MOO, Direction, Substitution - Quick feedback

[scooby]

Contract is irrelevant if the working practices are different. And they almost certainly will be, judging by the wording of the contract at the moment.

Turns out the working practices are very different to the wording... They have changed it dramatically and I've documented the intention that we agreed so a legal bod can word it.

It's all unlikely to get that far, money is pants!

[TheFaQQer]

I couldn't agree more. This substitution clause really does not count in your favour.

My advice is the same as most on this post - negotiate a better IR35 friendly contract.

Contract is irrelevant if the working practices are different. And they almost certainly will be, judging by the wording of the contract at the moment.

[LisaContractorUmbrella]

Agree with the panel on status but disagree with the remedy.

"The Consultant to be provided for this work shall be John Smith. AComp reserve the right to terminate this Agreement if the Supplier does not provide the services of John Smith or provide an alternative who, at AComp's sole discretion, does not meet its needs"

The above clause was included in the contract because that is what client co wants to happen - the contract could be re-written to say "We don't care who does the work as long as Scooby thinks they're great because we love Scooby" but it wouldn't be worth the paper its written on if the reality of the situation is that it's Scooby or no-one. The way round it would be to explain Mal's Mr Ed analogy to them and hope that they get it

[Andrew at Boox]

I agree

MOO and D&C are a bit moot since they have made it a contract of service by naming the worker explicitly without reference to their intermediary. If you're worried about IR35, walk away, there's no way you can defend your position given the quoted clauses.

For the record, the first one isn't MOO but is too over-restrictive to be acceptable for RoS. The remainder are individually pointers towards D&C but taken as a whole - and bearing in mind this is probably the actuality of the engagement - you've got no chance.

I couldn't agree more. This substitution clause really does not count in your favour.

My advice is the same as most on this post - negotiate a better IR35 friendly contract.

[scooby]

True, but (a) the contract should be between YourCo and the Client as a contract for services and notwith a named individual as a contract of service and (b) such acceptance of a substitute shall not be unreasonably withheld, i.e. you can't refuse him just because he isn't Mr Ed if he has all the same abilitties and experience as Mr Ed.

I've a feeling that leading this horse to water, and getting the money i want to make it worth it, may be just be too much for this client...

[malvolio]

A talking horse?

You would say that was a fairly unique talent, wouldn't you? So if another one turned up, why not use it? You're not hiring it for its looks or its ability to pull a milk cart, after all...

[TheFaQQer]

True, but (a) the contract should be between YourCo and the Client as a contract for services and notwith a named individual as a contract of service and (b) such acceptance of a substitute shall not be unreasonably withheld, i.e. you can't refuse him just because he isn't Mr Ed if he has all the same abilitties and experience as Mr Ed.

A talking horse?

[malvolio]

I have this in my latest contract starting next year for a direct client. This was agreed by both my lawyer and the client's in-house lawyer as meeting all reasonable requirements around substitution.

(Fee schedule assumptions section) - That X's specific experience and understanding of Client’s environment was the key reason for this contract being awarded. X will undertake all of X's Company responsibilities towards Client and substitutions will only be permitted if Client expressly accepts that the substitution is of a suitable standard capable of replacing him.

I queried this at the time and my lawyer's view was that if work is given on the strength of a certain person's expertise, e.g. a highly skilled negotiator, then the client has every right to insist that that expert perform the services as long as the rate is commensurate with that expertise. It would be irresponsible if clients didn't have a mechanism for protecting their investment.

True, but (a) the contract should be between YourCo and the Client as a contract for services and notwith a named individual as a contract of service and (b) such acceptance of a substitute shall not be unreasonably withheld, i.e. you can't refuse him just because he isn't Mr Ed if he has all the same abilitties and experience as Mr Ed.

[craig1]

This is direct, so makes it a little easier, however i need to be blunt in the call with the procurement guy tomorrow. This wording and contract hasnt been reviewed, but is tulip! BIG TULIP! the whole thing is turning sour very quickly. No one person who has read this on here and PCG would accept... many are saying walk away now...

