Construction Law and Contract Lecturer: Ir. Dr. Rosli Mohamad Zin
JKR 203A STANDARD FORM OF CONTRACT Conditions Of Contract (56 Clauses)
1. Definitions and Interpretation • Define the following word terms Contract, Contractor, Contract Sum, S.O, S.O Representatives, Site, approved, directed, Work.
2. Duties of S.O and S.O.’s Representative • S.O shall be responsible for the overall supervision and direction of the Works. • S.O.'s Representative shall be responsible to the S.O. and his duties are to watch and supervise the Works. • S.O. may from time to time in writing delegate to the S.O.'s Representative any of the powers and authorities vested in the S.O. and shall furnish to the Contractor a copy of all such written delegation of powers and authorities.
3. S.O.'s Right to Take Action • Officer empowered to act on behalf of Government and to approve variations. Arises out of provision of Clauses 40, 43, 51, 52 or 54. b) Contractor shall not be entitled to claim for any delay and extension of time or any extra cost or expense or whatsoever arising for compliance with the provisions of this Condition.
4. Scope of Contract • Obligation of the contractor to carry out and complete the Works in accordance with the Contract Documents. • The contractor is obligated to provide materials, goods and standards of workmanship of the quality and standards. • Contractor to make good any defect, imperfection, shrinkage or other fault which may appear during Defect Liability Period in accordance with Clause 45.
5. S.O’s Instructions • S.O. may in his absolute discretion and from time to time issue further drawings, details, and/or written instructions. b) Contractor shall (subject to sub-clause (c) hereof) forthwith comply with all instructions issued to him by the S.O. within seven (7) days after receipt of a written notice from the S.O.
5. S.O.s Instructions (Cont) • All instructions issued by the S.O. shall be issued in writing. Any instruction issued orally shall be of no immediate effect, but shall be confirmed in writing by the Contractor to the S.O. • The Contractor shall within one (1) month of receipt of such instruction, give notice in writing of his intention to claim for such expense or loss to the S.O. together with an estimate of the amount of such expense and/or loss, subject always to Clause 48 (a) hereof.
6. Notices • Contractor shall notify the S.O. an address where written notices and instructions of the S.O. under this Contract may be served upon him and shall inform the S.O. of any change of address.
7. Contract Documents • The Contract Documents as aforesaid shall remain in the custody of the S.O. and shall be produced as and when required by the Contractor. • Copies of Contract Documents - one certified true copy of the Contract Documents - two copies of the Contract Drawings - two copies of the unpriced Bills of Quantities
7. Contract Documents (Cont) c) S.O. shall have two copies of such further working drawings or details as are reasonably necessary either to explain and amplify the Contract Drawings or the Specification. • Contractor shall keep one copy of the Contract Drawings, the Specification (if any), unpriced Bills of Quantities and documentson the Site and the S.O. shall at all reasonable times have access to the same.
7. Contract Documents (Cont) • Return to the S.O. all drawings, details, specifications, unpriced copy of Bills of Quantities and other documents of like nature after completion of work • None of the documents hereinbefore mentioned shall be used by the Contractor for any purpose other than this Contract.
8. Sufficiency of Contract Documents • Contract Documents are to be taken as mutually explanatory of one another. b) Contractor shall find any discrepancy in or divergence between any two or more of the Contract Documents including a discrepancy or divergence between parts of any one of them, he shall immediately give to the S.O. a written notice specifying the discrepancy.
9. Materials and Workmanship • All materials, goods and workmanship shall be of the respective kinds and standards described in the Bills of Quantities and/or Specification. b) The Contractor shall entirely at his own cost provide samples of materials and goods for testing.The Contractor shall oblige when instructed by the S.O. as per Clause 5.
10. Unfixed Materials and Goods • Unfixed materials and goods delivered to, placed on or adjacent to the Works and intended for incorporation therein, shall not be removed except for use upon the Works. • S.O. has included the value of such materials or goods in any certificate in accordance with Clause 47. • Contractor shall remain responsible for loss or damage to the same.
11. STATUTORY OBLIGATIONS • Compliance with written law, regulations and bye-laws The Contractor shall give all notices and pay all fees and charges required under any written law, regulations and bye-laws in relation to the execution of works or any temporary works.
11. STATUTORY OBLIGATIONS (Cont) b) Charges to be borne by Government Any costs incurred by the Contractor in relation to fees and charges for removal and installation of permanent connections to public sewers and permanent water and electricity supply shall be borne by the Government. The Government shall reimburse the Contractor for such costs by adding it by the way of Provisional Sum or etc. to the Contract Sum (if not included).
