SULTANATE OF OMAN
STANDARD DOCUMENTS
FOR
ELECTRICAL AND MECHANICAL WORKS
(INCLUDING ERECTION ON SITE)
First Edition
April 1987
TABLE OF CONTENTS
FORM OF TENDER ……………………………………..……………………………………. 3
APPENDIX TO FORM OF TENDER ………………………………………………………… 5
FORM OF AGREEMENT …………………………………………………………………….. 7
APPENDIX A TO FORM OF AGREEMENT ………………………………………………..
9
APPENDIX B TO FORM OF AGREEMENT ………………………………………………..
10
STANDARD CONDITIONS OF CONTRACT
- TABLE OF CONTENTS …………………………………………………………………….
12
- INDEX ……………………………………………………………………………………….
20
- STANDARD CONDITIONS ………………………………………………………………..
28
ANNEXURE A –
FORM OF TENDER BOND ……………………………………………………………….
107
ANNEXURE B
FORM OF ADVANCE PAYMENT BOND ……………………………………………….
108
ANNEXURE C
FORM OF PERFORMANCE BOND ………………………………………………………
2
109
SHORT DESCRIPTION OF WORKS _______________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
____________________________________________________________________________
FORM OF TENDER
(Note: The Appendix form part of the Tender. Tenderers are required to fill up all the blank spaces
in this Form of Tender and Appendix).
TO:
CHAIRMAN OF THE TENDER BOARD
Gentlemen,
1. After having examined the Instructions to Tenderers, Outline Drawings, Standard
Conditions of Contract, Outline Specification and Bill of Quantities/Schedule of Rates*
and Prices for the execution of the above named Works, we, the undersigned, offer to
execute, complete and maintain the whole of the said Works in conformity with the said
Instructions, Outline Drawings, Standard Conditions of Contract, Outline Specification,
and Bill of Quantities/Schedules of Rates* and Prices for the sum of Rials Omani
_________________________________________________________________________
_______________________________________________________________________
(RO.
______________________________)
and/or
the
sum
of
_________________________________________________________________________
____________________________________________ [___________________]
or such other sum as may be ascertained in accordance with the said Conditions.
2. We undertake, if our Tender is accepted, to commence the Works within _________ days
of receipt of the Engineer’s order to commence, and to complete and deliver the whole of
the Works comprised in the Contract within ________ days calculated from the last day of
the aforesaid period in which the Works are to be commenced/or by the ______________
day of _____ 20__.
3. If our Tender is accepted, we will obtain the undertaking of a locally registered Bank (as
required in the Sultanate of Oman Standard Conditions of Contract for Electrical and
Mechanical Works, 1st Edition) to be jointly and severally bound with us in the sum of 10
per cent of the Contract Sum for the due performance of the Contract under the terms of a
Performance Bond as attached and to be approved by you.
4. We agree to abide by this Tender for a period of 90 days from the date fixed for receiving
the same and it shall remain binding upon us and may be accepted at any time before the
expiration of that period.
5. In the event of our Tender being accepted and until a formal Agreement is prepared and
executed, this Tender together with your written acceptance thereof, shall constitute a
binding obligation upon us.
______________________________________________________________________________
*delete where not applicable
3
6. We understand that you are not bound to accept the lowest or any Tender you may receive.
7. We acknowledge receipt of the following circular letters:
Reference number of letter
Date
_____________________________
_____________________________
_____________________________
_____________________________
_____________________________
_____________________________
___________________
___________________
___________________
___________________
___________________
___________________
and confirm that we have taken account thereof in our Tender.
8. We confirm that we have an Agent(s) for the provision of Spare Parts, Maintenance
services and repair who are:
Name __________________________________________________________________
of Address ____________________________________________________________
_____________________________________________________________________
and whose Agency Registration Number is __________________________________
dated ___________________________.
Name __________________________________________________________________
of Address ____________________________________________________________
_____________________________________________________________________
and whose Agency Registration Number is __________________________________
dated ___________________________.
9. We confirm that in accordance with Article 17 of the Tender Law and Article 35 of the
Regulations of Sultani Decree No. 86/84 that the following persons/shareholders of the
company have an interest in the Tender:
Name
Interest
________________________________
_______________________________
________________________________
_______________________________
________________________________
_______________________________
________________________________
_______________________________
________________________________
_______________________________
________________________________
_______________________________
________________________________
_______________________________
______________________________________________________________________________
*delete where not applicable
4
APPENDIX TO THE FORM OF TENDER
CLAUSE
Number of Drawings
5.2.2(b)
_________________________
Receipt of Operating &
Maintenance Instructions
5.7
_____ days/months* before
Taking Over of the Works
Time for Completion
7.1
_____________ days/months*
and or by the day of _______
________________________
Amount of Performance Bond
9.1
RO. _____________________
_______________being5% of
the Contract Sum.
Programme to be Furnished
12.1
____ days/months* following
Engineer’s order to commence
the Works.
Advance Detailed Progress
of Plant Schedule
12.4
____ days/months* following
Engineer’s order to commence
the Works.
Indirect or Consequential Damage
16.1
RO. _____________________
Insurance of the Works
17.1
RO. _____________________
Minimum Amount of Third Party
Insurance
17.2(b)
RO. _____________________
Amount of Penalty per day
31.1
RO. _______________ per day
Amount of Penalty per day
for Prolonged Delay
31.2
RO. _______________ per day
Amount of Compensation per day
of Delay for Extended
Engineering Services
31.3
RO. _______________ per day
Defects Liability Period
33.1
___________ months/year(s)*
Percentage for Adjustment of
PC Sums contained within
Provisional Sums
39.4(b)
_________________ per cent
Yearly Cash Flow: *
19
19
19
19
19
19
----------------------------------------------------------------------------------------------------------------------Percentage of
Contract Price
%
%
%
%
%
%
______________________________________________________________________________
*delete where not applicable
5
Dated this _______________________ day of ________________________________ 20 _____.
Signature ___________________________________ in capacity of ________________________
Duly authorized to sign Tenders for and on behalf of _____________________________________
_______________________________________________________________________________
(IN BLOCK CAPITALS)
Address _______________________________________
Witness ____________________
______________________________________________
____________________
____________________
______________________________________________
6
Occupation _________________
FORM OF AGREEMENT
THIS AGREEMENT made this _____________ day of __________________ 20 . BETWEEN
_____________________________________________________________________________
of ________________________________________________________________(hereinafter
called “the Employer”) of the one part and ___________________________________________
_______________________________________________________________________________
____________________________________________________________________________
(Company Registration Number) ___________________________________________________
(hereinafter called “the Contractor”) of the other part.
WHEREAS the Employer is desirous that certain works should be executed viz:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_________________________________________________________________________ and has
accepted a Tender by the Contractor as summarized at Appendix B “Summary of Contract Sum”
for the execution, completion and maintenance of such Works.
NOW THIS AGREEMENT WITNESSETH as follows:
1. In this Agreement, words and expressions shall have the same meanings as are respectively
assigned to them in the Standard Conditions of Contract hereinafter referred to.
2. The following documents shall be deemed to form and be read and construed as part of this
Agreement viz:
The said Tender
The Standard Conditions of Contract
The Outline Drawings
The Outline Specification
The Bill of Quantities*
The Schedule of Rates and Prices*
The Tender Board/Ministry Letter of Acceptance*
______________________________**
______________________________
______________________________
______________________________
______________________________
______________________________
______________________________
______________________________
3. In consideration of the payments to be made by the Employer to the Contractor as
hereinafter mentioned the Contractor hereby covenants with the Employer to execute and
complete the Works and to remedy defects therein in conformity in all respects with the
provisions of the Contract.
______________________________________________________________________________
*delete where not applicable
**other additional documents as required
7
4. The Employer hereby covenants to pay the Contractor in consideration of the execution,
completion of the Works and the remedying of defects therein the Contract Price at the
times and in the manner prescribed by the Contract and limited by the Cash Flow contained
in the Appendix to the Form of Tender.
IN WITNESS whereof the parties hereto have hereunder set their respective hands and
seals on the day and year first above written.
______________________________
Signed by a duly authorized Signatory
for and on behalf of the Government
of the Sultanate of Oman
______________________________
Witness
______________________________
Signed by a duly authorized Signatory
for and on behalf of the Contractor
______________________________
Witness
Ratified in accordance with the Sultani Decree No. 48/76, as amended, on the ____ day of
________ 20____.
_____________________________________
THE DEPUTY PRIME MINISTER
FOR FINANCIAL & ECONOMIC AFFAIRS
8
_______________________
UNDERSECRETARY FOR
FINANCIAL AFFAIRS
MINISTRY OF FINANCE
AND ECONOMY
APPENDIX ‘A’ TO FORM OF AGREEMENT
CONSTITUTION OF COMPANY
1. INTERNATIONAL COMPANIES
The Contractor shall prior to the signature of the Form of Agreement submit notarially
authenticated copies of the original documents defining the constitution of the Company,
powers of attorney and other relevant documents. In the case of a Partnership or Firm these
documents shall be dully authenticated extracts from the partnership deed or other documents.
These documents shall also show by what persons and what manner contracts may be entered
into and what persons are directly responsible for the due execution of such contracts and can
give valid receipts together with specimens of their signatures.
An overseas power of attorney of a foreign signatory to the Tender shall have been endorsed
by an approved Oman authority (such as an Embassy).
A Contractor intending to undertake the Contract jointly with or in association with another
firm or firms including firms or persons acting in an advisory or consultative capacity shall
submit a statement showing how the contract commitment will be undertaken and the exact
relationship between each of the parties.
2. OMANI COMPANIES
The Contractor shall prior to the signature of the Form of Agreement submit copies of the
official Company Registration Particulars, i.e. partnership, limited liability, joint venture, joint
stock, together with the commercial registration number. These documents shall also show by
what persons are directly responsible for the due execution of such contracts and can give
valid receipts together with specimens of their signatures.
9
APPENDIX ‘B’ TO FORM OF AGREEMENT
SUMMARY OF CONTRACT SUM
(FOR USE WITH VALUES IN RIALS OMANI ONLY)
DESCRIPTION
R.O.
BILL NO. 1
2
3
4
5
6
7
8
9
10
11
12
13
..
..
..
..
..
..
____________________
____________________
____________________
____________________
____________________
____________________
____________________
____________________
____________________
____________________
____________________
____________________
____________________
____________________
____________________
____________________
____________________
____________________
____________________
____________________
TOTAL CONTRACT SUM
RO
____________________
- Value of Plant
- Value of Shipping/Insurance
- Value of Erection/Installation
- Value of Building and Civil
Engineering Works
- Value of Provisional Sums*
- Value of Contingencies*
____________________
____________________
____________________
____________________
____________________
____________________
____________________
TOTAL
RO
____________________
- Value of Overseas Portion*
- Value of Local Portion*
____________________
____________________
____________________
RO
____________________
______________________________________________________________________________
*delete where not applicable
TOTAL
10
APPENDIX ‘B’ TO FORM OF AGREEMENT
SUMMARY OF CONTRACT SUM
(FOR USE WITH VALUES IN RIALS OMANI AND/OR OTHER CURRENCIES)
DESCRIPTION
R.O.
BILL NO. 1
\
2
3
4
5
6
7
8
9
10
11
12
13
..
..
..
..
..
**
____________________
____________________
____________________
____________________
____________________
____________________
____________________
____________________
____________________
____________________
____________________
____________________
____________________
____________________
____________________
____________________
____________________
____________________
_________________
_________________
_________________
_________________
_________________
_________________
_________________
_________________
_________________
_________________
_________________
_________________
_________________
_________________
_________________
_________________
_________________
_________________
____________________
_________________
TOTAL CONTRACT SUM
RO
____________________
**
_________________
- Value of Plant
- Value of Shipping/Insurance
- Value of Erection/Installation
- Value of Building and Civil
Engineering Works
- Value of Provisional Sums*
- Value of Contingencies*
____________________
____________________
____________________
_________________
_________________
_________________
____________________
____________________
____________________
_________________
_________________
_________________
____________________
_________________
TOTAL
RO
____________________
**
_________________
- Value of Overseas Portion*
- Value of Local Portion*
____________________
____________________
_________________
_________________
____________________
_________________
RO
**
____________________
_________________
______________________________________________________________________________
*delete where not applicable
**insert type of currency as applicable
TOTAL
11
STANDARD CONDITIONS OF CONTRACT
TABLE OF CONTENTS
1.0
DEFINITIONS AND INTERPRETATIONS ....................................................................... 28
1.1
Definitions ............................................................................................................................ 28
1.2
Interpretation......................................................................................................................... 33
1.3
Singular and Plural ............................................................................................................... 33
1.4
Headings or Notes................................................................................................................. 33
1.5
Cost ....................................................................................................................................... 33
2.0
ENGINEER AND ENGINEER’S REPRESENTATIVE ..................................................... 33
2.1
Engineer’s Duties.................................................................................................................. 33
2.2
Engineer’s Representative .................................................................................................... 33
2.3
Engineer’s Power to Delegate............................................................................................... 34
2.4
Engineer to Act Fairly........................................................................................................... 34
3.0
ASSIGNMENT AND SUB-LETTING ................................................................................ 34
3.1
Assignment ........................................................................................................................... 34
3.2
Sub-letting............................................................................................................................. 35
4.0
CONTRACT DOCUMENTS ............................................................................................... 35
4.1
Languages ............................................................................................................................. 35
4.2
Compliance with Laws and Governing Law ........................................................................ 35
4.3
Documents mutually explanatory ......................................................................................... 36
5.0
DRAWINGS AND SPECIFICATIONS .............................................................................. 36
5.1
Outline Drawings and Outline Specification ........................................................................ 36
5.2
Drawings and Specification – Approval Procedure .............................................................. 36
5.3
Approved Drawings .............................................................................................................. 38
5.4
Inspection of Drawings ......................................................................................................... 38
5.5
Foundation Drawings............................................................................................................ 39
5.6
Errors in Drawings ................................................................................................................ 39
5.7
Operating and Maintenance Instructions .............................................................................. 39
6.0
MISTAKES AND ERRORS ................................................................................................ 40
6.1
Mistakes and Information ..................................................................................................... 40
6.2
Errors by Contractor ............................................................................................................. 40
6.3
Errors by Engineer ................................................................................................................ 41
7.0
OBLIGATIONS OF THE CONTRACTOR......................................................................... 41
12
7.1
General Obligations .............................................................................................................. 41
7.2
Setting Out ............................................................................................................................ 42
7.3
Training of Employer 's Personnel........................................................................................ 42
7.4
Operation of Plant ................................................................................................................. 43
8.0
AGREEMENT ANDPROCEDURES .................................................................................. 43
8.1
Form of Agreement ............................................................................................................... 43
8.2
Government Procedure ......................................................................................................... 43
8.3
Fixed Price ............................................................................................................................ 43
9.0
BONDS ................................................................................................................................. 44
9.1
Performance Bond ................................................................................................................ 44
9.2
Advance Payment Bond........................................................................................................ 44
10.0
CONTRACT DATA ......................................................................................................... 44
10.1
Site Data............................................................................................................................ 44
10.2
Sufficiency of Tender ....................................................................................................... 45
10.3
Errors in Computing Tender ............................................................................................. 45
11.0
ENGINEER’S DECISIONS ................................................................................................. 45
12.0
PROGRAMME................................................................................................................. 46
12.1
Programme to be Furnished .............................................................................................. 46
12.2
Procedure and Method ...................................................................................................... 46
12.3
Progress of Works............................................................................................................. 46
12.4
Advanced Detailed Progress of Plant Schedule ................................................................ 46
13.0
CONTRACTORS SUPERINTENDENCE ...................................................................... 48
13.1
Contractor's Representative .................................................................................................. 48
13.2
Contractor‘s Employees .................................................................................................... 48
13.3
Notice of Objection........................................................................................................... 48
13.4
Proficiency of Languages ................................................................................................. 49
14.0
EQUIPMENT SERVICES FACILITIES ......................................................................... 49
14.1
Contractor's Equipment ........................................................................................................ 49
14.2
Safety and Security ........................................................................................................... 49
14.3
Electricity, Water and Gas ................................................................................................ 49
14.4
Employer's Equipment ...................................................................................................... 50
14.5
Opportunities for other Contractors .................................................................................. 50
15.0
LIABILITY FOR ACCIDENTS AND DAMAGE .......................................................... 50
13
15.1
Care of the Works ............................................................................................................. 50
15.2
Damage to Works caused by Excepted Risks ................................................................... 51
15.3
Damage to Persons and Property before Taking Over ...................................................... 51
15.4
Damages to Persons and Property after Taking Over ....................................................... 52
15.5
Damage to Persons and Property from a cause occurring before Taking Over ................ 52
15.6
Claims for Damage to Persons or Property....................................................................... 53
15.7
Accident or Injury to Workmen ............................................................................................ 53
15.8
Damage to Services on Site .............................................................................................. 54
15.9
Urgent Repairs .................................................................................................................. 54
16.0
DAMAGES AND LOSS ...................................................................................................... 55
16.1
Indirect or Consequential Damage ................................................................................... 55
16.2
Mitigation of Loss............................................................................................................. 55
17.0
INSURANCES, REGULATIONS AND PATENT RIGHTS .............................................. 55
17.1
Insurance of Works ............................................................................................................... 55
17.2
Third Party Insurance........................................................................................................ 56
17.3
Damage to Persons and Property ...................................................................................... 57
17.4
Accident or Injury to Workmen ........................................................................................ 58
17.5
Notification by Contractor ................................................................................................ 58
17.6
Policies and Local insurances ........................................................................................... 59
17.7
Remedy on Contractor ‘s Failure to Insure ........................................................................... 59
18.0
LAWS AND REGULATIONS ........................................................................................ 59
18.1
Compliance with Laws and Regulations .......................................................................... 59
18.2
Assistance concerning Laws and Regulations .................................................................. 59
19.0
PATENT RIGHTS................................................................................................................ 60
19.1
Patent Rights ......................................................................................................................... 60
19.2
Claims in respect of Patent Rights ........................................................................................ 60
19.3
Employer’s Warranty for Patent Rights................................................................................ 60
20.0
GENERAL OBLIGATIONS OF THE EMPLOYER........................................................... 60
20.1
Access to and Possession of the Site .................................................................................... 60
20.2
Foundations........................................................................................................................... 61
20.3
Authority for Access ............................................................................................................. 61
20.4
Access not exclusive ............................................................................................................. 61
20.5
Consents Wayleaves ............................................................................................................. 61
14
20.6
Import Permits and Licenses................................................................................................. 61
21.0
HOURS OF WORK AND RATE PROGRESS ................................................................... 62
21.1
Hours of Work ...................................................................................................................... 62
21.2
No Night or Holiday Work ................................................................................................... 62
21.3
Rate of Progress .................................................................................................................... 62
21.4
Erection Progress Report ...................................................................................................... 63
21.5
Clearance of Site on Completion .......................................................................................... 63
22.0
LABOUR .............................................................................................................................. 63
22.1
Engagement of Labour.......................................................................................................... 63
22.2
Supply of Water .................................................................................................................... 63
22.3
Alcoholic Liquor or Drugs .................................................................................................... 64
22.4
Arms and Ammunition ......................................................................................................... 64
22.5
Festivals and Religious Customs .......................................................................................... 64
22.6
Epidemics ............................................................................................................................. 64
22.7
Disorderly Conduct ............................................................................................................... 64
22.8
Safety of Workmen and Public ............................................................................................. 64
22.9
Observance by Sub-Contractors ........................................................................................... 65
22.10
Returns of Labour ............................................................................................................. 65
23.0
WORKMANSHIP AND MATERIALS ............................................................................... 65
23.1
Manner of Execution ............................................................................................................ 65
23.2
Quality of Materials .............................................................................................................. 65
24.0
ADVERSE PHYSICAL CONDITIONS AND ARTIFICIAL OBSTRUCTIONS .............. 66
25.0
TESTING OF PLANT .......................................................................................................... 66
25.1
Inspection and Testing during Manufacture ......................................................................... 66
25.2
Dates for Inspection and Testing .......................................................................................... 66
25.3
Facilities for Testing at Manufacturer’s Works .................................................................... 66
25.4
Certificate of Testing ............................................................................................................ 67
25.5
Rejection ............................................................................................................................... 67
25.6
Inspection Authority ............................................................................................................. 68
25.7
No Reduction of Liability ..................................................................................................... 68
26.0
DELIVERY OF PLANT ...................................................................................................... 68
26.1
Delivery ................................................................................................................................ 68
26.2
Packing and Marking ............................................................................................................ 68
15
26.3
Shipping Documents ............................................................................................................. 70
26.5
Overseas Transport ............................................................................................................... 71
