A reasonably detailed programme is an absolute “must” for any
sizeable sub-contract. How else can a
sub-contractor plan his resources, monitor his progress and identify potential
and actual delays? Many sub-contract
agreements and orders contain only vague information regarding the vital matter
of programme. In such a scenario, the
sub-contractor risks becoming a
“contractual prisoner”. Indeed, that is precisely how many main contractors
like to run the project. So let us
consider some basic steps to avoid those “programme problems”.
Firstly, under no circumstances enter into a sub-contract
arrangement merely on the basis of a loose form of words. Typical examples of
such clauses include “in accordance with main contractor’s directions”, “to
suit the progress of the main contractor”,
“in accordance with main contract programme” etc. This type of clause places an open ended
obligation upon the sub-contractor.
As an absolute minimum, the original order or agreement should
contain a “starting window” for
commencement, a period for giving of written notice to commence and a number of weeks for carrying out the works
on site. Always clarify whether these
are “working weeks” or “calendar weeks”.
If possible, try to agree a detailed sub-contract programme and
have it incorporated by specific reference into the original order or
agreement. If that proves impossible,
then endeavour to agree a sub-contract programme before you commence the works,
and make it clear that this will be your "baseline" for planning and
reporting purposes. The longer you take
in reaching agreement on a detailed sub-contract programme, the more likely it
is that your agreed programme will take on board delays and problems that did not exist at tender stage.
Try to obtain a copy of the main contractor’s overall project
programme. This will help you to understand more clearly where your works
interface with those of other trades and therefore to foresee and notify
possible problems in a proactive manner. It will also help you to monitor the
overall project progress and identify the implications upon your own
works. If the project falls into
significant delay, this information will assist you in demonstrating the true
causes (ie delay in access to work faces etc) and to obtain an extension of
time under the sub-contract.
If the main contractor declines to provide you with a copy of his
overall programme, then produce and
submit a list of vital “dependencies”
for such pre-conditions as “building watertight”, “statutory power available” etc. At least, you will be
building in some degree of protection as and when these dependencies fall
behind.
Confirm all programmes in writing, both those you issue and those
received from the main contractor. Make sure each programme is date stamped. Before you commence working to any new or
revised programme, establish the actual status. Is it intended that you now
work to this programme? If so, you need a written instruction before you
comply. Perhaps it is intended merely “for discussion”. Again, clarify the
precise position in writing.
When issued with a new or revised programme, many sub-contractors
merely scroll down until they get to the activities relating to their own
works. In fact, a prudent
sub-contractor should examine the overall programme and what it indicates
regarding the project as a whole. If
the roof and windows have slipped back several months and yet the overall completion date is still the same,
then further examination will no doubt show that the revised programme has been
“compressed”, and the various trades, together with the sub-contractor’s own
activities, will now show “stacked” working, culminating in a “grandstand
finish”. Very often, in such programmes, the original period of residual
commissioning activity will have disappeared completely. Such programmes – and they are very common
– almost always fail. The time to
address the problem is now, before you expend excessive resources and finances
in attempting to work to a revised programme that is doomed from the start.
If the main contractor issues a revised programme which shows the
overall completion date slipping back by
several weeks or months, it is wrong to assume that this automatically
bestows an extension of time upon the sub-contractor. In such a case, it is up to the sub-contractor to interrogate the
programme and to identify the reasons for the movement in his own activities,
and then to apply for a formal extension of time, specifying the relevant
events.
Whilst it is normal to monitor and report actual progress by
reference to the current revision of the programme, remember that a
sub-contractor’s "contractual performance" (i.e. in relation to
extension of time, damages etc) is measured against the original programme,
until such time as a formal extension of time is granted.
All too many sub-contractors allow themselves to be dragged along
without any clear indication as to the main contractor’s intentions. This is
the road to financial disaster. The streetwise sub-contractor will do his best
to ensure that at all times he has a meaningful, up to date programme against
which to plan and manage his works.
This article is based on the “Contract Law” column in Electrical
Times June 06.
John Russell
Contracts and
Training Consultant
Cheshire CW4 7DP
Tel: 07770 986444
Email: swsubbie@globalnet.co.uk
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