Building and Construction Industry Security of Payment Act 2004

Building and Construction Industry Security of Payment Act 2004 2020 REVISED EDITION This revised edition incorporates all amendments up to and including 1 December 2021 and comes into operation on 31 December 2021 An Act to facilitate payments for construction work done or for related goods or services supplied in the building and construction industry, and for matters connected therewith. [3 January 2005: Sections 1, 28 and 40 ; 1 April 2005: Sections 2, 3, 4, 29 to 39, 41 and 42 and Parts II to V ] PART 1 PRELIMINARY Short title 1. This Act is the Building and Construction Industry Security of Payment Act 2004. Interpretation 2. In this Act, unless the context otherwise requires — “adjudicated amount” means the amount of a progress payment that is determined to be payable under section 17 or 19, as the case may be; “adjudication” means the adjudication of a payment claim dispute in accordance with Part 4, and includes an adjudication review under that Part; “adjudication determination”, in relation to an adjudication, means the determination of the adjudicator; “adjudication response” means a response to an adjudication application lodged by a respondent under section 15(1); “adjudicator” means a person appointed under this Act to determine a payment claim dispute that has been referred for adjudication, and includes — (a) a replacement adjudicator appointed under section 14A(3); (b) a review adjudicator or a panel of review adjudicators appointed under section 18(5)(b); and (c) a replacement review adjudicator or a replacement member of a panel of review adjudicators appointed under section 18A(3); “authorised nominating body” means a person authorised under section 28(1); “claimant” means a person who is or claims to be entitled to a progress payment under section 5; “claimed amount” means the whole or part of any progress payment claimed by a claimant in a payment claim, and includes any interest payable under section 8(5); “construction contract” means an agreement under which — (a) one party undertakes to carry out construction work, whether including the supply of goods or services or otherwise, for one or more other parties; or (b) one party undertakes to supply services to one or more other parties; “construction site”, in relation to a contract between a claimant and a respondent, means — (a) the land on which or the premises at which the claimant has been, is or will be carrying out construction work; or (b) the land or the premises in relation to which goods or services have been, are being or will be supplied under the contract; “contract” means a construction contract or a supply contract, and includes a construction contract or a supply contract that has been terminated; “costs”, in relation to an adjudication, includes — (a) the application fee payable to an authorised nominating body; and (b) the fees and expenses of the adjudicator; “day” means any day other than a public holiday within the meaning of the Holidays Act 1998; “due date”, in relation to a progress payment, means the date on which the progress payment becomes due and payable under section 8; “land” has the meaning given by section 4 of the Land Titles Act 1993; “owner”, in relation to a contract between a claimant and a respondent, means — (a) a person who — (i) enters into a contract, whether with the respondent or any other person, for the carrying out of construction work at or on, or for the supply of goods or services in relation to, the construction site concerned by the respondent or other person, as the case may be; and (ii) is not engaged by any other person to carry out construction work at or on, or to supply goods or services in relation to, the construction site concerned; or (b) where there is no such person — a person who owns the construction site concerned; “patent error”, in relation to a payment claim, means an error that is obvious, manifest or otherwise easily recognisable on the face of the claim; “payment claim” means a claim made by a claimant for a progress payment under section 10; “payment response”, in relation to a construction contract, means a response to a payment claim made by a respondent under section 11(1) or 12(4); “principal”, in relation to a respondent named in a payment claim served by a claimant under section 10, means a person who is liable to make payment to the respondent for or in relation to the whole or part of the construction work that is, or the whole or part of the goods or services that are, the subject of the contract between the respondent and the claimant; “progress payment” means a payment to which a person is entitled for the carrying out of construction work, or the supply of goods or services, under a contract, and includes — (a) a single or one-off payment (including a final payment); or (b) a payment that is based on an event or a date (including a final payment); “respondent” means a person who is or may be liable to make a progress payment under a contract to a claimant; “response amount” means — (a) in relation to a construction contract — the amount that a respondent proposes to pay to a claimant in a payment response provided under section 11(1) or 12(4) or as varied under section 12(4); or (b) in relation to a supply contract — the amount of the claimed amount in a payment claim that a respondent has paid to the claimant on or before the due date, if any; “supply contract” means an agreement under which — (a) one party undertakes to supply goods to any other party who is engaged in the business of carrying out construction work or who causes to be carried out construction work; (b) the supply is for the purpose of construction work carried out or caused to be carried out by the second‑mentioned party; and (c) the firstmentioned party is not required to assemble, construct or install the goods at or on the construction site, but does not include any prescribed agreement. [47/2018] Definitions of “construction work”, “goods” and “services” 3.