Sub-Contractor or Supplier) for incorporation in the Works shall be and become the property of the Government at whichever is the earlier of the following times: (a) (b) upon delivery to the Site; or when the Contractor becomes entitled to have the value of such Plant and/or Materials included in an Interim Certificate,
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and shall not be removed without the S.O.s prior express consent. 53.1.2 Plant and/or Materials shall only re-vest in the Contractor to the extent that they may be instructed by the S.O. to be surplus to the Works, upon or prior to the Completion of the Works. The operation of this Clause 53.1 shall not be deemed to imply any approval by the S.O. of the Plant and/or Materials, nor relieve the Contractor of its liabilities or obligations under this Contract, nor shall it prejudice the S.O.s other rights or remedies to instruct the removal from the Site of any such Plant and/or Materials at any time. Marking of Plant and Materials Where the property in any Plant and/or Materials passes to the Government prior to the delivery thereof to the Site the Contractor shall, set the same aside and mark the same as the property of the Government. In the event of the Contractor failing to set aside and mark the items as aforesaid to the satisfaction of the S.O., the S.O. shall be entitled to exclude from the calculation of monies otherwise due in any Interim Certificate to which the Contractor may be entitled, its assessment of the value of such items as previously included in any Interim Certificate. The S.O. shall be entitled at any time and upon the giving of reasonable notice inspect any Plant and/or Materials which have become the property of the Government and the Contractor shall grant (or procure the grant) to the S.O. of access to the Contractors premises for such inspection or any other premises where such Plant and/or Materials may be located. 53.3 Inclusion within Interim Certificates Plant and/or Materials in which property has passed to the Government shall be in the care and possession of the Contractor solely for the purposes of the Contract, and shall not be within the ownership or disposition of the Contractor. Any Interim Certificate issued by the S.O. shall be without prejudice to the exercise of any power of the S.O. contained in the Contract to instruct the removal of any Plant and/or Materials which does not comply with the Contract. Following such instruction to remove, the S.O. shall be entitled to reduce any payment to which the Contractor may be entitled under an Interim or Final Certificate by the amount of its assessment of the value of such removed Plant and/or Materials previously included in an Interim Certificate. Upon the issue of such Interim Certificate (or if no value had previously been included in an Interim Certificate, upon the issue of the S.O.s instruction for their removal) the property in Plant and/or Materials to be removed shall revert to the Contractor. 53.4 Exclusion of Lien Neither the Contractor, a Sub-Contractor or Supplier (whether designated or otherwise) nor any other person shall have a lien on or other property interest in Plant and/or Materials which have vested in the Government under this Clause 53 for any sum due or accepted due to the Contractor, Sub-Contractor, Supplier or other person and the Contractor shall take such steps as may reasonably be necessary to ensure that the title of the Government and the exclusion of such lien and other property interest are brought to the express notice of Sub-Contractors, Suppliers and other persons dealing with or transporting any such Plant and/or Materials. 53.5 Delivery of Plant and Materials upon Termination Upon termination of the Contract or the Contractors employment thereunder prior to Completion, the Contractor shall deliver to the Government all Plant and/or Materials the property in which has vested
53.1.3
53.2
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in the Government by virtue of this Clause 53, and if it shall fail to do so, the Government may enter any premises of the Contractor any Sub-Contractor or Supplier or other person or any off-site place of manufacture or source of Plant and/or Materials (and the Contractor hereby grants to the Government the necessary license so to do and undertakes to procure the same right for the Government from all Sub-Contractors and Suppliers and other persons) and seize such Plant and/or Materials and the cost incurred by the Government in connection therewith shall be a debt due from the Contractor to the Government and shall be recoverable by the Government in accordance with Clause 57.9.
54
54.1
LUMP SUM WORKS

Work included in Contract Sum The Contract Sum shall cover all the obligations of the Contractor under this Contract, and shall cover all its obligations under the Contract (including, but without limitation, those in respect of the supply of labour, Plant, Materials or services or of contingencies for which there is a Provisional Sum) and all matters and things necessary for the Execution of the Works according to the true intent and meaning of the Contract Documents taken together whether the same may or may not be particularly shown or described provided the same can be reasonably inferred therefrom or is necessarily incidental thereto.
54.2
Contract Sum a Fixed Lump Sum Unless otherwise expressly provided in the Contract Documents, the Contract Sum is a fixed lump sum price and shall not be subject to adjustment or recalculation should the actual quantities of work and the goods or Materials supplied differ from any estimates used by the Contractor in the calculation of the Contract Sum and which may be set out in the Price Breakdown or in the Schedule of Rates. No statements as to quantities of work which may be included in the Price Breakdown or Schedule of Rates shall form part of the Contract.
54.3
Prices are Fully Inclusive Unless otherwise expressly provided in the Contract Documents, the Contract Sum and the rates and prices in the Price Breakdown and the Schedule of Rates shall be inclusive of all matters and things necessary for the Execution of the Works according to the true intent and meaning of the Contract Documents taken together whether the same may or may not be particularly shown or described provided the same can be reasonably or is necessarily incidental thereto, and all liabilities, responsibilities and obligations of the Contractor.
55
55.1
PROVISIONAL SUMS
Definition of Provisional Sum Provisional Sum means a sum included and so designated in the Contract for the Execution of any part of the Works or for the supply of Plant and/or Materials or any part thereof or services, or for contingencies, which sum may be used, in whole or in part, or not at all, on the instruction of the S.O.. 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 S.O. shall determine in accordance with this Clause 55. The S.O. shall notify the Contractor of any determination made under this Clause 55, with a copy to the Government.
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55.2
Use of Provisional Sums In respect of every Provisional Sum, the S.O. shall have power to order either or both (or neither) of the following: -
55.2.1
work to be Executed or Plant and/or Materials or any part thereof or services to be supplied by the Contractor, the value of which shall be determined in accordance with Clause 50 and set off against the relevant Provisional Sum; and work to be Executed or Plant and/or Materials or any part thereof or services to be supplied by a Designated Sub-Contractor or Designated Supplier in accordance with Clause 56, provided that, in each case the Contractors profit and attendance in respect of such expenditure against Provisional Sums shall be limited to the percentage set out in Appendix 1. The Contractor shall not be entitled to any extension of time for the Execution of works instructed pursuant to this Clause 55.
55.2.2
55.3
Production of Vouchers The Contractor shall produce to the S.O. all quotations, invoices, vouchers and accounts or receipts in connection with expenditure in respect of Provisional Sums.
56
56.1
DESIGNATED SUB-CONTRACTORS AND SUPPLIERS

Use of Designated Sub-Contractors and Suppliers The S.O. shall in respect of the Execution of any part of the Work or the supply of any Plant and/or Materials or any part thereof or services, have the power to order that they be carried out by a Designated Sub-Contractor or Designated Supplier named by the Government but employed by and under the control of the Contractor on terms in form and substance acceptable to the S.O.
56.2
Contractor Responsible for Designated Sub-Contractors and Suppliers The Contractor shall be fully responsible for the work, Plant and/or Materials supplied, or services of any Designated Sub-Contractor and Designated Supplier and shall have the same liabilities and obligations in the same manner as if the work had been carried out or the Plant and/or Materials or any part thereof or services had been supplied by itself. The Government shall under no circumstances be liable to the Contractor nor suffer any loss or damage for the default of any Designated Sub-Contractor or Designated Supplier.
56.3
Sums due to Designated Sub-Contractors and Suppliers The sums due to the Designated Sub-Contractor and/or Designated Supplier shall be broken down by the Contractor in the Price Breakdown if the extent of the work, Plant and/or Materials or any part thereof or services executed, supplied and/or performed by each is known in sufficient detail to enable the same to be so broken down at the date of the Letter of Acceptance. However should the Contract Documents or other documents forming part of the Contract so provide, it shall be the subject of a Provisional Sum.
56.4
Contractors Objection Provided always that the Contractor shall not be required by the Government or the S.O. or be deemed to be under any obligation to employ any Designated Sub-Contractor or Designated Supplier to whom
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the Contractor shall make in writing within fourteen (14) Days of the S.O.s instruction under Clause 56.1 a reasonable objection on the grounds of a reasonable belief that such Designated Sub-Contractor or Designated Supplier is of insufficient financial standing to perform the works or supply the Plant and/or Materials or any part thereof or services required of it or who shall decline to enter into a subcontract with the Contractor containing provisions : 56.4.1 that in respect of the work, Plant and/or Materials or any part thereof or services the subject of the subcontract the Designated Sub-Contractor or Designated Supplier will undertake towards the Contractor the like obligations and liabilities as are imposed upon the Contractor towards the Government by the terms of the Contract and will save harmless and indemnify the Contractor from and against the same and from all claims, damages, expenses and/or losses whatsoever arising out of or in connection therewith or arising out of or in connection with any failure to perform such obligations or to fulfil such liabilities; 56.4.2 that the Designated Sub-Contractor or Designated Supplier will save harmless and indemnify the Contractor from and against any act, omission or neglect of the Designated Sub-Contractor or Designated Supplier, its agents, workmen and servants and from and against any misuse by him or them of any Equipment or Temporary Works provided by the Contractor for the purposes of the Contract and from all claims as aforesaid; and 56.4.3 that payment without discount or deduction shall be made to the Designated Sub-Contractor or Designated Supplier by the Contractor within fourteen (14) Days of its receipt of payment of the S.O.s Certificate under Clause 57 which includes the value of work executed or Plant and/or Materials or any part thereof, or services supplied by the Designated Sub-Contractor or Designated Supplier. 56.5 Payments to Designated Sub-Contractors and Suppliers Before issuing under Clause 57 any certificate which includes any payment in respect of work executed or Plant and/or Materials or any part thereof, or services supplied or performed by any Designated SubContractor or Designated Supplier the S.O. shall be entitled to demand from the Contractor reasonable proof that all payments (less any retention) included in previous certificates in respect of the work executed or Plant and/or Materials or any part thereof or services supplied or performed by such Designated Sub-contractor or Designated Supplier have been paid or discharged by the Contractor. In default thereof unless the Contractor shall: 56.5.1 notify the S.O. that it has reasonable cause for withholding or refusing to make such payment, and 56.5.2 demonstrate such reasonable cause to the S.O.s satisfaction, and 56.5.3 produce to the S.O. reasonable proof that it has so informed such Designated Sub-Contractor or Designated Supplier in writing, the Government shall be entitled to pay to such Designated Sub-Contractor or Designated Supplier direct upon the certificate of the S.O. all payments (less any retention) which the Contractor has failed to make to such Designated Sub-Contractor or Designated Supplier and to deduct by way of set-off the amount so paid by the Government from any sums due or which become due from the Government to the Contractor. The exercise of this power shall not create privity of contract as between the Government and the Designated Sub-Contractor or Designated Supplier. Provided always that where
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the S.O. has certified and the Government has paid direct as aforesaid the S.O. 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. 56.6 Termination of Designated Sub-Contractors and Suppliers The Contractor shall not terminate the employment of a Designated Sub-Contractor or a Designated Supplier or terminate or permit to be terminated any contract under a Designated Sub-Contract or Designated Supply Contract without the S.O.s written consent thereto such consent not to be unreasonably withheld. In the event that the S.O. gives its consent and a termination occurs the Government shall be entitled but not obliged to designate an alternative Designated Sub-Contractor or, (as the case may be), Designated Supplier to be employed pursuant to Clause 56.1 and shall give notice of its intention in this regard to the Contractor within fourteen (14) Days of receiving a copy of the notice of termination to the Designated Sub-Contractor or Designated Supplier. No consent or redesignation under this Clause shall give rise to a claim by the Contractor or relieve him from any obligations under the Contract.
57
57.1
CERTIFICATES AND PAYMENT

