Within a set time of the Letter of Acceptance the Contractor is to submit for approval his programme in the form required by the Engineer. He is also to provide a written method statement as and when required by the Engineer. If the Engineer considers that progress does not match the approved programme, he may require the Contractor to produce a revised programme showing how the works are to be completed on time.
Within a set time of the Letter of Acceptance, the Contractor is to submit a detailed cash flow estimate of payments due to the Contractor and will revise the estimate quarterly if the Engineer so requires.
The Engineer's consent to programmes, method statements or cash flow estimates will not relieve the Contractor of any of his contractual responsibilities. Sub-clauses 14.1, 14.2 and 14.4 are taken, with changes mainly of vocabulary, from the 3rd Edition. Sub-clause 14.3 is entirely new.
14.1 It is a feature of this contract that the Employer and the Engineer take a close interest in the intentions of the Contractor. Compare for example a turn-key contract where the Employer may have no representative and is not overly interested in how the Contractor achieves the desired result provided that on the due date the required product is supplied. Such an approach is not always appropriate in civil engineering where ongoing quality control is often necessary due, at least in part, to the high proportion of the works which are covered up by subsequent operations. This clause requires the Contractor to tell the Engineer in what order and, if so requested, by what methods the works are to be executed. From a practical point of view, this enables the Engineer to programme his detailed design and the Employer will need information to plan the giving of possession of the various parts of the site to the Contractor. The programme supplied pursuant to this clause will define the Employer's duty to give possession pursuant to clause 42.1 (Possession of site and access thereto). Failure to give possession in accordance with the programme could result in the Contractor being entitled to an extension of time and costs. In contrast, under
clause 6.4 (Delays and cost of delay of drawings), a further notice to the Engineer making a specific request for a particular drawing or instruction is almost certainly required before time and costs may be obtained. See the commentary under sub-clauses 6.3 and 6.4 as to whether a marked-up programme could amount to sufficient notice. The degree of detail to be provided is to be determined by the Engineer: this could be important. For the Employer a detailed programme will define closely his duties in relation to giving possession of the site and in relation to the provision of drawings by the Engineer. It will be more obvious when a breach of those duties has occurred. For the Contractor, it must be appreciated that he not is bound by his programme: he may call for drawings under clause 6.3 (Disruption of progress) as he wishes and may proceed with any part of the site of which he has possession. The constraint is that the Employer's obligation to give possession is governed by the programme (or 'reasonable proposals'). He will have no claim for late possession if he has not signalled his change of plan with a revised programme under sub-clause 14.2 or revised proposals under clause 42.1.
If the Contractor's programme or method statement is a contractual document, any inability to execute the works in accordance with that programme or method could give rise to a claim by the Contractor for a variation and costs. See for example the case of Yorkshire Water Authority v Sir Alfred McAlpine (1985) 32 BLR 5 where the contract incorporated the Contractor's proposed method of upstream working which proved impossible: it was held that the Contractor was entitled to a variation and payment for the change to downstream working. Tenderers will invariably be asked for an outline programme to be submitted with their tenders. Clause 42.1 (Possession of site and access thereto) reflects the Employer's ability to specify the parts of the site of which the Contractor is to be given possession and the order in which such parts are to be given to him. The Employer would be unwise to impose such limitations unless absolutely necessary as the order of the release of parts of the site may amount to the Employer dictating the programme of the works which will cause the Employer to be responsible in the event that the Contractor, through no fault of his own, is unable to work to that programme.
If the Contractor submitted a programme with his tender, that programme may well form part of the contract as "the Tender" is one of the documents contained in the definition of Contract. This could give rise to the argument that the tender programme is a contract programme with the consequences set out above. As this is clearly not the purpose or intention behind a tender programme, the parties, particularly the Employer, would be well advised to ensure that the version of the tender that is accepted by the Letter of Acceptance is one which excludes the tender programme.
