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

Contracting Excellence Magazine - Mar 2008


Leaders Take Note: The Time For Action Is NOW!

The latest IACCM talent and career surveys show that more than 80% of our community (Legal, Procurement and Contract / Commercial Management) like their job, but face significant frustrations or concerns - high among them uncertainties over career path, the lack of clarity in organizational roles and the feeling that functional leadership is weak or out of touch. And that means a shocking 69% of the community expect to stay in their current career path for 10 years or less - and 13% don't believe there is a career path to stay in!

The latest IACCM talent and career surveys show that more than 80% of our community like their job, but face significant frustrations or concerns - high among them uncertainties over career path, the lack of clarity in organizational roles and the feeling that functional leadership is weak or out of touch. And that means a shocking 69% of the community expect to stay in their current career path for 10 years or less - and 13% don't believe there is a career path to stay in! 

These findings suggest that today's talent crunch is poised to become a talent crisis, unless senior management steps up to the plate and takes action. But our research also shows the professionals themselves need to start thinking hard about the nature of the changes going on around them – and how they must adapt. And it is becoming increasingly obvious that resistance to technology is the potential break-through issue.

This article is the first of several, in which we will highlight the wide regional variations and the broad issues and opportunities that the research results have highlighted.

What is going wrong?
The survey shows that people enjoy the daily interactions of negotiation, problem-solving and their personal belief that they are adding value. But this day-to-day satisfaction is not mirrored in their sense of security or feeling that their role and contribution is appreciated. And for this, they blame their functional management.

Job Likes                                     
1.       Challenging Work              
2.       Negotiation
3.       Sense that I am positively
Influencing profitability                       
Such harsh judgment may not be entirely
fair. Senior management is struggling with
uncertainty, much of it the product of a
fast-evolving global business environment.
The issues highlighted by those in Contract
Management, Sourcing and Legal are
mirrored in other functional areas, such as Finance or Sales. They are the result of massive organizational change, shifts in market values and conditions, the emergence of new markets and competitors. But in the end, the task of senior management is to lead their people through such demanding times.

Survey respondents highlighted 'ability to demonstrate strategic value' as the key skill they must acquire for the future, closely followed by 'cost improvement / value analysis skills'. This should resonate with senior management, because this demonstration of value is the fundamental issue that confronts them - and which, based on IACCM observations, many are failing to tackle.

These times of dramatic change offer an unusual

        …. And Dislikes
1.       Lack of career path
2.       Poor management leadership / lack of clarity in roles & responsibilities
3.       Lack of appreciation
opportunity for true leaders to challenge the status quo, to establish a new position and status for themselves and their teams. But they do not achieve this through simply doing what they have always done - they must instead demonstrate an enthusiasm for change and innovation. And that demands communication skills, a readiness to challenge traditional roles and methods, and an appetite for risk. However, most importantly, they must show an appreciation for the revolutionary impacts of today's networked technologies. Unless we understand and adopt the tools that are transforming our world, we are inevitably destined to fall behind.

Careers are based on a sense of vision and mission. They attract talented young people, excited by the prospects of their potential contribution and achievements. Do we transmit that energy, that sense of excitement? Or do we appear to be an aging community, slow to change, reluctant to adopt the tools and systems offered by our 21st century networked economy?

Creating Energy

Management responds to facts, to data, to people who generate new insights and ideas.
Where are we in providing those insights? Are we generating data, capturing measurements, promoting ideas that will drive sustained improvement or competitive advantage?

To succeed in today's global networked economy, functional executives must stop allowing their teams to be victims of technology and instead become its masters. This is about more than just contract management software or e-sourcing tools (though they are part of the picture). It is about understanding the power that collaborative web-based tools can bring to your performance; it is about unleashing the knowledge and experience that is inherent to your team and to their daily contacts. It is also about understanding how to use technology to overcome the issues created by things like distance working, to make remote workers feel they are still part of a team and that management cares. 

And What About The Workers?

