Like all construction lawyers, nothing satisfies us more than a well drafted subcontractor agreement. Parties will often contract to design and supply goods and then carve out the design element of the work package. Contractors will cater to the designers requirements and use their comprehensive understanding to produce innovative techniques to enable them to deliver unique solutions to meet the designers requirements.
Clients may be unaware of the separation of design and build works on their projects. For high value, or low value but particularly important works, they may be concerned to ensure that all works are appropriately warranted by the party that performed the works. This carve out of work can affect the documents issued as a result. On a recent project we continually chased for receipt of evidence of the sub-contractors professional indemnity insurance in support of a warranty and a sub contract appropriately detailing the works. After much effort it became apparent that the sub-contractor was the European licensed installer rather than the designer of the work. The client team considered the carved out design works to be highly important and the provision of a warranty from the designer was pursued. After extensive digging, including reviewing sub sub sub contract documents with limited detail, we identified that the designer of the important work package was a sub sub sub sub consultant. It was important to identify the appropriately detailed scope of services to ensure they correctly inform the services guaranteed under the relevant design warranty. A design warranty was procured from the designer, in accordance with the building contract, to the satisfaction of the client end user.
This case study highlights the need on this project to continue drilling down to identify the parties contractually obliged to deal with the design and build of certain key elements of the work package. It also highlights the importance of subcontracts (at all levels) clearly setting out the parties scope of services and/ or works on the project.