Debates over the rights and wrongs of US ‘extra-territorial’ legislation continue, with the recent ‘exposure’ of Goldman Sachs for money-laundering making worldwide headlines.
In general, I presume that US lawmakers have enacted their various acts with noble motives, to encourage ethical principles. The problems arise when those laws also appear to serve self-interest, or are disproportionate to the crime or characters involved.
This entire topic has unfortunate tones of imperialism, when power is used to impose values onto others (always, of course, with the claim that it is for their own good). It is also problematic when only one country seeks to assert such global rights (though we must assume that it will not be long before others start to follow suit, with perhaps a quite different moral or ethical agenda).
The Goldman Sachs ‘exposure’ by New York regulators came at a time when supposedly the Federal authorities were still in process of investigation. Given the perception by the rest of the world that the US has been remarkably lax with the wrong-doings of its own financial services sector, it is perhaps not surprising that this action (coming close on the heels of action against HSBC) is seen by some as being more about challenging competition to New York as the world’s financial hub than it is to do with equity and justice.
Similar concerns apply to the process of extradition that the US employs in the case of hackers, leakers or whatever other form of action they deem ‘anti-US’. The fact that some US states do not like competition to their monopolistic state lotteries should not result in non-US citizens being imprisoned. It is hard to see the proportionality of pursuing an individual with Asperger’s Syndrome and a fixation of flying saucers who successfully hacked into Department of Defense computers. Maybe in this case it would be smarter to penalize the computer experts who failed to prevent such an amateurish attack.
Overall, the problem with extra-territorial legislation is that it can quickly start to look abusive and undermine the very principles for which it was introduced. The boundaries between extradition and rendition sometimes appear very blurred. The sense that there is not ‘due process’ quickly damages confidence in all aspects of the US legal system. And that is perhaps the real point. If US business wishes to be seen as true and trusted partner, it needs the rules, ethics and laws under which it operates to be seen as balanced and fair. It is not helpful when organizations from other countries fear doing business in the US, or agreeing contracts that are subject to US law.
In my view – and based on the discussions I have – I believe the use of extra-territoritorial law is damaging US interests.
Last week, IACCM ran a workshop for a group of its Australian members. The topic was “Tackling project risk through improved commercial process” and the audience came exclusively from the buy side – a mix of procurement, contract management and project management professionals.
There was wide acceptance of the idea that improved management of risk depends on a more holistic and open approach by both suppliers and customers. Participants acknowledged that imbalance in risk allocation and a focus on the consequences of failure results in behaviors that undermine trust and respect between the parties, which in turn reduces the probability of a successful outcome.
We ran an exercise in which the audience identified the types of behavior needed to support a healthy and productive relationship. They listed attributes such as openness, honesty, quality of communications. When asked to rank their own organization’s performance on these attributes, there was a wide range of views, but on average these buy-side representatives felt they rated a 2.8 (on a 5 point scale, where 1 is excellent and 5 is very poor). Clearly, this indicates significant room for improvement.
We proceeded by asking the audience to evaluate average supplier performance against these same characteristics. Based on their experiences, they declared an average of 3.9 – substantially below their own performance and quite obviously nowhere near the level needed to achieve improved management of risk.
In itself, this result may not be a surprise. The exercise was designed to stimulate thinking and awareness, rather than representing a scientific study. We will repeat it with larger groups to determine the extent to which it reflects international and industry-wide sentiments. But if confirmed, we will have illustrated the urgent need to address these issues of organizational behavior in our commercial practices and evaluations. It is fairly clear that current practices fail to support trust or respect, without which any long-term relationship cannot be sustained.
Close relationships are frequently associated with a lack of rigor. They tend to prevent innovation and act as a barrier to new talent or competition. As a result, pressure builds and change, when it comes, can be violent.
To safeguard this change, the new powers introduce a period of strong controls and create methods to ensure compliance. For example, take this quote: “Trust has been replaced by contracts and the bonds of allegiance by the monitoring of behavior, backed up by the ever present threat of financial penalties”.
This could surely be a description of the last ten years, when the forces of globalization have destroyed many traditional relationships and compliance, control and commoditization have been the watch-words of corporate behavior. loyalty has been sacrificed for the cheapest source of supply. Contracts have become a weapon for financial penalties.
However, this quote comes from a history of the English king Henry VII and reflects his approach to governance in the opening years of the 16th century. It represents his determination to establish a dynasty and to accumulate the material wealth needed to ensure power and influence. Henry’s reign was disruptive to many established relationships and was followed by an era of apparent collaboration in which his ‘evil counsellors’ were sacrificed. In reality, the new order and many of its methods survived, but the leading people though which it had been established were dismissed (typically through beheading!)
Today, at a meeting in New Zealand, there was broad consensus that the procurement practices of the last few years are reaching an end. Like many others, these IACCM members believe that the unrelenting focus on negotiated savings is destroying value. It has had the effect of undermining performance and, in many industries, forced supplier consolidation to a point where there is no longer competition. Hence ‘the new regime’ seeks to be nice to suppliers and is ushering in a new period of cooperative, mutually beneficial behavior. Contracts, negotiations and relationship management practices are being adjusted accordingly.
