On what grounds can a Project Manager reject a programme submitted for acceptance by a Contractor?
- any grounds
- if planned Completion not shown
- if no provision for float
- if no access dates shown
My recent NEC trivia question has demonstrated a sound understanding by the majority of the programme submission and acceptance criteria under an NEC contract, with 90% of those who responded correctly identifying that all of the potential answers to the question were correct.
Notwithstanding this understanding, my experience remains that Contractors are often reluctant to provide a fully detailed programme as required under clause 31.2; and Project Managers are often reluctant to accept Contractor's Programmes under Clause 31.3. Either way, these approaches to submission, review and acceptance of the programme can undermine the intent of the contract and prevent management of the works and administration of the contract in line with best practice.
Not having not having an up-to-date realistic programme in place even for a short period means neither side will be clear on liability in terms of costs and also liability in terms of the Completion Date. The longer this situation persists, the harder it will be for the Contractor to project and Project Manager to assess Compensation Events accurately.
For the avoidance of any doubt, the Contractor's programme when submitted for acceptance must include all of the information listed at Clause 31.2, including the start date, access dates, Key Dates and Completion Date. The Contractor is also to provide for float, time risk allowance, health and safety requirements and procedures set out in the Contract, as well as any other information which the Works Information requires the Contractor to provide. The Contractor should familiarise themselves with these requirements and ensure all required information is added to the programme before issued for acceptance.
Under clause 31.3 of the NEC Contract, it is then for the Project Manager to either accept a Programme or not within 2 weeks of submission. Where the Project Manager decides not to accept the programme, he must notify the Contractor with reasons why. Under the Contract there are four reasons for acceptance not to be granted:
- Contractor's plans shown are not practicable
- It does not show the information which the Contract required
- It does not represent the Contractor's plans realistically, or
- It does not comply with the Works Information.
Concern by the Project Manager that by accepting the programme, they are in some way accept liability for Compensation Events, particularly where the programme is showing the Contractor's planned end date beyond the Completion Date, is not a valid reason for failing to accept a programme.
Under NEC4, Clause 31.2 now provides:
“If the Project Manager does not notify acceptance or non-acceptance within the time allowed, the Contractor may notify the Project Manager of that failure. If the failure continues for a further one week after the Contractor’s notification, it is treated as acceptance by the Project Manager of the programme.” [Emphasis added]
Provided the drafters out there don’t remove the deemed accepted wording when preparing their sheets of Z clauses, this is undoubtedly helpful and should hopefully reduce some of the issues that we currently see in NEC disputes on compensation events, particularly when arguing for an extension of time!