Ask The Expert: Buying and Selling based on Best Value enables both parties to be more profitable... How do you do it?
Published: 22 Mar 2018
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Author: Todd Snelgrove
Buying and Selling based on Best Value enables both parties to be more profitable. Companies that buy based on best value are 36% more profitable. A value based sales strategy makes them 35% more profitable than those with weak value execution. By focusing on the right things, both parties can be more profitable.
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•
2019-08-30 18:01:18
In the US, Texas or New York are largely considered "neutral territory" whereas in Europe, until very recently UK law was considered neutral. I think that may change with the recent political upheaval.
• Ministry of Defence
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2019-10-04 08:50:59
Or try international trade law?
www.jus.uio.no/lm/index.html
• Legal and Commercial Training Limited
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2019-11-05 09:40:02
In the case of one party proposing Indian law and the other proposing Singapore law, the parties may well choose the law of England and Wales as both Indian law and Singapore law are based upon English and Welsh common law. (Note that there is no such concept as "UK law" as one commentator has suggested below).
However, a party should consider a wide range of factors before proposing a particular governing law and should weigh up the legal and commercial advantages and disadvantages of all the options.
One factor may be the degree of certainty that a contract will be interpreted in a particular way. English law adheres to the doctrine of binding precedence. Some legal systems do not. This could lead to significant uncertainty as to how the law will be applied.
In English law, it may be perceived that the courts allow a greater degree of freedom of contract. Subject to certain exceptions, freedom of contract in English law means that commercial parties are completely free to make disastrous bargains. This illustrates the comparative reluctance of the English courts to interfere on policy or other grounds to rewrite the parties' contracts for them.
For example, in English law it is possible, provided very clear wording is used, to include an exclusion clause that excludes any and all liability whatsoever, even for a deliberate breach of contract. And there is still no recognition of a duty of good faith being applied generally to commercial agreements (but watch this space!). This may or may not be an advantage to you but it remains the case that the courts are likely to give effect to the wording of the contract without imposing their opinions as to what does or does not amount to good faith.
And you may wish to consider the approach of a particular legal system to particular clauses.
For example, in English law, a liquidated damages clause will be subject to the clarification set out recently by the Supreme Court with a subsequent judgment, applying that test, indicating that a freely-negotiated LD clause is likely to be upheld subject to the requirements set out by the Supreme Court. Under UAE law, such a provision would be subject to Article 390(2) of the Civil Code and either party may apply to the court to adjust the agreed amount of compensation so it is equal to the loss. If Indian law were to apply, we would have to consider the effect of section 74 of the Indian Contracts Act 1872.
English law will also recognise an asymmetric jurisdiction clause.
And it may be that the choice of law clause will be reflected in the choice of jurisdiction. So, English law and the English courts. If the choice of courts is to reflect the choice of law, it may well be the consideration should be given to the efficacy of the court system and the technical expertise and other qualities of the judges.
Lots to consider.
Replies: 3
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2014-09-16 19:18:00
Yes I agree, please share with me, I would like to see the legislation and I have recently observed the change in contractor's attitude in negotiation from UK.
• Ministry of Justice
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2015-03-11 06:27:23
The most recent change is the implementation of the European Directives into UK Law, through the issue of the 2015 Public Contracts Regulations. This dictates Government procurement rather than standard commercial arrangements. Section 83 indicates a minimum contract record retention of the contract duration where they are over a certain value: As most contracts have an extended liability life of at least 6 years and as we have a wider obligation to maintain public records, then policy in my government Department is to err on the side of caution and retain for 6-7 years. The legislation is found HERE www.legislation.gov.uk/uksi/2015/102/pdfs/uksi_20150102_en.pdf
• Foreign and Commonwealth Office
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2017-10-20 09:25:25
I'm not sure what the change of law mentioned could relate to - other than what Shaun is referencing.
I would look to follow i) your organisations own information management policy (if it exists - as they should have taken account of relevant law/regulations for your company); or ii) if there is no records policy - then as Shaun says, capturing information and storing information based on the potential risk of claims which would be capped based on the Limitations Act 1980.
