Change and Permanence
- Lack of specifics. In most agile methodologies the product is not defined up front. Instead the product evolves, organically, embracing changes along the way. This makes it hard to define exactly what is or is not being delivered in a contract.
- Agreements to agree. Agilists frequently defer decisions on what is or is not in an iteration, or end product. This lack of up front decision making goes directly against the tenets and principles of contract law and would make it difficult to enforce contracts through lawsuits, arbitration or mediation in the event of a dispute.
- Ensure there is a basic understanding of what agile development is and what benefits it can deliver at an early stage in the process. Brief crib sheets or case studies may help to illustrate and secure buy-in. Be upfront about the risks, but focus on characteristics of agile which may help to mitigate those risks. For example, agile's focus on a working deliverable at the end of each iteration can help to alleviate lawyers' concerns about early termination and liability provisions.
- Consider the relative merits and risks of agile versus waterfall for the proposed project in light of the scale of the project, the culture of the customer organization, the availability of resource on the customer side and so on. Decide early whether that analysis rules out any specific approach for the project concerned.
- As a customer, ensure that business case documentation and requests for proposals (RFPs) are sufficiently flexible to accommodate agile methodologies - assuming point 2 above has not ruled these out. Good procurement practice will generally involve lawyers seeking to attach proposed contract terms to RFP documentation to secure agreement in principle from suppliers, but this can be problematic if those terms assume a waterfall delivery methodology, as many based on existing precedents do. Consider seeking similar comfort by attaching a set of contract principles or dual forms of contract to reflect each approach.
- Work with lawyers to consider limited contractual controls to re-introduce further certainty: "Minimum Viable Product" definitions, capped overall project costs, and long-stop delivery dates are all examples. While these arguably start to chip away at the flexibility of agile, hybrid models like this can work as long as the trade-off is properly understood.
Customer collaboration over contract negotiation
Too bad people with severely low IQ's write this junk and get away with it.