Knowledge Management

nikzafri · Joined: 10 Jan 2008 Posts: 119

The Star Global Malaysians Forum - Posted: 09 January 2007 at 7:33pm

Question on Performance Bond

Here's something you may like :

http://www.attny.com/gci32djd.html

Construction Surety Bonds In Plain English

This article is an abridged version of Federal Publications?February 1996 CONSTRUCTION BRIEFINGS entitled Surety Bond Basics, copyright 1996 by Federal Publications, Incorporated, written by Messrs. Donohue and Thomas. A complimentary copy of the CONSTRUCTION BRIEFINGS may be obtained by contacting our firm. Subscriptions to CONSTRUCTION BRIEFINGS are available from Federal Publications, Incorporated, 1120 20th Street, N.W., Washington, D.C. 20036. You may call Federal Publications at (202) 337-7000 or (800) 922-4330.

Most construction contractors are familiar with the process of obtaining surety bonds, but they may not be aware of the legal relationships bonds establish the relationships among the principal (the contractor), the obligee (usually the owner) and the surety. Contractors?lawyers, on the other hand, are aware of the rights and the obligations of the principal, obligee, and surety, but they may lack practical knowledge about the process of obtaining bonds. This article is directed to both contractors and their lawyers. It explains in plain English just when construction surety bonds are required on federal, state, and private projects, and the bonding requirements contained in widely used contract forms, including federal government contracts, AIA contract forms, and the AGC subcontract form.

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SOME SURETY BOND BASICS
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A surety bond is not an insurance policy. A surety bond is a guarantee, in which the surety guarantees that the contractor, called the �principal?in the bond, will perform the �obligation?stated in the bond. For example, the �obligation?stated in a bid bond is that the principal will honor its bid; the �obligation?in a performance bond is that the principal will complete the project; and the �obligation?in a payment bond is that the principal will properly pay subcontractors and suppliers. Bonds frequently state, as a �condition,?that if the principal fully performs the stated obligation, then the bond is void; otherwise the bond remains in full force and effect.

If the principal fails to perform the obligation stated in the bond, both the principal and the surety are liable on the bond, and their liability is �joint and several.?That is, either the principal or surety or both may be sued on the bond, and the entire liability may be collected from either the principal or the surety. The amount in which a bond is issued is the �penal sum,?or the �penalty amount,?of the bond. Except in a very limited set of circumstances, the penal sum or penalty amount is the upward limit of liability on the bond.

The person or firm to whom the principal and surety owe their obligation is called the �obligee.?On bid bonds, performance bonds, and payment bonds, the obligee is usually the owner. Where a subcontractor furnishes a bond, however, the obligee may be the owner or the general contractor or both. The people or firms who are entitled to sue on a bond, sometimes called �beneficiaries?of the bond, are usually defined in the language of the bond or in those state and federal statutes that require bonds on public projects.

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TYPES OF SURETY BONDS
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BID BONDS

A bid bond guarantees the owner that the principal will honor its bid and will sign all contract documents if awarded the contract. The owner is the obligee and may sue the principal and the surety to enforce the bond. If the principal refuses to honor its bid, the principal and surety are liable on the bond for any additional costs the owner incurs in reletting the contract. This usually is the difference in dollar amount between the low bid and the second low bid. The penal sum of a bid bond often is ten to twenty percent of the bid amount.

PERFORMANCE BONDS

A performance bond guarantees the owner that the principal will complete the contract according to its terms including price and time. The owner is the obligee of a performance bond, and may sue the principal and the surety on the bond. If the principal defaults, or is terminated for default by the owner, the owner may call upon the surety to complete the contract. Many performance bonds give the surety three choices: completing the contract itself through a completion contractor (taking up the contract); selecting a new contractor to contract directly with the owner; or allowing the owner to complete the work with the surety paying the costs. The penal sum of the performance bond usually is the amount of the prime construction contract, and often is increased when change orders are issued. The penal sum in the bond usually is the upward limit of liability on a performance bond. However, if the surety chooses to complete the work itself through a completing contractor to take up the contract then the penal sum in the bond may not be the limit of its liability. The surety may take the same risk as a contractor in performing the contract.

PAYMENT BONDS

A payment bond guarantees the owner that subcontractors and suppliers will be paid the monies that they are due from the principal. The owner is the obligee; the �beneficiaries?of the bond are the subcontractors and suppliers. Both the obligee and the beneficiaries may sue on the bond. An owner benefits indirectly from a payment bond in that the subcontractors and suppliers are assured of payment and will continue performance. On a private project, the owner may also benefit by providing subcontractors and suppliers a substitute to mechanics?liens. If the principal fails to pay the subcontractors or suppliers, they may collect from the principal or surety under the payment bond, up to the penal sum of the bond. Payments under the bond will deplete the penal sum. The penal sum in a payment bond is often less than the total amount of the prime contract, and is intended to cover anticipated subcontractor and supplier costs.
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SURETY BOND REQUIREMENTS ON FEDERAL PROJECTS
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MILLER ACT AND FAR REQUIREMENTS

The Miller Act, 40 U.S.C. �� 270a-270f, provides that all federal construction contracts performed in the United States must require the contractor to furnish a performance bond in an amount satisfactory to the contracting officer; a payment bond in a penal sum of up to $2.5 million, and other surety bonds as well. In the Federal Acquisition Streamlining Act of 1994, Congress made the Miller Act inapplicable to contracts under $100,000, and directed agencies to develop alternatives to surety bonds for contracts between $25,000 and $100,000. These statutory requirements are implemented in FAR part 28, bonds and insurance. You can get a good introduction to the language and purposes of surety bonds simply by reading FAR part 28.

BID BONDS

A bid guarantee is required on federal projects whenever a performance bond and/or a payment bond is mandated. Bid guarantees usually are in the form of bid bonds, but on federal projects they may also be submitted as a postal money order, certified check, cashier�s check or an irrevocable letter of credit. A bid guarantee must be in an amount equal to at least twenty percent of the bid price; the maximum amount is $3 million. The standard solicitation provision requiring bid guarantees says that if the contractor awarded the contract fails or refuses to execute all contractually required documents, the agency may terminate the contract for default. In such a case, the agency will make a demand on the bid bond or bid guarantee to offset the difference in price between that bid and the next lowest bid. Bid bonds and bid guarantees are returned to unsuccessful bidders after bids are opened; bid guarantees are returned to the successful bidder after all contractually required documents and bonds are executed.

PERFORMANCE BONDS

As amended by the FASA, the Miller Act requires payment bonds and performance bonds for all federal contracts over $100,000. The penal amount of the performance bond is generally one hundred percent of the contract amount, and the penal sum is generally increased for each change order. The surety is entitled to receive information from the contracting officer concerning the progress of the work, payments, and estimated percentages of completion whenever it so requests in writing. The form of the Miller Act performance bond is set out at FAR 53.301-25.

PAYMENT BONDS

Payment bonds are now required for all federal construction contracts over $100,000. The penal amount of the payment bond is required to be a maximum of $2.5 million where the contract price is more than $5 million; for contracts less than $5 million, the penal sum of the payment bond is to be forty to fifty percent of the contract price. Each solicitation must state that a payment bond and performance bond are required, the penal amount required for the bonds, and the deadline by which bonds must be submitted after contract award. The form for a Miller Act payment bond is at FAR 53.301-25-A. The bond form does not set out any time limitations for claims against the bond. However, the Miller Act provides that suits against a payment bond must be brought within one year after the date on which the last of the labor was performed or material was supplied. In addition, the Miller Act requires that second-tier subcontractors and others who do not have a direct contract with the prime contractor submit a written notice of their claim to the prime contractor with ninety days of the last date of their work on the project.

REQUIREMENTS FOR QUALIFIED SURETIES

Federal surety bond requirements may be met in three ways: surety bonds issued by an approved corporate surety; surety bonds issued by an individual surety who pledges certain defined types of assets; or by the contractor pledging assets directly. The third option is uncommon.

REQUIREMENTS FOR INDIVIDUAL SURETIES

Individuals may act as sureties to satisfy bonding requirements on federal projects if they have certain acceptable assets in the required amounts to support the bonds. Although federal agencies probably would prefer to deal only with approved corporate sureties, allowance for individual sureties may enhance competition by allowing awards to contractors that might not otherwise qualify to obtain bonds from an approved corporate surety.

