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IACCM - International Association for Contract & Commercial Management Contracting Excellence Magazine
 

Contracting Excellence Magazine - Apr 2011

 
 

 

Does Contracting Have A Future?

 
The networked world is causing a revolution in the way we acquire knowledge and information, in the way that relationships are formed and in the way that work gets done. Since contracts and 'terms and conditions' are a direct reflection of those relationships and the nature of the work we do for each other, they cannot possibly be immune from the impact of these changes.
 
 
The networked world is causing a revolution in the way we acquire knowledge and information, in the way that relationships are formed and in the way that work gets done. Since contracts and 'terms and conditions' are a direct reflection of those relationships and the nature of the work we do for each other, they cannot possibly be immune from the impact of these changes.

We have already observed significant innovation in the way contracts are formed and delivered. Examples include the 'click-wrap' agreement, or the use of ecommerce in the form of auction software or invoicing. Document exchange and redlining are typically undertaken by electronic means, as is storage and retention. Electronic signatures are steadily becoming the norm. Most negotiations today are 'virtual' rather than physical.

Yet these shifts are merely superficial when compared to the more radical impacts on working practices and - perhaps - the extent of need for contracts at all.

My colleague Katherine Kawamoto recently attended a presentation by the leader of an association for sales people. He spoke of the remarkable shift that is taking place in the sale of goods and services and how the sales workforce will be decimated by technology. Traditional selling was about content delivery - gaining share of hearts and minds. Today, that role is increasingly fulfilled by the internet and through interfaces such as websites or 'apps'. Market winners are those who have superior content and better, more compelling methods for its delivery.

So if traditional Sales people disappear, what does that mean for contract and negotiation specialists, or for Procurement? Why wouldn't our content also be delivered by electronic means?

And the debate goes further, because much contracting and negotiation today is driven by offering complexity. Yet as The Economist recently reported, many of today's production processes will be transformed through self-service automation, allowing customers to download designs and drive their own manufacturing. In such a world, the allocation and management of risk will change fundamentally - and eliminate much of the debate that surrounds the contract.

A further influence will be regulation and the development of rules and practices that sit outside today's legal systems. For many of us, the growth of international trade has driven an increased need for contracts and commercial expertise. Crossing cultural, linguistic, legal and ethical boundaries has obliged us to undertake careful assessment and management of risks. Yet this too is changing - not least because such uncertainties place heavy costs on business transactions. Examples of the change are all around us, as we see increasing international regulation and also projects such as the UNCITRAL work to develop new on-line dispute resolution mechanisms that would sit outside traditional legal recourse, or the EU initiative to create standard forms of cross-border contract.

Those in the world of contracting will not be immune from this content-driven world. Roadblocks will not be tolerated - and for many, traditional contracting process and practice will be seen as either a roadblock, or as something increasingly irrelevant to modern commerce.

This article is just a start to the debate we must have as a professional community. It has drawn on just a few of the ideas and trends that are affecting us and the nature of our work. Over the coming months, we will stage events, discussion groups and interviews to develop a roadmap and to ensure that the IACCM community is seen as offering a pathway to the future. 

If you are interested in this debate, or have comments to make, please send them to tcummins@iaccm.com or kkawamoto@iaccm.com

 
 


 

Collaborative Contracting - Getting Off To A Good Start

 
The negotiation stage of a long term and/or high value contract is a critical stage – just as is the take-off stage of a long haul flight, the point of no return! It creates the baseline for the deal; it kicks off the relationship between the contracting parties; it determines whether value for money is achieved; it defines the contracted deliverables; and once the contract is signed there is no way out without cost. In fact, it is such a critical stage that, until recently, no or very little attention has been paid to the other stages in the contracting life-cycle, such as compliance management and exit management. But the attention the negotiation stage has received was the wrong type of attention: it was the attention of the old-style procurement-related communities, communities which have traditionally and intuitively adopted an adversarial approach to negotiations. Ian Deeks, Ten Square Limited
 
 

13 April 2011

The negotiation stage of a long term and/or high value contract is a critical stage – just as is the take-off stage of a long haul flight, the point of no return! It creates the baseline for the deal; it kicks off the relationship between the contracting parties; it determines whether value for money is achieved; it defines the contracted deliverables; and once the contract is signed there is no way out without cost. In fact, it is such a critical stage that, until recently, no or very little attention has been paid to the other stages in the contracting life-cycle, such as compliance management and exit management. But the attention the negotiation stage has received was the wrong type of attention: it was the attention of the old-style procurement-related communities, communities which have traditionally and intuitively adopted an adversarial approach to negotiations.

