In the Contract (as hereinafter defined) the following words and expressions shall have the following meanings hereby assigned to them except where the context otherwise requires.
“Employer” means XXX whose power, right and authority being invested in ADDRESS
“Contract Officer” means the person named in the Letter of Acceptance who acting on behalf of the Employer is responsible for all contractual aspects of the contract.
“Consultant” means the person appointed by the Employer to act as Engineer for the purposes of the contract and named in the Letter of Acceptance, who is responsible for supervising the Works.
“Project Officer” means the person named in the Letter of Acceptance, who acting on behalf or the Employer is responsible for approving payment certificates and dealing with all correspondence in connection with the technical aspects of the contract.
“Consultant’s Representative(s)” means a person(s) appointed by the Consultant under Clause 2.2 who shall be notified to the Contractor in writing.
“Contractor” means the person or company who has been appointed as the Contractor for the purpose of undertaking the Works.
“Client” means the Sierra Leone Ministry of Education, Science and Technology.
“Contract” means all correspondence relating to the Offer, the actual Offer, the Conditions of Contract, the Specifications, the Bill of Quantities and Drawings.
“Specification” means the specification dealing the character and quality of work to be performed under the Contract.
“Bill of Quantities” means the schedule of work items indicating the provisional quantity of work to be carried out.
“Works” means all work, permanent and temporary required completing the Contract.
“Tender” or “Form of Tender” means the Contractor’s price offer to the Employer for the execution and completion of the works and the remedying of any defects therein in accordance with the provisions of the Contract, as accepted in the Letter of Acceptance.
“Site” means the places provided by Client where the Works are to be executed and any others places as may be specifically designated in the Contract as forming part of the Site
“Letter of Acceptance” means the formal acceptance by the Employer of the Tender.
“Commencement Date” means the date upon which the Contractor has agreed to commence work as stated in the Tender.
“Time for Completion” means the time for completing the execution of the Works as stated in the Tender calculated from the Commencement Date.
“Interim payment certificate” means any certificate of payment issued by the Consultant pursuant to Clause 14.2.
“Final payment certificate” means the certificate of payment issued by the Consultant pursuant to Clause 14.11
2. Consultant and Consultant’s Representative
The Consultant shall be responsible for monitoring the Works as undertaken by the Contractor and for instructing the Contractor in the matter of defining the Works required.
The Consultant’s Representative shall be appointed by and be responsible to the Consultant and shall carry out such duties and exercise such authority as is set out in these Conditions with any further duties that may be delegated to him by the Consultant under Clause 2.3.
The Consultant may from time to time delegate to the Consultant’s Representative further duties and authorities over those already listed in these Conditions and he may at any time revoke such delegation or any other duties already listed in the Conditions. Any such delegation or revocation shall be in writing and shall not take effect until a copy thereof has been delivered to the Contractor.
Any communication given by the Consultant’s Representative to the Contractor in accordance with such delegation shall have the same effect as though it had been given by the Consultant, provided that:
a) Any failure of the Consultant’s Representative to the Contractor to disapprove any work, materials, or Plant shall not prejudice the authority of the Consultant to disapprove such work, materials or Plant and to give instructions for the rectification thereof ; and
b) If the Contractor questions any communication of the Consultant’s Representative he may refer the matter to the Consultant who shall confirm, reverse or vary the contents of such communication.
Instructions given by the Consultant or his Representative shall be in writing although oral instructions may also be given but must be confirmed in writing by the Consultant or his Representative or the Contractor and agreed within 7 days of the instruction.
- Contract Documents
The language of the Contract and all communications between the Contractor and Consultant or their representatives shall be English.
The law of the Contract shall be the law of Sierra Leone .
The following documents shall be deemed to form and be read and construed as part of this Agreement. Their precedence shall be in the order shown below
a) The Form of Agreement
b) The Letter of Acceptance
c) The Tender
d) The Conditions of Contract
e) The Specifications
f) The price Bill of Quantities
g) The Drawings
The Contractor shall give notice to the Consultant whenever planning or execution of the works is likely to be delayed or disrupted unless any further drawing or instruction is issued by the Consultant within a reasonable time. The notice shall include details of the drawing or instruction required and of why and by when it is required and of any delay or disruption likely to be suffered if it is late.
If, by reason of any failure or inability of the Consultant to issue, within time reasonable in all circumstances, any drawing or instruction for which notice has been given by the Contractor, the Contractor suffers delay and/or incurs costs then the Consultant shall, after due consultation with Contractor, determine:
a) Any extension of time to which the Contractor is entitled
b) The amount of such costs, which shall be added to the Contract Price
The currency of payment shall be in EUR/USD, ….
No advance payment against Interim Payments shall be granted.
The rates submitted by the Contractor and quoted in Bill of Quantities will not be subject to any price fluctuation throughout the course of the Contract period.
- General Obligations
The Contractor shall, with due care and diligence, design, execute and complete the Works listed in Section 1, in accordance with the specifications in Section 2 at the rates in Section 3 and to the directions of the Consultant and remedy any defects therein in accordance with the provisions of the contract. Unless stated otherwise or directed by the Consultant, the Contractor shall provide all superintendence, labour, materials, plant, Contractor’s Equipment and all other things, whether of a temporary or permanent nature, required in and for such design, execution, completion and remedying of any defects.
