Collaboration and Chaos

Chaos is found in greatest abundance wherever order is being sought.  It always defeats order, because it is better organised.” – Terry Pratchett

M. Grandjean, Social Network Analysis Visualisation (2014)

Introduction

Ashby’s law of requisite variety tells us that if we want to control a system, then we must control at least as many states as the system we wish to control. In other words, ‘variety can destroy variety’.[1]  In the contracting domain, Ashby’s law creates significant challenges. We often look to the contract as a tool for formalising and implementing control but how effective are such tools in complex environments?  For simple, short term procurement activities there may be little variety or states of the system for us to manage or influence. In such circumstances, simple transactional contracts may offer sufficient input variety to deal with modest change and emergence.  When we move to more complex, long term arrangements with multiple, influential stakeholders then the quantum of variety in the system can increase exponentially. In such cases, crafting a contract with a repertoire of responses to deal with all these possible states or variety becomes a Herculean task.  This is where we need to look towards collaboration and new ways of delivering outcomes.

The Illusion of Contractual Protection

We like to think of our contracts as ‘iron clad’ mechanisms to protect our commercial positions, limit (or eliminate) liability, and clinically transfer risks to other parties.  Such notions though are illusory for many reasons.  Flydlinger, Hart, and Vitasek observe that contracts often create economic ‘hold-up’ behaviours where parties are unwilling to optimise outcomes:

The fact that virtually all contracts contain gaps, omissions, and ambiguities—despite companies’ best efforts to anticipate every scenario—only exacerbates hold-up behaviour.[2]

Such gaps and omissions will only increase in complex environments where we must deal with long term horizons, and multiple parties.  The variety associated with complex programs makes the so called ‘iron clad’ contract a myth. This is precisely what Ashby was talking about in the following statement (emphasis added):

               When the variety or complexity of the environment exceeds the capacity of a system                (natural or artificial) the environment will dominate and ultimately destroy that system.[3]

Whilst we would not allow circumstances to completely ‘destroy our systems’, we often destroy commercial value through:

  1. Excessive and inefficient contract change proposals,
  2. Wasted time in negotiations,
  3. Increased disputes and issues management,
  4. Sub-optimal delivery mechanisms,
  5. Increased and unnecessary contract contingency fees, and
  6. Under and over-insurance.

We also need to recognise there are very long preparation times and high development costs for these complex contracts. Many of these complex contracts are unfit for purpose.  Attempting to deal with all possible end-states or variety is not the answer. What we can do though is attack the problem from two perspectives. Firstly, we can limit variety within the system and secondly, we can increase our repertoire of responses (input variety).

Limiting Variety in the System

There are many ways we can limit variety in the systems we are attempting to control. In the commercial space we can do this by changing jurisdictions, removing the influence of stakeholders, and limiting the scope (and risk) of what we are trying to achieve.  In our previous blog on agile procurement, we also explored how we can aim for incremental delivery rather than a ‘big bang approach’.  Keeping our options open and not getting locked into a specific solution also helps us keep variety in check.  This includes the promotion of open architectures[4] and avoiding proprietary systems. 

Collaborative approaches also constrains variety in our systems. Where buyers and suppliers work collaboratively towards common goals then diverging interests are far less likely to create challenges.  In other words, where the parties focus on the question “what is in it for we”[5] then the focus is on fixing the problem and not the blame.  This means there is far less ‘noise’ in the system that would normally create unnecessary distractions. By default, we are limiting variety in the system or limiting the influence of that variety.

Increasing Our Span of Control

Maslow’s observation that, “if all you have is a hammer, everything looks like a nail” [6] is an axiom that regularly applies to contract lawyers.  The lawyer’s toolbox of responses is typically to claim that a breach has occurred and enforce damages. Black letter lawyers may also claim that the other party has repudiated the contract, they may threaten or seek termination, or pursue other similar legal sanctions to control that other party.  These control levers are limited in their application, are often ineffective, and carry great risks should they be used.  Contrast this approach to collaborative contracts that bring buyers, suppliers, and critical stakeholders inside the tent. In such circumstances, we have a far great range of responses that include working together to deliver mutually beneficial outcomes.  No longer do we need to rely on the sticks of control[7]  as all parties are working cooperatively towards common goals. We now have a combined range of responses that is far greater than that of any one individual organisation.  Implementing such approaches though requires leaders to possess the necessary mental agility and flexibility to deal with variety in our complex systems, as observed by Goss et al:

Applying the law of requisite variety to leadership in the implementation of change implies that leadership sources must have a repertoire of responses that can successfully deal with the variety of situations they encounter during implementation.[8]

Conclusions

We often rely on contracts to control outcomes but in complex environments, ‘black letter law’ control systems are often ineffective and are often constrained by Ashby’s law of requisite variety. Furthermore, control kills invention, learning, and commitment.[9]  To deal with complexity, collaborative approaches can both constrain variety in our systems and offer us a far greater range of responses when compared to transactional, arms-length contracts.


[1] Ashby, W.R. An Introduction to Cybernetics (1956), p 206.

[2] David Frydlinger, Oliver Hart, and Kate Vitasek ‘A New Approach to Contracts How to build better long-term strategic partnerships’ Harvard Business Review (Sep–Oct 2019).

[3] Ashby, opcit.

[4] Santiago J ‘Applicability of the Law of Requisite variety in Major Military System Acquisition’ (2017) p 60,76 at https://apps.dtic.mil/dtic/tr/fulltext/u2/1046519.pdf

[5] David Frydlinger, Oliver Hart, and Kate Vitasek ‘A New Approach to Contracts How to build better long-term strategic partnerships’ Harvard Business Review (Sep–Oct 2019).

[6] A Maslow, Psychology of Science (1966).

[7] I Ayers, Carrots and Sticks (2010).

[8] Tracy Goss, Richard T. Pascale, and Anthony Athos ‘The Reinvention Roller Coaster: Risking the Present for a Powerful Future’ Harvard Business Review (1993).

[9] Ibid.

This entry was posted in How to Collaborate on by .

About John Davies

John is a recognised authority in collaborative contracts, relational contracts, and novel procurement options. John has conducted extensive research into alliance contracts and governance frameworks from both the buy side and sell side. John has authored collaborative contract better practice guides, performance-based contract evaluation guides, and tender evaluation guidelines for major programs. You can find his CV at LinkedIn.

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