Monthly Statements The Contractor shall submit to the S.O. at the end of each Month a statement in form and substance acceptable to the S.O. (and accompanied by such quotations, invoices, vouchers accounts, receipts and such other contemporary records as the S.O. may deem necessary) and nominated in Ringgit Malaysia showing the estimated total value, up to the end of that Month, of: -
57.1.1 the Works properly Executed (other than those elements set out in Clause 57.1.2 below); 57.1.2 seventy-five percent (75%) of the value of Plant and/or Materials delivered (but not prematurely) to the Site and properly protected and secured against deterioration and damage and vested in the Government but not yet incorporated in the Permanent Works; and 57.1.3 any other amounts due and payable in accordance with the provisions of the Contract. 57.2 57.2.1 57.2.2 Submittals The values mentioned in Clause 57.1 shall not be binding on the Government or the Contractor. The Contractor shall furnish to the S.O. such vouchers or returns as to values and other documents as it may require for the proper checking of the Contractors statements. The Contractors statement shall be prepared on printed forms supplied by and at the expense of the Contractor and the style and format of such forms shall be as the S.O. shall direct. Interim Certificates Within thirty (30) Days of delivery of the Contractors statement fully in accordance with Clauses 57.1 and 57.2 to the S.O., the S.O. shall value and certify in an Interim Certificate the sum which in the opinion of the S.O. is due to the Contractor in respect of the items contained in the Contractors
57.2.3
57.3
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statement under Clause 57.1, and within thirty (30) Days after the issuance of such certificate the Government shall pay to the Contractor the sum certified after deducting: 57.3.1 previous payments on account; 57.3.2 a retention of the percentage named in Appendix 1 of the sum of the above items until the amount retained shall reach the limit of the Retention Sum named therein; and 57.3.3 any other sum deductible by the Government pursuant to any term of the Contract (including, without limitation, Clause 10.1.1, Clause 10.1.2 and Clause 57.9). 57.4 Correction of Certificates The S.O. shall have power to omit from any certificate the value of any work Executed, Plant and/or Materials supplied or services rendered with which it may for the time being be dissatisfied and for that purpose or for any other reason which to him may seem proper may by any certificate delete, correct or modify any sum or statement of fact previously certified by him. 57.5 57.5.1 Statements of Final Account Not later than three (3) Months after the date of Completion of the Works as certified in the Certificate of Practical Completion, the Contractor shall submit to the S.O. an interim statement of the final account, and not later than three (3) Months after the date of issue of the Certificate of Completion of Making Good Defects or a Certificate of Completion of Maintenance (whichever shall be the later), the Contractor shall submit to the S.O. a statement of the final account, which latter statement shall include the value in accordance with the Contract of all Works properly Executed in respect of which the Contractor seeks payment, together with all further sums which the Contractor considers to be due to it under the Contract up to the date of Completion of the Works. Each of the interim statement of final account and the statement of the final account shall be accompanied by such quotations, invoices, vouchers accounts, receipts and such other contemporary records as the S.O. may deem necessary to demonstrate in detail the value in accordance with the Contract of the Works properly Executed and to substantiate the further sums as aforesaid. The Contractor acknowledges and agrees that the statement of final account is a final, binding and exhaustive statement of its entitlement to any sums arising out of, or in connection with the Works and/or the Contract. The Contractor absolutely and unconditionally agrees to waive its right to any sums not mentioned in its statement of final account, and agrees not to bring any action or demand against the Contractor for any claims, damages, expenses and/or losses which it may incur in connection with its omission of such sums from the statement of final account. Final Certificate Forty-five (45) Days after receipt of the statement of final account and all quotations, invoices, vouchers accounts, receipts and such other contemporary records as the S.O. may deem necessary reasonably for their verification, the S.O. shall issue a certificate stating the final balance which is, in its opinion, due from the Government to the Contractor or from the Contractor to the Government (as the case may be) up to the date of Completion of the Works as certified in the Certificate of Practical Completion, and after giving credit to the Government for all amounts previously paid by the Government and for all sums to which the Government is entitled under the Contract (the Final 80
57.5.2
57.5.3
57.6 57.6.1
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Certificate). Upon the issue of the Final Certificate, such final balance shall take effect as a debt due and immediately payable from the Government to the Contractor, or from the Contractor to the Government (as the case may be). The parties acknowledge and agree that the figures stated in the Final Certificate, and the final balance expressed as due from the Government to the Contractor, or vice versa, shall be final, binding and conclusive as between them. 57.6.2 If the Contractor fails to submit a statement of final account within three (3) Months of the date of the Certificate of Completion of Making Good Defects or a Certificate of Completion of Maintenance (whichever shall be the later), the S.O. shall be entitled to issue a Final Certificate without further reference to the Contractor. Notwithstanding anything in the Contract to the contrary, the Contractors failure to submit a statement of final account within the time specified shall not in any way affect or prejudice the conclusiveness of the Final Certificate so issued, and the final balance stated in it shall take effect as a debt due and immediately payable from the Government to the Contractor, or from the Contractor to the Government (as the case may be). The parties acknowledge and agree that the figures stated in the Final Certificate, and the final balance expressed as due from the Government to the Contractor, or vice versa, shall be final, binding and conclusive as between them. Release of Retention Upon the issue of the Certificate of Practical Completion, one half of the Retention Sum shall be certified by the S.O. for payment to the Contractor. Upon the issue of the Certificate of Completion of Making Good Defects or the Certificate of Completion of Maintenance (whichever shall be the later), the other half of the Retention Sum shall be certified by the S.O. for payment to the Contractor. Provided that if at the date specified in Clause 57.7.2 there shall remain to be carried out by the Contractor any outstanding works, the Government shall be entitled to withhold payment until the completion of such works of so much of the balance of Retention Sum as shall, in the opinion of the S.O., represent the cost of the work remaining to be executed. 57.8 Currency of Payment Unless otherwise stated in the Contract, the Contract Sum and all payments to be made to the Contractor in respect thereof shall be in Ringgit Malaysia. All payments to the Contractor shall be paid by the Government to a current bank account opened by and maintained in the name of the Contractor with a bank established in Malaysia. 57.9 Governments Right of Deduction, Withholding and Set Off Without prejudice to its other rights and remedies (whether contractual, statutory, legal, equitable or otherwise), the Government shall be entitled at any time, notwithstanding any provision to the contrary included in the Contract, to deduct, set-off or withhold from any monies due or becoming due to the Contractor pursuant to any term of this Contract, or from the Performance Bond, Security Deposit, Security Retention or the Retention Sum, or as a debt due from the Contractor to the Government: 57.9.1 any sum which the Contractor is liable to pay to the Government arising out of, or in connection with any term of this Contract (whether in relation to an indemnification, the allowance of Liquidated Damages, any act, omission, neglect, default or breach on the Contractors part in the performance of its obligations under the Contract, or otherwise);
57.7 57.7.1
57.7.2
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57.9.2 any sums due and payable by the Contractor to satisfy any obligations or liabilities of the Contractor to the Government pursuant to any agreement to which the Government and the Contractor are parties other than the Contract; and 57.9.3 any sum which the Government is, or may be, liable to pay to any third party to satisfy any obligation or liability of the Contractor arising out of, or in connection with the Contract. Provided that if the liability and/or quantum of any sum for which the Contractor is, or may be, liable to pay to the Government has not been ascertained at the time when such sum is to be paid, then the Government may set-off or withhold from any monies due or becoming due to the Contractor pursuant to any term of this Contract, or from the Performance Bond, Security Deposit, Security Retention or Retention Sum, an amount sufficient in the Governments reasonable opinion to cover such liability and/or the quantum of any sum for which the Contractor is, or may be, liable to pay to the Client. The Government shall settle such liability as soon as reasonably practicable, and refund to the Contractor any excess of such amount withheld. 57.10 Contractors Right to refer to arbitration Unless otherwise provided in this Contract, any sum deducted, set-off or withheld pursuant to the provisions of Clause shall be without prejudice to the rights of the Contractor to seek to refer any dispute or difference in relation to such sums deducted, set-off or withheld by the Contractor under Clause 64 to arbitration in accordance with the terms of this Contract.
58
NO APPROVAL BY CERTIFICATES
No certificate of the S.O. or payment by the Government under any provision of the Contract shall be considered as any evidence as to acceptance or the sufficiency of the design or any part of the Works to which it relates, nor shall it relieve the Contractor from its obligation to do everything necessary for the Execution of the Works according to the true intent and meaning of the Contract Documents taken together, whether the same may or may not be particularly shown or described provided the same can be reasonably inferred therefrom or is necessarily incidental thereto.
59
59.1
CERTIFICATE OF COMPLETION OF MAKING GOOD DEFECTS

Certificate of Completion of Making Good Defects The Execution of the Works shall not be considered completed until a Certificate of Completion of Making Good Defects shall have been issued by the S.O. and delivered to the Government, with a copy to the Contractor. The Certificate of Completion of Making Good Defects shall be issued by the S.O. within twenty-eight (28) Days after the expiration of the Defects Liability Period, or, if different defects liability periods shall become applicable to different parts of the Permanent Works, the expiration of the latest such period, or as soon thereafter as any works instructed, pursuant to Clauses 47 and 48, have been completed to the satisfaction of the S.O..
59.2
Unfulfilled Obligations Notwithstanding the issue of the Certificate of Completion of Making Good Defects, the Contractor and the Government shall remain liable for the fulfilment of any obligation incurred under the provisions of the Contract prior to the issue of the Certificate of Completion of Making Good Defects which remains unperformed at the time such Certificate of Completion of Making Good Defects is
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issued and, for the purposes of determining the nature and extent of any such obligation, the Contract shall be deemed to remain in force between the parties to the Contract. 59.3 Cessation of Governments Liability Without in any way derogating from the other provisions of the Contract, and in particular without prejudice to Clause 51, the Government shall not be liable to the Contractor for any matter or thing arising out of or in connection with the Contract or the Execution of the Works after the issue of the Certificate of Completion of Making Good Defects unless the Contractor shall have included a properly documented claim in respect thereof in its interim statement of final account or its statement of final account under Clause 57.5.
60
60.1
DEFAULT OF CONTRACTOR
Forfeiture If the Contractor shall become bankrupt or have a receiving order made against him or shall present its petition in bankruptcy or shall make an arrangement with or assignment in favour of its creditors or shall agree to carry out the Contract under a committee of inspection of its creditors or (being a corporation) shall go into liquidation (other than a voluntary liquidation for the purposes of amalgamation or reconstruction to which the Government has given its prior express consent (which shall not be unreasonably withheld) or in the event of any analogous event under the laws of the country in which the Contractor is incorporated or if the Contractor shall assign the Contract without the prior express consent of the Government first obtained or shall have an execution levied on its goods or if the S.O. shall certify to the Government that in its opinion the Contractor: -
60.1.1 has abandoned the Contract; 60.1.2 without reasonable excuse has failed to commence the Execution of the Works or has suspended the progress of the Execution of the Works for twenty-eight (28) Days after receiving from the S.O. notice to proceed; 60.1.3 has failed, within the time specified by the S.O., to remove Plant and/or Materials from the Site which in the opinion of the S.O. does not comply with the Contract; 60.1.4 has failed to Execute the Works in accordance with the Contract or is persistently or flagrantly neglecting to carry out its obligations under the Contract (and provided that delay in Completion of the Works by sixty (60) Days (save where such delay is the result of an event entitling the Contractor to an extension of time pursuant to Clause 42) shall be deemed to constitute persistent neglect under this Clause 60.1.4; 60.1.5 has to the detriment of good design or workmanship, or in defiance of the S.O.s instructions to the contrary, sub-let any part of the Works; or 60.1.6 has persistently neglected to carry out the written instructions of the S.O. despite previous warnings, then the Government may (but shall not be obliged) after giving fourteen (14) Days notice to the Contractor, determine the Contractors employment hereunder and enter upon the Site and the Works
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and expel the Contractor therefrom without thereby avoiding the Contract or releasing the Contractor from any of its obligations or liabilities under the Contract or affecting the rights and powers conferred on the Government or the S.O. by the Contract, and may itself complete the Execution of the Works or may employ any other contractor to do so, and the Government or such other contractor may use for such completion so much of the Equipment, Temporary Works, Plant and/or Materials which have become the property of the Government under the provisions of the Contract as it or they may think proper and the Government may at any time sell any of the said Equipment, Temporary Works, Plant and/or unused Materials and apply the proceeds of sale in or towards the satisfaction of any sums due or which may become due to him from the Contractor under the Contract. 60.2 Valuation at Date of Forfeiture The S.O. shall as soon as may be practicable after any such entry and expulsion by the Government, fix and determine ex-parte or by or after reference to the parties or after such investigation or enquiries as it may think fit to make or institute and shall certify what amount (if any) had at the time of such entry and expulsion been reasonably earned by or would reasonably accrue to the Contractor in respect of Works then actually Executed by it under the Contract and what was the value of any unused or partially used Plant and/or Materials or any part thereof and any Equipment, and Temporary Works which have been deemed to become the property of the Government under the provisions of the Contract. 60.3 Payment after Forfeiture If the Government shall enter and expel the Contractor under this Clause 60 it shall not be liable to pay to the Contractor any money on account of the Contract until the expiration of the Defects Liability Period and the Maintenance Period and thereafter until the costs of completion of the Execution of the Works , Liquidated Damages and all other expenses incurred by the Government have been ascertained and the amount thereof certified by the S.O.. The Contractor shall then be entitled to receive only such sum or sums (if any) as the S.O. may certify would have been due to it upon due completion of the Execution of the Works by it after deducting the said amount. However if such amount shall exceed the sum which would have been payable to the Contractor on such due completion by it then the Contractor shall upon demand pay to the Government the amount of such excess and it shall be deemed a debt due by the Contractor to the Government and shall be recoverable accordingly. 60.4 Assignment or Novation If so required by the Government or the S.O., the Contractor shall before the expiration of the notice referred to in Clause 60.1, assign to the Government or its nominee without payment the benefit of any agreement which the Contractor has entered into for the supply of Plant and/or Materials or for the Execution of any part of the Works, or novate without payment such agreement to the Government or its nominee and the Contractor will execute all documents and perform all acts necessary to perfect such assignment or novation (as the case may be). The Government may pay the Sub-Contractor or Supplier for any such Plant and/or Materials or any part of the Works supplied and delivered to the Site or any part of the Works Executed under such agreement (whether the same be assigned or novated as aforesaid or not) before or after the giving of the said notice the amount due by such agreement in so far as it has not already been paid by the Contractor to the Sub-Contractor or Supplier. Payments under this Clause 60 may be made out of any monies due or which may become due to the Contractor under the Contract.
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60.5
Liquidated Damages If the Contractors employment has been determined pursuant to this Clause 60 and Completion of the Works by the Government (or by other contractors employed by the Government) has been delayed beyond the Completion Date, the following provisions shall have effect: -
60.5.1
The Government shall be entitled to the same Liquidated Damages as would have been payable if the Contractor had completed the Works on the actual date the Government (or the other contractors employed by the Government) completed the Works. For the purpose of giving effect to the above, the Superintending Officer shall, upon the actual date the Government (or the other contractors employed by the Government) completed the Works, issue a certificate stating the date upon which the Contractor should have completed the Works, and shall also state the full period of delay for which the Contractor is responsible and shall compute the total Liquidated Damages due to the Government therefor. The S.O. shall, in such certificate, reduce the period of delay to the extent that any events occurring after the determination of the Contractors employment would have entitled the Contractor to an extension of time had he duly Executed the Works, and to the extent that there has been any failure by the Government (or the other contractors employed by the Government) to use due diligence and expedition in arranging for or completing the remaining parts of the Works. Upon the issue of such a certificate, the amount of Liquidated Damages stated in such certificate shall be deemed to be a debt due by the Contractor to the Government and shall be recoverable accordingly.
60.5.2
61
61.1
URGENT REPAIRS
Urgent Repairs If by reason of any accident or failure or other event occurring to or in connection with the Works or any part thereof either during the Execution of the Works or during the Defects Liability Period and/or Maintenance Period, any remedial or other work or repair shall in the opinion of the S.O. be urgently necessary for the security and/or the safety of the Works or any part thereof and the Contractor is unable or unwilling at once to do such work or repair, the Government may by its own or other contractors or workmen do such work or repair as the S.O. may consider necessary. If the work or repair so done by the Government is work which in the opinion of the S.O., the Contractor was liable to do at its own expense under the Contract, all costs properly incurred by the Government in so doing shall be a debt due from the Contractor to the Government and shall be recoverable by the Government in accordance with Clause 57.9. Provided always that the S.O. shall as soon after the occurrence of any such emergency or urgency as may reasonably be practicable notify the Contractor thereof.
61.2
Remedy on Default of Contractor If the Contractor shall fail duly to observe or perform any requirement, instruction, direction or order of the S.O. duly made or given in accordance with the Contract or shall otherwise fail to fulfil any obligation imposed upon him by the Contract, the Government may without prejudice to any other rights or remedies it may have itself or by its servants or agents remedy such default and all expenses consequent thereon or incidental thereto, shall be borne by the Contractor and shall be recoverable by the Government in accordance with Clause 57.9.
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62
62.1
TERMINATION FOR CONVENIENCE

