I am aware that there is no provision in NEC3 ECC for nominated sub-contractors.
However, if the Works Information does contain a nominated sub-contractor what are the implications, if any, for either party when the contract has been awarded on this basis?
The biggest point/issue is that the Contractor would have to price the risk of that nominated Subcontractor not performing, because even though these have been nominated by the Client there is no where in the compensation event clauses that would make their non-performance a compensation event.
This may seem pretty unfair on the Contractor especially if they have gone out of their way to make sure that they have performed but they still haven’t. Equally though if the opposite were true it wouldn’t be fair on the Employer if any non-performance of the nominated Subcontractor becomes a CE - if the Project Manager feels the Contractor made no effort to properly manage them.
As you say, the NEC contracts make no such provisions for nominations, but equally as you say nothing to stop them doing this in practice by stating this in the Works Information. The NEC intent is that the Employer contracts directly with them themselves if they really want to use them, and manages the interface with the Contractor with a series of Key Dates.