2.1 Conditions of Subcontract

8/12/2019 2.1 Conditions of Subcontract

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O Mon TPP No.2 Construction Project Conditions of SubcontractMechanical Work Package A Subcontract No. OMON-ME-002

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CONDITIONS OF SUBCONTRACT

Subcontract

for

Mechanical Work Package A

O Mon TPP No.2 Construction Project

in

Cantho, Vietnam

(Subcontract No. OMON-ME-002)


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CONTENTS

1 General Provisions

1.1 Definitions

1.2 Interpretation

1.3 Communications

1.4 Law and Language

1.5 Priority of Documents

1.6 Subcontract Agreement

1.7 The Contract1.8 Assignment

1.9 Care and Supply of Documents

1.10 Employers/Contractors Use of Subcontractors Documents

1.11 Subcontractors Use of Employers/Contractors Documents

1.12 Confidential Details

1.13 Compliance with Laws

1.14 Joint and Several Liability

1.15 Details to be Confidential

1.16 Delayed Drawings, Instructions or Free-Issue Materials

2 The Contractor

2.1 Contractors Representative

2.2 Delegation by Contractors Representative

2.3 Instructions of Contractors Representative

2.4 Determinations

2.5 Contractors Claims

2.6 Right of Access to the Site

2.7 Permits, Licenses or Approvals

3 The Subcontractor

3.1 Subcontractors General Obligations

3.2 Performance Security

3.3 Subcontractors Representative

3.4 Subcontractors

3.5 Nominated Subcontractors

3.6 Assignment of Benefit of Subcontract

3.7 Co-operation

3.8 Setting Out

3.9 Safety Procedures

3.10 Quality Assurance


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3.11 Site Data

3.12 Sufficiency of Accepted Subcontract Amount

3.13 Unforeseeable Physical Conditions

3.14 Rights of Way and Facilities3.15 Avoidance of Interference

3.16 Access Route

3.17 Transport of Goods

3.18 Subcontractors Equipment

3.19 Protection of Environment

3.20 Electricity, Water and Gas

3.21 Employers/Contractors Equipment and Free-Issue Material

3.22 Progress Reports

3.23 Security of Site

3.24 Subcontractors Operation on Site

3.25 Fossils

4 Design

4.1 General Design Obligations

4.2 Subcontractors Documents

4.3 Subcontractors Undertaking

4.4 Technical Standards and Regulations

4.5 Training

4.6 As-Built Documents

4.7 Operation and Maintenance Manuals

4.8 Design Error

5 Staff and Labor

5.1 Engagement of Staff and Labor

5.2 Rates of Wages and Conditions of Labor

5.3 Persons in Service of Employer/Contractor

5.4 Labor Laws

5.5 Working Hours

5.6 Facilities for Staff and Labor

5.7 Health and Safety

5.8 Subcontractors Superintendence

5.9 Subcontractors Personnel5.10 Records of Subcontractors Personnel and Equipment

5.11 Disorderly Conduct

6 Plant, Materials and Workmanship

6.1 Manner of Execution

6.2 Samples

6.3 Inspection

6.4 Testing


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6.5 Rejection

6.6 Remedial Work

6.7 Ownership of Plant and Materials

6.8 Royalties

7 Commencement, Delays and Suspension

7.1 Commencement of Subcontract Works

7.2 Time for Completion

7.3 Program

7.4 Extension of Time for Completion

7.5 Rate of Progress

7.6 Delay Damages

7.7 Suspension of Work

7.8 Consequences of Suspension7.9 Payment for Plant and Materials in Event of Suspension

7.10 Prolonged Suspension

7.11 Resumption of Work

8 Tests on Completion

8.1 Subcontractors Obligations

8.2 Delayed Tests

8.3 Retesting

8.4 Failure to Pass Tests on Completion

9 Contractors Taking Over

9.1 Taking Over of Subcontract Works and Sections

9.2 Taking Over of Parts of Subcontract Works

9.3 Surfaces Requiring Reinstatement

10 Defects Liabilit y

10.1 Completion of Outstanding Work and Remedying Defects

10.2 Cost of Remedying Defects

10.3 Extension of Defects Notification Period

10.4 Failure to Remedy Defects10.5 Removal of Defective Work

10.6 Further Tests

10.7 Right of Access

10.8 Subcontractor to Search

10.9 Performance Certificate

10.10 Unfulfilled Obligations

10.11 Clearance of Site


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11 Tests after Completion

11.1 Procedure for Tests after Completion11.2 Retesting

11.3 Failure to Pass Tests after Completion

12 Variations and Adjustments

12.1 Right to Vary

12.2 Value Engineering

12.3 Variation Procedure

12.4 Payment in Applicable Currencies

12.5 Provisional Sums

12.6 Daywork12.7 Adjustments for Changes in Legislation and Cost

13 Subcontract Price and Payment

13.1 Subcontract Works to be Measured

13.2 Method of Measurement

13.3 Evaluation

13.4 Omissions

13.5 Subcontract Price

13.6 Advance Payment

13.7 Application for Interim Payment Certificates

13.8 Schedule of Payments

13.9 Plant and Materials intended for Subcontract Works

13.10 Issue of Interim Payment Certificates

13.11 Payment

13.12 Delayed Payment

13.13 Payment of Retention Money

13.14 Statement at Completion

13.15 Application for Final Payment Certificate

13.16 Discharge

13.17 Issue of Final Payment Certificate

13.18 Cessation of Contractors Liability

13.19 Currencies of Payment

14 Termination by Contractor

14.1 Notice to Correct

14.2 Termination by Contractor

14.3 Valuation at Date of Termination

14.4 Payment after Termination

14.5 Contractors Entitlement to Termination


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15 Suspension and Termination by Subcontractor

15.1 Subcontractors Entitlement to Suspend Work15.2 Termination by Subcontractor

15.3 Cessation of Work and Removal of Subcontractors Equipment

15.4 Payment on Termination

16 Risk and Responsibilit y

16.1 Indemnities

16.2 Subcontractors Care of Subcontract Works

16.3 Employers Risks and Consequences

16.4 Intellectual and Industrial Property Rights

16.5 Limitation of Liability16.6 Use of Employers or Contractors Accommodation/Facilities

17 Insurance

17.1 General Requirements for Insurances

17.2 Insurance for Subcontract Works

17.3 Insurance against Injury to Persons and Damage to Property

17.4 Insurance for Subcontractors Equipment

17.5 Insurance for Subcontractors Personnel

18 Force Majeure

18.1 Definition of Force Majeure

18.2 Notice of Force Majeure

18.3 Duty to Minimize Delay

18.4 Consequences of Force Majeure

18.5 Force Majeure Affecting Subcontractor

18.6 Optional Termination, Payment and Release

18.7 Release from Performance under Law

19 Claims, Disputes and Arbitration

19.1 Subcontractors Claims19.2 Amicable Settlement

19.3 Arbitration

19.4 Dispute with Employer

Annexes: A Form of Subcontract Agreement

B Form of Performance Security Demand Guarantee

C Form of Performance Security Surety Bond

D Form of Advance Payment Guarantee

E Form of Retention Money Guarantee


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1 General Provisions

1.1 Definitions

In the Conditions of Subcontract (these Conditions), the following words and expressions

shall have the meanings stated. Words indicating persons or parties include corporations and

other legal entities, except where the context requires otherwise:

1.1.1 The Subcontract

1.1.1.1 Subcontract means the Subcontract Agreement, the Letter of Acceptance, the Letter of

Tender, these Conditions, the Specification, the Drawings, the completed Schedules, theappended clauses of the Contract and the further documents (if any) which are listed in the

Subcontract Agreement or in the Letter of Acceptance.

1.1.1.2 Subcontract Agreement means the subcontract agreement referred to in Sub-Clause 1.6

(Subcontract Agreement).

1.1.1.3 Letter of Acceptance means the letter of formal acceptance, signed by the Contractor, of

the Letter of Tender, including any annexed memoranda comprising agreement between and

signed by both Parties. If there is no such letter of acceptance, the expression Letter of

Acceptance means the Subcontract Agreement and the date of issuing or receiving the

Letter of Acceptance means the date of signing the Subcontract Agreement.

1.1.1.4 Letter of Tender means the document entitled letter of tender, which was completed by the

Subcontractor and includes the signed offer to the Contractor for the Subcontract Works.

