IACCM research shows the issue that most often results in claims or disputes is disagreement over scope and goals.
In many ways it seems remarkable that something so basic to a contract and relationship could so often be a cause of disagreement. But in reality it is difficult to accurately capture and communicate a detailed vision and requirements and there is extensive room for misunderstanding.
At a recent workshop, one participant challenged how much this really matters. “What is the financial loss associated with these disagreements?” he wanted to know.
The answer is ‘extensive’. Among the findings from IACCM research, losses caused by disagreements over scope and goals include:
•For the buyer
– delays in commissioning or production
– ‘panic actions’ to remediate that often result in a price or cost premium (overtime rates, substitute contractor)
– costs associated with retro-fit or rework
•For the supplier
– delayed acceptance and withheld payments
– liquidated damages, extra discounts, application of ‘goodwill’
– additional work for no payment
Interestingly, many scope issues become apparent only at the time of acceptance, suggesting the need for greater rigor throughout the contract lifecycle. Operational staff are often aware of potential shortcomings but are reluctant to report them.
Having recognized that this is a regular problem, what steps can be taken to avoid such issues? Well, that is the subject for another blog because we have identified ‘good practices’ I that regard. Meantime, feel free to share your ideas and experiences.
A New Year causes many of us to take stock of our lives, to consider the year ahead and what we would like to make different or to change.
That certainly applies to our work and our career, as much as to our personal life. For some, the new year marks a resolution to move on, find another job, perhaps even embark on a fresh career path. In that case, we drag out the resume and indulge in a flurry of job applications. For those following this path, the good news is that the market for experienced contract and commercial staff is quite strong, especially those that have proven qualifications.
Others may not despair of their current employer. They may decide that their investment will be in raising their personal profile, seeking added responsibilities or promotion. The big question is how best to achieve this. One possibility is to invest in their skills through formal training and perhaps an IACCM certification. Others may seek to be involved in a high profile project, or even to suggest improvement initiatives that would get them noticed and appreciated.
A third category is those who recognize a need for leadership, who want to achieve goals for their function or their business. This minority of people tend to be far more externally focused. They understand executive goals, they can put them into the context of the market, they appreciate characteristics that have real value and generate competitive advantage. To do this, they must have some awareness of industry norms, of customer or supplier preferences, of ways that the executive agenda could be met. These individuals will have a sense of mission; they are ready to do the research needed to develop a brief but compelling business case.
For those who truly want to make a difference, there are certainly sources for ideas and also for support. An example is the webinar IACCM will run today on 2013 Trends in Contract and Commercial Management. That program will also outline the exciting projects that IACCM has been undertaking, or plans to complete in the year ahead. Fresh approaches to risk management; implementing programs that deliver high return in investment; re-thinking the integration between contract management and relationship management; obtaining competitive benchmarks to drive internal improvements. These are just a few examples of the types of activities that can elevate our profile, our career and – most importantly – our job satisfaction.
So what is your resolution for 2014? For many, it will be to remain firmly irresolute; but for a few, there will be genuine change.
The IACCM webinar ‘A Year In Review’ will be recorded and available in the IACCM Library. Details of IACCM’s benchmarking, capability assessment and certification services for individuals and organizations can be found on the IACCM website at www.iaccm.com
Negotiation can be a frustrating process, a game of discovery. Many suppliers feel that gathering true customer requirements is a bit like playing hide and seek. But what is it that suppliers could do better?
Earlier this year, IACCM ran a survey exploring the experiences of buyers of IT services and outsourcing. These are the types of deals where negotiation is often extensive and prolonged, so an excellent place to explore both how suppliers behave and how customers would like them to behave. The study looked at generic values, but also investigated the specific performance of nine major suppliers.
The major IT service and outsourcing providers are sophisticated in their approach to negotiation. Most of them have well defined processes which ensure good response times. They are generally mature in their industry knowledge and expertise. Where they mostly fail – and frustrate their customers – is in the extent of flexibility and the levels of authority provided to their negotiators. This is exacerbated by challenges in understanding their contract terms or positions and the apparent inability of many supplier negotiation teams to provide adequate or speedy clarification on key issues.