11. STATUTORY OBLIGATIONS (Cont) c) Indemnity to the Government The Contractor shall keep the Government indemnified against all penalties and liabilities of every kind of breach under provision of any written law, regulations and bye-laws which may be applicable to the works or any temporary works.
11. STATUTORY OBLIGATIONS (Cont) d) Changes in written law etc. If there is any change or amendment in any written law, regulations and bye-laws after the date of tender which necessitates any variation to the works or any temporary woks, the Contractor shall give written notice that specifying and giving the reason for such variation to the S.O. and follow the S.O.’s instruction before making such variation.
12. FOSSILS etc. • All fossils, coins, articles of value or antiquities and structures, other remains or things of geological or archaeological discovered on the site of works shall be deemed to be absolute property of the Government. • The Contractor shall take the reasonable precautions to prevent his workmen or any other persons from removing or damaging any such articles or things.
12. FOSSILS etc. (cont) • The Contractor shall immediately informs S.O. or S.O. Representative of such discovery and carry out the removal of such articles or things at the expense of the Government.
13. PATENT RIGHTS AND ROYALTIES • The Contractor shall save harmless and indemnify the Government from all claims and proceedings or on account of infringement of any patent rights, design, trademark or name or other protected rights in respect of any plant, machine work or material used in connection with works or any of them.
13. PATENT RIGHTS AND ROYALTIES (Cont) • Except where other specified, the Contractor shall pay all tonnage and other royalties, rent, fees and other payments for getting stone, sand, gravel, clay or other materials required for the works.
14. SETTING OUT • The S.O. shall provide information such as levels, boundary stone, and any other points of reference which may be required for the execution of the works for Contractor to set out works at ground level. • The Contractor shall take the responsible and shall entirely at his own cost amend any errors arising from his own inaccurate setting out.
15. INSPECTION OF SITE • The Contractor shall be deemed to have inspected and examined the site and its surrounding areas and have to satisfy himself before submitting his tender as to the nature of the ground and subsoil, the form and nature of the site, the extent and nature of the work, necessary materials and goods for the completion of the works, communication and access to the site, accommodation, all necessary information as to risks contingencies and all circumstance influencing and affecting his tender.
15. INSPECTION OF SITE (Cont) • Any information or document given or forwarded by the Government to the Contractor shall not relieve the Contractor of his obligations under the provisions of the clause. • The Contractor shall make use of and interpret those information at his own risk.
16. EMPLOYMENT OF WORKMEN a) Malaysian citizens. • The Contractor shall employ only Malaysian citizens as workmen. • The contractor can only employ non-Malaysian citizens if he can satisfy the S.O. and can prove that Malaysian citizens are not available for some particular trades or skills that required to complete the works. • Employment of non-Malaysian citizens is still subject to the approval of the Ministry of Labour and Manpower.
16. EMPLOYMENT OF WORKMEN (Cont) b) Ratio of workmen. • The ratio of Malaysian citizens who shall be employed by the Contractor in the execution of the contract shall reflect the racial ratio of the citizens of the country as prescribed by the Government from time to time.
16. EMPLOYMENT OF WORKMEN (Cont) c) Particulars of labour. • The Contractor shall furnish all particulars in respect of labour employed by him to the Department of Labour on the commencement of the works in accordance with the requirements of the Employment Ordinance 1955, employment (Restriction) Act 1968, and Internal Security (Registration of Labour) Regulation 1960 or any subsequent modification or re-enactment.
16. EMPLOYMENT OF WORKMEN (Cont) d) Source of labour. • All workmen employed in connection with the works shall be employed from the district where the works are situated. • Employment of workmen from other districts only can be done if such workmen are not available in the said district. • The Contractor shall immediately arrange with the Local Labour Office, District Officer to effect such employment after receipt of acceptance of tender.
16. EMPLOYMENT OF WORKMEN (Cont) e) On-site Training Programme • The Contractor shall employ the Works trainees provided by the Manpower Department, Ministry of Labour and Manpower for the purpose of providing site training to the workers if required by the Government.
16. EMPLOYMENT OF WORKMEN (Cont) f) Compliance by sub-contractors. • The Contractor shall cause his sub-contractors (including “labour-only” sub-contractors) and nominated sub-contractors to comply the provisions of this condition.