Today’s long term and/or high value contracts require a different approach if they are to be truly successful (the old-style approach will continue to deliver contracts, without any doubt, but they will not be truly successful). This new approach is called collaborative contracting.

But what is collaborative contracting? As the name suggests, it is the creation of a contract by the parties working together in a collaborative style, each understanding and agreeing the other’s requirements. This is contrary to the old approach where often one party would set the contractual landscape and then take an inflexible approach in negotiations. This latter approach is not solely the domain of public sector customers in a competitive procurement; the approach is also the domain of some dominant suppliers.

So how do you contract collaboratively? The first thing to bear in mind is that it “takes two to tango”: neither the supplier alone nor the customer alone can achieve it. Both parties need to commit to working in collaboration and then to deliver, and be seen to deliver, on this commitment. In short, the parties need to create a trust between themselves and, more importantly, to maintain this trust. This trust creation and maintenance is however counter-intuitive to many involved in contract negotiation and so new and strong leadership is required to set the scene and, no doubt, to “bang heads” when this becomes necessary. What about using an “independent deal broker”? More on this later.

The second critical thing is for the parties to identify their real requirements and to share these with each other. By real requirements I mean what is really needed, rather than “wouldn’t it be nice to get the customer / supplier to take this risk”-type requirements. This task is not an easy one and, historically, it has not been uncommon to see customers define their requirements as part of the competitive procurement process! But the task delivers value: it focuses attention on what is really required, and therefore worth paying good money for, rather than allowing an over-engineered requirements definition, which includes requirements which are not worth paying for. And when I talk of “requirements”, I am not restricting my thoughts to service / product requirements in the case of a customer, or financial requirements in the case of a supplier: I am talking about “whole deal” requirements, down to the “which party will bear the force majeure risk” level of detail.

The understanding of each other’s requirements can also be difficult, often because they appear to be in conflict. However, once customers become mature enough to accept that suppliers need to make a profit, and once suppliers become mature enough to accept that their prices need to reflect value for money to customers, this apparent conflict will disappear. A detailed understanding of each other’s requirements is critical, because empathy with the requirements and ultimately agreement of these requirements are dependent upon this understanding and are, in fact, small logical steps beyond understanding. This is not to trivialise the joint agreement of requirements and strong and mature leadership by both parties will be required to achieve this agreement.

So, if that is collaborative contracting, what does it deliver beyond what traditional contracting can deliver? The whole answer depends upon the specifics, but in generic terms some of the incremental benefits are:
 

·        Rather than starting with a bucket-load of random requirements and negotiating to a sensible position, collaborative contracting makes for shorter negotiation cycles and, therefore, lower costs of negotiation. The shorter negotiation cycle also means that the contract benefits are realised earlier, for both parties.

·        Collaborative contracting focuses attention on the real requirements, which means that customers only pay for what they really need (and conversely, suppliers are only paid to the extent that they can deliver real added value) and thereby value for money is achieved.

·        The approach also sets the stage for a collaborative post-contract stage. Much has already been written on how beneficial this is in the case of long term and/or high value contracts from the point of view of achieving genuine deal success.

·        By focusing on what each party really requires in order to improve its business, collaborative contracting results in the parties enhancing the overall “business benefit pie”, rather than fighting over how the existing pie is to be carved up.

·        The effort involved in understanding and agreeing each other’s requirements, focuses attention on optimising the deal, rather than optimising the position of the customer or the supplier.

Now, remember the question about using an “independent deal broker”? With all the benefits to be had from adopting collaborative contracting, from both parties’ perspectives, and with the difficulties involved in implementing this new approach (because it is currently counter-intuitive to many), would it not be worth the parties jointly funding an “independent deal broker” to keep collaborative contracting on track?

