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Volume II – General Conditions and Particular Conditions

TABLE OF CONTENTS

GENERAL CONDITIONS (GC) ............................................................................................. 4

1 General Provisions............................................................................................................. 4
1.1 Definitions ............................................................................................................... 4
1.2 Interpretation........................................................................................................... 6
1.3 Notices and other Communications......................................................................... 6
1.4 Law and Language ................................................................................................. 7
1.5 Changes in Legislation ............................................................................................ 7
1.6 Assignment and Sub-Contracts............................................................................... 8
1.7 Intellectual Property ................................................................................................ 8
1.8 Confidentiality ......................................................................................................... 9
1.9 Publication .............................................................................................................. 9
1.10 Anti-Corruption ........................................................................................................ 9
1.11 Relationship of Parties .......................................................................................... 10
1.12 Agreement Amendment ........................................................................................ 10
1.13 Severability ........................................................................................................... 10
1.14 Non-Waiver ........................................................................................................... 10
1.15 Priority of Documents............................................................................................ 11
1.16 Good Faith ............................................................................................................ 11
2 The Client ........................................................................................................................ 11
2.1 Information ............................................................................................................ 11
2.2 Decisions .............................................................................................................. 11
2.3 Assistance ............................................................................................................ 12
2.4 Client’s Financial Arrangements............................................................................ 12
2.5 Supply of Client’s Equipment and Facilities ........................................................... 12
2.6 Supply of Client’s Personnel ................................................................................. 12
2.7 Client’s Representative ......................................................................................... 13
2.8 Services of Others ................................................................................................ 13
3 The Consultant................................................................................................................. 13
3.1 Scope of Services ................................................................................................. 13

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3.2 Function and Purpose of Services ........................................................................ 13

3.3 Standard of Care................................................................................................... 13
3.4 Client’s Property.................................................................................................... 14
3.5 Consultant’s Personnel ......................................................................................... 14
3.6 Consultant’s Representative ................................................................................. 14
3.7 Changes in Consultant’s Personnel ...................................................................... 14
3.8 Safety and Security of Consultant’s Personnel...................................................... 15
3.9 Construction Administration .................................................................................. 15
4 Commencement and Completion ..................................................................................... 16
4.1 Agreement Effective.............................................................................................. 16
4.2 Commencement and Completion of Services ....................................................... 16
4.3 Programme ........................................................................................................... 16
4.4 Delays................................................................................................................... 16
4.5 Rate of Progress of Services................................................................................. 17
4.6 Exceptional Event ................................................................................................. 17
5 Variations to Services ...................................................................................................... 17
5.1 Variations .............................................................................................................. 17
5.2 Agreement of Variation Value and Impact ............................................................. 18
6 Suspension of Services and Termination of Agreement ................................................... 19
6.1 Suspension of Services......................................................................................... 19
6.2 Resumption of Suspended Services ..................................................................... 19
6.3 Effects of Suspension of the Services ................................................................... 20
6.4 Termination of Agreement..................................................................................... 20
6.5 Effects of Termination ........................................................................................... 21
6.6 Rights and Liabilities of the Parties ....................................................................... 22
7 Payment........................................................................................................................... 22
7.1 Payment to the Consultant .................................................................................... 22
7.2 Time for Payment.................................................................................................. 22
7.3 Currencies of Payment.......................................................................................... 23
7.4 Third-Party Charges on the Consultant ................................................................. 23
7.5 Disputed Invoices.................................................................................................. 24
7.6 Independent Audit ................................................................................................. 24
8 Liabilities .......................................................................................................................... 24

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8.1 Liability for Breach ................................................................................................ 24

8.2 Duration of Liability ............................................................................................... 25
8.3 Limit of Liability ..................................................................................................... 25
8.4 Exceptions ............................................................................................................ 25
9 Insurance ......................................................................................................................... 25
9.1 Insurances to be taken out by Consultant ............................................................. 25
10 Disputes and Arbitration ................................................................................................. 26
10.1 Amicable Dispute Resolution ................................................................................ 26
10.2 Adjudication .......................................................................................................... 26
10.3 Amicable Settlement ............................................................................................. 27
10.4 Arbitration ............................................................................................................. 27
10.5 Failure to Comply with Adjudicator’s Decision ....................................................... 28
PARTICULAR CONDITIONS (PC) ...................................................................................... 29
Part A – Contract Data ........................................................................................................ 29
Annexure – 1 to Part A – Contract Data .............................................................................. 34
Part B – Special Provisions ................................................................................................. 36
PC 1.1 Definitions ............................................................................................................... 36
PC 1.5 Changes in Legislation ............................................................................................ 36
PC 2.4 Client’s Financial Arrangements .............................................................................. 37
PC 2.7 Client’s Representative or the Engineer .................................................................. 38
PC 3 The Consultant........................................................................................................... 40
PC 4 Commencement and Completion ............................................................................... 40
PC 4.4 Delays ..................................................................................................................... 40
PC 6.5 Effects of Termination ............................................................................................. 42
PC 7.1 Payment to the Consultant ...................................................................................... 42
PC 7.2 Time for Payment .................................................................................................... 45
PC 9.1 Insurance to be taken out by the Consultant. .......................................................... 45
Contract Agreement ............................................................................................................ 47

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GENERAL CONDITIONS (GC)

1 General Provisions
1.1 Definitions
The following words and expressions shall have the meanings assigned to them
except where the context otherwise requires:
1.1.1 “Agreement” means the Contract Agreement entered into by both the Parties based
on the form annexed to the Particular Conditions, the other documents listed in the
Contract Data (Part A of Particular Conditions) and the further documents (if any)
which are listed in the Contract Agreement or in the Letter of Acceptance.
1.1.2 “Background Intellectual Property” means, in respect of each Party, the
Intellectual Property owned by or otherwise in the possession of that Party at the
Commencement Date.
1.1.3 “Client” means the Party named in the Contract Agreement and legal successors
to the Client and permitted assignees.
1.1.4 “Client’s Representative” means the person referred to in the Contract Data (Part
A of the Particular Conditions), or appointed from time to time by the Client, and
communicated by Notice to the Consultant to be its representative for the
administration of the Agreement.
1.1.5 “Commencement Date” means the date identified in the Contract Data (Part A of
the Particular Conditions); where no date is identified then the Commencement
Date shall be 14 days after the Effective Date.
1.1.6 “Confidential Information” means all information specifically identified by the
disclosing Party as confidential at the time of disclosure, or information that a
reasonable person would consider from the nature of the said information and
circumstances to be confidential, including without limitation confidential or
proprietary information, trade secrets, data, documents, communications, plans,
know-how, formulas, designs, calculations, test results, specimens, drawings,
studies, specifications, surveys, photographs, software, processes, programmes,
reports, maps, models, agreements, ideas, methods, discoveries, inventions,
patents, concepts, research, development, and business and financial information.
1.1.7 “Consultant” means the professional firm or individual named in the Contract
Agreement and legal successors to the Consultant and permitted assignees.
1.1.8 “Consultant’s Representative” means the person referred to in the Contract Data
(Part A of the Particular Conditions) or appointed from time to time by the
Consultant, and communicated by Notice to the Client to be its representative for
the administration of the Agreement.
1.1.9 “Country” means the country named in the Contract Data (Part A of the Particular
Conditions) or, where no country is mentioned, the country where the Project site,
or the main project site as the case may be, is located.
1.1.10 “day” means a calendar day.

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1.1.11 “Effective Date” means the date on which the Agreement comes into force and
effect pursuant to Clause 4.1 [Agreement Effective].
1.1.12 “Exceptional Costs” means the costs, not otherwise compensated under the
Agreement, arising out of any necessary work, cost, expense or delay incurred by
the Consultant which is additional to the Services (or Variations) and which is
necessarily and unavoidably performed under the Agreement and in each case
identified as such in the Agreement.
1.1.13 “Exceptional Event” means an event or circumstance which is (a) beyond a Party's
control; (b) which such Party could not reasonably have provided against before
entering into the Agreement; (c) which having arisen, such Party could not
reasonably have avoided or overcome; and (d) which is not substantially attributable
to the other Party. An Exceptional Event may include, but is not limited to, events or
circumstances of the kind listed below, subject to (a) to (d) above:
war, hostilities (whether war be declared or not), invasion, act of foreign
enemies;
rebellion, terrorism, revolution, insurrection, military or usurped power or civil
war;
riot, commotion, disorder, strike or lockout by persons other than the
Consultant’s personnel and other employees of the Consultant and
Consultant’s sub-consultants;
munitions of war, explosive materials, ionising radiation or contamination by
radioactivity except as may be attributable to the Consultant’s actions;
natural catastrophes such as earthquake, hurricane, typhoon or volcanic
activity.
1.1.14 “Foreground Intellectual Property” means all Intellectual Property created as a
result of the Services performed by the Consultant.
1.1.15 “Contract Agreement” means the document entitled Contract Agreement which
forms part of the Agreement.
1.1.16 “Intellectual Property” means all intellectual property rights including, without
limitation, any patents, patent application, trademarks, trade secrets, registered
designs, registered design application, copyrights, design rights, moral rights,
process, formula, specification, drawing, including rights in computer software and
databases howsoever arising in any part of the world.
1.1.17 “Local Currency” means the currency of the Country and “Foreign Currency”
means any other currency.
1.1.18 “Notice” means a written communication identified as a Notice and issued in
accordance with the provisions of Clause 1.3 [Notices and other Communications].
1.1.19 “Party” and “Parties” means the Client and/or the Consultant as the context
requires.
1.1.20 “Programme” shall have the meaning given to it in Clause 4.3 [Programme].

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1.1.21 “Project” means the project named in the Contract Data (Part A of the Particular
Conditions) for which the Services are to be provided.
1.1.22 “Services” means the services defined in the Contract Data (Part A of the Particular
Conditions) to be performed by the Consultant in accordance with the Agreement
which includes any Variations to the Services instructed or arising in accordance
with the Agreement.
1.1.23 “Time for Completion” means the time for completing the Services as stated in the
Contract Data (Part A of the Particular Conditions), or as may be amended in
accordance with the Agreement, calculated from the Commencement Date.
1.1.24 “Variation” or “Variation to the Services” means any change to the Services
instructed or approved as a Variation under Clause 5.1 [Variations].
1.1.25 “Variation Notice” means a written communication identified as a Variation Notice
and issued in accordance with the provisions of Clause 1.3 [Notices and other
Communications].
1.1.26 “Works Contract” means a contract for the performance of permanent and
temporary works (if any) to be carried out by a contractor appointed by the Client
for the achievement of the Project.
1.1.27 “year” means a calendar year.
1.2 Interpretation
1.2.1 Words indicating the singular include the plural, and vice versa where the context
requires.
1.2.2 Words indicating one gender include all genders.
1.2.3 Provisions including the word “agree”, “agreed” or "agreement” require the
agreement to be recorded in writing, and signed by both Parties.
1.2.4 “shall” means that the Party or person referred to has the obligation under the
Agreement to perform the duty referred to.
1.2.5 “may" means that the Party or person referred to has the choice of whether to act
or not in the matter referred to.
1.2.6 “written” or “in writing” means handwritten, type-written, printed or electronically
made and resulting in a permanent uneditable record.
1.2.7 any reference to “price”, “rates”, “costs”, “expenses", “damages”, and the like
shall be a reference to the value of such item net of any applicable taxes unless
specified otherwise.
1.3 Notices and other Communications
1.3.1 Wherever the Agreement provides for the giving or issuing of a Notice, a Variation
Notice or other form of communication including without limitation approvals,
consents, instructions, and decisions, then such Notice, Variation Notice or
communication shall be:
a. where it is a Notice or Variation Notice, identified as such with reference to

