The term "gotcha capitalism" pretty much sums it up for me.
Think about it from the other side of the fence. My experience was with weapon systems but to a certain extent it does apply to roads.
Because of THE RULES only fixed priced bids are acceptable.
As a contractor you are being asked to quote on the complete price for a new product build, even though you haven't designed, tested or built anything like it before. The price you quote needs to include the cost of upgrading a bunch of existing equipment to support your new product. You have no idea what the current state of the existing equipment is.
You have three choices:
- Quote a huge price that fairly covers every possible risk, and get told it's too expensive.
- Quote a small price and caveat the hell out of everything and get blamed when the initial conditions or complexity turns out to have been misunderstood or misrepresented.
- Go bankrupt.
You actually even see the same decision being made by normal employees at work. "Sure boss, I can do it in three weeks, as long as Dell delivers on time" would be an example of option (2) in action.
That both parties collude in this makes it no less wrong.
If something is specified in the contract, I find it difficult to see how this can be called "trickery", it is a magician telling you in advance that he may hide the coin up his sleeve.
You seem to think that each party should simply expect the other party to try to get as much from them as possible, through whatever misrepresentations and legal strategems they can get away with. Maybe this is normal in the areas where you work - I guess Jacques and I both come from backgrounds where this would be abnormal, and in fact disgusting behavior.
In my experience breaches on either side tend to get netted off fairly amicably. I might swap you a change request that you want for signing off a performance deviation I can't avoid, that kind of thing.
However the contract still serves a purpose - it provides the ground rules for that kind of trade. It does sometimes happen in bad faith (usually when the contract has a long and sticky history already) but most of the time it's just a more formalized version of goodwill. And that formality is necessary when you are talking about millions of dollars per change.
I do not "expect the other party to try to get as much from them as possible", I just expect that should one party fulfill the obligations of the contract, that the other party fulfills theirs.
The point of having a contract is that I can do business without invoking any kind of ethics or morality based on a background I presume to share with another party, or my own personal definition of "misrepresentation".
Or at least, I can advise the other party of my definitions and expectations in advance of them entering into the contract of their own free will.
Whole mafia of lawyers earns big bucks thanks to making these contracts even more convulted.
Outsmarting somebody by clever legalese isn't moral in my book.
As notauser correctly observed before I could beat him/her to it, this is virtually identical to the way most of our jobs work. Management asks for commitments of dates and times, and the mere fact that this is literally impossible does not stop them. I am not kidding or being metaphorical about that "impossible", I mean it literally. And they do have their reasons, but the mere fact they have reasons does not prevent the entire system from getting horrifically distorted as it builds itself around the impossible primitives, producing the nonsensical and nonfunctional results we are all familiar with.
The really, really, really key insight of Agile is to reduce the amount of impossibility built into the base of the system, and the smart Agile-using engineering team lead will take every advantage of that they can. Unfortunately, Agile really only works when all sides are capable of cooperating; it can survive internal-type rivalry, but where everyone is still in the same company. I can't imagine how to make Agile work in the face of hostile agents, which is what this contract situation is.