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.

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.

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

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.

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.

You are correct, but don't you think that is implied under the 'ultimate objective'? Perhaps you have only experienced part of the statement so far.

Mathieu,

While standardization may be a noble ambition, achieving it is usually quite difficult. You can improve your odds through the use of mutual NDAs that protect the confidential information of both parties and by having fair and balanced agreements, but expecting all suppliers to sign them as-is may be expecting too much.

Your role is to understand their requested changes and to determine the impact to your company and whether the changes are acceptable, and to advise your internal client accordingly.

Hope that helps. Sincere regards.

Consider whether you might be able to use a "standard" and have each negotiated difference stand out as a specific change. There are a number of ways to do this. The most systematic would be to use a master and generate each of the documents from the master, with a patch for the differences. That's possible in a number of technologies. A broad example is shown here: www.commonaccord.org/index.php

Hi Vladimir,

We have standard NDA template and additional clauses in the clause library if the vendor pushes for Mutual NDA. This helps build the agility in NDA execution. My experience says that we are able to push 80% cases on standard NDA template and the balance needs engagement.

If a NDA is well drafted, clear, fair and equitable then it should be signed without issue.

If the client has specific requirements that are reasonable and equitable they should be acceptable to all parties.

If there is an element of inequity or unreasonableness then expect suppliers to push back. The simplest test is "would I sign this on behalf of my organisation": if not, then why expect the other party to sign?

What could be up for discussion: whether the NDA is one-way or mutual? what law and jurisdiction apply? the length/duration of the NDA and of any surviving obligations? whether personal NDAs/statements are required?

I would have concerns if I have received unacceptable terms in an NDA - it wouldn't bode well for any subsequent contract discussions negotiations.

what you need to add to the master agreement are clauses derived from Art. 28. I am also doing the same for my Master Agreements. Here is an example,
Obligations of processors (supplier) in particular include:
- To comply with the GDPR data processing principles and to protect the rights and freedoms of data subjects;
- To demonstrate compliance with the GDPR;
- To maintain records of processing activities and make them available upon request by supervisory authorities;
- To appoint data protection officers or representatives;
- To cooperate with supervisory authorities in the performance of their tasks;
- To ensure a level of security by taking appropriate technical and organisational measures;
- Specific obligations as regards transfer of data outside the EU.
In general, an auditor (DPA) should be able to trace data regarding customers. This also include emails, Excel spreadsheets with links to external systems such as financial and banking, etc.
It is not enough to have a supplier follow the GDPR. It is of most importance that your company/organisation is also GDPR compliant. To start with you need to have a DPO.

As mentioned by Amir there are a number of elements to include, and depending on your organisation and the data you are processing you may need to identify a DPO.

Other things you should identify include:

Is the relationship with the supplier a Controller-Processor, Processor-Sub Processor or Controller-Controller.
Is special data being transferred to the supplier?
Will the supplier be exporting data outside of he EU?

You may also want to include an indemnity clause in case the supplier causes you to breach the GDPR regulation.


If you go to the Information Commissionaire's Office website in the UK (ICO.org.uk) there are some excellent guides and information which may assist you (including links to Article 29 Working Party).

Regards

Carl

IACCM conducted a Ask The Expert webinar on this topic, featuring James Mullock of Bird and Bird. His session was highly rated. The recording and James's presentation are in the IACCM Library. Plus, there are a few other resources in the IACCM Library which are relevant. If you have trouble finding these resources, please let me know.

Best Regards,

Jim Bergman
IACCM

You can also have a look at the Article 29 Working Party webpage - there is a page setting out draft contract provisions that are in line with the GDPR as it is currently being interpreted. You may not want to use the clauses themselves but can use them as a measure for your own inclusions.