Termination of Contract for Governments Convenience The Government may, at any time prior to the issue of the Certificate of Completion of Making Good Defects or the Certificate of Completion of Maintenance, terminate the Contractors employment by serving one (1) Months notice if, in its absolute discretion, the Government shall determine that such termination is in the best interests of the Government in which event the sum payable by the Government to the Contractor in respect of the Works already Executed shall be the same as that which would have been payable under Clause 62.2.
62.2
Payment if Contract Determined If the Contract is determined pursuant to Clause 62.1, the Contractor shall be paid by the Government, insofar as such amounts or items shall not have already been covered by payments on account made to the Contractor, for all Works Executed prior to the date of termination at the rates and prices provided in the Contract and in addition: -
62.2.1
The amounts payable in respect of any preliminary items so far as the work or service comprised therein has been carried out or performed, and a proper proportion of any such items which have been partially carried out or performed; The cost of Plant and/or Materials or any part thereof reasonably ordered for the Works which shall have been delivered to the Contractor or as to which the Contractor is legally liable to accept delivery, such Plant and/or Materials or any part thereof becoming the property of the Government upon such payment being made by it; A sum being the amount of any expenditure reasonably incurred by the Contractor in the expectation of completing the Execution of the Works insofar as such expenditure has not been covered by any other payments referred to in this Clause 62.2; Such proportion of the cost as may be reasonable, taking into account payments made or to be made for design and Works Executed, of removal of Equipment and, if required by the Contractor, return thereof to the Contractors main Equipment yard in its country of registration or to other destination, at no greater cost; and The reasonable cost of repatriation of all the Contractors staff and workmen employed on or in connection with the Works at the time of such termination. Provided always that against any payment due from the Government under this Clause 62.2 the Government shall be entitled to be credited with any sums which, at the date of termination, were recoverable by the Government in accordance with Clause 57.9. Any sums payable under this Clause 62.2 shall, after due consultation with the Government and the Contractor, be determined by the S.O. who shall notify the Contractor accordingly, with a copy to the Government.
62.2.2
62.2.3
62.2.4
62.2.5
62.3
No Additional Reimbursement Save as aforesaid the Contractor shall not be entitled to any reimbursement of any loss, expense, compensation, profit or damages as a result of the operation of this Clause 62. Provided that
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termination of the Contract in accordance with Clause 62.1 shall be without prejudice to the rights of either party in respect of any antecedent breach thereof 62.4 Contractors Obligations In the event of termination in accordance with Clause 62.1, the Contractor shall at the expiry of the said one (1) Month: 62.4.1 remove from the Site all Equipment, Temporary Works and surplus Plant and/or Materials and shall similarly allow its Sub-Contractors and Suppliers to do so; 62.4.2 so far as may be necessary, transfer title to the Government and deliver up as directed by the S.O. such property that would be required to be furnished to the Government under the Contract provided that this requirement shall not apply to such property for which the Contractor has not been paid; and 62.4.3 take all necessary or appropriate steps in a safe and orderly fashion to cease the Execution of the Works so as to enable the Government to take full, sole and unencumbered possession of the Site and the Contractor shall ensure that all its personnel and the personnel of its Sub-Contractors and Suppliers have left the Site, that full sets of all Data and other information relating to the Works have been delivered up to the Government, and that the Execution of the Works are tidy, safe and ready for the Government to continue with the Works, if it so wishes. 62.5 Assignment and Novation By the notice referred to in Clause 62.1 the Government may require the Contractor to assign to the Government or its nominee without payment the benefit of any agreement which the Contractor has entered into for the supply of Plant and/or Materials or for the Execution of any part of the Works, or novate without payment such agreement to the Government or its nominee and the Contractor will execute all documents and perform all acts necessary to perfect such assignment or novation (as the case may be). The Government may pay the Sub-Contractor or Supplier for any such Plant and/or Materials or any part of the Works supplied and delivered to the Site or any part of the Works Executed under such agreement (whether the same be assigned or novated as aforesaid or not) before or after the giving of the said notice the amount due by such agreement in so far as it has not already been paid by the Contractor to the Sub-Contractor or Supplier. Payments under this Clause 62 may be made out of any monies due or which may become due to the Contractor under the Contract.
63
RELEASE FROM PERFORMANCE

In the event of the Contract being frustrated whether by war or otherwise howsoever the sum payable by the Government to the Contractor in respect of the design carried out and Works Executed shall be the same as that which would have been payable under Clause 62 if the Contract had been determined under the provisions of that Clause.
64
64.1 64.1.1
SETTLEMENT OF DISPUTES
Settlement of Disputes Arbitration If any dispute or difference of any kind whatsoever shall arise between the Government or the S.O. on the one hand and the Contractor on the other hand in connection with or arising out of the Contract or the Execution of the Works (whether during the progress of the Execution of the Works or after their 87
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Completion and whether before or after the determination abandonment or breach of the Contract) it shall be referred to and settled by the S.O. who shall state its decision in writing and give notice of the same to the Government and the Contractor. 64.1.2 Such decision in respect of every matter so referred shall be final and binding upon the Government and the Contractor unless and until the same shall be revised as hereinafter provided in an amicable settlement or arbitral award and shall forthwith be given effect to by the Contractor who shall proceed with the Execution of the Works with all due diligence whether notice of dissatisfaction is given by him or by the Government as hereinafter provided or not. If the S.O. shall fail to give such decision for a period of ninety (90) Days after being requested to do so or if either the Government or the Contractor is dissatisfied with any such decision of the S.O. then provided that a Certificate of Practical Completion has been issued (or if the same shall not have been issued, with the mutual consent of the parties) either the Government or the Contractor may either within ninety (90) Days after receiving notice of such decision or within ninety (90) Days after the expiration of the first period of ninety (90) Days (as the case may be) notify the other party, with a copy to the S.O., of its intention to commence arbitration. Arbitration of such dispute shall not be commenced unless an attempt has first been made by the parties to settle such dispute amicably in accordance with the mediation procedure set out in Appendix 5 by an agreed neutral third party or failing agreement by a neutral person appointed by the President, for the time being, of the Board of Engineers. Any dispute in respect of which amicable settlement has not been reached as aforesaid shall be referred to an arbitrator to be agreed upon between the parties or failing agreement to be nominated on the application of either party by the Director for the time being of the Regional Centre for Arbitration in Kuala Lumpur and any such reference shall be deemed to be a submission to arbitration within the meaning of the Arbitration Act. No. 93 (Revised 1972) of Malaysia or any other law amending or replacing this Act. If the S.O. has given a decision and given notice thereof within a period of ninety (90) Days as aforesaid and no notice of dissatisfaction has been given either by the Government or the Contractor within a period of ninety (90) Days from receipt of such notice thereof the said decision of the S.O. shall remain final and binding upon the Government and the Contractor. Such arbitrator shall have full power to open up review and revise any decision, opinion, direction, certificate or valuation of the S.O. and neither party shall be limited in the proceedings before such arbitrator to the evidence or arguments put before the S.O. for the purpose of obtaining its decision above referred to. The award of the arbitrator shall be final and binding on the parties. Such reference except to the withholding by the S.O. of any certificate or the withholding of any portion of the exercise of the S.O.s power to give a certificate under Clause 60.1 shall not be opened until after the Completion or alleged Completion of the whole of the Works or the termination or alleged termination of the Contractors employment under the Contract unless with the written consent of the Government and the Contractor. Provided always that: -
64.1.3
64.1.4
64.1.5
64.1.6
64.1.7
64.1.8
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(a)
the issue of a Certificate of Practical Completion under Clause 46 shall be a condition precedent to the opening of any such reference, save with the consent of the Government and the Contractor; and no decision given by the S.O. in accordance with the foregoing provisions shall disqualify him from being called as a witness and giving evidence before the arbitrator on any matter whatsoever relevant to the dispute or difference so referred to the arbitrator as aforesaid.
(b)
64.2
Place of Arbitration The arbitration shall be held at the Regional Centre for Arbitration at Kuala Lumpur using the facilities and assistance available, and shall be conducted in English.
64.3
Related Disputes Where, in the Governments absolute discretion, it is beneficial to the Project for any dispute or part of a dispute between the Government and the Contractor to be resolved in the same arbitration proceedings as a dispute or a pending dispute between the Government and any other party or parties engaged upon the Project (the related dispute) then: -
64.3.1 if a notice to concur in the appointment of an arbitrator has been served in the related dispute, the Contractor hereby agrees that, at the Governments sole option, the dispute between the Government and the Contractor shall be referred to the arbitrator appointed or to be appointed in respect of the related dispute and be determined at the same time as such dispute; and 64.3.2 where an arbitrator has been appointed in connection with the related dispute, the Contractor hereby agrees that, at the Governments sole option, the dispute between the Government and the Contractor shall be referred to and be determined by the arbitrator so appointed contemporaneously with the related dispute. In the event of the said arbitrator declining to accept the further reference the Contractor hereby authorises the Government to apply, at its option, to the Director for the time being of the Regional Centre for Arbitration Kuala Lumpur for the appointment of a replacement arbitrator who is willing to determine both disputes. 64.4 Contemporaneous Determination of Related Dispute In the event of a related dispute being such that is in the Governments absolute discretion beneficial to the Project for it to be resolved by the arbitrator to whom a dispute between the Government and the Contractor under the Contract has been referred then the Contractor agrees that such dispute may, in the Governments sole discretion, be determined by the said arbitrator contemporaneously with the determination of the said dispute between the Government and the Contractor. In the event of the said arbitrator declining to accept the further reference the Contractor hereby authorises the Government to apply, at its option, to the Director for the time being of the Regional Centre for Arbitration Kuala Lumpur for the appointment of a replacement arbitrator who is willing to determine both disputes.
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65
65.1 65.1.1
NOTICES
Service of Notices Where any notice or other document is to be given to or served by either party upon the other it shall be deemed to have been duly given or served if it shall have been left at the address of such party as set out herein or at such other address as may be notified by either party to the other from time to time, or sent through the post addressed to such address. Any notice to be given under the Contract shall be typescript or printed, and if sent by post shall be deemed to have been served seven (7) Days after posting. Any notice, demand or communication shall be deemed to have been duly served by one Party on the other: (a) (b) (c) (d) if delivered personally, on the day of delivery; if sent by facsimile transmission, on the day of the conclusion of transmission; if sent by post, two (2) Days after the date of the letter; and if sent by pre-paid registered post, on the day of receipt;
65.1.2
65.1.3
In proving the service of any notice, demand or communication by one Party on the other, it shall be sufficient to prove: (a) in the case of a letter sent by post, that such letter was properly stamped, addressed and placed in the post; in the case of a letter sent by hand, that such letter was addressed and delivered or left at the address specified in Appendix 1 and acknowledged by the receiving Party; in the case of a letter sent by pre-paid registered post, an acknowledgment of receipt issued by the postal authorities in Malaysia; and in the case of a notice, demand or communication sent by facsimile that such facsimile transmission was duly dispatched to the facsimile number of the addressee set out in Appendix 1.
(b)
(c)
(d)
66
66.1
CHANGES IN LEGISLATION
Legislation If, after the issue of the Letter of Acceptance, there occurs in Malaysia any change to the Statutory Requirements which results in the Contractor incurring additional or reduced costs in the Execution of the Works, beyond that which was reasonably foreseeable by an experienced contractor, such additional or reduced costs shall, after due consultation with the Contractor, be determined by the S.O. and shall be added to or deducted from the Contract Sum and the S.O. shall notify the Contractor accordingly, with a copy to the Government.
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66.2
No increases in cost Subject only to Clause 66.1, no adjustment shall be made in respect of any increase or decrease in the cost of labour, Plant, Materials or any other matters whatsoever relevant to the Contract Sum resulting from a change in the Statutory Requirements after the issue of the Letter of Acceptance.
67
67.1
TAXATION
Malaysian Taxes The Contractor will be required to pay all Malaysian taxes payable by itself or its servants, agents and Sub-Contractors and Suppliers as is chargeable under the Laws for the time being in force. The Contract Sum shall be deemed to include for payment of all such taxes by the Contractor.
67.2
Income Tax Payable by Employees The Contractors employees will be liable to pay Malaysian Income Tax in respect of their salaries and other emoluments as are chargeable therewith under the Laws for the time being in force and the Contractor shall perform such duties in regard to the deduction thereof as may be lawfully imposed on him by the Malaysian Government.
68
REGISTRATION OF ENGINEERS, ARCHITECTS AND SURVEYORS

