Project Managers to Note
1.Construct only or Design and Construction
If this contract is to be used for Design and Construction, the Project Manager or responsible officer should ensure that all required information which is to be submitted with the tender is requested in the tender documents – “Tender Requirements for Design and Construction Contract Tenders”- Refer to optional page included at rear of Tender Form.
The optional page included at rear of Tender Form should be omitted from non D&C tender documents.
2.Training Policy
If the estimated Contract Sum is $500,000 or more then indicate in the annexure that clause 35 is to apply.
3.Workforce Management and OHS
Consider whether these policies are applicable to your project.
Do not include this page in Contract Documents.
Special Conditions of Contract
and
Annexure
(To be read in conjunction with Australian Standard Minor Works Contract Conditions AS 4305-1996)
1 July 2018
Project nameProject number
Date
Prepared by
Contract Services
Department of Housing and Public Works
(01.07.18: changes to incorporate Corporations Act 2001 (Cth) amendments)
© State of Queensland
Queensland GovernmentSpecial Conditions of Contract to AS4305 – 1996 & Annexure
CONTENTS
Page
CONDITIONS OF CONTRACT
1.GENERAL
2.INTERPRETATION
SPECIAL CONDITIONS OF CONTRACT
1.INTERPRETATION
2.NATURE OF CONTRACT
3.SECURITY AND RETENTION MONEYS
4.CONTRACT DOCUMENTS
5.SUBCONTRACTING
6.PROTECTION OF PEOPLE AND PROPERTY
7.CARE OF THE WORK AND REINSTATEMENT OF DAMAGE
8.DAMAGE TO PERSONS AND PROPERTY
9.INSURANCE OF THE WORK UNDER THE CONTRACT
10.PUBLIC LIABILITY INSURANCE
11.INSURANCE OF EMPLOYEES
12.INSURANCE PROVISIONS
13.SUPERINTENDENT
14.REPRESENTATIVES
15.SITE
16.MATERIALS AND WORK
17.PROGRESS, PROGRAMMING AND SUSPENSION
18.PRACTICAL COMPLETION
19.EXTENSION OF TIME FOR PRACTICAL COMPLETION
20.DAMAGES FOR DELAY IN REACHING PRACTICAL COMPLETION
21.DELAY OR DISRUPTION
22.DEFECTS LIABILITY
23.VARIATIONS
24.CERTIFICATES AND PAYMENTS
25.CERTIFICATE OF PRACTICAL COMPLETION
26.EFFECT OF CERTIFICATES
27.FINAL PAYMENT CLAIM
28.FINAL CERTIFICATE
29.DEFAULT
30.INSOLVENCY
31.SETTLEMENT OF DISPUTES
32.SERVICE OF NOTICES
33.LATENT CONDITIONS
34.WORK HEALTH AND SAFETY ACT 2011
35.TRAINING POLICY
36.GENERAL RIGHT OF SET OFF
37.APPLICABLE LAW
38.PAYMENT OF WORKERS AND SUBCONTRACTORS
38APROJECT BANK ACCOUNTS
39.SITE PERSONNEL REGISTER
40.INFORMATION PRIVACY ACT
41.DESIGN RESPONSIBILITY
42.COMPLIANCE WITH STATUTES
43.GOODS AND SERVICES TAX (GST)
44.COLLUSIVE ARRANGEMENTS
45.QUEENSLAND PROCUREMENT POLICY
ANNEXURE TO THE AUSTRALIAN STANDARD MINOR WORKS CONTRACT CONDITIONS
FORM OF UNDERTAKING
REQUEST FOR APPROVAL TO SUBCONTRACT
REQUEST FOR APPROVAL TO SUB SUBCONTRACT
STATUTORY DECLARATION BY CONTRACTOR
STATUTORY DECLARATION BY SUBCONTRACTOR
SUBCONTRACTOR PAYMENT SUMMARY
SITE PERSONNEL REGISTER
SITE PERSONNEL REGISTER SUMMARY
IMPORTANT INFORMATION FOR SUBCONTRACTORS
01.07.18(1)Special Conditions of Contract to AS 4305 – 1996 & Annexure
Queensland GovernmentSpecial Conditions of Contract toAS4305 – 1996 & Annexure
CONDITIONS OF CONTRACT
1.GENERAL
The Conditions of Contract shall be the “Australian Standard Minor Works Contract Conditions AS4305 – 1996” as amended by the Special Conditions of Contract.
2.INTERPRETATION
In the event of conflict or inconsistency between the provisions of the Australian Standard Minor Works Contract Conditions (AS4305 - 1996) and the Special Conditions of Contract, the Special Conditions of Contract shall take precedence.
