Supply and delivery of small plant machinery – metrorail gauteng (36-Month as-and-when contract)

The tender is for the appointment of a service provider for the supply and delivery of plant machinery in the Metrorail Gauteng Region on an 'as and when required basis' for a period of thirty-six (36) months. Bidders must state particulars of works successfully carried out, including client, nature of works, contract/project period, value of works, and telephone number.

{

"closingDate": "2026-08-65",

"closingTime": "12H00",

"briefingSession": {

"date": null,

"time": null,

"venue": "EMENT OF WORKS SUCCESSFULLY CARRIED OUT BY BIDDER 7",

"is_compulsory": true

}

}

A compulsory tender briefing meeting will take place on 21 September 2026 at 10H00 at PRASA, Shosolozajunction, 6th Floor, Cnr Leyds and Simmonds, Braamfontein, Johannesburg. Bidders failing to attend the compulsory briefing session will be disqualified. Arrangements can be made to make bids available before closing date provided the prospective bidder has attended the compulsory briefing meeting.

{"name":null,"email":null,"phone":null,"department":"/ PUBLIC ENTITY)","address":"FILL IN AND SIGN A WRITTEN CONTRACT FORM (SBD7)."}

Bidders must submit the following forms: Form A (Invitation to Bid), Form B (Terms and Conditions for Bidding), Form D (Site Inspection/Pre-tender Briefing Session - Compulsory), Form E (Statement of Works Successfully Carried Out), Form F (Security Screening Form), Form G (Acknowledgment), SBD 4 (Declaration of Interest), SBD 5 (National Industrial Participation Programme), SBD 6.1 (Preference Points Claim Form).

The applicable preference point system is either 90/10 or 80/20. The formula for price points is Ps = 80(1 - (Pt-Pmin)/Pmin) or Ps = 90(1 - (Pt-Pmin)/Pmin). Bidders must attend the compulsory tender briefing. Bidders must not be listed on the Register for Tender Defaulters or the List of Restricted Suppliers.

The National Industrial Participation (NIP) Programme, which is applicable to all government

procurement contracts that have an imported content, became effective on the 1 September 1996.

The NIP policy and guidelines were fully endorsed by Cabinet on 30 April 1997. In terms of the

Cabinet decision, all state and parastatal purchases / lease contracts (for goods, works and

services) entered into after this date, are subject to the NIP requirements. NIP is obligatory and

therefore must be complied with. The Industrial Participation Secretariat (IPS) of the Department of

Trade and Industry (DTI) is charged with the responsibility of administering

the programme.

1 pillars of the programme

1.1 The NIP obligation is benchmarked on the imported content of the contract. Any

contract having an imported content equal to or exceeding US$ 10 million or other currency

equivalent to US$ 10 million will have a NIP obligation. This threshold of US$ 10 million can

be reached as follows:

(a) Any single contract with imported content exceeding US$10 million.

or

(b) Multiple contracts for the same goods, works or services each with imported

content exceeding US$3 million awarded to one seller over a 2 year period

which in total exceeds US$10 million.

or

(c) A contract with a renewable option clause, where should the option be

exercised the total value of the imported content will exceed US$10 million.

or

(d) Multiple suppliers of the same goods, works or services under the same

contract, where the value of the imported content of each allocation is equal to

or exceeds US$ 3 million worth of goods, works or services to the same

government institution, which in total over a two (2) year period exceeds

US$10 million.

16 | P a g e

Appointment of a service provider for the supply and delivery

Of small plant machinery in the metrorail gauteng region on

An “as and when required basis” for a period of thirty- six (36)

Months

Rft number: 65/08/2026/gau-(perway)

1.2 The NIP obligation applicable to suppliers in respect of sub-paragraphs 1.1 (a) to 1.1 (c)

above will amount to 30 % of the imported content whilst suppliers in respect of

paragraph 1.1 (d) shall incur 30% of the total NIP obligation on a pro-rata basis.

1.3 To satisfy the NIP obligation, the DTI would negotiate and conclude agreements such as

investments, joint ventures, sub-contracting, licensee production, export promotion,

sourcing arrangements and research and development (R&D) with partners or suppliers.

1.4 A period of seven years has been identified as the time frame within which to

discharge the obligation.

2 requirements of the department of trade and industry

2.1 In order to ensure effective implementation of the programme, successful

bidders (contractors) are required to, immediately after the award of a contract

that is in excess of R10 million (ten million Rands), submit details of such a

contract to the DTI for reporting purposes.

2.2 The purpose for reporting details of contracts in excess of the amount of R10

million (ten million Rands) is to cater for multiple contracts for the same goods,

works or services; renewable contracts and multiple suppliers for the same

goods, works or services under the same contract as provided for in paragraphs

1.1.(b) to 1.1. (d) above.

3 bid submission and contract reporting requirements of

Bidders and successful bidders (contractors)

3.1 Bidders are required to sign and submit this Standard Bidding Document (SBD 5)

together with the bid on the closing date and time.

3.2 In order to accommodate multiple contracts for the same goods, works or

services; renewable contracts and multiple suppliers for the same goods, works

or services under the same contract as indicated in sub-paragraphs 1.1 (b) to 1.1

(d) above and to enable the DTI in determining the NIP obligation, successful

17 | P a g e

Appointment of a service provider for the supply and delivery

Of small plant machinery in the metrorail gauteng region on

An “as and when required basis” for a period of thirty- six (36)

Months

Rft number: 65/08/2026/gau-(perway)

bidders (contractors) are required, immediately after being officially notified about

any successful bid with a value in excess of R10 million (ten million Rands), to

contact and furnish the DTI with the following information:

• Bid / contract number.

• Description of the goods, works or services.

• Date on which the contract was accepted.

• Name, address and contact details of the government institution.

• Value of the contract.

• Imported content of the contract, if possible.

3.3 The information required in paragraph 3.2 above must be sent to the Department

of Trade and Industry, Private Bag X 84, Pretoria, 0001 for the attention of Mr

Elias Malapane within five (5) working days after award of the contract. Mr

Malapane may be contacted on telephone (012) 394 1401, facsimile (012) 394

2401 or e-mail at [email protected] for further details about the programme.

4 process to satisfy the nip obligation

4.1 Once the successful bidder (contractor) has made contact with and furnished the

DTI with the information required, the following steps will be followed:

a. the contractor and the DTI will determine the NIP obligation;

b. the contractor and the DTI will sign the NIP obligation agreement;

c. the contractor will submit a performance guarantee to the DTI;

d. the contractor will submit a business concept for consideration and approval by

the DTI;

e. upon approval of the business concept by the DTI, the contractor will submit

detailed business plans outlining the business concepts;

f. the contractor will implement the business plans; and

g. the contractor will submit bi-annual progress reports on approved plans to the

DTI.

4.2 The NIP obligation agreement is between the DTI and the successful bidder

(contractor)and, therefore, does not involve the purchasing institution.

18 | P a g e

Appointment of a service provider for the supply and delivery

Of small plant machinery in the metrorail gauteng region on

An “as and when required basis” for a period of thirty- six (36)

Months

Rft number: 65/08/2026/gau-(perway)

Bid number ......................................... Closing date:....................................

Name of bidder................................................................................................

Postal address ................................................................................................

................................................................................................

Signature............................................ Name (in print)...................................

Date..................................................

19 | P a g e

Appointment of a service provider for the supply and delivery

Of small plant machinery in the metrorail gauteng region on

An “as and when required basis” for a period of thirty- six (36)

Months

Rft number: 65/08/2026/gau-(perway)

Sbd 6.1

Preference points claim form in terms of the preferential procurement

Regulations 2022

This preference form must form part of all tenders invited. It contains general information and

serves as a claim form for preference points for specific goals.

Nb: before completing this form, tenderers must study the general

Conditions, definitions and directives applicable in respect of the

Tender and preferential procurement regulations, 2022

1. General conditions

1.1 The following preference point systems are applicable to invitations to tender:

• the 80/20 system for requirements with a Rand value of up to R50 000 000 (all

applicable taxes included); and

• the 90/10 system for requirements with a Rand value above R50 000 000 (all

applicable taxes included).

1.2 To be completed by the organ of state

(delete whichever is not applicable for this tender).

a) The applicable preference point system for this tender is the 90/10 preference point

system.

b) The applicable preference point system for this tender is the 80/20 preference point

system.

c) Either the 90/10 or 80/20 preference point system will be applicable in this tender. The

lowest/ highest acceptable tender will be used to determine the accurate system once

tenders are received.

1.3 Points for this tender (even in the case of a tender for income-generating contracts) shall

be awarded for:

(a) Price; and

(b) Specific Goals.

1.4 To be completed by the organ of state:

The maximum points for this tender are allocated as follows:

Points points

Price 90 80

Specific goals 10 20

Total points for Price and SPECIFIC GOALS 100 100

20 | P a g e

Appointment of a service provider for the supply and delivery

Of small plant machinery in the metrorail gauteng region on

An “as and when required basis” for a period of thirty- six (36)

Months

Rft number: 65/08/2026/gau-(perway)

1.5 Failure on the part of a tenderer to submit proof or documentation required in terms of this

tender to claim points for specific goals with the tender, will be interpreted to mean that

preference points for specific goals are not claimed.

1.6 The organ of state reserves the right to require of a tenderer, either before a tender is

adjudicated or at any time subsequently, to substantiate any claim in regard to preferences,

in any manner required by the organ of state.

2. Definitions

(a) “tender” means a written offer in the form determined by an organ of state in response to

an invitation to provide goods or services through price quotations, competitive tendering

process or any other method envisaged in legislation;

(b) “price” means an amount of money tendered for goods or services, and includes all

applicable taxes less all unconditional discounts;

(c) “rand value” means the total estimated value of a contract in Rand, calculated at the time

of bid invitation, and includes all applicable taxes;

(d) “tender for income-generating contracts” means a written offer in the form determined by

an organ of state in response to an invitation for the origination of income-generating

contracts through any method envisaged in legislation that will result in a legal agreement

between the organ of state and a third party that produces revenue for the organ of state,

and includes, but is not limited to, leasing and disposal of assets and concession contracts,

excluding direct sales and disposal of assets through public auctions; and

(e) “the Act” means the Preferential Procurement Policy Framework Act, 2000 (Act No. ).