The Contractor shall provide all water required for the Works including that required by Sub-contractors from whatsoever source may be available, pay all fees and charges and provide all temporary storage and plumbing. The onus is on the Contractor to investigate and ensure that such water is available.
The Contractor shall give prompt notice to the Consultant of any error, omission, fault or other defect in the design of or Specification for the works which he discovers when reviewing the Contract or executing the Works.
The Contractor shall take full responsibility for the adequacy, stability and safety of all Site operations and methods of construction. The Contractor shall not however be responsible (except as stated hereunder or as may be otherwise agreed) for the design or specification of Permanent Works, or for the design or specification of Temporary Works not prepared by the Contractor.
For scope and duration of Maintenance Period, see Section 1.
The Contractor and his staff shall maintain strict confidentiality in respect of all information, data, documents and finances relating to this contract. This implies throughout the duration of the contract and following its completion.
The Contractor shall not assign or sublet the Contract or any part thereof unless authorised in writing by the Consultant.
At the start of the contract the Contractor is to submit to the Consultant for approval by the Employer a Performance bond to the sum of 10% of the total value of the works in the form as in Annex B or in such a form as may be agreed between the Employer and the Contractor. The Institution providing such security shall be subject to the approval of the Employer. The cost of complying with the requirements of this clause shall be borne by the contractor.
The performance bond shall be valid until the Contractor has executed and completed the Works and remedied any defects therein in accordance with the Contract. The need for performance bond to be extended into the Maintenance Period will be reviewed based on the performance of the Contractor. No claim shall be made against such security after the issue of the Completion Certificate in accordance with Clause 14.8 and such security shall be returned to the Contractor within 14 days of the issue of the said Completion Certificate.
The Consultant may omit/ amend the above at his discretion following a written request with justification from the Contractor.
At the start of the contract the Contractor is to submit to the Consultant for approval by the Employer an advance Guarantee in a form as in Annex C or in a form as may be agreed with the Engineer being to the sum of 30% of the advance deducted from each interim payment until the full value of the works. The Contractor has the option to have a percentage of the advance deducted from each interim payment until the full value or advance has been repaid in which case with each sum deducted from the original 30% advance the validity of the Bond can be reduced accordingly. The Bond must however always stay valid up to the value of the advance still outstanding.
The Contractor is strongly encouraged to inspect and examine the Site and its surroundings and information available in connection therewith and to have satisfied himself before submitting his Tender, as to:
a) The form and nature of the Site.
b) The extent and nature of the work and materials necessary for the execution and completion of the Works and the remedying of any defects therein.
c) The means of access to the Site.
d) The sources of his labour
And, in general, shall be deemed to have obtained all necessary information as to the risks, contingencies and all other circumstances which may influence or affect his Tender. No claims will be entertained on grounds associated with failure of the Contractor to observe this condition.
The Contract shall be considered as being in force from the date of signing of Contract Agreement. The Contractor shall commence work within the time stated in the Form of Tender in Section 4.
Unless it is legally or physically impossible, the Contractor shall execute and complete the works and remedy any defects therein in strict accordance with the Contract to the satisfaction of the Consultant. The Contractor shall comply with and adhere strictly to the Consultant’s instruction on any matter, whether mentioned in the Contract or not, touching or concerning the Works. The Contractor shall take instructions only from the Consultant or his Representative.
The Contractor shall, prior to the commencement of the works submit to the Consultant and Employer for their consent, a programme, in such a form and detail as the Consultant shall reasonably prescribe, for the execution of the works. The Contractor shall, whenever require by the Consultant, also provide in writing, for his information, a general description of the arrangements and methods, which the contractor proposes to adopt for the execution of the works.
If at any time it should appear to the Consultant that the actual progress of the Works does not conform to the programme to which consent has been given, the Contractor shall produce, at the request of the Consultant, a revised programme showing the modifications to such programme necessary to ensure completion of the Works within the Time for Completion.
If the Contractor does not intend to be on site full time he is to submit to the Consultant the name of a competent representative who must be approved by the Consultant and whose approval can be withdrawn at any time. The Contractor or his authorised representative shall give his whole time to the superintendence of the Works. Such authorised representative shall receive, on behalf of the Contractor, instructions from the Consultant.
If the approval of the representative is withdrawn by the Consultant, the Contractor shall, as soon as is practicable after receiving notice of such withdrawal, remove the representative from the Works and shall replace him by another representative approved by the Consultant.
The Contractor shall provide on the Site in connection with the execution and completion of the Works and the remedying of the defects therein:
a) Only such technical assistants as are skilled and experienced in their respective callings and such foremen and leading hands as are competent to give proper superintendence of the Works, and.
b) Such skilled, semi-skilled and unskilled labour as is necessary for the proper and timely fulfilling of the Contractor’s obligations under the Contract.
The Consultant shall be at liberty to object to and require the Contractor to remove forthwith from the Works any person provided by the Contractor who in the opinion of the Consultant, misconduct’s himself, or is incompetent or negligent in the proper performance of his duties, or whose presence on Site is otherwise considered by the Consultant to be undesirable, and such person shall not be again allowed upon the Works without the consent of the Consultant. Any person so removed from the works shall be replaced as soon as possible.
The Contractor shall be responsible for the correctness of the position, levels dimensions and alignment of all parts of the Works. The checking of any line or level by the Consultant’s representative shall not in any way relieve the contractor of his responsibility for the accuracy thereof.
