ARTICLES OF AGREEMENT

AND
CONDITIONS OF CONTRACT
(Applicable only where QUANTITIES FORM PART of the Contract)
FIFTH EDITION (1988)

(As published by the Government of Ghana)

ARTICLES OF AGREEMENT made the ...... day of ......2004

BETWEEN...................................................................

(hereinafter

called

the

"Employer")

acting

by

their

agent

.......
......
(being the .................... ................................................ of the
one part and ........ ...................................
of (whose Registered Office is situated at).......
(hereinafter called "the Contractor") of the other part.
WHEREAS the Employer is desirous to construct....
.............................................................................
(hereinafter called the "Works") at ......................................... in Ghana and has caused
Drawings and Bills of Quantities showing and describing the work to be done to be prepared.
AND WHEREAS the said drawings numbered .....
...................................................................................................
(hereinafter called the Contract Drawings) and a fully priced copy of the said Bills of Quantities have been
signed by or on behalf of the parties hereto:NOW IT IS HEREBY AGREED AS FOLLOWS:1.

For the consideration hereinafter mentioned the Contractor will upon and subject to the conditions
annexed hereto execute and complete the Works shown on the said Drawings and described by or
referred to in the said Bills of Quantities and Conditions.

2.

The Employer will pay to the Contractor the sum of ................

.........................................................................
..............................................(.....................)
(hereinafter referred to as "the Contract Sum") or such other sum as shall become payable hereunder
at the times and in the manner specified in the said Conditions.

IN WITNESS whereof the parties hereto have hereunto set their hands the day and year first written herein.

.................................
For and on behalf of client

In the presence of .............

Name ............................
Address ...........................
Description......................

..
By or for and on behalf of the Contractor
Name of Signatory..............
Description.............................

In the presence of...................

Name.................................
Address................................
Description..............................

THE CONDITIONS HEREINBEFORE REFERRED TO:

1.

Definition of Terms
The terms herein below set forth wherever used in this Schedule of Conditions of Contract or in the
Bills of Quantities hereto annexed shall have the meaning set forth severally against them.
a.

"Employer means..

b.

"Contractor" means the person or persons, partnership, firm or company who has or have
signed this contract and included his or their heirs, executors, assigns, and successors and
duly appointed representatives.

c.

"Consultant"
means.or such other
person appointed from time to time by the Employer or by the Consultant and notified in
writing to the Contractor to act in that capacity or under him as his appointed representative
to exercise any of his functions under the provisions of the contract.

d.

"Supervising Officer" means the Project Architect or his representative, the Clerk of Works
appointed from time to time by the Employer or by the Consultant to watch and supervise
the execution, completion and maintenance of the Works and to test and examine any
materials to be used or workmanship employed in connection with the Works.

e.

Works" shall mean all or any portion of the work, materials and articles to be used in the
execution of this contract.

f.

"Site" means the land set apart and made available to the Contractor by the
Employer upon which the Works under this Contract are to be executed.

g.

"Drawings" means the drawings referred to and enumerated in the ARTICLES OF

AGREEMENT and all supplementary drawings which the Consultant may from time to
time issue to the Contractor.

h.

"Extra Work" means any work not included in this contract as shown on the
Drawings or described in the Bills of Quantities or reasonably to be implied there
from which the Consultant may direct the Contractor to execute during the
performance of this Contract.

i.

"Approved" means approved in writing by the Consultant.

j.

"Directed" means directed in writing by the Consultant.

Consultant's Instructions
1.

The Contractor shall carry out and complete the Works comprised in this Contract in every
respect in accordance with the directions and to the reasonable satisfaction of the
Consultant.

2.

If the Contractor shall find any discrepancy in or divergence between the Contract

Drawings and/or Bills of Quantities he shall immediately refer the same in writing to
the Consultant specifying the discrepancy or divergence and the Consultant shall
written instructions in regard thereto.

issue
3.

3.

The Consultant may in his absolute discretion and from time to time issue further drawings,
details and/or written instructions (all of which are in these "Conditions
collectively referred to as "Consultant's instructions") in regard to:a.

The variation or modification of the design, quality or quantity of the Works or the
addition or omission or substitution of any work.

b.

Any discrepancy in or divergence between the Contract Drawings and/or Bills of

Quantities.

c.

The removal from the site of any materials brought thereon by the Contractor and
the substitution of any other materials thereof.

d.

The removal and/or re-execution of any works executed by the Contractor.

e.

The postponement of any work to be executed under the provisions of this contract.

f.

The dismissal from the works of any person employed thereupon.

g.

The opening up for inspection of any work covered up.

h.

The amending and making good of any defects under Clause 13 of these
Conditions.

4.

All instructions issued by the Consultant shall be issued in writing. If any verbal
instructions, directions or explanations involving a variation are given to the Contractor or
his agent or foreman upon the works by the Consultant, such instructions, directions or
explanations shall be confirmed in writing by the Contractor to the Consultant within seven
days, and if not dissented from in writing by the Consultant to the Contractor within a
further seven days shall be deemed to be Consultant's Instructions. The Contractor shall
forthwith comply with all Consultants instructions.
If compliance with Consultants Instructions involves any variation, such variation shall be
dealt with under clause 10 of these conditions and the value thereof shall be added to or
deducted fro the Contract Sum.

5.

If compliance with Consultant's Instructions involves the Contractor in loss or expense

beyond that provided for in or reasonably contemplated by this contract, then, unless such
instructions were issued by reason of some breach of this Contract by the Contractor, the
amount
of
such
loss
of
expense
shall
be
ascertained
by
the Consultant and shall be added to the Contract Sum.

If within seven days after receipt of a written notice from the Consultant requiring
compliance with Consultant's Instructions the Contractor does not comply therewith, the
Employer may employ and pay other persons to execute any work whatsoever which
may be necessary to give effect to such instructions and all costs incurred in
connection
therewith shall be recoverable from the Contractor by the Employer as a
debt or may be
deducted by them from any monies due or to become due to the
Contractor under this
contract.

Drawings and Bills of Quantities, etc.

The Contract Drawings and the Priced Bills of Quantities shall remain in the custody of the
Consultant so as to be available at all reasonable times for the inspection of the Employer or the
12

Contractor. The Consultant without charge to the Contractor shall on the signing of this Contract
furnish him with two copies of the Contract Drawings and two blank Bills of Quantities and one copy
of the priced Bills of Quantities and shall within a reasonable time also furnish him with such further
drawings as are reasonably necessary to enable him to carry out all Consultant's Instructions and
with any further details which in the opinion of the Consultant are necessary for the execution of
any part of the work. The Contractor shall also be entitled to receive from the Consultant without
charge on or before the signing of this contract two copies of the Specification for use in carrying
out the Works, but nothing contained therein shall impose upon the Contractor any obligations
beyond those imposed by the contract documents, namely, by the Contract Drawings, Bills of
Quantities and Conditions referred to in the Articles of Agreement. The Contractor shall keep one
copy of the Contract Drawings, blank Bills of Quantities and Specification on the Works so as to be
available to the Consultant at all reasonable times. Upon receiving final payment the Contractor
shall forthwith return to the Consultant all drawings and Specifications so supplied.
4.