3. Formulae for procurement of goods and services

3.1. Points awarded for price

3.1.1 The 80/20 or 90/10 preference point systems

A maximum of 80 or 90 points is allocated for price on the following basis:

80/20 or 90/10

Pt–P min Pt–P min

Ps = 80 (1 − ) or Ps = 90 (1 − )

P min P min

Where

Ps = Points scored for price of tender under consideration

Pt = Price of tender under consideration

Pmin = Price of lowest acceptable tender

21 | P a g e

Appointment of a service provider for the supply and delivery

Of small plant machinery in the metrorail gauteng region on

An “as and when required basis” for a period of thirty- six (36)

Months

Rft number: 65/08/2026/gau-(perway)

3.2. Formulae for disposal or leasing of state assets and income

Generating procurement

3.2.1. Points awarded for price

A maximum of 80 or 90 points is allocated for price on the following basis:

80/20 or 90/10

Pt–P max Pt–P max

Ps = 80 (1 + ) or Ps = 90 (1 + )

P max Pmax

Where

Ps = Points scored for price of tender under consideration

Pt = Price of tender under consideration

Pmax= Price of highest acceptable tender

4. Points awarded for specific goals

4.1. In terms of Regulation 4(2); 5(2); 6(2) and 7(2) of the Preferential Procurement Regulations,

preference points must be awarded for specific goals stated in the tender. For the purposes

of this tender the tenderer will be allocated points based on the goals stated in table 1 below

as may be supported by proof/ documentation stated in the conditions of this tender:

4.2. In cases where organs of state intend to use Regulation 3(2) of the Regulations, which states

that, if it is unclear whether the 80/20 or 90/10 preference point system applies, an organ of

state must, in the tender documents, stipulate in the case of—

(a) an invitation for tender for income-generating contracts, that either the 80/20 or 90/10

preference point system will apply and that the highest acceptable tender will be used

to determine the applicable preference point system; or

(b) any other invitation for tender, that either the 80/20 or 90/10 preference point system

will apply and that the lowest acceptable tender will be used to determine the

applicable preference point system,

then the organ of state must indicate the points allocated for specific goals for both the 90/10

and 80/20 preference point system.

22 | P a g e

Appointment of a service provider for the supply and delivery

Of small plant machinery in the metrorail gauteng region on

An “as and when required basis” for a period of thirty- six (36)

Months

Rft number: 65/08/2026/gau-(perway)

Table 1: Specific goals for the tender and points claimed are indicated per the table below.

(Note to organs of state: Where either the 90/10 or 80/20 preference point system is

applicable, corresponding points must also be indicated as such.

Note to tenderers: The tenderer must indicate how they claim points for each preference point

system.)

Number of Number of Evidence

points points

claimed

allocated (80/20The specific goals

system)allocated points in (80/20 system)

terms of this tender (To be (To be

completed completed by

by the the organ of

tenderer) state)

Black Women owned 4 Certified copy of ID Documents of the

Owners

Black Youth owned 4 Certified copy of ID Documents of the

Owners

Owned by people 4 Municipal/ESKOM bill or letter from

living in rural areas Induna/Chief confirming

residential address not

older than 3 months

EME or QSE 51% 4 Certified copy of B-BBEE certificate

black owned provided by CIPC or Sworn Affidavit

Owned by black 4 Certified copy of ID Documents of the

persons with Owners and Doctor’s note confirming

disabilities the disability

Declaration with regard to company/firm

4.3. Name of company/firm...............................................................................

4.4. Company registration number: .....................................................................

4.5. Type of company/ firm

 Partnership/Joint Venture / Consortium

 One-person business/sole propriety

 Close corporation

 Public Company

 Personal Liability Company

 (Pty) Limited

 Non-Profit Company

 State Owned Company

23 | P a g e

Appointment of a service provider for the supply and delivery

Of small plant machinery in the metrorail gauteng region on

An “as and when required basis” for a period of thirty- six (36)

Months

Rft number: 65/08/2026/gau-(perway)

[Tick applicable box]

4.6. I, the undersigned, who is duly authorised to do so on behalf of the company/firm, certify

that the points claimed, based on the specific goals as advised in the tender, qualifies the

company/ firm for the preference(s) shown and I acknowledge that:

i) The information furnished is true and correct;

ii) The preference points claimed are in accordance with the General Conditions as

indicated in paragraph 1 of this form;

iii) In the event of a contract being awarded as a result of points claimed as shown in

paragraphs 1.4 and 4.2, the contractor may be required to furnish documentary proof

to the satisfaction of the organ of state that the claims are correct;

iv) If the specific goals have been claimed or obtained on a fraudulent basis or any of the

conditions of contract have not been fulfilled, the organ of state may, in addition to any

other remedy it may have –

(a) disqualify the person from the tendering process;

(b) recover costs, losses or damages it has incurred or suffered as a result

of that person’s conduct;

(c) cancel the contract and claim any damages which it has suffered as a

result of having to make less favourable arrangements due to such

cancellation;

(d) recommend that the tenderer or contractor, its shareholders and

directors, or only the shareholders and directors who acted on a

fraudulent basis, be restricted from obtaining business from any organ

of state for a period not exceeding 10 years, after the audi alteram

partem (hear the other side) rule has been applied; and

(e) forward the matter for criminal prosecution, if deemed necessary

..............................................

Signature(s) of tenderer(s)

Surname and name: ................................................................

Date: ...............................................................

Address: ...............................................................

...............................................................

...............................................................

...............................................................

24 | P a g e

Bidders must state particulars of works successfully carried out, including client, nature of works, contract/project period, value of works for which bidder was directly responsible, and telephone number.

Form a: invitation to bid 2

Form b: terms and conditions for bidding 4

Form d: site inspection / pre-tender briefing session(compulsory) 6

Form e: statement of works successfully carried out by bidder 7

Form f: security screening form 8

Form- g: acknowledgment 10

Sbd 4: declaration of interest 10

Sbd 5: the national industrial participation programme 14

Sbd 6.1: Preference points claim form in terms of the preferential

Procurement regulations 2022 16

1 | P a g e

Site inspection / pre-tender briefing session (compulsory)

Request number: 65/08/2026/GAU-(PERWAY)

inspection / tender briefing session to which this enquiry relates.

Bidders must register on the Central Supplier Database (CSD) to upload mandatory information: business registration, directorship, and other particulars. Tax compliance status (TCS) or PIN may be obtained via e-filing. Bidders must not be listed on the Register for Tender Defaulters or the List of Restricted Suppliers. Failure to provide any required particulars may render the bid invalid.

Specific goals for this tender include: Black Women owned (4 points), Black Youth owned (4 points), Owned by people living in rural areas (4 points), EME or QSE 51% black owned (4 points), Owned by black persons with disabilities (4 points). Evidence required: certified ID documents, municipal/ESKOM bill or letter from Induna/Chief, certified B-BBEE certificate or sworn affidavit, doctor's note confirming disability.

The successful bidder will be required to fill in and sign a written contract form (SBD7). This bid is subject to the Preferential Procurement Policy Framework Act 2000, the Preferential Procurement Regulations 2022, the General Conditions of Contract (GCC), and any other applicable legislation or special conditions of contract.

Returnable documents:

• Form C (Tender Form): completed, signed, and dated, with the tender amount stated in words and figures; the amount in words prevails on discrepancy.
• A certified copy of the Resolution of the Board of Directors / Certificate of Partners, Members or Participants authorising the signatory.
• Completed pricing schedule (all rows filled; blank rows disqualify).
• Documentary proof of Workmen's Compensation, Securities and Insurance within 30 working days of award notification.
• Performance bond of 10% of the contract price (VAT inclusive) from a South African registered bank.

Disqualification risks:

• Any blank row in the pricing schedule.
• Failure to sign the tender form or annex the required resolution.
• Non-compliance with any material term of the RFP constitutes a material breach and grounds for cancellation.

The document does not state the evaluation methodology, preference point system, or minimum qualifying scores. Bidders must complete the pricing schedule in full; blank rows render the bid non-responsive. The tender is for a 36-month as-and-when-required contract.

Supply and delivery of small plant machinery for Metrorail Gauteng region on an as-and-when-required basis for 36 months. The pricing schedule lists the following items (each quantity 1):

• Petrol Driven Sleeper Tamper for railroad applications (Poinjar) with two additional beater points
• Portable Impact Wrench
• Wooden Sleeper Drill
• 400 Amp Invertor Welding machine
• 400 Amp Diesel powered Welding machine
• Lightweight Abrasive Rail Saw (Rail Disc cutter)
• Lightweight Rail Drilling Machine
• Rail Profile Grinder
• Rail Turn out Grinder
• Exothermic weld Rail Shearing Machine
• 13,5kVa Generator
• Industrial grade Chainsaw
• Industrial Grade Bush Cutter
• Industrial Grade Pole Pruner

The pricing schedule lists 14 items of small plant machinery, each with a quantity of 1. Bidders must provide prices for Year 1, Year 2, and Year 3, plus sub-total (VAT exclusive), VAT (15%), and grand total (VAT inclusive). All rows must be completed; blank rows lead to disqualification. The amount in words takes precedence over figures in case of discrepancy.

Pricing must be submitted on the provided pricing schedule, with rates for Year 1, Year 2, and Year 3, plus sub-total (VAT exclusive), VAT (15%), and grand total (VAT inclusive). All rows must be completed; pricing may be zero or an amount, but not blank. A blank row leads to disqualification. A performance bond of 10% of the contract price (VAT inclusive) is required, issued by a South African registered bank. Documentary proof of Workmen's Compensation, Securities and Insurance must be produced within 30 working days of award notification.

Bidders must provide a certified copy of the Resolution of the Board of Directors / Certificate of Partners, Members or Participants authorising the signatory. Documentary proof of Workmen's Compensation, Securities and Insurance coverage is required within 30 working days of award notification. A performance bond of 10% of the contract price (VAT inclusive) from a South African registered bank is required. No other compliance requirements (e.g., CSD, tax clearance, B-BBEE) are stated in the provided document.

Acceptance of the tender is subject to a written contract to be concluded between PRASA and the bidder. The bidder must produce documentary proof of Workmen's Compensation, Securities and Insurance within 30 working days of award notification, and sign a formal contract within 7 working days of notification that contract documents are ready. Failure to complete the works within the stipulated period may incur penalties under the Conventional Penalties Act. A performance bond of 10% of the contract price (VAT inclusive) is required. Non-compliance with any material term of the RFP constitutes a material breach and grounds for cancellation.

The tender is for the appointment of a service provider to supply and deliver small plant machinery in the Metrorail Gauteng region on an 'as and when required' basis for a period of thirty-six (36) months. The document provided is the RFP Clarification Form (Annexure 2), which is used for bidders to submit questions to PRASA.

