Contract and Commercial Management - The Operational Guide E-Book

Katherine Kawamoto

• Herausgeber: Van Haren Publishing
• Kategorie: Bildung
• Serie: IACCM Series. Business Management
• Sprache: Englisch

Seitenzahl: 1183

Veröffentlichungsjahr: 2011

Beschreibung

Almost 80% of CEOs say that their organization must get better at managing external relationships. According to The Economist, one of the major reasons why so many relationships end in disappointment is that most organizations 'are not very good at contracting'. This ground-breaking title from leading authority IACCM (International Association for Contract and Commercial Management) represents the collective wisdom and experience of Contract, Legal and Commercial experts from some of the world’s leading companies to define how to partner for performance. This practical guidance is designed to support practitioners through the contract lifecycle and to give both ‘supply’ and ‘buy’ perspectives, leading to a more consistent approach and language that supports greater efficiency and effectiveness. Within the five phases described in this book (Initiate, Bid, Development, Negotiate and Manage), readers will find invaluable guidance on the whole lifecycle with insights to finance, law and negotiation, together with dispute resolution, change control and risk management. This title is the official IACCM operational guidance and fully supports and aligns with the course modules for Certification.

Leseprobe

Contract and Commercial ManagementThe Operational Guide

This book is dedicated to the memoryof Margaret Carey who inspires us allby planting small seeds of partnershipsand friendships worldwide.

Colophon

Title:

Contract & Commercial Management – The Operational Guide

Lead Authors:

Tim Cummins, Mark David and Katherine Kawamoto

Contributory Authors:

IACCM

Copy Editor:

Jane Chittenden

Publisher:

Van Haren Publishing, Zaltbommel, www.vanharen.net

ISBN Hard copy:

978 90 8753 627 5

ISBN eBook:

978 90 8753 628 2

ISBN ePub:

978 90 8753 972 6

Print:

First edition, first impression, October 2011

First edition, second impression, February 2012

First edition, third impression, January 2014

Design and Layout:

CO2 Premedia bv, Amersfoort – NL

Copyright:

© Bmanagement 2011

For any further enquiries about Van Haren Publishing, please send an e-mail to: [email protected]

Although this publication has been composed with most care, neither Author nor Editor nor Publisher can accept any liability for damage caused by possible errors and/or incompleteness in this publication. Th is guidance is not intended as a substitute for specifi c professional advice, which should always be sought where required.

No part of this publication may be reproduced in any form by print, photo print, microfi lm or any other means without written permission by the Publisher.

Foreword: By the Board Members of IACCM

As executives and senior managers in some of the world’s major corporations, each of us has had direct oversight for aspects of contract and commercial management within our business. Individually, we have observed the growing role and complexity associated with contracting and this has been reinforced through our experience as elected members of the IACCM Board of Directors.

It is clear that contract management is an increasingly diverse and important organizational competence and this demands greater consistency and efficiency in its management. It also requires more creativity and the tools and techniques that are necessary to improve the quality of judgment and decision-making. Each of us is aware of the difficult balance between control and compliance on the one hand, and agility and flexibility on the other.

While such tools and techniques are fundamental building blocks, the skills, competence and professionalism of the people who work in and around the contract management space are also key. This book represents an important contribution to that heightened competence, offering as it does the first comprehensive view of contract and commercial operations from a cross-industry, bi-partisan, worldwide perspective. It is an ambitious work that seeks to rise to the challenge of managing business relationships in today’s complex global markets and equipping the practitioner with a robust ‘body of knowledge’ that reflects leading practices.

Dave Barton

Director of Contracts

Agilent Technologies

Adrian Furner

Commercial Director

BAE Systems

Diane Homolak

Global Legal Operations Quality and Strategy Manager

Hewlett-Packard

Monu Iyappa

Executive Vice President Legal

GMR Infrastructure Ltd

M.C. McBain

Vice-President Global Alliances & Contract Development

IBM

Steve Murphy

Vice President, Contracts

Raytheon Integrated Defense Systems

Nancy Nelson

Global Contracts Director

CSC

Gianmaria Riccardi

Director, Commercial Business Management Europe

Cisco Systems

Alan Schenk

VP Common Process, Contracting & Compliance

BP

Craig Silliman

Senior Vice President & General Counsel

Verizon

Margaret Smith

Executive Director Contract Management

Accenture

Peter Woon

VP, Procurement and Supply Chain

Marina Bay Sands Pte Ltd

Preface

About this book

All around us is rapid change and growing complexity. The demands on contract negotiation and management have never been greater. There is an urgent need for sustainable practices that support flexibility and dynamic change.

