Project Co must update the Bid Development Phase Program in accordance with the PSDR and the Project Deed. The updated Bid Development Phase Program will become the Development Phase Program.
The Development Phase Program does not form part of the Project Documents and Project Co is not required to comply with the Development Phase Program. The State recognises that requiring Project Co to continually comply with the Development Phase Program is an unduly onerous obligation. In most circumstances the State will not suffer any loss for a minor non-compliance.
Accordingly, the Development Phase Program is a tool that can be used by the State and Independent Reviewer to:
• track Project Co's progress;
• determine whether Project Co will achieve Commercial Acceptance by the Date for Commercial Acceptance in accordance with clause 26.4 of the PV Standard Project Deed; and
• determine whether Project Co has been delayed in achieving Acceptance by a Date for Acceptance by an Extension Event where Project Co claims an extension of time to a Date for Acceptance.
It is therefore important that the Development Phase Program is always accurate and up to date. Given that Project Co may need to change the Development Phase Program as unforeseen issues arise in respect of the Project that cause delay or acceleration, Project Co must ensure that the Development Phase Program accurately reflects the status and progress of the Development Activities. Project Co must notify the State and the Independent Reviewer upon becoming aware of any proposed or likely departure from the critical path in the Development Phase Program.
Further, Project Co must warrant that each update of the Development Phase Program accurately reflects the progress of the Works and the date by which Project Co will achieve Acceptance.
Clause 26.2(d)(ii) of the PV Standard Project Deeds clarifies that neither the State nor Independent Reviewer is required to use the Development Phase Program in assessing an extension of time Claim. This is because the Development Phase Program reflects the D&C Contractor's view as to progress and timing for Acceptance. This view may not be accurate and, determining whether it is, will often require detailed analysis. The State will only be obliged to extend the Date for Acceptance where there is an actual delay to Acceptance. The State will accordingly rely on a number of tools to determine the actual status and likely timing for completion of the Works.