Daily Tenders Claims Certificates -Leads to Business Tender Bulletins in South Africa & Africa for the Civil, Building and Construction Industry

09 September 2010

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47. (1)   Quantities
      (2)   Work to be measured
      (3)   Engineers intention to measure
      (4)   Contractors failure to comply
      (5)   Method of measurement

48. (1)   Provisional Sums
      (2)   Prime Cost Sums
      (3)   Provisional/Prime Cost Sums and contingency allowance
      (4)   Production of vouchers

49. (1)   Tendered rates and prices
      (2)   Application of Contract Price Adjustment Factor
      (3)   Variations in cost of special materials
      (4)   Subsequent changes in legislation

50. (1)   Adverse physical conditions and artificial obstructions
      (2)   Further notices
      (3)   Contractor to carry out additional work
      (4)   Contractors right to claim

51. (1)   Claims procedure

      (2)   Extended period for claims
      (3)   Records of facts and circumstances
      (4)   Contractors failure to comply
      (5)   Engineers ruling

      (6)   Engineers failure to rule

52. (1)   Monthly payments
      (2)   Valuation of material brought onto Site
      (3)   Retention money
      (4)   Employers obligation to pay
      (5)   Time of payment of retention
      (6)   Guarantee in lieu of retention
      (7)   Set-off and delayed payments
      (8)   Correction of certificates
      (9)   Contractors final statement
      (10) Final Payment Certificate

53          Variations exceeding 15 per cent

47.(1) Quantities

      The quantities set out in the Schedule of Quantities are the estimated quantities of the work and they are
      not to be taken as the actual and final quantities of the Works to be executed by the Contractor in
      fulfillment of his obligations under the Contract.

(2) Work to be measured

      The Engineer shall ascertain and determine the value of the Works but, when required to do so by the Engineer,
      the Contractor shall measure the work executed during each month and the materials on Site and
      shall deliver to the Engineer a supporting statement with his monthly statement in terms of Clause 52(1),
      showing the said measurements and the relevant amounts paid or payable by him for such materials
      and all other particulars required by the Engineer.

(3) Engineers intention to measure

      The Engineer shall, when he wishes to make any measurement on the Site or requires any parts of the Works
      to be measured in his presence, give notice of that fact and of the date and time at which he will be present
      to the Contractor who shall

(a) attend or send a qualified agent to assist the Engineer in making such measurement or to make such
measurement in the presence of the Engineer, and

(b) furnish all particulars required by the Engineer.

(4) Contractors failure to comply

If the Contractor, despite being required to do so, fails

(a) to submit a supporting statement in terms of Sub-Clause (2), or

(b) to attend or send his agent when given such notice in terms of Sub-Clause (3),
      then the measurement made by the Engineer or approved by him shall be taken to be the correct
      measurement of the work for the purpose of the payment certificate in respect of which the
      measurement has been made.

(5) Method of measurement

      The work shall be measured in accordance with the methods and procedures described in the Contract or,
      failing such description, in accordance with the methods and procedures applicable to the category of work
      concerned as set out in the standard methods of measurement laid down in the SABS 1200 Standardized
      Specifications current at the time of the tender.

48.(1) Provisional Sums

If any Provisional Sum is set out in the Schedule of Quantities and the work to which
the Provisional Sum relates has been ordered by the Engineer and is

(a) executed by the Contractor, it shall be valued in accordance with the terms of Clause 40,
(b) executed by a Nominated Subcontractor, the Contractor shall be reimbursed the sum or
sums paid by him to the Subcontractor, plus either

(i) a commission on the sum or sums actually paid to the Subcontractor by the Contractor
      or the Employer, at the percentage stated by the Contractor in his tender,
      or failing such statement at 7,5 percent (seven and one half percent), or,

(ii) if the Contractor in his Tender has added to the Provisional Sum concerned a sum in
      respect of charges and profits, a pro rata amount of such sum, added in the proportion
      that the amount paid to the Subcontractor by the Contractor or
      the Employer bears to the Provisional Sum.

