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BIDP Standard FORM & JBCC Minor WORKS – CLAUSE &

CONTENT Comparisons ARCPE SEMINAR

compiled BY FRED PHIRI Arch.BW 01160007

19th May 2018

BIDP Standard FORM & JBCC Minor WORKS – CLAUSE & CONTENT COMPARISONS

BIDP Standard Form (With Quantities. 1985 Edition 2006 Revision) JBCC Minor Works Agreement 5.1 © March 2014

Copyright Fred Phiri - May 2018 2


BIDP Standard Form (With Quantities. 1985 Edition 2006 Revision)

• Based on Detailed drawings and Bills of Quantities

• Has its Genesis in the RIBA / JCT Forms of Contract.

• Is the oldest Form of Contract in use in Private Sectorin Botswana today.

• Has Provision for Nominated Subcontractors

• Has to be administered by a Registered Architect asthe term “Architect” is a protected title under theterms of the Architects’ Registration Act of Botswana

• Has a Sectional Completion Clause

JBCC Minor Works Agreement 5.1 © March 2014

This agreement is intended for use where:

• The works are not complex

• The employer appoints: A principal agent to administerthe agreement; Other agents for specific aspects of theworks; Direct contractors for specialised work orinstallation not undertaken by the contractor

This agreement is suitable but not limited for use where:

• The contractor is a small to medium enterprise,

• The employer carries the major liabilities related to theworks,

• The employer is responsible for the primary insurancesrelated to the works,





This agreement is not suitable where the works requires:

• The appointment of nominated or selectedsubcontractors

• Contract price adjustment (escalation) provisions

and is not considered suitable where:

• the works is of a complex nature

• The anticipated construction period is longer than ninemonths

• The necessary contract documentation is not completeand available at tender stage

• Sectional completions are required




General Structure

Single Document comprising:

• Recitals,Names and Addresses of Employer, Contractor; Descriptionof the Works; Name of Architect; Contract Bills andDrawings; Name of QS and Attestations

• Conditions of contractContract Clauses

• The AppendixDefects Liability period; Insurances, Dates for possessionand completion; Liquidated and Ascertained Damages;period of delay for insurable risks; Retention Fund,Sureties


General Structure

Two Documents comprising:

• Contract Data,

Project name; Works and site descriptions; Employer’sName and Details; Principal and other Agents names anddetails; Applicable law; Contract documentation; System ofmeasurement, Schedule of contract drawings; Insurances;Security; Site information; Direct contractors; Dates forsite possession and practical completion; Penalties;Payments; Dispute resolution; Amendments; Tender detailsand contractor’s signature.

Conditions of contract

The Agreement and contracting Parties Details, thecontract sum and attestations


BIDP Standard FORM & JBCC Minor WORKS – CLAUSE & CONTENT COMPARISONSDefinitions

• BIDP Contract can be under Seal or Under Hand – Prescription Period different depending on howcontract is executed (6Years for “simple” contracts under hand or 12Years for contracts Executed asDeeds)

• JBCC MWA Contract is under hand with a 5-year Prescription Period from Issue of Final CompletionCertificate (Botswana Law has a 6Year Prescription Period)

• Liquidated and Ascertained Damages under BIDP SF – “A sum of money stated in a contract as thedamages payable in the event of a specified breach. The sum must be a genuine pre-estimate of the losslikely to be caused by the breach or a lesser sum” (Building Contract Dictionary)

• Penalty under MWA – “The stipulated amount per calendar day payable by the contractor to the employerwhere the date of the revised date for practical completion , whichever is later, has not been met.(MWA– Definitions)


BIDP Standard FORM & JBCC Minor WORKS – CLAUSE & CONTENT COMPARISONSPrescription (Limitation) Period


Contract Administration




Clause 1 – Contractor’s obligations

• Contractor has the obligation to carry out andcomplete the works as indicated on the contractdocumentation

• Contractor is obliged to give the architectwritten notice of any discrepancy in the contractdocumentation


Clause 11

• Contractor’s obligations are detailed under Clause11

• Clause 7.1 absolves the contractor for any designresponsibility save for his temporary works. TheClause makes it clear that the contractor is notresponsible for the coordination of designelements.




