Transcript for:
Fennick Elliott Webinar: NEC Accepted Programs

hello and welcome my name is jeremy glover and it's my pleasure to welcome you to our latest finick elliott webinar this month we are turning our attention to the any ec accepted programs our panel will look at how to avoid common disputes and and the type of pitfalls that they see all too often both up and down the contractual chain and they'll explain how to ensure the accepted program on your project it's the useful project tool envisaged and i think it's fair to say expected um by the nec form joining us today is scott jardine as chartered civil engineer with over 27 years experience currently a senior managing director at ankura based in london recommended as a global leader by who's legal in 2022 um scott is praised for his pragmatic approach and high quality output as well as his simple and clear response all of which are key attributes for anyone dealing with programs god is joined by two of my colleagues partner claire king who's been at fenekelia for nearly 14 years now she currently sits on the adjudication society committee and is one of those heading up the research into adjudication that's being carried out in conjunction with king's college senior associate mark pantry is a key member of our projects team his specialist has specialist knowledge across all contracts being a founder member of the jct young professionals group so before i hand over to them just a reminder you're all on mute but please do send in any questions and you should be able to find the slides on our website later in the week a link we put on the chat during the webinar but claire over to you thank you very much jeremy um as jeremy said we're going to aim to provide a practical guide to nec accepted programs um both from a legal and also from a programming perspective during this webinar um we're going to look at first of all what is the purpose of an accepted program and how does it fit into the nac contracts the whole taking into account the nac ethos and then how to set it up correctly and what does the contract provide for the requirements for accepted programs any amendments to it accepted programs and how that you slow that down to any subcontractors and scott's going to provide some programming tips for setting it up correctly in the first place then we're going to look at how to keep it going which we all know can be difficult um in projects and then what happens when the system breaks down both during the job itself and also at the end what are the common problems we see and our ideas for maybe have to tackle those um and solutions um both from a practically practical programming perspective and also from illegal perspectives so turning first what is the purpose of an accepted program now i know any anyone working in the nec um world knows that it is a very different contract and it fundamentally requires a different mindset um to work properly and i just thought i'd very briefly refresh you memories on that because it's it's in the accepted program is a very important part of that ethos and how the contract sets it up to succeed if you use it properly so obviously the parties we all know are meant to act in the spirit of mutual trust and cooperation um you've got collaborative working which requires early identification of problems and a proactive approach to addressing those problems and the whole idea is issues are resolved as the works progress ces for example essential time requests are meant to be looked at as they occur and resolved as soon as possible prospectively not retrospectively so you're not meant to have this final account process at the end of the job although we all know that does happen um all too frequently unfortunately so to encourage that proactive approach the contract provides a very prescriptive procedures including relation to accepted programs which are going to run through and with you today and also tries to use clear language although i think some people would debate that so how does the accepted program fit in well it's all about future project management project management people want to know what they have to do and when and the contract encourages that and expects clear consequences if people don't abide by what is in the accepted programme so some of the ces and i'll just list the sort of the most obvious failure to access access by the date shown in the accepted program the client does not provide something by the date and the accepted program the client or others do not work within the time shown accepted program and the date of plan completion um the employer stops or the event stops the contracts completing by that time obviously in order to get that ce you need to have things in the accepted program that you can use as a hook so for contractors it's a really strong incentive to make sure you've got those key dates in that program if you've missed them and they're not in the accepted program then you've lost your chance for a ce potentially if you've got a good accepted program it should allow an assessment of extensions of time without the need for a complex dna analysis and put scott out of the job collaborative working and dispute avoidance is all about that and how to encourage it so as i said it's a tool for assessing compensation events but it needs to be regularly updated to allow for that contemporaneous assessment or it becomes too out of date the contract itself uses the accepted program's current accepted program current at the dividing date in order to do carry out that assessment so the dividing date is either the date of instruction notification certificate or changing of the decision or it's the date the ce was notified and we have we do sometimes see amendments to that provision and it's not necessarily a good idea because those are the logical dates we're looking at the accepted program and it's also a real incentive to notify your ces on time so you know don't don't fiddle around with the wording unless it's really necessary so that's the wording for when how you use the accepted program on the dividing date so i think scott is going to look at that from a practical perspective a bit later um if there is no delay to completion when you input you'll see then the contractors float within the program will be used up um but if the delay does impact on the critical path then the contract will retain its terminal phase and we'll look at that again how that works in practice and wrong theory a bit later on and then it's just worth noting that the nec guidance note says that only operations which are not complete and which are affected by the compensation event for change when you're looking at the impact of a ceo there are some carrots and sticks for encouraging people to set up their accepted program and keep keep on top of it clause 50.5 um is