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Exactly when, or in what circumstances, it is sensible to avert your eyes from new IT contract offers might sound like an odd consideration for freelancers to make, particularly during a recession. However the economic slowdown has given rise to the issue. Lower pay rates are inspiring contractors to look elsewhere, but they worry their flirtation with new commitments could cause them to come unstuck in their current role, even if that role has only been verbally agreed, or evidenced with an initial paperwork, like a proposed schedule. Contractors fear that their current role could impede their ability to fulfil another commitment, and, similarly, the new commitment could cause them problems with their existing one. So, is there a time or circumstance when contractors should stop actively searching for new jobs? Michael Coyle, director of Lawdit, a legal firm specialising in intellectual property, internet and technology law: 'I suppose that the best answer would be ‘never’! It’s always good to keep your options open not least because the current job will end one day. From a legal perspective, IT freelancers can only be secure knowing that the gig is ‘in the bag’ on signing the contract. If anything did go wrong from the client’s or agency’s perspective, the contractor would have to pay their notice period (at the very least). But if you have negotiated from a position of strength then termination would be an unattractive option. Nothing in life is certain (death and taxes apart!) so all roles could be said to be ‘fair game’ before signing the contract, which is enforceable and legally binding. 'It is worth noting that verbal agreements, about pay or other terms, can be incorporated into a contract at any stage and can even form the contract in its entirety. The terms of a contract need not be written and it is for this reason that many contracts have what is known as an ‘entire agreement’ clause, ostensibly to restrict the terms of the contract to those signed and exclude oral representations. 'Contracts by necessity are often interpreted by the courts as desirably flexible, in order to match the demands and nature of business people and the commercial world. There may be good reasons for variation. That said, unilateral variation of the terms of a contract or offer, whether written or oral, can create a breach of contract or invalidate the contract resulting from the offer, allowing non-performance or part-performance.' John Waine, The #1 Coach for IT People, and author of The IT Contractor Guide to Interview Success: 'Even when IT contracts are signed and sealed, whose to say that the client doesn't suddenly decide, because of ‘restructuring’ or the ‘current climate,’ that the project needs to be canned? This happened to a group of contractors I knew. They all moved contracts because this new contract was in a better location. But after just two weeks, word came through that the project was no more and all the contractors were "dismissed" without a goodbye, leaving them with no time to look for another role before being made jobless. So for many IT contractors when, if at all, to resist active job-searching should come down to their own individual gut feeling. 'Similarly, when contractors get that certain feeling that freelancing , or their current role, has lost it's heart, it's best at that stage to start looking for a positive alternative. Contractors may be able to string it along for a while, but they probably won't be doing themselves, their agent or their company any favours. Almost needless to say, such an ‘out of sorts’ feelings with IT contracting tend to arise with age.' John Brazier, managing director of the Professional Contractors Group, the trade body for freelance contractors: ‘Those who have been freelancing for some time will tell you that the key to survival, and even flourishing in slack periods or indeed a recession, is to ensure that you keep marketing yourself even when you have plenty of work. A freelancer should look upon himself or herself as a product that is continually evolving and developing.’ Richard Robson, a former director of the PCG, and managing director of Project Pilots, an IT consultancy: ’Consultants can sometimes find themselves in a difficult situation – when their expertise wants to be used by two companies competing in the same marketplace. Any consultant should get their contract reviewed by a professional so that it doesn't restrain you from trading with others. If the contract is not explicit it is not contractually binding and a consultant is free to work for any client. ‘If client ‘A’ is not happy, then he may terminate your contract. As a matter of delicate commercial sensitivity, it should be handled accordingly. A consultant should weigh up the losses if faced with this situation - both financially and professionally. If taking the second contract will cost you the first, can you afford to damage your reputation? Under no circumstances should you start a contract with client ‘B’ until you've told client A and made a responsible decision. Don't be greedy and rush for the increased rewards. Such a short-sighted decision could cost you dearly! ‘Without an explicit contract a consultant is free to seek further engagements with any client he chooses but as a matter of professional ethics, bring it to client A's attention - it gives them an opportunity to convince you not to but it also allows you to highlight the benefits because you're developing your sector skills. Paul Worrall, an IT specialist with 16 years’ freelance experience, and the managing director of Interition, a software consultancy: ‘Interition won a contract to implement a content management system for an online mapping company. In the contract they inserted a clause that prevented us from working with almost all direct and indirect competitors for a significant period of time after our engagement had finished. We already had a client in the pipeline so we had a conflict of interest. ’We brought it to the client's attention quickly and explained that the exclusivity would mean that they would have to compensate us for any loss of opportunity - through a combination of higher rates or a longer contractual agreement. We were objective about it and worked with them to identify what they wanted to protect from their competition. We ring-fenced the work that fell under the clause and explained to all parties how to handle it. We explained the situation to the new client who, whilst they had not considered there may be a conflict of interest, was impressed that we were taking the initiative. ‘At first, the client that wanted the exclusivity clause was dogmatic but when presented with a choice between extra cost or taking the time to break down the clause more specifically, they conceded. ‘It’s important to give clients choices and act as a facilitator. Whilst you can never completely avoid a conflict of interest you should have quality management processes in place that serve to identify potential problems before they arise. Of course in our scenario, the client could have gone to another contractor who may have ignored the clause in the hope that the issue never arose. Fortunately, we were able to negotiate a solution.’ William Knight, a former contract software developer with 15 years' experience, and blogger , currently working on his 'Plan B': 'Morally, for new clients, I always felt comfortable to stop looking once the contract had been signed. That's not to say that in 15 years of contracting I wasn't caught out; it happened just once. I signed the contract and the agent put off the start date "due to logistic issues" and it kept getting put back until finally, after three weeks, the client cancelled. 'With an existing client, if I liked to work, I would accept a verbal agreement to renew, and not once in 15 years did this, perhaps niave strategy, leave me without work. Sometimes the contract wasn't renewed officially for weeks - that's just how it can be on big, disorganised projects which, of course, many of them are. 'I never fretted too much about the money, once I was in a contract. If I was happy to sign in the first place I was usually happy to renew. That's despite everybody having a story of a guy with similar skills being paid twice the rate. It's a cliche, but for contractors it helps if they remember - 'a bird in the hand is worth two in the bush.'' Jun 10, 2009 Email this article Printer friendly page Previous Page
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