To support bonds issued by individual sureties, agencies may only accept cash, readily marketable assets, or irrevocable letters of credit from a federally insured financial institution. Acceptable assets include cash, certificates of deposit or other cash equivalents; U.S. agency securities (valued at current market value); stocks and bonds traded on the New York, American and certain other exchanges, valued at ninety percent of their current 52-week low price; real property owned outright in fee simple, valued at one hundred percent of its current tax assessment value; and irrevocable letters of credit issued by federally insured financial institutions. Examples of unacceptable assets are also listed in the regulations. Unacceptable assets are those that may be difficult to liquidate (e.g., a life estate in real property); are of uncertain or greatly fluctuating value (e.g., jewelry); property commonly exempt from attachment under state laws (e.g., the individual surety�s home); or commonly pledged to others (e.g., plant and equipment). An individual surety is required to submit an affidavit, in which the surety identifies the assets, the market value of the assets, and all encumbrances on the assets. The affidavit must also identify all other bonds issued by the individual surety within the last three years.

TREASURY LIST OF APPROVED CORPORATE SURETIES

By far the most common means of satisfying federal bonding requirements is by a bond issued by a corporate surety. The Department of the Treasury maintains a list of corporate sureties approved to issue bonds for federal projects, Treasury Department Circular 570. Copies may be obtained from the agency. The circular also is posted in the Treasury�s computerized bulletin board at (202) 874-6817, and on Treasury�s Web site at http://www.ustreas.gov/. Whenever a new corporate surety is added to the approved list, a notice is published in the Federal Register. Contracting officers are prohibited from accepting surety bonds issued by corporate sureties not listed in Treasury Circular 570. The circular lists the name and address of each approved surety and all states where each surety is licensed.

When approving corporate sureties, Treasury makes a determination as to the financial strength of the surety, and sets an underwriting limit, commonly called a bonding limit. The bonding limit is also stated in Circular 570. When an approved surety offers a bond on a federal project, the contracting officer checks to make sure that the surety has not exceeded the surety�s bonding limit. Because of these underwriting limits, surety bonds on very large construction projects, valued in the hundreds of millions of dollars, frequently are issued by several different approved surety companies, acting as co-sureties. The name of each co-surety will appear on the bond, along with its individual limit of liability.

Another way surety companies can stay within their approved surety underwriting limit, and spread their risk, is to obtain coinsurance or reinsurance, in which they essentially obtain a contract from another surety company to cover part of their risk on the bond they have issued. When a surety obtains reinsurance for part of its risk under a Miller Act bond, it must submit to the contracting officer a reinsurance agreement for a Miller Act performance bond and a reinsurance agreement for a Miller Act payment bond. The terms of both reinsurance agreements are stipulated in the regulations.
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SURETY BOND REQUIREMENTS ON STATE PROJECTS-�LITTLE MILLER ACTS
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Statutes in all fifty states and the District of Columbia require performance and payment bonds for state government construction contracts. These state statutes often are called �Little Miller Acts?because many of them are modeled after the federal Miller Act. Useful information is available from the National Association of Surety Bond Producers. A good discussion of these Little Miller Acts is in Federal Publication�s CONSTRUCTION BRIEFING, Little Miller Acts. A fairly recent summary listing of these state statutes, along with citations, is in Bednar, et al., CONSTRUCTION CONTRACTING, George Washington University (1991), at 1309a-1309r. We will not duplicate these discussions. Each state licenses sureties to issue bonds. The Little Miller Acts each require bonds by licensed sureties. You can identify sureties licensed in particular states by checking Circular 570 on the computer bulletin board and at Treasury�s World Wide Web site.

SURETY BOND REQUIREMENTS IN PRIVATE CONSTRUCTION PROJECTS

There obviously is a great variation among private construction owners and projects throughout the United States. Performance bonds and payment bonds are required by owners for most large construction projects. If the owner elects to require surety bonds, major issues for the owner to decide during project planning are:

WHAT BONDS SHOULD BE REQUIRED?

Performance bonds protect the owner from contractor default and delays, and these are important for commercial properties with fixed tenant availability dates. Payment bonds protect the property from mechanics?liens, which might otherwise interfere with sale or refinancing of the property. Bid bonds, which generally address only the price-spread between the low and next to lowest bid price, serve a much narrower purpose. However, because of the expectations and requirements of the bid package, corporate sureties generally will issue bid bonds only to contractors who qualify for performance and payments bonds. Thus a requirement for a bid bond may help narrow the field of bidders to only those firms who can actually satisfy performance and payment bond requirements.

WHAT SURETY COMPANIES ARE ACCEPTABLE TO THE OWNER?

Since a surety bond essentially is a guarantee by the surety, the owner has an interest in deciding which sureties are acceptable. One means of identifying responsible sureties is to refer to the list of sureties approved in Circular 570.

WHO PAYS THE BOND PREMIUM?

Of course, the owner eventually pays all costs anticipated in the contractor�s bid, whether the project is fixed-price or is a cost-plus-fee arrangement. A private owner may want to provide separate reimbursement for the contractor�s bond premium cost when the bond is delivered to the owner. This procedure ensures that bonds actually are furnished.

SPECIFYING THE AMOUNT OF BONDS.

Premiums rise along with the penal sum of the bond, and the owner ultimately pays these costs in the contract price. Nonetheless, the owner has an interest in setting the bond penal sum high enough to provide the desired protection to the project. A fairly good guideline for setting penal sums is the FAR requirement discussed hereinabove. The penal sum for the performance bond should be one hundred percent of the original contract price, and the penal sum should be increased for each change order. The payment bond should be fifty percent of the contract price up to some fairly large maximum penal sum.
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SURETY BOND PROVISIONS OF STANDARD FORM CONTRACTS
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Popular form contracts for private construction projects, those published by the American Institute of Architects (AIA) and the Associated General Contractors of America (AGC), leave bonding requirements to the choice of the parties. Thus these forms do not provide much guidance in deciding the issues we have identified. The current AIA General Conditions merely provide that the owner may require bonds elsewhere in the contract documents and that the contractor must furnish copies of the bonds upon request to any bond beneficiary (e.g., subcontractors or suppliers). AIA Document A-201 also provides that compensation for construction change directives ordered by the owner shall include bond premiums for the extra work. AIA�s current owner-contractor agreement, AIA Document A-101, does not address surety bonds at all. AIA�s contractor-subcontractor agreement, AIA Document A-401, addresses bonding requirements in article 7 by leaving a blank area for the parties to add any bonding requirements.

The current AGC Standard Form for Construction Subcontract, also endorsed by the American Subcontractors Association and the Associated Specialty Contractors, addresses surety bonds in article 5. Paragraph 5.1 provides that copies of the contractor�s payment and performance bonds must be furnished to a subcontractor on request. Paragraph 5.2, �Subcontractor Bonds,?provides that if bonds are required from the subcontractor, the subcontractor shall be reimbursed for surety bond premiums in the first progress payment. Performance and payment bonds must be in the full amount of the subcontract price, unless otherwise stated.

PROVISIONS OF STANDARD AIA BOND FORMS

Private construction contracts rarely require particular bond language. Rather, they usually require bonds in a specified amount with a surety acceptable to the owner, general contractor or other obligee. The AIA�s bond forms, AIA Documents A-311 and A-312, are popular and instructive; thus their provisions merit a brief discussion.

AIA�s performance bond form, AIA Document 311, provides that the surety waives notice of change orders and extensions of time. It says that the owner is the only person who can sue to enforce the performance bond, and that any such suit must be brought within two years from the date final payment is due under the contract. It also provides, if the owner declares the contractor in default, that the surety shall either complete the contract or, if the owner elects, shall obtain bids so that the owner may contract directly with a completion contractor with the surety providing funds sufficient for completion.

