Buyer beware… of getting what you ask for

A recent UK technology case gives a good example of “buyer beware” and “you get what you pay for” in technology procurement.

The case is London Borough of Southwark v IBM UK [2011] EWHC 599 (TCC). Computerworld has a good write-up of the facts.

In short, Southwark Council embarked on an ambitious systems integration project to build a Master Data Management (MDM) system. Such projects have been fertile ground for legal disputes. The Court noted (in typically understated fashion):

In practice, it has been found by a number of the London boroughs which have introduced or tried to introduce MDM systems that they are complex.

In March 2006, the council’s IT dept drew up a Project Brief. The next month, the council met with IBM, which proposed a solution to meet the Project Brief that would cost between £1.5 million and £2 million. However, Southwark had a budget of only £500,000. As a result, it was agreed that a more limited solution would be carried out, to meet the council’s budgetary constraints.

During 2007 the project got underway and some progress was made, but problems soon ensued (as detailed in the judgment). In October 2007, a council staffer notified the first complaint against IBM, alleging that “the MDM ‘solution’ procured from IBM is not fit for purpose”.

“Fitness for purpose” is a legally loaded term. In New Zealand, it is an implied condition of sale (via the Sale of Goods Act 1908) that goods known to be bought for a particular purpose must be fit for that purpose. This applies to business and consumer goods (and “goods” includes software). There is a similar provision in the Consumer Guarantees Act 1993, though importantly, that Act applies to services as well as goods, and (in the case of consumers) cannot be contracted out of.

It is interesting to see from the judgment that after significant problems emerged, the council simply blamed IBM for delivering software that was “not fit for purpose”, apparently without looking at whether it (the council) selected the right solution for its purpose. (The fact is, it compromised on its requirements from the outset in order to meet its budget.)

I have been involved in a number of major IT implementation disputes where this has happened, with remarkable similarity. Part of it, no doubt, is corporate CYA culture, but the bigger part of it was (once you reduce it all down) the simplistic mindset that “we paid you truck loads of money, and you’re the IT experts, so if anything’s gone wrong it must be your fault”. Given what actually happened in these projects, this is quite unbelievable.

IBM reasonably responded to the council as follows:

At the time of purchase [the council] chose not to take a total solution/system option due to the cost implications and decided to contract the individual software and services items separately. In addition, [the council] chose to project manage the MDM implementation with assistance from the IBM software services team … and to date the IBM services contract has had only approximately 50% utilisation.

In Court, the judge echoed IBM’s comment above, saying:

[IBM’s software] does “what it says on the box”. An analogy is the potential car purchaser who might want an off-road vehicle but, having looked at the brochure for an on-road vehicle, says to the salesman “that’s what I want” and buys that vehicle. There will be no cause of action against the garage that the car is no good off the road. The salesman will reply, with justification: “you got exactly what you asked for”. That is essentially what has happened in [the council’s] case.

In my judgement, [the council] got by way of [IBM] exactly what its then team knew that they were getting and what it decided that it wanted and needed within its budgetary constraints.

As a result, the council had its case against IBM thrown out, and was ordered to pay costs to IBM. Moreover, the judge awarded indemnity (full reimbursement) costs in favour of IBM because of the council’s failure to accept a reasonable “walk away” settlement offer before the trial, in circumstances when it should have seen that its case had serious defects.

In other words, the pre-trial evidence put forward by IBM should have made the council realise that neither IBM nor its software was to blame, but that the client had itself simply chosen a cut-down solution that was “unfit” for what it later said it wanted – a situation I have witnessed on a number of occasions (and all of which we successfully settled out-of-court on favourable terms, I might add).