We have been delayed by the Employer and this has delayed the programme. The Employer has stated that we should bring in a second subcontractor to mitigate the risk, we had programmed the impact of the delay which moved the Planned Completion. We do not wish to use a new subcontractor as this adds further risk to the programme. Is bringing in a second subcontractor beyond mitigating the risk? We have instructed our original subcontractor to increase their working hours to reduce the delay. When does mitigation become Acceleration?
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Presumably the Employer delay is a compensation event for which you will need to submit a quotation? In which case what you’re discussing with the Employer is covered by clause 62.1 where you can submit alternative quotations.
If not then it is up to you to decide how to mitigate the risk, the Employer cannot force you to accelerate. They can however give you an instruction which changes the Works Information and force you to use a second subcontractor however this instruction would be a compensation event entitling you to recover the additional cost and time.
People often overlook the power given to the PM under clause 27.3 - Contractor obeys an instruction, however two tests apply (1) it has to be in accordance with the contract and (2) it has to be given by the right person.
You will see how this read with clause 14.3 gives the PM the right to instruct changes to the Works Information but when read with clause 36.1 it does not give the PM the right to instruct acceleration.
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