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Responding to Requests For Advice – Part II

February 21, 2011

Last week, I wrote about a question I received from a Project Manager seeking contract advice (see original article). I said that I would share my response, which was as follows:

“The answer to this depends very much on the overall contracting and negotiation strategy that the Department wants to follow, and this will of course be driven by the key criteria that determine ‘success’.

Overall, what are the fundamental attributes of a good outcome and what capabilities are needed to safeguard their delivery? Once answers to these questions are established, it is possible to determine who will be responsible for ensuring the attributes are met and these can then be reflected into contract structures and terms.

Without this analysis, the detailed terms and procedures listed in the question could be rendered meaningless or counter-productive. Or to put it another way, if there is already clarity on these success criteria, then advice regarding measurements, terms, cost, negotiations etc. can only be given in the context of those criteria. The contract should never be developed in isolation from the overall scope and relational strategy.”

Far too often, people see contracts as some sort of  instant-access template that can be applied almost regardless of circumstances. It is viewed rather like a sheet of gift-wrap, something that is necessary, but not fundamental to the value of what lies inside.  Yet in truth, the contract defines the content and its value. The fact that people outside the world of contracts often fail to understand this is the responsibilityof the contracts and legal profession; it is a failing we need to address through far better communication and much higher quality advice and support that helps our colleagues in the business understand the role of contracting and the importance of full and inclusive information.

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