right of the employer to terminate for convenience and ... · environment, transport and works...

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MEMO

From Secretary for Development To Distribution

Ref ( ) in DEVB(W) 510/10/01 (Attn : )

Tel. No. 3509 8279 Your Ref.

Fax No. 2905 1181 dated

Email [email protected] Fax No.

Date 20 December 2012 Total Pages 2 + Encl.

Environment, Transport and Works Bureau Technical Circular (Works) No. 23/2004

Risk allocation with respect to changes in law

Amendments to the List of Enactments attached to Special Conditions of Contract (SCC) on “Changes in Law”

We enclose the amended list of enactments (revised Appendix A-1 of the captioned Circular) for attachment to the SCC on “Changes in Law”. 2. Your attention is drawn to that the recently repealed Lifts and Escalators (Safety) Ordinance (Cap. 327) is deleted from the list. The following ordinances are included into the list:-

(i) Construction Workers Registration Ordinance (Cap. 583); (ii) Construction Industry Council Ordinance (Cap. 587); and (iii) Lifts and Escalators Ordinances (Cap. 618).

3. The amended list of enactments shall take immediate effect for inclusion in all categories of works contract including capital works contracts, term contracts and Design and Build contracts adopting the SCC on “Changes in Law”. For contracts for which tenders have been invited, project officers should include the amended list if there is sufficient time to issue a tender addendum. 4. For enquiries, please contact Mr. P W CHAN, AS(WP)12, at telephone no. 3509 8382.

( Kelvin LO )

for Secretary for Development

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- 2 -

Distribution D Arch S DCED D of DS DEMS D of Hy DWS c.c. DAFC DB DEP DFEH DHA D of H D of Lands DLCS D of Plan C for T

L:\wp\PSU\AS(PS)2\AS(WP)12\Library of SCC\SCC - Changes in Law (list updating)\Dist-1220-changes in law (list updating).doc

ETWB TC(W) No. 23/2004 Appendix A-1 Revised Page A1-1 of 2 (17.12.2012)

Appendix A-1

SCC – changes in Law List of Enactments

Cap. Ordinance Title

28 Lands (Miscellaneous Provisions) Ordinance

47 Apprenticeship Ordinance

51 Gas Safety Ordinance

53 Antiquities and Monuments Ordinance

56 Boilers and Pressure Vessels Ordinance

59 Factories and Industrial Undertakings Ordinance

95 Fire Services Ordinance

102 Waterworks Ordinance

115 Immigration Ordinance

121 Buildings Ordinance (Application to the New Territories) Ordinance

123 Buildings Ordinance

127 Foreshore and Sea-bed (Reclamations) Ordinance

147 Sand Ordinance

295 Dangerous Goods Ordinance

311 Air Pollution Control Ordinance

313 Shipping and Port Control Ordinance

317 Industrial Training (Construction Industry) Ordinance

354 Waste Disposal Ordinance

ETWB TC(W) No. 23/2004 Appendix A-1 Revised Page A1-2 of 2 (17.12.2012)


358 Water Pollution Control Ordinance

360 Pneumoconiosis (Compensation) Ordinance

370 Roads (Works, Use and Compensation) Ordinance

400 Noise Control Ordinance

403 Ozone Layer Protection Ordinance

406 Electricity Ordinance

411 Employees’ Compensation Insurance Levies Ordinance

446 Land Drainage Ordinance

466 Dumping at Sea Ordinance

470 Builders’ Lifts and Tower Working Platforms (Safety) Ordinance

499 Environmental Impact Assessment Ordinance

509 Occupational Safety and Health Ordinance

583 Construction Workers Registration Ordinance

587 Construction Industry Council Ordinance

618 Lifts and Escalators Ordinance

政府總部

環境運輸及工務局香港花園道美利大廈

Environment, Transport and Works Bureau

Government Secretariat Murray Building, Garden Road,

Hong Kong

香港特別行政區政府 The Government of the Hong Kong Special Administrative Region

Ref : ETWB(W) 510/10/01 Group : 5

21 July 2004

Environment, Transport and Works Bureau Technical Circular (Works) No. 23/2004

Right of the Employer to terminate for convenience

and Risk allocation with respect to changes in law

Scope This Circular promulgates a set of mandatory Special Conditions of Contract (SCCs) introducing a right for the Employer to terminate a contract for convenience and a shift in the allocation of risks with respect to changes in law. Effective Date 2. This Circular takes effect on tenders for works contracts invited on or after 1 August 2004. Effect on Existing Circular 3. PWDTC Nos. 13/79 and 4/81 are hereby deleted. WBTC 18/2000, Library of Standard Special Conditions of Contract, when updated will include the SCCs promulgated under this circular. Changes made to the General Conditions of Contract 4. The following changes to the General Conditions of Contract are to be made:

ETWB TC(W) No. 23/2004 Page 1 of 2

(i) Pass the risk of changes in law (construction related) from the Contractor to the Employer.

