Part 5. Managing the Project
Effective management of a consulting project remains a major factor, if not the major factor, in its successful completion. The attitude of the agency toward the consultant, the type of relationships established, the communication patterns, and the management techniques that are employed are crucial to the successful use of planning consultants.
Beginning Work with the Consultant
The professional services agreement should define the project objectives and the general scope of services. Even if the agreement is only a letter, it should address those basic issues. The agreement should also specify the budget and other issues affecting the conduct of the work. If there are issues that arise after the agreement that affect the project or the relationship or if, for some reason, some issues were not addressed in the contract or the contract negotiations, the agency should brief the consultant on these issues before beginning the work. Some political issues will probably have been addressed during interviews or contract negotiations. However, it is important at this point that the project manager for the planning agency give the project manager for the consultant a complete political briefing. That briefing should include a discussion of:
The consultant must also be told who the ultimate client is.
While the planning director may handle all issues relating to technical matters and may indeed be the ultimate client, there will be cases when the planning commission, the mayor or manager, or the governing body really decides the fate of a consultant's work or recommendations. If for any reason the agency did not include representatives of the ultimate client in the selection process, it is essential that the consultant meet the ultimate client at the earliest possible stage of the work program.
Working with Staff
If the contract requires or permits the consultant to perform certain work at the agency's offices, the agency should be making arrangements for the appropriate space, furniture, equipment, telephone connections, and supplies while the final contract negotiations are in progress. The agency should do everything possible to facilitate the work of the consultant; providing physical necessities is a very basic item on the list of "everything possible."
Planning agencies often have particular expectations about the format of the work to be submitted. If the contract does not spell out those format requirements, this first stage of the project is an ideal time to address them. If the agency wants drafts submitted double-spaced, one-sided, it should say so at this stage. Some agencies like particular margins or even particular typefaces in printed reports. Most consultants will accommodate such requests, as long as their word processing software and computer hardware is capable. However, it is often easier to adapt to such requests if the document is structured properly from the beginning. When the client ultimately wants to receive electronic as well as paper copies of products, the format of the electronic copies should be established no later than the first stage of the project.
Developing Work Schedules
Communicating with the Consultant
Project managers should be designated for both the planning agency and the consultant. It is essential that the agency work to develop excellent communications with the consultant, working through the respective project managers. "Good communications" means a lot of things. It means:
Clearly half the responsibility for good communications rests on the consultant. However, consultants are generally better at such communications than are planning agencies for one simple reason — their livelihoods depend on it. A consultant who does not return telephone calls, does not respond promptly to questions, and does not submit prompt comments on materials received from clients will not remain a consultant very long. Thus, a planning agency can and should expect such performance from a consultant and work to provide the same thing to the consultant.
Paying the Consultant
When the project reaches an appropriate stage, the consultant will send the agency a bill. For the agency director or project manager, that bill may represent just one more piece of paper on an overflowing desk. For the consultant and the consultant's employees, it is a paycheck and means the same thing to them that the project manager's or planning director's paycheck means to him or her--the money to cover food for the family, the mortgage, the car, and many other expenses. For the consulting firm, it means the ability to pay for the travel expenses incurred for the client and the clerical staff that helped to produce the report, and to continue to provide the agency with the service that it expects.
A good way to develop a solid relationship with a consultant is to ensure that every bill is handled promptly. "Handled promptly" does not mean that it must be paid if it is not due or if the services have not been provided satisfactorily. If, for some reason, the agency's project manager believes the bill should not be paid at that time or that part of it should not be paid at that time, he or she should immediately inform the consultant of that reason. If the project manager is willing to approve a bill immediately but for a smaller amount, he or she should probably seek the consultant's approval to submit the modified bill through the payment system. Some local governments have payment systems that are slow, cumbersome, and prone to mistakes. If an agency knows that it has to deal with such a payment system, the project manager should monitor the progress of the consultant's bills through the system.
If there are particular local processing requirements for payments, the agency should inform the consultant of those requirements. Some local governments use warrant systems that require review of all bills in public meetings; if that is the case, the consultant should be told that and informed of the cutoff date for putting items on the agenda for such a meeting. If payments are processed only monthly or bimonthly, the consultant should also be told the cutoff dates for billings. If the agency can process only bills received in duplicate or with original receipts attached or in a particular format, it should so inform the consultant before the first bill is submitted.