The IACCM study gathered not only generic industry input, but also client experiences with individual suppliers. It revealed significant variations in the quality of their negotiation process and also that many of them struggle to offer a consistent customer experience – in other words, the quality of the negotiation depends on the specific team or, in many cases, the status or geographic region of the customer.
So what is it that customers really, really want? To gain advantage in negotiations, suppliers should focus on the characteristics that customers most value. These are:
- Responsiveness
- Treating the client like a business partner
- Efficiency in quickly closing out issues
- Providing interfaces with the power to make final decisions
- Ensuring a fair and equitable process
Many of the positive – and adverse – comments made by clients relate to the extent of openness, transparency and the sense of honesty. So while responding to customer issues in a timely manner is important, it is the credibility and thoroughness of those responses that really matters. And when it comes to terms and conditions, many account teams are lacking in both the knowledge to explain or the power to amend. Rectifying this situation would be a worthwhile objective for many major suppliers. Even if there are good reasons to restrict power to negotiate, we might at least increase the knowledge and understanding of client interfaces to explain why we take the position we do.
[1] The companies covered are Accenture, CSC, CapGemini, Fujitsu, Genpact, Hewlett-Packard, IBM, Infosys and Wipro
As a new year begins, many organizations have plans to update or re-design their standard contracts or term templates. Such projects usually aim to consolidate changes that have occurred since the last revision; perhaps to reduce the length of the agreement; maybe even to simplify language. But most do not ask fundamental questions regarding the overall efficiency or effectiveness of their terms or agreements.
What do I mean by efficiency and effectiveness? As an example, few (I hope) would disagree that contracts are vehicles for communication, ensuring that the parties understand their obligations and commitments. So a valid question might be to ask how easy is it for people – the actual users of these agreements – to understand your contracts? Can they quickly find relevant content and will they correctly interpret it?
It has been some years since organizations started to recognize the need to improve the quality of their external communications. There was a revolution in the design of forms and documents, ranging from product specifications or installation instructions, through to Annual Reports. Yet in many cases, contracts and their related documents remain untouched, or have been impacted in only superficial ways. The fact that contracts are in general not ‘easy to use’ has a variety of negative consequences and some organizations are grasping this point and looking for more fundamental ways to re-work their existing portfolio.
IACCM is involved with this in two ways. One is the Contract Design Award, introduced in 2013 and providing expert advisory services on ‘best practice design’, together with the potential for successful applicants to display the IACCM Award logo on their contract documents. The criteria against which IACCM evaluates contract quality are:
- Language Criteria: How understandable are the words in your contract?
- Design Criteria: Does the design make the contract structure clear and easy to read?
- Relationship Criteria: How far does your document go to help cultivate a positive relationship among the contracting parties?
- Content Criteria: What is your content and is it organized to deliver your document’s purpose?
- Balance: Do the terms of your contract generate a sense of collaboration and trust?
Another, more fundamental, shift is when groups of companies band together to promote ‘industry standards’. While such an effort is certainly not new, I am seeing it take new forms and wider scope. For example, these efforts are global and their goal is to reduce the amount of low value negotiation by establishing mutually agreed (buy-side and sell-side|) model terms or contracting principles. The aim is not to eliminate negotiation, but rather to ensure it is focused on issues of value – the areas where misunderstanding might arise or where improvements can increase the chances of success.
I believe we are nearing an end to the days when contract re-work was a purely internal affair, informed only by the wishes and desires of functional stakeholders. We have all been through that painful exercise where efforts to streamline or simplify are frustrated by the laundry list of items that interest groups push to include; or where we beat our hands against resistance to change; or where, through lack of external data, we really cannot answer management questions about competitive impact. So if contract re-work is on your agenda for 2014, are you clear about what you want to achieve and might IACCM help you to do it?
“It’s difficult with big end-to-end processes to have a tribe that has ownership of the overall goal and a process owner who is also the tribal leader.”
This comment comes from an excellent blog by Brad Power, in which he explains why it is so difficult for organizations to drive sustained improvement in end-to-end business processes. He observes: “In the absence of a significant disruptive event, or obvious proof that the world is changing, the gravitational forces in organizations pull strongly towards the performance engine: functional, hierarchical, command-and-control, rigid”. And this means that traditional forces provide powerful resistance to any cross-functional initiative for change.