In this new world, Procurement may be cast as the villain, the ‘evil counsellor’ that misled senior management and caused them to undermine valuable supplier relationships. Some will be sacrificed; others will happily adapt to their new role and deny that they ever agreed with that adversarial, power-based style of supplier management.
What is today’s ‘best practice’ for requirements definition?
That is a question I received yesterday. I would welcome your thoughts and comments.
There are three issues that I would highlight as critical in today’s requirement gathering process. One is volatility, one is technology, and the third is inclusiveness.
The point about volatility is that business needs and conditions are constantly changing. Therefore it is in many cases illusory that requirements will ever be complete or reach ‘steady state’. Therefore the gathering and validation process never ends and contracts must acknowledge this reality. By enabling a controlled and disciplined process to manage change, we can avoid the confusion and contention that comes with rigidity.
The point about technology is that we must recognise not only that it has dramatically affected the nature of requirements (and expectations of users), but it can also be used to streamline and bring quality to our requirement gathering and validation process. Web-based systems can simplify outreach; they enable polling and ‘crowd sourcing’ to establish both needs and priorities. And the right system can offer instant feedback on whether our initial requirements wer in fact correct and met needs.
The final point – inclusiveness – builds on the previous two. Because of rapid change and the availability of web-based tools, our process can be (indeed, must be) far more inclusive of the wide range of stakeholders. Gone are the days when Procurement can act as a barrier between user and provider. Instead, they must facilitate and manage interactions between them. The alternative is for Procurement to take complete accountability for getting requirements right – and that would mean measures that punish them each time they are wrong.
These are brief ideas which I hope will solicit your additional thoughts on how we improve the quality and accuracy of requirements definition.
Government procurement policies have often influenced private sector trends and practices. Last week, I encountered another innovation which, if it spreads, would have significant impact on those responsible for contracting.
I attended a conference where a senior Government auditor presented on emerging plans for future audits of contracts and contract management. He emphasized the growing focus in this area (something evident in a range of countries) as public sector agencies become more vigilant in their elimination of waste and efforts to improve the success of their projects and expenditure.
The auditor explained that there will be four areas on which future checks will concentrate. First, there is the question of whether the right supplier has been selected. This extends beyond simple compliance with public sector procurement rules; it also looks at wider issues of corporate social responsibility. With growing use of suppliers that have foreign connections (ownership, subsidiaries, supply base etc.), this represents a significant duty for public sector employees, though is already a familiar demand for many in the private sector.
He also highlighted that auditors will examine whether the right terms have been put in place and whether there is effective oversight of contract responsibilities. Neither of these focus areas is exceptional. It was the fourth item that caught my attention, because it relates to the overall quality of contracts and contract management in a way that I have not previously encountered, but strongly support. In future, auditors will question the staff responsible for developing and managing contracts to establish whether they are actively benchmarking external practices, to ensure that they are pursuing ‘good practice’. With this in mind, the presenter urged the audience to start working on building connections to external organizations so that they can illustrate the rationale behind the contract structure and terms they have used for any specific acquisition.
Such a move will be demanding for Government employees. Indeed, it would be demanding also for most private sector staff, because contracts and contract management remain areas where there is limited research. I know this because most of today’s research is undertaken through IACCM and we are the only organization to offer a worldwide network of practitioners capable of providing a practical, low cost and dynamic benchmarking service.
The idea of continuous improvement in contract terms, practices and process lies at the heart of the IACCM vision, Many of our members fervently believe that improvement in these areas will raise organizational performance and support the growth of world trade. Therefore, pressure by auditors to promote benchmarking and better contracting practices will be welcomed by many.
“Problems are not the byproduct of unpredictable events, but arise from a wrong turning in the culture of an industry that has come to prioritize transactions and trading over trust relationships.”
This comment comes from an analysis of what is wrong with the financial services sector by leading economist John Kay. It might have come from this blog, or the observations of many commercial practitioners, and it might also be applied to many other industries. For the points that Kay is making is that corporations have lost sight of their purpose and of social expectations.
He highlights the challenges of short-termism, of distorting incentives and of the resultant behaviors of executive management. In particular, the pressure for instant results means that business leaders no longer behave as the custodian of hard-built assets, but see themselves as risk-taking entrepreneurs – the difference being that entrepreneurs take risk with their own assets, while corporate executives do not. (And a further irony is that entrepreneurs who fail lose their assets; executives who fail receive a lump-sum pay-off).
It is this environment that is making life so hard for contract and commercial negotiators. It has driven erratic behavior at the top and destructive behavior at the bottom (in groups like Procurement, where the switch to ‘transactions and trading over trust relationships’ is most evident).
Kay also makes the point that regulation has switched from a system that sought to address conflicts of interest (e.g. separation of activities) to a system that seeks to regulate behavior. Yet that is incredibly hard to achieve – as the banking industry is proving. “The outcome,” he observes, “is regulation that is at once extensive and intrusive, yet ineffective and largely captured by vested interests.” He goes on to lament the growth of a ‘regulation industry – an army of compliance officers, regulators, consultants and advisers with an interest in the regulation industry’s expansion’.
