Sample JCT Subcontract Risk Scorecard: What High-Risk Amendments Look Like
Specialist trade contractors frequently receive tender documents consisting of standard-form covers paired with extensive bespoke schedules of amendments. Below is an illustrative sample showing how an automated diagnostic audit flags and evaluates high-risk clause alterations against the unamended JCT Design and Build Sub-Contract Conditions 2016 (DBSub/C 2016).
Illustrative Screening Overview
- Document Evaluated: Example Bespoke Schedule of Amendments (evaluated against JCT DBSub/C 2016 conditions used with the DB 2016 main contract)
- Primary Review Focus: Clause 2 Delay Liabilities, Clause 3 Direction Mechanics, Clause 4 Payment Windows, Bespoke Set-Off
- Audit Processing Time: Completed in under 2 minutes
- Overall Risk Profile: Elevated commercial exposure requiring tender qualifications
Summary Scorecard: JCT DBSub/C 2016 vs Example Bespoke Amendments
This matrix illustrates four example amendments identified during a commercial screening and benchmarks them against the standard JCT Design and Build Subcontract (DBSub/C 2016) baseline:
| Contract Clause | Standard JCT DBSub/C 2016 Position | Example Bespoke Amendment | Risk Level |
|---|---|---|---|
| Clause 2.17 Delay Notices | Notice required “forthwith” upon delay becoming reasonably apparent. | Strict 3-day written notice drafted as an express condition precedent to any Extension of Time. | High Risk |
| Clause 3.7 Oral Directions | Direction confirmed in writing takes effect unless dissented from within 7 calendar days. | Deemed confirmation deleted. Varied work will not be valued without prior written Director approval. | Valuation Risk |
| Clause 4.7 Payment Cycle | Final Date for Payment 14 days from Due Date. Pay Less Notice due no later than 5 days before the Final Date for Payment. | Final Date for Payment extended to 60 days. Pay Less Notice period compressed to 24 hours. | Medium Risk |
| Bespoke Section 4 Set-Off Rights | Deductions governed under specific subcontract terms and Section 111 rules. | Clause purports to allow unilateral set-off of unliquidated claims from any other project between the parties. | High Risk |
Detailed Breakdown of Scorecard Findings
Finding 1: The 3-Day Delay Notice Condition Precedent (Clause 2.17)
The Identified Clause: “Compliance with the 3-day notice requirement under Clause 2.17.1 shall be a strict condition precedent to any entitlement to an extension of time or relief from delay damages.”
Commercial Analysis: While standard JCT DBSub/C 2016 phrasing allows commercial flexibility through the word “forthwith”, a condition precedent makes notification strictly mandatory. If notice is delayed beyond three days due to site operations, the contractual entitlement to an extension of time may be lost, leaving the subcontractor vulnerable to upstream delay claims.
Suggested Negotiation Prompt: Seek to replace the condition precedent with reciprocal notification periods or adjust the window to 10 working days from awareness of the critical delay.
Finding 2: Deletion of Deemed Confirmation for Oral Directions (Clause 3.7)
The Identified Clause: “Clause 3.7.2 is hereby deleted. The Contractor shall not be liable for the valuation of any varied work unless instructed in advance by an authorised written Change Order signed by a Commercial Director.”
Commercial Analysis: Under unamended JCT DBSub/C 2016 Clause 3.7, if a subcontractor confirms an oral direction in writing and the contractor does not dissent within 7 calendar days, it takes effect as a direction in writing. This bespoke amendment removes that mechanism and stipulates that varied work will not be valued without prior written Director approval. This creates a significant valuation risk: work instructed verbally on site may proceed without an agreed contractual entitlement to payment.
Suggested Negotiation Prompt: Re-insert standard JCT confirmation mechanics or establish clear delegated site authority limits for urgent variations.
Finding 3: Extended Credit Windows and Compressed Pay Less Notices (Clause 4.7)
The Identified Clause: “The Final Date for Payment shall be 60 calendar days from the Due Date. The prescribed period for a Pay Less Notice shall be 1 day prior to the Final Date for Payment.”
Commercial Analysis: In England, Wales, and Scotland, commercial parties have statutory freedom under the Construction Act 1996 to agree the duration to the Final Date for Payment. However, combining a 60-day credit period with a 24-hour Pay Less Notice window creates substantial cash flow friction. The subcontractor finances labour and materials for two months, only to potentially receive a deduction notice the day before payment.
Suggested Negotiation Prompt: Qualify the tender by requesting standard JCT 14- or 21-day final payment terms and retaining the standard period of no later than 5 days before the Final Date for Payment for Pay Less Notices.
Finding 4: Cross-Contract Set-Off Provisions (Bespoke Addition)
The Identified Clause: “The Contractor may withhold or set off any sum alleged to be due or payable from the Sub-Contractor under this Sub-Contract against any payment due under any other contract between the parties.”
Commercial Analysis: This bespoke term purports to allow cross-contract set-off between separate commercial agreements. If a dispute or contra-charge arises on an unrelated project, the contractor may seek to rely on this clause to withhold certified payments on this development, compromising working capital across separate contracts.
Suggested Negotiation Prompt: Request deletion of the cross-contract set-off clause to restrict deductions solely to the rights and liabilities of this specific subcontract.
Review Subcontract Amendments Before You Sign
Scan a draft subcontract for clauses that may need closer review. Get a quick summary and suggested drafting prompts to discuss with your commercial adviser in under 2 minutes. Results provide general commercial guidance, not legal advice.
Run the Free Contract Diagnostic →Frequently Asked Questions: Subcontract Risk Scorecards
What is an illustrative JCT subcontract risk scorecard?
An illustrative JCT subcontract risk scorecard is a structured commercial example comparing draft bespoke amendments against standard unamended JCT subcontract provisions to identify elevated liabilities.
Does silence confirm an oral direction under JCT DBSub/C 2016?
Under unamended standard JCT DBSub/C 2016 Clause 3.7, if a subcontractor confirms an oral direction in writing and the contractor does not dissent within 7 calendar days, it takes effect as a direction in writing. However, bespoke amendments may delete or alter this deemed confirmation mechanism.
How quickly can a subcontract schedule of amendments be screened?
Using automated commercial risk screening, a draft agreement and bespoke schedule of amendments can be scanned to flag clauses for commercial review in under 2 minutes.