To realise the full benefits of collaborative contracts, we need the right commercial model. If we rely on transactional ‘boilerplate’ contract terms and conditions, then we are unlikely to achieve the full range of collaborative benefits that we have discussed in earlier blogs. It is not just the contractual terms that we need to explore but also the market engagement strategy as well. That is, how do buyers and suppliers interact before contract signature. This blog subsequently explores strategies for aligning commercial models to best realise collaborative outcomes.
Do We Need a Contract At All?
Businessmen often prefer to rely on “a man’s word” in a brief letter or handshake or “common honesty and decency” – Stewart Macaulay (1963).
In Stewart Macaulay’s seminal paper on non-contractual relationships, he asks the question, “why do businesses use contracts in light of its success without it”. The hypothesis offered by MacCaulay is that contracts and contract law are irrelevant since there are many non-contractual sanctions available to buyers and suppliers to achieve the required business outcomes. Why then do we need contracts to pursue collaborative contracts where the relationship should be underpinned by trust, a shared vision, and a desire for long term relationships?
Relying on trust and good-will alone is likely to lead to failure. Contracts are tools to communicate and manage the obligations of parties in concert with the desired collaborative behaviours. We also need contracts to provide a level of certainty to establish insurance requirements, seek financial approvals, and meet statutory obligations (both within the public and private sector). To pursue a collaborative venture without a contract is a very dangerous proposition and could result in the parties to the relationship accepting significant liabilities, especially with the imposition of the law of equity and quasi-contract obligations.
Commercial Frameworks Designed to Drive Collaboration
Max Abrahamson’s principles can be summarised by the often-used commercial tenet of ‘transfer the risk to the part best able to manage the risk’. For many organisations though, this principle is often ignored. The temptation to transfer significant risks to suppliers is very alluring, especially where buyers command significant market power. Such strategies will often erode value for the following reasons:
- Suppliers will load their contract prices with substantial contingencies or management reserve to deal with risks. These costs are often passed onto the buyer whether the risk eventuates or not,
- Unreasonable risk allocation may result in fewer bids and lessened competition,
- Where inappropriate risks are transferred to suppliers, there may be a perverse incentive for suppliers to compromise on quality or behave opportunistically (e.g. bid low and make profit on variations), and
- In complex projects, buyers may not have ‘clean hands’ and may not be able to effectively seek remedies under the contract where risks materialise.
To illustrate the significant problems with inappropriate risk
allocation, a research report by the Construction Industry Institute identified
Inappropriate allocation of
risk resulted in a 14 percent increase in costs to projects. Of this amount,
the customer was liable for 78 percent of the cost increase.
The other key problem we face with risk transfer in contracts is that the contract may only effectively deal with known risks. That is, uncertainty may not be adequately addressed. If we want to pursue collaborative outcomes, then we naturally need to adopt a more collaborative approach towards risk management.
Commercial Strategies That Encourage Collaboration
We know that transactional boilerplate contracts that aim to shift the maximum amount of risk to suppliers will thwart collaboration, but what strategies can we adopt to maximise collaborative outcomes? Whilst not exhaustive, the following themes emerge in successful collaborative ventures.
Early industry engagement. Early and holistic
identification of risks and opportunities will foster collaboration and ensure
subsequent risk allocation and sharing strategies are fair and equitable.
Prudent and Equitable Risk allocation. To encourage
collaboration, we should not place too much risk on suppliers. Where substantial contract value is at
risk then suppliers will be more likely to be risk averse and will not
effectively pursue innovation and ‘best for project’ outcomes. Consistent with
a shared vision, all parties should have reasonable ‘skin in the game’.
Joint Management and Ownership. Joint management and ownership does not mean that the parties should embark upon an incorporated joint venture or alliance agreement. Joint management means that the parties work collaboratively on a ‘best for program basis’ to deliver joint outcomes. This may involve joint decision making for key areas, joint risk management, co-location of key team members, and shared systems (which ensure there is a single source of truth).
Transparency. Collaboration is far more likely when
parties have full visibility of risk, issues, and opportunities throughout the contract
lifecycle. Open book financial reporting, and shared risk logs all support the
development and maintenance of trust.
Transparency also supports the collaborative contracting aim of no
Effective Disputes and Issues management. A commercial framework is needed that ensures disputes and issues are resolved at; the lowest level, quickly, and equitably.
If we want to sabotage our efforts to drive collaborative
outcomes and erode value then I would recommend the following commercial strategy:
- Do not engage with industry at any stage. Ignore industry’s wealth of knowledge and their understanding of the risks in their core business.
- Insist upon ‘unlimited liability’ for all risks and place as much of the contract value at risk as possible.
- Insist upon unilateral, unfettered rights such as; ownership of all supplier background Intellectual Property, step-in /subrogation rights for minor breaches, and an on-demand performance guarantees.
- In the tendering stage, apply onerous conditions of tender on suppliers (with sanctions for breach) but at the same time claim that the customer is not bound by this same ‘tender process’.
- Make sure the tender evaluation criteria places a very high weighting on price and ensure that the contract duration is for as short a term as possible.
- Ensure all issues and disputes are resolved through litigation.
If we wish to pursue effective collaboration and reap the
known benefits of collaborative contracts, then we must select an appropriate
commercial model. Having the right
culture, motivation, leadership and commitment to collaboration alone is
insufficient. Trying to apply a collaborative framework with a transactional,
arms-length commercial model is akin to putting ‘lipstick on a pig’.
Macaulay, “Non-Contractual Relations in Business: A Preliminary Study American
Sociological Review” 1 February 1963, Vol.28(1), p55.
Ibid., p 62.
Abrahamson, “Risk Management” (1984) 1 (3) International Construction Law
Review 241, 244.
Research Report RR210-11 “Contracting to Appropriately Allocate Risk” (2007)
summarised in Altman R., Cruz J., Halls, P “One-sided Contracts: Do They Pay
Off?” ACCL Vol 11 1 (2017) p 169.
This includes both ontological uncertainty (the unknown unknowns) and epistemic
uncertainty (risks are known but likelihood and consequence cannot be