The Contractor shall, throughout the execution and completion of the Works and the remedying of any defects therein:
a) Have full regard for the safety of all persons entitled to be upon the Site by ensuring appropriate safety measures are provided in all areas of work at all times and by keeping the Site and the Works in an orderly state appropriate to the avoidance of danger to such persons.
b) Provide and maintain at his cost measures deemed necessary or required by the Consultant or by any duly constituted authority, for the protection of the Works or for the safety and convenience of the public or others, and.
c) Take all reasonable steps to protect the environment on and off the Site and to avoid damage or nuisance to persons or to property of the public or others resulting from pollution, noise or other causes arising as a consequence of his methods of operation.
The Contractor shall provide and equip, as appropriate, all workers in hazardous occupations with protective clothing, gloves, goggles masks, footwear and headgear manufactured to such a standard as to ensure adequate protection against injury and accident. The cost of such equipment should be allowed for in the Bill.
The Contractor shall provide and maintain adequate first aid facilities appropriate to the conditions and scope of the works, and shall submit for the Consultant’s approval details of those facilities and the means by which full access to them and their administration will be provided.
The Contractor shall, within 24 hours of the occurrence of any accident on the site or in connection with the execution of the Works, report such an accident to the Consultant’s Representative. The Contractor shall also report any such accident to the competent authority whenever such a report is required by law.
The Contractor shall take full responsibility for the care of the Works and materials and Plant for incorporation therein from the Commencement Date until the date of issue of the Completion Certificate.
If any loss or damage happens to the to the Works, or materials, or plant during the period for which the Contractor is responsible for the care thereof, from any cause whatsoever, other than the risks defined under clause 4.28, the Contractor shall, at his own cost, rectify such loss or damage so that the Permanent Works conform in every respect with the provisions of the Contract to the satisfaction of the Consultant.
In the event of any such loss or damage happening from any of the risks defined in clause 4.28, or in combination with other risks, the Contractor shall, to the extent required by the Consultant, rectify the loss or damage and the Consultant shall determine an addition to the Contract Price in accordance with clause 10.5 and shall notify the Contractor accordingly.
The Employer’s risks are;
a) War, hostilities (whether war be declared or not), invasion, act of foreign enemies.
b) Rebellion, revolution, insurrection, or military or usurped power, or civil war.
c) Riot, commotion or disorder, unless solely restricted to employees of the Contractor and arising from the conduct of the Works.
d) Loss or damage due to the use or occupation by the Employer of any section or part of the Permanent Works.
e) Any operation of the forces of nature against which an experienced Contractor could not reasonably have been expected to take precautions.
The Contractor shall, without limiting his or the Employer’s obligations under clause 4.25, insure;
a) The Works, together with materials and plant for incorporation therein, to the full replacement cost.
b) An additional 15% of such replacement cost to cover any additional costs of and incidental to rectification of loss or damage.
c) The Contractor’s Equipment and any other things brought onto the Site by the Contractor, for a sum sufficient to provide for their replacement at the Site.
The insurance in paragraphs a) and b) of clause 4.29 shall be in the joint names of the Contractor and the Employer and shall cover;
a) The Employer and the Contractor against all loss or damage from whatsoever cause arising, other than as provided in clause 4.31 from the start of the work at the Site until the date of issue of the relevant Completion Certificate in respect of the Works.
b) The Contractor for his liability during the Maintenance Period for loss or damage arising from a cause arising prior to the commencement of the Maintenance Period and for loss or damage occasioned by the Contractor in the course of any operations carried out by him for the purpose of complying with his obligations under clause 9.
Any amounts not insured or not recovered from the insurers shall be borne by the Employer or the Contractor in accordance with their responsibilities under cause 4.25 to 4.28.
There shall be no obligation for the insurance in clause 4.29 to include loss or damage caused by;
a) War, hostilities (whether war be declared or not), invasion, act of foreign enemies.
b) Rebellion, revolution, insurrection, or military or usurped power, or civil war.
The Contractor shall indemnify the Employer against all losses and claims in respect of:
a) Death of or injury to any person, or
b) Loss of or damage to any property (other than the works),
Which may arise out of or in consequence of the execution and completion of the Works and the remedying of any defects as instructed, and against all claims, proceedings, damages, costs, charges and expenses subject to the exceptions defined in clause 4.34.
The ‘exceptions’ referred to in sub-clause 4.33 are:
a) Damage to property which is the unavoidable result of the execution and completion of the Works, or remedying of any defects therein, in accordance with Contract, and
b) Death or injury to persons or loss of or damage to property resulting form any act of neglect of the Employer, his agents, servants or other contractors, not being employed by the Contractor.
The contractor shall insure in the joint names of the Contractor and the Employer, against liabilities for death or injury to any person (other than as provided in clause 4.37 and 4.38) or loss or damage to any property (other than the Works) arising out of the performance of the Contract, other than the exceptions defined in paragraphs a), b) and c) of clause 4.34.
The minimum value of the third party insurance referred to in clause 4.35 should be Le 10,000,000 (Ten million Leones). The Employer may amend the value of this insurance at her discretion following a written request with justification from the Contractor.
The Employer shall not be liable for or in respect of any damages or compensation payable to any workman or other person in the employment of the Contractor or any subcontractor, other than death or injury resulting from any act or default of the Employer, his agents or servants. The Contractor shall indemnify and keep indemnified the Employer against all such damages and compensation, other than those for which the Employer is liable. The Contractor shall insure against such liability and shall continue such insurance during the whole of the time that any persons are employed by him on the Works.
