As a sub-contactor we have had a programme rejected because it doesn’t meet the Key Dates previously instructed by the client.
The reason they have given is: “it does not comply with the Subcontract Works Information - the revised Milestones Dates instructed under Instruction X.”
Do the Key Dates in the Contract Data form part of the Works Information?
My understanding that if the programme is realistic, practicable, contains all the scope and what is required under 31.2/32.1 then the client should not be able to reject the programme?
No this is not a valid reason for rejecting a programme. There are only four reasons to reject a programme and it does not fit one of the four reasons. The contract data is not part of Works Information.
A Subcontractor might genuinely not be able to meet a date - and by rejecting it will not change that fact. By accepting the programme will equally not be the Contractor accepting liability in the Subcontractors delay. The Subcontractor will still be liable for cost incurred if a Key Date is missed, or liable for delay damages if they miss a sectional completion/ Completion Date.
It is a common misconception out there that they can reject simply because they do not like the end date!
Key Dates is a defined term at clause 11.2(9) which the Contractor has an obligation to meet at clause 30.3, the Key Dates are found in Contract Data part one. The programme requirements at clause 31.2 require the Contractor to show the Key Dates and also when he is planning to meet the Key Dates. The only mechanism for changing a Key Date is by compensation event, if the Contractor can demonstrate that the event will delay when he was planning to meet a Key Date (clause 62.2 and 63.3).
Therefore the PM has no right to instruct changes to Key Dates per se, however a PM’s instruction may impact on a Key Date, for example additional works i.e. a change to Works Information clause 60.1(1) may delay the Contractor from meeting a Key Date.
So what the contractual status of “Milestone Dates” (which is not an NEC term) stated in the Works Information is and your liability to achieve them will be down to what it says in the Works Information. Technically a “Milestone Date” (whatever that is as the NEC doesn’t tell me) is not a Key Date therefore the provisions I’ve mentioned above do not apply to them. There may however be other obligations imposed on you in the Works Information. If not then the PM has no right to instruct changes to Key Dates and that instruction does not have to be complied with as it isn’t in accordance with the contract (clause 27.3).
As has been said - As long as the programme shows what the contract requires there should be no grounds for rejection. Likewise, if the Planned Completion date/s run beyond the Contract Dates - showing a reliastic programme, then this is not grounds for rejection. The only catch is potentially “Clause 32.1 - how the [sub-]contractor plans to deal with any delay…” - Your programme narrative should specify the reasons for delay, and perhaps potential mitigation measures available/ proposed.