Control Over Process and Product
When an agency decides to hire a consultant, it must remember that there are trade-offs involved. The agency will gain needed expertise and an independent viewpoint, but it will lose some degree of control over the work process as well as over the resulting product, since the consultant is an independent contractor. The agency's control over the product can be enhanced somewhat by specifying the project's goals, objectives, and specific tasks in the agreement. Any sense of a loss of control over the process can be eased by requiring frequent interim reports, scheduling occasional meetings with the consultant (these will be costly), designating a senior staff liaison person, and providing the consultant all the information and other help the firm may need. Beyond this, the agency must resist the temptation to micro-manage the consultant's work. The consultant is a professional and, if the selection process was effective, presumably a competent and qualified professional. Such an individual or firm knows how to do its work. The consultant will need and want general guidance, but constant supervision will be an impediment to delivery of the final product to the agency.
Sometimes a consultant's professional recommendation is contrary to the desires of the agency or the ultimate client. That raises difficult issues. Because there are a variety of solutions to many planning problems, it is perfectly legitimate for the agency to ask the consultant if the consultant's recommendation and the locally preferred solution are incompatible or mutually exclusive. If they are not, the consultant may be able and willing to include both recommendations in the report in some form. Sometimes the consultant's initial recommendation is based on incomplete information. A planning agency certainly can and should provide corrections of factual errors. It should also provide any information that it thinks that the consultant may have missed in order to help the consultant reach the best conclusion possible.
Notwithstanding those possible scenarios, however, there will be times when the planning agency or an important local individual or group simply does not agree with the consultant's conclusion or recommendation. The agency should never expect or ask a consultant to change a professional recommendation to address such concerns. A consultant who will do so is not qualified to provide expert advice and should not have been hired by the community in the first place. If the disagreement is fundamental, it may lead to a parting of the ways between the consultant and the agency. However, before the agency decides that a drastic solution is appropriate, the agency should evaluate the situation carefully. The agency presumably hired the consultant to obtain its expertise, help, or credibility. If the agency ignores the consultant's recommendation, it is receiving none of those.
The best approach to such a situation is a meeting (or conference call) among key personnel on both sides to review the situation. In that meeting, agency staff should attempt to explain why they (or someone else) disagrees with the recommendation, giving as much background and history as possible. The consultant should be asked to explain all of the reasons behind its recommendation, including, where appropriate, examples of relevant success or failures in other communities. From those initial statements of position, the parties should discuss the implications for the rest of the project. In some cases, the controversial recommendation may be somewhat peripheral to the final product and thus have little effect on anything other than the consultant's political stock in the community. In other cases, the consultant, given a little time, may see a way to reconcile the apparently conflicting concerns.
Throughout the relationship, a planning agency must recognize that a consultant is an independent contractor. The consultant was hired as such and should be consistently treated as such.
Evaluating the Consultant's Work
Under "communication," this chapter identified "prompt feedback" as an important aspect of the consultant relationship. That is particularly true where evaluation of the consultant's work is involved. Evaluation involves a range of possibilities. If the consultant submits a great product that will require few if any revisions, the project manager should pick up the phone and offer the consultant thanks and congratulations. If the work is substantively and technically sound but will require revisions, the project manager should promptly notify the consultant of that fact.
If the work is unsatisfactory in some way, more formal and thorough communication is necessary. If the work is technically sound but poorly presented or not presented in accordance with the agency's requirements, the project manager should notify the consultant of that fact and allow the consultant to submit the same work in a revised format. Depending on the circumstances, it may be appropriate for the agency to continue a staff-level review of the substance of the work while the consultant is making the revisions. Where the work is basically satisfactory but incomplete or needing minor substantive revisions, the project manager should talk to the consultant by phone and also send the consultant a letter identifying the corrections that are needed.
In some cases, the work may be entirely unsatisfactory. The agency owes the consultant prompt notification of that fact. If the consultant has previously submitted satisfactory work on the same (or another) project, the agency should give the consultant the benefit of the doubt and assume that the consultant will correct it. If the defective report or plan is the first product received from this consultant, the agency must recognize that the deficiencies may have arisen from an inadequate work program, poor communications, or some other factor in the working relationship. In these circumstances, it is still important to give the consultant the benefit of the doubt and the opportunity to correct the deficiencies.
In cases of serious deficiencies, particularly when they may lead to a "for cause" contract termination, it is essential that the agency enumerate the deficiencies very specifically in a letter. If the letter sounds harsh, the project manager should soften it with a warning phone call. Only when the consultant has ignored prior requests for corrections or otherwise has indicated, implicitly or explicitly, that it will not be cooperative, can the agency in good conscience take a hard line with the consultant. In all other circumstances, the approach should be recognition that the consulting partnership may have created the problem and that the partners (the agency and the consultant) should work together to resolve it.
