ARTICLES CONSTRUCTION CONTRACT & MANAGEMENT ISSUES

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1 CONSTRUCTION CONTRACT & MANAGEMENT ISSUES In this second quarter issue of Master Builders Journal for 2014, BK Burns & Ong Sdn Bhd, a subsidiary of BK Asia Pacific, an international construction consultancy group providing project, commercial and contractual management services joins with Entrusty Group, a multi-disciplinary group, collectively named BK Entrusty, to present a new series of construction contract and management articles in areas related to project, commercial, contracts, risks, quality, value and the like This article on is a three parts article Part Three which is the final part, is published in this quarter INTRODUCTION In the Malaysian construction industry it is a common practice that many contractors sub-let their works to subcontractors on paywhen-paid or pay-if-paid basis This means that unless the Contractor receives payment from the Employer, the Sub- Contractor will not receive its corresponding payment Unfortunately, sub-contractors are often burdened and suffered financially as a consequence of such practice, particularly when non-payment by the Employer to the Contractor bears no relation to the Sub-Contractor s payment entitlement for its sub-contract works In many cases, when the Contractor is related to the Employer directly or indirectly, such payment provision is often introduced into the sub-contracts, with an ulterior motive or ill-intent of delaying or simply not paying the subcontractors Unfortunately, the courts which have been deciding on such payment provisions on payment disputes by the contracting parties have so far ruled and decided in favour and have enforced them, literally In this three parts Article, BK Entrusty aims to provide readers with an appreciation of the past and present payment practices and provisions of conditional payment in Malaysia in the First Part, review the payment provisions and their implementation and practices in countries like United Kingdom, Australia and Singapore, which have their own statutory adjudication act in the Second Part and introduce Construction Industry Payment and Adjudication Act ( CIPAA ) on its pertinent features and provisions, including the issues, challenges and implications in the Third and Final Part The following are the main sub-headings of this three parts Article: Part One Introduction Past and present construction payment provisions and practices in Malaysia Payment provisions in United Kingdom, Australia and Singapore Part Two Introduction Post Adjudication scenarios in United Kingdom, Australia and Singapore Part Three Introduction Pertinent features and provisions of CIPAA CIPAA pertinent issues and implications Summary/Conclusion References/Bibliography Since publishing the first two parts of this three parts Article, the Construction Industry Payment and Adjudication Act 2012 which was gazetted on 22nd June 2012, came into operation on 15th April 2014 CIPAA primary objective is to facilitate regular and timely payment by providing mechanism for speedy dispute resolution through adjudication, which is a speedy alternative dispute resolution for recovery of outstanding payment/s in the construction industry Part Three, which is the final part of this three parts Article, is presented below PERTINENT FEATURES AND PROVISIONS OF CIPAA On 15th April 2014, CIPAA came into operation together with its subsidiary legislation, namely Construction Industry Payment & Adjudication Regulations 2014 ( CIPAA Regulations ) and exemption order, namely Construction Industry Payment & Adjudication (Exemption) 2014 ( CIPAA Exemption Order ) Objectives and Scope The primary objective of CIPAA is to address cash flow problems in the construction industry by removing the pervasive and prevalent practice of conditional payment ( pay when paid, pay if paid and back to back ) and reduces payment default by establishing a cheaper and speedier system of dispute resolution in the form of adjudication (KLRCA, 2012) CIPAA applies to every construction contracts includes construction work contracts and construction consultancy contracts, in writing, it defined construction works as; construction, extension, installation, repair, maintenance, renewal, removal, renovation, alteration, dismantling, or demolition of: a) Any building, erection, edifice, structure, wall, fence or chimney, whether constructed wholly or partly above or below ground level; b) Any road, harbour works, railway, cableway, canal or aerodrome; c) Any drainage, irrigation or river control work; d) Any electrical, mechanical, water, gas, oil, petrochemical or telecommunication work; or e) Any bridge, viaduct, dam reservoir, earth-works, pipeline, sewer, aqueduct, culvert, drive, shaft, tunnel or reclamation work, And includes A Any work which forms an integral part of, or are preparatory to