NZS3910:2013

Copyright in NZS3910:2013 is owned by the Crown and administered by the New Zealand Standards Executive. Reproduced with permission from Standards New Zealand, on behalf of New Zealand Standards Executive, under copyright licence LN001381.

Section 1 Interpretation

Clause 1.2 Definitions

Engineer: The professional engineer, architect, surveyor, or other one natural person named or identified in the Special Conditions or such other one natural person as may be subsequently appointed by the Principal under 6.1 to act as Engineer to the Contract. The Engineer shall not be a body corporate or a firm.

Section 4 Subcontracts

General

Clause 4.1.3

The subcontracting of any of the Contract Works shall not relieve the contractor from any liability or obligation under the contract.

Nominated Subcontractors

Clause 4.2.3

The Contractor shall not be required to employ a Nominated Subcontractor which declines to enter into an appropriate subcontract with the Contractor. An appropriate subcontract shall be one which imposes on the Nominated Subcontractor the obligations imposed on the Contractor towards the Principal in respect of the subcontract works, and which includes reasonable provisions for:

Indemnifying the Contractor for the liabilities in respect of the subcontracted works for which the Contractor has contracted to indemnify the Principal;
Indemnifying the Contractor for claims in respect of negligence or default by the Nominated Subcontractor, its servants, and agents;
Sequence of Operations and Completion times;
Indemnifying the Contractor for liquidated or other damages or loss arising out of delays in the completion of the Contract Works attributable directly or indirectly to the Nominated Subcontractor; and
The submission of all disputes to arbitration.

Clause 4.2.4

If a nominated Subcontractor:

Fails without reasonable grounds to enter into a subcontract with the Contractor within 10 Working Days of the written request to do so;
Repudiates its subcontract or makes default such that the Contractor is entitled to treat the subcontract as at an end; or
Refuses to complete the work by reason of breach by on the part of the Contractor;

The Contractor shall notify the Engineer in writing.

Section 5 General responsibilities

General responsibilities

Clause 5.1.3

Where the Contract provides that the Contractor has responsibility for design, the design work shall include necessary investigation, design calculation, drawing, specification of Materials and workmanship, testing, and monitoring of the design on or off the Site, unless otherwise provided in the Contract The Contractor shall undertake the design of the Temporary Works except to the extent that the Contract provides such design or provides that it is to be undertaken by, or on behalf of, the Principal.

Clause 5.1.4

Where the Contractor undertakes the design of any part of the Contract Works, the Contractor shall be responsible for carrying out such design with reasonable skill, care and diligence. No comment, review or approval by the Engineer or Principal shall relieve the Contractor of any responsibility for that part of the Contract Works.

Clause 5.1.5

The Contractor shall be responsible for the adequacy, stability, and safety of all its Site operations and methods of construction, provided that the Contractor shall not be responsible for the design or specification of the Contract Works except as provided under 5.1.3 and 5.1.4.

Clause 5.1.6

The Principal warrants that it has made available to the Contractor before the submission of the Contractor's tender all information of which it is aware, which has been obtained by or on behalf of the Principal or the Engineer for the purposes of the Contract, on the nature of the physical conditions relevant to the Contract Works. The Principal makes no warranty as to the sufficiency or accuracy of such information. The Contractor shall be responsible for the interpretation of all such information for the purposes of the Contract Works.

Contractor’s Representative

Clause 5.2.1

The Contractor shall provide all necessary supervision during the Contract. It shall have on the Site at all working times a competent representative who shall be one natural person only not being a body corporate or firm and whose name shall be notified to the Engineer in writing and who shall be authorised to receive on behalf of the Contractor any instructions from the Engineer or the Engineer's Representative. All work shall be carried out under the supervision of the Contractor's Representative.

Control of Employees

Clause 5.3

The Engineer may object to and direct the Contractor to remove from the Contract Works any employee of the Contractor or of a Subcontractor in or about the execution of the Contract Works who by reason of serious misconduct, incompetence, or negligence in the proper performance of his duties is a danger to safety or welfare. An employee required to be removed shall not again be employed upon the Contract Works without the permission of the Engineer.

Separate Contractors

Clause 5.5.1

Where provided in the Special Conditions, the Principal may arrange for work on the Site not included in the Contract to be carried out by Persons other than the Contractor including the Principal’s employees and concurrently with the carrying out of the Contract Works. The Contractor shall cooperate with the Separate Contractors and afford reasonable opportunities for the execution of their work. The Principal shall ensure that in carrying out any such work any Separate Contractor shall in all respects comply with all reasonable requests from the Contractor.

