The Difference Between a Programme and a Promise

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WHAT HAPPENED  ·  ILLUSTRATIVE COMPOSITE

The contractor submitted a detailed Gantt chart at contract award showing every trade, every milestone, and a completion date of 24 October. The employer's team reviewed it, commented on it, and wrote back that they were content with it.

Three months later the programme had slipped four weeks. The employer's project manager escalated, citing the accepted programme as a contractual commitment the contractor had broken. The contractor's commercial manager replied that the programme was a management tool and the only binding date was the Completion Date.

Both were arguing from genuine positions. Neither had opened the contract. The answer turned entirely on which form they were working under — and under that form, the answer was not the one either of them assumed.

“A programme is a plan. Whether it is also a promise depends on words that were settled before anyone started drawing bars.”

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The question nobody asks at contract award

Programme status is one of the most consequential things in a construction contract and one of the least examined. Every construction project produces a programme. Very few project teams can say, without looking, what contractual status that programme has. The assumption is usually that acceptance by the employer's team converts it into a commitment. That assumption is wrong under two of the three main standard forms, and only partly right under the third.

The practical consequences are not academic. They determine whether a contractor can be criticised for departing from its own plan; whether an employer's late information becomes a breach measured against programme dates; whether payment can be withheld; and how cleanly an extension of time claim can later be argued. The three forms answer these questions so differently that carrying assumptions from one to another is a reliable way to lose an argument.

Scope and sources. The three cases that follow are constructed composites, written to show how each form behaves rather than to report particular jobs. The clause mechanics and consequences are real; the projects are not. On editions: this article addresses NEC4 ECC, the FIDIC 2017 Conditions of Contract for Construction (2nd edition) and JCT SBC/Q 2016. JCT published a 2024 suite in which the programme-related provisions were amended; those changes are outside the scope of what follows.

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Case one — NEC4 and the strongest programme sanction of the three

The scenario. A civils contractor mobilised on an NEC4 Option B project and, as commonly happens, treated the programme as a task for the planner to complete once site set-up was under way. No programme had been identified in Contract Data Part 2, and none was submitted for acceptance in the period stated.

The consequence. At the first assessment date the Project Manager applied clause 50.5 and retained one quarter of the Price for Work Done to Date. On a first assessment of ₦420 million, that is ₦105 million withheld — not as retention against defects, not as a set-off, but as a direct consequence of a missing document. NEC's own guidance stresses that this is a retention rather than a deduction — it is released once a compliant first programme is submitted. The damage is to cash flow, not to the final account, but on a project of that size it is damage enough.

The mechanics. Clause 50.5 is widely described as the only provision in the NEC4 ECC that lets the Project Manager withhold payment outright — a fair characterisation, though Disallowed Cost under clause 11.2(26) also reduces sums due, operating within the assessment itself rather than as a withholding. Either way the point stands: the drafters attached a payment consequence to the programme and to almost nothing else. Three features matter in practice. It applies only where no programme is identified in the Contract Data and the Contractor has not submitted a first programme showing the information the contract requires. It bites on submission, not acceptance — a programme that has been issued with the required content stops the retention even if the Project Manager disagrees with it. And it applies only to that first programme; once one is accepted, clause 50.5 cannot be used against a Contractor who fails to keep it updated under clause 32, however damaging that failure is commercially.

Acceptance, refusal and silence. Once submitted, a programme must be accepted or refused within two weeks, and there are only four valid grounds for refusal: the Contractor’s plans are not practicable; it does not show the information the contract requires; it does not represent the Contractor’s plans realistically; or it does not comply with the Scope. Refusal on any other ground is itself a compensation event. NEC4 also added a deeming provision absent from NEC3 — if the Project Manager does not respond within the two weeks, the Contractor may notify that failure, and if a further week passes without response the programme is treated as accepted.

The second loss. The Contractor lost the argument twice over. Having submitted no programme, it also lost control of compensation event assessment. Clause 64.1 requires the Project Manager to assess a compensation event where, at the time quotations are submitted, the Contractor has not submitted a programme or alterations to the programme which the contract requires. Clause 64.2 goes further: the Project Manager assesses the programme for the remaining work and uses that assessment in valuing the event. The Contractor was left arguing about time and money from a programme it had not written.

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Case two — FIDIC and the twenty-one days of silence

The scenario. A contractor on a FIDIC 2017 Red Book project submitted its initial programme twenty-six days after the commencement notice, inside the 28-day window. The programme showed dates by which employer-supplied drawings, approvals and site access were required. The Engineer, occupied with mobilisation issues, did not respond.