Those who are responsible for contract management must heed the calls for greater collaboration, more innovation, greater readiness to simplify the rules and procedures that will allow management to address turbulent market conditions. At the same time, we must achieve increased rigor, greater compliance and improved controls in our contracts and relationships.

Making sense of these conflicting issues demands a more consistent view of contracts – their purpose, their structure and the terms we use within them. It demands the use of common methods and techniques, common terminology and attitudes to risk and opportunity.

To add to these pressures, we are witnessing a steady increase in the influence of emerging markets and newly powerful economies that cause us to question some of the well-established traditions of contract management and the law. This means we must engage in dialog between different business, legal and social cultures to establish clear and mutually acceptable first principles.

It is in this environment that we offer this Operational Guide, to equip those who must manage the complex contracting requirements demanded by today’s global markets.

About the authors

The International Association for Contract & Commercial Management (IACCM) is a non-profit organization that owes its origins to the growing complexity of world trade and the consequent need for increased and more consistent skills, knowledge and procedures in the field of contract and commercial management.

The Association was founded in 1999 to fill the gap in international understanding and competence in contracting. Its purpose is to explore and disseminate ‘best practice’ in the formation and management of trading relationships, as well as equipping business managers and negotiators with the knowledge required to navigate within today’s environment.

Through ongoing research, IACCM provides many of today’s top corporations and government agencies with the knowledge they require to develop the process and skills that ensure the integrity and success of their contracts and commercial practices. IACCM is unique in representing both buyers and sellers, ensuring a consistent body of knowledge and reducing the risk of unsuccessful outcomes through the promotion of mutual understanding and more collaborative working.

This book is an operational guide to those practices and methods. It has been compiled and reviewed by a wide variety of professionals and academics, representing multiple industries, countries and commercial disciplines. The book is therefore a practical resource for anyone involved in contracts, their negotiation or management.

Tim Cummins,

CEO, International Association for Contract & Commercial Management

www.iaccm.com

Acknowledgements

We would like to thank the team of experts who contributed in such a major way to this ground-breaking publication. They have spent much time and kindly given their expertise to encourage better practices and understanding worldwide.

First of all we thank the Lead Authors: Tim Cummins, Mark David and Katherine Kawamoto for pulling together the structure, the approach and much of the text. They inspired the most professional approaches from the supporting teams as well as dedicating much time to drafting, refining and re-refining the final work. Their persistence, patience and humor is greatly appreciated.

We also wish to thank the international team of experts who contributed to and reviewed the manuscript. Respected experts world-wide have been kind enough to spend hours supporting other team members, reviewing text and also sharing invaluable experience. Always positive and professional, these experts demonstrate the true strengths that can be found in this area.

Team

Ravindra Abhyankar

Purwa

Natarajan Balachandar

TECHNIP INDIA LIMITED

Gerlinde Berger-Walliser

ICN Business School

Guillaume Bernard

Schneider Electric

Alexander Beyer

complon

Chris Caro

IBM

Arthur Cohen

Praxis Consulting, LLC

Jacqui Crawford

BP

Arvind Dang

Central Park Estates Private Limited

Xavier Darmstaedter

DACOTA Consulting

Alvaro de Leon

Transcom

Vivek Durai

tman Law Partners

Eric Esperne

Dell Healthcare & Life Sciences

Jesús Álava Fernández

INITEC TR Group

Jean-Marc Fraisse

NNEPharmaplan

Ernest Gabbard

Allegheny Technologies

Claudia Gerlach

Nokia Siemens Networks

Max Gutbrod

Baker & McKenzie – CIS, Limited

Margo Lynn Hablutzel

CSC

Roselle Harde

Accenture

Robert J Hatfield

Improvement Advisory Services

Phoebe He

Avnet

Jan Heidemann

Consultant

Paul Carter Hemlin

Contract Management Direct

René Franz Henschel

Aarhus University

Christof Höfner

Nokia Siemens Networks

Diane Homolak

Hewlett-Packard Company

Linda Hopkins

Accenture

Doug Hudgeon

Operating Efficiency

Monu Iyappa

GMR Group

Agustín Garzón Jordán

Agilent Technologies

Amit Kapoor

Mahindra Satyam

Tiffany Kemp

Devant Limited

Anton Klauser

Nokia Siemens Networks

Ingo Köhler-Bartels

Dimension Data Germany

Mireille Lafleur

Alstom (China Investment Ltd.)

