This is somewhat academic, but what are the implications where the PM and Contractor remain at loggerheads on the solutions and actions required to avoid or mitigate a risk after attending a risk reduction meeting. The wording suggest consensus MUST be reached, but common sense dictates that the PM must instruct as he deems fit even if no consensus.
@Neil_Earnshaw any thoughts on this?
The answer will depend on what the issue is and who’s risk it is as to whether the PM needs to instruct anything or not If you could provide some more context I should be able to give a more detailed answer.
With some trepidation, since the question is indeed purely academic, but arose as a discussion point (heated!) at a braai (barbeque).
The assumption was that an instruction was required, the works information changed, the additional work to be done by the Contractor and the risk/cost squarely for the employer.The issue was whether the co-operation requirement of clause 16.3 required consensus between the Contractor and PM on what action was to be taken before the PM would be entitled to issue the instruction in terms of 16.4.
My initial reaction of it being in the discretion/purview of the PM has faded somewhat, as it makes the “co-operation” requirement somewhat toothless, and the co-operation aspect is indeed a cornerstone of the NEC suites. Academic perhaps, but if it ever happens the ramifications are extensive.
I posted a reply…
The answer is a firm NO! The PM does not need the Contractor to agree with the instruction, once it’s issued it triggers a compensation event which will compensate the Contractor cost and time for complying with it. Where consensus can’t be reached (which is surely what we try to do as maybe that’s what mutual trust and co-operation is all about!) we just need to follow the contract which at clause 14.3 gives the PM the right to give an instruction which changes the Works Information and at clause 27.3 obligates the Contractor to comply with that instruction.