NEGOTIATING LONG TERM DIGITAL CONTRACTS WITH THE NHS JUNE 2017 WILL SEABROOK

MY EXPERIENCE NOT A LAWYER LEAD ON ABOUT 150 CONTRACT NEGOTIATIONS IN HEALTHCARE - BUYER AND SELLER - - UK AND USA - VALUES RANGED FROM £30,000 TO £40 MILLION NO RESULTING LAWSUITS THAT I KNOW OF LEARNED A BIT OVER THE YEARS

TWO BASIC THOUGHTS “CONTRACTS ARE NOT FOR THE REASONABLE PEOPLE NEGOTIATING THEM, THEY ARE FOR THEIR UNREASONABLE SUCCESSORS TRYING TO SORT OUT A SITUATION THAT HAS GONE WRONG” “OUR QUICK WIN IS THEIR QUICK LOSS, RECOMPENSE WILL BE SOUGHT BY THE LOSER”

AT THE END OF THE NEGOTIATION ASK YOURSELF 1. IS IT CLEAR? 2. IS IT REASONABLE? 3. IS IT BALANCED? IF YOU ANSWER NO TO ANY OF THESE THINK AGAIN

STRUCTURE OF A GOOD CONTRACT TERMS AND CONDITIONS (THE LEGALS MOSTLY) SCHEDULES PRODUCT PRICING RESPONSIBILITIES CHANGES DELIVERY DEFINITIONS (BUSINESS PEOPLE MOSTLY)

KEY POINTS TO WATCH AND UNDERSTAND IN “THE LEGALS” START POINT: AN UP TO DATE DERIVATIVE OF SYSCON FOR THE SYSTEM CONTRACT IS THE START POINT FOR MOST NHS TRUSTS AND SSCON FOR THE MAINTENANCE CONTRACT

KEY POINTS TO UNDERSTAND IN THE LEGALS IPR, PARTICULARLY IF DEVELOPMENT IS INVOLVED LIMITATION OF LIABILITY IS IT CLEAR, AFFORDABLE AND (IF POSSIBLE) INSURED? WARRANTIES WHAT IS THE REMEDY?

THOUGHTS ON IPR

SOFTWARE LICENCE TYPES IPR OWNER’S RIGHTS NONE/FEW SOME ALL FREE SOFTWARE/OPEN SOURCE LICENCES PROPRIETARY LICENCES PUBLIC DOMAIN ACADEMIC LICENCES CONTEXTUAL LICENCES RECIPROCAL LICENCES FREEWARE/ SHAREWARE OTHER

TYPICAL SUPPLY AGREEMENT SCHEDULES A. SYSTEM DESCRIPTION DELIVERABLES CONTRACTOR’S RESPONSIBILITIES AUTHORITY’S RESPONSIBILITIES TIMETABLE ACCEPTANCE CRITERIA AND PROCEDURES FINANCIAL ARRANGEMENTS PROCEDURES SPECIFIED UNDER THE CONTRACT (mostly admin.) ESCROW (sometimes) NCC OR ANOTHER

SYSTEM DESCRIPTION GET IT RIGHT VERY IMPORTANT INDEED BEWARE OF USING THE ITT tick list and the CONTRACTOR’S RESPONSE TAKE THE TIME TO AGREE WHAT IS BEING BOUGHT AND SOLD TIME UPFRONT WILL SAVE TIME AND ILL-WILL SORTING OUT MISUNDERSTANDINGS LATER GET IT RIGHT

DELIVERABLES DOCUMENT THE DETAIL SHOULD LINK TO TIMETABLE AND LIST EVERYTHING THAT IS BEING DELIVERED. AUTHORITY’S AND CONTRACTOR’S. DOCUMENT THE DETAIL

CONTRACTOR’S AND AUTHORITY’S RESPONSIBILITIES LIST THEM ALL, THEN CHECK FOR GAPS AND DUPLICATES AND COMPARE AGAINST THE DELIVERABLES. WILL THE COMBINED RESPONSIBILITIES BE SUFFICIENT TO ACHIEVE THE DELIVERABLES.

DON’T LEAVE IT UNTIL LATER TIMETABLE DON’T JUST “PLUG IN” A TYPICAL MS PROJECT CHART FROM THE CONTRACTOR – ACTUALLY THINK IT THROUGH AND MAKE IT REALISTIC. LINK DEFINED MILESTONES TO PAYMENTS. DON’T LEAVE IT UNTIL LATER

ACCEPTANCE CRITERIA AND PROCEDURES MOSTLY FOR THE AUTHORITY TO DO. SOMETIMES NEED HELP. WILL LINK TO PAYMENT SO IMPORTANT

FINANCIAL ARRANGEMENTS PRICES PAYMENT TERMS BENEFIT REALISATION (if applicable) TRIGGERS FOR PAYMENT CONTRACTOR WILL WANT PAYMENT EARLY – LINK PAYMENT TO IDENTIFIED DELIVERABLES

IF NO THEN THINK AGAIN FINAL REVIEW IS IT CLEAR? IS IT REASONABLE? IS IT BALANCED? IF NO THEN THINK AGAIN