98 local authorities with approx. quants

Standard Form of Building Contract 1998 Edition

incorporating Ame 1 : 1999 2: 2000

ContractsTribunal Limited

. . ... ___ ... , .-

Contents Throughout the Articles ofAgreementand Conditions, references to footnotesare made by smallletrers in square brackets.

1 2 3A 38 4 5 6- 1 6.2 7A 78

:

1 1.1 1.2 1 -3 1.4 1 *5 1 *6

1.7 1.8 1 *9 1.10 1.11 1.12

2 2.1

I 2-2

I 2.3

2.4

3

and

4

4.1

4.2 4.3

mncm OF AGREEMENT

Recitals (First - Seventh)

Articles Contractor's obligations Ascertained Final Sum Architect Contract Administrator Quantity Surveyor Dispute or difference - adjudication Planning Supervisor Principal Contractor Disputeor difference - arbitration Disputeor difference - legal proceedings

Page 5

6

8

Attestation 1 7

CONDITIONS: PART 1: GENERAL

Interpretation, definitions etc. Methodof referencetoclauses Articles etc. to be read as a whole Definitions [Number not used1 Contractor's responsibility Reappointment of Planning Supervisor or Principal Contractor - notification to Contractor Giving or service of notices or other documents Reckonins Deriods of davs Employer" Representative

73

6

6-1 -1 Statutory Requirements

Statutory obligations, notices, fees and charges

to a 5 -6 Divergence - Statutory Requirements and

the Contractor's Statement a7 Change in Statutory Requirements after

Base Date

6A

6A.1

6A.2

6A.3

6A-4

7

8 8.1

4 Construc ' nSkill Certificationscheme /?I c b x e r i a l s o r . w d s - mance Scecified WO& - materials and goods

Applicable law- Electronic data interchange Contracts(RightsofThird Parties) Act 1999 - contracting out

Contractor's obligations Contract Documents a 1 Contract Bills - relation to Articles,

Conditions and Appendix -2 Preparation of Contract Bills - errors in

f ArchitecVContract Administrator -

reatment of royalties etc. - indemnityto

preparation etc. Discrepancies and divergences

Amount to be included in 11 Ascertained Final Sum - lnteri Certificates

5 79

5.1

5-2 5.3

5.4

5.5 5.6 5.7 5.8 tract Administrator's

5.9 certificates Supply of as-builtdrawingsetc. - Performance Specified Work

12

13

14

14.1 14.2 14.3 14.4 14.5 14.6

' 15 15-1 15.2 15-3

16 16.1 16.2

Employer Architect's/Contract Administrator's instructions - treatment of royaltiesetc.

Person-incharge

Access for ArchitectlContract Administrator to the Works

Clerkof works

Contract Bills Quality and quantity of work included inTender Price

Measurement and Valuation of work including Variationsend provisional sums Definition of Variation Instructions requiring a Variation Instructions on provisional sums Measurement and Valuation ofwork Valuation rules Contractor's right to be present at measurement

Value added tax - supplemental provisions Definitions - VATAgreement Ascertained Final Sum - exclusiveof VAT Possible exemption fromVAT

Materialsand goodsunfixedor off-site Unfixed materialsand goods - on site Unfixed materialsandgoods - off-site

20

21

22

22

23

24

24

24

24

24

27

27

LA WA 98 (9/03) @The Joint Contracts Tribunal Limked 2003 1

17 Practical Completion and defects liability 28 22C.2 Works in orextensionsto existing structures - 17.1 Certificate of Practical Completion All Riskslnsurance - Emdovertotakeoutand 17.2 Defects, shrinkagesorother faults maintain Joint Names Polici 17.3 Defects etc. - Architect's/Contract 22C-3 Terrorism cover certificate

17.4 Contractor'sobligations - payment by

17.5 Damage byfrost 22C.5 .1 Terrorism cover - non-availability -2 Employer'soptions

18 Partial possession by Employer 28 18.1 Employer's wish - Contractor'sconsent 22D Insurance for Employer's loss of liquidated 40

-1 Practical Completion - relevant part damages - clause25.4.3 -2 Defectsetc. - relevant part e 3 Insurance - relevant part e 4 Liquidateddamages - relevant part

Administrator's instructions 22C.4 LossordamagetoWorks - insuranceclaims - Certificate of Completion of Making Good Defects Employer

19 Assignment andsubtontracts 19-1 Assignment 19.2

19-3 Sub-letting - list in Contract Bills 23 DateofPo 19.4 Sub-letting - conditionsofany sub-letting 19.5 Nominated Sub-Contractors 23.1 Dateof

20 Injurytopersonsand property and indemnity 30

20.1

20.2

20.3

21 Insuranceagainstinjurytopersonsor property 37 43 21.1

21.2 21.3 Excepted Risks

22 lnsuranceof theworks 22.1 22.2 Definitions 22.3

Sub-letting - Domestic Sub-Contractors - ArchitectWContract Administrator's consent

to Employer Liabilityof Contractor - personal injury or death - indernnitytoEmployer Liabilityof Contractor - injury or damageto property - indemnitytoEmployer Injury or damage to property - exclusion of the Works and Site Materials

Contractor's insurance - personal injury or death - injury ordamagetoproperty Insurance - liabilityetc. of Employer

irect loss and/orexpense

Insurance of the Works - alternativeclauses

Nominated and Domestic Sub-Contractors - benefit of Joint Names Policies - Specified Perils Relevance of certain extensions of Completion

Nominated Sub-Contractors - matters materially affecting regular progress of the sub- contractworks - direct loss and/or expense

27 Determination by Employer 27.1 Noticesunderclause 27 27.2 Default by Contractor 27-3 Insolvency of Contractor 27.4 Corruption 27-5 27-6

27.8 Other right sand remedies

28 Determination by Contractor 28.1 Noticesunderclause28 28.2 Default by Employer - suspension of

uncompleted Works 28.3 lnsolvencyof Employer 28.4 Consequences of determination under clause

28.2 or 28-3 28.5 Other right sand remedies

28A.1 Grounds fordetermination oftheemployment of the Contractor

28A.2 Consequences of determination under clause to 28A.1.1 - clauses 28A.3 to 28A.6

contents - non-availability - Employer's 28A-7 Amountsattributabletoany Nominated Sub- options Contractor

Insolvency of Contractor - option to Employer Consequences of determination under clauses 27.2 to 27.4

surance 36 27.7 Employer decides not to complete the Works

28A Determination by Employer or Contractor 55

22C-lA Terrorismcover - existing structures and 28A.6

48

52

2 @The Joint Contracts Tribunal Limited 2003 LAWA 98 i9m3)

29

29.1 Information in Contract Bills 29.2

30 Certificates and payments 30A Payments subject to clause31 30.1

Works by Employer or persons employed or engaged by Employer

Information not in Contract Bills

e1.1 Interim Certificates and valuations - to a1.5 final datefor payment - interest

30.2

30.3 30.4 30-5 30.6

I 30.7

30.8 30-9 30.10

31 31.1 31.2 31.3

31.4 31.5 31.6

31.7 to .9 31.10 to.11 31-12

31.13 31.14

32

33

34 34-1 34.2

34.3

35

35.1 35.2

a1.6 [Numbernotusedl -2.1 Interim valuations .2.2 Application by Contractor - amount of

gross valuation .3 Issue of Interim Certificates .4 Right of suspension of obligations by

Contractor Ascertainment of amounts due in Interim Certificates Off-site materials or goods Retention - rulesforascertainment Rules on treatment of Retention .1 Ascertained Final Sum - documentsfrom

Contractor - final Valuations under clause 14

a2 Items included in the Ascertained Final Sum Interim Certificate - final adjustment or ascertainment of nominated sub-contract sums Issue of Final Certificate Effect of Final Certificate Effect of certificates other than Final Certificate

Construction Industry Scheme (CIS) Definitions Whether Employer isa 'contractor' Payment by Employer - valid Authorisation essential Validity of Authorisation - Employer's query Authorisation: CIS 4 reaistration card Authorisation: CIS 5 o r b s 6 or a certifvins

56 35.9 Architect'dContract Administrator's duty on receipt of any notice under clause35.8

35.10 [Numbernot usedl 35.1 1 [Number not usedl 35.12 [Number not usedl

Payment of Nominated Sub-Contractor 35.13 e1 ArchitectKontract Administrator -

and -2 direction as to interim paymentfor Nominated Sub-Contractor

.3 Direct paymentof NominetedSub-

e6 Agreement NSCN - pre-nomination

56

to .5 Contractor

paymentsto Employer

70

35.15 Failureto complete n h n a t d b - c o n t r a c t V works \ \

35.16 Practicalco

35.17 Earlyfinal

63

relation to Nominated

. - document Change of Authorisation

Vouchers

Correction of errors in making the statutory deduction Relation to other clauses Disputes or differences

[Number not usedl

[Number not usedl

Antiquities -6 Effect of find of antiquities 36.1 Architect'slContractAdministra r's 36.2 instructions on antiquities foun Direct loss and/or expense

36.4

CONDITIONS: NOMINATED NOMINATEDSUPP SUB-CO PART2 nw RS 36.5

\ \ General 67

37

P cedure nomin nofa b-cont or 68 38

ractor 35.

35.5- rig h t p p a b l e objection 35.6 ct s/Contr Ad mistrator's instruction 39

Determination or determination of employment of Nominated Sub-Contractor - Architect'JContract Administrator's instructions

NOMINATED SUPPLIERS Definition of a Nominated Supplier Arch i tect's/Co nt ract Ad m i n istrato f s instructions Ascertainment of costs to beset against prime cost sum Sale contract provisions - Architect's/Contract Administrator's right to nominate supplier Contract of sale - restriction, limitation or exclusion of liability

CONDITIONS: PART3: FLUCTUATIONS

Choiceof fluctuation provisions - entry in Appendix

[Number not usedl

Note: Clauses 39and 4Oare published separately

on N o m m d o c u m e n t s 39.1 accomp yingthe i ruction - copy of instruct ontractor Contractor's obligations on receipt of Architect's/Contract Administratof s instruction

Contractor's obligation to notify Architect/ and -4 'workpeople' Contract Administrator

35.7

35.8 Non-compliancewithclause35~7 -

LABOUR AND MATERIALS COST AND TAX FLUCTUATIONS -1 Deemed calculation of prices in the

Contract Bills - rates of wages etc. .2 Increases or decreases in rates of wages

etc. - payment or allowance -3 Personsemdovedonsiteotherthan

71

72

72

73

73

73

73

73

75

77

80

LA WA 98 (9lO3) @The Joint Contracts Tribunal Limited 2003 3 I

e5 Workpeople - wage-fixing body - 42.1 1 Variations in respect of Performance Specified and e 6 reimbursement offares etc. Work

39.2 Contributions, leviesand taxes 42.12 Agreement for additional Performance 39.3 Materials, goods, electricity and fuels Specified Work

39-4 Fluctuations - work sublet - Domestic 42.1 4 Integration of Performance Specified Work Sub-Contractors 42.15 Compliance with Architect's/Contract

39.4 e 1 Sub-let work - incorporation of provisions Administrator's instructions - Contractor's

.2 Sub-letwork -fluctuations - paymentto or 42.16 Delay by Contractor in providing the

42.13 Analysis

tolikeeffect notice of injurious affection

allowance by the Contractor Contractor's Statement Performance Specified Work - Contractor's 42.17

39.5 Provisions relating toclause39 obligation to -7 42.18 Nomination excluded 39.5 -1 Written notice by Contractor

-2 Timing and effect ofwritten notices .3 Agreement - Quantity Surveyorand 88

Contractor -4 Fluctuationstaken intoaccount in

calculating the Ascertained Final Sum -5 Evidence and computations by Contractor 89 a 6 NoalterationtoContractor's profit -7 Position where Contractor in default

39.6 Worketc. towhichclauses39.1 to.4not

39.7 Definitionsfor usewith clause39

and -8 over completion 93

applicable

39-8 Percentage addition to fluctuation payments or 97 allowances

40 USE OFPRICE ADJUSTMENTFORMULAE 40.1 Adjustment of Ascertained Final Sum - price

adjustment formulaefor building contracts - Formula Rules eamountoftaxdue -

40.2 [Number not usedl 40.3 Fluctuations - articles manufactured outside

the United Kingdom 40.4 [Number not used] 40.5 Powertoagree - Quantity Surveyorand

Contractor 40.6 Position where Monthly Bulletins are delaye

etc. 40-7 Formula adjustment - failure to complete

SElTLEMENTOF DlSP CONDITIONS: PART4

ply - liquidated damages to be

argeof Employerfrom liabilitytopaytax

Awards in dispute procedures Arbitration provision excluded Employer's rightwhere receipt not provided VATon determination

ANNEX 2 TOTHE CONDITIONS 101 Supplemental Provisions for EDI

ARBITRATION - LEGAL PROCEEDINGS

41A Adjudication 41A.1 Application of clause 41A 41A.2 ldentityof Adjudicator 41A.3 Death ofAdjudicator - 41A.4 Disputeordifference -

referto adjudication - referr 41A-5 Conduct ofthe adjudication

payment

41A.8 Immunity

418 Arbitration nu 83

41C Legelproceedi gs A n )

42.8 Instructions of the ArchitectKontract

42.9 Preparation of Contract Bills 42.1 0

Administrator on other provisional sums

Provisional sum for Performance Specified Work - errors oromissions in Contract Bills

84

85

List of amendments incorporated in this reprint 104

4 @The Joint Contracts Tribunal Limited 2003 LAWA 98 (9/03)

This Form is for use where the Works have been substantially designed but not completely detailed so that the quantities shown in the Bills are approximate and subject to remeasurement.

Articles of Agreement

Footnote

LA WA 98 (9/03)

la1 Where the Contractor is not a limited liability company incorporated underthe Companies Acts, seefootnotelqql toclause 35.13.5.3.4.

@The Joint Contracts Tribunal Limited 2003 5

Whereas

Recitals First the Employer is desirous of Ibl

and hascaused Drawingsand Bills of Ap and describe, and are intended to set out the work to be done;

ed which show

Second the Contractor has supplied t rred to as the 'Contract Bills')

(hereinafter referre

Third thesaid Drawi

s stated in the Appendix;

ication of the Construction (Design and Management) Regulations lations') to the work referred to in the First recital is stated in the

Footnotes Ibl State nature of intended works.

[cl Id1 Not used.

[e] Delete if not provided.

[f] See the notes on the JCTBO Fifth recital in Practice Note 27 'The application of the Construction (Design and Management) Regulations 1994to Contracts on JCTStandard Formsof Contract' forthestatutory obligations which must have beenfulfilled before the Contractor can begin carrying outthe Works.

6 @The Joint Contracts Tribunal Limited 2003 U W A 98 (9/031

iei Sixth the Employer has provided the Contractor with a schedule ('Information Release Schedule') which states what information the Architectlthe Contract Administrator will release and the time of that release;

Seventh if the Employer requiresany bond to be on terms other than those agreed between the JCTand the British Bankers' Association, the Contractor has been given copies of these terms;

LA WA 98 19/03) @The Joint Contracts Tribunal Limited 2003 7

Now it is hereby agreed as follows

Contractor's obligations

Ascertained Final Sum

Architect

Article 1 Forthe consideration hereinafter mentioned the Contractorwill upon and subject to the Contract Documents carry out and complete the Works shown upon, described by or referred to in those Documents.

Article 2 The Employer will payto the Contractor such sum or sum accordance with the provisions of these Conditions at the specified in the Conditions and the total of such sums is he Ascertained Final Sum'.

Article 3A [e1 [hl The term 'the Architect' in the Conditions shall m

rchitect for the purpose of this II nominate within a reasonable time

uch death or cessation for that purpose, not rsuch nomination shall ntedpursuant to the utes or differences. [il

r overrule any certificate or opinion or decision essed bythe Architect forthe time being.

IglArticle3A isapplicable where the person concerned is entitled to the use of the name 'Architect' under and in accordance with the Architects Act 1997. Article 38 is applicable in all other cases. Therefore complete whichever is appropriate and delete the elternative. Wherearticle 3A is completed the expression 'the Contract Administrator'shall bedeemed to have been deleted throughoutthe Conditons. Where article38 is completed the expression 'the Architect' shall be deemed to have been deleted throughoutthe Conditions.

[hl In cases where the Works are to be carried out under the direction of officials of the local authority, insert the names of such officials as are to perform the respective functions of 'the Architecvthe Contract Administrator' and 'the Quantity Surveyor' underthis Contract.

IilStrikeout words in italics in caseswhere 'the Architect'. 'the Contract Administrator' or 'the Quantity Surveyor' is an official of the local authority.

@The Joint Contracts Tribunal Limited 2003 LA WA 98 19/03

Article 38 [e1 [hi The term 'the Contract Administrator' in the Conditions shall mean the said Contract

Administrator

of

reasonable time but in any case no laterthan 21 day

appointed pursuant to the procedures under th disputes or differences. [ii Provided always that

the Contract Administrator for the time be

Article 4 Ihl The term 'the Quantity Surveyor' i Quantity

Surveyor

to bethe Quantity Surveyorforthe purposeofthis

vant to the resolution ofdisputes or differences til.

Dispute or difference

Footnote ljl Not used.

LA WA 98 (9/03) @The Joint Contracts Tribunal Limited 2003 9

Article 6.1 [kl The term ‘the Planning Supervisor’ in the Conditions shall mean the Architecvthe I Planning

Supervisor Contract Administrator

or

of

or, in the event of the death of the Planning Supervisor, such other person as the Employer shall Supervisor pursuant to regulation 6(5) of the CDM

Principal Contractor

Article 6.2 Ikl The term ‘the Principal Contractor’ in the Conditi

Employer shall appoint as the Principal CDM Regulations.

ontractor, or, in the

ation 6(5) ofthe

Article 7A Where the entry in the Appe Dispute or difference -

arbitration applies” has not been deleted

ration in accordance with

Dispute or difference - legal proceedings

ting that”Clause 41 B applies” has been deleted

is Contract or in connection therewith shall arise he progress or after the completion or abandonment

if any dispute or difference as to any matter orthing of

determination of the employment of the Contractor it shall be

Ikl Delete articles 6.1 and 6 2 when only regulations7 and 13 of the CDM Regulations apply;see Appendix under the reference to the Fifth recital.

IIIThe JCT 1998editionoftheConstruction Industry Model Arbitration Rules (CIMAR) contains procedures for beginning an arbitration and the appointment of an arbitrator, the consolidation or joinder of disputes including relateddisputes between different parties engaged under different contracts on the same project, and forthe conduct of

~~

arbitral proceedings. The objective of CIMAR is the fair, impartial, speedy, cost-effective and binding resolution of construction disputes. The JCT 1998 edition of the Construction Industry Model Arbitration Rules (CIMAR) includes additional rules concerning the calling of preliminary meetings and supplemental and advisory procedures which may, with the agreement of the parties, be used with Rule 7 (short hearing), B(documents on1y)orS (full procedure).

10 LAWA 98 (9/03) @The Joint Contracts Tribunal Limited 2003

~~

Attestation Iml

Footnote LmlThis pageshould be completedwith the appropriate attestation clause.


The Conditions

Part 1: General

1

Method of 1.1 reference to c I a u s e s

Articles etc. to be readasewhole

1 -2

Definitions 1 -3

Interpretation, definitions etc.

Unless otherwise specifically st or the Appendix to any clause means that clause of the Conditions.

The Articles of Agreement, the Conditions and the Appendix are the effect or operation of any a Appendix must therefore unless otherwise specifical qualification or modification in any other articleor an item in or entry in the Appendix.

Unlessthecontextotherwise requiresorthe Articleso in the Appendix specifically otherwise provides, thefo Articles of Agreement, the C beloworasascribed in thea

Word orphrase

Adjudication Agreement:

Adjudicator: r z a n t to clause 41A as the

All Risks Insurance: ob\v s claus

Analysis:

Appendix: e Appe ix to t e Conditions as completed by the Parties. n

Arbitrator: / r / the pe&t&pointed under clause416 to be the Arbitrator. A

Architect:

e n EE(,& Ascertain dFina m:

n bqyy: CO pleti ewomple t ion of

on Dxte:

onditions: 'eT

Previous pa is blank

Contract Administrator:

the Articles of Agreement to which the Conditions are annexed, and references to any recital are to the recitals set out beforethe Articles.

see article2.

thedatestated in the Appendix.

the Construction (Design and Management) Regulations 1994or any remaking thereof or any amendment to a regulation therein.

see clause 17.4.

the Date for Completion as fixed and stated in the Appendix or any date fixed underclause25.

the clauses 1 to 37, eitherclause 39 or 40, clauses 41A, 41 B, 41C and 42 and theSupplemental Provisions ('theVAT Agreement') annexed to the Articles of Agreement.

the person named in article38 or any successor duly appointed under article3B or otherwise agreed as the person to be the Contract Administrator.

U WA 98 (9/03) @The Joint Contracts Tribunal Limited 2003 13

Word or phrase Meaning

Contract Bills: the Bills of Approximate Quantities referred to in the First recital which have been priced by the Contractor and signed by oron behalf ofthe PartiestothisContract.

Contract Documents: the Contract Drawings, the Contract Bills, the Articles of Agreement, the Conditions and the Appendix.

Contract Drawings:

Contractor:

Contractor's Statement:

Date for Completion:

Date of Possession:

Defects Liability Period:

Domestic Sub-Contractor:

Employer:

the Drawings referred to in the First recital which have been signed by or on behalf of the Parties to this Contract.

the person named as Contractor i Agreement.

see clause 42.

the datefixed and stated in t h e A h d i x \

the date stated in clause23.1.

the period named i clause 17.2.

see claus nu 9-2.

the+ Agr ment. m r in the Articlesof

Excepted Risks: ntamination by radioactivity from any nuclearwaste from the el, radioactive toxic explosive or es of any explosive nuclear

ar component thereof, pressure waves or other aerial devices travelling at sonic

Final Certificate: /r/ X&x&f$te to which clause 30.8 refers.

Employer before any construction work underthis Contract has started; and any further development of that plan bythe Principal Contractor during the progress of the Works.

the schedule referred to in the Sixth recital or as varied pursuant to clause 5.4.1.

anyone of the certificates to which clauses 30.1 and 30.7 and the entry in the Appendix underthe reference toclause 30.1.3 refer.

the Joint Code of Practice on the Protection from Fire of Construction Sites and Buildings Undergoing Renovation which is published bythe Construction Confederation and the Fire Protection Association with the support of the Association of British Insurers, the Chief and Assistant Chief Fireofficers Association andthe London Fire Brigadewhich is current atthe Base Date, and as may be amendedhevised from timeto time.

14

Joint Names Policy: see clause 22.2.

