Getting the right technology for your business is business critical. Get it wrong and the future of the business may well be on the line. I see this from the perspective of one who acts for technology users and developers to resolve disputes when things do go wrong. Investing time and thought to ensure the technology is the best fit ‘for the now’ is all very well, but if that defines your approach, your aim is going to be some way off target. Of course, the future is full of uncertainty and future proofing is a nigh-on impossible task, but that does not mean that ‘crystal ball gazing’ should be relegated to the side-lines when working with a technology supplier to produce a solution for your enterprise.
Gazing into that crystal orb is time well spent. And therein lies the rub; you may well get the best value from that exercise if the supplier is gathered around the glass with you. Of course, bringing someone from outside onto your intensely confidential business curtilage can be counter-intuitive. It can be full of risk (perceived and real) for both supplier and purchaser. Indeed, those risks may well be determinative; a need for absolute territorial integrity may be definitive. However, if collaboration will be beneficial, then the question is; can it be managed to achieve an acceptable balance of risks?
One recent case has shown the dangers of a component designer and supplier being kept at arm’s length of the full service use of the product and given a ‘flat’ purpose specification (one produced to meet a current technical requirement) without due thought being given to the developing context to which the component would be subject over the projected life of the product.
The result for the purchaser was inherent performance limitations for the product and ultimately, a complex and expensive legal claim for many millions against the supplier. We know that technology lifecycles are alarmingly short. What is in date one day can be out of date the next. A component or IT solution can be redundant within a blink of an eye. It follows that a tick box mentality by a purchaser’s procurement team needs to make way for the careful application of thought to the potential significance of a component’s adaptability to future service requirements and how best to work with the supplier to achieve product resilience against the onward rush of change.
Don’t get me wrong, this is not to advocate the abandonment of discretion in dealing with a supplier or purchaser. Quite the contrary. That would be dangerous. What experience points to is the need to plan; to think forward and think broadly, and, at the outset, measure carefully the extent to which collaboration is going to be necessary or beneficial to mitigate the future risk of procurement failure.
The collateral damage of future performance failure can be immense. Once armed with the forward-thought plan for the technology procurement, you are in the best place to measure the legal risks and define the risk mitigation measures that need to be reflected in the design, build, IP protection and supply documents that support the project. As to that, it is vital that experienced commercial technology lawyers are brought in to advise and produce the documents, to ensure that the best protection is in place. That is where our Technology Law team comes into its own.