Clause 2 – Architect’s Instructions

• Instructions must be in writing

• Contractor must execute instructions within 7days, failure of which employer can engage othersto carry out the instruction

• Oral Instructions should be confirmed back inwriting within 7 days for them to have effect.

• Contractor may request written confirmationfrom architect regarding which clause empowersthe architect to issue the instruction

• If the contractor complies with an oralinstruction, then the architect will be obliged toconfirm this in writing prior to the issue of thefinal certificate


Clause 14 – Contract Instructions

• Contractor obliged to comply and Duly executecontract instructions

• Oral Instructions have no force or effect

• Contractor must execute instructions within 5working days, failure of which employer canengage others to carry out the instruction

• There is no obligation on a contractor to carry outa contract instruction for additional work afterpractical completion has been certified.

• There is no obligation on the contractor to carryout instructions for additional work issued afterthe date of practical completion



BIDP Standard Form (With Quantities. 1985 Edition 2006 Revision

Clause 3 – Contract Documents

• Custody of the contract document to be held bythe Architect or the QS

• Architect to provide contractor with onecertified copy of the Articles of Agreement, 3copies of contract drawings ; 1 priced and oneblank BoQ and 2 copies of the specification anddescriptive schedules

• Architect may request contractor to return alldrawings after final payment.

• Priced BoQ highly confidential and details shouldnot be divulged to people not involved in theproject


Clause 4 – Contract Documents

• After both parties have signed the Agreement,each party is issued with a copy. The signedoriginal will be kept by the Principal Agent

• The priced documents shall not be used as aspecification of materials or goods or used forany other purpose, published or disclosed withoutthe written consent of the parties




Clause 4 – Statutory Obligations

• Contractor must comply with all notices required by any act of Parliament, Statutory undertakers etc.


Clause 2 – Statutory Obligations

• The Parties shall comply with the law, regulations, bylaws etc.




Clause 5 – Levels and Setting out of the works

• The contractor is responsible for setting out ofthe works and is obliged to correct inaccuratesetting out at his own cost.


Clause 12 –

• Contractor is responsible for the accurate settingout of the works even is this has been checked byothers.




Clause 6 – Materials and Goods to conform todescription, testing and inspection

• These must conform to standards in contractbills

• Architect may request proof of conformity tostandards

• Clause gives architect the power to open upcovered work to verify compliance

• Architect may issue instructions for removal ofnon-compliant work or materials

• The architect may issue instructions for thedismissal of any person employed on the works


Clause 11.4

• Contractor obliged to provide everythingnecessary for the proper execution of the worksin compliance with the contract documents usingmaterials and workmanship of the quality andstandards specified and approved by the principalagent.




Clause 7 – Royalties and Patent Rights

• Royalties and Patent Rights are deemed to beincluded in the contract sum

• Contractor is not to be held liable forinfringement of patent right if he is complyingwith an architects instruction


There is no comparable Clause in MWA




Clause 8 – Foreman in charge

• Contractor is obliged to keep on the works acompetent English speaking foreman in charge.


Clause 11.2.2 –

• The contractor shall designate a competentperson to continuously administer and control theworks as the contractors representative.




Clause 9 – Access for Architect to Works

• The architect and his representatives must havereasonable access to works and contractor’sworkshops etc. (There is no mention of theemployer’s right to access the works and themeaning of architect’s representatives is rathervague)


Clause 11.2.9 –

• The contractor is obliged to allow the employerand agents, reasonable access to the works andworkshops.




Clause 10 – Clerk of Works

• The Employer shall be entitled to appoint a Clerkof Works whose duty is to act as inspector ofthe works under the direction of the architect


Clause 10.1.1 –

The Employer shall appoint agents to deal withspecific aspects of the works in terms of theagreement.




