Uncapped limitation of liability
I work with a Company that supplies products and services (medical equipment, chemicals, diagnostic solutions, procurement management for life science companies etc) to both private parties and government entities. Our company standard is to cap limitation of liability based on estimated annual revenue from a particular customer contract. However, the Company has carved out exceptions to certain low value contracts and to contracts with state and federal entities to allow an unlimited cap on liability. While this seems like a practical approach, I am not too sure if this is the best approach as I see the risk/reward to be disproportionate. i.e. large value deals have a cap while small value deals can expose the company to an unlimited liability. Do any of you follow a similar approach within your organisation? What risk do you see if we are to continue with this approach since the third party liability cannot be capped anyways and circumstances where the company may be exposed to liability is limited. Thank you
Whats the best way to ensure all Contract Terms are being complied with ?
We are an IT service provider.I am researching on best way to provide reasonable assurance top management on Compliance status against Contract terms. This requires us to check if all Obligations,Milestones,Commitments etc are being met both at our end and any commitments from customer as promised in contract. Idea is to identify and fix deviations from contract terms , Reduce revenue leakage or Cost/Scope creeps. My strategy is (a) Review contracts before signing and call out Important terms to stakeholders (b) Assist proper handover of contract from Sales to Operations teams identify Owners to terms (c)Conduct Compliance Audits on Key accounts to assess compliance (d) Share lessons learnt back to Sales/Operations etc. (e) Use Self assessments by Operations where we can't reach them due to bandwidth issues Any Suggestions on how this can be made better ?
Outsourcing Agreement Template
Hello, Does anyone have an outsourcing agreement template? If so, please let me know. Thank you. Kind regards, Isis Bastet, CCMP
Document and Record Management: An Interesting Challenge to Contract Managers.
Greetings fellow members. I posted the below essay about Document and Record Management in the NCMA Forum, to which I am also a member as CPCM and CCCM. My initial thought is to share my opinion on the subject matter in this two forums, and then compile everybody's contributions in a revised version to be later shared among all of us. I hope the content is of your interest and add value to your roles. Best regards... ________ Document and Record Management: An Interesting Challenge to Contract Managers By Arnaldo Arcay, LL.M., CPCM, CCCM, and CCMAP https://www.linkedin.com/pulse/document-record-management-interesting-challenge-contract-arcay If there is something positive to extract from the corporate scandals that occurred during the first decade of 2000, is that today we have robust pillars (although no perfect ones) that support the corporate world in which business transactions are performed. The constant evolving audit and compliance regulations and industry standards are designed to avoid corporate collapses driven by fraud, corruption, and malpractice. What Contract Management is today has been driven by such need to regulate and make more transparent, efficient, and sustainable business transactions, resulting not only in protecting the interests of shareholders and stakeholders, but probably more importantly in protecting the interests of employees and their families. Therefore, contract managers play a fundamental role in today's corporate and government contracting behaviors, and this is the main reason why the profession is growing and becoming more competitive every year. Among the many functions and responsibilities contract managers have, there is one that is of sum importance and it is considered a challenge to many of us. 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. They represent or provide evidence of company's activities, commitments, decisions, and other management activities. Once we have understood the difference between documents and records, document management can be considered a systematic process to administer documents which enables them to be properly created (keeping all the different versions during the negotiation process, for example), categorized, organized, shared, and easily retrievable by other team members or internal stakeholders. Document management provides efficiency to the administration of the contract and also provides support to the organization or company after contract closeout in the event of an internal or external audit, claim or litigation. However, a document management system may not secure observance of compliance obligations related to record retention that are imposed by law, regulation, industry standard, or internal policy. 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.
Hello IACCM Forum, Does anyone have any information regarding the risks of poorly translated contracts? If so, please provide as much information as you can. Thank you. Kind regards, Isis
IACCM Contract Design Pattern Library has launched
Dear contract design innovators, in case you missed it, I just wanted to share the link to the IACCM Contract Design Pattern Library with you: https://contract-design.iaccm.com/ The Library is a new IACCM resource to inspire you and support you. It is a collection of guidelines, methods and real-life examples to help you create clearer and user-friendlier contracts. Design patterns are model solutions to recurrent problems, not ready-made templates. You need to pick and mix them depending on your contextual needs and the communication problems you want to address - and implement them yourself to fit your situation. The first release of the Library includes 12 patterns, plus some general introductory and guidance materials. It is an ongoing project and we will release more patterns and resources in the future, based on user needs and feedback. In addition to the support materials in the Library, you can learn more about the Library and how to use it by checking out the recording of the launch webinar: https://www.iaccm.com/resources/?id=10555&src=ContractDesignIntro2019 Feel free to reach out for questions/support/feedback! Stefania
Graphics changes in negotiated templates
Have you tried using simplification techniques (text and visuals) in templates that may be changed during negotiation? I successfully launched a simplified confidentiality agreement with better layout and a timeline graphic, but found that logistically it is difficult to change graphics in a template if the terms change. I now want to apply the same techniques to a more complex template that will be negotiated more. Any thoughts out there?
Precedence of Contract documents
Can anyone confirm if the order of precedence stated below is correct Letter of Acceptance Tender Particular condition of Contract General Condition of Contract Specifications Drawings Priced Bill of quantities Other relevant documents or reference material forming part of the contract
Government vs Private Contracting - Training
I am a commercial pilot with a Bachelors Degree in Aviation that decided not to fly, but rather work on the business/office side of aviation. Therefore, I tend to think like a pilot. In flying, when something changes, such as an avionics suite, you attend a "differences" training course. I bring this up because I am having a difficult time finding training that would meet my needs. I currently negotiate the sale of multi-million dollar executive jets and spend a majority of my time in the private sector. That said, a few times per year I am faced with responding to a government related RFP (be it in the USA or other nation). I am very comfortable dealing with corporations, high net worth individuals, etc, however I recognize that I lack experience when it comes to government contracting. Can anyone recommend a course, online or otherwise, that could help me further understand government related contracting? I've found courses/classes on Google, however it is hard to tell what would be valuable and what would be a waste of time & money. Any recommendations would be appreciated. Thank you, Jon
BID BOND (TENDER BOND) BEST PRACTICE
Bid Bond (Tender Bond) submission is one of the main requirements for most types of tenders, to assure the real interest of the bidders to participate on that bid. We seek to get the best practice and to share your experience for the below aspects related to the Bid Bond: - Amount of the Bid Bond (%)(For Turnkey projects also, for frame , unit rate scope ) - Time of verifying the Bid Bond, (With technical opening or with Commercial opening or when?) - How do you think about fixing a certain exact amount of BB for each Project; regardless of the bidders offers value. - Regarding the time of releasing the Bid Bonds for the winning bidders(After signing LOI/LOA/ Contract, after getting the Performance Bond, after expiry of the Contract, or When?) - Best practice for BB validity(6 month, 1 year, or open renewable).
Contracting for Agile template
Hi all, I am looking for few templates where IT delivery is done using Agile methodology. Do you have something which is shareable?