References to “Annexures” to AS4305 – 1996 shall be read as references to Annexures attached to the Special Conditions of Contract.
References to “attached to these Conditions” shall be read as references to attachments to the Special Conditions of Contract.
01.07.18(1)Special Conditions of Contract to AS 4305 – 1996 & Annexure
Queensland GovernmentSpecial Conditions of Contract toAS4305 – 1996 & Annexure
SPECIAL CONDITIONS OF CONTRACT
1.INTERPRETATION
Add the following before the definition of ‘Certificate of Practical Completion’:
“
’BIF Act’ means the Building Industry Fairness (Security of Payment) Act 2017(Qld) and the regulations made under or in respect of that Act;
’Business Day’ means a day that is not:
(a)a Saturday or Sunday; or
(b)a public holiday, special holiday or bank holiday in the place where the Works will be situated; ”
Delete the definition for ‘Contract Sum’ and insert:
“
‘Contract Sum’ means -
(b)where the Principal accepted a lump sum, the lump sum;
(c)where the Principal accepted rates, the sum ascertained by calculating the products of the rates and the corresponding quantities in the Bill of Quantities or Schedule of Rates;
(d)where the Principal accepted a lump sum and rates, the aggregate of the sums referred to in paragraphs (a) and (b),
but excluding any additions or deductions which may be required to be made under the Contract. ”
Delete the definition for ‘Date for Practical Completion’ and insert:
“
‘Date for Practical Completion’ means the last day of the period of time stated in Item 11.”
Add the following after the definition of ‘Practical Completion’:
“
'Security of Payment Act' means the Building and Construction Industry Payments Act 2004(Qld), unless and until that Act is repealed and Chapter 3 and Chapter 8 of the BIF Act commences, from which time Security of Payment Act means the BIF Act;
‘Separable Portion’ means a portion of the work under the Contract described in the Contract as a Separable Portion or which the Superintendent has determined pursuant to Clause 19.3 shall be a Separable Portion.” ”
Add the following after the definition of 'Site':
“
‘Subcontractors’ Charges Act’ means the Subcontractors’ Charges Act 1974 (Qld), unless and until that Act is repealed and Chapter 4 and Chapter 8 of the BIF Act commences, from which time Subcontractors’ Charges Act’ means the provisions of the BIF Act relevant to Chapter 4 of the BIF Act. "
2.NATURE OF CONTRACT
No Amendment
3.SECURITY AND RETENTION MONEYS
Express the existing clause as subclause “3.1 Security and Security in Lieu of Retention Moneys” and insert as the first paragraph:
“
3.1.1Security and retention moneys are for the purpose of ensuring the due and proper performance of the Contract and for the purpose of providing security of payment to Subcontractors of the Contractor (as these terms are defined in the Subcontractors’ Charges Act1974 (Qld)). ”
Delete the second paragraph commencing with the words “If no security is stated ...” and insert in its place:
“If no security is stated in Item 12, the Principal may retain 10% of the value of work incorporated into the Works (excluding GST) from each progress payment until 5% of the Contract Sum, minus GST, is held. ”
Delete the third paragraph commencing with the words “The Principal may have recourse…..” and insert in its place:
“
3.1.2The Contractor may request at any time permission to provide security to be held by the Principal in lieu of retention moneys.The Principal may in its entire discretion and without giving reasons reject any such request by the Contractor.
The security shall be in any of the forms stated in Item 12.The form of unconditional undertaking attached to these Conditions is approved.
In the event that the Contractor requests to provide security in lieu of retention and the Principal elects to agree to the request, the following provisions shall apply notwithstanding any other provision in the Contract to the contrary:
(a)The security shall be for an amount equal to 5% of the Contract Sum and shall be lodged with the Principal.
(b)Unless, and until the expiration of a period of 5 working days after, the undertaking is lodged, retention moneys shall be deducted in accordance with Clause 3.1.
(c)5 working days after the lodgement of the undertaking - retention moneys pursuant to Clause 3.1 shall not be deducted and all retention moneys previously deducted (if any) pursuant to Clause 3.1 shall be the subject of the next following progress certificate issued by the Superintendent with appropriate amounts credited to the Contractor.
(d)Subject to the rights of the Principal under the Contract, the provisions of Clauses 3.1, 3.2, and 28 shall apply to the undertakings.
(e)An undertaking given pursuant to this Clause 3.1.2 shall be regarded as a performance undertaking with purposes as set out in Clause 3.1.1. ”
Insert further subclauses as follows:
“
3.2Recourse to Retention Moneys and Conversion of Security
The Principal may at any time convert into money security that does not consist of money whether or not the Principal is then entitled to exercise a right under the Contract in respect of the security.The Principal shall not be liable in any way for any loss occasioned by such conversion.