Clause 11 – Variations, Provisional and Prime Cost Sums

• Architect has the power to issue instructionsrequiring a variation – in writing

• Variations are described as the alteration,modification of the design, quality and quantity ofwork on the contract drawings (including addition,omission, substitution, alterations and removal of anywork from site

• Architect is obliged to issue instructions for theexpenditure of prime cost and provisional sums

• A prime cost amount – a sum of money included in acontract, usually by an item in the BoQ, to beexpended on materials or goods from suppliers orwork to be carried out by subcontractors nominatedby the employer. (Building Contract Dictionary)


Clause 14.1.2.–

The Principal agent has the power to issue contractinstructions regarding alterations to design, qualityand quantity of the work as long as such instructionsdo not substantially change the scope of the works

PA has power to instruct removal or re-execution ofthe works and to instruct removal or substitution ofmaterials or goods

PA has the power to instruct the expenditure ofemployer’s allowances or prime cost amounts

Prime cost amount is the amount included in thecontract amount for the delivered cost of materialsand goods obtained from a supplier as instructed byprincipal agent .(MWA – Definitions)




Clause 12 – Contract Bills

• Quality and quantity of work is deemed to begenerally prepared in accordance with principles ofthe latest edition of System of measuring builder’swork as issued by the Association of South AfricanQuantity Surveyors. (Note: It is advisable to statedthe edidtion of the standard method ofmeasurement being used rather than rely onreference to the “Latest Edition”).


Contract Data

• The system / method of measurement is filled out inthe contract data.




Clause 13 – Contract Bills

• The contract sum is not to be adjusted or altered .Any error whether arithmetical or not in thecontract sum shall be deemed to have been acceptedby the parties


MWA Definitions–

• The accepted tender amount inclusive of Tax is not subject to adjustment




Clause 14 – Materials and Goods – Unfixed or off site

• Materials delivered on or adjacent to the workscannot be removed unless through architectsinstruction

• Materials included and paid for in the interimpayment certificate become the property of theemployer

• Contractor is responsible for loss or damage ofthese materials subject to insurable perils underClauses 20(B) ; 20(C)


Clause 19.9 –

Materials and Goods supplied and certified shall become the property of the employer on payment thereof




Clause 15 – Practical Completion and Defect’s Liability

• Architect is obliged to forthwith issue the Certificate ofPractical completion when in “His opinion” works arepractically complete.

• Architect is obliged to provide contractor with the scheduleof defects within 14 days of the expiration of the defectsliability period (Normally runs for 6months from the date ofpractical completion)

• Architect may issue instructions for making good defectsthat may appear within the defects liability period

• The contractor is not obliged to make good at his own costany Damage by frost which may appear after practicalcompletion unless so instructed by architect

• The architect is obliged to issue the certificate of MakingGood Defects when all scheduled defects, shrinkages orother faults have been attended to by the contractor

• The Latent Defects liability period is 6 years in terms of theprescription act save for “fraudulent concealment”


Clauses 15.3 and 16

• The principal Agent is obliged to issue a comprehensive and conclusive practical completion list on receipt of timeous notice from the contractor.

• The PA must issue a certificate of practical completion after all items on the list for practical completion list have been dealt with. Alternatively PC can be certified with a “list for completion”.

• The Defects liability period is 90 Calendar days fro the certified date of practical completion

• A final list for completion is to be prepared prior to the end of the 90-day defects liability period.

• The certificate of final completion is to be issued after contractor attends to all scheduled defects on the list for final completion




• Practically completion entails the following

The defects liability period begins

The contractor’s liability for insurance ceases

The contractor’s Liability of LAD’s ends

Liability for damage caused by frost occurring thereafter ends

Half the retention is released to the contractor

Regular interim certificates cease to be issued

“It seems , on balance, that the architect is justified in issuing his certificate if he is reasonably satisfied that the works accord with the contract, not withstanding that there are very minor defects which can be remedied during the defects liability period”. (Building Contract Dictionary)


Clauses 15.3 and 16 contd/

• A certificate of final completion shall be conclusive as to the sufficiency of the works and that the contractor’s obligations shall be deemed to have been fulfilled other than for latent defects.