The Contractor shall insure against such liability and shall continue such insurance during the whole of the length of time that any persons are employed by him on the Works.
The Contractor shall provide to the Employer, prior to the work at the Site, the insurance policies required under clauses 4.29, 4.35 and 4.38. The insurance under clause 4.35 is mandatory. The insurances under clause 4.29 and 4.38 are not mandatory but the risk of omission is fully borne by the Contractor.
The Contractor shall notify the insurers of changes in the nature, extent or programme for the execution of the Works and ensure the adequacy of the insurances at all time in accordance with the terms of the Contract and shall, when required, produce to the Employer the insurance policies in force and the receipts for payment of the current premiums.
If the Contractor fails to effect and keep in force any of the insurances required under the Contract, or fails to provide the policies to the Employer within the period required under sub-clause 4.39, then and in any such case the Employer may effect and keep in force any such insurances and pay any premium as may be necessary for that purpose and from time to time deduct the amount so paid from any monies due or to become due to the Contractor, or recover the same as a debt due from the Contractor.
The Contractor shall conform in all respects, including by the giving of all notices and the paying of all fees, with the provision of;
a) Any National or state statue, Ordinance, or other Law, or any regulation, or bye law of any local or other duly constituted authority in relation to the execution and completion of the Works and the remedying of any defects therein, and
b) The rules and regulations of all public bodies and companies whose property or rights are affected or may be affected in any way by the Works.
The Contractor shall be required to pay all taxes either existing or if any become due in respect of this Contract under the income Tax Laws of Sierra Leone.
Except where otherwise stated, the Contractor shall pay all tonnage and other royalties, rent and other payments or compensation, if any for getting stone, sand, gravel, clay or other materials required for the Works.
All operations necessary for the execution of the Works and the remedying of any defects therein shall, so far as compliance with the requirements of the Contract permit, be carried on so as not to interfere unnecessarily or improperly with:
a) The convenience of the public, or
b) The access to, use and occupation of public or private roads and footpaths to or of properties whether in the possession of the Client or any other person.
During the execution of the works the Contractor shall keep the Site reasonably free from all unnecessary obstructions and shall store or dispose of any Contractor’s Equipment and surplus materials and clear away and remove from the Site any wreckage, rubbish or Temporary Works no longer required.
The Contractor and his staff shall refrain from political, religious and other statements and activities that may compromise the co-operation between Employer and Sierra Leonean Government and other international officials.
The Contractor shall give the Consultant full co-operation in monitoring operations under this contract.
The Contractor shall give the Consultant access to timesheets where direct labour is employed.
The Contractor is required to prepare, erect and maintain throughout the course of the Works one signboard conforming to the details provided by the Consultant and attached in annex D.
The Contractor shall include for painting the board, all lettering thereon and repainting as necessary to maintain an appearance satisfactory to the Consultant.
The Contractor is prohibited from displaying or permitting the display of any other boards or advertisements.
The Contractor may be requested to submit copies of invoices and other supporting documentation on the request of the Consultant to substantiate that any advance payment has been used solely for the purchase of goods and services in connection with the carrying out the Works.
All goods and fittings delivered to the site shall be received into the charge of the Contractor, who shall satisfy himself that they are sound, correct and in good order and he shall replace at his own cost all fittings found to be damaged on completion.
Any rock, etc. obtained from the execution is to be the property of the Employer and may, if approved, be used on the Works, the quantity is to be measured and value assessed by the Consultant and deducted from the Contract Sum.
The Contractor is prohibited from specifically excavating for rock on the site.
Any materials other than filling which are discovered upon the site during the excavation and the like and which are suitable for incorporation in the Permanent Works may only be used with the prior written permission of the Consultant.
Should any useful building materials or articles of value, antiquarian or otherwise be uncovered or discovered during the progress of the work, the Consultant must be notified immediately and all such materials shall be disposed of or removed at the absolute discretion and in accordance with the instructions of the Consultant. All such materials remain the property of the Client.
- Inspection and Approval of the Works.
A joint inspection/inventory of the Site shall undertaken by the Contractor, Consultant and Employer prior to the Contractor commencing work and any items likely to affect the Works or to be damaged as a result of the Works are to be identified and recorded.
During the joint inspection the location of the water wells and all latrines where applicable shall be agreed.
A joint inspection of the site shall be undertaken by the Contractor, Consultant and Employer upon completion of the Works. If found to be satisfactory, the Consultant will issue the Maintenance Certificate to initiate the commencement of the Maintenance Period.
A joint inspection of the works shall be undertaken by the Contractor, Consultant and the Employer prior to the expiry of the Maintenance Period and any outstanding work is to be undertaken before acceptance of the Works. On acceptance of the works a Completion Certificate will be issued to signify the end of the Maintenance Period.
The Contractor is required to employ local community labour to undertake the Work. A maximum of 20% from other sources is allowed. However, the contractor is under no obligation to continue the employment of individual workers who do not perform to an acceptable level of competence or output but is required to replace these said individuals with further local community labour such that there is never more than 20% labour from other sources.
The Contractor will liase closely with local community groups to identify and employ an appropriate number of local community members during the Contract period.
The Contractor shall make his own arrangements for payment, housing, feeding and transporting of staff and labour.