26.6
Local Transport ..................................................................................................................... 71
26.7
Receiving and Damage Reports ............................................................................................ 72
26.8
Unloading and Storage at Site .............................................................................................. 72
27.0
SUSPENSION OF WORKS ................................................................................................. 73
27.1
Order to Suspend Progress .................................................................................................... 73
27.2
Payment for Plant when Progress Suspended ....................................................................... 73
27.3
Resumption of Work............................................................................................................. 74
28.0
DEFECTS BEFORE TAKING OVER................................................................................. 74
29.0
TESTS ON COMPLETION ................................................................................................. 75
29.1
Notice of Tests ...................................................................................................................... 75
29.2
Time for Tests ....................................................................................................................... 75
29.3
Delayed Tests........................................................................................................................ 75
29.4
Facilities for Tests on Completion ........................................................................................ 75
29.5
Repeat Tests .......................................................................................................................... 76
29.6
Consequences of Failure to Pass Tests on Completion ........................................................ 76
30.0
EXTENSION OF TIME FOR COMPLETION .................................................................... 77
31.0
DELAYS IN COMPLETION ............................................................................................... 77
31.1
Penalty for Delay in Completion .......................................................................................... 77
31.2
Prolonged Delay ................................................................................................................... 78
31.3
Engineering Services ............................................................................................................ 78
32.0
TAKING OVER ............................................................................................................... 79
32.1
Taking Over Certificate ........................................................................................................ 79
32.2
Taking Over by Portions ................................................................................................... 79
32.3
Use before Taking Over ........................................................................................................ 79
32.4
Interference with Tests.......................................................................................................... 80
33.0
DEFECT AFTER TAKING OVER ..................................................................................... 80
33.1
Defect Liability Period.......................................................................................................... 80
33.2
Making Good Defects ........................................................................................................... 81
33.3
Notice of Defects .................................................................................................................. 81
33.4
Extension of Defects Liability Period ................................................................................... 81
33.5
Delay in Remedying Defects ................................................................................................ 81
16
33.6
Removal of Defective Work ................................................................................................. 81
33.7
Further Tests on Completion ................................................................................................ 82
33.8
Conditions Applicable .......................................................................................................... 82
33.9
Right of Access ..................................................................................................................... 82
33.10
Contractor to Search ......................................................................................................... 82
33.11
Claims for Loss or Damage after Defects Liability Period ............................................... 82
33.12
Misconduct ....................................................................................................................... 83
33.13
Liability after Taking Over ............................................................................................... 83
34
VARIATIONS ...................................................................................................................... 83
34.1
Engineer’s Power to Vary ..................................................................................................... 83
34.2
Orders for Variations to be in Writing .................................................................................. 84
34.3
Valuation of Variations......................................................................................................... 84
34.4
Power of Engineer to Fix Rates ............................................................................................ 84
34.5
Variations Exceeding 10 per cent ......................................................................................... 85
34.6
Notice and Confirmation of Variations ................................................................................ 85
34.7
Progress with Variation ........................................................................................................ 85
34.8
Claims for Additional Payment for Variations ..................................................................... 85
34.9
Cancellation of the Works .................................................................................................... 86
35.0
VESTING OF PLANT AND CONTRACTOR’S EQUIPMENT ........................................ 86
35.1
Ownership of Plant ............................................................................................................... 86
35.2
Marking of Plant ................................................................................................................... 86
36.0
CONTRACTOR’S EQUIPMENT ........................................................................................ 87
36.1
Removal of Contractor’s Equipment .................................................................................... 87
36.2
Loss or Damage to Contractor’s Equipment ......................................................................... 87
37.0
CERTIFICATES AND PAYMENT ..................................................................................... 87
37.1
Certificate of Payment .......................................................................................................... 87
37.2
Application for Interim Certificates ...................................................................................... 87
37.3
Issue of Interim Certificates .................................................................................................. 88
37.4
Retention Money .................................................................................................................. 88
37.5
Value of Interim Certificates ................................................................................................ 89
37.6
Correction and Withholding of Interim Certificates ............................................................. 89
37.7
Advance Payments................................................................................................................ 90
37.8
Effect of Interim Certificates ................................................................................................ 90
17
37.9
Applicable for Final Acceptance Certificate......................................................................... 90
37.10
Issue of Final Acceptance Certificate ............................................................................... 91
37.11
Submission of Final Account ............................................................................................ 91
37.12
Value of Final Account Certificate ................................................................................... 91
37.13
Final Account Certificate Conclusive ............................................................................... 92
37.14
Adjustment to Certificates ................................................................................................ 92
37.15
Corrections to Certificates ................................................................................................ 92
38.0
PROVISIONAL SUMS .................................................................................................... 92
38.1
Provisional sums ............................................................................................................... 92
38.2
Ordering work against Provisional Sums ......................................................................... 92
38.3
Invoices and Receipts ....................................................................................................... 93
39.0
NOMINATED SUB-CONTRACTORS ........................................................................... 93
39.1
Nominated Sub-Contractors ............................................................................................. 93
39.2
Objections to Nominations ............................................................................................... 93
39.3
Responsibility for Design in Nominated Sub-Contracts ................................................... 94
39.4
Payments against Provisional Sums ................................................................................. 94
39.5
Delayed payments to Nominated Sub-Contractors ........................................................... 94
39.6
Continuing obligations of Nominated Sub-Contractor ..................................................... 95
40.0
PAYMENT CONDITIONS .............................................................................................. 95
40.1
Terms of payment ............................................................................................................. 95
40.2
Provision of Plant ............................................................................................................. 95
40.3
Installation of Plant ........................................................................................................... 96
40.4
Construction of the Building, Civil Engineering Works .................................................. 96
41.0
INTEREST ON DELAYED PAYMENTS ...................................................................... 97
42.0
CURRENT FLUCTUATION ........................................................................................... 97
43.0
FOREIGN CURRENCY .................................................................................................. 97
43.1
Payment in Rial Omani ..................................................................................................... 97
43.2
Rates of Exchange of Currency ........................................................................................ 97
43.3
Currency Conversion ........................................................................................................ 98
43.4
Currency Conversion relating to Provisional Sums .......................................................... 98
44.0
REMEDIES AND POWERS............................................................................................ 98
44.1
Contractor's Default .......................................................................................................... 98
44.2
Valuation at Date of Forfeiture ......................................................................................... 99
18
44.3
Payments after Forfeiture.................................................................................................. 99
44.4
Effect on Liability for Delay ............................................................................................. 99
45.0
BANKRUPTCY ............................................................................................................... 99
46.0
OUTBREAK OF WAR .................................................................................................. 100
46.1
Outbreak of War ............................................................................................................. 100
46.2
Removal of Contractor's Equipment on Termination in Case of War ............................ 100
46.3
Payment if Contract Terminated in Case of War ............................................................ 100
47.0
SPECIAL RISKS ............................................................................................................ 101
47.1
No Liability for War etc Risks ............................................................................................ 101
47.2
Special Risks - Definition ............................................................................................... 101
47.3
Damage to Works etc by Special Risks .......................................................................... 101
47.4
Projectiles, Missiles etc................................................................................................... 102
47.5
Increased Costs arising from Special Risks .................................................................... 102
48.0
FRUSTRATION ............................................................................................................. 102
49.0
SETTLEMENT OF DISPUTES ..................................................................................... 103
50.0
NOTICES ....................................................................................................................... 104
50.1
Notices to Contractor ...................................................................................................... 104
50.2
Notices to Employer and Engineer ................................................................................ 104
50.3
Change of address ........................................................................................................... 104
51.0
TERMINATION OF CONTRACT ................................................................................ 104
52.0
CHANGES IN COST AND LEGISLATION ................................................................ 104
53.0
CLEARANCE THROUGH CUSTOMS ............................................................................ 105
54.0
FIRE PRECAUTIONS ....................................................................................................... 105
55.0
GUARANTEES .................................................................................................................. 105
55.1
Guarantee of Material and Workmanship ........................................................................... 105
55.2
Performance Guarantees ..................................................................................................... 106
56.0
TAXATION, CUSTOMS DUTY, RATES AND OTHER CHARGES ............................. 106
19
INDEX
Access, Authority for
Access not exclusive
Access, Right of
Access to and Possession of the Site
Accident or Injury to Workmen
Accidents and Damage, Liability for
Accident or Injury to Workmen
Additional Payment for Variation, Claims for
Address, Change of
Adjustment to Certificates
Advanced Detailed Progress of Plant Schedule
Advance Payment Bond
Advance Payments
Clause
20.3
20.4
33.9
20.1
15.7
15.0
17.4
34.8
50.3
37.14
12.4
9.2
37.7
Page
61
61
82
60
53
50
58
85
104
92
46
44
90
ADVERSE PHYSICAL CONDITIONS AND
ARTIFICIAL OBSTRUCTIONS
AGREEMENT AND PROCEDURES
Alcoholic Liquor or Drugs
Ammunition, Arms and
Application for Interim Certificates
Applicable for Final Acceptance Certificate
Approval Procedures, Drawings and Specification
Arms and Ammunition
Approved Drawings
Assignment
Assistance concerning Laws and Regulations
Authority for Access
ASSIGNMENT AND SUB-LETTING
BANKRUPTCY
Bond, Advance Payment
Bond, Performance
BONDS
Cancellation of the Works
Care of the Works
Certificate, Final Account Conclusive
Certificate, Issue of Final Acceptance
Certificate of Testing
Certificate, Taking Over
Certificate, Value of Final Account
24
8.0
22.3
22.4
37.2
37.9
5.2
22.4
5.3
3.1
18.2
20.3
3.0
45
9.2
9.1
9.0
34.9
15.1
37.13
37.10
25.4
32.1
37.12
66
43
64
64
87
90
36
64
38
34
59
61
34
99
44
44
44
86
50
92
91
67
79
91
20
Certificates, Adjustment to
Certificates, Application for Interim
Certificates, Correction and Withholding of Interim
Certificates, Corrections to
Certificates, Effect of Interim
Certificates, Issue on Interim
CERTIFICATES AND PAYMENT
Change of address
CHANGES IN COST AND LEGISLATION
Claims for Additional Payment for Variations
Claims for Damage to Persons or Property
Clause
37.14
37.2
37.6
37.15
37.8
37.3
37.0
50.3
52
34.8
15.6
Page
92
87
89
92
90
88
87
104
104
85
53
Claims for Loss or Damage after Defects Liability Period
Claims in respect of Patent Rights
Clearance of Site on Completion
CLEARANCE THROUGH CUSTOMS
Completion, Clearance of Site on
Completion, Extension of Time for
Completion, Further Test on
Completion, Penalty for Delay and
Compliance with Laws and Governing Law
Compliance with Laws and Regulations
Computing Tender, Errors in
Conditions Applicable
Conduct, Disorderly
Confirmation of Variations, Notice and
Consents Wayleaves
33.11
19.2
21.5
53
21.5
30
33.7
31.1
4.2
18.1
10.3
33.8
22.7
34.6
20.5
82
60
63
105
63
77
82
77
35
59
45
82
64
85
61
Consequences of Failure to Pass Tests on Completion
Consequential Damage, Indirect or
29.6
16.1
76
55
Construction of the Building, Civil Engineering Works
40.4
96
Continuing obligations of Nominated Sub-Contractor
CONTRACT DATA
CONTRACT DOCUMENTS
Contractor, Errors by
Contractor, Notices to
Contractor, Notification by
Contractor, Obligations of the
Contractor's Default
39.6
10
4
6.2
50.1
17.5
7
44.1
95
44
35
40
104
58
41
98
21
Contractor‘s Employees
CONTRACTOR’S EQUIPMENT
Contractor's Equipment
Contractor's Equipment, Loss or Damage to
Contractor's Equipment, Removal of
Clause
13.2
36
14.1
36.2
36.1
Page
48
87
49
87
87
Contractor's Equipment, Removal of on Termination in
case of War
Contractor's Failure to insure, Remedy on
Contractor's Representative
Contractor to Search
CONTRACTORS SUPERINTENDENCE
Correction and Withholding of Interim Certificates
Corrections to Certificates
Cost
Currency Conversion
Currency Conversion relating to Provisional Sums
CURRENT FLUCTUATION
Damage to Persons and Property
46.2
17.7
13.1
33.1
13
37.6
37.15
1.5
43.3
43.4
42
17.3
100
59
48
82
48
89
92
33
98
98
97
57
Damage to Persons and Property before Taking Over
15.3
51
Damage to Persons and Property from a cause occurring
before Taking Over
Damage to Services on Site
Damage to Works caused by Excepted Risks
Damage to Works etc by Special Risks
DAMAGES AND LOSS
15.5
15.8
15.2
47.3
16
52
54
51
101
55
Damages to Persons and Property after Taking Over
Dates for Inspection and Testing
DEFECT AFTER TAKING OVER
Defect Liability Period
DEFECTS BEFORE TAKING OVER
Definitions
DEFINITIONS AND INTERPRETATIONS
Delay in Remedying Defects
Delayed payments to Nominated Sub-Contractors
Delayed Tests
DELAYS IN COMPLETION
Delivery
DELIVERY OF PLANT
Disorderly Conduct
15.4
25.2
33
33.1
28
1.1
1
33.5
39.5
29.3
31
26.1
26
22.7
52
66
80
80
74
28
28
81
94
75
77
68
68
64
22
Documents mutually explanatory
Drawings and Specification – Approval Procedure
DRAWINGS AND SPECIFICATIONS
Effect of Interim Certificates
Effect on Liability for Delay
Electricity, Water and Gas
Employer’s Warranty for Patent Rights
Employer's Equipment
Engagement of Labour
Clause
4.3
5.2
5
37.8
44.4
14.3
19.3
14.4
22.1
Page
36
36
36
90
99
49
60
50
63
ENGINEER AND ENGINEER’S REPRESENTATIVE
Engineer to Act Fairly
ENGINEER’S DECISIONS
Engineer’s Duties
Engineer’s Power to Delegate
Engineer’s Power to Vary
Engineer’s Representative
Engineering Services
Epidemics
EQUIPMENT SERVICES FACILITIES
Erection Progress Report
Errors by Contractor
Errors by Engineer
Errors in Computing Tender
Errors in Drawings
Extension of Defects Liability Period
EXTENSION OF TIME FOR COMPLETION
Facilities for Testing at Manufacturer’s Works
Facilities for Tests on Completion
Festivals and Religious Customs
Final Account Certificate Conclusive
FIRE PRECAUTIONS
Fixed Price
FOREIGN CURRENCY
Form of Agreement
Foundation Drawings
Foundations
FRUSTRATION
Further Tests on Completion
General Obligations
2
2.4
11
2.1
2.3
34.1
2.2
31.3
22.6
14
21.4
6.2
6.3
10.3
5.6
33.4
30
25.3
29.4
22.5
37.13
54
8.3
43
8.1
5.5
20.2
48
33.7
7.1
33
34
45
33
34
83
33
78
64
49
63
40
41
45
39
81
77
66
75
64
92
105
43
97
43
39
61
102
82
41
23
Clause
Page
GENERAL OBLIGATIONS OF THE EMPLOYER
Government Procedure
Guarantee of Material and Workmanship
GUARANTEES
Headings or Notes
Hours of Work
HOURS OF WORK AND RATE PROGRESS
Import Permits and Licenses
Increased Costs arising from Special Risks
Indirect or Consequential Damage
Inspection and Testing during Manufacture
Inspection Authority
Inspection of Drawings
Installation of Plant
Insurance of Works
20
8.2
55.1
55
1.4
21.1
21
20.6
47.5
16.1
25.1
25.6
5.4
40.3
17.1
60
43
105
105
33
62
62
61
102
55
66
68
38
96
55
INSURANCES, REGULATIONS AND PATENT
RIGHTS
INTEREST ON DELAYED PAYMENTS
Interference with Tests
Interpretation
Invoices and Receipts
Issue of Final Acceptance Certificate
Issue of Interim Certificates
LABOUR
Languages
LAWS AND REGULATIONS
Liability after Taking Over
LIABILITY FOR ACCIDENTS AND DAMAGE
Local Transport
Loss or Damage to Contractor’s Equipment
Making Good Defects
Manner of Execution
Marking of Plant
Misconduct
MISTAKES AND ERRORS
Mistakes and Information
Mitigation of Loss
No Liability for War etc Risks
No Night or Holiday Work
No Reduction of Liability
17
41
32.4
1.2
38.3
37.1
37.3
22
4.1
18
33.13
15
26.6
36.2
33.2
23.1
35.2
33.12
6
6.1
16.2
47.1
21.2
25.7
55
97
80
33
93
91
88
63
35
59
83
50
71
87
81
65
86
83
40
40
55
101
62
68
24
NOMINATED SUB-CONTRACTORS
Nominated Sub-Contractors
Notice and Confirmation of Variations
Notice of Defects
Notice of Objection
Notice of Tests
NOTICES
Notices to Contractor
Notices to Employer and Engineer
Notification by Contractor
Objections to Nominations
OBLIGATIONS OF THE CONTRACTOR
Observance by Sub-Contractors
Operating and Maintenance Instructions
Operation of Plant
Opportunities for other Contractors
Order to Suspend Progress
Ordering work against Provisional Sums
Orders for Variations to be in Writing
OUTBREAK OF WAR
Outbreak of War
Outline Drawings and Outline Specification
Overseas Transport
Ownership of Plant
Packing and Marking
PATENT RIGHTS
Patent Rights
PAYMENT CONDITIONS
Payment for Plant when Progress Suspended
Payment if Contract Terminated in Case of War
Payment in Rial Omani
Payments after Forfeiture
Payments against Provisional Sums
Penalty for Delay in Completion
Performance Bond
Performance Guarantees
Policies and Local insurances
Power of Engineer to Fix Rates
Procedure and Method
Proficiency of Languages
PROGRAMME
25
Clause
39
39.1
34.6
33.3
13.3
29.1
50
50.1
50.2
17.5
39.2
7
22.9
5.7
7.4
14.5
27.1
38.2
34.2
46
46.1
5.1
26.5
35.1
26.2
19
19.1
40
27.2
46.3
43.1
44.3
39.4
31.1
9.1
55.2
17.6
34.4
12.2
13.4
12
Page
93
93
85
81
48
75
104
104
104
58
93
41
65
39
43
50
73
92
84
100
100
36
71
86
68
60
60
95
73
100
97
99
94
77
44
106
59
84
46
49
46
Clause
12.1
12.3
34.7
47.4
31.2
40.2
38
38.1
23.2
21.3
43.2
26.7
25.5
44
17.7
36.1
Page
46
46
85
102
78
95
92
92
65
62
97
72
67
98
59
87
Removal of Contractor's Equipment on Termination in
Case of War
Removal of Defective Work
Repeat Tests
46.2
33.6
29.5
100
81
76
Responsibility for Design in Nominated Sub-Contracts
Resumption of Work
Retention Money
Returns of Labour
Right of Access
Safety and Security
Safety of Workmen and Public
Setting Out
SETTLEMENT OF DISPUTES
Shipping Documents
Singular and Plural
Site Data
SPECIAL RISKS
Special Risks - Definition
Sub-letting
Submission of Final Account
Sufficiency of Tender
Supply of Water
SUSPENSION OF WORKS
TAKING OVER
39.3
27.3
37.4
22.1
33.9
14.2
22.8
7.2
49
26.3
1.3
10.1
47
47.2
3.2
37.11
10.2
22.2
27
32
94
74
88
65
82
49
64
42
103
70
33
44
101
101
35
91
45
63
73
79
Programme to be Furnished
Progress of Works
Progress with Variation
Projectiles, Missiles etc
Prolonged Delay
Provision of Plant
PROVISIONAL SUMS
Provisional sums
Quality of Materials
Rate of Progress
Rates of Exchange of Currency
Receiving and Damage Reports
Rejection
REMEDIES AND POWERS
Remedy on Contractor ‘s Failure to Insure
Removal of Contractor’s Equipment
26
Taking Over by Portions
Taking Over Certificate
Clause
32.2
32.1
Page
79
79
TAXATION, CUSTOMS DUTY, RATES AND OTHER
CHARGES
TERMINATION OF CONTRACT
Terms of payment
TESTING OF PLANT
TESTS ON COMPLETION
Third Party Insurance
Time for Tests
Training of Employer 's Personnel
Unloading and Storage at Site
Urgent Repairs
Use before Taking Over
Valuation at Date of Forfeiture
Valuation of Variations
Value of Final Account Certificate
Value of Interim Certificates
VARIATIONS
Variations Exceeding 10 per cent
56
51
40.1
25
29
17.2
29.2
7.3
26.8
15.9
32.3
44.2
34.3
37.12
37.5
34
34.5
106
104
95
66
75
56
75
42
72
54
79
99
84
91
89
83
85
35
23
86
65
VESTING OF PLANT AND CONTRACTOR’S
EQUIPMENT
WORKMANSHIP AND MATERIALS
27
STANDARD CONDITIONS OF CONTRACT
1.0
DEFINITIONS AND INTERPRETATIONS
1.1
Definitions
In the Contract, as hereinafter defined, the following words and expressions shall have the
meanings hereby assigned to them except where the context otherwise requires:
(a) “Approved”
means approved in writing including
subsequent written confirmation of
previous verbal approval and approval
means approval in writing including as
aforesaid.
(b) “Contract”
means the Instructions to Tenderers,
Tender Documents, Standard Conditions
of Contract, Outline Specification,
Outline Drawings, Priced Bill of
Quantities*, Schedule of Rates and Prices,
if any*, Tender, the Letter of Acceptance
and the Form of Agreement.
(c) “Contractor”
means the person or persons, firm or
company whose Tender has been
accepted by the Employer and includes
the
Contractor’s
representatives,
successors and permitted assigns.
(i)
The name and full address in the
Sultanate of Oman (including Company
Registration Particulars) is that stated in
the Form of Agreement.
(ii)
Registered address of Head
Office (if different from above).
__________________________________
_________________________________
_________________________________
______________________________________________________________________________
*delete where not applicable
28
(d) “Contract Price”
means the Contract Sum adjusted to give
effect to such additions or deductions as
are provided for in the contract.
(e) “Contract Sum”
means the sum named in the Letter of
Acceptance.
(f)
“Contractor’s Equipment”
means all appliances or things of
whatsoever nature required for the
purpose of the Works but does not include
Plant or other things intended to form or
forming part of the Works.
(g) “Day”
means calendar day.
(h) “Defects Liability Period”
has the meaning assigned by Clause 33.1
(Defects Liability Period).
(i)
“Drawings”
means the drawings prepared by the
Contractor or by the Sub Contractor and
made in accordance with Clause 5.2
(Drawings and Specifications).
(j)
“Employer”
means the Government of the Sultanate of
Oman and the legal successors in the title
to the Employer who will employ the
Contractor. The address of the Employer
shall, for the purpose of the Contract, be
deemed to be as per that stated in the
Form of Agreement.
(k) “Engineer”
means____________________________
_________________________________
__________________________________
or other person, persons or firm appointed
from time to time by the Employer and
notified in writing to the Contractor to act
as the Engineer for the purposes of the
Contract in place of the said Engineer
whose full address in the Sultanate of
Oman (including Registration Particulars)
is ________________________________
__________________________________
__________________________________
29
(l)
“Engineer’s Representative”
means any resident engineer or assistant
of the Engineer appointed from time to
time by the Engineer to perform the duties
set forth in Clause 2.0 hereof whose
authority shall be notified in writing to the
Contractor by the Engineer.
(m) “Letter of Acceptance”
means the letter from, or on behalf of, the
Tender Board/ Ministry to the Contractor
notifying the Contractor of the
acceptance, in principle, of his final offer
which shall include any adjustments or
variations to the Tender agreed in writing
between the Employer and the Contractor
prior to the issue of the Letter of
Acceptance and the commitment of which
shall be subject to Clause 5 of the Form of
Tender and Sultani Decree No. 48 of 1976
as amended.
(n) “Local Portion”
means the value of such Works executed
within the Sultanate of Oman excluding
the C. and F. value of imported goods and
equipments.
(o) “Month”
means calendar month.
(p) “Outline Drawings”
means the drawings prepared by the
Engineer and referred to in the
Specification and any modification of
such drawings by the Engineer and such
other drawings as may from time to tome
be furnished and modifications thereto.
(q) “Outline Specification”
means the specification prepared by the
Engineer and annexed to or issued with
these Standard Conditions and such
modifications thereto made clear Clause
34.0 (Variations).
(r)
“Permanent Works”
means the permanent works to be
executed, completed and maintained in
accordance with the Contract.
(s) “Plant”
means machinery, apparatus, materials,
articles and things of all kinds to be
provided under the Contract other than
Contractor’s Equipment.
30
“Portion of the Works
means a part of the Works or a part of the
Sections of the Works.
(u) “Section of the Works
means the Sections into which the Works
are divided for the functions described
and set out in the Outline Specification.
(v) “Site”
means the lands and other places on,
under, in or through which the Works are
to be executed or carried out, and any
other lands and places provided by the
Employer for the purposes of the
Contract, with such other places as may
be specifically designated in the Contract
as forming part of the Site.
(w) “Specification”
means the specification prepared by the
Contractor and made in accordance with
Clause 5.2 (Drawings and Specifications).
(x) “Sub-Contractor”
means Nominated Sub-Contractor (as
defined in Clause 39.1) or any person,
firm or company (other than the
Contractor) named in the Contract for any
part of the Works or any person to whom
any part of the Contract has been sub-let
with the consent in writing of the
Employer, and the Sub-Contractor’s legal
personal representatives, successors and
permitted assigns.
(y) “Temporary Works”
means all temporary works of every kind
required in or about the execution,
completion or maintenance of the Works.
(z) “Tests on Completion”
means such tests to be made by the
Contractor before the Works are taken
over by the Employer as are provided for
in the Contract and such additional tests
as agreed between the Engineer and the
Contractor.
(t)
31
(aa) “Time for Completion”
means the time for completion of the
Works or any section or portion thereof as
stated in the Contract (or as extended
under Clause 30.0 – Extension of Time
for Completion) and shall be calculated
from the date of receipt of the written
order to commence the Works from the
Engineer being the period stated in
Paragraph 2 of the Form of Tender.
(ab) “Works”
means all Plant to be provided and work
to be done by the Contractor under the
Contract which shall include both
Permanent Works and Temporary Works.
(ac) “Writing”
means any manuscript, type-written or
printed statement.
32
1.2
Interpretation
Words importing persons or parties shall include firms and corporations.
1.3
Singular and Plural
Words importing the singular only also include the plural and vice versa where the context
requires.
