In part one, I talked about the importance of using – correctly and consistently – the terminology that the underlying contract requires.

This time, we’ll look at a different but related topic, that of making sure that your technical schedule or statement of work actually does all of the things that the legal terms assume it will do.

The core of the problem

At its heart, this is a rather simple point; the legal terms will typically leave the details of the who, what, when and how to a schedule or a statement of work, and will therefore assume that schedule or statement of work includes certain information.

It is therefore crucial that the schedule or statement of work actually does include those things.

It may sound simple in theory, but it’s amazing how often I come across contracts where the legal terms assume that the schedule or statement of work will include a certain piece of information, or specify whether or not something applies or when something is going to happen, and then the actual schedule or statement of work doesn’t do that.

The result can be a contract with some big holes in it, from clarity on whether or not a particular acceptance regime applies, to uncertainty about what the actual contract price is!

Why it happens

I think the main cause is a lack of communication between the lawyers and the technical people.

Lawyers tend to assume that others will take care of the schedules or statements of work and they don’t need to do anything with them, and technical people tend to assume (for perfectly understandable reasons) that the “legals” aren’t relevant to the work they’re doing.

The result is that neither thinks about what the other is doing, and so they don’t talk to each other.

Prevention is better than cure

Fortunately, this is not an especially difficult issue to prevent, as long as it’s thought about early enough and – crucially - before the schedule or statement of work is written. 

One simply needs to find out whatever term the contract uses to refer to the schedule or statement of work in question, and then do a search of the contract for every time it is mentioned. From there, it is easy to make a checklist of everything that needs to go in.

Ideally your lawyer should do this for you, but if you don’t have one then that’s not the end of the world. As long as you can read and you can use the search function in Word it isn’t difficult, and I find it typically takes me less than half an hour to do (and sometimes much less).

What is much more difficult however is trying to retrofit a schedule or a statement of work that has already been written, and perhaps discussed and amended and re-amended to death already.

I’ve had to do that quite a few times over the years on deals where I’ve been brought in at the last minute, and as jobs they all tend to have three things in common; they’re difficult, they’re time-consuming, and they’re expensive.

Nobody wants that. So, think early about how you’re going to ensure that the legal and technical parts of your contract actually work together.

If you’re a lawyer, talk to your technical and operational people. If you’re a technical or operational person, talk to your lawyer.