NEC Technical Guidance
NEC Clause 31 vs Clause 32 Programmes
A practical guide for contractors under NEC3 and NEC4 ECC
Under the NEC Engineering and Construction Contract, the programme performs a contractual function as well as a project-management function.
Clauses 31 and 32 govern the preparation, acceptance and revision of the programme. The resulting Accepted Programme is then used elsewhere within the contract, including in the assessment of compensation events affecting Completion and Key Dates.
The distinction between a Clause 31 programme and a Clause 32 revised programme is therefore more significant than simply “baseline versus update”.
At its simplest:
Clause 31 establishes the programme submitted for acceptance.
Clause 32 governs subsequent revisions to that programme as the works progress.
Both are important because the current Accepted Programme provides the contractual programme position against which subsequent change may be assessed.
Technical note: This guidance is based on the standard NEC3 and NEC4 Engineering and Construction Contract mechanisms. Individual contracts may amend these provisions through Contract Data, secondary Options or Z clauses.
In this guidance note
Terminology note: NEC4 ECC uses Client and Scope; NEC3 ECC uses Employer and Works Information. This note uses NEC4 terminology unless an edition-specific distinction is identified. References to planned Completion describe the programme forecast; Completion, Completion Date and Key Date retain their contractual meanings.
1. The Clause 31 programme
Under ECC clause 31.1, where no programme is identified in the Contract Data, the Contractor submits a first programme for acceptance within the period stated in the Contract Data.
Clause 31.2 then establishes the information which must be shown on programmes submitted for acceptance.
This includes the contractual dates and the Contractor’s plan for Providing the Works, including matters such as:
the starting date;
access dates;
Key Dates;
the Completion Date;
planned Completion;
the order and timing of the operations;
work by the Client and Others;
information and other matters required from the Client;
float;
time risk allowances;
and other information required by the contract.
The programme should therefore represent a realistic model of how the Contractor plans to Provide the Works rather than simply a contractual submission milestone.
2. Acceptance of the programme
Under clause 31.3, the Project Manager either accepts the programme or notifies the Contractor of the reasons for not accepting it.
The reasons for non-acceptance are limited by the contract. A programme should not therefore be rejected simply because the Project Manager would prefer the Contractor to use a different sequence or method.
Once accepted, the programme becomes the Accepted Programme for the purposes of the contract.
Under NEC4 ECC, the Accepted Programme is defined at clause 11.2(1) as the programme identified in the Contract Data or the latest programme accepted by the Project Manager.
The programme is accepted, not approved.
Acceptance does not transfer responsibility for the Contractor’s method, sequence or ability to achieve Completion to the Project Manager. Clause 14.1 preserves the Contractor’s responsibility notwithstanding the Project Manager’s acceptance.
3. What is a Clause 32 programme?
Clause 32 deals with revised programmes.
A revised programme remains subject to the programme information requirements in clause 31.2. Clause 32.1 requires additional information reflecting the progress of the works.
This includes:
actual progress achieved on each operation;
the effect of actual progress upon the timing of the remaining work;
how the Contractor plans to deal with delays;
and any other changes which the Contractor proposes to make to the Accepted Programme.
Clause 32.1 also requires the revised programme to show how the Contractor plans to correct notified Defects. NEC3 ECC additionally expressly requires the effects of implemented compensation events to be shown.
Clause 32.2 governs when revised programmes are submitted, including at the regular intervals stated in the Contract Data.
A Clause 32 submission should therefore represent the Contractor’s current realistic plan for completing the remaining work.
It is not merely the original programme with progress applied.
4. Planned Completion and the Completion Date
The distinction between Planned Completion and the Completion Date is fundamental to NEC programme administration.
A Clause 32 programme should show the Contractor’s current realistic forecast, including any movement in Planned Completion. Acceptance of that revised programme does not, however, determine responsibility for the movement, establish entitlement to additional time or automatically change the contractual Completion Date.
A revised programme may therefore be accepted while Planned Completion is later than the Completion Date. Any adjustment to the Completion Date must arise through a contractual mechanism which provides for that change.
Acceptance of a revised programme showing later Planned Completion does not itself move the Completion Date. Acceptance of the programme is not, by itself, acceptance of delay entitlement.
A movement in Planned Completion is a forecast change. A change to the Completion Date is a contractual change.
Planned Completion
What it is
The date shown in the programme at which the Contractor currently plans to achieve Completion.
Can it move?
Yes. It can change as the programme forecast changes.
Completion Date
What it is
The contractual date by which Completion is required.
Can it move?
Yes, but only through a contractual mechanism which provides for that change.