The Contractor shall comply with the Registration of Engineers Act 1967, the Architects Act 1967, the Quantity Surveyors Act 1967, and the Registration of Land Surveyors Ordinance 1955 in respect of all persons employed by him and by any Sub-Contractor and Supplier.
69
USE OF EXPLOSIVES
Unless otherwise expressly provided in the Contract Documents, or ordered by the S.O., the Contractor shall not use any explosives in the Execution of the Works.
70
BRIBERY
Any commission, advantage, gift, gratuity, reward or bribe given promised or offered by or on behalf of the Contractor or its agent or servant or any other person on its or their behalf to any officer, servant, representative or agent of the Government or of the S.O. or to any person on their behalf or on behalf of any of them in relation to the obtaining or to the execution of this or of any other contract with the Government shall in addition to any criminal liability which may be thereby incurred subject the Contractor to the termination, at the sole discretion of the Government, of the Contract and all other contracts which it may have entered into with the Government and also to payment of any loss or damage resulting from such termination. Any termination of the Contract pursuant to this Clause shall be treated as a termination pursuant to Clause 60 and the provisions of Clause 60.3 shall apply. Provided that the Government shall be entitled upon a certificate of the S.O. to deduct the amount so determined under Clause 60.3 from any monies otherwise due or which may become due to the Contractor under the Contract or any other contract or to recover the said amounts as a debt due or partly the one and partly the other as the Government shall deem advisable.
71
NO WAIVER
No neglect, delay or forbearance of the Government to require or enforce the performance and observance of any terms in this Contract shall in any way prejudice or affect any of the rights or
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remedies of the Government in respect of any act, omission, neglect, default or breach by the Contractor or any Sub-Contractor or Supplier. No waiver by the Government of such rights, powers or remedies shall be effective unless notified and signed by a duly authorised representative of the party electing to such waiver.
72
STAMP DUTY
The proper Stamp Duty, if any, on the Contract will be borne by the Government, who shall arrange for such stamping.
73
CONFIDENTIALITY
The Contractor shall not use or divulge, except for the purpose of the Contract or with the express written permission of the S.O., any information relating to the Works or to the Project or any correspondence or documentation emanating from or provided by or on behalf of the Government, the S.O. or any third party or give or make any statements or comments to the media in relation to the Works or the Project. The Contractor shall ensure that each of its Sub-Contractors and Suppliers and each parent company or shareholder of the Contractor shall be bound by a like confidentiality undertaking and shall, if so required by the S.O., enforce the same at its own expense.
74
ADVERTISING PROHIBITED
The Contractor shall not exhibit or permit to be exhibited any advertisement on the Site, Equipment or Temporary Works. All notices at the Site shall be subject to the approval of the S.O. before they are put up and they shall be removed immediately if the S.O. so demands.
75
75.1
GOVERNING LAW
Malaysian Contract The Contract shall be governed by and construed according to laws for the time being in force in Malaysia and, subject to Clause 64, the Malaysian Courts shall have exclusive jurisdiction to hear and determine all actions and proceedings arising out of the Contract and the Contractor hereby submits to the jurisdiction of the Malaysian Courts for the purpose of any such actions and proceedings.
75.2
The Contractors Undertaking for Decision Made The Contractor acknowledges and accepts as final in all respects within the country of domicile of the Contractor or elsewhere any decision or award of an arbitration or judgement in any Malaysian Court in relation to any difference or dispute between the parties under the Contract whether in respect of payments to be made thereunder or in other matters. This undertaking is valid in all respects whenever any such decision award or judgement is to be enforced in the Courts of the country of domicile of the Contractor or elsewhere in any manner.
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APPENDIX 1 CONTRACT PARTICULARS Clause Defects Liability Period 24 Months
Superinteding Officer
Secrerary General Ministry of Transport Malaysia 5 years
Warranty Period
Amount of Performance Bond and expiry date Name of Company(ies) parent company guarantee Time for Completion providing
5% of the Contract Sum To be named by the Tenderer
48 Months (or the period alternatively offered by the Tenderer and accepted by the Employer) calculated from the Commencement Date or as extended under Clause 42
Liquidated damages Percentage limit to Contractors profit and attendance on actual cost expended against Provisional Sum carried out by others. Total actual cost expended against Provisional sum Percentage Profit & Attendance limit on total actual cost expended
Address for service of notices on Superintending Officer
Vol. 1 Governments Requirement For Infrastructure Package Part 2 - 10 SPCOC Infra Works Package Appendix 1
12-Jun-02
APPENDIX 2 FORM OF PERFORMANCE BOND
TO:
Government of Malaysia ( the "Government")
WHEREAS: (A) By the contract dated [ ] (the "Contract") made between (1) the Employer and (2) [ ] (the "Contractor"), the Contractor has agreed to design __________________________________(the "Works") upon the terms and conditions contained in the Contract. The terms of the Contracts oblige the Contractor to provide a Bond to the Government.
(B)
In consideration of your accepting our obligations herein contained in discharge of the Contractor's obligations to provide such Bond we, [Full name and address of bank] hereby irrevocably and unconditionally agree to pay to you the Amount as defined in Clause 2 below and accordingly covenant with you and agree as follows: 1. Upon receipt of a written demand made by you upon us from time to time or at any time and without being entitled or obliged to make any enquiry either of you or of the Contractor, and without the need for you to take legal action against or to obtain the consent of the Contractor, and notwithstanding any objection by the Contractor and without any further proof or conditions and without any right of set-off or counterclaim, we shall forthwith pay to you the amount or amounts specified in such demand or demands, not exceeding in aggregate the Maximum Amount, it being confirmed that you may make as many separate demands hereunder as you think fit. Such payment or payments shall be made by transfer to an account in your name at such bank in such place as you shall direct. You shall not be obliged to exercise any other right or remedy you may have before making a demand under this Bond. The Amount shall be_________________: Your demand shall be conclusive evidence of our liability to pay you and of the amount of the sum or sums which we are liable to pay to you. Our obligation to make payment under this Bond shall be a primary, independent and absolute obligation and we shall not be entitled to delay or withhold payment for any reason. Our obligations hereunder shall not be affected by any act, omission, matter or thing which but for this provision might operate to release or otherwise exonerate us from our obligations hereunder in whole or in part, including without limitation and whether or not known to us or you: (a) (b) any time or waiver granted to the Contractor or any other person; the taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any rights, remedies or securities against the Contractor or any other person; any dispute between you and the Contractor or any allegation that the Contractor has claims against you or any objection or representation made to us by the Contractor; any variation of or amendment to the Contracts or either of them or the works to be performed thereunder or any other document or security so that references to the Contracts in this Bond shall include each such variation and amendment; and 1
2. 3.
(c)
(d)
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(e)
any unenforceability, invalidity or frustration of any obligations of the Contractor or any other person under the Contracts or either of them or any other document or security.
4.
Any payment made hereunder shall be made free and clear of, and without deduction for or on account of, any present or future taxes, duties, charges, fees, deductions or withholdings of any nature whatsoever and by whomsoever imposed. The benefit of this Bond and all rights and powers hereunder may be assigned by you. This Bond shall be governed by and construed in accordance with the laws of Malaysia and we hereby agree to submit to the non-exclusive jurisdiction of the courts of Malaysia over any claim arising out of this Bond. Notwithstanding any provisions hereinbefore to the contrary, this Bond shall, unless renewed, expire on [ ] and claims if any must be received by us during the validity of the Bond or within _______________months from the expiry date of the bond.
5. 6.
7.
IN WITNESS WHEREOF this Bond has been executed on the [ The Common Seal of the [Bank] was hereunto affixed in the presence of: ) ) )
] day of [ ], 200[
].
OR
Signed by for and on behalf of [Bank] in the presence of:
) ) )
12-Jun-02
APPENDIX 3 FORM OF SUPPLIER'S WARRANTY
THIS AGREEMENT is made the BETWEEN: 1. [ ] (the " Supplier") and
day of
199
] [whose registered office is at]/[of] [
2.
The Government of Malaysia (together with its successors and assigns, the "Government").
WHEREAS (A) By a contract dated [ ] (the "Main Contract") made between (1) the Government and (2) [ ] (the "Main Contractor"), the Main Contractor has agreed to execute works (the "Works) as described in and upon the terms and conditions contained in the Main Contract. The Supplier has had an opportunity of reading and noting the provisions of the Main Contract and all documents forming part of the Main Contract (other than its financial provisions). Pursuant to the Main Contract, the Main Contractor wishes to enter into an agreement with the Supplier (the "Sub-Contract") for the Supplier to manufacture, supply and deliver certain Materials (the "Materials") and to carry out and complete a part of the Works as more particularly described in the Sub-Contract (the "Sub-Contract Works"). The Main Contract stipulates that the Main Contractor shall obtain the consent of the Superinteding Officer ("S.O.") before entering into the Sub-Contract, and the agreement by the Supplier to execute this Warranty Agreement in favour of the Government shall be a condition precedent for the S.O. in approving the Sub-Contract. It is acknowledged that in consenting to the appointment of the Supplier the Government is relying upon the skill, judgement and expertise of the Supplier in the design (to the extent provided in the SubContract), the manufacture and testing of the Materials, the supply, delivery and installation thereof and the co-ordination and planning thereof.
(B)
(C)
(D)
(E)
NOW IT IS HEREBY AGREED as follows:1. In consideration of the S.O. as agent for the Government consenting to the Main Contractor and the Supplier entering into the Sub-Contract, the Supplier warrants and undertakes to the Government that it has carried out and will carry out the manufacture of the Materials (where such manufacture is to be 1
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carried out by the Supplier), supply of the Materials and complete the Sub-Contract Works and (if and in so far as any design will be carried out by the Supplier) the design of the Materials and the SubContract Works and each and all of the obligations, duties and undertakings of the Supplier under the Sub-Contract when and if such obligations, duties and undertakings shall become due and performable in accordance with the terms of the Sub-Contract (as the same may from time to time be varied or amended with the consent of the Government). Without prejudice to the generality of the foregoing or to any terms and conditions implied by law, the Supplier warrants and undertakes to the Government as follows: 1.1 that the Supplier has exercised and will exercise all proper skill and care to be expected of a specialist in the sphere of expertise of the Supplier in:(a) the design of the Sub-Contract Works and Materials to be supplied as part therefor insofar as the Sub-Contract Works and Materials have been or will be designed by the Sub-Contractor, his servants, agents, sub-contractors or suppliers; and the selection of the Materials, materials and goods comprised therein for the SubContract Works insofar as such Materials, materials and goods have been or will be selected by the Supplier, his servants, agents, sub-contractors or suppliers;
(b)
1.2
that the Sub-Contract Works and any Materials supplied and/or installed by the Supplier will, when completed, supplied or installed, satisfy any performance specification or requirement included or referred to in the Sub-Contract; that, insofar as the Sub-Contract Works and the Materials or any part thereof have been or will be designed by the Supplier, his servants, agents, sub-contractors or suppliers, they will, when completed, be jointly and severally fit for the purposes for which they are required as part of the Works; that the Sub-Contract Works and the Materials, materials and goods used therein will correspond as to description, quality and condition with the requirements of the Sub-Contract and be of sound manufacture and workmanship; that, insofar as the Materials and the Sub-Contract Works or any part thereof have been or will be designed by the Supplier, his servants, agents, sub-contractors or suppliers, they will, when completed, comply with the statutory requirements as defined in the Main Contract.
1.3
1.4
1.5
2.
The Supplier undertakes to indemnify the Government against:2.1 each and every liability which the Government may have to any person whatsoever and against any claims, demands, proceedings, damages, costs and expenses sustained, incurred or payable by the Government, and/or any payment which the Government is liable to make to the Main Contractor in respect of additional sums suffered or incurred by the Main Contractor or any other sub-contractor or supplier engaged upon the Works, 2
2.2
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insofar as and to the extent that the same has arisen by reason of any breach, act, default and/or omission by the Supplier, his servants, agents, sub-contractors or suppliers, of the Supplier's obligations under the Sub-Contract or this Warranty. 3. No allowance of time by the Government hereunder or by the Main Contractor under the Sub-Contract nor any forbearance or forgiveness in or in respect of any matter or thing concerning this Warranty or the Sub-Contract on the part of the Government or the Main Contractor, nor anything that the Government or the Main Contractor may do or omit or neglect to do, shall in any way release the Supplier from any liability under this Warranty. The Supplier agrees that it will not, without first giving the Government not less than 21 days' prior notice in writing, exercise any right it may have to terminate the Sub-Contract or treat the same as having been repudiated by the Main Contractor or withhold performance of its obligations under the Sub-Contract. In the event that the Main Contract is terminated or the employment of the Main Contractor under the Main Contract is terminated for any reason whatsoever, the Supplier, if so requested by the Government, shall carry out and complete its obligations under this Warranty and shall enter into a novation agreement with the Government and the Main Contractor in which the Supplier will undertake inter alia to perform the Sub-Contract and be bound by its terms and conditions as if the Government had originally been named as a contracting party in place of the Main Contractor. The said novation agreement will be in such form as the Government may reasonably require. In the event that the Government does not require the Supplier to enter into a novation agreement as required by Clause 5.1, the Supplier shall have no claim whatsoever against the Government for any damage, loss or expense howsoever arising out of or in connection with this Warranty. In so far as the copyright or other intellectual property rights, in any plans, calculations, drawings, documents, materials, know-how and information relating to the Materials and the Sub-Contract Works shall be vested in the Supplier, the Supplier grants to the Government its successors and assigns a royalty free, non-exclusive and irrevocable licence (carrying the right to grant sub-licences) to use and reproduce any of the works designs or inventions incorporated and referred to in such documents or materials and any such know-how and information for all purposes relating to the Works (including without limitation the design, execution, maintenance, reinstatement, extension and repair of the Works). To the extent beneficial ownership of any such copyright or other intellectual property right is vested in anyone other than the Supplier, the Supplier shall use best endeavours to procure that the beneficial owner thereof shall grant a like licence to the Government. For the avoidance of doubt, any such licence granted shall not be determined if the Supplier shall for any reason cease to be employed in connection with the Sub-Contract Works. In the event of any ambiguity or conflict between the terms of the Sub-Contract and this Warranty, the terms of this Warranty shall prevail.
4.
5.1
5.2
6.
7.
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8.
The provisions of this Warranty shall be without prejudice to and shall not be deemed or construed so as to limit or exclude any rights or remedies which the Government may have against the Supplier whatsoever. Nothing contained in this Warranty shall vary or affect the Supplier's rights and obligations under the Sub-Contract. The Government shall be entitled at any time, without the consent of the Supplier to assign or transfer the benefit of this Warranty or any part thereof and any interest therein or any benefit arising thereunder, whether past, existing or future to any third party, notified by the Government. In the event of any such assignment or transfer by the Government in accordance with Clause 10,1 above, such assignee or transferee shall from the date thereof have the same rights, powers and remedies as it would have had if it had at all times been the Government under this Warranty. Without prejudice to the generality of the foregoing, all losses, costs, demands, claims, proceedings or any other rights or benefits whatsoever, (whether past, present or future) of the Government related to or in any way connected with or arising out of this Warranty, are deemed to be those of any assignee or transferee of the Government. The Supplier shall not be entitled to assign the Sub-Contract or any part thereof without express written consent of the Government. All documents arising out of or in connection with this Warranty shall be served:11.1 upon the Government at for the attention of the Superintending Officer; and upon the Supplier, at [ Kuala Lumpur, Malaysia, marked
9.
10.1
10.2
10.3
11.
11.2 12.
this must be an address in Malaysia
].
