HONG KONG HOUSING AUTHORITY GUIDELINES FOR THE GENERAL CONDITIONS OF CONTRACT FOR BUILDING WORKS 2013 EDITION

Transcription

1 HONG KONG HOUSING AUTHORITY GUIDELINES FOR THE GENERAL CONDITIONS OF CONTRACT FOR BUILDING WORKS 2013 EDITION

2 1. Background The Hong Kong Housing Authority (HA) had adopted the Government of Hong Kong General Conditions of Contract 1993 Edition (GCC1993) in its capital works contracts for a number of years. A review on the various provisions of the GCC1993 was carried out in 2012 and a number of areas had been identified for further enhancement with a view to achieving more equitable risk sharing, better practices and more efficient contract management and dispute avoidance and resolution. This sets the scene for the compilation of the new suite of the HA s Standard General Conditions of Contract (GCC2013) # which comprises the following: - General Conditions of Contract for Building Works (2013 Edition) - General Conditions of Contract for Foundation Works (2013 Edition) - General Conditions of Contract for Civil Engineering Works (2013 Edition) - General Conditions of Contract for Miscellaneous Works (2013 Edition) These Guidelines are intended to provide users with a brief summary highlighting the major differences between GCC2013 and GCC1993 to facilitate understanding of the prominent features of GCC The Objectives of GCC To improve user-friendliness and operational efficiency by consolidating terms and conditions of the GCC1993 and the HA s Library of Special Conditions of Contract for use with the GCC1993, and to reduce the volume of Special Conditions of Contract as much as practicable. - To give effect to HA s latest policy embodying initiatives to enhance: o Risk management o Equitable risk sharing o Dispute avoidance, and o Prompt settlement of claims 3. Framework of GCC2013 The GCC2013 is targeted specifically at the HA s capital works contracts. It retains the basic framework of GCC1993 but with a new numbering system and introduces new provisions to achieve the objectives as stated above. The clauses in the 4 sets of General Conditions of Contract for Building Works, Foundation Works, Civil Engineering Works and Miscellaneous Works respectively are grouped under 21 sections as follows, using as far as practicable the same clause number for the same subject throughout the 4 sets of General Conditions of Contract (GCC). # A new set of Articles of Agreement and General Conditions of Nominated Sub-contract to Building Works Contracts (2013 Edition) has also been compiled as part of the GCC2013. This set of new conditions replaced the previous Government of Hong Kong Sub-contract Articles of Agreement and Conditions for Building Works (1988 Edition) which the HA had adopted for over two decades. p.1

3 3. Framework of GCC2013 (Cont d) Section Number Section Title 1 DEFINITIONS AND INTERPRETATION 2 CONTRACT MANAGER AND CONTRACT MANAGER S REPRESENTATIVE AND SURVEYOR AND SURVEYOR S REPRESENTATIVE 3 ASSIGNMENT AND SUB-CONTRACTING 4 CONTRACT DOCUMENTS 5 GENERAL OBLIGATIONS 6 LABOUR 7 MATERIALS AND WORKMANSHIP 8 COMMENCEMENT, COMPLETION AND DELAYS 9 EXCISION AND SUSPENSION OF THE WORKS 10 MAINTENANCE AND DEFECTS 11 MEASUREMENT, VARIATIONS, VALUATIONS AND CLAIMS 12 PRIME COST, PROVISIONAL AND CONTINGENCY SUMS 13 CONSTRUCTIONAL PLANT, TEMPORARY BUILDINGS AND MATERIALS 14 CERTIFICATES AND PAYMENTS 15 REMEDIES AND POWERS 16 SPECIAL RISKS AND FRUSTRATION 17 AVOIDANCE AND RESOLUTION OF DISPUTES 18 NOTICES 19 DEFAULT OF THE EMPLOYER 20 CHANGE IN LAW AND FLUCTUATIONS 21 HEIGHT RESTRICTIONS 4. Points to note in using these Guidelines For simplicity, these Guidelines may not be quoting the exact wording as used in GCC2013 and should therefore be read in conjunction with GCC2013. In any event, the information contained herein must not be considered exhaustive. In case of discrepancy, the GCC2013 shall prevail over these Guidelines. The statement in italics put in brackets shown in the last line of the annotation box of each Clause in the ensuing section quotes the source of the amendments / new features. Readers are assumed to have a fair knowledge of the GCC1993. Therefore clauses in GCC 2013 that bear a very high degree of resemblance of its comparable clause in GCC 1993 will not be detailed in the following annotation boxes, instead a table listing out all such GCC 2013 clauses can be found in Appendix I to this document. These Guidelines are neither contract documents nor part of the GCC. They should not be used for legal interpretation of the GCC and should not have any legal or contractual bearing on any capital works contract. p.2

4 General amendments The term Architect is replaced by Contract Manager to suit HA s current practice. The terms workmen and sub-let are replaced by workers and sub-contract respectively to align with the Government of Hong Kong General Conditions of Contract for Building Works (1999 edition). All cross-referencing to clause numbers is updated and each clause number is given in a decimal form. Clause 1.1 Definition (Comparable Clause in GCC1993 : Clause 1(1) - Definition) 66 terms are defined in this Clause, including the following new/re-defined terms:- 1. Agreed Requested Variation 2. Articles of Agreement 3. Bills of Quantities 4. Change in Law 5. Conditions of Contract 6. DARA 7. Director of Housing 8. Enhancement Works 9. Environmental Management Plan 10. Form of Tender 11. General Conditions of Contract 12. Government 13. Hong Kong 14. Intellectual Property Rights 15. Law 16. Letter of Acceptance 17. Maintenance Works 18. Memorandum of Agreement 19. Nominated Sub-contract 20. Nominated Sub-contract Works 21. Notice of Dispute 22. Pass 23. Period of Final Measurement 24. Preliminaries 25. Requested Variation Proposal 26. Retention Money Held in respect of the Contractor 27. Retention Money Held in respect of the Nominated Sub-contractor 28. Safety Plan 29. Self-employed Worker 30. Site Personnel 31. Special Conditions of Contract 32. Specialist Sub-contract 33. Specialist Sub-contract Works 34. Specialist Sub-contractor 35. Sub-contractors Management Plan 36. Tender 37. Tender Closing Date 38. Utility Undertaking 39. Variation 40. Works Subject to Excision p.3

