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STANDARD
CONTRACT AGREEMENT
AND CONDITIONS OF CONTRACT
2009
ENGINEERING CONSULTANCY SERVICES
PRE CONTRACT ENGINEERING SERVICES
POST CONTRACT ENGINEERING SERVICES
PRE AND POST CONTRACT ENGINEERING SERVICES
Copyright-Ministry of Works SFMinor09
Acknowledgments
The Ministry of Works of the Government of the Kingdom of Bahrain would like to express its
deepest gratitude to the following ministries, directorates, organizations and persons for the help,
assistance and collaboration provided.
Ministry of Works
• H.E. Fahmi Bin Ali Al-Jowder - Minister of Works
• Mrs. Effat Redha Husain - Assistant Undersecretary, Technical Services
(Chairperson; Committee for Updating Conditions of Contracts)
Committee Members:
Mr. Basheer Mohammed Saleh
Mr. Rod Acosta
Mr. Colin Cunningham
Mr. Khalid Salem Bu Hamood
Mr. Saleh Ghuloom Ali
Mrs. Shaheera Mahmood Zainal
Mr. K.K. Gopinathan
Mrs. Nadia A. Aziz
Other Ministries, Directorates & Organizations
Ministry of Finance
Ministry of Housing
Ministry of Health
Ministry of Education
Ministry of Interior
Ministry of State for Defence (BDF)
Tender Board
Bahrain Chamber of Commerce & Industry
Legal Affairs Directorate
Bahrain Society of Engineers
Baker Wilkins & Smith (Middle East) - Chartered Surveyors
Trowers & Hamlins – Solicitors
Various Contracting Organizations in Kingdom of Bahrain
Various Engineering/QS Consultants in Kingdom of Bahrain
And all other organizations/personnel who contributed in the Updating of Conditions of
Contracts.
STANDARD
CONTRACT AGREEMENT
AND CONDITIONS OF CONTRACT
2009
PRE CONTRACT ENGINEERING SERVICES
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CONDITIONS OF CONTRACT
PRE CONTRACT ENGINEERING SERVICES
CONTENTS
FORM OF CONTRACT AGREEMENT 1
CONDITIONS OF CONTRACT
1. Definitions 4
2. Interpretation 6
RESPONSIBILITIES OF THE CONSULTANT ENGINEER
3. Scope of Services 6
4. Duty of Care and Exercise of Authority 7
RESPONSIBILITIES OF THE EMPLOYER
5. Information Supplied by the Employer 8
PERSONNEL
6. Representatives 9
7. Appointment and Replacement of Staff 9
SECURITY
8. Performance Bond 9
COMMENCEMENT, COMPLETION AND TERMINATION
9. Contract Effective 10
10. The Consultant Engineer's Programme 10
11. Further Proposals 10
12. Delays 11
13. Abandonment Suspension or Termination 11
13.1 By Notice of the Employer 11
13.2 By Notice of the Consultant Engineer 12
13.3 Rights and Liabilities 13
13.4 Obligations at Termination 13
THE CONSULTANT ENGINEER'S REMUNERATION
14. Payment to the Consultant Engineer 13
15. Additional Services 14
16. Currency of Payment 14
17. Independent Audit 15
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INSURANCES
18. Indemnity & Insurance 15
18.1 Indemnity 15
18.2 Insurance 15
GENERAL PROVISIONS
19. Law of Contract 16
20. Laws, Notices, Permits and Charges 16
21. Intellectual Property Rights 17
22. Trainees 18
23. Assignment and Subletting 18
24. Confidentiality 18
25. Notices 18
DISPUTES
26.1 Settlement of Disputes 19
26.2 Mediation (if applicable) 19
26.3 Arbitration 20
ANNEX 1 FORM OF PERFORMANCE BOND 22
ANNEX 2 STANDARD FORM OF REQUEST FOR PAYMENT BY DIRECT BANK
TRANSFER 24
THE FIRST SCHEDULE - THE PROJECT 27
THE SECOND SCHEDULE - THE SERVICES 28
THE THIRD SCHEDULE - THE CONSULTANT ENGINEER'S PROGRAMME 32
THE FOURTH SCHEDULE - THE CONSULTANT ENGINEER’S
REMUNERATION 33
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FORM OF CONTRACT AGREEMENT
(PROJECT TITLE)
CONTRACT NUMBER: [ ]
THIS CONTRACT AGREEMENT is made the [ ] day of [ ] 20 [ ]
BETWEEN
1) THE GOVERNMENT OF THE KINGDOM OF BAHRAIN as represented by the
MINISTRY OF WORKS of P.O. Box 5, Bahrain (the
Employer); and
2) [ ] of P.O. BOX [ ] Bahrain,
Commercial Registration Number [ ] (the Consultant Engineer).
WHEREAS the Employer intends to proceed with the development of the project described in
the First Schedule hereto (the Project) and has requested the Consultant Engineer to undertake
and perform the services described in the Second Schedule hereto (the Services) which the
Consultant Engineer has agreed to do for the Remuneration upon and subject to the terms and
conditions set out in the Contract.
NOW IT IS AGREED as follows:
1 In this Contract Agreement words and expressions shall have the same meaning as in
the Conditions of Contract hereinafter referred to.
2 The following documents shall form and be read as the Contract:
a this Contract Agreement
b the Conditions of Contract
c the Letter of Award [Delete if not applicable]
3 In the event of any conflict or discrepancy between any other documents comprising
the Contract and any of the terms of this Contract Agreement the terms of this
Contract Agreement shall prevail.
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4 The following Schedules (the Schedules) shall form part of and shall be read and
construed in conjunction with this Contract Agreement:
a First Schedule - the Project
b Second Schedule - the Services
c Third Schedule - the Consultant Engineer's Programme
d Fourth Schedule - the Consultant Engineer's Remuneration
5 Notwithstanding any of the terms set out in this Contract Agreement the Schedules
shall have full effect as terms of this Contract Agreement and in the case of any
conflict or discrepancy between any of the Schedules and any of the terms of this
Contract the Schedules shall prevail.
6 The Employer hereby appoints the Consultant Engineer and agrees to pay the
Consultant Engineer the Remuneration for the provision and execution of the
Services or such other sums as may become due under the Contract.
7 In consideration of the Remuneration to be paid by the Employer to the Consultant
Engineer, the Consultant Engineer hereby covenants with the Employer to provide,
execute, and complete the Services in all respects with the provisions of this
Contract.
8 The Consultant Engineer hereby warrants to the Employer:
a that he will comply with the Laws or where these are not available the
appropriate international standards duly approved by the Employer (including,
where appropriate, COEPP).
b that in the case of breach by the Consultant Engineer of this undertaking the
Employer shall have the right to terminate the Contract without prejudice to
any other remedies available to the Employer under this Contract Agreement,
and
c that the performance of the Services will conform strictly to the standards laid
down in the Contract and if no such standards are laid down to the best
accepted international standards of current professional practice.
9 The amount of third party insurance cover required under Clause 18.2a of the
Conditions of Contract shall be not less than Bahrain Dinars [ ] (BD [ ]) for any one
incident with the number of incidents unlimited and the amount of professional
indemnity insurance required under Clause 18.2b of the Conditions of Contract shall
be not less than Bahrain Dinars [ ] (BD [ ]) for any one claim, with the number of
claims unlimited.
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10 Clause 26.2 of the Conditions of Contract shall apply and any dispute or difference
may be referred by either party to mediation by a mediator to be appointed by [
] who shall conduct the mediation in accordance with Clause 26.2. [Delete if not
applicable]
11 Clause 8 of the Conditions of Contract shall apply and the Consultant Engineer is
required to provide a Performance Bond for [ ]/Clause 8 shall not apply.
[Delete as applicable]
12 Pursuant to Clause 14.4 the rate of interest on overdue payments shall be [ ] per cent
([ ]%) per annum.
IN WITNESS whereof the authorised representatives of the Employer and the Consultant
Engineer have signed this Contract Agreement on the date stated at the beginning of this
Contract Agreement.
SIGNED for and on behalf of
THE KINGDOM OF BAHRAIN
MINISTRY OF WORKS
in the presence of:
SIGNED for and on behalf of
The Consultant Engineer
in the presence of:
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CONDITIONS OF CONTRACT
1 Definitions
1.1 The following words and expressions shall have the meanings assigned to them
except where the context otherwise requires:
Additional Services means Services requested by the Employer that are in addition
to those described in the Second Schedule hereto and as referred to in Clause 15
hereof.
approved means approved in writing and approval means approval in writing.
Authority means any duly constituted authority in Bahrain.
Bahrain means the Kingdom of Bahrain.
Building Contract means the contract entered into between the Employer and the
Contractor(s).
COEPP means the Bahrain Committee for Organising Engineering Professional
Practice.
Conditions of Contracts means these conditions of contract.
Contract means the Contract Agreement, the Conditions of Contract and the
Schedules attached to the Conditions of Contract.
Contractor means a person or company appointed by the Employer to execute the
Works (including the goods and equipment to be supplied by the Employer) for the
achievement of the Project and so notified to the Consultant Engineer.
Consultant Engineer means the party named in this Contract, who is employed as
an independent professional firm by the Employer to perform the Services and legal
successors to the Consultant Engineer and permitted assignees.
day means the twenty-four (24) hour period between any one midnight and the next.
Employer means the party named in this Contract who employs the Consultant
Engineer and legal successors in title to the Employer and permitted assignees.
Intellectual Property Rights means all intellectual property rights (including
without limitation patents, trademarks, designs, design rights, copyright, inventions,
trade secrets, know-how and confidential information) and all applications for
protection of any of the same.
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Laws mean all laws applicable to the Contract and the Works including all 'Statutes',
'Decrees', 'Orders', 'Ordinances', 'Regulations' and 'Bye-laws' of any duly constituted
authority in force from time to time in Bahrain.
month means a period of one month according to the Gregorian calendar
commencing with any day of the month.
National Standard means those current professional standards applicable to the
Consultant Engineer's profession in Bahrain.
party and parties means the Employer and the Consultant Engineer and third party
means any other person or entity as the context requires.
Performance Bond means a performance bond as referred to in Clause 8 and in the
form set out in Annex 1 to the Conditions of Contract
Project means the project named in the First Schedule
Quantity Surveyor means the quantity surveyor appointed by the Employer in
relation to the Project and notified to the Consultant Engineer.
Remuneration means the remuneration to be paid by the Employer to the Consultant
Engineer further to the Fourth Schedule or such other sums as may become due under
the Contract.
Request for Payment by Bank Transfer means a request as referred to in Clause
14.3 and in the form set out in Annex 2 to the Conditions of Contract.
Representative means an official directly employed by either party to administer the
Contract as notified to the other party.
Services means the services to be performed by the Consultant Engineer stated in the
Second Schedule
Value Engineering means a structured system for the review of the design, supply
and construction process to identify options and scope for improvement, including
reduced capital and/or whole-life costs, improved buildability and improved
functionality.
Working Day means Sunday to Thursday inclusive but not including any public
holiday recognised in Bahrain.
Works means the permanent works to be executed (including the goods and
equipment to be supplied by the Employer) for the achievement of the Project.
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2 Interpretation
2.1 The headings in these Conditions of Contract shall not be taken into consideration in
the interpretation of the Contract.
2.2 Words used in the singular shall have the same meaning in the plural and vice versa.
2.3 The Contract is to be construed and interpreted in the English language. All
references to dates or periods of time shall be construed in accordance with the
Gregorian calendar.
2.4 References in these Conditions of Contract to Clauses and Schedules shall, unless
otherwise stated, be treated as references respectively to Clauses in and Schedules
annexed to these Conditions of Contract.
2.5 The Contract supersedes all prior contracts, agreements and understandings between
the parties and no change termination or attempted waiver of any of the provisions
hereof shall be binding unless in writing and signed by the party against whom the
same is to be enforced. By entering into the Contract the Consultant Engineer is
deemed to have waived its general terms and/or conditions of business (if any).
2.6 Whenever the date for the performance of any term, condition, obligation, covenant,
agreement or provision required or provided under the Contract falls on a date that is
not a Working Day, such date shall be extended to the next succeeding Working Day.
RESPONSIBILITIES OF THE CONSULTANT ENGINEER
3 Scope of Services
3.1 The Consultant Engineer shall perform the Services in such a way that they:
a Achieve the purpose to be served by the Project in the most practical and
economical manner.
b Accord with good professional and current practice and take into account the
particular conditions prevailing in Bahrain.
c Adopt only such changes as have been previously approved in writing by the
Employer.
d Adhere to the standard contract documents generally used by the Employer.
e Use the metric system and the English language throughout the performance
of the Services unless otherwise instructed by the Employer.
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3.2 The Consultant Engineer shall be responsible for the correctness and soundness of all
documents and drawings prepared by him in connection with the Project. Neither the
approval by the Employer of such documents and drawings nor the failure of the
Employer to discern any defect in or omission from such documents and drawings
shall absolve or relieve the Consultant Engineer of any of his design responsibilities
or other duties and obligations under this Contract.
All such documents and drawings shall be the property of the Employer and shall not
be shown, given or related by the Consultant Engineer to any third party without the
prior written approval of the Employer.
3.3 The Consultant Engineer shall report to the Employer without delay any arising need
for information, investigation or analysis in connection with the Project.
3.4 The Consultant Engineer is obliged to cooperate fully with all other consultants and
experts engaged by the Employer in connection with the Project.
3.5 The Consultant Engineer is obliged to follow all the Employer’s instructions in
relation to the Project but shall inform the Employer immediately in writing if it feels
that any such instruction is contradictory to the efficient execution and completion of
the Project.
4 Duty of Care and Exercise of Authority
4.1 The Consultant Engineer shall exercise all reasonable skill, care and diligence in the
performance of his obligations under this Contract.
4.2 The Consultant Engineer acknowledges that the Employer shall be deemed to have
relied on the Consultant Engineer’s professional skill and judgement in respect of
those matters relating to the Project which lie within the scope of the Consultant
Engineer’s responsibilities hereunder and that accordingly the Consultant Engineer
owes to the Employer a professional duty of care.
4.3 The Consultant Engineer shall perform the Services in such manner and at such times
that no negligent or intentional act, omission or default by the Consultant Engineer in
relation to the Services shall constitute, cause or contribute to any breach by the
Employer of any of the Employer’s obligations in respect of the Project of which the
Consultant Engineer is aware.
4.4 Where the Services include the exercise of powers or performance of duties
authorised or required by the terms of a contract between the Employer and any third
party, the Consultant Engineer shall:
a Act in accordance with the contract provided that the details of such powers
and duties are acceptable to him where they are not described in the Second
Schedule.
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b If authorised to certify, decide or exercise discretion, do so fairly between the
Employer and the third party, not as an arbitrator but in accordance with the
skill and judgement expected from an independent professional advisor.
c If so authorised vary the obligations of any third party, subject to obtaining
the prior approval of the Employer to any variation which can have an
important effect on costs or quality or time (except in any emergency when
the Consultant Engineer shall inform the Employer as soon as practicable).
4.5 The Consultant Engineer shall not accept any trade commission, discount, allowance,
indirect payment or other consideration from any third party in connection with the
Project.
4.6 The Consultant Engineer shall not have the benefit whether directly or indirectly of
any royalty, gratuity or commission in respect of any patented or protected article or
process used on or for the purposes of the Project.
4.7 Subject as hereinafter mentioned the Consultant Engineer shall not specify any
particular trade or proprietary name in any documents or drawings prepared by him
in the course of the performance of the Services. In cases where in order to identify
the type and/or quality of any article or process the use of a trade or proprietary name
is unavoidable the Consultant Engineer shall nominate at least one such name and
shall add the words “or approved equivalent”. The prior approval of the Employer
shall be obtained to such nomination of a trade or proprietary name.
RESPONSIBILITIES OF THE EMPLOYER
5 Information Supplied by the Employer
5.1 The Employer shall supply the Consultant Engineer in such time as may be
reasonable with the information and data in the Employer's possession as is relevant
to the Services and this Contract. Further to supplying this information and data the
Employer is under no obligation to secure information and data from other sources.
5.2 On all matters properly referred to him in writing by the Consultant Engineer the
Employer shall within a reasonable period of time, give his decision in writing so as
not to delay the Services.
5.3 The Employer shall not give an instruction to the Consultant Engineer which would
require him to act in a way that is outside his professional code of conduct.
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PERSONNEL
6 Representatives
6.1 For the administration of this Contract each party shall designate an official or
individual to be his Representative.
7 Appointment and Replacement of Staff
7.1 The Services shall be performed by skilled, experienced and qualified members of
the Consultant Engineer’s staff who shall have the required permits and licences
issued by the appropriate Authority to work in Bahrain.
7.2 The Consultant Engineer shall submit for the approval of the Employer a complete
résumé of the training, qualifications and experience of each professional member of
the Consultant Engineer’s staff prior to his appointment in connection with the
Services. The Employer’s approval shall not unreasonably be withheld but shall not
relieve the Consultant Engineer of any of his duties and obligations under this
Contract. Following the Employer’s approval no change shall be made in the
Consultant Engineer’s professional staff without the Employer’s further approval,
which shall be duly requested by the Consultant Engineer at least thirty (30) days in
advance of any proposed change unless in the event of an emergency the Employer
shall accept a shorter period of notice.
7.3 Should the Employer for any reason whatsoever be of the opinion that any member
of the staff appointed by the Consultant Engineer is unsatisfactory, the Consultant
Engineer will upon receipt of written instructions from the Employer immediately
terminate the assignment of such person and make arrangements for a suitable
replacement within thirty (30) days, without in any way interrupting the performance
of the Services during this time.
7.4 Should the Consultant Engineer fail to comply with the Employer’s written
instructions, the Employer reserves the right to withhold payment in respect of the
proportion of the Remuneration that the Employer in his discretion deems attributable
to the unsatisfactory member of staff.
SECURITY
8 Performance Bond
8.1 If Article 11 of the Contract Agreement provides for the Consultant Engineer to
obtain and provide a Performance Bond, then the Consultant Engineer shall have
obtained and provided to the Employer prior to the date of the Contract Agreement
such Performance Bond in the sum stated in the Contract Agreement and
substantially in the form set out in Annex 1.
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8.2 If the Consultant Engineer shall fail to comply with Clause 8.1, the Employer shall be
entitled to treat the Contract as repudiated by the Consultant Engineer and upon such
repudiation to recover all loss, cost and expense occasioned by such repudiation.
COMMENCEMENT, COMPLETION AND TERMINATION
9 Contract Effective
9.1 This Contract is effective from the date of the latest signature necessary to complete
this Contract and shall govern the Services performed prior to that date.
10 The Consultant Engineer's Programme
10.1 The Services shall be performed in accordance with the Consultant Engineer’s
programme set out in the Third Schedule hereto (the Consultant Engineer’s
Programme) subject to extensions in accordance with this Contract.
10.2 Completion of each stage of the Services shall be deemed to occur upon receipt by
the Consultant Engineer of the approval thereof from the Employer.
10.3 If the Consultant Engineer at any time has reason to believe that the Time for
Completion of the Building Contract or the Consultant Engineer's Programme will be
delayed, the Consultant Engineer shall promptly notify the Employer of the fact, of
the expected period of delay, of the cause of the delay and the steps proposed by the
Consultant Engineer to minimise the delay.
10.4 Subject to any extension of time granted by the Employer in writing to the Consultant
Engineer, if the Consultant Engineer fails to complete any stage of the Services
within the period specified in the Consultant Engineer's Programme, then it should be
liable to pay to the Employer a sum of Bahrain Dinars equivalent to 1% of the
Remuneration of the relevant stage of the Services for each week of delay up to a
maximum of 5% of the Remuneration, being the penalty for delay. The penalty for
delay may be deducted by the Employer from the Consultant Engineer's
Remuneration but shall not relieve the Consultant Engineer from any of its
responsibilities and obligations under this Agreement.
11 Further Proposals
11.1 If requested by the Employer in writing, the Consultant Engineer shall submit
proposals for altering the Services.
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12 Delays
12.1 If the Consultant Engineer considers the Services are impeded or delayed by the
Employer or any third party so as to increase the amount or duration of the Services,
the Consultant Engineer shall give immediate notice to the Employer of the
circumstances of such impediment/delay together with the additional Services
required, additional time for completion and associated costs.
12.2 In the event that such notice as described in 12.1 is issued by the Consultant Engineer
the Employer shall review the contents of the notice and confirm his acceptance in
full or in part, which shall not be unreasonably withheld. If approved by the
Employer, the increase shall be regarded as Additional Services and the time for
completion of the Services shall be increased accordingly. If rejected by the
Employer and the parties cannot reach agreement within seven (7) days of the
Employer notifying the Consultant Engineer of his rejection, the matter shall be
determined in accordance with Clause 26.
13 Abandonment Suspension or Termination
13.1 By Notice of the Employer
a The Employer may suspend all or part of the Services or terminate this
Contract by notice of at least thirty (30) days to the Consultant Engineer who
shall immediately make arrangements to stop the Services and minimise
expenditure.
b If the Employer considers that the Consultant Engineer is without good reason
not discharging his obligations he can inform the Consultant Engineer by
notice stating the grounds for the notice. If a satisfactory reply is not received
within fourteen (14) days the Employer can by a further notice terminate the
appointment of the Consultant Engineer under this Contract with immediate
effect.
c In the event that the whole or any part of the Project shall be postponed or
abandoned by the Employer, then the payment to be made to the Consultant
Engineer for the Services performed in respect of that part of the Project so
postponed or abandoned shall be calculated on the basis of the Remuneration
according to the proportion of the Services which has been wholly or partially
performed by the Consultant Engineer at such time. If the Project is finally
abandoned, then such payment shall be accepted by the Consultant Engineer
in full and final settlement of his entitlement to the Remuneration.
