We have a client that has deleted Clause 31 from the contract. However, most (if not all) other references have been left in place (including Clause 32 and 60.1 (3) and 11.2 (1).
On this basis, how do you define what an “Accepted Programme” is if the client have no accountability to Accept it?
Can you still utilise Clause 60.1 (3)? Can you simply use the last submitted programme to impact CE’s with a statement around no programme response, therefore assume agreement?
To date, no comments have been issued back to the contractor following programme submissions.
If they have not deleted the definition of the Accepted Programme and you referenced a programme from Contract Data part 2, then there will be an Accepted Programme in place, just not necessarily an up to date one.
There is no ‘treated as accepted’ provisions for the programme in NEC3. However, there is an argument for saying that if the PM and Employer act as if I programme you have submitted is accepted, then ultimately it will deemed to be accepted under estoppel by conduct.
Specifically:
- if the Employer and PM do ‘enough’ things in your submitted programme to the timescales in it (the argument would be over what is ‘enough’); and
- if the PM instructs you to submit quotations, rather than making the assessment themselves (as per clauses 64.1 and 64.2) and
- uses the programme you have submitted as the basis for evaluating quotations, both in change in Prices (which doesn’t matter under option E) and delays to the Completion Date (which would). This would ideally be evaluating Contractor quotations in the previous point against that programme, but could be if the PM is assessing for another reason.