PSSCOC For Constn WRK 2005 - A Commentary - Philip Chan

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Philip Chan Chuen Fye
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Public Sector Standard

Conditions of Contract for
Construction W orks 2005
A Commentary
Philip Chan Chuen Fye

Dip Bldg (Sing), LLB (Hons) (Lond), LLM (Lond), PhD (Lond), Dip Ed (Lond)
FSIArb
Barrister-at-law (Middle Temple)
Advocate and Solicitor of the Supreme Court of Singapore
Associate Professor,
Deputy Head (Administration and Finance), Programme Director of the Joint
King's College London - NUS MSc in Construction Law and Dispute
Resolution, Co-Director of the Centre for Project Management and
Construction Law,
Department of Building, School of Design and Environment,
National University of Singapore
Deputy President, Singapore Strata Titles Board
1
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2006
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Foreword to PSSCOC 2005
LexisNCXIS
2006
All right~ reserved No pan of this publication may be reproduced. or transmitted in

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excludes liability for loss suffered by any person resulting many way from the u>e
of. or reliance on. this publication.
It is with great pleasure that I write another foreword to an excellent

commentary by Professor Philip Chan to the most recent edition of the
Public Sector Standard Conditions of Contract. I have followed the
development of these conditions with some interest since I first
encountered them during their evolution in the early 1990's. They were a
model in many respects. The consultations that led to these principles
being clearly established and carried into effect in lucid drafting owed
much to the extensive and thorough consultations that had taken place
with all those in the industry likely to be affected by its use. Secondly,
they were then (and must still be) regarded as 'state of the art'. They
endeavoured to reflect the best practice in public works as they strike a
reasonably even balance between the demands of the public sector and
the requirements of those who serve it. Provided that the allocation of risk
and responsibility is clear and can be priced for, it may not matter if in the
public sector more is demanded from a contractor than might be the case
in the private sector (although the private sector has its own examples of
provisions which verge on the leonine). Singapore has a deserved
reputation for endeavouring to ascertain what is happening elsewhere in
the world and for applying it, judiciously. to its own circumstances. The
PSSCOC provides another instance of the success of this policy.
Now we have a second edition prompted in part by the Building and
Construction Industry Security of Payment Act 2004 but also stemming
from provisions made in 1999 and 2004 and some other changes such as
those affecting joint and several liability, day works and mediation.
Professor Philip Chan's commentary is notable. It provides, as one has
been led to expect from Professor Chan's many other works, a full guide
to the terms of the PSSCOC and their implications. The implications are
equally to be found in the law which provides the background against
which the PSSCOC has been drafted. Thus this commentary is more than
a mere account and exposition of the text. It encapsulates excellent
guidance to many of the ba<;ic principles affecting the interpretation and
application of contracts in the construction industry, not only in
Singapore but elsewhere. Like the PSSCOC, the commentary is of course
up to date and takes account of recent relevant decisions. Understandably,
it has not been possible to illuminate the commentary on the latest
iii
Foreword 10 PSSCOC 2005
amendments with references to decisions in other jurisdictions since the

Building and Construction Industry Security of Payment Act 2004, whilst
drawing on experience elsewhere, prudentl y devised a scheme suitable
for the construction industry in Singapore a nd, as such, stands by itself as
a model which, hopefully, others will examine with care. At the time of
writing, the United Kingdom Government is presently considering
amendments to the Act which provide a degree of security of payment for
the construction industry in the United Kingdom and a useful step
towards speedy and cost-effective dispute resolution, by way of
compulsory adjudication for most, but not all, sectors of the industry.
However, in the course of the consultations and discussions, too little
reference has been made to the experience in other countries where
initiatives in the United Kingdom has been followed. I trust that with this
admirable commentary, more attention will be paid to the considered and
measured approach of Singapore not only in its legislation but also in its
public works contracts. I therefore have no hesitation in commending this
work and congratulating its author on its production which has well
justified the time and effort that must have been taken to achieve it.
His Honour Humphrey LLoyd QC

Atkin Chambers
Atkin Building
Gray's lnn
London WC IR SAT
United Kingdom
March 2006
IV
My introduction to the Public Sector Standard Conditions of Contract

(PSSCOC) came when I was asked to help with its drafting. The version
presented was largely very clear and intelligible. I was therefore a little
puzzled as to why I was consulted. Nevertheless, as hardly any draft can
be perfect, I made a number of proposals which I thought were modest
improvements. The discussions led to a meeting in Singapore during the
course of which many of my proposals were very politely and tactfully
shown to be misconceived or not acceptable. They were therefore
withdrawn or modified. It thus became clear to me how ambitious and
successful the project had been.
There are few countries in which there are alternative conditions of
contract. Indeed some conditions appear to compete with each other.
Other differences arc explicable. Where United Kingdom practice is
adopted the conditions tend to follow the profession that is dominant:
building works (where architects are involved) have the ir conditions and
the engineering professions have generated a variety of conditions. On
the other hand in most countries a distinction is regularly made between
public works and works in and for the private sector so, whatever the
nature of the works, a separate regime applies. (In some countries this is
of course a matter of law rather than of practice.) In Singapore these
differences were reflected in the forms of contract used by the Public
Works Department, the Housing and Development Board, and the Mass
Rapid Transit Corporation. Yet practice also diverged. For example, the
approaches to measurement and val uation and the use and creation of
rates were not the same; it will be fo r others co confirm that historically
they originate from the nature of the work, the risks traditionally assumed
and the profession involved, rather than fro m the forms of contract. No
doubt some interaction played a part. So the task undertaken by the
Construction Industry Development Board was a formidable one. It was
not merely to meld contract conditions but to do so in a way that did not
create unacceptable changes in contractual, professional, a nd
departmental practice. Harmonising the latter might at times prove to be
as intractable as any other objective. Being unaware of much of what had
taken place J found that some of my changes would, if pressed, have
reopened old debates and upset comprorruses that had been de licately and
painstakingly attained. As frequently occurs the ideal has to cede place to

pragmatism.
I therefore appreciated how much had been achieved by the CIDB and
its working party. Not only had they produced an admirable set of
conditions that were obviously suited for virtually all situations that
might be found in the public sector in Singapore but they had also
pro~uced conditions which would be acceptable administratively,
particularly by the use of the concept of a Core Module of conditions.
They had inevitably to grapple with some of the problems that affect
construction work throughout the world, notably in the definition and
compilation of price and in the allocation of risk. The conditions, whilst
naturally prepared for domestic contracts, had also to be acceptable to
foreign contractors who might wish to tender for the largest projects or
those which called for special skills not readily available locally on a
competitive basis.
My role in assisting the CIDB came to an end in 1993 when I became a
judge. The conditions in their final form were published in 1995. They
were revised by the Building and Construction Authority and republished in their present form in 1999. They have evidently been
successful in achieving the objectives set for them.
Their success may also be measured by the fact that they have led to
this work. I have been honoured to be invited lo write a Foreword to what
is a thorough commentary which I am sure will prove to be invaluable to
e~erybody who may work with the PSSCOC. Readers will rapidly
discover that Professor Chan and Dr Leong have brought informed and
perceptive eyes to the Conditions and that their exposition is both clear
and comprehensive.
The authors take one through the conditions in considerable detail with
numerous helpful cross-references which are essential to any discussion
of contractual conditions. They do not however attempt to refer to
decided cases except where they are likely to be particularly pertinent,
such as decisions in Singapore. This is a wise decision and is an
additional mark of success. Conditions of contract should be both selfcontained and self-evident. They are documents which have to be used in
the field and they have to be capable of being understood by a variety of
people. Their provisions should not need to be explained by recourse to
j~dg~ent~ of the courts: especially where the decision is really of
h1stoncal interest only as 1t was about a type of contract and by a court in
a different jurisdiction. Unearthing such a law is best left to those
occasions when the parties arc unable to resolve their differences
amicably. If the contract conditions provide a sound framework for the
definition and regulation of the relationships between the parties and their
represe~tatives .or advisers such occasions should be few. Experience in
the United Kingdom of a comparably innovative contract - the
Engineering and Construction Contract - bears this out.
Yet. th~ value of this work should not be confined in Singapore. As I
have indicated others have much to learn from the conception and
vi
implementation of the PSSCOC. This work should reach a wider

audience, b~th as a first-class example of an informative exposition and
as an advertisement for the PSSCOC. The journal of which I am an editor
has. had a numb~r of articles (some, happily, by the present authors)
which reveal the mventive role of Singapore in construction law matters.
'Where Singapore leads others will follow This excellent work not only
charts the ground-breaking story of the PSSCOC but convincingly
demonstrates their success and why PSSCOC should be examined with
care by any other body as interested and as determined as the CIDB (now
the BCA) to rationalise contractual conditions and practice.
Humphrey LLoyd
The Technology and Construction Court
High Court of Justice
London
vii
amendments with references to decisions in other jurisdictions since the

Building and Construction Industry Security of Payment Act 2004, whilst
drawing on experience elsewhere, prudently devised a scheme suitable
for the construction industry in Singapore and. as such. stands by itself as
a model which. hopefully, others will examine with care. At the time of
writing. the United Kingdom Government is presently considering
amendments to the Act which provide a degree of security of payment for
the construction industry in the United Kingdom and a useful step
towards speedy and cost-effective dispute resolution, by way of
compulsory adjudication for most. but not all, sectors of the industry.
However, in the course of the consultations and discussions, too little
reference has been made to the experience in other countries where
initiatives in the United Kingdom has been followed. l trust that with this
admirable commentary, more attention will be paid to the considered and
measured approach of Singapore not only in its legislation but also in its
public works contracts. I therefore have no hesitation in commending this
work and congratulating its author on its production which has well
justified the time and effort that must have been taken to achieve it.
His Honour Humphrey LLoyd QC

Atkin Chambers
Atkin Building
Gray's Inn
London WC IR SAT
United Kingdom
March 2006
IV
My introduction to the Public Sector Standard Conditions of Contract

(PSSCOC) came when I was asked to help with its drafting. The version
presented was largely very clear and intelligible. I was therefore a little
puzzled as to why l was consulted. Nevertheless, as hardly any draft can
be perfect, [ made a number of proposals which I thought were modest
improvements. The discussions led to a meeting in Singapore during the
course of which many of my proposals were very politely and tactfully
shown to be misconceived or not acceptable. They were therefore
withdrawn or modified. lt thus became clear to me how ambitious and
successful the project had been.
There are few countries in which there are alternative conditions of
contract. Indeed some conditions appear to compete with each other.
Other differences are explicable. Where United Kingdom practice is
adopted the conditions tend to follow the profession that is dominant:
building works (where architects are involved) have their conditions and
the engineering professions have generated a variety of conditions. On
the other hand in most countries a distinction is regularly made between
public works and works in and for the private sector so, whatever the
nature of the works, a separate regime applies. (In some countries this is
of course a matter of law rather than of practice.) In Singapore these
differences were reflected in the forms of contract used by the Public
Works Department, the Housing and Development Board, and the Mass
Rapid Transit Corporation. Yet practice also diverged. For example, the
approaches to measurement and valuation and the use and creation of
rates were not the same; it will be for others to confirm that historically
they originate from the nature of the work. the risks traditionally assumed
and the profession involved, rather than from the forms of contract. No
doubt some interaction played a part. So the task undertaken by the
Construction Industry Development Board was a formidable one. It was
not merely to meld contract conditions but to do so in a way that did not
create unacceptable changes in contractual. professional, and
departmental practice. Harmonising the latter might at times prove to be
as intractable as any other objective. Being unaware of much of what had
taken place [ found that some of my changes would, if pressed, have
reopened old debates and upset compromises that had been delicately and
v
Preface to PSSCOC 2005
This edition was to have made its appearance a year earlier to capture the
amendments made by the 2004 edition. As there was word of the
impending enactment of the Building and Construction Industry Security
of Payment Act 2004 (SOP Act), the publication of the second edition of
this book was held back as it was envisaged that there would be
'consequential' amendments made to the PSSCOC arising from the
provisions of the SOP Act.
By the time a decision was taken ro produce the new edition, my coauthor, Christopher, had become unavailable. He had earlier left the
University for the private sector. It was left to me to do a solo job. There
is a change in the format of the book. After the introduction, l had moved
the chapters around to reflect more accurately the sequence of the two
documents of the PSSCOC, that i~. the main document and the
Supplement. found as soft copies in the homepage of the Building and
Construction Authority. A decision was taken to remove the chapter
numbers to avoid the possible confusion between the chapter number and
clause number.
The format within each clause has remained unchanged to indicate the
intention of the clause followed by the parties obligations and liabilities
as well as rights and remedies, the role of the Superintending Officer
(SO) and other parties where relevant and the cross references. Most of
the clauses now have a longer discussion on the general principles
applicable as well as the intention of the clause. Changes made by the
2004 and 2005 editions are indicated in the clause under discussion
where relevant.
The bulk of the amendments are found in Clauses 32 and 34. The main
task of the drafters of the 2005 edition appears to be to incorporate
changes that integrate the contractual payment scheme as well as the
dispute resolution scheme with that provided b) the SOP Act. It appears
to be the intention of the drafters to put the parties to the contract on the
road to adjudication since the application for payment by the contractor
has been changed so that the contractor initiates the statutory payment
scheme that leads to the statutory adjudication process by having to put in
a Payment Claim as against a monthly statement used in the earlier
editions. If that be so, I humbly submit that a more appropriate approach
IX
Contents
Page
Foreword to the PSSCOC 2005

Foreword ro the PSSCOC 1999
Preface ro rhe PSSCOC 2005
Preface ro the PSSCOC 1999
Table of Cases
Table of Legislation
f
f
f
,/
111
ix
xi
xv
xvii
Introduction to the Public Sector Standard Conditions of Contract

(PSSCOC)
Clause I
Definitions and Interpretation
Clause 2
Superintending Officer and Superintending Officer's
Representative
Clause 3
Contract Documents
Clause 4
General Obligations of the Contractor
Sub-surface and Ground Conditions
Clause 5
Clause 6
Permanent Works Designed by the Contractor
Clause 7
Notices and Fees
Clause 8
~q~
Clause 9
Programme for the Works
Quality in Construction
Clause 10
Clause 11
Administration
Clause 12
Possession of Sne and Commencement of Works
Clause 13
Suspension
Clause 14
Time for Completion
Clause 15
Expediting Progress of Works
Clause 16
Liquidated Damages
Clause 17
SubMantial Completion
Defects
Clause 18
Clause 19
Variations to lhe Works
Clause 20
Valuation of Variations
Measurement
Clause 21
Clause 22
Claims for Loss and Expense
Clause 23
Procedure for Claims
Construction Equipment, Temporary Works,
Clause 24
Materials and Goods
General Responsibilities
C lause 25
C lause 26
Indemnity Provisions
xiii
I
11
25
31
37
47
53
59
~
65
7J
83
87
95
99
I 09
113
121
127
133
139
J 45
149
l 53
159
167
173
Contents
Clause 27
Clause 28
Clause 29
Clause 30
Clause 31
Clause 32
Clause 33
Clause 34
Clause 35
Clause 36
Option Modules
Supplement
Insurance for Personal Injury, Workmen 's Compensation

and Property Damage
Insurance of the Works
Damage to Property of Employer or Government
Assignment and Subcontracting
Termination by the Employer
Progress Payments and Final Account
Final Completion Certificate
SenJement of Disputes
Recovery by the Employer
Governing Law and Notices
179
183
189
195
201
215
237
241
253
255
263
269
277
Index
Table of Cases
Adelphi (Eslales) Ltd v Christie (1984) 269 EG 221 ...................................................... 11

Afovos, The; Afovos Shipping Co SA v Pagnan (R) & (F) Lli
[1983) l All ER 449 ................................................................................................. 202
Alderslade v Hendon Laundry [1945) KB 189 ............................................................... 173
Annar, The: Annar Shipping v Caisse Algerienne d' Assurance et de Reassurance
(1981] l All ER498 ................................................................................................. 255
Baese Pty Ltd v RA Bracken Building Pty Ltd ( 1989) 52 BLR 130 .............................. 114
Balfour Beatty Building Ltd v Chestermount Properties Ltd (1993) 62 BLR 1.. ........... 115
Beihai Zingong Property Development Co & Anor v Ng Choon Meng
(1999] 2 SLR 283 ...................................................................................................... 113
Bennett & White (Calgary) Ld v Municipal District of Sugar City No 5
[ 1951) AC 786 .......................................................................................................... 160
Bramall & Ogden Ltd v Sheffield City Council (1983) 29 BLR 73 ............................... 115
Brown v Bateman 1867 LR 2 CP 272 ........... ....... . . ................................................... 161
Blake v Izard 16 WR 108 .........................................
161
Building Estate Ltd v AM Conner [ 1958] MU 173 ...................................................... 215
Central Provident Fund Board v Ho Bok Kee (t/a Ho Bok Kee General Contractor)
(1981) 17 BLR 21 ...................................................................................................... 256
Coop International Pte Ltd v Ebel SA [ 19981 3 SLR 670 .............................................. 242
D & F Estates Ltd & Or.> v The Church Commissioners for England & Ors
( 1988) 41 BLR I ............... ..... ... ... .......... ... ...... .... ..................................................... I89
Davies v Collins (1945] I All ER 247 ............................................................................ 195
Dawber Will iamson Roofing Ltd v Humberside County Council
..................................................... 160
(1979) 14 BLR 70................................... ... .. ..
Doag Yuan Hang Trading Pte Ltd v Sunko (Singapore) Co Pte Ltd
[1994) 3 SLR 603 ......................................... ... ..................................................... 201
Dunlop Pneumatic Tyre Co v New Garage & Motor Co [ 191 5] AC 79 ......................... 113
East Ham Corp v Bernard Sunley & Sons (1966) AC 406 ............................................. 216
Engineenng Construction Pte Ltd v A-G (1994] I SLR 687 ......................................... 202
Ericksson v Whalley [197 1] I NSWLR 397 ................................................................... 256
Forslind v Bechely-Crundall 1922 SC (IIL) 173 ............................................................ 20 1
Gebrueder Buehler AG v Peter Chi Man Kwong & Ors [ 1988) 2 MU 69 ................... 159
George and Lhe Goldsmiths and General Burglary Insurance Association Ltd. Re
(1899) I QB 595.............................. .... ........ ...................................................... 11
George Hawkins v Chrysler (UK) Ltd and Burne Associates (a firm)
(1 986) 38 BLR 36..........................................
............................. ....
. ............ 53
Gilbert-Ash (Northern) Ltd v Modem Engineering (Bristol) Ltd [1974] AC 689 ......... 2 17
Glenlion Construction Ltd v The Guinness Trust ( 1987) 11 Con LR 126 ....................... 65
Hancock v Brazier [ 1966] I WLR 1317 ....................................................................... 128
Han v Ponhgain Harbour Co Ltd [ 1903] I Ch 690 ........................................................ 161
co
\~
xiv
xv
Table of Cases
Hiap Hong & Co Pte Ltd v I long Huat Development Co (Pie) Ltd
[2001] 2SLR 458 .................................................................................................... 215
Hobson v Gorringe [ 1897] I Ch 182.................................................. .......................... 160
Hoenig v Issacs [1952) 2 All ER 176 ........................................................................... 2 15
Holland v Hodgson ( 1872) LR 7 CP 328 ................................................................... . 159
HW Nevill (Sunblest) Ltd v William Press & Son Ltd ( 1982) 20 BLR 78 .................... 127
IBAvEM1[1980] 14BLR 1........................................................................................... 53
Independent Broadcasting Authority v EMI Electronics Ltd and
BICC Construction Ltd (1980) 14 BLR 1.................................................................. 53
Iran Vojdan, The; Dubai Electricity Co v Islamic Republic of Iran Shipping Lines
[ 1984] 2 Lloyd's Rep 380 ....................................... ........ ............ .. ......................... 255
James Miller and Partners Ltd v Whitworth Street Estates (Manchester) Ltd
[ 1970] AC 583: [ 1970] I All ER 796 ........................................................................ 255
Kassim Syed Ali & Ors v Grace Development Pte Ltd & Anor [ 19981 2 SLR 393 ...... I 14
Keen&Keen, lnre [l902] l KB555 ............................................................................. 161
Kredietbank NV v Sinotani Pacific Pte Ltd (Agricultural Bank of China. third party)
[ 1999] 3 SLR 288 ...................................................................................................... 255
Lamprell v Billericay Union ( 1849) 3 Exch 283 ............................................................ I 00
Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd (1993] 3 All ER 417 ......... 196
Lokc Hong Kee (SJ Pte Ltd v United Overseas Land Ltd ( 1982) 23 BLR 35 ................. 38
Lucas v Godwin ( I 837) 3 Bing NC 744 ......................................................................... I00
Management Corporation Strata Title Plan No 1166 v Chubb Singapore Pte Ltd
(1999) 3 SLR 540 .................................................................................................. 38, 7 1
Nanfri, The: Federal Commerce and Navigation Ltd v Molena Alpha Inc & Ors
[ 1979] I All ER 307 ................................................................................................. 202
Peak Construction (Liverpool) Ltd v McKinney Foundations Ltd ( 1970) 1 BLR I 14 .. 100
People's Park Chinatown Development Pte Ltd v Schindler Lifts (S) Pte Ltd
[1993] I SLR 59 1...................................................................................................... 160
Penni Corporation v Commonwealth of Australia ( 1969) 12 BLR 82 .......................... 216
Raymond Construction Pte Ltd v Low Yang Tong & Anor ( 1998) 14 Const LJ 136 .... 128
Reeves v Barlow (1884) 12 QBD 436 ............................................................................ 161
Royal Design Studio Pte Ltd v Chang Development Pte Ltd ( 1991] 2 MU 229 ............ 88
Samuels v Davis [ 1943] KB 526 ...................................................................................... 53
San International Pte Ltd (fka San Ho Huat Construction Pte Ltd) v
Keppel Engineering Pte Ltd ( 1998] 3 SLR 871 ........................................................ 201
Sapiahtoon v Lim Siew Hui (1953] MLJ 305 ............................................................... 215
Seath & Co v Moore ( 1886) 11 App Cas 350 ................................................................ t 60
Shaikh Faisal t/a Gibca v Swan Hunter Singapore Ptc Ltd [ 1995) I SLR 394 .............. 255
Sutcliffe v Thackrah (1974) 4 BLR 16 .................. .. .................................................. 25
Teknikal dan Kejuruteraan Pte Ltd v Resources Development Corp (Pte) Ltd
[ 1994] 3 SLR 743 ........................................................................................................ 87
Temloc Ltd v Erill Properties Ltd ( 1987) 39 BLR 30 ................................................... 114
Tolhurst v Associated Portland Cement Manufacturers Ltd [ 1902] 2 KB 660 .............. 197
W Hanson (Harrow) Ltd v Rapid Civil Engineering Ltd and
Usbome Developments Ltd (1987) 38 BLR 106 ................................................... 160
Williams v Fitzmaurice (1858) 3 H & N 844 ................................................................. 134
Winter, In re ( 1878) 8 Ch D 225 ..................................................................................... 161
xvi
Table of Legislation
Statutes
Contracts (Rights of Third Parties) Act

............ 256, 258. 259. 260
s 2(2) ............................................. 256
Factones Act (Cap 29, 1999 Ed) ........... 59
International Arbitration Act
(Cap 143A. 1995 Ed) ..................... 242
s 5.......... . ........................... 24 2. 257
s 15 .............................................. 242
Sale of Goods (United Nations
Convention) Act (Cap 283A) ......... 256
s 4 .................................................. 256
Unfair Contract Terms Act (Cap 396)
sl3(1) ......................................... 153
Arbitration Act
(Cap 10. 1985 Ed) .......... 241. 243, 249
s 2 ................................................... 257
Building and Construction Industry
Security of Payment Act 2004 ...... 8, 9,
20, 215, 223. 227.
228, 231,232,233.
241,244.245.246.
248,250.259.263
s 2................................ 13. 18, 20, 2 18.
219 ,220,223
s 8(5) .......................... 13. 19, 219. 223
s 10(1) .............................................. 19
s 10(3) ............................................ 230
s 10(3)(a) ......................................... 19
s 10(3)(b) ................................. 19. 2 19
s 11 ................................................. 220
s 11(1) .............................................. 20
s 12(4) .............................................. 20
s 36........................ 2 18. 220, 232. 233
s 36(2)(a) ............................. 13. 19, 20
Building Control Act
(Cap 104. 1998 Ed) ......................... 59
Civil Law Act
s 4(8) .............................................. 196
Subsidiary Legislation
Building and Construction Industry
Security of Payment Regulations
2005 ............................................... 19
reg 5 .............................................. 219
Building Control Regulations ............... 59
Factories (Building Operations and
Works of Engineering Construction)
Regulauons ...................................... 59
XVII
Introduction to the Public Sector Standard

Conditions of Contract (PSSCOC)
Background and Development of the PSSCOC

The development of the PSSCOC has been documented in the
Construction Industry Development Board (CIDB) 1 Explanatory Notes2
for the proposed Conditions first issued in August 1990. As the only
available published record of its background and development, it is
instructive in this introductory section to draw the salient features from
the relevant portions of this document.
Arising from a CJDB report on construction competitiveness 3 in 1989
which recommended standardisation of contract documentation as one
way of raising the productivity of the industry, and from industry
allegations that public sector contracts were drafted in an unbalanced
manner, a working committee under the leadership of the CIDB was
formed in 1989 to develop a common fom1 of contract which could be
used across all public sector projects.
After much work and consultations with major government
departments and statutory bodies, the new form was introduced in 1995.
It has since April 1995 been used by the Public Works Department
(PWD), and since September 1995 by the Housing & Development
Board (HDB).
Contribution to the Drafting of the PSSCOC

The initial framework of the Standard Conditions was developed with
representations from:
2
3
The current role is now undenaken by the Building and Construction Authority
(BCA).
Construction Industry Development Board (l 990). Explanatory Notes for Conditions
of Co111ract for Construction Works, CIDB, Singapore.
Construction Industry Development Board ( 1989), Cost Competitiveness of the
Construction Industry in Singapore.CIDB. Singapore.
Public Sector Standard Conditions of Contract for Construction Works 2005
(I)
(2)
(3)
(4)
(5)
Construction Industry Development Board;

Public Works Department;4
Mass Rapid Transit Corporation: 5
Singapore Contractors Association Limited: and
Wong Partnership.
difficulties encountered in the local construction industry. For a relatively

small industry, the plethora of forms was deemed excessive and
undesirable:
The initial draft received valuable feedback from the following

organisations:
(I)
(2)
(3)
(4)
(5)
(6)
(7)
Introduction ta the Public Sector Standard Conditions of Contract ( PSSCOC}
Housing & Development Board:

Jurong Town Corporation:
Ministry of the Environment;
Ministry of Defence;
Port of Singapore Authority:
Public Utilities Board: and
Professional Institutes and Associations.
Clearly it cannot be desirable that each member of the construction team has
to familiarise themselves with the contractual implications of diverse contract
form s.8
With this acknowledgement, the Working Committee stated the need for
standardisation in clear express terms that would set the framework for
development of the new form coupled with some degree of flexibility:
The obvious approach is to standardise, as much as possible, these contract
forms. Standardisation does not mean that a contract fom1 s hould not contain
special provisions relaung to the peculiar circumstances of a given project. It
does mean that the bulk of the provisions are well tried and understood by all
parties involved, including the operational personnel who are actually
involved in supervising and carrying out the construction activities on site. In
this way, the contractual risks associated with a particular project will become
more readily ascertainable and it would be possible to reduce tendering effort
and expenses.9
The final version as published was developed jointly by:

( I)
(2)
(3)
Construction lndustry Development Board;

Public Works Department; and
Housing & Development Board,
with advice and input from the Attorney General's Chambers.
This same stated objective is retained in the first two paragraphs of the
Foreword in the PSSCOC 1995:
The Public Sector Standard Conditions of Contract for Construction Works
was developed to enable a common contract form to be used in all public
sector construction projects.
Standardisation will increase familiarity among users, reduce tendering
effort and promote greater efficiency in contract administration.
Pre-existing Forms of Contract

Prior to the introduction of the PSSCOC, the various public sector
organisations all had their own standard contract forms, including:
(I)
(2)
(3)
Public Works Department (PWD)

Housing & Development Board (HOB )
Mass Rapid Transit Corporation (MRTC)
Works 24 Form
HDBGCOC7
Modified FIDIC
The basis for development of these individual forms varied from one
organisation to another, with historical antecedents that go many years
back. What was clear was the obvious diversity of forms in use across
various public sector organisations.
Standardisation
The need for standardisation derived principally from the CIDB Report
on Construction Competitiveness which drew attention to the presence of
the many different forms of construction contracts as being one of the
Philosophy and Rationale

An extensive range of considerations were addressed during the
development of the Form. While most of these were in fact adopted and
incorporated in the final version of the Form, a number did not find their
way into the same. All the issues tabled for consideration were in fact
invaluable to some degree in terms of giving significance to the whole
rationale of the Form. Most of the more pertinent ones are discussed
briefly here with the sole purpose of setting the groundwork for better
understanding of the Form in its final version.
Principles Governing the Development

In drafting the Form. the Working Committee was guided by a number of
adopted principles:
5
6
7
It is now corporaLised and renamed as PWDCorp.

The consLrucllon of the MRT sysLem 1s now undertaken by the Land Transport
Authority (LTA).
See AcknowledgemenLS in the PSSCOC 1995.
HDB General Conditions of Contract.
8
9
Para 2, CIDB Explanatory Notes.

Para 3, CIDB Explanatory Notes.
lmroduction to rhe Public Sector Standard Co11di11011s of Comract ( PSSCOC)
(I)
(2)
(3)
(4)
(5)
adaptability of the Fonn;

promotion of sound construction management;
improvement of construction quality;
efficient allocation of risks; and
achievement of clarity of language.
Adaptability of the form was essentially intended lo enable its use readily
to diverse project situations and to accommodate inevitable differences in
project operating procedures and requirements of various government
departments and statutory bodies. With this in mind, the proposed draft
would contain only the basic or core conditions that would be structured
so as to facilitate the incorporation of provisions that were more project
specific. 10 These basic or core conditions would thus fonn the Core
Module.
Principal categories of project requirements would be catered through
the use of option modules that, when combined with the Core Module,
would be able to meet the specific requirements of the range of project
situations envisaged. This meant that the proposed conditions would be
drafted on the basis of a lump sum contract based on Drawings and
Specifications. with an option module drafted to cater for contracts based
on Bills of Quantities. Bearing in mind the limitation of a single set of
conditions, separate forms for smaller projects and minor works, as well
as for design and build contracts, would be developed. 11
Promotion of sound construction management practice was to be
achieved by emphasising clear lines of responsibility and accountability.
One example of this was the intended reduction of the need for
nomination by placing total responsibility for nominated subcontractors
on the main contractor. 12 Another was the requirement for contractors to
price variations and estimate their effects on completion time, as and
when they arise, thereby tightening budgetary control and improving
financial discipline. 13
Improvement of construction quality would be achieved by using
objective standards in determining achievement of the requisite level of
construction quality in favour of subjective ones that depended on
decisions of the Superintending Officer (SO). This, however, was in tum
dependent on consistency in the drafted conditions with the use of quality
related specifications in the drawings and other contract documents. 14
Efficient allocation of risks aimed for a basis which would essentially
allocate contractual risks in such a way that each risk fell to be borne by
the party best suited to deal with it. One clear example of this would be
the placing of the risks attaching to the preparation of details on the
10
11
12
13
14
Para 5, C IDB Explanatory Notes.

Para 6. CIDB Explanatory Notes.
Para 7, C fDB Explana1ory Notes.
Contractor. given that he should be more knowledgeable on construction

details. 15
Achievement of clarity of language was lo be realised by the adoption
of more readable prose, use of shorter sentences, avoidance of excessive
cross-referencing and minimisation of the use of legal jargon, all with tbe
view of enabling practising construction professionals to manage their
work without frequent recourse to legal advice. 16
Brief Summary of Some Items Considered
Some of the items considered by the drafting committee and their

subsequent adoption/omission are summarised here for useful reference.
(J)
Definitions, Interpretations, etc

Considered desirable to introduce a definitions clause, with
particular attention paid to definition of 'defects' and 'cost'. ('Cost'
not defined in final form but 'defect' defined in Clause 1.1 (i).)
(2)
Superintending Officer and Superintending Officer's

Representative
Considered important that the proposed fonn should recognise that
many duties of the SO would inevitably be delegated to more junior
officers. Appointment of SO's Representative and Assistants
contemplated, together with specified limits of authority. (Adopted
in Clause 2- SO and SO's Representative.)
Clarification provision stipulating that an SO shall at no time be
under any obligation or duty to exercise any of his powers under the
Contract considered. (Adopted in Clause 2.8 - No Obligation to
Exercise Powers.)
(3)
Contract Documents
Provision that all the constituent contract documents should be
taken as mutually explanatory. (Adopted in Clause 3. 1 - Contract
Documents to be Taken as Mutually Explanatory.)
(4)
All Inclusive Price Clause

Both the cases for and against such a clause were considered,
especially in view of the provision of the Singapore Institute of
Architects' Articles and Conditions of Building Contract.
(5)
Sub-surface and Ground Conditions

Initially intended as incorporation of an option module to deal with
allocation of such risks in uncertain ground conditions,
a subsequent review took the view that these provisions should be
15
16

Para 11, ClDB Explanatory Notes.
P!lblic Sector Standard Conditions of Contract for Co1Lstruc1io11 Works 2005
incorporated in the core provisions. (Adopted in Clause 5 - Subsurface and Ground Conditions.)
(6)
Contractor's Responsibility for Design

The Contractor's increasing contribution to design was recognised
by the Working Committee and it was considered appropriate to
include this responsibility for his design inputs in the core
conditions. (Adopted in Clause 6 - Permanent Works Designed by
the Contractor.)
(7)
Construction Programme
Given the importance of agreeing to a programme of works at the
start of any contract. the Working Committee considered the
imposition of a sanction by way of a I 0% retention of monies due
until the compliance. (Adopted in Clause 9.4 - Failure to Submit
Adequate Programme.)
(8)
Financial Compensation for Late Possession

The Employer being in the best position to influence the starting
date for a project, decision was made to grant both an extension of
time and compensation for loss and expense incurred following
default on Employer's part in granting timely possession. (Adopted
in Clause 12.3 - Failure to Give Possession.)
(9)
Notification for Extension of Time

To enable time extension applications to be settled expeditiously,
explicit requirements relating lo the notification procedure were
considered desirable for inclusion. (Adopted in Clause 14.3 Notice.)
To overcome the position where the Contractor may advance new
grounds of claim for time extension during arbitration, the
procedure would disallow such advancement of new or additional
grounds. (Adopted in Clause 14.3(5).)
( 10) Causes of Defects

As certain remedial work may only treat the symptoms of the defect
and not the root of the problem, it was considered useful to
incorporate a provision to empower the SO to instruct the
Contractor to search and identify the underlying causes of defects.
(Adopted in Clause 18.4 - Contractor to Search.)
(I I) Measurement Meetings
In order to settle all claims expeditiously and to prevent deliberate
absence at such meetings, the Working Committee considered it
useful to introduce a require ment on the part of the Contractor to
attend site measurement meetings. (Adopted in Clause 21.1.)
lntrod!lclio11 10 the Public Sector Standard Condi1w11s of Contracr ( PSSCOC)
has been disrupted, with the grounds of claim restricted to a list of

valid reasons. (Adopted in Clause 22 - Claims for Loss and
Expense.)
(13) Procedure for Claims

A set of detailed procedural requirements relating to claims would
strengthen financial discipline and provide a more timely means to
estimate and deal with budget deviations. Provisions for
notification, the keeping of contemporary records, the right of
access to the Contractor's books and documents for verification, etc
would serve to: (a) set the pace for expeditious settlement of claims;
(b) ensure that facts pertaining to possible claim situations were
recorded at a time when the events were still relatively fresh; and
(c) facilitate the gathering of data for expeditious valuation of
claims. (Adopted in Clause 23 - Procedure for Claims.)
To expedite payment for claims, allowance for their inclusion in
interim certificates would overcome any such delays. (Adopted in
Clause 23.5 - Payment of Claims.)
To reduce reluctance on the part of the SO to certify such claims
in interim payments, the Employer would specifically retain his
right to dispute any such entitlements. (Adopted in Clause 23.5(3).)
Failure to comply with the claim procedures would limit either
the SO or the arbitrator in any dispute resolution only to the
information submitted. (Adopted in Clause 23.6 - Failure to
Comply.)
(14) Assignment and Subcontracting
With the view of prohibiting the Contractor from abandoning his
principal functions as a main Contractor, any assignment or
subcontracting would require consent of the Employer. (Adopted in
Clause 30 - Assignment and Subcontracting.)
( 15) Termination by the Contractor
Although excluded in most public sector contracts due to the
assumption that the Government would act fairly in all its
undertakings and not default on its responsibilities, the Working
Committee felt that a limited set of provisions relating to
termination by the Contractor would achieve a more 'balanced'
contract. (Not adopted: draft clause omitted.)
( 12) Claims for Loss and Expense

It was deemed administratively more efficient to introduce a set of
express provisions to allow money claims where progress of work
( 16) Dispute Settlement

Settlement of disputes would follow a two-stage procedure that is
commonly practised in most standard forms, with the dispute being
first referred to the SO for a decision and thereafter to arbitration if
either party is dissatisfied with the SO's decision or if he fails to
give a decision within the stated time. (Adopted in Clause 34.1 Reference to the Superintending Officer.)
Public Sector Standard Conditions of Comract for Construction Works 2005
1999 Revision to the 1995 Form

In 1999, the Form underwent a review with feedback drawn from various
implementing agencies. It has since been amended, revised and updated
by the Building and Construction Authority, and re-published as the new
1999 edition.17 Accompanying the review and release of this new edition
was the publication of a guidebook 18 commissioned by the Building and
Construction Authority, with contributions from the Attorney General's
Chambers, Housing & Development Board, PWD Corporation and Wong
Partnership.
All amendments made are summarised in a List of Amendments which
accompanies the 1999 edition as part of the Supplement. 19 Among the
major amendme nts made are the inclusion of a number of new provisions
such as Clauses 1.4 (Joint and Several Liability), 20.4 (Dayworks) and
34.5 (Mediation).
2004 and 2005 Editions
In the 2004 edition, the major amendments are found in Clause 32

regarding payment to facilitate cash flow. Basically, wi th the introduction
of the Interim Final Account to be issued within 150 days after the Date
of Substantial Completion and the express provi.sion that the Contractor
may submit monthly statements up to the issue of the interim Payment
Certificate, a mechanism to pay the Contractor on a monthly basis
beyond the Date of Substantial Completion was made possible. To ensure
that another source of income is not held up, Clause 20.2 was amended to
expressly provide a scheme to monitor the completion of the variation
works and to pay for the variations that are completed by the Contractor
on a monthly basis. Another provision which has since been omitted from
the 2005 edition is Clause 32.9 (Display of Payment Information) which
presumably provides a mechanism by which all the Contractor's
subcontractors and suppliers are made aware that the Contractor has been
paid so that the pay-when-paid provision can be effectively operated.
Thi s pay-when-paid provision has been made unlawful by the Building
and Construction Industry Security of Payment Act 2004 and
amendments have been made to address this issue. An important but
rather obscure provision found in Clause 12 has been omitted to prevent
the Employer from setting off any amount which may be owed by the
Contractor to the Employer in another contract which the two may have.
17
18
19
Public Sector Standard Conditions of Contract for Construction Works 1999.

Building and Construction Authority, 1999.
A Guide on the Public Sector Standard Conditions of Contract for Construcuon
Works 1999, Building and Construction Authority, 1999.
Public Sector Standard Conditions of Contract 1999 Supplement, Building and
Construction Authority, 1999.
lmroduction to the Public Sector Srandard Co11dirio11s of Comract ( PSSCOC)
Another signific~t ~endment ~ay be found in Clause 5 which replaced

the concept of art1fic1al obstruct10n with adverse physical conditions.
lt may be concluded that the 2005 edition contained amendments that
attempted to make the PSSCOC compliant ~1th the Act. Although the
Act allows a parallel contractual payment scheme to exist with the
statutory paym~nt scheme, the drafters of PSSCOC 2005 appears to have
attempted to. mtegrate the two schemes. Statutory terminology like
Payment Chu m, ~ayment Response, Claimed Amount and Response
Amount, made thelf way to Clause 1. the definition clause. Accordingly,
the _Monthl_y Statements found in Clause 32. l are now known as Payment
Claims which ought to contain the Claimed Amount. In the 2005 edition
the nameless certificates i~sued by the SO under Clause 32.2 are given ~
~ame called Payment Certificates. What may be said to be an innovation
m the 2005 edition is deeming the SO's Payment Certificate as Payment
Response s_hould the Employer fail to provide a Payment Response. This
may effectively change the status of a certifier as known in case Jaw
Besides the statutory payment scheme, the Act offers the Contractor ~
new. way of enforcing payment through statutory adjudication that is
provided by the Act. Accordingly, Clause 34.5 (Settlement of Disputes) is
amended to expressly provide statutory adjudication. An important
amendment to Clause 34 would be the removal of the Ion<> established
provis~on that the Contractor must bring any dispute or difference as
prescnbed to the SO under Clause 34.1 before beino0 allowed to proceed
with arbitration. This is no longer the cal.e.
The Caveat
As the amendme_nts found in the 2005 edition are basically there to
addre~s the requtrements of the Building and Construction Industry
Secunty of Payment Act 2004, it is important to understand the Act and
its objectives especially the intended relationship between the statutory
payment scheme and the contractual payment scheme which parties may
agree to.
The Act is copied from the New South Wales' Act of the same name
with some fundamental differences. While the author's stand based on a
reading of the Singapore Act as compared with the New South Wales'
Act is that the statutory payment scheme cannot be activated on its own
the altem_ative view which is accepted by the BCA suggests otherwise:
Hence this stand accepted by the BCA appears to have influenced the
drafting of ~he PSSCO_c 2005. Therefore, it is expressly provided that the
Contractor IS to subrrut a Payment C laim under Clause 32.1 in order to
start ~e payment scheme whereas my comments at the relevant places
have indicated that a Payment Claim may be submitted in accordance
with its definition given by section 2 of the Act which, inter alia, requires
the Payment to contain the C laimed Amount which includes a claim for
~t~res~ in respect of the unpaid amount of a progress payment thereby
md1caung that a Payment Claim can only be submitted when there is a
9
failure to pay in respect of a progress payment. Accordingly, the author

submits that a Payment Claim can be made only when the Contractor is
entitled to payment and was not paid an amount which he is entitled by
the due date of payment.
Ultimately, the difference in opinion as regards the meaning of the
provisions of the Act would have to be decided by the courts. If my view
is accepted by the courts, it would mean that both the Act and the
PSSCOC 2005 would have to be amended accordingly. If my view is
rejected by the courts, this book would require another edition.
Clause 1 -
Definitions and Interpretation
Generally
Most disputes relating to contracts may be divided into two types,

namely: (a) where the existence of the express term is not disputed, then
their meanings may be so disputed; and (b) where there is no express
term, it may be disputed whether an implied term existed. Building and
construction contracts are usually in the written form and most standard
forms of contract have a comprehensive coverage. However, as there is
usually a heavy technical content in building and construction contracts,
it is certainly advantageous to define the terminology used in such
contracts which are technical in nature or have meanings which cannot be
satisfactorily defined by using the literal rule of construction that the
courts follow as the first guide to interpretation.
As is typical of most contemporary forms of contract, both local and
international, the purpose of such a clause is to set the overall framework
for assigning meanings to specific words and expressions that are used
across the whole contract.
The basis for such express definitions in contracts generally is best
summed up by Lewison:'
Parties are, of course, free to provide express definitions of tem1s which they
employ in their contract, if they do so the court will uphold the definitions so
agreed, even where the meaning attribULed to the defined term by the
definition is not its ordinary meaning. 2 Where a term is defined as 'including'
certain things, the definition is not exhaustive, and anything which falls
within the natural meaning of the term in the context of the particular contract
will also be held to fall within the defined tenn '
10
Lewison, K, The Interpretation of Contracts (3rd ed. 2004, Sweet & Maxwell) p 139
of section 5.10.
Re George and the Goldsmiths and General Burglary lm11ra11ce Association ltd
[ 1899) I QB 595.
Adelphi (Estates) lid v Christie (1984) 269 EG 221
11
Intention of the Clau se

Thi s clause has four sub-clauses. ll is intended to assign meanings to
words and expressions by way of a summary collection of these within a
'definitions' sub-clause.4 The basis for inte rpretatio n of sing ular and
plural words, headings and marginal notes, is also spelt out in this
c lause. 5
G iven
the
predo minance
of
joint
venture
arrangeme nls/partnerships that are called for or in use in many of the
projects of the various publ ic sector entities, the clause additionally
re inforces the joi nt and several liability that the contractor owes lo the
employer in such instances. 6
Defi nitions
It is expressly provided that the definitions given to the terms set o ut
be low from sub-clauses I. I (a) to I . I (ag) inclusive is for use in the
Contract only as defined in Clause I . I(d). Should there be any conflict or
inconsistency between the Conditions and o ther documents fonning the
Contract, the guidance given by C lause 3. 1 is thal the Conditions shall be
given precedence and within the Conditions, the Particular Conditions, if
any, shall be given precedence. Further, it is to be no ted that the
definitions given to the terms are no t absolule in that meanings other than
those assigned be low are applicable if the contexl requires.
Clause 1. l(a) - 'Appe ndix' means the appendix to these Condi tio ns
This definition is useful and practical co nsidering that in any building and
construction contracts, there are many sets of documents where it is no
uncommon to have appendix(ices). Hence thi s provision makes it clear
that reference to 'Appendix' in the Contract refers to only the Appendi x
to the Co nditio ns. What may be inconsistent with the use of the word
'Appe ndix' is the fact that it is not to be found together with the
Conditio ns but is actually part of another document referred to as
'Supplement'.
The term 'Appendix' is also found in the following defi nitions: subclauses l.l (c) 'Conditions', l.l (d) 'Contract', l.l (k) ' Defects Liability
Period ', l.l (m) 'Employer' and l.l (at) Time for Completion'.
Clause 1.1 (b) - 'Claimed Amou nt' means the whole or part of any payme nt
claimed by the Contracto r in a Payment Claim pursuant to Clause 32.1(1)
It is not usual and 1 would submit not recommended to define a term in
two places. In this case, 'Claimed Amount' is itself also defined in
4
5
Clause I - Definitions and Interpretation
Claus~ 32. l (l) as the amounts shown in the Contractor's Payment C laim
to which the Contraclor considers himself to be entitled to the last day of
the monthly interval in q uestion. thus by Clause l.l (b) 'Claimed
Amount' means the whole or part of the 'Claimed Amount' as defined in
Clause 32. l ( I).
It is also not usual and 1 would submit not recommended to defi ne
terms d ifferently fro m what is defined in statute when it is the declared
intention that the use of the said lerm is lo be in compliance with the
relev~t Act. By section 2 of the Building and Construction Industry
Secunty of Payme nt Act. 'Claimed Amounl' means 'the whole or part of
any progress payment [progress pay ment defined by the same section 2
as a pay.ment to which a person is enti tled for the carryi ng out of
construction work . . . under a contract, and includes (a) a single or oneoff payment; or (b) a payment that is based on an event or a date] claimed
by a. claimant in a payment claim. and includes any interest payable under
sectio n 8(5) [by section 8(5), 'The interest payable o n the unpaid amount
of a progress payme nt that has become due and payable ... " ]' . It is noted
that fundamentally, the Contractor does not claim for interest under
Clause 32. l ( I) and the payment claim required under Clause 32. l (I) is
not submitted after a progress payment has been unpaid when due and
payable.
This case may be aggravated by the fac t that section 36(2)(a) of the
Act provides. that ~ provision under which the operation of this Act or a ny
part thereof 1s, or is purported to be, excluded, modified, restricted or in
any way prejudiced, or that has the effect of excluding, modifying,
restricting or prej udicing the operation of this Act or any part thereof
shall be void.
The term 'Claimed A mount' is not used in the other defined terms.
Clause 1.1(c) - 'Cond itions' mea ns the Standard Conditio ns and Particular
Cond itions (if any) of Contract for Construction Work contained in the
Contract and Option Modu les specified in the Appendix
In draf~ing a defi.nition, it would be a good guide not to create a potential
confusion. In this case, 'Conditions' refer to Standard Conditions and
Particular Conditions (if a ny) contained in the Contract. However, when
one looks at the defi nition of 'Contract', one is told that the Contract,
inter alia, means Conditions and Appendix, thereby leaving no one wiser
as to how one wou ld determine whether there are any applicable
Particular Conditions and how these may be identified .
The term 'Conditions' is also fou nd in the following defini tions: subclauses l. l(a) 'Appendix', l.l(d) 'Contract', l.l(e) 'Contract Sum ',
I. I (h) 'Contractor's Representative' and I. I (r) 'Option M odule'.
See cl I. I.
See cl 1.2 and t.3.
See cl 1.4.
12
13
Public Sector Standard Conditions of Contract for Constr11ctio11 Works 2005
Clause I - Definitions and Interpretation
Clause 1 .1 (d) - 'Contract' means the Conditions and Appendix, the

Specifications, Drawings, Schedule of Rates (if any), Bills of Quantities (if
any), the Tender, Letter of Acceptance, Agreement and such other letters
and documents as the parties may expressly identify in writing and agree as
forming part of the contract
Clause 1.1 (g) - 'Construction Equipment' means a ll equ ipment, apparatus

and things of whatsoever nature required for the execution and completion
of both the Temporary Works and the Permanent Works and the remedying
of any defects therein, but does not include Plant, materials, goods or work
or other things intended to be part of the Works
The definition appears to be comprehensive enough to cover the usual

documents. It has also provided for the parties to expressly identify in
writing and agree to whether a particular document forms part of the
contract thereby providing a mechanism to identify documents that form
part of the contract. What is not clear would be a not uncommon practice
of deletions and additions on the Conditions themselves.
The term 'Contract' is also found in the following definitions: subclauses l.l(c) 'Conditions', l.l(j) 'Defect', l.l(l) ' Drawings', I. J(u)
'Permanent Works', l.l(z) 'Site', l.l(aa) 'Specifications', J.J(ab)
' Superintending Officer', I.I (ad) 'Tender' and l.l (af) 'Time for
Completion'.
It is useful in this case to differentiate the use of the te1m 'equipment' and
'plant' by whether the subject matter concerned ends up as part of the
Works then.
The term 'Construction Equipment' is also found in the subclauses I. I (ae) 'Temporary Works'.
Clause 1.1 (e) - 'Contract Sum' means the lump sum set out in the Letter of
Acceptance, and shall be fixed subject only to adjustments expressly
provided for in the Conditions
There is potential for ambiguity as the term contract sum is also found in
the Agreement.
The term 'Contract Sum' is not used in the other defined terms.
Clause 1.1 (f) - 'Contractor' means the person or firm or corporation whose
Tender has been accepted by the Employer and includes the Contractor's
legal personal representatives and any person to whom the rights or
liabilities of the Contractor have been assigned or transferred with
agreement in writing of the Employer under Clause 30.1
This definition also provides for the possibility that the Contractor who
signed the Contract with the Employer may be replaced by another
contractor as permitted by Clause 30.1.
The term 'Contractor" is also found in the following definitions: subclauses 1.l(b) 'Claimed amount', l.l (h) 'Contractor's Representative',
1.1 (1) ' Drawings', l.l (m) 'Employer', l.l(o) 'Final Payment Claim',
J. J(q) ' Loss and Expense', J.l (s) 'Payment Claim', l.l(t) 'Payment
Certificate', l.l (w) 'Provisional Sum Items', l.l(x) 'Rates', l.l(ad)
'Te nder' and 1.1 (af) 'Time for Completion'.
Clause 1.1(h) - 'Contractor's Representative' means the person dul y

appointed pursuant to Clause 11.2 of the Conditions
It would appear that other than in this c lause and Clause 1I .2, the term
may not be in frequent use. If that being the case, it may beg the question
as to why this occupies a space here.
The term 'Contractor's Representative' is not used in the other defined
terms.
Clause 1.1 (i) - 'Date of Substantial Completion' means the date stated in a
certificate issued pursuant to Clause 17.1 or 17.3
Whereas this definition allows the parties to identify the 'date' of
substantial completion, it leaves them, as well as the SO who must certify
the date o n which in his opinion the Works were 'substantially'
completed in accordance with the Contract, wondering what must be
done in order to be classified as 'substantially' completed. Any
understanding of what may be 'substantially' completed may be further
confused by the concept that 'outstanding' works may exist when the SO
certifies substantial completion.
The term ' Date of Substantial Completion' is also found in subclause l.l(k) 'Defects Liability Period'.
Clause 1. 1(j) - ' Defect' means any part of the Works not executed,
provided or completed in accordance with the Contract. For the avoidance
of doubt and without limiting the general ity of the expression the term shall
be taken to include any item of Plant, material, goods or work incorporated
or used in the Works wh ich does not or may not conform to the relevant
quality standards or pass the tests prescribed in or to be inferred from the
Contract
It may be desirable to note that by Clause 1.2, any word importing the
singular also includes the plural. Hence definition of a 'defect' here could
be used to give meaning to the plural form of 'defects'.
14
15
Public Sector Standard Co11dit1011s of Co111ract for Co11stn1c1ion Works 2005
Clause I - Deji11itions and /11terpretatio11
The tenn 'Defect' is also found in sub-clause I.I (k) 'Defects Liability
Period'.
Clause 1.1 (n) - 'Final Account Certificate' means the document issued by
the Superintending Officer under Clause 32.5
Clause 1.1 (k) - ' Defects Liability Period' means the Defects Liability Period
set out in the Appendix hereof, calculated from:
(a) the Date of Substantial Completion of the Works certified by the
Superintending Officer in accordance with Clause 1 7; or
(b) in the event of more than one Certificate of Substantial Completion
having been issued by the Superintending Officer under Clause 17, the
respective Dates of Substantial Completion so certified
This definition is not consistent with the definition of Payment Certificate

in that this definition refers to the Final Account Certificate as a
document instead of a certificate which term is used in the definition
given to Payment Certificate. As a certificate bears a special meaning and
imposes a duty of certification on the certifier, it is submiued that the
word 'certificate' be used instead of 'document'.
The term 'Final Account Certificate' is not used in the other defined
terms.
The definition given here appears to be concerned in the calculation of

the period in the tenn defined, that is the defects liability period. lt may
be interpreted as the period in which the Contractor may be held liable for
defects, and upon the expiry of the defects liability period. the Contractor
would be released from his liability. This may be compared with the tenn
used in the Singapore Institute of Architect's standard form of contract is
'Maintenance Period'.
The tenn 'Defects Liability Period' is not used in the other defined
terms.
Clause 1.1 (I) - 'Drawings' means the drawings referred to in the Contract
including such drawings which have been prepared by the Contractor and
accepted by the Superintending Officer pursuant to Clause 6.2 and such
other drawings as may from time to time be issued or accepted in writing
by the Superintending Officer
This definition appears to have three parts. The first part refers to the
definition of Contract which provides that the Contract means, inter alia,
Drawings as the parties may expressly identify and agree as fonning part
of the contract. The second part is an elaboration of the definition of
Drawings to include drawings prepared by the Contractor that are
accepted by the SO pursuant to Clause 6.2. The third part has two limbs
with the fonner referring to such other drawings issued by the SO and the
latter referring to such other drawings, presumably by the Contractor, that
are accepted by the SO. Further, drawings in the third part are those that
are issued or accepted 'from time to time' and these are not known at the
fonnation of the contract.
The term 'Drawings' is also found in sub-clause l.l(d) 'Contract'.
Clause 1.1 (o) - 'Final Payment Claim' means a claim for payment made by
the Contractor pursuant to Clause 32.4(1)
This definition should be improved by including the information given in
Clause 32.4(3) which provides that 'The Final Payment Claim made
under this Clause shall constitute a Payment Claim made under the Act,
provided always that the requirements for the Final Payment Claim made
are fully complied with under the Act' . As explained above at
Clause l. l(b) 'Claimed Amount'. the Final Payment Claim appears not to
qualify as a Payment Claim under the Act as a Payment Claim contains
the Claimed Amount which includes a claim for interest in respect of the
unpaid amount of the progress payment whereas the Final Payment
Claim is a fresh claim and not a claim for payment in respect of amounts
which are part of a progress payment that became unpaid.
The term 'Final Payment Claim' is not used in the other defined terms.
Clause 1. 1(p) - 'Letter of Acceptance' means the formal acceptance by the
Employer of the Tender
It appears from this definition that the PSSCOC is intended to be used as

a public sector fonn and the Employer is limited to the government and
any statutory board. The term 'Employer' is also found in the following
sub-clauses: I. I (t) 'Contractor' and 1.1 (p) 'Letter of Acceptance'.
When read with the definition given by Clause l.l(ad) for 'Tender', there
appears to be some circularity in linking the definition of one term with
the other. If a Letter of Acceptance is a formal acceptance of the Tender,
one would expect the Tender to be that which 1s offered by the Contractor
in its original form. However, the definition of Tender is not that. Instead
Clause 1.1(ad) defines the Tender as the Contractor's offer as accepted by
the Letter of Acceptance. There lies the circularity of the definition. In
most situations, the original tender offer is adjusted after tender
interviews and/or further negotiations and it would be closer to reality
that the letter of acceptance accepts what may be called an
'adjusted/modified' tender. Perhaps definitions should seek to clarify
rather than offer ambiguity.
The term 'Letter of Acceptance' is also found in the following subclauses: l.l(d) 'Contract', l.l(e) 'Contract Sum', l.l(ad) 'Tender and
l.l(af) 'Time for Completion.
16
17
Clause 1.1 (m) - 'Employer' means the Government or the statutory body
specified in the Appendix
Public Sector Standard Conditions of Co111ract for Construction Work.s 2005
Clause 1 - Defi111tio11.1 and /merpretation
Clause 1.1 (q) - 'Loss and Expense' means:

(i) the direct relevant costs of labour, Plant, materials, or goods actually
incurred;
(ii ) costs of an overhead nature actually and necessarily incurred on the
Site but in either case o nly in so far they would not otherwise have
been incurred and which were not and should not have been provided
for by the Contractor; and
(iii) 15% of any suc h costs, such 15% to be inclusive of and in lieu of any
profits, head office or other administrative overheads, financing
charges (i ncluding foreign exchange losses) and any other costs, loss or
expense of whatsoever nature and howsoever arisi ng
carrying out of construction work . . . under a contract. and includes;

(a) a single or one-off payment; or (b) a payment that is based on an event
or a date"] under section IO'.
By section I 0( I), a claimant may serve one payment claim in respect
of a progress payment. However, by Clause 32.1(1 }, the Contractor is
submitting a fresh claim and not for a claim fo r which the Contractor is
already entitled. By section l0(3)(a), a payment claim shall state the
claimed amount which expressly includes any interest payable under
section 8(5) (by section 8(5). 'The interest payable on the unpaid amount
of a progress payment that has become due and payable ... '). It is noted
that fundamentally, the Contractor does not claim for interest under
Clause 32.1 ( I) and the payment claim required under Clause 32.1 ( I) is
not submitted after a progress payment has been unpaid when due and
payable. By section 10(3)(b). a payment claim sha ll be made in such
form and manner. and cool.a.in such other information or be accompanied
by such document as may be prescribed. These are so prescribed in the
Building and Construction Industry Security of Payment Regulations
2005. However, by Clause 32.1 (1 ), the payment claim is to be in such
form as the SO may from time to time prescribe.
This case may be aggravated by the fact that section 36(2)(a) of the
Act provides that a provision under which the operation of this Act or any
part thereof is, or is purported to be. excluded, modified, restricted or in
restricting or prejudicing the operation of this Act or any part thereof
shall be void.
The term 'Payment Claim' is a lso found in the following sub-clauses:
l.l (b) 'Claimed Amount' and l.l(t) 'Payment Certificate'.
This definition should be read with Clause 22.2 which provides that the
Contractor is not entitled to recover any loss, expense, costs or damage
whatsoever except in accordance with the express provisions of the
Contract. It would appear that the above definition of Loss and Expense
defines what the Contractor may recover. lndeed. the above formula
would be used to the exclusion of a common law basis.
The term 'Loss and Expense' is not used in the other defined tenns.
Clause 1 .1 (r) - 'Option Module' means an Option Module appearing at the
end of the Conditions
This definition should be read with the definition of Clause 1.1 (c)
'Conditions where it is stated that an Option Module is part of the
Conditions only if specified in the Appendi x.
The term 'Option Module' is not used in the other defined terms.
Clause 1.1 (s) - 'Payment Claim' means a claim for payment made by the
Contractor pursuant to Clause 32.1(1)
As in the case of the definition given to 'Claimed Amount' in
Clause I. I (b). the comments for this clause are similar. It is not usual and
I would submit not recommended to define a term in two places. In this
case. 'Payment Claim' is itself also defined in Clause 32. 1(I) as a claim
for payment in such form as the SO may from time to time prescribe. It is
also provided that the Payment Claim shall have the same meaning as
ascribed in the Building and Construction Industry Security of Payment
Act 2004 and that it should show the amounts to which the Contractor
considers himself to be entitled up to the last day of the monthly interval
in question.
It is also not usual and I would submit not recommended to define
terms differently from what is defined in statute when it is the declared
intention that the use of the said term is to be in compliance with the
relevant Act. By section 2 of the Act, 'payment claim' means 'a claim
made by a claimant for a progress payment [progress payment is defined
by the same section 2 as "a payment to which a person is entitled for the
18
Clause 1.1 (t) - 'Payment Certificate' means a certificate issued by the

Superintending Officer pursuant to Clause 32.2(1) or 32.5(1 )(a) in response
to a Payment Claim or Fi nal Payment Claim made by the Contractor
The term 'Payment Certificate' is also found in the sub-clauses I. I (y)
' Response Amount'.
Clause 1.1 (u) - 'Permanent Works' means the works of a permanent nature
(including Plant) lo be executed in accordance with the Contract
The term ' Permanent Works' is also found in the following sub-clauses:
l.l(g) 'Construction Equipment', l. l(v) 'Plant' and l.l(ag) 'Works'.
Clause 1.1 (v) - ' Plant' means machinery, apparatus and the like intended
to form or forming part of the Permanent Works
The term ' Plant' is also found in the followi ng sub-clauses: I. I (j)
' Defects', 1.1 (q) ' Loss a nd Expense and I.I ( u) Permanent Works'.
19
Public Secror S1a11dard Condicions of Co11trac1 for Co11s1ructio11 Works 2005
Clause 1.1 (w) - 'Provisional Sum Items' means items of work which shall
only be executed or provided upon instruction in writing by the
Superintending Officer who may decide that the work in whole or in part
or not al all may be carried out by the Contractor
The term 'Provisional Sum Items' is not used in the other defined terms.
Clause 1.1 (x) - ' Rates' means those in the Schedule of Rates or the rates
and prices contained in Bills of Quantities, whichever is applicable,
including any modifications or additions thereto agreed in writing by the
Employer and the Contractor
The term Rates' is not used in the other defined terms.
Clause I - Defi11i1io11s a11d lmerprerarion
This case may be aggravated by the fact that section 36(2)(a) of the
Act provides that a provision under which the operation of this Act or any
part thereof is, or is purported to be, excluded, modified, restricted or in
restricting or prejudicing the operation of this Act or any part thereof,
shall be void.
The tem1 'Response Amount' is not used in the other defined tenns.
Clause 1.1 (z) - 'Site' means the lands and other places on, in, under, over
or through which the Works are to be executed or carried out or any other
lands or places provided by the Employer for the purposes of the Contract
The term 'Site' is also found in Clause l.l(q) 'Loss and Expense'.
Clause 1.1 (y) - 'Response Amount' means the amount that the
Superintending Officer proposes to pay to the Contractor in the Payment
Certificate issued pursuant to Clause 32.2(1)
As in the case of the definition given to 'Claimed Amount' in
Clause 1.1 (b) and that given to 'Payment Claim' in Clause I. I (t), the
comments for this clause are similar. It is not usual and I would submit
not recommended to define a term in two places. ln this case, Response
Amount' is itself also defined in Clause 32.2(1) as the amounts which
may consist of deductions of any sums which have been or may become
due and payable by the Contractor to the Employer under the Contract or
otherwise to which the Contractor is, in the SO's opinion, entitled in
respect of the Claimed Amount.
It is also provided that the Payment Certificate issued by the SO shall
fully comply with the requirements for Payment Response made in
contemplation of the Building and Construction Industry Security of
Payment Act 2004.
It is also not usual and I would submit not recommended to define
tenns differently from what is defined in statute when it is the declared
intention that the use of the said term is to be in compliance with the
relevant Act. By section 2 of the Act, 'response amount' means, in
relation to a construction contract, the amount that a respondent proposes
to pay to the claimant in a payment response provided under
section 11 (I) or 12(4) or as varied under section 12(4 ).
It would appear that what the SO certifies is not what the respondent
proposes to pay to the claimant but the SO's opinion as to what the
Contractor is entitled. Therefore, it is submitted that the SO's Payment
Certificate does not contain the statutory Response Amount.
Further, under section 11(1), a respondent shall respond to a payment
claim. However, if as explained above, the payment claim as provided by
the Contract is not as prescribed by the Act for the reasons stated above,
then the SO's Payment Certificate may not qualify as a Payment
Response as it would not be responding to a statutory Payment Claim.
20
Clause 1.1 (aa) - 'Specifications' means all specifications contained in the