The only thing I'd add to point below (for England and Wales jurisdiction) is anything executed as a deed has a limitation period of twelve years rather than six.
Replies: 3
• Fire and Emergency NZ
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2020-03-14 09:23:28
Hi Cate - look, I'll rise to the challenge of the discussion here. Here's the link to this on the IACCM website, and it's also on the commitment matters blog. www.iaccm.com/resources/
In defence of the Western world, I'll say two things :
1. I think that the relationships of many organisations and their teams are certainly being put to the test right now. Personally, I'm seeing a lot of good outcomes in these challenging times across a number of organisations, especially in the emergency sector which I think is an indication that the relationships, albeit perhaps not as deep as those in Asian culture are seeing good outcomes.
2. I'd turn this question around and, perhaps take the heat off the negotiators, ask if it's the organisations who are stupid, or perhaps better put naive. Again, I see a lot of good stuff in this area. IACCM ave challenged the thinking of people and asked why in times of performance, do we go straight to the penalty clauses after courting a supplier through the RFx process. I see many organisations, my own included, using the Significant Services Contract Framework put out by MBIE in New Zealand to make these relationships stronger. For instance, for every such contract, our CE meets with their CE annually which is evidence that perhaps it's not all lost. But I think many negotiators and those in procurement often have budgetary constraints or drivers set by the business. That is, either they can't invest time and money doing this, or their focus set by their leaders is more focussed on cost reduction as a measure of success.
Hopefully others in the Western world reading this will step up and agree or contribute, or perhaps those from the Asian culture might want to post and share their views and experiences as well.
Replies: 1
• Frank's International
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2020-01-10 19:34:37
It creates a conflict of interest in which the other members of the joint venture could be affected negatively.
• Allianz Technology
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2019-01-10 08:45:28
Hi,
I'm just trying to understand your position.
Considering that you are managing all contractual relationship with another company (buy and sell side) sounds actually good from your company perspective. It would mean, that your leadership can expect you to have a full overview about the contractually back and forth with this JF. Therefore I assume it's hard to change the mind of your leadership, since I would expect them to see your doublerole as positive.
However on the other side, there is your personal position, meaning being something in the middle of a sandwich, right? I'm not sure about your empowerment, but in worst case you have also very limited authority to change some company rules (discounts, penalties, payment conditions, acceptance criteria etc.). And on buy side you usually have different contractual expectation than on sell side. I assume, this is the tricky part in your situation. Fulfilling the internal requirements for buy- and sell side with the same contractual partner at the same time (and maybe also your partner asks you if you are a bit crazy, since requesting sooo different contracts when you are either on sell side or on buy side).
When the conditions your company expect in contracts are very different on sell side and buy side, this should be communicated as an issue (to your leadership). I think there are 2 options as solution: either the requested second CM as you suggest, or an escalation to the leadership to align clear buy and sell conditions between your company and the JF, which are equal to both parties. such framework conditions would make at least your position more clear. And maybe there won't be anymore need of a split of the CM roles buy side and sell side?
Since I couldn't find many information in your post, I hope, this is somehow helpful?
If your uncomfortable position has other reasons, please let me know.
BR
Kristin
• Omaha Public Power District
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2019-01-21 20:58:03
I probably would start collecting facts: Firstly, establish the relationship between Your Company ("Y Company") and Company X ("X Company") by looking at any specific, written agreement about the services ("X and Y Services"). Also, establish clarity around (1) Y Company's services to be provided to X Company, and (2) X Company's services to be provided to Y Company. At this point, are there any conflicts that you can see/anticipate in your ability as the Contract Manager during the provision of X and Y Services, that perhaps could result in non-performance or non-compliance? Also, how do you escalate and cure any issues of non-performance (for example)? Secondly, I would review the files documenting any legal review, if any, prior to said agreement being reviewed for signature/execution. Were there any concerns that were raised and eventually resolved (internally)? AT the very least, you could start with the resource allocation -- that is, regarding your time management and how to better allocate your skills - in developing your case. Hope this helps. Regards ~ Rose
• CoreLogic
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2019-05-17 09:01:17
Its an interesting role and I recommend your decision to bring in another manager to take one of the contracts.
