In many industries, workers and companies are employed to complete jobs and, subsequently, are known as contractors. Sometimes, they bring in sub-contractors to support their role and complete aspects of the job. These subcontractors may be named and nominated when the contract is initially signed. However, the main contractor may bring in unnamed domestic subcontractors at a later date.
Problem
I am hoping for a bit of understanding about an issue I have.
My building company started a refurbishment contract a few months ago and was appointed under a JCT Minor Works Building Contract. When carrying out the works, an area of dampness was found and I instructed a specialist waterproofing firm to go into the property install a vertical DPC and apply Sika render. I am now writing up a report about the project for the client and am trying to understand the waterproofing company’s contractual role. Am I right in saying that the waterproofing company was appointed as a domestic sub-contractor as they were paid and managed by my company?
I understand minor works contracts are not suitable for named specialists but I wanted to know whether this was true if the specialist had to be appointed after the contracts were signed.
Hopefully, that makes sense and I would greatly appreciate your advice.
Samir, Leicester
Response
Hello Samir.
As you instructed, managed and paid the waterproofing company, it would most likely be a domestic sub-contractor. I say likely, because you may have instructed the sub-contractor on behalf of the employer (providing you had authority and made this known to the sub-contractor at the material time) whilst managing and payment does not necessarily indicate a contractual obligation.
If the sub-contractor had addressed its estimate to your company and you accepted this estimate without reference to a third party (i.e. the employer), then your company would have entered into a legally binding contract with the sub-contractor. Thus they would be a domestic sub-contractor.
Under the JCT Minor Works Building Contract, there are no provisions for nominated or named sub-contractors. Any sub-contractors would either be employed by the principal contractor or directly engaged by the employer. If the employer wishes to nominate or name a specialist contractor, then other contracts in the JCT suite will accommodate this request.
What is a Domestic Sub-Contractor?
Sub-contractors are additional contractors that are appointed by the main contractor to complete parts of their job. They may come in and provide specialist services or support the contractor to decrease the time required to complete the total job.
There are three types of sub-contractors:
- Named sub-contractors
- Nominated sub-contractors
- Domestic sub-contractors
A domestic sub-contractor is any sub-contractor brought in solely at the discretion of the main contractor. Unlike named and nominated sub-contractors, domestic sub-contractors are not explicitly mentioned in the contract with the employer and are therefore not bound by its terms and conditions. The employer also has no say in their selection and will not have been consulted before their appointment.
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The advice provided is intended to be a general guide only and should not be viewed as providing a definitive legal analysis.
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