Part of a comprehensive analysis of the COVID-19 (Temporary Measures) Act 2020
All Parts in This Series
- PART 1
- PART 2
- PART 2
- PART 3
- PART 4
- PART 5
- PART 6
- PART 7
- PART 8
- PART 8
- PART 8
- PART 8
- PART 9
- PART 10
- PART 10
- Part 10
- Part 10 (this article)
Understanding Part 10A Assessor Determinations under the COVID-19 (Temporary Measures) Act 2020
The COVID-19 (Temporary Measures) Act 2020 introduced Part 10A to address disputes arising from construction contracts affected by the pandemic, specifically concerning increases in foreign manpower salary costs. This article provides a detailed analysis of the key provisions, their purposes, and the legal framework governing Part 10A assessor determinations. It also examines the absence of explicit definitions and penalties, and the cross-references to other relevant legislation.
Key Provisions and Their Purpose
Part 10A establishes a specialized mechanism for resolving disputes related to adjustments of contract sums due to increased foreign manpower salary costs caused by COVID-19 events. The central figure in this process is the Part 10A assessor, whose role and powers are clearly delineated in the Act.
"(1) On the application of A under section 79F for an adjustment of the contract sum, the Part 10A assessor must — (a) make a determination — (i) whether the case is one to which this Part applies; and (ii) whether A had made a reasonable attempt to negotiate with B for the adjustment; and (b) if each determination in paragraph (a) is in the affirmative, also make a determination — (i) whether there has been an increase in the amount of the foreign manpower salary costs incurred by A at any time between 1 October 2020 and 30 September 2021 or such later date as may be prescribed by regulations made under section 79K (both dates inclusive), over what A would otherwise have incurred, because of a COVID-19 event; and (ii) whether it is just and equitable in the circumstances of the case to adjust the contract sum to take into account such increase, and (if so) of the adjusted amount." — Section 79G, COVID-19 (Temporary Measures) Act 2020
Verify Section 79G in source document →
Purpose: This provision ensures that only cases genuinely affected by COVID-19-related increases in foreign manpower salary costs are considered. It requires the applicant to have attempted negotiation, promoting dispute resolution without immediate adjudication. The assessor’s role is to determine if the contract sum should be adjusted justly and equitably, reflecting the principle of fairness in unforeseen circumstances.
"(2) When making a determination, the Part 10A assessor — (a) must take into account prescribed matters and prescribed principles; and (b) must seek to achieve an outcome that is just and equitable in the circumstances of the case." — Section 79G, COVID-19 (Temporary Measures) Act 2020
Verify Section 79G in source document →
Purpose: This clause mandates the assessor to consider specific factors and principles prescribed by regulations, ensuring consistency and fairness in decisions. The emphasis on a just and equitable outcome reflects the Act’s intent to balance interests between contracting parties amid pandemic disruptions.
"(3) A determination under subsection (1) may, with the leave of the court, be enforced in the same manner as a judgment or an order of the court to the same effect." — Section 79G, COVID-19 (Temporary Measures) Act 2020
Verify Section 79G in source document →
Purpose: This provision grants the determinations legal enforceability equivalent to court judgments, thereby providing parties with a clear and effective remedy. It underscores the seriousness and finality of the assessor’s decisions, facilitating compliance and dispute resolution.
"(5) The determination is binding on all the parties to the construction contract and all parties claiming under or through them." — Section 79G, COVID-19 (Temporary Measures) Act 2020
Verify Section 79G in source document →
Purpose: Binding effect ensures that the determination conclusively resolves the dispute for all directly involved parties and their successors or assigns. This prevents protracted litigation and promotes finality in contractual relations affected by COVID-19.
"(7) There is no appeal from a determination." — Section 79G, COVID-19 (Temporary Measures) Act 2020
Verify Section 79G in source document →
Purpose: The prohibition of appeals streamlines the dispute resolution process, reducing delays and costs. It reflects legislative intent to provide a swift and final mechanism for addressing COVID-19-related contract adjustments.
Additionally, the Act provides for the possibility of varying or replacing initial determinations if material changes in circumstances arise, ensuring flexibility and fairness over time.
"(1) After a Part 10A assessor has made a determination under this section or section 79G (called in this section the initial determination), the Part 10A assessor or another Part 10A assessor may, either on his or her own motion or on the application of one or both of the parties to the initial determination — (a) vary or replace the initial determination if there has been a material change in circumstances after it has been made and it is just and equitable for the variation or replacement to be made; or (b) require the parties to attend before the Part 10A assessor after a specified time for a further review of the matter and to make any additional determination as is appropriate." — Section 79H, COVID-19 (Temporary Measures) Act 2020
Verify Section 79H in source document →
Purpose: This provision allows the dispute resolution process to adapt to evolving facts, such as ongoing impacts of the pandemic, ensuring that determinations remain fair and relevant.