The Government and the Supplier may change their respective nominated addresses for service of documents to another address in Malaysia but only by prior written notice to each other. All demands and notices must be in writing and must be served by registered post at the relevant address or served by hand at such address. This Warranty shall be governed by and construed according to the laws for the time being in force in Malaysia. If any dispute or difference shall arise between the Government and the Supplier either during the period of the Sub-Contract or after the expiry thereof or after the termination of the Supplier's employment under this Sub-Contract, or breach of this Sub-Contract, as to : (a) (b) the interpretation of this Warranty; or any matter or thing of whatsoever nature arising under this Warranty;
13.
14.1
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then such dispute may be referred by either party, by notice in writing to the other, with a copy to the S.O., to Arbitration and final decision of a person to be agreed between the parties to act as Arbitrator, or, failing agreement to be nominated on the application of either party by the Director for the time being of the Regional Centre for Arbitration in Kuala Lumpur and any such reference shall be deemed to be a submission to arbitration within the meaning of the Arbitration Act. No. 93 (Revised 1972) of Malaysia or any other law amending or replacing this Act. 14.2 Arbitration of such dispute shall not be commenced unless an attempt has first been made by the parties to settle such dispute amicably; such attempt will take the form of a mediation in accordance with the Rules set out in Appendix 10 to the Main Contract by an agreed third party neutral or failing agreement by a neutral appointed by the President, for the time being, of the Board of Engineers. The arbitration shall be held at the Regional Centre for Arbitration at Kuala Lumpur, using the facilities and assistance available at the Centre. The arbitrator shall have power to determine all matters in dispute which shall be submitted to him, and of which notice shall have been given in accordance with Clause 14.1 aforesaid. Upon every or any such reference the costs of such incidental to the reference and award shall be in the discretion of the arbitrator who may determine the amount thereof, or direct the amount to be taxed as between solicitor and client or as between party and party, and shall direct by whom and to whom and in what manner the same be borne and paid. The award of the arbitrator shall be final and binding on the parties. In the event of the death of the arbitrator or his unwillingness or inability to act, then the Government and the Supplier upon agreement shall appoint another person to act as the arbitrator, and in the event the Government and the Supplier failing to agree on the appointment of an arbitrator, an arbitrator shall be appointed, on the application of either party, by the Director for the time being of the Regional Centre for Arbitration Kuala Lumpur. Where, in the Government's absolute discretion it is beneficial to the Project for any dispute or part of a dispute between the Government and the Supplier to be resolved in the same arbitration proceedings as a dispute or a pending dispute between the Government and the Main Contractor or any other party or parties engaged upon the Project (the "related dispute") then (i) if a notice to concur in the appointment of an arbitrator has been served in the related dispute, the Government and the Supplier hereby agree that, at the Government's sole option, the dispute between the Government and the Supplier shall be referred to the arbitrator appointed or to be appointed in respect of the related dispute and be determined at the same time as such dispute. where an arbitrator has been appointed in connection with the related dispute, the Supplier hereby agrees that, at the Government's sole option, the dispute between the Government and the Supplier shall be referred to and be determined by the arbitrator 5
14.3
14.4
14.5
14.6 14.7
14.8
(ii)
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so appointed contemporaneously with the related dispute. In the event of the said arbitrator declining to accept the further reference the Supplier hereby authorises the Government to apply, at his option, to the Director for the time being of the Regional Centre for Arbitration Kuala Lumpur for the appointment of a replacement arbitrator who is willing to determine both disputes. 14.9 In the event of a related dispute being such that is in the Government's absolute discretion beneficial to the Project for it to be resolved by the arbitrator to whom a dispute between the Government and the Supplier under this Sub-Contract has been referred then the Supplier agrees that such dispute may, in the Government's sole discretion, be determined by the said arbitrator contemporaneously with the determination of the said dispute between the Government and the Supplier. In the event of the said arbitrator declining to accept the further reference the Supplier hereby authorises the Government to apply, at his option, to the Director for the time being of the Regional Centre for Arbitration Kuala Lumpur for the appointment of a replacement arbitrator who is willing to determine both disputes.
IN WITNESS whereof the parties hereto have hereunto set their respective hands the day and year first above written.
SIGNED by for and on behalf of in the presence of
) ) ) )
) ) ) )
12-Jun-02
APPENDIX 3 FORM OF SUB-CONTRACTORS WARRANTY AND INDEMNITY
THIS AGREEMENT is made given the BETWEEN: 1. [ ] (the "Sub-Contractor") and 2. The Government of Malaysia of "Government"). WHEREAS (A) By a contract dated [
day of
2000
] [whose registered office is at]/[of] [
(together with its successors and assigns, the
2002] (the "Contract") made between the Government and (
) (the " Contractor"), the Contractor has agreed _______________________________________ (the "Works"), as described in and upon the terms and conditions contained in the Contract. (B) The Sub-Contractor has had an opportunity of reading the provisions of the Contract and all the documents forming part of the Contract (other than its financial provisions). (C) Pursuant to the Contract, the Contractor wishes to enter or has entered into an agreement with the SubContractor (the "Sub-Contract") for the Sub-Contractor to carry out the works more particularly described in the Sub-Contract (the "Sub-Contract Works"). (D) The parties have agreed to enter into this Agreement.
NOW IT IS HEREBY AGREED as follows:1. 1.1 Care, Skill and Reliance In consideration of the Superintending Officer (the S.O.) as agent for the Government consenting to the Sub-Contractor being appointed by the Contractor to perform the Sub-Contract Works, the SubContractor warrants and undertakes to the Government that:
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1.1.1
in and about the performance of the Sub-Contract Works the Sub-Contractor has exercised and will exercise all the skill, care and diligence to be expected of a properly qualified and competent sub-contractor experienced in carrying out work of a similar size, scope and complexity to the Project; and.
1.1.2
it has complied and will continue to comply with the terms of and fulfil its obligations set out in the Sub-Contract; and
1.2
If and to the extent that the Sub-Contractor is undertaking and/or carrying out any design under or in connection with the Sub-Contract, the Sub-Contractor will not specify or permit the use of substances generally known at the time of design to be deleterious to health or safety during construction or during the design life of the Works nor other substances generally known at the time of design to be likely adversely to affect the functioning or design life of the Works or the health and safety of persons using the same.
1.3
The Sub-Contractor acknowledges and accepts that the Government has and shall be deemed to have relied upon the Sub-Contractors reasonable skill, expertise and judgement in respect of those matters which relate to the Sub-Contractors obligations pursuant to the Sub-Contract, and the management and co-ordination thereof.
2. 2.1
Indemnity The Sub-Contractor undertakes to indemnify the Government from and against:2.1.1 each and every liability that the Government may have to any person whatsoever and from and against any claims, demands, proceedings, damages, costs, losses and/or expenses that may be sustained, incurred or payable by the Government, and/or 2.1.2 any payment that the Government is liable to make to the Contractor in respect of additional sums suffered or incurred by the Contractor or any other Sub-Contractor or supplier engaged upon the Works and/or the Project, insofar as and to the extent that the same has arisen by reason of any act, breach, default, and/or omission, by the Sub-Contractor, his servants, employees and/or agents, of the Sub-Contractor's obligations under the Sub-Contract or this Agreement and/or any mistake, deficiency and/or inadequacy of the Sub-Contract Works or any part thereof undertaken by the Sub-Contractor, his servants or agents.
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3.
Knowledge of Government The obligations of the Sub-Contractor under this Agreement shall not be diminished, discharged or released or in any other way lessened or affected by any independent enquiry into any relevant matter that may be made or carried out by or on behalf of the Government or any knowledge of the Government or the Governments Representative, or by any allowance of time by the Government hereunder or by the Contractor under the Sub-Contract, or by any forbearance or forgiveness in or in respect of any matter or thing concerning this Agreement or the Sub-Contract on the part of the Government or the Contractor, nor anything that the Government or the Contractor may do or omit or neglect to do.
4.
Notice of Termination Etc. The Sub-Contractor agrees that it will not, without first giving the Government not less than twenty one (21) Days' prior notice in writing, exercise any right it may have to terminate the Sub-Contract or treat the same as having been repudiated by the Contractor or withhold performance of its obligations under the Sub-Contract.
Novation In the event that the Contract is terminated or the employment of the Contractor under the Contract is terminated for any reason whatsoever, the Sub-Contractor, if so requested by the Government, shall carry out and complete its obligations under this Agreement. The Sub-Contractor shall, within such period as the Government may specify, enter into a novation agreement with the Government or his nominee and the Contractor in which the Sub-Contractor will undertake inter alia to perform the SubContract Works and be bound by the terms and conditions of the Sub-Contract as if the Government had originally been named as a contracting party in place of the Contractor. The said novation agreement will be in such form as the Government may reasonably require.
6. 6.1
Copyright In so far as the copyright or other intellectual property rights, in any Documents (after defined) relating to the Sub-Contract Works, the Works and/or the Project shall be vested in the Sub-Contractor, the Sub-Contractor shall at its own cost, and within such period as the Government may specify or if no period is specified, within a reasonable period after execution of this Agreement, take all necessary or desirable steps to assign or transfer the said copyright or other intellectual property rights in any Documents The Sub-Contractor shall not be liable for any use by the Government of any Documents (after defined) for any purpose other than that for which the same were prepared and/or provided by the Sub-Contractor. To the extent that the beneficial ownership of any such copyright or other intellectual property right is vested in anyone other than the Sub-Contractor, the Sub-Contractor shall
12-Jun-02
use its best endeavours to procure that the beneficial owner thereof shall assign or transfer such rights to the Government. 6.2 The Sub-Contractor shall, upon written request, provide to the Government, immediately upon payment of the reasonable cost of producing the same:6.2.1 copies of and extracts from any plans, calculations, records, drawings, documents, computer software, materials, know-how, information and/or other documents (including information technology material and computer assisted design material) prepared by or on behalf of the Sub-Contractor in relation to the Works and/or the Project and all revisions and additions (whether in existence or to be made) (the Documents); and 6.2.2 such other information in relation to the Project and/or the Works as the Sub-Contractor can reasonably supply. 6.3 References to the Government in this Clause 6 shall include its first successors in title and all other persons authorised by the Government. 7. 7.1 Insurance If the Sub-Contractor is carrying out any design under or in connection with the Sub-Contract, without prejudice to the Sub-Contractors other obligations under the Sub-Contract or this Agreement, the SubContractor warrants having effected and shall maintain for a period of not less than [fifteen (15)] years from the date of issue of the Taking Over Certificate in respect of the whole of the Works in accordance with the Contract, professional indemnity insurance for an amount of not less than .................. Million Ringgit (RM..................) for any one occurrence or series of occurrences arising out of any one event with insurers or underwriters of substance and repute in Malaysia, provided always that such insurance is available to the Sub-Contractor at commercially reasonable rates or insofar as it is not available on commercial terms this unavailability is not as a result of the financial condition or claims history of the Sub-Contractor. Further the Sub-Contractor warrants that the insurance shall not be subject to any unusual or unduly onerous conditions, limitations, exclusions or excesses. 7.2 As and when it is requested to do so by the Government or the S.O., the Sub-Contractor shall produce for inspection documentary evidence (including, if required by the Government, the original of the relevant insurance documents) which establishes to the Governments satisfaction that its professional indemnity insurance is being maintained. For the avoidance of doubt, in the event that such insurance is, in the Governments or S.O.s sole absolute and unfettered discretion, insufficient or unsatisfactory, the Sub-Contractor shall, on notification, procure such further or other insurances and/or extensions to the insurance as may be required and/or specified by the Government at the Sub-Contractors own
12-Jun-02
costand the Sub-Contractor shall have no rights of claim against the Government for any and all cost incurred by the Sub-Contractor as a result of the same. 8. 8.1 Assignment The Government shall be entitled at any time, without the consent of the Sub-Contractor, to assign or transfer the benefit of this Agreement or any part thereof and any interest therein or any benefit arising thereunder, whether past, existing or future to any third party. 8.2 The Sub-Contractor is not entitled to assign this Agreement or any part thereof without express written consent from the Government. 9. 9.1 Notices All documents arising out of or in connection with this Agreement shall be served:9.1.1 upon the Government at Kuala Lumpur, Malaysia, marked for the attention of the Managing Director; and 9.1.2 9.2 upon the Sub-Contractor, at [ this must be an address in Malaysia ].
Any notice to be served pursuant to this Agreement shall be in writing and may be served by personally delivering the same by hand, by sending the same by telex, facsimile transmission or other means of telecommunication in permanent written form or by recorded delivery post. The addresses for service of the Government, the Sub-Contractor and the Contractor are those stated in this Agreement or such other address as the party to be served may have previously notified in writing to the other party. A notice if sent by registered post shall be deemed to have been served on the date of receipt by the addressee as confirmed by the postal authorities.
9.3
Copies of all notices required by this Agreement shall be given either to the Sub-Contractor or the Government or the Contractor and shall be sent simultaneously to the other party or parties to this Agreement, and to the Governments Representative, by the party giving the notice.
10.
Governing Law This Agreement shall be governed by and construed according to the laws for the time being in force in Malaysia.
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11. 11.1
Disputes If any dispute or difference shall arise between the Government and the Sub-Contractor either during the period of the Sub-Contract or after the expiry thereof or after the termination of the SubContractor's employment under the Sub-Contract, as to : (a) (b) the interpretation of this Agreement; or any matter or thing of whatsoever nature arising under this Agreement;
then such dispute may be referred by either party, by notice in writing to the other, with a copy to the S.O., to arbitration and final decision of a person to be agreed between the parties to act as arbitrator, or, failing agreement to be nominated on the application of either party by the Director for the time being of the Regional Centre for Arbitration in Kuala Lumpur and any such reference shall be deemed to be a submission to arbitration within the meaning of the Arbitration Act. No. 93 (Revised 1972) of Malaysia or any other law amending or replacing this Act. 11.2 Arbitration of such dispute shall not be commenced unless an attempt has first been made by the parties to settle such dispute amicably; such attempt will take the form of a mediation in accordance with the Rules set out in Appendix 5 to the Contract by an agreed third party neutral or failing agreement by a neutral appointed by the President, for the time being, of the Board of Engineers. 11.3 The arbitration shall be held at the Regional Centre for Arbitration at Kuala Lumpur, using the facilities and assistance available at the Centre. 11.4 The Arbitrator shall have power to determine all matters in dispute that shall be submitted to him, and of which notice shall have been given in accordance with Clause 9 aforesaid. 11.5 Upon every or any such reference the costs incidental to the reference and award shall be in the discretion of the arbitrator who may determine the amount thereof, or direct the amount to be taxed as between solicitor and client or as between party and party, and shall direct by whom and to whom and in what manner the same be borne and paid. 11.6 11.7 The award of the arbitrator shall be final and binding on the parties. In the event of the death of the Arbitrator or his unwillingness or inability to act, then the Government and the Sub-Contractor upon agreement shall appoint another person to act as the arbitrator, and in the event the Government and the Sub-Contractor failing to agree on the Sub-Contract of an arbitrator, an arbitrator shall be appointed, on the application of either party, by the Director for the time being of the Regional Centre for Arbitration Kuala Lumpur.
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11.8
Where, in the Government's absolute discretion it is beneficial to the Works and/or the Project for any dispute or part of a dispute between the Government and the Sub-Contractor to be resolved in the same arbitration proceedings as a dispute or a pending dispute between the Government and the Main Contractor or any other party or parties engaged upon the Works and/or the Project (the "related dispute") then (a) if a notice to concur in the Sub-Contract of an arbitrator has been served in the related dispute, the Government and the Sub-Contractor hereby agree that, at the Government's sole option, the dispute between the Government and the Sub-Contractor shall be referred to the arbitrator appointed or to be appointed in respect of the related dispute and be determined at the same time as such dispute. (b) where an arbitrator has been appointed in connection with the related dispute, the SubContractor hereby agrees that, at the Government's sole option, the dispute between the Government and the Sub-Contractor shall be referred to and be determined by the arbitrator so appointed contemporaneously with the related dispute. In the event of the said arbitrator declining to accept the further reference the Sub-Contractor hereby authorises the Government to apply, at his option, to the Director for the time being of the Regional Centre for Arbitration Kuala Lumpur for the Sub-Contract of a replacement arbitrator who is willing to determine both disputes.
