NEC3 Is a programme accepted by default?

NEC3 and NEC4 Contracts Time
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If the PM does not accept or reject a clause 32 programme in the allotted time, does this become the accepted programme by default?

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Contractually, the answer is a definitive ‘No’ as there are no such express provisions saying this.

However, I have heard of a number of adjudicators saying the PM did effectively accept the Contractor’s programme as :

  • there are various incentives which the Project Manager MUST use if he/she actively rejects a programme submitted for acceptance - e.g. start assessing CEs - and they did not do them;
  • the PM / Employer did a number of actions identified in the programme for them to do, before not doing the one of which the dispute is over.

So - taking a hint from contract law and Offer / Acceptance - by their actions it can be reasonably implied that they did accept the programme and the breach is not by the Contractor, so they should not suffer. This seems a reasonable line of argument, but there is no case law to support this.

I personally would like an explicit statement on what happens if the PM does not get back in the contract, much as there is if the PM does not back on a notification of a CE or a quotation.