Tag Archives: Contract

How Do You Negotiate Milestone Contracts? Three Suggestions

Situation:  A company’s contracts are based on milestones versus time and materials. This is common for their industry.  However, end products are poorly defined at project outset and product requirements frequently evolve and change, making milestones squishy. How do you negotiate milestone contracts and payment schedules?

Advice from the CEOs:

  • In addition to payment schedule, there are four elements to a project negotiation – specifications, schedule, project flow, and budget. Tell the client that to hit their budget target, they need to give you control of any two of the other three factors. This means that if they want to specify budget and schedule, then they have to yield you control of the specs and project flow. Any change to these means that they have to be willing to change budget and/or delivery date. Finally, to keep the project going on a timely basis, they must make milestone payments on time and on schedule.
  • Try to transform the project, as much as possible, to time and materials. Here’s your talk line:
    • To give you 100 hours of effort on a fixed bid basis, we have to budget 110. Time and materials, in the long run is less expensive because you only pay for what we need to deliver your product.
    • Your credibility to deliver on a time and materials basis will be based on past performance and the relationships that you have developed with your clients.
  • Milestone contracts are especially difficult in low margin industries because of project variability. One solution is to bid 130 hours cost for 100 hours work. The challenge is that this looks uncompetitive, especially compared with offshore resources. Therefore, an option is to develop offshore capability so that you can deliver your projects using a variety of resources with variable costs. Price everything based on domestic prices, but use offshore resources to improve your margins and your ability to cover project overruns without killing your profits.

What’s the Best Way to Sell a Domain Name? Five Suggestions

Situation: A company has a domain name that they no longer use. They have been approached by a domain reseller that wants rights to sell the name for a percentage of the sale price. The reseller is talking big money for the name. What are the best options for selling a domain name?

Advice from the CEOs:

  • The offer may look interesting, but you want to compare it with other options. These include Godaddy.com or buydomains.com. Compare both the price for selling the name and the estimates of what the domain name is worth. Look at how each would market the name, and their record for selling names. Compare their responses with the offer from the reseller that contacted you.
  • Get an appraisal on the name. Valuate.com offers a free tool to appraise a domain name, or you can look at GoDaddy for assistance in valuing your domain name under their Support section.
  • Have a contract attorney look at the reseller’s contract for hidden traps.
  • Get references from this reseller and check them out before signing anything.
  • If you move forward, make sure that you choose the escrow company. One CEO recommends Escrow.com for domain name sales.

Would You Dedicate Staff to a Single Client? Five Considerations

Situation: A company has received an inquiry from a large client requesting that they dedicate a significant portion of their staff to that client. The company hasn’t done this in the past, and the CEO seeks advice on the advisability of this choice. Would you dedicate significant staff to a single client?

Advice from the CEOs:

  • Provided that the terms offered by the client are favorable, the proposition may make sense. However, there are certain terms that you may want to assure are included in the contract:
    • In return for your dedicating choice staff to this project, ask for a substantial upfront payment – perhaps 50% of the total contract – to reimburse you for the opportunity costs that you incur committing your resources to the project.
    • Insist that the contract allows interchangeability of personnel if circumstances prevent initial personnel from continuing with the project.
  • Internally, work to assure that this project does not adversely impact your culture.
  • Talk to other companies that you know who have had similar arrangements with large clients. This will give you an understanding of the benefits and pitfalls of the arrangements.
  • Do everything that you can to assure that this project does not distract from your broader business strategy. Cash from the project may be nice, but if it inhibits your overall business strategy it may not be worth it.
  • If the employees assigned to this project are not happy with their assignment, the project may lead to unwanted turnover.

Arbitration or Suit to Settle a Dispute? Five Factors

Situation: A company has a long-term client that stopped a project suddenly 6 weeks ago with no explanation. Later, the client called saying that they do not intend to pay for work completed to date. Would you pursue either arbitration or injunctive relief to settle this dispute?

Advice from the CEOs:

  • If you have evidence of acceptance of a project contract or other documentation that the work proceeded under agreement with the client, this strengthens your position.
  • There may be other circumstances of which you are unaware such as financial or cash flow difficulties. Inquire through discrete channels to clarify this. Knowledge of the inside situation provides leverage as you negotiate a settlement.
  • Do you want to retain this client? If they have been valuable over the years this may just be the behavior of a single individual. If this is the case, work with your key contacts to bring this situation to light and try to solve the problem without legal action.
  • Because you have a long-term relationship with the client, focus your communications on the President rather than the VP who shut down the project.
    • Established your documentation, and complete your research on whether the client has cash flow problems; then call the President to work out an amiable resolution.
    • While you are justified in feeling miffed about the situation, business is business, and in this case it appears that your long-term relationship and the value of the ongoing business with the client outweigh the emotion of the present situation.
  • Focus on resolution of the dispute between the parties and do everything possible to resolve it between the companies rather than through legal avenues. This will help preserve the relationship with the client. Provided that you continue with this client, clean up the portion of the contract specifying notification and acceptance requirements and other areas of the contract that require attention.

