IFA RO only as approved contractors

[kevin wooldridge]

'Restrictive practice' is a term loaded with legal connotations. The IfA have received a legal opinion that limiting archaeological work to RAOs would not be 'restrictive practice'....as was said before the only way to decide that one way or another would be by an individual or organisation taking the case to court. I accept that it may be bad news for some people, but at the moment (at least according to IfA) it is not illegal and therefore is not a restrictive practice. It might help this discussion if we avoided using pejorative terminology (it only inflames the masses) until it is proven one way or another....maybe 'controlled market' would be a more appropriate and less controversial term.

[kevin wooldridge]

Does this restriction still apply under EU law?

In one sense Yes in that under EU law (and practice) public bodies are exempt from the regulations that govern so called restrictive practices and monopolistic arrangements.

The fact that many UK public bodies have procedures that do regulate restrictive practice and are closer to the regulations that govern individuals, groups of individuals and companies, is of their own choosing (and partly by UK central government insistence) but in practice is not determined by EU law..

If anyone is wondering why I know so much about EU rules on monopoly it is because for years and years I have been trying to discover a way to challenge the right of the Swedish and Norwegian governments to hold a state monopoly 1) on the sale of alcohol and 2) restricting archaeological practice to a limited number of approved contractors. The reason they can still do so, is because of the same EU law that exempts public bodies from the EU rules on monopoly, cartel and restrictive practice....

A canny lawyer may have realised that the same exemption applies to public bodies in the UK and may have advised the IfA that local authorities can do pretty much what they want in this field including excluding non RAOs from work determined and regulated by a local authority curator.

[Martin Locock]

To answer Kel's query, there is no specific requirement under EU procurement practice, but there is a requirement that any selection procedure should use transparent, explicit, objective and relevant criteria. (this applies to LAs commissioning work, not advising)

LAs have a free hand to impose these requirements but of course they suffer if they exclude companies who could deliver the work since they are limiting the field of potential suppliers. LAs are traditionally risk-averse and it is easy to create criteria for things like ISO 9000, Investors in People, and ifA RO since these can be black and white; otherwise an LA is left saying that the supplier must have the relevant skills without having a good way of assessing and scoring these skills.

The procurement world has recognised that over-specifying like this does lead to public projects costing more and giving work to a limited pool of suppliers, and is therefore a block to new entrants. LAs are therefore advised these days to avoid unnecessarily strict criteria and rely more on the quality and cost of the proposed solution.

[Marcus Brody]

LAs are traditionally risk-averse and it is easy to create criteria for things like ISO 9000, Investors in People, and ifA RO since these can be black and white; otherwise an LA is left saying that the supplier must have the relevant skills without having a good way of assessing and scoring these skills.

I mentioned the fact that Local Authorities are traditionally risk-averse some pages ago, in the context that I believed that they probably wouldn't be keen to test the IfA's legal opinion in the face of a challenge through the courts. As I said at the time, while the issue of whether archaeology work should be restricted to ROs may be considered significant by the archaeology / heritage team (though this is far from certain), I don't think that most legal departments would consider it sufficiently important to warrant involving the Council in a court case for restraint of trade. I would certainly expect any competent authority to have taken its own soundings on the legality of such a position before imposing a restriction of that type, rather than relying solely on the opinion paid for by the IfA, as after all, they have a clear vested interest in presenting this as fact.

[BAJR]

All very interesting and useful.

Once again, it is not the ROs quality of work and the standards they maintain to meet the requirements set by the IfA - it is whether or not (as it stands today) a council would - new word for me - create a controlled market.

Will be investigating on Monday

[Wax]

If the local authority is not paying for the work do they have the right to restrict who can do the work. They may well set the conditions and the brief and monitor the quality but they don't pay for it. I would have thought the guys who are forking out the money have the right to choose who they employ as long as the finished work is up to the standard required (and yes in theory it could be a local volunteer group!!!). RO status is not a guarantee of ability and some jobs may require particular skills and specialists. I have certainly done work where the CVs and track record of the team were asked for before the contract was finalised, IFA membership being totally irrelevant to the skills sets that were needed.

[Martin Locock]

LAs cannot restrict who does the work to ROs unless they are paying for it. Otherwise they can consider who is intending to do work to their brief and accept/decline, but they would have to justify any exclusion (if they dig their heels in the applicant can appeal for non-determination and have the chance to argue that their contractor is competent, RO or not).

They can, however, if asked by an applicant who might be a suitable contractor to undertake work, point towards any list they wish, and this can be the RO list. It is still the responsibility of the applicant to select a contractor and make sure that they are competent to undertake the work.

[kevin wooldridge]

But a LA could also claim that a contractor has to show evidence that they meet a minimum qualification/standard before being allowed to undertake a piece of work that the council have responsibility to see is carried out to that standard. I don't think it matters a hoot if the council pay for it or not. LAs have lots of responsibilities they discharge without incurring the cost of the work, environmental health for example....

[Marcus Brody]

They can, however, if asked by an applicant who might be a suitable contractor to undertake work, point towards any list they wish, and this can be the RO list. It is still the responsibility of the applicant to select a contractor and make sure that they are competent to undertake the work.

Again, however, that's different from the suggestion that only ROs should be allowed to undertake commercial, developer-led work, and that's the issue that's been the cause of most debate on this thread. As there's no requirement for local authorities to maintain a list of contractors, they are of course free to point developers to the IfA list (or to the phone book) if they don't have a list of their own. And if the Council is also the developer, they can obviously set whatever conditions they like when setting the conditions for the tendering process, as they're paying the bill. What's been the cause of most of the controversy is the suggestion, based on the IfA's legal opinion, that Councils should only allow developers to employ ROs for work undertaken in discharge of planning conditions. The issue for those of us who would disagree with such a move is whether this is actually legal (despite what the IfA's opinion would have us believe), or whether it would in fact amount to restraint of trade and an attempt to artificially restrict the right of developers in a free market to appoint whatever archaeological contractor they wish (this is a separate issue from whether archaeological fieldwork should be provided by the free market - I personally don't think it's the best model, but it's nevertheless the model that's currently in place).

[Wax]

if I was a developer commissioning work I would look at a company's track record before it's RO status. RO status says nothing about the companies ability to handle specialist projects. (or have I got that wrong?) . There would be no point commissioning a company who specialise in large open area excavation on urban sites to undertake a detailed landscape survey of an upland area . I know there are companies who can do both. I might even look at an architectural company specialising in historic buildings for a level 4 building survey. RO or none RO is not particularly relevant, track record is everything.