NEC ECC: Contractor's master programme showing all items on Critical path?

Hi, we have a Contractor who is designating all items in their Master Programme as critical and placing them all on the critical path. The programme has already been rejected twice, but they are unwilling to change this. Can a contractor do this? They are also showing the critical path doubling back on itself on multiple instances, should the path generally only move in one direction? They are also showing the critical path splitting into more than one path at several points in the programme, again they are saying they can do this. They are designating all items as critical to remove float from the programme. We cannot accept it as it stands but is there any way we get to a conclusion with it? Our client does not have a criteria foe assessing programmes in their Z clauses or other works information.

This is where content knowledge of what is being built comes in. It seems to me that valid reasons for not accepting it could include :

  • it does not show the information required e.g. float which you believe is in there.
  • it is not practicable
  • it does not represent their plans realistically.

As a result, under clauses 64.1 & 64.2 (of NEC3 ECC), you should start assessing compensation events, which won’t be to their advantage.

As Jon says - you reject this programme and you can make your own assessment of all compensation events going forward which will not be in their favour. Still this is very difficult for you to do and if this is the very first programme particularly difficult as you do not even have a first baseline to start from.

I think in this instance you need to sit down with the Contractor and explain why it is in their interest to have an Accepted Programme, and what will happen if they don’t so there can be some common ground of understanding.

It also emphasises the importance of making programme a significant proportion of the tender score so they put the effort in the first place and you could have had some of these discussions BEFORE the contract was signed.

Their programme should be a good representation of their planned activities and a logical realist flow of the order they are planned to do. If they are all linked correctly and sensibly then the critical path will be what it will be, and the float will be what it will be.

Only logical action plan would be a meeting/workshop to try to get to a conclusion. It may help having an external facilitator like Jon or myself to help run that session for you if it is likely to remain two entrenched camps of view points. Get in touch with us if that might be of assistance.

If they have put all programme operations to commence at a ‘late start’ date then it is not clear how time risk allowances are built into this. Although the standard NEC doesn’t have a requirement to proceed ‘regularly and diligently’ many contracts are amended to include this, or something similar, which this programme wouldn’t comply with.

Could making the programme part of the tender process not complicate site activities during construction? For example having an accepted programme, then finding out their methodology for construction is impossible.

I don’t think it really causes a problem at all. Any programme is a snapshot at that time how they plan to do something. If things have changed since tender then so be it - just revise the programme at that point.