Bidders must submit a completed RFP Clarification Form (Annexure 2) with their proposal. The form requires the company name, reference number, discipline, question, name, and date received, with a section for PRASA's answer. No other submission instructions are provided in this document.

Bidders must be registered on the Central Supplier Database (CSD) and hold a valid tax clearance certificate (SARS TCS or tax pin). Bidders must submit a completed SBD 4 (Declaration of Interest), SBD 6.1 (Preference Points Claim), SBD 8 (Declaration of Bidder's Past Supply Chain Management Practices), and SBD 9 (Certificate of Independent Bid Determination). An Authority to Sign or Board Resolution must be provided. Bidders must comply with the PPPFA preference point system (80/20 or 90/10) and any applicable local production and content requirements.

The scope is the supply and delivery of small plant machinery in the Metrorail Gauteng region on an 'as and when required' basis for a period of thirty-six (36) months. Specific machinery types, quantities, and delivery schedules are not detailed in this document.

The contract is a measurable (rates-based) contract. The contract price is inclusive of VAT. The works include the supply and delivery of uniform and personnel protective equipment (PPE). The contract includes standard conditions covering definitions, interpretation, general provisions, condition precedent (not applicable), priority of documents, duration, warranties, and other standard clauses.

Unable to extract eligibility criteria

Locality or place :

Date of acceptance :

Date of commencement :

Date of due completion :

APPROVED CONTRACT RATE : Inclusive of VAT. This is a measurable (rates-based) contract. All

payments will be made strictly in accordance with the approved rate

and actual quantities executed on site. The agreed rates are attached

hereto as Annexure

Conditions of contract

Table of contents

Page No.

1 definitions and interpretations ................................................................... 6

2 interpretations ................................................................................................... 9

3 acknowledgement ............................................................................................ 10

4 general provisions .......................................................................................... 10

5 condition precedent ........................................................................................ 11

6 priority of documents .................................................................................... 11

7 duration of contract ..................................................................................... 11

8 scope works........................................................................................................ 11

9 contractors warranties .............................................................................. 12

10 employer warranties ...................................................................................... 13

11 indemnities ............................................................................................................ 13

12 assignment and subcontracting ................................................................ 13

13 joint and several liability ............................................................................ 16

14 basis of contract ............................................................................................. 16

15 contractor's general obligations .......................................................... 17

16 change in control and BBBEE ...................................................................... 19

17 drawings ............................................................................................................... 20

18 heritage objects and resources ............................................................... 21

19 facilities for others ....................................................................................... 22

20 time and related matters .............................................................................. 24

21 supervision .......................................................................................................... 24

22 access to the site ............................................................................................. 25

23 time for practical completion .................................................................... 25

24 price, payment and related matters ........................................................ 31

25 temporary level crossing ............................................................................ 37

26 interference with employer's assets and work on open lines ..... 38

27 blasting and use of explosives .................................................................. 39

28 compliance with safety legislation and policies .............................. 39

29 protection of persons and property ...................................................... 41

30 quality and related matters ....................................................................... 41

31 risks and related matters ........................................................................... 45

32 force majeure .................................................................................................... 46

33 reporting accidents ........................................................................................ 48

34 insurances ........................................................................................................... 48

35 termination of contract ............................................................................... 52

36 dispute resolution ........................................................................................... 56

37 public relations and publicity .................................................................... 58

38 confidentiality ................................................................................................... 58

39 entire agreement .............................................................................................. 60

40 severability ......................................................................................................... 60

41 independent status .......................................................................................... 61

42 independent advice ........................................................................................... 61

43 counterparts ..................................................................................................... 62

Annexures

Annexure a: performance bond not applicable

Annexure b: scope of works

Annexure c: subcontractors

Annexure d: working hours and days

Annexure e: request for tender

Annexure f: occupational health and safety act : general

Administrative regulation

Annexure g: occupational health and safety act : general

Safety regulations 11(1)

Annexure h: occupational health and safety act :

GENERAL SAFETY REGULATIONS 13D (3)(b):

Annexure i: occupational health and safety act

Annexure j: safety on site

Annexure k: compliance with occupational health and safety act and regulations

Annexure l: general information

Annexure m: compliance with the compensation for occupational

Injuries and diseases act

Annexure n: contractual safety clauses

Annexure o: confirmation by contractor

Annexure p: specification e4e PRASA (2004)

Annexure q: specification for works on, over, under or adjacent to

Railway lines and near high voltage equipment E7/1

PRASA (2012)

1 definitions and interpretations

1.1 In the Contract (as hereinafter defined) the following words, definitions and expressions

shall have the meanings hereby assigned to them except where the context otherwise

requires:

1.1.1 “Agreed” means agreed between the Employer and the Contractor, unless

specifically stated otherwise;

1.1.2 “Applicable Laws” means the Constitution of the Republic of South Africa, Act

No., and all applicable statutes, regulations, codes of good practice,

sector codes, industry charters, ordinances, by-laws, rules (including rules of court)

and other secondary legislation, directives, practice notes having force of law in

South Africa and the common law arising out of judicial decisions, notifications and

with which the Parties are bound to comply;

1.1.3 “BBBEE” means Broad Based Black Economic Empowerment as defined in the

Broad Based Black Economic Empowerment Act No.;

1.1.4 “BBBEE Status” means the composition, ownership, make up, level and any other

criterion of measurement of BBBEE as indicated in the RFT;

1.1.5 “Bill of Quantities” means the bill of quantities submitted by the Contractor as part of

the Contractor’s Bid;

1.1.6 “Certificate of Completion” means the certificate issued by the Employer stating the

date on which Completion was achieved;

1.1.7 “Certificate of Practical Completion” means the certificate issued by the Employer

stating the date on which Practical Completion was achieved;

1.1.8 “Chief Executive Officer” means the chief executive officer of PRASA Technical a

division of PRASA;

1.1.9 “Commencement Date” means the Signature Date;

1.1.10 “Construction Equipment” means all equipment or things of whatsoever nature

required in or for the execution, completion or defects correction of the Works but

does not include materials, Plant or other things that are part of, or intended to form

part of the Permanent Works;

1.1.11 “Contract” means this contract agreement and Annexures thereto.

1.1.12 “Contractor” means

1.1.13 “Contractors Bid” means the documents submitted by the Contractor in response to

the RFT which is attached hereto as Annexure “E” to this Contract.

1.1.14 “Contract Price” means the Contract Sum subject to such addition thereto or

deduction there from as may be made from time to time under the provisions of the

Contract.

1.1.15 “Contract Sum” means the amount and the rates as set out in Clause 24.4 payable

by the Employer to the Contractor in terms of this Contract.

1.1.16 “Contract Period” means months being the period agreed between the Parties for

the Contractor to complete the works.

1.1.17 “Day” means a calendar day;

1.1.18 “Defects Liability Period” means the period during which the Contractor has both the

right and the obligation to make good defects in the materials, Plant and

workmanship covered by the Contract, which period commences upon the issue of

the Certificate(s) of Completion, as stated in clause 23.10.34, and shall terminate

12 (twelve) months thereafter;

1.1.19 “Due Completion Date” means the date of expiry of the time stated in the Scope of

Works in Annexure “B” for achieving Practical Completion of the Works, calculated

from the Commencement Date and as adjusted by such extensions of time or

acceleration as may be allowed in terms of the Contract;

1.1.20 “Employer” means Passenger Rail Agency of South Africa (PRASA) a public entity

established in terms of the Legal Succession to the South African Transport

Services Act and the legal successors in title thereto;

1.1.21 “Final Approval Certificate” means the certificate issued by the Project Manager

stating the date on which the Works were completed and all defects corrected in

accordance with the Contract;

1.1.22 “Group Chief Executive Officer” means the group chief executive officer of the

Employer;

1.1.23 “Mobilisation Fee” means an amount equal to 10% of the Contract Sum payable to

the Contractor, as an advance payment in accordance with clause 24.5 of this

Contract (Not applicable for this contract);

1.1.24 “National Heritage Resources Act” means the National Heritage Resources Act,

1999;

1.1.25 “Nominated Subcontractor” means a Subcontractor as defined in clause 12.3.1

1.1.26 “Occupational Health and Safety Act” means the Occupational Health and Safety

Act ;

1.1.27 “On-or Off Tracking Facility” means a place where the machine could be put on the

track or removed from the track. It will exclude an off-track platform constructed of

rails or other material that is used for the off tracking of tamping machines;

1.1.28 “Order” means any instruction, Order or directive.

1.1.29 “Permanent Works” means the Permanent Works to be constructed in accordance

with the Contract.

1.1.30 “Performance Bond” means an unconditional and on demand bank guarantee to the

value of 10% of the Contract Sum as indicated under Sub-Clause 24.8 ( Security)

issued by a South African Bank; (not applicable)

1.1.31 “Project” means The appointment of a service Provider for emergency procurement

of the Geotechnical Investigations and Rehabilitation work to the reoccurrence of

sinkholes sites in the Centurion 45 km area for a period of Twelve (12) months.

1.1.32 “Project Manager” means the person appointed by the Employer to be the Project

Manager for the Project.

1.1.33 “Plant” means machinery, apparatus, articles and things of all kind that become part

of the Permanent Works to be provided in accordance with the Contract;

1.1.34 “Practical Completion” means that the whole or portion of the Works has reached a

state of readiness, fit for the intended purpose, and occupation without danger or

undue inconvenience to the Employer, although some work may be outstanding;

1.1.35 “Restricted Enterprise” means an entity restricted from contracting with the

Employer or any other public entity as a result of being listed either on the register

for tender defaulters compiled in terms of the regulations to the Prevention and

Combating of Corrupt Activities Act 12, of 2004; or any other relevant Applicable

Law;

1.1.36 “Request for Tender (RFT)” means the request for tender issued by the Employer for

the appointment of a Contractor for the Project;

1.1.37 “Scope of Work” means the document that specifies and describes the Works which

are to be provided, and any other requirements and constraints relating to the

manner in which the work is to be carried out;

1.1.38 “Site” means the land and other places made available by the Employer, for the

purposes this Contract, on, under, over, in or through which the Works are to be

executed;

1.1.39 “Site Access Certificate” means the certificate, issued by the Employer's operation

division, which Site Access Certificate is a prerequisite to the Contractor being able

to proceed onto the Site, in order to effect the Works;

1.1.40 “Site Information” means the document that describes the Site as at the time of the

RFT to enable the respective bidders to submit proposals to the Employer in respect

of the Works;

1.1.41 “Signature Date” means the date of signature of this Contract by the last Party

signing;

1.1.42 “South Africa” means the Republic of South Africa;

1.1.43 “Subcontractors” means any person named in the Contract as a Subcontractor as

listed in Annexure “C” of this Contract and the legal successors in title to each of

these persons;

1.1.44 “SAHRA” means the South African Resources Agency established in terms of the

National Heritage Resources Act of 1994;

1.1.45 “Temporary Works” means the Temporary Works required for or in connection with

the execution of the Permanent Works and shall include items which are not

intended to be permanent or to form part of the Permanent Works;

1.1.46 “Working Hours” means the hours of work as stipulated in the project

specification/Scope of Work in Annexure “’B” and where no wage regulating

measures are in force, the hours will be 07h00 to 17h00 Mondays to Fridays,

excluding a daily meal break

1.1.47 “Works” means the Permanent Works together with such Temporary Works as may

be necessary for the execution of the Works; and

1.1.48 “Writing” means any hand-written, typed or printed communication (comprising

works, figures or drawings) including facsimiles, electronic communication or any

similar communication resulting in a permanent record. In writing” and “written” shall

have corresponding meanings.