Tom Larkin

Solathair Management Consulting, LLC

Ashif Mawji

Upside Software Inc.

Tim McCarthy

Rockwell Automation

Peter McNair

SEA Business Management Pty Ltd

Stefan Moecking

Unisys Outsourcing Services GmbH

Daniel Nagel

BRP Renaud & Partner

Jamie Napper

Best Buy Europe / Carphone Warehouse

George Neid

Raytheon Company

Nancy Nelson

CSC

Viv Nissanka

BBC

Jeanette Nyden

J. Nyden & Co

Thomas Oswald

Booz & Company

Makarand Parkhi

Aquatech Systems

Elekanyani Phundulu

Transnet Freight Rail

Carlos Pistone

Alcatel-Lucent

Philippe Poisson

BT Global Services

Ramakrishna Potluri

SAP

Gianmaria Riccardi

Cisco Systems

Ignacio Romera

INNOKEY

David Ross

BT

Greg Russell

Project Advice Services Limited

Ronnie Sefoka

Sasol

Satender Sharma

Petrofac International

Jan Ole Similä

Nord-Trondelag University College

Abhishek Singh

Adhani Institute of Infrastructure Management

Nigel Spink

Thales Rail Signalling Solutions Inc

Kokkula Srinivas

Bharat Biotech International

Mark Swarthout

CSC

Anita Thussu

Infosys Technology

Rajeev Thykatt

Infosys BPO Ltd

Mike Tremblay

HP

Amina Valley

SAIC

Daniel Vohrer

The Linde Group

John Weiss

The Highland Group

Lyndon White

Dial Before You Dispute Pty Ltd

Joginder Yadav

Nokia Siemens Networks

Alexander Yavorchuk

Oracle Inc.

Edwin T Y Yeo

The views expressed in this title by the contributors are personal and it should not be assumed that they represent the formal views of their employers or organizations.

We would also like to thank Jane Chittenden, Copy Editor, for her work in finalizing the manuscript.

