Prohibition Against Subcontracting Provision

A Prohibition Against Subcontracting Provision is a contractual provision that restricts a contractor party's ability to delegate or assign any part of the work to another party without the prior written consent of the original contracting entity.

• Context:
  • It can (typically) ensure that the contracting entity can rely on the specific capabilities, qualifications, and reputation of the contractor with whom they have agreed to work.
  • It can require the contractor to obtain prior written consent from the contracting entity before subcontracting any part of the work, providing a safeguard to maintain oversight over the work.
  • It can, if violated, lead to the subcontract being considered null and void, potential legal disputes, or even termination of the original contract.
  • It can be related to other contractual mechanisms designed to ensure compliance with legal, ethical, and performance standards, such as prohibitions against assignment and discrimination, and restrictions on transferability.
  • It can (often) be found in a:
    • Scope of Work Clause: to ensure that the work described is carried out directly by the contractor, maintaining the quality and accountability standards expected by the client.
    • Assignment and Delegation Clause: to ensure that the contractor cannot unilaterally decide to pass on the contractual duties to another entity.
    • Quality Control and Standards Clause: to ensure that the contractor’s direct involvement is required to meet the quality expectations.
    • Confidentiality and Security Clause: to control and limit access to sensitive information.
    • Termination Clause: to ensure that it can be grounds for termination (which underscores the importance of compliance with this provision).
    • ...
  • ...
• Example(s):
  • "The Service Provider agrees not to delegate, assign, or subcontract any duties or responsibilities under this Agreement to a third party without obtaining the explicit written consent of the Client."
  • "The Consultant is expressly prohibited from engaging any subcontractors in the execution of the tasks outlined in this Contract unless the written approval of the Company precedes such action."
  • ...
• Counter-Example(s):
  • An Unrestricted Subcontracting Provision, e.g. in a Partnership Agreement (where parties are encouraged to bring in additional subcontractors to fulfill the project requirements).
• See: Contractual Provision, Subcontractor, Contract Termination, Contractual Compliance

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References

2023

• https://lawinsider.com/clause/prohibition-against-subcontracting
  • PROHIBITION AGAINST SUBCONTRACTING. Contractor shall not subcontract out any of the work to be performed by it under this Agreement without the prior written consent of Distribution Corporation. Sample 1
  • PROHIBITION AGAINST SUBCONTRACTING. No performance of this Agreement, or any part thereof, shall not be subcontracted by SUBCONTRACTOR. Any subcontract shall be null and void and shall. Sample 1
  • PROHIBITION AGAINST SUBCONTRACTING. Contractor may not use a subcontractor for any part of the work to be performed under this Contract except with the prior written consent of the Town. Sample 1
  • PROHIBITION AGAINST SUBCONTRACTING. Agent shall not subcontract out any of the work to be performed by him under this Agreement without the prior written consent of Horizon. Sample 1
  • PROHIBITION AGAINST SUBCONTRACTING. Xxxx shall not subcontract out any of the work to be performed by him under this Contract without the prior written consent of Xxxxxx. Sample 1
  • PROHIBITION AGAINST SUBCONTRACTING. County has relied, in entering into the Agreement, on the reputation of and on obtaining the personal performance of Contractor itself. Consequently, no performance of the Agreement, or any portion thereof, shall be subcontracted by Contractor.‌ Sample 1 Sample 2
  • PROHIBITION AGAINST SUBCONTRACTING. Consultant shall not subcontract out any of the work to be performed by it under this Agreement without the prior written consent of National Fuel.

2024

• Claude 3
  • Yes, I am familiar with Prohibition Against Subcontracting provisions in contracts. This type of clause is commonly used in service contracts or agreements where the hiring party wants to ensure that the contracted work is performed directly by the party they hired, rather than being delegated or subcontracted out to a third party without their knowledge or consent.
    • Restricts the contractor's right to subcontract: It expressly prohibits the contractor from assigning, delegating, or subcontracting any part of the agreed-upon work to another party.
    • Requires prior written consent: If the contractor wishes to subcontract any portion of the work, they must first obtain the written permission of the hiring party.
    • Ensures direct performance: The provision aims to guarantee that the contracted work is carried out by the party with whom the agreement was originally made, as their specific skills, experience, or qualifications may have been a crucial factor in the decision to enter into the contract.
    • Maintains control and accountability: By limiting subcontracting, the hiring party maintains more control over who performs the work and can hold the original contractor accountable for the quality and timely completion of the work.
    • ...
  • Sure, here are two examples of Prohibition Against Subcontracting provisions in different types of contracts:
    • Construction Contract "Prohibition Against Subcontracting: The Contractor shall not assign, delegate, or subcontract any part of the work under this Agreement without the Owner's prior written consent. If the Contractor desires to subcontract any portion of the work, it shall submit a written request to the Owner, specifying the scope of work and the proposed subcontractor. The Owner reserves the right to approve or reject any proposed subcontractor. If approved, the Contractor shall remain fully responsible for the performance of the subcontractor and the completion of the work in accordance with this Agreement."
    • Consulting Services Agreement "Prohibition Against Assignment and Delegation: The Consultant shall not assign, delegate, or subcontract any of its rights, duties, or obligations under this Agreement without the prior written approval of the Client. The Consultant acknowledges that the Client has entered into this Agreement based on the Consultant's specific expertise, skills, and experience. Therefore, any attempt by the Consultant to assign, delegate, or subcontract any part of the services without the Client's written consent shall be deemed a material breach of this Agreement, entitling the Client to terminate the Agreement immediately and seek appropriate remedies."

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