Contract management

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Contract management or contract administration is the management of contracts made with customers, vendors, partners, or employees. Contract management includes negotiating the terms and conditions in contracts and ensuring compliance with the terms and conditions, as well as documenting and agreeing on any changes or amendments that may arise during its implementation or execution. It can be summarized as the process of systematically and efficiently managing contract creation, execution, and analysis for the purpose of maximizing financial and operational performance and minimizing risk. [1]

Contents

Common commercial contracts include purchase orders, sales invoices, utility contracts, letters of engagement for the appointment of consultants and professionals, and construction contracts. Complex contracts are often necessary for construction projects, goods or services that are highly regulated, goods or services with detailed technical specifications, intellectual property (IP) agreements, outsourcing and international trade. Most larger contracts require the effective use of contract management software to aid administration among multiple parties.

A study published in 2007 found that for "42% of enterprises ... the top driver for improvements in the management of contracts [was] the pressure to better assess and mitigate risks" and additionally, "nearly 65% of enterprises report that contract lifecycle management (CLM) has improved exposure to financial and legal risk". [2]

Contracts

HM Prison Altcourse in Liverpool, operated by G4S under a UK government contract HMP Altcourse.jpg
HM Prison Altcourse in Liverpool, operated by G4S under a UK government contract

A contract is a written or oral legally-binding agreement between the parties identified in the agreement to fulfill the terms and conditions outlined in the agreement. A prerequisite requirement for the enforcement of a contract, amongst other things, is the condition that the parties to the contract accept the terms of the claimed contract. Historically, this was most commonly achieved through signature or performance, but in many jurisdictions - especially with the advance of electronic commerce - the forms of acceptance have expanded to include various forms of electronic signature. [3]

Contracts can be of many types, e.g. sales contracts (including leases), purchasing contracts, partnership agreements, trade agreements, and intellectual property agreements.

Contract management activities

The business-standard contract management model, as employed by many organizations in the United States,[ citation needed ] typically exercises purview over the following business disciplines:

Phases of contract management

Contract management can be divided into three phases: [5]

In the post-award or "downstream" phase, [6] some organisations have a contract management team, others may require operational managers to include the management of contracts within their role. [7] The Chartered Institute of Procurement & Supply (CIPS) suggests that the requirement for dedicated contract management depends on contract value, contract length, complexity of services and level of risk, although in the initial stages of a contract, the assessment of risk and the implementation of core contract management processes may be appropriate tasks for a dedicated contract manager. [7] CIPS also notes that in some cases the procurement team may have an extended role in maintaining contract management. Contracting for services may be more complex than supply-only contracts and therefore require closer management. [7]

Contract variation

There may be occasions during the post-award phase when what is agreed in a contract needs to be changed later on. A number of bases may be used to support a subsequent change, so that the whole contract remains enforceable under the new arrangement.

A change may be based on:

Contract compliance/governance

During the post-award phase, it is important to ensure that contract conditions and terms are met, but it is also critical to take a closer look for items such as unrecorded liabilities, under-reported revenue or overpayments. If these items are overlooked, the margin may be negatively impacted. A contract compliance audit will often commence with an opportunity review to identify the highest risk areas. Having a dedicated contract compliance (and/or governance) program in place has been shown to result in a typical recovery of 2-4% and sometimes as high as 20%. [8]

Current thinking about contract management in complex relationships is shifting from a compliance “management” to a “governance” perspective, with the focus on creating a governance structure in which the parties have a vested interest in managing what are often highly complex contractual arrangements in a more collaborative, aligned, flexible, and credible way. In 1979, Nobel laureate Oliver Williamson wrote that the governance structure is the “framework within which the integrity of a transaction is decided”. He further added that “because contracts are varied and complex, governance structures vary with the nature of the transaction”. [9]

A collaborative governance framework has four components: [10]

