NEC ECC: Clause 31 Programme Status

Currently a NEC3 Option C contract which is circa 1 month in doesn’t have a Clause 31 accepted.

Despite numerous submissions the Principal Contract has not addressed issues and acceptance has been withheld on ground of the programme not being practicable or in accordance with WI.

Most importantly it has been highlighted that the programme has negative float. After the 3rd attempt the Principal Contractor has acknowledged that there is an issue with the programme and it having negative float.

Whilst addressing this it appears that all terminal float will be lost. They propose to change the programme altogether as a result. Is this the correct approach. Should they first get the Cl31 accepted based on what the tender programmed was (with corrected logic and links) and then look to recover and/or resequence works in Cl32 submission.

It feels that allowing them to change the programme completely means there is no record of the original intention, the programme they won the tender on, nor any trail of the problem if wholesale changes are accepted on the 4th Cl31 submission.

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I would agree that you need a first “baseline” agreed which is the Contractors original intent before they start how they are planning to carry out the works and where their planned Completion is in relation to Completion Date. You want this first programme accepted so that when you start to get progress and also compensation events you have something to assess it against.

The first programme should be how they plan to do the works. If they have had a change of mind of sequence compared to the tender, I would not necessarily agree that you have to accept the original concept first and then accept the revised proposal. At this stage there are no compensation events and no progress, so which ever programme you have would make no difference in liability. I think the important thing for the first clause 31 programme is that it is how the Contractor could have achieved the works before any progress or CE’s are taken into account. Subsequent clause 32 programmes will be looking at CE entitlement

If you insisted on the original concept being the first clause 31 programme, they would follow that immediately with their first 32 programme issued one day later showing revised concept still with little progress and no CE’s - so I think it will get you to the very same point.

Most important thing is that you agree the first clause 31 programme as soon as possible, as very soon you will have progress and compensation events that will creep into the mix which may cloud judgement or muddy the waters on how things should be assessed.