Section 46: Contents of contracts

46. Contents of contracts (1) A procurement contract shall include the terms and conditions that are set out in the bidding documents or request for proposals as well as— (a) the names, addresses and telephone and fax numbers, of the contact persons of the parties to the contract; (b) the scope of the work; (c) the order of priority of contract documents; (d) the contract price or its mode of determination; (e) the conditions of acceptance; (f) the conditions and mode of payment; (g) the modalities of force majeure; (h) the price adjustment mechanisms; (i) the provisions for termination of the contract; (j) the procedure for dispute resolution; and (k) the applicable law. (2) Any amendment to the contract, other than changes which do not alter the basic nature or scope of the contract, shall be expressly agreed by the parties in writing. (3) An amendment to the contract that will increase the contract value by more than 25 per cent shall require fresh procurement proceedings except where the amendment has to be effected for a reason specified in section 25 (2) (c) or (d). (4) No formal amendment of the contract shall be required where the public body wishes to make a variation or invokes a contract price adjustment which is expressly authorised in the contract. (4A) No— (a) amendment requiring fresh procurement proceedings under subsection (3); (b) variation or adjustment under subsection (4); or (c) direct procurement under section 25 (2) (c) or (d), shall be made or carried out, as the case may be, with respect to major contracts that exceed the prescribed amount, without the prior approval of the Board. (5) There shall be included in every procurement contract a clause ensuring— (a) rates of remuneration and other conditions of work of the workers engaged in the execution of the contract that are not less favourable than those established for work of the same character in the trade concerned— P56 – 24 (3) [Issue 9] Public Procurement Act (i) by collective agreement applying to a substantial proportion of the workers and employers in the trade concerned; (ii) by arbitration awards; or (iii) by Remuneration Regulations made under the Employment Relations Act; (b) where remuneration and conditions of work are not regulated in a manner referred to in paragraph (a), rates of remuneration and other conditions of work which are not less favourable than the general level observed in the trade in which the contractor is engaged by employers whose general circumstances are similar. (6) No contractor shall be entitled to any payment in respect of work performed in the execution of the procurement contract unless he has, together with his claim for payment, filed a certificate— (a) stating the rates of remuneration and hours of work of the various categories of workers employed in the execution of the contracts; (b) stating whether any remuneration payable in respect of work done is due; (c) containing such other information as the public body administering the procurement contract may require to satisfy himself that this Act has been complied with. (7) Where the public body administering the procurement contract is satisfied that remuneration is still due to a worker employed on a public contract at the time the claim for payment is filed under subsection (2), he may, unless the remuneration is sooner paid by the contractor, arrange for the payment of the remuneration out of the money payable under the procurement contract. (8) Except with the ng the procurement contract may require to satisfy himself that this Act has been complied with. (7) Where the public body administering the procurement contract is satisfied that remuneration is still due to a worker employed on a public contract at the time the claim for payment is filed under subsection (2), he may, unless the remuneration is sooner paid by the contractor, arrange for the payment of the remuneration out of the money payable under the procurement contract. (8) Except with the written consent of the public body administering the contract, no contractor shall transfer or assign a procurement contract. (9) Every contractor shall display a copy of subsections (5), (6), (7) and (8) at the place at which the work required by the contract is performed. (10) In this section— “worker” has the same meaning as in section 2 of the Employment Rights Act. [S. 46 amended by s. 70 (6) of Act 33 of 2008 w.e.f. 2 February 2009; s. 42 (g) of Act 18 of 2016 w.e.f. 7 September 2016.]