5.

Statutory Obligations, Notices and Fees

1.

The Contractor shall comply with and give all notices required by any Act of Parliament,
customary rite, or any regulation or bye-law of any local or other statutory authority who
have any jurisdiction with regard to the Works or with whose system the same are or will
be connected, and he shall pay and indemnity the Employer against any fees or charges,
rates or taxes legally demandable under such Act of Parliament, Customary rite, regulation
or bye-law in respect of the Works provided that the said fees and charges, rates or taxes if
not expressly provided for in the Bills of Quantities shall be added to the Contract Sum.

2.

The Contractor before making any variation from the Contract Drawings or Bills of
Quantities necessitated by such compliance shall give to the Consultant written notice
specifying and giving the reason for such variation and applying for instructions in reference
thereto.

3.

If the Contractor within seven days of having applied for the same does not receive such
instructions, he shall proceed with the work conforming to the provisions, regulation or byelaw in question and any variation thereby necessitated shall be deemed to be a variation
under Clause 10 of these Conditions.

Setting Out of Works

The Consultant shall determine any levels required for the execution of the works and shall furnish
to the Contractor, either by way of carefully dimensioned drawings or by supervision at the time of
setting out the Works, such information as shall enable the Contractor to set out the enclosing walls
of the building at ground level, after which the Contractor shall be responsible and shall at his own
cost amend any errors arising from his own inaccurate setting out unless the Consultant shall
otherwise direct.

6.

Materials and Workmanship to Conform to Description

1.

All materials and workmanship shall, unless the Consultant shall otherwise direct in writing,
be of the respective kinds and standards described in the Bills of Quantities.

2.

The Contractor shall upon the request of the Consultant furnish him with vouchers to prove
that the materials comply with the requirements of sub-clause (1) of this Condition.

3.

The Consultant may issue instructions requiring the Contractor to 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 up or testing and the cost of making good in consequence thereof shall be
13

added to the Contract Sum unless provided for in the Bills of Quantities or unless the
inspection or test shows that the work, materials or goods are not in accordance with this
Contract.
4.

7.

All royalties or other sums payable in respect of the supply and use in carrying out the
Works of any patented articles, processes or inventions mentioned in the Bills of Quantities
shall be deemed to have been included in the Contract Sum, and the Contractor shall
indemnify the Employer from and against all claims, proceedings, damages, costs and
expenses which may be brought or made against the Employer or to which he may be put,
including any payment made in respect of proceedings under the State Proceedings Act,
1961, or any Statutory modification or re-enactment thereof from time to time, and
including also any ex-gratia payment made by the Employer in circumstances in which an
action, though not maintainable against the Employer, would have been maintainable
against a private party, by reason of the Contractor infringing or being held to have
infringed any patent rights in relation to such articles, processes or inventions. Provided
that where in compliance with Consultant's Instructions the Contractor shall supply and use
in carrying out the works any patented articles, processes or inventions not specifically
mentioned in the Bills of Quantities, the contractor shall not be liable in respect of any
infringement of any patent rights in relation to any such articles, processes and inventions
and all royalties, damages or other monies which the Contractor may be liable to pay the
persons entitled to such patent rights shall be added to the Contract Sum.

Agent or Foreman-in-Charge
The Contractor shall constantly keep upon the Works a competent Agent or foreman-in-charge and
any instructions given to him by the Consultant shall be deemed to be given to the Contractor in
pursuance of Clause 2 of these Conditions.

8.

Access for Consultant to Works

The Consultant and his representatives shall at all reasonable times have access to the Works and
to the workshops or other places of the Contractor where work is being prepared for the contract,
and in so far as work in virtue of any sub-contract is to be so prepared in workshops or other
places of a Sub-Contractor (whether or not a nominated Sub-Contractor as defined in Clause 22 of
these Conditions) the Contractor shall also be a term in the sub-contract secure a similar right of
access to those workshops or places for the Consultant and his representative and shall do all things
reasonably necessary to make such right effective.

9.

Assignment and Sub-letting

The Contractor shall not assign this contract or any part thereof without the prior written consent of
the Employer. The Contractor shall not sub-let any part of the Works without the prior written
consent of the Consultant and such consent if given shall not relieve the Contractor from any liability
or obligation under the contract and he shall be responsible for the acts, defaults and neglects of
any Sub-Contractor, his agents, servants or workmen as fully as if they were the acts, defaults or
neglects of the Contractor, his agents, servants or workmen.

10.

Ascertainment of Prices for Variations

No variation shall vitiate this contract. All variations authorized by the Consultant or subsequently
sanctioned by him in writing shall be measured and valued by the Consultant who shall give the
Contractor the opportunity of being present at the time of such measurement and of taking such
notes and measurements as the Contractor may require. The Contractor shall be supplied with a
copy of the priced Bills of Variations and the valuation thereof unless previously or otherwise agreed
14

shall be made in accordance with the following rules:

a.

The prices in the Bills of Quantities mentioned in Clause 3 of these Conditions shall
determine the valuation of extra work of similar character executed under similar conditions
as work priced therein;

b.

The said prices, where extra work is not of a similar character or executed under similar
conditions as aforesaid, shall be the basis of prices for the same so far as may be
reasonable, failing which a fair valuation thereof shall be made by the Consultant;

c.

The prices in the above-mentioned Bills of Quantities shall determine the valuation of items
omitted, provided that if omissions substantially vary the conditions under which any
remaining items of work are carried out the prices for such remaining items shall be valued
under rule (b) of this Clause;

d.

Where in the opinion of the Consultant the value of extra work cannot properly be
ascertained by measurement the Contractor shall be allowed day-work prices at the rates, if
any, inserted in the Bills of Quantities or, if no such rates have been inserted, at the
Standard Government rates of wages and the net cost of materials delivered to site with the
addition of such allowances for the use of plant and for supervision, overheads and profit as
the Consultant considers reasonable. Provided that in any case vouchers specifying the
time daily spent upon the work and the materials employed shall be delivered to the
Consultant or Supervising Officer not later than the end of the week following that in which
the work has been executed.

The measurement and valuation of the Works shall be completed within the period of Final
Measurement stated in the appendix and if no other period is so stated than within six months from
the time when, in the opinion of the Consultant, practical completion of the Works has been
reached, and effect shall be given to the measurement and valuation of variations in Interim
Certificates and by adjustment of the Contract Sum.
11.

12.

Bills of Quantities
1.

The quality and quantity of the work included in the Contract Sum shall be deemed to be
that which is set out in the Bills of Quantities mentioned in Clause 3 of these Conditions
which Bills except where expressly stated shall be deemed to have been prepared in
accordance with the principles of the Standard Method of Measurement of Building Works
last before issued by the Royal Institution of Chartered Surveyors of the United Kingdom.

2.

Any error in description or in quantity in or omission of items from the Bills of Quantities
shall not vitiate this contract but shall be rectified and treated as a variation.

3.

The contract Sum shall not be adjusted or altered in any way other than in accordance with
the express provisions of these Conditions and, subject to sub-clause (2) of this Condition,
any error whether of arithmetic or not in the computation of the Contract Sum shall be
deemed to have been accepted by the parties hereto.

