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CAASA NEWSLETTER MARCH 2024   The motivation behind this monthly newsletter is to provide better and more frequent communication to CAASA members, and to solicit suggestions and responses to the contents. We need input from you to ensure that the content of this newsletter, our webinars and annual conference remain both topical and relevant. CONTENTS: The Construction Programme CAASA Update Training & Mentoring THE CONSTRUCTION PROGRAMME Way back in the Roman days an agreement to carry out construction was classified as a complete or entire contract. To give it its Latin title – Locatio Conductio Operis, a contract for services providing a result. The common law principles associated with this type of contract are:  Neither party is entitled to enforce the contract unless he himself has performed One party must complete his obligations before the other party is required to perform his obligations No entitlement to payment until the work is complete Warrants work is free from defects Liable for loss or damage from defects for life of building Contractor – not an employee, but independent Performs in his own manner and time Given the above it is no wonder that these have been changed and modified over time, morphing into the terms and conditions used in standard construction contracts today. In Roman times it was accepted that the Contractor would perform in his own manner and time,  since he was only paid once the work was completed. However, imagine if you were the successful contractor for the construction of the Colosseum. It was built between AD 72 and AD 80.  You would have financed the project for 8 years before being paid. Not only that but, had you still been alive today, you would be liable to continue rectifying defects under an indefinite  defect liability period..    Nowadays the Contractor can still work in his own manner and time, but subject to the approval of the Employer or the Employer’s Representative. The manner in which the Contractor intends carrying out the works and the time taken is set out in the construction programme or schedule. Although the programme is not part of the contract documentation (unless specifically recorded as such), it is  a vital tool in monitoring progress and evaluating claims when prepared and used correctly.    All 4 standard forms of contract, FIDIC, NEC, GCC and JBCC, to a greater or lesser extent, require the Contractor to provide a programme at the outset as to how he intends carrying out the works, to review the programme at regular intervals and to revise the programme when it is inconsistent with actual progress.    For the purposes of comparison I shall refer to the FIDIC 1999 Red edition, NEC3, GCC 2015 and JBCC PBA Edition 6.2 May 2018. Although there may be newer versions, these are still extensively used in the SA construction industry.     Time for submitting the construction programme FIDIC 1999 Cl 8.3 Submit detailed programme within 28 days of receiving notice to commence works under Sub-Clause 8.1 NEC 3 31.1 If a programme is not identified in the Contract Data then contractor submits first programme within time stated in the Contract Data GCC 2015 5.6.1 Prior to commencing the works as per Clause 5.3.1 JBCC 8.2 12.2.6 Within 15 working days of receipt of construction information     Who approves, time for approval FIDIC 1999 8.3 Engineer has 21 days from receipt to give notice stating the extent the programme does not comply with the contract. If no notice is given the contractor can proceed in accordance with the programme NEC 3 31.3 Within 2 weeks of submission of the programme the Project Manager either accepts the programme or notifies of his reasons for not accepting it GCC 2015 5.6.3 Within 7 days of submission of the initial or adjusted programme the Employer’s Agent shall approve the programme or instruct the contractor to amend it JBCC 8.2 Not specified       Level of Detail   FIDIC 1999 Clause 8.3 The order in which the contractor intends carrying out the works including each stage of design, Contractor’s Documents, procurement, manufacture of Plant, delivery to site, construction, erection and testing Each stage of work by nominated subcontractors   Sequence and timing of inspections and tests Supporting report – description of methodology, number of personnel, and each type of contractor’s equipment NEC 3 31.2 Starting date, access dates, Key dates and completion Date Planned completion The order and timing of the Contractor’s operations The order and timing of the work of the Employer and others The dates when the Contractor plans to meet each Condition stated for the Key Dates Provisions for float, time risk allowances, health & safety requirements Dates when the Contractor will need access to a part of the site, acceptances, plant and materials and other things provided by the Employer, information from others For each operation a method statement of how the work will be done identifying the principal equipment and other resources to be used Other information which the Works Information requires the Contractor to show GCC 2015 5.6.2 