How Do You Satisfy a Difficult Foreign Customer? Three Factors

Situation: A company has a long-term relationship with a Japanese distributor that is also an investor in the company. Due to time zone differences and language difficulties, communications are very difficult. This leads to significant cost overruns for the company. How do you satisfy a difficult foreign customer?

Advice from the CEOs:

  • In working with a difficult partner, it is critical to set expectations, establish ground rules and repeat these at the beginning of each conversation or teleconference until it is clear that both sides understand each other. Even at this point, these should be repeated and reinforced any time a new individual is participating in the conversation.
    • Do you want us to give you (a) our honest answer, or (b) do you want us to tell you what we think you want to hear? – They would be foolish to choose (b).
    • Preface each critical response with this choice to reinforce the agreement at the beginning of the meeting.
  • In a situation where you are losing money under a fixed price contract, you may have to have a “Come to Jesus” meeting. During this conversation, you want to understand and establish:
    • Whether this relationship is profitable for both of us, and
    • Whether this project is doable by each of us.
    • Usually this will result in a radical shift in the model.
    • If it does not they it is better for both if you part ways. You are unlikely to reconcile the situation.
  • The bottom line is to establish, mutually, whether you can satisfy your partner through your efforts. This is critical to your future with this customer.
    • If you cannot find an acceptable solution you must abandon the effort.
    • It makes no sense to take on business that is not profitable to you, even if the revenue is important to plan achievement.
    • At the current rate, you will not make up the loss in profitability through additional volume.

How Do You Respond to an Onerous Contract Clause? Five Options

Situation: A company just received an approved vendor renewal contract from their major customer. Upon review, they found language that potentially holds them liable to cover the customer’s legal costs of enforcing the agreement. If the company does not sign the contract, they potentially lose their major customer. How do you respond to an onerous contract clause?

Advice from the CEOs:

  • Corporate attorneys are paid to protect the corporation and purposely write vendor agreements to their favor. There are two issues here: whether they will negotiate this clause, and the likelihood of enforcement – which may be very small.
  • Double check your previous vendor contract and assure that this language want not present then. If the language is the same as in past agreements all you are doing in updating an expired agreement. Perhaps there is less of an issue than you anticipate.
  • If you find that this is new language, then call your primary contact in the customer company and ask about the new language. It may be something that their lawyers are trying to add to contracts but will forgo if called on the language. However, if your primary contact responds that this is new standard language in their contracts, you still have options.
    • Try pushing the issue to higher levels of the organization or through your advocates in the company and ask them them to modify the language.
    • Call your own company lawyer and ask how they advise you to respond. A letter from your lawyer to the customer’s lawyers may settle the issue.
    • Call other vendors of this customer and find out how they have responded to the new contract language. If several vendors call and complain about the fairness of the language, the customer may determine that the new language is not worth the hassle.

Key Words: Contract, Clause, Vendor, Customer, Liability, Enforcement, Negotiate, Lawyer, Fairness

How Do You Work with Purchasing Agents? Three Approaches

Situation: A company has a long standing relationship providing an exclusive product to a major customer and has a negotiated price and volume contract for this product. The customer changes product design every few years, and the company is the favored supplier of certain components. The customer’s purchasing agent has asked to renegotiate price on the current contract. The company wants to maintain a good supplier relationship with the company, but doesn’t want to lower the price on its product. How should the CEO work with the purchasing agent?

Advice from the CEOs:

  • There are two distinct opinions from the group:
    • You have a contract in place for volume and price. If you yield on price now just to assure the remaining business on the current contract you are saying, in essence, that future pricing contracts are also negotiable even after the contract is negotiated and signed.
    • On the other hand, if you know that there is a model design change in process and want to assure a good ongoing relationship with the company you may choose to yield a bit on price for the remainder of the current contract.
    • The choice between these two will be a gut choice based on your relationship with the customer as well as your past history with the purchasing agent.
  • You might want to try a creative alternative. Check with your own component vendor and inquire about pricing if you place orders for your own remaining components on the current product today versus in several weeks. If there is a discount for placing the order today, call the purchasing agent and tell him that if he orders the remaining product on the current contract today, you will pass on the discount that you receive from your vendor. If you don’t get the order today, then you will lose the discount, and there may be a delay on your being able to deliver the remaining parts under the current contract.