(2) Prime Cost Sums

      Where a Prime Cost Sum is provided in the Schedule of Quantities to cover the cost price of certain goods,
      services or materials to be supplied under the Contract, the amount to be paid therefor to the Contractor shall
      be the actual price payable by him, in substitution for the Prime Cost Sum,
      together with any charge included by the Contractor in his Tender to allow for labour, profit, carriage,
      establishment and for other charges related to such goods, services or materials.

(3) Provisional/Prime Cost Sums and contingency allowance

      Expenditure in connection with Provisional and Prime Cost Sums and under the contingency allowance (if any)
      shall be solely at the discretion and on the instruction of the Engineer. Any parts of the amounts provided in
      the Schedule of Quantities which are not expended shall not be included in the Contract Price.

(4) Production of vouchers

The Contractor shall produce all invoices, vouchers and receipts in respect of payments made by him
in connection with Provisional or Prime Cost items when he requires payment for these items.

49.(1) Tendered rates and prices

Except as provided in this Clause or elsewhere in the Contract, the rates and prices stated in the
Tender shall be final and binding throughout the period of the Contract.

(2) Application of Contract Price Adjustment Factor

      The value of certificates issued in terms of Clause 52(1) (excluding the value of those special materials
      referred to in Sub-Clause (3)) shall be increased or decreased by applying a
      "Contract Price Adjustment Factor" calculated according to the formula and the conditions set out in
      the Contract Price Adjustment Schedule.

(3) Variation in cost of special materials

Price adjustments for variations in the costs of special materials specified in the Appendix shall be made in
the manner set out in the Contract Price Adjustment Schedule.

(4) Subsequent changes in legislation

      If at any time after 28 days before the closing date for tenders there occur changes to any Act of Parliament,
      Ordinance, Regulation or By-law of any local or other statutory authority which cause additional or reduced cost
      to the Contractor (other than in terms of Sub-Clauses (2) and (3)) arising from the execution of the Contract,
      such additional or reduced cost shall, after due consultation between the Employer and the Contractor,
      be determined by the Engineer and shall be added to or deducted from the Contract Price and the Engineer
      shall notify the Contractor accordingly, with a copy to the Employer.

50.(1) Adverse physical conditions and artificial obstructions

      If during the execution of the Works the Contractor shall encounter adverse physical conditions
      (other than weather conditions a. the Site or the direct consequences of those particular weather conditions)
      or artificial obstructions, which conditions or obstructions could not have been reasonably foreseen by
      an experienced contractor at the time ofsubmitting his tender, and the Contractor is of the opinion
      that additional work will be necessary which would not have been necessary if the particular physical conditions
      or artificial obstructions had not been encountered, he shall give notice to the Engineer in writing as soon as
      he becomes aware of the conditions aforesaid, stating

(a) the nature and extent of the physical conditions and artificial obstructions encountered, and

(b) the additional work which will be necessary by reason thereof.

(2) Further notices

      Should additional or more extensive adverse physical conditions or artificial obstructions within the meaning
      of Sub-Clause (1) be encountered by the Contractor, he shall give further notices thereof in terms of
      Sub-Clause (1).

(3) Contractor to carry out additional work

      Unless otherwise instructed by the Engineer, the Contractor shall carry out the additional work proposed in
      the notice or notices under Sub-Clauses (1) and (2) without limiting the right of the Engineer to order
      a suspension of work in terms of Clause 42 or a variation in terms of Clause 39.

(4) Contractors right to claim

      If the Contractor has duly given the notice referred to in either Sub-Clauses (1) or (2), he shall be entitled,
      in respect of any delay or additional Cost, to make a claim in accordance with Clause 51, provided that the
      cost of all work done by the Contractor prior to giving the notice or notices in terms of Sub-Clauses (1) and (2)
      shall be deemed to be covered by the rates and prices referred to in Clause 3(4).

51.(1) Claims procedure

      The following provisions shall apply to any claim by the Contractor in terms of the Contract for an extension
      of time in terms of Clause 45 for the completion of the Permanent Works, or (in terms of any Clause
      making reference to Clause 51) for additional payment or compensation:

(a) The Contractor shall, within 28 days after the circumstance, event, act or omission giving rise
      to such a claim has arisen or occurred, deliver to the Engineer a written claim, referring to this
      Clause and setting out

(i) the particulars of the circumstance, event, act or omission giving rise to the claim
      concerned,

(ii) the provisions of the Contract on which he relies in making the claim,
(iii) the length of the extension of time, if any, claimed and the basis of calculation thereof,
      and
(iv) the amount of money, if any, claimed and the basis of calculation thereof.