AIA�s labor and material payment bond form, AIA Document A-311, is very similar to the Miller Act payment bond required for federal projects. It defines a �claimant?as a person or firm that has a direct contract with either the principal or a subcontractor to the principal. Thus in the typical case where the principal is the general contractor, claimants under AIA payment bonds are limited to subcontractors and suppliers who furnish labor and materials directly to the general contractor or directly to a subcontractor. Claimants are entitled to sue on the bond if they have not been paid within ninety days after the last day of their work on the contract. Claimants that do not have a direct contract with the principal (e.g., second-tier subcontractors) must give a written notice to the owner and the surety within ninety days of the last day of their work advising that the claimant has not been paid. Suits on the payment bond must be brought within one year of the principal�s last day of work on the project. (This is different from bonds under the Miller Act, which requires that suits be filed within one year of the claimant�s last day of work on the project.) Suits must be filed in a state or federal court for the county in which the project was located.

AIA�s combination performance bond and payment bond, AIA Document A-312, is similar to the separate bonds described above, but this one adds some additional provisions. The performance bond contains requirements that the owner give the surety written notice before declaring the contractor in default, and provides for a meeting of the parties within fifteen days of that notice to discuss performance. The performance bond also gives the surety the option of having its principal complete the project, notwithstanding the default, if the owner consents. This probably would be done with financing or other assistance contributed by the surety. The payment bond in AIA Document A-312 requires that claimants that do not have a direct contract with the principal take action in set time frames. Such a claimant must give written notice to the principal that it has not been paid; wait thirty days for the principal�s response, and then notify the surety in writing that it intends to make a claim on the bond. It also requires the surety, within forty-five days of such notice, to pay all undisputed amounts and to respond regarding any disputed amounts.
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CONCLUSION
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If the terminology of construction surety bonds is confusing at first, you may want to keep this guide as a reference. Surety bonds are required for most large construction projects in the United States and now more frequently they are required in other countries. Our next article will review the process of obtaining surety bonds, the choices contractors have among surety companies, and the agreements typically entered into between contractors and sureties when construction surety bonds are issued.

Dan Donohue and George Thomas, Assistant Vice-President, Contract Surety Claims, Fireman�s Fund Insurance Company

Copyright 1996 Kilcullen, Wilson & Kilcullen. All rights reserved.

nikzafri · Joined: 10 Jan 2008 Posts: 119

The Star Global Malaysians Forum - Posted: 20 September 2006 at 5:31pm

The Star News (Courts) - September 20, 2006.

Judge: Firm did not commit offence

KUALA LUMPUR: It was a case of the wrong entity charged. A Sessions Court yesterday discharged and acquitted a subcontractor accused of a negligence that led to the death of corporate consultant Dr Liew Boon-Horng. In delivering his verdict, Judge Akhtar Tahir said he found that MWE Advance Structure Sdn Bhd had not committed any offence as framed against it under Section 20(3) of Occupational Safety and Health Act 1994.

(The section states that the person who erects or installs any plant for use by persons at work must ensure that nothing about the way it is erected or installed makes it unsafe or a risk to health when properly used.)

MWE Advance Structure was charged with failing to ensure the safe installation of a steel formwork by Higro Enterprise on the 20th floor of Block B, Plaza Damas. A representative of the company had on April 20 pleaded not guilty to the charge.

(Formworks are moulds into which concrete or similar materials are poured into at a construction site.)

Akhtar said Section 20(3) of the Act did not mention that the person who allowed the installation of the steel formwork to have committed an offence.

(The company had engaged Higro Enterprise as a specialist formwork contractor for the Plaza Damas condominium project).

Dr Liew, 35, managing consultant of Ethos Consultant, was killed when an iron mould, weighing almost two tonnes, fell onto his BMW as it was being driven into the car park of Plaza Damas last Dec 30. Akhtar said he was of the opinion that it was Higro Enterprise that had committed the offence under Section 20(3) of the Act.

"Based on the charge, the installation of the steel formwork was done by another party, which is Higro.

"It is my opinion that Higro had committed the offence and not MWE Advance Structure.

"Therefore, I have to give an acquittal to MWE Advance Structure because this offence did not exist," he said.

The judge gave his decision after hearing a preliminary objection raised by the company�s lawyer Rosli Dahlan on Sept 4, that the charge framed against MWE Advance Structure was defective. In the same court, supplier Simple Formwork Construction Sdn Bhd had claimed trial to failing to take the necessary steps to ensure that the steel formwork supplied to Higro Enterprise was safe for use.
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It's NOT my intention to question the judge's final ruling and I respect the court's final decision. (unless both Higro/Simple Formwork wish to contest the decision)

Alas, I'm a bit confused on charges especially being made on Simple Formwork and Higro Enterprise. I might be wrong but :

What is the real problem actually?

"Based on the charge, the installation of the steel formwork was done by another party, which is Higro.

"It is my opinion that Higro had committed the offence and not MWE Advance Structure.

"Therefore, I have to give an acquittal to MWE Advance Structure because this offence did not exist," he said.

MWE is the main contractor - (thus, it's a lesson for them that in the future), they should have a system that takes into account :

a) Criterions of selection of sub-contractors (including Higro),

b) Sample submission/inspection and test results (prior to installation) from Higro to MWE (as part/parts of contract requirements),

b) Criterions of annual performance appraisal of the sub-contractors,

c) Monitoring system during installation process.

Remember, failure in sub-contractor's work may also reflect the failure of the main contractor as well.

And where does The Client's (Client to MWE) responsibility fall under?

Excerpts from New Straight Times - 03/01/2006

On Sunday, visiting the Sri Hartamas crime scene � for that is what it may well out turn out to be � Fong had occasion to see red. Seven warnings had been served for various safety violations in the 26 months since work on the office and apartment building began. Residents, as in many other instances, complained of flying debris and noise. The contractor�s delinquency seems to have been evident enough to leave nothing amiss in the Department of Occupational Safety and Health�s inspection procedures, which gave the company a "D" for compliance. "This clearly indicated no commitment on the part of the management to adhere to the regulations and prioritise safety," said Fong.

Another excerpt - NST 02/01/2006

Failed: seven out of nine worksite inspections. That�s the safety record of the construction company in charge of the worksite from which a cement mould fell 20 storeys and crushed a management consultant to death in his car.The company, MWE Advance Structure Sdn Bhd, was served seven stop-work orders in the 26 months since construction work on Block B of the Plaza Damas serviced apartments began. It was allowed to resume work after each breach was rectified, said Human Resources Minister Datuk Seri Dr Fong Chan Onn.

The company is a unit of listed group MWE Holdings Bhd.

"MWE (Advance Structure) did not have a good safety history," said Fong.

The company was given a safety rating of D, E being the lowest rating by the Department of Occupational Safety and Health. Fong did not say what the ranking indicated.The company had also been served three compounds for safety breaches since work started on Oct 28, 2003. The last inspection before Friday�s tragic accident was on Sept 27, 2005. Among the main offences were unsafe scaffolding and the absence of guardrails. Also, load platforms had not been designed by certified engineers, and they had used unregistered heavy machinery.

On Simple Formwork - they were separately being charged for failing to take the *necessary steps* to ensure that the steel formwork supplied to Higro was safe to use.

Questions :

"Who charged Simple Formwork? Higro?", "What's the relationship between Higro and Simple Formwork? - Is Simple Formwork another supplier to Higro?"

The *necessary steps* as I understand them are (not limited to the following) :

method statement, work/manufacturer's instruction, standards and codes of practice, monitoring and follow-up, sample submission, proper inspections, specification adherence etc.

If Simple Formwork seem to have all these, then check again, it may be problems of insufficient/unsuitable installation methods or monitoring/follow-up from them on Higro during installation process.

On Higro, if I read the first news right, it says something like :

(The company had engaged Higro Enterprise as a specialist formwork contractor for the Plaza Damas condominium project).

and

In the same court, supplier Simple Formwork Construction Sdn Bhd had claimed trial to failing to take the necessary steps to ensure that the steel formwork supplied to Higro Enterprise was safe for use.

It's odd that Higro failed to realize during installation that the 'formwork is NO GOOD?" being a specialist?

The charges on Higro is 'fail to ensure steel formwork properly installed'

The charges for Simple Formwork is 'formwork is found not safe to use?'

How do I connect the two?