The Principal may have recourse to retention moneys, cash security or to moneys obtained by conversion of security where the Principal has become entitled to exercise a right under the Contract in respect of the retention moneys or security or is otherwise entitled at law to have recourse to such moneys or security.
Before the paragraph commencing “Upon Practical Completion, the Principal’s entitlement…” insert :
“
3.3Reduction and Release of Security and Retention Moneys
“
Delete the final paragraph which commences “Within 14 days of the issue of a Final Certificate” and insert:
“Subject to the Principal’s rights to set-off pursuant to clause 36 and to have recourse to security and retention pursuant to clause 3.2, within 28 days of the issuance of a Final Certificate which certifies a balance owing by the Principal to the Contractor, and later of:
(a)the finalisation of any dispute that has been commenced in accordance with Clause 31; and
(b)the finalisation of any claim, adjudication or proceeding commenced pursuant to or in connection with the Security of Payment Act, including proceedings commenced by the Principal to recover an amount the subject of a payment claim pursuant to the Security of Payment Act,
the Principal shall release to the Contractor any retention moneys or security then held by the Principal.”
4.CONTRACT DOCUMENTS
No Amendment
5.SUBCONTRACTING
Delete/Insert:
“
The Contractor shall not without the written approval of the Superintendent, which approval shall not be unreasonably withheld, subcontract any of the work under the Contract.
All subcontractors shall be local suppliers as described in the Queensland Procurement Policy. If a local supplier is unable to be provided, the Contractor shall provide evidence, satisfactory to the Superintendent of its efforts to source a local supplier when seeking approval of other than a local supplier.
Any request for approval to subcontract must be made by the Contractor to the Superintendent in the form attached to these Conditions.
In addition, the Contractor shall provide to the Superintendent such additional information which the Superintendent may reasonably request, including a copy of the proposed subcontract documents without prices.
Within 14 days after a request by the Contractor for approval made in accordance with this clause the Superintendent shall approve the subcontract or advise the Contractor of its objections.
The Contractor shall not, without the written approval of the Superintendent, allow -
(a)a subcontractor to assign or subcontract any of the work under the Contract; or
(b)the performance of any of the work under the Contract by any party (including without limitation a subcontractor) other than the Contractor or an approved subcontractor.
When seeking approval to sub subcontract pursuant to this clause the Contractor shall provide to the Superintendent such information and additional information which the Superintendent may reasonably request. The Superintendent may, in its entire discretion and without giving reasons, reject any such request for approval by the Contractor.
A request for approval to sub subcontract any of the work under the Contract pursuant to this clause must be made by the Contractor to the Superintendent in the form attached to these Conditions. ”
6.PROTECTION OF PEOPLE AND PROPERTY
Add the subclause number “6.1” and the subheading “Protection Measures” to the existing clause 6.
Add new subclause:
“
6.2Occupational Health and Safety Audit
6.2.1This Clause 6.2 will apply unless otherwise noted in the Annexure.
6.2.2In this Clause 6.2, the term “Accredited Auditor (Construction)” means a person accredited by Workplace Health and Safety Queensland as an occupational health and safety auditor to undertake auditing pursuant to the Work Health and Safety Act 2011(Qld).
6.2.3Within 14 days of the Date of Acceptance of Tender, the Contractor must engage an Accredited Auditor (Construction) to perform the functions specified in the Contract.
6.2.4The cost of performance by the Accredited Auditor (Construction) of the required functions will be reimbursed by the Principal in accordance with the provisions specified in the Contract. The reimbursable amount will be a debt due from the Principal to the Contractor.
6.2.5The Contractor must ensure that the Accredited Auditor (Construction) engaged under Clause 6.2.3 has not:
(a)in the two years prior to the Date of Acceptance of Tender, had a business or employment relationship with the Contractor including without limitation where the Accredited Auditor (Construction) has, either personally or as an employee or an agent of another person or entity, been involved in the development and/or maintenance of the Contractor’s occupational health and safety management system in any capacity other than by reason of having been engaged as an Accredited Auditor (Construction); or
(b)been engaged by the Contractor as an Accredited Auditor (Construction) more than three times within a 12 month period to perform the functions specified in the Contract.
6.2.6The Contractor must provide copies of all reports and any corrective action notices received from the Accredited Auditor (Construction) to the Superintendent within three days of receipt. In relation to corrective action notices, in addition to any other avenues available under the Contract:
(a)the Superintendent may direct the Contractor, by written notice, to carry out any required corrective action within the time specified in the Superintendent’s notice; or
(b)the Principal may take all necessary urgent action to protect the work under the Contract, and the cost incurred by the Principal shall be a debt due from the Contractor.
