The importance of 3 Core NEC Time Clauses when submitting a programme

Via our chat function we received an interesting question…

Morning , just a quick query under NEC4 when you submit a clause 32 programme do you use the clause 31 or last accepted clause 32 as Baseline. Many planners are using different methods I use the accepted Clause 31 and add CE’s to accepted Clause 32 and then add to Clause 31 is this correct ?

Regards Mr J [real name redacted]

Unfortunately Mr J (real name anonymised) was in a rush and did not provide their e-mail address for us to post an answer, but we still thought it was a cracking question…

So we thought we would do it here!

Programme Acceptance

It is important to first explain the key differences in Programme Acceptance between NEC3 and NEC4 Contract Types.

As covered in our past article, within NEC3 in the absence of a Project Manager’s response, the contract provided that the programme was simply ‘not accepted’, putting all the risk onto the Contractor in allowing the Project Manager to to withhold 25% of the price of work done to date if the Contractor does not provide a programme in accordance with Cl.31.

Within NEC4 the position is improved and the contract includes a provision whereby in the absence of a Project Manager’s response to the submitted programme within two weeks, the Contractor can serve notice of a further week. After this, if there is still no response then the contractor’s programme is ‘deemed accepted’ under the contract.

Preparation of Compensation Events Costs

Another key difference between NEC3 and NEC4, is that the newer version allows recovery of costs even where the Project Manager proposes an instruction which is not accepted. The past exclusion for the cost of preparing compensation events has been deleted and is now recoverable under all Options. There is now the introduction of new CE clause 60(1)(20) (“where the PM notifies the Contractor that a quotation for a proposed instruction is not accepted”).

3 Core Time Clauses

Within NEC Professional Services Contract, there are 3 core Schedule related clauses within the Professional Services Contract which we shall use to answer the original question posed:

• Clause 30 Starting, Completion and Key Dates
• Clause 31 The programme
• Clause 32 Revising the programme

To answer Mr J’s question the two key concept to understand is that there is a “Planned Completion Date” and the ‘Completion Date’.

Under Clause 31.2 the programme issued for acceptance will show the “Planned Completion Date”, which will be driven by the any event that affects the critical path.

The other is the “Completion Date“, which can only be changed ‘in accordance with the Contract. This reflecting that the contractor is contractually obliged to achieve ‘Completion’ on or before the ‘Completion Date’, under clause 30.1.

So under Clause 14.1 “acceptance of a programme” cannot and will not change that responsibility of meeting the ‘Completion Date’ in Clause 11.2(3), that being ‘Completion Date’ in the contract data. NEC contract documentation does set out when the date can be changed (eg., 44.2, 36.3 and 65.4), however acceptance of the programme, does not by itself change the “Completion Date”.

As covered under clause 31.3 the Project Manager has to accept or not accept a programme within two weeks of submission. Any non-acceptance having to be communicated back to the Contractor in sufficient detail to Contactor to correct the submission (via a separate response under Clause 13.7). The four reasons reasons for non-acceptance are:

1. Contractor’s plans shown are not practicable
2. It does not show the information which this contract requires
3. It does not represent the Contractors plans realistically
4. It does not comply with the Scope

As such the programme should show the starting date, access dates, key dates and completion dates when the Contractor plans to meet each condition stated for the Key Dates. It should also show the Planned dates when the contractor plans to complete work required to allow others to carry out works. It also needs to show the dates when the Contractor needs access to the site if this is later than their planned access dates. Acceptances, plant, materials and other things to be provided by the Client should also be identified. Finally for each operation, a statement of how the Contractor plans to do the work should be given.

If not met, the Project Manager can respond under Clause 13.7 on the reason for non-acceptance. If the Project Manager chooses not to accept for any other reason, then by default that would be a compensation event under 60.1(9).

In revising the programme under Clause 32.1, to update the accepted programme under Clause 31, Mr J should remember…that the acceptance of a programme does not change the responsibility to ‘Provide the Works’ in clause 11.2(13).

However it should be borne in mind that Clause (14.1) states that acceptance of any communication does not transfer liability away from the Contractor to comply with their obligations under the contract. And so, the “Completion Date” as defined by 11.2 remains. That said, acceptance of the programme is still significant as it recognises that the Client has given affirmation that from their perspective that the programme is realistic, practicable and shows the information that the contract requires.

The “Accepted Programme” as laid out under Clause 31, and defined under 11.2, is thereby the reference point for all compensation events and change that occur. If there is no recent “Accepted Programme” then commercial resolution is made the more difficult as reference will have to be made to the last “Accepted Programme”, which will inevitably differ from the latest “Revised Programme” under 32.1.

The workflow below can be used to explain a scenario how the under 32.1 the Contractor is responsible for correcting all Work which the Client has found to be defective or which fails to conform to the Contract Documents whether observed before or after Substantial Completion.