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CONTENTS
BACKGROUND ISSUES
CONTRACTUAL PROVISIONS
ISSUES IN PRACTICE
BACKGROUND ISSUES
LACK OF AWARENESS & PROFESSIONALISM BY PRACTITIONERS.
MOSTLY ARE THE SUBJECT OF ARBITRATION PROCEEDINGS AND
THEREFORE UNLIKELY TO BE VENTILATED IN PUBLIC.
PAUCITY OF LOCAL CASE LAW & CLEAR JUDICIAL PRONOUNCEMENTS.
VERY LITTELE LOCAL REFERENCES, AUTHORITIES, LITERATURE, ETC.
ISSUES PERTAINING TO DELAY & DISRUPTION LEFT TO EXPERTS, LAWYERS
& CLAIMS CONSULTANTS.
ABDICATION OF THEIR ROLES BY CONSTRUCTION
PROFESSIONALS/CONTRACT ADMINISTRATORS.
CONTRACTUAL PROVISIONS
IN STANDARD FORMS OF CONTRACT:
* Generally badly drafted and one-sided.
* Procedures pertaining to application, evaluation & certification tend to
be unclear, incomplete and onerous on the claimant.
* No contractual guidance on the requirements vis--vis application,
evaluation & certification.
* Too much power & leeway without effective sanctions for default given
to evaluators/certifiers.
* Issues pertaining to Disruption either not dealt with at all or merely
glossed over.
* Most comprehensive are the provisions in the PAM 2006 Forms whilst
most concise are the JKR/PWD Forms.
ISSUES IN PRACTICE
Most industry players generally ignorant and lack basic knowledge of the
subject.
Majority of Delay issues are evaluated & resolved on an impressionistic
basis with considerable arm-twisting and without a proper forensic
analysis.
Larger employers in the Public & Private Sector tend to dictate to the
Construction Professionals what should be the claimants entitlements
and the latter are reduced to mere rubber-stamping these decisions.
Often claims pertaining to delay are retrospectively handled well past
completion and even beyond the end of the Defect Liability Period and are
used as part of horse-trading to offset variations and other claims
between the parties; the Construction Professionals usually abetting the
process.
CIPAA 2012 concerned mainly with Payment disputes that can be statutorily
adjudicated.
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