In any construction job, there will inevitably be the use of subcontractors. The subcontractor is usually appointed by the Contractor to perform a part of the construction works. However, there are times where one finds that their agreement makes reference to a nominated Subcontractor and a Selected Subcontractor. It is important to understand the difference between the two as they may have implications for the Employer.
In Minister of Public Works and Land Affairs v Group Five Building Ltd, the Court laid out the essential elements of a Nominated Subcontractor :
? Its first essential quality is that the Employer reserves the right to nominate as Subcontractors particular persons to perform specified parts of the overall works.
? A second essential feature is that the Contractor is obliged to accept the nomination, subject to a limited, but nevertheless important, right of challenge.
? A third is that the Contractor must enter into a subcontract with the person nominated, usually one containing the same terms, particularly as to performance, as those contained in the main contract.
? The Contractor has no control over the appointment of nominated subcontractors. Accordingly, if there is any delay in the appointment of such a subcontractor for whatever reasons, the Employer is liable for any expenses and costs that the main Contractor may incur as a result.
? The Contractor is liable for any default of a selected subcontractor except where the default of the nominated subcontractor delays the Contractor in the completion of his contract he is entitled to an extension of time.
A Selected Subcontractor is one that is employed at the discretion of the Contractor. A Nominated Subcontractor on the other hand is nominated by the Employer usually to complete a specialised part of the works. There is no contract between the Employer and the Nominated Subcontractor. This distinction is important to determine who is responsible for any delays in the works and in determining where liability lies if things go wrong