5 Clause 1.4 Payment (Comparable Clause in GCC1993 : Clause 1(4) Payment) Same as GCC 1993 except with minor refinement in the wording. Clause 1.5 Contract governed by Laws of Hong Kong (Comparable Clause in GCC1993 : Clause 1(5) - Contract governed by Laws of Hong Kong) Same as GCC 1993 except that the reference to statute or statutory provision is clarified to include any amendments, extensions, re-enactments or consolidations from time to time, and any orders, regulations, instruments or other subordinate legislation made pursuant to it. Clause 1.6 Gender Words importing one gender shall include any other gender. Words importing persons shall include firms, companies and corporations and vice versa. [HA s current practice, further modified to align with current practice of other Works Departments under the Development Bureau] Clause 1.7 Day The word day in this Contract means a calendar day and includes General Holidays. [ for clarity s sake] Clause 2.1 Duties and powers of the Contract Manager and the Contract Manager s Representative Clause 2.2 Duties and powers of the Surveyor and the Surveyor s Representative (Comparable Clause in GCC1993 : Clause 2 Duties and powers of the Architect and the Architect s Representative / Duties and powers of the Surveyor and the Surveyor s Representative Generally same as GCC 1993 except that in order to align with the new dispute avoidance and resolution mechanism, referral to the Architect/Surveyor for appeal on decisions of the Architect s/surveyor s Representative has been deleted. The Contractor shall provide information (including costing and pricing documents) requested by the Surveyor. [The new features are HA s current practice] Clause 3.1 Assignment (Comparable Clause in GCC1993 : Clause 3 Assignment) In addition to the provision in GCC1993, the Contractor shall provide as the Employer may require, details for the application of consent for assignment. [The new requirement is HA s current practice] p.4

6 Clause 3.2 Sub-contracting (Comparable Clause in GCC1993 : Clause 4 Sub-letting) In addition to the provision in GCC 1993, the Contractor shall be permitted to sub-contract a part of the Works subject to a limitation on the number of tiers of sub-contracting as may be specified in the Contract. The Contractor shall submit the Sub-Contractors Management Plan and any subsequent revision(s) to the Contract Manager in accordance with the requirements as specified in the Specification and elsewhere in the Contract. The Contractor shall employ his own staff for management and supervision of sub-contractors. The Contractor shall select a sub-contractor, where specified in the Contract, from the relevant list in the Specification. The Contractor shall ensure each of the sub-contracts (including Specialist Sub-contracts and Nominated Sub-contracts) contains provisions consistent with the Main Contract particularly in relation to prompt payment of fair wages to workers, site safety and site security. The Contractor shall also ensure that his subcontractors do not sub-contract the whole of the works sub-contracted to them. Clause 4.1 Documents mutually explanatory (Comparable Clause in GCC1993 : Clause 5 Documents mutually explanatory) Generally the same as GCC 1993 with refinement in drafting, except that the order of precedence of the documents forming part of the Contract may be provided in the Contract, but in any case the SCC shall prevail over the GCC for the purpose of interpretation. Clause 4.4 Information not to be divulged (Comparable Clause in GCC1993 : Clause 8 Information not to be divulged) The Clause generally follows the same clause in GCC It is however clarified that the Contractor may only disclose information relating to the Contract to his sub-contractor or any person in strict confidence and on a need-to-know basis. The Contractor shall ensure that information will not be divulged for other purposes by such sub-contractor or person. The Contractor shall indemnify and keep indemnified the Employer against all losses, liabilities, damages and expenses of any nature whatsoever the Employer may suffer as a result of a breach of the nondisclosure provision by the Contractor or his employees, agents or sub-contractors. The Employer may also disclose any information for any dispute against the Contractor to the Public Accounts Committee of the Legislative Council upon its request and shall inform the Contractor prior to such disclosure. The Employer or any third party engaged by him may use any contract rates or related information provided by the Contractor for the sole purpose of cost estimation or cost analysis for the Employer s other projects. Clause 5.1 Extent of Contract (Comparable Clause in GCC1993 : Clause 10 Extent of Contract) In addition to the provision in GCC 1993, the Contractor shall liaise and co-ordinate with his sub-contractors including Specialist Sub-contractors and Nominated Sub-contractors in compliance with the Contract. p.5