(ii) Introduce the right of the Employer to terminate a contract for

convenience. 5. A set of Special Conditions of Contract (SCCs) to implement the above changes is provided in Appendix A. These SCCs, with the appropriate version adopted, shall be incorporated into all categories of works contract including capital works contracts, term contracts and D & B contracts. Any amendments to the list of ordinance appended to the SCC on changes in law shall be subject to approval from the Works Policy Section of this Bureau. 6. Departments should bear in mind that in exercising the right to terminate a contract for convenience, there will be significant financial implications on the Employer as well as the Contractor. Departments will have to justify their case before terminating a contract. It is envisaged that only in very exceptional circumstances termination may be justified, e.g. the Employer has abandoned the project or has decided to suspend the project indefinitely or for a prolonged period due to interfacing problems. If departments wish to terminate a contract because of the poor progress or other defaults on the part of the contractor, the contractor’s employment should be terminated under the relevant provisions of the contract instead of the SCC to terminate for convenience.

( C S Wai ) Deputy Secretary for the Environment,

Transport and Works (Works) 2

ETWB TC(W) No. 23/2004 Page 2 of 2

Appendix A

Special Conditions of Contract on right of Government to terminate for convenience

(Applicable to Capital Works Contracts)

SCC No. xx (1) Notwithstanding the provisions of any other clause in the Contract, the

Employer shall, in addition to any other power enabling it to terminate the Contract, have power to terminate the Contract at any time by notice in writing to the Contractor and the termination shall take effect on a date specified in the notice but without prejudice to the claims of either party in respect of any antecedent breach thereof. Upon receipt of the notice of termination the Contractor shall, unless directed by the Engineer/Architect* pursuant to sub-clause (4) hereunder, suspend all the work and stop incurring further expenditure with respect to any work under the Contract except for work which is necessary for the protection of life or property or for the safety of the Works.

(2) Except as provided in sub-clause (3) of this Clause, the Employer shall

not terminate the Contract under this Clause in order to execute the Works himself or to arrange for the Works to be executed by another contractor.

(3) The Employer is entitled to terminate the Contract under this Clause and

thereafter to execute the Works himself or to arrange for the Works to be executed by another contractor if the Engineer/Architect* shall certify in writing to the Employer that in his opinion the completion of the Works will be delayed by a period of not less than one year due to interfacing problems or programme slippages of associated works outside the scope of the Contract.

(4) After the issue of the notice of termination to the Contractor under

sub-clause (1), the Engineer/Architect* shall as soon as practicable and in any case not later than the date of termination specified in the notice give directions with which the Contractor shall comply with all reasonable despatch as to all or any of the following matters:

ETWB TC(W) No. 23/2004 Appendix A Page A1 of 30

(a) the performance of further work in accordance with the provisions of the Contract, where such further work is necessary for the protection of life or property or for the safety of the Works;

(b) the protection of work executed under the Contract or any work

required to leave the Site in a clean and safe condition; (c) the removal of all Constructional Plant, Temporary Works and

temporary buildings from the Site; (d) the removal of materials placed on the Site; (e) the removal of any debris or rubbish and the clearing and making

good of the Site; (f) the termination or assignment of any sub-contracts and contracts,

including those for the hire of plant, services and insurance, entered into by the Contractor for the purposes of or in connection with the Contract;

(g) the assignment of warranties for materials placed on the Site ; and (h) any other matter arising out of the Contract with regard to which

the Employer may decide that directions are necessary or expedient.

(5) All Constructional Plant, Temporary Works, temporary buildings and

materials properly brought on to the Site shall be removed by the Contractor as and when they cease to be required in accordance with directions given by the Engineer/Architect* under sub-clause (4). The Constructional Plant, Temporary Works, temporary buildings and materials which have become the property of the Employer under Clauses 71 and 72 of the General Conditions of Contract shall upon such removal re-vest in the Contractor. If the Contractor shall fail to remove any such Constructional Plant, Temporary Works, temporary buildings or materials as aforesaid, the Employer may

(a) sell any such Constructional Plant, Temporary Works, temporary

buildings or materials which has become the property of the


Employer under Clauses 71 and 72 of the General Conditions of Contract and after deducting from any proceeds of sale the costs, charges and expenses of and in connection with such sale shall pay the balance, if any, to the Contractor but to the extent that the proceeds of sale are insufficient to meet all such costs, charges and expenses the excess shall be a debt due from the Contractor to the Employer and may be deducted by the Employer from any money due or which may become due to the Contractor whether under this or any other contract with the Employer in accordance with the provisions of Clause 83 of the General Conditions of Contract; or

(b) dispose the same in a manner which the Employer considers most appropriate and any costs, charges and expenses so incurred shall be recoverable by the Employer from the Contractor in the manner aforesaid.

Provided that in the event of any such Constructional Plant not solely

owned by the Contractor and the Contractor fails to remove such Constructional Plant, the Employer may return such Constructional Plant at the expense of the Contractor to the person, firm or company from whom such Constructional Plant was held by the Contractor and any expense so incurred may be recovered by the Employer from the Contractor in the manner aforesaid.