1.4
Headings or Notes
The headings and marginal notes in these Standard Conditions of Contract shall not be
deemed to be part thereof or be taken into consideration in the interpretation or
construction of the Contract.
1.5
Cost
The word “Cost” shall be deemed to include overhead costs whether incurred on or off the
Site.
2.0
ENGINEER AND ENGINEER’S REPRESENTATIVE
2.1
Engineer’s Duties
The Engineer shall carry out such duties in issuing decisions and orders as are specified in
the Contract provided that before the issue of orders which either increase the Contract
Price to an amount greater than the Contract Sum or cause further increase in the Contract
Price the Engineer shall have obtained the specific approval of the Employer as required by
Sultani Decrees No. 48 of 1976 as amended unless such orders are issued pursuant to
Clause 15.9 (Urgent Repairs) hereafter. The Contractor upon receipt of such an order from
the Engineer shall copy such order to the Employer.
2.2
Engineer’s Representative
The Engineer’s Representative shall be responsible to the Engineer and his duties are to
watch and supervise the Works and to test and examine any Plant or workmanship
employed in connection with the Works. The Engineer’s Representative shall have no
authority to relieve the Contractor of any of his obligations under the Contract nor, except
as expressly provided in Clause 15.9 to order any work involving delay in completion or
any extra payment by the Employer, nor to make any variation to the Works.
Where the Employer directly appoints a separate Consultant the Consulting Engineer may
be required to appoint such Consultant to act as Engineers Representative in pursuance of
Clause 2.3 of the Conditions of Contract.
33
2.3
Engineer’s Power to Delegate
The Engineer may from time to time in writing delegate to the Engineer’s Representative
any of the powers, discretions, functions and/or authorities vested in him and he may at any
time revoke any such delegation. The Engineer shall furnish to the Contractor and to the
Employer a copy of any such written delegation or revocation. No such delegation or
revocation shall have effect until a copy thereof has been delivered to the Contractor. Any
written decision, instruction or approval given by the Engineer’s Representative to the
Contractor in accordance with such delegation shall bind the Contractor and the Employer
as though it had been given by the Engineer provided always that:
(a) Any failure of the Engineer’s Representative to disapprove any Plant or workmanship
shall not prejudice the power of the Engineer thereafter to disapprove such Plant or
workmanship and to order the rectification thereof in accordance with these
Conditions,
(b) If the Contractor shall be dissatisfied by reason of the decision of the Engineer’s
Representative he shall be entitled to refer the matter to the Engineer who will
thereupon either confirm, reverse or vary such decision in accordance with Clause 11.0
(Engineer’s Decisions).
2.4
Engineer to Act Fairly
Wherever by these Conditions the Engineer is required to exercise his discretion, by the
giving of a decision, opinion, consent or to express satisfaction or approval, or to determine
value or otherwise take action which may affect the rights and obligations of either the
employer or the Contractor, the Engineer shall exercise such discretion fairly within the
terms of the Contract and having regard to all the circumstances. If either party disagrees
with the action taken by the Engineer he shall be at liberty to refer the matter to Arbitration
in accordance with Clause 49.0 (Disputes and Arbitrations).
3.0
ASSIGNMENT AND SUB-LETTING
3.1
Assignment
The Contractor shall not assign the Contract or any part thereof or any benefit, obligation
or interest therein or thereunder, otherwise than by a charge in favour of the Contractor’s
Bankers of any Monies due or to become due under the Contract, without the prior written
consent of the Employer.
34
3.2
Sub-letting
The Contractor shall not sub-let the whole of the Works. Except where otherwise provided
by the Contract, the Contractor shall not sub-let any part of the Works without the prior
written consent of the Engineer which shall not be unreasonably withheld. Any such
consent, if given, shall not relieve the Contractor from any liability or obligation under the
Contract and he shall be responsible for the acts, defaults and neglects of any SubContractor, his agents, servants or workmen as fully as if they were the acts defaults or
neglects of the Contractor his agents servants or workmen.
4.0
CONTRACT DOCUMENTS
4.1
Languages
4.2
(a)
The Ruling Language of the Agreement is the English language.
(b)
All correspondence between the Employer, Engineer and the Contractor shall be in
English.
(c)
All markings on equipment, labels, sign-boards, instruments dials, machine and
component name plates, instruction sheets and shipping marks shall be in both
Arabic and English.
Compliance with Laws and Governing Law
(a)
The Contractor shall, in the manufacture of the Plant, observe and comply with and
be bound by the laws of the country of manufacture. In the execution of work on
Site and in the erection and operation of the Works the Contractor shall comply
with laws of the Sultanate of Oman,
(b)
The Contractor shall comply fully with the Laws concerning the appointment of
agents, the provision of the regular maintenance and repair facilities together with
the establishment in the Sultanate of Oman of a sufficient amount of spare parts to
ensure the same,
(c)
The Contract shall be governed by and construed in accordance with the Laws of
the Sultanate of Oman,
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(d)
The Contractor and his Sub-Contractors shall strictly observe the Boycott of Israel
law and no materials shall be supplied which have been manufactured by any firm
which is on the Boycott list nor shall any materials be shipped in any vessel which
is on the said list.
Each delivery of materials shall be accompanied by:
i) a certificate of origin countersigned by the Chamber of Commerce in the
country of origin,
ii) a manufacturer’s certificate stating that his goods do not include any materials
manufactured or made in Israel; the certificate shall be countersigned by the
nearest Sultanate of Oman Embassy. In countries where the Sultanate of Oman
has no diplomatic representation counter-signatures by any acceptable Arabian
Embassy.
4.3
Documents mutually explanatory
Unless otherwise provided in the Contract, the several documents forming the Contract are
to be taken as mutually explanatory of one another but in the case of ambiguities or
discrepancies the same shall be explained and adjusted by the Engineer, who shall
thereupon issue to the Contractor instructions thereon. Provided always that if, in the
opinion of the Engineer, compliance with any such instructions shall involve the
Contractor in any cost which, by reason of such ambiguity or discrepancy the Contractor
could not have reasonably foreseen, the Engineer shall, subject to the provisions of Clause
2.1, certify and the Employer shall pay such additional sum as may be reasonable to cover
such cost.
5.0
DRAWINGS AND SPECIFICATIONS
5.1
Outline Drawings and Outline Specification
The Engineer shall provide, as a basis for the Contract, Outline Drawings and Outline
Specifications.
5.2
Drawings and Specification – Approval Procedure
The Contractor shall submit to the Engineer for approval:
5.2.1
(a) Strictly within the times stated in the Specification or in the programme to be provided
under Clause 12.0 (Programme), such Drawings, calculations, samples, patterns, models
and information as may be called for therein, and in the numbers therein required or as the
Engineer may reasonably require in order to properly consider the design of the Works.
(b) During the progress of the Works and within such times as the Engineer reasonably
may require such Drawings of the general arrangement and details of the Works provided
that the Contractor shall not be under any obligation to supply copies of shop drawings.
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5.2.2
(a)
Drawings to be supplied either by the Contractor or his Sub-Contractors
shall be checked thoroughly by the Contractor with regard to
measurements, size of components, materials and details of mechanical
and electrical services, instrumentation, control equipment, civil and
building works, to satisfy himself that the Drawings conform to the
requirements and the intent of the Outline Specification, and the
Contractor shall place thereon the date of his approval. Drawings found to
be inaccurate or otherwise in error shall be corrected prior to submission to
the Engineer.
(b)
All Drawings prepared or furnished by the Contractor shall be marked
with the title or the Works, certified by the Contractor and Sub-Contractors
respectively, and shall be submitted to the Engineer in as many copies as
specified in the Appendix to the Form of Tender. Each submission of
Drawings shall be accompanied by a list giving the number and titles
thereof. All Drawings which require modifications as a result of the final
execution of the erection work and/or operational experience shall be
revised by the Contractor and reissued marked as “As Built” Drawings.
(c)
The Contractor shall submit, in accordance with his approved programme,
such information and Drawings to show that the requirement and intent of
the Outline Specification and Outline Drawings has been met which,
without limiting the generality of this Clause, this shall include such
schedules of plant assembly drawings, major assemblies and plant layout
arrangement, complete design drawings and design calculations for steel
structures of the Plant, schematic or flow diagrams, wiring diagrams
complete with mechanical and electrical services, together with such other
Drawings and detailed Drawings as may be required by the Engineer to
properly consider the design. All information or data shall be available for
checking each Drawing when it is received. Revised Drawings shall be
resubmitted for approval unless otherwise instructed by the Engineer. Any
revisions shall be plainly marked on the Drawings together with the dates
and an indication of the changes.
(d)
All Drawings shall be in metric and have a title, serial number, issue
record and scale together with the name of the Employer, the Project, the
Engineer and the subject matter.
(e)
The Contractor shall submit Drawings and full particulars of all
Temporary Works to the Engineer before commencing the same. The
Engineer may require modifications to be made if he considers them to be
insufficient and the Contractor shall give effect to such modification but
shall not be relieved of his responsibility for the sufficiency thereof.
37
5.2.3
As far as Drawings, calculations, Specification, data sheets, lists reports or any other
documents are subject to the Engineer’s approval or comments, the Engineer’s approval
will be given within twenty eight (28) days of receipt of such documents. If documents
submitted by the Contractor are incomplete and the Engineer is not in a position to check
the documents then the Engineer will inform the Contractor and the above mentioned
twenty eight (28) days period shall start after receipt of the required complementary
information. The same applies if any documents cannot be approved owing to the fact that
mistakes, discrepancies, deviations from the Contract Documents or other inconsistencies
are found and the Contractor is requested to submit the documents after rectification.
If the Engineer shall not approve any Drawing, calculations, sample, patterns or models so
provided the same shall be forthwith modified to meet the requirements of the Engineer
and shall be re-submitted. Approved Drawings shall be signed or otherwise identified by
the Engineer.
All documents submitted for approval shall be accompanied by a transmittal letter, listing
the said documents. The transmittal letters shall be serially numbered, with the relevant
number to be entered on each submitted document.
5.3
Approved Drawings
Drawings approved as above described shall not be departed from except as provided in
Clause 34.0 (Variations). In such case the Contractor shall submit new or amended
Drawings for approval which state clearly the revised reference number together with the
date of the amendment thereto. When approval has been given all copies of the superseded
Approved Drawings shall be clearly marked “Superseded”.
5.4
Inspection of Drawings
The Engineer shall have the right at all reasonable times to inspect all Drawings
comprising of the works at the premises of the Contractor and that of his Sub-Contractors.
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5.5
Foundation Drawings
The Contractor shall, as required by the Engineer, within the times stated, provide
Drawings showing the manner in which the Plant is to be affixed together with all
information relating to the Works, required for preparing suitable foundations, for
providing suitable access for the Plant and any necessary equipment to the point on Site
where the Plant is to be erected and for making all necessary connections to the plant
(whether such connections are to be made by the Contractor under the Contract or not).
Such Drawings shall be submitted in due time to allow for incorporation of such
information within the programme for the Works.
5.6
Errors in Drawings
Subject to Clause 6.1 (Mistakes in Information) any and all expenses resulting from an
error or omission in or from delay in delivery of the Drawings and information required in
accordance with this Clause shall be borne by the Contractor.
5.7
Operating and Maintenance Instructions
5.7.1
The Contractor shall furnish to the Employer as soon as possible and not later than the
period stated in the Appendix to the Form of Tender, before the Works are taken over,
Operating and Maintenance Instructions together with Drawings (other than shop
drawings) of the Works as completed, in sufficient detail to enable the Employer to allow
training of the Employer’s personnel and to operate, maintain, dismantle, reassemble and
adjust all parts of the Works. Unless otherwise agreed, the Works shall not be considered
to be completed for the purposes of taking over under the terms of Clause 32.0 (Taking
Over) until such Instructions and Drawings have been supplied to the Employer.
5.7.2
Two copies of the final Drawings of the Works as completed “As Built” Drawings shall be
prepared by the Contractor and forwarded to the Employer. These Drawings shall contain
sufficient detail to enable the Employer to maintain, dismantle, reassemble and adjust all
parts of the Works.
5.7.3
All Drawings incorporated in the operations, instructions and maintenance manuals as well
as all key drawings, i.e., general arrangement drawings, system diagrams, flow diagrams,
single line diagrams, control diagrams, if applicable, and all others considered by the
Engineer to be necessary, shall in addition to the original dimension of the Drawings be
supplied in a reduced size for easy handling.
39
5.7.4
All instruction sheets shall be bound in booklet form and be in the Arabic and English
language containing all information, description of equipment, diagrams, etc., necessary to
enable the Employer to properly operate and maintain the whole of the Works. Such
booklet shall include all possible operating procedures such as star-up, shut-down as well
as operating forms and operator’s log sheets for all mechanical and electrical plant and
equipment. The various instructions shall be written in a style easily intelligible for the
operating and maintenance personnel explaining, for various situations, what is to be done
and why.
5.7.5
The Contractor shall during the Defects Liability Period revise and/or update the operating
and maintenance instructions and introduce such modifications in the finally bound copies.
5.7.6
The Contractor shall prepare, assemble and submit spare parts lists in accordance with the
Contract Documents for all Plant supplied by him or by his Sub-Contractors.
6.0
MISTAKES AND ERRORS
6.1
Mistakes and Information
The Contractor shall be responsible for the consequences of any discrepancies, errors or
omissions in the Drawings and information supplied by him, whether they have been
approved by the Engineer or not, provided that such discrepancies, errors or omissions are
not due to incorrect information contained in the Outline Drawings, Outline Specification
or inaccurate information furnished to the Contractor in writing by the Engineer. Should
the Contractor rely upon such incorrect information then the Contractor shall have the right
to claim compensation form the Employer based upon satisfactory proof of the exact
amount of the time and costs expended in making such alteration to the Drawings and the
rectification of such Works performed to date.
6.2
Errors by Contractor
The Contractor shall at his own expense carry out any alterations or remedial work
necessitated by reason of such discrepancies, errors or omissions for which the is
responsible and modify the Drawings and information accordingly, or if the same be done
by or on behalf of the Employer shall bear all costs reasonably incurred thereby. The
performance of his obligations under this sub-clause shall not relieve the Contractor from
his liability under Clause 5.6 (Errors in Drawings) together with Clause 6.1 (Mistakes in
Information) and under Clause 31.1 (Penalty for Delay in Completion) insofar as that
liability arises as a result of such discrepancies, errors or omissions.
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6.3
Errors by Engineer
The Engineer’s approval of the Contractor’s and Sub-Contractor’s Drawings shall not
relieve the Contractor from his responsibility for errors or omissions which may exist, even
though Works are executed in accordance with such approved Drawings. Where such
errors or omissions are discovered later, they shall be made good by the Contractor at his
own expense irrespective of any approval of the Engineer. Any work executed according to
the decisions, instructions or orders received from the Engineer shall not in any way relieve
the Contractor from his responsibilities for supplying the Plant and executing the Works in
accordance with the Contract unless the Contractor has informed the Engineer upon receipt
and in writing that decision, instruction or order will result in the Contractor’s breach of
Contract and the Contractor has initiated a query or dispute in accordance with Clause
11.0(b) (Engineer’s Decisions) and has commenced an action under Clause 49.2 (Notice
for Arbitration).
7.0
7.1
OBLIGATIONS OF THE CONTRACTOR
General Obligations
The Contractor shall, subject to the provisions of the Contract, complete the Works with
due care and diligence within the Time for Completion stated in the Appendix to the Form
of Tender. The Contractor shall be fully and unrestrictedly responsible for the complete
design, manufacture, fabrication, testing, transport to port of disembarkation, shipping,
transport to Site, storage, erection, completion, checking, commissioning, testing, handing
over of the Works and for the remedying of defects in the Works so far as the necessity for
providing the same is specified in or is reasonably to be inferred from the Contract. He
shall also be responsible for the observance of all necessary safety measures at the Site as
well as observance of all applicable Laws and Regulations by him and his Sub-Contractors.
The Contractor shall provide all labour, including the supervision thereof, materials and
Contractor’s Equipment, and all other things whether of a temporary or permanent nature,
necessary to perform the Works.
The Contractor shall take full responsibility for the adequacy, stability and safety of all site
operations and methods of construction, provided that the Contractor shall not be
responsible, except as may be expressly provided in the Contract, for such detailed design
drawings or detailed specification of the Permanent Works or any Temporary Works which
have been prepared by the Engineer and utilized by the Contractor in constructing same.
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7.2
Setting Out
The Contractor shall be responsible for the accurate setting out of the Works in relation to
original points, lines and levels of reference given by the Engineer in writing and for the
correctness, subject as above mentioned, of the positions, levels, dimensions and alignment
of all parts of the Works and for the provision of all necessary instruments, appliances and
labour in connection therewith. If, at any time during the progress of the Works, any error
shall appear or arise in the positions, levels, dimensions or alignment of any part of the
Works, the Contractor on being required so to do by the Engineer shall at his own cost,
rectify such error to the satisfaction of the Engineer, unless such error is based on incorrect
data supplied in writing by the Engineer in which case the Contractor should inform the
Engineer in writing and the cost of rectifying the same shall be borne by the Employer. The
checking of any setting out or of any line or level by the Engineer shall not in any way
relieve the Contractor of his responsibility for the accuracy thereof. The Contractor shall
carefully protect and preserve bench marks, sight rails, pegs and other things used in
setting out the Works.
The Contractor shall give to the Engineer not less than 24 hours notice of his intention to
set out or give levels for any part of the Works so that arrangements may be made for
checking or issuing instructions.
7.3
Training of Employer 's Personnel
(a)
During the execution of the Works the Contractor shall if required by the Tender
Documents provide such assistance as may be necessary for the instruction and
training of operation and maintenance personnel appointed by the Employer for the
Plant.
(b)
The Contractor shall provide all necessary instruction material for this purpose
such as manuals, booklets, pamphlets, drawings, sketches, models, pictures,
photos, colour slides, films, etc. This instruction material shall become the
property of the Employer. If the Employer finds it necessary that operation and
maintenance personnel visit or stay at the manufacturer's premises for training
purposes the Contractor shall provide such reasonable assistance as deemed
necessary. The travelling and living expenses of such personnel shall be borne by
the Employer. The Contractor shall assist the Employer in the recruiting of any
additional operation and maintenance personnel.
42
7.4
Operation of Plant
The Contractor shall, if required by the Tender Documents, give a breakdown of prices for
the operation of the Plant for such period or periods stated therein. In the absence of such a
requirement or should the Employer not approve the offer than the obligations of the
Contractor save for Clause 33.0 (Defects after Taking Over) and Clause 15.4 (Damages to
Persons and Property after Taking Over)shall cease upon the issue of the Taking Over
Certificate. In the event that the Employer approves the offer than this shall be subject to a
separate Agreement with its own specific terms and conditions, however, without limiting
the liability of the Contractor under the terms and Conditions contained herein.
8.0
AGREEMENT ANDPROCEDURES
8.1
Form of Agreement
The Contractor shall when called upon so to do enter into and execute a Farm of
Agreement to be prepared and completed at the cost of the Employer in the form annexed
with such modification as may be necessary.
8.2
Government Procedure
The proposed Contract will, if the Contract Sum exceedsR0.500,000.000, be subject to
review by the Cabinet of the Deputy Prime Minister of Legal Affairs of the Sultanate of
Oman, after which the Contract will be signed by the authorised signatory of the Employer
and the Contractor and will then be subject to ratification in accordance with Sultani
Decree No. 48/76 as amended.
8.3
Fixed Price
That Contractor shall not be eligible for any increase in the Contract Sum due to the time
taken by the Employer for the finalisation of the Form of Agreement as stated in Clause 8.2
hereof.
Subject to Clause 52.0 (Changes in Cost and Legislation) this Contract is a Fixed Price
Contract and there shall be no amendment or adjustment of the Contract Sum unless due to
Clause 34.0 (Variations) hereof.
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9.0
BONDS
9.1
Performance Bond
For the due performance of the contract, the Tender shall contain an undertaking by the
Contractor to obtain, within either 10 days for a local company or 20 days for an
International Company from the date of the Letter of Acceptance, a bond of a bank
registered in the Sultanate of Oman to be jointly and severally bound with the Contractor to
the Employer, in the sum of 5% of the Contract Sum. The said bank shall be approved by
the Employer. The terms of the said bond shall be in accordance with Annexure C and the
cost of obtaining such bond shall be at the expense of the Contractor. Such bond should be
valid until the expiry of the Defects Liability Period. If an increase of the Contract Sum is
mutually agreed upon owing to any changes and/or modifications and/or amendments as
per Clause 34.0 (Variations) the Performance Bond shall be adjusted accordingly.
9.2
Advance Payment Bond
The bond for the full amount of the Advance Payment shall be from a Bank registered in
the Sultanate of Oman. The conditions of the bond shall bind the Bank: to indemnify and
pay to the Employer any part of the Advance Payment which remains not repaid by the
Contractor to the Employer and which the Contractor has failed to repay in accordance
with Clause 37.7(Advance Payments).
The terms of the said bond shall be in accordance with Annexure-Band the cost of
obtaining such bond shall be at the expense of the Contractor.
This bond shall be valid for I2 months or until the full recovery of the advance payment
whichever is the later.
If, however, the advance payment is recovered in full prior to the end of the 12 month
period, the Contractor may make application to the Employer far the release of the bond,
and such release will not be unreasonably refused.
10.0
CONTRACT DATA
10.1
Site Data
The Employer shall make available to the Contractor with the Tender Documents such data
on climatic, hydrological and general conditions for the operation of the Works which shall
have been obtained by or on behalf of the Employer from investigations undertaken
relevant to the Works together with information relating to access to the Site. The Tender
shall be deemed to have been based on such data, but the Contractor shall be fully
responsible for his own interpretation thereof.
44
10.2
Sufficiency of Tender
The Contractor by tendering shall be deemed to have satisfied himself as to all the
conditions and circumstances affecting his Tender, including but not limited to the nature
and character of the Works to be executed, the prevailing environmental and ambient
conditions, local uses, codes and conditions, the existing installations (if any), the
possibility of executing the Works as required by the Contract, the general circumstances
at the Site of the Works, and as to the general labour position at the Site, and to have
determined his prices accordingly. The Contractor shall be responsible for all errors made
and for any misunderstanding or incorrect information subject to Clause 6.0 (Mistakes and
Error) hereof. Any information received from the Employer or the Engineer shall not
relieve the Contractor from his responsibility for executing the Works in accordance with
the Contract, including details and apparatus which may not have been specifically
mentioned in the contract but are necessary for ensuring the safe and efficient execution of
the Works.
10.3
Errors in Computing Tender
The Contractor shall be fixed and the Contractor shall be responsible for any error which
he may have made in computing any quantities of labour and material required or costs
involved.
The Contract Sum shall not be allowed to be corrected for any errors made by the
Contractor in calculating the Contract Sum.
11.0
ENGINEER’S DECISIONS
The Contractor shall proceed with the Works in accordance with the decisions, instructions
and orders given by the Engineer in accordance with these Standard Conditions of
Contract, provided always that:
(a) If the Contractor shall, within 7 days after being given any decision, instruction or
order otherwise than in writing, require it to be confirmed in writing, such decision,
instruction or order shall not be effective until written confirmation thereof has been
received by the Contractor; and
(b) If the Contractor shall, by written notice to the Engineer within 21 days after receiving
any decision, instruction or order of the Engineer in writing or written confirmation
thereof, dispute or question the decision, instruction or order, giving his reasons for so
doing, the matter shall be referred to the Engineer who shall within a further period of
21 days by notice in writing, with reasons there for, to the Contractor and the
Employer, either confirm, reverse or vary such decision.
