Programme evidence in NEC claims and adjudication: what a planner adds
By Roman Bazelchuk | NEC Accredited Project Manager | APMG Project Planning and Control
Founder, NEC Planning Solutions Ltd
I have prepared the time side of claims on the contractor side. The first question in each was not the analysis. It was which programme the contract recognised at the date that mattered, and what that programme showed. This article is about that question, because the answer decides what the analysis built on it can prove.
Programme evidence in an NEC claim or adjudication is the record of which programme the contract recognised at each dividing date, what happened against it, and what each event did to planned Completion. A planner builds that record, analyses delay from the native files, tests the other side's analysis and explains the result plainly.
NEC time disputes are often argued by lawyers, but much of what decides them sits in the programme. Entitlement, notices and the meaning of the contract are legal questions. Which programme was accepted, what it said about the work affected and how far planned Completion moved are largely questions of fact, and the answers live in programme files and in the records that explain them.
Under the NEC4 Engineering and Construction Contract the programme is not background. Clause 63.5 assesses delay to the Completion Date against the Accepted Programme current at the dividing date, so a claim for time starts from a specific document on a specific date. What that document shows, and what it leaves out, shapes the argument from the start. In Premier Modular v Maidstone and Tunbridge Wells NHS Trust [2026] EWHC 1404 (TCC), it was common ground that the only Accepted Programme contained no obligation on the Trust to make permanent water available by any particular date. The way the adjudicator dealt with that gap, without putting it to the parties, is why the award was not enforced, as the adjudication section below explains.
This guide is for the lawyers, claims consultants and quantity surveyors who run those disputes, and for the commercial teams who brief them. It sets out what counts as programme evidence under NEC4, what a planner contributes to a claim, what changes inside an adjudication timetable and where the evidence tends to fail. How delay itself is analysed is covered in the NEC delay analysis and extension of time guide.
What counts as programme evidence under NEC4
Programme evidence is more than the programme. It is the chain of documents that shows which programme the contract recognised, when and why, and what happened against it. Clause 11.2(1) defines the Accepted Programme as the programme identified in the Contract Data, or the latest programme the Project Manager has accepted, and each acceptance supersedes the one before. On the contract's terms, a programme becomes the Accepted Programme when the Project Manager accepts it, or through clause 31.3: the Project Manager does not reply within two weeks of the submission, the Contractor notifies that failure, and a further week passes without a reply. Being issued, or being the version the site works to, is not acceptance under those terms.
Document | What it shows | Where the contract makes it matter |
The Accepted Programme current at each dividing date | The baseline delay is measured against | Clauses 11.2(1) and 63.5 |
Every programme submitted, with the Project Manager's reply | Whether and when each one was accepted, and the reasons for any refusal | Clauses 31.3 and 32 |
Compensation event notifications, quotations and assessments | Which events were raised, when, and how each was timed and priced | Clauses 61 to 64 |
Early warnings and the register | What was known, by whom and when | Clause 15 |
Progress records and site diaries | What happened, against what the programme said would | The Contractor's records |
The native programme files | Logic, durations, calendars, constraints and data dates | Behind every printed programme in this list |
Two documents in that chain tend to matter most once the time argument starts. The first is the list of programmes submitted with the Project Manager's replies, because it shows which programme was accepted on any given date. The second is the native file of each one, whether a Primavera P6 export or a Microsoft Project file. A PDF shows bars. The native file shows why the bars sit where they do: the logic that ties them, the calendars they run on, the constraints that hold them and the date progress was recorded. The Society of Construction Law's Delay and Disruption Protocol makes the same point when it asks for the programme in its native electronic form, not just as a PDF. An analysis built on PDFs inherits assumptions nobody can see.
What a planner adds to a claim
A planner's contribution to a claim is not advocacy. It is to establish what the programme record shows, in a form the legal team can rely on and the other side can test. In practice that is four pieces of work.
Rebuilding the Accepted Programme record
The first job is a register: every programme submitted, the date it went in, the Project Manager's reply, the reasons given and any acceptance that followed a failure to reply. From it, the Accepted Programme current at each dividing date can be stated with a document reference rather than asserted. Where the record has gaps, the register shows them early, while there is still time to decide how the claim deals with them. A claim that leans on a programme the Project Manager never accepted is exposed from the start, and the register is where that exposure is found.
Analysing delay from the native files
The analysis then follows the contract. Under clause 63.5, delay to the Completion Date is the length of time that, due to the compensation event, planned Completion is later than planned Completion as shown on the Accepted Programme current at the dividing date. That points to a prospective analysis on a specific programme: the event, modelled as a fragnet, impacted on the programme the contract recognised at that date. How the submission is assembled is set out in the guide to structuring a time impact assessment.