Provided further that the Employer shall not at any time be liable for the

loss of or damage to any Constructional Plant, Temporary Works, temporary buildings or materials which the Contractor shall fail to remove from the Site under this sub-clause.

(6) If –

(a) the Contractor is unable or unwilling with all reasonable despatch to carry out any work or other matter specified in directions given to him by the Engineer/Architect* in terms of sub-clause (4), or

(b) the Employer considers that any other urgent work not specified in

directions given to the Contractor under sub-clause (4) shall be carried out by a person other than the Contractor,


the Engineer/Architect* may authorize the carrying out of such work or such other urgent work by a person other than the Contractor and if such work or other work is work which, in the opinion of the Engineer/Architect*, the Contractor was liable to do at his own expense under the Contract, all costs, charges and expenses properly incurred in carrying out the same shall on demand be paid by the Contractor to the Employer or may be deducted by the Employer from any money due or which may become due to the Contractor whether under this or any other contract with the Employer in accordance with the provisions of Clause 83 of the General Conditions of Contract.

(7) In the event of termination of the Contract under this Clause the

Contractor shall be paid by the Employer, in so far as such items have not already been covered by payment on account made to the Contractor, for all work executed prior to the date of termination to be valued in accordance with the Contract and in addition, subject to sub-clause (8) :

(a) the sums payable in respect of preliminary items in so far as the

work or service comprised therein has been carried out or performed and a proper proportion, as certified by the Engineer/Surveyor*, of all such items the work or service comprised therein has been partially carried out or performed;

(b) the cost of materials ordered for the Works which have been

delivered to the Contractor or of which the Contractor is liable to accept delivery or any advanced payment made for materials ordered for the Works, such materials becoming the property of the Employer upon such payment being made by the Employer;

(c) a sum to be certified by the Engineer/Surveyor* being any Cost

reasonably incurred by the Contractor for the purpose of completing the Works in so far as such Cost shall not have been paid in accordance with any other sub-clause of this Clause or any other Clause under the Contract.

(d) the additional cost of removal, as compare to removal if the

contract had been performed to completion, under sub-clause (5) of all Constructional Plant, Temporary Works, temporary buildings and materials from the Site and, if required by the Contractor,


return thereof to the Contractor’s country of origin or to any other destination at no greater cost and certified by the Engineer/Surveyor* as reasonable;

(e) a sum to be certified by the Engineer/Surveyor* being any

reasonable sum expended by the Contractor because of the termination of the Contract in respect of

(i) the uncompleted part of any sub-contract and other contracts

(including those for the hire of plant, services and insurance), and

(ii) the curtailment of any contract of employment,

entered into exclusively in connection with the Contract.

Provided always that against any payments due from the Employer under this sub-clause the Employer shall be entitled to be credited with rebates from insurance, credit value of plant/equipment for the Engineer’s/Architect’s* use prematurely re-delivered to the Contractor and any outstanding balances due from the Contractor for advances in respect of plant and materials and any sum paid in advance by the Employer to the Contractor in respect of the execution of the Works.

(8) The Contractor shall, in any sub-contract or contract made by him in

connection with or for the purposes of the Contract, reserve the power to determine such sub-contract or contract in the event of the termination of the Contract by the Employer in accordance with the provisions of this Clause upon terms similar to the terms of this Clause. The Contractor shall not be entitled to compensation of any expenditure resulting from non-compliance with this requirement.

(9) Within 90 days after the date of issue of the notice of termination under

sub-clause (1), the Contractor shall submit to the Engineer/Surveyor* a statement of account and supporting documentation showing in detail the value in accordance with the Contract of the work done as of the date of termination together with all further sums which the Contractor considers to be due to him under this Clause. Within 90 days after


receipt of the final account and of all information reasonably required for its verification, the Engineer/Surveyor* shall issue a payment certificate stating the sum which in his opinion is finally due to the Contractor on termination under this Clause. The sum shall be paid to the Contractor by the Employer within 21 days of the date of the certification.

(10) Payment to the Contractor under sub-clause (7) shall be in full and final

settlement of all claims, costs and charges incurred by the Contractor as a result of the Contract under this Clause.

(11) This Clause shall survive and remain in force after termination of the

Contract in accordance with this Clause. * Delete as appropriate.