The mechanics. Under Sub-Clause 8.3 the Engineer Reviews the programme and may give Notice of the extent to which it does not comply with the Contract, ceases to reflect actual progress, or is otherwise inconsistent with the Contractor’s obligations. If no such Notice is given within 21 days of the initial programme — or 14 days of a revised one — the Engineer is deemed to have given a Notice of No-objection. That matters more than it appears, because the defined term “Programme” in the 2017 Conditions means a detailed time programme to which the Engineer has given, or is deemed to have given, a Notice of No-objection. The Engineer's silence did not merely fail to reject the document — it converted the document into the contractual Programme.

What the Programme then does. The deemed No-objection does more than settle a document's status. Sub-Clause 8.3 then requires the Contractor to proceed in accordance with the Programme, subject to its other obligations, and entitles the Employer's Personnel to rely on the Programme when planning their own activities. So the Engineer's silence produced a document the Contractor was obliged to follow and the Employer was entitled to plan around — which is a good deal more than a management tool.

The consequence. Two years later the Contractor advanced a claim founded on the employer's failure to meet the information dates shown on that Programme. The Employer's position was that it had never agreed those dates and that its obligation was to provide information within a reasonable time. Both arguments are respectable. But the Contractor was arguing from a document that carried a deemed No-objection, and the Employer was arguing that a document it had allowed to stand for two years did not mean what it appeared to mean.

The nuance that gets missed. No-objection is expressly not approval, and the Programme is not added to the priority list of Contract Documents. But it is a mistake to read that as meaning it does not bind: the Contractor must proceed in accordance with it, and Sub-Clause 8.7 supplies a sanction if progress falls behind it — the Engineer may instruct revised methods to expedite the work, which the Contractor must adopt at its own risk and cost, with any resulting additional cost to the Employer recoverable on top of Delay Damages. Engineers should nonetheless understand that letting the 21 days lapse invites the argument that, by not objecting, they impliedly accepted what the programme asserted. The cost of a reasoned notice within the window is a few hours. The cost of the argument that follows silence is measured in months.

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Case three — JCT and the programme that binds nobody

The scenario. A main contractor under JCT Standard Building Contract with Quantities 2016 fell six weeks behind its own master programme by month five. The employer's contract administrator wrote alleging failure to proceed in accordance with the programme and threatened to treat it as a breach.

The mechanics. Clause 2.9.1.2 requires the Contractor, as soon as possible after execution of the Contract and without charge, to give the Architect/Contract Administrator his master programme, identifying the critical paths where the Contract Particulars so require. Clause 2.9.3 then does the decisive work: nothing in the master programme, or in any amendment or revision of it, imposes any obligation beyond those imposed by the Contract Documents. And the master programme is not one of them — the Contract Documents are defined as the Contract Drawings, Contract Bills, the Agreement and the Conditions, together with the Employer's Requirements, Contractor's Proposals, CDP Analysis and BIM Protocol where applicable. The single occasion on which a revision must be issued is under clause 2.9.2: within 14 days of an extension of time decision under clause 2.28.1, or of agreement of a Pre-agreed Adjustment.

The consequence. The contract administrator's letter had no contractual foundation. The binding obligation was to complete by the Completion Date, and the Contractor had until the last moment of that day to do so. There is also no sanction under JCT for failing to provide a master programme at all, in contrast to the NEC position. Under JCT Design and Build 2016 the position is starker still: there is no master programme requirement whatsoever.

What employers should take from this. Employers who need interim progress to be enforceable cannot rely on the programme to achieve it. In Leander Construction Ltd v Mulalley & Co Ltd [2011] EWHC 3449 (TCC) — an English decision, persuasive rather than binding in Nigerian courts, and a sub-contract dispute at that — Coulson J declined to imply a term requiring the works to proceed regularly and diligently, holding the courts very reluctant to imply terms as to the timing or regularity of performance before the contractual completion date, particularly where such a date already exists. If progress against milestones matters commercially, it must be written into the Contract Documents as an express obligation, with a defined consequence attached. Readers working on the JCT 2024 forms should note that the programme-related provisions were revised in that edition and should check the position against their own contract.

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	NEC4 ECC	FIDIC 2017	JCT SBC/Q 2016
Governing clause	cl. 31, 32, 50.5	Sub-Clause 8.3	cl. 2.9.1.2
Contractual status	Accepted Programme is central to time and money	Becomes the Programme; Contractor must proceed in accordance with it	cl. 2.9.3 — adds no obligation; not a Contract Document
Employer response	Accept or give reasons within 2 weeks; only 4 valid grounds	21 days (initial) / 14 days (revised) to object	No response mechanism
Effect of silence	Deemed accepted — 2 weeks, then 1 week after Contractor’s notice	Deemed Notice of No-objection	No mechanism; silence has no effect
Sanction for failure	Retain 25% of PWDD (first programme only)	SC 8.7 — acceleration at Contractor’s cost, plus Delay Damages	None
Duty to update	cl. 32 — revised programme at stated intervals	Whenever it ceases to reflect actual progress	cl. 2.9.2 — within 14 days of an EOT decision only
Who bears the risk	Contractor, but tightly proceduralised	Shared, and shaped by conduct	Contractor, until the Completion Date