11.9
In the event of a related dispute being such that is in the Government's absolute discretion beneficial to the Works and/or the Project for it to be resolved by the arbitrator to whom a dispute between the Government and the Sub-Contractor under this Agreement has been referred, then the Sub-Contractor agrees that such dispute may, in the Government's sole discretion, be determined by the said arbitrator contemporaneously with the determination of the said dispute between the Government and the SubContractor. In the event of the said arbitrator declining to accept the further reference the SubContractor hereby authorises the Government to apply, at his option, to the Director for the time being of the Regional Centre for Arbitration Kuala Lumpur for the Sub-Contract of a replacement arbitrator who is willing to determine both disputes.
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) ) ) )
SIGNED by for and on behalf of The Government of Malaysia in the presence of
) ) ) )
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APPENDIX 3A FORM OF DESIGNERS WARRANTY THIS AGREEMENT is made the day of 200 between [Insert name of Designer] of [Insert principal place of Designer] (the Designer) of the one part, and the Government of Malaysia (hereinafter called the Employer) of the other part. WHEREAS (A) By a contract dated [Date] (the Contract) made between the Employer and [Insert name of Contractor] of [Insert address of Contractor] (the Contractor), the Contractor has agreed to execute the works known as the Design, Construction, Completion, Testing, Commissioning & Maintenance of Electrified Double Track Project between Ipoh, Pulau Pinang and Padang Besar (West Malaysia) (the Works) upon the terms and conditions contained in the Contract, and in particular, the terms of the document known as the Special Provisions to the Conditions of Contract (the Special Provisions). The Designer has had an opportunity of examining the provisions of the Contract and each of the documents forming part of the Contract (other than its financial provisions). Pursuant to Clause Contract, the Contractor wishes to enter or has entered into an agreement with the Designer (the Sub-Contract) for the Designer to carry out the design services more particularly described in the Sub-Contract (the Design Services). The Designer and the Employer have agreed to enter into this Agreement.
(B)
(C)
(D)
NOW IT IS HEREBY AGREED as follows: 1. 1.1 Care, Skill and Reliance In consideration of the Superintending Officer (the S.O.) as agent for the Government consenting to the Designer being appointed by the Contractor to perform the Design Services, the Designer warrants and undertakes to the Government that: 75.1.1 in and about the performance of the Design Services the Designer will at all times exercise the skill, care and diligence to be expected of a properly qualified and competent design specialist experienced in carrying out work of a similar size, scope and complexity to the Design Services;
Vol. 1 Governments Requirement For Infrastructure Package Part 2 - 10 SPCOC Infra Works Package Appendix 3A
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75.1.2
any design provided pursuant to the Design Services or any part thereof undertaken by the Designer, his servants or agents will be fit in all respects for the particular purposes for which it was intended; and it will at all times comply with the terms of and fulfil its obligations under the SubContract, and will do all things necessary for the provision of the Design Services according to the true intent and meaning of the Sub-Contract, whether the same may or may not be particularly shown or described provided the same can be reasonably inferred therefrom.
75.1.3
1.2
The Designer will not specify or permit the use of substances generally known at the time of design to be deleterious to health or safety during construction or during the design life of the Works nor other substances generally known at the time of design to be likely to adversely affect the functioning or the design life of the Works or the health and safety of persons using the same. The Designer acknowledges and accepts that the Government has and shall be deemed to have relied upon the Designers skill, expertise and judgement in the performance and discharge of the Designers obligations pursuant to the Sub-Contract, and the management and co-ordination thereof. Indemnity The Designer undertakes to indemnify the Government from and against: 2.1.1 all claims, damages (including all consequential, special or indirect damages), expenses and/or losses (including losses of any profit, revenue, contract or other business opportunity (whether direct or indirect)) which the Government may have incurred, or may in its reasonable opinion incur, and/or insofar as and to the extent that the same has arisen by reason of any act, omission, negligence and/or default by the Designer, his servants, employees and/or agents of the Designer in connection with the Sub-Contract or this Agreement and/or any mistake, deficiency and/or inadequacy of any design provided pursuant to the Design Services or any part thereof undertaken by the Designer, his servants or agents.
1.3
2. 2.1
2.1.2
3.
Knowledge of Government
The obligations of the Designer under this Agreement shall not be diminished, discharged or released or in any other way lessened or affected by any independent enquiry into any relevant matter that may be carried out by or on behalf of the Government, or any knowledge of the Government or the S.O., or by any allowance of time by the Government hereunder or by the Contractor under the Sub-Contract, or by any forbearance or forgiveness in respect of any matter or thing concerning this Agreement or the Sub-Contract on the part of the Government or the Contractor, nor by any act, omission, negligence and/or default attributable to the Government or the Contractor. 4. Notice of Termination Etc. The Designer agrees that it will not, without first giving the Government not less than twenty one (21) days' prior notice in writing, exercise any right it may have to terminate the Sub-Contract or treat the
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same as having been repudiated by the Contractor or suspend the performance of its obligations under the Sub-Contract. 5. Novation In the event that the Contract is terminated or the employment of the Contractor under the Contract is determined for any reason whatsoever, the Designer, if so requested by the Government, shall carry out and complete its obligations under this Agreement. The Designer shall, within such period as the Government may specify, enter into a novation agreement with the Government or its nominee and the Contractor in which the Designer will undertake, inter alia, to perform the Design Services and be bound by the terms and conditions of the Sub-Contract as if the Government had originally been named as a contracting party in place of the Contractor. The said novation agreement will be in such form as the Government may reasonably require. 6. 6.1 Copyright In so far as the copyright or other intellectual property rights, in any Documents (as defined below) relating to the Design Services and/or the Works shall be vested in the Designer, the Designer shall at its own cost, and within such period as the Government may specify (or if no period is specified, within a reasonable period after execution of this Agreement), take all steps as the S.O. may deem necessary to assign or transfer the said copyright or other intellectual property rights in any Documents to the Government. The Designer shall not be liable for any use by the Government of any Documents for any purpose other than that for which the same were prepared and/or provided by the Designer. To the extent that the beneficial ownership of any such copyright or other intellectual property right is vested in anyone other than the Designer, the Designer shall use its best endeavours to procure that the beneficial owner thereof shall assign or transfer such rights to the Government. The Designer shall, upon the S.O.s written request, provide to the Government, immediately upon payment of the reasonable cost of producing the same: -
6.2
6.2.1
copies of and extracts from any plans, calculations, records, drawings, documents, computer software, materials, know-how, information and/or other documents (including information technology material and computer assisted design material) prepared by or on behalf of the Designer in relation to the Works and all revisions and additions (whether in existence or to be made) (the Documents); and such other information in relation to the Works as the Designer can reasonably supply. References to the Government in this Clause 6 shall include its first successors in title and all other persons authorised by the Government.
6.2.2
7. 7.1
Insurance Without prejudice to the Designers other obligations under the Sub-Contract or this Agreement, the Designer warrants that it shall effect and maintain for a period of not less than fifteen (15) years from the date of issue of the Certificate of Practical Completion in respect of the Works in accordance with the Contract, professional indemnity insurance for an amount of not less than .................. Million Ringgit (RM..................) for any one occurrence or series of occurrences arising out of any one event
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with insurers or underwriters acceptable to the Court. Further the Designer warrants that the insurance shall not be subject to any unusual or unduly onerous conditions, limitations, exclusions or excesses. 7.2 As and when it is requested to do so by the Government or the S.O., the Designer shall produce for inspection documentary evidence (including, if required by the Government, the original of the relevant insurance documents) which establishes to the Governments satisfaction that its professional indemnity insurance is being maintained. For the avoidance of doubt, in the event that such insurance is, in the S.O.s sole discretion, insufficient or unsatisfactory, the Designer shall, on notification, procure such further or other insurances and/or extensions to the insurance as may be required and/or specified by the Government at the Designers own cost and the Designer shall have no rights of claim against the Government for any and all cost incurred by the Designer as a result of the same. Assignment The Government shall be entitled at any time, without the consent of the Designer, to assign or transfer the benefit of this Agreement or any part thereof and any interest therein or any benefit arising thereunder, whether past, existing or future to any third party. The Designer is not entitled to assign this Agreement or any part thereof without express written consent from the Government. Notices All notices or communications to be served arising out of or in connection with this Agreement shall be served: 9.1.1 upon the Government at Kuala Lumpur, Malaysia, marked for the attention of the Managing Director; and upon the Designer, at [specify an address in Malaysia].
8. 8.1
8.2
9. 9.1
9.1.2 9.2
Any notice to be served pursuant to this Agreement shall be in writing and may be served by personally delivering the same by hand, by sending the same by telex, facsimile transmission or other means of telecommunication in permanent written form or by recorded delivery post. The addresses for service of the Government, the Designer and the Contractor are those stated in this Agreement or such other address as the party to be served may have previously notified in writing to the other party. A notice if sent by registered post shall be deemed to have been served on the date of receipt by the addressee as confirmed by the postal authorities. Copies of all notices required by this Agreement shall be given either to the Designer or the Government or the Contractor and shall be sent simultaneously to the other party or parties to this Agreement, and to the Governments Representative, by the party giving the notice. Governing Law This Agreement shall be governed by and construed according to the laws for the time being in force in Malaysia.
9.3
10.
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11. 11.1
Disputes If any dispute or difference shall arise out of or in connection with the Sub-Contract or the Design Services between the Government and the Designer either during the period of the Sub-Contract or after the expiry thereof or after the termination of the Designer's employment under the Sub-Contract, as to : (a) (b) the interpretation of this Agreement; or any matter or thing of whatsoever nature arising under this Agreement;
then such dispute or difference may be referred by either party, by notice in writing to the other, with a copy to the S.O., to arbitration and final decision of a person to be agreed between the parties to act as arbitrator, or, failing agreement to be nominated on the application of either party by the Director for the time being of the Regional Centre for Arbitration in Kuala Lumpur and any such reference shall be deemed to be a submission to arbitration within the meaning of the Arbitration Act. No. 93 (Revised 1972) of Malaysia or any other law amending or replacing this Act. 11.2 Arbitration of such dispute shall not be commenced unless an attempt has first been made by the parties to settle such dispute amicably; such attempt will take the form of a mediation in accordance with the Rules set out in Appendix 5 of the Special Provisions by an agreed third party neutral or failing agreement by a neutral appointed by the President, for the time being, of the Board of Engineers. The arbitration shall be held at the Regional Centre for Arbitration at Kuala Lumpur, using the facilities and assistance available at the Centre. The arbitrator shall have power to determine all matters in dispute that shall be submitted to him, and of which notice shall have been given in accordance with Clause 9 aforesaid. Upon every or any such reference, the costs incidental to the reference and award shall be in the discretion of the arbitrator who may determine the amount thereof, or direct the amount to be taxed as between solicitor and client or as between party and party, and shall direct by whom and to whom and in what manner the same be borne and paid. The award of the arbitrator shall be final and binding on the parties. In the event of the death of the Arbitrator or his unwillingness or inability to act, then the Government and the Designer upon agreement shall appoint another person to act as the arbitrator, and in the event the Government and the Designer failing to agree on the Sub-Contract of an arbitrator, an arbitrator shall be appointed, on the application of either party, by the Director for the time being of the Regional Centre for Arbitration Kuala Lumpur. Where, in the Government's absolute discretion it is beneficial to the Works for any dispute or part of a dispute between the Government and the Designer to be resolved in the same arbitration proceedings as a dispute or a pending dispute between the Government and the Main Contractor or any other party or parties engaged upon the Works (the related dispute) then
11.3
11.4
11.5
11.6 11.7
11.8
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11.8.1 if a notice to concur in the Sub-Contract of an arbitrator has been served in the related dispute, the Government and the Designer hereby agree that, at the Government's sole option, the dispute between the Government and the Designer shall be referred to the arbitrator appointed or to be appointed in respect of the related dispute and be determined at the same time as such dispute. 11.8.2 where an arbitrator has been appointed in connection with the related dispute, the Designer hereby agrees that, at the Government's sole option, the dispute between the Government and the Designer shall be referred to and be determined by the arbitrator so appointed contemporaneously with the related dispute. In the event of the said arbitrator declining to accept the further reference the Designer hereby authorises the Government to apply, at his option, to the Director for the time being of the Regional Centre for Arbitration Kuala Lumpur for the Sub-Contract of a replacement arbitrator who is willing to determine both disputes. 11.9 In the event of a related dispute being such that is in the Government's absolute discretion beneficial to the Works for it to be resolved by the arbitrator to whom a dispute between the Government and the Designer under this Agreement has been referred, then the Designer agrees that such dispute may, in the Government's sole discretion, be determined by the said arbitrator contemporaneously with the determination of the said dispute between the Government and the Designer. In the event of the said arbitrator declining to accept the further reference the Designer hereby authorises the Government to apply, at his option, to the Director for the time being of the Regional Centre for Arbitration Kuala Lumpur for the Sub-Contract of a replacement arbitrator who is willing to determine both disputes.
SIGNED by for and on behalf of in the presence of [insert Designers name]
) ) ) ) )
SIGNED by for and on behalf of The Government of Malaysia in the presence of
) ) ) )
12-Jun-02
APPENDIX 4 FORM OF PARENT COMPANY GUARANTEE
THIS GUARANTEE is made the BY:
day of
2000
of _________________________ (hereinafter called the "Guarantor") in favour of : GOVERNMENT OF MALAYSIA of Whereas: (A) By a Contract dated [ ] (the " Contract") made between the Government and [ of ] (the "Contractor"), the Contractor has agreed to __________________________________________ (the "Works") upon the terms and conditions contained in the Contract. The Contractor is a [wholly owned] subsidiary company of the Guarantor under the [ Act]. The Guarantor has agreed to guarantee the due performance of the Contract by the Contractor in the manner set out below. The terms of the Contract oblige the Contractor to provide a guarantee to the Government. (hereinafter called the "Government")
(B) (C)
(D)
NOW THIS GUARANTEE WITNESSETH as follows : 1 In consideration of the Government accepting the Guarantor's obligations set out in this Guarantee in discharge of the Contractor's obligations to provide such guarantee under the Contract, the Guarantor hereby irrevocably and unconditionally guarantees to the Government and its successors and assigns as a primary obligation and not as a surety, the full, faithful, proper and punctual performance, observance and compliance respectively by the Contractor and its successors of each and every one of the terms, provisions, conditions, obligations, covenants, warranties, undertakings and agreements on the part of the Contractor to be performed, observed and/or carried out by the Contractor as contained or referred to in or to be inferred from the Contract as such Contract may, from time to time, be amended (hereinafter referred to as the Obligations). This Guarantee is a continuing security and shall secure the Obligations notwithstanding the liquidation, administration, judicial management, receivership and/or other incapacity or any change in the constitution of the Contractor or the Guarantor or in the name or style thereto or any settlement of account or other matter whatsoever.
