TENAGA NASIONAL BERHAD

PARTICULAR CONDITIONS

1. The General Conditions shall be amended in

accordance with the provisions of these Particular
Conditions.

2. These Particular Conditions shall be read and

construed with the General Conditions.

3. If there is any conflict or inconsistency between the

provisions of the General Conditions and these
Particular Conditions, these Particular Conditions
shall prevail.

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Issue Date: 1 August 2019
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PARTICULAR CONDITIONS

1. General Provisions

1.1
Definitions

Dates, Times and 1.1.7 Replace “…the date the Agreement comes into effect…” with “…the
Periods Effective Date…”

Other Definitions 1.1.15 Insert “and shall include Free Issue Materials.” at the end of the
paragraph.

1.1.20 Add new definition:

“Free Issue Materials” means any material supplied by the

Employer free of charge to the Contractor to be incorporated into
the Works.

1.1.21 Add new definition:

“Effective Date” means the date of Letter of Acceptance issued by

the Employer.

1.1.22 Add new definition:

“Letter of Acceptance” means the letter of formal acceptance,

signed by the Employer.

1.1.23 Add new definition:

“Gratification” shall have the same meaning as in the MACCA.

1.1.24 Add new definition:

“Relative” shall have the same meaning as in the MACCA.

1.1.25 Add new definition:

“MACCA” means the Malaysian Anti-Corruption Commission Act

2009 and includes its subsidiary legislation and guidelines.

1.1.26 Add new definition:

“Subcontractor” means any persons named in the Contract as a

subcontractor, or any persons appointed as a subcontractor by
the Contractor, with prior consent of the Employer, to carry out any
part of the Works; and the legal successors in title to each of these
persons.

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1.1.27 Add new definition:

“CIPAA” means the Construction Industry Payment and

Adjudication Act 2012.

1.5 Add new paragraph:

Communications
Any notice, claim or other document to be given or made under CIPAA by
the Contractor to the Employer shall be delivered to the “Employer’s
Department”, the “Legal Services Department” and the “Procurement and
Supply Chain Division” at the Employer’s registered address, as set out in
the relevant Appendix to the Contract.

1.6 Add new paragraph:

Statutory Obligation
Both Parties agree to comply and have adequate measures in place to
ensure compliance at all times with the provisions and obligations
contained in all applicable laws and regulations in Malaysia, including but
not limited to the Personal Data Protection Act 2010 (PDPA 2010), its
subsidiary legislation and associated code of practice as amended from
time to time in order to collect, use, process, record, hold, store, share
and/or disclose any or all information related to the performance and
obligations under this Contract.

The Contractor shall not transfer any personal data of a data subject to a
place outside Malaysia without the prior written consent of the Employer,
or the Contractor shall ensure that place in force any legislation that serves
the same purposes or which is at least equivalent to the level of protection
afforded by the Malaysian PDPA 2010.

The Contractor shall implement adequate technical and organisational

security measures to protect the Personal Data from any loss, misuse,
modification, unauthorised or accidental access or disclosure, alteration or
destruction.

The Contractor shall have the obligation to securely dispose of all personal
data whether in written, electronic or other form or media given by the
Employer and shall certify in writing to the Employer that such personal
data has been disposed of securely upon request by the Employer at any
time during the term or upon termination of this Contract, if it is no longer
required for the purpose for which it was to be processed. For avoidance
of doubt, PDPA 2010 does not override other applicable laws in Malaysia
that allows the retention of documents for a specified period, upon the
expiry or termination of this Contract.

Upon default, the defaulting Party shall be liable for and shall indemnify
(and keep indemnified) against each and every action, proceeding, liability,
cost, claim, loss, expense (including reasonable legal fees and
disbursements on a solicitor client basis) and demands incurred by the
aggrieved Party which arise directly or in connection with the defaulting
Party’s processing of Personal Data pursuant to this Contract, including
without limitation those arising out of any third party demand, claim or

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action, or any breach of contract, negligence, fraud, willful misconduct,

breach of statutory duty or non-compliance with any part of the Data
Protection Legislation by the defaulting Party or its employees, servants,
agents or representatives.