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d If within one (1) year of its postponement the Employer shall wish to resume
the development of the postponed whole or part of the Project then any
payments made to the Consultant Engineer pursuant to this Clause shall rank
as payments on account and the Consultant Engineer shall be obliged to
resume the performance of the Services in accordance with the Contract and
the Employer shall pay the Consultant Engineer's Remuneration in accordance
with Schedule 4.
e If in the second year of its postponement the Employer shall wish to resume
the development of the postponed whole or part of the Project then any
payments made to the Consultant Engineer pursuant to this Clause shall rank
as payments on account and the Consultant Engineer shall be obliged to
resume the performance of the Services in accordance with the Contract and
the Consultant Engineer's Remuneration shall be revised by the parties
(subject to both party's approval). In the event that the Project or any part
thereof shall be postponed for a period longer than two (2) years then the
Contract or such part thereof shall, immediately on service of notice by the
Employer, be considered to have been abandoned.
13.2 By Notice of the Consultant Engineer
a After giving at least thirty (30) days notice to the Employer, the Consultant
Engineer can by a further notice of fourteen (14) days terminate this Contract,
or at his discretion without prejudice to the right to terminate, can suspend or
continue suspension of performance of the whole or part of the Services
i when twenty-eight (28) days after the due date for payment in accordance
with Clause 14.1 of this Contract, of an invoice it has not received payment of
that part of it which has not, by that time, been contested in writing by the
Employer
ii when Services have been suspended under Clause 13.1 and the period of
suspension has exceeded one (1) year.
iii if circumstances arise beyond the control of the Consultant Engineer which
the Consultant Engineer could not reasonably have foreseen and which make
it impossible for it to perform in whole or in part the Services in accordance
with this Contract
b provided that should the Employer’s default be remedied within such notice
period then this Contract shall automatically remain in full force and effect.
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13.3 Rights and Liabilities
a If this Contract is terminated by either of the parties hereto in accordance with
the provisions of Clauses 13.1 and 13.2 above then the Employer shall have
the right to receive and use the originals of all documents and drawings
prepared by the Consultant Engineer prior to the date of such termination
providing the Consultant Engineer has received the Remuneration due to him
pursuant to Clause 13.1 c above.
b Termination of this Contract shall not prejudice or affect the accrued rights or
claims and liabilities of the parties.
13.4 Obligations at Termination
In the event that the Employer has appointed another consultant to complete the
Services following termination of the Consultant Engineer’s appointment under this
Contract by either party the Consultant Engineer shall:
a co-operate fully with such consultant for the orderly transfer of the Services;
and
b deliver to the Employer within two (2) weeks from the date of notice issued
by the Employer confirming that another consultant has been appointed all
documents and other work prepared by the Consultant Engineer pursuant to
this Contract.
If the Consultant Engineer does not comply with its obligations under this Clause
13.4 the Employer shall be entitled to withhold any monies owed to the Consultant
Engineer under this Contract.
THE CONSULTANT ENGINEER’S REMUNERATION
14 Payment to the Consultant Engineer
14.1 In consideration of the due and diligent performance of the Services by the
Consultant Engineer in accordance with the Contract the Employer shall pay to the
Consultant Engineer the Remuneration in accordance with the provisions of the
Fourth Schedule and within forty-two (42) days from the presentation to the
Employer by the Consultant Engineer of itemised invoices in the amount agreed by
the Employer and the Consultant Engineer (the due date).
14.2 All costs, penalties, damages or expenses for which under this Contract the
Consultant Engineer is liable to the Employer may be deducted by the Employer
from any monies due or becoming due to the Consultant Engineer under this Contract
or may be recovered by action at law or otherwise from the Consultant Engineer.
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14.3 If the Consultant Engineer wishes payment of any monies due under this Contract to
be made to his bank then it shall arrange for its bank to complete and shall then itself
complete and deliver to the Employer a Form of Request for Payment by Bank
Transfer in the form set out in Annex 2. Any such payment by the Employer to the
Consultant Engineer’s bank shall be subject to and on the basis of the conditions and
provisions set forth in the Form of Request for Payment by Bank Transfer.
14.4 In the event of failure by the Employer to make payment in accordance with Clauses
14.1, 14.2 and 14.3, the Employer shall pay to the Consultant Engineer interest upon
any overdue payment at the rate stated in Article 12 of the Contract Agreement from
the latest date when the payment should have been made.
15 Additional Services
15.1 The Employer may at any time require the performance by the Consultant Engineer
of Additional Services in relation to the Project, which additional services the
Consultant Engineer shall duly perform in consideration of appropriate additional
remuneration to be mutually agreed in writing in advance between the parties hereto.
15.2 The above Additional Services shall not include the correction or re-execution of all
or any part of any stage of the Services in the event that such correction or re-
execution is required by the Employer as a result of the action, inaction, default or
negligence of the Consultant Engineer or any member of his staff.
15.3 In the event that after the completion of any stage of the Services the Employer shall
require the complete or partial modification of any aspect of the Services by virtue of
a revision of the design brief or of the Employer’s requirements in relation to the
Project then such modification shall constitute Additional Services and shall attract
additional remuneration as shall be mutually agreed in writing in advance between
the parties hereto.
15.4 In the event that the whole or any part of the Project shall be damaged or destroyed
before its completion then provided such damage or destruction is not attributable to
the action, inaction, default or negligence of the Consultant Engineer or any member
of his staff, any Additional Services required by the Employer to be performed by the
Consultant Engineer as a result of such damage or destruction shall attract such
additional remuneration as shall be mutually agreed in writing in advance between
the parties hereto.
16 Currency of Payment
The currency applicable to this Contract is Bahrain Dinars, unless otherwise agreed
between the parties.
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17 Independent Audit
17.1 Except where this Contract provides for lump sum payments, the Consultant
Engineer shall maintain up-to-date records which clearly identify relevant time and
expense.
17.2 Except where this Contract provides for lump sum payments, not later than twelve
(12) months after the completion of the Services, the Employer can at notice of not
less than seven (7) days require that a reputable firm of accountants nominated by
him audit any amount claimed by the Consultant Engineer by attending during
normal working hours at the office where the records are maintained.
INSURANCES
18 Indemnity and Insurance
18.1 Indemnity
The Consultant Engineer shall be liable for and shall indemnify the Employer against
any expense, liability, loss, claim or proceedings whatsoever in respect of death or
personal injury to any person or material or physical loss of or damage to any
property whatsoever which may arise out of or in consequence of the performance of
the Contract unless due to any act or neglect of the Employer or of any person for
whom the Employer is responsible.
18.2 Insurance
a Third Party Insurance
Without prejudice to its liability to indemnify the Employer under Clause 18.1
the Consultant Engineer shall on or before the date of Contract in the joint
names of the Employer and the Consultant Engineer take out insurances for at
least the amount stated in Article 9 of the Contract Agreement against its
liability for any death of or injury to any person (including any employee of
the Employer) or any damage or loss to any property (including any property
of the Employer) caused by or arising out of or in consequence of the
execution of the Contract and as are necessary to cover the liability of the
Consultant Engineer under Clause 18.1. Such insurance shall include cross
liability clauses indemnifying each of the jointly insured against claims made
on it by the other.
b Professional Indemnity Insurance
The Consultant Engineer shall take out and maintain professional indemnity
insurance, without unusual or onerous conditions attached to it, in the amount
stated in Article 9 for any one claim with the number of claims unlimited,
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commencing no later than the date of the Contract Agreement and ending ten
(10) years after the date the last of the Services was completed.
c Recognised Insurers
The insurance policies required under Clause 18 shall be taken out with one of
the insurance companies for the time being recognised by the Employer in
terms approved by the Employer, which approval shall not be unreasonably
withheld and the Consultant Engineer shall ensure the continued adequacy of
the insurances at all times in accordance with the terms of the Contract.
d Insurance Policies
As and when required so to do by the Employer the Consultant Engineer shall
produce for inspection the insurance policies required under Clause 18 and the
receipts for payment of the current premiums and in default of the Consultant
Engineer so insuring or continuing to insure as required the Employer may
itself insure against any risk with respect to which the default shall have
occurred and may deduct a sum or sums equivalent to the amount paid or
payable in respect of such premiums from any monies due or to become due
to the Consultant Engineer, or recover the same as a debt due from the
Consultant Engineer. The Employer reserves the right to suspend all or part of
the Services by immediate notice to the Consultant Engineer until the
Consultant Engineer takes out such insurances. Any costs Incurred by the
Employer as a result of such suspension shall be borne by the Consultant
Engineer and such suspension shall not entitle the Consultant Engineer to an
extension of the Consultant Engineer's Programme or any additional
Remuneration.
18.3 The above insurance policies shall in no way limit the liability of the Consultant
Engineer under this Contract.
GENERAL PROVISIONS
19 Law of Contract
This Contract is made in Bahrain and is subject to the laws of Bahrain.
20 Laws, Notices, Permits and Charges
The Consultant Engineer shall give all notices and shall obtain all visas, licences and
permits as may be required by the relevant Laws and shall pay all appropriate charges
and fees therefore and shall pay all such custom duties, levies and taxes as may be
required by Law and shall keep the Employer indemnified against all penalties and
liability of every kind for breach of any such Laws.
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21 Intellectual Property Rights
21.1 The Consultant Engineer warrants to the Employer that no design or document that it
prepares and nothing else that it contributes to the Works shall infringe any
Intellectual Property Rights, and undertakes to indemnify the Employer in respect of
any legal liability and related costs arising out of or in connection with any such
infringement of any Intellectual Property Rights.
21.2 The Consultant Engineer shall retain Intellectual Property Rights in all documents
that it prepares in relation to the Works, and as beneficial owner grants to the
Employer an irrevocable non-exclusive royalty-free licence to copy and use all such
designs and documents for any purpose relating to completion and use of the Works,
in all cases with the right to transfer and sub-licence such rights for the same
purposes, and shall ensure that such licence shall have the support of such rights from
third parties as are necessary to allow the grant of such licence.
21.3 The Consultant Engineer shall not be liable for the use of any document that it
prepares for any purpose other than for which it was agreed to be prepared as stated
in, or reasonably inferred from, the Contract.
21.4 Subject to the Intellectual Property Rights described in Clause 21.2, ownership in all
the existing documents and other physical embodiments of designs relating to the
Works shall transfer from the Consultant Engineer to the Employer immediately prior
to the Consultant Engineer suffering an event of termination of his employment as
described in Clause 13. In such circumstances, the Consultant Engineer shall hand
over all such documents and designs to the Employer immediately upon request.
21.5 In the event of any claim being made or action being brought against the Employer
arising out of the matters referred to in this Clause 21 the Consultant Engineer shall
be promptly notified thereof and may at his own expense conduct all negotiation for
the settlement of the same and any litigation that may arise therefrom. The Employer
shall not unless and until the Consultant Engineer shall have failed to take over the
conduct of the negotiations or litigation make any admission which might be
prejudicial upon the Consultant Engineer having first given to the Employer such
reasonable security as shall from time to time be required by the Employer to cover
the amount ascertained or agreed or estimated as the case may be of any
compensation, damages, expenses and costs for which the Employer may become
liable in respect of such infringement as aforesaid. The Employer shall, at the request
of the Consultant Engineer, afford all available assistance for the purpose of
contesting any such claim or action and shall be repaid any expenses incurred in so
doing.
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22 Trainees
The Employer reserves the right during any stage of the Services to appoint any
reasonable number of suitably qualified trainees to be trained by the Consultant
Engineer. All salaries and costs in respect of such trainees shall be borne by the
Employer and the Consultant Engineer shall be reimbursed net, upon production of
invoices, any direct additional costs arising provided that any such costs shall be
approved in advance by the Employer.
23 Assignment and Subletting
23.1 The Consultant Engineer shall not, without the prior consent of the Employer, assign
or transfer the benefit or duties of this Contract or any part thereof provided that it
shall be lawful for the Consultant Engineer at any time to take into partnership
another partner or partners whereupon it or they or the survivors of them shall
thenceforth automatically be deemed to be included in the expression “the Consultant
Engineer” for all the purposes of this Contract.
23.2 Notwithstanding the provisions of Clause 23.1 above the Consultant Engineer may
subject to the prior approval of the Employer sub-let to a specialist sub-consultant
any part of the Services which is customary or of necessity and because of its nature
required to be performed by such a specialist sub-consultant. The provisions of
Clause 23.1 shall apply to the staff of any approved specialist sub-consultant but the
Employer’s approval of any specialist sub-consultant or any member of the staff of
such specialist sub-consultant shall in no way relieve the Consultant Engineer of any
of its duties and obligations under this Contract.
24 Confidentiality
The Consultant Engineer shall not, except where strictly necessary for the purposes
of the Contract, during or after the expiry of this Contract disclose or suffer any
employee of the Consultant Engineer to disclose to any person whatsoever any
information of which the Consultant Engineer or any such employee has or shall
hereafter become possessed by virtue of this Contract. The Consultant Engineer shall
keep with inviolable secrecy any document or drawings supplied by the Employer
pursuant to this Contract and shall not use the same except in the performance of the
Services.
25 Notices
25.1 Any notice to be given under the terms of this Contract shall be properly served by
sending the same by registered mail or fax to the following respective addresses and
fax numbers of the parties hereto:
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The Employer:
Attn:
Fax.
The Consultant Engineer:
Attn:
Fax.
25.2 The parties hereto shall promptly notify one another of any change of address or fax
number.
DISPUTES
26.1 Settlement of Disputes
If any dispute or difference of any kind whatsoever shall arise between the Employer
and the Consultant Engineer in connection with or arising out of the Contract
(whether during the progress of the Contract or after its completion and whether
before or after any determination abandonment or breach of the Contract) both parties
shall endeavour to amicably resolve the dispute. Unless the Contract shall have
already been determined or abandoned the parties shall in every case continue to
proceed with the Services unless and until the same shall be referred to Mediation
pursuant to Clause 26.2 (if stated in Article 10 of the Contract Agreement to apply)
or an Arbitration Committee as appointed in accordance with Clause 26.3.
26.2 Mediation (if applicable)
If this Clause 26.2 is stated to be applicable in Article 10 of the Contract Agreement
and if the parties are unable to reach agreement on any matter then the matter shall
immediately be referred by the parties to a neutral mediator (the Mediator) whose
costs shall be paid in equal shares by the parties and the following clauses shall
apply:
a if the parties are unable to agree on the choice of a Mediator, or if the chosen
Mediator is unable or unwilling to act, then either party may immediately
apply to the organisation stated in Article 10 of the Contract Agreement, to
appoint a Mediator;
b the parties shall, within fourteen (14) days of the appointment of a Mediator,
or any other such period as the parties may subsequently agree, jointly meet
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with it to agree a programme for the exchange of any relevant information and
the structure to be adopted for the negotiations;
c all negotiations shall be conducted in confidence and are not to be referred to
in any concurrent or subsequent proceedings, unless they conclude with a
written legally binding agreement. If the parties accept the Mediator's
recommendations, or otherwise reach agreement on the resolution of the
dispute, such agreement shall be recorded in writing and, once signed by the
designated representatives, shall be binding on the parties;
d if no agreement is reached, either party may invite the Mediator to provide to
both parties a non-binding opinion in writing. Such opinion shall not be used
in evidence in any concurrent or subsequent proceeding without the prior
written consent of both parties;
e the parties shall bear their own costs of preparing and submitting evidence to
the Mediator. If the Mediator finds that the mediation has been initiated or
conducted frivolously or vexatiously, then it shall have the power to order the
party so initiating or conducting the mediation to pay the reasonable costs of
the other party for preparing for and attending the mediations and if the costs
cannot be agreed, they shall be assessed by the Mediator, whose decision shall
be binding on the parties; and
f if the parties fail to reach agreement within twenty-eight (28) days of the
Mediator being appointed, or such other period as the parties may agree, then
both parties shall be entitled to submit the dispute to arbitration under the
terms of Clause 26.3. With the agreement of the parties, the Mediator shall
record those facts that the parties have agreed. All other matters in dispute
shall be referred to an Arbitration Committee who shall be allowed access to
the recorded and agreed facts. The Mediator's role shall cease on the
appointment of the Arbitration Committee. The Mediator shall not be
available to appear as a witness in the arbitration, or to provide any additional
evidence obtained during the mediation.
26.3 Arbitration
If either the Employer or the Consultant Engineer is dissatisfied with the process of
resolving the dispute amicably and the option of Mediation as defined in Clause 26.2
is not applicable, (if stated in Article 10 of the Contract Agreement to be not
applicable) then either the Employer or the Consultant Engineer may require that the
matter be referred to the arbitration of an arbitration committee (the Arbitration
Committee) to be formed of three (3) members in the following manner: the
Employer and the Consultant Engineer shall each appoint one member thereto: if one
party fails so to appoint within fifteen (15) days of being requested by the other party
so to do, H.E. Minister of Justice of the Kingdom of Bahrain (upon a written request
Copyright-Ministry of Works ConsultEngPre09 21
from the party who has so appointed a member) shall appoint a member for the party
who has so failed to appoint. The third member, who shall be the Chairman of the
Arbitration Committee, shall be appointed reasonably promptly by agreement
between the other two members; if such agreement is not reached within fifteen (15)
days after their appointment, the said H.E. Minister of Justice of the Kingdom of
Bahrain shall appoint the third member upon the request of either party.
In any arbitration:
a the award of the Arbitration Committee shall be reached if not unanimously
by a majority of the Arbitration Committee;
b the award of the Arbitration Committee shall be final and binding on the
parties;
c the costs of the arbitration shall be within the discretion of the Arbitration
Committee; and
d such arbitration shall take place in Bahrain and shall be conducted in the
English Language.
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ANNEX 1
TO CONDITIONS OF CONTRACT
FORM OF PERFORMANCE BOND
(see Clause 8 of the Conditions of Contract)
To be engrossed on Insurance Company / Bank headed paper and addressed to the Employer.
No terms shall be deleted from this Performance Bond nor shall any terms be added
Bank ref: Dated:
Dear Sirs,
Performance Bond number:
Project:
Consultant Engineer:
Date of Contract:
In consideration of you, [ ] (the Employer) having agreed to enter into the
above contract (the Contract) with [ ] (the Consultant Engineer), we, the [
] Insurance Company / Bank of [ ] irrevocably and unconditionally guarantee
to the Employer subject to the terms below, that the Consultant Engineer shall perform and
fulfil all undertakings, covenants, terms and conditions of the Contract for [ ] (the Services)
and any extensions of the Contract, and that the Consultant Engineer shall perform and fulfil all
the undertakings, covenants, terms and conditions of the Contract and all changes,
modifications, additions or amendments to the Contract that may be made, and that the
Consultant Engineer shall also fully indemnify, defend and hold harmless the Employer from
all costs, liability and damage which the Employer may suffer by reason of the failure of the
Consultant Engineer so to do.
In the event that the Employer, in its absolute discretion, gives written notice to us at any time
of the failure of the Consultant Engineer to perform or fulfil any of the acts or obligations set
out in the above paragraph, we unconditionally and irrevocably undertake, without any right of
set off or counterclaim whether on our behalf or on behalf of the Consultant Engineer, to pay to
the Employer the sum of BD[ ] ([ ]) being an amount equal to [ ] per cent ([
Copyright-Ministry of Works ConsultEngPre09 23
]%) of the price recorded in the Contract. Such written notice of the Employer shall
be conclusively binding on us for all purposes under this Performance Bond.
We further agree that any change, modification, addition or amendment which may be made to
the terms and conditions of the Contract, or to the Services to be performed pursuant to the
Contract, or to the payments to be made on account pursuant to the Contract, or any extension
of the time of performance of the Services or any settlement, promise not to sue or other action
on the part of either the Employer or the Consultant Engineer to the other shall not in any way
release us from our continuing liability under this Performance Bond, and we expressly waive
our right to consent to or to receive notice of any such change, modification, addition,
amendment, extension, settlement, promise or action.
This Performance Bond shall be valid until the [ ] day of [ ] 20[ ].
This Performance Bond shall be governed by and interpreted under the Laws of the Kingdom of
Bahrain. It shall be returned to us on its expiry.
SIGNED
(as appropriate by properly authorised officials for and on behalf of the guaranteeing
Bank / Insurance Company)
To:
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ANNEX 2
TO CONDITIONS OF CONTRACT
STANDARD FORM OF
REQUEST FOR PAYMENT BY DIRECT BANK TRANSFER
To be engrossed on Consultant Engineer’s headed paper and addressed to the Employer.
No terms shall be deleted from this Request nor shall any terms be added
To: The Employer
Re: Project name:
Contract no:
Consultant Engineer:
Dear Sirs,
We refer to the Contract dated [ ] for [ ]
(the Contract) between you (the Employer) and us (the Consultant Engineer). We have made
no previous request to you regarding the method of payment of monies falling due under the
Contract (the Contract Proceeds).
We hereby request and authorise you to pay as from the date of this Request the Contract
Proceeds into our Account No.[ ] with [ ] (the Bank).
