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Lecture 2
STANDARD FORMS OF
CONSTRUCTION CONTRACTS
Zulhabri Ismail
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Synopsis
This lecture will discuss the following:-
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The Rule of Thumb
All standard forms of contracts [express] must
be read and construed together with
common law principles [implied] and the
statutory provisions.
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Forms of Contracts
Standard forms
Model forms
Modified forms
Ad hoc [because of situation / not planned in
advance]
Bespoke [special made / according to needs
of individual project]
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Procurement
Contract Types based on Method of Contract
Procurement (Harbans Singh, 2004):-
Traditional General Contracts
Management Contracts
Construction Management Contracts
Package Deal / Turnkey Contracts
Build Operate and Transfer [BOT]
Contracts; and
New Type of Contracts [i.e. PFI]
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What is standard forms?
These are in a printed form and published
by an authoritative body of the industry,
which body is recognised by both parties;
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Government / Public Sector
Public Works Department (cont’d)
PWD Form 203P for Nominated Suppliers.
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Government / Public Sector (cont’d)
Construction Industry Development Board
CIDB Form for Building Contracts 2000
Edition.
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Government / Public Sector (cont’d)
CIDB Standard Form of Sub-contract For
Nominated Sub-Contractor [Form CIDB.B
(NSC) / 2002] (To complement the Standard
Form of Contract for Building Works).
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Model Terms of Construction
Contract for Subcontract Work.
Intended to be used as part of a generally ‘stand
alone’ subcontract and not ‘back to back’ to
any one main contract.
The generic drafting style and flexibility mean it
can be used as subcontract terms with any
main contract whether a one-off contract
(bespoke & ad hoc) or published
“standard form” such as the PWD, PAM,
IEM, CIDB, FIDIC or JCT contracts. 14
CIDB Forms
CIDB published its own version of Standard
Forms for building works (main contract and
sub contract). But the question is do we need
another public sector standard form?
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Other Public Sector Forms
Some statutory bodies and public sector related
bodies utilise the PWD Standard Forms with
slight modifications and/or amendments.
Drainage and Irrigation Department
(DID/JPS)
Lembaga Pelabuhan Kelang (Port Klang
Authority)
PETRONAS
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Private Sector
PAM
PAM 2006 (previously 1998) with quantities.
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PAM
Origin
Rather than developing and drafting a new
standard form on its own, PAM in
collaboration with the ISM in 1969 adopted
1963 JCT Standard Form of Building
Contract (Reprinted 1968) with
modifications to be used for private sector
building works through traditional general
contracting contract procurement method 18
comprised:
PAM 1998
Usage
Essentially for
Private sector projects
Building works
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Private Sector
Civil Engineering works
IEM Condition IEM.CE 1/89. Mainly for
Civil Engineering Construction (Second
Reprint 1994).
IEM Condition IEM.CES 1/90. Sub-contract
for use in conjunction with the IEM Condition
(First Reprint 1994).
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Private Sector
M&E works
IEM Condition IEM.ME. For mechanical and
electrical work (First Edition 1994).
Sub contract? [absent]
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IEM Forms
Origin
Due to rigours/harsh and pitfalls of the
JKR/PWD forms and unsuitability of the
PAM forms for engineering and
infrastructure projects, construction
engineering professionals attempted to
employ UK engineering forms i.e. ICE,
IMECHE, IEE, JCT and FIDIC forms with
modifications.
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IEM Forms
Origin (cont’d)
The “modifications” were subject to job specific
and ad hoc basis. Thus, leading to uncertainty,
inconsistency and leading to construction
disputes.
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International Contracts
FIDIC family
JCT Family
IEEE
IMechE
ECC
PPC 2000
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Why standard forms?
According to Nayagam and Pathmavathy (2005),
“Standard Form construction contracts
provide a basic legal framework identifying
the rights, obligations and duties of the
parties, establish the ambit of the powers and
duties of the contract administrator”.
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Why standard forms?
Most construction professionals are familiar
with their operation, limitations and drawback.
Such familiarity leads to administrative and cost
efficiency.
As there is a body of judicial pronouncement
accumulated over the years on standard forms,
there is some certainty in meaning.
Savings in time and costs when standard forms
are used compared to the costs of drawing up
fresh contracts.
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Why standard terms of Contract?
(CICC, 2006)
It becomes more economical as there is no
need to draft new terms of contract every
time a contract is let out.
It provides more certainty when tendering
[equal bargaining power].
Familiarity makes it easier and quicker to be
priced.
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Why standard terms of Contract?
(CICC, 2006)
It creates the possibility of a more balanced
allocation of risk between the contracting
parties.
There is a higher chance of avoiding
unwarranted disputes in court or arbitration.
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Purpose (Robinson & Lavers)
To provide the basic legal framework
evidencing the legal relationship between the
parties i.e. identifying the rights, obligation
and duties.
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Tujuan Borang Perjanjian Standard
(Nor Ainah, 2001)
Mengandungi syarat-syarat perjanjian.
Terperinci hak dan obligasi.
Rangka asas perundangan, komersial dan
mekanisma pengurusan projek
berlatarbelakang amalan dan standard industri
binaan.
Asas rundingan.
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Advantages
The forms have been arrived at through a process of
negotiation between the various sectors of the
industry and as a result act as a compromise
between the various powerful interest group.
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Advantages (cont’d)
Most such forms are time tested and
practitioners are aware of their
workability, limitations and drawbacks.
This familiarity leads to administrative and
cost efficiency and minimises possible
claims and disputes.
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Conclusion
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Thank You
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