(b) If, by reason of the nature and circumstances of the claim, the Contractor cannot reasonably
      comply with all or any of the provisions of paragraph (a) within the said period of 28 days, he shall

(i) within the said period notify the Engineer in writing of his intention to make the claim and
      comply with such of the requirements of paragraph (a) as he reasonably can,
(ii) deliver to the Engineer in writing such additional information as the Engineer shall,
      in writing, reasonably require, and
(iii) comply as soon as is practicable with such of the requirements of paragraph (a) as have
      not been complied with.

(c) If the events or circumstances relating to the claim are of an ongoing nature, the Contractor shall,
      each month, deliver to the Engineer in writing updated particulars required in terms of paragraphs
      (a) and (b).

(2) Extended period for claims

      If, in respect of any claim, the Contractor did not comply with the provisions of Sub-Clause (1) because he
      was not and could not reasonably have been aware of the implications of the facts or circumstances
      concerned, the period of 28 days referred to in Sub-Clause (1) shall commence to run from the date when
      he should reasonably have become so aware.

(3) Records of facts and circumstances

In order that the extent and validity of claims in terms of this Clause may be properly assessed when they
are submitted, the following provisions shall apply:

(a) All facts and circumstances relating to the claims shall be investigated as and when they occur or
      arise. For this purpose the Contractor shall deliver to the Engineer records, in a form approved by
      the Engineer, of all the facts and circumstances which the Contractor considers relevant and
      wishes to rely upon in support of his claims, including details of all Constructional Plant, labour and
      materials relevant to each claim. Such records shall be delivered promptly after the occurrence
      of the event giving rise to the claim concerned.

(b) The Engineer may record such facts and circumstances, additional to those recorded by the
      Contractor, as he considers relevant and the Contractor shall, for this purpose, supply the Engineer
      with all the information which he may require.

(c) The Engineer and the Contractor shall, at the time of making the record in terms of paragraphs
      (a) and (b), set out in writing, signed by each of them and delivered to the other of them,
      their respective agreement or disagreement as to the correctness of the matters recorded.

(d) Each record of an agreed fact in terms of paragraph (c) shall in any dispute be prima facie evidence
      of the fact concerned.

(e) For the purpose of this Clause information arising from a technical investigation or
      analysis undertaken after the events giving rise to the claim have occurred shall not be regarded
      as facts or circumstances required to be recorded in terms of this Clause.

(f) The Employer, the Engineer and the Contractor shall not in any proceedings in accordance with
      Clause 61 be entitled to give or lead evidence of or rely on any fact or circumstance not recorded
      in terms of this Clause unless the other party to the dispute is not prejudiced by such
      non-recording of the facts.

(4) Contractors failure to comply

If, in respect of any claim to which this Clause refers, the Contractor shall fail to comply with the provisions
of Sub-Clause (1), as read with Sub-C1ause (2), he shall have no further right to make the claim concerned.

(5) Engineers ruling

      Unless otherwise provided in the Contract, the Engineer shall, within 56 days after the Contractor has
      complied with his obligations in terms of Sub-Clause (1) as read with Sub-Clause (2) and paragraphs (a),
      (b) and (c) of Sub-Clause (3), deliver to the Contractor and the Employer his written ruling on the
      claim (referring specifically to this Clause), and the amount, if any, thereof allowed by the Engineer shall
      be included to the credit of the Contractor in the next payment certificate;

      Provided that

(a) the said period of 56 days may be extended if so agreed between the Contractor and the Engineer,
      and

(b) if, before the Engineers ruling on the whole claim, any amount thereof shall have been established
      to his satisfaction, that amount shall be included to the credit of the Contractor in the next
      payment certificate.

(6) Engineers failure to rule

If the Engineer fails to give his ruling within the period referred to in Sub-Clause (5), he shall be deemed
to have given a ruling dismissing the claim.