In submitting this authority and Request it is hereby agreed as follows:
a the receipt of the Bank shall constitute a complete discharge in favour of the
Employer of all payments so made;
b the Consultant Engineer undertakes to raise no claim in respect of and to accept
liability for and to indemnify and hold harmless the Employer from any and all
claims made by third parties including the Bank and from any and all costs and losses
arising in connection with:
i the making by the Employer of any payments of the Contract Proceeds to
the Bank pursuant to this authority and Request;
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ii the failure of the Employer howsoever caused to commence, continue or
cease making any payments of the Contract Proceeds to the Bank pursuant
to this authority and Request provided that in such case payment is
otherwise made as required by law or order of the Courts of the Kingdom
of Bahrain.
c This authority and Request neither is nor constitutes notice of and assignment of the
Contract Proceeds in favour of the Bank.
d Contract Proceeds shall mean those sums which are due to the Consultant Engineer
under the Contract between the Employer and the Consultant Engineer and which
sums are subject to any deductions or set off made by the Employer in accordance
with the provisions of the Contract.
e This authority and Request cannot be varied or cancelled without the prior written
consent of the Bank.
Yours faithfully,
CONSULTANT ENGINEER:
Signature:
1. We hereby confirm our understanding and unqualified acceptance of the terms of this
letter and agree that neither this letter nor any payment made pursuant to this letter
shall create any contractual or fiduciary relationship between the Employer and the
Bank.
Countersigned:
for and on behalf of the Bank.
Dated:
2. We hereby acknowledge receipt of the original of this letter and confirm that we have
no objection to the method of payment suggested.
Countersigned:
for and on behalf of the Employer.
Dated:
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SCHEDULES
The information contained in Schedules 1-4 is indicative only and shall vary in relation to each
project.
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THE FIRST SCHEDULE
THE PROJECT
1. The Project comprises:
2. The target cost for the Project (the Target Cost) shall be Bahrain Dinars: [ ] BD [ ]
and shall be subject to revision from time to time on the basis of probable
construction costs
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THE SECOND SCHEDULE
THE SERVICES
Note:- When Consultant QS is appointed directly by Employer, Items 4 & 5 detailed below
have to be modified.
The Services shall comprise the design of the Project and shall include but not be limited to the
following:
1. Investigation
2. Preliminary Design
3. Detailed Design
4. Working Drawings and Tender Documents
5. Tendering and Recommendation of Contractor
6. Building Permit
7. Monthly Reports
The design of the Project is described in more detail below:
1 Investigation
a The Consultant Engineer shall investigate all available data relevant to the
Project and shall initiate and supervise all normal soil investigations on the
site of the Project.
b The Consultant Engineer shall advise the Employer of the need for any
special surveys, investigations or tests necessary for the safe and proper
design and execution of the Project, shall with the Employer’s prior written
approval arrange for these to be carried out on the Employer’s behalf and
shall study, analyse and report in full to the Employer on the results thereof.
c The Consultant Engineer shall approach all relevant Authorities in order to
establish basic approval criteria relevant to the design and execution of the
Project.
2 Preliminary Design
a The Consultant Engineer shall prepare and present for the Employer’s
approval outline plans for the Project which meet the Employer’s
requirements and objectives in conformity with the Contract, the Target Cost
and the results of the Consultant Engineer’s investigations described in
paragraph 1 (the Preliminary Design).
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b The Consultant Engineer shall submit to the Employer a probable
construction costs based on current area, volume and cost in Bahrain.
3 Detailed Design
a Upon receipt of written approval from the Employer of the Preliminary
Design the Consultant Engineer shall prepare for the Employer’s approval
drawings, designs and specifications to a sufficient level of detail to fix and
describe the size and character of the Project (the Detailed Design). The
Consultant Engineer shall submit the Detailed Design together with such
other information as may be required to the relevant Authorities for planning
and approval and (subject to reimbursement by the Employer) shall pay any
necessary fees and shall report to the Employer as soon as planning approval
has been granted.
b The Consultant Engineer shall submit to the Employer a statement of probable
construction costs based on current area, volume and cost in Bahrain.
4 Working Drawings and Tender Documents
Upon receipt of written approval from the Employer of the Detailed Design the
Consultant Engineer shall prepare:
a Working drawings of the Project (the Working Drawings).
b All such documents as together with the Working Drawings shall enable the
Employer to put the Project to tender (the Tender Documents). The Tender
Documents shall include general and special conditions of contract,
invitations to tender, forms of tender, architectural, electrical and mechanical
specifications and bills of quantities/schedules of rates and prices and such
other forms and documents as may from time to time be required by the
Employer. The Consultant Engineer may allow in the Tender Documents for
the provision and maintenance by the selected Contractor of air-conditioned,
furnished office accommodation for the Consultant Engineer on the site of the
Project and for the connection and maintenance of water, electricity and
telephone services for such accommodation at no cost to the Consultant
Engineer (with the exception only of international telephone calls, telexes and
cables). A draft copy of the Tender Documents shall be submitted to the
Employer for approval not less than one month prior to going to tender.
c Priced bills of quantities/schedule of rates and prices based on the latest
estimated rates and realistic cost of materials prevailing in Bahrain which bills
of quantities/schedule of prices shall be used for comparison of tenders
received (the Rates and Priced Documents).
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5 Tendering and Recommendation of Contractor
Upon receipt of written approval from the Employer of the Working Drawings, the
Tender Documents and the Priced Documents and subject to formal planning
approval having been granted for the execution of the Project the Consultant
Engineer shall undertake the following duties (the Tender Procedure):
a Pre-qualifying and selection, after obtaining the Employer’s approval, of
suitable contractors to participate in the tender for the execution of the
Project.
b Assisting in the tender as required and advising the Employer on tenders
received, including providing financial and technical evaluations of such
tenders and submitting a detailed written recommendation regarding the
award of the Contract for the execution of the Project. No tender shall be
accepted or award placed by the Consultant Engineer except on behalf of the
Employer and with his prior authority in writing.
c In the event that no tender for the Project is received which is satisfactory to
the Employer in every respect and which is for a total amount less than the
Target Cost and provided that:
i any excess over the Target Cost is not due to delays by the Employer in the
award of a Building Contract; or
ii the scale of the project finally set by the Employer is not such as to render the
Target Cost inadequate in the event that the Consultant Engineer shall have so
advised the Employer prior to the issue of the Tender Documents
then the Consultant Engineer shall without any further charge to the Employer
take all necessary additional action either by redesign or by alteration to the
scope of the Project as requested by the Employer to ensure that subsequent
satisfactory tenders are submitted within the Target Cost.
d Advising on the preparation and award of the Building Contract.
e Engrossing the approved form of Building Contract and arranging for the
signing of the Building Contract and for the delivery to the Employer of the
signed and dated Building Contract.
6 Building Permit
It is the Consultant Engineer’s responsibility to apply for the building permit in
sufficient time that the permit is available to allow construction to start as scheduled.
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7 Monthly Reports
The Consultant Engineer shall submit monthly reports which shall advise on:
o Milestone events since the previous report
o Progress compared to programme
o Financial implications of instructions received and anticipated to be received
from the Employer
o Financial implications as a result of other factors
o Information or instructions required from the Employer and the date by when it
is required in order to maintain programme
o Milestone events programmed to occur within the month following the report.
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THE THIRD SCHEDULE
THE CONSULTANT ENGINEER'S PROGRAMME
The Consultant Engineer shall complete the Services in accordance with the following
programme commencing:[ ] (the Commencement Date):
a The Preliminary Design and the statement of probable construction costs
within [ ] ([ ]) weeks from the Commencement Date.
b The Detailed Design and the statement of probable construction costs within [
] ([ ]) weeks from the Commencement Date.
c The Working Drawings, the Tender Documents and the Priced Documents
within [ ] ([ ]) weeks from the Commencement Date.
d The Tender Procedure within [ ] ([ ]) weeks from the
Commencement Date.
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THE FOURTH SCHEDULE
THE CONSULTANT ENGINEER’S REMUNERATION
In consideration of the due and diligent performance of the Services the Employer shall pay the
Consultant Engineer a total inclusive fee made up as follows:
a A sum equivalent to the lesser of [ ] percent ([ ]%) of the actual
cost of execution of the project and BD [ ]
b The fee described in this Schedule shall be payable in the following manner:
i [ ] percent ([ ]%) of the Preliminary Design and construction
costs on the approval by the Employer the statement of probable construction
costs
ii [ ] percent ([ ]%) on the approval by the Employer of the
Detailed Design and the statement of probable construction costs.
iii [ ] percent ([ ]%) on the approval by the Employer of the
Working Drawings and the Priced Documents.
c Prior to receipt of tenders, payment under paragraph a above of this Schedule
shall be calculated in accordance with the Target Cost. Such payment shall
not be regarded as a valuation of the duties performed at the respective stages
but shall rank solely as payment on account towards the total fee payable.
d The above fees are fully inclusive of all costs and overheads that the
Consultant Engineer may incur at any time during the performance of the
Services.
e The above fees shall be payable in Bahrain Dinars, unless otherwise agreed
between the parties, within forty-two (42) days from the presentation to the
Employer by the Consultant Engineer of itemised invoices in the appropriate
amounts.
STANDARD
CONTRACT AGREEMENT
AND CONDITIONS OF CONTRACT
2009
POST CONTRACT ENGINEERING SERVICES
Copyright-Ministry of Works ConsultEngPost09
CONDITIONS OF CONTRACT
POST CONTRACT ENGINEERING SERVICES
CONTENTS
FORM OF CONTRACT AGREEMENT 1
CONDITIONS OF CONTRACT
1. Definitions 5
2. Interpretation 7
RESPONSIBILITIES OF THE CONSULTANT ENGINEER
3. Scope of Services 8
4. Duty of Care and Exercise of Authority 9
RESPONSIBILITIES OF THE EMPLOYER
5. Information Supplied by the Employer 10
PERSONNEL
6. Representatives 10
7. Appointment and Replacement of Staff 10
SECURITY
8. Performance Bond 11
COMMENCEMENT, COMPLETION AND TERMINATION
9. Contract Effective 11
10. The Consultant Engineer's Programme 11
11. Further Proposals 12
12. Delays 12
13. Abandonment Suspension or Termination 12
13.1 By Notice of the Employer 12
13.2 By Notice of the Consultant Engineer 13
13.3 Rights and Liabilities 14
13.4 Obligations at Termination 14
THE CONSULTANT ENGINEER'S REMUNERATION
14. Payment to the Consultant Engineer 15
15. Additional Services 15
16. Currency of Payment 16
17. Independent Audit 16
Copyright-Ministry of Works ConsultEngPost09
INSURANCES
18. Indemnity & Insurance 16
18.1 Indemnity 16
18.2 Insurance 16
GENERAL PROVISIONS
19. Law of Contract 18
20. Laws, Notices, Permits and Charges 18
21. Intellectual Property Rights 18
22. Trainees 19
23. Assignment and Subletting 19
24. Confidentiality 20
25. Notices 20
DISPUTES
26.1 Settlement of Disputes 20
26.2 Mediation (if applicable) 21
26.3 Arbitration 22
ANNEX 1 FORM OF PERFORMANCE BOND 23
ANNEX 2 FORM OF KEY DATES SCHEDULE 25
ANNEX 3 FORM OF REQUEST FOR PAYMENT BY BANK TRANSFER 28
THE FIRST SCHEDULE - THE PROJECT 31
THE SECOND SCHEDULE - THE SERVICES 32
THE THIRD SCHEDULE - THE CONSULTANT ENGINEER'S PROGRAMME 37
THE FOURTH SCHEDULE -THE CONSULTANT ENGINEER'S
REMUNERATION 38
Copyright-Ministry of Works ConsultEngPost09 1
FORM OF CONTRACT AGREEMENT
(PROJECT TITLE)
CONTRACT NUMBER: [ ]
THIS CONTRACT AGREEMENT is made the [ ] day of [ ] 20 [ ]
BETWEEN
1) THE GOVERNMENT OF THE KINGDOM OF BAHRAIN as represented by the
MINISTRY OF WORKS of P.O. BOX 5, Bahrain (the Employer); and
2) [ ] of P.O. BOX [ ] Bahrain,
Commercial Registration Number [ ] (the Consultant Engineer).
WHEREAS the Employer intends to proceed with the development of the project described in
the First Schedule hereto (the Project) and has requested the Consultant Engineer to undertake
and perform the services described in the Second Schedule hereto (the Services) which the
Consultant Engineer has agreed to do for the Remuneration upon and subject to the terms and
conditions set out in this Contract.
NOW IT IS AGREED as follows:
1 In this Contract Agreement words and expressions shall have the same meaning as in
the Conditions of Contract hereinafter referred to.
2 The following documents shall form and be read as the Contract:
a this Contract Agreement
b the Conditions of Contract
c the Key Dates Schedule [Delete if not applicable]
d the Letter of Award [Delete if not applicable]
3 In the event of any conflict or discrepancy between any other documents comprising
the Contract and any of the terms of this Contract Agreement the terms of this
Contract Agreement shall prevail.
4 The following Schedules (the Schedules) shall form part of and shall be read and
construed in conjunction with this Contract Agreement:
a First Schedule - the Project
b Second Schedule - the Services
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c Third Schedule - the Consultant Engineer's Programme
d Fourth Schedule - the Consultant Engineer's Remuneration
5 Notwithstanding any of the terms set out in this Contract Agreement the Schedules
shall have full effect as terms of this Contract Agreement and in the case of any
conflict or discrepancy between any of the Schedules and any of the terms of this
Contract the Schedules shall prevail.
6 The Employer hereby appoints the Consultant Engineer and agrees to pay the
Consultant Engineer the Remuneration for the provision and execution of the
Services or such other sums as may become due under the Contract.
7 In consideration of the Remuneration to be paid by the Employer to the Consultant
Engineer, the Consultant Engineer hereby covenants with the Employer to provide,
execute, and complete the Services in all respects with the provisions of this
Contract.
8 The Consultant Engineer hereby warrants to the Employer:
a that he will comply with the Laws or where these are not available the
appropriate international standards duly approved by the Employer
(including, where appropriate, COEPP).
b that in the case of breach by the Consultant Engineer of this undertaking the
Employer shall have the right to terminate the Contract without prejudice to
any other remedies available to the Employer under this Agreement, and
c that the performance of the Services will conform strictly to the standards laid
down in the Contract and if no such standards are laid down to the best
accepted international standards of current professional practice.
9 The amount of third party insurance cover required under Clause 18.2a of the
Conditions of Contract shall be not less than Bahrain Dinars [ ] (BD [ ]) for any
one incident with the number of incidents unlimited and the amount of professional
indemnity insurance required under Clause 18.2b of the Conditions of Contract shall
be not less than Bahrain Dinars [ ] (BD [ ]) for any one claim, with the number of
claims unlimited.
10 The Key Dates Schedule set out in Annex 2 to the Conditions of Contract shall apply
and the Employer and the Consultant Engineer shall adhere to the Schedule. [Delete
if not applicable].
The Core Group and Early Warning provisions set out in the Second Schedule of the
Conditions of Contract shall apply and the Consultant Engineer shall participate in
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the Core Group (in accordance with the Second Schedule of the Contract) from the
date of this Contract and the members of the Core Group shall be:
For the Employer –
For the Contractor –
For the Consultant Engineer -
For the Quantity Surveyor –
If the Contractor and/or Quantity Surveyor has not been appointed, their identity and
their Core Group member shall be notified to the Consultant Engineer following their
appointment. Upon notification to the Consultant Engineer the relevant party shall
become a member of the Core Group.
[Delete if not applicable]
11 Clause 26.2 of the Conditions of Contract shall apply and any dispute or difference
may be referred by either party to mediation by a mediator to be appointed by [
] who shall conduct the mediation in accordance with Clause 26.2. [Delete if not
applicable]
12 Clause 8 of the Conditions of Contract shall apply and the Consultant Engineer is
required to provide a Performance Bond for [ ]/Clause 8 shall not apply.
[Delete as applicable]
13 Pursuant to Clause 14.4 the rate of interest on overdue payments shall be [ ] per cent
([ ]%) per annum.
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IN WITNESS whereof the authorised representatives of the Employer and the Consultant
Engineer have signed this Contract Agreement on the date stated at the beginning of this
Contract Agreement.
SIGNED for and on behalf of
THE KINGDOM OF BAHRAIN
MINISTRY OF WORKS
in the presence of:
SIGNED for and on behalf of
The Consultant Engineer
in the presence of:
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CONDITIONS OF CONTRACT
1 Definitions
1.1 The following words and expressions shall have the meanings assigned to them
except where the context otherwise requires:
Additional Services means Services requested by the Employer that are in addition
to those described in the Second Schedule hereto and as referred to in Clause 15
hereof.
approved means approved in writing and approval means approval in writing.
Authority means any duly constituted authority in Bahrain.
Bahrain means the Kingdom of Bahrain.
Building Contract means the contract entered into between the Employer and the
Contractor.
COEPP means the Bahrain Committee for Organising Engineering Professional
Practice.
Conditions of Contracts means these conditions of contract.
Contract means the Contract Agreement, the Conditions of Contract and the
Schedules attached to the Conditions of Contract.
Contractor means a person or company appointed by the Employer to execute the
Works (including the goods and equipment to be supplied by the Employer) for the
achievement of the Project and so notified to the Consultant Engineer.
Consultant Engineer means the party named in this Contract, who is employed as
an independent professional firm by the Employer to perform the Services and legal
successors to the Consultant Engineer and permitted assignees.
Core Group if stated in Article 11 of the Contract Agreement to be applicable, the
Core Group shall be formed of the individuals identified in Article 11 of the Contract
Agreement as Core Group members, subject only in each case to replacement in
accordance with the Second Schedule and the Core Group will carry out the
functions set out in the Second Schedule and references to the Core Group shall
apply to each and all Core Group members.
day means the twenty-four (24) hour period between any one midnight and the next.
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Early Warning if stated in Article 11 of the Contract Agreement to be applicable,
means early warning in accordance with the system described in the Second
Schedule
Employer means the party named in this Contract who employs the Consultant
Engineer and legal successors in title to the Employer and permitted assignees.
Intellectual Property Rights means all intellectual property rights (including
without limitation patents, trademarks, designs, design rights, copyright, inventions,
trade secrets, know-how and confidential information) and all applications for
protection of any of the same.
Key Dates Schedule if stated in Article 10 of the Contract Agreement to be
applicable, means any key dates schedule as described in the Second Schedule and
forming part of the Contract.
Laws mean all laws applicable to the Contract and the Works including all 'Statutes',
'Decrees', 'Orders', 'Ordinances', 'Regulations' and 'Bye-laws' of any duly constituted
authority in force from time to time in Bahrain.
National Standard means those current professional standards applicable to the
Consultant Engineer's profession in Bahrain.
month means a period of one month according to the Gregorian calendar
commencing with any day of the month.
party and parties means the Employer and the Consultant Engineer and third party
means any other person or entity as the context requires.
Performance Bond means a performance bond as referred to in Clause 8 and in the
form set out in Annex 1 to the Conditions of Contract
Project means the project named in the First Schedule
Quantity Surveyor means the quantity surveyor appointed by the Employer in
relation to the Project and notified to the Consultant Engineer.
Remuneration means the remuneration to be paid by the Employer to the
Consultant Engineer further to the Fourth Schedule or such other sums as may
become due under the Contract.
Request for Payment by Bank Transfer means a request as referred to in Clause
14.3 and in the form set out in Annex 3 to the Conditions of Contract.
Representative means an official directly employed by either party to administer the
Contract as notified to the other party.
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Services means the services to be performed by the Consultant Engineer stated in the
Second Schedule
Value Engineering means a structured system for the review of the design, supply
and construction process to identify options and scope for improvement, including
reduced capital and/or whole-life costs, improved buildability and improved
functionality.
Working Day means Sunday to Thursday inclusive but not including any public
holiday recognised in Bahrain.
Works means the permanent works to be executed (including the goods and
equipment to be supplied by the Employer) for the achievement of the Project.
2 Interpretation
2.1 The headings in these Conditions of Contract shall not be taken into consideration in
the interpretation of the Contract.
2.2 Words used in the singular shall have the same meaning in the plural and vice versa.
2.3 The Contract is to be construed and interpreted in the English language. All
references to dates or periods of time shall be construed in accordance with the
Gregorian calendar.
2.4 References in these Conditions of Contract to Clauses and Schedules shall, unless
otherwise stated, be treated as references respectively to Clauses in and Schedules
annexed to these Conditions of Contract.
2.5 The Contract supersedes all prior contracts, agreements and understandings between
the parties and no change termination or attempted waiver of any of the provisions
hereof shall be binding unless in writing and signed by the party against whom the
same is to be enforced. By entering into the Contract the Consultant Engineer is
deemed to have waived its general terms and/or conditions of business (if any).
2.6 Whenever the date for the performance of any term, condition, obligation, covenant,
agreement or provision required or provided under the Contract falls on a date that is
not a Working Day, such date shall be extended to the next succeeding Working
Day.
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RESPONSIBILITIES OF THE CONSULTANT ENGINEER
3 Scope of Services
3.1 The Consultant Engineer shall perform the Services in such a way that they:
a Achieve the purpose to be served by the Project in the most practical and
economical manner.
b Accord with good professional and current practice and take into account the
particular conditions prevailing in Bahrain.
c Adopt only such changes as have been previously approved in writing by the
Employer.
d Adhere to the standard contract documents generally used by the Employer.
e Use the metric system and the English language throughout the performance
of the Services unless otherwise instructed by the Employer.
3.2 The Consultant Engineer shall be responsible for the correctness and soundness of all
documents and drawings prepared by him in connection with the Project. Neither the
approval by the Employer of such documents and drawings nor the failure of the
Employer to discern any defect in or omission from such documents and drawings
shall absolve or relieve the Consultant Engineer of any of his design responsibilities
or other duties and obligations under this Contract.
All such documents and drawings shall be the property of the Employer and shall not
be shown, given or related by the Consultant Engineer to any third party without the
prior written approval of the Employer.