Contract including any modifications or additions thereto as may from time
to time be issued or approved in writing by the Superintending Officer
The term 'Specifications' is also found in sub-clause I. I (d) 'Contract'.
Clause 1.1 (ab) - 'Superintending Officer' means the person, firm or
corporation appointed as such by the Employer for the purposes of the
Contract
An examination of the duties and powers of the SO prescribed by the
Contract would make one wonder whether a firm or corporation can
effectively perform the said duties and exercise the said powers since in
many situations, a 'personal' opinion is required. It is therefore submitted
that the SO, unless all his duties and powers have been delegated in the
actual administration of the contract, must necessarily be a human being
who is able to effectively perform the prescribed contractual duties and
exercise the prescribed contractual powers.
The term 'Superintending Officer' is also found in the following subclauses: l.l(k) 'Defects Liability Period', l.l(I) 'Drawings', l.l(n) 'Final
Account Certificate. I.I (t) 'Payment Certificate', I. I (w) ' Provisional
Sum Items', I.I (y) Response Amount'. I. I (aa) 'Specifications' and
1.1 (ac) 'Superintending Officer's Representative'.
Clause 1.1 (ac) - 'Superintending Officer's Representative' means the

person, appointed from time to time by the Superintending Officer under
Clause 2.2
The term 'Superintending Officer's Representative' is not used in the
other defined terms.
21
Public Sector Standard Conditions of Contract for Cons1ruclion Works 2005
Cl<mu 1 - Definilions and /111erprera1io11

~~~~~~~~~~~~~-
Clause 1.1 (ad) - 'Tender' means Lhe Contractor's offer to the Employer to
design (to the extent provided for by the Contract), execute and complete
the Works for a lump sum as accepted by the Letter of Acceptance
Please see the discussion for sub-clause l. l(p) 'Lener of Acceptance'
above.
The tenn 'Tender' is also found in the following sub-clauses: I.I (d)
'Contract', 1.1 (t) 'Contractor' and J.l (p) 'Letter of Acceptance'.
Joint and Several liabi lity

This is a new inclusion in the l 999 edition. Individual partners or
companies that comprise the Contractor where it is a joint venture
partnership shall carry a joint and several liability to the Employer under
the Contract.9 In view of the numerous joint venture arrangements that
are called for in public sector projects, this statement of liability serves
effectively to protect the interests of the Employer.
Clause 1 .1 (ae) - 'Temporary Works' means all works of a temporary nature

of every kind (other than Construction Equipment) required or provided in
or about the execution of the Works and the remedying of any defects
therein
The tenn 'Temporary Works' is also found in the following sub-clauses:
l.l(g) 'Construction Equipment' and l.l(ag) 'Works'.
Clause 1.1 (at) - 'Time for Completion' means time or times for the
completion of the Works or a ny phase or part of the Works set out in the
Letter of Acceptance or Appendix subject to such extension or extensions
of time (if any) as the Contractor may be allowed under the Contract
The tenn 'Time for Completion' is not used in the other defined tenns.
Clause 1. 1(ag) - 'Works' means the Temporary Works a nd the Permanent
Works, and where the context requires, a phase or part of the Works
The tenn 'Works' is not used in the other defined tenns.
Singular and Plural

Whether words are in the singular or plural they will import the
alternative where the context requires. 7
Headings a nd Ma rginal Notes

Headings and marginal notes have no part to play in that they do not fonn
part of the Conditions, and they will not be considered when interpreting
or construing the Conditions.8
7
8
See cl 1.2.
See cl 1.3.
9
22
-~~~~~~~~~~~-
See cl 1.4.
23
Clause 2 - Superintending Officer and

Superintending Officer's Representative
Generally
In most building and construction contracts, the employer does not

superintend the works. Usually, the employer is not a technically
competent man to superintend the works. Hence, there is a technically
competent person to represent the interest of the employer. This person
acts as the employer's agent. He is known as the Architect in the standard
forms produced by archjtects and usually used for buildjng works. He is
the Engineer in the standard forms produced by engineers for civil
engineering projects. And in the standard forms for public sector projects,
the Superintending Officer is the agent.
The Superintending Officer (SO) is the principal equivalent of the
Archjtect/Engineer or Supervising Officer who is appointed by the
Employer/Owner in a typical construction contract. Like the Architect,
the SO has two functions as explained in Sutcliffe v Thackrah: 1
Now I come to the position of an architect. He is employed by the building
owner but has no contract with the contractor. We do not in this case have
occasion to consider whether nevertheless be may have some duty to the
contractor: I do not think that a consideration of that matter would help in the
present case. The RIBA form of contract sets out the architect's functions in
great detail. It has often been said, I thmk rightly, that the architect has two
different types of functions to perform. In many matters he is bound to act on
his client's instructions, whether he agrees with them or not: but in many
other matters requiring professional skill he must form and act on his own
opinion.2
The agent is empowered according to the authority conferred to him by

the principal in the law of agency. The authority may be express and is
made known to the other party to the buiJdjng and construction contract.
Alternatively, the law of agency recognises implied authority based on
the express terms of the contract. There 1s also what is known as
1
2
(1974) 4 BLR 16.

Ibid at 21.
25
P11blic Sec/Or Standard Co11ditio11s of Comract for Co11stmctio11 Wnrh 2005
Clause 2 - Superintendin!( Officer and SuperimendinC( Officer's Represemative
ostensible authority based on the role of the Architect/Engineer/SO.

Therefore, whatever is done by the agent based o n an authority
recognised by the law, the principal would be bound. Should the agent act
outside his scope of authority, the principal is not bound and the other
party to the building and construction contract may seek his recourse
against the agent for breach of warranty of authority.
or decision of the SO's Rep. Related to this sub-clause would be

Clause 34 (Settle ment of Disputes).
In sub-clause 2.4, the a ppointment of persons to assist the SO's Rep
may be made by the SO or the SO's Rep. The Contractor must be notified
in writing of the names, duties and authority (if any) of such assistants.
The authority of such assistance is limited to the issuing of instructions
that may be necessary to enable them to CarJ) out their duties and to
secure that the Plant, materials, goods or work are in accordance with the
Contract.
Clauses 2.5 and 2.6 should be read together. By sub-clause 2.5, the SO
should issue his instructions in writing. However. the exception to issue
oral instructions is given when the SO considers it necessary and the
Contractor must nevertheless comply with the oral instructions. To
protect himself, the Contactor must confmn in writing such oral
instructions given by the SO, whether before or after the carrying out of
the instruction. This is known as a deemed instruction if it is not
contradicted by the SO. These provisions apply equally to the SO's Rep
and the assistants to the SO or the SO's Rep.
Clause 2.6 provides for the contractual remedy for the Contractor"s
breach of contract by failing to comply with the SO's instructions within
14 days after the receipt of an inscmction from the SO. By this subclause, tbe Employer is empowered to employ and pay other persons to
do whatever may be necessary to give effect to the SO's instruction and
recover the amount of any cost, loss and expense and damage incurred or
suffered in connection therewith fro m the Contractor. Related to this subclause is Clause 35. 1. Clause 35.1 permits the Employer to deduct from
amounts due to the Contractor and to recover from the Contractor the
amount owing as a debt.
There is a special provision to effect urgent repairs under the next subclause, 2.7. If the SO is of the opinion that any remedial or other work is
to be urgently necessary. the SO may authorise the carrying out of the
same by a person other than the Contractor if the Contractor is unable or
unwilling at once to do so. Any cost, loss, expense or damage incurred as
a result may be recoverable by the Employer fro m the Contractor if the
Contractor was liable to do or for which he is otherwise responsible under
the contract. Related to this sub-clause is Clause 35. 1. Clause 35. 1
permits the Employer to deduct from amounts due to the Contractor and
to recover from the Contractor the amount owing as a debt.
The last sub-clause, 2.8, has two limbs. The first limb, Clause 2.8( 1)
expressly provides that the SO. the SO's Rep and the assisiants are not
required to exercise the powers given to them. Consequently, this
omission does not prejudice the Employer's right against the Contractor
neither does it render the Employer liable to the Contractor.
The last limb, Clause 2.8(2), however, makes it clear that the Employer
would still be liable for any act or omission of the SO, SO's Rep and
assistants who are acting on behalf o f the Employer within the scope of
the authority then conferred on that per~on .
Intention of the Clause
This clause has eight sub-clauses. This clause basically defines the role of
the Employer's3 agent. By Clause I. I(ab) 'S uperintending Officer' means
the person. firm or corporation appointed as such by the Employer for the
purposes of the Contract4 and Clause J.J (ac) 'S uperintending Officer's
Representative' means the person, appointed from time to time by the SO
under Clause 2.2.
There are two limbs to the first sub-clause, 2.1. The first limb provides
for the express and implied authority of the SO. It also prescribes that any
limitations on the SO's authority be set out in the Appendix. 5 The second
limb expressly provides that the SO has no power to relieve the
Contractor6 of any of his obligations under the Contract unless it is
expressly stated in the Contract.
The next sub-clause, 2.2, creates the SO's Representative (SO's Rep).
The SO"s Rep is appointed by the SO and not the Employer. The SO's
Rep is responsible to the SO. This sub-clause expressly allows the SO to
delegate such duties and such authority but pursuant to the next following
sub-clause.
The SO's right to delegate is itself authorised in sub-clause 2.3. The
SO may from time to time delegate to the SO's Rep such duties and
functions vested in the SO other than those listed in the Appendix
pursuant to Clause 2.1. The SO has the corresponding right to revoke
what he has delegated. In both cases, it is not effective on the Contractor
until a copy of such delegation or revocation has been delivered to the
Contractor. It is expressly provided that any act done by the SO's Rep in
accordance with the delegation has the same effect as though it had been
done by the SO. However, there are twp exceptions. The first is that the
failure of the SO's Rep to disapprove any Plant,7 materials, goods or work
does not prevent the SO from disapproving the same. The second is that
should the Contractor dispute any act of the SO's Rep, the Contractor
may refer the matter to the SO who shall confirm. reverse or vary the act
3
4
S
6
7
For definition of Employer. see cl t.l(m).

For definition of Contract, sec cl I. l(d)
For definition of Appendix. see cl I. I (a).
For definition of Contractor, see cl 1.1(f).
For defin ition of Plant. see cl I. I (v).
26
27
Clause 2
Public Sector Standard Conditions of Comract for Co11s1rnc1ion Works 2005
Contractor
Contractor's obligations and liabilities

The Contractor's basic obligation in relation to the instructions given
either in writing or orally by the SO, SO's Rep and the assistants is
essentially to comply with them.8 Where they are orally given, the
Contractor can within seven days confinn these in writing to the SO who
in tum has seven days to contradict these in writing, failing which they
shall be deemed to be instructions of the S0. 9
By Clause 2.S(b), the Contractor is liable for the amount of any other
loss or damage suffered or incurred by the Employer as a result of the
Contractor's failure to comply with the instruction of the SO, SO's Rep or
the assistants. There is a similar provision under Clause 2.7 in respect of
urgent repairs which the Contractor failed to comply with the SO's
instruction.
Contractor's rights and remedies
Where duties or functions are delegated by the SO to the SO's Rep, the
acts in accordance with such delegation carry the same effect as though
they were done by the SO, with the proviso however that if the Contractor
disputes it, he shall then refer the matter to the SO who is expected to
either confirm, reverse or vary the act or decision of the SO's Rep. 10
It is also the Contractor's right to treat an oral instruction as a deemed
instruction under Clause 2.5 where the Contractor gives a written
confirmation of an oral instruction.
Employer
Employer's obligations a nd liabilities

As in all cases of an agency situation, whatever the SO does in pursuance
of the authority given to him binds the Employer including any
obligations or liabilities created. Clause 2.8(2) also affinns this position.
Superi111e11di11g Officer and Superi111e11di11g Officer's Represemative
Where the Contractor fails to comply with an instruction of the SO

within 14 days, the Employer has the option of employing others to do
whatever is necessary to give effect to such instruction, and to recover
any cost, loss and expense and damage incurred or suffered in connection
with it, 11 and to recover these from the Contractor. 12
If the SO, the SO's Rep or the assistant fails to exercise any of his
powers under the Contract. the rights of the Employer against the
Contractor are not prejudiced. Neither will this render the Employer
liable to the Contractor. 13
Superintending Officer
Role of the SO
Subject to any limitations on his a uthority, the SO's authority is expressly
set out by this clause as 'that stated in or necessarily to be implied from
the Contract' . 14 Any limitations should be set out in the Appendix in
relation to Clause 2.1. 1s The SO has no authority to relieve the Contractor
of any of his obligations under the Contract unless expressly allowed for
in the Contract. 16
Generally, the SO is empowered by this clause to delegate 17 any of the
duties or functions vested in him (subject to the limitations provided by
Clause 2.1) to a Superintending Officer's Representative (SO's Rep) who
shall be appointed by him. 18 Once delegated, any act done by the SO's
Rep carries the same effect as though it is done by the S0. 19 Both the SO
and the SO's Rep may in tum appoint in writing any number of assistants
to assist the SO's Rep in the carrying out of his duties. 20 If such assistants
are to have any authority to issue instructions to the Contractor, the SO
must authorise this in writing.
The authority of the SO to disapprove any Plant, materials, goods or
work, or to instruct for rectification, is not prejudiced by any failure of the
SO's Rep to disapprove the same. rn the event that any act of the SO's
Rep is disputed by the Contractor the matter shall be referred to the SO
who shall then either confirm, reverse or vary the act or decision of the
SO's Rep. 21
Employer's rights a nd remedies

The Employer's rights and remedies against the Contractor are as stated
in the Contract. It is expressly affirmed in Clause 2.1 that the SO has no
authority to reduce or remove the Employer's right. Hence it is expressly
stated that the SO has no authority to relieve the Contractor of any of his
obligations under the Contract.
8
9
I0
See cl 2.5.
See cl 2.5.
See cl 2.3(b).
11
12
13
14
15
16
17
18
19
20
21
See cl 2.6(a).
See cl 2.6(b).
See cl 2.8(1 ).
See cl 2.1(1).
See cl 2.1(1)
See cl 2.1(2).
See cl 2.3.
See cl 2.2.
See cl 2.3.
See cl 2.4.
See cl 2.3(b).
28
29
Public Sector Swndard Co11dirio11s of Co11trac1 for Co11srruc11011 Works 2005
Where instructions are given by the SO, these shall be in writing.

Where they are given orally for any reason, they can still be confirmed in
writing and such confirmation will be deemed to be an instruction under
the clause. 22 If the same is confirmed by the Contractor in writing, the SO
has seven days to contradict this in writing, failing which the oral
instruction will be deemed to be an instruction of the SO. These same
provisions are equally applicable to instructions given by the SO's Rep
and any assistants of the SO or SO's Rep.23
An important feature of this clause is the provision that the SO, the
SO's Rep or any assistant is not under any obligation or duty to the
Contractor to exercise any of his powers under the Contract. Neither are
the rights of the Employer against the Contractor prejudiced if there is a
failure to do so. 24
Role of SO's Rep
The SO's Rep is to carry out any of the duties or functions vested in the
SO other than those listed in the Appendix pursuant to Clause 2.1 which
have been delegated to him by the SO and not subsequently revoked.
Role of assistants
The role of assistants is to assist the SO's Rep in the carrying out of his
duties. However, they shall have no authority to issue any instructions to
the Contractor save insofar as such instructions may be necessary to
enable them to carry out their duties and to secure that the Plant,
materials, goods or work are in accordance with the Contract.
Cross References
The only other contract document expressly referred to in this clause is
the Appendix.
22
23
24
See cl 2.5.
See cl 2.5.
See cl 2.8(1 ).
JO
Clause 3 - Contract Documents
Generally
Parties may choose to enter into oral contracts. written contracts or part
oral and part written contracts. IL is usual for parties to enter into written
contracts in respect of building and construction contracts as each party's
consideration is not simple and therefore it may not be practical to have
an oral contract to describe the same. Consequently the standard form of
building and construction contracts came about. However, the standard
form is not the only document.
Two other documents usually form part of the set of contract
documents that bind the parties. These are the drawings and
specifications from which the builder will construct the structure(s)
depicted in the drawings and using the materials described in the
specifications.
In addition, there may be another document known as the bills of
quantities which contain the quantities measured in accordance with the
applicable Standard Methods of Measurement and the rate and amount of
each measured item. Alternatively, there may be a schedule of rates of
items of work. There may also be other documents containing other terms
of the contract which the parties agree to after some negotiations.
As variations may be said to be inevitable in any building and
construction contract, there may be a need to issue further drawings and
specifications. It is also not unusual that further drawings and
specifications are issued as a result of inadequate details in the original
set of drawings and specifications.
The importance of the contract documents cannot be understated as the
final product is dependent upon the ability to manifest design in terms of
drawings and specifications, while the allocation of risks in terms of legal
obligations and liabilities on the one hand and rights and remedies on the
other are set out in the standard form containing the terms and conditions
of the contract. Hence seeking the intended meaning from the documents,
whether in text or drawing, is important.
Where special conditions are added to standard forms of contract,
a canon of construction accepts that 'greater weight must be given to the
special conditions, and in case of conflict between the general conditions
31
Public Sector Standard Conditions of Contract for Constr11ction Works 2005
Clause 3 - Co111ract Doc11me111s
and the special conditions, the latter will prevail' .1 It is also open to the
parties to exclude any rule of interpretation, eg the contra profer~ntem
rule. Although generally no special priority is accorded to any parucular
document within a set of contract documents, this does not however
prevent standard forms from attempting to accord some priority to certain
documents by expressly providing for it.
Another important function of the drawings and si><:cifications a~d
further drawings and specifications is to allow the parties to ascertam
changes from the original scope of work with a view to ?perate ~e
variation provisions. Related to this p~int are th~ documents .Like the. bills
of quantities and schedule of rates which contam rates of pnces of items
of work and materials which would be relied upon to calculate the cost of
the variation.
The final point is the question of confidentiality and the protection of
intellectual property in the subject matters contained in the contract
documents.
construed as a whole and no special priority other than that accorded by

law or expressly provided in the Contract documents shall apply to any
one document or group of documents nor shall the contra proferentem
rule apply to this Agreement'.
The second sub-clause has two limbs. Clause 3.2(1) provides that the
Drawings shall remain in the sole custody of the SO. By Clause 1.1(1)
'Drawings' means the drawings referred to in the Contract including such
drawings which have been prepared by the Contractor and accepted by
the SO pursuant to Clause 6.2 and such other drawings as may from time
to time be issued or accepted in writing by the SO. However, the SO must
provide the Contractor with four copies of the Drawings free of charge.
Subsequently, the Contractor must make any further copies at his own
cost. It is expressly stated the Drawings, Specifications and other
documents are to be used for the purpose of the Contract and cannot be
used by or communicated to any third party.
In the second limb, Clause 3.2(2), the situation is reversed where the
Contractor is required to carry out design of any part or the whole of the
Permanent Works.9 In this case, the Contractor must supply the SO with
six copies of all Drawings, Specifications and other documents submitted
and accepted by the SO pursuant to C lause 6.2 as prescribed. There is
also provision for the supply of further copies for the use of the
Employer 10 who must bear the cost of such copies.
The next sub-clause, 3.3, is a short provision. It is expressly provided
that one copy of the Drawings must be kept on the Site for the inspection
and use by the SO or by any other person authorised by the SO in writing.
The issue of further drawings, specifications and other information is
dealt with by the next three sub-clauses. Clause 3.4 gives the Contractor
the right to request for further drawings, specifications and other
information as prescribed. The notice given by the Contractor to the SO
must also state the consequences in terms of delay to the progress or
completion of the Works or any part and any financial consequences
should the SO not comply with the Contractor's request.
Clause 3.5 regulates the situation where it is the SO who decides to
issue furt her or revised drawings. specifications or instructions that are
necessary for the purposes of the execution and completion of the Works.
It expressly provides that the Contractor is bound by these documents.
The last sub-clause, 3.6, give~ the Contractor the right to claim for
extension of time and Loss and Expense 11 as prescribed should the
progress or completion of the Works or any part has been materially
affected.
Intenti on of the Cl ause
This clause has six sub-clauses. It regulates the use of contract

documents. By Clause 1.1(d) 'Contract' means the Conditions2 and
Appendix,3 the Specifications,4 Drawings,5 Schedule of Rates (if any),
7
Bills of Quantities (if any), the Tender,6 Letter of Acceptance,
Agreement and such other letters and docu~ents as the parties may
expressly identify in writing and agree as fonnmg PCU:t .of the contra~!. By
Clause l.l(c) 'Conditions' means the Standard Cond1ttons and Particular
Conditions (if any) of Contract for Construction Work contained in the
Contract and Option Modules specified in the Appendix.
By the first sub-clause, 3.1, the several documents forming the
Contract are to be taken as mutually explanatory. However, if there is any
conflict or inconsistency between the Contract and the other documents,
the Conditions must be given precedence. Further, within the Conditions,
the Particular Conditions must be given precedence. Related to this subclause is Clause 4.4( 1) which provides for the Superintending Officer
(SO)s to interpret the documents where there is any ambiguity.
discrepancy, conflict, inconsistency or omission in or between any of the
Contract documents. Also related to this is Article 3 of the Agreement
which provides that 'The aforesaid documents shall be read and
J
2
3
4
5
6
7
8
Lewison. K. The /11rerprera11on ofComracts (3rd ed. 2004. Sweet& Maxwell) p 162.
For definition of Conditions, see cl I I (c).
For definition of Appendix. see cl 1.l(a).
For definition of Specifications, see cl I. I (aa).
For definition of Drawings. see cl 1.1 (I).
For definition of Tender. see cl I. I (ad).
For definition of Lel!er of Acceptance, see cl I. I (p).
For definition of Superintending Officer, see cl 1. l(ab).
32
JO
Il
For definition of Pennanent Works. 'ee cl I. I (u).

For definition of Employer.see cl I l(m).
For definition of Loss and Expense. 1>ee cl I. I (q).
33
Public Sector Standard Conditions of Co111ract for Comtructio11 Works 2005
Clause 3
Comract Doc11111e111s
Contractor
Employer
Contractor's obligations a nd liabilities
Employer's obligations and liabilities
Use of the Drawings, Specifications and other documents provided by the

Employer or the SO is strictly restricted to the purposes of the Contract
and the Contractor shall not use or communicate them to a third party
without the consent of the S0. 12
In relation to Drawings, the Contractor is responsible for the
following:
Should the Employer require copies of Drawings, Specifications and

other documents in respect of the Works in wh ich the Contractor is
res~onsible for the design. the Employer is liable to pay the cost of such
copies.
(I)
(2)
The_ Empl?yer is also liable to the Contractor in respect of any

extension of ume and Loss and Expense given to the Contractor pursuant
to Clause 3.6.
making further copies of the Drawings as required by himself:'3 and

keeping one copy of the Drawings on site. 14
Where further drawings are or information is required to be provided

under the Contract, and where drawings are or information is required by
a specific time in order not to delay or disrupt the planning or execution
of the Works, the Contractor is to give adequate notice in writing to the
SO accordingly. 15 Such notice must state also whether the need for the
information was shown on the programme furnished by the Contractor
and accepted by the SO under Clause 9 (Programme for the Works). The
consequences in terms of delay and any financial consequences should
the SO not comply with any of the requirements of the notice are to be
stated in the notice.
Where further or revised drawings, specifications or instructions are
issued by the SO to the Contractor, the Contractor is required to carry
them out and will be bound by the same. 16
The Contractor's remedies in respect of non-compliance and/or nonperformance by the SO are found in both extension of time and loss and
expense if progress or completion of the works has been materially
affected. Non-receipt of the necessary information in accordance with
Clause 3.4 is one of the qualifying events for extension of time under
Clause 14.2(1) and one of the reasons that will entitle recovery of Joss and
expense under Clause 22. 1(e). In these instances however, the Contractor
must have complied with the necessary requirements under the respective
Clauses 14 (Time for Completion), 23 (Procedure for C laims) and 32
(Progress Payments and Final Account).
12
13
See cl 3.2(1).
See cl 3.2( I).
14 See cl 3.3.
IS See cl 3.4.
16 See cl 3.5.
Role of the SO
By Clause 3.2, the SO is to be the sole custodian of the Drawings.
Further, the SO is empowered to give consent to the Contractor in respect
of the use by and commu nicauon to third a party. The SO is to write for
further copies of Drawings. Specifications and other documents in
respect of the Works which are designed by the Contractor in accordance
with Clause 6.2.
. Beyo~d the b_asic set of Contract Documents, the SO is required from
t:Ime to time to issue to the Contractor such further or revised drawinos.
specifications or instructions necessary for execution and completion of
the Works. 17
~hile the SO is expected to comply with the requirements of any
notice for further drawings and information under this clause, there is a
proviso that such notice must be given in sufficient time for the SO
reasonably to prepare and issue the information required. a
Where his non-compliance and/or non-performance has led to the
progress or completion of the works being materially affected. the SO
may grant an ex tension of time pursuant to Clause 14 and may certify for
Loss and Expense pursuant to Clause 32.19
Cross References
The clauses expressly referred to in this clause are Clauses 6.2
(Submission of Documents Prior to Commencement),20 9 (Programme
17 See cl 3.5.
18 See cl 3.4.
19 See cl 3.6.
20 See cl 3 2(2)
)
34
p 11b/ic Sector Standard Conditions of Contract for Co11str11c1io11 Works 2005
for the Works),21 14 (Time for Completion), 22 23 (Procedure for

Claims),23 and 32 (Progress Payments and Final Account). 2~
'Contract' is mentioned in Clauses 2. 1, 2.7, 4.1, 4.3, 4.4( I), 4.4(3), 4.5,
4.6, 4.7, 6.1, 6.2, 7.2, 9.1 (1), 9.3. 9.4, 10. l , 10.3, l 0.4, 10.5( 1), I 0.6, 10.7,
l l.l , 11.4, 12. 1, 12.2, 12.5( 1), 13.1(2)(a), 13.2, 14.2(g), 14.2(111), 14.2(g),
14.3(3), IS.I, 16.1(1), 16.2, 16.3, 17.l(l)(a), 17.3(l)(b), 17.3(1)(c), 18.1 ,
18.2(c), 18.4, 18.5, 19.l , 20. 1, 22. l , 22.2, 23. l(l ), 24.2, 25.1(1),
25.1(3)(a), 25.1(3)(c), 25.2(b), 25.2(c), 27.1( 1), 27.2( 1). 28. 1(4), 29. 1(1 ),
30. J, 30.2. 3 I. I ( 1), 31.l (2), 31.1 (2)(b), 31.2(1 ), 31.2(2), 31.4(1 ),
3 l.4(2)(a), 32.1 (1), 32.2( l), 32.5(3), 32.5(7), 32.6, 32.7(2), 32.2, 34.1(1 ),
34. 1(2), 34. l (3 ), 34.2( I )(a), 34.3, 34.4, 35.1, 36. l and 36.2(3).
Clause 4 - General Obligations of the Contractor
Generally
21
22
23
24
The Contractor's general obligations represent the Contractor's part of

the bargain in a building and construction contract, that is, the
consideration supplied by the Contractor. Whilst the final product is a
completed structure, the detai ls of the contractor's obligations cover from
matters directly relating to the Works (ie design, workmanship and
materials to bring to completion the Works and rectification of defects
relating to the work) to the control, selectio n and co-ordination of
processes like site operation and methods of construction within a
framework of employees, subcontractors, government agencies and
contractors engaged by the employer all under the scrutiny of the
Employer's agent either an Architect, Engineer or Superintending Officer
(SO). Tbere is also the other aspect where obligations are imposed on the
contractor to avoid having to incur unnecessary costs. This may take on
various forms. The common ones include a warranty given by the
contractor as regards the sufficiency of his tender and that there is no
infringement of intellectual property rights. There may also be an
obligation imposed on the contractor to obtain a performance bond to
ensure that the employer is not put out of pocket should the contractor
breach the contract.
In the case of a traditional contract, a Contractor is responsible for the
construction, completion and maintenance of the Works during a
specified defects liability period including any design allocated to any
nominated subcontractor. In addition, the Contractor is made responsible
for site operations, methods of working and temporary works. In the case
of a design-and-build contract, everything 1s done by the Contractor
including the entire design of the permanent works.
To produce any item of work, its design. materials and workmanship
are required. In a traditional conlract, design is usually provided by the
employer with possibly a limited scope of design being allocated to a
nominated subcontractor. In a design-and-build contract, the design
obligation rests with the contractor. Materials and workmanship are
usually provided by the contractor either by himself or by his
subcontractors through vicarious performance. To carry out and complete
See cl 3.4(b).
See cl 3.6.
See cl 3.6.
See cl 3.6.
36
37
Clause 4 - General Obligations ofrhe Co111racror
Public Sec/or S1011dard Conditions of Co111rac1 for Cons1ruc1io11 Works 2005
the Works, the contractor has to provide the necessary materials, labour,
plant and equipment, and superintendence and site co-ordination, and has
to choose the methods of working and site operation required
appropriately under the circumstances.
Unless otherwise provided, the contractor must use reasonable care
and skill to carry out his work and he must supply materials that are of
good quality and be reasonably fit for the purpose for which it is used.
Thus, in Management Corporation Strata Title Plan No I 166 v Chubb
Singapore Pte Ltd, 1 GP Selvam J held that '[t]he standard of due care and
diligence, that is the standard of reasonable care and skill, is selfexplanatory. The standard is applicable to contracts for works and
services where the predominant feature is the application of mental or
physical effort and experience'. It was further held (at pp 563 and 564)
that 'A contract for work and materials is a contract the subject matter of
which is the perfol111ance of services, even though it incidentally includes
the sale or supply of some goods. Performance of work and services is the
primary contract. It is well accepted that a contract for the construction
or renovation of a land structure is a contract for work and materials and
not sale or supply of goods. It is settled law that according to the
principles of the common law, in a pure contract for work and materials
the following warranties will be implied into it: (a) that the materials used
wi ll be of good quality (equivalent to merchantable quality in sale or
supply of goods contracts); (b) that the materials are reasonably fit for the
purpose for which they are used (equivalent to fitness of purpose of
purchase in sale or supply of goods contracts)'.
However, where the performance of the contract is subject 'to the
satisfaction of the SO', there is no room for any objective standard as the
view of the particular SO is the prescribed criterion. 2
This clause has seven sub-clauses. This clause identifies the general
responsibilities of the Contractor. 3 Related to this Clause is Clause 25
(General Responsibilities). Thus, first sub-clause, 4.1. is an elaboration of
Article 4 of the Agreement which provides that 'the Contractor hereby
covenants with the Employer to design (to the extent provided for by the
Contract5 ) execute and complete the Works6 and remedy any defects
therein in conformity with all respects with the provision of the Contract'.
lt expressly states that it is the Contractor who provides all
I
2
3
4
5
6
[ 1999] 3 SLR 540 at 560.

See Loke Hong Kee (S) Pee Ltd vU1111ed 01erseas Land Lid ( 1982) 23BLR 35 at 45
For definition of Contractor, see cl l.l(f).
For definition of Employer, see cl I. I (m).
For definition of Contract. see cl I.I (d).
For definition of Works, see cl l. l(ag).
38
superintendence, labour, Plant, 7 Construction Equipment,8 materials,

goods and all other things, whether of a temporary or permanent nature. It
ends off with a reminder that the obligation imposed by the common law
on the Contractor to complete the works is not affected by the provision
of this sub-clause.
Clause 4.2 then elaborates on the Contractor's obligations as regards
site operations and methods of working. The Contractor must ensure that
the two arc adequate, stable and safe except where the design of any
Pennanent Works9 or Temporary Works 10 are not prepared by the
Contractor or any sub-contractor or supplier.
In addition, the next sub-clause. 4.3, imposed on the Contractor a twofold obligation to firstly, make good any damage, loss or injury suffered
by the Employer by reason of any breach of contract, repudiation, default
or failure on the part of any subcontractor or supplier whether nominated
or privately engaged by the Contractor, and secondly, to indemnify the
Employer against all and any loss, expense, costs, damages, liability or
claim arising therefrom.
The fourth sub-clause, 4.4, has three limbs. The first limb, 4.4(1),
imposes an obligation on the Contractor to notify the S0 11 in writing
forthwith when the Contractor finds at any time, any ambiguity,
discrepancy, conflict, inconsistency or omission in or between any of the
Contract documents. In tum, the SO is obliged to resolve the same insofar
as it may affect the execution or completion of the Works. There is also a
contractual remedy given to the Contractor to claim for Loss and
Expense 12 if these could not have been reasonably foreseen by an
experienced contractor, assuming there was a diligent perusal of the
documents. Accordingly, the Contractor may also be entitled to an
extension of time. In the second limb, 4.4(2), if arising from any
instruction, given by the SO in response to the Contractor's !'lotification
given pursuant to Clause 4.4(1), there results in a reduction of the
Contract Sum, the same is to be reduced in accordance with Clauses 20
and 32. The last limb is a caveat following the preceding sub-clause. The
entitlement to extension of time and Loss and Expense is subject to the
situation where it could not have been found prior to the date of the Letter
of Acceptance. 13 If it could have been found but is not found, it would
nevertheless be deemed to have been found.
Clause 4.5 has four limbs. The first limb, 4.5( I), requires the
Contractor to deposit with the Employer, an amount specified in the
Appendix within 14 days of the Letter of Acceptance. This is described
7
8
9
10
11
12
13
For definition of Plant, ~ee cl I. I (v).

For definition of Construction Equipment, see cl I I (g).
For definition of Pennanent Works, see cl l.l (u).
For definition of Temporary Works, see cl J. l(ae).
For definition of Superintending Officer, see cl I I (ab).
For definition of Loss and Expense, see cl I. l(q).
For definition of Letter of Acceptance. see cl I.I (p)
39
as an amount that is to act as security for the due performance of and

observance by the Contractor of his oblig~tions under the Contract.
Related to th is limb is Clause 31.1(2)(c) which allows the Emplo~er to
terminate the employment of the Contractor if the Contractor fa1 ~s to
provide the security deposit as required by Clause 4.5. The second l.1mb,
4.5(2), gives the Contractor an alternative. The Contractor may pr?v1de a
guarantee for an equivalent amount from a bank or insurer.
A Performance Guarantee form is found in the Supplement to the
standard form. The third limb describes how the Employer may use the
Security Deposit. It is expressly provided that the Employer may use the
amount to make good any loss or damage sustained or likely to be
sustained as a result of any breach of contract whatsoe~er by the
Contractor, including liquidated damages. T?is limb also provides for the
return of any balance of the amount deposited .to t~e Contractor or ~e
bank or the insurer as the case may be. The last ltmb 1s a c.aveat l~ renund
the Contractor that the Employer's rights and remedies ~gain.s t the
Contractor remains in tact despite the right given by the preceding ltmb to
. .
..
make use of the amount deposited.
By Clause 4.6, the Contractor is prevented from. cla1mmg. add 1 t1on~!
payment resulting from any incorrectness or insufficiency of his Tender
as it 1s deemed that the Tender covers all his obligations under ~e
Contract and all matters and things necessary for the proper constructlon
and completion of the Works. By Clause l.I (ad) Tender' m~an s the
Contractor's offer to the Employer to design (lo the extent provided for
by the Contract), execute and complete the Works fo r a lump sum as
accepted by the Letter of Acceptance.
The last sub-clause, 4.7, expressly protects the Employer from the
consequences of infringement of intellectual property rights as described
in the sub-clause. The sub-clause imposes on the Contractor . the
obligati on to indemnify the Employer against all .claims a~d proceedings
for or on account of infringements of any patent nghts, design, tradem~k
name or copyright or other protected rights of any . Constru c ~on
Equipment, Plant, materials, goods or design used for or m co~nec uon
wi th or for incorporation in the Works. Second, the clause pro~1des. for
contractual remedies. The indemnity, however, does not cover s1tuat10ns
where the infringement results from compliance with the design or
Specification provided by the SO.
Clause 4 - General Obligations of the Co111ractor
(l)
(2)
design (to the extent provided for by the Contract), 16 execution and
completion of the works; and
remedy of any defects in the Works. 17
He must carry out the same: 18

(l)
(2)
(3)
with due care and diligence: 9

in accordance with the provision of the Contract: and
to the satisfaction of the SO. 20
1
It must be noted that Clause 4. l provides that although the Contract

expressly provides for the Contractor's responsibilities, the Contractor,
nevertheless, continues to be responsible under the common law to
complete the Works. However, under Clause 4.2. he is not responsible for
the design of the Permanent Works or for the design of any Temporary
Works not prepared by the Contractor or by any subcontractor or supplier.
The detai ls of the Contractor's general responsibilities consist of:
the provision of all superintendence, labour, plant,21 construction
22
equipment, materials, goods and all other things, whether of a
temporary or permanent nature required for such design, execution,
completion of the Works and remedying of any Defect;2J
(2) all site operations and methods of construction incl uding their
adequacy, stability and safety; 24
(3) the making good of any damage, loss or injury suffered by the
Employer by reason of any breach of contract, repudiation, default
or failu re, whether total or partial, on the part of any subcontractor
or supplier whether nominated or privately engaged by the
Contractor;2s and
( I)
(4)
the notification of any ambiguity, discrepancy, conflict,

inconsistency or omission in or between any of the Contract
documents that may at any time be found. The notification to the SO
must be forthwith. 26
16 See also cl 6 (Permanent Works Designed by the Contractor).

17
See cl 18 (Defec1s).
18 Sec cl 4. l.
Contrac tor
Contractor's obligations and liabi lities
Generally, the Contractor is responsible for:
14
15
For definition of Tender. see cl 1.1 (ad).

. ...
See cl 4.1. This clause should not be confu sed with cl 25 (General Respons1b1Lities)
which specifically provides for the Care of the Works.
40
19
See cl 14.2 (Extension of Time for Completion) where the term used is "due
diligence' and cl 31.l(c) (Temunation for Default) where the term used is "due
cliligenceand expedition'.
20
See cl 17. I (Certificate of Substantial Compleuon) For definition of SO. see

cl I. I (w).
For definition. see cl I.I (r).
For definition. see cl I. I (f)
See cl 4 .1. For definition o f Defect. see cl I. l(i).
See cl 4.2.
See cl 4.3.
See cl 4.4(1 ).
21
22
23
24
25
26
41
Public Sector Standard Co11dt11ons of Co111ract for Co11structio11 Works 2005
Clause 4 - General Obligations of tht Contractor
Further, as a guarantee to the Conlractor's performance, the ConLractor

must deposit with the Employer within 14 days of the Letter of
Acceptance, 27 an amount specified in the Appendix28 as and by way of
security for the due performance of and observance by the Conlractor o f
his obligation under the Contract. 29 Alternatively, he may provide a
guarantee for an equivalent amount from a bank or insurer approved by
the Employer and in the prescribed form. 30
The Contractor is also to provide two indemnities to the Employer. By
Clause 4.3, the Contractor is required to indemnify the Employer against
all and any loss, expense, costs, damages, liability or claim arising from
any breach of contract, repudiation, default or failure on the part of any
subcontractor or supplier. In addition, by Clause 4.7, the Contractor is
also to indemnify the Employer against all claims and proceedings for or
on account of infringements of any patent rights, design , Lrademark name
or copyright or other protected rights as described.
This remedy is limited by Clause 4.4(3). It is provided that '[n]othing

in Clause 4.4( I) or the Contract shall entitle the Contractor to an
extension of time or Loss and Expense or any other compensation or
remedy whatsoever (whethe r pursuant to the Contract or as damages or
otherwise in law) for any ambiguity, discrepancy, conflict, inconsistency
or omission in any of the documents which could have been found prior
to the date of the Letter of Acceptance and the Contractor shall be
deemed to have found it and to have entered into the Contract with full
knowledge of it and of any resolution of it'.
By Clause 4.5(3). the Contractor is entitled to receipt of the balance of
the money deposited with the Employer that has not been used as
prescribed.
Employer

In this clause, there is a general provision to limit the Contractor's claim
and a specific provision to allow the Contractor to make a claim subject
to the condition prescribed.
Thus, in the event that the Contractor makes a claim against the
Employer for additional payment, such a claim must be made in
accordance with the Contract. ln particular, Clause 4 .6 provides that the
ConLractor's Te nder31 'shall be deemed Lo cover all his obligations under
the Contract and aJJ matters which shall be for the proper construction
and completion of the Works' subject to Clause 5.2 (Artificial
Obstructions). Therefore, he cannot claim for something which had
already been provided for.
Where an instruction has been issued by the SO pursuant to
Clause 4.4( I) to resolve an ambiguity, discrepancy, conflict,
inconsistency or omission, the Contractor may claim for Loss and
Expensen and an extension of time as prescribed. Thus, a Loss and
Expense claim may be submitted for the SO's consideration when, in the
opinion of the Contractor, compliance with the SO's said instruction is
likely to involve or has involved the Contractor in any Loss and Expense
which could not have been reasonably foreseen by an experienced
contractor (assuming a di ligent perusal of the documents submitted prior
to the Contract) ..n
27
28
Fordefiniuon. see cl l.l(n).

For definition. see cl I . I (a).
29 See cl 4.5( I).
30 See cl 4.5(2}.
31 For de finition. see cl l. I (y).
J2 For definition, see cl I. l(o).
33 See cl 4.4( I).
ln respect o f the Security Deposit, :w where the Employer decides to use

the amount guaranteed as a llowed. he is obliged to pay the balance of the
amount, without the addition of interest, to the Contrac tor or the bank or
insurer, as the case may be, upon issue of the Final Completion
Certificate. In the case where the Security Deposit is cash, the balance of
the amount is to be paid to the Contractor without interest upon the issue
of the Final Completion Certificate. Js
Employer's rights and remedies
The Employer is entitled to two indemnities from the Contractor. First,
the Contractor shall indemnify the Employer against all and any loss,
expense, costs, damages, liability or claim aris ing from any breach of
contract, repudiation, default or failu re. whether total or partial, on the
part of any subcontractor or supplier whether nominated or privately
engaged by the Contractor.'6 Second, the Contractor shall indemnify the
Employer from and against all claims and proceedings for or on account
of infringements of any patent rights, design, trademark name or
copyright or other protected rights in respect of any construction
equipment, plant, materials, goods or design (subm itted by the Contractor
pursuant to his obligations under the Contract) used for or in connection
with or for incorporation in the Works and from or against loss, expense,
costs or damages whatsoever in respect of such claims or proceedings or
in relation thereto, except where such infringement results from
compliance with the design or Specifications provided by the S0.'7
34
35
36
37
42
For definition. see cl 4.5(3)(i) and -l.5(3)(iil.

See cl 4.5(3 ).
See cl 4.3.
See cl 4.7.
43
Public Sector StaJ1dard Conditions of Contract for Construction Works 2005
Clause 4
Further, the Employer is entitled to a reduction in the Contract ~u~ in

the event that the instructions issued by the SO to resolve any ambtgutty,
discrepancy, conflict, inconsistency or omission pursuant to subclause 4.4( 1) results in such a reduction in the Contract Sum. 38
In addition, the Employer is entitled to utilise the Security Deposit to
make good any loss or damage sustained or likely to be sustained as a
result of any breach of contract whatsoever by the Contractor, including
any liquidated damages. 39 However, where the Contractor fails to provi~e
the security deposit in accordance with C lause 4.5, the Employer 1s
entitled to terminate the Contract.40
The provisions of this clause shall not affect the rights and remedies
expressly reserved herein to the Employer or bar the E~ployer
claiming loss, expense, costs or damages inc u1Ted or sustam.e d or likely
to be sustained by the Employer as a result of any breach of contract of
whatsoever nature by the Contractor. 41
General Obligat1011s of 1he Co111ractor
Cross References
The clauses expressly referred to in this clause are 4.4( I) (Responsibility

for Identifying Ambiguities, Discrepancies, etc), 45 4.5(1) (Security
Deposit),46 4.5(2) (Security Deposit),47 5.2 (Artificial Obstructions),48 14
(Time for Completion), 49 20 (Valuation of Variations), 50 23 (Procedure for
Claims)51 and 32 (Progress Payments and Final Account). 52
Clause 4. 1 is mentioned in Clause 26.2; while C lause 4.2 is mentioned
in Clause 5.2. Further, Clause 4.4 is mentioned in Clause 22. l(f) and
Clause 4.5 is mentioned in Clause 31.1 (2)(c).
!rom
Superi ntendi ng Officer
Role of the SO
When the SO receives a notice from the Contractor about any ambiguity,
discrepancy, conflict, inconsistency or omission in or between any_of the
Contract documents, he, insofar as it may affect the execution or
completion of the Works, must explain and adjust it and may issue to the
Contractor an instruction so as to resolve the same.
In connection with this, the SO must consider, where applicable:
( J)
(2)
the Contractor's claim for Loss and Expense41 and extension of

time; 43 and
arising from his instruction which causes a reduction in the Contract
Sum:
(a)
(b)
38
39
40
41
42
43
44
he must determine such reduction in accordance wi th

Clause 20 (Valuation of Variations); and
he shall be e ntitled to reduce any valuation of the Works in
accordance with Clause 32 (Progress Payments and Final
Account).44
See cl 4.4(2).
See cl 4.5(3).
See cl 31. 1(2)(c).
See c l 4.5(4).
See c l 32 (Progress Payment and Final Account).
See cl 4.4( I). For extension of !Jme, see cl 14 (Time for Completion).
See cl 4.4(2).
44
45
46
47
48
49
50
51
52
See cl 4.4(3).
See cl 4.5(2) and 4.5(3)(i).
See cl 4.5(3)(ii).
See cl 4.6.
See cl 4.4( 1).
See cl 4.4(2).
Seecl4.4( 1).
See cl 4.4( 1) and 4.4(2).
45
Clause 5 - Sub-surface and Ground Conditions
Generally
Construction and building works may be divided into two types for
discussion in this chapter. First, the execution and completion of the
works may take place without any obstruction. eg construction above
ground where there is no existing structures. Second, the execution and
completion of the works is carried out in a situation where an existing
structure has to be removed before the commencement of the works or
where the work is carried out on ground where the soiJ or whatever exists
in the soil would have to make way fo r what is to be constructed in the
ground.
What is in the ground may be naturally occurring or a man-made
object placed in the ground. Where it is the latter. the man-made object
may still be in use. It can be a water pipe or a sewer. Therefore, the
condition of the ground would affect the method of construction required
to carry out the works and the level of difficulty in which such works are
carried out. It has a direct bearing on the cost of construction.
Hence, it would reduce the risk of pricing a tender, if what is in the
ground is known. As far as man-made objects are concerned, there ought
to be as-built drawings of services and other records of the presence of
such man-made objects. However, in practice, it is not uncommon to find
that such information is unavailable or may be inaccurate. As regards
what naturally exists in the ground, experience has shown that sample
bore holes may not adequately reveal the profile and composition of what
is in the ground . Until new technology is available that is cheap and
reliable, the risk of encountering unforeseeable ground condition is there.
That being the case, parties to a building and construction contract that
require underground works have to allocate the risk of encountering
unforeseeable ground conditions. In many instances, the contractor is to
bear any extra cost arising from this encounter. However, some have
chosen to identify certain parts of this risk and to compensate the
contractor in a limited way. If the latter is pursued, then a mechanism for
the contractor to claim including a prescribed way of assessment of the
amount of compensation must be provided.
47
Public Sector Sta11dard Co11ditio11s of Comract for Co11struction Works 2005
Clause 5 - Sub-surface and Ground Conditions
Contractor
This Clause has lwo sub-clauses. C lauses 5. 1 and 5.2 have been amended
while Clause 5.3 is a new clause inserted by the 2004 edition. The 2004
edition inserted in Clause 5.1 the provision that geotechnical information
may be provided by the Employer' but the. Con~act?r2 is not relieved of
his responsibility to carry out his own mvest1gat1ons: In Cla~s~ 5.~,
'artificial obslructions' was replaced by 'adverse physical conditions .
Further, the definition of the latter term is given in Clause 5.2. Clause 5.3
provides for underground services.
In the first sub-clause, 5.1 , inspection and examination of the site and
its surroundings is primarily the duty of the Contractor and he is deemed
to have done so before he submits his tender.3 The Contractor must have
satisfied himself as to the nature of the ground and the sub-soil and the
form and nature of the Site4 before submitting the Tender. 5 It is further
provided that the Employer may provide geotec.hnical info:11ation
concemin" the Site although the Contractor re mains responsible for
carrying o"'ut his own investigation and/?r search for exi~ting and oth~r
additional information relevant to the Sile. Related to this sub-clause is
C lause 4.6 which provides that the Contractor must be satisfied that his
Tender is able to cover all his obligations under the Contract.
The next sub-clause. 5 .2, provides for the Contractor to claim both
ex tension of time and Loss and Expense if the Contractor encounters
adverse physical conditions in the prescribed cir~ums ta_nces. Adverse
physical conditions is defined in this sub-clause as mcludmg ~nfores~en
sub-surface and ground conditions and all underground services ~hi~h
are in use. The conditions imposed on the Contractor to succeed m his
claim are that the adverse physical conditions could not have been
reasonably foreseen by an experienced contrac~or and that ~e Contractor
is of the opinion that additional cost will be incurred which would not
have been incurred if such adverse physical conditions had not been
encounte red. The Contractor must also comply with the requirements of
C lauses 14. 23 and 32.
Jn the last sub-clause, the Employer may provide information on
underground services obtained from the relevant service providers to ~e
Contractor. However, there is a caveat which protects the Employer rn
that the Contractor is not relieved of his responsibility of engaging
licensed cable/services detection workers to carry out all cable/services
detection work. Further, the Contractor is to bear all costs and charges in
respect of any damage to the underground services.
2
3
4
5
For definition
For definition
See cl 5.1.
For definition
For definition
of Employer, see cl I. I (rn).

of Contractor. see cl I. l(f).
of Site, see cl I. I (z).
of Tender. see cl 1.1 (ad).
48
The basic obligation of the Contractor is to satisfy himself as to:

(1)
(2)
the nature of the ground and sub-soil, and

the form and nature of the Site,
and to obtain for himself all necessary information as to risks,

contingencies and all other circumstances influencing the Tender before
submitting the Tender.6 He is deemed to have inspected and examined the
Site and its surroundings in so doing. Further, the Contractor is
responsible for carrying out his own investigations and/or search for
existing and other additional geotechnical information relevant to the
Site.
If the Contractor encounters adverse physical conditions in the course
of his sub-s urface works for which he intends to make any claim, he must
immediately give notice in writing to the Superintending Officer7
pursuant to Clauses 14 and 23. The conditions to be satisfied in such
event are as follows:
(1)
(2)
the adverse physical conditions are those which could not have been
reasonably foreseen by an experienced contractor; and
the Contractor is of the opinion that additional cost will be incurred
which would not have been incurred if such artificial obstructions
had not been encountered.8
However, the sub-surface works that this clause relates to must not be
those that form part of Works9 for the design of which the Contractor is
responsible under Clause 6.1 (Contractor's Design Responsibility).
Artificial obstructions are also deemed to exclude all underground
servi ces which are in use or would be in use.
As soon as possible after the giving of the notice, the Contractor is
expected lo follow up with a number of actions hy giving details of:
( J)
(2)
(3)
the anticipated effects of such artificial obslructions;

the measures he is taking or is proposing to take; and
the anticipated delay in or interference with the execution of the
Works. 10
It would appear from Clause 5.3 that the Contractor remains responsible
for engaging licensed cables/services detection workers to carry out all
cable/detection work regardless of whether information on underground
6
Seecl5. I.
For definition of Superintending Officer. see cl I. I (ab).
8 See cl 5.2.
9
For definition Works, see cl I. I (ag).
IO See cl 5.2.
7
49
Pttblic Secror S1a11dard Co11ditio11s of Co111rac1 for Co11str11c1io11 Works 2005
Clattse 5 - Sub-surface and Ground Co11di1io11s
services is given by the Employer to the Contractor. In any event, the

Contractor is liable for all costs and charges incurred whenever there is
any damage to the underground services.
and reasonable approved measures in the absence of such instructions. to

deal with the artificial obstructions.
Cross References

Where the artificial obstructions are, in the opinion of the SO, such that
they could not have been reasonably foreseen by an experienced
contractor, the Contractor is entitled to remedies in both extension of time
and loss and expense for complying with the SO's instructions and for
any proper and reasonable measures approved by the SO. Such
entitlement is subject however to the Contractor's compliance with
Clauses 14. 23 and 32. 11
The clauses expressly referred to in this clause are Clauses 4.2 (Site
Operations and Methods of Construction), 6.1 (Contractor's Design
Responsibility), 14 (Time for Completion), 23 (Procedure for Claims)
and 32 (Progress Payments and Final Account). 1 ~
Claus 5.2 is mentioned in Clauses 4.6, l 4.2(p) and 22.1 (g).
Employer

By Clause 5.2, the Employer would be liable to the Contractor in respect
of the extension of time and Loss and Expense granted as prescribed in
the sub-clause. In particular, the cost of diversion of underground services
would be borne by the Employer unless otherwise specified.
By Clause 5. I, the Employer has the right to give to the Contractor
Geotechnical information obtained from the site investigation, reports,
publications and/or journals concerning the site without affecting the
Contractor's responsibility for carrying out his own investigations and/or
search for existing and other additional geotechnical information relevant
to the Site. Similarly by Clause 5.3, the Employer has the right to give to
the Contractor information on underground services obtained from the
relevant service providers without affecting the Contractor's
responsibility for engaging licensed cable/service detection workers to
carry out all cable/services detection work.
Role of the SO
Essentially, the SO is required to make an assessment of whether the
adverse physical conditions are such that they could not have been
foreseen by an experienced contractor. lf he is of the opinion that this is
the case, the SO may grant an extension of time and certify a sum for loss
and expense for complying with his instructions and for taking proper
11
12 See cl 5.2.
See cl 5.2.
50
51
Clause 6 - Permanent Works Designed

by the Contractor
Generally
There are two different standards imposed on designers. First, where the
designer is offering his professional service in respect of design, he is
required to use reasonable skill and care to carry out his design work with
no guarantee that the finished product would perform the function
required by his client unless there are special circumstances recognised
by the Jaw as imposing upon him a higher standard of care. However, if a
contractor offers to design and build either by himself or through a subcontractor, then he warrants that the finished product is fit for the purpose
for which the structure is being built.
Thus in George Hawkins v Chry1sler (UK) Ltd and Burne Associates
(afirm), 1 Neill U said '[i]t is also clear that a professional man may be
liable on the basis of an implied warranty of fitness for purpose if his
contract extends not merely to design of an article, but also to its supply
or manufacture. (See, for example, Samuels v Davis [1943] KB 526.)
Furthermore it is now established that a contractor, who has agreed to
design and erect a building or other structure, may be liable for breach of
an implied warranty that the building or structure is fit for a particular
purpose, even though the contractor took no part in the design work,
which was carried out by a specialist sub-contractor (see IBA v EM!
[1980] 14 BLR I). ' I have come to the firm conclusion, however, that it
is not open to this court, except where there are special facts and special
circumstances, to extend the responsibilities of a professional man
beyond the duty to exercise all reasonable skill and care in conformity
with the usual standards of his profession.' 2
I
2
(1986) 38 BLR 36 at 55.

In the House of Lords case of /11depende111 Broadcasting Authority v EM/ Electronics
Ltd and BICC Construction Ltd (1980) 14 BLR I at 47, Lord Scannanheld that 'in
the absence of a clear. contractual indication to the contrary, I see no reason whyone
who in the course of his business contracts to design, supply, and erect a television
aerial mast is not under an obligation to ensure thatil 1s reasonably fit for the purpose
for which he knows it is intended lo be used.
53
Public Sector Standard Co11ditio11s of Contract for Constructio11 Works 2005
This clause has four sub-clauses. While this is a traditional contract and
not a design-and-build contract, it is nevertheless envisaged that the
design of the whole or part of the Permanent Works be given to the
Contractor. 3 By Clause l.l(u) 'Permanent Works' means the works of a
permanent nature (including Plant) to be executed in accordance with the
Contract.
The first sub-clause, 6.1, defines the responsibility imposed on the
Contractor where the Contract4 expressly provides that the whole or part
of the Permanent Works is to be designed by the Contractor. It is
expressly provided that the Contractor is fully responsible for the
suitability, adequacy, integrity and practicality of the design as set out in
the Drawings,5 Specifications, 6 manuals. calculations and other
information submitted for acceptance by the Superintending Officer
(S0)7 including any subsequent amendments. Related to this clause will
be Clause 4.7 (Patents, Trademarks, Copyrights, etc) where the
Contractor must defend, indemnify and save harmless the Employer8
from and against all claims and proceedings on account of infringements
of any intellectual property rights as prescribed.
By Clause 6.2, the Contractor is required to submit such Drawings,
Specifications, manuals, calculation and other information as may be
necessary to demonstrate the suitability, adequacy, integrity, durability
and practicality of such design. Further, the Contractor's design must be
accepted by the SO before the Contractor can commence work although
this acceptance does not relieve the Contractor of any of his
responsibility. In any event, acceptance by the SO does not relieve or in
any way limit the responsibility of the Contractor under Clause 6.1.
The next sub-clause, 6.3, regulates the documents which the
Contractor is required to submit at the Date of Substantial Completion9 as
prescribed. In particular, the Contractor must submit operation and
maintenance manuals together with Drawings of the Permanent Works
designed by the Contractor. They must be in sufficient detail to enable the
Employer to operate, maintain, dismantle, reassemble and adjust the
Permanent Works.
The last sub-clause, 6.4, prescribes the contractual remedy for any
deficiency of any kind or nature of the design. The sub-clause provides
that the SO may instruct the Contractor at any time, before, during or
after the execution and completion of the Works to amend or modify the
3
4
5
6
7
8
9
For definition of Contractor, see cl 1.1 (f).

For definition of Contract, see cl I. I (d).
For definition of Drawings, see cl I. I (I).
For definition of Specifications, see cl I. l(aa).
For definition of Date of Substantial Completion, see cl I. I (i).
54
Clause 6 - Penna11e111 Works Designed by the Contractor
design to address the said deficiency. Jn addition, the Contractor must

carry out such work as is necessary to give effect to such amended or
modified design in accordance with the SO's instruction, the cost of
which the Contractor must bear.
Contractor
Contrador's obligations and liabilities

The main responsibility of the Contractor is in respect of design of the
Permanent Works as regards its suitability. adequacy, integrity. durability
and practicality as set out in the Drawings, Specifications, manuals,
calculations and other information submitted for acceptance of the SO
under Clauses 6.2 and 6.3. 1 Further, under Clause 4.1, the Contractor
must use due care and diligence to carry out the design work.
Accordingly, the _Contractor cannot ex~cute any work designed by him
unless he has submitted and the SO has issued his acceptance in writing
of the Contractor's design. 11 This acceptance, however, does not relieve
or in any way limit the responsibility of the Contractor under
Clause 6.1. 12 A corresponding submission is required of the Contractor
upon the Date of Substantial Completion or the latest Date of Substantial
Completion if there is more than one such date. This time the Contractor
m~st subm_it to the SO the operation and maintenance manuals together
with Drawmgs of the Permanent Works designed by the Contractor as
completed.
In addition, the Contractor is required. if instructed by the SO, to
amend or modify the Contractor's design at any time, before, during or
after the execution or completion of the Works 13 and to carry out such
work as is necessary to give effect to such amended or modified design. 14
Sue~ work would not be considered as 'variation' as it is expressly
provided under Clause 19. l that variation would exclude any instruction
which has arisen due to or is necessitated by or is intended to cure any
default of or a breach of contract by the Contractor but which would
otherwise be a variation. Consequently, it is expressly provided that the
Contractor must bear the costs of all work necessary including re-design
work or variations required.
10
11
12
13
14
See cl 6. I.
See cl 6.2.
See cl 6.2.
For definition of Works, see cl I. I (ag).
See cl 6.3.
55
Clause 6 - Pen11a11ent Works Designed by the Co111ractor
Public Sector Standard Conditions ofC0111ractfor Co11stmctio11 Works 2005
Employer

In accordance with Lhe express provisions of Clause 6.4, while there is a
right on the part of the SO to instruct the Contractor to amend or modify
the Contractor's design in respect of any deficiency of any kind or nature
discovered by the SO. the Employer is under no obligation to pay nor is
liable 10 the Contractor for the cost of carrying out such the amendments
or modifications to the design as well as the cost to carry out any work to
give effect to Lhe amended or modified design.
It is expressly provided in Clause 6.3 that when the SO accepts the
Third, where the SO discovers any deficiency of any kind or nature in

the Contractor's design, he may decide to instruct the Contractor at any
time, before, during or after the execution or completion of the Works to
amend or modify the said design. In the event that the SO so instructs, he
must also instruct the Contractor to carry out such work as is necessary to
give effect to such amended or modified design in accordance with the
SO's instruction. 17
Cross References
The clauses expressly referred to in this clause are 6. I (Contractor's

Design Responsibility), 18 6.2 (Submission of Documents Prior to
Commencement) 19 and 6.3 (Submission of Documents after
Completion). 20
Clause 6.2 is mentioned in Clause 3.2(2).
Contractor's submission of operation and maintenance manuals together

with Drawings of the Permanent Works, they must be in sufficient detail
to enable the Employer to operate, maintain, dismantle, reassemble and
adjust the Permanent Works incorporating such design. Consequently, the
Employer would have a right to determine whether these criteria have
been satisfied.
Role of the SO
In this clause, there are three aspects of the SO's role. First, the SO must
consider whether to accept the Contractor's design or any subsequent
amendments. The criteria to be used by the SO to decide whether to
accept the Contractor's design are that the Drawings, Specifications,
manuals, calculations and other information must demonstrate the
suitability, adequacy, integrity, durability and practicality of the design.
Thus, until the criteria are met, the SO is not obliged to issue his
acceptance. 15
Second, the SO must consider whether to accept the Contractor's
submission of operation and maintenance manuals together with
Drawings of the Permanent Works designed by the Contractor. The
criterion to be used by the SO to decide whether to accept the
Contractor's said submission is that the submitted documents must be in
sufficient detail to enable the Employer to operate, maintain, dismantle,
reassemble and adjust the Permanent Works incorporating the
Contractor's design. Once this criterion is met, the SO must issue his
acceptance. 16
17
18
15
See cl 6.4.
See cl 6.2.
19 See cl 6.1.
20 See cl 6.1.
See cl 6.2.
16 See cl 6.3.
56
57
Clause 7 - Notices and Fees
Generally
The design, construction and completion of any building and construction
works are highly regulated primarily for health and safety reasons. In
addition, there are regulations in respect of water, electricity and gas.
There may also be prescriptions for height and even civil defence
shelters.
The Contractor has to comply with a whole range of statutes and
regulations relating to construction work in any typical construction
project. The governing legislation and subsidiary legislation, to name a
few, would include the Building Control Act, 1 Building Control
Regulations, Factories Act2 and Factories (Building Operations and
Works of Engineering Construction) Regulations.
The Contractor in pricing his tender is expected to incorporate the cost
of such compliances. Therefore. all fees and charges relating to
compliance with these are generally the responsibility of the Contractor,
and only in so far as they result in a need to vary the work that is not
foreseeable will they be dealt with as valid variations for which the
Contractor is paid. Thus. if the time for completion is long, it may be
possible that new laws may come about imposing requirements that has
not been envisaged by the Contractor at the time of tender.
This clause has three sub-clam.es. In the first sub-clause, 7 .1, all the
necessary notices required by any law, regulation or bye-law, or by any
public authority or public service company, relating to the Works, 3 are to
be complied with and given by the Contractor. 4 The clause spells out this
basic responsibility of the Contractor as well as his responsibility to pay
1
2
3
4
Cap 104, 1998 Ed.

Cap 29. 1999 Ed
For definition of Works, see cl l. l(ag).
For definition of Contractor. see cl I. I(!).
59
Clause 7 - Notices a11d Fees
and indemnify the Employer5 against any fees or charges imposed by the
said notices.
The second sub-clause, 7.2, provides for the situation where variations
from Lhe Drawings6 and Specifications7 are needed for such compliance.
It is provided that the Contractor cannot proceed with the work without
first giving a written notice to the Superintending Officer (S0). 8 It is
further provided that there may be a deemed variation situation to be
processed pursuant to Clause 19 and dealt with as such. if the variation
necessitated could not have been reasonably foreseen by an experienced
contractor at the time of submission of the Tender.
The third sub-clause, 7.3, is a unique provision since the PSSCOC
2005 edition is a standard form for public sector projects where the
Employer may very well be the body that is responsible for the
enforcement of the relevant law, regulations or byelaws. Accordingly, the
sub-clause makes it clear that the responsibility imposed by Clause 7. I
still applies even if the relevant written law is enforced by the Employer.
Further, the Employer would not be liable for any default or delay arising
from the enforcement or implementation of the written laws.
The Employer's obligations and liabilities, as set out in Clause 19, will be
applicable here under Clause 7.2 if there is a deemed variation situation.
It is also expressly stated by Clause 7.3 that the Employer would not be
liable for any default or delay arising from the enforcement or
implementation by the Employer of any law. regulation or byelaw.
Contractor
The Employer is entitled to an indemnity given by the Contractor against

all fees and charges imposed by law. regulation or byelaw. 13 The
Employer is also deemed not to be responsible or liable for any costs
imposed by such requirements, or for any default or delay by any public
authority in their enforcement or implementation of the law, regulation or
byelaw. 14
The Contractor, in relation to any law, regulation or byelaw, is required

to: (1) comply with them and give notices required; and (2) pay and
indemnify the Employer against any such fees or charges imposed.9
Where a variation is necessitated by compliance with the requirements
of the Clause, the Contractor is to give notice in writing to the SO. This
notice should specify and give the reasons for such variation as well as
apply for the necessary instructions from the SO. If such instructions are
not given by the SO within seven days from receipt of the Contractor's
application, the Contractor has to proceed with the Works in conformance
with the law and regulation. 10
Notwithstanding that the written law is enforced by the Employer or
where the public authority is, or is part of, the Employer, the Contractor is
still wholly responsible for the necessary compliance. 11 Furthermore, the
Contractor must also bear the consequence of any default or delay by the
Employer in the enforcement or implementation of any law, regulation or
byelaw.
5
6
7
8
9
10
JI

For definition of Drawings, see cl I. I (I).
For definition of Specifications, see cl I. I (aa).
For definition of Superintending Officer, see cl I. l(ab).
Seecl7.l.
Seecl7.2.
See cl 7.3.
60

If a variation that is necessitated by compliance is one which: (I) an
experienced contractor could not have reasonably foreseen at the time of
submission of the Tender; 12 and (2) is not required by or in consequence
of any deficiency or fault in the design of any part of the Works for which
the Contractor is responsible under the Contract, the said variation shall
be deemed as a valid variation under Clause 19 (Variations to the Works)
and dealt with accordingly.
Employer
Role of the SO
When the SO receives a notice in writing from the Contractor specifying
and giving the reasons for making a variation from the Drawings and
Specifications in order to comply with such legal or statutory
requirements, the SO has seven days to deal with the application and to
respond with the necessary instructions to deal with it. 15
Although not expressly stated, in order to determine whether the
variation should be classified as a deemed variation under Clause 7 .2, the
SO will have to assess whether any variation necessitated could have
been reasonably foreseen by an experienced contractor at the time of
submission of the Tender as well as decide whether or not the variation is
12
13
14
15
For definition of Tender. see cl l.l (ad).

See cl 7.1.
See cl 7.3.
See cl 7.2.
61
Public Sec/Or Siandard Conditions of Contract for Construction Works 2005
required by or in consequence of any deficiency or fault in lhe design of

any part of the Works for which lhe Contractor is responsible under the
Contract.
Cross References
Clause 8 - Setting Out
The clause expressly referred to in this clause is Clause 19 (Variations to

lhe Works). 16 Clause 7 .1 is mentioned in Clause I4.2(e).
Generally
Reference points, Jines and levels are lhe requisite starting points for lhe
proper location and execution of construction works. Once defined in lhe
documentation, achievement of the accurate and correct setting out is lhe
full responsibility of the Contractor as constructor of the works.
The clause has two sub-clauses. The first sub-clause is a restatement of

the basic responsibility of lhe Contractor for accurate setting out of lhe
Works.' Tt sets out lhe first thing to be done on site. The second subclause, however, provides for what happens after lhat and indeed for lhe
duration of the execution of lhe Works. Should any error appear in lhe
positions, levels, dimension or alignment of any part of lhe Works,2
during its execution, the Contractor3 is to rectify such error at his own
cost and to lhe satisfaction of lhe Superintending Officer (S0).4
Contractor
Contractor's ob ligations and liabilities
The Contractor's obligations for accurate setting out are three fold at the
outset:
( 1)
(2)
(3)
16 Seecl7.2.
I
2
3
4
accurate setting out in relation to the original points, lines and levels
of reference provided by lhe SO in writing;
ensuring correctness of position, levels, dimensions and al ignment
of all parts of the Works; and
provision of all necessary instruments, equipment, apparatus and
labour in connection wilh these responsibilities. 5
See cl 8.1
For definition of Works, see cl I. I(ag).
For definition of Contractor, ~ce cl I. I(f).
For dcfini1ion of SO, see cl l.l(ab); see also cl 8.2.
A failure to comply with the above would amount to a breach of contract

and expose the Contractor to the consequent liability. In addition, should
the error in setting out result in the trespass of the neighbour's land, the
Contractor may be liable to the removal of any infringement and making
good including bearing the cost of any delay in the completion of the
works caused.
Additionally, during the execution of the Works, the Contractor is to
rectify all errors appearing in the position, levels, dimensions or
alignment of any part of the Works, when required by the SO, to the
satisfaction of the S0.6
Clause 9 - Programme for the Works
Generally
Role of the SO
The programme for the works which is prepared by the contractor usually
contains the commencement date and the completion date as proposed by
the contractor. It usually contains the sequence of work chosen by the
contractor and may also indicate the methods of working adopted by the
contractor. If the information found in the programme is binding on the
employer either by the express provision of the contract between the
parties or otherwise, he would be obliged to give possession of site to the
contractor on or before the commencement date provided by the
contractor. Further, in a traditional contract where the employer is
responsible for design, he must ensure that his designers supply the
design information as and when required as indicated in the programme.
Where there is no express provision relating to the effect of the
progranune, it was held in Glenlion Construction Ltd v The Guinness
Trust 1 that there was no implied term of the contract between the
contractor and the employer that, if and so far as the programme showed
a completion date, before the date for completion the employer by
himself. his servants or agents should perform the said agreement as to
enable the contractor to carry out the works in accordance with the
programme and to complete the works on the said completion date.
The original reference points that form the basis for setting out are to be
provided by the SO in writing. 7 In the event that errors appear in relation
to position, levels, dimensions or alignment during the course of the
Works, the SO may require the Contractor to rectify tbem. 8
Cross References
There is no express reference to any clause.
This clause has four sub-clauses. This clause regulates the programme for
the Works. 1 It prescribes the mechanism for submission, approval and resubmission until the Superintending Officer (S0) 3 accepts the
program.me or it is deemed accepted as well as the consequences of
acceptance and failure to submit an adequate programme. It also
prescribes for revision. The purpose of the programme for the works is
5
6
7
8
See cl
See cl
See cl
See cl
8.1.
8.2.
8.1 (a).
8.2.
I
2
3
64
(1987) 11 Con LR 126.

For definition of Works, see cl 1. l(ag).
For definition of Superintending Officer, see cl I l(ab).
65
Public S~cror Standard Co11dilio11s of Contract for Co11stmcrio11 Works 2005
not found in this clause. However, by Clause 12. J. the parties are bound
to treat the programme or any revised or modified programme accepted
by the SO as the guide to determine whether the Contractor' has
proceeded with the works with due diligence and expedition and without
delay in accordance with the Contract. 5