52.(1) Monthly payments

      With regard to all amounts becoming due to the Contractor in respect of the matters set out in paragraphs
      (a), (b), (c), (d) and (e) below, he shall deliver to the Engineer a monthly statement for payment of all
      amounts he considers to be due to him (in such form and on such date as may be agreed or failing
      agreement as the Engineer may require) and the Engineer shall, by signed payment certificates issued to
      the Employer and the Contractor, certify the amount which he considers to be due to the Contractor,
      taking into account the following:

(a) the estimated value of the Permanent Works executed and calculated in terms of the Contract up
      to the date of the Contractors said statement;

(b) such amount as the Engineer may consider to be fair and reasonable for any Temporary Works
      or other special items for which separate amounts are provided in the Schedule of Quantities;
(c) any amounts additional to those referred to in this Sub-Clause which are due to the Contractor;
(d) adjustments under Clause 49;
(e) the value up to the percentage limit, if any, stated in the Appendix of materials referred to in
      Clause 32(1) not yet built into the Permanent Works;

      Provided that the Contractor has either produced to the satisfaction of the Engineer documentary
      evidence of ownership of such materials or has delivered to the Employer an indemnity in a form
      acceptable to the Employer against any claim to or in respect of such materials by reason of the
      Contractors sequestration or liquidation or of any defect in the Contractors title to the materials;
      and
(f) a deduction of the amount of all previous payments.

(2) Valuation of material brought onto Site

      The Contractor shall deliver with his statement pursuant to Sub-C1ause (1)(e) two copies of invoices
      or receipts in respect of the purchase and delivery of the materials for which the Contractor claims payment.
      The valuation of such materials shall be based on the purchase price and delivery cost reflected by the relevant
      invoices or receipts, exclusive of discounts to the Contractor and inclusive of General Sales Tax, or
      any tax imposed in replacement thereof, and duties payable on such materials by the Contractor;

      Provided that, if the materials have been produced by the Contractor himself or if in the opinion of the
      Engineer the valuation of such materials is not consistent with the relevant rates or prices set out in
      the Contract, the Engineer shall have the right to base the valuation and payment for such materials either
      on rates or prices consistent with the rates or prices set out in the Contract or on current market prices.

(3) Retention money

      Payment of the amounts referred to in paragraphs (a), (b), (c) and (d) of Sub-Clause (1) shall, save to
      the extent otherwise provided in Sub-Clause (6), be subject to a retention by the Employer of an
      amount (hereinafter called the "retention money"), being the percentage stated in the Appendix of the
      said amounts due to the Contractor, until the retention money reaches the "limit of retention money"
      stated in the Appendix.

(4) Employers obligation to pay

      The Engineer shall deliver to the Employer and the Contractor the payment certificate referred to in
      Sub-Clause (1) within 21 days after the receipt by the Engineer of the Contractors said statement, and
      the Employer shall pay the amount due to the Contractor within 35 days after receipt by the Engineer of
      the Contractors said statement.

(5) Time of payment of retention

      Save to the extent otherwise provided in Sub-Clause (6), when a Defects Liability Period is specified, one
      half of the retention money shall become due and shall be paid to the Contractor when the Engineer shall
      have issued a Certificate of Completion in terms of Clause 54(4) and the other half when the Engineer shall have
      certified payment thereof within 14 days after the expiration of the Defects Liability Period, extended
      if necessary in terms of Clauses 54(4) or 56(2);

Provided that

(a) if the Defects Liability Period is extended in terms of Clauses 54(4) or 56(2) or if at the expiration of
      the original Defects Liability Period there remains to be executed by the Contractor any works
      ordered during such period in terms of Clauses 30 and 56, the Employer shall be entitled to withhold
      payment until the completion of the work concerned of so much of the second half of the retention
      money as shall, in the opinion of the Engineer, represent the cost of such work;

(b) in the event of different Defects Liability Periods having become applicable to different parts of the
      Works pursuant to Clause 54, the expression "retention money" shall be deemed to mean such
      proportion of the total retention money as is applicable to each completed part of the Works; and

(c) if a Defects Liability Period is not specified, the whole of the retention money shall become due and
      shall be paid to the Contractor when the Contractor has become entitled, in terms of Clause 55(1),
      to receive a Final Approval Certificate.