If we want to address the things we dislike, we are right to demand more of our management. They must address the need to redesign today's service delivery model; they must demonstrate a readiness for increased accountability; and they must recognize the fundamental need to adopt new technology. But this means that professionals must stop resisting those technologies. Because the truth is, many in our community are not comfortable with the new tools or methods; we do not like having to learn new ways; and we do not completely trust in our own ability to add more value. And recent examples have shown that the issue is not entirely about training or management support - it is a story of innate resistance and multiple excuses for why technology won't work or won't help. 

Many past generations and 'professions' have faced this challenge of new technologies. They have adapted and adopted - or they have fallen behind or disappeared. Without the underpin of automation, our community is destined to decline, another victim of change. Yet if we can rise to the challenge and make creative use of new tools and systems, we will without question overcome those issues of career path and lack of appreciation.

Perhaps most important, we will attract the new talent. Young people have no interest in joining a function of old people who insist on doing boring, repetitive tasks that could either be automated, or transformed through the data and business intelligence that automation delivers. The opportunity is there; are we ready to grasp it?

This issue of technology and its role for our community will feature in a series of seminars that start in April and will be held in Frankfurt (Germany), Paris (France) and London (UK). For me details or to register, click here. This topic will also be an important element in the agenda at our next conference, being held in Scottsdale, Arizona April 7th - 9th (www.iaccm.com/americas)


Don't miss the exciting range of IACCM events - conferences, seminars, webcasts and audio calls, covering every region of the world! Visit the Events Calendar at www.iaccm.com.




Job Opportunities: You Want To Work Overseas?

Building on the subject of career paths and options that featured in the previous article, IACCM Resourcing has highlighted the UK's "Highly Skilled Migrant Programme", which offers professionals from our community real opportunities to work in the UK. The points-based scheme also requires demonstration of English language capabilities, but is unlikely to prove a barrier to most members of IACCM.

Building on the subject of career paths and options that featured in the previous article, IACCM Resourcing has highlighted the UK's "Highly Skilled Migrant Programme", which offers professionals from our community real opportunities to work in the UK. The points-based scheme also requires demonstration of English language capabilities, but is unlikely to prove a barrier to most members of IACCM.

Contracts, Commercial, Legal and Procurement staff are all potentially covered by the programme (for those in the US, note the need to re-learn spelling!). It offers an initial 2 year visa.

Today's global markets certainly make a period of international experience both attractive and valuable. The jobs market for many in our community also remains relatively buoyant in the UK (though there are of course economic clouds on the horizon). IACCM data also shows salary levels are among the highest of any country (having first surpassed the US in 2005). But of course, it is important to understand that the cost of living - especially in London - is high.

Job roles are generally similar to those in many other regions, although the term "Commercial Manager" will not be familiar to many of our members. This role is typically broader than that of the traditional contracts manager; it generally demands a more holistic business role - which for many is of course very interesting and those with an MBA should find the requirements significantly more satisfying.

The good news for anyone interested is that the IACCM community is also well served by a much more focused set of recruitment companies in the UK. The contracts / commercial role is generally much better defined and recognized than in other markets. There are typically strong opportunities in many industry sectors, especially outsourcing, technology and software, defence and engineering.

Anyone who would like more information about this programme should contact info@iaccm.com.



Contract Management: The Opportunity For Change (Novartis Case Study)