The first s ub-clause, 9.1. has three limbs. The first limb, 9.1 (I).
prescribes that the Contractor should submit a programme to the SO in
the form and in compliance with the requirements specified in the
Contract or otherwise prescribed by the SO within 30 days after the date
of the Letter of Acceptance6 or such other time as the SO may reasonably
require. It is to be noted that by Clause 12.1 , the Contractor can only
proceed with the works in accordance with a programme that has been
accepted by the SO. Presumably, the Contractor cannot proceed if the
programme has yet to be accepted.
This programme is relied on in three other clauses. First, under
Clause 14.3( I), the Contractor, in his application for extension of time,
must inform the SO, inter alia, the effect of the delay event on the
programme accepted unde r Clause 9 (Programme for the Works).
Second, where, in the opinion of the SO, the rate of progress of the
Works or any phase or part of the Works is at any time too slow to achieve
completion by the Time for Completion,7 he shaJI notify the Contractor
under Clause l 5.1 and the Contractor shall thereupon take such steps as
are necessary to expedite progress. Such steps include, if required by the
SO, the preparation of a revised or modified programme for acceptance
by the SO.
Third, the SO may issue a Termination Certificate8 if in his opinion,
the Contractor has failed to comply with his obligations under Clause 9 or
has failed to execute the Works in accordance with a programme accepted
under Clause 9.9
The second limb, 9.1 (2), provides for the SO to notify the Contractor
in writing pursuant to C lause 36.2(3) whether the programme is accepted
or found to be unacceptable. Alternatively, if there is no reply from the
SO, the programme is deemed to be accepted.
The third limb, 9.1(3), it is provided that the SO should include in his
notice, his reasons for rejecting the programme. This wou ld trigger the
requirement imposed o n the Contractor to s ubmit a further programme
for the SO's consideration. Then it is provided that the whole cycle is
repeated if the SO finds the programme unacceptable.
The second sub-clause, 9.2, regulates the revision or modification of
the programme during the progress of the Works. Therefore, the SO may
instruct the Contractor in writing to supply additional particulars or to

submit a revised or modified programme when it appears to the SO that
the actual progress of the Works at any time does not conform with the
accepted programme.
The third sub-clause, 9.3. prescribes the consequences of the
acceptance of the programme. Essentially, the acceptance of the
programme does not relieve the Contractor of any of his obligations to
execute and complete the Works in accordance with the Contract and by
the Time for Completion. The acceptance is not to be construed as the
grant of an extension of time or as a waiver of or fetter on the exercise by
the SO of his power under Clause 15 or by the Employer 10 or the SO
under Clause 3 1.
The fourth sub-clause, 9.4. prescribes the contrac tual remedy for the
failure to comply with C lause 9. 1 and/or 9.2. it is clearly stated that this
contractual right is without prejudice to any other rights and remedies
available to the Employer or the SO. For the duration of the defaull, the
SO may certify an additional 10% for retention as prescribed in the subclause.
5
6
7
8
9
For definiuon of Contractor. see cl l.l (t).

For definiuon of Contract. see cl I. l(d).
For definition of Leuer of Acceptance. ~ee cl l. l(p).
For definiuon of Time for Completion, ~ee cl I. I (af).
See cl 31. 1( 1).
See cl 31. 1(I )(c).
66
Contractor
The Contractor is respo nsible for submitting an original programme for
the Works and any subsequent revisions as prescribed. In respect of the
original prog ramme, the Contractor must submit to the SO within 30 days
after the date of the Letter of Acceptance or such other time as the SO
may reasonably require. The programme must be in the form and in
compliance with the requiremenls specified in the Contract or otherwise
required in writing by the S0. 11 Whenever the SO requires, the
Contractor must furni sh the SO such particulars and information as the
SO may reasonably require for the purpose of determining the
acceptability of the programme for the Works. 12
The Contractor's next obligation to act depends on the SO's response.
The Contractor does not need to act until a revision of the programme is
necessary if either the SO accepts the programme or the re is no response
from the SO as the programme is deemed to be accepted. 13 If the SO
gives his reasons for rejecting the programme. the Contractor is obliged
to re-submit a programme after taki ng into account the SO's reasons for
rejection within 14 days of receiving the SO's notification of rejection. If
the re-submitted programme is not acceptable, the procedure is repeated.
JO For definition of Employer. see cl l . l (m).
11 See cl 9. 1(1).
12 See cl 9. 1(1).
13 See cl 9. 1(2).
67
Public Sector Sta11dard Conditions of Contract for Co11struction Works 2005
However, there is no express provision for the number of times the

procedure is to be repeated. 14
Upon receiving an instruction from the SO to supply additional
particulars or a revised or modified programme or both in order to show
and to ensure completion of the Works within the Time for Completion.
the Contractor must do so within seven days or such other period as the
SO may specify in his instruction to the Contractor to submit the same. 15
This sub-clause may be read with Clause 15.1 where the SO holds the
opinion that the rate of progress of the Works is too slow to achieve
completion by the Time for Completion and he requires the Contractor to
prepare a revised or modified programme.
In any event, the acceptance by the SO of the programme or of any
revised or modified programme does not relieve the Contractor of any of
his obligations to execute and complete the Works in accordance with the
Contract and by the Time for Completion. 16
The first contractual liability that the Contractor faces is prescribed by
the clause itself. Clause 9.4 provides that the Contractor is liable to a 10%
reduction in the amount due for payment in the interim payments as
prescribed. This will be released when the SO is satisfied that the
Contractor has complied with the requirements of the clause and a
certificate that the amount retained is issued by the SO.
The contractor is also liable to the Employer as provided by Clause 31
should the SO issue a Termination Certificate pursuant to
Clause 3 1.1 (I )(c) and the Employer gives written notice of termination
pursuant to Clause 31. l (2).
this contractual right is available without prejudice to any other rights and
remedies which may be available to the Employer or the S0. 18
The Employer's right to terminate the Contract as prescribed in
Clause 31. I (2)(c) (Termination for Default) and pursuant to the SO's
Termination Certificate given as a result of the Contractor's noncompliance with his obligations under Clause 9 or his failure to execute
the Works in accordance with a programme accepted under Clause 9 as
prescribed in Clause 31.1 (l )(c) (Termination for Default) is not waived or
fettered by the acceptance of the SO of the programme or of any revised
or modified programme under Clause 9.

It is expressly provided that the SO's acceptance of the programme or of
any revised or modified programme is not to be construed as the grant of
an extension of time under Clause 14 (Time for Completion). 17
Employer
Should the Contractor fail to comply with Clause 9.1 and/or 9.2, the
Employer is entitled to retain 10% of all moneys that may be due to the
Contractor as interim payments until such time that the SO is satisfied
that the Contractor has complied with the requirements of Clause 9.1
and/or 9.2. The amount retained shall only be released to the Contractor
without interest upon a certificate by the SO that it may be paid. Further,
14
15
16
17
Seecl9.1(3).
See cl 9.2.
See cl 9.3.
Sec cl 9.3.
68
Role of the SO
ln this clause, the role of the SO covers three areas, namely, matters
relating to the original programme. matters relating to the revised or
modified programme and the consequences of the Contractor's failure to
comply with the requirements of this clause.
In respect of the original programme. the SO may first decide to
prescribe a form in which the Contractor is to submit the same and any
other requirements concerning the programme. 19 He may also decide
reasonably to prescribe a time other than 30 days after the date of the
Letter of Acceptance for the Contractor to submit the said programme for
the Works. 20 The SO is also empowered to require the Contractor to
furnish him with further particulars and information for the purpose of
determining the acceptability of the programme for the Works. 21
The SO is obliged to notify the Contractor within 30 days of receiving
the programme and any further particulars and information in relation to
it, whether the programme is acceptable or unacceptable, failing which, it
shall be deemed to be accepted. 22 lf the SO finds the programme not
acceptable, he must notify the Contractor of his reasons for rejecting it. 23
ln response. the Contractor must submit to the SO a programme
acceptable to the SO within 14 days of receiving the said notification
from the SO. The SO in tum is obliged to notify the Contractor within 14
days of receiving the further programme from the Contractor whether the
programme is accepted or unacceptable, failing which, it shall be deemed
to be accepted. If it 1s not acceptable, the same procedure is repeated. 24
18
19
20
21
22
23
24
See cl 9.4.
Seecl9.l(I).
See cl 9. 1(1).
Seecl9.1(1).
Seecl9.1(2).
Sec cl 9.1 (3).
See cl 9.1(3).
69
(
Public Sector Standard Conditions of Comract for Construction \Vorks 2005
Jn respect of the revised or modified programme, the SO may decide to

instruct the Contractor to supply additional information or to submit a
revised or modified programme or both in order to show and ensure
completion of the Works within the Time for Completion if it appears to
the SO at any time that the actual progress of the Works does not conform
with the programme accepted under Clause 9. J .:?.5
If the Contractor fails to comply with Clause 9.1 and/or 9.2, the SO is
empowered to issue two certificates. Firstly, he has the power to certify
that 10% of all moneys that may be due to the Contractor as interim
payments be retained by the Employer. Secondly, when the SO is
satisfied that the Contractor has complied with the requirements of
Clause 9.1 and/or 9.2, the SO may issue a certificate that the retained
amount be paid to the Contractor. 26
Further, the exercise of the SO's powers under Clause 15 (Expediting
Progress of Works) is not waived nor fettered by the SO's acceptance of
the programme or of any revised or modified programme. 27
Cross References
The clauses expressly referred co in this clause are 9.1 (Programme to be

Fumished), 28 9.2 (Revision of Programme),29 14 (Time for Completion), 10
15 (Expediting Progress of Works),31 3 1 (Termination by the Employer) 32
and 3 I . I (Termination for Default). 33
Clause 9 is mentioned in the following clauses, 12. l , l4.3, 15.1 and
31.l(l)(c).
25
26
27
28
29
30
See cl 9.2.
See cl 9.4.
See cl 9.3.
See sub-ell 9.2 and 9.4.
See cl 9.4.
See cl 9.3.
3 I See cl 9.3.
32 See cl 9.3.
33 See cl 9.1(3)
Clause 10 - Q uality in Construction
Generally
In a traditional contract, the contractor's responsibility is limited to

ensuring that the quality of materials and workmanship required for the
contract is achieved. Quality control comes in different forms and at
different stages, namely: (l) quality of matenals and workmanship may
be specified expressly or implied by common law; 1 (2) quality checks
leading to the ascertainment of defective works may be prescribed in the
contract; (3) a mechanism to deal with defects that may allow the
contractor to carry out rectification works: and (4) a default situation
empowering the employer to engage others to do so.
Thus the required quality may be expressly provided or it may be
implied by law. Accordingly. the quality of materials and workmanship
may be found in quality specification or performance specification. In
addition tests may be prescribed, the failure of which would indicate a
failure to achieve the required quality. Further, the specification may
prescribe compliance with existing Singapore or British Standards and
Codes of Practice. Alternatively, instead of prescribing an objective
standard in respect of the quality of materials and workmanship,
a subjective standard may also be prescribed such as to the satisfaction of
a person, usually the Architect or the Superintending Officer (SO)
appointed for the contract although it could be, but rather rarely, to the
satisfaction of the employer. In verifying the quality by the use of a
subjective standard, the person appointed must act in good faith .
Where the contractor breac hes any tenn of the contract, the common
Jaw remedy available to the employer is usually damages, that is,
monetary compensation. Thus. where defects are discovered, the
employer is entitled to claim damages which is an amount equal to the
cost of rectification or the amount that is equal to the diminution in value
of the defective work. However, during the contract period of a building
Sec the prov1s1ons of cl 4 (General Obligations of the Contractor). For the
implication of tenns m respect ofmatenals and workmanship, see Ma11agemem
Corporation Strata Title Plan No 1166 i Chubb Singapore Pre Lld [I 999] 3 SLR
540.
70
71
Public Sector Standard Conditions of Co111rac1 for Consrruc11on Works 2005
Clause JO - Qualiry in Co11s1mc11011
contract where the construction works are being carried out and during
the defects Liability period, the parties may agree to fonns of remedy
other than damages. Thus, the parties may agree that the contractor Ca.IT)
out rectification works at no cost to the employer.
the cost when it is so provided in the Contract. In the other situation

where the SO requires a test, the Contractor bears the cost only if the test
shows that the relevant Plant, materials, goods or workmanship were not
in accordance with the Contract or did not meet the SO's instructions or
satisfaction. Otherwise, the Contractor is entitled to an extension of time,
the cost of the test as if it were a variation and/or any Loss and Expense9
incurred by the Contractor. all in accordance with Clause I 0.4.
The next two sub-clauses make provisions concerning works that are
covered. The fifth sub-clause, 10.5. regulates when the Contractor may
proceed with covering up works. It is emphasised that the Contractor can
only cover up work or put any work out of view upon obtaining approval
from the SO or the SO's Representative (SO's Rep). 10 This is to ensure
that the Contractor affords foll opportunity for the SO or SO's Rep to
examine and measure any of the Works which 1s about to be covered up
or put out of view. This sub-clause may be read with Clause 21
(Measurement). Therefore, the Contractor must give due notice to the
SO's Rep whenever any works are ready or about to be ready for
examination. The SO's Rep must respond without unreasonable delay by
carrying out the necessary examination and measurement. Otherwise. the
SO's Rep should write to the Contractor to inform him that it is
unnecessary to carry out any examination or measurement. The subclause also provides a contractual remedy to the Contractor's failure to
comply with the same. EssentiaJly, the Contractor has to bear the cost of
uncovering the works regardless of whether upon examination, the
examined works are in compliance with the Contract or not. In addition,
the Contractor must bear any additional cost arising from any measures
or requirements carried out or directed by the SO.
The sixth sub-clause, 10.6, empowers the SO from time to time to
instruct the Contractor to uncover any part or parts of the Works. In
addition, the SO is empowered to instruct the Contractor to make
openings in or through the Works. These powers also include the power
to instruct the Contractor to reinstate and make good such part or parts to
the satisfaction of the SO. However, if these powers are exercised after
the Contractor had earlier complied with the notification requirement of
the preceding sub-clause, then the Contractor is entitled to an extension
of time and Loss and Expense as prescribed.
The last two sub-clauses make provisions in respect of defects. By
Clause 1.1 U) 'Defect' means any part of the Works not executed provided
or completed in accordance with the Contract. For the avoidance of doubt
and without limiting the generality of the expression the term shall be
taken to include any item of Plant, material, goods or work incorporated
or used in the Works which does not or may not conform to the relevant
This clause has eioht

sub-clauses. This
clause
regulates the quality
0
.
control of materials and workmanship used m the Works.- lt ts an
elaboration of the Contractor's3 obligation set out in Clause 4.1 where it
is provided that the Contractor is to supply all superintendence, la~our,
Plant,~ Construction Equipment,5 materials, goods and all other thmgs.
whether of a temporary or permanent nature required in and for such
design, execution, completion of the Works and remedying of any
Defect.6
The first sub-clause, JO. I, is concerned about quality control in respect
of Plant, materials, goods and workmanship. There are two limbs. The
first limb, Clause I0.1 (a), provides that all Plant, materials, goods and
workmanship must be of the respective kinds described in the Contract.
7
In addition, they must be in accordance with the instructions of th~ S0.
The second limb, Clause 10.1 (b), provides that the SO may, from time to
time, require that all Plants, material, goods and workmanship be
subjected to the necessary tests. l_'he testing may be at _the place of
manufacture, fabrication or preparation. ft may also be on Sile or at other
places as may be specified in the Contract. 8 This sub-claus~ may ~e read
with Clause 11.4 which provides access for the SO to examine or inspect
the Works at all reasonable times including having access to factories,
workshops or other places where any Plant, materials, goods or work are
being fabricated, prepared or stored for the Contract.
The next three sub-clauses regulate the said tests. The second subclause, I0.2, prescribes that the Contractor shal~ provide ever~~ing
necessary, including the samples, as are required for exar:rimm,
measuring and testing any Plant, materials, goods ?r. workman~h1p: It 1s
the SO who selects samples of materials before their mcorporat1on m the
Works that are supplied by the Contractor.
The third sub-clause, 10.3, is very short and provides that the said
samples are supplied by the Contractor at its own cost.
The cost of the test itself is provided in the fourth sub-clause, 10.4. It
provides for two situations. fn the first situation, the Contractor must bear
'I
2
3
4
S
6
7
8

For definition of Conu-actor, ~ee cl l.l(f).
For definition of Plant, see cl 1.1 (v).
For definition of Construction Equipment. see cl 1.1 (g).
For definition of Defect, see cl I. I (j).
For definition of Superintending Officer. see cl 1.1 (ab).
For definition of Contract. see cl I. I (d).
72
9
10
For definition of Loss and Expense. see cl l. l(q).

For definition of Superintending Officer's Representative. see cl I. I (ac).
73
Public Sector Sra11dard Co11di1io11s of Co111ractfor Co11stn1c1io11 Works 2005
Clause 10- Qua/it)' i11 Co11srructio11
quality standards or pass the tests prescribed in or to be inferred from the

Contract.
The seventh sub-clause, 10.7, provides the contractual remedies in
respect of defects during the progress of the Works. This sub-clause may
be read with Clause I 8.1 (b) which provides the contractual remedy
during the Defects Liability Period. By Clause 10.7, the SO has three
options. The SO is empowered to instruct the Contractor to demolish and
reconstruct any work so that it is in accordance with the Contract. The SO
is also empowered to instruct the Contractor to remove from or not to
bring to the Site any Plant, materials or goods which in the opinion of the
SO are or may not be in accordance with the Contract and to replace such
Plant, materials or goods with materials or goods which are in accordance
with the Contract. It must be noted that even if the Contractor disputes
with the SO, be must nevertheless comply with it. However, the
Contractor's recourse expressly provided in this sub-clause is to take
action in accordance with Clause 14, 23, 32 or 34. The Contractor's fate
depends on the decision of the SO or the arbitrator as the case may be.
Related to this sub-clause is Clause 31. I (I )(d) which provides for the
issue of a Termination Certificate by the SO where, in the opinion of the
SO, the Contractor has persistently failed to remove Plant, materials.
goods or work from the Site or to pull down and replace work following
the expiry of 14 days from receipt by the Contractor of a written notice by
the SO to the effect that the Plant, materials, goods or work have been
condemned and rejected by the SO.
The last sub-clause, 10.8, gives a contractual remedy to the Employer
in the event that the Contractor fails to comply with the SO's instruction,
that is, the Employer is entitled without prejudice to any other rights and
remedies to e mploy and pay others to carry out the subject matter of the
instruction and the amount of any loss, expense, costs or damages
suffered or incurred by the Employer is recoverable from the Contractor.
Related to this provision for recovery is Clause 35 (Recovery by the
Employer).
specified in the Contract, or at all or any of such places. 11 In this

regard, the Contractor must provide everythi ng necessary as is
required for examining, measuring and testing any Plant, materials,
goods and workmanship. He must also supply samples of materials
before incorporation in the Works for testing as may be selected and
required by the S0;'2
(2) he must give due notice to the SO's Rep whenever any Works are
ready or about ready for examination;
(3) he must afford full opportunity for the SO or SO's Rep to examine
and measure any of the Works which is about to be covered up or
put out of view;
(4) he has to obtain the SO's or SO's Rep's approval before covering up
or putting out of view any Works; and
(5) if he fails and/or neglects to comply with the provisions of
Clause 10.5, upon the request of the SO, the Contractor must
uncover any part or parts of the Works or to do all such things as are
necessary for the SO or SO's Rep to inspect the Works as
constructed.
Under Clause I0.3, the Contractor is liable to supply samples at his own
cost. The Contractor is also liable for the cost of testing under
Clause 10.4 if the test has been expressly provided by the Contract.
Where the test is not so provided and is required by the SO, the
Contractor is only liable to bear the cost if the testing shows that the
Plant, materials, goods and workmanship are not in accordance with the
Contract. By Clause 10.5, lhe Contractor is liable to bear the cost of
uncovering and related costs as well as the liability for delay and any
additional cost of any measurements or requirements of the SO should
the Contractor fail to comply with the clause.
The Contractor's responsibili ties re lating to the ascertainment of the
quality required after the completion of any part or parts of the work are:
( 1)
Co ntractor
The Contractor is obliged to provide Plant, materials. goods and
workmanship that are of the respective kinds described in the Contract
and in accordance with the instructions of the SO.
In addition. the Contractor's responsibilities relating to the
ascertainment of the quality required before the completion of any part or
parts of the work are:
(I )
he is to comply with any instruction from the SO issued from time

to time requiring the carrying out of tests on any Plant, materials,
goods and workmanship at the place of manufacture, fabrication or
preparation, or on Site or at such other place or places as may be
74
(2)
he is to comply with the SO's written instruction which may be

given from time to time to uncover any part or parts of the Works or
make openings in or through the same and to reinstate and make
good such part or parts to the SO's satisfaction; and
if so instructed by the SO under Clause 10.7. the Contractor must:
(a)
(b)
demolish and reconstruct any work so that it is in accordance

with the Contract;
remove from or not to bri ng to the Site, any materials or goods
which in the opinion of the SO are not or may not be in
accordance with the Contract and to replace such materials or
11 See cl 10.l(b).
12 See cl 10.2.
75
Clause JO - Qualiry i11 Co11s1ructio11
(c)
goods with materials and goods which are in accordance with

the Contract; and
remove from the Site, any Plant which in the opinion of the
SO is not or may not be in accordance with the Contract and to
provide Plant which is in accordance with the Contract by the
provision of new or alternative or repaired Plant.
The Contractor must nevertheless carry out the SO's instructions even
though he may dispute the same. If it is decided that the subject matter
under dispute is a defect, then the Contractor is liable for all the related
costs incurred.
The Contractor may also face the liability of termination related to
Clause 31. l (I)(d) which provides for the issue of a Termination
Certificate by the SO in the situation where in the opinion of the SO, the
Contractor has persistently failed to remove Plant, materials, goods or
work from the Site or to pull down and replace work following the expiry
of 14 days from receipt by the Contractor of a written notice by the SO to
the effect that the Plant, materials, goods or work have been condemned
and rejected by the SO.
There are three areas of concern for the Contractor, namely, the tests to be
carried out, the requirement to uncover the covered works and defects.
First, when the Contractor is required to supply a sample for testing, he
must do so al his own cost unless otherwise provided in the Contract. 13 In
addition, the cost of making any test required by the SO is to be borne by
the Contractor in the following circumstances:
(a)
(b)
(c)
if the test is prescribed by the Contract;

if the test is in the opinion of the SO required in consequence of
some prior failure or breach or other fault of the Contractor; or
only if the test, which is not prescribed by the Contract, shows that
the relevant Plant, materials, goods or workmanship were not in
accordance with the Contract or did not meet the SO's instructions
or satisfaction.
Consequently he cannot make a claim against the Employer in this

respect. 14 However, where a test is not prescribed by the Contract but is
required by the SO and the test shows that the relevant Plant, materials,
goods or workmanship were in accordance with the Contract and/or met
with the SO's instructions or satisfaction, the Contractor is entitled to
claim: 15
13
14
15
(a)
(b)
(c)
Second, in respect of the uncovering of covered works, the Contractor's

position depends on whether he was granted approval by the SO to
proceed with the covering up of the works. Where the Contractor failed to
obtain the necessary approval, the Contractor is obliged to uncover any
part or parts of the Works or to do all such things as are necessary for the
SO or the SO's Rep to inspect the Works at his own cost. '6 The
Contractor must also bear the cost of any measures or requirements
carried out by or directed by the S0. 17 However, if the Contractor has
obtained the said approval, the Contractor is entitled to claim the
following for complying with the SO's written instructions to uncover
any part or parts of the Works or to make openings through the same if
such part or parts are found to be executed in accordance with the
Contract:
(a)
(b)
(c)
76
an ex tension of time pursuant to Clause 14 (Time for Completion);

the costs of uncovering, making openings in or through, reinstating
and making good the same pursuant to Clause 32 (Progress
Payme nts and Final Account); and
any Loss and Expense pursuant to Clause 23 (Procedure for Claims)
and Clause 32 (Progress Payments and Final Account). is
In any other case, all such costs and any Loss and Expense must be borne
by the Contractor. In addition. the Contractor is not entitled to any
extension of time for any delay caused by such instruction. 19
Third, where the Contractor responds to the SO's instructions to deal
with any Defect as set out in his instruction pursuant to Clause 10.7, the
Contractor is entitled to his claim of extension of time and Loss and
Ex~ense if pu rsuant to Clause 34 (Settlement of Dispu tes), the SO or an
~b~trator deci_de~ that th~ SO was not justified either wholly or in part in
g1vmg the said mstruct1on and the Contractor had complied wi th the
requirements of Clauses 14, 23 and 32. 20
16
17
18
19
20
See cl I0.3.
See cl 10.4.
See cl 10.4.
the cost of the test as valued in accordance with Clause 20

(Valuation of Variations) as if it were a variation ordered under
Clause 19 (Variations to the Works);
an extension of time pursuant to Clause 14 (Time for Completion);
and
any Loss and Expense which the Contractor may have inc urred as a
result of the test if he has complied with Clause 23 (Procedure for
Claims).
See cl 10.S(a).
See cl 10.S(b).
See cl 10.6.
See cl 10.6.
See c.I 10.7.
77
Public Sector Standard Conditions of Co111ract for Co11srruc1w11 Works 2005
Employer
By Clause 10.4. it is the Employer who is liable to bear the cost of the
testing if requested by the SO and the result shows that the works have
been carried out in accordance with the Contract. Funher, the Employer
may be liable in respect of any extension of time granted and
consequential Loss and Expense claimed by the Contractor.
In addition, by Clause 10.6, the Employer is similarly liable to bear the
cost of uncovering the Works and any related cost including any Loss and
Expense claimed by the Contractor.
Finally, the Employer may also be liable under Clause l0.7 where the
SO is wrong in identifying any Defect and exercising his powers given by
the said clause.
Where the Contractor fails or refuses to comply with the SO's instruction
pursuant to Clause 10.7 (Defects during the Progress of the Works), the
Employer is entitled to employ and pay others to carry out the subjectmauer of the instruction. In addition, the Employer is entitled to recover
from the Contractor, any loss. expense, costs or damages suffered or
incurred by the Employer as a result of the Contractor's non-compliance.
This does not prejudice the Employer's other rights and remedies, if
any.21
The Employer may also have the right to terminate the employment of
the Contractor if the SO issues a Termination Certificate pursuant to
Clause 31.1 ( 1)(d) which provides for the issue of by the SO where in the
opinion of the SO, the Contractor has persistently failed to remove Plant,
materials, goods or work from the Site or to pull down and replace work
following the expiry of 14 days from receipt by the Contractor of a
written notice by the SO to the effect that the Plant, materials, goods or
work have been condemned and rejected by the SO.
Role of the SO (and the SO's Rep 22 )
There are four aspects of the SO's role in this clause, namely: (1) he may
prescribe the quality of any Plant, materials, goods and workmanship;
(2) he may conduct tests as prescribed; (3) he may examine and measure
the works before covering up and order the uncovering of the works if
necessary; and (4) he may deal with defects as prescribed. First, the SO is
21 See cl 10.8.
22 See cl I0.5.
78
Clause 10- Quality in Comtruc1io11
empowered to give instructions on the respective kinds of Plant,

materials, goods and workmanship required. 23
Second. the SO is empowered to give instructions from time to time on
such tests to be carried out on any Plant, materials, goods and
workmanship at the place of manufacture, fabrication or preparation, or
on Site or at such other place or places as may be specified in the
Contract, or at all or any of such places. 24 The SO is also empowered to
require the Contractor to supply for testing, samples of materials to be
selected by the SO for testing before their incorporation in the Works. 25 ln
respect of testing, the SO must first detennine whether the said test is
provided by the contract. Alternatively, the SO must decide whether in
his opinion the test is required in consequence of some prior failure or
breach of contract or other default of the Contractor. If the test is required
by the SO but not for these two reasons, the SO must determine whether
the Contractor is to be paid for carrying out the said test. If the test shows
that the relevant Plant, materials. goods or workmanship were not in
accordance with the Contract or did not meet the SO's instructions or
satisfaction, then the Contractor must bear the cost of making the said
test. 26
However, if the Contractor is not required to bear the cost of the test,
then the SO must ascertain whether the Contractor had complied with:
(I) Clause 14 (Time for Completion) so that he may decide whether to
grant an extension of time in respect of any delay caused by the test; and
(2) Clause 23 (Procedure for Claims) so that he may decide whether to
certify pursuant to Clause 32 (Progress Payments and Final Account) the
cost of the test and/or for any Loss and Expense which the Contractor
may have incurred as a result of the test. The SO must ensure that the cost
of the test is valued in accordance with Clause 20 (Valuation of
Variations) as if it were ordered under Clause 19 (Variations to the
Works). 27
Third, there are two aspects of the SO's role involving the covering up
of the works, namely, the examination and measurement of works before
they are covered up and the uncovering of covered works. In the first
situation, the SO or the SO's Rep has co consider whether it is necessary
to examine and measure any Works which are to be covered up or put out
of view and advise the Contractor accordingly after the receipt of the
Contractor's notice that such Works are ready or about to be ready for
examination. If an examination and/or measurement are/is necessary, the
SO's Rep must without unreasonable delay attend for the purpose of
examining and measuring such Works. If it is unnecessary, the SO's Rep
23
24
25
26
27
See cl I0.1 (a).

See cl 10. t(b).
Sec cl I 0.2.
See cl I0.4.
See cl I0.4.
79
Public Sector Standard Conditions ofContractfor Co11strnctio11 Works 2005
Clause 10 - Quality i11 Co11structio11
must advise the Contractor in writing accordingly, giving his approval for
the covering up or putting out of view of any Works by the Contractor. 28
In the second situation where the Contractor fails and/or neglects to
comply with the provisions of this clause, the SO may decide to require
the Contractor to uncover any part or parts of the Works or to do all such
things as are necessary for the SO or the SO's Rep to inspect the Works as
constructed. Subsequent to the inspection by the SO or SO's Rep, the SO
may decide to direct the Contractor to carry out any appropriate measure
or requirement pursuant to the clause. 29
Alternatively, the SO may decide from time to time to instruct the
Contractor in writing to uncover any part or parts of the Works or make
openings in or through the same and reinstate and make good such part or
parts. The SO must decide whether part or parts are reinstated and made
good to his satisfaction. The SO must ascertain whether the Contractor
has complied with the requirements of Clause 10.5. If the Contractor did
comply, then the SO must process the Contractor's claims for
compensation for carrying the works, as instructed by the SO, any
extension of Lime and Loss and Expense entitlement due to the Contractor
by ascertaining whether the Contractor complied with the Clauses 14, 23
and 32. Jn any other cases, the SO must ensure that the Contractor bears
the costs of carrying out the works as instructed by him, and any Loss and
Expense incurred. Further, the SO must not entertain any claim for
extension of time.30
Fourth, the SO must ensure that any Defect found in the Works be
appropriately dealt with. Therefore. the SO must form an opinion as to
whether any works, materials, goods and Plant are in accordance with the
Contract or not. If any one of the same is not in accordance with the
Contract, the SO may issue a written instruction to the Contractor
pursuant to Clause 10.7 (Defects during the Progress of the Works).
Where the Defect is found in the work that is completed, the SO may
decide to instruct the Contractor in writing to demolish and reconstruct
any work so that it is in accordance with the Contract.JI Where the Defect
is found in any materials or goods, the SO may decide to instruct the
Comractor in writing to remove from or not to bring to the Site, such
materials or goods and to replace the same with materials or goods which
are in accordance with the Contract.J2 Finally, where the Defect is found
in any Plant, the SO may decide to instruct the Contractor in writing to
remove from the Site such Plant and Lo provide a Plant which is in
accordance with the Contract by the provision of new or alternative or
repaired Plant. 3J In his instruction, the SO may specify the time or times
within which the Contractor is to comply with his instruction. 34
Should there be a dispute between the Contractor and the SO about
whether the SO is justified in giving his instructions involving defects,
the SO must give his decision pursuant to C lause 34 (Settlement of
Disputes). If the SO finds in favour of the Contractor, he must certify any
Loss and Expense and grant any extension of time that is due to the
Contractor. The SO must similarly certify any Loss and Expense and
grant any extension of Lime that is due if an arbitrator finds in favour of
the Contractor as prescribed.JS
28
29
30
31
32
See cl
See cl
See cl
See cl
See cl
10.5.
I0.5(a).
10.6.
10.7(a).
I0.7(b).
80
Finally, the SO is empowered to issue a Termination Certificate

pursuant to Clause 3 l.l ( I )(d) which provides for the issue of by the SO
where in the opinion of the SO, the Contractor has persistently failed to
remove Plant, materials, goods or work from the Site or to pull down and
replace work following the expiry of 14 days from receipt by the
Contractor of a written notice by the SO to the effect that the Plant,
materials, goods or work have been condemned and rejected by the SO.
Arbitrator
Role of the arbitrator
Reference is made to the role of the arbitrator under Clause 34 where he
must resolve the dispute between the Contractor and the SO in respect of
the SO's instruction issued under Clause 10.7. The arbitrator has to
decide whether the SO is justified, either wholly or in part, when the SO
gave the said instruction to the Contractor. J6
Cross References
(Examination and Measurement of Works before Covering Up),J7 10.7
(Defeccs during the Progress of Works),38 14 (Time for CompJetion), 39 19
(Variations to the Works), 40 20 (Val uation of Variations), 41 23 (Procedure
33
34
35
36
37
38
39
40
4I
See cl l0.7(c).
See cl 10.7.
See cl 10.7.
See cl 10.7.
See cl 10.6.
See cl I 0.8.
See sub-ell 10.4, 10.6 and 10.7.
See cl 10.4.
See cl 10.4.
81
Public Sector Standard Conditions of Contract for Co11s1r11c1io11 Works 2005
for Claims),42 32 (Progress Payments and Final Account) 43 and 34

(Settlement of Disputes).44
Sub-clauses 10.4 and 10.6 are mentioned in Clauses 14.2(g) and
22. l(f).
Clause 11 - Administration
Generally
In every building and construction site, the Contractor usually has
complete control over the site and becomes the legal occupier when
possession of the site is given to the Conlractor. IL would be difficult for
the Superintending Officer (SO) to carry out admi nistration of the
contract without being given access to the site to check the completed
works as well as access to other places off site lo be in a position to check
how components of the building or structure are being manufactured.
In the same way, while the responsibility and liability is allocated to
the Contractor in respect of site operations and method of working, the
SO must be put in a position to be able to regulate the days and hours of
working. Similarly, although the Contractor is responsible and liable for
the provision of superintendence of the works and the supply of labour,
the SO should be given a say as to whether a workman or other personnel
should be removed.
Finally, as it may not be easy to contact the Contractor and require his
presence on site immediately, it is good practice to require a Contractor's
representative to be present on site constantly to supervise the works on
site as well as to receive instructions from the SO.
42
43
44
This clause has four sub-clauses. The first sub-clau~e. 11.1, regulates the
working hours and days and does not allow work at night, Sundays and
public holidays without the SO's written permission. This sub-clause has
to be read with Clause 15.2 which permits work at night, Sundays and
public holidays. This sub-clause therefore gives an elaboration to the
extent of the Contractor's obligation under sub-clauses 4.1 and 4.2.
The second sub-clause, 11.2 has two limbs. Clause 11.2( 1) provides
for the appointment of the Contractor's Representative (defined
accordingly under Clause 1. I (g)). It is to be noted that any instruction
given to the Conlractor's Representative shall be deemed to have been
given to the Contractor. This sub-clause has to be read with
Clause 36.2(3) where all instructions to be given to the Contractor shall
See sub-ell 10.4, 10.6 and 10.7.

See 'ub-cll 10.4, 10.6 and 10.7.
See cl 10.7.
82
83
I
Public Sector Standard Condi1ions of Contract for Co11stmction Works 2005
Clause I I -Admi11istra1io11
be sent by post, cable, telex or facsimile transmission to or left at the

Service Address. Clause I 1.2(2) empowers the SO to object to the
appointment or employment or continued employment of any person
appointed or employed as the Contractor's Representative. However, the
SO may not object unreasonably or vexatiously.
The third sub-clause, 1I .3, empowers the SO to object to and require
the Contractor to remove immediately from the Works any person
employed by the Contractor who in the opinion of the SO misconduc~s
himself or is incompetent or negligent in the proper performance of his
duties and whose continued presence is undesirable or unacceptable.
The fourth sub-clause, 11.4, reserves the right of the SO and any
person authorised by him to examine or inspect the Works at '.111
reasonable times as prescribed. This sub-clause may be read with
Clause 10.
Contractor is protected by the proviso that such a notice of objection shall

not be issued unreasonably or vexatiously by the so.s
As for workmen and other personnel, the Contractor is expected to use
or employ persons who are careful, skilled and experienced in their
respective vocations, trades and callings. Again. objections by the SO can
require the Contractor to remove persons, who misconduct themselves or
are incompetent or negligent, immediately from the Works. 6
The Contractor is to grant the necessary access for the SO and any
person authorised by him for examination and inspection of the Works,
factories, workshops or other places. He is also to ensure that subcontracts contain similar provisions allowing the said access. 7
Contractor

The Contractor 1 is obliged to work on weekdays from Sam to 6pm from
Monday to Saturday. However, the Contractor is obliged to work outside
the permitted days and times only when work is rendered unavoidable or
necessary due to saving of life or property or for the safety of the W~rks
ln such instances, the Contractor is to infonn the SO at the earliest
possible time.2 Related to this is Clause 15.2 which allows working at
nights, on Sundays and on public holidays when the progress of works
requires expediting.
The Contractor is required to appoint a 'Contractor's Representative'
who shall be a competent and authorised person to represent him. The
name of such person shall be notified in writing to the Employer3 and the
SO. The Contractor's Representative is required to be constantly on site
and solely responsible for the superintendence of the Works. Most
importantly, instructions given to the Contractor's Representative shall be
deemed to have been given to the Contractor. 4 Related to this is
Clause 36.2(3) where it is provided that all instructions to be given to the
Contractor by the Superintending Officer shall be sent by post, cable,
telex or facsimile transmission or left at the Service Address.
Where the SO objects to the person appointed or employed as the
Contractor's Representative, the Contractor is required to remove him
forthwith on receipt of the SO's notice of objection in writing. The
I
2
3
4
For definition of Contractor, see cl I. I(e).

Seeclll.l.
For definition of Employer, see cl I. I (I).
See cl 11.2(1).
84

The Contractor's right to work is limited by Clause I 1.1 . The Contractor
does not have the right to carry out work at night which covers the hours
of 6.00pm to 8.00am. Neither does the Contractor have a right to work on
Sundays and public holidays unless written permission is obtained from
the SO when the work is rendered unavoidable or necessary for the
saving of life or property or for safety of the Works.
Employer

Although it is not expressly provided, it can be inferred that if the SO did
object unreasonably and vexatiously to the appointment or the
employment or continued employment of any person appointed or
employed as the Contractor's Representative, the Employer would be
liable for any loss arising from this since the SO would have acted as the
agent of the Employer.
Role of the SO
Under Clause 11.1. if work is required during the night or on Sundays
and public holidays, the SO needs to give written permission before such
work can be carried out. He is empowered to give written permission only
when such work is rendered unavoidable or necessary for the saving of
life or property or for the safety of the Works.
The SO is empowered by Clause 11 .2(2) to object to the appointment,
employment or continued employment of any person appointed or
5
6
7
See cl 11 .2(2).
See cl 11.3.
See cl 11.4.
85
Public Sector Standard Conditions of Co111ract for Construction Works 2005
employed as the Contractor's Representative. The SO is entitled to issue

instructions to the Contractor's Representative and such instructions are
deemed to have been given w the Contractor under Clause 11.2( I). This
apparently dispenses with the prescribed mode of communication set out
in Clause 36.2(3) for instructions to be given by the SO to the Contractor.
He is also free to object to and require the immediate removal of any
person on the grounds of misconduct. incompetence or negligence in
performance under Clause I l .3.
By Clause 11.4. the SO, or someone authori sed to represent him, is
entitled to have access to the Works so as to examine or inspect the
Works. There is also a similar entitlement to access to the factories,
workshops or other places where any Plant. materials, goods or work are
being fabricated, prepared or stored for the Contract.
Clause 1 2 - Possession of Site and

Commencement of Works
Generally
Cross References
There is no express reference to any clause. The days and hours of work
are mentioned in Clause 15.2. The giving of the SO's instructions to the
Contractor is also mentioned in Clause 36.2(3). Re lated to Clause 11.3
are sub-clauses 4. 1 and 4.3 which provide for the supply of labour.
Related to Clause l l .4 is Clause I0 which provides for quality of Plants
and materials.
The contractor must be on site before he can carry out the work as agreed.
As the employer wants the work done. he must give or arrange to give the
necessary possession of the site to the contractor. As a contract period to
carry out and complete the works is usually agreed by the parties, the
employer must ensure that the possession of site is not only given to the
contractor but it must also be given so that the contractor can carry out
and complete the work in the time frame agreed. In Teknikal dan
Kejuruteraan Pte Ltd v Resources Development Corp (Pte) Ltd. 1 the
Court of Appeal held that:
[tjhere is a general obligation on the part of the employer not to prevent the
performance of the contract by the contractor. The obligation to give
possession of the site at the time provided by the contract is part of this
general obligation. Conversely, the contractor ha~ the right to carry out his
work in the order he chooses. A failure to give possession of the site in
accordance with the contract may amount to an interference with this right.
During the contract, the employer usually reserves a right to deploy other
contractors engaged by him on the site. This is Lo e nsure that if the need
arises to use other contractors to carry out work other than the scope of
works agreed between the employer and the contractor, then the two
parties do not need to enter into any further agreement.
At the end of the contract period or earlier in the case of a premature
tenn ination, the contractor must return possession of the site to the
employer. The return of this possession of site to the employer is more
critical when there is a premature termination of the contrac t since the
employer has to arrange for the completion of the balance of the work left
undone by the original contractor at the time of tennination. The
employer would be prevented from doing so if the contractor is allowed
[ 1994 ( 3 SLR 743 at 756.
86
87
Public Secror Srandard Conditions of Comract for Co11stmctio11 Works 2005
Clause I 2 - Possessio11 of Site and Comme11ceme111 of Works
to remain on site. Thus, in Royal Design Studio Pte Ltd v Chang

Development Pre Ltd, 2 Thean J said:
accordance with the Contract and programme or any revised or modified

programme accepted by the SO. This sub-clause should be re~d with
Clause 31. J (I )(b) where it is a ground in which Lhe SO may issue a
Termination Certificate should the Contractor. without reasonable cause,
fail to commence the Works. This sub-clause should al so be read with
Clause 15.1 which provides the situation where the rate of progress of the
Works i~. at any time in the opinion of the SO. too slow. Further this subclause must be read in the light of the power given to the SO to suspend
the progress of Works under Clause 13.1.
The second sub-clause, 12.2, regulates the giving of Site possession to
the Contractor and defines the quality of possession as being one of a
licence without exclusive occupation or use. This sub-clause should be
read wi th the provisions on the termination of licence under Clause 17.2
upon the Dale of Substantial Comple_tion 10 a_nd . the surrender of
possession by the Contractor in the respective termmat1on of employment
situations of the Contractor under sub-clauses 3 1. 1 a nd 3 1.4( l ).
The third sub-clause, 12.3, defines the consequences of the Employer's
failure to give possession of the Site as required. Accordingly, the
Contractor may be entitled to extension of time and a claim for Loss and
Expense. 11 This sub-clause may be read with Clauses 14.2U) and 22.l(c).
The fourt h sub-clause, 12.4, requires the Contractor to obtain rights of
way or access including the rights of over-sailin~ t~at may be requi~e? for
the execution and completion of the Works. This includes any add1t10nal
accommodation or land outside the Site required fo r the purpose of the
Works.
The fifth sub-clause, 12.5 has two limbs. The first limb reserves the
Employer's right to employ other contractors and imposes on the
Contractor an obligation to permit these other contractors to work on or
near the Site. In the second limb. the Contractor serves as a watchdog as
regards then work of the other contractors. The Contracto.r is requi:ed to
inspect and promptly report in writing to the SO, a ny d1screpanc1es or
defects in such work that may materially and adversely affect Lhe
execution of the Works. This sub-clause may be read with
Clauses I4.2(m) and 22. l (h).
I was firml) of the view that the second injunction ought to be discharged,
and I accordingly made the order. The joint venture had been terminated and
the plaintiff should not be permitted to remain in possession of the site and the
defendant should be at liberty to engage other contractors to continue with the
construction of the houses. If an injunction were to continue it would bring
about a stalemate: the defendant refused to pay the plaintiff on the ground of
breach of contract by the plaintiff and the termination of the joint-venture
agreement was justified; the plaintiff on the other hand, refused to proceed
with the construct.ion of the houses o n the ground that it had not been paid and
the termination was wrongful. Such a position is untenable. Even if the
termination was wrongful, the plaintiff would still have to vacate the s ite and
deliver possession thereof to the defendant. The plaintiff may proceed with its
claim against the defendant for damages.
This clause has five sub-clauses. The provisions in this clause relate to the
Site, namely: (1) giving the Contractor3 possession of the Site in order
that works may commence; (2) the consequences of failure to give
possession of Site to the Contractor; (3) the Contractor's obligation to
obtain access to the Site; and (4) the sharing of the Site by the Contractor
with other comractors.
According to Clause l. l (z), 'Site' means the lands and other places on,
in, under, over or through which the Works are to be executed or carried
out or any other lands or places provided by the Employer for the
purposes of the Contract4 and by Clause I. I (ag), ' Works' means the
Temporary Works 5 and the Permanent Works, 6 and where the context
requires, a phase or part of the Works.
The first sub-clause, 12.1 , defines three things. First, it defines the
commencement of Works as being on (a) the Date specified in the Letter
of Acceptance7 and, failing which, (b) on the date specified in an
instruction by the Superintending Officer (S0). 8 Second, this date of
commencement is also the date that sets the Time for Completion 9
running. Third, the rate of progress of works is defined and pegged to the
programme for the works required under Clause 9 as that the Contractor
shall proceed with due diligence and expedition and without delay in
2
3
4
5
6
7
8
9
[1991]2MU229at 231.
For defimuon of Contractor. see cl 1.1 (f).

For definition of Temporary Works, see cl l. l(ae).
For definition of Permanent Works, see cl I. I (u).
For definition of Letter of Acceptance, see cl 1.1 (p).
For definition of Superintending Officer, see cl 1.1 (ab).
For definition of Time of Completion, see cl I . I (al).
88
Contractor

The Contractor is obliged to commence Works either on the date
specified in the Letter of Acceptance 1 ~ or, if _no ~ate i_s. specified in the
said Letter. on the dale specified in an mstrucllon 111 wntmg to that effect
10
11
12
For definiuon of Date of Substantial Complet1on, see cl l .1 (i).

For definition or Loss and Expense, see cl 1. l(q}.
See cl 12. l (a).
89
Clause 12 - Possession of Site and Commerrceme11t of Works
Public Sector Standard Conditions of Contract for Construction \Vork.{ 2005
from the S0. 13 The Contractor faces the liability of termination under
Clause 31.1( 1)(b) if he fails to commence without cause.
After commencing his Works. the Contractor is required to proceed
with due diligence and expedition and without delay in accordance with
the Contract and programme or any revised or modified programme
accepted by the SO. The Contractor faces the liability of having to
expedite the progress of works under Clause 15 if in the opinion of the
SO the rate of progress of works is too slow to achieve completion by the
Time for Completion.
Accordingly, the Contractor is obliged to complete the Works within
the Time for Completion with the date on which the Contractor is to
commence the Works as the date of commencement of this period of the
Time for Completion. 14 The Contractor faces the liability of having
liquidated damages imposed on him under Clause 16 if he fails to
complete on the latest extended date for completion.
The Contractor must at his own expense be responsible for obtaining
any rights of way or access including the rights of over-sailing that may
be required by him or his methods of operation for the purpose of the
execution and completion of the Works. In addition, the Contractor must
also provide at his own cost and expense any additional accommodation
or land outside the Site as required by him for the purpose of the Works. 15
The Contractor faces the liability of successful trespass suits by
neighbouring land owners if the Contractor intrudes into the land of the
neighbours without fust obtaining the necessary rights.
Although the possession of the Site is given to the Contractor, he is
obliged to permit the execution of any work by any person who has been
employed or otherwise engaged by the Employer to carry out on-Site
work which does not form part of the Works. 16 Further, if any part of the
Works depends for the proper execution or results upon the work of any
such person employed or e ngaged by the Employer. the Contractor must
inspect and promptly report in writing to the SO any apparent
discrepancies or defects in such work that may materially affect and
adversely affect the execution of the Works. It is deemed that the
Contractor has accepted such a person's work as fit and proper to receive
into the Works if the Contractor fails to give the SO the said report. 17
In addition, the Contractor is exposed to the liability of an occupier
under the occupier's liability principle as, by virtue of his possession of
the then Site, he is the occupier of the Site.
13
14
15
16
17
See cl
See cl
See cl
See cl
See cl
12. l(b).
12.1.
12.4.
12.5( I).
12.5(2).

The Contractor's right to possession of the Site is expressly provided as a
hcence to occupy and use the Site for the purposes of carrying out the
Works but it is not an exclusive right. This right is subject to the
Employer's rights to have other persons whom the Employer engaged to
work. on the Site together with the Contractor. The Employer may also
enter so much of the Site as may not be required by the Contractor for the
purposes of the Works ei ther because a phase or part of _the Works ~as
been comple ted whether or not a Certificate of Substantial Compl_etJon
has been issued in respect of such phase or part or because the work is not
actively being carried out on that phase or part of the Works at that time. '. 8
The Contiactor is entitled to an extension of time under Clause 14.20)
and a claim for Loss and Expense under Clause 22. I U) as prescribed if
the Employer fails to give possession of the Site or any part of the Site as
required. 19
The Contractor is also entitled to an extension of time under
Clause 14.2(m) and a claim for Loss and Expense under Clause 22. l(h)
in respect of the acts and omissions of other contractors engaged by the
Employer in executing work not forming part of the Contract.
Employer

The Employer must give to the Contractor possession of so much of the
Site as may be required to enable the Contractor to commence_ the
construction of the Works on or before the date when the Contractor 1s to
commence the Works. In addition, the Employer will from time to time,
as the Works proceed, give to the Contractor possession of such further
portions of the Site as may be required to e?able the Contra~tor to
proceed with the construction of the Works ~n acc?rd~nce with the
contract.20 If the Employer fails to fulfil his obligation, then the
contractual remedy is set out in Clause 12.3 where the Employer would
be liable to the Contractor to the extent that extension of time and Loss
and Expense may be granted to the Contractor.
.
When the Employer exercises his right to employ or otherwise engage
any persons to carry out on Site as prescribed. such persons shall be
deemed to be a person for whom the Employer is responsible ~d not a
subcontractor. However, it is expressly provided that for the avmdance of
doubt, any properly authorised authority or statutory boards who n:ay be
employed in the execution on or near the Site of any work not in the
Contract shall not be regarded as contractors of the Employer a nd shall
18
19
20
90

See cl 12. 3.
See cl 12.2.
91
Clause I 2 - Possession of Site and Cormnencemelll of Works
Public Sector Standard Conditions of Co11trac1 for Co11strnctio11 Works 2005
not be deemed to be a person for whom lhe Employer is responsible. 21 If

lhe Employer fails to fulfil his obligation, then lhe Employer would be
liable to the Contractor to the extent that extension of time under
Clause J4.2(m) and Loss and Expense under Clause 22.1 (h) may be
granted to the Contractor.
It is expressly provided that the Employer reserves lhe right to employ or
Cross Refere nces
The clauses expressly referred to in this clause are Clauses 9 (Programme

for the Works), 27 12. 1 (Commencement of Works),28 12.2 (Site
Possession),29 12.5 (Other Contractors), 30 14 (Time for Completion), 31 23
(Procedure for Claims) 32 and 32 (Progress Payments and Final
Account).33
Clause 12.2 is mentioned in Clauses l 4.2U) and 22. I (c) while 'other
contractors engaged by the Employer' is mentioned in Clauses 14.2(m)
and 22.1 (h).
olherwise engage any persons to carry out, on Site, work which does not
form any part of the Works, whether or not infom1ation wilh respect to
such work is provided in the Contract.
Role of the SO
The SO must monitor whelher the Contractor commences his Works on

the date specified in the Letter of Acceptance. 22 If there is no such date in
the said Letter, the SO must give the Contractor a written instruction
specifying the date on which the Contractor must cornmence his Works. 23
The SO must also monitor whether the Contractor carried it out with due
diligence and expedition. 24
Where the Employer fails to give possession of the Site or any part of
the Site as required under the Contract, then if the Contractor complies
with the relevant requiremen ts under the Contract, the SO may grant an
extension of time and certify any Loss and Expense which the Contractor
may have incurred all in accordance with the Contract.25
Where any part of the Works depends for proper execution or results
upon the Works of any person employed or engaged by the Employer to
carry out on-Site work which does not form part of the Works, and the
Contractor has found apparent discrepancies or defects in such work lhat
may materially affect the execution of lhe Works, the Contractor must
promptly report in writing to the SO who must receive lhe same from the
Contractor. If there is no such report, the SO must note that the
Contractor's failure to submit lhe same constitutes acceptance by the
Contractor of such person's work as fit and proper to receive into the then
Works.26
27
21
22
23
24
25
26
See cl
See cl
Seecl
See cl
See cl
See cl
12.5( I).
12.l(a). See also cl 31.l(l)(b).
12.l(b).
12.l.Seealsocll 14.2and31.l(l)(c).
12.3.
12.5(2).
92
See cl 12.1.
28 See cl 12.2.
See cl
Sec cl
See cl
See cl
33 See cl
29
30
31
32
12.3.
12.2.
12.3.
12.3.
12.3.
93
Clause 13 - Suspension
Generally
There may be instances when work on a construction project may have to
be suspended for various reasons. This could be due to clients being
unable to make certain decisions and thereby likely to hold up progress of
the works or due to the late entry of end tenants and users to the project
whereby portions of the work may have to be held up pending decision.
As long as the contractor is appropriately compensated by way of
extension of time and/or loss and expense, there is nothing implicitly
wrong with such suspension. What may be inappropriate would be the
suspension for an unduly long period of time to the extent that the
resumption or continuity of that portion of the work becomes
questionable.
Intentio n o f the Clause

This clause has two sub-clauses. This clause enables the lawful request
for the suspension of works with compensation in respect of time
extension, payment of Loss and Expense claims and a possible
tennination provision. Thus, this clause may be read with Clauses 14
(Time for Completion), 23 (Procedure for Claims) and 31 (Termination
by the Employer).
The first sub-clause, 13.1, bas two limbs. The first limb empowers the
Superintending Officer (SO) ' to instruct a suspension of the progress of
the Works 2 or any phase or part of the Works as he may consider
necessary. The suspension may last for such time and in such manner as
instructed by the SO. The first limb also prescribes that the Contractor3 is
to properly protect and secure the Works or such phase or part of the
Works so far as is necessary in the opinion of the SO. As this sub-clause
affects the progress of Works, it must be read with Clause 12.1. Further,
I
2
3
For deft muon of Superintending Officer. see cl I. !(ab). See also cl I 3.1.
For definuion of Works. see cl l.l (ag).
For definition of Contractor, see cl 1.1 (J).
95
Public Sector S1andard Co11di1io11s of Co111rac1for Co11s1ruct1011 Works 2005
as Lhis sub-clause prescribes lhe prolection of the Works, it must also be

read with Clause 25. l.
The second limb provides for the mechanism for lhe SO to certify the
Loss and Expense4 for payment lo the Contractor which the Contractor
may have incurred and for the SO to grant an extension of time. This subclause may be read with Clauses 4.6 (Sufficiency of Tender), I4.2(k) for
extension of time and 22. l (d) for Loss and Expense claims.
In the last sub-clause, 13.2, there is a mechanism for a Contractor to
initiate termination if the progress of the Works or any part of the Works
is suspended for more than 90 days. This appears to be the only provision
for a Contractor-initiated termination in this Contract.
Contractor
On the SO's instruction, lhe Contractor is required first to suspend the
progress of the Works or any phase or part of the Works. This suspension
shall be of such time or times and in such manner as the SO may consider
necessary. During the period of suspension, he is also to properly protect
and secure the said Works so far as is necessary in the SO's opinion. 5
The Contractor, in giving effect to lhe SO's instruction to suspend the
progress of any phase or part of the Works, may be able to obtain redress
by way of extension of time and loss and expense.
If the suspension lasts for more than 90 days, the Contractor may serve
notice in writing on the SO requiring permission to proceed wilh the
Works. If the SO does not grant such permission within 30 days from the
Contractor's notice, the Contractor may serve further notice to treat the
suspension as either: (I) omission if the suspension affects only part of
the Works; or (2) termination if it affects the whole of the Works.6
Omissions shall be governed by Clause 19. l (Variations), while
termination shall follow the Notice of Termination pursuant to
Clause 31.4 (Termination Without Default), together wilh payment in
accordance with the provisions of Clause 3 L.4(2). If the suspension, by
virtue of it not being lifted after the specified requisite time allowances, is
treated as if the Employer7 had given a Notice of Termination pursuant to
Clause 31.4, the Contractor is entilled to be paid in accordance with the
provisions of Clause 31.4(2). s
4
5
6
7
8
For definilion of Loss and fapense. see cl l.l (q).

See cl 13. t(I).
See cl 13.2.
For definition of Employer, see cl l.l(m).
See cl 13.2.
96
Clause 13 - Suspension
Employer
By virtue of Clause 13. I (2), the Employer would be liable for the amount
of Loss and Expense certified by the SO and would be exposed to any
liability arising from the grant of any extension of time under the clause.
Role of the SO
The SO is the deciding authority for suspension. Instructions for
suspension of the progress of the Works are to be in writing and can be
for any phase or part of the Works, and for such time or times and in such
manner as the SO considers necessary. 9
Other than instructing the suspension in writing, the SO is empowered,
in relation to lhe suspension, to: (1) certify any Loss and Expense
incurred by lhe Contractor; and (2) grant an extension of time.
Such Loss and Expense and extension of time must however not be:
(a) otherwise provided for in the Contract; (b) necessary due to some
default of the Contractor; or (c) necessary for the proper execution of the
Works or for its safety. 10
When served a notice by the Contractor requiring permission to
proceed wilh the suspended Works, Lhc SO has 30 days to respond with
the grant of permission.
Cross References
The clauses expressly referred to in lhis Clause are: 23 (Procedure for
Claims), 32 (Progress Payments and Final Account), 14 (Time for
Completion), 11 19.1 (Variations) and 31.4 (TerminaLion Without
Default). 12 Clause 13.1(2) is menLioned in Clause 14.2(k), while
suspension is mentioned in Clause 22. l (d).
See cl 13. 1(1).

See cl 13. 1(2)(aH c).
II Seecll3. 1(2).
12 See cl 13.2.
to
97
Clause 14 - Time for Completion
Generally
Some contracts may have one date for performance, eg a delivery date of
goods. Other contracts may have a period identified for performance.
Thus, in a design and build contract. there may be a period for
performance that is divided into three parts, eg the time for design of, the
time for construction and completion of and the time for maintenance of
the Works. In building and construction contracts, only two parts are
performed by the contractor while the design part is carried out by the
employer's designers.
Most development projects are planned so that the commencement of
the use of the completed structure is known in order to project the
generation of income. Hence, fixing a time for completion is usually
expected. However, where no time or date for completion is specified in a
contract, completion within a reasonable time will be implied. The other
situation where the contractor is required to complete within a reasonable
time is when the original time fixed for completion becomes inapplicable.
According to volume 2 of Hudson 's Building and Engineering
Contracts: 1
Where a contract is for defined work. so that there will be an express or
implied obligation to complete, completion within a reasonable time will be
implied if no time or date is specified in the contract. The same result occurs
where a contractual completion date has been specified, but has ceased to be
applicable. This can happen where there has been agreement to that effect;
where there has been a waiver of an earlier breach of the completion
obligation, or an election by the owner to leave the contract on foot which
might otherwise have been cancelled for this reason; or where the owner has
in one way or another prevented completion within the contract time without
any breach on his part (as for instance. by ordering extra work); or by failing
lo give possession or by some other breach of comracl.
It has been found that some building and construction contracts do
contain provisions that make time for completion the essence. This means
Ian Duncan Wallace QC. Hudson's Building and Engineering Co111racrs ( 11th ed,
1995. Sweet & Maxwell) p 1110. para 9-007.
99
Clause 14- Time for Comple11011
Public Sector Standard Conditions of Cnmract for Construction Works 2005
that the parties have agreed that the term is important and the
consequence of its breach by the contractor would entitle the employer to
terminate the contract. However the existence of extension of time and
Liquidated damages provisions is generally regarded as incompatible with
the requirement that time should be of the essence. Accordingly, it is
observed as such by the editor of Hudson's as set out below.
When. finally. it is remembered that the builder's work on the owners land
cannot be refused or returned (as in the case of chattels) 11 is not surprising
that it is only in the most unusual case that the courts will hold time for
completion to be of the essence in a genuine building contract [the case of
Lucas v Godwin (1837) 3 Bing NC 744 was referred to]. Further. the
existence of provision for extension of time or for payment of liquidated
damages will generally be regarded (on the looking at the whole agreement
principle) as incompatible with an intention that time should be of the essence
[the case of Lamprell v Billericay Union ( 1849) 3 Exch 283].2
However, it has been characteristic of poor draftsmanship of recent years.
in nearly all commercial fields, that 'of the essence wording is frequently
used to 'overegg the pudding' in relation to obviously inappropriate
contractual obligations, and should not be accorded the same weight as when
used in a more considered way in more 'appropriate settings', it is submitted.~
The time fixed for completion assumes that the contractor would not be
prevented from doing so: by the employer, by himself or those under his
responsibility or by something beyond the control of both parties. Thus, if
the contractor is delayed, he would fail to complete the Works on the
original date of completion based on the lime fixed for completion. The
additional time needed for completion by the contractor may be divided
into two parts. The first part is the time in which the contractor is entitled
to an extension of time for completion. The second part is known as the
delay period in which the contractor is liable for the delay in completion.
Therefore, although the time for completion is fixed, it is possible to
have such time extended based on the prescribed grounds. Such
extensions of time, while appearing to benefit the contractor are in reality
part of a mechanism to keep the liquidated damages provisions alive.
Thus, if extension of time is not provided for any delay caused by the
employer, his agents or servants, or any person for whom he is
responsible. then time becomes at large, thereby rendering the liquidated
damages provisions inoperable.4 This is summarised by the editor of
Hudson's below:
It is submitted . . . (a) that the acts of prevemion by the owner. whether
authorised by or breaches of contract, will set time al large and invalidate any
2
3
4
Supra, note I, p 1115. paras 9-017-018.

Supra, note I, pp 1113-4, para 9-014.
See Peak Construction (Liverpool) Lid v McKinney Foundations Ltd ( 1970) 1 BLR
114.
100
liquidated damages clause, in the absence of an applicable extension of time

clause [see Holme v Guppy: Tltomhill 1 Neat.1: Dodd v Cl111rto11; Wells and
Nmy Co-op Society].5

This clause has three sub-clauses. This clause identifies the original time
for completion and the mechanism for this time to be extended. This
clause should be read with Clause 16 (Liquidated Damages) which
provides fo r the contractual remedy for the Contracwr's6 failure to
complete within the extended time for completion, that is, the period
commencing after the latest extended date of completion to the Date of
Substantial Completion. 7 There was an amendment made to Clause 14.2
(p) in the 2004 edition which is consequential to the change of the term
'artificial obstructions' to 'adverse physical conditions' within
Clause 5.2. This clause should also be read with Clause 22 which
provides for an entitlement to claim Loss and Expense on the part of the
Contractor where the regular progress and/or completion of the Works
have/has been disrupted, prolonged or otherwise materially affected as
prescribed.
By Clause l.l(af), 'Time for Completion' means time or times for the
completion of the Works8 or any phase or part of the Works set out in the
Letter of Acceptance9 or Appendix 10 subject to such extension or
extensions o f time (if any) as the Contractor may be allowed under the
Contract. 11
By Clause 16. l ( l ), '[i]f the Works shall not have been substantially
completed within the Time for Completion or any extended time made
pursuant to Clause 14, the Contractor shall pay or allow the Employer
liquidated damages calculated al the rate or rates stated in the Appendix
hereto for the period during which the Works shall so remain incomplete
'
The first sub-clause, 14.1. refers the party to: (a) the Letter of
Acceptance; or (b) the Appendix, as the case may be for the Time or
Times for Completion. By Clause 3.1, it appears that should there be an
inconsistency between what is found in the Letter of Acceptance and the
Appendix, they are to be taken as mutually explanatory of one another.
The second sub-clause, 14.2, sets out the circumstances in which
extension of time would be given. There are four general prescriptions
5
6
7
8
9
10
11
Supra, note I, p 1157, para 10-040, item (a).

For definition of Date of Substantial Compleuon. ~ee cl l.l(i).
For definition of Works. see cl l.l(ag).
For definition of Letter of Acceptance, see cl l.l(p).
For definition of Appendix. see cl l.l(a).
For definuion of Contract, sec cl I. I (d).
101
Public Sector Standard Conditions of Comract for Co11stmctio11 Works 2005
Clause/./ - Time for Completion
and 17 specific prescriptions from items (a) to (q) inclusive. The four
general prescriptions include:
application for extension of time that he must within a reasonable time,

make in writing to the Contractor such extension of time of the whole or
any phase or part of the Works. He must in tus opinion give what may be
fair, reasonable and necessary for the completion of the Works. In doing
so, he must take into account: (a) the effect, or extent, of any work
omitted under the Contract; (b) whether the event in question is one
which wi ll delay completion of the Works: and {c) any delays which may
operate concurrently with the delay due to the event in question and
which are due to acts or default on the part of the Contractor.
The fourth limb, 14.3(4), is an alternative provision to the preceding
sub-clause. Whilst Clause 14.3(3) provides for the SO to make a decision
on the extension of time when he has received sufficient information,
Clause 14.3(4) enables the SO to proceed with making his decision even
with insufficient information if he so chooses. He may do so based on the
information that is available to him taking into account the same matters
as set out in the limb. The proviso to the application of this limb is that
the Contractor must have complied with the notification requirements.
The last limb, 14.3(5), effectively puts a cap on three things should the
Contractor be dissatisfied with the extension of time given by the SO.
First, the Contractor cannot be claiming a greater extension of time than
that notified pursuant lo Clause 14.3(1). Second, the Contractor cannot
advance a new or additional ground not submitted to the SO before he
made his decision. Third, information which was not available to the SO
when he made his original decision to make or not to make an extension
of time cannot be used by the SO or the arbitrator in dealing with the
dispute.
(a)
the extension of time may be given either prospectively or

retrospectively by the Superintending Officer (SO); 12
(b) the extension of time may be given either before or after the Time
for Completion;
(c} the extension of time may be given only if the Contractor has been
carrying out his work with due diligence and had been taking all
reasonable steps to avoid or reduce any delay which is caused by
one of the 17 specified items; and
(d} the extension of time may not be given where the instructions or
acts of the Employer or the SO are necessitated by or intended to
cure any default of or breach of Contract by the Contractor.
It is to be noted that the extension of time to be granted would be 'such
further period or periods of time as may reasonably reflect delay in
completion'.
The third sub-clause, 14.3, sets out the mechanism for the Contractor's
claim and the SO's assessment and grant of the extension of time. It has
five limbs.
In the fust limb. 14.3(1), the Contactor must do two things as a matter
of condition precedent before he is entitled to an extension of time. First,
the Contractor must forthwith notify the SO when the Contractor is of the
opinion that the progress or completion of the Works is or will be or has
been delayed by any of the events stated in Clause 14.2. This must be
done within 60 days of the occurrences of such event. Second, the
Contractor must inform the SO, within the same notice or separately but
within the said 60 days, of: (a) the reasons why there will or may be a
delay in the completion of the Works or any part or section of the Works;
(b) the length of the delay and the extension of time required; (c) the
effect of the event on the programme accepted under Clause 9; and
(d) the appropriate Contract references. In tum, the SO must reply the
Contractor by notifying the Contractor in writing within 60 days of the
receipt of the Contractor's notice whether in the opinion of the SO, the
event is one which does or might entitle the Contractor to an extension of
time.
Jn the second limb, 14.3(2). the SO may require the Contractor to
supply such further particulars concerning the event and the
circumstances of the delay, the measures planned and/or taken to prevent
or minimise delay and any further information which the SO may
reasonably require.
The third limb, 14.3(3), describes how the SO should assess the
extension of time to be given. It is only when the SO has received
sufficient information to enable him lo decide the Contractor's
12
For defi nition of Superintending Officer, see cl I. I (ab).
102
Contractor
The Contractor's basic obligation to execute and complete the Works
(first spelt out under Clause 4.1) envisages not just completion but
completion on time, that is, within the Time for Completion that is stated
in either the Letter of Acceptance 1J or the Appendix. 14 Where phases are
involved, completion of these phases or parts is in turn required within
their respective Times for Completion stated in the same.
The Contractor is expected, with due diligence, to take all reasonable
steps to avoid or reduce any delay in completion which will be, may be or
has been caused by any of the events spelt out in Clause 14.2(a) to (q).
The starting point of the Extension of Time (EQT) procedure is the
Contractor's notice in writing to the SO that, in his opinion, an event,
subject to those listed in Clause 14.2, will delay or has delayed the
13
14
See cl 14.l(a).
See cl 14. l(b).
103
Clause 14 - Time for Completion
Public Sec1or S1arulnrd Condi1io11s of Comrac/ for Co11stmctio11 Works 2005
progress or completion of the Works. Such written notice of an event is to

be given forthwith, and in any case, within 60 days of the occurrence of
such event. 15
This notice, supported by the appropriate Contract references, should
include the following further information:
( 1)
(2)
(3)
the reasons why there will or may be a delay in the completion of

the Works or any part or section of the Works;
the length of the delay and extension of time required: and
the effect of the event on the programme accepted under Clause 9
(Programme for the Works). 16
It should be noted that both the notice and further information are
expressly made conditions precedent to any EQT entitlement.

If in the SO's opinion the information is insufficient to enable him to
decide on the application, and he has required provision of further
particulars, the Contractor is to provide these. 17
The Contractor's liability would be to pay liquidated damages for any
delay period for which the Contractor is not given an extension of time to
