香 港 ㈵ 別 行 政 區 政 府

The Government of the Hong Kong Special Administrative Region

Env iron men t, Tra nspor t

政 府 總 部
and Wo rks Burea u
環 境 運 輸 及 工 務 局 Go v e rnm en t S e c re t ariat

香港花園道美利大廈 Murray Building, Garden Road,

Hong Kong

Ref. : ETWB(W)925/50/01 Pt.2

Group : 2, 5, 6, 9

12 January 2004

Environment, Transport and Works Bureau

Technical Circular (Works) No. 3/2004

Ethical Commitment by Consultants and Contractors

Scope

This Circular introduces new terms to consultancy agreements under

the purview of the Architectural and Associated Consultants Selection Board (AACSB)
and the Engineering and Associated Consultants Selection Board (EACSB) and all
construction contracts, including Design and Build contracts and term contracts, in order
to enhance the ethical commitment of consultants and contractors.

Effective Date

2. This Circular applies to:

(a) consultancy agreements for which the invitation to submit technical

and fee proposals is made on or after 30 January 2004; and

(b) construction contracts for which the invitation of tenders is gazetted

on or after 30 January 2004 or the letter of invitation to tender is
issued on or after 30 January 2004.

ETWB TCW No. 3/2004 Page 1 of 2

Effect on Existing Circulars

3. This Circular shall be read in conjunction with ETWB TCW No.

29/2003. The Special Conditions of Employment Clause SCE XX relating to
confidentiality promulgated in ETWB TCW No. 29/2003 has been incorporated
into SCE 1(E) at Appendix A to this Circular.

Implementation

4. The Special Conditions of Employment at Appendix A and Special

Conditions of Contract at Appendix B shall be incorporated into the consultancy
agreements and construction contracts respectively in accordance with paragraphs 1
and 2.

5. Departments shall check that declarations forms (sample of which are

set out in Appendix C) submitted by consultants and contractors have been properly
completed. Nevertheless, checking of the arrangements between the
consultants/contractors and their employees, agents, sub-consultants, sub-contractors
and advisers are not normally required.

(W S Chan)
Deputy Secretary for the Environment,
Transport and Works (Works) 2

ETWB TCW No. 3/2004 Page 2 of 2

 Appendix A

Special Conditions of Employment Clauses

on Ethical Commitment by Consultants

Marginal
No. heading Clause
1 SCE 1 Replace Clause 9 of the General
Conditions of Employment by the following clause:

Confidentiality (A) Except as necessary for the performance of the

Services the Consultants shall not (except with the prior
written consent or as instructed by the Director's
Representative) disclose the terms and conditions of this
Agreement or any report, document, specification, drawing,
plan, software, data or other particulars furnished by or on
behalf of the Employer in connection therewith, or any such
or similar information generated or produced by the
Consultants pursuant to this Agreement, to any person other
than a person employed or engaged by the Consultants in
carrying out this Assignment, an agent of the Consultants,
any approved sub-consultant or the Consultants' accountants,
insurers and legal advisers.

(B) Any disclosure to any person, agent,

sub-consultant, accountant, insurer, legal adviser permitted
under sub-clause (A) of this clause shall be in strict
confidence and shall be on a "need to know" basis and
extend only so far as may be necessary for the purposes of
this Agreement.

(C) The Consultants shall take all necessary

measures (including by way of contractual provisions where
appropriate) to ensure that their employees, agents,
sub-consultants and advisers as mentioned in sub-clause (A)
are aware of and shall comply with the confidentiality and
non-disclosure provisions contained in this Agreement. If
required by the Employer, the Consultants undertake to
procure for and on behalf of the Employer a confidentiality
agreement in a form to be prescribed by the Employer from
any employee, agent, sub-consultant and adviser to whom
any confidential information is to be disclosed.

(D) The Consultants shall not without the prior

written consent of the Director's Representative publish,
either alone or in conjunction with any other person, in any
newspaper, magazine, periodical or through any electronic
medium, any article, photograph or illustration relating to
this Agreement.

