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  • OGC model ICT services agreement - a sea change in NHS IT procurement

    "When the only tool you have is a hammer, every problem begins to resemble a nail" (Abraham Maslow)

    Abraham could have been describing the use of the OGC model ICT services agreement by NHS trusts.

    Last summer, I noticed something strange happening. Without fanfare or publicity, every single NHS trust stopped using the SYSCON model contract and started using the OGC model ICT services agreement, even where they were just buying a software licence, maintenance & support and an implementation project. But of course they didn't just use the vanilla model contract like Central Government has done for the last decade, they bowdlerised it and created their own unique flavour, so that every bidder would have to do a delta view comparison with the original, and figure out what had been changed and why. And they employed consultants and lawyers to make the changes. As the contract and vanilla schedules are about 250 pages, few NHS trusts bother reading it. And woe betide suppliers who attempt to mark the contract up too rigorously - they run the risk of being excluded from the competition or losing marks during tender evaluation.

    This change has driven up bid costs, and has even led to one or two bidders withdrawing from competition. As noted previously, the OGC model contract does not provide a good fit when the NHS Trust just wants to buy a licence and host the software in its own data centre. After all, the OGC model contract was designed primarily for use by Central Government departments signing contracts for IT and Business Process outsourcing, with contract values in the range of £100 million - 1 billion. And even then, some commentators thought it was over-engineered. However, every cloud has a silver lining and NHS trusts are being forced to think about buying hosting and data centre services, for the first time ever, in the majority of cases.

    And a final word to NHS trusts who might be reading this - please stick to the vanilla OGC contract. If it was good enough for the Home Office or DWP in its vanilla form, then it's probably good enough for you. Resist the temptation to tinker (accepting of course, that schedules need to be tailored to reflect what you're buying).



  • Fixed price or T&M - the age old question

    It seems like T&M is coming into fashion after years in the wilderness. Ever since I first started working on projects, it seems that customers have preferred the certainty of a fixed price rather than the perceived uncertainty of a rate card. There is an understandable fear that T&M is like signing a blank cheque. But of course it isn't. Recent years have seen customers having their cake and eating it by using capped fees - basically an agreed budget based on a rate card and work breakdown estimate - the supplier can't exceed the budget without prior approval. When approval is sought, they turn round and refuse approval unless there is a change of scope. And of course they don't want lots of assumptions and caveats. And they don't want the budget to include contingency (typically 25% or more on a fixed price project). T&M also gives them much greater transparency and control over the tasks that need to be performed : "we don't want you to do X - we'll do it". Ironically, it's suppliers that favour fixed price these days, on the basis that they avoid micro-management and can get on and do the job. How times change !



  • The Emperor's New Clothes (first published in 2007 as a thinly veiled critique of the NHS National Programme for IT)

    Once upon a time, there lived an Emperor who was exceedingly fond of shiny new technology. His palace was staffed by hundreds of consultants charging an arm and a leg. But the citizens were unhappy because schools and hospitals were decaying, and rats were eating their rubbish. So the consultants told the Emperor that what the nation needed was a strategy for delivering IT-enabled business change, with public services designed around the needs of the citizens. Being a kind Emperor, he told the consultants to make it so.

    In the great city where the Emperor lived, life was always gay. Every day many strangers came to town, and among them were two swindlers. They let it be known that they were systems integrators and change management consultants, and they said they could weave the most magnificent system imaginable. But they warned the Emperor and his consultants that the benefits of this new system were invisible to anyone who was unfit for his office, or who was unusually stupid. When asked how much the new system might cost, the swindlers gave him a pitying look, and shrugged their shoulders.

    Read more ...


  • When I use a word, it means just what I choose it to mean, neither more nor less - Humpty Dumpty

    Unfortunately many lawyers fall into the same trap as Humpty Dumpty when it comes to interpreting contracts. No one says it should be easy. Faced with contracts which can be many inches (or even 1 metre thick, in one project I worked on !), we should not be surprised if the meaning of words isn't always clear in contracts.

    Despite what most people think, the courts aren't interested in what either or both parties thought the contract means. So evidence of pre-contractual negotiations is inadmissible for the purpose of interpreting the meaning of the contract. The courts are only interested in establishing the meaning of contract documents as they would be understood by a reasonable person having all the background knowledge which would reasonably have been available to them in the situation in which they were at the time of contract.

    And remember, contract documents are interpreted in the round - the intention of the parties is gleaned from reading the contract documents as a whole, not just the passages that support one's position.

    For more information, read my article first published in the magazine of the Society for Computers & Law in July 2011.



  • Happy Birthday to me !

    My business v-lex is four years old tomorrow. Has it been worth it ? Yes and no, to give a typical lawyer's answer. Financially it doesn't compare to being a profit sharing partner in a major law firm; however, there are significant compensations which aren't financial - considerable freedom and flexibility, no more management shit or office politics, and plenty of doing. And if I'm having a quiet day, I don't feel guilty about getting on my bike and riding in the Yorkshire Dales.

    Starting businesses is a normal state of affairs for me, and I like it. I joined Theodore Goddard back in the late 80's as their first IT lawyer hire, and helped the team to grow; then I moved to Sheffield and joined Oxley & Coward as a partner lateral hire with a brief to grow an IT practice. Six years later, the team decamped to Worksop to form v-lex limited, which eventually joined Beachcroft in 2006. It would seem that working in large, established businesses is not for me. I like the uncertainty and risk that goes with running a small business. So it's time for a hearty slap on the back, and best birthday wishes to me !



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