Resolutions of Disputes
Problems can arise in any relationship. Not finishing tasks or reports on time, substituting junior for senior staff, and submitting inferior or "canned" products are some of the complaints that planning agencies sometimes have about consultants. The most economical and effective way to deal with such problems is, of course, to try to prevent them. The detailed checking of references on past performance, the use of careful selection procedures, the preparation of a detailed, written agreement, and the development of an effective management and communication process are all measures that will minimize the risk of disputes between the planning agency and the consultant.
Even when all these procedures have been faithfully followed, disputes can still occur. In anticipation of such a possibility, a planning agency should include in its professional services agreement a provision addressing the resolution of disputes. When a dispute arises, the parties should review the agreement in detail. Solutions to apparent disputes can often be found in the written agreement.
After an examination of the written agreement and subsequent changes to it, face-to-face discussions with the consultant are in order. Many disputes arise from misunderstandings. By beginning such a meeting with a presumption of good will on both sides, the planning agency may be pleasantly surprised at finding one or more solutions readily available. A conflict-resolution approach and an attitude of compromise can be very helpful at this stage.
If face-to-face discussions between the agency and the consultant fail to produce a resolution, it may be helpful to involve a third party. There are two methods of doing so. In a mediation process, the third party is essentially a counselor and facilitator, attempting to help the parties to resolve the dispute themselves. In an arbitration process, the arbitrator or panel of arbitrators conduct a formal proceeding that is similar to a trial but usually simpler and almost always faster. The agreement will often specify whether mediation or arbitration is to be used in case of disputes. However, even in the absence of an advance agreement to do so, two parties to a dispute can always agree to submit it to arbitration or mediation. One of those two approaches is almost always a simpler and less costly solution than litigation. Whether it is a better one, the parties must determine for themselves. At their best, mediation and arbitration can lead to amicable resolutions of complex disputes. On the other hand, mediation may lead nowhere, and arbitration may lead to a result that makes one party unhappy and wishing that it had gone to court.
Finally, if the parties to the dispute attempt mediation without success and do not agree to arbitration, litigation may be the only means of settling the dispute. Three basic types of relief can be sought in litigation: damages, restitution, and specific performance. To sue for damages, the agency must show how it had been damaged by the breach of contract. Planning agencies should understand, however, that it is very difficult to estimate the damage caused by advice not given, a report of poor quality, or a needed innovation never proposed. Alternatively, the agency may sue for restitution. In such an action, the agency asks the court to terminate the consultant relationship in a manner that will restore the agency's position to the point prior to entering into the consulting agreement. Thus, instead of asking for damages, the agency asks for a restoration of expenses incurred in time, money, and materials. A third remedy sometimes sought in contract disputes is that of "specific performance." Under this remedy, the agency asks the court to order the consultant to carry out and perform the services according to the time line, quality criteria, and performance guidelines specified in the agreement. It is unrealistic to expect a court to award specific performance of a professional services agreement. That would be akin to a court ordering a partnership to continue, or denying a divorce, and mandating that the parties to begin getting along. Although such an order may occasionally be issued and might even work under some circumstances, it runs counter to human nature and most judges will not do it. Once a relationship is in litigation, the element of trust that is essential to a marriage, a partnership, or a professional relationship has been lost; without that trust, the relationship cannot succeed.
Note that all of these remedies are also available to a consultant. As a practical matter, a consultant will almost always seek some form of compensation for services rendered. A consultant may seek such compensation under a variety of legal theories not relevant here.
If the parties amicably resolve a dispute, there may be a provision in the settlement about how the agency is to address any future references for the consultant. If there is no settlement or no such provision in the settlement agreement, agency personnel should be very cautious in discussing the consultant's performance with others. Defaming a person in his or her profession can end up in a lawsuit. Although factual statements are never considered defamatory, a statement that the consultant "did lousy work," "got fired," or "failed to meet deadlines" may or may not be strictly factual. A statement that "the agency's contract with that consultant resulted in litigation and I am not at liberty to discuss it" will deliver the basic message without defaming anyone. However, if the settlement agreement provides for some form of "neutral" references, it would be best to provide those in writing in order to document carefully that the agency has complied fully with the terms of the settlement agreement.
This material is a revised and edited excerpt from Selecting and Retaining a Planning Consultant: RFPs, RFQs, Contracts, and Project Management by Eric Damian Kelly, AICP. It is Planning Advisory Service Report No. 443, published by the American Planning Association, February 1993.