probably the biggest stick um i don't know how often people actually use this but if there's no accepted program provided from the contract data and you're meant to provide one then one quarter of the price for work done today can be retained until you do get an accepted program um and some people i've seen suggested that you might you might continue that through the job maybe less of a retention as an incentive to keep that going um it's quite a draconian thing to think about but um there is that stick in the contract so don't forget about it um also maybe even more importantly you're going to lose control of the compensation event assessment process if you don't have an assessment an accepted program because the pm is required to assess all compensation events um and use their assessment not your program so it's it's in your own interest to have that accepted program in place so we're going to look at how to set it up correctly because with all that theory in mind all too often there is game playing um on accepted programs um and we look at how to try and stop some of the worst um problems we see so i'm going to hand over to mark thanks claire afternoon everyone um obviously from what claire's been talking about the importance of the first accepted program can't be understated you've got to set it up correctly and there's two ways that the the nec contract allows you to establish a first accepted program the first program can be either identified in the contract data and that's usually the tender program that's been submitted by the contractor um so even more so than other accepted programs it's frequently out of date that that first accepted program by the time the contract is entered into and by the time that works start um if the if the tender program is used and it's included in the contract data then that accepted program is the only time when the requirements of clause 31.2 don't apply um we'll go into more detail about what clause 31.2 requires but that only applies where programs are submitted for acceptance if they're included in the contract data then they don't necessarily although it is obviously best practice to comply with those requirements if an acceptance program is included in the contract data it's deemed to be accepted by the parties um when the contract's entered into the second way you can get your first accepted program which is it must be submitted for acceptance uh within the period stated in the contract and this is where we get to with what claire was saying before about that there might be a period where money is withheld until an accepted program a program for acceptance is provided and then accepted this obviously increases the the chance of there being no accepted program uh for a contract either the contract doesn't the contractor doesn't submit one which case that money is withheld or that first accepted program is never approved by the the project manager and you could get into a slightly very a very odd scenario where you start works without an accepted program hopefully uh as we we've shown that that would be um an issue for both both the client and the contractor and we'll go into ways uh later on to go and resolve it there is only ever one accepted program uh previous accepted programs are superseded by the by the newest version one question we get asked quite a lot is about the the interrelationship between an activity uh schedule under options a or c and the accepted program but they are separate documents um and they need to be separate documents but they're frequently linked um if you look at clause 31 for under option a you've got to show each activity on the activity schedule relates to in detail but so it relates to the detail in the program submitted for acceptance in the guidance note the the nec says that the accepted program and the activity schedule won't necessarily be identical but they should be correlated that correlation should be updated as as the um throughout the works as they progress uh and it's interesting if you want to look at it in in the in the nec contract itself it uses the term operation instead of activity to distinguish those two uh items so on the next slide we'll go into more detail at it set out the precise requirements of what is in the accepted program um but broadly the accepted program is required to contain the items in 31.2 uh and those are are generally dates you know that that's what you kind of expect from a program some dates are known some aren't and some are planned and some dates may not be within the contractor's control so that there may be deadlines that the employer or others have to meet methods this is the equipment and resource that will be used um but also the ordering and timing of the of that equipment as well so for example if you need a hoist on site for a particular operation that going back through the program placing the order for that for that hoist could be on the program as well provisions um those are usually items which that the contractor doesn't want to disclose as a matter of course you know his flow his time risk allowance and so on but they are sought as part of a wider nec idea of of transparency and then the final broad heading is information and that is the other information required by the contract whether that's in the scope or through amendment and what kind of amendments do we see frequently to to the requirements well you could see amendments to change the timings for for submissions of accepted programs or programs for acceptance you could make it more frequent if so required although that obviously increases the administrative burden or you could make it less frequent if you've got a particularly difficult project where you are relying on subcontractors submitting their accepted programs and building it from there could also have requirements about the particular type of programming software you require a contractor to use and that could similarly be flowed down to subcontractors as well you can also use it to link if the nec pro contract doesn't use provisional sums but you can see amendments sometimes to include provisional sums in the nec contract and frequently that is linked to the accepted program dates by which provisional sums have to be instructed or otherwise so on this next slide i've set out in full the the particular requirements under clause 32.1 as i say broadly broke down into those four broad areas dates methods provisions and information so on um i think the second to last scott is going to go into more detail about what is needed for that statement on how the contractor plans to do the work um i would just watch out for that final bullet point there which is a kind of wrap up and says anything else which the scope requires um it might not be a specific section in the scope which says this is what you require