The jurisprudence has long established a duty for the provider to inform and advise during Agile projects. The objective is to counterbalance its privileged position in the control of information for the conclusion and execution of the contract.
What about contracts based on Agile methods?
Agile methods are based on the implementation of the project by successive iterations, the object of the contract being specified as the process progresses. This progressive and evolving definition of the object of the Agile contract logically translates into an alteration of the duty to advise in the preliminary phases of the contract. This is essentially found during the negotiation and the beginning of the execution of the contract. If the parties decide to opt for an Agile approach, the client’s reasonable expectations as to the initial definition of the contractual subject matter are necessarily lessened as to the precision and completeness of this definition.
However, a specific obligation of information and advice should be added concerning the opportunity of choosing the Agile method. For this, the service provider will have to take into account both the needs and the resources of the client.
In addition, a reinforced obligation of advice, which must be enshrined when the Agile process involves making important decisions for the evolution of the project. In this case, the client can legitimately expect full information and sound advice from the provider. This is more than an alteration of the duty to advise traditionally established by the jurisprudence in the field of IT contracts. It is a shift of this duty towards the execution phase of Agile contracts that should take place.
This shift should be reflected in specific contractual clauses to:
- clarify the role of the parties in the Agile process
- specify the scope of the provider’s obligations.
Finally, it will be crucial for the parties to document the execution of Agile processes. Indeed, it is essential to keep a record of the basis on which decisions are made by the parties in the execution phase of the contract.
Our advice:
Agile methods are based on a close cooperation between the provider and the client, throughout the successive iterations of the project.
This imposes a particular duty of advice on the part of the professional, in the execution phase of the contract.
It is therefore essential to properly document the Agile process and to organize its implementation steps in the contract.
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