complete the Works.
If the Contractor is dissatisfied with the EQT granted, he has a right to
dispute the SO's decision under Clause 34. If he is still not happy with the
SO's decision given under Clause 34, the Contractor may commence
arbitration. However. his right to refer the dispute lo the SO or any
arbitrator would be limited to his initial claim and the grounds submitted.
He shall not claim a greater extension of time or advance new or
additional grounds not submitted carlier. 18 Indeed, he may be able to
introduce any information in addition to what the SO used in making his
original decision.
Employer
Although it is not expressly stated in this clause, the Employer19 is
exposed to the possible liability to pay the amount claimed by the
Contractor as Loss and Expense20 under Clause 22 should an extension of
time be given.
15 See cl 14.3( I).
16 See cl 14.3( 1).
17 See cl 14.3(2).
18 See cl 14.3(5).
19 For definition of Employer, see cl I. I (m).
20 For definition of Loss and Expense. see cl I . I (q).
104

Although it is not expressly stated in this clause, the Employer is entitled
to challenge any claim by the Contractor that does not abide by the threefold cap on the Contractor should he dispute the SO's decision made
pursuant to this clause.
Role of the SO
The SO may extend the time for completion to reflect a delay that wi ll or
might be or has been caused by certain events, and this is notwithstanding
due diligence and the taking of all reasonable steps by the Contractor to
avoid or reduce it. ln terms of when he can exercise this, he can do this
either prospectively or retrospectively and before or after the Time for
Completion.
The delaying events which the SO is empowered to consider for
extension of time are limited to the following:
(a)
(b)
(c)
(d)
(e)
force majeure;
exceptionally adverse weather conditions:
industrial action, strikes, lock-outs etc in Singapore;
one or more of the 'excepted risks' under Clause 25.2;
compliance with requirements of law, regulation, etc;
(f) fire, storm, lightning, etc:
(g) Ordering of test by SO not pursuant to Clause 10.4;
(h) the issue of any instruction for a variation:
(i) SO's instructions in relation to Provisional Sums;
U) failure of Employer lo give possession of Site or any part as
required by Clause 12.2;
(k) SO's instruction to suspend work subject to Clause 13.1 (2);
(I) late receipt of drawings, instructions or other information from the
SO for which notice is given by the Contractor in accordance with
Clause 3.4;
(m) acts or omissions of other contractors engaged by the Employer in
executing work not forming part of the Contract;
(n) any act of prevention or breach of contract by the Employer not
mentioned in this Clause;
(o) SO's instruction for search under Clause 18.4 where such search
reveals any defect, shrinkage or other fault for which the Contractor
is not liable;
(p) adverse physical conditions falling within Clause 5.2; and
(q) any other ground for extension of rime expressly mentioned in the
Contract and not mentioned in this Clause 14.2. 21
2 1 See cl I 4.2(a)-{q).
105
Public Sector Standard Conditions of Comract for Co11~1rucrio11 Work.I 2005
The Contractor's cntillemenl to EOT is however limited by the proviso

that the instructions or acts of the Employer or the SO must not have been
necessitated by or intended to cure any default of or breach of Contract by
the Contractor. By the same proviso, such disentitlement will also not set
the Time for Completion at large.22
On receipt of the Contractor's notice in writing, the SO is required to
notify the Contractor in writing within 60 days of such receipt. whether in
his opinion the event is one which does or might entitle the Contractor lo
an EOT. This in-principle deci sion to grant an EOT is however subject to
compliance with Clause 14.3(2) if additional information is required. 23
If the SO is of the opinion that the notice and the accompanying
references or reasons are insufficient to enable him to decide on the
application, he may require the Contractor to provide, within 14 days or
such other period required by him, additional information as follows:
( 1) further particulars concerning any event and the circumstances of the
delay; (2) the measures planned and/or taken to prevent or minimise
delay; and (3) any further information which he may reasonably require.24
If sufficient information has been received to enable a decision on the
Contractor's application, the SO is required, within a reasonable time, to
make in writing to the Contractor such extension of time which in his
opinion is fair. reasonable and necessary for the completion of the Works.
In arriving at this EOT, the SO is to take into account the following:
( 1)
(2)
(3)
the effect, or extent, of any work omitted under the Contract;

whether the event in question is one which will delay completion of
the Works; and
any delays which may operate concurrently with the delay due to
the event or events in question and which are due to acts or default
on the part of the Contractor. 25
Clause J.J - Time for Completion
Arbitrator
Role of the Arbitrator
There are two roles set out in C lause 14.3(5). First, it is expressly
provided that the arbitrator (or any other tribunal) in considering the
dispute shall not take into account information which was not available to
the SO at the time when the SO made his original decision to make or not
to make an extension of time. Second. it is implied that the arbitrator shall
not entertain a claim for a greater extension o f time than that notified
pursuant to Clause 14.3( 1) nor advance new or additional grounds not
submitted to the SO before he made his decision.
Cross References

(Excepted Risks).28 7 .1 (Notices and Fees - Generally),29 10.4 (Cost of
Test), 10.6 (Uncovering and Making Openings),30 12.2 (Site
Possession).31 13. 1(2) (Suspension of Work).32 3.4 (Need for Further
Drawings, etc).n 18.4 (Contractor to Search).:i-i 5.2 (Artificial
Obstructions).35 9 (Programme for the Works) 36 and 34 (Settlement of
Disputes).37
Clause 14 is mentioned in Clauses 3.6, 5.2. 9.3. 10.4, 10.6. 10.7, 12.3.
13.1 , 13.1(2). 16.l(l) and 16.4.
Even if insufficient information has been provided by the Contractor, the

SO may still grant an EOT based on the information available to him,
taking into account all the matters as set out under Clause 14.3(3). 26
Where the EOT granted is disputed by the Contractor and the dispute
is referred to the SO, the SO shall not take into account any information
not available to him at the time of his original decision.27
22
23
24
25
26
27
See cl
See cl
See cl
See cl
See ct
See cl
28
29
30
31
32
33
34
35
36
37
14.2.
14.3( I).
14.3(2).
14.3(3).
14.3(4).
14.3(5).
106
See ct 14 2(d).
See ct 14.2(e).
See ct 14.2(g).
See cl 14.2(.i).
See ct 14.2(k).
See cl 14.2(1).
See cl 14 2(o).
See cl 14.2(p).
See cl 14.3( 1).
See cl 14.3(5).
!07
C lause 15 - Expediting Progress of Wo rks
Generally
Building and construction contracts usually provide for the Contract
Period which spans from the commencement to the completion of the
Works. What may appear to be inconsistent would be the clause that
prescribes a rate of progress of works. eg due diligence and expedition, as
compared with the clause that leaves the planning of the site operations
and methods of working entirely to the Contractor. This is further
aggravated by another usual provision requiring the submission and
approval of a programme for the works which is declared to be nonbinding nevertheless.
It would appear that for it to be possible LO expedite the progress of the
works, there must be a mechanism to ascertain the existing progress as
well as to be able to so determine that it is slow or not fast enough to
ensure completion on time. It would also appear to interfere with the
Contractor's right to determine his site operations, methods of working
and programme for the works.
This clause has two sub-clauses. It provides a mechanism to regulate the
rate of progress of the Works. 1 hence this clause must be read with
Clause 12.1 (Commencement of Works), which prescribed the rate of
progress of works, ' the Contractor2 shall proceed with due diligence and
expedition and without delay in accordance with the Contract3 and in
accordance with the programme or any re\ised or modified programme
accepted by the SQ-I pursuant to Clause 9'.
The first sub-clause, 15.1. empowers the Superintending Officer (SO)
to notify the Contractor in the event he is of the opinion that the
Contractor's progress is too slow to achieve timely completion, and
I
2
3
4
For definiLion of Works. see cl I. l(ag).

For definiLion of ConLractor, see cl I. I (f).
For definition of Contract, see cl 1. 1(d).
For definilion of Superintending Officer, see cl l. l(ab).
109
Public Secror Standard Conditions of Comract for Construction Works 2005
prescribes that the Contractor shall. on such notice, take steps to expedite
his progress in order to complete the Works. 5 One of the steps includes, if
required by the SO, the preparation of a revised or modified programme
for acceptance pursuant to Clause 9. The last point in this sub-clause is
the provision for the SO to decide whether the Contractor deserves
additional payment by treating the event as a variation.
The second sub-clause provides for the situation where the Contractor
considers it necessary to work at night or on Sundays or public holidays.
Thi s provision should be read with Clause 11 .1 (Days and Hours of
Working). The Contractor may seek the SO's consent which should not
be unreasonably withheld.
Contractor
When notified by the SO in writing, the Contractor is required to take the
necessary steps to expedite progress and complete the Works or the
relevant phase or part. If required by the SO, such steps should include
the preparation of a revised or modified programme for the SO's
acceptance pursuant to Clause 9 (Programme for the Works).6 The
Contractor is also obliged to work at night, Sundays and public holidays
if necessary but he must obtain the SO's consent to do so.
If the SO does not consider that the Contractor deserves additional
payment as allowed by Clause 15. l, then the Contractor's liability is to
bear the cost of expediting the progress of works.
Clause 15 - Expediting Progress of Works
Employer9
Although it is not expressly stated, if the SO issues an instruction for
variation under Clause 15. 1, it can be inferred that the Employer is liable
to pay for the cost of expediti ng the progress of the works.
Role of the SO
The SO's duties in relation to this Clause are four-fold. First, he is
expected to assess whether, in his opinion. the rate of progress of the
Works is too slow to achieve on time completion. Second, if this is so, he
is to notify the Contractor in writing accordingly. Third, he can require
steps taken by the Contractor to include the preparation of a revised or
modified programme for his acceptance under Clause 9. Fourth, if the
Contractor seeks the SO's consent to work at night and on Sundays or
public holidays, the SO shall not unreasonably withhold such consent.
The SO is empowered to issue an instruction for variation in respect of
the steps required to expedite the progress of the Works.
Cross References
The clauses expressly referred to in this clause are Clauses 9 (Progranune
for the Works) and 19.l(f) (Variations). The rate of progress of works
may be found in Clause 12. I ; while the regulation of working at night, on
Sundays and on public holidays is also mentioned in Clause 11 . 1.

The Contractor will not be entitled to any additional payment in such
instances of expediting. Additional payment will only be entitled where
there is an instruction for variation issued by the SO under C lause 19.1 (f)
which envisages a requirement to complete the Works or any phase or
part by a date earlier than the relevant lime for Completion.7 This
speeding up for earlier completion is quite different from that due to slow
progress.
If the notification to expedite necessitates night work or work on
Sundays or public holidays, the Contractor is entitled to seek the consent
of the SO for this, and consent for this by the SO should not be
unreasonably withheld.8
5
6
7
8
Seecl 15. 1
See sub-ell 9.2 (Revision of Programme) and 9.3 (Acceptance of Programme).
For definition of Time for Completion, see cl 1.1 (af).
Sec cl 15.2.
110
For definition of Employer, see cl l.J(m).
Ill
Clause 16 - Liquidated Damages
Generally
Liquidated damages is a contractual remedy. This means that if there is

no express provision in the contract allowing the imposition of liquidated
damages on the Contractor, this remedy is not available. It is a genuine
pre-estimate of the loss suffered as a result of a specified breach and it
must not be penal in nature. Thus. in Beihai Zingong Property
Development Co & Anor v Ng Choon Meng.' the Court of Appeal held
that:
The general rule is that 'the essence of a penalty is a payment of money
stipulated as in terrorem of the offending party; the essence of liquidated
damages is a genuine covenanted pre-estimate of damage' per Lord Dunedin
in Dunlop Pneumatic Tyre Co v New Garage & Motor Co [ 1915] AC 79 at 86.
The problem lies of course in distinguishing between genuine pre-estimates
of damage and assessments that are purely penal. Lord Dunedin makes clear
at page 87 that this is essentially a question of construction to be decided
upon the terms and inherent circumstances of each particular contract, judged
of as at the time of the making of the contract, not as at the time of breach'. it
must also be remembered that when a defendant attacks a clause as a penalty
clause, he is in fact asking the court to relieve him from his contractual
obligations which he had freely undertaken in exchange for good
consideration. Courts therefore would generally preserve the sanctity of
contract freely entered into and will not lightly grant any relief except in
accordance with established principles.
Although the contractual remedy of liquidated damages may be made

applicable to any breach of contract, it is usual to apply liquidated
damages to the delay in the completion of the Works by the contractor. In
theory, liquidated damages may also be made applicable to a delay
caused by the Employer to the progress of the Contractor's Works which
is now covered by a claim under loss and expense incurred by the
Contractor upon such a breach. An important advantage of using the
contractual remedy of liquidated damages as against making a claim for
damages is that the claim for liquidated damages by the Employer does
(1999] 2 SLR 283 at 286 and 287.
113
Public Sector Standard Co11di1io11s of Comract for Co11s1r11ctio11 Works 2005
not require him to prove actual loss suffered as a result of the delayed
completion.
In the absence of a liquidated damages provision, the Employer's
recourse is lo claim damages, that is, monetary compensation. from the
Contractor where proof of loss is required. Thus, in Kassim Syed Ali &
Ors v Grace Development Pte Ltd & Anor,2 the Court of Appeal held that:
It is always open to the drafter of any contract to preserve the

Employer's common law right by incorporating such a provision.
In the next case, the parties are faced with the situation where there is
sectional completion in fact but not c;o provided for in the contract as
regards the imposition of liquidated damages. HHJ Hawser QC in
Bramall & Ogden Ltd v Sheffield City Council ( 1983) 29 BLR 73 held at
page 89: '(i]t would of course be open to the parties to have appropriate
provision in the contract itself so as to deal with the situation. My finding
does not in any event prevent the respondents from claiming damages for
breach of the contract. It seems to me, therefore, that, in the absence of
any provision for sectional completion in this contract, the respondents
were not entitled to claim or deduct liquidated damages as provided in the
Appendix'.
The last English case touches on two points. First whether the
liquidated damages provision would be invalidated by the architect giving
a variation instruction after the extended date of completion, that is,
during the delay period. Second, whether the net or gross method of
calculation of extension of time is correct. In Balfour Beatty Building Ltd
v Chestermount Properties Ltd (1993) 62 BLR l , Coleman J dismissed
the appeal against the finding of the arbitrator on both counts. Therefore,
the court affirmed that the arbitrator was right when he decided that the
architect has the jurisdiction to grant an extension of time for the
completion of the works in respect of a relevant event occurring during a
period of culpable delay. The court also affirmed that the arbitrator was
right when he decided that in granting an extension of time in respect of a
relevant event occurring during a period of culpable delay, the architect
ought to have awarded a 'net' extension of time, that is, one which
calculates the Completion Date by taking the date currently fixed and
adding the number of days which the architect regards as fair and
reasonable.
- --
The burden is on Lhe appellants to show the loss they had suffered [as a result
of the breach of contract]. Here. the appellants had not given evidence: nor
had they adduced any evidence as to the extent of the loss. In the absence of
such evidence, il is hard lo come to any conclusion other than that the
appellants have not suffered any loss. Damages are compensatory, and one
cannot seek compensation in vacuo. Compensation must be measured against
the loss suffered.
Following this, a few cases from other jurisdictions will be looked at to
throw some light on common provisions found in standard forms of
building or construction contracts.
Usually the provision of liquidated damages in a standard form of
contract wou ld require the parties to fill the blank given to indicate the
rate of liquidated damages to be imposed. The courts from England and
New South Wales were asked to interpret the significance of inserting
'Nil' in the blank space where the liquidated damages rate was to be
filled. According to Nourse Ll, at page 39 sitting in the English Court of
Appeal, in Temloc Ltd v Erill Properties Ltd (1987) 39 BLR 30, the
liquidated damages provision 'constitutes an exhaustive agreement as to
damages which are, or are not payable by the contractor in the event of
his failure to complete the works on time'. He then concluded at page 40
that: ' I find it impossible to attribute to parties who complete the
appendix in one way or the other an intention that the employer shall have
the option of claiming damages of precisely the same character but in an
unliquidated amount'.
This may be contrasted with the decision of Giles J sitting in the
Supreme Court of New South Wales in Baese Pty Ltd 1 RA Bracken
Building Pry Ltd (1989) 52 BLR 130. The learned judge held at
pages 138 and 139 that: in my view, on the construction of this contract.
clause 10. 14 was not an exhaustive statement of the proprietor's
entitlement in the event of failure to bring works to practical completion
by the date for practical completion'. 'It seems to me that the function of
clause I0.14 was to enable the proprietor, if he so desired, to cause the
architect as his agent to invoke the machinery whereby liquidated
damages could be assessed, or enable the architect to do so, but that if the
proprietor or the architect did not do so, then the proprietor was entitled
to rely upon his common law right to damages for breach of
clause 1.02.03."
2
This clause has four sub-clauses. This clause primarily regulates the
imposition of liquidated damages. Where the contract is terminated, this
clause must be read with Clause 31.3 (Liquidated Damages after
Termination) which provides for liquidated damages after termination.
The first sub-clause. 16. l. has two limbs. The first limb provides for
the situation where there are no phases or parts in the Works. H also
provides for the payment of liquidated damages by the Contractor3 to the
Employer and, correspondingly, a right of recovery by the Employer.
This clause must be read with Clause 35. the provision for recovery by
the Employer. It provides the Employer with a contractual remedy when
3
4
[ 1998) 2 SLR 393 at 403 and 404.

114
For definition of Contractor. see cl I. I (f).

For definition of Employer. see cl I. I (m).
115
Public Sector Standard Conditions of Corrtract for Co11stn1ctio11 Works 2005
the Contractor breaches the Contract5 by failing to complete the Works6

within the Time for Completion7 or any extended time.8 It is to
compensate the loss suffered by the Employer as a result of the delay in
completion. A Liquidated Damages (LD) rate is agreed at the time of the
Contract. It is a genuine pre-estimate of the loss which the Employer
would suffer as projected at the time of the contract. The second limb
repeats the fust but is applicable to phases and parts in the Works.
The second sub-clause, 16.2, caters to the different situations and
hence provides for different LD rates by giving a formula. The formula
provided states that in the absence of alternative provisions in ~he
Contract, the liquidated damages shall be reduced m the proportion
which the value of the part so certified bears to the value of the whole of
the Works. It is submitted that this formula may not be useful since it is
using as a reference the value of the works and not the loss that would be
suffered in respect of the balance of the Works that remain incomplete.
In any event, the third sub-clause gives protection to the Employer
from being deprived completely of any remedy should the liquidated
damages provision be found invalid. Hence, should any LD rate become
inapplicable, the Employer is still entitled to damages under the common
law which is compensation for the actual loss suffered that is subject to
proof. Therefore, one advantage of the use of LD is that, once agreed and
not made invalid by being a penalty, the Employer need not prove that he
had suffered a loss that is equivalent to the LD rate. Indeed, he may not
suffer any loss and yet is still entitled Lo claim the LD.
The last sub-clause, 16.4, expressly empowers the S09 to grant
extension of time in respect of a delay event occurring after the latest
extended date of completion. Presumably this would address the situation
mentioned in Balfour Beatty. This sub-clause also provides for the ' net'
extension of time approach also addressed in the same case.
Certificate of Substantial Completion 12 in respect of any part of the

Works before the Time for Completion, that is, there is early completion,
the Contractor nevertheless remains liable for liquidated damages for the
failure to complete the remainder of the Works by the Time for
Completion at a reduced rate as prescribed. 13 However, it must be noted
that the payment or deduction of such LD shall not relieve the Contractor
from his obligation to complete the Works'~ or from any other obligations
and liabilities under the Contract. 15 In particular, the provisions of
Clause 16 are applicable to any phase or part of the Works. However,
each phase and part should have a separate rate of LD as stated in the
Appendix. 16
Where any delay is caused by the Employer after the Time for
Completion has expired and the Contractor has yet to complete the Works
or any phase or part of the Works, the Contractor is still obliged to pay or
allow liquidated damages to the Employer as prescribed. However, the
period subject to payment or deduction of liquidated damages would be
reduced by the days as extended by the SO under Clause 14 (Time for
Completion). 17
Should the Employer not be entitled in law to recover liquidated
damages, the Contractor is still obliged to pay the Employer such loss,
expense, costs or damages which the Employer would be entitled under
common law. The amount payable by the Contractor is not limited in any
way whatsoever by the amount of the liquidated damages for which the
Contractor would have otherwise been obliged to pay if payment of
liquidated damages is applicable.18
Consequently, where Clause 35 (Recovery by the Employer) 1s

applicable, the Contractor is exposed to the liability set out in that clause.
Contractor

By Clause 16.4, it is expressly provided that the Contractor is entitled to
an extension of time under Clause 14, and impliedly also entitled to Loss
and Expense 19 under C lauses 22 and 23 where applicable.
Generally, the Contractor is obliged to pay to or allow the Employer

liquidated damages as stated in the Appendix 10 if the Works shall not
have been substantially completed within the Time for Completion or any
extended ti me for the period during which the Works shall so remain
incomplete." Where the Superintending Officer (SO) has issued a
For definition of Contract., see cl l.l(d).
For definition of Works, see cl l.l(ag).
For definition of Time for Completion, see cl 1.1 (af).
See cl 14.
9 For definition of Superintending Officer, see cl l.l(ab).
IO For definition of Appendix, see cl I. I(a).
11 See cl 16.1(1).
6
7
8
116
12
13
14
15
16
17
18
19
See cl 17.1.
See cl 16.2.
See cl 14.
Seecl 16.1( 1).
See cl 16.1(2).
Seecl 16.4.
Seecl16.3.
For definition of Loss and Expense, see cl I. I (q ).
117
Clause 16- Liquidated Damages
Employer

The Employer would be liable to the Contractor in respect of Loss and
Expense which the then Contractor is entitled to arising from the
extension of time granted by the SO pursuant to Clause 16.4 where
applicable.
Further, the SO must decide whether to grant an extension of time and the
length of the same for delays as set out in sub-clauses 14.2(g) to (q)
'Extension of the Time for Completion' which are caused after the Time
for Completion has expired and the Contractor has not completed the
works. all in accordance with the requirements imposed on the Contractor
under Clause 14 (Time for Completion).:!5
Cross References

When the Works shall not have been substantially completed within the
Time for Completion or any extended time made pursuant to Clause 14
(Time for Completion), the Employer is entitled to recover the amount of
liquidated damages from the Contractor for the period during which the
Works remain incomplete after the Time for Completion or any extended
time. This is applicable to any phase and part of the Works. 20 This is
subject to two situations. First, where there is early completion for a part
of the Works, the Employer is entitled to recover liquidated damages
from the Contractor in respect of the remainder of the works at a reduced
amount as prescribed.2 1 Second, where there is a delay caused by the
Employer after the Time for Completion has expired and the Contractor
has yet to complete the Works or any phase or part of the Works, the
Employer is nevertheless entitled to recover liquidated damages subject
to the SO giving the Contractor any extension of time to complete the
same under C lause 14 (Time for Completion).22
In any event, where the Employer is not so entitled to recover
liquidated damages, he remains entitled to recover such loss, expense,
costs or damages as he would have been entitled under common law as if
the provision for liquidated damages had not been part of the Contract.
Further, this right to recovery is not limited in any way whatsoever by the
amount of liquidated damages for which he may otherwise recover. 23
The clauses expressly referred to in this clause are Clauses 14 (Time for
Completion),26 14.2(g) to (q) <Extension of the Time for Completion)27
and 16 (Liquidated Damages)28 and the Appendix. Liquidated damages is
mention in Clause 31.3.
Role of the SO
Clause 16 does not prescribe any role for the SO. However, there are
references to the SO's role prescribed by other clauses. Accordingly,
under Clause 17 (Substantial Completion), the SO must decide whether
and when to issue the Certificate of Substantial Completion in respect of
any part of the Works even before the Time for Completion has expired. 24
20
21
22
23
24
See cl
See cl
See cl
See c l
See cl
16.1
16.2.
16.4.
16.3.
16.2.
25 See cl 16.4.
26 See sub-ell 16. l and 16.4.
27 See cl 16.4.
28 See cl 16.1.
118
119
Clause 17 - Substantial Completion
Generally
It is common in a building or consLruction contract to fix the time for

completion of the works. This may sometimes be called the Contract
Period spanning from the dates of commencement to completion. The
date of completion is ascertained from the contract period added on to the
date of commencement. These are fixed at the time when the contract is
entered into. A failure to fix the time for completion would mean that the
works must be completed within a reasonable time as prescribed by the
common law.
When the Contract is being performed, the Contractor would work
towards finishing all his works on or before the agreed date of
completion. This date may be ascertained from an agreed formula to be
found in the Contract. Some definitions do allow the existence of some
outstanding works while others may not so provide. In most cases, the
date of actual completion is a date that is later than the agreed date of
completion. The time taken for completion of the Works may be longer
than the Contract Period. The additional period that exists after the
contract period comprises two parts. The first part immediately after the
original date of completion is the period where the Contractor is granted
an extension of time up to what is called the latest extended date of
completion. After this date to the date of actual completion is sometimes
known as the delay period in which the Contractor is liable to the
Employer in the sum of liquidated damages imposed for late completion
for the duration of the delay period.
Thus the date of actual completion marks the end of the actual contract
period. This date serves as a milestone for several matters: ( I) the date
marks the last day of consLruction activity and the need for the Contractor
to be in possession of the Site: (2) the date marks the last day of any
contractual obligations imposed on him that terminates with the end of
the actual contract period; and (3) the day marks the last day in the delay
period for which the Contractor is liable to pay the Employer liquidated
damages.
The date of actual completion also marks the beginning of another part
of the Contract, namely, a period of time where the Contractor is required
121
Public Sector Standard Condirwm of Conrracr for Co11s1ruc1w11 Works 2005
Clause 17 - S11bsra1111al Completion
to return to the Site to complete outstanding works where this is

permitted but usually he is required to return to the Site to carry out
remedial works in respect of defects over an agreed period of time
sometimes known as Defects Liability Period or Maintenance Period.
This concept may exist for each phase or part of the Works if it is so
divided.
to him under Clause 17. l(a) and 17.l(b) at his own discretion.9 The
process of achieving such certified completion further takes into account
the instance where work is not so completed. and allows for instruction to
carry o ut and complete the same. 10
The Defects Liability Period is calculated from the date on which
substantial completion is achieved. From this same date, the Contractor's
licence to remain on site also comes to an end, and any further need to reenter is restricted to the carrying out of outstanding work and defects
rectification. 11
This clause has three sub-clau ses. As the D ate of Substantial Completion 1
marks both the end of the delay period in which the Contractor2 is liable
to pay the Employer3 liquidated damages and the beginning of the
Defects Liability Period,4 this clause must be read with Clauses 16
(Liquidated Damages) and 18 (Defects). As the date also marks the end
of the licence to occupy the Site5 under Clause 17.2, this clause must also
be read with Clause 12 (Possession of Site and Commencement of
Works). As Clause 17 .1(I) provides for the Contractor to undertake to
complete outstanding work during the Defects Liability Period, it must be
read with Clause 18 .1(a).
By Clause 1.1(i), the Date of Substantial Completion means the date
stated in a certificate issued pursuant to Clause 17. l or 17.3. What is
stated in this certificate is prescribed in Clause 17.l ( l)(a) which provides
for the Superintending Officer (S0) 6 to issue a certificate stating the date
on which, in his opinion, the Works were s ubstantially completed in
accordance with the Contract.7 In Clause 17 .3, the SO may issue s uch a
certificate in respect of a phase or part of the Works as prescribed.
lt serves a number of very important purposes:
(I)
(2)
(3)
(4)
it provides for the completion of the Works8 if it is substantially

completed;
it commences the Defects Liability Period;
it terminates the Contractor's licence to occupy the Site; and
it provides for the completion of phases or parts of the Works where
these exist.
It is important to note that although it is the Contractor who initiates the

process that brings about the completion of the Works, the clause also
envisages the possibility of the SO exercising either of the powers given
2
3
4
5
6
7
8
For definition of Date of Substantial Completion. see cl

For definition of Contractor, see cl I . I (f).
For definition of Employer. see cl l.l(m).
For definition of Defects Liability Period, see cl I. I (k).
For definition of Site. see cl 1.1 (z).
For definition of Superintending Officer, see cl 1.l{ab).
For definition of Contract, see cl I.I (d).
For definition of Works, see cl I . I (ag).
122
Contractor
The Contractor's twin duties relate to giving notice and an undertaking.
When he considers that the whole of the Works has been substantially
completed, the Contractor may notify the SO in writing to that effect.
This notice musl be accompanied by an undertaking to complete any
outstanding work during the Defects Liability Period. 12
In respect of any phase or part of the Works for which a separate Time
for Completion exists. the Contractor may request the SO to issue a
Certificate of Substantial Completion. 13 This applies similarly for any
substantial part of the Works completed to the SO's satisfaction and
occupied or used by the Employer other than as provided for in the
Contract. 14 In respect also of any part of the Works for which the SO has
issued instruction for early occupation or use by the Employer prior to the
completion of the whole of the Worh. the Contractor may request for the
same issue of a Certificate of Substantial Completion. The prior
occupation or use must not however be one tha1 is provided for in the
Contracl or agreed by the Contractor. 15
Where the SO does not issue the certificate but instead issues an
instruction pursuant to Clause 17.1( I )(b ), then the Contractor is obliged
to comply with his instructions to carry out all the works specified by the
SO in his instruction before the issue of the certificate.
It may be inferred from here that the Contractor's liability to pay
liquidated damages to the Employer is affected by whether the certificate
is issued. Accordingly. if the certificate is issued later, then the
Contractor's liability would be correspondingly increased . The
Contractor's liability to pay more would thus result in an increased
I. I {i).
See provisoincl 17. 1(1 ).

See cl 17.1(I )(b).
Seecl 17.2.
See cl 17.1(1).
13 Seecl 17.3(1)(a).
14 Seecl 17.3(1)(b).
15 Sec cl 17.3(1)(c).
9
10
11
J2
123
Clause 17 - Substantial Completion
expenditure for each Preliminary item to be spent for each day longer that
the issue of the certificate is delayed.
required to be done by the Contractor before such issue of a Certificate of

Substantial Completion. 18
Both these powers may also be exercised by the SO at his discretion
without receipt of any notice or undertaking from the Contractor. 19 In
other words, the SO can certify substantial completion or require works
to be completed before the same; he need not await the Contractor's
notice.
If the SO gives instructions specifying works required to be done, he
may notify the Contractor of any defects that appear after such
instructions and before completion of the works specified therein. Only if
these are completed to his satisfaction will the Certificate of Substantial
Completion be entitled to be issued. 20

By virtue of sub-clauses 17 .1 and 17.3, the Contractor is entitled to the
issue of a certificate stating the Date of Substantial Completion as
prescribed. He is entitled to apply for the issue of the certificate which the
SO must respond based on sub-clause 17.l(l)(a) or (b).
Although the Contractor's licence to occupy the Site terminates on the
Date of Substantial Completion, the Contractor has a right to re-enter the
site for the purpose of carrying out outstanding work and rectification of
defects during the Defects Liability Period. 16
Cross References
Employer

Although it is not expressly provided in this clause, by virtue of the
provision found in Clause 17 .2 where the Contractor is entitled to reenter the Site, it must necessarily be inferred that the Employer is obliged
Lo give the Contractor access.
There is no express reference to any other clause. However, the term

'Date of Substantial Completion' has been mentioned in Clauses 6.3,
25. 1(1), 18. l (a) and 28. 1(1) and the term 'Certificate of Substantial
Completion' has been mentioned in Clauses 12.2 and 16.2.

By Clause 17.2, it may be inferred that with the termination of the
Contractor's licence to occupy the Site, the Employer's right to recover
possession of the Site crystallises. Further, as the Date of Substantial
Completion marks the beginning of the Defects Liability Period, the
Employer's rights given by the Contract become alive.
It may also be inferred from the consequence of the issue of the
certificate stating the Date of Substantial Completion that the right of the
Employer to impose liquidated damages is limited to the delay period
ending with the Date of Substantial Completion.
Role of the SO
On receipt of the Contractor's notice and undertaking, the SO has 21 days
to respond in one of two ways. He may within this period either: ( I) issue
a Certificate of Substantial Completion stating the date on which in his
opinion the Works were substantially completed; 17 or (2) oivc
instructions, in writing, specifying all the works which in his opinionare
16
17
18 Seecl 17. l(l)(b).

19 See proviso in cl 17. I.
20 See cl 17. I(2).
Seecl 17.2.
See cl 17.l(l)(a).
124
125
Clause 18 - Defects
Generally
The common law remedy for the presence of defects is damages whereby
the employer is compensated monetarily for the Contractor's failure to
comply with the contract in carrying out and completing the Works.
Unless it is otherwise provided, the Employer can only hope to recover, in
most instances, the cost of making good the defects. This may not be the
most appropriate way of dealing with defects. First, the Contractor is in a
better position to make good defects as he is already on site. He does not
need to incur a separate mobilisation cost to carry out repair works as
would be required of other contractors. Second, where the making good
of defects requires the use of matching materials, the Contractor is again
in a better position because it is likely that he would have the necessary
stock of building materials to fulfil this requirement. Third, the
Contractor would also be quicker in responding to any request for making
good as compared to other contractors. However, it is also common to
provide for the Employer to engage other contractors to carry out the
repair works if the Contractor fails to respond as prescribed. This is to
ensure that the defects are repaired even if the Contractor, for whatever
reason, fails to carry out the repair works.
In providing contractual remedies. one issue of concern is whether the
common law remedies have been displaced. In HW Nevill (Sunblest) Ltd
v William Press & Son Ltd,1 the court was posed the issue of '[w]hether
the plaintiff's remedies in respect of the alleged defective work are
limited to the remedies specified in clause 15 of the agreement, and
whether accordingly the plaintiff is not entitled to recover damages
therefor '. Judge Newey QC said:
... Clause 15(2) and (3) gave only a right to re-enter to such extent as was
necessary to remedy defects pursuant to a schedule prepared or instructions
given by the arch.itecl. I th.ink that defects in the drain discovered after the
certificate of practical completion had been given undoubtedly constituted
breaches of contract. Clause I 5(2) and (3) provided an efficient way of
( 1982) 20 BLR 78 at 86-88.

127
dealing with defects to the advantage of both parties. If Nevil had had to seek
contractors new to the site to do remedial work it might well have had
difficulty in finding them. It would also almost certainly have had to pay them
more and would then have sought to have recovered from William Press more
than the cost to William Press of making good the defects. Whether a clause
such as Clause 15 limits a party's remedies to that provided by the clause
depends on the construction of the contract, see Lord Denning MR in
Hancock v Brazier (1966] I WLR at 1317. A clause such as Clause 15,
merely created a simply (sic) way of dealing with part of a situation created
by breaches of contract, is not to be read as depriving the injured party of his
other rights.
This decision was adopted in the Singapore case of Raymond
Construction Pte Ltd v Low Yang Tong & Anor. 2
Clause 18- Defects
with the SO who is required to express an opinion as to whether the need

for the works is based on one of the Lhree specified situations.
The third sub-clause, 18.3. also requires the SO's opinion as regards
whether it would be impractical or inconvenient to rectify any Defect in
which case, the Employer 12 may recover from the Contractor, an amount
representing the diminution in the value of the Works.
In the fourth sub-clause, 18.4, there is a contractual right available to
be exercised by the SO to instruct the Contractor to search for the cause
of any Defect, shrinkage or other fault in the Works appearing at any time
from the commencement of the Works to the end of the Defects Liability
Period.
The last sub-clause, 18.5, preserves the Contractor's liability for
defective work at common law.
Intention of t he Clause
This clause has five sub-clauses. This clause concerns not only Defects3
which is also the heading for this clause but also outstanding work at the
Date of Substantial Completion 4 as well as shrinkages and other fault. By
Clause l.1 (j) 'Defect' means:
any part of the Works5 not executed provided or completed in accordance with
the Contract.6 For the avoidance of doubt and without limiting the generality
of the expression the term shall be taken to include any item of Plant.7
material, goods or work incorporated or used in the Works which does not or
may not conform to the relevant quality standards or pass the tests prescribed
in or to be inferred from the Contract.
The fust sub-clause, 18.l has two limbs. The first limb provides for the
Contractor8 to complete with due expedition and without delay the works
which were outstanding9 at the Date or Dates of Substantial
Completion. 10 The second limb provides for the execution of a ll such
works of amendment, reconstruction and remedying defects, shrinkages
or such other fau lts of whatever nature as instructed by the
Superintending Officer (S0). 11
The second sub-clause, 18.2, contractually allocates the burden of
bearing the cost of carrying out the works prescribed in Clause 18.1. The
task of ascertaining whether the Contractor is to bear the cost or not, lies
2
3
4
5
6
7
8
9
I0
11
(1998) 14Const U 136.

For definitton of Defect, see cl I. I (j).
For definition of Date of Substantial Completion, see cl I. I (i).
For definition of Works, see cl 1. 1(ag).
For definition of Plant, see cl I . I (v)
For definition of Contractor. see cl 1. 1(1).
See also cl 17.2.
See also cl I. I (h).
For definition of Superintending Officer, see cl I . I (ab).
128
Contractor
Generally, there are three main obligations imposed on the Contract~r 13 in
this clause. First, the Contractor must complete any work outstanding at
the Date or Dates of Substantial Completion at or before the expiration of
the Defects Liability Period 14 under the following conditions: (a) with
due expedition; (b) without delay; (c) as may be instructed by the S0; 15
(d) by achieving the condition required of the completed works as
required by the Contract; 16 and (e) by meeting all other requirements of
the Contract. 17
Second, the Contractor must execute all such works of amendment,
reconstruction and remedying defects, shrinkages or such other faults of
whatever nature as the SO may al any time during the Defects Liability
Period or within 14 days after its expiration instruct the Contractor to do
the same bearing in mind that the Works is intended to be in a condition
as required by the Contract and must meet all other requirements of the
Contract at or before the expiration of the Defects Liability Period. 18
These works are to be done at the Contractor's own cost when the SO
is of the opinion the work is necessitated by: (a) a Defect; (b) any fault in
a design which the Contractor is responsible; and {c) the Contractor:s
neglect or failure to comply with any express or implied obligation on his
12
13
14
15
16
17
18

See also cl I. l(e}.
See also cl I.I (j).
See also cl l.l(w).
See also cl J.l(c).
See cl 18.1 (a).
Seecl 18.l(b).
129
Public Sector Standard Conditions of Contract for Co11srrucrio11 Works 2005
Clause 18 - DefeCI.t
part. 19 Nevertheless, the Contractor is still liable under the Contract or

otherwise for defective work at common law. 20
Third, the Contractor must search for the cause of the Defect,
shrinkage or other fault which appears at any time from the
commencement of the Works to the end of the Defects Liability Period
under the direction of the SO if he so instructs. The Contractor must bear
the cost of the work carried out in searching the same if either the
Contractor is liable for the same, or the necessity for such a search is
caused by the Contractor or arises from some default by the Contractor.
In addition, he must repair the same at his own cost if the Contractor is
liable for the same. 21
Where by Clause 18.3 the SO is of the opinion that it will be
impracticable or inconvenient to rectify any Defect, the SO must
ascertain the amount of the diminution in the value of the Works for
which the Contractor is liable to the Employer.
Nevertheless, the Contractor is still liable under the Contract or
otherwise for defective work at common law.22
Contractor executes any works of amendment, reconstruction and

remedying defects, shrinkages or such other faults as prescribed by
Clause 18. l(b), the Employer's rights under the provisions of any
guarantee relating to the Works or any phase or part of the Works
required by the Specifications or provided by any supplier or subcontractor are not to be prejudiced in any way by the same. 24
Although the Employer has a right to recover the amount of
diminution in the value of the Works as ascertained by the SO caused by
any Defect which the Contractor would have been liable to rectify at his
own cost but in the opinion of the SO it would be impracticable or
inconvenient to rectify, 25 the Contractor is still liable under the Contract
or otherwise for defective work at common law. 26

The Contractor is entitled to payment as a variau on ordered under
Clause 19 (Variations to the Works) in accordance with Clause 20
(Valuation of Variations) if the Contractor executes any works as
instructed by the SO and the SO is not of the opinion that the work is
necessary because it is ( 1) a Defect; (2) a fault in a design for which the
Contractor is responsible; or (3) the neglect or failure on the part of the
Contractor to comply with any of his obligation, express or implied.23
Employer
Although it is not expressly provided, it can be inferred that the Employer
is liable to the Contractor under Clause 18.2 for the cost of the work done
by the Contractor if the need to carry out the works was not because of
the situations set out in Clause l 8.2(a) to (c).
When the Contractor completes any work that is outstanding at the Date
or Dates of Substantial Completion as prescribed by Clause 18. l (a) or the
19
20
21
22
23
See cl
See cl
See cl
See cl
See cl
Role of the SO
There are two aspects of the role of the SO in this clause, namely,
completion of the outstanding works and making good of defects. First,
the SO is empowered to instruct the Contractor to complete any work that
is outstanding at the Date or Dates of Substantial Completion.27
Second, the SO is empowered to instruct the Contractor at any time
during the Defects Liability Period or within 14 days after its expiration
to execute all works of amendment, reconstruction and remedying
defects, shrinkages or such other faults of whatever nature. 28 Related to
this power, the SO must decide whether the Contractor is to execute the
said works at his own cost or not. The SO must give his opinion as to
whether the work carried out by the Contractor pursuant to
Clause 18.1 (b) was necessitated by: ( l) a Defect; (2) the Contractor's
fault in a design which he is responsible for; or (c) the Contractor's
neglect or failure to comply with his express or implied obligation. 29
If the SO is of the opinion that it is so necessitated, the Contractor must
bear the cost of the said works. [f the SO is of the opinion that it is not so
necessitated, the SO must proceed to value such work in accordance with
Clause 20 (Valuation of Variations) as if it were a variation ordered under
Clause 19 (Variations to the Works) but shall not otherwise be construed
as a variation subject to the com pliance by the Contactor with Clause 23
(Procedure for Claims). 10
24
25
26
27
28
29
30
18.2.
18.5.
18.4.
18.5.
18.2.
130
See cl
See cl
See cl
See cl
See cl
See cl
See cl
18.1.
18.3.
18.5.
18.1 (a).
18.l(b).
18.2.
18.2.
131
Public Sector Standard Conditions of Co111rac1 for Constntction Works 2005
Alternatively. the SO may decide that it will be impracticable or

inconvenient lo rectify a particular Defect. In this case where the
Contractor would have been liable to rectify at his own cost. the SO shall
ascertain the diminution in the value of the Works that is due to the
Employer from the Contractor. 31
Finally, the SO is empowered to instruct the Contractor to search under
his direction for the cause of any Defect, shrinkage or other fault in the
Works which appear at any time from the commencement of the Works to
the end of the Defects Liability Period.32
Clause 19 - Variations to the Works
Cross References
The clauses expressly referred to in this clause are Clauses 18.1 to 18.4
(Defects),33 18.1 (b) (Completion of Outstanding Works),34 19 (Variations
to the Works), 35 20 (Valuation of Variations)36 and 23 (Procedure for
Claims). 37
Defect is mentioned in Clause 10.7 while defects is mentioned m
Clause 17. I (2)(a). Outstanding work is mentioned in Clause 17. I ( I).
31
32
33
34
35
36
37
See cl
See cl
See c l
See cl
See cl
See cl
See cl
18.3.
18.4.
18.5.
18.2.
18.2.
18.2.
18.2.
132
Generally
When parties enter into a building or construction contract, the

consideration given by the builder is his promise to build the structure as
defined in the contract documents. On the other hand, the consideration
given by the employer is his promise to pay either as a lump sum for the
scope of works as defined by the contract document without the bills of
quantities or a lump sum as the aggregate of the money totals in the
constituent parts of a Bills of Quantities.
An inherent feature of a building or construction contract is the
uncertainty in the scope of the works, for example, there may be
provisional items or provisional quantities. There may be: (I) a need to
change the scope of works because of an inadequacy/unsuitability of the
design, non-availability of already specified materials; (2) a change in the
requirements of the employer, contractor or the designer; or (3) a need to
reduce spending arising from the project budget constraints, to na me a
few situations where a change to the original scope of works may be
required.
As a departure from the terms o f a contract is a breach unless both
parties agree to vary the terms of the contract, a variation to the Works
would require the parties to enter into a new contract for each and every
change to the original scope of works unless an agreement to provide for
changes has been incorporated in the contract. Hence a provision for
variations is usually found in every building and construction contract.
Although such a clause may be in place, a departure from this clause
would in the same way be a breach of contract unless sanctioned by the
parties. Therefore, the drafting of a 'variation clause must be sufficiently
wide to avoid the consequence of a departure from an inadequately
drafted variation clause.
Usually a change in the original scope of works has a cost implication.
Thus. an omission of works would result in a reduction of the original
Contract Sum and correspondingly an addition would result in an
increase in the origi nal Contract Sum. The identification of whether a
c hange has taken place requires the interpretation of contract documents
to define what the original scope of works is in order to determine what is
133
10
the Works
claimed to be a variation is indeed a change from the original scope of

works. Thus in Williams v Fitzmaurice (1858) 3 H & N 844, where there
was a contract to build a house 'to be completed and dry and fit for Major
Fitzmaurice's occupation', a claim for payment of floorboards was not
successful although floorboards were omitted from the specification.
Presumably, it cannot be interpreted that a house fit for human occupation
did not include floorboards.
It must further be appreciated that ascertaining that there is a c hange
would usually result in a change in the original Contract Sum. However,
whether a change has any monetary implication depends on the
mechanism for payment. Thus, in a contract where the parties have
agreed to maintain a guaranteed maximum price (or sometimes known in
the industry as GMP), there may be a situation where certain variations
may not be paid for.
The other feature in a 'variations clause' is the scope of the authority
of the Employer's agent, whether Architect, Engineer or Superintending
Officer (SO), to order variations. This must be clearly defined so that both
the Contractor and the Employer's agent are aware of this authority and
will respond accordingly.
Examples of variations are set out in items (a) to (f) inclusive of

Clause 19. l. It includes but is not restricted to any of these:
Intention of the Cl ause
However, what would have been a variation will not be a variation if ii

has arisen due to or is necessitated by or is intended to cure any default of
or breach by the Contractor.
The second sub-clause, 19.2, defines the scope to order variations.
First, the S0 17 is e mpowered lo issue instruction requ iring a variation 1g al
any time. It would appear that the SO must identify in his written
instruction that what he is ordering is a variation otherwise the Contractor
may notify the SO staling that he considers the instruction to contain a
variation. The SO may respond to confirm, modify, rescind or contradict
in writing. The Contractor is then required to comply forthwith. The need
to identify whether what has been ordered is a variation is important as a
variation would trigger off the application of the next clause, subject to
Clause 19.3.
In the third sub-clause, 19.3, the SO may requi re a submission of a
quotation from the Contractor 19 for any proposed variation. The SO may
This clause has three sub-clauses. This clause must be read with the
following Clause 20 since the next clause provides for the valuation of
variation. 'Variation' is defined in the first sub-clause, 19.1, and not in
Clause 1.1. The general definition of variation' is any change in the
original intention o f the Contract as deduced from the Contract as a
whole describing or defining the Works 1 to be carried out. 2 By
Clause l.l (d), 'Contract' means the Conditions3 and Appendix,4 the
Specifications, 5 Drawings,6 Schedule of Rates7 (if any), Bills of
Quantities (if any), the Tender,8 Letter of Acceptance,9 Agreement and
such other letters and documents as the parties may expressly identify in
writing and agree as forming part of the contract. Where the contract uses
bills of quantities, then this clause must be read with Option Module A. It
is nevertheless a variation even if it is designed to alter the use to which
the Works will be put.
I
2
Clause 19 - Variations
3
4
5
6
7
8
9
For definition of Works, see cl l . l(ag).

See cl 19.1.
For definition of Conditions. see cl l.l(c).
For definition of Appendix, see cl I . I (a).
For definition of Specifications, see cl l. l (aa).
For definition of Drawings, see cl I . I (I).
For definition of Rates, see cl I I (x).
For definition of Tender. see cl I. I (ad).
For definition of Letter of Acceptance, see cl I . I (p).
134
(1)
(2)
(3)
(4)
(5)
(6)
10
11
12
13
14
15
16
17
18
19
an increase or decrease in the quantity of any part of the Works;io

an addition to or omission from the Works; 11
a change in the character. quality or nature of any part of the
Works; 12
a change in the levels, lines, positions and dimensions of a ny part of
the Works; 13
the demolition of or removal of any part of the Works no longer
desired by the Employer 1 ~ or the SO: 15 and
a requirement to complete the Works or any phase or part by a date
earlier than the relevant Time for Completion. 16 This must not be
confused with the requirement to expedite work under Clause 15 .1
which may be used in a situation where the rate of progress of the
Works is in the opinion of the SO too slow to achieve completion by
the Time for Completion of the Works and the required expedition
of the Works is to ensure completion in accordance with the
Contract.
See cl 19. I(a).

See cl 19.l(b).
Seecl 19.l(c).
Seecl 19.l(d)
For definition of Employer, see cl I l(m).
See cl 19.l(e).
See cl 19.1 (f). For defirution of Time for Completion. see cl I I (af).
For definition of Superintending Officer, see cl l. l(ab).
See cl 19.2.
For definition of Contractor, see cl I I (f).
135
Clause 19
Public Sector Standard Co11ditio11s of Co111ract for Co11structio11 Works 2005
accept the quotation and consequently Clause 20 is not applicable and

neither will the Contractor be entitled to any Loss and Expense. 20

The Contractor's obligation in this clause is to carry out the SO's written
instruction that requires a variation. By Clause 2.5, where the SO's
written instruction does not indicate that a variation has been ordered and
the Contractor considers that it does, then the Contractor's obligation to
comply with the SO's written instruction is postponed to the time when
the Conuactor receives the SO's response to the Contractor's query which
must be sent within 14 days from the date of receipt of the instruction. If
this notification is confirmed, modified, rescinded or contradicted by the
SO, the Contractor is required immediately to comply. 21
If required to submit a quotation by the SO before he issues an
instruction for any variation, the Contractor shall be obliged to submit
such quotation in writing and at hjs own cost. 22
Where the SO has written instructions ordering work to be done without
classifying the work as a variation, the Contractor is entitled under
Clause 19.2 to query the SO as regards the classification. Presumably, if
there is a djspute or difference as regards this classification, Clause 34
may be invoked.
Clause 19.3 provides for the agreement of a price for work done as a
variation. Thus, the Contractor is entitled lo be paid the amount that he
quotes if the SO accepts the Contractor's quotation in writing either
before or after issuing an instruction requiring a variation. However, this
right replaces both the Contractor's right to payment given by virtue of
the valuation mechanism found in Clause 20 and the Contractor's right to
any Loss and Expense under Clauses 22 and 23.
the amount comes only when the amount is certified as due under
Clause 32.
Contractor
Variatw11s to the Works
By Clause 19. l (e), the Employer is empowered to authorise the SO to

issue a variation in respect of the demolition or removal of any part of the
Works no longer desired by him.
Role of the SO
The SO is empowered at any time to order vanat1ons by issuing
instructions in writing requiring such variations. If challenged and
notified by the Contractor that an instruction does require a variation
when it does not state so, the SO has the discretion, within 14 days of
receipt of the Contractor's notification, to confirm, modify, rescind or
contradict his original instruction. 23
The SO has the option of obtaining a quotation for any proposed
variation from the Contractor before issuing any instruction and may,
before or after issuing the instruction, accept the Contractor's quotation
in writing. It must be noted that an instruction requiring a variation is not
to be treated as an acceptance of any quotation.
Cross References
The clause that is expressly referred lo in this clause is Clause 20
(Valuation ofVariations). 24 'Variations' is mentioned in Clauses 7.2, 10.4,
18 .2, 21.l, 22.l(a) and 22.l(b); while Clause 19 is mentioned in
Clause 18.2; and Clause 19.l is mentioned in Clauses 13.2 and 15.1 as
well as in Clause A2.0 of the Option Module A Bills of Quantities;
Clause 19.2 is mentioned in Clause 20.4 and Clause 19.3 is mentioned in
Clause 20. l.
Employer
While there is no express mention of the Employer's obligation or
liability in this clause, he is bound by any authorised acts of the SO.
Accordingly, if the Contractor's quotation is accepted, the Employer
would be liable to pay the accepted amount although his obligation to pay
20 For definition of Loss and Expense, see cl 1.l(q).

2 1 Seecll9.2.
22 See cl 19.3.
136
23
24
See cl 19.2.
See cl 19.3.
137
Clause 20 - Valuation of Variations
Generally
Under the common law, where work is earned out pursuant to a request,
a quantum meruit may be payable by the person requesting for work
done. Similarly where parties fai l to agree a price for work done, the
common law remedy of quantum meruit may be used to ascertain the
amount payable. Thus, if parties are able to state in the contract a
mechanism to value the amount to be paid for work done. the contractual
provision would be applicable.
In the valuation of work done, there are usually two components. First,
the quantity of work done as a composite item, eg a concrete culvert
together with a full description of the component parts or as an individual
item of material such as an item of concrete. an item of reinforcement
bars of a particular diameter and other relevant description. Second,
a money rate, eg $X per number of the concrete culvert as described; $Y
per cubic metre of concrete or $Z per kg of the specified reinforcement
bar. The money rate is built from every factor affecting the cost of the
completed work, eg if the material specified is scarce. then the price may
be very high, or if the work concerned is to be carried out in very difficult
conditions, then again the price would be high so that it is reflective of the
cosl incurred in carrying out work in difficult conditions. However,
parties must be aware that the money rates may also be used as part of a
pricing strategy that does not reflect the actual cost of work done.
Since every building or construction contract wou ld have provided for
the money rates either in the bills of quantities or the schedule of rates for
lump sum contracts which do not include the bills of quantities as a
contract document. the parties may apply these rates to value the work
done as variations. Whilst the application of existing rates to value
variation works appear to be straightforward, it is in fact far from the
truth. A pre-agreement of the price for work done entails allocating lhe
risk of the uncertainty in the actual cost of carrying out the work at a later
date. This is already happening in respect of the agreed contract sum.
Any fixing of rates for variation work simply aggravates the risk factor
since there is not only uncertainty in the cost of carrying out the works
139
Public Sector Standard Conditions of Co111rac1 for Co11stmctio11 Works 2005
Clause 20 - Vaillation of Variat1011s
but there is also the uncertainty of whether the work will be carried out
and the uncertainty as regards the quantum of variation work.
The usual provision for alternative valuation methods effectively
creates a fertile ground for differences in opinion as regards which is the
applicable method, disagreement as to the value and disputes in the
interpretation of the terms like similar condition and similar character to
name two.
described in the Contract - valuation determined by the Rates for

tbe Works as basis but with fair allowance for any differences in
such conditions and/or quantity:8
(3) where the first two categories under Clause 20.1 (a) and 20.1 (b) do
not apply - determined by measurement and valuation at fair market
rates and prices:9
(4) where none of the above is appltcable or appropriate in the
circumstances - valuation based on the cost of necessary plant,
materials or goods, labour and any additional equipment necessary
for execution of the varied work plus I 5Cf: 10 and
(5) for items omitted - valuation determined by the Rates for the Works
as set out in the Contract. with the proviso that if the omissions V)'
the conditions under which any remaining items of work are cagied
.,Q!lt. then these are to be determined under the second, third and
fourth categories under Clause 20.1 (b), (c) or (d) as the case may
be. II
This clause has four sub-clauses. This clause has to be read with the
preceding Clause 19 which defines variation and provides for the
agreement of a price under Clause 19.3. If the Contractor's 1 quotation is
accepted, this clause becomes obsolete.
Although this clause is entitled Valuation of Variations. it is also used
to value work done which is described as Provisional Sum ltems2 as
provided in Clause 20.3 unless otberwise provided in the Contract. 1
The methods of valuation may be found in Clause 20.1 and 20.4.
Clause 20.4 should be considered first since the application of
Clause 20.1 is subject to it. Clause 20.4 has four paragraphs and is
applicable when the Superintending Officer (S0)4 orders in writing that
the variation works should be carried out on a daywork basis in
accordance with Clause 20.4( 1). The applicable rates are set out in
paragraph 2, namely, the daywork rates set out in the Contract or where
there is no such rate, tbe rates determined by the SO as that prevailing
when the work is actually carried out. Paragraph 3 stipulates that the
Contractor must submit to the SO for verification, daywork sheets for all
works executed on a daywork basis within three days after the work bas
been executed. The last paragraph requires the Contractor to inform the
SO in advance whenever he proposes to carry out daywork.
Clause 20.1 prescribes the methods of valuation of the variations
which are grouped under five categories:
( l)
(2)
I
2
3
4
5
6
7
varied work of similar c haracter executed under similar conditions,

and which does not significantly change the quantity of work
described in the Contract - valuation determined by the Rates5 for
the Works6 set out in the Contract;7
varied work of similar character not executed under similar
conditions, or involving significant changes in the quantity of waQ_
For definition of Contractor, see cl 1.1(1).
For deftnilion of Provisional Sum llems, see cl I .l(w).
For definition of Contract, see cl I.I (d).
For definition of Superintending Officer. see cl l.l(ab).
For definition of Rates. see cl ll(x).
Fordefinilion of Works, see cl l.l(ag).
See cl 20. I (a).
140
In any event, by Clause 20.2(1 ). the Contractor is required to carry out the
work even if there is no agreement as to the valuation of the variations.
Clause 20.2(2)(a) to (f) was inserted by the 2004 edition while
Clause 20.2(2)(g) was inserted by the 2005 edition together with the
consequential amendments of replacing 'monthly statement' with
'Payment Claim" 2 and 'payment certificate' with 'Paymen~ Certificate'_.13
The amendments provide for the: (1) procedure to certify substant.J.al
completion of variation works: (2) submission of the Contractor's
valuation of variations; and (3) SO's notification of his valuation to be
followed by the Contractor's notice of disagreement, if any. Should the
Contractor fail to give a notice of disagreement, the Contractor is deemed
to have accepted the valuation of the SO and such valuation is final and
binding on the Contractor. If there is a notice of disagreement given, then
the SO may amend the whole or part of any valuation previously made
and make the necessary adjustment in the next Payment Certificate. Any
outstanding disagreement will be reconsidered by the SO when be issues
the Interim Final Account.
See cl 20. l(b).

Seecl20.l(c).
9
I 0 See cl 20. I (d).
11 See cl 20.l(e).
12 For defirnLion of Payment Claim. see cl l.l (s).
13 For definition of Payment Certificate, see cl I. I(t).
141
Clause 20 - Va/11a1io11 of Variations
Public Sector Standard Conditions of Contract for Co11stn1ctio11 Works 2005
thereafter be disputed or questioned by the Contractor in any way

whatsoever. 20
Contractor

Pending the val uation of the variation by the SO, the Contractor is
obliged to carry out all variations instructed by the S0. 14 When the
Contractor considers that the respective variation works have been
substantially completed, he may give written notice to the SO to that
effect.
Within 30 days from the date of the SO's certification of substantial
completion of the variation works, the Contractor must submit to the SO
a valuation of the said variations together with the details and particulars
including invoices and receipts under Clause 20.2(2)(c). If the Contractor
exercises his right to disagree and gives the SO a written notice of
disagreement pursuant to Clause 20.2(2)(e), the Contractor is obliged to
set out the valuation which he considers should have been made, giving
full details and particulars and the appropriate Contract references.
For work ordered on a daywork basis, the Contractor must submit to
the SO for verification the daywork sheets specifying the number of
hours spent on a daily basis, and statement showing any Plant, 15
Construction Equipment, 16 material and goods necessary for the work
done. This is to be done within three days after the work has been
executed and is a condition precedent to payment. 17 When undertaking
such work, the Contractor is required to inform the SO in advance
whenever he proposes to carry out daywork.18 Accordingly, the
Contractor is exposed to the liability of carrying out the dayworks at his
own cost since the above obligation is a condition precedent to payment
under Clause 20.4(3).
On notification of the valuation made by the SO, the Contractor has 30
days from such receipt to disagree with the value of the variation. Such
disagreement must be notified in writing to the SO setting out the
valuation which the Contractor considers should have been made, giving
full details and particulars and the appropriate Contract references.19
Whilst the Contractor has a right to disagree with the SO's valuation, his
failure to give the requisite notice of disagreement will mean that the
Contractor is deemed to have accepted the valuation, and that such
valuation shall be final and binding on the Contractor and shall not
14
15
16
17
I8
19
See cl 20.2( I).

For definition of Plant, see cl I. I(v).
For definition of Construction Equipment, see cl I.I (g).
See cl 20.4(3).
See cl 20.4(4).
See cl 20.2(2).
142
Employer21

Although it is not expressly provided in this clause, the Employer would
be liable to pay the amounts certified by the SO as described in
Clause 20.2(d) and would be obliged to pay the certified amount pursuant
to Clause 32. lf the SO's valuation becomes final and binding on the
Contractor, then the Employer's liabiJjty is limited to the amou nt that is
final and binding on the Contractor.
Role of the SO
Where it is in his opinion necessary and desirable to order work to be
executed on a daywork basis, the SO shall do so in accordance with the
provisions of Clause 20.4.
The SO's main role under this Clause is the making of the valuation
which in his opinion is reasonable and the notification to the Contractor
in writi ng of the value of the variation.22
Where there is disagreement by the Contractor, the SO may. after
receipt of the Contractor's notice of disagreement. amend the whole or
any part of any valuation previously made. In such instance, the
provisions of Clause 20.2(2) in respect of disagreement by the Contractor
shall apply mutat is mutandis.23
The SO must ensure that the Contractor carries out the variation works
even though valuation of the variations is pending. Further, he must
certify substantial completion as required either in response to the
Contractor's written notice or on his own volition.
Cross References
The clause that is expressly referred to in this clause is Clause 19.2

(Power to Order Variations) 24 and 19.3 (Submission of Quotations). 25
Clause 20 is mentioned in Clauses 4.4(2), 10.4, 18.2 and 23.1 (I);
while Clause20. l(a) and 20.l(b) are mentioned in ClauseA2.0( l ) of
Option Module A Bills of Quantities; 'valuation of variations' is also
20
21
22
23
24
25
See cl 20.2(2).
See cl 20.2(2).
See cl 20.2(3).
Sec cl 20.4(1 ).
See cl 20.1.
143
Public Sector Standard Conditions of Contract for Constmction Works 2005
mentioned in Clause 21.l(a) and 'Provisional Sum Items' is also found in

Clause 14.2( I ).
Clause 21 - Measurement
Generally
Joint measurements on site are a constant feature of construction work.

They could be necessitated by work that is to be subsequently covered up
or by the need to support valuations and valuations of variations. The
basis for facilitating these and the nature of their significance and
agreement are important requirements to be adhered to.
This clause has four sub-clauses. The clause spells out the procedure to
adopt when some part of the Works 1 is required by the Superintending
Officer (S0)2 to be measured. It allows for joint measurement, by the
Contractor3 and SO, which is necessary for any valuation or valuation of
any variation.4 The proper recording of joint measurements and the
appropriate procedure in the event of a fai lure to agree on measurements
are further enumerated. 5 This clause may be read with Clause 10.S which
provides fo r the examination and measurement of Works in situations
where Works are to be covered up.
In the first sub-clause, 21.1, the need for this clause is given in that this
clause is activated only when the SO requires any part of the Works to be
measured for the purpose of carrying out any valuation. presumably
whether for variations or payment certification. He must, however, give
reasonable notice to the Contractor to get the mechanism started. There is
also the stated intention that the mechanism should help achieve an
agreed measurement. This sub-clause may be read with Clause 36.2 in
respect of how the notice is to be communicated.
1
2
3
4
5
144

Fordefini Lion of Supennlending Officer, see cl l.l(ab).
For definition of Contractor. see cl 1 I (f).
Seecl21.l(a).
145
Clause 21 - Measurement
Public Sector Standard Conditions of Contract for Consrruction Works 2005
Both paragraph (b) of the first sub-clause, 21.1, and the second subclause, 21.2, together sel out what is required of the Contractor before the
actual measurement taking place.
While it is the intention of this clause to provide for a joint
measurement, the third sub-clause, 21.3, envisages that the Contractor
may not be represented at the measurement exercise and this sub-clause
therefore provides for the default situation and declares that the
mea5urements made by the SO and notified to the Contractor in writing
would be taken to be correct and final and binding in order to avoid any
dispute as regards the measurement done by the SO only.
Alternatively, the last sub-clause, 21.4, provides for the situation where
the measurement was done in the presence of the SO and the Contractor
and/or his representative but there is no agreement on the whole or part of
the measurements. The Contractor may register his disagreement as
prescribed.
Employer9
Whether the measurement took place jointly with the Contraccor or not,
there is no express provision as regards the Employer's position vis-a-vis
the status of the measurement. Thus, while the Contractor may challenge
the correctness of the measurement under Clause 21.4 where joint
measurement took place, there is no express provision for the Employer
to challenge. Correspondingly, where the Contractor was not present at
the measurement carried out by the SO, it is expressly provided by
Clause 21.3 that the measurement becomes final and binding on the
Contractor but nothing is mentioned about the Employer.
Role of the SO
Contractor
When notified by the SO, the Contractor is obliged to attend forthwith or
send a properly qualified and authorised representative to take the joint
measurements with the SO. He is obliged to supply documents and
information necessary for such measurements. Assistance and appliances
necessary for the measurement are to be provided by the Contractor at his
own cost. 6
In breach of his obligation to attend or send a representative, the
correctness of the measurements made by the SO is imposed on the
Contractor and the measurement becomes final and binding on the
Contractor. 7
The SO is the deciding authority on when any part of the Works is to be

measured and essentially has to give reasonable notice to the Contractor
for this joint measurement. The SO is empowered to reasonably require
the Contractor to supply documents and information necessary for the
tiling or calculation of any measurement and all other particulars for the
purpose of establishing an agreed measurement. 10
It is implied that in the event of a failure to agree on measurements that
is notified by the Contractor to the SO, the matter should be dealt with by
the SO after receipt of such notice.
Cross References
There is no express reference to any clause. As the stated reason for
measurement is for the purposes of any valuation, including valuation of
any variation, two clauses may be relevant, that is, Clauses 20 (Valuation
of Variations) and 32 (Progress Payments and Final Account).
Where the Contractor participates in the joint measurement, the

Contractor is entitled to notify the SO in writing within 14 days of the
date upon which measurements were taken, in the event of a failure to
agree on measurements, stating in what respects the measurements are
not accepted as correct and setting out documents and information in
support. 8
Where the Contractor fails to attend the joint measurement, he loses
his right to challenge the correctness of the measurement as the express
provision of Clause 21.3 makes the measurement made by the SO, that is
notified in writing to the Contractor, final and binding on the Contractor.
6
7
See cl 21.1.
See cl 21.3.
See cl 21.4.
9
I0
146
For definition of Employer, sec cl I . I (m).

See cl 21.1.
147
Clause 22 - Claims for Loss and Expense
Generally
Loss and expense provisions in standard contract forms are designed

primarily to deal with the Contractor's entitlement to payment for
disruption and prolongation costs. Regular progress and/or completion of
the Works must have been materially affected before the Contractor is
allowed such entitlement. Such provisions serve to reimburse the
Contractor by putting him back into the position in which he would have
been if the breach of contract by the Employer had not occurred. The use
of the dual phrase 'loss and expense' envisages two heads of claim:
(1) actual losses incurred due to the circumstances that gave rise to the
entitlement; and (2) actual expenditure as a result of the same set of
circumstances. Similar and equivalent to damages recoverable at
common law for breach of contract, such allowable claims can exist
additional to and not as a replacement for the common Jaw rights, or they
can also be expressly stated as the only contractual avenue for pursuing
such entitlements.
This clause has two sub-clauses. It is a contractual provision which

entitles the Contractor 1 to recover Loss and Expense. 2 It must be read
with Clause 23 which provides a procedure for claims which include a
claim for Loss and Expense. However, this clause does not define the
term 'Loss and Expense'. The definition is fou nd in Clause l.l (q) which
provides the meaning as:
(i)
(ii)
I
2
the direct relevant costs of labour, Plant, materials, or goods actually

incurred; and
costs of an overhead nature actually and necessarily incurred on the
Site but in either case only in so far they would not otherwise have
For definition of Contractor, ~ee cl I. I(!).
For definition of Loss and Expense, see cl 1.l(q)
149
Clause 22 - Claims for Loss and Expense
Public Sector Standard Conditiom of Comract for Construction Works 2005
~~~~~~~~~
been incurred and which were not and should not have been
provided for by the Contractor; and
(iii) 15% of any such costs, such 15% to be inclusive of and in lieu of
any profits, head office or other administrative overheads, financing
charges (including foreign exchange losses) and any other costs,
loss or expense of whatsoever nature and howsoever arising.
By this definition, the Contractor's entitlement to Loss and Expense as
regards the quantum of claim is thus defined.
The clause provides for recovery by the Contractor of Loss and
Expense arising from disruption and prolongation of the regular progress
of the Works. 3 It identifies nine such events that can give rise to a claim
for loss and expense.
The extent of the Contractor's right to claim is set out in several places:
(I) to avoid duplication of claim, Clause 22. l provides that the
entitlement to Loss and Expense comes about only if the Contractor is not
being reimbursed by any other provision; (2) the grounds in support of
the Contractor's Loss and Expense claim are set out in paragraphs (a) to
(i) inclusive of Clause 22.1. There is a consequential amendment of
Clause 22.1 (g) in which the words 'artificial obstruction ' was replaced by
'adverse physical conditions' as a result of an amendment made to
Clause 5 by the PSSCOC 2004 edition; (3) Clause 22.1 further provides a
limitation to the Contractor's entitlement to Loss and Expense in respect
of situations where the same arises from or is necessitated by or is
intended to cure any default or breach of contract by the Contractor; and
(4) by Clause 22.2, it is expressly stated that the Contractor is not entitled
to Loss and Expense except in accordance with the express provisions of
the Contract. This would appear to effectively exclude the common law
right to damages for breach of contract by restricting recovery of such
claims specifically to the provisions of the Contract.~
There is another limitation to the Contractor's claim for Loss and
Expense provided by Clause 19.3. Whereas a claim for Loss and Expense
relating to variation is allowed by Clause 22. l (a) and (b), the Contractor
is not allowed to claim Loss and Expense under Clause 19.3 where the
SO accepts the Contractor's quotation for the proposed variation.
Contractor's obligations and liabilities relating to his rights and remedies

