RICS draft guidance note - Subcontracting (1st edition)

Practical application (Level 2 - doing)

This chapter expands upon the information on the principles of subcontracting, and applies it in the context of:

  • procurement of subcontract works (and related topics), and
  • drafting the subcontract.

Developing a procurement strategy

A procurement strategy for subcontract works involves reviewing and setting requirements (e.g. the division of the main contract works into various subcontract works, scope, quality, time and cost), and assessing such requirements against associated risks.

The procurement strategy can be set at various stages of the project. For example, where the employer wishes to be actively involved in the subcontracting procurement strategy, it may draft a strategy at the same time as it drafts the procurement strategy for the main contract works. Where the main contractor sets the procurement strategy for subcontract works, which is what will be discussed in this section, it is likely to do so when it prepares its tender for the main contract works. A well-drafted and executed procurement strategy will help the main contractor to obtain suitable, well-considered tenders from the subcontract market. The main contractor could instead set a procurement strategy for the first time after it has been awarded the main contract.

The procurement strategy should set out how the various subcontract works will be procured. It has become common for procurement strategies to use the expression 'subcontract packages' instead of subcontract works, so that expression is used in this section.

A detailed procurement programme should be prepared and included in the procurement strategy. The procurement programme should be consistent with the demands of the design and construction activities. For each subcontract package, the procurement programme should contain, as a minimum, activities for:

  • pre-qualification
  • issuing the invitation to tender (ITT)
  • receipt of tenders
  • assessment of tenders
  • selection of the subcontractor
  • entering into the subcontract
  • design of the subcontract works
  • off-site subcontract works:
    • procurement of subcontractor's materials
    • design/fabrication drawings.
  • commencement of subcontract works on site
  • key dates/sections, and
  • completion of subcontract works

The durations allocated to the activities included in the procurement programme should be appropriate and realistic. If, for example, tenderers are given insufficient time to prepare their tenders properly, the quality of tenders is likely to be inadequate. In the worst case, if the tender duration is too short, it may cause potential tenderers to withdraw from the tender process entirely.

If a tenderer requests an extension of time to the tender period, this should be given all due consideration. If an extension is given, it should be given to all tenderers so that each tenderer is treated fairly, and is seen to be treated fairly. By the same token, a tenderer who has indicated to the main contractor that it will submit a tender must take steps to ensure that it submits a bona fide tender on time.

A procurement strategy prepared by the main contractor for subcontract packages will be different from a procurement strategy prepared by or on behalf of the employer for the main contract works. The division of the main contract works into subcontract packages often results in procurement strategies that are more sophisticated and complex than a procurement strategy for use in the procurement of the main contract works.

The content of the procurement strategy for the subcontract packages will vary depending on the circumstances of the project. An example contents list is set out in Appendix 1. The procurement strategy should be considered a 'live' document and be subject to revision as circumstances require.

Subcontract packages

The main contractor should determine the subcontract packages into which the main contract works are to be divided. For example, it is not unusual for the main contractor to choose to subcontract the mechanical and electrical works. However, there are many ways in which this can be done. The main contractor could decide that the whole of the mechanical and electrical works is one subcontract package, and subcontract it to one specialist subcontractor. Or the main contractor could decide that the mechanical works comprise one subcontract package and the electrical works comprise a separate package. Alternatively, the main contractor could decide that the mechanical works should be split into several packages, for example ductwork, insulation, controls and sprinklers.

The main contractor should determine the budget that is available to spend on each subcontract package. In most cases the budget will be derived from the allowance made by the main contractor in the contract sum for a particular subcontract package. However, the determination of that allowance may not always be straightforward. For example, if during its tender stage the main contractor's estimator did not price the main contract works using packages that are the same as those subsequently set in the procurement strategy, the financial allowance for a particular package might not be clear. In those circumstances, the main contractor will need to make decisions as to how its budget is allocated between different subcontract packages. The main contractor should also decide the way in which it will allocate any contingency or inflation allowance that may be included in the contract sum.

It is good practice for the main contractor to determine its subcontract package philosophy at the beginning of the procurement process. Options include:

  • Use the main contractor's in-house specialists: Where the main contractor is a member of a group of companies, other members of the same group may be employed as subcontractors. For example, the main contractor's group may include in-house design specialists or in-house specialist subcontractors in areas such as earthworks, piling, concrete works, mechanical and electrical works, and cladding. The extent to which the main contractor employs in-house companies may be determined as a matter of corporate governance, or it may be determined on a project-specific basis.
  • Use the main contractor's existing supply chain arrangements: Where the main contractor has existing arrangements in place with members of its supply chain, decide the extent to which those arrangements will be used in the procurement of subcontract packages. In addition, the main contractor may have formal relationships, such as preferred subcontractor agreements, with certain subcontractors. Such agreements may grant the main contractor and the relevant subcontractor certain rights; for example, the main contractor may have the right to appoint the relevant subcontractor under pre-agreed terms, or the subcontractor may have the right to tender for certain works.
  • Strategic subcontract packages: It is good practice for the procurement strategy to identify any strategic subcontract packages, i.e. packages that are particularly significant to the main contract works. Packages can be considered significant for many reasons, including monetary value, criticality to the programme or where there are few subcontractors available. Whether a particular subcontract package will be classed as strategic will vary from project to project. However, in the case of a commercial office development the subcontract packages of piling, structural frame, mechanical and electrical, lifts, cladding and roofing are likely to be included in a list of strategic packages. Unusual circumstances should also be considered. For example, the programme for the main contract works may dictate that works to divert existing underground services (water, gas, electricity and telecoms) on or adjacent to the site are critical to allow excavation works to begin. In those circumstances, service diversion works would be treated as strategic subcontract packages.
  • Transactional subcontract packages: The procurement strategy should also identify transactional subcontract packages, i.e. packages that are not as significant as strategic packages. These may include subcontract packages that are lower value, not critical to the programme or where there are many subcontractors available.

Procurement strategy

If the employer wishes to take an active part in procuring the subcontract works, it may wish to set a strategy in which it liaises with potential subcontractors before the main contractor is invited to tender for the main contract works. This liaison can range from initial discussions to obtain the subcontractor's views and opinions concerning the subcontract works, to something far more sophisticated. The employer could even go as far as to procure formal tenders for subcontract works from several tenderers and subsequently pass those tenders on to the main contractor. This is considered further in section 4.4.

A key point to consider is which works are to be subcontracted. Specialist works such as piling, structural steelwork, mechanical and electrical services, cladding and roofing are almost always subcontracted. However, where a main contractor has the in-house capability to carry out specialist works, it may decide to use its own resources or not subcontract such works beyond the group of companies of which it is a member. This approach can bring significant benefits in terms of working relationships, communication channels, joined-up thinking, programme and cost.

Accreditation

Accreditation is the recognition that an organisation is competent to perform specific activities in a reliable, credible and accurate manner. The main contractor may have its own accreditation scheme, whereby it gathers relevant information about a potential subcontractor and decides whether it should be named on the main contractor's own list of accredited subcontractors. A more informal means of accreditation may apply, where the main contractor chooses to rely on strong business-to-business relationships rather than operate a particular accreditation scheme. This may be common at the lower-value end of the market.

Accreditation may also be derived from construction industry bodies. For example, if a potential subcontractor is required to carry out piling works, it would be worthwhile to discover whether it has been audited by, and has satisfied the requirements of, a recognised industry body such as the Federation of Piling Specialists.

Pre-qualification

Once the list of potential subcontractors has been established, it is important to establish that each of the potential subcontractors is suitable, willing and able to tender. This is achieved by way of a pre-qualification procedure. The pre-qualification procedure should identify the criteria to be used in assessing whether the potential subcontractor will be selected to tender. The criteria should be objective, fair, accountable and transparent. The assessment may include an interview.

Each potential subcontractor should be sent a pre-qualification enquiry letter, which should enclose a schedule of project information and a pre-qualification questionnaire. The JCT Tendering Practice Note (2017) contains useful guidance on the pre-qualification process in the context of a tender for main contract works. Such guidance can be used to inform the requirements for pre-qualification for subcontract works, but any pre-qualification procedure should recognise and address the specific issues that arise in relation to the subcontract works in question.

Responses from potential subcontractors should be assessed against the selection criteria. Potential subcontractors who have not been selected to tender should be informed.

It is very important to note that the pre-qualification procedure should be appropriate and proportionate. While the main contractor requires information to establish that a potential subcontractor is competent, it should recognise that providing such information may involve the potential subcontractor incurring significant costs. Therefore, the pre-qualification procedure should be efficient and effective, so that the potential subcontractor's valuable resources are not misused. Lessons can be learned from the principle underlying BSI PAS 91:2013+A1:2017 Construction prequalification questionnaires. PAS 91 is a publicly available specification that sets out the content, format and use of questions that are widely applicable to pre-qualification for construction tendering. Using common criteria helps to streamline the tendering process by reducing the need for inefficient or repetitive completion of multiple pre-qualification processes. PAS 91 and its amendment of 2017 were the result of consultation with both professional bodies and subcontractor bodies, including the Specialist Engineering Contractors' Group and the Electrical Contractors' Association.

Early subcontractor involvement (ESCI)

ESCI is a procurement route in which a specialist subcontractor is introduced at an early stage of the project in order to bring knowledge of specialist design, construction and cost efficiencies to the pre-construction phase. This can be achieved by a two-stage tender procedure, or other procurement procedures such as management contracting or construction management.

ESCI can be implemented by the employer or the main contractor, or both. For example, if the employer has appointed its design consultants and their work will benefit from input by a specialist subcontractor (e.g. a cladding specialist), the employer may appoint a specialist subcontractor under a consultancy agreement or a pre-construction services agreement. The specialist subcontractor then works with the design consultants and contributes to the cladding design, which is incorporated into the design for the main contract works. Similarly, the main contractor might appoint a specialist subcontractor to assist with its tender for the main contract works, for example where the main contract works involve significant specialist works such as modular accommodation, complex foundations/deep excavations or process engineering works.

Pros and cons of ESCI

Pros include:

  • early collaboration and teamwork
  • specialist contribution to the design of the subcontract works
  • the specialist subcontractor can be selected swiftly, on the basis of technical expertise, its ability to add value and its commitment to agree prices
  • increased opportunities for innovation and value engineering
  • improved risk management
  • greater certainty on outturn costs and on-time completion
  • reduced likelihood of disputes, and
  • reduced dispute resolution costs.

Cons include:

  • competitive pricing from the subcontractor market is reduced
  • other potential tenderers will abandon interest in the subcontract works
  • potential uncertainty as to the roles and responsibilities of design consultants and subcontractors, and
  • increased opportunities for last-minute negotiation.

The tendering process

Selecting the appropriate tendering procedure

The selection of the tendering procedure for subcontract packages is not straightforward. Whereas the main contract works will generally only have one kind of tendering procedure (e.g. single-stage tendering or two-stage tendering), the tendering procedure for the various subcontract packages may vary from package to package.

The main contractor may use single-stage tendering for many subcontract packages, and may invite tenders from subcontractors to whom it issued enquires during the tender period for the main contract works, from new tenderers or from a combination of both.

Where the main contractor seeks tenders for subcontract works several months after it sought enquiries during the tender period for the main contract works, it is important that the main contractor seeks competitive tenders because the market may have shifted in the meantime.

If the main contractor does not have a free hand in selecting the procedure (e.g. the main contractor is obliged to demonstrate best value to the employer), it might have no option other than to use single-stage tendering.

Where the programme demands of the main contract works (e.g. a swift start on site) dictate that the main contractor must procure subcontract works without delay, it may select negotiated tendering and seek to negotiate with only one subcontractor. Such works might include early preliminary works, or early permanent works such as piling.

During the course of the main contract works, the main contractor may receive an instruction to carry out a variation that is best undertaken by a particular specialist subcontractor (e.g. the fitting out of a gym in a leisure centre, which was initially intended to be left as a shell). The main contractor may use negotiated tendering to procure the fitting-out subcontractor best suited to carry out the work.

It is possible that the absence of competitive tendering for such works will result in the main contractor paying a higher price than would be the case if single-stage competitive tenders were obtained. This has to be taken into account by the main contractor when selecting its preferred tendering procedure.

In some cases, the main contractor may select two-stage tendering. For instance, where the main contractor is obliged to design and build the main contract works, it may be important to procure the design for particular subcontract works reasonably swiftly after entering into the main contract, and a long time before those works are planned to commence on site. There may be barriers that prevent the main contractor and subcontractor from entering into a subcontract at that time (e.g. the design may not be sufficiently advanced, or the price and programme have not been agreed). In those circumstances, the main contractor may use a two-stage tendering procedure.

Where the main contractor has a free hand in selecting the subcontractor and the main contractor's procurement strategy has determined that it wishes to employ an in-house company to carry out the works, in the absence of any rules imposed by the main contractor's own corporate governance the main contractor may choose not to seek tenders for those works at all, and simply negotiate with its in-house company.

The invitation to tender (ITT)

The ITT is the formal document in which the potential subcontractor is invited to submit a tender for specific subcontract works. Therefore, it is very important that the ITT is appropriate, correct and complete. The content of the ITT will vary depending on the tendering procedure selected for use with the particular subcontract package. Guidance on the content of an ITT when pricing main contract works is given in the JCT Tendering Practice Note (2017), and much of that guidance is applicable when procuring tenders for subcontract works.