1.1.1.5 Specification means the document entitled specification, as included in the Subcontract,

and any additions and modifications to the specification in accordance with the Subcontract.

Such document specifies the Subcontract Works.

1.1.1.6 Drawings means the drawings of the Subcontract Works, as included in the Subcontract,

and any additional and modified drawings issued by (or on behalf of) the Contractor in

accordance with the Subcontract.

1.1.1.7 Schedules means the document(s) entitled schedules, completed by the Subcontractor and

submitted with the Letter of Tender, as included in the Subcontract. Such document may

include the Bill of Quantities, data, lists, and schedules of rates and/or prices.

1.1.1.8 Tender means the Letter of Tender and all other documents which the Subcontractor

submitted with the Letter of Tender, as included in the Subcontract.

1.1.1.9 Appendix to Tender means the completed pages entitled appendix to tender which are

appended to and form part of the Letter of Tender.


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1.1.1.10 Bill of Quantities , Daywork Schedule and Schedule of Payments mean the

documents so named (if any) which are comprised in the Schedules.

1.1.1.11 Contract means the contract made between the Employer and the Contractor in relation tothe O Mon TPP No.2 Construction Project at O Mon district, Cantho City, the Socialist

Republic of Vietnam.

1.1.2 Parties and Persons

1.1.2.1 Party means the Contractor or the Subcontractor, as the context requires.

1.1.2.2 Contractor means the person named as contractor in the Appendix to Tender and the legal

successors in title to this person.

1.1.2.3 Subcontractor means the person(s) named as subcontractor in the Letter of Tenderaccepted by the Contractor and the legal successors in title to this person(s).

1.1.2.4 Employer means the person named as employer in the Appendix to Tender and the legal

successors in title to this person, who is called as the COMPANYin the Contract.

1.1.2.5 Contractors Representative means the person appointed by the Contractor under Sub-

Clause 2.1 (Contractors Representative), who acts on behalf of the Contractor.

1.1.2.6 Subcontractors Representative means the person named by the Subcontractor in the

Subcontract or appointed from time to time by the Subcontractor under Sub-Clause 3.3

(Subcontractor s Representative), who acts on behalf of the Subcontractor.

1.1.2.7 Contractors Personnel means the Contractors Representative, the assistants referred to

in Sub-Clause 2.2 (Delegation by Contractors Representative)and all other staff, labour

and other employees of the Contractor, and any other personnel notified to the

Subcontractor by the Contractor as Contractors Personnel.

1.1.2.8 Subcontractors Personnel means the Subcontractors Representative and all personnel

whom the Subcontractor utilizes on Site, who may include the staff, labor and other

employees of the Subcontractor and of each subcontractor, and any other personnel

assisting the Subcontractor in the execution of the Subcontract Works.

1.1.2.9 Employers Personnel means all personnel whom the Employer utilizes on Site, who mayinclude the staff, labor and other employees of the Employer.

1.1.2.10 subcontractor means any person named in the Subcontract as a subcontractor, or any

person appointed as a subcontractor for a part of the Subcontract Works, and the legal

successors in title to each of these persons.

1.1.3 Dates, Tests, Period and Completion

1.1.3.1 Commencement Date means the date notified under Sub-Clause 7.1 (Commencement of

Subcontract Works).


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1.1.3.2 Time for Completion means the time for completing the Subcontract Works or a Section

(as the case may be) under Sub-Clause 7.2 (Time for Completion), as stated in the

Appendix to Tender (with any extension under Sub-Clause 7.4 (Extension of

Time forCompletion)), calculated from the Commencement Date.

1.1.3.3 Tests on Completion means the tests which are specified in the Subcontract or agreed by

both Parties or instructed as a Variation, and which are carried out under Clause 8 (Tests

on Completion)before the Subcontract Works or a Section (as the case may be) are taken

over by the Contractor.

1.1.3.4 Taking-Over Certificate means a certificate issued under Clause 9 (Contractors Taking

Over).

1.1.3.5 Tests after Completion means the tests (if any) which are specified in the Subcontract andwhich are carried out under Clause 11 (Tests after Completion) after the Subcontract

Works or a Section (as the case may be) are taken over by the Contractor.

1.1.3.6 Defects Notification Period means the period for notifying defects in the Subcontract

Works or a Section (as the case may be) under Sub-Clause 10.1 (Completion of

Outstanding Work and Remedying Defects), as stated in the Appendix to Tender, with

any extension under Sub-Clause 10.3 (Extension of Defects Notification Period),

calculated from the date on which the Subcontract Works or Section is completed as

certified under Sub-Clause 9.1 (Taking Over of Subcont ract Works and Sections).

1.1.3.7 Performance Certificate means the certificate issued under Sub-Clause 10.9

(Performance Certifi cate).

1.1.3.8 day means a calendar day and year means 365 days.

1.1.4 Money and Payments

1.1.4.1 Accepted Subcontract Amount means the amount accepted in the Letter of Acceptance

for the execution and completion of the Subcontract Works and the remedying of any

defects.

1.1.4.2 Subcontract Price means the price defined in Sub-Clause 13.5 (Subcontract Price), and

includes adjustments in accordance with the Subcontract.

1.1.4.3 Cost means all expenditure reasonably incurred (or to be incurred) by the Subcontractor,

whether on or off the Site, including overhead and similar charges, but does not include

profit.

1.1.4.4 Final Payment Certifi cate means the payment certificate issued under Sub-Clause 13.17

(Issue of Final Payment Certificate).

1.1.4.5 Final Statement means the statement defined in Sub-Clause 13.15 (Application for Final

Payment Certifi cate).


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1.1.4.6 Foreign Currency means a currency (if any) in which part (or all) of the Subcontract Price

is payable, but not the Local Currency.

1.1.4.7 Interim Payment Certifi cate means a payment certificate issued under Clause 13

(Subcontract Price and Payment), other than the Final Payment Certificate.

1.1.4.8 Local Currency means the currency of the Country.

1.1.4.9 Payment Certificate means a payment certificate issued under Clause 13 (Subcontract

Price and Payment).

1.1.4.10 Provisional Sum means a sum (if any) which is specified in the Subcontract as a

provisional sum, for the execution of any part of the Subcontract Works or for the supply of

Plant, Materials or services under Sub-Clause 12.5 (Provisional Sums).

1.1.4.11 Retention Money means the accumulated retention moneys which the Contractor retains

under Sub-Clause 13.7 (Application for Interim Payment Certificates) and pays under

Sub-Clause 13.13 (Payment of Retention Money).

1.1.4.12 Statement means a statement submitted by the Subcontractor as part of an application,

under Clause 13 (Subcontract Price and Payment), for a payment certificate.

1.1.5 Subcontract Works and Goods

1.1.5.1 Subcontractors Equipment means all apparatus, machinery, vehicles and other things

required for the execution and completion of the Subcontract Works and the remedying of

any defects. However, Subcontractors Equipment excludes Temporary Subcontract Works,

Employers Equipment (if any), Contractors Equipment (if any), Plant, Materials and any

other things intended to form or forming part of the Permanent Subcontract Works.

1.1.5.2 Goods means Subcontractors Equipment, Materials, Plant and Temporary Subcontract

Works, or any of them as appropriate.

1.1.5.3 Materials means things of all kinds (other than Plant) intended to form or forming part of the

Permanent Subcontract Works, including the supply-only materials (if any) to be supplied by

the Subcontractor under the Subcontract.

1.1.5.4 Permanent Subcontract Works means the permanent works to be executed by the

Subcontractor under the Subcontract.

1.1.5.5 Plant means the apparatus, machinery and vehicles intended to form or forming part of the

Permanent Subcontract Works.

1.1.5.6 Section means a part of the Subcontract Works specified in the Appendix to Tender as a

Section (if any).


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1.1.5.7 Temporary Subcontract Works means all temporary works of every kind (other than

Subcontractors Equipment) required on Site for the execution and completion of the

Permanent Subcontract Works and the remedying of any defects.

1.1.5.8 Subcontract Works means the Permanent Subcontract Works and Temporary Subcontract

Works, or either of them as appropriate.

1.1.6 Other Definit ions

1.1.6.1 Subcontractors Documents means the calculations, computer programs and other

software, drawings, manuals, models and other documents of a technical nature (if any)

supplied by the Subcontractor under the Subcontract.

