Part 1

By Ir. Harbans Singh K.S., B.E (Mech) Spore, P.E., C.Eng,

LLB(Hons) London, CLP, DipICArb.

n all the frequently encountered methods of contract

procurement employed locally in the engineering and
construction industry, the contractor is responsible
for both the method and the sequencing of working.
To enable these goals to be achieved, the contractor must
programme the works accordingly; hence the generation
of a document labelled Work Programme, Programme
of Works or simply Programme. Its importance for the
proper management of the construction process cannot
be denied. In parallel, its use as a tool for the efficient
administration of the contract by the employer also cannot
be underestimated. Therefore, it is not surprising that its
preparation and submission has grown from a mere
administrative step to a serious contractual obligation on
the part of the contractor in contemporary practice; breach
of which obligation has assumed consequences of a very
grave nature 1.

In view of its immense importance in every such

endeavour, this paper has been penned with an aim of
exposing practitioners to the pertinent contractual as well
as the attendant procedural requirements vis--vis the
topic of work programme. Though constrained by the
length of the article permitted by the publisher, the author
nevertheless will attempt to address the main areas of
concern so as to adequately cover the topic in hand.
DEFINITION AND MEANING
In an An Engineering Contract Dictionary 2, the term
programme has been defined as:

EXPRESS CONTRACT PROVISIONS

Express contract provisions governing various aspects
of the contractors obligations pertaining to the Work
Programme are included in a number of local forms of
conditions of contract, namely:

Sub-clauses 3.4 to 3.6: PAM 98 Form (With Quantities

and Without Quantities) Editions;

Clause 5 4: CIDB Standard Form of Contract For

Building Works (2000 Edition); and

Clause 7 5: IEM Conditions of Contract For Mechanical

and Electrical Works (IEM.ME 1/94 Form)

The other common forms e.g. JKR 203 and 203A,

IEM.CE 1/89, etc. have no such express stipulations.
However, in contracts employing such forms, the
requirements pertaining to the Work Programme are
normally included in the Preliminaries Section of the
Bills of Quantities, etc.; a practice which is being replaced
by the use of express contract provisions. 6
FORM
There are no hard and fast rules governing the form
the work programme must be in. The eventual form to be
adopted for such a programme is usually dictated by three
main factors, such as:

The size and complexity of the works under the

contract;

1.
2.
3.

As reflected in the various express contractual provisions.

By Vincent Powell-Smith at P 500.
In The Malaysian Standard Form of Building Contract [2nd
Edn.] at P 81.
Entitled Work Programme and Method Statement.
Termed Programme.
See also Glenlion Construction Ltd. v The Guinness Trust
(1987) 39 BLR 89 for the effect of such non-contractual
provisions.

A schedule or chart showing stages in a scheme of

work. Reference in Conditions of Contract to programme
inevitably means the contractors programme being his
sequence for execution of the works .
Sundra Rajoo 3 sums up the meaning of the term Work
Programme as:
A graphic representation of the detailed sequence of
work activities and mobilisation of resources towards that
sequence of activities. It represents the contractors plan
of proceeding for the work ..

4.
5.
6.

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engineering & law

Work Programme A Contractual Perspective

engineering & law

The extent to which the details e.g. the activities,

sequence of activities, etc. are to be shown; and
Any express stipulations in the contract pertaining
to the form to be adopted.

The contractor shall submit to the Engineer for his

approval the Programme which shall include the following:
(a) the sequence and timing in which the contractor
proposes to carry out the works (including the
design, manufacture, delivery to site, erection,
testing and commissioning)

In practice, the common forms of such programmes

that are encountered include:

Simple Bar charts;

(b) the times when submission and approval of the
contractors drawings are required

Gannt charts;

Critical Path Analysis (CPA);

Project Evaluation Review Techniques (PERT);

(c) the times by which the contractor requires the

Employer:

Project Network charts;

Project Activity Flow charts;

Multi-Level Project Scheduling (MLPS);

Work Breakdown Structure (WBS);

Programmes involving particular software e.g.

Primivera, Microsoft Project, etc.

(i) to furnish any drawings or information;

(ii) to provide access to site;
(iii) to have completed any necessary civil
engineering or building work (including
foundations for the plant), to be provided by
the Employer; and

Depending upon the particular project involved in a

specific case, a typical application may necessitate a
number of the above forms for both overall and detailed
programming.