@The Joint Contracts Tribunal Limited 2003 LA WA 98 19/03)

Word orphrase

Nominated Sub-Contract:

I Nominated Sub-Contractor:

Nominated Supplier:

N um bered Documents:

Parties:

Party:

Performance Specified Work

Period of Interim Certificates:

person:

Planning Supervisor:

Meaning

an Agreement NSCIA (Articles of NominatedSub-Contract Agreement), the Conditions NSCK (Conditions of Nominaredsub-Contrecr~ incorporated therein and the documents annexed thereto.

see clause35.1.

see clause36.1.1.

the Numbered Documents annexed t NSCIA (Articles ofhlominatedsub-

the Employer and the Contract0 and the Contractor in the Articl

the Employer orthe Contractor the Contractor in the

see clause 42.1.

the period named in thhPPent;Hc(n/derhe reference to

an individuf, f i - e w r body corporate.

ortheother person

Practical Completion:

Principal Contractor: tract y othercontractordulyappointed bythe ploy s the rincipal Contractor pursuantto regulation

ork whether or not identified ined or undefined work and a provisional ance Specified Work seeclause42-7.

ood Fridayoradaywhich underthe ncial Dealings Act 1971 isa bank

the person named inarticle4oranysuccessorduly appointed underarticle4or otherwise agreed as the person to be the Quantity Surveyor.

anyoneoftheeventssetout inclause25.4.

see clause 30.2.

seeclause30-4.1-1 and any entry in the Appendix under the reference to clause 30.4-1.1.

all unfixed materials and goods delivered to, placed on or adjacent to the Works and intended for incorporation therein.

Footnotes In1 [Not used].

101 Amend as necessary if different Public Holidays are applicable.


Wordorphrase

Specified Perils:

Standard Methodof Measurement:

Statutory Requirements:

Tender Price:

Valuation:

Variation:

VATAgreement:

Works:

1.4 [Number not used1

Meaning

fire, lightning, explosion, storm, tempest,flood, bursting or overflowing of water tanks, apparatus or pipes, earthquake, aircraft and other aerial devices or articles dropped therefrom, riot and civil commotion, but excluding Excepted Risks.

the Standard Method of Measurement of Building Works, 7th Edition, published by The Royal Institution of Chartered Surveyors and the Construction Confederation current,

at the Base Date.

see clause6.1.1.

see clause 15.1.

de to these works in

Contractor's 1-5 Notwithstandi ct Administratorto the Employer responsibility the Contractor shall remain

rks in all respects in accordance

or issues the ce

Principal ntractor, the Employer Contractor - tractor in writing of the notification to Contractor

Giving or service of notices or other documents

not specifically state the manner of giving or service of any notice

ate, to the body's registered or principal office it shall be treated as having been

r this Contract an act is required to be done within a specified period of days after ified date, the period shall begin immediately afterthat date. Where the period a day which is a Public Holiday that day shall be excluded.

n the Conditions subject to any exceptions stated in the notice. [pi

/ - Footnote IplTo avoidany possibleconfusion overthequite

distinct roles of the Architectlthe Contract Administrator and Quantity Surveyor and the role of the Employer's Representative neither the Architecthhe Contract Administrator northe Quantity Surveyor should be appointed as the Employer's Representative.


Applicable law

Electronic data interchange

Contracts (Rights ofThird Parties)

contracting out Act 1999 -

Contract Documents

Contract Bills - relation to Articles, Conditions and Appendix

Preparation of Contract Bills - errors in preparation etc.

Discrepancies and divergences

1.10

1.11

1.12

2

2.1

2.2

2.2

2.3

2.3

2.3

Whateverthe nationality, residenceordomicileofthe Employer, theContractororanysub- contractor or supplier and wherever the Works are situated the law of England shall be the law applicable to this Contract. I ~ I

Where the Appendix so states, the 'Supplemental Provisions for EDI' annexed to the Conditions shall apply.

Notwithstanding any other provision of this Contract nothing in this Contract confers or purports to confer any rightto enforce any of its terms on any person who is not a patty to it.

Contractor's obligations -

The Contractor shall upon and subject to the Conditions car compliance with the Contract Documents, using materials and standards therein specified, provided that quality of materials or of the standards of work Architecthhe Contract Administrator such qua satisfaction of the Architecthhe Contract Admi

. I Nothing contained in the Contract Bills shall o interpretation ofthatwhich iscontained in theA the Appendix.

-2 .1 the Contract Bills, unless ot rein in respect of any specified item or items, are Method of Measurement;

rdance with the Standard

-2 -2 if in the Con thod of preparation omission of items em which is the subject of rerrororomission shall

error or omission shall be corrected; or defined work does not provide the

the correction shall ch information;any

2 shall be treated as if it were a Variation ecthhe Contract Administrator under clause

or divergence between the description in the wing documents, including a divergence documents of the same description, namely:

d by the Architecthhe Contract Administrator under the Conditions uch instruction requires a Variation in accordance with the

ts issued by the Architecthhe Contract Administrator under

he Contract Administrator a written notice e, and the Architecthhecontract Administrator shall

Footnote Iql WherethePartiesdonotwish thelawapplicableto thiscontract to be the IawofEnglandappropriate amendments toclause VlOshould be made.


-

2.4

2.4

3

4

Compliance with 4.1 Arch itect'd Contract Administrator's instructions

Provi si0 ns empowering instructions

4- 1

4.2

-1 If the Contractor shall find any discrepancy between his Statement in respect of Performance Specified Work and any instruction of the Architecthhe Contract Administrator issued after receipt by the Architectnhe Contract Administrator of the Contractor's Statement, he shall immediately give to the Architectnhe Contract Administrator a written notice specifying the discrepancy or divergence, and the Architectnhe Contract Administrator shall issue instructions in regard thereto.

.2 lfthe Contractoror the Architecthhe Contract Administrator shall find any discrepancy in the Contractor's Statement, the Contractor shall correct the Statement to remove the discrepancy and inform the Architectnhe Contract Administrator in writing of the correction made. Such correction shall be at no costto the Employer.

Amount to be included in calculation of Ascertained Certificates

Where in the Conditions it is provided that an amount is to be incl d in th alculation of the Ascertained Final Sum then as soon as such amoun m w o r . in part such amount shall betaken intoaccount in thecomp ation ofthe xtln Certificate following such whole or partial ascertainment.

Architect's/Contract Administrator's in RW -1 The Contractor shall forthwith CO issued to him bythe

Architectnhe Contract Administr Architectnhe Contract Admini instructions; save tha meaning of clause 14 reasonable objection dministratorto such

r in respect of which the red by the Conditions to issue

a Variation within the eextentthat he makes

compliance.

a 2 If within 7 d om the Architectnhe Contract truction the Contractor does not comply ay other persons to execute any work

iveeffecttosuch instruction;and all costs ment may be deducted by him from any ractor underthis Contract or may be

nstruction issued to him by the Architectithe Contract est the Architectnhe Contract Administrator to

r shall thereafter comply with the said instruction (neither Party ing invoked the procedures underthis Contract relevant tothe

sue of the same shall be deemed for all the purposes of this Contract ed by the provision of the Conditions specified by the Architectnhe

answerto the Contractor's request.

Instructions to be ed bythe Architectnhe Contract Administrator shall be issued in

ontract Administrator purports to issue an instruction otherwise II be of no immediate effect, but shall be confirmed in writing bythe hitectnhe Contract Administrator within 7 days, and if not dissented Architecthhe Contract Administratorto the Contractor within 7

daysfrom receipt of the Contractor's confirmation shall take effect as from the expiration ofthe latter said 7 days. Provided always:

-2 .1 that if the Architectnhe Contract Administrator within 7 days of giving such an instruction otherwise than in writing shall himself confirm the same in writing, then the Contractor shall not be obliged to confirm as aforesaid, and thesaid instruction shall takeeffectasfromthedateofthe Architect'shhe Contract Administrator's confirmation; and

18 @The Joint Contracts Tribunal Limited 2003 LA WA 98 (9/03)

continued

Custody of Contract Billsand Contract Drawings

Copies of documents

Descriptive schedules etc. - master programmeof Contractor

Information Release Schedule

4.3

5

5.1

5.2

5.2

5.2

5.2

5.3

5.3

5.4

-2 -2 that if neitherthecontractor northe Architecthhe Contract Administrator shall confirm such an instruction in the manner and at the time aforesaid but the Contractor shall nevertheless comply with the same, then the Architect/the Contract Administrator may confirm the same in writing at any time priorto the issue of the Final Certificate, and the said instruction shall thereupon bedeemed to have taken effect on the date on which it was issued otherwise than in writing by the Architect/ the Contract Administrator.

Contract Documents - other documents - issue of certificate

The Contract Drawingsandthecontract Billsshall remain in the as to be available at all reasonable times forthe inspection of th

lmmediatelyaftertheexecution ofthis Contract the Arc without charge to the Contractor shall provide him (U provided) with:

-1 one copy certified on behalf of the Employer of th

e 2 twofurthercopiesofthe Contract Drawings- A- -3 two copies of the unpriced Bills of Appr

-1 .1 theArchitecVtheContra eto the Contractor shall ided) with 2 copies of any

ssaryfor use in carrying out the

er shall providethe Architecthhe

e execution of the Works and within 14 days ntract Administrator under clause 25.3.1 with ions to take account of that decision. Irl

sly so provided) with 2

schedules or other like documents referred to in rammefortheexecution ofthe Works orany vision therein referred to in clause 5.3.1-2) shall

e ArchitecVthe Contract Administrator is prevented by the act r or of any person for whom the Contractor is responsible, the

the Employer and Contractor may agree, which agreement shall layed orwithheld, tovary any such time.

s of the information

Information Release Schedule the Architect/the n from time to time may be necessary without charge with 2 copiesofsuchfurtherdrawingsordetails

ably necessarytoexplain and amplifythecontract Drawingsand shall ructions (including those for or in regard to the expenditure of provisional e the Contractor to carry out and complete the Works in accordance with . Such provision shall be made or instructions given at a time when, o the progress of the Works, or, where in the opinion of the Architecthhe

Contract Administrator Practical Completion of the Works is likely to be achieved before the Completion Date, having regard to such Completion Date, it was reasonably necessary for the Contractor to receive such further drawings or details or instructions. Where the Contractor is aware and has reasonable grounds for believing thatthe Architecthhe Contract Administrator is not so aware of the time when it is necessary for the Contractor to receive such further drawings or details or instructions the Contractor

Provision of further drawings ordetails

Footnotes IrlTo bedelated if no masterprogramme is required. Is] Words in parentheses to be deleted if no master programme is required.

LA WA 98 (9103) @The Joint Contracts Tribunal Limited 2003 19

,

Availabilityof certain documents

Return of drawings etc.

Limits touseof documents

Issue of Architect's/ Contract Administratofs certificates

supply ofas-built drawingsetc. - Performance Specified Work

Statutoty Requirements

5.4

5.5

5.6

5.7

5.8

5.9

6

6.1

6.1

.2 continued

shall, if and to the extent that it is reasonably practicable to do so, advise the Architect/ the Contract Administrator of the time sufficiently in advance of when the Contractor needs such further drawings or details or instructions to enable the Architectithe Contract Administrator to fulfil his obligations under clause 5.4.2.

The Contractor shall keep one copy of the Contract Drawings, one copy of the unpriced Bills of Approximate Quantities, one copy of the descriptive schedules or other like documents referred to in clause 5.3.1.1, one copy of the master programme referred to in clause 5.3.1.2 (unlessclause 5-3.1.2 has been deleted) and one copy ofthedrawings and details referred to

or his representative at all reasonable times.

Upon final payment under clause 30.8 the Contractor shall if

schedulesandotherdocumentsof a likenaturewhich beart Contract Administrator.

Contract, and neitherthe Employer,

Except where otherwise specificall the Contract Administrator undert immediately upon the issue of any su shall send a duplicatecopy thereof t

sued bytheArchitect/

houtfurthercharge to the

Statutory oblig G t i c f l X tio charges

-1 tor shall comply with, and give all notices required by, ent, rule or order made under any Act of Parliament, local authority or of any statutory undertaker which

to the Works or with whose systems the same are or will uirements to be so complied with being referred to in the atutory Requirements').

lfind any divergence between the Statutory Requirements and all nts referred to in clause 2.3 or between the Statutow Reauirements

-2 . .

f the Architectithe Contract Administrator requiring a Variation with clause 14.2, he shall immediately give to the Architecthhe

written notice specifying the divergence.

tractor gives notice underclause6.1-2 or if the Architectlthe Contract rator shall otherwise discover or receive notice of a divergence between the

ry Requirementsand all or any ofthe documents referred to in clause2.3 or he Statutory Requirements and any instruction requiring a Variation issued in

h clause 14.2, the Architectithe Contract Administrator shall within 7 overy or receipt of a notice issue instructions in relation to the nd insofar as the instructions require the Worksto bevaried, they shall be

treated as if they were Architect's/Contract Administrator's instructions requiring a Variation issued in accordance with clause 14.2.

cy compliance with clause 6-1-1 requires the Contractor to supply work before receiving instructions under clause 6.1.3 the

Contractor shall supply such limited materials and execute such limited work as are reasonably necessary to secure immediate compliance with the Statutory Requirements.


Divergence - Statutory Requirements and the Contractor's Statement

Change in Statutory Requirements after Base Date

Feesorcharges

Exclusionof provisions on DomesticSub- Contractors and Nominated Sub- contractors

Employer's obligation - Planning Supervisor - Principal Co ntractor

6.1

6.1

6.1

6.1

6.2

6.3

6A

6A.1

-2 The Contractor shall forthwith inform the Architecthhe Contract Administrator of the emergencyand ofthestepsthat heistaking underclause6.1.4.1.

-3 Workexecutedand materialssupplied bythe Contractor underclause6.1.4.1 shall be treated as if they had been executed and supplied pursuant to an Architect'da Contract Administrator's instruction requiring a Variation issued in accordance with clause 14.2 provided that the emergency arose because of a divergence between the Statutory Requirements and all or any of the documents referred to in clause 2-3 or between the Statutory Requirements and any instruction requiring a Variation issued in accordance with clause 14.2, and the Contractor has complied with clause 6.1 -4-2.

I

Provided that the Contractor complies with clause 6.1.2, the CO liable to the Employer under this Contract ifthe Works do not Requirements where and to the extent that such non-comp from the Contractor having carried out work in accordance to in clause 2.3 orwith any instruction requiring a Variation I Contract Administrator in accordance with clause 14.2.

lfthe Contractor orthe Architecthhe Contract Adm between the Statutory Requirements and any C immediately give the other a written notices shall inform the Architectlthe Contract A amendmentfor removing the divergenc Administrator shall issue instructions in regard thereto. instructions shall be subject to clause 42 provided in clause 6-1-7.

If afterthe Base Date there is a cha some alteration or modification t modification shall be treated Administrator under clause 1

ments which necessitates Worksuch alteration or

e Architecthhe Contract

The Contractor shall p or charges (includin any instrument, rul of any local authori any such fees orchar included in thecalcu

The provisions of c local authority or a

against liability in respect of anyfees ndable under any Act of Parliament, arliament, or any regulation or byelaw respect of the Works.The amount of

axes other than value added tax) shall be

I not apply to the execution of part of the Works by a executing such work solely in pursuance of its

statutory Contract.

all not be subcontractorswithin the termsofthis

the Appendix states that ail the CDM Regulations apply

- u p e r v i s o r carries out all the duties of a planning supervisor under the ( m R e g k t i 0 n . s ; and

r is not the Principal Contractor, that the Principal Contractor carries a principal contractor undertheCDM Regulations.

and while he remains the Principal Contractor, the Contractor shall duties of a principal contractor set out in the CDM Regulations; and in ure thatthe Health and Safety Plan has the features required by regulation gulations. Any amendment by the Contractor to the Health and Safety

to the Employer, who shall where relevant thereupon notifythe and the Architecthhe Contract Administrator.

rom the time the Employer pursuantto article 6.2 appoints a successorto the Contractor as the Principal Contractor. The Contractor shall comply at no costtothe Employerwith all the reasonable requirements of the Principal Contractorto the extent that such requirements are necessary for compliance with the CDM Regulations; and, notwithstanding clause 25, no extension oftime shall be given in respect of such compliance.

Principal Contractor

LAWA 98 (9/03) @The Joint Contracts Tribunal Limited 2003 21

Powers of ArchitecffContract Administrator - worknot in accordance with this Contract

Powers of ArchitecffContract Administrator - non-compliance with clause 8.1.3

Exclusion from the Works of persons employed thereon

Treatment of royalties etc. - indemnity to Employer

8.4

8.4

8-4

8.4

8.4

8.5

8.6

9

9.1

If any work, materials or goods are not in accordance with thiscontractthe Architect/the Contract Administrator, without prejudice to the generality of his powers, may:

notwithstanding the power of the Architect/theContract Administrator under clause 8.4.2, issue instructions in regard to the removal from the site of all or any of such work, materials or goods; and/or

after consultation with the Contractor (who shall immediatelyconsult with any relevant Nominated Sub-Contractor) and with the agreement of the Employer, allow all or any of such work, materials or goods to remain and confirm this in writing to the Contractor (which shall not beconstrued as a Variation) and wheresoallowed and confirmed an

and/or

after consultation with the Contractor (who shall immediate1 Nominated Sub-Contractor) issue such instructions re reasonably necessary as a conseque such confirmation underclause8-4-2 necessary and notwithstanding claus

having had due regard to the Code of Practice app clause42). issue such instructions underclause8- tionortotestas

in a proper and

instruction.

in the Contract Bills of any patented articles, processes or

orto which he may be put by held to have infringed any patent rightsin

in compliance with Architect's/Contract Administrator's instructions

to any such articles, processes or

rights shall be included in the calculation of the

LA WA 98 WO31 @The Joint Contracts Tribunal Limited 2003 23

1

10 Person-in-charge

The Contractor shall constantly keep upon the site a competent person-in-charge and any instructions given to him bythe Architectithe Contract Administrator or directions given to him by the clerk of works in accordance with clause 12 shall be deemed to have been issued to the Contractor.

1 11 Access for ArchitectlContract Administrator t o the Works

Qualify and quantity of work included in Tender Price

The ArchitecUhe Contract Administrator and his representatives s times have access to the Works and to the workshops or othe work is being prepared forthis Contract, and when work is to other places of a Domestic Sub-contractor or a Nominated S shall byaterm inthesubcontractsofaraspossiblesecurea workshops or placesforthe ArchitecVthe Contract andshalldoall thingsreasonablynecessaryto ma accordance with clause 11 may be subjectto such re or any Domestic Sub-Contractor or any Nominated protect any proprietary right of the Contractor or of Contractor in the work referred to in clause 11.

e r

12 Clerk of works

The Employer shall be entitled to ap inspector on behalf of the E Administrator, and theCon of that duty. If any direction of noeffect unlessgiven in reg Administrator is e confirmed in writi such direction bei date of issue of that con Administrator's in

e duty shall be to act solely as chitect/the Contract acilityfor the performance of works the same shall be the Architect/the Contract

to issue instructions and unless strator within 2 working days of n and confirmed then as from the

13 Contract Bills

/

tion of work including Variations and provisional sums

Definition of Conditions means: Variation

ification of the design or quality of the Works including

substitution of any work,

he kind or standard of any of the materials or goods to be used in

of any workexecuted or materials or goods brought rforthe purposes of the Works otherthan work, materials

e not in accordancewith this Contract;

er of any obligations or restrictions in regard to the matters 4.1.2-4 orthe addition to or alteration or omission of any

such obligations or restrictions so imposed by the Employer in the Contract Bills in

e 2 .1

.2 -2 limitationsofworking space;

access to the site or use of any specific parts of the site;

24 @The Joint Contracts Tribunal Limited 2003 LA WA 98 (9/031

Instructions requiringa Variation

I Instructions on provisional sums

Measurement and Valuation ofwork

Valuation rules

14-1 continued

a2 .3 limitationsofworking hours;

.2 a 4 the execution or completion of the work in any specificorder;

but excludes

14.1 -3 nomination of a sub-contractortosupply and fix materialsorgoodsortoexecutework of which the measured quantities have been set out and priced bythe Contractor in the Contract Bills for supply and fixing or execution by the Contractor.

14.2 The Architemhe Contract Administrator may, subject to reasonable objection set out in clause 4-1-1, issue instruct may sanction in writing any Variation made by the Contra instruction of the Architecthhe Contract Administrator. No Architecthhe Contract Administrator or subsequently sanction Contract.

n

14.3 The Architectrrhe Contract Administrator shall issue ins -11 ctions in r ard t

14.3 -1 theexpenditure of provisional sums included in t

14.3 -2 the expenditure of provisional sums included in

14-4 .I -1 Subiecttoclause 14.4.1.2allworkcar n - h iedouti cco clause 2.1 and in pursuance of the Architect's/the C clauses 14.2 and 14-3-1 shall be (in the Conditions called the 'V Employer and the Contr

instructions under rveyor and such valuation wise agreed by the

provisions of clauses Specified Work, with

d the Nominated Sub-Contractor be made in accordancewith the

ct/the Contract Administrator in regard to the expenditure of

aluation relates to the execution of workwhich can properly be nt such work shall be measured and shall be valued in accordance

e work is of similar characterto and is executed under similar conditions as out in the Contract Bills and where the quantity of the work was reasonably

is of similar characterto workset out in the Contract Bills but is not similar conditions thereto and/or where the quantity of the work

was not reasonably accurately forecasttherein, the rates and prices forthe work so setout shall bethe basisfordetermining thevaluation andthevaluation shall include a fair allowance for such difference in conditions and/or quantity;

Footnotes

LA WA 98 i9D3)

It1 Not used.

@The Joint Contracts Tribunal Limited 2003

~ ~ ~~~

lul If the Architect/the Contract Administrator nominates a subcontractor or supplier by any instruction under clause 14-3.l.thenthe provisionsofPart2ofthe Conditionsapply to such nomination.

25

14.5 continued

-1 -3 where the work is not of similar character to work set out in the Contract Bills the work shall bevalued at fair rates and prices.

14.5 .2 [Number not used1

14.5 e3 Inanyvaluationofworkunderclause 14-5-1:

.3 .I measurement shall be in accordance with the same principlesas thosegoverning the preparation ofthe Contract Bills as referred to in clause 2.2-2.1;

a3 -2 allowance shall be made for any percentage or lumpsu Contract Bills; and

-3 a3 any amounts priced in the Preliminaries section oft

14.3.1 (except an instruction for the expenditu work) shall be included.

14.5 .4 To the extent that the Valuation relates to the e bevalued by measurementtheValuation shall

efinitionof Prime

Construction CO

.4 .2 whereth ployers in that trade have agreed

e prime cost at the rates set out by the

als employed shall be delivered for ministrator or his authorised representative

owing that in which the work has been executed.

14-5 -5 If

ith any instruction requiring a Variation work shown on

K27?2 anc wi any - instruction asto the expenditure of a provisional sum for

iture of a provisional sum for thatworkdiffersfrom the

uch workgiven in thecontract Bills

s the conditions underwhich any other work is executed, then such

rmance Specified Work shall include allowance forthe work tion and production of drawings, schedules or other documents.

Footnote IvlThere are three Definitions to which clause 1454.2 refers namely those agreed between the Royal Institution and the Electrical Contractors Association, the Royal Institution and the Electrical Contracton AssociationofScotland andthe Royal lnstitutionand the Heating and Ventilating Contractors Association.