45
12.0
PROGRAMME
12.1
Programme to be Furnished
Within the time stated in the Appendix to the Form of Tender following ratification of the
Form of Agreement the Contractor shall submit to the Engineer for his approval a detailed
programme showing, in such form as may be required by the Engineer, the order of
procedure in which he proposes to carry out the Works including the design, manufacture,
delivery to Site, erection and commissioning thereof. The submission to and approval by
the Engineer of such programme shall not relieve the Contractor of any of his duties or
responsibilities under the Contract.
12.2
Procedure and Method
After submission to and approval by the Engineer of such programme the Contractor shall
adhere to the order of procedure and method stated therein unless he obtains the written
permission of the Engineer to vary such order or method.
12.3
Progress of Works
If at any time it should appear to the Engineer that the actual progress of the Works does
not conform to the approved programme, the Contractor shall produce, at the written
request of the Engineer, a revised programme showing the modifications to the approved
programme necessary to ensure completion of the Works within the Time for Completion.
12.4
Advanced Detailed Progress of Plant Schedule
(a) The Contractor shall supply within the time stated in the Appendix to the Form of
Tender following ratification of the Form of Agreement an advanced detailed progress
schedule covering, as far as applicable at that time, the envisaged date of manufacture and
key dates for the entire Plant and each section of the Plant such as:
Contractor's Plant:
- Schedule of design and submission of Drawing dates for approval.
- Schedule of fabrication dates.
- Schedule of workshop test dates.
- Final delivery ex-works dates.
- Port of embarkation, estimated time of departure, mode of transport, estimated time of
arrival.
46
Sub-Contractor's Plant:
-
Date of placing order indicating:

Manufacturer’s name and location

Accounting code numbers applicable thereto

Contractor's job order number

Date of order

Workshop test dates

Schedule of ex-works dates

Schedule of shipping dates
-
Other information:
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
Such progress information shall be brought up to date every month and shall form the basis for the
follow-up and expediting services to be performed by the Engineer.
(b)
(i)
The Contractor shall submit to the Engineer any and all reasonable information
required by him at any time during manufacture. This information shall clearly and
accurately show the progress of work and the actual state of affairs.
(ii)
During the period of shop fabrication, the Contractor shall submit monthly reports
in conformity with the Engineer's request. Such reports shall show the actual
progress as of the date of the report plotted against the progress schedule as given
in the Contract and shall be broken down to indicate the state of purchased
material, detailed shop fabrication schedule, shipping dates, etc.
(iii)
The inspections and expediting work carried out by the Engineer shall not release
the Contractor from any of his obligations under this Contract.
(iv)
Periodic routine visits as deemed necessary will be undertaken by the Engineer to
the manufacturer's premises to check the actual state of work.
(v)
Travelling expenses (transportation and hotel costs only) incurred by the Engineer
outside of the Sultanate of Oman in connection with co-ordination meetings,
checking the progress of work, expediting of work, necessary routine visits, etc., to
the Contractor's/Sub-Contractor‘s offices and/or premises shall be borne by the
Employer.
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13.0
CONTRACTORS SUPERINTENDENCE
13.1
Contractor's Representative
The Contractor shall give or provide all necessary superintendence during the execution of
the Works and as long thereafter as the Engineer may consider necessary for the proper
fulfillment of the Contractor's obligations under the Contract. The Contractor, or a
competent and authorised agent or representative approved of in writing by the Engineer,
which approval may at any time be withdrawn, is to be present on the Site during all hours
worked by the Contractor and shall give his whole time to the superintendence of the same.
If such approval shall be withdrawn by the Engineer, the Contractor shall, as soon as is
practicable, having regard to the requirements for a replacement as hereinafter mentioned,
after receiving written notice of such withdrawal, remove the agent from the Works and
shall not thereafter employ him again on the Works in any capacity and shall replace him
by another agent approved by the Engineer. Such authorised agent or representative shall
receive, on behalf of the Contractor, directions and instructions from the Engineer, or,
subject to the limitations of Clause 2.0 hereof, the Engineer's Representative.
13.2
Contractor‘s Employees
The Contractor shall provide and employ on the Site in connection with the execution,
completion and remedying of defects of the Works:
(a) Only such technical assistants as are skilled and experienced in their respective callings
and such sub-agents, foreman and leading hands as are competent to give proper
supervision to the work they are required to supervise; and
(b) Such skilled, semi-skilled and unskilled labour as is necessary for the proper and
timely execution, completion and remedying of defects of the Works.
13.3
Notice of Objection
The Engineer shall be at liberty to object: to and require in writing the Contractor to
remove forthwith from the Works any person employed by the Contractor in or about the
execution, completion and remedying of defects of the Works who, in the opinion of the
Engineer, misconducts himself, or is incompetent or negligent in the proper performance of
his duties, or whose employment is otherwise considered by the Engineer to be undesirable
and such person shall not be again employed upon the Works without the written
permission of the Engineer. Any person so removed from the Works shall be replaced as
soon as possible by a competent substitute approved by the Engineer.
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13.4
Proficiency of Languages
The Contractor's agent and a reasonable proportion of his technical assistants shall be
capable of speaking, writing and understanding the language(s} of the Contract
Documents. A sufficient number of the foreman shall have a working knowledge of the
language(s) spoken by the labour employed on the site.
14.0
EQUIPMENT SERVICES FACILITIES
14.1
Contractor's Equipment
The Contractor shall, at his own expense, provide all Contractor's Equipment, haulage and
power necessary to execute and complete the Works.
14.2
Safety and Security
The Contractor shall throughout the progress of the Works have full regard for the safety of
all persons upon the Site and shall keep the Site (so far as the same is under his control)
and the Works (so far as the same are not completed and taken over by the Employer) in an
orderly state appropriate to the avoidance of danger to such persons and shall, without
prejudice to the foregoing, in connection with the Works provide and maintain at his own
cost all lighting, guards, fencing, warning signs and watching when and where necessary or
required by the Engineer or by any competent authority, for the protection of the Works, or
for the safety and convenience of the public or others.
The Contractor shall also be responsible for the safety and provision of temporary
roadways, footways, guards and fences for the accommodation and protection of owners
and occupiers of adjacent property, the public and others.
14.3
Electricity, Water and Gas
The Contractor shall be entitled to use for the purposes of the Works such supplies of
electricity, water and gas as may be available on the Site and of which details may be given
in the Tender Documents and shall, at his own expense, provide any apparatus necessary
for such use including meters and pay to the Employer all charges made for such use of
these supplies.
Save as stated above, the Contractor shall at his own expense make all his own
arrangements for the distribution of electricity, water and gas to all points where they are
required for all the operations under the Contract and for this purpose he shall provide and
use all the necessary Constructional Plant, Temporary Works and transport
and materials necessary to supply and distribute the supplies to the various parts of the
Works, including else a satisfactory supply of water to the offices, camps, latrines and
other temporary buildings requiring it and a sufficient supply for drinking water of good
quality for the personnel of the Contractor.
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14.4
Employer's Equipment
The Employer shall at the request of the Contractor and for the execution of the Works
allow the Contractor to operate any suitable equipment belonging to the Employer that may
be available on the Site and of which details are given in the Tender Documents. The
Employer shall during such operation retain ownership of the equipment but shall not be
responsible for any acts of the Contractor in relation to such equipment.
14.5
Opportunities for other Contractors
The Contractor shall, in accordance with the requirements of the Engineer, afford to any
other contractors employed by the Employer and their workmen and the workmen of the
Employer and of any other duly constituted authorities who may be employed in the
execution on or near the Site of any work not included in the Contract or of any contract
which the Employer may enter into in connection with or ancillary to the Works, all
reasonable opportunities for carrying out their work.
15.0
LIABILITY FOR ACCIDENTS AND DAMAGE
15.1
Care of the Works
(a) The Contractor shall take full responsibility for the care of the Works or any Section or
Portion thereof until a date not exceeding 14 days from that stated in the Taking over
Certificate issued in respect thereof under Clause 32.0 (Taking Over) and in case any
damage or loss shall happen to any Portion of the Works not taken over as aforesaid, from
any cause whatsoever (save and except the excepted risks as defined in paragraph (b) of
this sub-clause) the same shall be made good, by and at the sole cost of the Contractor and
to the satisfaction of the Engineer. The Contractor shall also be liable for any loss of or
damage to the Works occasioned by him or by any Sub-Contractor in the course of any
operations carried out by him or by his Sub-Contractors for the purpose of completing any
outstanding work or complying with his obligations under Clause 33.0 (Defects after
Taking Over).
(b)
The “excepted risks“ are:
(i)
Force Majeure
- insofar as they occur within the Sultanate of Oman, war, hostilities
(whether war be declared or not), invasion, act of foreign enemies,
rebellion, revolution, insurrection or military or usurped power, civil
war, riot, commotion or disorder of persons other than employees of
the Contractor or of his Sub-Contractor or use or occupation by the
Employer of any part of the Works; or
50
-
ionizing radiation or contamination by radio-activity from any nuclear fuel or from any
nuclear waste from the combustion of nuclear fuel, radio-active toxic explosive, or other
hazardous properties of any explosive, nuclear assembly or nuclear component thereof; or
-
Pressure waves caused by aircraft or other aerial devices travelling at sonic or supersonic
speeds.
15.2
(ii)
any occurrences that an experienced contractor could not foresee, or if
foreseeable could not reasonably make provision for or insure against.
(iii)
a cause due to a design furnished or specified by the Engineer for which
the Contractor has disputed such design under Clause 11.0(b) (Engineer’s
Decisions) and has disclaimed responsibility in writing after the receipt of
the Engineer’s Decisions and has commenced an action under Clause 49.2
(Notice for Arbitration).
Damage to Works caused by Excepted Risks
In the event of loss or damage to the Works arising from or occasioned by any of the
excepted risks (save and except the Special Risks as defined in Clause 47.2 (Special Risks
– Definition)], the same shall, if required by the Employer, be made good by the
Contractor but at the cost of the Employer at a price to be agreed between the Contractor
and the Engineer subject to Clause 2.1 (Engineer’s Duties) hereof.
15.3
Damage to Persons and Property before Taking Over
The Contractor shall indemnify the Employer in respect of death or injury to any persons
and of all damages to any property occurring before all the Works shall have been taken
over and against all actions, suits, claims, demands, costs, charges and expenses arising in
connection therewith that shall be occasioned by the negligence of the Contractor or any
Sub-Contractor or by defective design, [other than a design made, furnished or specified by
the Engineer and for which the Contractor has disclaimed responsibility in writing in
accordance with Clause 11.0(b) (Engineer’s Decision)] materials or workmanship but not
otherwise. Provided that the Contractor shall not be liable by virtue of this Sub-Clause in
respect of damage or injury attributable to defects in any Section of Portion of the Works
after expiry of the Defects Liability Period subject to Clause 56.1 (Guarantee of Material
and Workmanship).
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15.4
Damages to Persons and Property after Taking Over
If there shall occur any loss of or damage or injury to any property or person whilst the
Contractor is on the Site for the purpose of making good a defect in any Section or Portion
of the Works pursuant to Clause 33.0 (Defects after Taking Over) or for the purpose of
carrying out Tests on Completion of any such Section during the Defects Liability Period
as provided in Clause 32.4 (Interference with Tests) the Contractor shall be liable as
follows:
(a)
In respect of loss of or damage to the said Section or Portion the Contractor’s
obligations shall be as defined in Clause 33.0 (Defects after Taking Over).
(b)
In respect of damage or injury to any other property or to any person and of any
actions, claims, demands, costs, charges and expenses arising in connection
therewith the Contractor shall be liable to the extent that such damage or injury
was caused by the negligence of the Contractor or a Sub-Contractor whilst on the
Site as aforesaid or by defective materials or workmanship used in making good
the said defect but not otherwise.
The said Section or Portion of the Works shall be defined by reference to the Taking Over
Certificate issued in respect thereof pursuant to Clause 32.0 (Taking Over).
15.5
Damage to Persons and Property from a cause occurring before Taking Over
If there shall occur, after the commencement of the Defects Liability Period in respect of
any Section or Portion of the Works, any loss of or damage or injury to any property or
persons as a result of a cause occurring prior to the commencement of the Defects Liability
Period the Contractor’s liability shall be as follows:
(a) In respect of loss of a damage to the said Section or Portion the Contractor’s
obligations shall be as defined in Clause 33.0 (Defects after Taking Over).
(b) In respect of damage or injury to any property or to any person and of any actions,
claims, demands, costs, charges and expenses arising in connection therewith the
Contractor shall be liable to the extent that such damage or injury was caused by the
negligence of the Contractor or a Sub-Contractor or by defective design, (other than a
design made, furnished or specified by the Engineer and for which the Contractor has
disclaimed responsibility in writing in accordance with Clause 11.0(b) (Engineer’s
Decision)) materials or workmanship but not otherwise.
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15.6
Claims for Damage to Persons or Property
In the event of any claim being made against the Employer arising out of the matter
referred to in and in respect of which the Contractor may be liable under this Clause, the
Contractor shall be promptly notified thereof, and may at his own expense conduct all
negotiations for the settlement of the same and any litigation that may arise therefrom. The
conduct by the Contractor of such negotiations or litigation shall be conditional upon the
Contractor having first given to the Employer such reasonable security as shall from time
to time be required by the Employer to cover the amount ascertained or agreed or
estimated, as the case may be, of any compensation, damages, expenses and costs for
which the Employer may become liable. The Employer shall, at the request of the
Contractor, afford all available assistance for any such purpose and shall be repaid all
reasonable costs incurred in so doing.
If the Employer has to pay or elects to pay or elects to pay any money in respect of any
such claims or demands as aforesaid, the amount so paid and the cost incurred by the
Employer shall be charged to and paid by the Contractor, provided always that the
Employer shall, if circumstances permit, give to the Contractor reasonable opportunity of
examining such claims or demands before payment. In the event of the Contractor
disputing the amount of any payment (except payments made in accordance with a legal
obligation or after approval of the Contractor) then the Contractor shall have the right to
refer the matter to arbitration in accordance with Clause 49.2 (Notice for Arbitration).
15.7
Accident or Injury to Workmen
The Contractor shall indemnify the Employer against all actions, suits, claims, demands,
costs of expenses arising in connection with death or injuries (other than such as may be
the responsibility of the Employer, his agents or servants) suffered by persons employed by
the Contractor or his Sub-Contractors on the Works, whether at Law or under any
Regulations dealing with the question of the liability of employers for injuries suffered by
employees.
The Contractor shall also indemnify the Employer and every member, officer and
employee thereof and the Engineer and the Engineer’s Representatives and every member
of his staff against any claim or demand from accident, injury, damage, loss and/or
compensation of any kind whatsoever arising out of or in connection with all claims and
demands which may be made against the Employer for or in respect of or arising out any
failure by the Contractor in the performance of his obligations under any of the provisions
of the Contract.
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If the Employer has to pay or elects to pay any money in respect of any such claims or
demands as aforesaid, the amount so paid and the cost incurred by the Employer shall be
charged to and paid by the Contractor, provided always that the Employer shall, if
circumstances permit. give to the Contractor reasonable opportunity of examining such
claims or demands before payment. In the event of the Contractor disputing the amount of
any payment (except payments made in accordance with the legal obligations or after
approval of the Contractor} then the Contractor shall have the right to refer
the matter to arbitration in accordance with Clause 49.2 (Notice for Arbitration).
15.8
Damage to Services on Site
The Contractor shall not interfere with the Employer's or any other authorities supplies and
services on Site of whatsoever nature such as, but not limited to oil, electricity, water and
gas, telephone, buried cables and sewerage. If any such supply or service is
interfered with and/or damaged, the Contractor shall report it immediately to the Employer
and to the Engineer verbally and in writing.
The Contractor shall be responsible for any damage caused on Site to such supplies or
services of the various authorities concerned, unless such services are not shown in any
record which either the Employer, Engineer, or the relevant authorities in Oman have put at
the Contractor's disposal and a prudent Contractor would have no reason for suspecting
such services were present.
Should the Contractor consider it necessary to interfere with any such supplies and services
or should it be necessary under the Contract to do so then the Contractor shall request the
approval of the Engineer in writing prior to any action and failing which the
provision of this sub-clause shall apply.
In addition to and without prejudice to the generality of the indemnity referred to above,
and to the Contractor's liability for damages generally, the Contractor shall pay to the
Employer in respect of damage to or interference with any such supply or service a charge
to be fixed by the Employer, or the relevant authority.
15.9
Urgent Repairs
(a) Notwithstanding the limitations on the Engineer's powers as stated in Clause 2.1 hereof
if, by reason of any accident, or failure, or other event occurring to, in or in connection
with the Works, or any part thereof, either during the execution of the Works, or during
the Period of Maintenance, any remedial or other work or repair shall, in the opinion of
the Engineer be urgently necessary for the safety of life or of the Works or of adjoining
property, then the Engineer shall be deemed to have the approval of the Employer to
instruct such work or repair to be carried out immediately.
54
(b)
Should the Contractor be unable or unwilling at once to so such work or repair; the
Employer may employ and pay other persons to carry out such work or repair or to do as
the Engineer may consider necessary. If the work or repair so done by the Employer is
work which, in the opinion of the Engineer, the Contractor was liable to do at his own
expense under the Contract, all expenses properly incurred by the Employer in doing such
work shall be recoverable from the Contractor by the Employer, or may be deducted by the
Employer from any monies due or which may become due to the Contractor. Provided
always that the Engineer shall, as soon after the occurrence of. any such emergency as may
be reasonably practicable, notify the Contractor in writing of the probable extent of such
third party expenses.
16.0
DAMAGES AND LOSS
16.1
Indirect or Consequential Damage
Except as provided in Clause 31.1 (Penalty for Delay in Completion) for a reduction of the
Contract Price for delay and except as provided in Clause 33.12 (Misconduct), the
Contractor shall not be liable to the Employer by way of indemnity or by reason of any
breach of the Contract for partial loss of use of the Works or of profit or of any contract or
for any indirect or consequential damage that may be suffered by the Employer in excess
of the amount stated in the Appendix to the Form of Tender.
16.2
Mitigation of Loss
In all cases the party establishing a breach of contract shall be under a duty ta take all
reasonable measures to mitigate the loss which has occurred provided that he can do so
without unreasonable inconvenience or cost. Should he fail so to do, the party in breach of
the Contract may claim a reduction in the damages.
17.0
INSURANCES, REGULATIONS AND PATENT RIGHTS
17.1
Insurance of Works
(a)
Without limiting his obligations and responsibilities under Clause 15.0 (Liability
for Accidents and Damage} hereof, the Contractor shall insure in the joint names
of the Employer and the Contractor against all loss or damage from whatever cause
arising, other than the excepted risks, for which he is responsible under the terms
of the Contract and in such manner that the Employer and Contractor are covered
for the period stipulated in Clause 15.0 hereof and are also covered during the
Defects Liability Period for loss or damage arising from a cause, occurring prior to
the commencement of the Defects Liability Period, and for any loss or damage
occasioned by the Contractor in the course of any operations carried out by him for
the purpose of complying with his obligation under this Contract.
55
The Contractor shall insure the Works to the value of the Contract Sum plus such other
additional sum which in the opinion of the Contractor is sufficient to cover these additional
expenses of a nature incidental to the Contractors responsibilities under Clause 15.1(Care
of Works) which additional sum shall in any event not be less than 15 per cent of the
Contract Sum and shall be stated in the Appendix to the Form of Tender.
Such insurance shall be effected prior to commencement of the Works in accordance with
Clause 17.6 (Policies and Local Insurance}.
(b)
17.2
Should the Works, or any section or portion thereof or any plant be damaged or
lost during the continuance of any of the insurances aforesaid by any risk insured
against, the Contractor shall proceed with the utmost dispatch to make good such
damage, or loss, and every sum of money received upon the policy or policies,
whether such insurance shall have been effected by the Contractor or by the
Employer or whether the policies be in the name of either of them or in the joint
names as provided for in Clause 17.1 hereof, shall be paid to the Employer and be
paid by the Employer to the Contractor, by such installments as the Engineer shall
think proper and certify, having regard to the progress made by the Contractor in
making good the damage or loss as aforesaid, if insofar as such damage ought, in
the opinion of the Engineer, to be made good for the proper conduct of the Works,
or the construction, completion and maintenance of the Works. If, and insofar as
the said monies shall not be required for the purpose aforesaid, they shall upon the
direction in writing of the Engineer, be paid over to the Contractor. If and insofar
as such monies shall be insufficient for the purpose aforesaid, the deficiency shall
be borne by the Contractor.
Third Party Insurance
(a)
Before commencing the execution of the Works the Contractor, without limiting
his obligations and responsibilities under Clause 15.6 (Claims for Damage to
Persons or Property) shall insure against his liability for any material or physical
damage, loss or injury which may occur to any property, including that of the
Employer, or to any person, including any employee of the Employer, by or arising
out of the execution of the Works or in the carrying out of the Contract.
(b)
Such insurance shall be effected for at least the amount stated in the Appendix to
the Form of Tender, per single accident with an unlimited number of accidents.
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(c)
17.3
The terms shall include a provision whereby, in the event of any claim in respect of
which the Contractor would be entitled to receive indemnity under the policy being
brought or made against the Employer, the insurer will indemnify the Employer
against such claims and any costs, charges, and expenses in respect thereof. If the
Employer page any monies in respect of any such claims or demands as aforesaid
the amount so paid and the costs incurred by the Employer shall be charged to and
paid by the Contractor provided always that, the Employer shall if circumstances
permit give to the Contractor reasonable opportunity of examining such claim or
demand before payment. In the event of the Contractor disputing the payment,
except payments made in accordance with a legal obligation or after approval of
the Contractor, then the Contractor shall have the right to refer the matter in
accordance with the provisions of Clause 49.2 (Notice of Arbitration).
Damage to Persons and Property
(a)
The Contractor shall, except if and so far as the Contract provides otherwise,
indemnify and keep indemnified the Employer and his servants agents or
employees against all losses and claims in respect of injuries or damage to any
persons or material or physical damage to any property whatsoever which may
arise out of or in consequence of the execution, completion and remedying of
defects of the Works and against all claims, proceedings, damages, costs, charges
and expenses whatsoever in respect of or in relation thereto except any
compensation or damages for or with respect to:
(i)
the permanent use or occupation of land by the Works or any part thereof,
(ii)
the right of the Employer to execute the Works or any part thereof on,
over, under, in or through any land,
(iii)
injuries or damage to persons or property which are the unavoidable result
of the execution, completion or remedying of defects of the Works in
accordance with contract,
(iv)
injuries or damage to persons or property resulting from any act or neglect
of the Employer, his agents, servants or other contractors, not being
employed by the Contractor, or for or in respect of any claims,
proceedings, damages, costs, charges and expenses in respect thereof or in
relation thereto or where the injury or damage was contributed to by the
Contractor, his servants or agents such part of the compensation as may be
just and equitable having regard to the extent of the responsibility of the
Employer, his servants or agents or other contractor for the damage or
injury.
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17.4
17.5
(b)
The Employer shall indemnify the Contractor against all claims, proceedings,
damages, costs, charges and expenses in respect of the matters referred to in the
proviso to sub-clause (a) above.
(c)
No member of the Employer's staff shall be in any way personally liable to the
Contractor for their acts or obligations under the Contract or answerable for any
default or omission on the part of the Employer in the observance or performance
of any of the acts matters or things which are contained in the Contract.
Accident or Injury to Workmen
(a)
The Employer shall not be liable for or in respect of any damages or compensation
payable at law in respect or in consequence of any accident or injury to any
workman or other person in the employment of the Contractor or any SubContractor, save and except an accident or injury resulting from any act or default
of the Employer, his agents or servants. The Contractor shall indemnify and keep
indemnified the Employer against all such damages and compensation, save and
except as aforesaid, and against all claims, proceedings, costs, charges and
expenses whatsoever in respect thereof or in relation thereto.
