jct 98 private with quantities

I Standard Form of Building Contract 1998 Edition

I!

Private With Quanti

y& ContractsTribunal Limited

Presented By: www.constructionlibrary.tk

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Contents Throughout the Articles ofAgreement and Conditions, references to footnotesare made bysmallletters insquare brackets.

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

9 1.1 1.2 1 *3 1 *4 1 e5 1 *6

1 -7 1 e 8 1 *9 1.10 1.1 1 1.12

a 2.1

ARTICLES OF AGREEMENT

Recitals (First - Seventh)

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

Attestation

CONDITIONS: PART 1: GENERAL

Interpretation, definitions etc. Method of referencetoclauses Articles etc. to be read as a whole Definitions [Number not used1

Page 5 6A

6 6A1

7 6A.2

6A.3

6A.4

7

8 8.1

11

8.2

8.3 13 8.4

8 5

8.6

Provisionsfor use wherethe Appendixstates 21 that all theCDfVl Regulations apply Employer'sobligation - Planning Supervisor - Principal Contractor Contractor - compliance with dutiesof a principal contractor Successor appointed to the Contractor as Principal Contractor Health and safety file

Levelsand setting out 22

Work, materials and 22 e113 Kindsand stan e 4 Construction Sk

. . P e m \ Contractor's responsibility

Reappointment of Planning Supervisor or Principal Contractor - notification to Contractor Giving or serviceof noticesorother documents Reckoning periods of days Employer's Representative Applicable law Electronic data interchange Contracts(RightsofThird Parties) Act 1999 - contracting out

Contractor's obligations Contract Documents a 1 Contract Bills

23 indemnity to

uctions -treatment of royalties

chflecttothe Works

2-2 riations and prowisionel sums e2 Preparation of Contract Bills

2.3/2-4 Discrepancies in or divergences between documents requiring avariation

efinition of Variation

Contract Sum - additionsor deductions - adjustment - Interim Certificates

3

than inwriting

issue of certificates

13A.2 13A.3

13A.4 13A.5 13A6 13A.7

13A8

94 14.1

or's Statement 14.2 tatutory Requirements and

e 7 Change in Statutory Requirements after Base Date

62 Fees or charges 15 6 3 Exclusion of provisionson Domestic Sub- 15.1

Contractors and Nominated Sub-Contractors 15.2

Instructions on provisional sums Valuation ofvariations and provisional sum work and workcovered by an Approximate Quantity Valuation rules Contractof s rightto be present at measurement Valuations - Employer/Contractor agreement - 13AQuotationforaVariation and Variations thereto - addition to or deduction from Contract Sum

24

24

24

24

Wariation instruction - Contractof s quotation in compliance with the instruction Contractorto submit his quotation ('13A Quotation') Content of the Contractor's 13AQuotation Acceptanceof 13AQuotation - Architect's confirmed acceptance Contractor's 13A Quotation not accepted Payment for a 13A Quotation Restriction on use of a 13A Quotation Numberofdays -clauses 13A.1.1 and/or 13A.1.2 Variationsto work forwhich aconfirmed acceptanceof a 13AQuotation has been issued - valuation

ContreePSurn 31 Quality and quantity of work included in Contract Sum Contract Sum - only adjusted underthe Conditions - errors in computation

Walueadddtan - supplemental prowisions 31 Definitions - VATAgreement Contract Sum - exclusiveofVAT

29

P With 98 (9D3) @The Joint Contracts Tribunal Limited 2003 7

15.3

16 16.1 16.2

17 17.1 17.2 17.3 17.4

17.5

18 18.1

I

I 19 19.1 19.2

I 19.3 19.4 19.5

20

20.1

20.2

20.3

21 21.1

21.2 21.3

22 22.1 22.2 22.3

22A

22A-1

22A.2

22A-3

22A.4

22A.5

Possible exemption from VAT

Materials and goods unfixed or offsite Unfixed materials and goods - on site Unfixed materialsandgoods - off-site

Practical Completion and defects liability Certificate of Practical Completion Defects, shrinkages or other faults Defects etc. - Architect's instructions Certificate of Completion of Making Good Defects Damage by frost

Partial possession by Employer Employefs wish - Contractor'sconsent -1 Practical Completion - relevant part -2 Defectsetc. - relevant part *3 Insurance - relevant part .4 Liquidated damages - relevant part

Assignment and sub-contracts Assignment Sub-letting - Domesticsub-Contractors - Architect's consent Sub-letting - list in Contract Bills Sub-letting - conditions of any sub-letting Nominated Sub-Contractors

Injury to persons and property and indemnity to Employer Liability of Contractor - personal injury or death - indemnitytoEmployer Liabilityof Contractor - injury or damageto property - indemnity to Employer Injuryordamageto property - exclusion ofthe Works and Site Materials

32 -

32

33

33

35

Insurance againstinjurytopersons or property 36 Contractor's insurance - personal injury or A

22C.lA Terrorism cover - existing structures and

22c.2

22C.3

22C.4

22C.5

220

22FC

23

23.1

2302 23-3

contents - non-availability - Employefs options Works in or extensions to existing structures - All Risks Insurance - Employertotakeout and maintain Joint Names Policy Failureof Employertoinsure - rightsof Contractor Loss ordamage to Works - insuranceclaims - Contractor'sobligations - payment by Employer .l Terrorism cover - non-availability -2 Employer's options

Insurance for Employefs damages - clause254.3

Joint Fire Code - CO -1 Application of e2 Compliancewi -3 Breach of Join

( b y x y e v

death - injury or damageto propem- Insurance - liabilityetc. of Employer Excepted Risks

lnsuranceofthe Works Insurance of the Works - alternativeclauses

Nominated and Domestic Definitions

benefit of Joint Names Policies - Specifie Perils

nd expense caused by matters materially

26-6

27 27.1 27.2 27.3 27.4 27.5 27.6

27.7 / \ -

2 8.2 Failu ofEmpl ertoi sure- ri

2 *3 Lossor maaeto or -insuranceclaims- %, Ut$ w Wta67 - payment by

228.4 .1 T rorismcov - non-availability a2 ployefs tions

27.8

28 28.1 28.2

28.3 28.4

28.5

288 28A.1

47

Relevance ofcertain extensions of Completion Date Nominated Sub-Contractors - matters materially affecting regular progress of the sub- contractworks - dkesloss an&lorexpense Amounts ascertained - added to Contract Sum Reservation of rightsand remediesof Contractor

Determination by Employer Notices underclause27 Default by Contractor Insolvency of Contractor Corruption Insolvency of Contractor - option to Employer Consequences of determination under clauses 27.2 to 27.4 Employer decides nottocomplete the Works Other rightsand remedies

Determination by Contractor Notices underclause28 Default by Employer - suspension of uncompleted Works Insolvency of Employer Consequences of determination under clause 28.2 or 28.3 Other rightsand remedies

Determination by Employer or Contractor Grounds for determination oftheemployment ofthe Contractor

28A.6 28A.1.1 - clauses 28A.3 to 28A.6

Contractor

- 22C Insurance ofexistingstructures - insuranceof 42 28A.2/ Consequences of determination under clause

22C.1 Existing structures and contents - Specified 28A.7 Amountsattributabletoany Nominated Sub- Works in or extensions to existing structures

Perils - Employertotakeout and maintain Joint Names Policy

45

46

46

47

48

51

53

57

59

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29

29.1 Information in Contract Bills 29.2

30 Certificates and payments 30A Paymentssubjecttoclause 31 30.1 a1.1 Interim Certificates and valuations -

to e1.5 final date for payment - interest

Works by Employer or persons employed or engaged by Employer

Information not in Contract Bills

30.2

30.3 30.4 30*4A 30.5 30.6

30.7

30-8 30-9 3010

31 31.1 31.2 31.3

31.4 31.5 31.6

31-7 31.10 31.12

31.13 31.14

32

33

34 34.1 342 34.3

35

351 35.2

-1.6 Advance payment a2.1 Interim valuations a2.2 Application by Contractor - amount of

93 Issue of Interim Certificates .4

Ascertainment of amounts due in Interim Certificates Off-site materials or goods - the 'listed items' Retention - rulesforascertainment Contractor's bond in lieu of Retention Ruleson treatment of Retention a1 FinaladjustmentofContractSum -

documentsfrom Contractor +2 Items included in adjustment of Contract

Sum Interim Certificate - final adjustment or ascertainment of nominated sub-contract sums Issue of Final Certificate Effect of Final Certificate Effect of certificates otherthan Final Certificate

Construction Industry Scheme (CIS) Definitions Whether Employerisa'contractor' Payment by Employer - valid Authorisation essential Validity of Authorisation - Employer'squery

gross valuation

Right of suspension of obligations by Contractor

61 Payment of Nominated Sub-Contractor

Direct payment of Nominated Sub-

61 *6 Agreement NSCMl - pre-nomination paymentsto Nominated Sub-Contractor by Employer

35.14 Extension of period or periodsfor completion of nominated subcontract works

3515 Failuretocomplete nominatedsubcontract

35.13 e1 Architect - direction as to interim and .2 paymentfor Nominated Sub-Contractor

*3 to 5 contractor

35.16

35.17 to ml9 35.17 35.18

35.19

35.20

35.21

works

Practical completion of n contract works

Contractors

70

76

77

77

78

78

79

79

79

79 . .

Authorisation: CIS 4 registration card where re-nomination 79 Authorisation: CIS 5 or CIS 6 or a certifying document Change of Authorisation Vouchers Correction of errors in making thestatutory deduction Relation to other clauses Disputes or differences

[Number not usedl

[Number not usedl

Antiquities Effect of find ofantiquities

Direct loss and/or expense

CONDITIONS: PART2:

NOMINATED SUPPLIERS

81

OMINATED SUPPLIERS 82 efinition of a Nominated Supplier

Ascertainment of coststo be set against prime cost sum Sale contract provisions - Architect's right to

NOMINATED SUB- - 73

73

Architec

clause35.8 3510 [Number not usedl 3511 [Nurnbernotusedl 35.12 [Numbernot usedl

exclusion of liability

CONDITIONS PART3: FLUCTUATIONS

37 Choice of fluctuation provisions - entry in 85 Appendix

Note: Clauses38,39and40are published separarely

FLUCTUATIONS 38 CONTRIBUTION, LEVY AND TAX

38.1 a1 Deemed calculation of Contract Sum - types and ratesofcontribution etc.

a2 Increases or decreases in rates of contribution etc. - payment orallowance

a3 Personsemployedonsiteotherthan

~517 Refunds and premiums .8 Contracted-out employment a 9 Meaning of contribution etc.

38.2 Materials - dutiesandtaxes

383 Fluctuations - worksub-let - Domestic Sub-Contractors

38.3 *1 Sub-let work - incorporation of provisions to like effect

38.3 *2 Sub-letwork - fluctuations - payment to or allowance by the Contractor

and $4 'workpeople'

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384 Provisions relating to clause 38 41A.7 Effect of Adjudicator's decision to 06 41A.8 Immunity 38.4 a 1 Written notice by Contractor

*2 Timing and effect of written notices 418 Arbitration .3 Agreement - Quantity Surveyorand

*4

a5 Evidenceand computations by Contractor PERFORMANCE SPECIFIED WORK .6 No alteration toContractofs profit 42.1 Meaning of Performance Specified Work .7 Position where Contractor in default 42.2 Contractor's Statement

and -8 overcompletion 42.3 Contents of contractor' s Statement 38.5 Worketc. towhichclauses38.1 toe3 not 42.4 Time for Contractor's Statement

applicable 386 Definitionsforusewithclause38 Statement

38.7 Percentage addition to fluctuation paymentsor Statement allowances

39 LABOUR AND MATERIALS COST AND TAX FLUCTUATIONS

39.1 a 1 Deemedcalculation ofContractSum - -2

a3

.5

Materials, goods, electricity and fuels

Fluctuations - worksub-let - Domestic Sub-Contractors

to like effect -2 Sub-letwork -fluctuations - paymentto

or allowance by the Contractor

Provisions relating to clause 39

e2 e3 Agreement - Quantity Surveyorand

a4 Fluctuations addedto ordeductedfrom respect of payment for off-site

a5 Evidenceand computations by Contr -6 Noalteration toContractor's profit SUPPLEMENTAL PROVISIONS -7 Position where Contractor in default (the VATAgreementJ

and -8 overcompletion Interim payments - addition ofVAT

applicable

Contractor 41C Legal proceedings Fluctuations added to or deducted from Contract Sum CONDITIONS PART5

42-6 Architect's notice of defic

rates of wages etc. Increases or decreases in rates of wages etc. - payment or allowance Persons employed on site otherthan

Workpeople - wage-fixing body - and -4 'workpeople'

and -6 reimbursement offares 39.2 Contributions, levies and taxes 39.3

394

39.4 e 1 Sub-letwork - incorporation of provisions ork - Contractor's

39.5 to 'I 39.5 -1 Written notice by Contractor

Timing and effect of written notices

Contractor

Contract Sum

1 TO APPENDIX TERMS OF BONDS

39.6 Worketc.towhichclauses39~1 to4not

39.7 Definitionsfor use with clause

398 Percentage addition tofluctu Employer's right of reasonableobjection allowances 1.3 Written final statement - VATliabilityof

40 USEOFPRICEADJUS 1.4 Contractorto issue receipt astax invoice 40.1 AdjustmentofContra 2 Value of supply - liquidated damages to be

1.2 Employertocalculateamount oftaxdue -

Contractor - recoveryfrom Employer

disregarded 3 Employer's righttochallengetaxclaimed by

Contractor 4 Discharge of Employerfrom liability to paytax

tothecontractor 5 Awards in dispute procedures 6 Arbitration provision excluded 7 Employer's rightwhere receipt not provided

VATon determination

ANNEX 2 TO THE CONDITIONS: Supplemental Provisions for EDI

ANNEX 3 TOTHE CONDITIONS: Bond in lieu of Retention

List of amendments incorporated in this reprint 86

cator - inabilitytoadjudicate 41A.4 Disputeordifference - notice of intentionto

referto adjudication - referral 41A.5 Conduct ofthe adjudication 41A.6 Adjudicator's feeand reasonableexpenses -

payment

88

89

90

93

94

98

104

108

109

172

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

Articles of Agreement

day of 20 madethe

Footnote Ial Where the Contractor is nota limited liability company incorporated underthecompanies Acts, see footnote lqqltoclause 3513534.

@The Joint Contracts Tribunal Limited 2003 5

Recitals

Whereas

First the Employer is desirous of ibi

and has caused Drawings and Bills of Qua work to be done;

owand describe the

Second the Contractor has supplied the E Quantities (which copy is here

[e] and has provided

py of the said Bills of

Third the said Drawings n

,for the purposes ofthe Construction Industry Scheme (CIS) under n Taxes Act 1988 or any statutory amendment or modification

e is stated in the Appendix;

e application of the Construction (Design and Management) Regulations 1994 lations') to the work referred to in the First recital is stated in the Appendix;

as provided the Contractor with a schedule ('Information Release Schedule') hat information the Architect will release and the time of that release;

ifthe Employer requires any bond to be on terms otherthan those agreed between the JCT and the British Bankers' Association, the Contractor has been given copies of these terms;

Footnotes Ibl State nature of intended works.

Icl [dl Not used.

[e] Delete if not provided.

IflSee the noteson theJCT8O Fifth recital in Practice Note 27 The application of the Construction (Design and Management) Regulations 1994toContractson JCT Standard Forms of Contract' for the statutory obligations which must have been fulfilled before the Contractor can begin carrying outthe Works.


Contractor’s obligations

Contract Sum

Architect

Now it is hereby agreed as follows

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

Article 2 The Employerwill paytotheContractorthesum of

hereunder atthe times and in the manners

Article 3 The term ‘the Architect’ in the Condit

to be the Architectforthe purposeofthisContract,

cessation forthat purpose, not being a person to s after such nomination shall object for reasons ppointed pursuant to the procedures underthis

or opinion or decision or approval or instruction given or tforthetime being.

Footnotes

P With 98 (9D3)

Igl Ihl lil Not used.


Quantity Surveyor

Article 4 The term 'the Quantity Surveyor' in the Conditions shall mean

or, in the event of his death or ceasi

Article 5 Dispute ordifference- adjudication in accordance with clause41A.

Article 6.1 lkl Planning Supervisor

r or his ceasing to be the Planning ppoint as the Planning Supervisor

mean the Contractor, or, in the her contractor asthe Employer

actor pursuantto regulation 6(5) ofthe CDM Regulations. Contractor

Footnotes ljl Not used. [kl Deletearticles 6 1 and62 when onlyregulations7 end 13oftheCDM Regulationsapp1y;seeAppendix underthe reference tothe Fifth recital.


Article 7A Where the entry in the Appendix stating that "Clause 418 applies" has not been deleted then, subject to article 5, if any dispute or difference as to any matter orthing of whatsoever nature arising underthis Contract or in connection therewith, except in connection with the enforcement of any decision of an Adjudicator appointed to determine a dispute or difference arising thereunder, shall arise between the Parties either during the progress or after the completion or abandonment of the Works or after the determination of the employment of the Contractor, except under clause 31 (Construction Industry Schemeho the extent provided in clause 31.14 or under clause 3 of the VATAgreement, it shall be referred to arbitration in accordance with clause 41 B and the JCT 1998 edition of the Construction Industry Model Arbitration Rules (CIMAR). III

Dispute or difference- arbitration

Article 78 Where the entry in the Appendix stating that "Clause 41 subject to article 5, if any dispute or difference as to any arising underthis Contract or in connection therewith s during the progress or afterthe completion or aband determination of the employment of the Contractor it proceedings.

Dispute or difference- legal proceedings

[IITheJCT 1998edition oftheConstruction Industry Model Arbitration Rules (CIMAR) contains procedures for beginning an arbitration andtheappointment ofan arbitrator, the consolidation or joinder of disputes including related disputes between different parties engaged under different contracts on the same project, and fortheconduct of arbitral proceedings.The objective of CIMAR is the fair, impartial, speedy, cost- effective and binding resolution of construction

disputes. The JCT 1998 edition of the Construction Industry Model Arbitration Rules (CIMARI includes additional rulesconcerning thecalling of preliminary meetings and supplemental and advisory procedures which may, with the agreement of the parties, be used with Rule7 (short hearing), 8 (documents only) or 9 (full procedure).

Iml Not used.

P With 90 19/03) @The Joint Contracts Tribunal Limited 2003 9

This page blank P With 98 (9103) 10 @The Joint Contracts Tribunal Limited 2003

Notes [AI] AS WITNESSTHE HANDS OFTHE PARTIES HERETO

[Al l For Agreement executed under hand and NOTasadeed.

[AI] Signed by oron behalfofthe Employer

in the presence of:

[AI] Signed by oron behalfoftheContractor

in the presence of:

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . [A21 For Agreement executed as a deed under the law of England and Wales by acompany or other body corporate: [w by affixing hereto its common seal insertthe nameofthe party mentioned and identifiedon page 1 and [A41 in the presence of: then use eitherIA31 and [A41 or[A51. If the party is an individualsee note [AS].

[A31 For use if the party is using itscommonseal, which should be affixed underthe party's name.

[A41 For use of the party's officers authorised to affix itscommon seal.

[A!j]Foruseifthepartyis [A51 acting by adire acompanyregistered under the Companies Acts which is not using a commonseal: insertthe namesofthetwoofficers bywhom thecompanyis acting whoMUSTbe eithera directorand the company secretary or twodirectors, and insert their signatures with 'Directof or 'SecretaM as appropriate. This method ofexecution is NOTvalid for localauthorities or

incorporatedbyActof certain other bodies

Parliament or by charter if exemptedunders. 718(2) ofthe Companies Act 1985.

[AZI EXECUTED AS A DEED BY THE EMPLOYER hereinbefore mentioned namely

* OR-----

SECRETARY*/DIRECTOR*

Other attestation clauses are required underthe and law of Scotland.

'Deleteas appropriate [Signature] SECRETARPDIRECTOR~

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12 @The Joint Contracts Tribunal Limited 2003 This page blank P With 98 (9/03)

The Conditions

Part 1: General

1 Interpretation, definitions etc.

Methodof 1.1 reference to clauses

Articles etc. to be 1.2 read asa whole

Definitions 1 -3

Unless otherwise specifically stated a reference in the Articles of Ag or the Appendix to any clause means that clause of the Conditions.

The Articles of Agreement, the Conditions an the effect or operation of any article or clause i Appendix must therefore unless otherwise sp qualification or modification in any other artic item in orentry in the Appendix.

Unless the context Otherwise requires orthe Arti in the Appendix specifically otherwise provides, Articles of Agreement, the Conditions and the below or as ascribed in the article, clause or Appendix

Word or phrase

3.3A Quotation:

Meaning nu clau a Q,yL 3.3A of --contractor nditions IC (Conditions pursuantto of Nominated

su Cornctl.

13A Quotation: A &dylQ Appendix with

the sum of those prices being provisional sums, prime cost

thereon and the value of are included in the

Activity Schedule:

Adjudicator: appointed pursuant to clause H A a s the

n AII I ~ I '

Anal sis:

rticles or Articles of Agreement: 79 Base Date:

see clause22-2.

see clause 42-13.

the Appendix to the Conditions as completed by the parties.

a quantity in the Contract Bills identified therein as an approximate quantity.

the person appointed under clause 416 to be the Arbitrator.

the person entitled to the use of the name'Architect' and named in article3 or any successor duly appointed under article3 or otherwise agreed as the person to be the Architect.

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

the date stated in the Appendix.

Footnote In1 [Not used].

P With 98 (9B3) @The Joint Contracts Tribunal Limited 2003 13

14

Word orphrase

CDM Regulations:

Certificate of Completion of Making Good Defects:

Completion Date:

Conditions:

confirmed acceptance:

Contract Bills:

Contract Documents:

Contract Drawings:

Contract Sum:

Contractor:

Meaning

the Construction (Design and Management) Regulations 1994orany remaking thereoforanyamendmenttoa regulation therein.

see clause 17-4.

the Date for Completion as fixed and stated in the Appendix or any date fixed either under clause25 or in a confirmed acceptance of a 13A Quotation.

the clauses 1 to 37, either clau 416,41Cand42andtheSupp Agreement') annexed to the

see clause 13A.3.2.

the Billsof Quantitie have been priced by behalfofthe Parties

the Contr Agreeme

Contractor's

Date for Completion: in;theAppendix.

din the Appendix underthe reference to

ed in the Appendix under the referenceto

Domesty&&%%ycto v see clause 19.2.

the person named as Employer in the Articles of Agreement.

ionising radiations or contamination by radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel, radioactive toxic explosive or other hazardous properties of any explosive nuclear assembly or nuclear component thereof, pressure waves caused by aircraft or other aerial devices travelling at sonic or supersonic speeds.

the certificate to which clause30.8 refers.

where it is stated in the Appendixthat all the CDM Regulations apply, the plan provided to the Principal Contractor and developed by him tocomply with regulation 15(4)ofthe CDM Regulationsand,forthe purposeof regulation 10 of the CDM Regulations, received bythe Employer before any construction work underthis Contract has started; and any further development of that plan by the Principal Contractor during the progress of the Works.

@The Joint Contracts Tribunal Limited 2003 P With 98 (9/03)

Word or phrase

Information Release Schedule:

Interim Certificate:

Joint Fire Code:

Joint Names Policy:

Nominated Sub-Contract:

Nominated Sub-Contractor:

Nominated Supplier:

Numbered Documents:

Parties: A

Meaning

the schedule referred to in the Sixth recital or as varied pursuantto clause5.4.1.

any one of the certificates to which clauses30.1 and 30.7 and the entry in the Appendix under the reference to clause 3001.3 refer.

the Joint Code of Practice on the Protection from Fire of Construction Sites and Buildings Undergoing Renovation which is published b the Fire Protection A Association of Britis Fire Officers Association an is current at the Base Date, from timeto time.

see clause 22.2.

ed Sub-Con tract

Nominated Sub-

annexed to Agreement NSC/A Agreement).

as the EmDlover . . in the Articles of Agreement.

Contractor named as the Employer or Articles of Agreement.

Period of interim Certificates:

riod named in the Appendix underthe referenceto

person:- or body corporate.

tical b p l e t i o n :

&I Cfitractor:

s m :

the Architect orthe other person named in article6-1 or any successor duly appointed by the Employer as the Planning Supervisor pursuant to regulation 6(5) of the CDM Regulations.

seeclause 17.1.

see clause 13.4-1.2 Alternative A.

the Contractor or any other contractor duly appointed by the Employer as the Principal Contractor pursuant to regulation 6(5) of the CDM Regulations.

includes a sum provided forwork whether or not identified as being for defined or undefined work and a provisional sum for Performance Specified Work see clause 42.7.

Christmas Day, Good Friday ora daywhich underthe Banking and Financial Dealings Act 1971 is a bank holiday. 10)

Footnote to] Amendes necessalyif different Public Holidaysare applicable.

P With 98 (9B3) @The Joint Contracts Tribunal Limited 2003 15

~~ ~~

Word orphrase

Quantity Surveyor:

Meaning

the person named in article4oranysuccessorduly appointed under article 4or otherwise agreed as the person to be the Quantity Surveyor.

Relevant Event:

Retention:

Retention Percentage:

Site Materials:

Specified Perils:

Standard Method of Measurement:

Statutory Requirements:

Valuation:

any one of the events set out in clause25.4.

see clause30.2.

see clause30~4~1.1 and any entry in the Appendix underthe reference to clause3Om4.1-1.

all unfixed materials and goods adjacentto the Works and inten therein.

fire, lightning, explosio overflowing of water aircraftand otheraer therefrom, riot and ci Excepted Risks.

see Date/ aupQ1. KV Surveyor pursuant to clause amount of any Price Statement

ccepted pursuantto clause 13-4-1-2 ended Price Statement or any part rsuant to clause 13.4-1.2 paragraph

ibed in the First recital and shown described by or referred to in the Contract Documents

ing any changes made to these works in e with this Contract.

Contractor's responsibility

ion of the Architect to the Employer and whether or not the works, the Contractor shall remain wholly responsible for

in accordance with the Conditions, he Architect orthe clerk of works, if appointed, at any time goes on to the workshop or other place where work is being prepared to inspectthe same the Architect includes thevalue of any work, materialsorgoods in a

ayment or issuesthe certificate of Practical Completion or the Certificate of Making Good Defects.

y a further appointment replaces rsuant to, article 6.1 or replaces the ncipal Contractor, the Employer

immediately upon such further appointment notify the Contractor in writing of the e and address of the new appointee.