7 Clause 5.3 Sureties or security (Comparable Clause in GCC1993 : Clause 12 Sureties or security) The Contractor shall only procure a bond from an insurance company or bank and submit the bond duly executed by the insurance company or bank to the Employer within 21 days of the date of the Letter of Acceptance. The standard form of the bond to be procured is provided in the appendix to Conditions of Contract. Clause 5.5 Sufficiency of Tender (Comparable Clause in GCC1993 : Clause 14 Sufficiency of Tender) Same as GCC 1993 except with minor refinement in the wording. Clause 5.7 Programme to be furnished (Comparable Clause in GCC1993 : Clause 16 Programme to be furnished) In addition to the provision in GCC 1993, the Contractor shall regularly update and submit the programme during the currency of the Works at the intervals stated in the Contract, except for events stated in subclause (2) where the updated programme shall be submitted within 28 days from each of the occasions:- - Contract Manager s granting of EOT (Re: sub-clause (2)(a)) - Contract Manager s notification that the rate of progress of the Works/Section is too slow (Re: subclause (2)(b)) - Contract Manager s written request to update (Re: sub-clause (2)(c)) Clause 5.8 Contractor s superintendence (Comparable Clause in GCC1993 : Clause 17 Contractor s superintendence) In addition to the provision in GCC 1993, the Contractor s on-site representative shall be proficient in both Chinese and English, and the Contractor shall provide and maintain a sufficient number of members of its management team to supervise the Contract Any changes made to the management team shall be informed to the Contract Manager. No member of the management team shall take up or be awarded or have a vested interest in any subcontract for any part of the Works. Clause 5.11 Safety, security and environmental management of the Works (Comparable Clause in GCC1993 : Clause 20 Safety and security of the Works) Generally the same as GCC 1993 with refinement in drafting and with inclusion of the obligations in respect of environmental management, and that the Contractor shall submit the Safety Plan and the Environmental Management Plan and their subsequent revisions to the Contract Manager according to the specified requirements. p.6

8 Clause 5.12 Care of the Works (Comparable Clause in GCC1993 : Clause 21 Care of the Works) Generally same as GCC 1993, except that the following event is added as an excepted risk (i.e. a total of 9 events are now defined as excepted risks ): ionizing radiations or contamination by radioactivity from any nuclear fuel or from any nuclear waste or from the combustion of nuclear fuel, radioactive toxic explosive, or other hazardous properties of any explosive, nuclear assembly or nuclear component thereof provided always that the same are not caused in whole or in part by the Contractor or any sub-contractor. Clause 5.13 Death of or injury to any person or loss of damage to any property (Comparable Clause in GCC1993 : Clause 22 Damage to persons and property) Generally the same as GCC 1993 with minor refinement in the wording. Clause 5.14 Third Party Insurance Purpose: This is a new provision to require the Contractor to procure third party insurance for the Works based on a specimen policy. The Contractor shall keep in force a third party insurance policy from and including such notified date for commencement of the Works up to and including the certified date of completion of the maintenance obligations*, in the joint names of the Contractor, the Employer, the power supply company (where gridconnected photovoltaic system is specified) and the Contractor s sub-contractors of any tier. The list of approved insurers is specified in the Contract, the minimum amount of the insurance to be procured is stated in the appendix to the Form of Tender, and the specimen policy is provided in the appendix to the Conditions of Contract. The Contractor shall lodge with the Employer the original policy, the receipt of premiums and confirmation letters issued by insurance company/broker/agent. An insurance policy with modified terms proposed by the Contractor may be accepted if, through no fault of the Contractor, he cannot procure an insurance policy that is consistent with the specimen policy. Such proposal must be accompanied with a proposed adjustment to the Contract Sum. * If there is more than one certified date of completion of the maintenance obligations, then up to and including the last date of such dates of completion of the maintenance obligations. Clause 5.15 Design responsibility (Comparable Clause in GCC1993 : Clause 23 Design responsibility In addition to the provision in GCC 1993, in the case where there is Contractor s Design to be carried out by the Contractor, the Contractor shall have the similar liability for his own design as a professional designer would do to the Employer. For Contractor s design, the Contractor shall comply with the design checking procedures provided in the Contract and ensure that the plant, equipment and materials selected by him are fit for the purpose intended. [This clause is derived from current practice of other Works Departments under the Development Bureau on similar subject] p.7

9 Clause 5.16 Use of Intellectual Property Rights Purpose: This new provision clarifies the ownership and rights of utilization of IPRs for the Works. All Intellectual Property Rights (IPR) incorporated or utilized in such work under Contractor s design or Agreed Requested Variation (re: Clause 11.8) shall vest in the Contractor unless otherwise stated. After the date of completion of the Works or upon termination of the Contractor s employment, the Contractor will be deemed to have granted the Employer and the subsequent owners or occupiers of the Works of a non-exclusive irrevocable licence to utilize the IPR in connection with the execution of the Works and/or subsequent alteration, extension and maintenance thereof by the Employer. No separate written agreement or consent from the Contractor is required. [This new provision is derived from current practice of other Works Departments under the Development Bureau on similar subject] Clause 5.17 Indemnity for Intellectual Property Rights (Comparable Clause in GCC1993 : Clause 28 Patent rights and royalties) In addition to the provision in GCC1993, this Clause has been significantly expanded and updated the previous concept of patented rights, design and trademarks, etc. to the full range of IPR (re: Clause 1.1). Moreover, the indemnity requirement on the Contractor is to be continued even after the fulfilment of all maintenance obligations or the Contractor s employment has been terminated. Obligations of the Contractor over any alleged infringement of IPR are also set out in details. [Modifications in this clause are derived from current practice of other Works Departments under the Development Bureau on similar subject.] Clause 5.22 Giving of notices and payment of fees (Comparable Clause in GCC1993 : Clause 29 Giving of notices and payment of fees) Generally same as GCC 1993, except that the requirement of having new fees or increase in existing fees imposed after the Tender Closing Date to be borne by the Contractor has been removed. Clause 5.28 Clearance of the Site on completion (Comparable Clause in GCC1993 : Clause 35 Clearance of the Site on completion) Generally same as GCC 1993 except with minor refinement in the wording, and that the same requirement applies to Section(s) that is completed. Clause 5.30 Prohibition of offering gratuities (Comparable Clause in GCC1993 : Clause 37 Offering gratuities) Generally same as GCC 1993 except with minor refinement in the wording, and with additional ethical commitment related requirement imposed on the Contractor. The additional ethical commitment related requirement includes declaration by the Contractor s employees, representatives, agents and sub-contractors in writing of any conflict or potential conflict between their personal/financial interests and their duties in connection with the Contract. p.8