(b)
Provided always that, in respect of any persons employed by any Sub-Contractor,
the Contractor's obligation to insure as aforesaid under this sub-clause shall be
satisfied if the Sub-Contractor shall have insured against the liability in respect of
such persons in such manner that the Employer is indemnified under the policy,
but the Contractor shall require such Sub-Contractor to produce to the Engineer
prior to commencement of the Works, such policy of insurance and the receipt for
the payment of the current and subsequent premiums within 7 days of payment.
Notification by Contractor
(a)
The Contractor shall notify the insurers of any of the insurances referred to in
Clauses l7.1, 17.2 and 17.4 hereof of any matter or event which by the terms of
such insurances are required to be so notified and the Contractor shall indemnify
and keep indemnified the Employer against all losses, claims, demands,
proceedings, costs, charges and expenses whatsoever arising out of or resulting
from any default by the Contractor in compliance with the requirements of this
Clause whether as a result of the avoidance of such insurance or otherwise.
(b)
The Contractor shall keep the Employer informed of all matters regarding claims
submitted by him to the insurers wherein any advantage from insurance policies is
claimed.
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17.6
17.7
Policies and Local insurances
(a)
The Contractor shall prior to the Commencement of the Works, produce to the
Engineer the policy or policies of insurance and the receipts for payment of current
and subsequent premiums within 7 days of payment.
(b)
All insurances shall be effected with an insurer registered in the Sultanate of Oman
and in terms to be approved by the Employer whose approval shall not be
unreasonably withheld. Such terms shall exclude the exercise by the insurer of any
right of indemnity against the Employer's servants, agents or employees.
Remedy on Contractor ‘s Failure to Insure
If the Contractor shell fail to effect and keep in force the insurances referred to in clauses
17.1, l7.2 and 17.4 hereof, or any other insurance which he may be required to effect under
the terms of the Contract, then and in any such case the Employer may effect and keep in
force any such insurance and pay such premium or premiums as may be necessary for that
purpose and from time to time deduct the amount so paid by the Employer as aforesaid
from any monies due or which may become due to the Contractor, or recover the same as a
debt due from the Contractor.
18.0
LAWS AND REGULATIONS
18.1
Compliance with Laws and Regulations
the Contractor shall conform in all respects with the Laws of the Sultanate of Oman and
give all notices and pay all fees required therewith in relation to the execution of the Works
and by the Regulations of ell public bodies and companies whose property or rights are
affected or may be affected in any way by the Works and shall keep the Employer
indemnified against all penalties and liability of every kind for breach of any such Law, or
Regulations.
18.2
Assistance concerning Laws and Regulations
The Employer shell give the Contractor assistance to enable the Contractor to ascertain the
nature and extent of and to comply with any Laws, Regulations, Orders or By-Laws having
the force of law in the Sultanate of Oman, which may affect the Contractor in the
performance of his obligations under the Contrast, and will if so requested procure for the
Contractor copies thereof at the Contractor's expense.
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19.0
PATENT RIGHTS
19.1
Patent Rights
The Contractor shall fully indemnify the Employer against all claims and proceedings for
or on account of infringement of any letters patent, registered design, copyright, trade mark
or trade name or industrial property right, protected at the date of the Contract in the
Contractor’s country or in the country in which the Plant is to be erected, arising by reason
of the construction of the Works or by the use of any Plant supplied by the Contractor, but
such indemnity shall not cover any use of the Works otherwise than for the purpose
indicated by or reasonably to be inferred from the Outline Specification or any
infringement which is due to the use of any Plant in association or combination with any
other plant not supplied by the Contractor.
19.2
Claims in respect of Patent Rights
In the event of any claim being made or action brought against the Employer arising out of
the matters referred to in this Clause, the Contractor shall be promptly notified thereof and
may at his own Contractor shall be promptly notified thereof and may at his own expense
conduct all negotiations for the settlement of the same and any litigation that may arise
therefrom. The Employer shall not, unless and until the Contractor shall have failed to take
over the conduct of the negotiations or litigation, make any admission which might be
prejudicial thereto. The conduct by eth Contractor of such negotiation or litigation shall be
conditional upon the Contractor have first given the Employer such reasonable security as
shall from time to time be required by the Employer to cover the amount ascertained or
agreed or estimated, as the case may be, of any compensation, damages, expenses and costs
for which the Employer may become liable. The Employer shall, at the request of the
Contractor, afford all available assistance for the purpose of contesting any such claim or
action, and shall be repaid all reasonable expenses incurred in so doing.
19.3
Employer’s Warranty for Patent Rights
The Employer on his part warrants that any design or instructions furnished or given by
him shall not be such as will cause the Contractor to infringe any letters patent, registered
design, trade mark, copyright or industrial property right in the performance of the
Contract.
20.0
GENERAL OBLIGATIONS OF THE EMPLOYER
20.1
Access to and Possession of the Site
Subject to Sub-Clause 4 of this Clause access to and possession of the Site shall be
afforded to the Contractor by the Employer in reasonable time and, except in so far as the
Contract may provide to the contrary, the Employer shall provide the necessary right of
way suitable for the transport of all Plant and Contractor’s Equipment necessary for the
60
execution of the Works from an adequate public thoroughfare available to the Contractor to
the point on the Site where it is to be delivered or used.
20.2
Foundations
The Contractor if required by the Tender Documents shall give sufficient information as
required by the Engineer to complete the design for the foundations of all Civil Works for
the Project and shall safeguard any building structure, foundation or approach provided by
the Employer in the existing Plant (if any) for transport, reception, installation and
remedying of defects of the Works covered by this Contract and the Contractor shall be
responsible for the repair at his own expense of any damage caused by him to these
constructions, building structures, roads, etc.
20.3
Authority for Access
In the execution of the Works no persons other than the Contractor, Sub-Contractors and
his and their employees shall be allowed on the Site except by the written permission of the
Engineer but facilities to inspect the Works at all times shall be afforded to the Engineer
and his representatives and other authorities, officials or representatives of the Employer
20.4
Access not exclusive
The access to and possession of the Site referred to in Sub-Clause 1 hereof shall not be
exclusive to the Contractor but only such as shall enable him to execute the Works.
20.5
Consents Wayleaves
The Contractor shall, before the time specified for delivery of any Plant to the Site, obtain
all consents, wayleaves and approvals required in connection with the Regulations and ByLaws of local or other authorities which shall be applicable to the Works. The Employer
shall, if so required by the Contractor, provide assistance as is practicable.
20.6
Import Permits and Licenses
All import permits or licenses shall be obtained either by the Contractor or through the
Contractor’s local agent at costs to be paid by the Contractor. The Contractor shall obtain
all import permits or licenses required by any part of the Works in reasonable time having
regard to the time required for issuance from concerned authorities for the delivery of the
Plant and the completion of the Works.
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21.0
HOURS OF WORK AND RATE PROGRESS
21.1
Hours of Work
Unless otherwise provided in the Outline Specification the Employer shall five the
Contractor facilities for carrying out the Works on the Site continuously during the normal
working hours. The Engineer may, after consulting with the Contractor, direct that work
shall be done at other times if it shall be practicable in the circumstances for work to be so
done.
21.2
No Night or Holiday Work
No work shall be carried out on Site during the night or on holidays without the consent in
writing of the Engineer except if the work is unavoidable or absolutely necessary for the
saving of life or property or for the safety of the Works in which case the Contractor shall
immediately advise the Engineer. The Engineer shall not unreasonable withhold any such
consent save in exceptional circumstances, nor do so if work at night or on holidays is
considered by the Contractor to be necessary to meet the Time for Completion. The
Contractor shall reimburse the Employer for any extra costs of supervision.
21.3
Rate of Progress
(a)
If for any reason, which does not entitle the Contractor to an extension of time, the
rate of progress of the Works or any Section is at any time, in the reasonable
opinion of the Engineer, too slow to ensure completion by the Time for
Completion, the Engineer shall so notify the Contractor in writing and the
Contractor shall thereupon take such steps as are necessary and the Engineer may
approve to expedite progress so as to complete the Works or such Section by the
Time for Completion. The Contractor shall not be entitled to any additional
payment for taking such steps. If, as a result of any notice given by the engineer
under this Clause, the Contractor shall seek the Engineer’s permission to do any
work at night or on holidays, such permission shall not be unreasonable withheld
but the Contractor shall reimburse the Employer for any extra costs of supervision.
(b)
If, at any time, before the commencement or during the progress of the Works the
Contractor’s tools, plant or equipment appear to the Engineer to be insufficient,
inefficient or inappropriate to secure the quality of the work required for the proper
rate of progress, the Engineer may order the Contractor to proper rate of progress,
the Engineer may order the Contractor to increase their efficiency, substitute new
tools, plant or equipment as the case may be, and the Contractor shall comply with
such order. However, either such an order or a failure of the Engineer to demand
such increase of efficiency, number or improvement shall not relieve the
Contractor of his obligations to achieve the quality of work and the rate of progress
necessary to complete the Woks, within the time required by the Contract to the
satisfaction of the Engineer.
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21.4
21.5
Erection Progress Report
(a)
The Contractor’s agent at Site shall submit a weekly statement of the number and
qualification of the Site personnel daily employed.
(b)
He shall furthermore submit to the Engineer at monthly intervals four copies of the
detailed progress reports, including charts and photographs. These reports, shall
clearly demonstrate the work performed and manhours effected during the past
month, and the actual stage of the Works compared with the progress scheduled to
be performed during the past month and compared with the contractual progress
schedule, special events which may have occurred during the period of the said
report and the anticipated work to be performed during the coming month. These
reports shall be submitted not later than one week after the commencement of the
next month.
(c)
The Contractor’s agent shall immediately inform the Engineer in writing of special
events which may influence the smooth progress of work, and of any accidents
which may have occurred.
(d)
Periodical meetings will be held between the Employer, the Engineer and the
Contractor's agent. The frequency shall be agreed upon according to actual
requirements.
Clearance of Site on Completion
From time to time during the progress of the Works the Contractor shall clear away and
remove from the Site all surplus materials and rubbish and on completion of the Works
leave the Site in a clean and hygienic state to the satisfaction of the Engineer
22.0
LABOUR
22.1
Engagement of Labour
The Contractor shall make his own arrangements for the engagement of all labour local or
otherwise and, save in so far as the Contract otherwise provides, for the transport, housing,
feeding and payment thereof.
22.2
Supply of Water
The Contractor shall, provide on the Site, to the satisfaction of the Engineer, an adequate
supply of drinking and other water for the use of the Contractor’s staff and workpeople.
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22.3
Alcoholic Liquor or Drugs
The Contractor shall not, otherwise than in accordance with Laws of the Sultanate of Oman
for the time being in force, import, sell, give, barter or otherwise dispose of any alcoholic
liquor or drugs or permit or suffer any such importation, sale, gift, barter or disposal by his
Sub-Contractors agents or employees.
22.4
Arms and Ammunition
The Contractor shall not five, barter or otherwise dispose of to any person or persons any
arms or ammunition of any kind or permit or suffer the same as aforesaid.
22.5
Festivals and Religious Customs
22.6
The Contractor shall, in all dealings with labour in his employment, have due regard to all
recognized festivals, days of rest and religious or other customs.
Epidemics
In the event of any outbreak of illness of an epidemic nature the Contractor shall cmply
with and carry out such regulations, order and requirements as may be made by the
Government of the local medical or sanitary authorities for the purpose of dealing with and
overcoming the same.
22.7
Disorderly Conduct
The Contractor shall at all times take all responsible precautions to prevent any unlawful,
riotous or disorderly conduct by or amongst his employees and for the preservation of
peace and protection of persons and property in the neighborhood of the Works against the
same.
22.8
Safety of Workmen and Public
(a)
(b)
The Contractor shall comply with applicable Governmental safety and sanitary
laws, regulations and ordinances, as well as the established safety rules and
practices of the Employer.
The Contractor shall provide means for the protection of personnel and property,
maintain warning signs and lights, barricades, railings and other safeguards as
required by the conditions and the progress of the work.
(c)
The Contractor shall furnish and issue approved safety helmets to all workmen and
authorised personnel at Site.
(d)
All accidents shall be promptly reported to the Engineer with a copy to the
Employer.
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22.9
Observance by Sub-Contractors
The Contractor shall be responsible for observance by his Sub-Contractors of the foregoing
provisions.
22.10
Returns of Labour
The Contractor shall deliver to the Engineer at monthly intervals a return in detail, in such
form as the Engineer may prescribe, showing the supervisory staff and the numbers of the
several classes of labour employed and the Constructional Plant used from time to time by
the Contractor on the Site and such other information as the Engineer may require.
23.0
WORKMANSHIP AND MATERIALS
23.1
Manner of Execution
23.2
(a)
All Plant to be supplied and all work to be done under the Contract shall be
manufactured and executed in the manner set out in the approved Drawings and
Specifications and other Contract Documents or where not so set our, all work on
Site shall be carried out to the satisfaction of the Engineer in accordance with such
directions as the Engineer may give.
(b)
The work shall be executed in the best and most workmanlike manner by qualified,
careful and efficient personnel.
(c)
If the Contractor desires to propose a method or to use material or Equipment other
than that specifically described in the Outline Drawings and Specification, he shall in
all cases submit the same for considerations to the Engineer and he shall not make
the substitution unless approved by the Engineer in writing. If the substitute offered
is not approved by the Engineer, the Contractor is bound to furnish the component
under consideration in compliance with the Outline Drawings and Specification.
Approval of any substitute shall not relieve the Contractor of his contractual
obligations.
Quality of Materials
(a)
(b)
(c)
All equipment and material shall be unused and the best in quality of their respective
kinds.
All Plant shall be treated to resist deterioration due to the severe prevailing local
conditions. Such treatment shall include but not be restricted to extra coatings of
protective materials, insulations, etc.
All materials buried under the ground shall be suitable to withstand the actual soil
conditions.
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24.0
ADVERSE PHYSICAL CONDITIONS AND ARTIFICIAL OBSTRUCTIONS
If during the execution of the Works the Contractor shall encounter physical conditions,
other than climatic conditions, or artificial obstructions, which conditions or obstructions
could, in his opinion, not have been reasonably foreseen by an experienced Contractor then
the Contractor shall forthwith give written notice thereof to the Engineer and if, in the
opinion of the Engineer, such conditions or artificial obstructions could not have been
reasonably foreseen by an experienced Contractor, then the Engineer shall subject to
Clause 2.1 hereof certify and the Employer shall pay the additional cost to which the
Contractor shall have been put by reason of such conditions, including the proper and
reasonable cost of:
(a) Complying with any instruction which the Engineer may issue to the Contractor in
connection therewith; and
(b)
Any proper and reasonable measures approved by the Engineer which the Contractor
may take in the absence of specific instructions from the Engineer, as a result of such
conditions or obstructions being encountered.
25.0
TESTING OF PLANT
25.1
Inspection and Testing during Manufacture
Unless otherwise agreed in the Contract the Engineer shall be entitled during manufacture
to inspect, examine and test on the Contractor’s premises during working hours, the
materials and workmanship and check the progress of manufacture of all Plant to be
supplied under the Contract, and if part of the said Plant is being manufactured on other
premises the Contractor shall obtain for the Engineer permission to inspect, examine and
test as if the said Plant were being manufactured on the Contractor’s premises. Such
inspection, examination or testing, if made, shall not release the Contractor from any
obligation under the Contract.
25.2
Dates for Inspection and Testing
The Contractor shall notify the Engineer in writing within twenty one (21) days in advance
of the date on and the place at which any Plant will be ready for testing. Should any
postponement become necessary the Contractor shall provide written notification of same
at least 72 hours prior to the originally scheduled date. The Engineer shall give the
Contractor 48 hours’ notice in writing of their intention to attend the test, or ask for a
postponement of not more than 72 hours if required
Should the Engineer not attend the tests at the place named and at the date which the
Contractor has stated in his notice the Contractor may proceed with the test, which shall be
deemed to have been made in their presence and shall forthwith forward to them duly
certified copies of the test readings.
25.3
Facilities for Testing at Manufacturer’s Works
Where the Contract provides for tests on the premises of the Contractor or any SubContractor the Contractor shall provide such assistance, labour, materials, electricity, fuel,
66
stores, apparatus, and instruments as may be necessary and as may be reasonably
demanded to carry out such test efficiently.
25.4
Certificate of Testing
As and when the Plant shall have passed the tests referred to in this Clause the Engineer
shall furnish to the Contractor a certificate in writing to that effect.
The Contractor shall furnish copies of the relevant test data relating to the test carried out
to be distributed in accordance with the Outline Specifications.
25.5
Rejection
(a)
If as a result of such inspection, examination or test of the Plant other than Clause
29.0 (Tests on Completion) the Engineer shall decide that such Plant is defective or
not in accordance with the Contract he shall notify the Contractor accordingly
stating in writing his objection and reasons therefor. The Contractor shall with all
speed make good the defect or ensure that the Plant complies with the Contract.
Thereafter, if required by the Engineer, the tests shall be repeated under the same
terms and conditions save that all reasonable expenses to which the Employer may
be put by the repetition of the tests shall be deducted from the Contract price.
(b)
Upon reasonable request of the Engineer the Contractor shall furnish to the
Engineer for approval, adequate samples of all devices, hardware, material finishes
etc. to be used in the Works Such samples shall be submitted within a reasonable
period of time to permit tests and examination thereof. All items and materials
installed and finally supplied shall be identical to the approved samples. Samples
of devices, hardware material and similar items will be returned to the Contractor,
if requested, for incorporation into the Works.
(c)
Should the Engineer be of the opinion that the material, equipment or
workmanship inspected or tested does not comply with the Specification or the
best engineering practice, they shall notify in writing the Contractor of their
objections. The Contractor shall rectify and remove the causes of such objections
and the inspection or test shall be repeated. Rejected or objected material,
equipment or workmanship shall not release the Contractor from his obligations
nor shall any extension of time be allowed.
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25.6
25.7
Inspection Authority
(a)
The Employer may appoint an independent “Inspection Authority” for the carrying
out of material and equipment inspection and testing.
The Provisions as specified under Clause 25.0 (Testing of Plant) shall apply to the
Inspection Authority appointed. Such Inspection Authority will not substitute the
work of any inspection normally carried out by the Contractor/Sub-Contractor or
those tests carried out according to rules, regulation, and practices of the
manufacturing country.
(b)
Travelling expenses as defined in Clause 12.4 (Advanced Detailed Progress of
Plant Schedule) herein shall apply to the independent Inspection Authority
No Reduction of Liability
Any decision, instruction, rejection or approval by the Engineer or the Inspection Authority
shall not release the Contractor from his obligations to execute the Works in accordance
with the Contract.
26.0
DELIVERY OF PLANT
26.1
Delivery
Unless the Engineer shall otherwise direct, no Plant shall be delivered to Site until the
Engineer shall have issued, in respect of such Plant, a certificate under Clause 25.4
(Certificate of Testing). Such Plant shall be delivered to Site only upon an authorization in
writing applied for and obtained by the Contractor from the Engineer.
The Contractor shall be responsible for the reception on Site of all Plant delivered for the
purposes of the Contract.
26.2
Packing and Marking
(a)
All Plant shall be packed in first quality seaworthy containers or packings and no
secondhand timber shall be used.
(b)
All packing must be suitable for transport from factories to the port of embarkation
and sea/air freight, rough handling at the port of destination, inland transport and
movement to and on the Site.
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(c)
All Plant together with the applicable instruction books, packing lists and special
site storage instructions, shall carefully be boxed, crated or otherwise adequately
protected for overseas shipment. Flanges, studs and exposed machine finished
surfaces shall be thoroughly greased and protected before shipment. All tubes,
pipes, nozzles, conduits etc. shall be properly sealed with caps against ingress of
moisture, dirt and other foreign matter. All Plant susceptible to damage by water or
high humidity shall be encased in watertight and/or airtight rugged containers;
suitable desiccants shall be placed inside each air-tight container to ensure a low
humidity atmosphere therein.
(d)
Special provisions shall be made by the Contractor to take into account the
prevailing local conditions.
(e)
Shipping weights and dimensions of each box or package shall be determined in
such a way as to facilitate handling.
(f)
All boxes, case and/or bundles containing Plant shall be clearly marked on all sides
ad further identified by a broad coloured band completely running around the box.
The colour of band and serial number of the different components shall be
proposed by the Contractor and shall be subject to the Engineer’s approval.
(g)
The markings on the box, case and/or bundle shall be carried out by means of
block letters not less than 30mm high to be stenciled to the box, case and/or bundle
with black indelible paint with the following information:
1.
EMPLOYER
: GOVERNMENT OF SULTANATE OF
OMAN MINISTRY OF________________
2.
3.
4.
5.
6.
7.
8.
9.
10
PROJECT
CONTRACT REFERENCE NO.
CONTRACTOR*
SUB-CONTRACTOR*
PORT OF DESTINATION
CONSIGNMENT SERIAL NO.
GROSS WEIGHT
NET WEIGHT
SIZE OF BOX
(LENGTH X WIDTH X HEIGHT)
BRIEF INDICATION
OF CONTENTS*
:
:
:
:
:
:
:
:
11.
:
:
______________________________________________________________________________
*delete where not applicable
69
26.3
Shipping Documents
(a) The Contractor shall submit complete and full shipping documents soonest after
shipping, in order to reach the Employer and the Engineer before the arrival of the
ship. Responsibility for delays, loss or damages of shipping documents shall rest with
the Contractor.
(b) The shipping documents shall be distributed as follows:
________________________________________________________________________
FOR THE
FOR THE
Documents
EMPLOYER
ENGINEER
_________________________________________________________________________
Shipping Invoice for the consignment
-
Original
Copy
1
3
2
Packing List
1
2
2
1
2
1
1
2
1
1
2
Confirmation of Declaration of Insurance
1
2
Certificate of Inspection as approved by
by the Engineer or Inspection Authority if
applicable
1
2
Bill of Lading
-
Original
Copy
Certificate of Origin
-
Original
Copy
Manufacturer’s Certificate as
per Boycott Status (Clause 4.2(d)
Compliance with Laws)
-
Original
Copy
_________________________________________________________________________
One set of complete shipping documents including the second original Bill of Lading shall
be airmailed direct to the Employer within seven days of the departure of the ship.
70
26.4
Transport to Port of Embarkation, Loading and Unloading
The contractor shall arrange and provide for the transport of the Plant from the
manufacturer’s works to the port of embarkation. The Contractor shall assign special
personnel to supervise the transport, loading and unloading of Plant and they shall have the
necessary skill and take all care in the performance of their duties.
26.5
Overseas Transport
When carrying out overseas transport either by sea by air the special provisions, laws and
regulations concerning transportation shall be taken into consideration.
26.6
(a)
The contractor shall be responsible for the selection of the overseas transport
media as well as for the whole transport period. The transport shall be carried out
at his own risk.
(b)
Sensitive and delicate parts of the Plant shall, wherever possible, be transported by
air.
(c)
Should the manufacture and/or supply of any Plant as well as any Contractor’s
equipment or tools required for the works be delayed with respect to the relevant
time schedules, the Contractor air-freight at no extra cost to the Employer.
Local Transport
(a)
The Contractor shall arrange and carry out under his own responsibility and
supervision the local transport from the port of disembarkation to the Site.
(b)
The Contractor shall, at his own convenience gather all necessary information and
arrange for all necessary provisions in order to obtain accurate information about
unloading at the specified port, inland transport facilities as well as all prevailing
local conditions, specifically the safe load bearing capacity of highways and
bridges. The Contractor shall bear every and all expenses related herewith.
