Clause 42.

0 Partial Occupation/ Taking Over By Government

42.0

Partial Occupation/ Taking Over By Government

42.1

If at any time before the whole of the Works have reached practical
Completion pursuant to clause 39, the Government with the consent of the
Contractor (which consent shall not be unreasonably withheld) shall take
possession of and occupy any part or parts of the same (any such part being
hereinafter in this Clause referred to as the relevant part), then
notwithstanding anything expressed or implied elsewhere in this Contract,

Certificate of Partial Occupation

(a) within seven (7) days from, the date on which the Government shall have
taken possession of the relevant part, the S.O shall issue a Certificate of
Partial Occupation in respect of the relevant part stating the estimated
value of the said relevant part, and for all the purposes of this Clause (but
for no other) the value so stated shall be deemed to be the total value of the
said relevant part ;
Defect Liability Period
(b) for the purposes of clauses 39 and 48 hereof, the relevant part shall be
deemed to have reached practical completion and the Defects Liability
Period in respect of the relevant part shall be deemed to have commenced
on the date on which the Government shall have taken possession and
occupied thereof;
Certificate of Making Good Defects
(c) at the end of the Defects Liability Period of the relevant part and if in the
opinion of the S.O any defect, imperfection, shrinkage or any other fault
whatsoever in respect of the relevant part which he may have required to be
made good under clause 48.1, shall have been good by the Contractor, the
S.O shall issues a certificate to that effect;
Reduction of Liquidated Ascertained
(d) if, before the time of completion of the whole of the Works or, if applicable
any section, a certificate of Practical Completion has been issued for any
part of the Works or of section, the rate of the liquidated and ascertained
damages for delay in completion of the remainder of the Works or of the
section shall, for any period of delay after the date stated in such Certificate
of Practical Completion, be reduced in the proportion which the value of the
part so certified bears to the value of the whole of the Works or section, as
applicable;

Insurance of the Works

(e) notwithstanding the partial occupation by the Government of the relevant
part of the Contractor shall insure and keep insured the Works in the
manner as stipulated under clause 18 and the Contractor shall give notice
to the insurer of such partial occupation; and
Performance Bond Not Affected
(f) it is expressly agreed that nothing contained in the preceding paragraphs
shall entitle the Contractor to the release of the Performance Bond or any
part thereof deposited by him under clause 13 hereof, the intention being
that the said Performance Bond or any part thereof shall be released or
refunded only upon the completion of making food at defects, imperfections,
shrinkages or other faults which may appear during the Defects Liability
Period and upon the giving of the Certificate of Completion of Making Good
Defects for the whole of the Works under clause 48 hereof

In this clause to permit the Government is intended to take early repossession

and occupation of part of the Works whilst the Contractor is still executing the
remainder. Before practical completion of the whole of the Works is achieved,
Clause 42 comes into effect only if the Government with the consent of the
Contractor takes possession of any part of the Works. A matter for the
Contractor is the decision whether to consent or not is entirely.
These have the effect of relieving the Contractor of responsibility for the relevant
part.
Paragraphs (a) to (f) of this clause may be summarized as follows:
Within seven days of the Government taking possession of the relevant
part, the Superintending Officer must issue a certificate of Partial Occupation
stating his estimate of the value of the relevant part. This value then becomes the
value of the relevant part for the purposes of this clause as well as for the
valuation for the issuance of the Final Certificate under clause 31. S.O. issue
Certificate of Partial Occupation to part of the project being occupied.
Practical completion of the relevant part is deemed to have occurred and
the Defect Liability Period for that part commences on the date the Government
takes possession and the obligation for defects under clause 48 apply from that
date. The Superintending Officer must than apply clause 45.4 the relevant part
and issue the certificate of Completion of Making Good Defects in respect of the
relevant part once all the defects have been made good. It can be of benefit to
both parties. For the contractor, it is likely to be more economical and efficient
for it to carry out remedial works itself than to pay the costs of another
contractor hired by the employer. From the employer's view, it will not need to
hire an alternative contractor to carry out the work, or to carry out the work
itself and reclaim the cost. The employer will also not run the risk that any
warranties provided by the original contractor may be affected by a third party

carrying out works on the site. If there is a contractual right for the contractor to
rectify defects, and the employer either does not notify the contractor that
rectification is needed or refuses access to the site, then the employer may be in
breach of contract. The claim is likely to be limited to the amount it would have
cost the original contractor to carry out the works, but the employer will still
have a claim for the cost of rectifying the defects. It will not be able to claim for
remedial works or working methods found not to be strictly necessary.
Employers should therefore give a consideration to the provisions in the
contract before hiring a new contractor to carry out remedial works.