or temporary for the works described in paragraphs (a) to (e), including site clearance, soil investigation and improvement, earth-moving, excavation, laying of foundation, site restoration and landscaping; and B Procurement of construction materials, equipment or workers, as necessarily required for any works described in paragraphs (a) to (e) Generally, this Act covers industries such as building/construction, oil and gas, infrastructure, petrochemical, telecommunication, utilities, supplies and consultancy However, CIPAA is not applicable to construction of any building which is less than 4 storey high and for own occupation Under the Act, the Minister of Works can, with recommendation of KLRCA, exempt any person or contract, matter or transaction from CIPAA In fact, under CIPAA Exemption Order First Schedule, the Ministry of Works has wholly exempted the following Government construction contracts; i) That is carried out urgently and without delay due to natural disaster, flood, landslide, ground subsidence, fire and other emergency and unforeseen circumstances; ii) That relates to national security or security relayed facilities which includes the construction of military and police facilities, military bases and camps, prison and detention camps, power plant and water treatment plant 58

2 The CIPAA Exemption Order Second Schedule allows Government construction contracts with a contract sum of RM20 million or less to be exempted from the application of subsections 6(3), 7(2), 10(1), 10(2), 11(1) and 11(2) until 31st December 2015, by providing a more lenient submission timeline For example, submission of payment response is extended to 30 working days instead of 10 working days If the payment remains unpaid thereafter, either the unpaid or non-paying party can refer the payment dispute to Adjudication The adjudication proceeding commences when the Claimant serves a written notice of adjudication to the Respondent The flowchart of the adjudication process is, as follows; Adjudication Authority By virtue of CIPAA Part V, Kuala Lumpur Regional Centre For Arbitration ( KLRCA ) has been appointed as the adjudication authority, including being the default appointing and administrative authority Under CIPAA Section 32, KLRCA is responsible for: a) Setting of competency standard and criteria of an adjudicator; b) Determination of standard terms of adjudicator s appointment and fees; c) Administrative support for efficient adjudication conduct; d) Any functions as may be required for efficient conduct of adjudication Further KLRCA s role and responsibility which are provided and explained in CIPAA Regulations, includes the appointment of adjudicators, conducting adjudicators training and certification courses, certifying qualified adjudicators and as stakeholder for adjudication fees payable to adjudicators Adjudication under CIPAA As CIPAA governs adjudication, it is a statutory and mandatory dispute resolution process It differs from other dispute resolution methods such as arbitration or mediation as it can commence at any time during progress of works and does not require any pre-agreement of the parties to commence the process Even if there is a contract provision which prohibits using adjudication, CIPAA prevails over it Relatively, adjudication is a much faster and cheaper process compared to arbitration or court proceedings Under CIPAA Section 41, only payment disputes under construction contract can be referred to adjudication The definition of payment can be found under CIPAA Section 4, which states a payment for work done or services rendered under the express terms of a construction contract Further under Section 5(1), An unpaid party may serve a on a non-paying party for The whole adjudication process starts when the unpaid party which is normally the Contractor or Sub-Contractor serves a Payment Claim in writing as required under CIPAA Section 5(2), which includes:- a) The amount claimed and due date for payment of the amount claimed; b) Details to identify the cause of action including the provision in the construction contract to which the payment relates; c) Description of the work or services to which the payment relates; and d) A statement that it is made under this Act According to Chow (2014), the cause of action may include one or more of the following issues: a) the contractor s entitlement to be paid as indicated in the amount certified on the relevant payment certificate; b) the extent to which the contractor has been paid the certified amount; c) where the contractor does not accept the certified sum, the extent to which the contractor maintains that he is entitled to a different sum from the certified sum; and d) where no payment certificate was issue in accordance with the contract, the amount which the contractor considers he should have been certified had the certificate been promptly issued The non-paying party who is usually the paymaster is to respond by making the payment or serving a Payment Response to the unpaid party within 10 working days Failure in responding to the Payment Claim is deemed to have disputed the entire Payment Claim Flowchart 1 : CIPAA Adjudication Process (BK Entrusty ) 59

