Hi David. Thanks for your question. I have done many large scale IT outsourcing projects, as the commercial lead, with FS firms as well as firms in other industries. I can provide you my background but I very recently completed a $200m core banking deal and years ago spent 4 years in NYC on a $7B IBM / JPMC deal, plus doing large deals at UBS in between. BFSI has always been the largest consumer of IT and many banks are essentially technology firms. Anyway, with regulatory constraints, impacts of fintech, etc., I think there are some unique considerations; but, then again, many industries will have unique considerations. let me know if you want to discuss on a call. also, connect with me on Linked In. Ted Botzum
Hi Marieke - in our organisation we have not yet taken the plunge, but in the absence of anyone else contributing anything, I'd just suggest if you have not already done it, to check out the great resource here :
www.iaccm.com/resources/ Perhaps in this presentation, Dr Jacopino might have something in his toolbox that he might be able to help you with.
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How did you go with this? Did you find a template? Having started my Performance Based Contracting (PBC) journey in 2004 I have seen many different versions of the approach. That said, they all have the same overall content; requirements in the form of performance measures and consequences in the forms of both financial and non-financial rewards and remedies. Darren mentioned my presentation in the IACCM resources, but I also have a blog where I write about this (www.performancebasedcontracting.com), which sometimes become articles for IACCM (part of the role of an IACCM Fellow).
In terms of templates, the one that I know is freely available is the Australian Department of Defence Australian Defence Standard for Contracts (ASDEFCON) Support v4.0. You can download all elements of the contract including terms and conditions, payment, performance measure drafting, etc. It is fairly complex as it is designed for large, long-term contracts, but can be tailored for smaller and shorter term contracts. It is available at www.defence.gov.au/casg/DoingBusiness/ProcurementDefence/PoliciesGuidelinesTemplates/Support.asp. There is additional materials on this site on PBB as well. Please note that I was the author of these PBC elements.
Anyway, I hope this helps you on your PBC journey. And don't be afraid to ask for help!
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Thanks a lot! That will help! I'm already quite familiar with your blog and found it very interesting. Will let you know if I have additional questions.
I think that the consideration was already made via the original agreement. The variation is a change to the original. So, in my opinion consideration has already been made. This relates to my experience in English Law only.
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In some jurisdictions (such as England and Wales) a contract requires 'consideration' (in addition to offer, acceptance and intention).
A variation of a contract is itself a contract - that is, an agreement to vary the original contract. Therefore, a variation will require consideration.
However, it may not be essential to expressly refer to 'consideration'. Consideration is an exchange of promises of value. When parties agree to vary a contract, the consideration can be found with both parties promising to carry on performing the contract as varied.
Having said that, if there is ever any doubt whatsoever as to the presence of consideration, it is always preferable to state clearly what the consideration is. Or (in English law) you could execute the document as a deed.
In the wording of your example, not only the price to be paid for the variation is set but also the terms and conditions or description of the variation is set: 'in accordance with the arrangements set out in this Variation Agreement'. In this case, I understand it as an option to choose: either the original contract, either the modified terms and conditions which works with a different price.
You may offer a variation without any additional cost any time the change to consider does not impact the resources, time or cost of the considered project; or whenever the parties have planned a variation mechanism or tolerance and already included it in the initial price and defined the scope of such authorized variation.