FIDIC Sub-Clause 8.3: The Eleven Things Your Programme Must Show

The Engineer has twenty one days to object to your initial programme. If nothing arrives in that window, Sub-Clause 8.3 deems a Notice of No-objection to have been given, and the document becomes the Programme with a capital P.

Two sentences later, the clause does something people rarely notice. The Contractor must proceed in accordance with the Programme. And the Employer’s Personnel are entitled to rely on it when planning their own activities.

So a programme nobody read, nobody approved and nobody checked can become the yardstick both parties are measured against, purely because a review period expired. Know that before you submit. Know exactly what the clause asked for in the first place, because a great many programmes submitted under FIDIC 2017 do not contain it.

If you are reviewing a programme against good practice rather than against a contract, start with construction schedule analysis and how to review a contractor’s programme. This article is about one clause, and what it obliges you to produce. For how the three main forms differ from each other, see the companion piece on what NEC4, FIDIC, JCT and the US forms each require of a programme.

What 8.3 actually asks for

Sub-Clause 8.3 carries the same number and substantially the same content in all three of the main 2017 books, so here is which is which. The Red Book is Conditions of Contract for Construction, for works the Employer designs. The Yellow Book is Conditions of Contract for Plant and Design-Build, for plant and for works the Contractor designs. The Silver Book is Conditions of Contract for EPC/Turnkey Projects, where the Contractor carries most of the risk and there is no Engineer at all.

The Contractor submits an initial programme within 28 days of receiving the Notice of Commencement. It must be prepared using the programming software named in the Specification, or in the Employer’s Requirements under the Yellow and Silver Books. If no software is named, it must be software acceptable to the Engineer.

A revised programme follows whenever any programme stops reflecting actual progress, or becomes inconsistent with the Contractor’s obligations. Both go to the Engineer in one paper copy, one electronic copy, and whatever further paper copies the Contract Data specifies.

The review windows are not the same length, which is easy to miss. The Engineer has 21 days to object to an initial programme and 14 days to object to a revised one. Miss either and a Notice of No-objection is deemed given.

Then comes the content list, running from (a) to (k). Eleven sub-paragraphs. Nine of them apply to the initial programme and to every revised one after it. Two describe things that can only exist once work has started, so they bite on revised programmes alone.

Nine, then, that an initial submission has to satisfy on day one.

(g) is the one that catches programmes

all activities (to the level of detail stated in the Specification), logically linked and showing the earliest and latest start and finish dates for each activity, the float (if any), and the critical path(s)

One sub-paragraph, four separate demands.

Logically linked. Every activity, not most of them. A programme carrying open ends does not satisfy (g), and open ends are the single most common structural defect in submitted programmes. They are also a DCMA 14-point failure under the first metric.

Earliest and latest start and finish dates. Both sets. A programme exported with early dates only is not compliant, however well built it is. This is a display and export decision as much as a planning one, and it is easy to fix before submission and awkward to argue about afterwards.

The float, if any. The parenthesis matters. It means show the float where float exists, not assert that none does. And it is total float that the clause is asking about, because that is what the scheduling tool calculates against the completion constraint.

The critical path or paths. Plural, deliberately. A programme with several parallel paths at or near zero float has several critical paths, and 8.3 asks for them to be identified rather than for one to be nominated. If you want the underlying mechanics, see the critical path method in construction.

There is a qualifier in (g) that most summaries drop. The level of detail is the one “stated in the Specification”, so the clause does not fix its own granularity. It tells you what properties the programme must have. It leaves the Employer to say how fine the activity breakdown should be, and if the Specification is silent on that, the argument is open.

(k) is the one people forget

The supporting report is a contract deliverable in its own right, not a covering note. Sub-paragraph (k) asks for five things: a description of the major stages of execution, a general description of the methods the Contractor intends to adopt, the Contractor’s reasonable estimate of the number of each class of personnel and each type of Equipment needed on Site for each major stage, identification of any significant changes from the previous programme where the submission is a revision, and the Contractor’s proposals to overcome the effects of any delay.