Contracts and trust

Another dimension of contract management relates to the interplay between contracts and trust. In particular, management scholars have discussed the nature of the relationship between contract and trust development. [11] On the one hand, some have argued that contracts and trust would substitute each other; that is, the use of one mechanism decreases the advantages of the other. [12] [13] On the other hand, others suggest contract and trust complement each other; that is, the use of one increases the benefits of using the other mechanism. [14] [15]

Managerial functions

In 2008, the International Association for Contract and Commercial Management (IACCM, now World Commerce & Contracting) began a project intended to clarify the role of a contract manager, which has since been updated on several occasions. This work identified that among contract managers themselves, there is a "widespread belief that the title (and its variants, such as Commercial Manager) masks massive variations in job role, status and responsibilities". However, the IACCM's research found indications that "the core responsibilities of Contract Managers (and by deduction, Contract Management Departments) are very similar" and applied across a range of tasks from bid preparation and contract negotiation to a "middleman" role between an organization's employees and its customers, and compliance and ensuring contract close-out, extension or renewal at its end point. [16]

Scholars in business and management have paid attention to the role of contracts in managing relationships between individuals or between organizations. In particular, contracts work as instruments of control and coordination. [17] On the one hand, contracts can moderate the risks of exploitation or misappropriation by an opportunistic partner. On the other hand, contracts can help foster communication and information sharing between parties.

Public sector contract management

In the UK public sector, concerns were raised by the House of Commons Public Accounts Committee in 2009 regarding resourcing and training in relation to contract management. The committee reported that

No commercial director/head of procurement rated the level of resources allocated to the management of their major contracts as 'good', and 22% of contract managers considered they did not have time to perform their responsibilities well. Most contract managers had undertaken relevant training, although 60% of organisations did not provide a structured training programme for their staff. [18]

Contract management standards were published in 2014 by the Crown Commercial Service, and have been updated periodically. [19] These standards were developed as a result of a 2013 "Cross Government Review of Major Contracts", [20] commissioned by the Cabinet Office to assess the management of major contracts held by the companies G4S and Serco, [21] and led by Bill Crothers, the government's Chief Procurement Officer. Having highlighted previous failings, by September 2014 the UK's National Audit Office (NAO) felt that the government was "starting to improve how it manages its contracts", but important improvement work remained to be done. [22] In December 2016 the NAO re-published a good practice contract management framework which had been first published in 2008 [21] with the help of the Office of Government Commerce, then part of HM Treasury. The NAO "believed", based on practitioner feedback, that this framework was "one of the best references for the basic tasks necessary for good contract management". [23]

As of April 2021 the UK government has in place a "Contract Management Capability Programme" aiming to develop the skills of government staff involved in contract management roles. [24]

In the United States, the National Contract Management Association and the National Association of Government Contractors offer certification in the skills required for government contract management. [25]

See also

Related Research Articles

A public–private partnership is a long-term arrangement between a government and private sector institutions. Typically, it involves private capital financing government projects and services up-front, and then drawing revenues from taxpayers and/or users for profit over the course of the PPP contract. Public–private partnerships have been implemented in multiple countries and are primarily used for infrastructure projects. Although they are not necessary, PPPs have been employed for building, equipping, operating and maintaining schools, hospitals, transport systems, and water and sewerage systems.

Procurement is the process of locating and agreeing to terms and purchasing goods, services, or other works from an external source, often with the use of a tendering or competitive bidding process. The term may also refer to a contractual obligation to "procure", i.e. to "ensure" that something is done. When a government agency buys goods or services through this practice, it is referred to as government procurement or public procurement.

Purchasing is the procurement process a business or organization uses to acquire goods or services to accomplish its goals. Although there are several organizations that attempt to set standards in the purchasing process, processes can vary greatly between organizations.

A business alliance is an agreement between businesses, usually motivated by cost reduction and improved service for the customer. Alliances are often bounded by a single agreement with equitable risk and opportunity share for all parties involved and are typically managed by an integrated project team. An example of this is code sharing in airline alliances.

