Comparative analysis of back-to-back subcontracts in the construction and telecommunications industries. Issue 4 (7th September 2015) - Nielsen, Lars-Henrik Kvist
Abstract : Purpose: – "Back-to-back" contracts are widely used in the engineering and construction industry and are recently spreading into the telecommunication industry. In back-to-back contracts, the principals require the main contractors to assume majority of the liability in delivering a project and in turn, the main contractors try to allocate most of that liability to their subcontractors. The successful delivery of the projects hinges on how the contracts are drafted and risks are allocated between the parties involved. The purpose of this paper is to undertake a comparative analysis of "back-to-back" subcontracts in the telecommunication and construction industries. Design/methodology/approach: – By examining contracting practices and texts from contract documents for the telecommunication and construction industries, this paper reveals how certain aspects of "back-to-back" contracts lose their meaning when seen out of context. Using comparative research method, this paper discusses reasons why the adoption of "back-to-back" contracts should be a matter of degree, based on the business strategy and relevance to the intended transactions rather than on the typical model of "back-to-back" contracts. Findings: – Good contracting practices should be such as to enable parties negotiate the contract terms to ensure clarity and common understanding before commencing the project. Construction universally adopts back-to-back even for minor straightforward works, an approach supported by readily available industry model contracts as well as the traditional tender process (design before construction). In telecoms, back-to-back is mainly desired where the subcontractor has a major part of the scope, whereas minor subcontractor scope is considered "leverage commodity" where suppliers are engaged using in-house contract templates, often in a frame contract arrangement, to satisfy corporate strategies for supplier management and pricing. Originality/value: – This paper provides value by presenting an insightful review of the nature of back-to-back contracting practices in the telecommunication and construction industries. The paper outlines advantages, disadvantages and opportunities for improving "back-to-back" contracting practices in the telecommunication and construction industries.