For the purpose of information and notification, the Employer’s Personal

Data Protection Policy can be accessed at at
https://www.tnb.com.my/terms-policy/personal-data-protection-policy-
pdpa/.

2. The Employer

2.5 Add new Sub-Clause 2.5:

Right to
Investigate Where the Employer has reasonable concerns regarding behaviour
involving gratification on behalf of the Contractor, the Employer shall have
the right to:

a) direct the Contractor to investigate the matter, and the Contractor

shall carry out its investigations in the manner as directed by the
Employer; and/or

b) conduct its own investigation into the matter, and the Contractor shall
provide all reasonable assistance, information and documentation to
the Employer, in respect of the conduct of investigations.

2.6 Add new Sub-Clause 2.6:

Direct Payment and
Recovery of Payment If the Employer receives a written request from any Subcontractor for
under Section 30 of payment pursuant to an adjudication decision obtained against the
CIPAA Contractor under CIPAA, the Employer shall comply with the requirements
of CIPAA.

The Employer shall be entitled upon receiving the payment request from
the Subcontractor to communicate directly with the Subcontractor but
jointly with the Contractor to verify the details of the adjudication decision.

If the Employer makes any payment under CIPAA to any Subcontractor, the
Employer shall be entitled to recover such amounts paid to the
Subcontractor from the Contractor from any of the following, either
individually or by way of combination:

a) as an undisputed debt payable by the Contractor to the Employer;

and/or

b) by deducting from any monies due or to become due and payable to

the Contractor under this Contract; and/or

c) by encashing the Performance Security (if provided for and stated

accordingly in the Appendix); and/or

d) by deducting from the retention sum as stated in the Appendix,

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Issue Date: 1 August 2019
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at any time after making payment to the Subcontractor.

The Contractor shall have no right to claim from the Employer, any amounts
recovered by the Employer from the Contractor due to any payment, cost
and expense by the Employer arising from an adjudication decision under
CIPAA, notwithstanding that such adjudication decision is subsequently
set aside or superseded by any judgement or order of any court or in an
award in an arbitration.

In addition to the amounts paid by the Employer to any Subcontractor

under CIPAA, the Employer shall be entitled to deduct from the
Contractor’s approved interim payments under Clause 11 [Contract Price
and Payment], any direct and incidental cost and expense incurred by the
Employer (including legal fees) resulting from the Employer complying with
any adjudication decision arising under CIPAA.

3. Employer’s Representatives

3.1 Insert “The authorised person may appoint his representatives for the
Authorised Person Works and shall notify to the Contractor”, after end of sentence.

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Issue Date: 1 August 2019
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4.

The Contractor Insert “excluding Free Issue Materials”, after “. . . all supervision, labour,
Materials,...”
4.1
General Obligations
Add new paragraph:

The Contractor shall, in providing the Works pursuant to this Contract:

a) act honestly and fairly;

b) provide the Employer with true and accurate information;

c) comply with the Employer’s position on anti-corruption, along with

any guidelines on ethics and integrity communicated by the
Employer and made available in the Employer’s official website;

d) not offer or provide, directly or through any intermediaries, any

bribe, gift, hospitality, entertainment, donation, consideration,
reward, favour, any material or immaterial benefit or other
gratification, commission, fee, brokerage or inducement to an
employee, director or other representative of the Employer, for the
purpose of improperly influencing a business decision to act
contrary to the Employer’s interest or for the purpose of obtaining
and advantage in the implementation of a contract;

e) not offer or provide any gratification which might be considered a

bribe under either local or international legislation to a government
official, either in Malaysia or any other country;

f) not collude with other parties interested in this Contract to

preclude or compromise the implementation of this Contract. The
Contractor also undertakes to report to the Employer, through its
official reporting channels, any such attempts made by others to
involve the Contractor in acts of collusion against the Employer;

g) not use improperly, for purposes of competition or personal gain,

or pass on to others, any information which may be reasonably be
regarded as confidential and is provided by the Employer as part
of the business relationship, including plans, technical proposals
and business details including information contained or
transmitted electronically;

h) not to give any gratification to a public official, in order to expedite

a process in relation to work carried out for the Employer;

i) not participate in any other criminal activity, such as extortion,

embezzlement, money laundering, or any similar or equivalent
improper act or practice;

j) take all measures to prevent corrupt practices, unfair means and

illegal activities at all times while carrying out its contractual
obligations for or on behalf of the Employer;