—(1) In this Act, unless the context otherwise requires and subject to subsection (2) — “construction work” means — (a) the construction, alteration, repair, restoration, maintenance, extension, demolition or dismantling of buildings or structures (whether permanent or not) that form, or are to form, part of the land; (b) the construction, alteration, repair, restoration, maintenance, extension, demolition or dismantling of any works that form, or are to form, part of the land, including walls, roadworks, powerlines, telecommunication apparatus, aircraft runways, docks and harbours, railways, inland waterways, pipelines, reservoirs, water mains, wells, sewers, industrial plant and installations for the purpose of land drainage, coast protection or defence; (c) the installation in any building, structure or works of fittings that form, or are to form, part of the land, including systems of heating, lighting, air conditioning, ventilation, power supply, drainage, sanitation, water supply or fire protection, and security or communications systems; (d) any operation which forms an integral part of, is preparatory to, or is for rendering complete, works of the kind mentioned in paragraph (a), (b) or (c), including — (i) land reclamation; (ii) site clearance, earth moving, excavation, tunnelling and boring; (iii) the laying of foundations; (iv) the erection, maintenance or dismantling of scaffolding; (v) the prefabrication of components to form part of any building, structure or works, whether carried out at or on the construction site or elsewhere; and (vi) site restoration, landscaping and the provision of roadways and other access works; (e) the external or internal cleaning of buildings, structures or works, so far as it is carried out in the course of their construction, alteration, repair, restoration, maintenance or extension; or (f) the painting or decorating of the external or internal surfaces of any building, structure or works; “goods” means — (a) materials or components to form part of any building, structure or works arising from construction work; or (b) plant or materials (whether supplied by sale, hire or otherwise) for use in connection with the carrying out of construction work; “services” means — (a) the conduct of feasibility studies, planning services, the submission of applications or other documents to any relevant authority, site supervision services, professional engineering services, or architectural, design, surveying or quantity surveying services, in relation to construction work; (b) project management services in relation to construction work; (c) building, engineering, exterior or interior decoration or landscape advisory services in relation to construction work; or (d) the provision of labour to carry out construction work. (2) The Minister may, by order in the Gazette, modify the definition of “construction work”, “goods” or “services” in subsection (1) by adding to, varying or deleting any part of the definition. Application of Act 4.—(1) Subject to subsection (2), this Act applies to any contract that is made in writing on or after 1 April 2005, whether or not the contract is expressed to be governed by the law of Singapore. (2) This Act does not apply to — (a) any contract for the carrying out of construction work at or on, or the supply of goods or services in relation to, any residential property (within the meaning of the Residential Property Act 1976), which does not require the approval of the Commissioner of Building Control under the Building Control Act 1989; (b) any contract to the extent that — (i) it contains provisions under which a party undertakes to carry out construction work, or to supply goods or services, as an employee (within the meaning of the Employment Act 1968) of the party for whom the construction work is to be carried out or the goods or services are to be supplied; or (ii) it deals with construction work carried out outside Singapore, or goods or services supplied in relation to construction work carried out outside Singapore; (c) any terminated contract to the extent that — (i) the terminated contract contains provisions relating to termination that permit the respondent to suspend progress payments to the claimant until a date or the occurrence of an event specified in the contract; and (ii) that date has not passed or that event has not occurred; (d) any contract for the prefabrication, in Singapore, of components intended for construction work to be carried out on a construction site outside Singapore, where any one of the parties to the contract is not — (i) a body corporate incorporated under any written law in Singapore; (ii) a limited partnership registered under the Limited Partnerships Act 2008; or (iii) a person carrying on a business that is registered under the Business Names Registration Act 2014; and (e) such other contract or class of other contracts as may be prescribed. [47/2018] (3) To avoid doubt, this Act — (a) applies to a contract that deals with the prefabrication (whether in or outside Singapore) of components that will form part of any building, structure or works, where the contract is for the supply of these prefabricated components for construction work to be carried out on a construction site in Singapore; and (b) does not apply to claims made between former parties to a contract in relation to any construction work that is carried out, or goods or services that are supplied, at the time of or after the termination of the contract. [47/2018] (4) For the purpose of this section, a contract is treated as being made in writing — (a) if the contract is made in writing, whether or not it is signed by the parties to the contract; (b) if the contract is made by an exchange of written communications; (c) if the contract made otherwise than in writing is recorded by one of the parties to the contract, or by a third party, with the authority of the parties to the contract; or (d) if the parties to the contract agree otherwise than in writing by reference to terms that are in writing. (5) Where a contract is not wholly made in writing, the contract is treated as being made in writing for the purpose of this section if, subject to the provisions of this Act, the matter in dispute between the parties to the contract is in writing.