3 Flowchart 2 : CIPAA Adjudication Process and Time Overview (KLRCA, 2012) Under CIPAA, an Adjudication decision is binding and enforceable, unless: a) It is set aside by High Court on the following grounds (Section 15): i the Adjudication decision was improperly procured through fraud or bribery; ii there has been a denial of natural justice; iii the Adjudicator has not acted independently or impartially; or iv the Adjudicator has acted in excess of his jurisdiction; or b) Subject matter of the decision is settled by way of a written agreement between the parties (Section 13); or c) The dispute is finally decided by arbitration or by court (Section 13) The winning party may enforce the adjudication decision by applying to the High Court for an Order as if it is a judgement or order of the High Court The Court may make an Order in respect of the adjudication decision either wholly or partly and interest on the adjudication amount payable, on such application The Order, if granted, may be executed in accordance with the rules on execution of orders or judgments of the High Court In the event of non-payment of the adjudicated amount, CIPAA under Sections 29 and 30, provide remedies for winning parties to: a) suspend performance or reduce rate of progress of performance of construction work or construction consultancy services However, the winning party can only do so if the losing party failed to pay the adjudicated amount upon expiry of 14 days from the receipt of a written notice of intention to suspend performance by the losing party (CIPAA Section 29) b) request the adjudicated amount directly from the principal (CIPAA Section 30) For example, if the winning party is the sub-contractor, he can request for direct payment from the Employer directly The Employer may recover the amount paid to the winning party as a debt or set off from any money due or payable by Employer to the losing party The winning party who suspends performance or reduces his works performance is protected under CIPAA Section 294, provided that such party: a) is not be in breach of contract; b) is entitled to a fair and reasonable extension of time to complete his obligation under the contract; and c) is entitled to recover any loss and expense incurred as a result thereof However, the winning party who exercises the above right/s, must resumes its works under the contract within 10 days after being paid the adjudicated amount or any amount as determined by arbitration or court The winning party may exercise these remedies concurrently, as allowed under CIPAA Section 31 Under Section 36, CIPAA provides default provisions in the absence of any contract payment terms in the sub-contract agreements It is stated that in the absence of any matter on progress payment at a value calculated by reference to: a) the contract price for the construction work or construction consultancy services; b) any other rate specified in the construction contract; c) any variation agreed to by the parties to the construction contract by which the contract price or any other rate specified in the construction contract is to be adjusted; and d) the estimated reasonable cost of rectifying any defect or correcting any non-conformance or the diminution in the value of the construction work or construction consultancy services performed, whichever is more reasonable Reference shall also be made to (CIPAA Section 36(2)): a) fees prescribed by relevant regulatory board under any written law; or b) if there is no prescribed fees referred to in paragraph (a), fair and reasonable prices or rates prevailing in the construction industry at the time of carrying out the construction works or consultancy services The default frequency for progress payment under CIPAA Section 36(3) is: a) monthly, for construction work and consultancy services; and b) upon the delivery of supply, for the supply of construction materials, equipment or workers; and c) the due date for such payment is 30 calendar days from receipt of invoice CIPAA PERTINENT ISSUES AND IMPLICATIONS ISSUES The interpretation of certain terms under CIPAA is one of the pertinent issues that may confuse and affect those using CIPAA and its adjudication process Those interpretation issues include construction contract made in writing and payment, as discussed below; i) Construction Contract Made in Writing CIPAA neither defines nor provides explanation on the term construction contract made in writing In views of this shortcoming, KLRCA which is the adjudication authority by virtue of CIPAA Part V, issued its Circular 03 dated 28th April 2014 and adopted the following definition of construction contract in writing as; 1) There is a contract in writing:- a) If the contract is made in writing (whether or not it is signed by the parties); b) If the contract is made by exchange of communications in writing; or c) If the contract is evident evidenced in writing 2) Where the parties agree otherwise than in writing by reference to terms which are in writing, they make a contract in writing 3) A contract is evidenced in writing if a contract made otherwise than in writing is recorded by one of the parties, or a third party, with the authority of the parties to the contract 60

