Yes, it matters, but it isn't prohibited. A non NEC subcontract has to be submitted to the Project Manager for acceptance under clause 26.3, and any mismatch with the main contract's procedures becomes the Contractor's risk.
What decides how much it matters is the terms you've used: whether they carry the mutual trust wording, and how their notice periods, change rules and payment dates compare with yours. The clauses below are NEC4 ECC, and NEC3 ECC uses the same numbers for clause 26.
Before you appoint
- Submit the name (26.2) and the documents, without pricing (26.3), and wait for acceptance. The Project Manager replies within the period for reply in the Contract Data.
- Check the mutual trust statement. Leaving out the statement that the parties will work with mutual trust and co-operation is a reason the contract gives for refusal.
- Check the documents let you Provide the Works. That's the other listed reason: terms that would stop you meeting the main contract can be rejected.
- Compare the procedures using the table below, and amend the subcontract where the gaps are too wide.
- Remember that an amended NEC form needs checking too. Under NEC4, the exemption from submission is for an NEC form with no amendments beyond those allowed. NEC3's wording is simpler, covering a proposed NEC contract.
Where a mismatch costs money
| Topic | Your main contract | What to look for in the subcontract | The risk |
|---|---|---|---|
| Notifying events | Eight weeks from awareness under 61.3 | A shorter period, so you hear in time | The subcontractor can claim after your own right has gone |
| What counts as an event | The 60.1 list | Which events let the subcontractor claim, and on what test | You owe money for something that's not a compensation event above you |
| Quoting for change | Three weeks to quote | A period ending before yours, with a matching format | You have no figure when your quotation is due |
| Early warning | Duty under 15.1 | A matching duty, or a practical substitute | You miss a warning and face a 61.5 statement |
| Programme | Accepted Programme, clause 31 | Information your programme needs | You can't show the effect of delay |
| Payment | Certificate then payment within 3 weeks of the assessment date | Dates that fit your cash flow, compliant with the Construction Act | You pay before you're paid, or the terms can't be enforced as written |
| Disputes | Your W Option | Whether a related dispute can be run together | Two adjudicators reach different answers on the same facts |
| Termination | Section 9 | A way to end the subcontract if yours ends. The NEC4 subcontract has R23 for this | You're left with a subcontract and no main contract |
A short example
A fictional Contractor lets a roofing package on the subcontractor's standard terms, which allow 12 weeks to give notice of a variation claim. The roofer finds a design clash and writes in week 11. By then, the Contractor's eight weeks have run, measured from when the site manager saw the clash. The Contractor still owes the roofer under its own terms, with nothing coming back from the Client. An NEC subcontract's seven weeks would have prevented that.
If it's already signed
You can't rewrite it alone, but you can control the risk. In practice, ask for informal reporting of anything that might become a claim, put a recurring item on your subcontract meeting agenda, and diarise your own eight weeks as soon as you hear. If the name or documents were never accepted, submit them now. Appointing for substantial work before the firm's acceptance is termination reason R13, as explained in our answer on subcontractor acceptance.
The likely responses
A subcontractor may refuse NEC terms because it doesn't know them, or insist on its own paperwork. The contract doesn't stop you agreeing to that, though the Project Manager may raise it. The Project Manager can't refuse just because it isn't NEC, as that isn't a stated reason. A Client's Scope may restrict which forms you can use, so read yours.
The Engineering and Construction Subcontract guide sets out what you'd get by using the matching NEC form, the comparison with JCT shows how approaches differ, and related questions are in the NEC questions hub.
Related guides
- NEC Questions Answered: Real Situations on Site
- Our Main Contractor Has Not Paid Us: What Can a Subcontractor Do?
- Should a Subcontractor Warn the Main Contractor or the PM?
- We Stopped Work for a Safety Reason: Who Pays?
- Do We Need the PM's Acceptance to Appoint a Subcontractor?
- Our Subcontractor Notified Late: Can We Still Claim Upstream?
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This guide is general information in our own words, not legal advice. Your contract and its Contract Data always govern. NEC, NEC3 and NEC4 are trade marks of Thomas Telford Ltd; Contract Status is not affiliated with or endorsed by NEC.