NEC ECC: Do you include mitigation within a CE assessment?

We have been awarded a compensation event, which prevented the works from being carried out in sequence and manner that was intended, however in order to keep the works progressing we moved on to another area of works. The guidance notes and the contract all imply that you impact the works at the time of the event to see the effect on the planned Completion. The movement being the entitlement to move Completion Date. During the period of preparing the quote, it is evident that we have managed to mitigate some of the impact, and would seek confirmation if this should be taken in to consideration?

clause 63.1 sets out the dividing point of actual and forecast cost to be used when preparing the quotation. If, as you say, you have carried out mitigation to reduce the delay then my suggestion is that you include the cost of the mitigation within the forecast and reflect the mitigation with the assessment of the effect on planned Completion (and hence change in Completion Date) ie include the mitigation cost and not the delay cost…

You are obliged to mitigate as a general point of law but you are not obliged to accelerate which is a completely different thing. If you could do things in a different order to accommodate the CE then that is what you are obliged to do and that should be reflected in the compensation event. However, don’t forget you are assessing that compensation event at the point in time the works were instructed which means in most part that would be a forecast as to what would have been reasonable to have allowed for this event. If you haven’t carried out the mitigation at that point you assess the impact against the last Accepted Programme at that point in time (taking into account compensation events and progress that had happened up until that point since the last Accepted (see NEC Practice Note 1).
Forecast mitigation should be included in the assessment of the CE, but actual mitigation that has happened since need not be.