Is this Restriction of Trade?

[BAJR]

Seems like de ja vu - but I have now heard that one of the first acts of Paul Belford - the new Director of the Clywd Powys Archaeology Trust is to drop ALL non IfA or Registered Organisation from a list of contractors available for work in the area. whether or not they have carried out work successfully there in the past. it seems the same is happening in Dyfed.

While on one hand, it is laudable that they are taking a stand against rogue contractors and those archaeologists who refuse to allow themselves to be subject to the harsh disciplinary procedures that can be brought into effect should they er.. do something bad in archaeology... and that the in depth and regular examination of a companies competence in the RO scheme by the IfA scrutineers -

I do have a couple of questions.

one is in regard to the legality of creating a list of approved contractors in the first place and the restriction of trade.

the other is the ability of a Director of a Trust to make a major decision like this - with legal advice I hope.



Back in 2011 for example - a Building firm was found to have been unlawfully removed from a council approved contractors list. and the list goes on. The question must be asked. under what provision did this decision come into force? what was the reason for it? and what legal advice was sought before dropping non ROs from the list. thus effectively forcing people to join the IfA - not because they want to, but because they have to... not the best way to drum up members imho. This is in effect restriction of trade.

I do agree that barriers to work must be in place. --- is this the best way forward? not sure.

I look forward to any reply.

[kevin wooldridge]

I don't think that setting pre-qualification criteria for tenderers is a restriction on trade. It happens in many of the design and construction industries with which UK archaeology has become associated.....I think what is important (in legal terms) is that the 'tenderer list' isn't closed to new entrants who satisfy the pre-qualification requirements, and that those requirements are fair and appropriate....it seems to me that evidence of adoption of 'professional ethics' (RAO/IfA membership) falls in the category of fair and appropriate. I guess that legal recourse is available to anyone who argues otherwise....

[BAJR]

Here I can only ask if it is then legal - as seems to be the suggestion - that Every County Archaeology Office could overnight say. no briefs will be accepted unless they are from an RO or MIfA ?

THis is where I find myself torn - and have to say... one one hand. it is good to see regulation coming in to ensure that standards in archaeology are maintained. as the IfA are the only organisation that can do this. and becoming a member shows a confidence in ability and professionalism. On the other. as many already know. ( yes countie mounties - you know it is true ) often the main culprits of corner cut archaeology are the ROs of undercutting and price wars... pushing archaeology down to the lowest. to fight off the imaginary foe of the small contractor. ... so will this mean that standards will rise in Wales?

I want to see membership and professionalism... what I also want to see is an organisation that people want to join. one they want to join because they believe in it, rather than have to or they won't be allowed to work. even if they have already done good work in the past.

An RO inspection shows that a company can tidy up before it happens. --- sorry... but you know it is true. And hey... I am a MIfA --- not because I went through the procedure again, but I was a member of teh AAI&S - so that means I can tender for work on projects in Wales even though I am an illustrator MIfA ... whooo hooo

Fair requirements? One would hope they are.

[Doug]

Requiring the completion of certain qualifications to undertake work is not illegal. I can think of many examples: license to serve alcohol, you need a license to serve food, etc. etc. etc.

As kevin said, "I think what is important (in legal terms) is that the 'tenderer list' isn't closed to new entrants who satisfy the pre-qualification requirements, and that those requirements are fair and appropriate"

Of course one will only know for sure when the courts decide, which means someone will have to bring a lawsuit first.

[Crocodile]

Unlawful in my opinion. The credentials provided by the IFA are not formally recognised. The same standards could be achieved without membership, or by being a member of another association with the same standards. As with most things in common law, it would be how it is interpreted by a court of law but if I were to form another body with the same standards, also not formerly recognised then barring my members on a point of membership choice is an anti-competative restriction. I don't think IFA standards count for a lot in practice.

[barkingdigger]

If it is true, then there is a serious issue of legality. Sure, a pub landlord needs to be licensed, but only because Parliament said so and got the Queen's squiggle on paper to make it law. There is no comparison. When/IF the IFA get chartered, then maybe they might be in a position to lobby the Govt to endorse their monopoly, but at the moment I suspect this really does amount to unfair restriction of trade. Now there's nothing wrong with asking for levels of competence (a word used with great caution here!) comparable to a RO or a MIFA, but that does leave the contractor with the ability to demonstrate the needed standard without having to join IFA. After all, IFA's shameful track record of punishing miscreants among their own flock hardly demonstrates that having "IFA" on your letterhead guarantees quality.

Trouble is, who has deep enough pockets for a court case?

[kevin wooldridge]

Unlawful in my opinion. The credentials provided by the IFA are not formally recognised....

That clearly cannot be the case otherwise it is unlikely that HMRC allow IfA membership subscriptions to be offset aganst tax. The All Party Parliamentary Archaeology group (APPAG) also recognises in its 2004 report on UK archaeology that the IfA (alomg with IHBC) as a professional group representing archaeologists....Many local authority planning departments also formally recognise the IfA as the setter and arbiter of archaeological standards.....Both the National Trust and English Heritage formally recognise the IfA as a professional body representing archaeologists. That seems to me , all in all, to be pretty formal.......

[Dinosaur]

Representing some archaeologists, as David pointed out

[BAJR]

completion of certain qualifications

says Doug. --- and this qualification from the IfA ... how is this judged? the competance of a MIfA for example. as I say. I am a MIfA and I was given it because I was in teh Illustrators Association... not because I had proved myself competent to excavate? and the RO status. tell me just how often a company is checked. and ho many have been cautioned for bad practice... ?

To be honest - as it stands just now. the client is the one who actually wields a modicum of power over contractors. you cost them time and money and they will not hire you again. and the curatorial service is the one that decides whether the product is up to standard. their standard... ( unless someone can point me to the standard for a good report )

formally recognise the IfA as the setter and arbiter of archaeological standards..

no trouble with that whatsoever. and the standard for a good report is...............................

Moving back from IfA bashing. as I believe they/we are the setter of standards. the question is down to one membership organisation being the ONLY club you can join to work in archaeology.

If I resign my MIfA and tender for a job in Wales. currently the answer is no you cannot work here. Now what has changed? are they saying I am not competent? are they saying that if I pay a membership fee. I could get work?

I will say it again. and say it loud. I would love people to want to join the IfA I would love the standards to be set and maintained by the IfA I want to see maverick nutters who call themselves archaeologists but are barely able to write a coherent sentence let alone a report be weeded out and barred BUT... and it is a big BUT. Don't force me to join to be allowed to work. IfA should be a badge of pride. not a button to be pinned on to get past the purity police.

I would recommend people join and be part of it. but those that don't should be thinking I should join because it is a benchmark of quality that clients will respect. rather than... feck... if I don't join I will not be able to work.

Representing some archaeologists, as David pointed out

what he said

[Wax]

Often wonder what is meant by "formally recognisied" After all the Monster Raving Loony Party are formally recognisied. I have notice in recent years job adverts asking for an equvilant level of experience that would make you eligible for IFA membership rather than asking for membership which is fair enough. The IFA is not yet a charted organisation nor does it provide a training programme that brings you up to the level required for membership. Thats up to you or your employer.
so to work in a particular area I will have to pay to join a club that does not even get me a discount on insurance (do correct me if I am wrong on that).