additionally it might be hidden somewhere among the scope an additional requirement for the accepted program and the process for accepting it or rejecting it on the next slide we've got a a flowchart of of showing how uh the process works previously in any c3 there was no deemed acceptance of of programs uh nec4 has introduced that albeit there's quite a few hurdles that a contractor has to jump through to to make that the project manager's got two weeks to to accept or reject um and then uh the reasons for acceptance sorry for rejecting are quite limited the commentary is that the one and three below uh you know practicable um or realistic planning that they are often they often go hand in hand um and and the project managers gotta act independently obviously when when giving those opinions on whether or not a a contractor's plans are practical i would just say as well that plans is not is not defined it's not just drawings it probably goes further than you know wider wider method statements for the scheme a sale here is is a flowchart hopefully which will be helpful to show how a contractor submits its accepted program and what happens if there is a rejection an acceptance or if there's silence so after if after two weeks there is no response then the contractor again has to notify the project manager of its failure to accept or reject after another week there is deemed acceptance of of that program so it can be up to three weeks um it could be longer to get an accepted program deemed accepted so i think i'll pass on to scott thank you mark nope sorry that was my fault um yeah thank you mark the what i'm going to talk to you now is some some of the practicalities of um what i've seen as being successful in any c contract programs the to in my mind one of the key elements of this is to really understand how the program is going to work for you as a as a project team so yes it's prepared by the contractor but it is in the intention is that it's a useful tool that everyone trusts that the information in it is accurate that it's being updated um sort of diligently and transparently so to help set that up you have this um statement of of work which you know in other words it's used by a lot of planners in a lot of jobs but it's a sort of program narrative so what you're trying to do here is to explain in words what you're showing in in the activities in the program and this will it should include your explanations only at the summary level of why you've got particular sequence of works what resources you're going to use what equipment you're going to use and that becomes very important later on in the project if there's changes because if you've set out that this this initial program is set up on the assumption that this sequence is going to be followed because of these requirements or these dependencies then if that changes you can revert back to this statement and say that's how we originally planned it things have changed we now need to change the plan to show this so by setting this all out transparently it can be a real help not only in initially getting the the first program accepted but it helps smooth the way for future programs when you need to revise them because that that thought process has been set out now one of the the sort of key parts of nec is time risk allowance which i'll go into a little bit more but again the statement the statement of work should include an explanation of how you're dealing with that and how you've come to consider it the usual things for time risk allowance are for instance doing earth works in the winter or activities that may be subject to wind interference so if you've got if you're building a high structure and you've got cranes with limits on them how uh how much how strong the wind can be to lifting all those sorts of things are very important to include is time risk allowance and the narrative part of the of the package of the program is is a key part for you to explain why it's there and if you're the other side of the fence if you're the project manager it helps you to understand the contractor's thought process enables you to challenge it a little bit more you know to stress test it and become comfortable that what's being put in the program is is appropriate the descriptions of working calendars is an interesting one there there are there is a way of putting in time risk allowance into your program by using the the calendars that sit in the software so you might have a calendar that's dedicated to earth work activities that that shows that during the summer months you can work 12 14 hours a day very unlikely to be to be impacted by the weather so you might allow one or two days a month where you're impacted by rain that same same calendar can show in the winter that you're going to expect 50 weather disruption you're going to have low low levels of hours per day you know eight or four whatever you might be able to do and by by again by explaining that in this statement of work there's no you're not hiding the fact that if delays cause your earthworks to move into the winter the activity duration will extend and it's not because of any slight of hand it's because the risk for working in the winter has been included in the program in the calendar and it will naturally be shown in the program but again it did just help shortcut any arguments if you explained that in the statement of work oh i'm sorry i'm pressing too many buttons too eager so what i've got here is a very simple gantt chart just showing uh some of the key points that mark touched on earlier and you see a couple of uh key dates that are you need to include in your program so you've obviously got the start date it's not necessarily this the case that site access will be the same as the project start so include a site access date and towards the end of the project you've got two completion dates one is the plan completion so that's the date you're planning to finish the works and the project completion is the date that you are the contract you're contractually required to so lds will flow if you're if you're not done by then and in between those dates i've just set out their sort of typical the red bars are critical path the green bars are activities with float in them but they include activities where you're you might be waiting for active information for others you might be waiting for access to certain areas you might be waiting for you know keep needing materials from the employer and even some of the slightly less interesting areas of a project the site office set up you know you might include or you probably should include some activities for that because it's showing you the whole how you're going to do this project as a whole not just the sort of the bare minimum of the activities the time risk allowance which i mentioned earlier is is