4.

The fees and expenses of preparing Bills of Quantities and for measuring and valuing
variations will be paid by the Employer.

Unfixed Materials
Unfixed materials and goods intended for, delivered to and placed on or adjacent to the works shall
not be removed except for use upon the Works unless the Consultant has consented in writing to
such removal which consent shall not be unreasonably withheld. Where the value of any such
materials or goods has been included in any Interim Certificate in accordance with Clause 25(2) of
15

these Conditions such materials or goods shall become the property of the Employer but the
Contractor shall remain responsible for loss or damage to the same.
13.

Practical Completion and Defects Liability

1.

When in the opinion of the Consultant the Works are practically completed he shall
forthwith issue a certificate to that effect and Practical Completion of the Works shall be
deemed for all purposes of this Contract to have taken place on the day named in such
certificate.

2.

Any defects, shrinkage or other faults which shall appear within the Defects Liability Period
stated in the Appendix to these Conditions and which are due to materials or workmanship
not in accordance with this Contract shall be specified by the Consultant in a Schedule of
Defects which he shall deliver to the Contractor not later than fourteen days after the
expiration of the said Defects Liability Period and within a reasonable time after receipt of
such Schedule the defects, shrinkages and other faults therein specified shall be made good
by the Contractor and (unless the Consultant shall otherwise direct) at his own cost.

3.

Notwithstanding sub-clause (2) of this condition the Consultant may whenever he considers
it necessary issue instructions requiring any defect, shrinkage or other fault which shall
appear within the Defects Liability Period and which is due to materials or workmanship not
in accordance with this Contract to be made good and the Contractor shall within a
reasonable time after receipt of such instructions comply with the same and (unless the
Consultant shall otherwise direct) at his own cost.

4.

When in the opinion of the Consultant any defects, shrinkage or other faults which he may
have required to be made good under sub-clauses (2) and (3) of this Condition shall have
been made good he shall issue a certificate to that effect and completion of making good
defects shall be deemed for all purposes of this Contract to have taken place on the day
named in such certificate.
Providing that no certificate of completion of making good of defects issued prior to the
expiry of the Defects Liability Period shall relieve the Contractor from his liability to make
good any recurrence of such defects up to the date of the issue by the Consultant of the
Schedule of Defects referred to in sub-clause (2) of this Condition.

14.

Rates of Wages, etc.

1.

The Contractor shall pay to his employees under this Contract not less than the minimum
Government rate of wages including overtime and allowances ruling in the district for each
class of work. On any class of work for which there is no minimum Government rate of
wages the contractor shall pay not less than the rate of wages which are generally
recognized as fair or are already being paid by employers in the district for work of a similar
nature. In the event of any doubt or dispute as to the appropriate minimum rate of wages
for any class of work the Consultant shall fix such rates as he shall consider fair and
reasonable after consultation with the appropriate authorities.

2.

The Contractor shall pay his employees promptly and regularly at the customary intervals
and all employees shall be paid in full and up to date before the issue of the final certificate
by the Consultant.

3.

Before issuing any certificate under Clause 25 of these Conditions the Consultant may
request the Contractor to furnish to him reasonable proof that all his employees and the
employees of any sub-contractor have been paid in full all monies due to them for their
employment in connection with this contract up to the end of the month preceding that to
16

which the certificate refers and if the Contractor fails to comply with any such request the
Consultant shall issue a certificate to that effect and thereupon the Employer may himself
pay such amounts as he deems proper to the employees concerned and deduct the same
from any sums due or to become due to the Contractor. Neither the existence nor the
exercise of the foregoing powers nor anything else in these Conditions shall render the
Employer in any way liable to any employee of the Contractor or of any sub-contractor.

15.

4.

The Contractor shall be deemed to have ascertained from the Ministry of Labour the
requirements affecting the employment of Labour in respect of this Contract and shall
strictly comply with the regulations and instructions written or otherwise of the Ministry of
Labour or any other duly constituted authority affecting the employment of any class of
employee under this Contract.

5.

The Contractor, his agent and servants shall in all their dealings with their employees for
the time being employed on or in connection with the Works have the regard to all
recognized festivals and religions or other customs.

6.

The Contractor and any sub-contractor employed by him subject to Clause 9 of these
Conditions shall keep proper records of the time worked by every employee engaged on the
Contract, the class of work on which employed and the wages paid. Such records shall be
available for inspection at any time by the Consultant or the Supervising Officer or any duly
appointed representative of the Department of Labour and the Contractor shall produce if
required such other records as may be necessary as evidence of compliance with the
requirements of this Condition and also for the purposes of Clause 28 of these Conditions.
If required by the Consultant or Supervising Officer the Contractor shall deliver to the
Supervising Officer a return in such form and at such intervals as the Consultant may
prescribe showing in detail the supervisory staff and the numbers of the several classes of
labour from time to time employed by the Contractor or any sub-contractor in connection
with this Contract.

7.

The Contractor shall be responsible for the observance by sub-contractors employed by him
in the execution of this Contract of all the provisions of this Condition and their subcontracts shall be worded accordingly.

Injury to Persons and Property

1.

Injury to Persons: The Contractor shall be solely liable and shall indemnify the Employer in
respect of and shall insure against any liability, loss, claim or proceedings whatsoever
arising under any statute or at common law in respect of personal injury to or the death of
any person whomsoever arising out of or in the course of or caused by the execution of the
Works, unless due to any act or neglect of the Employer or of any person for whom the
Employer is responsible.

2.

Injury to Property: The Contractor shall be liable for and shall indemnify the Employer
against any liability, loss, claim or proceedings in respect of any injury or damage
whatsoever to any property real or personal in so far as such injury or damage arises out of
or in the course of or by reason of the execution of the Works, and provided always that the
same is due to any negligence, omission or default of the Contractor, his servants or agents
or any sub-contractor. Provided that, notwithstanding any legal or procedural disability in
respect of claims against the Government, for the purposes only of recovering any sums
from the Contractor or from the Insurers under the provisions of this clause, the Employer
shall be treated as if Government had the same liability in law in respect of claims arising in
tort as a private party would have in like circumstances; provided further that the payment
by the Employer of any sum by way of ex-gratia payment in respect of a claim in tort shall
be conclusive evidence that the circumstances were such that a private party would have
had a legal liability.
17

16.

Insurance
1.

Without prejudice to his liability to indemnify the Employer under Clause 15 hereof, the
Contractor shall effect or shall cause any sub-contractor to effect such insurances (including
insurance against third party fire risk) as may be specifically required by the Bills of
Quantities and shall produce or cause such Sub-contractor to produce as the case may be
the relevant policy or policies and premium receipts as and when required by the
Consultant, should the Contractor make default in so doing, the Employer may insure
against any risk with respect to which the default shall have occurred and may deduct the
premiums paid from any monies due or become due to the Contractor.

2.