16

U

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- .

d

~~ ~

Giving or service of noticesor other documents

Reckoning periods of days

Employer's Representative

Applicable law

Electronic data interchange

Contracts (Rights of Third Parties)

contracting out Act 1999 -

Contract Documents

Contract Bills - relation to Articles, Conditions and Appendix

Preparation of Contract Bills - errorsin preparation etc.

1 -7

1-8

1 *9

1.10

1.1 1

1.12

2

2.1

2.2

2.2

Where the Contract does not specifically state the manner of giving or service of any notice or other document required or authorised in pursuance of this Contract such notice or other document shall be given or served by any effective means to any agreed address. If no address has been agreed then if given or served by being addressed, pre-paid and delivered by postto the addressee's last known principal business address or, where the addressee is a body corporate, to the body's registered or principal office it shall be treatedas having been effectively given or served.

Where underthis Contract an act is required to be done within a specified period of days after or from a specified date, the period shall begin immediately afterthat date. Where the period would include a day which is a Public Holiday that day shall be excluded.

The Employer may give written notice to the Contractor that fro the individual identified in the notice will exercise all thefunctio in the Conditions subject to any exceptions stated in the notice.

Whatever the nationality, residence or domicile of th contractor or supplier and wherever the Works are si law applicable to this Contract. I ~ I

Where the Appendix so states, the 'Supplemental Pr Conditions shall apply.

Notwithstanding any other provision of this Contract n purportstoconferany rightto enforce any

Contractor's obligations

The Contractor shall upon and s rryoutandcompletethe Works workmanshipofthe

re and to the extent that approval hip isa matterforthe opinion of

e satisfaction of the

II override or modifythe application or the Articles of Agreement, the Conditions or

dum bill issued as part ofthe information referred to ining a 13AQuotation), unless otherwise ny specified item or items, are to have been rd Method of Measurement;

bill issued as part ofthe information rpose of obtaining a 13A Quotation which mployer) there is any departure from the

tion referred to in clause 2.2.2.1 orany error in description or in ing any error in or omission of information in

which is the subject of a provisional sum for defined work) then such e or error or omission shall not vitiate this Contract but the departure or

r omission shall becorrected; where the description of a provisional sum for ed work does not provide the information required by the Standard Method of

t the correction shall be made by correcting the description so that it such information; any such correction underthis clause 2.2.2.2 shall

reavariation required by an instruction ofthe Architect under

y discrepancy in or divergence between any two or more of the een parts of any one of them or between

Footnotes IplToavoidany possibleconfusion overthequite distinctrolesof the Architect and Quantity Surveyor and the role of the Employer's Representative neither the Architect northe Quantity Surveyor should be appointed as the Employer's Representative.

Iql Where the Parties do notwish the law applicableto thiscontractto bethe law ofEngland appropriate amendmentstoclause VlOshould be made.

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~

I

2.3

2.3

2.3

2.3

2.3

2.4

2-4

3

4

Compliance with 4.1 Architect's instructions

.I the Contract Drawings,

-2 the Contract Bills,

-3 any instruction issued bythe Architect underthe Conditions (save insofar as any such instruction requires a Variation in accordance with the provisions of clause 13-21.

.4 anydrawingsordocuments issued bythe Architect underclause 5.3.1.1,5.4-1,5-4.2 or7, and

-5 the Numbered Documents,

heshall immediatelygivetothe Architecta written notice specify divergence, and the Architect shall issue instructions in regard th

a 1 lfthe Contractor shall find any discrepancy o respect of Performance Specified Work and receipt by the Architect of the Contractor's Statem Architect a written notice specifying the discrepan shall issue instructions in regard thereto.

-2 If the Contractor or the Architect shall find an Statement, the Contractor shall correct the S inform the Architect in writing of the correct shall be at no cost - to the Employer.

Contract Sum - additions or ded

Where in the Conditions it is pr Contract Sum or dealtwith b is ascertained in w of the next Interim

erim Certificates '

added to or deducted from the m then as soon as such amount into account in the computation I ascertainment.

Architect's instru

e 1 The Contrac th all instructions issued to him bythe respect of which the Architect is expressly sue instructions; save that:

requiring a Variation within the meaning of clause ot complyto the extent that he makes reasonable

g tothe Architect to such compliance;

clause 13.2-3clause 13Aappliestoan instruction, thevariation to tion refers shall not be carried out until

ect has issued to the Contractor aconfirmed acceptance of the 13A mw struction in respect of thevariation has been issued under clause 13A.4.1.

ys after receipt of a written notice from the Architect requiring compliance uction the Contractor does not comply therewith, then the Employer may pay other persons to execute any work whatsoever which may be

ve effectto such instruction; and all costs incurred in connection with ent may be deducted by him from any monies due orto become due to

the Contractor underthis Contract or may be recoverable from the Contractor by the Employerasa debt.

hat purports to be an instruction issued to him by the Architect the empowering Contractor may request the Architect to specify in writing the provision of the Conditions

which empowers the issue of the said instruction.The Architect shall forthwith complywith any such request, and if the Contractor shall thereafter comply with the said instruction (neither Party before such compliance having invoked the procedures underthis Contract

instructions

18 @The Joint Contracts Tribunal Limited 2003 P With 98 19/03)

4.2 continued !

relevant to the resolution of disputes or differences in order that it may be decided whether the provision specified by the Architect empowers the issue of the said instruction), then the issue of the same shall be deemed for all the purposes of this Contract to have been empowered by the provision of the Conditions specified by the Architect in answer to the Contractor's request.

Instructions to be in writing

Procedure if instructions given otherwise than in writing

4.3

4-3

.1 All instructions issued by the Architect shall be issued in writing.

.2 If the Architect purports to issue an instruction otherwise than in writing it shall be of no immediate effect, but shall be within 7 days, and if not dissentedfrom in writing bythe Archit within 7 days from receipt of the Contractor's confirmation expiration of the latter said 7 days. Provided always:

writing shall himself confirm the same,in,wri obliged to confirm as aforesaid, and thesaid date of the Architect's confirmation: and

.2 I -2 that if neither the Contractor themannerand atthetimea

deemed to have taken effect on th writing bythe Architect.

5 Contract Documents - other

Custody of 5.1 The Contract Drawi in the custodyofthe Architect or Contract Bills and le times for the inspection of the Contract Drawings

the Quantity Survey Employer and ofthe

e Architectwithout charge to the ave been previously so provided) with: Contractor shall pr

5.2 -1 onecopyce yer of the Contract Documents;

5.2 -2 two further c

5.2 -3 two

Descriptive schedulesetc. - master programmeof Contractor

I

thoutcharge tothe Employer shall provide the Architect (unless he reviously so provided) with 2 copies of his master programme for he Works and within 14 days of any decision by the Architect under

or ofthe date of issue of a confirmed acceptance of a 13A Quotation

tained in the descriptive schedules or other like documents referred to in .1 (norin the master programme fortheexecution ofthe Works or any t to that programme or revision therein referred to in clause 5.3.1.2) shall

impose any obligation beyond those imposed by the Contract Documents. lsl

copies of the information referred to in the Information Release Schedule are released at the time stated in the Schedule provided that the Employer and Contractor may agree, which agreement shall not be unreasonably delayed orwithheld, tovary any such time.

I

Footnotes IrlTo be deleted if no master programme is required. [sl Words in parenthesesto bedeleted if nomaster programme is required.

I P With 98 (9/03) @The Joint Contracts Tribunal Limited 2003 19

Provision of further drawings or details

Availability of certain documents

Return of drawings etc.

Limits to use of documents

lssueof Architect's certificates

Supply of as-built drawingsetc. - Performance Specified Work

Statutory Requirements

c

5.4 -2 Except to the extent included in the Information Release Schedule the Architect as and when from time to time may be necessary without charge to the Contractor shall provide him with 2 copies of such further drawings or details which are reasonably necessary to explain and amplify the Contract Drawings and shall issue such instructions (including those for or in regard to the expenditure of provisional sums) to enable the Contractor to carry out and complete the Works in accordance with the Conditions. Such provision shall be made or instructions given at a time when, having regard to the progress of the Works, or, where in the opinion ofthe Architect Practical Completion of the Works is likely to be achieved before the Completion Date, having regard to such Completion Date, it was reasonably necessary forthe Contractorto receive such further drawings or details or instructions. Wherethe Contractor is aware and has reasonable grounds for

Contractor to receive such further drawings or details or instruc shall, if and to the extentthat it is reasonably practicab

5.5 The Contractor shall keep one copy of the Contract of Quantities, one copy of the descriptive schedule

clause 5.4.2 upon the site so as to be available to the reasonable times.

likenaturewhich bearthenameoftheArc

None ofthe documents provided in a mentioned in clause Sshall be Contract, and neither the Empl useexcept forthe purposes of

5-7 tion Release Schedule or ose otherthan this

5.8 Except where 0th under the Conditi

cate to be issued by the Architect mmediately upon the issue of y thereof to the Contractor.

actor shall without further charge to the

struction on the expenditure of the provisional sum

ices, fees and charges

the Contractor shall comply with, and give all notices required by, any instrument, rule or order made under any Act of Parliament,

aw of any local authority or of any statutory undertaker which regard to the Works or with whose systems the same are or will

requirements to be socomplied with being referred to in the as 'the Statutory Requirements').

actor shall find any divergence between the Statutory Requirements and all e documents referred to in clause 2.3 or between the Statutory Requirements truction ofthe Architect requiring a Variation issued in accordance with he shall immediately give to the Architect a written notice specifying the

lfthe Contractor gives notice under clause 6.1-2 or ifthe Architect shall otherwise discover or receive notice of a divergence between the Statutory Requirements and all or any of the documents referred to in clause 2-3 or between the Statutory Requirements and any instruction requiring a Variation issued in accordance with clause 13.2, the Architect shall within 7 days ofthe discovery or receipt of a notice issue instructions in relation to the divergence. If and insofar as the instructions require the Works to bevaried, they shall be treated as ifthey were Architect's instructions requiring a Variation issued in accordance with clause 13-2.


1

Divergence - Statutory Requirements and the Contractor's Statement

Change in Statutory Requirements after Base Date

Feesorcharges

6.1

6- 1

6- 1

6.1

6.2

6.2

6.2

6.2

If in anyemergencycompliancewithclause6-1.1 requirestheContractortosupply materials or execute work before receiving instructions under clause 6-1-3 the Contractor shall supply such limited materials and execute such limited work as are reasonably necessary to secure immediate compliance with the Statutory Requirements.

The Contractor shall forthwith inform the Architect of the emergency and of the stepsthat he istaking underclause6.1.4.1.

Workexecuted and materialssupplied bythe Contractor underclause6.1-4.1 shall be treated as ifthey had been executed and supplied pursuant to an Architect's instruction requiring a Variation issued in accordance the emergency arose because of a divergence betwee and all or any of the documents referred to in clause 2. Requirements and any instruction requiring a Variati clause 13.2, and the Contractor hascomplied with cla

Provided that the Contractor complies with clause 6 liable to the Employer underthis Contract if the W Requirements where and to the extent that such from the Contractor having carried out work in referred to in clause 2.3 or with any instruction Architect in accordance with clause 13.2.

If the Contractor or the Architect sha Requirements and any Contractor's written notice specifying the diverge writing of his proposed amendmen issue instructions in regard the shall besubjecttoclause 42.15

ence;and the Architect shall ance with such instructions r save as provided in clause

6.1-7.

Requirements which necessitates Worksuch alteration or

underclause 13-2 requiring a Variation.

The Contractor against liability in respect of any fees ndable under any Act of Parliament, arliament, or any regulation or byelaw

undertaker in respect of the Works. The amount of rates ortaxes otherthan value added tax) shall be any such fees or c

added to the Cont

or materials or goods supplied by a local authority or sa Nominated Sub-Contractor or as a Nominated Supplier; or

rovisional sum in the Contract Bills.

19and35shall notapplytotheexecutionofpartoftheWorks bya such work solely in pursuance of its sub-contractors within the terms ofthis

Exclusion of provisions on DornesticSub- Contractors and Nominated Sub- contractors

use where the Appendix states that all the CDM Regulations apply

that the Planning Supervisor carries out all the duties of a planning supervisor under the CDM Regu1ations;and

where the Contractor is not the Principal Contractor, that the Principal Contractor carries out all the duties of a principal contractor underthe CDM Regulations.

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21

Contractor - compliancewith dutiesof a principal contractor

6A.2 Where the Contractor is and while he remains the Principal Contractor, the Contractor shall comply with all the duties of a principal contractor set out in the CDM Regulations; and in particular shall ensure that the Health and Safety Plan has the features required by regulation 15(4) of the CDM Regulations. Any amendment by the Contractor to the Health and Safety Plan shall be notified to the Employer, who shall where relevantthereupon notify the Planning Supervisor and the Architect.

Successor appointed to the Contractoras Principal Contractor

'

6A.3 Clause 6A-3 applies from the time the Employer pursuant to article 6.2 appoints a successorto the Contractor as the Principal Contractor. The Contractor shall comply at no cost to the Employer with all the reasonable requirements of the Principal Contractor to the extent that such requirements are necessary for compliance with the CDM Regulations;

Health andsafety file

6A.4 Within the time reasonably required in writing bythe Plannin

not the Principal Contractor, to the Principal Cont reasonably requires for the preparation, pursuan

7 Levels and setting out of the Works

The Architect shall determine any level Works, and shall provide the Contract0 such information as shall enable the C

arising from hisown may instruct that suc errors not required t

Employer the Architect ate deduction for such

Kindsand 8.1 -1 Allma e of the kinds and standards standards etc. any Performance Specified Work, in

8.1 *2 All

provided thatworkmanshipshall be tothe reasonable

carried out in a proper and workmanlike manner and in accordance

ctor shall take all reasonable steps to encourage employees and agents of the and sub-contractors employed in the execution of the Works to be registered s under the Construction Skills Certification Scheme (CSCS) or any , or qualified under an equivalent recognised qualification scheme.

ctor shall not substitute any materials or goods described in any 's Statement for Performance Specified Work without the Architect's

-1 The Contractor shall upon the request of the Architect provide him with vouchers to prove thatthe materials and goods comply with clause 8.1.

goods

22 @.The Joint Contracts Tribunal Limited 2003

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P With 98 (9/03)

Executed work

Inspection -tests

Powers of Architect - work not inaccordance with the Contract

Powers of Architect - non- compliance with clauseE.l.3

Exclusion from the Works of persons employed thereon

n

8-2

8.3

8.4

8.4

8.4

8.4

8.4

8.5

-2 In respect of any materials, goods or workmanship, as comprised in executed work, which are to be to the reasonablesatisfaction of the Architect in accordance with clause 2.1. the Architect shall express any dissatisfaction within a reasonable time from the execution of the unsatisfactory work.

The Architect may issue instructions requiring the Contractorto open up for inspection any work covered up or to arrange for or carry out any test of any materials or goods (whether or not already incorporated in the Works) or of any executed work, and the cost of such opening uportesting (togetherwith the cost of making good in consequencethereof) shall be added to the Contract Sum unless provided for in the Contract Bills or unless the inspection or test shows that the materials, goods orwork are not in accordance with this Contract.

n If anywork, materials orgoods are not in accordance with this

notwithstanding the power of the Architect under clause regard to the removal from the site of all or any of such

without prejudice to the generality of his powers, may:

Nominated Sub-Contractor) and with the agre such work, materials or goods to remain and c

I

I

I

after consultation with the Contractor

h instructions are so ition to the Contract Sum necessary and notwithstanding

shall be made and no extension

d to these Conditions (following clause 42), issue as are reasonabl the Architect the

r test, and notwithstanding II be made. Clause 25.4.5.2 shall

Where there is a clause8.1-3in regard tothecarryingoutofthe he Architect, without prejudice to the generality

h the Contractor (who shall immediately consult ctor), issue such instructions whether requiring a

notwithstanding clauses 13.4and 25 and 26 no and no extension of time shall be given in

essary as a consequence thereof. To the extent

8.6 /ot unreasonably orvexatiously) issue instructions requiring the employed thereon.

respectofthesupplyand useincarryingoutthe

relation to any such articles, processes or inventions. U

Architect's instructions - treatment of royalties etc.

9.2 Provided that where in compliance with Architect's instructions the Contractor shall supply and use in carrying outthe Works any patented articles, processes or inventions, the Contractor shall not be liable in respect of any infringement or alleged infringement of any patent rights in relation to any such articles, processes or inventions and all royalties


~~

9.2

10

11

12

13

Definition of 13.1 Variation

13.1

con tin ued.

damages or other monies which the Contractor may be liable to pay to the persons entitled to such patent rights shall be added to the Contract Sum.

Person-in-charge

The Contractor shall constantly keep upon the site a competent person-in-charge and any instructions given to him by the Architect or directions given to him by the clerk of works in accordance with clause 12 shall be deemed to have been issued to t h m

Access for Architect to the Works

The Architect and his representative and to the workshops or other places of the Con Contract, and when work is to be so prepared in Sub-Contractor or a Nominated Sub contractso faras possiblesecureas the Architect and his representatives an such right effective. Access in accordan restrictions of the Contractor or any Dome Contractor as are necessary to protect any Domestic or Nominated Sub-Contractor in

such reasonable

Clerk of works

owered by the Conditions to issue

onfirmed then as from the date of

Conditions means:

of the design, quality or quantity of the Works including

su bstitution of any work,

-2 th alteration of the kind or standard of any of the materials or goods to be used in h $ o r k s ,

from the site of any work executed or materials or goods brought e Contractor for the purposes of the Works other than work materials h are not in accordance with this Contract;

e Employer of any obligations or restrictions in regard to the matters -1.2.1 to 13.1-2.4orthe addition to or alteration or omission of any restrictions so imposed or imposed by the Employer in the Contract

-2 -1 accesstothesiteoruseofanyspecific partsofthesite;

-2 -2 limitations of working space;

-2 -3 limitations of working hours;


13.1 e2 -4 the execution or completion of the work in any specific order;

but excludes

13.1 -3 nomination of a sub-contractor to supply and fix materials or goods or to execute work of which the measuredquantities have been set out and priced bythe Contractor in the Contract Bills for supply and fixing or execution bythe Contractor.

Instructions 13.2 -1 The Architect may issue instructions requiring a Variation. requiringa Variation 13.2 -2 Any instruction under clause 13.1-2 shall be subject to the Contractor's right of

reasonableobjection setout inclause 4.1-1.

13.2 e3 Thevaluation of a Variation instructed under clause 13-2-1 clause 13.4.1-1 unless the instruction statesthat the treat Variation are to be in accordance with clause 13Aor unle clause 13A-8 applies. Where the instruction so states'cla Contractorwithin 7 days (or such other period as may beagre instruction states in writing that he disagrees with th instruction. If the Contractor so disagrees, claus and thevariation shall not becarried out unless Variation is to be carried out and is to be valued p

13-2 e4 The Architect may sanction in writing anyvariati ractor othewise than pursuanttoan instruction ofthe Arch' A-

13-2 a 5 No Variation required byth tioned by him shall vitiate this Contract.

Instructions on 13.3 The Architect shall issue instru provisional sums

13.3 e1 theexpendit

13.3 .2 the expendit

Valuationof 13.4 .1 -1 Subjectt Variations and provisional sum workandwork covered by an Approximate Quantity

ruction of the Architect or su bsequently

Conditions is to be treated as if itwere a Variation noftheArchitect underclause 13.2,and

Contractor in accordance with instructions by the diture of provisional sums which are included in the

ontra Bills, and

I or exe uted bytheContractorforwhich an Approximate Quantity has b n in lud d in the Contract Bills

- . agreed bythe Employer and the Contractor, bevalued (in

that the Price Statement or amended Price Statement is B in clause 13.4.1.2. Clause 1341.1 shall not apply

the Architect has issued a confirmed acceptance

/7 Alt atiw@ A: Contractor's Price Sfaf@ment ( m q r a p h :

A1 Without prejudice to his obligation to comply with any instruction or to execute anyworktowhichclause 13.4-1.1 refers,theContractormaywithin21 days from receipt ofthe instruction orfrom commencement ofwork forwhich an Approximate Quantity is included in the Contract documents or, if later, from

[tl Alonger period than7daysmayneedto beagreed where the Variation involvesa major input from sub- contractors.

[ul If the Architect nominates a subcontractor or supplier by any instructionsunder clause 13.3.1,then the provisionsof Part2oftheConditionsapplytosuch nominations.

Footnotes


I 13.4 .1 -2 A1 continued

receipt of sufficient information to enable the Contractorto prepare his Price Statement, submit to the Quantity Surveyor his price ('Price Statement') for such compliance or for such work.

The Price Statement shall state the Contractor's price for the work which shall be based on the provisions of clause 13.5 (valuation rulesland may also separately attach the Contractor's requirements for:

-1 any amountto be paid in lieu of any ascertainment underclause26-1 of direct loss and/or expense not included in an in any previous ascertainment under clause 26;

a2 any adjustmentto the timeforthecompletio that such adjustment is not included in any r that has been made bythe Architect underc acceptance of any 13A Quotation. (Seepara

A2 Within 21 days of receipt of a Price consultation withthe Architect,

either

-1 thatthe Price Statement isac m u -2 that the Price

or or

-2 that the Price Statem , or a art there is t accepted. F \ W en accepted the price in that been accepted shall in ed from the Contract Sum.

reof has not been accepted:

in his notification tothe Contractor the

an amended Price Statement which is urveyor after consultation with the Architect;

ceipt of the amended Price Statement the Contractor ot he accepts the amended Price Statement or part paragraph A3 shall apply to that amended Price of; if no statement within the 14day period is made

epted, in whole or in part,

entthatthe amended Price Statement is not accepted by the

of clause 41A.

ragraph A2 the Price the Contractor may, on or

2 refers, refer his Price r in accordance with the

A6 Where a Price Statement is not accepted by the Quantity Surveyor after consultation with the Architect or an amended Price Statement has not been accepted by the Contractor and no reference to the Adjudicator under paragraph A4.3 or paragraph A5 has been made, Alternative 6 shall apply.

A7 .1 Where the Contractor pursuantto paragraph A1 hasattached his requirements to his Price Statement the Quantity Surveyor after consultation with the Architect shall within 21 days of receiptthereof notify the Contractor

26 @The Joint Contracts Tribunal Limited 2003 P With 98 (9/031

t

eitherthatthe requirement in paragraphA1-1 in respect ofthe amount to be paid in lieu of any ascertainment under clause 26.1 is accepted or thatthe requirement is not accepted and clause 26.1 shall apply in respect of the ascertainment of any direct loss andlor expense; and

-1 -2 eitherthatthe requirement in paragraph Al-2in respect of an adjustmentto the time for the completion of the Works is accepted or that the requirement is not accepted and clause 25 shall apply in respect of any such adjustment.

A7 -2 If the Quantity Surveyor has not notified the Contractor within the 21 days specified in paragraphA7-1, clause25and clause26 requirements had been attached to the Price State-

ply as if no

The Valuation shall be made by the Quantitv

-1 -2 Alternative6

provisionsof clauses 13.5.1 to13.5.7.

-1 .3 Thevaluation of Variations to the sub-contr

instructions issue Contractor for wh

Emdoyer) be made in accordance NSCIC:

13.4 .2 Where underthe instruction oft iture of a provisional sum tendersforthe work

ted byoron behalfofthe the accepted tender of the

struction of the Architect

Valuation rules 13.5 a 1 To the extent th ecution of additional or substituted work or to the execution of workfor which an

ontract Bills such workshall be measured and

e1 -1 wheret work is of similar character to, is executed under s not significantly change the quantity of, work set out nd pricesfortheworksosetoutshall determinethe

k is of similar character to work set out in the similar conditions thereto andlor

gesthe quantity thereof, the rates and prices forthe workso set sis for determining the valuation and the valuation shall include a

rence in conditions and/or quantity;

itional or substituted work is not of similar character to workset out in illstheworkshall bevalued atfair ratesandprices;

ntity is a reasonably accurate forecast of the quantity of eforthe Approximate Quantityshall determine the

the Approximate Quantity is not a reasonably accurate forecast of the ty ofwork required the rate or price forthat Approximate Quantity shall be the ordeterminingtheVaIuation and thevaluation shall includeafairallowance

for such difference in quantity.

Provided thatclause 13-5-1.4and clause 13.5-1.5shall onlyapplytotheextentthatthe work has not been altered or modified otherthan in quantity.

-2 To the extent that the Valuation relates to the omission of work set out in the Contract Bills the rates and pricesfor such worktherein set out shall determine thevaluation of the work omitted.

13.5


13.5 .3 In any valuation of work under clauses 13-5.1 and 13.5-2:

-3 -1 measurement shall be in accordance with the same principles as thosegoverning the preparation of the Contract Bills as referred to in clause 2.2.2.1;

.3 -2 allowance shall be made for any percentage or lump sum adjustments in the Contract Bills; and

-3 .3 allowance, where appropriate, shall be made for any addition to or reduction of preliminary items of the type referred to in the Standard Method of Measurement; provided that no such allowanceshall be made in respect ofcompliance with an Architect's instruction forthe expenditure of a provisional s

13.5 -4 To the extent thatthe Valuation relates to the execution of which cannot properly bevalued by measurement theVal

Contractor in the Contract Bills; or

-4 -2 where the work is within the province e said Institution

and issued a defi calculated in acc

Provided that in any case workmen's names, the pl

daily spent upon the work, the ed shall be deliveredfor

13.5 -5 If

as to the expenditure of a provisional sum for e instruction forthat workdiffers from the n the Contract Bills or

kfor which an Approximate Quantity is included in the Contract s the quantity is more or less than the quantity ascribed to that

eated as if it had been the subjectof an instruction ofthe Architect under clause 13.2 which shall be valued in accordance with the

of Performance Specified Work shall includeallowance forthe work involved in the preparation and

other documents;

or substituted work related to Performance Specified the rates and prices of work of a similar character set

out in the Contract Bills or the Analysis making due allowance for any changes in the conditions underwhich the work iscarried outand/or any significant change in the quantity of the workset out in the Contract Bills or in the Contractor's Statement. Wherethere isnoworkof asimilarcharactersetout inthecontract Billsorthe Contractor's Statement afairvaluation shall be made;

Footnote [VI There are three Definitions to which clause 13.5.4.2 refers namely those agreed between the Royal Institution and the Electrical Contractors Association,

the Royal Institution and the Electrical Contractors AssociationofScotlandandthe Royal Institutionandthe Heating andventilating Contractors Association.