• Practical Completion: The stage of completion as certified by the principal agent where the works has (sic) been completed free of patent defects other than minor defects identified in the list for completion and can be used for the intended purpose”. (MWA Definitions)




Clause 16 – Sectional Completion

• The Agreement has a provision for the employer to takepossession of any part of the works (the relevant part).It is not enough to state the sequencing of the works inthe BoQ. Sectional completion supplements thatstipulate the different dates for possession andcompletion and the different amounts of liquidateddamages for each section should form part of theconditions of contract

• The one disadvantage with this part of the contract isthat it does not have a sectional completion supplementin which commencement and completion dates and therequiste liquidated and ascertained damages of thevarious sections can be included or reflected. It hasbeen found that in previous cas law that LAD’s may beunenforceable even if the sequencing is stated in theBOQ.


There is no comparable Clause in MWA. The contract isprefaced with an advisory note of the unsuitability of thecontract for “Sectional Completion contracts”




Clause 17 – Assignment and subletting

• Contractor is obliged to obtain employer’s writtenconsent to assign the contract and requires architect’swritten consent to sublet any portion of the works


Clause 3.5 –

• Neither party shall assign or cede right or obligationsunder the agreement without the prior written consentof the other party – which should not be withheldwithout good reason




Clause 18.1 – Injury to persons and property and EmployerIndemnity

• Contractor is liable for and shall indemnify (to indemnifyis to hold blameless) the employer against liability forpersonal injury or death of a person in execution of theworks

Clause 18.2 –

• Except for loss at risk of the employer (29(B) or 29 (C)the contractor is liable for and shall indemnify theemployer against expense or liability , loss or claim forinjury or damage to property , real or personal fordamage arising from the execution of the works


Clause 8.1.1 –

• The Employer is at risk for Death or bodily injury orillness to any person on arising from or out of theexecution of the works or occupation by the contractor.

Clause 8.1.2

• The Employer is at risk for physical loss or damage toany property other than the works.

Clause 8.1.3

• The Employer is at risk for costs of making good loss andrepairing damage




Clause 19(1) – Insurance against injury to persons and property

• The contractor and his subcontractor’s are obliged to maintain insurance to cover their liability for personal injuries or death from execution of the works

Clause 19(1)b

• Contractor obliged to maintain cover for injury or damage to property real or personal in execution of the works caused by contractor’s negligence, omission or default of the contractor

Clause 19(2)b –

• The contractor and his subcontractor’s are obliged to maintain insurance to cover expense, liability loss…to damage to any other property other than the works caused by vibration, weakening or removal of support, subsidence…


Clause 8.2 –

• The contractor shall be at risk for his employees, construction equipment and vehicles

Clause 8.1.5 –

• The employer to insure against the risk resulting from the removal or weakening or interference with the support of land and or property adjacent to or within the site




• ……to insure against loss or damage caused by fire,lightening, explosion, storm, tempest, flood, burstingover overflowing of water tanks, apparatus or pipes,earthquakes, aircraft and other aerial devices or articlesdropped therefrom, riot or civil commotion

i) Clause 20(A) New Work – Contractor Insures

ii) Clause 20(B) New Work – Employer Insures

iii) Clause 20(C) Alterations and Extensions – EmployerInsures


Clause 8.1.9 –

• Employer to insure against Force Majeure




Clause 21– Date of Possession, completion andpostponement

• The contractor shall be given possession on the dategiven in the appendix. Contractor has an obligation tobegin and execute the works with due diligence andregularity and complete them on or before the date ofcompletion stated therein.


Clause 11.2.6

On being given possession of the site, the contractor has anobligation to commence the works within 10 working daysand to proceed with due diligence, regularity, expeditionand skill and appropriate resources to bring the works topractical completion and final completion




Clause 22– Damages for non completion

• Contractor is liable for liquidated and ascertaineddamages for failure to complete with the contractperiod or the extended period. Architect must certifynon-completion for LADs to take effect. Employer maydeduct LADs from any monies due to the contractor


Clause 18.0 /18.1 – Penalty for non completion

• Principle Agent is obliged to notify Contractor of hisintention to deduct penalties from subsequent interimpayments if the contractor is in default. Penalty amountsshall be included in interim payment certificates




Clause 23 / 24– Extensions of Time (EOT)

• Contractor is obliged to submit a written notice of delayforthwith when it becomes reasonably clear that theworks will be delayed.

