Last edited 06 Jul 2023

Substitute

Contents

[edit] What is a substitute in terms of construction?

A substitute in general building and construction terms refers to changes made to an original agreement, such changes can fall into a number of different categories and be for products, materials, equipment, methods of construction and even personnel or contractors. It is a very complex area within the design and construction field that can relate to contract law, construction law, liability, standards as well as off-payroll working rules. In terms of the former it is important to note that in general most contracts usually do not permit any form of substitution by a contractor without approval from the contract administrator, who is acting on behalf of the client. In terms of working rules, though again complex it may be safe to assume that the same is true, in that substitution is not acceptable under normal conditions unless with prior agreement as maybe specifically noted within a contract or potentially as a result of extenuating circumstances. .

[edit] Products and materials

In terms of products and materials there will be differences in how and if the issue of substitution arises depending on whether a performance specification is being used or a prescriptive specification and the details of the contract. There are many different terms and phrases that might be related to the subject of substitution, in connection to building projects, many of which have quite specific legal and contractual meanings such as;

Formally any items that require a change from those agreed in the contract documents to those proposed by contractor need to be done so by prior or later agreement. This is often referred to as a variation, which is a formal request by the contractor to the client, clients agent, Architect or contract administrator, to substitute a particular product with one that might be considered equal or superior in terms of performance, for example from a specific brand to an alternative, because of cost, environmental or program reasons. The variation or substitute product has to then be approved by the contract administrator before it can be used to replace the product that was formally agreed, as part of the process reasons for the change will most likely be required as well as supporting information such as the new product performance data, certification, safety tests and samples.

If the new substituted product also impacts design details then it is likely that new or amended as built drawings and reports will be required which may have associated costs or time considerations.

[edit] Contractors and personnel

In terms of the actual contractor themself, this can be an equally complex issue that relates in detail, to whether a client is paying for the services of a particular individual or contractor or just for the service as it were, irrespective of whom delivers it. The HMRC internal Employment Status Manual describes some of the issues relating to substitution in terms of contactor performance: “Many contracts contain clauses that appear to give a right of substitution. It seems likely that many of these clauses have only been inserted to try and break the requirement for personal service and change the contract from one of service to one for services. Normally a client requires the services of a particular worker and a substitute would not be acceptable so there must be doubts about the validity of such clauses.”

[edit] Possible reasons for a substitution

There are a number of different reasons as to why a substitution may be needed on a construction project, some may be seen as acceptable others as not, some examples might be;

[edit] Related articles on Designing Buildings

[edit] External Links

https://www.gov.uk/guidance/understanding-off-payroll-working-ir35

https://www.gov.uk/hmrc-internal-manuals/employment-status-manual/esm8565.

https://www.thenbs.com/knowledge/substitution-and-beyond.

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