Special Conditions of Contract on right of Government to terminate for convenience

(Applicable to Design-and-Build Contracts)


Employer shall, in addition to any other power enabling it to terminate the Contract, have power to terminate the Contract at any time by notice in writing to the Contractor and the termination shall take effect on a date specified in the notice but without prejudice to the claims of either party in respect of any antecedent breach thereof. Upon receipt of the notice of termination the Contractor shall, unless directed by the Supervising Officer pursuant to sub-clause (4) hereunder, suspend all the work and stop incurring further expenditure with respect to any work under the Contract except for work which is necessary for the protection of life or property or for the safety of the Works.




thereafter to execute the Works himself or to arrange for the Works to be executed by another contractor if the Supervising Officer shall certify in writing to the Employer that in his opinion the completion of the Works will be delayed by a period of not less than one year due to interfacing problems or programme slippages of associated works outside the scope of the Contract.


sub-clause (1), the Supervising Officer shall as soon as practicable and in any case not later than the date of termination specified in the notice give directions with which the Contractor shall comply with all reasonable despatch as to all or any of the following matters:

(a) the performance of further work in accordance with the provisions


of the Contract, where such further work is necessary for the protection of life or property or for the safety of the Works;


required to leave the Site in a clean and safe condition; (c) the removal of all Constructional Plant, Temporary Works and

temporary buildings from the Site; (d) the removal of materials placed on the Site; (e) the removal of any debris or rubbish and the clearing and making

good of the Site; (f) the termination or assignment of any sub-contracts and contracts,


(g) the assignment of warranties for materials placed on the Site ; and (h) any other matter arising out of the Contract with regard to which



materials properly brought on to the Site shall be removed by the Contractor as and when they cease to be required in accordance with directions given by the Supervising Officer under sub-clause (4). The Constructional Plant, Temporary Works, temporary buildings and materials which have become the property of the Employer under Clauses 71 and 72 of the General Conditions of Contract shall upon such removal re-vest in the Contractor. If the Contractor shall fail to remove any such Constructional Plant, Temporary Works, temporary buildings or materials as aforesaid, the Employer may

(a) sell any such Constructional Plant, Temporary Works, temporary

buildings or materials which has become the property of the Employer under Clauses 71 and 72 of the General Conditions of


Contract and after deducting from any proceeds of sale the costs, charges and expenses of and in connection with such sale shall pay the balance, if any, to the Contractor but to the extent that the proceeds of sale are insufficient to meet all such costs, charges and expenses the excess shall be a debt due from the Contractor to the Employer and may be deducted by the Employer from any money due or which may become due to the Contractor whether under this or any other contract with the Employer in accordance with the provisions of Clause 83 of the General Conditions of Contract; or

(b) dispose the same in a manner which the Employer considers most

appropriate and any costs, charges and expenses so incurred shall be recoverable by the Employer from the Contractor in the manner aforesaid.

Provided that in the event of any such Constructional Plant not solely owned by the Contractor and the Contractor fails to remove such Constructional Plant, the Employer may return such Constructional Plant at the expense of the Contractor to the person, firm or company from whom such Constructional Plant was held by the Contractor and any expense so incurred may be recovered by the Employer from the Contractor in the manner aforesaid.

Provided further that the Employer shall not at any time be liable for the loss of or damage to any Constructional Plant, Temporary Works, temporary buildings or materials which the Contractor shall fail to remove from the Site under this sub-clause.

(6) If –

(a) the Contractor is unable or unwilling with all reasonable despatch to carry out any work or other matter specified in directions given to him by the Supervising Officer in terms of sub-clause (4), or

(b) the Employer considers that any other urgent work not specified in

directions given to the Contractor under sub-clause (4) shall be carried out by a person other than the Contractor,

the Supervising Officer may authorize the carrying out of such work or


such other urgent work by a person other than the Contractor and if such work or other work is work which, in the opinion of the Supervising Officer, the Contractor was liable to do at his own expense under the Contract, all costs, charges and expenses properly incurred in carrying out the same shall on demand be paid by the Contractor to the Employer or may be deducted by the Employer from any money due or which may become due to the Contractor whether under this or any other contract with the Employer in accordance with the provisions of Clause 83 of the General Conditions of Contract.




work or service comprised therein has been carried out or performed and a proper proportion, as certified by the Supervising Officer, of all such items the work or service comprised therein has been partially carried out or performed;

(b) the cost of materials ordered for the Works which have been


(c) a sum to be certified by the Supervising Officer being any Cost

reasonably incurred by the Contractor for the purpose of completing the Works in so far as such Cost shall not have been paid in accordance with any other sub-clause of this Clause or any other Clause under the Contract.

(d) the additional cost of removal, as compare to removal if the

contract had been performed to completion, under sub-clause (5) of all Constructional Plant, Temporary Works, temporary buildings and materials from the Site and, if required by the Contractor, return thereof to the Contractor’s country of origin or to any other destination at no greater cost and certified by the Supervising


Officer as reasonable; (e) a sum to be certified by the Supervising Officer being any

reasonable sum expended by the Contractor because of the termination of the Contract in respect of



(ii) the curtailment of any contract of employment, entered into exclusively in connection with the Contract.

Provided always that against any payments due from the Employer under this sub-clause the Employer shall be entitled to be credited with rebates from insurance, credit value of plant/equipment for the Supervising Officer’s use prematurely re-delivered to the Contractor and any outstanding balances due from the Contractor for advances in respect of plant and materials and any sum paid in advance by the Employer to the Contractor in respect of the execution of the Works.