<span class="mw-page-title-main">Business-to-business</span> Commercial transaction between businesses

Business-to-business is a situation where one business makes a commercial transaction with another. This typically occurs when:

Construction management (CM) aims to control the quality of a project's scope, time, and cost to maximize the project owner's satisfaction. It uses project management techniques and software to oversee the planning, design, construction and closeout of a construction project safely, on time, on budget and within specifications.

Project finance is the long-term financing of infrastructure and industrial projects based upon the projected cash flows of the project rather than the balance sheets of its sponsors. Usually, a project financing structure involves a number of equity investors, known as 'sponsors', and a 'syndicate' of banks or other lending institutions that provide loans to the operation. They are most commonly non-recourse loans, which are secured by the project assets and paid entirely from project cash flow, rather than from the general assets or creditworthiness of the project sponsors, a decision in part supported by financial modeling; see Project finance model. The financing is typically secured by all of the project assets, including the revenue-producing contracts. Project lenders are given a lien on all of these assets and are able to assume control of a project if the project company has difficulties complying with the loan terms.

In the context of negotiations, a framework agreement is an agreement between two parties that recognizes that the parties have not come to a final agreement on all matters relevant to the relationship between them, but have come to agreement on enough matters to move forward with the relationship, with further details to be agreed to in the future.

In the United States, the processes of government procurement enable federal, state and local government bodies in the country to acquire goods, services, and interests in real property. Contracting with the federal government or with state and local public bodies enables interested businesses to become suppliers in these markets.

A business partner is a commercial entity with which another commercial entity has some form of alliance. This relationship may be a contractual, exclusive bond in which both entities commit not to ally with third parties. Alternatively, it may be a very loose arrangement designed largely to impress customers and competitors with the size of the network that the business partners belong to.

Government procurement or public procurement is undertaken by the public authorities of the European Union (EU) and its member states in order to award contracts for public works and for the purchase of goods and services in accordance with principles derived from the Treaties of the European Union. Such procurement represents 13.6% of EU GDP as of 2018, and has been the subject of increasing European regulation since the 1970s because of its importance to the European single market.

<span class="mw-page-title-main">Government procurement</span> Purchases by a government body

Government procurement or public procurement is the procurement of goods, services and works on behalf of a public authority, such as a government agency. Amounting to 12 percent of global GDP in 2018, government procurement accounts for a substantial part of the global economy.

Commercial management is "the identification and development of business opportunities and the profitable management of projects and contracts, from inception to completion".

The New Engineering Contract (NEC), or NEC Engineering and Construction Contract, is a formalised system created by the UK Institution of Civil Engineers that guides the drafting of documents on civil engineering, construction and maintenance projects for the purpose of obtaining tenders, awarding and administering contracts. The NEC contract is widely used in the United Kingdom. There have been attempts, largely unsuccessful, to introduce the NEC contract into both Australia and New Zealand from at least 1994 but the contract remains relatively obscure in both countries.

A relational contract is a contract whose effect is based upon a relationship of trust between the parties. The explicit terms of a relational contract are an outline: implicit terms and understandings that determine the behaviour of the parties. Relational contract theory was originally developed in the United States by the legal scholars Ian Roderick Macneil and Stewart Macaulay. Richard Austen-Baker has more recently proposed a developed version of relational contract theory, called "comprehensive contract theory".

The Agile fixed price is a contractual model agreed upon by suppliers and customers of IT projects that develop software using Agile methods. The model introduces an initial test phase after which budget, due date, and the way of steering the scope within the framework is agreed upon.

Contract farming involves agricultural production being carried out on the basis of an agreement between the buyer and farm producers. Sometimes it involves the buyer specifying the quality required and the price, with the farmer agreeing to deliver at a future date. More commonly, however, contracts outline conditions for the production of farm products and for their delivery to the buyer's premises. The farmer undertakes to supply agreed quantities of a crop or livestock product, based on the quality standards and delivery requirements of the purchaser. In return, the buyer, usually a company, agrees to buy the product, often at a price that is established in advance. The company often also agrees to support the farmer through, e.g., supplying inputs, assisting with land preparation, providing production advice and transporting produce to its premises. The term "outgrower scheme" is sometimes used synonymously with contract farming, most commonly in Eastern and Southern Africa. Contract farming can be used for many agricultural products, although in developing countries it is less common for staple crops such as rice and maize.