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the Clause or Sub-Clause under which it is issued;

b. where it is another form of communication, identified as such with reference

to the Clause or Sub-Clause under which it is issued where appropriate;

c. in writing and delivered by hand (against receipt), sent by mail or courier, or

transmitted by any form of agreed system of electronic transmission stated in
the Contract Data (Part A of the Particular Conditions); and

d. delivered, sent or transmitted to the address for the recipient’s

communications as stated in the Contract Data (Part A of the Particular
Conditions). However:

if the recipient gives Notice of another address, Notices and other forms
of communication shall thereafter be delivered accordingly; and
if the recipient has not stated otherwise when requesting an approval or
consent, it may be sent to the address from which the request was
issued.
Notices and other form of communications shall not be unreasonably withheld or
delayed.
1.4 Law and Language
1.4.1 The Agreement shall be governed by the law stated in the Contract Data (Part A of
the Particular Conditions) or, if no governing law is stated in the Particular
Conditions, by the law of the Country.
1.4.2 If any part of the Agreement is written in more than one language then the ruling
language shall be that stated in the Contract Data (Part A of the Particular
Conditions).
1.4.3 The language for all communications shall be the ruling language stated in the
Contract Data (Part A of the Particular Conditions) or where no language is stated
then all communications shall be in the language in which the Agreement (or most
of it) is written.
1.5 Changes in Legislation
1.5.1 If after the date of the Consultant’s offer/proposal in relation to the Agreement the
scope, extent, nature or type of Services is affected by any change to national (or
state) legislation, any statute, statutory instrument, order, regulation, bylaw, code or
other legislation having application to the Services then such change to the Services
shall be treated as a Variation to the Services under Clause 5.1 [Variations].
1.5.2 If after the date of the Consultant’s offer/proposal in relation to the Agreement any
change to national (or state) legislation, any statute, statutory instrument, order,
regulation, bylaw, code or other legislation in any country in which the services are
required by the Client, causes the Consultant to incur Exceptional Costs, then the
agreed remuneration shall be adjusted in accordance with Sub-Clause 7.1.2
[Payment to the Consultant], and the Time for Completion amended in accordance
with Clause 4.4 [Delays]. As soon as reasonably practicable the Consultant shall

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inform the Client by issue of a Notice of the occurrence of the Exceptional Costs.
Either Party may by a separate Notice to the other require that the provisions of the
Agreement be amended to comply with the change in legislation where applicable.
1.6 Assignment and Sub-Contracts
1.6.1 Neither the Client nor the Consultant shall at any time assign the benefit of the
Agreement without the prior written consent of the other. Such consent shall not be
unreasonably withheld or delayed.
1.6.2 Neither the Client nor the Consultant shall assign obligations under the Agreement
without the written consent of the other Party.
1.6.3 The Consultant shall not sub-contract performance of all or part of the Services
without the written consent of the Client. The consent of the Client shall not be
required where the appointment of a sub-consultant for the performance of part of
the Services is included in the Consultant’s offer/proposal, if any, as incorporated
into the Agreement, or is otherwise anticipated in any of the documents constituting
the Agreement.
1.6.4 The Client’s consent to any sub-contract arrangement shall not relieve the
Consultant of any of the Consultant’s obligations under the Agreement. The
Consultant shall remain responsible and liable to the Client for the acts, omissions
and defaults of the sub-consultant in relation to the Agreement as if they were acts,
omissions and defaults of the Consultant.
1.7 Intellectual Property
1.7.1 All Intellectual Property held in any medium, whether electronic or otherwise,
created by the Consultant during the performance of the Services (Foreground
Intellectual Property) shall be vested in the Consultant. The Consultant shall grant
to the Client a royalty-free worldwide licence to use and copy the Foreground
Intellectual Property for any purpose in connection with the Project.
1.7.2 All Background Intellectual Property shall remain the property of the original owner.
The Consultant hereby grants to the Client, or agrees to procure the grant to the
Client of an unrestricted royalty-free licence to use and copy the Consultant’s
Background Intellectual Property to the extent reasonably required to enable the
Client to make use of the Services or the Project. The Client hereby grants to the
Consultant an unrestricted royalty-free licence to use and copy the Client’s
Background Intellectual Property provided to the Consultant to the extent
reasonably required to enable the Consultant to provide the Services.
1.7.3 The Consultant shall ensure (except in respect of any of the Client’s Background
Intellectual Property) that the Foreground Intellectual Property and the Consultant’s
Background Intellectual Property, to the extent incorporated into the Services, will
not infringe any Intellectual Property or other rights of any third party.
1.7.4 The Consultant shall not be liable for the use by any person of the Consultant’s
Background Intellectual Property or the Consultant’s Foreground Intellectual
Property for any purpose other than the purpose for which it was originally intended.
1.7.5 In the event that the Client is in default of payment of any amounts due under the

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Agreement then the Consultant may upon seven (7) days’ Notice revoke any licence
granted therein.
1.8 Confidentiality
1.8.1 Except with the prior written consent of the other Party, neither Party shall disclose
or cause or permit their employees, professional advisers, agents or sub-
consultants to disclose to third parties any Confidential Information.
1.8.2 The restrictions on use and disclosure set forth in Sub-Clause 1.8.1 shall not apply
to any information:
a. which at the date of its disclosure is public knowledge or which subsequently
becomes public knowledge other than by any act or failure to act on the part
of the receiving Party or persons for whom the receiving Party has assumed
responsibility under the Agreement;

b. which the receiving Party can establish by written proof was already in its
possession at the time of disclosure by the disclosing Party and was not
acquired directly or indirectly from the disclosing Party;

c. which at any time after the Commencement Date has been acquired from any
third party who did not acquire such information directly or indirectly from the
disclosing Party or any of the disclosing Party’s employees or professional
advisers;

d. which by proof in writing has been independently developed by the receiving

Party without the use of Confidential Information; or

e. which is required to be disclosed by law or order of a court of competent

jurisdiction or government, department, agency or other public authority.

1.8.3 The obligations set forth in Sub-Clause 1.8.1 shall expire two (2) years after
completion of the Services or the termination of the Agreement (whichever is the
earlier) unless stated otherwise in the Contract Data (Part A of the Particular
Conditions).
1.9 Publication
1.9.1 Subject to Clause 1.8 [Confidentiality] and unless otherwise specified in the
Particular Conditions, the Consultant, either alone or jointly with others, may publish
material relating to the Services. Publication shall be subject to approval of the
Client if it is within two (2) years of completion of the Services or termination of the
Agreement (whichever is the earlier).
1.9.2 The Consultant may use material and information relating to the Services and the
Project for commercial tendering purposes.
1.10 Anti-Corruption
1.10.1 In the performance of their obligations under the Agreement, the Consultant and the
Client, their agents and employees shall comply with all applicable laws, rules,
regulations, and orders of any applicable jurisdiction, including without limitation

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those relating to corruption and bribery.

The Consultant hereby represents, warrants and covenants that:
a. it shall not participate, directly or indirectly in bribery, extortion, fraud,
deception, collusion, cartels, abuse of power, embezzlement, trading in
influence, money laundering, use of insider information, the possession of
illegally obtained information or any other criminal activity; and
b. it shall neither receive nor offer, pay or promise to pay either directly or
indirectly, anything of value to a “public official” (as defined below) in
connection with any business opportunities which are the subject of the
Agreement. Furthermore, the Consultant shall immediately give Notice to the
Client with full particulars in the event that the Consultant receives a request
from any public official requesting illicit payments.

1.10.2 A “public official” is:

a. any official or employee of any government agency or government-owned or
controlled enterprise;

b. any person performing a public function;

c. any official or employee of a public international organisation including without

limitation donor or funding agencies or the Client;

d. any candidate for political office; or

e. any political party or an official of a political party.

1.10.3 In conjunction with the requirements of this Clause 1.10 the Consultant shall at the
Client’s request demonstrate that it adheres to a documented code of conduct in
respect to the prevention of corruption and bribery.
1.11 Relationship of Parties
1.11.1 Nothing contained in the Agreement shall be construed as creating a partnership,
agency or joint venture between the Parties.
1.11.2 Where either Party consists of a joint venture or consortium then members of such
joint venture or consortium shall be jointly and severally liable under the Agreement.
1.12 Agreement Amendment
1.12.1 The Agreement can only be amended with the written agreement of the Parties.
1.13 Severability
1.13.1 If any term or provision under the Agreement is held to be illegal or unenforceable
in whole or in part then such term or provision shall be disregarded without affecting
the enforceability of the remainder of the Agreement. Where either Party cannot rely
on any term or provision, the Parties shall negotiate in good faith for an alternative
term or provision with similar contractual effect for both Parties.
1.14 Non-Waiver

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1.14.1 No failure or delay by either Party in exercising any of its rights under the Agreement
shall operate as a waiver of such rights. Any waiver given by either Party in
connection with the Agreement is binding only if it is served as a Notice and then
strictly in accordance with the terms of the Notice.
1.15 Priority of Documents
1.15.1 The documents forming the Agreement are to be taken as mutually explanatory of
one another. If there is a conflict between these documents then the documents
shall be interpreted and construed in accordance with the order of precedence of
documents given in the Contract Data (Part A of the Particular Conditions). If the
conflict cannot be so resolved then the Client shall issue an instruction or Variation
to the Services under Clause 5.1 [Variations] as the case may require, in order to
resolve the conflict.
1.16 Good Faith
1.16.1 In all dealings under the Agreement the Client and the Consultant shall act in good
faith and in a spirit of mutual trust.
2 The Client
2.1 Information
2.1.1 In order not to delay the Consultant in the performance of the Services, the Client
shall within a reasonable time and with due regard to the Programme, provide to
the Consultant, free of cost, all information, and any further information reasonably
requested by the Consultant, which may pertain to the Services and which the Client
is able to obtain.
2.1.2 The Client accepts responsibility for and acknowledges that the Consultant will rely
on the accuracy, sufficiency and consistency of all the information provided by the
Client or by others on behalf of the Client. The Consultant shall use reasonable
endeavours to review all significant information provided to it by the Client or by
others on behalf of the Client within a reasonable time of receipt. To the extent
achievable using the Standard of Care in Sub-Clause 3.3.1 [Standard of Care], the
Consultant shall review such information with a view to ensuring that such
information does not contain any manifest error, omission or ambiguity and shall
give Notice to the Client promptly of any adverse findings.
2.1.3 In the event of any error, omission, or ambiguity (for the avoidance of doubt,
including a manifest error, omission or ambiguity) in the information provided to the
Consultant then the Client shall rectify such matter by Notice and where necessary
shall issue a Variation to the Services in accordance with Clause 5.1 [Variations] as
the case may require.
2.2 Decisions
2.2.1 On all matters properly referred to the Client in writing by the Consultant, the Client
shall give its decision, approval, consent, instruction or Variation, as the case may
be, in writing within a reasonable time and with regard to the Programme so as not
to delay the Services.

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2.3 Assistance
2.3.1 In the Country and in respect of the Consultant, its personnel and dependants, as
well as sub-consultants, if any, as the case may be, the Client shall do all in its
power to assist in:
a. the provision of documents necessary for entry, residency, working, and exit;
b. providing unobstructed access wherever it is required for the Services;
c. import, export and customs clearance of personal effects and of goods
required for the Services;
d. their repatriation in emergencies;
e. the provision of the authority necessary for the Consultant to permit the import
of foreign currency by the Consultant for the Services and by its personnel for
their personal use and to permit the export of money earned in the
performance of the Services; and
f. providing access to other organisations for collection of information which is
to be obtained by the Consultant.
Sub-Clauses 2.3.1(a) and (c) to (e) shall not apply where the Country is a principal
place of business of the Consultant.
2.4 Client’s Financial Arrangements
2.4.1 The Client shall submit to the Consultant, within twenty-eight (28) days of receiving
any request from the Consultant, reasonable evidence that financial arrangements
have been made and are being maintained which will enable the Client to make
timely payments under the provision of the Agreement.
2.4.2 If the Client intends to make any material change to its financial arrangements, the
Client shall give Notice to the Consultant with detailed particulars. In the event that
the Consultant, acting reasonably, is not satisfied with the proposed change and/or
supporting particulars submitted by the Client, then the Consultant shall be entitled
to suspend the Services pursuant to Sub-Clause 6.1.2(c) [Suspension of Services].
2.5 Supply of Client’s Equipment and Facilities
2.5.1 The Client shall make the equipment and facilities described in the Contract Data
(Part A of the Particular Conditions) [Personnel, Equipment, Facilities and Services
of Others to be Provided by the Client] available to the Consultant for the purpose
of the Services, with due regard to the Programme and free of cost.
2.6 Supply of Client’s Personnel
2.6.1 In consultation with the Consultant, the Client shall at its own cost arrange for the
selection and provision of suitably qualified personnel in its employment to the
Consultant in accordance with the requirements, if any, in the Contract Data (Part
A of the Particular Conditions) [Personnel, Equipment, Facilities and Services of
Others to be Provided by the Client]. In connection with the provision of the Services
and subject to the requirements of the applicable law(s), such personnel shall take
instructions from the Consultant only.
2.6.2 The personnel to be supplied by the Client, and any future replacements that may

