site possession

PROFESSIONAL PRACTICE

FOR QUANTITY SURVEYOR

SITE POSSESSION

DEFINITION

• According to the new oxford dictionary second edition;

- “site” is defined as a piece of land where a building was, is or will be.

- “Possession” is defined as the state of having or owning something.

INTRODUCTION

•Where the contractors have the right to enter the site, occupy and use the site and carry out the specified works.

Possession of site

•Starts from the date for possession of site to completion date and inclusive of extended time if the contractor is granted extension of time.

Duration of possession

•Possession will usually provide the contractor with such exclusive occupation and use the site as required constructing the works.

Contract period

INTRODUCTION

Date of Possesion

Contractor start work

on site

Date of Completion

Construction period

(duration of possession)

Insuance of CPC

INSPECTION OF SITE (Clause 11)PWD203A (Rev. 1 /2010)

11.1 before submitting the tender , contractor should go inspect the site to satisfy himself regarding these matters :

a)Nature of the ground and subsoil

b)Form and nature of the site

c)The extent and nature of the works, materials and goods necessary for the completion of the works

d)Means of communication with and access to the site

e)Accommodation he may require

f)Contractor responsible for all the information that affects the tender

11.2 any information or document forwarded by the government to the contractor shall not relieve the contractor of his obligations under the provisions of this clause

PROCESS OF SITE POSESSION

Date of possession - Refer to clause 38.2

• Employer is obligated to give possession of site to allow contractor to carry out his work.

• The date of possession is stated in letter of acceptance sent to contractor and appendix of condition of contract in contract documents.

• Usually the date of submission of the construction site is 2 weeks after the date (la)

• Within 2 weeks - the purpose to provide opportunities for the contractor to provide necessary preparations before starting work on site

PROCESS OF SITE POSESSION (CONT’D)

LETTER OF ACCEPTANCE

Site Possession

MAX 60 DAYS

Date of possession (cont’d)

Fixing dates for possession of site for governments jobs:

Where completion date is critical – 2 or 3 weeks after the date of letter of acceptance – sufficient time for contractor to obtain insurances, etc. And to mobilise resources

Other jobs – maximum of 60 days after date of letter of acceptance and to be fixed after consultation.


Degree of possession

- Refer to clause 38.2

• The extent of possession that must be given to the contractor is not necessarily to be the whole site.

• R v the walter cabott (1979) - the contractor must be given a reasonable degree of possession to enable him to commence the work in accordance to programme unless there is agreement to the contrary; execute the work unimpeded by others; and to perform the work in a satisfactory manner based on construction methods desired by him.


Degree of possession (cont’d)

• Employer is not deemed to guarantee possession due to events outside his control. For example, employer is not liable if contractor is prevented from gaining access by third party such as unlawful picket.

• Thorn v london corp (1876) - employer is not deemed to guarantee that the site is fit for the work or the contractor will be able to construct the building on site.


Degree of possession (cont’d)

Nobody else has the right to access the site except for:

• S.O or his representative who have the rights to access the site at any time (clause 46.1(a)),

• Other contractors engaged by government and their workers executing works on or near the site

(clause 46.2),

• Employer and any authorized persons to investigate causes of accident, failure or other events

connected with the works (clause 45).

PROCESS OF SITE POSESSION (CONT’D)Restricted possession

- Refer to clause 38.3

• Any restrictions on the giving of possession of site must be stipulated in the contract. It includes:

i. Giving possession for some parts of the works on different dates. For example, works to be done in phases.

ii. Also, any conditions obtaining which amount to some obstruction or restriction of possession. For example, proximity of electric power line, existence of squatters, and other structures on site

• The contractor is entitled to assume a degree of possession of the site to enable him to plan his work accordingly. The contractor is also entitled to claim damages if he is put to extra cost.

DELAY IN GIVING SITE POSSESSIONPWD203A (REV. 1 /2010)

• S.O has the power to defer/change the giving of possession of site for whatever reason

• There are two situations of duration ; not exceeding 90 days or exceeding 90 days from the date for possession fixed in the Letter of Acceptance.

