Malaysia
Hong Kong
Indonesia
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ประเทศไทย
BY CHAN KHENG HOE
What are the considerations involved when novating design responsibilities to contractors?
In a traditional building contract, the employer’s consultants undertake the design work, and the contractor executes the physical construction of the building according to the design.
In a traditional design and build contract, the employer prepares a design brief with both architectural as well as engineering requirements. The contractor, then, is responsible for designing the building to fulfil the brief and its requirements. But when the lines are blurred, such as in a hybrid design and build model, then there arises the question of who is responsible for what.
A hybrid model of the design-and-build contract is one where the initial design is commissioned by the employer, and once the initial concept is complete, the contract is awarded to a contractor, and all consultancy agreements between the employer and its consultants would be novated to the contractor.
Singapore has practised this hybrid model quite extensively, whereby the principal architect and quantity surveyor remain engaged by the employer, while all other consultants are novated to the contractor. In this way, the architect’s role is to ensure that the employer’s requirements are fulfilled, while the design responsibility for all other aspects fall under the purview of the contractor instead.
The said hybrid model has been adopted in some instances in Malaysia. There is no “standard practice” in the industry, but instead, different projects novate different aspects of the consultancy agreements. Some projects novate all consultancy agreements (including that of the principal architect), others novate all except the quantity surveyor, who would be responsible to value the progress of works, while yet others may adopt an approach similar to Singapore’s by retaining the principal architect and quantity surveyor.
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CHAN KHENG HOE
Principal, Kheng Hoe Advocates Chan is a Malaysian construction lawyer, focused on construction and building contract disputes.
He is a Fellow of the Chartered Institute of Arbitrators, and a panel arbitrator, adjudicator and mediator with the Asian International Arbitration Centre. He also sits on the Contracts & Practices Committee of the Master Builders’ Association of Malaysia, and has spoken and written extensively on matters related to construction law.