Actually, nobody thought that the tragedy will happen on the first place - that's why too many parties 'took for granted' on the 'specs' I've mentioned above. When everybody got the 'sudden electrical shock' due to this unexpected fatal accident, I hope it's not the typical 'finger pointing' under the pretext of law that is happening at the moment.
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Posted: 22 September 2006 at 9:37pm

Well, it appears that my last message has drawn so many attention from so many parties. Some were good, some were inquisitive/curious and some simply asked me to 'reconsider' my comments. Please register as GMN members and put your comments here and we can start a whole new 'show' in a more healthier way. The following is one of them (good ones) that appeared in another forum.

Assalaamu'alaikum wbr.

Terlebih dahulu, izinkan saya merakamkan tahniah kepada tuan/puan semua kerana terlibat dalam forum ______. Ini merupakan tanda betapa tingginya keprihatinan/perjuangan tuan/puan semua terhadap keselamatan dan kesihatan pekerjaan di Malaysia.

Walaupun saya tidak pernah terlibat secara aktif dalam forum ini, namun kita semua mempunyai matlamat yang sama demi 'menyelamatkan seberapa banyak nyawa' di tempat kerja menerusi sistem pengurusan keselamatan dan kesihatan pekerjaan yang dipayungi oleh Akta Keselamatan dan Kesihatan Pekerjaan 1994.

Saya ingin menarik perhatian kepada e-mail yang dihantar oleh saudara____ (____) dan pendapat beliau serta lain-lain pendapat bernas dalam forum ini hasil daripada komen saya di Global Malaysian Forum di bawah kelolaan akhbar The Star. (saya sarankan _____ membaca lain-lain komen dalam forum yang sama dan tidaklah hanya melihat kepada komen berkenaan sahaja, kerana saya telah mengikuti kes ini semenjak ianya bermula lagi)

a. Saya tidak mewakili dan tidak pernah terlibat dengan mana-mana pihak dalam Plaza Damas,

b. Pendapat saya adalah pendapat peribadi serta bukanlah ingin mempersoalkan kes yang sedang dibicarakan atau mempersoalkan keputusan mahkamah sepertimana dakwaan ______ (perkara ini juga telah saya jelaskan kepada beberapa pihak tertentu yang memberikan maklumbalas terhadap komen saya dan semuanya saya kira telah diselesaikan) Pendapat saya lebih kepada mengingatkan kontraktor utama supaya menyemak semula sistem untuk ditingkatkan (terutamanya dalam aspek pemantauan dan penilaian yang lebih efektif)

c. Saya tidak pernah mengenali mangsa secara rapat - cuma kebetulan mendiang pernah terlibat dalam pembikinan KPI untuk GLC di mana saya juga terlibat dalam perkara yang sama tetapi menerusi firma perundingan yang berbeza,

d. Saya bersetuju dan telah menyimpulkan dalam pendapat berkenaan bahawa - kemungkinan ada elemen 'tuding-menuding' atau 'tuduh-menuduh' (blaming culture/fingerpointing) sedang berlaku (seperti kebiasaan). Saya harap undang-undang dapat menyelesaikan masalah ini seadil-adilnya supaya tidak ada pihak yang tidak bersalah tiba-tiba dipersalahkan pula.

e. Cuma saya juga mengharapkan agar pihak klien - kontraktor utama - sabkontraktor/vendor/pembekal tidak mengamalkan sikap mengambil mudah terhadap pelaksanaan keselamatan & kesihatan pekerjaan - walaupun telah ada ribuan sijil/persijilan sekalipun atau dokumentasi yang 'canggih' atau pernyataan dasar yang begitu indah dan lain-lain.

Walaubagaimanapun, saya ingin merakamkan ucapan terima kasih sekali lagi kepada tuan/puan semua dan _____ kerana sudi membaca pendapat saya yang tidak seberapa itu.

Wassalaamu'alaikum wbr.

Salam Hormat Seperjuangan
Nik Zafri

nikzafri · Joined: 10 Jan 2008 Posts: 119

The Star Global Malaysians Forum - Posted: 13 September 2006 at 8:36pm

Question by stingray2000

Hi Nik, I'm have a zero knowledge on the construction/building. But I just wonder how to build a house/apartment on the land rising on the sea? Is the any website for the beginner ?
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Posted: 13 September 2006 at 8:46pm

Nik Zafri's response

I'm sure you've been to resorts/hotels near the sea? The concept is very much the same. Before I answer to your queries...I'm curious...why would you want to build one when you can easily find lots of finished properties near the sea?
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Posted: 13 September 2006 at 8:57pm |

Stingray2000's response

Just for my curiousity, I would like to know more about the concept of raising the land from the sea in malaysia? I heard from rumours that the housing build on the sea will have potential problem(land sinking etc) later on...have you seen this issue before ? It remind me the collapse of condominium case ...

Just for my curiousity, I would like to know more about the concept of raising the land from the sea in malaysia? I heard from rumours that the housing build on the sea will have potential problem(land sinking etc) later on...have you seen this issue before ? It remind me the collapse of condominium case ...
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Posted: 13 September 2006 at 9:48pm

Nik Zafri's Response :

Exactly why I asked. And it's pretty costly as well - in the context of raising the land - dredging expenditures - perhaps may require more sand as well for filling (of course - bays would become deeper/wider increasing erosion - not to mention disturbing inhabitants of marine life around the offshore sand deposits)

Not only houses & condominiums but chalets, hotels etc. using the similar concept are also facing the same risks. (I'm sure they are all well-aware of that)

We can only try our best to prevent such negative effects like planting more big trees - coconut/palm, 'sophisticated' soil treatment (vs shrinkage), drive the concrete foundation piles deeply into the sand, pile caps supporting casting concrete piers, floor slabs supported by masonry shear walls/steel tube columns etc.

But again, the 'force of nature' can be too strong sometimes and I do pity those businesses like hotels, chalets, yacth clubs, marinas because I love these places for good vacations and scenic views but I have also noticed the cost of maintenance and possible migration everytime I visited them - but what to do? What if I'm in their shoes? Tourism business is 'damn' good and it a definite money-generator and the profit will at least 'top up' the maintenance/migration costs. (I'm being positive here actually)

Some of the tips I can give to you are (besides what I've mentioned in the 2nd para) - be 'alert' on certain climate shift, atmospheric conditions (ie temperatures), news/history of disasters, rain pour, possible erosions, researches on greenhouse effects, inundation, type of barriers/dikes/polders used near the seaside, pumping system (sand/sea water) etc. - in short you should start some serious homeworks if you plan to buy or build one.

Good luck.

nikzafri · Joined: 10 Jan 2008 Posts: 119

The Star Global Malaysians Forum

nikzafri · Joined: 10 Jan 2008 Posts: 119

The Star Global Malaysians Forum - Posted: 24 August 2006 at 11:46pm

Nik Zafri Posted :

Someone has asked me to define what is PFI in the construction industry. I know that this question is very much related to the previous 9MP. So here's what wikipedia says:

The Private Finance Initiative specifies a method, developed initially by the United Kingdom government, to provides financial support for "Public Private Partnerships" (PPPs) between the public and private sectors. This has now been adopted by parts of Canada, France, the Netherlands, Portugal, Ireland, Norway, Finland, Australia, Japan and Singapore amongst others) as part of a wider reform program for the delivery of public services. en.wikipedia.org/wiki/PFI

Besides than PFI, I'm sure you all have heard of these :

a) Design and Build, b) Turnkey, c) EPCC, d) Conventional,

Thus, PFI is an additional to these..
---------------------------------------

nikzafri · Joined: 10 Jan 2008 Posts: 119

The Star Global Malaysians Forum - Posted: 22 June 2006 at 12:52pm

nikzafri · Joined: 10 Jan 2008 Posts: 119

The Star Global Malaysians Forum - Posted: 06 August 2006 at 8:36pm

nikzafri · Joined: 10 Jan 2008 Posts: 119

Posted: 02 August 2006 at 4:21pm

The construction world in Malaysia is known to be volatile or sometimes �erratic�. Only the �strongest will survive� these days. Failures after failures keep happening, we can see for ourselves while travelling or read about abandoned projects. We have also heard about projects (mega projects) running behind time, cost overrun etc. To aggravate the situation further, tools like KPI (or ISO certification) have been created 'in a hurry' - merely/ironically serve as 'pathetic' attempts to repair the damages that have already been done. Reactive NOT proactive.

