Lesson Learned: Take control over the key players vendors assign to your contracts
Category: Contract Management
The following post is a “Lesson Learned” that comes from the analysis of the failed projects documented in the “Catalogue of Catastrophe” or from the experiences the editorial team have had working with clients around the world. The post is published here to spark discussion and help organizations think about what it takes to improve project success rates.
In today’s competitive markets sellers sometimes feel the pressure to use aggressive marketing tactics in order to sell their products or services. As buyers of professional services know, one such marketing tactic is “bait and switch”. In a bait and switch, the seller uses their most seasoned professionals to do the sales pitch, but once the contract is signed, the seller assigns much more junior staff to actually perform the work.
In legal terms “bait and switch” is defined as being a marketing tactic whereby a vendor advertises one product or service of a certain price and quality, yet when the customer wishes to order that particular product, they are advised that the item is no longer available, and they are pressured into considering a more expensive and/or lesser quality substitute. Bait and switch has its origins in the retail sector, where laws protecting the consumer are well established. Unfortunately, in the professional services industry bait and switch is also being used and the legal situation is much less clear. Marin County (Marin) vs. Deloitte Consulting LLP (Deloitte) (MERIT Project) is a recent example1 in which a buyer accused a seller of using a bait and switch type tactic
In the Marin vs. Deloitte case, Marin alleged that Deloitte did not provide Marin with the quality team that Marin expected from the presales presentation. Following the failure of the project, Marin decided to take the issue to the courts. Following the legal process the Court disagreed with Marin’s view of the situation saying that any assertions made during the bid process were just “puffery” (statements that were obviously exaggerated and that the average customer would not fall victim to such behavior 2).
Given that this issue has been around for such a long time and many buyers have seen the issue first hand, it’s time that buyers matured a little and took reasonable steps to protect their interests. Although there is no silver bullet that assures avoidance of bait and switch, when contracting professional services, there certainly are steps you can take to reduce the risk.
- Do not rely on pre-contract representations as being an assurance that key vendor staff will be allocated to your project - Unless there are facts regarding personnel achievements and expertise that are identified in the contract, you cannot expect to benefit from them.
- Do not give the responsibility of monitor and control of personnel movement to the vendor - You must be in charge of approval and acceptance of key personnel movement on and off the project.
- When evaluating vendor staff, do not rely on resumes - Resumes are personnel marketing tools and hence the potential for “puffery” is high. Instead consider putting in place a standard fill in template (a “skills and experience disclosure statement”) that staff assigned to the project by the seller are required to complete and submit to you for approval before the staff are accepted into the project. The disclosure statement template should be structured to elicit straightforward employment and experience facts (years of experience – size of projects worked on – roles performed – number of people directly supervised, etc) rather than superlatives or other subjective language.
- Require an Org Chart - The vendor must provide an organizational chart that defines the key team players. The org chart will also serve as a basis for understanding team member responsibility, making it a particularly useful tool when faced with the impact of personnel replacement.
- Do not assume that the initial team will remain on your project - People have to leave projects for some very legitimate reasons. You must ensure that they are replaced by people of at least equal qualifications. The contract must include a process for key personnel replacement i.e. how key people are to be replaced and how the replacements are approved.
Resolution strategies to consider:
Developing a skills and experience disclosure statement for inclusion in your RFP and contract terms /Relying on project personnel proven skills and knowledge only / Requiring an organizational chart in responses to your RFP / controlling key personnel movement on and off your project team.
Contributing Editor: Brig Henry
- Superior Court of California, County of Marin – May 28, 2010
- Deloitte’s Puffery in their RFP to Marin County and What it Means for Current and Future Clients