• If delays is not exceeding 90 days ( refer to clause 38.4 ) :

Original date of site

possession< 90 days

New date of site

possession

• S.O need to issue instructions to revise the date of possession;

• The contractor to be granted EOT;

• Contractor has to proceed with the works;

• Contractor will not be entitled to any loss or damage caused by such delay, and;

• Contractor is not entitled to terminate the contract.

> 90 days 14 days

Date for possession

S.O obliged to notify the contractor in writing of the

causes of delay

Contractor has to reply within 14 days from the date receiving notice of

S.O- Contractor has 2 options

Option 1: Agree to proceed with works when

the site is available He cannot claim for loss & damage He cannot determine his own

employment

Option 2 : He can determine his own

employment He is entitled to claim for loss or

damage caused by the delay

DELAY IN GIVING SITE POSSESSION (CONT’D)PWD203A (REV. 1 /2010)

If delays in giving possession of the whole site has exceeded 90 days ( refer to clause 38.5) :


If delays in giving possession of the whole site has exceeded 90 days ( refer to clause 38.5) (Cont’d) :

IF THE CONTRACTOR DOES NOT GIVE HIS WRITTEN REPLY IN 14 DAYS:

The contractor is obliged to proceed with the work;

He is considered as not taking the option to determine his employment, and;

He cannot terminate the contract after agreeing to proceed with the work.


If delays in giving possession for part of the site exceeded 90 days ( refer to clause 38.6) :

> 90 days 14 days

Date for possession

S.O obliged to notify the contractor in writing of the

causes of delay

Contractor has to reply within 14 days from the date receiving notice of

S.O- Contractor has 2 options Option 1:

Agree to proceed with works when the relevant portion of the site is made available

Without entitlement to loss or damage for delayed possession of the site

He cannot terminate the contract

Option 2 : To request for the

affected part to be omitted from the contract

If the S.O agrees, it becomes a variation

The contractor is required to carry out the work and he cannot terminate the contract

If the S.O does not agree The contractor to proceed with the

work when the portion of the site is made available.

He can claim for loss and expenses He cannot terminate the contract

CONTRACTOR’S OBLIGATION AFTER SITE POSSESSION

PWD FORM 203A (REV.1/2010)

Clause 38.2

• ‘….The contractor shall thereupon and forthwith commence the works…and regularly and diligently proceed with and complete the works on or before the date for completion…’

• Contractor need to start the works and complete the works on or before the date of completion as stated in appendix.

• It is an obligation contractor to proceed with the work regularly and diligently and complete the work time.

• These requirements ensure that the contractor will perform according to the agreed schedule and the project can be completed within the promised.

CONTRACTOR’S OBLIGATION AFTER SITE POSSESSION (CONT’D)• Contractor is obligated and could be compelled to surrender possession of the site upon the completion of the works or when the contract is

rescinded or terminated.

• The S.O will give written to the contractor specified such as default and requiring the contractor to remedy such as default with 14 days of the

receipt of the default notice or any period determined by the officer named in appendix .

Events of default

Clause 51.1 (a) (i) contractor fails to commence work within two (2) weeks after date of site possession.

Clause 51.1 (a) (iii) fails to proceed regularly and diligently with the performance of his obligation of contract.

Termination

Site PossessionNotice specifying default Notice of

Termination

Less than 14 days

Less than 14 days or specified period

Contractor does not start work Contractor does not remedy default

CONDITIONS PRECEDENT TO COMMENCEMENT OF WORK

• Clause 38.1

• No work under this contract shall commence unless and until the performance bond…insurances

policy…have been deposited with the government….’

• However, there is the condition precedent, that requires the contractor to provide the following

documents to employer before he can start the work :

- Cover notes and receipts for premium paid of all insurance policies

- Performance bond (is the contractor choose bank guarantee sum as performance

bond & does not choose performance guarantee sum as performance bond )

- Registration numbers for socso schemes ( for workers earning less than

RM 3,000/month)

• The contractor needs to furnish the above documents first to employer, then only he is allowed to enter

the site

• Clause 9.0 – access to the works

Clause 9.1

The architect, consultants and their authorised representatives shall at all times have reasonable access to the works and to

factories, workshops or other places where any construction plant, materials, goods and work are being fabricated, prepared or

stored for the contract…’

Architect, consultants and their representatives may exercise right of access provided under the contract to enter the

construction site after possession.