Where the record will not support that, because no programme was accepted or the accepted one cannot be relied on, the method has to fit what the record can bear. For analysis carried out long after the events, the Society of Construction Law's Delay and Disruption Protocol says the method should be chosen against criteria that include the conditions of contract, the nature, extent and quality of the records and the programme information available, the time available and the forum. The Protocol is guidance, and it gives way to the contract and the governing law.
Testing the other side's analysis
The same discipline works in reverse. An analysis served by the other side is tested first on its foundation: which programme it starts from, whether that programme was accepted at the date used, and whether the native file behaves as the analysis says it does. Open ends, hard constraints, out-of-sequence progress and calendars that do not match the working pattern can move a critical path without any event moving it. Finding them is planning work, and it gives the legal team specific points to put rather than a general objection.
That kind of testing can change the answer on time. In RGB P&C Ltd v Victory House General Partner Ltd [2019] EWHC 1188 (TCC), the responding party's expert attacked the referring party's adjusted baseline programme as a revision made after the fact. The adjudicator found the modifications to the baseline had not been adequately explained and lacked rigour, reinstated the original logic for the event in question, and the court enforced the decision.
Explaining it to people who are not planners
The last piece is the explanation. An adjudicator, a judge or a Project Manager has to follow the analysis without running the software. A short narrative, a few figures that set the programme the contract recognised against what happened, and a table tying each step to a document often do more than a long report. They are also harder to attack, because each statement points to its source.
What changes in an adjudication
Adjudication compresses all of this. The Housing Grants, Construction and Regeneration Act 1996 requires a construction contract to let a party give notice of adjudication at any time, to aim for the referral within seven days of the notice, and to have the adjudicator decide within 28 days of the referral. The adjudicator can extend that by up to 14 days with the referring party's consent, and the parties can agree a longer period once the dispute has been referred. Where a contract does not comply, the statutory Scheme for Construction Contracts applies. NEC4 uses Option W2 where the Act applies and Option W1 where it does not.
The timetable falls unevenly. The referring party chooses when to start, so its programme evidence can be ready before the notice goes in. The responding party typically has seven to 14 days, usually set by the adjudicator, to answer an analysis that may have taken months to prepare. Until the January 2023 amendments, NEC4 Option W2 gave the parties 14 days from the referral to provide further information. Since then the Adjudicator decides the procedure and timetable, so it is worth checking which print the contract uses. For both parties, the evidence has to be clear enough for someone who was not on the job to follow it quickly.
The adjudicator can take the initiative in ascertaining the facts and the law, but a decision that turns on a point neither party has argued should be put to the parties first. In Premier Modular, the Technology and Construction Court refused to enforce an award of more than £1.6 million. Both parties had proceeded on the basis that the only Accepted Programme was the contract programme. The adjudicator decided that a later revision of the contractor's programme had become an Accepted Programme, although the procedures had not been followed, and found a compensation event under clause 60.1(3) that neither party had relied on. The court held that deciding the dispute on those grounds without first putting them to the parties was a breach of natural justice. It did not decide who was right on the programme.
The practical point for anyone preparing a referral or a response is to put the programme argument squarely: which programme was the Accepted Programme at each dividing date, what it shows and why. Left implicit, it leaves the adjudicator to find an answer the parties did not argue, and an answer reached that way may not survive enforcement.
NEC Planning Solutions builds and tests the programme evidence behind NEC claims and adjudications, for contractors and for the firms advising them: the Accepted Programme register, delay analysis from the native files and review of the other side's analysis. Work starts with a fixed-fee Position Review, from £2,500 plus VAT, as part of its forensic delay analysis service.
Where programme evidence tends to fail
The programme was never accepted
A frequent failure sits upstream of any analysis. Programmes were issued and worked to, but never taken through acceptance, so the Accepted Programme is still an early one, or there is none at all, and every date added since sits outside the baseline the contract recognises. Where there is no Accepted Programme, the Contractor has not submitted a programme the contract requires, or the Project Manager has not accepted the latest one for a reason the contract states, clause 64.2 has the Project Manager assess the programme for the remaining work and use it in assessing compensation events. That assessment becomes part of the record the claim has to deal with. The guide to clause 64 assessments covers when that happens.
The records cannot place the event
An event has to be placed on the programme: which activities it touched, from when and for how long. Site diaries, progress returns and correspondence do that. Where they are thin, the analysis has to infer what the records should have shown, and an inference is easier to challenge than a record.
