A little over a week ago, a contract opportunity came out from a government agency. For a whole host of reasons, we didn't think we had much of a shot (short response time, some ultra-specific requirements, experienced competition, etc). Nonetheless, we did our due diligence, and we contacted probably 20 to 30 consultants. Of that, only three thought they would meet all the criteria for which our client was asking. And even then, one of them removed himself from contention just a few hours later.
So, I was down to two. Both were experienced, solid candidates, with whom we had previously worked. Eventually, we settled on one candidate to represent. We'd been given a handful of days to generate a proposal and time was slowly fading away on us.
Even our candidate had the same reservations about the viability of this opportunity. Nonetheless, like us, he decided to take a shot.
I knew - knew - that we weren't going to get this. I also knew that our candidate could do the job and could meet all the requirements. There was no internal conflict; these thoughts were completely reconcilable. Unfortunately, the reconciliation was obvious. The optimism could not win out.
The IT consulting market in Ottawa has been pretty dead for the past year. We have seen fewer and fewer opportunities, and more and more consultants desperate for work. Prices for consultants dropped rapidly, with senior consultants taking rates that intermediate consultants may have balked at in 2008. Firms are slashing mark ups; no more is the much sought after 18% to 20% margin realistic. Competition brought on by a buyer's market has brought everyone's expectations to Death Valley-like levels. Optimism is in short supply.
Had the market been better, optimism would have been an abundant commodity. The most public of public goods, it would have been for all and for as much as anyone desired.
Time ran out on me for this proposal. I worked with our candidate. We covered all the requirements and ensured that he was satisfactory. We began building and formatting the proposal. But time was scarce. We'd been given so little time to respond that any snags were giant setbacks. We approached the deadline and there was much more that I wanted to do to make the proposal perfect. Don't get me wrong, it was fine; it was satisfactory. I wanted it to be perfect. (Did I mention the state of the market?)
Had the market been better, we'd have had no worry about this opportunity. Upon seeing all the challenges and disincentives to respond, we would have disregarded this request, instead working on requests from other clients - requests that seemed viable.
Had the market been better, we never would have won this contract. Score one for the contrarian case for optimism.
Showing posts with label Consulting. Show all posts
Showing posts with label Consulting. Show all posts
Thursday, January 21, 2010
Tuesday, January 19, 2010
The Unfolding Mystery of the ESA: Bill 139
Temporary Help.
Say it. Say it so many times that it has lost all meaning. Say it until the permanence of opacity. Say it one more time. Now you know the effect of Bill 139 on the consulting industry.
I don't mean that to be flippant or derogatory; I just mean that this bill has been passed with very poor definitions. In certain situations, the meaning is clear. If you run a temp agency, the bill applies; if you run a consulting agency, well, then maybe it applies, depending on a four test common law application, depending on the integration, dependency, control, appearance, whether we apply Sagaz or Re Becker Milk Co... (mumbles and trails off incoherently).
Okay, to begin with, a quick background. Bill 139 attempts to give temporary workers the same rights and protections afforded by law to permanent employees. This means such things as receiving holiday pay, vacation pay and notice of termination (or payment in lieu). It also means that after six months, the temporary help agency cannot prevent the client from hiring the temporary worker as a permanent employee. So far, so good. Well, one could rightfully debate the merit of the bill, but I think we all get the basic idea: temps need protection from exploitation (that's the non-cynical explanation and, for the purposes of this post, I'm going to run with it).
The problem comes with firms, like my current employer, who are not really temporary help agencies. We are not body shops that farm out desperate low-skilled workers. We do not trade in what is the generally perceived definition of a temp. We trade in the services of highly skilled (and deservedly highly paid) professionals.
Unfortunately, it is unclear if Bill 139 makes such a distinction (though, for some reason, it makes an explicit exception for home-care professionals... I have no idea why). It could be that this new law will make all or most consultants employees. Unfortunately, there is no way to know this. Neither the ESA nor the Ministry of Labour is willing to make a definitive statement as to what constitutes an employee. To a certain extent, this is understandable. Employment and work dynamics are changing so much these days that rules that had been in place for decades may no longer be applicable. Attempting to define 'employees' may be near impossible.