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k) inform the Employer if any employee or director of the Contractor

or any person acting on behalf of the Contractor, either directly or
indirectly, is a relative of any of employee or director of the
Employer, or alternatively, if any employee or director of the
Employer or their relative has any interest, financial or otherwise,
in the Contractor;

l) not lend to or borrow any money from or enter into any monetary
dealings or transactions, directly or indirectly with any employee
or director of the Employer;

m) ensure that staff and other representatives of the Contractor

dealing with the Employer, or acting on behalf of the Employer in
servicing a contract, are aware of the provisions above; and

n) immediately notify the Employer in writing, if it is aware of any

breach of this provision, or if it becomes reasonably suspicious
that this provision may have been breached.

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Issue Date: 1 August 2019
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4.2
Contractor’s
Insert “and to act” after “ . . . to receive instructions”
Representative

4.3
Add new paragraph:
Subcontracting
The Contractor shall provide to the Employer a list of all its Subcontractors
appointed for the carrying out of the Works:

a) within 7 days of the Commencement Date of the Subcontractors

having been appointed by the Commencement Date; and

b) after the Commencement Date, within 7 days of any other

Subcontractor being appointed.

The list shall contain the following information:

a) full names of the Subcontractors as registered with the relevant

authorities;

b) if an unincorporated joint venture, the full names of the members of

the unincorporated joint venture as registered with the relevant
authorities;

c) their registered address and business address;

d) the key contact person and contact details;

e) the scope of Works and portion of Works subcontracted to each

Subcontractor and their respective prices; and

f) their duration including commencement and completion dates of

their respective portion of the Works.

4.4 Replace “…14 days…” with “…28 days…” in the first paragraph.
Performance
Security Add new paragraph:

“This performance security shall be valid and shall be irrevocable and

shall remain in force and effect until six (6) months after the end of period
for notifying defects as stated in the Appendix. The Employer may
terminate the Contract if the Contractor fails to submit the performance
security within 28 days”

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4.5 Add new Sub-Clause 4.5:

Safety Procedures
“The Contractor shall comply with all applicable safety regulations,
Employer’s instruction on safety matters and take care for the safety of all
persons entitled to be on the Site”.

“The Contractor shall provide any temporary works (including roadways,

footways, guards and fences) which may be necessary because of the
execution of the Works, for the use and protection of the public and of
owners and occupiers of adjacent land.”

4.6 Add new Sub-Clause 4.6:

Quality Assurance
“If required by the Contract, the Contractor shall establish a specific
project Quality Plan and Inspection and Test Plan to demonstrate
compliance with requirement of the Contract. The Employer shall be
entitled to audit any aspect of the system of the Contractor’s and his
subcontractor’s Quality Plan and/or Inspection and Test Plan”.

4.7 Add new Sub-Clause 4.7:

Environmental
Protection “The Contractor shall take all reasonable steps to protect the
environment (both on and off the Site) and to limit damage and nuisance
to people and property resulting from pollution, noise and other results
of his operations.”

4.8 Add new Sub-Clause 4.8:

Reports on Payments
by Contractor to The Contractor shall provide to the Employer reports pertaining to all
Subcontractors Subcontractors on a monthly basis. The first report shall cover the
period up to the end of the first calendar month following the
Commencement Date. These reports shall be submitted monthly
thereafter until the date of issuance of the final payment in accordance
to Sub-Clause 11.6 [Final Payment].

Each such payment report shall include:

a) every progress payment made by the Contractor to each

Subcontractor;

b) details of all payments that are due including for approved

variations but not made to any Subcontractor, the reasons for such
non-payment and the proposed solution including timing to resolve
such non-payment; and

likelihood of any dispute arising due to the non-payment of any amount

due and payable by the Contractor to the Subcontractors.

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6. Employer’s Liabilities

6.1 Delete item (e), (h) and (i).

Employer’s
Liabilities

7. Time of Completion

7.3 Add “or any Force Majeure event.” after the word “Employer’s Liabilities”
Extension of Time before the end of the sentence in paragraph 1, Line 3.