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be necessary, shall be subject to acceptance by the Consultant. Such acceptance

shall not be unreasonably withheld.
2.6.3 In the event that the Client cannot supply the Client’s personnel for which it is
responsible or the performance of the Client’s personnel supplied to the Consultant
is not, in the reasonable opinion of the Consultant, adequate to discharge the
services assigned to them, then the Consultant shall arrange for an alternative
supply of personnel at the Client’s cost and the Client shall issue a Variation to the
Services in accordance with Clause 5.1 [Variations].
2.7 Client’s Representative
2.7.1 The Client shall notify the Consultant of the extent of powers and authority delegated
to the Client’s Representative.
2.8 Services of Others
2.8.1 The Client shall arrange, at its own cost, for the provision of services from others as
described in the Contract Data (Part A of the Particular Conditions) [Personnel,
Equipment, Facilities and Services of Others to be Provided by the Client], and the
Consultant shall co-operate with the suppliers of such services but shall not be
responsible for them or their performance. Where the provision of services by others
is necessary for the proper performance of the Services then the Client shall ensure
that such provision of services by others is given in sufficient time so as to allow the
Consultant to proceed in accordance with the Programme.
2.8.2 Unless otherwise stated in the Contract Data (Part A of the Particular Conditions),
the responsibility for interface management between the Services and services
provided by others remains with the Client.
3 The Consultant
3.1 Scope of Services
3.1.1 The Consultant shall perform the Services as stated in the Contract Data (Part A of
the Particular Conditions).
3.1.2 The Consultant shall perform the Services in accordance with the Programme as
may be amended from time to time in accordance with the Agreement.
3.1.3 The Consultant declares that as at the date of signature of the Agreement there are
no circumstances or matters that may give rise to a conflict of interest in the
performance of its obligations under the Agreement. The Consultant shall inform
the Client immediately if it becomes aware of any such circumstances or matters. If
a conflict of interest arises then the Parties shall agree, in good faith, on measures
to manage such conflict.
3.2 Function and Purpose of Services
3.2.1 Where appropriate, the Client shall describe the function and purpose of the
Services and state the same explicitly in the Contract Data (Part A of the Particular
Conditions).
3.3 Standard of Care

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3.3.1 Notwithstanding any term or condition to the contrary in the Agreement or any
related document or any legal requirement of the Country or any other relevant
jurisdiction (including, for the avoidance of doubt, the jurisdiction of the place of
establishment of the Consultant), in the performance of the Services the Consultant
shall have no other responsibility than to exercise the reasonable skill, care and
diligence to be expected from a consultant experienced in the provision of such
services for projects of similar size, nature and complexity.
3.3.2 To the extent achievable using the standard of care in Sub-Clause 3.3.1, and
without extending the obligation of the Consultant beyond that required under Sub-
Clause 3.3.1, the Consultant shall perform the Services with a view to satisfying any
function and purpose that may be described in the Contract Data (Part A of the
Particular Conditions).
3.3.3 The Consultant shall comply with all regulations, statutes, ordinances and other
forms of standards, codes of practice and legislation applicable to the Services and
the Agreement.
3.4 Client’s Property
3.4.1 Anything supplied by or paid for by the Client for the use of the Consultant shall be
the property of the Client and, where practicable, shall be so marked. The
Consultant shall make reasonable endeavours to safeguard and protect such
property of the Client until completion of the Services and/or return of such property
to the Client.
3.5 Consultant’s Personnel
3.5.1 The key personnel who are proposed by the Consultant to work in the Country shall
be subject to acceptance by the Client with regard to their qualifications and
experience. Such acceptance by the Client shall not be unreasonably withheld.
Personnel, if any, included in the Consultant’s offer/proposal included as part of the
Agreement shall be deemed to be accepted by the Client on entering into the
Agreement.
3.6 Consultant’s Representative
3.6.1 The Consultant shall notify the Client of the extent of powers and authority delegated
to the Consultant’s Representative.
3.6.2 If required by the Client, the Consultant shall designate an individual to liaise with
the Client’s Representative in the Country.
3.7 Changes in Consultant’s Personnel
3.7.1 If it is necessary for any reason to replace any of the personnel provided by the
Consultant, the Consultant shall arrange for replacement by a person(s) of suitable
qualification and experience in the provision of the Services as soon as reasonably
possible.
3.7.2 The cost of such replacement shall be borne by the Consultant except where the
replacement is requested by the Client, and in such case:
a. the request by the Client shall be made by Notice stating the reasons for it;

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such reasons shall relate to the provision of the Services and shall be
reasonable and not vexatious; and

b. the Client shall bear the cost of replacement unless misconduct or inability to
perform satisfactorily in accordance with Sub-Clause 3.3.1 [Standard of Care]
is the reason for the replacement of the relevant personnel by the Consultant.

3.8 Safety and Security of Consultant’s Personnel

3.8.1 If in the reasonable opinion of the Consultant the health, safety or security of its
personnel whilst in the Country is compromised by an Exceptional Event then the
Consultant shall be entitled to suspend all or part of the Services in accordance with
Sub-Clause 6.1.2(b) [Suspension of Services] and remove such personnel from the
Country until such time as the Exceptional Event has ceased.
3.9 Construction Administration
3.9.1 This Clause only applies where stated in the Contract Data (Part A of the Particular
Conditions), whereby the Consultant is required to perform the defined function of
the engineer, employer’s representative, project manager or similar under a Works
Contract. Where such services are included in the scope of Services in the Contract
Data (Part A of the Particular Conditions) they shall be considered to be part of the
Services.
3.9.2 Where explicitly described in the Contract Data (Part A of the Particular Conditions),
the Consultant shall perform the role of the engineer, employer’s representative,
project manager or similar as laid down in the Works Contract. The Consultant shall
provide such construction administration services in accordance with the scope of
Services.
3.9.3 When acting as the engineer, employer’s representative, project manager or similar,
the Consultant shall have the authority to act on behalf of the Client to the extent
provided in the Works Contract. If the authority of the Consultant under the Works
Contract is subject to prior approval of the Client, then the Client warrants that such
restriction on the authority of the Consultant shall be stated in the Works Contract
or shall be made known in writing to the contractor under the Works Contract. If the
Consultant is authorised under the Works Contract to certify, determine or exercise
discretion in the discharge of its duties then the Consultant shall act fairly as go-
between the Client and the contractor, exercising independent professional
judgement and using reasonable skill, care and diligence.
3.9.4 The Consultant shall not be liable to the Client for the performance of the Works
Contract by the contractor. In the discharge of its duties under the Works Contract,
the Consultant shall only be liable to the Client if the Consultant commits a breach
of the Agreement. In so far as the applicable law permits the Client shall indemnify
the Consultant against any and all claims made by the contractor against the
Consultant arising out of or connected with the Works Contract.
3.9.5 The Consultant shall not be liable to the Client or the contractor for the means,
techniques, methods or sequencing of any aspect of the Works Contract or for the
safety or adequacy of any of the contractor’s operations.

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3.9.6 If an ambiguity or discrepancy is found between the Consultant’s obligations under

the Agreement and the Consultant’s duties under the Works Contract, the
Consultant shall give Notice to the Client indicating the effect of such ambiguity or
discrepancy. The Client shall rectify such ambiguity or discrepancy by instruction as
soon as reasonably practicable and where necessary shall issue a Variation to the
Services in accordance with Clause 5.1 [Variations].
4 Commencement and Completion
4.1 Agreement Effective
4.1.1 The Agreement shall be effective from the date of the latest signature necessary to
complete the formal Agreement (the “Effective Date”).
4.2 Commencement and Completion of Services
4.2.1 The Consultant shall commence the performance of the Services as soon as is
reasonably practicable after the Commencement Date. The Consultant shall
complete the whole of the Services within the Time for Completion.
4.3 Programme
4.3.1 Within fourteen (14) days of the Commencement Date the Consultant shall submit
its Programme which shall include as a minimum:
a. the order and timing in which the Consultant intends to carry out the Services
in order to complete the Services within the Time for Completion;
b. any key dates stipulated in the Contract Data (Part A of the Particular
Conditions) or elsewhere in the Agreement for the delivery of any part of the
Services to the Client;
c. the key dates when decisions, consents, approvals or information from the
Client or third parties is required to be given to the Consultant;
d. any other requirements stated in the Contract Data (Part A of the Particular
Conditions).
The Consultant shall keep the Programme under review and shall amend the same
as and when necessary to comply with the Agreement.
4.3.2 Unless the Client, within fourteen (14) days of receiving the Programme, gives
Notice to the Consultant stating the extent to which it does not comply with the
Agreement, the Consultant shall proceed in accordance with the Programme,
subject to its other obligations under the Agreement.
4.3.3 The Parties shall promptly give Notice to each other of any specific, actual or
probable future events or circumstances which may adversely affect or delay the
Services or lead to an increase in the cost of the Services.
4.4 Delays
4.4.1 The Consultant shall be entitled to an extension of the Time for Completion if and
to the extent that completion of the Services is or will be delayed by any of the
following causes:
a. a Variation to the Services;

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b. any delay, impediment or prevention caused by or attributable to the Client,

or the Client’s other consultants, contractors, or other third parties;
c. an Exceptional Event; or
d. any other event or circumstance giving an entitlement to extension of the Time
for Completion under the Agreement.
4.4.2 Any extension of the Time for Completion shall have due regard to the Programme
and any constraints therein.
4.4.3 Where any circumstance referred to in Sub-Clause 4.4.1 causes the Consultant to
incur Exceptional Costs, then the agreed remuneration shall be adjusted in
accordance with Sub-Clause 7.1.2 [Payment to the Consultant]. As soon as
reasonably practicable the Consultant shall inform the Client of the occurrence of
the Exceptional Costs by issue of a Notice.
4.5 Rate of Progress of Services
4.5.1 If, for any reason that does not entitle the Consultant to an extension of the Time
for Completion, the rate of progress of the Services is, in the reasonable opinion of
the Client, insufficient to ensure completion of the Services within the Time for
Completion, then the Client may give Notice to that effect to the Consultant. Upon
receipt of such Notice the Consultant shall revise the Programme and shall issue a
Notice to the Client describing the measures the Consultant intends to put in place
in order to complete the Services in accordance with the Time for Completion.
4.6 Exceptional Event
4.6.1 If a Party is prevented from performing any of its obligations under the Agreement
by, or due to, an Exceptional Event then it shall give a Notice to the other Party
providing a description of the Exceptional Event together with an assessment of its
effects on the Party’s ability to comply with its obligations under the Agreement. The
Notice shall be given within fourteen (14) days from when the Party becomes aware,
or should have become aware, of the event or circumstance constituting an
Exceptional Event.
The Party having given Notice, shall be excused from performance of such
obligations for so long as the effects of the Exceptional Event prevent such
performance.
4.6.2 Where an Exceptional Event gives rise to an unavoidable change in the scope of
Services then the Client shall issue a Variation to the Services in accordance with
Clause 5.1 [Variations]. Where an Exceptional Event gives rise to a delay in the
completion of the Services then the Consultant shall be entitled to an extension of
the Time for Completion in accordance with Clause 4.4 [Delays].
4.6.3 Notwithstanding any other provision of this Clause 4.6, the obligations of either
Party to make payments to the other Party under the Agreement shall not be
excused by an Exceptional Event.
5 Variations to Services
5.1 Variations

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5.1.1 A Variation to the Services may be initiated by the Client by issue of a Variation
Notice at any time prior to completion of the Services. The Client may request the
Consultant to submit a proposal in respect of a proposed Variation. If the proposal
is accepted by the Client, then the Variation shall be confirmed by the Client by
issue of a Variation Notice. Any such Variation shall not substantially change the
extent or nature of the Services.
5.1.2 A Variation to the Services may be issued in respect of any:
a. amendment to Sub-Clause 3.1 [Scope of Services] or to Sub-Clause 2.5
[Supply of Client’s Equipment and Facilities];

b. omission of part of the Services but only where such omitted services are no
longer required by the Client;

c. changes in the specified sequence or timing of the performance of the

Services;

d. changes in the method of implementation of the Services;

e. provision of the Agreement requiring the issue of a Variation; or

f. proposal submitted by the Consultant (at the Client’s request or otherwise)

and accepted in writing by the Client.