(9) Within 90 days after the date of issue of the notice of termination under

sub-clause (1), the Contractor shall submit to the Supervising Officer a statement of account and supporting documentation showing in detail the value in accordance with the Contract of the work done as of the date of termination together with all further sums which the Contractor considers to be due to him under this Clause. Within 90 days after receipt of the final account and of all information reasonably required for its verification, the Supervising Officer shall issue a payment certificate stating the sum which in his opinion is finally due to the


Contractor on termination under this Clause. The sum shall be paid to the Contractor by the Employer within 21 days of the date of the certification.




Contract in accordance with this Clause. (12) General Conditions of Contract 7 is amended by adding “or Special

Conditions of Contract Clause (xx)# after “Clause 84” on line 3 of sub-clause (2).

* Delete as appropriate. # Insert appropriate clause number.


Special Condition of Contract on right of Government to terminate for convenience

(applicable to term contracts)


Employer shall, in addition to any other power enabling it to terminate the Contract, have power to terminate the Contract at any time by notice in writing to the Contractor and the termination shall take effect on a date specified in the notice but without prejudice to the claims of either party in respect of any antecedent breach thereof. Upon receipt of the notice of termination the Contractor shall, unless directed by the Engineer/Maintenance Surveyor* pursuant to sub-clause (4) hereunder, suspend all the work and stop incurring further expenditure with respect to any work under the Contract except for work which is necessary for the protection of life or property or for the safety of the Works.




thereafter to execute the Works himself or to arrange for the Works to be executed by another contractor if the Engineer/Maintenance Surveyor* shall certify in writing to the Employer that in his opinion the completion of the Works will be delayed by a period of not less than one year due to interfacing problems or programme slippages of associated works outside the scope of the Contract.


sub-clause (1), the Engineer/Maintenance Surveyor* shall as soon as practicable and in any case not later than the date of termination specified in the notice give directions with which the Contractor shall comply with all reasonable despatch as to all or any of the following matters:


(a) the performance of further work in accordance with the provisions of the Contract, where such further work is necessary for the protection of life or property or for the safety of the Works;


required to leave the whole of all Sites in a clean and safe condition;

(c) the removal of all Constructional Plant, Temporary Works and

temporary buildings from all Sites; (d) the removal of materials placed on all Sites; (e) the removal of any debris or rubbish and the clearing and making

good of the whole of all Sites; (f) the termination or assignment of any sub-contracts and contracts,


(g) the assignment of warranties for materials placed on the site ; (h) any other matter arising out of the Contract with regard to which



materials properly brought on to such Sites shall be removed by the Contractor as and when they cease to be required in accordance with directions given by the Engineer/Maintenance Surveyor* under sub-clause (4). The Constructional Plant, Temporary Works, temporary buildings and materials which has become the property of the Employer under Clauses 71/72* and 72/73* of the General Conditions of Contract shall upon such removal re-vest in the Contractor. If the Contractor shall fail to remove any such Constructional Plant, Temporary Works, temporary buildings or materials as aforesaid, the Employer may


(a) sell any such Constructional Plant, Temporary Works, temporary buildings or materials which has become the property of the Employer under Clauses 71/72* and 72/73* of the General Conditions of Contract and after deducting from any proceeds of sale the costs, charges and expenses of and in connection with such sale shall pay the balance, if any, to the Contractor but to the extent that the proceeds of sale are insufficient to meet all such costs, charges and expenses the excess shall be a debt due from the Contractor to the Employer and may be deducted by the Employer from any money due or which may become due to the Contractor whether under this or any other contract with the Employer in accordance with the provisions of Clause 86/89* of the General Conditions of Contract; or

(b) dispose the same in a manner which the Employer considers most

appropriate and any costs, charges and expenses so incurred shall be recoverable by the Employer from the Contractor in the manner aforesaid.

Provided that in the event of any such Constructional Plant not solely owned by the Contractor and the Contractor fails to remove such Constructional Plant, the Employer may return such Constructional Plant at the expense of the Contractor to the person, firm or company from whom such Constructional Plant was held by the Contractor and any expense so incurred may be recovered by the Employer from the Contractor in the manner aforesaid.

Provided further that the Employer shall not at any time be liable for the loss of or damage to any Constructional Plant, Temporary Works, temporary buildings or materials which the Contractor shall fail to remove from the Sites under this sub-clause.

