What is providing a service necessary to Provide the Works under Clause 11.2(17)?

When is an Agency Supplied worker providing a service?
Would a CAD Technician provided via an Agency be a Sub contractor under the Contract (Assuming that it is provision of labour only at the Contractors offices outside of the Working Areas)

1 Like

The standard NEC3 definition of a Subcontractor is:
“A Subcontractor is a person or organisation who has a contract with the Contractor to
. construct or install part of the works,
. provide a service necessary to Provide the Works or
. supply Plant and Materials which the person or organisation has wholly or partly designed specifically for the works.”

In regard to perfoming a service. The service necessary to be a Subcontract needs to be something being controlled/managed by that subcontractor. So providing a planning or commercial management or security services where that organisation is responsible for providing, taking responsibility, designing the service

In this instance the CAD operator is coming through an agency - is he responsible for the service he provides or is he being directed by the Contractor (labour only)? This being the case the CAD operator would fit under cost component 14.

It is a grey area and it is best to get this resolved at the outset of the contract by ensuring that both Parties have a clear understanding of how providing a service is to be interpretated.

A small addition to Barry’s answer.

Barry is correct that the test here is responsibility for the output that relates to Providing the Works. So, the CAD operator may be responsible for accurately copying into the system the design information which he has been given but he would not take responsibility for the output of the design itself. In a very similar way, a labourer may be responsible for digging where he is told to dig but he does not take responsibility for that being the right place.

Secondly, Barry said, and I agree, that a CAD Technician is most likely to be caught by cost component 14. However, your question says he is outside the working area so cost component 14 doesn’t assist as that is only relevant inside the working area. Cost component 6 equally doesn’t help as that only relates to employees. Therefore the cost would not be recoverable. It might be possible to argue that the reference to “employees” in cost component 6 refers to those directly employed and those not directly employed as the same distinction is not made as for People Costs. The facts will provide some insight as to what is appropriate but you can’t beat early discussion on how the cost should be dealt with.