17. COMPLIANCE WITH EMPLOYMENT ORDINANCE 1955 etc. • The Contractor shall comply and shall cause his sub-contractors (including “labour-only” sub-contractors) and nominated sub-contractors to comply with all the requirements of the Employment Ordinance 1955, Employment (Restriction) Act 1968, Employee’s Provident Fund Ordinance 1951, the Industrial Relations Act 1967 and any other law relating to the employment of workmen in the employment of workmen for the execution of the contract.
17. COMPLIANCE WITH EMPLOYMENT ORDINANCE 1955 etc. (Cont) • The Contractor shall not be entitled to any claim for additional costs and payments in respect of his compliance with this condition.
18. DAYS AND HOURS OF WORKING • No work shall be done without the written permission of the S.O. on: • The weekly day of rest, • Any public holiday which is recognized in the district where the contract is being carried out, • Between 6 p.m. to 6 a.m. in the following morning.
18. DAYS AND HOURS OF WORKING (Cont) • The Contractor shall comply fully with all the requirements of the Employment Ordinance 1955 or any subsequent modification or re-enactment when such written application is approved by the S.O.
19. FOREMAN AND ASSISTANTS • The Contractor shall keep constantly a competent general foreman and assistants who capable of receiving instructions in Bahasa Malaysia or English in each trade on the site. • Such foreman shall be deemed as a site agent of the Contractor and any directions, explanations or instructions given to such foreman by the S.O. shall be deemed to have been given to the Contractor under the contract.
20. WAGES BOOKS AND TIME SHEETS • The Contractor shall keep and shall cause his sub-contractors (including “labour-only” sub-contractors) and nominated sub-contractors to keep proper wages books and time sheets showing wages paid to and the time worked by all workmen employed by him and his sub-contractor, on demand for inspection by any persons authorized by the S.O. and for the performance of the contract.
21. Default in Payment of Wages • Failure from the contractor or his sub-contractor and Nominated sub-contractor to: - pay the wages of the workmen - contribution to the EPF for the workmen - claims filed against the contractor in Department of Labour
21. Default in Payment of Wages (Cont) The S.O. after viewing the evidence can make ready the payment by deducting any payment towards the contractor at any time during the contract period.
22. Discharge of Workmen • The contractor is responsible for employing his technical and non technical workforce who are both efficient and good in character. • If the S.O. finds that the behaviour of person (s) employed misconducts or caused delays or incompetent, he is empowered to instruct in writing the removal of such employees
Discharge of Workmen (Cont) • Without delaying, a replacement would be found with the approval of the S.O. • The contractor will not be entitled for any expenses claims incurred in this clause.
23. Access for the S.O. to the Works • The contractor has to grant the S.O. and the representatives access atreasonable times to: • Works • Site • Workshops • Other places of the contractor where work is done for the contract
23. Access for the S.O. to the Works (Cont) • The contractor has to do the same for the places of works undertaken by the sub-contractors and the nominated sub-contractors
24. Variation • The S.O. is empowered to issue change orders which has to be confirmed in writing. These changes would not weakenthe contract. • Variation is defined as: • Alteration or modification of the design, quality or quantity of works shown in the drawings, BQ and specifications. • Addition, omission or substitution of works • Alteration or removal in the kind or standard or any materials or goods to be used in the works for the contract.
25. Measurement & Valuation of Works Including Variation • If the works are not similar and notexecuted under similar conditions, a reasonable rate or a fair valuation shall be made by the S.O. • The BQ rates will determine the value of works omitted. If the omission amounts to varying condition of the remaining works, then a reasonable rate or a fair valuation shall be made by the S.O.
25. Measurement & Valuation of Works Including Variation (Cont) • Amount to be paid for quantities of work stated as provisional will be subjected to re-measurement once thecontract is ended. • Works which cannot be properlymeasured or valued:
25. Measurement & Valuation of Works Including Variation (Cont) • an allowance would be made to the contractor to enable him quote day-work price with 15% mark-up which includes the costs for ordinary plants, tool, scaffolding, supervision and profit. • The contractor is to furnish the S.O. with vouchers, receipts and wage books specifying the time, for labour and plant and materials used in not more than 7 days after executing the work.
25. Measurement & Valuation of Works Including Variation (Cont) • S.O. is responsible to give priornotice to the contractor to attend or send a qualified agent to assist the S.O. or the representative to undertake themeasurement. Failure on the contractor to attendor send a qualified agent would deem whatever measurement taken by the S.O. to be the correct measurement of work.