Category Management
GSF Framework
<Insert Name of Scheme>
Volume 2
Annex A
Subcontract Package Order Contract Data
Part 1 and Part 2
Highways Agency
GSF Framework Volume 2
Annex A Subcontract Package Order Contract Data Part 1 and Part 2
ANNEX A
DATA APPLICABLE TO ALL SUBCONTRACT PACKAGE ORDERS
Part One – Data provided by the Contractor
Statements given in all contracts
1. General • The conditions of contract are the core clauses and the clauses for main Option A, B, C or D as defined in the Package Order, dispute resolution Option W2 and secondary Options Y(UK)2, Y(UK)3 and Z (together with such other secondary Options as defined in the Package Order) of the NEC3 Engineering and Construction Sub-Contract June 2005 (with amendments June 2006)[1]
• The language of the Sub-Contract is English.
• The law of the subcontract is [the law of England and Wales subject to the jurisdiction of the courts of England and Wales] [the law of Scotland subject to the jurisdiction of the Scottish courts[2]].
2. Framework
Agreement • The Framework Agreement is the agreement between the [Secretary of State for and the Subcontractor dated [ ] pursuant to which the Subcontractor was appointed for one or more lots of a gantry systems Framework Agreement.
5. Payment • The currency of this subcontract is the pound sterling
• The interest rate is 2 % per annum above the base rate of the Bank of England (as in force from time to time).
6. Compensation
Events • The weather measurements to be recorded for each calendar month are:
• the cumulative rainfall (mm)
• the number of days with rainfall more than 5 mm
• the number of days with minimum air temperature less than 0 degrees Celsius
• the number of days with snow lying to a depth of more than 25mm at 08:00 hours GMT
• and these measurements:
the number of [days] with a wind speed in excess of [ ]mph
• The weather measurements are supplied by; The Met Office, Commercial Services, Johnson House, London Road, Bracknell, Berkshire, RG12 2SY.
• The weather data are the records of past weather measurements for each calendar month which were recorded at [TBC[3]] station and which are available from The Met Office.
8. Risks and
insurance • The amount of the minimum limit of indemnity for insurance in respect of loss of or damage to property and liability for bodily injury to or death to employees of the Subcontractor due to activity in connection with this subcontract for any one event is £10,000,000 (ten million pounds)[4].
• The minimum limit of indemnity for insurance in respect of death of or bodily injury to employees of the Subcontractor arising out of and in the course of their employment in connection with this subcontract for any one event is £10,000,000 (ten million pounds).
If Y(UK)2 is used and the final date for payment is not 21 days after the date when the payment is due
• The period for payment is 28 days[5]
If Option Z is used
• The additional conditions of subcontract are as follows:
Z Clause additional conditions of contract
The amendments to the Core Clauses of the NEC3 Engineering Construction Subcontract (2005) (amended June 2006) and the additional conditions of contract are as set out below.
Amendments to the Core Clauses
Clause Z2 / ActionsZ2.1 Insert new clause 10.2 as follows:
“The Subcontractor warrants and represents to the Contractor that:
· the Subcontractor has full capacity and authority and all necessary consents (including, where its procedures so require, the consent of any ultimate holding company) to enter into and to perform its obligations under this subcontract,
· this subcontract is executed by a duly authorised representatives of the Subcontractor,
· in entering into this subcontract it has not committed and will not commit any fraud, nor will it be in breach of any legal duty (including a contractual obligation to any third party) in any jurisdiction,
· as at the date of the subcontract, all information, statements and representations made in relation to the Subcontractor’s tender in accordance with the Framework Agreement for the subcontract works are true, accurate and not misleading,
· the Subcontractor has not entered into any agreement with any other person (or caused or induced any person to enter into any agreement) with the aim of preventing tenders being made or as to the fixing or adjusting of the amount of any tender or the conditions on which any tender is made in respect of this subcontract,
· the Subcontractor has not committed any offence under the Prevention of Corruption Acts 1889 to 1916 or the Bribery Act 2010,
· no claim is being asserted and no litigation, arbitration or administrative proceeding is presently in progress or, to the best of its knowledge and belief, pending or threatened against it or any of its assets which will or might affect its ability to perform its obligations under this subcontract,
· it is not subject to any contractual obligation, compliance with which is likely to have a negative effect on its ability to perform its obligations under this subcontract,
· none of the circumstances set out in reasons R1 – R10 of Clause 91.1 apply to the Subcontractor.
