STRATEGY
STRATEGY
STRATEGY
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Structure: 1.1 Introduction Objectives 1.2 Definitions of Contract 1.3 Evolution of Contracting 1.4 Make-or-Buy Decisions 1.5 Factors Driving Contracting 1.6 Law of Contract 1.7 Role of Competition 1.8 Summary 1.9 Glossary 1.10 Terminal Questions 1.11 Answers 1.12 Caselet
Introduction to Contracting
1.1 Introduction
Contract is a legal agreement between two or more parties. The number, size and degree of complexity of the contracts vary widely depending on the project. Contract management is the management of these contracts. It is considered as the backbone of a successful project implementation. The general steps in contract management include planning, designing and commissioning the project. Many project management professionals believe that project management is nothing but contract management. Hence, the project manager of any enterprise needs to view contract management as one of the critical tasks for implementing the project. This unit introduces you to the subject of contracting for purchases of goods and services for projects. We begin with the various definitions of contract, and then move on to the historical development of contracting. We will also analyse the factors driving contracting. We will learn about the laws of contract, that is private and public laws. We will also discuss the role of competition in contracting.
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Objectives: After studying this unit, you should be able to: define contract explain the history of contracting discuss about the make or buy decision determine the factors driving contracting discuss laws of contract: private and public discuss the role of competition
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o o
Persons of unsound mind. Persons disqualified by law to which they are subjected.
Duty implies the accountability owed to someone who has the corresponding right to demand satisfaction of an obligation.
Basic elements of contract Now that we have learnt the definitions of contract, let us now learn about the basic elements of contract. We must note that for an agreement to become a contract, it must enclose an offer, acceptance, consideration, and an objective to create legal relations. The basic elements of a contract are shown in figure 1.1 and explained thereafter:
Offer: An offer is proposal or a statement by one party to another, manifesting the intention to enter into a contract on certain terms. For example, suppose you want to sell a book, and you tell your friend that he could buy it for Rs.200. In this case you offer to sell your book for Rs. 200, without which you cannot develop a contractual relationship with your friend. The offer that you make must be clear in a manner capable of acceptance without anything further required by the other party. Acceptance: To create a contract, the party to whom you make an offer must accept it, without which no contract exists. For example, if your
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friend agrees to buy the book, then he has accepted your offer and a contract is created between you and your friend. An acceptance of the offer results in a meeting of minds. Acceptance can be in oral, or in writing. Consideration: It is the key element of a contract. It is the thing for which the parties have bargained. It may be a promise or payment of money. This promise is to perform the intended task. In our example the consideration is both Rs. 200 and the book itself. You bargain for the money and your friend bargains for the book. Intention to create legal relations: The parties in agreement can decide if they intend to make their contract a legal agreement that is enforced by law. This involves terms and conditions for performance; including fulfilling promises. For example, a major producer of automobiles enters into an agreement with a service company to service its automobiles.
A contract can be written or oral, but oral contracts are difficult to prove. A contract can also consist of a series of letters, offers, counter offers and orders. Some types of contracts are: Conditional contract (that is. it depends on an event that affects legal relations). Joint contract (that is. when several parties combine to make a joint promise to perform; however, each is responsible). Implied contract (that is. a legal contract which arises due to some relationship among the intermediate parties). In reality, there are innumerable variations of contract. The types given above are only some examples. Contracts are agreements but it is not necessary that all the agreements are legally enforceable. We address contract by comprehending the legal effects of agreements as falling into four categories: Valid contract: A valid contract is an enforceable contract. This contract has a proper offer and acceptance. Legally valid consideration is given and received. The parties have the legal capacity to enter into the contract and the contract is completely under law.
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Void contract: This is an illegal contract which means that the agreement does not meet the contractual requirements. The parties involved in such a contract are not entitled to any legal remedies because the contract is not legal. Voidable contract: Unlike the void contract, this type of contract is valid unless one of the parties declares the agreement as invalid due to legal reasons. Unenforceable contract: This is a valid contract, but this cannot be enforced because of a subsequent change in the law. For example, when a contract may exist in which one party has failed to meet the contractual obligations, and by the time the aggrieved party sues the other party, the time limit to sue has expired.