Contents

Foreword: By the Board Members of IACCM

Preface

Acknowledgements

1    Introduction: contractmanagement - a global context

1.1      The challengeof choice

1.2      Impacts upon contracting

INITIATE PHASE

2    Understanding markets and industry

2.1      Identifying potential markets

2.2      Market segmentation

2.3      Competitive analysis

2.4      Product definition

2.5      Contracts role in PLM

2.6      Identifying risks

2.7      Matching the agreement to the market

2.8      Summary

3    Understanding requirements

3.1      Why requirements matter

3.2      Early involvement

3.3      Defining the role of requirements

3.4      Factors driving improved specifications

3.5      Increased frequency of volatility and change

3.6      Managing inevitable change

3.7      Strategic and cultural fit

3.8      What goes wrong

3.9      Five key milestones

3.10    Tools and techniques for ensuring milestones are met

3.11    Common causes for delay or failure

3.12    Summary

4    Financial considerations - understanding cost and setting charges

4.1      Introduction

4.2      Bid strategy: why does cost matter?

4.3      The role of the contracts professional

4.4      Bid strategy: the importance of cost analysis

4.5      Contract standards as cost management tools

4.6      Contract terms as a cost management tool

4.7      Contract terms that can potentially reduce cost

4.8      Dependencies

4.9      Bid strategy - how to set your charges

4.10    Contract terms - differences that may have financial impact

4.11    Bid strategy - differences that may have financial impact

4.12    Pre-bid phase: cost-benefit analysis

4.13    Summary

5    Aligning risk through financial modeling

5.1      Introduction

5.2      The importance of economic alignment

5.3      The basics of financial modeling

5.4      The MediaCity case study

5.5      Making judgments

5.6      Financial model elements

5.7      Some basic principles and terms

5.8      Pricing mechanisms

5.9      Gainshare and shared benefits

5.10    Other factors

5.11    Summary

6    Routes to market - partnerships, alliances, and distribution and sourcing options

6.1      Primary types of contracts used in large businesses

6.2      Use of agents and representatives

6.3      Local, national and international laws

6.4      Identifying potential suppliers and relationships

6.5      Evaluating project scope

6.6      Options for contracting

6.7      Summary

7    Request for Information

7.1      Request for Information - Pre-Bid phase

7.2      Selecting and assembling the RFI team

7.3      Beginning the RFI

7.4      RFI content

7.5      Change control and support

7.6      Experience and stability

7.7      Functional, technical and business requirements

7.8      Software and hardware requirements

7.9      Budgetary pricing

7.10    Support

7.11    Security requirements and considerations

7.12    Review, validation and distribution

7.13    RFI conclusion

7.14    Alternatives to an RFI

7.15    Supplier’s perspective

8    Undertaking a Terms Audit

8.1      Reasons for undertaking a Terms Audit

8.2      Purpose of a Terms Audit

8.3      Consequences of inappropriate terms

8.4      When to audit

8.5      The warning signs

8.6      Understanding impacts

8.7      Undertaking a Terms Audit

8.8      Sample audit

8.9      Summary

BID PHASE

9    Bid process and rules

9.1      Introduction

9.2      Bidding process preliminaries

9.3      Bidding vehicles and when to use them

9.4      Supplier’s requirements response

9.5      Scoring and ranking the suppliers

9.6      Managing the RFx process

9.7      Evaluating responses - overall score

9.8      Supplier notification and the BAFO process

9.9      BAFO process and final contract

9.10    Supplier award notification

9.11    Supplier post-award issues

9.12    Summary

10  Request for Proposal preparation and content

10.1    Introduction

10.2    Defining, managing content and drafting bid requirements

10.3    Pricing information (seller only)

10.4    Security, health and safety requirements and consideration

10.5    Managing the evaluation process (buyers)

10.6    Summary

11  Responding to a Request for Information or Request for Proposal

11.1    Introduction

11.2    Background: the procurement process

11.3    Identifying an opportunity

11.4    Execution of non-disclosure agreements

11.5    Contracts professional involvement

11.6    Why have a bid process?

11.7    Key elements of a bid process

11.8    The role of the contracts organization

11.9    Contract management - adding commercial value

11.10  The bid goes on

11.11  Approvals

12  Request for Proposal management

12.1    Introduction

12.2    Role of the contracts professional

12.3    The RFP document

12.4    Supplier selection and RFP distribution

12.5    Contract negotiations

12.6    Notifying unsuccessful suppliers

13  The influence of laws on the bid process

13.1    Introduction

13.2    Basic principles

13.3    The influence of laws: international summary

13.4    The influence of laws: UNCISG

13.5    Offer and acceptance

13.6    Conditional offers and revocation of offers

