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NEC ECC: Contract breach and the programme
The NEC3 contracts place great significance upon the preparation and maintenance of the programme. Cl. 31.2 requires that the Contractor include detail of dates when in order to Provide the Works they will need, amongst other things, acceptances e.g. approval of a design. As I’m sure happens on many jobs, Contractor’s may proceed at risk without certain elements in place i.e. they do not have acceptance of the design of an element of works they wish to commence with (for example a pre-earthworks drainage design ahead of the commencement of a main earthworks operations). If this occurs on a contract (a Contractor proceeding without the necessary acceptance in place) how can this be accounted for in the next programme submitted for approval?
If the works without acceptance have already commenced and this pre-dates the submission date of the latest programme submitted for acceptance, the event has already started and should be reported as actual progress. But what if the Contractor’s programme shows continued breach of Cl. 21.2, in future operations i.e. they’re showing other works operations starting without acceptances. Clearly on the one hand, this is a grounds for rejection of the programme by the PM. However, the Contractor may claim that this approach represents a realistic programme.
The essence of this question is, if a Contractor is in breach of contract and this is reflected in their programme, should the PM accept this programme on the grounds that despite not being compliant with Cl. 31 & 32, it shows the Contractor’s actual plans. Does the PM acceptance of a programme constitute complicit agreement with the breach or is the PM covered by Cl. 14.1? If the PM does not accept the programme and the Contractor continues to show future activities without acceptances the risk is an Accepted Programme will never be arrived at. Ultimately this starts from the Contractor being in breach – but my experience is this happens!
I agree with Glenn's view - the programme should represent both the contractual requirements as well as the realistic view of what is actually happening. I put put some notes within the narrative stating that it is acknowledged that this is out-of-sequence, but this is the risk th econtractor has taken on, and therefore has been reflected within the programme. The Project Manager can then accpet the programme (it is unreasonable to reject) but note that the accpetance recognises that the contractor has started out of sequence at their own risk.
It does seem odd that the contractor has taken on this risk, unless there are many discussions taking place giving them re-assurance that the acceptances are coming (with confidence).
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The Contractor should be showing the actual progress achieved and the effect upon the remaining work. If they have taken a punt and started something early before acceptance, then that is what they need to show. It is a risk, as if it end up being rejected then the work they have done may then change and actually show a delay rather than finishing early. So be it though, and at that point they show what they then know.
Quite a risk obviously for them to start without acceptance, but not a reason to reject I suggest unless they know what has been started early will be rejected and therefore not realistic. As you say if they did reject but that is what the Contractor has done anyway you will get to a point where they will never accept but the works will (have to) be proceeding anyway.
Where the Contractor's programme shows his intention to proceed with other works in the future at risk, does Cl 14.1 'cover' the PM for accepting a programme that shows this breach of 21.2.
Yes clause 14.1 does cover the PM in that position. Just because they have accepted a submission from the Contractor does not change their obligation to follow the works Information. By accepting a design or a programme they are not taking on any liability of errors in the Contractor's submission.
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