Children as defined by the Government regulation shall not be employed under any circumstances.
The Contractor shall pay rates of wages not less favourable than those approved by the Government for the various classes of labour engaged. All payments shall be in cash unless employees request, in writing, payment by cheque or other negotiable financial instrument. Payment in kind or through trade goods of any sort are prohibited. Food rations, accommodation, or any other allowances will be over and above cash wages complying with the minimum levels described. Men and women shall receive equal rates of pay for the grade of work, trade, or skill for which they are employed.
The Contractor shall pay his/her employees promptly and regularly at the customary intervals, or as may be prescribed by law, and all employees shall be paid in full and up to date before the issue of the Maintenance Certificate.
In the event of default being made in payment of wages to any worker employed on the Contract, by the contractor or his/her sub-contractor(s), and, if a claim with satisfactory proof thereof is received by the Consultant, the Employer may make the payment of such a claim out of the monies at any time payable under the Contract, and the amount so paid shall be deemed payments to the Contractor or Sub-Contractors under the Contract.
The Contractor and Sub-Contractors shall provide on site, throughout working hours, adequate and easily accessible supplies of safe drinking water and other water for the use of their employees.
The Contractor shall ensure the provision of adequate and nutritious food at an affordable cost to all workers engaged on the works, and provide a suitable clean area appropriately furnished for the consumption of food.
The Contractor shall provide and maintain efficient, adequate and sanitary latrine and washing facilities for the use of the employees on the works (even if this just means a cordoned off area for privacy), with separate arrangements for men and women, and shall keep the whole of the site and latrines in a clean and sanitary condition to the satisfaction of the Consultant, and in accordance with the requirements of the health authorities of the Government. The Contractor shall thoroughly disinfect and fill all latrine pits, swamps and trenches when no longer required.
In the event of any outbreak of illness of an epidemic nature, the Contractor shall comply with and carry out any such regulation, orders and requirements as may be made by the Government or the local medical or sanitary authorities for the purpose of dealing with such an epidemic
The Contractor shall at all times, during the continuance of the contract, display in conspicuous places on the site or in any other place occupied by him/her for the execution of the contract, in convenient, prominent, and accessible positions or locations, notices informing employees of the foregoing provisions of this Clause and their conditions of work.
The Contractor shall keep proper records of the days, dates, and hours worked by every employee engaged on the Contract, their gender, the class of work on which employed, whether as a casual or permanent employee, and the wages (and allowances, if any), paid. These records shall be available at any time for inspection by the Employer, Consultant or his representative. Monthly summaries in a format to be agreed by the Consultant should be submitted.
- Materials and Workmanship
The Works will be inventoried and inspected by the Consultant or his Representative at regular intervals to ascertain that satisfactory progress is being made and that the Works are being undertaken in accordance with the Contract in all respects.
The Consultant’s Representative shall carry out inspections of the Works as necessary to asses their compliance with the Specification. Any approval by the Consultant or his Representative does not relieve the Contractor of his contractual or any other liabilities or responsibilities.
Should the Contractor fail to comply with the Consultant or his Representative’s instruction to correct faulty workmanship within seven (7) days, the Consultant shall issue a formal notice to the Contractor and copy such instruction to the Contractor’s files for record purposes. The Consultant may elect to have remedial works carried out by others. The costs of such work shall be subtracted from any amounts due to the Contractor.
Where a Contractor repeatedly fails to fulfil his obligations under the Contract, the consultant shall prepare a report advising the Employer of the matter for consideration in terminating the Contract.
The Consultant or his Representative shall have the authority to issue instructions from time to time for:
a) The removal from the Site, within such time or times as may be specified in the instruction, of any materials or Plant, which, in the opinion of the Consultant, are not in accordance with the contract,
b) The substitution of proper and suitable materials or plant, and
c) The removal and proper re-execution, notwithstanding any previous test thereof or interim payment therefore, of any work which, in respect of materials, plant or workmanship, design by the Contractor for which he is responsible, is not in the opinion of the Consultant, in accordance with the Contract.
d) The Consultant’s Representative shall however have a financial limit for any instructions/variations he is permitted to give without first seeking the approval of the Consultant.
e) This financial limit will be notified to the Contractor in writing.
The Contractor shall be liable for the cost of any and all materials testing where such tests are required in the Specification.
The Contractor shall be liable, at his cost, for the repair and/or replacement of all works found to be not in compliance with the Specification and/or that has not been constructed to the approval of the Consultant or his Representative during the period of the Works and/or who do not perform to an acceptable level of competence and/or output.
- Commencement and Delays
The Contractor shall commence the Works by the Commencement Date as stated in the Tender. There after, the Contractor shall proceed with the Works with due expedition and without delay
The whole of the Works shall be completed within the Time for Completion as stated in the Tender, calculated from the Commencement Date, or such extended time as may be allowed under Clause 8.3
In the event of:
a) The amount or nature of extra or additional work,
b) Any cause of delay referred to in these Conditions,
c) Exceptionally adverse climatic Conditions,
d) Any delay, impediment or prevention by the Consultant, or
e) Other special circumstances, which may occur, other than through default of breach of contract by the Contractor or for which he is responsible.
The Contractor shall be entitled to an extension of time for the completion of the Works .The Consultant, after due consultation with the Contractor, shall determine the amount of such extension and shall notify the Contractor accordingly.
