There is a fully integrated team between the Employer & the Contractor. The Contract is Option “C” but pain/gain & target was removed, without LD’s and includes a fixed fee payable on milestone achievement. The Employer has instigated a continuous exercise of identifying and raising opportunities which are reviewed weekly. These largely seek to mitigate the Contractor’s risks and identify time and cost savings which will undoubtedly reduce programme duration and lead to an early completion. (Large Employer benefit.)
The Contractor is now trying to seek instruction to implement these opportunities although the Employer will not succumb to this as there is no change to the Works Information. The Contractor may simply stick to his original plan of work as it doesn’t benefit him to finish early, only on time as he has guaranteed recovery of his defined cost.
What contractual obligation can the Employer rely on that means the Contractor has to take part in these discussions and implement the opportunity?
Clause 10.1 appears to be the only recourse however this can be taken out of context or used too meaningfully thereby overriding its intent. The problem seems to be that if too great a meaning is attached to it or relied upon above its intent, then what is the real use of it?
The Employer could incentivise the Contractor by introducing “gain” in order to realise opportunity (pay the Contractor a percentage of the saving for e.g.) or accelerate, however the latter is not ideal.