NEC3 ECC: Project does not fall into catagory for Housing Grants Act

We have an Invitation to Tender on NEC3 Engineering and Construction Subcontract conditions to provide for the supply of our designed engineering equipment carried out and tested completely at our works, however, the subcontract does not fall into the category of a “construction contract” as defined by the HGCR Act 1996, Section 105 (2) © and (d), also there would be no further involvement by the subcontractor in this subcontract requiring installation of the equipment at the Employer’s construction site as this will be performed by the Contractor who is flowing down his main contract conditions, including Y(UK)2, with amendments made thereto into his subcontract.

Does Y(UK)2 apply only to a Construction Contract as defined in the HGRC Act 1996, and could a subcontractor, in carrying out a scope of work, that plainly does fall outside of this definition, seek to rely upon the terms of payment of the core clause provisions of Section 5 of NEC3 ECS with amendments made to these by the Contractor, and exclude application of Y(UK)2 and any amendments also made thereto in the proposed ITT/ subcontract?

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The Housing Grants, Construction & Regeneration Act (1996) as amended by the Local Democracy, Economic Development and Construction Act (2009) basically states a minimum set of provisions that a ‘construction contract’ has to have regarding payment and dispute resolution i.e. adjudication. For the former, they are there to ensure cash flow down the supply chain which is beneficial to those down the supply chain.

So a question back to you is : why would you want lesser conditions ?

But in answer to your question, as you are not subject to the Act, it does not apply. However, you and the Contractor signed a contract with those terms in them, there is presumably nothing illegal about them, so it is only by a supplementary agreement between the Parties that the terms can be modified.