193
194
Dispute
Prevention.
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(2) The Contractors shall, if required by the Government, assign to the Govern
ment or any contractors employed by them without payment, the benefit of any contract or contracts they may have made with any person or persons, firm or corporation, for the supply of any materials, or for the execution of any of the Works, and their interest in any land or buildings in or in the vicinity of the Works occupied or used by them in connection with or for the purpose of the construction and completion of the Works, and the Government may make such terms with such person or persons, firm or corporation, as they may think proper.
(3) The Government may deduct the cost of constructing and completing the Works and of all labour employed and materials purchased for the purpose from any sums which may be then or may thereafter become due to the Contractors or may recover the same from the Contractors as liquidated damages.
(4) The Government may in addition to deducting the costs mentioned in paragraph (3), also deduct all extra Engineering expenses and all extra expenses of supervision in and about the construction and completion of the work and may further deduct all sums due from the Contractors or to the Government under any of the provisions of this Contract, or may recover the same as liquidated damages.
(5) The value of the Works constructed at the date of the entry and taking possession by the Government, and the cost of completing the Works, and of the labour employed and materials purchased for the purpose under paragraph (3) of this clause and the costs, expenses and sums under paragraph (4) of this clause shall be ascertained and determined by the Engineer, and his Certificate showing the balance due or payable by the Contractors to the Government or by the Government to the Contractors shall be final and binding on the Government and the Contractors respectively,
(6) The Government in completing the Works in whole or in part at the Contractor's expenses under the provisions of this clause may add to, alter, modify or make omissions from or substitutions for the Works or any part thereof as though the Government had not entered upon or taken possession of the Works, and the Engineer in determining the balance in paragraph (5) of this clause mentioned shall take into account the value which he shall ascertain and determine under the provisions of paragraph (5) of all such additions, alterations, modifications, omissions and substitutions.
$2. In order to prevent disputes from arising (either before the commence- ment, during the progress, or after the completion of the Works by the Contractors or after entry on and taking possession of the Works by the Government rightly or wrongly or after the abandonment of the Works by the Contractors) as to any and every claim by the Contractors whether arising under or out of this Contract or from the breach or alleged breach thereof or in any way incidental thereto, or connected therewith, or not herein provided for, including without limiting the generality of the foregoing provision, questions as to the quality, quantity and kind of materials, labour, supervision, workmanship, plant and temporary works the order of the Works and the several parts thereof, the prescribed or extended times (if any) for completion of the Works, the measurements and valuations of the Works and materials and all additional, altered, modified, substituted or omitted work and certificates of satisfaction and for payment and as to all other matters and things in the Contract Documents left to or dependent on the decision. opinion, order, direction, requisition, and for certificate of the Engineer or the Inspector, his or their measurement, valuation, decision, opinion, order, direction, requisition and/or certificate shall be final and binding upon the Contractors and the Crown Agents and for the Government (fraud or fraud and collusion only excepted) and the Crown Agents and for the Government shall not be liable in respect of any claim by the Contractors in respect of any of the matters or things aforesaid, unless and until the liability of the Crown Agents and for the Government and the amount of such liability in respect of the claim shall have been certified by the Engineer or the
15
Inspector as the case may be, whose certificate shall be a condition precedent to any liability of the Crown Agents and for the Government or any right of action against
the Crown Agents and for the Government in respect of such claim.
83. In measuring, valuing, deciding or certifying, the Engineer and for the Engineer not an Inspector is or are not intended to act as an Arbitrator or Arbitrators, but as Arbitrator. Engineers do by their skill and from their knowledge of the facts and incidents connected with the Works and in so far as any facts are not within his or their own knowledge, the Engineer and the Inspector respectively shall be at liberty to inform himself or themselves by enquiry of such person or persons as he or they may consider necessary. The Engineer and/or the Inspector shall at all times be considered seised of all the facts necessary for him or them to form his or their own opinion, make his or their measurements or valuations, give his or their decisions and orders, make his or their requisitions, or give or refuse his or their certificate, and they shall be at liberty to certify at such times and in such manner as in his or their discretion he or they may think proper, and he or they shall not be bound to give any reason for or any particulars of his or their certificate or any reason for his or their not certifying.
84. In case any dispute or difference shall arise between the Government Arbitration and for the Crown Agents on the one hand and the Contractors on the other hand not already hereinbefore provided to be otherwise settled or determined in the manner set out in Clauses 82 and 83, such dispute or difference shall be referred to two Arbitrators, one to be appointed by each of the parties in difference, and in such case the Government and for the Crown Agents shall not be liable in respect of any claim by the Contractors unless and until the liability of the Government and /or the Crown Agents and the amount of their liability in respect of the claim shall have been awarded by the Arbitrators, or the Umpire in the case of difference between the Arbitrators, whose award in such case shall be a condition precedent to any liability of the Government and/or the Crown Agents or any right of action against the Government and /or the Crown Agents in respect of such claim. The said Arbitrators and the Umpire shall have all the powers conferred on them as such by the Arbitration Act, 1889, or any amendment thereof, and shall be competent to enter upon the references without any further or more formal submission than is contained in the Contract. The said Arbitrators and the Umpire may if they shall think fit appoint a legal assessor to sit with or advise them or him during the arbitration, and the fees of any such legal assessor shall be borne in equal shares by the Government and the Contractors unless the said Arbitrators or the Umpire otherwise decide. No action shall be brought or proceedings commenced by the Contractors against the Government and /or the Crown Agents until the Arbitrators shall have published an award and then only in accordance therewith.
85. Where any legal or other notice or any other document is to be given to Notices how to be or served upon the Contractors it shall be deemed to be duly given or served, if it given. shall have been either delivered to them personally, or to their recognised agent (including in the case of a Company, the Secretary of such Company), or delivered at, or sent through the post, addressed to them at the Contractors' office on the site, or sent through the post addressed to the last known place of business or abode of the Contractors, or in the case of a Company to its registered office; and in the case of a firm of Contractors a notice or other document which shall be so given to, or so served on any one of the partners in such firm, shall be deemed to have been given to or served on all of them.
86. In the case of terms repeated wholly or partially in the Contract Documents, Differences or any of them, or in the case of any variance between the terms thereof or any of between Contract
Documents. them, the Government may adopt all or any of the provisions so as to secure in a'l cases the most ample protection,
87. Neither the Governor of the Colony nor any member or officer of the Governor, Member> Government nor the Crown Agents nor any of them nor any of their officers shall be of Government, in anywise personally liable for the acts and obligations of the Government under the not to be
Crown Agents, etc. Contract or answerable for any default or omission in the observance, performance Personally or fulfilment of any of the acts, matters or things which are hereby made obligatory Liable.
on the Government.