We are a subcontractor being engaged by a main contractor under the ECS. With the exception of any employer’s risks listed in contract data part one, what are the implications of not listing all other matters from the risk register in contract data part two?
It is also important to understand that the risk register is a management tool for you and the main contractor to use to manage risks, whoever those risks lie with. As part of that, if any party feels that any risk, whether it be the employer’s, the main contractor’s or yours, can be put in the entries in the contract data if any party feels that it is something that needs to be properly managed. Note we are talking here about all risks to the time, cost or quality of the project, not those listed in clause 80.1. For example, compensation events listed in your subcontract are at the main contractor’s risk, in the same way as compensation events in the main contract are the employer’s risks.
There is no monetary penalty if a risk is not listed in the contract data that later happens. However, clause 16.1 requires you to notify early warnings about matters that you know of that may be a risk to time, cost or quality. If you fail to provide an early warning when you should have, and that later turns into a compensation event, then that compensation event is assessed as if you did notify the early warning as long as the main contractor has told you about it when instructing the quotation – see clauses 61.6 and 63.5. It is essential therefore, that once the contract is made you notify early warnings of the matters listed in clause 16.1.