5.1.3 The Consultant shall give Notice to the Client as soon as reasonably practicable
where the Consultant considers that any instruction or direction from the Client or
any other circumstance constitutes a Variation to the Services. The Consultant shall
include in the Notice details of the estimated impact upon the Programme and cost
of the Services for such matters. Within fourteen (14) days of receipt of the Notice
the Client shall either issue a Variation Notice, or cancel the instruction or direction,
or state by issue of a further Notice why the Client considers the instruction, direction
or circumstance does not constitute a Variation to the Services. In such case the
Consultant shall comply with and be bound by such further Notice unless the
Consultant refers the matter as a dispute under Clause 10 [Disputes and Arbitration]
within seven (7) days of receipt of such further Notice.
5.1.4 Unless the Consultant promptly gives Notice to the Client (with supporting evidence)
that:
a. it does not possess the relevant skills or resources to carry out the Variation,
or
b. the Consultant considers that the Variation will substantially change the extent
or nature of the Services,
the Consultant shall be bound by each Variation. The Consultant shall not otherwise
make any changes to the Services.
5.2 Agreement of Variation Value and Impact
5.2.1 The Client and the Consultant shall agree the value of any Variation, or its method
of calculation, including its impact (if any) upon other parts of the Services, the

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Programme and the Time for Completion.

5.2.2 The value of any Variation shall be determined in accordance with or based upon
the rates and/or prices in Volume IV [Pricing Document]. Where the rates and/or
prices are not applicable to the Variation then new rates shall be agreed by the
Parties.
5.2.3 The value of the Variation and its impact on the Programme shall be agreed and
confirmed in writing by the Client to the Consultant. Pursuant to such agreement the
Client shall issue an instruction to the Consultant to commence work on the
Variation.
5.2.4 Where agreement under Sub-Clause 5.2.3 is not reached within fourteen (14) days
of receipt by the Consultant of the Variation Notice or it is not practicable to establish
and agree between the Parties all the effects of the Variation prior to the Consultant
commencing work on the Variation then the Client may by Notice instruct the
Consultant to commence work on the Variation and the Consultant shall comply with
such instruction. The Consultant shall be compensated on a time-spent basis at the
rates and prices stated in Volume IV [Pricing Document] or if no rates and prices
are stated then at reasonable rates and prices until such time as agreement is
reached on all the effects of the Variation.
6 Suspension of Services and Termination of Agreement
6.1 Suspension of Services
6.1.1 The Client may suspend all or part of the Services at its sole discretion and for any
reason by giving twenty-eight (28) days’ Notice to the Consultant.
6.1.2 The Consultant may suspend all or part of the Services in the following
circumstances:
a. When the Consultant has not received payment of an invoice or a part of an
invoice, as the case may be, by the due date for payment of such invoice and
the Client has not issued a valid Notice in accordance with Clause 7.5
[Disputed Invoices] stating the reasons for non-payment of the invoice or part
thereof, subject to the Consultant giving seven (7) days’ Notice to the Client.
b. Where an Exceptional Event arises, including that contemplated under Clause
3.8 [Safety and Security of Consultant’s Personnel]. Notice shall be given to
the Client as soon as reasonably practicable. The Consultant shall take
reasonable endeavours to avoid or minimise such suspension of all or part of
the Services.
6.2 Resumption of Suspended Services
6.2.1 When the Services have been suspended under Sub-Clause 6.1.1 [Suspension of
Services] the Consultant shall resume the Services or part thereof, as the case may
be, within twenty-eight (28) days of receipt of Notice from the Client instructing the
Consultant to resume the Services or part thereof.
6.2.2 Where the Services have been suspended under Sub-Clause 6.1.2 [Suspension of
Services] the Consultant shall resume the Services or part thereof, as the case may

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be, as soon as reasonably practicable after the matters giving rise to the suspension
have ceased.
6.3 Effects of Suspension of the Services
6.3.1 The Consultant shall be paid for Services performed in accordance with the
Agreement up to the date of suspension of the Services or part thereof, as the case
may be.
6.3.2 During the period of suspension, the Consultant shall not perform the Services or
part thereof as the case may be, but shall ensure, so far as is reasonably
practicable, the security, maintenance and custody of the Services so as to prevent
spoilage or loss.
6.3.3 If during the suspension and resumption of Services or part thereof the Consultant
incurs Exceptional Costs, then:
a. the agreed remuneration shall be adjusted in accordance with Sub-Clause
7.1.2 [Payment to the Consultant];
b. the Time for Completion shall be amended in accordance with Clause 4.4
[Delays] to reflect the effect of the suspension on the Programme.
c. as soon as reasonably practicable the Consultant shall inform the Client by
issue of a Notice of the occurrence of these Exceptional Costs.
6.3.4 The Consultant shall take reasonable measures to mitigate the effects of the
suspension of the Services or part thereof.
6.4 Termination of Agreement
6.4.1 Termination by the Client
a. If the Consultant without good reason is in breach of a material term or
condition of the Agreement, the Client may give Notice to the Consultant
outlining the breach and the remedy required under the Agreement. If the
Consultant has not proceeded to remedy the breach within twenty-eight (28)
days after the issue of the Notice then the Client may terminate the Agreement
upon giving fourteen (14) days’ Notice to the Consultant.
b. Notwithstanding the notice periods in Sub-Clause 6.4.1(a), if the Consultant
becomes bankrupt or insolvent, goes into liquidation, has a receiving or
administration order made against it, compounds with its creditors, or carries
on business under a receiver, trustee or manager for the benefit of its
creditors, or if any act is done or event occurs which (under applicable laws)
has a similar effect to any of these acts or events, the Client may in so far as
the applicable laws permit terminate the Agreement with immediate effect
upon service of an appropriate Notice.
c. Notwithstanding the notice periods in Sub-Clause 6.4.1(a), if the Consultant
is in breach of Clause 1.10 [Anti-Corruption], the Client may terminate the
Agreement with immediate effect upon service of an appropriate Notice.
d. At its sole discretion upon giving the Consultant fifty-six (56) days’ Notice

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provided always that the Client shall not be entitled to use this provision in
order to obtain the Services from others, or in order to perform the Services
by itself.
e. Without prejudice to Sub-Clause 6.1.1 [Suspension of Services], where an
Exceptional Event has led to a suspension of the Services for more than one
hundred and sixty-eight (168) days the Client may terminate the Agreement
upon giving fourteen (14) days’ Notice to the Consultant.
6.4.2 Termination by the Consultant
a. If the Services have been suspended under Sub-Clause 6.1.1 [Suspension of
Services] for more than one hundred and sixty-eight (168) days the Consultant
may terminate the Agreement upon giving fourteen (14) days’ Notice to the
Client.
b. If the Services have been suspended under Sub-Clause 6.1.2(a) [Suspension
of Services] for more than forty-two (42) days the Consultant may terminate
the Agreement upon giving fourteen (14) days’ Notice to the Client.
c. If the Client becomes bankrupt or insolvent, goes into liquidation, has a
receiving or administration order made against it, compounds with its
creditors, or carries on business under a receiver, trustee or manager for the
benefit of its creditors, or if any act is done or event occurs which (under
applicable laws) has a similar effect to any of these acts or events, the
Consultant may in so far as the applicable laws permit terminate the
Agreement with immediate effect upon service of an appropriate Notice.
d. If the Client is in breach of Clause 1.10 [Anti-Corruption] the Consultant may
terminate the Agreement with immediate effect upon service of an appropriate
Notice.
e. If the Services have been suspended under Sub-Clause 6.1.2(b) [Suspension
of Services] for more than one hundred and sixty-eight (168) days the
Consultant may terminate the Agreement upon giving fourteen (14) days'
Notice to the Client.
6.5 Effects of Termination
6.5.1 The Consultant shall be paid for Services performed in accordance with the
Agreement up to the date of termination of the Agreement.
6.5.2 If the Agreement is terminated in accordance with Sub-Clause 6.4.1(a) or (b) or (c)
[Termination of Agreement] the Client shall, without prejudice to any other rights the
Client may have under the Agreement, be entitled to:
a. take over from the Consultant all documents, information, calculations and
other deliverables, whether in electronic format or othenwise, pertaining to the
Services performed up to the date of termination, necessary to enable the
Client to complete the Services either by itself or with the assistance of
another consultant (all documents in electronic format shall be editable);
b. claim compensation for reasonable costs directly incurred as a consequence

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of the termination, including but not limited to additional costs incurred in

arranging for the Services to be completed by another consultant;
c. withhold payments due to the Consultant until all the costs incurred by the
Client under Sub-Clause 6.5.2(b) above have been established and all
documents, information, calculations and other dellverables necessary to
enable the Client to complete the Services have been received. The Client
shall act expeditiously and without delay in establishing its own costs under
Sub-Clause 6.5.2(b).
The Client shall take all reasonable steps to mitigate such costs. The Client's
entitlement under this Sub-Clause 6.5.2 shall be limited to those costs that are
reasonably foreseeable at the time of signature of the Agreement.
6.5.3 If the Agreement is terminated in accordance with Sub-Clause 6.4.1(d) or (e) or
Sub-Clause 6.4.2 [Termination of Agreement] and the Consultant incurs
Exceptional Costs, then, without prejudice to any other rights the Consultant may
have under the Agreement, the agreed remuneration shall be adjusted in
accordance with Sub-Clause 7.1.2 [Payment to the Consultant]. The Consultant
shall inform the Client as soon as reasonably practicable by issue of a Notice of the
occurrence of the Exceptional Costs.
6.5.4 Where the Agreement is terminated under Sub-Clause 6.4.1(d) or Sub-Clause
6.4.2(a) to (d) [Termination of Agreement] then the Consultant shall be entitled to
be paid the loss of profit that would otherwise have been earned on the Services
not performed due to the termination.
6.6 Rights and Liabilities of the Parties
6.6.1 Termination of the Agreement shall not prejudice or affect the accrued rights or
claims and liabilities of the Parties.
7 Payment
7.1 Payment to the Consultant
7.1.1 The Client shall pay the Consultant for the Services (including Variations to the
Services) in accordance with the details stated in Volume IV [Pricing Document].
7.1.2 Unless otherwise agreed in writing, the Client shall pay the Consultant in respect of
Exceptional Costs:
a. for the extra time spent by the Consultant’s personnel in the performance of
the Services at the rates and prices stated in Volume IV [Pricing Document].
Where the rates and prices are not applicable then new rates and prices shall
be agreed by the Parties. If agreement is not reached within fourteen (14)
days of the issue of the relevant Notice then reasonable rates and prices shall
be applied; and
b. the cost of all other expenses reasonably incurred by the Consultant.
7.1.3 The Client shall pay any other amounts that become due under the Agreement.
7.2 Time for Payment

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7.2.1 Amounts due to the Consultant shall be paid within twenty-eight (28) days of the
date of issue of the Consultant’s invoice unless otherwise stated in the Contract
Data (Part A of the Particular Conditions).
7.2.2 If the Consultant does not receive payment within the time stated in Sub-Clause
7.2.1 it shall be paid financing charges at the rate(s) stated in the Contract Data
(Part A of the Particular Conditions) compounded monthly on the amount overdue
and in its currency calculated from the due date for payment of the invoice to the
actual date payment is received from the Client. Such financing charges shall not
affect the rights of the Consultant stated in Sub-Clause 6.1.2(a) [Suspension of
Services] or Sub-Clause 6.4.2 [Termination of Agreement].
7.2.3 Without prejudice to Sub-Clause 6.5.2(c) [Effects of Termination] the Client shall not
withhold payment of any part of an invoice for any amount properly due to the
Consultant under the Agreement by reason of claims or alleged Claims against the
Consultant unless the amount to be withheld has been agreed with the Consultant
as due to the Client, or has been awarded by an adjudicator or an arbitrator to the
Client pursuant to a referral under Clause 10 [Disputes and Arbitration].
7.3 Currencies of Payment
7.3.1 The currencies applicable to the Agreement are those stated in the Contract Data
(Part A of the Particular Conditions).
7.3.2 If at the Effective Date of the Agreement or during the performance of the Services
the conditions in the Country (except where the Country is the principal place of
business of the Consultant) are such as may:
a. prevent or delay the transfer abroad of Local or Foreign Currency payments
received by the Consultant in the Country;
b. restrict the availability or use of Foreign Currency in the Country; or
c. impose taxes or differential rates of exchange for the transfer from abroad of
Foreign Currency into the Country by the Consultant for Local Currency
expenditure and subsequent re-transfer abroad of Foreign Currency or Local
Currency up to the same amount, such as to inhibit the Consultant in the
performance of the Services or to result in financial disadvantage to it, then
the Client agrees that such circumstances shall be deemed to justify the
application of Clause 4.6 [Exceptional Event] if alternative financial
arrangements are not made to the satisfaction of the Consultant.
7.4 Third-Party Charges on the Consultant
7.4.1 Except where specified in the Particular Conditions or the Contract Data (Part A of
the Particular Conditions) and except where the Country is the principal place of
business of the Consultant:
a. the Client shall whenever possible arrange that exemption is granted to the
Consultant and those of its personnel who are not normally resident in the
Country from any payments required by the government or authorised third
parties in the Country which arise from the Agreement in respect of:

