What are the swords and shields in standard forms, in general, for Employers and Contractors?

Please discuss with examples from

any contract form. Please pick one form.

SIA, Lump Sum Contract,

“Swords & Shields” – Contract mechanisms for ensuring compliance and obligations are carried out.
Clause Employer Contractor
1.(1) Written and Verbal Directions 1.1 Shield: Without the Architect’s written confirmation,
and Instructions: The the Contractor shall not be entitled to
Contractor shall always carry compensation or expense incurred by complying
out the Works in accordance with any instructions of any Clerk-of-Works.
with the Contract and all
written directions and
instructions by the Architect.
Any verbal direction or
instruction by the Architect
shall be deemed to have been
given in writing.
Clause Employer Contractor
1.(7) Remedy on Non-compliance by Sword: Minimizes work disruption to project schedule Shield: In cases where Contractor does not have sufficient
Contractor: If the Contractor while imposing additional cost onto defaulting resources to comply, having replacement contractors
fails to comply with written Contractor. would potentially avert Liquidated Damages for late
Architect’s direction/instruction completion. Financially, the Contractor does not
within 7 days, Employer may suffer if no extra cost is incurred.
employ other contractors. The
extra costs (if any) to be
deducted from monies otherwise
due under the contract or
recovered from the Contractor.
Clause Employer Contractor
1.(8) Compensation to Contractor: If Shield: No additional cost or EOT will be granted for Shield: Provides assurance for Contractor to comply with
Architect gives any any damage, liability, expenditure or cost any direction/instruction and to promptly execute
direction/instruction which is incurred due to the Contractor’s default. obligations without raising “questionable
subsequently found to have no direction/instruction from Architect” as a defense.
power under contract or no
justification, and Contractor
duly compiled – then
Contractor is entitled to
additional payment or
compensation, and extension of
time if appropriate – except in
cases where
direction/instruction is
reasonable consequence of
negligence, defective work or
breach of contract by
Contractor.
Clause Employer Contractor
2. Methods of Working and Sword: The Architect reserves the rights of issuing Shield: If any accidents, loss, liability, claim or damage
Temporary Works: The change order, without any obligation to do so and subsequently occurs solely due to using the methods
Architect may give a direction at his entire discretion, to ensure that the of working or temporary works ordered by a
or an instruction requiring the Contractor applies appropriate construction direction or instruction of the Architect, the
contractor to change his methods of working and temporary works. Employer will indemnify and if appropriate pay
methods of working or compensation to the Contractor.
temporary works.
3. Design and Completion Shield: The Contractor shall be entitled to additional
Responsibilities: The Architect payment or compensation or extension of time on
shall give the information about the like terms because of any act or neglect of the
varied work to the Contractor Employer or of other contractors engaged by the
when issuing relevant variation Employer, or due to an instruction or direction of the
order Architect.
Clause Employer Contractor
4. Programme: Disapproval of the Shield: Until the dispute of the program has been resolved,
sufficiently detailed program by the contractor should be allowed to proceed with the
the Architect shall not prevent work. This is so that contractor is able to safeguard
the Contractor from starting his obligation to meet the contractual timeline.
work, but may be considered in
determining any dispute as to a
reasonable sequence or order
for affording possession of the
Site of for supplying further
information.
Clause Employer Contractor
5. Make-up Contractor’s Prices: In Sword: Ensure Contractor provides detail breakdown Shield: The Contractor reserves the rights to adjust rates or
the Schedule of Rates, the before commencement of work. prices, and to start work if he has submitted above
Contractor shall submit required documents.
breakdown of prices and
indicate Letter Q, Letter T, and
Letter F requiring adjustment.
All categories of expenditure
contemplated by those items not
included in his other rates and
prices shall also be indicated
precisely. Preliminary items for
which the Contractor has not
given key letter indication shall
be deemed to be fixed.