(c)
The unloading and storage at site shall be carried out by the Contractor who for
this purpose shall make all necessary provisions and arrange for all necessary
equipment.
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26.7
26.8
Receiving and Damage Reports
(a)
The Contractor shall submit a receiving report to the Engineer to cover each
individual shipment received and checked at the Site. Each shipment on arrival at
Site shall be unloaded, opened and carefully checked for any damage in transit and
the Contractor shall immediately submit a damage report, countersigned by the
Engineer, to the Insurance Company with copies to the Employer and the engineer.
Where damage has occurred in marine transport, insurers and/or their agents
should be notified immediately of the damage in writing and it will be the
Contractor’s own responsibility I he fails to do so.
(b)
In all cases of irrepairable damage, the Contractor shall immediately notify the
relevant manufacturer for renewed manufacture and replacement of the damaged
part(s). he shall also immediately notify the Employer and the Engineer of the
actions he is going to undertake in order to repair or replace the damaged part(s)
and of the consequences this damage will have on the completion date of the
Works.
Unloading and Storage at Site
(a)
The Contractor shall carefully unload all imported Plant at the Site from trucks and
trailers and delivery vehicles including barges if any, as the case may be. Items of
permanent installation shall be properly and neatly stored in areas designated by
the Engineer and shall be protected to prevent damage or deterioration of any type.
Storage methods shall be such as the cause minimum inconvenience to others and
shall be arranged to facilitate inspection and withdrawing from stores. All facilities
for Plant storage shall be subject to the approval of the Engineer.
(b)
All packing boxes, blanking, covering, etc., shall become the property of the
Employer as soon as the Plant which is contained therein arrives at Site. The
Contractor shall take care of such items and dispose or otherwise at the direction of
the Engineer. The Employer, on application from the Contractor, may permit the
Contractor to use some of the boxes, etc., for Plant storage purposes after the items
are installed or erected by the Contractor.
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27.0
SUSPENSION OF WORKS
27.1
Order to Suspend Progress
The Contractor shall, on the written order of the Engineer, suspend the progress of the
works or any part thereof for such time or times and in such manner as the Engineer may
consider necessary, and shall during such suspension properly protect and secure the
Works so far as is necessary in the opinion of the Engineer. The extra cost, including that
occasioned by the subsequent resumption of work incurred by the Contractor in giving
effect to the Engineer’s instructions under this Clause, shall be borne and paid by the
Employer unless such suspension is:
(a)
Otherwise provide for in the Contract, or
(b)
Necessary by reason of some default on the part of the Contractor, or
(c)
Necessary by reason of abnormal climatic conditions on the Site, or
(d)
Necessary for the proper execution of the Works or for the safety of the Works or
any part thereof in so far as such necessity does not arise from any act or default by
the Engineer or form any of the excepted risks.
Provided that the Contractor shall not be entitled to recover any such extra cost unless
within 28 days after receipt of the order to suspend progress of the Works he gives to the
Engineer notice in writing of his intention to make such claim.
27.2
Payment for Plant when Progress Suspended
If work on the Plant or any Portion thereof is suspended as aforesaid by the Engineer
before the Plant or such Portion thereof is delivered to the Site and the suspension exceeds
three months and the Contractor has taken over such Plant as referred to in Clause 17.1
(Insurance of Works) and the Contractor has suitable and sufficiently marked the Plant or
such Portion thereof as the Employer’s property and insurance has been effected in
accordance with Clause 17.0 (Insurances, Regulations and Patent Rights) (the provisions of
which shall thereafter until actual delivery to the Site apply as if the Plant or such Portion
thereof was for the time being upon the Site) then the Contractor shall be entitled to have
the Contract Price thereof as at the commencement of the suspension include in an interim
certificate on the expiration of the said three months or (if later) at the time when, but for
such suspensions, the Plant or such Portion thereof would have been delivered; provided
this Sub-Clause shall not apply if the suspension is within paragraphs (a), (b) or (c) of SubClause 1 of this Clause; and further provide that the Contract Price of any Plant that
according to the decision of the Engineer is defective or not in accordance with the
Contract shall not be include in such Certificate.
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27.3
Resumption of Work
If the progress of the Works or any Section thereof is suspended pursuant to Sub-Clause 1
of this Clause and if permission to resume work is not given by the Engineer within 90
days after the date of suspension, then unless the suspension is within paragraphs (a), (b),
(c) or (d) of that Sub-Clause, the Contractor may serve notice in writing on the Engineer
requiring permission within 28 days after receipt thereof to proceed with the Works or the
Section in regard to which progress is suspended and, if such permission is not granted
within that time, the Contractor may by a further notice in writing to the Engineer elect or
treat the suspension where it affects a Section of the Works as an omission of such Section
under Clause 34 (Variations) or where the suspension affects the whole of the Works as an
abandonment of the Contract by the Employer.
28.0
DEFECTS BEFORE TAKING OVER
If, in respect of any Section or Portion of the Works not yet taken over, the Engineer shall
at any time:
(a)
Decide that any work done or Plant supplied or materials used by the Contractor or
is or are defective or not in accordance with the Contract, or that such Section or
Portion of the Works is defective or does not fulfill the requirements of the
Contract (all such matters being hereinafter in this Clause called ‘defects’), and
(b)
As soon as reasonably practicable give to the Contractor notice in writing of the
said decision specifying particulars of the defects alleged and of where the same
are alleged to exist or to have occurred, and
(c)
So far as may be necessary place the Plant at the Contractor’s disposal,
then the Contractor shall with all speed and, at his own expense, make good the defects so
specified. In case the Contractor shall fail so to do the Employer may, provided he does so
without undue delay, take at the cost of the Contractor such steps as may in all the
circumstances be reasonable to make good such defects. All Plant provided by the
Employer to replace defective Plant shall comply with the Contract and shall be obtained at
reasonable to make good such defects. All Plant provide by the Employer to replace
defective Plant shall comply with the contract and shall be obtained at reasonable prices
and where reasonably practicable under competitive conditions. The Contractor shall be
entitled to remove and retain all defective Plant that the Employer may have replaced at the
Contractor’s cost. Nothing contained in this Clause shall affect any claim by the employer
under Clause 31.0 (Delays in Completion).
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29.0
TESTS ON COMPLETION
29.1
Notice of Tests
The Contractor shall give to the Engineer, with a copy to the Employer, 21 days’ notice in
writing of the date after which he will be ready to make the tests on Completion. Unless
otherwise agreed the tests shall take place within 10 days after the said date on such day or
days as the Engineer shall notify the Contractor in writing.
29.2
Time for Tests
If the Engineer fails to appoint a time after having been asked so to do or to attend at any
time or place duly appointed for making the said tests then the Contractor shall be entitled
to proceed in his absence and the said tests shall be deemed to have been made in the
presence of the Engineer and the results of the tests shall be accepted as accurate.
29.3
Delayed Tests
If in the opinion of the Engineer the tests are being unduly delayed he may, by notice in
writing, call upon the Contractor to make such tests within 21 days from the receipt for the
said notice, and the Contractor shall make the said tests on such days within the said 21
days as the Contractor may fix and for which he shall give advance notice to the Engineer.
If the Contractor fails to make such tests within the time aforesaid the Engineer may
himself proceed to make the tests. All tests so made by the Engineer shall be at the risk and
expense of the Contractor unless the Contractor shall establish that the tests were not being
unduly delayed in which case tests so made shall be at the risk and expense of the
Employer.
29.4
Facilities for Tests on Completion
The Contractor, except where otherwise specified, shall provide free of charge such labour,
materials, electricity, fuel, water, stores and apparatus as may be requisite and as may be
reasonably demanded to carry out such tests efficiently.
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29.5
Repeat Tests
If any Portion of the Works fails to pass the tests, then test of the said Portion shall, if
required by the Engineer or by the Contractor, be repeated within a reasonable time upon
the same terms and conditions, save that all reasonable expenses to which the Employer
may be put by the repetition of the tests shall be deducted from the Contract Sum.
29.6
Consequences of Failure to Pass Tests on Completion
If the Works or any Section or Portion thereof shall fail to pass the tests on the repetition
thereof under Sub-Clause 5 of this Clause the Engineer shall be entitled:
(a)
To order a further repetition of the tests under the conditions of Sub Clause 5, or
(b)
To reject the Works or Section or Portion thereof in accordance with Clause 28.0
(Defects before Taking Over) if the results of the tests show that the Works or the
Section or Portion fail to meet the performance guarantees or the agreed tolerances
specified in the Outline Specification or if there are no such guarantees or tolerances,
the results show that the Works or the Section or Portion are not in accordance with
the Contract, or
(c)
To issue a Taking Over Certificate, if the Employer so wishes, subject to such
reduction of the Contract Sum as may be provided in the Contract or, failing such
provision, as may be agreed by the Employer and the Contractor or, failing
agreement, as may be determined by Arbitration under Clause 49.2 (Notice for
Arbitration).
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30.0
EXTENSION OF TIME FOR COMPLETION
If by reason of:
(a)
Extra or additional work, or
(b)
Exceptional adverse weather conditions unforeseen at the time the Contract was
signed, or
(c)
Employer’s instructions beyond those specified in this Contract, or
(d)
Delay by any other contractor engaged by the Employer, or
(e)
Any suspension of the Works under Clause 27.0 (Suspension of Works), or
(f)
Any cause, except as may otherwise be provided in the Contract, beyond the
reasonable control of the Contractor,
the Contractor shall have been delayed or impeded in the completion of the works,
whether such delay or impediment occurred before or after the time or extended
time fixed for completion, provided that the Contractor shall without delay have
given to the Employer or the Engineer notice in writing of his claim for an
extension of time, the Engineer shall on receipt of such notice and supporting
detailed particulars of the claim grant the Contractor form time to time in writing
either prospectively or retrospectively such extension of time fixed by the Contract
for the completion of the Works as may be justified subject to Clause 2.1 hereof.
Any delay on the part of a Sub-Contractor which prevents the Contractor from
completing the Works within the time fixed by the Contract for the completion of
the works shall entitle the Contractor to an extension thereof as if such delay was
due to any cause for which the Contractor himself would have been entitled to an
extension of time under this Clause.
31.0
DELAYS IN COMPLETION
31.1
Penalty for Delay in Completion
If the Contractor shall fail to complete the Works in accordance with the Contract for the
remedying or defects as provide in Clause 32.1 (Taking Over Certificate) and such tests as
are to be made in accordance with Clause 29.0 (Tests on Completion) within the Time for
Completion or any extension of such time, there shall be deducted from the Contract Price
by way of penalty, a sum of money equal to the sum named in the Appendix to the Form of
Tender for each day between the time for Completion of the Works as aforesaid and the
actual date of completion.
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31.2
Prolonged Delay
If the Works or any Portion of the Works in respect of which the Employer has become
entitled to the maximum amount of the penalty under Sub-Clause 1 of this Clause remains
uncompleted the Engineer may by notice in writing to the Contractor require him to
complete and by such notice fix a final time for completion which shall be reasonable
having regard to such delay as has already occurred. If for any reason, other than for which
the Employer or some other Contractor employed by his is responsible, the Contractor fails
to complete within such time, the Engineer may by further written notice to the Contractor
elect either:
(a)
To require the Contractor to complete, or
(b)
To terminate the Contract in respect of such Portion of the Works, or
(c)
To terminate the Contract in respect of the whole of the Works,
and recover a penalty from the Contractor by reason of the said failure the total amount
stated in the Appendix to the Form of Tender for the prolonged delay or in the event of a
termination concerning the whole of the Works then the Employer shall recover from the
Contractor in addition to the Penalty for the prolonged delay the whole of the Contract
Price for that part relating to the said Portion.
The Employer may without prejudice to any other method of recovery deduct the amount
of such penalties from any monies in his hands due or which may become due to the
Contractor. The payment or deduction or such penalties shall not relieve the Contractor
from his obligation to complete the Works or form any other of his obligations and
liabilities under the Contract.
31.3
Engineering Services
If the Contractor shall fail to achieve completion of the Works within the time prescribed
by Clause 7.1 (General Obligations) hereof, then the Contractor shall pay to the employer
the sum stated in the Appendix to the Form of Tender as a payment for extended
Engineering Services for every day or part of a day which shall elapse between the time
prescribed by Clause 7.1 hereof and the date of certified completion of the whole Works.
The Employer may, without prejudice to any other method of recover, deduct the amount
of such compensation form any monies in his hands, due or which may become due to the
Contractor.
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32.0
TAKING OVER
32.1
Taking Over Certificate
As soon as the Works have been completed in accordance with the Contract [except in
minor respect that do not affect their use for the purpose for which they are intended and
save for the obligations of the Contractor under Clause 33.0 (Defects after Taking Over)]
and have passed the Tests on Completion, the Engineer shall issue a certificate to the
Contractor, with a copy to the Employer, (herein called a ‘Taking Over Certificate’) in
which he shall certify the date on which the Works have been so completed and have
passed the said tests, and the Employer shall be deemed to have taken over the Works on
the date so certified whereupon title to and risk of loss or dame to the Works or any
Section or Portion thereof shall, subject to the provisions of Claus 15.0 (Liability for
Accidents and Damage) and Clause 33.0 hereof, pass to the Employer, but the issue of a
Taking Over Certificate shall not operate as an admission that the works have been
completed in every respect. In the event of the works being divided by the Contract into
two or more Sections the employer shall be entitled to take over any Section or Sections
before the other or others and thereupon the Engineer shall issue a Taking Over Certificate
in respect thereof. Save as provided in Sub-Clause 3 of this Clause the Employer shall not
use the Works or any Section or Portion thereof until a Taking Over Certificate has been
issued in respect thereof. If nevertheless the Employer does so use the Works or any
Section or Portion thereof the Works or Section or Portions shall be deemed to have been
taken over.
32.2
Taking Over by Portions
If by agreement between the Employer the Engineer and the Contractor any Portion of the
Works (other than a Section or Sections) shall be taken over before the remainder of the
Works and Engineer shall issue a Taking-Over Certificate in respect of that Portion.
32.3
Use before Taking Over
If, by reason of any default on the part of the Contractor, a Taking Over certificate has not
been issued in respect of every Portion of the Works within one month after the Time for
Completion the Employer shall be at liberty to use the Works o any Section or Portion
thereof in respect of which a Taking Over Certificate has not been issued if and so long as
the Works or the Portion so used as aforesaid shall be reasonably capable of being used
provided that the Contractor shall be afforded the earliest possible opportunity to taking
such steps as may be necessary to permit the issue of the Taking Over Certificate. The
Provisions of Clause 15.1 (Care of the Works) shall not apply to any Portion of the Works
while being so used by the Employer.
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32.4
Interference with Tests
(a)
If, by reason of any act or omission of the Employer or the Engineer, the
Contractor shall be prevented for a consecutive period of 30 days from carrying
out the Tests on Completion as provided for in Clause 29.0 (Tests on Completion)
hereof then, the Employer shall pay to the Contractor such reasonable expenses
occasioned by such delay but he Contractor such reasonable expenses occasioned
by such delay but the Contractor shall take such steps as are necessary to reduce
such expenses to the minimum amount. Nevertheless, the Contractor shall make
the said tests as and when required by the Engineer and by the giving of 14 days’
notice in writing and the relevant Sub-Clauses of Clause 29.0 shall apply. Any
additional expense to which the Contractor may be put to in making the said tests
pursuant to this Sub-Clause, and such allowance shall be made to the performance
required to be attained in the said tests, as may be reasonable, having regard to the
delay in time or any use of the Works by the Employer prior to the tests.
(b)
However, if, on the date when the Contractor notified the Engineer that Tests on
Completion are ready to start, the Engineer considers that the Works are not
substantially complete in accordance with the Contract or ready to make the Tests
on Completion then Clause 31.1 (Penalty for Delay in Completion) hereof shall
apply until such date the Engineer decides that the Works are substantially
complete in accordance with the Contract and are ready to make the Tests on
Completion and the period of 30 days shall commence from the date so decided
and the payment of a penalty (if any) by the Contractor shall cease.
(c)
When the Engineer or the Employer shall notify the Contractor that Tests on
Completion shall commence then the Contractor shall make ready the Works in
accordance with Clause 29.0 (Tests on Completion) hereof. In such a case, the
Time for Completion of the Works shall be extended for the period certified by the
Engineer as being due to the act or omission of the Employer or the Engineer.
33.0
DEFECT AFTER TAKING OVER
33.1
Defect Liability Period
In these Conditions the expression ‘Defects Liability Period’ shall mean the period stated
in the Appendix to the Form of Tender or if non period is stated then 12 months calculated
from the date certified in the Taking Over Certificate issued in accordance with Clause
32.0 (Taking Over) or, in the event of more than one certificate having been issued by the
Engineer under the said Clause, from the respective dates so certified, and in relation to the
Defect Liability Period the expression ‘the Works’ shall be construed accordingly.
Provided that, if any outstanding work is to be finished during the Defects Liability Period,
the Period of Defects Liability shall commence from the date of their completion as
certified in writing by the Engineer to the Employer.
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33.2
Making Good Defects
The Contractor shall be responsible for making good with all possible speed at his own
expense any defect in or damage to any portion of the Works which may appear or occur
during the Defects Liability Period and which arises either:
33.3
(a)
As a result of the work or actions of Others.
(b)
From any act or omission of the Contractor done or omitted during the said period.
Notice of Defects
If any such defect shall appear or damage occur the Employer or the Engineer shall
forthwith inform the Contractor thereof stating in writing the nature of the defect or
damage. The provisions of this Clause shall apply to all replacements or renewals carried
out by the Contractor to remedy defects and damage as if the said replacements and
renewals had been taken over on the date they were completed to the satisfaction of the
Engineer but not so as to extend the Defects Liability Period in respect thereof beyond two
years from the date of taking over or such other greater period as may be stated in the
Appendix to the Form of Tender.
33.4
Extension of Defects Liability Period
The Defects Liability Period shall be extended by a period equal to the period during which
the Works (or that Portion thereof in which the defect or damage to which the Clause
applies has appeared or occurred) cannot be used by reason of that defect or damage and
(in the case of any further defect or damage to such Portion occurring during any such
extension), to extend the Defects Liability Period during which the Works or that Portion
cannot be used by reason of the defect or damage.
33.5
Delay in Remedying Defects
If any such defect or damage be not remedied within a reasonable time, the Employer may
proceed to do the work at the Contractor’s risk and expense provided that he does so in a
reasonable manner.
33.6
Removal of Defective Work
The Contractor may with the consent of the Engineer remove from the Site any Portion of
the Works which is defective or damaged if the nature of the defect or damage is such that
repairs cannot be expeditiously carried out on the Site.
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33.7
Further Tests on Completion
If the replacements or renewals are of such a character as may affect the efficiency of the
Works or any Portion thereof, the Employer may within one month of such replacement or
renewal give to the Contractor notice in writing requiring that Tests on Completion be
made, in which case such tests shall be carried out as provide in Clause 29.0 (Tests on
Completion).
33.8
Conditions Applicable
These Standard Conditions of Contract shall apply to all inspections, adjustments,
replacements and renewals and to all tests occasioned thereby, carried out the Contractor
pursuant to this Clause.
33.9
Right of Access
Until the final certificate of payment shall have been issued, the Contractor shall have the
right of access to all parts of the Works for the purpose of inspecting the working thereof
and to records of the working and performance thereof for the purpose of inspecting the
same and taking notes therefrom during normal working hours, at his own risk and
expense, for himself or his duly authorized representatives, whose names shall have
previously been communicated in writing to the Engineer. The Contractor may at his own
risk and expense make any test which he considers desirable subject to the Engineer’s
approval, which shall not be unreasonable withheld.
33.10
Contractor to Search
The Contractor shall, if required by the Engineer in writing, search for the cause of any
defect, imperfection or fault under the direction of the Engineer. Unless such defect,
imperfection or fault shall be one for which the Contractor is liable under the Contract, the
cost of the work carried out shall be borne by the Employer. But if such defect,
imperfection or fault shall be shown to be one for which the Contractor is liable as
aforesaid the cost of the work carried out in searching aforesaid shall be borne by the
Contractor.
33.11
Claims for Loss or Damage after Defects Liability Period
(a)
Subject to Clause 33.12 hereof, it is expressly agreed that the Employer shall have
no claim in respect of damage to or loss of property not forming part of the Works
arising after the expiration of the Defects Liability Period nor for loss of profit
unless it is shown form the circumstances of the case that the Contractor has been
guilty of misconduct and the circumstances giving rise to the claim occur within
four years after the date of taking over. The Contractor shall have no liability under
this Sub-Clause in respect of any claim unless notice thereof has been given by the
Employer to the Contractor within 90 days after the event giving rise to the claim.
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(b)
33.12
The liability of the Contractor shall continue for a period of 1 year from the date of
the ‘Final Acceptance Certificate’ for the relevant part of the Works. However, in
the case of defects in the design or defects in Plant equipment or materials
adversely affecting either the structure or the safety of the Works, the liability of
the Contractor shall continue for a period of 10 years from the date of the
Completion of the Defects Liability Period for the whole of the Works.
Misconduct
‘Misconduct’ comprises any and every lack of care or skill, and means an act or omission
on the part of the Contractor resulting from either a failure to pay due regard to the serious
consequences of an cat or omission which a conscientious and reasonable Contractor
would foresee as likely to ensure, or a deliberate disregard of any consequences of such act
or omission.
33.13
Liability after Taking Over
Save as provided under this Clause and Clause 15.0 (Liability for Accidents and Damage)
the Contractor shall be under no liability in respect of defects in or damage to the Works or
any Section thereof has been taken over.
34
VARIATIONS
34.1
Engineer’s Power to Vary
The Engineer shall make any variation that may have been approved by the Employer to
the form, quality or quantity of the Works or any part thereof and he shall have power
subject to Clause 2.1 (Engineers Duties) to order the Contractor to do and the Contractor
shall do any of the following:
(a)
Increase or decrease the quantity of any work included in the Contract.
(b)
Omit any such work.
(c)
Change the character or quality or kind of any such work.
(d)
Change the levels, lines, position and dimensions of any part of the Works; and
(e)
Execute additional work of any kind necessary for the completion of the Works.
and no such variation shall in any way vitiate or invalidate the Contract, but the value, if
any, of all such variations shall be taken into account in ascertaining the amount of the
Contract Price.
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34.2
Orders for Variations to be in Writing
No such variations shall be made the by the Contractor without an order in writing of the
Engineer. Provided also that if for any reason the Engineer shall consider it desirable to
give any such order verbally, the Contractor shall comply with such order and any
confirmation in writing of such verbal order given by the Engineer, whether before or after
the carrying out of the order, shall be deemed to be an order in writing within the meaning
of this Clause. Provided further that if the Contractor shall within seven days confirm in
writing to the Engineer and such confirmation shall not be contradicted in writing within a
further fourteen days by the Engineer, it shall be deemed to be an order in writing by the
Engineer.
34.3
Valuation of Variations
All extra or additional work done or work omitted by order of the Engineer shall be valued
at those rates and prices set out in the Contract id, in the opinion of the Engineer, the same
shall be applicable. If the Contract does not contain any rates or prices applicable to the
extra or additional work then suitable rates or prices shall be agreed upon between the
Engineer and the Contractor.
34.4
Power of Engineer to Fix Rates
Provided that if the nature or amount of any omission or addition relative to the nature or
amount of the whole of the Works or to any part thereof shall be such that, in the opinion
of the Engineer, the rate or price contained in the Contract for any item of the Works is, by
reason of such omission or addition, rendered unreasonable or inapplicable, then a suitable
rate or price shall be agreed upon between the Engineer and the Contractor. In the event of
disagreement the Engineer shall fix such other rate or price as shall, in his opinion, be
reasonable and proper having regard to the circumstances.
