Ambiguities are the primary causes of disputes under construction contracts – Should the Engineer to the Contract be obliged to Accept and/or Reject a construction programme?
Date: 04 March 2021
Should the Engineer to the Contract be obliged to Accept and/or Reject a construction programme?
In continuation of my previous tips (click here to read the last tip), here is another example of ambiguities in the contract that lead to unnecessary disputes:
Major construction contracts and in particular the NZ General Conditions of Contract NZS3910:2003 and 2013 do not provide any mechanism or provisions for the Engineer to the Contract to accept or reject a construction programme/s. Even though we see some programmes being rejected mainly for the purposes of declining the forecasted completion date (if it is not in line with the Principal’s expectations) and by way of pressuring the contractor to finish by a specific date.
In my opinion, the key benefits of including an obligation on the Engineer to Accept or Reject a programme (any submitted programme) are:
• The latest accepted programme will be used by the contractor when preparing its EOT claim.
• It eliminates the unnecessary dispute as to which programme should be used when preparing EOT claim.
• It promotes the Engineer and all other stakeholders to carefully review the programme and buy-in to it or completely reject it on the basis of strong and legitimate reasons.
• This could facilitate a robust and constructive mechanism for all parties to work together to ensure that a realistic and achievable programme can be accomplished.
I strongly recommend that construction contracts adopt a mechanism for acceptance and rejection of contractors’ programmes.
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