NEC ECC: Contractor sent to site without an accepted programme

We were a Contractor on a project and we submitted a Clause 31 programme after contract signature. The Project Manager did not accept the programme. The contract had one access date for the whole of the works. The date for access passed, as the Employer was not ready to give access. The Project Manager then insisted we start work on site to construct accommodation works without an accepted programme. We objected but eventually agreed. What is the contractual position on programme here?


There is no obligation to have an Accepted Programme before starting works on site. In theory you could go the whole project without one (but please don’t test this on your next project).

The contract data states starting date, access date and Completion Date (along with any sectional/Key Dates) which is what you have based your tender price upon. You are obliged to meet those dates, and the only way that they can be changed is through a compensation event. So in this case it would be in your interest to start. The Completion Date will not be changing, and any associated delay damages will not be decreasing - so it is in your interest to commence works. When the Project Manager did not accept your programme they have to tell you why in sufficient detail that will allow you to correct it and re-submit.

Always a good idea at tender stage to spent the time and effort to have a good robust tender programme and reference that in contract data part 2. That would then become the first Accepted Programme (assuming contract data part 2 with that programme referenced is included within your signed contract) and take some pressure from the project team as they commence the works. Then you are obligated to submit revised programmes at the duration stated in contract data part 1 for acceptance - and you should do everything you can to ensure that you have a new programme accepted every period.