provided by this clause as regards Loss and Expense.
The disruption events that entitle the Contractor to recover loss and
expense are:
(I)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
The proviso states clearly that the Contractor shall not be entitled to any
Joss and expense where it is related to his default or breach of contract,
Contractor
5
6
7
The Contractor's obligations and liabilities are not found in this clause
because it is the intention of this clause to set out only the Contractor's
entitlement to Loss and Expense. The foUowing Clause 23 sets out the
3
4
For definition of Works. see cl I.I (ag).

See cl 22.2.
150
the issue of a variation instruction. 5 Generally, such instructions are

issued under Clause 19.2 while others may be issued under
Clause 7.2;
the issue of an instruction in relation to variations in Provisional
Sum ltems.6 This may be read with Clauses 19.2 and 20.3;
Employer's failure to give possession of Site7 to Contractor under
Clause 12.2;8
suspension by Superintending Officer (S0)9 of any work for a cause
entitling the Contractor to recover loss and expense. 10 This may be
read with Clause 13. I;
late receipt of Drawings, 11 instructions or other information by the
Contractor from the SO pursuant to a notice under Clause 3.4; 12
the issue of instructions by the SO under Clauses 3.6, 4.4, 10.4,
L0.6, 18.2, 18.4 and 25.1(3) where the Employer 13 is liable to pay
the Contractor for any Loss and Expense due to such an
instruction; 14
unforeseeable artificial obstructions for which notice has been given
under Clause 5.2; 15
acts or omissions of other contractors executing work not forming
part of the Contract. 16 This may be read with Clause 12.5; and
any act of prevention or breach of contract by Employer not
mentioned in this Clause. 17
9
10
11
12
13
14
15
16
17
See cl 22.1 (a).

See cl I. I (w} for dcfimuon of Provisional Sum Items. See also cl 22.1 (b).
For definition of Site, see cl l.l(z).
See cl 22. l(c).
For definition of Superintending Officer. ~ce cl I !(ab).
Seecl22.l(d).
For defimtion of Drawings, see cl I.I(().
See cl 22. l(e)
For definition of Employer. see cl I. f(m).
See cl 22.J(f).
See cl 22. l(g).
See cl 22. l (h).
See cl 22. I (i).
151
Public Secwr S1a11dard Co11ditio11s of Comract for Co11Struct1011 Works 2005
that is, if it arises from is necessitated by or is intended to cure any default

or breach of contract by the Contractor. 18
Employer
Clause 23 - Procedure for Claims
The Employer's obligations and liabilities to the Contractor are not

expressly set out in this clause. Accordingly, it must be implied that
where a clause entitles the Contractor to recover Loss and Expense, it
should be a recovery from the Employer.
Cross References
Generally
The clauses that are expressly referred to in this clause are Clauses 12.2
(Site Possession), 19 3.4 (Need for Further Drawi ngs, etc)20 3.6 (Delay and
Time), 4.4 (Responsibility for Identifying Ambiguities, Discrepancies,
etc), I 0.4 (Cost of Test), 10.6 (Uncovering and Making Openings), 18.2
(Cost of Remedying Defects), 18.4 (Contractor to Search), 25.1(3) (Care
of the Works)21 and 5.2 (Artificial Obstructions). 22
The term 'Loss and Expense' is mentioned in the following Clauses:
4.4(1), 4.4(3), 5.2, 10.4, 10.6, 12.3, 13.1(2), 19.3, 23.3, 25.1(3)(b) and
3 I .4(2)(b).
Indirect mentions of the Contractor's Loss and Expense claim may be
found in Clauses 23.5 and 32.1 (d).
Claims made by one party of the contract against another party may be
based on common law or the provisions o f a contract. Whereas the
common Jaw does not impose any particular procedure in general, with
exceptions like rescission wh ich must be pursued within a reasonable
time and before it affects a third party, it is not uncommon for claims
allowed by contract to prescribe a procedure for the contractual claim.
Claims are also regulated by limitation period set either by the Limitation
Act or contractually.
On the other hand, parties may contractually exclude liability or limit
liability in any claim. This mechanism may be weaved into a procedu~e
for claims. A lesson may be learned from section 13(1) of the Unfair
Contract Terms Act (Cap 396) which is beaded by the title 'Varieties of
exemption clause'. A clause may remove or reduce liability by:
(a)
(b)
(c)
making the liability or its enforcement subject to restrictive or

onerous conditions;
excluding or restricting any right or remedy in respect of the
liability, or subjecting a person Lo any prejudice in consequence of
hi e; pursuing any such right or remedy; and
excluding or restricting rules of evidence or procedure.
Thus, it is not unusual that express provisions governing how claims can
be pursued introduce and impose a strict discipline and are in part a
logical extension of loss and expense provisions. Valid cla~ms s~ou~d
ideally be provided for and dealt with without undue delay. This ass ists m
preserving working relationships and also forces the proper r:cord _of
events while they are still fresh. A specified framework for dealing with
such cases facilitates their prompt treatment in clear and definite terms
and their payment through interim certificates once settled.
18 See cl 22. l.
19 See cl 22. l(c).
20 See cl 22. l(e).
2 1 See cl 22. I (f}.
22 See cl 22. J(g).
This clause has six sub-clauses. Th.is clause is to be read with Clause 22
which provide for the Contractor to claim Loss and Expense and other
152
153
Public Sector Standard Conditions of Contract for Consrruction Works 2005
clauses in the Contract which allows a claim. The clause sets out the
procedure to adopt if the ConLractor1 wishes to claim any payment
pursuant to the Contract2 other than in relation to the Clause 20
(Valuation of Variation) provisions. This clause should be read with
Clause 32. l (I )(d) which provides for the Contractor to include in the
Payment Claim any sum which the Contractor is entitled pursuant to
Clause 23.5.
The procedure is started by the giving of a written notice by the
Contractor to the Superintending Officer (SO) that is made a condition
precedent to the successful claim by the Contractor by the first subclause, 23.1. It would appear that the mode of communication for this
situation is not prescribed by C lause 36.2 (Notices).
The procedure also provides for the keeping and verification of
evidence in support of the Contractor's claim. Thus, the second subclause, 23.2, imposes on the Contractor an obligation to keep
contemporary records as required. Further, by the fourth sub-clause, 23.4,
access to all books, documents, papers or records in the possession,
custody or control of Lhe Contractor must be given to the S03 for him to
verify any claim submitted pursuant to this clause. Read together with
these two sub-clauses will be the sixth sub-clause, 23.6 which provides
for the default position where the Contractor did not comply fully or at all
with the two earlier sub-clauses.
The procedure also requires the Contractor to substantiate his claims
under the third sub-clause, 23.3. Within 30 days of giving his notice
under Clause 23.1, the Contractor must give one or more written
account(s) conraining details of the amount claimed and the grounds
upon which the claim is based together with particulars of any claim for
extension of time as required. Where the Contractor fails to give
sufficient substantiation, Clause 23.5(2) becomes applicable for payment
of whatever amount that has been substantiated to the satisfaction of the
SO. This sub-clause should be read with Clause 32.4 (2) (Final Payment
Claim).
The penultimate provision is the certification of such amount for
payment by the SO any claim as the SO may consider due to the
Contractor pursuant to Clause 23.5(1).
The last provision in the form of Clause 23.5(3) ensures that the
Employer is in a position to dispute the Contractor's entitlement to the
claim both in principle and quantum made pursuant to this clause and
certified as due by the SO under Clause 32. Should there be any overpayment to the Contractor, Clause 23.5(3)(b) provides for repayment by
the Contractor to the Employer.
I
2
3
For definilion of Contractor. see cl I. I(e).

For definiuon Contract. see cl l.l(c).
See cl 23.5. For definition of SO, see cl I. I(w).
Contractor

The Contractor has three main obligations if he desires to make a claim
under this clause. First, he must give notice in writing to the SO of his
intention to claim within 60 days afLer the event giving rise to the claim
has first arisen. It should be noted that the giving of such notice is a
condition precedent to any entitlement that he may have. The notice ~as
to comply with the requirements of Clause 23.2 to 23.4, and must specify
the event and its consequences.~
Second, the Contractor is required to keep such contemporary records
upon the happening of the event in respect of which he is intending to
claim. The type of records envisaged is that which may reasonably be
necessary to support the claim that he may subsequently wish to make. If
instructed by the SO, the Contractor is required to keep any further
contemporary records which the SO considers to be material to the _claim.
Related to this obligation to keep contemporary records 1s the
requirement for the Contractor to allow the SO_to inspect al l rec?rds kept
pursuant to this clause, and to supply the SO \.\tth necessary copies of the
same records. 5
Also related to this obligation to keep contemporary records is the
obligation of the Contractor to make available to the SO access to all
books, documents, papers or records in the possession, custody or control
of the Contractor.6
Third, the Contractor must be able to substantiate his claim. This
substantiation takes the form of an account in writing giving detailed
particulars of the amount claimed and the groun~s upon which the claim
is based, submitted within 30 days or such other tJme as may be agreed by
the SO of the giving of notice under Clause 23.1. Where, however, t~e
event that oave rise to the claim is still conti nuing, the account ts
considered ~nly as an interim account, and if required by the SO, the
Contractor has to send further interim accounts at intervals giving the
accumulated amount of the claims and any further grounds upon which
they are based. Within 30 days from the end of the effects resulting from
the event, the Contractor must send to the SO a final account of the
claims. 7
If there is any claim for an extension of time pursuant to C laus~ 14 and
any Loss and Expense associated with this, particulars of such cl~m mu~t
be sent tooether with the above substantiation. Notwithstanding this
obligation ~o submit particulars of any claim for extension of time under
4
5
6
7
See cl 23.1 (1).

See cl 23.2.
See cl 23.4.
See cl 23.3.
155
this clause, the Contractor is still required lo fulfil his obligations under
Clause 14.3(1) with regard to notice for extension of time. 8
Should the Contractor fail to comply with the notice requirement, the
Contractor is liable to bear the cost of the Loss and Expense for which
this clause allows him to claim payment from the Employer. This is
because by virtue of Clause 23.1, the notice is made a condition
precedent to any entitlement that the Contractor may have pursuant to this
clause.
However, pursuant to Clause 23.6, should the Contractor comply with
the notice requirement but fail to keep his obligations either fully or in
part, as regards keeping contemporary records and giving the SO access
to his books and documents, he is liable to bear the part of the Loss and
Expense in which the SO is not prepared to certify as due lo the
Contractor.
Further, should the Contractor fail to substantiate to the satisfaction of
the SO, then he is liable to bear the part of the Loss and Expense in which
the SO is satisfied that the Contractor is not so entitled as provided by
Clause 23.5(2).
Employer
Although this clause has been drafted without mention of the Employer
as regards since obligation and liability to pay. the general obligation to
honour certificates may be found in Clause 32.6. The failure to make
payment would result in the Employer's liability to interest as prescribed
in the same clause.
It is important to note that the SO's inclusion of any amount or payment
by the Employer in any certificate under Clause 32 will not prejudice the
Employer's right to either: (l) dispute the Contractor's entitlement to the
amount certified either in principle or as to its quantification, or (2) from
referring such dispute for decision under Clause 34. 10
Such inclusion will also not be taken into account by the SO or any
arbitrator in deciding whether there is to be any repayment by the
Contractor to the Employer of the whole or any part of such amount. 11

The fundamental contractual right of the Contractor to the Loss and
Expense is set out in the preceding Clause 22. However, the Contractor's
right to be paid Loss and Expense is further regulated. First, by
Clause 23.1(1), the Contractor's entitlement to the Loss and Expense is
dependent on the Contractor giving the requisite notice in writing.
Second, by Clause 23.5(2), the Contractor's entitlement to payment is
dependent on whether the Contractor's substantiation, required under
Clause 23.3, satisfies the SO in getting him to certify the amount claimed
as payable. Third, by Clause 23.6, the Contractor's entitlement to
payment is based on the reasonable assessment, valuation or opinion of
the SO based on the information that is available to the SO.
The Contractor may dispute the SO's assessment, valuation or opinion,
and such dispute will be decided by the SO or the arbitrator (or other
tribunal) on the basis only of the information available to the SO for his
assessment. No account will be taken of any information which the
Contractor did not supply to the SO, and this is regardless of whether or
not he could have done so.9
Role of the SO
With regard to the Contractor's keeping of contemporary records, the SO
may inspect these and may instruct the Contractor to keep any further
contemporary records which he considers to be material to the claim. It
should be noted that this is done without necessarily admitting the
Employer's liability. 12
For events having a continuing effect, the SO may at intervals require
the Contractor to submit further interim accounts of the claim. 13
In order to verify the claim, the SO shall have access to all the books
and documents kept by the Contractor for the purpose of making audit,
examination, excerpts and transcriptions. 1 ~
If all the provisions of Clause 23.1 to 23.4 have been complied with,
the SO may include amounts he consider~ due in payments certified by
him pursuant to Clause 32 (Progress Payments and Final Account). 15
In the event the Contractor fails to supply the SO with sufficient
substantiation, the Contractor's entitlement is in respect only of such part
of the amount claimed that has been substantiated to the satisfaction of
I0
11
12
13
1-l
See cl 23.3.
Sec cl 23.6.
15
156
Sec cl 23.5(3)(a).
See cl 23.5(3)(bl.
See cl 23.2.
See cl 23.3.
See cl 23.4.
Sec cl 23.5(1 ).
157
Public Sector Standard Conditions of Contract for Constmction Works 2005
the SO. ln other words, in deciding the entitlement, the SO need not take
into account any amount which the Contractor has failed to substantiate
to his satisfaction. 16
Arbitrator
Clause 24 - Construction Equipment, Temporary

Works, Materials and Goods
Role of Arbitrator
In deciding a dispute on an assessment, valuation or opinion of the SO

made pursuant to Clause 23.6, the arbitrator (or other tribunal) shall take
into account only the information available to the SO at the time when the
SO made his assessment, valuation or opinion and no account shall be
taken of any information which the Contractor did not supply to the SO,
whether or not he could have done so.
General ly
Cross References
The clauses that are expressly referred to in this clause are Clauses 20
(Valuation of Variations), 17 14 (Time for Completion), 18 32 (Progress
Payments and Final Account) and 34 (Settlement of Disputes). 19
Clause 23 is mentioned in Clause 19.2; while Clause 23.5 is
mentioned in Clause 32.l(l)(d). Further, sub-clauses 23.3, 23.4, 23.5(2)
and 23.6 are mentioned in Clause 32.4(2).
16 See cl 23.5(2).
17 Seecl23. l(I).
18 See cl 23.3.
19 See cl 23.5.
The process of building a structure involves the transformation of goods

that are moveable to being fixed onto the land. that is, fixtures. It must be
appreciated that the quantity of goods brought onto the Site will be in
excess of what goes into the structure as there must be provision for
wastage and left-over. The left-over goods would have to be removed
from the Site. The transformation may be assisted by simple tools like
shovels or complicated machinery like tower cranes. There may also be a
category of materials known as temporary works which are put in place
on a temporary basis to assist in the construction of what is called the
permanent works. The temporary works are subsequently dismantled and
removed from the Site.
The parties involved in the process may include: (l) the goods supplier
who may enter into a sale of goods contract with the Employer, the
Contractor or the sub-contractor; (2) the owners of equipment who may
hire them out to the Contractor or the sub-contractors; (3) the
subcontractor and the Contractor who would enter into a supply and
installation of goods contract; (4) the Employer who is a party to the
building contract with the Contractor although he may not own the land;
(5) the mortgagee bank or financial institution if the land is the subject
matter of a mortgage; and (6) the liquidator of the Employer or the
Contractor.
The ownership, possession and right to use the said goods and fixtures
are governed by a combination of land law and contract law. In
Gebrneder Buehler AG v Peter Chi Man Kwong & Ors, 1 the court
adopted the general maxim of the law that 'what is annexed to the land
becomes part of the land' .2 Thus in the case o f a building contract, 'the
property in materials and fittings, once incorporated in or affixed to a
I
2
158
(198812 MU 69.
The sta!ement of law adopted by the coun was quoted from Holland v Hodgson
(1872) LR 7 CP 328.
159
P11blic Sector Standard Condiriom of Comract for Const metion Works 2005
building, will pass to the freeholder - quicquid pla111atur solo, solo cedit.
once the builder has affixed materials, the property in them passes fro m
him, and at least as against him they become the absolute property of his
employer, whatever the latter's tenure of or title to the land ' .J If there is a
provision in the building contract for the Contractor to unfix and re move
what has bee n fixed, this contractual right may only be used against the
Employer and not 'against a third party e ntitled to the land'. 4 The Court
of Appeal in People 's Park Chinatown Developme/1f Pre Ltd v Schindler
Lifts (S) Pte Ltd,5 adopted the principle declared by Lord Watson in Seath
& Co v Moore,6 which is, ' materials provided by the builder and portions
of the fabric, whether wholly or partially finished, although intended to
be used in the execution of the contract, cannot be regarded as
appropriated to the contract, or as sold, unless they have been fixed to or
in a reasonable sense made part of the corpus'.
The fact that the Contractor is in possession of unfixed goods brought
to the site by the goods supplier or his s ubcontractor does not make the
Contractor the owner of the said goods. The law recognises that the
supplier and the subcontractor may contractually arrange to retain the
title to the goods if payment is not made to them. This would mean that
any attempt by the Employer under the building contract with the
Contractor to vest the property of such goods in himself would fail as the
supplier7 and the subcontractor8 are not parties to the building contract
and therefore are not bound by such a provis ion, and what the Contractor
does not own, he cannot pass the property in the same to the Employer.
A few English cases are examined to shed more light on the
interpretation of some common provisions in building contracts whic h
broadly include: ( I) provisions which attempt to transfer the property in
the goods and equipment from the Contractor to the Employer and a
corresponding provision to absolve the Employe r from the responsibility
for the care of and liability for the same; (2) provisions which provide
forfeiture of the same; and (3) a transfer back from the Employer to the
Contractor presumably at the end of the contract.
In the Privy Council case (where the appeal is from Canada), Bennett
& White (Calgary) Ld v Municipal District of Sugar City No 5 [1951] AC
786, it was observed that:
3
4
5
6
7
This passage is taken from Hudso11 's Building a11d Engineering Contracts (10th ed)
p 655 and used by the Coun of Appeal in People 's Park Chinatown Development
Pte Lid v Schindler Ufts (S) Pte Ltd [1993) I SLR 591at595.
See Hobson 1 Gorrmge [ 18971 I Ch 182 at 192, H11dson 's Building and Engineering
Co111racts (10th ed) p 655 and People 's Park Chinatown De1elopme111 Pte Lid v
Schindler Lifts (SJ Pte ltd [ 1993] I SLR 591 at 595.
[1993( l SLR 59 1 at 595.
(1886) 11 App Cas 350 at 38 1.
See W Ha11so11 (Harrow) ltd 1 Rapid Cil'll Engineering Ltd and Usbome
De1elopmentslld {1987) 38 BLR 106.
See Dawber Williamson Roofing ltd v H11111berside Co11111y Council (1979)
14 BLR 70.
160
Clame 24 - Construction Equipment, Temporan Works, Materials and Goods
The English decided cases have dealt not infrequently with clauses of this
type: Brown v Bateman LR 2 CP 272; Blake v l;:ard 16 WR 108: Reeves "
Barlow 12 QBD 436: In re Keen & Keen (19021 1 KB 555; Hudson, Building
Contracts (7th ed) pp 396, 420; Hart v Porthgain Harbo ur Co ltd [1903] 1
Ch 690. In some of these cases a distinction has been drawn between clauses
which provide that as and when plant or materials are brought to the site they
shall be 'considered' or 'deemed' to become the property of the building
owner; and on the other hand. clauses which provide that they are to 'be and
become' his property. In the former case it has sometimes been held that the
clause was ineffective to achieve its aim and that property remained in the
builder. at the mercy of his creditors and trustee in bankruptcy: see In re Keen
& Keen [1902] I KB 555. When, as in Reeves v Barlow 12 QBD 436,
a decision of the Court of Appeal and, perhaps, the leading decision in the
field, the fonnula is 'be and become' or its equivalent, that case decides that
the clause means what it says, operates according to its tenor, and effectively
transfers the title.
In Brown v Bateman ( 1867) LR 2 CP 272, where the court was required
to interpret the effect of a transfer clause with the words 'shall be
considered' followed by a forfeiture cla use. it was held by Bovill CJ at
page 281 that:
It is not necessary to say whether that clause creates an express legal interest
in the landlord, because in my judgment it confers upon him a clear equitable
right to the materials brought upon the premi~es for the purpose of being used
in their construction, without any actual interference on his part; and none of
the cases cited show that such an equitable interest could not be created. That
being so, the materials could not be liable to seizure under an execution
against the builder. it appears to me that under the (said] clause, [the
landlord] took an immediate interest in the materials.
Similarly, In re Keen & Keen [ 1902] l KB 555, the court had to interpret
the effect of both the clauses. It was held by Bigham J at page 561 that:
But though the goods were at the date of the receiving order the goods of the
builders, the contract provided by clause 20 [the forfeiture clause] that on a
certai n contingency the plant and materials on the premises should be
forfeited to the board. The trustee. when his title to the goods accrued. took
them subject to the contingency. The builder's title to the goods was a
defeasible one, and the trustee could have no berter title. Here, the
contingency happened and transferred the property from the trustee to the
school board.
In the last case, In re Winter (1878) 8 C h D 225, Bacon CJ held at
page 228:
The contract which was made is one of the most fami liar kind. A contractor
brings plant upon the works. and he undertakes that while he is engaged on
the works it shall belong to the Commissioner, and that the things in question
are to be deemed their property, that is to say, that they shall not be removed.
He is entitled to the plant, bccau~e. if he is not, the property has passed from
him. But when the bankruptcy happens he has got this plant, and it passes to
161
his assignees as part of the estate. Does the debtor give Lo the Commissioners
any right to sell or retain this property? IL was not in the contemplation of the
parties, and the Commissioners exercised no rights of ownership. The plant
was to be deemed, for the purposes of the contract only, to be the property of
the Commissioners. They had a right to use it if it was necessary to employ
another contractor .

This clause has six sub-clauses. It covers three broad areas, namely: ( 1) it
attempts to provide for a transfer of the property of all Construction
Equipment,9 Temporary Works, 10 Plant, 11 materials and goods upon
delivery to Site 12 and a transfer back upon the completion of the works,
any balance of materials and equipment; (2) it defines the respective
rights and obligations of the Employer 13 and the Contractor; 14 and (3) it
prescribes the dealing with equipment which are on hire and the situation
where there may be termination of the contract.
This clause is related to Clauses 4.1 and 25. l (l ). Whereas Clause 4.1
sets out the Contractor's obligation where the Contractor is to provide all
superintendence, labour, Plant, Construction Equipment, materials, goods
and all other things, whether of a temporary or permanent nature required
in and for such design, execution and completion of the Works 15 and
remedying of any Defect; 16 and whereas Clause 25.1 (I) provides for the
care of the same from the date of commencement until 14 days after the
Date of Substantial Completion, 17 this clause is concerned about the
status of the said Construction Equipment, Temporary Works, Plant,
materials and goods upon delivery to the site.
This clause should also be read with sub-clauses 31.1 (2), 31.2( I ),
3 1.2(2) and 3 1.4( 1). In addition, this clause should be read with
Clause 32.1 ( l )(b).
Clause 24.l attempts to transfer the property in the same to the
Employer. The concern as regards whether the words ' be deemed to be'
would effectively bring about a transfer of the property in the same from
the Contractor to the Employer is not unfounded in the light of the
English cases. In any event, by the same reference to English cases. it
may be said that even if there is no possible transfer of the property, there
may be created, at least an equitable interest in the same. This is
especially useful since some of the same may already be paid pursuant to
9
10
11
12
I3
14
15
16
17
For definition of Construction Equipment, see cl I. I (g).

For definition of Temporary Works. sec cl l. l(ae).
For definition of Plant, sec cl l.l(v).
For definiti on of Site, sec cl I I (z.).
For definiti on of Employer, see cl I. I(m).
For definiuon of Contractor, sec cl J.l(f).
For definition of Works, see cl I . l(ag).
For definition of Defect, see cl I . I (j).
For definition of Date of Substantial Completion, ~ee cl I . I (i).
162
Clause 24 - Construction Equipmelll. Temporary Warks, Materials and Goods
Clause 32.l(l)(b) and (c) and Clause 32.2. Relating to this is Clause 24.5
which provides for the subsequent revesting in the Contractor of the
property in the Construction Equipment. Temporary Works, Plant,
materials and goods which have been brought onto the Site.
Although it is expressly provided for the transfer of property of the
same from the Contractor to the Employer. there are provisions as regards
how the same may be dealt with by the two parties. Thus, Clause 24.2
provides that the right of the Contractor to the sole use of the same for the
purpose of the Works is not prejudiced. Further the Contractor remains
responsible for the operation and maintenance of the same. However,
except for movement within the Site, C lause 24.l provides that the
Contractor must not remove the same or any part of the same without the
written consent of the Superintending Officer (S0). 18 On the other hand,
the Employer is by Clause 24.3 not liable as prescribed.
Clause 24.4 is dedicated to the situation where equipment is hired. It
provides for the Employer to replace the Contractor as a party in the hire
contract that is between the Contractor and the owner of the equipment in
the event of a termination as provided by Clause 3 1.
This clause is also related to Clause 3 1 which provides for the
consequences of terminatjon as regards the use of the same as prescribed
in C lause 3 1.1 (2), 3 1.2( I ), 3 l.2(2) and 31.4(1 ).
The last sub-clause, 24.6. obliges the Contractor to ensure that the
appropriate provision is found in his sub-contracts to bring about what
has bee n provided in this clause.
Contractor
When the Contractor brings any Construction Equipment, Temporary
Works, Plant, materials and goods onto the Site he is obliged to use the
same exclusively for the execution of the Works. Further, the Contractor
is obliged to seek the written consent of the SO to remove the same or any
part thereof except for: ( I ) the purpose of moving it from o ne part of the
Site to another; and (2) vehicles engaged in transporting any staff, Jabour,
Construction Equ ipme nt, Temporary Works. Plant, materials and goods
to and from the Site. 19
The Contractor is responsible for operating and maintaining
Construction Equipment, Temporary Works. Plant, materials and goods
as required under the Contract although he agrees that the same, when
brought onto the Site, is deemed to be the property of the Employer if
they are owned by the Contractor or by any company in whjch the
Contractor has a controlling interest. 20
18
19
20
For definition of Superintending Officer. see cl I. I(ab).

See cl 24.1.
See cl 24 .2.
163
Clause 24 - Co11stn1ctio11 Equipmem, Temporar\' Works, Materials and Goods
Public Sector Simula rd Conditions of Comract for Construction Works 2005
The Contractor is not to bring onto the Site any hired Construction
Equipment unless there is in the agreement (for the hire but not hirepurchase of such Construction Equipment) a provision that the owner of
Lhe same will, on request in writing made by the Employer within seven
days after the date on which the tennination has become effective and on
the Employer undertaking to pay all hire charges. hire the same to the
Employer on the same terms in all respects as was hired by the
Contractor, except that the Employer shall be entitled to pennit the use of
the same by any other contractor employed by the Employer for the
purpose of executing and completing the Works and remedying any
Defects therein under the terms of Clause 31 (Termination by the
Employer). 21
Finally, the Contractor must incorporate in all his sub-contracts for the
execution of any part of the Works the provisions of Clause 24 in relation
to the Construction Equipment, Temporary Works, materials or goods
brought onto the Site by reference or otherwise. 22
By Clause 24.3, the Contractor agrees that the Employer is not liable
for damages of the same although they are vested in Lhe Employer.
Accordingly, the Contractor would be liable for such damage. This may
also be inferred from Clause 25.1 (I) where the Contractor is responsible
for the care of the same.

Although all Construction Equipment, Temporary Works. Plant,
materials and goods owned by the Contractor or by any company in
which the Contractor has a controlling interest shall be deemed to be the
property of the Employer when brought onto the Site, the Contractor
retains the right to the sole use of the same for the purpose of the Works. 23
However, the Contractor has, under Clause 24.3, agreed not to make the
Employer liable at any time for loss or damage to any of the same and
also not to make him Liable for any loss, expe nse, costs, damages, liability
or claim arising from the presence or use of the same thereby Limiting his
rights against the Employer.24
Where the Contractor has obtained the SO's consent to remove any
Construction Equipment, Temporary Works, Plant, materials and goods,
the ownership of the same is deemed Lo re-vest in the Contractor upon the
removal of the same. Similarly, the ownership of the remai nder of such
Construction equipment, Temporary Works and materials is deemed to
21
22
23
24
re-vest in the Contractor upon the completion of the Works and the
making good of all Defects.25
Employer
Although any Construction Equipment, Temporary Works, Plant,
materials and goods which are brought onto the Site are deemed to be
vested in the Employer pursuant to C lause 24.2, he is not at any time
liable for loss or damage of the same. Neither is the Employer liable for
any loss, expense, costs, damages, liability or claim arising from the
presence or use of the same. 26
However. if the Employer decides, pursuant to Clause 24.4, to take
over the hire contract from the Contractor, the Employer would be liable
to pay all hire charges as prescribed.
When any Construction Equipment, Temporary Works. Plant, materials
and goods owned by the Contractor or by any company in which the
Contractor has a controlling interest is brought onto the Site, it shall be
deemed to be the property of the Employer. This right is not absolute as
the Contractor may remove the same from the Site if the SO gives his
consent which although is not expressly provided ought not to be
unreasonably withheld. 27 Further, the property in the remainder of the
same revests in the Contractor upon the completion of the Works and the
making good of all Defects. 28 The Employer's right as owner of the same
is also subject to the Contractor's right to the sole use of the same for the
purpose of the Works. 29 Finally, the Employer has the right to request the
owner of the Construction Equipment, which was hired to the Contractor,
to hire the same to him as prescribed .3
Role of the employer
If the hire of Construction Equipment contract complies with the
requirements of Clause 24.4, the Employer may within seven days after
the date on which termination has become effective, where the
tennination of the Contract is brought about by the Employer under
Clause 3 1, request the owner of the hired Construction Equipment in
15
26
27
28
See cl 24.5.
See cl 24.3.
See cl 24.1.
See cl 24.S.
29 See cl 24.2.
30 See cl 24.4.
See cl 24.4.
See cl 24 .6.
See cl 24.2.
Sec cl 24.3
164
165
Public Sector Standard Co11ditions of Contract for Co11stmctio11 Works 2005
writing lo hire the same to the Employer if there is also an undertaking

given by the Employer to the owner to pay all hire charges from the date
of the request. 31
Clause 25 - General Responsibilities
Role of the SO
The SO must monitor to see that the Contractor does not remove the
Construction Equipment, Temporary Works, materials or goods brought
onto the Site unless it is for the prescribed exception. However, the SO
must consider whether to give written consenl to the Contractor if the
Contractor so requests to remove any Construction Equipmenl,
Temporary Works, Plant, materials and goods from the Site. 32
Although it is not expressly stated, it is submitted that the SO ought to
have the power to request the Contractor to show that the hire of
Construction equipment contract and any of the Contractor's subcontracts for the execution of any part of the Works contain the terms
prescribed by Clause 24.4 and 24.6 respectively.
Cross References

(Exclusive Use for the Works),33 24.2 (Vesting)34 and 31 (Termination by
the Employer). 35
Generally
The ownership of and responsibility for chattels and real property usuaUy
come together. In a building contract. any building materials and
equipment brought onto the site by a contraclor remains his property and
he is responsible for them unless otherwise provided until the building
materials are incorporated into the works where under the maxim
quicquid plantatur solo, solo credit, that is, what is annexed to the land
becomes part of the land, the incorporated materials become the property
of the owner of the land and therefore he is responsible for the completed
works.
Where the building contracl provides for the chauels lo be the property
of the employer. the building contract usually provides for the contractor
lo be responsible for them and additionally, the contraclor is also made
responsible for the works which are usually the responsibility of the
employer as he is normally the owner of the land, because the contractor
has possession of the site and is in the best position to be responsible for
the chattels and the works.
This clause has two sub-clauses. Although lhe sub-head is entitled 'Care
of the Works', 1 the scope includes care of any Plant, materials or goods as
well as Construction Equipment, 2 Temporary Works, 3 structures, other
works, worker's quarters and any other things whatsoever nature required
by the Contractor for the purpose of the Contract.
As the Contractor5 has possession of the Site,6 he is in the best position
to be responsible for any completed Works and the prescribed things on
I
31
32
33
34
35
2
3
See cl 24.4.
See cl 24.1.
See cl 24.5.
See cl 24.5.
4
5
6
166

For definition of Construction Equipment, see cl I. I (g).
For definition ofTemporn.ry Works, see cl I l(ae).
For definition of Contract, see cl l.l (d).
For definition of Site. see cl I. I (z).
167
Public Secror Sumdard Condirions of Comracr far Consrruc1io11 Works 2005
Clause 25 - General Responsibiliries
the Site. This clause provides expressly for the Contractor to be

responsible for the care of the works as well as the prescribed things from
the date of commencement of the Works until 14 days after the Date of
Substantial Completion. 7 The provision for the date of commencement is
found in Clause 12. l and the definition of the Date of Substantial
Completion is found in Clause I. I (i). Further. the Contractor is
responsible for the care of any outstanding works during the Defects
Liability Period8 as well as the making good of any damage, Joss or injury
suffered by the Works or parts of the Works unless it is caused by the
excepted risks.9 This clause has to be read with Clause 13. I which
provides for a situation where there is a suspension of Works.
The first sub-clause, 25.1, essentially imposes on the Contractor a twofold obligation subject to the provisions of the next sub-clause, 25.2.
First, the Contractor is made responsible for the care of the works as well
as things which have been brought onto the site by the Contractor
including plant, equipment and materials to name a few. Presumably,
pursuant to this, the Contractor is required to take steps to ensure that
whatever part of the Works is completed must be protected from damage,
loss or injury. Second, where there is damage, loss or injury to the Works,
regardless of whether the same arose from the Contractor failing to
successfully protect the Works or whether the same arose from the
'excepted risks', the Contractor is made responsible for the making good
of the completed works that are damaged. However, by paragraph (3)(b)
of Clause 25.l, the Contractor is entitled to Loss and Expense 10 as
prescribed.
This clause may be read in conjunction with Clauses 4. I and 18.
Whereas the scope of the Contractor's responsibility under Clause 4.1
(Contractor's General Responsibilities) covers the execution and
completion of the Works together with the remedy of defects in the
Works and Clause 18 deals with the completion of the outstanding works
and the amendment. reconstruction and remedying of defects, shrinkages
and such other faults during the Defects Liability Period, 11 this clause
covers the care of the Works during the period from the commencement
of the Works until 14 days after the Date of Substantial Completion and
thereafter to take care of any outstanding works until they are completed
during the Defects Liability Period.
This clause may also be read with Clauses 4.1 and 24.2. Whereas the
Contractor is required under Clause 4.1 to provide Plant, Construction
Equipment, materials, goods and all other things, whether of a temporary
or permanent nature required for the Works, and whereas the Contractor
is generally required under Clause 24.2 to operate and maintain all

C~nstruction Eq.uipmenl, Temporary Works. Plant, materials and goods,
this clause requires the Contractor to be responsible for the care of the
Works during the prescribed duration.
In the s~con? sub-cl.ause, 25.2. the 'excepted risks' are defined. They
represent situations which are not caused by the Contractor and for which
they are not responsible.
7
8
9
IO
11
For definition of Dale of Subs1an1ial Completion, see cl l . IG).

See cl 25.1 (2).
See cl 25. 1(3). For definition of 'excepted mks, see cl 25.2
For definition of Lo~s and Expeni.e, see cl I. I(q).
For definition of Defects Liability Period. see cl I . I (kl.
168
Contractor
The Contractor is obliged to take full responsibility for the care of the
whole Works or of any phase or part of the Works which has not been
substantially completed from the date of commencement of the Works
until 14 days after the Date of Substantial Completion or the latest date if
more than one. 12 Jn addition, the Contractor is obliged to take full
responsibility for any Plant, 13 materials or goods intended for or
connected wi.Lh the Works and all Construction Equipment, Temporary
~orks, matenals, goods, structures, other works, workers' quarters on the
Site and any other things of whatsoever nature required by the Contractor
for the purposes .o~ ~e Contract. 14 Further, the Contractor is obi iged to
Lake full respons1b1hty for the care of any outstanding work which he
sh~ unde.rtake or be obl~ged to complete during the Defects Liability
Penod untll such outstandmg work has been completed to the satisfaction
~f the Superintending Officer (S0). 1s Accordingly, the Contractor is
!table for the cost of taking care of the completed works so as to avoid
any damage, loss or injury to it.
The Contractor is also responsible for the making good with all
reasonable expedition, any damage, loss or injury to the Works or parts of
the Works from any cause whatsoever except those caused by the
'excepted risks' at his own cost to the satisfaction of the S0. 16
12
13
14
IS
16
See ~125.1(1). Although cl 2S's heading b General Responsibility, it specifically

provides for !he Care of !he Works. II should not be confused wilh cl 4.1
(Conuac1or's General Respons1bili1ies).
For definition of Plant. see cl l.l(v).
See cl 25.l(l).
See cl 25.1(2). For definition of Superintending Officer, see cl I. !(ab).
Sec cl 25.1 ~3?(a). See also cl 26.3 ((Contractor lo Rectify Damage) which provides
Iha! where injury or damage of any kind arises to any property out of or in the coUTSe
of or by reason of !he carrymg ou1 of !he Works, the SO shall be entitled to instruct
!he Conuactor 1orectify any such injury or damage at any time before !he issue of !he
~inal <:ompletion _Certificate and !he Conuac1or shall upon receipt of such an
mstructJOn fonhw1th comply wilh !he same) and cl 28.2{1) ((Application of
lnsuranc~ Moneys) where ii is provided !hat upon the occurrence of any damage.
loss or .lilJUry 10 !he Works or unfixed Plant, materials or goods prior to !he
compleuon from any cause whatsoever !he Contractor shall, subject lo cl 25. l (3).
proceed immediately lo rectify and make good Lhe same free of charge).
169
Public Sector Standard Condit tons of Contract for Construction Works 2005
Clause 25 - General Respomibilities
Additionally, the Contractor must proceed with the construction and

completion of the Works in all respects in accordance with the Contract
and the SO's instructions notwithstanding that there is such damage, loss
or injury caused to the Works or parts of the Works. 17
Where the said damage, Joss or injury is caused by the 'excepted
risks', the Contractor is obliged to make good only ifthe SO instructs the
Contractor in writing to rectify and make good the same and be paid Loss
and Expense as prescribed. 18 The excepted risks are:
S0. 19 Where the event of the said damage, loss or injury is attributable to
both an excepted ri sk and a risk for which the Contractor is responsible,
the Contractor is e ntitled to a fair apportionment of the costs that is
certified by the S0.211
insofar as they occur in Singapore and directly affect the execution

of the Works:
Where the Contractor is instructed by the SO to rectify and make good

the damage, Joss or injury as prescribed which is caused by the excepted
risks, the Employer is obliged to pay the Contractor the Loss and Expense
which is certified by the SOY Where the event of the said damage, loss
or injury is attributable to both an excepted risk and a risk for which the
Contractor is responsible. the Employer is only obliged to pay the
Contractor a fair apportionment of the costs that is certified by the S0.22
The extent of liability of the Employer under this clause would be
limited to any damage, Joss or injury brought about by the 'excepted
risks' and if the SO instructs the Contractor to rectify and make good the
same, then the Employer's exposure to liability is Jirnjted to any Loss and
Expense incurred by the Contractor in complying with the instructions of
the SO. Further, under Clause 25.1(3)(c) where the damage, loss and
injury is caused in part by the Contractor with the other part caused by an
'excepted ri sk', then the Employer's liability is limited to the amount
certified for payment to the Contractor by the SO as a fair apportionment
of the costs for making good.
(I )
(a)
(b)
(c)
(d)
(e)
(2)
(3)
war and hostilities, whether war be declared or not, invasion,

act of foreign enemies;
rebellion, revolution, insurrection or mjJitary or usurped power
or civil war;
riot, commotion or disorder, unless solely restricted to
employees of the Contractor or his subcontractors and arising
from the conduct of the Works;
ionising radiations or contamination by radio activity from any
nuclear fuel, or from any nuclear waste from the combustion
of nuclear fuel or radioactive, toxic, explosive or other
hazardous properties of any explosive, nuclear assembly or
nuclear compound; and
pressure waves caused by aircraft or other devices travelling at
sonic or supersonic speeds;
the use or occupation of the Employer of any part of the Works,

except as may be expressly provided in the Contract; and
the design of the Works, other than any part of the design provided
by the Contractor or for which the Contractor is responsible under
the Contract.
Accordingly, the Contractor's liability for the cost of making good is

limited to what falls outside the 'excepted risks'. Should the Contractor
fail to comply with the SO's instruction issued pursuant to
Clause 25.1(3)(b), the Contractor is liable for the amount of any loss or
damage suffered or incurred by the Employer as provided for under
Clause 2.6 (a) and (b).
Employer
Role of the SO
There is reference to the following:
(I)
(2)
(3)
the SO's responsibility to certify the Date of Substantial Completion

under Clause 17 ;B
that the outstanding works must be completed to the satisfaction of
the SO during the Defects Liability Penod; 24 and
that the construction and completion of the Works must be in all
respects in accordance with the Contract and the SO's instructions. 25

Where the Contractor is instructed by the SO to rectify and make good
the damage, loss or injury as prescribed which is caused by the excepted
risks, the Contractor is entitled to any Loss and Expense certified by the
17
18
See cl 25. 1(3)(a).

See cl 25 .1 (3)(b).
170
19 See cl 25.1 {3)(b).

20 See cl 25.1 (3)(c).
21 Seecl25. 1(3)(b).
22 See cl 25.1 (3)(c).
23 See cl 25.1(1 ).
24 See cl 25. l (2).
25 See cl 25. 1(3)(a).
171
Where the Contractor is required to make good the damage, loss or injury
caused whatsoever to the Works or parts of the Works as prescribed, the
SO must be satisfied with the said making good. 26
Where the SO wishes the Contractor to rectify and make good the said
damage. loss or injury that is caused by the 'excepted risks', the SO must
issue a written instruction to the Contractor requiring him to do so. If the
Contractor complies with the said instruction, the SO shall certify any
Loss and Expense incurred by the Contractor if he has complied with the
requirements in claiming the said Loss and Expense. 27 Where the event of
the said damage, loss or injury is attributable to both an excepted risk and
a risk for which the Contractor is responsible, the SO must make a fair
apportionment of the costs so that the Employer is not obliged to pay
costs for which the Contractor was responsible under the Contract. 28
Cross References
The clauses expressly referred to in this clause are Clauses 17

(Substantial Completion), 29 23 (Procedure for Claims), 30 25.1(1) (Care of
the Works),31 25.1(2) (Care of the Works),32 25.2 (Excepted Risks)33 and
32 (Progress Payments and Final Account).34
In Clause 25.1(1), mention is made of the commencement of the
Works which is provided for in Clause 12. I and Date of Substantial
Completion as provided by Clause 17. In Clause 25. I (2), mention is
made of the Defects Liability Period which is provided for in
Clause L, L(k) which refers to the Appendix and also provided for in
Clause 18. In Clause 25. I (3)(b), mention is made of the SO's written
instruction where his power comes from the provision in Clause 2.5 and
mention is also made of Loss and Expense which the Contractor is
entitled as provided by Clauses 22 and 23.
Clause 26 - Indemnity Provisions
Generally
In addition to the liabilities which would be borne by the contractor in

breach of any of the obligations imposed on him by the contract, the
parties may agree that the contractor indemnify the employer against any
prescribed loss, injury or damage. According to Hudson's Building and
Engineering Contracts, 1
To the extent, however, that an indemnity clause may require the indemnitor
to indemnify in respect of matters in the indemnitee's area of contractual
responsibility, including the indemnitee's or his agents' negligence, it can be
seen that such a clause operates even more powerfully than a simple
exemption clause, since it requires positive compensation, and not a mere
negative protection against suil, to be conferred on the indemnitee in the event
of his own or his servants' or agents' default or breach of contract. As such,
therefore, indemnity clauses of this kind will attract the fu ll rigour of the strict
construction accorded to simple exemption clauses. The most important
consequence of this may be described as the Alderslade principle, namely that
an indemnity clause will normally be construed as applying only to the areas
of either neutral or indemnitor responsibility, so that if general words of
indemnity are used to cover a particular situation, they will not be construed
so as to cover loss caused by the negligence or other default of the indemnitee
or his agents, unless there is no other basis than negligence (as, fo r example,
strict liability or some special liability in contract) upon which the indemnitee
could possibly become liable in the circumstances envisaged by the clause.2
26
27
28
29
30
31
32
33
34
This clause has three sub-clauses. This clause provides contractually, the
Contractor's obligation to indemnify the Employer in the specified
situations to the specified extent. Relating to this clause are Clauses 4.3
(a contractual obligation imposed on the Contractor to indemnify the
Employer in respect of subcontractors) and 4.7 (another contractually
See cl 25. 1(3)(a).

See cl 25.1(3)(b).
See cl 25. 1(3)(c).
See cl 25. I ( I).
See cl 25. I (3)(b).
See cl 25.1 (3)(c).
See cl 25.1(3)(c).
See cl 25.1(3)(a).
See cl 25. I (3)(b).
172
Ian Duncan Wallace QC, Hudson 's Building and Engineering Contracts (I I th ed.
1995, Sweet and Maxwell) vol I. p 126, para 1-235.
Afderslade v Hendon Laundry [1945] KB 189.
173
Public Sector Standard Conditions of Contract for Co11stroctio11 Works 2005
imposed obligation on the part of the Contractor to indemnify the

Employer in respect of patents, trade marks copyrights .and other
protected rights of any Construction Equipment, Plant, matenals, goods
or design as specified).
Two sub-clauses, 26.1 and 26.2, allocate the specified matters relating
to injury to persons, death and damage to property as a liability to be
borne by the Contractor. 3 In addition, the two sub-clauses impose on the
Contractor the obligation to indemnify the Employer the specified loss.
expense, costs, damages, liability or claim in respect personal injury,
death and damage to property that arises out of or in the course of or by
reason of the carrying out of the Works. 5
However, by sub-clause 26.1, the extent of the Contractor's allocated
liability and his imposed obligation to indemnify is limited respectively
by paragraphs J and 2 found in the sub-clause. Thus, if what is prescribed
as covered by the Contractors as his liability or indemnity can be shown
to be due solely to any negligent or wilful act of the Employer or any
person for whom the Employer is responsible, then the Contractor is not
made liable nor obliged to indemnify the Employer by this contractual
provision. More particularly, the extent of indemnity imposed on the
Contractor does not cover the situation where the prescribed coverage of
the indemnity arises from an accident, illness or injury resulting solely
from an act or default of the Employer or of any person for whom the
Employer is responsible.
Similarly, by sub-clause 26.2, the extent of the Contractor's allocated
liability and his imposed obligation to indemnify is limited to when the
Contractor is not able to prove to the satisfaction of the Superintending
Officer (S0)6 that it was not due to any negligence, omission, breach of
contract or default of the Contractor or of any person for whom the
Contractor is responsible including the Contractor's servants or agents or
any subcontractors and their servants or agents.
The other sub-clause, 26.3, imposes on the Contractor an obligation to
rectify the injury or damage which the Contractor is obliged to indemnify
when instructed by the SO with a mechanism to determine whether the
Contractor should be paid for the cost of rectification.
Contractor
The Contractor is not only responsible for the carrying out of the Works
which includes the execution and completion of the Works under
Clause 4. 1 (Contractor's General Responsibilities) but also the specified
3
4
5
6
For definition of Contractor, see cl l. I (f).

For definition of Works, see cl I . I (ag).
For definition of Superintending Officer, see cl I . l(ab).
174
Clause 26
lnde11111iry Prol'isions
consequences arising from his carrying out of the Works. The Contractor
is liable for and must inde mnify the Employer against any loss, expense,
costs, damages, Liability or claim whatsoever in respect of personal injury
to or death of any person whomsoever due to himself or a third party I.hat
arises out of or in the course of or by reason of the carrying out of I.he
Works.7 The said indemnity covers any damages or compensation
payable al common law or under any statute in respect of or in
consequence of any accident, illness or injury to any workman or other
person in the employment of the Contractor or any subcontractor. The
said accident, illness or injury must be caused by the Contractor, any of
the subcontractors or a third party but not an accident, illness or injury
resulting solely from any act or default of the Employer, or any person for
whom the Employer is responsible.8
The Contractor is liable for and must also indemnify the Employer
against any loss, expense, costs. damages. liability or claim due to injury
or damage of any kind of property. real or personal. including any
property of the Employer other than the Works 9 that arises out of or in the
course of or by reason of the carrying out of the Works and are due to the
Employer or a third party. For the Contractor, he is excused from the
burden of the indemnity if he can prove to the satisfaction of the SO that
it was not due to any negligence, omission. breach of contract or default
of I.he Contractor or of any person for whom the Contractor is responsible
including the Contractor's servants or agents or any subcontractors and
their servants or agents. 10
However, the Contractor is obliged to forthwith rectify any injury or
damage to any property 11 as prescribed upon receipt of the SO's
instruction to do so as long as the said instruction is issued before the
Final Completion Certificate. This obligation is without prejudice to the
Contractor's obligation to indemnify I.he Employer under Clause 26.2. 12
Should the Contractor fail to comply with the SO's instructions. this
Clause does not pro.vide for a remedy. However, a possible answer may
be found in Clause 2.7 where a failure to comply with the SO's
7
See cl 26. I ( I ).
8
See cl 26. I (2).
9 The responsibility for the Works is found m cl 15. 1(3)(a) (Care of the Works).
I 0 See cl 26.2.
11 ln cl 26.3, there is no disiinction between propert) which is the Works and property
other than the Works.
12 See cl 26.3. See also cl 25.1(3)(a) (Care of the Works) where it is provided that '[i]n
the event of any damage. loss or injury 10 the Works or parts of the Works from any
cause whatsoever (except the 'excepted risks' as defined in cl 25.2), the Contractor
shall, at his own cost, make good with all reasonable expedition such damage. loss or
injury 10 the satisfaction of the SO .. .'; and cl 28.2 (Application of Insurance
Moneys) where it is provided in sub-clause (I) that. ' (u]pon the occurrence of any
damage, loss or injury to the Works ... prior to completion from an y cause
wha1soever the Contractor shall (subject to cl 25.1(3)) proceed munediately lo
rectify and make good the ~ame free of charge ... '.
175
Public Sector Standard Co11ditio11s of Co111rac1 for Constructio11 Works 2005
Clause 26 - Indemnity Provisions
instruction at once, which is the equivale nt of the forthwith compliance

requirement in this Clause, would expose the Contractor to the liability of
bearing the cost arranging for the work being done by a person other lhan
the Contractor.
The Contractor is entitled to be paid for any rectification works carried

out pursuant to the SO's instruction issued under Clause 26.3 if he
establishes that he would not be Liable for any injury or damage of any
kind arising to any property out of or in the course of or by reason of the
carrying out of the Works by virtue of Clause 26.2 or otherwise. The SO's
instruction is deemed to have been a variation issued pursuant to
Clause 19.1. The Contractor is entitled to payment in respect of such
variation notwithstanding the issue of the Final Account Certificate. 13
workman or other person in the employment of the Contractor or any

subcontractor caused by the Contractor, an} of the subcontractors or a
third party but not an accident, illness or injury resu lting solely from any
act or default of the Employer, or of any person for whom the Employer
is responsible. 15
Further, where the Employer incurs any loss, expense, costs, damages,
liability or claim due to injury or damage of any kind of property, real or
personal, including any property of the Employer other than the Works
that arises out of or in the course of or by reason of the carrying out of the
Works (for which the Contractor cannot prove to the satisfaction of the
SO that il was not due lo any negligence, omission, breach of contract or
default of the Contractor or of any person for whom the Contractor is
responsible including the Contractor's servants or agents or any
subcontractors and their servants or agents) the Employer is entitled to be
indemnified by the Contractor. 16
Employer
Superintendi ng Officer
Role of the SO
It appears from Clause 26.1 that the Employer himself will be liable
under Clause 26. I ( I) for any loss, expense, costs, damages, liability or
claim whatsoever in respect of personal injury, or death if it is due solely
to any negligent or wilful act of the Employer or of any person for whom
the Employer is responsible; a nd under Clause 26. 1(2) for any damages
or compensation payable at common law or under any statute in respect
of or in consequence of any accident, illness or injury to any workman or
other person in the employment of the Contractor or any subcontractor
which resulted from an act or default of the Employer or of any person
for whom the Employer is responsible.
Where there is injury or damage of any kind suffered by any property real
or personal including any property of the Employer other than the Works,
the SO has to decide whether the said injury or damage of any kind
caused Lo any property real or personal. incl uding any property o f the
Employer other than the Works, which arose o ut of or in the course of or
by reason of the carrying out of the Works was not due to any negligence,
omission, breach of contract or default of the Contractor or of any person
for whom the Contractor is responsible including the Contractor's
servants or agents or any subcontractors and their servants or agenls. 17
Accordingly, the SO is empowered to instruct the Contractor to rectify
any injury or damage of any kind arising to any property out of or in the
course of or by reason of the carrying out of the Works at any time before
the issue of the Final Completion Certificate. s
Employer

Where the Employer incurs any loss, expense, costs, damages, liabi lity or
claim whatsoever in respect of personal injury to or death of any person
whomsoever due to himself or a third party that arises out of or in the
course of or by reason of the carrying out of the Works, for which it
cannot be shown to be due to any negligent or wilful act of the Employer
or of any person for whom the Employer is responsible, he is entitled to
be indemnified by the Contractor. 14 The said indemnity covers any
damages or compensation payable at common law or under any statute in
respect of or in consequence of any accident, illness or injury lo any
13
14
15
16
17
18
See cl 26.3.
See cl 26. 1(1).
176
See cl 26. l (2).

