PWD 203 A (43.1 a) Force majeure (43.1 b) Exceptionally inclement weather (43.1 c) Suspension of works (43.1 d) Directions regarding disputes with neighbours (43.1 e) S.O’s instructions (43.1 f) Contractor not receiving instruction on time
PAM 2006 (23.8 a) Force majeure (23.8 b) Exceptionally inclement weather (23.8 c) Insurances contingencies (23.8 d) Civil commotion, strike or lockout (23.8 e) Late receipt architect’s instructions (23.8 f) Deferment
(43.1 g) Delay in giving site possession (43.1 h) Delay in executing work by others (43.1 i) Delay in securing materials for the works (43.1 j) Delay by the nominated sub-contractors
(23.8 g) Compliance with architect instructions (23.8 h) Nominated sub- contractor’s delay (23.8 i) Delay in re-nomination (23.8 j) D elay by employer’s licensees (23.8 k) E mployer’s delay or failure to supply material and goods (23.8 l) Opening up for inspection and testing (23.8 m) Any act of preventation or breach of contract by the employer (23.8 n) War damages (23.8 o) Discovery of antiquities (23.8 p)Changes to law/term of authority/services provider (23.8 q) Delay caused by an appropriate authority etc (23.8 r) Appointment of replacement person (23.8 s) Dispute with neighbouring (23.8 t) Delay as a result of execution of work for which a provisional quantity is included in the BQ etc (23.8 u) Failure of the employer to give in due time entry to or exit from site etc (23.8 v) Suspension by the contractor (23.8 w) Suspension by order of an appropriate authority (23.8 x) Any other ground for extension of time expressly stated in the contract
1
Procedure for the E.O.T entitlement in the PAM Contract 2006
• Architect Instruction
Step 1
Step 2 (28days)
• Contractor shall give the architect first notice • Causes of delay • Length of estimate delays • Support document
• Contractor shall give the second notice ( to confirm on the delay )
Step 3
Step 4
• Architect inform the contractors if the info given was insufficient
(28days)
Step 5
• Contractor replies to provide more sufficient info
(28days)
Step 6
• Architect consider the E.O.T entitlement
( 6 weeks)
2
Procedure for the E.O.T entitlement in the PAM Contract 2006
Event 1) Architect instruction (ie : variation order) 2) Last day contractor to notify the employer (23.1.a) 3) Actual work ceases the delay 4) Last day to submit the claim (23.1.b ) 5) Time frame to seek further info (23.3) 6) Time frame to submit further particular (23.3 ) 7) Time frame to consider E.O.T ( 23.4 ) 8) If sufficient document are incopareted, E.O.T can be given
Timeline 1.1.2012 28.1.2012 28 days 28.2.2012 25.3.2012 28 days 25.4.2012 28 days 20.5.2012 28 days 7.7.2012 6 weeks 6.5.2012 6 weeks (only if sufficient document,after step 4 can continue to rewarded of E.O.T)
3
PAM 2006 Ground
Explanation
(23.8 a) Force majeure
Architect empower extend of time if the contractor delayed by force majeure A very brief definition for force majeure is, “irresistible compulsion or coercion” (Mozley & Whiteley’s Law Dictionary, 1977). Chow Kok Fong defines force majeure : An unforeseeable event beyond the control of any of the parties in the contract, the effect is to release the parties from performing obligation under the contract Lebaupin v Crispin (1920) McCardie, J. stated that : “This term is used with reference to all circumstances, independent of the will of man, and which it is not in his power to control….”. Lebaupin v Crispin (1920) McCardie, J. further stated that, any direct legislative or administrative interference would come within the term: for example, an embargo. In the case of Matsaukis v Priestman & Co . (1915), the dislocation of business caused by the general coal strike and breakdown of machinery are instances of force majeure In Berney v Tronoh Mines Ltd . (1949), the contract of service of the plaintiff was discharged by frustration due to Japanese invasion in Malaya and the court ruled that there was no breach of contract by the defendants. The event of Japanese invasion is an example of force majeure This clause should be construed and interpreted in strict rule of interpretation in order to extract it true intention. The effect to the parties involve is usually in “ no one loose ” situation, but once it happened, it is the sad ending to the parties as far as the performance of the contract is concerned.
4
(23.8 b) Exceptionally inclement weather
(23.8 c) Insurances contingencies
The general rule is the effect that adverse weather itself does not give any ground for the non- performance of the contractor’s obligation under the contract, unless there is a provision in the contract offering this ground. Maryon v Carter (1830 ) where a pavement was to be laid in certain date. Due to bad weather the contractor did not complete on time and forfeited his right to payment. The contractor need to take all r isk causes by weather, no E.O.T rewarded. Example of adverse weather is monsoon, tsunami, storm Sundra Rajoo stated that: The validity of the contractor claim is usually checked against the site weather records as contained in the site diary and Malaysia Meteorological Department records. By comparing the r ecords over period of time it may be demonstrated whether or not exceptionally inclement weather has been experienced for the project. It is suggested that complaint of exceptionally inclement weather is valid in a relevant period if it substantially exceeds the Malaysian Meteorological Department 20 years average for that period and area If there is no report from Malaysian Meteorological Department , other third party can be used such as report form Drainage and Irrigation Department This ground deals with i nsurance contingencies which causes loses and damage to the work i tself and entitled the contactor to get E.O.T Such contingencies included peril or insurable risks such as fire, storm, lighting, flood, which generally related to neutral event beyond the control of the employer and the contractor.