1.1.6.2 Contractors Equipment means the apparatus, machinery and vehicles (if any) made

available by the Contractor for the use of the Subcontractor in the execution of theSubcontract Works, as stated in the Specification or any part of the Subcontract, but does

not include Plant which has not been taken over by the Contractor.

1.1.6.3 Country means the country in which the Site (or most of it) is located, where the Permanent

Subcontract Works are to be executed.

1.1.6.4 Employers Equipment means the apparatus, machinery and vehicles (if any) made

available by the Employer through the Contractor for the use of the Subcontractor in the

execution of the Subcontract Works, as stated in the Specification or any part of the

Subcontract, but does not include Plant which has not been taken over by the Employer.

1.1.6.5 Force Majeure is defined in Clause 18 (Force Majeure).

1.1.6.6 Laws means all national (or state) legislation, statutes, ordinances and other laws, and

regulations and by-laws of any legally constituted public authority.

1.1.6.7 Performance Security means the security (or securities, if any) under Sub-Clause 3.2

(Performance Security ).

1.1.6.8 Site means the places where the Permanent Subcontract Works are to be executed and to

which Plant and Materials are to be delivered, and any other places as may be specified in

the Subcontract as forming part of the Site.

1.1.6.9 Unforeseeable means not reasonably foreseeable by an experienced contractor by the

date for submission of the Tender.

1.1.6.10 Variation means any change to the Subcontract Works, which is instructed or approved as

a variation under Clause 12 (Variatios and Adjustments).

1.2 Interpretation

In the Subcontract, except where the context requires otherwise:


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(a) words indicating one gender include all genders,

(b) words indicating singular also include the plural and words indicating the plural also

include singular,

(c) provisions indicating the word agree, agreed or agreement requires the agreementto be recorded in writing, and

(d) written or in writing means hand-written, type-written, printed or electronically made,

and resulting in a permanent record.

The marginal words and other headings shall not be taken into consideration in the

interpretation of these Conditions.

1.3 Communications

Wherever these Conditions provide for the giving or issuing of approvals, certificates,

consents, determinations, notices and requests, these communications shall be:

(a) in writing and delivered by hand (against receipt), sent by mail or courier, or transmitted

using any of the agreed systems of electronic transmission as stated in the Appendix to

Tender, and

(b) delivered, sent or transmitted to the address for the recipients communications stated in

the Appendix to Tender. However:

(i) if the recipient gives notice of another address, communications shall thereafter be

delivered accordingly, and

(ii) if the recipient has not stated otherwise when requesting an approval or consent, it

may be sent to the address from which the request was issued.

1.4 Law and Language

The Subcontract shall be governed by the law of the country (or other jurisdiction) stated in

the Appendix to Tender.

If there are versions of any part of the Subcontract which are written in more than one

language, the version which is in the ruling language stated in the Appendix to Tender shall

prevail.

The language for communications shall be that stated in the Appendix to Tender. If no

language is stated there, the language for communications shall be the language in whichthe Subcontract (or most of it) is written.

1.5 Priority of Documents

The documents forming the Subcontract are to be taken as mutually explanatory of one

another. For the purpose of interpretation, the priority of the documents shall be in

accordance with the following sequence:

(a) the Subcontract Agreement,

(b) the Letter of Acceptance,


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(c) the Letter of Tender,

(d) the Addenda Nos. ______ (if any),

(e) these Conditions of Subcontract,

(f) the Specification,(g) the Drawings,

(h) the completed Schedules, and

(i) the appended clauses of the Contract.

If an ambiguity or discrepancy is found in the documents, the Contractor shall issue any

necessary clarification or instruction.

1.6 Subcontract Agreement

The Parties shall enter into a Subcontract Agreement after the Subcontractor receives the

Letter of Acceptance, unless they agree otherwise. The Subcontract Agreement shall bebased upon the form annexed to these Conditions. The costs of stamp duties and similar

charges (if any) imposed by law in connection with entry into the Subcontract Agreement shall

be borne by the respective Parties.

1.7 The Contract

Certain clauses of the Contract are appended to and incorporated into this Subcontract. The

Subcontractor shall conform as necessary to permit the Contractor to comply in every respect

with these clauses, except as otherwise stated in the Subcontract.

In respect to the provisions of the Contract, the Subcontractor shall accept the same

responsibilities, obligations and liabilities towards the Contractor as the Contractor accepts

towards the Employer in respect of the Subcontract Works and any other matter under the

Subcontract, except as otherwise stated in the Subcontract.

In case of conflict between the appended clauses of the Contract and the other Clauses of

this Subcontract, the documents shall rule in the order prescribed herein.

1.8 Assignment

Neither Party shall assign the whole or any part of the Subcontract or any benefit or interest in

or under the Subcontract. However, either Party:

(a) may assign the whole or any part with the prior agreement of the other Party, at the sole

discretion of such other Party, and

(b) may, as security in favour of a bank or financial institution, assign its right to any moneys

due, or to become due, under the Subcontract.

1.9 Care and Supply of Documents

The Specification and Drawings shall be in the custody and care of the Contractor. Unless

otherwise stated in the Subcontract, one (1) copies of the Subcontract and of each

subsequent Specification and Drawing, with one (1)additional copies of any material which


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can not be reproduced to an equal standard by photocopying, (or one (1) electronic file), shall

be supplied to the Subcontractor, who may make or request further copies at the cost of the

Subcontractor.

Each of the Subcontractors Documents shall be in the custody and care of the Subcontractor,

unless and until taken over by the Contractor. Unless otherwise stated in the Subcontract, the

Subcontractor shall supply to the Contractor the number of copies of the Subcontractors

Documents that the Contractor shall supply to the Employer and any other parties under the

Contract, together with three (3) additional copies, and one (1) reproducible copy of any

material which can not be reproduced to an equal standard by photocopying (or one (1)

electronic file).

The Subcontractor shall keep, on the Site, a copy of the Subcontract, publications named in

the Specification and Drawings, the Subcontractors Documents (if any), the Drawings and

Variations and other communications given under the Subcontract. The EmployersPersonnel and Contractors Personnel shall have the right of access to all these documents

at all reasonable times.

If a Party becomes aware of an error or defect of a technical nature in a document which was

prepared for use in executing the Subcontract Works, the Party shall promptly give notice to

the other Party of such error or defect.

1.10 Employers / Contractors Use of Subcont ractors Documents

Except as otherwise stated in the Subcontract, the Subcontractor shall, as between the

Parties, retain the copyright and other intellectual property rights in the Subcontractors

Documents and other design documents made by (or on behalf of) the Subcontractor.

The Subcontractor shall be deemed (by signing the Subcontract) to give to the Employer and

the Contractor a non-terminable transferable non-exclusive royalty-free license to copy, use

and communicate the Subcontractors Documents, including making and using modifications

of them. This license shall:

(a) apply throughout the actual or intended working life (whichever is longer) of the relevant

parts of the Subcontract Works,

(b) entitle any person in proper possession of the relevant part of the Subcontract Works to

copy, use and communicate the Subcontractors Documents for the purposes of

completing, operating, maintaining, altering, adjusting, repairing and demolishing theSubcontract Works, and

(c) in the case of Subcontractors Documents which are in the form of computer program

and other software, permit their use on any computer on the Site and other places as

envisaged by the Subcontract, including replacements of any computers supplied by the

Subcontractor.

The Subcontractors Documents and other design documents made by (or on behalf of) the

Subcontractor shall not, without the Subcontractors consent, be used, copied or

communicated to a third party by or on behalf of the Contractor for purposes other than those

permitted under this Sub-Clause.


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1.11 Subcontractors Use of Employers / Contractors Documents

As between the Parties, the Employer and the Contractor shall retain their respective

copyrights and other intellectual property rights in the Specification, the Drawings and otherdocuments made by or on behalf of them respectively. The Subcontractor may, at his cost,

copy, use and obtain communication of these documents for the purposes of the Subcontract.

They shall not, without the consents of the respective parties of the Employer and the

Contractor, be copied, used or communicated to a third party by the Subcontractor, except as

necessary for the purposes of the Subcontract.

1.12 Confidential Details

The Subcontractor shall disclose all such confidential and other information as the Contractor

may reasonably require in order to verify the Subcontractors compliance with the

Subcontract.