Z2.2 Insert new clause 10.3 as follows:
“The Subcontractor has full knowledge of the terms and conditions of the Contract (other than details of the Contractor’s Prices) as set out in Appendix 1 to this subcontract. (the “Main Contract Terms”) The Subcontractor performs the subcontract works, grants such rights and exercises all such entitlements as required so as not to put the Contractor in breach of the Main Contract Terms and has included the cost of so complying in the Prices”.
Clause Z3 / Identified and defined terms
Z3.1 Delete “when this subcontract came into existence” from clause 11.2(4) and replace with “the earlier of the date of the Form of Agreement and the date on which the Subcontractor starts Providing the Subcontract Works”
Interpretation and the law
Z4.1 Delete existing clause 12.1 and replace with:
"In this subcontract, except where the context shows otherwise
· words in the singular also mean in the plural and the other way round,
· references to a document include any revision made to it in accordance with this contract, and
· references to a statute or statutory instrument include any amendment or re-enactment of it from time to time and any subordinate legislation or code of practice made under it.”
Z4.2 Add new clause 12.5 as follows:
“The Subcontractor does not assign, transfer or charge the benefit of this subcontract without the prior agreement of the Contractor”.
Z4.3 Add new clause 12.7 as follows:
“In the event of any conflict between the obligations set out in clause 10.3, and the other conditions of this subcontract, clause 10.3 shall prevail.”
Clause Z5 / Communications
Z5.1 Insert new clause 13.10 as follows:
“The Subcontractor does not:
· do anything which may damage the reputation of the Contractor or the Employer or bring the Contractor or the Employer into disrepute; or
· make any press announcements or publicise this subcontract in any way without the Contractor’s prior written consent.”
Z5.2 Insert new clause 13.11 as follows:
“The Subcontractor attends progress meetings at the intervals specified in the Works Information or, if none is specified, if requested by the Contractor.”
Clause Z6 / Providing the Subcontract Works
Z6.1 Delete “in accordance with the Subcontract Works Information” from clause 20.1 and replace with
“in accordance with:
· the Subcontract Works Information
· the Main Contract Terms
· the Framework Terms”
Clause Z7 / The Subcontractor’s design
Z7.1 Insert new clause 21.4 as follows
“(1) The Subcontractor indemnifies and holds harmless the Contractor and the Employer from and against all claims, demands, proceedings, damages, costs and expenses arising out of any infringement of any patent, copyright, trademark or other protected or registered right in respect of any Subcontractor’s Equipment, Plant, his design, work or materials used in or in connection with the Subcontract Works, or out of any breach of or failure to observe or perform the terms of any licence in relation to those intellectual property or other rights.
The Subcontractor obtains all such licences as may be necessary and the Price includes all royalties or other sums payable in connection therewith.”
Z7.2 Insert new clause 21.5 as follows
“Where the Subcontractor is responsible for design, preparation of the drawings, selection of materials or preparation of the Specification for the Subcontract Works in accordance with clause 21.1:
(1) the Subcontractor shall be liable to the Contractor for any defects, errors or omissions in his design and shall indemnify and hold harmless the Contractor in respect of any action, costs, claims, damages, losses or demands arising as a result of or in connection with the same.
(2) the Subcontractor shall upon request produce to the Contractor his policy of professional indemnity insurance and evidence of payment of the current premium and shall procure that any sub-subcontractor engaged by him shall do the same.’
Clause Z8 / Working with the Contractor and Others
Z8.1 Add at the beginning of clause 25.1:
“The Subcontractor is not entitled to exclusive possession or control of any part of the Site unless:
· expressly stated otherwise the Subcontract Works Information,
· the Contractor (at its sole discretion) expressly grants such possession or control”
Clause Z9 / Record Keeping and Audit“
Z9.1 Add new clause 28 as follows:
“28
28.1 The Subcontractor makes, retains, provides to the Contractor and makes available for inspection such information in form and at such times as is reasonably required by the Contractor to comply with the Main Contract Terms.
