APPLICATION OF ELECTRONIC COMMUNICATION

IN MALAYSIAN STANDARD FORM OF CONTRACT

PREPARED BY: SUHAILA ENDUT

INTRODUCTION

In the course of a construction

project, the successful dispute resolution
which arise often rest upon the
documentation of all significant events
and communications among the parties.
Electronic communications have
developed into a major pillar of
communication in construction industry
with the rising of electronic
correspondence. In the administration of
construction projects, communication in
the form of electronic are widely used
when giving notices, variations to
contracts and communications between
project participants. The type of
technology that may be used varies from
standard email communications through
to advanced online platforms.
LITERATURE REVIEW

1. PWD 203A Contract

Clause 5.1 only required the instructions to be in

writing and no specific means of communicating.

“The S.O. may from time to time issue further drawings,

details and/or written instructions (all of which are
hereafter collectively referred to as "S.O’s instructions")
in regard to-

• the Variation as referred to in clause 24 hereof;

• any discrepancy in or between the Contract
Documents as referred to in clause 8.2(b) hereof;
• the removal from the site of any materials or goods
brought thereon by the Contractor and the
substitutions of any other materials or goods
therefore;
• the removal and/or re-execution of any works
executed by the Contractor; the dismissal from the
Works of any person mentioned in clause 23.6 hereof
thereupon;
• the opening up for inspection of any work covered up;
the amending and making good of any defects
whatsoever under clause 48;
• any matter which is necessary and incidental to the
carrying out and completion of the Works under this
Contract;
• and any matter in respect of which the S.O. is
expressly empowered by this Contract to issue
instructions.”
LITERATURE REVIEW –cont’

2. PAM Contract 2006

i. Clause 2.2 of PAM 2006 contract, all instruction by

Architect must be in writing and in the form of AI.

“All instructions issued by the Architect shall be in

writing expressly entitled “Architect’s Instruction” (‘AI’).
All other forms of written instruction including drawings
issued by the Architect shall be an AI:

2.2(a) upon written confirmation from the Contractor

entitled
“Confirmation of Architect’s Instruction” (‘CAI’); or
2.2(b) upon subsequent confirmation of written
instruction by the
Architect with an AI.”

ii. Clause 36.1 laid down the means of communicating

of written notice or any document must be must be
communicated either through by hand, facsimile or
registered post.

“36.1 Any written notice or other document to be given

under the Contract shall be given or sent by:
36.1(a) hand;
36.1(b) ordinary mail or registered post;
36.1(c) facsimile transmission.”
PROBLEM STATEMENTS

PAM 2006 and PWD 203A (Rev1/2010)

standard form of contract requiring any
variations to the contract to be in writing and
may require the writing to be signed. However, it
is unknown that the definition of ‘writing’ in
electronic forms are acceptable in construction
contract. Since the definitions of ‘writing’ are not
interpreted clearly in the contract, the validity of
electronic communications in construction
contract are uncertain.

With reference to uncertainty on this matter, this

study reviews the status of electronic
communications in contract documents.
OBJECTIVES OF STUDY

The objectives of this research is to:

1. Whether electronic communications

can have contractual effect in the
contract between the parties;
2. Whether in the event of dispute,
electronic communications can
legally be admissible.
3. To identify the types of electronic
communications that permissible
as evidence in construction
contract.
SCOPE AND LIMITATION

This study is to be limited on related law cases

specifically centered on the issue of construction
disputes.

This study also reviews related act that govern

electronic communications that is Electronic
Commerce Act 2006

SIGNIFICANT OF THE STUDY

This research is very important to contract

administrator to know whether instructions given
through electronic correspondence is valid and
whether or not the application of electronic
communication can be challenge in construction
courts. Moreover, the outcome of this study may
help in the suggestion of “writing” definition and
scopes in construction contract.
RESEARCH METHODOLOGY

Research methodology is very important

to assist in carrying out the research. The
process of research methodology consists of five
phases:

1 2 3

Preparation
Literature Data
of Research
Review Collection
Proposal

Conclusion
Data
and
Analys
Recommenda
is
tion

5 4