1.13 Compliance with Laws

The Subcontractor shall, in performing the Subcontract, comply with applicable Laws.

Unless otherwise stated in the Subcontract, the Subcontractor shall give all notices, pay all

taxes, duties and fees, and obtain all permits, licenses and approvals, as required by the

Laws in relation to the execution and completion of the Subcontract Works and the

remedying of any defects, and the Subcontractor shall indemnify and hold the Contractor

harmless against and from the consequences of any failure to do so.

1.14 Joint and Several Liability

If the Subcontractor constitutes (under applicable Laws) a joint venture, consortium or other

unincorporated grouping of two or more persons:

(a) these persons shall be deemed to be jointly and severally liable to the Contractor for the

performance of the Subcontract,

(b) these persons shall notify the Contractor of their leader who shall have authority to bind

the Subcontractor and each of these persons, and

(c) the Subcontractor shall not alter its composition or legal status without the prior consent

of the Contractor.

If the Subcontractor or any entity constituting a joint venture, consortium or other

unincorporated grouping of two or more persons is a subsidiary company, they shall submit to

the Contractor a parent company guarantee as stated in the Instructions to Tenderers or

otherwise agreed by the Contractor.

1.15 Details to be Confidential

The Subcontractor shall treat the details of the Subcontract as private and confidential,

except to the extent necessary to carry out obligations under it or to comply with applicable

Laws. The Subcontractor shall not publish, permit to be published, or disclose any particulars


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of the Subcontract Works in any trade or technical paper or elsewhere without the prior

agreement of the Contractor.

1.16 Delayed Drawings, Instruct ions or Free-Issue Materials

The Subcontractor shall give notice to the Contractor whenever the Subcontract Works are

likely to be delayed or disrupted if any necessary drawing, instruction or free-issue material is

not provided to the Subcontractor within a particular time, which shall be reasonable. The

notice shall include details of the necessary drawing, instruction or free-issue material, details

of why and by when it should be provided, and details of the nature and amount of the delay

or disruption likely to be suffered if it is late.

If the Subcontractor suffers delay and/or incurs Cost as a result of a failure of the Contractor

to provide the notified drawing, instruction or free-issue material within a time which is

reasonable and is specified in the notice with supporting details, the Subcontractor shall givea further notice to the Contractor for:

(a) an extension of time for any such delay, if completion is or will be delayed, under Sub-

Clause 7.4 (Extension o f Time for Completion), and

(b) payment of any such Cost, which shall be included in the Subcontract Price.

After receiving this further notice, the Contractor shall proceed in accordance with Sub-Clause

2.4 (Determinations) to agree or determine these matters.

However, if and to the extent that the Contractors failure was caused by any error or delay by

the Subcontractor, including an error in, or delay in the submission of, any of the

Subcontractors Documents, the Subcontractor shall not be entitled to such extension of time

or Cost.

2 The Contractor

2.1 Contractors Representative

The Contractor shall appoint the Contractors Representative who shall carry out the duties

assigned and exercise the authority delegated to him by the Contractor to act on behalf of the

Contractor under the Subcontract, and may also revoke such appointment and appoint a

replacement. The appointment, revocation or replacement shall be in writing and shall not

take effect until a notice thereof has been delivered to the Subcontractor.

The Contractors Representative or the Subcontractors Representative may require the other

to attend a management meeting in order to review the arrangements for future work. The

Contractors Representative shall record the business of management meeting and supply

copies of the record to those attending the meeting. In the record, responsibilities for any

actions to be taken shall be in accordance with the Subcontract.


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2.2 Delegation by Contractors Representative

The Contractors Representative may from time to time assign duties and delegate authority

to assistants, and may also revoke such assignment or delegation. These assistants mayinclude independent inspectors appointed to inspect and/or test items of Plant and/or

Materials. The assignment, delegation or revocation shall be in writing and shall not take

effect until a notice thereof has been delivered to the Subcontractor. However, unless

otherwise agreed by both Parties, the Contractors Representative shall not delegate the

authority to determine any matter in accordance with Sub-Clause 2.4 (Determinations).

Each assistant, to whom duties have been assigned or authority has been delegated, shall

only be authorized to issue instructions to the Subcontractor to the extent defined by the

delegation. Any approval, check, certificate, consent, examination, inspection, instruction,

notice, proposal, request, test, or similar act by an assistant, in accordance with the

delegation, shall have the same effect as though the act had been an act of the ContractorsRepresentative. However:

(a) any failure to disapprove any work, Plant or Materials shall not constitute approval, and

shall therefore not prejudice the right of the Contractor to reject the work, Plant or

Materials,

(b) if the Subcontractor questions any determination or instruction of an assistant, the

Subcontractor may refer the matter to the Contractors Representative, who shall

promptly confirm, reverse or vary the determination or instruction.

2.3 Instructions of Contractors Representative

The Contractors Representative may issue to the Subcontractor (at any time) instructions and

additional or modified Drawings which may be necessary for the execution of the Subcontract

Works and the remedying of any defects, all in accordance with the Subcontract. The

Subcontractor shall only take instructions from the Contractors Representative, or from an

assistant to whom the appropriate authority has been delegated under this Clause. If an

instruction constitutes a Variation, Clause 12 (Variations and Adjustments)shall apply.

The Subcontractor shall comply with the instructions given by the Contractors Representative

or delegated assistant, on any matter related to the Subcontract.

2.4 Determinations

Whenever the Contractors Representative shall proceed in accordance with this Sub-Clause

to agree or determine any matter, the Contractors Representative shall consult with the

Subcontractor in an endeavor to reach agreement. If agreement is not achieved, the

Contractors Representative shall make a fair determination in accordance with the

Subcontract, taking due regard of all relevant circumstances.

The Contractors Representative shall give notice to the Subcontractor of each agreement or

determination, with supporting particulars. Each Party shall give effect to each agreement or

determination unless and until revised under Clause 19 (Claims, Disputes and Arb itration).


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2.5 Contractors Claims

If the Contractor considers himself to be entitled to any payment under any Clause of these

Conditions or otherwise in connection with the Subcontract, and/or to any extension of theDefects Notification Period, the Contractor shall give notice and particulars to the

Subcontractor. However, notice is not required for payments due under Sub-Clause 3.20

(Electricity, Water and Gas), under Sub-Clause 3.21 (Employers / Contractors

Equipment and Free-Issue Material), or for other services requested by the Subcontractor.

The notice shall be given as soon as practicable after the Contractor became aware of the

event or circumstances giving rise to the claim. A notice relating to any extension of the

Defects Notification Period shall be given before the expiry of such period.

The particulars shall specify the Clause or other basis of the claim, and shall include

substantiation of the amount and/or extension to which the Contractor considers himself to beentitled in connection with the Subcontract. The Contractor shall then proceed in accordance

with Sub-Clause 2.4 (Determinations)to agree or determine (i) the amount (if any) which the

Contractor is entitled to be paid by the Subcontractor, and/or (ii) the extension (if any) of the

Defects Notification Period in accordance with Sub-Clause 10.3 (Extension of Defects

Notification Period).

This amount may be included as a deduction in the Subcontract Price and Payment

Certificates. The Contractor shall be entitled to set off against or make any deduction from an

amount certified in a Payment Certificate, or to otherwise claim against the Subcontractor, in

accordance with this Sub-Clause.

2.6 Right of Access to the Site

The Contractor shall make arrangements with the Employer to give the Subcontractor right

of access to and possession of all parts of the Site within the time (or times) stated in the

Appendix to Tender. The right and possession may not be exclusive to the Subcontractor. If

no such time is stated in the Appendix to Tender, the Contractor shall arrange to give the

Subcontractor right of access to and possession of the Site within such times as may be

required to enable the Subcontractor to proceed in accordance with the program submitted

under Sub-Clause 7.3 (Program).

2.7 Permits , Licenses or Approvals

The Subcontractor shall obtain himself all permits, licenses and approvals which the

Subcontractor is required to obtain under Sub-Clause 1.13 (Compliance with Laws).

The Contractor shall (when he is in a position to do so) provide reasonable assistance to the

Subcontractor at the request of the Subcontractor for the Subcontractors applications for

such permits, licenses and approvals.


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3 The Subcontracto r

3.1 Subcontractors General Obligations

The Subcontractor shall design (if and to the extent specified in the Subcontract), execute

and complete the Subcontract Works in accordance with the Subcontract and with the

Contractors instructions, and shall remedy any defects in the Subcontract Works.