The procurement strategy should set out the stage of design that is required (or at least desired) for the purpose of preparing the ITT for each particular subcontract package. The level of design work required and its quality will have an effect on the quality of the tenders that are submitted. Where the subcontract package is to be procured shortly after the main contractor enters into the main contract (which may apply in the case of piling, for example), the design of the subcontract works included in the ITT may be the same as that in the main contract. If the design is not complete, the tenderers might perceive a need to qualify their tenders or include a greater allowance for risk in their tender price. Alternatively, where the design of a particular subcontract package has been developed by the main contractor beyond the incomplete design included in the main contract, into a completed design for the purpose of the ITT, in most cases it is appropriate to include the completed design in the ITT.

The ITT cover letter acts as the tenderer's first window into the tender and the subcontract package. It should contain:

  • the formal invitation for the tenderer to submit a tender
  • a description of the main contract works
  • a description of the subcontract package
  • the date for the submission of the tender, and
  • how the tender must be submitted (e.g. in writing, sealed in an envelope; uploaded to a portal for electronic submission; etc.).

The instructions to tenderers contain the rules that apply to the tendering process. In most cases, these instructions do not form part of any future subcontract. It is good practice for the instructions to make that position plain. The JCT Tendering Practice Note (2017) contains guidance on the contents of instructions to tenderers.

The form of tender is a document that the tenderer must complete and submit with its tender. Its purpose is to set out the tenderer's offer and to provide certain confirmations and information to the main contractor. The content of the form of tender will vary from package to package. In many cases, the form of tender will be a relatively simple document, but it should contain information that is essential to the tender (e.g. an unequivocal offer). The form of tender should also be drafted in a manner that facilitates the inclusion of documents that are required to be submitted with the tender (e.g. pricing document, programme and method statement).

The ITT should contain information regarding the form of subcontract that will apply if the tenderer is appointed by the main contractor. The extent of such information may vary depending on the circumstances. At one end of the spectrum, the information may consist of only the name of the form of subcontract (e.g. JCT Design and Build Sub-Contract 2016) and a copy of any amendments to that form of subcontract that the main contractor requires. At the other end of the spectrum, the ITT may contain a draft of the completed subcontract, with all the information included and all the project-specific details completed. In that case, only the price for the subcontract works and the name of the subcontractor need to be inserted into the draft to complete the subcontract.

It is not good practice for the ITT to contain limited information about the form of subcontract. It is much better for the ITT to contain a draft of the completed subcontract. In practice, however, it is sometimes difficult to complete every part of a draft subcontract for the purpose of an ITT. Where a draft subcontract is not included in the ITT, the information required by the subcontract should, as far as possible, be included in the ITT by other means (e.g. by a cross-reference to the relevant standard form of subcontract).

The particulars or data specific to the subcontract should be included in the ITT so that the tenderer can take them into account when preparing its tender; examples are set out in section 4.8.5.

Particulars or data are often set out in a standard form; for example, where the form of subcontract is JCT DBSub 2016 they are included in the Sub-Contract Particulars, and where an NEC4 ECS is used they are included in the Subcontract Data.

The ITT should identify the scope of the subcontract works. This should consist of a description of the subcontract works, along with relevant technical documents such as drawings and specifications. The ITT should also identify whether the tenderer will be obliged to design all or part of the subcontract works. Almost all subcontract works have interfaces with other parts of the main contract works. The ITT should clearly state the extent of the subcontract works and the relevant interfaces.

The ITT should set out any special requirements of the main contractor. The main contractor may have its own policies that are relevant to the subcontract works (see section 3.8.9). For example, if the main contractor's health and safety policy requires a subcontractor's operatives to attend particular inductions on site, this may affect the tenderer's price and should be included in the ITT.

Similarly, where the main contractor has developed a particular logistics regime for the execution of the main contract works and requires the tenderer to comply with it, details of the regime should also be included.

In most cases, the ITT will require the tenderer to submit a completed pricing document as part of its tender. Therefore, the ITT should identify the form of pricing document required.

Where the main contract works are procured by an employer-led design team using full bills of quantities prepared by or on behalf of the employer, the main contractor may choose to extract the parts that relate to the subcontract works from those bills, and use those extracts as the pricing document for the purpose of the ITT.

Where bills of quantities have not been prepared by or on behalf of the employer, the main contractor may have prepared its own bills for the main contract works and may decide to use relevant extracts as the pricing document for the ITT. In those cases, the main contractor will need to consider whether it wishes to accept the risk that the quantities stated in the pricing document may be incorrect or it wishes to pass such risk on to the tenderer. This should be dealt with in the ITT so that the tenderer knows whether it will be required to accept the risk of such quantities.

Alternatively, the tenderer may be required to prepare its own pricing document. For example, in some cases the tenderer may be required to prepare a priced schedule of the activities forming the subcontract works (an activity schedule). Each tenderer may view the activities in a different way, so the activity schedule may differ between tenderers. JCT DBSub 2016 and NEC4 ECS (Options A and C) envisage that an activity schedule is included in the subcontract.

Provisional sums should also be considered. If the main contractor requires the tenderer to include provisional sums in its tender, the amount of the provisional sum should be stated in the ITT, along with an appropriate description of the work it covers given the extent and quality of the design information available. The classification of the provisional sum should also be considered. Where the RICS New Rules of Measurement apply, provisional sums should be identified as being either defined or undefined so that the tenderer is aware of which rules apply to which provisional sum. Where the RICS New Rules of Measurement do not apply, take care to identify the contractual allocation of risk that applies to the provisional sums, for example whether the tenderer's offer is expected to have made due allowance for programming, planning and pricing preliminaries for the provisional sum work. The ITT should also identify whether the provisional sum is expected to include the tenderer's overheads and profit. In most cases, it is appropriate for the provisional sum to exclude overheads and profit, which should be dealt with elsewhere in the pricing document.

The ITT should contain information concerning the main contract, in sufficient detail to enable the tenderer to understand the main contract and the context in which the subcontract works will be executed. It is good practice for the ITT to contain a copy of the main contract (or the amendments to the main contract) with confidential and/or commercially sensitive information redacted.

The ITT should also address other matters that may affect the tender, for example requirements for insurances, collateral warranties, third-party rights and performance security.

Issuing and amending the ITT

The main contractor may be free to choose the manner in which the ITT is issued or, in some cases, it may be obliged to issue the ITT in accordance with a procedure determined by the main contract. For example, if the main contract requires the main contractor to procure tenders for work that are dealt with by a provisional sum, the provisional sum provisions included in the main contract may require the main contractor to issue the ITT to tenderers in a specified manner.

The traditional way in which the ITT is prepared and issued is to print paper copies of all the relevant documents and issue an identical ITT to each tenderer at the same time (usually by special delivery or recorded post). A paper ITT may be large and expensive to produce (for instance where the relevant drawings and specifications are extensive).

Online e-tendering - the electronic issuing of tender documentation as part of the procurement process - has become common in recent years. Further information on e-tendering is set out in section 5.1.

The ITT should set out the process for the submission of, and response to, tender queries. It is difficult to prepare an ITT that covers all the issues that may arise, so the submission of tender queries is not unusual.

However, the procurement of tenders from potential subcontractors raises several specific issues. For example, the ITT should identify the scope of the subcontract works with accuracy, and address any interfaces between separate subcontract packages. This is not an easy task. The tenderer's price will be a function of the scope, so the tenderer will want to be clear that it understands the scope with certainty. Therefore, even where the ITT is well-drafted, tender queries in relation to scope and interfaces are likely to arise. In addition, the fact that the tenderer will be acting as a subcontractor to the main contractor raises issues regarding health and safety, programme, attendances, logistics, site setup, etc. In most cases, the submission of tender queries by potential subcontractors should be viewed as a good thing: it shows that the tenderers are considering the ITT seriously and helps the main contractor to iron out any ambiguities, reducing the risk that they surface later in the procurement process, or even after the subcontract is entered into.

All queries should be addressed in a professional manner. In many cases, it will be necessary for the subject matter of the tender query and the response to be reflected in any eventual subcontract. Therefore, when issuing the response it is important to bear in mind that such wording may be included in the subcontract.

There are three key features of good practice when responding to tender queries:

  • The tenderer who raised the tender query should not be identified in the response.
  • The response should be issued to all tenderers at the same time, so that all tenderers are treated equally.
  • Each response should be issued as soon as practical. Where time allows, it may be appropriate to respond to several tender queries at the same time; however, this should be avoided if doing so would unnecessarily delay any particular response.

If it is necessary to issue an amendment to the ITT - sometimes called a 'tender addendum' - each tenderer should receive the amendment at the same time. Amendments to the ITT cause difficulties for tenderers and are likely to increase the cost of tendering. Therefore, they should be avoided where possible.

However, amendments to the ITT may be essential. For example, where during the tender period the main contract works are subject to a significant variation that affects the scope of the subcontract works, it may be appropriate for the ITT to be amended to reflect this variation. During the tender period it may also become apparent that certain documents related to the main contract works, but which were not included in the ITT, are important to tenderers. In those circumstances the ITT should be amended to include these documents. Also, if during the tender period the main contractor makes changes that may affect the carrying out of the subcontract works (e.g. access strategy, logistics, the number or type of tower cranes, etc.), the ITT should be amended to reflect these changes.

Mid-tender reviews may not be necessary for each subcontract package. However, it is good practice to carry out a mid-tender review or a meeting where the scope of the subcontract package is significant or critical to the main contract works. It is an opportunity for the main contractor and the tenderer to discuss concerns in detail so that the tenderer is able to make a properly informed offer. Mid-tender reviews and meetings can lead to the ITT being amended.

Receiving and reviewing submitted tenders

The receipt and review of tenders by the main contractor should be carried out in a professional manner. The main contractor might seek tenders from the same tenderers on several occasions, so it is important that each tenderer is confident that its tender will be properly received and reviewed, and that each tender is treated equally.

Any procedure for opening tenders should be open, fair and transparent. It is good practice for tender opening to be recorded in a prescribed form, along with key information such as whether the tenderer has submitted the required documents, price, programme, qualifications and/or exclusions.

The instructions to tenderers should have specified the documents that are required to be submitted with the tender. Each tender should be checked to establish whether it complies with these instructions. For example, if the instructions to tenderers required the tenderer to submit a method statement for a particular part of the subcontract works and the tenderer has not done so, the absence of the required method statement should be taken into account when assessing the tender.

Each tender should be checked to establish whether it contains any errors, qualifications and exclusions.

A tender may contain several types of error. First, the tenderer's price may contain computational errors, which should be dealt with in the manner set out in the instructions to tenderers. There are two main alternatives:

  • require the tenderer to affirm its price or else withdraw its tender, or
  • allow the tenderer to amend its price.

The choice of which alternative to adopt will vary depending on the circumstances. The first option is more likely to lead to tendering that has been properly considered, and a disadvantage of the second option is that it is open to abuse. However, for tenders submitted by potential subcontractors the second option is usually a more practical solution. The tender may also contain errors of detail (e.g. in terms of programme), or the documents submitted with the tender may be incorrect; in those cases, the tenderer should be contacted to clarify their position.

It is not unusual for tenders to contain qualifications and/or exclusions. The main contractor should deal with these so that tenders are considered on an equal basis. Where appropriate, it is good practice for the main contractor to submit a query to the tenderer so that it is given an opportunity to withdraw the qualification or exclusion. This process should not provide an opportunity for the tenderer to submit a different tender.

For example, if the ITT requires the tenderer to base its price on procuring construction plant from a particular plant hire company and the tenderer qualifies its tender to the effect that its price is based on a different plant hire company, the tenderer should be informed that its price will be considered as being based on using the specified plant hire company and the tenderer's consent to this should be obtained in writing. The tenderer should not be permitted to submit a new tender.

Where the tenderer submits technical proposals with its tender, they should be checked to establish whether they meet the technical requirements set out in the ITT. This may not be a straightforward task, and it may be necessary to hold post-tender meetings so that the main contractor is better able to understand the technical proposals submitted with the tender.

If all the submitted tenders comply with the instructions to tenderers and meet the requirements of the ITT, comparing them should be straightforward. However, if they do not comply with the instructions or are qualified, the comparison will be difficult. In some cases, a measure of commercial judgement may be needed to develop a meaningful comparison. The way in which tenders will be assessed should be stated in the instructions to tenderers and used for comparison purposes.

Once the tenders have been opened, checked and compared, the next step is to prepare a tender recommendation report. This is a recommendation to management as to which of the tenderers should be appointed as the subcontractor. The content of the tender recommendation report will vary depending on the circumstances; an example is set out in Appendix 2.

The tender recommendation report and/or consideration of it by management may generate queries or issues that are best resolved through discussion and/or negotiation with the tenderer recommended in the report. Queries should be raised and addressed in a manner that respects the tendering procedure. Where the main contractor and the tenderer are commercial organisations, it is common for a degree of negotiation to take place regarding the details of the tenderer's offer and the contents of a potential subcontract. Once the queries have been resolved and the negotiations concluded, the main contractor will be in a position to select the successful tenderer and move on to drafting the subcontract.

Post-tender changes

The requirements for the subcontract works may change after the tenderer has submitted its tender. For example, the employer might require changes to the design of the main contract works that affect the subcontract works, or the main contractor might require the subcontract works to be completed to a different timescale that that referred to in the ITT. In most cases, it is good practice for changes that may affect the design or the subcontractor's tender to be issued to all tenderers, and for revised tenders to be sought and assessed.