What can change Planned Completion?
Potential Client / Compensation Event-related drivers
Project Manager Instructions / Compensation Events
Technical Queries / Design Information
Third Party Interfaces / Access Constraints
Client-side Site Constraints
Change in Sequence arising from Client-side constraints
Contractor-side drivers
Reduced Productivity / Output
Plant Breakdown / Resource Availability
Labour Shortage / Absence
Ground or Site Conditions within Contractor risk
Contractor-led Change in Method or Sequence
These examples explain why Planned Completion may move. They do not, by themselves, determine contractual responsibility or entitlement to a change in the Completion Date.
What can change the Completion Date?
Unlike Planned Completion, the Completion Date does not move simply because the programme forecast changes. It changes only through a contractual mechanism which provides for that adjustment.
Implemented Compensation Events affecting Completion
Accepted acceleration proposals under clause 36
Other express contractual provisions or project-specific amendments which alter the Completion Date
For Compensation Event-driven change, the effect on Completion is assessed under clause 63 and incorporated into the contract through implementation of the Compensation Event.
NEC3 implementation: clause 65. NEC4 implementation: clause 66.
5. Clause 32 shows the forecast position — not necessarily contractual entitlement
A Clause 32 programme should show the Contractor’s current forecast.
If planned Completion moves from 1 September to 1 October, the programme should normally show that movement if it represents the Contractor’s current realistic plan.
However, that does not by itself establish:
why planned Completion moved;
who is contractually responsible;
whether a compensation event has delayed planned Completion;
or whether the Completion Date should change.
Clause 32 records the current programme forecast.
The compensation event process assesses the contractual effect of qualifying change.
This becomes particularly important where several unresolved compensation events are affecting the critical path.
The Clause 32 programme may correctly show later planned Completion while the Completion Date has not yet been adjusted to reflect those events.
6. Compensation events and the Accepted Programme
Where a compensation event alters the programme for the remaining work, clause 62.2 requires the quotation to include the relevant alterations to the Accepted Programme.
The assessment rules are contained within clause 63.
For NEC4 ECC, clause 63.1 establishes the dividing date, which determines the point between actual information and the forecast used to assess the event.
For time assessment, clause 63.5 requires the effect of the compensation event upon Completion and Key Dates to be determined using the Accepted Programme current at the dividing date.
For NEC3 ECC, the equivalent time-assessment provision is clause 63.3. NEC3 does not use the defined term ‘dividing date’ introduced in NEC4, but the equivalent assessment principle applies: the effect of the compensation event on planned Completion is assessed by reference to the relevant Accepted Programme position. NEC4 formalised the dividing-date mechanism to provide greater clarity over the point at which actual information ends and forecast assessment begins.
Under NEC4, the relevant programme is the Accepted Programme current at the dividing date, not simply the latest programme file available when the assessment is eventually carried out.
7. Why maintaining the Accepted Programme matters
A regularly accepted programme is not simply good project controls practice.
It has a direct contractual consequence.
If the latest Accepted Programme is materially behind the live works, later compensation event assessments become more difficult because the assessment must still start from the contractual programme position applicable at the relevant dividing date under NEC4, or the corresponding contractual reference point under NEC3.
What was the Accepted Programme current at the dividing date?
What progress had occurred since its data date?
What was the critical path?
What float existed?
What time risk allowances remained?
What other events had occurred before the dividing date?
What was the planned Completion position before the new event was modelled?
For a contractor, maintaining an up-to-date Accepted Programme should therefore be regarded as part of protecting the contractual programme position, not simply complying with a reporting requirement.
8. The dividing date and the programme for remaining work
NEC4 ECC clause 63.1 establishes the dividing date.
Clause 62.2 requires the compensation event quotation to deal with the effect of the event upon the programme for the remaining work.
Under NEC4, the Accepted Programme current at the dividing date provides the contractual programme basis for the assessment.
The programme for the remaining work then needs to reflect information which should properly be taken into account at the dividing date before the forecast effect of the compensation event is assessed.
The CE assessment is a model or mark-up derived from the Accepted Programme.
It is not itself a Clause 32 revision of the Accepted Programme.
Real-world practice
On projects with a large number of compensation events, mechanically rebuilding and re-progressing a separate programme for every dividing date can become disproportionately time-consuming and can obscure the effect being assessed.
In practice, many planners seek an agreed middle ground which retains the Accepted Programme as the contractual programme basis and models the additional or changed work against the applicable planned sequence, while ensuring that material facts known at the dividing date are properly reflected.
That approach should not be confused with ignoring the dividing date.
