The IT industry is moving ever closer to mainstream contracting and vendors will be sued for non-delivery. Construction and engineering companies have been used to litigation over the non-delivery of contractual obligations for well over 100 years. Following the BSkyB v EDS judgement, the IT industry is now firmly in the same boat!
Earlier this year, the UK High Court handed down its decision in the long running case of BSkyB v EDS (now owned by HP) with the damages awarded against EDS likely to exceed £200m (US$300 million). The judgement will be appealed but stands as a warning for all IT vendors world-wide.
The dispute concerned the failed implementation by EDS of a new customer relationship management (CRM) system for use in BSkyB’s Scottish call centres. The project did not go well. After numerous key deadlines had been missed and various attempts to rectify the situation had failed (including re-planning delivery of the project by signing a ‘Letter of Agreement’ to supersede the primary contract), BSkyB severed its relationship with EDS in 2002 and completed the project in house (at a reported cost of £265m).
Litigation ensued, in which BSkyB made claims of, among other things, deceit (fraudulent misrepresentation), negligent misstatement and breach of contract by EDS. Despite EDS arguing that the project was derailed by the inherent risks in an IT project of this nature and BSkyB’s ‘vague and shifting requirements’, EDS was held liable for fraudulent misrepresentation, negligent misstatement, and breach of contract.
This decision highlights the fine line that must be trodden by service providers in promoting their offerings whilst pitching for jobs. Above all else, service providers should ensure that during tender processes they do not exaggerate their capabilities and should conduct thorough, documented assessments of prospective delivery timing before making any representations. Reliance on inherent risks in IT projects is unlikely, in itself, to be sufficient to substantiate any failure to meet representations “made by the sales guys”.
Welcome to the ‘real world’ guys…… See more on the judgement