10 Clause 5.31 Site cleanliness (Comparable Clause in GCC1993 : Clause 38 Site cleanliness) Generally same as GCC 1993 except with minor refinement in the wording. Clause 5.32 Disposal ground Purpose: This new provision is to govern the disposal grounds to be used by the Contractor. The Contractor shall dispose construction waste in disposal grounds designated in the Contract or as directed by the Contract Manager. The Contractor may propose using alternative disposal ground which shall be subject to Contract Manager s approval. [referenced from current practice of other Works Departments under the Development Bureau] Clause 5.33 Care of the Works insurance Purpose: This is a new provision to require the Contractor to procure Care of the Works insurance for the Works based on a specimen policy. The Contractor shall keep in force a care of the works insurance policy from and including such notified date for commencement of the Works up to and including the day 28 days from the certified date of completion of the Works/Section, in the joint names of the Contractor, the Employer and the Contractor s subcontractors of any tier. The list of approved insurers is as specified in the Contract, the minimum amount of the insurance to be procured is stated in the appendix to the Form of Tender, and the specimen policy is as provided in the appendix to the Conditions of Contract. The Contractor shall lodge with the Employer the original policy, the receipt of premiums and confirmation letters issued by insurance company/broker/agent. Insurance policy with modified terms proposed by the Contractor may be accepted if, through no fault of the Contractor, he cannot procure an insurance policy that is consistent with the specimen policy. Such proposal must be accompanied with a proposed adjustment to the Contract Sum. This insurance is not applicable to Enhancement Works (re: Clause 11.9) p.9

11 Clause 6.2 Fair Wages (Comparable Clause in GCC1993 : Clause 40 Fair Wages) In addition to the provision in GCC1993, the coverage of protection is extended to employees of subcontractors of any tiers and Nominated Sub-contractors, and to any person claiming or alleged to be a Selfemployed Worker but found by the Labour Tribunal or the Court being actually an employee. For amount that is paid by the Employer to the Contractor s employee on behalf of the Contractor under this Clause, the Employer can recover such amount from any money due or becoming due to Contractor under this Contract or any other contract between the Employer and the Contractor. For amount that is paid by the Employer on behalf of the Nominated Sub-contractor to the employee of the Nominated Sub-contractor, the Employer can recover such amount from any money due or becoming due to the Contractor under the Contract. Clause 6.3 Passes (Comparable Clause in GCC1993 : Clause 41 Passes) In addition to the provision in GCC1993, provisions of issuing Passes to workers, Site Personnel and visitors to the Site are set out in greater detail, and include: 1. the setting up and maintenance of a system for controlling and regulating the admission of personnel to the Site. 2. the keeping and maintaining of proper record of Passes and a list of Passes that were reported lost or not returned to the Contractor for checking by the Employer, the Contract Manager, or their representatives. Clause 7.1 Quality of materials, workmanship and tests (Comparable Clause in GCC1993 : Clause 42 Quality of materials, workmanship and tests) In addition to the provision in GCC1993, the Contractor shall bear the costs of Contract Manager s attendance in examinations, measurements or tests and all repetitions thereof that are intended or provided for in the Contract. If the Contract Manager orders any examination, measurement or test other than those intended or provided for in the Contract, the associated expense and costs (including costs of Contract Manager s attendance) shall only be borne by the Contractor if such examination, measurement or test shows that the materials or workmanship not to be in accordance with the Contract or the Contract Manager s instructions. Clause 7.6 Warranty Purpose: This is a new provision which requires the Contractor to warrant to the Employer in relation to certain parts of the Works. The Contractor is required to provide unconditional warranty for a specified period of time on certain materials, equipment or installation works specifically required in the Contract. The Contract may also require deeds of warranty with specified terms and conditions from manufacturer, supplier, agent, sub-contractor, etc. procured through the Contractor. p.10

12 Clause 8.1 Commencement of the Works (Comparable Clause in GCC1993 : Clause 47 Commencement of the Works) The principle is generally the same as GCC 1993, except that provision in respect of sectional commencement is added. [HA s new initiatives] Clause 8.2 Possession of the Site (Comparable Clause in GCC1993 : Clause 48 Possession of the Site) Same as GCC1993 except that the original sub-clause (2) of Clause 48 of GCC1993 has been deleted since the same has been provided for under Clause 11.5(1) Notice of claims. Clause 8.3 Time for completion (Comparable Clause in GCC1993 : Clause 49 Time for completion) Generally same as GCC 1993, except that certain works (e.g. emergency works) or in specified circumstances as listed under sub-clause (2), works can be carried out by the Contractor on General Holidays if the Contract Manager is advised of the need and the Contract Manager does not object. If the Contractor wishes to carry out on General Holidays other works not provided for in this Clause, he shall notify the Contract Manager with reasons in writing and obtain the Contract Manager s approval before carrying out such work. The Contractor shall also observe all his obligations required by law when carrying out such work. Clause 8.4 Extension of time for completion (Comparable Clause in GCC1993 : Clause 50 Extension of time for completion) In addition to the provision in GCC1993, the extension of time (EOT) claim is separated into two categories: (A) EOT due to prescribed weather conditions The Contract Manager shall, within 42 days of the receipt of the Contractor s written application, grant one day EOT for any single occurrence of:- - rainfall exceeding 20mm recorded by the Hong Kong Observatory - Tropical Cyclone Warning Signal No. 8 or above issued by the Hong Kong Observatory - Black Rainstorm Warning Signal issued by the Hong Kong Observatory. Occurrence of two or more of the above circumstances in any single day shall be deemed to be a single occurrence, e.g. if both a rainfall exceeding 20mm and a Black Rainstorm Warning occur on the same day, then only one day of EOT will be granted. The process does not involve the Contractor s proof of delay to the progress of the Works. [Cont d on next page] p.11