Finally, the Minister is empowered to make regulations to facilitate the operation of Part 10A, including the introduction of alternative dispute resolution methods.
"(1) The Minister may make regulations for or with respect to any matter that is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Part. (2) Without limiting subsection (1), the regulations may provide for the use of an alternative method of dispute resolution, such as mediation, to manage and resolve any dispute between parties to a construction contract." — Section 79K, COVID-19 (Temporary Measures) Act 2020
Verify Section 79K in source document →
Purpose: This empowers the government to ensure the Part’s effective implementation and encourages amicable resolution through mediation or other alternative methods, reducing the burden on formal adjudication.
Definitions in Part 10A
The text of Part 10A does not explicitly provide definitions for terms used within the Part. This absence suggests reliance on ordinary meanings or definitions contained elsewhere in the Act or related legislation.
"No explicit definitions are provided in the text of Part 10A assessor’s determinations." — Part 10A, COVID-19 (Temporary Measures) Act 2020
Verify source in source document →
Purpose: The lack of explicit definitions may be intentional to allow flexibility or because the terms are commonly understood within the construction and legal context. It also implies that parties and assessors must interpret terms in light of the Act’s purpose and relevant legal principles.
Penalties for Non-Compliance
Part 10A does not specify any penalties for non-compliance with the assessor’s determinations.
"No penalties for non-compliance are stated in Part 10A assessor’s determinations." — Part 10A, COVID-19 (Temporary Measures) Act 2020
Verify source in source document →
Purpose: The absence of explicit penalties suggests that enforcement relies on the ability to treat determinations as court judgments (Section 79G(3)). This mechanism encourages compliance through legal enforceability rather than punitive measures, aligning with the Part’s focus on fair and equitable resolution rather than punishment.
Cross-References to Other Acts
Part 10A incorporates references to other legislation to ensure coherence and integration within Singapore’s legal framework for construction disputes.
"(2)(c) whether, in relation to the contract sum as adjusted by the initial determination — (ii) arbitral proceedings under the Arbitration Act (Cap. 10) have commenced; or (iii) an adjudication application has been made under section 13(1) of SOPA," — Section 79H(2)(c), COVID-19 (Temporary Measures) Act 2020
Verify Section 79H in source document →
Purpose: This provision prevents conflicting proceedings by requiring the assessor to consider if arbitration or adjudication under the Building and Construction Industry Security of Payment Act (SOPA) has already commenced, promoting procedural efficiency and avoiding duplication.
"Section 38B applies to an action under SOPA in relation to a construction contract the contract sum of which is adjusted by a determination under section 79G or 79H..." — Section 79I, COVID-19 (Temporary Measures) Act 2020
Verify Section 38B in source document →
Purpose: This cross-reference ensures that SOPA’s provisions apply consistently even when contract sums are adjusted under Part 10A, maintaining the integrity of payment security mechanisms.
"(8) Sections 14, 15 and 15A apply, with the necessary modifications, to proceedings before a Part 10A assessor under this section as if — (a) a reference to an assessor in those sections is a reference to a Part 10A assessor; and (b) a reference to an assessor’s determination in section 15A is a reference to a determination." — Section 79G(8), COVID-19 (Temporary Measures) Act 2020
Verify Section 79G in source document →
"(9) Sections 16 and 17 apply to the Part 10A Registrar or a Part 10A assessor when carrying out his or her functions and duties under this Part as they apply to the Registrar or an assessor mentioned in Part 2 when carrying out his or her functions and duties under Part 2." — Section 79G(9), COVID-19 (Temporary Measures) Act 2020
Verify Section 79G in source document →
Purpose: These provisions extend procedural and administrative rules from other parts of the Act to Part 10A proceedings, ensuring consistency in how assessors and registrars operate. This integration supports procedural fairness and administrative efficiency.
Conclusion
Part 10A of the COVID-19 (Temporary Measures) Act 2020 provides a targeted, efficient, and equitable framework for resolving disputes over contract sum adjustments due to increased foreign manpower salary costs caused by the pandemic. The Part empowers assessors to make binding, enforceable determinations without appeal, while allowing for flexibility to adapt to changing circumstances. The absence of explicit definitions and penalties is balanced by cross-references to established legislation and enforcement mechanisms. Overall, Part 10A reflects a legislative intent to facilitate swift dispute resolution and maintain contractual fairness during unprecedented times.
Sections Covered in This Analysis
- Section 79G – Determinations by Part 10A assessor
- Section 79H – Variation or replacement of determinations
- Section 79I – Application of SOPA provisions
- Section 79K – Minister’s power to make regulations
- Cross-references to Arbitration Act (Cap. 10) and Building and Construction Industry Security of Payment Act (SOPA)
Source Documents
For the authoritative text, consult SSO.