• The notice should cite the event or events causing thedelay.

• The architect “…shall as he is able to, estimate thelength of delay beyond the date and time aforesaid,make in writing a fair and reasonable extension of timefor completion of the works”

Clause 23– Grounds for Extensions of Time

• Force Majeure

• Exceptionally Inclement Weather.


Clause 17– Extensions of Time (EOT)

• Contractor shall report cause of delay and days claimedat the next site meeting.

• The Principal Agent shall determine the revisedcompletion date and adjustments in the contract value atinterval of no greater than 10 working day intervals

• Grounds for revising or not revising the date of practicalcompletion should be given if contractor disagrees withPA’s assessment.

Clause 17– Grounds for Extensions of Time

• Adverse Weather conditions

• Inability to obtain materials and goods

• Making good physical loss and damage to the works where thecontractor is not at risk




Clause 23 /24– Grounds for Extensions of Time (contd.)

• By reason of Loss or Damage From Perils specified under Clause 20

• Civil Commotion, workmen strikes or lockout

• AI’s to cover discrepancies in contract documents** variations; postponement of work**

• Late information **

• Nominated Subcontractors

• Artists and Tradesmen and others engaged by the employer doing work not forming part of the contract**

• Opening up of covered work for inspection**

• Architect’s instruction to postpone work**

** EoT will attract claims for Loss and Expense


Clause 17– Grounds for Extensions of Time (contd.)

• Exercise of Statutory power

• Force Majeure

• Contract instructions not arising from contractor’s default**

• Opening up of work which is found to be in accordance with thecontract**

• Late Issue of construction Information**

• Late supply of free issue materials where the employer isresponsible**

• Default by Principal agent or employer**

• Act or omission by Direct Subcontractor**

• Utilities connection not available”**

• Suspension of the works**

** Contract Value to be adjusted on awaited of EoT


BIDP Standard FORM & JBCC Minor WORKS – CLAUSE & CONTENT COMPARISONSDefinitions

• Force Majeure (JCT – Building Contracts Dictionary) Used with reference to a circumstancesindependent of the will of man, and which it is not in his power to control – e.g. fire caused by lightening)

• Force Majeure (MWA Definition) – An Exceptional event or circumstance that could not have reasonablybeen foreseen; is beyond the control of the parties; could not reasonably have been avoided or overcome.(Examples act of war, invasions and hostile acts of enemies; Insurrection, rebellion, revolution. Military orusurped power, war, terrorism; Civil commotion, disorder, riots, strike, lockout by persons other thancontractors employees or his subcontractors; sonic shock waves caused by aircraft, or other aerialdevices, and ionising or radio active contamination; explosive materials, except where attributable to thecontractor’s use of such technology; Natural catastrophes including earthquakes, floods, hurricanes, orvolcanic activity

• Exceptionally Inclement Weather: This is weather which is so cold, wet or windy

• Adverse Weather : This is weather which is so cold, wet or windy and covers heatwaves as well


BIDP Standard FORM & JBCC Minor WORKS – CLAUSE & CONTENT COMPARISONSGeneral Notes and Definitions related to Extensions of Time

• Act of Prevention : An Event which delays practical completion of a bulding contract, is caused by or onbehalf of the employer and to which the extension of Time Clause does not apply

• Time at Large: A situation where the contractual date for completion no longer applies, usually becausethe contract has been delayed by the employer for a reason which is not covered by an extension of timeclause

• Making Time of the Essence: Failure to comply or to keep a contractual obligation does not normallyentitle the aggrieved party to terminate the contract unlessthe time for performance of that obligationhas been “made of the essence”. If a party which is under obligation fails to do so by the required date,the other party can treat the contract as having been “repudiated”, which will release him from obligation.Time is generally not of the essence in building contracts as the remedy in Liquidated damages if thecontractor delays in the discharge of his obligations

• Neutral Events: Are events which have not been caused by either party and where the contract providesextension of time entitlement for the contractor and relief from liability for damages but no loss arisingout of the delay. Eaxmples of neutral events are incurable perils like fire and storm damage, work bystatutory undertakers, and exceptionally adverse weather conditions.