26 @The Joint Contracts Tribunal Limited 2003 M W A 98 (9/031

Contractor's right to be present at measurement

Definitions -VAT Agreement

Ascertained Final. Sum -exclusive of VAT

Possible exemption from VAT

Unfixed materials and goods - on site

Unfixed materials and goods - offsite

14.5

14.6

15

15.1

15.2

15.3

16

16.1

16.2

-7 To theextentthatthevaluation does not relatetotheexecutionofworkortotheextent that thevaluation of anyworkor liabilities directly associated with a Variation cannot reasonably be effected in the Valuation by the application of clauses 14.5.1 to -6 a fair valuation thereof shall be made.

Provided that no allowanceshall be made under clause 14.5foranyeffect upon the regular progress of the Works or for any other direct loss and/or expense for which the Contractor would be reimbursed by payment under any other provision in the Conditions.

Where it is necessary to measure work for the purpose of the Valuation the Quantity Surveyor shall give to the Contractor an opportunity of being present atthe time of such measurement and of taking such notes and measurements as the Contr mrequire. Value added tax - supplemental provisions

In clause 15and in the supplemental provisions pursua Agreement') 'tax' means thevalue added tax introduce underthecare and managem and in the VATAgreement ca

Any reference in the Conditionsto 'Ascertained Final S exclusive of any tax and reco chargeable bythe Commissi Tax Act 1994oranyamendment or re-e underthisContractshaII be underthe p Clause IAoftheVATAgreement shallon

To the extent that after the Bas becomes exempt from the tax lossofcredit (inputtax contribute exclusively

ces to the Employer an amount equal to the

Materials and goods v-w unfixe r off-s

Unfixed materials a on or adjacentto the Works and intended

of any such materialsor goods has in ed in any Interim Certificate underwhich the amount paid by the Employer, such materials and goods

ect to clause 228 or22C (if applicable),

d items'has in accordance with clause30.3 been included in any

erty of the Employer and thereafter the rlyduetotheContractor has been paid by

sponsiblefor.any loss thereof or damagetheretoand forthecost of nd insurance ofthesame until such timeasthey aredelivered toand tto the Works whereupon the provisions of clause 16.1 (exceptthe alue" to the words "the property of the Employer, but,") shall apply

Iwl Not used.

1x1 Clause 1Acanonly applywhere the Contractor is satisfied at the date this Contract isentered into that hisoutputtaxon all supplies totheEmployerunderthisContractwil1 beat eithera positiveora zerorateoftax.


17 Practical Completion and defects liability

Certificate of Practical Completion

17.1 When in the opinion of the Architectlthe Contract Administrator Practical Completion of the Works is achieved and the Contractor hascomplied sufficientlywith clause 6A.4, and, if relevant, the Contractor has complied with clause 5-9 (Supplyofes-builtdrawings etc. - Performance Specified Work), he shall forthwith issue a certificate to that effect and Practical Completion ofthe Worksshall bedeemedforall thepurposesofthisContractto havetaken place on the day named in such certificate.

Defects. 17-2 Anydefects,shrinkages orotherfaultswhich shall appearwithinthe Defects Liability Period, shrinkages or

y the Architect/ other faults and which are due to materials or workmanship not in accordance with this Contract orto frost occurring before Practical Completion of the Works, shall the Contract Administrator in a schedule of defects which an instruction of the Architecthhe Contract Administrator

Defects etc. - Architect's/ Contract Administratot's instructions

Certificate of Completion of Making Good Defects

expiration of thesaid Defects Liability Period, and within a

Administrator does sootherwise instruct then an a such defects, shrinkages or other faults not made g Final Sum.

Notwithstanding clause 17-2 the Arch considers it necessaryso to do issue i fault which shall appearwithin the De

17-3

17-4 When in theopin dministrator any defects, shrinkages or

this Contract to have taken place on the day mpletion of Making Good Defects').

17.5 In nocaseshall uiredtomakegoodathisowncostanydamagebyfrost unless the Architecthhe Contract due to injury which tookplace before

Damage by frost

Employer'swish- Contractor's consent

efore the date of issue by the Architecthhe Contract Administrator of I Completion the Employer wishes to take possession of any part or e consent of the Contractor (which consent shall not be

held) has been obtained, then, notwithstanding anything lied elsewhere in this Contract, the Employer maytake possession thereof. Contract Administrator shall thereupon issue to the Contractor on behalf written statement identifying the part or parts of the Works taken into

giving the date when the Employer took possession (in clauses 18,20-3, -1 referred to as the 'relevant part' and the 'relevant date' respectively).

rposes of clauses 17.2,17-3,17.5 and 30-4-1.2 Practical Completion of the art shall be deemed to have occurred and the Defects Liability Period in

rt shall be deemed to have commenced on the relevant date.

-2 When in the opinion of the Architecthhe Contract Administrator any defects, shrinkages or other faults in the relevant partwhich he may have required to be madegood under clause 17.2 or clause 17.3 have been madegood he shall issue a certificatetothat effect.

28 @The Joint Contracts Tribunal Limited 2003 U W A 98 19/03)

Insurance - 18.1 .3 Asfrom the relevant date theobligation ofthecontractor underclause22Aorofthe relevant part Employer under clause 228.1 or clause 22C-2 whichever is applicable to insure shall

terminate in respectofthe relevant part but notfurtherorothetwise;and whereclause 22C applies the obligation of the Employer to insure underclause 22C.1 shall from the relevant date include the relevant part.

Liquidated 18.1 -4 In lieu ofany sum to be paid bytheContractororwithheld ordeducted bytheEmployer damages - under clause 24 in respect of any period during which the Works may remain incomplete

occurring afterthe relevant date thereshall be paid such sum as bears thesame ratio to relevant part

thesum whichwould bepaidapartfrom theprovisionsofclause 18astheTenderPrice less the amountcontained therein in respect ofthe relevant part bears to theTender Price;orthe Employer maygivea noticepursuanttoclause30.1-1. such sum from moniesduetotheContractor. Reduct

Assignment

19 Assignment and sub-contracts

19.1 -1 NeithertheEmployer northeContractorshalI, with assign this Contract.

the Employerof his freehold o leasehold interest in, the who1

derogationfrom the rightassi ateof any assignment.

Subletting - 19.2 .1 A person to who f the Works otherthan a DomesticSub Contractors - Architect's/ Contract Administrator's consent 19.2 -2 The Contractors ent of the Architecthhe Contract

remain wholly responsible for carrying accordance with clause 2.1

Subletting - list in Contract Bills

n clause 19.3.1 must comprise not less than three persons. Either e Architecvthe Contract Administrator on his behalf) or the entitled with theconsent of theother, which consent shall not be

xecution of a binding sub-contract agreement.

time priorto the execution of a binding sub-contract agreement and for r reason less than three persons named in the list are able and willing to tthe relevantworkthen

rthe Employer and the Contractor shall by agreement (which agreement not be unreasonably delayed orwithheld) add IyI the names of other

ons so that the list comprises not less than three such persons

orthe workshall becarried out bytheContractorwho may sub-lettoa Domestic Sub-Contractor in accordance with clause 19.2.

Domestic Su b-Contractor.

Footnote [y] Any such addition must be initialled by or on behalf oftheParties.

U WA 98 19m3) @The Joint Contracts Tribunal Limited 2003

Subletting - 19.4 ltshall beacondition inany sub-letting towhichclause 19.2or 19~3refersthat: conditions of any subletting 19.4 .I the employment of the Domestic Sub-Contractor underthe sub-contract shall determine

immediately upon the determination (for any reason) of the Contractor's employment under this Contract; and

19.4 -2 the sub-contract shall provide that:

-2 -1 subjecttoclause 16.1 of these Conditions (in clauses 19-4.2.2 to.4 called the 'Main Contract Conditions'), unfixed materials and goods delivered to, placed on or adjacentto the Works by the sub-contractor and intended therefor shall not be removed exceptfor use on the Works unless the Contra writing to such removal, which consent shall not be unr withheld;

.2 a 2 where, in accordance with clause 30.2 of the Main any such materials or goods shall have been inch

propertyoftheEmployerand th or goods are and have become t

goods before the value therefor -2 -3 provided that if the Contractors uch materialsor

ayment by the Contractor be

-2 -4 the operation of clauses 1

19-4 -3 thesub-contra

contractor in addition to the amount not iod until such payment is made; that the

rent atthe date the payment by the Contractor of simple interest shall not in any circumstances

tract or of any rights of thesub-contractor underthe ofthe performance of his obligations to the determination of his employmentforthefailure by

Nominated Sub- Contractors

Contract relating to Nominated Sub-Contractors are set out in Part

als or goods or to execute work.

Sub-Contractor.

Injury to persons and property and indemnity to Employer

The Contractor shall be liable for, and shall indemnifythe Employer against, any expense, liability, loss, claim or proceedings whatsoever arising under any statute or at common law in respect of personal injury to orthe death of any person whomsoever arising out of or in the course of or caused by the carrying out of the Works, except to the extent that the same is due to any act or neglect of the Employer or of any person for whom the Employer is responsible including the persons employed or otherwise engaged by the Employer to whom clause 29 refers.

toEmployer


Liability of Contractor - injury or damage to property - indemnity to Employer

Injury or damage to propecty - exclusion of the Works and Site Materials

Contractor's insurance - personal injury or death - injuryor damage to property

20-2 The Contractor shall be liable for, and shall indemnify the Employer against, any expense, liability, loss, claim or proceedings in respect of any loss, injury or damage whatsoeverto any property real or personal in so far as such loss, injury or damage arises out of or in the course of or by reason ofthe carrying out of the Works and to the extent that the same is due to any negligence, breach of statutory duty, omission or default of the Contractor, his servants or agents or of any person employed or engaged upon or in connection with the Works or any part thereof, his servants or agentsorof any other person who may properly be on thesiteuponorinconnection with the Worksorany partthereof, hisservantsoragents, otherthan the Employer or any person employed, engaged or authorised by him or by any local authority or statutory undertaker executing work solely in pursuance of itsstatutory rights or obligations.This liability and indemnity is subject to clause 20.3 and, where clause 22C-1 is applicable, excludes loss or damage to any property require thereunder caused by a Specified Peril.

-1 Subjectto clause 20.3.2, the reference in clause 20-2 to "pr not include the Works, work executed and/or Site Material of issue of the certificate of Practical Completion or up to an determination of the employment of the Contra determination is disputed) under clause 27 or28 under clause 27 or 28 or 28A or 22C.4.3, whichev

-2 If clause 18 has been operated then, in respect of relevant date, such relevant part shall not be reg executed" forthe purpose of clause 20.3.1.

20-3

20.3

21 Insurance against injury to persons or o erty

urytoorthedeathofanyperson the Contractor, and arising out of

r in like manner to the Contractor but only to the ay be liable to indemnifythe Employer underthe

sum stated in the Appendix [sal for anyone occurrence

uiredtodoso bythe Employer, theContractorshall Administrator for inspection by the Employer

have sent to the Architectkhe Contract Administrator for erthe relevant policy or policies and the premium receipts

in taking out or in maintaining insurance as provided in clause himself insure against any liabilityor expense which he may

Footnotes [zlltshould benotedthatthecovergranted under public IaalTheContractormay, if hesowishes,insurefora liability policiestakenoutpursuanttoclause21.1.1 may sumgreaterthanthatstatedintheAppendix. not be ceextensive with the indemnity given to the Employer inclauses20.1 and 20.2: for example each claim may besubjecttotheexcessin the policyand cover may not be available in respect of loss or damage due to gradual pollution.


Insurance - 21.2 -1 Whereitisstated intheAppendixthatthe insurancetowhichclause21~2~1 refersmaybe liabilityetc.of Employer

required by the Employer, the Contractor shall, if so instructed by the Architecvthe Contract Administrator, takeout a policy of insurance in the names of the Employer and the Contractor Ibbl for such amount of indemnity as is stated in the Appendix in respect of any expense, liability, loss, claim or proceedings which theEmployer may incur or sustain by reason of injury or damage to any property caused by collapse, subsidence, heave, vibration, weakening or removal of support or lowering of ground water arising out of or in the course of or byreason of thecarrying out of the Works, excepting injury or damage:

for which the Contractor is liable under clause 20.2;

attributable to errors or omissions in thedesigning

which can reasonably beforeseen to be inevitable work to be executed or the manner of its execution;

which it is the responsibilitvofthe Employerto ins . . applicable); n\l to the Works and Site Materials brought of its execution except in so far as any

arising from any consequence

certificate of Practical Completion;

(whether war be declared or military or usurped power;

purpose

directly or indirectly arising from the Excepted Risks;

its entirety at a specific moment in time , provided that all pollution or

ch incident takes place; all be considered forthe purpose

d by the Employer or in any ect of damagesfor breach of

tthat such costs or expenses or damages would have

rred to in clause 21.2.1 shall be placed with insurers to be loyer, and the Contractor shall send to the Architecthhe Contract

posit with the Employer the policy or policies and the premium

nded by the Contractor to take out and maintain the insurance se 21.2.1 shall be added to the Contract Sum.

tractor defaults in taking out or in maintaining the Joint Names Policy as in clause 21.2-1 the Employer may himself insure against any risk in respect of

e default shall have occurred.

ng the provisions of clauses 20-1,20-2 and 21.1-1, the Contractor shall not be indemnify the Employer orto insure against any personal injury to or the erson or any damage, lossor injury caused to the Worksor Site Materials, work site, or any property, by the effect of an Excepted Risk.

Footnote Ibbl Apolicyof insurancetakenoutforthe purposesof clause21~2should nothaveanexpirydateearlierthen the end of the Defects Liability Period.


22 Insurance of the Works [eel

Insurance of the Works - Appendix.

22.1 Clause 22Aorclause 228 or clause22C shall apply whichever clause is stated to apply in the

alternative clauses

Definitions 22.2 In clauses 22A, 228,22C and, so far as relevant, in other clauses of the Conditions the following phrases shall havethe meanings given below:

All Risks Insurance: lddl insurance which provides cover against any physical loss or damage to work executed and Site Materials and against the

any shoring and propping of the Wo such physical loss or damage necessary to repair, replace o

1 property which is defective

-1 wearand tear,

revolution, insurrection, power, confiscation,

lic, municipal or local authority;

disappearance or shortage if such disappearance or shortage is only revealed when an inventory is made or is not traceable to an identifiable event;

-3 an Excepted Risk (as defined in clause 1-31.

a policy of insurance which includes the Employerand the Contractor asthe insured and underwhich the insurers have no right of recourse against any person named asan insured or, pursuantto clause 22.3, recognised as an insured thereunder.

IddlThe definition of'All Risks Insurance'inclause22.2 defines the risks for which insurance is required. Policies issued by insurers are not standardised and there will be somevariationinthewaytheinsuranceforthoserisksis expressed. See also Practice Note 22and Guide, Part A.

beyond thetermsof paragraph2;thusanexclus~onin terms "This Policy excludes all loss of or damage to the propem insured due to defective design, plan, specification, materials or workmanship'' would not be inaccordancewiththetermsof thoseclausesandofthe definition of 'All Risks Insurance'. Coverwhich goes beyond thetermsoftheexclusion in paragraph 2may be availablethoughnot standard inall policiestakenoutto meettheobligationinclause22A.22Bor22C~2:and leading insurerswho underwrite'All Risks'coverforthe Works have confirmed that where such improved cover is being given it will not be withdrawn asaconsequence of the publication of the termsof the definition in clause 22.2 of 'All Risks Insurance'.


' 'I

Nominated and DomesticSub- Contractors - benefit of Joint Names Policies- Specified Perils

New buildings - Contractorto take out and maintaina Joint Names Policyfor All Risks Insurance

22.2 continued

terrorism: any act of any person acting on behalf of or in connection with any organisation with activities directed towardsthe overthrowing or influencing of any government dejureor de factoby force orviolence.

terrorism cover: insurance provided under a Joint Names Policy to which clauses 22A, 228 and 22C refer for physical loss or damage to work executed and Site Materials and to an existing structure and/or its contents due to fire or explosion caused by terrorism. n

22.3 -1 The Contractor where clause 22Aapplies, and the E 22C applies, shall ensure thatthe Joint Names Policy or the Joint Names Policies referred to in clause 228.

Contract Administrator as an insured U

in respect of loss or damage by the S

-1-3 refers) togetherwith the responsible; and thatthis e date of issue of the

ornestic Sub-Contractors shall continue up cate or other document which states that

gs - All Risks Insurance of the Works by the Contractor [CCI

ut and maintain a Joint Names Policy for All Risks lnsurancefor ned in clause 22.2 lddl [ffl forthe full reinstatementvalue ofthe

ge, if any, to cover professional fees stated in the Appendix) and 8-1-31 maintain such Joint Names Policy upto and including the date of Practical Completion or up to and including the date of ploymentofthe Contractor underclause27 or280r28A(whetheror

etermination is contested), whichever is the earlier.

'sstatusfor VATpurposes is exempt or partiallyexemptthefull o which this clause refers shall be inclusive of any VATon the supply of Is referred to in clause 22A-4.3for which the Contractor is chargeable by

Footnote Iffl Insornecasesitrnaynotbepossibleforinsurance to coveredshould rep1acethisdefinition;inthelanercese clause 22A.1.22A.3 or 228.1, whichever isapplicable, and other relevant clauses in which the definition'All Risks Insurance' is used should be amended to include thewordsused to replace thisdefinition.

betakenoutagainstcertainofthe riskscovered bythe Cfefinitionof'AIl Risks Insurance'. This mattershould be arranged between the Parties prior to entering into this Contract and eitherthedefinition of'All Risks Insurance' given inclause22.2 amendedorthe risks actually


Single policy - insurers approved byEmployer - failure by Contractor to insure

Useofannual policy maintained bycontractor - alternative to use of clause 22A.2

Lossor damage to works - insurance claims - Contractor's obligations - use of insurance monies

n

~ ~~

22A.2 The Joint Names Policy referred to in clause 22A-1 shall be taken outwith insurersapproved by the Employer, and the Contractor shall send to the Architecthhe Contract Administrator for deposit with the Employerthat Policy and the premium receipttherefor and also any relevant endorsement or endorsements thereof as may be required to comply with the obligation to maintain that Policy set out in clause 22A.1 and the premium receiptstherefor. If the Contractor defaults in taking out or in maintaining the Joint Names Policy as required by clauses22A.l and 22A.2 the Employer may himself take out and maintain a Joint Names Policy against any risk in respect of which the default shall have occurred and a sum or sums equivalent to the amount paid or payable by him in respect of premiums therefor may be deducted by him from any moniesdue or to become due to the Contractor underthis Contract or such amount may be recoverable by the Employerfrom the Contractor as a debt.

22A.3 -1

22A-3 *2

22A.4 *1

22A.4 *2

22A-4 -3

22A-4 4

If the Contractor independently of his obligations under thisCo of insurance which provides intereliaAll Risks lnsurancefo defined in clause 22-2forthefuII reinstatement valueoft

under clause 22A.2 to deposit the poli on any occasion the Employer may (b havesenttothe ArchitecVthe Contrac

renewal date, assupplied by the Cont 22A-3.1 isstated in the Appendix.

eferred to in clause

rtthereof orany Site Materials is he Joint Names Policy referred

ering the said loss or damage, the o the Architecvthe Contract Contractor shall f

Administrator an reand location thereof.

of this Contract.

insurers in respect of aclaim underthe Joint Names

amaged, remove and dispose of any debris and ompletion of the Works.

elf and for all Nominated and Domestic Sub-Contractors who 2.3, recognised as an insured underthe Joint Names Policy .1 or22A.2or22A.3,shallauthorisetheinsurersto pavall

urance in respect of the loss or damage referred to in clause The Employer shall pay all such monies (less only the amount Employer in respect of professional fees but not exceeding the

monies so paid excluding any amount included therein

r shall not be entitled to any payment in respect of the restoration, repair of such loss or damage and (when required) the removal and ris other than the monies received undertheaforesaid insurance.

named in the Joint Names Policy notify the Contractor orthe Employer (the 'Insurers' Notification') that, with effectfrom a date stated by the insurers (the 'Effective Date'), terrorism coverwill cease and will no longer be available, the Contractor shall immediately so inform the Employer orthe Employer shall immediately so inform the Contractor.


Em ployer's options

Premium rate changes - terrorism cover

New buildings - Employerto take outand maintaina Joint Names Policy for All Risks Insurance

22A.5 -2 The Employer, after receipt of the Insurers' Notification but before the Effective Date, shall give notice tothecontractor in writing:

either

.2 .1 that on and from the Effective Date clause 22A-5.3 shall apply in respect of physical loss or damage to work executed and/or Site Materials due to fire or explosion caused by terrorism;

or

-2 .2 that on a date stated by the Employer in his notice (whi of the Insurers' Notification and on or before the Effect the Contractor under this Contract shall be and is deter

relevant, clause 28A-7 shall thereupon apply.

the Contractor pursuantto thi Contractor or of any sub-cont have, contributed to the phys

eged bythe Employerto IS clause refers.

22A.5 -4 -1 lfthe rorism cover required underthe use 22A.3-1 refers is varied at any adjusted by the net amount of the

Policy to which clause 22A.1 or clause ffective Date the provisions in clause 22A.5-3 Materials suffer physical loss or damage by

- All Risks Insurance of the Works by the Employer 11x1

for All Risks lnsurancefor

to cover professional fees stated in the Appendix) and such Joint Names Policy up to and including the date

status for VAT purposes is exempt or partially exempt the full thisclause refers shall be inclusiveofany VATon thesupply of

materials referred to in clause 22B.3.3for which the Contractor is chargeable by :%@$? mi loners.

As and when reasonably required by the Contractor to do so the Employer shall produce to the Contractor a copy of the cover certificate, issued by the insurers named in the Joint Names Policy to which clause22B-1 refers, which certifies that terrorism cover is being provided under that Policy.

36 @The Joint Contracts Tribunal Limited 2003 LAWA 98 f9/03)

Lossordamagato 22B.3 -1 If any lossordamageaffecting workexecuted oranypartthereoforanySite Materialsis Works - insurance claims - Contractofs obligations - payment by Employer

occasioned by any one or more of the riskscovered by the Joint Names Policy referred to in clause 228.1 then, upon discovering the said loss or damage, the Contractor shall forthwith give notice in writing both to theArchitect/the Contract Administrator and to the Employer of the extent, nature and location thereof.

22B.3 e2 The occurrence of such loss or damage shall be disregarded in computing any amounts payable to the Contractor under or by virtue of this Contract.

228.3 -3 After any inspection required bythe insurers in respect of aclaim underthe Joint Names Policy referred to in clause 228.1 has been completed the Contractor with due diligence shall restore such work damaged, replace or repair any such Sit

228.3 -4 The Contractor, for himself and for all Nominated and Dom

insurance in respect of the loss or damage referred

228.3 -5 The restoration, replacement or repair of such 10s removal and disposal of debris shall be treated as instruction ofthe Architecthhe Contract Administ

Terrorismcover - non-availability

ailable, the Employer

inform the Employer.

