39 If an architect approves a contractor’s programme, can the contractor subsequently change the programme without the architect’s knowledge, and, if so, can the architect demand an update?
Provision of a master programme by the contractor is covered by SBC clause 18.104.22.168, which requires the contractor to provide two copies to the architect. Approval of the programme by the architect is dealt with in the next question, but suffice to say that it has no particular effect on the contract or contractor’s responsibility for the programme.
SBC is the only one of the JCT traditional contracts that actually refers to the contractor’s programme. Clause 22.214.171.124 should be carefully studied. It states that the contractor will provide the architect without charge with a copy of the master programme for the Works. If the contract particulars require it, the programme must include a critical path and any other details specified in the contract documents. For example, the contract documents may require all logic links and resources to be shown. The contractor’s obligation to revise the programme occurs under clause 2.9.2 only if an extension of time is given either by the architect under clause 2.28 in the normal way or by a pre-agreed adjustment as a result of the acceptance of a schedule 2 quotation.
The contractor has no obligation to revise the programme if it falls behind due to its own fault. Looked at logically, that makes perfect sense. If it is the contractor’s fault that a delay has occurred, it is clearly the contractor’s responsibility to recover the lost time under clause 126.96.36.199, which requires the use of best endeavours constantly to prevent delay. It can be convincingly argued that the programme requires no adjustment because the contractor ought to be doing everything a prudent contractor would do to get back on programme. The only time the programme requires adjustment is if the completion date is adjusted to a later date. In that case, the programme should be amended to reflect completion on that later date.
The practice of contractors constantly submitting revised programmes, not because the completion date has been revised but because the contractor has fallen behind, is to be deplored. The architect should not be interested in when the contractor says it believes it will finish if that date is not the completion date in the contract. The problem is that many contractors take the view that the contractual completion date is simply a date to aim for, and if it is not achieved the architect will probably, if sufficiently threatened, extend the completion date to match the date of practical completion. The constant submission of programmes that bear no relation to the contract or extended date for completion does nothing to assist the architect in considering extensions of time or disruptions to the regular progress of the work. For that purpose, a programme submitted at the start of the project that accurately reflects the intended progress and completion is essential.
All the foregoing is by way of putting the question into context. Clause 188.8.131.52 is the only clause that refers to the contractor’s programme, and it will readily be seen that nothing in the clause states that the contractor must comply with its own programme. First, it should be noted that the reference is to a master programme. That allows the contractor to produce numerous detailed programmes which there is no obligation to provide to the architect. Second, the contractor can opt not to work to its own programme or even opt to change the programme without informing the architect. Only if the change results from an extension of time must the revised programme be submitted. Therefore, it is possible for a contractor to submit a programme indicating that work will progress from point A through B, C, D, etc. to Z and, on site, commence at point Z and work in reverse. Most contractors do work to their own programmes, of course, but the question was no doubt prompted by the fact that from time to time a contractor will find it useful to significantly vary its work from the submitted programme.
The programme is not a contract document, although it might be termed a contractual document because it is generated in accordance with a clause in the contract. However, neither the contractor nor the employer is bound to follow it. It would be possible to make the programme a contract document, but that would not necessarily be an advantage, because every slight deviation from the programme potentially would have a financial implication.1
Therefore, as the standard contract currently stands, the contractor can change the programme without the architect’s knowledge or permission and the architect has no power to require an update. Obviously, additional clauses can be introduced to deal with some of these difficulties, and programmes can be required in particular formats. However, considerable thought should be given before deciding to make it a contract obligation for the contractor to comply with its own programme. There could be substantial financial repercussions, as noted above.
40 Under SBC, the architect has approved the contractor’s programme, which shows completion two months before the contract completion date. Must the architect work towards this new date?
It is quite common for a contractor to show a date for completion on the programme that is before the date for completion in the contract. It is never very clear why a contractor should do this, because the programme cannot alter the contract date for completion. All the programme does is to inform the employer and architect that the contractor intends to complete before the completion date. The contractor is entitled to do this because clause 2.4 states that it must complete the Works ‘on or before’ the completion date.
By asking whether the architect must ‘work towards this new date’, the questioner can be referring only to three important situations: The most obvious is the provision of further information to the contractor; another is responding to a notice of delay under clause 2.28, where the architect, in deciding whether to give an extension of time, is to consider whether completion of the Works is likely to be delayed beyond the completion date; the final important situation is the architect’s obligation under the same clause 2.28 to notify the contractor about an extension of time decision no later than the completion date. Other matters relate to the date of practical completion, which ought to be the same as, but which is not necessarily connected to, the contract completion date. The contract date for completion is the date by which the contractor undertakes to complete the whole of the Works. The date of practical completion is the date by which virtually the whole of the Works are, as a matter of fact, complete.
To deal with the provision of information first, the courts have held that although the contractor is entitled to complete before the completion date in the contract, the employer has no obligation to assist the contractor to do so.2