specifically um highlighted in the nec contract and it is very it is actually very different to the float now floaty or is found in all programs in its simplest form it's just a gap between the finishes of one activity and its successor that um it could be delayed slightly before it causes any critical delay to the end of the program however terminal float is something that the nec has sort of specifically identified and it's effectively it's owned by the contractor because it's the period of time between when the contractor plans to finish the work and when it has to finish the work and that in the nec is is a sort of known period and it's termed terminal float time risk allowance as i mentioned earlier is to do with identifying and then and showing the risks that you are anticipating on this project um i use the weather the weather for earthworks as an example that's a pretty typical one and it can be shown in a number of ways i've already explained the the way of putting it into a working program so working calendar but you can show it as a block duration so at the end of a particular activity you might say well we're going to allow an extra five days time risk allowance there because that activity might be delayed due to delays and transportation which are outside of our control or you can scatter it amongst the the activity not my favorite if i'm honest because it's very difficult to keep control of so you might have you know you might just say within this activity duration you know i've identified a couple of points of time risk you can actually not show it at all you can just have a slightly extended activity bar again not my favorite becomes absolutely ripe for argument about where the time risk allowance was and how you how you deal with it um or you can show it in the um in the calendar which then you know adjusts or changes depending on whether it's a time of year related risk but i think one of the important things is there and i've shown it very simply is to identify that time risk allowance and show how many days or weeks you've got in a in each time risk allowance category in terms of float free float as i said is effectively it's in every program and it's just the gap between activities that are not critical and activities are critical and terminal float is there in that bottom right hand side which is the time between plan completion and project completion so it again in there just an example of where you might see timeless allowance in the the program my preference is to have it specifically identified as a separate activity or as a block duration but they there are numerous ways of doing that and now i think i'm handing it back to where to mark thanks scott i think that's really interesting because i think in the industry i think i'm guilty of this as well that um float is just used for a catch-all for everything including time risk allowance um so i think from future i'll be more specific so once you've got your first accepted program and you need to revise it um as the project continues and the specific contractual requirements uh for the contractor to to revise its program um usually it's monthly although it could be more frequently if needed um again it if the monthly requirement to do an accepted program and submit it is is too much then you might want to consider amendments to to increase that time period to give everyone a little bit more breathing room particularly when you've got lots of subcontractors to manage and manage their accepted programs as well so what if you've got a show on on each revised program well you've got to show everything that you previously showed on the on the previous pro program for acceptance by that i mean everything that's in clause 32 31.2 but we also got to show these three additional bullet points on the slide here so you've got to show progress um on on each operation and the effect that it has on the remaining work and how delays are dealt with and defects as well um so that could push back the the planned completion date uh and it is perfectly acceptable to have a a program uh where the pal where the planned completion date is after the completion date um and then the final bullet point is actually quite a powerful tool for the contractor it's anything else that the contractor wants to show and a project manager should be aware of revisions um programs are a contract to lead as as we've said but a contractor could in dealing with delay reduce periods for client activities so if there was a halfway through a program a client activity which was uh two days and as a result of the delay the contractor has proposed to reduce that to one day in accepting the program that would be accepted by the client so a project manager needs to consider that period is reduced that is a client activity is that acceptable very briefly just looking at subcontractors accepted program i think a common issue is subcontractors being relied on for for information which feeds up into into the main contract program so when looking at those uh subcontract programs um and the process in the subcontract for getting that then you might want to consider changing around those timings um considering as claire mentioned before about whether or not you need more of a stick than a carrot you know retaining money um and you would need a specific contractual provision to do so uh until a subcontractor provides his program i think scott i'll pass back over to you on that yeah thank you mark so what i'm going to do is just to go through hopefully fairly briefly a sort of example of um aspects of revising the program um as mark mentioned one of the important bits is getting accurate updated progress to date now hopefully that is within the contractors scope of influence to understand exactly how progress is going on on its bit to the works but it's not unusual for there to be some miscommunication between subcontractors and the main contractor or a supply issue where contractor might not be aware that a piece of equipment is delayed in transit but it's really important to try and get that updated information as accurate as possible and as part of the the revision of the programs you really do want to consider everything possible because the whole aim is to again keep the trust in the program make sure that everyone sees it as a reliable and genuine tool for the project to use so people go to the program to see not only what you know how how progress is going and you know that things are on time but looking forward what do we need to do next what's the next things we need to do as a project team to get this this project delivered and hopping back to the planning statement again it's a favorite of mine it gives you the opportunity both sides to properly understand the program update you know why have why have things changed if you've changed