<span class="mw-page-title-main">Infrastructure Concession Regulatory Commission</span> Agency of the Federal Government of Nigeria

The Infrastructure Concession Regulatory Commission (ICRC) is an agency of the Federal Government of Nigeria responsible for the development and implementation of the Public-Private Partnership (PPP) framework for the provision of infrastructure services.

At around £290 billion every year, public sector procurement accounts for around a third of all public expenditure in the UK. EU-based laws continue to apply to government procurement: procurement is governed by the Public Contracts Regulations 2015, Part 3 of the Small Business, Enterprise and Employment Act 2015, and the Public Contracts (Scotland) Regulations of 2015 and 2016. These regulations implement EU law, which applied in the UK prior to Brexit, and also contain rules known as the "Lord Young Rules" promoting access for small and medium enterprise (SMEs) to public sector contracts, based on Lord Young's Review Growing Your Business, published in 2013.

References

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  2. "Contract Management: Optimizing Revenues and Capturing Savings". Aberdeen Group. May 2007. Retrieved 2008-07-10.
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  4. Marikar, Q., The cost of poor contract management – are you using all tools at your disposal?, accessed 31 May 2021
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  6. Chartered Institute of Procurement & Supply (2013), Contract Management Guide, p. 24, accessed 31 July 2021
  7. 1 2 3 Chartered Institute of Purchasing & Supply (2010), Guide to Contract Management, p. 13
  8. 2008 Building Energy Efficiency Standards. California Energy Commission.
  9. Williamson, Oliver E.|1979|"Transaction-Cost Economics: The Governance of Contractual Relations"|Journal of Law and Economics: Vol. 22: No. 2, Article 3|accessible at: http://chicagounbound.uchicago.edu/jle/vol22/iss2/3
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  12. Ghoshal, Sumantra; Moran, Peter (1996). "Bad for Practice: A Critique of the Transaction Cost Theory". The Academy of Management Review. 21 (1): 13. doi:10.2307/258627. JSTOR   258627.
  13. Lui, Steven S.; Ngo, Hang-Yue (2004). "The Role of Trust and Contractual Safeguards on Cooperation in Non-equity Alliances". Journal of Management. 30 (4): 471–485. doi:10.1016/j.jm.2004.02.002. ISSN   0149-2063. S2CID   144788583.
  14. Ryall, Michael D.; Sampson, Rachelle C. (2009). "Formal Contracts in the Presence of Relational Enforcement Mechanisms: Evidence from Technology Development Projects". Management Science. 55 (6): 906–925. doi:10.1287/mnsc.1090.0995.
  15. Zhou, Kevin Zheng; Xu, Dean (2012). "How foreign firms curtail local supplier opportunism in China: Detailed contracts, centralized control, and relational governance". Journal of International Business Studies. 43 (7): 677–692. doi:10.1057/jibs.2012.7. ISSN   0047-2506. S2CID   167843632.
  16. IACCM, The Role of a Contract Manager, updated 24 January 2014, accessed 14 May 2021
  17. Reuer, Jeffrey J.; Ariño, Africa (2007). "Strategic alliance contracts: dimensions and determinants of contractual complexity". Strategic Management Journal. 28 (3): 313–330. doi:10.1002/smj.581. ISSN   1097-0266.
  18. House of Commons Public Accounts Committee, Central government's management of service contracts: Summary, published 28 April 2009, accessed 29 July 2022
  19. Crown Commercial Service, Commercial capability: contract management standards last updated 8 February 2021, accessed 10 April 2021
  20. HM Government, Cross Government Review of Major Contracts: Summary of Findings and Recommendations endorsed by the Oversight Group, Autumn 2013, accessed 29 July 2022
  21. 1 2 Crown Commercial Service, Contract management framework summary, updated 8 February 2021, accessed 10 April 2021
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