A contractor hasn't got an accpeted programme

NEC3 and NEC4 Contracts General
1

A contract is let, with an agreed target for completion of an accepted programme within 2 weeks of signature. The contractor repeatedly fails to issue a programme for acceptance, or if he does it cannot be accepted as it does not meet the acceptance criteria and the Project Manager is therefore unable to accept it. This situation runs for some weeks. The contractor continues failing to issue, or if he does issue, to get the programme accepted and the project has moved on some way. The contractors latest programme issued for acceptance is created to try and represent the situation at the start of the contract some 3 months ago. The contractor states that the PM needs to accept this programme as the CL 31 issue first and he will then issue a new programme for acceptance (CL 32) that takes into account all of the events, delays, CE’s etc that have occurred since the start of the project.

Questions:

  1. Can / should the PM accept the “backdated” programme? or

  2. Should the Contractors Programme only be accepted if it is current and reflects the events to date?

The remedies available related to withholding payment of 25% doesnt seem to be motivating the Contractor!!

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2

I would try the following approach, in rough order:

  1. withhold the 25% of the PWDD until such time that you do accept their first programme (i think you said you had, to little effect)
  2. instruct them to attend a programme review meeting - all day if necessary to which you want them to address all of the comments that you have rejected their previous programme against. Book a room with a screen and watch them make all the changes that you have requested. Make the point that no-one is leaving the meeting room until such time that you believe the programme is of a standard that you will be able to accept.
  3. emphasize to them that you will be making your own assessments of all CE’s until such time that you do accept their first programme, as clause 64.1 confirms. This is not likely to be in the Contractor’s interest to allow this to happen as I very much doubt that you will make a lower assessment!!

If you are now three months in, you probably have little choice but to accept the original one that should have been accepted on day 1, as you need something to assess all of the changes (that have inevitably occurred) against. If you try and agree the month 3 programme with all of the progress and change already incorporated you will have an almighty struggle to assess change and effect on Completion Date. This is the only time that the Contractor should actually be working up two separate programmes, but then again it seems like they have caused the problem in the first place.