NEC ECC: Remedial options of dealing with a Contractor who does not perform using the NEC3 ECC

We have been struggling to get a correct programme from the Contractor. We sent Early Warnings but they still submit incorrect programmes and do not submit on the deadline given.

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The sanction within the contract is in clauses 64.1 and 64.2 whereby the Project Manager has a contractual obligation to start assessing compensation events if the Contractor does not submit a programme for acceptance when they should do or it is not accepted by the Project Manager for a reason stated in the contract.

Given that the PM will :

  • naturally be more pessimistic about the assessment - but still needs to be impartial - than the Contractor about the value of any compensation event and
  • will not necessarily be aware of all the effects of the compensation event (not helped by having an out of date &/or inadequate programme
    these are highly unlikely to be as much as the Contractor would submit.

thank you for the response Jon, however we are referring to the project baseline programme. There is currently no CE

If this was the first programme that has not been accepted then under clause 50.3 you can withhold 25% of their Price for Work Done to Date (which is cumulative). That is only on the first programme however (unless you have a Z clause to say and on subsequent programmes).

If they do not submit subsequent programmes showing the information that the contract requires, the Project Manager makes their own assessment of future compensation events (see last bullet of clause 64.1) which is unlikely to be in the Contractor’s interest to allow to happen for reasons Jon has already explained.

So is that a programme submitted for acceptance ?