None of the Works shall, save as hereinafter provided, be carried out during the night or on locally recognised days of rest without the consent of the Consultant, except when work is unavoidable or absolutely necessary for the saving of life or property or for the safety of the Works, in which case the Contractor shall immediately advise the Consultant.
If for any reason, which does not entitle the Contractor to an extension of time, the rate of progress of the Works, in the opinion of the Consultant, is too slow to comply with the Time for Completion, the Consultant shall notify the Contractor who shall thereupon take such steps as are necessary, subject to the consent of the Consultant, to expedite progress so as to comply with the Time for Completion. The Contractor shall not be entitled to any additional payment for taking such steps. If, as a result of any notice given by the Consultant under this Clause, the Contractor considers that it is necessary to do any work at night or on locally recognised days of rest, he shall be entitled to seek the consent of the Consultant to do so.
If the Contractor fails to comply with the Time for Completion in accordance with Clause 8.7, for the whole of the Works and in the time frame laid out in the Tender he shall be liable to a penalty of 0.15% of the contract value (excluding contingencies) for each day such works remain outstanding. The maximum penalty for such liquidated damages shall be 5% of the contract value. This penalty will not effect the retention payment or reduce the Maintenance Period. The employer may, without prejudice to any other method of recovery, deduct the amount of such damages from any monies due or to become due to the Contractor. The payment or deduction of such damages shall not relieve the Contractor from his obligation to complete the Works, or from any other of his obligations and liabilities under the Contract.
When the whole of the Works have been substantially completed and a joint inspection carried out in accordance with clause 5.3 the Contractor may give notice to that effect to the Consultant accompanied by a written undertaking to finish with due expedition any outstanding work during the Maintenance Period. Such notice and undertaking shall be deemed to be a request by the Contractor for the Consultant to issue a Maintenance Certificate in respect of works. The Consultant shall, within 5 working days of the date of delivery of such a notice, either issue to the Contractor a Maintenance Certificate, stating the date on which, in his opinion, the Works were substantially completed in accordance with the Contract, or give instructions in writing to the Contractor specifying all the work which, in the Consultant’s opinion, is required to be done by the Contractor before the issue of such Certificate.
- Maintenance Period
In these Conditions the expression “Maintenance Period” shall mean the maintenance period named in Section 1 calculated from the date of the completion of Works certified by the consultant in accordance with Clause 8.7.
The Works shall, at or as soon as practicable after the expiration of the Maintenance Period, be delivered to the Client in the condition required by the Contract, fair wear and tear excepted, to the satisfaction of the Consultant, the Contractor shall:
a) Complete the work, if any, outstanding on the date stated in the Maintenance Certificate as soon as practicable after such date, and
b) Execute all such work of amendment, reconstruction, and remedying defects, shrinkages or other faults as identified by the Consultant during the joint inspection referred to in clause 5.4, during the Maintenance Period or within 7 days after its expiration.
In case of default on the part of the Contractor in carrying out such instruction within a reasonable time, the Consultant shall be entitled to employ and pay other persons to carry out such work . If the Contractor, in the opinion of the Consultant , was liable for such work under the contract, then all the costs shall be recoverable from the Contractor by the Employer, and will be deducted by the Employer from any monies due or to become due to the Contractor.
- Alterations, Additions and Omissions
The Consultant shall have the authority to instruct the Contractor to make any variation of the form, quality or quantity of the works or any part thereof that may, in his opinion, be necessary. Such variations can include any of the following:
a) Increase or decrease the quantity of any work included in the Contract
b) Omit any such work (but not if the omitted work is to be carried out by the Employer or by another Contractor)
c) Change the character or quality or kind of any such work,
d) Change the levels, lines, position and dimensions of any part of the Works,
e) Execute additional work of any kind necessary for the completion of the Works, or
f) Change any specified sequence or timing of construction of any part of the Works.
Not such variation shall in any way vitiate or invalidate the Contract, but the effect, if any, of all such variations shall be valued in accordance with Clause 10.5
Where the issue of an instruction to vary the works is necessitated by some default of or breach of contract by the Contractor or for which he is responsible, any additional cost attributed to such default shall be borne by the Contractor.
If the Contractor deems that any work is necessary and is not shown in, or exceeds the contingency sum in the Bill of quantities, the Contractor shall apply for a variation to the Contract. The Contractor shall not make any such variations without an instruction from the Consultant.
A Variation Order, if approved, will be issued by the Consultant for increase in price and quality. No work will be paid for until a variation Order is authorised.
All variations referred to in Clause 10.1 and any additions to the Contract Price shall be valued at the rates and prices set out in the Contract, if in the opinion of the Consultant, the same shall be applicable. If the Contract does not contain any rates or prices applicable to the varied work, the rates or prices in the Contract shall be used as the basis for valuation so far as may be reasonable. Suitable rates or prices shall be agreed upon between the Consultant and the Contractor. In the event of disagreement the Consultant shall fix such rates and prices.
- Procedures for Claims
Notwithstanding any other provision of the Contract, if the Contractor intends to claim any additional payment pursuant to any clause of these Conditions or otherwise, he shall give notice of his intention to the Consultant within 7 days after the event, giving rise to the claim, has first arisen.
The Contractor shall keep such records as reasonably be necessary to support any claim he may wish to make. Within 7 days of giving notice as under clause11.1 the Contractor shall send to the Consultant an account giving detailed particulars of the amount claimed and the grounds which the claim is based.
