Substitution??? Substitution??? - Page 3
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Thread: Substitution???

  1. #21

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    Quote Originally Posted by northernladuk View Post
    The agent/client will most likely be looking for a decent sized setup that has an existing employee they can draft in.
    I doubt it. The client isn't asking this today because they care about an actual sub happening next summer sometime. They care about this today because if they are going to say in an SDS that they'd accept a substitution they want to have evidence that it isn't a sham. That's really the only reason they are asking for this right now.

    This is a backside-covering process for the client.

  2. #22

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    Quote Originally Posted by jamesbrown View Post
    How do you know? I think you're making some heroic assumptions about what the contract may or may not say w/r to subcontracting/assignment/substitution. Bottom line, unless the contract agrees that OPCo can send anyone suitably qualified on behalf of OPCo and that the client cannot unreasonably withhold their consent, then it isn't a substitution, even if the contract allows for assignment or subcontracting. It would be better for the OP to have their own legal representative speaking to the client person to avoid any confusion, rather than assume that the client knows what they're doing. Substitution is a completely alien concept to most businesses. It's pure IR35 world.
    With a substitute I'm guessing you would need to have a contract created ie for the substitute and the contractor's company to sign? You couldn't just send someone in to do the job without one.

  3. #23

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    Quote Originally Posted by Hensy View Post
    With a substitute I'm guessing you would need to have a contract created ie for the substitute and the contractor's company to sign? You couldn't just send someone in to do the job without one.
    That’s between you and the substitute but, yes, you would want a contract. It could be an employment contract, for example. The important thing is that they’re operating for YourCo on the terms of YourCo’s contract with the client and YourCo is invoicing for that work.

  4. #24

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    This whole Substitution thing to me is bizarre. Most of us are one man bands with what we consider to be niche skills and the assumption seems to be that we each have an 'oven ready' person ready to go should we break a leg or worse. How else could you send on a sub if that happened tomorrow?

    I'm PMing a SAP ByD finance system implementation. My other half PMd an Oracle Financials implementation 5 yrs ago and is semi retired. I am confident that scenario would work as she is on 4 weeks notice and could fill in part time for 4 weeks and then substitute full time for the rest of the 12m contract.

    Would something that definitive be necessary?
    Last edited by realaledrinker; 24th January 2020 at 23:11.

  5. #25

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    Quote Originally Posted by realaledrinker View Post
    This whole Substitution thing to me is bizarre. Most of us are one man bands with what we consider to be niche skills and the assumption seems to be that we each have an 'oven ready' person ready to go should we break a leg or worse. How else could you send on a sub if that happened tomorrow?

    I'm PMing a Sap ByD finance system implementation. My other half PMd an Oracle Financials implementation 5 yrs ago and is semi retired. I am confident that scenario would work as she is on 4 weeks notice and could fill in part time for 4 weeks and then substitute full time for the rest of the 12m contract.

    Would something that definitive be necessary?
    I don't see how it would be reasonable to be expected to give details of who you could line up as a sub, as you simply don't know who would be available.

    As you say, we are solo operators and don't tend to have a rolodex of people that do the same work as we do. I am often the only person who does my sort of stuff on a project so I don't get to meet people with similar skill sets.

    I know that most of my job could not be subbed out, for a variety of reasons, but that doesn't make me an employee. I just happen to be one of about two dozen or so people who know a particular system at ClientCo, and the underlying principles it's based on. RoS is terribly difficult to put in place if there's an element of specialism to what you do, so you need to rely on other protections to remain outside.

  6. #26

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    It is worth bearing in mind that the test is a right that is not unreasonably fettered. The test isn’t an actual substitution.

  7. #27

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    Quote Originally Posted by jamesbrown View Post
    It is worth bearing in mind that the test is a right that is not unreasonably fettered. The test isn’t an actual substitution.
    That's as maybe but as a client making the determination, wouldn't I want to know specifics?

  8. #28

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    Quote Originally Posted by realaledrinker View Post
    That's as maybe but as a client making the determination, wouldn't I want to know specifics?
    I don't know, would you? Most businesses wouldn't understand substitution unless they routinely worked with contractors. On the whole, clients aren't asking for substitution clauses. Contractors worried about IR35 are asking for them. How do you think a client approaches that? I don't think they are asking themselves, "can we trust this supplier to provide a substitute?" and "we better get some proof!". I think they are asking themselves, "do we really need to include this crap?" and, eventually, "if this supplier could provide me with another person who was adequately qualified, would I really allow that?" or "do I care enough to refuse it upfront?".

    So, no, I don't think most clients do want to know specifics because most clients couldn't give a fig about substitution and aren't the ones asking for a RoS.

    But, great, if they are now asking for a RoS because it helps them offer an outside determination, by all means assist them.

    I suspect, though, that the OP's client has no idea what a substitution involves and doesn't understand that it's the "right" that matters.

  9. #29

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    As a permie hiring manager now, I really dont give a stuff who does the work provided it meets the spec and quality that I require.
    If my chosen supplier leaves part way through the project, will i allow the project to stop? No, it's all about getting the project completed.

  10. #30

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    So, what happened in the end. Did you provide your client with what they asked?

    I have been asked the same, but in addition they want potential substitutes names and qualifications.

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