a
pinpoint responsibility at time when the matter can be properly considered and remedied, instead of being determined by costly post- mortem examination in arbitration proceedings years after the event.
RIGHTS OF NOMINATED SUB- CONTRACTORS AND SUPPLIERS
Clause 21 of the standard form of lump sum contract provides for the nomination of persons "to supply and fix materials or to execute work on the site," and such persons are referred to as nominated sub-contrac- tors. The nominated sub-contractor is commonly although not necessarily a person who supplies and fixes materials. Hence Mr. Lindsay in his paper has chosen to refer to the "supplier sub-contractor," and this does indeed give us a clearer picture of this class of nominated contractor.
sub-
the
Clause 13(b) provides that builder need not employ a nominated sub-contractor "who will not enter into a sub-contract binding the sub- contractor by the like obligations to the builder in respect of the subject matter of the sub-contract as the builder assumes by his contract to the proprietor."
It will be observed that the builder is not actually obliged to enter into a form of contract containing the same provisions as the main contract, so far as they relate to the sub- contract work. The position is rather that he has the right to refuse to employ the nominated sub-con- tractor unless the latter is prepared to enter into a contract on those terms.
It is obvious that in choosing a sub-contractor to be nominated the architect must refer to some condi- tions of contract, and the natural thing of course is to refer to the con- ditions of the main contract so far as they can be related to the work in question. Clause 13(b) goes on to provide that the builder shall be entitled to require that any such sub- contract shall contain adequate terms and conditions relating to certain specified matters.
Despite these provisions, which are right enough as far as they go, the whole position as between the con- tractor and the sub-contractor is at the present time widely regarded as highly unsatisfactory.
For one thing, sub-contractors as such have no voice in the framing of the standard form of contract which has come to affect them so
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closely, now that so much work is done on a sub-contract basis.
The builder may well complain that although he is not relieved from all responsibility for the defaults of a nominated sub-contractor, he has little room to manoeuvre in negotiat- ing what he regards as proper terms with a sub-contractor whose tender has already been accepted by the architect. Often no separate form of contract is entered into at all, or if it is, it is framed with insufficient care.
It would be very much in the in- terests of the principal sub-contrac- tors to form an association, if only for the purpose of ensuring that pro- per forms are drawn up to protect their interests but indeed, they
could go further and endeavour to insist upon proper protection of their interests in the matter of payment, and otherwise. The standard form contains some provision to ensure to sub-contractors, prompt payment but the provision relates only to nominated sub-contractors, and is at the architect's discretion. Much more adequate provision could be made. not only by appropriate contractual provisions, but perhaps even by some amendment to the statutory law.
Some people in the industry ap- pear to think that sub-contractors are a class of rightless men, who can claim nothing more than the tender sum even if their work is unreason- ably deferred or accelerated, or if they are given
no proper warning, or compelled to pay overtime and penalty rates in order to complete work so as to fit in with the builder's schedule. However true this may be from
a practical point of view. having regard to the sub-contractors' traditional reluctance to force the issue with builders upon whom they are dependent, there is little warrant for it as a matter of law.
Apart from express agreement the sub-contractor's only obligation would be to perform the work at the tender price at a reasonable pace and within a reasonable time, without paying overtime or penalty rates, and without being obliged to upset his whole programme of operation at short notice. And if the builder has arranged for materials to be supplied and fixed, or work done, at a parti- cular time, and has then cancelled the arrangement, the sub-contractor would in normal circumstances have an action against the builder for such damage as he might suffer owing to the postponement. I am far from intending or wishing by these remarks to encourage legal claims by sub- contractors against builder, but I
thought it proper to correct the false impression which appears to prevail that the sub-contractor has no rights whatever.
UNIFORMITY IN USE OF TERMS
I have been asked to mention the desirability of uniformity in the use of terms relating to the matters under present discussion. Certainly it is important to any discussion that people should be clear as to what they mean by the words they use. It is a considerable aid to discussion if the same word can always be used
10
mean the same thing, and that same thing always denoted by that same word for example, we have the terms "owner". "proprietor" and "client"; or again, we nave the terms “builder". "contractor", "main con- tractor" or "prime contractor". The schedule of which I have spoken is sometimes called a "progress schedule", "time schedule", "time chart" and so on. The term "sub- contractor" is ambiguous. It is some- times use to mean ali sub-contractors, and sometimes as referring only to sub-contractors other than those nominated. Here we clearly need a new expression, either for nominated sub-contractors, or for unnominated sub-contractors, and indeed a term which would clearly cover both. It the responsible bodies of the in- dustry were to put their minds to it, appropriate expressions could indeed be found, and much confusion could thus be avoided.
GENERAL
new
Emerging from the tunnel, as it were, of our discussion of the lump sum contract and its particular clauses, with its hidden surprises and sudden flashes of light, no matter how familiar with it we may think we are, we now come out to look with a broad view once again over the building contract considered as an organic whole.
And may I say that I have not sought in this paper to draw any distinction between building and engineering works. I have been thinking. I must admit, mostly of the big undertakings, but what I have had to say will usually apply in greater or lesser extent, even to the smallest building jobs.
Many of the things I have been saying would apply, I am sure, not only to building and civil engineering works, but also to any attempt to regulate, through written instruments of a contractual character, the re- lationships between men engaged in co-operative enterprise of a building
THE HONG KONG & FAR EAST BUILDER-VOLUME 19, NUMBER 2
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