Protection of Persons and property

Clause 5.7.1

So far as the Site and the Contract Works are under the Contractor's control, the Contractor shall take reasonable steps to keep them in an orderly state and in such a condition as to avoid danger to Persons and property.

Clause 5.7.2

The Contractor shall take all practicable steps to:

Provide and maintain a safe working environment;
Identify any significant hazards;
Ensure that any employee or Subcontractor involved in carrying out the Contract Works is not unnecessarily exposed to hazards which are under the Contractor's control; and
Have proper procedures for dealing with emergencies that may arise.

Clause 5.7.3

The Contractor shall:

Maintain a register of accidents and serious harm;
Investigate accidents and identify their cause; and
Ensure that all Persons under the Contractor's control are appropriately supervised.

Clause 5.7.4

The Contractor shall give to the Principal through the Engineer a copy of any report which the Contractor is required to make to a public authority on any accident which is associated with the carrying out of the Contract Works and results in serious harm to any Person.

Clause 5.7.5

The Principal shall notify the Contractor through the Engineer of any safety hazards associated with the Contract Works or the Site, or special safety measures required, of which the Principal or the Engineer are aware, and with which an experienced contractor may not reasonably be expected to be familiar.

Clause 5.7.6

The Contractor shall provide all watching and provide, erect, maintain and when no longer required remove all barricades, fencing temporary roadways and footpaths, signs, and lighting necessary for the effective protection of property, for traffic, and for the safety of others.

Compliance with laws

Clause 5.11.1

In respect of the Contract Works the Principal and the Contractor shall comply with the provisions of all statutes, regulations, and bylaws of government, local, and other public authorities that may be applicable to the Contract Works

Clause 5.11.4

Except as otherwise provided in the Special Conditions, the Contractor shall at the Contractor's expense give all notices and obtain all licences for Temporary Works and for the Contractor's methods of carrying out the Contract Works (except in each case to the extent that they are specified or designed by or on behalf of the Principal) and temporary amenities and temporary services required for the construction of the Contract Works. The Principal shall at the Principal's expense obtain any such licences stated in the Special Conditions under 5.11.4.

Clause 5.11.8

From time to time at the request of the Engineer and in any case before making application for any Practical Completion Certificate, the Contractor shall deliver to the Engineer:

All Producer Statements required to be provided by the Contractor under 10.4.5,
Any necessary documents or other information for the Principal to obtain any licences (including compliance certificates) for which the Principal is responsible under 5.11.3 and 5.11.4, and
All documents necessary to prove the issue of licences for which the Contractor is responsible under 5.11.3 and 5.11.4.

Underground and above ground utilities

Clause 5.13.2

The Contractor shall be responsible for physically Iocating the position of all such utilities and shall arrange with the controlling authorities for any necessary exploratory work, location, protection, isolation, offsetting reinstatement, or alterations required. The Contractor shall record any alterations which it makes to such utilities.

Safety Plan

Clause 5.17.1

Where required by the Special Conditions, the Contractor shall prepare and submit to the Engineer a Site-specific safety plan for the execution of the Contract Works.

Clause 5.17.2

The Site-specific safety plan shall address the means by which the Contractor intends to meet its obligations under 5.7 and shall comply with any other requirements for safety set out in the Contract.

Clause 5.17.4

The Contractor shall not commence any part of the Contract Works on Site unless the Engineer has accepted the Site-specific safety plan or revised Site-specific safety plan.

Clause 5.17.5

Compliance with the Site-specific safety plan shall not relieve the Contractor from any of its duties, obligations, and liabilities under the Contract.

Quality Plan

Clause 5.18.1

Where required by the Special Conditions, the Contractor shall prepare and submit to the Engineer a quality plan for the execution of the Contract Works.

Clause 5.18.2

The quality plan shall describe the procedures for meeting the quality requirements of

the Contract for:

Materials and workmanship,
Monitoring and maintaining Subcontractors' performance,
Record keeping,
The documentation for signing-off the Contact Works as complete,
Procedures to ensure that all Persons engaged in undertaking the Contract Works are appropriately qualified, experienced and trained or working directly under the supervision of such Persons,
Inspection and testing,
Auditing the quality plan, and
Any other requirements for quality set out in the Contract.

Clause 5.18.4

The Contractor shall not commence any part of the Contract Works unless the Engineer has accepted the quality plan, or revised quality plan, relating to that part of the Contract Works.

Clause 5.18.5

Compliance with the quality plan shall not relieve the Contractor from any of its duties, obligations, and liabilities under the Contract.

Traffic management plan

Clause 5.19.1

Where required by the Special Conditions the Contractor shall prepare and submit to the Engineer a traffic management plan for the execution of the Contract works.