Clause Employer Contractor
6.(3) Dismissal of Persons Sword: Ensures the compliance of all staff of the
Employed: Architect may give Contractor in executing their obligations.
directions requiring the
dismissal from Works of any
person employed whose
continued employment by the
Contractor may prejudice the
satisfactory and expeditious
completion of the Works.
7.(1) By-Laws and Regulations: Shield: Any delay in Architect’s direction/instruction to Shield: Entitled to claim for EOT, and compensation of fees
Contractor can proceed with cover for the works to comply statutory and charges incurred as a result of complying with
work conforming to statutory obligations does not prevent Contractor from statutory obligations.
obligations even without executing statutory obligations.
variation order by Architect
within 7 days of the written
notice, with EOT and monetary
compensation as appropriate.
Clause
8. Setting Out: The Architect shall Sword: If any errors arise due to inaccurate setting out
determine the levels
executing the Works
provide accurately dimensioned
drawings for the Contractor to
set out the Works.
10. Possession of Site
Commencement of Work: If no
Contract Commencement Date
is stated in the Appendix, or if
such date in the Appendix
becomes invalid due to some
reasons not responsibility of the
Contractor, then such date shall
be deemed to be such other date
agreed by the parties or be a
reasonable date.
Employer
for by the Contractor, the Architect reserves the right
and to decide either to amend them at the cost of the
Contractor, or accept them without amendment,
subject to reduction in the Contract Sum.
and Shield: The Architect may set restrictions upon
possession of the whole of the Site in the
Appendix to these Conditions or in the
Specifications.
Contractor
Sword: If the Architect fails to furnish the required accurate
drawings, then the Contractor may be exempt from
the errors and retain the right to claim for any loss.
Sword: If no expressly agreed date by the parties, the
Contractor shall be entitled to freely and
uninterruptedly possess the whole area of the Site
regardless of Specifications or Drawings and be
entitled to Special Access to the Site which the
Employer is responsible to provide.
Clause Employer Contractor
11. Quality of Material and Sword: Architect may ask for removal or demolition of Shield: Contractor is entitled compensation for additional
Workmanship: Architect may work/goods/material which is not in accordance expenditure or delay resulting if test or
request to be furnished with with the contract with reconstruction and investigations find no evidence of defective work by
proof of quality of replacement in accordance with contract. the contractor.
material/goods/workmanship Shield: Ensures quality of materials/goods/workmanship
from the contractor. Architect provided by the contractor.
may request for test or
investigations to be carried out
to verify quality of
material/goods/workmanship.
12. Variation and Valuation of Sword: Architect may sanction and variation by the Sword: Contractor is entitled to additional payment,
Additional Payments: Architect contractor without input from Architect or compensation and/or extension of time for
has the power to at any time Employer with no entitlement to the Contractor variations by the contractor that was made in an
give directions or instructions to additional payment, compensation and/or emergency or in the case it was not practical to
for a variation to be made in the extension of time. obtain instructions from the Architect.
original contract work.
Clause Employer Contractor
13. Schedule of Rates: This clause Shield: Prevent the contractor to amend the rates as
specifies that the schedule of specified due to any cost incurred by the
rates shall be inclusive of all Contractor that was previously not taken into
work, material and expenditure account to bring the work to completion.
required to bring the works to
completion.
14. Discrepancy or Divergence: In Shield: Protects the employer to unfavorable works that Shield: If due to the discrepancy or divergence, the
the event there is discrepancy or are not of employer’s intention when there is a Architect were to give instruction that differs from
divergence in the contract divergence in the contract. the interpretation of the Contract as a whole, or if
document to the exact nature of the Contractor has been reasonably misled to his
work to be carried out, it is the detriment when pricing, the Contract sum may be
contractor’s responsibility to increased and if necessary an appropriate extension
notify the Architect for further of time will be granted.
instructions.