• Concurrent Delays: Concurrent (or parallel delays exist where 2 identifiable delays, both which affectcompletion occur at the same time. Both events must be on the critical path



• Culpable Delays: The contractor is said to be in culpable delay when the date for completion has passed,the contract has over-run and the contractor is, in the opinion of the contract administrator, not entitledto any extension of time so as to place the completion date in the future.

• Free Float (Slack): This is the amount of Time that a programmed activity may be delayed without itaffecting any other programmed activity.

• Total Float (Slack) : This is the amount of time that a programmed activity may be delayed withoutaffecting the contract completion date.






Clause 25– Determination by Employer

• Suspension of the works without reasonable cause

• Contractor’s failure to proceed with regularity anddiligence

• Contractors refusal to comply with architect’s writtennotice to remove defective work or improper materials

• Contractor’s failure to comply with Clause 17 (assignmentor subletting)

Architect must notify contractor of default by registeredpost or recorded delivery. Contractor has 14 days toremedy the default on receipt of notice. If the defaultcontinues after the 14Days period Employer has the rightto determine contractor’s employment under the contractwithin 10 Days of sending the 2nd Notice

• Bankruptcy (Forthwith determination)


Clause 21 – Grounds For Termination by Employer

• Contractor’s Failure to provide JBCC Guarantee forConstruction

• Contractor’s failure to proceed with the works within 10working Days of having taken possession of the site andto proceed with the works with due regularity andexpedition

• Contractor’s failure to timeously comply with contractInstructions.

• Employer has the right to terminate contractor’semployment under the contract 10Days after writtennotice of the default is sent to the contractor.

• Employer’s right to terminate cannot be exercisedwhere the employer is in material breach




Clause 26 – Grounds For Suspension /Termination byContractor

• Employer’s Failure to honour certificates within thestipulated period – Termination can be forth withafter 7-Days Notice

• Employer’s Interference or obstruction of anycertificate due to the contractor

• Suspension of works for a period stated in the appendixdue to force majeure; loss or damage from Clause 20risks; civil commotion; AI to cover discrepancy ordivergence in contract documentation; architect’s failureto issue necessary instructions, drawings, details orlevels etc. in due time; delay on the part of artists,tradesmen; opening up of work

• Employer’s Bankruptcy Termination is forthwith


Clause 21 – Grounds For Suspension /Termination byContractor

• Employer’s Failure to provide JBCC Guarantee forPayment

• Employer’s failure to give possession of the site

• Employer’s failure to pay certified amount

• Employers failure to appoint Principal Agent or otherAgents

• Employer’s interference with Principal Agentsindependent judgement

• Principal Agents failure to issue payment Certificate

• Employer’s failure to effect insurance




Clause 26 – Grounds For Suspension /Termination byContractor contd/

• The agreement is vague on what notices the contractorneeds to serve the employer for defaults listed underclause26(1) (b), (c)(i-vi)


Clause 21 – Grounds For Suspension /Termination byContractor contd./

• Contractor has option to give employer 5 working dayswritten notice of intention to suspend the works whereemployer and/or PA are in default. The works can besuspended until the default is remedied.

• Should contactor decide to terminate his employmentunder the agreement he shall give employer 5 workingdays written notice of intention to terminate hisemployment under the terms of the contract.




Clause 27 – Nominated Subcontractors

• These are appointed by the architect for the executionof specialised works covered by a sum of money includedin a contract, to be expended on work to be carried outby subcontractors nominated by the architect.Nominated subcontractor’s work under the directcontrol of the main contractor.