Employer’s 228.4 -2 The Employer, after receipt options shall give notice to the Cont

-2 .1 that on and 8.4.3 shall apply in respect of physical aterials due to fire or explosion caused

by terrorism;

or

-2 -2 thatonad loyer in his notice (which date shall be after the date on or before the Effective Date) the employment of

ined; and that upon such determination the uireanyfurtherpaymentorany releaseorany

ontractor shall not apply and the provisions of 4and 28A.5 (except clause 28A-5.5) and, where relevant, clause

applies then if work executed andlor Site Materials suffer e due to fire or explosion caused by terrorism the Contractor shall

such workdamaged, replace or repair any such Site Materials maged, remove and dispose of any debris and proceed with

rks; and the restoration, replacement or repair of such loss or (when required) the removal and disposal of debris shall betreatedas if ariation required by an instruction of the Architecthhe Contract r under clause 14.2.The Employer shall not reduce any amount payable to r pursuant to this clause228.4-3 by reason of any act or neglect of the of any sub-contractorwhich may have, or is alleged by the Employerto ted to the physical loss ordamage to which thisclause refers.

LA WA 98 (9/031

22C Insurance of existing structures - insurance of Works in or extensions to existing structures tee1

Existing structures and contents - Specified Perils - Employerto take outand maintain Joint Names Policy

Terrorismcovar - existing structures andcontents - non-availability - Employer's options

22C.1 The Employer shall take out and maintain a Joint Names Policy in respect of the existing structures (which shall include from the relevant date any relevant part to which clause 18.1-3 refers) togetherwith the contentsthereof owned by him or for which he is responsible, for the full cost of reinstatement, repair or replacement of loss or damage due to one or more of the Specified Perils iggl up to and including the date of issue of the certificate of Practical Completion or up to and including the date of determination of the employment of the Contractor under clause 22C.4.3 or 27 or 28or 28A (whether or notthe validity of that determination is contested), whichever is the earlier. The Contractor, for himself and for all

underthe Joint Names Policy r all monies from such insurance in respect of loss or damage t

Wherethe Employer's status for VATpurposes is exempt or

22C-1 A.1 lfthe insurers named in theclause22C.l Policy

longer be available, the Employers Contractor shall immediately so inf

the Contractor in

either

As1 -1 that on and from the occurs to the terrorism;

apply if loss or damage explosion caused by

A or UA\\

A.1 .2 that on ad notice (which date shall be after the date ethe Effective Date) the employment of

22C-1 A.2 Wherecla mployer shall continueto require the Works to be isting structures and/orthe contents thereof

oyer is responsible suffer loss or damage due to fire provided thatthis clause 22C.lA.2 shall not be

mage caused by terrorism.

rshall take out and maintain a Joint Names Policy for All Risks lnsurancefor

8-1-31 maintain such Joint Names Policy upto and including the date of Practical Completion or up to and including the date of ployment of the Contractor under clause 22C.4.3 or 27 or 28 or 28A

lggl In some cases it may not be possible for insurance to betaken out against certain oftha Specified Perilsor the riskscovered bythedefinitionof 'All Risks Insurance'.This matter should be arranged between the

relevant clauses in which thedafinitions'All Risks Insurance'andor'Specified Perils'areusedshould be amended to include the words used to replace those definitions.

38

Parties priortoentering into thiscontract andeitherthe definitionsofSpecifiedPerilsand/orAll Riskslnsurance IhhlSomeEmployene.g.tenantsmay not beableto given in clauses 1.3and 22.2amended or the risks fulfil thaobligationsinclause22C~l. Ifsoclause22C.l actuallycovered should replace the definitions: in the should be amended accordingly. latter case clause 22C.1 andlor clause 22C.2 and other

@The Joint Contracts Tribunal Limited 2003 LA WA 98 (9/03)

22C-2 continued

Where the Employer's statusforVATpurposes is exempt or partiallyexemptthefull reinstatementvaluetowhich thisclause refers shall be inclusiveof any VATon thesupply of the work and materials referred to in clause 226-4.4.1 for which the Contractor is chargeable by the Commissioners.

Terrorism cover certificate

22C-3 As and when reasonably required by the Contractor to do so the Employer shall produce to the Contractor a copy of the cover certificates, issued by the insurers named in the Joint Names Policies to which clauses22C.l and 226.2 refer, which certify that terrorism cover is being provided undereach Policy.

Loss or damage Works - insurance claims - Contractor's obligations - payment by Employer

to 22C.4 If any loss or damage affecting work executed or any partthereof or occasioned by any one or more of the risks covered by the Joint Na clause 22C.2 then, upon discovering the said loss or da

the extent, nature and location thereof and give notice in writing both to the Architecthhe Contract f

22C.4 -1 the occurrence of such loss or damage shall be dis payabletotheContractorunderor by virtueofthis

22C.4 -2 the Contractor, for himself and for all Nominated a are, pursuantto clause 22.3, recognised as an insu referred to in clause 22C-2, shall authorise the insu insurance in respect of the loss or damage r d to clause 22C. to the Employer; m u

ntractor under this

not thereafter) either Pa

provisions of clauses28A.4 and 28A.5

22C.4 -4 If no notice of erclause22C.4.3.1, orwherethe relevant -4.3.1 have been invoked and the notice of

-4 -1 afteran the insurers in respect of a claim underthe Joint 2 has been completed the Contractor with amaged, replace or repair any such Site

acernent or repair of such loss or damageand (when required)

( Terrorismcover - non-availability

named in the Joint Names Policy notify the Employer orthe Contractor Notification') that, with effect from a date stated bythe insurers (the

inform the Contractororthe Contractor shall immediatelyso ate'), terrorism cover will cease and will no longer be available, the Employer

of the Insurers' Notification but beforethe Effective Date,

either

.2 e1 that on and from the Effective Dateclause22C.5.3shall apply in respect of physical loss or damage to work executed and Site Materials due to fire or explosion caused by terrorism;

LA WA 98 (9/03)

or

@The Joint Contracts Tribunal Limited 2003 39

i 22C-5 continued

Footnote

.2 -2 that on a date stated bythe Employer in his notice (which date shall be after the date of the Insurers' Notification and on or before the Effective Date) the employment of the Contractor shall be and is determined; and that upon such determination the provisions of this Contract which require any further payment or any release or any further release of Retention to the Contractor shall not apply and the provisions of clauses 28AS3,28A.4 and 28A.5 (except clause 28A-5.5) shall thereupon apply.

22C.5 -3 Where clause 22C.5.2-1 applies then ifwork executed and/or Site Materials suffer physical loss or damage due to fire or explosion caused by terrorism the Contractor shall

they were a Variation required by an instruction Administrator under clause 14.2.The Employer

22D Insurance for Employer's loss of liquidated da

required bythe Employerth Architecthhe Contract Admi actorthat nosuch insurance is requiredor inst

on and which will provide clause 22D.3 in the event of porary buildings, plant and

otthe Employerwishes thecontractorto

the Contractor i

he premium receipt therefor and also any relevant

atthe rate stated in the oftime stated in the

2 --this 3 Pavme insurance shall be calculated at the rate referred to in clause 22D.2 bytheapplication ofclause 18.1-4)forthe periodof any

stated in the Appendix, whichever is the less.

to take out and maintain the insurance referred to in taking out or in

the Employer may himself insure

U IiilTheadoptionofanagreedvalueistoavoidany thatthesumreferredtoinclause22D.2isnotmorethan dispute overtheamount ofthe payment due underthe insurance once the policy is issued. lnsurerson receiving a proposal for the insurance to which clause 22D refers will normally reserve the right to be satisfied

agenuine pre-estimateof thedamagaswhich the Employer considers, at the time he enters into this Contract. hewillsufferasaresultofanydelay.


22FC Joint Fire Code - compliance

22FC -1 Application of Clause22FC applies where it is stated in the Appendix that the Joint Fire Codeapplies. clause

Compliance with 22FC *2 -1 Joint FireCode

-2 -2

Breach ofJoint 22FC -3 -1 FireCode- Remedial Measures

22FC .3 -1

The Employer shall comply with the Joint Fire Code and ensure such compliance by his servants or agents and by any person employed, engaged or authorised by him upon or in connection with the Works or any part thereof other than the Contractor and the persons for whom the Contractor is responsible pursuant to clause

I

22FC.2.2.

The Contractor shall comply with the Joint Fire Code and ensure such compliance

connection with the Works or any partthereof their servant other person who may properly be on the site upon o

which such Remedial Measures are to Completion Date'), the Party receiving

-1 subject to clause 22FC.3- sures relate to the the Works the Contractor ut by the Remedial

obligation ofthecontrac shall ensure that the Re

ire a Variation to the Works as umbered Oocumentsor in an

ns as are necessary to enable iance with the Remedial Measures in

uch limitedworkas are reasonably pliance. The Contractor shall forthwith ministrator of the emergency and of the

clause. Such work executed and materials supplied as if they had been executedand supplied dministrator's instruction requiring a

in 7 days of receipt of a notice specifying Remedial Measures t's/a Contract Administrator's instruction under n to carry out orthereafterfails without reasonablecause

to proceed with the Remedial Measures, then the Employer other persons to carry out those Remedial Measures; and all ection with such employment may be withheld and/or any monies due orto become due to the Contractor or may

ontractor by the Employer as a debt.

the Joint Fire Code isamendedhevised and the Joint FireCode as underthe Joint Names Policy, applicable to the Works, thecost, if the Contractor with any amendment(s)/revision(s) to the Joint

in the Appendix, be borne either by the Employer and added to the Contract Sum or by the Contractor.

U

LA WA 98 (9/03) @The Joint Contracts Tribunal Limited 2003

~~

41

23

23.1

Date of Possession, completion and postponement

-1 On the Date of Possession possession of the site shall be given to the Contractor who shall thereupon begin the Works and regularly and diligently proceed with the same and shall complete the same on or before the Completion Date.

Date of Possession - progress to Completion Date

Architect's/ Contract Administrator's instructions - postponement

Possession by Contractor - use or occupation by Employer

23.1 02 Whereclause 23-1.2 is stated in the Appendix to apply the Employer may deferthe giving of possession for a period not exceeding six weeks or such lesser period stated in the Appendix calculated from the Date of Possession.

23-2 The ArchitecVThe Contract Administrator may issue instructions in regard to the postponement of any work to be executed underthe provisions of

23.3 .1 For the purposes of the Works insurances the Contract0 site and the Works up to and including the date Completion, and, subject to clause 18, the Emp possession ofany partor partsofthe Works un

23.3 -2 Notwithstanding the provisio ith the consent in ereof whether for writing of the Contractor, use

the purposes of storage of his certificate of Practical Completion theContractorshall give h Employer shall notifythe i whichever may be applica not prejudice the insurance. shall not be unreasonablydela

lauses 22C.2 and -4

e consent of the Contractor

23' -3 -3 Whereclause22A.l or22 in giving the confirmation referred to in clause 23.3.2 have firmation that an additional

Employeroftheamount ofthe quire use or occupation under be added to the Tender Price and the

,with the additional premium

Certificateof Architect/Contract Administrator

Payment or allowance of liquidated damages

Works bythe Completion Datethen the Architectlthe certificate to that effect. In the event of a new Completion ch a certificate such fixing shall cancel thatcertificate

tract Administrator shall issue such further certificate under clause

he Contract Administrator has issued a certificate under clause 24.1;

ployer has informed the Contractor in writing before the date of the Final ate that he may require payment of, or may withhold or deduct, liquidated

n 5 days before the final date for payment of the

-1 .I require in writing the Contractor to pay to the Employer liquidated and ascertained damages at the rate stated in the Appendix (or at such lesser rate as may be specified in writing bythe Emp1oyer)forthe period between the Completion Date and the date of Practical Completion and the Employer may recoverthe same as a debt;

or


I

Interpretation of delay

Notice by Contractor of delay to progress

Fixinn Completion

Date- n

24.2 continued

-1 .2 givea notice pursuanttoclause30~1~1~4or30~8~3 to thecontractorthat hewill deduct from monies due to the Contractor liquidated and ascertained damages at the rate stated in the Appendix (orat such lesser rate as may be specified in the notice) forthe period between the Completion Date and the date of Practical Completion.

24.2 .2 If, under clause 25-3.3, the Architecthhe Contract Administrator fixes a later Completion Date, the Employershall pay or repay to the Contractor any amounts recovered, allowed or paid under clause 24-24 forthe period up to such later Completion Date.

24.2 -3 Notwithstanding theissueofanyfurthercertificateofthe Archi Administrator under clause 24-1, any requiremen previously stated in writing in accordance with clause 24.2. unless withdrawn bythe Employer.

25 Extension of time [jji

25.1 In clause 25 any reference to delay, notice or extensio notice orfurther extension of time.

the cause or causes of the delay opinion is a Relevant Event.

ce has been given under ontractor, the Contractor Nominated Sub-Contractor

25.2 .2 In respect of eac fied in the noticegiven in accordance with clause 25.2 able in such notice, or otherwise in

-2 a2 estimate expected delay in the completion of the Works

W and n all aive suc Darticulars and estimate to anv Nominated Sub-Contractorto whom

tice has been given under'clause 25.2.1-2.

h furtherwritten notices to the Architecthhe Contract py to any Nominated Sub-Contractorto whom a copy of

chitecthhe Contract Administrator may reasonably require for een given under clause 25-2.1.2, as may be reasonably

to-date the particulars and estimate referred to in clauses 25.2.2-1 and uding any material change in such particulars or estimate.

nion of the Architecthhe Contract Administrator, upon receipt of any notice, and estimate underclauses 25.2-1-1,25.2.2 and 25-2.3,

events which are stated by the Contractorto be the cause of the delay is a

letion ofthe Works is likely to be delayed thereby beyond the Completion

thearchitecthhe Contract Administrator shall in writing to the Contractor give an extension of time by fixing such later date as the Completion Date as he then estimates

Footnote Ijjl See clauses38.4.7.39.5.7 and 40.7 (restriction of fluctuations or price adjustment during periodwhere Contractor is in default over completion).


25.3 -1

.1

*1

25.3 *2

25.3 -3

-3

-3

continued

to be fair and reasonable.TheArchitect/TheContractAdministratorshaII, in fixing such new Completion Date, state:

-3 which of the Relevant Events he has taken into accountand

-4 the extent, if any, to which he has had regard to any instructions issued under clause 14-2 which require asa Variation the omission of any work or obligation andor under clause 14.3 in regard to the expenditure of a provisional sum for defined work or for PerformanceSpecified Work which results in theomission of any such work,

and shall, if reasonably practicable having regard to the su notice, particulars and estimate, fix such new Completion from receipt of the notice and of reasonably sufficien where the period between receipt thereof and the CO not laterthan theCompletion Date.

If, in the opinion ofthe Architect/the Contrac notice, particulars and estimate, it is not fair

estimate so notify the Contract0 notice, particulars and estimate Completion Date is less than 12

Afterthe first exercise by the clause 25.3-1 the Architect/the Date earlierthan that previous earlier Completion Date is fair

- underclausel4 result in the omission of any such work.

han that previouslyfixed if in his opinion the fixing of is fair and reasonable having regard to any of the pon reviewing a previous decision or otherwise and

Dateearlier than that previouslvfixed under clause 25 if in his of such earlier Completion Date is fair and reasonable having

issued afterthe last occasion on which the Architecthhe ntract Administrator fixed a new Completion Date

underclause 14-2which requireorsanction asaVariationtheornissionofany workor obligation; and/or

under clause 14.3 in regard to the expenditure of a provisional sum for defined rformance Specified Work which result in the omission of any

-3 -3 confirm tothe Contractorthe Completion Date previously fixed.

-4 -1 the Contractor shall useconstantly his best endeavours to prevent delay in the progress of the Works, howsoevercaused, and to preventthe completion of the Works being delayed or further delayed beyond the Completion Date;

@The Joint Contracts Tribunal Limited 2003 U W A 98 (9/03)

25-3 continued

-4 e2 the Contractor shall do all that may reasonably be required to the satisfaction of the Architecthhe Contract Administratorto proceed with the Works.

25.3 -5 The Architecnhe Contract Administrator shall notify in writing to every Nominated Sub-Contractor each decision of the Architecthhe Contract Administrator under clause 25.3fixing a Completion Date.

25.3 .6 No decision of the Architecthhe Contract Administrator under clause 25-3 shall fix a Completion Date earlier than the Date for Completion stated in the Appendix.

Relevant Events 25.4

25.4 .1 force majeure;

25.4 -2 exceptionally adverse weather conditions;

The following are the Relevant Events referred to in clause 25:

25.4 -3 loss or damage occasioned by anyone or more

25.4 -4 civil commotion, local trades employed upon the Works or manufacture or transportation of

25.4 .5 compliance with the ArchitectWthe C o n t r m w o n s U

.5 -1 under clauses 2.3,2.4-1,14.2,14-3 ( ce ompli e with an ArchitectWa Contract Administrator’s instruction for the p nditu of a pr ‘sional sum for defined work or of a provisional sum for 2 or -or ance Sp kl, 23-2,34,35 or36; or

a 5 .2 in regard to the opening covered up orthe testing of clause8.3 (including making

the inspection or test with this Contract;

25.4 -6 -1 where an failure of the Architect/

-6 -2 failureoft ministratorto comply with clause 5.4-2;

25.4 -7 delayonthep -Contractors or Nominated Suppliers which the

25.4 .8 .1 theexec ng part ofthis Contract bythe Employer himself or

steps to avoid or reduce;

ise engaged bythe Employer as referred to in

which the Employer has agreed

25.4 a 9 heex cise afterth ase Date bythe United Kingdom Government of any statutory fi- fuel or ner y as are essential to the proper carrying out of the Works;

lyaffects theexecution ofthe Works byrestrictingthe availabilityor e of la ur which is essential to the proper carrying out of the Works or preventing the

ctor rom, or delaying the Contractor in, securing such goods or materials or such Con

inabilityfor reasons beyond his control and which he could not to secure such labour as is essential to

reasons beyond hiscontrol and which hecould not the Base Date to secure such goods or materials as are

essential to the proper carrying out of the Works;

the carrying out by a local authority or statutory undertaker of work in pursuance of its statutory obligations in relation tothe Works orthe failure to carry out such work;

45 LA WA 98 (9/03) @The Joint Contracts Tribunal Limited 2003

25.4 -12 failureoftheEmployertogivein duetimeingresstooregressfromthesiteofthe Works orany partthereofthrough oroverany land, buildings,wayorpassageadjoining or connected with the site and in the possession and control of the Employer, in accordance with the Contract Bills and/or the Contract Drawings, after receipt by the Architecthhecontract Administrator of such notice, if any, as the Contractor is required to give, or failure of the Employer to give such ingress or egress as othetwise agreed between the Architectlthe Contract Administrator and the Contractor;

25.4 -13 by reason of the execution of work whose quantitywas not reasonablyaccurately forecast in the Contract Bills;

25.4 -14 where clause 23.1-2 is stated in the Appendix to apply, the def giving possession of the site underclause23-1.2;

-1 5 delay which the Contractor has taken all practicable upon a change in the Statutory Requirements after t some alteration or modification to any Performance

25.4

25.4

25.4

25-4

25.4

26

Matters materially 26-1 affecting regular progress of the Works -direct lossandtor expense

-16 the use orthreat ofterrorism and/ortheactivityof t-nt a&ritie\s\pl dealing with such useorthreat;

-17 compliance or non-compliance bythe Employ

-18 delayarisingfrom a suspension bythe ce of his obligations

-19 save as providedfor in clause

If the Contractor ma Architecahe Contract Administrator

er provision in this Contract due to deferment -1-2 whereclause 23.1.2 isstated in the

ted by anyone or more of the matters referred to in rchitecthhe Contract Administrator is of the opinion

tlthecontract Administrator from time totime thereaftershall e Quantity Surveyorto ascertain, the amount of such lossand/or

cation shall be made as soon as it has become, or should me, apparentto him thatthe regular progressofthe Worksorof

s been orwas likely to be affected as aforesaid; and

the Contract Administrator tocomply with clause 5-4.1;

.2 failure of the Architecthhe Contract Administratorto comply with clause 5.402; -1


26.2 .2 the opening up for inspection of anyworkcovered uporthetesting ofany ofthework, materials or goods in accordance with clause 8.3 (including making good in consequence of such opening upor testing), unlessthe inspection ortest showed that the work, materials or goods were not in accordance with this Contract;

26-2

26.2

-3 any such discrepancy or divergence as is referred to in clause 2.3;

.4 -1 the execution of work not forming part of this Contract by the Employer himself or by persons employed orothewise engaged bythe Employer as referredto in clause 29 orthefailuretoexecutesuch work;

-4 -2 the supply by the Employer of materialsand goods which th to provide forthe Worksorthe failuresotosupply;

26.2 -5 Architect's/Contract Administrator's instructions under c l the postponement of any work to be executed underthe p

26.2 -6 failure of the Employerto gi or any partthereofthrough connected with the site and in the possession accordance with the Contract Bills and/orthe Architecthhe Contra to give, or failure oft between the Archite

26-2 a 7 Architect's/Contract

underclause 14-2 requiring a

underclause 14.3 in regard t instructions to which claus provisional sum for defin Work);

Contract Bills; 26.2 .8 theexecution of accuratelyforecast in the

26.2 .9 complianceor n loyerwith clause6A.1;

ance of his obligations underthiscontract -1 -4 provided the suspension was not frivolous or

wascaused orcontributed to by any default, tractor or his servants, agents or sub-contractors.

scertainment under clause 26.1 of loss and/or istratorshall state in writing to the Contractorwhat

Relevanceof certain extensions of Completion Date

Nominated Sub n properly made by a Nominated SC/C shall pass to the Architecthhe

ministrator a copy of that written application. If and as soon as the Architect/ ministrator is of the opinion that the loss and/orexpense to which the 1 refers has been incurred or is likely to be incurred due to any giving of possession whereclause 23-1.2 is stated in the Appendixto

tworksorof any partthereof has o in clause 4-38.1 of Conditions

NSC/C and as set out in the application of the Nominated Sub-Contractor then the Architecthhe Contract Administrator shall himself ascertain, or shall instruct the Quantity Surveyorto ascertain, the amount of loss and/or expense to which the said clause 4-38.1 refers.

LA WA 98 (9B3) @The Joint Contracts Tribunal Limited 2003 47

Amounts ascertained - included in Ascertained Final Sum

Resewation rightsand rernediesof Contractor

I of

Notices under clause 27

Default by Con tractor

48

26.4 -2 If andtotheextentthat it is necessaryfortheascertainmentof such lossand/orexpense the Architecthhe Contract Administrator shall state in writing to the Contractor with a copy to the Nominated Sub-Contractor concerned what was the length of the revision of the period or periodsforcompletion of the sub-contract works or of any part thereof to which he gave consent in respect of the Relevant Event or Events set out in clauses 2.6.5.1 (so far as that clause refers to clauses 2.3,14.2,14.3 and 23.2 of the Main Contract Conditions), 2.6.5-2,2-6.6,2-6.8,2.6.12 and 2.6.1 5 of Conditions NSC/C.

26.5 Any amount from time to time ascertained underclause26shall be included in the calculation of the Ascertained Final Sum.

26.6 The provisionsof clause26are without prejudiceto any Contractor may possess.

27 Determination by Employer

special delivery or recorded delivery contrary, bedeemed to have been re Saturday and Sunday and Public Hol

27.2 .I If, before the date of Practical Compl or moreofthefollowing respects-

-1 -1 without reasonablecause uspends the carrying out of the Works; or

.1 -2 hefailsto

ing him to remove any work, materials ct and by such refusal or neglectthe

-1 .4 hefails

.I .5 hefails

nistrator may give to the Contractora notice specifying ified default or defaults’).

