October 30, 1995
Subject: IBM Suggestion No. 921420144
Dear Ms. Kanin-Lovers:
I am in receipt of Ms. Peggy Freiberg’s letter dated September 29, 1995 (the "Letter", copy attached), regarding the outcome of her review of the subject suggestion which I submitted under the terms of the IBM Suggestion Plan (the "Plan"). I am extremely disappointed with Ms. Freiberg’s Letter. Not only was Ms. Freiberg’s Letter months late, but the response is inconsistent with the numerous conversations I had with her and her manager, Mr. Dick Lynch, regarding the evaluation documentation. Nothing of any substance has changed from my March 13, 1995, letter to Ms. Freiberg (copy attached) that summarized the significant communications between me, the IBM Suggestion Department and suggestion evaluators in support of my position that the suggestion has been implemented and, therefore, I am entitled to an award under the terms of the IBM Suggestion Plan in effect at the time the suggestion was submitted and accepted for evaluation by the IBM Suggestion Department. For some reason, Ms. Freiberg disregarded and ignored my March 13, 1995, letter when completing her Letter. Why?
Ms. Freiberg raised many issues in her Letter for rejecting the award of my suggestion which are not correct. In an effort to forestall having to pursue a costly and timely legal resolution to this matter, I am in good faith responding to the request in Ms. Freiberg’s Letter to provide additional information to refute her understanding of the evaluation of my suggestion. And rather than IBM continuing to delay a timely resolution to the award of my suggestion, I believe that it would be much more productive to address the larger issues leaving the others to be dealt with separately, if necessary.
Ms. Freiberg’s issues for rejecting the award of my suggestion fall into several broad categories: First, the suggestion did not provide the earliest documented statement of the problem and solution, and has not been implemented. Second, the suggestion is "predated". Third, the suggestion is an "idea on a subject periodically reexamined by management". Fourth, the suggestion deals with a subject in the "maturing process". Fifth, IBM Manager’s Manual reference 02-24, dated May 30, 1986, does not apply to the suggestion.
First, the suggestion did provide the earliest documented statement of the problem and solution, and has been implemented as evidenced by the creation of the IPSWOW and PROCURE purchasing information repositories. As a result of my suggestion and subsequent discussions with the evaluators, these two repositories were created. (Note: the PROCURE administrator, Ms. Susan Coviello, Corporate Procurement, was a participant in the IPSWOW development team.) In addition, both of these repositories were implemented with tools based technology (as I suggested) which has existed since the early 1980’s (ref: IBM Systems Journal, Vol. 26, No. 1, 1987).
Ms Freiberg asserts that the suggestion has not been implemented. The suggestion clearly recommends creating a repository for sharing IBM purchasing information. In addition, all of the proposed purchasing information I suggested be made available in the repository was clearly noted as examples only. Furthermore, my suggestion explicitly advocates not eliminating any existing purchasing communication channels (i.e., BCG, CORPDIR, PROFS notes, SCRIPT files).
It should also be noted that Mr. George Greenstein, then Director of Worldwide Procurement, personally rejected the implementation of my suggestion. Shortly thereafter, Mr. Greenstein was named General Manager, Integrated Procurement Solutions (IPS). The linkage between my suggestion, the suggestion rejections, subsequent implementation of IPSWOW and PROCURE, and both Corporate Purchasing and IPS being led by Mr. Greenstein at some point during the suggestion evaluation process is obvious.
Second, the suggestion is not "predated". Ms. Freiberg continues to take the position that Ms. Ann McGovern’s 1991 INFOVIEW discussions establishes a suggestion predate. By Plan definition, a "predate" must be under "active consideration". There was never any active consideration of implementing INFOVIEW by virtue of Ms. McGovern flatly rejecting it from the onset. Moreover, my telephone conversations with Ms. McGovern and her manager, Mr. David Horton, and additional repository documentation dated 1/19/93 and 3/15/93 and demo on 3/15/93 I provided clearly refutes any notion of a predate. It was my direct efforts that compelled Ms. McGovern, to concede there was no active consideration of a purchasing information repository and, therefore, no predate.
