Is a contractor bound by a programme that is approved by the architect/engineer?

Programmes are intended to be flexible documents, and not part of the contract documents. That is rightfully the case, because obligations in contracts are supposed to be fulfilled strictly. On the other hand, a programme would contain so many activities with different start and end dates that it is almost certain that it would have to be revised from time to time.

The fact that a programme is not part of the contract documents is made clear by Clause 3.6 of the PAM Form that says:

“The Works Programme shall not constitute part of the Contract, whether physically incorporated or not into the Contract Documents.”

It is the responsibility of the contractor to furnish the Architect with the proposed programme. If the works are delayed, the Architect may instruct the contractor to revise the programme and the contractor is obliged to do so (Clause 3.5 PAM Form).

If the programme is not part of the contract documents, then of what use is it?

Clause 3.7 PAM Form states that the programme is used as a basis for the Architect to monitor the progress of works, as well as for the Architect to assess any applications for extensions of time.

The same clause stipulates that notwithstanding the acceptance of any programme by the Architect, the contractor remains legally bound to fulfill all his obligations, duties and responsibilities under the contract.

In other words, the programme is by and large left to the discretion of the contractor (subject to approval by the Architect). A contractor may revise the programme from time to time, but any revision of the work programme (even if the revised work programme is accepted by the Architect) does not relieve the contractor of his responsibilities under the contract.

Kheng Hoe Advocates is a firm of construction lawyers focused on construction litigation and construction disputes. We can be reached at khenghoe@khenghoe.com.

MBAM conference on issues and remedies related to NSCs

Excited to be one of the speakers in this upcoming conference by MBAM. Honoured to be featured alongside fellow construction litigation and arbitration practitioners. The conference will also feature the current Construction Court judge as the keynote speaker. Do click on the link below and consider signing up.

 

http://mailchi.mp/8514caa8b05f/mbam-conference-on-issues-and-remedies-related-to-nominated-sub-contracting-arrangement-on-10-october-2017-at-holiday-villa-subang-jaya?e=38282c4aa8