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I have recently come to the end of a few procurements I have been assisting clients with, for full Housing Management Systems and Digital Platforms. The final stage is ‘Contract Finalisation’, where the software/system solution purchase is recorded legally.
A bit like a mortgage agreement or contract of employment. Perhaps of all these, only a mortgage is so set in stone, others have the possibility of clauses being dropped, modified, strengthened/watered down etc, based on mutual agreement.
Where a CCS/DAS Government framework is being used, like RM3821, a standard contract is supplied and generally the basis of what can be agreed. Framework contracts do try to be everything to everyone however, whether procurement of 500 Capital Work kitchens or a £1.2m 5 year software contract. As a by-product of that, liabilities are often set very high, to offer very strong protection for buyers, the Contracting Body.
Outside of Frameworks, I would never advise a client of mine to just accept or start from a suppliers template contract. It will undoubtedly be very biased in favour of the software provider, often demanding lots of front loaded up front payments and limited (if any) penalties for late delivery or ‘time of the essence’ style clauses. Most projects I see later, when clients get me in to sort out implementations that have gone wayward, have few contract protections. Always engage experienced software contract solicitors to assist, it will be worth the £8-12k required.
Recently on the subject of ‘when contracts go wrong’, you probably cannot have missed the recent shenanigans in Northern Ireland, around the Northern Irish Protocol, which was agreed as a condition of the UK Brexit. This like a software contract, is legally binding. While most of us recognise we have a liar of a UK Prime Minister, who even wrote his lies on a big red bus and got away with it, the NIP is written into law in black and white. In the same way a mortgage defines how we will make payments to our lender on a periodic basis, the NIP has defined clauses.
The story fed to the people has become that the EU are ‘applying rules and clauses too rigidly’, which is unreasonable. Our UK government never thought ‘Oven Ready’ rules would be applied to the letter and hoped they could be watered down later. Great wishful thinking!
Funnily enough in contract discussions, I often see pushback on clauses, with suppliers suggesting, ‘Well that would never happen and we would never invoke that’ etc. The suggestion is that the contract could be overridden by a shake of a hand, over a few double brandies, or a nice slap up dinner. Nothing is further from the truth and always the contract clauses included are king. Never believe otherwise. If I have ever encountered that, I have always argued that we should leave it in and I am sure the goodwill will work just as well, in the opposite direction. Stick to your guns, as I promise you, contract changes after the event might well have to wait five years and be very costly later.
When clients get me in to help turnaround projects that have gone pear shaped, maybe in their 3rd or 4th year, or 200%+ over budget, my first move is to review their contract. Hopefully it’s got clauses that safeguard my client and we have adequate teeth to bite the supplier with. Of course, it’s better to get the procurement and contract right from day one. A lot of my clients do that with me and see me as a Critical Friend right through the implementation, experience on tap economically as required
It’s a shame our UK government post December 2019 had surrounded themselves with ‘yes men’, otherwise someone could have unpopularly pointed out the follow of the approach and trouble could be expected a few years further down the line.
I will bring the chocolate gingers ☕😉
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Stiff Little fingers – SLF - Alternative Ulster.
(c) Tony Smith, Acutance Consulting www.acutanceconsulting.co.uk 07854-655009
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