if so, can the architect demand an update?
Provision of a master programme by the contractor is covered by clause 2.9.1.2 of SBC, 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. Suffice to say that it has no particular effect on the contract or contractor’s responsibil- ity for the programme.
SBC is the only one of the JCT traditional contracts that actually refers to the contractor’s programme. Clause 2.9.1.2 should be carefully studied. It states that the contractor will provide the archi- tect without charge with two copies of the master programme for the Works. The contractor’s obligation to revise the programme only occurs 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 the contractor falls behind due to its own fault. Looked at stringently, 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 2.28.6.1, 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
3 Contractor’s
date. In that case, the programme should be amended to reflect completion on that later date.
The practice of contractors constantly submitting revised pro- grammes, 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 that, if it is not achieved, the architect will probably, if sufficiently threatened, extend the completion date to match the date of practi- cal 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 that accurately reflects the intended progress and com- pletion is essential.
All the foregoing is by way of putting the question into con- text. Clause 2.9.1.2 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 for the architect. Second, the contractor can opt not to work to its own programme or even 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. There is nothing in the contract that obliges the contractor to work to its programme. Most contractors do, 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 pos- sible 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.37
Therefore, as the standard contract currently stands, the con- tractor 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.
23 Under SBC, the architect has approved the
contractor’s programme, which shows completion 2 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 com- pletion. All the programme does is to inform the employer and architect that the contractor intends to complete before the com- pletion date. The contractor is entitled to do this because clause 2.4 states that it must complete the Works ‘on or before’ the com- pletion date.
By asking whether the architect must ‘work towards this new date’, the questioner can be referring only to three important situa- tions: 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 impor- tant one 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 prac- tical completion, which ought to be the same as, but which is not
37 Yorkshire Water Authority v Sir Alfred McAlpine and Son (Northern) Ltd
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 comple- tion 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 obliga- tion to assist the contractor to do so.38 This principle is now
enshrined in the contract at clause 2.12.2. This clause stipulates that, in providing further information, the architect must have regard to the progress of the Works. This means that if the con- tractor is progressing so as to complete by the completion date, the information must be provided at such times as will enable the con- tractor to finish the Works on time; but that if the contractor is making slow progress, the architect is entitled to slow the delivery of information to suit. However, the clause proceeds to state that, if the contractor seems likely to finish before the completion date, the architect need only provide information to enable it to com- plete by the completion date.
The second and third situations deal with extension of time and assume that everyone knows the completion date. The only way in which the architect’s responsibilities under clause 2.28 can be affected is if the contractor’s programme, showing a completion 2 months earlier than the contract date, somehow takes precedence over the completion date in the contract. If that is the case, it will clearly affect the provision of information also.
The contract date for completion, like the other terms of the contract, can be changed only by agreement between the parties – the employer and the contractor. Approval of the programme by the architect is of little or no consequence. The programme is not a contract document and the parties are not bound by it – not even the contractor, strange as that may seem. Most architects will not approve the contractor’s programme, but even if the programme is approved, it merely signifies that the architect is happy with it. In effect the architect is saying: ‘I am happy for you to work in accor- dance with the programme if that is what you wish to do.’ Approval does not transfer the responsibility for the thing
approved from the contractor to the architect39unless the contract
makes specific provision for that to happen.
The position might be different if the contractor submitted its programme showing completion two months earlier than the con- tractual date and it was discussed and agreed by both parties and the new date confirmed. In that instance, the architect may be obliged to work in every way as though the programme date for completion was the contract date for completion. The confirmed agreement of both parties amounts to a variation of the contract terms. In practice, this could take place at a site meeting; possibly the one usually and incorrectly called the ‘pre-contract meeting’ (‘pre-start meeting’ is a better name). Where the parties reach an agreement at such a meeting, with plenty of witnesses and where the agreement is recorded in the minutes which are subsequently agreed by all parties, it is difficult to escape the conclusion that a valid variation of the contract terms has taken place.
If the circumstances are such that a valid variation of the terms has not occurred and it is only the architect who has received and commented on the programme, the contractor’s obligation is still to complete by the contract date for completion. As noted earlier, it is difficult to see what the contractor gains by this strategy. If the contractor notifies delay, the architect appears to be able to take the contractor’s proposed completion date into account when deciding whether completion of the Works is likely to be delayed beyond the completion date. That would not work to the contractor’s advantage. Suppose the contract completion date was 30 September and the contractor’s proposed date for comple- tion was 30 July. If the contractor argues that it is being delayed in completion by 2 weeks, there seems to be no reason why the architect should not assume that the contractor will, therefore, complete by the middle of August. That would not indicate a delay to the contract completion date and no extension of time would be due. On this basis, the contractor would have to regis- ter a delay of more than 2 months before an extension of time would be due.
