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HB 1402000
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John L Pilley LLB, DipCommLaw, FIAMA Barrister and Solicitor of the Supreme Courts of Victoria and Tasmania
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All rights are reserved. No part of this work may be reproduced or copied in any form or by any means, electronic or mechanical, including photocopying, without the written permission of the publisher.
Published by Standards Australia International Ltd, GPO Box 5420, Sydney, NSW 2001, Australia Design and typesetting by Write Result, 22 Firwood Trail, Woodvale WA 6026 email: write@iinet.net.au
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ISBN 0 7337 3600 9 Australian Standard is a registered trade mark Copyright Standards Australia International
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Preface
AS 40001997 in many respects breaks new ground in the way that general conditions of contract are prepared by Standards Australia. AS 21241992 its predecessors and the suite of contracts derived from them, have traditionally not only set out the obligations of the parties to each other, i.e. what each party is to do under the contract but also how they are to do it. This no doubt is due to having as their antecedent, contract conditions developed originally by the Institution of Engineers Australia in the mid-1920s. The OB/3 Committee responsible for the preparation of general conditions of contract, has broken new ground with AS 40001997 by seeking to remove from the contract conditions themselves, much of the administrative procedure concerning a project governed by that set of contract conditions. One immediate benefit is that AS 40001997 has less than half the words than contained in AS 21241992. This also should make administration of the contract easier especially as the options and alternatives contained in AS 21241992 are now transferred to the Annexure which in itself makes the Annexure a far more user-friendly document. This fundamental change of style has made this Handbook an important supplementary tool to AS 40001997. Consequently whilst this Manual is titled a Handbook, it is far more extensive and provides much more guidance to the users of AS 40001997 than Handbooks prepared for earlier forms of Standards Australia's contract conditions. Acknowledgements I must sincerely thank Brian Farmer of Capital Insight, Sydney, the Chairman of the OB/3 Committee who has had the thankless task of proofreading and correcting the earlier drafts of this Manual. His suggestions and advice have contributed greatly to the substantial improvements to the Manual compared with my earlier efforts. I would like particularly to acknowledge the unflagging assistance of my secretaries, Mary Acutt and especially Kelley Lorback, who bore the burden of typing this substantial manual. I also express my gratitude to Nigel Shaw of Write Result of Perth, WA who typeset the document and provided considerable assistance in improving its layout and readability. Finally, I would like to thank members of the OB/3 Committee for their helpful suggestions and comments and particularly to Susanne Gerstmyer of Standards Australia who had the responsibility to ensure that the Manual was produced and published. John L Pilley June 2000
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Contents
Preface
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PART 1: General
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1
1 2 3 3 4 5 5 5 6 6
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The head contracts in the AS 4000 suite of contracts The subcontracts in the AS 4000 suite of contracts Drafting principles Comparison with AS 2124 suite of contracts How to use AS 40001997 and this manual Definitions Clauses, subclauses and paragraphs and and or Items Drafting style and set out
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10 14 15 16 17
General information Formal instrument of agreement Documents which do not form part of the Contract Optional and alternative clauses Forms in Part 4 relevant to this Chapter 3
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18 20 22 22 23
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Introduction Annexure Part A Completion of Annexure Part A Specific guidance for completion of Annexure Part A Separable portions: Annexure Part A Annexure Part B to AS 40001997 Annexure Part C Approved form of unconditional undertaking
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10 Contract formalities
10.1 10.2 10.3 10.4 10.5 10.6 10.7 10.8 10.9 10.10 10.11 10.12 10.13 10.14 10.15
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Creation of the Contract Provisional sums Separable portions Waiver of conditions Forms in Part 4 relevant to this Chapter 9
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104 105 123 129 129 132 135 135 136 141 143 144 148 156 158
Interpretation and construction of Contract Definitions Provisions concerning the construction of the Contract Formal Contract documentation Interpretation of the Contract Supply of documents Confidentiality Media releases Approval of subcontractors Intellectual property rights Assignment Security Insurance Service of notices Forms in Part 4 relevant to this Chapter 10
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160 162 163 166 167 170 171 171
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12.1 12.2 12.3 12.4 12.5 12.6 12.7 12.8 12.9 12.10 12.11 12.12 12.13 12.14 12.15 12.16 12.17 12.18
Nature of the Contract Care of the work and protection of people and property Directions The role and functions of the Superintendent Legislative requirements Discrepancies in documents Supply of documents Setting out the Works Materials, labour and construction plant Access by Principal and others Discovery of minerals, fossils, relics, etc. Latent conditions Quality of work Defective work Examination and testing Cleaning up Insurance claims Forms in Part 4 relevant to this Chapter 12
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16 Security of payment
16.1 16.2 16.3
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Provisions relevant to payment claims, payments and payment certificates Assessments and certificates by the Superintendent Moneys due and moneys due and payable General obligation as to payment Calculation of the payment Unfixed plant and materials Final payment claim and final certificate Notification of claims Miscellaneous payment provisions Final payment Forms in Part 4 relevant to this Chapter 15
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Specific provisions Additional provisions relevant to security of payment Forms in Part 4 relevant to this Chapter 16
17 Completion
17.1 17.2 17.3 17.4
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18 Termination
18.1 18.2 18.3 18.4 18.5 18.6 18.7
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Practical completion Defects liability Final payment claim and final certificate Forms in Part 4 relevant to this Chapter 17
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344 345 356 359 360 362 364
19 Dispute resolution
19.1 19.2 19.3 19.4 19.5 19.6
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General Default of the Contractor Default by the Principal Effects of termination by either party Insolvency of either party Termination by frustration of the Contract Forms in Part 4 relevant to this Chapter 18
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General The notice of dispute Settlement of the dispute Arbitration of the dispute Right to take other proceedings Forms in Part 4 relevant to this Chapter 19
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PART 5: Appendices
1 Table of comparative clauses between AS 21241992 and AS 40001997 2 Comparative analysis of AS 40001997 with AS 21241992 3 Special user requirements A1 A7 A40
PART 6: References
Clauses and Items
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INDEX
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PART 1
CHAPTER 1
1.1
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AS 40001997 is intended for use as General conditions of contract primarily for construct only projects of a major nature. AS 40001997 can be used when payment is to be made by way of lump sum or by way of a schedule of rates or a combination of both. AS 40001997 has provision for a bill of quantities which may be used as part of the Contract (Alternative 1 of subclause 2.2) or not as part of the Contract (Alternative 2 of subclause 2.2). Alternative 2 of subclause 2.2 also provides that a bill of quantities not forming part of the Contract may nevertheless be priced if that is required. AS 40001997 also provides for selected contractors (see subclauses 9.3 and 9.4) and for novation by the Principal of a prior subcontract to the Contractor (see subclause 9.4). AS 40001997 requires administration by a Principal-appointed Superintendent who may appoint Superintendents Representatives.
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* See note (1) on page 6 of this Manual. See note (2) on page 6 of this Manual.
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HB 140-2000 (Reference Use Only), Administration manual for AS 4000-1997 General conditions of contract
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