A risk for contracts, commercial and legal staff is that they become sucked into this regulation racket and lose sight of their true role in value delivery. I agree with John Kay that the current environment cannot survive, because it is so far out of line with the public interest. We must ensure that we are active in defining and implementing the improved solution and do not find ourselves caught as the protectors of the old, inadequate risk and compliance regime. Because one thing is certain – top executives will very quickly move on to the new world and rapidly forget the people who were their friends in the former system.
Once again, contracts and commercial judgment have proven their value and importance, this time in the successful delivery of the London Olympics ‘megaproject’.
Andrew Davies leads research on innovation in infrastructure projects and systems at Imperial College Business School in the UK. He has investigated the performance of the Olympic Development Authority in delivering the required infrastructure on time and within budget – and undertaken comparison with similar projects, such as the redevelopment of Wembley Stadium (four years late and substantially over budget) and Heathrow’s Terminal 5 (highly successful development but flawed implementation).
His conclusions represent valuable insights for anyone involved in the design and delivery of contracts for complex projects:
– avoid traditional fixed-price contracts unless there is a clear and collaborative mechanism to resolve issues and changes.
– avoid parceling out the risk to contractors. Risk must be shared by the client and the contractors, driving a collaborative approach.
– avoid disjointed testing and acceptance. A coordinated approach that allows adequate time for full system tests must be built into the agreement.
– avoid unrealistic budgeting. A cooperative approach with transparent data means that the relationships between the client and delivery partners are positive from the outset.
Interestingly, Dr. Davies observes that ‘heavyweights in project management’ are the people learning from these experiences – surely, if true, a condemnation of the commercial and legal profession who should above all have a sense of which contracts work best and what terms and practices are needed to support successful delivery. Or once again, are we focused only on the situations that go wrong and ensuring we have the right penalties in place?
A recent court case regarding the ‘unlawful killing’ of newspaper seller Ian Tomlinson provided a useful lesson for contract and relationship managers.
The trial revolved around whether a London policeman had used unreasonable force when he pushed Mr. Tomlinson (an innocent passer-by) during anti-globalization protests in 2010. The jury returned a verdict of not guilty, but in a post-trial statement their lawyer suggested that the family may now pursue a civil action.
His words were interesting, because they focused mainly on the family’s frustration that there had been no apology by the police. He implied that further legal action is contingent upon some acknowledgement of wrong-doing and a sense of contrition. This reflects the sentiments of many (such as those who suffered tainted blood transfusions) when they feel that a wrong has been done, yet has not been recognized.
For the contract or relationship manager, similar situations often arise and present a dilemma. During its performance, many contracts leave one party or the other feeling that they have been unfairly treated or wronged. What happens next requires fine judgment by the offending party (who may not actually feel that they have offended in the first place). An ill-timed acknowledgement could result in an effective admission of guilt and be used in later proceedings. Yet a denial or lack of empathy may make those proceedings more likely.
Skilled contract and relationship managers are sensitive to such situations and seek to defuse emotions before they build. An adversarial or combative approach cannot yield long-term beneficial results. It is key that we remember the potential cost of a short-term victory on the overall relationship – and that a party who feels wronged will continue to seek satisfaction or revenge.
By Craig Guarente, CEO, Palisade Consulting Group
Predictive analytics is all the rage. Whether it’s gigantic software companies snapping up smaller specialty firms, or cities across the country using data to predict crime, the true power of harnessing the right data is making headlines. Just this week there was news detailing how cities in California have been beta testing new software that can predict where the next crime is going to happen. (See article) It’s pretty amazing stuff and sure beats waiting for the crime to happen. This is a police force being a true crime prevention force, rather than just crime responders.
At Palisade Consulting Group we’ve been using data in a very similar way to help companies predict where the contract requests are coming, when they will occur, what potential problems are likely to occur, the list goes on and on. Using data to make decisions and drive behavior is nothing new. However, doing it effectively in the contracts space is new, and presents some unique challenges.
One major problem is how the contracts function and the entire contracting process is decentralized and fragmented. You can’t gather data if there is no form to it. Another major problem, and I say this with all due respect to my legal eagle friends, is the general aversion lawyers have with numbers and putting their work in boxes to be measured and analyzed. The hardest part about using data is getting people to accept the numbers. That’s why it takes process work, software work, cross team collaboration work, and experience to pull all the parties together to make effective use of data.
Traditional contract organizations are built to have their clients wait. It doesn’t matter how fast you go as a contracts professional, the person who is looking for the contract is going to wait. It may be a month, a week, or an hour, but there is still a waiting process. You need to change that conversation. Instead of a request coming to you and there being a wait time, how about you go to your internal customer and say something like, “I know 100 requests are coming in this week. Where are they?” That type of dialogue is empowering and enables for faster more effective interactions. You can lower your costs and reduce your risks by only working on “real deals.”
I could go on and on with how using predictive analytics can improve your corporate contracting processes, decision making, and bottom line. If you want to know more about how computers and data are used in crime prevention just do a search on “NYC Compstat”. There is some good stuff out there.
Commitment Matters 