NEC4 - Accepted Programme

We are the Project Manager on an NEC4 ECC. In the Scope, it is stated that a working area would temporarily provided to the Contractor by the Client (used as stockpiling area by the Contractor) and this area has to be handed over to the Client as instructed by the PM. It was later instructed by the PM that this working area should be handed over to Client on a certain day (let’s say in June)
During this period (before June), the Contractor submitted a programme for PM’s acceptance, but this programme was created based on the assumption that the temporary working area would be handed over to Client later than June. Unfortunately, we overlooked this wrong assumption and accepted the programme.
It is now claimed by the Contractor that it will be a compensation event if this temporary working area has to be handed over in June according to cl. 60.1(3) “The Client does not provide something which he is to provide by the date for providing it shown on the Accepted Programme”.
But we disagree and would like to seek some advice.


Maybe I am playing with words here, but the Client has already provided the working area; therefore I don’t see how the CE would arise in accordance with cl. 60.1(3). As you said, the Scope states that the working area is provided on a temporary basis, subject to the PM’s instruction to be handed over back.

Even if such a CE arose - which does not seem so - until June (whereon the CE would allegedly occur) you will have the opportunity to accept further revised programmes (assuming monthly submissions but you can also instruct a revised programme at any time - see clause 32.2) where you can seek the correction of the error on the ground of compliance with the Scope (clause 31.3 - 4th bullet point).


From their point of view, this area cannot be provided during the period between June and the handover date shown in the Accepted Programme, so compensation event will arise according to cl. 60.1(3).

Is it a correct interpretation of this clause?

Besides, they refused to correct this error in the revised programme, which is expected.

Hi GYG Contractor obligation is to provide the works in accordance with the Scope (clause 20.1), and his programme appears to contradict the requirements in the Scope but he still needs to comply with the constraints in the Scope see 11.2 (15) and 11.2.(16). PM should resolve this ambiguity between the Scope and Programme (17.1). Clause 17.1 is silent of whether its a CE. I think not in this case. Clause 32.2 also allows the PM to instruction teh Contractor to submit a revised programme as well and this is not a CE and the PM can also not accept/reject the revised programme if it doesn’t comply with the Scope (31.3). As you pointed out whilst there is a CE for not complying with the programme, this doesn’t allow the Contractor to ignore the Scope and contradict it. So in short i think you are right to disagree with him. My only reservation is that your acceptance of the programme might fit within bullet point 4 clause 31.2 “the order and timing of the work of the Client and Others as last agreed with them by the Contractor or, if not so agreed, as stated in the Scope” but presumably the Client didn’t agree the change just the PM accepted the programme by accident, if so the PM should instruct them to correct the ambiguity and instruct them to reissue the programme and the client will comply with the revised programme so not CE. Hope that helps.

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