Category Archives: Risk Management

For Good Outsourcing Contracts, Keep Litigation in Mind

A recent article in the Sourcing Interests Group newsletter that described “a litigation perspective on outsourcing relationships” is right when it states that a litigation perspective will improve your results with outsourcing agreements. Given that outsourcing agreements are typically long in duration, it is important to craft the best agreement possible. A litigation perspective will help. Why?

Without a litigation perspective, a typical outsourcing agreement is:

  • general
    Since it is impossible to predict every circumstance that may arise, most drafters of outsourcing agreements stick to general terms, broad service descriptions, and generic service level improvement requirements. This is bad because generality results in uncertainty, uncertainty breeds disagreement, and disagreements threaten the stability of outsourcing relationships.
  • full of vague terms
    Such as material breach; gross negligence; willful misconduct; direct, indirect, consequential damages; best efforts; generally accepted standards; and commercially reasonable efforts which sound very legal but which are typically unclear in case law.
  • sparse (or devoid) of communication protocol
    While most outsourcing agreements will contain clauses for dispute resolution, they will be sparse, or devoid, of clauses describing proper communication protocols for communicating, addressing, and responding to issues as they arise. Disputes only arise when issues are not adequately addressed as they arise.

However, with a litigation perspective, a typical outsourcing agreement is:

  • specific
    While the agreement will still contain general clauses for modifying procedures to deal with unexpected situations, it will contain provisions for dealing with situations that can be anticipated in advance, such as a spike in data processing, the inability for the service provider to handle increased order processing, or a change in regulations that restrict a service provider from performing one or more functions. For example, in the first case, if data processing requirements increase beyond a certain threshold in a given month, the organization will pay overtime rates to get it done. If the service provider can’t handle a rapid spike in customer orders, the organization will have the right to bring on a second service provider to assist. And if an unforeseen change in regulations preclude part, or all, of the functions from being performed by the service provider, the organization may cancel the affected parts, or all, of the agreements, without notice and penalty.
  • built on clearly defined terminology
    Instead of just saying that the service provider is liable for “direct damages”, the agreement will say that the service provider is liable for “direct damages, which include but are not limited to the additional cost of securing an alternative service provider” or instead of just saying the service provider is responsible for damages that result “willful misconduct”, which may or may not include a deliberate breach of contract, the agreement will say the service provider is responsible for damages that result from “willful misconduct, which include but are not limited to intentional tortious acts”.
  • clear on communication protocols
    The agreement will contain a communication protocol where the organization can officially notify the service provider of issues that arise, and response protocols for the service provider to officially respond to the issues.

Communication protocols are important as they provide official communication trails and a way to “shape the record”. If an official dispute arises, and goes to arbitration or court, and the organization does not have a clear record of events, that includes correspondence officially notifying the service provider of a(n impending) breach, then its chances of winning its case (and receiving damages) are not good.

Moreover, if the organization maintains a good “real-time” written record of events, that includes official communications that follow the protocol, it has a better chance of resolving the disputes quickly, cost-effectively, and with minimal disruption as a provider is not going to want to risk an official dispute when the client organization has a strong case.

Considering that termination of the relationship likely will cause both parties serious economic disruption, its important to draft the best agreement possible. The best way to do this is to keep litigation in mind and consider how you would prove the elements of a claim if a dispute were to arise as this will lead to the creation of clear and unambiguous clauses.

There’s More To Risk Than Natural Disasters

As per this recent article in Industry Week on how “manufacturers must brace for global uncertainty and risk”, the following, entirely predictable, events can be just as devastating to an organization’s supply chain if not planned for.

  • Rapid Growth
    What if sales double overnight? Can the supply chain keep up?
  • Facility Expansion / Opening
    Can the organization ramp up supply, staff, and logistics fast enough to maintain productivity levels?
  • Massive Churn in Product Offerings
    If the organization has to continually offer new versions of products, or rapidly expand its product offerings, can the supply chain adapt quickly enough?
  • New Customers that Account for Double-Digit Percentage Volume
    Can the supply chain keep up? Can it provide any new services that will be required at the agreed upon service levels?
  • Substantial Changes in the Supplier Base
    If current suppliers go out of business, can new suppliers be incorporated into the supply chain fast enough? Will new suppliers be able to meet demand? If new suppliers enter the space, will the organization be able to identify them and take advantage of new technologies they offer?
  • New IT Systems
    A failed IT implementation can bring down a multi-billion dollar company. A poor IT implementation can cost millions and stop production in its tracks. It’s rare occurence when an IT system upgrade doesn’t result in at least some downtime. IT system implementations and upgrades need to be planned for carefully.

So, if your Supply Management organization is not yet thinking about risk on a daily basis, maybe it should be.

Four Good and One Bad Suggestion For Preparing Your Supply Chain for Volatility

A recent article over on ChiefExecutive.net on Volatility: Predictions and Prescriptions presented five suggestions for dealing with the current market volatility that guarantees both minor and massive disruptions will continue to occur on a global scale, impacting your supply chain(s) to various degrees as they occur. Four of them were quite good. One wasn’t. Since it is important for a supply management organization to face the reality of increased volatility and plan for it to mitigate its risk, this post will review the suggestions presented in the article. Disruptions are going to happen. The only unknown is how bad the disruption will be. Since a disruption is always worse for an unprepared organization, it’s important that an organization do everything it can to be prepared.

