The build slips. The agency comes back to renegotiate scope. The marketing lead looks at the contract and finds a four page statement of work that says “deliver a website.”
This is a problem. The fix is to make sure it doesn’t happen.
The agency wrote thirty pages. Use them.
In the RFP response, the agency answered forty one questions with word limits. They described their methodology. They named the team. They quoted the price. They committed to a timeline. They described their warranty terms. They specified the CMS. They detailed the integrations.
In the contract that follows the RFP, most agencies will try to attach their own statement of work. The agency SoW will be shorter than the RFP response, less specific and worded in their favour. If you sign that, you’ve replaced thirty pages of specific commitments the agency made under competitive conditions with four pages of generic commitments the agency drafted under no pressure at all.
The fix is to attach the original RFP response to the contract as a contractual document. Word it so that any conflict between the SoW and the RFP response is resolved in favour of whichever document is more specific to the issue at hand, with the RFP response taking precedence on questions of scope.
The agency wrote the words. The agency can defend them. That’s the point.
What you get out of attaching the response
Three things, all of which matter when the build hits a difficult patch.
First, the warranty and SLA terms become enforceable. If the agency response said critical bugs get fixed within eight hours and major bugs within sixteen, that’s what you can hold them to. If the agency response said the post launch warranty period is ninety days, that’s what they owe you. If the agency response said references are available, you can call those references and ask them how their build went.
Second, the budget breakdown becomes the line item structure for invoices. If the agency response itemised discovery at £10k, design at £20k, development at £50k and so on, that’s the structure you can ask them to invoice against. If they overrun on one line, you can see exactly where. If they want to move budget between lines, they have to ask.
Third, the scope becomes documented. If the agency response said they’d integrate with MS Dynamics, Salesforce, MailChimp, Passle and Demandbase, all five integrations are in scope. If during the build the agency suggests Demandbase is “out of scope,” you have the page reference for the conversation.
Where it gets argued
Agencies will sometimes push back on attaching the response. The pushback usually takes one of three forms.
The response was “indicative” or “subject to discovery.” Fine. Attach it anyway, with a clause that says the agency may propose specific variations to the response with the firm’s written consent during discovery. The default position is the response. Variations require consent.
The response is “out of date” by the time the contract is signed. Also fine. The agency can submit an updated response during the contract negotiation period, which gets attached in place of the original. The point isn’t the specific version. The point is that there’s an attached document with the agency’s commitments in it.
The contract template “doesn’t work that way.” This one is interesting. Some agencies have standard contracts that don’t accommodate attached responses. The negotiation is whether the agency’s template wins or the firm’s template wins. The firm has more leverage than it thinks, especially in the days after the agency has been told they’ve won.
What the conversation looks like with in-house legal
In-house legal teams at law firms are usually receptive to this approach. The structure mirrors how the firm itself contracts with its own clients. Specific scope. Specific deliverables. Specific terms. Anything else is by exception, with consent.
The conversation that doesn’t work is “we’d like the agency to be flexible.” Flexibility is what causes the scope creep. The contract should accommodate scope changes through a defined process, not by leaving the scope vague in the first place.
The cost of not doing it
The cost of attaching the response is a few hours of legal review and a sharper negotiation phase. The cost of not attaching it is paid over the life of the build, in change orders, scope arguments and partner meetings where the marketing lead has to explain why the agency is asking for more money to deliver something the firm thought it had already paid for.
Pay the few hours. Sign the contract with the response attached. The build will go better.