13 Clause 8.4 Extension of time for completion (Cont d) (Comparable Clause in GCC1993 : Clause 50 Extension of time for completion) (B) EOT due to causes other than prescribed weather conditions The Contractor is to serve an EOT notice accompanied with particulars of the delay within 28 days of the cause of the delay becoming apparent. Failure to observe this notice requirement shall mean that the EOT claim is waived by the Contractor and will not be considered by the Contract Manager. The Contractor has to prove delay to the progress of the Works based on the stated permissible grounds. Some new permissible grounds for EOT have been added (i.e. a total of 13 events are now permissible grounds for EOT under this category):- - Subsequent effect of issued Tropical Cyclone Warning Signal No. 8 or above - Subsequent effect of issued Black Rainstorm Warning Signal - Unforeseeable utility work not forming part of the Works - Change in Law The Contract Manager may require further particulars from the Contractor within 14 days of the Contractor s notice. The Contractor shall respond to the Contract Manager s requirement within 14 days of the request, failing which the Contract Manager shall assess the EOT claim based on the information available. The Contract Manager shall decide on the Contractor s EOT entitlement, if any, within 60 days after the receipt of the Contractor s notice. The 60 days period can be extended by not more than 60 days with the mutual written agreement of the Contract Manager and the Contractor. Any extension to the period by more than 60 days shall be subject to mutual agreement of the Employer and the Contractor. If the Contract Manager decides that the Contractor is not entitled to an EOT, he shall notify the Contractor accordingly. For delays with continuing effect, the Contract Manager may, but is not obliged to, grant an interim EOT. [HA s current practice with due modifications] Clause 8.6 Liquidated damages for delay (Comparable Clause in GCC1993 : Clause 52 Liquidated damages for delay) The principle is generally the same as GCC 1993, except that when the Contract Manager instructs any omission of a part of the Works/Section(s) falling under Works Subject to Excision, the rate for liquidated damages in respect of the Works/the concerned Section(s) shall be reduced proportionately. Clause 8.7 Completion of the Works (Comparable Clause in GCC1993 : Clause 53 Completion of the Works) Generally same as GCC 1993, except that for the purpose of this Clause, the word Works shall exclude Enhancement Works as well as Maintenance Works. p.12

14 Clause 9.1 Works Subject to Excision Purpose: This is a new provision to allow excision of specified part(s) of the Works by the Contract Manager. The Contract may specify any part of the Works that may be subject to excision (known as Works Subject to Excision ), the Contractor shall only carry out such work upon instruction to proceed from the Contract Manager. If the Contract Manager has not issued instruction to proceed within the time period specified in the Contract in respect of the Works Subject to Excision, the Contractor shall seek the Contract Manager s direction within 7 days from the expiry of the specified time period. If the Contractor has not sought direction from the Contract Manager or unless the Contract Manager directs to proceed within 14 days from the Contractor s request, the part of the Works shall be deemed to be excised. If the specified part of the Works is excised or deemed excised, the amount of such excised work shall be determined by the Surveyor and deducted from the Contract Sum. Clause 9.2 Suspension of the Works (Comparable Clause in GCC1993 : Clause 54 Suspension of the Works) In addition to the provision in GCC 1993, for claims concerning suspension orders, the Contractor shall serve his notice of intention to claim to the Contract Manager within 28 days of the date of the suspension order with the notice copied to the Surveyor. The Contract Manager shall decide whether the Contractor has incurred or likely to incur any expenditure in relation to the suspension order and he shall, within 21 days from the date of serving of the Contractor s notice, either instruct the Surveyor to ascertain such expenditure or reject such claim in writing. If the Contractor has served a notice of claim for EOT in relation to the suspension and the Contract Manager has granted an EOT for the suspension, the notice of claim for EOT shall be taken to the effect that a notice of intention to claim for additional expenditure in relation to the suspension has also been served. Claims for additional expenditure shall not be entertained if the Contractor fails to observe the notice requirement under this Clause. Clause 10.1 Execution of Maintenance Works (Comparable Clause in GCC1993 : Clause 56 Execution of work of repair) In addition to the provision in GCC 1993:- The term work of repair is replaced by Maintenance Works, and is defined in Clause 1.1. The Maintenance Works (MW) are to be phased in three stages:- - Stage 1 6 months from the last certificate of completion - Stage 2 6 months from end of Stage 1 - Stage 3 from end of Stage 2 till 14 days after the end of the Maintenance Period (Note: Such phasing is to align with the 3-stage release of retention money as provided in Clause 14.2(5) Interim payments, retention money and interest and the Specification.) p.13