Provided also that no increase or decrease under Sub-Clause 1 of this Clause or variation
rate or price under Sub-Clause 2 of this Clause shall be made unless, as soon after the date
of the order as is practicable but not later than seven days and in the case of extra or
additional work, before the commencement of the work or as soon thereafter as is
practicable but not later than seven days, notice shall have been given in writing:
(a)
By the Contractor to the Engineer of his intention to claim extra payment or a varied
rate or price.
(b)
By the Engineer to the Contractor of his intention to vary a rate or price.
84
34.5
Variations Exceeding 10 per cent
If, on certified completion of the whole of the Works it shall be found that a reduction or
increase greater than ten per cent of the Contract Sum excluding all provisional sums and
allowance for dayworks, and adjustments of price made under Clause 52.1 (Changes in
Cost and Legislation) hereof if any, results from the aggregate effect of all Variation
Orders, but not from any other cause, the amount, beyond ten per cent of the said adjusted
Contract Sum shall be subject to amendment by such sum as may be agreed between the
Contractor and the Engineer or, failing agreement, fixed by the Engineer having regard to
all material and relevant factors, including the Contractor’s Site and general overhead costs
of the Contract.
34.6
Notice and Confirmation of Variations
If the Engineer shall make any variation in any part of the Works such reasonable notice in
writing shall be given to the Contractor as will enable him to make his arrangements
accordingly. In cases where Plant is already manufactured or in the course of manufacture,
or any work done or Drawings or patterns made which require to be altered, a reasonable
sum in respect thereof shall be allowed by the Engineer. If, in the opinion of the
Contractor, any variation is likely to prevent or prejudice the Contractor form fulfilling any
of his obligations under the Contract, he shall notify the Engineer thereof in writing the
Engineer shall decide forthwith whether or not the same shall be carried out. If the
Engineer confirms his instructions in writing the said obligations shall be modified to such
an extent as may be justified. Until the Engineer so confirms his instructions they shall be
deemed not to have been given.
34.7
Progress with Variation
On receipt of the Engineer’s confirmation of instructions in respect of any variation the
Contractor shall subject to Clause 2.1 (Engineers Duties) immediately proceed to carry out
such instructions. The work shall not, without the consent of the Engineer, be delayed by
the Contractor pending finalization of the price of the variation.
34.8
Claims for Additional Payment for Variations
The Contractor shall send to the Engineer, once in every month, an account giving
particulars (as full and detailed as possible) of all claims for any additional payment to
which the Contractor may consider himself entitled and of all extra or additional work
ordered by the Engineer which he has executed during the preceding month. No claim for
payment (interim or final) will be considered unless included in such account. Provided
always that the Engineer shall be entitled to authorize payment to be made notwithstanding
the Contractors’ failure to comply with these Conditions, if the Contractor has at the
earliest practicable opportunity notified the Engineer that he intends to make a claim.
85
34.9
Cancellation of the Works
No claim will be allowed for loss of prospective profits on any cancelled Section or Portion
of the Works provided that the cancellations do not exceed ten (10) percent of the total
Contract Sum.
The written agreement between the Employer and the Contractor on modifications,
variations, or changes shall constitute an integral part of the Contract.
35.0
VESTING OF PLANT AND CONTRACTOR’S EQUIPMENT
35.1
Ownership of Plant
Plant supplied or to be supplied pursuant to the Contract shall become the property of the
Employer at whichever is the earlier of the following times:
35.2
(a)
When Plant is appropriated to the Contract;
(b)
When by virtue of Clause 26.0 (Delivery of Plant) or Clause 27.0 (Suspension of
Works) the Contractors becomes entitled to require that the cost of the Plant be
included in an interim certificate; or
(c)
When Plant is delivered to the Site pursuant to the Contract.
Marking of Plant
Where the property in Plant passes to the Employer prior to the delivery to the Site of such
Plant the Contractor shall so far as is practicable and to the reasonable satisfaction of the
Engineer set the Plant aside and mark the Plant as the property of the Employer. In the
event of the Contractor failing so to set aside and mark the Plant as aforesaid the Engineer
shall be entitled to withhold any interim certificate for that Portion to which the Contractor
may otherwise be entitled.
Such Plant shall be in the care and possession of the Contractor solely for the purposes of
the Contract and shall not be within the ownership of disposition of the Contractor and any
interim certificate issued by the Engineer shall be without prejudice to the exercise of any
power of the Engineer contained in the Contract to reject Plant which is not accordance
with the Contract and upon any such rejection the property in the rejected Plant shall
immediately revert to the Contractor.
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36.0
CONTRACTOR’S EQUIPMENT
36.1
Removal of Contractor’s Equipment
All Contractor’s Equipment provided by the Contractor shall, when brought on to the Site,
be deemed to be exclusively intended for the execution of the Works and the Contractor
shall not remove the same or any part thereof, except for the purpose of moving it form one
part of the Site to another, without the consent in writing of the Engineer, which shall not
be unreasonably withheld.
36.2
Loss or Damage to Contractor’s Equipment
The Contractor shall be liable for loss of or damage to any of the Contractor’s Equipment
which may happen otherwise than through the default of the Employer.
37.0
CERTIFICATES AND PAYMENT
37.1
Certificate of Payment
The Contractor may at the times and in the manner following apply for interim and final
certificates as referred to in Clause 40.0 (Payment Conditions) for Plant shipped and en
route to the Site and for work executed on the Site.
37.2
Application for Interim Certificates
Applications for interim certificates may be made to the Engineer in respect of fabrication
of the Plant, each shipment of Plant, its arrival on Site and erection or installation and from
time to time as work on the Site progresses.
* (a)
Fabrication
Each such application in respect of fabrication shall state the stage reached as set out in the
detailed progress schedule, and be accompanied by the test certificates by an Inspection
Authority or the Engineer’s test certificates. No payment shall be made unless a certificate
is submitted.
* (b)
Shipment
Each such application in respect of shipment shall identify the Plant shipped, and be
accompanied by such evidence of shipment and of payment of freight and insurance and
such other documents as stated in Clause 26.3 (Shipping Documents) the Engineer may
reasonably require.
______________________________________________________________________________
*delete where not applicable
87
(c)
Arrival on Site
Each such application in respect of arrival of the Plant on Site shall be accompanied by a
receiving report and if applicable a damage report in accordance with Clause 26.7
(Receiving and Damage Reports).
(d)
Installation and Erection
Each such application in respect of installation or erection of the Plant forming part of the
Permanent Works shall state the stage reached as set out in the detailed progress schedule.
(e)
Taking Over
Each such application in respect of Plant which has satisfactorily passed the tests on
completion shall be accompanied by the Taking Over Certificate.
(f)
Civil Works
Each such application in respect of the Civil Works associated with the Works shall be
accompanied by a statement by the Contractor detailing the stage reached as set out in the
detailed progress schedule.
In each such application the Contractor shall state the amount claimed and shall set forth in
detail, in the order of the schedule of prices, particulars of the work executed as set out in
Clause 12.4 (Advanced Detailed Progress of Plant Schedule) pursuant to the Contract to a
date named in the application and since the period covered by the last preceding certificate,
if any, which includes work on Site.
37.3
Issue of Interim Certificates
The Engineer shall issue to the Contractor an interim certificate within 28 days after
receiving an application therefor in accordance with Sub-Clause 2 of this Clause which the
Contractor was entitled to make.
37.4
Retention Money
(a)
The Engineer shall make a deduction of a sum equal to 10 percent of the amount
due to the Contractor under Sub-Clause 5 (Value of Interim Certificates) related to interim
certificates only until a reserve shall have accumulated in the hands of the Employer up to
the limit of 5% of the Contract Sum.
b)
Upon issue of the Taking Over Certificate with respect to the whole of the Works
50 per cent of the retention money (or where a Taking Over Certificate is issued with
respect to such Section of the Works only such proportion of 50 per cent of the retention
money as the Engineer shall determine have regard to the relative value of such Section of
the Works) shall become due and payable to the Contractor.
88
(c)
Upon expiration of the Defects Liability Period for the whole of the Works the
Outstanding retention money shall become due and payable.
(d)
Provided that if, at such time, there shall remain to be executed by the Contractor
any outstanding defects referred to under Clause 32.1 (Taking Over Certificate) or any
works ordered during such period pursuant to Clause 33.2 (Making Good Defects) the
Employer shall be entitled to withhold payment until the completion of such works of as
much money as shall in the opinion of the Engineer represent the costs of the Works
outstanding.
37.5
Value of Interim Certificates
Every interim certificate shall certify the total value of Plant fabricated, Plant shipped,
Plant delivered to the Site for us in the works, Plant installed or erected or as the case may
be of the Civil works duly executed on the Site pursuant to the Contract up to the date
named in the application for the certificate.
The amount so certified shall be subject to deductions of:
(a)
Retention money retained,
(b)
Partial recovery of any advance payment,
(c)
Any sums which are due and payable to the Employer by the Contractor under the
terms of the Contract,
(d)
Any previous payments made by the Employer to the Contractor under the terms
of the Contract.
Provided that no sum shall be included in any interim certificate in respect of any Works
that, according to the decision of the Engineer, does not comply with the Contract, or Plant
has been brought and is at the date of the certificate prematurely upon the Site.
37.6
Correction and Withholding of Interim Certificates
The Engineer may by any interim certificate make any correction or modification in any
previous certificate which shall have been issued by him and the Engineer shall have the
power to withhold any interim certificate:
(a)
If the Works or any part thereof are not being carried out, to his satisfaction in
accordance with the Contract, or
(b)
By way of defence or counterclaim by the Employer, or
(c)
Because of a requirement in writing for necessary additional supporting documents
or details, or
(d)
Where the Contract expressly gives the Employer the right to deduct monies form
sums due under the Contract.
89
37.7
Advance Payments
(a)
Unless stated otherwise the Contract provides for a payment in advance, for Plant
and Civil Works, [Clause 40.2 (a) (Provision of Plant), 40.3 (Installation of Plant) and 40.4
(Construction of Building, Civil Engineering Works) refers] and any amounts becoming
due to the Contractor in respect thereof shall be included in interim certificates.
(b)
On signing the Form of Agreement and in exchange for the Performance Bond and
a separated bond for the amount of the Advance Payment the Contractor shall receive from
the Engineer an Advance Payment Certificate for an amount equal to 10 per cent for the
Contract Sum less any sum for contingencies included in the Contract Sum.
Any Advance Payment made by the Employer shall be recovered by the deduction, from
each interim certificate, of 10 per cent of the gross value of the certificate so that at the
completion of the Works the Contractor shall have repaid in full the total amount of the
Advance Payment.
In the event of the Contract being determined under Clause 44.1 (Contractor’s Default),
Clause 46.0 (Outbreak of War), Clause 47.0 (Special Risks), the Employer may deduct the
balance of the Advance Payment outstanding from any monies due or which may become
due to the Contractor or the Contractor shall upon demand pay to the Employer the amount
of such balance and it shall be deemed a debt due form the Contractor to the Employer and
shall be recoverable accordingly from the Contractor or from the Bank issuing the bond.
37.8
Effect of Interim Certificates
No interim certificate shall be relied upon as conclusive evidence of any matter stated
therein nor affect or prejudice any right of the Employer or the Contractor one against the
other.
37.9
Applicable for Final Acceptance Certificate
Application for the Final Acceptance Certificate may be made to the Engineer after the
Contractor has ceased to be under any obligation under Clause 33.0 (Defects after Taking
Over) provided that, if a Taking Over Certificate has been issued in respect of any Section
or Portion of the Works, the Contractor may apply for a separate Final Acceptance
Certificate at any time after the said obligation has ceased in relation to such Section or
Portion. Where the Contractor has carried out replacements or renewals to the Works in
compliance with the said Clause the Contractor’s obligations shall continue as provided in
Sub-Clause 33.3 (Notice of Defects) but the right of the Contractor to apply for a Final
Acceptance Certificate other than for the replacements or renewals shall not be affected by
the fact, and after the Contractor has ceased to be under any obligation under the said
Clause in respect of the replacements or renewals he may apply for a Final Acceptance
Certificate in respect thereof.
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37.10
Issue of Final Acceptance Certificate
The Contract shall not be completed until the Engineer has approved the issue of a Final
Acceptance Certificate and this Final Acceptance Certificate, stating that the Works have
been completed and all defects remedied to the Engineer‘s satisfaction, has been signed by
the Engineer and delivered to the Employer. The Final Acceptance Certificate shall be
given by the Engineer within twenty eight days after the expiration of the Defects Liability
Period, or if different defects liability periods shall become applicable to different Sections
or Portions of the Works, the expiration of the latest such period, or as soon thereafter as
any works ordered during such period, pursuant to Clause 32.1 (Taking Over Certificate)
or Clause 33.2 (Making Good Defects) hereof, shall have been completed to the
satisfaction of the Engineer and full effect shall be given to this Clause notwithstanding
any previous entry on the Works or the taking possession, working or using thereof or any
part thereof by the Employer. The second half of retention money will be released on the
issue of the Final Acceptance Certificate.
37.11
Submission of Final Account
As soon as possible, but not later than six months after the issue of the Taking Over
Certificate the Contractor shall submit to the Engineer a statement of the Final Account
with supporting documents showing in detail the value of the work done in accordance
with the Contract together with all further sums which the Contractor considers to be due
to him under the Contract. After receipt of this final account and of all information
reasonably required for its verification the Engineer shall after the expiry of the Defects
Liability Period issue a Final Account Certificate stating:
37.12
(a)
The amount which in his opinion is finally due under the Contract and (after giving
credit to the Employer for all amounts previously paid by the Employer and for all
Sums to which the Employer is entitled under the Contract),
(b)
The balance, if any, due from the Employer to the Contractor or from the
Contractor to the Employer as the case may be. Such balance shall, subject to
Clause 47.0 (Special Risks) hereof, be paid to or by the Contractor as the case may
require within sixty days of the Final Account Certificate.
Value of Final Account Certificate
The Final Account Certificate shall certify the total of all amounts comprised in interim
certificates previously issued in respect of the Works or the Section or Portion thereof to
which the Final Account Certificate relates subject to such additions thereto or deductions
therefrom as may be authorised under Sub-Clause 14 of this Clause.
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37.13
Final Account Certificate Conclusive
A Final Account Certificate shall, save in the case of fraud or dishonesty relating to or
affecting any matter dealt with in the certificate, be conclusive evidence as to the
sufficiency of the Works and of the value thereof unless any proceedings arising out of the
contract whether Clause 49.0 (Disputes and Arbitration) shall have been commenced by
either party before the Final Account Certificate has been issued or within three months
thereafter.
37.14
Adjustment to Certificates
If any sum shall become payable to the Contractor under the Contract otherwise than for
work executed or Plant delivered the amount thereof shell be included in the next
certificate (interim or final) issued by the Engineer, and if any sum shall become payable
under the Contract by the Contractor to the Employer, prior to the issue of the Final
Account Certificate, whether by deduction from the Contract Price or otherwise, the
amount thereof shall be deducted in the next certificate.
37.15
Corrections to Certificates
The Engineer may in any certificate give effect to any correction or modification that
should be made in respect of any previous certificate.
38.0
PROVISIONAL SUMS
38.1
Provisional sums
'Provisional Sum’ means a sum included in the Contract and so designated therein for the
execution of work or the supply of goods, materials or services, or for contingencies, which
sum may be used, in whole or in part, or not at all, at the direction and discretion of the
Engineer who shall consult with the Employer prior to the issue of an instruction in respect
of the expenditure of such sum. The total sum paid to the Contractor shall include only
such amounts in respect of the work, supply or services to which such Provisional Sums
relate as the Engineer shall approve or determine in accordance with this Clause.
38.2
Ordering work against Provisional Sums
In respect of every Provisional Sum the Engineer shall have power to order:
(a)
Work to be executed, including goods, materials or services to be supplied by the
Contractor. The value of such work executed or such goods, materials or services
supplied determined in accordance with Clause 34.0 (Variations) shall be paid to
the Contractor in accordance with Clause 37.0 (Certificates and Payment).
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38.3
(b)
Work to be executed or goods, materials or services to be supplied by a Nominated
Sub-Contractor. The sum to be paid to the Contractor therefor shall be determined
and paid in accordance with Clause 39.4 (Payments against Provisional Sums).
(c)
Goods and materials to be purchased by the Contractor. The sum to be paid to the
Contractor therefor shall be determined and paid in accordance with the said
Clause 39.4.
Invoices and Receipts
In the absence of competitive quotations for Works contained within the Provisional Sums
or the inapplicability of the prices contained in the Bills of Quantities or the Schedule of
Rates the Contractor shall produce all quotations, invoices, vouchers and accounts or
receipts in connection with expenditure in respect of Provisional Sums.
39.0
NOMINATED SUB-CONTRACTORS
39.1
Nominated Sub-Contractors
All specialists, merchants, tradesmen and others executing any work or supplying any
goods, materials or services for which Provisional Sums are included in the Contract, who
may have been or he nominated or selected or approved by the Employer and all persons to
whom by virtue of the provisions of the Contract the Contractor is required to sub-let any
work shall, in the execution of such work or the supply of such goods, materials or
services, be deemed to be Sub-Contractors employed by the Contractor and are referred to
in this Contract as ‘Nominated sub-Contractors’.
39.2
Objections to Nominations
The Contractor shall not be required by the Employer or the Engineer or be deemed to be
under any obligation to employ any Nominated Sub-Contractor whose performance
warranties are not acceptable to the Contractor or against whom the Contractor may raise
reasonable objection, or who shall decline to enter into a sub-contract with the Contractor
containing provisions that:
(a)
In respect of the work, goods, materials or services the subject of the Sub-Contract
the Nominated Sub-Contractor will undertake towards the Contractor the like
obligations and liabilities as are imposed on the Contractor towards the Employer
by the terms of the Contract and will save harmless and indemnify the Contractor
from and against the same and from all claims, proceedings, damages, costs,
charges and expenses whatsoever arising out of or in connection therewith, or
arising out of or in connection with any failure to perform such obligations or to
fulfill such liabilities. Provided that nothing in this paragraph shall entitle the
Contractor to object to a nominated Sub-Contractor who requires that the liabilities
and indemnities to the Contractor shall be limited pro rata to the Sub-Contract
price;
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(b)
39.3
That the Nominated Sub-Contractor will save harmless and indemnify the
Contractor from and against any negligence by the Nominated Sub-Contractor, his
servants or agents, and from and against any misuse by him or them or any
Contractor’s Equipment provided by the Contractor for the purposes of the
Contract and from all claims as aforesaid.
Responsibility for Design in Nominated Sub-Contracts
If in connection with any Provisional Sum the services to be provided include any matter
of design or specification of any part of the Works or Plant to be incorporated therein, such
requirement shall be expressly stated in the Contract and shall be included in any
Nominated Sub-Contract. The Nominated Sub-Contract shall specify that the Nominated
Sub-Contractor providing such services will save harmless and indemnify the Contractor
from and against the same and from all claims, in connection with any failure to perform
such obligations or to fulfil such liabilities, but not so as to impose upon the SubContractor any greater liability to the Contractor than the Contractor has to the Employer
under these Conditions.
39.4
Payments against Provisional Sums
For all work executed or goods, materials or services supplied by any Nominated SubContractor or purchased by the Contractor under Clause 38.2(c) (Ordering Work against
Provisional Sums) there shall be included in the sums paid to the Contractor:
39.5
(a)
The actual price paid or due to be paid by the Contractor, on the direction of the
Engineer, and in accordance with the Sub-Contract,
(b)
In respect of all other charges. a sum being a percentage of the actual price paid or
due to be paid calculated at the rate or rates inserted by the Contractor in the
Appendix to the Tender.
Delayed payments to Nominated Sub-Contractors
Before issuing any certificate, which includes any payment in respect of work done or
goods, materials or services supplied by any Nominated Sub-Contractor, the Engineer shall
be entitled to demand from the Contractor reasonable proof that all payments, less
retentions, included in previous certificates in respect of the work or goods, materials or
services of such Nominated Sub-Contractor have been paid or discharged by the
Contractor, and unless the Contractor shall:
(a)
Satisfy the Engineer in writing that he has reasonable cause for withholding or
refusing to make such payments; and
(b)
Produce to the Engineer reasonable proof that he has so informed such Nominated
Sub—Contractor in writing;'
94
The Employer shall be entitled to pay such Nominated Sub-Contractor direct, upon the
certificate of the Engineer, all payments, less retentions, provided for in the Sub-Contract,
which the Contractor has failed to make to such Nominated Sub-Contractor and to deduct
by way of set-off the amount so paid by the Employer from any sums due or which may
become due from the Employer to the Contractor.
Provided always that. where the Engineer has certified and the Employer has paid direct as
aforesaid, the Engineer shall in issuing any further certificates in favour of the Contractor
deduct from the amount thereof the amount so paid direct as aforesaid but shall not
withhold or delay the issue of the certificate itself when due to be issued under the terms of
the Contract.
39.6
Continuing obligations of Nominated Sub-Contractor
In the event of a Nominated Sub-Contractor having undertaken towards the Contractor in
respect of the work executed, or the goods, materials or services supplied by such
Nominated Sub-Contractor, any continuing obligation extending for a period exceeding
that of the Defects Liability Period, the Contractor shall advise the Engineer thereof and,
after the expiration of the Defects Liability Period, assign to the Employer, at the
Employer's request, the benefit of such obligation for the unexpired duration thereof.
40.0
PAYMENT CONDITIONS
40.1
Terms of payment
Unless otherwise agreed the Employer shall pay to the Contractor in the following manner
the Contract Sum adjusted to give effect to such additions thereto and such deductions
therefrom as are provided in these Standard Conditions of Contract.
40.2
Provision of Plant
(a)
10% of the total cost of Plant as an Advance Payment against an invoice from the
Contractor together with a Certificate from the Engineer and an Advance Payment:
Bond in accordance with clause 37.7 (Advance Payments) hereof.
(b)
___%* of the cost of fabrication of such Items of Plant as identified in the Tender
Submission against Test Certificates, less retention in accordance with Clause 37.4
(Retention money) hereof**.
(c)
___%* of the value of the Plant*** as included in each consignment against
shipping documents less such sums as may have been certified under Sub-Clause
(b) hereinbefore less retention in accordance with clause 37.4 (Retention money)
hereof.
_______________________________________________________________________________
*NOTE: The Employer shall complete this Sub-Clause prior to the issue of Contract
** delete where not applicable.
*** inclusive of related value for Shipping and Insurance only.
95
40.3
40.4
(d)
80% of the value of the P1ant*** (excluding installation) upon arrival on site less
such sums as may have been certified under Sub-Clauses (b) and (c) hereinbefore
less retention in accordance with Clause 37.4 (Retention money) hereof.
(e)
95% of the value of the Plant*** (excluding installation) upon issue of the Taking
Over Certificate less such sums as may have been certified under Sub-clauses (b),
(c) and (d) hereinbefore less retention in accordance with Clause 37.4 (Retention
money) hereof.
(f)
100% of the value of the Plant*** (excluding installation) upon issue of the Final
Acceptance Certificate or Final Account Certificate whichever is later less such
sums as may have been certified under Sub-Clauses (b), (c), (d) and (e) hereof less
retention in accordance with Clause 37.4 (Retention money) hereof.
Installation of Plant
(a)
10% of the cost of Installation against an invoice from the Contractor, a certificate
from the Engineer and an Advance Payment Bond in accordance with Clause 37.7
(Advance Payments) hereof.