In addition, Ms. Freiberg indicates that insofar as my suggestion is that purchasing information be distributed electronically, it is predated by a number of actions that predate my suggestion (note: Ms. Freiberg’s issue deals with electronic distribution, not an information repository as suggested). As indicated earlier, my suggestion explicitly advocated not eliminating existing purchasing communication channels. Furthermore, none of the electronic communication vehicles identified in Ms. Freiberg’s Letter possess the fundamental two-way (i.e., user initiated requests from an information repository) electronic distribution of generic purchasing information concept I suggested. If this predate were really true, why then were IPSWOW and PROCURE implemented?
Third, the suggestion is not an "idea concerning periodic or routine matters for which established procedures are provided (housekeeping, maintenance and repair etc.) or on ideas on subjects periodically reexamined by management (i.e., staffing, compensation, pricing, IBM products, benefits)". Ms. Freiberg’s interpretation of this Plan provision is so broad, that every possible subject for a suggestion would at sometime be examined by management. That is why this provision is so very specific with respect to "periodic or routine matters for which established procedures are provided". My documentation clearly supports the position that Purchasing does not have established procedures for reviewing communications within the Purchasing community.
Fourth, the suggestion does not deal with a subject in the "maturing process". By Plan definition, "maturing" refers to aspects of the business that for a specified period of time are in a constant period of change such as "changes to informational systems being developed". Notwithstanding IBM’s gross failure to evaluate the suggestion in a reasonably timely manner (as more fully discussed below), "maturing" with respect to "changes to informational systems being developed" is not applicable since my suggestion was not a change to an informational system being developed, but rather was a suggestion to create a purchasing information repository.
Fifth, IBM Manager’s Manual reference 02-24, "IBM Suggestion Plan", dated May 30, 1986, does apply to the suggestion. MM 02-24 states: "A suggestion will remain eligible for an award even though the idea in the suggestion is implemented without the knowledge of the existence of the suggestion". In accordance with IBM Manager’s Manual reference 01-01, "Introduction and Instructions", dated March 20, 1987, reference 02-24 is clearly intended to provide additional clarification and understanding of the terms and application of the Plan and is, therefore, collateral with the provisions of the Plan which I have always relied on. (Note: I was an IBM manager prior to the submission of the suggestion.) I even have a PROFS note from Mr. Skip Karl dated 3/18/94 stating that "If management implements a solution of a suggestion and is unaware of the existence of the suggestion, then that suggestion is eligible for an award". Therefore, Ms. Freiberg’s assertion that IPS was not aware of the existence of my suggestion when IPSWOW was developed and, therefore, I am ineligible for an award is a moot point.
Furthermore, the "Evaluator’s Guide , IBM Suggestion Plan", "IBM Suggestion Plan, Your Ideas Have Value" and "MM 02-24" are interlinked by specific language contained in them. I also do not think I need to remind you that by operation of law if there is an inconsistency or ambiguity in Plan provisions (the "contract"), the inconsistency or ambiguity will be interpreted in favor of the party who did not author the contract.
Additional comments:
Without any regard for how the IBM Suggestion Department administered the evaluation of my suggestion, Ms. Freiberg restated in her Letter the paragraph in Mr. Lynch’s November 17, 1994, letter (note: Mr. Lynch advised me that Ms. Freiberg authored this letter) that in accordance with the terms of the Plan "Any decision of the company concerning the terms or administration of the Plan, including eligibility of suggestions and suggesters, and the amount of any awards shall be final, binding and conclusive, and is within its sole discretion". For this term to have any validity, recent court decisions have ruled that the obligation of "good faith and fair dealing" must be met. Suggestion program evaluators and administrators must be independent and exercise their discretion fairly and uniformly while maintaining accurate records of the reasons leading them to withhold an award. In the case of this suggestion, the obligation of "good faith and fair dealing" has not been met. The IBM Suggestion Department repeatedly failed to comply with numerous Plan provisions which resulted in a breach of contract. Several of these breaches include:
Not treating my suggestion as current business and responding within ten days of receipt;
Note: The suggestion was timely, practical and adoptable based on known technology and conditions at the time of submission as evidenced by the thousands of other functional information repositories in existence at the time the suggestion was submitted, some of which I identified in the suggestion. IBM’s gross failure to evaluate the suggestion in a reasonably timely manner cannot then be used by IBM as a basis for rejecting an award (i.e., the formation of IPS). This is clearly not "good faith and fair dealing". Furthermore, since implementation of the suggestion was timely, practical and adoptable based on known technology, IBM did not have to solve some other problem first before implementing my suggestion as Ms. Freiberg asserts in her Letter.