(iv) to have obtained any way leaves, consents and

approvals necessary for the construction of the
works, for which the Employer is responsible
Reviewing the said provisions, the following summary
can be drawn:

If possible, the preferable content of the required work

programme should be expressly stipulated; a classic
example being clause 7.1 IEM.ME 1/94 Form;

Notwithstanding the existence of any express provision,

the contractor is obliged to prepare and submit as
detailed a programme as possible to meet the broad
purposes of the document i.e. to identify the activities,
sequence of activities and the critical milestones vis-vis the works under the contract. A master
programme should be prepared for the overall works
and separate individual programmes for each section,
phase, block or system, as appropriate;

Each programme should detail out the following as a

minimum:

CONTENT
As for the form, there are currently no guidelines
available locally spelling out the expected contents of
the work programme. Much is left to the contractor to
decide based on his experience, bearing in mind the
purpose of the programme in the context of the particular
circumstances of the contract works being undertaken.
Where the conditions of contract expressly stipulate the
specific contents required, these should be adhered to.
Examples of such express provisions include the
following:

Clause 7.1: IEM.ME 1/94 Form 8 stipulates:

Clause 5.1(a): CIDB 2000 Edition Form which reads:

. the contractor shall, not later than Date of
Commencement submit for the approval of the
Superintending officer:

(a) The principal activities;

(a) a works programme related to the Time for

Completion, clearly identifying the sequence, logic
and critical path in which he proposes to carry out
the works, including the various work activities and
milestones to be achieved .

(c) The timing of such activities;

(b) The sequence of such activities;

7.
8.

Also called the Critical Path Method (CPM)

I.E.M. Conditions of Contract For Mechanical and
Electrical Works.

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(e) Important milestones vis--vis submittals by the

contractor necessary to achieve completion by the
date of completion e.g.
Times of submission of shop/fabrication
drawings, etc.
ii) Times of submission of method statements
iii) Times of submission of samples, etc.; and

management) is to set down the timing of the contractors

requirements for site access, information, drawings and
nominations, for the guidance of the contract
administrator, and it is for the reasonableness of these
requirements, in relation to the date for completion that
the contract administrator checks and approves the
programme submitted .

i)

(f) Important milestones for the employer/contract

administrator to meet to enable the contractor to
achieve completion by the date of completion
stipulated in the contract e.g.
i)

Times by which the various submittals e.g.

drawings, samples, etc. need to be approved;

ii) Times by which works under P.C. Sums 10 need

to be awarded;
iii) Times by which possession and/or access to
the whole and/or various sections of the site
need to be given to the contractor;

In Hudsons Building and Engineering Contracts 13,

such purposes have been lucidly explained to the following
effect:
The purpose of contractual requirements for a
programme to be supplied by the contractor is often
misunderstood, and is primarily to enable its owner or
his Architect/Engineer to plan their own arrangements
for giving possession, supplying information and working
drawings, and coordinating the work of other contractors
or nominated sub-contractors, and only secondarily for
use in connection with the contractors extension of time
applications or monetary claims, or to impose additional
time obligations on it.
Hence, analysing the above explanations, the following
principal purposes can be identified:

iv) Times by which the employer needs to furnish

the contractor with necessary approvals 11,
further details and/or information under the
contract;
v)

As for the contractor, the main purposes in preparing

the work programme are:
(a) For his own construction management purposes;
(b) To meet his obligations under the contract
pertaining to the submission of such document; 14

Times by which the employer needs to obtain

and provide the contractor with any necessary
easements, way leaves, etc. in connection with
the works; and

(c) To monitor his work progress under the contract; 15

(d) To plan his cash flow;

vi) Miscellaneous milestones to be satisfied by the

employer so as not to hinder the contractor in
carrying out and/or completing the works.

(e) To justify any application for an extension of time

to the contract due to disruption of his progress;
and

In approaching this subject, one should be mindful of

the fact that the actual content of a particular work
programme is also influenced by the method of contract
procurement adopted. Hence, it is therefore inevitable
that the content of a Package Deal type of work
programme will materially differ from that under the
traditional contracting route.

PURPOSE OF SUBMISSION
The purposes of submission of the work programme
are explained in various manners by different
authorities/practitioners. Robinson and Lavers 12 have
aptly summed up these purposes in the following words:
The primary use and importance of work programme
(other than in the contractors own construction

(f) To use as a basis of claiming any monetary

compensation e.g. loss and/or expense due to
disruption of his progress, etc.

9.
10.
11.
12.

Inclusive of the relevant float time.