28 @The Joint Contracts Tribunal Limited 2003 P With 98 i9/03)

13.5 continued

-6 -3 the Valuation of the omission of work relating to Performance Specified Workshall be in accordance with the rates and prices for such workset out in the Contract Bills or the Analysis;

-6 -4 anyvaluationofworkunderclauses 13.5.6.2and 13.5.6.3shall includeallowance for any necessary addition to or reduction of preliminary items ofthe type referred to in the Standard Method of Measurement;

.6 -5 where an appropriate basis of a fair valuation of additional or substituted work relating to Performance Specified Work is daywork the Val accordance with clauses 13.5.4-1 or 13.5.4.2 and the provis apply;

-6 -6 if

compliance with any instruction underclau Performance Specified Work or

compliance with any instruction as to th

42.7.2 andlor 42.7.3 for such Pe

substantially changes the conditi (including any other Performa

relevant, underclau rdance with the

erwork (including as if it had been the subject

er clause 13.2 or, if

13.5 -7 Tot execution of additional or ent that the valuation of any work

Provided that no all

would be reimbur

Contractor's right 63.6 Where it is necess to bepresentat measurement

erclause 13.5foranyeffectupon the regular

Valuations - Employed Contractor agreement - 13A Quotation for aVeriationend Variations thereto - addition toor deduction from Contract

Contractor to

aluation under clause 13.4.1.1, to an agreement by the Employer clause 13-4.1-1 refers, to a 13AQuotation forwhich the Architect

I I

uction - Contractor's quotation in compliance with the instruction

I only apply to an instruction where pursuanttoclause 13.2-3 the Contractor

ion to which clause 13A is to apply shall have provided sufficient

eed with the application of clause 13Ato such instruction.

Quotation from the Nominated Sub-Contractor in accordance with clause 3.3A.1.2 of the Conditions NSC/C. lfthe Contractor reasonably considersthat the information provided is not sufficient, then, not later than 7 days from the receipt ofthe instruction, he shall request the Architect to supply sufficient further information.

Footnote [wlTheinformation provided totheContractorshould norrnallybeinasimilarformattothetprovidedetthe tenderstege;and may be inthe formofdrawing sandfor

inanaddendum billofquantitiesendforin a specification or otherwise. If an addendum bill is providedseethe relevant provisionsinclause2-2.2.


13A-1 -2 The Contractor shall submittotheQuantity Surveyor his 13AQuotation incompliance with the instruction and shall include therein 3.3AQuotations in respect of any parts of the Variation which relate tothe workof Nominated Sub-Contractors not laterthan 21 daysfrom

the date of receipt of the instruction

or if applicable, the date of receipt bythe Contractor of the sufficient further information to which clause 13A.1-1 refers

whichever date is the later and the 13AQuotation shall remain open for acceptance by the Employer for 7 days from its receipt bythe Quantity Survey

13A-1 .3 The Variation for which the Contractor has submitted his 13 carried out by the Contractor or as relevant by any Nomina receipt by the Contractor of the confirmed acceptance iss toclause 13A-3.2.

Content of the Contractor's 13A Quotation

13A-2 The 13A Quotation shall separately comprise:

13A.2 e1 the value of the adjustment to the Contract Sum 13A.2-3 refers) including therein the effect of th

reference, where relevant, to the ra where appropriate, allowances for

erwork including

13A.2 e 2 any adjustmentto the time require orks (including where Completion given in the in any revision of the

relevant stating an earlier Corn Appendix) to the extent that su Completion Date that has bee confirmed acceptance of an

er clause 25.3 or in his

13A-2 -3 the amount to b r'clause 26.1 of direct loss and/or ion or in any previous

ascertainment

13A-2 .4 a fair and reaso cost of preparing the 13A Quotation;

tion, shall provide indicative information in statements on

13A.2 .5 theaddition res rces(if y) quiredtocarryouttheVariation;and tu? 13A-2 -6 them

hall contain reasonably sufficient supporting information to by oron behalfofthe Employer.

Acceptanceof 13AQuotation - Architect's Confirmed acceptance

o accept a 13A Quotation the Employer shall so notify the t later than the last day of the period for acceptance stated in

ect shall, immediately upon that writing to the Contractor (in clause irmed acceptance'):

Contractor isto carry outthevariation;

stment ofthe Contract Sum, including therein any amounts'to which clause and clause 13A-2.4 refer, to be made for complying with the instruction

equired bythe Contractor for completion ofthe Works and the revised Completion Date arising therefrom (which, where relevant, may be a date earlier than the Date for Completion given in the Appendix) and, where relevant, any revised period or periodsforthe completion of the Nominated Sub- Contract work of each Nominated Sub-contractor; and

30

~


13A-3 continued

I

Contractor's 13AQuotation not accepted

Payment fora 13A Quotation

Restriction on use of a 13A Quotation

Numberofdays- clauses 13A.1.1 and/or 13A.1.2

Variations towork forwhich a confined acceptance of a 13AQuotation has been issued - valuation

Quality and quantity of work included in Contract Sum

Contract Sum - only adjusted underthe Conditions - errors in computation

.2 -4 that the Contractor, pursuantto clause 3.3A-3ofthe Conditions NSC/C, shall accept any3-3AQuotation included in the 13A Quotation for which the confirmed acceptance has been issued.

13A.4 IftheEmployerdoes notacceptthe 13AQuotation bytheexpiryofthe period foracceptance stated in clause 13A.1-2, the Architect shall, on the expiry of that period,

either

13A-4 -1 instructthatthevariation isto becarriedoutand isto bevalued pu 13-4-1; Rause

13A-5 If a 13A Quotation is not accepted a fair and rea Contract Sum in respect of the cost of preparat Quotation has been prepared on a fair and reas Employer of a 13A Quotation shall not of itself be evi prepared on a fair and reasonable basis.

13A.6 lfthe Architect has not, underclause 13A.3- Quotation neitherthe E purpose whatsoever.

13A-7 The Employer and the Contractor m in clause 13A-1.1 and/o writing bythe Employerto the Nominated Sub-Contractor of

e the number of days stated ent shall beconfirmed in

the Contractor shall notify each ction pursuantto thisclause

13A.7.

13A-8 lfthe Architect toworkforwhich a 13AQuotation a confirmed acceptance to

the Variation.

included in the Contract Sum shall be deemed to be that

be adjusted or altered in any way whatsoever otherwise than in provisions of the Conditions, and subject to clause 2-2-2.2 any not in the computation of the Contract Sum shall be deemed to

x - splppDementral provisions

n the supplemental provisions pursuant hereto (hereinafter called the 'VAT ' means the value added tax introduced by the Finance Act 1972 which is

D A

der the care and management ofthe Commissioners of Customs and Excise (hereinafter nd intheVATAgreementcalled 'theComrnissioners').

P With 98 (9/031 @The Joint Contracts Tribunal Limited 2003

~~~ ~~ -~ -~

I Contractsum - exclusive of VAT

Possible exemption from VAT

Unfixed materials and goods - on site

Unfixed materials and goods - off-site

Certificateof Practical Completion

Defects, shrinkages or other faults I

f - 7

15-2 Any reference in the Conditions to 'Contract Sum'shall be regarded as such Sum exclusive of any tax and recovery by the Contractor from the Employer of tax properly chargeable by thecommissioners on the Contractor underor byvirtue ofthevalue AddedTax Act 1994or any amendment or re-enactment thereof on the supply of goods and services underthis Contractshall be underthe provisionsofclause 15and OftheVATAgreement. Clause 1Aof theVATAgreement shall only apply where so stated in the Appendix. [XI

15-3 To the extent that after the Base Date the supply of goodsand services to the Employer becomes exempt from the tax there shall be paid to the Contractor an amount equal to the loss of credit (inputtax) on the supply to the Contractor of goods and services which contribute exclusively to the Works.

16

16.1

Materials and goods unfixed or off-site

Unfixed materials and goods delivered to, placed on or adjace

withheld. Wherethevalue of any such mate been included in any Interim Certificate und

16-2 Where thevalueof any'listed items' has in

the Employer, such listed items

storage, handling a ause 16.1 (exceptthe

17.1 When in the op ical Completion of the Works is achieved and the clause 6A.4, and, if relevant, the Contractor has

uilt drawings etc. - Performance Specified Work), ffect and Practical Completion of the Worksshall act to have taken place on the day named in such

ther faults which shall appearwithin the Defects Liability Period

o otherwise instruct then an appropriate deduction in respect of any such ages or other faults not made good shall be made from the Contract Sum.

g clause 17.2theArchitect maywhenever he considers it necessaryso to do requiring any defect, shrinkage or other fault which shall appearwithin

Period and which is dueto materials orworkmanship not in accordance ith this Contract orto frost occurring before Practical Completion of the Works, to be made

shall within a reasonable time after receipt of such instructions Employer unlessthe Architectwith theconsent ofthe

U

Footnote IxlClause 1Acanonlyapplywhere thaContractor is satisfied atthedate the Contract isentered intothat his outputtaxonellsuppliestothe Employer underthe Contractwill beeteithera positiveorazero rateoftex.


Certificate of Completion of Making Good Defects

Damage by frost

Employer's wish - Contractor's consent

Practical Completion - relevant pan

Defects etc. - relevant part

Insurance - relevant part

Liquidated damages - relevant part

17-3

17.4

17.5

18

98-1

18.1

118.1

18.8

18.1

continued

Employer shall otherwise instruct; and if the Architect does so otherwise instruct then an appropriate deduction in respect of any such defects, shrinkages or other faults not made good shall be made from the Contract Sum. Provided that no such instructions shall be issuedafterdeliveryofascheduleof defectsorafter 14daysfrom theexpirationofthe Defects Liability Period.

When in theopinion oftheArchitectanydefects,shrinkagesorotherfauItswhich he may have required to be made good under clauses 17.2 and 17-3 shall have been made good he shall issue a certificate to that effect, and completion of making good defects shall be deemedforall the purposes ofthisContractto have taken pl certificate (the'certificate of Completion of Making Good Defects').

In nocaseshalltheContractorbe requiredto makegoodat his which may appear after Practical Completion, unless the Arch damage is due to injury which tookplace before Practical CO

Partial possession by Employer

If at anytime ortimes before the date of issue bythe Completion the Employer wishes to tak consent of the Contractor (which conse been obtained, then, notwithstanding a Contract, the Employer may take posses the Contractor on behalf of the Ernp the Workstaken into possession an clauses 18,20-3,22.3.1 and22C.1 re

e Works and the orwithheld) has

ct shall thereupon issue to the part or parts of took possession (in e relevant date'

respectively).

2 Practical Completion of the e Defects Liability Period in

inkages or other faults in the e good under clause 17-2orclause

hecontractor underclause22Aorofthe -2 whichever is applicable to insure shall not further or otherwise; and where clause

paid by the Contractor or withheld or deducted by the Employer ect of any period during which the Works may remain incomplete ant date there shall be paid such sum as bears the same ratio to

be paid apart from the provisions of clause 18 as the Contract Sum s t amount ntained therein in respectof the relevant part bears to the Contract @Z;;ies;.the ployer may give a notice Contractor. pursuanttoclause30~1~1~4that hewill deduct

A s Q w c o either e Employer nt ra ct. nor the Contractor shall, without the written consent of the other,

Where clause 19-12 is stated in the Appendix to apply then, in the event of transfer by the Employer of his freehold or leasehold interest in, or of a grant bythe Employer of a leasehold interest in, the whole ofthe premisescomprising the Works, the Employer may at any time after Practical Completion of the Works assign to any such transferee or lessee the right to bring proceedings in the name of the Employer (whether by arbitration or litigation) toenforceanyofthetermsofthisContract made forthe benefit of the Employer hereunder. The assignee shall be estopped from disputing any enforceable agreements reached between the Employer and the Contractor and which


19.1 *2

Sub-letting - 19.2 *1 Domestic Sub- Contractors - Architect's consent

19.2 a 2

Sub-letting - list 19-3 -1 inContrect Bills

19.3 *2

*2

19-3 -3

continued I arise out of and relate to this Contract (whether or not they are or appear to be a derogation from the right assigned) and made priorto the date of any assignment.

A person to whom the Contractor sub-lets any portion of the Works other than a Nominated Sub-Contractor is in this Contract referred to as a 'Domestic Sub- contractor'.

The Contractor shall not without the written consent of the Architect (which consent shall not be unreasonablydelayed or withheld) sub-let any portion ofthe Works. The Contractor shall remain wholly respon in all respects in accordance with clause portion ofthe Works.

Where the Contract Bills provide that certain work measur those Bills and priced by the Contract0 or annexed to the Contract Bills and se the Contractorthe provisions of clause 19.3shall a

.1 The list referred to in clause 19.3.1 Eitherthe Employer (orthe Architec entitled with the consent oftheothe delayed or withheld, to add iviadditi execution of a binding sub-contract a Y - Y W

.2 If at any time prior tot whatever reason less

ct agreement and for are able and willing to

reement (which agreement d [vi the names of other

ontractor who may sub-let to a e with clause 19.2.

19.4 ltshall beacondi to which clause 19-2 or 19.3 refers that:

b-Contractor under the sub-contract shall determine n (for any reason) of the Contractor's employment

6.1 oftheseconditions (inclauses 19-4-2.2to.4called'the Main ds delivered to, placed on or ntended thereforshall not be

the Works unless the Contractor has consented in hich consent shall not be unreasonably delayed or

accordance with clause 30.2 of the Main Contract Conditions, the value of materials or goods shall have been included in any Interim Certificate ich the amount properlydue to the Contractor shall have been paid bythe

ods shall be and become the shall not deny that such materials

are and have become the propertyofthe Employer;

Footnote

34

IylAnysucheddition must beinitialled by oron behalfof the Parties.

@The Joint Contrects Tribunal Limited 2003

-2

*2

19.4 -3

Nominated Sub- 19.5 -1 contractors

19.5 -2

-3 provided that if the Contractor shall paythe sub-contractor for any such materials or goods before the value therefor has, in accordance with clause 30-2 of the Main Contract Conditions, been included in any Interim Certificate under which the amount properly due to the Contractor has been paid bythe Employertothe Contractor, such materials or goodsshall upon such payment by the Contractor be and become the property of the Contractor;

.4 the operation of clauses 19.4.2.1 to -3 hereof shall be without prejudice to any property in any materials or goods passing to the Contractor as provided in clause 30-3 of the Main Contract Conditions (off-site materials or

~

I the sub-contract shall provide that if the Contractor fails any partthereof, duetothesub-c sub-contract, the Contractor shal properly paid simple interestthe payment of such simple interest shall be treated as the Contractor; that the rate of Rate of the Bankof England which iscurrent at became overdue; and that any payment of sim be construed as a waiver by th principal amountsduefrom theC and within the time stated in, the su underthe sub-contract in regardto the Contractor under the sub-contrac by the contractor properly to pay any e sub-contract to the sub- contractor#

The provisions of this Contra Sub-Contractors are set out in Part e Conditions the Contractor shall

the Works in all respects in n of a sub-contractor to

self required, unless otherwise agreed, to work which is to be carried out by a

20 Injury to perso d indemnity to Employer

Liabilityof Contractor -

toEmployer

II indemnifythe Employer against, any expense, oeverarising under any statute or at common law h of any person whomsoever arising out of or in the the Works, except to the extent thatthe same is due any person for whom the Employer is responsible

d or otherwise engaged bythe Employerto whom clause 29

personal injury or death - indemnity

II indemnify the Employer against, any expense, aim or proceedings in respect of any loss, injury or damage whatsoever to alorpersonal insofarassuch loss, injury ordamagearisesoutofor inthe. reasonofthecarryingoutofthe Worksandtothe extentthatthesame isdue

or of any person employed or engaged upon or in connection with the

Contractor - injury or damage

ence breach of statutory duty, omission or default of the Contractor, his

gents or of any other person who may properly be Works or any part thereof, his servants or agents, ployed, engaged or authorised by him or by any uting work solely in pursuance of its statutory nity is subject to clause 20.3 and, where clause to any property required to be insured

P With 98 (9/03)

Injury or damage to property - exclusionofthe Works and Site Materials

20.3 -1 Subjectto clause 20-3.2 the reference in clause 20.2 to 'property real or personal'does not include the Works, work executed and/or Site Materials up to and including the date of issue of the certificate of Practical Completion or up to and including the date of determination of the employment of the Contractor (whether or not the validity of that determination is disputed) under clause 27 orclause 28 or clause 28A or, where clause 22Capplies, underclause27 or clause 28orclause28Aor clause22C-4~3,whichever is the earlier.

.2 If clause 18 has been operated then, in respect of the relevant part and as from the relevant date, such relevant part shall not be regarded as 'the Works'or 'work executed'

20.3

Contractof s insurance - personal injury or death - injuryor damage to property

Insurance - liabilityetc. of Employer

for the purpose of clause 20-3.1.

21 Insurance against injury to persons or property

21.1.1.2 in respect of claims arising out of his li 20.2.

under a contract of service or appr and in the course of such person's

cover 151:

- shall indemnifythe actor but onlyto the Employer underthe extent that the Cont

ndix laalfor any one occurrence

send to the Arc entaryevidencethatthe and are being maintained,

21.1 -3 lfthe Contrac ut or in maintaining insurance as provided in clause

ums therefor may be deducted by him from any econtractor underthisContractorsuch amount may

ndix thatthe insurance to which clause 21.2.1 refers may be Contractor shall, if so instructed by the Architect, take out a

e names of the Employer and the Contractor Ibbi for such amount as is stated in the Appendix in respect of any expense, liability, loss, claim gs which the Employer may incur or sustain by reason of injury or damage rty caused by collapse, subsidence, heave, vibration, weakening or removal r lowering ofground water arising out of or in thecourseof or by reason of

gout of the Works excepting injury or damage:

h the Contractor is liable under clause 20.2;

-3 which can reasonably beforeseen to be inevitable having regard tothe natureofthe work to be executed and the manner of its execution;

FOOtnOteS Izl It should benoted thatthecovergranted underpublic IaalTheContractormay,if hesowishes,insurefora liabilitypoliciestakenoutpunuanttoclause21~1~1 may sumgreaterthanthatstatedinthe Appendix. not beco-extensive with the indemnity given to the Employer inclauses20.1 and 20.2forexampleeach claim maybesubjecttotheexcessinthepolicyand covermay not beavailablein respect of lossor damage duetogradual pollution.

lbbl Apolicyof insurance taken out forthe purposesof clause 21*2should not havean expirydateearlierthan theend of theDefects Liability Period.

36 @The Joint Contracts Tribunal Limited 2003 P With 98 (9IO.7)

~ ~~~

21-2 continued

-1 .4 which it istheresponsibilityoftheEmployertoinsureunderclause22C~1 (if applicable);

-1 -5 to the Works and Site Materials brought on to the site of the Contract for the purpose of its execution except in so far as any part or parts thereof are the subject of a certificate of Practical Completion;

-1 -6 arising from any consequence ofwar, invasion, act of foreign enemy, hostilities (whether war be declared or not), civil war, rebellion or revolution, insurrection or militaryor usurped power;

. I a 7 directlyorindirectlycaused byorcontributedto Risks;

.I .8 directlyor indirectlycaused byorarisi buildingsorotherstructureorofwate the period of insurance; save that this exc pollution or contamination caused by a sud unexpected incident which takes place and place during the period of insuranc contamination which arisesout of one inci of this insurance to have occurred atthe time

-1 .9 which results in any costs or expen n-h4 s being in rred y e Employer or in any other sums being payable byth amagesfor breach of

or damages would have

21.2 -2 Any such insurance as is refe all be placed with insurers to be

21.2 -3 The amountsex eout and maintain the insurance

21.2 .4 If the Cont maintaining the Joint Names Policy as y himself insure against any risk in respect of

Excepted Risks ses20.1,20.2and 21~1~1,theContractorshall notbe

he effect of an Excepted Risk.

lnsuranceofthe works - alternative clauses

or clause 22C shall apply whichever clause is stated to apply in the

Footnote IcclClause~isapplicabletotheerection of new buildingswherethecontradoris requiredtotake outa Joint Names Policyfor All Risks lnsurencaforthe Works andclause228 isapplicable wherethe Employer has elected totekeout such Joint NamesPolicy. Clause22C is to be usedforalterationsof or extensions toexisting

structures underwhich the Employer is required totake outa Joint NamesPolicyfor All Riskslnsuranceforthe Worksand alsoa Joint Names Policytoinsure the existingstructuresand theircontentsowned by him or forwhich heis responsible against lossordamage thereto bythe Specified Perils.


Policies issued by insurers are not standaidised and therewill besomevariation in thewaythe insurancefor those risks isexpressed. See also Practice Note22 and

[eel In any policy for 'All Risks Insurance'taken out under clauses22A.22Bor22CZ cover should not be leduced bythe terms of any exclusion written in the policy beyond the termsof paragraph 2; thusan exclusion in terms "This Policy excludesall lossof or damageto the property insuredduetodefectivedesign, plan,

-0 Guide,Part A.

clausesandof thedefinitionof'Al1 Risks Insurance'. Coverwhich goes beyond the terms oftheexclusion in paragraph 2 may be available though not standard in all policiestaken outto meettheobligationinclauses22A. 22Bor22C.2: and leading insurerswho underwrite'All Risks'coverforthe Works haveconfirmed thatwhere such improved cover is being given itwill not be withdrewn asaconsequence of the publication of the termsof the definition in clause 22.2 of 'All Risks Insurance'.

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

All Risks Insurance: lddl insurance which provides cover against any physical loss or damage to work executed and Site Materials and against the reasonable cost of the removal and disposal of debris and of any shoring and propping of the Workswhich results from such physical loss or damage but excluding the cost necessaryto repair, replace or rectify

1 propew which is defective due to

.1 wear and tear,

-2 obsolescence,

.3 deterioration, rust or

ich was defective;

r, invasion, act of foreign her war be declared or

unicipal or local authority;

an Excepted Risk (as defined in clause 1.3).

Joint Names Poli

any act of any person acting on behalf of or in connection with any organisation with activities directed towards the overthrowing or influencing of any government dejureor de factobyforce orviolence.

insurance provided undera Joint Names Policy to which clauses22A, 228 and 22C refer for physical loss or damage to workexecuted and Site Materials and to an existing structure and/or itscontents due to fire or explosion caused by terrorism.


L Nominated and 22.3 -1 The Contractor where clause 22Aapplies, and the Employer where either clause 228 or Domestic Sub-

benefit of Joint Names Policies -

clause 22C applies, shall ensure that the Joint Names Policy referred to in clause 22A.1 orclause22A-3orthe Joint Names Policies referred to in clause 22B-1 or in clauses 22C.1 and 22C-2 shall

either provide for recognition of each sub-contractor nominated by the Architect as an insured under the relevant Joint Names Policy

1

Contractors -

Specified Perils

or include a waiver by the relevant insurers of any right of subrogation which they may have against any such Nominated Sub-Contractor

in respect of loss or damage by the Specified Perils to the Wor where clause 22Aor clause 228 or clause 22C.2 applies and, w in respect of loss or damage by the Specified Per include from the relevant date any relevant partt with thecontents thereof owned bythe Employe

of Conditions NSC/C) orthe date of deterrnin (whether or notthevalidityofthatdetermina

Employer under clause 22C.2.

22.3 e 2 Except in respect of the Joint Na se 22C.1 (orthe Joint Names Policy referred to in clau clause 22C.1) the provisionsof

It by the Employer under gnition orwaiver shall

New buildings - 22A-1 The Contractors Contractor to take cover no less tha e222 Iddllfflforthefull reinstatementvalueofthe Joint Names Policy for All Risks mesPolicy uptoand including the

or up to and including the date of Insurance

nder clause 27 or clause 28 or clause

tawa Joint Names Policy for All Risks Insurance for

over professional fees stated in the Appendix) and out and maintain a

ntested), whichever is the earlier.

us for VAT purposes is exempt or partially exempt the full ch thisclause refersshall beinclusiveofanyVATon thesupply of

which the Contractor ischargeable by

Single policy - Policy referred to in clause 22A-1 shall be taken out with insurers approved rchitect for deposit with the

rand also any relevant endorsement y be required tocomplywith the obligation to maintain that d the premium receipts therefor. lfthe Contractor defaults in Joint Names Policy as required by clauses 22A.1 and 22A.2

nt Names Policy against any risk in sum or sums equivalent to the

erefor may be deducted by him r under this Contract or such

mount may be recoverable bythe Employer from the Contractor as a debt.

Footnote Iffl In some cases it may not be possible for insurance to betakenoutagainstcertainoftheriskscovered by thedefinitionof'All Risks Insurance'.This matter should be arranged between the parties prior to !ntering intotheContractandeitharthedefinitionof All Riskslnsurance'given inclause 222amendedor

the risks actually covered should replace this definition; in the lanercasecIause22A.l.clause 22A.3orclause 22B.l.whichever isapplicable, and other relevant clauses in which the definition 'All Risks Insurance' is used should beamended to include thewords used to replace this definition.

P With 98 (9/031 @The Joint Contracts Tribunal Limited 2003 39

, Useof annual policy maintained by Contractor - alternative to use of clause22A.2

Lossor damage to Works - insurance claims - Contractor3 obligations - use of insurance monies

Terrorism cover - non-availability

22A-3 -1

22A.3 -2

22A.4 -1

22A-4 a 2

22A-4 -3

22A-4 -4

If the Contractor independently of his obligations underthis Contract maintains a policy of insurance which provides finteralia)All Risks Insurance for cover no lessthan that defined in clause22.2 forthe full reinstatement value of the Works (plus the percentage, if any, to cover professional fees stated in theAppendix1 then the maintenance bythe Contractor of such policy shall, if the policy is a Joint Names Policy in respect of the aforesaid Works, be a discharge of the Contractor's obligation to take out and maintain a Joint Names Policyunderclause22A.l. If and so long asthe Contractor is able to send to the Architect for inspection by the Employer as and when he is reasonably required to do so by the Employer documentary evidence that such a policy is being maintained then the Contractor shall be discharged from his obligation under clause 22A.2 to deposit the policy and the premium receipt with the Employer but on any occasion the Employer may (but not unreasonably orve sly) require to have sent to the Architect for inspection by the Employerthe poli to whic lause 22A-3.1 refers and the premium receipts therefor. The annual r &ed e bv the Contractor, ofthe insurance referred to in clause 22A.3J s ated i Appendix.

The provisions of clause 22A.2 shall apply in regard to any de maintaining insurance under clause 22A.3-1.

is occasioned by any one or more of the risks referred to in clause 22A-1 or clause 22A-2 or

The occurrence of such loss or damag payable to the Contractor under orb

in computing any amounts

d and Domestic Sub-Contractors who

tor by instalments under certificates of the Architect

entitled to any payment in respect of the restoration, ch loss or damage and (when required) the removal and n the monies received underthe aforesaid insurance.

in the Joint Names Policy notify the Contractor or the Employer that, with effect from a date stated by the insurers (the

will cease and will no longer be available, the inform the Employer orthe Employer shall immediately

but before the Effective Date,

the Effective Date clause 22A.5-3 shall apply in respect of physical loss or damage to work executed andlor Site Materials due to fire or explosion caused by terrorism;

U or

40 @The Joint Contracts Tribunal Limited 2003 P With 98 (9/V3)

Premium rate changes - terrorism cover

New buildings - Employer to take out and maintain a Joint Names Policy for All Risks Insurance

22A.5 continued

-2 -2 that on a date stated by the Employer in his notice (which date shall be afterthe date of the Insurers' Notification and on or before the Effective Date) the employment of the Contractor under this Contract shall be and is determined; and that upon such determination the provisions of this Contract which require any further payment or any release or any further release of Retention to the Contractor shall not apply and the provisions of clauses 28A*3,28A4and 28A.5 (except clause 28A.5-5) and, where relevant, clause 28A.7 shall thereupon apply.

22A-5 -3 Where clause 22A.5.2.1 applies then if work executed and/or Site Materials suffer

Employer shall not reduceany amount payable 22A.5.3 by reason of any act or neglect ofthe CO may have,orisalleged bythe Employerto have damage to which thisclause refers.

22A-5 -4 .1 lfthe rate on which the premium is basedfo

renewal of the cover, the Con difference in the premium pa would have been paid butfor

not to renew the

228 Erection of new rance of the Works by the Employer ICCI

22-2 Iddllfflforthefull reinstatementvalue ofthe

as and when reasonably required to do so by the Contractor, produce and receipts showing thatthe Joint Names Policy required under

out and is being maintained. If the Employer defaults in taking Names Policy required underclause 228.1 then the

and maintain a Joint Names Policy against any risk in

Failure of Employer to insure - rights of Contractor

adefault shall haveoccurredandasumorsumsequivalenttotheamount y him in respect of the premiums thereforshall be added to the Contract

r damage affecting work executed or any part thereof or any Site Materials is occasioned by any one or more of the risks covered by the Joint Names Policy referred to in clause 228-1 or clause 228.2 then, upon discovering the said loss or damage, the Contractor shall forthwith give notice in writing both to the Architect and to the Employer ofthe extent, nature and location thereof. Employer

228.3 .2 The occurrence of such loss or damage shall be disregarded in computing any amounts payable to the Contractor under or by virtue of this Contract.

P With 98 (9/031 @The Joint Contracts Tribunal Limited 2003 41

Terrorism cover non-availability

Employer's options

228.3 .3 After any inspection required by the insurers in respect of a claim under the Joint Names Policy referred to in clause 228.1 or clause 228.2 has been completed the Contractor with due diligence shall restore such workdamaged, replace or repair any such Site Materials which have been lost or damaged, remove and dispose of any debris and proceed with the carrying out and completion of the Works.

228.3 -4 The Contractor, for himself and for all Nominated and Domestic Sub-Contractors who are, pursuant to clause 22.3, recognised as an insured under the Joint Names Policy referred to in clause 22B.1 or clause 228.2, shall authorise the insurers to pay all monies from such insurance in respect ofthe loss or damage referred to in clause 228.3-1 to the Employer.

228.3 -5 The restoration, replacement or repair of such loss or dama removal and disposal of debrisshall be treated as ifthey we an instruction ofthe Architect under clause 13.2.

lfthe insurers named in the Joint Names Policy n (the 'Insurers' Notification') that, with effect from 'Effective Date'), terrorism cover will cease and WI shall immediatelyso inform the Contractor orthe inform the Employer.

shall give notice to the Contractor in writing:

226.4 -1

226.4 -2 The Employer, after receipt ofthe Insurers' Notifi

either

.2 a1 that on and from the Effective pply in respect of physical to fire or explosion caused loss or damage to work exec

by terrorism;

or

e2 .2 that on a da (which date shall be after the date ffective Date) the employment of

hall not apply and the provisions of 28A-5.5) and, where relevant, clause

n if work executed and/or Site Materials suffer or explosion caused byterrorism the Contractor shall rk damaged, replace or repair any such Site Materials

disposal of debris shall be treated as if n ofthe Architect under clause 13-2.The

ctor pursuant tothis clause any sub-contractorwhich to the physical loss or

xisting structures - insurance of Works in or extensions to existing

II take out and maintain a Joint Names Policy in respect of theexisting

e or more ofthe Specified Perils [gal up to and including the date of issue of the certificate Practical Completion or up to and including the date of determination of the employment

himself and forall Nominated Sub-Contractors who are, pursuantto clause22.3.1, recognised as an insured under the Joint Names Policy referred to in clause 22C.1 or clause

42

See next page for footnote [ggl.


22C-1 continued

22C.3,shall authorise the insurers to pay all moniesfrom such insurance in respect of loss or damage to the Employer. Ihhl

Where the Employer's status for VAT purposes is exempt or partially exempt the full cost of reinstatement, repair or replacement of loss or damage to which this clause refers shall be inclusive of any VATchargeable on thesupply of such reinstatement, repair or replacement.

Terrorismcover - existing structures andcontents - non-availability - Employefs options

22C-1 A.1 If the insurers named in the clause 22C.1 Policy notify the Employer or the Contractor (the 'Insurers' Notification') that, with effect from a date stated by the insurers (the 'Effective Date'), terrorism cover undertheclause 22C.1 P longer be available, the Employer shall immediately so in Contractor shall immediately so inform the Employer. The Insurers' Notification but before the Effective Date, shall gi writing:

either

A-1 -1 that on and from the Effective Date clause occursto the structures andortheconten terrorism;

or

hall be afterthe date

the Contractor under this Cont

22C-1 A.2 Whereclause22C-1A-1.1 applie e to require the Works to be

lossor damageduet ofire C-1A-2 shall not be

ofthe Contractor underthis Contract is rovisions ofthiscontract which require

8A.3,28A.4 and 28A.5 (except clause 28A.5-5) shall thereupon apply.

Works in or extensions to existing structures -All Risks Insurance - Employerto take out and maintain Joint Names Policy

226.2 TheEmployersh cover no less tha

ain a Joint Names Policy for All Risks lnsurancefor e 22.2IddlIgglforthe full reinstatement valueofthe ver professional fees stated in the Appendix) and such Joint Names Policy up to and including the I Completion or up to and including the date of

yment of the Contractor under clause 22C.4-3 or clause 27 or hether or not the validity of that determination is contested),

--tatus for VAT purposes isexempt or partiallyexemptthefull thisclause refersshall beinclusiveofany VATonthesupplyof

to in clause22C.4-4-1 for which the Contractor is chargeable

so by the Contractor, produce Names Policy required under

and is being maintained. lfthe Employer Names Policy required under clause 22C.1

a Joint Names Policy against any risk in for that purpose shall have such right

lggl In some cases it may not be possible for insurance to betakenoutagainstcertainoftheSpecified Perilsor the riskscovered bythedefinition of'All Risks Insurance'.This matter should bearranged between the parties priortoentering intothecontract and eitherthe definitions of Specified Perilsandlor All Risks Insurance giveninclauses 13and22.2amendedortherisks actuallycoveredshould replace thedefinitions;in the lattercaseclause22C.l andorclause22G2and other

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

Ihhl Some Employers e.g. tenants may not be able to fulfil the obligations inclause22C.l. If soclause22C.l should be amended accordingly.

Footnotes


22C.3 continued

ofentryand inspection as may be required to makeasunreyand inventory oftheexisting structures and the relevant contents. If the Employer defaults in taking out or in maintaining the Joint Names Policy required under clause 22C-2 the Contractor may take out and maintain a Joint Names Policy againstany risk in respect ofwhich the default shall have occurred. Asum or sums equivalentto the premiums paid or payable by the Contractor pursuant to clause 22C.3 shall be added to the Contract Sum.

Lossordamageto Works - insurance claims - Contractor's obligations - payment by Employer

22C-4 If any loss or damage affecting workexecutedor any part thereof or any Site Materials is occasioned by any one or more of the risks covered by the Joint Names Policy referred to in

nature and location thereof and

22C.4 -1 the occurrence of such loss or damage shall be disregarde payabletotheContractor under or by virtue ofthiscontra

22C-4 -2 theContractor,for himself and for all Nominated are, pursuant to clause 22.3, recognised as an ins referred to in clause 226.2 or clause22C.3, shall a from such insurance in respect of the loss or dam Employer;

whether such determi

notice of determination, orwhere

e provisions of clauses28A.4 and 20A.5

er clause 226.4.3.1, or where the relevant have been invoked and the notice of

acement or repair of such loss or damage and (when required) posal of debris shall be treated as if they were a Variation

ed in the Joint Names Policy notify the Employer orthe Contractor fication') that, with effect from a date stated by the insurers (the

ction ofthe Architectunder clause 13.2.

Terrorism cover - non-availa bility

E 0

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

or


226.5 continued

-2 -2 that on a date stated by the Employer in his notice (which date shall be after the date of the Insurers' Notification and on or before the Effective Date) the employment of the Contractor shall be and is determined; and that upon such determination the provisions of this Contract which require any further payment or any release or any further release of Retention to the Contractor shall not apply and the provisions of clauses 28A-3,28Am4 and 28A.5 (except clause 28A-5-51 shall thereupon apply.

22C-5 -3 Where clause 22C.5.2.1 applies then if work executed and/or Site Materials suffer physical loss or damage due to fire or explosion caused byterrorism the Contractor shall

the carrying out of the Works; and the restoration, replace damage and (when required) the removal and disposal of

220 Insurance for Employer's loss of liquidated dam

Architect shall either inform the is required or instructthe shall be foran insurance

calculated by refere executed, Site Mate

e to the Works, work for use in connection

t shall obtain from the Employer to obtain such quotation.The

ructthe Contractor whether or notthe quotation and such instruction shall not be

entsthereof and the premium receipts therefor.

insurance shall be calculated atthe rate referred to in clause e produced bythe application of clause 18.1.4)forthe period of any given bythe Architect as referred to in clause22D.l or forthe he Appendix, whichever isthe less.

Footnote ~~

IiilTheadoptionofanagreedvalueistoavoidany satisfied that the sum referred to in clause22D.2 is not dispute overtheamount ofthe payment due underthe more than agenuinepre-estimateof thedamages insurance once the policy is issued. Insurers on which the Employerconsiders, atthe time heenters into receiving a proposalfortheinsurancetowhichclause theContract,hewillsufferasa resultofanydelay. 22Dreferswillnormallyreservetherighttobe


22FC Joint Fire Code - compliance

Application of clause

Compliance with 22FC .2 .1 The Employer shall comply with the Joint Fire Code and ensure such compliance by Joint Fire Code his sew ants or agents and by any person employed, engaged or authorised by him

upon or in connection with the Works or any part thereof other than the Contractor and the persons for whom the Contractor is responsible pursuant toclause

22FC .1 Clause 22FC applies where it is stated in the Appendix that the Joint Fire Code applies.

22FC.2.2.

e 2 -2 The Contractor shall comply with the Joint Fire Code and ensure such compliance

other person who may properly be on the site upon or i or any part thereof other than the Employer or any pe authorised by him or by any local authorityorstatuto

Breach of Joint 22FC -3 -1 If a breach ofthe Joint Fire Code occu FireCode- Policy in respect of the Works specify Remedial Measures

which such Remedial Measuresa Completion Date'), the Party recei and the Employer shall copy such

the Works the Contractor ut by the Remedial

Variation to the Works as

ergency, compliance with the ires the Contractor to supply nstructions under this clause, the

Joint FireCode - amendments/ ised is, under the Joint Names Policy, applicable to the Works, the cost, if

Sum or by the Contractor.

shall thereupon begin the Works and regularly and diligently proceed with the same and shall complete the same on or before the Completion Date. progress to

Completion Date

46 @The Joint Contracts Tribunal Limited 2003

