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

2. 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

3. 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”

4. 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

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

6. 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

7. 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?

8. THOUGHTS ON IPR

9. 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

10. 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

11. 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

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

13. 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.

14. 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

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

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

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