The Contractor shall be entitled to have included in any interim payment certificate prepared by the Consultant such amount in respect of any claim as the Consultant may consider due to the Contractor provided the Contractor has supplied sufficient particulars to enable the Consultant to determine the amount due
The quantities set out in the Bill of Quantities are the estimated quantities for the Works, and they are not to be taken as the actual and correct quantities of the Works to be executed by the Contractor in fulfilment of his obligations under the Contract and are subject to alteration or omission.
The Consultant shall, except as otherwise stated, ascertain and determine by measurement the value of the Works in accordance with the Contract and the Contractor shall be paid that value in accordance with Clause 14.3. The Consultant or Consultant’s Representative shall, when they require any part of the Works to be measured, give reasonable notice to the Contractor’s authorised agent, who shall:
a) Forthwith attend or send a qualified representative to assist the Consultant in making such measurement, and
b) Supply all particulars required by the Consultant.
Should the Contractor not attend, or neglect or omit to send such representative, then the measurement made by the Consultant or his Representative shall be taken to be the correct measurement of such part of the Works.
For the purpose of measuring such Permanent Works as are to be measured by records and drawings, the Consultant or his Representative shall prepare records and drawings as the work proceeds and the Contractor, as and when called upon to do so in writing, shall, within seven 7 days, attend to examine and agree such records and drawings with the Consultant and shall sign the same when so agreed. If the Contractor does not attend to examine and agree such records and drawings, they shall be taken to be correct. If, after examination of such records and drawings, the Contractor does not agree the same or does not sign the same as agreed, they shall nevertheless be taken to be correct unless the Contractor, within 7 days of such examination, lodges with the Consultant notice of the respects in which such records and drawings are claimed by him to be incorrect. On receipt of such notice, the Consultant shall review the records and drawings and either confirm or vary them.
All foundation works and external works are provisional and shall be re-measured as executed on site. The word ‘provisional’ is issued in the Bill of Quantities where detailed information was not available at the time of the Bill preparation and such items will be liable to re-measurement before the completion of the Contract.
- Contingency Sums
‘Contingency Sums’ means a sum included in the Contract and so designated in the Bill of Quantities for the execution of any part of the Works or for the supply of goods, materials, Plant or services, or for other contingencies, which sum may be used, in whole or in part, or not at all, on the instructions of the Consultant
No expenditure may be made against Contingency Sum unless instructed by the Consultant in writing beforehand.
In respect of every Contingency Sum the Consultant shall have authority to issue instructions for the execution of work or for the supply of goods, materials, Plant or services by the Contractor, in which case the Contractor shall be entitled to an amount equal to the value thereof determined in accordance with clause10.5
The Contractor shall produce to the Consultant all quotations, invoices, vouchers and accounts or receipts in connection with expenditure in respect of Contingency Sums, except where work is valued in accordance with rates or prices set out in the Tender.
Not additional work or tasks, extra to those covered by the Total Contract Sum, will be made unless authorised in writing by the Consultant.
- Certificates and payment
The Consultant at the end of each month shall carry out a measurement of the Works in accordance with clause 12.2. This should agreed with the Contractor’s Representative and show the amounts to which the Contractor is entitled in respect of:
a) The value of the Permanent works executed,
b) Any other items in the Bill of quantities including those for Contractor’s Equipment, Temporary Works, and the like,
c) Any other sum to which the Contractor may be entitled under the Contract or otherwise such as variations.
The Consultant shall, within 14 days of carrying out this valuation, deliver to the Employer an Interim Payment Certificate stating the amount of payment to the Contractor which the Consultant considers due and payable in respect of such statement, subject:
a) Firstly, retention of 10% of the amount to which the Contractor is entitled under paragraphs (a), (b) and (c) of Clause 14.1, and
b) Secondly, to the deduction, other than pursuant to Clause 8.6 of any sums which may have become due and payable by the Contractor to the Employer.
Notwithstanding the terms of this Clause or any other Clause of the Contract no amount will be certified by the Consultant for payment until the performance security, if required under the Contract, has been provided by the Contractor and approved by the Employer.
The Consultant may by any Interim Payment Certificate make any correction or modification in any previous Interim Payment Certificate, which shall have been issued by him and shall have authority, if any work is not being carried out to his satisfaction, to omit or reduce the value of such work in any Interim Payment Certificate
Upon the issue of the Maintenance Certificate in respect to the whole of the Works, one half of the Retention Money, or upon the issue of a Maintenance Certificate with respect to a section or part of the Permanent Works only such portion thereof as the Consultant determines having regard to the relative value of such section or part of the Permanent works, shall be certified by the Consultant for payment to the Contractor.
After the issue of the Maintenance Certificate in respect of the whole of the Works, the Contractor shall submit to the Consultant a statement of Completion with supporting documents showing in detail, in a form approved by the Consultant:
a) The final value of all work done in accordance with the Contract up to the date stated in such Maintenance Certificate,
b) Any further sums which the Contractor considers to be due, and
c) An estimate of amounts which the Contractor considers will become due to him under the Contract.
Upon the expiration of the Maintenance Period and completion of all work instructed in respect of the Works the Employer shall issue a Completion Certificate which shall signify the end of the Maintenance period and the other half of the retention Money shall be paid to the contractor.
