Staying in the same public sector contract after April 2017

[malvolio]

No, this is more to do with there being various framework agreements for the hiring of external resources into PS contracts. CLOne are almost certainly going to be treated as IR35 caught. Others, where you are providing explicit skills for a single purpose (e.g. knowledge of a particular COTS application) or providing genuine 3rd party supplies (e.g. tin and wires or bespoke software) won't be. So there is potentially an easy escape route that has to be closed off. What they are checking is that staff are being taken on under the appropriate contractual framework.

[jamesbrown]

No, this is more to do with there being various framework agreements for the hiring of external resources into PS contracts. CLOne are almost certainly going to be treated as IR35 caught. Others, where you are providing explicit skills for a single purpose (e.g. knowledge of a particular COTS application) or providing genuine 3rd party supplies (e.g. tin and wires or bespoke software) won't be. So there is potentially an easy escape route that has to be closed off. What they are checking is that staff are being taken on under the appropriate contractual framework.

That seems a little optimistic to me. Let's say that you provide a "genuine 3rd party supply" through an agency; where's the evidence in the consultation that the agent would not be responsible for determining status under a particular procurement framework? What, specifically, in the legislation is going to give them the confidence they need to make a realistic assessment? You can't legislate for framework agreements. You can provide guidance, but is an agent going to care? I don't think anyone is going to be making distinctions about frameworks and what is "genuine" unless specific frameworks are excluded, explicitly, and, of course, they aren't.

[malvolio]

That seems a little optimistic to me. Let's say that you provide a "genuine 3rd party supply" through an agency; where's the evidence in the consultation that the agent would not be responsible for determining status under a particular procurement framework? What, specifically, in the legislation is going to give them the confidence they need to make a realistic assessment? You can't legislate for framework agreements. You can provide guidance, but is an agent going to care? I don't think anyone is going to be making distinctions about frameworks and what is "genuine" unless specific frameworks are excluded, explicitly, and, of course, they aren't.

Ermm... The whole point of the various framework agreements is to classify suppliers properly. In our terms that means manpower replacements (90% or so of all IT contractors) vs third party suppliers. The Agency/Client contract will be subject to one or other frameworks. And yes, you can legislate for them.

[nucastle]

No, this is more to do with there being various framework agreements for the hiring of external resources into PS contracts. CLOne are almost certainly going to be treated as IR35 caught. Others, where you are providing explicit skills for a single purpose (e.g. knowledge of a particular COTS application) or providing genuine 3rd party supplies (e.g. tin and wires or bespoke software) won't be. So there is potentially an easy escape route that has to be closed off. What they are checking is that staff are being taken on under the appropriate contractual framework.

Well that is good news to me at least. I was wondering why they cared so much and it instantly got my spider sense tingling.

[jamesbrown]

Ermm... The whole point of the various framework agreements is to classify suppliers properly. In our terms that means manpower replacements (90% or so of all IT contractors) vs third party suppliers. The Agency/Client contract will be subject to one or other frameworks. And yes, you can legislate for them.

It depends what you mean by legislate. They aren't about to put clauses on framework agreements in 8(2) of the ITEPA, which is presumably where this will go. Also, while CL1 will obviously require a determination, there is no explicit mapping between framework agreements and supplies for which a determination may or may not be required. Indeed, they haven't definitely ruled out any third-party supplies (it was a point of consultation). All you really have is Example 4 in the consultation, which is an extreme example. I can't see how G-Cloud or ConsultancyOne or whatever other BS frameworks that the PS is currently using (fortunately, I don't work for the PS) are going to be legislated as not requiring a determination and, if a third party needs to make that determination, I can't see it being outside.

[northernladuk]

Dunno if it adds anything but they cleaned Gcloud up and moved any supplying single bids off it this last round.

[jamesbrown]

Dunno if it adds anything but they cleaned Gcloud up and moved any supplying single bids off it this last round.

As an outside observer, it does seem as though they're getting their house in order w/r to ensuring that existing frameworks aren't being abused and identifying where SD&C definitely applies (e.g. Eek posted some links to updated guidance on contingent labour a while back) - which I assume is the main point that Mal is making - but my skepticism stems from HMRC/HMG not being in the business of precision or legislating for negative cases, i.e. what isn't caught. They always prefer constructive ambiguity, and having the risk transferred away from the supplier to the last intermediary in the chain completely changes the risk/reward.

[youngguy]

I just got an agent email, about a contract role with HM Treasury. I took great delight in explaining why I would no longer be taking on PS clients (least of all that dept!)

[BlasterBates]

I think Neil99 makes a very good point. The changes in the legislation are not to IR35 that doesn't change, it is essentially that the onus is on the agency or public sector body to determine your IR35 status.

This means if you are outside IR35 and the agency or public service decides after April 2017 you are inside IR35 and you agree by signing the extension. that this would mean effectively you were always inside IR35 but you had incorrectly determined yourself to be outside IR35, unless of course you can point to changes in the working conditions.

[Old Greg]

I just got an agent email, about a contract role with HM Treasury. I took great delight in explaining why I would no longer be taking on PS clients (least of all that dept!)

I don't live in the UK anymore but when I get agents emailing me for gigs in the NHS, I always reply that I would be delighted to as long as they can guarantee it will be outside IR35 from April 2017.