A Case Study Featuring Novartis Pharmaceuticals   Novartis is a large and complex business – and operates in an industry that is undergoing rapid and far-reaching change. With so many issues competing for management focus, it is unusual for an area like contract management to receive attention. But there were visionaries at work in Novartis who understood that market conditions have made the contracting process increasingly significant – and that changes in this area could support and enable wider business improvements.
Novartis is a large and complex business – and operates in an industry that is undergoing rapid and far-reaching change. With so many issues competing for management focus, it is unusual for an area like contract management to receive attention. But there were visionaries at work in Novartis who understood that market conditions have made the contracting process increasingly significant – and that changes in this area could support and enable wider business improvements.
This article tells the story of contract management automation in the Pharmaceutical Division at Novartis.
The Pressures For Change
“We have felt the need for action for the last 3 to 4 years,” explains Subs Tripathy, Associate Director of Strategic Sourcing at Novartis Pharmaceuticals. “The compelling issues were visibility – knowing the contract was there and that we could find it – and speed – finding ways to better monitor and improve lead-times.”
 But then a new issue came over the horizon. “Risk and compliance all became ‘big deals’ – SOX, privacy, information security, corporate citizenship – suddenly we had a whole array of new, high-focus items on our agenda.”
Within Sourcing, the challenge was not just to impose the right obligations on the supply base, but then to find ways to manage compliance in complex areas like child labor, minimum wage and environmental concerns. “We had to form strategies and these rapidly showed how contracts and the contracting process are becoming more important and more complex,” explained Subs.
Another refreshing aspect of the work at Novartis is the fact that, while leadership may have come from Strategic Sourcing, the vision of need extended to both buy-side and sell-side contracts. So when the search for solutions began, it was with an enterprise view and an understanding that this initiative was also key to Managed Markets- a side of Pharma Business focused on sell-side contracts.
Understanding Scope
While the underlying needs were well understood, the project team was less sure about key aspects of functionality or scope. They had a variety of core applications, including ERP and spend management – and had the project been for buy-side only, they believe these might have offered viable solutions.
“We hoped we might find lessons externally,” comments Subs. “But we found very few companies thinking in terms of enterprise solutions, very few that could see the commonality in contracting across the business.”
The more the team investigated, the more they found high levels of consistency in business need and benefit for all contract and relationship types. “The common questions related to things like how do I manage, search, make good business decisions on the terms to use, undertake effective and timely review and approval. The contract templates may differ, but the needs and benefits are essentially the same.”
Another aspect of the project group’s research related to internal acceptance of the need for change. They knew that success would depend on not just readiness to adopt and use a new application, but also to undertake the process reengineering needed to deliver the target benefits. This led to a decision to limit initial scope to the US Pharmaceutical business, which has about $10 billion in sales revenue and an annual sourcing spend of around $2 billion.
“Our headquarters (in Switzerland) has different pressures on regulation and also – because so much of the business is relatively decentralized – has a different priority for opportunities, especially on the sell-side,” explains Subs. “Their focus has been to see contracts more in terms of transactional compliance, rather than portfolio management. Due to decentralization, the vision has been the same but the roadmap to implementation has been different. ”
Selecting A Solution
The team spent around 3 – 4 months in the selection process. Their research led to an understanding of certain key characteristics that would be essential for success. These included:
        Microsoft Word integration. “Ease of use is critical if you want to avoid internal resistance and push-back.”
        Searchability. “We had to do more than just be able to find contracts. The application had to enable searches for particular terms, words, exceptions, trends.”
        User interface. “Simplicity – importing and exporting agreements, handling buy or sell, fit to work flow and future changes.”
        Flexibility. “We wanted to avoid the costs and the complexity of customization, so the software must offer flexibility without the need for re-writes and modifications of code.”
Their work led to selection of Emptoris as their solution provider and the initial implementation will cover review and approval, drafting and a contract repository. Its focus is on simplifying the process, increasing productivity and ease of use. At this point (and again unusually for a Procurement-led project), the goal is not transactional compliance (i.e. ensuring that all transactions use the right contract). “That is definitely part of our vision,” comments Subs, “But the initial objective is to ensure enthusiastic user adoption. Without that, theories of better control and business improvement remain just that – theories.”
Next Steps
Implementation at Novartis has only just begun, but this project reveals a holistic approach to planning that unearthed some compelling reasons for contract management automation.
“Risk, productivity, compliance, the environment – there is a long list of items that are making contracting far more significant. Gaining control over both the contracts and their associated process is a growing business imperative,” concludes Subs.
“We know that the current application will not address all the issues, but it will give visibility to the continuing gaps and enable them to be addressed.”
Novartis understands that they are on a journey; with automation, they are at least equipped to navigate and increase the probability of successfully reaching their destination.
This article is based on an interview that was undertaken by IACCM in December 2007.