2 interpretations

2.1 This Contract shall be interpreted according to the following provisions, unless the

context requires otherwise:

2.1.1 references to the provisions of any law shall include such provisions as amended, re-

enacted or consolidated from time to time in so far as such amendment, re-

enactment or consolidation applies, or is capable of applying, to any transaction

entered into under this Contract;

2.1.2 references to “Month” shall be to a calendar month;

2.1.3 references to “Parties” shall include the Parties’ respective successors-in-title and, if

permitted in this Contract, their respective cessionaries and assignees;

2.1.4 references to a “person” shall include an individual, firm, company, corporation,

juristic person, Responsible Authority, and any trust, organization, association or

partnership, whether or not having separate legal personality;

2.1.5 references to any “Responsible Authority” or any public or professional organization

shall include a reference to any of its successors or any organization or entity, which

takes over its functions or responsibilities;

2.1.6 references to “clauses”, “sub-clauses” and “Schedules” are references to the clauses,

sub-clauses and Annexures of this Contract;

2.1.7 the headings of clauses, sub-clauses and Schedules are included for convenience

only and shall not affect the interpretation of this Contract;

2.1.8 the Parties acknowledge that each of them has had the opportunity to take legal

advice concerning this Contract, and agree that no provision or word used in this

Contract shall be interpreted to the disadvantage of either Party because that Party

was responsible for or participated in the preparation or drafting of this Contract or

any part of it;

2.1.9 words importing the singular number shall include the plural and vice versa, and

words importing either gender or the neuter shall include both genders and the

neuter;

2.1.10 references to “this Contract” shall include this Contract as amended, varied, novated

or substituted in writing from time to time;

2.1.11 any reference to any enactment, Order, regulation or similar instrument shall be

construed as a reference to enactment, regulation or instrument as amended, re-

enacted or replaced from time to time;

2.1.12 when any number of days is prescribed in this Contract, same shall be reckoned

exclusively of the first and inclusively of the last day unless the last day falls on a

day which is not a Business Day in which case the last day shall be the immediately

following Business Day; and

2.2 The common or statute law shall determine whether any person acting or purporting to

act on behalf of the Employer, Project Manager or Contractor is duly authorised, save to

the extent that a party shall, by written notice to each of the others, designate a person

or the holder of any office, to the exclusion of another person or holder of office, to have

such authority, or to limit in any way, or terminate the authority of such designated

person or holder of office.

2.3 The marginal notes or headings in these General Conditions shall not be deemed to be

part thereof nor be taken into consideration in the interpretation or construction thereof,

or of the Contract.

3 acknowledgement

Although this Agreement has been developed specifically for the purposes of projects

undertaken by the Employer. Some of the clauses used in this Agreement were based on

the General Conditions of Contract for Construction Works (Second Edition 2010) and the

Fidic.

4 general provisions

4.1 No grant by the Employer or the Contractor to the other of any concession, waiver,

condonation or allowance shall, in respect of any specific event or circumstance other

than that in respect of which the grant was made, constitute a waiver of the rights of the

grantor in terms of the Contract or an estoppel of the grantor's right to enforce the

provisions of the Contract.

4.2 The law which is to apply to the Contract, and according to which the Contract is to be

interpreted, shall be the law of the Republic of South Africa.

4.3 The language of the Contract and of written communications shall be English.

4.4 In the event that the Contractor and the Employer conclude a supplementary contract,

the additional work executed in terms of such a contract shall not be taken to be a

variation or addition under Clause 24.9, but to be a separate contract. The value of such

additional work shall, for the purposes of Clause 24.10, not be taken into account for this

Contract, but it shall be taken into account for the separate contract concluded in terms

of the supplementary contract.

4.5 Except where otherwise provided in this Contract, the Contractor shall retain the

copyright and other intellectual property rights in documents supplied to the Employer or

Project Manager under this Contract.

4.6 The Contractor shall be deemed to have given the Employer a non-terminable,

non-transferable, non-exclusive, royalty-free licence to copy, use and communicate the

Contractor's documents, including making and using modifications of such documents

for the purposes of further work required to the Works.

5 condition precedent (not applicable)

5.1 The provisions of this Contract (other than clauses 1 to 4, 10, 11, 37 to 43 which will

come into effect from the Signature Date) are subject to the fulfilment of the condition

precedent within 30 (thirty) Business Days of the Signature Date (or such other date

agreed by the Parties in writing),namely;

5.2 The delivery by the Contractor to the Employer of a Performance Bond, which shall be

substantially the same as draft issued with the RFT; and

5.3 The obtaining of all necessary Construction Work Permits, issued in accordance with

South African law, including compliance with the Occupational Health and Safety Act,

1993 and the Construction Regulations,

5.4 The Parties shall, where it is within their respective power and control to do do, use their

respective reasonable commercial endeavours to procure the fulfilment of the condition

precedents, including compliance with all applicable South African laws and regulations

relating to construction work permits, within the time period permitted therefore in Clause

5.1

5.5 If the condition precedent is not fulfilled on or prior to the date stipulated in Clause 5.1 for

such fulfilment, including the obtaining of the Construction Work Permits in compliance

with South African law, this agreement shall not come into full force and effect and

neither Party shall have any claim against the other Party as a result of or in connection

with any such non-fulfilment (other than a claim for a breach by a Party of any of its

obligations under Clause 5.1

6 priority of documents

6.1 The documents forming the Contract are to be taken as mutually explanatory of one

another. For the purposes of interpretation, the priority of the documents shall be in

accordance with the following sequence:

6.1.1 the Contract; including Annexures and Schedules thereto;

6.1.2 the RFT; and

6.1.3 the Contractor’s Bid.

6.2 If an ambiguity or discrepancy is found in the documents, the agreement will take

precedence.

7 duration of contract

Subject to the provisions of clause 5 and any other clause in this Contract which entitles the

Contractor to an extension of time, this Contract shall be valid from Signature Date and

shall endure for Contract Period, where after it shall automatically terminate, provided that

the Employer may, on notice given to the Contractor not less than 3 (three) months prior to

the expiry date of the Contract Period, extend this Contract for a period to be determined by

the Employer, during which period the Employer may terminate this Contract on 30 (thirty)

days’ notice.

8 scope works

8.1 The Contractor shall undertake the Works in accordance with Good Industry Practice

and the detailed Scope of Works set in Annexure “B” and this Contract.

8.2 The Works to be undertaken by the Contractor shall include but not limited to the

following:

Supply and Delivery of uniform and personnel Protective Equipment (PPE)

9 contractors warranties

9.1 The Contractor warrants that as at the Signature Date:

9.1.1 it is a legal entity duly incorporated and validly existing under the Applicable Laws and

has taken all necessary actions to authorise its execution of and to fulfil its

obligations under this Contract;

9.1.2 no litigation, arbitration, investigation or administrative proceeding is in progress as at

the Signature Date or, to the knowledge of the Contractor as at the Signature Date,

threatened against it or the Subcontractors, which is likely to have a material

adverse effect on the ability of the Contractor to provide the Works;

9.1.3 the Contractor is not subject to any obligation or non-compliance which is likely to

have a material adverse effect on its ability to conduct the Works;

9.1.4 no proceedings or any other steps have been taken or, to the knowledge of the

Contractor, threatened for the winding-up or liquidation (whether voluntary or

involuntary, provisional or final), judicial management (whether provisional or final)

or deregistration of the Contractor, or under business rescue; or for the appointment

of a liquidator, judicial manager or similar officer over it or over any of its assets;

9.1.5 its obligations under this Contract are legal, valid, binding and enforceable against it

in accordance with the terms of this Contract;

9.1.6 all information disclosed by or on behalf of the Contractor at any time up to the

Signature Date and up to the end of the Contract Period and, in particular, when

submitting the quotation prior to the award of this Contract to the Contractor, is true,

complete and accurate in all material respects and the Contractor is not aware of

any material facts or circumstances not disclosed to Employer which would, if

disclosed, be likely to have an adverse effect on Employer’s decision (acting

reasonably) to award this Contract to the Contractor;

9.1.7 the execution and performance of this Contract by the Employers does not and will

not contravene any provision of its constitutive documents as at the Signature Date,

or any Order or other decision of any Responsible Authority or arbitrator that is

binding on the Contractor as at the Signature Date;

9.1.8 it has the necessary skill, expertise and capacity to deliver the Works required on the

terms set out in this Contract as read together with the RFT, and Contractor’s Bid,

including any sub-contractors whom it might appoint;

9.1.9 it will use reasonable care and skill in carrying out its obligations under this Contract;

9.1.10 it is not a Restricted Enterprise;

9.1.11 in being awarded its appointment under this Contract, it did not engage, either directly

or indirectly, or in any manner participate in the perpetration of a corrupt activity as

defined in terms of the Corrupt Activities Act Number ; and

9.1.12 it has all the insurances required in terms of this Contract.

10 employer warranties

10.1 The Employer hereby warrants that:

10.1.1 it has taken all necessary actions to authorise the execution and the fulfilment of its

obligations under this Contract; and

10.1.2 its obligations under this Contract are legal, valid, binding and enforceable against it,

in accordance with the terms of this Contract.