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The Guarantor hereby irrevocably and unconditionally undertakes to indemnify the Government, its successors and assigns against all losses, damages, costs and expenses suffered or incurred by the Government, its successors and assigns by reason of any act, omission, default or breach on the part of the Contractor in performing and observing the Obligations. If at any time any default is made by the Contractor in the performance of any of the Obligations, the Government shall notify the Guarantor accordingly in writing. The Guarantor shall not be entitled or obliged to make any enquiry either of the Government or of the Contractor or any other party, and shall accept the said notification as final, binding and conclusive evidence of the Contractors default. The Government shall also certify in writing to the Guarantor the sum or sums that may be payable in consequence of any default by the Contractor in the performance of any of the Obligations pursuant to the terms of the Contract, and the Guarantor shall pay any sum or sums so certified. Payment of the sum or sums so certified shall be made immediately without set off or deduction, notwithstanding any objection by the Contractor and without any further proof and/or evidence. For the avoidance of doubt, if the Guarantor fails to pay such sums as may be demanded by the Government in accordance with this Clause, the Government shall be entitled to recover the same summarily as a debt due and immediately payable without set off or deduction. In addition, the Government shall be entitled to recover in full any cost, fees, expenses and/or charges incurred by the Government in connection therewith. The obligations of the Guarantor hereunder shall not be discharged, released or affected by any act, omission, matter or thing which but for this provision might operate to release or otherwise exonerate the Guarantor from its obligations hereunder in whole or in part, or by any arrangement made between the Government and the Contractor with or without the Guarantors consent or knowledge, or by the Contractor, or by any forbearance whether as to amount, time, performance or in any other way. Where any discharge (whether in respect of the obligations of the Contractor or any security therefor or otherwise) is made in whole or in part or any arrangement is made on the faith of any payment, security or other disposition which is avoided or must be repaid on bankruptcy, liquidation or otherwise without limitation, the liability of the Guarantor under this Guarantee shall continue as if there had been no such discharge or arrangement. The Government shall be entitled to concede or compromise any claim that any such payment, security or other disposition is liable to avoidance or repayment. The Government shall not be obliged to exercise any other right and/or remedy it may have, including but not limited to taking legal action and/or commencing any proceedings against the Contractor, before making any demand under this Guarantee. This Guarantee is addition to and shall not merge with or otherwise prejudice or affect any other right, remedy, guarantee, indemnity or security that the Government may have and may be enforced notwithstanding the same or any other pledge, lien or other security interest now or hereafter held by or available to the Government. Until all the Obligations have been discharged in full, the Guarantor shall not, after default by the Contractor and a claim has been made pursuant to this Guarantee, be subrogated to any rights, security or monies held, received or receivable by the Government or be entitled to any right of contribution in respect of any payment made or monies received on account of the Guarantor's liability hereunder.
4.
5.
6.
7.
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8. (i)
This Guarantee shall be in addition to and shall not in any way be prejudiced by any other security now or hereafter held by the Government as security in connection with the obligations of the Contractor under the Main Contract; or any other right against any third party which the Government may have for performance of all or any of the Guaranteed Obligations.
(ii)
9.
Payment of the sum or sums certified under Clause 1 above shall be made immediately, notwithstanding any objection by the Contractor and without any further proof and/or evidence. Any such payment shall be made without set-off or counterclaim and shall be made free and clear of, and without deduction for or an account of, any present or future taxes, duties, charges, fees, deductions or withholdings of any nature whatsoever and by whomsoever imposed. The benefit of this Guarantee and all rights and powers hereunder may be assigned by the Government. The Guarantor may not assign or transfer any of the Guarantor's rights or obligations hereunder without the prior written consent of the Government. The Guarantor hereby warrants, represents and undertakes to the Government and such warranties, representations and undertakings to continue so long as the Guarantee remains subsisting that; (i) The Guarantor has full power to enter into and perform and will perform its obligations under this Guarantee, and all necessary corporate, shareholder and other action to enable it to execute, deliver and perform the same has been taken and it has obtained and will maintain in full force all necessary consents, licences and authorities and no limitation on its powers to borrow or give guarantees will be exceeded as a result of this Guarantee; This Guarantee has been validly created and constitutes a valid and legally binding obligation on the Guarantor enforceable in accordance with its terms; The creation of this Guarantee and the performance and observance here, does not and will not (I) contravene any existing applicable law, statute, rule or regulation or any judgement, decree or permit to which it is subject; (ii) conflict with or result in any breach of any of the terms of or constitute a default under any agreement or other instrument to which it is a party or to which it is subject or by which it or any of its property is bound, (iii) contravene or conflict with any provision of its memorandum and Articles of Association, Articles of Incorporation or other constitutive documents (howsoever called) or (iv) result in creation or imposition of or oblige it to create any charge or encumbrance on any of its assets, rights or revenues; It is not necessary to ensure the legality, validity, enforceability or admissibility in evidence of this Guarantee that this Guarantee or any other document be stamped, registered, filed notarised, recorded or enrolled in Malaysia and this Guarantee is in proper form for its enforcement in Malaysia;
10.
11.
(ii)
(iii)
(iv)
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(v)
No taxes, levies, imposts, duties of whatever nature are imposed by withholding or otherwise on any payment to be made by it under this Guarantee or are imposed on or by virtue of the execution or delivery by it of this Guarantee; The execution of the guarantor of this Guarantee constitutes and the performance and observance by the Guarantor of the obligations expressed to be assumed by it hereunder constitute private and commercial acts done and performed for private and commercial purposes.
(vi)
12.
The construction validity and performance of this Guarantee is subject to Malaysian law and the Malaysian courts shall have exclusive jurisdiction over any dispute or difference arising out of or in connection herewith. The Guarantor shall be deemed to have full knowledge of all terms and conditions of the Main Contract.
13.
IN WITNESS WHEREOF this Guarantee has been executed on the ........................ day of ......... 2000 The Common Seal of the ______________________________ was hereunto affixed in the presence of ) ) ) )
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APPENDIX 5 MEDIATION RULES Mediation 1. Mediation is a voluntary, non-binding, private dispute resolution process in which a neutral person helps the parties to try to reach a negotiated settlement.
Agreement of Parties 2. The parties shall have by this Contract accepted mediation under these Rules by a single mediator as part of their agreement.
Initiation of Mediation 3. If a dispute arises, either party may request the initiation of mediation by delivering a written request for mediation to the other party. Such request for mediation shall contain a brief self-explanatory statement of the nature of the dispute, the quantum in dispute (if any), the relief or remedy sought and nominating a mediator thought suitable.
Response to Request for Mediation 4. The party who receives a request for mediation shall notify the other party within 14 days after receipt of the request whether any mediator nominated is acceptable. In the event that the nominated mediator is unacceptable the parties shall within 14 days of the date of the request for mediation attempt to agree a suitable mediator.
Appointment of the Mediator 5. Where the parties agree on a mediator and the proposed mediator is willing to serve, the mediator shall then proceed in accordance with these Rules. If the parties fail to agree within the time stipulated in Rule 4 they will notify the President for the time being of the Board of Engineers who shall appoint within 14 days of such notification a single mediator who is prepared to serve and is not disqualified under Rule 6.
Disqualification of the Mediator 6. No person shall serve as mediator in any dispute in which that person has any financial or personal interest in the result of the mediation except by consent of the parties. Prior to accepting an appointment, the proposed mediator shall disclose to the parties any circumstances likely to create a presumption of bias or
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prevent a prompt resolution of the dispute between the parties. If any party takes objection to the proposed mediator within 7 days he shall not be appointed.
Conduct of the Mediation 7. The mediator shall enter upon the mediation as soon as possible after his appointment and shall use his best endeavors to conclude the mediation which for the avoidance of doubt will include any report which may be required by Rule 15 within 42 days of his appointment. His appointment shall not extend beyond a period of three months without the consent of both parties. The parties shall at all times give full assistance to the mediator to enable the mediation to proceed and be concluded within the time stipulated. The parties may be represented by whomever they consider appropriate. Their names and addresses shall be made know to the mediator and the other party prior to commencing the mediation. The mediator shall inform himself in any way he thinks fit of the nature and facts of the dispute. The mediator shall conduct the mediation in such a manner as will permit full and expeditious presentation to him by the parties of their views. The mediator may see the parties together or separately for the purpose of informing himself of the nature and facts of the dispute. If the mediator considers it appropriate, or if he requested by the parties, he may express preliminary views orally or in writing on the matters in dispute during the mediation. The mediator may, and shall if requested by the parties, seek legal or other advice from third parties not connected with the dispute. During the course of the mediation the mediator may attempt various compromise solutions with the parties in an informal manner. Should a solution be agreed it will be accepted by both parties in accordance with Rule 17. In the event that the mediator is unable to facilitate a satisfactory resolution, he shall first notify the parties orally of his views. If requested by either party at that time, he shall then provide in writing his opinion, prior to the submission of his report as contemplated by Rule 15. If requested by either party, and notwithstanding that pursuant to Rule 14 the mediator has notified the parties of his views and it is clear to mediator that a settlement during the course of the mediation is unlikely, the mediator shall submit to the parties a report setting out the facts as he finds them, his opinion in relation to the matters in dispute, having regard to those facts as found by him, and proposing terms of settlement which seem to him to be appropriate. Within 28 days of receipt of the report the parties will indicate, each to the other, whether the mediator's proposed terms of settlement are acceptable in whole or in part. If, however, the mediator is unable to produce a report as envisaged by this Rule, he may at his discretion produce a report on his views however incomplete or tentative if he considers that it might assist the parties to resolve their dispute.
8.
9.
10. 11.
12.
13.
14.
15.
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16.
The mediator may abandon the mediation whenever in his judgement further efforts at mediation would not lead to a settlement of the dispute and he shall notify the parties in writing. The mediation is regarded as being a private and confidential matter between the parties to the contract and the procedures of the mediation should be so conducted. In the event that the mediation is successful the terms of the settlement shall be recorded in a supplemental agreement to the contract. Nothing that transpires during the course of the mediation is intended to or shall in any way affects the rights or prejudice the position of the parties to the dispute in any subsequent arbitration or litigation, and without derogating from the generality of the foregoing and merely by way of example: (a) the opinion and terms of settlement recommended by the mediator shall not be disclosed to an Arbitrator or Court; the fact that information of whatsoever nature was made available to the mediator, does not mean that privilege or confidentiality is waived for any subsequent litigation or arbitration; and the fact that the accuracy of information or the validity or meaning of documents was not challenged during the mediation does not preclude challenge in subsequent litigation or arbitration.
17.
18.
(b)
(c)
Costs 19. Parties shall each deposit with the Mediator such sum as is reasonably determined by the mediator, before the mediator enters upon the mediation, as a contribution to the cost and proper expenses of the mediation including the mediator's fees and expenses, and the cost of any legal or other advise taken by the mediator. The mediator may at any time during the course of the mediation require the parties to make a further deposit or deposits to cover anticipated additional fees and expenses. Subject to any order the mediator may make under Rule 20, after deducting the costs and expenses of the mediation, the Mediator shall return any surplus funds in equal shares to the parties, at the conclusion of the mediation.
20.
If the mediator finds that the mediation has been initiated or conducted frivolously or vexatiously then he shall have the power to order the party who initiated or conducted the mediation in a frivolous or vexatious manner to pay the fees of the mediator in full or such share as he considers appropriate and to reimburse the other party in respect of its reasonable costs of preparation and attendance, such costs in default of agreement to be assessed by the mediator. Both parties agree to be bound by an order of the mediator made under this Rule, and liability on one party to reimburse costs to the other pursuant to an order shall be deemed a debt due.
Mediator not subsequently to act as Arbitrator 21. The mediator shall not be appointed as arbitrator in any subsequent arbitration between the parties, whether arising out of the dispute or otherwise arising out of the same contract unless the parties agree in writing. Neither party shall be entitled to call the mediator as witness in any subsequent arbitration or litigation
12-Jun-02
arising out of the same contract. Any communications whether oral or written which either party shall have with the mediator or with other parties in connection with the mediation shall be absolutely privileged. Written Record 22. No formal written record shall be kept of the mediation process other than the opinion or the report provided for respectively in Rules 14 and 15. Any notes or record made by the mediation, and/or the parties, shall remain private and confidential and not subject to disclosure in any subsequent proceedings.
Exclusion of Liability 23. It is agreed that the mediator shall not be liable to any party for any act or omission in connection with any mediation conducted under these Rules, save for the consequences of fraud or dishonesty.
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APPENDIX 6 Warranty/Guarantee Bond
In accordance with the terms and conditions of Contract No for 'The Design, Construction, Completion, Testing, Commissioning and Maintenance of Electrified Double Track Project Between Ipoh, Pulau Pinang and Padang Besar (hereinafter called the Works) we, the undersigned, at the request of the Contractor i.e. ................................................................................... irrevocably undertake and guarantee to the Government against any defect or damage which may arise due to/any defect, fault or Insufficiency in the design, material or otherwise of the said Works/portion of the Works which the Contractor is responsible for the design, in the manner hereinafter appearing. Now the Guarantor hereby agrees with the Government as follows: (1) If any defect or damage shall occur to the Works/portion of the Works or any part thereof as a result of any defect, fault or insufficiency in the design, workmanship, materials or otherwise, on the Government first written demand, We shall pay to the Government the amount specified in such demands notwithstanding any contestation or protest by the Contractor or any other third party and without proof or conditions. Provided always that the total of all demands so made shall not exceed the sum of Ringgit .. (RM .) and the total amount recoverable against us under this guarantee shall not exceed the said sum. The Government reserves the right to make any partial demands if it shall so desire and the total of such partial demands so made shall not exceed the sum as stated in paragraph (1) above and our liability as the Guarantor to pay the Government the aforesaid shall correspondingly be reduced proportionate to any payment of partial demands having been made by us. We shall not be discharged or released from this Guarantee by any arrangement between the Contractor or the Government with or without our consent or by any alteration in the obligations undertaken by the Contractor or by any forbearance, whether as to payment, time, performance or otherwise.
(2)
(3)
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(4)
This Guarantee shall be irrevocable and shall remain in force for a period of five (5) years commencing from the date of issue of Certificate of Making Good Defects and/or Certificate of Completion of Maintenance (whichever shall be the later). Claims if any, must be received by us within the period of Guarantee.
Given under our hand this ................................................day of ................................. 20 ..... Signed for an on behalf of the said Guarantor in the presence of ) ) ) Name: Designation: ....................... Bankers Seals: Witness Name: ..................................... Designation: ........................... Banker's Seals: .......................
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APPENDIX 7
LIST OF APPROVED MULTIMODAL TRANSPORT OPERATORS
(a) (b) (c) (d) (e) (f) (g)
Kontena Nasional Sdn. Bhd. Malaysian Shipping Agencies Sdn. Bhd. MISC Agencies Sdn. Bhd. Shapadu Trans - System Sdn. Bhd. Gapima Sdn. Bhd. Tanjongria Shipping Sdn. Bhd. Pelangi Shipping Sdn. Bhd.
12-Jun-02