Indeed, in many cases that resistance may mean that certain activities have no defined process at all. This is often the case for contracting. As an activity, it spans multiple stakeholders and functional groups. The quality of output depends very much on the extent of cooperation and a shared view of the goal. Efforts at improvement tend to be driven by a sense of crisis or some ‘disruptive event’ because there is no acknowledged leader or owner of contracting. Process updates or re-design are therefore periodic, often painful, and typically short-lived in their effectiveness.
Occasionally, organizations grasp the importance of integrated contract management capabilities. A leader may step forward or be appointed to ensure cross-functional integration, but their efforts struggle to survive. In case after case, I have seen the traditional functional or geographic silos steadily undermine the central effort, especially when the original architect or leader has moved on.
Unfortunately, there are too few champions of integrated contracting process. Most practitioners are far too tactical or operational in outlook. They are happy fixing problems rather than eliminating them. It takes real vision and personality to be a tribal leader. With the importance that contracting has today to overall business performance, we must hope that a new breed of tribal leader soon starts to emerge.
In general, the quality of commercial risk assessment and management is poor.
While most major organizations have developed sophisticated risk management systems, the extent of value leakage from their contracts is just one piece of evidence that they are lacking in effectiveness. My observation is that significant causes of risk are quite simply overlooked; and risk management is too strongly focused on dealing with risk consequence, rather than reducing probability.
This topic will be a major theme for IACCM in 2014. For now, as evidence, I will offer a couple of examples based on conversations I had last week.
The first was with the European General Counsel of a major international software and services company. He shared with me the approach his organization has taken in developing project lifecycle managers with a strong commercial and contracts background. In itself, this is not of course unique, but he highlighted the fact that it was driven by an understanding of how poorly a traditional functional business structure actually understood or mitigated risks. As an example, he pointed t0 the Legal department and its traditional fixation on securing terms that protect in the event of litigation. “When we did an analysis of actual risks, we realised that litigation comes close to the bottom of the list”.
The second conversation was with a group of credit managers, all from large corporations. We were discussing the role of contracts and negotiations in handling issues around payment. This led to a list of ‘desired terms’ – not just the payment provisions themselves, but mechanisms such as the right to impose interest, delay delivery or terminate the contract. In most situations, such terms are unrealistic – and arguably, they are often irrelevant. But what became apparent in the conversation was that there is a woeful lack of data to support intelligent management of risk. Specifically, there is a disconnect between risk probability assessment and the terms to manage risk consequence. As a result, contract and negotiation strategies frequently miss the key point about risk.
In the end, risk management should be attempting to reduce the probability of risks occurring, yet a lack of consolidated data regarding the frequency or possibility of risks means that instead there is focus on dealing with consequences. Often those efforts result in real risk issues being ignored (e.g. poor communications, wrong focus for reporting, absence of right level sponsors), or of key issues simply being pushed aside in the urgency to ‘win the deal’.
Today’s technology means that there is an opportunity to massively improve the management of commercial risks. A few organizations are grasping this. Most are not.
When we are working within an organization, the years often blend. They move so fast that we may remember isolated events, but rarely spot broader trends.
That is where the overview at an organization like IACCM gives a wider perspective. Working as we do with those responsible for contract and commercial management at thousands of companies and public sector bodies, we gain insights that go beyond the specific strategies, offerings or process changes of a single entity.
Has it been a good year for contract and commercial management? Overall, from the perspective of opportunity, I must say yes. But has the overall community benefited? There, my answer would have to be rather more guarded – it depends.
Much of that dependency is down to the people within the function itself. Some have been leaders in understanding and addressing the changes that their business confronts. Others have at least been responsive when called upon by management. But there are also those who are seen as unresponsive, or of limited value, and these have suffered from the added focus on contracting. since they are deemed irrelevant or an obstacle.
The pace of change affecting both buy and sell-side contract and commercial management continues to pick up. Change always brings winners and losers. For those who want to be among the winners, IACCM will be offering a webinar on January 2nd (live and recorded versions available) in which the senior staff of the Association will be sharing their insights to the major trends and outlining responses to them.
So whether you are in a dedicated contracts or commercial function, within Procurement or within Legal or Operations, if you have responsibility for contract or commercial management, this is a program you should not miss. You can register now at the IACCM website.
Last week I commented on a series of recent public sector contract failures (see Government Procurement in a Mess).
