"The Programme Under NEC3: The Unacceptable Truth" by Ewen Maclean

Introduction

The programme is at the heart of the NEC3 contract and is central to its administration, particularly the commercial function, as well as being a key management tool for the timely delivery of projects. Indeed, some commentators say that the NEC is so much of a management tool that it suffers as a contract by way of comparison.

The programme can be identified in the contract data part two, where there is also an option for the contractor to decide the completion date for the whole of the works. Alternatively, if no programme is identified in part two of the contract data, then part one provides for the contractor to submit a first programme for acceptance within a specified period of the contract date. Other time related particulars are also provided in the contract data part one such as the starting date, access dates and the intervals at which the contractor must submit revised programmes.

The detailed time provisions of the NEC3 are contained within core cl.3 and provide for the contractor to submit and revise its programme under cll.31 and 32 so as to be able to deliver the project in the required time period, as well as concentrate its efforts and resources on critical activities of work. These provisions also provide for the project manager to accept the programme assessing whether the contractor hasfully complied with its obligations and whether it can practicably complete the work within the stated period. During the construction phase of a project, the project manager can use the programme to monitor progress and must use it to assess the time effects of compensation events, including any changes to the completion date, or a key date.

NEC3 clearly places a very high value on the programme since at cl.50.3 it allows 25 per cent of the price of work done to date to be retained until the contractor submits its first programme showing all the information required by the contract under cl.31.2. It should be noted that this provision only applies to the first programme and employers may seek to use “Z” clauses to maintain a similar regime for subsequent programmes.

Acceptance of the programme or not!

Under cl.31.3 of the contract, the project manager is required to accept the programme, or notify the contractor of his reasons for not accepting it. This clause provides four specific reasons for not accepting the programme, these being:

• The contractor’s plans which it shows are not practicable.
• It does not show the information which the contract requires.
• It does not represent the contractor’s plans realistically.
• It does not comply with the works information.

Accordingly, one might think there is an adequate contract mechanism in place to regulate the project manager’s decision to accept the programme, or otherwise, and that it is not able to reject the programme for any strategic, or capricious reason.

However, the practical reality is that the first and third bullet points are highly subjective and effectively allow the project manager to reject the contractor’s programme for a number of reasons under the guise that the contractor’s plans are not practicable, or not represented realistically. By way of example the project manager may claim that some of the logic links affecting a non-critical sequence of work, or the durations allowed for in some non-critical activities are not practicable.

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