‘GREENING’ THE PROVISIONS OF CONSTRUCTION CONTRACTS: AN APPRAISAL OF THE PWD, PAM AND CIDB STANDARD FORMS

Abstract

Green building and sustainable design and construction practices (SDC) are at the centre of the Malaysian construction industry’s move towards sustainable development and green growth. One of the most vital aspects of this shift to accommodate the new challenges and innovations in green building with the implementation of the SDC is the contract. However, despite the widespread use of standard forms of contract in Malaysia, both in public and private projects, there is currently no standard form of contract specifically designed for green construction projects. Hence, the impetus of this study is to assess the adequacy of commonly used standard forms of contracts in Malaysia in addressing the specific requirements of the SDC vis-à-vis green building and their associated risks. Towards this end, the study adopts doctrinal legal research methodology to investigate and evaluate the adequacy of the standard forms of contracts under review (Standard Forms) in addressing the requirements peculiar to the SDC vis-a-via green buildings. Within the parameters of this methodology, the study employs ex post facto or descriptive analysis and analytical analysis approaches. The analysis mainly focused on the relevant terms and conditions of the Standard Forms comparatively with the documented requirements of the SDC to highlight the gaps. From the analysis, the inadequacies are apparent. The terms and conditions of the Standard Forms do not adequately provide for the approaches and innovations in green building and the SDC and the legal challenges these approaches and innovations pose to the industry players’ rights and liabilities. This paper provides an analysis of these shortcomings and highlights the areas that require reform.