(6) If –

(a) the Contractor is unable or unwilling with all reasonable despatch to carry out any work or other matter specified in directions given to him by the Engineer/Maintenance Surveyor* in terms of sub-clause (4), or


(b) the Employer considers that any other urgent work not specified in directions given to the Contractor under sub-clause (4) shall be carried out by a person other than the Contractor,

the Engineer/Maintenance Surveyor* may authorize the carrying out of such work or such other urgent work by a person other than the Contractor and if such work or other work is work which, in the opinion of the Engineer/Maintenance Surveyor*, the Contractor was liable to do at his own expense under the Contract, all costs, charges and expenses properly incurred in carrying out the same shall on demand be paid by the Contractor to the Employer or may be deducted by the Employer from any money due or which may become due to the Contractor whether under this or any other contract with the Employer in accordance with the provisions of Clause 86/89* of the General Conditions of Contract.




work or service comprised therein has been carried out or performed and a proper proportion, as certified by the Engineer/Maintenance Surveyor*, of all such items the work or service comprised therein has been partially carried out or performed;

(b) the cost of materials ordered for any of the Works which have been


(c) a sum to be certified by the Engineer/Maintenance Surveyor* being

any Cost reasonably incurred by the Contractor for the purpose of completing any of the Works in so far as such Cost shall not have been paid in accordance with any other sub-clause of this Clause or


any other Clause under the Contract. (d) the additional cost of removal, as compare to removal if the

contract had been performed to completion, under sub-clause (3) of all Constructional Plant, Temporary Works, temporary buildings and materials from all Sites and, if required by the Contractor, return thereof to the Contractor’s country of origin or to any other destination at no greater cost and certified by the Engineer/Maintenance Surveyor* as reasonable;

(e) a sum to be certified by the Engineer/Maintenance Surveyor* being

any reasonable sum expended by the Contractor because of the termination of the Contract in respect of



(ii) the curtailment of any contract of employment, entered into exclusively in connection with the Contract.

Provided always that against any payments due from the Employer under this sub-clause the Employer shall be entitled to be credited with rebates from insurance, credit value of plant/equipment for the Engineer’s/Maintenance Surveyor’s* use prematurely re-delivered to the Contractor and any outstanding balances due from the Contractor for advances in respect of plant and materials and any sum paid in advance by the Employer to the Contractor in respect of the execution of any of the Works.




(9) Within 90 days after the date of issue of the notice of termination under sub-clause (1), the Contractor shall submit to the Engineer/Maintenance Surveyor* a statement of account and supporting documentation showing in detail the value in accordance with the Contract of the work done as of the date of termination together with all further sums which the Contractor considers to be due to him under this Clause. Within 90 days after receipt of the final account and of all information reasonably required for its verification, the Engineer/Maintenance Surveyor* shall issue a payment certificate stating the sum which in his opinion is finally due to the Contractor on termination under this Clause. The sum shall be paid to the Contractor by the Employer within 21 days of the date of the certification.




Contract in accordance with this Clause. * Delete as appropriate.


SCC on Changes in Law

(Applicable to Capital Works Contracts) SCC No. xx (1) General Conditions of Contract Clause 1(1) is amended by adding the

following definition :

““Change in Law” means any addition or amendment to any enactment, regulations, bye-laws or rules listed in Appendix (A-1)# attached to these Special Conditions Contract

a) made on or after the date 10 days prior to the tender closing date; or b) made before the date 10 days prior to the tender closing date and

the commencement date of which is only ascertainable on or after the date 10 days prior to the tender closing date and the Contract does not expressly provide for the parties’ respective rights and obligations in relation to compliance with such addition or amendment upon its commencement.”

(2) General Conditions of Contract Clause 29 is deleted and replaced by the

following:

“29. The Contractor shall give all notices and pay all licences, levies, premiums or other fees required to be given or paid by reason of any enactment or any regulations or bye-laws of any local or other duly constituted authority in relation to the execution of the Works and by the rules and regulations of all public bodies and statutory authorities whose property or rights are affected or may be affected in any way by the Works, including any new fee and any change in existing fees

a) made on or after the date 10 days prior to the tender closing date; or b) made before the date 10 days prior to the tender closing date and

the commencement date of which is only ascertainable on or after the date 10 days prior to the tender closing date.”


(3) General Conditions of Contract Clause 30 shall be amended by replacing “and any additions or amendments thereto ...... .any such enactment, regulations, bye-laws or rules” by the following :

“and any additions or amendments thereto or any new enactment, regulations, bye-laws or rules made during the continuance of the Works, which are applicable to the Works, and shall be responsible for the payment of all penalties and fines and discharge of all liabilities under such enactment, regulations, bye-laws or rules and shall keep the Employer indemnified against all penalties and fines and liabilities of every kind for breach of any such enactment, regulations, bye-laws or rules. For the avoidance of doubt, the Contractor shall, under no circumstances, be paid by the Employer for any penalties, fines and liabilities under such enactment, regulations, bye-laws or rules nor shall the Final Contract Sum be adjusted for that purpose.”

(4) The following shall be added as Clause 30A after General Conditions of

Contract Clause 30:

“30A(1) The Final Contract Sum shall, subject to sub-clause (2) of this Clause, be adjusted to take account of any increase or decrease in Cost (but excluding overheads whether on or off the Site) to the Contractor in the execution of the Contract resulting from any Change in Law.