Employer may on, orwithin lodaysfrom, theexpiry ofthat the Contractor determine the employment of the

<*U th r ontractor ends the specified default or defaults, or

does not give the further notice referred to in clause 27.2.2

repeats a specified default (whether previously repeated or not) then, time after such repetition, the Employer may by notice to

the Contractor determine the employment of the Contractor underthis Contract. Such determination shall take effect on the date of receipt of such notice.

.4 A notice of determination under clause 27.2-2 or 27.2-3 shall not be given unreasonably orvexatiously.

@The Joint Contracts Tribunal Limited 2003 LAWA 98 i9/03)

Insolvency of 27.3 -1 Ifthecontractor Contractor

makes a composition or arrangement with his creditors, or becomes bankrupt, or

being a company,

makes a proposal for avoluntary arrangement for a composition of debts or scheme of arrangement to be approved in accordance with the Companies Act 1985 or the Insolvency Act 1986asthecase may beor any amendmentor re-enactmentthereof, or

passesa resolution for voluntary winding-up amalgamation or reconstruction), or

underthe Insolvency Act 1986orany

has a provisional liquidator appointed, or

has a winding-up order made, or

administrator or an administrative

then: v/q I 27.3 -2 the Contractor shall immediately info

es Act 1985 or the re-enactment thereof;

27.3 .3 where a provisional liquidator or order is made or the Contract0

may at any time, unless an agreement notice to the Contractor determine the t and such determination shall take

Corruption 27.4 The Employer shal ine the employment of the Contractor, under this or any other contract, person anygiftorc

haveofferedorgiven oragreed togivetoany ind as an inducement or reward for doing or

ntractwith the Employerthe Contractororany person his behalf shall havecommitted an offence underthe

e Local Government Act 1972 or any amendment or re-enactment thereof.

27.5.4are onlyapplicable whereclause 27.3.4 applies. lnsolvencyof Contractor -

when, under clause 27.3-4, the Employer could first give notice to employment of the Contractor, the Employer, subject to clause 27-5.3, und by any provisions of this Contract to make any further payment

Footnote lkklSee JCTPractice Note24:aftarcertain insolvency events an Insolvency Practitioner actsforthe Contractor.

LA WA 98 19/03] @The Joint Contracts Tribunal Limited 2003 49

27.5 -2 Clause27.5-1 shall apply until

either

.2 -1 the Employer makes an agreement (a '27.5-2.1 agreement') with the Contractor on the continuation or novation or conditional novation of this Contract, in which case this Contract shall be subject to the terms set out in the 27.5.2.1 agreement,

or

.2 -2 the Employer determines the employment of the Contractor under this Contract in accordancewith clause 27.3.4, in which case the provisio shall apply.

27.5 -3 Notwithstanding clause27.5.1, in the period beforeeith or the Employer under clause 27-3.4 determines the em Employer and the Contractor may make an interim arra

such interim arrangement.

reasonable measures to ensure th

delay the taking of the a cost of taking such mea underthis Contract (inc

omeduetotheContractor

e 27.5-3, refers) or may recover

Consequences of 27.6 In the event of the the Contractor under clause 27.2-2, determination underclauses 27.2 1021.4

ons to carry out and complete the Works

ontractor the consent of the owner thereof to such use

the date of determination, assign to the Employerwithout efit of any agreement forthe supply of materials or goods and/or

effect as a creditors'voluntary liquidation, the Employer may pay any supplier or sub-contractorfor any materials or goods delivered or works executedfor the purposes ofthisContract before orafterthedateof determination in sofarasthe price thereof has not already been paid by the Contractor. Payments made under this clause 27.6-2-2 may be deducted from any sum due or to become due to the Contractor or may be recoverable from the Contractor by the Employer as a debt;

50 @The Joint Contracts Tribune1 Limited 2003 LA WA 98 (9/03)

27.6 -3

27-6 -5

27.6 -6

Employer decides 27.7 -1 not tocomplete the Works

the Contractor shall, when required in writing bythe Architecthhe Contract Administrator so to do (but not before), remove from the Works any temporary buildings, plant, tools, equipment, goods and materials belonging to him, and the Contractor shall have removed by their owner any temporary buildings, plant, tools, equipment, goods and materials not owned by him. If within a reasonable time after such requirement has been made the Contractor has not complied therewith in respect oftemporary buildings, plant, tools, equipment, goods and materials belonging to him, then the Employer may (but without being responsible for any lossor damage) remove and sell any such property of the Contractor, holding the proceeds less all costs incurred to the credit of thecontractor.

accrued 28days or more before the date could first give notice to determine the e

17.2and/orclause 17.3ofthe of the Employer, notto requir good) then within a reasonab referred to in clause 27-6.5 s ha Employer or in a certificate issu ntract Administrator.

-1 The amount of expenses p oyer including those

-2 the amount o

able forthe Works in accordancewith

the Employerto the Contractor as thecase may be.

rmination of the employment of the Contractor not

fication the Employer shall send to the Contractor a statement of

rk properly executed at the date of determination of the

of any expenses properly incurred bythe Employerand of any direct caused to the Employer as a result of the determination.

to the Contractor underthis Contract, or is less than the amount stated

shall be a debt payable by the Contractor to the Employer or bythe Employer to the Contractor as the case may be.

If after the expiry of the 6 month period referred to in clause 27-74 the Employer has not begun to operate the provisions of clause 27-6-1 and has not given a written notification pursuant to clause 27.74 the Contractor may require by notice in writing to the Employer that he states whether clauses 27.6.1 to 27.6-6 are to apply and, if not to apply, require that a statement of account pursuantto clause 27-7-1 be prepared by the Employer for submission to the Contractor.

I


Otherrightsand remedies

27-8 The provisions of clauses 27.2 to 27.7 are without prejudice to any other rights and remedies which the Employer may possess.

28 Determination by Contractor

Notices under 28.1 clause 28

Default by 28.2 Employer - suspension of uncompleted works

28.2

Any notice or further notice to which clauses 28.2-1,28.2.2,28.2-3,28-2.4and 28.3 refer shall be in writing and given by actual delivery or by special delivery or recorded delivery. If sent by special delivery or recorded delivery the notice or further notice shall, subjectto proof to thecontrary, be deemed to have been received 48 hours after the date of posting (excluding Saturday and Sunday and Public Holidays).

-1

-1

IftheEmployershall makedefault inany oneor moreoft

.1 he does not pay bythe final date for pa Contractor in respect of any certificate theVATAgreement;or

.1 -2 he interferes with or obstructs the issue of

-1 -3 he fails to comply with the provisions

-1 .4 he fails pursuant to the Conditions to ents of the CDM Regulations,

the Contractor may give to the Em 'specified default or defaults').

-2 If, before the date of Practical the wholeofthe uncom

g the default or defaults (the

-2 .1 .1 wher s been provided,failureofthe

-1 -2 failureofth dministrator to comply with clause 5.4.2;

r's instructions issued under clause 2.3,14.2 or gligence or default of the Contractor, his oyed orengaged upon or in connection wants or agents other than a Nominated

er or any person employed or engaged by the

ution ofwork notforming part ofthiscontract bythe Employer sons employed or otherwise engaged by the Employer as referred thefailure toexecutesuch workordelay in thesupply bythe erials and goods which the Employer has agreed to supply forthe

orks or t failure so to supply; or

of the Employerto give in due time ingress to or egress from the site of the or any partthereofthrough or over any land, buildings, way or passage

with the site and in the possession and control of the in accordance with the relevant Contract Documents, after receipt by the

Contract Administrator of such notice, if any, as the Contractor is orfailureofthe Employerto givesuch ingressoregressas between the Architecthhe Contract Administrator and the

the Contractor may give to the Employera notice specifying the event or events (the 'specified suspension event or events').


28.2 -3 If

- the Employercontinuesa specified default, or

-

for 14 days from receipt of the notice under clause 28.2.1 or 28-2.2 then the Contractor may on, or within 10days from, the expiry of that 14days by a further notice to the Employer determine the employment of the Contractor under this Contract. Such determination shall take effect on the date of receipt of such further notice.

a specified suspension event is continued

Insolvency of Employer

28.2 a 4 If

- -

the Employer ends the specified default or defaults, or

the specified suspension event orevents cease, or

and

- -

the Employer repeats (whether previously re

a specified suspension event is rep repeated or not), wherebythe regu materially affected,

then, upon orwithin a reasona notice to the Employer determ Such determination shall take

28.2 -5 A notice of determination un hall not begiven unreasonably

28.3 -1 If the Employer 1111

makes a compositi is creditors, or becomes bankrupt, or,

rangement for a composition of debts or scheme ccordance with the Companies Act 1985 orthe

may be or any amendment or re-enactment thereof,

luntary winding-up (except forthe purposes of

Insolvency Act 1986 or any amendment or re-enactment thereof has an ator or an administrative receiver appointed

immediately inform the Contractor in writing if he has made a angement with his creditors, or, being a company, has made a

Insolvency Act 1986orany amendment or re-enactmentthereof as thecase may be;

I Footnote 1111 See JCTPractice Note 2 4 after certain insolvency

events an Insolvency Practitioneractsfor the Employer.

LA WA 98 (9/D3) @The Joint Contracts Tribunal Limited 2003

28.3 -3 the Contractor may by notice to the Employer determine the employment of the Contractor underthis Contract. Such determination shall take effect on the date of receipt of such notice. Provided that afterthe occurrence of any of the events set out in clause 28-3-1 and before the taking effect of any notice of determination of his employment issued by the Contractor pursuant to clause 28-3-3 the obligation of the Contractor to carry out and complete the Works in compliance with clause 2.1 shall be suspended.

Consequencesof determination under cleuse 28.2 or 28.3

28.4 In the event of the determination of the employment of the Contractor under clause 28.2.3, 28.2.4 or 28.3.3 and so long as that employment has not been reinstated, the provisions of clauses 28.4.1,28-4.2 and 28.4.3 shall apply; such application shall be without prejudice to

clause20which may accrue either beforethe Contractororan servants or agents or others employed on or enga

same. Subjectto clauses 28-4.2 and 28.4-3 the provis payment or release or further release of Retention to

precautions as will prevent injury, d before the date of determination he

28.4 .2 Within 28 days of the determinati he Contractorthe Employer shall payto thecontractorthe determination of the em

re the date of determination of

5 which shall include as relevant

uted at the date of determination of the value to be ascertained in accordance with the

ost of removal pursuant to clause 28.4.1; and

terials or goods (including Site Materials) properly orderedforthe ich the Contractor shall have paid or for which the Contractor is legally

ing into account amounts previously paid to the Contractor underthis Contract loyer shall pay to the Contractor the amount properly due in respect of this within 28 days of its submission by the Contractor to the Employer butwithout ction of Retention.

s of clauses 28.2 to 28-4 are without prejudice to any other rights and remedies


28A

28A.1 .1

Determination by Employer or Contractor

Grounds for determination of the employment ofthecontractor

If, before the date of Practical Completion, the carrying out of the whole or substantially the whole of the uncompleted Works is suspended for the relevant continuous period of the length stated in the Appendix by reason of one or more of the following events:

.1 .1 force majeure; or

.1 -2 loss or damage to the Works occasioned by any one or more of the Specified Perils; or

-1 -3 civi1commotion;or

.1 .4 Architect's/Contract Administrator's instructions 23.2 which have been issued as a result of the neg

ob1igations;or authority or statutory undertaker executing work ry

-1 -5 hostilities involving the United Kingdom (whet

.1 -6 terrorist activity

aid notice; and the

28A.l -2 The Contractorsh

soragentsotherthan the

y in pursuance of its statutory obligations.

se 28A-1-1 shall not begiven unreasonablyor

Consequences of determination under clause 28A.l.l -clauses 28A.3 to 28A.6

he Contractor under clause 28A.1.1 the yfurther payment or any release or further

reasonable dispatch and in such mannerand with such

ite all his temporary buildings, plant, tools, equipment, goods Materials) and shall ensurethat his sub-contractors do the

pay to the Contractor one half ofthe Retention deducted by the Employer

hall, not later than 2 months after the date of the determination of the

tion of the account to which this clause refers. Subject to due discharge by the tor of this obligation the Employer shall with reasonable dispatch prepare an

account setting outthe sum of the amounts referred to in clauses 28A.5-1 to 28Ae5-4and, if clause 28A.6 applies, clause 28A.5-5, which shall include as relevant amounts in respect of all Nominated Su b-Contractors:

LA WA 98 /9/03) @The Joint Contracts Tribunal Limited 2003 55

Interim valuations

Application by Contractor - amount of gross

, valuation

continued

pay to the Contractor in addition to the amount not properly paid simple interest thereon for the period until such payment is made. Payment of such simple interest shall be treated as a debt due to the Contractor bythe Employer.The rate of interest payableshall befivepercent(5%)overtheBaseRateofthe Bankof Englandwhich is current at the date the payment by the Employer became overdue. Any payment of simple interest underthisclause30-1.1.1 shall not in any circumstances be construed as a waiver by the Contractor of his right to proper payment of the principal amount due from the Employer to the Contractor in accordance with, and within the time stated in, the Conditions or of the rights of the Contractor in regard to suspension of the performance of his obligations underthis Employer pursuantto clause 30-1.4 or to determination of h pursuanttothedefault referred to in clause28-2.1.1.

against any amount so due under an lnteri Retention is included in that Interim Certifi

Not laterthan 5 days after the date o

proposed to be made, tow whichthat amount iscalcu

relates and the basis on

the amount due pursuant to the Contractor which deducted from that due /or deduction and the

n notice pursuanttoclause30-1.1-3 aythe Contractortheamountdue

e by the Quantity Surveyor wheneverthe Architect/ siders them to be necessaryforthe purpose of

stated as due in an Interim Certificate. [rnrnl

igation of the Architect/the Contract Administratorto use30-1.1.1, thecontractor, not laterthan7 cate, may submit to the Quantity Surveyor

sets out what the Contractor considers to be the amount of the uant to clause 30.2. The Contractor shall include with his

Contractor by a Nominated Sub-Contractor -Contractor considers to be the amount of

valuation pursuant to clause 4.17 of Conditions NSC/C. If the Contractor uch an application the Quantity Surveyor shall make an interim valuation. entthat the Quantity Surveyor disagrees with the gross valuation in the

or's application and/or in a Nominated Sub-Contractor's application the Surveyoratthesametimeas making thevaluation shallsubmittothe or a statement, which shall be in similar detail to that given in the on, which identifies such disagreement.

on the dates provided for in the Appendix and which dates shall continue up to the date of Practical Completion or to within one month thereafter. Thereafter Interim Certificates shall be issued as and when further amounts are ascertained as payable to the Contractor from the Employer and after the expiration of the Defects Liability Period named in the Appendix or upon the issue of the Certificate

Footnote [rnrnl Where formula adjustment under clause 40 applies, clause 40.2.1 provides: 'Interim valuations shall be made before the issue of each Interim Certificate and

accordinglythe words"wheneverthe ArchitecVthe Contract Administrator considers them to be necessary" shall be deemed to have been deleted inclause301~2~1.'

LA WA 98 (9/031 @The Joint Contracts Tribunal Limited 2003 57

30.1 .3 continued

of Completion of Making Good Defects (whichever is the later) provided always that the ArchitecVtheContract Administrator shall not be required to issue an Interim Certificate within one calendar month of having issued a previous lnterim Certificate.

flightof suspensionof obligations by Contractor

30.1 .4 Without prejudice to any other rights and remedies which the Contractor may possess, if the Employer shall, subject to any notice issued pursuant to clause 30-1.1.4,fail to pay thecontractor in full (including any VATdue pursuanttotheVATAgreement) bythe final date for payment as required bythe Conditions and such failure shall continue for7 days afterthe Contractor has given to the Employer, with a copy to the Architecthhe

of hisobligations underthisContracttothe suspension shall not be treated as a suspen

The amount stated as due in an Interim Certificate, s Parties as to stage payments, shall be the grossvalu

Ascertainrnentof amountsdue in Interim Certificates

30.2

any amountwhich may be deducted and reta 30.4 (in the Conditions called the ‘Retention’)

the total amount stated as due in Inter Conditions.

s provided in clause

in clauses30.2-I and 30.2.2 lied up to and including a lessthetotal oftheamounts referre

date not more than 7 days before t

30.2 -1 Thereshall be includedth ect to Retention:

alue underclause40;

-1 -2 tbetot oods delivered to or adjacent to the Works for ontractor but not so incorporated, provided that the

oods shall only be included as and from such times as nd not prematurely so delivered and are adequately

included in the Contract Bills, or, in the cases wherethe nomination arises an instruction as to the expenditure of a provisional sum, at rates related to, or, if none, at reasonable rates.

II be included the following which are not subject to Retention:

amounts to be included in Interim Certificates in accordance with clause 3 as a result of payments made or costs incurred by the Contractor under clauses 6-2,8.3, 9-2and21.2-3;

-2 -2 any amounts ascertained under clause 26.1 or 34.3 or in respect of any restoration, replacement or repair of loss or damage and removal and disposal of debris which in clauses 228-3.5 and 22C.4-4.2 are treated as if they were a Variation;

-2 -3 anyamounttowhichclause35~17 refers;

58 @The Joint Contracts Tribunal Limited 2003 U W A 98 19/03)

30.2 continued

-2 -4 any amount payable to the Contractor under clause39 if applicable;

-2 a 5 the amounts referred to in clause 4.17-2 of Conditions NSClC in respect of each Nominated Sub-Contractor.

30.2 -3 Thereshall be deducted the following which are not subject to Retention:

-3 . I anyamountdeductibleunderclause7 or8.4-2or 17.2or 17.3oranyamount allowable bythe Contractorto the Employer under clause 39, if applicable;

-3 -2 any amount referred to in clause 4-17-3 of Conditions NSC/C Nominated Sub-Contractor.

Off-site materiels orgoods - the 'listed items'

30.3 The materials or goods or items pre-fabricated for inclusion in t

Certificate shall include the value of any listed items be the Works provided that the following conditions have

30.3 . I thecontractor has provided proofthatthe property in uni

uniquely identified listed it stated in the Appendix, has

recital a bond on other terms i

30.3 -2 thecontractor in respectof lis quely identified has provided the Arc hi tect

listed items isvested in the

etyapproved bythe Employera bond in

30.3 -3 theli

sets bylettersorfiguresorby

) -4 J .2 their destination as the Works;

the Contractor has provided the Employer with reasonable proof that the listed items are insured against lossor damage fortheirfull value under a policy of insurance protecting the interests ofthe Employer and the Contractor in respect of the Specified Perils, during the period commencing with the transfer of property in the listed items to the Contractor until they are delivered to, or adjacent to, the Works.

LA WA 98 i9/03) @The Joint Contracts Tribunal Limited 2003

~~ ~~

59

Retention -rules for ascertainment

30-4 -1 The Retention which the Employer may deduct and retain as referred to in clause 30.2 shall be such percentage of the total amount included underclause 30.2-1 in any Interim Certificate as arises from the operation of the following rules:

-1 .I the percentage (in the Conditions and Appendix called the ‘Retention Percentage’) deductible under clause 30.4.1.2 shall be 5 per cent (unless a lower rate shall have been agreed between the Parties and specified in the Appendix as the Retention Percentage); and the percentage deductible underclause30~4~1~3 shall beone half of the Retention Percentage; [nnl

-1 -2 to01 the Retention Percentage may be deducted from so much of the said total amountas relates to:

work which has not reached Practical Completion 18.1 .I or 35.16); and

amountsin respectofthevalueofma 30.2.1.2,30.2.1-3and 30.2.1.4 (sofara goods as referred to in clause 4.17.1 o

-1 -3 1001 half the Retention Percentage may b amount as relates to work which has rea clause 17.1,18.1.1 or35.16) but in respec Making Good Defects underclause 17.4 use 18.1-2oran Interim Certificate under clause 35. mw

30.4 -2 The Retention deducted from the va the Contractor or any Nominated Sub-Contractor, andf sand goods intendedfor

the’Nominated Sub-Contr

Rules on 30.5 The Retention shal treatment of Retention

30.5 -1 the Employer’ ciary as trustee for the Contractor and for

30.5 .2 .I atthe e the Architectlthe Contract Administrator shall rveyorto prepare, a statement specifying the

minated Sub-Contract retention for each deducted in arriving atthe amount stated as due in such

tract Administrator to the

r exercises the right to withhold and/or deduct referred to in clause Retention he shall inform the Contractor of the amount of that

ract retention of any Nominated Sub-Contractor by referencetothe latest

Inn1 Where the Employer atthe tender stage estimates thelenderprice to bef500,OOOorover. the Retention Percentage should not be more than 3 percent.

1001 By theoperation ofclauses30~4~1~2 and30.4.13 the Contractorwill have released to him by the Employer upon payment of the nextlnterim Certificateafter Practical Completion of thewhole or part of the Works approximately one half of the Retention on the whole or the appropriate part and upon payment of the next Interim Certificate after the expiration of the Defects

F O W Liability Period namedinthe Appendix.orafterthe issue of the Certificate of Completion of Making Good Defects, whichever is the later, the balance of the Retentiononthewholeortheappropriatepart. When Retention is so included in Interim Certificates it becomesa ‘sum due’to theContractorandtherefore subjecttotherightsoftheEmployertodeduct therefrom in accordancewith the rightsof theEmployer sotodeductassetoutintheConditions.

I o o l l Notused.


Ascertained Final 30.6 -1 -1 Not later than 6 months after Practical Completion of the Works the Contractor shall Sum - documents from Contractor - final Valuations underclause 14

provide the ArchitecVthe Contract Administrator, or, if so instructed by the Architecthhe Contract Administrator, the Quantity Surveyor, with all documents necessaryfor the purposes of the computations required by the Conditions including all documents relating to the accounts of Nominated Sub-Contractors and Nominated Suppliers.

-2 Not later than 3 months after receipt by the ArchitecVthe Contract Administrator or bytheQuantity Surveyor ofthedocuments referredto in clause30.6.1.1

-2 -1 the Architecthhe Contract Administrator, or, if the Architecthhe Contract Administrator has so instructed, the Quantity Su previously ascertained) any loss and/or expense U 34.3, and

-2 .2 theQuantity Surveyorshall prepareastatemento Ascertained Final Sum as referred to inclause30. whichclause30~6~1~2~1 applies

I a1

ascertainment to which clause 30.6.1.2-1 refe compliancewith clause30.6.1.2.2tothe Cont therefrom to each Nominated Sub-Contract0

ltemsincludedin 30.6 .2 The Ascertained Final Sum shall be the a the Ascertained Final Sum

.2 -1 the amount of the valuation of th ement referred to in clause30.6.1.2;

-2 -2 the amounts of the nomi ersumsfor all Nominated Sub-Contractors as final all relevant provisions of

-2 .3 the tendersu te in accordance with the terms of oyer)foranyworkforwhich a

ause7or8.4.2or 17-2or 17-3orany er in accordance with the nomination inistrator in respect of materials or

uppliers; such amounts shall includethe discount in clause36 butshall excludeanyvalueaddedtax being treated, as inputtax bythe Contractor;

-2 -5 th

from an instruction as to the expenditure of a provisional sum at

I .2 -6 by a m w p a i d o r payable by the Employerto the Contractor as a result of incurred bythecontractor underclauses6-2,8.3,9-2and

under clause 26.1 or 34.3;

id or payable to or allowed or allowable bythe Contractor under whichever is applicable;

ue to the Employer under clause 22A.2,35.18.1.2 or 35-24-6;

r amount which is required by this Contract to be taken into account in the calculation of the Ascertained Final Sum.

soon as is practicable but not less than 28 days before the date of issue of the Final Certificate -final

ascertainment of nominated sub- contract sums

ertificate referred to in clause 30.8 and notwithstanding that a period of one month may not ssue of the previous Interim Certificate, the Architecthhe Contract

Administratorshall issue an Interim Certificate the grossvaluationforwhich shall include the amountsofthesub-contract sumsforall Nominated Sub-Contractsasfinallyadjusted or ascertained under all relevant provisions of Conditions NSC/C.

