Ask for the main contract before you sign a back-to-back subcontract
Seeing the main contract before you sign is the only way to price the terms a back-to-back subcontract passes down to you. Ask for a copy, with the prices blacked out if need be, and read the parts that reach your work.
Updated: . By Jack Butler-Kettle, Construction Claims Consultant.
Why it matters
A back-to-back clause makes the main contract part of your deal. That includes its notice periods, delay damages, design and warranty duties and programme. Without a copy you cannot price any of them. Nor can you check whether you have less time to give notice than your main contractor has itself. Your main contractor has the document and will rely on it when it suits. Asking for it before you sign costs one email. Finding it at the first dispute costs you the argument.
How to do it
- Find the clause that brings in the main contract. Note what it brings in: the whole contract, named parts, or the duties so far as they relate to your work.
- Ask in writing for a copy before you sign, offering to accept it with the prices blacked out.
- Read the parts that reach your work: notices, programme, delay damages, design, warranties and insurance.
- Set each against your subcontract. Where you get less time or more liability than your main contractor has, propose wording that brings the two into line.
- Record any refusal in writing, and price the risk of terms you have not been able to read.
Example
Illustrative example. The scenario and figures are invented.
The facts
A fire protection subcontractor is offered a £310,000 subcontract that binds it to the main contract so far as it relates to its work. No copy of the main contract is attached.
What happens
- The subcontractor asks for the main contract, and it arrives 3 days later with the prices blacked out.
- The main contract gives the main contractor 21 days to notify its client of a delay. The subcontract requires notice from the subcontractor within 7 days.
- The main contract also requires third party certification of the fire stopping. The quote did not include it, and it costs £6,400.
- The subcontractor proposes 14 days for notices and adds the certification to its price.
The outcome
The subcontractor signs with 14 days for notices, and the £6,400 of certification is paid for in its price. Found after signing, that cost would have come out of its margin.
To have this set up for you, see our Pre-Signing Contract Review service.