The programme that was never accepted

There's a document on every NEC job that quietly decides who holds the whip hand over money and time. Most people would guess the contract itself. In my experience it's the programme, or more precisely the word sitting next to it, because a programme that has been accepted and a programme that has merely been submitted are two entirely different instruments and the difference between them can be worth more than the profit on the job.

The job I'm going to describe loosely was a civil engineering package on a large scheme in the Midlands, run under NEC3, the sort of contract where the programme runs to hundreds of activities and gets revised monthly the way the contract asks. The subcontractor did what the contract asks of them. A first programme went in, then revisions as the job moved and changed, month after month for the life of the works. And across that entire life the main contractor never accepted a single one of them. Some came back with comments, some came back with nothing at all and each time a new revision went in before the last had been dealt with, so there was always a plausible reason the clock could be said to have restarted. Nobody treated it as sinister. It read as admin noise, the sort of thing that would surely get tidied up at some point, right up until it mattered.

The mechanism underneath is quiet and it's brutal. When a compensation event is assessed under NEC, its effect on time is measured against the accepted programme. Where no programme has been accepted, the contract hands the job of deciding what the programme would have shown to the project manager, who assesses using their own version of events. Sit with that for a moment. The party assessing what your delay is worth also gets to decide the shape of the ruler it's measured with. On a job where relations have soured, you can imagine how those assessments tend to land, and every compensation event on that job, and there were many, was assessed on exactly that footing.

So the final account became one large argument rather than a series of small settled ones. The two sides ended up well over a million pounds apart and it settled, eventually, at a number not far short of the ask, which sounds like a win. I'd like to tell you it was the records carrying the day. Honestly, it was closer to luck. Had it gone the distance, the record keeping would probably have been found wanting and the same set of facts could have produced a very different number. Winning a settlement you couldn't have proven is not a strategy, it's a coin that happened to land well.

The industry knows this stalemate exists, because NEC4 contains a repair for it that NEC3 never had. Under NEC4 the project manager has two weeks to respond to a programme and the grounds for rejecting one are limited and listed. If they don't respond, the contractor can notify them of the failure and if another week passes in silence the programme is treated as accepted. Deemed acceptance, in the contract's language. That clause was written because of jobs like the one above. But it does not operate itself. Nobody deems anything on your behalf. The clocks only run if somebody is watching the dates, sending the notification and keeping the paper.

Which gives you the Monday discipline, and like most of the disciplines worth having it's not clever, just consistent. A running record of every programme submitted: the date it went in, the date a reply fell due, what actually came back and what you did about the gap. On NEC4, chase the deemed-acceptance route in writing the moment a reply period lapses. On NEC3, where that route doesn't exist and plenty of live jobs still sit on NEC3, put the non-acceptance on the record early and keep putting it there, because a project manager assessing on a programme of their own devising still owes a duty to act impartially in that role, the courts have said so in terms, and a written trail of unanswered submissions is precisely what makes that duty bite.

So the question for Monday morning is a simple one: on every live job you have, is the current programme accepted or merely submitted? If nobody in the office can answer that from a record rather than a memory, then on at least one of those jobs somebody else is quietly holding the ruler.

Mechanics: NEC3 and NEC4 ECC clauses 31.3 (programme acceptance; NEC4 adds deemed acceptance) and 64.2 (assessment where no programme is accepted). On the assessor's duty of impartiality: Scheldebouw BV v St James Homes (Grosvenor Dock) Ltd [2006] EWHC 89 (TCC).

Details changed to protect the parties; the pattern is real.