| FOCUSING ON |
- Government procurement regime
- Prequalification / tendering process
- Mega projects and parliamentary oversight
- Lopsided contracts / making room for renegotiation
- Termination, suspension or renegotiation?
- Debt-trap diplomacy – myth or reality
- Critical success factors in project execution
- Payment terms / does CIPAA work?
- Dispute settlement – mediation, adjudication, Special Court
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| OBJECTIVES |
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A news portal (www.theedgemarket.com) states that under the 2019 Budget, the Malaysian government intends to pass a Government Procurement Act in 2019 to ensure transparency and open competition, accompanied by open tender practices and punitive action for any abuse of power in relation to contract issuance.
When he tabled the 2019 Budget on Nov 2, 2018, the Finance Minister said: “We intend to table a new Government Procurement Act next year to govern procurement processes to ensure transparency and competition while punishing abuse of power, negligence and corruption. Open tenders will not only achieve more value for money for the taxpayers but will also breed a more efficient and competitive private sector.”
The new Pakatan Harapan government, saddled with an outstanding debt of RM1 trillion, had over the last 12 months since it came into power, suspended, cancelled, deferred and scaled down several ongoing mega projects. The Bandar Malaysia project, earlier abandoned, has now been revived. The ECLR project has been scaled down after a successful renegotiation with China and a supplemental agreement had been signed. The HSR project has been deferred for two years, with Malaysia having to pay compensation to Singapore for the deferment. The MRT3 was earlier scrapped but there is now a possibility that it will be revived.
Apart from addressing these recent events, this seminar will also focus on many other current critical issues affecting the construction sector including the need to have renegotiating clauses in construction contracts, an awareness of the several options available to contractors apart from termination, problems relating to payments, and the resolution of disputes.
According to CIDB chairman Tan Sri Dr Ahmad Tajuddin Ali, the local construction sector is expected to continue to grow in 2019, despite lingering uncertainties concerning mega-infrastructure projects, intense competition and potential consolidation. The industry had declined about 50% in 2018. Works Minister Baru Bian told the media recently that the government “would do its best to spur growth in the construction industry” in the years ahead.
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| WHO SHOULD ATTEND |
- Property Managers
- Marketing Managers
- Builders
- Land Owners
- Legal Advisors
- Investment Advisers & Planning Managers
- Project Managers
- Valuers
- Property Consultants
- Land Administration Managers
- Bankers
- Tax Managers
- Estate Agents
- Surveyors
- Property Developers
- Lawyers and Paralegals
- Financiers
- Contractor
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| COURSE CONTENT |
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- Two basic principles of contract law - freedom of contract, sanctity of contracts
- Government procurement regime – policies, principles, objectives, laws and regulations, categories of government procurement, strengthening the procurement framework, a new Procurement Act?
- Prequalification / the tendering process
- Letter of Intent / MoU / Information Exchange Agreement / Confidentiality Agreement
- Legal challenges to bid awards – transparency, fairness, cartels
- When contracts can be void / voidable - force majeure clauses
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- Mega projects – definition, elements, examples (past / present)
- Parliamentary oversight / public referendum – practice in foreign jurisdictions
- Regime change – principles of continuity and succession
- Lopsided contracts – unusual payment terms, Gas Pipe project “an odious debt”?
- Services and Operations Suspension notices – three projects, on contractors
- Why renegotiation clauses are necessary – “better be safe than be sorry”
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- Global rail connectivity – China’s grand vision “One Belt One Road” (OBOR)
- Debt-trap diplomacy – true or false? lessons from Sri Lanka & other countries
- ECLR – suspension or cancellation (strategic move?),
renegotiation (scaling down / cost reduction), working out the “new deal”
- Bandar Malaysia – failed project (2011), reviving the project
- HSR – from MoU to MoA, suspension, deferment, compensation; do we need a special law?
- Project execution / implementation – critical success factors
- Why projects fail – the missing piece (project leadership)
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- Obligations of successor governments – clean slate v. continuity principle
- Breach of contract – innocent party’s response, duty to mitigate loss, damages and penalties
- Claims - in contract, in quantum meruit, in tort, ex gratia payments; ensuring success and avoiding failure
- Payment to contractors and subcontractors - Construction Industry Payment and Adjudication Act 2012 (CIPAA)
- Resolving construction disputes - litigation, mediation, arbitration, adjudication, and special Construction Courts
- Summing up. Q &A.
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| METHODOLOGY |
| Interactive Lectures, Discussions and Practical Case Studies on all relevant areas to ensure participants grasp clearly issues presented. | |
PROF. DATO’ SALLEH BUANG formerly served as a Federal Counsel in the Attorney- General’s Chambers, Kuala Lumpur, before he left for private practice, then the corporate sector and finally the academia. He was the Deputy-Dean, Kulliyyah of Laws, International Islamic University until 1990, when he went into full-time consulting.