The Completion Certificate shall not be issued to the Contractor if the Contractor has not executed all work instructed in respect of the Works during the Maintenance Period in accordance with clause 9. The Employer shall be entitled to withhold payment until completion of such work of so much of the balance of the Retention Money as shall, in the opinion of the Consultant, represent the cost of the work remaining to executed.
After the issue of the Completion Certificate the Contractor shall submit to the Consultant for consideration a final statement with supporting documents showing in detail, in the form approved by the Consultant:
a) The value of all work done in accordance with the Contract, and
b) Any further sums which the Contractor considers to be due to him under the Contract or otherwise
If following discussions between the Consultant and the Contractor and any changes to the draft final statement may be agreed between them, it becomes evident that a dispute exists, the Consultant shall deliver to the Employer an Interim Payment Certificate for those parts of the draft final statement, if any, which are not in dispute. The dispute may then be settled in accordance with Clause17.
Upon submission of the Final Statement, the Contractor shall give to the Employer, with a copy to Consultant, a written discharge confirming that the total of the Final Statement represents full and final settlement of all monies due to the Contractor arising out of or in respect of the Contract. Provided that such discharge shall become effective only after payment due under the Final Payment Certificate issued pursuant Clause 14.10 has been made and the performance security referred to in Clause 4.7 and 4.8, if any, have been returned to the Contractor.
Within 14 days after receipt of the Final Statement, and the written discharge, the Consultant shall issue to the Employer (with a copy to the Contractor) a Final Payment Certificate stating:
a) The amount which, in the opinion of the Consultant, is finally due under the Contract or otherwise, and
b) After giving credit to the Employer for all amounts previously paid by the Employer and for all sums to which the Employer is entitled other than under Clause 8.6, the balance, if any, due from the Employer as the case maybe.
The Employer shall not be liable to the Contractor for any matter or thing arising out of or in accordance with the contract or execution of the Works, unless the Contractor shall have included a claim in respect thereof in his Final Statement and (except in respect of matters or things arising after the issue of the Maintenance Certificate in respect of the whole of the Works) in the Statement at Completion referred to in Clause 14.6
The amount due to the Contractor under any Interim Payment Certificate issued by the Consultant pursuant to this Clause, or to any other term of the Contract, shall, subject to Clause 8.6, be paid by the Employer to the Contractor within 14 days after such Interim payment Certificate has been delivered to the Employer, or, in the case of the Final Payment Certificate referred to in sub-Clause 14.12, within 28 days, after such Final Payment Certificate has been delivered to the Employer. In the event of the failure of the Employer to make payment within the time stated, the Employer shall pay to the Contractor interest upon all sums unpaid from the date by which the same should have been paid.
Only the Completion Certificate, referred to in Clause 14.15, shall be deemed to constitute approval of the Works.
The Contract shall not be considered as completed until the Completion Certificate has been issued, stating the date on which the Contractor shall have completed his obligations to execute and complete the works and remedy and defects therein to the Consultant’s satisfaction.
Notwithstanding the issue of the Maintenance Certificate, the Contractor and Employer shall remain liable for the fulfilment of any obligation incurred under the provisions of the Contract prior to the issue of the Maintenance Certificate which remains unperformed at the time such Maintenance Certificate is issued and, for the purposes of determining the nature and extent of any such obligation, the Contract shall be deemed to remain in force between the parties to the Contract.
If the Contractor fails to commence the work or fails to proceed with the works in accordance with the approved programme such that the Contractor will not be able to complete the task/work and has not submitted the reason for any delay within 72 hours of their happening, the Contract shall be terminated within seven days by notice in writing from the Employer.
The Contractor shall be paid for approved works already completed less advances outstanding. Where the amount is insufficient to cover the advance, the relevant bond(s) will be called.
Termination of the Contract through the Default of the Contractor will incur the calling of the Performance Bond by the Employer.
If the Contractor fails to complete the Works to the satisfaction of the Consultant, the Employer may terminate the Contract within seven days of notice of such to the Contractor and to deduct any costs incurred in correcting the fault(s) from any outstanding monies due to the Contractor or to call on the Performance Bond.
The Contract may be terminated by seven day’s notice from the Employer. If the Contract is terminated, the Contractor shall be paid for all works satisfactorily completed before the termination less any amount owed to the Employer under the Contract.
- Force Majeure
Should the Contractor be forced to stop work and abandon the site due to circumstances of civil unrest or war, he shall qualify for compensation of equipment & other material supplied under the contract and payment for any works duly completed to the approval of the Consultant’s Representative. The compensation is to be negotiated with the Consultant. Furthermore, the Contractor shall not be considered to be in Default of the Contract.
The parties undertake to act in good faith with respect to each other’s rights under this contract and to adopt all reasonable measures to ensure the realisation of the objectives of this Contract
The parties recognise that it is impractical in this Contract to provide for every contingency which may arise during the life of the Contract, and the parties hereby agree that it is their intention that this Contract shall operate fairly as between them, and without detriment to the interest of either of them, and that, if during the term of this Contract either Party believes that this Contract is operating unfairly, the Parties will use their best efforts to agree on such action as may be necessary to remove the cause of unfairness.
If any dispute should arise with regard to this Contract which cannot be settled amicably between the two parties, then such dispute shall be submitted to arbitration by an independent arbitrator acceptable to both parties. In the event that a mutually agreed independent arbitrator cannot be identified, then an arbitrator shall be selected in accordance with the applicable laws of Sierra Leone at the time of the dispute.