Value management (VM)/value engineering (VE)

The current edition of Value management and value engineering, RICS guidance note, introduces the concepts of VM and VE in relation to construction projects.

The requirements for the subcontract works may change as a result of VM or VE exercises. The general view is that the benefits of VM or VE decrease as the project progresses. The greatest benefit is derived during the early stages of the project. This can include the tender stage; for example, tenderers who are specialists in particular works might suggest some ideas for VM or VE with their tenders.

Incorporating post-tender changes, VM and VE into the subcontract

Ensure that post-tender changes, VM and VE are appropriately incorporated into the subcontract. The subcontract will need to substitute documents (e.g. drawings and specifications) that properly reflect the post-tender changes, VM or VE for some of the documents that formed part of the ITT. The compilation of such documents can be time consuming, but if the exercise is not carried out properly, the subcontract might contain discrepancies or ambiguities that may lead to technical and commercial difficulties.

Specific standard forms of subcontract

JCT Standard Building Sub-Contract 2016 (SBCSub)

SBCSub comprises two versions:

  • Standard Building Sub-Contract 2016 (SBCSub)
  • Standard Building Sub-Contract with sub-contractor's design 2016 (SBCSub/D).

SBCSub can be used:

  • where the main contract is any of the three versions of the JCT Standard Building Contract 2016: Standard Building Contract With Quantities (SBC/Q), With Approximate Quantities (SBC/AQ) or Without Quantities (SBC/XQ)
  • where the subcontract works are to be carried out on the basis of an adjusted subcontract sum (adjustment for variations, etc.) or by complete remeasurement
  • where the main contract works and/or the subcontract works are to be carried out in sections
  • where the subcontractor is not required to design any of the subcontract works.

SBCSub/D can be used:

  • where the first three bullets regarding SBCSub apply
  • where the subcontractor is required to design all or part of the subcontract works.

Each of the two subcontracts consists of two documents: the Sub-Contract Agreement and the Sub-Contract Conditions.

For SBCSub, the two documents are:

  • Standard Building Sub-Contract Agreement (SBCSub/A)
  • Standard Building Sub-Contract Conditions (SBCSub/C).

For SBCSub/D, the two documents are:

  • Standard Building Sub-Contract with subcontractor's design Agreement (SBCSub/D/A)
  • Standard Building Sub-Contract with subcontractor's design Conditions (SBCSub/D/C).

SBCSub/C and SBCSub/D/C contain a step-down clause.

The other subcontract documents are incorporated into the agreement (SBCSub/A or SBCSub/D/A) by reference, including the conditions (SBCSub/C or SBCSub/D/C), so it is not necessary to include a copy of the conditions in the executed subcontract.

JCT Design and Build Sub-Contract 2016 (DBSub)

DBSub can be used:

  • where the main contract is the JCT Design and Build Contract 2016 (DB 2016)
  • where the subcontract works are to be carried out on the basis of an adjusted subcontract sum (adjustment for variations, etc.) or by complete remeasurement
  • where the main contract works and/or the subcontract works are to be carried out in sections
  • whether or not the subcontractor is required to design any of the subcontract works.

DBSub consists of two documents:

  • Design and Build Sub-Contract Agreement (DBSub/A)
  • Design and Build Sub-Contract Conditions (DBSub/C).

DBSub contains a step-down clause.

The other subcontract documents are incorporated into DBSub/A by reference. This includes DBSub/C, so it is not necessary to include a copy of DBSub/C in the executed subcontract.

DBSub is different from SBCSub/D. The former is only for use where the main contract is the JCT Design and Build Contract 2016, whereas the latter is only for use where the main contract is one of the three versions of the JCT Standard Building Contract 2016.

JCT Major Project Sub-Contract 2016 (MPSub)

MPSub can be used:

  • where the main contract is the JCT Major Project Construction Contract 2016 (MP 2016)
  • where the subcontract works are to be carried out on the basis of an adjusted subcontract sum (adjustment for variations, etc.) or by complete remeasurement
  • where the main contract works are to be carried out in sections
  • whether or not the subcontractor is required to design any of the subcontract works.

MPSub contains a step-down clause.

MP 2016 (and its previous versions) was prepared to meet the requirements of employers and main contractors who regularly carry out major construction work and have their own contractual procedures. MPSub reflects the approach of MP 2016 and proceeds on the basis that the subcontractor will be experienced in working on major construction works, and is able to take greater risks than would arise under other JCT subcontracts. MPSub is shorter than other standard forms of subcontract. It does not contain a separate agreement; many users of MPSub prepare their own agreement to use in conjunction with the form.

JCT Intermediate Sub-Contract 2016 (ICSub)/JCT Intermediate Sub-Contract with subcontractor's design 2016 (ICSub/D)

ICSub can be used:

  • where the main contract is the JCT Intermediate Building Contract 2016 (IC 2016)
  • where the main contract is the JCT Intermediate Building Contract 2016 with contractor's design (ICD 2016)
  • where the subcontract works are to be carried out on the basis of an adjusted subcontract sum (adjustment for variations, etc.) or by complete remeasurement
  • where the main contract works and/or the subcontract works are to be carried out in sections
  • where the subcontract is to be executed under hand or as deed
  • where the subcontractor is not required to design any of the subcontract works
  • where the subcontractor is not named in the main contract.

ICSub consists of two documents:

  • Intermediate Sub-Contract Agreement (ICSub/A)
  • Intermediate Sub-Contract Conditions (ICSub/C)

ICSub contains a step-down clause.

The other subcontract documents are incorporated into ICSub/A by reference. This includes ICSub/C, so it is not necessary to include a copy of ICSub/C in the executed subcontract.

ICSub/D is similar to ICSub, but can be used where the subcontractor is required to design all or part of the subcontract works.

JCT Intermediate Named Sub-Contract 2016 (ICSub/NAM)

ICSub/NAM can be used:

  • where the main contract is the JCT Intermediate Building Contract 2016 (IC 2016)
  • where the main contract is the JCT Intermediate Building Contract 2016 with contractor's design (ICD 2016)
  • where the subcontractor is named in the main contract to carry out subcontract works, whether or not they include design
  • where the subcontract works are to be carried out on the basis of an adjusted subcontract sum (adjustment for variations, etc.) or by complete remeasurement
  • where the main contract works and/or the subcontract works are to be carried out in sections.

ICSub/NAM cannot be used for any work that forms part of the Contractor's Designed Portion under the main contract (IC 2016 or ICD 2016). Under IC 2016 and ICD 2016, the main contractor is relieved of responsibility to the employer for defects in the named subcontractor's design of the subcontract works.

ICSub/NAM consists of four documents:

  • Invitation to Tender (ICSub/NAM/IT)
  • Tender (ICSub/NAM/T)
  • Agreement (ICSub/NAM/A)
  • Intermediate Named Sub-Contract Conditions (ICSub/NAM/C)

The process by which ICSub/NAM is entered into is as follows:

  • The employer or the CA completes the Invitation to Tender (ICSub/NAM/IT) and sends it to the proposed named subcontractor.
  • The proposed named subcontractor submits its tender (ICSub/NAM/T) to the employer or the CA.
  • The main contractor is made aware of the proposed named subcontractor because its tender and the invitation to tender will be included in the tender documents issued to the main contractor for the main contract, in an instruction to expend a provisional sum under the main contract or to expend a provisional sum naming a replacement named subcontractor.
  • The main contract and the named subcontractor enter into ICSub/NAM.

ICSub/NAM contains a step-down clause.

The other subcontract documents are incorporated into ICSub/NAM/A by reference. This includes ICSub/NAM/C, so it is not necessary to include a copy of ICSub/NAM/C in the executed subcontract.

Other JCT subcontracts and related contracts

JCT publishes other forms of subcontract and related contracts. Although this guidance note does not consider those other forms in detail, practitioners should be aware of them. These forms include:

  • JCT Minor Works Sub-Contract with subcontractor's design 2016 (MWSub/D)
  • JCT Short Form of Sub-Contract 2016 (ShortSub)
  • JCT Management Works Contract 2016 (MCWC)
  • JCT Construction Management Trade Contract 2016 (CM/TC)
  • JCT Sub-Sub-Contract 2016 (SubSub)
  • JCT Pre-Construction Services Agreement (Specialist) 2016 (PCSA/SP)

CIP Short Form Sub-Contract 2014

This a very simple subcontract. It can be used where the main contract is a JCT contract, and the subcontract works are straightforward and involve low risk. The subcontract works can include design, although if the subcontract works or their design are complex, another form of subcontract should be used. It should not be used where the subcontract is required to be fully back-to-back with the main contract.

CIP Scaffolding Contract 2018

This was developed with the assistance of The Contractors Legal Group and the National Access and Scaffolding Confederation. It can be used for all types of scaffolding works.

In addition to the normal conditions of contract, the form contains a schedule of commonly encountered scaffolding items, which the parties can price at the outset to minimise any concerns about the cost of changes/variations that may be required to the scaffolding while the works proceed.

NEC4 Engineering and Construction Subcontract (NEC4 ECS)

NEC4 ECS is a member of the NEC4 family, the fourth edition of the Engineering and Construction Contract (ECC), and is consistent with other NEC contracts.

NEC4 ECS is current, but NEC3 ECS is still commonly used. Where this guidance note refers to a particular clause number in NEC4 ECS, the same clause number applies in NEC3 ECS, and so can provide guidance regarding NEC3 ECS. However, NEC4 ECS and NEC3 ECS are different in other respects (e.g. the use of defined terms), so take particular care to check the express provisions of NEC3 ECS every time it is used.

NEC4 ECS can be used:

  • where the main contract is any of the main options of the ECC main contract (Options A to F)
  • where the ECC main contract includes none, some or all of the ECC secondary options
  • where the subcontract is to be executed under hand or as deed
  • where the subcontractor is required to design none, part or all of the subcontract works
  • where the main contract works and/or the subcontract works are to be carried out in sections
  • where the subcontract works are to be carried out on the basis of any of the main Options A to E of the subcontract.

As with the ECC main contract, the starting point for NEC4 ECS is for the user to decide which of the main, dispute resolution and secondary options should apply. It is not necessary for the same options to apply in the subcontract as in the main contract.

NEC4 ECS consists of one document. It does not contain an agreement. The agreement is generally drafted by the main contractor, and it should incorporate the other subcontract documents by reference.

NEC4 ECS does not contain a step-down clause, but is drafted as a 'pass through' contract: the clauses are in most cases identical to the equivalent clauses in the ECC main contract, except for necessary changes to the terms used, such as using 'subcontractor' in place of 'contractor'. Step-down clauses have been included in subcontracts for many years, and main contractors have become familiar with them. Where the main contractor decides that a step-down clause is required in NEC4 ECS, it can be included in the subcontract by using Option Z (additional conditions of subcontract) and including suitable wording to deal with the step down.

NEC4 Engineering and Construction Short Subcontract (ECSS)

ECSS is a member of the NEC4 family, and is consistent with other NEC contracts.

ECSS can be used:

  • where the main contract is any of the main options of the ECC main contract (Options A to F)
  • where the main contract is ECC and includes none, some or all of the ECC secondary options
  • where the main contract is NEC4 Engineering and Construction Short Contract (ECSC)
  • where the subcontract is to be executed under hand or as deed
  • where the price to be paid is a lump sum, or adjustable if the quantity of work stated in the subcontract is different from the final quantity of work done
  • where the subcontractor is required to design none, part or all of the subcontract works
  • where the main contract works are to be carried out in sections
  • where the subcontract works are not required to be carried out in sections
  • where the subcontract works are to be carried out on the basis of any of the main Options A to E of the subcontract.

ECSS should be used with contracts that do not require sophisticated management techniques, consist of straightforward work and only impose low risks on both the contractor and the subcontractor.

CECA/ACE subcontracts

The CECA and ACE subcontracts for use with ICC include:

  • CECA Form of Sub-Contract for use in conjunction with the Infrastructure Conditions of Contract Measurement Version August 2011
  • CECA Form of Sub-Contract for use in conjunction with the Infrastructure Conditions of Contract Design and Construct Version August 2011
  • ACE/CECA ICC Sub-Contract 2017 for use in conjunction with the Infrastructure Conditions of Contract With Quantities Version

ACA standard form of specialist contract for project partnering (SPC 2000)

ACA publishes a standard form of project partnering contract, PPC2000 (the current version is PPC2000 2013), a multi-party project partnering contract for use in a single project. The parties can include the employer, the main contractor (known as the 'constructor'), design consultants, specialist contractors and suppliers. It forms one integrated contract, under which the various parties rely on each other and should not seek to pass risk and problems up or down a contractual chain.

Under PPC2000 the specialist brings its skills to the project team but is considered to act at the same level as the other parties to the contract, rather than sitting at a lower tier of a contractual chain.

ACA also publishes SPC2000 (the current version is SPC 2000 2008), the first standard form of specialist contract for project partnering. It complements PPC2000 and can be used where:

  • the specialist is a member of the partnering team and a party to PPC2000, but the entire legal relationship between the constructor and the specialist cannot be addressed in PPC2000, or
  • the specialist is not a member of the partnering team.

Among other things, SPC2000 identifies whether the specialist is a member of the partnering team, and calls for the specialist to support the constructor and provide them with information and assistance.