The Contractor shall in the joint names of the Employer and

Contractor insure against loss and damage by fire, aircraft, storm, flood, tempest,
lightning or earthquake for the full reinstatement value thereof, plus Architects and
Surveyors fees where applicable, all work executed and all unfixed materials and goods
upon the site but excluding plant, tools and equipment, and shall keep such work, materials
and goods so insured until the works are delivered up; such insurance shall be with insurers
approved by the Consultant and the Contractor shall deposit with him the policies and
premiums receipts; should the Contractor make default the Employer may insure as
aforesaid and deduct the premiums paid from any monies due or to become due to the
Contractor.
The contractor shall upon settlement of any claim under the policies aforesaid proceed with
due diligence to rebuild or repair the works and replace or repair the materials or goods
destroyed or injured. All monies received under such policies are to be paid to the
Contractor by installments under certificates of the Consultant and the Contractor shall not
be entitled to any payment in respect of the rebuilding or repair of the works or the
replacement or repair of the materials or goods destroyed or injured other than the monies
received under the said policies.

17.

18.

Date for Possession and Completion and Progress of Works

1.

On or before the date for possession stated in the appendix to these Conditions possession
of the site shall be given to the Contractor who shall thereupon begin the Works forthwith
and regularly and diligently proceed with the same and shall complete the same on or
before the date for completion stated in the said appendix subject nevertheless to the
provisions for extension of time contained in Clause 19 of these Conditions.

2.

As soon as practicable after the signing of the Contract the Contractor shall submit to the
Consultant for his approval a programme showing the order procedure and method in and
by which he proposes to carry out the Works and shall whenever required by the Consultant
furnish particulars in writing of the Contractor's arrangements for the carrying out of the
Works. The submission to and the approval of the Consultant or such programme or the
furnishing of such particulars shall not relieve the Contractor of any of his duties or
responsibilities under this Contract.

3.

Should the rate of progress of the Works or any part thereof be at any time in the opinion
of the Consultant too slow to ensure the completion of the Works by the prescribed time the
Consultant shall so notify the Contractor in writing and the Contractor shall thereupon take
steps as the Contractor may think necessary and the Consultant may approve to expedite
progress so as to complete the Works by the prescribed time.

Damages for Non-completion

18

If the Contractor fails to complete the Works by the date stated in the appendix to these Conditions
or within any extended time fixed under Clause 19 of these Conditions and the Consultant certifies
in writing that in his opinion the same ought reasonably so to have been completed, the Contractor
shall pay or allow to the Employer a sum calculated at the rate stated in the said appendix as
Liquidated and Ascertained Damages for the period during which the said Works shall so remain or
have remained incomplete, and the Employer may deduct such damages from any monies otherwise
payable to the Contractor under this contract.
19.

Delay and Extension of Time

If in the opinion of the Consultant the Works be delayed:i.
ii.
iii.

by force majeure, or
by reason of any exceptionally inclement weather, or
by reason of loss or damage by any one or more of the contingencies referred to in Clause
16 of these Conditions, or

iv.

be reason of civil commotion, local combination of workmen, strike or lockout affecting any
of the trades employed upon or in connection with the Works, or

v.

by reason of the Consultant's Instructions given in pursuance of Clause 2 of these

Conditions, or

vi.

because the Contractor has not received in due time necessary instructions from the
Consultant for which he shall have specifically applied in writing, or

vii.

by delay on the part of nominated Sub-contractors or nominated Suppliers which the

Contractor has in the opinion of the Consultant taken all practicable steps to avoid or
reduce, or

viii.
ix.

by delay on the part of other Contractors or tradesmen engaged by the Employer in

executing work not forming part of this Contract, or
by the Contractor's inability for reason beyond his control and which he could not
reasonably have foreseen at the date of this Contract to secure such labour, goods or
materials as are essential to the proper carrying out of the Works;

then in any such case the Consultant shall make a fair and reasonable extension of time for
completion of the works. Upon the happening of any such event causing delay the Contractor shall
immediately give notice thereof in writing to the Consultant but he shall nevertheless use constantly
his best endeavours to prevent delay and shall do all that may reasonably be required to the
satisfaction of the Consultant to proceed with the Works. Provided that the Consultant shall not be
bound to grant any such extension unless the Contractor has within 28 days after the occurrence of
any of the aforesaid matters given written notice to the Consultant of a claim for extension of time
with full and detailed particulars of the matters alleged to justify such a claim.
20.

Determination by Employer
1.

Default If the Contractor shall make default in any of the following respects, viz:a.

If without reasonable cause he wholly suspends the works before completion,

b.

If he fails to proceed with the works with reasonable diligence,

19

2.

3.

c.

If he refuses or persistently neglects to comply with a notice in writing from the

Consultant requiring him to remove defective work or improper materials,

d.

If he fails to comply with the provisions of Clause 9 of these Conditions,

e.

If he fails to comply with the provisions of Clause 14 of these Conditions,

and if he shall continue such default for fourteen days after a written notice specifying the
default has been given to him by the Consultant, the Employer may, without prejudice to
any other rights or remedies, thereupon by written notice determine the employment of the
Contractor under this contract; provided that notice in pursuance of this clause shall not be
given unreasonably or vexatiously and shall be void if the Employer is at the time of the
notice in breach of this Contract.
Insolvency of Contractor - If the Contractor becomes insolvent or makes any arrangement
with or assignment in favour of his creditors, or being a company enters into liquidation
whether compulsory or voluntary except liquidation for the purpose of reconstruction, the
employment of the Contractor under this Contract shall be forthwith automatically
determined but the said employment may be reinstated and continued if the Employer and
the contractor, his trustee in bankruptcy, liquidator, receiver or manager as the case may be
shall so agree.
In either of the cases for which the two preceding sub-clauses provide, the following shall
be the respective rights and duties of the Employer and Contractor, viz: a.

The Employer may employer and pay other persons to carry out and complete the
Works and he or they may enter upon the site and use all temporary buildings,
plant, machinery, appliances, goods and materials thereon and may purchase all
materials and goods necessary for the carrying out and completion of the Works.

b.

The Contractor shall if so required by the Consultant, assign to the Employer

without further payment the benefit of any agreement for the supply of materials
and/or for the execution of any work for the purposes of this Contract and the
Employer shall pay for any such materials supplied or work executed under such
agreement (whether before or after the said determination) in so far as it has not
been already paid by the Contractor.

c.

The Contractor shall during the execution or after the completion of the Works
under this clause remove from the site as and when required (but not before) within
such reasonable time as the Consultant may in writing specify, any temporary
buildings, plant, machinery, appliances, goods or materials belonging to or hired by
him, and in default the Employer may (without being responsible for any loss or
damage) remove and sell any such property of the Contractor, holding the proceeds
less all costs incurred to the credit of the Contractor.

d.

Until after completion of the works under this clause the Employer shall not be
bound by any other provision of this contract to make any payment to the
Contractor, but upon such completion and the verification within a reasonable time
of the accounts therefor the Consultant shall certify the amount of expenses
properly incurred by the Employer and the amount of any direct loss and/or damage
caused to the Employer by the determination and, if such amount added to the
monies paid to the Contractor before such determination exceeds the total amount
which would have been payable on due completion in accordance with the Contract,
the difference shall be a debt payable to the Employer by the Contractor; and if the
amount added to the said monies be less than the said total amount, the difference
shall be a debt payable by the Employer to the Contractor.

20

21.

Determination by Contractor
1.