15 Clause 10.1 Execution of Maintenance Works (Cont d) (Comparable Clause in GCC1993 : Clause 56 Execution of work of repair) If the Contract Manager opines that the MW is due to the use of material or workmanship not in accordance with the Contract, or due to any Contractor s default, the Contract Manager will state clearly in his instruction and the Contractor will have to complete the said works within the time specified in the Contract. If the Contract Manager opines that the necessity of some MW is due to other causes, the Contract Manager will state clearly in his instruction and the Contractor will have to complete the said works within the Maintenance Period or as soon as practicable. If the Contract Manager requires some MW to be carried out urgently, the Contractor shall comply with the Contract Manager s corresponding instruction. As soon as the Contractor considers that the execution of MW instructed by the Contract Manager is likely to be delayed, he shall give notice in writing to the Contract Manager. The Contractor shall serve a notice in writing requesting a written confirmation of completion from the Contract Manager in respect of the MW when he considers he has fully complied with each of the Contract Manager s written instructions to carry out the MW. The Contractor will receive a written confirmation from the Contract Manager when any of the following occurs:- - All MW pertaining to the Nominated Sub-contract Works of a NSC with respect to any one of the MW stages have been completed in accordance with the manner required under the Contract - All MW pertaining to the Works other than the Nominated Sub-contract Works with respect to any one of the MW stages have been completed in accordance with the manner required under the Contract. Clause 11.1 Bills of Quantities and measurement or schedule of rates (Comparable Clause in GCC1993 :Clause 59 Bills of Quantities and measurement or Schedule of Rates) Generally same as GCC 1993, except that:- - The Surveyor shall provide his measurements and valuations progressively to the Contractor. - The Contractor will receive from the Surveyor a copy of the statement of final account (a summary of all adjustments to the Contract Sum) within the Period of Final Measurement (PFM). - For determination of the PFM, if sectional completion is provided for in the Contract, the certificate of completion under this sub-clause shall mean the last of such certificates issued under Clause 8.7 Completion of the Works. Clause 11.2 Variation (Comparable Clause in GCC1993 : Clause 60 Variations) Generally same as GCC 1993 except that: 1. the Contract Manager is not obliged to order Variation to works for which the Contractor is responsible for their design; and 2. the Contract Manager may order Variation to any part of the outstanding work referred to in Clause 8.7 Completion of the Works during the Maintenance Period. p.14

16 Clause 11.3 Valuing Variation (Comparable Clause in GCC1993 : Clause 61 Valuing variations) Generally same as GCC 1993, except that:- 1. The first proviso of this Clause is not applicable to the valuation of omission resulting from Works Subject to Excision (re: Clause 9.1). 2. The process of agreeing on valuation of Variation and issue of Surveyor s determination is dealt with under Clause 11.7 Surveyor s determination and ascertainment. 3. Cost incurred by reason of the progress of the Works or any Section or any part thereof having been materially affected by any Variation shall be ascertained pursuant to Clause 11.6 Ascertainment of claims instead of being determined by the Surveyor under this Clause. Clause 11.5 Notice of claims (Comparable Clause in GCC1993 : Clause 63 Disturbance to the progress of the Works) Purpose: To stipulate all relevant procedural requirements for the submission of notice of intention to claim expenditure or additional payment The Contractor shall, within 28 days of the event set out in sub-clauses(1)(a)(i) to (1)(a)(vi) becoming apparent, serve in writing a notice of intention to claim for expenditure incurred on the Contract Manager with a copy to the Surveyor. If the Contract Manager decides that:- - such Contractor s notice is valid, he shall, within 21 days of the date of serving of such notice, instruct the Surveyor to ascertain the expenditure. - such Contractor s notice is invalid, he shall notify the Contractor of his decision in writing with a copy to the Surveyor within 21 days of the date of Contractor s notice. If the Contractor intends to claim any additional payment under any provision of the Contract (other than Clause 7.5(4), 9.2(2), 11.5(1) and 12.3(1)(b) because the subjects have been dealt with separately in the respective clauses), the Contractor shall within 28 days of the event becoming apparent serve in writing a notice of intention to claim to the Surveyor with a copy to the Contract Manager. If the Contractor fails to submit a notice of intention to claim within 28 days of the event becoming apparent, the claim shall not be considered and be deemed to have been waived by the Contractor. Clause 11.6 Ascertainment of claims (Comparable Clause in GCC1993 : Clause 64 Notice of claims) Purpose: To stipulate all relevant procedural requirements in relation to ascertainment of claims for expenditure or additional payment The Contractor shall keep contemporary records to support his claim and submit to the Surveyor details of the records kept in respect thereof. Subject to the 3 specific circumstances stated below, the Contractor shall submit the details of the claim to the Surveyor within 60 days from his serving of the notice of intention to claim. (i) For claims occasioned by event with late materializing effects, the Contractor shall notify the Surveyor of the late commencement of the effects within 60 days from the date of serving the notice of intention to claim and submit the detailed claim within 60 days from a date to be agreed between the Surveyor and the Contractor. Failing agreement, the Contractor shall submit the details of the claim within 60 days from such date as fixed by the Surveyor which in the opinion of the Surveyor the effect of the event giving rise to the claim commences. p.15 [Cont d on next page]

