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A Practitioner’s Guide to the Project Lifecycle

Steven Baker, Lawrence Akka and Rachel Glass

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PRE-CONTRACT MATTERS

A Practitioner’s Guide to the Project Lifecycle

Steven Baker, Lawrence Akka and Rachel Glass

Chapter 1 reviews critical issues prior to the execution of a technology contract. It considers relevant matters in selecting a contracting partner and key pre-contractual documents such as statements of requirements, invitations to tender, letters of intent including agreements to negotiate, and time and cost estimates.

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LIABILITY FOR PRE-CONTRACTUAL STATEMENTS

A Practitioner’s Guide to the Project Lifecycle

Steven Baker, Lawrence Akka and Rachel Glass

During the course of negotiations leading up to the conclusion of a contract, and commonly in any invitation to tender and related documentation, the prospective parties exchange information as to their needs and capabilities in relation to the project. It is frequently intended that the other party will rely upon statements made during the process. On occasion, such statements turn out to be false. This chapter analyses the potential liability of a party for making false statements at the pre-contractual stage and the potential remedies available to the other party.

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CONTRACT NEGOTIATION AND PROJECT METHODOLOGY

A Practitioner’s Guide to the Project Lifecycle

Steven Baker, Lawrence Akka and Rachel Glass

A frequently overlooked risk in technology projects is to ensure appropriate and complete contractual drafting and to avoid internally inconsistent or incomplete contractual documents. This chapter considers how to mitigate such risk, taking into account different development models and common mistakes of contracting parties. It also analyses the requirements for complete and effective agreements, whether or not executed by the parties and when and how the courts might uphold incomplete agreements.

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THE CONTRACTUAL FRAMEWORK

A Practitioner’s Guide to the Project Lifecycle

Steven Baker, Lawrence Akka and Rachel Glass

This chapter considers the typical contractual framework for a technology project, including the main contractual documents within that framework. It further analyses the circumstances in which a court may imply contractual terms.

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HOUSEKEEPING

A Practitioner’s Guide to the Project Lifecycle

Steven Baker, Lawrence Akka and Rachel Glass

It is probably trite to state that good project housekeeping will help in limiting the scope for operational disputes, delays and ultimately a breakdown in the parties’ relationship. Nevertheless, it remains surprising how often project discipline breaks down, resulting in increasing and corrosive polarisation of positions. Casual and commonly undocumented concessions and agreements are concluded in order to paper over the cracks of a much larger underlying problem. When lawyers then become involved the array of misunderstandings, partial or temporary agreements and concessions are harvested and characterised in technical legal jargon and then deployed in the hope (and sometimes justified expectation) that a party will have the advantage in any mid-project re-negotiation or any dispute process. This chapter considers, albeit briefly, some of the commonly deployed concepts and arguments which arise.

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PROJECT MANAGEMENT

A Practitioner’s Guide to the Project Lifecycle

Steven Baker, Lawrence Akka and Rachel Glass

Technology contracts often require significant co-operation between the parties, a concept which has been recognised judicially. This chapter considers what that means as well as considering various key project management issues such as resourcing, changes in scope and change control processes, record maintenance and retention and the use of consultants.

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DELIVERY AND ACCEPTANCE

A Practitioner’s Guide to the Project Lifecycle

Steven Baker, Lawrence Akka and Rachel Glass

This chapter considers obligations to performance, including delivery and acceptance of the contractual system, including qualifications as to the level of performance required and what is meant by the terms ‘reasonable endeavours’, ‘all reasonable endeavours’ or ‘best endeavours’. It also considers issues arising from prime and sub-contractors, licensing and contractual indemnities in the context of contractual performance.

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TESTING

A Practitioner’s Guide to the Project Lifecycle

Steven Baker, Lawrence Akka and Rachel Glass

Chapter 8 outlines the ongoing testing process which occurs during the delivery of a technology project. It considers in particular whether software delivered by the supplier is subject to an implied term that it must be completely free of defects.

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OTHER ASPECTS OF PERFORMANCE

A Practitioner’s Guide to the Project Lifecycle

Steven Baker, Lawrence Akka and Rachel Glass

Chapter 9 considers the common practice of agreeing contractual service credit and benchmarking regimes to incentivise supplier performance. It explains common issues concerning structuring of such arrangements and how performance might be measured. This chapter also considers the effect of recent judgments on such arrangements, including whether service credits may be considered to be a form of liquidated damages, and whether they are vulnerable to being found to be an unenforceable penalty.