Court judgments are not just rulings for or against someone else. Insightful organisations use lessons learned from these to help inform their approach to improving clarity of requirement articulation on complex procurement projects.
As around 85% of all client–supplier disputes on such projects are reported to arise from a misunderstanding of what’s needed – reflecting our own ‘expert witness’ experience – this informs us of the importance of determining better ways to create clarity between parties and leads us into this article addressing how use cases can minimise requirement disputes.
While established wisdom asks us to learn from our own experiences of what has gone well, along with the mistakes made, the process of learning lessons from the experience of others can be far less painful and costly.
At BPG we have spent the last 23 years using our own learnings from these cases to improve our deep domain expertise in technical, contractual and legal matters to help our clients to procure complex projects much more successfully, first time, on time and on budget, along with resolving challenging technical and contractual disputes. This has been across nearly 600 high commercial risk, complex and reputationally sensitive projects.
How can use cases minimise requirement disputes?
As part of our assurance advisory work we are, therefore, able to act as independent and objective expert witnesses to the High Courts, Court of Appeal and Supreme Courts of England and Ireland and The Court of Session in Scotland. The battle scars we have earned throughout this time have been gained through dealing with difficult project issues like these requirement disputes in a multitude of legal cases and we have also reviewed and reported on many others along the way.
Therefore, we know just what a rich vein of useful information exists within the judgments handed down by the courts when it comes to how client organisations can better articulate their requirements through the use of ‘use cases’ to avoid misunderstandings, engage with suppliers so they propose the right solutions, and construct collaborative contracts to drive the best behaviours.
The result? A fit-for-purpose solution that helps client organisations to achieve their business outcomes thanks to a supplier/contractor committed to working hard to support them.
What exactly is a use case
A use case provides a detailed view of how a process currently works alongside how the solution/project a supplier is to create for you is expected to work, and identifying the specific improvements this hopes to achieve.
In a little more detail, a use case offers context on how your workplace organisational processes currently operate (similar to a business process map), where potential improvements appear to have been identified and where each process fits into the overall department or function within the organisation. These form part of the overall ‘requirements’ information necessary during early market testing and/or a formal procurement exercise, along with your project’s business case and storyboard.
Use cases are fundamental to the successful communication of your requirements and expectations to your potential supplier/contractors.
Great use cases bring your requirements ‘to life’.
How do I develop a great use case?
A use case describes the ‘operational aspects’ of the business department or business function within the complex project you are undertaking, what the outputs of the operational flow of the use case are at each stage, why the process operates in the way it does, the benefits, the challenges with the existing process and what improvements to the process would be helpful.
Use cases would normally contain:
- An end-to-end walk-through of the key operational processes.
- Three examples of the process: (1) basic, (2) intermediate and (3) complex. You would usually have a percentage of how many processes (in broad terms) of each of these three to give the prospective solutions partner an idea of the resources required to configure its solution.
- A description of when the process becomes misaligned and examples of how it is remediated. Ideally, three examples.
- Operational, data (input) and resources.
- Material co-dependencies and integrations with other use cases.
- Thoughts on improvements in the process and why.
- Events/flows that trigger the use case.
How are use cases considered?
Use cases, as part of your requirements, provide you with greater certainty that your supplier/contractor will:
- ‘Ask the right questions’ in the context of the overall business change. It encourages supplier/contractor integrity.
- Assess how each specific use case will help to achieve your operational objectives.
- Understand how each use case operates on an end-to-end basis and its operational inputs.
- Identify where the supplier’s proposed solution is able, or unable, to support each use case, any compromises you will need to absorb and what the consequential operational impact on your workflow is likely to be.
- Qualify themselves in or out of your project at an early stage. It assures maximum time is invested with suppliers/contractors that are most likely to be able to deliver a fit for purpose solution, first time, on time and to budget within the financial, operational, resource and time constraints within which you need to have the project successfully implemented.
Is a use case really necessary before going to market?
Many suppliers and contractors represent themselves as ‘experts’ in their field. However, what you might believe an expert should understand about your complex project, may become lost in translation between the ‘requirements’ outlined in the procurement tender/bid process and the design/implementation phase of the project once the order has been placed.
This is why use cases can be so helpful in offering clarity to your supplier/contractor, so they can (a) ‘ask you the right questions’ about how you operate now and what changes to those operations you think might be helpful in the future and (b) hold suppliers/contractors contractually to account for fitness for purpose of the solutions they propose to you.
What happens if use cases aren’t supplied or aren’t structured correctly?
Our expert witness work for the courts evidences that many use cases and requirements are not structured to provide the detail and context that an expert/specialist supplier/contractor may need during the tender/bidding or change control process. Therefore, during solution design and/or implementation, this can often lead to fundamental misunderstandings between the parties, causing costly – in both time and money – disputes. In turn, this often increases the project costs themselves by up to around 56% and implementation timescales may rise by up to around 200%.
Conclusion
The 15th annual litigation trends survey from London law firm, Norton Rose Fulbright, which asked almost 300 senior members of the legal community for their opinion, determined that 35% of all those asked believed that the number of disputes is on an upward trend over the next few years at least, with only 9% believing that the numbers would fall.
In our experience, client–supplier disputes occur most often as a result of misunderstandings over requirements. There will be opportunists in every marketplace, but the majority of suppliers and clients wish to do their best to work together to achieve their stated goals. However, small miscommunications or misinterpretations, if left unchecked, can grow into significant issues over time.
One way of avoiding this eventuality is to utilise every means at your disposal to improve clarity and specificity, both of which can be achieved through the effective use of use cases.