4 However, it must be noted that aforesaid is only a guideline provided by KLRCA and is not binding The Court may be provide a legal definition of construction contract made in writing under CIPAA, in due course The aforesaid Circular 03 is amongst the 4 recent circulars by KLRCA to clarify several issues relating to CIPAA, as tabulated below or suspends his works performance due to non-payment of adjudicated amount by the Losing Party Based on the local standard construction/building forms in Malaysia, it is interesting to note that, under PAM 06 clause 244, it stated that any ascertained L&E by Architect/Quantity Surveyor shall be added to Contract Sum be included in subsequent interim payment, accordingly In PWD 203A clause 44, it is stated that any ascertained L&E by Superintending Officer to be added into the Contract Sum In IEM CE 2011, the term L&E which is replaced with Cost, is one of the items to be included under the Contractor s Interim Payment Application, as per clause 581 Under CIDB Form, clause 325 states that the Contractor shall be entitled to have included in any payment certified by Superintending Officer pursuant to Clause 42 (Payment) such amount in respect of any claim for Loss and Expense as the Superintending Officer may consider due to Contractor As provided in above local standard forms, it is evident that L&E can be included in the interim payments, thus it is submitted that L&E can be part of Payment Claim under CIPAA However, whether L&E is part of CIPAA Payment definition is currently still uncertain and it is up to the courts to decide on this issue, in due course Table 3 : KLRCA Circulars on CIPAA (KLRCA, 2014) iv) Others Issues ii) Payment Another pertinent issue under CIPAA is the interpretation of Payment definition Under CIPAA Section 4, Payment is defined as a payment for work done or services rendered under the express terms of a construction contract Further under Section 5(1), An unpaid party may serve a on a non-paying party for Due to the fact that CIPAA is still at its infancy, there are several other uncertainties and issues of concerns to the interested and affected parties Some of these issues have been highlighted by Harbans (2014), as follows; 1 In construction project, payment may include; Progress or Interim 7 Payment 8 Payment from Variation 9 Works 10 Final Payment 11 Prime Cost Sum 12 Provisional Sum Retention Sum Preliminaries Contingency Sum Prolongation Costs Loss and/or Expense Insurance Costs Interest Payment By virtue of Payment definition, it is most likely that CIPAA covers item (1) to (8) However for item (9) to (12), they may not directly be a payment for work done or services rendered but it can be considered a payment pursuant to the construction contract concern iii) Loss and/or Expense CIPAA is silent on whether Loss and/or Expense ( L&E ) is part of its Payment Claim but allows L&E to be recovered when the winning party reduces his construction or consultancy works rate 61 5 Under CIPAA Exemption Order, there are two categories of exempted types of contract Is it only the Main Contract of those two categories is exempted? Or Are all the contracts, including sub-contracts and suppliers exempted as well? What types of payment is allowed to be adjudicated under CIPAA? What recourse if the adjudicator s decision is void due to his failure to deliver the decision within the stipulated period under CIPAA; CIPAA Section 19(6) stated that the adjudicator is not entitled to his fees if he failed to deliver his decision within the period specified under CIPAA How about the costs/expenses incurred by the disputing parties during the adjudication proceeding? CIPAA applies to construction work carried out wholly or partly within territory of work but to what extend? What if only 1% of the work is carried in Malaysia and the rest is carried outside Malaysia, does CIPAA still applies? What if the local contracts concerns are subjected to foreign law? Master Builders Journal 2nd Quarter 2014