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KERAJAAN MALAYSIA KEMENTERIAN PENGANGKUTAN

SPECIAL PROVISIONS TO THE CONDITIONS OF CONTRACT

DOUBLE TRACK PROJECT BETWEEN IPOH - PULAU PINANG - PADANG BESAR

DOUBLE TRACK PROJECT BETWEEN IPOH - PULAU PINANG - PADANG BESAR

27. 28. 29. 30. 31. 32. 33.

DOUBLE TRACK PROJECT BETWEEN IPOH - PULAU PINANG - PADANG BESAR

43. 44. 45. 46. 47. 48. 49. 50. 51.

DOUBLE TRACK PROJECT BETWEEN IPOH - PULAU PINANG - PADANG BESAR

53. 54. 55. 56. 57. 58.

59. 60. 61. 62. 63. 64. 65.

DOUBLE TRACK PROJECT BETWEEN IPOH - PULAU PINANG - PADANG BESAR

DOUBLE TRACK PROJECT BETWEEN IPOH - PULAU PINANG - PADANG BESAR

CONTENTS INDEX TO APPENDICES

DOUBLE TRACK PROJECT BETWEEN IPOH - PULAU PINANG - PADANG BESAR

DEFINITIONS AND INTERPRETATION

DOUBLE TRACK PROJECT BETWEEN IPOH - PULAU PINANG - PADANG BESAR

Construction Superintendent Contract

DOUBLE TRACK PROJECT BETWEEN IPOH - PULAU PINANG - PADANG BESAR

Day Daywork Schedule

Environmental Manager Environmental Management Plan Equipment

Execution of the Works

Final Certificate Final Design

DOUBLE TRACK PROJECT BETWEEN IPOH - PULAU PINANG - PADANG BESAR

Government Governments Risks Interim Certificate KTMB Letter of Acceptance

Maintenance Supervisor Materials

DOUBLE TRACK PROJECT BETWEEN IPOH - PULAU PINANG - PADANG BESAR

Month Multi-Modal Transport Operators Performance Bond Permanent Works

means any person engaged by, or on behalf of, the Government

DOUBLE TRACK PROJECT BETWEEN IPOH - PULAU PINANG - PADANG BESAR

Contractor Retention Sum

Ringgit Malaysia or RM Safety Manager Safety Plan

Security Deposit Security Retention Site

Special Provisions Statutory Requirements Sub-Contractor

Superintending Officer or S.O.

DOUBLE TRACK PROJECT BETWEEN IPOH - PULAU PINANG - PADANG BESAR

Variation Warranty Period Warranty Bond Works

DOUBLE TRACK PROJECT BETWEEN IPOH - PULAU PINANG - PADANG BESAR

DOUBLE TRACK PROJECT BETWEEN IPOH - PULAU PINANG - PADANG BESAR

DOUBLE TRACK PROJECT BETWEEN IPOH - PULAU PINANG - PADANG BESAR

DOUBLE TRACK PROJECT BETWEEN IPOH - PULAU PINANG - PADANG BESAR

DOUBLE TRACK PROJECT BETWEEN IPOH - PULAU PINANG - PADANG BESAR

DOUBLE TRACK PROJECT BETWEEN IPOH - PULAU PINANG - PADANG BESAR

DOUBLE TRACK PROJECT BETWEEN IPOH - PULAU PINANG - PADANG BESAR

CUSTODY AND SUPPLY OF DRAWINGS AND DOCUMENTS

DOUBLE TRACK PROJECT BETWEEN IPOH - PULAU PINANG - PADANG BESAR

CONTRACTORS DESIGN OBLIGATIONS

DOUBLE TRACK PROJECT BETWEEN IPOH - PULAU PINANG - PADANG BESAR

DOUBLE TRACK PROJECT BETWEEN IPOH - PULAU PINANG - PADANG BESAR

DOUBLE TRACK PROJECT BETWEEN IPOH - PULAU PINANG - PADANG BESAR

DOUBLE TRACK PROJECT BETWEEN IPOH - PULAU PINANG - PADANG BESAR

CONTRACTORS GENERAL RESPONSIBILITIES

Contractors Representations and Warranties The Contractor warrants that: -

DOUBLE TRACK PROJECT BETWEEN IPOH - PULAU PINANG - PADANG BESAR

DOUBLE TRACK PROJECT BETWEEN IPOH - PULAU PINANG - PADANG BESAR

DOUBLE TRACK PROJECT BETWEEN IPOH - PULAU PINANG - PADANG BESAR

DOUBLE TRACK PROJECT BETWEEN IPOH - PULAU PINANG - PADANG BESAR

Right to terminate If the Contractor shall fail to: -

DOUBLE TRACK PROJECT BETWEEN IPOH - PULAU PINANG - PADANG BESAR

INSPECTION OF SITE, ETC

DOUBLE TRACK PROJECT BETWEEN IPOH - PULAU PINANG - PADANG BESAR

SUFFICIENCY OF CONTRACT SUM

WORK TO BE IN ACCORDANCE WITH CONTRACT

DOUBLE TRACK PROJECT BETWEEN IPOH - PULAU PINANG - PADANG BESAR