The condition
The provision attaches to a weighing exercise: the work may be described by performance programme where, after weighing all circumstances, it is expedient to depart from the default and put the design out to competition alongside the construction, in order to establish the technically, economically and aesthetically best and most functionally apt solution to the building task. The measure is therefore the quality of the solution and not the state of one's own design.
Two elements matter here, and both are regularly passed over in practice. They concern the purpose of the choice and its justification.
| Element | What follows |
|---|---|
| The object is the best solution, not the least effort | the provision expressly names establishing the best solution as the purpose; a performance programme is no substitute for an unfinished design |
| It presupposes a recorded weighing exercise | the choice must be justified, and the justification belongs on the procurement file |
In practice the form is nonetheless frequently chosen because design has not advanced far enough for a bill of quantities. That is the economically riskiest application, because it does not remove cost uncertainty but relocates it.
What the performance programme must contain
The content is described in the provision and comprises three elements. The third is optional and at the same time the most effective.
| Element | Content |
|---|---|
| A description of the building task | from it candidates must be able to identify all conditions and circumstances governing their design work and their tender |
| A statement of the purpose of the completed work | together with the technical, economic, aesthetic and functional requirements placed on it |
| Where appropriate a model bill of quantities | with quantities wholly or partly left open |
The third element deserves attention. A model bill with open quantities is a middle route: it prescribes the structure while leaving measurement to the tenderer. For later comparability it is the most effective instrument available in this form of tender.
What the tenderer must supply
The requirements on the tender are correspondingly higher. What is required is a tender that, besides executing the work, comprises three further components.
- the design together with a full explanation
- a presentation of how construction will proceed
- a detailed and appropriately structured description of the work, where applicable with quantities and prices for parts of it
For the tenderer that means substantial effort before any award. This is why the form narrows the field: only firms with in-house design capacity can take part.
Why cost control becomes harder
For cost work the performance programme is the most demanding form, for three reasons. They act together and cannot be offset individually.
| Reason | Effect on cost control |
|---|---|
| Tenders are not directly comparable | each tenderer submits their own design; a price comparison by item is impossible because the items differ |
| Quantities come from the tenderer | the control function of one's own measurement falls away; an understated quantity only emerges during construction |
| Comparison against the cost calculation breaks off | the cost calculation is structured by element, the tender follows the tenderer's design; without a reconciliation the comparison stops at the total |
The third point concerns a basic service: cost control by comparison against the cost calculation is owed within the preparation of procurement. The system is covered in the article on target-actual comparison.
The consequence for the designer's fee
One point links both subjects and is overlooked in practice. It concerns the designer's remuneration rather than the contractor's.
Preparing a specification by performance programme on the basis of the detailed object description is in principle an additional service under the fee ordinance. Where tendering actually proceeds by performance programme, however, it becomes a basic service in whole or in part, and the corresponding basic services of that work phase fall away instead.
The choice of tendering route therefore changes the designer's scope. It belongs settled before preparation of procurement begins and named in the contract. The article on work phases 6 and 7 covers the system.
When the form makes sense
Despite the risks, some situations make the performance programme the better choice. Three are typical, and the third is the most robust.
| Situation | Why the form then works |
|---|---|
| Where the solution capacity sits with the market | for system-built forms, technically driven installations or manufacturer-dependent methods, a functional approach yields better solutions than a prescription |
| Where the work cannot be defined clearly and exhaustively before award | that is simultaneously a ground for departing from the default route |
| Where construction risk sits better with the contractor | whoever supplies the design bears a different risk for its fitness for purpose than a firm executing someone else's |
The third point is the strongest reason and the least often stated. The performance programme shifts responsibility for the solution and not merely the work on it.
What must be regulated
Four points prevent the commonest disputes under this form. All four belong in the tender documents rather than in a later agreement.
- Word the requirements precisely. What is described functionally must be measurable, or compliance becomes contentious.
- Provide a model bill of quantities. It creates comparability without pre-empting the design.
- Publish the award criteria in advance. Where price is not the sole determinant, the criteria and their weighting belong in the tender documents.
- Clarify the interface with your own design. Who checks the tenderer's design, and who bears responsibility for its compliance with the requirements.
Related articles
This article reflects the position of the standards at the date of checking and serves professional orientation. It does not constitute legal advice and does not replace assessment of the individual case.