Clause Employer Contractor
15. Assignment and Sword: Employer is protected from damage or loss due Sword: Employer shall not withhold consent for the
Sub-Contracting: Defines the to the action of the subcontractor and in this is engagement of subcontractor if the subcontractor is
scope allowable to be treated as an agent of the Contractor. of a class and good standing and appropriate for the
subcontracted out and the Shield: Makes contractor solely responsible for own type of work to be carried out.
conditions around actions and obligations, instead of blaming third
subcontracting. Contractor parties not privy to the contract.
cannot assign or make
arrangement for vicarious
performance of main
contractor’s functions – such as
controlling site with own site
staff, coordinating work of any
sub-contractor and ordering
materials for the Works.
Clause Employer Contractor
16. Plant and Materials: All plant Sword: Employer has the right to keep on site plants, Shield: Consent for the removal of plant or facility cannot
and temporary buildings temporary buildings, unfixed material and be unreasonably withheld if no further work
brought onto the site be deemed delivered goods that is required for ongoing appropriate to the plant or facility remains.
to be the property of the works that has yet to be completed.
Employer and consent of the
employer is required before
these are removed from the site.
Similar consent is required for
any unfixed material and goods
delivered on site.
17. Artist, Tradesmen and Other Shield: Employer is able to hire other skilled
Contractor: The contractor is professional and grant them access to the site
unable to refuse entry to during which time works are being carried out by
artist/tradesmen/other the Contractor.
contractors engaged by the
employer.
Clause Employer Contractor
18. Indemnities to Employer: The Shield: Employer is protected from liability from Shield: Contractor is released from liability of loss arising
Contractor is liable for and personal injury or damage to property in regards due to the willful neglect of the Employer.
shall indemnify the Employer to completion of work by the Contractor.
from losses arising when Works
are carried out as part of the
Contract.
19. Insurance against Injury to Sword: If the Contractor defaults on payment of the
Persons and Property and Work premium of the insurance, the Employer may
Injury Compensation: The exercise the right to pay the premium on the
Contractor is to maintain Contractor’s behalf and subsequently deduct the
insurance. To cover liability due cost of which from the sum due to the
to personal injury and loss due Contractor.
to the works being carried.
Clause Employer Contractor
20. Insurance of Works: Covers the Sword: Ensure contractor carry out work as directed by
extent of insurance and to Architect.
whom payment is to be made in Shield: Contractor to maintain insurance protecting the
the event of claim. Upon interest of the Employer to the full value of the
occurrence of any loss or works and all unfixed goods and materials
damage to the Works, the delivered.
payment from the insurer is to
be made to Employer and
payment by the Employer is to
be made to the Contractor as
repair/restoration/replacement
of the damage has been carried
out.
Clause Employer Contractor
23. Extension of Time: To be entitled Shield: Retains employer’s right to liquidated damages Shield: Grants reasonable time extension and monetary
for EOT, the Contractor must by mitigating the possibility of rendering time “at reimbursement, should delays be due to neutral
have been carrying out the works large” for delays caused by employers. events or employer-caused events – rather than
with due diligence and must have undue financial burden or bankruptcy due to heavy
taken all reasonable steps to imposition of such LDs.
avoid or reduce any delay due to
neutral events and/or employer’s
default/ delay.
23.(2) Notice (condition precedent to Sword: If Contractor fails to comply with the
EOT): Contractor to notify notification period and/or fails to furnish
Architect within 28 days in sufficient explanation to justify for the EOT, then
writing of any event or the Architect as the administrator the contract is
direction/instruction which he not obliged to grant any EOT. This minimizes
considers entitles him to EOT, indiscriminate and unsubstantiated claims for
together with sufficient EOT from the contractor.
explanation why delay to
completion will result.
Clause Employer Contractor
24. Liquidated Damages: Upon Sword: Ensures Contractor strives to complete Shield: The LD amount being known at the point of tender,
receipt of Delay Certificate, obligations on time. will allow the Contractor to price for the risk of
Employer can recover from non-compliance to the contractual completion date.
Contractor liquidated damages If the LD is too low, the contractor may choose to
calculated at the rate stated in pay the LD amount as oppose to incurring additional
the Appendix from date of cost to expedite the works to complete the works by
default certified by Architect. the contract completion date. On the other hand, if
The LD amount may be the LD amount is too high, it would be considered
deducted in whole or part from as a penalty, and thus, be not enforceable in court.
any monies due under the
Contract at any time.