Export Classification: Bedrock of Export Management

The global marketplace, by definition, requires the exporting of goods, technology, and services from one country to one or more other countries. These transactions across borders are controlled by each country’s laws and regulations, making a patchwork quilt of rules that is as complex as your globalization strategy requires. This article explains why correct export classification has become the bedrock of a successful export management program.
The global marketplace, by definition, requires the exporting of goods, technology, and services from one country to one or more other countries. These transactions across borders are controlled by each country’s laws and regulations, making a patchwork quilt of rules that is as complex as your globalization strategy requires. 
For example, exporting from the United States requires knowledge and use of the export regulations published by the U.S. Departments of Commerce and State, as well as the Denied Persons List, the boycott list, and the UN embargo list. Some U.S. businesses must be familiar with regulations published by Alcohol, Tobacco, and Firearms as well.   If you are exporting from a member state of the European Union, you will have to follow the EU’s regulations for exporting commercial items and your individual country’s rules for matters not covered by the EU’s rules. The former Soviet Union countries have their own rules and this holds true all around the globe.
To make matters even more interesting, these rules apply when your workforce includes employees/subcontractors/outsource personnel/consultants with citizenship different from that of your country or your national employees while they are overseas.
And, how about that second-, third-, or fourth-tier vendor who has no idea that his product or technology is about to be exported? Does he know the export classification of the top-level system that will contain his part? Does he know the export classification of his part? If he does know, has he communicated this classification up the chain to the folks at the top of the procurement chain? Does your company have a process by which this information can be communicated to the right folks in the organization?
From all of this has emerged the concept of an Export Management System (EMS). Most managers of a company’s Globalization plans and projects believe that such a system begins with the problem of acquiring export licenses when they are needed. However, this view passes over the very bedrock of an EMS. I cannot say this strongly enough:
Export Classification is the first step and requires your full attention.
To most of us, this appears to be a mundane, almost clerical function.  Surely we can assign a clerk or a summer student to figure this out in a month or two. Clearly we don’t have to give this exercise its own budget line or schedule item.
But, what happens if the export classification is missing or wrong? You could be applying for—and holding up shipment for--a license when you do not need one. Or, you could be applying for a license from the Department of State when you really should be working with the much less restrictive Department of Commerce. Or—dare we suggest this?--you classify and export an item under the Department of Commerce when it is really controlled by the Department of State, and the Department of State would refuse the item an export license. Such misclassifications result in delays and, potentially, in costly fees and penalties.
These problems are magnified when your company modernizes and creates computerized data warehouses of your technical, manufacturing, and process information. How will you be able to allow access into that data warehouse by your vendors in other countries? Your foreign partners? Your foreign national employees? You will need to know what information they are allowed to see, and  you must be able to restrict their view accordingly. This requires accurate and timely export classification of the pertinent information in that data warehouse.
 And, what happens if you have automated your shipping process and an item arrives at the dock without an export classification? Any software-controlled system worth its salt will halt that shipment at the dock and keep it there until the item is export classified; a license is acquired, if needed; the shipping information is corrected; and the item is cleared to go. This is a “hidden” cost that can quickly become considerable, particularly if your company does a wide trade in spare and repair parts.
Correct export classification can help you avoid: delays in opening that new factory in another country because your manufacturing technology was incorrectly licensed; an inability to honor a partnership agreement with a foreign company because you cannot allow their employees into your data warehouse; or your foreign customers’ refusal to accept your product because you cannot ship spare parts to their country or to the countries of their customers (even though your top-level item can go!).
A major management problem in this arena is the failure to budget and schedule properly for export classification to be done. Please do not assume that your company has kept track of all of its export classification decisions, or that management of those decisions has been consistent over time. Export classifications need to be stored for continual use and for maintenance. Those pesky export regulations are not engraved in stone. Oh, no, they change over time! Political developments, technological changes, and economic ups and downs have their effect on these regulations and it is certainly possible that an item controlled today will not be controlled tomorrow – or vice versa. You may sell a commercial item with a required modification to any country’s military; the modified item moves from the Department of Commerce to the Department of State and now you need a license! 
The discipline of export classification requires analysis that includes technical, business, and regulatory conditions. A deep understanding of the pertinent export regulations must be coupled with an understanding of the technology to be exported and the use to which it will be put in order to determine the correct export classification. This sort of careful analysis—the first step in your export management process--requires intelligence and time, factors that then require consideration in your globalization budgets and schedules.
Who are the people who do this sort of thing? I would guess that export classification is not yet a task in the U.S. Department of Labor definitions of work. Nonetheless, it is a skill that is increasingly needed by companies large and small. Some companies require their technical experts to take on the task; others assume that their export licensing team can also handle the problem of classification. Or, you may be fortunate enough to have folks in your company who have had experience in export classification itself. And, there are subcontracting and outsourcing companies who are now beginning to add this skill to their repertoire of offerings.
Whatever your choice of solutions, please keep in mind that export classification is the bedrock of your export management program. It should be considered its own item in your planning of a project’s budget and schedule for a successful outcome.
Barbara Standley
Manager, International Trade Compliance
4745 N. 7th Street, Suite 200
Phoenix, AZ 85014
602-279-7788 (phone)