(E) If the Consultants have provided the Employer

ETWB TCW No. 3/2004 Appendix A PageA1 of 4

 Appendix A
with documents and information which they have declared in
writing to be confidential and stamped accordingly whether
in relation to their practice or special circumstances or for
other good causes, unless the Director within two months of
receipt of such information by notice in writing disagrees,
then that information will be treated as confidential. In
relation to disputes between the Employer and the
Consultants, the Employer may subject to the following
provisions disclose the outline of any dispute and the terms
of settlement for which a settlement agreement has been
reached with the Consultants or the outcome of the
arbitration or any other means of resolution of dispute to the
Public Accounts Committee of the Legislative Council upon
its request. Before disclosures are made to the said
Committee, the Employer shall inform the Consultants.
Disclosures shall not be made to the said Committee before
expiry of the first 6 months from the date of the settlement
agreement, arbitration award or, as the case may be, outcome
of other means of resolution of dispute without the written
consent of the Consultants but such consent shall not be
unreasonably withheld. The Consultants shall be deemed to
have given their consent to disclosures on the expiry of the
first 6 months from the date of the settlement agreement,
arbitration award or, as the case may be, outcome of other
means of resolution of dispute. The Consultants may, if
they consider necessary to protect the sensitive nature of
certain information relating to them, request the Employer to
disclose such specified information to the said Committee
strictly on a confidential basis. If the Employer considers
that there are legitimate grounds to accede to the
Consultants’ request, the Employer shall convey the request
to the said Committee for its consideration.

(F) The Consultants shall indemnify and keep

indemnified the Employer against all loss, liabilities,
damages, costs, legal costs, professional and other expenses
of any nature whatsoever the Employer may suffer, sustain or
incur, whether direct or consequential, arising out of or in
connection with any breach by the Consultants or their
employees, agents, sub-consultants, accountants, insurers or
legal adviser of this clause.

(G) The provision of this clause shall survive the

termination of this Agreement (however occasioned) and
shall continue in full force and effect notwithstanding such
termination.

[Sub-clause E is taken from ETWB TCW No. 29/2003 and

included here for completeness and this sub-clause shall be
amended in accordance with any future revision of the ETWB
TCW No. 29/2003 as appropriate]

ETWB TCW No. 3/2004 Appendix A PageA2 of 4

 Appendix A

2 SCE 2 Replace Clause 45 of the General

Conditions of Employment by the following clause:

Prevention of The Consultants shall prohibit their

bribery employees, agents and sub-consultants who are involved
in this Assignment from offering, soliciting or accepting
any advantage as defined in the Prevention of Bribery
Ordinance, Cap 201. The Consultants shall also caution
their employees, agents and sub-consultants against
soliciting or accepting any excessive hospitality,
entertainment or inducements which would impair their
impartiality in relation to the Assignment. The
Consultants shall take all necessary measures (including
by way of contractual provisions and/or providing
training workshops where appropriate) to ensure that their
employees, agents and sub-consultants are aware of the
aforesaid prohibition and will not solicit or accept any
advantages, excessive hospitality etc when conducting
business in connection with this Agreement.

3 Declaration of SCE 3 Add the following sub-clauses to the end

interest of Clause 46 sub-clause (B) of the General
Conditions of Employment:

(C) The Consultants shall require their employees,

agents and sub-consultants who are involved in this
Agreement to declare in writing to the Consultants any
conflict or potential conflict between their personal/financial
interests and their duties in connection with this Agreement.
In the event that such conflict or potential conflict is
disclosed in a declaration, the Consultants shall forthwith
take such reasonable measures as are necessary to mitigate as
far as possible or remove the conflict or potential conflict so
disclosed.

(D) The Consultants shall prohibit their employees

who are involved in this Agreement from engaging in any
work or employment other than in the performance of this
Agreement, with or without remuneration, which could
create or potentially give rise to a conflict between their
personal/financial interests and their duties in connection
with this Agreement. The Consultants shall require their
agents and sub-consultants to impose similar restriction on
their employees by way of a contractual provision.

