Rejected Baselines and Continuing Obligations

The Fundamental Misconception About Programme Approval 

A widespread misconception in construction project controls holds that a programme has no value until formally approved by the Engineer, Project Manager, or Employer. This belief leads contractors to cease programme updates, halt progress reporting, and delay submission of revised schedules when baseline programmes are rejected. The consequences are severe: programmes become outdated and cease to reflect actual progress, delay notifications go unsubmitted, and the foundation for Extension of Time (EOT) assessment deteriorates. 

However, across all major contract forms: FIDIC, NEC, JCT, PPC, AS and EPC no clause makes approval a condition precedent to the contractor's continuing duty to submit updates, report progress, or notify and demonstrate delay. The operative principle is consistent: progress must be reported against the last submitted programme unless and until a new one is accepted.  

Even if rejected, that programme remains the operative tool for progress measurement and prospective Time Impact Analysis (TIA). Courts and tribunals do not disregard a programme because it is marked 'rejected' or 'not approved': contemporaneous logic and substance prevail over administrative status. 

• FIDIC 1999/2017

  • Progress Reporting Obligation: Sub-Clause 4.21 requires monthly progress reports with comparison of actual and planned progress against the programme 

  • Effect of Rejection: Rejection does not relieve contractor of continuing duty to report progress against last submitted programme 

• NEC4/NEC4

  • Progress Reporting Obligation: Clause 32 mandates revised programmes at intervals stated in Contract Data, with reasons for revisions 

  • Effect of Rejection: Contractor must continue submitting revised programmes and progress updates regardless of approval status 

• JCT

  • Progress Reporting Obligation: Clause 2.9 requires Master Programme updates and progress information throughout the project 

  • Effect of Rejection: Non-approval does not suspend obligation to provide progress information against current programme 

• AS 2124

  • Progress Reporting Obligation: Contractor to provide and update a construction programme and report progress as required by the contract and Superintendent’s directions 

  • Effect of Rejection: Rejection does not remove the duty to keep reporting and updating against the latest submitted programme (and to comply with any direction to revise) 

• AS 4300

  • Progress Reporting Obligation: Contractor to provide a construction program and regularly update it to reflect actual progress and remaining work, and to provide progress information when required 

  • Effect of Rejection: Non-acceptance/rejection does not suspend ongoing reporting; progress is still measured and reported by reference to the most recently submitted programme 

• PPC/EPC

  • Progress Reporting Obligation: Contracts contain continuing obligations for progress measurement and forecasting based on last submitted schedule 

  • Effect of Rejection: Rejection does not terminate duty to measure and report progress using most recent submission 

Contractor's Continuing Duty Despite Rejected Baselines 

A rejected baseline does not relieve the contractor of three fundamental obligations: the duty to submit programme updates, the duty to report progress, and the duty to notify and demonstrate delay. These obligations exist independently of programme approval status and are embedded in the contractual framework of all major standard forms.  

Under NEC4 ECC, Clause 32 requires the contractor to submit revised programmes at the intervals stated in the Contract Data (typically every four weeks). Across all forms, the underlying principle is clear: the contractor's reporting obligations are continuous and not reliant on approval. 

FIDIC 1999 and 2017 Programme Requirements 

FIDIC Sub-Clause 8.3 (Programme) establishes detailed requirements for both initial and revised programme submissions. Under the 1999 Red Book, the contractor must submit a detailed programme shortly after commencement and submit revised programmes when the existing programme becomes inconsistent with actual progress or the contractor’s obligations. The Engineer’s review/consent mechanism is typically directed to contractual compliance rather than endorsement of the contractor’s sequencing methodology. 

The 2017 Red Book significantly expanded these requirements. Sub-Clause 8.3 now mandates that programmes be prepared using the programming software stated in the Employer's Requirements and include activities logically linked, with float (if any) and the critical path(s) identified. The programme must also include a supporting report describing major execution stages, methods of execution, and resource estimates. 

Despite enhanced prescription, the fundamental principle remains unchanged: the contractor must submit revised programmes when the current programme ceases to reflect actual progress or is otherwise inconsistent with the contractor's obligations. This revision obligation is mandatory and triggered by factual circumstances, not by approval status.

Progress Reporting Across Major Contract Forms 

Major construction contract forms e.g. FIDIC, NEC, JCT, PPC, and EPC rely on a single unifying principle: progress must be reported against the last submitted programme unless and until a new one is accepted. 

The NEC forms of contract treat the programme as a formal contractual document requiring regular updating by the contractor and timely acceptance by the project manager. Clause 32 mandates revised programme submissions whenever the current programme does not represent actual progress or the contractor's obligations, typically at four-week intervals. 