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their remuneration;
their imported goods other than food and drink;
goods imported for the Services;
documents imported for the Services;
b. whenever the Client is unsuccessful in arranging such exemption, it shall
reimburse the Consultant for such payments properly made, provided that the
goods or documents imported for the Services when no longer required for
the purpose of the Services, and not the property of the Client:
shall not be disposed of in the Country without the Client’s approval;
shall not be exported without payment to the Client of any refund or
rebate recoverable and received from the government or authorised
third parties.
7.5 Disputed Invoices
7.5.1 Without prejudice and subject to Sub-Clause 7.2.3 [Time for Payment], if any item
or part of an item in an invoice submitted by the Consultant is contested by the
Client as not properly due under the Agreement, the Client shall, within seven (7)
days of the date of issue of the Consultant’s invoice, give a Notice of its intention to
withhold payment with reasons but shall not delay payment of the remainder of the
invoice. Sub-Clause 7.2.2 [Time for Payment] shall apply to all contested amounts
which are finally determined to have been payable to the Consultant.
7.6 Independent Audit
7.6.1 Except where the Agreement provides for lump sum payments the Consultant shall
maintain up-to-date records which clearly identify relevant time and expense and
shall make these available to the Client on reasonable request.
7.6.2 Except where the Agreement provides for lump sum payments, not later than one
year after the completion or termination of the Services, the Client may, by Notice
of not less than fourteen (14) days to the Consultant, require that an independent
reputable firm of professionally qualified accountants nominated by it audit any time
and expense records claimed by the Consultant. The audit shall be conducted by
attending during normal working hours at the office where the records are kept and
the Consultant shall afford all reasonable assistance to the auditors. Any such audit
shall be at the Client’s cost.
8 Liabilities
8.1 Liability for Breach
8.1.1 The Consultant shall be liable to the Client for any breach by the Consultant of any
provision of the Agreement.
8.1.2 The Client shall be liable to the Consultant for any breach by the Client of any
provision of the Agreement.
8.1.3 If either Party is liable to the other, damages shall be payable only on the following
terms:

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a. such damages shall be limited to the amount of reasonably foreseeable loss

and damage suffered as a direct result of such breach;
b. in any event, the amount of such damages shall be limited to the amount
stated in Sub-Clause 8.3.1 [Limit of Liability]; and
c. if either Party is considered to be liable jointly with third parties to the other
Party, the proportion of damages payable by that Party shall be limited to that
proportion of liability which is attributable to its breach.
8.2 Duration of Liability
8.2.1 Notwithstanding any term or condition to the contrary in the Agreement or any legal
requirement of the Country or any other relevant jurisdiction (including, for the
avoidance of doubt, the jurisdiction of the place of establishment of the Consultant),
neither the Client nor the Consultant shall be considered liable for any loss or
damage resulting from any occurrence unless a claim is formally made on one Party
by the other Party before the expiry of the relevant period stated in the Contract
Data (Part A of the Particular Conditions), such period to commence upon
completion of the Services or termination of the Agreement (whichever is earlier).
Each Party agrees to waive all claims against the other in so far as such claims are
not formally made in accordance with this Sub-Clause 8.2.1.
8.3 Limit of Liability
8.3.1 The maximum amount of damages payable by either Party to the other in respect
of any and all liability, including liability arising from negligence, under or in
connection with the Agreement shall not exceed the amount stated in the Contract
Data (Part A of the Particular Conditions). This limit is without prejudice to any
financing charges specified under Sub-Clause 7.2.2 [Time for Payment], and
without prejudice to Sub-Clause 8.4.1 [Exceptions].
8.3.2 Each Party agrees to waive all claims against the other in so far as the aggregate
of damages which might otherwise be payable exceeds the maximum amount
payable under Sub-Clause 8.3.1.
8.3.3 Without prejudice to the right the Consultant may have under Sub-Clause 6.5.4
[Effects of Termination], neither Party shall be liable in contract, tort, under any law
or in any statutory private right of action or otherwise, for any loss of revenue, loss
of profit, loss of production, loss of contracts, loss of use, loss of business, third-
party punitive damages or loss of business opportunity or for any indirect, special
or consequential loss or damage.
8.4 Exceptions
8.4.1 Sub-Clause 8.1.3 [Liability for Breach], Clause 8.2 [Duration of Liability], and Clause
8.3 [Limit of Liability] shall not apply to claims arising out of deliberate manifest and
reckless default, fraud, fraudulent misrepresentation or reckless misconduct by the
defaulting Party.
9 Insurance
9.1 Insurances to be taken out by Consultant

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9.1.1 The Consultant shall take out and maintain professional indemnity insurance and
public liability insurance in amounts sufficient to cover its liabilities under the
Agreement, provided always in each case that such insurance is available at
commercially reasonable rates and on terms (including normal exclusions)
commonly included in such insurances at the time the insurances were taken out or
renewed as the case may be. Such insurances shall be placed with insurers of
international repute and standing. In assessing a commercially reasonable rate the
Consultant’s own claims record shall be disregarded.
The Consultant shall ensure that the minimum amount of cover under the policies
is not less than the amount specified in the Contract Data (Part A of the Particular
Conditions).
The Consultant shall ensure that its professional indemnity insurance is maintained
for the period of liability stated in the Contract Data (Part A of the Particular
Conditions) in accordance with Sub-Clause 8.2.1 [Duration of Liability].
9.1.2 The Consultant shall take out and maintain workers’ compensation insurance or
employer’s liability insurance and any other insurances as may be required by the
applicable law for the duration of the Services.
9.1.3 When requested to do so by the Client, the Consultant shall produce brokers’ or
insurers’ certificates to show that the insurance cover required by this Clause 9.1 is
being maintained.
9.1.4 The Consultant shall notify the Client immediately should any of the insurance
required by this Clause 9.1 be cancelled by the insurers or underwriters.
10 Disputes and Arbitration
10.1 Amicable Dispute Resolution
10.1.1 If any dispute arises out of or in connection with the Agreement then senior
representatives of the Parties with authority to settle the dispute shall, within twenty-
eight (28) days of a written request from one Party to the other, meet in order to
attempt to resolve the dispute amicably.
10.1.2 If the dispute is not resolved within fifty-six (56) days of receipt of the written request,
then either Party may refer the dispute to adjudication in accordance with Clause
10.2 [Adjudication], even if the meeting referred to in Sub-Clause 10.1.1 has not
taken place.
10.2 Adjudication
10.2.1 Unless settled amicably, any dispute arising out of or in connection with the
Agreement may be referred by either Party to adjudication in accordance with the
Rules for Adjudication in the Particular Conditions. The adjudicator shall be agreed
between the Parties or failing agreement shall be appointed in accordance with the
said Rules for Adjudication.
10.2.2 The Parties shall bear their own costs arising out of the adjudication and the
adjudicator shall not be empowered to award costs to either Party. Without prejudice
to the above, the adjudicator may decide which Party shall bear the adjudicator’s

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fees and in what proportion.

10.2.3 If either Party is dissatisfied with the adjudicator’s decision:
a. the dissatisfied Party may give a notice of dissatisfaction to the other Party,
with a copy to the adjudicator;
b. this notice shall state that it is a “Notice of Dissatisfaction with the
Adjudicator’s Decision” and shall set out the matter in dispute and the
reason(s) for dissatisfaction; and
c. this notice shall be given within twenty-eight (28) days of receiving the
adjudicator’s decision.

10.2.4 If the adjudicator fails to give its decision within the period stated in the Rules for
Adjudication, then either Party may, within twenty-eight (28) days of this period
expiring, give a notice to the other Party in accordance with Sub-Clause 10.2.3, sub-
paragraphs (a) and (b), above.
10.2.5 Except as stated in Clause 10.5 [Failure to Comply with Adjudicator’s Decision],
neither Party shall be entitled to commence arbitration of a dispute unless a notice
in respect of that dispute has been given in accordance with Sub-Clause 10.2.8 or
10.2.4. If such a notice has been given, and neither Party commences arbitration of
the dispute within one hundred and eighty-two (182) days of giving or receiving the
notice, such notice shall be deemed to have lapsed and no longer be valid.
10.2.6 Whether a Notice of Dissatisfaction with the adjudicator’s decision has been issued
or not by either Party, any adjudicator’s decision shall become binding on both
Parties upon its release.
10.2.7 If the adjudicator has given its decision as to a matter in dispute to both Parties, and
no notice under Sub-Clause 10.2.3 has been given by either Party within twenty-
eight (28) days of receiving the adjudicator’s decision, then the decision shall
become final and binding on both Parties.
10.2.8 Adjudication may be commenced before or after completion of the Services. The
obligations of the Parties shall not be altered by reason of any adjudication being
conducted during the progress of the Services.
10.3 Amicable Settlement
10.3.1 Where a notice has been given under Sub-Clause 10.2.3 [Adjudication] or 10.2.4
[Adjudication], both Parties shall attempt to settle the dispute amicably before the
commencement of arbitration. However, unless both Parties agree otherwise,
arbitration may be commenced on or after the twenty-eighth (28th) day after the day
on which this notice was given, even if no attempt at amicable settlement has been
made.
10.4 Arbitration
10.4.1 Unless settled amicably, subject to Clause 10.2 [Adjudication] and Clause 10.5
[Failure to Comply with Adjudicator’s Decision], any dispute in respect of which the
adjudicator’s decision (if any) has not become final and binding shall be finally
settled by international arbitration. Unless otherwise agreed by both Parties:

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a. the dispute shall be finally settled under the Rules of Arbitration of the
International Chamber of Commerce;
b. the dispute shall be settled by one or three arbitrators appointed in
accordance with these Rules; and
c. the arbitration shall be conducted in the ruling language defined in the
Contract Data (Part A of the Particular Conditions).
10.4.2 The arbitrator(s) shall have full power to open up, review and revise any ruling or
decision of the Adjudicator.
10.4.3 In any award dealing with costs of the arbitration, the arbitrator(s) may take account
of the extent (if any) to which a Party failed to cooperate with the other Party in
appointing the adjudicator under Clause 10.2 [Adjudication].
10.4.4 Neither Party shall be limited in the proceedings before the arbitrator(s) to the
evidence or arguments previously put before the adjudicator to obtain its decision,
or to the reasons for dissatisfaction given in the Party’s notice under Sub-Clause
10.2 [Adjudication]. Any decision of the adjudicator shall be admissible in evidence
in the arbitration.
10.4.5 Arbitration may be commenced before or after completion of the Services. The
obligations of the Parties shall not be altered by reason of any arbitration being
conducted during the progress of the Services.
10.5 Failure to Comply with Adjudicator’s Decision
10.5.1 In the event that a Party fails to comply with any decision of the adjudicator, whether
binding or final and binding, then the other Party may, without prejudice to any other
rights it may have, refer the failure itself directly to arbitration under Clause 10.4
[Arbitration] and Clause 10.1 [Amicable Dispute Resolution], Clause 10.2
[Adjudication] and Clause 10.3 [Amicable Settlement] shall not apply to this
reference. The arbitral tribunal (constituted under Clause 10.4 [Arbitration]) shall
have the power, by way of summary or other expedited procedure, to order, whether
by an interim or provisional measure or an award (as may be appropriate under the
applicable law or otherwise), the enforcement of that decision.
10.5.2 In the case of a binding but not final decision of the adjudicator, such interim or
provisional measure or award shall be subject to the express reservation that the
rights of the Parties as to the merits of the dispute are reserved until they are
resolved by an award.
10.5.3 Any interim or provisional measure or award enforcing a decision of the adjudicator
which has not been complied with, whether such decision is binding or final and
binding, may also order or award damages or other relief.