The organization should start by:

  1. Expecting Disruptions
    They’re going to happen. Some you will predict. Some you won’t. The more flexible the organization is, the more capable it will be in dealing with the disruption. Plus, an organization that expects to be disrupted won’t be shocked by a disruption and won’t have the additional disruption of having to deal with the emotional impact of not being prepared for the initial disruption.
  2. Feeling the Malaise
    An organization that expects disruptions will, at first, feel uneasy and weary knowing that at least some of its best laid plans will come to ruin. But once the organization gets used to the feeling, and begins to savor it, the preparedness will save the organization in its hour of need because the disruption won’t seem so bad.

The the organization should take heed of the following four suggestions:

  1. Simulate Scenarios
    Once the organization expects disruptions, it can “game plan” how to deal with them. It can identify the different kinds of disruptions that can occur and scope out a sequence of responses to each. And although some disruptions can never be anticipated and “game planned”, if similar disruptions have been addressed, the organization will have a starting plan that should be workable with only a few minor tweaks.
  2. Diversify Geographies
    Many disruptions, such as natural disasters and political turmoil, are localized to a region or a country. A supply chain that multi-sources key products and services from different regions and countries should be in better shape to withstand a shock of a product no longer being available from a supplier in a certain region due to a natural disaster or political disturbance.
  3. Diversify Products and Services
    Not only should geographies be diversified, but so should raw materials, products, and services when applicable. Although the former will often be hard to diversify, as certain raw materials will not be substitutable, services are very easy to diversify and should be.
  4. Deleverage Balance Sheets
    While a leveraged supply chain can generate great returns in good markets, it can be downright risky in bad markets. In a volatile market, it is often safer to sacrifice some ROE in return for safer debt/equity ratios (or inventory/equity) over the longer term.

However, the organization should not listen to the fifth and final suggestion, which is downright destructive:

  1. Enable Rapid Downsizing
    Supply Management is getting more knowledge-intensive by the day and we’re in a serious talent crunch. The last thing you do is get rid of good people, especially those that can often generate savings of 10 to 100 times their annual salary on a single buy. While high fixed costs can be dangerous in times of reduced cash flow, it is much better to get rid of assets (and rent them back if you need to) then to get rid of good people.

Cost is Just Another Component of Risk (Bonus NPX Take Away 3)

One of the most useful, and possibly controversial take aways, from the NPX exchange put on by The Mpower Group is that a Next Practice organization should not have cost as part of its value equation as a focus on cost has not only not served the Supply Management community well, but has destroyed incalculable value over the years. This is especially true in high-value or strategic categories.

Cost should be viewed as just another component risk, and in particular, the risk of cost increase beyond an acceptable level is what the organization should be focussed on. Furthermore, once the organization has established that cost is in an acceptable band, the organization should remove cost from the equation entirely in high value and strategic categories.

The reality is that for some categories, a +/- of up to 5% is insignificant when compared to the critical factors of stability of supply, quality, and flexibility. Consider the Apple iPad. While it is obviously in Apple’s best interest to drive down cost as much as possible, it’s more important that Apple be able to guarantee supply, quality, and flexibility in its supply chain. The extra savings of $2 on each unit will not make up for the loss in profit if Apple fails to deliver on 100,000 orders. Nor will it make up for the warranty costs if the quality drops to the point where Apple has to make 25% more repairs under service contract.

So if you really want to focus on value, band cost, and then remove it from the top-level value equation altogether as cost control then becomes simply another component of risk management in the overall value equation. The organization just might see better results in its high-value and strategic categories.

Comments?

Is Piracy About to Become Standard Operating Practice in Somali Government?

As per this article over on MSNBC which headlined that a “US pilot [was] jailed for 15 years over pirate ransoms”, six foreigners have been jailed on charges of illegally bringing money into the country (to pay ransoms for the release of vessels held by pirates), carrying cash intended to pay ransoms, and landing in Mogadishu without the correct papers. Their sentence is a 15 year imprisonment and a $15,000 fine each, as reported by the Mogadishu’s court judge Hashi Elmi.

However, according to the article, Elmi said the six might be able to buy their freedom. “The men can appeal and if they ask to pay more instead of (remaining in) prison then we shall see and take our decision”, Elmi said.

Hmmm. Allow pirates to flourish in the north, knowing that they are demanding multi-million dollar ransoms. Wait for foreigners to send in millions of dollars of cash in an effort to free their ships and their people without the right papers. When they do, seize the plane, the cash inside, and the pilots and then charge them for not having the right papers, for illegally bringing money into the country, and for attempting to pay bribes. Then convict the pilots to ridiculous sentences and give them petty fines in comparison. Then say they might be able to reduce their sentence or even buy their freedom in exchange for a bigger fine. Almost sounds to me like the government has figured out they can cash in on the rampant piracy in their country too by passing laws to make bribes illegal, insuring planes suspected of carrying cash never have the right papers, ordering customs officials to deem large cash imports illegal, and ordering the courts to hand down ridiculously harsh sentences in hopes that the foreigners will buy their freedom. Then, they not only get millions of dollars in seized ransom money, but hundreds of thousands, or millions more, in fines.

So what does this mean for your supply chain? Even if it costs more logistics wise, avoid the Somali coast at all costs. Take a longer route. It’ll be cheaper than air dropping a ransom when your vessel gets commandeered, and much cheaper than buying the freedom of your people if they get caught trying to deliver the ransom. Given that piracy attacks are on track to more than double this year, it won’t be long before your ship is next. Unless you’re prepared to hire your own private militia to defend the ship in international waters, don’t take the risk.