The Missing Drawings and the Oral Variation

The 14-day certificate looks unsustainable. The contractor's claim has two distinct heads. Late structural drawings are an employer-side event: if the Architect issued information three weeks after the agreed date and that late information was on the critical path, the contractor is entitled to EOT for the actual delay caused, not necessarily the full 21 days. The waterproofing variation is also an employer-side instruction; delay in executing extra work can attract EOT if it delayed completion. The Architect must assess the claim using contemporaneous records and the contract's EOT machinery. Certifying only adverse weather while ignoring the other heads, without reasons, is not a proper assessment. Time at large: if the Architect fails to operate the EOT machinery, or delays beyond the contractual period, the employer may lose the right to levy LDs because the completion date is no longer fixed. This is not automatic; the contractor must show the failure. The employer's LD claim is therefore risky. It must prove the actual delay attributable to the contractor and that the LDs are a genuine pre-estimate. The employer should commission an independent delay analysis before deducting LDs.

The oral instruction is not automatically worthless. PAM contracts require variations to be instructed in writing, but an oral instruction can be valid if given by an authorised person and later confirmed, or if the employer accepts the benefit. The contractor did the work and priced it 10 days later. The Architect's refusal to issue a written instruction is a certification and administration failure, not a magic wand. The contractor should immediately confirm the instruction in writing, refer to the site meeting minutes and the priced variation, and request a retrospective written instruction. The Architect should issue it if the work was authorised and necessary. If the employer denies authorisation, the contractor must rely on the minutes, correspondence and the employer's knowledge and acceptance. Recovery may be through the contract valuation or, alternatively, quantum meruit or estoppel, but those are less certain. The RM2.1 million should not be withheld indefinitely; the Architect should value the work and certify the undisputed portion. Both parties should preserve records.

Suspension is a high-risk step and must follow the contract and CIPAA. A contractor cannot simply down tools because a certificate is unpaid. Under CIPAA, the unpaid party serves a payment claim, the other party serves a payment response or none, and the claimant may refer the dispute to adjudication. If the adjudicator decides in the contractor's favour and the employer still does not pay, CIPAA may permit suspension after the required notice; suspending before that can be a repudiation and expose the contractor to LDs and termination. The contractor should serve a CIPAA payment claim for the RM3.4 million and the variation, keep working under protest while the claim is processed, preserve delay records, and consider adjudication. The employer should respond within the statutory period and pay the adjudicated amount; otherwise it faces enforcement and possible suspension. Both sides should check the contract's notice and suspension clauses. A negotiated payment plan may be cheaper than adjudication, but it should be documented.