GOVERNMENT OF MALAYSIA STANDARD FORM OF DESIGN & BUILD / TURNKEY CONTRACT (PWD FORM DB/T)

GOVERNMENT OF MALAYSIA STANDARD FORM OF DESIGN & BUILD / TURNKEY CONTRACT (PWD FORM DB/T)

CONDITIONS OF CONTRACT FOR DESIGN & BUILD AND TURNKEY PROJECTS (PWD FORM DB/T) This form has been approved by Attorney General s Chambers (Reference: PN. (Adv) 250)

GENERAL CONDITIONS OF CONTRACT Table of Contents ARTICLES OF AGREEMENT CONDITIONS OF CONTRACT AA/1 1. Interpretation, definitions, etc. 1 1.1 Method of reference to s 1 1.2 Articles etc. to be read as a whole 1 1.3 Definitions 1 1.4 Singular and Plural Terms 3 1.5 Marginal Headings or Notes 3 2. Contractor's Obligations 3 2.1 Contractor s General Obligation 3 2.2 Design Guarantee 3 2.3.1 Any reference to Contractor's design to include design proposed by others. 4 2.3.2 Contractor s Design Responsibility 4 2.4.1 Quality Assurance 4 2.4.2 Contractors duties, etc not relieved 4 2.5 Statutory Checks 4 2.6 Contractor responsible for safety 4 2.7.1 Care of the works. 4 2.7.2 Excepted Risks 5 2.8.1 Duties of the Contractor to inform of any accident, and failure etc. 6 2.8.2 No remedial works by the Contractor unless directed. 6 2.8.3 Contractor to render necessary assistance 6 2.8.4 Urgent Repairs 6 ii

Table Of Contents (Cont'd) 2.9.1 Employment of Consultants 7 2.9.2 Proposed Consultants 7 2.9.3 Employment of Consultants with the consent of the P.D. 7 2.10.1 Bumiputera Participation 7 2.10.2 List of Bumiputera organization 7 2.10.3 Default by Contractor 8 2.10.4 Contractor s obligations unchanged 8 2.11.1 Programmed of works to be furnished 8 2.11.2 Action by the P.D. 8 2.11.3 Modified Programmed or Further Information 9 2.11.4 Programmed to be Revised 9 2.11.5 Contractor to remain responsible 9 3. P.D.'s right to take action 10 Officer empowered to act on behalf of Government and to approve variations 10 4. P.D.'s Instructions 10 4.1 Compliance with P.D.'s instructions 10 4.2 Action of P.D. in the event of non-compliance with instructions 10 4.3 P.D.'s instruction to be in writing 10 5. Notices 11 6. Custody and Supply of Contract Documents 11 6.1 Custody of Contract Documents. 11 6.2 Copies of Contract Documents. 11 6.3 Drawings etc. of the Contractor. 11 iii

6.4 Availability of documents on site. 11 6.5 Supply by Contractor of `as built' drawings etc. 11 6.6 Use of documents 12 6.7 Contractor's plans and specifications to use S.I. Units. 12 7. Sufficiency of Contract Documents 12 7.1 Contractor to provide everything necessary 12 7.2 Conditions to prevail 12 7.3.1 Discrepancies 12 7.3.2 Discrepancies within Contractor s Proposals 13 8. Materials, goods and workmanship 13 8.1 Standards and Codes of Practice 13 8.2 Quality of materials, goods and workmanship 13 8.3 Vouchers of materials and goods 13 8.4 Checks and Tests 13 8.5 Removal from Site - work, materials or goods 14 8.6 Tests 14 8.7 Cost of tests 14 8.8 Further tests 14 9. Restriction and Procedure on Use of Imported Materials and Goods 15 9.1 Contractor to use materials of Malaysian Origin 15 9.2 Substitution of imported materials etc. with local materials 15 9.3 Procurement based on FOB and use of Government s MTO 15 9.4 Documentary evidence of compliance 15 iv