10. Variation and Claims

10.2 Add “The record shall be verified by the Employer and agreed by both
Valuation of Parties.” at the end of the sub-clause 10.2 e:
Variations

10.4 Add “except for the cost incurred from rectifying any loss or damage
Right to Claim to Contractor’s Equipment” at the end of the 1st sentence.

11. Contract Price and Payment

11.2 Replace sub-heading “Monthly Statement” with “Statements and

Monthly Statements invoices”

Replace the whole clauses with the followings:

The Contractor shall be entitled to be paid at the interval specified in the

Appendix:
a) the value of the Works executed,
b) the percentage stated in the Appendix of the value of the Materials and
Plants delivered to the Site at a reasonable time,

subject to any additions or deductions which may be due.

The Contractor shall submit at the intervals specified in the Appendix to

the Employer a complete statement and invoice showing the amounts to
which he considers himself entitled, together with supporting documents,
and which shall include the report on progress payments in accordance
with Sub-Clause 4.8 [Reports on Payments by Contractor to
Subcontractor].

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11.3 Replace “…28 days. . .” with “…49 days… ” in the first paragraph.
Interim Payment

11.4 Replace “…14 days…” with “…28 days…” and add “with submission of
Payment of First Half a complete statement and invoice by the Contractor.” at the end of the
of Retention sentence.

11.5 Replace “…14 days …” with “…28 days with submission of a complete
Payment of Second statement and invoice by the Contractor ...”
Half of Retention

11.6 Replace “…28 days…” with “…49 days…” in the second paragraph.
Final Payment

12. Default

12.1 Add new paragraph:

Default by Contractor
“Without prejudice to any other rights of the Employer, if the Contractor,
its employee(s), director(s) or agent(s) is convicted by a court of law for
corrupt practices, unfair means and illegal activities in relation to this
Contract, or any other contract that the Contractor may have with the
Employer, the Employer shall be entitled to terminate this Contract at any
time, by giving immediate written notice to that effect to the Contractor.

The Contractor shall be liable for all losses, costs, damages and expenses
(including any incidental costs and expenses) incurred by the Employer
arising from termination under Paragraph 3 above.

For the avoidance of doubt, the parties hereby agree that the Contractor
shall not be entitled to claim from the Employer, any form of losses
including loss of profit, damages, claims or other items whatsoever upon
termination under Paragraph 3 above.”

12.3 Replace sub-heading with “Insolvency and Bankruptcy”

Insolvency
Insert “or bankrupt” after “... is declared insolvent” in the first sentence and
“or bankruptcy” after “... Contractor’s insolvency” in the second sentence.

12.4 Replace “…28 days…” with “…35 days…” in the last paragraph.
Payment upon
Termination

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13. Risk and Responsibility

13.2 Replace “…28 days…” with “…35 days…” in the last paragraph.
Force Majeure

14. Insurance

14.1 Add “until taking over, relevant” after the word “maintain” in Line 1, first
Extent of Cover paragraph.

Delete “and the Contractor’s Equipment” and insert “and” after “…..Works,
Materials,” in sub- paragraph (a) of the first paragraph

Delete first paragraph ,sub paragraph (c)

14.2 Delete “held jointly by the parties and” from Line 2, second paragraph.
Arrangements

14.4 Add new Sub-Clause 14.4:

Other Insurances
“The Contractor shall effect and maintain all other relevant insurances
in so far as necessary to comply with any relevant impositions of Laws.”

15. Resolution of Disputes

15.1 Add a new paragraph after 15.1:

Adjudication
“In the event that CIPAA adjudication proceedings is invoked by the
Contractor against the Employer for a particular claim, then that
particular claim shall be invalidated and exempted from being pursued
under the Rules for Adjudication as referred to in this Sub-Clause 15.1.

Notwithstanding the above, nothing under this Sub-Clause 15.1 shall

effect the rights of the Employer and/or Contractor to refer any dispute
or matter, to arbitration under the rules as specified in the Appendix, or
to refer the matter to a court of competent jurisdiction.”

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Issue Date: 1 August 2019