Negotiation: Four Seasons In One Deal...

In this article on negotiation, Paul Carter Hemlin, Founder of Contract Management Direct and based in the UK, provides some ideas over the ‘science’ of successful dealmaking and suggests an approach to planning.
I recently read an excellent article in the UK's 'Financial Times' by Mike Southon, author of the Beermat Entrepreneur. While discussing the characteristics of some salespeople and natural-born dealmakers, he used the metaphor of the four seasons as a way to describe the key stages in making a deal and arriving at a signed contract. As a veteran of numerous deals of all shapes, sizes and durations, I immediately warmed to this concept and have expanded it to suggest a brief, common sense approach for anyone planning to negotiate a deal.
I hope you noticed the deliberate use of “planning” in the above paragraph. For any negotiation to stand a chance of being a success, you need to work backwards from what you consider 'success' will look like (e.g. receipt of world class services within 6 months, 10% margin from provision of your services) and factor this desired outcome into your deal strategy. Again, the four seasons logic will assist you in understanding what you need to do and when you need to do it during your negotiations. None of this should be earth shattering news to anyone in the IACCM. However, my friend and fellow-IACCM Member Mark Darby, author of leading partnering book 'Alliance Brand' has a saying “... all this is common sense, but it's just not common execution” that I think yet again quite aptly applies.
A final warning before we start. This suggested approach relies on the Contract Manager being up to the task at hand. If he/she lacks experience, confidence or even possibly drive, then the four seasons approach is not for your organisation. The key principle is to achieve as much as possible in each distinct phase to reap the rewards and efficiencies in the next.
Staring with spring, Southon states that this is the time for “new and creative ideas often accompanied by optimism and enthusiasm” and he is right. You have to approach every deal with a positive mindset. This is the time for getting everyone’s ideas onto a flip-chart to see what can be done better, quicker, cheaper, more sustainably etc. We have all witnessed the catastrophic effects of changes halfway through a negotiation and the knock-on effect they have on the timescale to get the deal done, which let us not forget has a direct correlation to cost.   There is always a pressure in the early phase of any bargain to sit down with ‘the other side’. Its perceived to be tangible progress and may well keep you superiors happy, but it is not always the right time to do this, until you have ‘shaped’ the deal. You should not find yourself sat in your lawyer’s offices with ‘the other side’ at 10pm on Friday night thrashing out the finer points of your service level agreements at this stage of the deal. And if you do, you should consider going home.  On a beautiful early spring morning, there can be a temptation to plant new bulbs in the garden to give it some much needed colour after winter. But we all know what will happen if a heavy frost soon follows.
Moving into summer, there is more energy and this is the time to get your trading partners around a table. Now is the period for face to face discussions to put some deal principles on paper that you can refer to throughout the negotiation process, to ensure you both stay focused and on track. You can now start to progress the deal in more detail, with your contract managers making a start on the draft documents. Make sure you tend the right crops at this point and don’t get distracted by the early bloomers. Look after your acceptance criteria, scope of services, service levels and payment terms. The hardy perennials such as Limits of Liability and Indemnities, both of which are important (and retain their respective Top 2 positions for a third successive year in the IACCM’s insightful annual survey of The Top Ten Most Negotiated Terms in 2007) should not be your top priority just yet. Rest assured their time in the sun will come; indeed, how can one debate and agree these without a thorough prior understanding of the requirements and deliverables?
I agree with Southon, who says autumn is the time to bring the lawyers and accountants in, as the intellectual rigour is put into process. I have seen deals cost considerably more than they should because one side insisted that external legal counsel attend every negotiation from Day One. This was entirely unnecessary and caused the other party to reciprocate with man-to-man marking, insisting his equally expensive lawyers were also always in attendance. If you bring them in too soon it can cause a deal to lose its momentum and grind to a halt. The deal team will become frustrated and potentially resentful - and you need these guys onside all year round. I find there is a direct relationship between the quality of the Contract Manager on the deal and the timing the lawyers can be introduced to the proceedings.
The final season is of course winter, the due diligence is completed and the deal is done. The agreement you have been nurturing through the previous three seasons has developed into a signed and sealed contract, where one hopes the initial promises will soon become deliverables and reality.
As the philosopher George Santayana said “to be interested in the changing seasons is a happier state of mind than to be hopelessly in love with spring”.
 Paul Carter Hemlin
Mike’s article “Dealmakers are natural Stars” was published in the Weekend FT on 26/27 January 2008 and can be found at: http://www.ft.com/
The IACCM’s The Top Ten Most Negotiated Terms in 2007 can be found at:

From The Blogs

It is gratifying to see how often IACCM and its members are being cited by the bloggers and other media. Last year, we recorded more than 400 references, usually drawing on our research and commentaries or presentations. That's important - because it means people are taking notice of the important work you do and the role you perform. Here is on example - my "Pick of the Month" - from Jason Busch, on Spend Matters.

The Findings From IACCM's Top Negotiated Terms List Scare Me

A couple of weeks back, IACCM released their ranking of negotiated terms for 2007 (which also included a useful chart showing the trending of specific terms over the years). Over on Supply Excellence, Tim Minahan beat me to the punch by listing the top terms and sharing the news with his readers, so in this post, I thought it might be more useful to dig beyond the numbers. But first, I thought it might be useful to share a bit of analysis from the authors of the report. The top two negotiated terms from 2006, limitation of liability and indemnification, remained the same in this year's survey. But price increased a notch to the third most negotiated term. What's the net of this year's result? According to Tim Cummins and his colleagues at IACCM, "There are temporary 'blips' as major events drive sudden interest in particular clauses or approaches -- for example, Force Majeure in the aftermath of 9/11 or Payment Terms at the time of new revenue recognition legislation. But overall, the results indicate a continuing 'status quo', with the battle-lines firmly drawn and almost unchanging -- despite the pace of change in other parts of the business."

One of the reasons IACCM's research is quite useful is that it is global in scale. Compared with ISM, IACCM has significantly more global participation from members. This should dictate that many companies participating in the survey are engaged in global trade or cross border transactions. But why, in this case, especially given that 2007 really was a pinnacle year for global sourcing, are such areas as freight / shipping, security, product substitution and import/export regulations -- all areas that should be of significant interest to procurement organizations working with global suppliers -- at the bottom of the list (and are trending down, in some cases, based on a historical analysis of their rank)?

In my view, this finding suggests that many companies involved in global sourcing have been far too focused on the wrong set of issues from a negotiation and transaction perspective. And this is, in most cases, unit cost. But all of the negotiable areas I listed -- in addition to others such as performance bonds, jurisdiction, and assignment/transfer -- which are lower down on the list as well -- have just as important an impact on the total cost factoring in quality and risk of importing (or exporting) goods and services as do unit price and the other terms that come out on top of the rankings. This disconnect suggests to me that most companies would do well to think through the actual costs of global sourcing without over-romanticizing the short-term unit cost savings possibilities.

Am I off base here? I'm curious to get other perspectives on the subject. And thanks, Mr. Cummins, for providing us with some solid primary research on a subject which is clearly wanting for additional investigation.



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