In Ontario's common law, there are numerous tests and criteria that are laid out to make such a determination. Unfortunately, none of the tests are considered definitive and the list of criteria is not considered to be exhaustive. The common law does not give appropriate guidance to firms and consultants. Worse yet, Bill 139 seems to be, at least in part, an attempt to codify the common law. Institutionalized Uncertainty: it's all the rage at Queen's Park this season.
One blog post is not sufficient space to fully explore all the issues surrounding Bill 139, but I will leave you with one final thought: The Ministry of Labour has responded to an inquiry I made about the nature of employment of an independent consultant; an agent of the Ministry wrote, "[s]uch a ruling can only be made by an Employment Standards Officer following an investigation into a complaint, by an arbitrator when a grievance has been filed by an employee..."
So, the only way to determine if a consultant is an employee is to lose a complaint lodged against you through the Ministry of Labour. For those companies who wish to abide by the law, this is of little comfort.
Stay tuned...
Say it. Say it so many times that it has lost all meaning. Say it until the permanence of opacity. Say it one more time. Now you know the effect of Bill 139 on the consulting industry.
I don't mean that to be flippant or derogatory; I just mean that this bill has been passed with very poor definitions. In certain situations, the meaning is clear. If you run a temp agency, the bill applies; if you run a consulting agency, well, then maybe it applies, depending on a four test common law application, depending on the integration, dependency, control, appearance, whether we apply Sagaz or Re Becker Milk Co... (mumbles and trails off incoherently).
Okay, to begin with, a quick background. Bill 139 attempts to give temporary workers the same rights and protections afforded by law to permanent employees. This means such things as receiving holiday pay, vacation pay and notice of termination (or payment in lieu). It also means that after six months, the temporary help agency cannot prevent the client from hiring the temporary worker as a permanent employee. So far, so good. Well, one could rightfully debate the merit of the bill, but I think we all get the basic idea: temps need protection from exploitation (that's the non-cynical explanation and, for the purposes of this post, I'm going to run with it).
The problem comes with firms, like my current employer, who are not really temporary help agencies. We are not body shops that farm out desperate low-skilled workers. We do not trade in what is the generally perceived definition of a temp. We trade in the services of highly skilled (and deservedly highly paid) professionals.
Unfortunately, it is unclear if Bill 139 makes such a distinction (though, for some reason, it makes an explicit exception for home-care professionals... I have no idea why). It could be that this new law will make all or most consultants employees. Unfortunately, there is no way to know this. Neither the ESA nor the Ministry of Labour is willing to make a definitive statement as to what constitutes an employee. To a certain extent, this is understandable. Employment and work dynamics are changing so much these days that rules that had been in place for decades may no longer be applicable. Attempting to define 'employees' may be near impossible.
In Ontario's common law, there are numerous tests and criteria that are laid out to make such a determination. Unfortunately, none of the tests are considered definitive and the list of criteria is not considered to be exhaustive. The common law does not give appropriate guidance to firms and consultants. Worse yet, Bill 139 seems to be, at least in part, an attempt to codify the common law. Institutionalized Uncertainty: it's all the rage at Queen's Park this season.
One blog post is not sufficient space to fully explore all the issues surrounding Bill 139, but I will leave you with one final thought: The Ministry of Labour has responded to an inquiry I made about the nature of employment of an independent consultant; an agent of the Ministry wrote, "[s]uch a ruling can only be made by an Employment Standards Officer following an investigation into a complaint, by an arbitrator when a grievance has been filed by an employee..."
So, the only way to determine if a consultant is an employee is to lose a complaint lodged against you through the Ministry of Labour. For those companies who wish to abide by the law, this is of little comfort.
Stay tuned...
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