Under NEC3, Clause 26.2 deals with the submission of the Subcontractors names and Clause 26.3 deals with the submission of the subcontract conditions for each sub-contract.
Under Clause 26.2, a reason for not accepting the proposed Subcontractor is that his appointment will not allow the Contractor to provide the works and under a previous response, this could be due to financial, quality or safety concerns.
If there is no reason not to accept a proposed Subcontractor under Clause 26.2, what, from the subcontract conditions submitted under Clause 26.3, would be a reason or reasons for not accepting the proposed Subcontractor under bullet point 3, namely that they will not allow the Contractor to provide the works? It is assumed that “they” are the subcontract conditions.
Firstly, let’s consider what “to Provide the Works” means. Under NEC3 ECC clause 11.2 (13), it is “to do the work necessary to complete the works in accordance with this contract and all incidental work, services and actions which this contract requires”. Under NEC4, it is the same but clause 11.2 (15).
So from this definition, it is not just doing the physical work, but also the “actions which this contract requires”. I.e. operating the early warning, programming, compensation event procedures of the contract itself.
So if I was employing a Contractor on a design and build contract, who was subcontracting out say 40% of the value to a design and build subcontractor on, say, a JCT contract, I simply could not see how the main Contractor could comply with its main contract without using the Engineering and Construction Subcontract.
If, on the other hand, it was 1% of contract value for some simple cable-pulling or brickwork, with the main contractor directing the work, then I would farmer amenable to them using an internal or JCT based subcontract form.