17 Clause 11.6 Ascertainment of claims (Cont d) (Comparable Clause in GCC1993 : Clause 64 Notice of claims) (ii) For claims occasioned by event with continuing effect, the Contractor shall notify the Surveyor of the continuing effect within 60 days from the date of serving the notice of intention to claim and submit the details of the claim within 28 days from a date to be agreed between the Surveyor and the Contractor. Failing agreement, the Contractor shall submit those details within 28 days from such date as fixed by the Surveyor which in his opinion reasonably represents the date after which the ascertainment of the entirety of the claim becomes possible. (iii) For claims occasioned by event which is the same as the event for which the Contractor has submitted a notice of claim for EOT, the Contractor shall submit the detailed claim within 28 days after the receipt of the Contract Manager s granting of such EOT. The Surveyor may within 14 days after receipt of the Contractor s detailed claim, request the Contractor to submit further information for the purposes of the Surveyor s ascertainment of the Cost. The Contractor shall respond to the Surveyor s request within 28 days from receipt of such request. The Surveyor is to ascertain the Cost within 60 days after the receipt of the information required to be submitted by the Contractor. Contractor s compliance with the submission requirements under sub-clause (2) is a condition precedent to the Contractor s entitlement to recovery of any Cost under sub-clause (4). If the Contractor fails to respond to the Surveyor s requirement under sub-clause (3), the Surveyor shall consider such claim only to the extent that the Surveyor is able to on the information available. The Surveyor is not obliged to take account of any particulars of the claim received by him after the expiry of a period of 180 days from the date of completion of the Works. Clause 11.7 Surveyor s determination and ascertainment Purpose: This is a new provision to allow sufficient time for thorough exchange of information and views between the Surveyor and the Contractor prior to issue of Surveyor s determination. The time for issue of any Surveyor s determination as provided in the Contract can only be altered by written agreement between the Surveyor and the Contractor. Upon receiving Surveyor s assessment, the Contractor shall within 42 days either agree in writing with the assessment or make a request with reasons in writing to the Surveyor for a review of the assessment. If the Contractor does not respond within the 42 days, the assessment shall be deemed to have been agreed. If the Contractor agrees or is deemed to have agreed with the assessment, the Surveyor will within 14 days issue a determination. If the Contractor disagrees with the assessment, the Surveyor will issue a reviewed assessment within 28 days from the Contractor s request. For the reviewed assessment issued by the Surveyor, if the Contractor disagrees to the reviewed assessment, he should request the Surveyor for a final review of the assessment within 14 days after receipt of the reviewed assessment. If the Contractor does not respond within the 14 days period, the reviewed assessment shall be deemed to have been agreed. The Surveyor will issue a determination within 14 days from the date of Contractor s agreement or deemed agreement to the reviewed assessment, or if the Contractor has requested for a final review pursuant to sub-clause 2(e), the Surveyor will make a final review of the reviewed assessment and issue a determination within 14 days from the date of the Contractor s request. [Cont d on next page] p.16

18 Clause 11.7 Surveyor s determination and ascertainment (Cont d) Note that any disagreement to the Surveyor s determination shall be raised by the Contractor by serving a Notice of Dispute within 28 days of the issuance of the determination, failing which the determination shall become final and binding to both the Employer and the Contractor. Clause 11.8 Requested Variation Purpose: This is a new provision to allow Contractor to propose Requested Variation for the Works. The Contractor may submit a Requested Variation Proposal (RVP) before completion of the Works or any Section stating the deadline for acceptance of the RVP by the Contract Manager. The Contract Manager will not accept a RVP which would:- - involve a change to works the design of which is the responsibility of the Contractor under the Contract - result in an increase in the Contract Sum - cause delay to completion of the Works - render the quality of the Works inferior to that specified in the Contract The Contractor shall include information in the RVP as outlined in sub-clause (2). No cost or expense for the preparation and submission of a RVP is reimbursable to the Contractor unless and until the RVP is accepted by the Contract Manager and a Memorandum of Agreement is issued therefor. The Contractor shall pay to the Employer reasonable charges for the technical checking of the RVP. The Contract Manager may request the Contractor to amend the RVP and the Contractor may then make such amendments. If the Contractor fails to respond to the Contract Manager s request or the Contract Manager has not issued a Memorandum of Agreement before the deadline stated in the RVP, the RVP shall be deemed to have been rejected. If instructed by the Contract Manager, the Surveyor shall value the RVP in accordance with the principles set out in Clause 11.3 Valuing Variation ). If the Contract Manager is satisfied with the RVP in terms of both the technical aspect and the amount of saving, the Contract Manager may issue a Memorandum of Agreement to the Contractor setting out all the agreed terms. The RVP will then become the Agreed Requested Variation. A Memorandum of Agreement shall contain all the information as set out in sub-clause (5). The Contractor shall indemnify and keep indemnified the Employer against all losses arising from any Agreed Requested Variation (ARV). The cost saving from an ARV shall be shared as follows: Employer : Contractor = 50 : 50 [where the Contractor (not a NSC) is the initiating party of the ARV] Employer : Contractor : NSC = 50 : 7.5 : 42.5 [where a NSC is the initiating party of the ARV] The Contract Sum shall be adjusted according to the above cost sharing ratios as stipulated in sub-clause 7(b). [HA s new initiatives] p.17

