The Contractor may not subcontract the whole or any part of the Works without the prior written consent of the Employer. Subcontracting any part of the Works shall not relieve the Contractor of any obligation or duty attributable to the Contractor under the Contract. The Contractor shall be responsible for the acts, defaults and neglects of any subcontractor, its agents or employees as fully as if they were the acts, defaults or neglects of the Contractor.
Here is a plain English explanation of the Subcontracting clause:
- This clause sets rules around the Contractor subcontracting work to other parties.
- The Contractor must get prior written permission from the Employer before subcontracting any part of the work.
- They cannot just subcontract tasks without the Employer approving it first.
- If the Contractor is allowed to subcontract, they remain fully responsible for the work done by the subcontractor.
- The Contractor must meet all their duties and obligations under the contract, regardless of subcontracting.
- If the subcontractor makes any mistakes or does anything wrong, the Contractor is legally responsible as if they did it themselves.
- The Employer can treat any failings by the subcontractor as failings by the Contractor.
So subcontracting does not relieve the Contractor of liability for the work.
The use of subcontracting clauses traces back to early Roman law which recognized the need to regulate project delegation. In medieval England, principles of privity meant contractors remained liable for outsourced work.
By the 19th century, courts upheld the non-delegable duties of contracting parties even if they subcontracted responsibilities.
However, ambiguity around subcontracting risks remained problematic. In the late 1800s, specific contractual control of subcontracting emerged in response. Clauses requiring employer consent aimed to protect project oversight. Express extension of contractor liability to subcontractors reduced legal uncertainties.
Over the 20th century, subcontracting clauses became standard as projects grew more complex. Trade associations published model provisions holding prime contractors accountable for the full supply chain. Customisation also increased to balance employer control with practical subcontracting needs.
Today, nuanced subcontracting clauses allowing controlled delegation are commonplace in construction and services contracts.
The evolution of these clauses maintained prime contractor liability while permitting strategic use of subcontractors. Clear drafting prevents legal disputes and protects all parties involved.