By Tony Collins
Another big, old government IT contract goes wrong. It’s part of civil service tradition that officials blame the supplier for missing milestones and not delivering what the end-users needed or wanted; and the supplier blames the customer for causing or contributing to the alleged defaults.
The Raytheon Systems/Home Office eBorders legal dispute is going along these lines – as did the Department of Health’s dispute with CSC over parts of the failed National Programme for IT [NPfIT].
It’s tradition for the civil service not to take big IT suppliers to court: a hearing could mean that civil servants have to talk about government business in an open courtroom.
Senior Whitehall officials do not want the public knowing how departments are really managed, or not managed.
In 2002 a 44-day court case between National Air Traffic Services and EDS [now HP] ended suddenly – minutes before a senior civil servant was due to give evidence.
Arbitration is different. It’s in secret so a long dispute can be tolerated.
And so a Home Office mega-contract awarded to US company Raytheon in 2007 has ended up in arbitration and is set for a sequence of hearings and appeals that could last years.
It took 10 years for an IT dispute between HP and BSkyB to be settled, and it could take this long for Raytheon and the Home Office to settle their dispute.
In 2003 Tony Blair launches the eBorders programme. He wants a database of foreign travellers entering and leaving Britain to help fight the war on terror.
A year later the Home Office launches Project Semaphore with IBM to pilot an electronic borders system.
In 2007 Jacqui Smith, Labour’s home secretary, signs an eBorders contract with Raytheon Systems as lead supplier and Serco, Detica, QinetiQ and Accenture as subcontractors. It’s worth £750m. Within two years Home Office officials are expressing concern that milestones are being missed.
In 2010 a new coalition government that’s determined not to put up with big, underperforming IT deals, terminates the Raytheon contract after a recommendation by the Major Projects Authority and a coalition review group.
In 2011 it emerges that Raytheon is threatening to sue the Home Office for £500m for repudiating the contract. Raytheon blames project delays on UK Border Agency mismanagement. It’s far from clear that officials knew what they wanted from the systems. Arbitration proceedings begin.
In 2013 it emerges that IBM, Fujitsu and Serco are carrying out some of the original eBorders work.
Home Office loses arbitration
Last year an arbitration tribunal ruled that the Home Office must pay £224m to Raytheon. It found that the decision to terminate Raytheon’s contract was unlawful on a number of grounds. The Home Office had not fully considered the extent to which the Home Office and the UK Border Agency had caused or contributed to the alleged defaults.
Home Office wins appeal
Now the Home Office has won an appeal against the arbitration tribunal’s ruling. A good account of the appeal judgment is on the Pinsent Masons website. Pinsent Masons was acting for the Home Office. The appeal judge found that the arbitration award had been tainted by legal irregularities that could have caused a substantial injustice. The judge took the unprecedented step of setting aside the arbitration award and ordered that the dispute be resolved by a new tribunal.
Raytheon has announced that it is appealing. It points out that the arbitration had 42 days of oral hearings with testimony from multiple witnesses, and had issued a 276 page award decision. Raytheon says it is determined to recover the sums it is due because of the “wrongful” termination of the contract.
It’s five years since Raytheon’s contract was cancelled. It could easily be another five years before all the rulings and appeals are finally over.
It’s easy in hindsight to say, but would it have been better if the Home Office and coalition ministers had spent longer negotiating with Raytheon rather than doing the macho thing of cancelling the contract?