FIDIC subcontracts

In December 2017, FIDIC published:

  • Conditions of Contract for Construction, Second Edition, 2017 (Red Book, 2017)
  • Conditions of Contract for Plant and Design-Build, Second Edition, 2017 (Yellow Book, 2017)
  • Conditions of Contract for EPC/Turnkey Projects, Second Edition, 2017 (Silver Book, 2017)

The 2017 editions are the latest editions of the rainbow suite of contracts. Several FIDIC contracts were not updated.

In 2011, FIDIC published Conditions of Subcontract for Construction: for Building and Engineering Works Designed by the Employer, First Edition 2011 (Red Book subcontract). The Red Book subcontract can be used where the main contract is the Red Book or the Pink Book. The Red Book subcontract was not updated in 2017.

In December 2019, FIDIC launched its Conditions of Subcontract for Plant and Design-Build, First Edition 2019 (Yellow Book subcontract). It is intended for use where the main contract is based on the FIDIC Conditions of Contract for Plant and Design-Build, First Edition 1999. The Yellow Book subcontract is based on the Red Book subcontract, with changes where necessary to reflect differences between the FIDIC Red and Yellow main contracts.

FIDIC subcontracts are drafted in a way that assumes all the obligations of the main contractor under the main contract are passed down to the subcontractor under the subcontract. The subcontractor is also expected to have full knowledge of the relevant provisions of the main contract. Under FIDIC subcontracts, the subcontractor takes on more risk than under other standard forms of subcontract. This reflects the philosophy of the FIDIC suite of main contracts.

Drafting the subcontract

This section highlights some of the key matters that should be considered when drafting the subcontract. Where applicable, an outline of the way in which such issues are addressed in two commonly used subcontracts (JCT DBSub 2016 and NEC4 ECS) is provided.

Choosing the form of subcontract

The starting point in drafting any subcontract is to choose from the range of subcontracts that are available. Several key factors should be taken into account:

  • Identify the main contract and whether a particular form of subcontract is available for use with that main contract (see section 4.7). For example, if the main contract is JCT DB 2016, the associated JCT DBSub 2016 is available for use with that main contract. In many cases it will be appropriate to use the available form but if, for example, the subcontract works in a particular case are very simple, straightforward and low risk, the use of a sophisticated subcontract such as JCT DBSub 2016 may be unnecessary and a relatively simple form of subcontract could be used instead.
  • Consider the relationship between the main contract and the subcontract (see section 4.8.3).
  • Although there are often benefits in drafting the subcontract so that it is consistent with the main contract, it does not have to be. For example, where the main contract is NEC4 Option C, the subcontract could be NEC4 ECS but it would not necessarily follow that Option C should be used. Commercial considerations may result in, for instance, NEC4 ESC Option A being used instead.
  • Where the main contract is bespoke, give special consideration to the form of subcontract. A bespoke form of subcontract that reflects the main contract where applicable may be appropriate.

Lump sum/adjustment versus remeasure

Consider whether the amount to be paid to the subcontractor should be based on a lump sum or a remeasure. Although such expressions are not precisely defined, they are understood by many practitioners.

Where lump sum/adjustment applies, the subcontract will contain a lump sum that will be paid to the subcontractor for the subcontract works (subject to adjustment in accordance with the conditions of the subcontract, e.g. for variations).

Alternatively, where remeasurement applies the amount to be paid to the subcontractor for the subcontract works is based on a complete remeasurement of the subcontract works, rather than adjustments to an initial lump sum.

Consider the merits of each option. For example, where a lump sum/adjustment basis applies, it will give a reasonable degree of certainty as to the final cost to the main contractor and the final value amount to be paid to the subcontractor. Where remeasurement applies, neither the main contractor nor the subcontractor will know with certainty the amount to be paid to the subcontractor until the subcontract works have been completed, remeasured and the value calculated. In addition, where remeasurement is used, the costs of administering the subcontract can be high because skilled resources from the main contractor and subcontractor must be allocated to prepare the remeasurement and agree it.

If the subcontract is entered into when the design of the subcontract works is not very developed, it will not be practical to accurately identify the quality and quantity of the subcontract works. Consequently, if the lump sum/adjustment basis is used, the subcontractor's lump sum for the work is likely to be very high because the subcontractor will (understandably) include a relatively high risk allowance. In those circumstances it may be appropriate to enter into the subcontract based on the information available at the time, and then use the remeasurement basis to ensure that the final amount paid to the subcontractor is a fair amount for the actual work done.

JCT DBSub 2016 contains optional provisions to select either the lump sum/adjustment basis (Article 3A) or the remeasurement basis (Article 3B). Once the appropriate article is selected, the relevant conditions of subcontract apply so the amount to be paid to the subcontractor can be calculated in accordance with those conditions.

Relationship between the subcontract and the main contract

So that the main contractor is able to deliver the main contract works, it is important that the subcontract reflects the main contract where necessary. For example, if the main contract requires the main contractor to use a particular concrete mix in the piles, that requirement should also be imposed on the piling subcontractor in the subcontract. The relationship between the subcontract and the main contract is mainly dependent on the terms of the subcontract. For example, in circumstances where the main contract is a sophisticated standard form of main contract (e.g. JCT DB 2016) and the subcontract is a simple subcontract made on the subcontractor's standard terms, there may be no particular relationship between the subcontract and the main contract; the subcontract might not even mention the main contract.

However, in many cases the subcontract will be one of three common types, or a close variant. Various expressions are used to describe various types of subcontract, but there is no universally recognised vocabulary for the classification of subcontracts. Expressions such as 'back-to-back subcontract', 'standalone subcontract', 'step-down subcontract', 'flow-down subcontract' and 'pass-through subcontract' are often used without precise or consistent meanings. Therefore, when using those or similar expressions, it is important to clarify what is meant.

Under a back-to-back subcontract, the rights and obligations of the subcontractor under the subcontract are very similar (in some cases identical) to the rights and obligations of the main contractor under the main contract. This is commonly achieved by incorporating all the relevant conditions of the main contract into the subcontract by reference.

A back-to-back subcontract may be 'full' or 'partial'. A full back-to-back subcontract may be used where the main contractor is a vehicle for procuring the services or works of the subcontractor. For example, in some developing countries there may be a requirement that a government entity contracts with a local company registered in that country. The local company might then sublet all its main contract works to a company from another country under a full back-to-back subcontract.

A partial back-to-back subcontract may be used where the subcontractor is required to fulfil a large proportion, but not all, of the main contractor's obligations under the main contract. For instance, to continue the developing countries example, the main contract works may consist of the design, construction and fitting out of a large hospital. The local main contractor may sublet the whole of the main contract works, except the supply and installation of specialist medical equipment (e.g. X-ray machines and MRI scanners), to a foreign construction subcontractor by way of a partial back-to-back subcontract.

Although the use of a back-to-back subcontract appears to have advantages, there are also disadvantages:

  • If the main contract is badly drafted, the back-to-back subcontract will be equally badly drafted.
  • It may not be appropriate or even lawful for every obligation that is imposed on the main contractor under the main contract to be imposed on the subcontractor on the same terms. For example, the way in which the main contract deals with confidentiality, giving notice, payment, intellectual property, data protection and dispute resolution may not be suitable for use in the subcontract.
  • On its own, a back-to-back subcontract will not include the main contractor's special requirements (see section 3.8.9).

Many subcontracts are described as being back-to-back, but in reality few subcontracts truly are.

A standalone subcontract does not rely on all the terms of the main contract being incorporated by reference. However, a well-drafted standalone subcontract will incorporate those terms that are relevant to the subcontract and the subcontract works, redrafted so that they are suitable for use in the subcontract. In this way, the rights and obligations of the subcontractor under the subcontract are aligned with the rights and obligations of the main contractor under the main contract, without the disadvantages associated with a back-to-back subcontract. This is sometimes called a step-down, flow-down or pass-through subcontract.

A standalone subcontract will usually contain a clause under which the subcontractor indemnifies the main contract against losses incurred by the main contractor as a result of a breach by the subcontractor that causes the main contractor to be in breach of the main contract. The main contractor's obligations that should be stepped down to the subcontractor will vary, depending on the nature of the main contract works and the subcontract works. However, examples of clauses in the main contract that would usually be stepped down to the subcontractor include those that deal with the standard of care in relation to design, quality of materials and workmanship, defects, duty to progress works, responsibility for discrepancies in documents, rectification of damaged works, valuation of variations, access to off-site premises and information security.

Standard form subcontracts (see section 4.7) often contain clauses that are consistent with the relevant main contract and/or step down relevant clauses of the main contract. For example, some standard form subcontracts contain a clause stating the subcontractor is obliged to observe, perform and comply with the main contractor's obligations under the main contract where they apply to the subcontract works.

Standard form main contracts are often amended to reflect the employer's and main contractor's particular requirements for the main contract works. In drafting a subcontract in such circumstances, the main contractor may use the relevant standard form of subcontract as a basis, but should see that it is amended to reflect the relevant amendments made to the main contract. It is very unwise to attempt to take a short cut and incorporate the amendments made to the main contract by reference; difficulties may arise that are similar to those associated with a back-to-back subcontract.

The subcontract agreement

There is no fixed form for a subcontract agreement but, generally speaking, it will include:

  • the date on which the subcontract agreement is entered into
  • the name and address of the main contractor and the subcontractor
  • a description of the subcontract works
  • the recitals
  • the articles and
  • the attestation or execution of the subcontract, whether as a deed or under hand.

The subcontract agreement should record the date of the agreement. In many cases, wording along the following lines will be used:

'This subcontract agreement is made on [insert date (day, month and year)]'

The date of the subcontract agreement should be the final piece of information to be recorded in the subcontract, after all other parts of the subcontract have been completed and the main contractor and the subcontractor have signed or executed the subcontract. The date is generally inserted into the subcontract agreement by hand, in the space allocated to it.

The subcontract agreement will usually state the names and addresses of the main contractor and subcontractor. Ensure that the details are full and correct. For example, where the main contractor and the subcontractor are companies registered in the UK, the proper legal name of the company, the company number and its registered office address should be included. Such details can be obtained from the Companies House website. That website also contains useful information regarding overseas companies that have a branch in the UK.

When completing the addresses of the parties, check the provisions under the subcontract that concern giving notices or other communications. In some cases, notice provisions will identify the address to which notices are to be sent, or they may refer to the address stated in the subcontract agreement. If the latter applies, this address become significant for subcontract administration, which may not reflect the intention of the parties.

The subcontract works may be identified in a short description set out in the recitals or articles forming part of the subcontract agreement. This is the position in JCT DBSub 2016. Alternatively, a short description could be included in another part of the subcontract; for example, in NEC4 ECS it is included in the data.

It is not essential for a subcontract to contain recitals. Where recitals are used, they should set out background facts. For example, the recitals may record that the main contractor has entered into the main contract for the main contract works, and go on to record that the main contractor wishes the subcontractor to execute the subcontract works as part of the main contract works.

The recitals may also record that the main contractor has provided the subcontractor with a copy of the main contract, and that the subcontractor has provided the main contractor with pricing documents, such as a priced schedule of activities.

The parts of the subcontract that follow the recitals are usually preceded by an expression such as 'Now it is hereby agreed as follows'. In most cases, this will include the articles of agreement.

The articles of agreement contain important elements of the subcontract. They often identify the documents that make up the subcontract and the price for the subcontract works. The articles may also record the fundamental obligations imposed on the subcontractor and the main contractor: the subcontractor must carry out and complete the subcontract works, and the main contractor must pay the subcontractor.

The subcontract conditions are often incorporated into the subcontract by reference. In many cases, such incorporation is dealt with by way of an article. For example, JCT DBSub 2016 incorporates the Design and Build Sub-Contract Conditions 2016 (DBSub/C) by reference to such subcontract conditions being made in Article 1.

Particulars/data specific to the subcontract works

The particulars for a subcontract may include:

  • addresses for notices
  • programme requirements:
    • subcontract works off site
    • subcontract works on site.
  • attendances
  • payment:
    • due dates for payment
    • retention percentage
    • payment for materials off site
    • rates for daywork or agreed percentages for fees, etc.
  • levels of insurance required
  • the date from which changes in law are assessed (sometime known as the 'base date')
  • information on the dispute resolution procedure (e.g. the name of the adjudicator, the name of the adjudicator nominating body, etc.).

Scope

The fundamental obligation imposed on the subcontractor under the subcontract will be to carry out and complete the subcontract works. The specific wording to express this varies; for example, under 'General obligations', clause 2.1.1 of JCT DBSub 2016 states 'The Sub-Contractor shall carry out and complete the Sub-Contract Works', whereas under the heading 'The Subcontractor's main responsibilities', clause 20.1 of NEC4 ECS states 'The Subcontractor Provides the Subcontract Works'.

Whatever form of wording is used, the subcontract should identify the subcontract works accurately, completely and clearly.