5 IMPLICATIONS Generally, CIPAA aim is mainly to address and resolve payment disputes in the Malaysian construction industry However, the effect of its implementation will be felt by all players in the construction industry including employers, contractors, subcontractors, suppliers and consultants Below are some of the potential implications; i) Availability of sufficient/steady cash flow; ii) Need of efficient payment process administration; iii) Create CIPAA awareness and compliance; iv) More cautious on payment issues; v) Reduction in payment risk due to delayed/non payment; vi) Improvement in cash flow; vii) Option to reduce works performance or suspend works due to non-payment of adjudicated amount; viii) Prohibition of Conditional Payment practice; ix) Enforcement of CIPAA default payment provisions in the absence of contractual payment provision; x) Promote prompt resolution to payment disputes; xi) Need for adjudication knowledge and skills; and xii) Enlarge scope of consultancy services Prohibition of Conditional Payment Practice The introduction of CIPAA will eventually change the local sub-contract payment practices entirely Under CIPAA Section 35(1), it effectively removes conditional payment provisions of pay when paid or pay if paid or back to back, as below: Any conditional payment provision in a construction contract in relation to payment under the construction contract is void Further to avoid any misconception on the conditional payment, CIPAA defined conditional payment provisions under Section 352 as when; 1) The obligation of one party to make payment is conditional upon that party having received payment from a third party; or 2) The obligation of one party to make payment is conditional upon the availability of funds or drawdown of financing facilities of that party By making the conditional payment practice void, CIPAA reverses and brings to the end several past judicial decisions, such as; and Table 5 : Prohibition of Conditional Payment Practice Before and After 15 April 2014 Valuation of Variations In common practice, many variation claims and valuations are mostly dealt with towards the end of the project as the timing for valuation of variations is not specified in most standard forms For example, under PAM 06 Form clause 115 states that all variations shall be measured and valued by Quantity Surveyor ( QS ) Further, PAM 06 Form clause 119 stated that as soon as the variation amounts have been ascertained, the amounts ascertained shall be added to the Contract Sum and such amount will be included in the next Payment Certificate As variation claims are most likely to be included in the Payment Claim under CIPAA, contractors should endeavour to submit variation claims progressively and/or upon completion of each variation works Any failure or delay in valuing and certifying the variation works by QS and/or Architect is likely to give rise to a breach and possible adjudication reference Unlike arbitration, adjudication under CIPAA can commence anytime during the works progress, thus putting the employers vulnerable to such action This may also apply at Sub-contract level Final Account Settlement The preparation of Final Account is usually a lengthy process involving voluminous supporting documents Below are the procedures for Final Account settlement under the various local standard forms: i) In PAM 06 Form clause 3010, within 6 months after Practical Completion, the Contractor to submit all necessary documents for Architect or QS for Final Account preparation If no documents are submitted by Contractor, the Architect or QS can proceed with the preparation of Final Account based on available information The Architect or QS to complete the Final Account within 6 months of receipt of all documents from Contractor The Contractor may dispute the Final Account within 3 months from its receipt and within 3 months, subsequently the Architect or QS may amend it Any party who disagrees with the amended Final Account can refer the dispute to Arbitration ii) PWD 203A Form has similar procedure, but the Final Account preparation period is 3 months instead of 6 months PWD 203A is silent for revision of Final Account but allows for any dispute to be arbitrated iii) IEM CE 2011 Form requires Contractor to submit the Final Account application 3 months after issuance of Certificate of Making Good Defects and within 2 months of its receipt, the Engineer must issue a Draft Final Account for the Contractor s agreement In failing to achieve the Contractor s agreement, discussions need to be held within 60 days of the Contractor s notice of disagreement If the Contractor further disagrees with the Draft Final Account, the contracting parties may proceed with Mediation and/or Arbitration Due to the speedy process of Adjudication under CIPAA, the Employer may be ambushed by the Contractor if he decides to submit Final Account dispute to adjudication as: i) there is no time limit for the Contractor to serve a Payment Claim after dispute has arisen as CIPAA is silent on it 62