Clause 5.19.2

The traffic management plan shall meet the requirements for traffic management set out in the Contract.

Clause 5.19.4

The Contractor shall not commence any part of the Contract Works on Site unless the Engineer has accepted the traffic management plan, or revised traffic management plan, relating to that part of the Contract Works

Clause 5.19.5

Compliance with the traffic Management plan shall not relieve the Contractor from any of its duties, obligations and liabilities under the Contract.

As-built drawings and operation and maintenance manuals

Clause 5.20.1

Where required by the Special Conditions, the Contractor shall prepare:

Section 6 Engineer’s Powers and Responsibilities

Appointment of Engineer

Clauses 6.1.1

The Principal shall ensure that at all times there is an Engineer, and that the Engineer fulfils all aspects of the role and functions reasonably and in good faith.

Role of Engineer

Clause 6.2.1

The dual role of the Engineer in the administration of the Contract is:

As expert adviser to and representative of the Principal, giving directions to the Contractor on behalf of the Principal, and acting as agent of the Principal in receiving payment claims and providing Payment Schedules on behalf of the Principal, and
Independently of either contracting party, to fairly and impartially make the decisions entrusted to him or her under the Contract, to value the work, and to issue certificates

Engineer’s Representative

Clause 6.3.1

The Engineer may, from time to time by notice to the Contractor in writing, appoint an Engineer's Representative who shall be one natural person only, not being a body corporate or firm.

Clause 6.3.2

The Contractor may at any time by notice in writing to the Engineer object on reasonable grounds to the continuance of any person as Engineer's Representative. The notice shall state the grounds upon which the objection is based. The Engineer shall thereupon appoint another competent natural person in place of the person about whom the objection has been made.

Clause 6.3.3

The Engineer’s Representative may exercise any of the powers vested in the Engineer

Under the contract except:

The reviewing of matters in dispute;
The valuing of Variations, the provision of Payment Schedules, the issuing of a Practical Completion Certificate or a Final Completion Certificate, the granting of extensions of time, and any changing of the Drawings or Specifications, unless expressly authorised by the Engineer by written notice to the Contractor, and
Any other powers excluded by the Engineer by written notice to the Contractor.

Clause 6.3.5

The Engineer may appoint any Persons to assist the Engineer's Representative in carrying out his or her duties. The Engineer shall give written notification to the Contractor of Persons appointed to assist the Engineer’s Representative

Suspension of work

CLAUSE 6.7.2

During the suspension the Contractor shall properly secure and protect the Contract Works against damage and leave the Site in a safe and tidy condition.

Engineer may instruct urgent work

CLAUSE 6.8.1

In the event of:

Any accident, emergency or failure, or other similar event occurring to or in connection with the Contract Works; or
Any outstanding work or other work under the Contract that the Engineer considers to be urgent due to environmental or public safety issues, or because significant inconvenience to third parties might arise,

the Engineer may notify the Contractor in writing of any urgent work which he or she requires and reasons therefor.

CLAUSE 6.8.2

If the Contractor cannot be contacted or is unwilling or unable to act within a reasonable time to secure the works or to attend to any work that the Engineer has required under 6.8.1, the Engineer on behalf of the Principal may take such action as the Engineer reasonably considers necessary. The Contractor shall be entitled to take control of such operations as soon as it is willing and able to do so.

CLAUSE 6.8.4

The taking of any action by the Engineer under 6.8.2 shall not relieve the Contractor of any of its obligations under the Contract.

Section 11 Defects Liability

Remedy of defects

Clause 11.2.1

The Contractor shall remedy defects and damage in the Contract Works resulting from defective workmanship or Materials that arise before the end of the Defects Notification Period. The Engineer shall, during the Defects Notification Period or within 5 Working Days thereafter, give notice in writing to the Contractor of defects or damage to be remedied. The Contractor shall remedy any such defects or damage within 5 Working Days of receipt of the Engineer's notice or within such other reasonable time as agreed by the Engineer in writing.

Clause 11.2.2

If the Contractor fails to carry out any work notified under 11.2.1 within the time required under 11.2.1, the Engineer may, after giving 5 Working Days’ further written notice to the Contractor stating that it is given under this clause, direct others to undertake the work.

Guidelines

Role of Engineer

Clause G6.2.1

Final Paragraph –
To assist in achieving fairness and impartiality of decision making, separation of duties between the Engineer and other individuals already involved in the design of the project or in any other role that may impair the ability of the Engineer to act fairly and impartially should be considered by the Principal when appointing the Engineer.