Drafting a scope for the subcontract works is a difficult task; the following guidance may help:

  • Have a good understanding of the scope of the main contract works and its division into subcontract packages.
  • Discuss the scope of the subcontract works with all relevant members of the project team, to ensure there is a consistent understanding of what needs to be included in the scope of particular subcontract works.
  • Pay attention to relevant drawings and specifications. A well-drafted specification will often contain a good description of the work to be done by the subcontractor.
  • State that the scope of the subcontract works consists of carrying out and completing the construction and, where applicable, the design of all or part of the subcontract works.
  • Where applicable, state that the scope of the subcontract works includes the provision of all necessary resources (e.g. management, staff, supervision, labour, plant, fabrication, materials, goods, off-loading and distribution, setting out, testing and commissioning).
  • Identify the subcontract works with a general description and a comprehensive list of particular works (although the subcontract might be drafted so that the specific list does not limit the extent of the work included in the general description).
  • Where applicable, identify the scope of temporary works involved (e.g. support, protection, access arrangements, safety netting, provision of mock-ups, samples, etc.).
  • Consider whether the scope should include works that can be inferred from documents.
  • Where appropriate, use marked-up drawings to identify the scope and consider whether this task can be made easier with the use of Building Information Modelling (BIM).
  • Avoid including in the scope other features that are relevant to the subcontract works (e.g. information on programme, price, attendances, etc.).

The importance of discussing the scope with the project team should not be underestimated. In some cases, the primary responsibility for drafting the subcontract will sit with commercial or procurement staff, but all relevant members of the project team should have a hand in drafting the scope. This includes technical staff (e.g. project engineers) who are likely to have a good understanding of the nature of the works, the construction techniques to be used and the performance specifications, quality and similar requirements.

The subcontract should be drafted so that the interface between the subcontract works and other parts of the main contract works is clear. The best way of doing this will vary depending on the circumstances, but will often involve marked-up drawings and/or well-drafted descriptions.

For example, where a particular detail forming part of the main contract works is complex and involves work from several subcontractors (e.g. a detail that shows the interface between the structure, cladding and fire stopping), a marked-up drawing identifying the particular works in the detail that are included in the subcontract works can be produced.

The subcontractor's design responsibility

The extent of the subcontractor's responsibility for the design of the subcontract works should be clear from the subcontract. In some cases, particularly where the subcontractor is responsible for the whole design, this may be through the subcontract conditions or a similar statement that allocates full design responsibility to the subcontractor.

However, carefully consider whether the subcontractor is only responsible for completing the design, or is also required to adopt and assume responsibility for any existing design work. The latter arrangement is often imposed on the subcontractor, including where an equivalent arrangement is imposed on the main contractor under the main contract. In those circumstances, the subcontractor should take steps to ensure it is comfortable with the existing design even though it has been prepared by others (e.g. the employer's design consultants).

JCT DBSub 2016 sets out the extent of the subcontractor's design responsibility in the third recital. The recital needs to be completed by the parties whether the subcontract includes the design of none, some or all of the subcontract works. JCT DBSub 2016 also requires the subcontractor to comply with directions the main contractor gives for the integration of the subcontractor's design with the design for the main contract works as a whole.

NEC4 ECS sets out the extent of the subcontractor's design responsibility in clause 21.1 and a cross-reference to the subcontract scope, and assumes the parts of the subcontract works to be designed by the subcontractor are stated in the subcontract scope.

Where the subcontractor is designing part but not all of the subcontract works, that part should be described clearly. For example, it is not unusual for the subcontractor providing structural steelwork to design the steel-to-steel connections that form part of the structural steel frame. However, other connections may also be required, such as steel-to-concrete foundation connections or steel-to-concrete superstructure connections. Also, the main contractor may want the subcontractor to design gussets, bracing, stiffeners or trimmings for openings. Therefore, the description of works to be designed by the subcontractor should always be carefully considered, rather than simply relying on custom and practice.

Where a particular detail of the design requires input from a range of disciplines, consider using a design responsibility matrix, which sets out the particular area of responsibility for each discipline. The matrix is often used to identify the design input required from each discipline, which is then included in the subcontract. In cases where the matrix is clear and unambiguous, consider including the matrix in the subcontract, although in most cases this is not the preferred solution.

The standard of care that applies to the subcontractor's design should be set out in the conditions of the subcontract. The law will also imply terms into contracts for work and materials, such as a subcontract where the subcontractor is obliged to design and build the subcontract works. One of these implied terms is that, provided it is reasonable for the main contractor to rely on the subcontractor's skill and judgement, the subcontract works will be reasonably fit for its purpose.

It may be necessary to impose a fitness for purpose obligation on the subcontractor. However, this is often considered to be demanding on the subcontractor, and the subcontractor's responsibility for design is often limited to a particular standard of care. For example, clause 2.13.1 of JCT DBSub 2016 states that the subcontractor's liability for any inadequacy in its design is limited to the liability of an architect or other appropriate professional designer. NEC4 ESC adopts a similar approach in circumstances where its secondary Option X15 is used, but in other cases NEC4 ECS imposes a fitness for purpose obligation on the subcontractor, to the extent that the subcontractor is responsible for design and construction.

Attendances

Attendances are described in section 3.8.6. Some standard forms of subcontract address attendances - at least in part - whereas others leave it to the parties to address the matter. JCT DBSub 2016 deals with attendances in clauses 3.16 to 3.18, any by reference to item 7 of the particulars included in the subcontract. These provisions create a standard framework within which the parties can operate, but also allows the parties to discuss and agree a suitable allocation of attendances provided by the main contractor to the subcontractor. NEC4 ECS contains clause 25.2, under which the parties are obliged to provide services and other things as stated in the subcontract scope. These provisions largely leave it to the parties to discuss and agree attendances on a case-by-case basis.

It is sometimes thought that attendances can be addressed by a tick list, but in most cases this is insufficient and something more thorough - often a full and detailed schedule - is required.

Performance security

The purpose of performance security is to provide contractual rights and remedies, in favour of the main contractor, against a third party (such as a guarantor or a surety) if the subcontractor is in default under the subcontract.

Where robust procurement and selection procedures have been implemented, the requirement for performance security may be reduced. However, it is commercially advantageous for the main contractor to require the subcontractor to provide performance security, even if these procedures have been implemented. A commercial balance needs to be struck between the risk of the subcontractor failing to perform and the cost, if any, of performance security. Most subcontractors will incur a cost in providing a performance bond and will expect to pass that cost on to the main contractor.

The two types of performance security most commonly used are a parent company guarantee (PCG) and a performance bond. Other types of performance security are sometimes used, such as the standby letter of credit and the letter of comfort.

A PCG is a written undertaking provided by the parent company of the subcontractor stating that in the event of the subcontractor's default, breach or insolvency the parent company will assume the responsibilities, liabilities, etc. of the subcontractor under the subcontract, or pay for damages suffered by the main contractor. A PCG is often provided through a contract between the parent company and the main contractor, but other methods include:

  • The parent company may enter into the subcontract jointly and severally with the subcontractor.
  • The parent company may enter into the subcontract, but only to guarantee the performance of the subcontractor.

A performance bond is a written undertaking provided by a third party stating that in the event of the subcontractor's default, breach or insolvency, the third party will assume the liability for loss and damage of the subcontractor under the subcontract. The third party is sometimes known as the surety or guarantor, and is usually a bank or an insurance company.

Remember that the subcontractor's insolvency does not constitute a default or breach of the subcontract, although default or breach usually follow because the subcontractor is not in a position to proceed with the subcontract works. Some performance bonds may be drafted in such a way that they will not respond if the subcontractor becomes insolvent, but this is not always obvious. Therefore, ensure the performance bond is drafted so that it will respond in circumstances where the subcontractor is insolvent, such as through an express clause to that effect. Consider drafting the subcontract to expressly state that the insolvency of the subcontractor constitutes a default and/or breach of the subcontract.

There are two main types of performance bond:

  • on-demand bond
  • default bond.

An on-demand bond is an undertaking from the surety that it will pay a sum of money to the main contractor on demand. This is a primary liability as it may arise even where the subcontractor is not at fault under the subcontract.

A default bond is an undertaking by the surety to recompense the main contractor, up to a specified amount, in the event of a default by the subcontractor under the subcontract and is therefore a secondary liability.

Whether the subcontractor is obliged to provide an on-demand or default performance bond is a matter of commercial negotiation. On-demand performance bonds are common in international construction projects but less common in the UK.

If the main contractor considers the cost of performance security to represent good value for money, it may consider 'the more, the better' and seek a PCG and a performance bond. However, the subcontractor may not be willing to provide both. If it is necessary for the main contractor to decide between a PCG and a performance bond, it should consider the terms of each, as well as the identity and the financial strength of the parent company or surety. See Construction security and performance documents, RICS guidance note, for a commentary on the typical characteristics of PCGs and bonds, which can be considered when deciding between them.

This guidance note does not provide guidance on drafting the PCG or performance bond. Security documents have special characteristics, so legal advice should be taken concerning their form and content.

The subcontract should make clear whether the subcontractor is to provide a PCG, a performance bond, both or that no performance security is required. NEC4 ECS deals with performance security through secondary Options X4 (parent company guarantee) and X13 (performance bond). JCT DBSub 2016 does not contain provisions that deal with performance security, but where performance security is required it can be addressed in amendments to the included conditions. Key issues with enabling provisions are set out in Appendix 3.

A standby letter of credit is similar to an on-demand bond: it provides security for performance of the underlying obligation and is payable following a demand that complies with the standby letter of credit. Payment is conditional on a default or breach by the subcontractor, but the issuer (usually a bank) will not investigate. The issuer's obligation to make payment under a standby letter of credit is a primary obligation.

Note that a standby letter of credit differs from other letters of credit, which provide for payment by the issuer on behalf of the buyer to the seller following due performance of the contract, for example where materials or goods are delivered by a supplier to a contractor.

A letter of comfort is an assurance written to the main contractor affirming the subcontractor's ability and willingness to perform its obligations under the subcontract. The letter is often issued by the subcontractor's parent company or bank. However, in many cases a letter of comfort will have no legal effect so cannot act as performance security.

A letter of comfort may be used where the subcontractor is unable or unwilling to provide any other form of security. There may be several reasons for this, for example:

  • Guarantees, on-demand bonds and standby letters of credit are required to be noted in a company's accounts as liabilities, whereas no such requirement exists in the case of a letter of comfort.
  • The subcontractor's parent company may be prohibited by its own corporate governance or banking facilities from giving a PCG.
  • The subcontractor may have exhausted or reached the limit of its bonding facility.

Where the main contractor requires legally binding performance security, it should require the subcontractor to provide a PCG, performance bond or letter of credit. The main contractor should not accept a letter of comfort as performance security.

Collateral warranties and third-party rights from the subcontractor as warrantor

The circumstances in which collateral warranties or third-party rights may be required are described in section 3.8.8.

Where the subcontractor is required to enter into collateral warranties as warrantor, the subcontract should contain a suitable enabling clause with a number of key features:

  • a clear obligation on the subcontractor to execute and deliver collateral warranties to the main contractor
  • a period within which the subcontractor must execute and deliver the collateral warranties (in many cases considering the period within which the main contractor must procure the warranty under the main contract)
  • the identities/classes of the beneficiaries in whose favour the subcontractor is obliged to enter into collateral warranties
  • the form of the collateral warranty
  • where there is a requirement for the collateral warranty to be guaranteed - by the subcontractor's parent company, for example - the clause should identify that requirement as well as the identity of the parent company, whether by its name or its class (e.g. the 'ultimate' parent company).

The key features of an enabling clause requiring the subcontractor to grant third-party rights under the Contracts (Rights of Third Parties) Act 1999 are:

  • the identity of the parties in whose favour third-party rights are given (by name, as a member of a class or answering a particular description)
  • the way in which the third-party rights are granted should be expressed (e.g. by written notice)
  • a prescribed form of notice under which third-party rights are granted
  • the rights that are being granted to the third party, by identifying such rights in the enabling clause or setting them out in another document that forms part of the subcontract.

JCT DB Sub 2016 contains clause 2.26, which is an enabling clause that applies to collateral warranties and third-party rights.

Detailed requirements are to be identified in the Sub-Contract Rights Particulars. This is a separate document, which the main contractor should prepare and include in the subcontract as a numbered document. A model form for the Sub-Contract Rights Particulars is available on the JCT website.

Where a third party is entitled to third-party rights, those rights are vested in that third party on the date that the subcontractor receives notice from the main contractor to that effect (JCT DB Sub 2016 clause 2.26.3). Where the main contractor requires the subcontractor to enter into a collateral warranty, it must notify the subcontractor, and the subcontractor must execute and deliver the warranty to the main contractor within 14 days of the main contractor's notice (clause 2.26.4).

JCT DBSub 2016 expects the forms of collateral warranty will be JCT's own forms (e.g. SCWa/E, SCWa/F and SCWa/P&T). The forms of third-party rights are included in Schedule 6 of JCT DBSub 2016 and are very similar to the terms included in the corresponding collateral warranty.

NEC4 ECS adopts a different approach. Collateral warranties are not dealt with at all, so the subcontractor is not obliged to provide them. Third-party rights are dealt with under secondary Option Y(UK)3, which is a short clause. Clause Y3.1 incorporates the Contracts (Rights of Third Parties) Act 1999 into the subcontract. In order for third-party rights to be granted, the third party must be identified in the Subcontract Data along with the terms they can enforce.

It may be desirable for the subcontractor to procure collateral warranties from some or all of its sub-subcontractors and/or suppliers. The subcontractor may enter into sub-subcontracts with design consultants or specialists undertaking significant design or specialist construction work. In addition, the subcontractor may enter into supply contracts under which it purchases materials or goods. Where applicable, the subcontract should contain a suitable enabling clause with key features equivalent to those set out in this section. The form of warranty, which in many cases will be bespoke, should be identified. The form will often contain step-in rights in favour of the main contractor.