Except as otherwise stated in the Subcontract, the Subcontractor shall provide the Plant and

Subcontractors Documents, and all Subcontractors Personnel, Goods, consumables and

other things and services, whether of temporary or permanent nature, required in and for this

design, execution, completion and remedying of defects, as specified in the Subcontract.

The Subcontractor shall be responsible for the adequacy, stability and safety of all Site

operations and of all methods of construction. Except to the extent specified in theSubcontract, the Subcontractor (i) shall be responsible for all Subcontractors Documents,

Temporary Subcontract Works, and such design as provided by the Subcontractor in

accordance with the Subcontract, and (ii) shall not otherwise be responsible for the design or

specification of the Subcontract Works provided by the Contractor.

The Subcontractor shall, whenever required by the Contractor, submit details of the

arrangements and methods which the Subcontractor proposes to adopt for the execution of

the Subcontract Works. No signification alteration to these arrangements and methods shall

be made without this having previously been notified to the Contractor.

3.2 Performance Security

The Subcontractor shall obtain at his cost a Performance Security for proper performance, in

the amount and currencies stated in the Appendix to Tender. If an amount is not stated in the

Appendix to Tender, this Sub-Clause shall not apply.

The Subcontractor shall deliver the Performance Security to the Contractor within thirty (30)

days (or otherwise acceptable to the Contractor) after receiving the Letter of Acceptance. The

Performance Security shall be issued by an entity and from within a country (or other

jurisdiction) approved by the Contractor, and shall be in the form annexed to these Conditions

or in another form approved by the Contractor.

The Subcontractor shall ensure that the Performance Security is valid and enforceable untilthe Subcontractor has executed and completed the Subcontract Works and remedied any

defects. If the terms of the Performance Security specify its expiry date, and the

Subcontractor has not become entitled to receive the Performance Certificate by the date

thirty (30) days prior to the expiry date, the Subcontractor shall extend the validity of the

Performance Security until the Subcontract Works have been completed and any defects

have been remedied.

The Contractor may make a claim under the Performance Security for amounts to which he is

entitled under the Subcontract in the event of:


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(a) failure by the Subcontractor to extend the validity of the Performance Security as

described in the preceding paragraph, in which event the Contractor may claim the full

amount of the Performance Security,

(b) failure by the Subcontractor to pay the Contractor an amount due, as either agreed bythe Subcontractor or determined under Sub-Clause 2.5 (Contractors Claims) or

Clause 19 (Claims, Disputes and Arbitration), within thirty (30) days after this

agreement or determination,

(c) failure by the Subcontractor to remedy a default within thirty (30) days after receiving the

Contractors notice requiring the default to be remedied, or

(d) circumstances which entitle the Contractor to termination under Sub-Clause 14.2

(Termination by Contractor), irrespective of whether notice of termination has been

given.

The Contractor shall return the Performance Security to the Subcontractor within thirty (30)

days after issuing the Performance Certificate.

3.3 Subcontracto rs Representative

The Subcontractor shall appoint the Subcontractors Representative and shall give him all

authority necessary to act on the Subcontractors behalf under the Subcontract.

Unless the Subcontractors Representative is named in the Subcontract, the Subcontractor

shall, prior to the Commencement Date, submit to the Contractor for consent the name and

particulars of the person the Subcontractor proposes to appoint as Subcontractors

Representative. If consent is withheld or subsequently revoked, or if the appointed person

fails to act as Subcontractors Representative, the Subcontractor shall similarly submit the

name and particulars of another suitable person for such appointment.

The Subcontractor shall not, without the prior consent of the Contractor, revoke the

appointment of the Subcontractors Representative or appoint a replacement.

The whole time of the Subcontractors Representative shall be given to directing the

Subcontractors performance of the Subcontract. If the Subcontractors Representative is to

be temporarily absent from the Site during the execution of the Subcontract Works, a suitable

replacement person shall be appointed, subject to the Contractors prior consent, and the

Contractor shall be notified accordingly.

The Subcontractors Representative shall, on behalf of the Subcontractor, receive instructionsunder Sub-Clause 2.3 (Instructions of Contractor s Representative).

The Subcontractors Representative may delegate any powers, functions and authority to any

competent person, and may at any time revoke the delegation. Any delegation or revocation

shall not take effect until the Contractor has received prior notice signed by the

Subcontractors Representative, naming the person and specifying the powers, functions and

authority being delegated or revoked.

The Subcontractors Representative and all these persons shall be fluent in the language for

communications defined in Sub-Clause 1.4 (Law and Language). If the Subcontractors


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Representative, or these persons, is not fluent in such language, the Subcontractor shall

make a competent interpreter available during all working hours.

3.4 Subcontractors

The Subcontractor shall not subcontract the whole of the Subcontract Works.

The Subcontractor shall be responsible for the acts or defaults of any subcontractor, his

agent or employees, as if they were the acts or defaults of the Subcontractor. Unless

otherwise stated in the Subcontract:

(a) the Subcontractor shall not be required to obtain consent to a subcontract for which the

subcontractor is named in the Subcontract,

(b) the prior consent of the Contractor shall be obtained to other proposed subcontractors,

(c) the Subcontractor shall give the Contractor not less than thirty (30)days notice of theintended date of the commencement of each subcontractors work, and of the

commencement of such work on the Site,

(d) each subcontract shall include provisions which would entitle the Contractor to require

the subcontract to be assigned to the Employer or the Contractor (as the case may be)

under Sub-Clause 3.6(Assignment of Benefit o f Subcontract)(if or when applicable)

or in the event of termination under Sub-Clause 14.2 (Termination by Contractor),

Sub-Clause 14.5 (Contractors Entitlement to Termination) or Sub-Clause 15.2

(Termination by Subcontractor), and

(e) the prior consent of the Contractor shall be obtained to the suppliers of the Plant and/or

Materials of the major specific manufactured or prefabricated items.

3.5 Nominated Subcontractors

In this Sub-Clause, nominated subcontractor means a subcontractor (if any) who is stated

in the Subcontract as being a nominated subcontractor, or whom the Contractor, under

Clause 12 (Variations and Adjustments), instructs the Subcontractor to employ as a

subcontractor.

The Subcontractor shall not be under any obligation to employ a nominated subcontractor

against whom the Subcontractor raises reasonable objection by notice to the Contractor as

soon as practicable, with supporting particulars.

3.6 Assignment of Benefit of Subcontract

If a subcontractors obligations extend beyond the expiry date of the relevant Defects

Notification Period and the Contractor instructs the Subcontractor to assign the benefit of

such obligations to the Contractor or the Employer (as the case may be), then the

Subcontractor shall do so. Similarly, if any of the Subcontractors obligations extend beyond

the date of the relevant Defects Notification period under the Contract and the Employer

instructs the Contractor to assign the benefit of such obligations to the Employer, then the

Contractor shall be entitled to do so. Unless otherwise stated in the assignment, the

Contractor shall have no liability to the Subcontractor for anything arising between the

Employer and the Subcontractor after the assignment takes effect.


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3.7 Co-operation

The Subcontractor shall, as specified in the Subcontract or as instructed by the Contractor,allow appropriate opportunities for carrying out work to:

(a) the Employers Personnel and/or the Contractors Personnel,

(b) any other contractors employed by the Employer and/or the Contractor, and

(c) the personnel of any legally constituted public authorities,

who may be employed in the execution on or near the Site of any work not included in the

Subcontract.

Any such instruction shall constitute a Variation if and to the extent that it causes the

Subcontractor to incur Unforeseeable Cost. Services for these personnel and othercontractors may include the use of Subcontractors Equipment, Temporary Subcontract

Works or access arrangements which are the responsibility of the Subcontractor.

The Subcontractor shall be responsible for his activities on the Site, and shall coordinate his

own activities with those of other contractors.

If, under the Subcontract, the Contractor is required to give to the Subcontractor possession

of any foundation, structure, plant or means of access in accordance with the Subcontractors

Documents, the Subcontractor shall submit such documents to the Contractor in the time and

manner stated in the Specification.

3.8 Setting Out

The Subcontractor shall set out the Subcontract Works in relation to original points, lines,

levels of reference specified in the Subcontract or notified by the Contractor. The

Subcontractor shall be responsible for the correct positioning of all parts of the Subcontract

Works, and shall rectify any error in the positions, levels, dimensions or alignments of the

Subcontract Works.