(2) If the Engineer/Surveyor* is of the opinion the Contractor has

been or is likely to be involved in decrease in Cost (but excluding overheads whether on or off the Site) to the Contractor in the execution of the Contract resulting from any Change in Law or upon written application by the Contractor to the Engineer/Surveyor* the Engineer/Surveyor* is of the opinion that the Contractor has been or is likely to be involved in increase in Cost (but excluding overheads whether on or off the Site) to the Contractor in the execution of the Contract for which the Contractor would not be reimbursed by a payment made under any other provision of the Contract resulting from any Change in Law , the Engineer/Surveyor* shall value the decrease or, as the case may be, ascertain the increase and shall certify in accordance with Clause 79.”


(5) General Conditions of Contract Clause 50 is amended by:-

a) adding the following as sub-clause (1)(b)(ixa) before sub-clause

(1)(b)(x):

“ (ixa) any Change in Law , or” b) replacing “(ix)” on line 2 of sub-clause (1)(b)(x) by “(ixa)”.

* Delete as appropriate. # Amend to appropriate Appendix reference.



(Applicable to Design-and-Build Contracts) (1) General Conditions of Contract Clause 1(1) is amended by adding the

following definition:


(a) made on or after the date 10 days prior to the tender closing date ;

or (b) made before the date 10 days prior to the tender closing date and



following:

“29. The Contractor shall give all notices and pay all licences, levies, premiums or other fees required to be given or paid by reason of any enactment or any regulations or bye-laws of any local or other duly constituted authority in relation to the execution of the Works and by the rules and regulations of all public bodies and statutory authorities whose property or rights are affected or may be affected in any way by the Works, including any new fee and any change in existing fees

a) made on or after the date 10 days prior to the tender closing

date; or b) made before the date 10 days prior to the tender closing date

and the commencement date of which is only ascertainable on or after the date 10 days prior to the tender closing date.”


(3) General Conditions of Contract Clause 30(1) shall be amended by replacing “and any additions or amendments thereto ..... any such enactment, regulations, bye-laws or rules” by the following :


(4) General Conditions of Contract Clause 30(2) is deleted and substituted by the following:

“(2) Notwithstanding the Contractor’s obligations under Clause 30(1)

and the definition of “Variation” in Clause 1(1), in the event that there is any Change in Law, Clause 30(3) or Clause 30(4) or both may be applicable.

(3) If in the opinion of the Supervising Officer the Employer’s

Requirements are precluding conformity with such Change in Law, the Supervising Officer shall order a Variation to ensure conformity with such Change in Law and such Variation shall be valued in accordance with Clause 61.

(3) If, irrespective of whether a Variation has been ordered under

Clause 30(3), the Supervising Officer is of the opinion that the Contractor has been or is likely to be involved in decrease in Cost (but excluding overheads whether on or off the Site) to the Contractor in the execution of the Contract resulting from any Change in Law or upon written application by the Contractor to the Supervising Officer, the Supervising Officer is of the opinion that the Contractor has been or is likely to be involved in increase in Cost (but excluding overheads whether on or off the Site) to the Contractor in the execution of the Contract for


which the Contractor would not be reimbursed by a payment made under any other provision of the Contract resulting from any Change in Law, the Supervising Officer shall value the decrease or, as the case may be, ascertain the increase and shall certify in accordance with Clause 79. The Final Contract Sum shall be adjusted to take into account any decrease or increase in Cost (excluding overheads whether on or off site) to the Contractor in the execution of the Contract resulting from any Change in Law.

(4) Where a Variation has been ordered in accordance with Clause

30(3) in respect of any Change in Law, the Supervising Officer when valuing the decreased Cost (excluding overheads whether on or off the Site) or, as the case may be, ascertaining the increased Cost (excluding overheads whether on or off the Site) resulting from such Change in Law in accordance with Clause 30(4) shall take into account the adjustment to the Final Contract Sum already made under any provision in the Contract as a result of the Variation.”

(5) General Conditions of Contract Clause 50 is amended by:-

(a) adding the following as sub-clause (1)(b)(ixa) before sub-clause (1)(b)(x):

B) “(ixa) any Change in Law, or”

# Amend to appropriate Appendix reference.



(Applicable to Term Contracts) SCC No. xx (1) General Conditions of Contract Clause 1(1) is amended by adding the

following definition :


a) made on or after the date 10 days prior to the tender closing date;

or b) made before the date 10 days prior to the tender closing date and



following:

“31. The Contractor shall give all notices and pay all licences, levies, premiums or other fees required to be given or paid by reason of any enactment or any regulations or bye-laws of any local or other duly constituted authority in relation to the execution of any Works and by the rules and regulations of all public bodies and statutory authorities whose property or rights are affected or may be affected in any way by any Works, including any new fee and any change in existing fees

a) made on or after the date 10 days prior to the tender closing

date; or


b) made before the date 10 days prior to the tender closing date and the commencement date of which is only ascertainable on or after the date 10 days prior to the tender closing date.”