the program why has it changed since the last update you know explain perhaps how you've you you've you've discovered that you need a different sequence of works in the future um you know it and it's just transparently again explaining the reasons for any changes the reasons for um why the program now looks like it does and a very important part is is confronting the time risk allowance periods in in the program as the project moves on your your need for time results should reduce so if you've broken down time risk allowance into separate elements of sections so you know there will be a time risk allowance associated with foundations for example once you're out of the foundations that time risk allows you've either needed it and you've used it or you didn't use it and you should release it so you know i'm a great advocate for thinking carefully when you're setting up the time risk allowance so that you can release it as you go saying okay actually earthworks work really well we didn't have that two weeks of weather delay we expected so i don't need that and you release it from the program now there is always a temptation to hold that in reserve to say well i know i didn't need it for the weather for the earthworks but i might now need it at the end of the job i mean i would very strongly advise that you don't do that because you should already have appropriate time risk allowance built in for the activities at the end of the job and again it just helps build trust between both sides that okay that risk didn't materialize you no longer need it it's released but equally you might have additional tra needed and the covert 19 was an absolute great example for that every project er you know in pretty much in the world suddenly now had a new risk on the on the risk register covert 19 what's that going to do um and the the nec projects i worked in most of them did a good job in identifying that and trying to allocate time risk allowance into the future using one of the you know one or many of the revisions of the programs as the impacts covered were known more but again explanation right we've now got an extra 40 days of time risk due to covert 19 on these activities split over the next 10 months say in a planning statement will help to to smooth that through so again very simple graphics just to show different scenarios this one is an example so the red dotted line down horizontal vertically down to sort of a third of the way across from the left of the program is your update date so we're saying right as at the end of august 2019 here's a here's an update to the program in this instance actually progress has gone to has gone pretty much to plan there's been a little bit of delay to the structural design but that's a non-critical activity so whilst it's showing delay to those activities you've got no impact on the end date no impact on your plan completion so that would be a fairly simple update next one is a is a an update where you're perhaps showing critical delay so in this instance the process processing unit has fabrication has been delayed you're showing there this is an assumption that it's the contractor's issue yes our process our fabrication is late it is on the critical path and we're showing a delay to the critical path in this instance you would show that it's got an impact on the planned completion so that's the date that your the contractor's planning to finish the works but the project completion doesn't move because you haven't had an extension of time and as a result the terminal float reduces so that's the sort of almost the last ditch catch all risk allowance in the program is this terminal float so the contractor can say right we've got a problem here plan completion is slipping so the terminal float will reduce between the plan completion and the contract completion of course not all delays are going to be due to the contractor so how how do you deal with updating the program for compensation events that's a that's about a three-hour session its own right so we're not going to go any very close to it but the process is it is set out in the nec you know you're supposed to pre-warn so an early warning there's a problem something's going to happen you put in your notice of compensation event or there's a project manager's instruction if it's originated from a project manager and then you produce a quotation and it's the quotation that includes the assessment of the impact of the contractor sorry impact of the event on the program and it is a prospective impact so it does say in the contract contractor this time impacts usually shown on programs by um on in progress and future activities so it doesn't mention retrospective it's saying you do it looking forward and the dividing date that claire touched on earlier is important so that's the the date where you update the program to the dividing date so you bring in all the historical information up to that date and then you assess the impacts going forward if if there's no accepted program then the project manager does that assessment which is obviously not not an ideal situation um you know the wheels are starting to come off the project but that is that is the way that the impact is done if there's no acceptor program and here i've just again very simple example let's assume the dividing date was the end of june 2019 so that's the red dashed line running down the page the event was a employer design change there's been an assessment that that will be add two months to the processing unit design that's put in the program um the the accepted program is is updated to the dividing date then this impact is shown and this is showing a change to the revised plan completion date but important to note because it's a ce if it's approved then that whole um time period shifts so the terminal float is retained by the contractor and the how much the revised how much the planned completion date changes is reflected in how much the project completion dates changed so it moves in in a sort of parallel motion across the page a little bit more on the the terminal float different scenarios there just to try and just sort of hammer home the internal floaters between plan completion and project completion as shown on the top of those four slices there the second one if there's been contractor delay then the you can use the terminal float up without moving the project completion date in fact you can't move the good project completion date so you get to situation where as mark was saying earlier you can show quite legitimately you plan completion way past the project completion date because either you haven't had an extension of time granted but it's it's most important that the program is believed that it's trustworthy so yes you can fight over whose fault it was but you're showing we're not going to finish until