The Contractor shall be responsible for any error in these specified or notified items of

reference, but Subcontractor shall use all reasonable efforts to verify their accuracy before

they are used.

3.9 Safety Procedures

The Subcontractor shall:

(a) comply with all applicable safety regulations,

(b) take care of the safety of all persons entitled to be on the Site,

(c) use reasonable efforts to keep the Site and Subcontract Works clear of unnecessary

obstruction so as to avoid danger to these persons,

(d) provide fencing, lighting, guarding and watching of the Subcontract Works until

completion and taking over under Clause 9 (Contractors Taking Over), and


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(e) provide any Temporary Subcontract Works (including roadways, footways, guards and

fences) which may be necessary, because of the execution of the Subcontract Works,

for the use and protection of the public and of owners and occupiers of the adjacent land.

3.10 Quality Assurance

The Subcontractor shall institute a quality assurance system to demonstrate compliance with

the requirements of the Subcontract. The system shall be in accordance with the details

stated in the Subcontract. The Contractor shall be entitled to audit any aspect of the system.

Details of all procedures and compliance documents shall be submitted to the Contractor for

information before each design and execution stage is commenced. When any document of a

technical nature is issued to the Contractor, evidence of the prior approval by the

Subcontractor himself shall be apparent on the document itself.

Compliance with the quality assurance system shall not relieve the Subcontractor of any of

his duties, obligations or responsibilities under the Subcontract.

3.11 Site Data

The Subcontractor shall be deemed to have obtained all necessary information as to risks,

contingencies and other circumstances which may influence or affect the Tender or

Subcontract Works. The Subcontractor shall also be deemed to have inspected and

examined the Site, its surroundings, the above data and other available information, and to

have been satisfied before submitting the Tender as to all matters, including (without

limitation):

(a) the form and nature of the Site, including sub-surface conditions,

(b) the hydrological and climatic conditions,

(c) the extent and nature of the work and Goods necessary for the execution and completion

of the Subcontract Works and the remedying of any defects,

(d) the Laws, procedures and labor practices of the Country, and

(e) the Subcontractors requirements for access, accommodation, facilities, personnel,

power, transport, water and other services.

3.12 Sufficiency of Accepted Subcontract Amount

The Subcontractor shall be deemed to:

(a) have satisfied himself as to the correctness and sufficiency of the Accepted Subcontract

Amount, and

(b) have based the Accepted Subcontract Amount on the data, interpretations, necessary

information, inspections, examinations and satisfaction as to all relevant matters referred

to in Sub-Clause 3.11 (Site Data).

Unless otherwise stated in the Subcontract, the Accepted Subcontract Amount covers all the

Subcontractors obligations under the Subcontract (including those under Provisional Sums, if


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any) and all things necessary for the proper execution and completion of the Subcontract

Works and the remedying of any defects.

3.13 Unforeseeable Physical Conditions

In this Sub-Clause, physical conditions means natural physical conditions and manmade

and other physical obstructions and pollutions, which the Subcontractor encounters at the

Site when executing the Subcontract Works, including sub-surface and hydrological

conditions but excluding climatic conditions.

If the Subcontractor encounters adverse physical conditions which he considers to have been

Unforeseeable, the Subcontractor shall give notice to the Contractor as soon as practicable.

This notice shall describe the physical conditions, so that they can be inspected by the

Contractor, and shall set out the reasons why the Subcontractor considers them to beUnforeseeable. The Subcontractor shall continue executing the Subcontract Works, using

such proper and reasonable measures as are appropriate for the physical conditions, and

shall comply with any instructions which the Contractor may give.

If the Subcontractor encounters physical conditions which are Unforeseeable, gives such

notice, and suffers delay and/or incurs Cost due to these conditions, the Subcontractor shall

be entitled subject to Sub-Clause 19.1 (Subcontractors Claims) to compensation only to

the extent that the Employer agrees or determines under the Contract in respect of such

effect.

3.14 Rights of Way and Faciliti es

The Subcontractor shall bear all costs and charges for special and/or temporary right of way

which he may require, including those for access to the Site. The Subcontractor shall also

obtain, at his risk and cost, any additional facilities outside the Site which he may require for

the purposes of the Subcontract Works.

3.15 Avoidance of Interference

The Subcontractor shall not interfere unnecessarily or improperly with:

(a) the convenience of the public, or

(b) the access to and use and occupation of all roads and footpaths, irrespective of whetherthey are public or in the possession of the Employer or of others.

The Subcontractor shall indemnify and hold the Contractor harmless against and from all

damages, losses and expenses (including legal fees and expenses) resulting from any such

unnecessary and improper interference.

3.16 Access Route

The Subcontractor shall be deemed to have been satisfied as to the suitability and availability

of access routes to the Site. The Subcontractor shall use reasonable efforts to prevent any


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road or bridge from being damaged by the Subcontractors traffic or by the Subcontractors

Personnel. These efforts shall include the proper use of appropriate vehicles and routes.

Except as otherwise stated in these Conditions:

(a) the Subcontractor shall (as between the Parties) be responsible for any maintenance

which may be required for his use of access routes,

(b) the Subcontractor shall provide all necessary signs or directions along access routes,

and shall obtain any permission which may be required from the relevant authorities for

his use of routes, signs and directions,

(c) the Contractor shall not be responsible for any claims which may arise from the use or

otherwise of any access route,

(d) the Contractor does not guarantee the suitability or availability of particular access

routes, and

(e) Costs due to non-suitability or non-availability, for the use required by the Subcontractor,of the access routes shall be borne by the Subcontractor.

3.17 Transport of Goods

Unless otherwise stated in the Subcontract:

(a) the Subcontractor shall give the Contractor not less than twenty (20) days notice of the

date on which any Plant or a major item of other Goods, which is supplied by the

Subcontractor, will be delivered to the Site,

(b) the Subcontractor shall be responsible for packing, loading, transporting, receiving,

unloading, storing and protecting all Goods and other things required for the Subcontract

Works, and

(c) the Subcontractor shall indemnify and hold harmless the Contractor against and from all

damages, losses and expenses (including legal fees and expenses) resulting from the

transport of Goods, and shall negotiate and pay all claims arising from his transport.

3.18 Subcontractors Equipment

The Subcontractor shall be responsible for all Subcontractors Equipment. When brought on

to the Site, Subcontractors Equipment shall be deemed to be exclusively intended for the

execution of the Subcontract Works. The Subcontractor shall not remove from the Site any

major items of Subcontractors Equipment without the consent of the Contractor. However,

consent will not be required for vehicles transporting Goods or Subcontractors Personnel offSite.

3.19 Protection of Environment

The Subcontractor shall take all reasonable steps to protect the environment (both on and off

the Site) and to limit damage and nuisance to people and property resulting from pollution,

noise and other results of his operations.


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The Subcontractor shall ensure that emissions, surface discharges and effluent from the

Subcontractors activities shall not exceed the values indicated in the Specification, and shall

not exceed the values prescribed by applicable Laws.

3.20 Electri cit y, Water and Gas

The Subcontractor shall, except as stated below or as otherwise stated in the Subcontract,

be responsible for the provision of all power, water and other services he may require.

The Subcontractor may use for the purposes of the Subcontract Works such supplies of

electricity, water, gas and other services if they are available on the Site for such purpose and

of which details and prices are given in the Specification. The Subcontractor shall, at his risk

and cost, provide any apparatus necessary for his use of these services and for measuring

the quantities consumed.

The quantities consumed and the amounts due (at these prices) for such services shall be

agreed or determined by the Contractor in accordance with Sub-Clause 2.4 (Determinations)

and Sub-Clause 2.5 (Contractors Claims). The Subcontractor shall pay these amounts to

the Contractor or otherwise as instructed by the Contractor.

3.21 Employers / Contractors Equipment and Free-Issue Material

The Contractor shall make the Employers Equipment and/or the Contractors Equipment (if

any) available for the use of the Subcontractor in the execution of the Subcontract Works in

accordance with the details, arrangements and prices stated in the Specification. Unless

otherwise stated in the Subcontract:

(a) the Contractor shall (between the Parties) be responsible for both Employers Equipment

and Contractors Equipment, except that

(b) the Subcontractor shall be responsible for each item of Employers Equipment and/or

Contractors Equipment whilst any of the Subcontractors Personnel is operating it,

driving it, directing it or in possession or control of it.