11 indemnities

11.1 The Contractor:

11.1.1 indemnifies the Employer against any liability in respect of damage to, or physical loss

of the property, or injury to or death of any person, and

11.1.2 shall be liable to the Employer for damage to or physical loss of all property of the

Employer on site arising directly from the execution of the Works;

11.2 The Contractor shall not be liable in respect of:

11.2.1 the permanent use or occupation of land by reason of the Works or any part thereof,

11.2.2 any nuisance, disturbance or interference arising necessarily by reason of the

construction of the Works,

11.2.3 interference, whether temporary or permanent, with any servitude or any other right

which is the unavoidable result of the construction of the Works in accordance with

the Contract, or

11.2.4 injuries or damage to persons or property resulting from any act, omission or neglect

of the Employer, his agents, employees or other contractors (not being employed by

the Contractor).

12 assignment and subcontracting

The Contractor shall not assign the Contract or any part thereof, or any obligation under the

Contract, or cede any right or benefit there under, without the written consent of the Chief

Procurement Officer and Group Chief Executive Officer of the Employer.

12.1 Subcontracting

12.1.1 The Contractor shall not subcontract the whole Contract and shall only subcontract a

portion of the Works subject to the written approval of the Employer.

12.1.2 The Contractor shall be liable for the acts, defaults and negligence of any

subcontractor, his agents or employees as fully as if they were the acts, defaults or

negligence of the Contractor.

12.1.3 The contractual relationship between the Contractor and any subcontractors selected

by the Contractor in consultation with the Employer in accordance with the

requirements of and a procedure set out in this Contract, shall be the same as if the

Contractor had appointed the subcontractor without consultation with the Employer.

12.1.4 Any appointment of a subcontractor in accordance with Clause 12.1.3 shall not

amount to a contract between the Employer and the subcontractor, or a

responsibility or liability on the part of the Employer to the subcontractor and shall

not relieve the Contractor from any liability or obligation under the Contract.

12.1.5 In the event of termination of the Contract under Clause 35.2, the Contractor shall

assign the subcontract it has in place with a subcontractor to the Employer, upon

instruction by the Employer.

12.2 Appointment of Subcontractors

12.2.1.1 Subject to clause 12.1.1, the Employer hereby consents to the Contractor

subcontracting portions of the Works to the Subcontractors. In the event that the

Contractor wishes to appoint additional subcontractors or replace any one of the

subcontractors, it shall:

12.2.1.2 consult with the Employer regarding such proposed subcontractor, including

providing details as to such subcontractor’s experience, financial standing and

empowerment credentials;

12.2.1.3 obtain the Employer’s written consent prior to contracting with any proposed

subcontractor, which consent shall not be unreasonably withheld; and

12.2.1.4 in respect of the replacement of a Subcontractor procure that the terms and

conditions upon which any replacement subcontractor is appointed are

substantially the same as those on which the Subcontractor was appointed and

provide the Employer with a copy of the duly executed contract with any such

proposed subcontractor.

12.2.2 Every Sub-contractor shall enter into a sub-contracting agreement with the Contractor

which shall provide that -

12.2.2.1 such Sub-contractor shall undertake the same obligations to the Contractor in

respect of the sub-contract as those by which the Contractor is bound in respect of

the contract;

12.2.2.2 payment for work covered by the sub-contract shall not be due until receipt by the

Contractor of the payment certificate which includes the value of such work;

12.2.2.3 within 7 (seven) days of receipt by the Contractor of the Project Manager's

payment certificate in which the value of such sub-contractor's work is included,

the Contractor shall make payment in full to the sub-contractor for work covered by

the sub-contract without discount or deduction, other than retention money as may

be specified in the sub-contract.

12.3 Nominated Subcontractor

12.3.1 In this clause 12.3, "Nominated Subcontractor" means a Subcontractor whom the

Employers acting through the Project Manager instructs the Contractor to employ as

a Subcontractor. The Contractor shall not be under any obligation to employ a

Nominated Subcontractor against whom the Contractor raises reasonable objection

by notice to the Project Manager as soon as practicable, with supporting particulars.

In the event of the Employer not being satisfied with the Contractor’s objection, the

Employer acting through the Project Manager shall instruct the Contractor to employ

the Nominated Contractor.

12.3.2 The supply and fixing of any material or the execution of work for which a provisional

sum is included in the bills of quantities/schedule of quantities/schedule of prices

and/or specifications, shall be undertaken by a Nominated Subcontractor or other

contractor nominated in writing by the Employer. Notwithstanding that a

subcontractor is a Nominated Subcontractor, a such subcontractor shall, for all

intents and purposes, be regarded as being employed by the Contractor as a

sub-contractor.

12.3.3 Every Nominated Sub-contractor shall enter into a sub-contracting agreement with

the Contractor which shall provide that -

12.3.3.1 such Nominated Sub-contractor shall undertake the same obligations to the

Contractor in respect of the sub-contract as those by which the Contractor is

bound in respect of the contract;

12.3.3.2 payment for work covered by the sub-contract shall not be due until receipt by the

Contractor of the payment certificate which includes the value of such work;

12.3.3.3 within 7 (seven) days of receipt by the Contractor of the Project Manager's

payment certificate in which the value of such sub-contractor's work is included,

the Contractor shall make payment in full to the sub-contractor for work covered by

the sub-contract without discount or deduction, other than retention money as may

be specified in the sub-contract.

12.3.4 Before issuing any payment certificate, the Project Manager may call upon the

Contractor to furnish satisfactory proof that any Nominated Sub-contractor's

account included in any previous payment certificate has been duly met, failing

which the Employer may pay the account against a certificate of the Project

Manager and may deduct the amount thereof from any sum due to the Contractor.

12.3.5 Should the Employer wish to make payment directly to any Nominated

Sub-contractor in respect of work covered by the sub-contract, it will be entitled to

do so. The sum payable to the Contractor in terms of any payment certificate in

favour of the Contractor, which includes the value of any Nominated

Sub-contractor's work, shall thereupon be reduced by the amount directly paid or

payable by Employer to any Nominated Sub-contractor, and the Contractor's

obligation under clause 12.3.3.3 hereof shall be deemed to have been discharged in

so far as such direct payment is concerned.

12.3.6 Should the Employer wish to effect final payment to any Nominated Sub-contractor

before the final payment is due to the Contractor, the Engineer may include in a

payment certificate in favour of the Contractor, an amount to cover the final payment

to the sub-contractor, which amount shall thereupon be paid to the Nominated

sub-contractor by the Contractor.

12.3.7 At the settlement of accounts, any amount paid or payable by the Contractor and/or

Employer to a Nominated Sub-contractor shall be set against the appropriate

provisional sum and the balance, after allowing pro rata for the Contractor's costs as

shown in the bills of quantities/schedule of quantities/-schedule of prices, will be

added to or deducted from the contract amount.

12.3.8 The exercise by Employer of the right to nominate a sub-contractor shall not render

Employer in any way liable to any such Nominated Sub-contractor.

13 joint and several liability

13.1 If the Contractor constitutes (under Applicable Laws) a joint venture, consortium or other

unincorporated grouping of two or more persons:

13.1.1 these persons shall be deemed to be jointly and severally liable to the Employer for

the performance of the Works;

13.1.2 these persons shall notify the Employer of their leader who shall have authority to

bind the Contractor and each of these persons; and

13.1.3 the Contractor shall not alter its composition or legal status without the prior consent

of the Employer.

14 basis of contract

14.1 Available data and information

14.1.1 The Employer shall have made available to the Contractor, as part of or available

data by reference in the Site Information, data relevant to the Works obtained by or

on behalf of the Employer, but the Contractor shall be responsible for his own

interpretation thereof and deductions thereof.

14.1.2 The Contractor shall be deemed to have inspected the Site and its surroundings and

to have studied all available information pertaining the Site before submitting the

Contractors Bid. The Contractor shall thus be deemed knowledgeable in respect of:

14.1.2.1 the form and nature of the Site and its surroundings;

14.1.2.2 environmental, hydrological and climatic conditions;

14.1.2.3 The extent and nature of the work and materials required for execution and

completion of the Works;

14.1.2.4 the means of access to the Site for purposes of undertaking the Works; and

14.1.2.5 the design of the Works and Site conditions insofar as they affect the execution of

the Works with regard to health, safety and the environment.

14.1.3 The Contractor shall, in general, be deemed to have obtained attainable information

on risks, contingencies and all other information circumstances which may influence

or affect the Works.

14.2 Adverse physical conditions

14.2.1 If, during the execution of the Works, the Contractor shall encounter adverse physical

conditions (other than weather conditions at the Site or the direct consequences of

those particular weather conditions) or any other conditions or obstructions, which

conditions or obstructions could not have been reasonably foreseen by an

experienced contractor at the time of submitting the Contractor’s Bid, and the

Contractor is of the opinion that additional work will be necessary, which would not

have been necessary had the particular physical conditions or obstructions not been

encountered, he shall give notice to the Project Manager in writing as soon as he

becomes aware of the conditions or obstructions, stating:

14.2.1.1 the nature and extent of the physical conditions and artificial obstructions

encountered, and

14.2.1.2 the additional work required by reason thereof.

14.2.2 The Contractor shall, if authorised by the Project Manager, carry out the additional

work proposed in the notice under Clause 14.2.1, without limiting the right of the

Project Manager to Order a suspension of work in terms of Clause 23.7 or a

variation in terms of Clause 24.9.

14.2.3 If the Contractor has duly given the notice referred to in clause 14.2.1 he shall be

entitled to claim an extension of time due to the delay to Practical Completion.

15 contractor's general obligations

15.1 Extent of obligations and liability

15.1.1 The Contractor's general obligations under the Contract shall include the upgrading,

modernisation and construction of the Works in accordance with Good Industry

Practice and unless otherwise stipulated, the provision at its own expense of all

labour, equipment, tools, material, transport, consumables, stores, services,

samples and Temporary Works, and everything, whether of a temporary or

permanent nature, required in and for the construction, completion and commission

of the Works. The Contractor shall remedy any defects in the Works and the

completed Works must be fit for the purpose for which the Works are intended as

defined in the RFT and this Contract.

15.1.2 The Works shall include any work which is necessary to satisfy the Contract, RFT,

Contractor’s Bid, and any and all Works which (although not mentioned in the

Contract) is necessary for stability or for the completion, or safe and proper

operation, of the Works.

15.1.3 The Contractor shall be responsible for the adequacy, stability and safety of all Site

operations, of all methods of construction and of all the Works.

15.2 Legal provisions

15.2.1 The Contractor shall, in fulfilling the Contract, comply with Applicable Laws and

contracts, and at the request of the Project Manager, shall provide proof that he has

complied with all such Applicable Laws and Contracts.

