Introduction to Outsourcing. Baker & McKenzie s Global Sourcing Practice Group

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1 Introduction to Outsourcing Baker & McKenzie s Global Sourcing Practice Group 2008

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3 Introduction to Outsourcing Baker & McKenzie s Global Sourcing Practice Group This may qualify as Attorney Advertising requiring notice in some jurisdictions. Prior results do not guarantee a similar outcome.

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5 Introduction to Outsourcing Table of Contents Preface Introduction Outsourcing is Different The Parties Goals The Process Selection Strategies Dilemmas and Differences Structure Prime Contract or Best of Breed? The Players Competitive vs. Sole Source Selection Preparation Re-Negotiation Getting it Done: Negotiations and Documents What Risks? Scope Statements of Work Sweep Clauses Undisclosed Assets Change Management Keeping Technology Current Operational Risks Transition Plans Service Quality Governance Subcontracts and Subcontractors Financial Risks Consumption and Other Adjustments Price Protection Financial Condition Taxes v

6 Baker & McKenzie 6.5 Projects Setoff and Withholding Audit Security Risks and Proprietary Rights Confidentiality Proprietary Software Third Party Software Rights to New Developments Legal and Regulatory Risks Warranties and Other Fine Print Mutual Obligations Customer Commitments Supplier Commitments Disclaimers Monetary Remedies and Liability Limits Mutual Indemnities Supplier Indemnities Customer Indemnities Indemnification Procedures Insurance Liability Limits Extraordinary Risks and Remedies Termination Disengagement Calamities Force Majeure and Disaster Recovery Changes in Control Murphy s Law Glossary of Terms Baker & McKenzie s Global Sourcing Law Practice Baker & McKenzie s Global Sourcing Office Contacts vi

7 Preface Introduction to Outsourcing Outsourcing entrusting important operations to contractors at home and abroad is one of the important trends in 21st century business. This Introduction distills some of our collective experience advising both suppliers and users of outsourced services to explain how these relationships are built, and how risks are allocated and managed through effective contracts. Outsourcing presents some unusual challenges, because the relationships are durable, require deep collaboration between organizations, involve operations scattered around the globe and are beginning to attract increased attention from legislators and regulators worldwide. This Introduction was authored by our friend and partner in California, George Kimball, who wishes to thank all of our colleagues around the world, but particularly Michael Mensik, Peter George, Sam Kramer, Richard Hawtin, Harry Small, and Ross McKean, for their invaluable contributions. It is written from a US perspective, based primarily upon US law and practice, but also to reflect current reality, as outsourced services for US companies often involve some overseas dimensions. We hope this Introduction is useful, and welcome comments, questions, and suggestions from readers, which can be directed to any member of our Global Sourcing Team. 1

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9 Introduction Introduction to Outsourcing Outsourcing is the business Ross Perot invented more than forty years ago, before he discovered the delights of Presidential politics. Perot s insight was to offer technology as a service. Rather than sell (or in those days, lease) computers, Perot (then an IBM sales executive) proposed to operate systems for the customer in effect, to run rather than just equip the customer s data center. IBM wasn t interested, so Perot left to found EDS, start an industry and make billions. Since those early days, others have joined the fray, including Perot s former employer. The business has expanded from operation of data centers and other IT infrastructure to include a wide array of service offerings in HR, procurement, logistics, finance and accounting and other spheres. Often, functions are performed offshore to take advantage of skilled professionals available at lower cost in such places as India. 1 Today, we may define outsourcing as long term collaborative relationships that entrust business functions or processes to a contractor. Most solutions offered in today s market place are still built around technology some combination of computers, software, networks and skills that offer the customer better service at lower cost. The business relationship, though not the legal structure, resembles a partnership or joint venture: prolonged, inter-dependent and hopefully cooperative. More fundamentally, outsourcing is part of a trend toward disaggregated services, made possible by broadband technology and global markets, largely freed from exchange controls and other artificial constraints. These have given free rein to the law of comparative advantage. Companies may now obtain services worldwide, in much the same way that manufacturers obtain parts and fabricate products through worldwide networks of affiliates and suppliers. The typical PC may sport a familiar domestic label, but inside is an Intel or AMD microprocessor (made in the US), with disc drives, screens and components from several Asian countries, and assembled in China, Mexico or the Philippines. In much the same way, a company s support functions may involve a domestic data center, monitored from Asia or Latin America, with call center support from India. Outsourcing contracts tie these relationships together. 1 The rush offshore, sometimes confused with outsourcing, is a related, important trend, but the two are not the same. Most outsourced services now include some offshore performance, but many offshore operations are captives (like the Indian operations of many US financial institutions), rather than operations outsourced to third parties. 3