6 ii) the Employer has to respond to the Payment Claim within 10 days, otherwise the Employer deemed to have disputed entire payment claim (CIPAA Section 6(4)) iii) the Contractor/Claimant can then refer the dispute to Adjudication subject to the Limitation Act (CIPAA Section 7(3)) iv) once the Claimant/Contractor submitted its Adjudication Claim, the Respondent/Employer has only 10 days to prepare its Adjudication Response (CIPAA Section 10(1)) v) both Adjudication Claim and Response must be submitted with supporting documents (CIPAA Section 9(2) and 11(2)) A Contractor is likely to have sufficient time to prepare his Payment Claim (CIPAA Section 5) prior to the issuance of Notice of Adjudication, and the Adjudication Claim (CIPAA Section 9) which is 10 days after appointment of Adjudicator as he will be able to determine the time for initiating the whole Adjudication process On the other hand, the Employer and his Architect, Engineer and/or QS may be caught unprepared due to the strict adjudication time limit This scenario can also occur at sub-contract level, whereby the Subcontractor can surprise the Contractor, as well Multiple Adjudications CIPAA Section 37 (1) allows reference to the Adjudication to run concurrently with arbitration and/or litigation as it can commence at any time, whether during the construction works or after its completion, as opposed to arbitration which normally commence after completion or alleged completion of the works Consequently, multiple adjudications and other disputes resolution process may commence simultaneously at various levels of the contractual chain For example, the Contractor may commence an adjudication process against the Employer and at the same time, the Sub-contractor may commence an adjudication process with the same Contractor It is possible that in the same period, the Contractor commences arbitration proceeding against the Employer, as well Due to the possibility of multi-cross dispute resolutions process, the disputing parties not only need to focus on construction tasks in hand but also prepare for multiple dispute resolution processes, especially adjudication which is a speedy process There is also no limit as to how many adjudications can be commenced on one project Therefore, without proper project and financial management of the construction project, such multiple adjudications can disrupt and delay the works progress, significantly and the eventual project completion CONCLUSION In this three parts Article published quarterly, over the past two quarters, Part One aimed to provide readers with an appreciation of the past and present payment practices and provisions of conditional payment in Malaysia, whilst Part Two reviewed and discussed the payment provisions and their implementation and practices in the United Kingdom, Australia and Singapore, who are under a statutory adjudication regime For this quarter, this Part Three had introduced the pertinent features and provisions, including the issues, challenges and implications of the recently implemented Construction Industry Payment and Adjudication Act ( CIPAA ), which came into operation on 15 April 2014 Following the aforesaid CIPAA implementation recently, the Malaysian construction industry, with its common practices of contractors sub-letting their works to subcontractors on conditional payment basis, is expected to come to an eventual halt, finally Gone will be the days of the pay-when-paid or pay-if-paid provisions, whereby sub-contractors can only receive their payment when or if the Contractor receives its corresponding payment from the Employer This should mean that sub-contractors who have been burdened and suffered financially by such practices, which often were tainted with malpractices or ill-intents, should cease and cash flow, which is the life blood of the construction industry, should improve to a healthy level, eventually Consequently, CIPAA introduction should be good news to contractors and subcontractors especially, who have been long burdened by the malpractices of conditional payment term in sub-contracts, as not only conditional payment term has been prohibited by the said Act, but also that remedies for non-payment are now been made available to them However, as CIPAA is still at its infancy, barely six months into its implementation, many contractors and sub-contractors are still accepting or even tolerating with the non or delay payment practices by the recalcitrant employers and contractors, respectively In fact, conditional payment provisions, are still evident in the industry today, particularly at sub-contract level, despite being outlawed by CIPAA Unlike in other countries with similar statutory payment regime where their construction industry is more developed, regulated and litigious, the players in the Malaysian construction industry tend to be more conservative and less litigious Consequently, the emphasis on tolerance, culture and commercial approach in settling payment issues will not disappear overnight merely by CIPAA