5
(23.8 d) Civil commotion, strike or lockout
(23.8 e) L ate receipt architect’s instructions
(23.8 f) Deferment
Civil commotion means a phrase used to described a situation which is
more serious than a riot but not as serious as Civil War, defined by Chappell,Building Contract Dictionary Strike means a concerted act to cease work b y employees or workmen as organized protest in connection with trade dispute, usually for better terms and conditions of employment, defined by Chow Kok Fong, Construction Contract Dictionary Lockout means the closing of a place of employment or suspension of work, or the refusal by the employer to continue employ, defined by Curzon ,A Dictionary of Law In applying this provision, the fo llowing prudent must be taken into consideration : 1. The actual event must be examined in detail before it is applied or assessed 2. This clauses applied in two kind of trades, examples those employed upon the works and those engaged in the preparation, manufacturer or transportation of any materials and goods required for the works 3. Does not cover in direct effect like in the case of Boskalis Westminster Construction Ltd v Liverpool City Council (1983) 4. Cover not only the contractor own workforce but also generally those belonging to all sub-contractors involved in the preparation, manufacture or transportation activities 5. The contractor and his nominated sub-contractor are culpable, example they are direct or indirect cause of the occurrence of the relevant event in question due to any unreasonable act, neglect or default on their part. Eg, failure to pay,bad employee relationship 6. There appear to be no pre-conditions attached to the exercise of the said relevant event, commonly found in some local contemporary forms For this event to be applicable, the contractor must show, inter alia, that the Completion Date is likely to be delayed because the architect failed to comply with his specific obligation to meet the information release schedule/issuance of AI The event can be considered to be an act of preventation and in practice,it is a relatively common ground for the contractor to seek an extension of time To address the time impact of any delay by the employer in giving to the contractor possession of the whole site or section If in the contract contains an ex press term allowing contractor to be given a commensurate extension of time to compensate him for the delay caused by deferment or postponement, the effect would be that the completion date would become at large and employer would lose his right to impose the liquidated damages. This ground to cater for the architect power to extend the contract completion period consequent to his power to postpone the giving of site possession pursuant In this event it only reference to a delay in giving possession of site only not mention whatsoever made to the aspect of access to the site which 6
(23.8 g) Compliance with architect instructions
(23.8 h) Nominated sub- contractor’s delay (23.8 i) Delay in re-nomination (23.8 j) D elay by employer’s licensees (23.8 k) Employer’s delay or failure to supply material and goods (23.8 l) Opening up f or inspection and testing (23.8 m) Any act of preventation or breach of contract by the employer (23.8 n) War damages (23.8 o) Discovery of antiquities (23.8 p)Changes to law/term of authority/services provider (23.8 q) Delay caused by an appropriate authority etc (23.8 r) Appointment of replacement person (23.8 s) Dispute with neighbouring (23.8 t) Delay as a result of execution of work for which a provisional quantity is included in the BQ etc (23.8 u) failure of the employer to give in due time entry to or exit from site etc (23.8 v) Suspension by the contractor (23.8 w) Suspension by order of an appropriate authority (23.8 x) any other ground for extension of time expressly stated in the contract
directly or indirect has a profound effect on the contractor obligation to commence with and proceed with the wo rks under the contract. Brian Eggleston stated that question whether or not failure by the employer to give site possession of site it depend on the wording in the contract, the employer does not need to make clear intentions. This ground is a reimbursable act of preventation Brian Egglesto, stated that Express terms giving the contract supervisors power to make orders and instructions. Contract administrator are responsible in giving the clear i ntentions. Simplex Concrete Piles Ltd v St Pancras Borough Council (1958) , held that the contractor entitled to a compensable variation notwithstanding that is resulted from the breach on the part of the contractor. The contractor is entitled to an extension of time if the Architect Instruction ( AI), that fall under the instant relevant event, which are ; a) Clause 1.4 : Discrepancy or divergence between document b) Clause 11.2 : No variations required by the Architect shall vitiate contract c) Clause 21.4 : Postponement or suspension of the works This instant relevant event is an act of prevention. This used in the Holland Hannen & Cubbits (Northern) Ltd v Welsh Health Technical Services Organisation (1981)
7
8
http://www.hbp.usm.my/aziz/FORCE%20MAJEURE.htm http://eprints.utm.my/12404/1/NorAzizanMuhamedMFAB2009.pdf http://eprints.utm.my/11348/1/LimChengSimMFAB2007.pdf http://ckoon-law.com/Paper/EXTENSION%20OF%20TIME%20AND%20LIQUIDATED%20DAMAGES.pdf
9
