Civil Engineering Reference
In-Depth Information
without the architect's consent, can the
contractor avoid having to pay the sub-
contractor for work done?
SBC clause 3.7.1 states that the contractor must not sub-contract any part of the Works
without the architect's consent, which must not be unreasonably delayed or withheld. The
provision is important. When the employer, with the advice of the architect or the quantity
surveyor,selectedcontractorsforthetenderlistandacceptedthepriceofoneofthem,itwas
onthebasis,atleastpartly,ofthereputationofthosecontractors.Ifacontractorwasallowed
to sub- contract as it pleased and to choose sub-contractors indiscriminately, perhaps simply
onthebasisofthelowestprice,thepointofselectingacontractorwithareputationforgood
work would be defeated. If a contractor sub-contracts without consent, it is a ground for the
issue of a default notice under clause 8.4.1.4 prior to termination by the employer.
In practice, a contractor will often sub-contract without consent and then request consent
later. Many architects feel pressured into giving the consent simply because the conse-
quences of withholding consent, even if justified, might be to cause a severe delay to the
contract. Although the delay would be the contractor's fault, and the employer could re-
cover liquidated damages, the actual period of delay could never be recovered. Therefore,
the instances when an architect will refuse consent to a sub-contractor are likely to be rare.
Nevertheless, it does occur. When consent is refused, the contractor may be in the position
of having instructed the sub-contractor to carry out part of the work, which may have to be
redone with an authorised sub-contractor or, if sub-contracting is not consented to at all, by
the contractor itself. Even worse, the contractor may have entered into a sub-contract with
the sub-contractor for the whole of that particular item of work, for example heating, and
face liability for repudiation of the sub-contract.
Does the refusal of consent by the architect, necessitating the use of a different sub-con-
tractor by the contractor or the carrying out of that work by the contractor itself, somehow
invalidate the sub-contract so as to relieve the contractor from any liability under it? Sadly
for the contractor, the answer to that question is 'No'. The obligation to obtain consent prior
to sub-contracting is a term of the main contract between the contractor and the employer.
Ifthecontractor enters intoasub-contract withthesub-contractor without consent, that sub-
contract is perfectly valid and legally binding on both sub-contractor and contractor. The
terms of the main contract are of no concern to the sub-contractor unless the sub-contractor
hasreceivedadequatenoticeofthem.Evenifsuchnoticehasbeengiven,thesub-contractor
has no duty to check with the contractor that consent has been received from the architect.
The sub-contractor's position would be the same as that of the party to any other contract