~~~~

P With 98 (9D3

23.1 .2 Where clause 23.1-2 is stated in the Appendix to apply the Employer may defer the giving of possession for a period not exceeding six weeks or such lesser period stated in the Appendix calculated from the Date of Possession.

Architect's instructions - postponement

Possession by Contractor - use or occupation by Employer

23-2 The Architect may issue instructions in regard to the postponement of any workto be executed under the provisions of this Contract.

a1 23.3 Forthe purposes of the Works insurances the Contractor shall retain possession of the site and the Works up to and including the date of issue of the certificate of Practical Completion, and, subjectto clause 18, the Employer shall not be entitled to take possession of any part or parts of the Works until that date.

23.3 -2 Notwithstanding the provisions of clause 23.3.1 the E writing of the Contractor, use or occupy the site or the the purposes of storage of his goods or otherwise bef certificate of Practical Completion bythe Architect. Be consent to such use or occupa insurers under clause 22A or c applicable and obtain confirm insurance. Subjecttosuch CO

unreasonably delayed or withheld.

referred to in clause 23.3.2 have made it a conditlo additional premium is required the Contr the additional premium. If the Empl clause 23-3-2 the additional premiu the Contractor shall provide the Em receipt therefor.

23.3 .3 Whereclause 22A.1 orclause22A.3appliesand the confirmation

yeroftheamount of occupation under Contract Sum and

eadditional premium

Certificate of Architect

Payment or allowance of liquidated damages

24 Damages for non-

24.1 If the Contractor fa issue a certificate t

such further certific

tion Date then the Architect shall etion Date being fixed afterthe

certificate and the Architect shall issue

24-2 -1 Provided:

ificate underclause24.1;and

e Contractor in writing before the date of the Final re payment of, or may withhold or deduct, liquidated

, not later than 5 days before the final date for payment of the

iting the Contractor to pay to the Employer liquidated and ascertained he rate stated in the Appendix (or at such lesser rate as may be riting bythe Employer) forthe period between the Completion Date f Practical Completion and the Employer may recover the same as a

otice pursuanttoclause30~1~1~4orclause 30.8-3to the Contractorthat he will deduct from monies due to the Contractor liquidated and ascertained damages at the rate stated in theAppendix(orat such lesser rate as may be specified in the

period between the Completion Date and the date of Practical

24.2 -2 If, under clause 253.3, the Architect fixes a later Completion Date or a later Completion Date is stated in a confirmed acceptance of a 13AQuotation, the Employer shall pay or repay to the Contractor any amounts recovered, allowed or paid under clause 24.2-1 for the period up to such later Completion Date.


Footnote

48

24-2 a 3 Notwithstanding the issue of any further certificate of the Architect under clause 24-1 any requirement of the Employer which has been previously stated in writing in accordance with clause 24.2.1 shall remain effective unless withdrawn by the Employer.

25 Extension of time [ijl

Interpretation of delay

Notice by 25.2 -1 .1 If and whenever it becomes reasonably apparent t Contractor of being or is likely to be delayed the Contractor shall

the Architect of the material circumstances includi delay to progress

delay and identify in such notice any event which in hi

25.1 In clause 25 any reference to delay, notice or extension of time includes further delay, further notice or further extension of time.

.1 -2 Where the material circumstancesofwhic clause 25.2-1.1 include referenceto a Nom shall forthwith send a copy of such written no concerned.

25.2 .2 In respect of each and every Relevant Event ident en in accordance with clause 25.2.1.1 the Contractor shall, if pra writing as soon as possible after such noti nu

a2 -1 give particulars of the expected eff

-2 .2 estimate the extent, if an mpletion of the Works beyond the Complet delay resulting from

er or not concurrently with

minated Sub-Contractor to whom

25.2 -3 The Contractor oticestotheArchitect,andsend acopyto tice has been given

ryorasthe Architect may lars and estimate referred to in hange insuch particulars or

Fixing Completion 25.3 -1 If, in pon receipt of any notice, particulars and estimate Date

cause of the delay is a

the Works is likelyto be delayed thereby beyond the Completion

I in writing to the Contractor give an extension of time by fixing such ompletion Date as he then estimatesto be fair and reasonable.The

, in fixing such new Completion Date,state:

of the Relevant Events he has taken into account and

nt, if any, to which he has had regard to any instructions issued under clause

rformance Specified Workwhich results in the omission of any such work,

and shall, if reasonably practicable having regard to the sufficiency of the aforesaid notice, particulars and estimate,fix such new Completion Date not laterthan 12 weeks from receipt of the notice and of reasonably sufficient particulars and estimate, or, where the period between receipt thereof and the Completion Date is less than 12 weeks, not laterthan the Completion Date.

Ijjl See clauses 38-4.7.395.7 and 40.7 (restriction of fluctuations or price adjustment during period where Contractor is in default over completion).


25-3 .1 continued

If, intheopinion ofthe Architect, upon receipt ofany such notice, particularsand estimate, it is not fair and reasonable to fix a later date as a new Completion Date, the Architect shall if reasonably practicable having regard to the sufficiency ofthe aforesaid notice, particulars and estimate so notify the Contractor in writing not laterthan 12 weeksfrom receipt ofthe notice, particulars and estimate, or, where the period between receiptthereof and the Completion Date is lessthan 12 weeks, not laterthan the Completion Date.

25.3 -2 After the first exercise by the Architect of his duty under clause 25-34 or after any revision to the Completion Date stated by the Architect i 13A Quotation in respect of a Variation the Architect ma Date earlierthan that previouslyfixed under clause 250

issued afterthe last occasion on which the Architectfixed

- underclause 13.2which requireorsanction a or obligation; and/or

- underclause 13-3in regard totheexpenditu for defined work orfor Performance Specified Work which re

Provided that no decision under cla the time required by the Contractor Variation forwhich a 13AQuotation

ariation orwork forwhich en accepted pursuantto

clause 13.4.1.2 paragraphA7.

s after the date of Practical

uslyfixed if in hisopinion thefixing of

an that previouslyfixed under clause25 or stated in a Quotation if in his opinion the fixing of such earlier

13.2 which require or sanction as a Variation the omission of any

in regard to the expenditure of a provisional sum for defined mance Specified Work which result in the omission of any

m tothe Contractorthe Completion Date previouslyfixed or stated in a med acceptance of a 13A Quotation.

that no decision under clause 25-3.3-1 or clause 25.3-3-2 shall alterthe length of thetime required bythe Contractor forthe completion of the Works in on forwhich a 13AQuotation has been given and which has been ed acceptance of a 13A Quotation. w 2 y Providedalwaysthat:

1

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

-4 .2 theContractorshalldoallthat may reasonably be requiredtothesatisfactionofthe Architect to proceed with the Works.

P With 98 19/03) @The Joint Contracts Tribunal Limited 2003

25.3 .5 The Architect shall notify in writing to every Nominated Sub-Contractor each decision of the Architect under clause 25-3fixing a Completion Date and each revised Completion Date stated in theconfirmed acceptance of a 13A Quotation together with, where relevant, any revised period or periods forthe completion of the work of each Nominated Sub-Contractor stated in such confirmed acceptance.

-6 Nodecision ofthe Architect under clause 25.3-2 orclause 25.3.3.2shallfixa Completion Date earlierthan the Date for Completion stated in the Appendix.

25.3

Relevant Events 25.4

25.4 a 1 force majeure;

25.4 -2 exceptionally adverse weather conditions;

25.4

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

-3 loss or damage occasioned by any one or more of the Spe

25-4 -5 compliance with the Architect‘s instructions

Quotation), 13.3 (exceptcompl expenditure of a provisional su Performance Specified Work),

-5 .2 in regardtothe

25.4 -6 -1 whereanln s been provided,failure ofthe Architect

-6 -2 failureoft

25.4 .7 delayonthe le steps to avoid or reduce;

25-4 -8 -1 g part ofthis Contract by the Employer himself or se engaged bythe Employer as referred to in

yer of materials and goods which the Employer has agreed orthefailuresoto supply;

rgy as are essential to the propercarrying out of the Works;

ntractor’s inabilityfor reasons beyond his control and which hecould not onably have foreseen at the Base Date to secure such labour as is essential to ropercarrying out of the Works; or

tor’s inability for reasons beyond hiscontrol and which he could not have foreseen atthe Base Date to secure such goods or materials as are

essential to the proper carrying out of the Works;

statutory obligations in relation to the Works, orthe failure to carry out such work;


25-4 -12 failure of the Employer to give in due time ingress to or egress from the site of the Works or any part thereof through or over any land, buildings, way or passage adjoining or connected with the site and in the possession and control of the Employer, in accordance with the Contract Bills and/orthe Contract Drawings, after receipt by the Architect of such notice, if any, as the Contractor is required to give, or failure of the Employerto givesuch ingress or egressas otherwiseagreed betweenthe Architect and the Contractor;

25.4 .13 where clause 23.1.2 is stated in the Appendix to apply, the deferment by the Employer of giving possession of the site under clause 23-1-2;

25.4

25-4

25-4

25.4

25.4

25.4

26

Matters materially 26.1 affecting regular progress of the Works - direct lossand/or expense

-14 by reason oftheexecution ofworkforwhich an ApproximateQ Contract Bills which is not a reasonably accurate forecast of the required;

-15 delay which the Contractor has taken all practicable steps upon a change in the Statutory Requirements after the Bas some alteration or modification to any Performance Speci

-16 the use orthreat of terrorism and/or the activity of m f i v e a l i n g t relevant a hori with

-17 compliance or non-compliance bythe Employer ith

such use or threat;

-18 delay arising from a suspens underthe Contractto the Em

-19 save as provided for in claus whether by act or omission, responsible exceptto the e whether by act or omissio

Loss and expense Works

regular progress of the

e Architect stating that he has incurred or is

ould not be reimbursed by a payment under rment of giving possession of the site under e Appendix to be applicable or because the

ferred to in clause 26.2; and if and as soon as the and/or expense has been incurred or is likelyto

possession or thatthe regular progress of ely to be so materially affected as set out in

the Contractor may give his quantification) in the execution

artthereof has been or is likelyto be materially

from time to time thereafter shall e QuantitySurveyortoascertain,the amountofsuch lossand/or s being incurred by the Contractor; providedalways that:

on shall be made as soon as it has become, or should ,apparentto himthatthe regular progressofthe Worksorof or was likely to be affected as aforesaid; and

ctor shall in support of his application submit to the Architect upon request tion as should reasonably enable the Architect to form an opinion as

torshall submittothe Architectorto the Quantity Surveyor upon request such loss and/or expense as are reasonably necessary for such

he following are the matters referred to in clause 26.1:

-1 .I where an Information Release Schedule has been provided,failure of the Architect to complywith clause 5.4-1;

.1 -2 failure of the Architect to comply with clause 5-4.2;


26.2 -2 the opening upfor inspection ofanyworkcovered uporthetesting ofany ofthework, materials or goods in accordance with clause8.3 (including making good in consequence of such opening up ortesting), unless the inspection ortest showed that the work, materials or goods were not in accordance with this Contract;

26.2 -3 any discrepancy in or divergence between the Contract Drawings and/orthe Contract Bills and/orthe Numbered Documents;

26.2 .4 .1 the execution ofwork not forming part ofthis Contract bythe Employer himself or by persons employed or otherwise engaged by the Employer as referred to in clause 29 or the failure to execute such work;

.4 -2 the supply by the Employer of materials and goodswhich to provide forthe Works or the failure so to supply;

26.2 -6 failureofthe Employertogiveinduetimeingre or any part thereof through or over any land, bu

notice, if any, as thecontractor is requi ingress or egress as otherwise agreed

26-2 -7 Architect’s instructions issued

underclause 13.2orcla which the Architect has Variation thereto) or

(except for a Variation for a 13A Quotation or for a

provisional sums (other than struction forthe expenditure of a

26.2 .8 the execution of wo Quantity is included in the Contract Bills

26.2 -9 compliance ployerwithclause6A.l;

26.2 .10 suspension e performance of his obligations underthe Contract e 30.1.4 provided the suspension was not frivolous or

26-2 *1 26.2.1 to 26-2.10any impediment, prevention or default, ssion, by the Employer or any person forwhom the Employer is the extent that it was caused or contributed to by any default, ssion, of the Contractor or his servants, agents or subcontractors.

s necessary for ascertainment under clause 26.1 of loss itect shall state in writing to the Contractor what extension of time, if er clause 25 in respect of the Relevant Event or Events referred to in thatclause referstoclauses 2.3,13.2,13.3and 23-21 and in clauses

Relavanceof certain extensions of Completion Date

52

e C tractor upon receipt of a written application properly made bya Nominated ontractor under clause 4.38-1 of Conditions NSC/C shall pass tothe Architect a

opy o Y be inc ed due to any deferment of the giving of possession where clause 23.1-2 is

Su

10 and/ expense to which the said clause 4-38.1 refers has been incurred or is likely to

stated in the Appendixto apply orthatthe regular progress of the subcontract works or of any part thereof has been or is likely to be materially affected as referred to in clause 4.38-1 of Conditions NSC/C and as set out in the application of the Nominated Sub- Contractorthen the Architect shall himself ascertain, or shall instructthe Quantity Surveyorto ascertain,the amount of loss and/or expense to which the said clause 4.38-1 refers.

at written application. If and as soon as the Architect is of the opinion that the


Amounts ascertained - added to Contract Sum

Reservation of rightsand remedies of Contractor

Notices under clause 27

Default by Contractor

26.4 -2 If and to the extent that it is necessaryforthe ascertainment of such loss and/or expense the Architect shall state in writing to the Contractor with a copy to the Nominated Sub-Contractor concerned what was the length of the revision of the period or periods for completion of the sub-contract works or of any part thereof to which he gave consent in respect of the Relevant Event or Events set out in clause2.6.5.1 (so far as that clause refers to clauses 2.3,13.2,13.3and 23.2 of the Main Contract Conditions), 2.6-5.2,2,6.6,2.6.8,2-6-12 and 2-6-15 of Conditions NSCIC.

