Will you earn your pay today? That is a question that Paul Matthews of People Alchemy poses in his ‘Weekly Tip’. He makes the comment: “Don’t confuse effort with results. Just because someone’s car is in the car park the longest does not mean they are producing the best results”.
There is always a risk that many of the things we are doing should not be done, or should be done differently. That becomes even more likely in times of rapid change or volatility. New offerings are introduced, exceptions are agreed, processes are altered without full assessment of their overall impact. This drives growing workload and everyone is simply too busy to step back and ask: “Should we be spending our time on this?”
IACCM’s member research shows a steady and sustained increase in workload for contracts, legal and procurement staff. But the data also points to longer cycle times and more frequent claims and disputes. So the implication is that both efficiency and effectiveness may be declining.
As i pointed out in a blog last week, What will I do differently?, change is hard to achieve, especially for an entrenched and experienced community. And sometimes, even if we recognize the need, we decide that being a champion of change is just too difficult. it seems far easier to wait until ‘they’ (i.e. senior management) do something.
But that is a risky strategy, because it means when senior management gets around to fixing the problem, they may decide we are part of it. As Paul Matthews suggests: “Get in the habit of noticing what you actually did today rather than how long it took; and whether what you did was important and worth doing, both for you and your employer”.
A few years ago, a Global 100 company was re-bidding more than $10bn of its outsourcing contracts. One of the major contenders evaluated the risk allocation and decided to no-bid.
Some time later, I was talking with the head of Procurement at the buying organization. He told me that if one of the other bidders had also declined, it would have led to a massive re-appraisal and would have forced the functions pushing risk allocation (Legal and Finance) to shift their position. Sadly (in his view) no-one else walked away. It took some time for this company to change its ways and build more positive relationships with its suppliers.
I was pleased to read the latest blog from Dalip Raheja of The Mpower Group, in which he describes being on the receiving end of a similarly inappropriate RFP. I have great respect for Dalip – and since most of his work is with Procurement and Supply Management groups, they should be ready to listen to his advice. He cites a case that will be only too familiar to many suppliers, of poorly defined requirements, a mismatch to performance criteria and a flawed procurement process. Dalip also decided to no-bid, but for him there was a happy outcome – he wrote to the company and someone (presumably senior) decided to listen to the reasons and changed the criteria and approach.
Sadly, this is a rare experience – and it will remain rare for so long as suppliers yield to these poorly managed procurements and contracts. Unless there is more frequent push-back, buyers will continue to operate with the myth that their processes and practices are generating savings and value – which in too many cases they clearly are not.
As a final comment, I spoke recently with the CEO of a mid-size software company. They – like Dalip – realized that the buyer was asking the wrong questions and had fundamentally misunderstood market trends and supplier capabilities. They had one of their sales team call the Procurement ‘professional’ who was handling the bid to explain the problem. The concerns were acknowledged – but with no readiness to change the RFP. The supplier asked ‘What is more important – that you follow your process or that you get the right business solution?’ You can probably guess the answer.
Organizations invest in training because they want to improve performance. Yesterday I was talking with IACCM’s head of Managed Learning about his observations on the effectiveness of training, in particular the challenge of applying knowledge to working practices.
There appears to be a big difference between basic and more advanced training. Basic programs are directed at students who have limited prior knowledge. Therefore they have not developed particular methods or approaches and are receptive to learning and its application.
Those at a more advanced – or established practitioner – level are far less receptive. They have established approaches which they need to unlearn or discard before they can adopt a new approach. Making this shift seems like hard work, because it often takes more time and demands fresh thinking. Therefore, even if we accept in principle that there may be a ‘better way’, we are often resistant to its application.
This is reflected in our experience of observing students when they participate in simulations or are asked to reflect on what they have learned. Those who are relative newcomers rapidly produce an extensive list or visibly put the methods they have been taught into practice. The established practitioners struggle to say what they will do differently and instantly revert to their tried and trusted methods, even when they acknowledge that the new method would bring better results.
In a community such as contract and commercial management, this is a problem. There are relatively few newcomers to this community. Typically it does not have openings for graduate hires. Most people have learnt ‘on the job’ because, until recently, there was no underpinning body of knowledge and even less established techniques or methods. This disparity is a source of weakness and illustrates a lack of professionalism.
So unless practitioners are open to learning – and applying that knowledge – we cannot improve our contribution and performance. And that, of course, is exactly the criticism that often comes from senior management.
International business opportunities lead a growing number of companies to develop their routes to market around the world. For many, this means forming distribution networks, often using agents and remarketers.