Where actual progress, Contractor delay, access restrictions, preceding compensation events or other known matters materially affect the prospective impact of the event, they need to be accounted for.
Any agreed practical modelling approach must remain consistent with the applicable assessment provisions; agreement on methodology does not displace the contract.
The objective is to isolate, as clearly as practicable, the effect due to the compensation event without creating unnecessary programme administration.
9. Implemented compensation events and the Completion Date
A forecast delay to planned Completion is not, by itself, a contractual change to the Completion Date.
For compensation-event-driven change, the impact is assessed under clause 63 and becomes fixed through implementation of the compensation event.
Under NEC4 ECC, implementation is dealt with under clause 66.
Under NEC3 ECC, the equivalent mechanism is clause 65.
There are also other contractual mechanisms capable of changing contractual dates, including acceleration under clause 36.
A movement in planned Completion does not itself change the Completion Date. The Completion Date changes only through a contractual mechanism which provides for that change.
10. Future work which has not yet been instructed
A Clause 32 programme should normally represent the Contractor’s current plan for the work which it is contractually required to undertake.
Potential future changes should therefore be treated carefully.
Including anticipated additional work in a Clause 32 programme before the relevant instruction has been given can blur the distinction between:
the existing Scope;
planned Completion for the current works;
future change;
and the subsequent compensation event assessment.
There may be good operational reasons to identify likely future work within planning information.
However, it should be clearly distinguished from instructed scope rather than incorporated into the contractual programme as though the change had already occurred.
Where the Project Manager gives an instruction changing the Scope which constitutes a compensation event, the Contractor is required to put that instruction into effect rather than waiting for the compensation event to be implemented. Clause 27.3 addresses compliance with instructions given in accordance with the contract; clause 61.1 provides for instructed change to be put into effect without waiting for the quotation process to be completed.
11. Common programme mistakes
1. Treating a later Planned Completion as Contractor delay
Movement in planned Completion is a forecast fact. Responsibility for that movement requires analysis.
2. Treating programme acceptance as a change to the Completion Date
Acceptance of a Clause 32 programme showing later planned Completion does not itself alter the Completion Date.
3. Allowing the Accepted Programme to become obsolete
This makes later compensation event assessment considerably harder.
4. Using the latest programme file rather than the correct Accepted Programme
The correct contractual reference is the Accepted Programme applicable to the assessment, not simply the newest programme available.
5. Confusing the CE programme assessment with a Clause 32 update
The CE assessment may model or mark up the Accepted Programme to establish the event’s effect. It does not itself revise the Accepted Programme under clause 32.
6. Including uninstructed future scope as though it were current work
Doing so can distort planned Completion and make subsequent compensation-event analysis less clear.
12. Clause 31 and Clause 32 — practical distinction
Establishes the programme submitted for acceptance
Governs revisions to the programme
Clause 31.2 defines required programme information
Clause 32.1 adds progress and current forecast information
Establishes planned Completion at that programme position
Updates planned Completion as the forecast changes
Can establish the Accepted Programme
An accepted revision becomes the new Accepted Programme
Provides the programme basis for future contract administration
Keeps that programme basis aligned with the developing project
Does not itself establish CE entitlement
Does not itself determine CE entitlement
13. Practical contractor approach
The current Accepted Programme
Which programme is contractually accepted and when was it accepted?
The live forecast
What does the current Clause 32 programme show for planned Completion, Key Dates and the critical path?
The contractual dates
What are the current Completion Date and Key Dates after implemented change?
The compensation event position
Which events have been notified, quoted, assessed and implemented?
The programme basis of each assessment
Which Accepted Programme and dividing date apply to each compensation event?
Keeping these positions separate makes it much easier to distinguish genuine Contractor delay from changes which have affected planned Completion but have not yet been fully reflected in the contractual dates.
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Clause 31 programme development
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Accepted Programme reviews
compensation event programme assessments
dividing-date analysis
critical-path review
Planned Completion forecasting
Key Date analysis
delay assessment
programme support for contractual and commercial recovery
Technical references
This guidance note is based principally on the standard NEC3 and NEC4 Engineering and Construction Contract mechanisms. Particular contracts may amend these provisions through Contract Data, secondary Options or Z clauses.
NEC3 / NEC4 ECC clause 11 — defined terms
Clause 30 — Completion
Clause 31 — programme
Clause 32 — revising the programme
Clause 36 — acceleration
Clause 62 — quotations for compensation events
Clause 63 — assessing compensation events
NEC3 clause 65 / NEC4 clause 66 — implementation
Relevant NEC Guidance Notes, Practice Notes and official NEC published guidance should also be considered when applying these provisions.