Ian Deeks, Ten Square Limited

 
 


 

New IACCM Employee - Debi Hadrill

 
We welcome Debi Hadrill to the IACCM fold as our latest recruit.  Debi’s role will be to support  our managed learning and professional development offerings, as well as leading several research projects, and helping out generally with the groundwork to enable us to grow managed learning sales.
 
 

We welcome Debi Hadrill to the IACCM fold as our latest recruit.  Debi’s role will be to support  our managed learning and professional development offerings, as well as leading several research projects, and helping out generally with the groundwork to enable us to grow managed learning sales.

Debi comes to us from Invensys Rail, where she was a Project Buyer within the Project Delivery Section. During her time there she worked on one of the largest re-signaling contracts in the world (London Underground) and more recently worked on one of their overseas projects for a customer in Taiwan.

Debi lives in Devizes in Wiltshire in UK, a very green and pleasant part of the country. Debi is looking forward to meeting IACCM members and helping them to achieve their goals. So I hope you’ll  take the opportunity to drop her a line to say hello, and to meet up with her whenever you can.

Paul Mallory, IACCM

...

' a fantastic opportunity arose to join the team at IACCM.  The idea of working for a dynamic, fast growing company with a personable team very much appealed to me after many years at large global organisations. IACCM discusses latest topics and best practices with Experts from a global perspective in the fields of Contract & Commercial Management.  This is an excellent platform for absorbing and understanding today's issues and practices  - and I am confident that it will ensure my personal growth. This role is new and so offers lots of scope for development and imagination.  My main aim will be to support the team in providing the excellent learning platform and service already in existence within IACCM. Working with my colleagues, there will be many opportunities to create and manage development and growth and I am very much looking forward to the challenge ! '

Debi Hadrill


 
 


 

Media Release: Alliance Contracting Excellence Awards 2011 Finalists Unveiled

 
Sydney. Australia (11 April 2011) – IQPC’s Alliance Contracting Excellence Awards (ACE Awards), Australia’s most established awards recognising excellence in alliancing partnerships, unveiled its 2011 finalists today. The eight finalists will gather at the ACE Awards ceremony on the 17th May, where winners will be revealed by a panel of high profile judges, including representatives from Melbourne Water, VicRoads and State Water Corporation.
 
 

Sydney. Australia (11 April 2011) – IQPC’s Alliance Contracting Excellence Awards (ACE Awards), Australia’s most established awards recognising excellence in alliancing partnerships, unveiled its 2011 finalists today.

The eight finalists will gather at the ACE Awards ceremony on the 17th May, where winners will be revealed by a panel of high profile judges, including representatives from Melbourne Water, VicRoads and State Water Corporation.

The following alliances were selected as the finalists for the ACE Awards 2011:

• Bulk Water Alliance – Googong Dam Spillway Remediation
• Future Grid Alliance
• The Horizon Alliance - Darra to Springfield Transport Corridor - Stage 1
• Networks Alliance
• Northern Expressway South Australia
• Springvale Road Rail Alliance
• SouthernGateway Alliance – Mandurah Entrance Road
• Wyaralong Dam Alliance

Jacqueline Bran, Director of Alliance Contracting IQ, said that the “ACE Awards finalists all demonstrate success in key areas within alliancing projects, including value for money, outstanding performance, and ultimately forming successful partnerships.”

Ms. Bran further congratulated all finalists, noting that the event gives them the opportunity to showcase their work and be recognised by their colleagues in the industry, government representatives, sponsors and clients.

The ACE Awards forms part of the IQPC’s Collaborative Contracting Summit, to be held on 16th- 18th May 2011 in Sydney. To book your place at the ACE Awards, or for more information about this event, please visit the event website, www.collaborativecontracting.com.au

Media Contacts

Jacqueline Bran
Alliance IQ Director
02 9229 1065
Jacqueline.Bran@iqpc.com.au

Arthur Chan
Online Communications Manager
02 9229 1092
Arthur.Chan@iqpc.com.au

 
 


 

The Traditional Way Of Creating A Contract-Copying And Pasting From A Word Document-Has Three Major Shortcomings:

 
If you’re doing anything other than changing a few basic details, it’s inefficient and slow. It can result in the drafter trying to make the new transaction fit the precedent contract rather than the other way around. It results in drafters regurgitating the dysfunctional legalese of traditional contract drafting. ... Kenneth A. Adams, Koncision Contract Automation
 
 

The traditional way of creating a contract—copying and pasting from a Word document—has three major shortcomings:

  • If you’re doing anything other than changing a few basic details, it’s inefficient and slow.
  • It can result in the drafter trying to make the new transaction fit the precedent contract rather than the other way around.
  • It results in drafters regurgitating the dysfunctional legalese of traditional contract drafting.

