The NEC standard form of contract was introduced 20 years ago with its core provisions for the programme fundamental to the management of time, risk and opportunity and sometimes referred to as its ‘beating heart.’
NEC3 adopts a different approach to other standard forms of construction contracts with its prescriptive requirements for the development, acceptance and revision of the programme. Problems may arise where the submission and acceptance of the first programme takes far longer than anticipated under the contract, leaving both the contractor and project manager with no accepted programme and hence a common baseline from which to plan, manage or monitor the progress of the works or assess the effect of any change; this can provide fertile grounds for a dispute.
NEC3 adopts a different approach to other standard forms of construction contracts...
NEC3 makes provision for avoiding this situation by allowing a programme to be identified in the contract data. This is not without potential problems as the tender process can overlook the question of the tender programme’s compliance.
Acceptance by the project manager
Core clause 31.1 requires that if a programme is not identified in the contract data, the contractor should submit its first programme for acceptance within the period stated in the contract data.
Under core clause 31.3 the Project Manager (PM) is required to either accept the programme or notify the contractor of his reasons for not accepting it within two weeks of the contractor submitting a programme for acceptance. The contractor is further required under core clause 32, to submit an updated and revised programme at regular intervals from the starting date, as stated in the contract data.
Under core clause 50.3, a powerful incentive is provided to the contractor to ensure that a first programme is submitted within this period, as quarter of the price of work done to date is withheld in assessments of the amount due to the contractor, until a first programme demonstrating the information required under the contract is submitted.
Identification of the programme in the contract data
Whilst there is no express requirement for the programme identified in the contract data to comply with core clause 31, core clause 11.2(1) clearly defines this as the accepted programme until such time it is superseded by the acceptance of a subsequent programme.
...as a consequence of post tender negotiations, the contractor’s tender programme may no longer reasonably demonstrate the obligations of the contractor to provide the works.
The programme developed and submitted by the contractor as part of its tender is generally intended as a demonstration that the contractor has understood its obligations to provide the works and to inform the employer of any key assumptions regarding the timing and sequencing of the works. It may therefore not be fully compliant and / or sufficiently detailed for the purpose of an accepted programme. Furthermore, as a consequence of post tender negotiations, the contractor’s tender programme may no longer reasonably demonstrate the obligations of the contractor to provide the works.
In the event of a programme being identified in the contract data, care should be taken to ensure that it is compliant with the contractual provision or given the realities of available information, compliant as far as reasonably practicable given its accepted status under core clause 11.2(1). This will ensure that a credible baseline is provided for the initial stages of the works i.e. up to the acceptance of the first programme submission.
In the event of a programme being identified in the contract data, care should be taken to ensure that it is compliant with the contractual provision...
This approach can provide further assurance in the event of non-acceptance of the first programme submission or the contractor failing to make a submission in the first instance. In such circumstances, the programme identified in the contract data will remain the accepted programme and consequently, provide a basis for inter alia assessing the progress of the works and the quotation and assessment of CEs until such time a revised programme is accepted.
- There is no express requirement for the programme identified in the contract data to be compliant with core clause 31.2 but this is defined as the 'accepted programme' under core clause 11.2(1);
- The identification of a programme in the contract data may reduce risk to both the employer and contractor;
- It may not be possible or reasonable for a contractor to submit a tender programme fully compliant with core clause 31.2 or provide a fully compliant programme for identification in the contract data;
- If identified, this should, as far as reasonably practicable, be compliant with the contractual provision and sufficiently developed to provide a credible baseline until such time the first programme submission has been accepted;
The development of a working or accepted programme prior to the commencement of works on site is also recommended by both the ‘Guide to Good Practice in the Management of Time in Complex Projects’ (CIOB) and the ‘The Delay and Disruption Protocol’ (SCL).