The following commentary is a reprint of an article written by the author for Elevate Services.  It posted on that website Feb 12, 2019 and is reprinted here by permission of the author and his firm, Elevate Services.  

Too many organizations in the world still do not have a solid contract management program in place.  This often pulls hidden risk into the business -- risk that can be easily avoided.  Just becoming aware of this and being willing to take protective measures is an essential first step in the right direction.

In contracts about complicated services, the hardest terms to draft appear in statements of work. SoWs for large projects demand long lists of duties from the vendor. And usually they’re interwoven with supporting tasks from the customer and its other suppliers, along with countless contingencies, assumptions, and exceptions. Putting all those pieces into an effective contract challenges the best drafters. The result is often hundreds of pages of baffling mess. Yet the path to good drafting is simple: write outcome-driven descriptions. In other words, describe the technology the vendor will create or run or both, and then stop typing.

We all negotiate throughout our lives. In fact, it’s often hard to get through a day without haggling over a price, discussing the terms of a job offer with an employer, asking for a pay raise from our superior, persuading our colleagues to support a new business proposal…and so on.  

A survey conducted by the International Association of Contract and Commercial Management (IACCM) shows that only 1 of 10 agreed that contracts are "easy to understand".  And only 17% were satisfied with the agreement process. These numbers are miserable.  Why is it so, what are the consequences, and what can we do about it?

Please note that this article is based upon an analysis of English case law.

I just spent over 6 months on and off negotiating a new liability cap into an existing contract for one of our clients -- countless meetings, reports, presentations, approvals and so forth.  Now the ink is dry, and I’d be amazed if we ever talk about it again during the remaining term of the contract.  

I started my hashtag #strongertogether in 2018 - well I have to admit I “adopted” it because needless to say (and at the time unbeknownst to me) it already existed elsewhere in many different contexts, particularly around areas such as sport and broader diversity issues. I’m certainly not precious or territorial about its use. Indeed, it is heartening to see so many people and organizations recognising the strength that comes from collaboration, from working together to achieve a common goal.

You want your contracts to deliver value to your business, right? Who wouldn’t?  But do you know how many contract and commercial professionals fail to realize that collaboration with suppliers is essential?  The first priority is to plan specific strategic sourcing strategies to figure out what we will do ourselves and what we want from suppliers.    

Without a doubt, contracts are the most important risk avoidance management and mitigation tools organizations sign. Ironically, many top executives know little about contracts and how they work to support the organization’s goals. Instead, many choose to delegate the responsibility for identifying and managing those risks to others often with few, if any, questions asked.