Clause Employer Contractor
26. Partial Re-Occupation: Upon Shield: Reduces the financial burden of the Contractor.
issuance of Certificate of
Partial Occupation, a
proportion of the first half of the
Retention Monies in respect of
the Occupied Part shall be
released to the Contractor
within 14 days of re-entry by the
Employer. Similar approach
would apply to release of the
second half of the Retention
Monies on the same basis. In
addition, the maintenance of the
occupied part would commence
upon the re-entry. Contractor
can also apply for reduction in
the value of Works insured.
Contractor’s liability shall also
be reduced proportionately.
Clause Employer Contractor
27. Maintenance Period: Any defects Sword: Failure to comply with the contract on the
due to failure of Contractor quality of materials and workmanship, results in
(including subcontractor or the Contractor having to remedy at his own
supplier) to comply with his expense and without EOT entitlement. If
obligations under the contract defects are accepted, then contract sum is
shall be made good by the reduced.
contractor at no cost to the
Employer. Default period of 6
months from Completion
Certificate if not stated in the
Appendix.
- Allowance for Defect:
Architect may give directions
for the removal or demolition
of any work, goods or
materials, whether fixed or
unfixed, which are not in
accordance with the Contact,
and for the reconstruction or
replacement in exact
accordance with the Contract.

If Architect accepts defective work,

Clause Employer Contractor
29.(2) Objections to Nomination: Shield: Grants Contractor the right to protect himself from
The Contractor is entitled to potential damages incurred from default or
object to a Nomination incompetence of Nominated Sub-Contractor or
Instruction when Nominated Suppliers or Designated Sub-Contractor or
Sub-Contractor or Suppliers’ Suppliers.
financial standing or solvency
or technical competence or
reliability is not qualified, as
well as the terms of subcontract
offered by Nominated
Sub-Contractor or Suppliers, or
Designated Sub-Contractor or
Suppliers are unsatisfactory.
Clause Employer Contractor
29.(3)(a) Powers following Shield: Prevents delay to work due to non-appointment Shield: Contractor can carry out related works by himself to
Objection: After Contractor of subcontractor. prevent potential damages brought by Nominated
raises a valid objection to a Sub-Contractor or Suppliers or Designated
Nomination Instruction, Contractor or Suppliers. If Architect instructs
Architect can instruct Contractor to enter into the sub-contract, according
Contractor to carry out related to the clause, Employer will guarantee the
works by himself, or instruct Contractor against any loss, damage, claim or
Contractor to enter into a expense. Moreover, Contractor can be granted with
sub-contract notwithstanding EOT where necessary.
the valid objection. Provide assurance that Contractor will be paid for the work
carried out with the Architect’s instruction; or
Contractor will not be held responsible for default of the
nominated subcontractor for matters validly
objected by the Contractor
Clause
30.(2) Early Final Payment: If the
Architect wishes to secure final
payment to any Designated or
Nominated Sub-Contractor or
Supplier before final payment is
due to the Contractor, then the
Architect may in an Interim
Certificate include an amount
to cover such final payment.
31.(2) Payment Claim: The
Contractor should submit a
payment claim to the Employer
on the stipulated date.
31.(8) Retention Monies: Part of Shield: Compensate the Employer’s loss from potential
progress payments not paid to
the Contractor.
Employer Contractor
Shield: Early Final Payment can only be issued when
Sub-Contractor or Supplier has satisfactorily
indemnified the Contractor against any defect or
unsuitability subsequently appearing in his work.
Moreover, if there are defects or unsuitability of the
work not apparent at the relevant date to which the
Certificate relates, the Contractor shall be
discharged from any further liability for the
maintenance of the work during the Maintenance
Period.
Sword:
defects found during Maintenance Period.
