ࡱ> wyv%` =Xbjbjٕ .=P4!u!w!w!w!w!w!w!$"h%b!uuu!!!!!uu!!uu!!!! 0v5!u!!0!!v%~v%!v%!T! "S!! !uuuuD  W(h)ither the Profession II: The economic, legal and organisational structure of successful commercial archaeology. Michael Heaton Introduction Anyone with academic or popular aspirations should leave the room now, because by successful I mean economically profitable. SLIDE: Pound sign Because, without profits, we cannot afford the intellectual pursuits we crave, the training we need or the inter-professional discourse that professional status demands. I appreciate that many of us got into archaeology for other reasons, me included, but that was 30 years ago and the world around us has changed a great deal. The C word CASH is no longer a dirty word. For the last 20 years, we have been whining about pay and conditions, lack of training and lack of professional recognition. We have set up umpteen committees, run cap in hand to English Heritage time and time again, published recommended pay scales and even promulgated a Parliamentary Special Interest Group, for heavens sake, to try to cut the Gordian knot of pay, training and standards, without success. Ladies and Gentlemen, we have been re-arranging the deck chairs on a rudderless ship. It all comes down to money. Make more money and everything else will follow. I believe this now, because I have spent the last three years with one foot on the other side of the fence, studying, inter alia, Construction Management, Property Development Economics, Contract Law and Professional Law with graduate architects, surveyors and planners at the University of the West of England, followed by a fast track one year APC programme for the RICS. It has been a fascinating journey that I recommend to all of you. Those subjects are the basic building blocks of every construction professionals education. They equip them with a fundamental understanding of the economic and legal context in which we all work, and of the organisational structures that have been developed to optimise the profits of that work. I was wholly ignorant of them, and the non-juring responses to my last article in The Archaeologist suggest that I was not alone. The other professions are having a better time than us because they make more money than us, lots of it. They make money because they understand the economic, legal and organisational contexts in which they work, and because they consider those understandings to be as important as the academic and technical skills specific to their discipline. They are taught them at university and they keep up to date with them through mandatory CPD. SLIDE: CPD BOOKLET That understanding defines a Professional and it is easily applied to commercial archaeology. We have yet to try. So, what are the principal Economic, Legal and Organisational characteristics of the world we operate in?. I will quickly run through these, before suggesting some very simple answers to our apparent conundrum. SLIDE: Its the economy dummy ECONOMIC We work in a Market Economy governed by the three axioms of Monetarist theory: Unrestricted entry to the marketplace, absence of price and wage controls and the Law of Supply and Demand. It is more successful than the quasi- Command economy many of us grew up in; it employs more archaeologists, on higher incomes than the Command economy ever did; and if the last 11 years of Labour government are anything to go by - it isnt likely to change within our working lives. Monetarist theory holds that goods or services have no inherent value: They are worth only what the purchaser is willing to pay for them. The Law of Supply and Demand predicts, accurately, that prices go up in times of shortage and down in times of glut (In this context, the terms shortage and glut refer to the availability of contracting archaeologists: we are possibly about to enter a period of glut after c. 10 years of shortage). It is social anthropology with numbers, recording and predicting what people do with things they value. What do we value ?. Money is simply a store of value and a medium of exchange, it has not inherent value itself. It is up to us, as companies, partnerships or individuals, to identify what we are individually worth to the market, through trial and error on a job-by-job basis, raising our charges until demand slackens at what is known as the clearing price. It does not follow that because one person or company can command a particularly hourly rate, salary or price for a particular type of work, that everyone at a similar hierarchical position can do the same for all types of work. We are not all of equal value to the market. There are people in this room who are worth more to a Client than I am, because they are more knowledgeable and efficient than I, and it is right that they should be able to command higher fees than I. Clients might not value that knowledge for its own sake, they are concerned only with the bottom line, but I do and we should and anyone who does not should not be in this room now. Industry-standardised pay scales and the fee rates derived from them are unethical, because they oblige clients to pay a standard rate irrespective of the quality of work they receive. They also devalue excellence. They do not create a level playing field. SLIDE: RICS FEE SCALE STATEMENT They are also illegal, so none of the established professions have recommended fee scales since the mid 1980s. Local government employers, alone, are exempt because they are not in competition with each other and because their pay agreement the NJC Agreement - is designed to keep pay down to within Treasury inflation limits. For us to adhere to it, as commercial organisations, is stupid. The IFA is the only professional institution that recommends pay scales and charge rates, and, ironically, we are the lowest paid. Incidentally, the IFAs recommended minimum salaries suggest that it values some MIFAs at less than half the market value of a Chartered Building Surveyor. After 12 years of self-employment, I think I might have reached my clearing price my value to the market. If the IFA recommended salaries are anything to go by, property developers and construction professionals value skilled, client-oriented archaeologists much higher than the IFA does. PPG16 was and is an instrument of Monetarist economic policy, designed to protect archaeological sites by forcing developers to pay the full economic cost of archaeological excavation, a cost that can be determined only by the Law of Supply and Demand. To work, it was necessary for archaeological contractors to be feed from local government pay restraint, so it was brought in at the same time as Compulsory Competitive Tendering and the privatisation of