- Consistent with the current trend in international construction contracts, we now find increased programming obligations within the Second Edition of the FIDIC Red, Yellow and Silver books. FIDIC’s position remains unchanged in so far as the programme is not a contract document and is therefore not considered binding on the parties.
- The programme remains to be used as an indicative tool for the parties, suppliers and consultants for administering the progress of the works.
- The contrary position being, should the contract list the programme as a contract document, the programme would be binding on the parties and any departure from it would constitute a breach of contract, entitling the aggrieved party to compensation if they can prove they have incurred additional costs or delay.
- Nothing in any programme will relieve the Contractor from any obligations to give contractual notice under these new conditions, thus reducing the scope by the Contractor for reliance on programmes as notice of claims for delay. Where we do see changes are in the positive obligations imposed on the Engineer and the Contractor.
The Engineer is required to:
• Review the programme and say if it does not comply with the Contract. If the Engineer does not do this within 21 days, then the programme is deemed to be compliant.
• A notable new feature of the Second Edition is the deeming provisions found throughout the Contract. A new deeming provision for acceptance of any revised programme is found in the Conditions which requires the Engineer to give notice to the Contractor of the extent of the revised programme’s non-compliance with the Contract, inconsistency with actual progress or the Contractors obligations, within 14 days of receiving it, failing which it will become the Programme.
The Contractor is required to:
• Update the programme whenever it ceases to reflect the actual progress.
• Provide a Programme that contains logic links between activities, float and critical path(s). Contractors will need to consider the increased costs of complying with such requirements at tender stage.
• Provide proposals to overcome the effects of any delays to progress.
• An additional requirement to submit a separate testing programme.
“It takes 20 years to build a reputation and 5 minutes to ruin it. If you think about that, you’ll do things differently” Warrant Buffet, American business magnate, investor, philanthropist
So, let’s get with the programme, think hard about how FIDIC has increased the programme obligations to position a programme as a project management tool that creates transparency and certainty, and which ensures our reputations, build over time, are lasting.
This article is the second in a series of seven articles highlighting the main changes, the reasoning behind the changes and the effects thereof of the updated Red, Yellow and Silver Books.
The article does not constitute legal advice and has been drafted for information purposes only.
