Law firm prepares for agile contracting

Momentum builds behind moves to write development contracts that reflect project reality

Law firm Bird & Bird is working on a legal contract model specifically written for agile development projects, a methodology law firms have traditionally advised clients against using because of contractual and warranty issues.

The firm will shortly circulate its Contracting for Agile whitepaper to a focus group of developers and end-users drawn from its client base. Successive stages of feedback will be used to produce a draft contract, which the firm says will be ready for use in large-scale agile and hybrid development projects before the end of the year.

"Lawyers have been writing contracts that fit the sequential waterfall methodology... but if the developer uses an agile methodology, the contract bears no relation to what is actually happening in the project," Roger Bickerstaff, Bird & Bird partner and joint head of its international IT sector group (pictured), told Computing.

"We want to create contracts that reflect the actual situation far more realistically," he added.

Legal contracts between suppliers and customers are written traditionally for the supply of predefined goods to a set deadline, which does not fit with the agile methodology.

"Creating contract structures which can cope with dynamic, interactive arrangements where you have a lot of customer involvement is something of a challenge," said Bickerstaff.

So this forced Bird & Bird to go back to the fundamentals of software contracts.

"If we're to contract properly for agile projects it isn't just a question of slightly adjusting the existing template, we needed to do something more fundamental and ask what is the purpose of the contract?" said Ian Edwards, partner in Bird & Bird's commercial group in London who leads the agile development effort.

Law firm prepares for agile contracting

Momentum builds behind moves to write development contracts that reflect project reality

"Waterfall contracts focus on remedies and termination if the project goes wrong, often to the exclusion of an actual description of the project, what it is and how it is going to be run," he added.

Hence the agile contracts will borrow directly from agile methodologies, describing the roles and responsibilities of individuals, the types of meetings to be held, and the types of documents to be produced.

By focusing on remedies for project failure, conventional contracts tend to be referred to only in emergencies. But Edwards says the agile contracts should be seen as a useful project document that provides guidance and best practice.

The law firm and the focus group have been discussing agile contracts since an initial workshop held in October 2011. But Bickerstaff says he gradually became aware of the paucity of conventional software contracts up to four years ago.

Bird & Bird is not the only law firm to recognise the mismatch between conventional supplier contracts and agile projects. Susan Atkinson of GallenAlliance Solicitors and Gabrielle Benefield from the Scrum Foundation have developed the Evolutionary Contract Model (ECM) as a method for contracting for agile projects.

In June 2011, Atkinson and Kelvin Prescott of Newbury Management Consultancy presented the ECM as part of written evidence to the Public Administration Select Committee examining public-sector IT procurement.

Atkinson has also advised on the project to build the Department for Work and Pensions' Universal Benefit system.

Large law firms have resisted contracting for agile projects and even advised clients against using agile methodologies because the ensuing contracts provide a lower level of warranty for the customer. But Bickerstaff says this is a price worth paying for greater supplier responsiveness and clear customer contractual responsibilities.

"People have been doing agile for over a decade but the law hasn't kept up. If we as lawyers are saying you can't contract on that basis, we'll get cut out of the process completely," he told Computing.