The antidote is to automate the process of creating contracts. That’s what an increasing number of organizations are doing. But even major companies can find challenging the process of loading their contract language into a document-assembly system. And most organizations won’t have a sufficient volume to warrant creating a system of their own.

But with document assembly, you can achieve major economies of scale. A lawyer adds value by specifying the deal terms for a given transaction, but coming up with the language to articulate those deal terms should be a commodity task. And it would make sense if lawyers everywhere were to use the same language to articulate the same deal terms. So if a vendor were to make available a library of document-assembly templates of business contracts, that would allow organizations that routinely create those kinds of contracts to achieve significant efficiencies.

But in order to be plausible, such a vendor would have to not only produce templates of the highest quality, it would also have to be seen to be trustworthy.

That’s where Koncision comes in. As our document-assembly platform we use ContractExpress.com, the “cloud” version of the market-leading document-assembly software. We use contract language that complies with the guidelines contained in my book A Manual of Style for Contract Drafting, which is in widespread use throughout the legal profession and remains the only comprehensive guide to the building blocks of contract language. And the substance of our templates is based on extensive research and consultation with experienced practitioners. So when it comes to our technology and our command of contract language, no one matches our credentials.

Our first product is a template confidentiality agreement (or NDA) for use in the U.S. market. (An international version will follow later this year.) Our NDA template can be used to create very quickly any kind of NDA for any kind of circumstance. Use it and you’ll be creating a contract that is tailored to your needs and is clear and concise. A Koncision NDA will likely be far superior to anything you could cobble together from traditional sources.

And our questionnaire, with its practical guidance, might encourage drafters to focus on the deal as a whole, rather than fixating on provisions addressing what happens if the deal fails.

Who should subscribe to Koncision? Any organization for whom NDAs represent a nuisance. If you find yourself creating even just two NDAs a month, an annual subscription to use Koncision’s template would pay for itself. If instead of doing a straightforward cost-benefit analysis you opt for the inertia of business-as-usual, you may well be missing out on a simple way to save time, become more competitive, and reduce your risk.

If an organization would like to use Koncision’s template but would like to customize it further, or would like to install it on its own ContractExpress system, it could make use of our “Koncision Customized” service.

Kenneth A. Adams

Cell: (516) 318-6956

Email: kadams@koncision.com

Website: www.koncision.com

 
 

The Key Components For Successful Contract Management

 
If you were asked to identify the activities that a company (of any size) needs for it to do business, then why is it that functions such as accounting, sales, marketing, IT and many others would all immediately come to mind, but contract management would rarely feature?  Yet whether you are a large, medium or small enterprise, involved in manufacturing, services, construction, utilities, health care or almost any other industry you will at some time use contracts; all of which need to be planned, awarded and managed.  More and more companies are focusing on what they do best and buying-in goods and services that can be provided by outside sources quicker, at lower cost and better quality.  However, the methods used to acquire goods and services at the best price and under the best terms needs to follow a structured process with careful planning and managed by experienced people.  Yes, this does require investment from your company – and not just financial – but the cost of not doing it can far outweigh the cost of doing it right.  This paper tries to help you identify some of the aspects you need to consider and some of the best practices to adopt to make contract management as normal a business activity as any of the more traditional business processes. Philip Holt, ESI International
 
 

By Philip Holt

INTRODUCTION

If you were asked to identify the activities that a company (of any size) needs for it to do business, then why is it that functions such as accounting, sales, marketing, IT and many others would all immediately come to mind, but contract management would rarely feature?  Yet whether you are a large, medium or small enterprise, involved in manufacturing, services, construction, utilities, health care or almost any other industry you will at some time use contracts; all of which need to be planned, awarded and managed.  More and more companies are focusing on what they do best and buying-in goods and services that can be provided by outside sources quicker, at lower cost and better quality.  However, the methods used to acquire goods and services at the best price and under the best terms needs to follow a structured process with careful planning and managed by experienced people.  Yes, this does require investment from your company – and not just financial – but the cost of not doing it can far outweigh the cost of doing it right.  This paper tries to help you identify some of the aspects you need to consider and some of the best practices to adopt to make contract management as normal a business activity as any of the more traditional business processes.