The appropriate quantities and amounts due (at such stated prices) for the use of Employers

Equipment and/or Contractors Equipment shall be agreed or determined by the Contractor in

accordance with Sub-Clause 2.4 (Determinations) and Sub-Clause 2.5 (Contractors

Claims). The Subcontractor shall pay these amounts to the Contractor or otherwise as

instructed by the Contractor.

The Contractor shall supply, free of charge, the free-issue materials (if any) in accordance

with the details stated in the Specification. The Contractor shall, at his risk and cost, provide

these materials at the place and on the terms stated in the Appendix to Tender, or otherwise

specified in the Subcontract. The Subcontractor shall then visually inspect them, and shall

promptly give notice to the Contractor of any shortage, defect or default in these materials.

Unless otherwise agreed by both Parties, the Contractor shall immediately rectify the noticed

shortage, defect or default.


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After this visual inspection, the free-issue materials shall come under the care, custody and

control of the Subcontractor. The Subcontractors obligations of inspection, care, custody and

control shall not relieve the Contractor of liability for any shortage, defect or default not

apparent from a visual inspection.

If the Subcontractor requires that any free-issue materials are to be supplied by the

Contractor in excess of the quantities given in the Specification for the purposes of the

Subcontract Works and such requirement is not attributable to the Contractor, the Contractor

may supply the additional quantities of the free-issue materials at the Subcontractors costs at

the prices given in the Specification or otherwise agreed between the Parties. The

appropriate quantities and the amounts due (at such given prices) for the supply of such

additional free-issue materials shall be agreed or determined by the Contractor in accordance

with Sub-Clause 2.4 (Determinations) and Sub-Clause 2.5 (Contractors Claims). The

Subcontractor shall pay these amounts to the Contractor.

If, any of the free-issue materials remain unused at the time of the completion of the

Subcontract Works, or any other time, and such unused free-issue materials are not to be

required for incorporation into the Subcontract Works, the Subcontractor shall return such

items to the Contractor at a designated place on or adjacent to the Site, or properly dispose

of such surplus material, as required by the Contractor.

3.22 Progress Reports

Unless otherwise stated in the Subcontract, monthly progress reports shall be prepared by

the Subcontractor and submitted to the Contractor in such number of copies as required by

the Contractor. The first report shall cover the period up to the end of the first calendar month

following the Commencement Date. Reports shall be submitted monthly thereafter, each

within seven (7)days after the last day of the period to which it relates.

Reporting shall continue until the Subcontractor has completed all works which is known to

be outstanding at the completion date stated in the Taking Over Certificate for the

Subcontract Works.

Each report shall include:

(a) charts and detailed descriptions of progress, including each stage of design (if any),

Subcontractors Documents, procurement, manufacture, delivery to the Site,

construction, erection and testing, and commissioning and trial operation, to the extentapplicable,

(b) photograph showing the status of manufacture and of progress on the Site,

(c) for the manufacture of each main item of Plant and Materials, the name of the

manufacturer, manufacture location, percentage progress, and the actual or expected

dates of:

(i) commencement of manufacture,

(ii) Subcontractors inspections,

(iii) test, and

(iv) shipment and arrival at the Site,


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(d) details described in Sub-Clause 5.10 (Records of Subcontractors Personnel and

Equipment),

(e) copies of quality assurance documents, test results and certificates of Materials,

(f) list of Variations and notices given under Sub-Clause 2.5 (Contractors Claims) andnotices given under Sub-Clause 19.1 (Subcontractors Claims),

(g) safety statistics, including details of any hazardous incidents and activities relating to

environmental aspects and public relations, and

(h) comparison of actual and planned progress, with details of any events or circumstances

which may jeopardize the completion in accordance with the Subcontract, and the

measures being (or to be) adopted to overcome delays.

3.23 Securit y of Site

Unless otherwise stated in the Subcontract, the Subcontractor shall be responsible for

keeping unauthorized persons off the Site.

3.24 Subcontractors Operation on Site

The Subcontractor shall confine his operations to the Site, and to any additional areas which

may be obtained by the Subcontractor and agreed by the Contractor as working areas. The

Subcontractor shall take all necessary precautions to keep Subcontractors Equipment and

Subcontractors Personnel within the Site and these additional areas, and to keep them off

adjacent land.

During the execution of the Subcontract Works, the Subcontractor shall keep the Site free

from all unnecessary obstruction, and shall store or dispose of any Subcontractors

Equipment or surplus materials. The Subcontractor shall clear away and remove from the

Site any wreckage, rubbish and Temporary Subcontract Works which are no longer required.

Upon the issue of a Taking-Over Certificate, the Subcontractor shall clear away and remove,

from that part of the Site and Subcontract Works to which the Taking-Over Certificate refers,

all Subcontractors Equipment, surplus materials, wreckage, rubbish and Temporary

Subcontract Works. The Subcontract shall leave that part of the Site and Subcontract Works

in a clean and safe condition. However, the Subcontractor may retain on Site, during the

Defects Notification Period, such Goods as are required for the Subcontractor to fulfill

obligations under the Subcontract.

3.25 Fossils

All fossils, coins, articles of value or antiquity, and structures and other remains or items of

geological or archaeological interest found on the Site shall be placed under the care and

authority of the Employer or as otherwise instructed by the Contractor. The Subcontractor

shall take reasonable precautions to prevent Subcontractors Personnel or other persons

from removing or damaging any of these findings.

The Subcontractor shall, upon discovery of any such finding, promptly give notice to the

Contractor, who shall issue instructions for dealing with it.


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4 Design

4.1 General Design Obligations

If the Subcontract specifies that the Subcontractor shall design any part of the Permanent

Subcontract Works, the Subcontractor shall carry out, and be responsible for, the design of

such part of the Subcontract Works. Design shall be prepared by qualified designers who are

engineers or other professionals who comply with the criteria (if any) stated in the

Specification and Drawings. Unless otherwise stated in the Subcontract, the Subcontractor

shall submit to the Contractor for consent the name and particulars of each proposed

designer and design subcontractor.

The Subcontractor warrants that he, his designers and design subcontractors have the

experience and capability necessary for the design. The Subcontractor undertakes that the

designers shall be available to attend discussions with the Contractor at all reasonable times,until the expiry date of the relevant Defects Notification Period.

Upon receiving notice under Sub-Clause 7.1 (Commencement of Subcontract Works), the

Subcontractor shall scrutinize the requirements of the design (including criteria and

calculations, if any) and the items of reference mentioned in Sub-Clause 3.8 (Setting Out).

Within a reasonable period as soon as possible, the Subcontractor shall give notice to the

Contractor of any error, fault or other defect found in the requirement of the design or these

items of reference.

4.2 Subcontractors Documents

The Subcontractor shall submit to the Contractor the Subcontractors Documents in

accordance with the procedures specified in the Subcontract. The Subcontractors

Documents shall comprise the technical documents specified in the Subcontract, documents

required to satisfy all regulatory approvals, and the documents described in Sub-Clause 4.6

(As-Built Documents) and Sub-Clause 4.7 (Operation and Maintenance Manuals).

Unless otherwise stated in the Subcontract or instructed by the Contractor, the

Subcontractors Documents shall be written in the language for communications defined in

Sub-Clause 1.4 (Law and Language).

The Subcontractor shall prepare all Subcontractors Documents, and shall also prepare any

other documents necessary to instruct the Subcontractors Personnel. The Employers

Personnel and the Contractors Personnel shall have the right to inspect the preparation of allthese documents, wherever they are being prepared.

If the Subcontract describes the Subcontractors Documents which are to be submitted to the

Contractor for review or for approval, they shall be submitted to the Contractor accordingly.

In the case of a Subcontractors Document which has been submitted for the Contractors

approval, the Contractor shall give notice to the Subcontractor that the Subcontractors

Document is approved, with or without comments, or that it fails (to the extent stated) to

comply with the Subcontract, and execution of such part of the Subcontract Works shall not

commence until the Contractor has approved the Subcontractors Documents or otherwise

instructed to do so.


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If the Contractor instructs that further Subcontractors Documents are required, the

Subcontractor shall prepare them promptly.

