2.0 Architect Instruction (AI)
2.1 Contractor to comply with AI that has been emplowered to be issued.
- Comply" does not necessary mean Contractor have to carry out the instruction forthwith. So long as the Contractor acts on the instruction, he deemed to have complied-e.g. if Contractor has query on the instruction, to seek clarification or further explanation.
- Architect can delegate his dueties/ authorities in writing to another Consultant, including issuance of instruction - provided for under Article 4 and 7 . Only relevant Consultants can issue instruction to Contractor e.g. M&E engineer cannot instruct on pilling.
- Employer/ his representative and site staffs cannot issue instructions. Employer requirements be conveyed through Architect via AI.
- No provision for Architect to instruct Stop Work Order.
2.2 Instructin be writing and titled " AArchitect's Instruction". Other forms e.g. drawing, minutes of meetingsetc, can be Ai if :
(a) Contractor confirm them in writing to Architect in ' Confirmation of Architect's Instruction". (CAI), or
(b) Architect confirms it with AI.
- Architect's / other consultant's letter, minutes of site meeting, recording in site diary and VO consider as other written forms ?
2.3 If Contractor is doubful of Architect's right to issue an instruction, Contractor can request Architect to specify clauses AI issued under. If Contractor then complies AI without questioning whether clauses correct, then such AI deemed given under the rightful clause.
2.4 If Contractor does not complied AI within specifying time which shall be minimum 7 days. Employer can pay other Person to carry out AI. Cost involved, including additional cost be set-off by Employer.
- Contractor can dispute such cost if found unfair.
- Ratjer tjam emgaging other Person straight away when Contractor not comply AI, case law requires Employer, through Architect to write to Contractor stating intention to employ other Person, specifying cost . Only if Contractor still not complies another 7 days, can Employer employ other Person.
3.0 Contract Document, Programme and As-built drawings.
3.1 Sections of Contracts Documents explain each other . Conflict / inconsistencies found be given the following order of importance :
(a) from Letter of Award (LA), to
(b) Articles of Agreements
(e) Contract Bills
(D) any other documents.
3.4 Contractor to apply in writting in sufficient time to Architect requesting for further construction drawings or info, etc.
- " Sufficient time" can be subject to dispute. TO avaoid dispute and delay to construction works, it is good practice for Contractor to study as early as possible all drawings/ documents issued to him. Request early for further drawings for clarification or amplification.
3.6 Works Programme not forms part of Contract
- Not practical to form part of Contract as the intended benefit is unenforceable or impractical i.e. with a fixed programme, cannot extend contract period even with Variations and Eot .
3.7 Architect's consent of Works Programme does not relieve Contractor of responsibilities under Contract. Architect uses Programme to monitor progress and for assessment of EoT.
- If Achitect approves Programe, Architect becomes liable for its failure.
3.10 Contractor and NSC to supply 4 sets of As- built Drawings, manual on operation and maintenance ( O & M) of works to Architect when requitred.
- Good practice for Conractor to prepare ealry because Consultants need to vet them for erros or incomplete details
- If as-built survey is required and to avoid dispute, this requirement should be specifically written into the Contract.
4.0 Statutory Obligations , Notice, Fees and Charges
4.1 Contractor complies with and submits notices required by laws, conditions, etc. of Authroities and Services Provider.
4.2 Contractor writes to Architect of inconsistencies between Contract and Laws, etc . before carrying out such works.
4.3 If Contractor not receive AI after 7 days from Architect receip of Contractor's notice, Contractor can carry out works conforming laws, which then becomes Variation.
- Contract specifies Contractor given notice to Architect only but case law requries Architect to have received notice.
4.4 Contractor pays and indemnify Employer against liability of this clause or be set-off by Employer, including additional cost.
5.0 Levels and setting out of the works
5.1 As long as Architect has issued accurate and sufficient drawings to Contractor for setting out and on required levels , it is entirely Contractor's responsibility to set out correctly at site.
- Even if Consultants/ Site Staffs inspected the setting out, it was done in good faith. No liability is involved. Contractor is still solely answerable to his own mistakes. It is better for Contractor to engage licensed land surveyor to carry out setting out . Most Consultants nsisted on this and so do some Local Authorities.
Contractor to rectify wrong setting out at own cost unless with Employer consent, Architect accepts errors. In this case, the amount equivalent to loss of value suffered by Employer or reduced cost to Contractor whichever is higher shall be set-off by Employer.