In relation to methods, an Employer may well choose his Contractor on the strength of the types of machinery and methods proposed by the individual tenderers. Having selected a tenderer on that basis, an Employer may well wish to ensure that the tendered methods and machines are used on site and will therefore include the tender method statement in the contract document. Again,
the result is that the Employer takes the risk if, through no fault of the Contractor, the method or those machines are not capable of executing the works. It is submitted that clause 8.2 (Site operations and methods of construction), which seeks to place full responsibility for methods of construction on the Contractor, does not affect this situation where the method is part of the contract.
For commentary on the effect of the submission of an optimistic programme, see under clause 47 (Liquidated damages for delay).
Under clause 51.1 (Variations), the Engineer is entitled to order a change to "any specified sequence or timing of construction". Thus, if the programme was part of the contract, it would represent a specified sequence or timing and any change to that could entitle the Contractor to a variation and payment. As to a change of method, clause 51.1(c) deals with changes to "the character or quality or kind of any such work". Alternatively, a change in method could be covered by an omission and an addition of alternative work under items (b) and (e). The Contractor is unlikely to object, provided he is paid, as the greater responsibility taken on by the Employer for method, the less the risk remaining on him.
The ultimate sanction ensuring compliance with this clause is determination under clause 63.1 (Default of Contractor) item (d) for a flagrant neglect to comply with an obligation. More immediately, where the contract is silent as to possession of the site, the Employer will not be under an obligation to give possession under clause 42.1 (Possession of Site and access thereto) without such a programme, or the 'reasonable proposals' referred to in that clause. Compare the sanction provided in relation to clause 10.1 (Performance security) by clause 60.2 (Monthly payment) whereby no interim payment may be made until the security has been supplied.
It is a serious criticism of this clause that there is no provision addressing a refusal of consent by the Engineer to the Contractor's programme. In view of the importance of the programme under clause 42 (Possession of Site) and implicitly under clause 46.1 (Rate of Progress) and generally, there should be a procedure or timetable or, as a minimum, recognition of the possibility of consent being refused. Clause 42.1 should refer to the programme as approved. Overmuch reliance should not be placed on the 'honeymoon' period at the start of the project. For a provision dealing with rejection by the Engineer, see ICE 6th clause 14(1)(c).
The time for submission of the programme is to be inserted in Part II.
14.2 This clause should be read together with clause 46.1 (Rate of progress) whereby the Engineer may require a Contractor in culpable delay to accelerate in order to complete on time. Under the current sub-clause, the fact that progress does not conform to the programme could be due to any reason whether or not it entitles the Contractor to an extension of time. If the Contractor had been granted an extension of time, the Engineer would require a programme showing the new completion date. If the Contractor is in culpable delay, the Engineer
would require a programme showing what steps the Contractor would have to take in order to complete on time. In order to oblige the Contractor to work to the accelerated programme, notification under clause 46.1 would be necessary.
The wording of this clause would allow an Engineer to call for a revised programme in the event that the Contractor was substantially ahead of the approved programme. As discussed under clause 47.1 (Liquidated damages for delay), in English law, a Contractor is not entitled to impose greater obligations upon the Employer by way of the granting of possession of the site or upon the design team in their production of drawings by accelerating the work, for example, in order to obtain a bonus. Thus, an Engineer could call for a revised programme where a Contractor was substantially ahead and threatening to make claims under clause 6.4 (Delays and cost of delay of drawings) in order to ascertain what would amount to a reasonable time-table for the production of drawings.
14.3 Cash-flow estimates are normally essential to the Employer to enable him to plan the funding of the works. The Contractor is best placed to carry out this exercise as the programme of works is within his control. There is no obvious sanction if the estimate is inaccurate, even if the estimate was designed to mislead the Employer. The time for submission of the estimate is to be inserted in Part II
14.4 This clause is consistent with clause 2.1(c) (Engineer's duties and authority) whereby the Engineer "shall have no authority to relieve the Contractor of any of his obligations". It is also consistent with the scheme of the contract whereby the Employer takes no responsibility for the practicability of the Contractor's programme and methods of work. See also clause 7.3 (Responsibility unaffected by approval), clause 17 (Setting-out) and clause 54.8 (Approval of materials not implied) for other examples. See also clause 61.1 (Approval only by Defects Liability Certificate).