I.e. involving Nominated Sub-contractors.
Including consents, decisions, etc.
See Construction Law in Singapore and Malaysia [2nd Edn.]
at P 298.
13. [11th Edn. 1995] by Prof. Wallace at P 1129 as reproduced
in The Malaysian Standard Form of Building Contract [2nd
Edn.] by Sundra Rajoo at P 81.
14. Especially if there are express stipulations to this effect e.g.
clause 5.1 CIDB Form, etc.
15. And for the progress of his sub-contractors, suppliers, etc.

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(d) The identification of the critical activities 9 and the

critical path;

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(h) To assist in the preparation of the facilities

management plan; and

On the employers side, the primary purposes for the

submission of the work programme are to enable the
employer/contract administrator to plan their own
arrangements for:
(a) Giving necessary site possession and/or access to
the contractor to enable him to commence and
proceed with the works under the contract;

(i) Such other purposes necessary and incidental to

the completion of works, taking over and eventual
use and operation by the employer.

(b) Preparing and supplying information, working

drawings details, etc. necessary for the contractor
to proceed with the works;
(c) Giving necessary approvals, consents and decisions
in time to enable works to proceed as planned;
(d) Obtaining relevant easements, way leaves, etc. in
connection with the works for the purposes of the
contract; and
(e) Appointing Nominated Sub-Contractors, third party
contractors, etc. in time so as not to disrupt the
contractors progress.

In addition to the above primary purposes, the contract

administrator requires the work programme for use in
connection with such collateral purposes as:
(a) To aid the cost planner in gauging the contractors
cash profile for the project and preparing cash
projections to ensure that the employers obligations
under the contract as to payment are met;
(b) To use as a basis of monitoring the contractors
progress;
(c) In deciding whether there is a basis of determining
the contractors employment on the ground, where
provided for, that the contractor has defaulted in
not proceeding regularly and diligently with the
works; 16
(d) To evaluate the contractors application for
extension of time due to disruption of progress of
works;
(e) To evaluate the contractors application for
monetary claims in connection with disruption of
progress e.g. claims for extended preliminaries, loss
and/or expense, etc.;
(f) For general contract administration and
coordination of the works of all contractors, subcontractors and third parties on site;
(g) To aid in the preparation of the employers handing
over and migration plan;

Just as for the content, the purposes of the work

programme are influenced by the method of contract
procurement adopted in a particular case. As an
example, the main purposes of a work programme are
of a lesser importance in contracts undertaken along
the package deal route 17 because unlike traditional
general contracts, the contract administrator for a
package deal type of contract is not obliged to supply
details, information, etc. nor undertake the necessary
coordination. Hence, one should be mindful of such
matters in dealing with the instant subject.

TIME FOR SUBMISSION

Unless otherwise stipulated, the contractor is obliged
to submit the work programme within a reasonable period
after the award of the contract; at the latest being the
date of the site possession meeting. Much as it is desired
to solicit such a programme as early as possible, the
prevailing local practice reflects the general lackadaisical
attitude of most contractors to this matter, whereby one
is not likely to sight a proper programme being produced
and submitted until well after site possession has been
given.
In instances where express provisions have been
included in the conditions of contract governing the issue
of work programme, they generally stipulate the time
frame for the submission of such documents. Examples
include:

Sub-clause 3.4 of the PAM 98 Form (With Quantities

and Without Quantities) Editions states:
Within fourteen (14) days upon the issue of the letter
of acceptance, the contractor without charge to the
Employer, shall provide the Architect with two copies
of the work programme for the execution of the works

CIDB Form (2000) Edition in Sub-clause 5.1 stipulates:

Following the Letter of Award, and without prejudice
to any requirement to do so earlier in his tender or the
other contract documents, the contractor shall, not later
than the Date of Commencement, submit for the
approval by the Superintending Officer
(a) a works programme

16. See Clause 25.1(ii) PAM 98 Form With Quantities Edition

for example.
17. See The ICE Design and Construct Contract: A
Commentary by B. Eggleston at P 125.

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34

Following the letter of award 18 i.e. within a reasonable

period of its issue;

Within a definite period of the issue of the letter of

award e.g. fourteen (14) days in the PAM 98 Form,
etc.;

Not later than the date of commencement of the works

under the contract e.g. Clause 51 CIDB Form, etc.;

Within any other period stipulated in the contractors

tender offer and/or other documents constituting the
contract e.g. Clause 51 CIDB Form, etc.

