Clause 7

that was entered into before 25 March 2020, but not if the construction contract was renewed (other than automatically) on or after that date;

that remains in force on 2 November 2020;

where the party (called in this Part A) for whom the construction works are performed under the construction contract is not an individual, other than an individual acting as a sole proprietor in the course of the business of the sole proprietorship; and

where, as at 7 April 2020, there are construction works (within the meaning given by section 3(1) of the Building and Construction Industry Security of Payment Act (called in this Part SOPA)) required to be performed under the construction contract, that have not been certified in accordance with the construction contract as completed.Cost-sharing39D.—

Subject to subsection (2), where —

the party (called in this Part B) required to perform the construction works under the construction contract is or will be unable to complete any of those construction works by the completion date (without the extension under Part 8A) provided in the construction contract for those construction works (whether the completion date was or is before, on or after 7 April 2020);

B’s inability is to a material extent caused by a COVID‑19 event; and

as a result of B’s inability, B has incurred or incurs any qualifying cost for the purpose of or in connection with the performance of any of those construction works, in relation to the period from 7 April 2020 to the last day of the prescribed period for the description of contracts to which the construction contract belongs (both dates inclusive),then, subject to subsection (2), B is entitled to claim from A, and A is liable to pay B, the lesser of the following amounts for each specified period:

50% of the total qualifying costs for anything done for or provided to or enjoyed by B in the specified period;

0.2% of the contract sum.(2) The total amount that B may claim under subsection (1) must not exceed 1.8% of the contract sum.(3) To avoid doubt, for the purpose of subsection (1)(d), where the qualifying costs incurred for anything done for or provided to or enjoyed by B relate to 2 or more specified periods, those qualifying costs must be pro‑rated for each of those specified periods.(4) Where subsection (1) is inconsistent with any provision in the construction contract for the cost‑sharing of any qualifying costs, then subsection (1) applies to the exclusion of that provision, to the extent of the inconsistency.(5) Subject to subsection (6), the amount that B may claim under subsection (1) is recoverable from A as a debt due to B.(6) Where the construction contract is one to which SOPA applies, B must claim for the amount of qualifying costs to which B is entitled under this section for any specified period by including the amount in any payment claim which B makes and serves on A under section 10(1) of SOPA, whether on its own or together with any progress payment for the same or a different period.(7) For the purpose of subsection (6), the amount of qualifying costs included in any payment claim may be for one or more specified periods.(8) For the purpose of subsection (6), Part III of SOPA applies to qualifying costs as it applies to progress payments, subject to any prescribed modifications.(9) In this section —“contract sum” means the total sum payable for the construction works to which the construction contract relates, as at the time the construction contract was entered into;“public authority” means —

any ministry, department or Organ of State of the Government, or a public officer of any ministry, department or Organ of State of the Government; or

any public authority established by or under any public Act for a public purpose or an officer or employee of the public authority;“qualifying costs” means any of the following:

any rent or hire‑purchase instalment for any plant or equipment required to perform the construction works that B is or will be unable to complete;

any costs for maintaining the construction site at which those construction works are performed (including for vector and pest control, site security, provision of utilities and cleaning of the construction site), by any person engaged by B (other than as an employee of B);

any costs to extend the validity period of any insurance obtained and any performance bond issued in respect of the construction contract, because of the inability mentioned in subsection (1);

any rent or other fee for the use of premises in Singapore to store any materials or equipment required to perform those construction works;

such other costs as may be prescribed,but does not include the following costs:

manpower costs, including salaries payable to B’s employees (whether or not carrying out the construction works that B is or will be unable to complete), their accommodation and transport costs, and any foreign worker levy payable in respect of any of them;

any costs incurred by B in respect of any additional steps or efforts to accelerate the performance of the construction works so that they may be completed by the completion date (including that date as extended under Part 8A);

any costs incurred in adopting any safe management measures or other measures to prevent, protect against or otherwise control the incidence or transmission of COVID‑19, including any such measures in any control order issued under Part 7 or any advisory, guideline or circular issued by any public authority;

costs for which B has received —

relief from the Government or any public authority;

relief under Part 2A or 8; or

such other relief as may be prescribed,to the extent of the relief;

such other costs as may be prescribed;“specified period” means each of the following:

the period from 7 April 2020 to 30 April 2020 (both dates inclusive);

the period that is a month or less and that begins on the first day of a month and ends on the last day of the prescribed period mentioned in subsection (1)(c);

each month in between the periods in paragraphs (a) and (b).Adjudication of disputes39E.—

Where —

B has included an amount for qualifying costs under section 39D(1) in a payment claim under section 10(1) of SOPA; and

A fails to pay B the amount within the time required under SOPA for the payment of payment claims for progress payments,then B is, in relation to that amount, entitled to make an adjudication application under section 12 of SOPA and apply for adjudication under section 13 of SOPA.(2) For the purpose of subsection (1), Part IV of SOPA applies to a payment claim for qualifying costs as it applies to a payment claim for a progress payment, subject to subsections (3), (4) and (5) and any other prescribed modifications.(3) For the purpose of subsection (1) and without affecting section 13(3) of SOPA, B must in the adjudication application —

state the amount B is claiming under section 39D(1); and

provide all information and documents relevant to the claim, including —

an extract of the terms of any contract that relate to the qualifying costs, and to the contract sum;

information and documents (including invoices and receipts) showing the amount of the qualifying costs and the date the qualifying costs were incurred by B; and

information and documents showing the amount of relief mentioned in paragraph (i) of the definition of “qualifying costs” in section 39D(9).(4) In determining the adjudication application under section 17 of SOPA, the adjudicator (including a replacement adjudicator) appointed to determine the adjudication application under that Act, must determine —

whether this Part applies to B; and

the amount under section 39D(1) which A is liable to pay B.(5) A review adjudicator may, upon a review of a determination mentioned in subsection (4), substitute that determination with his or her own determination.Regulations for this Part39F. The Minister may make regulations for the purpose of carrying out or giving effect to this Part, and these regulations may in particular provide for the following:

the forms to be used and the information or documents to be furnished for any purpose under this Part;

any modification of SOPA necessary or expedient for carrying out or giving effect to this Part;

the prescribing of any matter that may be prescribed under this Part.”.