When is a subcontractor bound by dates or sequencing in the main contractor's programme?
Main contractors expect subcontractors to fit their programme, and blame late subcontractors for their own overruns. Whether a subcontractor is actually bound to the main contractor's programme, and what that duty carries with it, is settled by the subcontract and by the cases.
As a rule no: unless the subcontract expressly requires it, a subcontractor need not execute its work to the dates and sequence required by the main contractor's programme, and where it is required to do so the main contractor comes under a corresponding duty to provide the access to enable it, so the obligation can work against the main contractor
As a rule, no. Most standard forms require a contractor to produce a programme, but few require the contractor, or a subcontractor, to follow it. GC/Works/1 is the exception, requiring the contractor to proceed in accordance with the programme. Absent an express term, a subcontractor is not obliged to work to the main contractor's programme: in Pigott Foundations Ltd v Shepherd Construction Ltd a DOM/1 subcontractor required only to complete in a reasonable manner having regard to progress of works was held not bound to the main contractor's programme. The obligation, where it exists, is two-edged. If a subcontractor must work to the main contractor's programme, the main contractor must provide the access to enable it; and where the main contractor does its best to release areas, a stopped subcontractor may not recover its overrun cost, as in Kitsons Sheet Metal Ltd v Matthew Hall and Martin Grant and Co Ltd v Sir Lindsay Parkinson and Co Ltd.
| General rule | No express obligation to follow the programme in most forms |
| GC/Works/1 | The exception; the contractor must proceed in accordance with the programme |
| Pigott | A DOM/1 subcontractor was not bound to the main contractor's programme |
| Two-edged | An obligation to follow it carries a duty on the main contractor to give access |
| Kitsons, Martin Grant | A stopped subcontractor may not recover its overrun where access was done reasonably |
The problem
A main contractor produces a programme for the whole job and expects its subcontractors to fit their work into it. A subcontractor that is held late may be blamed for the main contractor's own overrun. Is a subcontractor actually bound to execute its work to the sequence and dates in the main contractor's programme, or only to get on with reasonable diligence? The point matters to both sides, because an obligation to follow the programme cuts in both directions.
The general position
Most standard forms require the contractor to produce a programme, and a failure to produce one is a breach. It is unusual, though, for a contract to say expressly that the contractor must follow the programme. GC/Works/1 is an exception: condition 34(1) requires the contractor to work diligently under the programme or comply with instructed by the project manager. The programme is rarely a contract document, and for good reason, because making it one would require work to be carried out strictly to it, which can be exacting and often impossible.
The subcontractor and the programme
A subcontractor stands in a similar position to the main contractor.
Pigott was engaged under a domestic subcontract for the design and construction of bored piles for a 14-storey office block, under a DOM/1 subcontract with Shepherd as main contractor. Clause 11.1 required Pigott to complete its work in a reasonable manner having regard to progress of works. The court held that this did not require the subcontractor to execute its work to the sequence and dates in the main contractor's programme. On the DOM/1 terms considered in Pigott, the subcontractor was not required to observe the dates and sequence in the main contractor's programme.
The two-edged sword of access
An obligation to follow the main contractor's programme can impose corresponding obligations on the main contractor. If a subcontractor must work to suit that programme, the main contractor comes under a matching duty to give the subcontractor the access it needs to do so, and main contractors often struggle to deliver that.
The subcontract required Kitsons to commence when instructed, proceed with due diligence and complete within periods stated in the sixth schedule, but the schedule set no time periods and did not refer to the programme; instead the work was to follow the instructions of site management to allow handover by 18 March 1985. The court held that the parties must have expected delays and interference between the activities of different trades, so adherence to the programme was unlikely. Provided the main contractor did its best to make areas available, it was not in breach even where Kitsons were brought to a complete stop, and Kitsons could not recover the additional cost of the overrun.
On similar facts, the court held that there was no entitlement for the subcontractor to claim extra cost arising from slippage in the main contract programme.
Practical steps
Read the subcontract. Unless it expressly requires the subcontractor to work to the main contractor's programme, it does not have to.
An obligation only to proceed in a reasonable manner having regard to progress of works is not an obligation to follow the main contractor's programme.
As a main contractor, think before imposing a duty to follow your programme; it carries a matching duty on you to provide access to make it possible.
As a subcontractor, do not assume you can recover the cost of an overrun caused by lack of access where the main contractor did its best to release the work areas.
Set out clear time periods and access arrangements in the subcontract, so that each side knows what it owes the other.
Authorities
| Authority | Citation | What it decides |
|---|---|---|
| Pigott Foundations Ltd v Shepherd Construction Ltd | (1993) 67 BLR 48 | Under a DOM/1 subcontract requiring completion in a reasonable manner having regard to progress of works, the subcontractor was not required to execute its work to the dates and sequence required by the main contractor's programme |
| Kitsons Sheet Metal Ltd v Matthew Hall Mechanical and Electrical Engineers Ltd | (1989) 47 BLR 82 | Where the subcontract set no programme periods and the main contractor did its best to make areas available, it was not in breach even where the subcontractor was stopped, and the subcontractor could not recover its overrun cost |
| Martin Grant and Co Ltd v Sir Lindsay Parkinson and Co Ltd | (1984) 29 BLR 31 | The subcontractor had no entitlement to claim extra cost for delays to the main contract programme |