26-5 Any amount from time to time ascertained underclause 26shall be added to the Contract Sum.

26.6 The provisions of clause 26are without prejudice to any other Contractor may possess.

27 Determination by Employer

27-1 Any notice or further notice to which clauses writing and given by actual delivery or by special delivery or recorded contrary, be deemed to have been Saturday and Sunday and Public Holidays).

27.2 .1 If, before the date of Practical Completi - w e ,the Con a default in anyone or more of the following respects:

-1 .I without reasonable cause h pends the carrying out of the Works; or

-1 .3 he refuses notice or instructionfromthe ds not in accordance materially affected;

ofclause 19.1-1 orclause 19-2.2;or

ions to comply with the requirements of the CDM

ractor a notice specifying the default or defaults (the

esa specified default for 14daysfrom receiptofthe notice theEmployer may on, orwithin lOdaysfrom,theexpiryof that

the Contractor determine the employment of the ct. Such determination shall take effect on the date of

ntractorends the specified default or defaults, or

mployer does not give thefurther notice referred to in clause 27.2-2

ractor repeats a specified default (whether previously repeated or not) then, er such repetition, the Employer may by notice to ymentoftheContractor underthiscontract. Such

he date of receipt of such notice.

use 27-2-2 or clause 27.2-3 shall not be given unreasonably or vexatiously.

P With 98 i9/03) @The Joint Contracts Tribunal Limited 2003 53

Insolvency of 27.3 -1 If the Contractor Contractor

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

being a company,

Corruption

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

passes a resolution for voluntary winding-up (except

administrator or an administrative receiver

amalgamation or reconstruction), or

under the Insolvency Act 1986oranyamendme

has a provisional liquidator appointed, or

has a winding-up order made, or

then:

proposal for a voluntary arrange arrangement to be approved in a Insolvency Act 1986as thecase ma

ed or a winding-up winding-up (except ment of the Contractor for the purposes of amalga

27-3 -4 where clause r may at any time, unless an agreement y notice to the Contractor determine

is Contract and such determination shall

ine the employment of the Contractor, under this or I1 have offered or given or agreed to give to any

kind as an inducement or reward for doing or

cts 1889to 1916.

the Employer, subject to clause 27-53.

with clause2.1.

Insolvency of Contractor - option to Employer

Footnote

54

IkklSee JCTPracticeNote24after certaininsolvency events an Insolvency Practitioner acts for the Contractor.


27.5 .2 Clause 27.5-1 shall apply until

either

-2 -1 the Employer makes an agreement (a'27 1 agreement') with the Contractor on the continuation or novation or conditional novation of thiscontract, in which case thisContractshall besubjecttothetermssetoutin the27-5.2.1 agreement

or

-2 -2 the Employer determines the employment ofthe Contractor underthis Contract in accordance with clause 27-3.4, in which case the provisions 27.7 shall apply.

27.5 -3 Notwithstanding clause 27.5-1, in the period before either orthe Employer underclause27.3.4determ Employer and the Contractor may make an i out. Subject to clause 27.5-4 any right of set-

27.5 a 4 From the date when, under clause 27-3.4, the Em

27.5.2.1 or arrangement reasonable measuresto adequately protected an the Works as the case may delay the taking of the aforesaid m cost oftaking such measuresf under this Contract (including 27-5-2-1, or under an interi

ydeductthe reasonable me due to the Contractor

Consequences of 27-6 In the event ofthe de Contractor under clause 27.22, determination 27*2*3,27*3*3,27.3.4 t has not been reinstated then: under clauses 27.2 to 27.4

27-6 -1 carry out and complete the Works ause 17 and heorthey may enter

ofto chuseiso ainedbytheEmployer; Own%-

olvency event listed in clause 27.3.1 (other than the Contractor aking a proposal for a voluntary arrangement for a

scheme of arrangement to be approved in accordance 1985orthe insolvencyAct 1986asthecase may beorany

enactment) has occurred the Contractor shall, if so required by ythe Architect on behalf of the Employer within 14 days of the

ssign to the Employer without payment the benefit of any pply of materials or goods and/orforthe execution of any

orthe purposes ofthiscontracttothe extentthat the same is assignable;

twhere the Contractor has a trustee in bankruptcy appointed or being a as a provisional liquidator appointed or has a petition alleging

led against itwhich is subsisting or passes a resolution for voluntary otherthan forthe purposes of amalgamation or reconstruction) which sa creditors'voluntary liquidation, the Employer may pay any supplier

any materials or goods delivered or works executedforthe purposes of this Contract before or after the date of determination in so far as the price thereof has not already been paid by the Contractor. Payments made under clause 27-6-24 may be deducted from any sum due or to become due to the Contractor or may be recoverable from the Contractor by the Employer as a debt;

27-6 .3 the Contractor shall, when required in writing bythe Architect so to do (but not before), remove from the Works any temporary buildings, plant, tools, equipment, goods and materials belonging to him and the Contractor shall have removed bytheir owner any temporary buildings, plant, tools, equipment, goods and materials not owned by him.


27.6 -3 continued

27.6 4

-4

27.6 -6

Employerdecides 27-7 -1 not to complete the Works

lfwithin a reasonable time after such requirement has been made the Contractor has not complied therewith in respect of temporary buildings, plant, tools, equipment, goods and materials belonging to him, then the Employer may (butwithout being responsible for any loss or damage) remove and sell any such propew of the Contractor, holding the proceeds less all costs incurred to the credit of the Contractor.

-1 Subject to clauses 27-5-3 and 27.6.4.2 the provisions of this Contract which require any further payment or any release or further release of Retention to the Contractor shall not apply; provided that clause 27.6.4.1 shall not be construed so as to prevent the enforcement by the Contractor of any respect of amounts properly due to be paid by the which the Employer has unreasonably not paid a

Contractor or, where clause 27.3.4 does not apply, w more before thedat

e2 Uponthecompletion clause27.6.1 (butsub 17-2 and/or clause 17. requiredefectsofthe reasonable time thereafter an a 27.6.5 shall be set out either in a certificate issued by the Archite

red to in clause

-3 the total ari&Q&~\k,eyayableforthe Works in accordance with this Contract.

Ges 27-6-54 and 27-6-5.2 exceedsor is less 5.3the difference shall be a debt payable by mployerto the Contractor as the case may be.

ination of the employment of the Contractor mpleted, he shall so notify the Contractor in such determination. Within a reasonable time

ication the Employer shall send to the Contractor a

othe Employerasa resultofthedetermination.

od referred to in clause 27-74 the Employer has not

pursuantto clause 27.7.1 the Contractor may require by notice in writing to the Employer that he states whether clauses 27.6.1 to 27.6.6 are to apply and, if not to apply, require that a statement of account pursuant to clause 27-7.1 be prepared by the Employer for submission to the Contractor.

Other right send remedies

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


28 Determination by Contractor

Notices under clause 28

28.1 Any notice or further notice to which clauses 28-2-1,28-2.2,28.2-3,28.2.4 and 28.3 refer shall be in writing and given by actual delivery or by special delivery or recorded delivery. If sent by special delivery or recorded delivery the notice or further notice shall, subject to proofto thecontrary, be deemed to have been received 48 hours after the date of posting (excluding Saturday and Sunday and Public Holidays).

Default by Employer -

28.2 -1 lfthe Employer shall make default in any one or more of the following respects:

suspension of uncompleted works

a1 -1 he does not pay by the final date for payment the amount properly due to the Contractor in respect of anycertificateand/or any VATon th the VAT Agreement: or

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

\\ ~1 -3 hefailstocomplywith the provisionsofclause 19.1.l;or n

-1 -4 he fails pursuantto the Conditions tocomply Regulations,

28.2 -2 If, before the date of Practical Compl the whole of the uncompleted Works length stated in the Appendix by re

nuous period ofthe

-2 -1 -1 wherean Information

.1 .2 failure

-2 a2 Architect'si .3,13.2 or 23.2 unless caused by

Nominated Su b-Contractor, the ged by the Employer; or

not forming part of this Contract by the Employer ed or otherwise engaged bythe Employer as referred execute such workordelay in the supply bythe dswhich the Employer has agreed to supply for the

ith the relevant Contract Documents, after receipt by , ifany,astheContractoris requiredtogive,orfailureof

may give to the Employer a notice specifying the event or events ('the ension event or events').

loyer continues a specified default, or

for 14daysfrom receipt of the notice under clause 28-2.1 or clause 28.2.2 then the Contractor may on, orwithin lOdaysfrom,theexpiryofthat 14days byafurthernotice to the Employer determine the employment of the Contractor under this Contract. Such determination shall take effect on the date of receipt of such further notice.

P With 98 (9103) @The Joint Contracts Tribunal Limited 2003 57 I

28.2 .4 If

- -

the Employer ends the specified default or defaults, or

thespecified suspension event or eventscease, or

- the Contractor does not give the further notice referred to in clause 28.2.3

and

- -

the Employer repeats (whether previously repeated or not) a specified default, or

a specified suspension event is repeated for whatever p repeated or not), whereby the regular progress of the W materially affected

then, upon or within a reasonable time after such notice to the Employer determine the employme Contract. Such determination shall take effect on

28.2 -5 A notice of determination under clause 28.2-3 or unreasonably or vexatiously.

lnsolvencyof 28-3 .1 lfthe Employer[iii Employer

makes a composition or arrange omes bankrupt, or,

being a company,

makes a proposal for a of arrangement to be a Insolvency Act 1986 as

position of debts or scheme ompanies Act 1985 orthe

ding-up (except for the purposes of

6 or any amendment or re-enactment thereof has an rative receiver appointed

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

or any amendment or re-enactmentthereof as the case may be;

ctor may by notice to the Employer determine the employment of the underthis Contract. Such determination shall take effect on the date of uch notice. Provided that after the occurrence of any ofthe events set out in

3.1 and before the taking effect of any notice of determination of his ent issued by the Contractor pursuant to clause 28-3-3 the obligation of the

Con ctor to carry out and complete the Works in compliance with clause 2.1 shall be /Y.,!.,\h- the e v s t h e determination of the employment of the Contractor under clause 28.2.3,

8-2.4 or 28-3-3 and so long as that employment has not been reinstated the provisions of

theaccrued rightsorremediesofeitherpam/ortoanyliabilityoftheclassesmentioned in clause 20 which may accrue either before the Contractor or any sub-contractors, their servants or agents or others employed on or engaged upon or in connection with the Works

28.4.1,28-4-2 and 28.4.3 shall apply; such application shall be without prejudice to

Footnote IlllSeeJCTPracticeNote24:aftercertain insolvency events en Insolvency Practitioner acts for the Employer.

58 @The Joint Contrects Tribunal Limited 2003 P With 98 (9/03)

28.4 continued

. 1,

or any partthereof other than the Employer or any person employed or engaged by the Employer shall have removed his or their temporary buildings, plant, tools, equipment, goods or materials (including Site Materials) or by reason of his or their so removing the same. Subject to clauses 28.4-2 and 28-4.3 the provisions of this Contractwhich require any payment or release or further release of Retention to the Contractor shall not apply.

28-4 -1 The Contractor shall, with all reasonable dispatch and in such manner and with such precautions as will prevent injury, death or damage of the classes in respect of which before the date of determination he was liableto indemnifythe Employer under clause 20, remove from the site all his temporary buildings, plant, materials (including Site Materials) and shall ensure that h same, but subject always to the provisions of clause 28.4.3

28.4 -2 Within 28 days ofthe determination of the employm

of the Contractor’s employment.

amounts in respect ofall Nominated S

Conditions as if the employ togetherwith any amounts in such total value; and

or expense under clauses 26 and of determination); and

-3 -3 the reason clause 28-4-1; and

-3 -4 anydirectlo the Contractor by the determination; and

.3 .5 theco ing Site Materials) properly ordered for the have paid or for which the Contractor is legally

ent in full by the Employer such materials or goods

ntractorthe amount properly due in respect of this ubmission bythe Contractortothe Employer butwithout

Other rightsand remedies actor may possess.

A n & Determ ati by Employer or Contractor

by reason of one or more of the following events:

e 2 loss or damage to the Works occasioned by anyone or more ofthe Specified Perils; or

.1 .3 civi1commotion;or

.I e 4 Architect‘s instructions issued underclause 2.3.13.2 or 23-2which have been issued as a result ofthe negligence or default of any local authority or statutory undertaker executing work solely in pursuance of its statutory obligations; or

wd 59 P With 98 19/03) @The Joint Contracts Tribunal Limited 2003

28A.1 -1 -5 hostilities involving the United Kingdom (whether war be declared or not); or

-1 -6 terrorist activity

then the Employer or the Contractor may upon theexpiryof the aforesaid relevant period of suspension give notice in writing to the other by actual delivery or by special delivery or recorded delivery that unless the suspension is terminated within 7 days after the date of receipt of that notice the employment of the Contractor underthis Contract will determine7 days after the date of receipt of the aforesaid notice; and the employment of the Contractor shall sodetermine7 days after receipt of such notice. If sent by special delivery or recorded delivery the notice shall, subject to proof to the contrary, be deemed to have been received 48 hours after thed (excluding Saturday and Sunday and Public Holidays).

agents otherthan the Employer or any person or by any local authority or statutory undertak its statutory obligations.

28A-1 a3 A notice of determination under clause 2 vexatiously.

COnSeqUenCES Of 28A-2 Upon determination of the employm ause 28A-1.1 the determination provisions of this Contract which req ny releaseorfurther under clause 28A.1.1 - C h S E S 28A-3 to 28A.6

release of Retention to the Contract0 28A.6 shall apply.

isions of clauses 28A-3 to

sses in respect of which before indemnify the Employer under

same, butsubjectal

28A.5.5, which shall includeas relevant amounts in respect of

lue of work properly executed atthe date of determination of the nt of the Contractor, such value to be ascertained in accordance with the as if the employment of the Contractor had not been determined, together

mounts due to the Contractor undertheconditions not included in such total

certained in respect of direct loss and/or expense under clauses 26 and 34.3

pay, and on such payment in full by the Employer such materials or goods shall become the property of the Employer; and

60 @The Joint Contracts Tribunal Limited 2003 P With 98 19B3)

28A.5 -5 any direct loss and/ordamagecaused to the Contractor by the determination.

Amounts attributable to any Nominated Sub- contractor

Information in Contract Bills

Information not in Contract Bills

Payments subject to clause 31

Interim Certificates and valuations - final date for payment - interest

After taking into account amounts previously paid to the Contractor under this Contract the Employer shall paytothe Contractorthe amount properly due in respect ofthis account within 28 days of its submission by the Employer to the Contractor but without deduction of any Retention.

28A-6 Where determination of the employment ofthe Contractor has occurred in respect of the matter referred to in clause 28A-1.1.2 and the loss or damage to the Works occasioned by anyone or more of the Specified Perils wascaused by some negligence or default ofthe Employer or of any person for whom the Employer is responsible, th determination of the employment of the Contractor the account pre 28A.5 shall include the amount, if any, to which clause 28A.5-5 refers

28A.7 The Employer shall inform the Contractor in writing which pa or payable under clause 28A-5 is or are fairly and reasonably a Sub-Contractor and shall so inform each Nominated Sub-Contract

29

29.1

29.2

29.3

30

30A

30.1

actandwhich is

execution of such work.

oyer, then the Employer unreasonably delayed or

Employer as referred to in clauses med to be a person for whom the

Where it is stated

Certificates and

Employer is a 'contractor' forthe purposes of the the payment of the Final Certificate the of the Employer to make any payment

ntract is subjecttoclause31.

as provided in clause 30 issue Interim from the Employer specifying

nt relates and the basis on which that amount was calcu1ated;and payment pursuanttoan Interim Certificateshall be 14daysfrom of each Interim Certificate.

ay the amount, or any part thereof, due to the bythe final date for its paymenttheEmployershal1 totheamount not properly paid simple interest payment is made. Payment of such simple interest e Contractor by the Employer. The rate of interest overthe Base Rate of the Bank of England which

at the date the payment by the Employer became overdue. Any payment of simple interest underthis clause3O.l.l-1 shall not in any circumstances be construed as a waiver by the Contractor of his right to proper paymentof the principal amount due from the Employer to the Contractor in accordance with, and within the time stated in, the Conditions or of the rights of the Contractor in regard to suspension of the performance of his obligations underthis Contractto the Employer pursuant to clause 30.1 -4 or to determination of his employment pursuanttothedefault referredto inclause28-2-1.1.

P With an iamm

Advance payment

Interim valuations

Application by Contractor - amount of gross valuation

30.1 -1 -2

.1 .3

.1 .4

*1 -5

30.1 *1 -6

30-1 *2 -1

-2 *2

Notwithstanding the fiduciary interest of the Employer in the Retention as stated in clause 30.5.1 the Employer is entitled to exercise any right underthis Contract of withholding and/or deduction from moniesdue or to become due to the Contractor against any amount so due under an Interim Certificate whether or not any Retention is included in that Interim Certificate by the operation of clause30-4. Such withholding and/or deduction is subject to the restriction in clause35.13.5.3.2.

Not laterthan 5 days after the date of issue of an Interim Certificate the Employer shall giveawritten noticetotheContractorwhichshall, in respectoftheamount stated as due in that Interim Certificate, specify the amount of the payment

which that amount is calculated.

Not laterthan 5 days before the final date for payme toclause30.1-1.1 theEmployer maygivea written n

amount of withholding and/or deduction attr

Wherethe Employer does notgive anywri and/ortoclause30~l~l~4the Employersha he amount due pursuantto clause 30.1.1.1.

identified in the Appendix Appendix and such advan Contractor on the terms st states that an advance if the Contractor has the Employer on the JCTand annexed to

Bankers' Association and the he Seventh Recital a bond on

uantity Surveyorwheneverthe Architect rpose of ascertaining the amountto be

e Architect to issue Interim Certificates as not laterthan 7 days before the date of an

uantity Surveyor an application which sets ders to be the amount of the gross valuation pursuant shall include with his application any application ominated Sub-Contractor which sets out what the

or considers to be the amount of the grossvaluation tions NSC/C. If the Contractor submits such an or shall makean interimvaluation.Totheextent

eyor disagrees with the grossvaluation in the Contractor's ted Sub-Contractor's application the Quantity aking thevaluation shall submittotheContractora

h shall be in similar detail to that given in the application, which

rtificates shall be issued on the dates provided for in the Appendix and which I continue uptothe date of Practical Completion or to within one month Thereafter Interim Certificates shall be issued as and when further amounts ined as payableto the Contractor from the Employer and afterthe expiration

Issue of Interim Certificates

Liability Period named in the Appendix or upon the issue of the Certificate of Making Good Defects (whichever is the later) provided always that the not be required to issue an Interim Certificate within one calendar month

a previous Interim Certificate.

Footnote

67

Imml Where formula adjustment underclause40 applies, clause 40.2.1 provides: 'Interim valuations shall bemade before the issueof each Interim Certificateand

accordingly the words "wheneverthe Architect considers them to be necessary"shal1 be deemed to have been deleted inclause 30.1.2.1.'

P with QR mm?i mTho .hint CnntraFtc Trihiinnl I imitrrl 713137

Right of suspension of obligations by Contractor

Ascertainment of amountsduein Interim Certificates

30.1 -4 Without prejudice to any other rights and remedies which the Contractor may possess, if the Employer shall, subjectto any notice issued pursuanttoclause30~1~1~4,fail to pay the Contractor in full (including any VATdue pursuanttotheVATAgreement) by the final date for payment as required bythe Conditions and such failure shall continue for7 days after the Contractor has given to the Employer, with a copy to the Architect, written notice of his intention to suspend the performance of his obligations underthis Contract to the Employer and the ground or grounds on which it is intended to suspend performance then the Contractor may suspend such performance of his obligations underthis Contract to the Employer until payment in full occurs. Such suspension shall not be treated as a suspension to which clause 27-2-1.1 refers or a failureto proceed regularly and diligentlywith the Worksto which clause 27-2.1.2 refers.

30.2 The amount stated as due in an Interim Certificate, subject to a parties as to stage payments,shall be the gross valuation as re

any amountwhich may be deducted and retained bythe E clause 30.4 (in the Conditionscalled 'the Retention') Imm-11

thetotal amount of any advance payment duefor r accordance with the terms for such reimburseme clause 30.1.1-6 and

thetotal amount of any advance payment due for accordance with the terms of such reimbursement rt 1 Dursuantto

/i.- - clause 4.1.2 of Conditions NSC/Cand

the total amount stated as due in lnteri Conditions.

sly issued underthe

The gross valuation shall be th lessthetotal oftheamounts re

clauses 30.2.1 and 30-2-2 d up to and including a

30.2 .1 There shall be in ct to Retention:

.1 .1 the total va by the Contractor including anywork 13.4-1-2appliesortowhich a Price

d pursuanttoclause 13.4.1-2 paragraph A2or thereof accepted pursuanttoclause 13.4.1.2

mentor repair of loss uses 228.3.5and

o the price for that work as stated in the Activity Schedule;

e materials and goods delivered to or adjacent to the Works for in bythe Contractor but not so incorporated, provided thatthe

rials and goods shall only be included as and from such times as y, properly and not prematurely so delivered and are adequately

alue of any materials or goods or items pre-fabricated which are 'listed value of which is required pursuant to clause 30.3 to be included in the ated as due in the Interim Certificate;

unts referred to in clause 4.174 of Conditions NSC/C in respect of each Sub-Contractor;

-5 the profit of the Contractor upon the total ofthe amounts referred to in clauses 30.2.1.4 and 30.2.2-5 less the total of the amount referred to in clause 30.2.3-2 at the rates included in the Contract Bills, or, in the case where the nomination arises from an instruction as to the expenditure of a provisional sum, at rates related thereto, or, if none, at reasonable rates.

Footnote Imm~llOptionalclause30~4Aprovidesfora standard bond to be given in lieu of Retention.The terms of the bond are set out in Annex 3 to the Conditions. An entry

should be made in the Appendixtostatewhether or not this optional clause applies.


30.2 -2 There shall be included the following which are not subject to Retention:

a 2 .1 any amounts to be included in Interim Certificates in accordance with clause 3 as a result of payments made or costs incurred by the Contractor under clauses 6.2,8.3, 9.2,21.2-3,228.2 and 22C-3;

-2 -2 any amounts ascertained under clause 26.1 or34.3 or in respect of any restoration, replacement or repair of loss or damage and removal and disposal of debris which in clauses 228.3.5 and 22C.4.4.2 are treated as if they were a Variation;

.2 -3 anyamounttowhichclause35~17 refers;

.2 -4 any amount payabletotheContractorunderclause38or

e 2 -5 the amounts referred to in clause 4.17-2 of Condition Nominated Sub-Contractor.

30-2 -3 There shall be deducted the following which ar

4 e1 any amount deductible under clause7 or allowable bythe Contractor to the Employ

.3 -2 any amount referred to in clause 4-17.3 of Nominated Sub-Contractor.

Off-site materials 30-3 The materials or goods or items p hich this clause orgoods - 'the refers ('the listed items') shall hav

Contractor and annexed to the Con

the Works provided that the follo

listed items' ue in an Interim

30.3 -1 the Contractor able proof that the property in

oyer, the uniquely identified listed items , if so stated in the Appendix, has also

enth recital a bond on otherterms is required by

30.3 -2 thecontract items which are not uniquely identified has provided

ted items shall become the property of the Employer; and

therterms is required by the Employer;

items are in accordance with this Contract;

items at the premises where they have been manufactured or assembled or

have been clearly and visibly marked individually or in sets by letters orfigures or by reference to a pre-determined code

and identify

P With 98 (9/03) 64 @The Joint Contracts Tribunal Limited 2003 I

c 30-3 .4 a 1 the Employer and to whoseordertheyare held;and r

-4 -2 their destination as the Works;

30.3 -5 the Contractor has provided the Employerwith reasonable proof that the listed items are insured against loss or damage fortheir full value under a policy of insurance protecting the interests of the Employer and the Contractor in respect of the Specified Perils, during the period commencing with the transfer of property in the listed items to the Contractor until they are delivered to, or adjacent to, the Works.

I i

I

3 ,

Retention - rules for ascertainment

30.4 ~1 The Retention which the Employer may deduct and retain as referred to in clause 30.2 shall be such percentage ofthe total amount included undercla Interim Certificate as arisesfrom the operation of the followin

-1 e1 the percentage (in the Conditions and Appendixcalle deductible underclause30~4~1~2shaII be5 percent (u been agreed between the parties and specified in the Percentage); and the percentage deductible un of the Retention Percentage; inn]

.1 .2 1001 the Retention Percentage may be deduct amount as relatesto:

work which has not reached Practical C

nu 17.1,18-1.1 or35.16);and

amounts in respect of th 30.2.1.2,30.2.1.3and30 o materials and goods as referred to in c

luded under clauses

-1 -3 ioolhalfth m so much of the said total

304 .2 The Retention deduct

and specified in the statements to as the 'Contractor's retention' and

I

Contractor's bond 304A -1 Where it is st clause 30.4A applies, the provisions in clauses in lieu of Retention Employer may deduct and retain a percentage of

e 30.2.1 in any Interim Certificate ('the Retention') son treafmentofRetention)shall not apply;save thatthe eof each Interim Certificate prepare, or instructthe Quantity

statement specifying what deduction in respect of the and of the Nominated Sub-Contract Retention for each

ractor would have been made, using the percentage stated in the oclause30~4~1~1,inarrivingattheamountstatedasdueinsuch

ad the provisions in clauses30-2.1 and 30-4applied. 100~11

re the Date of Possession the Contractor shall provide and thereafter bond infavouroftheEmployerinthetermssetoutatAnnex3 tothe

incorporating in clause 2 (maximumaggregatesumland in clause 6(iii) he bond, the sum and date stated in the Appendix. The bond executed

named in the bond ('the Surety') shall be supplied to the Employer.

V the Employer atthe tenderstage estimates t Sum to be €500,000 or over, the Retention should not be more than 3 percent.