10 Baker & McKenzie This Introduction focuses upon issues and risks common to all outsourcing. Much may vary depending upon the location, particular service and other specifics. Data center operations differ from applications support or an integrated HR, logistics or procurement service. Yet there are many common themes: defining and managing scope; establishing and enforcing appropriate performance standards; measurement of and payment for service; governance amid continual change; assuring legal compliance; and provision for unpleasant contingencies and remedies, among others. Our perspective is that of commercial lawyers, familiar with issues that concern both users and suppliers, and seeking workable accommodation so that both sides can succeed. We begin by examining motives, goals and processes that lead to the negotiating table. 4

11 Outsourcing is Different Contracts allocate risks. Contract negotiation largely consists of allocating risks. Zealous counsel attempt to shift as much risk as possible to the adversary, while minimizing their own client s exposure. This is hardly surprising, but in outsourcing, as the parties begin a prolonged, intimate (or at least entangled) business relationship, other considerations come into play. Risk allocation commonly (and properly) respects lessons learned in kindergarten about cleaning up one s own mess. Outsourcing is different because the closing is just the beginning. When real estate is sold the deal is complete when the deed is recorded and funds are released. The parties rarely contemplate further dealings. They hope that any surviving obligations (indemnities, for instance) will lapse uneventfully. With outsourcing, signing begins a relationship meant to last years. The customer expects good service for a fair price. The supplier expects to deliver that service profitably. In practice, neither will succeed unless both succeed. Unhappy customers rarely renew, and make poor references. Suppliers with minuscule margins may be tempted to cut corners, work to the letter of the contract, and bombard the customer with change requests. These outcomes are recipes for trouble. Lopsided contracts usually come to grief. Ultimately, the relationship matters more than the contract; but each should reinforce the other, and the contract should provide incentives for both parties to perform even (or perhaps especially) when things go awry (as they are bound to, at least occasionally). Zero-sum thinking and adversarial tactics are almost always counterproductive, during contract negotiations and afterward. 1. The Parties Goals Introduction to Outsourcing Companies outsource for a variety of reasons. Saving money is often the most important. Rarely, one may be sure, do companies outsource in order to pay more. In the mature IT business, savings have long been the primary objective. However, as many companies internal operations have become much more efficient, and technology has shifted away from mainframe data centers (which may offer substantial economies of scale), some cost advantages from outsourcing seem to have eroded. On the other hand, there may be large savings when such labor-intensive functions as software development or maintenance go offshore, where prevailing salaries are much lower than in the United States or Western Europe. For similar reasons, 5

12 Baker & McKenzie HR operations or procurement based upon web pages and offshore call centers may offer large savings over conventional paper processes and on-site staffs. Apart from savings, outsourcing can be an agent of change, introducing new technologies with greater capabilities and efficiency, as well as better service. Entrusting IT, HR or other important functions to an outside contractor may allow the customer to shed assets, avoid ongoing capital expenditures and manage costs more effectively, especially if charges are tied to consumption. A contractor whose core competence is technology, HR or logistics can help the customer to devote more of its capital, energy and attention to its own core competence and customers. The suppliers goals are straightforward. They hope to deliver service profitably, and recoup marketing and transition costs, plus any investment in assets, through an enduring business relationship. Bid, proposal and transition costs may mean little or no margin during the first year or two after signing. Over time, as they wring costs from operations with better technology, processes and other efficiencies, suppliers hope that margins will grow especially if the customer buys additional higher margin services, such as new development projects. The suppliers own economics often depend upon standardization, economies of scale and, increasingly, the ability to shift operations to countries where labor costs less. Finally, in order to attract new customers, suppliers covet good references. 2. The Process Selection Strategies Key contract terms are not settled in a vacuum. As in other negotiations, context, circumstances, timing and leverage affect outcomes. The impatient or distressed customer, like the sales team eager to book new business, risks making compromises it may later regret. Good negotiators understand the underlying correlation of forces. Consultants and lawyers who advise customers commonly recommend competitive bidding, because competition tends to yield the most favorable terms. Many of the largest transactions result from competitive bidding. Nonetheless, most contracts may still result from ordinary one-on-one negotiation, without formal competition. Before weighing these alternatives (and variations upon them) let s examine the background. 6

