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.
I note your profile refers to "Moreland City Council", I assume Melbourne (Australia).
Note - this response references 'UK' practice and legislation, different rules may well apply in your jurisdiction.
In the UK consideration would need to be given as to whether the contract was let under a government framework (or similar 'public procurement rules'), if so there may well be restrictions in place as to whether you could extend further.
If it is under a Framework, in the UK you would need to offer a 'Direct Award' extension (if permitted). If it is 'non-framework' then you would almost certainly be able to extend subject to agreement with the supplier.
Assuming you can extend, doing so after the previous contract has expired is generally permissible as long as both parties agree; for 'neatness' I would suggest that the extension applies with 'retroactive effect' from the day the previous contract expired, so there aren't any 'uncovered periods'.
Hope this helps
NOTE: you need to be wary of anti-bribery and corruption laws - extending 'expired' contracts rather than running a competitive procurement process often leads to concerns being raised - you may well need to demonstrate that this is very much an 'interim and last resort' measure as a precursor to a full competitive procurement process.
• Victorian Council - Australia
Thank you, Steve
Thank you for the prompt reply!
I agree with your comments
Victoria's IBAC (anti-Corruption body) highlighted that as one of the red flags for corruption
Generally speaking, we do not extend contracts beyond their expiry dates, especially if all extensions have been exhausted.
I am coming to these special and few cases that we have to manage. I am trying to balance commercial needs and legal exposure if any.
Of course it depends on the legislation of each country.
In my case we have gone from avoiding having extensions or addenda to contracts to try as a first option to extend the contract through an addendum since there are many associated advantages such as having a long-term collaborative relationship with the contractor. Manjeand the risk of corruption we have achieved very good agreements to extend contracts.
Luke - I would suggest looking at the Federal Acquisition Regulation (FAR), specifically Part 2.101, as the "Commercial Item" definition there may help you with your commercial item justification. I would suggest using the website Acquisition.gov. Also FAR 15-403 (c) may help some as well. Best of luck!!
Hello Lamija, I have encountered this situation numerous times (in an industry other than the one I am in currently). My approach to this, usually with success, was to define a clause wherein the distributor is given a very clear revenue/sales goal for a defined period of time (say, 6 months to one year) during which we would not grant exclusivity, nor would we actively seek another distributor. If the distributor met the clearly defined objectives, we would then negotiate an exclusive arrangement. Many factors contribute to this scenario, however, such as the relative size of the market, the number (or lack) of distributors in the sector, the risk associated with "betting" on a single player, cultural social/considerations, etc.
In short, exclusivity based on proven performance. I hope that proves helpful.