Am glad I'm not in a position where i need this work, and would happily walk away (then tender for the product they are procuring!! )

I have this in my latest contract starting next year for a direct client. This was agreed by both my lawyer and the client's in-house lawyer as meeting all reasonable requirements around substitution.

(Fee schedule assumptions section) - That X's specific experience and understanding of Client’s environment was the key reason for this contract being awarded. X will undertake all of X's Company responsibilities towards Client and substitutions will only be permitted if Client expressly accepts that the substitution is of a suitable standard capable of replacing him.

I queried this at the time and my lawyer's view was that if work is given on the strength of a certain person's expertise, e.g. a highly skilled negotiator, then the client has every right to insist that that expert perform the services as long as the rate is commensurate with that expertise. It would be irresponsible if clients didn't have a mechanism for protecting their investment.

[scooby]

If you use a professional contract review service such as Bauer & Cottrill, they will discuss your requirements first and arrange correct wording of the clauses that need to be inserted or changed.

If you have no legal expertise, do not try and do this yourself then expect a professional service to renegotiate in \ out the rubbish you may have asked the agent to change in the contract.

This is direct, so makes it a little easier, however i need to be blunt in the call with the procurement guy tomorrow. This wording and contract hasnt been reviewed, but is tulip! BIG TULIP! the whole thing is turning sour very quickly. No one person who has read this on here and PCG would accept... many are saying walk away now...

Am glad I'm not in a position where i need this work, and would happily walk away (then tender for the product they are procuring!! )

[BolshieBastard]

Contract will be going in for review, but have a conversation with the client tomorrow, which is already not going to be easy (money proposed is way off the mark...). As i want to agree everything before the contract goes for review, can someone give their view on the following points please:


Quick question, as the who thing is starting to turn sour based on the initial proposal, how does the following read for IR35:

• The Consultant to be provided for this work shall be John Smith. AComp reserve the right to terminate this Agreement if the Supplier does not provide the services of John Smith or provide an alternative who, at AComp's sole discretion, does not meet its needs - Is this MOO and substitution out of the window?

• Provide the following deliverables
o Deliverable 1 A detailed project plan, including, but limited to, monthly deliverables against which the Supplier’s services can be measured. This Project plan must be approved by AComp before becoming effective. - Control and direction??
o Deliverables 2-8, which will be the monthly deliverables (February-August 2012) agreed on deliverable 1
o Deliverable 9 – which shall be completion of the project or, were completion has not been possible because of AComp’s actions, a clear report showing what further
• At times act as a representative of AComp, although in no case will he be either an agent for or an employee of AComp, this Agreement gives no Consultant no rights to direct AComp staff or make commitments of behalf of AComp. employee? Direction and control?
• Be free to undertake the necessary work to fulfil these services in AComp offices or at the Supplier’s premises, payment will at all times be based on successful and satisfactory delivery of the agreed deliverables, not on the number of days worked. - Is this control and direction?

There are clauses to state no sub-contracting, doesn't that rule out substitution?

Cheers,
Scoobs

If you use a professional contract review service such as Bauer & Cottrill, they will discuss your requirements first and arrange correct wording of the clauses that need to be inserted or changed.

If you have no legal expertise, do not try and do this yourself then expect a professional service to renegotiate in \ out the rubbish you may have asked the agent to change in the contract.

[scooby]

MOO and D&C are a bit moot since they have made it a contract of service by naming the worker explicitly without reference to their intermediary. If you're worried about IR35, walk away, there's no way you can defend your position given the quoted clauses.

For the record, the first one isn't MOO but is too over-restrictive to be acceptable for RoS. The remainder are individually pointers towards D&C but taken as a whole - and bearing in mind this is probably the actuality of the engagement - you've got no chance.

So even without a review, my own interpretation was correct! Cheers Mal. I suppose the naming and it being a contract of service means AWR may be a issue too, especially as their HR dont get it and limited all contractors to 18mths...

Actually, in reality, they let me do everything how i want. This is a reason they've asked me back, they want someone external to manage in a none internal way!

