Contract negotiation almost always involves compromise to achieve a document that is acceptable to all parties. Projects may succeed or fail as a direct result of the terms and conditions in the contract and the quality of the programme is no different.
Successfully negotiating a favourable programme can help you hold others to account and will make Extension of Time claims simple. It can also act as a shield as much as a sword. A small amount of front-end work will pay dividends long term.
Where can I find Programme Information?
In JCT, and most other Contracts, the place to head for Programme Information is the Contract Particulars where you will find the:
- Notice to Commence
- Date for Completion of Works
- Any Sectional Completions
Often this part will also refer to an actual Programme included in the Numbered Documents as well. It is however, important to remember that almost anything included in the Contract Particulars will be higher ranking than in the Programme if there is a discrepancy (Order of Precedence working again!).
How do I negotiate a Programme?
Negotiating a Programme with your client is not simple. They have a finish date which you need to meet, and this is almost always a date they’re not willing to move on.
So how can I help myself?
The most important thing is to try and give the Programme, like the contract, balance.
Too often, programmes show only your deadlines – but if both parties have actions, shouldn’t they both be shown? If the client has deadlines to provide you with Access or possession for example, shouldn’t that be shown?
Let me give you a working example.
I’m a Cladding Subcontractor working on a programme which includes specific requirements for us to handover a weathertight façade on a floor by floor basis every 2 weeks.
This arrangement makes perfect sense for the project so the Fit Out Works but, for us to achieve this, we NEED two things from the Main Contractor:
- The Concrete above must progress at the same rate – a floor completing every 2 weeks
- The Concrete must always be 2 levels ahead of the Floor we’re working on
Even though we’ve discussed these requirements and the Main Contractor understands and accepts them, the programme doesn’t show them. It simply states that the Main Contractor will hand over the first floor on a certain date and following that, we have milestone dates every 2 weeks.
This could be a real problem. If the Concrete starts on the correct date but is then slow or doesn’t progress on time, it it would be impossible for us to meet our deadlines.
Given that our Works are reliant on preceding trades, these requirements must be inserted into the Programme. We negotiated the insertion of the following into the programme:
- Floor by Floor Handover/Milestone dates for the Concrete
- A note confirming the Concrete must always be two levels ahead of us
The project was a success.
The Concrete Contractor was late, and we were able to record in a very precise manner exactly the Handover Dates and their impact on the programme. This allowed us to simply demonstrate and apply for an Extension of Time and the monies associated.
If preceding activities affect you, include them in the Programme
It is vital that you understand what you need from your client in order to complete any of your activities on site. This could be as simple as Access to the Works or Possession of the Site or complex like the example above.
Regardless, if preceding activities affect you, get them included on the programme as it will allow you to make a success of the project by:
- Holding others to account for their responsibilities.
- Identifying events which resulted in an Extension of Time.