Not identifying and listing the dates of predating documentation and explaining what action has or is being taken;
Note: By Plan definition, "If predate documentation is not available, the evaluator must give a clear indication of sufficient verbal evidence and be certified by two levels of management". As my documentation clearly demonstrates, a "predate" never existed. From 11/13/92 through 5/18/94 (following my discussions with the suggestion evaluators), I had numerous PROFS discussions with Mr. George Krawiec, Skip Karl and Guy Allis of the IBM Suggestion Department regarding the supposed predate of the suggestion. After 1-1/2 years, Skip Karl PROFS’d me on 5/18/94 to state that the Suggestion Department’s only documentation in support of the predate is the evaluator’s 8/4/92 and 11/13/92 evaluation reports. I have numerous note from Suggestion Department management indicated that they took the evaluators word on this matter (verbal, no documentation). What is going on here? Didn’t anyone review my post 11/13/92 correspondence and documentation with the evaluators?
Not contacting me by phone or in person to resolve any questions with the second reevaluation request;
Note: Had this requirement been followed, this entire dispute could have been resolved years ago.
Not fully addressing the specific problem and solution;
Not preparing a non-adopt reply that is accurate and complete; and,
Note: First I am told that the suggestion is "predated". Then when I overcome this objection, I am told that the suggestion is "an idea on a subject periodically reexamined by management" and therefore ineligible for an award. When I overcome this objection, I am told that the suggestion "maturing" and therefore ineligible for an award. When I overcome this objection, I am told that the suggestion is "predated" all over again. What do you think a jury of my peers would conclude from all of this if I am forced to seek a legal solution to this matter? Please note that my position has not wavered, but IBM’s has on numerous occasions.
Not being definite and positive in its evaluations (i.e., "good faith and fair dealing").
Note: Ms. Freiberg and I agreed that due to the length of her investigation and so that there was no further delay in coming to a mutually agreeable close of this matter, she would contact me to discuss her findings before summarizing them in the Letter. Needless to say this was not done.
Once again, as indicated in my January 23, 1995, letter to Mr. Dick Lynch, there are many similarities with my suggestion and suggestion no. 872330049 evaluated April, 1990, and subsequently awarded February, 1992. I have spoken with the suggester (Mr. Bruce McCausland), evaluator (Mr. Dan Stout) and Plan managers (Mr. Jerry Michael and Mr. George Hansen) concerning all aspects of the idea, evaluation and award. Why has no one bothered to look at this yet?
Please note that as a former branch office Administrative Operations Manager responsible for the administration, including evaluation and review, of suggestions submitted under the Plan, I know the Plan extremely well. During my ten years at IBM, I have submitted over 100 suggestions (of which over 40 are still open or in dispute) and have received almost $100,000 in awards.
Moreover, a review of my suggestion records will reveal that the Suggestion Department consistently failed to evaluate my suggestions in accordance with the provisions of the Plan to the tune of a 60% plus error rate. Examples include: 1) Mr. G. Karl’s, Manager, IBM Ideas, letter to me dated July 25, 1994, re: suggestions 923040068, 74, 77 and 923090023. I still have not received my evaluations. 2) Suggestions 923040097 and 923090017 were rejected due to being "predated". To this date, no one has acknowledged that the "predate" indicated to reject these two suggestions is my suggestion. 3) Suggestions 923040049, 52, 53, 63, 72, 78, 97, 102; 923090017 were never evaluated. 4) Suggestions 923040100, 111 and 923090009-11 were not evaluated in accordance with the Plan. 5) Reevaluations for 923040082, 93, 94, 101, 105, 923090023, 24, 26, 27, 32 were never completed. And on and on and on...
If IBM forces me to pursue a legal remedy to obtain an award for the subject suggestion that I have rightfully earned, I can assure you that the suit will include not only the subject suggestion, but all of the disputed suggestions as well.
As the result of the information provided herein (all of which is on file with the IBM Suggestion Department and with Ms. Freiberg), should you be unable to conclude that I am eligible for an award, please contact me in writing by November 15, 1995, with your reasons. If I do not hear from you by this date, I will assume IBM is processing my award. It is my sincere interest to find a mutually agreeable resolution to this matter without having to pursue a timely and costly legal remedy.
Should there be any questions, please call me.
Very truly yours,
Keith S. Gibby