Acceptance of a programme with dates for the Employer to do things by which were not in the WI

A Question to add to the body of nec3 knowledge

We have a programme that has been accepted by the PM which contains a couple of activities for the Employer to provide things to the contractor such as documentation.

We did not state within the works information that we would provide this information and we certainly did not state that we would provide it by a certain date. However, the contractor included it on his programme and the programme was accepted by the PM. Ultimately we did not provide the information by the date shown on the programme and the contractor has now notified a CE under 60.1(3) and 60.1(5) on the basis that they cannot design an element of the plant until the information has been provided.

Barry – cant see anything too wrong with that!

As long as the Contractor made it clear on the programme that this information was key and had given them a suitable (contractual) period of notice before they needed it. The Project Manager should have reviewed this programme and made sure that he could meet anything that was his obligation to contribute to the success of the project. This would be made easier if the Contractor has clearly identified this is an Employers action/activity – I would add a “responsibility” column to a programme to show if it is Contractor or Employer responsibility. I would then go one step further and filter out all the Employer activities when I issue the programme and they can see very clearly which items are theirs to action particularly in the next four weeks. It should also indicate if this is critical or has float. Just because an Employer is late with information does not mean it will have any financial effect to the Contractor as this subsequent activity may have float which is shared under the contract.

Contractor should also have thought about raising an early warning IF they had reason to believe that the Employer was indeed going to be late in producing a piece of information or in providing a free issue material.

Far be it for me to differ but I see a different point of view.
The particular Data mentioned in the contractor’s programme to be handed over at a certain time was, as stated not part of the WI. Thus, it presumably became apparant during the construction phase that such data existed at all. Can one also presume that this data is available from another source, i.e not only from the Employer? Could the works be done without it; in which case why was it not part of the WI in the first place?

Notwithstanding, undoubtadly a CE is due under 60.1(3) but whether this has a cost implication or not is open to question for the reasons given above. An EW by the contracor would perhaps only be applicable once the date for provision of the data had passed. Equally the Employer could have issued his own EW once he realised he could not provide the data on time…or at all.

Glenn - this question highlights that the Programme is for the benefot of both Parties and the date by which an Employer may have to provide something can be a “moving feast” hence the PM should ensure that he is aware of any dates or information stated in the WI or they may arise during the contract.

In this instance the Contractor seems to believe that merely putting it is the programme that has been accepted is adequate. The Contractor in my mind has an obligation to give an EWN. He obvioulsy identified this requirement (exisiting or new) when updating his programme and this should of been highlighted to the PM.

In ant CE which arise the PM would be quite right consider if the Contractor gave an EWN that he could of done.