I would recommend to present this as two different roles:
On the buy side - Contract Manager would play role of a customer and to manage Company X, need to drive and establish Vendor Management Discipline around Contract Administration / Governance / Service Performance / Financial Management / Risk and Compliance
On the sell side - Contract Manager would play role of an engagement partner to drive business relationship / Value addition to Company X/ increase revenue generation from Company X to your company / Joint go-to-market strategy if possible.
Regards,
Dave
Replies: 4
• Vector Limited
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2017-01-25 21:57:47
Thanks Jessica for posting this question. I appreciate all the inputs from everyone most especially Jason's reply. Like many others, suggesting to our vendors the use of our company templates for professional services is always a challenge. But as Jason suggested, explaining the benefits of using the company template (e.g. easy approval of subsequent statements of work once an MSA has been approved) makes the vendor think and eventually agree. Of course, there is negotiation in the process. It is not a straightforward demand of asking them to accept the template per se but making them aware of the benefits does help.
• IACCM
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2017-01-26 07:19:13
Since this discussion started almost 2 years ago, the world of technology has progressed and IACCM can today offer a service to validate 'contract norms'.
A challenge for buyers and suppliers is that their templates start from positions of self interest and naturally this creates contention and delay. It is now quick and relatively easy for us to provide members with insight to what is a normal position / term for any particular type of. Ontract. This allows internal discussion of the desirable business position and of course informs external discussion to accelerate agreement.
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2018-10-17 05:37:16
Even though it has been a long time since Jessica posted this, I would like to add my comment (may be somebody is still interested in this topic). Usually, I don't face problems with internal clients in the way they don't want to share the template with our customers. On the other hand of course, customers sometimes come back with their template (instead of any comments/tracked changes in our template) or, if not such a "strong" company to insist on their template, they send our template back with all important clauses deleted and replaced with their template wording. Sometimes it is just a matter of wording, and when I see the content is the same and can imagine how long would it take them to have our wording reviewed and approved, I agree with theirs instead. However, sometimes it is really a totally different story, setting us in such an unpleasant situation, that the best option would be not to sign the contract at all. What I learned is, that is not only a question of the size of a company or its hierarchy (=how many approvals do they need), it is often also a "cultural" thing. Some nations have negotiations or even fighting for a win in their veins, and they push back just as a matter of principle. When you set up relevant points in front of them, they usually agree and you get their respect. A great distinguishing model here is the one of Hofstede, which was also mentioned in one of the modules.
Coming back to Jessica's comment, I sometimes face a different problem - internal clients wish to send the template immediately to the customer without any prior discussions or involvements of Contracts. They simply tend to find somewhere a blank template and go out. I always need to explain, that Contracts need to see it and that we, Contracts, are the one responsible for it. Even though using a template, every single deal is unique and a template needs to be adjusted not only with regards to the deal's specific, but also based on our experience with the customer (e.g. I know Czech companies insist on having their ID and information about incorporation in the legal name and address description - if I wouldn't place it in the contract prior sending to the customer, we would look stupid and like we don't care about customer's needs at all. the same is with Russian customers, who, due to their law requirements, need to have bank details explicitly written in the agreement - so I won't release any draft for their review without inserting those bank details).
So I think nobody can only focus on one side of the business - I believe it is not only about customers (CRM) but about relationship with the internal clients (trusted advisor) as well.
• IACCM
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2015-03-27 13:12:53
Hi Jessica
This is a common problem. Many of the relationships with indirect
suppliers are less formal and may have been in place for years, leading to resistance over use of standard templates.
It is of course important to establish whether the issue is just general resistance or whether the standards are not really appropriate to the range of indirect relationships required, or lack required flexibility.
We do have benchmark data at IACCM on cycle times and will be issuing reports on the latest information at the end of April. It should be possible to provide interim data if you need it sooner.