introduction The usual wait and see attitude of Malaysian players is likely to prevail, until it is relatively clear and certain that the eventual adjudicated decisions do produce the speedy desired payment outcomes, with the necessary support of the courts, particularly the recently launched construction courts in Kuala Lumpur and Shah Alam Consequently, it may require some proactive, persuasive and/or drastic measures, perhaps even subject to an economic downturn, for the industry players to really latch onto CIPAA and adjudicate to achieve the necessary payment outcomes Just like the courts which have decided and affirmed the entrenched conditional payment provisions and practices in the past, it will take time for our industry players to be re-educated or conditioned into resolving their payment disputes via adjudication Nonetheless, with the CIPAA in force, the Malaysian construction industry can be expected to be healthier in terms of payment and cash flow, but it may also mean the advent of longer payment duration, particularly by those who were the advocates of conditional payment terms, previously Notwithstanding, in taking the cue from the statutory adjudication practiced elsewhere, such practices have shown significant improvement in the construction industry in terms of its economy and cash flow of those countries involved and this is likely to happen, eventually here in Malaysia That said, adjudication is still a rough justice and temporary judicial process as its decision or award is vulnerable to review by the courts, although under limited conditions only The concern of having to possibly arbitrate/litigate after adjudication and/or the Payee suffering the repercussion/s or getting the wrath subsequently from the Payor in an interim payment dispute of an ongoing construction project, can be a deterring factor in relying on CIPAA and referring it to adjudication, instead of other dispute resolution avenues To this end, with the CIPAA finally in place, it will be interesting to see the actual impact on the Malaysian construction industry and how CIPAA will be governed, regulated and practiced, as well as tested and decided by the courts, hereon In the next issue of the MBAM Journal, BK Entrusty article will deal with another pertinent contractual issue affecting the Malaysian construction industry on Rates Rationalization Practices in the Construction Industry References/Bibliography (for all 3 parts) 1) Adjudication Reporting Centre, Glasgow Caledonian University (2010), Report no 10 Research Analysis of the Progress of Adjudication Based on Returned Questionnaires From Adjudicator Nominating Bodies (ANBs) and From a Sample of Adjudicators Glasgow Caledonian University, UK 2) Adjudicate Today Pty Ltd (2012) Response to NSW Reform of the Home Building Act 1989 Issues Paper, NSW Fair Trading, Australia 3) Antah Schindler Sdn Bhd v Ssangyong Engineering & Construction Co Ltd [2008] 3 MLJ

7 4) Asiapools (M) Sdn Bhd v IJM Construction Sdn Bhd [2010] 3 MLJ 5) Baskaran, Thayananthan & Ismail, Imran (2011), If and When, The Interpretation of Pay When Paid Clause, Construction Law Digest December 2011, Malaysia 6) Bridgeway Construction Ltd v Tolent Construction Ltd [2000] CILL ) Chow, KF, Lim, CF, Oon, CK (2014), Adjudication of Construction Payment Disputes in Malaysia, Lexis Nexis 8) Chow, KF (2013), Security of Payments and Construction Adjudications 2nd Lexis Nexis 9) Chang, Wei Mun (2012), Adjudication In Malaysia The Construction Industry Payment and Adjudication Act 2012, retrieved July 2013 from 10) Chase Oyster Bar v Hamo Industries [2010] NSWCA ) Coggins, J, Elliot, RF & Bell, M, (2010) Towards Harmonisation of Construction Industry Payment Legislation: A Consideration of the Success Afforded by the East and West Coast Models in Australia plus Addendum, Australasian Journal of Construction Economics and Building Australasian Journal of Construction Economics and Building, 10, (3), 14-35, ( ), ) David Thomas QC (2011), Statutory Reform in UK Construction Contracts, Construction Law International Volume 6 Issue 4 December 2011, London 13) Ir Harbans Singh KS (2014), CIPAA: Issues in Implementation KLRCA Construction Industry Payment & Adjudication Act 2012 Conference 14) KLRCA (2012) Construction Industry Payment & Adjudication Act 2012, Kuala Lumpur 15) KLRCA (2012), KLRCA Adjudication Conversion Course Unit 1 16) KLRCA (2012), Construction Industry Payment & Adjudication Act ) KLRCA (2014), Circular CIPAA 01 Circular by KLRCA On The Saving Provision In Section 41 of CIPAA and The Administration of Adjudication Cases By The KLRCA 18) KLRCA (2014), Circular CIPAA 02 Circular On KLRCA s Recommended Schedule of Fees 19) KLRCA (2014), Circular CIPAA 03 Circular On KLRCA s Guideline On The Meaning Of Construction Contract Made in Writing 20) KLRCA (2014), Circular CIPAA 04 Circular On KLRCA s Procedure For Exemption Application