6.0 Materials, Goods & Workmanship To Conform to Description, Testing & Inspection
6.1 Works practice for Consultants to request for product catalogues, test certificates/ results , manuals , etc/ for critical materials / components like fire rated roller shitters, concrete test cubes, water proofing materials, concrete piles, etc., to ensure compliance with Contract.
6.3 AI can be issued to Contractor to open up works for inspection/ test. Cost of openings up, tests and makings good be added to Contract sum ( paid by Employer) unless:
(a) already in Contract
(b) non compliance of Contract by Contractor was found. In which case, such cost be borne by Contractor i.e. if Contractor was found using wrong materials.
(c) test/ open up required due to default / breach of Contract by Contractor.
- Before covering up critical trades, Contractor to give 2 days advance notice in writting to COnsuyltants / Site Staff for inspection, e.g. reinforcement to second floor r.c. slab before concreting, erection of roof trusses before tiling roof, to check . tes tbricks of structural wall , ensure re3quired cube results checked before laying brickwork on r.c. beams , etc.
- If Contractor did not give the necessary notice for inspection but proceeded with covering up workjs , then Consultant can instruct such works to be open up for inspection or testing . If unsatisfactory works be found , Consultant can instruct for similar works to be demolished for reconstruction. ALl cost incurred borne by Contractor, even if opened up works were found to be in order.
- On the other hand, if Contractor has given the necessary notice but Consultant did not inspect and instructed for such works be opened up later, then cost incurred be added to Contract Sum unless unsatisfactory works were found.
6.5 Rejected works and materials
(a) Architect to issue to issue instruction to Contractor to remove all demolished / rejected materials from site as soon as possible, to avoid reuse.
- Good for Contractor to comply early to avoid problems f workmen unintentionally reusing rejected material
(e) with Employer's consent, Architect can accept lower valued, non-defective works by issuing VO for reduction in value and payment to Contractor also reduced. Contractor stil liable for such works.
6.8 Even with warranty from manufacturer / proprietor of system, Contractor still liable for works as far as Contract is concerned .
7.0 Royalties and Intellecture property right
8.0 SITE AGENT
- nowadays, preferred to be known as Contractor's Representative/ Site Manager .
8.2 Any instruction / direction issued by Architect / Site Staffs to Site Agent/ assitants is deemed issued to Contractor who shall be responsible for subsequent action.
8.3 Architect has the right to instruct Contractor to dismiss Site Agent / assitants with valid reason.
10.0 Site Staff
Site Staff usually refers to CoW. Common to have resident architect / engineer for big/ complex projects. THey are also known as Site Staffs.
10.1 Site Staff employed by Employer are inspectos at site , on behalf of project Consultants. Some resident architect/ engineer may be stationed at Site as Consultants assistans or as Site Staffs. This be made known to COntractor in writing , in advance.
- Contractor is responsible to pay Site Staffs' O.T. where required.
10.2 Site Staffs can issue directions which have no effect and not be complied with by Contractor unless on matters which Architect has given written permission to Site Staff to do so . Directions involving Variations have no effect unless confirmed by AI.
11.0 VARIATIONS, PROVISIONAL AND PRIME COST SUMS
Not only apply to addition to Contract SUm but can also be omission e.g. instruction gien to do less or omit work.
Important for Consultant sand Contractor to work closely and sincerely to resolve Variations for the good of the project. A common area of dispute.
Architect cannot give Variation to omit work in order to award to others.
11.1 Variations means:
(a) changes to design, quality and quantity of works.
(b) changes to materials or goods.
(c) removal of works constructed or materials / good brought to site meant for the project.
(d) changes to provisions e.g. restrictions on working hours and space, access, non- utilization of certain part of site or the execution of works in a particular order. Exclude instruction to cure default or breach of contract by Contractor.
25 - Notice of determination is issues by Employer . If Architect issues, he must express in notice that he has been instructed by Employer to do so.
25.1 Employer can determine Contractor's employment under the Contract due to anyone of the following Contractor's default:
25.1 (a) failts to start works
25.1 (b) suspends works without contractially valid reasons
(c) Stop work, start and stop again
(d)persistently no comply with AI
(e) assign and sub-contract where not permitted by Contract
(f) abandoned works
- If a Contract is determined, it does not mean it ceases to apply i.e. it does not come to an end but remain in force. The clauses within can still be enforced. An example is Final Account still has to be prepared and settled .
25.2 Procedure to be adhered to by Employer to by Employer/ Architect to proceed with determination of Contractor's employment.
- issue written Letter/ Notice of Default to Contractor, by registered post/ hand delivery specififying Contractor default.
