Accepted Programme - when is it accepted?

NEC3 and NEC4 Contracts
1

Hi,

We are on an unamended NEC 4 ECS contract with the client (we are a subcontractor) and have the following scenario. No programme was present in the contract and we we submitted our first programme for acceptance at clause 31.1 which we referred to clause 31.2 to ensure that it meets the criteria. We submitted this within 14 days. The Contractor never advised acceptance initially, we didn’t send the reminder, but we did notify a compensation event under 60.1.6 to which we received no response. Over a year later, the contractor has pursued a delay argument against us which we are successfuly defending.

The contractor believes that they do not need to write to accept the programme, despite clause 31.3 stating they must do so. They cited clause 11.2.1 defining an “accepted” programme as still existing as the status of an accepted programme doesn’t change if a contractor fails to write it, i.e an express statement along the lines of “we accept” is not needed to gain an accepted programme.

Our argument is that there needs to be a written correspondence stating the programme is indeed accepted at clause 33.1. Something isn’t accepted unless the other party accepts and conveys that acceptance. The contractor believes acceptance happens regardless of whether the party writes to accept it and seems to cite them “taking care of, or receiving” the programme is a precursor to them accepting it, despite not expressly stating so.

Who is correct? us or the contractor?

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2

Leroy, in my view you are correct.

Clause 31.3 is clear as regards the obligation of the Contractor to notify acceptance or the reasons for non-acceptance within three weeks. Not sure how clause 11.2(1) is relevant in that respect and the argument that acceptance happens regardless sounds nonsensical.

I have a question though in relation to your notifying a CE in accordance wit clause 60.1(6); since the last paragraph of clause 31.3 gives you the tools to deal with the Contractor’s non-response, i.e. to notify the failure and have a deemed acceptance two weeks thereafter (if the Contractor still does not respond), why didn’t you follow that course of action?

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3

Peter,

thank you for your view. regarding 11.2.1, they argue that the accepted programme is put in to definition regardless of whether it is accepted,but after hearing your view, it does sound nonsensical.

Regarding your last point, the notification likely slipped through the cracks, we’re sometimes not as diligent as we should be given many of our contracts aren’t NEC and some of the bosses still do 2M contracts over the phone!

Thank you for your response. Been helpful.

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4

No worries Leroy, take care.

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