I LA WA 98 (9/03) @The Joint Contracts Tribunal Limited 2003 61

Issue of Final 30.8 -1 Certificate

30.8 -2

30.8 *3

30.8 -4

30.8 -5

The Architecuhe Contract Administrator shall issue the Final Certificate (and inform each Nominated Sub-Contractor of the date of its issue) not later than 2 months after whicheverofthefollowingoccurs last:

the end of the Defects Liability Period:

the date of issue of the Certificate of Completion of Making Good Defects under clause 17.4;

the date on which the ArchitectCthe Contract Administrator sent a copy to the Contractorof anyascertainmenttowhich clause30.6-1.2-1 refers and ofthe statement prepared in compliance with clause 30-6.1 -2.2.

.I the sum of the amounts alreadystated as due in

-2 the Ascertained Final Sum calculated in

The Final Certificate shall state:

.3 to whatthe amount relates and the basis on ich the As rtain F' al Sum has been calculated

andthedifference(ifany1 betweenthetwosu dicetothe rightsof

thecontractor from the Employ may be.

Not later than 5 days aft a written notice to the C the Contractor from the

ificate the Employer shall give

eforethefinal date for payment of the the Contractor which shall specify any from any balance due to the

olding and/or deduction and the

ive a written notice pursuant toclause 30.8.2 and/or I pay the Contractor the balance stated as due to the

ntractorfails properly to pay the said balance, or any part

iod until such payment is made. The rate of interest payable shall be vertheBaseRateofthe BankofEnglandwhich iscurrentatthedate Employer or by the Contractor as the case may be became overdue.

ent of simple interest underthis clause 30.8shall not in any circumstances be d as a waiver by the Contractor or by the Employer as the case may be of his roper payment of the aforesaid balance due from the Employerto the or or from the Contractorto the Employer in accordance with this clause 30-8.

payment of the balance pursuant to clause 30.8.3 and of any interest clause 30.8.5 shall be treated as a debt due to the Contractor by the Employer ployer by the Contractor as the case may be.

in clauses 30-9.2 and 30.9-3 (and save in respect of fraud), the Final Certificate shall have effect in any proceedings under or arising out of or in connection with this Contract whether by adjudication under article 5 or by arbitration under article 7A or by legal proceedings under article 7B as

62 @The Joint Contracts Tribunal Limited 2003

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30.9 continued

conclusive evidence that where and to the extent that any of the particular qualities of any materialsor goods or any particular standard of an item of workmanship was described expressly in the Contract Drawings orthecontract Bills, or in any of the Numbered Documents, or in any instruction issued by the Architecthhe Contract Administrator under the Conditions, or in any drawings or documents issued by the Architecthhe Contract Administrator under clause 5-3.1.1 or 5.4 or 7, to be forthe approval of the Architecthhe Contract Administrator, the particular quality or standard wastothe reasonable satisfaction ofthe Architecthhe Contract Administrator, but such Certificate shall not be conclusive evidence that such or any other materials or goods or requirement orterm of this Contract, and

conclusive evidence that any necessary effect has been Contractwhich affectthe has been any accidental inclusion or exclusio figure in any computation or any arithmetical eventthe Final Certificate shall haveeffectas computations, and

conclusive evidence that all and only such ext under clause 25 have been given, and

conclusive evidence that the Contractor pursuant to c which the Contractor has or matters referred to in clause of care, statutory duty or

30.9 .2 If any adjudication, arbitratio been commenced byeither Party before the Final Certific conclusive evide

I Certificate shall have effect as

reupon the Final Certificate shall be judgment inorsettlement of such

e Final Certificate during which neither

e 41A-7.1 either Party wishes to have a dispute or difference, on s given his decision on a date which is afterthe date of issue of Ily determined by arbitration or legal proceedings, either Party ion or legal proceedings within 28 days of the date on which the

no certificate of the Architecthhe Contract Administrator shall of itself be


31 Construction Industry Scheme (CIS)

Definitions 31.1 In thisclause and in the Appendix:

'the Act' means the Income and Corporation Taxes Act 1988or any statutory amendment or modification thereof;

'Authorisation' means:

either 'CIS 4', the registration card designated 'CIS 4(T)' and which has an expiry date or 'CIS 4(P)', in the form provided by regulations 7 and 7C of the Regulations appearing asshown inSchedule 1 oftheRegulationsandissued byt

'CIS 5' or 'CIS 6', the certificates in the form provide Regulations and appearing as shown in Schedule 1 the Inland Revenue;

a 'certifying document' created on the Cont fax or photocopy, in the form prescribed by

or

or

'construction operations' means those operations operations;

e Ac't as construction

'contractor' means a person who is a contractor for Regulations;

'the direct cost of materials' means the materials used orto be used in carryi underwhich the payment is made r

'the Regulations' means the I Regulations 1993S.I. No.743 Construction IndustMAmen

Act and the

tor or to any other person of erations to which the contract ion 7 of the Regulations;

n the Construction Industry)

S.I. No. 2622 or any amendmentor ax (Sub-Contractors in the

re-making thereof;U&\\

'statutory deduction' m nsthe ductio hi is in forceatthetime of payment referred . . to in S.559(4) and (4A) of th-t; \ 'sub-contractor' m e r s o h s 2ub-contractor forthe purposes of the Act and the

form CIS 25 provided by regulation 7 and appearing as gulations and issued by the Inland Revenue;

t voucher CIS 24 in the form provided by regulation 29 and own in Schedule 1 ofthe Regulationsand issued bythe Inland

Whether ppendixthatthe Employer is nota'contractor'clauses31~3to31~14 Employer is a 'contractof or', the Employer shall so inform the Contractor and the

less if, at any time up to the payment of the Final Certificate, the

all thereupon become operative.

shall not make any payment under or pursuant to this Contract unless a ation has been provided to him or his nominated representative by the

loyer or his nominated representative is not satisfied with the validity ofthe ntractor, he shall thereupon notify the Contractor in ing thatthe Authorisation is not valid.

U

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314

Authorisation: 31.5 CIS 4 registration card

Authorisation: CIS 5 or CIS 6 ora certifying document

Changeof I Authorisation

31.5

31.5

31.6

31.7

31.8

31.9

-2 Where a notification has been given under clause31-4.1, the Employershall not make any payment under or pursuant to this Contract until

either the Employer or his nominated representative has received an Authorisation which he considers to be valid

or the Contractor has re-submitted the Authorisation with a letterfrom the Contractor’s tax off ice, confirming that that Authorisation is valid.

.1 Where the Authorisation is a CIS 4 registration card, then 7 days before the final date for payment of any sum due:

e 1 -1 the Contractor shall give to the Employer a statements materials to the Contractor and to any other persons to and

.1 a2 the Employershall makethestatutorydeductionfrom

-2 Where the Contractorcomplieswith clause 31.5.1 against any loss or expense caused to the Employ amountofdirectcost referred to inclause31-5.1-1

31-5.1-1 isincorrect,the Employershall materials.

Where the Authorisation is a valid pay any amount duewithout maki

umentthe Employer shall

Where the Autho equently issued with a CIS 5 or ly inform the Employer and

Authorisation, clau

6 expires, the Employer shall make no further payments to the o this Contract until the Contractor:

the Employer or his nominated representative an Authorisation CIS 5 or rtifying documentand ifsoclause31-6shall apply.

CIS 4 applies and the Employer has made payments to the Contractor, thin 14daysoftheendoftheincometaxmonth100.21 inwhichthe ide the Contractor with a copy of the CIS 25voucherthat he has sent to

ing all the payments made in the tax month concerned and the total

6 applies and the Employer has made payments to the Contractor, n 14 days of the end of the income tax month 100.21 in which the

etheClS 24vouchertothe Employerwhoshall addthereto histax

Vouchers

the voucherto the Inland Revenue with a copy to thecontractor.

Footnote 100.21Theincome tax monthendsonthe5thdayofthe month.


Correctionof errors in making thestatutory deduction

Relation to other clauses

Disputesor differences

Effect of find of antiquities

Architect's/ Contract Administratofs instructions on antiquities found

Direct loss andor expense

31.12 Where the Employer has made an error or omission in calculating the statutory deduction, he may correct theerror by repayment or further deduction from payments dueto the Contractor, subject only to an instruction by the Inland Revenue to the Employer notto make such a correction.

31.13 If compliance with thisclause 31 involves the Employer orthe Contractor in not complying with any other of the Conditions, then the provisions of this clause shall prevail.

31.14 The relevant procedures applicable under this Contract to the resolution of disputes or differences between the Employer and the Contractor shall apply to any dispute or difference between the Employer and the Contractor as to the operation of this clause 31 except where the Act orthe Regulations oranyotherActof Parliament order made under any Act of Parliament provide for dispute or difference.

32 [Number not usedl

33 [Number not usedl

34 Antiquities

34.1 All fossils, antiquities and other obje in excavatingthesameduring the Employer and upon discovery of s

ch may be found on the site or

34.1 .1 use his best endeavours shall cease work if and insofar as

erve the object in theexact position and

34.1 .3 informthe nistrator ortheclerkofworksofthediscovery

trator shall issue instructions in regard to what is to be the Contractor under clause 34.1, and (without

a sub-contractor.

e Architecthhe Contract Administrator compliance with the 34.1 or with an instruction issued under clause 34-2 has involved the

loss andlor expense forwhich he would not be reimbursed by a er any other provision of this Contract then the Architectithe

in clause 25i4.5.1 so far as that clause refers to clause 34.

be included inthecalculationofthe Ascertained Final Sum.


Part 2: Nominated Sub-Contractors and Nominated Suppliers

Nominated Sub-Contractors

35 GENERAL

Definition of a 35.1 Where Nominated Sub Contractor 35.1 .I in thecontract Bills; or

35.1 e 2 in any instruction of the Architecthhe Contract Administrat

35.1 -3 in any instruction of the Architecthhe Contract Admi

expenditure of a provis

requiring a Variation to th

-3 -1 that it consists of work additional to that described by or referred to in the Contra

-3 .2 that any supply and fixing of Nominated Sub-Contractor i kind to any supply andfixing Contract Bills provided that t nominate a sub-co

inistrator would

35.1 -4 by agreement (which agre delayed orhuithheld) between the Contract0 Employer

the Architecthhe Cont rbytheuseofaprimecostsumorby

the subcontract accordance with Nominated Sub 35.1 shall apply no for a PC sum to be i

I selection and approval of the sub- y materials or goods or execute work,

roved shall be nominated in contractor so nominated shall be a Contract. The provisions of clause

Standard Method of Measurement Quantities in respect of Nominated Sub-

\-) Contractors.

Contractor's 35.2 -1 Whe ary course of his business directly carries out works tender for works to which clause 35 applies, and where items of such

and the Architecthhe Contract Administrator is otherwise reserved for a Nominated Sub the Contractor for such items, then thecontractor shall Contractor

west or any tender. If the Contractor's tender is accepted, Domestic Sub-Contractorwithout theconsent of the rator. Provided that where an item for which the

tor intends to nominate asub-contractor is included in ontract Administrator's instructions issued under clause 14.3 it shall be he purposes of clause 35.2-1 to have been included in the Contract Bills and orktowhich it relates shall likewise be deemed to have been set out in the

r the same or any of them but without prejudice to the

of any tender accepted under clause 35.2 that clause 14shall apply work included in the tender as if forthe reference therein to the

the Contract Bills there were references to the equivalent documents included in or referred to in the tender submitted under clause35-2.

None of the provisionsof clause 35 other than clause 35.2 shall apply to works for which a tender of the Contractor is accepted under clause 35.2.

I LA WA 98 19/03) @The Joint Contracts Tribunal Limited 2003 67

PROCEDURE FOR NOMINATION OF A SUB-CONTRACTOR

35.3 The nomination of a sub-contractor to which clause 35.1 applies shall be effected in accordance with clauses 35.4 to 35-9 inclusive.

Documents relating to Nominated Sub-Contractors

35.4 The following documents relating to Nominated Sub-Contractorsare issued by the JCTand are referred to in the Conditions and in those documents by the use either of the name or of the identification term:

Name ofdocument Identification term

The Standard Form of Nominated Sub-Contract Tender 1998 Edition which comprises:

Part 1: The Architect'sflhe Contract Administrator's Invitation toTenderto a Sub-Contractor

Part2: Tender byaSub-Contractor

Part3: ParticularConditions (to beagreed bya and a Sub-Contractor nominated under

Sub-Contract Agreement between a Contractor The Standard Form of Articles of Nominated

nu Nominated Sub-Contractor, 1998 Edition

The Standard Conditions of Nomina Edition, incorporated by reference in

The Standard Form of Empl Agreement NSCN Sub-Contractor Agreement,

The Standard For Nomination NSC/N Sub-Contractor

Conditions NSC/C

Contractor's right 35.5 -1 Nopersonag sa reasonable objection shall bea of reasonable Nominated Sub- hall makesuch reasonable objection in objection nt but in any case not laterthan 7 working days

hitecvthe Contract Administrator under clause writing at from rece 35-6 nomi

Architect's/ Contract Administrator's instruction on Nomination

documents accompanying the i n s t r u n

NSCIN -

35.5 -2 Wh n is made the Architecthhe Contract Administrator may remove the objection so that the Contractor can then of such nomination instruction or cancel such

ssue an instruction either under clause 13.2 omitting the of that nomination instruction or under clause 35.6 ntractortherefor. Acopy of any instruction issued under y the Architecthhe Contract Administrator to the sub-

ct Administrator shall issue an instruction to the contractor on nating the sub-contractor which shall be accompanied by:

rt 1 completed bythe ArchitecVtheContract Administrator and NSCflPart2 d signed by the sub-contractor and signed by or on behalf of the Employer togetherwith a copy ofthe numbered tender documents listed in and

er with any additional documents and/or nts thereto as have been approved by the Architecthhe Contract

mpleted Agreement NSCN entered into between the Employer and the

ion of any alterations to the information given in NSC/T Part 1

item 7: obligations or restrictions imposed by the Employer item 8: order of Works: Employer's requirements item 9: type and location of access; and


- copy of instruction to sub contractor

Contractofs obligations on receipt of Architect's/ Contract Administrator's instruction

Noncompliance with clause 35.7 - Contractofs obligation to notify Architect/ Contract Administrator

I

Architect's/ Contract Administrator's duty on receipt of any notice under c l ~ ~ s e 3 5 4

35-6 -4 a copy of the Principal Contractor's Health and Safety Plan.

Acopyofthe instruction shall be sent bythe ArchitecthheContract Administratorto thesub- contractor together with a copy of the completed Appendix for the Main Contract.

35.7

35.7

The Contractor shall forthwith upon receipt of such instruction:

-1 complete in agreement with the subcontractor NSCF Part3 and have that completed NSCFPart 3 signed by or on behalf of thecontractor and by oron behalf ofthe sub- contractor: and

35.7 -2 execute Agreement NSC/A with the subcontractor

and thereupon shall send a copy of the completed Agreement N signed NSCFPart3 (but nottheother Annexures to Agreement Contract Administrator.

If the Contractor, having used his best endeavours, has receipt of such instruction,complied with clause 35.7, t

35.8

either

or

35.8 .2 that the non-compliance is due to ot e Contractor's notice. IPPI

35.9 Within a reasonable time after receipt the Architectlthe Contract Administrator shall:

35.9 -1 whereclause35 ontractor and so far as he considers it reas ractor shall havecomplied with

35-9 -2 where clause 35.8

with clause 35.7 in respect of such nomination

the matters identified in the notice justify non-

can then comply with clause 35.7 in respect of such

ruction or under clause 35-6 nominating another sub-

1 / 35.12 hqnberGused1

\ / I I ther matters identified in the Contractor's y include: any discrepancy in or divergence e numbered tenderdocumentsora

discrepancyinordivergence between the numbered tender documents and the documents referred to in clauses2.3.1 to 2-3.4; and anyreasonsgiven to the Contractor by the sub-contractorfor not agreeing the itemsin NSCflPart3orfornotbeingprepared tohave NSCrrPart3 signed by or on his behalfwhich may relateto: theitems inthe Main Contract Appendixsentto him bythe ArchitecVtheContract Administrator with a

copy of the nomination instructiondiffering from those in the Main Contract Appendix attached to the Architect'dthe Contract Administratof s Invitation to Tender(NSC/TPart 1);orto any informationgiven to him in items7,8and9oftheArchitect's/theContract Administrator's Invitation to Tender having been changed as confirmed by the Architectlthe Contract Administrator when issuing his nomination instruction (seeclause35~6~3),whichchanges haveto beidentified in N S W Part 3.


ArchitecVContract 35-13 -1 The Architecuhe Contract Administrator shall on the issue of each Interim Certificate: Administrator -

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35.13 .5 continued

Agreement N S C p pre- nomination payments to Nominated Sub Contractor by Employer

-3 -4 clause 35-13.5-2 shall cease to have effect absolutely if at the date when the reduction and payment to the Nominated Sub-Contractors referred to in clause 35.13-5.2 would othewise be made there is in existence

either a Petition which has been presented to the Court forthe winding up of the Contractor

or a resolution properly passed forthe winding up of the Contractor other than for the purposes of amalgamation or reconstruction

whichever shall have first occurred. [qq~

35.13 -6 Where, in accordance with clause 2-2 of Agreement NS date of the issue of an instruction nominating a sub-contra amount in respect of design work and/or materials or are included in thesubject ofthesubcontractsum or

-6 -1 the EmDlover shall send to the Contractor the wr n w en statem t of t minated Sub-Contractor of the amount to be credited

.6 .2 the Employer may make withholdingsorded unt of such credit from the amountsstated as due to the Contra which include amounts of interim orfin Contractor; provided that due in anyone Interim Ce Nominated Sub-Contract0 Contract Administrator.

EXTENSION OF PER CONTRACT WORKS

F NOMINATED SUB-

Sub-Contractor any extension of the

ecompleted except in accordance ich require the written consent of

shall operate the relevant provisions of ce, particulars and estimate and a request

INATED SUB-CONTRACT WORKS

d that clause 35.1 4 has been properly applied, the ArchitetSAhe hall so certify in writing to the Contractor. Immediately upon

issued not laterthan 2 months from the date of notification to the ArchitecMhe Contract Administratorthatthe Nominated Sub-Contractor has failed to complete thesub- contract works orany part thereof.

Footnote [qql Where thecontractor is a person subjectto bankruptcy laws and not the law relating to the insolvency of a company, clause 3513.5.3.4 will

requireamendmentto refertothe eventsonthe happening of which bankruptcy occurs. (See also footnote le].)

LA WA 98 (9m3) @The Joint Contracts Tribunal Limited 2003 71

PRACTICAL COMPLETION OF NOMINATED SUB-CONTRACT WORKS

Defects in nominated sub- contract works after final paymentof Nominated Sub- contractor - before issue of Final Certificate

35.16 When in the opinion of the ArchitecVthe Contract Administrator practical completion of the works executed by a Nominated Sub-Contractor is achieved and the Sub-Contractor has complied sufficientlywith clause 5E.2.5of Conditions NSC/C he shall forthwith issue a certificate to that effect and practical completion of such works shall be deemed to have taken place on the day named in such certificate, a duplicate copy ofwhich shall be sent by the Architecthhe Contract Administratorto the Nominated Sub-Contractor; where clause 18 applies practical completion of works executed by a Nominated Sub-Contractor in a relevant part shall be deemed to have occurred on the relevant date to which clause 18-1 refers and the Architectithe Contract Administrator shall send to the Nominated Sub-Contractor a copy ofthe written statement which he has issued pursuantto clause

EARLY FINAL PAYMENT OF NOMINATED

35-17 Provided clause 5 of Agreement NSCW remai the day named in the certificate issued under c Administrator may, and Interim Certificate the gr contract sum or ascertained final sub-contra the relevant provisions of Conditions NSCK Contractor:

35.17 -1 hasintheopinionofthe Archite remedied any defects, shrinkag Nominated Sub-Contractor is bo

ared and which the ominated Sub-Contract; and

35.17 -2 hassentthrough the act Administrator orthe Quantity Surveyor al sum orthe comput

djustment of the sub-contract

35.17.

35.18 Upon payment by for paymentto the Nominated Sub- Contractor (the 'origina ountcertified under clause35-17 then:

35.18 .1 -1 ifth ctifyanydefect,shrinkageorotherfauItin the to remedy underthe Nominated Sub- e issue ofthe Final Certificate under clause

Administrator shall issue an instruction nominating contractor') to carry out such rectification work and ominated Sub-Contractors in clause35 shall apply to

s u c h f u r t v n

ke such steps as may be reasonable to recover, under the rom the original sub-contractor a sum equal to the sub- ubstituted sub-contractor.The contractor shall payor allowto erence between the amount so recovered by the Employer

ract price of the substituted su b-contractor provided that, before ation has been made, the Contractor has agreed (which ot be unreasonably delayed or withheld) to thesub-contract price e substituted sub-contractor.

shall override or modify the provisions of clause 35.21.

ayment to a Nominated Sub-Contractor underthe provisions of

I Completion of the Works or the date when the Employertakes , whicheverfirst occurs, the Contractor shall be responsible for -contractworksforwhich a paymenttowhich clause35.17

refers has been made to the same extent but not further or otherwise than he is responsible for that part of the Works for which a payment as aforesaid has not been

35-19 .2 the provisions of clause22Aor 228 or 22C whichever is applicable shall remain in full force and effect.

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35.20

35-21

35.22

35.23

35.24

POSITION OF EMPLOYER IN RELATION TO NOMINATED SUB-CONTRACTOR

Neitherthe existence nor the exercise of the powers in clause 35 nor anything else contained in the Conditions shall render the Employer in any way liable to any Nominated Sub- contractor except by way and in the terms of the Agreement NSCNV.