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PARTICULAR CONDITIONS (PC)

Part A – Contract Data
These Contract Data shall provide specific information, and shall be read in conjunction, to
the Clause(s) and/or Sub-Clause(s) of the General Conditions and/or Special Provisions.

Serial Conditions of GC Sub-

Data
No. Contract Clause

1 Documents forming 1.1.1 and a. the Contract Agreement (which shall be

the Agreement and 1.15 based on the form annexed to the Particular
Priority of Documents Conditions);
b. the Letter of Acceptance;
c. the Letter of Tender (without Appendices);
d. the Addenda, Corrigendum and
clarifications;
e. the Particular Conditions (Part A – Contract
Data);
f. the Particular Conditions (Part B – Special
Provisions);
g. the General Conditions of Contract;
h. the Terms of Reference (ToR) (Volume III);
i. the Client’s Volumes I and Volume IV
[Pricing Document];
j. the Consultant’s priced Financial Bid
(Pricing Document) as accepted by the
Client and included in the Contract
Agreement;
k. the Consultant’s Proposal;
l. any other document(s) forming part of the
Contract Agreement.

2 Client’s 1.1.4 To be notified later

Representative or the
Engineer

3 Commencement Date 1.1.5 As mentioned in LOA / Notice to proceed

4 Consultant’s 1.1.8 To be notified later

Representative

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Serial Conditions of GC Sub-

Data
No. Contract Clause

5 Country 1.1.9 India

6 Project 1.1.21 Madhya Pradesh Metro Rail Project

7 Services/ Scope of 1.1.22, As described in Volume III - Terms of Reference

Services 3.1.1, (ToR).
3.2.1 and
3.3.2

8 Time for Completion 1.1.23 1825 Days

The Consultant shall complete the whole of the
Services, and each part of the Services (if any),
within the Time for Completion for the Services
or part of the Services (as the case may be).

9 Communication 1.3.1 (c) Any integrated information system, e.g. a

“Project Management and Information System
(PMIS)” etc., acceptable to the Client.

10 Address for 1.3.1 (d)

communications

10.1 The Client’s address: Managing Director,

Madhya Pradesh Metro Rail Corporation
Limited,
2nd Floor, Smart City Development Corporation
Limited Building,
Kalibadi Road, BHEL,

Sector A, Berkheda,
Bhopal – 462022, Madhya Pradesh, India
Phone No: 0755-2475603
Email: [email protected]
www.mpmetrorail.com

10.2 The Consultant’s To be Filled later

address:

11 Governing Law 1.4.1 Laws for the time being in force in India

12 Ruling language 1.4.2 English

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Serial Conditions of GC Sub-

Data
No. Contract Clause

13 Language for 1.4.3 English

communications

14 Publication restrictions 1.9.1 Publication of material shall not be permitted.

15 Supply of Client’s 2.5.1 NIL

Equipment and
Facilities

16 Supply of Client’s 2.6.1 NIL

Personnel

17 Services of Others 2.8.1 NIL

18 The Responsibility for 2.8.2 Responsibility for interface management for

Interface Management services of others, civil, electrical, mechanical
and systems contractors of the Project shall be
with “the Consultant”. However, the Client shall
provide reasonable assistance.

19 Construction 3.9 Construction Administration shall not apply.

Administration

20 Performance Security: New sub-

clause
added.

20.1 Amount 3.10 5% (Five Percent) of the accepted Contract

Amount /Lumpsum Price as stated in the Letter
of Acceptance

20.2 Form 3.10 The Performance Security shall be in the form

of a “Bank Guarantee” issued by a Scheduled
Bank in India (meaning a bank which is included
in the Second Schedule of Reserve Bank of
India Act, 1934, and includes Scheduled
Commercial Foreign Banks with an Indian
branch), excluding Cooperative Banks, payable
in Bhopal.
The Performance Security shall remain valid
and enforceable at least six (6) months longer
than the anticipated expiry date of period of
Liability.

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Serial Conditions of GC Sub-

Data
No. Contract Clause
Refer clause 7.5 of ITT for more details.

21 Programme 4.3.1 (b) Refer Annexure – 1 to Part A – Contract Data

of the Particular Conditions [Key Dates]

22 Any other documents 4.3.1 (d) At least the requirements stated in Annexure –
2 to ITT [Instructions to Tenderer] of Volume I

23 Delay Damages 4.7.1 Refer Annexure – 1 to Part A – Contract Data

of the Particular Conditions [Key Dates]

24 Maximum amount of 4.7.1 Ten percent (10%) of the Accepted Contract

delay damages Amount/Lumpsum Price.

25 Advance Payment 7.1.4 No advance payment shall be made.

26 Repayment 7.1.4 NA
amortisation rate of
advance payment

27 Rate of Retention 7.2.1 Not Applicable

28 Financial Charges 7.2.2 0% (Zero Percent)

29 Currency of Payment 7.3.1 Indian Rupees

30 Third Party Charges 7.4.1 Exemption is not applicable.

on Consultant

31 Period of Liability 8.2.1 1 Year

32 Limitation of Liability 8.3.1 100% of the Accepted Contract Amount/

Lumpsum Price.

33 Insurances 9.1.1

33.1 Professional AOA (any one accident) limit equal to 100% of

Indemnity Insurance the contract value of the Pricing Document in
respect of Consultancy with AOY (any one year)
limit of 2 incidents in a year. This PII policy shall
be valid for one year after the date of completion
of Duration of Liability under Sub-Clause 8.2.1.
Wherever the Consultant submits policy for
shorter period / annual renewable policy, the
same shall be renewed before its expiry date. In

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Serial Conditions of GC Sub-

Data
No. Contract Clause
such situation, the Performance Security shall
be retained till required validity period. The
Consultant’s submission of such shorter period
/ renewable policy shall be construed as their
irrevocable consent for retention of the
Performance Security.

33.2 Public Liability 100% of the Accepted Contract

Insurance Amount/Lumpsum Price valid for one year after
the date of completion of Duration of Liability
under Sub-Clause 8.2.1.

33.3 Other cover All the other insurances as per the Laws of the
Country.

34 Disputes and 10 Disputes and Arbitration shall be governed by

Arbitration the Arbitration and Conciliation Act 1996/2015
of the Country (as amended from time to time).

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Annexure – 1 to Part A – Contract Data

Key Dates
The Consultant shall prepare and submit their detailed Programme so as to achieve key dates
of various activities on time. The Consultant shall complete the Services in a phased manner
by fixing priorities to different parts of the Services as per the key dates (mile stones) indicated
below:

Key Dates
Time for
Completion Delay Damages
Key
from the Description of Stage/ Section payable due to failure
Dates
Commencement to complete
Date
KD 01 30 Days Detailed Method Statement 0.02% of accepted
contract price per week
of delay for the key date
KD 02 100 Days Compliance Report and Corrective 0.01% of accepted
Statements - 1 (as per Task-2, contract price per week
Section 5 of Volume III – Terms of of delay for the key date
Reference (ToR))
KD 03 190 Days Compliance Report and Corrective 0.01% of accepted
Statements - 2 (as per Task-2, contract price per week
Section 5 of Volume III – Terms of of delay for the key date
Reference (ToR))
KD 04 280 Days Compliance Report and Corrective 0.01% of accepted
Statements - 3 (as per Task-2, contract price per week
Section 5 of Volume III – Terms of of delay for the key date
Reference (ToR))
KD 05 365 Days Mid Term RAP Evaluation Report 0.02% of accepted
contract price per week
of delay for the key date
KD 06 370 Days Compliance Report and Corrective 0.01% of accepted
Statements-4 (as per Task-2, contract price per week
Section 5 of Volume III – Terms of of delay for the key date
Reference (ToR))
KD 07 560 Days Compliance Report and Corrective 0.01% of accepted
Statements-5 (as per Task-2, contract price per week
Section 5 of Volume III – Terms of of delay for the key date
Reference (ToR))
KD 08 735 Days Post RAP Evaluation Report 0.02% of accepted
contract price per week
of delay for the key date
KD 09 740 Days Compliance Report and Corrective 0.01% of accepted
Statements-6 (as per Task-2, contract price per week
Section 5 of Volume III – Terms of of delay for the key date

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Key Dates
Time for
Completion Delay Damages
Key
from the Description of Stage/ Section payable due to failure
Dates
Commencement to complete
Date
Reference (ToR))
KD 10 923 Days Compliance Report and Corrective 0.01% of accepted
Statements-7 (as per Task-2-Task 4 contract price per week
& Taks 6, Section 5 of Volume III – of delay for the key date
Terms of Reference (ToR))
KD 11 1105 Days Compliance Report and Corrective 0.01% of accepted
Statements-8 (as per Task-2-Task 4 contract price per week
& Taks 6, Section 5 of Volume III – of delay for the key date
Terms of Reference (ToR))
KD 12 1288 Days Compliance Report and Corrective 0.01% of accepted
Statements-9 (as per Task-2-Task 4 contract price per week
& Taks 6, Section 5 of Volume III – of delay for the key date
Terms of Reference (ToR))
KD 13 1440 Days Compliance Report and Corrective 0.01% of accepted
Statements-10 (as per Task-2-Task contract price per week
4 & Taks 6, Section 5 of Volume III – of delay for the key date
Terms of Reference (ToR))
KD 14 1440 Days End of Project Report 0.05% of accepted
contract price per week
of delay for the key date
KD 15 1645 Days Semi-Annual Monitoring Report No.1 0.05% of accepted
during O&M Phase contract price per week
of delay for the key date
KD 16 1825 Days Semi-Annual Monitoring Report No.2 0.05% of accepted
during O&M Phase contract price per week
of delay for the key date

Note:
1. Delay Damages levied shall not be refunded even if the other key dates or overall
completion date is adhered to.
2. The amount levied due to failure to complete within time of all the above Key Dates
shall be per week or part thereof as applicable.

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PARTICULAR CONDITIONS (PC)

Part B – Special Provisions
Preamble
Special Provisions are numbered with “PC Clause Number” and are to be read in conjunction
with the relevant Clause(s) and/or Sub-Clause(s) of General Conditions. For illustration only,
PC Clause Number “PC 3.1” shall be read in conjunction with Sub-Clause 3.1 of General
Conditions. An entire clause of General Conditions is not replaced unless specifically
mentioned in this Special Provisions against relevant Clause.

PC Clause
Special Provisions
Number

PC 1.1 Definitions

Replace entire Sub-Clauses 1.1.3, 1.1.4 and 1.1.27 with following:

1.1.3 “Client” or “Employer” means the Party named in the Contract
Agreement and legal successors to the Client and permitted
assignees.
1.1.4 “Client’s Representative” or “the Engineer” means the person
referred to in the Contract Data (Part A of the Particular Conditions),
or appointed from time to time by the Client, and communicated by
Notice to the Consultant to be its representative for the administration
of the Agreement.
1.1.27 “year” means a calendar year and “day” means a calendar day.