15.2.2 If required, the Contractor shall provide proof to the Project Manager that it is in good

standing with respect to duties, taxes, levies and standing contributions required in

terms of the Applicable Laws.

15.3 Notices and Fees

15.3.1 The Contractor:

15.3.1.1 shall in the execution of the Works comply with the provisions of, and give all

notices and pay all fees, taxes, levies and other charges required to be given or

paid in terms of:

15.3.1.2 applicable Law, and

15.3.1.3 the conditions imposed by any other body or person stated in this Contract.

15.3.2 The Contractor indemnifies the Employer against any liability for any breach of the

provisions of Clause 15.3.1.1

15.3.3 The Employer shall be responsible for obtaining any planning approval required in

respect of the Permanent Works and the Temporary Works, which is specified or

designed by the Project Manager.

15.3.4 The Contractor shall be responsible for obtaining all requisite consents and permits

for the execution of the Works arising from the approvals consents referred to in

Clause 15.3.3.

15.3.5 All notices and any other communications whatsoever (including, without limitation,

any approval, consent, demand, query or request) by either Party in terms of this

Contract or relating to it shall be given in writing and sent by registered post, or

delivered by hand, or transmitted by facsimile, e-mail to the recipient Party at its

relevant address set out below:

15.3.5.1 if to the Employer at:

Address: PRASA Umjantshi House

30 Wolmarans Street

Braamfontein, 2017

Attention: Head of the Legal Department- Legal Matters/Notices

Project Manager- Operational Matters/Notices

Postal address: Private Bag X101

Braamfontein

2017

Legal:

Facsimile number: +27 11 013 1600

Telephone: +27 11 774 6001

Project Manager: Leepo Sebolai

Telephone: 083 386 8012

Email: [email protected]

15.3.5.2 if to the Contractor:

Address:

Postal address:

Facsimile number: N/A

Telephone number:

E-mail address:

15.3.6 Either Party may, by written notice to the other Party, change any of the addresses at

which notices or communications or the designated person for whose attention

those notices are to be given or other communications are to be delivered.

15.3.7 Any notice or other communication given by any Party to the other Party which:

15.3.7.1 is sent by registered post to the addressee at its specified address shall be

rebuttably presumed to have been received by the addressee on the 7th (seventh)

day after the date of posting; or

15.3.7.2 is delivered by hand to the addressee during the normal business hours of the

addressee at its specified address shall be refutably presumed to have been

received by the addressee at the time of delivery; or

15.3.7.3 is transmitted by facsimile to the addressee during the normal business hours of

the addressee at its specified facsimile number shall be rebuttably presumed to

have been received by the addressee on the date of transmission as indicated on

the sender’s facsimile transmission report.

15.3.8 The previous provisions of this clause 15.3 shall not invalidate any notice or other

communication actually given and received otherwise than as described in those

provisions.

15.3.9 The Parties choose their respective physical addresses in clause 15.3.5 as their

respective domicilia citandi et executandi at which all documents relating to any

legal proceedings to which they are a party may be served. If that address is

changed to another address which is not a physical address in South Africa, then

the original address shall remain the domicilium citandi et executandi of the relevant

Party until it nominates a new physical address within the Republic of South Africa in

writing to be its new domicilium citandi et executandi.

16 change in control and BBBEE

16.1 The Contractor shall not, during the term of this Contract, be allowed to proceed with any

of the following matters without the prior written consent from the Employer’s Chief

Procurement Officer and Group Chief Executive Officer:

16.1.1 any transfer of any amount of shares of the Contractor;

16.1.2 any change in the composition of the Contractor;

16.1.3 any change in the ownership of the Contractor;

16.1.4 any material change in the constitution, memorandum, articles of association or

memorandum of incorporation or similar document providing for the creation,

formation or incorporation of the Contractor; or

16.1.5 any change on the BBBEE component of the Contractor.

16.2 provided that the Contractor shall not require any approval and/or consent of the

Employer and/or Employer’s Chief Procurement Officer and Group Chief Executive

Officer where any change, as contemplated in clause 16.1.1 to 16.1.5, do not have an

impact on the BBBEE Status of the Contractor.

16.3 Any breach of this clause 16 by the Contractor shall result in immediate termination by

the Employer

17 drawings

17.1 The drawings will remain in the sole custody of the Project Manager. Three copies

thereof will be furnished to the Contractor free of cost, but any further copies shall be

paid for by the Contractor. The Contractor shall give reasonable notice in writing to the

Project Manager of any further drawing or specification that may be required for the

execution of the Works.

17.2 One copy of the drawings furnished to the Contractor as aforesaid shall be kept by the

Contractor on the site, and shall at all reasonable times be available for inspection and

use by the Project Manager.

17.3 Where the design of the Works or part of the Works is done by the Contractor, he shall,

unless otherwise directed, submit paper prints, in triplicate, of all plans or drawings of

such Works to the Project Manager whose written approval must be obtained before the

work concerned is commenced. Such approval shall be subject to clause 17.2 hereof.

17.4 Design, plans and drawings done by the Contractor in accordance with clause 17.3 and

paid for by the Employer, including the intellectual rights thereto, shall belong to the

Employer.

17.5 In the event that the designs, drawings and/or plans are done by both Employer and

Contractor, the intellectual property rights attaching to the work done and paid for by

Employer shall vest on the Employer

17.6 Scaled dimensions are not to be used, and where no figure dimensions are given on the

drawings or in the Bill of Quantities or any specifications, the Project Manager is to be

requested in writing for an instruction regarding the correct dimensions.

17.7 The Contractor shall, in accordance with the Project Manager's written instructions,

maintain a register on site of all drawings and revisions thereof in the chronological order

in which they are delivered to him or approved in terms of clause 17.3 hereof.

17.8 The Contractor shall timeously and carefully examine the drawings and shall

immediately notify the Project Manager in writing of any error, inaccuracy, discrepancy or

inconsistency detected by him, or raise an objection thereto in Order that it may be

rectified or decided upon without disruption or delays to the progress of the Work.

17.9 The Contractor hereby grants to the Employer a non-exclusive licence, in accordance

with the provisions of section 22 of the Copyright Act, No. -

17.9.1 to copy any plan, diagram, drawing, specification, bill of quantities, design calculation

or other similar document made by the Contractor, other than under the direction or

control of the Employer, in connection with the Works;

17.9.2 to make free and unrestricted use thereof for its own purposes;

17.9.3 to provide copies thereof to Project Managers to be used by them for consultations

and consulting services to the Employer;

17.9.4 to provide other parties with copies thereof where tenders are invited by the

Employer.

17.10 Such non-exclusive licence shall apply mutatis mutandis to any plan, diagram, drawing,

specification, Bill of Quantities, design calculation or other similar document made, other

than under the direction or control of the Employer, by any Subcontractor of the

Contractor. The provisions of this clause shall in the case of materials, machines or

equipment to be provided as part of the Works, not apply in respect of documents

created for the manufacturing thereof.

17.11 No separate or extra payment shall be made by the Employer in respect of any non-

exclusive licence granted in terms hereof.

17.12 Save in respect of the Employer's or the Employer’s Project Manager's design of the

Works or method of construction and proprietary brand specified by the Employer or its

Project Manager, the Contractor indemnifies the Employer against any liability arising

from the infringement of any patent rights, design, trade-mark or name or other protected

right in respect of any design work, Construction Equipment, Plant, machine, work,

method of construction or material used for or in connection with the Works.

17.13 Except where otherwise specified in the Contract, the Contractor shall pay all amounts

due by him in respect of the rights referred to in Clause 17.

18 heritage objects and resources

18.1 Fossils

18.2 All fossils, coins, articles of value or antiquity and structures and other remains or things

of geological or archaeological interest discovered on the Site shall, as between the

Employer and the Contractor, be deemed to be the absolute property of the Employer.

18.3 Discovery

18.3.1 Upon the discovery of any heritage object or resource (as defined in the National

Heritage Resources Act, No. as amended, or any corresponding

provincial legislation) during the course of the Works and SAHRA failing to issue any

consent received in terms of the National Heritage Resources Act, No. as

amended, within the time period stipulated in the Schedule of Works, the Contractor

shall:

18.3.1.1 promptly notify the Employer of such discovery or delay;

18.3.1.2 take all necessary steps not to disturb the heritage object or resource, including

ceasing any Works to the extent that the carrying out of such Works might

reasonably endanger the heritage object or resource or prevent or impede its

excavation or preservation; and

18.3.1.3 take all necessary steps to preserve the heritage object or resource in the same

position and condition in which it was discovered.

18.4 Action

18.4.1 The Project Manager acting on instructions of the Employer shall promptly and in any

event within 7 (seven) Business Days of the notice in clause 18.3.1.1 issue an

instruction to the Contractor specifying what action the Employer requires the

Contractor to take in relation to such discovery or delay.

18.4.2 The Contractor shall promptly and diligently comply with any lawful instruction so

issued (save to the extent that such instruction constitutes a proposal by the Project

Manager acting on instructions of the Employer for a variation as provided in

clause 18.4.4 below, in which case the variation procedure provided for in

clause 24.9 (Variations) shall apply) at its own cost.

18.4.3 If so directed by the responsible authority, the Contractor shall allow representatives

of the responsible authority to enter into the Site for the purposes of removal or

disposal of such discovery; provided that such entry shall be subject to the

responsible authority complying with all relevant safety procedures which shall

include any relevant health and safety plans for the construction of the Works and

any reasonable directions regarding the safety of the Site that may be issued by or

on behalf of the Contractor.

18.4.4 If the discovery constitutes a contractors claim in accordance with clause 35.4, and

any instruction from the Project Manager acting on instructions of the Employer in

connection with the discovery includes the requirement for the Contractor to carry

out Works (being any work of alteration, addition, demolition or extension or

variation in the Works or Facilities) which are not Works that would be necessary for

the purpose of compliance with any Law or any Consents, then such Works shall be

deemed to be a variation and the provisions of clause 24.9 (Variations) shall apply.

19 facilities for others

19.1 The Contractor shall, in accordance with the Contract afford on the Site all reasonable

opportunities for carrying out their work to:

19.1.1 the Employer,

19.1.2 any other contractors employed and other persons authorised by the Employer, and

19.1.3 any local or other statutory authorities,

19.2 who may be engaged in the execution on the Site of any work not included in the

Contract, provided that adequate notice of the necessity thereof is given to the

Contractor.

