(1) Explain your problem, don't simply post "This isn't working". What were you doing when you faced the problem? What have you tried to resolve - did you look for a solution using "Search" ? Has it happened just once or several times?
(2) It's also good to get feedback when a solution is found, return to the original post to explain how it was resolved so that more people can also use the results.
Can a PM accept a Programme with Caveats?
My view is No its either Accept or not accept siting 1 of the 4 reasons.
My PM has been adding caveats to his accpetances for a while now, but essentially this would allow him to have a get out clause if for example a third party delayed the works and he had added a caveat to say third party must comply with programme dates or to that effect.
If the answer is no, where does it refer to this in the Contract so I have some reference to back up my argument.
Any thoughts?
Thanks
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I can see the benefit of commenting in terms of slight changes to incorporate into next revision (therefore to avoid unnecessary non acceptance) but only if the changes are not significant alterations, otherwise he should rightly not accept the programme.
In this case however the comments appear to be a checklist of requirements which the PM writes to avoid having to interrogate the programme upon each submission, and in effect he does not review the programme but instead accepted based on his statements being fulfilled.
In essence he is trying to give him self a future get out clause should he need it, but my view is if he accepts the programme he cannot then backtrack based on his requirements not being fulfilled.
I am a consultant who carries out training in the NEC form of contract and i strongly advocate acceptance with comments as a practical contractual tool. The comments should be relatively small items that need to be considered or corrected for the next submission, but do not prevent the overall programme being accepted.
Too many projects are operating without an accepted programme which is no help to either party. We have discussed this recently in a LinkedIn group discussion - "Project planning / management under the NEC form of contract" if you would like further considerations, and also there is guidance material about this in my website: www.gmhplanning.co.uk
Regards
Glenn
Tony,
Based on what you've told us, I agree with your approach -submit your CE under Clause 60.1 (5) and based on the latest approved programme.
If the programme you recently submitted and he rejected did not allow enough time for the 3rd party works, then the PM was within his rights to reject it. Of course decreasing the duration of the 3rd party activities may well have decreased the time impact of the CE you're about to submit, so PM may have shot himself in the foot here.
Before submitting a CE, it's worth confirming that the PM is wrong in his assumption that you are responsible for the 3rd party delays. -This should only be the case if you're working under a modified version of the contract, or he has issued you with an instruction to that effect (which would be grounds for a CE anyway)
Mike is also correct that the NEC contract form is designed for, and dependant on, a co-operative relationship between Employer and contractor. It may be worth trying to agree a way forward with the PM before submitting the CE to try and retain / build a good working relationship (if he has a contractual relationship with the delaying 3rd party, he may be able to pass the pain onto them for example), but you do have contractual right on your side if he doesn't want to play ball.
Good luck!
Hi Tony
The relevant programme is the last one to receive approval.
Impact the 3rd party works on that and then see if any resulting delays can be mitigated without cost.
Submit that programme for approval.
Remind your PM that the NEC concept is to avoid delays by co-operation - not conflict.
Good luck and best regards
Mike Testro
Thanks for your replay, as i thought there is no reference to them therefore they surely have no contractual relevance, however trying to explain this to the PM is another matter.
The issue here is that the PM believes it to be our responsibility to co-ordinate a 3rd Party and ensure they have completed theirs works in time to not delay the programme. However we are clear it is not our responsibility and are sure that the 3rd party has been aware of what we intend to do and when to do it.
However the 3rd party have only recently become clear of what they are actually required to do (and now the timescales being tight have potential to cause delay), we have no contractual connection with the 3rd party but the client does.
The PM has just rejected the last programme submission having held on to it for 4 weeks with no response and having sited this issue of the 3rd party works as not being adequate enough and not allowing enough time.
At time of submission we knew are resonsibility the 3rd party knew what and when we we intended to do, we knew no issue of the 3rd party not being aware of their work requirements, and the programme has had months between the start of the works and these contentious works, therefore we believe the Employer is at fault of not working closer with the 3rd party. Therefore not only was he wrong to reject the last programme but now we will raise an NCE impacting the last accepted programme (which will have a greeater impact than this newly rejected programme) and push for more time.
Would you share the same view?
Broadly the answer is no. Caveats are not explicitly banned by the contract clauses, but they are not refered to either and hence have no contractual weight.
Some relevant clauses:
Clause 13.7 states that notifications should be communicated seperately to other communications. So if your PM wants to use Clause 17.1, he should not be just adding a caveat to the programme acceptance communication
Clause 17.1 can be used to clarify any ambiguities. -eg if the programme is not clear about 3rd party dates the PM could issue an instruction to clarify. Though since this is an instruction, it could in iteslf trigger a CE.
Clause 31.2 details the information required on the programme. this includes "the order and timing of the work of the Employer and others" -So the programme should be clear about 3rd party work anyway, and it not being so is grounds for non acceptance or potentially a seperate clarification instruction under Cl 17.1.
Clause 60.1 lists what consitutes a CE. this list includes:
- "The Employer or others doe not work within the times shown on the Accepted Programme" -So a 3rd party caveat accopmanying programme acceptance will probably have no weight, if the 3rd party works were correctly shown on the accepted programme
-"An event which is an employers risk stated in this contract". So if 3rd party is employers risk, the caveat again would be useless.
Email: PPadmin@planningplanet.com
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