you know much later than we planned and here's the the impact and and what we need to do as a team to hopefully pull that back if you're ahead of plan progress the tonal float increases um because you again you're not moving the project completion date and once you get a approval of a compensation event then then the project completion date can move in in line with the with the approval of the extension of time that's approved i think it's back to claire it is so what could go wrong um i thought we'd sort of illustrate some of the common issues we see and i say i see as a dispute practitioner first thing common issue is the delayed submission of the initial accepted program and that's a real issue because you're then constantly trying to catch up and obviously sometimes the delays due to very good reasons you want to make that program as good as possible but it causes real knock-on issues going forwards because you're constantly trying to update it and you're behind essentially right from the beginning so if possible try and avoid that another common program issue is where subcontractors programs are not realistic and you've got constant issues trying to fit them into the main contractors program and then go the mark sometimes that's because of subcontractor failures quite often it is but in other times subcontractors are working from an incomplete picture and they're effectively shooting at an invisible target because you have not provided them enough information to allow them to give you a program that works so that's really something to think about it's something that subcontractors particularly m e subcontractors frequently complain about they don't know what's happening and when from their perspective so how can they program when they're constantly having to shift um another problem um is where people are working on different programming software that's a real headache and it adds to the administrative burden of passing things out the chain so try and avoid that as possible another issue is where subcontractors might be on a jct forum and you're working on the ac um nec higher up the chain the two don't work together and so try and avoid that impossibles particularly on programs because you haven't got that update or if you try and write it in it just doesn't work in quite the same way um constant rejection by project managers is is another bug there we see all too often sometimes that's one issue that's quite a minor issue um and maybe just needs to be nipped in the bud quickly everyone needs to get around the table and talk about it and it gets resolved sometimes that just doesn't happen it could be an initially sensible reason positions hardened and you end up with this snowballing effect and that can be compounded if at the same time you've got to lace the programs and the subcontractors aren't bleeding in so it all builds up very occasionally and unfortunately i have seen this is almost a deliberate i'm going to reject this accepted program because i want to ex i want myself to assess the ce and i can do that easier or to my own faith you know favoring myself if um if there isn't an accepted program that is not nec behavior it's going to lead to worse problems it's going to be a recipe for dispute in practice so if people start seeing that behavior you should have massive warning flags um and the employer should stamp on their project manager at that point because it is not in the interest of the job and it's going to discourage you from believing in the program but unfortunately we do see that um all too often failure to show key information i.e dates design has to be ready by dates clients have to provide equipment information etcetera if it's not on the program a you're reducing your chances of getting a ce for it and an extension of time because it's not there but people are working to this it's meant to be a working project management tool so it's thinking about that in advance and making sure that information is there um and again accepted programs that haven't dealt with um seas or potential c's in them and where there are issues and people know about the issues because they're worried about results um again it's difficult and it goes against instincts but you should be showing what is happening and even if you haven't got the acceptance yet because it's about trust in the job and you can't build this thing ultimately it's meant to be a working tool if you don't have trust in the program and people can't rely on it so from our perspective and i know scott's going to cover this from a programming perspective try and stick to contractual deadlines because often if they slip even slightly it sets off this chain of events that's detrimental to the job down the line that often needs sufficient programming resource quite often we're told that people have left and there isn't a programmer and they all they only work a certain amount of time you need to buy into this process and that means putting the resources in there at my main contract level but also at some contract level it has to be prioritized it it's a task that has to be done once you get into the swing of it especially at the beginning it will be easier if you've done the job right to start with help the subcontractors to help you by giving them the information they need to do their job and making it reliable um if everything's starting to get too difficult get people around the table explain what you've done and try and start getting around those issues the earlier you do that and nip it in the bud the better but from a practical perspective if people keep on rejecting your program that you think they're good you think they're accurate and you're happy with them continue submitting them even if they aren't accepted don't get disheartened it will save you a lot of money at the end of the job if you end up in a final account fun fight if you've already got those programs there if you've got accurate update information and you're happy that he has built data in there it will save you an absolute fortune but also it means you're on the you're on the front foot people will know that when it comes to trying to settle it if you have got a dispute um obviously submit it's good contemporaries evidence if they're accurate and that's a big if so make sure that they are accurate and they reflect what is actually going on on the ground use the tools in the contract to push the project manager if they don't do their job and respond to the requisite time scales that is their job they should be doing it and the reason the deeming acceptance is in the nec4 is it was such a problem in the nec3 so have a look at the flow diagram we put early in the slides and use that and think about it and use it as a tool if that isn't working then you need to start thinking about escalation and too often people