3.3 The Consultant Engineer shall report to the Employer without delay any arising need
for information, investigation or analysis in connection with the Project.
3.4 The Consultant Engineer is obliged to cooperate fully with all other consultants and
experts engaged by the Employer in connection with the Project.
3.5 The Consultant Engineer is obliged to follow all the Employer’s instructions in
relation to the Project but shall inform the Employer immediately in writing if it feels
that any such instruction is contradictory to the efficient execution and completion of
the Project.
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4 Duty of Care and Exercise of Authority
4.1 The Consultant Engineer shall exercise all reasonable skill, care and diligence in the
performance of his obligations under this Contract.
4.2 The Consultant Engineer acknowledges that the Employer shall be deemed to have
relied on the Consultant Engineer’s professional skill and judgement in respect of
those matters relating to the Project which lie within the scope of the Consultant
Engineer’s responsibilities hereunder and that accordingly the Consultant Engineer
owes to the Employer a professional duty of care.
4.3 The Consultant Engineer shall perform the Services in such manner and at such
times that no negligent or intentional act, omission or default by the Consultant
Engineer in relation to the Services shall constitute, cause or contribute to any breach
by the Employer of any of the Employer’s obligations in respect of the Project of
which the Consultant Engineer is aware.
4.4 Where the Services include the exercise of powers or performance of duties
authorised or required by the terms of a contract between the Employer and any third
party, the Consultant Engineer shall:
a Act in accordance with the contract provided that the details of such powers
and duties are acceptable to him where they are not described in the Second
Schedule.
b If authorised to certify, decide or exercise discretion, do so fairly between the
Employer and the third party, not as an arbitrator but in accordance with the
skill and judgement expected from an independent professional advisor.
c If so authorised vary the obligations of any third party, subject to obtaining
the prior approval of the Employer to any variation which can have an
important effect on costs or quality or time (except in any emergency when
the Consultant Engineer shall inform the Employer as soon as practicable).
4.5 The Consultant Engineer shall not accept any trade commission, discount, allowance,
indirect payment or other consideration from any third party in connection with the
Project.
4.6 The Consultant Engineer shall not have the benefit whether directly or indirectly of
any royalty, gratuity or commission in respect of any patented or protected article or
process used on or for the purposes of the Project.
4.7 Subject as hereinafter mentioned the Consultant Engineer shall not specify any
particular trade or proprietary name in any documents or drawings prepared by him
in the course of the performance of the Services. In cases where in order to identify
the type and/or quality of any article or process the use of a trade or proprietary name
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is unavoidable the Consultant Engineer shall nominate at least one such name and
shall add the words "or approved equivalent". The prior approval of the Employer
shall be obtained to such nomination of a trade or proprietary name.
RESPONSIBILITIES OF THE EMPLOYER
5 Information Supplied by the Employer
5.1 The Employer shall supply the Consultant Engineer in such time as may be
reasonable with the information and data in the Employer's possession as is relevant
to the Services and this Contract. Further to supplying this information and data the
Employer is under no obligation to secure information and data from other sources.
5.2 On all matters properly referred to him in writing by the Consultant Engineer the
Employer shall, within a reasonable period of time, give his decision in writing so as
not to delay the Services.
5.3 The Employer shall not give an instruction to the Consultant Engineer which would
require him to act in a way that is outside his professional code of conduct.
PERSONNEL
6 Representatives
6.1 For the administration of this Contract each party shall designate an official or
individual to be his Representative.
7 Appointment and Replacement of Staff
7.1 The Services shall be performed by skilled, experienced and qualified members of
the Consultant Engineer’s staff who shall have the required permits and licences
issued by the appropriate Authority to work in Bahrain.
7.2 The Consultant Engineer shall submit for the approval of the Employer a complete
résumé of the training, qualifications and experience of each professional member of
the Consultant Engineer’s staff prior to his appointment in connection with the
Services. The Employer’s approval shall not unreasonably be withheld but shall not
relieve the Consultant Engineer of any of his duties and obligations under this
Contract. Following the Employer’s approval no change shall be made in the
Consultant Engineer’s professional staff without the Employer’s further approval,
which shall be duly requested by the Consultant Engineer at least thirty (30) days in
advance of any proposed change unless in the event of an emergency the Employer
shall accept a shorter period of notice.
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7.3 Should the Employer for any reason whatsoever be of the opinion that any member
of the staff appointed by the Consultant Engineer is unsatisfactory, the Consultant
Engineer will upon receipt of written instructions from the Employer immediately
terminate the assignment of such person and make arrangements for a suitable
replacement within thirty (30) days, without in any way interrupting the performance
of the Services during this time.
7.4 Should the Consultant Engineer fail to comply with the Employer’s written
instructions, the Employer reserves the right to withhold payment in respect of the
proportion of the Remuneration that the Employer in his discretion deems
attributable to the unsatisfactory member of staff.
SECURITY
8 Performance Bond
8.1 If Article 13 of the Contract Agreement provides for the Consultant Engineer to
obtain and provide a Performance Bond, then the Consultant Engineer shall have
obtained and provided to the Employer prior to the date of the Contract Agreement
such Performance Bond in the sum stated in the Contract Agreement and
substantially in the form set out in Annex 1.
8.2 If the Consultant Engineer shall fail to comply with Clause 8.1, the Employer shall
be entitled to treat the Contract as repudiated by the Consultant Engineer and upon
such repudiation to recover all loss, cost and expense occasioned by such
repudiation.
COMMENCEMENT, COMPLETION AND TERMINATION
9 Contract Effective
9.1 This Contract is effective from the date of the latest signature necessary to complete
this Contract and shall govern the Services performed prior to that date.
10 The Consultant Engineer's Programme
10.1 The Services shall be performed in accordance with the Consultant Engineer’s
programme set out in the Third Schedule hereto (the Consultant Engineer’s
Programme) subject to extensions in accordance with this Contract.
10.2 Completion of each stage of the Services shall be deemed to occur upon receipt by
the Consultant Engineer of the approval thereof from the Employer.
10.3 If the Consultant Engineer at any time has reason to believe that the Time for
Completion of the Building Contract or the Consultant Engineer's Programme will
be delayed, the Consultant Engineer shall promptly notify the Employer of the fact,
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of the expected period of delay, of the cause of the delay and the steps proposed by
the Consultant Engineer to minimise the delay.
10.4 Subject to any extension of time granted by the Employer in writing to the
Consultant Engineer, if the Consultant Engineer fails to complete any stage of the
Services within the period specified in the Consultant Engineer's Programme, then it
should be liable to pay to the Employer a sum of Bahrain Dinars equivalent to 1% of
the Remuneration of the relevant stage of the Services for each week of delay up to a
maximum of 5% of the Remuneration, being the penalty for delay. The penalty for
delay may be deducted by the Employer from the Consultant Engineer's
Remuneration but shall not relieve the Consultant Engineer from any of its
responsibilities and obligations under this Agreement.
11 Further Proposals
11.1 If requested by the Employer in writing, the Consultant Engineer shall submit
proposals for altering the Services.
12 Delays
12.1 If the Consultant Engineer considers the Services are impeded or delayed by the
Employer or any third party so as to increase the amount or duration of the Services,
the Consultant Engineer shall give immediate notice to the Employer of the
circumstances of such impediment/delay together with the additional Services
required, additional time for completion and associated costs.
12.2 In the event that such notice as described in 12.1 is issued by the Consultant
Engineer the Employer shall review the contents of the notice and confirm his
acceptance in full or in part, which shall not be unreasonably withheld. If approved
by the Employer, the increase shall be regarded as Additional Services and the time
for completion of the Services shall be increased accordingly. If rejected by the
Employer and the parties cannot reach agreement within seven (7) days of the
Employer notifying the Consultant Engineer of his rejection the matter shall be
determined in accordance with Clause 26.
13 Abandonment Suspension or Termination
13.1 By Notice of the Employer
a The Employer may suspend all or part of the Services or terminate this
Contract by notice of at least thirty (30) days to the Consultant Engineer who
shall immediately make arrangements to stop the Services and minimise
expenditure.
b If the Employer considers that the Consultant Engineer is without good
reason not discharging his obligations he can inform the Consultant Engineer
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by notice stating the grounds for the notice. If a satisfactory reply is not
received within fourteen (14) days the Employer can by a further notice
terminate the appointment of the Consultant Engineer under this Contract
with immediate effect.
c In the event that the whole or any part of the Project shall be postponed or
abandoned by the Employer, then the payment to be made to the Consultant
Engineer for the Services performed in respect of that part of the Project so
postponed or abandoned shall be calculated on the basis of the Remuneration
according to the proportion of the Services which has been wholly or partially
performed by the Consultant Engineer at such time. If the Project is finally
abandoned, then such payment shall be accepted by the Consultant Engineer
in full and final settlement of his entitlement to the Remuneration.
d If within one (1) year of its postponement the Employer shall wish to resume
the development of the postponed whole or part of the Project then any
payments made to the Consultant Engineer pursuant to this Clause shall rank
as payments on account and the Consultant Engineer shall be obliged to
resume the performance of the Services in accordance with the Contract and
the Employer shall pay the Consultant Engineer’s Remuneration in
accordance with Schedule 4.
e If in the second year of its postponement the Employer shall wish to resume
the development of the postponed whole or part of the Project then any
payments made to the Consultant Engineer pursuant to this Clause shall rank
as payments on account and the Consultant Engineer shall be obliged to
resume the performance of the Services in accordance with the Contract and
the Consultant Engineer’s Remuneration shall be revised by the parties
(subject to both party's approval). In the event that the Project or any part
thereof shall be postponed for a period longer than two (2) years then the
Contract or such part thereof shall, immediately on service of notice by the
Employer, be considered to have been abandoned.
13.2 By Notice of the Consultant Engineer
a After giving at least thirty (30) days notice to the Employer, the Consultant
Engineer can by a further notice of fourteen (14) days terminate this Contract,
or at his discretion without prejudice to the right to terminate, can suspend or
continue suspension of performance of the whole or part of the Services:
i when twenty-eight (28) days after the due date for payment in accordance
with Clause 14.1 of this Contract, of an invoice it has not received payment
of that part of it which has not, by that time, been contested in writing by the
Employer;
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ii when Services have been suspended under Clause 13.1 and the period of
suspension has exceeded one (1) year;
iii if circumstances arise beyond the control of the Consultant Engineer which
the Consultant Engineer could not reasonably have foreseen and which make
it impossible for it to perform in whole or in part the Services in accordance
with this Contract
b provided that should the Employer’s default be remedied within such notice
period then this Contract shall automatically remain in full force and effect.
13.3 Rights and Liabilities
a If this Contract is terminated by either of the parties hereto in accordance
with the provisions of Clauses 13.1 and 13.2 above then the Employer shall
have the right to receive and use the originals of all documents and drawings
prepared by the Consultant Engineer prior to the date of such termination
providing the Consultant Engineer has received the Remuneration due to him
pursuant to Clause 13.1 c above.
b Termination of this Contract shall not prejudice or affect the accrued rights or
claims and liabilities of the parties.
13.4 Obligations at Termination
In the event that the Employer has appointed another consultant to complete the
Services following termination of the Consultant Engineer’s appointment under this
Contract by either party the Consultant Engineer shall:
a co-operate fully with such consultant for the orderly transfer of the Services;
and
b deliver to the Employer within two (2) weeks from the date of notice issued
by the Employer confirming that another consultant has been appointed all
documents and other work prepared by the Consultant Engineer pursuant to
this Contract.
If the Consultant Engineer does not comply with its obligations under this Clause
13.4 the Employer shall be entitled to withhold any monies owed to the Consultant
Engineer under this Contract.
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THE CONSULTANT ENGINEER’S REMUNERATION
14 Payment to the Consultant Engineer
14.1 In consideration of the due and diligent performance of the Services by the
Consultant Engineer in accordance with the Contract the Employer shall pay to the
Consultant Engineer the Remuneration in accordance with the provisions of the
Fourth Schedule and within forty-two (42) days from the presentation to the
Employer by the Consultant Engineer of itemised invoices in the amount agreed by
the Employer and the Consultant Engineer (the due date).
14.2 All costs, penalties, damages or expenses for which under this Contract the
Consultant Engineer is liable to the Employer may be deducted by the Employer
from any monies due or becoming due to the Consultant Engineer under this
Contract or may be recovered by action at law or otherwise from the Consultant
Engineer.
14.3 If the Consultant Engineer wishes payment of any monies due under this Contract to
be made to his bank then it shall arrange for its bank to complete and shall then itself
complete and deliver to the Employer a Form of Request for Payment by Bank
Transfer in the form set out in Annex 3. Any such payment by the Employer to the
Consultant Engineer’s bank shall be subject to and on the basis of the conditions and
provisions set forth in the Form of Request for Payment by Bank Transfer.
14.4 In the event of failure by the Employer to make payment in accordance with Clauses
14.1, 14.2 and 14.3, the Employer shall pay to the Consultant Engineer interest upon
any overdue payment at the rate stated in Article 14 of the Contract Agreement from
the latest date when the payment should have been made.
15 Additional Services
15.1 The Employer may at any time require the performance by the Consultant Engineer
of Additional Services in relation to the Project, which additional services the
Consultant Engineer shall duly perform in consideration of appropriate additional
remuneration to be mutually agreed in writing in advance between the parties hereto.
15.2 The above Additional Services shall not include the correction or re-execution of all
or any part of any stage of the Services in the event that such correction or re-
execution is required by the Employer as a result of the action, inaction, default or
negligence of the Consultant Engineer or any member of his staff.
15.3 In the event that after the completion of any stage of the Services the Employer shall
require the complete or partial modification of any aspect of the Services by virtue of
a revision of the design brief or of the Employer’s requirements in relation to the
Project then such modification shall constitute Additional Services and shall attract
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additional remuneration as shall be mutually agreed in writing in advance between
the parties hereto.
15.4 In the event that the whole or any part of the Project shall be damaged or destroyed
before its completion then provided such damage or destruction is not attributable to
the action, inaction, default or negligence of the Consultant Engineer or any member
of his staff, any Additional Services required by the Employer to be performed by
the Consultant Engineer as a result of such damage or destruction shall attract such
additional remuneration as shall be mutually agreed in writing in advance between
the parties hereto.
16 Currency of Payment
The currency applicable to this Contract is Bahrain Dinars, unless otherwise agreed
between the parties.
17 Independent Audit
17.1 Except where this Contract provides for lump sum payments, the Consultant
Engineer shall maintain up-to-date records which clearly identify relevant time and
expense.
17.2 Except where this Contract provides for lump sum payments, not later than twelve
(12) months after the completion of the Services, the Employer can at notice of not
less than seven (7) days require that a reputable firm of accountants nominated by
him audit any amount claimed by the Consultant Engineer by attending during
normal working hours at the office where the records are maintained.
INSURANCES
18 Indemnity and Insurance
18.1 Indemnity
The Consultant Engineer shall be liable for and shall indemnify the Employer against
any expense, liability, loss, claim or proceedings whatsoever in respect of death or
personal injury to any person or material or physical loss of or damage to any
property whatsoever which may arise out of or in consequence of the performance of
the Contract unless due to any act or neglect of the Employer or of any person for
whom the Employer is responsible.
18.2 Insurance
a Third Party Insurance
Without prejudice to its liability to indemnify the Employer under Clause
18.1 the Consultant Engineer shall on or before the date of Contract in the
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joint names of the Employer and the Consultant Engineer take out insurances
for at least the amount stated in Article 9 of the Contract Agreement against
its liability for any death of or injury to any person (including any employee
of the Employer) or any damage or loss to any property (including any
property of the Employer) caused by or arising out of or in consequence of
the execution of the Contract and as are necessary to cover the liability of the
Consultant Engineer under Clause 18.1. Such insurance shall include cross
liability clauses indemnifying each of the jointly insured against claims made
on it by the other.
b Professional Indemnity Insurance
The Consultant Engineer shall take out and maintain professional indemnity
insurance, without unusual or onerous conditions attached to it, in the amount
stated in Article 9 for any one claim with the number of claims unlimited,
commencing no later than the date of the Contract Agreement and ending ten
(10) years after the date the last of the Services was completed.
c Recognised Insurers
The insurance policies required under Clause 18 shall be taken out with one
of the insurance companies for the time being recognised by the Employer in
terms approved by the Employer, which approval shall not be unreasonably
withheld and the Consultant Engineer shall ensure the continued adequacy of
the insurances at all times in accordance with the terms of the Contract.
d Insurance Policies
As and when required so to do by the Employer the Consultant Engineer shall
produce for inspection the insurance policies required under Clause 18 and
the receipts for payment of the current premiums and in default of the
Consultant Engineer so insuring or continuing to insure as required the
Employer may itself insure against any risk with respect to which the default
shall have occurred and may deduct a sum or sums equivalent to the amount
paid or payable in respect of such premiums from any monies due or to
become due to the Consultant Engineer, or recover the same as a debt due
from the Consultant Engineer. The Employer reserves the right to suspend all
or part of the Services by immediate notice to the Consultant Engineer until
the Consultant Engineer takes out such insurances. Any costs incurred by the
Employer as a result of such suspension shall be borne by the Consultant
Engineer and such suspension shall not entitle the Consultant Engineer to an
extension of the Consultant Engineer's Programme or any additional
Remuneration.
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18.3 The above insurance policies shall in no way limit the liability of the Consultant
Engineer under this Contract.
GENERAL PROVISIONS
19 Law of Contract
This Contract is made in Bahrain and is subject to the laws of Bahrain.
20 Laws, Notices, Permits and Charges
The Consultant Engineer shall give all notices and shall obtain all visas, licences and
permits as may be required by the relevant Laws and shall pay all appropriate
charges and fees therefore and shall pay all such custom duties, levies and taxes as
may be required by Law and shall keep the Employer indemnified against all
penalties and liability of every kind for breach of any such Laws.
21 Intellectual Property Rights
21.1 The Consultant Engineer warrants to the Employer that no design or document that it
prepares and nothing else that it contributes to the Works shall infringe any
Intellectual Property Rights, and undertakes to indemnify the Employer in respect of
any legal liability and related costs arising out of or in connection with any such
infringement of any Intellectual Property Rights.
21.2 The Consultant Engineer shall retain Intellectual Property Rights in all documents
that it prepares in relation to the Works, and as beneficial owner grants to the
Employer an irrevocable non-exclusive royalty-free licence to copy and use all such
designs and documents for any purpose relating to completion and use of the Works,
in all cases with the right to transfer and sub-licence such rights for the same
purposes, and shall ensure that such licence shall have the support of such rights
from third parties as are necessary to allow the grant of such licence.
21.3 The Consultant Engineer shall not be liable for the use of any document that it
prepares for any purpose other than for which it was agreed to be prepared as stated
in, or reasonably inferred from, the Contract.
21.4 Subject to the Intellectual Property Rights described in Clause 21.2, ownership in all
the existing documents and other physical embodiments of designs relating to the
Works shall transfer from the Consultant Engineer to the Employer immediately
prior to the Consultant Engineer suffering an event of termination of his employment
as described in Clause 13. In such circumstances, the Consultant Engineer shall
hand over all such documents and designs to the Employer immediately upon
request.
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21.5 In the event of any claim being made or action being brought against the Employer
arising out of the matters referred to in this Clause 21 the Consultant Engineer shall
be promptly notified thereof and may at his own expense conduct all negotiation for
the settlement of the same and any litigation that may arise therefrom. The
Employer shall not unless and until the Consultant Engineer shall have failed to take
over the conduct of the negotiations or litigation make any admission which might be
prejudicial upon the Consultant Engineer having first given to the Employer such
reasonable security as shall from time to time be required by the Employer to cover
the amount ascertained or agreed or estimated as the case may be of any
compensation, damages, expenses and costs for which the Employer may become
liable in respect of such infringement as aforesaid. The Employer shall, at the request
of the Consultant Engineer, afford all available assistance for the purpose of
contesting any such claim or action and shall be repaid any expenses incurred in so
doing.
22 Trainees
The Employer reserves the right during any stage of the Services to appoint any
reasonable number of suitably qualified trainees to be trained by the Consultant
Engineer. All salaries and costs in respect of such trainees shall be borne by the
Employer and the Consultant Engineer shall be reimbursed net, upon production of
invoices, any direct additional costs arising provided that any such costs shall be
approved in advance by the Employer.
23 Assignment and Subletting
23.1 The Consultant Engineer shall not, without the prior consent of the Employer, assign
or transfer the benefit or duties of this Contract or any part thereof provided that it
shall be lawful for the Consultant Engineer at any time to take into partnership
another partner or partners whereupon it or they or the survivors of them shall
thenceforth automatically be deemed to be included in the expression "the
Consultant Engineer" for all the purposes of this Contract.
23.2 Notwithstanding the provisions of Clause 23.1 above the Consultant Engineer may
subject to the prior approval of the Employer sub-let to a specialist sub-consultant
any part of the Services which is customary or of necessity and because of its nature
required to be performed by such a specialist sub-consultant. The provisions of
Clause 23.1 shall apply to the staff of any approved specialist sub-consultant but the
Employer’s approval of any specialist sub-consultant or any member of the staff of
such specialist sub-consultant shall in no way relieve the Consultant Engineer of any
of its duties and obligations under this Contract.
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24 Confidentiality
The Consultant Engineer shall not, except where strictly necessary for the purposes
of the Contract, during or after the expiry of this Contract disclose or suffer any
employee of the Consultant Engineer to disclose to any person whatsoever any
information of which the Consultant Engineer or any such employee has or shall
hereafter become possessed by virtue of this Contract. The Consultant Engineer shall
keep with inviolable secrecy any document or drawings supplied by the Employer
pursuant to this Contract and shall not use the same except in the performance of the
Services.
