The Shape of Code

When submitting a bid, to be awarded the contract to develop a software system, companies have to provide information on costs and delivery dates. If the costs are significantly underestimated, and/or the delivery dates woefully optimistic, one or more of the companies involved may resort to legal action.

Searching the British and Irish Legal Information Institute‘s Technology and Construction Court Decisions throws up two interesting cases (when searching on “source code”; I have not been able to figure out the patterns in the results that were not returned by their search engine {when I expected some cases to be returned}).

The estimation and implementation activities described in the judgements for these two cases could apply to many software projects, both successful and unsuccessful. Claiming that the system will be ready by the go-live date specified by the customer is an essential component of winning a bid, the huge uncertainties in the likely effort required comes as standard in the software industry environment, and discovering lots of unforeseen work after signing the contract (because the minimum was spent on the bid estimate) is not software specific.

The first case is huge (BSkyB/Sky won the case and EDS had to pay £200+ million): (1) BSkyB Limited (2) Sky Subscribers Services Limited: Claimants – and (1) HP Enterprise Services UK Limited (formerly Electronic Data Systems Limited) (2) Electronic Data systems LLC (Formerly Electronic Data Systems Corporation: Defendants. The amount bid was a lot less than £200 million (paragraph 729 “The total EDS “Sell Price” was £54,195,013 which represented an overall margin of 27% over the EDS Price of £39.4 million.” see paragraph 90 for a breakdown).

What can be learned from the judgement for this case (the letter of Intent was subsequently signed on 9 August 2000, and the High Court decision was handed down on 26 January 2010)?

• If you have not been involved in putting together a bid for a large project, paragraphs 58-92 provides a good description of the kinds of activities involved. Paragraphs 697-755 discuss costing details, and paragraphs 773-804 manpower and timing details,
• if you have never seen a software development contract, paragraphs 93-105 illustrate some of the ways in which delivery/payments milestones are broken down and connected. Paragraph 803 will sound familiar to developers who have worked on large projects: “… I conclude that much of Joe Galloway’s evidence in relation to planning at the bid stage was false and was created to cover up the inadequacies of this aspect of the bidding process in which he took the central role.” The difference here is that the money involved was large enough to make it worthwhile investing in a court case, and Sky obviously believed that they could only be blamed for minor implementation problems,
• don’t have the manager in charge of the project give perjured evidence (paragraph 195 “… Joe Galloway’s credibility was completely destroyed by his perjured evidence over a prolonged period.”). Bringing the law of deceit and negligent misrepresentation into a case can substantially increase/decrease the size of the final bill,
• successfully completing an implementation plan requires people with the necessary skills to do the work, and good people are a scarce resource. Projects fail if they cannot attract and keep the right people; see paragraphs 1262-1267.

A consequence of the judge’s finding of misrepresentation by EDS is a requirement to consider the financial consequences. One item of particular interest is the need to calculate the likely effort and time needed by alternative suppliers to implement the CRM System.

The only way to estimate, with any degree of confidence, the likely cost of implementing the required CRM system is to use a conventional estimation process, i.e., a group of people with the relevant domain knowledge work together for some months to figure out an implementation plan, and then cost it. This approach costs a lot of money, and ties up scarce expertise for long periods of time; is there a cheaper method?

Management at the claimant/defence companies will have appreciated that the original cost estimate is likely to be as good as any, apart from being tainted by the perjury of the lead manager. So they all signed up to using Tasseography, e.g., they get their respective experts to estimate the amount of code that needs to be produce to implement the system, calculate how long it would take to write this code and multiply by the hourly rate for a developer. I would loved to have been a fly on the wall when the respective IT experts, all experienced in provided expert testimony, were briefed. Surely the experts all knew that the ballpark figure was that of the original EDS estimate, and that their job was to come up with a lower/high figure?

What other interpretation could there be for such a bone headed approach to cost estimation?

The EDS expert based his calculation on the debunked COCOMO model (ok, my debunking occurred over six years later, but others have done it much earlier).

The Sky expert based his calculation on the use of function points, i.e., estimation function points rather than lines of code, and then multiply by average cost per function point.

The legal teams point out the flaws in the opposing team’s approach, and the judge does a good job of understanding the issues and reaching a compromise.

There may be interesting points tucked away in the many paragraphs covering various legal issues. I barely skimmed these.

The second case is not as large (the judgement contains a third the number of paragraphs, and the judgement handed down on 19 February 2021 required IBM to pay £13+ million): SCIS GENERAL INSURANCE LIMITED: Claimant – and – IBM UNITED KINGDOM LIMITED: Defendant.

Again there is lots to learn about how projects are planned, estimated and payments/deliveries structured. There are staffing issues; paragraph 104 highlights how the client’s subject matter experts are stuck in their ways, e.g., configuring the new system for how things used to work and not attending workshops to learn about the new way of doing things.

Every IT case needs claimant/defendant experts and their collection of magic spells. The IBM expert calculated that the software contained technical debt to the tune of 4,000 man hours of work (paragraph 154).

If you find any other legal software development cases with the text of the judgement publicly available, please let me know (two other interesting cases with decisions on the British and Irish Legal Information Institute).