Commencement date, commencement, due completion date, planned completion date Sequence, timing and resources Dates for site accesses, possessions, approvals, instructions, tests and information required Float and time risk allowances Any other specific requirements Detailed cash flow forecast On updated programmes – actual progress and amounts paid JBCC 8.2 No specific requirements, sufficient detail to allow the PA to monitor the progress of the works     When is the programme revised/updated FIDIC 1999 Whenever the previous programme is inconsistent with actual progress or the Contractor’s obligations (8.3) If the Engineer gives notice that the programme fails to comply with the Contract or is inconsistent with actual progress (8.3) If actual progress is too slow to complete within the Time for Completion (8.6) NEC 3 32.2 Within the period for reply after the Project Manager has instructed to do so When the Contractor chooses to; and At no longer interval than the interval stated in the Contract Data GCC 2015 Reviewed on a monthly basis (5.6.4) When instructed by the Employer’s Agent since it no longer reflects that the actual progress will meet the Due Completion Date (5.6.4.1) When a specific probable future event or circumstance may increase the Contract Price or delay carrying out the Works (5.6.4.2) JBCC 8.2 Not specified  As is seen from the above requirements range from the highly prescriptive and detailed NEC3 programme to the rather loose JBCC programme, with FIDIC and the GCC in between. The requirements must be realistic. I have seen extracts from the NEC3 Contract Data which requires the programme to be updated every 2 weeks. By the time the parties have agreed the first 2 week update (they have 2 weeks to do so)  it is automatically obsolete. What further exacerbates the problem is the level of detail available at the time the contractor prepares his initial programme for approval. Very few projects  are fully designed at time of contract award. In most instances the design stays just ahead of construction. Perhaps the best the contractor can do in such an instance is programme the next 3 - 6 months with any degree of accuracy. Over and above this, we have delegated the production and revision of the programme to some expensive computer software which produces a myriad of activities and links which are, for the most part, of little value to the person actually carrying out the works.   Then we have the vexed question of which delay analysis methodology should be used  in the event of a claim for an extension of time. Prospective? Retrospective? Time impact analysis? As built vs as planned? Given the criticality of the programme in (1) showing exactly how, when, and with what the contractor intends carrying out the works, (2) monitoring progress on a regular basis, (3) revising the programme when it is no longer appropriate and (4) evaluating claims for extensions of time  we need a Programming Protocol to deal with all the above in the form of a best practice manual.   The Protocol would be used industry wide. The parties would agree which elements of the Protocol to apply depending on the type and detail of the project. The construction programme will revert to the vital tool that it is meant to be.   Wishful thinking? CAASA UPDATE In line with our decision to extend the reach of CAASA beyond our borders we have effected a name change. In future the abbreviation CAASA means the Construction Adjudication Association of Southern Africa. An association of ADR practitioners from countries which have statutory adjudication have formed ISAF, the International Statutory Adjudication Forum. Its principal aims are: Keep up to date with developments in statutory adjudication, identifying similarities and differences between current regimes; Consider [draft] a model law on statutory adjudication; Draw best practices from different statutory adjudication models, share experiences and solutions; Develop standards for training and accreditation of adjudicators.   The industry has long promoted the need for statutory adjudication, even if only limited to issues of non-payment.  A draft of the Model Law is available should any member wish to review it. ISAF intends publishing the final version in mid-2024. TRAINING & MENTORING At our next webinar to be held on Friday 5th April. Steven Kaplan, the immediate past president of SAICE,  will discuss the SAICE 2022 SA infrastructure Report Card. Again we encourage you as the members to provide topics for our webinars and even to present on any matter or issue which you believe relevant. Should you wish to attend, please register via the CAASA website. BEST PRACTIVE/ ADVISORY NOTES   As adjudicators we get confronted with challenges from time to time, be it a question on jurisdiction, points in limine, counter claims or an incalcitrant party. We welcome contributions from our members as to how you dealt with such a challenge, alternatively raising a question or query to which we will try and respond. In this manner we hope to develop a series of Best Practice/ Advisory Notes for our members to provide guidance in such situations.