If the Employer within the period for Honouring of Certificates which is named in the
appendix to these Conditions and thereafter for seven clear days after written notice from
the Contractor does not pay to the Contractor the amount due on that certificate, or if the
Employer interferes with or obstructs the issue of any certificate, or if the whole or
substantially the whole of the Works (other than work required under Clause 13 of these
Conditions) is delayed for the period named in the appendix to these Conditions by one or
more of the causes, other than local combination of workmen, strike or lockout, which are
named in Clause 19 of these Conditions, the Contractor may without prejudice to any other
rights or remedies, thereupon by notice by registered post to the Consultant determine the
employment of the Contractor under this Contract.

2.

Upon such determination, then without prejudice to the accrued rights or remedies of either
party or to any liability of the clauses mentioned in Clause 15 of these Conditions which
may accrue either before the Contractor or any sub-contractors shall have removed his or
their temporary buildings, plant, machinery, appliances, goods or materials or by reason of
his or their so removing the same, the respective rights and liabilities of the Contractor and
the Employer shall be as follows, viz: a.

The Contractor shall with all reasonable dispatch and in such manner and with such
precautions as will prevent injury or damage of the classes for which before such
determination he was liable under Clause 15 of these Conditions remove from the
site all his temporary buildings, plant, machinery, appliances, goods and materials
and shall give facilities for his sub-contractors to do the same, but subject `always
to the provisions of sub-clause (b) (iii) of this clause.

b.

The Contractor shall be paid by the Employer: i.

The contract value of the Works completed at the date of such

determination subject to Clause 10 of these Conditions.

ii.

The value of works begun and executed but not completed at the date of
such determination, the value being ascertained mutatis mutandis in
accordance with Clause 10 of these Conditions.

iii.

The cost of materials or goods properly ordered for the Works for which the
Contractor shall have paid or for which the Contractor is legally bound to
pay and on such payment by the Employer any materials or goods so paid
for shall become the property of the Employer.

iv.
v.

22.

The reasonable cost of removal under sub-clause (a) of this Clause.

Any direct loss and/or damage caused to the Contractor by the
determination.

Nominated Sub-Contractors
The following provisions of this Condition shall apply where prime cost sums are included in the Bills
of Quantities or arise as a result of Consultant's Instructions given in regard to the expenditure of
provisional sums in respect of persons to be nominated by the Consultant to supply and fix
materials or goods or to execute work.
a.

Such sums shall be expended in favour of such person or persons as the Consultant shall
instruct, and all specialists or others who are nominated by the Consultant are hereby
declared to be sub-contractors employed by the Contractor and are referred to in these
Conditions as "nominated sub-contractors." Provided that the Consultant shall not nominate
21

any person or persons as a sub-contractor against whom the Contractor shall make
reasonable objection, or (save where the Consultant and Contractor shall otherwise agree)
who will not enter into a contract which provides inter alia: i.

That the nominated sub-contractor shall carry out and complete the sub-contract
Works in every respect to the reasonable satisfaction of the Contractor and of the
Consultant and in conformity with all the reasonable directions and requirements of
the Contractor.

ii.

That the nominated sub-contractor shall observe, perform and comply with all the
provisions of this Contract on the part of the Contractor to be observed, performed
and complied with (other than Clause 16(2) of these Conditions) so far as they
relate and apply to the sub-contract Works or to any portion of the same.

iii.

That the nominated sub-contractor shall indemnify the Contractor against the same
liabilities in respect of the sub-contract Works as those for which the Contractor is
liable to indemnify the Employer under this Contract.

iv.

That the nominated sub-contractors shall indemnify the Contractor against claims in
respect of any negligence, omission or default of such sub-contractor, his servants
or agents or any misuse by him or them of any scaffolding or other plant, and shall
insure himself against any such claims and produce the policy or policies and
receipts in respect of premiums paid as and when required by either the Consultant
or the Contractor.

v.

That the sub-contract Works shall be completed within the period or (where they
are to be completed in sections) periods therein specified, that the Contractor shall
not without the written consent of the Consultant grant any extension of time for
the completion of the sub-contract Works or any section thereof, and that the
Contractor shall inform the Consultant of any representation made by the
nominated sub-contractor as to the cause of any delay in the progress or
completion of the sub-contract Works or of any section thereof.

vi.

That if the nominated sub-contractor shall fail to complete the sub-contract Works
or (where the sub-contract Works are to be completed in sections) any section
thereof within the period therein specified or within any extended time granted by
the Contractor with the written consent of the Consultant and the Consultant
certifies in writing to the Contractor that the same ought reasonably so to have
been completed, the nominated sub-contractor shall pay or allow to the Contractor
either a sum calculated at the rate therein agreed as liquidated and ascertained
damages for the period during which the said Works or any section thereof, as the
case may be, shall so remain or have remained incomplete or (where no such rate
is therein agreed) a sum equivalent to any loss or damage suffered or incurred by
the Contractor and caused by the failure of the nominated sub-contractor as
aforesaid.

vii.

That payment in respect of any work, materials or goods comprised in the subcontract shall be made within 14 days after receipt by the Contractor of the
Consultant's certificate under Clause 25 of these Conditions which states as due an
amount calculated by including the total value of such work, materials or goods,
and shall when due be subject to the retention by the Contractor of the sums
mentioned in sub-paragraph (viii) of paragraph (a) of this Condition.

viii.

That the Contractor shall retain from the sum directed by the Consultant as having
been included in the calculation of the amount stated as due in any certificate
issued under Clause 25 of these Conditions in respect of the total value of work,
materials or goods executed or supplied by the nominated sub-contractor the
percentage of such value named in the appendix to these Conditions as percentage
22

of Certified Value Retained up to a total amount not exceeding a sum which bears
the same ratio to the sub-contract price as the unreduced sum named in the
appendix to these Conditions as limit of Retention Fund bears to the Contract Sum;
and that the Contractor's interest in any sums so retained (by whomsoever held)
shall be fiduciary as trustee for the nominated sub-contractor (but without
obligation to invest), and that the nominated sub-contractor's beneficial interest in
such sums shall be subject only to the right of the Contractor to have recourse
thereto from time to time for payment of any amount which he is entitled under the
sub-contract to deduct from any sum due or to become due to the nominated subcontractor; and that if and when such sums or any part thereof are released to the
nominated sub-contractor they shall be paid in full.
ix.

b.

That the Consultant and his representatives shall have right of access to the
workshops and other places of the nominated sub-contractor as mentioned in
Clause 8 of these Conditions.

The Consultant shall direct the Contractor as to the total value of work, materials or goods
executed or supplied by a nominated sub-contractor included in the calculation of the
amount stated as due in any certificate issued under Clause 25 of these Conditions and shall
forthwith inform the nominated sub-contractor in writing of the amount of the said total
value. The sum representing such total value shall be paid by the Contractor to the
nominated sub-contractor within 14 days of receiving payment from the Employer of the
amount included in the Consultant's certificate less only (i) any retention money which the
Contractor may be entitled to deduct under the terms of the sub-contract, and (ii) any sum
to which the Contractor may be entitled in respect of delay in the completion of the subcontract works or any section thereof.

c.

