NEC ECC: Employer drafting and accepting Contractors's programmes

I’m in a strange position (never encountered before) on a new project. I’m working for the Employer, but they require me to draft and submit multiple Contractor’s programmes for acceptance, admittedly with the input of the contractor. There will be no Contractor’s planning resource, so I’m both drafting the programme and then deciding if its to be accepted. This seems odd to me and possibly fraught with risk. Any thoughts as to how I can ‘re-risk’ this situation? For example, what if I make an error on the ‘Contractors’ programme? Who carries liability??

1 Like

This is not unheard of - but more common at Contractor/Subcontractor level. First question would be why have you given a job to a Contractor who has an inability to produce a programme? It is not difficult to do and there is little excuse. Why would they not want to produce a programme that will be a management tool for them to deliver their own project?

Not withstanding that - if that is the situation you are in there is nothing to stop you working with them and producing the programme on their behalf. However - this is the crucial bit - they have to issue you the programme back to you for acceptance. You then have to accept or not accept the programme (and I doubt you are going to reject it if you produced it). This then clearly makes it their risk if there are any errors.

Can I suggest that there is a conflict of interest here, you cannot both prepare & submit the programme and then accept / reject it! Unless the Contractor appoints you to advise them and authorises you to submit it on their behalf, the programme you prepare is not the Contractor’s programme and cannot therefore become an Accepted Programme under the contract. You face being sued by both the Contractor and the Employer if they fall out over compensation events or other time-related matters such as delay damages!

Appreciate that Glenn good advice thanks. Not at all a situation I wanted to be in and didn’t realise this before I took the project on!

Neil that is exactly what I fear. I’ve stood on both sides of this ‘fence’ for both Employer and Contractor. Straddling the fence feels very uncomfortable…