25 Notices
25.1 Any notice to be given under the terms of this Contract shall be properly served by
sending the same by registered mail or fax to the following respective addresses and
fax numbers of the parties hereto:
The Employer:
Attn:
Fax.
The Consultant Engineer:
Attn:
Fax.
25.2 The parties hereto shall promptly notify one another of any change of address or fax
number.
DISPUTES
26.1 Settlement of Disputes
If any dispute or difference of any kind whatsoever shall arise between the Employer
and the Consultant Engineer in connection with or arising out of the Contract
(whether during the progress of the Contract or after its completion and whether
before or after any determination abandonment or breach of the Contract) both
parties shall endeavour to amicably resolve the dispute. Unless the Contract shall
have already been determined or abandoned the parties shall in every case continue
to proceed with the Services unless and until the same shall be referred to Mediation
pursuant to Clause 26.2 (if stated in Article 12 of the Contract Agreement to apply)
or an Arbitration Committee as appointed in accordance with Clause 26.3.
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26.2 Mediation (if applicable)
If this Clause 26.2 is stated to be applicable in Article 12 of the Contract Agreement
and if the parties are unable to reach agreement on any matter then the matter shall
immediately be referred by the parties to a neutral mediator (the Mediator) whose
costs shall be paid in equal shares by the parties and the following clauses shall
apply:
a if the parties are unable to agree on the choice of a Mediator, or if the chosen
Mediator is unable or unwilling to act, then either party may immediately
apply to the organisation stated in Article 12 of the Contract Agreement, to
appoint a Mediator;
b the parties shall, within fourteen (14) days of the appointment of a Mediator,
or any other such period as the parties may subsequently agree, jointly meet
with it to agree a programme for the exchange of any relevant information
and the structure to be adopted for the negotiations;
c all negotiations shall be conducted in confidence and are not to be referred to
in any concurrent or subsequent proceedings, unless they conclude with a
written legally binding agreement. If the parties accept the Mediator's
recommendations, or otherwise reach agreement on the resolution of the
dispute, such agreement shall be recorded in writing and, once signed by the
designated representatives, shall be binding on the parties;
d if no agreement is reached, either party may invite the Mediator to provide to
both parties a non-binding opinion in writing. Such opinion shall not be used
in evidence in any concurrent or subsequent proceeding without the prior
written consent of both parties;
e the parties shall bear their own costs of preparing and submitting evidence to
the Mediator. If the Mediator finds that the mediation has been initiated or
conducted frivolously or vexatiously, then it shall have the power to order the
party so initiating or conducting the mediation to pay the reasonable costs of
the other party for preparing for and attending the mediations and if the costs
cannot be agreed, they shall be assessed by the Mediator, whose decision
shall be binding on the parties; and
f if the parties fail to reach agreement within twenty-eight (28) days of the
Mediator being appointed, or such other period as the parties may agree, then
both parties shall be entitled to submit the dispute to arbitration under the
terms of Clause 26.3. With the agreement of the parties, the Mediator shall
record those facts that the parties have agreed. All other matters in dispute
shall be referred to an Arbitration Committee who shall be allowed access to
the recorded and agreed facts. The Mediator's role shall cease on the
appointment of the Arbitration Committee. The Mediator shall not be
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available to appear as a witness in the arbitration, or to provide any additional
evidence obtained during the mediation.
26.3 Arbitration
If either the Employer or the Consultant Engineer is dissatisfied with the process of
resolving the dispute amicably and the option of Mediation as defined in Clause 26.2
is not applicable, (if stated in Article 12 of the Contract Agreement to be not
applicable) then either the Employer or the Consultant Engineer may require that the
matter be referred to the arbitration of an arbitration committee (the Arbitration
Committee) to be formed of three (3) members in the following manner: the
Employer and the Consultant Engineer shall each appoint one member thereto: if one
party fails so to appoint within fifteen (15) days of being requested by the other party
so to do, H.E. Minister of Justice of the Kingdom of Bahrain (upon a written request
from the party who has so appointed a member) shall appoint a member for the party
who has so failed to appoint. The third member, who shall be the Chairman of the
Arbitration Committee, shall be appointed reasonably promptly by agreement
between the other two members; if such agreement is not reached within fifteen (15)
days after their appointment, the said H.E. Minister of Justice of the Kingdom of
Bahrain shall appoint the third member upon the request of either party.
In any arbitration:
a the award of the Arbitration Committee shall be reached if not unanimously
by a majority of the Arbitration Committee;
b the award of the Arbitration Committee shall be final and binding on the
parties;
c the costs of the arbitration shall be within the discretion of the Arbitration
Committee; and
d such arbitration shall take place in Bahrain and shall be conducted in the
English Language.
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ANNEX 1
TO CONDITIONS OF CONTRACT
FORM OF PERFORMANCE BOND
(see Clause 8 of the Conditions of Contract)
To be engrossed on Insurance Company/Bank headed paper and addressed to the Employer.
No terms shall be deleted from this Performance Bond nor shall any terms be added
Bank ref: Dated:
Dear Sirs,
Performance Bond number:
Project:
Consultant Engineer:
Date of Contract:
In consideration of you, [ ] (the Employer) having agreed to enter into the
above contract (the Contract) with [ ] (the Consultant Engineer), we, the [ ]
Insurance Company / Bank of [ ] irrevocably and unconditionally guarantee
to the Employer subject to the terms below, that the Consultant Engineer shall perform and
fulfil all undertakings, covenants, terms and conditions of the Contract for [ ]
(the Services) and any extensions of the Contract, and that the Consultant Engineer shall
perform and fulfil all the undertakings, covenants, terms and conditions of the Contract and all
changes, modifications, additions or amendments to the Contract that may be made, and that the
Consultant Engineer shall also fully indemnify, defend and hold harmless the Employer from
all costs, liability and damage which the Employer may suffer by reason of the failure of the
Consultant Engineer so to do.
In the event that the Employer, in its absolute discretion, gives written notice to us at any time
of the failure of the Consultant Engineer to perform or fulfil any of the acts or obligations set
out in the above paragraph, we hereby unconditionally and irrevocably undertake, without any
right of set off or counterclaim whether on our behalf or on behalf of the Consultant Engineer,
to pay to the Employer the sum of BD[ ] ([ ]) being an amount equal to [ ]
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per cent ([ ]%) of the price recorded in the Contract. Such written notice of the Employer shall
be conclusively binding on us for all purposes under this Performance Bond.
We further agree that any change, modification, addition or amendment which may be made to
the terms and conditions of the Contract, or to the Services to be performed pursuant to the
Contract, or to the payments to be made on account pursuant to the Contract, or any extension
of the time of performance of the Services or any settlement, promise not to sue or other action
on the part of either the Employer or the Consultant Engineer to the other shall not in any way
release us from our continuing liability under this Performance Bond, and we expressly waive
our right to consent to or to receive notice of any such change, modification, addition,
amendment, extension, settlement, promise or action.
This Performance Bond shall be valid until the [ ] day of [ ] 20[ ].
This Performance Bond shall be governed by and interpreted under the Laws of the Kingdom of
Bahrain. It shall be returned to us on its expiry.
SIGNED
(as appropriate by properly authorised officials for and on behalf of the guaranteeing
Bank / Insurance Company)
To:
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ANNEX 2
TO CONDITIONS OF CONTRACT
(Delete if not applicable)
Form of Key Dates Schedule
(see Article 10 of the Contract Agreement )
Activity Responsible
party
Relevant
Dates/Periods of Time
Comments
1 Possession and Taking
Over of the Works and
each Section of the
Works
• Commencement of
Works/each Section
• Date for Completion of
Works/each Section
• Preconditions for
commencement of
Works/each Section and
Site access and
possession/issue of
Taking Over Certificate
• Procedures for
commencement of
Works/each Section and
Site access and
possession
• Procedures for
inspections, tests,
commissioning and
issue of Taking Over
Certificate for
Works/Sections
2 Restrictions caused by
work being carried out
by other contractors
• Dates/periods when
parts of Site shall be
unavailable
• Dates/periods when
parts of Site shall be
subject to restricted
access
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Activity Responsible
party
Relevant
Dates/Periods of Time
Comments
• Relevant procedures
3 Deadlines for
preparation and issue of
remaining Drawings and
Specifications and other
documents necessary for
the Works/each Section
to be constructed
• Deadlines for Drawings
and Specifications and
other documents
required by the
Engineer from the
Contractor (and its
relevant Sub-
Contractors)
• Period for approval by
the Engineer of
Drawings and
Specifications and other
documents as submitted
• Related Drawings and
Specifications and other
documents of the
Engineer to be
completed utilising
Drawings and
Specifications and other
documents submitted by
the Contractor
• Remaining Drawings
and Specifications and
other documents to be
issued to the Contractor
by the Engineer
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Activity Responsible
party
Relevant
Dates/Periods of Time
Comments
4 Provisional Sums
• Deadlines for
preparation of
remaining Drawings and
Specifications and other
documents required for
each Provisional Sum
item
• Periods for the
Contractor to invite
Sub-Contractors to bid
against completed
design information
• Periods for Sub-
Contractors' bids to be
reviewed and approved
by the Engineer
• Deadline for the
Engineer to authorise
relevant Provisional
Sum item
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ANNEX 3
TO CONDITIONS OF CONTRACT
STANDARD FORM OF
REQUEST FOR PAYMENT BY BANK TRANSFER
To be engrossed on Consultant Engineer’s headed paper and addressed to the Employer.
No terms shall be deleted from this Request nor shall any terms be added
To: The Employer
Re: Project name:
Contract no.
Consultant Engineer:
Dear Sirs,
We refer to the Contract dated [ ] for [ ]
(the Contract) between you (the Employer) and us (the Consultant Engineer). We have made
no previous request to you regarding the method of payment of monies falling due under the
Contract (the Contract Proceeds).
We hereby request and authorise you to pay as from the date of this Request the Contract
Proceeds into our Account No.[ ] with [ ] (the Bank).
In submitting this authority and Request it is hereby agreed as follows:
a the receipt of the Bank shall constitute a complete discharge in favour of the
Employer of all payments so made;
b the Consultant Engineer undertakes to raise no claim in respect of and to accept
liability for and to indemnify and hold harmless the Employer from any and all
claims made by third parties including the Bank and from any and all costs and losses
arising in connection with:
i the making by the Employer of any payments of the Contract Proceeds to
the Bank pursuant to this authority and Request;
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ii the failure of the Employer howsoever caused to commence, continue or
cease making any payments of the Contract Proceeds to the Bank pursuant
to this authority and Request provided that in such case payment is
otherwise made as required by law or order of the Courts of the Kingdom
of Bahrain.
c This authority and Request neither is nor constitutes notice of and assignment of the
Contract Proceeds in favour of the Bank.
d Contract Proceeds shall mean those sums which are due to the Consultant Engineer
under the Contract between the Employer and the Consultant Engineer and which
sums are subject to any deductions or set off made by the Employer in accordance
with the provisions of the Contract.
e This authority and Request cannot be varied or cancelled without the prior written
consent of the Bank.
Yours faithfully,
CONSULTANT ENGINEER:
Signature:
1. We hereby confirm our understanding and unqualified acceptance of the terms of this
letter and agree that neither this letter nor any payment made pursuant to this letter
shall create any contractual or fiduciary relationship between the Employer and the
Bank.
Countersigned:
for and on behalf of the Bank.
Dated:
2. We hereby acknowledge receipt of the original of this letter and confirm that we have
no objection to the method of payment suggested.
Countersigned:
for and on behalf of the Employer.
Dated:
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SCHEDULES
The information contained in Schedules 1-4 is indicative only and shall vary in relation to each
project.
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THE FIRST SCHEDULE
THE PROJECT
1. The Project comprises:
2. The target cost for the Project (the Target Cost) shall be Bahrain Dinars: [ ] BD [ ]
and shall be subject to revision from time to time on the basis of probable
construction costs
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THE SECOND SCHEDULE
THE SERVICES
The Services shall comprise the supervision of the Project and shall include but not be limited
to the following:
1) Supervising Construction
2) Monthly Reports
3) Core Group and Early Warning (if Applicable)
4) Key Dates Schedule (if Applicable)
The supervision of the Project are described in more detail below:
1 Supervising Construction
The Consultant Engineer shall be responsible for the administration and supervision
of the Project during the construction and maintenance period and shall in this
connection undertake the following duties (the Supervisory Duties):
a Issue to the Contractor such orders and instructions and give such professional
opinions as are necessary for the execution of the Project in accordance with
the Building Contract.
b Examine and approve the programme of work of the Contractor and all
drawings, reports and proposals submitted by the Contractor from time to
time.
c Rectify any errors revealed in the detailed design or the Working Drawings
during the course of the execution of the Project and prepare and obtain the
Employer’s written approval of any further detailed designs and Working
Drawings that may be required for the proper execution of the Project.
d Measure the progress of the execution of the Project and prepare and issue
interim and final certificates of payment, such certificates to be in a form
approved by the Employer, in accordance with the Building Contract.
e Submit to the Employer monthly reports on the progress of the Project,
together with photographs of all stages in the execution of the Project, inform
the Employer immediately in writing of any accident or damage that may
occur on the site of the Project and instruct the Contractor to make accident
reports as required by the Employer. Where delays on the site of the Project or
other problems occur, the Consultant Engineer with the Contractor shall
prepare and submit to the Employer proposals designed to rectify the
situation.
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f Advise the Employer on the necessity for the inspection and testing of
materials and plant supplied for the incorporation in the Project and arrange
for such inspection and testing to be carried out on the Employer’s behalf
within the costs allowed for in the Tender Documents.
g Supervise inspection and testing (including acceptance tests) upon
manufacture, prior to shipment, upon delivery and during and after
installation of all electrical and mechanical materials, machinery and plant
supplied for incorporation in the Project.
h Prepare and submit to the Employer at quarterly intervals or more frequently
as required, a review of the estimated final cost of the Project.
i Keep in Bahrain full and proper records of the progress of the Project and
deliver to the Employer on the completion of the Project a maintenance
manual in three (3) copies incorporating instructions, as built drawings, spare
parts listed and all such other records and information as are necessary for the
operation and maintenance of the Project.
j Assist in settling any disputes or differences which may arise between the
Employer and the Contractor. The Consultant Engineer and its resident site
supervisory staff shall continuously exert its utmost efforts to avoid the
submission of claims by the Contractor.
k In the event that any claim shall be received from the Contractor prior to the
issue of the final certificate at the end of the maintenance period of the Project
the Consultant Engineer shall immediately inform the Employer in writing
and then shall study such claim and prepare and submit to the Employer a
detailed report incorporating the Consultant Engineer's comments and
recommendations (within the cope of the Consultant Engineer's professional
and technical expertise) for the settlement and upon demand shall supply the
Employer with any information and documents as may reasonably be required
by the Employer in connection with such claim.
l During the execution of the Project act as "Engineer", as defined in the
Building Contract and carry out all the duties of the "Engineer" under the
Building Contract although the Consultant Engineer shall not be entitled to
amend or vary the Building Contract nor to give any instructions (except for
pressing reasons of safety) that could increase or decrease the overall cost of
the Project nor to authorise expenditure from provisional or contingency sums
without prior written approval of the Employer. The Consultant Engineer
shall promptly submit to the Employer copies of any variation orders or
equivalent instructions as soon as these are issued to the Contractor and shall
use the prescribed forms to issue variations and instructions under the
Building Contract.
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m Together with the Contractor hold regular site meetings to be chaired by the
Consultant Engineer. The Employer reserves the right for himself and his duly
authorised representative to attend and participate at all such site meetings.
Minutes shall be prepared by the Consultant Engineer and shall be submitted
to the Employer within seven (7) days of each such site meeting.
n Obtain and present to the Employer on the completion of the Project final
certificates relative to the Project issued by all the relevant Authorities.
o Employ full time on the site of the Project throughout the period of
construction a resident engineer together with such other specialist personnel
as listed in paragraph b of Part I to the Fourth Schedule hereto as may be
required from time to time during the various stages of the construction and
provide for the resident engineer and such other specialist personnel full time
office support from all necessary administrative staff.
2 Monthly Reports
The Consultant Engineer shall submit monthly reports which shall advise on:
o Milestone events since the previous report
o Progress compared to programme
o Financial implications of instructions received and anticipated to be received
from the Employer
o Financial implications as a result of other factors
o Information or instructions required from the Employer and the date by when it
is required in order to maintain programme
o Milestone events programmed to occur within the month following the report.
3 Core Group and Early Warning (if applicable)
The defined terms used in this clause shall, unless defined in this Contract, have the
meaning as given to them in the Building Contract.
If stated to be applicable in Article 11 of the Contract Agreement and subject to the
Core Group and Early Warning mechanisms being implemented under the Building
Contract, the Core Group and the Early Warning system will function as set out in
9a-9c and the Consultant Engineer will become a member of the Core Group and will
participate in the Early Warning system in accordance with 9d below and perform the
roles of the "Consultant Engineer" as set out below.
a The Employer, the Contractor, the Quantity Surveyor and the Consultant
Engineer shall establish a Core Group who shall meet regularly to review and
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stimulate the progress of the Works and the implementation of the Building
Contract. Members of the Core Group shall include the individuals so listed
in Article 11 of the Contract Agreement subject to replacement only with the
prior consent of the Employer, the Contractor, the Quantity Surveyor and the
Consultant Engineer;
b A meeting of the Core Group members shall be convened by the Consultant
Engineer at the request of any Core Group member, at not less than seven (7)
days notice to all Core Group members stating its agenda (unless all Core
Group members agree a shorter period). Each such meeting shall be chaired
by the Consultant Engineer and shall deal only with the matters listed in its
agenda (unless all Core Group members agree otherwise);
c Decisions of the Core Group shall be by unanimous agreement of all Core
Group members present at that meeting and any decision of the Core Group
shall be confirmed by an instruction of the Consultant Engineer. The
Employer, the Contractor, the Quantity Surveyor and the Consultant Engineer
shall comply with any decision of the Core Group made within the scope of
its agreed functions and confirmed by an instruction of the Consultant
Engineer; and
d The Employer, the Contractor, the Quantity Surveyor and the Consultant
Engineer shall operate an Early Warning system, whereby the Employer, the
Contractor, the Quantity Surveyor and the Consultant Engineer shall notify
the others as soon as they are aware of any matter adversely affecting or
threatening the Works or the Contractor’s or the Employer’s performance
under the Building Contract, and (within the scope of its agreed role, expertise
and responsibilities) shall include in such notification proposals for avoiding
or remedying such matter.
4 Key Dates Schedule (if applicable)
The defined terms used in this clause shall, unless defined in this Contract, have the
meaning as given to them in the Building Contract.
a If stated to be applicable in Article 10 of the Contract Agreement, the
Employer, the Contractor, the Quantity Surveyor and the Consultant Engineer
shall agree the Key Dates Schedule, which shall from part of the Building
Contract and the Consultant Engineer shall comply with the Key Dates
Schedule which shall identify the following:
i times for Completion of particular Sections and parts of the Works, and
dates/periods for agreed pre-conditions and procedures for Site
access/possession, for the issue of Taking Over Certificates and for
inspections, tests and commissioning;
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ii deadlines for preparation and issue of all remaining Drawings and
Specifications and other documents necessary for the Works to be executed
and deadlines for submission by the Contractor of all Drawings and
Specifications and other documents required by the Engineer from the
Contractor (and its Sub-Contractors) and otherwise necessary for the
Engineer to complete its own Drawings and Specifications and other
documents;
iii in relation to each Provisional Sum, deadlines for the preparation of all
remaining Drawings and Specifications and other documents with further
periods of time for the Contractor to invite Sub-Contractor bids, for those bids
to be reviewed and approved by the Employer and for the Engineer to
authorise the Provisional Sum item.
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THE THIRD SCHEDULE
THE CONSULTANT ENGINEER'S PROGRAMME
The Consultant Engineer shall complete the Supervisory duties in accordance with a
detailed programme to be approved by the Employer based on an estimated total
construction period of [ ] ([ ]) months and a subsequent maintenance period
of [ ] ([ ]) months.
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THE FOURTH SCHEDULE
THE CONSULTANT ENGINEER’S REMUNERATION
OPTION - 1
In consideration of the due and diligent performance of the Services the Employer shall pay the
Consultant Engineer a total inclusive fee made up as follows:
a a sum equivalent to the lesser of [ ] percent [ %] of the actual cost of the
execution of the Project/and BD [ ].
b On the issue by the Consultant Engineer of the final payment certificate upon
the expiry of the maintenance period following the completion of the Project,
the actual cost of the execution of the Project shall be agreed between the
Employer and the Consultant Engineer and in the event that the Consultant
Engineer have been paid more or less than the sum referred to in paragraph a
of Option 1 then the difference shall be paid as appropriate by the Employer
to the Consultant Engineer in the event of an underpayment or by the
Consultant Engineer to the Employer in the event of an overpayment within a
period of sixty (60) days from the issue of the said final payment certificate.
c The agreed fee shall be payable monthly in arrears.
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OPTION - 2
a man/month rates in accordance with the scale of supervision rates approved
for the time being by H.E. the Minister of Works throughout the
original/extended construction period of the Construction Contract in respect
of each month that each of the listed members of the supervisory staff of the
Consultant Engineer is employed exclusively full time on the Project together
with a sum equivalent to the lesser of ten percent (10%) of the monthly total
man supervision rates and BD 3000/- in respect of local administrative costs.