Before issuing any certificate under Clause 25 of these Conditions the Consultant may
request the Contractor to furnish to him reasonable proof that amounts included in the
calculation of the amount stated as due in previous certificates in respect of the total value
of the work, materials or goods executed or supplied by any nominated sub-contractor have
been duly discharged, and if the Contractor fails to comply with any such request the
Consultant shall issue a certificate to that effect and thereupon the Employer may himself
pay such amounts to any nominated sub-contractor concerned and deduct the same from
any sums due or to become due to the Contractor.
d.

e.

i.

The contractor shall not grant to any nominated sub-contractor any extension of the
period within which the sub-contract works or (where the sub-contract works are to
be completed in sections) any section thereof is to be completed without the written
consent of the Consultant, provided always that the Contractor shall inform the
Consultant of any representations made by the nominated sub-contractor as to the
cause of any delay in the progress or completion of the sub-contract Works or of
any section thereof, and that the consent of the Consultant shall not unreasonably
be withheld.

ii.

If any nominated sub-contractor fails to complete the sub-contract works or (where

the sub-contract works are to be completed in sections) any section thereof within
the period specified in the sub-contract or within any extended time granted by the
Contractor with the written consent of the Consultant, then if the same ought
reasonably so to have been completed the Consultant shall certify in writing
accordingly; immediately upon issue the Consultant shall send a duplicate of any
such certificate to the nominated sub-contractor.

If the Consultant desires to secure final payment to any nominated sub-contractor before
final payment is due to the Contractor, and if such sub-contractor has satisfactorily
indemnified the Contractor against any latent defects, then the Consultant may in an
Interim Certificate include an amount to cover the said final payment, and thereupon the
23

Contractor shall pay to such nominated sub-contractor the amount so certified. Upon such
final payment, the amount named in the appendix to these Conditions as Limit of Retention
Fund shall be reduced by the sum which bears the same ratio to the said amount as does
such sub-contractor's sub-contract price to the Contract Sum, and save for latent defects
the Contractor shall be discharged from all liability for the work, materials or goods
executed or supplied by such sub-contractor under the sub-contract to which the payment
relates.
f.

g.

23.

Neither the existence nor the exercise of the foregoing powers nor anything else contained
in these Conditions shall render the Employer in any way liable to any nominated subcontractor.
i.

Where the Contractor in the ordinary course of his business directly carries out
works for which prime cost sums are included in the Bills of Quantities and where
items of such works are set out in the appendix to these Conditions and the
Consultant is prepared to receive tenders from the Contractor for such items, then
the Contractor shall be permitted to tender for the same or any of them but without
prejudice to the Employer's right to reject the lowest or any tender. If the
Contractor's tender is accepted, he shall not sub-let the work without the consent of
the Consultant. Provided that where a prime cost sum arises under Consultant's
Instructions it shall be deemed for the purposes of this paragraph to have been
included in the Bills of Quantities and the item of work to which it relates shall
likewise be deemed to have been set out in the appendix to these Conditions.

ii.

It shall be a condition of any tender accepted under this paragraph that Clause 10
of these Conditions shall apply in respect of the items of work included in the tender
as if the references therein were references to the equivalent documents included in
or referred to in the tender.

Nominated Suppliers
The following provisions of this Condition shall apply where prime cost sums are included in the Bills
of Quantities or arise as a result of Consultant's Instructions given in regard to the expenditure of
provisional sums, in respect of any materials or goods to be fixed by the Contractor.
a.

The term prime cost or the abbreviation P.C. when included or arising as aforesaid, shall be
understood to mean the net cost to be defrayed as a prime cost after deducting any trade
or other discount and shall include purchase tax and customs duty (where applicable), and
the cost of packing, carriage and delivery. Provided that, where in the opinion of the
Consultant the Contractor has incurred expense for special packing or special carriage, such
special expense shall be allowed as part of the sums actually paid by the Contractor.

b.

Such sums shall be expended in favour of such person of persons as the Consultant shall
instruct, and all specialists, merchants, tradesmen or others who are nominated by the
Consultant to supply materials or goods are hereby declared to be suppliers to the
Contractor and are referred to in these Conditions as "nominated suppliers." Provided that
the Consultant shall not (save where the Consultant and Contractor shall otherwise agree)
nominate as a supplier a person or persons who will not enter into a contract of sale which
provides inter alia: i.

That the materials or goods to be supplied shall be to the reasonable satisfaction of

the Consultant.

ii.

That the nominated supplier shall make good by replacement or otherwise any
defects in the materials or goods supplied which appear within such period as is
therein mentioned and shall bear any expenses reasonably incurred by the
24

Contractor as a direct consequence of such defects, provided that:-

iii.

24.

1.

where the materials or goods have been used or fixed such defects are not
such that examination by the Contractor ought to have revealed them
before using or fixing;

2.

such defects are due solely to defective workmanship or material in the

goods supplied and shall not have been caused by improper storage by the
Contractor or by misuse or by any act or neglect of either the Contractor,
the Consultant or the Employer or by any person or persons for whom they
may be responsible.

That delivery of the materials or goods supplied shall be commenced and completed
at such times as the Contractor may reasonably direct.

c.

All payments by the Contractor for materials or goods supplied by a nominated supplier
shall be in full and shall be paid within 30 days of the end of the month during which
delivery is made.

d.

Before issuing any certificate under Clause 25 of these Conditions the Consultant may
request the Contractor to furnish to him reasonable proof that all amounts included in
previous certificate in respect of materials or goods supplied by a nominated supplier have
been duly discharged, and if the Contractor fails to comply with any such request the
Consultant shall issue a certificate to that effect and thereupon the Employer may himself
pay such amounts to any nominated supplier concerned and deduct the same from any
sums due or to become due to the Contractor.

e.

Neither the existence nor the exercise of the foregoing powers nor anything else contained
in these Conditions shall render the Employer in any way liable to any nominated supplier.

Artists and Tradesmen

The Contractor shall permit the execution of work not provided for in the Bills of Quantities by
artists, tradesmen or other such persons engaged by the Employer. Every such person shall for the
purposes of Clause 15 of these Conditions be deemed to be a person for whom the Employer is
responsible and not to be a sub-contractor.

25.

Certificates and Payments

1.

At the Period of Interim Certificates named in the appendix to these Conditions, interim
valuations shall be made and the Consultant shall issue a certificate stating the amount due
to the Contractor from the Employer and the Contractor shall be entitled to payment
therefor within the period for Honouring Certificates named in the appendix to these
Conditions. Provided that no Interim Certificate shall be issued if the amount due as
defined in sub-clause (2) of this Condition shall be less than the Minimum Amount of
Interim Certificate named in the appendix to these Conditions.

2.

The amount so due shall, subject to Clauses 14(3), 22(c) and 23(d) of these Conditions and
to any agreement between the parties as to stage payment, be the total value of the work
properly executed and the materials and goods delivered upon the site for use in the Works
up to and including a date not more than seven days before the date of the said certificate,
less the amount to be retained by the Employer (as hereinafter provided) and less any
installments previously paid under this clause. Provided that such certificate shall only
include the value of the said materials and goods as and from such time as they are
reasonably, properly and not prematurely brought upon the site and then only if adequately
stored and/or protected against weather or other casualties.
25

3.