24 Can the architect insist that the contractor submit the programme in electronic format? The rights and obligations of the employer and the contractor are governed by the terms of the contract. None of the standards forms in general use require the contractor to submit a programme in electronic format. Indeed, only one of the JCT series of contracts requires the contractor to submit a programme at all and that is SBC, which requires the contractor to submit a master programme to the architect.
There is no doubt that a programme in electronic format can greatly assist the architect in deciding upon the correct extensions of time, in considering applications for loss and/or expense and in generally monitoring the progress of the Works. Of course, there are a number of different computer programs that will support a building programme and it is essential that any programme submit- ted by a contractor in electronic format is compatible with the software on the architect’s computer. The alternative is to ask the contractor to supply a list of the activities on the programme together with the relevant predecessors and successors so that they can be entered into the architect’s computer. This is a rather more tedious operation than simply inserting a disk, but it is far better than having no such programme at all.
All that is necessary to require the contractor to submit an elec- tronic formatted programme is for a suitable clause to be inserted in the preliminaries section of the bill of quantities or specification. This will not conflict with the printed contract in most cases because, as noted earlier, only SBC requires a programme of any kind. It will not conflict with SBC, because the contract does not specify the type of programme, therefore the additional clause is not overriding or modifying the printed form but merely amplifying it by adding further requirements. In this clause, the architect can require the programme in a form to suit his or her own computer software. A contractor who fails to supply the programme in the form specified will be in breach of contract and the architect is enti- tled to take account of the breach in calculating extensions of time.40
The use of computers in dealing with extensions of time has been approved by the courts. What is the position if there is no requirement for the contractor to supply an electronic version of
the programme? Can the architect compel the contractor to pro- vide it in any event? The answer to that appears to be that, in the absence of a specific clause in the contract, the architect cannot compel the contractor to provide a programme in any particular form. However, when a contractor notifies delay in the expectation of receiving an extension of time, there is nothing to prevent the architect asking for a programme in a specific form as part of the architect’s general power to request further information from the contractor. The contractor may refuse to provide it, arguing that there is nothing in the contract that requires it. The architect’s reply would be to simply point out to the contractor that, in the absence of such a programme as requested, the architect will find it very dif- ficult to determine a fair and reasonable extension of time and that the contractor will be the author of its own misfortune if it does not receive the extension of time it expects. That usually has the desired effect. If not, the architect may give a somewhat shorter extension of time than expected and, if this is done as part of the review of extension under SBC, IC or ICD during the 12-week period after practical completion, the contractor will have to live with it, because the architect has no power under these contracts to revisit the situation again once the 12 weeks has expired. Indeed, under MW and MWD, there is no review provision and, therefore, no opportunity for the architect to reconsider after the date for com- pletion in the contract, or as already extended, has passed.
25 When a contractor says that it owns the float, what does that mean?
Float is a commonly used term that is much misunderstood. It is the difference between the period required to perform a task and the period available in which to do it. Critical activities have no float – that is why they are critical: there is no difference between the period needed to carry out the activity and the period allocated for it. In other words, there is no scope for any delay at all before the completion date of the project is affected. To say that an activ- ity has a day of float means that the activity could be extended by another day without affecting the completion date of the project. Put another way, the activity could commence a day late without there being any effect on the overall programme.
Contractors sometimes argue that an extension of time is due even if a non-critical activity is delayed. They argue that they own
the float and, therefore, that the employer cannot ‘take advan- tage’ of it. This is a very strange contention. No one owns float. It is like trying to argue that a person is taking advantage of the air around them. Float is simply the space before or after individual activities when they are put together in the form of a programme. Whether it actually exists at all depends on whether the pro- gramme is accurate.
It is sometimes argued that if a contractor programmes to com- plete a 12-month contract in 10 months, the 2 months are the contractor’s float and, therefore, if the project is delayed by even a week, an extension of time will be due, even if the contractor fin- ishes several weeks before the completion date. That is obviously wrong. If the week’s delay causes float to be used, because of some employer default, the contractor has no entitlement to an extension of time because the delay does not affect the completion date; that is the crucial point.
InAscon Construction Ltd v Alfred McAlpine Construction Isle of Man Ltd,41the judge put the position like this when dealing with
a contractor’s claim against a sub-contractor:
… I must deal with the point made by McAlpine as to the effect of its main contract ‘float’ … It does not seem to be in dispute that McAlpine’s programme contained a ‘float’ of five weeks in the sense, as I understand it, that had work started on time and had all sub-programmes for sub-contract works and for ele- ments to be carried out by McAlpine’s own labour been fulfilled without slippage the main contract would have been completed five weeks early. McAlpine’s argument seems to be that it is entitled to the ‘benefit’ or ‘value’ of this float and can