That last item is the interesting one. On every revised programme, FIDIC asks the Contractor to state in writing what it proposes to do about the delay. Programmes get resubmitted routinely with no such statement attached, and the omission is easier to point at later than any argument about logic quality.

The clock, and what silence does

The review periods are 21 days for the initial programme and 14 days for each revision. The Engineer may give a Notice stating the extent to which a programme does not comply, and can do so at any later time as well, at which point the Contractor has 14 days to resubmit.

Two consequences follow from that structure, and they cut in opposite directions.

For a Contractor, deemed no-objection is not a safe harbour. The clause also says that nothing in any programme or supporting report counts as, or relieves the Contractor from giving, a Notice required under the Contract. A programme showing a delay is not a delay notice. Neither is it an extension of time claim.

For an Employer or Engineer, letting the clock run is a decision, not an absence of one. The document that arrives by default is the one the Employer’s Personnel are then entitled to rely on.

What this looks like when it goes wrong

Obrascon Huarte Lain SA v Her Majesty’s Attorney General for Gibraltar [2014] EWHC 1028 (TCC) is the rare reported case that turns in part on programme submission under FIDIC. OHL, a Spanish contractor, was building a road and tunnel under the eastern end of Gibraltar airport’s runway under the FIDIC Yellow Book, 1999 first edition. Its tender, the lowest by some £8m, was £26,533,400.95.

Akenhead J found that OHL made four attempts at a compliant initial programme, in December 2008, January 2009, February 2009 and finally March 2009. Only the last of them was contractually compliant, and by the time it was, the judge found it was already out of date.

Programme submission failures were then among the nine matters particularised in the Engineer’s Clause 15.1 Notice to Correct. The judge concluded there were continuing grounds of non-compliance after the time for compliance had expired, and that they were serious enough to justify termination. The termination was upheld.

Read that against the clause it was decided under. The judgment sets the 1999 wording out in full: Sub-Clause 8.3 required “a detailed time programme” within 28 days of the Sub-Clause 8.1 notice, and “a revised programme whenever the previous programme is inconsistent with actual progress or with the Contractor’s obligations”. It took four attempts over four months to satisfy that. The 2017 clause replaces it with the eleven sub-paragraphs set out above.

The trapdoor in FIDIC’s own Guidance

Here is the part that surprises people who know 8.3 well.

FIDIC invites Employers to cut the list back. The Guidance for the Preparation of Particular Conditions, published in the same volume as the General Conditions, suggests that for less complex projects the Employer may consider simplifying the programme requirements by replacing sub-paragraphs (a) to (k) with the shorter (a) to (d) list from the 1999 first edition.

That wording appears in the Red, Yellow and Silver Books alike, each pointing at its own 1999 predecessor.

The practical effect is that a project running under FIDIC 2017 may legitimately owe a far lighter programme than the General Conditions imply, and the only way to know is to read the Particular Conditions. Quoting the eleven sub-paragraphs at a Contractor whose Particular Conditions replaced them with four is an avoidable way to lose an argument.

The same Guidance makes a second recommendation to act on at tender stage: name the programming software in the Employer’s Requirements, and draw it to tenderers’ attention in the Instructions to Tender. Where that is done, the software question never becomes a dispute.

One edition trap

The 2017 books were reprinted in 2022 with three issues of amendments incorporated (No.1 December 2018, No.2 June 2019, No.3 November 2022), and FIDIC treats the reprint as the definitive issue.

The amendment lands on the closing paragraph of 8.3, which is the one nobody quotes. It is the only change to the clause itself; the schedules carry one further 8.3 entry, but it edits the Guidance rather than the Conditions. Here it is, from the 2017 General Conditions:

If, at any time, the Engineer gives a Notice to the Contractor that the Programme fails (to the extent stated) to comply with the Contract or ceases to reflect actual progress or is otherwise inconsistent with the Contractor’s obligations, the Contractor shall within 14 days after receiving this Notice submit a revised programme to the Engineer in accordance with this Sub-Clause.