CLAUSE 2.1 OF AGREEMENT NSCW - POSITION OF CONTRACTOR

The Contractor shall not be responsible tothe Employer for:

-1 the design of any nominated sub-contract works insofar as su contract works have been designed by a Nominated Sub-Con

.2 the selection of the kinds of materials and goodsforany no insofar as such kinds of materials and goods have been se1 Contractor;

-3 the satisfaction of any perfor performance specification or requirement is inch any nominated sub-contract works included in or documents enclosed with any NSCfl Part 1;

.4 the provision of any information req in reasonable timesothatthe Archit provisions of clauses 5-44 and 5.4-2 in r

Nothing inthisclause35-21 shall affec in regardtothe supply ofworkmanshi Contractor.

ctor underthis Contract ominated Sub-

RESTRICTIONS IN LIMITATION OF LIABILITY OF

the Employer

NECESSARY

3 5 . 2 4 - u m s the Architectithe Contract Administratorthat in the minion ofthe Nominated Sub-Contractor has made default in respect of any one or

that the Nominated Sub-Contractor has

insolvency events referred to in clause 7-24 of Conditions NSC/C fhsolvency of Nominaredsub-Conrractorl has occurred and either that under clause 7.2.3 of the aforesaid Conditions the employment of the Nominated Sub-Contractor has been automatically determined or that under clause 7.2.4 of those Conditions the Contractor has an option, with the written consent of the Architectithe Contract Administrator, to determine the employment of the Nominated Sub-Contractor; or

35.24 -3 the Nominated Sub-Contractor determines his employment under clause 7.7 of Conditions NSC/C; or

LA WA 98 (9103) @The Joint Contracts Tribunal Limited 2003 73

i I :!

,i

35.24 -4 the Contractor has been required by the Employer to determine the employment of the Nominated Sub-Contractor under clause 7-3of Conditions NSC/C and hasso determined that employment; or

35.24 *5

the

35.24 -6

.6

-6

*6

4 35.24 *7

work properly executed or materials or goods properly fixed or supplied by the Nominated Sub-Contractor haveto be taken down and/or re-executed or re-fixed or re- supplied (’work to be re-executed’) as a result of compliance by the Contractor or by any other Nominated Sub-Contractor with any instruction or other exercise of a power of the Architect/theContractAdministratorunderclause7 Or840r 17-2or 17.3and the Nominated Sub-Contractor cannot be required under the Nominated Sub-Contract and does not agree to carry out the work to be re-executed;

In:

Where clause35.24-1 applies:

to give to the Nominated Sub-Contractor defaults to which clause7.l.l of Conditio instruction state that the Contractor mus Architecthhe Contract Administrator be Nominated Sub-Contractor under claus

1, the employment of

er instruction referred to the Nominated Sub-Contractor ontractor under clause7-1.2or7.1.3of Conditi in clause 35.24-6.1 has Contractor shall confir ominated Sub-Contractor has been determined;

een so determined the nomination of a sub- tosupply and fixthe

ted by or any materials or goods supplied by e employment has been determined which ant Nominated Sub-Contract.

nd the Contractor has an option under clause 7-2-4of of Nominated Sub-Contractor) to determine the Sub-Contractor, clause 35.24-7.2 shall apply in

[?U) mi istrator orthe administrative receiver of the Nominated Sub-

with his creditors or, being a company, after making a voluntary arrangement for acomposition of debts or a scheme of arrangement approved in accordance with the Companies Act 1985orthe Insolvency Act 1986 or any amendment or re-enactmentthereof as the case may be

prepared and able to continue tocarry out the relevant Nominated -Contract and to meet the liabilities thereunder, the Architecthhe Contract

Administrator may withhold his consent. Where continuation on such terms does not apply the Architecthhe Contract Administrator shall give his consent to a determination by the Contractor of the employment of the Nominated Sub- contractor unless the Employer and the contractor otherwise agree.


! 35.24 continued

-7 .3 Where the written consent of the Architecthhe Contract Administrator to the determination of theemploymentof the Nominated Sub-Contractor has been given and the Contractor has determined that employment orwhere, under clause 7-2.3of the Conditions NSC/C, the employment of the Nominated Sub-Contractor has been automatically determined the following shall apply. The ArchitecUhe Contract Administrator shall make such further nomination of a sub-contractor in accordance with clause35 as may be necessary to supply and fix the materials or goods or to execute the work and to make good or re-supply or re-execute as necessary any work executed by or any materials or goods supplied by the Nominated Sub-contractor whose employment has been d not in accordance with the relevant Nominated Sub-Con

-7 .4 Whereclause35.24.4applies the Architect/the Contrac such further nomination of a sub-contractor in accorda necessary to supply and fix the materials make good or re-supply or re-execute as materials or goods supplied by the Nomi has been determined which were not in accor Sub-Contract.

35-24 a 8 .1

materials or goods

Contract.

-8 -2 Where clause 35.24.5 ap ract Administratorshall make such further nomination rdance with clause 35 as may be

to in clause 35.24-5.

35.24 e 9 Theamountpro actor underthe Nominated Sub-Contract re r clause 35.24-6-3 or 35.24.7.3

ue in Interim Certificates and nd 35.24.8-1 apply any extra amount ractor nominated underthe further ontractorwho has validly determined

ntract, and whereclauses35.24.5 and mployer resulting from such further r such amount is certified in respect of the nomination be deducted by the Employer

sContract or may be

ct Administrator shall make the further nomination of a sub- n clauses 35.24.6.3,35.24.7,35.24.8.1 and 35.24.8.2 within a regard to all thecircumstances, afterthe obligation to make

A w n has arisen.

OF NOMINATED

Nominated SubContractbyvirtueof any rightto without an instruction from the Architecthhe

I Sub-Contractor is determined under clauses

7.1 to 7.5 of Conditions NSC/C, the Architecthhe Contract Administrator shall provide the Contractorwith the information and with the direction in an Interim Certificate to enable the Contractortocomplywith clause7.5.2 of Conditions NSC/C: namelythe amount of expenses properly incurred by the Employer and the amount of direct loss and/or damage caused to the Employer by the determination of the employment of the Nominated Sub-Contractor; and shall, pursuant to clause 35.13.1, issue an Interim Certificate which certifies the value of any work executed or goods and materials


35.26 -1 continued

supplied by the Nominated Sub-Contractor to the extent that such value has not been included in previous Interim Certificates.

35.26 -2 Where the employment of the Nominated Sub-Contractor is determined under clause 7-7 of Conditions NSCK and clause7.8 of those Conditions applies, the Architecahe Contract Administrator shall, pursuant toclause 35.13.1, issuean Interim Certificate which cettifiesthevalueof anyworkexecuted or goodsand materialssupplied bythe Nominated Sub-Contractorto the extentthat such value has not been included in previous Interim Certificates.

76 @The Joint Contracts Tribunal Limited 2003

Nominated Suppliers

Definitionof a Nominated Supplier

36.1 -1 In the Conditions 'Nominated Supplier' means a supplierto the Contractor who is nominated bythe Architecthhe Contract Administrator in one of the following ways to supply materials or goods which are to be fixed by thecontractor:

-1 where a primecost sum is included in the Contract Bills in respect ofthose materials or goods and the supplier is either named in the Contract Bit named by the Architecthhe Contract Administrator in an ins clause 36.2;

-1

the Architectlthe Contract Administrator in r the supply of materials or goods is made the

in an instruction issued under clause 36-2;

-3 where a provisional sum is included in the Co the Architectlthe Contract Administrator in re

there isonlyone supplierfro the supply of materials or go

-1

hall be deemed to have

.1 -4 where the ArchitecthheCo

36.1 .2 In the Conditio d Supplier' shall not apply to a supplier of e Contract Bills to be fixed by the Contractor

dsasdefined inclause36.1-1-3.

Architect's/ Contract Administrator's instructions

tor shall issue instructions for the purpose of n respect of which a prime cost sum is

Ascertainment of perlychargeabletotheEmployer in costs to be set on instruction ofthe Architecthhe Contract Administrator" sum paid or payable in respect of the materials or goods, less

use 36-4.4, properly so chargeable

against prime cost

reated, or is capable of being t otherwise recoverable underthis

ctbywhomsoeverpayablewhich is payableunderor byvirtueofanyActof nt on the import, purchase, sale, appropriation, processing, alteration, for sale or use of the materials or goods to be supplied; and

livery afterallowingforany ~

r payable to, or allowed or I allowable by,thesupplierlessanydiscountotherthan acash discountfor payment

in full within 30 days of the end of the month during which delivery is made. I


36.3 -2 Where in the opinion of the Architecthhe Contract Administrator the Contractor properly incurs expense, which would not be reimbursed under clause 36-34 or otherwise under this Contract, in obtaining the materials or goods from the Nominated Supplier such expenseshall be included in thecalculation ofthe Ascertained Final Sum.

Sale contract 36.4 provisions - Architect's/ Contract Administratof s rightto nominate supplier 36.4

36.4

36.4

Save where the Architecthhe Contract Administrator and the Contractor shall otherwise agree, the Architecvthe Contract Administrator shall only nominate as a supplier a person who will enter into a contract of sale with the Contractor which provides, inrerelie:

.I thatthematerialsorgoodsto besuppliedshall beofthequalityandstandardspecified provided thatwhere and to the extent that approval of the quality of materials or of the standards of workmanship is a matter for the opinion of the

-2 thatthe Nominated Supplier shall make good by replac

.2 -1 where the materials or goods have been U reasonable examination by the Contract0 using orfixing;

led them before

rial in the materials or

ny person or persons

-3 thatdeliveryofthe materi II becommenced, carried out and

,to the extent agreed, the following e to be agreed between the

civil com&ocal c&na& of workmen, strike or lock-out;or

nistrator underclause 14.2

ract Administrator to supply to the Nominated cessary information for which he hasspecifically

reasonably distantfrom nor cessaryfor him to receive the

all be commenced, carried out and ance with the reasonable directions of the Contractor;

beobliged to make anydeliveryof materialsor

month during which delivery is made less only a discount for cash of 5 percent if so paid;

36.4 .7 thatthe ownership of materials or goods shall passto the Contractor upon delivery by the Nominated Supplier to or to the order of the Contractor, whether or not payment has been made in full;


36.4 -8

364 -9

Contract ofsale - 36.5 -1 restriction, limitation or exclusion of liability

36.5 -2

36.5 -3

that if any dispute or difference between the Contractor and the Nominated Supplier is referred to arbitration the provisions of clause 41 B shall apply;

that no provision in thecontract of sale shall override, modify or affect in anyway whatsoever the provisions in the contract of sale which are included therein to give effect to clauses 36.4.1 to 36.4.9 inclusive.

Subject to clauses 36.5.2 and 36.5-3, where the said contract of sale between the Contractor and the Nominated Supplier in any way restricts, limits or excludes the liability ofthe Nominated Supplierto thecontractor in respect of materialsorgoods supplied orto be supplied, and the Architecthhe Contract Administrator has specifically approved in writing the said restrictions, limitations or ex Contractorto the Employer in respect of the said materials limited or excluded to thesameextent.

The Contractor shall not be obliged to enter into a contra until the Architecthhe Contract Administrator has specific said restrictions, limitations or exclusions.

r

Nothing in clause 36.5 shall be construed as e n a b l i n & & % & t i ? h h h t r a & Administrator to nominate a supplier otherwise th stated in clause 36.4.


Part 3: Fluctuations

Choice of 37 fluctuation clause 39 Irrl; or provisions -entry in Appendix

Fluctuations shall be dealt with in accordance with whichever of the following alternatives

clause 40 ISSI

is identified in the Appendix.The provisions so identified shall be ~al deemed to be incorporated with the Conditions as executed by the Parties hereto.

Clause 38: Not used Clause 39: Labour and materials cost and tax fluctuations Clause 40: Use of priceadjustment formulae

[nlClause39 should be used wherethe Parties have agreedtoallowthe labourand materialscostandtax fluctuations to which clauses39~1 to .3 refer. Alternatively, clause 40 should be used where the Parties have agreed that fluctuations shall be dealtwith by adjustment of the lender Price under the Price Adjustment Formulae for Building Contracts.

IsslClause 40isusedwherethe Parties haveagreed that fluctuationsshall bedealtwith underthe Price Adjustment Formulae for Building Contracts.

Ittl Notwithstanding theprovisionsofclause37 on deemed incorporation the Parties may nevertheless wish to incorporate the agreed alternative fluctuation provisions in the executed Contract.

LA WA 98 (9/03) I 80 @The Joint Contracts Tribunal Limited 2003

Part 4: Settlement of disputes - adjudication - arbitration - legal proceedings

Application of ! ! ' clause41A I

ldentityof Adjudicator

Death of

inability to adjudicate

I Adjudicator -

Dispute or difference - notice of intention to refer to adjudication - referral

41A Adjudication [uul l

41A.1 Clause 41Aapplies where, pursuant to article 5, either Party refers any dispute or difference arising underthis Contract to adjudication.

bythe person named in the Appendix (the 'nominator'). Provided th

no Adjudicator shall be agreed or nominated under clause will not execute the Standard Agreement for the appointme bythe JCT (the'JCTAdjudication Agreement' IWWI) with the

41A.2 -1

must be reached

appointment of, and the referr within 7 daysof the date of th

e to, the Adjudicator

icatororupon receipt bythe Parties from the nomi thereupon execute wi

for some other cause and is thus d to him, then eitherthe Parties may

tororeither Party may applytothe o adjudicate that dispute or difference; and reementwith the agreed or nominated

res a dispute or difference to be referred to

lyon such agreement or appointment. The said Party shall particulars of the dispute or difference togetherwith a

works relating to the primary structural elements the Adjudicator should consider an accelerated time table forthe adjudication procedures:see JCTPractice Note2 (Series 2): Adjudication under JCTForms.

Adjudication Agreement'.

[ww)The JCTAdjudication Agreement isavailable from theretailersof JCTForms.

the Parties have named an Adjudicator in their contract. 1 Avarsionofthis Agreement isalsoavailableforuse if


41A.4 *Z

Conductofthe 41A.5 *1 adjudication

41A.5 -2

41A.5 -3

41A.5 *4

41A.5 .5

The referral by a Party with its accompanying documentation to the Adjudicator and the copies thereofto be provided to theother Party shall begiven by actual deliveryor by FAX or by special delivery or recorded delivery. If given by FAX then, for record purposes, the referral and its accompanying documentation must forthwith besent by first class post or given by actual delivery. If sent by special delivery or recorded delivery the referral and its accompanying documentation shall, subjectto proof to thecontrary, be deemed to have been received 48 hours after the date of posting subject to the exclusion of Sundays and any Public Holiday.

The Adjudicator shall immediately upon receipt of the referral and its accompanying documentation confirm thedate of that receipt to the Parties.

The Party not making the referral may, bythesame mean to the Adjudicator within 7 days of the date of the referral, a written statement of the contentions on which he relies Adjudicator to consider.

The Adjudicator shall within 28 days of the refe Adjudicatorforthe purposes of S.108ofthe Ho Regeneration Act 1996and not as forthwith send that decision in writ made the referral may consent to a days by upto 14days;andthatby been made a longer period than 2 Adjudicator within which to reach his de

The Adjudicatorshall not be obliged

sown procedure; efactsand the law

as heconsiders necessary y includethefollowing:

ing and revising any certificate, opinion, en or made under this Contract as if no

ent or notice had been issued, given or

rthfinformation than that contained in the notice of ng documentation or in anywritten statement provided results of any tests that have been made or of any

outtests or additional tests orto open up work or

f the Works or any workshop where work is being or has been

ormation as he considers necessaryfrom any employee or of the Parties provided that before obtaining information from an arty he has given prior notice to that Party;

thers such information and advice as he considers necessary on legal matters subject to giving prior notice to the Parties together

estimate of the cost involved;

any term of this Contract relating to the payment of interest, mstances in which orthe period forwhich asimple rateof interest

rty to enter into the JCTAdjudication Agreement orto comply with any requirement of the Adjudicator under clause 41A.5.5 orwith any provision in or requirement underclause 41Ashall not invalidatethe decision ofthe Adjudicator.

41A.5 .7 The Parties shall meet their own costs of the adjudication except thatthe Adjudicator may directastowhoshould paythecostof anytestoropening upif requiredpursuantto clause 41A.5-5.4.

82 @The Joint Contracts Tribunal Limited 2003 LA WA 98 (9/03) I

41A.5 .8 Where any dispute or difference arises under clause 8.4-4 as to whether an instruction issued thereunder is reasonable in all the circumstances the following provisions shall apply:

a 8 ~1 The Adjudicatorto decide such dispute or difference shall (where practicable) be an individual with appropriate expertise and experience in the specialist area or discipline relevantto the instruction or issue in dispute.

-8 -2 Where the Adjudicator does not have the appropriate expertise and experience referred to in clause 41A.5.8.1 above the Adjudicator shall appoint an independent expert with such relevant expertise and experience to advise and report in writing

circumstances.

-3 Where an expert has been appointed by the Adjudicator -8

pay the fees and expenses of such expert or the prop0 expenses are to be shared between the Parties.

expert has been appointed by the Adjudica copies of the Adjudicator's instructions tot

Adjudicator'sfee 41A.6 -1 The Adjudicator in hisdecision shal ee and reasonable and reasonable expenses - payment

expenses is to be apportioned as b

proportions.

t of such statement the

judicatorfor his fee and for all expenses reason

Effect of 41A-7 -1 The decision of th the Parties until the dispute or Adjudicator's difference is finall legal proceedings IXXI or by an decision erthe decision of the Adjudicator has

41A.7 -2 The Parties sh

the decision of

41A.7 .3 Ifeith

Immunity liable foranything doneoromitted inthe dischargeor purported Adjudicator unlesstheactoromission is in badfaith andthis I similarlyextend toany employeeor agentof theAdjudicator.

Rule or Rules is a reference to the JCT 1998edition of the

article 7A either Party requires a dispute or difference to be referred Party shall serve on the other Party a notice of arbitration to such

Model Arbitration Rules (CIMARI current atthe Base Date.

Rule2.1 which states:

"Arbitral proceedings are begun in respect of a dispute when one partyserveson the other a written notice of arbitration identifying the dispute and requiring him to agreeto the appointment of an arbitrator";

Footnote lxxlThe arbitration or legal proceedings are not an appeal againstthe decision of the Adjudicator but are a consideration of thedispute or difference as if no decision had been made by an Adjudicator.


418.1 -1 continued

and an arbitrator shall be an individual agreed bythe Parties or appointed bythe person named in the Appendix in accordance with Rule 2.3 which states:

"If the parties fail to agree on the name of an arbitrator within 14 days (or any agreed extension) after: (i) the notice of arbitration isserved,or (ii) a previously appointed arbitrator ceases to hold office for any reason, either party may apply for the appointment of an arbitratorto the person so empowered."

By Rule 2.5:

418-1 -2 Where WO or more related arbitral proceedings separate arbitration agreements, Rules 2.6,2.7 a

41B-1 a 3 After an arbitrator has been appointed either arbitration to the other Party and to the Arbitra under article 7A to be decided in the arbitral pr thereto.

reflects the true agreement made b valuations as may in his opinion b

ewhichshall besubmittedto him in thesame

41B.3 Subjecttoclause or shall be final and binding onthe Parties.

rty and to the Arbitrator):

418.4 -1 applytoth

itration Act 1996oranyamendmentthereof shall applytoany ntractwhereverthe same, orany partof it, shall beconducted. Iwl

onducted in accordance with the JCT 1998 edition of the

any dispute or difference shall be determined by legal proceedings

Footnote 1yyIItshould benotedthatthe provisionsofthe Arbitration Act 1996do not extendto Scotland. Where thesiteoftheWorksissituatedinScotlandthenthe forms issued by the Scottish Building Contract

Committee which contain Scots properlaw adjudication and arbitration provisions are the appropriate documents. The SBCC issues guidance in this respect.

84 @The Joint Contracts Tribunal Limited 2003 LAWA 98 f9/031

Part 5: Performance Specified Work [=I

Meaning of 42.1 The term 'Performance Specified Work' means work: Performance Specified Work 42.1 . I identified in the Appendix, and

42.1

42.1

-2 which is to be provided by the Contractor, and

-3 for which certain requirements have been predetermined and ar Contract Drawings, and

-4 in respect ofwhich the performance which the Employer re which the Contractor, by this Contract and subject to the CO achieve has been stated in the Contract Bills and these Bills

either information relating thereto sufficient to h such Performance Specified Work

a provisional sum in respect of the Perfor the information relating thereto as referr

42.1

or

Contractor's 42.2 Statement

Contentsof 42-3 Contractofs Statement

Time for 424 Contractor's Statement

Beforecarrying out any Performance Architecthhe Contract Administrator these Conditions as the 'Contractor's Contractor shall

unt ofthecommentsof

The Contractor's Stat Contractor's proposa any information whic

detail adequately to explain the nce Specified Work. It shall include by the Contract Bills or, where there , bythe instruction ofthe Architect/

drawn or schedule provided in reason information, drawi

ions; and, if applicable, shall be Contract Administrator can providethe

The Contractor's St vided to the Architecvthe Contract Administrator:

for its provision given in the instruction bythe Architect/the on the expenditure of a provisional sum for Performance

I be provided at a reasonable time before the Contractor intends Specified Work.

Arc hitect'd Contract

er receipt of the Contractor's Statement the Architect/the Contract if he is of the opinion that such Statement is deficient in form and/or explain the Contractor's proposalsforthe execution ofthe Performance

y notice in writing require the Contractor to amend such Statement so that the ArchitecthheContract Administrator not deficient. Acopyofthe ended shall be provided tothe Architecthhe Contract Administrator. mendment is required bythe Architecthhe Contract Administrator, the

ponsible in accordance with the Conditions for any deficiency in such tement and forthe Performance Specified Workto which such Statement refers.

Footnote ~ ~~~~~ ~

In] See Practice Note 25'Performance Specified Work' paragraphs26to 24foradescriptionofworkwhich is notto be treated as Performance Specified Work.

U WA 98 (9/03) @The Joint Contracts Tribunal Limited 2003 85

Architect's/ Contract Administrator's notice of deficiency in Contractofs Statement

Definition of provisional sum for Performance Specified Work

lnstructionsof the ArchiteMhe Contract Administrator on other provisional sums

Preparation of Contract Bills

Provisional sum for Performance Specified Work - errorspr omissions in Contract Bills

Variations in respect of Performance Specified Work

Agreement for additional Performance Specified Work

Analysis

Integration of Performance Specified Work

42-6 If the Architecvthe Contract Administrator shall find anything in the Contractor's Statement which appears to the Architecthhe Contract Administrator to be a deficiency which would adversely affect the performance required by the Employer from the relevant Performance Specified Work, heshall immediately give notice to thecontractor specifying the deficiency. Whether or not a notice is given by the Architecthhe Contract Administrator, the Contractor is responsible in accordance with the Conditions forthe PerformanceSpecified Work.

42.7 A provisional sum for Performance Specified Work means a sum provided in the Contract Bills for Performance Specified Work where the following information has been provided in the Contract Bills:

42.7 -1 the performance which the Employer requiresfrom such wor

42.7

42.7 .3 information relating thereto sufficientto have enabled t

-2 the location of such Performance Specified Work in the bu

allowance in programming for the execution of such P for pricing all preliminary items relevantto such Perfo

42.8 No instruction of the Architectlthe Contract Adminis n \ J tor Dursua to cla 4.3.1 on the expenditure of provisional sums included in the CO (, tra Qm ire Ferformance Specified Work except an instruction on the expen itu of pr v' ion I sum included in the Contract Bills for Performance Specified Work.