13.7    Problems with preliminary arrangements

13.8    Closing the deal

13.9    Pre-contractual negotiations

13.10  Arbitration and alternative dispute resolution

13.11  Local law: civil code versus common law

14  Costs identification

14.1    Cost overview

14.2    Activity-Based Costing

14.3    Tax consequences

14.4    Allocations

14.5    Opportunity costs

14.6    Cost of poor quality

14.7    IT systems costs

14.8    Hardware costs

14.9    Software costs

14.10  Infrastructure costs

14.11  Personnel costs

14.12  Other costs

14.13  Consensus on approach

14.14  Credibility of assumptions

14.15  Risk assessment

15  Opportunity evaluation

15.1    Introduction

15.2    Involvement

15.3    Preparation

15.4    Evaluating the scope

15.5    Assessing the risk

15.6    Avoiding reference pitfalls

15.7    Evaluating the relationship

15.8    Judging customer sophistication

15.9    Evaluating future opportunity

16  Proposal preparation

16.1    Introduction

16.2    Is it worth bidding? The four critical questions

16.3    Understanding the customer

16.4    Understanding the customer - buying criteria

16.5    Understanding the competition

16.6    Reviewing and assessing risks

16.7    Working with the pursuit team

16.8    Responding to the RFP documents

16.9    Responding to the RFP documents

16.10  Characteristics of successful bidders

16.11  Customer contact

16.12  Green Team review

16.13  Red Team review

16.14  The Executive Summary

16.15  Bid submission

16.16  Negotiations and pricing

16.17  Relationship selling

17  Evaluating the proposal

17.1    Overview

17.2    The evaluation framework

17.3    Primary categories

17.4    Product evaluation criteria

17.5    Intangible criteria

17.6    Other evaluation components

17.7    Implementing the evaluation framework

17.8    Alternative approaches

17.9    Factors for success

17.10  Summary

DEVELOPMENT PHASE

18  Contract and relationship types

18.1    Introduction

18.2    The importance of relationships

18.3    Primary types of contracts used

18.4    Product and services contracts

18.5    Contracts for services

18.6    Solutions contracts

18.7    Outsourcing

18.8    Turnkey contracts

18.9    Summary

19  Contract terms and conditions overview

19.1    Overview

19.2    Start right

19.3    Purchase contracts and why they matter

19.4    Areas that the contract should address

19.5    Types of contract and some issues

19.6    Separating business and legal terms

19.7    Key elements in contracts

19.8    Summary

20  Technology contract terms and conditions

20.1    Introduction

20.2    A specialized discipline

20.3    Definitions

20.4    Scope of Use

20.5    License types

20.6    Assignment and rights to use

20.7    License versus ownership

20.8    Audits and compliance

20.9    Software maintenance services

20.10  Hardware contracts: overview

20.11  Performance

20.12  Support and maintenance services

20.13  Upgrades

20.14  Compatibility

20.15  Services contracts: overview

20.16  Statements of Work (SOWs) and milestones

20.17  Termination

20.18  Summary

21  Term linkages, managing cost and risk

21.1    Overview

21.2    The challenges of term linkages, managing cost and risk

21.3    Contract structure

21.4    Negotiated terms

21.5    Active versus passive terms

21.6    Terms Audit

21.7    Term analysis

21.8    Shifts have impact

21.9    Paradigm shifts

21.10  Legitimate terms that miss the point

21.11  Performance cost of the deal

21.12  Acceptance provisions

21.13  Preferences - supplier versus buyer

21.14  Multi-country projects

21.15  Contract pricing arrangements

21.16  Summary

22  Statement of Work and Service Level Agreement production

22.1    Introduction

22.2    What is an SOW?

22.3    Why is an SOW required?

22.4    Basic process for developing an SOW

22.5    How do SOWs and SLAs relate?

22.6    Service Level Agreement (SLA)

22.7    IACCM outsourcing survey

22.8    What is included in an SLA?

22.9    Other SLA considerations

22.10  Summary

23  Drafting guidelines

23.1    Introduction

23.2    Clarity

23.3    Contracting transformation

23.4    The contract document

23.5    Why a written contract?

23.6    What form should be used?

23.7    Rules of contract interpretation

23.8    Other contract interpretation guidelines

23.9    Background to contract drafting

23.10  Drafting best practice

23.11  Before you start

23.12  Drafting a complete agreement

23.13  Amendments and attachments

23.14  Drafting techniques

23.15  Contract terminology

23.16  Writing style

23.17  Tools

23.18  Summary

NEGOTIATION PHASE

24  Approaches to negotiations - framing, strategy and goals

24.1    Negotiations overview

24.2    Introduction to framing, strategy and goals

24.3    Framing

24.4    Goals

24.5    Strategy

24.6    Stages of negotiation

24.7    Leveraging your experience

24.8    Planning and tactics

24.9    Tools for establishing a negotiation foundation

24.10  Summary

25  Negotiation styles - positional versus principled negotiations

25.1    Introduction

25.2    Perspective and precedent

25.3    Negotiation options: positional versus principled

25.4    Factors that influence your choice