The amount which may be retained by the Employer in virtue of this clause shall be the
percentage of the value of the work and materials aforesaid which is named in the appendix
to these Conditions as Percentage of Certified Value Retained and up to the amount there
named as Limit of Retention Fund. Provided that where the limit named in the appendix or
the limit reduced in pursuance of Clause 22 of these Conditions, as the case may be, has
been reached, no further amount shall be retained by virtue of this sub-clause.

4.

The amounts retained by virtue of sub-clause (3) of this Condition shall be dealt with in the
following manner:-

5.

a.

On the issue of the Certificate of Practical Completion the Consultant shall, subject
to Clause 18 of these Conditions, issue a certificate for one moiety of the total
amount then retained and the Contractor shall be entitled to payment thereof within
the Period for Honouring Certificates named in the appendix to these Conditions.

b.

On the expiration of the Defects Liability Period or on the issue of the Certificate of
making Good Defects, whichever is the later, the Consultant shall issue a certificate
for the residue of the amount then retained and the Contractor shall be entitled to
payment thereof within the Period for Honouring Certificates named in the appendix
to these Conditions.

a.

The measurement and valuation of the Works shall be completed within the Period
of Final Measurement and Valuation stated in the appendix to these Conditions and
the Contractor shall be supplied with a copy of the priced Bills of Variation not later
than the end of the said Period and before the issue of the Final Certificate under
sub-clause (6) of this Condition.

b.

c.

Either before or within a reasonable time after Practical Completion of the Works
the Contractor shall send to the Consultant all documents necessary for the
purposes of the computations required by these Conditions including all documents
relating to the accounts of nominated sub-contractors and nominated suppliers.
In the settlement of accounts the amounts paid or payable by the Contractor to
nominated sub-contractors or nominated suppliers and the value of any works
executed by the Contractor in pursuance of Clause 22(g) of these Conditions and
the value of any work executed by the Contractor for which a provisional sum is
included in the Bills of Quantities shall be set against the Prime Cost or Provisional
Sums, mentioned in the Bills of Quantities as the case may be, and the balance,
after allowing pro rata for the Contractor's profit at the rates shown in the priced
Bills of Quantities, shall be added to or deducted from the Contract Sum. Provided
that no deductions shall be made in respect of any damages paid or allowed by any
sub-contractor or supplier to the Contractor, the intention being that the Contractor
and not the Employer shall have the benefit of any such damages.

6.

As soon as practicable but before the expiration of three months from the end of the
Defects Liability Period stated in the appendix of these Conditions or from completion of
making good defects under Clause 13 of these Conditions, or from receipt by the Consultant
of the documents referred to in sub-clause (5) (b) of this Condition, whichever is the later,
the Consultant shall issue a Final Certificate of the value of the Works executed by the
Contractor and such Final Certificate, save in cases of fraud, dishonesty or fraudulent
concealment relating to the Works or materials or to any matter dealt with in the Certificate
or any incorrect computation and save as regards all defects and insufficiencies in the
Works or Materials which a reasonable examination would not have disclosed, shall be
conclusive evidence as to the sufficiency of the said Works and Materials.

7.

Save as aforesaid no certificate of the Consultant shall of itself be conclusive evidence that
any works or materials to which it relates are in accordance with this Contract.
26

8.

26.

Payment will be made in all cases in Ghana currency unless other conditions of payment are
expressly agreed.

Sectional Completion
If at any time or times before Practical Completion of the Works the Employer with the consent of
the Contractor shall take possession of any part or parts of the same (any such part being
hereinafter in this clause referred to as the relevant part), then notwithstanding anything
expressed or implied elsewhere in this Contract: a.

Within seven days from the date on which the Employer shall have taken possession of the
relevant part the Consultant shall issue a certificate stating his estimate of the approximate
total value of the said part, and for all the purposes of this Condition (but for no other) the
value so stated shall be deemed to be the total value of the said part.

b.

For the purposes of sub-paragraph (ii) of paragraph (e) of this Condition and of sub-clauses
(2) and (3) of Clause 13 of these Conditions, Practical Completion of the relevant part shall
be deemed to have occurred and the Defects Liability Period in respect of the relevant part
shall be deemed to have commenced on the date on which the Employer shall have taken
possession thereof.

c.

When in the opinion of the Consultant any defects, shrinkage or other faults in the relevant
part which he may have required to be made good under sub-clause (2) or sub-clause (3) of
Clause 13 of these Conditions shall have been made good he shall issue a certificate to that
effect.

d.

In lieu of any sum to be paid or allowed by the Contractor under Clause 18 of these
Conditions in respect of any period during which the Works may remain incomplete
occurring after the date on which the Employer shall have taken possession of the relevant
part there shall be paid or allowed such sum as bears the same ratio to the sum which
would be paid or allowed apart from the provisions of this Condition as does the Contract
Sum less the total value of the said relevant part to the Contract Sum.

e.

27.

i.

Within fourteen days of the date on which the Employer shall have taken
possession of the relevant part there shall be paid to the Contractor from the sums
then retained under Clause 25(3) of these Conditions (if any) one moiety of such
amount as bears the same ratio to the unreduced amount named in the appendix to
these Conditions as Limit of Retention Fund as does the total value of the said
relevant part to the Contract Sum, and the amount named in the appendix to these
Conditions as Limit of Retention Fund shall be reduced by the amount of such
moiety.

ii.

On the expiration of the Defects Liability Period named in the appendix to these
Conditions in respect of the relevant part or on the issue of the Certificate of
Completion of Making Good Defects in respect of the relevant part whichever is the
later; there shall be paid to the Contractor from the sums then retained under
Clause 25(3) of these Conditions (if any) the other moiety of the amount referred to
in the immediately preceding sub-paragraph, and the amount named in the
appendix to these Conditions as Limit of Retention Fund shall be reduced by the
amount of such moiety.

Loss and Expense Caused by Disturbance of Regular Progress of the Works

1.

If upon written application being made to him by the Contractor the Consultant is of the
opinion that the Contractor has been involved in direct loss and/or expense for which he
27

would not be reimbursed by a payment under any other provision in this Contract by reason
of regular progress of the Works or of any part thereof having been materially affected by:
a.

The Contractor not having received in due time necessary instructions, drawings,
details or levels from the Consultant, for which he specifically applied in writing on a
date which having regard to the Date for Completion stated in the appendix to
these Conditions or to any extension of time then fixed under Clause 19 of these
Conditions was neither unreasonably distant from nor unreasonably close to the
date on which it was necessary for him to receive the same; or

b.

The opening up for inspection of any work covered up or the testing of any of the
work, materials or goods in accordance with Clause 6(3) of these Conditions
(including making good in consequence of such opening up or testing), unless the
inspection or test showed that the work, materials or goods were not in accordance
with this Contract; or

c.

Any discrepancy in or divergence between the Contract Drawings and/or the Bills of
Quantities; or

d.

Delay on the part of artists, tradesmen or others engaged by the Employer in

executing work not forming part of this Contract; or

e.