Many are not aware of the very different rules that apply to such relationships in overseas jurisdictions. These range from issues under competition law to more specific regulations that are designed to protect the local entity. In Europe, for example, companies encounter not only the EU laws and regulations, but also a raft of local provisions that focus especially on rights of termination.
When I met recently with lawyers from one of the top French law firms, they mentioned that disputes with a local distribution partner had become the most common area of commercial litigation in the Paris courts. Now comes an interesting example from Germany. In a case which has gone all the way to the German Supreme Court, a company based in Virginia, USA has been successfully challenged over its choice of law and jurisdiction provision. Essentially, the German courts have decided that the US court cannot be trusted to apply agency terms that are mandatory under German law and which safeguard the rights of the German sales agent. Therefore they have overturned the choice of law provision and deem the US principal to be answerable to the German court.
This determination means that a company must carefully study the local provisions relating to distribution channels and perhaps use these in determining its route to market decisions. It can no longer assume that local legal or statutory provisions can be eliminated simply by relying on an alternative jurisdiction or choice of law.
ISG recently released a brief report on 2012 trends in outsourcing. They comment upon the divergence between markets, which inevitably reflect the variations in economic conditions and business confidence.
In Europe, much of the focus appears to be on cost-cutting, with pressure for utility pricing, limited commitments and short-term returns. Asia is also experiencing anxiety over costs and flexibility, as they deal with a rapid slow-down in local markets and regional growth predictions. This has apparently led to ‘innovative contracting’, with a trend towards ‘assured outcomes’ and strong focus on IT outsourcing.
This leaves the US as a market that continues to cut back on its use of outsourcing and shows far more interest in innovation and transformation. This perhaps reflects the growing confidence of US business that it can effectively compete with new global competitors. This has lessened the need for labor arbitrage in previously low-cost markets and increased the pressure to develop new products, services and business process.
For providers, market conditions remain tough, with significant competition and the need to manage the complexity of divergent markets. However, as the report indicates, there is a growing ability to differentiate not only in terms of the services offered, but also in the range of contract structures and commercial offerings.
Yesterday I presented at a meeting of supplier relationship managers. My theme was ‘Driving Contract Performance Through The Fear Of Failure Just Doesn’t Work…’ and it focused on the need to understand how contracting practices influence behavior and outcomes.
I started by raising questions over the importance of contracts and one co-presenter was quick to raise her hand and tell me ‘We don’t have contracts with our key suppliers’. We had a brief discussion about the implications of ‘no contract’ and it later emerged that while this company has no traditional agreements, it does have a disciplined approach to defining the relationship and how it will be managed. Not surprisingly, there are also documents that sound very similar to Service Level Agreements and Statements of Work.
So in the end, there are essentially ‘contracts’, even if the organization chooses to call them something else. And if they feel this in some way contributes to better relationships with their suppliers, I think that is fine.
The real point here is that contracts matter far less than the contracting process. A good contracting process evaluates how best to structure and manage an organization’s assets – and those assets include their trading relationships. So if you can manage risks and achieve better results through non-traditional forms of agreement, then that is the right decision.
A problem at most organizations is that they tend to have a standardized approach to contracts which rarely allows for discussion of commercial alternatives. As a result, anyone deviating from the system often does so without having adequately explored the implications or alternatives.
I am excited about the break-throughs we are making in truly defining the value of contract management. Or to put it another way, the cost to organizations when they fail to develop strong capabilities in this area.
In previous blogs I highlighted IACCM’s early research into the return on investment from contract management. This was interesting and ground- breaking. But it was also generic and therefore begged the question “Is this really representative of my organization?”
The new news is that an increasing number of IACCM member companies are using those initial insights as a springboard to undertaking detailed internal analysis of their contract portfolio. This may be though a targeted effort, say focusing on a specific category of contracts, or it may be across the board. Some have examined just 20 or 30, while others have started to monitor and track thousands.
The important point is the results, which largely support the initial research findings. They confirm that there is tremendous value waiting to be mined through improved contracting practices and process. Buy side and sell side analysis both reveal large potential for bottom-line benefits. For example, one large corporation discovered that some 29% of its sales contracts underperform. They also identified six key areas that led to this – and that the average underperformance was 22% of planned revenue. Now a plan is in place to tackle this leakage, with the expectation that it can be halved this year. That will bring approximately 2.5% extra revenue to the bottom line – or around $500 million.