Key Words: Component, Supplier, Vendor, Purchasing Agent, Contract, Relationship, Discount, Delivery, Negotiate

How Do You Find Time to Do All The Right Things? Four Options

Situation: In a contracted service company, activity gets very busy at predictable intervals due to contract renewals. During these busy periods, either positive or negative surprises can make it difficult to handle the work load. What techniques have you developed to make sure that you find time to do all the right things?

Advice from the CEOs:

  • Look at your renewal process and break it down. There may be some aspects of the process that require top staff attention and other aspects that are routine and can be handled without special training. For the latter tasks, cookbook the details so that you can use either your own or outside staff to complete them. This will start to open up more options.
  • You may want to stagger your renewal periods so that all of the renewals do not happen at the same time. If this is not possible, rank your current customers in terms of revenue volume and profitability. This enables you to shift focus from less profitable customers during crunch times.
  • As crunch periods are both periodic and predictable, bring in extra staff on a temporary or contractor basis during these times to help manage the load. You may even be able to work with a staffing agency to plan adding of additional personnel to help handle the load during crunch times.
  • In the current economy there are a number of highly talented individuals – retirees, spouses who work part time, individuals who are underemployed – who want or need to work but do not necessarily have to or want to work full time. During your slower periods offer training on your products and software to a group of people like this so that during the crunch times they can come in to assist the load.

Key Words: Service, Contract, Renewal, Process, Resources, Customer, Rank, Shift, Focus

How Do You Evaluate Tradeoffs Between Strategic Options? Six Suggestions

Situation:  A company’s primary objectives are to hone their business model and establish their first satellite office as a model for future expansion. An opportunity has arisen from a trusted source that could rapidly expand both business and opening of satellite offices by providing service to a single national client. How do you evaluate the tradeoffs between these options?

Advice from the CEOs:

  • What is the impact of this new option on client diversity? One of Porter’s fundamentals of strategy is to not have too much of your business dependent on any one customer.
  • What is the impact of this opportunity on your personnel, time and resources?
  • Are there areas in which this opportunity will save time and resources, for example by consolidating some back-office functions like billing and accounting?
  • If this opportunity will take an inordinate amount of time and focus, consider starting a new entity to take advantage of this opportunity.
  • Use a decision-making grid to evaluate the new opportunity versus your present strategy:
    • Identify the most important factors of both your current strategy and the new opportunity.
    • Weight the importance of each factor as a percent of with the total adding up to 100%.
    • Rank each opportunity against each factor.
    • Multiply the factor ranking times the weight for each ranking.
    • Sum the weighted rankings.
    • See whether the summed rankings support of contradict your gut feeling, and further analyze depending on the result.
  • Once you have identified the risks in this proposition, determine contract provisions that will reduce risks to acceptable levels. If the potential client is unwilling to yield enough of these points in the contracting stage to acceptably mitigate your risks, then walk away from the deal.
  • Don’t risk your entire company for one opportunity. Financial rewards are only a scorecard.

Key Words: Expansion, Options, Satellite, Office, Time, Focus, Resources, Trade-offs, Client, Diversity, Consolidation, Function, Corporate Structure, Factor, Weight, Rank, Contract, Mitigate, Risk

What is Your Experience Outsourcing to Eastern Europe? Five Factors

Situation: A company is in contact with an Eastern European company that seeks outsourced business from the US. The CEO seeks guidance on challenges managing as well as formalizing this relationship. What is your experience outsourcing to Eastern Europe?

Advice from the CEOs:

  • Location in Eastern Europe is important. There have been concerns with both corruption and IP protection in Russia. Some other Eastern European are more aligned with US/European values and farther up the ramp as outsource partners.
  • Experience of other US companies suggests that your spec must be written much more tightly than if you were doing the work here. If you can’t write a tight spec on the work, don’t outsource it!
  • Contract outsourced work on a fixed fee basis with the bulk of payment due on completion. This helps to assure that you receive timely delivery and the quality of work required.
  • Set up thresholds for the circumstances to engage an outsource partner.
    • Say one US worker is economically worth 5 foreign workers in your domain. Do you have enough work to support this?
    • Determine who will manage the outsourced work. A European is fine, as long as they have experience managing outsourced work.
    • Someone on your team will become their Project Manager. This can be VERY time consuming.
  • Consider setting up an offshore company to shelter some of the revenue from the outsourced work.
    • You want to locate the offshore company in a tax-free country, and to have them handle the funds connected with the outsourced work.
    • The contact in the tax-free country will likely be an accountant, lawyer or both. There are many reputable individuals who do this in tax-free countries, but be sure to check references and background carefully.

Key Words: Outsource, Eastern Europe, Challenges, Manage, Relationship, Experience, Concerns, Alignment, IP, Corruption, Contract, Protect, Spec, Fee Basis, Delivery, Quality, Parameters, Tax Shelter