local government Direct Labour Organisations. Margaret Thatchers advisors predicted that, as demand increased, archaeological contractors, freed from restrictive local government practices, would raise their prices until the Clearing Price was reached i.e. the archaeological cost that makes a development uneconomic - at which point developers would stop building on archaeological sites and demand would slacken. It should have reduced the amount of excavation done, but increased the total monetary value of evaluations and assessments. It has failed, I suggest, because we have failed to exploit it for our purposes. There is far too much excavation of questionable academic value being done and not enough high value evaluation. No one explained to us, then, about Monetarism and the Polluter Pays principle and no one told Margaret Thatcher that we were all Lefty vegetarians, suspicious of economic motives, who would continue to pay ourselves in accordance with local government pay agreements designed to keep pay down and that none of us knew anything about running our own businesses, so we all continued working for the old style Units despite being poorly paid, badly treated etcetera etcetera etcetera. Seventeen years after PPG16, we have no idea what the economic value of an archaeological site is, never mind realising it. We work in the Property Development and Construction industry. It is profit-driven. Capitalists invest their money in property development because it generates a higher rate of return than a bank account, generally about 15-20%, and they expect everyone else in it to make a profit as well: Not the windfalls arising from getting a job done a day early, but predictable profits built into cost structures, on which investment forecasts can be made. Our investment forecasts. Profits in general building contracting are pitiful, the industry average in the mid 90s was 1%. We are Specialist Contractors and Specialist Consultants and there are relatively few of us. As far as I can tell from company accounts deposited at Companies House and the Charities Commission, archaeological contracting is about 3 times more profitable than building contracting (with a few notable exceptions, who I wont embarrass here). But our turnovers are miniscule compared to those of builders, so the cash value of our profits available for investment etc. are equally miniscule. Is there a shortage of work at the moment?, have we reached the Market Clearing Price ?, is archaeology preventing development of supermarkets, housing estates or airports ?. No: On most commercial development projects, archaeological costs are insignificant 0.5% of total development costs if were lucky. They are challenged, sometimes, because on some projects all costs are challenged and because our costs are opaque, not because they are necessarily excessive. (See my article on the Price System). We could all raise our prices by 100% without any significant affect on demand. SLIDE: Look out Lefty, its The Law LEGAL All other professionals are taught Contract Law and Professional Law as part of their basic training their first degrees. Neither appear on any archaeological degree syllabus. As well as being fascinating subjects in their own right, they are the cornerstones of commercial success: They are the grammar of a language common to all professionals and construction contractors, of which we are wholly ignorant. SLIDE: Murdoch and Hughes The Law also makes a clear and critical distinction between the roles of Professional and Contractor: The former never uses a shovel and there are relatively few of them in this room. The distinction is critical, and our misunderstanding of it is the cause of many of our structural problems. It is too complex a subject to go into here, but being paid does not, in itself, make you a Professional. Nor does having a degree Knowledgeable application of Contract Law to a development or construction project will balance the risks between client and contractor: Archaeological excavation for monetary gain is an inherently risky undertaking, far more risky than building the supermarket occasioning it, yet we know nothing about the Law that has evolved to reduce those risks for us. SLIDE: ICE CoC It is a huge subject, but two examples will suffice here. Example No. 1: There is no such thing as a Fixed Price Contract as understood by most of us in this room. So-called Fixed Price Contacts are based on such minutely detailed specifications and are so heavily qualified, that the slightest variation in commencement date, quantities, site conditions or design effectively renders them renegotiable. They are never applied to site investigations or groundworks. Archaeological excavation and evaluation are exactly comparable to civil engineering groundworks, to which Measured Contracts are applied. I have written at length about this in The Archaeologist, so I shant waste valuable time repeating it here. The unexpurgated articles are available on my website. Clients and their agents ask for Fixed Price tenders because they are ignorant of and suspicious of archaeological motives and working practices, particularly those of post excavation analysis, which they cant see. We must promote the use of other forms of contract and explain our working practices to our clients. Example No. 2: Your company is invited to tender for an excavation of a substantial site within an historic town, on the basis of an evaluation done by another company to a vague specification set by a Consultant. Your response ?: Not without a Collateral Warranty from the evaluating company, matey. If you are the other company, do you provide the Collateral Warranty ?. Not without a hefty fee in consideration of doubling your liability to two clients. Once underway, it becomes clear that the evaluation was inadequate and the report is factually incorrect in certain respects: There is another metre of stratigraphy, they got their level calculations wrong, and there are skeletons. What to do ?. Do you struggle on, working 10 hour days and then cut back on the PX to stay within budget; or, after much argument, accept the halting of the job and re-tendering of the contract.? No and No. Your company has signed a contract even if it was just an exchange of letters - on the basis of an explicit understanding about the nature of the site and is legally entitled to the profits accruing from that contract. The circumstances have not changed so much that the contract is Frustrated i.e. not actually possible -, so you are within your rights to stay in Possession of the site. An Arbitrator, Adjudicator of Judge would require The Client and their Consultant to renegotiate the contract on the basis