(b)
85% in monthly progress payments according to the progress of erection works at
Site as certified by the Engineer and approved by the Employer.
(c)
10% upon issue of the Taking Over Certificate.
(d)
5% upon issue of the Final Acceptance Certificate or Final Account Certificate
whichever is later.
Construction of the Building, Civil Engineering Works
(a)
10% of the total price of Building and Civil Engineering works as an Advance
Payment within sixty (60) days upon presentation of Contractor's Advance
Payment Bond in accordance with Clause 37.7 (Advance Payments) hereof, and
upon submission of the Performance Bond together with the Contractor's payment
invoice.
(b)
35% in monthly progress payments according to the progress of the Works at Site
as certified by the Engineer and approved by the Employer.
(c)
10% within sixty (60) days from the date of issue of the Taking Over Certificate of
the whole of the Works.
(d)
within sixty (60) days from the date of the issue of the Final Acceptance Certificate
or Final Account Certificate whichever is later in respect of the entire Works, a
payment equivalent to 15% of the value of the entire executed Building and Civil
Engineering works as certified by the Engineer and approved by the Employer.
_________________________________________________________________________
*** inclusive of related value for Shipping and Insurance only.
96
41.0
INTEREST ON DELAYED PAYMENTS
In the event of failure by the Employer to make payment in accordance with clause 37.0
(Certificates and Payments) the Contractor shall become entitled to the payment by the
Employer of interest at 7% per annum from the date of which the same should have been
made. The Contractor shall not be entitled to claim interest on those parts of the certificate
to which the Employer objects unless it can be shown that the Employer's objections were
unreasonable.
42.0
CURRENT FLUCTUATION
Should the Contract provide for payment of either Part or the whole of the Contract Sum in
Rials Omani but that this sum is based on a foreign currency rate then if after the opening
of Tenders and prior to signature of the Form of Agreement there should occur a change in
the rates of exchange as stated in Clauses 43.2 (Rates of Exchange of Currency) and 43.3
(Currency Conversion} hereby then the Employer reserves the right to apply the rate
application on the date of ratification of the Form of Agreement should the Employer so
wish.
Should the Employer take such action as allowed for under the Sub-Clause above then the
said Clause 43.0 shall be deemed to be amended accordingly.
43.0
FOREIGN CURRENCY
43.1
Payment in Rial Omani
Unless specified otherwise all payments shall be in Rials Omani.
There shall be no adjustment to remuneration due to fluctuations and variations in the rates
of exchange between the Rial Omani and any foreign currencies relating to the ‘Local
Portion‘ of the Contract notwithstanding Sub-Clause 3 (Currency Conversion) and SubClause 4 (Currency Conversion relating to Provisional Sums) of this Clause as stated
hereafter.
43.2
Rates of Exchange of Currency
Where however the Contract provides for payment in whole or in part to be made to the
Contractor in foreign currency or currencies, such payment shall be fixed and not be
subject to variations in the rate or rates of exchange between such specified foreign
currency or currencies and the Rial Omani of the Sultanate of Oman.
97
43.3
Currency Conversion
Where the Employer shall have required the Tender to be expressed in a single currency
but with payment to be made in more than one currency and the Contractor has stated the
proportions or amounts of other currency or currencies in which he requires payment to be
made, the rate or rates of exchange applicable for calculating the payment of such
proportions or amounts shall be those prevailing, as determined by the Central Bank of the
Sultanate of Oman on the latest date for the submission of tenders for the Works, as shall
have been notified to the Contractor by the Employer prior to the submission of tenders or
as provided for in the Tender Documents.
43.4
Currency Conversion relating to Provisional Sums
Where the Contract provides for payment in more than one currency and the proportions or
amounts to be paid in foreign currencies in respect of Provisional Sum items shall be
determined in accordance with the principles set forth in Sub-Clauses 2 and 3 of this
Clause as and when these sums are utilised in whole or in part in accordance with the
provisions of Clauses 38.0 (Provisional Sums) and 39.0 (Nominated Sub-Contractors)
hereof.
44.0
REMEDIES AND POWERS
44.1
Contractor's Default
If the Contractor shall assign the Contract, without the consent in writing of the Employer
first obtained, or if the Engineer shall certify in writing to the Employer that in his opinion
the Contractor:
(a)
Has abandoned the Contract; or
(b)
Without reasonable excuse has failed to commence the Works or has suspended
the progress of the Works for twenty eight days after receiving from the Engineer
written notice to proceed; or
(c)
Despite previous warnings by the Engineer, in writing, is not executing the Works
in accordance with the Contract, or is neglecting to carry out his obligations under
the Contract so as seriously to effect the carrying out of the Works;
then the Employer may, after giving fourteen days’ notice in writing to the Contractor,
enter upon the Site and expel the Contractor therefrom without thereby voiding the
Contract, or releasing the Contractor from any of his obligations or liabilities under the
Contract, or affecting the rights and powers conferred by the Contract on the Employer or
the Engineer and may himself Complete the Works or may employ any other Contractor to
complete the Works without prejudice to any other remedy of the Employer. The Employer
or such other Contractor shall have free use for such completion of so much of the
Contractor's Equipment as may be on the Site in connection with the Works without being
responsible to the
98
Contractor for fair wear and tear thereof and to the exclusion of any right of the Contractor
over the same.
44.2
Valuation at Date of Forfeiture
The Engineer shall, as soon as may be practicable after any such entry and expulsion by the
Employer, fix and determine ex-parte, by or after reference to the parties, or after such
investigation or enquiries as he may think fit to make or institute, and shall certify what
amount, if any, had at the time of such entry and expulsion been reasonably earned by or
would reasonably accrue to the Contractor in respect; of work then actually done by him
under the Contract and the value of any unused or partially used materials on the Site.
44.3
Payments after Forfeiture
If the Employer shall enter and expel the Contractor under this Clause, he shall not be
liable to pay to the Contractor any money on account of the Contract until the costs of
execution, damages for delay in completion, and all other expenses incurred by the
Employer have been ascertained and the amount thereof certified by the Engineer. The
Contractor shall then be entitled to receive only such sum or sums, if any, as the Engineer
may certify would have been payable to him upon due completion by him after deducting
the said amount. If such amount shall exceed the sum which would have been payable to
the Contractor on due completion by him, then the Contractor shall, upon demand, pay to
the Employer at the amount of such excess and it shall be deemed a debt due by the
Contractor to the Employer and shall be recoverable accordingly.
44.4
Effect on Liability for Delay
If the Employer pursuant to this Clause takes the Works or part thereof out of the
Contractor's hands the Contractor's Liability under Clause 31.0 (Delays in Completion)
shall immediately cease, without prejudice to any such liability that may at that time
without prejudice to any such liability that may at that time already be recoverable from the
Contractor by the Employer.
45.0
BANKRUPTCY
If the Contractor shall become bankrupt or insolvent, or have a receiving order made
against him, or compound with his creditors, or, being a corporation commence to be
wound up, not being a members’ voluntary winding up for the purpose of amalgamation or
reconstruction, or carry on its business under a receiver for the benefit of its creditors or
any of them, the Employer shall be at liberty:
(a)
To terminate the Contract forthwith by notice in writing to the Contractor or to the
receiver or liquidator or to any person in whom the Contract may become vested,
and to act in the manner provided in Clause 44.1 (Contractor’s Default) as though
the last-mentioned notice had been the notice referred to in such Clause and the
Works had been taken out of the Contractor's hands; or
99
(c)
To give such receiver, Liquidator or other person the option of carrying out the
Contract subject to his providing a guarantee for the due and faithful performance
of the Contract up to an amount to be agreed.
46.0
OUTBREAK OF WAR
46.1
Outbreak of War
If during the currency of the Contract there shall be an outbreak of war (whether war is
declared or not) in any part of the world which, whether financially or otherwise,
materially affects the execution of the Works the Contractor shall, unless and until the
Contract is terminated under the provisions in this Clause contained, use his best
endeavours to complete the execution of the Works, provided always that either the
Employer or the Contractor shall be entitled, at any time after such outbreak of war, to
terminate this Contract by giving notice in writing one to the other, and upon such notice
being given this Contract shall (save as to the rights of the parties under this Clause and to
the Operation of Clauses 47.0 [Special Risks] and 48.0 [Frustration) terminate, but without
prejudice to the rights of either party in respect of any antecedent breach thereof.
46.2
Removal of Contractor's Equipment on Termination in Case of War
If the Contract shall be terminated under the provisions of the last preceding Sub-Clause
the Contractor shall with all reasonable dispatch remove from the Site all Contractor's
Equipment and shall give similar facilities to enable his Sub-contractors to do so.
46.3
Payment if Contract Terminated in Case of War
If the Contract shall be terminated as aforesaid the Contractor shall be paid by the
Employer (in so far as such amounts or items shall not have already been covered by
payments an account made to the Contractor) for all work executed prior to the date of
termination at the rates and prices provided in the Contract and in addition:
(a)
the amounts payable in respect of any preliminary items, so far as the work or
service comprised therein has been carried out or performed, and a proper
proportion as certified by the Engineer of any such items the work or service
comprised in which has been partially carried out or performed,
(b)
the cost of materials or goods reasonably ordered for the Works or for use in
connection with the Works which shall have been delivered to the Contractor or of
which the Contractor is legally liable to accept delivery (such materials or goods
becoming the property of the Employer upon such payment being made by him),
100
(c)
a sum, to be certified by the Engineer, being the amount any expenditure which in
the circumstances was reasonably incurred by the Contractor in the expectation of
completing the whole of the Works, in so far as such expenditure shall not have
been covered by the payments in this Sub-Clause before mentioned,
(d)
the reasonable cost of removal under Sub-Clause 2 of this Clause and (if required
by the Contractor) return thereof to the Contractor's works in his country or to any
other destination at no greater cost,
(e)
the reasonable cost of repatriation of all the Contractor's staff and workmen
employed on or in connection with the Works at the time of such termination,
Provided always that, against any payments due from the Employer under this Sub-Clause,
the Employer shall be entitled to be credited with any outstanding balances due from the
Contractor for advances in respect of Plant and materials, and any sum previously paid by
the Employer to the Contractor in respect of the execution of the Works.
47.0
SPECIAL RISKS
47.1
No Liability for War etc Risks
Notwithstanding anything in the Contract contained, the Contractor shall be under no
liability whatsoever whether by way of indemnity or otherwise for or in respect of
destruction of or damage to the Works, save to work rejected under the provisions of
Clause 28.0 (Defects before Taking Over) hereof prior to the occurrence of any special risk
hereinafter mentioned, or to property whether of the Employer or third parties, or for or in
respect of injury or loss of life which is the consequence of any special risk as hereinafter
defined.
47.2
Special Risks - Definition
The special risks where these take place in the Sultanate of Oman are the nuclear and
pressure wave risks described in Clause 15.1 (b) (i) (Care of Works), war, hostilities
(whether war be declared or not), invasion, act or foreign enemies, rebellion, revolution,
insurrection, military or usurped power, civil war or, riot, commotion or disorder of
persons other than the employees of the Contractor or his Sub-Contractors.
47.3
Damage to Works etc by Special Risks
If the Works or any Plant on or near or in transit to the Site, or any other property of the
Contractor used or intended to be used for the purposes of the Works, shall sustain
destruction or damage by reason of any of the said special risks the Contractor shall be
entitled to payment for:
101
47.4
(a)
any Portion of the Works or of Plant so destroyed or damaged and so far as may be
required by the Engineer, or as may be necessary for the completion of the Works,
on the basis of cost glue such profit as the Engineer may certify to be reasonable
for,
(b)
replacing or making good any such destruction or damage to the Works,
(c)
replacing or making good such materials or other property of the Contractor used
or intended to be used for the purposes of the Works.
Projectiles, Missiles etc
Destruction, damage, injury or loss of life caused by explosion or impact whenever and
wherever occurring of any mine, bomb, shell, grenade or other projectile, missile, munition
or explosive of war, shall be deemed to be a consequence of the said special risks.
47.5
Increased Costs arising from Special Risks
The Employer shall repay to the Contractor any increased cost of or incidental to the
execution of the Works, other than such as may be attributable to the cost of reconstructing
work rejected under the provisions of Clause 28.0 (Defects before Taking Over) hereof,
prior to the occurrence of any special risk, which is howsoever connected with the said
special risks, subject however to the provisions in these Conditions in regard to outbreak of
war, but the Contractor shall as soon as any such increase of cost shall come to his
knowledge forthwith notify the Engineer thereof in writing.
48.0
FRUSTRATION
Should the Contractor be obstructed or delayed in the commencement, execution or
completion of his work by any necessary or unavoidable act or delay of the Employer or by
a cause in the Sultanate of Oman being a riot, insurrection, war, blockade, revolution, civil
commotion, pestilence, acts of public authorities, fire, explosion, lightning, earthquake,
cyclone, tidal waves, typhoons, hurricanes, tornadoes, floods, plague, epidemics,
quarantine, strikes or other labour troubles or similar causes unforeseen, not caused by and
beyond the control of the Contractor; and if in the opinion of the Engineer, the ultimate
completion of the entire Works is delayed thereby, then the Contract dates will be extended
for a period equivalent to the time the said work as a whole has been delayed for said
reason, provided that within seven (7) days the Contractor submits to the Engineer for
approval notice in writing stating in detail the reason for each delay caused by frustration
or Force Majeure.
102
49.0
SETTLEMENT OF DISPUTES
If any dispute or difference of any kind whatsoever shall arise between the Employer and
the Contractor or the Engineer and the Contractor in connection wish, or arising out of the
Contract, or the execution of the Works, whether during the progress of the Works or after
their completion and whether before or after the termination, abandonment or breach of the
Contract, it shall be referred to and settled by the Engineer who shall, within a period of
ninety days after being requested by either party to do so, give written notice of his
decision to the Employer and the Contractor. Such decision in respect of every matter so
referred shall be final and binding upon the Employer and the Contractor, and shall
forthwith be given effect to by the Employer and by the Contractor, who shall proceed with
execution of the Works with all due diligence whether he or the Employer requires
arbitration, as hereinafter provided, or not. If the Engineer has given written notice of his
decision to the Employer and the Contractor and no Claim to arbitration has been
communicated to him by either the Employer or the Contractor within a period of ninety
days from receipt of such notice, the said decision shall remain final and binding upon the
Employer and the Contractor. If the Engineer shall fail to give notice of his decision, as
aforesaid, within a period of ninety days after being requested as aforesaid, or if either the
Employer or the Contractor be dissatisfied with any such decision, then and in any such
case either the Employer or the Contractor may within ninety days after receiving notice of
such decision, or within ninety days after the expiration of the first named period of ninety
days, as the case may be, require that the matter or matters in dispute be referred to
arbitration as hereinafter provided. All disputes or differences in respect of which the
decision, if any, of the Engineer has not become final and binding as aforesaid shall be
referred to an arbitrator to be agreed upon by the parties or failing such agreement to be
nominated, on the application of either party, by the Chairman of the Committee for the
Settlement of Commercial Disputes of the Sultanate of Oman, who shall appoint a
professional arbitrator, whose award shall be considered as final and binding between the
parties. The said arbitrator shall have full power to open up, revise and review any
decision, opinion, direction, certificate or valuation of the Engineer. Neither party shall be
limited in the proceedings before such arbitrator to the evidence or arguments put before
the Engineer for the purpose of obtaining his said decision. No decision given by the
Engineer in accordance with the foregoing provisions shall disqualify him from being
called as a witness and giving evidence before the arbitrator on any matter whatsoever
relevant to the dispute or difference referred to the arbitrator as aforesaid. The reference to
arbitration may proceed notwithstanding that the Works shall not then be or be alleged to
be complete, provided always that the obligations of the Employer, the Engineer and the
Contractor shall not be altered by reason of the arbitration being conducted during
the progress of the Works
103
50.0
NOTICES
50.1
Notices to Contractor
All certificates, notices or written orders to be given to the Contractor by the Employer or
the Engineer under the terms of the Contract shall be served by sending the same by post,
cable, telefax or telex or by leaving the same at the Contractor’s principal place of business
or to such other address as the Contractor shall nominate for that purpose.
50.2
Notices to Employer and Engineer
Any notice to be given to the Employer or to the Engineer under the terms of the Contract
shall be served by sending the same by post, cable, telefax or telex to or leaving the same
at the respective addresses nominated for that purpose in the Form of Agreement and
Clause 1.1 (Definitions) hereof.
50.3
Change of address
Either party to the Contract or the Engineer may change its nominated address by prior
written notice to the others.
51.0
TERMINATION OF CONTRACT
The Employer shall have the right to terminate the Contract if it should become necessary
for the Employer to postpone or discontinue the Works for any reason whatsoever. In the
event of termination, the Employer shall pay to the Contractor the relevant Contract Price
in accordance with criteria stated in Clause 46.3 (Payment of Contract Terminated in Case
of War) for the Works performed up to the date of termination together with a reasonable
allowance for profit and costs of settlement.
52.0
CHANGES IN COST AND LEGISLATION
Adjustments to the Contract Sum will be applicable on a net cost basis in the following
circumstances:
104
53.0
(a)
Changes in last wages draw and allowances paid to labour and staff employed on
the Site of the Works whose salaries are directly affected thereby as a result of any
Sultanate of Oman legislation promulgated after the date if the Letter of
Acceptance and applicable to this Contract. The Contractor must provide to the
Engineer satisfactory detailed evidence of any variation of the last wages drawn
and allowances before any such variations are paid or deducted from the
Contractor. The Contractor shall submit to the Engineer upon signing the Contract
a detailed list of his labour and staff and their wages and allowances.
(b)
Changes in material price directly affected as a result of any Sultanate of Oman
legislation promulgated after the date d the Letter of Acceptance excepting only
any legislation which may result in the adjustment of the exchange rate of the Rial
Omani in relation to any other currency or currencies.
CLEARANCE THROUGH CUSTOMS
The Contractor shall be responsible for clearance through the Customs of all Plant and
Contractor’s Equipment and in procuring any necessary Government consent to the reexport of Contractor’s Equipment upon removal from the Site.
54.0
FIRE PRECAUTIONS
The Contractor shall conform to the regulations of the Employer and any other controlling
authority in force at the Site of the Works with respect to precautions to be taken against
fire hazards.
55.0
GUARANTEES
55.1
Guarantee of Material and Workmanship
The Contractor shall guarantee that the materials incorporated into the Works are unused
and the best of their respective kind for the service intended and that all items will be free
from inherent defects in workmanship and material, and that the Plant in its several
components will operate successfully at all capacities up to and including the maximum
specified performance without undue settlement, noise, heating, straining of parts, wear
and vibration, and that an ample factor of safety is included in every design. Such
guarantee shall be valid for at least 10 years from the date of the Final Acceptance
Certificate.
105
55.2
Performance Guarantees
The Contractor shall comply with the performance and other guarantees as stipulated in the
Outline Specification, for Mechanical and Electrical Works, the Civil and Building Works,
the Schedules of Guarantees, the Schedules of Technical Data, the Specifications and/or
other Contract Documents.*
56.0
TAXATION, CUSTOMS DUTY, RATES AND OTHER CHARGES
(a)
(b)
The Contractor shall be responsible for ascertaining the extent of all taxes,
customs, rates, dues and other charges payable in accordance with the Laws,
Regulations, in force from time to time in the Sultanate of Oman and shall give all
notices in compliance therewith.
The Contractor shall be held to have included in the Tender for the payment of all
charges of whatever nature required to be paid in order to comply in all respects
with the above Laws and Regulations.
106
ANNEXURE A
FORM OF TENDER BOND
H.E. The Chairman
Tender Board
P. O. Box 787
Muscat
Sultanate of Oman
Tender Bond NO…………………….
By this bond we …………………………………………………………………………..………….
whose address is ……………………………………………………………..…………..…………..
hereby guarantee Messrs ..…………………………………………………………………..………..
of ……………………………………………………………………………………………….……..
and hold at your disposal the sum of RO ………….………………………………………..….…….
and/or ………………………………………………………………………………………….….…..
being
………………%
of
the
Tender
Sum
from
………………………….until
……………………….. a total period of ninety (90) days.
This bond shall be free of interest and payable in cash on your first written demand in the event of
the Tenderer either withdrawing his Tender within a period of ninety (90) calendar days from the
date for the receipt of Tenders or failing to provide a Performance Bond within twenty eight (28)
calendar days of acceptance of the Tender without any reference to or contestation on behalf of the
Contractor.
This bond should be returned to us upon its expiry or upon fulfillment of our undertaking
whichever is the earlier.
Authorized Signature
(To be issued by a locally registered bank)
107
ANNEXURE B
FORM OF ADVANCE PAYMENT BOND
Ministry of Finance and Economy
P. O. Box 506
Muscat
Sultanate of Oman
Advance Payment Bond NO. ……………………
Whereas ……………………………………………………………………………………………
(hereinafter
called “the
Contractor”)
has been awarded a Contract dated
………………………………….. to execute, complete and remedy the defects of the
………………………………………………………………………………….. for the value of RO
………………………………………………………………………
(
Rials
Omani
………………..and/or …………………………………………………………………………….)
to the Contractor being 10% of the Contract Sum, less any sum for Contingencies included in the
Contract
Sum,
by
this
bond,
we
………………………………………………………………………………………whose address is
………………………………………………………..……………… guarantee to pay you a sum
not exceeding RO ……………………………………………………………………………….……
and/or ……………………………………………………………………………………………..….
on your first written demand without reference to or contestation on behalf of the Contractor.
It is understood that our liability towards you will be progressively reduced by the amount repaid to
you by the Contractor as contained in the Certificates and Payments against the said advance
payment.
This bond should be returned to us upon its expiry or upon fulfilment of our undertaking whichever
is the earlier.
__________________
Authorized Signature
(To be issued by a locally registered bank)
108
ANNEXURE C
FORM OF PERFORMANCE BOND
Ministry of Finance and Economy
P. O. Box 506
Muscat
Sultanate of Oman
Advance Payment Bond NO. ……………………..
Whereas ……………………………………………………………………………………..…..……
(hereinafter called “the Contractor”) has been awarded a Contract dated …………………..………
to execute, complete and remedy the defects of the ……………………………………………...…..
for the value of RO ……………………………………………………………….(Rials Omani
…………………………………………………………………………………………………..……)
and/ or ………………………………………………………………………………………….…….
by this bond we ………………………………………………………………………………………
whose address is …………………………………………………………………………….……….
are held and firmly bound unto the Government of the Sultanate of Oman represented by the
Ministry of Finance and Economy, Muscat in the sum of RO …………………………………..
and/ or …………………………………………………………… being 5% of the Contract Value.
We agree to make unconditional payment under this bond on your first written demand without any
reference to or contestation on behalf of the Contractor provided the claim is received by us on or
before………………….
The bond will be effective from ……………………………………….. and shall be valid until the
…………………………………after which date our liability shall automatically cease.
This bond should be returned to us upon its expiry or upon fulfillment of our undertaking
whichever is earlier.
__________________
Authorized Signature
(To be issued by a locally registered bank)
109
NOTE TO THE CONTRACTOR
Whilst the Performance Bond is an “On First Written Demand” Bond, the Employer may, but is
not bound to adhere to the following procedure. If the Employer considers that the Contractor is in
default of the due performance of his duties under the Contract, then the Employer will give
fourteen days written notice to the Contractor of this occurrence during which time the Contractor
shall rectify such performance to the satisfaction of the Engineer.
If in the opinion of the Engineer such performance is not rectified the Engineer shall inform he
Employer accordingly in writing.
The aforementioned shall not, in any manner whatsoever, alter the nature of the “On First Written
Demand” Bond.
110