28.2 Without prejudice to the foregoing, the Subcontractor keeps and maintains until [six (6)] years after the end date of this subcontract full and accurate records of the operation of the subcontract (the “Records”).
28.3 The Subcontractor permits the Contractor, Employer (or anyone so authorised by the Employer) and/or the Comptroller and Auditor General to access the Records during the term of the subcontract and for a period of [six (6)] years after the end date.
28.4 The Subcontractor provides the Contractor, Employer (or anyone so authorised by the Employer) and/or the Comptroller and Auditor General with all reasonable co-operation and assistance in relation to any examination of the Records, including:
· such oral or written explanations as the Contractor or Employer and/or Comptroller and Auditor General considers necessary;
· reasonable access to sites controlled by the Subcontractor; and
· reasonable access to the Subcontractor’s Staff.
28.5 This clause does not constitute a requirement or agreement for the purposes of section 6(3)(d) of the National Audit Act 1983 for the examination, certification or inspection of the accounts of the Subcontractor.”
Clause Z10 / Confidentiality
Z10.1 Add new clause 29 as follows:
“29
“29.1 The Subcontractor keeps (and ensures that its employees and sub-subcontractors keep) confidential and does not disclose to any person
· the terms of this subcontract and
· any confidential or proprietary information (including personal data) provided to or acquired by the Subcontractor in the course of Providing the Subcontract Works
except that the Subcontractor may disclose information
· to its legal or other professional advisers,
· to its employees and sub-subcontractors as needed to enable the Subcontractor to Provide the Subcontract Works,
· where required to do so by law or by any professional or regulatory obligation or by order of any court or governmental agency, provided that prior to disclosure the Subcontractor consults the Contractor and takes full account of the Contractor’s views about whether (and if so to what extent) the information should be disclosed,
· which it receives from a third party who lawfully acquired it and who is under no obligation restricting its disclosure,
· which is in the public domain at the time of disclosure other than due to the fault of the Subcontractor,
· where required to collaborate with Others, or
· with the consent of the Contractor.”
Clause Z11 / Access to and use of the Site
Z11.1 Insert new clause 33.2 as follows:
“The Contractor shall make available from time to time to the Subcontractor such part or parts of the Site as shall be necessary to the enable the Subcontractor to Provide the Subcontract Works in accordance with the subcontract as set out in the Subcontract Works Information. To the extent that the Subcontractor requires access to areas other than as referred to in the Subcontract Works Information, the Subcontractor shall be responsible for ensuring that such access is made available to it, for which purposes the Contractor shall take reasonable steps to accommodate any requests of the Subcontractor where the access is sought in relation to areas of the Site in the Contractor’s possession or control.”
Z11.2 Insert new clause 33.3 as follows:
“The Contractor makes available the Equipment, Plant and Materials, and/or other facilities provided for use by the Subcontractor as stated in the Subcontract Works Information.”
Z11.3 Insert new clause 33.4 as follows:
“The Subcontractor is fully responsible for the care and maintenance of the Contractor’s Equipment, Plant and Materials, and/or other facilities provided for his use by the Contractor under clause 33.3. The Subcontractor indemnifies the Contractor against any damage loss, costs or expenses caused by:
· misuse by the Subcontractor, his servants or agents of, or
· the Subcontractor’s failure to take care of and to maintain,
the Contractor’s Equipment, Plant and Materials, and/or other facilities provided for his use by the Contractor under clause 33.3.”
Z11.4 Insert new clause 33.5 as follows:
“Save for the Contractor’s Equipment, Plant and Materials, and/or other facilities provided under clause 33.3 if the Contractor provides any other Equipment, Plant and Materials, and/or other facilities at the request of the Subcontractor, the provision of the same is a trading arrangement separate from the subcontract but in any event payment by the Subcontractor shall be made by means of deduction from any payments becoming due to the Subcontractor under this subcontract.”