See cl 26.2.
See cl 26.2.
See cl 26.3.
177
Public Sector Standard Conditions of Com ract for Construction Works 2005
Cross References

(Contractor's Ge neral Responsibilities), 19 19. l (Variations), 20 26. 1 (Injury
to Pe rsons)21 and 26.2 (Damage to Propcrty).22
The following references are also relevant to this clause: in
C lause 26.3, mention is made of the issue of the Final Completion
Certificate, this is provided for in Clause 33. I; mention is also made of
the issue of the Final Account Certificate which is provided for in
C lause 32.5(6 ); when the SO issues his written instruction, his power
comes fro m the provision in Clause 2.5.
Should the Contractor fai l to indemnify the Employer as provided in
this clause, the Employer's recourse may be fo und in Clause 4.5 which
e mpowers him to utilise the Security Deposit in the eve nt of a breach by
the Contractor or to make a call on the performance guarantee if that is
given in lieu of the security deposit.
Relating to thi s clause are provisions for contractual indemnities to be
given by the Contractor to the Employer in respect of subcontractors
under C lause 4.3 and specified intellectual property rights as specified in
Clause 4.7.
Clause 27 - Insurance for Personal Injury,

Workmen's Compensation and Property Damage
Generally
In Chitty on Contracts, it is said that,'

A contract of insurance is one whereby one party (the insurer) undertakes for
a consideration Lo pay mone) or provide a corresponding bene fi t to or for the
benefi t of the other party (the assured) upon the happening of an event which
is uncertain, either as to whether it has or will occur at all , or as to the time of
its occurrence, where the object of the assured is to provide against loss or to
compensate for prejudice caused by the event, or for his old age (where the
event is the reaching of a certam age by the assured) or (where the event is the
death of the assured) for the benefit of others upon death.
According to Hudson's Building and Engineering Contracts,2

The only commercial reason or practical reason for an owner's readiness to
pay fo r such insurance is therefore. to safeguard himsel f against the heavy
losses the owner would be li kely to incur if the contractor's financial
resources were to prove inadequate to meet his contractual liabilities in the
event of a major loss arising. with the conseque ntial delays and often serious
additional cost to the owner if a new contractor had to be appointed fo r the
project in mid-stream.
This clause has three sub-clauses. It sets out the three sets of insurances3
which the Contractor must take ou t and maintain. It also provides that
the Employer~ may hi mself take out or maintain such ins urances if the
Contractor fails to do so.6
Sec cl
See cl
21 See cl
22 See cl
I9
20
26.2.
26.3.
26. I (2).
26.3.
5
6
178
'Specific Contracts' (27th ed. 1994. Sweet & \1axwell) vol II. p 885, para 39-001.
Ian Duncan Wallace QC. H11dw11 's Bui/din.~ and Engmeering Co111racts (I I th ed.
1995. Sweet & Maxwell) vol 2, p 1422, para 15-002.
See sub-ell 27. I (I) and 27 .2(2).
For definition of Contractor. see cl I. I(f).
See cl 27 .3.
179
Clause 27 - /11s11ra11ce for Personal /11j11r;, Workme11 's Compens(ltion and

Property Damage
Public Sector Standard Co11ditio11s of Co111rac1 for Co11s1r11ctio11 Worh 2005
Contractor
In re~pect of policy that is taken out where the Employer's interests are
noted as 'Principal', he will be so entitled under the policy. Where the
Employer is named as an 'Additional Insured'. he will correspondingly
be so entitled. In the case where the policy has the joint names of the
Employer and the Contractor, they would be so entitled under the policy.
The Employer may himself insure against any risk which the
Contractor or any subcontractor has defaulted in taking out or
maintaining the insurance policies as stipulated by Clause 27.1 and 27.2.
He may recover the premiums from the Contractor without prejudice to
any other rights and remedies that are available. 12
The three sets of insurances which the Contractor is obliged to take out
and maintain are set out below. First, insurances to cover the liability of
the Contractor or any subcontractor in respect of personal injuries or
death or the sub-contract works including any liability of the Contractor
under the Workmen's Compensation Act.7 Second, insurances which may
be specifically required by the Contract8 in respect of injury or damage to
property real or personal other than the Works. 9 Third, insurances for
such amounts of indemnity as may be specified in the Specifications 10 or
other Contract documents in respect of the prescribed loss, expense,
costs, damages, liability or claim which the Employer may incur or
sustain due to injury or damage of any kind to property real or personal
including property of the Employer but not the Works caused by collapse,
subsidence, vibration, weakening or removal of support or lowering of
ground water. 11 The need for these covers all arises out of or in the course
of or by reason of the carrying out of the Works.
Accordingly, should any policy be disclaimed by the insurer, the
Contractor would be liable in respect of the loss and damage incurred that
arose from a risk which responsibility rests with the Contractor and
which would have been covered if there was no disclaimer.
[f the Contractor fails to insure the Works or to deposit the insurance
policies or receipts for premiums as required by Clause 27, the
Contractor is exposed to the liabilities of a tennination for default by the
Employer pursuant to Clause 31.1(2)(d). Further the Contractor is liable
to the Employer in respect of any other right and remedies available to the
Employer arising from the situation leading to the termination.
Employer
Employer would be liable in respect of the loss and damage incurred that
arose from a risk which responsibility rests with the Employer and which
would have been covered if there was no disclaimer.
7
8
Seecl27.l(a).
For definition of Contract, see cl J.l(d).
9
See cl 27. 1(b). For definition of Works, see cl I. I (ag).
10 For definition of Specifications, see cl I. I(aa).
II Seecl27.2(1).
180
Role of the SO
The Superintending Officer (S0) 13 has to give his approval of the
Contractor's choice of insurers before the Contractor is to take out
insurance policies with them under Clause 27 .14 Further, the SO must
ensure that the Contractor deposits with the SO a copy of the policy or
policies of insurance before the commencement of the work. 15 The SO
must also ensure that no later than 14 days after the date of the said
deposit, the Contractor deposits with the SO the receipts in respect of the
premiums paid under the said policy or policies. 16
In the first set of insurances which is in respect of injury and death, it is
implied that the SO must check to ensure that: (I) the insurances in
respect of personal injury and death provide for the Employer's interest to
be noted as ' Principal' for Workmen's Compensation/Employer's
Liability; (2) they cover the liability of the Contractor and any
subcontractor as required; and (3) they comply with any limitations
permitted by the Specifications or other Contract documents. 17 In
checking whether the said insurances comply with the requirements of
the PSSCOC, the SO must also be aware of any modifications to the
Workmen's Compensation Act subsequent to the taking out of the
insurance which obliges the Contractor to increase the coverage of the
insurance in respect of any additional requirements imposed by the said
modifications to the Act. 18
In the second set of insurances which i~ in respect of injury or damage
to property real or personal other than the Works, it is implied that (1) the
12
13
14
15
16
17
18
See cl 27.3
For definition of SO, see cl J.l(ab).
See sub-ell 27. 1(2) and 27.2(2).
See sub-ell 27.1(2) and 27.2(2).
See sub-ell 27. I (2) and 27 .2(2).
See cl 27.l( l)(a).
Seecl27.l(l)(a).
181
Public Sec10r Standard Conditions of Contract for Construction Works 2005
SO must check to ensure that the insurances provide for the Employer's
interests to be noted as an 'Additional Insured ' with a 'cross liability '
provision for Third Party Liability; and (2) ~e~ c_omply with w~at is
specifically required by the Contract and the linutat1ons as set out m the
Appendix.19
In the third set of insurances which cover the specified amounts of
indemnity, it is implied that the SO must check to ensure that (1) the
insurances are maintained in the joint names of the Employer and the
Contractor; (2) they comply with the amounts of indemnity specified in
the Specifications or other Contract documents; 20 and (3) they do not
cover the following injury or damage: (a) injury or damage caused by any
breach of contract, negligence, omission or default of the Contractor, his
servants or aaent or of any sub-contractor, his servants or agents or any
other person ;esponsible for the provisions of any Plant, materials, goods
or work for the Works;21 (b) injury or damage attributable to any error or
omission in the design of the Works other than work for the design of
which the Contractor is responsible under the Contract;22 and (c) injury
and damage from any of the 'excepted risks ' as defined in Clause 25.2. 23
Cross References

(Excepted Risks),24 26 (Indemnity Provisions),25 27.l (The Policies),26
27.l(l) (The Policies),27 27.2 (Damage to Property when Contractor Not
Negligent) 28 and 27.2(1) (Damage to Property when Contractor Not
Negligent). 29 Clause 27 is mentioned in Clause 3 l.1(2)(d) which provides
for the Termination for Default by the Employer. Further, moneys stated
to be recoverable by the Employer from the Contractor in this Clause may
be recovered as provided by Clause 35.
Clause 28 - Insurance of the Works
Generally
The ultimate concern of the employer is co have the completed works

ready for its intended use. Although the contractor is usually made
responsible for the making good of any damage, loss or injury suffered by
the works as prescribed, the provision of an insurance cover in respect of
the completed works ensures that the contractor is reimbursed by any
insurance moneys paid under the insurance policy and the risk to be
borne, in respect of the cost of making good. is transferred to the insurers
to avoid the possibility that the contractor may become insolvent as a
result.
For this insurance arrangement to be effective, the risks to be covered
by insurance must be wide enough the insured amount must be adequate
enough and the premiums must be not too expensive in the light of the
contract sum of the works. The concern of the employer is that the
contractor must not fail to take out and maintain the required insurance
policy. Accordingly. the employer through his agent, the SO, must check
and verify that the insurance policy actually covers the required risks and
is for the required insured sum and that a valid policy is maintained for
the required period of time under the joint names of the empl?yer ~d the
contractor all in accordance with what has been prescnbed rn the
contract.
This clause has two sub-clauses. In this clause, the Contractor' must take
out and maintain insurance in respect of. inter alia, the Permanent
Works,2 any Temporary Works3 and all unfixed Plant,4 materials and
goods.5 It also provides that the Employer6 may himself take out or
19 See cl 27. J( l )(b).

20 See cl 27.2( I).
21 See cl 27.2( l)(a).
22 See cl 27.2(1)(b).
23 See cl 27.2(1)(c).
24 See cl 27.2(1)(c).
25 See cl 27. 1.
26 See cl 27 .3.
27 See cl 27.1 (2).
28 See cl 27.3.
29 See cl 27.2(2).
I
2
3
4
5
6
182
For definition of Contractor, see cl I. I (f}.

For definition of Permanent Works, see cl I. I (u).
For definition of Temporary Works, see cl l.l(ae).
For defirution of Plant, see cl l.l(v).
See cl 28. I (I).
183
Public Sector Standard Conditions of Com ract for Construction Works 2005
Clause 28 - Insurance of the Works
maintain such insurances if the Contractor fails to do so.7 Finally. it sets

out the Contractor's obligation to rectify any damage, loss or injury to the
Works and the procedure by which the Contractor gets paid with the
insurance moneys obtained pursuant to the said insurance. 8
arose from a risk which responsibility rests with the Contractor and
which would have been covered if there was no disclaimer.
In addition, the Contractor must immediately rectify a nd make good
free of charge. any damage, loss or injury to the Works or unfixed Plant,
materials or goods prior to completion that arose from any cause
whatsoever as prescribed. 16
If the Contractor fails to insure the Works or to deposit the insurance
policies or receipts for premiums as required by Clause 28, the
Contractor is exposed to the liabilities of a termination for default by the
Employer pursuant to C lause 31. l (2)(d). Further the Contractor is liable
to the Employer in respect of any other right and remedies available to the
Employer arising from the situation leading to the termination.
Contractor
Contractor's obligations and liabili ties

The Contractor is obliged to take out and maintain two sets of
insurances: 9
( 1)
(2)
one set is to insure against all damage, loss or injury from whatever
cause arising other than the 'excepted risks' as defi ned in
Clause 25.2 for which he is responsible under the terms of the
Contract, the Pem1anent Works, any Temporary Works and all
unfixed Plant, materials and goods delivered on or adjacent to the
Site for incorporation into the Works but excluding tools and
Construction Equipment 10 owned or hired by the Contractor or any
subcontrac tors and any structures or other works erected on or
adjacent to the Site 11 as prescribed. The insurance coverage should
only expire 14 days after the Date of Substantial Completion 12 or
the latest Date of Substantial Completion if more than one; and
the other set is to insure against damage, loss or injury arising from
a cause occurring prior to the commencement of the Defects
Liability Period 13 for the duration of the said Defects Liability
Period.
Alternatively, where the Contractor maintains a general policy of

insurance with insurers approved by the Superintending Officer (S0) 14
covering contracts as well as the Contract against the aforesaid insured
risks and in the terms as to payment of insurance moneys to the
Employer, then the maintenance by the Contractor of such policy shall, if
the Employer's interest is endorsed thereon, be a discharge of the
Contractor's obligations to insure in the joint names. 15
Contractor would be liable in respect of the loss and damage incurred that

The Contractor is entitled to the amount certified by the SO in respect of
any insurance moneys that is first paid to the Employer in the prescribed
proportion.17
Employer

ln the event that insurance moneys are due under the insurance policy, the
Employer is obliged to receive and keep the money until it is to be
released to the Contractor under the SO's interim certificate of payment. 18
Should the moneys received from the insurance policies be paid in the
first place to the Employer. the Employer holds the money and would be
liable to the Contractor for any amounts not yet paid until all the amounts
to be paid to the Contractor are certified to be paid by the SO.
Employer would be liable in respect of the loss and damage incurred t?at
arose from a risk which responsibility rests with the Employer and which
would have been covered if there was no disclaimer.
As the insurance policy is taken out by the Contractor pursuant to
C lause 28.1 ( I) in the joint names of the Employer and the Contractor, the
7
8
9
I0
11
12
13
14
15
Sec cl 28.1 (3).

See cl 28.2( I).
See cl 28.1( 1).
For definition of Construcuon Equipment, see cl I . I (g).
For definition of Site, see cl 1.1(z).
For definition of Date of Substantial Completion. see cl 1.1(1).
For definition of Defects Liability Penod. see cl 1. 1(k).
For definition of Superintending Officer, see cl I. I (ab).
See cl 28.1 (4).
184
16
See cl 28.2(1). See abo cl 25.1(3)(a) where tt 1s provided that '[i]n the event of any
damage, loss or injury to the Works or pans of the Works from any cause what.soever
(except the "'excepted risks" as defined in cl 25.2), the Contractor shal_l, _ath1s own
cost. make good with all reai.onable expedition such damage, lossor tnJUry to the
satisfaction of the
See cl 28.2( I).
See cl 28 2( I).
so.
17
18
185
P11blic Sector Standard Conditions of Contract for Co11structio11 Works 2005
C/a11se 28 - /11s11ra11ce of the Works
Employer would be entitled to the rights and remedies as an insured.

Further, by Clause 28. l (2), the insurance policy which is taken out by the
Conlractor would entitle the Employer to be paid any insurance mo neys
due under the policy in the first place.
The Employer may himself insure against any risk which the
Contrac tor has defaulted in taking out or maintaining the insurance as
stipulated by Clause 28. 1. He may recover any amount paid in respect of
premiums from the Contractor. 19
If the Contractor fails lo insure the Works or deposit the insurance
policies or receipts for premiums as required by this C lause, the
Employer is entitled to terminate the employment of the Contractor
pursuant to Clause 31.1 (2)(d).
ensure that such certificates must state expressly any exclusions or

limitations of liability or insurance excesses under the policy. 25
In either situation, the SO must certify in the interim certificates the
amount of insurance moneys in the possession of the Employer that is to
be released to the Comractor. 26 The SO must ensure that the amounts to
be released are calculated as from the date of receipt of the moneys in
proportion to the extent of the work of restoration, replacement or repair
previously carried out by the Contractor.27
Role of the SO
The role of the SO depends on whether the Contractor is required to take
o ut the prescribed insurance for the project concerned or whether the
endorsement of the Employer's interest in an existing general policy of
insurance of the Contractor is required.
In the first situation, the SO has to approve the terms of the insurance
which the Contractor is obtaining which must expressly provide for the
payment in the first place to the Employer of any insurance moneys due
under the insurance policy. 20 In particular, it is implied that the SO is
required to check 21 that the prescribed risks are insured in the joint names
of the Employer and the Contractor to the value of not less than the
Contract Sum 22 shown in the Letter of Acceptance. 23 Further, the SO must
ensure that the Contractor deposits with the SO a copy of the policy or
policies of insurance before the commencement of the work. The SO
must also ensure that no later than 14 days after the date of the said
deposit, the Contractor must also deposit with the SO the receipts in
respect of the premiums paid under the said policy or policies. 24
In the second situation, the SO must approve the insurers with which
the general policy of insurance is taken. He must ensure that the general
policy is endorsed with the Employer's interest and that it provides for the
payment of insurance moneys to the Employer. The SO is empowered to
demand that the Contractor produces as and when required, by the SO,
the current certificates of insurance from the insurers confirming the
existence and continuance of the relevant cover required. T he SO must
19
20
21
22
23
24
See cl 28.1(3).
See cl 28. I (2).
See cl 28.1(1).
For definition of Contract Sum. see cl l.l(e).
For definition of Letter of Acceptance. see cl I. I (p).
See cl 28. 1(2).
186
Cross References
The clauses expressly referred to in this C lause are Clauses 17
(Substantial Completion),28 25 (General Responsibilities),29 25. I (3) (Care
of the Works)' and 25.2 (Excepted Risks). 31 Clause 28 is mentioned in
Clause 31.1 (2)(d) which provides for the Termination for Default by the
Employer. Further, moneys stated to be recoverable by the Employer
from the Contractor in this Clause may be recovered as provided by
Clause 35 .
25
26
27
18
29
30
31
See cl 28.1 (4).

See cl 28.1( l ).
See cl 28.1(2).
See cl 28.1.
See cl 28.1.
See cl 28.2 .
See cl 28. 1.
187
Clause 29 - Damage to Property of Employer

or Government
Generally
Usually, the tenns of a conslruction contract would provide for the
parties' respective interesl although it is possible to have a contract where
lhe objective is to benefit a third party. Thus, where the contractor causes
any damage, loss or injury to property belonging to a third party, the
contractor is not contractually liable to the said third party in respect of
the same unless the contractor is liable under a statute like the Contracts
(Rights of Third Parties) Act. Any liability incurred on the part of the
contractor under the circumslances would be under the law of torts which
is more difficult to establish since the plaintiff third party must be able to
establish all the ingredients of the particular LOrt under which the plaintiff
third party is claiming and it is open lo the contractor to raise an
appropriate defence to neutralise completely or partially the plaintiff's
claim.
Further, if the said damage, loss or injury is caused by the contractor's
subcontractor, the contractor may not be liable since the subcontractor in
law is an independent contractor for which the contractor is vicariously
liable under tort. The contractor's responsibility towards the said plaintiff
would be limited to the duty to select a competent sub contractor. In
D & F Estates Ltd & Ors v The Church Commissioners for England &
Ors, 1 the House of Lords held that ' ... the Court of Appeal's primary
ground for allowing [the contractor] Wates' appeal was that they had
properly employed competent subcontractors to do the plaster work for
whose negligence they were not liable .... It i~ trite law that the employer
of an independent contractor is. in general, not liable for the negligence
or other torts committed by the contractor in the course of the execution
of the work'.
If a contract provides for the employer to pay the third party, a failure
on his part to make payment does not entitle the third party to commence
an action against the employer to recover the sum so payable. This is
(1988)41 BLR I at31.
189
Public Secror Sra11dard Co11diuons of Comracr for Consrrucrwn Works 2005
because under the doctrine of privity of contract, the third party not being
a party to the said contract cannot sue the employer. Alternatively, under
the doctrine of consideration, a party who has not given any consideration
to the other party who is in breach is not entitled to commence an action
against the other party for breach of contract. However, the employer may
be liable under a statute like the Contracts (Rights of Third Parties) Act.
Further, any payment made by the contractor to the employer pursuant
to a contrac tual arrangement for the employer to forward the money to
the third party does not relieve the contractor from his liability towards
the third party, if any. In any event, even if the third party has received
money from the employer, the third party is not prevented from
commencing an action against the contractor to recover the amount which
the contractor is liable to pay to the third party.
Intentio n of the Clause
This clause has one sub-clause. It essentially allows the Employer2 to

recover from the Contractor3 the cost of making good any property other
than the Works4 belonging to the Employer or the government or any
other statutory or public authority where damage, loss or injury was
caused to the said property by the Contractor, or any person for whom the
Contractor is responsible. If the affected property does not belong to the
Employer, he must pay the recovered amount to the other party and
obtain for the Contractor a discharge or release from any liability from
the recipient of the recovered amount as the Contractor may reasonably
require.5
Contractor

The Contractor's obligations are not stated directly. Instead, Clause 29
sets out the consequences of what appears to be a breach of their
obligations. Therefore, it may be inferred from the clause that the
Contractor must not cause any damage, loss or injury to property other
than property forming part of the Works belonging to the Employer or the
government or any other statutory or public authority arising directly or
indirectly out o f or in relation to or in connection with the design for
which the Contractor is responsible, the construction or the completion of
the Works under the Contract. 6 In addition, the Contractor must ensure
that the same is not caused by any person for whom the Contractor is
2
3
4
5
6

For defirution of Contractor, see cl I. I (f).
For definition of Works. see cl I . I (ag).
See cl 29.
190
Clause 29
Damage IO Propeny of Employer or Govemmelll
responsible including the Contractor's servants and agents or any

subcontractors and their servants and agents.
The Contractor is obliged to pay the Employer the cost of making
good such damage, loss or injury on the presentation of an itemised
certificate from the Employer or the relevant authority specifying the
amount payable. This obligation is subject to the contractor's right to
prove it was not caused as prescribed by the Contractor or any person for
whom the Contractor is responsible. 8
The extent of the Contractor's liability is limited to the amount
specified in the itemised certificate issued by the Employer that is to be
reduced by an amount representing the damage. loss or injury to property
in which the Superintending Officer (SO) is satisfied was not caused by
any negligence, omission, breach o f contract or default of the Contractor,
or any person for whom the Contractor is responsible.
The Contractor's liability to the said owners in this clause remains
although the Contractor may have made payment in full to the Employer
pursuant to this clause, unless the Employer is able to procure for the
Contractor a discharge or release of their liability to the said owners.
Further, Clause 29. 1(3) expressly provides that the Contractor is still
liable to the said owners in respect of any other remedy at law which the
said owners have against the Contractor.
As mentioned above, the Contractor has a right to challenge the amount
certified by the Employer or the relevant authority as payable by the
Contractor. The Contractor is entitled to prove that the certified amount
or any part of it was not caused by any negligence, omission, breach of
contract or default of the Contractor or any person for whom the
Contractor is responsible.9
When the Contractor pays the Employer the cost of making good the
said damage, loss or injury to property or if the said cost is deducted by
the Employer from the moneys due to the Contractor, the Contractor is
entitled to a discharge or release in respect of the said cost from the
owners of the affected property which the Contractor may reasonably
require and which the Employer must furnish or procure. 10
The Contractor is e ntitled to the return of any balance of the sum that
was withheld by the Employer pursuant to Clause 29.1(2)(b) as soon as
the cost payable by the Contractor has been ascertained and deducted
from the sum retained.
7
8
9
10
Seecl29.l(I).
Seecl29.l(l).
See cl 29. I(I).
See cl 29. 1(2)(a).
191
P 11blic Sector Sw11dard Co11di1io11s of Co111mc1for Co11s1r11r1io11 Works 2005
Employer
After the Employer has recovered the said cost from the Contractor, there
are ob ligations imposed on the Employer in three situations. First, the
Employer must release the balance of the sum withheld to the Contractor
as soon as the cost payable by the Contractor has been ascertained and
deducted from the sum retained, where the cost was not ascertained
earlier and the Employer had withheld a sum of money that was payable
to the Contractor.'' Second, the Employer must pay the amount to the
relevant authority where the affected property does not belong to the
Employer upon payment or deduction of such cost being made where. the
cost was ascertained. 12 Third, in both cases, upon payment or deduction,
the Employer must furnis h to or procure for the Contractor such
discharge or release as the Contractor may reasonably require. n
If the Employer fails to comply with the abovementioned obl igations.
he would be liable for breach of contract.
The Employer has a right to recover the said cost if the fo llowing are
establi shed:
( l)
(2)
(3)
(4)
the property that suffered damage, loss or injury other than the
Works belonged to the Employer or the government or any other
s tatutory or public authority;
the said damage, loss or injury was caused by the Contractor o r any
person for whom the Contractor is responsible including the
Contractor's servants and agents or any subcontractors and their
servants and agents;
the said damage, loss or injury arose directly or indirectly out of or
in relation to or in connection with the design for which the
Contractor is responsible, construction or completion of the Works
under the Contracc; and
the amount payable as itemised in a certificate given by the
Employer or the government or any other s tatutory or public
authority.
However, this right is s ubject to the extent that the Contractor may prove
to the satisfaction of the SO that the cost or any part of it was not caused
by any negligence, omission, breach of contract or default of the
Contractor or any person for whom the Contractor is responsible where
the Employer or the government or any other statutory or public authority
11
12
13
Clause 29
is able to specify the amount payable in a certificate. This holds good

even if the Employer is not liable to the relevant authority for the said
damage. loss or injury. 14 Where the said cost has not been ascertained at
the time any moneys payable to the Contractor are due for release to him,
the Employer may withhold a sum which is, in the opi nion of the SO,
sufficient to cover such a liability. 15
Role of the SO
The role of the S0 16 under this clause has two parts. First, if the cost of
making good the prescribed damage, loss or injury to property has not
been ascertained at the time any moneys payable to the Contractor are
due for release to him, and if the Employer wants to know the amount
which he may withhold, the SO must give his opinion as to what s um of
money would be suffic ient to cover the Contractor's liability to pay the
said cost of making good as the Employer may only withhold the amount
given by the S0. 17
Second, when the itemised certificate is presented to the Contractor by
the Employer for the recovery of the cos t of making good of the
prescribed damage, loss or inj ury, and when the Contractor sets out to
prove the extent to which the amount or any part of it was not caused by
any negligence, omission, breach of contract or default of the Contractor,
or any person for whom the Contractor is responsible, the SO must decide
on the amount which the Contractor has satisfied him that the Contractor
is not responsible for. 18
Others
Position of othe rs
In the case of property belongi ng to the government or any other statutory

or public authority that suffers damage, loss or injury caused by the
Contractor or any person for whom the Contractor is responsible
including the Contractor's servants or agents or any subcontractors and
their servants or agents arising directly or ind irectly out of o r in relation
to or in connection with the design for which the Contractor is
responsible, construction or completion of the Works under the Contract,
the cost of making good such damage. loss or injury may be paid to the
14
15
I6
See cl 29. 1(2J(b).

See cl 29.1(2)(a).
See cl 29.1 (2)(a).
17
18
192
Damage to Property of Employer or Govemme111
Seecl29.l(I).
See cl 29.1(2)(bJ.
For definition of Superintending Officer. see cl I l(ac).
See cl 29. I(2)(b).
See cl 29. I( I).
193
Public Secror Standard Conditions of Contract for Co11structio11 Works 2005
said owner by the Employer if the Employer is paid the said cost or the
Employer has deducted the same from moneys due to the Contractor. 19
It is expressly provided that the remedy at law which the owners of the
property that has suffered damage, loss or injury under the circumstances
against the Contractor is not affected by the arrangement for
compensation under Clause 29. 20
Clause 30 - Assignment and Subcontracting
Role of the others

To assist the Employer in the recovery of the cost of making good the
prescribed damage, Joss or injury, the government, the other statutory and
public authority must produce an itemised certificate specifying the
amount payable.21
Cross References
There is no express reference to any clause. The provision for recovery of

money by the Employer from the Contractor is found in Clause 35.
Further, the Employer may also use the Security Deposit to make good
any loss or damage sustained as a result of any breach of contract
pursuant to Clause 4.5(3). Alternatively, if a Performance Guarantee has
been given in lieu of the Security Deposit, the Employer also makes a call
on the said guarantee.
19 Sec cl 29. 1(2)(a).

20 See cl 29. 1(3).
2 1 See c l 29. 1( 1).
Generally
This clause, although amongst the shortest, has a significant number of

areas of general legal principles. The first sub-clause, 30. 1, provides for
four of these principles. First, the clause introduces the concept of
personal performance. Second, the clause prohibits the assignment of
contractual rights unless the Employer agrees to it in writing. Third, the
clause also prohibits assignment of liabilities rights unless the Employer
agrees to it in writing which may include the concept of novation. Fourth,
the clause prohi bits the vicarious performance of the specified functions
a nd the execution of the Works.
The second sub-clause prohibits the sub-contracting as prescribed
unless the Superintending Officer (SO) gives prior consent.
Unless it is recognised by the law as a contract which requires personal
performance. it may be vicariously performed. A useful explanation of
vicarious performance may be found in Chitty on Contracts, 1 which says
that 'A contracting party can in the case of many contracts enter into an
arrangement by which some other person may perform for him, as far as
he is concerned, the obligations of the contract, and the other contracting
party will be obliged to accept that performance in accordance with the
terms of the contract. The contracting party wi ll , however, be liable for
any breach that may happen. and the other contracting party is not bound
or indeed entitled to sue the substituted per~on for breach of contract,
although there may, of course. be a remedy in tort, eg where the
substituted person negligently damages or causes the loss of goods
entrusted to him. This is technically known as vicarious performance and
it is "quite a mistake to regard that as an assignment of the contract: it is
not" [quoted from Davies v Collins [1945] I All ER 247 at 249]'. 2
In the same book,3 the English common law is set out as '[c]ontractual
rights. being things in action as opposed to things in possession, were not
assignable at common Jaw without the consent of both contracting
2
3
194
Chitty 011 Co111racts (27th ed, 1994, Sweet & Maln~cll).

Supra, note I, p 987, para 19-046.
Supra. note 1. p 953, para 19-00 I.
195
C/aufe JO - Assignment and Subcontractmg
Public Sector Standard Conditions of Co111ract for Constmction Works 2005
parties'. It is further said that ' [a]ssignments normally take effect "subject
to equities" . .. . Thus, where a claim arises out of contract under which
the debt itself arises, and the claim affects the value or amount of the debt
which one of the parties purported to assign for value, then if the assignee
subsequently sues, the other party to the contract may set up that claim
(including the right to set the contract aside) by way of defence against
the assignee as cancelling or diminishing the amount to which the
assignee asserts his rights under the assignment' .J
Both in England and Singapore. the principles of the common Jaw
governing assignments became statutory. Thus in Singapore, section 4(8)
of the Civil Law Act provides that:
Assignment of debts and choses in action effectual to pass right and
remedy
Any absolute assignment by writing under the hand of the assignor, not
purporting to be by way of charge only, of any debt or other legal chose in
action of which express notice in writing has been given to the debtor, trustee
or other person from whom the assignor would have been entitled to receive
or claim such debt or chose in action, shall be and be deemed to have been
effectual in law, subject lo alJ equities which would have been entitled to
priority over the right of the assignee under the law as it existed before 23rd
July 1909, to pass and transfer the legal right to such debt or chose in action,
from the date of such notice, and all legal and other remedies for the same,
and the power to give a good discharge for the same, without the concurrence
of the assignor.
Both in England and in Singapore, the prohibition of assignments is

recognised by Jaw. According to Chitty on Contracts, '[i]f rights arising
under a contract are declared by the contract to be incapable of
assignment, a purported assignment will be invalid as against the debtor.
In the leading case of Linden Gardens Trust Ltd v Lenesta Sludge
Disposals Ltd [1993] 3 All ER 417, the benefits of building contracts
were purportedly assigned by lessees of the properties on which the
building work was being carried out to assignees of the leases. Under the
building contract& there was to be no assignment of the contract by either
party without the other's consent. No such consent for the assignments
was obtained. IL was held by the House of Lords that, o n the true
construction of the prohibition clause. the assignment of the benefit of the
contract, rather than merely vicarious performance, was barred; and that
no distinction was he re being drawn by the parties between barring an
assignment of the right to future performance, as opposed to the fruits, of
the contract nor between barring an assignment of unaccrued, as opposed
to accrued, causes of action. Moreover there was no reason of public
policy not to give effect to the prohibition clause. rhe legitimate
commercial purpose of which was to ensure that the original parties to the
4
Supra. note I. p 981. para 19-039.

196
contract were not brought into direct contractual relations with third
parties'. 5
On the other hand. the assignment of burdens or contractual
obligations is not treated as assignment of benefits. Sir R Collins MR said
in Tolhurst v Associated Portland Cement Manufacturers Ltd: '[n]either
at law nor equity could the burden of a contract be shifted off the
shoulde rs of a contractor onto those of a nother without the consent of the
contractee' .6
Further. where the whole contract where both benefits and burdens are
transferred to a third party where all three parties agree, there would be a
novation taking place. Thus in Chitty 0 11 Contracts, it is said that, ' [t]he re
is no doubt that with the consent of both contracting parties all contracts
of any kind may be transferred, and the term " novation" has been
introduced from Roman law to describe this species of transfer. Novation
takes place where the two contracting parties agree that a third, who also
agrees, shall stand in the relation of either of them to the other. There is a
new contract and it is therefore essential that the consent of all parties
shall be obtained: in this necessity for consent lies the most important
difference between novarion and assignment' .7
This clause has two sub-clauses. Jn sub-clause 30.1, there are two main
parts. The first emphasis is on the personal performance of the
Contractor as regards three things known as the principal functions of
the Contractor. namely: (I) controlling the Site9 with his own Site staff;
(2) co-ordinating the work of any sub-contractors; and (3) ordering of
materials and goods for the Works. 10 The second emphasis is on obtaining
the Employer's 11 agreement in writing for what would otherwise be
prohibited in respect of four things. namely: (I) the assignment of the
Contractor's interests, rights or benefits under the Contract; 12 (2) the
transfer of the Contractor's liability; (3) the making of arrangements for
the vicarious performance of the Contractor's princ ipal functions by any
other person; and (4) the making of arrangements for the execution of the
Works being carried out by another person or persons.
ln sub-clause 30.2. there is a prohibition of the Contractor e ngaging a
subcontractor unless the Superintending Officer (S0) 13 gives prior written
6
7
8
9
10
11
12
13
Supra. note I. p 971 , para 19-025

Tolhurst 1 Associated Portland Cement Mwwfac111rers Lid j 1902] 2 KB 660 at 668.
Supra. note I, p 990. para 19-050
For defimuon of Contractor. see cl I. I ( f) .
For definiuon of Site, see cl l.l(z).
For definition of Works, see cl l.l (ag)
For definition of Employer, see cl I I (m).
For definition of Contract, see cl 1. 1(d). See also sub-ell 30. 1 and 30.2.
197
Public Sector Standard Co11di11ons of Comract for Co11str11ctio11 Works 2005
Clause 30 - Assig11111e111 and Subcontractmg
consent which cannot be unreasonably withheld. This prohibition also

applies to the Contractor when he gives pennission to engage a
subcontractor.
Once the SO's prior written consent is given, the Contractor may
engage the subcontractors and will be responsible for them unde r
Clause 4.3.
from making arrangements for the vicarious performance of such

functions by any other person and from making arrangements for the
execution of the Works is carried out by another person or persons.
In addition, the Employer may exercise his right under
Clause 13.1 (I )(e) to terminate the employment of the Contractor if the
Contractor breaches either sub-clause.
Further, if the SO has good reasons to withhold his written consent, the
Employer has a right to prevent the Contractor from engaging a
subcontractor and from giving permission to engage a subcontractor.
Contractor

The Contractor's basic responsibility for performance of his principal
functions in terms of controlling the site, co-ordinating work of
subcontractors and ordering of mate rials and goods, is restated in this
clause as the essence of the Contract.
It is the Contractor's obligation to obtain the written consent of the
Employer if he wishes to do any of the four things, namely: ( 1) to assign
his interests, rights or benefits under the Contract; (2) to transfer his
liability; (3) to make arrangements for vicarious performance of such
functions by any other person: and (4) to make arrangements for the
execution of the Works by others.
However, if it is to engage a subcontractor or to permit the engagement
of a subcontractor, the contractor is obliged to obtain the prior written
consent of the SO.
If the necessary written consent is not obtained, the n the Contractor is
exposed to liabilities incurred as against the assignor or the subcontractor.
as the case may be, for total failure of consideration on the part of the
Contractor since the assignment would not be valid as against the debtor
and the sub-contract works cannot be carried out.
Further, if the Contractor breaches either sub-clause, the Contractor
exposes himself to the possibility that the SO may issue a Tennination
Certificate pursuant to Clause 31.1 (I )(e) that entitles the Employer to
tenninate the employment of the Contractor.
Ro le of the SO
In the event that his written consent for subcontracting is sought, the SO
shall not unreasonably withhold such consent.14
Cross References
There is no express reference to any clause. However, sub-clauses 30.1

and 30.2 are mentioned in Clause 3 1.1 (I )(e) under Termination for
Default by Employer. Further, this Clause 30.2 must be read with
Clause 4.3 once the SO's prior writte n consent is obtained to engage a
subcontractor and the Contractor proceeds with the said engagement.

There appears to be a course of action for the Contractor should the SO
unreasonably withhold his consent when the Contractor seeks the same
for the engagement of a subcontractor or for the permission to engage a
subcontractor.
Employer

Unless the Employer agrees in writing, the Employer has the right to
prevent the Contractor from successfully assigning his interests, rights or
benefits under the Contract and from transferring his liability as well as
198
14
See cl 30.2.
199
Clause 31 - Termination by the Employer
Generally
It can be said that usually at the time the parties entered into a contract, it
must have been with the intention to completely perform their respective
part of the bargain in a contract. However, situations may arise which
entitle either party to put an end to the contract. Under the common law
doctrine of repudiation, a party who indicates that he is no longer willing
to be bound by the terms of the contract commits an act of repudiation.
The other party may decide to accept the act of repudiation thereby
putting an end to the contract or he may insist on the carrying out of the
contract and treat the act of repudiation as an act of breach of contract. In
Dong Yuan Hang Trading Pte Ltd v Sunko (Singapore) Co Pte Ltd, 1 the
Court of Appeal adopted the decision of the House of Lords in Forslind v
Bechely-Crundal/2 which held that '[i]f one of the parties to a contract,
either in express terms or by conduct, leads the other party to the
reasonable conclusion that he does not mean to carry out the contract, this
amounts to a repudiation which will justify the other in treating the
contract as at an end, and claiming damages on that footing, without
waiting for the time when, by the contract, performance was to have
taken place'.
However, it is not easy to determine whether an act of repudiation has
actually been committed. This may be borne out by the decision of the
Court of Appeal in San International Pte Ltd (fka San Ho Huat
Construction Pte ltd) v Keppel Engineering Pte ltd3 where it was held
that:
Not every intimation of an intention not to perform or of an inability to
perform some part of a contract will amount to renunciation [repudiatory
breach]. In the case of an entire and indivisible contract, a refusal to perform
any part of the agreement will normally entitle the innocent party to treat the
contract as discharged. Otherwise, a renunciation of some but not all the
obligations under a contract will not entitle the innocent party to rescind the
I
2
3
[ 1994) 3 SLR 603 al 612.

1922 SC (I-IL) 173 at 184.
[1998]3SLR871at882.
201
Public Sector Standard Co11dirio11s of Comracr for Co11srructio11 Works 2005
conrract unless the renunciation amounts to a breach of a condition of the

contract or deprive him of substantially the whole benefit which was the
intention of the parties that he should obtain from the obligations of the
parties under the contract then remaining unperformed: The Natifri; Federal
Commerce and Nmigation Lid 1 Molena Alpha Inc & Ors [ 1979] I All ER
307; The Afovos; Afovos Shipping Co SA v Pagnan (R) & Ui (F) (1983] 1 All
ER 449. If the party who decides to accept the alleged act of repudiation is
wrong because the alleged act does not amount to repudiation in law, the part)
who purported to have accepted the act of repudiation ha~ actually terminated
the contract unlawfully.
Upon the tennination of a contract, whether lawful or not, all further
performance of the contract is no longer required and all powers given
under the contract comes to an end unless preserved. Thus in Engineering
Construction Pte Ltd v Attomey Genera/ 4 where the director's power to
give extension of time was not preserved, it was held by Lim Teong
Qwee JC that:
On 30 Apri I 1992, the contract came to an end when the contractor elected to
treat the government's breach as repudiation. The primary obligations of the
government including the obligation of the director acting on its behalf to
issue an extension of time certificate under clause 32(a) came to an end as
well as its right to perform them.... I am unable to find a provision in the
contract that can be construed to preserve the power of the director to issue
certificates under clauses 31 (a) and 32(a) upon the contract coming to an end
before completion of the works by reason of a wrongful act of the
Government and in my opinion the director had no such power after 30 April
1992.
lt may be said that the contract is discharged. However, all the rights
which have accrued prior to the discharge remains unaffected but where
the rights have yet to accrue, they do not exist. Again in Engineering
Construction Pte Ltd v Attomey Genera/5 where the liquidated damages
did not come into existence at the termination of the contract, it was held
by Lim Teong Qwee JC that '[t)he right to LAD was not merely
postponed to a future date or contingent upon some event not involving
further performance of the contract. Notwithstanding that the contractor
had overrun the date for completion and the extension of time under the
first extension of time certificate the right to LAD had not come into
existence at the time the contract came to an end before completion of the
works'. The consequences that follow the termination of a contract.
especially a construction contract. can be very complicated ranging from
ascertaining the outstanding payments due and owing from one party to
the other to the use of the contractor's plants, equipment. and materials
which are on site at the time of the termination to the giving up of
possession of the site.
4
5
Clause 31 - Ten11i11ario11 by the Employer
Consequently, to avoid all the inherent problems of a tennination

based on the common law right Lo do so. a contractual right to terminate
the contract may be incorporated into the contract. Thus. a termination
clause may be useful in two ways. First, it sets out a procedure for the
contract to be terminated so that there 1s certainty as to whether the
contract has been properly tenninated instead of a party being surprised
that ?e has unlawfully terminated the contract although it appeared to him
that 1t was a law~ul t~rmination. Second, it sets out what each party is to
do after the tennmat1on has taken place. This would avoid any aroument
over what each party's rights and entitlements may be after termin~tion.
H?wev~r, parties ~ave to agree whether this contractuaJ right to
termmate 1s made available to one or both parties. Parties would also have
to consider whether the right to terminate be categorised as one with
default on the part of the other party or one without default since the
agreed contractual remedies are likely to be different.
This clause has four sub-clauses. It provides the Employe~ with a

contractual right to terminate the Contract7 with or without the default of
the Contractor8 in the various situations as prescribed in the clause.
Generally, there are three ways in which the Contract may be terminated
by the Em~l~y.er. The C?ntractor is not given such a right except for a
Contractor-m1tiated ternunation provided by Clause 13.2 which is to be
treated as a termination by the Engineer under Clause 31.4.
First, the Employe~ may at a~y time tenninate the Contract by giving
the Co_ntractor a written Notice of Termination. Second, upon the
happenmg of. the_ pres_c~bed events, the Employer may give to the
Contractor notJce m wntmg of the termination of the employment of the
Contractor. The provision for notice is found in Clause 36.2(4). Third,
upon the issue of the Termination Certificate9 issued pursuant to
Clause 3l:1 ( 1) by the Superintending Officer (SO) 10 and the happening of
the prescnbed def~ult_ of ~e. Contractor, the Employer may also give to
the Contractor notJce m wntJng of the termination of the employment of
the Contractor.
The clause also provides for the contractual rights and obligations of
the ~m~loyer an? the Contractor consequential upon the respective
tennmat.Jons. PartJcularly. the Employer i~ entitled to impose liquidated
damages 11 after termination.
6
7
8
9
[199411SLR687 at 691and 692.

Supra, note 4.
I0
11
202
For definition of Employer, see cl l.l(m).

For definition of Contractor. seed I 1(0.
For definition of Tenmnation Certificate. see cl 31.1 (I).
For definition of Superintending Officer. see cl I I (ab).
See cl 16 (Liquidated Damages).
203
Clause 31 - Term111a1io11 by the Employer
Public Seczor Standard Co11di1io11s of Co111rac1 for Co11s1ruc1io11 Works 2005
Relating to the consequences upon termination is the provision found

in Clause 24.4 which provides for the Employer to deal with any hired
Construction Equipment 12 that the Contractor has brought to the Site 13 for
the execution of the Works within seven days after the date o n which the
termination has become effective.
(5)
Contractor

In this clause, the Contractor's obligations are of three types. First, there
are the obligations which he must observe to avoid the issuance of a
Termination Certificate by the S0. 14 Second, there are the obligations
which he must observe to avoid the giving of a notice in writing of the
termination of the employment of the Contractor by the Employer. 15
Third, there are the obligations which he must observe upon the
termination of his employment. 16
Under the first category of obligations. the Contractor is obliged:
( 1)
(2)
(3)
not to abandon the Contract; 17

not to fail to commence the Works 18 in accordance with the Contract
unless with reasonable cause. The obligation to commence work is
found in Clause 12.l ; 19
not to fail:
(a)
(b)
(c)
(4)
compl y with Clause 9 (Programme for the Works);

to execute the Works in accordance with a programm.!
accepted under Clause 9 whereby the Works or any phase or
part will be completed within the Time for Complelion20 or
any extended time; or
to proceed with the Works with due diligence and expedition
and without delay, whether or not the Works or any phase or
part is thereby unlikely to be comple ted by the Time for
Completion. The obligation to proceed with the Works is
found in Clause 12. I ;21
to
12 For definition of Construction Eqmpment. see cl I. I(g).

t 3 For definition of Site, see cl I. I (z).
14 See cl 31.1(1).
15 See cl 31. 1(2).
16 See sub-ell 31.1 (2) and 31.4( I).
17 See cl 31.1 (I )(a).
18 For definition of Works, see cl I. l(ag).
19 See cl 3 1.l (l)(b).
20 For definition of Time for Completion, see cl I. I(al).
21 See cl 3 1.l(l)(c).
204
(6)
not to persistently fail to remove Plant, 22 materials, goods or work

from the Site or to pull down and replace work following the
expiration of 14 days from receipt by the Contractor of a written
notice by the SO to the effect that the Plant, materials, goods or
work have been condemned and rejected by the SO. This obligation
may be read with Clauses I0.7 and 10.8; 23
not to act in breach of Clause 30.1 (Assignment by Contractor) or
30.2 (Subcontractors):~~ and
not to persistently refuse or fail to comply with a written instruction
from the SO which he is empowered to give under the Contract. 25
This obligation may be read with Clause 2.5 [Instructions by
Superintending Officer].
Under the second category of obligations, the Contractor is obliged:

no t to commit an act of bankruptc} nor to become a bankrupt or
insolvent nor to make a composition with creditors or if a company,
not to have any winding-up order of any kind made nor a receiver or
manager or a judicial manager of the Contractor's undertaking or
assets appointed, nor possession taken or execution levied by
creditors or debenture holders or under a floating charge;26
(2) not to offer or give or agree to give to any person, any gift or
consideration of any kind as an inducement or reward for doing or
forbearing to do or for having done or forborne to do any action in
relation to the obtaining or execution of this Contract with the
Employer, or for showing or forbearing to show or disfavour to any
person in re lation to this Contract or any other contract with the
Employer, or if any of the like acts shall have been done by any
person employed by the Contractor or acting on his behalf, whether
with or without the knowledge of the Contractor, or if in relation to
this Contract or any other contracL wi th the Employer the Contractor
or any person e mployed by him or acting on his behalf shall have
committed any offence under the Penal Code or the Prevention of
Corruption Act o r any re-enactmenl or modification of such Code or
Act or shall have abetted or attempted to commit such an offence or
shall have given any fee or reward the receipt of which is an offence
under the said Acts Y
(3) not to fail to provide the security deposit in accordance with
Clause 1.5 (Security Deposit);18
(I)
22
23
2.i
25
26
27
28
For definition of Plant. see cl 1. 1(v).

See cl 31. l(l)(d).
See cl 31.l(l)(e).
See cl 3 1.l(t)(f).
See cl 3 1. 1(2)(a).
See cl 31.1 (2)(b).
See cl 31.1 (2)(c).
205
Clause 31 - Tenni11atw11 by the Employer
Public Sector Standard Co11ditio11s of Contract for Co11stmctio11 Works 2005
(4) not to fail to insure the Works nor to deposit insurance policies or
(5)
receipts for premiums as required by Clauses 27 and 28; 29 and

where the Contractor has been issued with a Termination Certificate
or a copy thereof, he is obliged:
(a)
(b)
(c)
to make good the default specified in the said Termination

Certificate within seven days;
not to repeat the default specified within 30 days of the
Termination Certificate; and
not to commit any other default as would entitle the SO to
issue a Termination Certificate within 30 days of the issue of
the original Termination Certificale. 30
Under the third category of obligations, the Contractor is obliged:

upon the receipt of the Employer's notice in writing to terminate the
Contractor's employment under Clause 31.1(2) (Termination for
Default) to immediately vacate and surrender possession of the Site
to the Employer, leaving all Construction Equipment, Plant,
Temporary Works,3 1 temporary buildings, structures, tools, goods,
equipment and unfixed materials upon the Site, other than those
which the Contractor may be specifically directed in writing by the
SO to remove;
(2) upon demand by the Employer, the Contractor must pay to him ~e
amount by which the Employer's Cost exceeds the sum which
would have been payable to the Contractor upon due completion by
the Contractor as prescribed in Clause 31.2(3):
(3) upon the receipt of the Employer's written Notice of Termination
under Clause 31.4(1) (Tem1ination Without Default) to immediately
vacate and surrender possession of the Site to the Employer. In
addition he has to remove all his Construction Equipment and
labour force from Site; and
(4) to provide all reasonable assistance to the SO when he certifies
payment to the Contractor following the termination of the Contract
without default of the Contractor.32
(2)
if the Contractor fails to comply with the second category of

obligations, he is exposed to the effects of a termination notice
issued by the Employer pursuant to Clause 31.1 (2). In particular:
(a)
(b)
(c)
the Contractor is exposed to the effects of a lien over all of the

said Construction Equipment. Plant, Temporary Works,
temporary buildings. structures, tools, goods, equipment and
unfixed materials and the right of sale given to the Employer
pursuant to Clause 31.2( 1);
the Contractor is liable to the Employer in respect of the
Employer's Cost as defined in Clause 31.2(3); and
the Contractor is liable to the Employer in respect of the
Liquidated Damages in accordance with Clause 31.3.
(l)
There is also a reference in Clause 31.4(2) that the Contractor must

comply with the requirements of Clause 23 (Procedure for Claims).
The Contractor is exposed to the following liabilities:
( I)
if the Contractor fails to comply with the ftrst category of

obligations, he is exposed to the effects of a Termination Certificate
issued by the SO pursuant to Clause 31.1(1); and
29 See cl 31.1 (2)(d).

30 See cl 31.1 (2)(e).
31 For definition of Temporary Works, see cl l. l(ae).
32 See cl 31.4.
206
The Contractor's right to remove his Construction Equipment, Temporary

Works, temporary buildings, structures, tools, goods, equipment and
unfixed materials upon the Site, upon termination of the Contract
depends on whether the Contractor receives a notice in writing of
termination pursuant to Clause 31. l (2) (Termination for Default) in
which case he may do so if the SO specifically directs in writing or
whether the Contractor receives a Notice of Termination pursuant to
Clause 31.4 (Termination Without Default), in which case, there is
express provision that he must remove his Construction Equipment but
there is no mention of the other items belonging to the Contractor.
When the Contract is terminated pursuant to Clause 31.1 (2)
(Termination for Default), the Contractor is entitled to receive only such
sum, if any, as the SO may certify would be payable to the Contractor
upon due completion of the Works by the contractor after deducting the
Employer's Cost.33
However, when the Contract is terminated pursuant to Clause 3 I .4
(Termination Without Default), the Contractor is entitled lo payment as
certified by the SO for all work done and any Loss and Expense suffered
by the Contractor subject to compliance by the Contractor with Clause 23
(Procedure for Claims) less any sums previously paid or due to or
recoverable by the Employer from the Contractor. :14
This clause does not expressly remove the Contractor's common law
right to terminate the Contract and the contractor's common remedies
made available on the Contractor's acceptance of the Employer's act of
repudiation.
33 See cl 31.2(3).
34 See cl 31.4(2).
207
Public Sector Standard Co11ditia11s of Co111ract for Co11strnctio11 Works 2005
Role of the contractor

There is no contractual role for the Contractor to play in this clause as it
does not provide for a contractual termination by the Contractor.
However, the Contractor may nevertheless choose to terminate the
contract by accepting any act of repudiation committed by the Employer.
However, it is not easy to identify suc h an act of repudiation going by the
existing case law.
Employer
Employer's obligations a nd liabi lities

When the Contract is terminated by the Employer pursuant to
Clause 31.1 (2) (Termination for Default). the Employer is obliged Lo give
notice to the Contractor in accordance with Clause 36.2(4). The
Employer is also obliged to pay to the Contractor any sum, including
damages and amounts for which the Employer was liable at the date of
termination, in respect of the Contract only upon the expiry of the Defects
Liability Period35 of the whole of the Works and thereafter upon the SO
ascertaining and certifying an amount, known as the Employer's Cost,
representing the total of the cost to the Employer of the completion and
remedying of any Defects,36 damages for delay in comple tion, if any, as
provided by Clause 31.3 or otherwise, and all other expenses incurred by
the Employer. 37
However, when the Contract is terminated by the Employer pursuant to
Clause 31.4 (Termination Without Default), the Employer is obliged to
pay the amount certified by the SO which must be expeditiously done
following the said termination less any sums previously paid or due to or
recoverable by the Employer from the Contractor. 38
Where the termination is without default, the Employer is liable to the
Contractor in respect of the cost for all work executed prior to the date of
termination at the Rates for the Works in accordance with
Clause 3 l .4(2)(a). The Employer is also liable to the Contractor for any
Loss and Expense suffered by the Contractor in connection with or as a
consequence of the termination in accordance with Clause 3 I .4(2)(b).
Clause 31 - Termi11ario11 by the Employer
connected to the Contractor's performance of the Contract by giving a

notice in writing to the Contractor pursuant to Clause 3 1.1 (2)
(Termination for Default). This right is without prejudice to any other
rights and remedies that may be available to the Employer. Second, when
the Employer, at his complete discretion. terminates the Contract by
giving the Contractor a written Notice of Termination pursuant to
Clause 31.4(1) (Termination Without Default).
Where the termination is brought about pursuant to Clause 31. l (2), the
Employer or any other contractor appointed by him has the right to use
for completion of the Works, any of the Construction Equipment, Plant,
Temporary Works. temporary buildings. structures, tools, goods.
equipment and unfixed materials left upon the Site pursuant Lo
Clause 31.1(2) as the Employer may think proper.39
The Employer has the following remedies:
(I)
(2)
(3)

In this clause, the Employer has the right to terminate the Contract in two
situations. First, the Employer may terminate the contract when the
Contractor has committed the prescribed act or omission which is
35
38
This clause does not expressly remove the Employer's common law right
to terminate the Contract and the Employer's common remedies made
available on the Employer's acceptance of the Contractor's act of
repudiation.
For definition of Defects Liability Period, see cl I .l(k).
36 For definition of Defects, see cl I. I(j).

37
he has a lien over all of the Construction Equipment, Plant,

Temporary Works, temporary buildings, structures, tools, goods,
equipment and unfixed materials left upon the Site pursuant to
Clause 3 J. I (2) and may sell any of the same and apply the proceeds
of the sale in or towards the satisfaction of any sums due or
becoming due to him from the Contractor under the Contract;40
the Employer may recover from the Contractor as a debt due to the
Employer, the amount by which the Employer's Cost exceeds the
sum which would have been payable to the Contractor upon due
completion by the Contractor as prescribed in Clause 31.2(3); and
the Employer is entitled to the same liquidated damages for delay as
those which would have been payable if the Contractor had
completed the Works or phase or part on the actual completion date
of the Employer or the other contractors or persons appointed by the
Employer if the employment of the Contractor has been terminated
for default pursuant to Clause 31. 1 and completion of the Works or
any phase or any part by the Employer or any other contractors
appointed by the Employer to complete the Works, phase or part has
been delayed beyond the Time for Completion. Upon the issue of a
certificate under Clause 31.3(2), the amount of damages certified is
immediately recoverable by the Employer from the Contractor.41
See cl 31.2(3).
See cl 31.4(2).
208
39
40
41
See cl 31.2( I)
See cl 31.2( I ).
See cl 31.3.
209
Clause 31 - Tenni11mw11 bv the Employer
Public Sector Sta11dard Co11ditions of Co11trac1 for Cons1ructio11 Works 2005
Role of the employer

The role of the Employer depends on whether termination of the Contract
is pursuant to Clause 31.1(2) (Termin~tio~ for Default) or 31_.4(~)
(Termination Without Default). In a terrrunat1on of the Contract which is
pursuant to Clause 3 l.1(2) (Termination for D~fau_lt), th_e_ Employer fir_st
decides whether to give the Contractor a notice m wntmg of the said
termination. This must be only after the Contractor has acted as
prescribed in Clause 3 l.1(2)(a) to (e). He must then accept the
Contractor's surrender of the possession of the Site when the Contractor
vacates the Site as prescribed. 42 Although the Employer or any other
contractor appointed by him has the right to use for the completion of the
Works any of the Construction Equipment, Plant, Temporary Works,
temporary buildings, structures, tools, goods, equipment and unfixed
materials left upon the Site pursuant to Clause 3 I. I (2), the Employer
must decide whether it is proper to do so before using the same.41 Further,
because the Employer has a lien over all the said Construction
Equipment, Plant, Temporary Works, te~porary buildings . structures,
tools, goods, equipment and unfixed matenaJs left upon the Site pursuant
to Clause 3 1.1(2). he must decide whether he wants to sell any of the
same and if he so decides he must apply the proceeds of the sale in or
towards the satisfaction of any sums due or becoming due to him from the
Contractor under the Contract. 44
On the other hand, a termination under Clause 31.4( I) (Termination
Without Default) requires the Employer to so decide at any time to give a
Notice of Termination. As the Contractor has the right to remove all the
Construction Equipment from the Site, the Employer's role subsequent to
termination is limited to accepting the Contractor's surrender of the
possession of the Site.45
Besides this clause, the Employer's role in a termination may also be
found in Clause 24.4 where it is open to the Employer to take steps to use
any Construction Equipment brought to the Site by the Contractor which
is the subject matter of a hire contract.
Role of the SO
The role of the SO may be broadly divided into two parts, namely, the
respective roles in pre-termination and post-termination. Before the
contract is terminated, the SO's role is limited to a termination pursuant
42
43
44
45
See cl 31.1(2)
See cl 31.2( I).
See cl 31.2( I).
See cl 31.4( I).
to Clause 31.1(2) (Termination for Default). The SO must monitor the

Contractor's performance in the Contract in respect of the matters spelt
out in Clause 31.1 (I )(a) to (f). Thus, if he is of the opinion that the
Contractor has done one of the specified acts or omissions in
Clause 31.1 (I), he may decide to issue a certificate to the Employer with
a copy at the same time to the Contractor identifying the nature of the
default which has taken place. This is known as the Termination
Certificate.46 It is implied that the SO must also monitor the acts and
omissions specified in Clause 31.1 (2)(a) to (e) and inform the Employer
of the happening of the same so that the Employer may decide whether to
terminate the contract.
The role of the SO in post-termination begins with him monitoring
whether termination has taken place so that he may carry out his role
upon the said termination. As the consequences of termination are
dependent upon whether the termination is with or without the default on
the part of the Contractor. the SO must also monitor the same. Upon the
tennination of the Contract, the SO has a role to play in respect of the
occupation and use of the Site; the status of whatever the Contractor has
brought onto the Site; and the financial position as between the Employer
and the Contractor arising from the said termination.
Only in a termination pursuant to Clause 31.1 (2) (Termination for
Default) has the SO a role in deciding whether and what Construction
Equipment, Plant, Temporary Works, temporary buildings, structures,
tools, goods, equipment and unfixed materials upon the Site the
Contractor should be directed to remove from site.47
In the certification of the final payment to the Contractor, if any, the
SO must note that the time for certificate depends on whether the
termination is made pursuant to Clause 31.1 (2) (Termination for Default)
or 31.4( I) (Termination Without Default). In the first situation, the SO
must determine what amount, if any, had been reasonably earned by or
would reasonably accrue to the Contractor in respect of work then
actually done by him under the Contract, the value of any of the unfixed
or partially fixed Plant, materials or goods. the value of any Construction
Equipment, Temporary Works, temporary buildings, structures, tools or
equipment and the amount received from any proceeds of sale as soon as
practicable after the repossession of the Site by the Employer pursuant to
Clause 31.48 However, the SO's power LO certify any sum as due to the
Contractor is suspended until the expiry of the Defects Liability Period of
the whole of the Works and after the SO has ascertained and certified an
amount, known as the Employer's Cost. representing the total of the cost
to the Employer of completion and remedying of any Defects, damages
for delay in completion, if any, as provided by Clause 31.3 or otherwise
46 See cl 31.1 ( 1).
47 See cl 31.1 (2).
48 See cl 31.2(2).
210
211
Clause 31- Tenni11a11011by1/ze Employer
Public Sector Standard Co11d11io11s of Contract for Co11struc1io11 Works 2005
and all other expenses incurred by the Employer.49 Subseque ntly, the SO
may decide to certify an amount payable to the Contractor upon due
completion of the Works by the contractor after deducting the Employer's
Cost. 50
To allow the Employer to claim liquidated damages fro~ the
Contractor after the employment of the Contractor has been tenmnated
for default if applicable. the SO must issue a certificate if the completion
of the Works or phase or part by the Employer or by other contractors or
persons appointed by the Employer to complete the Works or phase or
part has been delayed beyond the Time for Completion. The SO must
certify the following:
the date upon which the Contractor should have completed the
Works or phase or part;
(2) the full period of delay for which the Contractor is responsi?Ie. In
assessing the period of delay, the SO must reduce the penod of
delay to the extent that there has been any failure by the Employer
or by any other contractor or persons engaged by the Empl~yer to
use due diligence and expedition in arranging for or completmg the
remaining parts of the Works or phase or part;
(3) the total damages due to the Employer therefore; and
(4) the credit for events occurring after the termination of the
Contractor's employment which would have entitled the Contractor
to an extension of time had he duly executed and completed the
51
Works or phase or part and duly complied with Clause 14.
(I )
ln the second situation, the SO must expeditiously certify the amounts

payable to the Contractor based on the inf?nnation avail~ble including
those submitted by the Contractor. Subject to comphance by the
Contractor of Clause 23 (Procedure for Claims), the SO must certify
payment to the Contractor:
(I)
for all work executed prior to the date of termination at the rates for
the Works set out in the Contract including:
(a)
the amounts payable in respect of any other items shown and

separately priced in the contract including ~hose for
Construction equipment, temporary Works and the like, so far
as the work comprised therein has been carried out or
performed, and a proper proportion of any such items which
have been partially carried out or perfonned; and
(b) the cost of Plant, materials or goods reasonably ordered for the
Works which have been delivered to the Contractor or for
which the Contractor is legally liable to accept delivery, and
49
50
51
See cl 31.2(3 ).
See cl 31.2(3).
See cl 3 1.3(2).
2 12
where such Plant, materials or goods will become the property

of the Employer upon such payments made by him; and
(2)
any Loss and Expense suffered by the Contractor in connection with

or as a consequence of the tennination.s?
Cross References
The clauses expressly referred to in this clause are Clauses 4.5 (Security
Deposit),53 9 (Programme for the Works).54 13.2 (Suspension Lasting
More than 90 Days), 55 14 (Time for Completion),56 23 (Procedure for
Claims),57 27 (Insurance for Personal Injury, Work.men 's Compensation
and Property Damage),58 28 (Insurance of the Works),s9 30.1
(Assignment by Contractor),611 30.2 (Subcontractors), 61 3 1 (Tenni nation
by the Employer),62 31. 1(2) (Tennination fo r Default),63 31.3 (Liquidated
Damages after Tennination).64 31.3(2) (Liquidated Damages after
Tennination)65 and 3 1.4( I) (Termination Without Default).66
Clause 31 is mentioned in Clause 13.2 which concerns the suspension
of Works and allows the Contractor to initiate a tennination as prescribed
but treated as a tennination by the Employer under Clause 31.4. Clause
31 is also mentioned in Clause 36.2(4) as regards the giving of notices in
respect of termination by the Employer.
Clause 31 is also mentioned in Clause 24.4 and 24.5 which is
concerned with the use of any Construction Equipment hired by the
Contractor and the revesting and removal of any Construction
Equipment, Temporary Works, materials or goods upon tennination.
Further, it is provided by Clause 34.3 that if there is a dispute or
difference concerning tennination of the Employment of the Contractor
or the repudiation or abandonment of the Contract by either party, such
dispute or difference may be referred to arbitration/litigation without first
referring the matter to the SO in accordance with Clause 34.2( I)(a).
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
See cl 31.4(2).
See cl 31.1(2)(c).
See cl 31.l( l )(c).
See cl 31.2(2).
See cl 31.3(2).
See cl 31.4(2).
See cl 31. 1(2)(d).
See cl 31.l (2)(d).
See cl 31.l(l)(e).
See cl 31.l(l)(e).
See cl 31.2(1 ).
See cl 31.2(1 ).
See cl 31.2(3).
See cl 31.3(3 ).
See cl 31.4(2).
213
Clause 32 - Progress Payments and

Final Account
Generally
The obligation to pay in a building and construc tion contract belongs to
the employer as it represents his part of the consideration. Under the
common law, the parties may agree Lo treat the contract as an entire
contract where payment to the Contractor is made upon the entire
completion of his Works subject to the exceptions like substantial
performance. 1 On the other hand, the parties may agree to provide for
interim payment with a final payment that looks at any outstanding
payment to be made before the obligation to pay is discharged under the
obligation to make a final payment. In recent years, the payment
obligation has been regulated by statute. In Singapore, the Building and
Construction Industry Security of Payment Act 2004, which came into
operation on I April 2005, regulates progress payment by facilitating the
securing of such payment through adjudication and the consequential
statutory remedies against non-payment including, inter alia, the
suspension of works. It may be inferred from the Act as it is not expressly
provided that the parties may operate both a contractual scheme of
payment in parallel with the statutory scheme of payment provided by the
Act.
In the case of interim payments, a certification process is usually
adopted where the parties must agree to the appointment of a certifier, the
method of valuation for the amount to be certified, the mechanism for
certification and payment in which the certificate sets out the amounts
which the contractor is entitled to while leaving the employer to his right
to set-offs.
The role of a certifier has been authoritatively stated by the Singapore
Court of Appeal in Hiap Hong & Co Pte Ltd i Hong Huat Development
Co (Pte) Ltd [2001] 2 SLR 458 at [35]:
See Sapiahtoon v Lim Siew Hui I 19531 MLJ 305; Building Estate Ltd v AM Connor
[ 19581 MU 173 and Hoenig v Issacs [I 952] 2 All ER 176.
215
Clause 32 - Progress Payme111s and Final Accoum
Public Sector Standard Co11ditio11s of Co111ractfor C01wr11ctio11 Works 2005
matters where the architect is accorded a special role under the contract and
where he is expected to exercise independent judgment.
37 A refusal by a certifier to issue a certificate, or the withholding by the
certifier of a certificate, can fall under one of two categories: (i) because
nothing is due on the merits: or (ii) due to failure by the certifier to give any
consideration to the matters upon which such issue will depend. Obviously
for the first category of refusal or withholding, there would be no implied
undertaking by the owner that his architect would certify. Even for the second
category it is also doubted that there is such an implied undertaking.
It 1s vitally important to bear in mind the nature of the duties of the architect
when he is exercising then function of a certifier. As stated before, it is senled
law that he is to act fairly and independently. He is not subject to the
directions or instructions of either party although he must listen to both
parties before he arrives at his own decision. Thus, in exercising the function
of certification the architect cannot be the agent of the owners. The nature of
that function is wholly inconsistent with the architect being an agent of the
owner.
This requirement for the certifier to be impartial is not overridden by any
departmental policy where the certifier is an employee within the
employer's organisation. Thus, in Perini Co1poration v Commomvealrh
of Ausrralia, 2 Macfarlan J stated that:
The second matter which I must mention is the entitlement of the Director to
consider Departmental policy. This point must be judged against a
background that the Director is the senior officer of the Department in New
South Wales, that he is obliged to carry out the orders of his superiors and that
he has many duties under this very agreement which he performs as the
servant of the Commonwealth, and in the perfonnance of which he is obliged
to execute and give effect to Departmental policy. I am of opinion that in
discharging the duties imposed upon him by clause 35 he is entitled to
consider Departmental policy but I am also of the opinion that he would be
acting wrongly if he were to consider himself as controlled by it. His
overriding duty in perfonning the function imposed by clause 35 is to give his
own decision having regard to the rights and interests of the parties as I have
described them.
41 ... It is not the duty of an owner/employer to oversee the architect in the

discharge of [his certification] function. In fact. he should not be doing that as
it could undermine the independent nature of that function.
44 ... The machinery in the arbitration clause clearly recognises the

independent nature of the certification process and only the arbitrator, upon a
reference, can direct the architect in relation thereto. This was a recourse
which was open to Hiap Hong but they had failed to avail themselves of it. In
fact to imply the term contended for by lliap Hong would be inconsistent with
what is provided for in the arbitration clause.
45 . . . Quite clearly, if a certifier wrongly, with the knowledge or
connivance of the owner, refuses to issue a certificate, the contractor should, if
there is an arbitration clause like the one in the present case, invoke that
clause straightaway or, if there is no such clause, come to court to ask for the
appropriate reliefs.
In any event, in East Ham Corp v Bernard Sun!(!)' & Sons, 3 Lord Dilhome
said, while referring to an architect acting as a certifier, that:
The payment which the contractor is entitled to is dependent on whet.her

the employer is entitled to set-off from the amount due to the contractor.
In the House of Lords case of Gilbert-Ash (Northern) Ltd v Modern
Engineering (Bristol) Ltd,4 Lord Diplock said:
Each month he had to certify the value of the work properly executed. It
follows that at least once a month he had to examine the work done and
satisfy himself that it had been properly done. Presumably he would keep
himself infonned of the progress of the work and, while the contract did not
require him or his representatives to be always upon the site, he would regard
it as his duty to go there or to send his representative there to inspect the
sufficiency of the work done. particularly when an important stage of the
building was being completed.
So when one is concerned with a building contract one starts with the
presumption that each party is to be entitled to all those remedies for. its
breach as would arise by operation of the law, including the remedy of setting
up a breach of warranty in diminution or extinction of the price of the ~aterial
supplied or work executed under the contract. To rebut that presumption one
must be able to find in the contract clear unequivocal words in which the
parties have expressed their agreement that this remedy shall not be available
in respect of breaches of that particular contract.
However, to the question whet.her if a certifier fails to carry out his

certification duties, should the court imply a term Lo state that the
employer is responsible, was answered by the Singapore Court of Appeal
in the Hiap Hong case:
36 It is true that the architect is employed by the owner and to that extent the
latter has control over him. But such control must necessarily be confined to
matters in which the architect acts as the owner's agent and not in relation to
2
3
(1969) 12BLR82at 103.

