We are the project manager on an NEC3 Engineering and Construction Contract (ECC) Option A (priced contract with activity schedule) for a highways project. The contractor has submitted a revised programme showing that the completion date has moved some 8 days. This is due to the effect of two compensation events which have not yet been implemented − one of which is not accepted by us. We think the contractor is expecting us to accept the revised programme and subsequently try to implement the compensation events. Should we not accept the revised programme and push the contractor to submit another programme? Or should we accept the revised programme since it is realistic?
It makes no difference whether the cause of the delay is a compensation event or not. It is important here to understand that the contractor has to show on its programme both planned completion and the completion date (see the first two bullets of clause 32.1). Planned completion comes at the end of the contractor’s critical path and therefore moves if critical delays occur. The completion date can only be changed in accordance with the contract (see clause 11.2(3)) and can only be changed if the contract allows.
As project manager you may not accept a programme for any reason of your choosing. But if the reason is not in the contract, non- acceptance will be a compensation event (see clause 60.1(9)). The list of reasons for not accepting a programme are set out in clause 31.3 and, from what you have said, we do not think any of them apply. Note the fact that the programme shows planned completion before the completion date is not one of the listed reasons.
If you agree that the programme shows the reality of the situation, you should accept it. If you do not and insist that the contractor submits another programme, that programme will, almost inevitably, not show the reality of the situation.
Such acceptance will not change the completion date or the contractor’s obligation to achieve completion by the completion date (see clause 14.1).