Clause Employer Contractor
31.(12)(a) Final Certificate: Sword: Grants the Contractor with the right to get money
Indicates final balance due due from the Employer.
from the Employer to the Shield: Secures the Contractor to get money due from the
Contractor or from the Employer.
Contractor to the Employer.
31.(12)(b) Outstanding Balance of Shield: The Employer pays any such sum into a special
Nominated Sub-Contractors bank account in the case of dispute about
and Suppliers: The Architect balances of Nominated Subcontractors or
may certify direct payment by Suppliers. The Employer can deduct this from
the Employer to any Nominated any sums then certified as payable by him or
Sub-Contractor or Supplier and recovered this from the Contractor.
unpaid.
Clause Employer Contractor
o 32.(1) Termination without Shield: Reserve compensation rights in the event of
Default: The Employer may at termination without Termination Certificate.
any time and for any reason
give the Contractor written
Notice of Termination which
shall have the effect of
immediately terminating the
employment of the Contractor.
Contractor is entitled to
compensation for all damage
and loss suffered by him as a
consequence of the termination
of his employment.
Clause Employer Contractor
32.(2) Termination for Default: If Sword: Ensure the Contractors comply with the contract
final Contract Sum in Cost of provisions so as the project can proceed with
Termination Certificate less diligence and due expedition. Failing to do so
than Completion Cost certified, enable the Employers to terminate the contract
then difference is the sum due without any compensation to the Contractors.
from Contractor to Employer. 32.8 (g)(i)Ensures that Contractor carries out due
Furthermore, if final completion diligence to fulfill contract obligations by having the
by replacement contractors is mechanism to recover cost for engaging replacement
delayed beyond the Contract contractor as well as imposing LDs should there be
Completion Date, then the delay in completion of the works following the
damages certified in termination.
Termination Delay Certificate
would be payable by the
Contractor to Employer.
Clause Employer Contractor
33. Termination by Contractor: The Shield: Entitle to suspend any work and claim for
contractor shall be entitled by a compensations for works already completed, losses
written Notice of Termination and expenses, damages incurred as a result of the
given to terminate his termination. in the event of where Employers are not
employment under the Contract able to comply with regulations based on the grounds
on any of the following grounds in 33-1.
in clause 33-1.
34. Outbreak of War: In the outbreak Sword: Contractors still must comply with the Shield: Subjected to payment claims from the Employer for
of war, either the Employer or instructions given by Architect to execute the the extended protection works
Contractor may at any time by protection work after the notice of termination
notice, by registered post or Shield: Entitled to any work compensation due to war
recorded delivery forthwith damages which is payable by the Government
terminate the employment of the
Contractor under this Contract.
Clause Employer Contractor
36. Antiquities: All fossils, Shield: Secure potential value for the Employer. Shield: If such findings involve the Contractor in any loss
antiquities and other objects of or expense or expense, the Contractor can be
interest or value which may be entitled to additional payment, and EOT where
found on the Site or excavating applicable.
the same during the progress of
the Works.
37. Arbitration: Any disputes Shield: Both Employer and Contractor can defend their Shield: Both Employer and Contractor can defend their
between the Contractor and the right and benefit or attack the other party to fight right and benefit or attack the other party to fight for
Employer in relation to the for their right and benefit through arbitration. their right and benefit through arbitration.
Contract, or carrying out of the
Works, or direction or
instruction or certificate,
arbitration can be required.
Clause Employer Contractor
39. Additional Optional Clause for Shield: Prevent excessive pricing by Contractor to Shield: Enable Contractor to better manage risks of material
Fluctuations: The Contract Sum account for risk of fluctuations in material prices. price fluctuations and provides assurance of being
shall be adjusted upwards or Employer can also save cost in the event of a fall compensated in the event of a hike in material price.
downwards to take account of in material prices.
any rise or fall of specified
material prices during the
Contract
40. Additional Optional Clause Shield: The Contractor can apply insurance excess in any
Permitting Insurance Excess: event as are stipulated in Specification or other
Insurance excess can be Contract Document and may at the Contractor’s
applied. discretion to do so.