But the clients are much the same. Nowadays, they tend to feel that payment/surety bonds, bid, etc. are too much for contractors to handle, thus, the client took unwanted risks by letting the contractors (cronies) in and start the project - �pay later� or �tip-off� the contractor to go on some �back-to-back� mode. Thus, what�s the need of a complete prequalification process except for �formality�?

Failure to understand this issue will lead to MORE trouble :

- Improper cashflow management, no profit margin, losses start to happen, tons of overdue bills etc.
- Suppliers/Vendors asking for COD otherwise no construction material will be dispatched,
- Slow receivables,
- No more credit from banking/financial institutions,
- Bad job cost reporting � low job-bidding, inferior capacity in bonding, loss in operation, no revenue,
- Lead time too short for bidding,
- Legal actions to attend to,
- Dire-lack of supervision,
- Improper contract administration
- Project behind time
- Non-Workable contigency plan if there�s even any
- Increased rate of dispute
- Communication breakdown

Of course, I can tell you more but I�m pretty sure that the contractors understand exactly what I mean

nikzafri · Joined: 10 Jan 2008 Posts: 119

The Star Global Malaysians Forum - Posted: 03 June 2006 at 8:32pm

I'm getting weary and exhausted talking too much on the never ending issues of landslides/structural integrity failure/OSH/EMS nationwide be it from an engineering nature involving C & S, M & E, O & G, Plumbing or the way the projects are going to be done - conventional, PIF, Turnkey, D & B etc. All these extremely sad tragedies although different in nature but the rootcauses are much the same.

a) Everytime when higher authorities say - the contractor/developer is at fault, they are pointing back to themselves as smart people will ask :

i) "What is your selection criterion of a main contractor/developer?"

b) When the developer/contractor dare to postpone their contracted works and does not fear higher authorities stern warning, then smart people will ask:

i) "How come the higher authorities warning(s) are not being heeded? Is the contractor having more 'superior power' (quote/unquote) than authorities? or because some 'back door' arrangements have transpired? In short...who hired the contractor/developer on the first place?

ii) Or because the progress payment have been delayed for unknown reasons? - Then the contractor/developer would say; as I would also say; No Money No Work!

iii) Specifications are not being adhered to by the contractor/developer? Is there not continual supervision and surveillance from the authorities? Is there a some sort of a design brief prepared?

iv) Assuming the contractor/developer is known to be delaying/postponing the project? How do you account this issue of 'late delivery' in your 'Annual Assessment of the Contractor/Developer?"

- "or the assessment has been marked with 'straight As' in contrast to high reports of defects/complaints from all parties including the general public?" (where is the so-called 'social corporate responsibility'?)

- "or is there an annual performance assessment practice in place?"

- or did the authorities issue some sort of NCR to the Contractor/Developer for regular 'behind schedule delivery'? If so...how did the contractor reacts to the NCR?

- "did we do a proper trend analysis or product non-conformance & workmanship - Is there some sort of action plan - what to do next as a result of repetitive trend?"

c) What about the criterions for a proper site investigation that may include 'soil testing' especially in hilly areas? and is there a proactive contigency plan coupled with the relevant construction standards to cope up (repair/preventive action) with the forecasted problems should the results found to be not in favour?

d) Did or did not the developer submitted the preliminary test results, samples/construction mock-up plan, project quality/safety/environmental plans for approval by the relevant authorities? or mobilise first to site then submit? or have submitted but found to be inadequate (but yet approved with blind eyes or no one knows what's this technical documents are all about?)

- or are these practices in place?

e) How about past researches of the similar occurrences? Are these datum been taken into account during phases of pre-tender, tender/contract, post-tender, pre-construction, operation and post-construction?

f) The BEST part is that : "Why isn't there STOP WORK ORDERS when you have proactively seen the potential hazard that may have caused fatality?" "Is there adequate 'competent experienced technical enforcer' to forecast this issue and attempt as far as practicable to prevent the tragedy?" (proactive evacuation maybe?)

g) and as usual, Nik would say - there's a lot more where the abovementioned issues come from.

Someone once walked up to me and said :

"If you think you're good enough, why don't YOU do it?"

I replied :

** "Give me the consultancy job (with payment not as big as you've been paying the BIG 5 Consultants) and I'll show you how my team do a far better job than your BIG 5 Consultants!" **

p.s. - ** this IS an open challenge!
----------------------------
Posted: 04 June 2006

Although I'm sick listening to the same old stories, I'm not givin up hope yet. Imagine :

Hulu Klang alone

a) 1993 - Highland Towers

b) 1996 - Athenaeum Tower, Bukit Antarabangsa

c) 2002 - Hillview

d) 2006 - present - Kg Pasir

How many more incidents can we tolerate? How many more people have to die? Is this a new kind of 'stone age thinking' that we have to make 'human life sacrifices' in order to make other people happy?
---------------------------
Posted: 04 June 2006 at 7:45pm

Memory serves...I 'dig in' my personal collection just now..to find this very interesting article from THE MALAY MAIL DATED 15 APRIL, 2005, FRIDAY, PAGE 12

KUALA LUMPUR: A comprehensive study on slope stability and gradient, including checks on the seven rubble walls on the upper parts of Ampang-Hulu Klang has been completed. The study was carried out by the Public Works Department (PWD) after eight people died in a bungalow in Taman Hillview. The house, belonging to retired General Tan Sri Ismail Omar, collapsed in a landslide on Nov 20, 2002.

Before that, on Dec 11, 1993, two blocks of the 12-storey Highland Towers collapsed, killing 48 people. The existing rubble walls are more than 20 years old and should be replaced.

Sources told The Malay Mail that the paperwork for a tender to build new walls has also been completed and it is awaiting approval from the Works Ministry.

"The main setback is that the land owners where the rubble walls are, refuse to bear the costs of building the new retaining walls," said a source yesterday.

That being the case, the PWD will first have to bear the cost, estimated at RM12 million, and then bill the land owners once they decide to develop their respective land.

"Alternatively, the Federal Government can revoke the land from the individual owners for future plans," said the source.

In 2003, besides building retaining walls, the Geoscience and Mineral Department and Ikram Berhad had proposed other measures to strengthen the slopes and terrain in the area. These include building 'interceptor' drains linked to the existing drainage system so that water from the hilly area can be chanelled directly into the system, stabilising the part of the hilly area and re-channel the river flow south-bound to avoid the residential area.

A team from Ikram Infrastructure Research Centre was entrusted to do a comprehensive study on the area's slope stability and gradient. Their study stretched over 110-sq km from Klang Gates in Hulu Klang to Bukit Sungai Puteh near Cheras. Ikram had also proposed classification methods to identify areas that are suitable for development, controlled development, or no development at all. They had also recommended minimum hill-cutting for low-density development and for the development to follow the original contour of a hill.
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Posted: 04 June 2006 at 8:25pm

This is a must see - compliments from Geu and Partners Sdn. Bhd. (1999) (Geotechnical Engineering Consultants)

EARTHWORKS SPECIFICATION FOR HILL-SITE DEVELOPMENT
--------------------------
Posted: 05 June 2006 at 8:52pm

The actual points that I'm trying to say are these :

a) Before we start finger-pointing sessions, we should consider many aspects like approval, adequacy/compliance of clauses of contracts/tender requirements (favour/infavour), selection criterions, performance assessment, supervision etc.

b) If you understand where I'm heading, you will know that, the report/research/standard & last year's news that I've inserted here are merely to point out :

i) Since we are so proud claiming that we have done so many researches,

- why is the same tragedy reoccurring at the same area? What good of a research if not to be complied with? follow-up/verification/monitoring/surveillance/continual improvement? What's the point of having so many researches if they are not being applied?/enforced? or at least minimized recurrences.

- Is the research only for formality? The end-result....what is the end-result? compliance? enforcement? otherwise the research will only serve only as a static information of no use at all!

- Is the research only for one tragedy per se? e.g. Hillview's research is for Hillview only? or Highland Tower's research is only for Highland Tower? Don't you think this is a bit funny? If this is the case, then it's as good as we are still adopting the 'firefighting attitude', 'correction instead of prevention', 'reactive rather than proactive', 'taking action after something has happened' - even under the pretext of follow-up research? Then, after that 'we consider the matter is closed'

- Are we really helping to make things right or we are actually aggravating situation further?