In order to gain these rewards, a business must shift its attitude to contracting and see it as a process. Improvement comes from analyzing the contracts portfolio to identify reasons for loss and then, of course, taking steps to fix them. This may require redefining roles within the organization. It certainly demands a shift in appreciation of the value of contracts and that the process can be used to test internal performance.
Here is a brief example. One area where there are frequent problems is contract scope. Weaknesses in definition cause disagreements between buyer and supplier, with many negative consequences. So this calls for further thought about the way requirements are identified, analyzed and discussed, as well as the process and people through which they get documented. But while this will yield improvements, it will also reveal the fact that today’s fast-moving business environment means that scope will often change. So the parties actually need to think about the post-award mechanisms through which change – and associated risks and costs – will be better managed.
Many of the sources of loss are actually much simpler than this one. They are due to terms that were omitted, or unauthorized discounts that are processed, or personnel who have not received training or have no access to commercial guidance.
As I mentioned at the beginning of this blog, I am excited by what we are discovering because at last there is a compelling executive message. Contract management is a critical source of value realization – and we can show you the money!
What are the underlying principles that drive contracting behavior and attitudes at your organization? And how important is the role of contracts in delivering business value or organizational goals?
These are questions that a current IACCM survey seeks to answer (Click here to view or complete the survey). It is clear that the factors influencing contract policy and practice vary widely – and this may increasingly be true in the division between Government and the private sector. For example, this quote from the UK’s Guardian newspaper illustrates one aspect of the divide: “Central government’s primary driver is still cost reduction. Yet whilst cost reduction is still one of the private sector’s top five drivers, other drivers such as increasing customer satisfaction and innovation in order to attract new customers are rapidly gaining in importance.”
IACCM observes growing evidence that organizations appreciate the importance of revising their contracting practices and process, in some instances to raise efficiency, but in many cases to generate better business results. Yet conflicting views and drivers make it more difficult to negotiate and build sustainable relationships. Our survey will reveal the current trends and to what degree they are affecting particular industries or geographies.
This year has seen big changes in the world of patents, with significant developments in the US and the EU.
After years of discussion, the EU accepted the need for a unified system that overrides the previous need to register country by country. The Unitary Patent should be in effect by early 2015, making the filing of patents within the EU far ore attractive and massively less time-consuming and expensive.
At the same time, with effect from last March, the US was overhauling its system under the auspices of the America Invents Act. An important feature of that Act is the ‘ first to file’ principle, which is certainly likely to boost the number of patent applications.
Globally, the use of patent systems to protect IP continues to gather pace. The World Intellectual Property Organization (WIPO) reported 10.7% growth in 2011 and 6.6% in 2012. Of course, it is not possible to know how many of these patents have real merit and to what extent they will be used in efforts to prevent competition or extract money from real inventors. At least one encouraging piece of news was last week’s Execution in the US to limit ‘patent trolls’.
WIPO also commented on the drive by corporations to register intangible assets since these now play such a large part in market valuations, Certainly this implies negotiations over IP rights will remain high on the agenda for the ‘most negotiated terms’.
Of particular interest is the extent to which the source of new patents is changing. For example, last year, the top four filers of new patents worldwide were all from China and Japan (ZTE, Panasonic, Sony and Huawei). Almost 40% of patents came from China, Japan or South Korea – up from less than 8% 20 years ago. If these intangibles genuinely do reflect relative wealth and value, this is a major reinforcement of the shifting global balance.
In a succinct blog, Ken Adams reminds us of the importance and the limitations of the law when it comes to its role in contracts.
The summary Ken provides is important because it illustrates the many things that the law does not do – and by deduction, things that you cannot assume a trained lawyer will address (though of course some will). The law does not impose any duty of common sense or good business judgment. It does not create a duty of clarity. It does not mandate that records or understanding must be complete. In other words, the law is all about making judgment based on established principles of equity and legality.
Ken’s observations reinforce the point that a traditional lawyer is but one stakeholder in the process of constructing a contract. They bring invaluable, but narrow, perspective and insights, largely focused on ensuring enforceability of rights. Of course a business may choose to expand this role and demand that its lawyers also apply wider skill and knowledge – but then it must be clear about that scope and what it considers ‘success’ will look like. Often, the role and expectations of the law department are extremely vague and depend on the perceptions and whim of the individual attorney.
This confusion helps no one. Lawyers are frustrated because they feel that the business people are abdicating responsibility for making business judgments. The business people are frustrated because they feel the lawyers are reluctant to give expanded opinions. Once upon a time, the list in Ken’s blog was a good reflection of the type of contract review lawyers would undertake. Today, they engage far more – but too often in an unpredictable way; and that helps no one.
Commitment Matters 