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NEC ECC: Contractor Programme stated in Contract Data Part Two

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I would like to seek clarity on an issue which has arisen on a live project, being delivered under NEC3 ECC Option A.

The Contractor has submitted to the PM a clause 31 programme for acceptance, however the PM is claiming this programme will be considered as a clause 32 revised programme.

The reason for this is that the Contractor has, within Contract Data Part Two Optional Statement, stated the tender programme to be the programme identified in the Contract Data.

As stated within clause 31.1 - 'If a programme is not identified in the Contract Data, the Contractor submits a first programme to the Project Manager for acceptance within the period stated in the Contract Data'.

Questions:

1. Is the PM correct?

2. If a Contractor completes this Optional Statement within Contract Data Part Two, should the programme as part of the tender evaluation then be assessed against clause 31.1 criteria?

3. Does the Employer have the ability / permission, before going to tender, to strike out this Optional Statement within Contract Data Part Two, hence removing the opportunity to state his tender programme?
asked Nov 22, 2019 in General by NECUSER1988 (460 points)  

1 Answer

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Yes they are correct, but not quite sure what the problem is. People often get hung up on a clause 31 or clause 32 programme but the first one is what people typically refer to as the "clause 31" programme. After that any revised programme needs to be in line with both clause 31 and clause 32, and one accepted becomes the new Accepted Programme and the new baseline to use to assess future change/compensation events against. What ever the first "clause 31" programme was will be irrelevant by the time you have had the third programme accepted as you only ever compare back to the last Accepted Programme.

If the programme issued by the Contractor is referred to in CD2 is any good I as the Client would be happy for it to remain. If it wasn't any good, then I would ask the Contractor to remove that reference before it becomes part of the signed contract, and expect them to submit the first programme (clause 31 programme in your language) within the period stated in CD1. At this stage neither party is in contract with each other so they would have to mutually agree that the programme is/is not included.

Having said that, a programme issued as part of the tender will not always fully comply with clause 31.2. Although it is a good idea to make it compliant or at least as compliant as possible, it does not prevent it from becoming included in CD2 and hence the first accepted programme by default. Subsequent programmes would however need to fully comply with 31.2 and by then also 32.1 - and could be rejected if they are not.
answered Nov 22, 2019 by Glenn Hide Panel Member (78,720 points)