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Fourteen things you need to know about contract programmes

Programmes present many pitfalls for the unwary flooring contractor.
So, what should the ‘streetwise’ subbie bear in mind? Barry Ashmore explains.

FIRST and foremost, the contractor’s programme might be part of the contract documents, but under many of the standard forms of contract eg, JCT, it doesn’t define the contractor’s obligations in respect of time. And the flip side to that coin is that you should be very wary about entering into a sub-contract where your obligations as to time are defined by reference to a programme rather than specific dates or period.

You also need to know the situation is quite different under the NEC forms of contract, and this is one of the key differences between the JCT and NEC. If you’re entering into an NEC form then I strongly suggest you definitely give me a call because knowing exactly how to deal with the programme is crucial and can prove extremely onerous if you don’t get it right.

Completion dates and the programme
The completion date, and any stage or sectional completion dates, are enforceable and failure of the contractor to meet these dates may lead to a claim by the employer for liquidated damages, which along with other costs could be winging your way if you’re late. And as your works are inevitably towards the end of the job you’re an easy scapegoat to blame.

Contracts will generally require that the contractor progresses the works regularly and diligently and failure of the contractor to meet the dates on the master programme might be evidence they’re not doing so.

All of this and more can, and usually is stepped down into your sub-contract with the contractor, so here are a few suggestions about dealing with programmes:
1 Agree a reasonably detailed programme for your works at the outset, and have it incorporated by specific reference in the sub-contract order or agreement
2 If it’s impossible to get it in the formal agreement, then at the very least try to agree a sub-contract programme right at the outset and use it as your ‘baseline’
3 Watch out for and object to ‘suicide’ terms such as: ‘works to proceed in accordance with the contractor’s requirements’ and ‘to suit the progress of the main contractor’
4 Try to obtain a copy of the contractor’s programme, for subsequent monitoring
5 Keep all programmes in a safe place and print off electronic copies to keep on file and issue your site team with copies
6 Ensure all programme negotiations and agreements are confirmed in writing at the time
7 Ensure all programmes, both issued and received, are referenced, date stamped and covered by a letter which clarifies their status
8 Maintain a programme register recording dates and identity of all programmes both issued and received
9 Again, keep revisions in a safe place and issue the site with copies
10 Promptly examine the implications of the contractor’s revised programmes and report to him accordingly and/or give him appropriate notices of delay as required by the contract
11 Remember that while actual progress is usually monitored against the current revision, your ‘contractual performance’ (ie extension of time, exposure to damages etc) is measured against the actual dates for completion in the contract.
12 Keep an eye on the contractor’s progress and monitor delays to other trades that have significant influence on your works. Where necessary you must give appropriate notices of delay as required by the contract.
13 Bear in mind that a definite agreed programme imposes equally definite obligations on you as regards progress and performance, failure to achieve which might lead to financial penalties – you can’t have your cake and eat it!
14 Don’t be put off doing what needs to be done when it needs to be done, and don’t be conned or persuaded by the contractor not to do what needs to be done because it is ‘not in the spirit of the contract’ or because ‘you’re being contractual’

Don’t allow your activities to drift into ‘contractual limbo’, because if you fail to take the necessary action, because you’re too busy getting the job done, or any other reason, you’ll find yourself in a position that is very difficult to recover from.

And it could cost you substantial sums of money or even (in extreme cases that I have seen more than once), your entire company.

What’s that you say? You do all these things already, as a matter of course?
Congratulations – you’re unique.
As always if we can help with any of this don’t hesitate to get in touch.
01773 712116
Barry Ashmore is managing director and
co-founder of StreetwiseSubbie.com

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