1001 By theoperation of clauses30~4-1.2 and 30.4.1.3the Contractorwill have released to him by the Ernployer uponpaymentofthenextlnterimCertificateafter PracticalCompletionofthewholeorpartoftheWorks approximately one half of the Retention on the whole or theappropriate part; and upon payment of the next Interim Certificate afterthe expiration of the Defects Liability Period named in the Appendix, or after the issue

U of the Certificate of Completion of Making Good Defects, whicheveristheleter,the balancaoftheRetentionon the wholeortheappropriate part. When Retention isso included in Interim Certificates it becomes a 'sum due' to theContractorand thereforesubjecttothe rightsofthe Employertodeducttherefrom inaccordancewith the rightsoftheEmployersotodeductasset outinthe Conditions.

lw11Thissaving provision is included inview ofthe provisionsinclauses4(ii)and4(iii)ofthe'Bondinlieuof Retention'atAnnax3.


30-4A -3 If the Contractor is in breach of clause30.4A.2 by not providing and maintaining the bond the provisions of clauses 30.2-1,30-4 and 30.5 which refer to the deduction and treatment of the Retention shall apply in respect of the next Interim Certificate and subsequent Interim Certificates issued afterthe date of the breach atthe percentage stated in the Appendix pursuant to clause 30-4.1.1. If later the Contractor provides and thereafter maintains the required bond the Employer shall, in the next Interim Certificate after such compliance, have released to the Contractor and to any Nominated Sub-Contractorthe Retention deducted during the period ofthe breach.

30.4A a 4 If at any time the Retention that would have been deducted had the provisions of clauses 30.2.1 and 30.4applied exceeds the amount of the aggregate sum stated in the bond,

30.4A -5 Where the Employer has required in respect of any default to which t which the Employer could make a

Ruleson treatment of Retention

30-5 The Retention shall be subject to the following rules:

Contractor and for

30.5 -2 .I atthedateof each Interim Certifi prepare, or instruct the Quantity Surveyorto prepar Contractor’s retention

inated Sub-Contractor deducted in arriving at the

e Employer, to the Contractor

30.5 -3 The Employer ercises his right underclause or so requests, at the date of

y such interest to the Contractor or any sub-

of any Nominated Sub-contractor by referenceto the latest

months after Practical Completion of the Works the Contractor e Architect, or, if so instructed by the Architect, the Quantity

Final adjustment ofContractSum - documents from Contractor

actors and Nominated Suppliers.

Architect, or, if the Architect has so instructed, the Quantity Surveyor, shall ertain (unless previously ascertained) any loss and/or expense under

clauses26.1,26.4.1 and 34.3, and

-2 -2 the Quantity Surveyor shall prepare a statement of all adjustments to be made to the Contract Sum as referred to in clause30.6.2 other than any to which clause30.6.1-2.1 applies

66

and the Architect shall forthwith send a copy of any ascertainmentto which clause 30.6.1-2-1 refers and of the statement prepared in compliance with clause 30.6-1-2.2 tothecontractorandthe relevantextracttherefrom toeach Nominated Sub- contractor.

@The Joint Contracts Tribunal Limited 2003 P With 98 (9D3)

ltemsincluded in 30.6 e 2 The Contract Sum shall be adjusted by: adjustment of Contract Sum - the amount of any Valuations agreed bythe Employer and the Contractortowhich

clause 13.4-1-1 refers, and

- the amounts stated in any 13A Quotations forwhich the Architect has issued to the Contractor a confirmed acceptance pursuant to clause 13A-3.2 and for the amount of any Variations thereto asvalued pursuant to clause 13A.8, and

- the amount of any Price Statement or any partthereof accepted pursuant to clause 13.4.1.2 paragraph A2 or amended Price Statement or any part thereof accepted pursuanttoclause 13.4.1.2 paragraph A4-2

and as follows:

there shall be deducted:

-2 -1 all prime cost sums, all amounts in respect of

whose employment has been determined in clause 35.1, the certified value of any

was not in accordance with the the Employer, and any

-2 -2 all provisional sums and the value Quantity is included in the Contract Bills;

.2 e3 theamount ofthevaluation U omitted in accordance with or subsequently sanctioned

lued underclause 13.5;

-2 -4 any amount deducted 7 or 8.4.2 or 17-2 or 17.3 or any

avariation required bythe Ar by him in writing, togethe eContract Billsforany . otherwork as referred to i

amount all isapplicab

derclause 38,39 or 40, whichever

-2 -5 anyotheramoun Contractto bedeductedfrom the Contract Sum;

thereshall be ded: Q A V sted or ascertained under all relevant provisionsof

use 35.2 has been accepted;

but shall exclude any value added tax which is treated, or is t tax by the Contractor;

it of the Contractor upon the amounts referred to in clauses 30.6-2-6, and 30-6-2.8 atthe rates included in the Contract Bills or in the cases where ination arisesfrom an instruction as to the expenditure of a provisional

ounts paid or payable by the Employerto the Contractor as a result of payments made or costs incurred by the Contractor under clauses 6.2,8.3,9.2 and 2 1.2.3;

-1 1 the amount of thevaluation under clause 13-5 of any Variation, including the valuationofotherworkasreferred toinclause 13.5.5,otherthan theamountofthe valuation of any omission under clause 13-5.2;


30.6 .2 .12 the amount of the Valuation of work executed by, or the amount of any disbursements by, the Contractor in accordance with instructions ofthe Architect as to the expenditure of provisional sums included in the Contract Bills and of all work for which an Approximate Quantity is included in the Contract Bills; .

-2 ~ 1 3 any amount ascertained underclause26.1 or34.3;

.2 e14 any amount paid bytheContractorunderclause 22Borclause22Cwhich the Contractor is entitled to have added to the Contract Sum;

.2 -15 any amount paid or payable to the Contractor under clause 38,39 or 40, whichever is

-2 -16 any other amountwhich is required bv this Contract to be a

applicable;

Sum;

-2 -17 any amount to be paid in lieu of any ascertainment und pursuantto clause 13.4-1.2 paragraph A7.

So soon as is practicable but not less than 28 days Certificate referred to in clause 30.8 and notwithst not have elapsed since the issue ofthe previous In an Interim Certificate the gross valuation for which s contract sumsfor all Nominated Sub-Contrac relevant provisions of Conditions NSC/C.

Interim Certificate - final adjustment or ascertainment of nominated sub- contract sums

30.7

I

lssueof Final 30.8 .1 The Architect shall issue the Final C Nominated Sub- whichever of the Contractor of the date of its issue)

following occurs last: Certificate

the end of the Defects Lia

Making Good Defects under

A to thecontractor of any ascertainmentto tement prepared in compliance with

ready stated as due in Interim Certificates plus the yment paid pursuanttoclause 30.1.1.6, and

accordance with clause30-6.2, and

ount relates and the basis on which the statement in the Final been calculated

hall (without prejudice to the rights of s which have subject to any notice

paid in full by the Employer by the final date t of such Certificate) be expressed in the said Certificate as a balance due to tor from the Employer or to the Employer from the Contractor as the case

I an 5 daysafterthe date of issue of the Final Certificate the Employer shall give to the Contractor which shall, in respect of any balance stated as due to rom the Employer in the Final Certificate, specify the amount of the sed to be made, to whatthe amount ofthe payment relates and the basis

ble by the Employerto the Contractor y beshall be28daysfromthedateof

issue of the said Certificate. Not laterthan 5days before the final date for payment of the balance the Employer may give a written notice to the Contractor which shall specify any amount proposed to be withheld and/ordeducted from any balance due to the Contractor, the ground orgrounds forsuch withholding and/ordeduction and the amount of withholding and/or deduction attributable to each ground.

I

I 68 @The Joint Contracts Tribunal Limited 2003 P With 98 (9/03)

Effect of Final Certificate

30-8 -4 Where the Employer does not give a written notice pursuantto clause30.8.2 and/or clause 30-8-3 the Employer shall pay the Contractor the balance stated as due to the Contractor in the Final Certificate.

30.8 -5 If the Employer or the Contractor fails properly to pay the said balance, or any part thereof, bythe final date for its paymentthe Employer orthe Contractor asthecase may be shall pay to the other, in addition to the balance not properly paid, simple interest thereon for the period until such payment is made.The rate of interest payable shall be five percent (5%) overthe Base Rateofthe Bankof England which iscurrent atthedate the payment by the Employer or by the Contractor as the case may be became overdue. Any payment of simple interest underthis clause 30.8 shall not in any circumstances be construed as a waiver bythe Contractor or by the Emp right to proper payment of the aforesaid balance due f Contractor or from the Contractor to the Employer in a

30.8 -6 Liabilityfor payment ofthe balancepursuantto claus pursuanttoclause30.8-5shall betreatedasa debtdu or to the Employer by the Contractor as the case may

30.9 .I Except as provided in claus Certificate shall have effect with this Contract (whether

-1 -1 conclusiveevidencethat where particular qualities of any materials or goods or any wasdescribed expressly in the C

the Architect underthe itect under clause

educted from the t Sum save where there

I haveeffect asconclusiveevidenceastoall other

thatthe reimbursement of direct loss and/orexpense, if any, suantto clause 26.1 is in final settlement of all and any claims

as or may have arising out ofthe occurrence of any of the n clause 26.2 whether such claim be for breach of contract, ry duty or otherwise.

ication, arbitration or other proceedings have been commenced by either e the Final Certificate has been issued the Final Certificate shall have effect as evidence as provided in clause 30.9.1 after either

proceedings have been concluded, whereupon the Final Certificate shall be ctto the terms of any decision, award or judgment in or settlement of such

afterthe issue of the Final Certificate during which neither Party has taken any further step in such proceedings, whereupon the Final Certificate shall be subjectto any terms agreed in partial settlement,

whichever shall bethe earlier.

.3 If any adjudication, arbitration or other proceedings have been commenced byeither Partywithin 28 days afterthe Final Certificate has been issued, the Final Certificateshall have effect as conclusive evidence as provided in clause30-9-1 save only in respect of all matters to which those proceedings relate.

30.9

I 69 P With 98 (9B3) @The Joint Contracts Tribunal Limited 2003

30.9 -4 Where pursuant to clause 41A-7-1 either Party wishes to have a dispute or difference on which an Adjudicator has given his decision on a date which is after the date of issue of the Final Certificate finally determined by arbitration or legal proceedings, either Party may commence arbitration or legal proceedings within 28days of the date on which the Adjudicator gave his decision.

Effectof certificates other thanFinal Certificate 30-10 -1 any works, materials or goods

30-10 Save as aforesaid no certificate of the Architect shall of itself be conclusive evidence that

Definitions

or

30.10 -2 any Performance Specified Work

to which it relates are in accordance with this Contract.

'the Act'meansthelncomeand CorporationTaxesA

31 Construction Industry Scheme (CBI

31.1 In thisclause and inthe Appendix:

modification thereof;

'Authorisation' means:

either 'CIS 4', the hich has an expiry date or the Regulations appearing

or Reg u l a t i o n t p e a ~ ~ b d u l e 1 ofthe Regulations and issued by thelnland ven e-

A tractor's letter headed stationery, not a y regulation 34 of the Regulations;

ions defined in S.567 ofthe Act as construction

'contractor' mea ontractor forthe purposes of the Act and the

the Contractor or to any other person of truction operations to which the contract

s made relates as provided in regulation 7 of the Regulations;

e Income Tax (SubContractors in the Construction Industry) 43 as amended by the Income Tax (Sub-Contractors in the

mendment) Regulations 1998 S.I. No. 2622 or any amendment or

n force at the time of payment referred d (4A) of the Act;

meansa person who isa sub-contractor forthe purposesofthe Act and the

n s:

ither a tax payment voucher in the form CIS 25 provided by regulation 7 and appearing as shown in Schedule 1 ofthe Regulations and issued by the Inland Revenue;

a gross payment voucher CIS 24 in the form provided by regulation 29 and appearing as shown in Schedule 1 ofthe Regulations and issued by the Inland Revenue.


Whether Employerisa 'contractor'

Payment by Employer -valid Authorisation essential

Validityof Authorisation - Employer's query

Authorisation: CIS 4 registration card

Authorisation: CIS 5 or CIS 6 or a certifying document

31.2 Where it isstated in the AppendixthattheEmployeris nota'contractor'clauses31~3to31-14 shall not apply. Nevertheless if, at any time up to the payment of the Final Certificate, the Employer becomes such a 'contractor', the Employer shall so inform the Contractor and the provisions of clauses 31.3 to 31.1 4 shall thereupon become operative.

31.3 The Employer shall not make any payment under or pursuant to this Contract unless a valid Authorisation has been provided to him or his nominated representative by the Contractor.

31.4 -1 lfthe Employer or his nominated representative is not satisfied with the validity of the Authorisation provided by the Contractor, he shall thereupon notify the Contractor in writing of hisgrounds for considering that the Authorisation is

31.4 -2 Where a notification has been given underclause31.4.1, t any payment under or pursuant to this Contract until

either the Employer or his nominated representative h which heconsiders to bevalid

the Contractor has re-submitted the Au Contractor's tax off ice, confirming that

or

31.5 -1 Where the Authorisation is a CIS 4 registration c rethefinal datefor payment of any sum due:

-1 -1 theContractorshallgivetotheE owing the direct cost of materials to the Contractor and t and

be included in the payment;

-1 .2 the Employer shall make

31-5 -2 Where the Con 1 he shall indemnifythe Employer

31-5 -3 Where the Co h clause31-5-1-1, orwherethe Employer has

r shall make a fair estimate of the direct cost of

31.6 Wherethe Auth 5 or CIS 6or a certifying document the Employer shall

is a CIS 4 butthe Contractor is subsequently issued with a CIS 5 or the Contractor shall immediately inform the Employer and

IS 6 in person to the Employer or his nominated representative is nominated representative a certifying document. Provided the epresentative is satisfied with the validity of the changed

Authorisation

I thereupon apply.

ion CIS 5 orClS 6 is withdrawn bythe Inland Revenue for any reason,the I thereupon notify the Employer or his authorised representative and the

e Contractor provides the Employer or his authorised representative with a ion CIS 4.Aftersuch provisionclauses31~5~1,31~5~2 and 31-5-3shall apply.

ion CIS 5 or CIS 6 expires, the Employer shall make no further payments to the

all make no further paymentsto the Contractor under or pursuant tothis

o this Contract until the Contractor:

either shows in person to the Employer or his nominated representative an Authorisation CIS 4and if soclauses31~5~1,31~5~2 and31.5.3shall apply;

provides to the Employer or his nominated representative an Authorisation CIS 5 or CIS 60r a certifying document and if so clause 31.6 shall apply.

or


Vouchers i ,

Correction of errors in making thestatutory deduction

Relation to other clauses

Disputesor differences

!

31.10 Where Authorisation CIS 4applies and the Employer has made payments to the Contractor, theEmployershallwithin 14daysoftheendoftheincometaxmonth [oO21in which the payment is made provide the Contractor with a copy of the CIS 25voucher that he has sentto the Inland Revenue showing all the payments made in the tax month concerned and the total tax deducted.

31-11 Where Authorisation CISGappliesand the Employer has made paymentsto the Contractor, the Contractor shall within 14 days of the end of the income tax month 1-21 in which the payment is made provide the CIS 24voucher to the Employer who shall add thereto his tax reference and send the voucher to the Inland Revenue with a copy to the Contractor.

31-12 Where the Employer has made an error or omission in calculating the he may correct the error by repayment or further deduction from p Contractor, subject only to an instruction by the Inland Revenue to such a correction.

31.13 If compliance with thisclause 31 involves the Emp with any other ofthe Conditions, then the provisio

31-14 The relevant procedures applicable under this Contra differences between the Employer and the Contrac between the Employer and the Contractor as to the the Act orthe Regulations oranyotherAct of Parlia order made under any Act of Parliament provide fors dispute or difference.

32 [Number not used]

33 [Number not used]

34 Antiquities

Effect of find of antiquities

ue which may be found on the site rks shall become the property of the

ctor shall forthwith:

34.1 .1 usehisbe object and shall cease work if and insofar as he object or prevent or impede its excavation

34.1 -2 takeallste aryto preservethe object in the exact position and

rks ofthe discovery and precise location of the

Arc hiteds instructions on antiquities found

structions in regard to what is to be done concerning an object under clause 34.1, and (without prejudice tothe generality of his

may require the Contractorto permit the examination, excavation byathird party.Anysuch third partyshallforthepurposesof be a person for whom the Employer is responsible and notto be a

nion of the Architect compliancewith the provisions of clause34.1 or with an issued under clause 34.2 has involved the Contractor in direct loss and/or

imbursed by a payment made under any other thiscontractthen the Architect himself shall ascertain or shall instructthe rveyorto ascertain the amountof such lossand/orexpense.

forthe ascertainment of such loss and/or in writing to the Contractor what extension of time, if

n respect ofthe Relevant Event referred to in clause 2545.1 so far as that clause refers to clause34

-3 Any amount from time to time so ascertained shall be added to the Contract Sum. 34.3

Footnote Im2lThe incometaxmonthendson the 5thdayofthe month.


Part 2: Nominated Sub-Contractors and Nominated Suppliers

Nominated Sub-Contractors

35 GENERAL

Definition of a 35-1 Where Nominated Sub- Contractor 35-1 -1 in the Contract Bills; or

35.1 .2 in any instruction of the Architect under clause 13.3 on th sum included in the Contract Bills;or

35.1 -3 in any instruction ofthe Architect under clause 13 but not further or otherwise,

-3 .1 that it consists of work additional to that s

e3 .2 that any supply and fixing of Nominated Sub-Contractor i kind to any supply and fixing o

tea sub-contractor; or

35.1 .4 by agreement (which agre

the Architect has r by naming a sub-contractor, ub-contractor to the Contractor work, the sub-contractor so

ovisions of clause 35.1 shall apply thod of Measurement for a PC sum to

Contractor's 35.2 -1 tender forworks otherwise reserved for a Nominated Sub- Contractor

course of his business directly carries out works hich clause 35 applies, and where items of such

and the Architect is prepared to receive tenders from nthecontractor shall be permitted totender forthe

without prejudice to the Employer's right to reject the lowest ractor'stender isaccepted, heshall notsub-lettheworktoa

issued underclause 13.3itshall bedeemedforthepurposesof en included in the Contract Bills and the item of work to which it

aconditionofanytenderaccepted underclause35~2thatclause 13shall ofthe items of work included in the tender as if for the reference therein

ntract Drawings and the Contract Bills there were references to the equivalent ents included in or referred to in thetendersubmitted underclause 35.2.

provisions of clause 35 otherthan clause 35.2 shall apply to works for which Contractor is accepted under clause 35.2.

PROCEDURE FOR NOMINATION OF A SUB-CONTRACTOR

The nomination of a sub-contractorto which clause 35.1 appliesshall be effected in accordance with clauses 35.4 to 35.9 inclusive.

P With 98 W03) @The Joint Contracts Tribunal Limited 2003 73

Documents relating to Nominated Sub- Contractors the identification term:

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

Name of document Identification term

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

NSC/T

Part 1: The Employer'slnvitation toTendertoa

Part2: Tender by a Sub-Contractor

Part3: Particular Conditions (to be agreed by a Contractor

The Standard Form of Articles of Nominated Sub-Contract Agreement between a Contractor and a Nominated Sub-Contractor, 1998 Edition

The Standard Conditions of Nominated Sub-Contrac Edition, incorporated by reference into Agreement N

The Standard Form of Employer/Nominated Sub-Contractor Agreement, 1998 Edition

The Standard Form of Nomination lnstr Su b-Contractor

- Part1 Sub-Contractor

and a Sub-Contractor nominated under clause 35.6)

I omination NSC/N

Contractor's right 35.5 .I No person againstwhom th of reasonable Nominated Sub-Contractor. objection

! tor can then comply with clause

I such nomination instruction I

Architect's instruction on Nomination

documents accompanying the instruction

NSCIN- bythe Architect and NSC/TPart2completed andsigned bythe ed by or on behalf ofthe Employeras'approved'togetherwith a

ender documents listed in and enclosed with NSC/T Part 1 itional documents and/or amendments thereto as have been

completed Agreement NSCWentered into between the Employer and the

ions or restrictions imposed bythe Employer f Works: Employer's requirements d location of access; and

Acopy of the instruction shall be sent by the Architect to the sub-contractor togetherwith a copy of the completed Appendix forthe Main Contract. instruction to sub-

contractor

@The Joint Contracts Tribunal Limited 2003

~ ~~

P With 98 (9/031

Contractots The Contractor shall forthwith upon receipt of such instruction:

Architect's 35.7 -1 complete in agreementwith the subcontractor NSCn Part3 and have that completed instruction

35-7 obligationson receipt of

NSCFPart3signed by oron behalfoftheContractorand by oron behalf ofthesub- contractor; and

Non-compliance with clause 35.7 - Contractofs obligation to notify Architect

Architect's duty on receipt of any notice under clause 35.8

35.7 -2 execute Agreement NSCIAwith the subcontractor

and thereupon shall send a copy of the completed Agreement NSCIAand of the agreed and signed NSC/TPart3(butnot theother Annexuresto Agreement NSC/A)totheArchitect.

35.8 If the Contractor, having used his best endeavours, has not, within 10

notice in writing inform the Architect

either

receipt of such instruction, complied with clause 35-7, the

35-8 . I of the date by which he expects to have complied with c l a u s e 3 q \ or

.2 that the non-compliance is due to other matters i 35-8

35-9 Within a reasonable time after receipt of a notice undeh$ause&Sdeq/chitectshall:

35.9 -1 whereclause35.8-1 amlies, after cons n u a n d tation WI so far as he considers it reasonable, fix a later date with clause 35.7;

ctor shall have complied

35-9 -2 where clause35-8.2 applies, inf

either that he does ntified in the notice justify non- ination instruction, in which case

identified in the notice justify non-

uefurther instructionssothatthe clause 35.7 in respect of such nomination

nomination instruction and issue an instruction

35-10 [NU

35-11 [NU

[ppl The 'other matters identified in the Contractots noticeamay include: any discrepancy in or divergence between thenumberedtenderdocumentsora discrepancy in or divergence between the numbered tender documents andthedocuments referred toin clauses2.3.1 to2.3.4;and any reasonsgiven tothe Contractor by the subcontractor for not agreeing the items in N S W Part 3 or for not being prepared to have NSWPart3signed by oron hisbehalfwhich may relate to: the items in the Main Contract Appendix sent

~ ~~~

to him bytheArchitectwithacopyofthenomination instruction differing from those in the Main Contract Appendix attached to tha Architect's Invitation toTender (NSWPart 1);or to any information given to himinitems7.8end9oftheArchitect'slnvitation to Tender having beenchangedasconfirmed by the Architect when issuing hisnomination instruction (see clause 35-6-31, which changes have to be identified in NSWPart 3.


C !

i Architect -direction a8 to interim payment for Nominated Sub-Contractor

Direct payment of Nominated Sub- Contractor

PAYMENT OF NOMINATED SUB-CONTRACTOR

35.13 -1 The Architect shall on the issue of each Interim Certificate:

-1 .1 direct the Contractor as to the amount of each interim or final paymentto Nominated Sub-Contractors which is included in the amount stated as due in Interim Certificates and the amount of such interim orfinal payment shall be computed bythe Architect in accordance with the relevant provisions of Conditions NSCIC; and

-1 .2 forthwith inform each Nominated Sub-Contractor of the amount of any interim or final payment directed in accordancewithclause35~13~1.1.

35.13 .2 Each paymentdirected under clause35.13.1.1 shall be paid b

35.13 -3 Before the issue of each Interim Certificat

date for its payment in accordance with Conditions NSC/C.

of the Final Certificate the Contractors of payment bythecontractor pursuan

35.13 a 4 If the Contractor is unableto provide th because of somefailureoromission of document or other evidence to the Con require and the Architect is reasonablysatis reasonable proof is not furnished byth shall not apply andthe provisionsofcl satisfied.

Architect shall issue which the Contract0

-5 -2 Providedth cate underclause35.13-5.1, and ture payment otherwise due to the

ontractor has failed to pay (together with would have been due to the Nominated

ctorwould otherwise be entitled to payment of an amount n Interim Certificate under clause 30, the reduction and

30 or, if there is no such balance, not laterthan the expiry of ays within which the Contractor would otherwise be entitled

o the Contractor is the Retention or any part thereof, the ent to the Nominated Sub-Contractors referred to in clause xceed any part of the Contractor's retention (as defined in

ere the Employer has to pay2 or more Nominated Sub-Contractors but the ount due orto become due to the Contractor is insufficient to enable the

Employer to pay the Nominated Sub-Contractors in full, the Employer shall applythe amount available pro rata to the amounts from time to time remaining unpaid by the Contractor or adopt such other method of apportionment as may appearto the Employerto be fair and reasonable having regard to all the relevantcircumstances;

76 @The Joint Contracts Tribunal Limited 2003 P With 98 (9/031

Agreement

pre-nomination payments to Nominated Sub- contractor by Employer

N S W -

35-13 -5 continued

-3 -4 clause 35-13-5.2 shall cease to have effect absolutely if at the date when the reduction and payment to the Nominated Sub-Contractors referred to in clause 35-13.5.2 would otherwise be made there is in existence

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

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

whichever shall have first occurred. [qqi n 35-13 -6 Where, in accordance with clause 2.2 of Agreement NSC/W, e mplo befor e

date of the issue of an instruction nominating a sub-contr to , h s paid to h amount in respect of design work and/or materials or go0 < v h and/or brication is/ are included in the subject ofthe subcontract sum or tenders

.6 -1 the Employer shall send to the C o n t r a c t o r t h e e e & e A o m i n a t e d Sub-Contractor of the amountto becredite

.6 -2 the Employer may make withholdi unt of such credit from the amounts stated as due to which include amounts of interim Contractor; provided that the am due in anyone Interim Certificate Nominated Sub-Contractor inch

TlON OF NOMINATED

35.14 ~1 TheContrac Contractor any extension ofthe s (orwherethesubcontract

35-14 .2 TheArchit

an extension ofthe period or r any partthereof as referred to in

E NOMINATED SUB-CONTRACT WORKS

ontractor. Immediately upon the issue of such a certificate the Architect

ateofthe Architect underclause35.15-1 shall be issued not laterthan 2 m the date of notification to the Architect thatthe Nominated Sub- has failed to complete the sub-contract works or any part thereof.