Mind you, I'm not blaming the researcher/research, engineers, consultants, codes of practice/standards, manuals, plans, work instructions, method statements, drawings, checklists etc. as I'm well aware of their geotechnical engineering qualifications/backgrounds (no joke...maa) especially when it comes to researches especially hill-site development and slope stabilization.

You'll be surprised Brigitte to learn that based only on my humble experience of process/business/quality/safety/environment - auditing/assessments/inspections, that most of these 'papers' are actually INTACT (so nicely) but the implementation part actually another story! (a total different story!)

I'm sad to learn the fact that we've also organised so many world-class engineering conventions to discuss about these matters (and mostly attended by the authorities including myself), but YET, things are still happening.

Sometimes, Brigitte, it doesn't take a fully-qualified/competent/experienced technical person to find out something is wrong or something fishy is going on!. Trust me...if you keep waiting for an expert opinion too long in order to make the right decision, the chances are, more people will suffer.

It takes two to tango!

p.s. This is my last thread on this tragedy...I will talk about something else after this...I want to see action - or quoting our Premier - walk the talk - not talk the walk. We have enough resources now. No more amendments. No more additions.No more debates. No more post-mortems. Too late for all these.

(and I'm not here trying to become a hero either or to champion people's rights - just doing my bit of responsibility as a Malaysian citizen)
---------------------------
Response by gleearch a.k.a. Gerard Lee Architects US - 06 June 2006 at 5:58am

Brigitte,

Nik has made a lot of good points in his posts.

Getting any building designed and built is a complicated process. Having buildings built into the side of a hill is even more complicated.

That said, it requires a team to get this done. Not just the design team, but the client group/ developer and the government.

It all starts with a good and adequately prepared soils report (even then a soils report can miss a number of things). A good professional design team consisting of the architect, structural engineer, civil engineer and other consulting engineers will work together with the client and occassionaly the contractor to come up with a design that meets all pertinent building codes and hopefully goes above and beyond. That requires commitment on the part of the client/ developer because it comes down to costs/ money.
During construction a good and honest contractor will do their part to ensure compliance with the engineered building and to keep them honest, the building department will inspect the construction on a regular basis. Even before construction, they will review the drawings and project manual for compliance before issuing a permit.

It's a complicated process but it requires a desire from all concern to ensure a well designed and built building.

However it doesn't end there. Buildings must be maintained and this includes the site. If a building met all the specifications and was built right but was not properly maintained as required, it might fail. I.e. a building on a hillside with a complicated water removal system which the building maintenance team does not do anything to ensure proper drainage, may develop complications and eventually fail.

It comes down to costs and money. If anywhere within this process, there is a failure (design, ethical, moral, physical etc.), it all comes tumbling down like a house of cards.

Building codes are only as good as the building department that enforces them. Just like a car or any piece of equipment, a building has to be maintained. How often do you see shiny new buildings go up, that after a few years look like deathtraps or become dirty and dingy?

Too often people revel in putting something new up without any thought towards maintainence.

If buildings are failing at such a dramatic frequency as highlighted by the articles that Nik has shown, it points to a general failure in how these codes are being enforced or that the codes themselves maybe sorely lacking. In which case its the responsibility of the government to act. There are now in place an International Building Code which many countries are moving towards adoption. You have to realised that tighter and stringent code requirements mean a increase in construction costs. There are many reasons why contractors, developers and governments may not readily embrace these new codes.

After all, human life is not worth very much in some countries. And since building codes are meant to protect public health, safety and welfare, some may not find it necessary to do so.

Until governments realise that it's most valuable assets are it's people and not material goods or buildings, there will be little incentive to improve things other than to make a little noise here and there.

All we can do as individuals is try to improve things wherever we can in whatever field we happen to be in.

For me, it's one building at a time.
------------------------
Posted: 28 June 2006 at 1:11pm

I was delighted seeing the following news and said - At last...let there be light...one of my 'cries for help' has been looked into...

The Star Central - Wednesday June 28, 2006

CONSTRUCTION PROCEDURES TO BE REVIEWED - By LOONG MENG YEE

It is time to review the procedures in the construction of housing and commercial areas and local authorities should compel developers to build the basic infrastructure before starting piling works.

�Often, the developers start the piling work first so that they can collect the progressive payments from buyers. Drains, the sewerage system and other infrastructure are usually built last, and sometimes they are poorly constructed or not even done at all,� said Selangor state executive councillor Datuk Ch�ng Toh Eng, who is in charge of environment, IT and new village development.

He said building the infrastructure before starting piling work would not add any major steps to the construction process, adding that the matter would be brought up at the state executive councillors� meeting.

Unfortunately, at the same time, another sad tragedy that cost the life of a young girl has occurred and immediately spoilt my good mood Sad

The Star Nation - Wednesday June 28, 2006

GIRL KILLED IN LANDSLIDE AT SEPANGGAR - By RUBEN SARIO

KOTA KINABALU: An eight-year-old girl was killed when tonnes of soil slammed into a wooden house on Monday night. The incident occured near where a 50m-stretch of the Sepanggar highway leading to a port and seaside resort caved in. Relatives said the body of Norshafidah Abdul Rahman was recovered at 5.30am yesterday by firemen, police personnel and Kampung Bundu villagers who had been frantically searching for her after the 11.30pm incident. Norshafidah�s aunt Fatimah Ahmad, 28, said 10 other family members managed to flee the house moments before it collapsed.

(Pic) ROAD COLLAPSE: The cave-in at a 50-km stretch of the Sepanggar highway on Monday night reduced traffic to a single lane.

�We heard a rumbling sound and a truck continuously blaring its horn. We realised that something was really wrong and fled,� Fatimah said, adding that at that time Norshafidah and her mother Norhata were asleep in a room while she and the other family members were watching television.

While fleeing the house Norhata lost her grip on her daughter who was later found under a pile of wooden beams.

(pic}Norshafidah: Found under a pile of wooden beams

Another house, belonging to supermarket sales assistant Masni Pilok, was also seriously damaged in the landslip which occurred even as people in many parts of the state capital were cleaning up after floods following a 12-hour downpour since Sunday.

�I was just about to go to sleep at about 11.30pm when I heard something hitting the wall of my house. I screamed to warn a family of four who were renting my house to get out,� said a shaken Masni, who has taken refuge in a neighbour�s house.

State Infrastructure Development Minister Datuk Raymond Tan told reporters at the site that the families in the remaining six houses in the village had been asked to evacuate as a precautionary measure. He said Public Works Department (PWD) officials were investigating the cause of the road cave-in which had reduced traffic along the affected stretch of the busy Sepanggar highway to a single lane. Tan said the PWD would also be investigating claims by nearby Kampung Karambunai villagers that large cracks had appeared along the collapsed stretch of the highway more than a week before the cave-in, and that no warning was given to Kampung Bundu villagers whose homes were nearby.

Kampung Karambunai villager Abdul Lamit Dimin who alerted the authorities to the cracks said he was surprised that only the large cracks were patched up.

�We felt there was something seriously wrong with the road, and merely patching it up was not enough,� he added.
----------------------
Well I would say that this is quite a good news as well..Thank you Deputy Premier...Thumbs up to you!

Panel to monitor projects

The Star Nation - 1 July, 2006

PEKAN: The Government has set up a committee to monitor and carry out projects under the 9th Malaysia Plan. Its job includes overseeing the financial, quality and quantity(1) aspects of the projects, said Deputy Prime Minister Datuk Seri Najib Tun Razak.

He said the committee had met several times, with the most recent meeting, chaired by Prime Minister Datuk Seri Abdullah Ahmad Badawi, lasting four hours. Najib reiterated that the Government had enough funds to carry out all the projects, and Abdullah was expected to announce the details next month.

All ministries and government departments have been directed to issue tenders for the projects under the Plan as soon as possible,(2) he told reporters after opening SK Pekan Jaya here yesterday. Najib said civil servants at all levels in the state and federal governments must have the urgency to streamline the projects to ensure they are completed in time.

Najib said there must be a common understanding about matters relating to suitable land for projects, as land normally come under the purview of the states.

Should the land belong to individuals, the Government might have to acquire their property for development projects to take off, he said.

