Introduction

The programme is central to the administration of the NEC4 Engineering and Construction Contract (ECC). It is not merely a planning document. It provides the basis for managing progress, assessing the amount due and assessing the time effects of compensation events. In this article the author explains the requirements for submitting programmes for acceptance, the Project Manager’s response and the consequences which may follow from acceptance or non-acceptance.

This is also relevant to the assessment of delay under clause 63.5, which uses the Accepted Programme current at the dividing date as the reference point for assessing the time effect of a compensation event.

The Accepted Programme

The Accepted Programme performs several important functions under the contract. It provides a common basis for the parties to manage and monitor the works, assess progress and identify emerging risks. It also forms the baseline for assessing the effect of compensation events on the Completion Date. The Accepted Programme is not a static document and is defined in clause 11.2(1) as:

‘…the programme identified in the Contract Data or the latest  programme accepted by the Project Manager.’

The first Accepted Programme may be the programme submitted with the Contractor’s offer, provided it is identified in Contract Data part two. Including the tender programme in the contract is optional. If no programme is identified in the Contract Data, the first programme must be submitted for acceptance after the Contract Date. Each programme accepted by the Project Manager supersedes the previous Accepted Programme.

The commercial effect of no programme being identified in the Contract Data is set out in payment clause 50.5. In those circumstances, one quarter of the Price for Work Done to Date is retained in assessments of the amount due until the Contractor has submitted a first programme to the Project Manager for acceptance showing the information which the contract requires.

The trigger for ending the clause 50.5 retention is submission of a programme which shows the information listed in clause 31.2 and, for revised programmes, clause 32.1. To end the retention, clause 50.5 does not require the Project Manager to have accepted that first programme and the programme would remain subject to the Project Manager’s acceptance or non-acceptance under clause 31.3.

Submission of the first programme

If a programme is not identified in the Contract Data, clause 31.1 requires the Contractor to submit its first programme to the Project Manager for acceptance within the period stated in the Contract Data. The contract defines the Contract Date as the date when the contract came into existence. Simple as this sounds, the date of contract formation may not always be clear.

Submission of revised programmes

Clause 32.2 requires the Contractor to submit revised programmes to the Project Manager for acceptance. The default period for submission is at intervals no longer than the interval stated in the Contract Data. The Project Manager may also instruct the Contractor to submit a revised programme for which the Contractor is required to submit within the period for reply as stated in Contract Data.  Additionally the Contractor may chooses to submit a programme at any time until Completion of the whole of the works.

Project Manager's response to a programme submitted for acceptance

Clause 31.3 requires the Project Manager either to accept the programme or notify the Contractor of non-acceptance within two weeks after the date on which the programme was submitted.  Where the Project Manager does not accept a programme, clause 13.4 requires the Project Manager to state the reasons for non-acceptance.

Clause 31.3 limits the Project Manager to four reasons for not accepting a programme. Beyond these reasons, non-acceptance becomes a compensation event under clause 60.1(9).

The first reason is  that ‘the Contractor's plans shown in the programme are not practicable.’ This reason concerns whether the programme can realistically be implemented. Examples may include sequencing that is impossible to achieve or logic which is fundamentally unrealistic. A constraint stated in the Scope may also render the programme impracticable. The issue is not whether the Project Manager would prefer an alternative approach, but whether the Contractor's proposals are genuinely capable of being carried out.

The second reason is that ‘the programme does not show the information which the contract requires.’ Clause 31.2 provides a bullet point list of 15 items that must be included within each programme submitted for acceptance. The list includes, the starting date, access dates, planned Completion and the Completion Date.

For revised programmes, clause 32.1 also requires the Contractor to show actual progress achieved on each operation and its effect upon the timing of the remaining work, how the Contractor plans to deal with delays and correct notified Defects, and any other changes which the Contractor proposes to make to the Accepted Programme.  Where this information is absent, the Project Manager may not accept the programme.

The third reason is that the programme does not represent the Contractor's plans realistically. This reason differs from impracticability. A programme may be achievable in theory but not realistic in practice. For example, it may omit known delays, fail to reflect actual progress, or otherwise present an inaccurate picture of how the Contractor intends to complete the works. The purpose of this provision is to ensure that the Accepted Programme remains a genuine and realistic management tool.

The fourth reason is that the programme does not comply with the Scope.

The Contractor's programme submitted for acceptance must be consistent with any requirements stated in the Scope. If the programme proposes working methods, sequences or timing arrangements that conflict with the Scope, the Project Manager is entitled not to accept it.

Clause 13.8 reinforces the importance of communicating the reasons for non-acceptance. Where a programme is not accepted, the Project Manager should clearly identify the contractual reasons for non-acceptance.  If the Project Manager does not accept a communication from the Contractor for a reason not stated in the contract, the matter is treated as a compensation event under clause 60.1(9).

Failure by the Project Manager to reply to a programme in accordance with the period required by the contract

The NEC4 ECC recognises that delay in responding to a submitted programme may affect management of the contract. Clause 60.1(6) provides that a compensation event occurs if the Project Manager does not reply to a communication from the Contractor within the period required by the contract. In practice, a delayed response by the Project Manager is likely to have limited impact when assessed as a compensation event. However, given the importance of the Accepted Programme when assessing delays due to compensation events, the absence of a current Accepted Programme can make life very difficult.

Actions the Contractor can take if the Project Manager does not reply to a submitted programme within the period required by the contract

A proactive Contractor is likely to remind the Project Manager that a response to its submitted programme is outstanding before the end of the two week period for reply. The contract also allows the Project Manager and the Contractor to extend the period for reply by agreement under the general communications clause 13.5. However, this should not be encouraged on a regular basis. It merely defers the issue.

Where the Project Manager does not notify acceptance or non-acceptance within the time allowed, clause 31.3 allows the Contractor to notify the Project Manager of that failure. If the failure continues for a further one week after the Contractor’s notification, the programme is treated as accepted by the Project Manager. In theory, the Contractor’s notification should at least prompt the Project Manager to respond. However, deemed acceptance is unlikely to be entirely satisfactory for either party. Contractors should also be aware that some clients may amend or delete the clause 31.3 deemed-acceptance mechanism via a Z clause.

Risks to the Client arising from accepting a programme

Acceptance of a programme does not generally alter the allocation of risk between the parties. For example, the Contractor’s obligation to complete the works by the Completion Date under clause 30.1 does not change. Acceptance of a programme which shows planned Completion beyond the Completion Date is not an agreement to change the Completion Date.

Nevertheless, three compensation events are tied to the Accepted Programme. Clause 60.1(2) provides that a compensation event occurs if the Client does not allow access to the Site by the later of its access date and the date for access shown on the Accepted Programme. Clause 60.1(3) provides for a compensation event if the Client does not provide something which it is to provide by the date shown on the Accepted Programme. Under the first bullet point of clause 60.1(5), if the Client or Others do not work within the times shown on the Accepted Programme, the matter is treated as a compensation event.

Accordingly, the Project Manager should consider carefully whether to accept a programme which establishes obligations or interfaces for which the Client is responsible.

Conclusion

The submission and acceptance of programmes is therefore a practical contract management issue as well as a planning exercise. Contractors should submit programmes which contain the information required by the contract and reflect their plans realistically. Project Managers should respond within the contractual timescales and, where a programme is not accepted, give proper reasons by reference to the contract. Particular care is needed before accepting a programme which affects Client obligations, as the Accepted Programme may influence payment administration and the assessment of compensation event risk.

David Hunter

July 2026