Clause 28 – Nominated Suppliers

• These are appointed by the architect for the executionof specialised works covered by a sum of money includedin a contract, to be expended on materials or goodsfrom suppliers nominated by the architect. Nominatedsuppliers work under the direct control of the maincontractor


Clause 13 – Direct Contractors

• This is an equivalent Clause though there is no obligationon the contractor to control their work although he isobliged to include them in his programme. Directcontractor work under the direct control of theemployer

Clause 10.1.14 – Free Issue Materials

• This is an equivalent clause but contractor has no controlon the delivery of these materials although he isexpected to programme this delivery to the works




Clause 29 – Artists and Tradesmen

• Contractor to permit artists and tradesmen directlyappointed by the employer access to the site

• No obligation on contractor to program the works

• Claim Expense and/or loss due to direct contractor’sdefault

• Payment is the responsibility of the employer outsidethe agreement

• No privity of contract between Contractor and Artists,tradesmen

• Privity of contract: A rule in law of contract whichmeans that only the actual parties to a contract canacquirerights and liabilities under it


Clause 13 – Direct Contractors

• Contractor to permit direct contractor’s to install worksas part of the works.

• Works to be programmed by contractor

• The direct Contractors are identified at Tender stageand their details form part of the information sent tobidders in the contract data at tender stage.

• Claim Expense and/or loss due to direct contractor’sdefault

• Payment of the Direct contractor is the responsibility ofthe employer outside the agreement

• No privity of contract between Contractor and Directcontractor




Clause 30 – Certificates and Payments

• To be paid within the period for honouring payments inthe Appendix

• To include payment for materials intended for inclusionin the works which are off site provided the criteria setout under clause 30 (2A) a-h are met

• Certificates to include a deduction for retention whichcan be administered through clauses 30(4A) or 30 (4B)

• The Retention is normally set at 10% to a limit of 5%


Clause 19 - Payments

• Principal Agent is obliged to regularly issue paymentcertificates by the due date stated in the Contract DataSupplement

• Clause 19.3.2 gives the option for materials off-site tobe incorporated in valuations subject to the submissionof a Guarantee for advance payment.

• The contractor has the option of selecting either tosubmit a JBCC Guarantee for Construction or to opt forRetention (Payment reduction) normally set at 8% to alimit of 4%




Clause 31 – Fluctuations

• This clause sets out the processes and procedures forassessing fluctuations

Clause 32 – Outbreak of Hostilities

• Contractor can terminate his employment under contractafter 28Days of the order for general mobilisation

Clause 33 – War Damage

• This clause sets out the processes and procedures to befollowed in respect to protection of the works etc.

Clause 34 Antiquities–

• The Clause stipulates that “all fossils, antiquities and otheritems of value found on the site..” become the property ofthe employer. This flies in the face of the Monuments andRelics Act (Cap 59.03)which gives the minister the power toorder suspension of the works as well as the power acquireownership on behalf of the state


There is no comparable Clause in MWA. The contract isprefaced with an advisory note of the unsuitability of thecontract for Fluctuations or contract price adjustments

There is no comparable Clause in MWA save reference tothe Force Majeure Description

There is no comparable Clause in MWA

Clause 12.3

• This Clause stipulates that the contractor shall work tothe extent where undocumented services, naturalfeatures, articles, of value or relics are uncovered onsite and that relics or articles found on site belong tothe employer – A contravention of Cap 59.03)




Clause 35 – Arbitration

• Disputes are to be referred to arbitration in accordancewith the BIA Act

• The Arbitrator shall be the person named in theappendix and if no name is stated, an appointee of theBIDP President

• Costs of Arbitration will be split by both parties unlessthe Arbitrator decides otherwise

• The Arbitrator’s award is final and binding


Clause 22 – Dispute Resolution

• The process of dispute adjudication and arbitration is clearly articulated under this clause




46

Clause 36 – Provision of Sureties

• The Provision of the Surety under the clause is optional.It this Clause is not deleted, the surety will normally beset at 10% of the contract sum and must be submittedwithin 14Days of tender acceptance


Clause 9 – Provision of Security

• The contractor may opt for the submission of theGuarantee for Construction to the employer oralternatively Payment reduction (retention)

• The employer is obliged to submit a Guarantee forpayment to the contractor

• Both securities must be submitted within 15Workingdays of award of tender.


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