The pattern is worth noticing. Read across the table, and one pattern stands out. NEC4 and FIDIC both convert the other party's silence into acceptance – by different routes and on different clocks, but with the same practical effect. JCT does neither, because it gives the employer no response obligation to be silent about. NEC's own guidance goes further and describes acceptance as effectively a response of non-objection — the very language FIDIC uses — so the two forms are closer in substance than their drafting styles suggest. An administrator carrying NEC or FIDIC instincts onto a JCT job will look for a deadline that does not exist; one carrying JCT instincts onto NEC4 or FIDIC will let a decisive one pass unnoticed.

“The Completion Date is contractual under all three forms. Everything else about the programme — whether it binds, whether silence accepts it, whether money can be withheld over it — changes completely depending on which contract you signed.”

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The case against tighter programme obligations

The obvious objection. It does not follow that the NEC4 approach is simply better and the JCT approach simply lax. There is a respectable argument the other way, and anyone recommending a form should be able to meet it.

The argument. Proceduralising the programme turns it into a battleground. Once acceptance carries contractual weight, both sides staff the process defensively: the Contractor prices time risk allowances conservatively to protect float, the Project Manager scrutinises submissions for grounds to refuse, and disputes migrate from what actually happened on site to what a document said would happen. The JCT position — one binding date, no programme obligations attached to it — avoids that entirely, and on straightforward building work it can be the cheaper way to run a job.

And a sharper point. Deemed acceptance also carries a real cost for employers. Under NEC4 and FIDIC alike, an under-resourced client team that misses a response window has accepted something nobody consciously reviewed. That is a risk transfer effected by inattention rather than by negotiation, and it is not obviously a good feature of either form.

Where that leaves it. The honest position is that each form suits different work. Tight programme machinery earns its overhead on complex, change-heavy, time-critical projects where the parties need a shared and current picture. It is overhead without benefit on a simple contract with a fixed scope and a single completion date. What is never defensible is choosing a form for one reason and then administering it on the assumptions of another.

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What to do about it, on any form

First. Read the programme clause before mobilisation, not during the first dispute. It takes twenty minutes and determines the commercial architecture of the entire project. Identify three things: what must be submitted and by when; what the other party's response obligation is; and what happens if either side does nothing.

Second. Diarise the response windows on both sides. Under FIDIC the Engineer's 21 days is the single most consequential date in the early programme process, and it passes quietly. Under NEC4 the Contractor's first submission window carries a 25% payment consequence. Neither deadline announces itself.

Third. Maintain the programme to a standard that would survive forensic examination regardless of its contractual status. Logic links, resource loading, and a documented critical path are what make delay analysis possible later. A programme that is not binding can still be the most valuable evidential document on the project — and under JCT, where it binds nothing, it is often the only contemporaneous record of how the works were planned.

THE BROADER POINT

A programme becomes a promise only where the contract says so.

Under NEC4 it is a live contractual instrument with a payment sanction attached. Under FIDIC it acquires status through a deemed No-objection that most Engineers never consciously give. Under JCT it binds nobody and carries no sanction at all. The same Gantt chart, produced by the same planner, means three different things depending on which contract sits in the drawer. Anyone managing time or arguing about it should know which of the three they are in before the first progress meeting — not after the first dispute.

CLAUSE REFERENCES

NEC4 ECC cl. 11.2(1), 31.1, 31.2, 31.3 (two-week acceptance; four grounds for refusal; deemed acceptance), 32.1, 50.5 (one-quarter retention of the Price for Work Done to Date), 64.1 and 64.2.  ·  FIDIC 2017 Conditions of Contract for Construction (2nd ed) Sub-Clause 8.3 [Programme] and Sub-Clause 8.7 [Rate of Progress], with the Sub-Clause 1.1 definition of No-objection.  ·  JCT SBC/Q 2016 cl. 2.9.1.2 (master programme and critical paths), cl. 2.9.2 (revision within 14 days of an EOT decision under cl. 2.28.1 or a Pre-agreed Adjustment), cl. 2.9.3 (no obligation beyond the Contract Documents), and the cl. 1.1 definition of Contract Documents; JCT DB 2016 (no equivalent requirement). The JCT 2024 suite amends the programme provisions and is not covered here.  ·  Leander Construction Ltd v Mulalley & Co Ltd [2011] EWHC 3449 (TCC), Coulson J — an English sub-contract decision, persuasive rather than binding in Nigeria.