NEC4 ECC time provisions – an introduction for new NEC users

Key Points

• NEC4 ECC regulates time in several ways.
• There are completion dates and possible sectional completion dates and key dates. Failure to meet them can result in the client imposing damages or recovering costs.
• A unique feature is the need for a continually updated accepted programme, which is crucial in calculating the impact on completion and delays caused by compensation events.

It is often said that time is money, and nowhere is this more true than in construction contracts. The NEC4 Engineering and Construction Contract (ECC) regulates time in several ways.

Completion and key dates

First, ECC identifies a completion date and makes it a specific contractual obligation for the contractor to provide the works so they are completed no later than this date. There may also be sectional completion dates if the works are divided into sections.

Failure to meet these deadlines exposes the contractor to a potential damages claim and, as in other forms of contract, the ECC provides for such damages to be agreed and identified in the contract by incorporating option X7 on delay damages.

Similarly, the contract also allows the client to identify key dates, by when certain conditions must be satisfied. Failure to do this exposes the contractor to the client recovering additional costs. It may be that late completion or failure is not the contractor’s fault. If this is due to a compensation event (see Campbell, 2023), the completion date or key date may then be changed to reflect this, with the effect that these sums will be reduced or no longer arise.

Accepted programme

Unique to NEC is its emphasis on the accepted programme. This is produced by the contractor and must contain a number of items as specified in clause 31. In all but the simplest build, it will be a very detailed document. As the name suggests, the draft programme must be accepted by the project manager and there are strict and fairly limited timeframes for these activities.

The project manager is entitled not to accept a submitted programme if it fails to meet certain requirements (see clause 31), after which the contractor will need to rectify these issues and resubmit. The accepted programme is then followed and complied with, referred to in various other contractual provisions, and is absolutely crucial in calculating the impact on completion and key dates of delays caused by compensation events.

For the above reasons, it is essential there is an accepted programme in place at all times, and both the contractor and project manager must be careful to discharge their responsibilities to ensure this is the case. Honing the accepted programme is not a one-off activity either: it may (and should) be revised along the way, reflecting its status as a key tool in NEC project management and implementation.

Reference

Campbell L (2023) Compensation events – an introduction for new NEC users.  This article was published in the NEC Newsletter Issue 130 (March 2024):10