Neither JCT DBSub 2016 nor NEC4 ECS contain provisions to require the subcontractor to procure collateral warranties from sub-subcontractors or suppliers, so bespoke drafting is necessary to include such warranties.

Insurance

Construction insurance is a specialist area and practitioners should obtain the advice of specialist brokers on specific insurance arrangements for a project, particularly if the circumstances are unusual.

Intellectual property

Law and practice regarding intellectual property is complex, and it is best to take legal advice on the topic, but when drafting the subcontract consider properly addressing intellectual property (e.g. copyright licences, patents, etc.), particularly in relation to the requirements of the main contract. JCT DBSub 2016 and NEC4 ECS contain relatively straightforward provisions regarding intellectual property.

Payment systems

The latest edition of Interim valuations and payment, RICS guidance note, details the process of valuing work and making payments to the main contractor under a main contract. The principles there generally apply to making payments to the subcontractor under the subcontract, so can be referred to for further guidance. There are however some issues that specifically apply to subcontractors, and these are dealt with below.

Most projects operate a payment system based on monthly payments to both the main contractor and the subcontractor. Where the subcontractor is paid in periodic payments, the amount is based on the value of the work (including design work where applicable) completed by the subcontractor by the date on which the subcontract works are valued. In most cases, this arrangement is considered fair and reasonable as it gives adequate commercial protection to the main contractor by avoiding overpayment and generates a commercially sensible level of cash flow for the subcontractor.

Where the subcontractor is paid in stage payments, the subcontract should contain a number of priced work stages. The subcontractor is entitled to payment for a work stage when that stage is completed. Where stage payments are used, take care to see that the priced work stages are appropriate and capable of generating a commercially sensible level of cash flow for the subcontractor. If the work stages are drafted so that the time taken for the subcontractor to complete the work stages is excessive, the subcontractor might suffer from adverse cash flow - particularly if required to pay its labour and suppliers by way of periodic (e.g. weekly or monthly) payments.

JCT DBSub 2016 envisages the use of stage payments. The interim payment provisions included in clause 4.9 is stated as being subject to any agreement between the subcontractor and the contractor regarding stage payments.

NEC4 ECS envisages stage payments where Option A is used. In that case, the subcontract contains a priced activity schedule. Interim payments are calculated using the activity schedule, and the payment includes the price of both groups of and individual completed activities.

The payment period

This guidance note does not identify in detail the circumstances in which the Construction Act applies, other than to point out that it applies where the contract is a 'construction contract', i.e. an agreement with a person for any of:

  • carrying out construction operations
  • arranging for others to carry out construction operations, whether under subcontract or otherwise
  • providing that person's own labour, or the labour of others, to carry out construction operations.

Most of the main contracts and subcontracts covered by this guidance note will be 'construction contracts' as defined by the Act. However, there are some exceptions, such as the following:

  • Under the Act, construction operations do not include the assembly, installation or demolition of plant or machinery, or the erection or demolition of steelwork used to support or provide access to plant or machinery, on a site where the primary activity is power generation or water or effluent treatment. The Act therefore does not apply to contracts for such works.
  • The Act does not apply to a construction contract with a residential occupier.

The main contract that applies to these works will therefore not be subject to the Act. Importantly however, it is likely that subcontracts for such works will be subject to the Act, so the statutory regimes that will apply to the main contract and the subcontracts in these examples are likely to be different.

Where the subcontract is subject to the Construction Act, the main contractor and the subcontractor are free to agree when payments become due and the length of the period between the date the payment becomes due and the final date for payment.

For interim payments, JCT DBSub 2016 fixes an interim valuation date, with the due date 12 days after the interim valuation date and the final date for payment 14 days after the due date (clauses 4.6.1 and 4.7.1). Therefore, the subcontractor is entitled to be paid 26 days after the date on which the subcontract works are valued.

NEC4 ECS fixes an assessment date (which is equivalent to an interim valuation date), with the due date 14 days after the assessment date and the final date for payment 14 days after the due date (clause Y2.2), meaning the subcontractor is entitled to be paid 28 days after the date on which the subcontract works are valued.

When deciding periods for payments to the subcontractor, consider both the period between the valuation and the due date, and the period between the due date and the final date for payment.

The periods for JCT DBSub 2016 and NEC4 ECS are related to the timescales for payment in JCT DB 2016 and NEC4 ECC respectively. These payment periods are designed to work in a way that enables cash to flow from the employer to the main contractor, and then to the subcontractor, in a commercially sensible way. However, where the main contract is amended to increase the payment periods, or where the main contractor wishes to increase the payment periods in its subcontracts for commercial reasons, the payment period in the subcontract becomes a matter of commercial negotiation.

The first due date for payment

It is common for work to commence on site almost immediately after the main contract is entered into. The first due date for payment is often shortly afterwards, generally within one month of the date of the main contract. The employer usually views this as an acceptable payment regime because it can see that work is progressing on site, and can be valued and paid for with interim payments.

In some cases, the position with the subcontractor will be no different: it will make sense for the first due date to occur after the subcontractor has begun the subcontract works on site. However, in other cases the situation may be very different. For example, the subcontractor may be appointed by the main contractor shortly after the main contract is entered into, so that the subcontractor can prepare a design for the subcontract works to enable it to be integrated into the design for the main contract works as a whole. But the subcontractor might prepare the design a very long time before it is due to begin work on site. If the first due date for payment under the subcontract is fixed at a date that is after the subcontractor starts work on site, the subcontractor will not be entitled to be paid for design work until then. This may have adverse effects on the subcontractor; take this into account when deciding the first due date for payment under the subcontract.

JCT DBSub 2016 envisages the first interim valuation date being after the subcontract works have commenced on site, but it also contains provisions that allow the first interim valuation date to be earlier than the date the subcontract works begin on site, allowing for a sensible degree of flexibility.

NEC4 ECS envisages that the first assessment date will be fixed by the main contractor, but it will be linked to the starting date stated in the subcontract. The starting date does not need to be the date on which the subcontract works begin on site; it could be an earlier date. Therefore, NEC4 ECS also allows for a sensible degree of flexibility.

Advance payment

An advance payment is a payment that is made by the main contractor to the subcontractor before the subcontractor carries out any of the subcontract works. Advance payments are not a common feature of subcontracts, nor is it common for the main contractor to agree to make an advance payment to the subcontractor. However, an advance payment may be appropriate and may bring commercial benefits to the project where the subcontractor will incur high costs on entering into the subcontract, for example by mobilising expensive plant equipment (including purchasing it where necessary) or purchasing expensive materials for temporary works.

The provisions that govern advance payments are often dealt with through optional or new/amended clauses. These should deal with several issues that arise due to the unusual nature of advance payments. These are set out below.

The subcontract should identify the amount of the advance payment, which should take into account the subcontractor's costs that have made the advance payment necessary. The drafting should make it clear whether the advance payment is subject to retention. Also, consider whether the advance payment is liable for VAT.

The subcontract should identify when the advance payment will be made. This is to give certainty to the payment obligation. As an advance payment has commercial risks for the main contractor, the subcontract should identify any conditions that must be satisfied before the advance payment is made, for example the provision of an advance payment bond, or proof that the subcontractor has completed certain desktop activities or placed an order for a major plant item if this is the reason for making the advance payment.

The subcontract should contain provisions for the subcontractor to reimburse the main contractor in instalments for the advance payment, and that the main contractor is entitled to deduct these instalments from amounts due to the subcontractor in interim and final payments.

The requirement to reimburse the advance payment in instalments is because in most cases the payment provisions in the subcontract will require that the amount due in any particular payment takes into account the amount previously paid.

If these provisions are applied when an advance payment has been made, it will defeat the intended purpose as the subcontractor will not be paid until the advance payment has been repaid in full.

Therefore, where an advance payment is made the subcontract should contain provisions for reimbursement in instalments. A good rule of thumb is to set the reimbursement profile so that the amount of the advance payment is reimbursed within the first half of the period for completion for the subcontract works on site. This rule of thumb gives the subcontractor the benefit of the advance payment and cash, while at the same time reducing the risk to the main contractor of making the advance payment.

Consider ensuring that the advance payment provisions deal with the position in which a large proportion of the subcontract works is omitted, the subcontract is terminated or the subcontractor becomes insolvent. In most cases, it will be appropriate for the amount of the advance payment that has not been reimbursed on the date of the omission, termination or insolvency to become due for reimbursement immediately or shortly afterwards.

An advance payment bond is a bond that responds in circumstances where the subcontractor has not reimbursed the main contractor for an instalment of the advance payment in accordance with the subcontract. Traditionally, such bonds are on-demand bonds. When making a demand under the bond, difficulties can arise if the reimbursement provisions in the subcontract are not clear, or there is room for the subcontractor or surety to argue that the subcontractor has not failed to reimburse the main contractor in accordance with the subcontract. Provisions that include specific amounts to be reimbursed on specific dates are likely to give greater certainty than provisions that require the reimbursement to be a percentage of the amount due, so using the former provisions is likely to give greater certainty that the surety will respond and pay when a demand is made under the advance payment bond.

JCT DBSub 2016 envisages that an advance payment will not be made to the subcontractor, so it does not contain provisions for advance payments. Therefore, any agreement between the main contractor and the subcontractor regarding an advance payment will need to be addressed through bespoke amendments to JCT DBSub 2016. In those circumstances, carefully consider the relationship between the bespoke advance payment provisions and the standard payment provisions included in JCT DBSub 2016.

NEC4 ECS includes advance payment provisions in secondary Option X14. However, consider whether X14 covers the relevant issues in specific circumstances. NEC does not provide a form of advance payment bond.

Retention

Retention is a sum of money deducted by the main contractor from payments to the subcontractor and held by the main contractor as security against defects in the subcontract works. Retention acts as motivation for the subcontractor to complete the subcontract works and make good any defects.

Where retention is deducted from payments made to the main contractor under the main contract, it is conventional for the main contractor to also deduct retention from payments to the subcontractor under the subcontract. However, what should happen if retention is not deducted from payments made to the main contractor? Should the subcontract still permit the deduction of retention from the payments to the subcontractor? On the face of it, the answer is no, on the basis that here the main contract and the subcontract should be back-to-back. But that approach is too narrow, and it ignores other important commercial factors. For example, retention might not be deducted under the main contract because the employer decided that retention was simply not necessary. Perhaps the employer had adequate security against the main contractor by other means - the main contractor's strong balance sheet, a parent company guarantee or a performance bond perhaps. But the position under the subcontract might be very different; the subcontractor might have a weak balance sheet, and it might be unable or unwilling to provide a parent company guarantee or a performance bond. In those circumstances, retention would be the main contractor's only form of security, so it would be understandable for the subcontract to ensure that retention can be deducted.

JCT DBSub 2016 (clause 4.12) and NEC4 ECS (clause X16) contain mechanisms for retention. However, the main contractor should consider when retention should be released. Where the subcontract is subject to the Construction Act, the subcontract cannot ensure that payment of retention to the subcontractor is linked to the release of payment under the main contract. Therefore, the main contractor and the subcontractor should agree, and the subcontract should state, when retention is to be released to the subcontractor. This will be a matter of negotiation.

Payment for materials and goods on site

Subcontracts often contain provisions entitling the subcontractor to payment for materials and goods on site. There are two main reasons for this:

  • The provisions help the subcontractor's cash flow.
  • Making payments for materials and goods can be a form of security when they become the property of the main contractor.

Paying for materials and goods on site can be positive, but it can cause risks for the main contractor: the materials and goods may never actually be used for the subcontract works or they may be lost, damaged or stolen, and if the subcontractor did not own them, they may be repossessed by their owner. Common arrangements to mitigate these risks are set out below:

  • The materials and goods must be on or adjacent to the site of the main contract works. In this context, 'adjacent' generally means at a property that is very near to the site and controlled by the main contractor or employer.
  • They must be intended for incorporation into the subcontract works, and in accordance with the subcontract.
  • They can be paid for only if they are reasonably, properly and not prematurely delivered to the site.
  • They must be adequately protected against loss or damage, including certain risks such as weather and theft.
  • They should not be paid for unless the subcontractor has provided proof to the main contractor's satisfaction that property in the materials and goods is vested in the subcontractor, and that property will pass to the main contractor in accordance with the subcontract.

JCT DBSub 2016 (clause 4.9.1.2) contains conditions for payment similar to these.

NEC4 ECS takes a different approach. For example, where Option A applies (a priced subcontract with an activity schedule), the subcontractor will be entitled to payment for materials on site if this is included in the activity schedule. However, NEC4 ECS does not contain the types of conditions for payment set out above, so consider including these in the subcontract; alternatively, the relevant activities in the activity schedule should be drafted to satisfy at least some of the conditions.

The subcontract should also state that materials and goods that are on or adjacent to the site must not be removed by the subcontractor without the main contractor's consent, and that the risk of loss or damage to the materials and goods remains with the subcontractor, even if they have been paid for and property has passed to the main contractor.