6.2.7A direction given under Clause 6.2.6(a) constitutes a direction under Clause 16.2.If such a direction is given, the Contractor must inform the Superintendent in writing immediately upon completion of the corrective actions.”
7.CARE OF THE WORK AND REINSTATEMENT OF DAMAGE
No amendment
8.DAMAGE TO PERSONS AND PROPERTY
No amendment
9.INSURANCE OF THE WORK UNDER THE CONTRACT
No amendment
10.PUBLIC LIABILITY INSURANCE
No amendment
11.INSURANCE OF EMPLOYEES
No amendment
12.INSURANCE PROVISIONS
No amendment
13.SUPERINTENDENT
Add new paragraph at the end of the existing clause:
“For the purposes of the Security of Payment Act, the Superintendent is deemed to be authorised to receive payment claims and to issue payment schedules on behalf of the Principal.”
14.REPRESENTATIVES
No amendment
15.SITE
No amendment
16.MATERIALS AND WORK
Quality of Materials and Work
No amendment
16.1Defective Work
Add to the end of the third paragraph:
“Until the cost of such work has been incurred by the Principal, the Principal may deduct the estimated cost of such work from payments to the Contractor as an amount due from the Contractor to the Principal.”
17.PROGRESS, PROGRAMMING AND SUSPENSION
Insert a new paragraph:
“The Contractor shall give the Superintendent reasonable advance notice of when the Contractor requires any information, materials, documents or instructions from the Superintendent or the Principal. ”
18.PRACTICAL COMPLETION
No amendment
19.EXTENSION OF TIME FOR PRACTICAL COMPLETION
Express the existing provisions as “19.1 Claims for Extensions of Time”
Delete the second paragraph and insert:
“The causes are –
(a)(i)any act, default or omission of the Principal, the Superintendent or an employee, consultant or agent of the Principal;
(ii)latent conditions; and
(b)those other than –
(i)breaches or omissions by the Contractor; and
(ii)industrial conditions or inclement weather occurring after the Date for Practical Completion.
Where more than one event causes concurrent delays and the cause of at least one of those events but not all of them, is not a cause referred to in (a) above then to the extent that the delays are concurrent, the Contractor shall not be entitled to an extension of time for Practical Completion. ”
Insert new subclauses:
“
19.1Separable Portions
The interpretations of –
(a)Date for Practical Completion;
(b)Date of Practical Completion;
(c)Practical Completion,
and Clauses 3, 7, 19, 21, 22 and 25 shall apply separately to each Separable Portion and references therein to the Works and to work under the Contract shall mean so much of the Works and the work under the Contract as is comprised in the relevant Separable Portion.
If the Contract does not make provision for the amount of security, retention moneys, liquidated damages or delay costs applicable to a Separable Portion, the respective amounts applicable shall be such proportion of the security, retention moneys, liquidated damages or delay costs applicable to the whole of the work under the Contract as the value of the Separable Portion bears to the value of the whole of the work under the Contract.
19.2Use of Partly Completed Works
If a part of the Works has reached a stage equivalent to that of Practical Completion but another part of the Works has not reached such a stage and the parties cannot agree upon the creation of Separable Portions, the Superintendent may determine that the respective parts shall be Separable Portions.
In using the Separable Portion that has reached Practical Completion, the Principal shall not hinder the Contractor in the performance of the work under the Contract. ”
20.DAMAGES FOR DELAY IN REACHING PRACTICAL COMPLETION
No amendment
21.DELAY OR DISRUPTION
No amendment
22.DEFECTS LIABILITY
Add to the end of the fourth paragraph:
“Until the cost of the work of rectification has been incurred by the Principal, the Principal may deduct the estimated cost of such work from payments to the Contractor as an amount due from the Contractor to the Principal.”
23.VARIATIONS
Insert a new paragraph after paragraph three:
“The margin for profit and overheads shall be the greater of:
(i)$150.00 (excluding GST); and
(ii)12½% of the value of work carried out by the Contractor’s own workers and 7½% of the amount properly payable by the Contractor for work carried out by others;”
24.CERTIFICATES AND PAYMENTS
Add the words “Subject to the prior receipt by the Superintendent of the information required by Clause 38.3,” at the beginning of the first line of paragraph one.
Delete “Within 14 days” in the first line of the third paragraph and insert in its place “Within 10 Business Days”.
Delete “28 days” in the first line of paragraph 5and insert in its place “15 Business Days”.
Add the following sentence to the end of the eighth paragraph:
“Nothing in this Contract shall oblige the Principal to pay for work that is not in accordance with the Contract.”