13 Introduction to Outsourcing 2.1 Dilemmas and Differences Outsourcing contracts commonly consist of a services agreement, supplemented by schedules that describe the services, service level commitments, charges, transitional arrangements and other particulars. When operations are global, there may be companion agreements for particular countries or regions, in order to accommodate legal, operational and cultural differences, facilitate effective tax planning and effect transfers of employees and assets. For operational, administrative or tax reasons, some companion agreements may involve the parties local affiliates. The bulk and complexity of contract documents resemble a merger or acquisition. Many terms resemble those in mergers, acquisitions, financings or other complex transactions. There are, however, important differences. First, negotiation lays the foundation for enduring business relationships. Scorched earth tactics, gamesmanship and the like can poison those relationships and are best avoided. The relationship is at least as important as the deal. Both the relationship and the deal are generally more important than the contract. All three relationship, deal and contract should be aligned; but the relationship is paramount, especially when one considers that initial baselines, historic data and forecasts are often wrong. Second, the customer s leverage erodes after the decision to outsource, and especially after selection of a supplier. Affected staff see their futures elsewhere, perhaps with the chosen supplier. This naturally affects attitudes, loyalty and behavior. The process acquires momentum and becomes difficult for the customer to reverse. Well-advised customers therefore attempt to button down key terms early through a detailed letter of intent, term sheet or other, similar document that even if not legally binding effectively commits the supplier to price, scope, service levels and other key terms. Third, although outsourcing is not irreversible, it is difficult and expensive to unwind, either by bringing operations back in-house or shifting them to another supplier. Termination is a kind of tactical nuclear weapon, likely to scorch both sides. 7

14 Baker & McKenzie 2.2 Structure Prime Contract or Best of Breed? Until fairly recently, most outsourcing contracts tended to be comprehensive. A single supplier would assume responsibility for the customer s entire operation, from soup to nuts, or in IT, from the mainframe data center all the way to PC support and software maintenance. Prime contracts have the attractions of simplicity. The customer has, as is sometimes said, just one throat to choke. There may be many subcontractors, but a prime contractor has overall responsibility for all performance. There may be economic advantages as well. The larger the relationship, (i) the greater the supplier s flexibility to discount charges, and (ii) the greater the ability to balance more and less profitable (or risky) service offerings to achieve overall financial objectives. On the other hand, no single company is likely to be the cost and quality leader across the board. Therefore, many customers favor best of breed or selective strategies, entrusting particular services to different suppliers, and perhaps retaining some internally. A customer may pick and choose what it deems best or cheapest; and, by engaging a swarm of suppliers, deter complacency. However, managing several relationships is a more challenging and expensive proposition than managing a single contract. Governance arrangements must be more complex, in order to coordinate multiple contractors (some of whom may be competitors) and forestall blame games when things go awry. Occasionally, the customer may have to act as referee. Similar issues arise when companies outsource multiple functions such as IT, HR and procurement that seem loosely related, but actually share data, networks and other infrastructure and must comply with many of the same policies, procedures and accounting controls. Companies with portfolios of outsourced functions can save themselves money and grief by creating a single internal management team, requiring collaboration among suppliers and enforcing common practices and procedures, much as they would when coordinating internal departments or business units. 8

15 Introduction to Outsourcing 2.3 The Players For large transactions, both sides assemble substantial teams. Supplier teams are usually led by sales executives who earn substantial commissions when contracts are signed (and must otherwise account for substantial bid and proposal costs). Their supporting cast includes: (i) a financial analyst; (ii) subject matter or operational experts to conduct investigations (with due diligence ) and prepare proposals; and (iii) a lead negotiator (who may or may not be an attorney, but if not, is supported by a contract paraprofessional or an attorney). 2 Suppliers have sophisticated policies and procedures to evaluate opportunities and review proposals. Significant deviations may require executive approvals. Complex cost models are used to generate pricing proposals. When customers require substantial investments in transition or infrastructure, impose unusual risks, or insist upon stringent service levels, there are corresponding increases in contingency allowances, amortization and charges. Robust terms may raise the price, and exceptionally tough terms sometimes deter bids altogether. Wise customers insist that the supplier s team include the proposed account executive. There are few better ways to evaluate the single most important member of the delivery team. Bringing the person responsible for performance to the table may also reduce any temptation the sales team might otherwise feel to propose whatever it takes. The account executive, who must account to his customer for performance, and his employer for profitability, is not likely to promise more than can actually be delivered. The makeup of the customer s team will vary from one company and situation to the next, but commonly includes: (i) a designated leader who reports to responsible executives, (ii) subject matter experts, (iii) business unit representatives, (iv) someone 2 Business people on both sides sometimes imagine that they help themselves by keeping the lawyers out of the room. Cost considerations naturally and appropriately constrain use of counsel; but (unless the lawyers are antagonistic) judicious use of counsel throughout negotiations can expedite a satisfactory conclusion by, among other things, eliminating any risk of re-negotiation when, eventually, the documents receive legal review. Experienced counsel help suppliers to be responsive, and customers to understand what is required for both sides to succeed. Customers are usually wise to require suppliers to bring their counsel to the principal meetings, or else risk having settled points reopened during later, inevitable legal review. 9