WHY BOTHER?

One of the most obvious reasons why contract management is important is that in the EU it is a legal requirement that you must use a formal and open tendering process for all public sector contracts that exceed certain thresholds, which can be as low as €80k.  Even if you are a private company and so not obliged to comply with the EU contracting process (known as the “OJEU process” from the Official Journal of the European Union) it is a good process to adopt and includes many best practices.  A good process will help you undertake the three main phases of contract management, namely: planning the award of contracts; awarding the contract to the right supplier (or win it if you are a seller); and managing the ongoing delivery/supply.  It will deliver financial savings and manage risk better than many other business activities.

Apart from any legal obligation, there are many other reasons why you should be interested in developing a good contract management process.  Most companies are under several external pressures[1], including costs, globalisation, compliance and risk.  These translate into companies seeking to reduce costs, to be able to satisfy global or local business requirements quickly by having more standard and centralised contract processes, to comply with laws and regulations by having documented and transparent business processes and to manage risk better.  Many people see the most important reasons for contract management are to ensure compliance with legal requirements and terms and conditions and monitoring the deliverables.

Without contract management, companies run risks that range from being forced to close due to breaking the law, to struggling on with high costs due to inefficient contract processes.  The net result is that a company with poor contract management is a weakened company … and we all know what happens to the weak in the business world.

OK, so if you now accept that you should at least take more interest in contract management, what exactly should you do?  We will now look at the key activities and some of the best practices.

You need to start by building-up your contract management expertise by developing a team of specialists, some of whom should be organised in a centralised team.  The contract management team should have a mix of hard and soft skills.  They need factual knowledge of contracting such as planning and contract writing, but they also need the softer skills such as those used in negotiating.  After all, contracts are made by and between people, and the ability to interact and work with all sorts of people is important.  Many successful contract management teams follow project management processes and adopt project management disciplines.  This results in a multi-disciplinary team that pulls in specialists as and when they needed, all controlled by a project manager who has the ability to always keep an eye on the ‘big picture’ and the overall aims, whilst homing in to detailed issues because inevitably the devil is often in the detail.

The question of how contract management expertise should be organised remains unanswered.  Bearing Point’s European survey “Contract Management 2010” found that many enterprises are dissatisfied with their present organisation and processes, but it is surprising to see that the results of their survey show that fully centralised contract management teams are rare.  They found that although a central organisation is strongly favoured for many contract related processes, only 9% of enterprises today regulate all contract management-related tasks centrally.  This may be because contracts generally consist of two parts.  Part of a contract will adopt a corporate standard that defines how contracts should be written in style and format. It contains corporate information and also includes standard terms and conditions.  There is also a project-specific part that covers the detailed statements of work or specifications of what is being bought/sold.  These are often included as a number of appendices to the standard contract and in many ways are the most important part of a contract.  So maybe the best organisation is a hybrid contract management structure which has a centralised team that provides contract templates, standard terms and conditions and holds all the contracts centrally.  This central team could be staffed by specialist project managers who pull in the necessary technical experts who define what is required in great detail, plus the necessary legal expertise, from several different parts of the organisation.

IT tools can certainly help, but there is not one universal tool.  Some of the more important IT tools are project management and office software, easy and fast retrieval of documents, together with complete, structured, secure, central filing that allows access to all related documents and information.  Such tools are essential throughout the contract life cycle as one of the main tasks of contract management after the contract is signed is to monitor compliance both with the regulations and contracted deliverables.

Many experts, including those reported in Bearing Point’s survey, recommend the following best practices:

Management support: this is perhaps the most important best practice.  The highest levels of management need to be clear that contracts are important and to implement an organisation that reflects that view.  Without this, contracts are doomed to wallow in the backwater activities of your organisation where at best they will frequently raise the levels of risk and incur unnecessary costs for your organisation.

