ECC Clause 32.1 – Revising the Programme

This clause requires that all subsequent programmes include actual progress achieved on each operation and effect upon remaining work, the effects of implemented compensation events, how Contractor plans to deal with delays and correct notified defects and any other changes that the Contractor proposes to make. 

Put much more simply, the Contractor should update their programme to reflect the true reality of how they now perceive that they intend to carry out all remaining works. Any factor that has changed the logic or duration of activities has to be reflected. A very simple test when updating a programme is to run a filter of the following week’s work that it shows are planned to be carried out. Are those the activities that are really intended to be done? If not, then which ever way you look at it that can not be the correct contract programme issued for acceptance. The programme should demonstrate the reality of what you know at any given point in time. Sure – it may be out of date as something has changed five minutes after you issued it, but you have to draw a line somewhere. 

Whatever stage of the compensation event cycle an event is at, one needs to consider how this is to be demonstrated on any programme issued for acceptance. Clause 32.1 includes one bullet point that only refers specifically to showing on the revised programme the effects of ‘implemented’ compensation events. There is no specific reference to what should be done with compensation events that have not been implemented – i.e. those that have been notified, for which a quotation has been requested or for which a quotation is awaiting the acceptance of the Project Manager. If a Project Manager notifies a compensation event or agrees with the contractor’s notification, he requests a quotation, which should include any change to the prices and any delay to the Completion Date(see clause 62.2). He could request this quotation under clause 61.1 which states that the “Contractor puts the instruction into effect”. He could instead request a quotation under 62.1 (alternative quotations) where there could be more than one solution to the problem but with a likely different balance between cost and delay. The last option for the Project Manager would be a request for the quotation under 61.2 (proposed instructions) in which case the Contractor will not start to execute the works as the Project Manager will decide upon receipt of the quotation whether or not he wants to proceed with this particular proposed instruction. 

However, a quotation request under 61.1(along with an instruction where there is a change to the works in the first place under clause 14.3) is actually the trigger for the Contractor to proceed with the works, i.e. get on with it, safe in the knowledge that the contract will ensure suitable recovery to the Contractor for that event. The Contractor does not need to (and should not) wait for the quotation to be accepted before doing anything. If the compensation event needs materials that, say, have a six week lead in, it would be detrimental to the project if Contractor and Project Manager waited for the quotation to be agreed before ordering the pipework. Contractors might question why they would proceed with something that they do not know ultimately how much they will get paid for.? The idea is that the contract ensures that the Contractor is due appropriate compensation for the event and so should not lose out financially for an event that they had not and could not have allowed for in the first place. It is quite important to understand these processes as to what should or should not be shown on a programme at any point in time.  

Some practitioners within the construction industry have previously stated that the contract requires you to show implemented compensation events on the programme and therefore you do not show non-implemented compensation events. Whilst on the surface of it one might understand why they have made that quick interpretation by looking at the one single bullet within clause 32.1. However, as with any contract it is important to take into account other contract clauses and the contract as a whole when interpreting its meaning and contractual obligations. Very quickly this interpretation of only showing implemented compensation events is exposed as being fundamentally wrong and not what the contract intends – and would in fact be a reason not to accept a programme if it did not include events that were already affecting other activities on the programme.