19.3 Pursuant to Clause 19.1 the Contractor shall, on the written instruction by the Project

Manager:

19.3.1 make available to the Employer, or to any such contractor or any such authority, any

roads or ways for the maintenance of which the Contractor is responsible, or

19.3.2 provide any other facility or service of whatsoever nature to any of the said persons or

authorities.

19.4 The Contractor shall, unless otherwise provided in the Contract, be entitled to make a

claim in accordance with Clause 35.4 for the delay to Practical Completion.

19.5 Construction Equipment

All Construction Equipment provided by the Contractor shall, when brought onto the Site,

be deemed to be exclusively intended for the execution of the Works and the Contractor

shall not remove the same from the Site without the written consent of the Project

Manager, which consent shall not be unreasonably withheld. On delivery to the Site of

such Construction Equipment the Contractor shall notify the Project Manager, in writing,

of the name and address of the owner of any such Construction Equipment not owned

by the Contractor.

19.6 Contractor's employees

19.6.1 The Contractor shall be responsible for, or make suitable arrangements for the

payment, housing and feeding whilst on site and transport to and from the Site in

accordance with Good Industry Practice(provided that any use of any part of the Site

for the said purposes shall be subject to the prior approval of the Project Manager)

of its employees and indemnifies the Employer against any liability arising out of the

Contractor's said arrangements, whether such arrangements involve the use of the

Site or not.

19.6.2 The Contractor shall, if instructed by the Project Manager, deliver to the Project

Manager information, in such form and at such intervals as the Project Manager

may prescribe, in respect of employees employed by the Contractor on the Site from

time to time.

19.7 Competent employees

19.7.1 The Contractor shall employ on the Site, for the execution and competent completion

of the Works, persons that are careful, competent and efficient in their various

trades and professions.

19.7.2 The Project Manager shall be entitled to instruct the Contractor to remove forthwith

from the Works any person employed by the Contractor in or about the execution of

the Works if, in the opinion of the Project Manager, such person is incompetent or

negligent in the performance of his duties, or whose presence on the Site is

undesirable, and such person shall not again be employed on the Works without the

permission of the Project Manager.

19.8 Contractor's superintendence

19.8.1 The Contractor shall provide all necessary superintendence during the execution of

the Works.

19.8.2 The Contractor or a competent and authorised agent or representative approved in

writing by the Project Manager (which approval may at any time be withdrawn in

writing), hereinafter called the Contractor's Site Agent, shall be on the Site at all

times when work is being performed or when the Project Manager shall, with

reason, require his presence.

19.8.3 The Contractor's Site Agent shall have authority to receive, on behalf of the

Contractor, all oral or written communications from the Project Manager or the

Project Manager's Representative.

20 time and related matters

20.1 Commencement of the Contract

The Contract shall commence on the Signature date.

20.2 Commencement of the Works

20.2.1 Upon the Project Manager's instruction the Contractor shall, save as may be

otherwise provided in the Contract or legally or physically impossible, commence

executing the Works. Such instruction shall be subject to the submission by the

Contractor, and approval by the Project Manager, of documentation required before

commencement with Works execution which information shall be as follows:

20.2.1.1 Project Plan;

20.2.1.2 Any Consents required;

20.2.1.3 Proof of insurance;

20.2.1.4 The documentation referred to in Clause 20.2.1 above shall be made available

within 30 (thirty) days from the Commencement Date.

20.2.1.5 If the documentation referred to in Clause 20.2.1 is not submitted within the

number of days stipulated in Clause 20.2.1.4 from the Commencement Date, or is

found to be unacceptable, the Employer may terminate the Contract in terms of

Clause 35.2.

20.2.1.6 If the Project Manager's instruction to commence executing the Works, or to

resubmit documentation, is not received by the Contractor within 7 (seven) days

from the actual date of submission of the documentation referred to in 20.2.1,

commencement of the Works shall be deemed to be on the expiry of such 7

(seven) days.

21 supervision

21.1 The function of the Project Manager is to control, manage and administer the Contract

acting on instructions of the Employer, in accordance with the provisions of the Contract

and the contract between the Project Manager and the Employer. The function of

the Project Manager is to control, manage and administer the Contract acting on

instructions of the Employer, in accordance with the provisions of the Contract and the

contract between the Project Manager and the Employer.

21.2 Whenever the Project Manager intends, in terms of the Contract, to exercise any

discretion or make or issue any ruling, contract interpretation or price determination, he

shall first consult with the Contractor and the Employer in an attempt to reach

agreement. Failing agreement, the Project Manager shall act impartially and make a

decision in accordance with this Contract, taking into account all relevant facts and

circumstances.

21.3 The Project Manager shall obtain all approvals required form the Employer.

21.4 The Project Manager will provide overall technical superintendence of the Works, and

may direct the Contractor in terms of the provisions of this Contract or in respect of any

measures which the Project Manager may require for the operations of the Employer on

the safety of trains, the property and workmen of the Employer, and for the safety of

other property and persons. The Contractor shall carry out the directions of the Project

Manager. The superintendence exercised by the Project Manager, including any

agreement, approval, refusal or withdrawal of any approval given, shall not relieve the

Contractor of any of his duties and liabilities under the Contract, and shall not imply any

assumption by the Employer or by the Project Manager of the legal and other

responsibilities of the Contractor in carrying out the Works.

21.5 The Project Manager may in terms of the delegation of authority sub-delegate to any

person as its representative (“the Project Manager’s Representative”), any of his duties

or functions under the Contract. On receiving notice in writing of such delegation, the

Contractor shall recognise and obey the Project Manager’s Representative or person to

whom any such duties or functions have been delegated as if he were the Project

Manager.

21.6 The Contractor shall exercise supervision over the Works at all times when work is

performed or shall be represented by an agent having full power and authority to act on

behalf of the Contractor. Such agent shall be competent and responsible and have

adequate experience in carrying out work of a similar nature to the Works, and shall

exercise personal supervision on behalf of the Contractor. The Project Manager shall be

notified in writing of such appointment which will be subject to his approval.

21.7 The Contractor or the Contractor’s Site Agent shall always be available on the Site while

the Works are in progress to receive the Orders and directions of the Project Manager.

21.8 If the Contractor is dissatisfied with any Order or instruction of the Project Manager's

representative, or any other person appointed by the Project Manager to act on his

behalf, he shall be entitled to refer the matter to the Project Manager who shall promptly

confirm, reverse or vary such Order or instruction.

22 access to the site

22.1 The Employer shall, upon confirmation from the Project Manager that the Contractor is

ready to commence the Works referred to in Clause 20.2.1, as well as subject to the

Contractor having been issued with a Site Access Certificate, give to the Contractor

possession of right of access to the Site (including physical access to the extent

stipulated in the Site Information) and possession of the whole of the Site, subject to any

provision to grant the Contractor possession of the Site in portions and/or any

requirements as to the Order in which the Works shall be executed, all as stipulated in

the Site Information.

23 time for practical completion

23.1 The whole of the Works shall be completed within the Due Completion Date.

23.2 Programme

23.2.1 The Contractor shall deliver to the Project Manager as part of the documentation

required before commencement with Works execution in accordance with

Clause 20.2.1, an initial programme of carrying out the Works (hereafter known as

the “Project Plan”) in Order to meet the Due Completion Date. Whenever the

approved Project Plan no longer reflects that actual progress will meet the Due

Completion Date, the Contractor shall deliver to the Project Manager an revised

Project Plan.

23.2.2 The initial Project Plan and all subsequent revised Project Plan shall show and, when

relevant, describe in statements, the entire scope of the work to be performed

including but not limited to:

23.2.2.1 the Commencement Date, commencement of the Works;

23.2.2.2 the Completion Due Date, and the planned completion date;

23.2.2.3 the sequence, timing and resources for carrying out the Works;

23.2.2.4 the dates for Site accesses and possessions, approvals, instructions, inspections,

tests and all information required to execute the Works;

23.2.2.5 The events influencing the execution of the Works;

23.2.2.6 other programming information set out in the Scope of Work; and

23.2.2.7 on revised Project Plan, the actual progress achieved for the various parts of the

Works and the amounts paid.

23.2.3 In the event that the Contractor is not able to complete the Works in line with the Project

Plan the Contractor shall submit the revised Project Plan to the Project Manager for

approval indicating the changes to the initial Project Plan.

23.2.4 The Project Manager shall, within 7 (seven) Business Days after the Contractor has

submitted revised Project Plan, approve such Project Plan or, giving his reasons,

instruct the Contractor to amend it, failing which, the submitted Project Plan shall be

deemed to be the approved Project Plan.

23.2.5 The submission to and approval by the Project Manager of such Project Plan or its

revised Project Plan, or the delivery of any relevant particulars, shall not relieve the

Contractor of any of his duties or responsibilities under the Contractor's Contract.

23.3 Progress of the Works

23.3.1 The Project Manager may if, at any time the rate of progress of the Works or rate of

any part thereof that has fallen behind the approved Project Plan, making his own

assessment, he shall so notify the Contractor in writing, with specific reference to

this Clause 23.3.1. The Contractor shall thereupon, subject to the approval of the

Project Manager, which approval shall not be unreasonably withheld, take the

necessary steps to expedite progress so as to complete the Works, or the part

thereof, by the Due Completion Date. The Project Manager may instruct the

Contractor to submit an adjusted programme to accommodate the steps agreed

upon between them to meet the Due Completion Date.

23.3.2 No instruction by the Project Manager to the Contractor to improve his rate of

progress in this regard will qualify for additional compensation.

23.3.3 In respect of any action arising from Clause 23.3.1, if the work is not being carried out

by day and by night and the Contractor requests permission to work by night as well

as by day then, if the Project Manager grants permission, the Contractor shall not be

entitled to any additional payment for night work and all such work shall be carried

out without excessive noise and disturbance.

23.3.4 In such an event the Contractor shall pay the additional attendance costs incurred by

the Project Manager or the Employer in acceding to the Contractor's request.

23.3.5 The Contractor indemnifies the Employer against any liability resulting from noise or

other disturbance created if the work is carried out at night.

23.3.6 The Project Manager may request the Contractor to submit, or the Contractor may

submit to the Project Manager, a revised programme for accelerating the rate of

progress to achieve Practical Completion before the Due Completion Date, if

accepted by the Employer, the Due Completion Date shall be adjusted accordingly

and shall be agreed in writing by the Project Manager.

