Contract schedules, deliverables and IR35

[Mutix]

Hi all,

Another 6 month renewal is now on the table for my current gig (yay!).

My contract is between my ltdco and agency A, who themselves deal with agency B, who is the HR provider for the end client.

The extension schedule drawn up by agency A does not include any deliverables.

The previous contracts for this gig (been there just over a year now) passed IR35 reviews with B&C and Qdos (and deliverables were added to the schedule as advised by B&C).

I have requested that deliverables be specified in this new schedule before I get it reviewed and signed, as I did for the previous renewal, but my agency is telling me that agency B is refusing on the basis that the contract is on a 'Time and Material' basis rather than 'Statement of Work', and have told the client that they cannot sign off any deliverables to be added to myco-agencyA contract as it would bypass them.

My line manager is happy to provide specific deliverables, as he did last time, but doesn't want to sign them off officially (after what he was told by agency B).

Agency A are happy to add deliverables to our contract without changing anything in the contract they have with agency B, as long as they've been signed off by the client...

How important is having specific deliverables when on a Time and Material contract?

I'm a bit worried in terms of IR35 implications; if no deliverables are specified, doesn't that imply some sort of MOO where myco is contracted to provide services for a specified time period but for no specific projects and is just expected to do whatever work comes up during that period?

Anyone else in a similar situation?

Cheers,

Mutix

[northernladuk]

Deliverables are very important as working under a blanket T&M contract would require Direction and Control which is very bad.

If they want you to be body onsite to do as they wish (like a permie) then I'd be having a good think about my future there. I'm making that comment based on the bare facts given. You will know a lot more about what goes on in reality though.

[TheCyclingProgrammer]

In the absence of specific deliverables (which might be hard to define for an ongoing project which is constantly evolving) then I'd say you need to at least get the scope of your services written into the contract. If you're being engaged to work on Project X, or a specific element of Project X, then that is what the contract should say.

The position you don't want to be in is where you're essentially a bum on seat that Client Co can move from project to project as and when they feel like it - you should be there to work on a specific thing and should not be under any obligation to accept any renewals or new work (nor should client be obliged to offer any) - this is where MOO comes in IMO. A good test would be: if the project you are working on finishes early for whatever reason (cancelled, development took less time, scope is cut due to budget constraints), would that be the end of the contract or would the client expect you to work on something else until your contract is up? If its the latter...I'd be worried.

All the projects I work on are developed in an iterative, agile manner and as such whilst there may be a general end goal, feature priority and what is to be developed in any given sprint might not be decided until the sprint planning meeting at the beginning of each sprint, so its hard for me to always be specific in my contract schedules what I'm working on in fine detail. But I always make it clear that I've been engaged to work on a specific project and on larger projects, what particular element I'm responsible (e.g. it could be an iPhone app, or the backend for an iPhone app that somebody else is developing, or sometimes both).

[Mutix]

Thanks for the responses.

Indeed, it's a tricky one as I'm providing services to a single team but work on a number of different projects within that team.

I build enterprise iOS apps for the client's employees to use, so by nature the projects are short and iterative - the employees act as the QA via beta releases of the apps, so the team tends to ship fairly fast and fix any issues reported by users as and when.

The apps are usually quite simple, so fast to build and ship, but they have an extensive catalog to maintain and get requests from the business to build new apps on an ad hoc basis.

My agency has come back with a list of deliverables, but starting with the following:

The Company shall provide Frontend iOS development services, in line with the standards and specifications established by the End-User. Such services shall include, but not be limited to, contributing to the following objectives:

Arguing that 'in line with the standards and specifications' simply means that the user stories will be defined by the client (fair enough) and not that the client can decide how I implement them.

The 'but not be limited to' I think stinks of MOO but the agency argues that realistically my role for the next 6 months can't be defined in a few bullet points and that I will clearly end up doing work that isn't listed in the deliverables, and when told that they should then issue new schedules for pieces of work outside the scope of the original one, they say it's not realistic...

Think it might be time to start looking for the next gig!

[TheCyclingProgrammer]

It sounds to me like they really just want an iOS developer to work on whatever apps they want. Not a contract I'd take on. It sounds like cover for a permie role to me. They are just looking for a resource rather than somebody for a specific project.

The problem here isn't agile, iterative development, or a continuous stream of new user stories and changing requirements, but simply the breadth of what the role covers.

"shall include, but not limited to" also seems like carte blanche for them asking you to do whatever they like. It sounds like there are numerous MOO and D&C issues here.

I think I'd be looking for a new gig too.

[WordIsBond]

If you want to stay and do this job, and the line manager is willing to specify deliverables but not formally sign off on them, you could get him to include them in a Confirmation of Working Practices document. It can specifically say that it has no legal force, so that may ease his concern. But since HMRC always says it is the actual working practices, rather than the contract, that is determinative, you probably have a reasonable case if the CWP is clear on your deliverables, even if the contract isn't.

But if you want to stay outside of IR35, you probably need to be looking to move elsewhere, if not now, after this renewal.

[sociopath]

Thanks for the responses.

Indeed, it's a tricky one as I'm providing services to a single team but work on a number of different projects within that team.

I build enterprise iOS apps for the client's employees to use, so by nature the projects are short and iterative - the employees act as the QA via beta releases of the apps, so the team tends to ship fairly fast and fix any issues reported by users as and when.

The apps are usually quite simple, so fast to build and ship, but they have an extensive catalog to maintain and get requests from the business to build new apps on an ad hoc basis.

My agency has come back with a list of deliverables, but starting with the following:



Arguing that 'in line with the standards and specifications' simply means that the user stories will be defined by the client (fair enough) and not that the client can decide how I implement them.

The 'but not be limited to' I think stinks of MOO but the agency argues that realistically my role for the next 6 months can't be defined in a few bullet points and that I will clearly end up doing work that isn't listed in the deliverables, and when told that they should then issue new schedules for pieces of work outside the scope of the original one, they say it's not realistic...

Think it might be time to start looking for the next gig!

They have come back with a list of deliverables or objectives?

[Mutix]

They came back with the list of deliverables I had (verbally) agreed with my line manager, with the quoted sentence appended to the beginning of it, effectively turning the specific deliverables into a non exhaustive list of objectives...

It turns out agency B is refusing any changes at all anyway and keeps saying that the contract is T&M and as such deliverables don't apply and that they cannot switch the contract to a fixed price basis (which they seem to think is the only way deliverables could be specified), oh and that their contract is 'IR35 proof'! Hah.

Anyhow, I'd rather not leave the client in bad terms on short notice (or no notice at all, since today was the last day of the contract) and I think it makes more sense financially to sign the extension with only the nature of services defined and no deliverables and carry on while I look for the next gig rather than be on the bench while searching.

you could get him to include them in a Confirmation of Working Practices document

Yeh, I actually drafted a CWP last time around and when I presented it to my line manager, he'd never seen or heard of one before, and straight away went to agency B to ask what they thought and they apparently advised him that "under no circumstances he should sign that".

In fact, the more I write about this and read myself back, the more ridiculous it all sounds. Thing is, no other contractor there seems to think anything of this. Sometimes I wonder if I'm being overly paranoid about IR35 because no one really seems to give a s***, be it other contractors there, the agencies involved, or the client themselves.

Have a good weekend!

[pr1]

In fact, the more I write about this and read myself back, the more ridiculous it all sounds. Thing is, no other contractor there seems to think anything of this. Sometimes I wonder if I'm being overly paranoid about IR35 because no one really seems to give a s***, be it other contractors there, the agencies involved, or the client themselves.

welcome to CUK