IR Harbans Singh K.S.

Professional & Chartered Engineer,

Arbitrator , Adjudicator.

STATUS OF DELAY & DISRUPTION

PROCEDURES IN MALAYSIA
By Ir. Harbans Singh K.S

CONTENTS

DELAY & DISRUPTION ISSUES

BACKGROUND ISSUES

CONTRACTUAL PROVISIONS

ISSUES IN PRACTICE

EFFECT OF CIPAA 2012

THE SCL PROTOCOL: STATUS

ADOPTION BY LOCAL INDUSTRY

THE WAY FORWARD

DELAY & DISRUPTION ISSUES

PRESENTLY, EMPHASIS ON DELAY ISSUES ONLY.
NOT MUCH ATTENTION PAID TO DISRUPTION MATTERS.
CONSIDERATIONS DUE TO DELAY FEATURE PRIMARILY DUE TO POLITICAL &
COMMERCIAL REASONS.
IMPACT OF OTHER INCIDENTAL MATTERS E.G. DELAY DAMAGES, LOSS &
EXPENSE, ETC.
APPROACHES AND CONSIDERATIONS DIFFER BETWEEN PRIVATE AND
PUBLIC SECTOR PROJECTS.

BACKGROUND ISSUES
LACK OF AWARENESS & PROFESSIONALISM BY PRACTITIONERS.
MOSTLY ARE THE SUBJECT OF ARBITRATION PROCEEDINGS AND
THEREFORE UNLIKELY TO BE VENTILATED IN PUBLIC.
PAUCITY OF LOCAL CASE LAW & CLEAR JUDICIAL PRONOUNCEMENTS.
VERY LITTELE LOCAL REFERENCES, AUTHORITIES, LITERATURE, ETC.
ISSUES PERTAINING TO DELAY & DISRUPTION LEFT TO EXPERTS, LAWYERS
& CLAIMS CONSULTANTS.
ABDICATION OF THEIR ROLES BY CONSTRUCTION
PROFESSIONALS/CONTRACT ADMINISTRATORS.

CONTRACTUAL PROVISIONS
IN STANDARD FORMS OF CONTRACT:
* Generally badly drafted and one-sided.
* Procedures pertaining to application, evaluation & certification tend to
be unclear, incomplete and onerous on the claimant.
* No contractual guidance on the requirements vis--vis application,
evaluation & certification.
* Too much power & leeway without effective sanctions for default given
to evaluators/certifiers.
* Issues pertaining to Disruption either not dealt with at all or merely
glossed over.
* Most comprehensive are the provisions in the PAM 2006 Forms whilst
most concise are the JKR/PWD Forms.

ISSUES IN PRACTICE
Most industry players generally ignorant and lack basic knowledge of the
subject.
Majority of Delay issues are evaluated & resolved on an impressionistic
basis with considerable arm-twisting and without a proper forensic
analysis.
Larger employers in the Public & Private Sector tend to dictate to the
Construction Professionals what should be the claimants entitlements
and the latter are reduced to mere rubber-stamping these decisions.
Often claims pertaining to delay are retrospectively handled well past
completion and even beyond the end of the Defect Liability Period and are
used as part of horse-trading to offset variations and other claims
between the parties; the Construction Professionals usually abetting the
process.

EFFECTS OF CIPAA 2012

CIPAA 2012 concerned mainly with Payment disputes that can be statutorily
adjudicated.

Can Delay & Disruption disputes be subject to adjudication under CIPAA?

* Yes, if parties agree per Section 27(2) CIPAA 2012
* Delay damages as contractually stipulated can be raised in Defence as a
set-off
* Whether Extension of Time issues can be dealt with is a moot point.

Statutory remedies/entitlements under Section 29 CIPAA 2012 to :

* Extension of Time; and
* Loss & Expense
for party in whose favour an Adjudication Decision was made if it elects to
slow-down/suspend work as permitted.

THE SCL PROTOCOL: STATUS

PROPOSAL TO INTRODUCE THE SCL PROTOCOL TO MALAYSIA.
SPECIAL COMMITTEE FORMED ABOUT 7 YEARS AGO TO COME UP WITH
RECOMMENDATIONS.

AFTER 2 MEETINGS, COMMITTEE BECAME DEFUNCT.

ATTEMPS TO REVIVE MADE ABOUT 4 YEARS AGO BUT DIED A NATURAL
DEATH WHILST STILL IN ITS INCEPTION STAGE.
NO FURTHER INITIATIVES/DEVELOPMENTS SINCE THEN TO REVIVE.

ADOPTION BY LOCAL INDUSTRY

PARTS OF THE PROTOCOL ADOPTED ON AN AD HOC BASIS BY CERTAIN
EMPLOYERS.
BESPOKE FORMS HAVE INCORPORATED CERTAIN GUDELINES (WITH
MODIFICATIONS) ON WORK PROGRAMMES, RECORDS, DELAY ANALYSIS,
ETC.
MOSTLY DONE AT THE HEAD / PRINCIPAL CONTRACT LEVEL ONLY.
ATTEMPTS FROM TIME TO TIME TO CREATE AWARENESS THROUGH
ARTICLES IN TECHNICAL JOURNALS, TALKS BY PROFESSIONAL BODIES,
REFERENCES IN LOCAL BOOKS, ETC.

NEED FOR A CONCERTED EFFORT BY A DEDICATED AND POLITICALLY

INFLUENTIAL BODY TO MOVE THINGS FORWARD.

THE WAY FORWARD

THE PROTOCOL SHOULD BE ADOPTED IN WHOLE, WITH OR WITHOUT
MODIFICATIONS TO ENHANCE PROFESSIONALISM & GOOD GOVERNANCE.
PROVISIONS IN ALL CONTRACTS TO BE STREAMLINED TO BE IN TANDEM
WITH THE PROTOCOL.
BETTER EDUCATION BEYOND MERE AWARENESS IN VARIES FACETS OF THE
ISSUES FOR ALL INDUSTRY PRACTITIONERS.
PROPER ACCREDITION FOR CONSTRUCTION PROFESSIONAL HANDLING
SUCH ISSUES/CLAIMS TO ENSURE PROPER LEVEL OF COMPETENCE.
MORE PUBLICITY AND INFORMANATION DISSEMINATION TO ALL LEVELS
OF THE CONTRUCTION CHAIN FROM THE LOWEST TO THE HIGHEST
STRATA.
REINFORCEMENT OF THE POLITICAL & PROFESSIONAL WILL TOWARDS
ERADICATING THE ILL-EFFECTS OF DELAYED AND MAL-ADMINISTERED
CONTRACTS TO AVOID/CURTAIL SERIOUS SOCIAL, POLITICAL AND
COMMERCIAL RAMIFICATIONS.

THANK YOU