This document discusses site possession in construction contracts. It begins by defining site and possession. It then discusses the contractor's right to enter the site and occupy it from the date of possession until completion. The contractor must be given reasonable possession of the site to carry out the works. The document outlines the process for site possession, including the letter of acceptance, fixing the date for possession, and the contractor's obligations after taking possession. It also discusses delays in giving possession, the contractor's options, and conditions that must be met before commencing work such as providing insurance documents. Overall, the document provides an overview of site possession procedures and the contractor and employer's obligations regarding possession of the construction site.

2. 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.

3. 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

4. INTRODUCTION
Date of
Possesion
Contractor
start work on
site
Date of
Completion
Construction
period
(duration of
possession)
Insuance of
CPC

5. 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

6. 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

7. 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.

8. PROCESS OF SITE POSESSION (CONT’D)
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.

9. PROCESS OF SITE POSESSION (CONT’D)
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.

10. PROCESS OF SITE POSESSION (CONT’D)
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).

11. 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.

12. DELAY IN GIVING SITE POSSESSION
PWD203A (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.

13. 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) :
> 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
Option 1: - Contractor has 2 options
 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

14. 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) (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.

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

16. 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.

17. 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 Possession
Notice specifying default Notice of
Termination
Contractor does not start work Contractor does not remedy default
Less than 14
days
Less than 14 days
or specified period

18. 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

19. PAM2006
• 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.

20. 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.

21. 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 :
Original date of site < 3 months ( period of delay )
possession
- 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
New date of site
possession
PAM2006

22. • If delays exceeding the period of delay :
> 3 months ( period of delay )
Original date of
site possession
- 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
New date of site
possession
PAM2006

23. 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)
 The architect cannot use his power to order the postponement of any works to justify delay in
giving the contractor possession of the site.

24. 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

25. 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.