A further good practice is to have a simple and clear contract management process that:

·        Defines and reminds everyone of the objectives; not only of what is to be acquired but also the reason for acquiring it in the first place.

·        Encourages communication between stakeholders (internal users and potential suppliers).

·        Is aware of, and complies with, all the appropriate business regulations, whether they are internal corporate guidelines or external laws.

·        Recognises that an efficient and rigorous change management process will be needed from the start.

·        Collates, stores, allows access and distributes related contract information, including previous contracts and contract intelligence such as competitor analyses, pricing and quality benchmarks.

·        Remains transparent and subject to analysis and audit at any time.

 

Although it is linked to management support, a contract management process must be run by experienced, pragmatic project professionals who have the authority and organisational status to define tasks, delegate work and get contributions from appropriate experts.

SUMMARY

Hopefully you will recognise that contracts and their management are very important, and becoming increasingly so.  The risks of getting it wrong are also increasing, as are the penalties for failure to comply.  And it is inescapable that to implement a good contract management process will incur management effort, cost and time.  But it is not rocket science.  With careful planning and experienced project professionals, companies can and do ensure that they get commercial advantage from having an efficient contract management process.  It ultimately saves time, money and reduces risk.  It can even be a differentiating factor that contributes to your company’s unique selling proposition.  After all, who wouldn’t like to buy from and sell to companies that have an efficient contracts department where contracts are straightforward, their needs are addressed, deadlines met and costs are managed; and above all, there are no surprises!

Philip Holt, an instructor with ESI International, has over 25 years’ experience in a wide variety of industries in both the public and private sectors, including IT, aviation, communications, energy and the non-profit arena. He has worked extensively in Europe, the United States, Canada, New Zealand and Jamaica.

Find out how ESI International can help organisations with their Contract Management requirements.  To learn more, please contact ESI at enquiries@esi-intl.comor +44(0)20 7017 7100 or www.esi-intl.co.uk/contract_management.

(c) 2011 Reprinted with permission by ESI International.



[1]See “Contract Management 2010” survey , section 3, by Bearing Point Management & Technology Consultants, London, UK

 
 


 

The State Of Sales Contract Management

 
 For many sales people, ‘getting to yes’ with the customer is only half the battle. Coping with the inefficiencies of their own organization can be almost as challenging – and this is frequently the case with the contracting process, where complicated rules and limited visibility can undermine Sales productivity and threaten business controls and financial performance. From an IACCM white paper report based on research undertaken in February / March 2011
 
 

 For many sales people, ‘getting to yes’ with the customer is only half the battle. Coping with the inefficiencies of their own organization can be almost as challenging – and this is frequently the case with the contracting process, where complicated rules and limited visibility can undermine Sales productivity and threaten business controls and financial performance.

At a time of heightened market uncertainty and increased business complexity, the negotiation and management of contracts gains increased attention. This report offers an insight to the state of sales contracting, drawing from input by more than 250 large corporations to explain the issues and describe the benefits that flow from process improvement. While the study provides a holistic overview, it has also yielded the first authoritative, independent insight to the value of defining and automating the contract management process and integrating with the customer relationship management (CRM) environment.

The independent research was led by the International Association for Contract and Commercial Management, with support from Selling Power, an association for sales and marketing professionals, and sponsorship by Ariba, the leading provider of collaborative business commerce solutions and salesforce.com, the foremost organization in enterprise cloud computing.

Among the findings are:

  • The rules and bureaucracy of the contracting process frequently present a barrier to closing business and weaknesses in on-going contract management are a source of lost revenue, missed opportunities and dissatisfied customers.
     
  • Only one third of sales people feel that the contracting process is effective at maximizing value, minimizing risk and assisting in the formation of strategic customer relationships.
     
  • For those charged with producing or managing contracts, Sales are poor at internal communication, lacking in relevant skills and guilty of setting unrealistic customer expectations, resulting in increased claims and eroding customer loyalty.
     
  • Integrated sales process automation has a consistently beneficial effect on the quality and integrity of the process, yielding substantial increases in the satisfaction of all internal business groups.

Please click here to view entire document.

 
 
 
 

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