42.9 The inclusion of Performance Specified m u l l rk in the not be regarded as a departure from the method of preparatio o e Bills erred to in clause 2.2.2.1.

42.10 If in thecontract Billsthere clause 42.7.2 andlor 42.7.3,

42.11 Subject to clause dministrator may issue instructions nce Specified Work.

42-12 No instruction dministrator under clause 14.2 may require as a erformance Specified Work additional to that

endix unless the Employer and the Contractor otherwise which has been

42.13 Where the Cont idean analysis ofthe portion oftheTender Pricewhich

ut the Performance Specified Work, give any instructions of such Performance Specified Work with the design of the subject to clause 42-15, comply with any such instruction.

is of the opinion that compliance with any instruction ofthe Architecthhe injuriously affects the efficacy of the Performance Specified Work, he

of the relevant instruction specify by notice in writing to the such injurious affection. Exceptwherethe Architecthhe

Compliance with Architect's/ Contract

nistrator amends the instruction to remove such injurious affection, the ot haveeffectwithout thewritten consentofthe Contractorwhich consent sonably delayed orwithheld.

ension of time in respect of the Relevant Event stated in clause 25.4.15 an me shall not be given under clause 25.3 and clauses 26.1 and 28.2.2 shall not

haveeffectwhereandto the extentthatthecauseofthe progress ofthe Works having been delayed, affected or suspended is that the Architecthhe Contract Administrator has not received the Contractor's Statement by the time referred to in clause 42.4 or any amendment to the Contractor's Statement pursuanttoclause 42.5.

86 @The Joint Contracts Tribunal Limited 2003 LAWA 98 19/03)

Performance Specified Work - Contractor's obligation

42.17 -1 The Contractor shall exercise reasonable skill and care in the provision of Performance Specified Work provided that:

-1 -1 clause 42.17 shall not be construed so as to affect the obligations of the Contractor underthis Contract in regard to the supply of workmanship, materials and goods; and

.I -2 nothing in this Contract shall operate as a guarantee of fitness for purpose of the Performance Specified Work.

42.17 .2 The Contractor'sobligation under clause 42.17-1 shall in no way be modified by any service in respect of any Performance Specified Work which he h others and, in particular, the Contractor shall be responsibl such service had been undertaken bythe Contractor himself.

42-18 Performance Specified Work pursuant to clause 42 shall not be p Sub-Contractor under a Nominated Sub-Contract or by a Nomin contract of sale to which clause36 refers.

Nomination excluded


Code of Practice: referred to in clause 8-4-4

This is the Code of Practice referred to in clause 8.4.4.The purpose of the Code is to help in the fair and reasonable operation of the requirements of clause8-4.4.

The Architecflhe Contract Administrator and the Contractor should endeavour to agree the amount and method of opening up ortesting but in any case in issuing his instructions pursuant to clause8.4.4theArchitecthhe Contract Administrator is m o n s i d e r r the following criteria:

the need in the event of non-compliance t eitherthat it is uniqueand not Iikelytooc alternatively the extent of any similar no

the need to discoverwhether any non-com

or still to beconstructed;

failure of workmanship and/or materials s must take place; or where the non-complia is such as is to be statistically expected and compliance indicates an inherentweak testing the extent of which must depen detail concerned;

the significance of the non-complia it has occurred;

the consequence of any simila on users, adjoining prope Requirements;

the nature of the work in which

of the building, its effect any Statutory

f the Works by the Contractor;

re relevant of any sub-contractor rred to in paragraph 2-5 above or

otherwise; - \ > issued bya responsible bodywhich are materials or goods;

rryout,ortosecurethecarryingoutof,anytests nts or in an instruction of the Architecthhe Contract

e r aso fo h on-compliance when this has been established;

. al a vic that the Contractor has obtained in respect of the non-complying -Io &g&oods;

m u e d testing procedures;

establishing whether any similar non-

ative testing methods are available, the time required for and theconsequential

-15 anyotherrelevant matters.

U

88 @The Joint Contracts Tribunal Limited 2003 LA WA 98 19/03)

Appendix

Clause etc.

Fourth recital and 31

Fifth recital

Articles 7Aand 78 41 B 41C

1 e 3

1-3

1.11

Subject

Construction Industry Scheme (CIS)

CDM Regulations

Dispute or difference - settlement of disputes

Base Date

Date for Completion

Electronic data interchange

Employer at Base Date *is a 'contractor'/is not a 'contractor' forthe purposes ofthe Act andthe

ental Provisionsfor EDI

ociation Standard EDI

Clause 1Aof theVATAgreement *applies/does not apply 1x1

15.2 VATAgreement

Clause 19.1-2 *applies/does not apply

17-2

19.1-2

21.1-1

Insurance *may be requiredbs not required

Amountof indemnityforanyone occurrence or series of occurrences arising out of one event

f laaal *(Delete as applicable)

[aaal If the indemnityisto be for anaggregateamount and notfor anyone occurrenceorseriesofoccurrences the entryshould makethisclear. IxlClause 1Acanonlyapply where thecontractoris

satisfied at the date this Contract is entered into that his outputtaxonallsuppliestothe Employer underthis Contractwill beateithera positiveorazerorateoftax.

This foornore repeats footnote [XI for clause 152.


Clause etc. Subject

22.1 lnsuranceof the Works - alternative clauses

"22A, 22B.II22C*2 Percentage to cover professional fees

22A.3.1

220

220.2

Annual renewal date of insurance as supplied by Contractor

lnsurancefor Employer's loss of liquidated damages - clause 25-4.3

22FC.1 Joint Fire Code

"Clause 22AJClause 22BKlause 22C applies (See footnote ICCI to clause 22)

Insurance "may be require-

d thatthe Works

22A applies these entries are mation supplied bythe

22FC.5 if any, of compliance with

23.1.1 Date of Possession

23*1-2,25*4-14,26-1

24-2

r;

Liqu(atv lasf6ed damages

28.2.2

U

Clause 23.1.2 'appliesldoes not apply

Period of deferment if it is to be less than 6 weeks is

at the rate of

f Per

+Delete as applicable.

@The Joint Contracts Tribunal Limited 2003 LAWA 98 19/03}

Clause etc.

30.1 -3

30-3-1

I ,

30-3.2

30.4*1.1

35.2 I

, 37 I , I .

39.8

40.1 -1 -1

Subject

Dates of issue of Interim Certificates (if nonestated, Interim Certificates are to be issued at intervals not exceeding one month up to the date of Practical Completion orwithin one month thereafter and the first Interim Certificate is to be issued within one month of the Date of Possession)

The first date is:

and thereafter on the same date in each month adjusted to the nearest working day in that month 1aaa.11

Listed items -not uniquely identified

Listed items -uniquely identified

30.3-2 does not apply

Retention Percentage (if lessthan 5 percent) [bbbi

Work reserved for Nominated

rule 3: Base Month

Fluctuations

Formula Rules

rule 3: Non-Adjustable Element

(not to exceed 10%)

rules 10and 30(i): Part I/Part I1 [dddi of Section 2 of the Formula Rules is to apply

[ccclDeletealternative not used.

adjustment (Part1 -Work Category Method or Partll- WorkGroupMethod) hasbeenstatedinthe documents issued to tenderers.

aallThefirstdateshouldnot bemorethanonemonth ldddlStrikeoutaccording towhichmethodofformula

Interim Certificates be issued on the last day ofeach monthconsider inserting "the lastdayof- (inseflrnonth)and thereafterthe last day ineach month adjusted to the nearest working day in the month".

Ibbbl The percentagewill be 5 percent unless a lower rate is specified here.


Clause etc. Subject

41A-2 Adjudication - nominator of Adjudicator (if no nominator is selected the nominator shall be the President or a Vice-President of the Royal Institute of British Architects; if the nominatorfailsto nominate, the nominator shall be one of the other listed nominators selected by the Party requiring the reference to adjudication)

418.1

42-1-1

Arbitration - appointor of Arbitrator (if no appointor is selected the appointor shall be the President or a Vice-President of the Royal Institute of British Architects)

Performance Specified Work

President or a Vice-President or Chairman or aViceChairman: *Royal Institute of British Architects *The Royal Institution of Chartered

*Construction Confederation 'National Specialist Contractors Council

Surveyors

Limited

*Delete all but o

V *DPnPA Id nti b o o na eparatesheeteach ite of rf rma ce pecifiedworktobe Dro k W Q d c t o r 'ded b and insert the

the Contract Bills lzri

I221 See Practice Note 25'Performance Specified Work' paragraphs2.6to2.8foradescriptionofworkwhich is not to be treated as Performance Specified Work.

This footnoterepeats footnoteInl forclause 42.

U Footnote

92 @The Joint Contracts Tribunal Limited 2003 LA WA 98 (WO31

Annex 1 to Appendix: Terms of Bond agreed by the JCT and the British Bankers' Association

See clause 30.3: "Bond in respect of payment for off-site materials and/or goods"

Bond in respect of payment for off-site materials and/or goods

1 THE parties to this Bond are:

whose registered office is at

2 The Employer and ('the Contractor')

have agreed to ent r building works ('the Works')

('the Contract').

ions of the Contract as summarised below but with which the

the listed items'), has been included as part ofthe Contract, before jacent to the Works; and

has agreed to insure the listed items against lossor damage fortheirfull

the transfer of the property in the items

paid to thecontractor in respect of the

the interests of the Employer and the

they are delivered to, or adjacent to, the Works; and

to or adjacentto the Works.

The Employershall in making any demand provide to thesuretya Notice of Demand in the w o r m of the Schedule attached hereto which shall be accepted as conclusive evidence for all

purposes underthis Bond.Thesignatureson any such demand must beauthenticated bythe Employer's bankers.

I. I

Annex 1 to Appendix: Terms of Bond agreed by the JCT and the British Bankers' Association

See clause 30.3: "Bond in respect of payment for off-site materials and/or goods"

Bond in respect of payment for off-site materials and/or goods

1 THE parties to this Bond are:

whose registered office is at

2 The Employer and ('the Contractor')

have agreed to ent ractfor building works ('the Works')

ions of the Contract as summarised below but with which the

to include in the amount stated as due in Interim Certificates

or has agreed to insure the listed items against loss or damage for their full a policy of insurance protecting the interests of the Employer and the

ring the period commencing with the transfer of the property in the items tor until they are delivered to, or adjacent to, the Works; and

listed items which have not been delivered to or adjacentto the Works.

purposes underthis Bond.The signatures on any such demand must be authenticated bythe Employer's bankers.

I LA WA 98 (9/03) @The Joint Contracts Tribunal Limited 2003 93

5

6

7

8

9

10

11

12

The Surety shall within 5 Business Days after receiving the demand pay to the Employer the sum so demanded. 'Business Day' means the day (other than a Saturday or a Sunday) on which commercial banks are open for business in London.

Payments due underthis Bond shall be made notwithstanding any dispute between the Employer and the Contractor and whether or not the Employer and the Contractor are or might beunderanyliabilityone totheother. Paymentbythesuretyunderthis Bondshall be deemed avalid payment for all purposes of this Bond and shall discharge the Surety from liability to the extent of such payment.

The Surety consents and agrees that the following and done without notice to or consent of the Surety a changing or releasing the Surety from its obligations Surety hereunder shall not in anyway be affected

(a) waiverbytheEmployerofanyoftheterms,pr agreements of the Contractor or any failure to the Contractor;

(b) any modification or changes to the Contract;a d/ Kz/O " (c) the granting of an extension of time to the Contkctorw&&ffebting the termsof

clause 9(bl below.

The Surety's maximum aggregate 1.

The obligations of the Surety U

(a) thedateon red to or adjacent to the Works as

e upon whichever is the earlier of

bythe Surety in writing on or before such earlier date.

The Bond is nodtrankferable obssibnable without the priorwritten consent of the Surety. Such written CO sent 'I1 not U easonablywithheld. t-3'

ions of this Bond nothing in this Bond confers or purports fits terms on any person who is not a party to it.

nstrued in accordance with the laws of England and

*Thevaluestated in the Contractwhich theEmployer considerswill besufficient tocover him formaximum payments to the Contractor forthe listed items that will havebeenmadeand notdeliveredtothesiteat any one time.

94 @The Joint Contracts Tribunal Limited 2003 LAWA 98 (9103)

IN WITNESS hereof this Bond has been executed as a Deed by the Surety and delivered on the date below:

EXECUTED as a Deed by:

for and on behalf of the Surety:

EXECUTED as a Deed by:


Schedule to Bond (clause 4 of the Bond)

Notice of Demand

Date of Notice:

being the amount stated as due in re due in an Interim Certificate(s) for pa the Employer but such listed items h

o the Contractor by nt to the Works.

Address for payment:

This Notice is si ns who are authorised by the Employer to act for

naturesto be authenticated by the Employer's bankers

96 @The Joint Contracts Tribunal Limited 2003 LA WA 98 19/03] I

Supplemental Provisions (the VAT Agreement)

Interim payments - addition of VAT

Alternative provisions to clauses 1.1 to 1.2.2 inclusive

Written assessment by Contractor

1

1A-1

1A.2

1 A.3

1 A.4

1.1

The following are the supplemental provisions (the VAT Agreement) referred to in clause 15.1 of the Conditions:

The Employer shall pay to the Contractor in the manner hereinafterset out anytax properly chargeable bythe Commissioners on the Contractor on the supply to the Employer of any

supplies within the meaning of Regulation 93 of thevalue A any amendment or re-enactmentthereof.

Whereit isstated in the Appendix pursuanttoclause this Agreement applies, clauses 1.1 to 1.2-2 inclusive any notice issued under clause 1A.4 hereof becomes

1.3 to8ofthisAgreement remain in full force and effe

te the Contractor

varied rate comes into effect, send to the E Administrator, the necessary ame notice shall then take effect as so a

he Architecthhe Contract ritten notice and that

e recovery by the Contractor, as tax properly chargeable by the

t the rate given in the aforesaid 1 shall be shown on each Interim

Architecthhe Con unt shall be paid by the Employertothe as the case may be within the period for (Interim Certificates) or clause 30.8 (Final

Certificate) as a ppl

ontractor shall not laterthan the date forthe issue of each

spective values (less any Retention Percentage applicable

elevant time of supply under Regulation 93 ofthevalue sand servicesforwhich the Certificate is being issued and

lations 1995, on the Contractorat

tax (Category (i)) and

ates of tax other than zero (Category (ii)).

all alsospecifythe rateorratesoftaxwhich arechargeableonthose in Category (ii), and shall state the grounds on which he considers such

U


~~~~~- ~~~~~~ ~~

97

Employer to calculate amount of tax due - Employer's right of reasonable objection

1.2 -1 Upon receipt of such written provisional assessment the Employer, unless he has reasonable grounds for objection to that assessment, shall calculate theamount of tax due by applying the rate or rates of tax specified by the Contractor to the amount of the assessed value of those supplies included in Category (ii) of such assessment, and remit the calculated amount of such tax, together with the amount of the Certificate issued by the Architect/the Contract Administrator, to the Contractor within the period for payment of certificates set out in clause 30.1.1.1 of the Conditions. '

1.2 -2

Written final 1-3 -1 statement - VAT liability of Contractor - recoveryfrom Employer

If the Employer has reasonable grounds for objection to the provisional assessment he shall within 3 working days of receipt of that assessment so notify the Contractor in writing setting out those grounds. The Contractor shall within 3 working days of receipt

withdraws the assessment i underclause 1.2-1 ofthisAg Contractor so confirms then Employer in respect of the

authenticated receipt under clause 1.4 ofthis Agreeme

Whereclause 1Aisoperatedclause 1.3onlya

Administrator. After the issue of the Certific underclause 17-4oftheConditionstheCon

goods and services forwhich certific chargeable on the Contractor at

-1 a zero rate of tax (Category ( i d d A\ -2

andshall issuesuch final

any rate or rates of tax ot

oftaxwhich arechargeableonthe nd shall state the grounds on which he

amount of tax already received by the Contractor use 1.4 ofthis Agreement have been issued.

1-3 .2 The state is Agreement may be issued either before or after

statement the Employer shall, subject to clause 3of this mount oftax due by applying the rate or rates of tax

esupplies included in Category (ii) of the ng therefrom the total amount of tax already received by the the statement, and shall pay the balance of such tax to the

s that the total amountof tax specified in the final statement as exceedstheamountoftaxcalculated underclause 1.3-3ofthis

4ofthisAgreementshowingthecorrection oftheamountsforwhicha receipt ts have previously been issued by the Contractor.

ofclause 1 orclause1Aofthis t of the kind referred to in taining the particulars

If, when the Employer is obliged to make payment under clause 1.2 or 1.3 of this Agreement, he is empowered under clause 24of the Conditions to deduct any sum calculated at the rate stated in the Appendix as liquidated and ascertained damagesfrom sums due or to become due to the Contractor under this Contract he shall disregard any such deduction in calculating the tax due on the value of goods and services supplied to which he is obliged to addtaxunderclause 1-2or 1.3ofthisAgreement.

disregarded


2.2

2.3

Employer's right 3-1 tochallenge tax claimed by Contractor

Dischargeof Employer from liability to peytax to the Contractor

3-2

3.3

4

The Contractor when ascertaining the respective values of any supplies of goods and services forwhich certificates have been or will be issued undertheconditions in orderto prepare the final statement referred to in clause 1.3 of this Agreement shall disregard when stating such values any deduction by the Employer of any sum calculated at the rate stated in the Appendixas liquidated and ascertained damages under clause 240f theconditions.

Whereclause 1Aisoperated the Employer shall paythetaxtowhichthatclause refers notwithstanding any deduction which the Employer may be empowered to make under clause 24 of the Conditions from the amount certified by the Architect/the Contract Administrator in an Interim Certificate or from any balance certified bytheArchitect/the Contract Administrator as due to the Contractor under the Final Certificate.

lfthe Employer disagrees with the final statement issued

Commissioners for such decision. If the Employer disa

instructions of the Employer make all such appeals Commissioners as the Employer shall request.The

Where, before any appeal from the deci amountofthetaxallegedto bechargea

Within 28daysofthefinal adjudic Commissioners ifthe Employerd such decision to

use 1.3.4 ofthis Agreement

or 1.3.4of this Agreement orwhere

the Contractor in accordance with the VAT

ices bythe Contractor underthiscontractthe itional payment bythe Employertothe er, as the case may be. The provisions of clause

Awards in dispute procedures

anydisp eo nce is referred to an Arbitrator appointed pursuant to article 7Aorto

rocee I sva ies the amount certified for payment for goods or servicessupplied by the ontractor 0th EmployerunderthisContractorisanamountwhich oughtto have been so

ce 'fied b wa not so certified, the provisions of this Agreement shall so far as relevant and

ocee gs, then, insofar as any payment awarded in such arbitration or legal

yto any such payments. /--7 ~ r ~ i t n f 1 ~ ~ ~ r t i c l e 7 A ~ h a l l provi ion t 'sAgr notapplytoanymattersto bedealtwith underclause3of

excl ded n ithstanding any provisions to the contrary elsewhere in the Conditions the Employer

be obliged to make any further payment to the Contractor under the Conditions if is in default in providing the receipt referred to in clause 1.4ofthis Agreement.

rovidedthatclause7ofthis Agreementshall onlyapply where:

7 -1 the Employer can show that he requires such receipttovalidate any claim for creditfor tax paid or payable under this Agreement which the Employer is entitled to make to the Commissioners, and

LA WA 98 (9/03) @The Joint Contracts Tribunal Limited 2003 99 I

7 .2 the Employer has

paid tax in accordance with the provisional assessment of the Contractor under clause 1 ofthis Agreement unless he has sustained a reasonable objection under clause 1.2 of this Agreement; or

paid tax in accordance with clause 1A of this Agreement.

VAT on determination

8 Whereclause 27.4 of the Conditions becomes operative there shall be added to the amount allowable or payable to the Employer in addition to the amounts certified by the Architectlthe Contract Administrator any additional tax that the Employer has had to pay by reason of

would have paid if the determination had not occurred. determination under clause 27 of the Conditions as compared


Annex 2 to the Conditions: Supplemental Provisions for EDI (clause 1.11)

The following are the Supplemental Provisionsfor EDI referred to in clause 1-1 1 of the Conditions.

1 The Parties no later than when there isa binding contract between the Employerand the Contractor shall have entered into the Electronic Data Interchange Agreement identified in

. I except where expressly provided for in these provisions, not Agreement shall override or modify the application or inter

.2 thetypes and classes of communication to which 'Data') and the persons between whom the Data s

e 3 the Adopted ProtocoVEDI Message Standards and are as stated in the Contract Documents or as subs the Parties;

-4 where the Contract Documents require tion to which the EDI Agreementapplies to be in writing i accordancewith the EDI Agreeme writing in accordancewith the re1

.4 -1 any determination of the e

ce of his obligations underthis

-4 .3 theFinalCerti

.4 -4 anyinvoki eduresapplicable underthisContractto the

e 4 -5 anyagree ies amending the Conditions or these provisions.

ractto the resolution of disputes or differences

Footnote *The EDI Association Standard EDI Agreement refers to an Adopted Protocol and User Manual; the European Model EDI Agreement refers to EDI Message Standards and a Technical Annex. Delete whichever is not applicable.


Local Authorities With Approximate Quantities

This reprint incorporates the following amendments.

A Amendment 1, June 1999 D Correctionsmadeand Construction Industry Schmne incotporetedin reprintdated (as) May2001 (incorporated May20011

Minorcorrestlonatowording. 1. Recltab spelUng,upperandlowerceseand

Fourth recital emended punctuation 2. Clause30 clause 5.4.2

newclause 30A inserted clause 19.4.2.3 3. Clause31 clause20.3.1

redrafted clause222 4. Appendix1 clause 25.4.61

entryon Fourth recitalamended clause264.2 clause 2764.2

B AmendmentZJanuaw2000 Sundry amendments (incorporated Mey2001)

1. clausel.12

2. Clause301.3

3. Cbuse4lA

newclause inserted

amended

clause 41A.5.5.2 amended newclause 41A68 inserted newfootnoteluu.11 inserted

entryon30.1.3 amended newfootnotelaaall inserted entryon 41A.Zamended

Fluctuation clauses

4. Appendu

1. Statutoryrekrences VAT references updated

H Amendrnent5.July2003 Construction Skilh Certification Scheme (incorporated September 2003)

1. Clause8 clause 8.1.4 renumberedas clause

newclauseE1.4 inserted

newentryon 22FC.5 inserted

/ 7 Previous p a g e is blank

104 @The Joint Contracts Tribunal Limited 2003 LAWA 98 (9/031

For works which are to be carried out in Northern Ireland the Adaptation Schedule for use with this form of contract is available from the Royal Society of Ulster Architects, 2 Mount Charles, Belfast E l 7 1NZ.

Dated -

Standard Form of Building Contract 1998 Edition

Published for the J 1-3 Dufferin Street

@The Joint Contracts

All rights reserve

U

Issued by The Joint Contracts Tribunal Limited

Members Association of Consulting Engineers Limited British Property Federation Limited Construction Confederation Local Government Association National Specialist Contractors Council Limited Royal Institute of British Architects The Royal Institution of Chartered Surveyors The Scottish Building Contract Committee