Programme Update Frequencies Across Contract Forms 

• FIDIC

  • Update Frequency: Monthly

  • Key Requirement: Sub-Clause 4.21: Progress reports with charts and comparisons 

• NEC

  • Update Frequency: 4-week intervals

  • Core Clause 32: Programme must represent actual progress 

• JCT

  • Update Frequency: as reasonably required (typically monthly)

  • Key Requirements: Clause 2.9: Information showing progress as requested 

• AS 2124

  • Update Frequency: As required under the contract (typically monthly) 

  • Key Requirement: Contractor to provide/update programs and progress information when required (often via Superintendent’s directions / contractual programming provisions) 

• AS 4300

  • Update Frequency: As required under the contract (typically monthly) 

  • Key Requirement: Contractor to provide/update programs and progress information when required (often via Superintendent’s directions / contractual programming provisions) 

• EPC

  • Update Frequency: 4-week intervals 

  • Key Requirement: Programme requirements mirror NEC4 ECC provisions 

• PPC

  • Update Frequency: As specified in contract

  • Key Requirement: Progress reporting against accepted programme baseline

Under JCT contracts, Clause 2.9 requires contractors to provide information reasonably required to show progress, and the master programme should be maintained to reflect actual progress and any extensions granted. In EPC contracts adapted from NEC-style forms, programme requirements commonly mirror the Engineering and Construction Contract with an emphasis on key delivery milestones and testing sequences. 

Across all forms, the common thread is mandatory progress measurement against the most recently submitted programme, regardless of whether formal approval has been granted. This ensures continuous project monitoring and provides the foundation for contemporaneous delay analysis. 

The SCL Protocol and Contemporaneous Critical Path Analysis 

The Society of Construction Law Delay and Disruption Protocol (SCL Protocol) provides authoritative guidance on delay analysis methodologies and confirms that analysis should be based on the best contemporaneous critical path model available. Core Principle 4 of the Second Edition (2017) emphasizes that parties should attempt, as far as possible, to deal with time impacts as the work proceeds and that EOT applications should be made and dealt with as close in time as possible to the delay event. 

The Protocol describes recognised delay analysis methods, including Time Impact Analysis (TIA) and time-slice/windows approaches, which rely on identifying the contemporaneous or actual critical path to determine delay. The SCL Protocol recommends that delay analysis be carried out on the most up to date critical path programme available. 

This is common sense: there is little value in attempting to demonstrate delay on an irrelevant or outdated programme that does not represent realistic planned intent. The Protocol also recognises that where a baseline programme does not exist or is inadequate, an analyst may need to reconstruct a baseline that reflects planned intent, using available contemporaneous records. 

The emphasis throughout is on substance over form. What matters is whether the programme provides a reliable contemporaneous record of intended sequencing and logic, not whether it bears an “approved” or “rejected” label. 

Obrascon v HMAG 2014: Contemporaneous Logic Over Administrative Labels 

The Technology and Construction Court decision in Obrascon Huarte Lain SA v Her Majesty's Attorney General for Gibraltar [2014] EWHC 1028 (TCC) established that contemporaneous logic and substance prevail over administrative labels or approval status when assessing delay. 

Justice Akenhead addressed the approach to FIDIC Sub-Clause 20.1 notice requirements and emphasised that such clauses should be construed reasonably, given their potentially serious consequences. 

Importantly, the judgment emphasised that delay analysis should focus on what was impacting progress on a month-by-month basis, analysing actual progress with reference to contemporaneous programmes used during performance. 

The Obrascon decisions reinforce that courts look to the substance and logic of contemporaneous planning records, not their administrative classification as 'approved,' 'commented,' or 'rejected'. 

Saga Cruises v Fincantieri 2018: Reconstructed Logic and Contractor Intent 

Saga Cruises BDF Ltd v Fincantieri SpA [2016] EWHC 1875 (Comm) addressed concurrent delay and the acceptance of reconstructed programme logic where it reasonably reflected the contractor's intention and sequencing. The dispute arose from a shipbuilding contract for cruise ship refurbishment, with the scheduled completion date of 2 March 2012. Completion was not achieved until 16 March 2012, and the owner claimed liquidated damages for the 14-day delay period. The contractor argued that concurrent employer delays, including defective flooring requiring repair between 2-10 March 2012 entitled it to an extension of time.  

Justice Sara Cockerill held that the contractor was obliged to pay liquidated damages for the entire delay period because the alleged concurrent delays had been “subsumed by the contractor's own culpable delays which had continued until completion”. The court emphasized “the importance in concurrency arguments of distinguishing between a delay which, had the contractor not been delayed would have caused delay, but because of an existing delay made no difference and those where further delay is actually caused by the event relied on”.  

Significantly, the judgment accepted reconstructed and adjusted programme logic where it reasonably reflected the contractor's intention and actual sequencing of works. This reinforces that evidential weight attaches to programmes that demonstrate realistic intent and logical sequencing, regardless of administrative status. 

Walter Lilly v Giles Mackay 2012: Contemporaneous Programmes Despite Imperfections 

Walter Lilly & Company Ltd v Mackay [2012] EWHC 1773 (TCC) provided landmark guidance on the use of contemporaneous programmes in delay analysis and confirmed that courts will accept imperfect programmes if they provide the best available evidence of intended sequencing. 

The judgment distinguished between prospective assessment of delay by the contract administrator before practical completion and retrospective analysis by courts or arbitrators after completion. 

Acceptance of Contemporaneous Programmes 

Critically, the judgment supports using contemporaneous programmes submitted during performance as the best available evidence when assessing what was delaying the works at any given time. 

Imperfect Programmes Carry Evidential Weight 

Despite acknowledged imperfections in the programmes, including incomplete logic links and evolving scope, courts may still accept them as the best available evidence of intended sequencing and the critical path during performance. Commentary on concurrency, global claims and loss and expense also recognises the practical importance of contemporaneous programming records in assessing delay and disruption issues. 

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