Footnote [qql Where the Contractor is a person subject to bankruptcy laws and not the law relating to the insolvencyofacompany,clause 35.13.5.3.4will footnote [al.)


require amendmentto referto theeventson the happening of which bankruptcy occurs. (See also

P With 98 (9D3) 77

Defects in nominated sub contractworb after final payment of Nominated Sub- Contractor - before issue of Final Certificate

PRACTICAL COMPLETION OF NOMINATED SUB-CONTRACT WORKS

35.16 When in the opinion of the Architect practical completion of theworks executed by a Nominated Sub-Contractor is achieved and the Sub-Contractor has complied sufficiently with clause 5E.2.5 of Conditions NSCIC he shall forthwith issue a certificate to that effect and practical completion of such works shall be deemed to have taken place on the day named in suchcertificate, aduplicatecopyofwhich shall besent bythe Architectto the Nominated Sub-Contractor; where clause 18 applies practical completion of works executed by a Nominated Sub-Contractor in a relevant part shall be deemed to have occurred on the relevant date to which clause 18.1 refers and the Architect shall send to the Nominated Sub- contractor a copy of the written statement which he has issued pursuant to clause 18.1.

7”59\=) EARLY FINAL PAYMENT OF NOMINATED SUB-CONTRA

35.17 Providedclause 5 of Agreement NSCMl remains in fo the day named in the certificate issued under clause 3

final sub-contract sum as finally adjusted or ascerta Conditions NSCK; provided always that the Nomin

or other faults which have appeared an to remedy under the Nominated Sub-C

Contractor is bound

35-17 .2 has sent through the Contractor tot documents necessary for computation of the ascert

35.18 Upon payment bythe Contract0 to the Nominated Sub-

35.18 -1 -1 iftheorigin anydefect,shrinkage or other fault in o remedy underthe Nominated Sub- ue ofthe Final Certificate under clause

ction nominating a person (’the substituted ification work and all the provisions relating

Contractor (’the orig

ps as may be reasonable to recover, under the ginal sub-contractor a sum equal to the sub- subcontractor. The contractor shall payor allowto

recovered by the Employer ntractor provided that, before

r has agreed (which hheld) to the subcontract price

-18shall overrideor modifythe provisions ofclause35.21.

Final payment - ontractor under the provisions of

he date when the Employer takes first occurs, the Contractor shall be responsible for

saving provisions

that part of the Works for which a payment as aforesaid has not been

cableshall remain in full

I


POSITION OF EMPLOYER IN RELATION TO NOMINATED SUB-CONTRACTOR

35.20 Neither the existence nor the exercise ofthe powers in clause 35 nor anything else contained in the Conditionsshall renderthe Employer in anyway liable to any Nominated Sub-Contractor except by way and in the terms of the Agreement NSCMI.

CLAUSE 2.1 OF AGREEMENT NSC/W - POSITION OF CONTRACTOR

35.21 The Contractor shall not be responsible to the Employer for:

-1 the design of any nominated sub-contractworks insofar ass contract works have been designed by a Nominated Sub-Co

e2 the selection of the kinds of materials and goods for any n insofar as such kinds of materials and goods have been s Contractor;

.3 the satisfaction of any performance specificatio performance specification or requirement is incl any nominated sub-contract works included in o documents enclosed with any NSCn Part 1;

.4 the provision of any information req Agreement NSCMI in reasonabletime sothatthe Archit and 5.4.2 in respectthereof.

ns of clauses 5.4-1

RESTRICTIONS IN - LIMITATION OF LIABILITY OF NOMINATED SUB

actorto the Contractor is limited under the e liability of the Contractorto the Employer

35-23 [Numbe

RE RE-NOMINATION NECESSARY

ated Sub-Contract: W

informs the Architect that in the opinion of the Contractor the de default in respect of any one or more of the 1 to7.1.1.4of Conditions NSCK; and the Contractor

the Architect any observations of the Nominated Sub-Contractor in regard on which the Contractorconsidersthe Nominated Sub-Contractor is in e Architect is reasonably of the opinion thatthe Nominated Sub-

ct that one of the insolvency events referred to in (Insolvency of Nominated Sub-Contractor) has

occurred and either that under clause 7.2.3 of the aforesaid Conditions the employment of the Nominated Sub-Contractor has been automatically determined or that under clause 7-2.4 of those Conditions the Contractor has an option, with the written consent of the Architect, to determine the employment of the Nominated Sub-Contractor; or

35.24 -3 the Nominated Sub-Contractor determines hisemployment underclause7.7 of Conditions NSC/C; or


35.24 .4 the Contractor has been required bythe Employer to determine the employment of the Nominated Sub-Contractor under clause 7.3 of Conditions NSC/C and has so determined that employment; or

35-24 .5 work properly executed or materials or goods properly fixed or supplied by the Nominated Sub-Contractor have to be taken down and/or re-executed or re-fixed or re-supplied ('work to be re-executed') as a result of compliance by the Contractor or by any other Nominated Sub-Contractorwith any instruction or other exercise of a power ofthe Architect underclauses7 or8.40r 17.2or 17-3and the Nominated Sub- contractor cannot be required under the Nominated Sub-Contract and does not agree to carry out the work to be re-executed;

then:

35.24 a6 Where clause35-24.1 applies:

.6 -1 the Architectshall issuean instruction to

-6 .2 the Contractor shall inform the Architect whe

employment of the Nominated Contractor under clause 7.1-2 o instruction referred to in clause Contractor shall confirm thatth has been determined;then

a6 .3 if the Contractor informs at the employment of the Nominated Sub-Contra e Architect shall makesuch

ith clause 35 as may be execute the work and to work executed by or any

ator orthe administrative receiver of the Nominated Sub-

ordance with the Companies Act 1985 orthe Insolvency Act 1986 or any endment or re-enactment thereof as the case may be

he reasonable satisfaction of the Contractor and the Architect, prepared and ontinuetocarry outthe relevant Nominated Sub-Contract and to meet the s thereunder, the Architect may withhold his consent. Where continuation

Contractor unless the Employer and the Contractor otherwise agree.

ofthe Nominated Sub-Contractor has been given and the Contractor has determined that employment or where, under clause 7.2.3 of the Conditions NSC/C, the employment of the Nominated Sub-Contractor has been automatically determined the following shall apply.The Architect shall make such further nomination of a sub-contractor in accordance with clause 35 as may be necessary to supplyandfixthematerialsorgoodsortoexecutetheworkandto makegoodorre-

P With 98 (9/03) 80 @The Joint Contracts Tribunal Limited 2003

~~

35-24 -7 -3

-7 -4

35-24 *8 -1

-8 -2

continued

supply or re-execute as necessary any work executed by or any materials or goods supplied by the Nominated Sub-Contractor whoseemployment has been determined which were not in accordance with the relevant Nominated Sub- contract.

Where clause 35.24.4 applies the Architect shall make such further nomination of a sub-contractor in accordance with clause35 as may be necessary to supply and fix the materials or goods or to execute the work and to make good or re-supply or re-execute as necessary any work executed by or any materials or goods supplied by the Nominated Sub-Contractor whose employment ha which were not in accordance with the relevant Nominate

Where clause35-24.3 applies the A sub-contractor in accordance with the materials or goods or to execut execute as necessary a the Nominated Sub-Co not in accordance with the relevant Nom

Where elause35-24-5 a subcontractor in accordancewith cl work to be re-executed referred to in

r nomination of a

Sub-Contract resulting from such furt 35.24.7.3 or 35-24-7.4 sha Certificates and added to any extra amount, payab

r clause 35.24.6.3 or

ted Sub-Contract, and where e bythe Employer, resulting

e after such amount is certified

due to the Contractor under this ctor bythe Employerasa debt.

24.8.2 within a reasonable time, having ligation to make such further nomination

RMlNATlON OF EMPLOYMENT OF NOMINATED S INSTRUCTIONS

ine any Nominated Sub-Contract by virtue of any right to e entitled without an instruction from the Architect so to do.

minated Sub-Contractor is determined under clauses ons NSC/C, the Architect shall provide the Contractorwith the th the direction in an Interim Certificate to enable the Contractor to

ause 7.5.2 of Conditions NSC/C: namely the amount of expenses properly the Employer and the amount of direct loss and/or damage caused to the

rgoods and materials supplied by the Nominated Sub-

the determination of the employment of the Nominated Sub-Contractor; 3.1, issue an Interim Certificate which certifies the

o the extent that such value has not been included in previous Interim

Nominated Sub-Contractor is determined under clause ause7.8of those Conditions applies, the Architect shall,

pursuant to clause 35.134. issue an Interim Certificate which certifies the value of any work executed or goods and materials supplied bythe Nominated Sub-contractor to the extent that such value has not been included in previous Interim Certificates.

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81

Nominated Suppliers

Definition of a Nominated Supplier

36.1 a1 In the Conditions 'Nominated Supplier' means a supplierto the Contractor who is nominated by the Architect in one ofthe following waysto supply materialsorgoods which areto befixed bythecontractor:

where a prime cost sum is included in the Contract Bills in respect of those materials or goods and the supplier is either named in the subsequently named bythe Architect in an instruction iss

where a provisional sum is included in the Contract Bill the Architect in regard to the expenditure of such su goods is made the subject of a prime cost sum and t Architect in that instruction or in an instruction i

where a provisional sum is included in the C the Architect in regard to the expenditure of

where the Architect requi Variation and specifies m referred to in clause 36.1-

olesuppliershall bedeemed to

36-1

Architect's 36-2 instructions

Ascertainment of 36.3 costs to be set against prime cost sum

-2 In the Condition pplier'shall not apply to a supplier of ntract Bills to be fixed by the Contractor fa prime cost sum in the Contract Bills, ed in the Contract Bills or thatthere is a

inclause36.1.1-3.

the purpose of nominating a supplier for any prime cost sum is included in the Contract Bills or

'properlychargeable to the Employer e Architect'shall include the total

Is or goods less any discount other rlyso chargeable tothe Employer

ananyvalueaddedtaxwhich istreated,oriscapableof being as inputtax bythe Contractor) or duty not otherwise recoverable underthis

is payable under or by virtue of any Act of appropriation, processing, alteration,

and delivery after allowing for any

or use ofthe materials or goods to be supp1ied;and

in full within 30 days of the end of the month during which delivery is made.

obtaining the materials orgoodsfrom the Nominated Supplier such expense shall be added to the Contract Sum.


~~ ~~~

Salecontract provisions - Architect's rightto nominate supplier

36.4 Save where the Architect and the Contractor shall otherwise agree, the Architect shall only nominate as a supplier a person who will enter into a contract of sale with the Contractor which provides, inter alia:

36.4 -1

36.4 -2

*2

-2

36.4 -3

36.4 -4

that the materials or goods to be supplied shall be of the quality and standard specified provided thatwhere and to the extent that approval of the quality of materials or of the standardsof workmanship is a matter for the opinion of the Architect such quality and standardsshall be tothe reasonable satisfaction ofthe Architect;

that the Nominated Supplier shall make good by replacement or otherwise any defects in the materials or goods supplied which appear up to and including the last day of the

-1 where the materials or goods have been used or fixed that reasonable examination by the Contractor ought using orfixing;

a 2 such defects are due solely to defective wor or goods supplied and shall not have been c

responsible or by any other person for who responsible;

completed in accordanc Contractor and the Nom grounds on which that p

force majeure; or

reed between the nt agreed, the following

trike or lock-out; or

reasonably close to the date

tractor makespaymentinfullwithin30daysoftheendofthe

upplier shall not be obliged to make any delivery of materials or nywhich may have been paid for in full less only any discountforcash) ination (for any reason) of the Contractor's employment underthis

harge by the Contractor in respect of payments for materials or goods the Nominated Supplier shall be effected within 30 days of the end of the g which delivery is made less only a discount for cash of 5 percent if so

rials or goods shall pass to the Contractor upon delivery by or to the order of the Contractor, whether or not payment

has been made in full;

ifference between the Contractor and the Nominated Supplier is referred to arbitration the provisions of clause 41 B shall apply;


Contract of sale - restriction, limitation or exclusion of liability

~

36.4 -9

36.5 -1

36.5 -2

36.5 -3

that no provision in the contract of sale shall override, modify or affect in any way whatsoeverthe provisions in thecontract of sale which are included therein to give effect to clauses 36-44 to 36.4-9 inclusive.

Subject to clauses 36-5.2 and 36.5.3, where the said contract of sale between the Contractor and the Nominated Supplier in any way restricts, limits or excludes the liability ofthe Nominated Supplierto the Contractor in respect of materials or goods supplied or to be supplied, and the Architect has specifically approved in writing the said restrictions, limitations or exclusions, the liability of the Contractor to the Employer in respect of the said materials or goods shall be restricted, limited or excluded to the same extent.

The Contractor shall not be obliged to enter into a Supplier until the Architect has specifically

Nothing in clause 36.5 shall be construed supplier otherwise than in accordance

limitations or exclusions.


Part 3: Fluctuations

Choiceof 37 .1 Fluctuations shall bedealt with in accordance with whicheverofthe following fluctuation alternatives provisions - entry in Appendix clause 38; or

clause 39 [nl; or clause 40 ISSI

Appendix.

in respect of a Variation to such work.

Clause 38: Contribution, levy and tax fluctuations

Private versions'.

IttJ Notwithstanding the provisionsofclause37.1 on deemed incorporation the parties may nevertheless wish to incorporate theagreed alternative fluctuation provisions in the executed Contract. Alternatively, clause 40 should be usedwhere the

parties have agreedthatfluctuationsshall bedealtwith by adjustment of the Contract Sum underthe Price Adjustment Formulae for Building Contracts.

lssl Clause 40 is used where the parties have agreed that fluctuations shall be dealt with by adjustment of the Contract Sum underthe Price Adjustment Formulae for Building Contracts.


~

Part 4: Settlement of disputes - adjudication - arbitration - legal proceedings

41A Adjudication Iuu.11

41A-1 Clause 41Aapplies where, pursuant to article 5, either Party refers any dispute or difference arising underthis Contract to adjudication.

Application of clause41A

ldentityof Adjudicator

41A-2 The Adjudicator to decide the dispute or difference shall be either Partiesor, on the application of either Party, an individual to be

41A.2 -2 where either Party has given notice of his intenti adjudication then

- any agreement bythe Part with the object of securing difference to, the Adjudica refer (see clause 4 lA.4. I ) ;

- any application to the nom ectof securing the to, the Adjudicator appointment of, and the re

within 7 days of the date of

icator or upon receipt bythe catorthe Partiesshall

Death of leforsomeothercauseand isthus Adjudicator - inability to adjudicate

redto himthen eitherthe Parties may

ion Agreement with the agreed or nominated

Dispute or difference - notice of intention to refer to adjudication - referral

arty of his intention to refer adjudication. If an Adjudicator Party giving the notice shall

ought and any material he wishes the Adjudicatorto consider.The referral and panying documentation shall be copied simultaneously to the other Party.

ractice Note 28 'Mediation on a Building Contract or

Iuu.1 I The time periods generally specified in this clause arethosedefined by statute. Wherethenatureofthe disputeortheworkconcerned may haveany significant effect uponthe progressorcostoftha Workssuchas works relating to the primary structural elements the Adjudicator should consider an accelerated time table for the adjudication procedures: see JCT Practice Note 2 (Series 2): Adjudication underJCT Forms.

[wl The nominators named in the Appendix have agreed with the JCTthattheywill comply with the requirements of clause 41Aon the nomination of an adjudicator including the requirement in clause 41A.2.2 forthe nomination to be madewiththeobject of securing the appointment of, and the referral of the disputeor difference to,the Adjudicatorwithin 7 daysof thedateofthenoticeof intentiontorefer;andwillonly nominate adjudicators who will enter into the 'JCT Adjudication Agreement'.

Iwwl The JCTAdjudication Agreement isavailable from the retailers of JCTForms. Aversionofthis Agreemantisalsoevailablaforuseif the Parties have namedan Adjudicator in their contract.

86 @The Joint Contracts Tribunal Limited 2003 P With 98 (9D3)

41A.4 -2

Conduct ofthe adjudication

41A.5 -1

41A-5 a 2

41A.5 -3

41A-5 -4

41A-5 -5

-5

-5

*5

*5

*5

The referral by a Party with its accompanying documentation to the Adjudicator and the copies thereof to be provided to the other Party shall be given by actual delivery or by FAXor by special delivery or recorded delivery. If given by FAX then, for record purposes, the referral and its accompanying documentation must forthwith besent by first class post or given by actual delivery. If sent by special delivery or recorded delivery the referral and its accompanying documentation shall, subject to proof to the contrary, be deemed to have been received 48 hours after the date of posting subjectto the exclusion of Sundays and any Public Holiday.

The Adjudicator shall immediately upon receipt ofthe referral and its accompanying documentation confirm the date of that receipt to the Parties.

a written statement of the contentions on which he reliesan Adjudicator to consider.

Regeneration Act 1996and not as an expert or an forthwith send that decision in writing to the Parti

been made a longer period than 28 days Adjudicatorwithin which to reach his de

The Adjudicator shall not be obliged to

d set his own procedure;

as he considers necessary in

and revising any certificate, opinion, or made underthis Contract as if no nt or notice had been issued, given or

ocumentation or in any written statement provided Its of any tests that have been made or of any

t tests or additional tests orto open up work or

e Works or any workshop where work is being or has been

as he considers necessaryfrom any employee or obtaining information from an

and advice as he considers necessary on giving prior notice to the Parties together

prior notice to that Party;

n egard to any term of this Contract relating to the payment of interest, the circumstances in which orthe period for which a simple rate of interest

P With 98 (9B3)

41A.5 -7

shalbe paid.

Any failure byeither Partyto enter into the JCTAdjudication Agreement orto comply with any requirement of the Adjudicator under clause 41A.5.5 or with any provision in or requirement under clause 41Ashall not invalidate the decision of the Adjudicator.

The Parties shall rneettheir own costs of the adjudication except that the Adjudicator may direct as to who should pay the cost of any test or opening up if required pursuant to clause 41A-5.5.4.


- ~ ~~ ~~ ~ ~-~ ~

41A.5 -8 Where any dispute or difference arises under clause 8.4.4 as to whether an instruction issued thereunder is reasonable in all thecircumstances the following provisions shall apply:

.8 -1 The Adjudicator to decide such dispute or difference shall (where practicable) be an individual with appropriate expertise and experience in the specialist area or discipline relevant to the instruction or issue in dispute.

-8 -2 Where the Adjudicator does not have the appropriate expertise and experience referred to in clause 41A.5.8-1 above the Adjudicator shall appoint an independent expert with such relevant expertise and experience to advise and report in writing on whether or not any instruction issued u n d e r c l a u s e 8 - 4 . 4 ~ a b l e in all the circumstances.

-8 .4 Notwithstanding the provisions of clause 4

s as soon as practicable.

Adjudicator'sfee is fee and reasonable and reasonable expenses - payment

proportions.

41A.6 -2 ThePartie djudicatorfor his feeand for all rsuant to the adjudication.

Effect of 41A-7 -1 The decision o Adjudicator's decision de afterthedecision of the Adjudicator has

41A.7 -2 Thepartie

41A.7 -3 lfeith ith thedecision ofthe Adjudicatortheother Partyshall to secure such compliance pending any final e or difference pursuanttoclause 41A.7.1.

Immunity for anything done or omitted in the discharge or purported as Adjudicator unless the act or omission is in bad faith and this

similarly extend to any employee or agent of the Adjudicator.

n\ Arbitra 'on

e 41 B to a Rule or Rules is a reference to the JCT 1998edition of the stry Model Arbitration Rules (CIMAR) current at the Base Date.

nt to article7Aeither Party requires a dispute or difference to be referred n then that Party shall serve on the other Party a notice of arbitration to such

ance with Rule 2.1 which states:

"Arbitral proceedings are begun in respect of a dispute when one party serves on the other a written notice of arbitration identifying the dispute and requiring him to agree to the appointment of an arbitrator";

Footnote In lThe arbitration or legal proceedings are not an appealagainstthedecision ofthe Adjudicator but area consideration of thedisputeor differenceas if no decision had been made by an Adjudicator.


418.1 -1 continued

and an arbitrator shall be an individual agreed bythe Partiesor appointed by the person named in the Appendix in accordance with Rule 2.3 which states:

"Ifthe partiesfail toagreeon the nameofanarbitratorwithin 14days(oranyagreed extension) after: (i) the notice of arbitration isserved, or (ii) a previously appointed arbitrator ceasesto hold office for any reason, either party may apply for the appointment of an arbitrator to the person so empowered."

By Rule 2.5:

"the arbitrator's appointment takes effect upon his ag appointment under Rule 2.3, whether or not his terms

41B-1 -2 Where two or more related arbitral proceedings in r separate arbitration agreements, Rules 2.6,2.7 and

41B.1 -3 After an arbitrator arbitration to the o under article7Ato thereto.

41B.2 Subjecttothe provisionsof artic to the generality of his powers, h reflects the true agreement made valuations as may in his opinion bed and to ascertain and award any su any certificate and to open up, rev requirement or notice and to det him in the same mannepqif no s

I, without prejudice

surements and/or the rights of the Parties

bject of or included in

cision, requirement or notice had been given.

41B-3 Subjectto clause 41B.4the v*Qshall be final and binding on the Parties.

41B-4 The Parties here and S. 69(2)(a) of the Arbitration Act 1996 arty and to the Arbitrator):

yquestion of lawarising in thecourseofthe

n of law arising out of an award made in an arbitration

418.4 . I apply to the c

ation Act 1996 or any amendment thereof shall apply to any act whereverthe same, or any part of it, shall beconducted. 1w1

I Arbitration Rules (CIMAR) current at the Base Date. Provided e Rulessocurrent have been issued bythe JCTafterthe Base

with the JCT 1998 edition ofthe

to the Arbitrator, state that theywish the e Rules as so amended.

applies any dispute or difference shall be determined by legal proceedings

Footnote [w] It should be noted thatthe provisionsof the Arbitration Act 1996do notextendtoScotland. Where thesiteoftheWorksissituatedinScotlandthenthe forms issued bytheScottish Building Contract

Committee which contain Scots proper law adjudication and arbitration provisions are the appropriatedocuments.The SBCC issues guidance in this respect.

P With 98 f9/03) @The Joint Contracts Tribunal Limited 2003 89

Part 5: Performance Specified Work [ z z ~

Meaning of 42.1 The term 'Performance Specified Work' means work Performance Specified Work 42.1 -1 identified in the Appendix, and

Contractots Statement

Contents of Contractor's Statement

Timefor Contractor's Statement

42.1 -2 which is to be provided by the Contractor, and

42.1 a 3 for which certain requirements have been predetermined an Contract Drawings, and

42.1 -4 in respect ofwhich the performance which the E which the Contractor, bythis Contract and subje achieve has been stated in the Contract Bills and

such Performance Specified Work

42.2 Before carrying out any Performan Architectwith a document or set of 'Contractor's Statement'. Before so p such Statementto the Pla as may have been necess Subject to the Conditions

the Planning Supervisor. rmance Specified Work in

42.3 The Contractor

Architect on the scheduled form

clude information in drawn or

uses 5.4.1 and 5.4.2.

42.4 The Contractor' rovided to the Architect:

tefor its provision given in the instruction bythe Architect on the isional sum for Performance Specified Work.

I be provided at a reasonable time before the Contractor rmance Specified Work.

Architect's notice to amend Contractoh Statement

s after receipt ofthe Contractor's Statement the Architect may, if he is of the deficient in form and/or detail adequately to explain the execution ofthe Performance Specified Work, by notice in to amend such Statement so that it is in the opinion of the of the Statement as so amended shall be provided to the

ether or not an amendment is required by the Architect, the Contractor is accordance with the Conditions for any deficiency in such Statement and for ce Specified Work to which such Statement refers.

If the Architect shall find anything in the Contractor's Statement which appears to the Architect to be a deficiency which would adversely affect the performance required by the Employerfrom the relevant Performance Specified Work, he shall immediately give notice to the Contractor specifying the deficiency. Whether or not a notice is given bythe Architect, the Contractor is responsible in accordance with the Conditions for the Performance Specified Work.

Footnote

90

[U] See Practice Note 25'Performance Specified Work' paragraphs 2~6to2~8foradescriptionofworkwhich is not to be treated as Performance Specified Work.


Definition of provisional sum for Performance specified Work

instructions ofthe Architect on other provisional sums

Preparation of Contract Bills

Provisional sum for Performance Specified Work - errors or omissionsin Contract Bills

Variations in respect of Performance Specified Work

Agreement for additional Performance Specified Work

Analysis

integration of Performance Specified Work

Compliance with Architect's instructions- Contractof s notice of injurious affection

Delay by Contractor in providing the Contractofs Statement

n

~~ ~ ~~~

42.7 A provisional sum for Performance Specified Work means a sum provided in the Contract Bills for Performance Specified Workwhere the following information has been provided in the Contract Bills:

42.7 -1 the performance which the Employer requires from such work;

42.7

42.7

-2 the location of such Performance Specified Work in the building;

-3 information relating thereto sufficient to have enabled the Contractorto have made due allowance in programming for the execution of such Performance Specified Work and for pricing all preliminary items relevantto such Performance Specified Work.

42-8 No instruction of the Architect pursuant toclause 13-3-1 on the expe sums included in the Contract Bills shall require Performance instruction on the expenditure of a provisional sum included in Performance Specified Work.

sum for Performance Specified Work such provide such information;and any such CO

ed so that it does

42.11 Subjecttoclause 42.12theArchitec rclause 13.2 requiring a Variation to Performance Specified

42.12 No instruction ofthe Architect U the Contractor of

ontractor shall provide such an d to do so by the Architect.

ons necessaryforthe integration of such the Works. The Contractor shall, subject to

clause 42.15, com

ith any instruction of the Architect pecified Work, he shall within 7 days of n writingtothe Architectsuch injurious

nreasonably delayed or withheld.

re and to the extent thatthe cause of the progress of the Works having been d or suspended is thatthe Architect has not received the Contractor's e time referred to in clause 42.4or any amendment to the Contractor's uant to clause 42.5.

or shall exercise reasonable skill and care in the provision of Performance ork provided that:

2.17 shall not beconstrued soasto affecttheobligationsoftheContractor underthis Contract in regard to the supply of workmanship, materials and goods;

in this Contract shall operate as a guarantee of fitness for purpose of the

42.17 -2 The Contractor'sobligation underclause 42.17.1 shall in no way be modified by any service in respect of any Performance Specified Work which he has obtained from others and, in particular, the Contractor shall be responsible for any such service as if such services had been undertaken bythe Contractor himself.

nce Specified Work.


