Contract is ECC option B.
The Contractor did not execute an activity in accordance with the accepted Programme. For example. Activity A is due to start 01 February and needs to be done by 15 February. The Contractor took it upon himself to change the sequence of construction for whatever reason.
This resulted in the late start of activity A which started later than the planned finish date of 15 February. The Contractor then experienced a delay which he would not have experienced should he have been on schedule. The delay has an impact on the critical path changing the Completion Date.
The start and finish dates for specific activities are not defined dates in the Contract as such the Contractor can change the sequence of activities as long as he achieves his defined dates and the Programme is the Contractor’s Programme but surely the Employer can not be held accountable for such an event occurring. Does the risk of changing the sequence of the Program (planned activities) fall on the Contractor or the Employer if and when such an event occurs?
As you rightly say - it is the Contractor’s programme and they can change it as they see fit to improve efficieny/suit new ideas/overcome other issues etc etc. Clause 32.1 confirms they can do this, and there would be no reason not to accept a programme under 31.3 for this alone. Some activities on the programme will be on the critical path, and other activities will have (total) float. The “project” rather than the Contractor share the ownership of total float - so it is available to accommodate effects of CE’s as well as Contractor own delay.
Here you appear to be talking about two events on the critical path. The first delay appears to be down to the Contractor and this will move their planned Completion (but not Completion Date). Any overrun in relation to the Completion Date will be chargeable as delay damages assuming you have X7 in your contract. If they are then further delayed to this activity - well this will be assessed on its own merits. This second delay if it is a compensation event will further delay planned Completion and therefore move Completion Date by the same amount (not level with it as initial delay was the Contractor’s). If this further delay is not a compensation event, then the Contractor’s planned Completion will be moving further to the right in relation to Completion Date (that doesn’t move) ad they will be liable for further delay damages.
It would be impossible to dictate that generally activities are done on certain dates. You have asked for a lump sum price for the Works Information to be achieved by a certain date. How the Contractor gets there is broadly up to them. All you can do is incentivise them to finish on time with a positive way (e.g. X6 - bonus for early completion, X20 - Key performance indicators) or incentivise them not be late or there will be financial consequences (e.g. X7 - Delay Dameges, clause 25 Key Dates).
I think the real key to this issue centres around the obligations of 63.6 and 63.7 of the contract.
63.6 provides that assessments include risk allowance for contractor risks which have a significant chance of occurring. 63.7 then goes on to explain that all assessments (that is risk or otherwise) are based on the assumptions that the contractor reacts competently and promptly and that Defined Cost and time increases are reasonably incurred.
If you have a delay which is being generated or exacerbated by a contractor changing his sequence between Accepted Programmes then the 63.7 assumptions may well not be met and the assessment changed. In other words, it will be seen that the effect is not due to the compensation event but rather due to the actions of the contractor which do not meet the assumptions required.