10. Construction Plant, Equipment, Vehicles and Machineries 16 10.1 Payment of Port Dues 16 10.2 Administration of Customs Authorities 16 10.3 Importation by Agent 16 10.4 Application of custom duties 16 10.5 Landing Charges 16 10.6 Customs Clearance 16 10.7 Contractor to Supply Information 16 11. Non-removal of Materials and Equipment on site 17 12. Statutory obligation, notices, fees and charges 17 12.1 Statutory Requirements 17 12.1.1 Compliance with Statutory Requirements 17 12.1.2 Divergence between Statutory Requirements and Contract Documents 17 12.1.3 Emergency Compliance with Statutory Requirement 17 12.2 Fees, charges, rates or taxes 18 12.3.1 Effects of changes in Statutory Requirements after date of tender 18 12.3.2 Changes in Statutory Requirements requiring amendments to Contractor s Proposals 18 13. Custom Dues and Taxation 18 13.1 Custom Dues 18 13.2 Payment of tax on profit 18 13.3 Payment of Income Tax by non-malaysian Personnel 19 14. Antiquities 19 14.1 Effects of find of antiquities 19 14.2 P.D.'s instructions on antiquities found 19 14.3 Direct loss and/or expense 19 v

15. Copyright, royalties and patent rights 19 15.1 Treatment of royalties etc., indemnity to Government 19 15.2 P.D.'s instructions, treatment of royalties etc. 20 15.3 Payment of royalties, etc. 20 16. Site boundaries and setting out 20 17. Inspection of Site 21 18. Employment of Workmen 21 18.1 Malaysian citizens 21 18.2 Ratio of workmen 21 18.3 Particulars of labor 21 18.4 Source of labor 22 18.5 Sub-contractors to comply 22 19. Compliance with Employment Act 1955 etc. 22 20. Epidemics and Medical Attendance 22 20.1 Epidemic 22 20.2 Medical attendance 22 21 Days and hours of working 23 21.1 Days and hours of working 23 21.2 Contractor to bear costs 23 22. Contractor's Project Manager 23 22.1 Employment of Contractor's Project Manager 23 22.2 Instructions given to Contractor's Project Manager 23 23. Wages books and time sheets 23 24. Default in payment of wages 24 vi

25. Discharge of Workmen 24 26. Access for P.D. to the Works 24 27. Variations 25 27.1 Definition 25 27.2 Instructed variation 25 27.3 Variations for the purpose of suitability, functionality and safety 26 27.4 Cost to be borne by Contractor 26 27.5 Contractor s obligations unchanged 26 28. Valuation of Variations 26 28.1 Valuation of instructed Variation 26 28.2 Valuation of omission of work 26 28.3 Allowance for site administration etc. 26 28.4 Day works 26 28.5 Variation by Contractor affecting other works 27 28.6 Fair Valuation 27 28.7 No allowance to be made for loss or expense 27 28.8 Adjustment of Contract Sum 27 29. Provisional Sums 28 29.1 Definition 28 29.2 Adjustment of Contract Sum in respect of Provisional Sums 28 30. Contract Sum 28 30.1 Adjustment of Contract Sum to be in accordance with the Conditions 28 30.2 Adjustment of Contract Sum to be accounted for in the Interim Payments 28 vii

31. Sub-letting and Assignment 28 31.1 Sub-letting of design 28 31.2 Sub-letting of Works 29 31.3 Determination of Sub-contract 29 31.4 Employment of Sub-Contractor 29 31.5 Assignment of benefit 29 32. Artists and Tradesmen 29 33. Government's Indemnity in respect of Injury to Persons and Damage to Property 30 33.1 Injury to persons 30 33.2 Damages to Property 30 33.3 Negligence of Government or P.D. 30 34. Insurance against Injury to Persons and damage to Property 30 34.1 Insurance for personal injury or damage to property 30 34.2 Insurance Liability etc. of Government 31 34.3 Production of Policies 31 34.4 Default in insuring 31 35. Indemnities to Government in respect of claims by Workmen 32 36. Employees Social Security Act, 1969 32 36.1 Registration with SOCSO Scheme 32 36.2 Payment of Contribution 32 36.3 Default by Contractor 32 viii

