A simple way to look at this topic is simply to look at the practicalities of it.
What preceding activities have to be executed by the subcontractor in order to make the late provision of water a delay event?
What is the supply of water needed for?
If this is a water pipeline, and water is needed to test it, then you first have to build the pipeline. In that scenario, the provision of water 5 months earlier is not required.
The subcontractor should show all the dates of items to be provided by the contractor on his programme.
In this case, he has corrected his mistake to properly construct the CL32 programme.
The onus is on the Contractor to correct the Scope if it is incorrect.
It would appear that the Contractor is trying to take advantage of the Accepted programme to avoid having to correctly amend the scope.
Bearing in mind that NEC requires CE’s to be assessed prospectively, from the dividing date, using the Accepted Programme, the Contractor would likely be acting correctly by proceeding as follows:
- Issue and instruction to amend the scope
- Notify a CE and ask for a quote
- Allow the Subcontractor to submit a quote using the Accepted Programme
- Accept the nil valuation (which it ought to be if the subcontractor uses the accepted programme to assess the delay
If point 4 results in the Subcontractor delaying a quote or refusing to use the Accepted programme, you can move it to Contractor assessment and value the CE based on the Accepted Programme (likely to be very low value).
The subcontractor may yet execute his works quicker, thus making the new date a CE later in the project, however, under NEC if you follow the contract properly now, there won’t be a CE later.
Most Contractors would fear to change the scope and address that change now, leading to a ongoing cycle of rejected programmes and arguments and have a breakdown in trust between the parties.
All of that can be avoided by simply following the contract now. In this particular case, following the contract will result in a good result for the Contractor