Nomination excluded

42-18 Performance Specified Work pursuant to clause 42 shall not be provided by a Nominated Sub-Contractor under a Nominated Sub-Contract or by a Nominated Supplier under a contract of sale to which clause 36 refers.

92

~

@The Joint Contracts Tribunal Limited 2003 P With 98 19/03)

~ ~ ~~ ~~ ~~ --

Code of Practice: referred to in clause 8-4-4

1 This is the Code of Practice referred to in clause8-4.4. The purpose of the Code is to help in the fair and reasonable operation of the requirements of clause8.4-4.

The Architect and the Contractor should endeavour to agree the amount and method of opening up or testing but in any case in issuing his instructions Architect is required to consider the following criteria:

2

the need in the event of non-complianceto demonstrate at n either that it is unique and not likely to occur in similar elem alternatively the extent of any similar noncompliance in th constructed or still to be constructed;

failure ofworkmanship andor materialssuch tha must take place; or where the non-compliance is i

testing the extent ofwhich must depend U

the significance of the non-compliance it has occurred;

theconsequence of any similar on users, adjoining property, th

the level and stan

the relevant reco resulting from the supe

of the building, its effect

e Works by the Contractor;

relevant of any sub-contractor ed to in paragraph 2.5above or

/7\\ otherwise;

bya responsible bodywhich are

W the r n son forthe n-comdiance when this has been established:

Contractor has obtained in respect of the non-complying

sive testing in establishing whether any similar non-

available, the time required for and the consequential

s of the Contractor;


Appendix

Clause etc. Subject

15.2

17.2

Fourth recital and31

Construction Industry Scheme (CIS) Employer at the Base Date *is a 'contractoffis not a 'contractor'

Fifth recital CDM Regulations

Articles 7A and 78 41 B disputes 41 C

Dispute or difference - settlement of

1 *3 Base Date

1 e 3 Date for Completion

1.1 1 Electronic data interchange tal Provisionsfor EDI

reementto which the

e European Model EDI Agreement

19-1-2

21-1.1

Footnotes w 'Delete as applicable. laaal Iftheindemnityisto beforanaggregateamount and not forany oneoccurrenceorseries of occurrences the entryshould make thisclear. IxlClause 1AcanonIyapplywheretheContractoris

satisfiedatthedatetheContract isentered intothat his outputtaxonallsuppliesto theEmployerunderthe Contractwill beateithera positiveorazerorateoftax.

Clause 1AoftheVATAgreement *applies/does not apply 1x1

Clause 19.1.2 *applies/does not apply

r L

Insurance *may be required/is not required

Amount of indemnity for any one occurrence or series of occurrences arising out of one event

f Ieeal

This footnote repeats footnoteIxl forclause 152.

@The Joint Contracts Tribune1 Limited 2003

Clause etc.

22.1

*22A, 22B-1.22C-2

22A.3.1

22D

220.2

22FC.1

22FC.5

23.1.1

23*1-2,25-4.13,26.1

24.2

28.2-2

28A.1.1.1 to 28A-

~~

Subject

Insurance of the Works - alternative clauses

Percentage to cover professional fees

Annual renewal date of insurance as supplied by Contractor

Insurance for Employer's loss of liquidated damages - clause 25.4-3

Joint Fire Code

*Clause 22NClause 22B/Clause 22C applies (See footnote Iccl to clause 22)

Insurance *may be requiredh

Period of time -4K-

A applies theseentries are tion supplied bythe

any, of compliance with

Date of Possession

Clause23.1.2 *applies/does not apply

Period of deferment if it is to be less than 6 weeks is

at the rate of

f Per

28A-1-

Footnote 'Delete as applicable.


Clause etc.

30.1 -1.6

Subject

Advance payment Clause30-1-1-6 *applies/does not apply

If applicable: the advance payment will be

**r I

30-1.3

30-2-1 -1

30.3.1

% of the Contract Sum

Dates of issue of Int (if none stated, Inter issued at intervals n one month up to th

thereafter and th is to be issued wi

d thereafter on the same date in each month adjusted to the nearest working day in that month laaa.11

Gross valuation A priced Activity Schedule *is/is not attached to this Appendix

*For uniquely identified listed itemsa bond as referred to in clause 30-3.1 in respect of payment for such items is required for

*Delete if no bond is required

*For listed items that are not uniquely identified a bond as referred to in clause 30.3-2 in respect of paymentfor such items is required for

30-3-2

*Delete if clause 30.3.2 does not apply

Footnotes , *Deleteasapplicable. [aaal1Thefirstdateshouldnotbemorethanonemonth afterthe Date of Possession. Where it is intended that Interim Certificates be issuedon the last day ofeach monthconsider inserting "the lastdayof- linsefirnonthlandthereafterthe last day in each month adjusted to thenearestworking day in the month:

**Insert either a money amount ora percentage figure and delete the other alternative.

96 @The Joint Contracts Tribunal Limited 2003 P With 98 19/03]

Clause etc.

30.4.1.1

30-4A

30.4A.2

35.2

37

38.7 or 39.8

40- 1 - 1 -1

41A-2

418.1

Subject

Retention Percentage (if less than 5 percent) Ibbbl

Contractor's bond in lieu of Retention

Work reserved for Nominated Sub- Contractors for which the contractor desires to tender

Clause 30-4A +applies/does not apply

If clause 30.4A applies:

clause 2 of the bond maximum a g g r e g a t a

ffl clause G(ii i1 oft bond the expiry date is \ \

Fluctuations: (if alternative required is not shown clause 38shall apply)

Percentage addition

Formula Rules

20

Adjudication - no (if no nominator is shall be the Presid

'Part I/Part 11 Idddl of Section 2 of the Formula Rules is to apply

President or a Vice-President or Chairman or aVice-Chairman: "Royal Institute of British Architects "Royal Institution of Chartered Surveyors "Construction Confederation "National Specialist Contractors Council

"Deleteall butone

President or a Vice-?resident: "Royal Institute of British Architects "Royal Institution of Chartered Surveyors "Chartered Institute of Arbitrators

"Delete all but one

Identify below or on a separate sheet each item of Performance Specified Work to be provided by the Contractorand insertthe relevant reference in the Contract Bills in1

[zzl See Practice Note 25'Performance Specified Work' paragraphs 2.6 to24fora description ofworkwhich is notto betreatedasPerformance Specified Work.

ThisfootnoterepeetsftnoteIztl forclause 42.

Footnotes bzLlT&e;:;;g will be 5 per cent unless a lower

Icccl Delete alternatives not used.

IdddlStrikeoutaccordingtowhich method offormula adiustment(Part1- WorkCategoly Methodor Part ll - Work Group Method) has been stated in the documents issued to tenderers.


Annex 1 to Appendix: Terms of Bonds agreed by the JCT and the British Bankers' Association

See clause 30.1.1 -6 "Advance Payment Bond", and

clause 30-3: "Bond in respect of payment for off-site materials and/or goods"

Advance Payment Bond

1 THE parties to this Bond are:

whose registered office is at

('the Surety'), and

2 The Employer a ('the Contractor')

r building works ('the Works') at

o pay the Contractor the sum of [ . I as an advance

toyershall in making any demand providetotheSuretyacompleted notice of in the form oftheschedule attached hereto which shall be accepted as

evidence for all purposes underthis Bond.The signatures on any such ust be authenticated bythe Employer's bankers.

c) The Surety shall within 5 Business Daysafter receiving the demand payto the Employer the sum so demanded. 'Business Day' means the day (otherthan a Saturday or a Sunday) on which commercial banks are open for business in London.

4 Payments due under this Bond shall be made notwithstanding any dispute between the Employer and the Contractor and whether or notthe Employer and the Contractor are or might be under any liabilityone to the other. Payment by the Surety under this Bond shall be deemed a valid paymentfor all purposesof this Bond and shall discharge thesuretyfrom liability to the extent of such payment.

@The Joint Contracts Tribunal Limited 2003 P With 98 (9/03) 98

5 The Surety consents and agrees thatthe following actions by the Employer may be made and done without notice to or consent of the Suretyand without in any way affecting changing or releasing the Suretyfrom its obligations underthis Bond and the liability of the Surety hereunder shall not in anyway be affected hereby.Theactions are:

(a) waiver by the Employer of any of the terms, provisions, conditions, obligations and agreements of the Contractor or any failure to make demand upon ortake action against the Contractor;

(b) any modification or changes to the Contract; and/or

6 The Surety's maximum aggregate liability underthis Bond wh payment ofthe Advance Payment bythe Employerto the Cont [ 1 which sum shall be reduced by the am the Contractor to the Employer as advised by the Emp

The obligations of the Surety and under this Bond sh O f

(a) the date on which the Advance Payme Surety bythe Employer;

7 ever is the earliest

(b) thedateon which the Advance of is repaid to the Employer mployer) or bythe Surety;

and

(c) [longstop dare

and any claims here earliest date.

9 Notwithstanding ofthis Bond nothing in this Bond confers or purports terms on any person who is not a party to it.

reof this Bond has been executed as a Deed by the Surety and delivered on

for and on behalf of the Surety:

EXECUTED as a Deed by: I

for and on behalf ofthe Employer:

I Date:

@The Joint Contracts Tribunal Limited 2003 P With 98 19/03} 99

Schedule to Advance Payment Bond (clause 3fbl of the Bond)

Notice of Demand

Date of Notice:

The Bond has come into effect.

We hereby demand payment of the sum of

f which does not exceed theamou the date of this notice.

Address for payment

ho are authorised by the Employer to act for

Official Position:

The above signatures to be authenticated by the Employer's bankers CY


- -

P With 98 (9/031

~~

Bond in respect of payment for off-site materials and/or goods

THE parties to this Bond are:

n whose registered office is at /

('the Employer'). / \

The Employer and ('the Contractor')

orks ('the Works')

e amount stated as due in Interim Certificates by the Employer the value of those materials or

usion in the Works which have been listed bythe

period commencing with the transfer of the property in the items they are delivered to or adjacent to the Works; and

sively relate to the amount paid to the Contractor in respect of the have not been delivered to or adiacent to the Works.

shall in making any demand provide to the Surety a Notice of Demand in the hereto which shall be accepted as conclusive evidence for all signatures on any such demand must be authenticated by the

5 Business Days after receiving the demand payto the Employerthe Day' means the day (otherthan a Saturday or a Sunday) on

hich commercial banks are open for business in London.

Paymentsdue underthis Bond shall be made notwithstanding any dispute between the Employer and the Contractor and whether or not the Employer and the Contractor are or might be under any liability one tothe other. Payment bythe Surety underthis Bond shall be deemed a valid payment for all purposes of this Bond and shall discharge the Surety from liability to the extent of such payment.


~~

7

8

9

10

11

12

The Surety consents and agrees that the following actions bythe Employer may be made and donewithout notice to orconsentoftheSuretyand without in anyway affecting changing or releasing the Surety from its obligations under this Bond and the liability of the Surety hereunder shall not in any way be affected hereby. The actions are:

(a) waiver by the Employer of any of the terms, provisions, conditions, obligations and agreements of the Contractor or any failure to make demand upon ortake action against the Contractor;

(b) any modification orchanges totheContract;and/or

(c) the granting of an extension of time to the clause 9(b) below.

terms of

The Surety's maximum aggregate liability

The obligations ofthe Surety

(a) the date on which all the certified in writing to the Surety

(b) [longstop dare to be given],

and any claims hereunder must be received m w o r the Sur beforesuch earlier date.

The Bond is not transferable orassi Such written consentwill not be U

en consent of the Surety.

Notwithstanding a toconferanyrightt

Bond confers or purports person who is not a party to it.

This Bond shall be go accordance with the laws of England and Wales.

eof this Bond has been executed as a Deed by the Surety and delivered on

for and on behalf of the Surety:

EXECUTED as a Deed by:

for and on behalf of the Employer:


Schedule to Bond (clause 4 of the Bond)

Notice of Demand

Date of Notice:

due in an Interim Certificate(s1for pay the Employer but such listed items ha

Address for payment:

who are authorised by the Employerto act for

atures to be authenticated by the Employer's bankers I

P Wirh 98 (9/03)

~~


Supplemental Provisions (the VAT Agreement)

Interim payments - additionofVAT

Alternative provisions to clauses 1.1 to 1-2-2 inclusive

Written assessment by Contractor

1

1, '1

1 A.2

1A-3

1A-4

1.1

The following are the supplemental provisions (the VAT Agreement) referred to in clause 15.1 of the Conditions:

The Employer shall pay to the Contractor in the manner hereinafter set out any tax properly chargeable by the Commissioners on the Contractor on the supply to the Employer of any goods and services by the Contractor under this Contract. under this Contract are supplies under a contract providin supplies within the meaning of Regulation 93 ofthevalue any amendment or re-enactment thereof.

Where it is stated in the Appendix pursuant to clause 15.2 of the this Agreement appliesclauses 1-1 to 1.2.2 inclusive hereof sha any notice issued under clause 1A-4 hereof becomeseffec to give the written notice required under clause 1A 1-3toEofthisAgreement remain infullforceande

Final Certificate are to be issued. If the rate

send to the Employer, with a copy tot given in his written notice and that no

the Commissioners aforesaid written no

t the rate given in the notice) shall be shown on

the Contractorto the f certificates set out in clause

ay give written notice to the other, with a copy to the edateofthe noticeclause 1Ashall no longerapply.

s 1.1 to 1-2.2 inclusive hereof shall apply in place of

chargea e, at the relevant time of supply under Regulation 930f the Value Added Ta egu ions 1995 on the Contractor at

m x t e g o r y ( i ) ) and

te ratesoftaxotherthanzero(Category (ii)).

hall also specify the rate or rates of tax which are chargeable on those d in Category (ii), and shall state the grounds on which he considers such hargeable.

t of such written provisional assessmentthe Employer, unless he has reasonable grounds for objection to that assessment, shall calculate the amount of tax due by applying the rate or rates of tax specified bythe Contractor to the amount ofthe assessed value of those supplies included in Category (ii) of such assessment, and remit the calculated amount of such tax, together with the amount of the Certificate issued by the Architect, to the Contractor within the period for payment of certificates set out in clause 30-1-1.1 of the Conditions.


~~

1-2 -2 If the Employer has reasonable grounds for objection to the provisional assessment he shall within 3 working days of receipt of that assessment so notifythe Contractor in writing setting out thosegrounds. The Contractor shall within 3 working days of receipt of the written notification of the Employer reply in writing to the Employereitherthat he withdraws the assessment in which case the Employer is released from his obligation under clause 1.2-1 of this Agreement orthat he confirms the assessment. lfthe Contractor so confirms then the Contractor may treat any amount received from the Employer in respect of the value which the Contractor has stated to be chargeable on him at a rate or rates of tax otherthan zero as being inclusive of tax and issue an authenticated receipt under clause 1.4 of this Agreement.

Written final statement - VAT liabilityof Contractor - recovery from Employer

1.3 -1 Where clause 1A is operated clause 1.3 only applies if no amo clause 1A-3 has been shown on the Final Certificate issued by issue of the Certificate of Completion of Making Good Defe Conditions the Contractor shall as soon as hecan finally final statement of the respective values of all supplies of certificates have been orwill be issued which are chargea

-1 -1 azerorateoftax(Category(i))and

.I -2 any rate or rates of tax

and shall issuesuch final statement to the Employ

The Contractor shall also

issued.

oyershall, subject toclause3ofthis applying the rate or rates of tax

s included in Category (ii) of the taxalready received bythe

all pay the balance of such tax to the

1.3 .4 IftheEm mount oftaxspecified inthe final statement as of taxcalculated under clause 1.3.3 ofthis he Contractorwho shall refund such excess to the notification, together with a receipt under

Contractor to paid under certificates ofthe Architect and anytax properly issue receipt as tax invoice

aining the particulars required under Regulation 14 of the ny amendment or re-enactment thereof to be contained in a tax

sobliged to make payment under clause 1.2 or 1*3ofthisAgreement, rclause 24of the Conditions to deduct any sum calculated at the rate

om sumsdue or to become

use 1.2 or 1-3ofthisAgreement.

e Contractor when ascertaining the respective values of any supplies of goods and servicesforwhich certificates have been orwill be issued underthe Conditions in orderto preparethe final statement referred to in clause 1-3ofthisAgreement shall disregard when stating such values any deduction by the Employer of any sum calculated atthe rate stated in the Appendix as liquidated and ascertained damages under clause 24 of the Conditions.

P With 98 f9/03) @The Joint Contracts Tribunal Limited 2003 105

Employers' right to challenge tax claimed by Contractor

Discharged Employer from liabilii to pay tax tothe Contractor I

Awards in dispute procedures

Arbitration provision excluded

E m o l a

~

2.3

3.1

3.2

3.3

4

5

Where clause I Ais operated the Employer shall pay the tax to which that clause refers notwithstanding any deduction which the Employer may be empowered to make under clause24 of the Conditions from the amount certified by the Architect in an Interim Certificate or from any balance certified bythe Architect as due to the Contractor under the Final Certificate.

If the Employer disagrees with the final statement issued by the Contractor under clause 1.3 of this Agreement he may but before any payment or refund becomes due under clause 1.3.3 or 1.3.4 of this Agreement request the Contractor to obtain the decision of the Commissioners on the tax properly chargeable on the Contractor for all supplies of goods and services under this Contract and the Contractor shall forthwith request the Commissionersforsuch decision. lfthe Employer disagree provided the Employer indemnifies and at the option of the Contractor against all costs and other expenses, the Contractor instructions oftheEmployer makeall such appealsagainst

Where, before any appeal from the amountofthetaxallegedto becha services under theconditions mus

obligation.

such decision to appeal) the Employer or in accordance with such

II payor refund to the other overpaid, as the case may

he Employer from the Contractor, 1-3-4 ofthis Agreement orwhere

clause 1Aofthis

accordance with t refund underclau dischargedfrom any

any resultant payment or

ontractor.under.thls Contractthe amount of any .payment by the Employerto the Contractor or by the

Contractortuth

ontractorto the Employer underthis Contract or is an amount w e e n so certified but was not socertified, the provisions of this

Agreem t shall so far as relevant and applicable apply to any such payments.

a n t . Ttiepr visi sofarticle7Ashall notapplytoanymattersto bedealtwith underclause3of

anding any provisions to the contrary elsewhere in the Conditions the Employer Notw'

-1 the Employer can show that he requires such receipt tovalidate any claim for credit for tax paid or payable under this Agreementwhich the Employer is entitled to make to the Commissioners, and .


7 -2 the Employer has

paid tax in accordance with the provisional assessment of the Contractor under clause 1 of this Agreement unless he has sustained a reasonable objection under clause 1.2 of this Agreement; or

paid tax in accordancewith clause 1AofthisAgreement.

VAT on determination


Annex 2 to the Conditions: Supplemental Provisions for EDI (clausel-11)

The following are the Supplemental Provisions for EDI referred to in clause 1-1 1 of the Conditions.

1 The Parties no later than when there is a binding contract between the Employer and the Contractor shall have entered intothe Electronic Data Interchange Agreement identified in the Appendix ('theEDI Agreem underthis Contract subject to thefollowing:

.1 except where expressly provided for in these provisions Agreement shall override or modifythe application or in

-2 thetypes and classes of co Data') and the persons between whom the Data Contract Documents or as subsequently agreed

-3 the Adopted ProtocolEDI Message Standards echnical Annex* are as stated in the Contract Documents or ass the Parties;

-4 where the Contract Docu nication to which the EDI Agreement applies to be in accordance with the EDI Agree writing in accordance with

shall not be valid unless in

-4 .I anydeterminationofth

.4 -2 any of his obligations under this

-4 -3 the Final Certific

ures applicable underthis Contractto the

Parties amending the Conditions or these provisions.

Contract to the resolution of disputes or differences concerning these provisions or the exchange of any dispute resolution provisions in the EDI Agreement

Footnote

108

The EDI Association Standard EDI Agreement refers to an Adopted Protocol and User Manua1;theEuropean Model EDI Agreement refers to EDI Message Standards and eTechnicel Annex. Delete whichever is not epplicable.

@The Joint Contracts Tribunal Limited 2003 P With 98 (9m3)

See Note 1

Annex 3 to the Conditions: Bond in lieu of Retention

BOND dated the day of 20

See Note 2

1 By a building contract ('the Contract') be

(hereinafter called the 'Contractor')

exercise his right under the Contract to deduct rim Certificates provided the Contractor has taken Retention from a

out this Bond in f

ployer in the maximum aggregate sum of

(figures and words)

all, on a demand which complies with the requirements in clause 4, be

P With 98 (9#3) @The Joint Contracts Tribunal Limited 2003 109

4 Any demand by the Employer under clause 3shall:

(i) be inwriting addressed totheSuretyatitsofficeat

refer to this Bond, and with the signature(s) therein authenticated by the Employer's bankers; and

(ii) state the amount of the Retention thatwould have been held by the Employer at the date of the demand had Retention been deductible; and

(iii) state the amount demanded, which shall not exceed the amo clause 4(ii), and identify for which one or more of the follow demanded:

(a) the costs actually incurred by the Employer by reas

accompanied by a statement by the Architec Contractor has occurred;

he Contractor is due

ue and which certifies contractual Completion thatthe Contractor has fai

used to the Employer as a result of actor bythe Employer;

e Contractor has been given 14days'written notice of hereunder by the Employer and that the

and that a copy of this notice has atthe same

See Note 3 hall, for the purposes of this Bond but not further or otherwise, be at the amount demanded is properly due

gned or otherwise transferred with the benefit ofthis Bond, the to assign or transfer this Bond only with the prior written consent

ent notto be unreasonably delayed or withheld.

ce of a prior written demand made, shall be released from its liability e earliest occurrence of either

(i) the date of issue underthe Contract ofthe Certificate of Completion of Making Good

(ii) satisfaction of a demand(s) uptothe maximum aggregate underthe Bond;or

See Note 4 (iii) (insertcalendar date).


7 Any demand made hereunder must be received by the Surety accompanied bytha documents as required by clause 4 aboveon or before the earliest occurrence as stated above, when this Bond will terminate and become of no further effect whatsoever.

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

9 This Bond shall be governed and construed in accordance with the laws of England and Wales.

IN WITNESS hereof this B the date below:


for and on behalf ofthe Surety:


for and on behalf of the Emp

Date:

Oci\\v

Notes

These Notes will not 1 appear on the Bond issued by the Surety.

e British Bankers' Association and the Surety ibunal understands that a Bond which embodies

iscretion, available to Contractors where the ton the Standard Form of Building Contract

n, incorporating Amendments 1 to ,the optional clause

be inserted here is the amount stated in the Appendixpursuantto clause 30-4A.2. It is hata Suretywil1,atadditionalcosttotheContractor. andwhich may besubjecttoother

ety, provide for a greater sum than that stated in clause2 if, due to een applicable, that amountwould have increased.The reduction by

aggregate sum at the date of issue of the next Interim Certificate after Practical a similar reduction had Retention been applicable.

inclause4ofthewords "but notfurtherorotherwise"isto makeclearthatthe uld not be prevented bythetermsofclause 4from alleging, undertheContract,that

honanyofthemattersstated inclause4(iii)(a)to(e).

Any demand by the Employer under clause 4 of this Bond must not exceed the costs actually incurred bytheEmployerandisnotto beinexcessoftheamountstated inclause4(ii).

TheSuretyrequiresan actualexpirydateor(ifear1ier) adatethatiscapableof being ascertainedon the face of the Bond. Where this is not possible, alternative terms should be discussed with the Surety.

4


~~~

111

~

Private With Quantities

This reprint incorporates the following amendments.

A Amendmentl.Junel999 7. aausezc ConmuctlonlnQstrvScheme newcleuses22C.lAend22Q5 lclsl inserted (incorporatedSeptember2000) 8. Clause2w:

clause22FC3 emended clause22FC~4delated

1. Resireh clause 22FCa5emended Fourth recital amended 9. Clause3DbA

2. &use30 clause304A.l amended newclause30.4Ainserted 10. Clause31

3. a-31 clauses31~10end31~11 amended redrafted footnote 1 ~ 2 1 inserted

11. clause35 4. Appendix entry on Fourth recitalamended

12. Appendhr clause351 emended

newemryonUFC5inserted

B Amdmanl2,JenueryZOOO Sundryamendmenta (incorporetedSeptember200) E

1. clsusel~l2

2. clause30

3. ClausedlA

new cleuse inserted

clause30.1*3 amended

clause 41A.5.52 emended newclause 41A58 inserted newfoomote luwllinserted

entryon301.3 amended newfootnote lwll inserted entryon 41A.2emended

4. Appendbc

H AmendmenlS.JulyZOC3 Consbu*ion Skllla CertiRsatlon sch0nle (incorporated Septembar2003I

1. aeusee cleuse 81.4 renumbered asclause

newclause81~4 inserted

mendedfor'Joint Fire

3. Clause135 clauses 13533end 13564

4. Clause22.2 amended, end definitions inserted for 'terrorism' end 'terrorism cover'

5. clause22A newclause22A.5 inserted

6. Clause22B newclause 228.4 inserted

112 @The Joint Contracts Tribunal Limited 2003 P With 98 (91031

For works which are to be carried out in Northern Ireland the Adaptation Schedule for use with this form of contract is available from the Royal Society of Ulster Architects, 2 Mount Charles, Belfast ET7 INZ.

Dated ,. ::.

Standard Form of Building Contract 1998 Edition

1: 1999 2:2000 3:200?

Private With Quantities incorporating Amendments

‘{I

U

9 Published for the JCT by RI 1-3 Dufferin Street, Londo

Issued by The Joint Contracts Tribunal Limited

Members Association of Consulting Engineers Limited British Property Federation Limited Construction Confederation Local Government Association National Specialist Contractors Council Limited Royal Institute of British Architects The Royal Institution of Chartered Surveyors The Scottish Building Contract Committee