Civil Engineering Reference
In-Depth Information
to the Nominated Sub-Contractor. No equivalent provisions existed under JCT 98 in
respectofpaymentstodomesticsub-contractors.
The second important difference between nominated and domestic sub-contracts
was the ability of the Nominated Sub-Contractor under JCT 98 to secure payment
direct from the Employer. Clause 35.13.5 of JCT 98 provided that where the Contrac-
tor had failed to provide reasonable proof of payment to a Nominated Sub-Contractor
of the amount included in an Interim Certificate, the Architect should issue a certifi-
cate to that effect stating the amount in respect of which the Contractor had failed to
provideproof;theamountofanyfuturepaymentotherwiseduetotheContractorwas
reduced by the amount due to Nominated Sub-Contractors which the Contractor had
failed to pay; and the Employer made payment of the relevant amounts direct to the
Nominated Sub-Contractors concerned. The obligation on the part of the Employer
to make direct payment only arose if the Employer had entered into the direct agree-
ment, NSC/W/Scot, with the Nominated Sub-Contractor.
No direct payment could be made if, at the date when the deduction and pay-
ment to the Nominated Sub-Contractor would otherwise be made, the Contractor
had become bankrupt, had become 'apparently insolvent' or had had a winding-up
order made. This left open the question whether the direct payment provisions could
be operated upon the appointment of an administrator or receiver to the Contractor.
Given that much, if not all, of the work performed by Nominated Sub-Contractors
wasofaspecialistnature,whatwastheliabilityoftheContractortotheEmployerin
the event of default by the Nominated Sub-Contractor? Where there was delay on the
partoftheNominatedSub-Contractor(ornominatedsupplier),whichtheContractor
had taken reasonable steps to reduce, clause 25.4.7 of JCT 98 provided that this was a
Relevant Event for the purposes of the Contractor securing an extension of time.
Clause 35.21 of JCT 98 provided that the Contractor had no liability to the
Employer in four specified situations:
•
for the design of any Nominated Sub-Contract works insofar as they were designed
by the Nominated Sub-Contractor;
•
for the selection of the kinds of materials and goods which had been selected by
the Nominated Sub-Contractor;
•
for the satisfaction of any performance specification or requirement insofar as that
wasincludedintheNominatedSub-Contractworks;
•
for the provision of information by the Nominated Sub-Contractor in reasonable
time in order that the Architect could comply with the relevant provisions of the
main contract.
11.5 Named and specialist Sub-Contractors
Mentionshouldalsobemadeof'listed'and'named'sub-contractors.Clause3.8of
the SBC provides that, in certain circumstances, work must be carried out by one of a
number of persons named in a list which is either in or annexed to the Contract Bills.
The work in question will have been priced by the Contractor, and the selection of the
person to carry out the work is at the sole discretion of the Contractor. his procedure