John Smit posted a reply, in which he correctly highlights the problem of inappropriate contract design. He observes a fundamental difference between traditional acquisition contracts and those for services – and that is the need to design for on-going oversight and management. In John’s experience, many Procurement organizations continue to use contracts that were designed for product acquisitions where significant on-going management is unnecessary. They than hand this off to a business unit which now has an inappropriate form of contract, as well as lacking skills or experience in contract management.
John also confirms my original point, that these weaknesses are not unique to public sector.
It is in many ways remarkable that contracting parties continue to allow these weaknesses. Procurement often claims that it merits a seat ‘at the top table’, yet how can this be the case if the function fails even to act on the weaknesses of its own procurement tools and strategies? And providers also share the blame, for these poorly performing contracts are in no way helpful to them. it does not take much investigation to discover whether a customer has post-award management capability. If suppliers had the integrity to point out the likely consequences and helped clients to build their skills, the market would become far more healthy, sustainable and profitable.
Last week, Mary Sebelius (Secretary of State for Health & Human Services in the United States) highlighted an urgent need to improve contract management within her department. Indeed, she specifically initiated a program to introduce ‘best practices’.
This is just one of numerous examples this year where top executives or auditors have called out the need for greater competence in contracting. This will come as no surprise to many leaders in contract and commercial management, who have long realised that changing market conditons and new forms of offering demand strengthened capabilities. Whether on buy-side or sell-side, contracts today are more critical instruments in both establishing and managing the right trading relationships and outcomes.
But it would be premature to celebrate, because most existing contract management groups face two distinct challenges.
First, executives are looking to build competency – not to recruit an army of experts. Sure, there ae opportunities for those with true expertise and there is likely to be some short=term expansion of headcount. But the real point with competency is the need to spread understanding of contract management discipline and tools mroe widely across the organization. Thereofre the role for experts will increasingly be to operate as a knowledge and enabling center. Few have yet adjusted to this mission.
Second, the call is for best practices – and how many contract management groups can claim to know what those are? Since very few undertake research or benchmarking, they have no real idea how they compare or what size gap they need to fill. This means they are rarely proactive in approaching senior management with ideas or substantive investment plans. Hence the executives have limited confidence in their exisitng teams. Indeed, as they look to the future, they may see the current staff as part of the problem, not as the answer.
So as Christmas approaches, you should not expect a sudden flurry of gifts. Indeed, if you want to make it onto the list, perhaps now is the time to reach out to IACCM and gather insights on how to establish best practicve competence, maybe even to undertake a capability assessment so that you are able to advise management on the steps that are needed.
That way, you may at least be in the position ot ensure a happy and prosperous New Year!
This week, IACCM announced the results of its elections for 2014 Board of Directors. There were six seats available, with nine Board members not due for re-election this year.
With 22 candidates standing, members had a wide choice. The candidates represented 12 different industries and ten nationalities. It was a close-run race, and the new Board of Directors is as follows (with newly elected / re-elected members highlighted in bold):
Margaret Smith – Chair Executive Director- Contract Management and Director of Operations-Legal – Accenture
KB Monu Iyappa – Independent Consultant
Gianmaria Riccardi – Director, Commercial Business Management Europe – Cisco System Italia Srl
Coen Wilms – Group Contracting Discipline Manager – Royal Dutch Shell
Lucy Bassli – Assistant General Counsel – GCO Manager – Microsoft
Jerry Jacobson – Global Process Advisor – Contracting – Chevron
Arne Byberg – Associate General Counsel – Hewlett-Packard Co.
Barbara Chomicka – Senior Project Manager – EC Harris LLP
Kai Jacob – Process Manager and Head of Global Contract Management Services, Legal Department Manager – SAP
Andy Kerstan – Global Contracts Manager – Rio Tinto
Dan Mahlebashian – Chief Contracting Officer – General Motors
M.C. McBain – Vice President Global Business Development – IBM
Timothy McCarthy – Director, Contracts & Pricing – Rockwell Automation
Nick Nayak – CPO – Department of Homeland Security
Alan Schenk – Vice President for Common Process, Contracting and Compliance for Exploration and Production – BP
Peter Woon VP, Procurement and Supply Chain – Marina Bay Sands:
Commitment Matters 