NEC 4, Option A - The accepted programme

Hello,

We are a subcontractor under an NEC 4 option A contract. Clause 31.3 deals with the notifications of the accepted programme. We submitted a programme for acceptance initially and we received no response from the contractor. We did not notify of this non response. Is the programme still accepted even though we didn’t notify or have we lost protection from this clause because we never complied with notifying? we have also been submitting our programme regularly following site updates to which we’ve received no objection.

The wider picture is that the programme and access dates were changed, substantially affecting delivery for a building and essentially pulling it in by 8 weeks while also not responding to the period of reply to our shop drawing submittals, nor answering our design queries for 4 weeks. We want to get time or recompense for this.

60.1.2 and 60.1.3 & 60.1.19 refer to an “accepted programme” that i’m unsure we have. Perhaps 60.1.6 would cover all bases?

Please help.

Hi LeroyS, firstly the programme is not treated as accepted until or unless you invoke the sanction against the Contractor by notifying them of their failure to respond within the 3 weeks allowed - the wording in 31.3 is that you “may” notify, so you can choose to notify or not but it goes on to say, if you notify an additional two weeks is afforded to the Contractor to reply, i.e. accept or not, if they do not respond within the two weeks then the programme is treated as accepted.
I do not believe that you have lost the opportunity to notify, again the use of the word ‘may’ allows you to choose if or when you notify; if it said you notify forthwith then that would be a different matter, it does not.
It is good that you continually issued revised programmes and you should continue to do so but the fact that you have not received any comment cannot be taken as they are accepted; you have to force the Contractor to do their job properly and invoke the time sanction otherwise they will stay silent.
The Contractor is in breach of clauses 10.1 & 10.2, 31.3 and the latter triggers a CE under clause 60.1(6) which you have 7 weeks to notify from the date it happened under 61.3 otherwise you lose your entitlement to have the Prices and Completion Date changed; so notify the CE.
The issue of the access dates is intriguing, the access dates stated in the Contract Data cannot be changed under clause 33.1 the Contractor allows access to and use of each part of the Site on or before the later of the access dates or the date for access shown on the Accepted Programme, but I do not think you are compelled or obliged to start work earlier than the access dates as clause 30.1 clearly states that the Subcontractor does not start work on Site until the first subcontract access date so I would suggest it is entirely up to you whether to start earlier or not. The problem here is that earlier access is not a compensation event, clause 60.1 (2) is a CE if access is not given but not if it is given earlier.
With regards to the lack of reply to submission, again this is a CE under 60.1(6) and you should notify it, you also separately notify early warnings that Completion and the Prices are under threat because of the lack of response.
Clauses 60.1(2), (3), (5) and (19) are triggered by a failure to work to the Accepted Programme, if you do not have an Accepted Programme then technically they cannot be triggered but as you say you do have (6) but you must notify within 7 weeks, you may also use 60.1(14) by referring to clause 80.1 2nd bullet point.
happy to discuss further if you like.

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Wow. Thank you very much for the comprehensive response. This has been insightful. We have notified under 60.1.6 and regarding the access, it was brought forward, the problem being that it was brought forward and changed our detailing sequence and they never responded to our detailing queries to get the earlier building boosted out of the workshop which put us under time pressure to get a building out.

It’s interesting how there seems to be many avenues to achieve the same end result. The last one 60.1.(14) and referring to clause 80.1 is a new one for me and will take note of this going forward and need to be more aggressive at invoking the time bars.

would you suggest going through this notification procedure you outlined in your first paragraph each and every time a programme is revised?

Hi LeroyS, yes I would always notify both failure under clause 31.3 and a CE under 60.1(6) because the programme is so important under this contract that you need an up to date Accepted Programme. The Contractor is in breach of clause 10.1 and probably won’t stop acting that way unless or until they are pulled up on it.
Good luck.

Thanks Steve. How would you address someone saying it’s been “verbally agreed” when this notice is issued? i.e them saying it has been agreed, but not formally putting it in writing? is there another clause or avenue you would cite?