If any Liquidated and Ascertained Damages become due from the

Contractor after the date the Government takes possession of the (e). For
example, if the Contract Sum is RM 10 million and the relevant part is RM 2.5
million, and if Liquidated and Damages fixed at a rate of RM 1,000 per day
become due after practical completion of the relevant part, those damages are to
be reduced by the quarter, leaving RM 750 per day to be paid by the Contractor.
S.O. issue Certificate of Completion of Making Good Defects on the relevant part
occupied when Defects Liability Period Ends. Once practical completion has been
certified, the defects liability period begins. Typically, the defects liability
period is six to twelve months. During this period, the client reports
any defects that arise in the works to the contract administrator who decides
whether they are in works that are not in accordance with the contract, or
whether they are maintenance issues. If the contract administrator considers
that they are defects, then they may issue instructions to thecontractor to make
good the defects within a reasonable time. At the end of the defects liability
period, the contract administrator prepares a schedule of defects, listing
those defects that have not yet been rectified, and agrees with the contractor the
date by which they will be rectified. Defects must be made good within a specific
time, and at the contractor's cost. It is the contractor's responsibility to identify
and rectify defects, not the client's or the contract administrator's, so if they do
bring defects to the contractor's notice, they should make clear that this is not a
comprehensive list of all defects. When the contract administrator considers that
all items on the schedule of defects have been made good, they issue a certificate
of making good defects. This brings about issuing of the final certificate and the
effect of releasing the remainder of any retention.
The obligation of the Contractor to insure the whole of the works
continues but the Contractor must notify the insurer of the Government partial
occupation of the relevant part.
The performance bond deposited is unaffected; hence the bond is not
released nor reduced in value for the relevant part. Though not expressed, this
should similarly apply to the performance guarantee. A performance bond is a
bond giving security for the carrying out of a contract, where a bond is
performed by which one person commits him to another to do something or
refrain from doing something. In construction contracts, a performance bond is a
bond taken out by the contractor, usually with a bank or insurance company in
return for payment of a premium, for the benefit of and at the request of the

employer. In other words, the Contractor is not permitted to carry out any work
under the Contract unless and until the performance bond is given. The failure of
the Contractor to give the performance bond may amount to a fundamental
breach of contract entitling the Government to discharge the Contract and sue
the Contractor for damages accordingly. By clause 37(b), the performance bond
is required to be maintained for such period as provided in the PWD Bond, until
6 months after the expiry of the Defects Liability Period stated in the Contract
calculated from the date of completion of the Works or any authorized extension
or if the contract is determined, until one year after the date of determination.

There is in principle nothing to prohibit the applicability of this clause even if the
Works are to be executed in phases following clause 41 of these conditions
provided that the relevant part is taken over practical completion of that phase.

Clause 45.0 Investigation By The Government And Other Persons In Case Of

Accident, Failure or Other Event
45.0

Investigation By The Government And Other Persons In Case Of Accident,

Failure or Other Event
Where the Government, its employee or any person or body appointed or
authorised by it carries out any investigation in relation to any accident;
failure or other event which has occurred to, in or in connection with the
Works or any part thereof for the purpose of determining the cause or
reason for the said accident, failure or event, the Contractor shall render all
such necessary assistance and facilities as may be required by the
Government, its employee or such person or body, including the giving of
access to all specification, designs, records and other available information
relating the Works.

This clause makes it obligatory on the Contractor to give all necessary assistance
including access and provision of information such as designs, records and etc to
the Government or other such person or bodies authorized by the Government
for the purpose of determining the cause of any accident, failure or other
incidents that has occurred to or in connection with the Works. Typical examples
of such incidents include site incidents that may have resulted in death personal
injury or collapse of constructed structures of the Works. The accident
investigation process involves the report the accident occurrence to a designated
person within the organization, provide first aid and medical care to injured
person and prevent further injuries or damage, investigate the accident, identify
the causes, report the findings, develop a plan for corrective action, implement
the plan, evaluate the effectiveness of the corrective action and make changes for
continuous improvement. In this way, one is most likely to be able to observe the
conditions as they were at the time, prevent disturbance of evidence, and
identify witnesses. The tools that members of the investigating team may need
which is pencil, paper, camera, film, camera flash, tape measure, and etc should
be immediately available so that no time is wasted. Preconceived notions may
result in some wrong paths being followed while leaving some significant facts
uncovered, as mentioned above, an open mind is necessary in accident
investigation. The information that follows is intended to be a general guide for
supervisors. Always look for deeper causes. There are few reasons to investigate
a workplace accident, which is most importantly, to find out the cause of
accidents and to prevent similar accidents in the future, to fulfil any legal
requirements, to determine the cost of an accident, to determine compliance
with applicable safety regulation and to process workers' compensation claims.
Incidents that involve no injury or property damage should still be investigated
to determine the hazards that should be corrected. Some jurisdictions provide
guidance such as requiring that it must be conducted jointly, with both
management and labour represented, or that the investigators must be
knowledgeable about the work processes involved.