Last edited 12 Feb 2016

Reasonable objection to a named specialist

In February 2013, a change was introduced to the JCT Standard Building Contract 2011 enabling an employer to identify specialists to be used as domestic sub-contractors (that is specialists subcontracted by the main contractor) for identified parts of the works by appropriate entry in the contract particulars. This provides the opportunity for the employer to select a sub-contractor with particular expertise, whilst leaving responsibility for their performance with the main contractor.

There are two ways in which the specialist provisions operate:

Pre-named specialist: The specialist may be named in the contract together with the work to be carried out.
Post-named specialist: A provisional sum may be inserted in the bill of quantities, allowing the contract administrator to issue an instruction to name the specialist and identify the works required.

Upon receiving an instruction from the contract administrator in relation to a post-named specialist or a replacement specialist, the contractor is able to raise reasonable objection within seven days. The contract administrator then has a further seven days to either:

Name an alternative specialist.
Instruct the contractor to undertake the work itself or through its own sub-contractor.
Omit the work altogether.

The grounds for reasonable objection by the contractor could include:

The specialist has a poor safety record.
If there are reasonable grounds for believing that the specialist may not be financially secure, solvent, reliable or technically competent.
If the tender sum is not believed to be financially viable.
Where the programme is deemed to be unreasonable.

Similar provisions are permitted where the contractor is unable to enter into a contract with the named specialist, or where the contractor terminates the specialist’s employment.

If the contractor proposes their own specialist, the employer has seven days from the point at which the contractor notifies them of the proposed replacement to raise any reasonable objection themselves.

The employer may object to the proposed specialist on the grounds that there will be a sub-standard performance. However, since the contractor remains responsible for the performance under the contract, it is rare that such an objection would be deemed valid. Where the employer has a realistic concern that liquidated damages for any delay that arises due to sub-standard performance is an inadequate remedy, the objection may be judged to be reasonable. Likewise if the employer has concerns about the contractor having the resources to fulfil their obligations in the event of things going wrong.