NEC3 ECC Employer mitigating their own delay through Contractor's Programme

NEC3 ECC Main Option E

A compensation event (CE) instructed via a Project Managers Instruction (PMI) has impacted the critical path of the accepted programme at the time of the event by introducing additional works. The Project Manager (PM) has made his own assessment of the event and changed the critical path to make certain works be carried out at the same time and thus reducing the impact on Planned Completion by 80%. This has raised a number of queries between the parties in assessing this event from programme and contract compliance.

Although the Contractor has complied within timescales and submitted the quotation and impact programme, the PM still made his own assessment. However, what does not seem right is that the PM changed the Contractor’s programme in a way that mitigates his delay caused by this CE and by doing so indirectly dictating how the programme is delivered. Does this not constitute acceleration as opposed to mitigation?

It may be a moot point, but the PM is using knowledge currently known for some justifications behind their assessment (months after the event started to occur), as opposed to using knowledge at the time of the event.

In the absence of a PM’s Assumption, not acknowledging acceleration and making own assessment to the Employer’s benefit, it does not leave the Contractor with many options for consideration. Also, can the PM’s Assessment be used like an assumption if the works later cannot be completed as per their assessment?

Any comments on the above? some views would be helpful.