PC 1.5 Changes in Legislation

Replace entire Sub-Clauses 1.5 with following:

1.5 Changes in Legislation
1.5.1 If after the date of the Consultant’s offer/proposal in relation to the
Agreement the scope, extent, nature or type of Services is affected by
any change to national (or state) legislation, any statute, statutory
instrument, order, regulation, law, bylaw, code or other legislation
having application to the Services then such change to the Services
shall be treated as a Variation to the Services under Clause 5.1
[Variations].
1.5.2 If after the date of the Consultant’s offer/proposal in relation to the
Agreement any change to national (or state) legislation, any statute,
statutory instrument, order, regulation, law, bylaw, code or other
legislation in any country in which the services are required by the
Client, then only the Time for Completion shall be amended in
accordance with Clause 4.4 [Delays] and no Exceptional Costs or

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PC Clause
Special Provisions
Number
monetary claims whatsoever shall be paid or entertained on this
account; except for “Change in Taxes” as per Sub-Clause 1.5.3 below.
As soon as reasonably practicable the Consultant shall inform the Client
by issue of a Notice of the occurrence of the changes. Either Party may
by a separate Notice to the other require that the provisions of the
Agreement be amended to comply with the change in legislation where
applicable.
1.5.3 Change in Taxes
a. “Change in Taxes” means the occurrence or coming into force of
the following, at any time after the date of submission of the tender;
i. any new tax which is imposed on Composite Contracts
applicable on Metro Project.
ii. Change in the rate of GST on Composite Contracts applicable
on Metro Project as per GST Act.
b. The contract price shall be adjusted due to any of the above two
conditions. Adjustment in contract price will be applicable up to the
stipulated date of completion of the Services including the extended
period of completion or it is specifically mentioned that extension is
with adjustment for changes as stated above.
c. If the extension of contract period is on account of consultant’s fault,
no compensation shall be made towards upward revision towards
“Change in Taxes” (taking place during the said extended contract
period) as mentioned at (a) (i) & (ii) above. Any benefit on account
of downward revision towards “Change in Taxes” as mentioned at
(a) (i) & (ii) above, during the original contract period or extended
contract period shall be on Client’s account.

PC 1.9 Publication

Replace entire Sub-Clauses 1.9.1 with following:

1.9.1 The Consultant, either alone or jointly with others, shall not publish any
material relating to the Services, in any form; either written, verbal/ oral,
interview, etc. In case of extreme exigencies only, any publication shall
be subject to approval of the Client if it is within two (2) years of
completion of the Services or termination of the Agreement (whichever
is the earlier).

PC 2.4 Client’s Financial Arrangements

The entire Sub-Clause 2.4 is deleted.

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PC 2.7 Client’s Representative or the Engineer

Replace entire Sub-Clause 2.7 with following:

2.7 Client’s Representative or the Engineer
2.7.1 The Engineer
The Client may also appoint the Engineer, who is a firm or individual to
carry out certain duties. The Engineer may be named in the Contract
Data (Part A of Particular Conditions), or notified by the Client to the
Consultant from time to time. The Client shall notify the Consultant of
the delegated duties and authority of the Engineer.
2.7.2 Duties and Authority of the Engineer
2.7.2.1 Except as otherwise stated in these Conditions, whenever carrying out
duties or exercising authority, specified in or implied by the Contract,
the Engineer shall act as a skilled professional and shall be deemed to
act for the Client.
2.7.2.2 The Engineer shall have no authority to amend the Contract or, except
as otherwise stated in these Conditions, to relieve either Party of any
duty, obligation or responsibility under or in connection with the
Contract.
2.7.2.3 The Engineer may exercise the authority attributable to the Engineer as
specified in or necessarily to be implied from the Contract. The Engineer
shall obtain the consent of the Client before exercising a specified
authority under following:
a. agreeing or determining an extension of time and/or additional
cost,
b. instructing a Variation, except in an emergency situation as
determined by the Engineer, or
c. approving a proposal for Variation submitted by the Consultant.
Other than above, there shall be no requirement for the Engineer to
obtain the Client's consent before the Engineer exercises his/her
authority for any agreement or determination of any matter or claim. The
Client shall not impose further constraints for authority of the Engineer.
2.7.3.4 However, whenever the Engineer exercises a specified authority for
which the Client's consent is required, then (for the purposes of the
Contract) such consent shall be deemed to have been given.
2.7.3.5 Any acceptance, agreement, approval, check, certificate, comment,
consent, disapproval, examination, inspection, instruction, Notice, No-
objection, record(s) of meeting, permission, proposal, record, reply,
report, request, Review, test, valuation, or similar act (including the
absence of any such act) by the Engineer or any assistant shall not

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relieve the Consultant from any duty, obligation or responsibility the

Consultant has under or in connection with the Contract.
2.7.3 Agreement or Determination
2.7.3.1 When carrying out his/her duties under this Sub-Clause, the Engineer
shall act neutrally between the Parties and shall not be deemed to act
for the Client.
2.7.3.2 Whenever these Conditions provide that the Engineer shall proceed this
Sub-Clause to agree or determine any matter or claim;
a. the Engineer shall consult with both Parties jointly and/or
separately, in an endeavour to reach agreement.
b. The Engineer shall commence such consultation promptly to
reach agreement within particular time limit, as may be proposed
by the Engineer and agreed by both Parties. The Engineer shall
give a Notice of the agreement, which agreement shall be signed
by both Parties.
c. In case of no agreement, the Engineer shall notify both Parties
and shall immediately proceed for a fair determination, in
accordance with the Contract, taking due regard of all relevant
circumstances. The Engineer shall give the Notice of his/her
determination within 42 days or within such other time limit as
may be proposed by the Engineer and agreed by both the
Parties.
d. If the Engineer does not give the Notice of agreement or
determination within the relevant time limit then, the Engineer
shall be deemed to have given a determination rejecting a claim
or to be a dispute unresolved.
e. Each agreement or determination shall be binding on both the
Parties (and shall be complied with by the Engineer) unless and
until corrected within 7 days of finding the error or receiving a
notice of correction (within 14 days) from either Party, or in case
of a determination, it is revised under Clause 10.
f. If either Party is dissatisfied with a determination of the Engineer,
the dissatisfied Party shall notify the other Party for “Notice of
Dissatisfaction” (NOD), with a copy to the Engineer, within 28
days of the Engineer’s determination notice and thereafter,
either Party may proceed under Clause 10. If no NOD is given
by either Party within the period of 28 days, the determination of
the Engineer shall be deemed to have been accepted by both
the Parties and shall be final and binding on them.

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PC 3 The Consultant

Add following Sub-Clause 3.10:

3.10 Performance Security
3.10.1 The Performance Security shall be furnished to the Client within 21
(twenty-one) days of receipt of the Letter of Acceptance in the form
given in Annexure-4 of ITT.

PC 4 Commencement and Completion

Add following Sub-Clauses 4.7:

4.7 Delay Damages
4.7.1 If the Consultant fails to comply with Sub-Clause 4.2.1 and Sub-
Clause 1.1.24 [Time for Completion], the Client shall be entitled to
payment of Delay Damages by the Consultant for this default. Delay
Damages shall be the amount stated in the Contract Data (Part A of
the Particular Conditions), which shall be paid for every day which
shall elapse between the relevant Time for Completion and the
relevant date of completion of the Services or part of the Services (as
the case may be). The total amount due under this Sub-Clause shall
not exceed the maximum amount of Delay Damages (if any) stated in
the Contract Data (Part A of the Particular Conditions).
4.7.2 These Delay Damages shall be the only damages due from the
Consultant for the Consultant’s failure to comply with Sub-Clause 4.2.1
and Sub-Clause 1.1.24 [Time for Completion], other than in the event
of termination under Sub-Clause 6.4.1(a) or (b) or (c) [Termination of
Agreement] before completion of the Services. These Delay Damages
shall not relieve the Consultant from the obligation to complete the
Services, or from any other duties, obligations or responsibilities which
the Consultant may have under or in connection with the Agreement.
4.7.3 This Sub-Clause shall not limit the Consultant’s liability for Delay
Damages in any case of fraud, gross negligence, deliberate default or
reckless misconduct by the Consultant.

PC 4.4 Delays

Add following Sub-Clauses 4.4.4, 4.4.5, 4.4.6 and 4.4.7:

4.4.4 When determining each extension of the Time for Completion, the
Client shall review previous determinations and may increase, but
shall not decrease, the total extension of the Time for Completion.
4.4.5 If a delay caused by a matter which is the Client’s responsibility is
concurrent with a delay caused by a matter which is the Consultant’s
responsibility, the Consultant’s entitlement to extension of the Time for

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Completion shall be assessed in accordance with the rules and

procedures stated in the Special Provisions (if not stated, as
appropriate taking due regard of all relevant circumstances).
4.4.6 In order for the Client/ Client’s Representative to determine the amount
of an extension of the Time for Completion, no later than 28 days after
the Consultant gives the Notice required by Sub-Clause 4.4.1, the
Consultant shall submit a “Time Impact Analysis” for adjustment of the
Time for Completion. Each Time Impact Analysis shall define the
extent of adjustment and the basis thereof in a form acceptable to the
Client/ Client’s Representative/ the Engineer, and include;
(a) any delay, impediment or prevention caused by or attributable to
the Client, the Client’s Personnel, or the Client's other consultants,
contractors, or other third parties;
(b) factual events, cause and effect, and activities that materially
affect the critical path of the Services or part of the Services;
(c) identification of activities which will require change;
(d) an analysis of how float or other measures have been used to
minimise the additional time required;
(e) any appropriate additional supporting information
The Time Impact Analysis shall indicate the date(s) when any extra or
additional services/work or other special circumstances occurred, the
status of the services/work at that time, and the resultant impact on
the Time for Completion.
The Time Impact Analysis shall form an integral part of the relevant
application for any extension of Time for Completion pursuant to Sub-
Clause 4.4 [Delays].
If the Consultant fails to submit the Time Impact Analysis within the
time period stipulated, the Time for Completion shall not be extended,
no adjustment to the Contract Amount/Contract Price shall be made
and the Consultant shall have no entitlement.
4.4.7 The Consultant shall not be entitled to any extension of the Time for
Completion where the instructions or acts of the Client or the Client’s
Representative/ the Engineer are necessitated by or intended to cure
any default of or breach of Agreement by the Consultant, or where any
delay is due to;
(a) the failure of a sub-consultant, to commence or to carry out
services in due time,
(b) non-availability, or shortage of Consultant's Personnel,
(c) inclement weather conditions

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PC 5.2 Agreement of Variation Value and Impact

Replace entire Sub-Clause 5.2.2 with following:

The value of any Variation shall be determined:
a. where appropriate, at the rates and/or prices in the Agreement, subject
to the aspect of vitiation of tender with respect to variation in quantities.
The aspect of vitiation of tender with respect to variation in quantities shall
be checked and avoided. In case of vitiation of the tender (both for
increase as well as decrease of value of contract agreement), the vitiation
shall be on the Consultant’s account (payment shall be restricted to the
lowest calculated value of all valid offers), or
b. in the absence of appropriate rates and/or prices, the rates and/or prices
in the Agreement shall be used as the basis for valuation, or
c. at appropriate new rates and/or prices, as may be agreed or which the
Client considers appropriate.

PC 6.5 Effects of Termination

Replace entire Sub-Clauses 6.5.4 with following:

Where the Agreement is terminated under Sub-Clause 6.4.1(d) or Sub-Clause
6.4.2(a) to (d) [Termination of Agreement] then the Consultant shall not be
entitled to be paid the loss of profit that would otherwise have been earned on
the Services not performed due to the termination.