�The most important thing is to understand whether the land is suitable and whether it is within a good area that will not incur much infrastructure cost,� he said.

�If the cost of a project is RM100mil and you have to spend RM40mil or RM50mil on infrastructure alone, it is not worth it.�(3)

(1) - A good KPI will do the job!

(2) This is the critical part - this is where the Government must properly monitor, follow-up and have some surveillance - to ensure fair distribution, transparency, according to proper rules and regulation - that will even reach the grassroot level.

There are too many 'insiders' - who strongly feel that 'know who' is better than 'know how'

(3) Ooo trust me YAB, it's still happening....please do something about it...
---------------------------
Posted: 08 January 2007 at 7:14pm

I did mention and even highlighted some of the best researches on landslides provided they are being done PROACTIVELY - meaning to prevent similar incidents from occurring again NOT after the incident.

But ironically, there are so many researches being done - mostly related to the past incidents - yet surprisingly, NONE have been used to prevent subsequent incidents - again ironically - keep happening around the same area where these researches are linked to.

Now, whilst researches are all known to be adequately addressed, it's everyone's responsibility including the general public & including people like us to continually educate via blogs, forums, websites etc.

I think, this has something to do with the human's attitude and cannot be blamed on the researches or researchers.
----------------------------
Posted: 09 January 2007 at 7:33pm

Yes, based on Gue & Partners research - you can already use that as a guide. But besides technical, you should also be highlighting something about the human's attitude as well - such as :

a) response time,

b) reactive action (in short - waiting for something to happen first, then only take action..or waiting for complaint to come in first or waiting for people to die first...),

c) 'ball-passing' from one party to another (in short blaming culture instead of prompt investigation and finding solution or take preventive action),

d) (my personal favourite) appropriate (soil) testing only being done AFTER the incident which typically ending up with results showing that the incident (hilly areas) location is found 'unstable' or 'erratic soil movement' are detected.

What about during pre-construction, no site investigation? no geotechnical element? no testing? just approval merely based on civil and structural? how about geological and environmental factors?

nikzafri · Joined: 10 Jan 2008 Posts: 119

The Star Global Malaysians Forum - Posted: 02 April 2006 at 12:56pm

Just a quickie.Malaysians forumers.If you see this thread, please buy KOSMO, a Malay Speaking Tabloid today Sunday 2 April, 2006 (this is not April Fool). Turn to page 5 and read my press statement on Occupational Safety & Health in the Construction Industry. Meanwhile, I will do a quick translation and scan the original and post on my website. Few days after this issue today, follow-ups that may involve my suggestion on a proper POSH Plan and Investment on OSH may be included.

p.s. 7.30 pm 02/04/06 - Here is the URL
------------------------------
Posted: 05 May 2006 at 8:08pm

BM article talking about KPI in the construction industry.

Posted: 29 July 2006

For the construction industry, the typical indicators for KPI are :

Time/Duration, Cost, Quality/Safety, Customer Satisfaction, Change Orders, Business Performance.

How and Where to start? Look into your very own organization first...

a) Your current practice of ISO 9000 and TQM or some others,

b) Measureable Department Objectives, Management by Objectives - vision, mission statement, objectives, goals and key result areas, Benchmarking activity, (consider quality/safety)

c) Data analysis and the intranet,

d) Annual Report/Prospectus,

c) Non-Conformances Reports - customer & internal - based on both inspection and audit (consider quality and safety)

d) Press Conferences

------------------------------

nikzafri · Joined: 10 Jan 2008 Posts: 119

nikzafri · Joined: 10 Jan 2008 Posts: 119

The Star Global Malaysians Forum - Posted: 17 October 2005 at 10:49pm

In the construction industry, there is actually a difference between Quality Assurance and Quality Control - QA & QC - although you might encounter construction companies combining the two elements together under one department or a specific designation, but in actual fact it's a bit different. (I think other industry e.g. electronics has adequately addressed the distinctions)

In simple terms I would classify QC as more Operational (Site/Construction/Engineering) and QA as Management and Coordination. For the appointed (ISO 9001:2000) Management Representative of QMS, he/she is likely to originate from a QA background and not QC. QC work can usually be found done by Site/Construction Supervisor or Clerk-of-Works which one of them is - conducting site inspections. I will gladly talk more on this issue. Meanwhile you can visit this site :

http://www.apwa.net/documents/resourcecenter/QC-QA_examples.pdf (It's on PDF)

and here's another :

http://geekswithblogs.net/srkprasad/archive/2004/11/30/16489.aspx

nikzafri · Joined: 10 Jan 2008 Posts: 119

The Star Global Malaysians Forum - Posted: 14 November 2005 at 1:53pm

I have a brief opinion (well it's not that brief) based on my own experience. I call it "how to make people do things that they do not want or unwilling to do" - i.e. a system e.g. ISO 9000 or perhaps can be applied to LEED as well. Some quarters claimed that ISO or any other system meant for certification is irrelevant to the Law. As you know, many people would not be excited to implement a system unless the law requires them to do it.

These are two of my usual 'tricks' :

1. The Contractor must adhere to regulations stated in the Main Contract/Award to honor Client's requirements. e.g. The Main Contractor MUST adhere to the quality-related issues highlighted in the clauses of contract e.g. submission of project-related documentation, drawings method statement, project quality plan (project specific), inspection & test plan, inspection checklists etc. etc. In ISO 9000, this is part of fulfilling the customer requirements. The same thing applies to Environmental Plan, Project OSH Plan etc. The submissions are not about ISO alone, but it is also about honouring the contract, design brief, etc. plus, the generic requirements of the law itself - i.e. OSH Act, Environmental Quality Act and perhaps Uniformity Building by Law.

2. I use to tell my clients (mainly Main Contractors) that during arbitrative activities typically related to a certain variation orders, deviation of work, Liquidated Ascertained Damages and even justification of certain 'intangible' items of final accounts, project handover, Certificate of Practical Completion or Defect Liability Period, Fitness/Make Good Defect etc. etc, this is where ISO 9000 comes in - to have a proper good document and records management - with good traceability to the source.

Thus, if LEED is part of the contractual requirements plus proven to be generically related to some law (which I think they do) e.g. some Environmental Law or Uniformity Building by Law (UBBL) for design/development activities, then I think the All Parties have no choice but to honour them.

I guess, it's the way we consultants put it, if they tend to separate the standard with the law, then, the issue of non-compliance will go on forever!

Perhaps it's not so difficult for OSH Act as there are some 'magical phrases' mentioning (I would define it in laymen term - please excuse me..law guys!) - 'the use of industrial/product standard/codes of practice' are considered 'valid' in the court of law serving as evidences of compliance to the Act itself' - Of course, this issue will arise if adequately proven that the Contractor's Method Statement/Inspection and Test Plan are 'tied' to a certain code of practice ((which they do!) where the latter ties back to the Law itself being the 'umbrella' to the standard. Some OSH guys told me that - in this case - if found that the Contractor is not complying to their own method statements, it can mean that they are not complying to the standard/codes of practice - hence making them not complying to the law...and of course...they are 'chargeable'!

Remember, (1) Law punishes but Standard guides, (2) Balancing between RISK VS COST (what is likely to happen (in the long run) if you invest (on safety, or on LEED), what is likely to happen, if you don't invest) I think - even you should be worrying about your 'so-called ROI!'

(ALERT, the following may come 'a bit rough!' on some people)

Another way of putting it, I use to tell the employers especially the HRM to properly define 'major misconducts'.

e.g. 1) a person fighting at site or (2) some workers in an unfinished building trying to joke with some friends below by throwing hard objects or (3) even during cases of breach of trust, falsification of details/paper qualifications etc.

I told the HR, that these are acts of crime or attempted crime - regardless 2nd/3rd/4th degree or intentional/non-intentional or 'extenuating circumstances'. There is NO need for warning letters, show-cause/domestic inquiry etc. Just report it to the authorities eg. police and that's it. When, the defendant is in the hand of authorities, he can be considered as self-terminating his services with the company. The most that the company will have to do later, is to become witness in the court (criminal case)..and that's it.

Why must waste your time? What if after the first warning letter, the person hurts or causes serious injury (or even death) on another colleague? The employer issues a 2nd warning letter? Cummon, it makes no sense!

