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Employment by Employer
Contract does not come to an end, but it will remain in force in order to
bring it to a closure.
This matter means that both party will have to wait until the project is
finish to get the final revised contract sum, afterwards employer will
claim the excess amount from the contractor.
Default by Contractor
Under PAM Contract 2006 clause 25.1 (a)-(f), Employer may determine the
employment of the Contractor if the Contractor are found to be default in
any of the following:-
1. Clause 25.1 (a), Contractor fails to commence the work in accordance
with the contract without reasonable reasons.
2. Clause 25.1 (b), Contractor wholly or substantially suspends the
carrying out of work without reasonable reasons.
3. Clause 25.1 (c), when the Contractor fails to proceed regularly and/or
diligently with the works in terms of time and quality.
Default by Contractor
According to PAM 2006 clause 25.2, upon any occurrence of default under
Clause 25.1, and if the Employer decides to terminate the employment of
Contractor, Employer or Architect on his behalf shall give Contractor a
written notice by hand or by registered post specifying the default.
If the Contractor continue its default for fourteen (14) Days after the
receipt of such notice, the Employer may, within ten (10) Days from the
expiry of fourteen (14) Days by a further written notice, determine the
employment of Contractor under the contract.
2-Steps Procedure for Determination : Step 1
b. Upon the receipt of such notice, Contractor can take the following action:-
I. Dispute the notice;
II. Admit the notice and make good;
III. Ignore the notice and continue with the default.
a. If Contractor continue such default after expiry of fourteen (14) Days upon the
receipt of Notice of Default, the Employer can (only) issue the Notice of
Determination within ten (10) Days from the expiry of said fourteen Days.
b. Contractor must vacate the site and return site possession to Employer within
14 Days from Notice of Determination.
f. Where either party have disagreement over the Final Account, they shall submit
their disagreement to the Architect/Quantity Surveyor. They will then within 3
Months, go deep into the disagreement to decide whether to amend and notify
the parties. Afterwards, either party is given 3 Months to refer the disagreement
to arbitration, or else the result will be seem as conclusive and agreed by both
parties
Automatic Determination
Under PAM 2006 clause 25.3, the employment of the Contractor shall be
automatically determined if:-
1. The Contractor has become insolvent;
2. Making a composition or arrangement with his creditors;
3. Have a winding up order made;
4. A resolution for voluntary winding up;
5. Having a liquidator/receiver/manager of his business of undertaking duty
appointed by the court;
6. Having possession taken by or on behalf of the holders of any debentures
secured by a floating charge.
Rights and Duties of Employer/Contractor after
Determination
1. Under clause 25.7, Contractor has the right to claim for compensation
for damages only if the Determination is later found to be invalid or
beyond contract provision.
require the Contractor to assign without payment the benefit of any agreement
for the supply of materials, goods and for the execution of any work.
instruct the Contractor to remove any temporary buildings, construction plant,
tools, equipment, materials and goods belonging to or hired by him; if not they
may be sold and the proceeds less all costs incurred held to the credit of the
contractor.
the employer is entitled to be paid all cost incurred to complete the works by the
contractor including all loss and/or expense suffered by him.
make no further payment to the contractor until after the completion of the
works when there is a final settling up.
Employers rights and remedies not
prejudices
1. Under clause 25.8 the provisions of this clause are without prejudice to any
other rights and/or remedies which the Employer may possess.
2. This provision is aimed at preserving the Employers common law rights and
remedies in the event of determination.
3. In practice, the Contractor have parallel rights for determination under
common law, even though it is not so expressed in the contract.
Employers rights and remedies not
prejudices
4. In the event of any default by the Contractor, the Employer must exercise his
rights to determine either:
- Under the clause 25.2 of the contract for performance default; or -
- Under common law.
6. Common law rights can only be excluded by express term in the contract.
Completion of remaining works
The Employer shall take immediate steps to arrange for the completion of the
remaining works:
1. Instructs the Contractor to carry out the following:
- Cease all operations on site.
- Demobilize and remove all his workers and staff.
- Leave all temporary building, plants and tools and unfixed
materials and good until they are not required.
2. Make a claim against the bank, i.e. to call on the Performance Bond.
Completion of remaining works
5. The Employer shall take up separate insurance coverage under fire and
Third Party policy for the completed works.
Completion of the remaining NSCs works
1. The Architect shall nominate the same NSCs to the replaced contractor
provided they are agreeable to proceed with the same subcontract sum or
price, as if their employment by the first Contractor had not been terminated.
2. The new subcontract sums shall be the original subcontract sum less the
amount previously paid to the NSCs.
3. Where a NSC demands for an increase of the subcontract sum, fresh tenders or
quotations shall be invited to complete the works.
Determination of NSCs Employment
1. The contractor shall give a written report stating the NSCs default to
the Architect, with a copy extended to the NSC.
3. This will also give the NSC the opportunity to rebut the Contractors
allegation with cogent evidence.
How to complete remaining works abandoned
by NSC
1. When the NSC abandoned his work, the Contractor shall determine the
NSCs employment with the Architects consent.
3. The Employer has to pay any additional amount to the Contractor if the
replacement MSC charges a higher price than what would have been
payable to the previous NSC.
How to complete remaining works abandoned
by NSC
4. The Employer is liable to bear time and cost implications unless such cost
are recoverable from the previous NSC.