Tim
• NOKIA
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2015-05-11 07:07:04
Internal Template application rather than the one of the supplier is usually a requirement nevertheless the real issue behind is do we protect ourself correctly. Legal usually is validating a template that he wants verybody contract manager to apply. As legal ressources are scarce and expensive ressources it is ovious that this is the first thing that should be pushed. Once you know that he does not work the more complex but more interesting solution for the company is to look at the mandatory clauses that are requested from the contract. So instead of pushing your template you should fight on the mandatory clauses. Fall back position should be created as a handbook of best practices.
• Dept of VA
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2015-05-12 08:15:57
Ms. Prendergast,
Templates, while easy to copy and work with, present a challenge to many companies in part because the template is usually written from one side or the other, providing all the advantages to the author's side and none to the recipient. This is frequently seen in EULAs, where the equivalent of "Not only do we have all the rights, but you are lucky we let you use our product at all, you horrible little vendor!" is common contract parlance.
So how do you overcome the natural inclination of a vendor to resist your templates? The same way you advertise anything else!
Make the option of using your product (the templates) both appealing and advantageous to the vendor. When sending internal templates to a vendor for use, do not present them as a "use or lose" option. Instead, deliver the items with the contracting equivalent of a box of chocolates: Provide vendors a summarized explanation of the benefits offered through using your templates. Bullet-oriented briefs are more effective here, as they provide not only a quick list for the vendor to read, but a point-summary for the vendor's contract manager to use in presenting the overwhelming benefits offered by your templates to their management.
Explain (again in short form) the potential realized cost savings of template use, including ease of follow-on contract development by way of utilizing your "easily-tailored, customer-specific templates." Make every effort to ensure using your templates is so much easier than having the vendor's contract department reinvent the procurement wheel that the vendor (who at this point you should view as your customer) would actually be acting against their own best interest to do anything other than to use your templates.
As M. Fouquier rightly points out, the usual greatest challenge is getting your templates past the legal department guardians. Providing a brief mandatory clause list may be a more advantageous initial step, as it tends to ease legal's protective instinct toward its client(s). Once you present not merely a palatable offering of clauses, but a tasty array of work-easing options to the vendor (and the vendor's legal counsel), your job is 90% done. Offering updates and non-critical individual tailoring options (which would not, of course, change the mandatory clauses) gives the vendor the personalized attention so critical to obtaining their final approval. It is the after-dinner apertif of contracting: "Not only do we offer all these options, but our true focus is on YOU."
Granting the vendor a choice of either (a) using your banquet of templates designed to ease their workload or (b) going through the tedious grind of negotiating back and forth on every item for months makes you and your templates the obvious and preferred choice every time.
Replies: 6
• LUKOIL Mid-East Limited
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2020-03-19 19:03:08
Hello Harry,
I worked in several Russian companies as Contracts Manager and in related roles at both domestic and international projects. What I can tell you exactly is that there is no such thing as specific Russian Commercial Management, there are may be some cultural differences between Russian and Western Europe management style, but methodological basis is based on the same principals and sources.
If you have any specific questions, I'll try to share with you my thoughts and observations based on my past experience.
• University of Grenoble
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2020-03-25 13:38:15
Hello Andrei,
Thanks for your answer, this confirms what I had originally thought!
Is there any reason why there isn't any Russian Commercial Management? Is it linked to hierarchy in the business structure?
Also, would it be worth adapting it to Russia? Or is Russian "Contract Management" more of a legal job better suited to lawyers?
Thanks!
Replies: 2
• Ngamuru Advisory
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2019-06-15 23:42:10
In terms of the 8 different payment schemes I was specifically referring to what we call 'payment curves' (see attached graphic) as opposed to payment regimes such as cost+ (time and material), fixed price, cost + fixed fee, etc. In this light these are grouped into 5 main families with a couple of variations inside each. These are as follows:
- 'all or none' payment curves
- Linear payment curves
- Non-linear payment curves
- Alternative payment such as demerit point and visual payment curves
- Matrix payment curves
The intent of this discussion is to simply highlight that the choice of payment curve, similar to the choice of performance measure and level, can have a significant impact on the success (or otherwise) of the overall performance management framework. My blog (www.performancebasedcontracting.com) has 3 posts specifically on this topic including the graphics.
I hope this helps and answers your questions. However, please let me know if you have any further questions.
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Replies: 1
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