(3) General Conditions of Contract Clause 32 shall be amended by

replacing “and any additions or amendments thereto ..... any such enactment, regulations, bye-laws or rules” by the following :


(4) The following shall be added as Clause 32A after General Conditions of

Contract Clause 32:

“32A(1) The final account for such Works, shall subject to sub-clause (2) of this clause, be adjusted to take account any increase or decrease in Cost (but excluding overheads whether on or off the Site) to the Contractor in the execution of the Contract resulting from any Change in Law

(2) If the Engineer/Maintenance Surveyor* is of the opinion that

the Contractor has been or is likely to be involved in decrease in Cost (but excluding overheads whether on or off the Site) to the Contractor in the execution of the Contract resulting from any Change in Law or upon written application by the Contractor to the Engineer/Maintenance Surveyor* the Engineer/Maintenance Surveyor* is of the opinion that the Contractor has been or is likely to be involved in increase in Cost (but excluding overheads whether on or off the Site) to the Contractor in the execution


of the Contract for which the Contractor would not be reimbursed by a payment made under any other provision of the Contract resulting from any Change in Law , the Engineer/Maintenance Surveyor* shall value the decrease or, as the case may be, ascertain the increase and shall certify in accordance with Clause 78/79A/79B*.

(5) General Conditions of Contract Clause 52/53* is amended by:-

(a) adding the following as sub-clause (1)(b)(ixa) before sub-clause (1)(b)(x):

B) “ (ixa) any Change in Law, or”

* Delete as appropriate. # Amend to appropriate Appendix reference.


Special Conditions of Contract To amend the Settlement of Disputes Clause

(Applicable to Capital Works/Design-and-Build Contracts)

General Conditions of Contract Clause 86 is amended by (i) amending “save as provided for in sub-clause (4)/(9)” in sub-clause

(3)/sub-clause (8) to “ save as provided for in sub-clauses (4) and (4A)/sub-clauses (9) and (9A)” ;

(ii) adding the following as sub-clause (4A)/(9A)

“(4A)/(9A) In the case where the Contract has been terminated or abandoned, the reference to the arbitrator may proceed notwithstanding that the Works shall not then be or be alleged to be complete.”


Special Condition of Contract

To amend the Settlement of Disputes Clause

(Applicable to Term Contracts for Civil Engineering Works and Electrical and Mechanical Engineering Works)

General Conditions of Contract Clause 89 is amended by (i) amending “save as provided for in sub-clause (4)” in sub-clause (3) to

“save as provided for in sub-clauses (4) and (4A)” ; (ii) adding the following as sub-clause (4A)

“(4A) In the case where the Contract has been terminated or abandoned, the reference to the arbitrator may proceed notwithstanding that the Whole of the Works shall not then be or be alleged to be complete.”


Special Condition of Contract

To amend the Settlement of Disputes Clause

(Applicable to Term Contracts for Building Works) General Conditions of Contract Clause 92 is amended by (i) amending “save as provided for in sub-clause (2)” in sub-clause (1) to

“save as provided for in sub-clauses (2) and (2A)” ; (ii) adding the following as sub-clause (2A)

“(2A) In the case where the Contract has been terminated or abandoned, the reference to the arbitrator may proceed notwithstanding that the Whole of the Works shall not then be or be alleged to be complete.”


Appendix A-1

SCC – changes in Law List of Enactments


28 Lands (Miscellaneous Provisions) Ordinance

47 Apprenticeship Ordinance

51 Gas Safety Ordinance

53 Antiquities and Monuments Ordinance

56 Boilers and Pressure Vessels Ordinance

59 Factories and Industrial Undertakings Ordinance

95 Fire Services Ordinance

102 Waterworks Ordinance

115 Immigration Ordinance

121 Buildings Ordinance (Application to the New Territories) Ordinance

123 Buildings Ordinance

127 Foreshore and Sea-bed (Reclamations) Ordinance

147 Sand Ordinance

295 Dangerous Goods Ordinance

311 Air Pollution Control Ordinance

313 Shipping and Port Control Ordinance

317 Industrial Training (Construction Industry) Ordinance

327 Lifts and Escalators (Safety) Ordinance

354 Waste Disposal Ordinance

ETWB TC(W) No. 23/2004 Appendix A-1 Page A1-1 of 2


358 Water Pollution Control Ordinance

360 Pneumoconiosis (Compensation) Ordinance

370 Roads (Works, Use and Compensation) Ordinance

400 Noise Control Ordinance

403 Ozone Layer Protection Ordinance

406 Electricity Ordinance

411 Employees’ Compensation Insurance Levies Ordinance

446 Land Drainage Ordinance

466 Dumping at Sea Ordinance

470 Builders’ Lifts and Tower Working Platforms (Safety) Ordinance

499 Environmental Impact Assessment Ordinance

509 Occupational Safety and Health Ordinance

ETWB TC(W) No. 23/2004 Appendix A-1 Page A1-2 of 2

right of the employer to terminate for convenience and ... · environment, transport and works...

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