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Data Processing / Cybersecurity / Data Privacy

 
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IACCM Council Representatives
Network Leads

Data Processing / Cybersecurity / Data Privacy

We are pleased to have you on board of the Data Processing / Cybersecurity / Data Privacy Group on the IACCM portal, a space for discussion and knowledge sharing around the concepts of data processing, data privacy and cybersecurity in technology contracts.

This group welcomes contract professionals that want to share and/or build up their knowledge around the modern IT contracting and will focus on:

We welcome your suggestions and ideas on what we can put on this year’s agenda. Here’s what we have in mind as key points to start with:

 

Looking forward to hearing from you.

 

All the best,

 

Group Owner                                                      Network Lead

Pablo Cilota,                                              Daniela Badescu,

IACCM                                                        Oracle

 

 
 
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Document and record management policies and procedures represent a challenge to contract managers, and one particular reason derives from the fact that document and record management within a company is usually controlled by many functions with direct influence in its performance: IT, compliance, audit, and legal. Well defined and practiced document and record management policies and procedures can make the difference in being considered a transparent company or not; in protecting the company from adverse results during external audits or scrutiny, litigation, or regulatory procedures. Every contract manager must be fully aware of the importance of performing best practices in regards to document management and record management, despite the fact that whether the product or service being provided or the company's activities are regulated or not. In the event a company has not well defined document and/or record management systems or procedures, a well prepared contract manager should always implement, at least, the minimum standard for both practices in order to protect the company and its shareholders, stockholders, management, and last, but not least important, its employees. Even if the contract manager is sure that the company, product or service do not fall under a regulated regime (always consult with legal), one never knows when it may enter in the spectrum of a regulated activity or may be part in the future of a major litigation or external audit (a governmental agency having interest in the company, contract, product, or service). Within our contract management world, there is nothing more regulated than contracting with the Government (let's not forget about the commercial nuclear industry and the financial arena). Therefore, extra care shall be implemented by contract managers in observing FAR's provisions in regards to Contractor Record Retention policies and procedures (FAR Subpart 4.7). Yet, contract managers dealing with government contracts must even pay extra attention to the terms of the contract dealing with additional record retention obligations, particularly those dealing with retention periods which may be found in different Subparts of the FAR, or they have been amended or updated by competent Government Agencies or imposed by other applicable laws. Even more complicated could be calculating retention periods, especially during contract performance within multiple fiscal years. So contract managers must apply maximum care and diligence while dealing with government contracts. As part of the ugly truth, some companies and their management are mainly focused in how to be more efficient and productive. They may care more about how to be able to quickly have access to a document and abstracting its content (document management), and forget or pay less attention to the importance of keeping records properly (records management). Understanding the difference between document management and record management is central, but even more important is to understand how both management practices should complement each other. In other words, if your company, product or service is non-regulated, you may want to have a document management system that incorporates certain record management practices. However, if your company, products or services operate in a regulated regime (particularly if your company deals with the Government), your document management system should be incorporated into your record management system (or at least be compatible or be able to interact); but your company must have record management policies and procedures. The differences between documents and records are very simple, but many of us mix them up. Documents ('written, printed, or electronic matter that provides information or evidence'. Documents include physical and electronic data that support the existence of a contract or transaction) represent, express and support your company's daily business operations. Documents continuously evolve; they may change during a particular period. Since the moment a need is identified and the solicitation phase has started, until the contract's close-out phase, the documentation of this particular transaction or contract has been constantly evolving. In contrast, records ('evidence about the past, especially an account of an act or occurrence kept in writing or some other permanent form') do not evolve, they are final and simply represent unaltered recordings of a transaction or contract. 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Record management is mainly composed by completed documents, fully executed contracts and certain supporting documents as per the record retention policy implemented by the company as required by law, regulation, or industry standard. Record management is strictly related to archiving documents and contracts, and their subsequent disposal as per the respective record retention schedule. This record retention schedule or policy includes classification, storage, security, custodian, preservation (including certain original documents), retention period, and deletion or destruction criteria. Record management shall be the result of a well-defined policy and procedure implemented by a company, particularly by those operating in regulated environments. Government agencies, industry regulators, auditors, lenders, partners, vendors, and even the judiciary system, may request a company to disclose its record management policy or to warrant their existence and applicability. So, as many may realize, there are important differences between both document and record management systems, but the reality is that document management is an integral element of the record management system. Companies should avoid having conflicting document and record management systems, and on the contrary, companies should secure that they harmonically interact by being fully compatible. The market offers many software solutions for both management systems, and many offers management systems that include both. Document and record management must be strictly observed, applied, and enforced by contract managers. These management functions are fundamentally important not only to comply with the law, regulations, and applicable industry standards, but they are also fundamental to properly support the contract functions within an organization. It helps to keep record of the reasons behind, and the studies and analysis performed to back-up the acquisition needs, and those decisions made through the negotiation process that drove to the execution version of the contract. Proper document and record management support the company in the event of an internal or external audit, eDiscovery, claims by third party or even litigation. Therefore, contract managers play probably the most important role in securing proper administration and application of these two management functions. Contract managers must innovate and proactively apply document and record management standards in their companies where these management functions are inexistence, poorly developed, or simply not properly followed.

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