PC 7.1 Payment to the Consultant

Replace entire Sub-Clause 7.1.2 with following:

7.1.2 Unless otherwise agreed in writing, the Client shall pay the Consultant,
the Remuneration Part only in respect of Exceptional Costs. The
Remuneration Part shall be equivalent to seventy percent (70%) of the
man-month rate of respective personnel, as quoted and accepted by
the Client, with an escalation of five percent (5%) per year (or part
thereof), for the extra time spent by the Consultant’s personnel in the
performance of the Services as stated in Volume IV [Pricing Document].
Such remuneration shall be deemed to have been included with all
incidental charges for services/ materials/ works in all respect required
for performance of the Services and deliverables.
Where the rates and prices are not applicable then;
a. new rates and prices shall be agreed by the Parties. If agreement
is not reached within fourteen (14) days of the issue of the
relevant Notice then reasonable rates and prices shall be
applied; and
b. the cost of all other expenses reasonably incurred by the

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Consultant.
Add following Sub-Clauses 7.1.4, 7.1.5 and 7.1.6:
7.1.4 Advance Payment
If no amount of advance payment is stated in the Contract Data (Part
A of the Particular Conditions), this Sub-Clause shall not apply.
After receiving the Advance Payment Certificate, the Client shall make
an advance payment, as an interest-free loan for mobilisation. The
amount of the advance payment shall be as stated in the Contract
Data.
7.1.4.1 Advance Payment Guarantee
The Consultant shall obtain (at the Consultant’s cost) an Advance
Payment Guarantee in amounts and currencies equal to the advance
payment, and shall submit it to the Client with a copy to the Client’s
Representative/ the Engineer. This guarantee shall be issued by an
entity and from within a country (or other jurisdiction) to which the
Client gives consent, and shall be based on the sample form included
in the tender documents or on another form agreed by the Client (but
such consent and/or agreement shall not relieve the Consultant from
any obligation under this Sub-Clause).
The Consultant shall ensure that the Advance Payment Guarantee is
valid and enforceable until the advance payment has been repaid.
Once fifty percent (50%) of the advance(s) has been recovered, the
Consultant shall have a one-time option to reduce the equivalent
amount of the Advance Payment Guarantee.
If the terms of the Advance Payment Guarantee specify its expiry date,
and the advance payment has not been repaid by the date 28 days
before the expiry date:
(a) the Consultant shall extend the validity of this guarantee until the
advance payment has been repaid;
(b) the Consultant shall immediately submit evidence of this
extension to the Client, with a copy to the Client’s Representative/
the Engineer; and
(c) if the Client does not receive this evidence 7 days before the
expiry date of this guarantee, the Client shall be entitled to claim
under the guarantee the amount of advance payment which has
not been repaid.
When submitting the Advance Payment Guarantee, the Consultant
shall include an application (in the form of a Statement) for the
advance payment.
7.1.4.2 Advance Payment Certificate

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The Client’s Representative/ the Engineer shall issue an Advance

Payment Certificate for the advance payment within 14 days after:
(a) the Client has received both the Performance Security and the
Advance Payment Guarantee, in the form and issued by an entity
in accordance with Sub-Clause 3.10 [Performance Security] and
Sub-Clause 7.1.4.1 [Advance Payment Guarantee] respectively;
and
(b) the Client’s Representative/ the Engineer has received a copy of
the Consultant's application for the advance payment under Sub-
Clause 7.1.4.1 [Advance Payment Guarantee].
7.1.4.3 Repayment of Advance Payment
The advance payment shall be repaid through percentage deductions
from interim payments. Unless other percentages are stated in the
Contract Data (Part A of the Particular Conditions):
(a) deductions shall commence in the first interim payment;
(b) deductions shall be made at the amortisation rate of one quarter
(25%) of the amount of each Interim Payment (excluding the
advance payment and deductions and release of retention
moneys), until such time as the advance payment has been
repaid. However, the recovery of mobilisation and/ or any other
advances will be completed before eighty five percent (85%) of
the Accepted Contract amount/Lumpsum Price has been paid or
within the original Time for Completion, whichever is earlier.
If the advance payment has not been repaid before the issue of the
completion of the Services, or before termination (as the case may
be), the whole of the balance then outstanding shall immediately
become due and payable by the Consultant to the Client.
7.1.5 Compliance for GST and other taxes
7.1.5.1 GST shall be paid extra as applicable.
7.1.5.2 The Consultant shall ensure full compliance with tax laws of India with
regard to this Agreement and shall be solely responsible for the same.
The Consultant shall submit copies of acknowledgements evidencing
filing of returns every year and shall keep the Client fully indemnified
against liability of tax, interest, penalty etc., of the Consultant’s in
respect thereof, which may arise. The Consultant shall maintain
complete records in respect of payments made for taxes, duties octroi
and other levies payable to various authorities and shall advise the
Client of the complete details of such payments every month, which
shall be enclosed with the Monthly Progress Report. These records
shall remain open for inspection by the Client or the Client’s
Representative/ the Engineer at any time and shall be made available

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to them as and when required.

7.1.5.3 The Consultant shall provide valid registration certificates required
under the GST Act and rules made there under. Until such certificate
is submitted and accepted, no payment, including release of any
advance payment, shall be made by the Client or the Client’s
Representative/ the Engineer to the Consultant.
7.1.5.4 If the percentage of GST is changed, it shall be adjusted after
notification.
7.1.6 Release of Retention: Deduction of Retention money is not
applicable for this Contract.

PC 7.2 Time for Payment

Replace entire Clause 7.2.1 with following:

Amounts due to the Consultant shall be paid within thirty-five (35) days of the
delivery of the Consultant’s invoice unless otherwise stated in the Contract
Data (Part A of the Particular Conditions), after deducting retention at the rate
stated in the Contract Data (Part A of Particular Conditions) and if any amount
to be withheld under Sub-Clause 7.2.3 and Sub-Clause 7.5 [Disputed Invoices].
The Client shall not be bound by any sum previously considered by him to be
due to the Consultant.
The Client may withhold payments until he receives the performance security
under Sub-Clause 3.10 (if any).

PC 9.1 Insurance to be taken out by the Consultant.

Replace the first paragraph of Sub-Clause 9.1.1 with following:

The Consultant shall take out and maintain Professional Indemnity Insurance
and public liability insurance in amounts sufficient to cover its liabilities under
the Agreement, provided always in each case that such insurance is available
at commercially reasonable rates and on terms (including normal exclusions)
commonly included in such insurances at the time the insurances were taken
out or renewed as the case may be. Such insurances shall be placed with
insurers duly approved by Insurance Regulatory and Development Authority
(IRDA) of India. In assessing a commercially reasonable rate the Consultant's
own claims record shall be disregarded.

PC 10 Disputes and Arbitration

Replace entire Clause 10 with following:

Disputes and Arbitration shall be governed by the Arbitration and Conciliation
Act 1996/2015 of the Country (as amended from time to time).

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Contract Agreement

This Contract Agreement (hereinafter called the “Contract”) is made at Bhopal and/or Indore
on ... .... day of ... ...... ... .... ... by and between Madhya Pradesh Metro Rail Corporation
Limited, a company organised and existing under the laws of India, vide Corporate
Identification Number: U75100MP2015SGC034434 and having its office located at 2nd Floor,
Smart City Development Corporation Limited Building, Kalibadi Road, BHEL, Sector – A,
Berkheda, Bhopal – 462022, Madhya Pradesh, represented by Mr……………………..of the
Company, by virtue of his designation and on authorization by Mr………………………..of the
Company (hereinafter referred to as the “MPMRCL” or the “Client”, as the case may be,
which expression shall unless excluded by or repugnant to the context or meaning thereof be
deemed to include its successors and permitted assigns) of the one part,
and
M/s …………………………………………., a [proprietorship firm/ partnership firm/ company/
corporation/ non-profit organisation] organised and existing under the laws of India, vide
Corporate Identification Number: …………………………….. and having its principle place of
business at …………………………………………………, represented by
………………………………………….. authorised to sign and bind the [proprietorship firm/
partnership firm/ company/ corporation/ non-profit organisation], under [sole proprietor/
authorised partner/ the Power of Attorney and the Board Resolution] (hereinafter referred to
as the “Consultant” which term or expression unless excluded by or repugnant to the context
or meaning thereof, shall be deemed to include its successors, executors and permitted
assigns) of the other part.

In this Contract Agreement, as the context may require, both the Client and the Consultant
shall hereinafter be collectively referred to as “Parties” and individually as “Party”.

WHEREAS the Client is desirous of executing the Project, and as part of it, the Client intends
to engage a Consultant to provide the Services, and

WHEREAS the Consultant has declared that the Consultant has valuable and specialised
knowledge and expertise in “……………………………………………..” and submitted a Tender
for providing and completion of “……………………………………………….”, and remedying
any defects in the Services (as defined in the Contract) and agrees to undertake performance
of the Services under the terms and conditions set forth in this Contract.

Now THEREFORE the Parties hereby agree as follows:

Clause 1 Words and Expression

In this Contract all the words and expressions shall have the same meanings as
are respectively assigned to them in the conditions of Contract hereinafter referred
to.
Clause 2 The Contract Documents
The following documents as listed below shall be deemed to form and be read and
construed as a part of the Contract.

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1. the Contract Agreement;

2. the Letter of Acceptance;

3. the Letter of Tender (without Appendices);

4. the Addenda, Corrigendum and clarifications;

5. the Particular Conditions (Part A – Contract Data);

6. the Particular Conditions (Part B – Special Provisions);

7. the General Conditions of Contract;

8. the Terms of Reference (ToR) - Volume III;

9. the Client’s Volume I and Volume IV [Pricing Document]

10. the Consultant’s Priced Financial Bid (Pricing Document), as accepted by

the Client and included in this Contract Agreement.
11. the Consultant’s Proposal;
12. any other document(s) forming part of the Contract Agreement.

All of the foregoing documents, together with this Contract Agreement, are
referred to herein as the Contract Documents. Also incorporated into these
Contract Documents, and made part hereof, are all codes, standard specifications,
and similar requirements that are referred to therein. In the event of a conflict,
ambiguity or discrepancy between the contents of the Contract Documents, the
order of precedence shall be as per the Conditions of Contract, and the Client/ the
Client’s Representative/ the Engineer shall issue any necessary clarification or
instruction according to the Particular Conditions of Contract.

Clause 3 Obligation of the Consultant

The Consultant agrees, subject to the terms and conditions of the Contract
Documents, to perform efficiently and faithfully all of the Services, namely,
“……………………………………………………………………” and other facilities
requisite for or incidental to the successful completion of the Services and in
carrying out all duties and obligations imposed by the Contract Documents.
Clause 4 Obligation of the Client
The Client agrees, subject to the terms and conditions of the Contract Documents,
to pay the Consultant the amount specified, and at the rates and terms and in the
manner set forth in the Contract Documents.
Clause 5 Contract Price and Time for Completion
The Client agrees to pay for the total cost of the Services and the Consultant
agrees to accept the sums mentioned below in the following currencies, to be the
total cost for the Services carried out by them as part of their obligations,
responsibilities and liabilities under and according to the provisions and obligations
imposed on them by the Contract.

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The Accepted Contract Amount of INR …………………… (Rupees

………………………only) comprising ….............................................. and
….............................................., subject to adjustment in accordance with the
provisions of the Contract.

The Accepted Contract Amount/ Contract Price shall be inclusive of all taxes,
duties, cess, levies, royalties, etc., except GST, and other charges leviable and
payable to the authorities including taxes to be deducted at source etc., in terms
of the Contract. The Client shall deduct the taxes at source as per the rules in force
time to time and as per the prevalent laws including the statutory authorities’
requirement.

The Consultant shall complete the whole of the Services within …. (…………..)
[months/ weeks] from the Commencement Date stipulated in the Letter or
Acceptance No. ….............................................. (including Notice to Commence).
Clause 6 Notices
All notices called for by the terms or the Contract Documents shall be in writing in
the English language and shall be delivered by hand or by registered mail,
acknowledgement due, to the parties’ addresses given below. All notices shall be
to be duly made by the party to whom it is addressed at the following addresses
or such other addresses as such party may subsequently notify to the other party.

Client: Madhya Pradesh Metro Rail Corporation Limited

2nd Floor,
Smart City Development Corporation Limited Building,
Kalibadi Road, BHEL,
Sector A, Berkheda,
Bhopal – 462022, Madhya Pradesh, India.

Consultant: …………………………………… ,
………………………………… ,
……………………………… ,
…………………………… ,
………………………… ,
Clause 7 Integration
The Client and the Consultant agree that this Contract Agreement, together with
the other Contract Documents, expresses all of the agreements, understandings,
promises and covenants of the parties, and that it integrates, combines, and
supersedes all prior and contemporaneous negotiations, understandings, and
agreements, whether written or oral and no modification or alteration of the
Contract Documents shall be valid or binding on either party, unless expressed in
writing and executed with the same formality as this Contract Agreement, except
as may otherwise be specifically provided in the Contract Documents.
Clause 8 Governing Law

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This Contract is enforceable and construed under the laws of the Republic of India.
Clause 9 Language
This Contract Agreement and the other Contract Documents are made in the
English language.
Clause 10 Jurisdiction of Court
The Courts at Bhopal shall have the exclusive jurisdiction to try all disputes arising
out of this Contract between the parties.

In WITNESS WHEREOF, the Client and the Consultant have caused this Contract Agreement
to be duly executed by their duly authorized representatives the day and year first above
written.

The Client The Consultant

__________________________________ __________________________________

Madhya Pradesh Metro Rail Corporation ……………………………………

Limited

Witnesses

(1) _______________________________ (1) _______________________________

_______________________________ _______________________________

(2) _______________________________ (2) _______________________________

_______________________________ _______________________________

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