The subcontract should state when property in materials and goods passes to the main contractor. The main contractor may require this when materials and goods are delivered to or adjacent to the main contract works, whereas the subcontractor might argue this should only happen when the main contractor has paid for the materials and goods. However, the main contractor and the subcontractor may not be able to negotiate this in a vacuum; the main contract will almost certainly be relevant. For example, where the main contract is JCT DB 2016, property in materials and goods on site passes to the employer when their value has been included in an interim payment (clause 2.21). Clause 3.4.2.1.1 of JCT DB 2016 requires the main contractor to include in its subcontracts a clause stating that where the value of materials and goods has been included in an interim payment, and that interim payment has been paid by the employer to the main contractor, the materials and goods become the employer's property, and the subcontractor will not deny that they have become the employer's property. Clause 2.15.2 of DBSub 2016 contains provisions that meet the requirements of clause 3.4.2.1.1.

Where the main contractor pays the subcontractor for materials and goods on site before their value is included in an interim payment under the main contract, they should become the main contractor's property. However, the drafting of the subcontract might not give the main contractor adequate commercial protection in terms of passing property to it for materials and goods on site. The subcontractor might have purchased the materials and goods under supply contracts that stipulate the materials and goods remain the property of the supplier until paid for in full by the subcontractor, or even until all debts owed by the subcontractor to the supplier are settled in full. These are called 'retention of title' clauses. If the supplier has not been paid by the subcontractor for the materials and goods, the retention of title clause may override a claim that property in the materials and goods has passed to the main contractor under the subcontract.

In order to establish whether property has passed to the subcontractor, it is essential to investigate the contractual chain (sub-subcontracts and the various supply contracts) and the proprietary rights for the materials on site. In many cases this will not a straightforward task, and even where the task is carried out properly and professionally, the legal position will not be certain. Therefore, take care when dealing with this and consider taking specialist advice.

Payment for materials and goods off site

Subcontracts sometimes contain provisions entitling the subcontractor to be paid for materials and goods off site. However, their use is sometimes optional and/or the application of the provisions will apply only to certain materials and goods identified in the subcontract for payment when off site (often called 'listed items').

The main contract will be relevant. Note that in many cases - particularly where the main contract works are low value - the employer may decide that, under the main contract, the main contractor will not be entitled to payment for materials and goods off site. This may be because payment for materials and goods off site exposes the employer to unacceptable commercial risk, or the cost of administering the contractual provisions associated with such payments is too expensive.

The main contract may contain a list of off-site materials and goods for which the employer will pay the main contractor. Commercial pressures may mean the main contractor will not agree to include a list in the subcontract, unless those materials and goods are also listed in the main contract. However, in some cases the subcontractor may say that payment for materials off site is very important to its business; for example, where the subcontractor is a medium-sized company and is purchasing materials from a large international company, the supplier may have used commercial leverage to secure a short payment period. In many cases, the main contractor will have greater commercial leverage, so the subcontractor may have to accept it will not be paid for materials and goods off site. In that case, the subcontractor may have to consider other approaches, such as altering its price for the subcontract works.

The commercial risks to the main contractor of agreeing to pay for certain materials and goods when they are off site are similar to the risks of paying for materials and goods on site. In addition, the main contractor does not have sight or possession of materials and goods that are off site; they are in effect beyond its control. Therefore, the risk to the main contractor of paying for materials and goods off site is greater than when they are on site.

The risk to the main contractor of off-site materials and goods can be greater than the risk to the employer of paying the main contractor for them because if problems arise after they have been paid for (e.g. they are stolen), the employer will simply look to the main contractor to procure replacements. The employer may have the benefit of security that is more than adequate to cover this risk, whereas the main contractor may have little or no security from the subcontractor.

Where the main contractor agrees to pay for certain materials and goods off site, in order to mitigate the risks, the subcontract should include conditions that deal with payments for materials off site and/or must be satisfied before the main contractor is obliged to pay. Common arrangements are set out below:

  • They should be identified in the subcontract - often uniquely (e.g. a particular air handling unit) rather than not (e.g. aggregates).
  • The subcontract should identify the address where the materials and goods will be stored off site.
  • The subcontractor must provide proof to the main contractor's satisfaction that the materials and goods off site are, and will remain, insured against loss or damage for their full value up to the date on which they are delivered to, or adjacent to, the main contract works. The policy should protect the interests of the employer, the main contractor and the subcontractor.
  • There should be conditions that apply at the address where the materials and goods are stored, including that they must be:
    • identified as being held to the order of the main contractor (and/or the employer if appropriate) and destined for the main contract works
    • set apart from other items
    • clearly and visibly marked, individually or in a set, by letters or figures to a predetermined code
    • protected against loss and damage.
  • The subcontractor should warrant that:
    • the main contractor and employer may enter the premises where the materials and goods are stored to inspect or remove them
    • it will deliver the materials and goods to the site when instructed by the main contractor
    • it will not move the materials and goods from the storage address without the main contractor's consent.
  • Where applicable, the subcontract should state the subcontractor must provide a materials off site bond, vesting certificate or vesting agreement in favour of the main contractor (see below for descriptions).

JCT DBSub 2016 (clause 4.11) contains similar conditions to some of these, but consider supplementing it with some or all of the above conditions that are not included.

NEC4 ECS takes a different approach. Where Option A (a priced subcontract with an activity schedule) applies, the subcontractor will be entitled to payment for materials off site if that is provided for in the activity schedule (clause 50.2) or the subcontract identifies them for payment (clause 71.1). How identification happens is not stated, but it is feasible that the activity schedule, subcontract scope or Subcontract Data could be used for that purpose. NEC4 ECS does not contain conditions precedent to payment of the type set out above but they could be inserted into the subcontract, for example through a Z clause or suitable wording in the subcontract scope.

The subcontract should state that the risk of loss or damage to the materials and goods off site remains with the subcontractor, even if they have been paid for and property has passed to the main contractor.

There are further issues when the materials and goods are not in the same territory as the site of the subcontract works, manufactured from materials obtained from various territories and/or subject to contracts under different legal systems. This may make it difficult for the subcontractor to provide proof of ownership. It will also be almost impossible to establish the legal position that would apply if a particular supplier in the contractual chain becomes insolvent. Therefore, the main contractor may be reluctant to agree to pay for materials off site if they are stored in another territory.

A vesting certificate is a written confirmation from the subcontractor to the main contractor that the property in certain materials and goods will pass from the subcontractor to the main contractor when a specified event occurs (e.g. payment).

A vesting agreement between the subcontractor and main contractor deals with the passing of property in a similar way to a vesting certificate, but also contains terms that cover some or all of the issues that should appear in the materials and goods off site provisions included in the subcontract.

In most cases, a vesting agreement will be more useful than a vesting certificate because it can cover property as well as other issues important to the main contractor. However, in many cases it will be more difficult and take longer to procure a vesting agreement - particularly because a vesting certificate can be issued by the subcontractor in a fairly straightforward manner, whereas as vesting agreement needs to be negotiated, agreed and executed. The potential advantages of a vesting agreement should be weighed against this. As a vesting agreement is more sophisticated than a vesting certificate, the following paragraphs focus on the agreement.

Where the subcontract contains sophisticated provisions regarding the passing of property and payment for materials and goods off site, a vesting agreement will not be essential. For example, JCT DBSub 2016 contains detailed provisions that do not require a vesting agreement. However, if the subcontract contains no or inadequate provisions for this, a vesting agreement may be useful.

A vesting agreement can benefit the main contractor. For example, where the subcontractor is solvent but is progressing the subcontract works so poorly that the main contractor intends to terminate the subcontract, a vesting agreement that contains express rights for the main contractor to enter the storage address and remove materials and goods would be an advantage. Provided the vesting agreement is well-drafted, it is likely to be enforceable by the courts.

In some cases, a vesting agreement will not be effective. If the subcontractor's financial position is weak and there are signs that it will become insolvent, the materials and goods referred to in a vesting agreement may disappear from the off-site storage address (removed by an unpaid supplier or stolen).

A poorly drafted vesting agreement can be a problem for both main contractor and subcontractor. For example, where the terms of the vesting agreement are inconsistent with the terms of the subcontract, this could cause legal uncertainty.

Whether the subcontract should contain provisions that require a vesting agreement is a matter of commercial judgement based on the contents of the subcontract and the circumstances.

A materials off site bond responds in circumstances where the subcontractor has been paid for materials or goods off site but the subcontractor has not delivered them to or adjacent to the main contract works. Traditionally, they are on-demand bonds.

JCT DBSub 2016 contains a form of materials off site bond that has been agreed between JCT and the British Bankers' Association. NEC4 ECS does not contain a form of materials off site bond.

Paying for materials and goods off site involves complex contractual provisions and risks. Possible alternatives include:

  • Where the market is busy and lead-in times for particular materials or goods are long, it may be commercially sensible for the main contractor to enter into a supply contract with a particular supplier so that the materials or goods are secured by the main contractor at a suitably early stage of the project. The supply contract can then be novated to the subcontractor later.
  • If the payment is for procuring materials that will be worked on exclusively on the subcontractor's premises to form fabricated goods, there may be an advance payment. If so, advance payment provisions should be included in the subcontract and used instead of paying for materials and goods off site.

Entitlement to additional payment

The subcontract should contain provisions that set out the circumstances in which the subcontractor will be entitled to additional payment, and how the amount should be calculated. If the drafting of these provisions is not clear, it may cause later disputes.

These are the key issues to address in the subcontract regarding entitlement to additional payment:

  • variations/changes
  • loss, expense and/or damages
  • provisional sums
  • changes in law
  • unforeseen physical conditions
  • suspension of work
  • restoration of lost or damaged work
  • fluctuations
  • acceleration
  • preparation of quotations
  • insurance premiums (e.g. when the subcontractor has taken out insurance because the main contractor is in breach of the subcontract by failing to do so)
  • late payment
  • interest.

Notices and time bar clauses

Notice provisions assist the proper management of the subcontract and main contract works. For example, if an ongoing act or omission by the main contractor is causing, or is likely to cause, the subcontractor to incur loss and/or expense, and the subcontractor notifies the main contractor of this, the main contractor is given the opportunity to investigate and take steps to solve or mitigate the problem. This is good for all parties, particularly if the notice is given sooner rather than later.

A time bar exists where the relevant clause requiring the notice contains provisions that the subcontractor loses its right to additional payment if it does not give proper notice on time. The effect of a time bar could be considered unduly harsh on the subcontractor because a straightforward failure to give notice could cause the subcontractor to suffer financial loss. On the other hand, it may have the positive effect of motivating the subcontractor to sharpen up its administration of the subcontract works and ensure that it issues its notices on time, so that the project is better managed and controlled overall.

Whether the subcontract contains time bars will be a matter of negotiation between the main contractor and subcontractor. However, there are three circumstances in which the inclusion of time bars in the subcontract should not be controversial:

  • Where the main contract contains a time bar, the subcontract should contain a similar time bar, although it makes sense for the period stated in the subcontract to be shorter. This allows time for the main contractor to pass on the instruction to the subcontractor, the subcontractor to give notice to the main contractor and the main contractor to give notice to the employer within the required period. This principle is recognised in the construction industry; for example, under clause 61.3 of NEC4 ECC (the main contract) the main contractor is obliged to give notice within 8 weeks, whereas in NEC4 ECS (the subcontract) the subcontractor is obliged to give notice within 7 weeks.
  • Where the main contract works are subject to close financial control or the employer has budget constraints, the subcontract should contain time bars. This promotes a 'no surprises' policy and allows the main contractor to keep the employer informed of cost increases in a timely manner. This is in all parties' interests, including the subcontractor's. If the employer's budget is exceeded, the commercial reality is that the main contractor and subcontractor might have difficulty securing payment.
  • Where the main contractor is employed under a lump sum design and build contract that allows the main contractor some flexibility in the way it completes the design, cost control at the main contractor level will be important. In those circumstances, the inclusion of a time bar clause in the subcontract may be appropriate.

Where it is agreed that the subcontract will contain time bar clauses, the following should be borne in mind for interpretation and drafting:

  • time bar clauses:
    • are treated as limitation clauses (they limit the main contractor's liability)
    • are construed strictly and contra proferentum.
  • time bar clauses should:
    • be clearly drafted
    • state the precise period within which the notice is to be served (the period should be reasonable and not unrealistically short)
    • make plain with express wording that unless the notice is given with the specified period, the subcontractor will lose its rights under the clause.

Programme information in subcontracts

Carefully consider the commencement, progress and completion of the subcontract works when drafting the subcontract so that they are consistent with the overall programme-related requirements for the main contract works. If the programme information in the subcontract is not appropriate, it can cause delays and disruption in the main contract works, and disputes as a result.

The subcontractor must complete the subcontract works in accordance with the subcontract (e.g. within an agreed period or by an agreed date), but the general rule is that unless otherwise dealt with in the conditions of the subcontract, the way in which the subcontractor carries out the subcontract works (e.g. sequence, rate of progress, etc.) is a matter for the subcontractor to decide. However, it is common for the subcontract to include express terms that impose specific obligations on the subcontractor regarding the progress of the subcontract works that override this. There are a number of ways in which this can be done.

First, consideration can be given to including an obligation on the subcontractor to progress the subcontract works in accordance with a specific programme included in the subcontract. However, this solution can lead to problems, for example:

  • If the subcontractor is prevented from complying with the programme, the progress-related obligation might fall away and not be replaced.
  • The main contractor might not be empowered to re-sequence or bring particular works forward if the progress of the main contract works is faster than originally planned.
  • The solution can easily lead to differences between the main contractor and subcontractor, as each party might consider the existence and content of the programme to provide evidence for its views and claims.

