Yes. NEC subcontractor acceptance is required before you appoint anyone who meets the contract's definition of a Subcontractor: clause 26.2 has you submit the name and wait for the Project Manager's acceptance. Depending on the form, you may also need the subcontract documents accepted under 26.3.
What decides it is whether the firm is a Subcontractor as defined, and what paperwork you plan to use. The clause numbers below are for NEC4 ECC, with NEC3 alongside. Under the NEC4 subcontract, the same rules apply one tier down to subsubcontractors, with the Contractor accepting.
What to submit
| Item | When it's needed | NEC4 ECC | NEC3 ECC |
|---|---|---|---|
| Name of the proposed firm | Every Subcontractor | 26.2 | 26.2 |
| Subcontract documents, with pricing removed | Unless it's an NEC form with no amendments beyond those the contract allows, or the Project Manager has agreed no submission is needed | 26.3 | 26.3 (the conditions of contract, unless an NEC contract is proposed) |
| Pricing information | Cost-based main Options. Check your Option's clauses | 26.4 | Not the same: 26.4 deals with the proposed contract data |
The steps and the time
- Check the definition first. Most pure suppliers fall outside it, and plant hire or agency labour may too. See the NEC definition of Subcontractor.
- Submit well before you need the firm on site. The Project Manager has the period for reply in the Contract Data, then can ask for more or refuse, and a new period runs.
- Don't place the order yet. A letter of intent or a start on site before acceptance is an appointment risk.
- Chase on the reply date. Silence is a possible compensation event under 60.1(6), but it isn't acceptance.
- Record the acceptance against the package, so that the commercial team can see it.
Reasons the Project Manager can give
For the name, the contract's stated reason is that the appointment won't let you Provide the Works. For the documents, it's the same, or that the documents leave out the required statement on mutual trust and co-operation. That second point is a common catch on non-NEC paperwork: see subcontracts not on an NEC form.
A preference for another firm isn't on the list, unless something in the Scope restricts who you can use, such as an approved list or a framework rule. If acceptance is held back for a reason the contract doesn't give, it may be a compensation event under 60.1(9).
If you've already appointed them
The contract's sharpest consequence is termination reason R13: appointing a Subcontractor for substantial work before acceptance. The Client can only use it after the Project Manager notifies the default and it stays unresolved after the stated period, which is four weeks in NEC3 and NEC4 ECC and three in the NEC4 subcontract. Check your own 91.2 for amendments. On a small package, R13 won't apply, but the failure is still there, and on cost-based Options it can feed a dispute about the costs.
If this has happened, submit straight away, say plainly what's been done, and ask for acceptance. A late submission is better than one that's found on an audit.
Sample submission
"Under clause 26.2 we submit [firm] for acceptance as Subcontractor for [package]. They will [construct, install or design: describe]. Under clause 26.3 we [attach the proposed documents without pricing / confirm the subcontract is the unamended NEC4 ECS]. We need to appoint by [date] to meet the Accepted Programme date of [date] for this work."
The other side's view
A Project Manager may ask for a firm's accounts, safety record or references. The contract doesn't list those as submission items, but they may be genuine reasons to wonder whether the firm can do the job, so offering them can shorten the discussion. Project Managers should be careful with a refusal that really reflects a Client preference. In practice, reply on the listed grounds, and give enough detail for the Contractor to correct the problem.
Your position against the Client doesn't change either way. Under 26.1 you stay responsible as if the work hadn't been subcontracted, and acceptance doesn't change that. The guide to managing subcontracts has more, and you can find related answers in the NEC questions hub.
Related guides
- NEC Questions Answered: Real Situations on Site
- Our Subcontractor Notified Late: Can We Still Claim Upstream?
- Our Subcontract Is Not on an NEC Form: Does It Matter?
- Our Main Contractor Has Not Paid Us: What Can a Subcontractor Do?
- The PM Wants a Member of Our Team Removed: Can They?
- We Need to Replace a Key Person: What Is Required?
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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.