FAILURE TO SUBMIT PROGRAMME

The consequences of the failure to submit the
programme are dictated generally by the formula as set
out hereunder:

Where there are no express contractual provisions vis-vis the submissions of the programme, there can
accordingly be no sanctions and the contractor cannot
be stopped from commencing with the works under
the contract. However, he may compromise his right
to receive necessary approvals, consents, information,
etc. in time;

In the event the conditions of contract contain express

provisions on the requirement for the submission of
the programme, the contractors failure to do so would
be a breach of contract on his part. The contractual
remedies available to the employer for such default
may include:
a) Any remedy expressly spelt out in the conditions
of contract itself e.g. sub-clause 5.5 CIDB Form
(2000 Edition).
b) Ordering suspension of works i.e. if there is an
express clause pertaining to suspension and refusing
the contractors costs on the ground that the
programme was necessary for the proper execution
or for the safety of the works 19
c) Activating the determination procedure on the
ground that the contractor was persistently in
breach of his obligations under the contract 20, or
where the default persists following written
instructions from the contract administrator, on the
ground that the contractor has persistently refused
or failed to comply with a written instruction from
the contract administrator 21

STATUS OF THE PROGRAMME

Notwithstanding attempts being made to include
express provisions circumscribing various facets of the
contractors work programme, this document remains
primarily a tool for the contractor to plan his method and
sequencing of his works under the contract. This is echoed
in the following extract from Engineering Law and the
ICE Contracts: 22
The programme, for example, is not contractual in
the same sense as the specification, since neither the
contractor nor the employer is bound by it. The
programme is what it is a document indicating the
intention of the contractor at the time he furnishes it as
to how he intends to programme his works.
A similar sentiment is reflected by Roger Knowles in
his lucid explanation for the said approach to the following
effect:
The programme is usually intended to be a flexible
document. If the contractor gets behind, say due to the
insolvency of a sub-contractor, he would normally expect
to revise the programme in an attempt to make up for lost
time. For this reason, programmes are rarely listed as
contract documents. It is the requirement of most contracts
that obligations provided for in contract documents must
be carried out to the letter. With a programme containing
some hundred or more activities, compliance for start and
finish date for each without the possibility of revision
would be impractical. For this reason, programmes should
not be contract documents 23
The general legal position vis--vis the status of the
work programme can be summed up as follows:

If the programme is called for at the tendering stage

and is accepted by the employer, it becomes
contractually binding: Yorkshire Water Authority v
Sir Alfred McAlpine and Son (Northern) Ltd. 24

However, if the programme comes into existence after

the contract has been made, it is not a contract
document 25 unless the parties expressly agree to
otherwise.

18. Synonymous with the Letter of Acceptance.

19. See The ICE Design and Construct Contract: A Commentary
by B. Eggleston at P 128.
20. Ibid i.e. if such an express clause is in the contract.
21. E.g. clause 25.1(vi) PAM 98 Form (With Quantities) Edn.
22. (4th Edn. 1991) by M.W. Abrahamson at P 79
23. In 100 Contractual Problems and Their Solutions at P 70
24. [1986] 32 BLR 114.
25. See The ICE Design and Construct Contract: A
Commentary by B. Eggleston at P 126.

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Hence, it can be noted that the usual time frames

expressly stipulated in such forms fix the time for
submission according to the formulae as set out here
below:

engineering & law

5. The appointment of nominated subcontractors,26 third party contractors, etc.;

To dispel any doubts as to the status of the programme,

most standard forms of conditions of contract include
specially drafted clauses to this effect; common examples
being:

Sub-clause 3.5: Work Programme Not Part or

Incorporated into Contract Documents - PAM 98 Form
(With Quantities and Without Quantities) Editions.
Sub-Clause 5.2: Work Programme and Method
Statement Not Part of Contract Document - CIDB
Standard Form of Contract For Building Works
(2000 Edition)

6. The undertaking of specific obligations for the

purposes of the contract e.g. delivery of employer
furnished materials, etc.
In carrying out such assessments, the contract
administrator must be wary of the effect of the approval
of such programme and the contractual duties being
imposed on the contract administrator/employer thereof.
II. The Response
Following the above-mentioned review, the contract
administrator must respond within a reasonable
period 27 of receipt of the work programme by either:

Where the contract is silent as to the status of such

document e.g. IEM.ME 1/94 Form, resort must be made to
the general legal position as stipulated hereabove.
THE APPROVAL PROCESS
I. Assessment
Upon receipt of the work programme from the
contractor, the contract administrator has to carry
out the necessary checks or assessments to ensure
that the document submitted:

Complies with the governing express contract

stipulations;

The form is acceptable;

The contents reflect the contractual requirements

and they are sufficient and complete as to the
identification of the work activities, the sequencing
of the work activities, the relevant milestones, etc.;