25.5    Positional versus principled negotiation

25.6    Characteristics of positional negotiating

25.7    Characteristics of principled negotiation

25.8    Recognizing positional negotiation

25.9    Advantages and disadvantages of positional negotiating

25.10  Advantages and disadvantages of principled negotiating

25.11  Non-negotiable issues

25.12  Countering the positional negotiator

25.13  Is principled negotiation worthwhile?

25.14  Summary

26  Negotiating techniques

26.1    Introduction

26.2    Preparation

26.3    Negotiation power

26.4    Abuse of power

26.5    Opening offers

26.6    Physical/logistical considerations

26.7    Connecting with the other side

26.8    What happens if there is no agreement?

26.9    Technological challenges

27  Tactics, tricks and lessons learned

27.1    Introduction

27.2    The last gap

27.3    How to cross the last gap in negotiations

27.4    Competitive tricks and ploys

27.5    Another perspective

27.6    Summary

MANAGE PHASE

28  Manage phase overview

28.1    Introduction

28.2    Manage phase overview

28.3    Contract management activities

28.4    Contract management software

28.5    Contract management resource planning

28.6    Communication

28.7    Summary

29  Transition

29.1    Introduction

29.2    Contract management after signature

29.3    Contract analysis

29.4    What is ‘the contract’?

29.5    Analyzing and understanding terms and conditions

29.6    Core contract elements analysis

29.7    Setting priorities

29.8    Transition meeting

29.9    Transition and organization

29.10  Transition - meeting goals

29.11  Summary

30  Risk and opportunity

30.1    Introduction

30.2    Understanding risk and opportunity

30.3    Understanding and managing opportunity in contracts

31  Monitoring performance, tools and techniques

31.1    Introduction

31.2    The contract management role

31.3    Post award contract management activities

31.4    Status reviews: internal

31.5    Status reviews: external

31.6    Typical issues and problems

31.7    Summary

32  Change control and management

32.1    Introduction

32.2    The realities of change

32.3    Designing a change control procedure

32.4    Contract claim

32.5    When parties do not want a change control and management process

32.6    Case studies

32.7    Summary

33  Dispute handling and resolution

33.1    Introduction

33.2    What is a dispute and what causes a dispute?

33.3    Common operational disputes causing ongoing problems

33.4    What does the contract say about dispute resolution?

33.5    Possible consequences of a formal dispute

33.6    How to avoid a dispute

33.7    Dispute handling and resolution: recovery

33.8    Resolution steps: from least to most complex

33.9    Solutions to disputes: negotiation

33.10  Solutions to disputes: mediation

33.11  Solutions to disputes: arbitration

33.12  Solutions to disputes: litigation

33.13  Case study: an actual dispute and how it was resolved

33.14  Summary

34  Contract close-out and lessons learned

34.1    Introduction

34.2    Types of termination or close-out

34.3    Final acceptance

34.4    Final acceptance: actions

34.5    Expiry of term

34.6    Termination

34.7    Expiry of term or termination: actions

34.8    Close-out - key risks after the delivery of the contract

34.9    Continuing obligations

34.10  Lessons learned

34.11  Summary

Annex A Glossary

Annex B IACCM training

CHAPTER 1

Introduction: contract management – a global context

The concept of trade is a characteristic unique to the human species. With each advance in human communications, the complexity of trade has increased1.

It is this growth in complexity that drove the need for contracts, as a written record to ‘memorialize’ the negotiation that had taken place and which committed the parties to some future exchange of value.

Over time, the knowledge gained from past transactions led to a body of experience which became enshrined in laws or customs, influencing the process by which trading relationships were formed, the parties involved in their formation and the means by which they were recorded.

Today, we are at the beginnings of a new era for communications – a world connected via electronic networks that allow unparalleled speed, enabling relationships to be formed and managed in ways that were never previously envisaged. It is the unknown nature of this networked world that represents a new level of complexity for society as a whole, but especially for the politicians who are charged with its regulation and the business leaders who must navigate through the risks and opportunities that it represents.

A survey by IBM Corporation2 revealed that 79 percent of Chief Executive Officers (CEOs) see ‘increased global complexity’ as a major challenge over the coming years. Of course, mastering complexity has been a key trait of humanity over the centuries, but at this time it has taken on a new intensity. At its heart, according to these CEOs, is the difficulty created by ‘the growth of interconnections and interdependencies’. What do they mean by this – and how does it relate to the world of contract management?