Welcome to the second in our series of educational articles, providing you with practical insight into the various mechanisms in standard form contracts. In this article, we provide you with a breakdown of the key information that is required in a programme under NEC4.
Specifically, we look at Clause 31.2 of HEC4 which sets out what information is required of each programme that is “submitted for acceptance” by the Contractor. It, therefore, does not apply to any programme which the Contractor chooses to identify in Part Two of the Contract Data. We also provide a summary of what is new to clause 31.2 in NEC4 and what the consequences are where there is a failure to provide this information.
A guide to what information is required by Clause 31.2 of HEC4
|The starting date, access dates, Key Dates and Completion Date||These dates will be identified in the Contract Data.|
|Planned Completion||This can be the same as the Completion Date, though it can also be earlier (giving the Contractor float) or later (which might happen if works are delayed).|
|The order and timing of the operations which the Contractor plans to do in order to Provide the Works||It is up to the Contractor to decide how they break up their work and how much detail they provide, and it is then up to the Project Manager whether to accept the programme in that form (see below on what entitles the Project Manager not to accept a programme).|
The Scope may include constraints on how the Contractor Provides the Works (clause 11.2(16)).
|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||The Scope may or may not set out the order and timing of works that are to be carried out by the Client or by Others (e.g. other contractors). The order and timing of that work may be changed by subsequent agreement. |
The programme is required to include information from the most up-to-date agreement (or, absent any such agreement, from the Scope).
|The dates when the Contractor plans to meet each Condition stated for the Key Dates and to complete other work needed to allow the Client and Others to do their work||Key Dates and the associated Conditions to be met by those dates are set out in Part One of the Contract Data. The dates given under this requirement can be earlier than the Key Dates (giving the Contractor float) or later (which might happen if works are delayed).|
• time risk allowances,
• health and safety requirements and
• the procedures set out in the contract.
|Float is time in the programme that can be used for delays to certain activities without affecting the planned Completion.|
Time risk allowances are built into the programme to ensure that the time allowed for an activity is achievable, and they need to be included for matters which have a significant chance of occurring.
Health and safety requirements include requirements under the CDM Regulations.
|The dates when, in order to Provide the Works in accordance with the programme, the Contractor will need:|
• access to a part of the Site if later than its access date,
• Plant and Materials and other things to be provided by the Client and
• information from Others.
|For the most part, these dates will be relevant for assessing whether a compensation event has occurred: for example, failure by the Client to provide access by the later of the date shown in the Accepted Programme and the access date in Part 1 of the Contract Data (clause 60.1(2)), and failure by the Client to provide acceptances, Plant and Materials by the dates shown in the Accepted Programme (clause 60.1(3)) are Compensation Events.|
|For each operation, a statement of how the Contractor plans to do the work identifying the principal Equipment and other resources which will be used||Sometimes referred to as a “programme narrative”, this statement allows a Project Manager to better understand the contents of the programme, particularly what has changed and why. |
“Other resources” would include things like labour, design, and management resources.
Clause 31.2 does not itself set out the level of detail required, though the Scope might do.
|Other information which the Scope requires the Contractor to show on a programme submitted for acceptance||This allows the parties to agree to bespoke requirements for the programme by including those requirements in the Scope.|
New to clause 31.2 in NEC4 is the provision that “A programme issued for acceptance is in the form stated in the Scope.” Previously, in NEC3, the Contractor was left to decide on the form in which the programme information was provided. Now though, the parties may agree the form and prescribe that form within the Scope.
A revised programme must comply with clause 31.2 as set out above, and it must also contain the following information (clause 32.1):
- the actual progress achieved on each operation and its effect upon the timing of the remaining work,
- how the Contractor plans to deal with any delays and to correct notified Defects, and
- any other changes which the Contractor proposes to make to the Accepted Programme.
The consequences of failing to provide information
Failure to include the information required by the contract can have the following consequences:
- It gives the Project Manager grounds not to accept the programme (clause 31.3).
- If there is no programme identified in the Contract Data, the Client may retain one quarter of the Price for Work Done to Date until the Contractor has submitted its first programme that shows the information which the contract requires (clause 50.5).
Clause 31.3 also entitles the Project Manager not to accept a programme if the Contractor’s plans in that programme are not practicable, or if the programme does represent the Contractor’s plans realistically.
Note also that when a compensation event occurs, the Contractor must include in its quotation any alterations to the Accepted Programme that arise as a result of that compensation event (clause 62.2).
Standard contracts explained
Look out for more in our series in the coming weeks and months where we will be providing practical insight into the various mechanisms in standard form contracts, to help businesses navigate the complexities involved in administering those contracts.
If you need any further information or specific advice, please contact us.
07825 171 925
As with all our blogs, these are intended to share general information. If you have any specific contractual issues, you should take specific legal advice.