16 Baker & McKenzie from purchasing (who hopefully appreciates that services are usually more than pure commodities) and (v) members of the team designated to manage the relationship after signing. 3 Responsible executives should oversee the process, and participate in major decisions. IT outsourcing inevitably involves the CFO and CIO. Business process outsourcing initiatives often involve wider constituencies. The process of assessment, preparation, selection and negotiation affords the customer a unique opportunity to involve all affected business units and functions, and build a strong consensus behind the outsourcing initiative. There are challenges enough when all sing from the same hymnal. When headquarters, business units and others pursue separate agendas, failure is likely. Supporting the effort are the company s legal counsel and, in many transactions, outside consultants to assist with assessments, solicitation and evaluation of proposals and ultimate negotiation of a contract. Their familiarity with outsourcing generally, market terms and trends, and even particular suppliers helps to level the playing field for the customer, especially the customer who has not attempted this before. When outside counsel is engaged (usually for similar reasons), the team should also include an inside lawyer, who knows the customer s business better than any outsider and can become prepared to support the relationship on a regular basis after signing. 2.4 Competitive vs. Sole Source Selection Many contracts are negotiated on a sole-source basis with one supplier. Others are awarded after competitive bidding, through an elaborate process (often orchestrated by outside advisors) using methods like those used in government contracts or construction. Competitive bidding provides leverage, and thus helps to assure a lower price and other more favorable terms. Preparation of a detailed request for proposals ( RFP ) obliges the customer to conduct a thorough assessment of current operations and costs an assessment that rarely fails to yield valuable insights (even if the company decides against outsourcing). 3 Many customers overlook or underrate the importance of relationship management, and do not prepare a team with sufficient resources or appropriate skills. Managing a contract is not the same as managing operations just as managing a construction contractor is not the same as erecting a building. When contracts go wrong, or fall short of expectations, poor relationship management is often to blame. Preparations to manage the relationship should begin early in the assessment and selection process, long before a contract is signed. 10

17 Introduction to Outsourcing On the other hand, competition takes time and defers whatever savings or other benefits are anticipated. Formal competition also costs money, not only in fees of counsel and consultants, but also the indirect costs of management time and attention. Occasionally, the process becomes so contentious that working relationships are bruised. Formal bidding also tends to focus competition upon price. The process obliges all bidders to meet a single set of requirements. Deviations from those requirements are hazardous and may be fatal to the bidder. This can deter creativity, and reduce the range for choice among competing technologies and solutions. 4 In recent years, some variations have emerged including more collaborative processes involving limited numbers of competitors reckoned to be the most compatible or competitive in hopes of achieving greater flexibility and saving time. However, virtually all competitive processes involve three distinct phases of assessment, selection and then negotiation. The better the initial assessment of current operations, performance, cost and requirements, the better the results are likely to be. The better the data and disclosure, the better the bidders proposals, cost models and price estimates. Thorough preparation also presents an ideal opportunity for the customer to build strong internal consensus among affected business units and other constituencies within the company. Sometimes, customers attempt to preserve maximum leverage by negotiating complete contract documents in parallel with two finalists, then declaring a winner when both contracts are ready for signature. Only very large transactions justify the additional expense (to both sides) of this tactic, which works best when there are two capable, evenly-matched bidders. If either finalist determines that the race is effectively lost, cuts its losses, and bows out, the customer s leverage may evaporate. No single approach suits all circumstances. Competitive and sole-source processes (and, for that matter, variations upon either method) can produce fair, successful agreements with competitive terms and respectable margins. However, negotiating strategies intended to resolve key issues must be crafted with the process and context 4 Paradoxically, when the process works well, decisions may be based upon such subjective factors as confidence, trust, culture and perceived competence or capability, because the final bids offer essentially similar solutions and the quotations are within a hair s breadth of one another. Since prices involve complex estimates of future consumption and other trends, differences of one, two or three percent may not necessarily have any statistical or economic significance. 11