The approved scale of supervision rates for the time being is as follows:
SUPERVISION RATES
EFFECTIVE FROM [ ]
MAN/MONTH RATES
LEVEL
SUPERVISION
CATEGORIES
LOCAL EXPATRIATE
(BD) (BD) (QUALIFICATION)
1 PROJECT MANAGER
2 RESIDENT ENGINEER
3 SENIOR ENGINEER
4 ENGINEER
QUANTITY SURVEYOR
5 LAND SURVEYOR
JUNIOR ENGINEER
6 SENIOR INSPECTOR
7 INSPECTOR
b After award of contract and until completion of the Works, payment shall be
calculated as above in this Schedule.
c The fee described shall be payable monthly in arrears throughout the
construction period of the construction contract.
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GENERAL
a The above fees are fully inclusive of all costs and overheads that the
Consultant Engineer may incur at any time during the performance of the
Services.
b The above fees shall be payable in Bahrain Dinars, unless otherwise agreed
between the parties, within forty-two (42) days from the presentation to the
Employer by the Consultant Engineer of itemised invoices in the appropriate
amounts.
STANDARD
CONTRACT AGREEMENT
AND CONDITIONS OF CONTRACT
2009
PRE AND POST CONTRACT ENGINEERING SERVICES
Copyright-Ministry of Works ConsultEngPrePost09
CONDITIONS OF CONTRACT
PRE AND POST CONTRACT ENGINEERING SERVICES
CONTENTS
FORM OF CONTRACT AGREEMENT 1
CONDITIONS OF CONTRACT
1. Definitions 5
2. Interpretation 7
RESPONSIBILITIES OF THE CONSULTANT ENGINEER
3. Scope of Services 8
4. Duty of Care and Exercise of Authority 9
RESPONSIBILITIES OF THE EMPLOYER
5. Information Supplied by the Employer 10
PERSONNEL
6. Representatives 10
7. Appointment and Replacement of Staff 10
SECURITY
8. Performance Bond 11
COMMENCEMENT, COMPLETION AND TERMINATION
9. Contract Effective 11
10. The Consultant Engineer's Programme 11
11. Further Proposals 12
12. Delays 12
13. Abandonment Suspension or Termination 12
13.1 By Notice of the Employer 12
13.2 By Notice of the Consultant Engineer 13
13.3 Rights and Liabilities 14
13.4 Obligations at Termination 14
THE CONSULTANT ENGINEER'S REMUNERATION
14. Payment to the Consultant Engineer 15
15. Additional Services 15
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16. Currency of Payment 16
17. Independent Audit 16
INSURANCES
18. Indemnity & Insurance 16
18.1 Indemnity 16
18.2 Insurance 17
GENERAL PROVISIONS
19. Law of Contract 18
20. Laws, Notices, Permits and Charges 18
21. Intellectual Property Rights 18
22. Trainees 19
23. Assignment and Subletting 19
24. Confidentiality 20
25. Notices 20
DISPUTES
26.1 Settlement of Disputes 20
26.2 Mediation (if applicable) 21
26.3 Arbitration 22
ANNEX 1 Form of Performance Bond 23
ANNEX 2 Form of Key Dates Schedule 25
ANNEX 3 Standard Form for Request for Payment by Bank Transfer 28
THE FIRST SCHEDULE - THE PROJECT 31
THE SECOND SCHEDULE - THE SERVICES 32
THE THIRD SCHEDULE - THE CONSULTANT ENGINEER'S
- PROGRAMME 40
THE FOURTH SCHEDULE - THE CONSULTANT ENGINEER'S
REMUNERATION 41
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FORM OF CONTRACT AGREEMENT
(PROJECT TITLE)
CONTRACT NUMBER: [ ]
THIS CONTRACT AGREEMENT is made the [ ] day of [ ] 20 [ ]
BETWEEN
1) THE GOVERNMENT OF THE KINGDOM OF BAHRAIN as represented by the
MINISTRY OF WORKS of P.O. BOX 5, Bahrain (the Employer);
and
2) [ ] of P.O. BOX [ ] Bahrain,
Commercial Registration Number [ ] (the Consultant Engineer).
WHEREAS the Employer intends to proceed with the development of the project described in
the First Schedule hereto (the Project) and has requested the Consultant Engineer to undertake
and perform the services described in the Second Schedule hereto (the Services) which the
Consultant Engineer has agreed to do for the Remuneration upon and subject to the terms and
conditions set out in this Contract.
NOW IT IS AGREED as follows:
1 In this Contract Agreement words and expressions shall have the same meaning as in
the Conditions of Contract hereinafter referred to.
2 The following documents shall form and be read as the Contract:
a this Contract Agreement
b the Conditions of Contract
c the Key Dates Schedule [Delete if not applicable]
d the Letter of Award [Delete if not applicable]
3 In the event of any conflict or discrepancy between any other documents comprising
the Contract and any of the terms of this Contract Agreement the terms of this
Contract Agreement shall prevail.
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4 The following Schedules (the Schedules) shall form part of and shall be read and
construed in conjunction with this Contract Agreement:
a First Schedule - the Project
b Second Schedule - the Services
c Third Schedule - the Consultant Engineer's Programme
d Fourth Schedule - the Consultant Engineer's Remuneration
5 Notwithstanding any of the terms set out in this Contract Agreement the Schedules
shall have full effect as terms of this Contract Agreement and in the case of any
conflict or discrepancy between any of the Schedules and any of the terms of this
Contract the Schedules shall prevail.
6 The Employer hereby appoints the Consultant Engineer and agrees to pay the
Consultant Engineer the Remuneration for the provision and execution of the
Services or such other sums as may become due under the Contract.
7 In consideration of the Remuneration to be paid by the Employer to the Consultant
Engineer, the Consultant Engineer hereby covenants with the Employer to provide,
execute, and complete the Services in all respects with the provisions of this
Contract.
8 The Consultant Engineer hereby warrants to the Employer:
a that he will comply with the Laws or where these are not available the
appropriate international standards duly approved by the Employer (including,
where appropriate, COEPP),
b that in the case of breach by the Consultant Engineer of this undertaking the
Employer shall have the right to terminate the Contract without prejudice to
any other remedies available to the Employer under this Contract Agreement,
and
c that the performance of the Services will conform strictly to the standards laid
down in the Contract and if no such standards are laid down to the best
accepted international standards of current professional practice.
9 The amount of third party insurance cover required under Clause 18.2a of the
Conditions of Contract shall be not less than Bahrain Dinars [ ] (BD [ ]) for any one
incident with the number of incidents unlimited and the amount of professional
indemnity insurance required under Clause 18.2b of the Conditions of Contract shall
be not less than Bahrain Dinars [ ] (BD [ ]) for any one claim, with the number of
claims unlimited.
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10 The Key Dates Schedule set out in Annex 2 to the Conditions of Contract shall apply
and the Employer and the Consultant Engineer shall adhere to the Schedule. [Delete
if not applicable].
11 The Core Group and Early Warning provisions set out in the Second Schedule of the
Conditions of Contract shall apply and the Consultant Engineer shall participate in
the Core Group (in accordance with the Second Schedule of the Contract) from the
date of this Contract and the members of the Core Group shall be:
For the Employer -
For the Contractor -
For the Consultant Engineer –
For the Quantity Surveyor -
If the Contractor and/or the Quantity Surveyor has not been appointed, their identity
and their Core Group member shall be notified to the Consultant Engineer following
their appointment. Upon notification to the Consultant Engineer the relevant party
shall become a member of the Core Group.
[Delete if not applicable]
12 Clause 26.2 of the Conditions of Contract shall apply and any dispute or difference
may be referred by either party to mediation by a mediator to be appointed by [
] who shall conduct the mediation in accordance with Clause 26.2. [Delete if not
applicable]
13 Clause 8 of the Conditions of Contract shall apply and the Consultant Engineer is
required to provide a Performance Bond for [ ]/Clause 8 shall not apply.
[Delete as applicable]
14 Pursuant to Clause 14.4 the rate of interest on overdue payments shall be [ ] per cent
([ ]%) per annum.
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IN WITNESS whereof the authorised representatives of the Employer and the Consultant
Engineer have signed this Contract Agreement on the date stated at the beginning of this
Contract Agreement.
SIGNED for and on behalf of
THE KINGDOM OF BAHRAIN
MINISTRY OF WORKS
in the presence of:
SIGNED for and on behalf of
The Consultant Engineer
in the presence of:
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CONDITIONS OF CONTRACT
1 Definitions
1.1 The following words and expressions shall have the meanings assigned to them
except where the context otherwise requires:
Additional Services means Services requested by the Employer that are in addition
to those described in the Second Schedule hereto and as referred to in Clause 15
hereof.
approved means approved in writing and approval means approval in writing.
Authority means any duly constituted authority in Bahrain.
Bahrain means the Kingdom of Bahrain.
Building Contract means the contract entered into between the Employer and the
Contractor(s).
COEPP means the Bahrain Committee for Organising Engineering Professional
Practice.
Conditions of Contracts means these conditions of contract.
Contract means the Contract Agreement, the Conditions of Contract and the
Schedules attached to the Conditions of Contract.
Contractor means a person or company appointed by the Employer to execute the
Works (including the goods and equipment to be supplied by the Employer) for the
achievement of the Project and so notified to the Consultant Engineer.
Consultant Engineer means the party named in this Contract, who is employed as
an independent professional firm by the Employer to perform the Services and legal
successors to the Consultant Engineer and permitted assignees.
Core Group if stated in Article 11 of the Contract Agreement to be applicable, the
Core Group shall be formed of the individuals identified in Article 11 of the Contract
Agreement as Core Group members, subject only in each case to replacement in
accordance with the Second Schedule and the Core Group will carry out the functions
set out in the Second Schedule and references to the Core Group shall apply to each
and all Core Group members.
day means the twenty-four (24) hour period between any one midnight and the next.
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Early Warning if stated in Article 11 of the Contract Agreement to be applicable,
means early warning in accordance with the system described in the Second Schedule
Employer means the party named in this Contract who employs the Consultant
Engineer and legal successors in title to the Employer and permitted assignees.
Intellectual Property Rights means all intellectual property rights (including
without limitation patents, trademarks, designs, design rights, copyright, inventions,
trade secrets, know-how and confidential information) and all applications for
protection of any of the same.
Key Dates Schedule if stated in Article 10 of the Contract Agreement to be
applicable, means any key dates schedule as described in the Second Schedule and
forming part of the Contract.
Laws mean all laws applicable to the Contract and the Works including all 'Statutes',
'Decrees', 'Orders', 'Ordinances', 'Regulations' and 'Bye-laws' of any duly constituted
authority in force from time to time in the Bahrain.
month means a period of one month according to the Gregorian calendar
commencing with any day of the month.
National Standard means those current professional standards applicable to the
Consultant Engineer's profession in Bahrain.
party and parties means the Employer and the Consultant Engineer and third party
means any other person or entity as the context requires.
Performance Bond means a performance bond as referred to in Clause 8 and in the
form set out in Annex 1 to the Conditions of Contract.
Project means the project named in the First Schedule.
Quantity Surveyor means the quantity surveyor appointed by the Employer in
relation to the Project and notified to the Consultant Engineer.
Remuneration means the remuneration to be paid by the Employer to the Consultant
Engineer further to the Fourth Schedule or such other sums as may become due under
the Contract.
Request for Payment by Bank Transfer means a request as referred to in Clause
14.3 and in the form set out in Annex 3 to the Conditions of Contract.
Representative means an official directly employed by either party to administer the
Contract as notified to the other party.
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Services means the services to be performed by the Consultant Engineer stated in the
Second Schedule
Value Engineering means a structured system for the review of the design, supply
and construction process to identify options and scope for improvement, including
reduced capital and/or whole-life costs, improved buildability and improved
functionality.
Working Day means Sunday to Thursday inclusive but not including any public
holiday recognised in Bahrain.
Works means the permanent works to be executed (including the goods and
equipment to be supplied by the Employer) for the achievement of the Project.
2 Interpretation
2.1 The headings in these Conditions of Contract shall not be taken into consideration in
the interpretation of the Contract.
2.2 Words used in the singular shall have the same meaning in the plural and vice versa.
2.3 The Contract is to be construed and interpreted in the English language. All
references to dates or periods of time shall be construed in accordance with the
Gregorian calendar.
2.4 References in these Conditions of Contract to Clauses and Schedules shall, unless
otherwise stated, be treated as references respectively to Clauses in and Schedules
annexed to these Conditions of Contract.
2.5 The Contract supersedes all prior contracts, agreements and understandings between
the parties and no change termination or attempted waiver of any of the provisions
hereof shall be binding unless in writing and signed by the party against whom the
same is to be enforced. By entering into the Contract the Consultant Engineer is
deemed to have waived its general terms and/or conditions of business (if any).
2.6 Whenever the date for the performance of any term, condition, obligation, covenant,
agreement or provision required or provided under the Contract falls on a date that is
not a Working Day, such date shall be extended to the next succeeding Working Day.
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RESPONSIBILITIES OF THE CONSULTANT ENGINEER
3 Scope of Services
3.1 The Consultant Engineer shall perform the Services in such a way that they:
a Achieve the purpose to be served by the Project in the most practical and
economical manner.
b Accord with good professional and current practice and take into account the
particular conditions prevailing in Bahrain.
c Adopt only such changes as have been previously approved in writing by the
Employer.
d Adhere to the standard contract documents generally used by the Employer.
e Use the metric system and the English language throughout the performance
of the Services unless otherwise instructed by the Employer.
3.2 The Consultant Engineer shall be responsible for the correctness and soundness of all
documents and drawings prepared by him in connection with the Project. Neither the
approval by the Employer of such documents and drawings nor the failure of the
Employer to discern any defect in or omission from such documents and drawings
shall absolve or relieve the Consultant Engineer of any of his design responsibilities
or other duties and obligations under this Contract.
All such documents and drawings shall be the property of the Employer and shall not
be shown, given or related by the Consultant Engineer to any third party without the
prior written approval of the Employer.
3.3 The Consultant Engineer shall report to the Employer without delay any arising need
for information, investigation or analysis in connection with the Project.
3.4 The Consultant Engineer is obliged to cooperate fully with all other consultants and
experts engaged by the Employer in connection with the Project.
3.5 The Consultant Engineer is obliged to follow all the Employer’s instructions in
relation to the Project but shall inform the Employer immediately in writing if it feels
that any such instruction is contradictory to the efficient execution and completion of
the Project.
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4 Duty of Care and Exercise of Authority
4.1 The Consultant Engineer shall exercise all reasonable skill, care and diligence in the
performance of his obligations under this Contract.
4.2 The Consultant Engineer acknowledges that the Employer shall be deemed to have
relied on the Consultant Engineer’s professional skill and judgement in respect of
those matters relating to the Project which lie within the scope of the Consultant
Engineer’s responsibilities hereunder and that accordingly the Consultant Engineer
owes to the Employer a professional duty of care.
4.3 The Consultant Engineer shall perform the Services in such manner and at such times
that no negligent or intentional act, omission or default by the Consultant Engineer in
relation to the Services shall constitute, cause or contribute to any breach by the
Employer of any of the Employer’s obligations in respect of the Project of which the
Consultant Engineer is aware.
4.4 Where the Services include the exercise of powers or performance of duties
authorised or required by the terms of a contract between the Employer and any third
party, the Consultant Engineer shall:
a Act in accordance with the contract provided that the details of such powers
and duties are acceptable to him where they are not described in the Second
Schedule.
b If authorised to certify, decide or exercise discretion, do so fairly between the
Employer and the third party, not as an arbitrator but in accordance with the
skill and judgement expected from an independent professional advisor.
c If so authorised vary the obligations of any third party, subject to obtaining
the prior approval of the Employer to any variation which can have an
important effect on costs or quality or time (except in any emergency when
the Consultant Engineer shall inform the Employer as soon as practicable).
4.5 The Consultant Engineer shall not accept any trade commission, discount, allowance,
indirect payment or other consideration from any third party in connection with the
Project.
4.6 The Consultant Engineer shall not have the benefit whether directly or indirectly of
any royalty, gratuity or commission in respect of any patented or protected article or
process used on or for the purposes of the Project.
4.7 Subject as hereinafter mentioned the Consultant Engineer shall not specify any
particular trade or proprietary name in any documents or drawings prepared by him
in the course of the performance of the Services. In cases where in order to identify
the type and/or quality of any article or process the use of a trade or proprietary name
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is unavoidable the Consultant Engineer shall nominate at least one such name and
shall add the words “or approved equivalent”. The prior approval of the Employer
shall be obtained to such nomination of a trade or proprietary name.
RESPONSIBILITIES OF THE EMPLOYER
5 Information Supplied by the Employer
5.1 The Employer shall supply the Consultant Engineer in such time as may be
reasonable with the information and data in the Employer's possession as is relevant
to the Services and this Contract. Further to supplying this information and data the
Employer is under no obligation to secure information and data from other sources.
5.2 On all matters properly referred to him in writing by the Consultant Engineer the
Employer shall, within a reasonable period of time, give his decision in writing so as
not to delay the Services.
5.3 The Employer shall not give an instruction to the Consultant Engineer which would
require him to act in a way that is outside his professional code of conduct.
PERSONNEL
6 Representatives
6.1 For the administration of this Contract each party shall designate an official or
individual to be his Representative.
7 Appointment and Replacement of Staff
7.1 The Services shall be performed by skilled, experienced and qualified members of
the Consultant Engineer’s staff who shall have the required permits and licences
issued by the appropriate Authority to work in Bahrain.
7.2 The Consultant Engineer shall submit for the approval of the Employer a complete
résumé of the training, qualifications and experience of each professional member of
the Consultant Engineer’s staff prior to his appointment in connection with the
Services. The Employer’s approval shall not unreasonably be withheld but shall not
relieve the Consultant Engineer of any of his duties and obligations under this
Contract. Following the Employer’s approval no change shall be made in the
Consultant Engineer’s professional staff without the Employer’s further approval,
which shall be duly requested by the Consultant Engineer at least thirty (30) days in
advance of any proposed change unless in the event of an emergency the Employer
shall accept a shorter period of notice.
7.3 Should the Employer for any reason whatsoever be of the opinion that any member
of the staff appointed by the Consultant Engineer is unsatisfactory, the Consultant
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Engineer will upon receipt of written instructions from the Employer immediately
terminate the assignment of such person and make arrangements for a suitable
replacement within thirty (30) days, without in any way interrupting the performance
of the Services during this time.
7.4 Should the Consultant Engineer fail to comply with the Employer’s written
instructions, the Employer reserves the right to withhold payment in respect of the
proportion of the Remuneration that the Employer in his discretion deems attributable
to the unsatisfactory member of staff.
SECURITY
8 Performance Bond
8.1 If Article 13 of the Contract Agreement provides for the Consultant Engineer to
obtain and provide a Performance Bond, then the Consultant Engineer shall have
obtained and provided to the Employer prior to the date of the Contract Agreement
such Performance Bond in the sum stated in the Contract Agreement and
substantially in the form set out in Annex 1.
8.2 If the Consultant Engineer shall fail to comply with Clause 8.1, the Employer shall be
entitled to treat the Contract as repudiated by the Consultant Engineer and upon such
repudiation to recover all loss, cost and expense occasioned by such repudiation.
COMMENCEMENT, COMPLETION AND TERMINATION
9 Contract Effective
9.1 This Contract is effective from the date of the latest signature necessary to complete
this Contract and shall govern the Services performed prior to that date.
10 The Consultant Engineer's Programme
10.1 The Services shall be performed in accordance with the consultant’s programme set
out in the Third Schedule hereto (the Consultant Engineer’s Programme) subject to
extensions in accordance with this Contract.
10.2 Completion of each stage of the Services shall be deemed to occur upon receipt by
the Consultant Engineer of the approval thereof from the Employer.
10.3 If the Consultant Engineer at any time has reason to believe that the Time for
Completion of the Building Contract or the Consultant Engineer's Programme will be
delayed, the Consultant Engineer shall promptly notify the Employer of the fact, of
the expected period of delay, of the cause of the delay and the steps proposed by the
Consultant Engineer to minimise the delay.
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10.4 Subject to any extension of time granted by the Employer in writing to the Consultant
Engineer, if the Consultant Engineer fails to complete any stage of the Services
within the period specified in the Consultant Engineer's Programme, then it should be
liable to pay to the Employer a sum of Bahrain Dinars equivalent to 1% of the
Remuneration of the relevant stage of the Services for each week of delay up to a
maximum of 5% of the Remuneration, being the penalty for delay. The penalty for
delay may be deducted by the Employer from the Consultant Engineer's
Remuneration but shall not relieve the Consultant Engineer from any of its
responsibilities and obligations under this Agreement.
11 Further Proposals
11.1 If requested by the Employer in writing, the Consultant Engineer shall submit
proposals for altering the Services.
12 Delays
12.1 If the Consultant Engineer considers the Services are impeded or delayed by the
Employer or any third party so as to increase the amount or duration of the Services,
the Consultant Engineer shall give immediate notice to the Employer of the
circumstances of such impediment/delay together with the additional Services
required, additional time for completion and associated costs.
12.2 In the event that such notice as described in Clause 12.1 is issued by the Consultant
Engineer the Employer shall review the contents of the notice and confirm his
acceptance in full or in part, which shall not be unreasonably withheld. If approved
by the Employer, the increase shall be regarded as Additional Services and the time
for completion of the Services shall be increased accordingly. If rejected by the
Employer and the parties cannot reach agreement within seven (7) days of the
Employer notifying the Consultant Engineer of his rejection, the matter shall be
determined in accordance with Clause 26.