The right access has been extended beyond the works to such place as factories, workshops or other place where any

construction plant, materials, goods and work are being fabricated prepare or stored for the contract.

Architect and consultant have right to access and permitted to examine, inspect, test and/ or check the manufacture, progress of

manufacture, production, fabrication, etc of all element of works as it deems fit be these on site or off site.

PAM2006

Commencement and completion (Refer to Clause 21.1)

• The contractor must be given full or exclusive possession of the site – the whole site even though some parts may not be needed until a later stage of the project

• The contractor is entitled to assume unrestricted possession of the whole site to enable him to plan his work accordingly – unless there is agreement to the contrary

• The architect will issue instruction to fix the date for site possession if :

A) the date of commencement is not specified

B) the date specified becomes invalidated which is not due to

contractor’s fault

e.g: deferment of possession of site by the employer to A new date

• The architect has the power to defer the possession of site for any reason

• If the date of possession is deferred, the date of completion will be revised accordingly.

PAM2006

Clause 21.1 - ….Delay in giving possession of the site does not exceed the period of delay stated in the appendix, the contractor shall not be entitled to determine his employment under the contract

Period of delay – if none stated in appendix, it shall be a continuous 3 months

If delays not exceeding the period of delay :

- Contractor can claim for EOT

Clause 21.1- …in the event there is delay by the employer in giving site possession of the site to the contractor, the architect shall grant an extension of time..

- He also entitled to claim loss & damages suffered by him

- He cannot terminate his own employment

< 3 months ( period of delay )Original date of site possession

New date of site possession

PAM2006

• If delays exceeding the period of delay :

- contractor can claim for loss & damages suffered by him

- He can choose to proceed with the works or terminate the contract

- If proceed with the works, he entitled for EOT

> 3 months ( period of delay )

Original date of site possession

New date of site possession

PAM2006

Sectional Commencement Dates (Refer to Clause 21.2)

Where there are different dates of commencement for sections of the works, these shall be stated in the appendix

Postponement or suspension of the works (Refer to Clause 21.4)

PAM2006

The architect cannot use his power to order the postponement of any works to justify delay in giving the contractor possession of the site.

COMPARISON BETWEEN P.W.D FORM 203A (REV. 1/2010) AND PAM CONTRACT 2006 (WITH QUANTITIES)

P.W.D FORM 203A (REV. 1/2010)• Clause 11 : inspection of site

• Clause 46 : access for works, etc.

• Clause 38 : possession of site

PAM CONTRACT 2006 (WITH QUANTITIES)• Clause 9 : access for

architect works

• Clause 21 : date of commencement

COMPARISON BETWEEN P.W.D FORM 203A (REV. 1/2010) AND PAM CONTRACT 2006 (WITH QUANTITIES)

P.W.D FORM 203A (REV. 1/2010)

• The extent of possession that must be given to the contractor is not necessarily to be the whole site.

• The contractor must be given a reasonable degree of possession to enable him to commence the work in accordance to programme unless there is agreement to the contrary; execute the work unimpeded by others; and to perform the work in a satisfactory manner based on construction methods desired by him.

• Employer is not deemed to guarantee possession due to events outside his control. For example, employer is not liable if contractor is prevented from gaining access by third party such as unlawful picket.

PAM CONTRACT 2006 (WITH QUANTITIES)

• The contractor must be given full or exclusive possession of the site. Eg: the whole site even though some parts may not be needed until a later stage of the project.

• The contractor is entitled to assume unrestricted possession of the whole site to enable him to plan his works accordingly.

• The architect will issue instruction to fix the date for the site possession if the date of commencement is not specified or deferment of possession of site by the employer to a new date.

site possession

Law