Self Assessment Questions 1. According to Websters New World College dictionary contract is used to set forth in writing and enforceable by _______, ________ and _______. 2. A valid contract is an enforceable contract. (True/False) 3. The key element of a contract for which parties have bargained is ___________. 4. A contract can be written or oral, but oral contracts are easily proved. (True/False) Activity 1 XYZ, a major car manufacturer gets into an agreement with ABS Company, which is a medium sized car service company. XYZ had advertised for car service companies in different media and then it had a formal agreement signed with ABS. Due to some reasons ABC felt that some of the clauses set by XYZ were not agreeable. Hence ABC closed the contract with XYZ. Identify the type of contract that XYZ signed with ABS and the list out the reasons for the same. Hint: Refer types of contracts
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Contracts have evolved over centuries. It is a lawful binding relation between two or more parties. The contractual relationships can occur from a small project to a corporate takeover or treaty between nations. These are specific tangible elements and codes that are structured according to the laws of the country in which they are written. In some countries, contracting parties like to meet with a verbal and handshake agreements for informal promises or trades of goods and services. During the past few decades, contracts have undergone many changes because of globalisation in our economy, outsourcing, deregulation and the types of competitors. The mode of contracting has become easier because of the usage of Internet. With all these changes, agreements written a decade ago seem simple in comparison to present agreements. This revolution in the contract structure, content and format has occurred because of the changing roles of contracts in todays business world. Contracts have evolved from a simple document to a dynamic and powerful tool with far-reaching implications for long-term business and personal relationships. Let us see an example of the development of contracting taken from the article An Unlikely History of Contracting by Gary L. Sturgess published in the Journal of International Peace Operations. Two hundred years ago, British and Irish convicts were transported to Australian colonies by private contractors. In 1787, Australias first convict fleet contract was won by a naval contractor, William Richards following a public tender. Richards supplied six ships and he had to make provision for food for about 800 convicts and their guard of marines for a period of eight months. Richards was paid a flat rate per month for each ton of shipping and another separate rate per convict-day for food provisions. This was similar to the contracts the Navy Board had developed for the shipment of troops to various parts of the world. The second contract was rewarded in 1789; this time with the objective of minimising costs. The contract marked a flat rate which transferred the risk of delay. The mortality rate of convicts was high enough to attract the attention of the authorities which received complaints of negligence. To
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prevent further negligence of such kind by the contractor, there was an enquiry and criminal prosecution, and the Home Department argued that the contractor should be paid for the number of convicts actually landed rather than taken on board. Hence the payment was modified. A bottleneck faced in implementing this mode of payment was that the contractors were not prepared to accept the complete transfer of outcome risk to them. This kind of contract dropped the morality rate of the contractors substantially. The only danger that the governing authority or the contractor faced, comprised certainties of ocean travel, thus minimising the probability of ill treatment of persons on board by the contractor. The example explained was a performance based contracting. Thus, we can conclude that the following actions need to be incorporated for successful contracting: Good contract design. Selection of a socially responsible provider. Sound contract management by public officials. Self Assessment Questions 5. The contractual relationships can occur from a ________ project to a corporate takeover or treaty between nations. 6. In ________, Australias first convict fleet contract was won by a naval contractor.
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decision is an output of the plan procurement process which is then used as an input to the conduct procurement process. So the organisation must decide to make or buy the product or service which are cost effective. The decision can be made at the individual resource level, or for an entire deliverable or for the project itself. The last option is decided right at the conception stage of the project. The cost evaluation technique used for the make or buy decision should be based on both direct and indirect costs. Direct costs include goods, materials, equipment, facilities and employee salaries. Indirect costs (some of which tend to get missed in the evaluation) include training costs, management costs, administrative overheads, and on going maintenance costs. Even though cost evaluation is the fundamental issue, there are other considerations in make or buy decision which include: Capacity: Can the company take on a product or service of this scale? Skill level: Do the persons involved in the project posses the skills required or do they need any additional training based on the project? Trade secrets: The company should maintain the secrets of a magic formula for a product or service but if this is not disclosed, then the product or service cannot be outsourced. Staff availability and existing workload: If the staffs engaged in the project are already working on another priority project, then they cannot be available for this project.
Strategic level analysis and operational level analysis The make-or-buy decision must be the most cost effective and efficient decision for the organisation. Make-or-buy decision should be analysed both at strategic level and operational level. In the book World Class Supply management 2003 edition by David Burt, Donald Dobler, Stephen Starling, it is recommended that the strategic level analysis and the operational level analysis should adopt the respective Rule of Thumb as under: Strategic level analysis: Items that fall under one of the following categories should be manufactured/produces internally, without being outsourced: o Items those are critical for the success of the product, including customer perception of important product attributes.
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Items which require specialised design and manufacturing skills or equipment, and for which the number of capable and reliable suppliers is extremely limited. Items that fit within the firms core competencies or within those the firm must develop to fulfil its future plans.
Operational analysis: Items that fit into one of the following categories should be produced internally that is. should not be outsourced. When: o The items in house cost of making is less than the cost, if it is outsourced. o In house manufacture makes productive use of excess plant capacity, thus helping the firm to absorb fixed overheads. o In house manufacturer can achieve better quality control. o Design secrecy is to be ensured to protect proprietary technology. o External suppliers of the product are unreliable. o Union pressure exists to manufacture in house. o The firm desires to maintain a stable work force.