(6) Guarantee in lieu of retention

(a) If, as stated in the Appendix, a Retention Money Guarantee is permitted and the Contractor elects
      to furnish it, the guarantee shall, at the cost of the Contractor, be executed by a Bank in a
      form approved by the Employer and shall be accepted in lieu of retention money until the aggregate
      of the retention monies which would, but for the guarantee, have been retained by the Employer is
      equal to the aggregate liability of the Bank under the guarantee, whereafter the remaining portion
      of the retention money shall be retained by the Employer as provided in this Clause.

(b) In the event of a Defects Liability Period being applicable to the Contract and of a guarantee having
      been accepted by the Employer, the guarantee shall be released and returned to the Bank by the
      Employer on the issue of the Certificate of completion against its replacement by a guarantee to be
      executed by a Bank in a form approved by the Employer for an amount equal to half the amount of
      the initial guarantee and valid for the Defects Liability Period.

(c) When the whole of the retention money to which a guarantee in terms of paragraph (a) or
      a replacement guarantee in terms of paragraph (b) applies, would, but for the guarantee, have
      become payable to the Contractor, the guarantee shall be released and returned to the Bank.

(7) Set-off and delayed payments

In respect of any amount payable to the Contractor in terms of the Contract,

(a) the Employer may deduct from such payment any amounts which he is entitled by law to set off
      against such payment and shall state in a notice accompanying the said payment the reasons for
      such deductions, and

(b) in the event of failure by the Employer to make the payment on its due date, he shall pay to the
      Contractor interest at the prime overdraft rate as certified by the Contractors bankers upon all
      overdue payments from the date on which the same should have been made, without limiting any
      other right which the Contractor may have by reason of such failure to make due payment.

(8) Correction of certificates

The Engineer may by any payment certificate make any correction or modification of any previous
payment certificate which shall have been issued by him.

(9) Contractors final statement

      The Contractor shall deliver to the Engineer a final statement showing the value of work done in respect
      of which a Certificate of Completion has been issued and shall supply such further information as the Engineer
      may reasonably require. Such final statement shall be delivered within the time stated in the Appendix after
      the date of completion of the Works as stated in the said Certificate. The Contractor shall not be entitled to
      any payment in respect of any matter which has not been included in such final statement save as provided
      for in Clauses 30, 54 and 56 in respect of work executed during the Defects Liability Period or Clause 61
      in respect of any dispute.

(10) Final Payment Certificate

      When all contract work has been completed, all final measurements agreed or, failing agreement, determined
      by the Engineer and all defects remedied, the Engineer shall, at the end of the Defects Liability Period (if any),
      issue to the Employer and the Contractor a Final Payment Certificate, the amount of which shall be paid to
      the Contractor within 28 days of the date of such certificate, after which no further payments shall be due to
      the Contractor (save in respect of matters in dispute, in terms of Clause 61, and not yet resolved)

53. Variations exceeding 15 per cent

If, at the time of the preparation of the payment certificate following the issue of the Certificate or Certificates
of Completion for the whole of the Works, it is found that the aggregate of

(a) all the variations made by the Engineer in terms of Clause 39,

(b) all additional payments allowed by the Engineer in terms of Clause 51, and

(c) the adjustment upon measurement of the estimated quantities set out in the Schedule of Quantities

      results in an increase or decrease in the Contract Price, determined before adjustment in terms of this Clause,
      greater than 15 per cent of the Tender Sum, excluding any allowance for contingencies therein and excluding
      from both the said Contract Price and the Tender Sum all payments or allowances for

(i) variations in price in terms of Clause 49,

(ii) Provisional Sums and Prime Cost items, and

(iii) Daywork,

      then the Preliminary and General allowances shall be adjusted by such sums (if any) as may be agreed
      between the Contractor and the Engineer or, failing agreement, determined by the Engineer having regard to
      all relevant factors affected by such increase or decrease, including any adjustments to the Preliminary and
      General allowances already made.