(E) The Consultants shall take all necessary

measures (including by way of contractual provisions where
appropriate) to ensure that their employees, agents and
sub-consultants who are involved in this Agreement are

ETWB TCW No. 3/2004 Appendix A PageA3 of 4

 Appendix A
aware of the provisions under the aforesaid sub-clauses (C)
and (D).

4 Declaration of SCE 4 The Consultants shall submit a signed

ethical declaration in a form prescribed or approved by the
commitment Employer to confirm compliance with the provisions on
ethical commitment and confidentiality as stated in SCE
Clauses 1, 2 and 3 when demand is made for payment under
this Agreement at a frequency, which shall not be more
frequent than once per month, as specified by the Director's
Representative. If the Consultants fail to submit the
declaration as required, the Employer shall be entitled to
withhold payment until such declaration is submitted and the
Consultants shall not be entitled to interest in that period.

5 Acknowledgement SCE 5 The Consultants acknowledge that they have

of being notified been reminded that dishonesty, theft and corruption on their
of the ethical part or those of their employees, agents or sub-consultants
requirements who are involved in this Agreement may lead to prosecution
under, without limitation, section 9 of the Prevention and
Bribery Ordinance, Cap 201; section 17, section 18D or
section 19 of the Theft Ordinance, Cap 210 and section 161
of the Crimes Ordinance, Cap 200. These offences
commonly carry upon conviction terms of imprisonment.

Note:
Reference has been made in the above SCE clauses to the General Conditions of
Employment of Engineering and Associated Consultants. Therefore, when the
SCE clauses are incorporated into the General Conditions of Employment of
Architectural and Associated Consultants, consequential amendments may need to
be made, e.g. the numbering of sub-clauses; and the use of "Consultant" instead of
"Consultants".

ETWB TCW No. 3/2004 Appendix A PageA4 of 4

 Appendix B
Special Conditions of Contract Clauses
on Ethical Commitment by Contractors

Note: As the following Special Conditions of Contracts apply to all construction

contracts, the term "Engineer" in the clauses shall be the replaced by "Architect",
"Surveyor", "Maintenance Surveyor" or Supervising Officer" as appropriate.

Marginal
No. heading Clause
1 SCC 1 Replace sub-clause (1) of Clause 8 of the
General Conditions of Contract by the following
sub-clause:

Information not 8. (1) The Contractor shall not use or divulge, except
to be divulged for the purpose of the Contract, any information provided by
the Employer, the Engineer or the Engineer's Representative
in the Contract or in any subsequent correspondence or
documentation. Any disclosure to any person or agent or
sub-contractor for the purpose of the Contract shall be in
strict confidence and shall be on a "need to know" basis and
extend only so far as may be necessary for the purpose of
this Contract. The Contractor shall take all necessary
measures (including by way of contractual provisions where
appropriate) to ensure that information is not divulged for
purposes other than that of this Contract by such person,
agent or sub-contractor. The Contractor shall indemnify
and keep indemnified the Employer against all loss,
liabilities, damages, costs, legal costs, professional and other
expenses of any nature whatsoever the Employer may suffer,
sustain or incur, whether direct or consequential, arising out
of or in connection with any breach of the aforesaid
non-disclosure provision by the Contractor or his employees,
agents or sub-contractors.

2 SCC 2 Re-number Clause 37 [Clause 39 in case of

a term contract] of the General Conditions of
Contract as 37(1) [or 39(1) in case of a term contract]
and add the following sub-clauses at the end of the
Clause:

Ethical Commitment (2) The Contractor shall prohibit his employees,

agents, and sub-contractors who are involved in this Contract
from offering, soliciting or accepting any advantage as
defined in the Prevention of Bribery Ordinance, Cap 201
when conducting business in connection with this Contract.

(3) The Contractor shall require his employees,

agents and sub-contractors who are involved in this Contract
to declare in writing to the Contractor any conflict or
potential conflict between their personal/financial interests
ETWB TCW No. 3/2004 Appendix B PageB1 of 2
 Appendix B
and their duties in connection with this Contract. In the
event that such conflict or potential conflict is disclosed in a
declaration, the Contractor shall forthwith take such
reasonable measures as are necessary to mitigate as far as
possible or remove the conflict or potential conflict so
disclosed.

