BIDP Standard FORMS & JBCC Minor WORKS Commentary. ARCPE SEMINAR compiled BY FRED PHIRI Arch.BW th NOVEMBER 2017

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1 BIDP Standard FORMS & JBCC Minor WORKS Commentary ARCPE SEMINAR compiled BY FRED PHIRI Arch.BW th NOVEMBER 2017

2 Types of Contract Fixed Price Contracts For Specified work for a sum not adjustable in the price of goods or labour. Ideal for minor building works or Maintenance Example: BIDP Minor Building Works Contract Remeasurement Contracts In remeasurement contracts the price is based on quantities and there is an express right for the works to be remeasured after completion Example: BIDP Standard Form (With Quantities); JBCC Minor Works; JBCC Principal Building Agreement; FIDIC Lump sum Contracts This is a contract where a specific Total Figure is quoted but it should be Noted that the total price is adjustable on account of : Variations Fluctuations in Price of goods and Services Re-valuation of provisional sums Loss and/or expense Example: BIDP Standard Form of Contract Without Quantities; JBCC Minor Works

3 JBCC Minor Works Agreement 5.1 March 2014 This agreement is intended for use where: The works are not complex The employer appoints: A principal agent to administer the agreement Other agents for specific aspects of the works Direct contractors for specialised work or installation not undertaken by the contractor This agreement is suitable but not limited for use where: The contractor is a small to medium enterprise The employer carries the major liabilities related to the works The employer is responsible for the primary insurances related to the works

4 JBCC Minor Works Agreement 5.1 March 2014 This agreement is not suitable where the works requires: The appointment of nominated or selected subcontractors Contract price adjustment (escalation) provisions and is not considered suitable where: the works is of a complex nature The anticipated construction period is longer than nine months The necessary contract documentation is not complete and available at tender stage Sectional completions are required

5 BIDP Standard Form of Building Contract Private Edition (With Quantities Edition 2006 Revision) Based on Detailed drawing And Bills of Quantities Has its Genesis in the RIBA / JCT Forms of Contract. Is the oldest Form of Contract in use in Private Sector in Botswana today.

6 BIDP Standard Form of Building Contract Private Edition (Without Quantities Edition 2006 Revision) Based on detailed Drawings and Specifications Design Intent must be properly communicated to contractor through preparation of very detailed drawings and specification. The onus is on the contractor to do his own take off (measurements) from the detailed drawings Has provision for employment of Quantity Surveyor

7 BIDP Agreement For Minor Building Works

8 Contract Administration

9 Comparisons & Contrasts JBCC Minor Works & BIDP Standard Forms of Contract BIDP Administered by Architect Contract can be under Seal or Under Hand Prescription Period different depending on how contract is executed (6Years or 12Years) Custody of contract Documents: Original kept by Architect or QS JBCC Administered by Principal Agent Contract is under hand with a 5year Prescription Period from Issue of Final Completion Certificate (Botswana Law has a 6Year Prescription Period) Custody of contract Documents: Principal Agent originals and parties are issued with copies.

10 Comparisons & Contrasts JBCC Minor Works & BIDP Standard Forms of Contract (contd.) BIDP JBCC Insurance i) Clauses 19 (workmen s compensation, Injury to persons and property Contractor Insures ii) Clause 20(A) New Work Contractor Insures iii) Clause 20(B) New Work Employer Insures iv) Clause 20(C) Alterations and Extensions Employer Insures Insurance : Clause 8 Employers Responsibility save for Clauses 8.2 and 8.5 and 8.6 (contractor s Employees, construction equipment and vehicles and Insurance Deductible

11 Comparisons & Contrasts JBCC Minor Works & BIDP Standard Forms of Contract (contd.) BIDP JBCC Clauses 30.4 / 36 Security This comes in the Form of Retention which is normally set at 10% of the certified value to a limit of 5% of the contract amount Clause 36 has an optional provisional for a Surety Bond which is set at 10% of the contract sum. This Clause can be deleted if not required Clause 9 Security Both Parties to the contract are required to provide the requisite security The contractor can opt for Retention at 8% of the Certified Value to a limit of 4% or can submit JBCC Guarantee for Construction Employer is obliged to submit a Guarantee for payment. Submission of which will relieve the contractor right to lien on the works

12 Comparisons & Contrasts JBCC Minor Works & BIDP Standard Forms of Contract (contd.) BIDP JBCC Clause 2 Architect s Instructions Instructions must be in writing Contractor must execute instructions within 7 days, failure of which employer can engage others to carry out the instruction Oral Instructions should be confirmed back in writing within 7 days for them to have effect Contractor may request written confirmation from architect regarding which clause the architect is empowered to issue the instruction Clause 14 Contract Instructions Contractor obliged to comply and Duly execute contract instructions Oral Instructions have no force or effect There is no obligation on a contractor to carry out a contract instruction for additional work after practical completion has been certified