13 Abandonment Suspension or Termination
13.1 By Notice of the Employer
a The Employer may suspend all or part of the Services or terminate this
Contract by notice of at least thirty (30) days to the Consultant Engineer who
shall immediately make arrangements to stop the Services and minimise
expenditure.
b If the Employer considers that the Consultant Engineer is without good reason
not discharging his obligations he can inform the Consultant Engineer by
notice stating the grounds for the notice. If a satisfactory reply is not received
within fourteen (14) days the Employer can by a further notice terminate the
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appointment of the Consultant Engineer under this Contract with immediate
effect.
c In the event that the whole or any part of the Project shall be postponed or
abandoned by the Employer, then the payment to be made to the Consultant
Engineer for the Services performed in respect of that part of the Project so
postponed or abandoned shall be calculated on the basis of the Remuneration
according to the proportion of the Services which has been wholly or partially
performed by the Consultant Engineer at such time. If the Project is finally
abandoned, then such payment shall be accepted by the Consultant Engineer
in full and final settlement of his entitlement to the Remuneration.
d If within one (1) year of its postponement the Employer shall wish to resume
the development of the postponed whole or part of the Project then any
payments made to the Consultant Engineer pursuant to this Clause shall rank
as payments on account and the Consultant Engineer shall be obliged to
resume the performance of the Services in accordance with the Contract and
the Employer shall pay the Consultant Engineer's Remuneration in
accordance with Schedule 4.
e If in the second year of its postponement the Employer shall wish to resume
the development of the postponed whole or part of the Project then any
payments made to the Consultant Engineer pursuant to this Clause shall rank
as payments on account and the Consultant Engineer shall be obliged to
resume the performance of the Services in accordance with the Contract and
the Consultant Engineer's Remuneration shall be revised by the parties
(subject to the approval of both parties). In the event that the Project or any
part thereof shall be postponed for a period longer than two (2) years then the
Contract or such part thereof shall, immediately on service of notice by the
Employer, be considered to have been abandoned.
13.2 By Notice of the Consultant Engineer
a After giving at least thirty (30) days notice to the Employer, the Consultant
Engineer can by a further notice of fourteen (14) days terminate this Contract,
or at his discretion without prejudice to the right to terminate, can suspend or
continue suspension of performance of the whole or part of the Services:
i when twenty-eight (28) days after the due date for payment in accordance
with Clause 14.1 of this Contract, of an invoice it has not received payment of
that part of it which has not, by that time, been contested in writing by the
Employer;
ii when Services have been suspended under Clause 13.1 and the period of
suspension has exceeded one (1) year; or
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iii if circumstances arise beyond the control of the Consultant Engineer which
the Consultant Engineer could not reasonably have foreseen and which make
it impossible for it to perform in whole or in part the Services in accordance
with this Contract
b provided that should the Employer’s default be remedied within such notice
period then this Contract shall automatically remain in full force and effect.
13.3 Rights and Liabilities
a If this Contract is terminated by either of the parties hereto in accordance with
the provisions of Clauses 13.1 and 13.2 above then the Employer shall have
the right to receive and use the originals of all documents and drawings
prepared by the Consultant Engineer prior to the date of such termination
providing the Consultant Engineer has received the Remuneration due to him
pursuant to Clause 13.1 c above.
b Termination of this Contract shall not prejudice or affect the accrued rights or
claims and liabilities of the parties.
13.4 Obligations at Termination
In the event that the Employer has appointed another consultant to complete the
Services following termination of the Consultant Engineer’s appointment under this
Contract by either party the Consultant Engineer shall:
a co-operate fully with such consultant for the orderly transfer of the Services;
and
b deliver to the Employer within two (2) weeks from the date of notice issued
by the Employer confirming that another consultant has been appointed all
documents and other work prepared by the Consultant Engineer pursuant to
this Contract.
If the Consultant Engineer does not comply with its obligations under this Clause
13.4 the Employer shall be entitled to withhold any monies owed to the Consultant
Engineer under this Contract.
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THE CONSULTANT ENGINEER’S REMUNERATION
14 Payment to the Consultant Engineer
14.1 In consideration of the due and diligent performance of the Services by the
Consultant Engineer in accordance with the Contract the Employer shall pay to the
Consultant Engineer the Remuneration in accordance with the provisions of the
Fourth Schedule and within forty-two (42) days from the presentation to the
Employer by the Consultant Engineer of itemised invoices in the amount agreed by
the Employer and the Consultant Engineer (the due date).
14.2 All costs, penalties, damages or expenses for which under this Contract the
Consultant Engineer is liable to the Employer may be deducted by the Employer
from any monies due or becoming due to the Consultant Engineer under this Contract
or may be recovered by action at law or otherwise from the Consultant Engineer.
14.3 If the Consultant Engineer wishes payment of any monies due under this Contract to
be made to his bank then it shall arrange for its bank to complete and shall then itself
complete and deliver to the Employer a Form of Request for Payment by Bank
Transfer in the form set out in Annex 3. Any such payment by the Employer to the
Consultant Engineer’s bank shall be subject to and on the basis of the conditions and
provisions set forth in the Form of Request for Payment by Bank Transfer.
14.4 In the event of failure by the Employer to make payment in accordance with Clauses
14.1, 14.2 and 14.3, the Employer shall pay to the Consultant Engineer interest upon
any overdue payment at the rate stated in Article 14 of the Contract Agreement from
the latest date when the payment should have been made.
15 Additional Services
15.1 The Employer may at any time require the performance by the Consultant Engineer
of Additional Services in relation to the Project, which additional services the
Consultant Engineer shall duly perform in consideration of appropriate additional
remuneration to be mutually agreed in writing in advance between the parties hereto.
15.2 The above Additional Services shall not include the correction or re-execution of all
or any part of any stage of the Services in the event that such correction or re-
execution is required by the Employer as a result of the action, inaction, default or
negligence of the Consultant Engineer or any member of his staff.
15.3 In the event that after the completion of any stage of the Services the Employer shall
require the complete or partial modification of any aspect of the Services by virtue of
a revision of the design brief or of the Employer’s requirements in relation to the
Project then such modification shall constitute Additional Services and shall attract
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additional remuneration as shall be mutually agreed in writing in advance between
the parties hereto.
15.4 In the event that the whole or any part of the Project shall be damaged or destroyed
before its completion then provided such damage or destruction is not attributable to
the action, inaction, default or negligence of the Consultant Engineer or any member
of his staff, any Additional Services required by the Employer to be performed by the
Consultant Engineer as a result of such damage or destruction shall attract such
additional remuneration as shall be mutually agreed in writing in advance between
the parties hereto.
16 Currency of Payment
The currency applicable to this Contract is Bahrain Dinars, unless otherwise agreed
between the parties.
17 Independent Audit
17.1 Except where this Contract provides for lump sum payments, the Consultant
Engineer shall maintain up-to-date records which clearly identify relevant time and
expense.
17.2 Except where this Contract provides for lump sum payments, not later than twelve
(12) months after the completion of the Services, the Employer can at notice of not
less than seven (7) days require that a reputable firm of accountants nominated by
him audit any amount claimed by the Consultant Engineer by attending during
normal working hours at the office where the records are maintained.
INSURANCES
18. Indemnity and Insurance
18.1 Indemnity
The Consultant Engineer shall be liable for and shall indemnify the Employer against
any expense, liability, loss, claim or proceedings whatsoever in respect of death or
personal injury to any person or material or physical loss of or damage to any
property whatsoever which may arise out of or in consequence of the performance of
the Contract unless due to any act or neglect of the Employer or of any person for
whom the Employer is responsible.
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18.2 Insurance
a Third Party Insurance
Without prejudice to its liability to indemnify the Employer under Clause 18.1
the Consultant Engineer shall on or before the date of Contract in the joint
names of the Employer and the Consultant Engineer take out insurances for at
least the amount stated in Article 9 of the Contract Agreement against its
liability for any death of or injury to any person (including any employee of
the Employer) or any damage or loss to any property (including any property
of the Employer) caused by or arising out of or in consequence of the
execution of the Contract and as are necessary to cover the liability of the
Consultant Engineer under Clause 18.1. Such insurance shall include cross
liability clauses indemnifying each of the jointly insured against claims made
on it by the other.
b Professional Indemnity Insurance
The Consultant Engineer shall take out and maintain professional indemnity
insurance, without unusual or onerous conditions attached to it, in the amount
stated in Article 9 for any one claim with number of claims unlimited,
commencing no later than the date of the Contract Agreement and ending ten
(10) years after the date the last of the Services was completed .
c Recognised Insurers
The insurance policies required under Clause 18 shall be taken out with one of
the insurance companies for the time being recognised by the Employer in
terms approved by the Employer, which approval shall not be unreasonably
withheld and the Consultant Engineer shall ensure the continued adequacy of
the insurances at all times in accordance with the terms of the Contract.
d Insurance Policies
As and when required so to do by the Employer the Consultant Engineer shall
produce for inspection the insurance policies required under Clause 18 and the
receipts for payment of the current premiums and in default of the Consultant
Engineer so insuring or continuing to insure as required the Employer may
itself insure against any risk with respect to which the default shall have
occurred and may deduct a sum or sums equivalent to the amount paid or
payable in respect of such premiums from any monies due or to become due
to the Consultant Engineer, or recover the same as a debt due from the
Consultant Engineer. The Employer reserves the right to suspend all or part of
the Services by immediate notice to the Consultant Engineer until the
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Consultant Engineer takes out such insurances. Any costs incurred by the
Employer as a result of such suspension shall be borne by the Consultant
Engineer and such suspension shall not entitle the Consultant Engineer to an
extension of the Consultant Engineer's Programme or any additional
Remuneration.
18.3 The above insurance policies shall in no way limit the liability of the Consultant
Engineer under this Contract.
GENERAL PROVISIONS
19 Law of Contract
This Contract is made in Bahrain and is subject to the laws of Bahrain.
20 Laws, Notices, Permits and Charges
The Consultant Engineer shall give all notices and shall obtain all visas, licences and
permits as may be required by the relevant Laws and shall pay all appropriate charges
and fees therefore and shall pay all such custom duties, levies and taxes as may be
required by Law and shall keep the Employer indemnified against all penalties and
liability of every kind for breach of any such Laws.
21 Intellectual Property Rights
21.1 The Consultant Engineer warrants to the Employer that no design or document that it
prepares and nothing else that it contributes to the Works shall infringe any
Intellectual Property Rights, and undertakes to indemnify the Employer in respect of
any legal liability and related costs arising out of or in connection with any such
infringement of any Intellectual Property Rights.
21.2 The Consultant Engineer shall retain Intellectual Property Rights in all documents
that it prepares in relation to the Works, and as beneficial owner grants to the
Employer an irrevocable non-exclusive royalty-free licence to copy and use all such
designs and documents for any purpose relating to completion and use of the Works,
in all cases with the right to transfer and sub-licence such rights for the same
purposes, and shall ensure that such licence shall have the support of such rights from
third parties as are necessary to allow the grant of such licence.
21.3 The Consultant Engineer shall not be liable for the use of any document that it
prepares for any purpose other than for which it was agreed to be prepared as stated
in, or reasonably inferred from, the Contract.
21.4 Subject to the Intellectual Property Rights described in Clause 21.2, ownership in all
the existing documents and other physical embodiments of designs relating to the
Works shall transfer from the Consultant Engineer to the Employer immediately prior
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to the Consultant Engineer suffering an event of termination of his employment as
described in Clause 13. In such circumstances, the Consultant Engineer shall hand
over all such documents and designs to the Employer immediately upon request.
21.5 In the event of any claim being made or action being brought against the Employer
arising out of the matters referred to in this Clause 21 the Consultant Engineer shall
be promptly notified thereof and may at his own expense conduct all negotiation for
the settlement of the same and any litigation that may arise therefrom. The Employer
shall not unless and until the Consultant Engineer shall have failed to take over the
conduct of the negotiations or litigation make any admission which might be
prejudicial upon the Consultant Engineer having first given to the Employer such
reasonable security as shall from time to time be required by the Employer to cover
the amount ascertained or agreed or estimated as the case may be of any
compensation, damages, expenses and costs for which the Employer may become
liable in respect of such infringement as aforesaid. The Employer shall, at the request
of the Consultant Engineer, afford all available assistance for the purpose of
contesting any such claim or action and shall be repaid any expenses incurred in so
doing.
22 Trainees
The Employer reserves the right during any stage of the Services to appoint any
reasonable number of suitably qualified trainees to be trained by the Consultant
Engineer. All salaries and costs in respect of such trainees shall be borne by the
Employer and the Consultant Engineer shall be reimbursed net, upon production of
invoices, any direct additional costs arising provided that any such costs shall be
approved in advance by the Employer.
23 Assignment and Subletting
23.1 The Consultant Engineer shall not, without the prior consent of the Employer, assign
or transfer the benefit or duties of this Contract or any part thereof provided that it
shall be lawful for the Consultant Engineer at any time to take into partnership
another partner or partners whereupon it or they or the survivors of them shall
thenceforth automatically be deemed to be included in the expression “the Consultant
Engineer” for all the purposes of this Contract.
23.2 Notwithstanding the provisions of Clause 23.1 above the Consultant Engineer may
subject to the prior approval of the Employer sub-let to a specialist sub-consultant
any part of the Services which is customary or of necessity and because of its nature
required to be performed by such a specialist sub-consultant. The provisions of
Clause 23.1 above shall apply to the staff of any approved specialist sub-consultant
but the Employer’s approval of any specialist sub-consultant or any member of the
staff of such specialist sub-consultant shall in no way relieve the Consultant Engineer
of any of its duties and obligations under this Contract.
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24 Confidentiality
The Consultant Engineer shall not, except where strictly necessary for the purposes
of the Contract, during or after the expiry of this Contract disclose or suffer any
employee of the Consultant Engineer to disclose to any person whatsoever any
information of which the Consultant Engineer or any such employee has or shall
hereafter become possessed by virtue of this Contract. The Consultant Engineer shall
keep with inviolable secrecy any document or drawings supplied by the Employer
pursuant to this Contract and shall not use the same except in the performance of the
Services.
25 Notices
25.1 Any notice to be given under the terms of this Contract shall be properly served by
sending the same by registered mail or fax to the following respective addresses and
fax numbers of the parties hereto:
The Employer:
Attn:
Fax.
The Consultant Engineer:
Attn:
Fax.
25.2 The parties hereto shall promptly notify one another of any change of address or fax
number.
DISPUTES
26.1 Settlement of Disputes
If any dispute or difference of any kind whatsoever shall arise between the Employer
and the Consultant Engineer in connection with or arising out of the Contract
(whether during the progress of the Contract or after its completion and whether
before or after any determination abandonment or breach of the Contract) both
parties shall endeavour to amicably resolve the dispute. Unless the Contract shall
have already been determined or abandoned the parties shall in every case continue to
proceed with the Services unless and until the same shall be referred to Mediation
pursuant to Clause 26.2 (if stated in Article 12 of the Contract Agreement to apply)
or an Arbitration Committee as appointed in accordance with Clause 26.3.
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26.2 Mediation (if applicable)
If this Clause 26.2 is stated to be applicable in Article 12 of the Contract Agreement
and if the parties are unable to reach agreement on any matter then the matter shall
immediately be referred by the parties to a neutral mediator (the Mediator) whose
costs shall be paid in equal shares by the parties and the following clauses shall
apply:
a if the parties are unable to agree on the choice of a Mediator, or if the chosen
Mediator is unable or unwilling to act, then either party may immediately
apply to the organisation stated in Article 12 of the Contract Agreement, to
appoint a Mediator;
b the parties shall, within fourteen (14) days of the appointment of a Mediator,
or any other such period as the parties may subsequently agree, jointly meet
with it to agree a programme for the exchange of any relevant information and
the structure to be adopted for the negotiations;
c all negotiations shall be conducted in confidence and are not to be referred to
in any concurrent or subsequent proceedings, unless they conclude with a
written legally binding agreement. If the parties accept the Mediator's
recommendations, or otherwise reach agreement on the resolution of the
dispute, such agreement shall be recorded in writing and, once signed by the
designated representatives, shall be binding on the parties;
d if no agreement is reached, either party may invite the Mediator to provide to
both parties a non-binding opinion in writing. Such opinion shall not be used
in evidence in any concurrent or subsequent proceeding without the prior
written consent of both parties;
e the parties shall bear their own costs of preparing and submitting evidence to
the Mediator. If the Mediator finds that the mediation has been initiated or
conducted frivolously or vexatiously, then it shall have the power to order the
party so initiating or conducting the mediation to pay the reasonable costs of
the other party for preparing for and attending the mediations and if the costs
cannot be agreed, they shall be assessed by the Mediator, whose decision shall
be binding on the parties; and
f if the parties fail to reach agreement within twenty-eight (28) days of the
Mediator being appointed, or such other period as the parties may agree, then
both parties shall be entitled to submit the dispute to arbitration under the
terms of Clause 26.3. With the agreement of the parties, the Mediator shall
record those facts that the parties have agreed. All other matters in dispute
shall be referred to an Arbitration Committee who shall be allowed access to
the recorded and agreed facts. The Mediator's role shall cease on the
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appointment of the Arbitration Committee. The Mediator shall not be
available to appear as a witness in the arbitration, or to provide any additional
evidence obtained during the mediation.
26.3 Arbitration
If either the Employer or the Consultant Engineer is dissatisfied with the process of
resolving the dispute amicably and the option of Mediation as defined in Clause 26.2
is not applicable, (if stated in Article 12 of the Contract Agreement to be not
applicable) then either the Employer or the Consultant Engineer may require that the
matter be referred to the arbitration of an arbitration committee (the Arbitration
Committee) to be formed of three (3) members in the following manner: the
Employer and the Consultant Engineer shall each appoint one member thereto: if one
party fails so to appoint within fifteen (15) days of being requested by the other party
so to do, H.E. Minister of Justice of the Kingdom of Bahrain (upon a written request
from the party who has so appointed a member) shall appoint a member for the party
who has so failed to appoint. The third member, who shall be the Chairman of the
Arbitration Committee, shall be appointed reasonably promptly by agreement
between the other two members; if such agreement is not reached within fifteen (15)
days after their appointment, the said H.E. Minister of Justice of the Kingdom of
Bahrain shall appoint the third member upon the request of either party.
In any arbitration:
a the award of the Arbitration Committee shall be reached if not unanimously
by a majority of the Arbitration Committee;
b the award of the Arbitration Committee shall be final and binding on the
parties;
c the costs of the arbitration shall be within the discretion of the Arbitration
Committee; and
d such arbitration shall take place in Bahrain and shall be conducted in the
English Language.
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ANNEX 1
TO CONDITIONS OF CONTRACT
FORM OF PERFORMANCE BOND
(see Clause 8 of the Conditions of Contract)
To be engrossed on Insurance Company / Bank headed paper and addressed to the Employer.
No terms shall be deleted from this Performance Bond nor shall any terms be added
Bank Ref: Dated:
Dear Sirs,
Performance Bond Number:
Project:
Consultant Engineer:
Date of Contract:
In consideration of you, [ ] (the Employer) having agreed to enter into the
above contract (the Contract) with [ ] (the Consultant Engineer), we, the [
] Insurance Company / Bank of [ ] irrevocably and unconditionally guarantee
to the Employer subject to the terms below, that the Consultant Engineer shall perform and
fulfil all undertakings, covenants, terms and conditions of the Contract for [ ] (the
Services) and any extensions of the Contract, and that the Consultant Engineer shall well and
truly perform and fulfil all the undertakings, covenants, terms and conditions of the Contract
and all changes, modifications, additions or amendments to the Contract that may be made, and
that the Consultant Engineer shall also fully indemnify, defend and hold harmless the Employer
from all costs, liability and damage which the Employer may suffer by reason of the failure of
the Consultant Engineer so to do.
In the event that the Employer, in its absolute discretion, gives written notice to us at any time
of the failure of the Consultant Engineer to perform or fulfil any of the acts or obligations set
out in the above paragraph, we unconditionally and irrevocably undertake, without any right of
set off or counterclaim whether on our behalf or on behalf of the Consultant Engineer, to pay to
the Employer the sum of BD[ ] ([ ]) being an amount equal to [ ] per cent ([
]%) of the price recorded in the Contract. Such written notice of the Employer shall
be conclusively binding on us for all purposes under this Performance Bond.
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We further agree that any change, modification, addition or amendment which may be made to
the terms and conditions of the Contract, or to the Services to be performed pursuant to the
Contract, or to the payments to be made on account pursuant to the Contract, or any extension
of the time of performance of the Services or any settlement, promise not to sue or other action
on the part of either the Employer or the Consultant Engineer to the other shall not in any way
release us from our continuing liability under this Performance Bond, and we expressly waive
our right to consent to or to receive notice of any such change, modification, addition,
amendment, extension, settlement, promise or action.
This Performance Bond shall be valid until the [ ] day of [ ] 20[ ].
This Performance Bond shall be governed by and interpreted under the Laws of the Kingdom of
Bahrain. It shall be returned to us on its expiry.