18 Baker & McKenzie in mind, as well as the inter-relationships among business issues and the consequences of particular selection strategies. Major transactions inevitably require compromise. Often, making the deal requires both sides to make at least a few uncomfortable concessions. Both sides must consider what matters most, what they may be prepared to concede and, in all cases, the long-run health of the business relationship. In outsourcing, the parties long-run interdependence counsels restraint, respect for the other side s legitimate interests, and reasonable accommodations. Contracts succeed not merely because the parties fear audits, withholding, termination or other unpleasant consequences of breach, but because performance serves both parties interests. 2.5 Preparation Genius, it has been said, is one percent inspiration and ninety-nine percent preparation. The proportions are debatable, but the importance of thorough preparation is difficult to exaggerate. Experience suggests that the following preparatory work should begin as soon as a company begins seriously to consider outsourcing: Conduct a thorough assessment of current operations, whether or not an RFP or competitive bids are planned. There is no better (or more important) foundation for success than a reasonably complete, accurate and objective assessment of current operations that may be outsourced: their strengths, weaknesses, performance and especially costs. Much of the information and documentation collected performance reports, licenses and other third party contracts, lists of assets and so on will eventually have to be disclosed to bidders. Identify and begin to build a capable team to manage outsourced operations, then involve them in the process of assessment, selection and negotiation. Starting early helps to avoid unprepared, under-strength management of outsourced operations the single most common (and most easily avoided) error among companies that outsource important functions. 12

19 Introduction to Outsourcing Examine the numerous legal and contractual compliance issues presented by outsourcing. These include, among others: Audit What controls must an outsourcer implement? What reports and certifications must an outsourcer provide to satisfy Sarbanes-Oxley and other requirements? Contracts Many outsourced services require access to licensed technologies, leased equipment and other assets or services provided by third parties. What consent requirements, use restrictions or other terms may inhibit the necessary flexibility? Data Protection and Privacy Most outsourced services involve access to and use of sensitive personal data about employees and customers. Transfers of such data between countries may be regulated, particularly transfers within and from the European Union (whose directives have been models for legislation in some other countries). Before discussing compliance requirements with service providers, it is helpful to be sure that the customer s present arrangements are in order. Export Control Transfers of software and technical information to offshore providers will implicate regulations under the Export Administration Act. Do any relevant technologies (encryption, for example) have military, intelligence or other sensitive uses to which special requirements apply? Invoicing and Taxation What is the most tax-efficient way to receive invoices and pay for services? Suppliers will likely seek to recover value-added taxes that apply to the services rendered, even if these taxes are incurred on intercompany charges. Accordingly, an informed customer should investigate the incidence of such taxes and consider invoicing structures that minimize their non-recovery and overall compliance costs. Other tax issues relate to withholding taxes that may apply on the customer s own charge-backs to foreign subsidiaries in cases where invoices are paid centrally, as well as possible permanent establishment issues. 13

20 Baker & McKenzie Legal Compliance Data protection and export control are merely two examples of a larger challenge: making sure that outsourced services continue to comply with all of the customer s numerous legal obligations. How, for example, does a customer allocate responsibility for compliance with wages, hours, payroll withholding and other employment-related laws when HR functions are outsourced? Customers in regulated industries must comply with regulations peculiar to their businesses. Negotiated allocations of responsibility and risk should begin with an understanding of regulatory obligations and current compliance programs. Employment Outsourcing may displace or transfer many employees. In the US notice may need to be given under the federal plant closure law, known as the Worker Adjustment and Retraining Notification ( WARN ) Act 5 or similar state laws, which may have different or more stringent requirements. 6 Requirements are complex, and require expert advice as well as considerable lead times. The outsourcer may wish to interview and recruit some affected employees. When employees transfer, pains should be taken to respect the separate employment relationships with each employer, before and after transfer, in order to minimize the risks of liability as joint employers. In the European Union, employees displaced may transfer directly to the supplier, by operation of the EU s Acquired Rights Directive and implementing legislation within the member states. Some other countries have followed the European pattern. As in the US, requirements are complex, and require expert advice as well as considerable lead times (notably, to satisfy consultation requirements with works councils and unions). Companies considering outsourcing should therefore consider which employees may be affected, examine applicable legal requirements and determine what filings, notices, consultation or other action may be required before any contract is signed USC 2101 et seq. The federal statute requires employers to give 60 days advance notice when at least 50 employees will suffer an employment loss because of a plant closing or mass layoff (as each of these terms is defined by statute and regulations). 6 See, e.g., Cal. Labor Code 1400 et seq. 14

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