Two things in there matter before the amendment does. It is the Engineer’s continuing power to object after the fact, and it carries its own 14-day deadline for the replacement.

The amendment schedules put it in a line each, and the three are not quite the same. Red reads “On the first line of the last paragraph, replace ‘the Programme’ with ‘any programme’” (p.48). Yellow and Silver read “On the first and second lines of the last paragraph” (p.50 and p.46). So the swap happens once in Red and twice in Yellow and Silver, which have two occurrences of the defined term in that paragraph rather than one. The (a) to (k) list is untouched in all three.

Two words, and the reach changes. Read the quote again: the power bites on the Programme, the capital-P document that has cleared review and picked up a Notice of No-objection. Expressed that way it only engages after a programme has been through its window. Any programme removes that gate. It reaches a submission still sitting inside its review period, and a revised programme that never went through review at all.

That the swap is deliberate rather than tidying is visible in the sentence immediately before it, which already uses both terms side by side: “Nothing in any programme, the Programme or any supporting report shall be taken as, or relieve the Contractor of any obligation to give, a Notice under the Contract.” The drafters were distinguishing the two all along.

So the Engineer no longer has to wait for a programme to become the Programme before objecting to it. If you are working from a pre-2022 printing, that is the sentence to check.

Where the three books differ

The content list is close to identical across the three 2017 books, but not word for word, and the differences track who does the designing. The table above follows the Yellow Book. Yellow and Silver track each other closely; Red is the outlier, and three rows shift.

(d) Review periods. Yellow points at Sub-Clause 5.2.2 [Review by Engineer], Silver at the same sub-clause but headed Review by Employer, each then adding any other submissions specified in the Employer’s Requirements. Red has no such pointer and asks only for the Review periods for submissions stated in the Specification or required under the Conditions. That follows from the design split: under Yellow and Silver the Contractor designs, so Contractor’s Documents go for Review, and the programme has to show those windows. Under Red the Employer designs and there is nothing equivalent to point at.

(c) Order of the Works. Yellow and Silver run the sequence through to commissioning and trial operation and cite Clause 4.5 for nominated Subcontractors. Red stops at testing and cites Sub-Clause 5.2.

(b) Site access. Red and Yellow point at the dates in the Contract Data. Silver points at Sub-Clause 2.1 [Right of Access to the Site].

The books also part company on who reviews the programme, where its detail is specified, and whether the revision duty can be switched off.

Who reviews. The Engineer under the Red and Yellow Books. The Employer, directly, under Silver, which has no Engineer.

Where the detail is specified. The Red Book points to the Specification. Yellow and Silver point to the Employer’s Requirements. Same mechanism, different document to go and read.

Silver can switch off the revision duty. The Silver Book opens its revised-programme sentence with “Unless otherwise stated in the Particular Conditions”. Red and Yellow carry no such qualifier. Under Silver, the obligation to keep the programme current can be disapplied by the Particular Conditions, which is a materially different position from the other two books.

What to do with this

Check (g) before you submit, not after. Open ends, missing late dates and an unidentified critical path are all visible in the file, and all three are contract non-compliance rather than matters of style. If you want to know whether a programme has these problems, that question is answerable mechanically from the schedule itself, which is the ground a baseline schedule review covers.

Read the Particular Conditions first. FIDIC actively recommends an amendment to this clause. Working from the General Conditions alone means working from a document the parties may have deliberately replaced.

Diary the 21 and 14 day periods on both sides. They run whether or not anyone is paying attention, and the outcome of inattention is a binding programme.

Send the supporting report. It is sub-paragraph (k), not a courtesy, and on a revised programme it is where the Contractor’s proposals to overcome delay are supposed to live.

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