Can a FIDIC Engineer Reject the Contractor’s Programme?
One question that is often asked by students is “what actions can the FIDIC engineer take after reviewing the contractor’s initial programme?”. Many people think that the engineer may ‘reject’ the programme if he/she has reason to do so, but this is incorrect.
Let’s have a look at what Sub-Clause 8.3 (Programme) of the 2017 Edition of the Red Book has to say on the subject.
Firstly, it includes a lengthy list of requirements and inclusions that the programme should comply with. The detailed wording has been reduced here for clarity:
- The programme shall be prepared using programming software stated in the specification.
- The commencement date and the time for completion, of the works and of each section.
- The date the contractor will be given right of access to and possession of the site.
- The order in which the contractor intends to carry out the works.
- The review periods for submissions.
- The sequence and timing of inspections and tests.
- All activities, logically linked and showing the earliest and latest start and finish dates and the critical path.
- The dates of days of rest and holiday periods.
- Key delivery dates of plant and materials.
- A supporting report which includes:
- a description of all the major stages of the execution of the works
- a general description of the methods which the contractor intends to adopt in the execution of the works
- the contractor’s estimate of the number of personnel, and equipment required on the site.
Sub-Clause 8.3 (Programme) then goes on to deal with the engineer’s actions after receiving the programme for review:
‘The Engineer shall Review the initial programme… submitted by the Contractor and may give a Notice to the Contractor stating the extent to which it does not comply with the Contract …’
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Thanks for sharing this invaluable information. Very often, the Contractor and Engineer get into argument, because the Contractor had served notice for claims with reference to the inadequacy of his own program, and which the Engineer had failed to notify his concerns within the time allocated in the the contract.
You are right dear mr Reid.
However this is mostly result of the programme importance underestimation by the parties, sometimes also unproper administration by Engineers.
You mentioned “arguing between Engineer and Contractor ….”
That is the key point which has to be eliminated.
Engineer is forbiden to argue with parties. Her/His role is very clear.
In my humble opinion a dialog desk opening should be mandatory from the commencement day.
Daily and at least weekly coordination meetings to solve and properly document (stamp/signed) initial probleems I would put as obligation before the parties.
I would even require daily coordination meetings in the first 28 days after the kick-off meeting to exchange and register the most important issues which by experienced Employer Engineer and Contractor are recognized even in the tender clarification stage. This time period I see as most important but in the praxis parties remain very silent then when they had to work hardly since the programme preparation in 28 days it requires.
In most cases everything after 28 days ends with some initial simple gant chart and Engineers ie Employers let unprepared Contractors to start !!!!
Project I always compare with a house building, its proper maintenace and permanent investment during the exploitation time. So if the foundation is wrong soon or later everything goes wrong.
The key is to allocate reasonable time for activities, and carefully outline the logistics of the project within a robust plan. Very often, the programmer is not properly aligned from the outset, and this posed difficulties later into the construction phase.
Very good clarification
Thank You mr Emara
It is just to add one another, also very important issue.
It is rather difficult, or even impossible to make delay analysis without a good prepared and maintained PoW.
The only way out would be so called Collapsed As-built, (But-for) delay analysis which is based on the events retrospective. Though the retrospective can be very well supported it comes very often too late at the desk and is subject of long and exhaustive discussions.
However it also helped me very much by one project which took almost two years and where PoW was in a way ignored and underestimated by both parties.
I maintained fortunately claims and construction diaries properly, submitted officially a lot of particulars, and kept the whole correspondence with Employer and/or Engineer.
It was very helpful by the final negotiations.
Kind regards
Sead Jamak
Dear,
thanks a lot for shearing such interesting and important issues.
Below I am free to give some comments relating programme issue.
Everything usually goes well until certain project date i.e. milestone time point.
However the programe story begins, or at least should begin, prior and during the tender stage when clients are required to create clear requirements and bidders are required to submit with their offer a document for me often wrongly called “method statement” based on the requirements. Clients and bidders mostly ignore this part, or just do not put appropriate attention to this issue though it is mostly one of the most important, also sometimes even elimination criteria by the bids evaluations.
This is particularly the case by the projects in the so called developing countries, like my Bosnia and Herzegovina had been developing almost 30 years, but seems to be never developed due to the lack of the proper development programme and its following by different PARTIES.
Therefore initial programme should be in my humble opinion the bidders obligation to be properly evaluated by the client`s administration and put at the desk on the very first day after the kick-off meeting.
I find as very important interactions between SCs 4.21, 8.3 and 8.6. including consequently and subsequently all thereby connected and relevant SCs.
SC 4.21 I find more as Contractor`s obligation and not just a duty. It contains so many important required data connected with different SCs containing Employer`s claims entitlement. Lit (f) even requires Contractor to give, not only a list, but also all details about parties claims. One of the first documents required by DA(A)B-s are monthly reports to take a look at the Claims and Counterclaims status. Lit (a) requires the first report very soon after the commencement date so very soon after the initial programme was, or had to be submitted and discussed.
From Contractor`s perspective Programme should be the first and most important obligation leading to the successful fighting with projects challenges. So the Contractor should not be angry when receiving Engineer`s letter refusing i.e. rejecting this document.
As You very nicely said, it should even answer politely and I would add should be thankful to the Engineer.
Submission of a polite and founded notice goes without saying. Your Webinar related to the Notices in FIDIC Contracts I have listened several times and always find something new there.
Sorry about so long comment and my poor English.
Yours faithfully
Sead Jamak