A Contractor in his quotation for a CE, has stated that the accepted Programme was incorrect and has “corrected” it, citing the Society of Construction Law Delay and Disruption Protocol, "“Prior to determining the effect of an Employer Risk Event on the Updated Programme, any patently unreasonable or unrealistic logic, constraints or durations should be corrected”. This “corrected” Programme is used to demonstrate a period of prolongation. Is this valid? It seems to cut across clause 63.3 and potentially renders the whole process of programme submission and acceptance somewhat pointless since one cannot rely of the Contractor’s programmes.
The SCL protocol is not necessarily relevant at all here as that does not consider the specific rules of NEC contracts. However, those rules are broadly there within the contract anyway. The NEC3 contract does say you use the last Accepted Programme to assess a CE against, but what if that last accepted programme was four months old? Could you ignore progress and other things that have happened and expect to get a fair result? If the Contractor was in delay within that four months it would mean it is not taken into account.
The intent has been clarified in the precise wording of NEC4 - which now states (clause 63.5) that events which happened since the last Accepted Programme and the date you have now become aware of the new CE WILL be taken into account first. This is also implied in NEC3 (you can download this article I have written back in 2013:
Such events would be actual progress, other compensation events and major changes in logic. It would have to be proven but would form part of the assessment. You would have to agree though first that the changes to the programme since the last Accepted were real, relevant and necessary - otherwise you can make your own assessment as PM. They can not just make up a change since the last accepted programme to make things critical and maximise entitlement.
Generally agreeing with everything Glenn says but a couple of small extra points…
63.3 requires you to consider the length of time that, DUE TO A COMPENSATION EVENT, planned Completion is later than planned Completion as shown on the Accepted Programme. I have capitalised the important bit. The analysis must show the impact of the CE. A logical way of dealing with that, and the intent of NEC4, is that you ensure the last Accepted Programme properly functions as an analysis tool.
the alternative to the pragmatic approach above is that all parties must accept that, warts and all, you just use the Accepted Programme as it is. This will rarely if ever show the effect of the CE on planned Completion (the purpose of 63.3) and will almost inevitably be wrong. The assessment will however be much simpler.
The question is then really was this mechanism intended to try, in a pragmatic way, to find the “right” answer to the impact of the CE or was it meant to quickly find an answer that would be wrong but equally wrong probably for all parties. Given the stark choice the pragmatic approach is where most people land.
One other point I would add is that the Accepted Programme is primarily a management tool to forecast and control works in the future. The contract is really geared up to support that use. That does not necessarily make it the best forensic examination tool. However, if everyone is working together properly (ie the PM properly reviews the programmes as submitted and promptly gives informative feedback or acceptance) then there should be few problems. If an Accepted Programme has slipped through with a significant logic failure both parties are at fault and both need to take responsibility for finding an appropriate solution.
The accepted programme current at time of event awareness has been used and a “what if,” applied to a specific activity in the programme for the full duration of the CE works to see what if any effect this had on planned completion. There looked to be sufficient general float such that planned completion was unaffected. Though including prolongation there was no programme submission with the original quotation, this had to be requested. The Contractor asserts that their programme that was accepted contains multiple hard constraints that make the accepted programme unsuitable for performing a dynamic analysis so have “corrected” it.