MCO 03 GO TO WORK NOW, MR. ARCHITECT!
Having to term with the 3rd installments of the extended[i] MCO[ii] with certain services sectors such as the “professional services related to the construction industry including architects […]” allowed to conditionally operate, under a statutory-undertakings to “comply strictly to all requirements from MITI[iii], KKM[iv], MKN[v] and relevant agencies and applicable laws and regulations in this nationwide MCO and Covid19 public health and safety crisis period” In other words, it is important for architects to understand the liabilities annexed to these undertakings while keeping ‘your finger crossed that nothing bad actually happened while in operation’. When such ‘undertakings’ are required, it simply means to say, ‘you are on your own and whatever you do in the contrary will be against the public policy’ as in the advisory, “ACPs are cautioned that should any of the staff gets infected by Covid-19 during work, MITI shall require for the whole office operations to be shut down immediately. The company will be responsible to bear all costs related to addressing the infection. It may involve the costs of testing and to quarantine the staff in contact with the infected person as directed by KKM, and other relevant government authorities.” The same is applied to the contractor, while the developer is ‘off the hook’, due to the ‘indemnity clause’ in most Building Contract, notably the PAM Form[vi].
The recent issuance of PAM advisories[vii] are interesting on twofold. Foremost, “PAM would advise that individual Architectural Consultancy Practices (ACP) shall carefully make their own decision to consider the urgency and readiness of their practice to re-commence work”, the question most ACP would have asked, since when did PAM given a ‘statutory might’, unlike the Board of Architects LAM, to sanction ACP when to commence, halt and re-commence work? The onus is for PAM to collectively obtain a ‘blanket permit’ from MITI for its member to re-commence work. Whether the respective ACP would actually do so are entirely their choices, since a majority of the ACP are ‘small fries’ sole proprietors[viii] that do not employ a huge battalion of workers. Second, “PAM Council wishes to reiterate and emphasize our advice to continue to ‘Work From Home’ as far as possible if there is no urgent and/or essential work that are needed to be performed in the office and/or site”, in contrast to the first advisory, a ‘firm stand’ by saying, ‘no thank you, Mr. PM’, should have been taken, not to say that ‘Work From Home’ is a choice, rather a necessity.
Assuming that the choice of ‘readiness of their practice to re-commence work’ has been made by reasons of ‘pressures’ from ‘whosoever with vested interest’, the recommended guidelines from PAM are rather ‘interesting’ with significant impact to the building construction contract with particular, the PAM Form with regard to additional cost, loss and expenses L&E, regardless if the “Construction works below the value of RM500,000 whereby the main contractors are G1-G2 as certified by CIDB”. The contractor has to remodel the entire construction site with ‘Clean’ and ‘Unclean’ zones. ‘Disinfection Bay’ would have to be considered. Such remodeling of the entire site is no easy task.
Another interesting aspect of the advisory is “PAM reiterates that unless absolutely necessary, the Architect or Principal Submitting Person PSP, Resident Architect and Clerk-of-Work should monitor the project site remotely as much as possible”, application of CCTV and drone for supervision have to be in place and to be provided by the contractor, at whose cost, since these were not reflected in the preliminaries nor the contract? Remember, it was also PAM’s advisory for architects to consider such MCO as force majeure in the evaluation of EOT, having it as ‘neutral event’ that does not entitle the contractor to L&E. Wonder what happened if the area has no or weak WiFi coverage? Wonder if ‘remote supervision’ correspond to the purpose or intention of the UBBL 1984[ix] or s.70(21) SBDA 1974[x] such as “supervise the erection of the building to ensure that the erection is in conformity with the approved plans and the requirements of the provisions of this Act or any by-laws made thereunder”? How is such ‘remote supervision’ works out in terms of ‘professional negligence’ and ‘indemnity insurance coverage’ have yet to be ascertained? Remember, architects can be sued for many reasons.
Assuming that all the additional SOP[xi] is in place and the site has been remodeled with clean/unclean zones with disinfection bays in placed and all workers had to be placed in site with proper designated workers quarters, how are these workers going to don the PPE[xii] against ‘bio hazard’ with PPE against ‘construction hazard’, having to work under the ‘most unforgiving’ environment of the construction site and at the same time, observing the ‘social distancing’? What happen if the cause of the accident is the use of the PPE itself?
While most of the ACP would be having trouble logging into MITI’s webpage[xiii] to apply for the permit, in the absent of CIDB[xiv] clear guidelines and architect’s busy giving ‘instruction’ via ‘social media’, an obvious observations are these ‘written messages’ can be construed as ‘instruction[xv]’ in the eye of the law and any ‘well informed’ contractor will just have to ‘write back[xvi]’ to confirm such instruction.
While considering PAM’s advisory to be worthy, a note of thank had to be accorded to the PAM’s President’s Advisory[xvii], namely “[…] Like our civil servants […] working late into the night and through weekends to address this Covid-19 public health crisis and imminent economic challenges, PAM is also working hard to help our Architects to prevail through these difficult times”.
Having wrote these as a personal reflection or opinion, not as a ‘lawyer’ or a legal counsel, as disclaimer, never take this writing of mine, to be your ‘legal advice’. You should seek appropriate ‘legal advice’ for your own situation. I am not liable for the accuracy of facts and representation on this writing.
[i] Announcement by YAB Prime Minister Tan Sri Muhyiddin Yassin on Friday 10 April 2020 to extend the MCO to 28 April 2020.
[ii] Movement Control Order MCO
[iii] Ministry of International Trade and Industry MITI
[iv] Ministry of Health KKM
[v] National Security Council MKN
[vi] Cl.7.1 PAM 2006
[vii] < https://mcusercontent.com/0f61e9c943c635f9ec3649f2a/files/c1507238-7e9f-4084-a23f-2b923b1d5a2e/PAM_Advisory_for_ACPs_on_operating_permit_to_resume_work_FINAL.pdf>
[ix] Uniform Building ByLaws 1984
[x] Street Building and Drainage Act 1974
[xi] Standard Operating Procedure SOP
[xii] Personal Protection Equipment PPE
[xiv] Construction Industry Development Board CIDB
[xv] Cl.2.0 PAM 2006
[xvi] Art.7(0) CAI, Cl2.2(a) PAM2006
[xvii] < https://mcusercontent.com/0f61e9c943c635f9ec3649f2a/files/12cdc8a9-c336-4315-ac54-137ac3c33402/PAM_Advisory_cover_ltr_PAM_President_14Apr2020.pdf>
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