J01. JKR Form Clause 51.1 gives the rights to terminate the Contract by the
Government in the event of any of the following Contractors defaults:
i) fails to commence works at site within 2 weeks after Date for Possession
ii) suspends or abandons the works before Date of Completion
iii) fails to proceed regularly and diligently with the performance
iv) fails to execute the Works in accordance with the Contract
v) persistently neglects to carry out his obligations under the Contract
vi) fails to comply with clause 47
vii) fails to comply with any terms and conditions of this Contract
In comparison with JKR Form 203A (2007)
Officer named in the Appendix shall give written notice to Contractor specifying
the default and requiring the Contractor to remedy the default within 14 days of
receipt of the default.
J02. Clause 51.2 gives the rights to terminate the Contract by the Government In
the event that the Contractor becomes bankrupt or insolvent or an order for
winding up or a liquidator has been appointed or execution is levied against a
substantial portion of the Contractors assts.
In comparison with JKR Form 203A (2007)
J03. In the event of termination of Contract under clause 51.1 & 2, Contractor
[under clause 51.1 (c) (i)] shall:
terminate all third party contracts entered into by the Contractor; or assign
to the Government if so required by the S.O.; or allow such third party to
enter into a contract with the Government to complete the Works.
J04. In the event of termination of Contract under clause 51.1 & 2, the
Government, [under clause 51.1 (c) ( ii)], shall:
A) call upon the Performance Bond or forfeit the Performance Guarantee
Sum
B) enter and repossess the Site
C) be entitled to carry out and complete the Works on its own or
employed any other person to carry out and complete the Works
D) be entitled to claim against the Contractor for any losses, cost,
expenses and damages suffered as a result of termination of this
contract.
In comparison with JKR Form 203A (2007)
J05. Upon termination, Government is not liable for further payments on unpaid
certificates.
J06. Government can terminate the Contract based on national interest under
clause 52 by giving not less than 30 days written notice to Contractor. The
Government is not required to give any reason if the Government considers that
such termination is necessary for national interest, national policy or national
security.
Under PAM Contract 2006 clause 25.1 (a)-(f), Employer may determine the
employment of the Contractor if the Contractor are found to be default in
any of the following:-
1. Clause 25.1 (a), Contractor fails to commence the work in accordance
with the contract without reasonable reasons.
2. Clause 25.1 (b), Contractor wholly or substantially suspends the
carrying out of work without reasonable reasons.
3. Clause 25.1 (c), when the Contractor fails to proceed regularly and/or
diligently with the works in terms of time and quality.
4. Clause 25.1 (d), Contractor persistently refuses or neglect to comply
with Architect Instruction (AI).
5. Clause 25.1 (e), which stated the Contractors failure to comply with
clause 17.0, which defines when the Contractor assigns his rights,
interest and benefits under the contract to other parties or wholly or
substantially subcontract the works without the written consent of
Employer.
6. Clause 25.1 (f), where Contractor abandons his work with no intention
to continue the work.
Question 2
Employer had to make sure the Contractor had made default in any of the
following under clause 25.1:-
(a). Fails to commence the Works in accordance with the Contract without
reasonable cause;
(b). Wholly or substantially suspends the carrying out of the Works before
completion without reasonable cause;
(c). If he fails to proceed regularly and/or diligently with the Works;
(d). If he persistently refuses or neglects to comply with an AI;
(e). If he fails to comply with the provisions in Clause 17.0;
(f). If he has abandoned the Works.
Question 2-Answer (Part 2)
Notice of Default:-
1. The notice must be delivered by hand or by registered post.
2. The reason of default must be specified in the Notice. E.g. clause 25.1 (a) (f).
Notice of Determination:-
1. The notice must be delivered by hand or by registered post.
2. Comply meticulously with the time table stated in contract.
3. Make sure the notice must be clear as what is being notified, stating the
Contractors default and the related clauses of the contract.
4. The notice must be in writing form.
5. Such notice must not be given unreasonably or vexatiously.
Question 4
1. Clause 25.6, Architect shall within six (6) Months on completion of the works,
submit to Employer and Contractor a final account incurring all cost to
complete works for their agreement. E.g. contractual claims, amount
previously certified, etc.
2. Clause 25.6 (a), if both parties agree with the Final Account within three (3)
Months from the receipt of the F/A from Architect, the F/A shall be conclusive
and deemed to be agreed by both parties. If the revised amount is greater
than the original sum, Employer can then claim from the Performance Bond.
Vice versa, Contractor will be able to claim the amount from the Employer.
Question 4-Answer (Part 2)
3. Clause 25.6 (b), either party disagree on the F/A, he shall then give a written
notice to another party, setting out any disagreement within three (3) Months
from the receipt of such F/A. Again the Architect within three (3) Months may
or may not amend the F/A. Either party not satisfied with the amended F/A can
refer to arbitration as per clause 34.0 within three (3) Months upon receipt of
amended F/A. Failure to do so will lead to the F/A being conclusive and agreed
by both parties.
4. Any disputes on Liquidated Damages, set-off and interest which the Employer
is entitled to make under the Contract shall be referred to arbitration.
Question 5
1. The contractor shall give a written report stating the NSCs default to
the Architect, with a copy extended to the NSC.
3. This will also give the NSC the opportunity to rebut the Contractors
allegation with cogent evidence.
Question 6
* Make a claim against the bank, i.e. to call on the Performance Bond.
Question6 - Answer
* The Employer shall take up separate insurance coverage under fire and
Third Party policy for the completed works.