23.4 Non-working times

23.4.1 Working Hours

23.4.1.1 No work shall be carried out on the Site on locally recognised days of rest, or

outside the normal working hours stated in Annexure “D” [Working Hours and

Days], unless:

23.4.1.2 otherwise stated in the Contract;

23.4.1.3 the Project Manager acting on instructions of the Employer gives consent, or

23.4.1.4 the work is unavoidable, or necessary for the protection of life; or property or for

the safety of the Works, in which case the Contractor shall immediately advise the

Project Manager.

23.5 Instructions

23.5.1 On the Commencement Date, the Project Manager shall deliver to the Contractor

copies of the drawings and any instructions required for the commencement of the

Works.

23.5.2 The Project Manager shall deliver to the Contractor from time to time, during the

progress of the Works, drawings for construction purposes or instructions as shall

be necessary for the proper and adequate construction, completion and defect

correction of the Works.

23.5.3 The Contractor shall give adequate written notice to the Project Manager of any

requirements additional to that contained in the Scope of Work or specifications or

drawings, which the Contractor may require for the execution of the Works and the

Project Manager shall deliver such instructions and/or specifications and/or

drawings to the Contractor.

23.5.4 The aforesaid instructions and/or specification and/or drawings referred to in

Clause 23.5.3 shall be delivered in good time taking the approved programme into

account.

23.5.5 The Contractor shall give effect to and be bound by any specifications or drawing or

instruction given in terms of this Clause and, if such specification or drawing or

instruction shall require any variation of, addition to, or omission from the Works,

Clause 24.9 shall apply.

23.5.6 If by reason of a failure by the Project Manager, after his receipt of written notice from

the Contractor in terms of Clause 23.5.3, to comply in good time with the provisions

of Clause 23.5.4, the Contractor suffers delay to Practical Completion and, he shall

be entitled to make a claim for additional time in accordance with Clause 35.4, for

which purpose the time limit of 28 (twenty eight) days shall commence after the

Contractor became aware (or should have become aware) of the event or

circumstance giving rise to the claim, or within such other period as may be

proposed by the Contractor and approved by the Project Manager, the Contractor

shall send to the Project Manager a fully detailed claim which includes full

supporting particulars of the basis of the clam and of the extension of time and/or

additional payment claimed.

23.6 Delays attributable to the Employer

If the Contractor suffers delay to Practical Completion from failure or delay on the part of

the Employer, his agents, employees or other contractors (not employed by the

Contractor) in fulfilling any necessary obligations in Order to enable the Works to

proceed in accordance with the Contract, the Contractor shall be entitled to make a claim

in accordance with Clause 35.4. The Contractor shall make such claim within 28 (twenty

eight) days of such failure by the Employer to meet its contractual obligation. The

Contractors claim shall be submitted to the Project Manager stating in detail such failure

by the Employer.

23.7 Suspension of the Works

23.7.1 The Contractor shall, on the written Order of the Project Manager stating the cause

for suspension(other than force majeure), suspend the progress of the Works or any

part thereof for such time or times and in such manner as the Project Manager shall

Order and shall, during such suspension, properly protect the Works as far as is

necessary unless such suspension is by reason of some default or breach of the

Contract by the Contractor, the Contractor shall in respect of delay to Practical

Completion be entitled to make a claim in accordance with Clause 35.4 for

additional time in Order to reach Practical Completion.

23.7.2 If the progress of the Works or any part thereof is so suspended for more than

84 (eighty-four) days in total, the Contractor may deliver a written notice to the.

Project Manager requiring permission to proceed with the Works or that part thereof

in respect of which progress is suspended.

23.7.3 If such permission is not granted within 28 (twenty eight) days after the Project

Manager's receipt of the written notice, the Contractor may, by a further written

notice to the Employer, elect to treat the suspension, where it affects the whole

Works, as a repudiation of the Contract by the Employer, in which case

Clause 35.3 shall apply.

23.8 Extension of time for Practical Completion

23.8.1 If the Contractor considers himself entitled to an extension of time for circumstances

of any kind whatsoever which may occur that will, in fact, delay Practical Completion

of the Works, the Contractor shall claim in accordance with Clause 35.4 for

extension of time. Such extension of time shall take into account any special non-

working days and all relevant circumstances, including concurrent delays or savings

of time which might apply in respect of such claim.

23.8.2 Without limiting the generality of Clause 35.4.1 the circumstances referred to in that

Clause include:

23.8.2.1 the nature of additional work, time;

23.8.2.2 abnormal climatic conditions; and

23.8.2.3 any disruption which is entirely beyond the Contractor's control.

23.8.3 Instead of granting extension of time, if feasible, the Project Manager may without

compensation instruct the Contractor to accelerate the rate of progress to achieve

Practical Completion without extension of time.

23.9 Penalty for delay

23.9.1 If the Contractor fails to complete the Works to the extent which entitles him to receive

a Certificate of Practical Completion in terms of Clause 23.10.2, by the Due

Completion Date, the Contractor shall be liable to the Employer for an amount

calculated 0.3% of the Contract Price per delayed day, which shall be paid for every

day which shall elapse between the Due Completion Date and the date stated in the

Certificate of Practical Completion. However, the total amount due under this Sub-

Clause shall not exceed the maximum of 10% of the Contract Price.

23.9.2 The imposition of such penalty shall not relieve the Contractor from his obligation to

complete the Works or from any of his obligations and liabilities under the Contract,

23.9.3 The Employer may set off or deduct from the fees due to the Contractor any penalty

amounts due and owing by the Contractor in terms of clause 23.9.1.

23.9.4 If, before the issue of the Certificate of Practical Completion the whole of the Works,

any part of the Works has been:

23.9.4.1 Certified by the Project Manager as complete in terms of a Certificate of

Completion, or

23.9.4.2 Occupied or used by the Employer, his agents, employees or other contractors

(not employed by the Contractor),

23.9.5 the penalty for delay shall be reduced by an amount which is determined by the

Project Manager to be appropriate in the circumstances.

23.9.6 If the penalty payable by the Contractor has reached 10% of the Contract Price, then

any subsequent breach shall become a material breach and the Employer shall be

entitled to terminate the Contract with immediate effect.

23.10 Completion

23.10.1 Save as otherwise provided in the Contract, the Contractor shall be entitled to receive

a Certificate of Practical Completion when the Works have reached Practical

Completion. When the Works are about to reach the said stage, the Contractor

shall, in writing, request a Certificate of Practical Completion and the Project

Manager shall, if he is not going to issue the Certificate of Practical Completion,

within 14 (fourteen) days after receiving such request, issue to the Contractor a

written list setting out the work to be completed to justify Practical Completion.

Should the Project Manager not issue such a list within the 14 (fourteen) days,

Practical Completion shall be deemed to have been achieved on the Due

Completion Date.

23.10.2 As soon as the work referred to in the list issued in terms of Clause 23.10.1 has been

duly completed, the Project Manager shall deliver to the Contractor and the

Employer the Certificate of Practical Completion, together with a further written list

setting out the work to be completed to justify Completion.

23.10.3 Upon the issue of the Certificate of Practical Completion:

23.10.3.1 the Works shall be deemed to have been completed for the purposes of

Clause 23.9.1, and

23.10.3.2 the Employer shall be entitled to take occupation of the Works, provided that the

Contractor is given access to complete the Works in terms of the Contract.

23.10.4 As soon as the work referred to in the further list issued in terms of Certificate of

Clause 23.10.2 has been duly completed, the Project Manager shall deliver to the

Contractor and the Employer the Certificate of Completion;

23.10.5 Provided that the Project Manager shall be empowered to issue such certificate

leaving any work and/or the rectifying of defects, and/or the clearing of the Site as

specified therein, to be completed by a date stated in the Certificate of Completion

and the Contractor shall be obliged to complete the work specified by that date.

Should the Contractor fail to complete the work by the specified date, the Defects

Liability Period shall be extended by the amount of the additional time taken by the

Contractor to complete the work specified, and the terms of Clause 30.8.5.1 shall

apply with the necessary changes.

23.10.6 Upon the issue of a Certificate of Completion:

23.10.6.1 the Defects Liability Period shall commence;

23.10.6.2 the possession of the Site shall revert to the Employer, and

23.10.6.3 insurance taken out in respect of the Works, shall cease, in terms of Clause 34.

23.10.7 The Employer need not occupy the Works before the Due Completion Date. If the

Employer takes occupation of the Works or part thereof before the Due Completion

Date, the Contractor shall request the Project Manager to check the extent of

completeness of the Works and provide a list of the outstanding Works, Defects to

be rectified and any clearance to be done by the Contractor (“list of outstanding

issues”). Once the Contractor has complied with the list of outstanding issues such

date shall be deemed to be the Due Completion Date, unless occupation is due to

the Contractor's method of work.

The contractor must submit a project plan (programme) for carrying out the works to meet the due completion date. The plan must be updated as necessary and approved by the Project Manager. The contractor must also provide superintendence and employ competent personnel.

The contractor warrants it has the necessary skill, expertise, and capacity to deliver the works, and that it is not a restricted enterprise and has not engaged in corrupt activities.

The contract includes quality and related matters, including inspection, testing, and quality assurance requirements.

The contract is a measurable (rates-based) contract. Payments are made strictly in accordance with approved rates and actual quantities executed on site. The agreed rates are attached as an annexure. The contract price is inclusive of VAT.

The contractor must not change its BBBEE status without prior written consent from the Employer's Chief Procurement Officer and Group Chief Executive Officer. Any change that impacts BBBEE status requires approval.

The contract includes compliance with the Occupational Health and Safety Act and regulations, safety on site, contractual safety clauses, and compliance with the Compensation for Occupational Injuries and Diseases Act. It also covers protection of persons and property, reporting accidents, and safety legislation and policies.

The contract includes provisions for heritage objects and resources, including fossils, coins, articles of value, and geological or archaeological interest, with procedures for discovery and preservation.

The contract includes standard conditions of contract covering definitions, interpretation, general provisions, condition precedent (not applicable), priority of documents, duration, contractor's and employer's warranties, indemnities, assignment and subcontracting, joint and several liability, basis of contract, contractor's general obligations, change in control and BBBEE, drawings, heritage objects and resources, facilities for others, time and related matters, supervision, access to site, time for practical completion, price and payment, temporary level crossing, interference with employer's assets, blasting, safety compliance, protection of persons and property, quality, risks, force majeure, accident reporting, insurances, termination, dispute resolution, public relations, confidentiality, entire agreement, severability, independent status, independent advice, and counterparts.

The contractor must submit a project plan (programme) for carrying out the works to meet the due completion date. The contractor must not change its BBBEE status without prior written consent from the Employer's Chief Procurement Officer and Group Chief Executive Officer.