Frequently Asked Questions

Question
We are using an NEC3 ECC Option A contract (priced contract with activity schedule). If the programme for remaining work is altered by a compensation event, does the contractor have to bring the accepted programme, which is current at the time the compensation event arises, up to date to reflect reality – in terms of progress at the time the project manager instructed the submission of the quotation – before demonstrating the impact of the effect of the compensation event? Our contract requires revised programmes to be submitted every 4 weeks. We note that under clause 62.2 if the programme for remaining work is altered by a compensation event, the contractor includes the alterations to the accepted programme in its quotation.

The accepted programme should already be reasonably up to date. Assuming you have a requirement for 4-weekly submissions then it should be no more than 4 weeks old. If the contractor fails to submit programmes for acceptance when it should, or if the project manager has rejected its latest programme for a reason set out in the contract, then the project manager is required to make his or her own assessment of the compensation event (see clause 64.1, third and fourth bullets). In that case the project manager can use his or her own assessment of what the programme should be (clause 64.2).

It is different if the accepted programme is out of date because the project manager has not done what he or she should do, for example if the project manager has not replied to a programme submitted for acceptance (clause 31.3), or if the project manager has rejected a programme submitted for acceptance for a reason not stated in the contract. In either of those cases you use the out-of-date accepted programme, which is not satisfactory and certainly the project manager must strive to avoid this.

The project manager can instruct the contractor to provide a revised programme as soon as he or she is aware that the previous one is out of date (see clause 32.2, first bullet). On the other hand, the contractor may think that unfair if it does not take into account some time saving that has occurred in the meantime. The contractor can alleviate that by producing a new programme as soon as it is aware that the previous one is out of date (see clause 32.2, second bullet). It works both ways.

The 4 weeks is supposed to be a maximum not the norm. The contract encourages people to make sure they have an up-to-date and realistic programme, which is simply good management.

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