What if also the accused/defendant is so smart enough (opportunist) to 'drag', 'delay' and 'making use' of that 'precious' time by 'playing along with the HR game' or 'following the flow' of warning letters, show-cause/domestic inquiry and even bringing disputes to the labour court - just to avoid 'criminal law' impacts. By the time, the employer realizes the 'opportunity' to act against the defendant under the virtue of criminal law, they have already wasted a hefty sum of compensation and the defendant will be LONG GONE and you have no way to act against him on basis of criminal law. Even if you do, you have already wasted a lot of money and time and will be wasting more of these 'goodies' to claim back what you have lost. (better drop it)

Of course, whilst we understand that it's the discretion/prerogative of the employers (based on humanity basis) whether to act or not to act against negligent employees causing small incidents, but too much discretion may lead to more major accidents. These employees have been properly inducted, given proper instructions and even being checked on their CV/Resume Referees (unless the employers didn't) PRIOR entering the site - so a constant repetition of mistakes cannot be tolerated - you see..too many minors can cause 'majors!'

I like to reiterate, it's the way, we consultants put it to the clients, make them realize how serious things can be if you don't comply to LEED, ISO 14000, OHSAS 18000 or ISO 9000. And as consultants, we must be proactive cum preventive and minimise or better avoid 'reactive/corrective'.The client must also be smart to include these system/standard generically in the Main Contract and Design Brief.

So, in a way, this is what it means by : "The OSH Act prevails during conflict with any other laws" so will LEED, so will ISO...

I sometimes get tired being 'Mr. Nice Guy'...what about you guys? Thus, I decided to 'provoke' and 'offend' rather than 'defend'. Let's see if there's some 'chain-reaction' from my comments. And of course, what I say here is not a 'gospel' - cause if you consider this as a gospel, I would be a very dissapointed man.
--------------------------
Posted: 17 November 2005 at 2:59pm
Now, how may I put this...

Actually what I meant by the thread is that the contractor/supplier - both product and services can use standards/codes of practice such as ISO 9000 (or any other system) to assist them in fulfilling the customer requirements spelt out in the Main Contract, Client's Specification, Design Brief, Letter of Award or even the tender documents.

This is one of the reasons why ISO 9000 (or any other system) come into existence. There are times when there are generic clauses of contract that spell out generally what customer want. For e.g. "The contractor must at all times adhere to the quality, safety, environment requirements during the construction of XYZ Building." or "The contractor must adopt/demonstrate a formal quality management system to address the quality requirements of the project" or perhaps "The contractor is required to submit sample, project quality plan, inspection and test plan etc. on a timely basis"

Thus, in order to help understand the actual requirements, the contractor may fully utilise ISO 9000 Quality Management System Documentation to assist them (usually another third party consultant..like me...will be hired) to further address the customer requirements. The same applies to customer complaints on 'defects' and 'system' incompliance. Thus like LEED can come hand-in-hand with ISO 14000, the ISO 9000, OHSAS 18000 can also come hand-in-hand with customer requirements (as how it should originally be)

What is actually happening :

1) The contractor/supplier treat ISO 9000 as an independent system and has no relation to the Contract.
2) They do ISO 9000 due to 'peer-group' pressure (competitors) or pressure from the top management.
3) They think ISO is only about adding up more documentation,
4) They think ISO has nothing to do with cost or finance (which is actually wrong - look few threads below),
5) Even if they hire a consultant, the consultant tends to be incompetent enough to 'connect' the system with the business operation of the contractor and even how ISO can assist the implementation of the law or how can it addresses the issue of non-compliance issued via customer complaints
6) Another problem with the consultant is that they tend to focus only on quality administrative and quality assurance issues and not too much on the quality control part (operation/construction/technical) This has create a setback or 'wrong impression' to most contractor in implementing the system as they can't get the 'feel' of the system and how it can affect their operation. I have also seen auditors/consultant who are being 'blinded' by the incorrect spelling/grammatical errors in the Manual, or a certain procedure is insufficient to address compliance of a certain element in the standard, What they should have done is to concentrate more on the PRODUCT itself rather than merely documentation. This maybe due to the fact that the consultant/auditors having insufficient experience in building and civil engineering, not to mention proper academic qualification or affiliationship/certifications with appropriate professional institutions (e.g. IRCA, EARA/EMAS, IQA).

And much-much more. (there are more where that came from)

About the Malaysian Contractors not complying to the contract, I wouldn't want to say that all contractors are like that (as there are still extremely good contractors in the market as much as there are still good genuine consultants) but the statistics shown by the government speaks by itself.

Well, I do not intend to say that I'm the best QEOHSMS Consultant but I would proudly proclaim myself as a continual learner. Some consultants have walked up to me and said, "We are just Quality Management Consultants and not the Engineer, why must you focus too much on 'technical' things?" - I simply replied "That what differentiates me and you"
----------------------------
Posted: 06 December 2005 at 9:39pm

nikzafri · Joined: 10 Jan 2008 Posts: 119

http://www.ce.cmu.edu/pmbook/

Project Management for Construction

Fundamental Concepts for Owners, Engineers, Architects and Builders

1. [url=http://www.ce.cmu.edu/pmbook/01_The_Owners'_Perspective.html]The_Owners'_Perspective[/url]
2. Organizing_For_Project_Management
3. The_Design_And_Construction_Process
4. Labor,_Material,_And_Equipment_Utilization
5. Cost_Estimation
6. Economic_Evaluation_of_Facility_Investments
7. Financing_of_Constructed_Facilities
8. Construction_Pricing_and_Contracting
9. Construction_Planning
10. Fundamental_Scheduling_Procedures
11. Advanced_Scheduling_Techniques
12. Cost_Control,_Monitoring,_and_Accounting
13. Quality_Control_and_Safety_During_Construction
14. Organization_and_Use_of_Project_Information

by Chris Hendrickson, Department of Civil and Environmental Engineering, Carnegie Mellon University, Pittsburgh, PA l52l3 Copyright C. Hendrickson 1998

nikzafri · Joined: 10 Jan 2008 Posts: 119

The Star Global Malaysians Forum - Posted: 01 August 2005 at 8:47pm

Q

Dear Nik, how do you define 'Customer Communication' in the Construction Industry'? (Civil and Building)

A

It is unfair for me to say that what I am about to say here suffice! I'll try to make it brief (as usual) Basically 'customer communication' is EVERYWHERE in the core processes of the construction industry be it civil and building or mechanical/electrical. Customer communication is not limited to how you contact your client but vice versa

During the Tendering Stage - initial site visit (Q & A), pre-q, review/request for justification of certain tender requirements or conceptual drawings/schematics, initial review/or rather dipute on contractual requirements prior to award or prior to acceptance, tender adjudication and negotiations, finalizing Bill of Quantities etc.

In the contract commencement stage, usually prior to site mobilization, there will be a need for you to prepare a Project Quality Plan together with the lists of Method Statements, ITP, master schedule, drawings/proposals etc. You will definitely need transmittal notes to send all these (or to communicate) to your client

Pre-Construction Stage - Immediately after site office setup/mobilization, you will be doing some sort of a 'kick-off meeting' - usually attended by the client where probably they tend to do some induction and briefing.

Construction Process

During ops, when the client started to get 'a lil bit more serious', they will start issuing 'non-conformances' (also known as customer complaint) followed by your ascertaining of root-causes and correction/corrective actions also constitute customer communication. Same goes to when the customer send in specifications, it is not only limited to 'customer property' that you have to look after but also generically related to customer communication.

When there are some 'deviation in construction works', 'architect/engineer instructions', 'variation orders', 'Project Progress Meeting' (with the client) etc.

Post Construction Stage

CPC and CMGD are at your Client's 'mercy'. For you, during this stage,usually you will start sending/conducting 'Customer Satisfaction Survey'. Thus, CPC, CMGD and your CSS form - constitute 'customer communication'. The complaints/comments issued by the client after CPC and during DLP (defects liability period) prior to CMGD also constitute the same thing - customer communication.

In General - 'Confirmation of Verbal/Telephone Instruction' by the Client, all types of correspondences including telephone/handphone calls, faxes, internet enquiry, e-mails, Intranet etc. are the general elements of customer communication.

so much for the 'brief explanation'.