of the actual quantities and your tendered price and you would be legally entitled to finish it. For the last reason alone, single Lump Sum contracts which is what Fixed Price Contracts usually are are to be avoided because they make re-negotiation difficult. The variation in quantity and quality of archaeological deposits, rather than being a risk to your company, is the sort of opportunity that building contractors dream of. The Client might sue the Consultant or the other company for negligence, who should have employed experienced people. Tough. The other company could avoid this liability by a simple caveat in its evaluation report. Slide: Capitalist system ORGANISATIONAL Our organisational and institutional structures exemplify, more than anything else, what is wrong with what we are doing, and are the most easily corrected. When PPG16 arrived, most of the work was being done by local government or university units of one form or another, with the exception of Wessex, Oxford and a few others who, nonetheless, adhered to local government pay scales. There was a finite number of archaeological contractors, each with a natural ceiling to the quantity of work they could undertake, determined by premises, organisational structure, ambition etc. and therefore a glass ceiling to promotion and the financial security that came with it. Each Unit was self-sufficient in diggers, specialists and storage space. This is still the model we aspire to. It is implicit in all IFA documentation including the preambles to this session, implicit in the Profiling The Profession questionnaires and in the pejorative term One-man band. In this organisational structure it doesnt matter how experienced and qualified you are, until Sue Davies, David Jennings or Taryn Nixon retire, few of you are going to be able to put your brilliant ideas into practice or earn more than 30K. In frustration, you subscribe to The Digger, join the Union or just become a thorough malcontent. But it makes no difference. Youre still nearing 40, earning less than half that. Your Director, being the devout Guardian-reading liberal he/she is and wanting to be a good employer, tenders for every job offered just to keep you and your mates employed, especially large excavations that will keep you, your mates and the Finds Dept employed for a long time, and probably bussing you half way across the country to do it. SLIDE: Pyramid Its an outdated, monolithic institutional business structure that suppresses innovation, talent and earnings, discarded by the construction industry 20 years ago. It makes it impossible to invest in yourself by attending training courses or evening classes. Under this model, Specialists, suffer more indignity than even Diggers: Invariably highly qualified and knowledgeable , they are at the bottom of the food chain, making do with left-overs from over-run site budgets and having to justify every penny spent - but to other archaeologists, not to the clients. The only bad payers in commercial archaeology are archaeologists ! The alternative ? SLIDE: RIBA Practice guide Free the Diggers. Balfour Beatty or McAlpines dont retain a standing army of site personnel (labourers and tradesmen), their staff are all suited, highly qualified and well-paid professionals. They price jobs on the basis of local sub-contractors doing the work at their own rates, and send surveyors, architects and managers to manage the jobs. The bulk of the manual and technical work is done by people local to the site, who go home at night: Only the suits stay in hotels. All Site Assistants and Supervisors ought to be working collectively or individually as Contractors or Sub-Contractors, setting their own prices and deciding where and when they work. That is the essential definition of self-employment and I am aware of anecdotal evidence that some archaeological companies are abusing the term to avoid their legal and financial obligations as employers. I have helped two former colleagues set up on their own, both are thriving. The larger companies the old Units should evolve into Professional Consultancies that specify and manage archaeological contracts on behalf of clients, with the fieldwork and basic processing done by local contractors. Specialists seem to get a worse deal than site staff, last in the queue for PX money once site works have over-run. Why accept scraps from other archaeologists when you could be dealing with the source of the money itself: The Client. Every Specialist with a bibliography ought to be capable of running an archaeological project on behalf of a Client, sub-contracting the services of excavators and other Specialists. Perhaps that ought to be functional definition of an MIFA: Someone who can organise an archaeological project for a client. Dont allow your employer or, God forbid, the Local Government Employers Association to decide how much youre worth: Let the Market decide. If youre any good, youll be pleasantly surprised. And what of the professional institutions ?. The IFA - and this is not a criticism of its staff or council, it is a criticism of all of us - cant decide whether its a professional institution, a trade association, a union or an amenity society and, as a result, fulfils none of those roles satisfactorily. Merging with the IHBC would, I believe, have been a mistake. We should go the other way: There should be a trade association of archaeological contractors (or we should just join the AGS), a trade association of specialists, the ALGAO and a professional institution to which members of all three could elect to join as individuals. This is how the construction industry and its professions govern themselves, we simply have to emulate it. SLIDE: Alternatives ? The answer ? In summary, I believe the answer to our recurrent gripes is simple and threefold: SLIDE (1) Teach Property Development Economics, Contract Law and Professional Law to archaeologists intending to enter, or already in, the profession. This is fundamental. Most technical universities run part time courses with these modules: Just do it. SLIDE (2) Establish an APC-based training regime aimed at equipping archaeologists with the professional and technical skills needed to run their own businesses. SLIDE (3) Discard all forms of wage control and encourage self-employment and sub-contracting, especially for Site Operations, Processing and Specialist services. The definition of self employment is critical here and I am aware of anecdotal evidence that this contract form is being abused by at least three archaeological employers. Together, these would double the average income of commercial archaeologists within 5 years. 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