think about escalation too late down the line um at the beginning of the job it is the last thing you want to do is just sort of crystallizing a dispute or talking about escalation or getting its resolve but if you have got around the table and you've got difficult people maybe one person who's blocking something and it's just not happening and you need that accepted program then seriously think about using the tools in the contract for escalation and that means senior representatives meetings or if it's really important and you know that this is going to be a massive problem and you've got warning signs it's it's a difficult decision for commercially but think about adjudication because if you can get that accepted program accepted you've got the baseline and it may knit a lot of bigger issues in the budge obviously that's a big cause especially at the beginning of the job but something to think about so i'm going to hand over to scott for a sort of more of a programming take on these issues okay very similar it's just you know keep going keep going with updating the programs and make you know don't lose heart with the with the process um it's it is really important that the program updates are accurate and that you've got supporting evidence for that not only so that you can at the time demonstrate that the program's reasonable and is a tool to manage this project but as claire said it will save you a lot of heartache in the future if you do need to go back and and explain your position and show how delays built up over time the one of the worst things that can happen nac and it happens a lot unfortunately is there the whole sequence gets out of sequence so you're ending up you know looking well which which program do we use to try and understand the impacts of this ce and there's a lot of games that can be played in trying to sort of disrupt that process so it is really important that you you resource up for it and you get your foot get your foot ahead and keep going um it's just you know it's it just can't be underestimated how important the program is in the nec and back to you past the point of no return um by which i mean um you're at the end of the job and you're essentially in a jct style final account process which obviously shouldn't be happening under the nec in the first place so you're in a bad position that does um common debates we see um prospective versus retrospective analysis of time so obviously the nec is meant to be forward-looking you're meant to be forecasting what the effect you'll see is going to be and that is meant to be resolved ideally before the works are even done so that it is a theoretical assessment um if you're at the end of the job and say you've got a lot of c's that haven't been accepted or that the quotations are in dispute but you know how long those activities actually took then a retrospective analysis is something you should think about especially if your forecasting wasn't very good at the time and you've got a very big discrepancy between i think it's going to take x and it's actually taking that long that's not going to be very convincing to any adjudicator certainly not in my experience so you need to be doing a sort of reality check at the end of the job you can't just say oh well nec's perspective here's my massive forecast for something that actually took this long um it in our experience it's just not gonna it's not gonna wash um our accurate contemporaries programs available if they are big tick you're gonna save a lot of money very useful um you need to check the progress data in them is reliable and too often people say yeah yeah yeah that's fine but you actually get down to it the asphalt data is not 100 um accurate you need to check that and verify it and what other records have you got to do that just relying on the program is never a good idea you always need to check that your program reflects common sense and what actually took place on the job having a theoretical whizzy program analysis and then you go actually there's a document here that says that didn't happen on that date that throws your entire analysis out the window isn't nobody's interest it's just time consuming and it costs money um yeah so it is i mean the other lesson is it is always more retirement consuming expensive to analyze an extension of time entitlement at the end of the job especially where it's not just one it's like lots of c's that haven't been agreed and it's a big mess memories are not as fresh starfleet and records are lost people sometimes throw them away so keep that in mind when you're going through the job however hard the accepted program process must be really process try and push forward as best you can and we realize that sometimes it's just not possible resolving those issues and getting on top of them really quickly because people are more willing to do that while issues are still fresh and it's easier to do it and also you're prospectively analyzing it and that could wake up as a good thing or a bad thing it depends what your analysis says compared to reality but push it forward and try and keep on top of it because it is more expensive to do it at the end of the job so scott yes and a bit of sort of um more stories here in terms of you know how do you approach it in the real world um definitely one of the issues is do you do you deal with each issue separately or do you just throw it all in and and sort of hope for the best i think they both have advantages or disadvantages i think if you're at the end of the project you probably would put everything together because it's going to be much harder to explain that you've done a legitimate explanation of a one compensation event in isolation if you haven't also included what the rest of the issues that were seen on the project um and so how how do you do that in in an nec related dispute well yeah you could do the compliant time impact analysis so you're you're taking the program the most appropriate program whether it's you know the accepted program or an update or if there wasn't an accepted program an early program that you say was a reasonable one but as claire was saying in the you know if this is after the event you actually know what happened on the project so it says it it would be high risk i think to only approach um a dispute at the end of the job using a time impact analysis at at the very least do a sense check so look at whether your time impact analysis is showing anything close to what actually happened if it does then you've got a chance um all you do and you undertake a more fact-based analysis um more traditional delay analysis looking at how delay accrued over time but does this run the risk of not being accepted now i've i've seen adjudications where some adjudicators are very um very strong on keeping the nec contract processes running