Consultant's instructions issued in regard to the postponement of any work to be

executed under the provisions of this Contract;
and if the written application is made within a reasonable time of it becoming
apparent that the progress of the Works or of any part thereof has been effected as
aforesaid, then the Consultant shall ascertain the amount of such loss and/or
expense. Any amount from time to time so ascertained shall be added to the
Contract Sum, and if an Interim Certificate is issued after the date of ascertainment
any such amount shall be added to the amount which would otherwise be stated as
due in such Certificate.

2.

28.

The provisions of this Condition are without prejudice to any other rights and remedies
which the Contractor may possess.

Fluctuations
1.

2.

The Contract Sum shall be deemed to have been calculated on the basis of the following
considerations: a.

The rate of wages including overtime and allowances as defined in Clause 14 of

these Conditions and Employer's contribution to Social Welfare Scheme or any other
Statutory enactment prevailing at the date named in the Appendix to these
Conditions as the Date from which Fluctuations shall be calculated.

b.

The current market prices at the date of this Contract of the materials and goods as
listed and priced in Appendix II to these Conditions (hereinafter referred to as "the
basic prices").

If the aforesaid rates of wages, overtime, allowances and/or Employer's contribution to

Social Welfare Scheme or any other Statutory enactment shall be increased or decreased
after the date mentioned in sub-clause (1)(a) of this Condition by any decision of the
Government or by any agreement with the recognized trade unions which has received the
approval of the Government then the net amount of such increase or decrease shall be
added to or deducted from the Contract Sum as the case may be.
28

3.

a.
If during the progress of the Works the market price of any of the materials
or goods
listed in Appendix II of these Condition varies from the basic price
thereof then the
difference between the basic price and the market price
payable by the Contractor
and current when such materials or goods are
bought shall be added to or deducted
from the Contract Sum as the case may be.
b.

The Contractor shall use his best endeavours to make his purchases in the most
advantageous manner for the Employer and shall not be entitled to any additional
payment for an excess of the price paid over the basic price where such excess is
due to his failure to order the materials or goods in good time or to make
reasonable use of alternative source of supply.

c.

The Contractor shall give written notice within reasonable time to the Consultant of
any increases demanded or reductions obtainable on the basic prices of materials or
goods.

d.

The Contractor shall keep such books, accounts and documents and records as are
necessary to show the increase or decrease which occur on the basic prices and
shall produce such accounts, documents and records for the inspection of the
Consultant when required and shall provide such other information as the
Consultant may reasonably require.

4.

No variation will be made to any sums included in the Contract Sum in respect of overhead
charges or profit on account of any increase to or deductions from the Contract Sum made
under sub-clauses (2) and (3) of this Condition.

5.

If the Contractor shall decide subject to Clause 9 of these Conditions to sub-let any portion
of the Works he shall incorporate in the sub-contract provisions to the like effect as those
contained in the foregoing sub-clause of this Condition and the net amount of any increase
or decrease of the price payable under such sub-contract by reason of the operation of the
said incorporated provisions shall be added to or deducted from the Contract Sum as the
case may be.

6.

This Condition shall not apply in respect of work executed or materials or goods supplied by
any nominated sub-contractor or nominated supplier or by the contractor for which a tender
has been accepted under Clause 22(g) of these Conditions, the intention being that any
fluctuations in relation thereto shall be dealt with under provisions which may be included in
the appropriate sub-contract of sale or accepted tender.

29.

Customs Duty Exemption

30.

Gifts, Inducement and Rewards

1.

The Contractor shall not offer or give or agree to give to any person any gifts or
consideration of any kind as an inducement or reward for doing or forebearing to do or for
having done or forborne to do any action in relation to the obtaining or execution of this
Contract or for showing favour or disfavour to any person or persons in relation to this
29

Contract or any Contract with the Employer.

2.

31.

The Employer shall be entitled to determine the employment of the Contractor under this
Contract and to recover from the Contractor the amount of any loss resulting from such
determination if the Contractor shall commit any breach of this Condition or if the like acts
shall have been done by any person employed by the Contractor or acting on his behalf
(whether with or without the knowledge of the Contractor) or if in relation to this Contract
or any other Contract with the Employer the Contractor or any person employed by him or
acting on his behalf shall have been convicted of any offence relating to corruption.

Antiquities
All fossils, coins, articles of value or antiquity and structures and other remains or things of
geological or archeological interest discovered on the site of the Works shall as between the
Employer and the Contractor be deemed to be the absolute property of the Employer and the
Contractor shall take reasonable precautions to prevent his workmen or any other persons from
removing or damaging any such article or thing and shall immediately upon discovery thereof and
before removal acquaint the Consultant of such discovery and carry out at the expense of the
Employer the Consultant's orders as to the disposal of the same.

32.

Arbitration
Provided always that in case any dispute or difference shall arise between
the Employer or the Consultant and the Contractor, either during the
progress or after the completion or abandonment of the Works, as to the
construction of this contract or as to any matter or thing of whatsoever
nature arising thereunder or in connection therewith (including any matter
or thing left by this contract to the discretion of the Consultant or the
withholding by the Consultant of any certificate to which the Contractor
may claim to be entitled or the measurement and valuation mentioned in
Clause 10 of these Conditions or the rights and liabilities of the parties
under clause 20 or 21 of these Conditions) then either party shall
forthwith give to the other notice in writing of such dispute or
difference, and such dispute or difference shall be and is hereby referred
to an Arbitrator and the provisions of the Arbitration Act (Act 38), 1961
or any statutory modification or re-enactment therefore shall apply to
such Arbitration. Such reference except on the question whether or not a
certificate has been improperly withheld or is not in accordance with
Clause 25 of these Conditions, shall not be opened until after the
completion or abandonment of the Works, unless with the written consent of
the Consultant and the Contractor. Without prejudice to the generality of
his powers the Arbitrator shall have power to direct such measurements
and/or valuations as may in his opinion be desirable in order to determine
the rights of the parties and to ascertain and award any sum which ought
to have been the subject of or included in any certificate and to open up,
review and revise any Certificate, opinion, decision, requisition or
notice and to determine all matters in dispute which shall be submitted to
him, and of which notice shall have been given as aforesaid, in the same
manner as if no such certificate, opinion, decision, requisition or notice
had been given.

30

APPENDIX I
Clause
Defects Liability Period
(if none other stated is 6 months
from the Practical Completion of
the works)

13, 25(6) and 26

Date for possession

17

...........................................................

Date for completion

17

.............................

Liquidated and Ascertained

.......... Damages

18

at the rate of ...................... per

Period of Delay
21(1)
..........................
Prime Cost or Provisional sums
22(g)
for which the Contractor desires to tender

..........................................

.................................................................
.................................................................
.................................................................
31

Period of Interim Certificates

25(1)
...............................................................
...............................................................
Period for Honouring of Certificates
25(1)
...............................................................
Minimum Amount of Interim
Certificates
............................

25(1)

Percentage of Certified Value

Retained
25(3)
..............................................................
Limit of Retention Fund
25(3)
...............................................................
Period of Final Measurement
10 and 25(5)
................................................................
and Valuation (if none other stated
is 6 months from the Practical
Completion of the Works)
Date from which Fluctuations
shall be calculated

28(1)

..............................................................

32