Transcript Investigations - Victorian Government Solicitor`s Office

Your speakers:
Sue Nolen
ICT Projects in government
Assistant Victorian Government
Solicitor
VGSO
Challenges for procurement and
contract management
Erin Barlow
Manager, Investigations, Victorian
Ombudsman's Office
Isabel Parsons
26 April 2012
Special Counsel
VGSO
Key Challenges
Sue Nolen
Key Challenges and reflections on
the Ombudsman’s report
• Procurement risks: reliance on vendor’s
capacity to deliver, and viable
subcontracts
• Legislative requirements, public
accountability
• Managing stakeholders’ requirements and
project governance
The Victorian Ombudsman’s
investigation into ICT-enabled
projects
Erin Barlow, A/Principal Investigator
Session overview
ICT report
•
Background
•
Scope
•
Objectives and methodology
•
Conclusion
•
Recommendations
Questions
Background
What is ICT? What is ICT-enabled?
History of ICT failures: state, national and international level
Ombudsman and Auditor-General reports on ICT
Little signs of lessons learnt
Ombudsman and Auditor-General agreed to investigate
April 2011: Ombudsman commenced own motion investigation
Conducted in consultation with the Victorian Auditor-General’s Office.
Scope
Examined 10 ICT-enabled projects:
–
Link (Victoria Police)
–
HealthSMART (Department of Health)
–
myki (Transport Ticketing Authority)
–
Registration and Licensing – RandL (VicRoads)
–
Client Relationship Information System – CRIS (Department of Human Services)
–
Ultranet (Department of Education and Early Childhood Development)
–
Integrated Courts Management System – ICMS (Department of Justice)
–
Property and Laboratory Management – PALM (Victoria Police)
–
HRAssist (Victoria Police)
–
Housing Integrated Information Program – HIIP (Office of Housing).
Investigation
Objectives:
–
determine whether the projects were over-budget and/or delayed and the reasons for this
–
determine whether the ICT systems met the needs for which they were designed
–
determine who should take responsibility for project failures
–
determine what lessons can be learned.
Methodology:
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investigators reviewed public documentation on ICT project failings/learnings
–
investigators met with or interviewed over 100 people
–
investigators conducted site visits to child protection, housing and education offices;
hospitals; and the Supreme Court
–
investigators reviewed extensive documentation relating to planning, procurement, project
delivery and training.
Conclusions
Every one of the projects failed to meet expectations; most failed to meet delivery
timelines; and all ran over budget.
The latest estimated cost is significantly more than budgeted. Current estimate: $2.74
billion.
–
The budget for DHS’s CRIS project increased by 272 per cent.
–
If Link were to be completed it would cost over three times the original budget.
There has also been significant wastage:
–
VicRoads spent $50 million on RandL over three years – at the time of the report, the project had not made it
past the design phase and was yet to receive funding for project delivery.
–
Victoria Police spent $59 million on Link over five years – the project has now been cancelled and this
money is lost.
The additional money spent on these projects represents many foregone hospital beds,
trains, police and child protection workers.
Five common
themes
Leadership, accountability and governance
Roles and responsibilities for ICT-enabled projects were often not clearly defined,
acknowledged and accepted.
Senior officers appeared reluctant to make critical decisions about projects.
Many of the project steering committees did not have the requisite expertise.
Many of the projects would have benefited from the Department of Treasury and Finance
(DTF) taking a more pro-active role.
The effectiveness of DTF’s Gateway Review process was limited by its reliance on agencies
engaging in and being supportive of the process, which often was not the case.
There was limited publicly available information about the ‘high-value and high-risk’
process and some witnesses from DTF and departments remained unclear about it.
Five common themes
Planning
In some cases, optimism bias led to costs and timelines being based upon hope, rather
than evidence or comparisons with similar projects and in spite of advice from
experts and vendors.
Agencies often gave the government no choice other than to invest in the agency’s
preferred option and failed to provide government with adequate advice to make an
informed decision.
Business cases for many of the projects were not updated throughout the life of the
projects. In some cases, they were not read by key people.
Insufficient attention was given to managing or mitigating risks.
Five common themes
Funding
Agencies felt the need to create ‘big vision’ projects to capture the government’s attention,
which increased complexity and risk.
In some cases the Budget and Expenditure Review Committee (BERC) only partially funded
projects, but agencies failed to revise the scope of the project to fit within the allocated
budget.
Public announcement of major project funding decisions prior to business case development
resulted in business cases being rushed and projects being ‘shoe-horned’ into the published
funding ceiling.
The costs and timelines of comparative projects were sometimes ignored.
Projects funded internally have not been subject to the same level of scrutiny as BERC-funded
projects.
Agencies were unable to identify the cost of significant projects with any accuracy.
Five common themes
Probity and procurement
Agencies appeared to pay limited regard and expended minimal funds on probity advice
and audit.
Agency and probity practitioner responses to conflict of interest sometimes failed to
recognise the importance of the perception of a conflict of interest.
Agencies tended to purchase off-the-shelf systems and customise them to such a degree
that the benefits were lost to government.
The evidence suggests government should explore new procurement methods for ICTenabled projects.
Large vendors are well-versed and experienced in contract negotiations, putting
relatively inexperienced government staff at a disadvantage.
Five common themes
Project management
Several agencies failed to act with enough urgency to address potential problems and in
doing so allowed the issue to escalate.