so they will only take the results of a time impact analysis and i've seen the other end of the spectrum where they won't look at the time analysis it's all about what actually happened so yeah belts and braces do both but that's really expensive and takes a long time to to prepare so in our ideal world don't let it get to this situation but as players already mentioned that regardless of what's happening records are absolutely key um and part of those records should be your planning statement so you can explain how the program evolved over time and i think it's particular yeah and i just um finishing off with this um northern irish case which i think is it's one of we don't have that many nec cases generally but just to refresh people's memories of northern ireland housing sector versus healthy buildings it is northern irish but it's still good guidance and people people are adopting it and this is this quote and it was a final account excuse the end of the job why should i shut my eyes and grope in the dark when the material is available to show what work they actually did and how much it cost them and applying that to program it's just if you if you're going on a very unrealistic prospective analysis that differs wildly to what actually happened you are on a losing ticket um in our experience anyway right from the beginning so just keep that quote in mind if you are in the final counseling process um because ultimately you've got a claim and you need to prove that on the balance probabilities and reality is always a good check for that okay with that i think it's questions excellent um i think thank you all very much that clearly was a very practical guide to um some of the issues and unsurprisingly we've had a number of questions particularly right towards the end of these sessions apologies if you don't have time to to consider them all but most of them has been have centered around the question the concept of the accepted program and what happens if the program isn't accepted within the preferred time period what if the project manager gets it wrong keeps rejecting your program um i suppose what do you do if the program isn't accepted i'm scott i know we've talked about it in some degree but if you've got any sort of further comments on that i think i think it's just um keep going i mean keep the records keep doing genuinely sensible and realistic updates to the program because at some point um those will become very important i mean hopefully the deadlock will be broken and you'll get an accepted program but you still then need to have these updates so you can understand how the project developed over the time so i would just you know stick believe in the process keep the program um a real a realistic tool don't try to play too many games and make it political to sort of meet your own ends but keep it practical realistic with supporting records okay thanks and so without the accepted program the project manager still needs to sort of carry out their own assessment is that right that's right if there's no accepted program then the project manager will have to do the impact assessments on uh using their own uh knowledge and experience of the project so it's it still happens but it's um it's taken away slightly from the contractor okay no nice thank you um and i think there's been some discussion of subcontractors um i mean i think maybe perhaps one for you claire um how do you encourage the subcontractors to produce an accepted program it's a good question i think first of all is checking that you have got those nec mechanisms in place and they understand what nsc involves and as you go further down the contractual chain sometimes people are less familiar with the processes and if you can get in there early and explain to them what you need and make that very clear um perhaps have a session with them to explain it that helps there's obviously the stick or potential um stick of withholding monies maybe you could flow that three further through the job that's you know might have pros and cons to doing that and but also too many times on acting for subcontractors you see that they just don't have the information available to make sure that their program can work they don't have the width of the vision they're not the main contracts they don't know everything so actually a lot of the time it's about making sure you want to keep what you're doing is the main contract is slightly sort of hidden in some ways but actually is that backfiring because you then don't have the tools you need to compile your program so it's sort of chicken and egg and i think people think you need to think about that a lot more right at the beginning of the job before things become political is everything realistic do they have enough information available and i suppose also enough time i mean programs do take a lot of time to put together and put right and i think something that whatever contract you're working under um you know so people need to to bear that in mind um mark i know i sort of highlighted you at the beginning for being so part of our project team and we've been focusing on the actual specific clauses of the um nec form and someone's been asking about whether you see many amendments or any amendments to the nec contracts when it comes to dealing with accepted programme to be honest that you don't see that many amendments because i think it's generally accepted what contractors and subcontractors have to deliver with their with their nec programs what you do see is what i was mentioning before about specifying the type of um programming software that a contractor's got to use and how that's got to be integrated so it's more you know how the information is being presented if if a client wants the program presented in a particular way then it should be expressly stated um you could either do that through through the scope or or the works information um or you could add it as a z clause okay thank you um i think we're going to have to draw proceedings to a close now as i've said um copies of the slides will be available on our website i think stacy's put a a link in the in the chat and shortly a copy of the webinar itself will be available too so just leaves me to thank scott claire and mark very much for your valuable insight and input and just to note that our next webinar will be on thursday the 23rd of june when my colleagues ed foyle and hugh wilkins will be looking at expert evidence you may have seen that there have been a number of decisions from the courts in the past few months not all of them particularly favorable to experts it has to be said and ed and hugh will be sort of telling us more about the lessons that could be learnt from the courts so thank you all very much for your questions thank you all very much for attending and we'll see you all in june