Made Under Section 40 Of The Construction Industry Payment And Adjudication Act ) Kreisson Legal (2010) New Turning Point for Challenges to Adjudication Determinations retrieved August 2013 from 22) Law Of Malaysia Act 746 (2012), Construction Industry Payment & Adjudication Act 2012, Malaysia 23) Law of Malaysia (2014), Construction Industry Payment & Adjudication Regulation 2014, Malaysia 24) Law of Malaysia (2014), Construction Industry Payment & Adjudication (Exemption Order) 2014, Malaysia 25) Michael Gerald Consulting Limited (2010) Statutory Adjudication: Tolent Clauses Kicked-Out! retrieved August 2013 from _ 26) New South Wales, Australia Building and Construction Industry Security of Payment Act 1999 No 46 retrieved August 2013 from 27) Pillay, MR (2011), The Statutory Adjudication Regime in Singapore MIARB Conference on Practice & Procedure of Adjudication (21 November 2011, Kuala Lumpur) 28) Pernas Otis Elevator Co Sdn Bhd v Syarikat Pembenaan Yeoh Tiong Lay Sdn Bhd & Anor [2004] 5 CLJ 29) Rira Bina Sdn Bhd v GBC Construction Sdn Bhd [2011] 2 MLJ 30) Singapore Building and Construction Authority (2013), Adjudication Statistics (Apr 2005 to May 2013) retrieved August 2013 from 31) Singapore Building and Construction Industry Security of Payment Regulations (2006 Revised Edition) retrieved August 2013, from 32) Seloga Jaya Sdn Bhd v UEM Geisys Sdn Bhd [2010] 3 MLJ ) Sungdo Engineering & Construction (S) Pte Ltd V Italcor Pte Ltd [2010] SGHC ) United Kingdom Law, Housing Grants Construction and Regeneration Act 1996 retrieved August 2013 from 35) United Kingdom Law, The Scheme for Construction Contracts (England and Wales) Regulation 1998, retrieved August 2013 from 36) United Kingdom Law, Local Democracy, Economic Development and Construction Act 2009, retrieved August 2013 from 37) Yuanda (UK) Co Limited v WW Gear Construction Limited [2010] EWHC 720 (TCC) 38) References were also made to several Malaysian Standard Forms of Contract, namely; i PAM Forms of Building Contract (2006); ii JKR/PWD Forms of Contract (203A Rev2007) iii IEM Form of Contract for Civil Engineering Works (IEM CE 2011) 2nd Edition iv CIDB Form of Contract for Building Civil Engineering Works (2000 Edition) v PAM Sub-Contract 2006; vi IEM Conditions of Sub-Contract (1990); vii PWD Form 203N (2007) for Nominated Contractor; and viii CIDB Form of Sub- Contract for Building Works (2002) BK Asia Pacific is group of companies incorporated in the Asia Pacific Region providing a comprehensive network of project management, commercial and contract management services to the international construction industry, with offices in Cambodia, China (Hong Kong, Macau and Shanghai), Malaysia, Philippines, Singapore, Thailand and Vietnam For further details, visit wwwbkasiapacificcom Entrusty Group is a multidisciplinary group of companies which comprises Entrusty Consultancy Sdn Bhd (formerly known as JD Kingsfield (M) Sdn Bhd), BK Burns & Ong Sdn Bhd (a member of BK Asia Pacific Ltd, Hong Kong), Pro-Value Management Sdn Bhd (in association with Applied Facilitation & Training, Australia), International Master Trainers Sdn Bhd (in association with Master Trainer of New York), Agensi Pekerjaan Proforce Sdn Bhd, and Entrusty International Pte Ltd The Group provides comprehensive consultancy, advisory and management services in project, commercial, contracts, construction, facilities, risks, quality and value management, cost management, executive search/personnel recruitment and corporate training/seminars/workshops to various industries particularly in construction, petrochemical, manufacturing and IT, both locally and internationally For further details, visit wwwentrustycom BK Entrusty provides 30 minutes of free consultancy (with prior appointment) to MBAM members in the areas of project, commercial, contracts, risks, quality and value management For enquiries, please contact Sr HT Ong at BK Entrusty, 22-1 & 2 Jalan 2/109E, Desa Business Park, Taman Desa, Kuala Lumpur, Malaysia Tel: 6(03) Fax: 6(03) htong@entrustycommy or htong@bkasiapacificcom Public Seminars 1 Claims Preparation and Management 2 Certifications and Payments 3 Time and Monetary Claims 4 Common Contractual Issues/Problems in Malaysia 5 Pertinent Contractual Provisions in Construction Contracts 6 Recent Construction Contract case law in Malaysia Public/In-house Training Programmes 1 Effective Project or Contract Administration/Management 2 One Day or Two Days Intensive Seminar (with workshop) on Practical Construction Claims in Malaysia 3 10 Half Day or 5 Full Day Modules on Practical Construction Contract Administration/Management 4 One Day or Two Days Intensive Training (with workshop) on Value Engineering/Management 5 International/Accredited Value Management Programmes 6 ISO 9001:2008 Training 7 One Day Seminar on Doing The Right Things Right 8 Motivation, Train-The-Trainer and NLP programmes 64