Section 17(2A)(b) of the SOP Act provides that any part of a payment claim or payment response relating to damage, loss or expense must be disregarded unless it supported by “any certificate or other document that is required to be issued under the contract“. On a plain reading, this means that a certificate or other document certifying the damage, loss or expense claimed by either the claimant or respondent, which is required to be issued under the contract, must have been issued.
A question that arises is whether a payment certificate issued pursuant to the progress claim process under the contract, expressly entitling a respondent to include deductions against the claimant, falls within the ambit of this exception. For example, would Clause 22.2.1 of the REDAS Conditions (3rd Ed), which provides that the interim payment certificates may include deductions for sums which “have been or may become due and payable to the Employer by the Contractor“, come within the Section 17(2A)(b) exception?
This question has yet to be raised before and addressed by the Singapore Courts. Nevertheless, senior adjudicators have taken the position that based on the wording of Section 17(2A)(b) of the SOP Act, it appears that Parliament intended that this section would apply to specific or separate certificates that certify any damage, loss or expense as being due to the respondent under the contract, and not to payment certificates / payment responses, which allow for any deductions to be certified under the contract. That Section 17(2A) was introduced to specifically address claims for damages, loss and expense suggests that a payment certificate, which is ordinarily issued as part of the progress claim process and invariably includes any and all deductions against the claimant, would not constitute a “certificate” under Section 17(2A)(b). Section 17(2A)(b) of the SOP Act would otherwise be rendered redundant.
In this regard, it is possible that adjudicators may consider that a certificate issued under Clause 16.1 of the PSSCOC (2014 ed) – which only contemplates that the Superintending Officer certifies the contractors entitlement to extension of time without actually providing for a certification of the contractor’s period of culpable delay – does not fall within the exception in Section 17(2A)(b). Nevertheless, it remains to be seen whether a Court will find that a certificate issued pursuant to Clause 22.2.1 of the REDAS Conditions and/or Clause 16.1 of the PSSCOC (or such similar clauses) will qualify as a “certificate” under Section 17(2A)(b).