EXAMPLE OF A COMPLIANT SUBSTITUTION CLAUSE
The Supplier shall provide the services using suitably qualified personnel of their own choosing. The Supplier reserves the right to substitute any personnel, provided the Client is reasonably satisfied that any proposed substitute possess the necessary skills and qualifications for the satisfactory completion of the services. The Supplier will remain liable for the services completed by substitute personnel and will bear any costs
A contract without an explicit right of substitution will almost always fail a contract assessment. Attempted substitution clauses that contain the following will also cause a contract to fail assessment:
- If the Client is given sole discretion over a proposed substitution. In order for a subs clause to be valid, the client may only be able to reject a proposed substitute on reasonable grounds. Reasonable grounds would relate to the suitability of the proposed substitute, or security issues.
- If the Contractor is required to give anything more than reasonable notice of a proposed substitution – anything longer than 7 days can be seen as unreasonable (although more flexibility can be given to those with clients with particular security risks, such as the MOD)
- If the Client requires to “interview” a proposed substitute.
- Rights to subcontract do not constitute a right of substitution.