37. Insurance of Works 33 37.1 Risks to be insured 33 37.2 Production of policies 33 37.3 Default in renewing insurance 33 37.4 Application of insurance money 33 38. Performance Bond 34 38.1 a) Condition precedent and validity of Banker s/insurance Guarantee 34 b) Performance Guarantee Sum in lieu of Banker s/insurance Guarantee 34 38.2 Application 34 38.3 Release of Performance Bond 34 38.4 Forfeiture 34 39. Possession of Site 35 39.1 Condition precedent to commencement of work 35 39.2 Date for possession 35 39.3 Possession by stages 35 39.4 Delay in giving possession of whole, sections or parts of the Site 35 39.5 a) Delay in giving possession of whole of the Site beyond ninety (90) days 35 b) Delay in giving possession of section or parts of the site beyond ninety (90) days 36 39.6 Postponement 36 40. Mutual Termination 40.1 Notice of Termination 37 ix

40.2 Removal and disposal of Contractor s Equipment etc. 37 40.3 Payment on Termination 37 40.4 Works practically completed 38 40.5 Final account upon termination 38 40.6 Contract to Continue in force 38 41. Completion of the Works 38 41.1 Date of completion 38 41.2 Certificate of Practical Completion 38 41.3 Time, the essence of Contract 38 42. Damages for non-completion 38 42.1 Damages for Non-completion and written notification to the Contractor 38 42.2 Reimbursement of Liquidated Damages 39 42.3 Intervention of Variations 39 43. Sectional completion 39 44. Partial Occupation/Taking over by Government 40 (a) Certificate of Partial Occupation 40 (b) Defects Liability 40 (c) Certificate of Completion of Making Good Defects 40 (d) Insurance of Works 40 (e) Reduction of Liquidated and Ascertained Damages 40 (f) Performance Bond not affected 41 x

45. Delay and Extension of Time 41 45.1 Delay and Extension of Time 41 45.2 Claims for Loss and/or Expense due to delay 43 46. Procedure for Claims 43 46.1 Notice of Claims 43 46.2 Submission of claims 43 47. Testing and Commissioning of Mechanical, Electrical and Other Services 44 47.1 Requirements for Testing and Commissioning 44 47.2 Failure to pass tests 44 47.3 Notice of tests 44 47.4 Further Adjustments to Controls 44 47.5 Records of tests 44 47.6 Commissioning of Equipment 44 48. Defects After Completion 45 48.1 Defects Liability Period 45 48.2 Schedules of Defects 45 48.3 Default of the Contractor 45 48.4 Diminution in the value of the Works due to defects etc. 46 48.5 Certificate of Completion of Making Good Defects 46 49. Unfulfilled Obligations 46 50. Interim Payments 46 50.1 a) Interim Payments based on Payment Schedule 46 b) Interim Payments based on Valuation of Works 47 50.2 Application for Interim Payments 47 xi

50.3 a) Interim Certificate based on Payment Schedule 47 b) Interim Certificate based on Valuation of Works 48 c) Honoring of Interim Certificate 48 51. Final Account and Final Certificate 49 51.1 Final Account 49 51.2 Final Certificate 49 51.3 Contractor s delay in submission of final account 49 51.4 Final certificate to be conclusive 49 51.5 Right of deduction by Government 49 51.6 Condition Precedent to Final Payment 49 52. Effect of P.D s Certificates and Payment by Government 50 53. Deduction from Money Due to Contractor 50 54. Determination of Contractor Employment 51 54.1 Defaults of Contractor 51 54.2 Bankruptcy or insolvency 51 54.3 Effect of determination of Contractor s Employment 52 55. Effect of War or Earthquake 54 56. Arbitration 54 56.1 Reference to the Officer named in Appendix 1 for a decision 54 56.2 Decision of the Officer named in Appendix 1 to be binding until completion of Works 54 56.3 Reference to the Arbitrator 54 56.4 Reference to Arbitrator shall not be commenced until after completion of the Works 55 56.5 Powers of the Arbitrator 55 xii

56.6 Discretion of the Arbitrator in respect of costs and award 55 56.7 Award of Arbitrator is final 55 56.8 Appointer of Arbitrator 55 56.9 Arbitration Act 1952 55 57. Law Governing this Contract 56 57.1 Malaysian Law 56 57.2 Contractor to accept the decision of Malaysian Court or Arbitrator 56 57.3 Enforcement of any decision or award in Contractor s country of domicile 56 58. Stamp Duty 56 SPECIAL CONDITIONS *59. Maintenance of Works and Services 57 *60. Direct Payments and Consultancy Agreement with Contractor s Consultants 58 * Delete whichever is not applicable xiii