Later events leak into an earlier assessment
Clause 63.1 sets the dividing date. For an event that arises from the Project Manager or the Supervisor giving an instruction or notification, issuing a certificate or changing an earlier decision, it is the date of that communication. For other events it is the date the event was notified. Clause 63.5 measures delay against the Accepted Programme current at that date and, in its wording as amended in January 2019, takes into account any delay from the event already shown in that programme and events between its date and the dividing date. An analysis that carries progress or events from after the dividing date into an earlier assessment is answering a different question from the one clause 63.5 asks, and the error tends to surface when the analysis is tested.
Only printed programmes survive
Where the native files were not kept, the analysis has to be rebuilt from printed bars. That can be done with care, but the logic, calendars and constraints behind the bars are no longer visible, and a reconstruction is easier to challenge. Keeping the native file of every programme submitted costs very little during the job.
Working with the legal team
The division of labour holds up better when it is agreed at the start. The lawyers advise on what the contract means, whether notices were valid and what remedy follows. The planner establishes what the programme record shows and what the analysis produces, and says where the record runs out. A planner who drifts into entitlement weakens the analysis, because a tribunal can then treat all of it as argument. An analysis that starts from its conclusion fares no better. In Thomas Barnes & Sons plc v Blackburn with Darwen BC [2022] EWHC 2598 (TCC), the judge preferred the delay expert who had analysed the project from the contemporaneous documents over one who had formed a view of the causes of critical delay and then reverse-engineered it into a simple Gantt chart.
The role needs naming early as well. A planner can support the claims team, building and testing the analysis the party's case rests on. Independent expert evidence is a different role. Where a dispute reaches court, rule 35.3 of the Civil Procedure Rules makes it the expert's duty to help the court on matters within their expertise, and that duty overrides any obligation to the person instructing or paying them. Those rules govern court proceedings, not adjudication, but the weight given to any piece of evidence is a matter for the adjudicator's judgment, and an analysis that reads as independent is easier to rely on. Deciding which role the planner holds before the work starts saves unpicking it later.
PLANNER'S TAKEAWAY List every compensation event in the claim with its dividing date, then the Accepted Programme current on that date, by document reference. Where no programme can be named, or the only candidate was never accepted, flag the event before any analysis is built. Those are the events the other side is most likely to test first. |
The author's view
In a time dispute, lawyers and planners are often briefed in the wrong order. My view is that the programme record should be built before the claim is drafted, not after, because it decides which arguments are open. A claim drafted first and evidenced afterwards can end up defending a programme position it never needed to take.
The other habit I would change is treating the programme as an exhibit. In an NEC time dispute it is closer to the ground the case stands on. If the Accepted Programme at the dividing date is clear, much of the argument becomes arithmetic. If it is not, an analysis built on top can rarely replace it, and the honest course is to say so early and decide what the claim can still prove.
Programme evidence: frequently asked questions
What programme evidence is needed for an NEC adjudication?
The core is the Accepted Programme current at each dividing date the claim relies on, every programme submitted with the Project Manager's reply, the native programme files and the records that place each event on the programme: notifications, quotations, assessments, early warnings and progress records. Together they show which programme the contract recognised, what happened against it and what each event did to planned Completion.
Which programme is used to assess delay under NEC4?
Under clause 63.5 of the NEC4 ECC, delay to the Completion Date is assessed as the length of time that, due to the compensation event, planned Completion is later than planned Completion shown on the Accepted Programme current at the dividing date. The Accepted Programme is the one identified in the Contract Data or the latest one the Project Manager has accepted.
How long does an adjudicator have to decide a construction dispute?
The Housing Grants, Construction and Regeneration Act 1996 requires construction contracts to give the adjudicator 28 days from the referral to decide. The adjudicator can extend that by up to 14 days with the referring party's consent, and the parties can agree a longer period after the referral. The referral should follow within seven days of the notice of adjudication, so the evidence needs to be ready early.
Is a planner supporting a claim the same as a delay expert?
Not necessarily. A planner supporting the claims team builds and tests the analysis the party's case rests on. An independent expert gives evidence to the tribunal. In court, rule 35.3 of the Civil Procedure Rules makes the expert's duty to help the court override any obligation to whoever instructs or pays them. It is worth deciding which role applies before the work starts.
About the author
Roman Bazelchuk is the Founder of NEC Planning Solutions Ltd, a UK project planning and controls consultancy supporting contractors with NEC programme compliance, compensation event assessments and live project controls. He is an NEC Accredited Project Manager and holds the APMG Project Planning and Control qualification, with a BEng in Mechanical Engineering and postgraduate training in Planning and Control.
NEC Planning Solutions provides contract-aware planning support through a QA-governed delivery model, helping project teams keep programmes accepted, current and commercially useful from tender through to live delivery.
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