Second, the subcontract can impose an obligation on the subcontractor to carry out the subcontract works 'reasonably in accordance with the progress of the main contract works'. This is a fairly flexible solution and is found in some JCT subcontracts, such as DBSub 2016 (clause 2.3) and ICSub 2016 (clause 2.2). Properly construed, such an obligation is likely to include an obligation that the subcontractor must not unreasonably interfere with any other works that can conveniently be carried out at the same time.

Third, the subcontract can require the subcontractor to proceed 'regularly and diligently' (e.g. clause 20.2 of JCT MPSub 2016) or 'with due expedition and without delay' (e.g. clause 8.1 of FIDIC Sub-Contract 2011, the Red Book subcontract).

Fourth, the subcontract can impose obligations on the subcontractor to meet a particular requirement by a particular date or within a particular period. This is sometimes referred to as an obligation to meet a condition by a key date (see NEC4 ECS, for example). Where these provisions are used, it is important to bear the following in mind:

  • Drafting the condition to be met by the key date is not a straightforward task. If the description of the condition is not clear, ambiguity will make it difficult for the subcontractor to know what work has to be done and the purpose of the key date will be undermined.
  • The key date may be stated as a date but is more likely to be a period. For example, it could be a period from the date on which the subcontractor is required to start the subcontract works on site.

Fifth, the subcontract may contain further details of the requirements for the progress of the subcontract works. For example, JCT DBSub 2016 uses this to deal with many progress requirements, such as the timing of the delivery of samples, materials or goods; early works; periods for specific aspects (e.g. built-in items or testing); the sequence of the subcontract works or operations forming part of the subcontract works; specific interfaces with other trades; the removal of temporary works (e.g. hoists and tower cranes); and requirements to leave parts of the subcontract works incomplete and associated return visits.

Sixth, the subcontract may contain an obligation on the subcontractor to carry out the subcontract works in accordance with any instructions that the main contractor may give.

Dividing the subcontract works into sections

Consider the merits of dividing the subcontract works into sections. Sections may reflect the division of the main contract works, but that is not essential.

Dividing the subcontract works into sections is not a straightforward task. Ensure that:

  • the subcontract works in each section add up to the whole of the subcontract works
  • the timing of the subcontract works in each section is compatible with every other section, particularly where work in one section relies upon the progress or completion of work in another section
  • each section includes any applicable testing and commissioning.

JCT DBSub 2016 expects that where the subcontract works are divided into sections, they will be the same as the sections of the main contract works. If not, the conditions should be amended.

NEC4 ECS allows the subcontract works to be divided into sections using secondary Option X5.

Subcontract works off site

In many cases, it will be appropriate for the subcontract to include a period for subcontract works carried out off site prior to commencing on site. This work will vary depending on the circumstances. Typically, however, such works may include:

  • the subcontractor preparing design drawings or fabrication drawings
  • obtaining relevant approvals for the subcontractor's drawings and designs
  • procuring materials and goods
  • carrying out fabrication works
  • constructing, inspecting, testing and approving test panels and samples off site

Carefully consider the duration of the off-site period and the work to be done. This necessarily includes coordinating the works with other works that need to have progressed or completed to enable the subcontractor's off-site works to proceed in accordance with the subcontract.

JCT DBSub 2016 deals with the programme for off-site works in items 5.1-5.3 of the Sub-Contract Particulars. In particular, it allows periods for:

  • the subcontractor to prepare drawings prior to submission for comment
  • the main contractor to provide initial comments on the submitted drawings
  • the subcontractor to procure materials, fabricate and deliver materials to site.

NEC4 ECS (Subcontract Data - Part One) expects the subcontract to contain a date when the subcontractor will start its works (which may be off-site works), and the date when the works start on site. This produces an off-site period, and the work to be done in that period should be addressed in the subcontract.

Subcontract works on site

Regarding the commencement of the subcontract works on site, it is common for the subcontract to contain:

  • a requirement for the main contractor to give the subcontractor notice of the date on which the subcontractor is required to commence work on site, with the notice period being stated in the subcontract
  • the earliest and latest date on which the subcontract works will commence work on site - often referred to as a 'commencement window'.

This arrangement reflects the fact that when the subcontract is entered into, it might not be practical to fix the precise date on which the subcontract works will commence on site.

The period of notice to commence will need to be agreed by the main contractor and the subcontractor. The main contractor might prefer a relatively short period (say one week), whereas the subcontractor might prefer a longer period (say two to four weeks). Clause 20.1 of JCT MPSub 2016 expects that the main contractor will give the subcontractor notice of the date on which access to the site will be given, stating the period of that notice in the Sub-Contract Particulars. If no period is stated, the default period is 7 days.

The commencement window will also need to be agreed, and its length will depend on the specific circumstances. Ensure that if delays prevent the subcontractor from commencing work on site until after the latest commencement date, this does not affect the subcontractor's obligation to carry out and complete the subcontract works once it is possible to commence.

The subcontract should contain a period for completion of the subcontract works on site, or at least provisions through which that date can be fixed. Clarify whether the period refers to calendar weeks or working weeks. The period should begin on the date the subcontractor is required to begin work on site. Where the subcontract works are divided into sections, a period should be given for each section.

JCT DBSub 2016 expects the period for completion to be stated in item 5 of the Sub-Contract Particulars.

NEC4 ECS expects a completion date to be stated in Subcontract Data - Part One. However, this can be converted to a period if the date of commencement of the subcontract works on site cannot be stated in the subcontract.

The subcontract should contain provisions that determine whether the subcontract works have been completed. JCT DBSub 2016 adopts the concept of 'practical completion' and does not expect completion criteria to be stated. However, the main contractor and the subcontractor can agree what is meant by practical completion, or at least identify key works that must be completed as a pre-condition to practical completion.

NEC4 ECS refers to 'Completion', and expects the main contractor and subcontractor to state in the subcontract scope all the work required for completion.

Defects

For the purpose of this section, a defect is something the subcontractor is responsible for that is not in accordance with the subcontract (e.g. in design, materials or workmanship) and is discovered after completion of the main contract works. Defects range from relatively minor (such as a small spot of paint on a carpet tile) to extremely significant items (such as defective foundations, which may undermine the structural stability of the whole main contract works). Although the construction industry recognises that defects should be prevented, they do occur so the subcontract should contain provisions that deal with them.

The expressions 'patent defect' and 'latent defect' are used in the construction industry. Those expressions can cause confusion, and it is useful to be able distinguish between them. It is suggested that a 'patent defect' is one that is detectable, even if it is not detected by a particular individual when inspecting the work in question. A 'latent' defect, by contrast, is concealed or hidden. In order for a defect to be latent, it must be one that would not be discovered during the type of inspection that would reasonably be expected in the circumstances.

The obligation/entitlement to make good defects

A defect usually constitutes a breach of the subcontract, and the subcontractor will be liable for damages. However, the subcontractor will not necessarily be obliged to make good the defect because the obligation on the subcontractor usually ends on completion of the work. Similarly, the subcontractor will not usually have the right to insist on making good its defects. Therefore, if the main contractor expects the subcontractor to be required to make good defects, the subcontract must contain a clause to that effect. It is also sensible for the subcontract to give the subcontractor the ability to make good its defects because this allows the subcontractor to mitigate the effect of its breach.

Consider the period for which the subcontractor's obligation and entitlement to make good defects will apply. This is sometimes called the 'defects liability period' or the 'rectification period'. In many cases, the period is agreed to be 6, 12 or 24 months. The period is subject to agreement, but there may be other factors that influence it; for example, where the main contract works are subject to a separate standalone warranty scheme that is also relevant to defects, consider any periods that apply to that scheme when deciding the period under the subcontract. This can occur where the main contract works are residential and subject to a new homes warranty. In that case, the warranty may state that in the first 24 months after completion, the homeowner should contact the developer or contractor if they believe their home has not been constructed to the required standard. On this basis, it would be sensible for the defects liability period in the subcontract to be at least 24 months.

There may be circumstances where the subcontractor does not make good its defects, so the subcontract should ensure the main contractor is entitled to make good defects if the subcontractor fails to do so.

Not all defects are equally significant, and not all defects need to be made good as quickly as others. When drafting the subcontract, the best thing to do is classify defects based on significance and allocate suitable periods for making good based on this.

Consider the way in which the subcontract provides security to the main contractor regarding defects. The conventional form of security is retention. However, parent company guarantees and bonds may also provide security.

Although the subcontract should include provisions for managing and making good defects (and can include security provisions for defects), it is important that this does not prevent other remedies that the main contractor would otherwise have in relation to defects, e.g. a remedy in damages.

For example, the subcontract should not state that the main contractor's right to employ others to make good defects and recover the resulting costs from the subcontractor is the main contractor's only remedy. Similarly, the existence of the defects liability period should not impact on the limitation period under the subcontract.

JCT DBSub 2016 and NEC4 ECS contain sophisticated provisions for defects and making good. Although the two forms approach the issue in different ways, they are both effective.

Suspension of the subcontract works

The main contractor does not have an inherent right to suspend the subcontract works. However, there are three main circumstances in which the main contractor may want to do so:

  • where there is an emergency
  • for convenience
  • if the main contract works have been suspended under the main contract.

The right of suspension can be addressed through an express clause that empowers the main contractor to issue an instruction requiring the subcontractor to suspend the subcontract works. The clause should also address:

  • responsibility for protecting the subcontract works during the suspension
  • the consequences of suspension in terms of the subcontractor's entitlement to additional time and money
  • the way in which the suspension can come to an end (e.g. an instruction by the main contractor)
  • the maximum period of suspension before a right of termination arises.

JCT DBSub 2016 focuses on three main suspension circumstances:

  • Clauses 3.21 and 3.22 apply where the main contractor has suspended any of its obligations under the main contract. Under clause 3.22.1, the main contractor can direct the subcontractor to cease carrying out the subcontract works. Under clause 3.22.2, if the main contractor resumes work under the main contract, it can direct the subcontractor to resume the subcontract works.
  • Under clause 3.10 of JCT DB 2016 the employer is entitled to issue instructions regarding the postponement of any work under the main contract, and clause 3.4 of JCT DBSub 2016 expects this instruction to be passed on to the subcontractor through a direction from the main contractor.
  • The subcontract provides for suspension if the subcontractor becomes insolvent (clause 7.5.3.1). Where the subcontractor is insolvent, the subcontractor's employment is not terminated automatically. Instead, the subcontractor's obligation to carry out the subcontract works is suspended, which allows the main contractor and the subcontractor (or its insolvency practitioner) an opportunity to make arrangements for the subcontract works to be completed through agreement or a continuation contract.

NEC4 ECS states (in clause 34.1) that the main contractor may instruct the subcontractor to stop or not start any work. This amounts to a right for the main contractor to suspend the subcontract works. Clause 34.1 also entitles the main contractor to instruct the subcontractor to re-start stopped work or start work that has not started.

The subcontractor does not have an inherent right to suspend the subcontract works. There are two main circumstances in which the subcontractor may want to do so:

  • where the subcontractor has not been paid on time by the main contractor
  • where the main contractor becomes insolvent.

Section 112 of the Construction Act entitles the subcontractor to suspend the performance of some or all of its obligations if the main contractor has failed to pay a sum by the final date for payment, and that failure has continued for at least 7 days after the subcontractor has given notice of its intention to suspend to the main contractor.

JCT DBSub 2016 deals with both circumstances through clause 4.8.1 (suspension for non-payment) and clause 7.10.2.2 (suspension on insolvency).

NEC4 ECS does not contain express provisions permitting the subcontractor to suspend performance for non-payment. Instead, it relies on the right under section 112 of the Construction Act.

Entering into the subcontract

Compiling the subcontract documents and executing the subcontract

Compile the subcontract with care and implement an appropriate checking regime. It is good practice for the subcontract prepared for execution to be checked by at least two people. This helps to avoid errors that could lead to expensive disputes.

The following are examples of good practice:

  • Clearly identify each party to the subcontract. For example, where a party is a company, the subcontract should state the name of the company, its company number and its registered address.
  • Ensure that the specific information included in the subcontract (e.g. subcontract particulars or subcontract data) is consistent with the conditions of the subcontract, especially where the conditions have been amended.
  • Where the subcontract contains a schedule of amendments, this should be properly incorporated into the subcontract so that it is effective.
  • Pre-contract correspondence (letters, emails, etc.) should not be included in the subcontract. These documents can cause discrepancies and ambiguities.
  • Technical documents (e.g. the 'Numbered Documents' in JCT DBSub 2016 and the 'Subcontract Scope' in NEC4 ECS) can be bound into the subcontract as hard copies. However, if it is not practical to incorporate hard copies of documents, they can be incorporated either by reference or as electronic copies. For example, very large documents may be written to a CD or DVD. In that case, the CD/DVD should be incorporated by reference, enclosed with the subcontract and signed by the main contractor and the subcontractor.

Under English law, the subcontract can be executed under hand or as a deed. When considering these two options, remember the limitation period for actions brought under a contract executed under hand is six years from the date on which the cause of action accrued, whereas the limitation period is generally twelve years in the case of a deed. In most cases, it is better to ensure that the subcontract is executed as a deed. In addition, where the subcontractor is obliged to give third-party rights or enter into collateral warranties, the main contract will probably impose an obligation on the main contractor to see that the subcontract is executed as a deed.