[TheFaQQer]

• The Consultant to be provided for this work shall be John Smith. AComp reserve the right to terminate this Agreement if the Supplier does not provide the services of John Smith or provide an alternative who, at AComp's sole discretion, does not meet its needs - Is this MOO and substitution out of the window?

Not MOO, but the substitution clause is so restrictive that it means that essentially this is a contract of service. So, the rest of the clauses are pretty irrelevant, as far as I'm concerned.

From an IR35 perspective, I'd walk. The only way I'd consider this one would be to include a premium for being inside IR35, which if money is already an issue isn't going to happen.

Maybe if you have something like Qdos TLC35 insurance which would cover the cost of an investigation and any penalties, then it might be worthwhile considering - whether they would touch this one is a different question, though.

[malvolio]

Contract will be going in for review, but have a conversation with the client tomorrow, which is already not going to be easy (money proposed is way off the mark...). As i want to agree everything before the contract goes for review, can someone give their view on the following points please:


Quick question, as the who thing is starting to turn sour based on the initial proposal, how does the following read for IR35:

• The Consultant to be provided for this work shall be John Smith. AComp reserve the right to terminate this Agreement if the Supplier does not provide the services of John Smith or provide an alternative who, at AComp's sole discretion, does not meet its needs - Is this MOO and substitution out of the window?

• Provide the following deliverables
o Deliverable 1 A detailed project plan, including, but limited to, monthly deliverables against which the Supplier’s services can be measured. This Project plan must be approved by AComp before becoming effective. - Control and direction??
o Deliverables 2-8, which will be the monthly deliverables (February-August 2012) agreed on deliverable 1
o Deliverable 9 – which shall be completion of the project or, were completion has not been possible because of AComp’s actions, a clear report showing what further
• At times act as a representative of AComp, although in no case will he be either an agent for or an employee of AComp, this Agreement gives no Consultant no rights to direct AComp staff or make commitments of behalf of AComp. employee? Direction and control?
• Be free to undertake the necessary work to fulfil these services in AComp offices or at the Supplier’s premises, payment will at all times be based on successful and satisfactory delivery of the agreed deliverables, not on the number of days worked. - Is this control and direction?

There are clauses to state no sub-contracting, doesn't that rule out substitution?

Cheers,
Scoobs

MOO and D&C are a bit moot since they have made it a contract of service by naming the worker explicitly without reference to their intermediary. If you're worried about IR35, walk away, there's no way you can defend your position given the quoted clauses.

For the record, the first one isn't MOO but is too over-restrictive to be acceptable for RoS. The remainder are individually pointers towards D&C but taken as a whole - and bearing in mind this is probably the actuality of the engagement - you've got no chance.

[scooby]

Contract will be going in for review, but have a conversation with the client tomorrow, which is already not going to be easy (money proposed is way off the mark...). As i want to agree everything before the contract goes for review, can someone give their view on the following points please:


Quick question, as the who thing is starting to turn sour based on the initial proposal, how does the following read for IR35:

• The Consultant to be provided for this work shall be John Smith. AComp reserve the right to terminate this Agreement if the Supplier does not provide the services of John Smith or provide an alternative who, at AComp's sole discretion, does not meet its needs - Is this MOO and substitution out of the window?

• Provide the following deliverables
o Deliverable 1 A detailed project plan, including, but limited to, monthly deliverables against which the Supplier’s services can be measured. This Project plan must be approved by AComp before becoming effective. - Control and direction??
o Deliverables 2-8, which will be the monthly deliverables (February-August 2012) agreed on deliverable 1
o Deliverable 9 – which shall be completion of the project or, were completion has not been possible because of AComp’s actions, a clear report showing what further
• At times act as a representative of AComp, although in no case will he be either an agent for or an employee of AComp, this Agreement gives no Consultant no rights to direct AComp staff or make commitments of behalf of AComp. employee? Direction and control?
• Be free to undertake the necessary work to fulfil these services in AComp offices or at the Supplier’s premises, payment will at all times be based on successful and satisfactory delivery of the agreed deliverables, not on the number of days worked. - Is this control and direction?

There are clauses to state no sub-contracting, doesn't that rule out substitution?

Cheers,
Scoobs