13 Comparisons & Contrasts JBCC Minor Works & BIDP Standard Forms of Contract (contd.) BIDP JBCC Extension of Time Provisions Clause 23 Force Majeure Exceptionally Inclement Weather By reason of Loss or Damage From Perils specified under Clause 23 Civil Commotion, workmen strikes AI s to cover discrepancies in contract documents; variations; postponement of work Late information (request for information to have been specified in writing in reasonable time IRO date of practical completion) Nominated Subcontractors Artists and Tradesmen and others engaged by the employer doing work not forming part of the contract Opening up of covered work for inspection. Extension of Time Provisions Clause 17 Adverse Weather conditions Inability to obtain materials and goods Making good physical loss and damage to the works Exercise of Statutory Powers Force Majeure Delayed possession of site Making Good of Physical loss & Repairing of damage where the contractor is not at risk Opening up of work which is found to be in accordance with the contract Late Issue of construction Information

14 Comparisons & Contrasts JBCC Minor Works & BIDP Standard Forms of Contract (contd.) BIDP JBCC Extension of Time Provisions Clause 23 Inability to secure labour, goods, materials etc. beyond the contractor s control (This is optional and can be deleted) EOT Notices Contractor required to forthwith, give written notice of delay to architect. The Architect is required, as soon as he is able to, to estimate the length of delay beyond the date or time aforesaid, make in time a fair and reasonable extension of time Extension of Time Provisions Clause 17 Late supply of free issue materials where the employer is responsible Default by Principal agent or employer Act or omission by Direct Subcontractor Utilities connection not available Suspension of the works EOT Notices Contractor must report at the next site meeting, cause and days claimed. The Principal shall determine claim and revise date for practical completion within 10 working days. Record of details of delay & adjustments to be recorded in site meeting minutes

15 Comparisons & Contrasts JBCC Minor Works & BIDP Standard Forms of Contract (contd.) BIDP JBCC Clause 29 Artists, Tradesmen or others engaged by the Employer Contractor to permit direct contractor s to install works as part of the works. No obligation on contractor to program the works Claim Expense and/or loss due to direct contractor s default Payment is the responsibility of the employer outside the agreement No privity of contract between Contractor and Artists, tradesmen Clause 13 Direct contractors Contractor to permit direct contractor s to install works as part of the works. Works to be programmed Claim Expense and/or loss due to direct contractor s default Payment of the Direct contractor is the responsibility of the employer outside the agreement No privity of contract between Contractor and Direct contractor

16 Comparisons & Contrasts JBCC Minor Works & BIDP Standard Forms of Contract (contd.) BIDP Clause 22 Liquidated & Ascertained Damages JBCC Clause 18.2 Penalty for noncompletion Clause 22 requires architect to certify in writing that that the works ought to have been reasonably completed before LAD s can be effected 18.2 Where the employer elects to levy such penalty, on notice thereof, to the contractor, the principal agent shall determine the amount due Liquidated and Ascertained Damages: These are a reasonable pre-estimate of the losses the employer is likely to incur if work is completed late. Such sum is enforceable if due to his own default the contractor completes work late A penalty of non-completion is a sum included in the contract which is intended to penalise the contractor for late completion and can sometimes be far greater than the employer s estimated loss

17 Comparisons & Contrasts JBCC Minor Works & BIDP Standard Forms of Contract (contd.) BIDP JBCC Clause 25 Grounds For Termination by Employer Suspension of the works without reasonable cause Contractor s failure to proceed with regularity and diligence Contractors refusal to comply with architect s written notice to remove defective work or improper materials Contractor s failure to comply with Clause 17 (assignment or subletting) Bankruptcy (Forthwith determination) Clause 21 Grounds For Termination by Employer Contractor s Failure to provide JBCC Guarantee for Construction Contractor s failure to proceed with the works Contractor s failure to timeously comply with contract Instructions. Employer s right to terminate cannot be exercised where the employer is in material breach

18 Comparisons & Contrasts JBCC Minor Works & BIDP Standard Forms of Contract (contd.) BIDP JBCC Clause 26 Grounds For Suspension /Termination by Contractor Employer s Failure to honour certificates within the stipulated period Termination can be forth with after 7- Days Notice Employer s Interference or obstruction of any certificate due to the contractor Suspension of works for a period stated in the appendix due to force majeure; loss or damage from Clause 20 risks; AI to cover discrepancy or divergence in contract documentation; architect s failure to issue necessary instructions, drawings, details or levels etc. in due time; delay on the part of artists, tradesmen; opening up of work Employer s Bankruptcy Clause 21 Grounds For Suspension /Termination by Contractor Employer s Failure to provide JBCC Guarantee for Payment Employer s failure to give possession of the site Employer s failure to pay certified amount Employers failure to appoint Principal Agent or other Agents Employer s interference with Principal Agents independent judgement Principal Agents failure to issue payment Certificate Employer s failure to effect insurance

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