The same principle works the other way around. If the main contract requires the employer to do something within five days, the contractor may need to think about it before providing relevant information to the subcontractor. In this example, the time frame in the subcontract should be longer – for example 10 working days.

Deadlines and buffers are also important for payment obligations. The corresponding NEC4 contract forms already take time buffers into account in the payment provisions. For example, in Section 51.1, payments in the main contract are certified by the project manager within one week of the evaluation date; and subcontracted payments will be certified by the contractor within two weeks of the valuation date. In Section Y2.2, the due date for a payment is seven days after the valuation date in the ECC and 14 days in the ECS.

In practice, there is therefore a seven-day buffer for both confirming payments and making payments. There is scope to change these deadlines to create a larger buffer – however, care should be taken to adhere to employers’ payment policies, such as the government’s immediate payment policy, which allows undisputed bills to be paid within 30 days and for this payment prescribes a term that is to be passed on in the supply chain.

If the subcontracting NEC forms are not used, the author must ensure that adequate buffers are included and specifically designed for them.

Mandatory vs. discretionary flowdown

Depending on the terms of the main contract, the contractor may be required to include certain provisions in the subcontract. We often see this in the context of policy clauses such as those on bribery and modern slavery – for example, a contractor may be required to adhere to the employer’s bribery policy and include provisions in their subcontracts to ensure that their subcontractors do the same. It is usually not found in relation to the core contractual obligations, as the employer usually grants the contractor discretion over the procurement of his supply chain.

If the transfer of obligations from the main contract to the subcontract is not absolutely necessary, you can still do so in order to later rely on the cooperation of the subcontractor for these obligations.