There is a shortage of skilled senior project managers with relevant ICT experience in
government. To compensate, agencies often appoint expensive contractors or
inexperienced public sector staff.
Managing vendor and user relationships can be a complex exercise and agencies have
adopted differing approaches to this problem with different degrees of success.
Approaches to training staff were varied and not always effective.
Recommendations
The framework within which agencies seek funds, manage and review projects needs to
be improved.
The scale of the problem suggests that significant ICT-enabled projects should be treated
as a special case at least until the bureaucracy is sufficiently experienced to handle
these projects well.
The Ombudsman developed a framework that builds on current guidance and advice
from the Auditor-General and DTF and provides a practical solution to many of the
problems commonly encountered. The framework contains 42 recommendations
based around the five common themes.
The Ombudsman also made recommendations that suggest a way forward for each of the
10 projects.
Recommendations
For all ICT-enabled projects over $20 million:
•
Increasing the oversight and accountability of Ministers and secretaries.
•
Enhancing the role and accountability of DTF.
•
Capitalising on the value of Gateway, including making it mandatory.
•
Requiring that agencies seek funding and undertake projects in stages.
•
Waiting until the completion of the planning/procurement before announcing
funding/timelines.
•
Examining the ‘competitive dialogue’ process used in the United Kingdom for ICT
procurement.
•
Examining strategies to attract skilled ICT staff.
•
Ensuring VGSO is briefed early and that it endorses all contracts.
Future review
These problems are not limited to the Victorian public sector.
There is no panacea.
Arrangements would benefit from a review in two years time to ensure their
effectiveness, ongoing relevance and practicability.
Questions?
Legal issues for contract
management in ICT Projects
Isabel Parsons
Contract management themes in
the Ombudsman's Report
• Insufficient attention given to managing/mitigating risks
• Challenges with heavy customisation or leading
edge/untried systems
• Failure to act with urgency to address
problems/escalation
• Complexities of managing vendor and user relationships
• Reluctance of senior officers to make critical decisions
Principles of contract law
• Common law of contract - principles of
formation and construction
• Implied obligations - cooperation, good
faith
• Constraints on exercising rights - election
to continue, estoppel
A case study: GEC Marconi Systems v
BHP Information Technology [2003]
FCA 50
• Commonwealth procurement: Sub-contract between
BHP-IT and GEC Marconi
• Failure of DFAT to provide security device (STUBS),
operation of change request CR3049 and subsequent
activities
• No amendment to the sub-contract
• GEC Marconi faced significant losses on the project and
sought to terminate
• Many cross claims, including against DFAT for
misleading and departure conduct
Key questions in GEC Marconi
case
• Had the sub-contract been varied to reflect
CR3049? (No written agreement)
• Had GEC Marconi elected to treat the contract
as being on foot, rather than to terminate?
• Did GEC Marconi’s conduct amount to
repudiation of its obligations under the subcontract, and was BHP-IT entitled to damages
for breach?
Outcomes in GEC Marconi case
• There had been a variation to the sub-contract –
terms were identified from conduct and
correspondence
• GEC Marconi had elected to perform the subcontract, including the STUBS variation, and
was precluded from terminating for that breach
• Court considered obligations of the parties to act
in good faith
Alston v Yokogama Australia
(No. 7) [2012] SASC 49
• Construction contract case
• Considered implied duties of parties to cooperate with each other and obligation of
good faith in the context of
interdependencies in work to be performed
Good faith and dispute resolution
• ‘Meet and discuss in good faith with a view to
resolving dispute’ (VGPB)
• ‘Use reasonable commercial efforts to resolve by
negotiation’ (GITC)
• Express obligation: United Group Rail Services
Ltd v Rail Corporation NSW [2008] NSWSC
1364 and [2009] NSWCA 177
Good faith and termination for
convenience
• Kellogg Brown & Root Pty Ltd v Australian
Aerospace Ltd [2007] VSC 200 – may terminate
by notice in writing
• Solution 1 Pty Ltd v Optus Networks Pty Limited
& Ors [2010] NSWSC 1060 – for any reason and
at any time in Optus’ absolute discretion
• Risks in using these clauses to change supplier,
or to terminate for non-performance
From contract to contract
management
•
•
•
•
Don’t ‘put the contract in the bottom drawer’
Comply with VGPB Contract Management Policy
Follow appropriate methodology
Adapt resources – VGPB Category Management
Materials, Gateway Review Gate 5 Readiness
for Service
• VAGO 2008 ‘Investing Smarter in Public Sector
ICT: Turning Principles into Practice’
Change management and
variations
• Have you created a new contract without really
trying?
• Correspondence, change orders and conduct
may vary your contract
• Deprives State of benefit of key provisions and
ongoing rights
• Document this carefully, with clear reservations
of rights
• Use deeds of variation
Killing projects – termination ‘early
and often’
• Prior to acceptance - is this realistic?
• Is termination an option for the State –
Critical systems or services
• Termination for convenience or breach?
• State is vulnerable to lengthy, complex
and costly litigation
Reaction time – keeping your
options open
• For how long – stakeholder management and
senior decision maker involvement is critical
• Effective contract management informs good
decision making
• What happens during the delay determines
whether rights are lost
• Evasive statements to contractors or lack of cooperation may lead to claims against the State
Questions?