19 Clause 11.9 Enhancement Works This is a new provision to empower the Contract Manager to order minor improvement works (termed as Enhancement Works in GCC2013) after certified completion of the Works or a Section or a part thereof. The Contract Manager may issue written instruction to order Enhancement Works during the period of 180 days following the certified date of completion of the Works or the relevant Section or the relevant part thereof. The Contract Manager shall state the time for completion of the Enhancement Works in his written instruction. No Enhancement Works with a date for completion beyond the Maintenance Period shall be ordered by the Contract Manager. The Enhancement Works shall be valued by the Surveyor by means of fair valuation. [HA s new initiatives] Clause 12.1 Use of Prime Cost, Provisional and Contingency Sums (Comparable Clause in GCC1993 : Clause 65 Use of Prime Cost, Provisional and Contingency Sums) Generally same as GCC1993 with an additional requirement that the NSC s employment shall not be terminated due to the NSC s failure to submit a bond, without the Employer s prior consent. Clause 13.1 Vesting of Constructional Plant and temporary buildings (Comparable Clause in GCC1993 : Clause 71 Vesting of Constructional Plant and temporary buildings) Generally same as GCC 1993 but supplemented with provisions relating to the re-vesting in the Contractor of Constructional Plant and temporary buildings upon completion of the Works. Clause 13.3 Removal of Constructional Plant, temporary buildings and materials (Comparable Clause in GCC1993 : Clause 73 Removal of Constructional Plant, temporary buildings and materials) Generally same as GCC 1993 with minor refinement in the wording. Clause 13.4 Hired and hire-purchase Constructional Plant (Comparable Clause in GCC1993 : Clause 74 Hired and hire-purchase Constructional Plant) The Contractor shall submit an undertaking to the Employer for items of Constructional Plant which, in the Contract Manager s opinion, are essential for the completion of the Works and are difficult to replace in the event of termination of the Contractor s employment. If the Contractor fails to submit such undertaking, the Employer shall be entitled to withhold a sum equal to 5 percent of the total certified sum from interim payment (subject to a capping limit at the total market value of the concerned Constructional Plant) until such failure has been rectified or the item of Constructional Plant has been removed from Site in accordance with the Contract. Upon rectification of the failure or removal of the concerned Constructional Plant by the Contractor the Employer shall release such withheld amount without interest to the Contractor. p.18

20 Clause 14.1 Contractor s interim statements (Comparable Clause in GCC1993 : Clause 78 Contractor s interim statements) The Contractor shall deliver to the Surveyor at the end of each period of interim certificates stated in the appendix to Form of Tender a statement showing: - the estimated contract value of the work done up to the end of such period, with the amounts payable for daywork, NSC and adjustment for Variations listed separately - the estimated contract value of the materials specified in the Contract that have been delivered to the Site for use in permanent work - any other estimated sums the Contractor considers due under the Contract For the estimated contract value of work done of items and related information concerning site safety, environmental management and other sundry requirements up to the end of such period, the Contractor shall submit the information in another statement to the Contract Manager no later than 3 days after the end of each period of interim certificates. The Contract Manager and the Surveyor may specify the format and the number of copies of the statements to be submitted. The preparation cost of the statements shall be borne by the Contractor. The Contractor shall also submit a declaration confirming compliance with the provisions on confidentiality and ethical commitment as stated in Clauses 4.4 Information not to be divulged and 5.30 Prohibition of offering gratuities respectively. Failure to do so will entitle the Employer to withhold payment until such declaration is received, and such withheld amount when released will be without interest. Clause 14.2 Interim payments, retention money and interest (Comparable Clause in GCC1993 : Clause 79 Interim payments, Retention Money and interest) The valuation by the Surveyor for interim payments under this Clause is generally the same as GCC Two terms, namely Retention Money Held in respect of the Contractor and Retention Money Held in respect of the NSC, are introduced to differentiate the accounts held for the Contractor and each of the NSCs. If the Employer fails to pay within 21 days of the Surveyor s certification of interim payment, the unpaid amount shall be subject to simple interest on a daily basis and calculated at a rate equivalent to 1% per annum above the average of the best lending rates of the three Hong Kong note-issuing banks prescribed from time to time. The maximum rate of interest to be paid by the Employer for any causes under or arising out of the Contract is set at 1% above the aforesaid average of the best lending rates. The Contract Manager may refuse to instruct the Surveyor to value the items for site safety, environmental management and other sundry requirements in case the Contractor fails to submit the required information in his interim statement. [HA s current practice, also referencing to suggested change of practice of other Works Departments under the Development Bureau] p.19

21 Clause 14.3 Maintenance certificate (Comparable Clause in GCC1993 : Clause 80 Maintenance certificate) The Contract Manager shall upon the expiry of the Maintenance Period of the Works, or where there are Sections, upon expiry of the last Maintenance Period of the Sections, issue the following two maintenance certificates:- - A separate partial maintenance certificate in respect of the Nominated Sub-contract (NS) Works of each NSC - A separate maintenance certificate in respect of the Works except the NS works The Contract Manager shall state in the certificate the date on which the Contractor has completed his obligation to execute that part of the Works in respect of which the certificate is issued. If the Contract Manager considers that the maintenance certificate for the Works excepting the NS works can be issued but any maintenance obligations of the partial maintenance certificates remain unfulfilled, he may still issue a maintenance certificate, but on condition that the Contractor shall remain liable to complete that part of the Works which remained outstanding. The partial maintenance certificates or maintenance certificate does not constitute approval of any work in respect of which the certificates are issued which had not been carried out in accordance with the Contract and the Contract Manager with all due diligence could not have discovered such non-compliance. Clause 15.1 Termination of the Contractor s employment (Comparable Clause in GCC1993 : Clause 81 Forfeiture) Generally same as GCC 1993 save that:- - Bribery by the Contractor or any of his employees, representatives or agents has been added as a ground for termination - Failure by the Contractor to submit the bond required under the Contract is also added as a ground for termination - In connection with the termination of the Contractor s employment, any debt due from the Contractor to the Employer as certified by the Surveyor upon expulsion of the Contractor shall be paid by the Contractor within 21 days of the day following the Surveyor s certification. Clause 16.1 Special risks (Comparable Clause in GCC1993 : Clause 84 Special risks) Generally same as GCC 1993 except that act of terrorists in Hong Kong is added as one of the Special Risks. p.20