The consulting company’s “sales guys” do a great job of bringing in the client, promising efficiency from a quickly implemented, not-overly-complex integration of out-of-the-box-technology. Management is thrilled to win the contract. The tech folks are intrigued by the prospect of curing a big client’s business pains. And then reality hits. The technology architects have to square their real-world solution and the consulting costs of its implementation with the sales team’s promises regarding time, price and disruptive effect (or lack thereof). As both a technology attorney and a former software/web developer I’ve seen it a hundred times and – to turn a phrase – sixty percent of the time it’s a mismatch every time.
This appears to be precisely the situation in the recently settled suit between Lehigh Valley chemical manufacturer Avantor and IBM, in which Avantor’s business was, per their federal district court complaint (PACER login req’d.), crippled by the mismatch between IBM’s sales promises and their allegedly amateurish and unsuitable implementation.
Tech consultancy general counsels need to involve themselves in these situations from the inception to assure sales teams have adequately consulted technology resources prior to the sale and that technology and business leaders have properly understood and prepared to deliver their contractual obligations to the client.
IBM was said to be “surprised” by the suit. While this is likely PR speak, it should also be a red flag. While it is likely inappropriate for in-house counsel to insert its judgment into the process of each sale, GC’s need to educate their organizations to measure and accurately quantify/qualify their promises to clients. Whether this involves establishing technology/business/sales team collaboration processes or even direct involvement from legal is a question for the organization. However, general counsel cannot remove itself from the establishment of such procedures. In order to manage litigation risk, consulting companies’ general counsel should establish review, collaboration and/or audit procedures to appropriately match contractual promises to technical capabilities Anything less leaves litigation risk management to chance.Tweet