Approving/Accepting the programme in writing,

or

Rejecting/Disapproving the programme in

writing, giving reasons

Withholding approval by requesting for further

information

If the contract administrator fails to respond

within either the stipulated period or within a
reasonable period (i.e. if none is stipulated) from
the date of receipt of the contractors submission,
then the work programme is deemed to have been
approved or accepted by the contract
administrator 28.
III. Approval
Synonymous with Acceptance, approval of the
work programme invokes the following effects:

The critical activities and the critical path have been

identified;

The programming of the works is not optimistic

but realistic;

The target dates/milestones set for the contract

administrator/employer as to matters such as listed
hereunder are reasonable:
1. The supply of drawings, information, details, etc.
2. The provision of site possession and/or access;
3. The giving of necessary approvals, consents,
decisions, etc.
4. The obtaining of the relevant easements, way
leaves, etc.

It signifies the contract administrators

agreement with the proposed order or sequence
of working in the work programme 29
The approved work programme may be taken
into account in any dispute for determining a
reasonable order or sequence for supplying any
outstanding information or details to the
contractor, or for giving possession of the site
by the employer 30

26. Including the ordering of the works under

Provisional Sums.
27. Unless expressly stipulated e.g. 14 days per clause 5.3 CIDB
Form (2000 Edn.), etc.
28. See Sub-clause 5.3(c) CIDB Form (2000 Edn.) and also Mackay
v Dick (1880-81) 6 App. Case 251.
29. See Sub-clause 5.3(a) CIDB Form (2000 Edn.).
30. See Sub-clause 5.3(b) CIDB Form (2000 Edn.).

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In relation to the time for completion; or

As to a reasonable time for giving or receiving

further information; or

For giving possession of the site, etc.

For the sake of clarity and to avoid possible

misconstruction, it may be prudent to include such
a provision in the contract so that the parties are
aware from the very beginning as to the likely
consequences of such an eventuality.
V. Withholding Approval
A third option available to the contract
administrator following an assessment of the work
programme is to withhold approval. This may be
necessitated by factors such as:

32

As to the mode of communicating the approval,

unless it is stipulated expressly to the contrary, the
accepted practice is to have this in writing.
IV. Rejection/Disapproval
In the event the contract administrator finds
the submission unacceptable, he may reject it
together with the reasons for the rejection and may
require the contractor to:

make the necessary amendments; and

resubmit the programme for re-consideration.

Lack of clarity of the contents;

Lack of sufficiency of information supplied;

Disagreement with the reasonableness of the

milestones set vis--vis the employers and/or
contractors obligations; and

Miscellaneous matters having a material impact

on the programme 34

Hence, the contract administrator may withhold

approval and request further information from the
contractor; such information comprising
principally: 35

This approach is reaffirmed in Clause 5.4 of the

CIDB Form (2000 Edn.) which states:

Further clarification;

In the event the works programme.is

disapproved by the Superintending Officer, then the
contractor shall make such further submissions as
may be required until approval is obtained

Substantiation;

Satisfaction on reasonableness having regard to

the contractors obligations; and

It is pertinent to note that neither a time frame

for resubmission nor the number of resubmissions
is stipulated; merely that the contractor must
resubmit until approval is obtained.

Miscellaneous matters having a material impact

on the programme.

Such requests for information should be in

writing, and the contractor should be given a
reasonable time to respond. It is important to bear
in mind the reasons behind such an exercise; an
abuse of the process for trivial reasons in an attempt
to procrastinate or delay the approval process may
constitute mal-administration of the contract with
dire consequences. BEM

The next question that begs an answer is as to

the effect of the failure to secure approval of the
programme on the commencement of work.
Although most standard conditions of contracts fail
to expressly address this matter, a useful guidance
is afforded by Clause 5.5 33 of the CIDB Form (2000
Edn.) in the following manner:
The Contractor may commence execution of
the works pending approval of the work
programme.by the Superintending Officer.
However, the grounds of any approval may be taken
into account in determining any dispute as to a
reasonable sequence or order for giving possession
of the site, or for supplying supplementary drawings
or details or information

31.
32.
33.
34.

E.g. Clause 7.3 IEM.ME 1/94 Form.

See Sub-clause 5.3(b) CIDB Form (2000 Edn.).
Entitled Start of Work Without Approval.
E.g. issues to do with Float Time, Optimistic
Programme, etc.
35. See The ICE Design and Construct Contract:
A Commentary by B. Eggleston at P 129.

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This is normally subject to the express caveat

to the effect that the approval of the programme
by the contract administrator shall not relieve the
contractor or the employer from any obligation
under the contract 31 e.g.