[ 1966] AC 406 at 427-428.

This clause has eight sub-clauses. This clause has undergone the greatest
change amongst all the clauses in both the 2004 and 2005 editions of the
PSSCOC and perhaps may pose the most controversy as regards whet.her
the drafters have effectively realised their intentions. The 2004 edition
saw a few fundamental changes. In response to the market situation, time
4
216
(1974] AC 689 at 718.

217
Clause 32 - Progress Paymell/s and Final Account
lines were shortened, eg in Clause 22.2(1 ). the Superintending Officer'sS

response time to certify payment after receipt of the statement from the
Contractor6 was reduced from 21 days to 14 days. The concept of Interim
Final Account was introduced in Clause 32.5. A new Clause 32.9
(Display of Payment Information) was inserted by the 2004 edition but
has been deleted in the 2005 edition. The 2005 edition introduced
provisions which are intended to accommodate the provisions of the
Building and Construction Industry Security of Payment Act 2004. In
particular, the terminology from the Act is used. It appears to be the
intention of the drafters that the statutory scheme of payment introduced
by the Act be integrated into the PSSCOC although the Act appeared to
have allowed a parallel contractual scheme of payment. Thus terms like
Payment Claim may be found in Clause 32.l and 32.7, and Payment
Response and Response Amount are found in Clause 32.2.
In the first sub-clause, 32.1, which provide for Payment Claims, there
are two limbs. There are several provisions in the first limb that requires
analysis as regards whether they infringe the anti-contractino
out
0
provision of section 36 of the Act.
The starting point is Clause 32.1(1) which expressly provides that the
Contractor submits, to the Employer7 and not to the Superintending
Officer (SO) as in the previous editions, at monthly intervals a claim for
payment known as the Payment Claim and which has the same meanin o
ascribed LO it as in the Act. However, the Contractor is still requ ired t~
give a copy of the Payment Claim to the SO.
According to section 2 of the Act, a payment claim is a claim made by
a claimant for a progress payment under section I 0. By the same
section 2, progress payment is defined as a payment to which a person is
entitled for the carrying out of a construction work or supply of goods or
services, under a contract and, includes: (a) a single or one-off payment;
or (b) a payment that is based on an event or a date. Therefore by putting
the meaning of progress payment into the definition of the payment
claim, a payme.nt claim is a claim by a claimant for a (progress payment)
payment to which a person is entitled. Hence it is respectfully submitted
that it is not possible to provide the submission of a statutory payment
claim to trigger off any payment scheme since a statutory payment claim
can only be made when a person becomes entitled to a payment
presumably under the building contract as the Act itself does not
prescribe how a person becomes entitled to payment. At most, the
purported statutory payment claim is really a contractual payment claim.
Further, it is expressly provided by Clause 32. l (I) that the Payment
Cl~im is to be in such form as the SO may from time to time prescribed.
This appears lo be a legacy from the previous edition but may be fatal to
the validity of the Payment Claim as it may infringe on the provisions of

section 36 of the Act which disallows contracting out of the Act.
According to section 10(3)(b). the payment claim shall be in the form and
manner, and contain such other information or accompanied by such
documents, as may be prescribed. Indeed, the form is prescribed by
regulation 5 of the Building and Construction Industry Security of
Payment Regulations 2005.
Clause 32. l ( 1) also provides that the Contractor must show the
amounts in the Payment Claim known as the Claimed Amount to which
the Contractor considers himself to be entitled up to the last day of th e
monthly interval in question in respect of items (a) to (e) inclusive. It is
expressly provided that the Payment Claim shall be made in compliance
with the requirements of the Act. According to section 2 of the Act,
claimed amount means the whole or part of any progress payment
claimed by a claimant in a payment claim. and includes any interest
payable under section 8(5) which refers to interest payable on the unpaid
amount of a progress payment that has become due and payable. Once
again it is clear from the definition of the claimed amount that the
payment claim cannot be used to trigger off any payment scheme. Instead
it is submitted that the statutory payment scheme can be triggered off
only after the contractual payment scheme has failed and hence there is a
provision lo claim for interest in respect of the unpaid amount. Otherwise
there is no need to include interest in the claimed amount.
The second limb, 32.1(2). declares the Contractor's right to submit
monthly Payment Claim up to the issue of the Interim Final Account in
Clause 32.5(1) and (2).
The second sub-clause, 32.2, has two limbs and regulates Payment
Certificates. By the first limb, 32.2(1 ), the SO must issue the Payme nt
Certificate to the Contractor and not the Employer as provided in the
previous editions although a copy is issued to the Employer. The Payment
Certificate is to show the amounts which may consist of deduction of any
sums which have been or may become due and payable by the Contractor
to the Employer under the Contract or otherwise which are collectively
known as the Response Amount. It is to be noted that the Payment
Certificate must comply fully with the requirements for Payment
Response made in contemplation of the Act: and by the next sub-clause,
the Payment Certificate is deemed to be the Payment Response from the
Employer if the Employer does not provide any response within 14 days
from the Payment Claim.
According to section 2 of the Act, response amount means the amount
that a respondent proposes to pay to a claimant in a payment response
whereas by Clause 32.2(1) the response amount shows the amounts to
which the Contractor is in the SO's opinion entitled in respect of the
Claimed Amount. Clearly. the SO is required to certify an amount which
in his opinion the Contractor is entitled and this cannot be what ought to
be in the Payment Response as prescribed by the Act which should show
the amount which the Employer proposes to pay the Contractor. IL is
5
6
7
For definition of Superintending Officer. see cl I. I (w).

For definition of Contractor, sec cl I. l(e).
For definition of Employer, see cl I . I (I).
218
219
_- -V""
VJ ....
ururac11or <.:011s1ruc1io11 Works 2005
therefore submitted that the Payment Certificate cannot be used as a

Payment Respome.
The second limb, 32.2(2), prescribes the issue of the Employer's
Payment Response within 14 days from the Payment Claim as well as
deeming the SO's Payment Certificate as a Payment Response upon the
Employer's failure to issue a Payment response. As explained above, it is
submitted that the purported deeming provision ought not to succeed.
The third sub-clause, 32.3, is not new. It provides for the correction or
modification of certificates previously issued in respect of any error in the
certificate as well as any over or under valuation in any previous
certificates. It is further submitted that by virtue of this provision, the
Payment Certificate cannot be deemed as a Payment Response since there
is no provision in the Act to correct or modify the Payment Response.
This clearly amounts to contracting out of the Act which is not permitted
by section 36 of the Act.
The fourth sub-clause, 32.4, has three limbs and regulates the Final
Payment Claim. The first limb, 32.4(1), prescribes that the Contractor
should submit in writing a claim for final payment known as the Final
Payment Claim within 90 days of the Date of Substantial Completion.
By the second limb, 32.4(2), the Contractor must show in the Final
Payment C laim, tne final amounts which the Contractor considers
himself to be entitled in respect of all matters set out in Clause 32.1 . The
limb proceeds to give details of the contents of the Final Payment Claim.
The last limb, 32.4(3), declares that the Final Payment Claim
constitutes a Payment Claim provided that the requirements for the Final
Payment Claim are fully complied with under the Act. ll is first submitted
that there is no Final Payment Claim provision in the Act and therefore it
is submitted that this limb is ambiguous. As explained earlier, Payment
Claim does not comply with that defined in the Act. Similarly, the Final
Payment Claim does not comply with the definition of Payment Claim.
The fifth sub-clause, 32.5, has nine limbs and regulates the Interim
Final account, the Final account and the Final Account Certificate. In the
first limb, 32.5( I), there are two parts. In part (a), the SO has to issue two
documents to the Contractor within 21 days of receiving the Contractor's
Final Payment Claim, namely, an interim assessment of the draft final
account known as the Interim Final Account and the Payment Certificate
based on this Interim Final Account. In part (b), which is similar to
Clause 32.2(2), it is expressly provided that the Payment Certificate
issued under the preceding part (a) shall be deemed the Payment
Response from the Employer if the Employer does not provide any
response within 21 days from the Final Payment Claim. For similar
reasons offered above, the SO's Payment Certificate issued pursuant to
Clause 32.5( l)(a) cannot be a deemed payment response because the SO
is certifying an amount that i~ based on the Interim Final Account
whereas, the Payment Response issued pursuant to section l I of the
Building and Construction Industry Security of Payment Act 2004 must
220
Clause 32 - Progress Payments and Final Accoum
contain the Response Amount, which is defined in section 2 as the

amount that a respondent proposes to pay to a claimant.
In the second limb, 32.5(2), which also has two parts, part (a) provides
the alternative scenario \\here the Contractor fails to submit the Final
Payment Claim. This will still result in the SO issuing his Interim Final
Account but it will be within 150 days from the date of Substantial
Completion and the payment certificate will be issued by the SO within
30 days of the issue of the Interim Final Account. It is then declared that
both these documents are not subject to the Act, presumably they are not
issued in response to a payment claim submitted by the Contractor as is
required under the Act. Part (b) provides a contractual arrangement for
the Contractor to disagree with the contents of the Interim Final Account.
In the third limb, 32.5(3), the SO is required to provide a draft of the
final account known as the Final Account not later than 30 days after the
end of the Defects Liability Period, the period of which may be found in
the Appendix. The Final Account is to show three things: (a) the
adjustments which the SO considers should be made to the Contract Sum
which is defined by Clause 1.1 (e) as the lump sum set out in the Letter of
acceptance; (b) the amounts which the SO considers that the Contractor
is entitled under the express provisions of the Contract; and (c) the
amounts which the SO considers that the Employer is entitled under the
express provisions of the Contract.
The next limb, 32.5(4), provides for the Contractor's response to the
Final Account. lt is open to the Contractor to do one of three things:
(a) the Contractor may accept one or more of the amounts set out in the
Final Account; (b) the Contractor may dispute any amount in which case
he is required to submit his grounds of dispute in writing to the SO within
30 days of the receipt of the Final Account. failing which the failure to
submit grounds of dispute would be deemed to be accepted by and shall
be final and binding on the Contractor: or (c) the Contractor may choose
not to do anything which will have the same result as not submitting any
grounds of dispute.
The fifth limb, 32.5(5), provides for the SO's response to the
Contractor's submission of his grounds of dispute. The first response
option given to the SO is whether he amends the amounts disputed.
However, the amendments may not result in giving what the Contractor
wants and therefore may still leave the amount being disputed. The
second response option given to the SO is whether he is issuing to the
Contractor a notice of amendment to the Final Account. Should the SO
issue this notice, then there is an automatic reference of any ground of
dispute not dealt with or resolved by the said notice to the SO pursuant to
Clause 34. Alternatively, the SO may inform the Contractor that he is not
issuing such a notice.
The next limb, 32.5(6), bas two parts concerning the Final Account
Certificate. By part (a), the SO is required to issue the Final Account
Certificate within 30 days of the acceptance or deemed acceptance by the
Contractor of the Final Account or the amendment to the Final account.
221
Public Secror Sumdard Condirions of Co111rac1 for Cons1ruc11011 Works 2005
Clause 32 - Progres5 Payme111s and F111al Acco11111
Alternatively, by part (b), the SO must issue the Final Account Certificate
within 30 days from the date the SO informs the Contractor in writing
that he would not issue a notice of amendment to the Final Account. The
two options, however, would not be helpful to the SO where the SO has
issued the notice of amendment but there is no acceptance or deemed
acceptance of the Final Account.
The seventh limb, 32.5(7), prescribes the content of the Final Account
Certificate. It certifies the difference between: (a) the adjusted Contract
Sum and an amount which the SO considers the Contractor to be entitled
to pursuant to the Contract; and (b) the amounts so far certified for
payment, whether or not paid.
The next limb, 32.5(8), provides for the prescribed amendments of the
Final Account and/or the Final Account Certificate within 30 days of the
issue of the Final Account Certificate or the Final Completion Certificate,
whichever is the later.
The last limb, 32.5(9), expressly provides that the SO is not obliged to
issue the Final Account Certificate before the issue of the Final
Completion Certificate. However, the issue of a Final Account or a Final
Account Certificate before the Final Completion Certificate shall not
relieve the Contractor from his obligations and liabilities arising during
the Defects Liability Period.
The sixth sub-clause, 32.6, provides for the Employer's honouring of
the SO's certificate issued pursuant to Clause 32 or any other term of the
Contract. It is expressly provided that the certified amount is to be paid
by the Employer to the Contractor subject to the Employer's right to
deduct or set-off any sum or damages for which the Contractor is or may
be liable under the Contract or in any other way. The payment must be
made within 21 days or such other time period as may be stipulated in the
Appendix after the date of the SO's certificate. This sub-clause also
prescribes the rate of interest payable upon all sums unpaid from the date
which the same should have been paid.
The seventh sub-clause, 32.7 has six limbs and regulates the claim and
payment of Goods and Services Tax (OST). The first limb. 32.7( I),
provides that OST is deemed not to have been allowed in the Contractor's
te~der. The second limb, 32.7(2) provides that the Employer is obliged to
reunburse the Contractor any OST charged unless the Contractor is not a
taxable person under the OST Act. The third limb, 32.7(3), provides for
the Contractor to claim OST. The fourth limb, 32.7(4). provides for the
Employer to arrange for him to issue to himself the tax invoice. The fifth
limb, 32.7(5), provides for the co-operation of the Employer and the
Contractor in a situation where there is any dispute, difference or
question that may arise between either the Employer or the Contractor
and the Comptroller of OST. The last limb, 32.7(6), declares that
Clause 34 does not apply to any dispute. difference or question under
Clause 32.7.
. The last sub-clause, 32.8, expressly provides that the Employer is not
hable to pay to the Contractor any damages whether by way of interest or
otherwise, for any failure or delay by the SO in certifying any payment

due or payable to the Contractor.
222
223
Contractor

There are three main sets of obligations and liabilities imposed on the
Contractor. The first set relates to payments comprising the Payment
Claim and the Final Payment Claim. The second set relates to the Interim
Final Account, the Final Account and the Final Account Certificate. The
third set relates to the OST.
Under the first set of obligations and liabilities, the Contractor must,
by Clause 32.1 ( l ), submit to the SO at monthly intervals. up to the SO's
issue of the Interim Final Account as provided by Clause 32. l (2), a claim
for payment known as a Payment Claim in a form as may be prescribed
by the S0. 8 This Payment Claim must be made in compliance with the
Building and Construction Industry Security of Payment Act 2004 and
must contain the amounts to which the Contractor considers himself to be
entitled up to the last day of the monthly interval in question known as the
Claimed Amount in respect of:
( I)
(2)
(3)
(4)
(5)
the value of the Permanent Works9 executed;

any other items shown and separately priced in the Contract 10
including those for Construction Equipment, 11 Temporary Works 12
and the like;
the value of materials, Plant 13 and goods delivered by the Contractor
on the Site 14 for incorporation in the Permanent Works but not
incorporated in such Works;
any other sum lo which the Contractor is entitled pursuant to
Clause 23.5 (Payment of Claims): and
any amount due to the Contractor under an Option Module. 15
The contents of the Claimed Amount as described in Clause 32.l(l)

appears not to be consistent with the definition given by section 2 of the
Act which provides that a claimed amount means the whole or part of any
progress payment claimed by a claimant in a payment claim and includes
any interest payable under section 8(5) in respect of the unpaid amount of
a progress payment that has become due and payable. It is submitted that
8
See cl 32. 1(I).
9
For definillon of Permanent Works. see cl l. l(q).
10 For definition of Contract, see cl I. I (c).
11 For definition of Construciion Equipment, see cl I I<f).
12 FordefinitionofTemporaryWorks.seecl l.l(z).
13 For defini11on of Plam, see c l I. I (r).
14 For definition of Site. see cl l . l(u).
15 For definition of Opt10n Module, see cl I. I (p).
Public Sector Standard Condition.s of Contract for Co11s1ructio11 Works 2005
Clause 31 - Prog ress Paw1enrs and Final Acco11111
in giving a fair reading of the definition of the Claimed Amount which

the Payment Claim must contain, a Payment Claim can only come about
after the Employer refuses to pay any progress payment, in whole or in
part, that is due and payable to the Contractor in the agreed contractual
payment scheme thereby accounting for the interest component of the
Claimed Amount. Therefore, it is further submitted that the current
arrangement of requiring the Contractor to submit a Payment Claim that
is in compliance with the Act as the first step in the prescribed payment
scheme cannot be possible. At most, the prescribed Payment Scheme is a
contractual one.
By the provisions of Clause 32.2. if the Contractor fails to submit a
Payment Claim, it would appear that the SO is not required to issue his
Payment Certificate. Further, by Clause 32.3 when the SO decides to
amend a certificate for overvaluation in any previous certificate by the
issue of a certificate to correct the error, and where the amount paid by
the Employer to the Contractor is in excess because of the said
overvaluation, such excess shall be recoverable by the Employer from the
Contractor. Clause 35.1 may be read with this sub-clause in respect of
recovery by the Employer.
By Clause 32.4( I), the Contractor is obliged to submit a claim for final
payment known as the Final Payment Claim in such form as the SO may
prescribe within 90 days of the Date (or the last Date) of Substantial
Completion. The Contractor is obliged to show the final amounts to
which the Contractor considers himself to be entitled in respect of the
matters set out in Clause 32. l and as prescribed in Clause 32.4(2).
This claim 16 must show the following:
By the provisions of Clause 32.5( 1), if the Contractor submits the

Final Payment Claim, the SO is required to issue the Interim Final
Account and the Payment Certificate based on this Interim Final Account
within 21 days of the receipt of the Contractor's Final Payment Claim.
However, if the Contractor fails to submit a Final Payment Claim, the SO
must nevertheless issue his Interim Final Account within 150 days from
the Date (or last Date) of Substantial Completion followed by the issue of
a payment certificate based on the Interim Final Account within 30 days
after the issue of the Interim Final Account.
The second set of obligations relates to the Interim Final Account, the
Final Account and the Final Account Certificate. By Clause 32.S(l)(a),
the Interim Final Account is defined as the SO's interim assessment of
the matters set out in Clause 32.5(3). Briefly. the matters are the adjusted
Contract Sum, the amounts which the Contractor is e ntitled a nd the
amounts which the Employer is entitled.
There are two possible scenarios as set out in the respective clauses of
32.5(1) and 32.5(2). Under Clause 32.5(1). the Contractor is not obliged
to respond to the Interim Final Account issued under Clause 32.5(l)(a).
On the other hand, Clause 32.5(2) provides that the Contractor may
respond if he does not agree to the Interim Final Account issued under
Clause 32.5(2)(a). The Contractor may submit his grounds of dispute to
the SO.
In response to the SO's draft of the final account which is known as the
Final Account_l 9 the Contractor is obliged by Clause 32.5(4 ) to notify the
SO in writing, within 30 days of receipt by the Contractor of the Final
Account, any amount which he does not accept, if he is to preserve his
claim against the Employer. In addition, he must submit his grounds of
dispute in writing to the SO together with the said notification or
separately, although in the latter case he must nevertheless do so within
the said 30 days. 20
Accordingly, in reply to the Contractor's grounds of dispute, the SO
may issue a notice of amendment to the Final Account which contains the
amendments made by the SO to the disputed amounts. The obligation to
notify the SO in writing about the Contractor's not accepting any amount
and to submit any ground of dispute set out above is applicable to the
notice of amendment to the Final Account as it is applicable to the Final
Account itself. 21
In addition, the SO may also amend the Final Account and/or Final
Account Certificate in the event of any error or accidental inclusion or
exclusion of any Plane, materials, goods or work or figure in any
computation. Within 30 days of receipt by the Contractor of the said
(I)
(2)
the final amounts to which the Contractor considers himself to be

entitled in respect of all matters set out in Clause 32. J(a) to (e). If,
or to the extent that the measurements of the Works have not been
completed by the SO pursuant to Clause 21.1 (Contractor to Actend
Measurement) other than by reason of any failure on the part of the
Contractor, the Contractor must set out his best estimates of the
relevant measurements and amounts due in respect of the Works;
and
all adjustments which the Contractor considers should be made to
the Contract Sum. 17
The Contractor must include in his submission of the Final Payment

Claim, any substantiation of any claim not provided pursuant to
Clause 23.3 (S ubstantiation of Claims) or 23.4 (Access to Contractor's
Books and Documents). 18
Sec cl 32.5(3) where the draft of the fi nal account is referred to as the 'Final
Account'.
20 See cl 32.5(4).
21 See cl 32.5(8).
19
l6
17
18
See cl 32.4.
For definition of Contract Sum, see cl l.l(d).
See cl 32.4.
224
225
Public Sec/or Standard Conditions of Contract for Co11s/ructio11 Works 2005
amendment co the Final Account and/or Final Account Certificate

pursuant to Clause 32.5(6), the Contraccor must notify the SO in writing
as to whether or not any amount as sec out in the amendment to the Final
Account and/or Final Account Certificate pursuant to Clause 32.5(6) is
accepted by the Contractor. If he does not accept an amount, he must
submic his grounds of dispute in writing to the SO within the said 30
days. 22
The SO may then issue a notice of amendment in respect of the said
amendment to the Final Account and/or Final Accounc Certificate in
reply to the Contractor's grounds of dispute. Within 30 days of receipt by
the Conuactor of the notice of amendment to the amendment to the Final
Account and/or Final Account Certificate pursuant to Clause 32.5(6), the
Contractor must notify the SO in writing as to whether or not any amount
as set out in the notice of amendment to the amendment to the Final
Account and/or Final Account Certificate pursuant to Clause 32.5(6) is
accepted by the Contractor. If he does not accept an amount, he must
submit his grounds of dispute in writing to the SO within the said 30
days. 23
It should be noted that the issue of a Final Account or Final Account
Certificate before the issue of the Final Completion Certificate does not
relieve the Contractor from his obligations and liabilities arising during
the Defects Liability Period. 24
Under the third set of obligations, the Contractor is deemed not to have
allowed in his tender for goods and services tax chargeable under the
GST .A:ct for the supply of goods, services or works required under the
Contract. 25 He is to show the amount which he considers himself to be
entitled in respect of GST payable to him by the Employer when he
submits the Payment Claims and Final Payment Claim as required by
Clause 32. l and 32.4. Upon the issue of each certificate, the Contractor
must forthwith prepare and submit to the Employer within seven days26
the tax invoice under the Act in respect of that certificate. The amount of
GST in the invoice must accord with the amount of GST stated in the
relevant certificate. However, if the Employer notifies the Contractor that
it intends to apply to the Comptroller of GST for approval to issue to
itself tax invoices in respect of the certificates, or that it has obtained such
approval, the Contractor must give his written agreement that, if such
approval is or has been granted, he will not issue tax invoices in respect of
such certificates. 27 If such approval is or has been granted by the
Comptroller of GST, then the Contractor must not issue tax invoices in
respect of such certificates, provided that the Employer may, at any time
22
23
24
25
26
27
See cl 32.5(6).
See cl 32.5(6).
See cl 32.5(9).
See cl 32.7.
In the first edition of the PSSCOC. it was 14 days.
See cl 32.7(4).
226
Clause 32 - Progress Pan11e111s and Final Acco11m
by notice in writing served on the Contractor, reimpose on him the

obligation contained in Clause 32.7(3).
Further, if any dispute, difference or question shall arise between either
the Employer or the Contractor and the Comptroller of GST in relation to
any tax chargeable or alleged to be chargeable in connection with the
Contract or the Works or any part thereof, the Contractor must render to
the E~ployer ~uch support and assistance as may be necessary to resolve
the dispute. difference or question.28 It is to be noted that Clause 34
(Settl~men~ ?f Disputes) does not apply to any dispute, difference or
question ansmg under Clause 32.7.
Like ~is obliga~ions and liabilities, the Contractor's rights and remedies
are . discussed m three sets, namely, those relating to the payment
certificates, matters relating to the Interim Final Account the Final
Account and the Final Account Certificate and GST.
'
In Clause 32, there are two main aspects of concern for the Contractor
namely, his ~resc~bed entitlements and the constraints imposed on him i~
r~spect of his entitlements relating to the monthly payment certificates.
First, the Contractor is entitled to both certifications by the SO and
payments by the Employer. Every month, the Contractor is entitled to
receive a certificate from the SO certifying the amounts to which the
Contractor is in the SO's opinion entitled in respect of each of the
amounts in the payment claim submitted by the Contractor29 and then to
receive .payment.s from the Employer pursuant to Clause 32.6 (Period for
Ho~ounng .certificate). However, it is to be noted that the SO is only
obliged to issue these certificates within 14 days of the receipt of the
Contractor's payment claims as prescribed. ''1
Where there is any error in any previous certificate and the SO issues a
ce~ificate to correct the said error, the Contractor would accordingly be
enutled to the payment of any additional amount if the error corrected is
one of undervaluation. 11
~ith the 2005 edition, the status and meaning of the SO's Payment
~en1ficat.e has changed because it is contingent on whether the Employer
issues. his P~yment Response pursuant to Clause 32.2(2) and in
compliance wnh the Building and Construction industry Security of
P~y~ent Act 2004. ff the Employer does not issue his Payment Response
w1thrn 14 days from the Contractor's Payment Claim, then the SO's
Payment Certificate is deemed to be the Payment Response from the
Employer and the Contractor presumably is entitled to treat it as such. It
28
29
30
31
See cl 32. 7(5).

See cl 32.2( I).
See cl 32.2( I) and 32.2(2).
See cl 32.3.
227
Clause 32 - Progress Paymems a11d Final Acco11111
would appear that it is the intention of the drafters of PSSCOC that the
Contractor would be entilled to dispute the Employer's Payment
Response and proceed with the application for adjudication as prescribed
by the said Act.
In respect of the Interim Final Account, the Contractor is entitled to
receive the same from the SO regardless of whether the Contractor
submits his Final Payment Claim. However, the consequences are
different.
In the first scenario where the Contractor submits a Final Payment
Claim, he is entitled to receive not only the SO's Payment Certificate that
is based on the Interim Payment Certificate but the corresponding
payment by the Employer pursuant to Clause 32.6 (Period for Honouring
Certificate). The Contractor is then entitled either: (a) to receive from the
Employer. his Payment Response in compliance with the Building and
Construction Industry Security of Payment Act 2004; or (b) failing
which, to treat the SO's Payment Certificate as the deemed Payment
Response from the Employer. Accordingly, it was intended by the
drafters of PSSCOC 2005 that this would have entitled the Contractor as
Claimant under the said Act to dispute the Employer's Pay ment Response
and to apply for adjudication under the Act as prescribed. However, as
explained in the section on the intentions of this clause, it is submitted
that the purported Final Payment Claim cannot be a payment claim as
prescribed by the said Act and may be treated as an attempt to contract
out of the Act and therefore invalid or it may be treated as a contractual
arrangement rather than a successful attempt at complying with the said
Act.
In the second scenario where the Contractor fails to submit a Final
Payment Claim, then the Contractor is nevertheless entitled to receive
from the SO his Interim Final Account within 150 days of the Date (the
last Date) of Substantial Completion and also his payment certificate
based on the Interim Final Account within 30 days after the issue of the
Interim Final Account. In this case, the Contractor is entitled to dispute
the interim Final Account and submit his grounds of dispute to the SO.
Unfortunately, no period is stated for the Contractor to submit his dispute
and grounds of dispute. If the Contractor does so, he is entitled to receive
from the SO either (a) the SO's notice of amendment informing the
Contractor about the amendments made by the SO; or (b) the SO's notice
that the SO would not be issuing the said notice of amendment. In this
second scenari o, the arrangement does not lead to the Contractor being
entitled to pursue adjudication under the said Act as is intended in the
first scenario.
By Clause 32.5(3), the Contractor is entitled to receive from the SO a
draft of the final account known as the Final Account not later than 30
days after the end of the Defects Liability Period, the period of which can
be found in the Appendix. The Contractor's rights and remedies are
dependent on his response. Three possible scenarios are expressly
provided for in C lause 32.5(4).
First, if the Contractor accepts the final Account, he is then entitled to

the Final Account Certificate within 30 days of the acceptance under
Clause 32.5(6) and if there is an amount certified as due to the
Contractor, that amount b a debt payable by the Employer to the
contractor as prescribed by Clause 32.5(7).
Second, if the Contractor does not accept an amount and follows it
with a submission of his ground of dispute in writing to the SO within 30
days. then the Contractor is entitled to the SO's response under
Clause 32.5(5), namely, either: ( l) the SO issues his notice of amendment
to the Final Account informing the Contractor of the amendments; or
(2) the SO infonns the Contractor that he has decided not to issue the
notice of amendment to the Final Account. T he Contractor is entitled to
have the dispute resolved under Clause 34. In the case where the SO
issued a notice of amendment to the Final Account, the Contractor is
entitled to. under Clause 32.5(6)(a), the Final Account Certificate within
30 days of the amendment to the Final Account. This may be compared
to the case where the SO had infonned the Contractor that he would not
issue a notice of amendment to the Final Account, the Contractor is
entitled under Clause 32.5(6)(b) to the Final Account Certificate within
30 days of the SO so informing the Contractor.
Third, if the Contractor fai ls to submit any ground of dispute by way of
a complete omission to respond to the Final Account or there is an
omission in his reply indicating any other disputes, those disputes which
have not been submitted are deemed to have accepted. Like the first
scenario, if the Contractor is deemed to have accepted the Final Account,
then the Contractor is entitled to the Final Account Certificate within 30
days of the deemed acceptance of the Final Account under Clause 32.5(6)
and if there is an amount certified as due to the Contractor, that amount is
a debt payable by the Employer to the contractor as prescribed by
Clause 32.5(7).
However, the Contractor must note that, by Clause 32.5(7), the
Contractor is not entitled to the issue of the Final Account Certificate
before the issue of the Final Completion Certificate.
Further, the Contractor' s entitlement to the Final Account and the
Final Account Certificate is subject to Clause 32.5(8). It expressly
provides that where there is any error or accidental inclusion or exclusion
of any Plant, materials, goods or work or figure in any computation, the
SO may within 30 days of the issue of the Final Account or the Final
Account Certificate, whichever is the later, amend the Final Account
and/or the Final Account Certificate as prescribed.
By Clause 32.8, it is expressly provided that where the SO fails to
certify or delays in the issue of the certificate in respect of any payment
due or payable Lo the Contractor, the Contractor is not entitled to recover
any damages from the Employer whether by way of interest or otherwise.
The Contractor. upon the issue of any certificate is entitled to payment
by the Employer in respect of the amount certified due within 21 days or
such other time period as may be stipulated in the Appendix after the date
228
229
Public Sector S1a11dard Co11ditions of Coll/ract fnr Co11structio11 Works 2005
Clause 32 - Progress Paw11e11ts and Final Accoum
of such certificate. If the Employer fails to make payment. the Contractor

is entitled to the payment by the Employer interest at the rate stated in the
Appendix or at the rate of 5% a year upon all sums unpaid from the date
by which the same should have been paid. 32 It may be worth noting that
while the drafters of PSSCOC 2005 intended that the Contractor submit
the Payment Claim even before the SO certifies the amount due and
therefore is before the Employer has a chance to pay the amount due
under the PSSCOC, it is submitted that this cannot be right since by
section 10(3), the payment claim must state the claimed amount which
must necessarily include the interest in respect of the amount due under
the contract but remained unpaid, thereby strongly indicating that a
payment claim can only be issued after an opportunity be given to the
Employer to make payment. Accordingly, by prescribing the submission
of a payment claim by the Contractor at the beginning of the payment
scheme prescribed in PSSCOC 2005 does not appear to be in compliance
with the provisions of the Act.
The Contract also imposes certai n constraints on the Contractor's
entitlement to make claims against the Employer. Where the Contractor
fails to submit any substantiation of any claim as required by Clause 23.3
(Substantiation of Claims) and 23.4 (Access to Contractor's Books and
Documents), the Contractor must submit the same with his Final Payment
Claim. If the Contractor fails to submit the same with his Final Payment
Claim. such substantiation in respect of any event occurring before the
Date of Substantial Completion shall, subject to Clause 23.5(2) (Payment
of Claims) and 23.6 (Failure to Comply), bar the Contractor from
advancing any claim for such an amount. 33
Appendix. or at the rate of 5% a year if none is stated upon all sums

unpaid from the date by which the same should have been paid. 35
Third, the Employer must reimburse the Contractor any GST charged
on the goods. services or works required under the Contract unless the
Contractor is not a taxable person under the Act. 36 If any dispute,
difference or question shall arise between either the Employer or the
Contractor and the Comptroller of GST in relation to any tax chargeable
or alleged to be chargeable in connection with the Contract or the Works
or any part thereof. the Employer must render to the Contractor such
support and assistance as may be necessary to resolve the dispute,
difference or question. 37 It is to be noted that Clause 34 (Settlement of
Disputes) does not apply to any dispute. difference or question arising
under Clause 32.7.
In the 2005 edition, the Building and Construction Industry Security of
Payment Act 2004 created statutory adjudication which imposed on the
Respondents an obligation to give a Payment Response in order to be able
to raise defence, set-off and counterclaim against the Claimant at the
adjudication of the disputes relating to an allegation of a failure to make
payment as prescribed by the Act. In an attempt to make the PSSCOC
compliant with the Act, Clause 32.2(2) provides for the Employer to give
a Payment Response within 14 days from the Payment Claim submitted
by the Contractor, failing which the SO's Payment Certificate is deemed
the Payment Response from the Employer. Similarly, Clause 32.S(l)(b)
provides for the Employer to give a Payment Response within 21 days
from the Final Payment Claim, failing which the Payment Certificate
issued by the SO under Clause 32.5( I )(a) is deemed the Payment
Response from the Employer.
Employer
Prior to the 2005 edition, the Employer's obligations touch on three areas.
First, he is not liable to the Contractor for any damages whether by way
of interest or otherwise. for any failure or delay by the SO in certifying
any payment due or payable to the Contractor.34
Second, the Employer must pay the Contractor, within 21 days or such
other time period as may be stipulated in the Appendix after the date of
suc h certificate, the amount due to the Contractor under any certificate
issued by the SO pursuant to Clause 32 or any other term of the Contract,
subject to the Employer's right to deduct or set-off any sum or damages
for which the contractor is or may be liable under the Contract or in any
other way. If he fails lo make payment within the times stipulated, the
Employer must pay to the Contractor interest at the rate stated in the
32
33
34
See cl 32.6.
See cl 32.4(2).
See cl 32.8.
230

There are three ex.press provisions on the Employer's rights and
remedies. 38 First, where there is any error in any previous certificates
issued by the SO, the Employer is entitled to recover any excess between
the amount paid by the Employer to the Contractor pursuant to sucb an
error in a previous certificate and any amount due and payable to the
Contractor under any subsequent interim certificate or the Final Account
Certificate. 39
Second, where the difference certified in the Final Account Certificate
is in favour of the Employer, the Employer is entitled to be paid by the
Contractor as a debt the said difference. 40
35
36
37
38
39
40
See cl 32.6.
See cl 32.7(2).
See cl 32. 7(5).
See also cl 35.
See cl 32.3.
See cl 32.5(5).
231
Public Sector Standard Conditions of Contract for Construc11011 Works 2005
Clause 32 - Progress Payment.~ and Final Accoul//
Third, the Employer has the right to deduct or set-off any sum or
damages for which the contractor is or may be liable under the Contract
or in any other way against any amount due to the Contractor under any
certificate issued by the SO purs uant to Clause 32 or any other term of the
Contracl. 41
as used in the Act supports the Employer's defence, set-off and counterclaim against the Payment Claim of the Contractor. However, it has
already been argued earlier that the SO's Payment Certificate cannot be
used as a Payment Response as prescribed in the Act because what is
certified by the SO is the amount which in the SO's opinion is entitled as
compared to what the Act requires of a Payment Response which is what
the Respondent Employer proposes to pa} the Claimant Contractor.
Should the SO find any error in any certificate, he is empowered, and
in the circumstances warranting it, to make any correction or
modification in respect of any error whether arithme tical or otherwise in
any previous certificate which has been issued by him and make such
adjustment as may be necessary in the amount of payment due and
payable to the Contractor to take into account any over or under valuation
in any previous certificate.43
The other part of the SO's role prescribed in this clause concerns the
issue of the Interim Final Account introduced by the 2004 edition of the
PSSCOC, the Payment Certificate based on the Interim Final Account,
Final Account and Final Account Certificate.
There are two routes dictating the issue of the Interim Final Account.
The ftrst route is triggered by the submission of the Final Payment Claim,
the form of which the SO may prescribe. As explained already, this would
amount to infringing the anti-contracting out provision of section 36 of
the Act thereby invalidating the provision for the purpose of the A ct.
Subsequently, the SO issues the Interim Final Account within 21 days of
receiving the Contractor's Final Payment Claim pursuant to
Clause 32.5(1)(a). This is an interim assessment of the draft final
account. At the same time under the same clause, the SO issues a
Payment Certificate which must comply fu ll y with the requirements for
Payment Response. By Clause 32.5(l)(b). this certificate is deemed to be
the Pay ment Response from the Employer if the Employer fails to
provide a Payment Response himself.
The second route is an alternative one where the Contractor fails to
submit a Final Payment Claim. By Clause 32.5(2)(a), the SO must
nevertheless issue the Interim Final Account within I 50 days from the
Date (the last Date) of Substantial Completion. Subsequently, within 30
days after the issue of the Interim Final Account, the SO must issue a
payment certificate based on the Interim Final Certificate. However, there
is an important difference as regards the status of this certificate. This
certificate shall not be used as a deemed Payment Response. Indeed, it is
expressly provided that the Interim Final Account and the payment
certificate shall not be subject to the Act.
Un like the monthly payment certificate, the provision by the SO to the
Contractor of a copy of the draft of the final account, which is known as
the Final Account, is not dependent on any submission to be made by the
Ro le of the SO
The role of the SO in this clause may be seen as divided into two parts,
namely, the issue of the monthly Payment Certificates and the matters
relating to the finalisation of the accounts as between the Employer and
the Contractor.
The SO as a certifier in respect of monthly payments to the contractor
in this clause is concerned with the issue of the monthly Payment
Certificate under Clause 32.2( 1) for which the SO may decide to
prescribe, from time to time, the form in which the Contractor must
submit the Payment Claim showing the amounts which the Contractor
considers himself to be entitled up to the last day of the monthly interval
in question. 42 Under the Building and Construction Industry Security of
Payment Act 2004, it is provided that the form is to be statutorily
prescribed and, by section 36, comracting out of the provisions of the Act
is not allowed and all such provisions are invalid. It is submitted that this
provision is invalid and the form must be as prescribed by the Act and the
Regulations. In any event, the Payment Claim cannot contain anything
other than the prescribed items of claim in Clause 32.1.
It is to be inferred from Clause 32.2 that unless the Contractor submits
the monthly Payment Claim, the SO is not obliged to proceed with the
certification process of the monthly payments. Therefore, it is only within
14 days of receiving a Payment Claim duly submitted pursuant to
Clause 32. l that the SO must certify to the Contractor, with a copy to the
Employer, the amounts to which the Contractor is in his opinion entitled
in respect of each of the amounts in the statement, subject to the
deduction of any sums which have been or may become due and payable
by the Contractor to the Employer under the Contract or otherwise.
In the 2005 edition, there is an important amendment made which
affects the status of the SO as a certifier. While the common law
interpretation of the status of a certifier is clear in that the certifier must
be independent, the provision that deems the SO's Payment Certificate as
a Payment Response by the Employer should the Employer fail to give
his Payment Response may be seen as eroding the independent position
of the SO. This is because the document known as the Payment Response
4 I See cl 32.6.
42 See cl 32.1.
43
232
Sec cl 32.3.
233
Clause 32 - Progress Payme111s and Final Accou/l/
Public Sector Standard Co11d11ions of Co111rac1 for Consrrucrio11 Works 2005
Contractor. In any event, whether the Contractor submit_s the Final

Payment Claim or not, the SO must provide the Contractor with a draft of
the Final Account not later than 30 days after the end of the Defects
Liability Period or at the end of the latest Defects Liability Periods if
there are more than one such period. ln the Final Account, the SO must
show: (a) the adjustments which he considers should be made to the
Contract Sum; (b) the amounts to which he considers that the Contractor
is entitled under the express provisions of the Contract; and (c) the
amounts to which he considers that the Employer is entitled under the
express provisions of the Contract.44
Having given the Contractor a copy of the Final Account, the SO must
monitor whether the Contractor accepts the Final Account in toto or
whether the Contractor has submitted a notice that the Contract~r does
not accept any amount stated in the Final Account together with any
ground for the Contractor's said dispute. If the Contracto~ does not
submit any ground of dispute within 30 days of the_ ~ece1pt by the
Contractor of their Final Account, the SO is to note that 1t 1s deemed that
the Contractor has accepted the Final Account and this Final Account
becomes final and binding on the Contractor.45
In response to the receipt of any grounds of dispute by the Contract~r,
the SO may decide to amend the disputed amount or other amounts n~t m
dispute and to issue to the Contractor a notice of amendment to the ~ma!
Account. Alternatively, he must inform the Contractor that he has decided
not to issue a notice of amendment of the Final Account. The process of
allowing the Contractor to submit any ground _of disp~te in respect ?f any
amount which the Contractor does not accept m the Final Account is also
available to the Contractor in respect of any amount which the Contractor
does not accept in the said notice of amendment. Acc~rdingly: the ~O
must similarly monitor the Contractor's response to see 1f the said notice
of amendment becomes final and binding on the Contractor or that the
Contractor has sent in any ground of dispute.46
The next step is for the SO to issue the Final Account Certificate.
There are two options. First, if there is acceptance or deemed accepta~ce
by the Contractor of the Final Account or of the amendment to the Fmal
Account, as the case may be, the SO must issue the Final Account
47
Certificate within 30 days of the said acceptance or deemed acceptan~e.
Second if there is no agreement on the whole or any part of the Fmal
Accou~t, the SO must issue the Final Account Certificate within 30 days
from the date the SO in writing informs the Contractor that he would not
issue a notice of amendment to the Final Account.48 In any event, the SO
44
45
46
47
48
See cl 32.5(3).
See under cl 32.5(2).
See under cl 32.5(4)
See cl 32.5(6)(a).
See cl 32.5(6)(b).
234
is not required to issue a Final Account Certificate before the Final

Completion Certificate referred to in Clause 33.1 is issued. 49
The SO must certify in the Final Account Certificate the difference
between: (a) the Contract Sum as adjusted in accordance with the terms
of the Contract by the SO together with any further amounts which the
SO considers the Contractor to be entitled pursuant to the express
provisions of the Contract: and (b) the amounts so far certified for
payment, whether or not, paid. 50 If there is any error or accidental
inclusion or exclusion of any Plant, materials, goods or work or figure in
any computation, the SO is empowered to amend the Final Account
and/or the Final Account Certificate. However, he must do so within 30
days of the issue of the Final Account Certificate or the Final Completion
Certificate, whichever is the later. 51 These amendments made by the SO
are similarly subject to: (a) the provision for the Contractor to accept or
deemed acceptance or to submit any ground of dispute in writing within
30 days of the receipt of the said amendments; and (b) the SO's response
by issuing a notice of amendment to the said amendments in respect of
the prescribed errors or accidental inclusion or exclusion or by informing
the Contractor that he is not issuing the same. 52
Cross References
The clauses expressly referred to in this clause are Clauses 21. l
(Contractor to Attend Measurement).53 23.3 (Substantiation of Claims),54
23.4 (Access to Contractor's Books and Documents),55 23.5 (Payment of
Claims).56 23.5( I) (Payment of Claims),57 23.5(2) (Payment of Claims),58
23.6 (Fai lure to Comply), 59 32 (Progress Payments and Final Account)/0
32.1 (Payment Claims),61 32.2(1) (Payments Cenificates), 62 32.4 (Final
Payment Claim),63 32.5( I )(a) (Interim Final Account, Final Account and
Final Account Certificate),f>I 32.5(2)(a) (Interim Final Account, Final
49
SO
SI
52
53
54
55
56
57
58
59
60
61
62
63
64
See cl 32.5(9).
See cl 32.5(7).
See cl 32.5(8).
See cl 32.5(6).
See cl 32.4.
See cl 32.4(2).
See cl 32.4(2).
See cl 32.1 (d).
See cl 32.1 (2).
See cl 32.4(2).
See cl 32.4(2).
See cl 32.6.
See sub-ell 32.2(1 ). 32.4(2) and 32.7(3).
See cl 32.2(2)
See ~ub-cll 32.5(1 )(a). 32.5(2J(a) and 32.7(3).
See cl 32.5( 1)(b).
235
Public Sector Standard Co11ditio11S of Comract for Co11stmctio11 Works 2005
Account and Final Account Certificate),65 32.5(3) (Interim Final

Account, Final Account and Final Account Certificate),66 32.5( l )(a)
(Interim Final Account, Final Account and Final Account Certificate),67
32.5(4) (Claim and Payment of Goods and Services Tax),68 32.5(5)
(Interim Final Account, Final Account and Final Account Certificate), 69
32.7(3) (Claim and Payment of Goods and Services Tax),7 33. I (Time
for lssue)71 and 34 (Settlement of Disputes).72
Clause 32 is mentioned in Clauses 3.6, 4.4( l ), 4.4(2). 5.2, 10.4, 10.6.
10.7, 12.3, 13.1(2), 23.5(3) and 25. 1(3)(b). Clause 32.1 is mentioned in
Clause 20.2(a) and 20.2(c). Clause 32.2 is mentioned in Clause 20.2(2)(a)
and 20.2(2)(d). Clause 32.5( I) and 32.5(2) are mentioned in
Clause 20.2(2)(g).
Clause 33 - Final Completion Certificate
Generally
The appointed certifier must comply with his duty lo certify as prescribed
by the Contract from which the duty is imposed. In the case of a Final
Completion Certificate, the name of the certificate would suggest a final
completion of the Contractor's obligation to perform pursuant to the
Contract.
The likely effect of this final completion certificate is to mark the end
of the Contractor's obligation to carry out and complete the Works during
the Contract Period and his obligation to return 10 Site to carry out repair
works during the Defects Liability Period including a post-Defects
Liability Period req uired to carry out repairs to items of work identified
usually in a Schedule of Defects to be given within a fixed number of
days after the expiry of the Defects Liability Period.
The other effect of the certificate would be decided by the parties, that
is, whether the parties agree that the final certificate may act as
conclusive evidence for any specified purpose like 'the Works have been
completed in accordance with the Contract'. This means that the parties
have agreed to be bound by the opinion of the certifier and cannot raise
any dispute against the fac t for which the final certificate is conclusive
evidence. On the other hand, the certificate would be left intact as one
piece of evidence as to whether 'the Works have been completed in
accordance with the Contract'.
65
66
67
68
69
70
71
72
This clause has two sub-clauses. The first sub-clause prescribes when the
Final Completion Certificate should be issued by the Superintending
Officer (SO). The second sub-clause expressly provides that no certificate
is to have the effect of being conclusive evidence as regards the state of
the Works nor the compliance with the Contract.
See cl 32.5(2)(a) and 32.5(2)(b).

See cl 32.5( I )(a).
See cl 32.5( I )(b).
See cl 32.5(5) and 32 5(8).
See cl 32.5(8).
See cl 32.7(4).
See cl 32.5(9).
See sub-ell 32.7(6) and 32.5(5).
236
237
Public Sector Standard Conditions of Contract for Co11stmctio11 Works 2005
Contractor
The Contractor1 does not have the right to rely on any certificate of the
S0, 2 which would include the Final Completion Certificate, to be
conclusive evidence by itself in respect of whether the Works3 have been
completed or that any Plant,4 materials, goods or work to which it relates
are in accordance with the Contract. 5 Accordingly, these facts must be
established by proof. Although it is not expressly stated, it is submitted
that the effect of the Final Completion Certificate is to, inter alia, indicate
the end of the Contractor's obligation to return to the Site to complete
work outstanding at the Date or Dates of Substantial Completion as may
be instructed by the SO and to execute all works of amendment,
reconstruction and remedying defects, shrinkages or such other faults of
whatever nature as the SO may have instructed, all in accordance with
Clause 18.
Clause 33 - Final Completion Certificate
the SO mu5t monitor when 30 days after the Defects Liability Period or
Periods, as the case may be, would expire and he must know whether the
work which he instructed the Contractor to do under Clause 18 is
completed.
Cross References
The clause expressly referred to in thb clause is Clause 18 (Defects). 9
The Final Completion Certificate is also mentioned in Clause 32.5(8) and
32.5(9).
Employer
The provision in Clause 33.2 is important to the Employ,er in that any
certificate issued by the SO does not affect adversely his fight to claim
that the Contractor has breached the contract. Neither does it affect his
right to a set-off against any Contractor's claim in respect of defects.
Role of the SO
The main role of the SO in this clause is for him to issue the Final
Completion Certificate to the Contractor with a copy to the Employer.6
However, as Clause 33.1 does not state what should be in the contents of
the certificate, the SO would have to certify 'final completion'.
He is to issue it within 30 days after the expiration of the Defects
Liability Period7 or if different Defects Liability Periods are applicable to
different phases or parts of the Works, the latest of such Periods or as
soon as thereafter as any work instructed pursuant to Clause 18 is
completed.8 ln order to perform his certification duty under this clause,
2
3
4
5
6
7
For definition of Contractor, see cl l.l{e).

For definition of Superintending Officer. see cl l.l(w).
For definition of Works, see cl I.I (ab).
For definition of Plant, see cl I. I (r).
See cl 33.2. For definition of Contract.. see cl l.l(c).
For definition of Employer, see cl I. I (I).
For definition of Defects Liability Period, see cl I . I (j).
See cl 33.1.
238
See cl 33.1.
239
Clause 34 - Settlement of Disputes
Generally
In resolving disputes, parties to a contract must concern themselves wilh

whether a right to use a particular method is available and also whether
multiple methods might be used in sequence or in parallel. Further,
parties should consider whether the objective of the method of dispute
resolution is fau lt finding, that is, to conclude with a finding as to liability
as in adjudication, arbitration and litigation or whether the focus is on
looking for a solution for the dispute without ascertaining liability as in
mediation.
The right to have disputes resolved may be conferred by statutes or the
agreement of the disputing parties. Thus, parties to a contract may settle
any dispute between themsel ves in a court of competent jurisdiction
without the need to expressly provide for the parties to do so. Similarly,
under the Building and Construction Industry Security of Payment Act
2004, parties to an affected contract are entitled to use the statutory
adjudication mechanism set out therein. However, should the parties wish
to settle their disputes by referring the dispute to a third party like
arbitration or mediation, they must agree to do so either as a clause in the
contract of which they are parties or as another contract.
The methods of dispute resolution may be generally classified as those
which the parties are bound to participate, like adjud ication, arbitration
and litigation, and those which the parties may withdraw their
participation at any time, like negotiation and mediation. The parties may
choose to make the chosen method or methods of dispute resolution a
condition precedent to the parties taking the next step in resolving their
dispute. Alternatively, the parties may decide to rely on the chosen
method of dispute resolution solely thereby making it final and binding
with no possibility of appeal to the court.
Where the parties decide to use arbitration to settle their dispute with
the law of arbitration as Singapore law, it is open to them to decide
whether they wish to be governed by the Arbitration Act 1 or the
Cap 10, 1985 Ed.
241
Public Sector Siandard Co11dirio11s of Co111racr for Consrrucrion Works 2005
Clause 34 - Se11leme111 of Disputes
International Arbitration Act2 (IAA). ln Coop lntematio11al Pte Ltd v

Ebel SA, 3 Chan Seng Onn JC held that '[t]he IAA and the Model Law do
not apply to domestic arbitration unless parties have agreed in writing that
they shall apply. As for international arbitration, the lAA and the Model
Law will apply unless parties have opted out. 5 The question is what must
the parties do if they intend to opt out of the IAA and the Model Law.
How clearly must they express their intention to opt out. ... In my
opinion, it is not necessary to have an explicit agreement stating that the
Model Law or Part II [of the IAA] will not apply .... Section I 5 itself
does not appear to require a clear express term of exclusion. On a plain
and literal reading of that section, it can cover both express and implied
exclusions. If the intention is to limit section 15 to an express ouster only,
Parliament could easily have provided for it'. An express indication of the
parties' choice would avoid any dispute as to whkh Act applies.
decision. It must be noted that any such reference must state that it is
made pursuant to Clause 34. l.
By the second limb, 34.1(2). the SO is required to give his decision in
writing to both the Employer and the Contractor within 30 days after the
date upon which the SO received the reference. The effect of which is that
the decision is final and binding on the parties unless either party refers
the decision to arbitration as provided by Clause 34.2( I )(b).
The last limb, 34.1 (3). reminds the Contractor that his obligation to
carry on with the Works under the Contract remains although there is a
reference made to the SO. In addition. both parties are required to give
effect forthwith to every decision of the SO unless and until the same has
been revised by an arbitrator or as may be otherwise ordered by a Court
of competent jurisdiction.
The second sub-clause, 34.2, has three limbs and provides for the
parties to refer their disputes to arbitration or litigation. By the fust limb,
34.2( 1), which has two parts, the first part provides for the parties to
proceed with arbitration. without fust having to refer to the SO, by onr
party giving the other party a Notice of Intention to Arbitrate'; while tt
second part similarly provides for the parties LO refer the SO's decision
the SO's failure to decide, then to refer the dispute or difference alrea
referred to the SO to arbitration.
By the second limb, 34.2(2), it is stated that the Arbitration J
applies. It also provides for the appointment of the arbitrator to be agre
by the parties. failing which either party may apply to the Chairman
the Singapore International Arbitration Centre to appoint an arbitratl
Finally, it provides that the consent of the Employer is needed to initial
the reference before the Date or alleged Date of Substantial Completion. a
The last limb, 34.2(3), provides for the parties to refer to litigation in a
default situation where one party does not want to refer the dispute or
decision of the SO to arbitration.
The third sub-clause is a special provision for the parties to refer to
arbitration/litigation, disputes relating to the termination of the
employment of the Contractor or the repudiation or abandonment of the
Contract by either party within 60 days of the notice of termination or act
of repudiation or abandonment. The failure to observe the time limit
would result in the Contractor being barred from pursuing such dispute or
difference in any arbitration or court proceedings whatsoever.
The fourth sub-clause, 34.4, sets out the powers of the arbitrator
should the parties choose to arbitrate their disputes. There appears to be
two types of powers. The first type pertains to the matters concerning the
SO like opening up, reviewing and revising any certificate, opinion,
decision, requirement or notice. The second type concerns the
determination of all matters in dispute or difference. The arbitrator is not
This clause has six sub-clauses. This clause provides for the settlement of
disputes by way of reference to the Superintending Officer (S0),6
arbitration. Litigation, adjudication and mediation. The 2005 edition
included adjudication and a few amendments.
The first sub-clause. 34.1. has three limbs and provides for one avenue
to resolve disputes by way of reference to the SO which is not
compulsory. It must be read with Clause 34.2 which aJlows the parties to
refer their disputes to arbitration or litigation under Clause 34.2(1) and
34.2(3) respectively without first referring the matter to the SO as
provided by Clause 34.2(l)(a). However. by Clause 34.2(l)(b), the
parties may refer the dispute to arbitration after first referring the dispute
to the SO. Clause 34.1 must also be read with Clause 34.3 which
expressly provides that in the event of a tennination, parties shall not rely
on Clause 34. L where the subject matter of the dispute relates to the
termination. Further, by Clause 34.5, parties are not required to refer the
dispute to the SO under Clause 34. I, if the dispute may be referred to
adjudication.
By the first limb. 34.1(1). a dispute or difference of whatsoever kind
that arises between the Employer,7 or the SO or the SO's Representative
(SO's Rep)s and the Contractor9 may be referred to the SO for his
2
3
4
5
6
7
8
9
Cap 143A. 1995 Ed.

( 1998] 3 SLR 670 at 696 and 703.
See s 5 of the IAA.
Secs 15 of the IAA.
For definition of Superintending Officer. sec cl I l(ab).
For definition of Employer, see cl I. I(m).
For definition of Superintending Officer's Representative. sec cl 1.1 (ac).
For definition of Contractor. see cl l. I(f).
I0
For definition of Date of Substantial Completion. see cl 1.1 (i).

'lA1
Public Sector Sta11dard Conditions of Co11tract for Co11structin11 Works 2005
Clause 34 - Set1leme111 of Dispwes
to be influenced by any certificate issued, opinion held, decision,

requirement or notice given.
The fifth sub-clause, 34.5, has two limbs. The first limb declares that
the right to pursue adjudication under the Building and Construction
lndustry Security of Payment Act 2004 is not subject to the need to refer
the dispute to the SO first under Clause 34. l. In the second limb, it is
expressly provided that adjudication may be pursued in parallel with
mediation under Clause 34.5(1) and/or arbitration or litigation under
Clause 34.2.
The last sub-clause, 34.6, has two limbs and provides for mediation. In
the first limb, it is expressly stated that the parties would consider
resolving the dispute through mediation at the Singapore Mediation
Centre. The second limb declares that the use of mediation to resolve
disputes is not a condition precedent to the use of the other forms of
dispute resolution except for the computation of the time frames used in
sub-clauses 34.2 and 34.3.
proceed with his obligations would expose the Contractor to liability of

breaches of the Contract.
Although there is a provision for referring any dispute or difference to
formal mediation at the Singapore Mediation Centre before the
commencement of an arbitration/litigation, 15 it is expressly provided that
there is no legal obligation on the part of either party to attempt mediation
nor the extent to which they shall do so as a means of resolving their
dispute or difference. t6
In the 2005 edition, there is now no longer an obligation to refer the

prescribed dispute or difference to the SO under Clause 34.1 before
referring the same to arbitration.
However, the Contractor is still obliged to obtain the Employer's
consent in writing if the Contractor wishes to initiate a reference to
arbitration before the Date or alleged Date of Substantial Completion of
the Works. 11 In any event, should the prescribed dispute or difference be
referred to the SO under Clause 34. l for his decision, effect must be
given forthwith to every decision of the SO unless and until the same is
revised by an arbitrator or as may be otherwise ordered by a Court of
competence. 12 Accordingly, a failure to comply would expose the
Contractor to the liability of a breach of contract.
Where the dispute or difference concerns the tennination of the
Contract by either party, the Contractor is not obliged to first refer the
same to the SO but may commence the arbitration/litigation. 13
Accordingly, the Contractor must continue to proceed with his
obligations under the Contract even if there is a dispute or difference
under reference unless the Contract has been repudiated or the
employment of the Contractor terrninated. 14 Accordingly, a failure to
ll would appear from the various prov1s10ns of Clause 34, the

Contractor's right to choose a particular type of dispute resolution
method would depend on the nature of the dispute.
The first type of dispute is found in Clause 34.3, that is, any dispute or
difference which concerns the termination of the employment of the
Contractor or the repudiation or abandonment of the Contract by either
party. In this case, the Contractor is not bound to refer the dispute to the
SO under Clause 34. I. The Contractor may choose to refer the said
dispute or difference to arbitration under Clause 34.2(l)(a) or litigation
under Clause 34.2(3).
The second type of dispute is found in Clause 34.5, that is, any dispute
or difference involving a Payment Claim 17 or Payment Response to which
the Building and Construction Industry Security of Payment Act 2004
applies. It is expressly stated in this clause as well as in the said Act that
the Contractor is entitled to make an adjudication application in
accordance with the said Act. However, the Contractor may nevertheless,
seek the consent of the Employer to attempt formal mediation under
Clause 34.6. The Contractor may also commence arbitration under
Clause 34.2(l)(a) or litigation under Clause 34.2(3).
Presumably, for any other dispute or difference, the Contractor may
choose to: (a) refer the same to the SO for his decision under
Clause 34.1(1) and thereafter to arbitration under Clause 34.2(1)(b) or
alternatively compelled to proceed with litigation under Clause 34.2(3);
(b) refer the same to arbitration under Clause 34.2(1) or alternatively
compelled to proceed with litigation under Clause 34.2(3); (c) refer the
same to formal mediation before arbitration or litigation under
Clause 34.6; or (d) refer the same to litigation under Clause 34.2(3) upon
receipt of the Employer's Notice of Intention to Arbitrate.
11 See cl 34.2. For definition of the Date of Substantial Completion, see cl I. I (i).
12 See cl 34.1(3).
13 See cl 34.3.
14 See cl 34.1 (3).
15 See cl 34.5(1).
16 See cl 34.5(2).
17 For definition of Payment Claim, see cl 1.l(s).
Contractor
245
Clause 34 - Senlement of DBplltes
Role of the contractor

Arising from what has been discussed above, the Contractor must fust be
able to identify the dispute or difference and categorise the same for the
purpose of knowing what options of dispute resolution are available.
Thus, if the dispute and difference involves a Payme~t Claim or
Payment Response to which the Building and Construction Indu~try
Security of Payment Act 2004 applies, the Contractor may ~ons1der
referring the same to adjudication. It must be noted that any enlltlement
to refer to adjudication also entitles the Contractor .to refer th~ s~~ to
mediation, arbitration and litigation in parallel with the adJud1catton
reference.
If a dispute or difference shall arise for which the ~O h~s. the power to
decide, the Contractor may choose to refer the same m wntmg to the SO
for his decision. Such reference must state that it is made pursuant to
Clause 34 and a copy must be sent to the Employer. 18 Alternatively, the
Contractor may skip this stage and proceed with arbitrat~on u~?er
Clause 34.2( 1) subject to obtaining the Employer's consent m wnttng
pursuant to Clause 34.2(2).
If the Contractor is not satisfied with the SO's decision or if the SO
had failed to give notice of his decision on or before the expiry of the 30day period following the date on which the SO received the refer.ence, the
Contractor may decide within 90 days from the date of the receipt of the
said SO's decision or within 90 days from the date of expiry of the 30-day
period, as the case may be, to give notice to the Emplo~~r, with a copy for
information to the SO, of his intention to refer the dec1s1on or the dispute
or difference that had not been decided to an arbitrator by giving the
Notice of Intention to Arbitrate.
Whether this Notice of Intention to Arbitrate is given under
Clause 34.2(1)(a) or 34.2(1)(b), the Employer is entitled under
Clause 34.2(3) to bring the matter before the courts. However, if the
parties decide to agree to attempt resolving their dispute or difference
through mediation, the period between the time of receipt of the formal
Notice for mediation and the rejection of the Notice or the time of
termination of mediation is not taken into account in computing the 30and 90-day periods. 19
The Contractor may decide, with the agreement of the Employer, to
appoint an arbitrator. If there is no agreement, the Contr.actor may.dec~de
to apply to the Chairman of the Singapore Internauonal Arbitration
Centre requesting the same to nominate a person as arbitrator.
In addition, if the Contractor wishes to initiate the arbitration before
the Date or alleged Date of Substantial Completion of the Works or if
there is more than one such Date of Substantial Completion, the latest or
t8
19
alleged Date of Substantial Completion of the Works, he must obtain the

Employer's consent in writing.:o
However, where the dispute or difference concerns the termination of
the employment of the Contractor or the repudiation or abandonment of
the Contract by either party and the Contractor decides to refer such
dispute or difference for resolution, he must refer the same to an
arbitrator instead of to the SO in the first instance. In addition. if the
Contractor decides to refer any dispute or difference raised by him in
connection with the tennination of his employment or the repudiation or
abandonment of the Contract by the Employer, he must refer the same to
arbitration within 60 days of the notice of termination or act of
repudiation or abandonment. If the Contractor does not comply with this
time requirement, the Contractor is absolutely barred from pursuing such
dispute or difference in any arbitration or court proceeding whatsoever. 21
However, if the parties decide to agree to attempt resolving their dispute
or difference through mediation, the period between the time of receipt of
the formal Notice for mediation and the rejection of the Notice or the
time of tennination of mediation is not taken into account in computing
the 60-day period. 22
Employer

Generally, the obligations and liabilities of the Employer are similar to
the Contractor except for a reference to adjudication where the
Contractor would be the Claimant while the Employer is the Respondent.
Thus. the Employer is exposed to the liability of a Respondent under the
said Act.
Like the Contractor, there is now no longer an obligation to refer the
prescribed dispute or difference to the SO under Clause 34.1 fust before
referring the same to arbitration in the 2005 edition. If the Employer
wishes to commence arbitration. he is obliged to give the Contractor the
Notice of Intention to Arbitrate.
ln any event, should the dispute and di fference be referred to the SO,
the Employer must give effect to every dec1s1on of the SO unless and
until the same is revised by an arbitrator or as may be otherwise ordered
by a court of competence. 23 Failure to comply with the SO's decision
would expose the Employer to the liability of breach of contract.
Where the dispute or difference concerns the tennination of the
10
21
22
23
See cl 34. 1(1).

