NEC ECC: Can I accept a programme submitted by the contractor that does not meet the key dates stated in Contract Date Part 1?

There is a possibility that the key dates are not possible to meet due to the possible lead in times for Statutory Undertakers work stated in Appendix 1/16

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From the circumstances you describe, it would seem that you should accept the programme. If the Contractor were to amend the programme so that the key dates were met, then you would have to not accept the programme because it would not be practicable (first bullet of Clause 31.3).

It’s not clear from your question whether the lead times were stated in Appendix 1/16, or merely the SU works, but if the former then a programme showing earlier dates would also have to be rejected because it does not comply with the Works Information (fourth bullet).

Yes, you can. The relevant requirements for NOT accepting a programme in clause 31.3 are that (in shorthand)

  • it is not practicable,
  • does not show the info the contract requires
  • does not represent the C’s plans realistically, or
  • does not comply with the Works Info.

None of these are something like ‘does not show Key Dates etc as required in this contract’.
In other words, the emphasis is on realism and practicality, which may differ from what you want to hear.

Having said that, related to your extra sentence of explanation, is sounds as if it may be unlikely that they will hit the Key Dates stated. Consequently, I would question whether the programme is realistic or practicable and hence whether I would accept it on those grounds.

On a practical basis, I would say that you you should be showing as an activity/milestone the “Key Date (Completion)”, but a second milestone showing “planned Key Date (Completion)”. This then allows you to show the two milestones as to what the Key Date is and when you plan to finish in relation to that date. The fact you are showing that you are planning to finish that Key Date late is NOT actually a reason to reject the programme - and indeed would be a bit ridiculous if that is the true reality and there is nothing they can do. There is however remedy against the Contractor if they miss the Key Date, as any cost incurred by the Employer will be charged to the Contractor (clause 25.3). If a Key Date is missed/will be missed due to a reason that is not the Contractors fault - then this can be assessed as a compensation event which in turn will (by agreement) move the Key Date.

In fact, the contract requires the Contractor to do as Glenn says : show the Key Date (1st bullet of 31.2) and then the date when they will achieve them (5th bullet of 31.2).