NEC ECC: Is the Contractor required to mitigate programme delay

Involved in an NEC3 Option C contract. The PM is considering instructing a change to a date to an area of site clearance – the change will delay an aspect of these works. By changing the date in the last Accepted Programme the Contractor’s Planned Completion moves out and critical path delay results. However upon further examination of the Accepted Programme the delay results from a questionable dependency between two tasks – upon closer scrutiny it is arguable whether the linkage between the tasks is required and its removal would reduce the delay duration. If the instruction were given is the Contractor required in his quotation and specifically the time delay revised programme to mitigate any delay (potentially by breaking the unnecessary linkage between tasks) or can he simply change the date in the Accepted Programme, point to the duration of delay and expect to be paid?

Assuming that the matter is a compensation event, then the programme assessment would be made in accordance with clauses 62.2 and 63.3. One of the tests for any ‘CE programme’ is whether any delay to the Completion date is ‘due to the compensation event’ or occurs for any other reason.

If the CE had not been instructed then any ‘erroneous links’ in the programme logic would affect the planned Completion date, thereby reducing terminal float. Unless this falls into one of the bullet points under clause 31 then the programme would most likely still be accepted.

The NEC Practice Note 1 Oct 2017 relating to NEC4 deals with this mater, the principle of which equally applies to NEC3, by recognising the impact of;

‘delays to planned completions resulting from other causes of delay occurring prior to the dividing date and which are not CEs’

‘Delay’ does not have to be due to physical work on Site and can occur due to ‘questionable dependency between two tasks’. The above Practice Note goes on to further state;

‘It may be that the assessment of delay using the Accepted Programme identifies an obvious error which does not show a genuine forecast effect of the CE on planned completions. In this situation the Project Manager and Contractor should resolve the problem in the logic of the Accepted Programme.’

If you don’t have a copy, the Practice Note is free to download from the NEC website.

Andrews advise is good here. There is more of a legal obligation to mitigate rather than a specific contract clause to do so. You should be trying to minimise the effects of a CE without increasing your own risk or cost. Therefore if you can mitigate some of the effects then you should - and it would certainly be working in accordance with clause 10.1.

In the same way if you can prove that there was a missing link the other way, you could argue the same case if you became aware of it before the CE came along and (try to) justify that within the CE quotation.