Although I'm not aware of an existing case study on this topic, however, during my experience of contract negotiation, I have come across such situations and happy to share some tips that I usually apply. Typically, large MNCs or Government institutions like to push their contract templates and are averse to any changes.
During the beginning of the negotiation lay out on what I call the 'ground rules'. Meaning the aim of the negotiation is for both parties to explore solutions to the issues and not have an ego-tussle. The words "No" or "I don't agree" or "It cannot be done" will be used only after exploring all the available legal options. There is always something to bargain, never give away a demand for free, always ask for something in return. Try beginning with smaller issues first. In many common law jurisdictions, entering into a contract by using undue influence make the contract voidable.

This 'fee or free' battle is very common and is partly linked to organisational culture, partly to the quality of original requirements / scope of work. It isn't clear from your message whether the issues are created through customer expectations that go beyond your own, or whether there are disagreements over formal change requests. As a first step, you need to thoroughly review the scope of work and the change control procedures to determine your rights and ensure the customer is complying with relevant provisions.

Dear Alan,
It´s great to hear that organizations like the one you´re working for as Senior Contracting executive are undertaking this type of exercises in order to gather information around best practices in contract, supplier and performance management.
As the unique global organization identifing best practices in this area, at the IACCM we will be happy to assist enabling other members to share what they have been applying in their respective organizations and, furnished with the results and findings of this networking atmosphere, you will be achieving our goals at Philips 66.
Behind 'best practice' is a simple concept: measurable standards. And that means some form of benchmark is required. So, the exercise proposed in your posting, Alan, is a great example. It will be a comparison against peers, organizations at the same level, in order to get standards and then, you will see how you and others do things and what you and they do.
I know that your company has invested in the developement of contracting skills among your CM staff, and most of your colleagues are currently taking the CCM (Contract and Commercial Management) learning program, in its different certification levels (practitioner, advanced practitioner). At this point, it will be extremely important to consider what IACCM states in module 1 ('Best practices in contracting'), so I'd extremely recommend to review that content, at first sight.
Second, in this link you will find the 'IACCM top ten best practices in contracting' (general): www.iaccm.com/resources/;
Among other relevant resouces provided by IACCM corporate membership, as you might be aware, you have the right to get access to ATEs (webinars) via our IACCM library in subjects such as 'best practices selecting the right supplier': www.iaccm.com/resources/;
In addition, refer to 'Supplier relatioship management: best practices'
www.iaccm.com/resources/;
In sum, over the past several years, supplier relationship management (SRM) has become a major focus within the procurement and supply chain community and many companies are analyzing how best to expand SRM efforts and investment. We look forward to hearing from other members.
Kindest regards,
Pablo Cilotta

Dear Alan,

At Seal Software, we can provide you with a technology which locates, understand and extracts data from your contracts. This can help you with supplier and performance management by:
- Extracting information from your contracts, such as the parties to contracts, and their obligations.
- Maximizing revenue opportunities, by identifying unknown business intelligence.

It would be great to discuss how Seal can help you, in more detail. Please feel free to call me on +4420 735 9892.

Kind regards,
Abigail

We are revamping as well this year and I attended a training from State of Flux in Chicago a couple of weeks ago. I found there approach on planning very particle. For me it is very situation on how you manage your supply base hwoever keys are

1) Outlining performance expectations
2) Holding regular reviews
3) awarding business based on performance

Regards

Mediocrity may apply at two levels - individual or process. In my experience, mediocre negotiators can still achieve good results if there is an excellent process, but the opposite may not be true. What do you think?

it is an interesting point ; in other words, how an individual can 'survive' a mediocre organization and tot only specifically on negotiations...or viceversa ; I have experienced both the cases: most probably an excellent process prevails, it has to, also because it would be difficult for an excellent individual alone to substantially modify a mediocre process ; but, again, that's very interesting from the point of view of dynamics

Hi,
Happy to provide some information on software that can help you quickly and efficiently overcome this cumbersome challenge.

Depending on the nature of the agreements and the industry, there are likely to be ways that IACCM can assist you with appropriate sources of review. Please get in touch with further details. My email is tcummins@iaccm.com