FAQs for Contracts, Quantity Surveying

Question 1

What does it mean for a subcontract to be back to back?

Accepted Answer

It means the subcontract passes down the obligations you carry upstream, so a risk you can be charged for by the employer can be charged on to the subcontractor who caused it, with no orphaned risk between the two. Back to back describes a subcontract whose terms line up with the main contract so the risks you carry to your employer can be passed on to the subcontractor responsible for them. If the employer can levy damages on you for a delay, the subcontract needs to let you recover those from the subcontractor whose delay caused it; if a variation is only recoverable upstream on certain conditions, the subcontract needs the same conditions downstream. The point is to prevent orphaned risk, an obligation that lands on you from above but has nowhere to go below, exactly the exposure that quietly bankrupts the middle of a supply chain. It does not mean the two contracts are word-for-word identical, and treating it that way causes its own trouble: a subcontractor cannot sensibly be bound to programme dates that only make sense at main-contract level, and some main-contract obligations have no meaningful downstream equivalent. The craft is in mapping which obligations genuinely need to pass down and drafting those to align, leaving the rest to suit the subcontract package. It also has to stay lawful: a payment term cannot be made back to back in a way that breaches the Construction Act, so pay-when-paid cannot simply be mirrored down. Done well, no risk falls into the gap between the two contracts; done as a blind copy, it creates gaps of a different kind.

Question 2

Should I use the main contract form for my subcontracts?

Accepted Answer

Usually no: use the subcontract form that matches your main contract, which is built to sit beneath it, rather than the main contract form itself, which is written for a different relationship. The instinct to place a subcontract on the same form as the main contract is understandable but usually wrong, because a main contract form governs the relationship between an employer and a main contractor, not between a contractor and a subcontractor, and the two differ in ways the form encodes throughout. The standard families anticipate this and publish dedicated subcontract forms designed to sit beneath their main contracts, so the sensible default is the matching subcontract form: it carries the right payment machinery and notice provisions, and terms already shaped to pass main-contract obligations down without awkward translation. Using the main contract form means editing out or working around dozens of provisions that assume an employer on the other side, and every edit is a chance to introduce an inconsistency or a gap. Equally, a bespoke house order a buyer wrote years ago is worth reviewing rather than trusting by habit, because it may not comply with the current Construction Act payment requirements or may not sit back to back with the main contract you are working under. The decisive test is not which form looks most familiar but which your commercial team can actually administer correctly month after month, because a form whose payment windows and notice provisions get operated properly protects you far better than a theoretically watertight one nobody on the job understands well enough to run.

Question 3

Can I avoid a letter of intent when a package must start early?

Accepted Answer

Usually yes, and it is worth the effort: a short but complete subcontract, executed quickly, is almost always a better answer than a letter of intent when a package needs to start before the full order is ready. The pressure to issue a letter of intent comes from the same place every time: the works are needed on site before the full subcontract is finished, and something is wanted in writing to let the subcontractor start. The trouble is that a letter of intent is, by design, an incomplete arrangement, and the questions it leaves open, the full scope, the payment machinery, what happens if the parties never agree the rest, are exactly the questions a dispute later turns on. At procurement stage, before anything has gone wrong, you usually have a better option: compress the subcontract rather than replace it. Agree the price and essential terms, draft a short but complete order that captures the scope, payment provisions and key dates, and get it signed before the works start. It takes a little longer, but produces an actual contract rather than a placeholder everyone intends to firm up and never does. If time will not allow even that, keep any interim document narrow and cash-capped, define precisely what it authorises and for how long, and treat it as a countdown to a proper order, because the danger is always that it quietly becomes the contract by default when the full order never materialises. The safest habit is to design the programme so a signed subcontract, not an intent letter, lets the works begin.

Question 4

What does a commercial contract review cover that a legal one does not?

Accepted Answer

A commercial review reads the contract for what it does to your cashflow, programme and risk in practice, in plain English with the amendments worth asking for; a legal review reads it for enforceability and legal drafting. The two reviews look at the same document through different lenses, and on most subcontract and small main-contract work the commercial one changes the deal. A commercial review, the kind a quantity surveyor does before signature, reads the contract for what it will actually do to you: what the payment mechanism does to your cashflow and whether it matches what you priced, where amendments have moved risk onto you compared with the standard form, what the programme and damages clauses commit you to, and how the variation and notice machinery will behave on a live job. The output is plain English for the person who has to decide, with a schedule of the amendments worth asking for, each with a fallback, so it feeds straight into the negotiation. A legal review, which a solicitor does, reads for enforceability, whether clauses are legally sound, and the consequences of the wording; it is the right call where a clause is genuinely novel, where large sums or unusual risks are involved, or where the commercial review flags something for a lawyer's eye. The two are complementary: the commercial review tells you what the contract does to your business and what to negotiate, and tells you honestly when a point needs a solicitor. It is not the dispute-lens read of a contract already biting, which sits on the claims side of the practice; the procurement-stage review is done before signature, as part of buying the job well.

FAQs for Contracts, Quantity Surveying

Frequently asked questions

Placing and reviewing contracts

What does it mean for a subcontract to be back to back?

Should I use the main contract form for my subcontracts?

Can I avoid a letter of intent when a package must start early?

What does a commercial contract review cover that a legal one does not?