Has Fujitsu won £700m NHS legal dispute?

By Tony Collins

The Telegraph reports unconfirmed rumours that Fujitsu has thrown a party at the Savoy to celebrate the successful end of its long-running dispute with the NHS over a failed £896m NPfIT contract.

Government officials are being coy about the settlement which implies that Fujitsu has indeed won its legal dispute with the Department of Health, at a potential cost to taxpayers of hundreds of millions of pounds.

Fujitsu sued the DH for £700m after it was ejected from its NPfIT contract to deliver the Cerner Millennium system to NHS trusts in the south of England.

At one point a former ambassador to Japan was said to have been involved in trying to broker an out-of-court settlement with Fujitsu at UK and global level.

But the final cost of the settlement is much higher than any figure agreed, for the Department of Health paid tens, possibly hundreds of millions of pounds, more than market prices for BT to take over from Fujitsu support for NHS trusts in the south of England. The DH paid BT £546m to take over from Fujitsu which triggered a minor Parliamentary inquiry.

A case that couldn’t go to court?

The FT reported in 2011 that Fujitsu and the Department of Health had been unable to resolve their dispute in arbitration and a court case was “almost inevitable”.

But the FT article did not take account of the fact that major government departments do not take large IT suppliers to an open courtroom. Though there have been many legal disputes between IT suppliers and Whitehall they have only once reached an open courtroom [HP versus National Air Traffic Services] – and the case collapsed hours before a senior civil servant was due to take the witness stand.

Nightmare for taxpayers

Now the Telegraph says:

“Unconfirmed reports circulating in the industry suggest that a long-running dispute over the Japan-based Fujitsu’s claim against the NHS for the cancellation of an £896 million contract has finally been settled – in favour of Fujitsu.”

It adds:

The government’s legal costs alone were £31.45m by the end of 2012 in the Fujitsu case.

Francis Maude, Cabinet Office minister, is likely to be aware that his officials will face Parliamentary criticisms for keeping quiet about the settlement. The Cabinet Office is supposed to be the home of open government.

Earlier this week the National Audit Office reported that Capgemini and Fujitsu are due to collect a combined profit of about £1.2bn from the “Aspire” outsourcing contract with HM Revenue and Customs.

Richard Bacon, a Conservative member of the Public Accounts Committee is quoted in the Telegraph as saying the settlement with Fujitsu has implications across the public sector. “It should be plain to anyone that we are witnessing systemic failure in the government’s ability to contract.”

What went wrong?

The Department of Health and Fujitsu signed a deal in January 2004 in good faith, but before either side had a clear idea of how difficult it would be to install arguably over-specified systems in hospitals where staff had little time to meet the demands of new technology.

Both sides later tried to renegotiate the contract but talks failed.

In 2008 Fujitsu Services withdrew from the talks because the terms set down by the health service were unaffordable, a director disclosed to MPs.

Fujitsu’s withdrawal prompted the Department of Health to terminate the company’s contract under the NHS’s National Programme for IT (NPfIT).

Fujitsu’s direct losses on the contract at that time – which was in part for the supply and installation of the Cerner “Millennium” system – were understood to be about £340m.

At a hearing of the Public Accounts Committee into the NPfIT,  Peter Hutchinson, Fujitsu’s then group director for UK public services, said that his company had been willing to continue with its original NPfIT contract – even when talks over the contract “re-set” had failed.

“We withdrew from the re-set negotiations. We were still perfectly willing and able to deliver to the original contract,” he said.

Asked by committee MP Richard Bacon why Fujitsu had withdrawn Hutchinson said, “We had tried for a very long period of time to re-set the contract to match what everybody agreed was what the NHS really needed in terms of the contractual format.

“In the end the terms the NHS were willing to agree to we could not have afforded. Whilst we have been very committed to this programme and have put a lot of our time, energy and money behind it we have other stakeholders we have to worry about including our shareholders, our pension funds, our pensioners and the staff who work in the company. There was a limit beyond which we could not go.”

The termination of Fujitsu’s contract left the NHS with a “gaping hole,” said the then chairman of the Public Accounts Committee Edward Leigh.

Thank you to campaigner Dave Orr for drawing my attention to the Telegraph article.

Comment 

In an era on open government it is probably not right for officials and ministers at the Cabinet Office and the Department of Heath to be allowed to secretly plunge their hands into public coffers to pay Fujitsu for a massive failure that officialdom is too embarrassed to talk about.

Why did the DH in 2008 end Fujitsu’s contract rather than renegotiate its own unrealistic gold-plated contract specifications? Should those who ended the contract be held accountable today for the settlement?

The answer is nobody is accountable in part because the terms of the dispute aren’t known. Nobody knows each side’s arguments. Nobody even knows for certain who has won and who has lost. Possibly the government has paid out hundreds of millions of pounds to Fujitsu on the quiet, for no benefit to taxpayers.

Is this in the spirit of government of the people, by the people, for the people?