SIGNED
(as appropriate by properly authorised officials for and on behalf of the guaranteeing
Bank / Insurance Company)
To:
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ANNEX 2
TO CONDITIONS OF CONTRACT
(Delete if not applicable)
Form of Key Dates Schedule
(see Article 10 of the Contract Agreement )
Activity Responsible
party
Relevant
Dates/Periods of
Time
Comments
1 Possession and Taking
Over of the Works and
each Section of the
Works
• Commencement of
Works/each Section
• Date for Completion of
Works/each Section
• Preconditions for
commencement of
Works/each Section and
Site access and
possession/issue of
Taking Over Certificate
• Procedures for
commencement of
Works/each Section and
Site access and
possession
• Procedures for
inspections, tests,
commissioning and
issue of Taking Over
Certificate for
Works/Sections
2 Restrictions caused by
work being carried out
by other contractors
• Dates/periods when
parts of Site shall be
unavailable
• Dates/periods when
parts of Site shall be
subject to restricted
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Activity Responsible
party
Relevant
Dates/Periods of
Time
Comments
access
• Relevant procedures
3 Deadlines for
preparation and issue of
remaining Drawings and
Specifications and other
documents necessary for
the Works/each Section
to be constructed
• Deadlines for Drawings
and Specifications and
other documents
required by the
Engineer from the
Contractor (and its
relevant Sub-
Contractors)
• Period for approval by
the Engineer of
Drawings and
Specifications and other
documents as submitted
• Related Drawings and
Specifications and other
documents of the
Engineer to be
completed utilising
Drawings and
Specifications and other
documents submitted by
the Contractor
• Remaining Drawings
and Specifications and
other documents to be
issued to the Contractor
by the Engineer
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Activity Responsible
party
Relevant
Dates/Periods of Time
Comments
4 Provisional Sums
• Deadlines for
preparation of
remaining Drawings and
Specifications and other
documents required for
each Provisional Sum
item
• Periods for the
Contractor to invite
Sub-Contractors to bid
against completed
design information
• Periods for Sub-
Contractors' bids to be
reviewed and approved
by the Engineer
• Deadline for the
Engineer to authorise
relevant Provisional
Sum item
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ANNEX 3
TO CONDITIONS OF CONTRACT
STANDARD FORM OF
REQUEST FOR PAYMENT BY BANK TRANSFER
To be engrossed on Consultant Engineer’s headed paper and addressed to the Employer.
No terms shall be deleted from this Request nor shall any terms be added
To: The Employer
Re: Project Name:
Contract No.
Consultant Engineer:
Dear Sirs,
We refer to the Contract dated [ ] for [ ]
(the Contract) between you (the Employer) and us (the Consultant Engineer). We have
made no previous request to the Employer regarding the method of payment of monies falling
due under the Contract (the Contract Proceeds).
We hereby request and authorise you to pay as from the date at this Request the Contract
Proceeds into our Account No.[ ] with [ ] (the
Bank).
In submitting this authority and Request it is hereby agreed as follows:
a the receipt of the Bank shall constitute a complete discharge in favour of the
Employer of all payments so made;
b the Consultant Engineer undertakes to raise no claim in respect of and to accept
liability for and to indemnify and hold harmless the Employer from any and all
claims made by third parties including the Bank and from any and all costs and
losses arising in connection with:
Copyright-Ministry of Works ConsultEngPrePost09 29
i the making by the Employer of any payments of the Contract Proceeds to
the Bank pursuant to this authority and Request;
ii the failure of the Employer howsoever caused to commence, continue or
cease making any payments of the Contract Proceeds to the Bank
pursuant to this authority and Request provided that in such case payment
is otherwise made as required by law or order of the Courts of the
Kingdom of Bahrain.
c This authority and Request neither is nor constitutes notice of and assignment of the
Contract Proceeds in favour of the Bank.
d Contract Proceeds shall mean those sums which are due to the Consultant Engineer
under the Contract between the Employer and the Consultant Engineer and which
sums are subject to any deductions or set off made by the Employer in accordance
with the provisions of the Contract.
e This authority and Request cannot be varied or cancelled without the prior written
consent of the Bank.
Yours faithfully,
CONSULTANT ENGINEER:
Signature:
1. We hereby confirm our understanding and unqualified acceptance of the terms of
this letter and agree that neither this letter nor any payment made pursuant to this
letter shall create any contractual or fiduciary relationship between the Employer
and the Bank.
Countersigned:
for and on behalf of the Bank.
Dated:
2. We hereby acknowledge receipt of the original of this letter and confirm that we
have no objection to the method of payment suggested.
Countersigned:
for and on behalf of the Employer.
Dated:
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SCHEDULES
The information contained in Schedules 1-4 is indicative only and shall vary in relation to
each project.
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THE FIRST SCHEDULE
THE PROJECT
1. The Project comprises:
2. The target cost for the Project (the Target Cost) shall be Bahrain Dinars: [ ] BD
[ ] and shall be subject to revision from time to time on the basis of probable
construction costs
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THE SECOND SCHEDULE
THE SERVICES
Note:- When Consultant QS is appointed directly by Employer, Items 4 and 5 detailed below
have to be modified.
The Services shall comprise the design of the Project and shall include but not be limited to the
following:
1. Investigation
2. Preliminary Design
3. Detailed Design
4. Working Drawings and Tender Documents
5. Tendering and Recommendation of Contractor
6. Building Permit
7. Monthly Reports
8. Supervising Construction
9. Core Group and Early Warning (if applicable)
10. Key Dates Schedule (if applicable)
The design and management of the Project are described in more detail below:
1 Investigation
a The Consultant Engineer shall investigate all available data relevant to the
Project and shall initiate and supervise all normal soil investigations on the
site of the Project.
b The Consultant Engineer shall advise the Employer of the need for any
special surveys, investigations or tests necessary for the safe and proper
design and execution of the Project, shall with the Employer’s prior written
approval arrange for these to be carried out on the Employer’s behalf and
shall study, analyse and report in full to the Employer on the results thereof.
c The Consultant Engineer shall approach all relevant Authorities in order to
establish basic approval criteria relevant to the design and execution of the
Project.
2 Preliminary Design
a The Consultant Engineer shall prepare and present for the Employer’s
approval outline plans for the Project which meet the Employer’s
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requirements and objectives in conformity with the Contract, the Target Cost
and the results of the Consultant Engineer’s investigations described in
paragraph 1 (the Preliminary Design).
b The Consultant Engineer shall submit to the Employer a probable
construction costs based on current area, volume and cost in Bahrain.
3 Detailed Design
a Upon receipt of written approval from the Employer of the Preliminary
Design the Consultant Engineer shall prepare for the Employer’s approval
drawings, designs and specifications to a sufficient level of detail to fix and
describe the size and character of the Project (the Detailed Design). The
Consultant Engineer shall submit the Detailed Design together with such
other information as may be required to the relevant Authorities for planning
and approval and (subject to reimbursement by the Employer) shall pay any
necessary fees and shall report to the Employer as soon as planning approval
has been granted.
b The Consultant Engineer shall submit to the Employer a statement of probable
construction costs based on current area, volume and cost in Bahrain.
4 Working Drawings and Tender Documents
Upon receipt of written approval from the Employer of the Detailed Design the
Consultant Engineer shall prepare:
a Working drawings of the Project (the Working Drawings).
b All such documents as together with the Working Drawings shall enable the
Employer to put the Project to tender (the Tender Documents). The Tender
Documents shall include general and special conditions of contract,
invitations to tender, forms of tender, architectural, electrical and mechanical
specifications and bills of quantities/schedules of rates and prices and such
other forms and documents as may from time to time be required by the
Employer. The Consultant Engineer may allow in the Tender Documents for
the provision and maintenance by the selected Contractor of air-conditioned,
furnished office accommodation for the Consultant Engineer on the site of the
Project and for the connection and maintenance of water, electricity and
telephone services for such accommodation at no cost to the Consultant
Engineer (with the exception only of international telephone calls, telexes and
cables). A draft copy of the Tender Documents shall be submitted to the
Employer for approval not less than one month prior to going to tender.
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c Priced bills of quantities/schedule of rates and prices based on the latest
estimated rates and realistic cost of materials prevailing in Bahrain which bills
of quantities/schedule of prices shall be used for comparison of tenders
received (the rates and Priced Documents).
5 Tendering and Recommendation of Contractor
Upon receipt of written approval from the Employer of the Working Drawings, the
Tender Documents and the Priced Documents and subject to formal planning
approval having been granted for the execution of the Project the Consultant
Engineer shall undertake the following duties (the Tender Procedure):
a Pre-qualifying and selection, after obtaining the Employer’s approval, of
suitable contractors to participate in the tender for the execution of the
Project.
b Assisting in the tender as required and advising the Employer on tenders
received, including providing financial and technical evaluations of such
tenders and submitting a detailed written recommendation regarding the
award of the Contract for the execution of the Project. No tender shall be
accepted or award placed by the Consultant Engineer except on behalf of the
Employer and with his prior authority in writing.
c In the event that no tender for the Project is received which is satisfactory to
the Employer in every respect and which is for a total amount less than the
Target Cost and provided that:
i any excess over the Target Cost is not due to delays by the Employer in the
award of a Building Contract; or
ii the scale of the Project finally set by the Employer is not such as to render the
Target Cost inadequate in the event that the Consultant Engineer shall have so
advised the Employer prior to the issue of the Tender Documents
then the Consultant Engineer shall without any further charge to the Employer
take all necessary additional action either by redesign or by alteration to the
scope of the Project as requested by the Employer to ensure that subsequent
satisfactory tenders are submitted within the Target Cost.
d Advising on the preparation and award of the Building Contract.
e Engrossing the approved form of Building Contract and arranging for the
signing of the Building Contract and for the delivery to the Employer of the
signed and dated Building Contract.
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6 Building Permit
It is the Consultant Engineer’s responsibility to apply for the building permit in
sufficient time that the permit is available to allow construction to start as scheduled.
7 Monthly Reports
The Consultant Engineer shall submit monthly reports which shall advise on:
o Milestone events since the previous report
o Progress compared to programme
o Financial implications of instructions received and anticipated to be received
from the Employer
o Financial implications as a result of other factors
o Information or instructions required from the Employer and the date by when it
is required in order to maintain programme
o Milestone events programmed to occur within the month following the report.
8 Supervising Construction
The Consultant Engineer shall be responsible for the administration and supervision
of the Project during the construction and maintenance period and shall in this
connection undertake the following duties (the Supervisory Duties):
a Issue to the Contractor such orders and instructions and give such professional
opinions as are necessary for the execution of the Project in accordance with
the Building Contract.
b Examine and approve the programme of work of the Contractor and all
drawings, reports and proposals submitted by the Contractor from time to
time.
c Rectify any errors revealed in the detailed design or the Working Drawings
during the course of the execution of the Project and prepare and obtain the
Employer’s written approval of any further detailed designs and Working
Drawings that may be required for the proper execution of the Project.
d Measure the progress of the execution of the Project and prepare and issue
interim and final certificates of payment, such certificates to be in a form
approved by the Employer, in accordance with the Building Contract.
e Submit to the Employer monthly reports on the progress of the Project,
together with photographs of all stages in the execution of the Project, inform
the Employer immediately in writing of any accident or damage that may
Copyright-Ministry of Works ConsultEngPrePost09 36
occur on the site of the Project and instruct the Contractor to make accident
reports as required by the Employer. Where delays on the site of the Project or
other problems occur, the Consultant Engineer with the Contractor shall
prepare and submit to the Employer proposals designed to rectify the
situation.
f Advise the Employer on the necessity for the inspection and testing of
materials and plant supplied for the incorporation in the Project and arrange
for such inspection and testing to be carried out on the Employer’s behalf
within the costs allowed for in the Tender Documents.
g Supervise inspection and testing (including acceptance tests) upon
manufacture, prior to shipment, upon delivery and during and after
installation of all electrical and mechanical materials, machinery and plant
supplied for incorporation in the Project.
h Prepare and submit to the Employer at quarterly intervals or more frequently
as required, a review of the estimated final cost of the Project.
i Keep in Bahrain full and proper records of the progress of the Project and
deliver to the Employer on the completion of the Project a maintenance
manual in three (3) copies incorporating instructions, as built drawings, spare
parts listed and all such other records and information as are necessary for the
operation and maintenance of the Project.
j Assist in settling any disputes or differences which may arise between the
Employer and the Contractor. The Consultant Engineer and its resident site
supervisory staff shall continuously exert its utmost efforts to avoid the
submission of claims by the Contractor.
k In the event that any claim shall be received from the Contractor prior to the
issue of the final certificate at the end of the maintenance period of the Project
the Consultant Engineer shall immediately inform the Employer in writing
and then shall study such claim and prepare and submit to the Employer a
detailed report incorporating the Consultant Engineer's comments and
recommendations (within the scope of the Consultant Engineer's professional
and technical expertise) for the settlement and upon demand shall supply the
Employer with any information and documents as may reasonably be required
by the Employer in connection with such claim.
l During the execution of the Project act as “Engineer”, as defined in the
Building Contract and carry out all the duties of the "Engineer" under the
Building Contract although the Consultant Engineer shall not be entitled to
amend or vary the Building Contract nor to give any instructions (except for
pressing reasons of safety) that could increase or decrease the overall cost of
Copyright-Ministry of Works ConsultEngPrePost09 37
the Project nor to authorise expenditure from provisional or contingency sums
without prior written approval of the Employer. The Consultant Engineer
shall promptly submit to the Employer copies of any variation orders or
equivalent instructions as soon as these are issued to the Contractor and shall
use the prescribed forms to issue variations and instructions under the
Building Contract.
m Together with the Contractor hold regular site meetings to be chaired by the
Consultant Engineer. The Employer reserves the right for himself and his duly
authorised representative to attend and participate at all such site meetings.
Minutes shall be prepared by the Consultant Engineer and shall be submitted
to the Employer within seven (7) days of each such site meeting.
n Obtain and present to the Employer on the completion of the Project final
certificates relative to the Project issued by all the relevant Authorities.
o Employ full time on the site of the Project throughout the period of
construction a resident engineer together with such other specialist personnel
as listed in paragraph b of Part I to the Fourth Schedule hereto as may be
required from time to time during the various stages of the construction and
provide for the resident engineer and such other specialist personnel full time
office support from all necessary administrative staff.
9 Core Group and Early Warning (if applicable)
The defined terms used in this clause shall, unless defined in this Contract, have the
meaning as given to them in the Building Contract.
If stated to be applicable in Article 11 of the Contract Agreement and subject to the
Core Group and Early Warning mechanisms being implemented under the Building
Contract, the Core Group and the Early Warning system will function as set out in
9a-9c and the Consultant Engineer will become a member of the Core Group and will
participate in the Early Warning system in accordance with 9d below and perform the
roles of the "Consultant Engineer" as set out below.
a The Employer, the Contractor, the Quantity Surveyor and the Consultant
Engineer shall establish a Core Group who shall meet regularly to review and
stimulate the progress of the Works and the implementation of the Building
Contract. Members of the Core Group shall include the individuals so listed
in Article 11 of the Contract Agreement subject to replacement only with the
prior consent of the Employer, the Contractor, the Quantity Surveyor and the
Consultant Engineer;
b A meeting of the Core Group members shall be convened by the Consultant
Engineer at the request of any Core Group member, at not less than seven (7)
days notice to all Core Group members stating its agenda (unless all Core
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Group members agree a shorter period). Each such meeting shall be chaired
by the Consultant Engineer and shall deal only with the matters listed in its
agenda (unless all Core Group members agree otherwise);
c Decisions of the Core Group shall be by unanimous agreement of all Core
Group members present at that meeting and any decision of the Core Group
shall be confirmed by an instruction of the Consultant Engineer. The
Employer, the Contractor, the Quantity Surveyor and the Consultant Engineer
shall comply with any decision of the Core Group made within the scope of
its agreed functions and confirmed by an instruction of the Consultant
Engineer; and
d The Employer, the Contractor, the Quantity Surveyor and the Consultant
Engineer shall operate an Early Warning system, whereby the Employer, the
Contractor, the Quantity Surveyor and the Consultant Engineer shall notify
the others as soon as they are aware of any matter adversely affecting or
threatening the Works or the Contractor’s or the Employer’s performance
under the Building Contract, and (within the scope of its agreed role, expertise
and responsibilities) shall include in such notification proposals for avoiding
or remedying such matter.
10. Key Dates Schedule (if applicable)
The defined terms used in this clause shall, unless defined in this Contract, have the
meaning as given to them in the Building Contract.
a If stated to be applicable in Article 10 of the Contract Agreement, the
Employer, the Contractor, the Quantity Surveyor and the Consultant Engineer
shall agree the Key Dates Schedule, which shall from part of the Building
Contract and the Consultant Engineer shall comply with the Key Dates
Schedule which shall identify the following:
i times for Completion of particular Sections and parts of the Works, and
dates/periods for agreed pre-conditions and procedures for Site
access/possession, for the issue of Taking Over Certificates and for
inspections, tests and commissioning;
ii deadlines for preparation and issue of all remaining Drawings and
Specifications and other documents necessary for the Works to be executed
and deadlines for submission by the Contractor of all Drawings and
Specifications and other documents required by the Engineer from the
Contractor (and its Sub-Contractors) and otherwise necessary for the
Engineer to complete its own Drawings and Specifications and other
documents;
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iii in relation to each Provisional Sum, deadlines for the preparation of all
remaining Drawings and Specifications and other documents with further
periods of time for the Contractor to invite Sub-Contractor bids, for those bids
to be reviewed and approved by the Employer and for the Engineer to
authorise the Provisional Sum item.
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THE THIRD SCHEDULE
THE CONSULTANT ENGINEER'S PROGRAMME
The Consultant Engineer shall complete the Services in accordance with the following
programme commencing:[ ] (the Commencement Date):
a The Preliminary Design and the statement of probable construction costs
within [ ] ([ ]) weeks from the Commencement Date.
b The Detailed Design and the statement of probable construction costs within [
] ([ ]) weeks from the Commencement Date.
c The Working Drawings, the Tender Documents and the Priced Documents
within [ ] ([ ]) weeks from the Commencement Date.
d The Tender Procedure within [ ] ([ ]) weeks from the
Commencement Date.
e The Supervisory duties in accordance with a detailed programme to be
approved by the Employer based on an estimated total construction period of [
] ([ ]) months and a subsequent maintenance period of [ ] ([
]) months.
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THE FOURTH SCHEDULE
THE CONSULTANT ENGINEER’S REMUNERATION
OPTION - 1
In consideration of the due and diligent performance of the Services the Employer shall pay the
Consultant Engineer a total inclusive fee made up as follows:
a a sum equivalent to the lesser of [ ] percent [ %] of the actual cost of the
execution of the Project/and BD [ ] for Pre Contract Engineering Services,
and a sum equivalent to the lesser of [ ] percent [%] of the agreed final
account sum and BD [ ] for Post Contract Engineering Services.
b The fee described in paragraph (a) of Part I of this Schedule shall be payable
in the following manner:
Pre Contract Engineering Services
i [ ] percent ([ ]%) / BD.............. for the Preliminary Design and
construction costs on the approval by the Employer the statement of probable
construction costs
ii [ ] percent ([ ]%) on the approval by the Employer of the
Detailed Design and the statement of probable construction costs.
iii [ ] percent ([ ]%) on the approval by the Employer of the
Working Drawings and the Priced Documents.
Post Contract Engineering Services
iv [ ] percent ([ ]%) / BD ............... payable in equal instalments in
arrears during the construction period of the Contract.
v [ ] percent ([ ]%) / BD ............... payable on the issue by the
Consultant Engineer of a certificate of final completion/maintenance
certificate in respect of the execution of the Project.
c Prior to award of contract, payment under Option 1 paragraph a above of this
Schedule shall be calculated in accordance with the Target Cost. Prior to
agreement of the Final Account, Post Contract Services shall be calculated in
accordance with the Contract Sum. Such payments shall not be regarded as a
valuation of the duties performed at the respective stages but shall rank solely
as payments on account towards the total fee payable.
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d On the issue by the Consultant Engineer of the final payment certificate upon
the expiry of the maintenance period following the completion of the Project,
the actual cost of the execution of the Project shall be agreed between the
Employer and the Consultant Engineer and in the event that the Consultant
Engineer have been paid more or less than the sum referred to in paragraph a
of Option 1 of this Schedule then the difference shall be paid as appropriate
by the Employer to the Consultant Engineer in the event of an underpayment
or by the Consultant Engineer to the Employer in the event of an overpayment
within a period of sixty (60) days from the issue of the said final payment
certificate.
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OPTION - 2
Alternatively, as Option 2; fees shall be payable for Post Contract Engineering
Services as detailed below:-
a man/month rates in accordance with the scale of supervision rates approved
for the time being by H.E. the Minister of Works throughout the construction
period of the Construction Contract in respect of each month that each of the
listed members of the supervisory staff of the Consultant Engineer is
employed exclusively full time on the Project together with a sum equivalent
to the lesser of ten percent (10%) of the monthly total/man supervision rates
and BD 3000/- in respect of local administrative costs. The approved scale of
supervision rates for the construction period is as follows:
SUPERVISION RATES
EFFECTIVE FROM [ ]
MAN/MONTH RATES – [ ] REVISION
LEVEL
SUPERVISION
CATEGORIES
LOCAL EXPATRIATE
(BD) (BD) (QUALIFICATION)
1 PROJECT MANAGER
2 RESIDENT ENGINEER
3 SENIOR ENGINEER
4 ENGINEER
QUANTITY SURVEYOR
5 LAND SURVEYOR
JUNIOR ENGINEER
6 SENIOR INSPECTOR
7 INSPECTOR
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GENERAL
a The above fees are fully inclusive of all costs and overheads that the
Consultant Engineer may incur at any time during the performance of the
Services.
b The above fees shall be payable in Bahrain Dinars, unless otherwise agreed
between the parties, within forty-two (42) days from the presentation to the
Employer by the Consultant Engineer of itemised invoices in the appropriate
amounts.