See cl 34.5( I).
246
Sec cl 34.2.
Sec cl 34.3.
Sec cl 34.5( I).
Sec cl 34. I (3).
247
Clause 34 - Settlement of Dispwes
:ontract by either party, the Employer is not obliged to first refer the
,ame to the SO but may commence the arbitration.24
By Clause 34.6. the Employer is not obliged to refer any di spute or
Jifference to formal mediation but may do so if both parties agree.
case the Employer has to give to the Contractor a Notice of Intention to

Arbitrate under Clause 34.2( l )(b). Alternatively, the Employer may skip
the reference to the SO and give the said Notice of Intention to Arbitrate
under Clause 34.2( I )(a).
However. where the dispute or difference concerns the termination of
the Contract by either party and the Employer dec ides to refer such
dispute or difference for resolution, he must refer the same to an
arbitrator instead of to the SO in the first mstance.27
However, the Employer may be compelled to go to court if the
Contractor so decides pursuant to Clause 34.2(3). In the reverse, the
Employer may also exercise this right under the same clause to refer the
dispute or difference to court rather than arbitration if he receives a
Notice of Intention to Arbitrate from the Contractor.
The Employer may decide, with the agreement of the Contractor, to
appoint an arbitrator. If there is no agreement. the Employer may decide
to apply to the Chairman of the Singapore International Arbitration
Centre requesting the same to nominate a person as arbitrator. As it is
ex pressly provided that the Arbitration Act is applicable.is
Alternatively, the parties may agree to attempt resolving their di spute
or difference through mediation, the period between the time of receipt of
the formal Notice fo r mediation and the rejection of the Notice or the
time of termination of mediation is not taken into account in computing
the 30- and 90-day periods.
:mploye r's rights and re medies

:Jenerally, the Employer's right under this clause is the same as the
:ontractor's except for reference to adjudication where the Employer has
10 such right to do so. In addition, the Employer's right to any dispute or
jifference to the SO is less extensive as the Contractor's. It would appear
.hat Clause 34.1 does not expressly provide for the Employer to refer to
irbitration nor the SO any di spute or difference between the Employer
md the SO or the SO's Rep. 25
The Employer's right to refer the prescribed dispute and difference to
irbitration may be found in Clause 34.2(l)(a) and 34.3 without fi rst
eferring to the SO or under Clause 34.2( 1)(b) after reference to the SO in
1ccordance with what is prescribed as the procedure.
The Employer's right to refer the prescribed di spute or difference to
litigation is found in Clause 34.2(3) and 34.3.
The Employer's right to refer the prescribed dispute or difference to
formal mediation is found in Clause 34.6.
Ro le of the employer
fhe role of the Employer is similar to the Contractor except for a
reference to adjudication where the Employer can only play the
Respondent's role under the Building and Construction Industry Security
:>f Payment Act 2004.
As explained above, the scope of dispute or difference which the
Employer can refer to the SO under Clause 34.1 is smaller than that of the
Contractor's. Thus, the Employer may choose to refer the same in writing
to the SO for his decision. Suc h reference must state that it is made
pursuant to Clause 34 and a copy must be sent to the Contractor. 26
If the Employer is not satisfied with the SO's decision or if the SO had
failed to give notice of his decision on or before the expiry of the 30-day
period following the date on which the SO received the reference, the
Employer may decide within 90 days from the date of the receipt of the
said SO's decision or within 90 days from the date of expiry of the 30-day
period, as the case may be, to give notice to the Contractor with a copy
for infom1ation to the SO of his intention to refer the decision or the
dispute or difference that had not been decided to an arbitrator, in which
14
25
26
Role of the SO
Ln the settlement of di sputes or differences between the Employer or the
SO or the SO's Rep and the Contractor, the parties may refer the same to
the SO except where the di spute or difference concerns the termination of
the Contract by either party. 29
The SO has the power to listen to and decide the reference if the
dispute or difference of whatsoever kind:
(I)
(2)
(3)
27
28
29
Sec cl 34.3.
Set! cl 34.
See cl 34. 1(I).
248
arises between the Employer or the SO or the SO's Rep and the
Contractor:
arises out of the Contract or the execution of the Works;
arises during the execution of the Works or after their completion:
and
Sec cl 34.3.
See cl 34.2.
See cl 34.3.
249
Pub/ir Sector Sumdard Conditions of Comract for Construe/ion Works 2005
(4)
arises before or after any termination of the Contract or the

Contractor's employment.JO
The dispute or difference which the SO has the power to listen and decide
includes any dispute or reference as to any opinion, instruction,
determination, decision, certificates or valuation of the SO or the SO's
Rep.11
The SO has 30 days after the date upon which he received a reference
to make a decision about the same. He must give notice of his decision in
writing to the Employer and Contractor within this 30-day period. He
must state in this notice that it is given pursuant to Clause 34 and identify
the reference pursuant to which the decision is made.J~
Others
Role of the a rbitrator

It is expressly provided that the arbitrator appointed under the Contract
shall have full powers to open up, review and revise any certificate
opinion, decision, requirement or notice and to determine all matters i~
dispute or difference which shall be submitted to him in the same manner
as if no such certificate, opinion, decision, requirement or notice had been
given, subject to any provision of the Contract which may constitute a
decision or certificate or other document as final or binding or any
document or event or omission as barring or preventing a claim being
advanced by one party against the other. 33 However. the arbitrator must
act in accordance with the Arbitration Act or any re-enactment or
modification thereof. 14
Role of the adjudicator

The role of the appointed adjudicator would be prescribed by the
provisions of the Building and Construction Industry Security of
Payment Act 2004.
Role of the mediator
Clause 3-1 - Seu/ement of Dispwes
Role of the others

The Chairman of the Singapore International Arbitration shall nominate a
person to be the arbitrator upon the application of either the Employer or
the Contractor if both cannot agree on the appointme nt of an arbitrator. 3 ~
The Singapore Mediation Centre shall host the mediation to attempt
resolving any dispute of difference between the Employer and Contractor
if both agree to do so in accordance with the Centre's prevailing
prescribed forms, rules and procedures. 16
Cross References
The sub-clauses expressly referred to in this clause are 34. I (Reference to

the Superintending Officer), n 34.2 (Reference to Arbitration),38 34.3
(Arbitration in Event of Termination)39 and 34.4 (Powers of the
Arbitrator) ..w
Clause 34 is mentioned in Clauses 14.3(5) and 36.2(4).
It is noted that Clause 2.3(b) provides for the Contractor to refer any
dispute that he has with the SO's Rep who shall confirm, reverse or vary
the act of decision of the SO's Rep.
By Clause 14.3(5), it is expressly provided that if the Contractor is
dissatisfied with any extension of Lime made or not made by the SO and
shall dispute it, he shall not in any reference to the SO or Lo any arbitrator
pursuant lo Clause 34 or otherwise (or to any tribunal) claim a greater
extension of time than that notified pursuant to Clause 14.3(1) or advance
new or additional grounds not submitted to the SO before he made his
decision, nor shall the SO or the arbitrator or any other tribunal in
considering the dispute make a decision taking into account information
which was not available to the SO at the time when the SO made his
original decision to make or not to make an extension of time.
It is also noted that by Clause 23.6. if the Contractor should dispute the
assessment, valuation or opinion of Loss and Expense under Clause 23,
the SO and the arbitrator shall decide on the basis only of the information
available to the SO at the time when he made his assessment, valuation or
opinion. and no account shall be taken of any information which the
Contractor did not supply to the SO, whether or not he could have done
so.
By Clause ~4? the appointed mediator would have to carry out the
formal med1at10n based on the prevailing rules and procedures of the
Singapore Mediation Centre.
35 See cl 34.2.
36 See cl 34.5( I).
37 See sub-ell 34.2 and 34.3.
38 See cl 34.3.
39 See sub-cll 34.2. 34.4 and 345C2).
40 See cl 34.5(2).
30 Seecl34.l(I).
31 Seecl34.l(l)
32 See cl 34.1 (2).
33 See cl 34.4.
34 See cl 34.2.
250
251
Clause 35 - Recovery by the Employer
Generally
Unless prohibited by the law, the parties to a contract may prescribe any
remedy available to any party whether pursuant to a breach or to the
performance of any lerm of the contract the occurrence of an event or
condition. However, there is a difference between a claim by a party for
damages and a claim for a debt. In Chit() on Contracts, 1 it is said that
'[t]he relevance of this distinction is that the rules on damages do not
apply to a claim for a debt, eg the plaintiff who claims payment of a debt
need not prove anything more than his performance or the occurrence of
the event or condition; there is no need for him to prove any actual loss
suffered by him as a result of the defendant's failure to pay; the whole
concept of the remoteness of damage is therefore irrelevant; the law on
penalties does not apply to the agreed sum: the plaintiff's duty to mitigate
his loss does not generally apply; and the plaintiff will usually be able to
seek summary judgment' .

This clause has one sub-clause. Clause 35.1 provides the Employer2 with
two options to recover from the Contractor3 any amount as prescribed
under the Contracl.4 First. the Employer may choose to recover from any
sum due or becoming due at any lime from the Employer to lhe
Contractor by deducting from the same or by reducing this said amount
Second, the Employer may recover from the Contractor as a debt. 5
The previous scope of recovery where the right to recover from one
contract any amount owing by the Contractor in any other contract where
the Contractor is also a party with the Employer was removed in lhe 2004
I
2
3
4
General Principles (27th ed. 1994. Sweet & Maxwell) vol I, p 1202. para 26-005.
For definition of Employer. ~ee cl I.I (ml.
For definition of Contractor, ~ee cl I . I (f).
For definition of Com:ract, see cl I . I Cd).
See cl 35. I.
253
Public Sector Standard Conditions of Co/ICract for Co11stmct1011 Works 2005
edition. The current scope of recovery is now limited to any amount

owing by the Contractor from the same contract.
Contractor
Clause 36 - Governing Law and Notices
By Clause 35. 1, in respect of any amount recoverable by the Employer

from the Contractor, the Contractor stands liable to the Employer in
respect of the said amount as a debt.
Employer
Generally
It is expressly provided that the Employer may recover from the

Contractor as a debt wherever the Contract provides for the Employer to
recover any amount from the Contractor. Such amount may be deducted
from or reduced by any sum due or to become due at any time thereafter
from the Employer to the Contractor under this Contract or any other
contract between the Employer and Contractor.
Unless the parties to a contract. including an arbitration agreement.

identify the applicable law governing the contract, the applicable law
would be identified by the court where the dispute is brought before. The
test to be used would be that of the law which the contract has the closest
and most real connection. In Shaikh Faisal (tla Gibca) v Swan Hunter
Singapore Pte Ltd,' Chao Hick Tin J, as he then was, said: [i]f it were
possible to infer what the parties had intended should be the proper law,
that should be done. If not, the proper law would have to be the system of
law with which the contract has its closest and most real connection' .
On the other hand, if the applicable law is identified by the parties, the
whole of the law of contract would be applicable unless the parties have
excluded any part of the law that is allowed. Further, this law must be
fi xed at the time of the contract. Thus, in Kredietbank NV v Sinotani
Pacific Pte ltd (Agricultural Bank of China, third party), 2 Chan Seng
Onn JC held that: ' [f]rom the three persuasive English cases3 above, it
seems clear that the proper law of a contract cannot be made dependent
on an uncertain event in future. It must be fixed at the time the contract is
made'.
The need for and importance of communication during the duration of
a building contract cannot be underestimated since there are numerous
instructions, notices, certificates and information in other fonns which
must be communicated. A fai lure to communicate as agreed may
invalidate the communication thereby adversely affecting the
consequences intended by the said communication. Thus in Central
Cross References
There is no express reference to any clause. The Employer's right to
recover from the Contractor in thi s Clause 35. l comes from the express
provisions set out in the following clauses in the Contract: Clauses 2.6(a),
2.6(b), 2.7, 10.8, 16. l(l ), 16.3, 18.3, 27.3, 28.1(3). 29. l(l ), 31.2(3) and
3 l.3{c ).
Provident Fund Board v Ho Bok Kee (t!a Ho Bok Kee General
254
[ 1995] I SLR 394 at 402 and 403.

[199913 SLR 288 at 317.
These are The Annar; Annar Shippmg " Cai.rse Algerienne d 'Assurance et de
Reassurance [ 198 1J I All ER 498, The Iran Voj da11 ; Dubai Electricity Co v Islamic
Republic of Iran Shippmg lines [1984] 2 Lloyd ~ Rep 380 at 385 and James Miller
and Partners Ltd I' Whitworth Street Estates IMane/rester) ltd [ l 970] AC 583 at
611: [1970) I All ER 796at 805.
255
Clause 36 - Governing law and Notices
Public Sector Siandard Conditions of Contract for Constrnctwn Works 2005
Conrractor),4 the Court of Appeal held that the Superintending Officer's

notice of default was invalid because it was delivered by hand and not by
registered post as prescribed in the contract. The court had said:
In the present case the parties have expressly provided that the notice
specifying the default on the part of the contractor is to be sent by registered
post'. No alternative mode of service is provided for in the clause.... We
share the view expressed by Collins J in Ericksson 1 Wha/lev [ 1971] I
NSWLR 397 that the provision of this method of service no doubt was
intended for the purpose of avoiding subsidiary disputes between the parties
to the contract as to whether the notice was given or received as it provides for
a mode of service and receipt of the required notice which can be
corroborated from an independent and official source.
Intention of the Cl au se
This clause has two sub-clauses.5 Sub-clause 36.1 has three paragraphs
while sub-clause 36.2 has five paragraphs.
The first paragraph in the first sub-clause, Clause 36. l (I), provides
that the law of Singapore is the law governing this Contract. 6 This means
that Singapore law is the chosen law for both the construction contract
and the arbitration contract which is in the form of Clause 34. 7 It goes on
to provide that the law governing the arbitration is also Singapore law.
Although Clause 36. I (I) provides that the law governing the Contract is
the law of Singapore, Clause 36. I (2) provides that the rights conferred on
a third party under the Contracts (Rights of Third Parties) Act are
expressly excluded8 while there is an express provision in Claus 36.1 (3)
to say that the Building and Construction Industry Security of Payment
Act 2004 applies to the Contract. le is also to be noted that the 2004
edition deleted the provision in the then Clause 36.1 ( 1) of the 1999
edition which excludes the application of the United Nations Convention
on Contracts for the International Sale of Goods. This would mean that in
this edition, the Sale of Goods (United Nations Convention) Act
(Cap 283A) would apply if it is applicable.9 However, a building and
construction contract would usually not be a sale of goods contract.
Although Clause 36.1 (I) provides that the law governing an arbitration
that is commenced under the Contract to be the laws of Singapore, it is
4
5
( 1980-1981 l SLR 180; (1981) 17 BLR 21 at 37 and 38.

Clause 36. I was amended in the 2004 editton to contain two paragraphs, (I) and (2).
Paragraph (3) was added in the 2005 edition. Clause 36.2 was not amended and
remained with five paragraphs. {I), (2). (3). (4) and (5).
See cl 36.2. For definition of Contract, see cl l.l(d).
See cl 36.1( I).
See s 2(2) of the Contracis (Rights of Third Parties) Act which provide~ for the
exclusion.
See s 4 of the Act which provides that: 'lt]he provisions of the Convention shall
prevail over any other law in force in Singapore to the extent of any inconsistency.
256
only in Clause 34.2 that the reader is told that the applicable ar?itrat~on
legislation is the Arbitration Act or any re-enactment or mod1ficat1on
thereof. This will mean that even if the arbitration can be said to be an
international arbitration as classified by section 5 of the International
Arbitration Act, parties are bound by the Arbitration Act because of the
parties' opting out of the International Arbitration Act pursuant to
section 5 of the International Arbitration Act. It also means that the
parties have chosen Singapore as the 'place of arbitration' also known as
the 'juridical seat of arbitration' by section 2 of the Arbitration Act.
The second sub-clause, 36.2, which provides for Notices used in the
Contract, has five paragraphs. Two addresses are identified, namely, the
Service Address of the Contractor for use in Clause 36.2(3), (4) and (5)
and 'such address fof the Employer] as the Superintending Officer shall
in writing notify the Contractor' for use in Claus~ 36.2(4) only. "f!le
Service Address is given in the Fom1 of Tender m accordance with
Clause 36.2 and changes must be made in accordance with
Clause 36.2(2). It must be an address in Singapore where the service of
documents is possible as provided by Clause 36.2( 1).
Whereas Clause 36.2(3) is a general provision for service of
certificates, notices or instruction to be given to the Contractor by the
Employer or the Superintending Officer (SO) by post, cable, telex ~nd
facsimile transmission to or left at the Service address, Clause 36.2(4) is a
specific provision for use under Clauses 3 1 (T~rmin~tion by . the
Employer) and 34 (Settlement of Disputes) by pre-paid registered mat! or
hand delivery to the Contractor's Service address or the Employer's
address as the case may be.
Clause 36.2(3) must be read with Clause 11.2( 1) where it is provided
that any instructions given to the Contractor's Representative pursuant to
Clause 11.2( l) is deemed to have been given to the Contractor.
On the other hand, Clause 36.2(4) must be read with:
Clause 31.l ( 1) where the SO may issue a Termination Certificate to
the Employer with a copy to the Contractor;
(b) Clause 31. J (2) where the Employer may give to the Contractor a
written notice of termination of the employment of the Contractor;
(c) Clause 31.2(3) where the SO is required to certify the Employer's
Cost;
(d) Clause 31.3 where the SO is to certify as prescribed;
(e) Clause 31.4( l) where the Employer may give the Contractor a
written Notice of termination;
(f) Clause 31.4(2) where the SO must certify payment to the Contractor
as prescribed;
(g) Clause 34.l(l) where the Employer or the Contractor writes to the
SO for his decision;
(h) Clause 34. l (2) where the SO must give notice of his decision; and
(i) Clause 34.2(1 )(a) and (b) where the Employer or the Contractor
may give a Notice of Intention to Arbitrate.
(a)
257
Clause 36 -
The Service Address is also the address designated for the service of any
originating process by paragraph 5. So far, the provisions have been
consistent. However. this provision is for the service of any originating
process by the Employer or the SO on the Contractor and not vice versa.
What appears to be inconsistent is the provision found in
Clause 36. 1(3) where the certificates, notices or instructions to be given
to the Contractor by the Employer or the SO are also required to be sent
to the Service Address but by way of post, cable, telex or facsimile or to
be le ft at the said address. Whilst a postal address would be suitable for
service by post, cable and the physical leaving of the documents, telex
a nd facsimile machines have their own service address which is not the
same as the postal address. This is supported by the fact that in
paragraph 6 of the Form of Tender, the tenderer is required to give not
only the Service Address but the respective numbers of the tenderer's
telephone. cable/telex and facsimile.
As the Service Address plays an important role in this Contract, the
failure to insert the postal address in paragraph 6 of the Form of Tender
would mean that the Employer and the SO would have no means of
effective communication with the Contractor. One possible solution
would be to provide a default address to be used in this circumstance.
Furthe r, there is also no mention of communication by the now widely
accepted electronic mail (e-mail) communication mode. This would
mean that communication by e-mail in respect of the ide ntified
documents would not be effective.
Contractor
Contractor's obligations and liability

The Contractor's obligations under the contract are governed by the law
of Singapore. 10 This means that the Singapore common law would be
used to interpret the meaning of express terms and whether implied terms
exist. However, the Contractor would not be exposed to any liability to a
third party as may be expressly provided by the Contract<; (Rights of
Third Parties) Act as it is excluded from application. 11 It is the
Contractor's 12 obligation to provide in his Form ofTender 11 an address for
the service of documents that is known as the Service Address. 14 He must
give 14 days notice to the S0 15 before any change in the Service
Address. 16
I0
11
12
13
14
15
16
See cl 36. )( I l
See cl 36. I(2).
For definuion of Contraccor. see cl I. I(I).
For definition of Tender, see cl I. I(ad).
See cl 36.2( I). See also para 6 of the Form of Tender.
For definition of Superintending Officer. see cl l.l(ab).
See cl 36.2(2)
258
Go~eming
Law and Notices
Where the Contractor needs to send a notice under Clause 31

(Termination) or 34 (Settlement of Disputes) to the SO or the Employer, 17
he must do so by pre-paid registered mail or hand delivery to such
address as the SO shall in writing notify the Contractor. 18
Further, the Contractor's obligations in the resolution of any dispute or
difference between the parties by way of arbitration are governed by the
laws of Singapore. 19
Similarly, the Contractor's rights and remedies under the contract are
governed by the laws of Singapore and. in particul ar, the Building and
Construction Industry Security of Payment Act 2004. 20 Also in the same
way, the Contractor's rights and remedies in the resolution of any dispute
or difference between the parties by way of arbitration are governed by
the law of Singapore. 21 The Contractor is entitled to any rights and
remedies provided by the Contract and under common law if those under
the common law have not been expressly and clearly excluded.
Employer
Employer's obligations and liability

Like the Contractor. the Employer's obligations and Liability under the
Contract and in the resolution of any dispute or difference between the
parties by way of arbitration are governed by the law of Singapore. 22 Like
the Contractor, the Employer is also not exposed to liability that may
arise from the Contracts (Rights of Third Parties) Act as it is excl uded
from application.23
The Employer is obliged to send to the Contractor, by post, cable, telex
or facsimile transmission to or left at the Service Address, all notices or
instructions to be given to the Contractor by the Employer. 24
Where the Employer needs to send a notice under Clause 31
(Termination) or 34 (Settlement of Disputes) to the Contractor, he must
do so by pre-paid registered mail or hand delivery to the Service
Address.25
17
18
19
20
21
22
23
24
25
For definition of Employer, see cl I.I (m).

See cl 36.2(4)(b).
See cl 36. 1.
See cl 36.1(3).
See cl 36.1.
See cl 36. 1.
See cl 36.1(2).
See cl 36.2(3).
See cl 36.2(4)(a).
259
Public Sector Standard Co11dirio11s of Co111ract for Co11srmctio11 Works 2005
Clause 36 - Go1emi11g urn and Notices
Where the Employer needs to serve any originating process on the

Contractor. he is only obliged to post to or leave the same at the Service
Address although it is expressly provided that this method of service does
not prejudice any other method of service that is authorised by law. 26
invoke the provisions of this Act to take action against the Contractor nor
Employer. 3~

Similarly, the Employer's rights and remedies under the Contract and in
the resolution of any dispute or difference between the parties by way of
arbitration are governed by the law of Singapore.27
Role of the SO
The SO must take note of the Contractor's Service Address from his
Form of Tender which is used for the purpose of servi ng documents
under the Contract. 28 He must monitor any change in the Contractor's
Service Address.29 If the SO needs to send any certificates, notices or
instructions to the Contractor, he must do so by sending the same by post,
cable, telex or facsimile transmission to or left at the Service Address. 3
Where the SO needs to send a certificate or a notice under Clause 3 l
(Termination) or 34 (Settlement of Disputes) to the Employer and the
Contractor. he must do so by pre-paid registered mail or hand delivery to:
( 1)
(2)
Cross References
The clauses expressly referred to in this clause are Clauses 31

(Termination by the Employer), 35 34 (Settlement of Disputes)36 and
36.2(4) (Notices).37
Further, Clause 36. l ( 1) must be read with Clause 34.2 in order to find
out that the applicable arbitration legislation is the Arbitration Act.
Besides C lause 36.1 (3), the Building and Construction Industry
Security of Payment Act 2004 is also mentioned in Clauses 32.l(l),
32.2(1), 32.2(2), 32.4(3), 32.S(l)(a), 32.5( 1)(b), 32.5(2)(a), 32.5(2)(b)
and 34.5(1).
The Service Address mentioned in Clause 36.2 may be found in
paragraph 6 of the Form of Tender.
in the case of the Employer, such address as the SO shaJt in writing

inform the Contractor; 31 or
in the case of the Contractor, the Service Address. 32
Whe re the SO needs to serve any originating process on the Contractor,

he is only obliged to post Lo or leave the same at the Service Address
although it is expressly provided that this method of service does not
prejudice any other method of service that is authorised by Jaw.n
Third Parties
It is expressly provided that the Contracts (Rights of Third Parties) Act is
excluded from application and therefore, no third party would be able to
26
27
28
29
30
31
32
33
See cl 36.2(5).
Sec cl 36. I.
See cl 36.2( I).
See cl 36.2(2).
See cl 36.2(3).
Sec cl 36.2(4)(b).
See cl 36.2(4)(a).
See cl 36.2(5).
34
35
36
37
260
See cl 36.1 (2).

See cl 36.2(4).
See cl 36.2(4)
See cl 36.2(3).
26 1
Option M odules
Clause I. I(r) defines an 'Option Module as an Option Module appearing

at the end of the Conditions. To incorporate an Option Module into the
Conditions, it must be indicated in the Appendix as provided by
Clause I. l(c). There are fo ur Option Modules, namely, Option Module A
- Bills of Quantities; Option Module B - Unused Materials or Goods Not
Delivered to Site; Option Module C - Fluctuations; and Option
Module D - Nominated Subcontractors. These four option modules have
been allowed as extensions of the basic or core conditions, as part of the
intention to make the new form readily adaptable to diverse project
situations.
In PSSCOC 2005, amendments are found in the Option Modules A, C
and D. These amendments were made to reflect the amendments made in
the Standard Conditions which were required in order to be compliant
with the Building and Construction Industry Security of Payment Act
2004.
O ptio n Module A - Bills of Q uantities

As the conditions of contract were drafted on the basis of a lump sum
contract based on Drawings and Specifications, one of the four option
modules (Option Module A) caters specifically to contracts based on
Bills of Quantities. There are three clauses in this Option Module A.
' Bills of Quantities' 1 (BQ) refers to the priced Bills of Quantities
included in the Contract subject to any modification and additions. This
term is also found in paragraph 1 of the Form of Tender and article 3(6)
of the Agreement.
BQ quantities and descriptions are stated as estimated and are not to
limit or qualify the Contractor's obligations to complete the Works in
accordance with the Contract Valuation of Works measured as described
in the BQ is to be at the rates in the BQ. Where quantities differ between
the BQ items and the actual executed work. or where work actually
executed is materially different from that described in the BQ, the
for definition of Bills of Quantities, see cl A 1.0 on p A I.
263
Public Sector Standard Conditions of Comract for Co11stn1ctio11 Works 2005
difference in quantity or description is to be treated by the Superintending

Officer (SO) as a variation and dealt with under Clause 19. l (a), (b) or (c).
Valuation of this variation will then follow either Clause 20.1 (a) or
20. l(b) which utilises the BQ rates or rates analogous thereto
respectively.2
For BQ quantities that are indicated as provisional, they are to be remeasured upon completion of the Works.3
The method of measurement specified in the Preambles to the BQ shall
be the basis for measurement of the Works unless otherwise stated, with
the exception where otherwise specifically described or prescribed in the
Contract. 4
Option Modules
(i)
(j)
enforceable if the SO is satisfied that the materials and goods have

not been delivered to the Site;
any movement from the said premises or failure to deliver the
materials or goods for which payment has been made by the
Employer without reasonable cause or having an intention to
deceive or defraud the Employer will result in such amounts being
recoverable from the Contractor: and
property in and ownership of such materials and goods for which
payment has been made passes to the Employer.
Option Module C - Fluctuations

Option Module B - Unused Materials or Goods Not Delivered
to Site
There is only one clause in this Option Module B. The value of unused
goods or materials not delivered to Site, if claimed by the Contractor, may
at the discretion of the SO be included in the amount of payment certified
by him under Clause 32.2. This must however meet the ten requirements
set out under the proviso in Clause B 1.0:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
2
3
4
invoices and receipts of payment are to be submined with the

Payment Claims (this term replaces the old term of Monthly
Statements in the PSSCOC 2005 edition) required under
Clause 32. l;
the materials or goods are intended for inclusion in the Permanent
Works;
nothing is left to be done to such materials and goods up to the point
of their incorporation in the Works;
the materials and goods must be in Singapore and either set apart at
the place of manufacture or assembly, or suitably stored, visibly
marked or identified and properly protected from loss and damage;
the progress of the Contract is such that the SO is satisfied that they
cannot be fully and properly incorporated into the Works;
the SO's satisfaction that there is inadequate storage space at the
Site or if brought to the Site they cannot be adequately protected
against weather or other casualties and hazards;
if after payment by the Employer they become defective due to
improper storage or protection, the SO has authority to omit or
reduce the value of such items in any interim certificate;
the furnishing of an on-demand bond by the Contractor to the
Employer on or before submitting his claim under Clause 32. l , is
See cl A2.0( I).
See cl A2.0(2).
See cl A3.0.
264
For materials specified in the Schedule of Material Prices intended to be

covered by fluctuations, this option module sets out the items to be
observed. There are four clauses in this Option Module C.
The Contract Sum is adjustable upwards or downwards to account for
any rise or fall respectively in the price of materials so specified.
Differences between the material prices ruling at the date of delivery and
the stipulated Base Date prices specified in the Specification or other
Contract Documents must be notified to the SO by the Contractor. If
sufficiently substantiated, the SO wi ll ascertain the amount to which the
Contractor is entitled and notify the Contractor accordingly. Material
prices published by the Construction Industry Development Board
(CIDB) will be the basis for any fluctuation claims under this Clause. 5
The SO's ascertainment of the amount of the difference will be
effected by inclusion in the Contractor's Payment Claim (this term
replaces the old term of monthly stateme nt in the PSSCOC 2005 edition)
made pursuant to Clause 32. 1(e) and the SO's certificate under
Clause 32.6
Materials delivered after the Time for Completion or any extension
thereof whichever is the later will not entitle the Contractor to any further
upward adjustment in respect of prices. 7
The option will also apply to materials specified in the Schedule of
Material Prices purchased by any subcontractors, but not to Nominated
Subcontractors unless expressly provided for in their sub-contracts. 8
Option Module D - Nominated Subcontractors
Where it is intended that the execution or supply of plant materials. goods

or work designated as 'Prime Cost' or pc items is to be instructed by
5
6
7
See cl C2.0.
See cl C3.0.
See cl C4.0.
See cl C 1.0.
265
Public Sec1or Standard Condilions of Coll/racr for Co11srmc1io11 Works 2005
Oplion Modules
1e SO in writing to be undertaken by a nominated subcontractor,9 this

ption Module 0 will be utilised. All Prime Cost or PC items so
;:signated are co be reserved for execution or supply by a person to be
ominated or appointed as instructed by the SO, and shall not be
therwise ordered by the Contractor without the written consent of the
0. 10 This Option Module has 11 clauses.
The payment procedures governing such nominated subcontractor's
1ork are set out in Clauses 03 to 05 . Direct payment by the Employer to
ie subcontractor is allowed in instances when amounts included in
revious certificates have not been paid or discharged by the Contractor.
'he amounts so paid by the Employer can be deducted by way of set-offs
rom any sums due or to become due from the Employer to the
:ontractor. 11
Where the subcontractor is nominated in the documents provided by
he Employer as the basis of the Contractor's Tender, the Contractor is not
ntitled to raise any objections regarding this nomination. Where this is
1ot the case, the SO is required to provide the Contractor with a list of
ubcontractors or notify him of the appropriate CTDB financial category
egistered contractors selected for which the Contractor can raise
>bjections subject to Clause 08. Such objection must be notified by the
:::ontractor to the SO within 14 days and be supported by any document<>
>r information that he may have. 12
Subject to Clause 08, the grounds for objection include the nominated
;ubcontractor's inadequate financial standing, solvency or technical
;ompetence, or when he declines to enter into a sub-contract with the
:ontractor. 13
Notwithstanding any reasonable objections raised under Clause 06.
the SO may still require the Contractor to enter into a sub-contract with
the Nominated Subcontractor. In such an instance however, the Employer
has to indemnify the Contractor against any loss incurred by him, such
loss being calculated in accordance with Clause 22 provided it arises as a
direct result of a matter or matters reasonably objected to by the
Contractor. The SO can also, where necessary, grant the Contractor an
extension of time. 14
Sub-contracts entered into by the Contractor with the nominated
subcontractor cannot be determined or assigned by the Contractor unless
agreed to in writing by the Employer. If a determination is agreed to by
the Employer, he shall, as soon as reasonably practicable, either nominate
a replacement subcontraccor or direct the Contractor to complete the

work or supply in question. 15
Subject to Clause 08, if a nominated sub-contract is determined or
assigned, the Employer is not bound to pay the Contractor any greater
sums than would have been payable if determination or assignment had
not occurred. 16
Full responsibility is carried by the Contractor for all nominated
subcontractors including any design work performed by them and for any
default or breach of contract on any nominated subcontractor's part, in
the same way that he is respon~ible for his own plant, materials. goods or
work, or for his other subcontractors selected and engaged by himself. In
no circumstances will the Employer be liable to the Contractor for default
of any nominated subcontractor. 17
9
10
11
12
13
14
For definition of Nominated Subcontractor, see cl DI on p 0 I.

See cl 02.
See cl 05.
See cl 06.
See cl 07(a)and (b).
See cl 08.
266
15 Sec cl 09.
16 See cl 010.
17 See cl DI l.
267
Supplement
The supplement to the standard conditions of contract comprises the

Appendix, 1 Form of Tender, Agreement and Performance Guarantee.
The Appendix is rightly an appendix to the Conditions. 2 The details
required must be accordingly filled.
The Form of Tender is the offer submitted by each tenderer who wants
to be considered for the contract tendered for.
The Agreement is the written document which the parties to the
contract would put their signatures and common seal where applicable to
record the formation of a contract between the parties. This Agreement
would replace the contract formed pursuant to paragraph 4 found in the
Form of Tender which prescribes the Tender3 and written acceptance as
forming a binding Contract between the parties.
The Performance Guarantee is used in consideration of the Employer"
not insisting on the Contractor paying an amount as a security deposit
required under the Contract.
Appendix
The 'Appendix' refers to the appendix to the Conditions. This is a twopage collection of various items for which the Employer or the
Superintending Officer (S0)5 inserts or specifies where appropriate, an
entry pursuant to the requirements of various provisions. If the blank
space for an item is not fi!Jed. the consequences depend on whether it is
optional for the filling of the blank space in which case it would be taken
as the item is not applicable as in Item I (Option Modules)6 or whether
there is a default provision in which case the default provision applies as
in Item 7 (Defects Liability Period) 7 where the default period is 12
1
2
3
4
5
6
7
For definition of Appendix, see cl I. I (a).

For definition of Conditions. see cl l.l(c).
Fordefinuion of Tender, see cl 1 l(ad).
For definition of Employer. see cl I l(m).
for defimtion of Superintendmg Officer, see cl 1. 1Cab).
For delinuion of Option Module, ee cl I l(r).
For defimtion of Defec1s Liability Period, see cl I l(k).
269
Public Sector Standard Co11ditio11s of Co111ract for Co11stmc1io11 Works 2005
Suppleme111
months or whether the operation of the clause would be affected if the

blank space is not tilled as in Item 6 (Liquidated Damages).
A brief account of the 1 I items in the Appendix is as follows:
(I)
Option Modules [Clause 1.l(c)]

According to Clause l. l (c), an Option Module becomes part of the
'Conditions only if specified in the Appendix. If any one of the
four Option Modules from A to D applies to the Contract 8 in
question, they should be specified in the Appendix. It appears to be
optional to fill the blank space.
(2)
Employer [Clause 1.l(m)]

The 'Employer' is the government or statutory body that is specified
in the Appendix. The name of the body should be entered here. It
should be the same name as appears in the Agreement. This blank
space ought to be filled but even if this space is not tilled, the name
of the body would still be fo und in the Agreement. On the other
hand. it would be embarrassing if the name in this blank space is
inconsistent with that found in the Agreement.
(3)
Limitations on the Authority of the Superintending Officer

[Clause 2.1]
According to Clause 2. 1( I), the authority of the 'Superintending
Officer' is that which is stated in or necessarily implied from the
Contract, and any limitations on this authority should be set out in
the Appendix. Further, pursuant to Clause 2.1 (2), if it is intended to
empower the SO with the authority to relieve the Contractor of any
of hb obligations under the Contract, this may be stated in the
Contract. Presumably this requirement would be satisfied if this
inte ntion is set out in the Appendix. If the blank space is not filled, it
appears that there would not be any limitation to the SO's authority
as stated in or necessarily to be implied from the Contract.
(4)
(5)
Security Deposit [Clause 4.5(1)]

In accordance with Clause 4.5( I), the amount of security for the due
performance of and observance by the Contractor of his obligations
under the Contract is to be specified in the Appendix. If the blank
space is not ti lled. one possible construction would be that the
Contractor is not required to deposit any amount with the Employer
as security.
Time for Completion [Clause 14.1]
The 'Time for Completion defined in Clause I.I (af) and referred to
in Clause 14.1 is that which is stated in either The Lener of
Acceptance or The Appendix, as the case may be. In the event that
no such time is specified, the implied requirement is performance
For definition of Contract, see cl I. l(d).
270
~i~in a reasonable time. This may also affect the operation of the
hqu1dated damages clause since there would be no obligation on the
part of the Contractor to complete by an identifiable completion
date at the outset.
Where there are no phases or parts to the Works 9 the time
inserted will be that for the whole of the Works. Whe;e there are
phases ?r parts. the 1:ime for Completion for each of these phases or
parts will have to be inserted individually in the Appendix.
(6)
Liquidated Damages [Clause 16.1]

The rate or rates of liquidated damages referred to in Clause 16.1 ( L)
are to be stated in the Appendix. Similarly, if there are phases or
parts of the Works for which separate rates of liquidated damages
apply, ~hese should also be spelt out in the Appendix. 10 If the blank
space is not filled, one possible construction would be that the
~echanism for the imposition of liquidated damages would become
inoperable. However, by Clause 16.3, the Employer's right to
recover damages under the common law would be preserved.
(7)
Defects Liability Period (12 months if none stated) (Clause 18.1]

The 'Defects Liability Period' is that which is set out in the
Appendix. Where no period is stated here, the default is 12 months.
(8)
Limitations on Extent of Liability for Any One Accident

[Clause 27.l(l)(b)]
Where the insurances that are specifically required to be maintained
by the Contractor relating to his liability for injury or damage to
property real or personal (other than the Works) as prescribed under
<;Ja~se. 27. I (1 )(b ), such insurance may be subject to such
hmJtat1ons as to the extent of liability for any one accident as may
be set out the Appendix. Accordingly, if the blank space is not
filled, the only limitations which the Contractor is bound to follow
are those set out in the other part of the Contract other than the
Appendix.
(9)
Percentage of Professional Fees [Clause 28.1(1 )]

The value to which the Contractor mu~t insure in the joint names of
the Employer and himself shall be not less than the Contract Sum
shown in the Letter of Acceptance (plus the percentage stated in the
Appendix for professional fees). Should the blank space be not
filled, one possible construction is that the cover for that item is not
required. However, should it be a mistake, one possible solution is
for the SO to correct the mistake under Clause 28. J(2) where the
tenns of the said insurance are being approved by him provided that
9
For definition of Works. see cl I. I (ag).
10 See cl 16. 1(2).
27 1
S11pplemell1
P11b/ic Sector Standard Conditions of Conrracr for Constmction Works 2005
the blank space is not interpreted by the courts as effectively

removing his power to do so.
( 10) Period for Honouring Certificate (21 days if none stated)

[Clause 32.6]
The period for honouring payment certificates shall be 21 days from
tenderer receives a written acceptance from the addressee or his aoent as

"'
provided in paragraph 4 of the Form of Tender.
As it is a standard Form of Tender, there are certain standard details
required to be inserted, namely:
(I)
the dates of certificates unless another time period is stipulated here

in the Appendix.
(2)
( 11) Rate of Interest Upon Unpaid Sums [Clause 32.6]

Failure by the Employer to make payment within the times
stipulated would entitle the Contractor to payment of interest at the
rate stated in the Appendix. If none is stated. the rate shall be 5% a
year.
Three Items have been removed, one in the 2004 edition and two in the
2005 edition.
The Item removed in the 2004 edition is the one relating to the
Nomination of Arbitrator [Clause 34.2]. It provided that where there is
failure by the parties to agree on an arbitrator, the default appointment is
made by the Minister for the Ministry concerned as set out in the
Appendix.
The two items removed in the 2005 edition were prompted by the need
to be compliant with the Building and Construction Industry Security of
Payment Act 2004. The first Item removed in the 2005 edition was in
respect of the Listed Materials and Percentage of Invoice Value
[Clause 32. l(c)], where the percentage of the invoice value of listed
materials, plant and goods delivered by the Contractor on the Site for
incorporation in the Permanent Works but not yet incorporated is left to
be filled in the Appendix in respect of monthly payments made in the
Contractor's statements.
The second Item is in inspect of the Minimum Amount for Interim
Payment [Clause 32.2(2)] where there is a restriction in the issuance of
any certificate under Clause 32.2( 1) for the payment of amounts of
monthly payments due to the Contractor if the amounts due to the
Contractor is not equal or exceeding Minimum Amount for Interim
Payment is stated in the Appendix.
(3)
(4)
(5)
(6)
the details of the tenderer are to be fi lied in paragraph 5 and the

name of the addressee is to be filled at the beginning of the form
after the Name of the Contract;
details of the Tender Document as regards the Particular Conditions
to be filled in paragraph l(a)(ii). the Addenda numbers at
paragraph l (a)(e);
the tender sum in both words and figures including the currency to
be filled in paragraph l:
the period in which the tender remains open for acceptance to be
filled in paragraph 3;
the date, signature of the tenderer's authorised representative as well
as the name, address and then occupation of the witness to the
execution of the Form of Tender to be filled in paragraph 5; and
the Service Address as required by Clause 36.2( I) of the PSSCOC
2005 as well as the numbers of the tenderer's telephone, cable/telex
and facsimile machine.
There are two important implications attributable to this Form of Tender.

First, it binds the tenderer to his tender sum on offer in respect of the
Works as represented by the Tender Documents comprising from (a) to
(e):
(a)
the Conditions of Contract comprising;

(i) the Standard Conditions;
(ii) the Particular Conditions; and
(iii) the Appendix;
(b) the Specifications;

(c) the Drawings;
(d) the Bills of Quantities/Schedule of Rates*; and
(e) the Addenda Nos,
(*Delete as appropriate)
The Form of Tender is an offer by the tenderer which is given to the

government or the statutory board stated as the addressee in the Form of
Tender for them to consider as provided by paragraph 3 of the Form of
Tender.
There are six paragraphs which set out the relationship between the
tenderer and the addressee during the period of tendering as set out in
paragraph 3 of the Form of Tender as well as in the situation where the
for the duration as set out in paragraph 3 bearing in mind that their tender
may not be accepted even if it is the lowest as mentioned by paragraph 4.
Indeed paragraph 4 also provides that the whole tendering exercise may
be a futile one in that the addressee is not bound to accept any tender at
all.
Second, paragraph 4 binds the tenderer and the addressee to a contract
based on the Contractor's Form of Tender and the addressee's wrillen
acceptance. In particular, paragraph 2 provides for the commencement of
the Works as well as its completion.
272
273
form of Tender
Supplemem
Public Sector Standard Co11di1io11s of Co111rac1 for Co11structio11 Works 2005
Agreement
It must be recalled that paragraph 4 of the Form of Tender provided that a

formal Agreement would replace the contract evidenced by a
combination of the Contractor's Fonn of Tender and the addressee's
written acceptance. However, this Agreement incorporates these two
documents plus four other documents as set out in article 3 of the
Agreement.
Hence, the Agreement comprises:
(a)
(b)
{c)
the Employer's Letter of Acceptance;

the said Tender;
the Conditions of Contract comprising:
(i) the Standard Conditions;
(ii) the Particular Conditions; and
(iii) the Appendix;
documents will be read and construed as a whole with no special priority

other than that accorded by law or expressly provided in the Contract
documents and that the contra proferentum rule is not applicable to the
interpretation of the Agreement. it should be noted that Clause 3.1 of the
Conditions of Contract provides that in the event of any conflict or
inconsistency between the Conditions and the other documents forming
the Contract. the Conditions shall be given precedence and within the
Conditions. the Particular Conditions. 1f any, shall be given precedence.
The third part comprises articles 4 and 5 which set out the parties'
respective consideration. They appear to be the two sides of the same
coin.
Performance Guarantee
As in most written contracts requiring execution, the Agreement begins

with a recital setting out the parties to the Agreement, the date of the
Agreement and the scope of the Works. This is followed by the body of
the Agreement which comprises five articles. The Agreement ends with
the provision for the signature of those named and authorised to sign on
behalf of the parties together with the fixing of the common seal where
applicable. The names and addresses of the respective witnesses are also
required.
ln the body of the Agreement, there appears to be three parts. The first
part comprising articles 1 and 2 appears to be an attempt to ensure that
any inconsistency of definitions and meanings of words and expressions
as between the Agreement and the Conditions of Contract is avoided.
However, there appears to be inconsistency as between the definition
given to 'Agreement' in the Agreement itself which appears to
encompass all the contract documents as compared to the status of the
Agreement as being only one of the documents forming the contract' as
defined in Clause I. l(d) in the Conditions of Contract where it is
submitted that this inconsistency would not be fatal to the existence of the
contract. Further, the definition given to 'Contract' in Clause I. I (d) is to
include the fact that it will be a fixed price Contract subject only to
adjustments or measurements (if any) and additional payments that are
expressly provided for in the Conditions.
The second part comprises article 3 which defines the documents
which form part of the contract. In addition, it prescribes how the
documents should be interpreted. Whereas article 3 provides that all the
It is provided by Clause 4.5(2) of the PSSCOC 2005 that a guarantee

from a bank or insurer approved by the Employer in the prescribed form
may be offered by the Contractor in order to avoid having to arrange for a
cash deposit as required by Clause 4.5( I) of the PSSCOC 2005. It is
commonly referred to as a performance bond, this is the guarantee for
due performance of the Contract. The Performance Guarantee found in
the document called the Supplement is therefore the said prescribed form.
IL appears to be an unconditional guarantee and does not require proof of
Employer's entitlement or Contractor's failure to execute the Contract or
breach of the Contract.
There are three parts in the Performance Guarantee. The first part is
the recital which sets out the details of the Employer and the Contractor,
the date and nature of their contract and the Contract Sum. Also included
is the percentage of the total value of the Contract Sum which is regarded
as the amount of the Security Deposit required by Clause 4.5(1).
The second part sets out the consideration given by the Employer and
the Guarantor. There are seven paragraphs. The Guaranteed Sum which is
to be filled is found in paragraph I. Paragraph 2 ensures that no
arrangement of any sort, made between the Contractor and the Employer,
without the consent of the Guarantor will have the effect of discharging
or releasing the Guarantor from the Guarantee. In paragraph 3, the
duration of the Guarantor's liability is identified. The effective
commencement date. the initial expiry date and the duration of any
automatic extended period must be filled in. In addition, the period of
extension of cover in the event that the Guarantor exercises his right to
terminate the guarantee in this paragraph should also be filled. For the
purpose of the Employer making a claim or direction to the Guarantor.
the address of the Guarantor's notification office must be inserted in the
blank space. Paragraph 5 appears to be the basis for calling this
performance guarantee an unconditional guarantee since the Guarantor is
obliged to effect payment without a duty to inquire into the reasons,
circumstances or authenticity of the grounds for claim or direction and
shall be entitled to rely upon any written notice thereof received as final
274
275
(d)
(e)
the Specifications;
the Drawings;
(f) the Bills of Quantities/Schedule of Rates*; and
(g) the Addenda Numbers.
(* Delete as appropriate)
Public Sector Standard Conditions of Contract for Coiutruc1io11 Worb 2005
and conclusive'. Paragraph 6 clarifies that the Employer may make more
than one claim on or direction under as long as the aggregate amount
does not exceed the Guaranteed Sum. The last paragraph confirms that
the laws of Singapore are applicable and the jurisdiction of the Singapore
courts to hear the dispute if any.
The third part is the part where the Guarantor must execute the
document by filling in the date, the respective names of the person
authorised to sign on behalf of the Guarantor and the witness and the
signatures of the two.
Index
Adjudicator
role in settlement of dbputes, 250
Administra tion
contractorobligations and liabilities of,
84-85
rights and remedies of, 85
employer's obligations and
liabilities. 85
generally, 83
intention of clause I I , 83-84
superintending officer, role of,
85-86
Agreement
contents of, 274-275
Ap pendix
definition, 12
Arbitrator
roleofprocedure for claims. 158
quality in construcllon. 81
settlement of disputes, 250, 251
time for completion, 107
Architect
agenL employer's. 25
Assignment
198
rights and remedies of. 198
drafting considerations, 7
employer's right and remedies.
198-199
generally, 195-197
intention of clause 30, 197 198
superintending officer. role of, 199
276
Bills of qua ntities

definition, 31
Option Module A, 263-264
Building and Construction
Industry Security of Payment Act
effect of, 9-10
Claimed amount
defi nition, 12- 13, 219
Claims for loss and exp ense
150-151
rights and remedies of, 151-152
liabil ities, 152
generally, 149
intention of clause 22. 149-150
loss and expense, definition, 18
procedure. See PROCEDURE FOR
CLAJMS
Comm encement of \\<Or ks

conlractorobligations and liabilities of,
89-90
employerobligations and liabilities of,
91-92
intention of clause 12, 88-89
superintending officer, role of, 92
Completion
final completion certificate. See
FINAL COMPLETION CERTIFICATE
substantial. See SUBSTANTIAL

COMPLETION
time for. See TIME FOR COMPLETION

277
Index
bult'~
construction equipment.
temporary works, materials
and goods, 163- I64
contract documents, 34
damage to property of employer
or government. 190-191
defects, 129-130
designdrafting considerations. 6
expediting progress of works,
110
fees, 60
general responsibilities, as to,
169-170
generalgenerally, 37-38
list of, 40-42
governing law. 258-259
indemnity provisions, 174-176
insurancepersonal injury. workmen's
compensation and property
damage. for. 180
works, of the, I 84-185
liquidated damages. 116-117
measurement. 146
notices, 60
permanent works designed by
contractor. 55
possession of site, 89-90
programme for the works,
67-68
progress payments and final
account, 223-227
quality in construction, 74-76
recovery by employer. 254
setting out, 63-64
settlement of disputes. 244-245
subcontracting. 198
substantial completion.
123-124
sub-surface and ground
conditions, 49- 50
superintending officer's
instructions, as to. 28
suspension of work. 96
termination by employer,
204-207
time for completion, 103- I04
Conditions
definition. I 3
Construction equipment,
temporary works, materials and
goods
contractorobligations and liabilities of.
163-164
rights and remedies of. 164-165
definition, 15
cmployerobligations and liabilities of,
165
role of, 165-166
generally, 159- 162
superintending officer. role of, 166
temporary works, defin ition, 22
Construction programme. See
PROGRAMME FOR THE WORKS
Contract
definition, 14
Contract documents
contractorobligations and liabilities of, 34
drafting considerations. 5
Liabil ities, 35
generally, 31-32
importance of. 3 I
Contract sum
definition, 14
Contractor
definition, I4
employerobligations and liabi lities of, 43
obligations and liabilities ofadministration, 84-85
assignment. 198
claims for loss and expense,
150-151
claims. procedure for. 155- I 56
commencement of works,
89-90
278
valuation of variations. 142

variations to the works, I 36
rights and remedies ofadministration. 85
assignment, 198
claims for loss and expense.
151-152
claims. procedure for. 156
commencement of works. 9 I
construction equipment.
and goods, 164- I 65
o r government, 19 I
defects, 130
sub-contractors. See
SUBCONTRACTING; SUBCONTRACTORS
Contractor's representatives
definition. 15
Costs
all inclusive pricedrafting considerations, 5
Damage to property
employer or government. ofcontractorobligations and I iabilities of,
190-191
rights and remedies of, I 91
192
rights and remedies of,
192-193
genera)) y, I 89-190
government, role of, 194
intention of clause 29, 190
servant or agent of comractor,
position of, 193-194
sub-contractor, position of,
193-194
superintending officer. role of,
193
insurance for. See JNSLRMICE
(personal injury. workmen~
damage. for)
] JO
fees, 61
final completion certificate, 238
general responsibilities, as to.
170-171
generally, 42-43
governing law, 259
indemnity provisions, I76
insurance of the works. 185
liquidated damages, 117
measurement, 146
notices. 61
possession of site, 9 I
programme for the works. 68
account. 227-230
quality in construction. 76-77
selllement of disputes, 245
subcontracting. 198
substantial completion. 124
conditions, 50
superimcnding officer, duties
delegated by, 28
suspension of work, 96
termination by employer, 207
time for completion, I 04
valuation of variations.
142-143
variations to the works. I 36
role ofsenlement of di~putes. 2.t6-247
termination by employer. 208
Damages
liquidated. See LJQUIDA rED
DAMAGES
Defects
cam.es ofdrafting considerations, 6
common law remedy, 127
contractorobligations and liabilitie~ of,
129-130
right~ and remedies of, 130
definition. 15-16
130
rights and remedies of, 130-13 I
generally. I 27-128
'179
Index
Index

17 1
governing law, 259-260
indemnity provisions, 176
insurancepersonal injury, workmen 's
damage. for, 180
works, of the, 185
liquidated damages, 118
notices, 60
contractor, 56
possession of site, 91 - 92
account. 230-23 1
quality in construction, 78
settlement of disputes, 247-248
substantial completion, 124
conditions, 50
superintending officer's acts
binding on, 28
termi nation by employer, 208
valuation of variations, 143
variations to the works,
136-137
rights and remedies ofassignment, 198-199
claims, procedure for, 157
commencement of works, 92
construction equipment,
and goods. I 65
contractor, as to, 28-29, 43-44
or government, 192- 193
defects, 130- 131
fees, 61
final completion certificate, 238
governing law, 259
indemnity provisions. 176-177
insurancepersonal injury, workmen's
damage. for. 181
works, of the, 185-186
liquidated damages, I 18
measurement. 147

131-132
Defects liabiJity period
definition. 16
Definitions and interpreta tion
basis for interpretation, 12
defined terms, 12-22
generally. 11
headings, 22
intention of clause I, 11-12
joint and several liability, 23
marginal notes, 22
singular and plural , 22
Design
contractor's responsibility fordrafting considerations, 6
contractor. See PERMANENT
WORKS DESIGNED BY CONTRACTOR
Disputes
settlement of. See SEITLEMENT OF
DISPlITES
types of, 11
Drawings
definition, 16
function of, 31-32
Employer
damage to property of. See
DAMAGE TO PROPERTY (employer
or government, of)
defini tion, 16
obligations and liabilities ofadministration, 85
claims fo r loss and expense,
15 1-152
claims. procedure for, 157
commencement of works,
9 1-92
temporary works. materials
and goods, 165
contractor, to. 43
or government, 192
defects, 130
expediting progress of works.
11 1
fees, 60
280
notices, 61
contractor. 56
possession of site. 92
68-69
account, 231-232
quality in construction. 78
recoverygenerally, 253, 254
intention of clause 35,
253-254
seltlement of disputes. 248
subcontracti ng, 198-199
substantial completion , 124
conditions, SO
superi ntending officer, as to.
28-29
termination by employer,
208-209
variations to the works, 137
role ofconstruction equipment.
temporary works, matenals
and goods, 165-166
settlement of disputes. 248-249
termination by employer, 210
termination by. See TERMINATION
contractorobligations and liabilities of. 60

employerobligations and liabilities of. 61
superintending officer, role of.
61-62
Final account. See PROGRESS
PAYMENTS AND FINAL ACCOUNT
Final completion certificate

contractor's rights and remedies.
238
employer's rights and remedies,
238
generally, 237
intention of clause 33. 237
238-239
Final payment claim
definition, 17. 220
Fluctuations
Option Module C, 265
Form of tender
contents of. 272-273
Gener a l responsibilities
169- 170
Iiabilities, 171
generally, 167
171-172
Goods and materials. See also
BY EMPLOYER
E ngineer
agent, employer's, 25
Equipment. See CONSTRl.iCTION
EQUIPMENT, TE.'>fPORARY WORKS.
MATERIALS AND GOODS
Expediting progress of works

contractorobligations and liabiliues of,
110
rights and remedies of, 1 10
liabilities. 111
generally, I 09
intention of clause IS, I09-110
superintending officer, role of, 11 I
Fees
compliance with regulations, 59
CO'o;STRUCTlON EQUIPMENT.
TEMPORARY WORKS, MATERJALS AND
GOODS
unused materials or goods not

delivered to siteOption Module B. 264-265
Governing law
258-259
281
Index

185
rights and remedies of,
185-186
generally, 183
186-187
Joint venture partnership
joint and several liability, 23
Late possession
compensation fordrafting considerations, 6
L iquidated damages
contractorobligations and liabi lities of.
116-117
rights and remedies, 117
employerobligations and liabilities. 118
rights imd remedies, I 18
general rule, I 13-1 15
118-11 9
Marginal notes
role of, 22
Mass Rapid Transit Corporation
standard form contract, 2
Materials and goods. See also

259-260
generally, 255-256
third parties, 260-261
Government property
damage to. See DAMAGE TO
PROPERTY (employer or
government, of)
G round conditions. See SUBSURFACE AND GROUND CONDITIONS
Headings
role of, 22
Housing a nd Development Board
Indemnity provisions
contractorobi igations and liabilities of,
174-176
176
generally. 173
superintending officer, role of. 177
Insurance
personal injury, workmen's
damage, forcontractor's obligations and
liabilities, 180
180
generally. 179
181-182
works. of thecontractorobligations and liabilities of.
184-185
nghts and remedies of. 185
CONSTRUCTION EQUIPMENT,
TEMPORARY WORKS, MATERIALS AND
GOODS

delivered to siteOption Module 8, 264-265
Measurement
146
147
generally, 145
supenntending officer, role of. 147
Measurement meetings
282
Index
Med iator
role in settlement of disputes. 250,
251
Notices
intention of clause 7, 59 60
61-62
Novation
concept of, 195. 197
Option modules
Bill of Quantities, 263-264
defin ition. l 8, 263
fluctuations, 265
generally, 263
nominated sub-contractors,
265-267
delivered to site, 264-265
Payment
all inclusive pricedrafting considerations, 5
progress payments. See PROGRESS
PAYMENTS AND FINAi ACCOUNT
Payment certificate/response
definition, 19, 219
response amountdefinition, 20-21, 219
Payment claim
claimed amountdcfinition, 12 13, 219
definition, 18- 19, 218
final payment claim, definition, 17,
220
submission of, 9, 219
Performance guarantee
Permanent works designed by
contractor
contractor's obligations and
liabilities, 55
employerobligations and liabiliues of, 56
generally, 53
283
permanent works, definition, 19

standards imposed, 53
56-57
Persona l injury
insurance for. See INSURANCE
(personal injury. workmen's
damage. for)
Plant
definition, I 9
Possession of site
89-90
employerobligations of, 91 - 92
financial compensation for late
possessiondrafting considerations, 6
generally, 87-88
Price
all inclusive price clause, 5
Proced ure for claims
arbitrator, role of, 158
155-156
employerobligations and liabilities of.
157
generally, 153
157-158
Programme for the works
67-68
effect of, 65
68-69
Index
Index
generally, 71 - 72
78-81
generally, 65
69-70
Progress payments and final

account
contraclorobligations and liabilities of,
223-227
230-231
rights and remedies of, 23 1-232
final account certificate, definition,
17
generally, 215-217
232-235
Rates
definition, 20
schedule of. 31
Regulations
compliance with, 59
Response amount
definition, 20-21
Setting out
contractor's obligations and
liabilities, 63-64
generally, 63
Settlement of disputes
adjudicator, role of, 250
244-245
role of, 246-247
247-248
role of, 248-249
generally, 241-242
mediator, role of, 250
Singapore International
Arbitration Centre. role of, 251
Singapore Mediation Centre, role
of, 251
249-250
Property
damage lo. See DAMAGE TO
PROPERTY
Provisional sum items

definition. 20
Public Sector Standard Conditions

of Contract
1999 Revision, 8
2004 and 2005 Editions, 8-9
background to, 1
caveat, 9-10
considerations in drafting, 5-7
development of, l
drafti ng, contribution to, 1-2
philosophy behind, 3
pre-existing forms of contract, 2
principles governing, 3-5
rationale behind, 3
standardisation, 2-3
Public Wor ks Department

Site
Quality in construction
definition, 21
possession of. See POSSESSION OF

74-76
employerobligations and liabilities of, 78
SITE
Specifications
definition, 21
function of, 31-32
Standard contract forms

prior to PSSCOC, 2
284
Subcontracting
contractorobligations and liabilities of 2

rights and remedies of, 28 '
definition, 21, 26
delegation of duties, 26, 29
employerobligations and liabilities of, 2
functions of, 25
instructions by, 30
role ofadministration, 85-86
assignment, 199
claims. procedure for, 157- 151
commencement of works, 92
and goods, 166
contractors, 44
damage to property of employe
or government, 193
defects, 131-132
111
fees, 61-62
final completion certificate,
238-239
171-172
generally, 29-30
governing law, 259
indemnity provisions, 177
insurancepersonaJ injury, workmen's
compensation and propert
damage, for, 181-182
works, of the, 186-187
liquidated damages, 118-1 L9
measurement, 147
notices, 6 1-62
contractor, 56-57
possession of site, 92
69-70
account, 232-235
qual ity in construction, 78-81
contractorobligations and liabilities of

198
,
employer's right and remedies,
198-199
generally, 195-197
Sub-contractors
liability ofdamage to property of employer
or government. 193- 194
nominatedOption Module D, 265-267
Substantial completion
123- 124
date of substantial completion,
definition, 15
employerobligations and liabilities of
124
'
generally, 12 1-122
124-125
Sub-surface and ground conditions

49-50
generally, 47
50-51
Superintending officer
agent, employer's, 25-26
authority of. 25-26, 29
contract documents, role as to, 35
285
Index
Index

210-213
Third parties
rights of, 260-261
Time for completion
103-104
definition, 22
delaying events, 105
104
extension of timenotification ofdrafting considerations, 6
generally, 99-101
105-106
Unused materials or goods not
delivered to site
Option Module 8, 264-265
Valuation of variations
142
liabilities, 143
generally, 139-140
Variations to the works
136
136--137
generally. 133- 134
valuation of. See VALUATION OF
setting out, 64
settlement of disputes, 249-250
subcontracting, 199
substantial completion.
124-125
conditions, 50-51
termination by employer.
210-213
time for completion, I 05-106
valuation of variations, 143
variations to the works, 137
Superintending officer's
representative
assistants, role of. 30
definition, 21, 26
role of, 30
Suspension of work
liabilities, 97
generally, 95
Temporary works. See
CONSTRUCCTON EQUIPMENT,
TEMPORARY WORKS, MATERIALS AND
GOODS
Tender
definition, 17, 22
form of, 272-273
letter of acceptance, definition, 17
Termination by contractor
Termination by employer
204-207
role of. 208
208
role of, 210
generally, 201-203
Workmen's compensation
insurance for. See INSL"RANCE
(personal injury, workmen's
damage, for)
Works
commencement of. See
insurance of. See INSl.iRANCE

(works, of the)
contractor. See PERMANENT
WORKS DESIGNED BY CONTRACTOR
quality in. See QUALITY IN

CONSTRUCTION
COMMENCEMENT OF WORKS
suspension of. See SUSPENSION OF
definition. 22
expediting progress. See
WORK
variations LO. See VARIATIONS TO
EXPEDITING PROGRESS OF WORKS
THE WORKS
VARIATIONS
variation clause, 133-134
286
287

PSSCOC For Constn WRK 2005 - A Commentary - Philip Chan

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Philip Chan Chuen Fye

Public Sector Standard

Philip Chan Chuen Fye

Members of the LexisNexis Group worldwide

Foreword to PSSCOC 2005

All right~ reserved No pan of this publication may be reproduced. or transmitted in

Printed in Singapore by Utopia Press.

The publisher. authors. contributors and endorsers of this publication each

It is with great pleasure that I write another foreword to an excellent

Foreword 10 PSSCOC 2005

amendments with references to decisions in other jurisdictions since the

His Honour Humphrey LLoyd QC

Foreword to PSSCOC 1999

My introduction to the Public Sector Standard Conditions of Contract

Foreword 10 PSSCOC 1999

painstakingly attained. As frequently occurs the ideal has to cede place to

Foreword 10 PSSCOC 1999

implementation of the PSSCOC. This work should reach a wider

Foreword to PSSCOC 2005

amendments with references to decisions in other jurisdictions since the

His Honour Humphrey LLoyd QC

Foreword to PSSCOC 1999

My introduction to the Public Sector Standard Conditions of Contract

Preface to PSSCOC 2005

Foreword to the PSSCOC 2005

Introduction to the Public Sector Standard Conditions of Contract

Insurance for Personal Injury, Workmen 's Compensation

Adelphi (Eslales) Ltd v Christie (1984) 269 EG 221 ...................................................... 11

Contracts (Rights of Third Parties) Act

Introduction to the Public Sector Standard

Background and Development of the PSSCOC

Contribution to the Drafting of the PSSCOC

Public Sector Standard Conditions of Contract for Construction Works 2005

Construction Industry Development Board;

difficulties encountered in the local construction industry. For a relatively

The initial draft received valuable feedback from the following

Introduction ta the Public Sector Standard Conditions of Contract ( PSSCOC}

Housing & Development Board:

The final version as published was developed jointly by:

Construction lndustry Development Board;

with advice and input from the Attorney General's Chambers.

Pre-existing Forms of Contract

Public Works Department (PWD)

Philosophy and Rationale

Principles Governing the Development

It is now corporaLised and renamed as PWDCorp.

Para 2, CIDB Explanatory Notes.

lmroduction to rhe Public Sector Standard Co11di11011s of Comract ( PSSCOC)

Public Sector Standard Conditions of Contract for Construction Works 2005

adaptability of the Fonn;

Para 5, C IDB Explanatory Notes.

Contractor. given that he should be more knowledgeable on construction

Some of the items considered by the drafting committee and their

Definitions, Interpretations, etc

Superintending Officer and Superintending Officer's

All Inclusive Price Clause

Sub-surface and Ground Conditions

Para 10, C IDB Explanatory Notes.

P!lblic Sector Standard Conditions of Contract for Co1Lstruc1io11 Works 2005

Contractor's Responsibility for Design

Financial Compensation for Late Possession

Notification for Extension of Time