(4) The Contractor shall prohibit his employees who

are involved in this Contract from engaging in any work or
employment other than in the performance of this Contract,
with or without remuneration, which could create or
potentially give rise to a conflict between their
personal/financial interests and their duties in connection
with this Contract. The Contractor shall also require their
sub-contractors and agents to impose similar restriction on
their employees by way of a contractual provision.

(5) The Contractor shall take all necessary measures

(including by way of contractual provisions and/or providing
training workshops where appropriate) to ensure that his
employees, agents and sub-contractors are aware of the
prohibitions in this clause.

3 SCC 3 Add the following sub-clause at the end of

Clause 78 [in case of a term contract, the following
sub-clause shall be numbered (4) and added at the end
of Clause 79] of the General Conditions of Contract:

Contractor's interim (3) The Contractor shall also submit a signed

statements declaration in a form prescribed or approved by the
Employer to confirm compliance with the provisions on
ethical commitment and confidentiality as stated in SCC
Clauses 1 and 2 as part of the Contractor's interim statement
at a frequency of once every ___* months. If the
Contractor fail to submit the declaration as required, the
Employer shall be entitled to withhold payment until such
declaration is submitted and the Contractor shall not be
entitled to interest as provided for under General Conditions
of Contract Clause 79(4)(a) [Clause 81 for term contract]
in that period.

* frequency to be specified by the department.

4 Acknowledgement SCC 4 The Contractor acknowledges that he has been

of being notified reminded that dishonesty, theft and corruption on his part or
of the ethical those of his employees, agents or sub-contractor who are
requirements involved in the Contract may lead to prosecution under,
without limitation, section 9 of the Prevention and Bribery
Ordinance, Cap 201; section 17, section 18D or section 19 of
the Theft Ordinance, Cap 210 and section 161 of the Crimes
Ordinance, Cap 200. These offences commonly carry upon
conviction terms of imprisonment.
ETWB TCW No. 3/2004 Appendix B PageB2 of 2
 Appendix C

Sample Declaration Form by Consultants and Contractor

on their compliance with the ethical commitments requirements
(to be attached to the payment application/invoice submitted by the
Consultants/Contractors)

To: [Director's Representative/The Engineer for the Contract]

[Agreement/Contract] No.: ………………

Title: ……………………….

In accordance with the [Special Conditions of Employment Clause

SCE4/Special Conditions of Contract Clause SCC3], We confirm that we have complied
with the following provisions and shall ensure that our employees,
[sub-consultants/sub-contractors], agents and advisers (for consultancy agreement only)
are aware of the following provisions:

(a) Prohibiting our employees, agents and [sub-consultants/sub-contractors] who

are involved in this [Agreement/Contract] from offering, soliciting or
accepting any advantage as defined in section 2 of the Prevention of Bribery
Ordinance, Cap 201 when conducting business in connection with this
[Agreement/Contract];
(b) Requiring our employees, agents and [sub-consultants/sub-contractors] who
are involved in this [Agreement/Contract] to declare in writing to us any
conflict or potential conflict between their personal/financial interests and
their duties in connection with this [Agreement/Contract]. In the event that
a conflict or potential conflict is disclosed, we will take such reasonable
measures as are necessary to mitigate as far as possible or remove the
conflict or potential conflict so disclosed;
(c) Prohibiting our employees who are involved in this [Agreement/Contract]
from engaging in any work or employment other than in the performance of
this [Agreement/Contract], with or without remuneration, which could create
or potentially give rise to a conflict between their personal/financial interests
and their duties in connection with this [Agreement/Contract] and requiring
our [sub-consultants/ sub-contractors] to do the same;
(d) Taking all measures as necessary to protect any confidential/privileged
information or data entrusted to us by or on behalf of the Employer from
being divulged to a third party other than those allowed in this
[Agreement/Contract].

(Name of the Consultants/Contractor) ……..

(Name of the signatory) ……………………
(Position of the Signatory) …………………

[…/…] Select the appropriate one

ETWB TCW No. 3/2004 Appendix C PageC1 of 1