Any approval or consent, or any review by the Contractor of the Subcontractors Documents

shall not relieve the Subcontractor from any obligation or responsibility.

4.3 Subcontractors Undertaking

The Subcontractor undertakes that the design, the Subcontractors Documents, the execution

and the completed Subcontract Works will be in accordance with:

(a) the Laws in the Country, and

(b) the documents forming the Subcontract, as altered or modified by Variations.

4.4 Technical Standards and Regulations

The design, the Subcontractors Documents, the execution and the completed Subcontract

Works shall comply with the Countrys technical standards, building, construction and

environmental Laws, Laws applicable to the product being produced from the Subcontract

Works, and other standards specified in the Subcontract, applicable to the Subcontract

Works, or defined by the applicable Laws.

All these Laws shall, in respect of the Subcontract Works and each Section, be those

prevailing when the Subcontract Works or Section are taken over by the Contractor under

Clause 9 (Contractors Taking Over). References in the Subcontract to published

standards shall be understood to be references to the edition applicable on the date entered

into the Subcontract between the Parties, unless stated otherwise.

If changed or new applicable standards come into force in the Country after entering into the

Subcontract between the Parties, the Subcontractor shall give notice to the Contractor and (if

appropriate) submit proposals for compliance.

4.5 Training

The Subcontractor shall carry out the training of the Employers Personnel in the operation

and maintenance of the Subcontract Works to the extent specified in the Subcontract. If the

Subcontract specifies training which is to be carried out before taking-over, the SubcontractWorks shall not be considered to have been completed for the purposes of taking-over under

Sub-Clause 9.1 (Taking Over of Subcontract Works and Sections)until this training has

been completed.

4.6 As-Built Documents

The Subcontractor shall prepare, and keep up-to-date, a complete set of as-built records of

the execution of the Subcontract Works, showing the exact as-built locations, sizes and

details of the work as executed. These records shall be kept on the Site and shall be used

exclusively for the purposes of this Sub-Clause.


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Unless otherwise stated in the Subcontract, the Subcontractor shall supply to the Contractor

the number and type of the as-built documents of the material that the Contractor shall

supply to the Employer and any other parties under the Contract, together with three (3)additional copies, for the part of the Subcontract Works which the Subcontractor design, at

the time the Contractor shall submit them to the Employer under the Contract.

For the part of the Subcontract Works which the Subcontractor does not design, the

Subcontractor shall supply to the Contractor one (1)full set of mark-up documents showing

all work as built to enable the Contractor to prepare and supply to the Employer complete set

of the as-built documents at the time and in the manner prescribed in the Contract.

The Subcontract Works shall not be considered to have been completed for the purposes of

taking-over under Sub-Clause 9.1 (Taking Over of Subcontract Works and Sections)until

the Contractor has received these documents.

4.7 Operation and Maintenance Manuals

Unless otherwise stated in the Subcontract, the Subcontractor shall supply to the Contractor

the number and type of the operation and maintenance manuals in sufficient detail for the

Employer to operate, maintain, dismantle, reassemble, adjust and repair the Plant that the

Contractor shall supply to the Employer under the Contract, together with three (3)additional

copies, for the part of the Subcontract Works which the Subcontractor design, at the time the

Contractor shall submit them to the Employer under the Contract.

The Subcontract Works shall not be considered to have been completed for the purposes of

taking-over under Sub-Clause 9.1 (Taking Over of Subcontract Works and Sections)until

the Contractor has received the operation and maintenance manuals in such detail

acceptable to the Contractor, and any other manuals specified in the Subcontract for these

purposes.

4.8 Design Error

If errors, omissions, ambiguities, inconsistencies, inadequacies or other defects are found in

the Subcontractors Documents, they and the Subcontract Works shall be corrected at the

Subcontractors cost, notwithstanding any consent or approval under this Clause.

5 Staff and Labor

5.1 Engagement of Staff and Labor

Unless otherwise stated in the Subcontract, the Subcontractor shall make arrangements for

the engagement of all staff and labor, local or otherwise, and for their payment, housing,

feeding and transport.

5.2 Rates of Wages and Conditions of Labor


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The Subcontractor shall pay rates of wages, and observe conditions of labor, which are not

lower than those established for the trade or industry where the work is carried out. If no

established rates or conditions are applicable, the Subcontractor shall pay rates of wages

and observe conditions which are not lower than the general level of wages and conditionsobserved locally by employers whose trade or industry is similar to that of the Subcontractor.

5.3 Persons in Service of Employer/Contractor

The Subcontractor shall not recruit, or attempt to recruit, staff and labor from amongst the

Employers Personnel and/or the Contractors Personnel.

5.4 Labor Laws

The Subcontractor shall comply with all relevant labor Laws applicable to the Subcontractors

Personnel, including Laws relating to their employment, health, safety, welfare, immigrationand emigration, and shall allow them all their legal rights.

The Subcontractor shall require his employees to obey all applicable Laws, including those

concerning safety at work.

5.5 Working Hours

No work shall be carried out on the Site on locally recognized days of rest, or outside the

normal working hours stated in the Appendix to Tender, unless:

(a) otherwise stated in the Subcontract,

(b) the Contractor gives consent, or

(c) the work is unavoidable, or necessary for the protection of life or property or for the

safety of the Subcontract Works, in which case the Subcontractor shall immediately

advise the Contractor.

5.6 Facilities for Staff and Labor

Unless otherwise stated in the Subcontract, the Subcontractor shall provide and maintain all

necessary accommodation and welfare facilities for the Subcontractors Personnel. The

Subcontractor shall also provide facilities for the Employers Personnel and/or the

Contractors Personnel if otherwise stated in the Subcontract to do so.

The Subcontractor shall not permit any of the Subcontractors Personnel to maintain any

temporary or permanent living quarters within the structures forming part of the Permanent

Subcontract Works.

5.7 Health and Safety

The Subcontractor shall at all times take all reasonable precautions to maintain the health

and safety of the Subcontractors Personnel. Unless otherwise stated in the Subcontract, the

Subcontractor shall, in collaboration with local health authorities, ensure that medical staff,

first aid facilities, sick bay and ambulance service are available at all times at the Site and at


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any accommodation for Subcontractors Personnel (if otherwise stated in the Subcontract, for

Contractors Personnel and Employers Personnel also) and that suitable arrangements are

made for all necessary welfares and hygiene requirements and for the prevention of

epidemics.

The Subcontractor shall appoint an accident prevention officer at the Site, responsible for

maintaining safety and protection against accident. This person shall be qualified for this

responsibility, and shall have the authority to issue instructions and take protective measures

to prevent accidents. Throughout the execution of the Subcontract Works, the Subcontractor

shall provide whatever is required by this person to exercise this responsibility and authority.

The Subcontractor shall send to the Contractor details of any accident as soon as practicable

after its occurrence. The Subcontractor shall maintain records and make reports concerning

health, safety and welfare of persons, and damage to property, as the Contractor may

reasonably require.

5.8 Subcontractors Superintendence

Throughout the execution of the Subcontract Works, and as long thereafter as is necessary

to fulfill the Subcontractors obligations, the Subcontractor shall provide all necessary

superintendence to plan, arrange, direct, manage, inspect and test the work.

Superintendence shall be given by a sufficient number of persons having adequate

knowledge of the language for communications defined in Sub-Clause 1.4 (Law and

Language) and of the operations to be carried out (including the methods and techniques

required, the hazards likely to be encountered and methods of preventing accidents), for the

satisfactory and safe execution of the Subcontract Works. A reasonable proportion of the

Subcontractors superintending staff shall have a working knowledge of such language for

communications, or the Subcontractor shall have sufficient number of interpreters available

on Site during all working hours.

5.9 Subcontractors Personnel

The Subcontractors Personnel shall be appropriately qualified, skilled and experienced in

their respective trades and occupations. The Contractor may require the Subcontractor to

remove (or cause to be removed) any person employed on the Site or Subcontract Works,

including the Subcontractors Representative if applicable, who

(a) persists in any of misconduct or lack of care,

(b) carries out duties incompetently or negligently,

(c) fails to conform with any provisions of the Subcontract, or

(d) persists in any conduct which is prejudicial to safety, health, or the protection of the

environment.

If appropriate, the Subcontractor shall then appoint (or cause

2.1 Conditions of Subcontract

Documents

Transcript of 2.1 Conditions of Subcontract