- Upon receipt of notice, if Contractor continue dault for 14 days , Architect can advise Employer to determinate contract within the next 10 days. If Empployer.decide on determination within this period, then Employer shall write to ｃｏｎｔｒａｃｔｏｒ by registered post/ hand delivery. Determination is effective on Contractor receiving notification. Should Employer not issues determination notice inside the 10 days, the process required of the 14 and 10 days respectively be repeted.
- If Contractor discontinue default upon receiving warning, then Employer cannot proceed with determination. However, if Contractor repeat the same default after that , no wareni ng letter is required . . Employer can straight away issue letter of determination.
clause 25.3 When Contratctor becomes insolvent, bankrupt, etc., employment of Contractor is immediately automatically determined.
- Contract does not require Contractor to report insolvency, etc. Therefore Employer relies on 3rd party's report e.g. receive who may not do so. Determination may be based on hearsay, risking invalidation.
clause 25.4 Upon determination of contract :
(a) Contractor stop all construction work, leave and hand site back to Employer .
- If Contractor stops all construction works, leave and hand Site back to Employer.
- If Contractor refused to leave site, employer can apply to the courts for an eviction order/ prohibility injunction with determination notice. Police to enforce order.
- Employer repossesses Site and awards remaining works to another Contractor
- Employer claims against performance bond.
-Contractor leaves behind all machineries, plant ( except hired), equipment, material and temporary buildings for use by new Contractor.
Those paid for by Employer, belong to him. New Contractor can use.
- Those unpaid but found useful, new Contractor can purchase. When instructed b Employer / Architect, Contractor to assign within 21 days of determination , agreements of hiring plants, machineries which are already at Site.
25.4(b) when required by Employer/ Architect , Contractor shall within 21 days of determination , assign agreements for supply materials, to Employer.
25.4 (c) When instructed by Architect, Contractor to remove from Site, temporary buildings, plants, tool etc. Failure to remove, these ( except hired) can be removed ro sold by Employer.
- Deduct all cost of selling .
- Balance be used to set-off with money owed to Employer by Contracto .
- Any remaining money be reutned to Contractor
25.4 (d) Contractor to pay cost of completi ng Works and losses / damages suffered by Employer as a rtesult of the determination . No futher payment , including certified amount to Contractor until final completion.
25.5 Architect / Q.S within 28 days organizes joint inspection/ record Works done and materials on Site for evaluation .
25.6 Architect / Q.S. within 6 months of completion of Works, submit to Employer and Contractor final account on cost to complete Works, amount certified and paid to Contractor previosuly, Liqyuidated Damages./ set- off and L & E suffered by Employer.
25.6 (a) If Employer / Contractor not dispute final accoutn within 3 months, deemed agreed. if the cost of completion is higher tha the Contract Sum, , the balance be deducted from Performance Bond or a debt from Contractor to Employer. If amount is less, then differe nce be paid to Contractor .
25.6 (b) If one party disputes the final account, he writes to the other within 3 months, listing disagreement. Architect/ Q.S. within 3 months to amend or not the final account. Refer to arbitration if has further disagreement.
25.6 (c) Dispute on Liquidated Damages, set-off and if Employer want interest, then refer to arbitration.
25.7 Within 14 days of determination, Contracvyot hand possession of Site back to Employer and remove his personnel from Site. Even if determiantion found uncontractual later, Contractor only entitle to compensation for damages.
26.0 Determination of own employment by contractor
26.1 Contractor can determine his own exmployment if Employer commits the foillowing default :
26.1 (a) Employer not pay Contractor within the Period of Hounoring Certificate
26.1 (b) Employer interferes with Architect in issuing certificates .
26.1 (c) Employer fails to nominate suceeding Architect / Consultants within 28 days after the ealir consultant ceased.
- Rather than determination Contractor can choose to suspend works under that consulant's purview.
26.1 (d) Works suspended longer than Period of Delay ( usually a continuous period of 3 months ), due to the following :
26.1 (d) (i) AI on discrepancies, late in handing over possession of site to Contractor or postponement / suspension of works.
26.1 (d) (ii) Contractor having applied for and not received required instruction on expenditure of P.C. and Provisional Sums, futher drawings / info.
26.1 (d) (iii) delay by Employer's direct Sub-Contractor / supplier.
26.1 (d) (iv) opening up of works for inspection / test unless Contractor's default.
26.2 a) Xontractor send writtemn Notice of Default by registered post/ hand to Employer specifying default committed by Employer. If Employer continues default for 14 days from receipt then Ｃｏｎｔｒａｃｔｏｒ within 10 days send determination letter to Employer and forthwith determine EMployment.