Self Assessment Questions 7. Even though Cost Evaluation is the fundamental issue, there are other considerations in make or buy decision which include capacity ______, ___________ and staff availability and existing work load. 8. The cost evaluation technique should be based on both _______ and _______ costs. 9. The analysis of make or buy decision should be based on _________ level and ________ level. Activity 2 Silicon Ltd is a calculator manufacturing company. They have accrued a new project where the company has to manufacture 200 calculators in 15 days. Each calculator has three components: base, electronic cartridge and top cover. The company can manufacture the base, cartridge and the cover for 200 calculators in 5, 12 and 8 days respectively. The company takes 12 days only to assemble these components together. Based on these data the company decides to outsource the manufacturing of the electronic cartridges. How did the company decide which component it would outsource? Hint: Refer strategic and operational analysis
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Business owners will focus on contractors who have wider experience, access to intellectual property and the knowledge of contractor specialised in the work. Contractor must be capable of developing a product in a much faster way with the additional capacity brought by the supplier. Risk management is one of the main benefits of contracting especially in large, complex projects where the risks are distributed to parties most capable of managing the risks applicable to the work of each party. Contracting for low cost labour, for example is Research and Development projects which are outsourced by the high labour-cost countries to expertise available in low labour-cost countries like India and China.
The term subcontracting implies to the next level of contracting resorted to by a general contractor. If a contracting firm takes up the total project of constructing a building, the firm itself may have the core competence of carrying out the civil works, but it will usually award subcontracts for components of the total work like electrical works, air-conditioning works, fire protection system works and so on. However, the contracting firm is responsible for book-keeping the performance of total work. Since the 1980s, the term outsourcing has also come into use. It implies essentially the same as contracting or subcontracting. Outsourcing is the transfer of management and day-to-day execution of a specific business function to an external source provider. Business segments that are outsourced are: Information Technology (IT). Computer Aided Design(CAD) drafting. Facilities management. Accounting. Human Resource (HR). Market research. Manufacturing. Designing. Web development. Content writing. Engineering.
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Outsourcing or subcontracting helps the organisation to perform the task in an easy manner with division of labour, whereby each agency executes a part of the total project requiring specific skills applicable to that part. The other recent term which is used is off-shoring, in which the buyer organisation belongs to another country. As an extension of this usage for the term, even if the work is not outsourced that is. the work stays within the same corporation/company, the transfer of an organisational function to another country is now considered as off shoring. The distinction between outsourcing and off shoring will soon become lesser over time, because of increasing globalisation of outsourcing companies. Outsourcing involves contracting with a supplier, which may or may not involve some degree of off shoring. Disadvantages of contracting As we saw some of the factors that drive a contracting decision, now let us understand the disadvantages or criticisms associated with contracting in the following areas: Quality: The quality of work carried out by a contractor/subcontractor can turn out to be unsatisfactory. This can happen if there is poor buyersupplier communication or when the buyer makes a wrong assessment of suppliers capability. Public opinion: The public may perceive that the practice of outsourcing damages local labour market and can lead to unemployment. Language skills: Call centres often face complaints of low quality service. The complaints usually arise because of linguistic features such as accents; words used and so on which make call centre agents difficult to understand. Exploitation of work: Benefits such as medical assistance and retirement are not offered to workers in companies taking up outsourced work. Staff turnover: This generally happens in call centres where agencies keep changing frequently. This inhibits the pile up of employee knowledge and reduces the performance and quality.
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Productivity: Companies which solely outsource their project for the purpose of saving cost can have negative influence on the productivity of the company. When work is outsourced by a developed country to a developing country, and the workers use hand tools in lieu of the advanced computer controlled machine tools used by workers in the developed country. Hence, the productivity of the offshore workers is lower in reality, although it appears to be higher simply because of the lower wages paid to them in dollars. This gives rise to the perception that the developed country only gains non real productivity by hiring fewer people locally, rather than investing in technology to improve productivity.
We can conclude that contracting does have many benefits which are mentioned below: Division of labour. Synergy of expertise. Sharing of risks. To avoid the negative aspects of contracting closed attention must be given to the following: Selection of efficient contractors. Clear evaluation of bids. Accurate measurement and control of contract performance. Self Assessment Questions 10. Only the general contractors are necessary for carrying the business without any trouble. (True/False) 11. __________ is the transfer of management and day-to-day execution of a specific business function to an external source provider. 12. The contracting firm is responsible for ___________ the performance of total work.
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goods, services or results of project. While this is a wide definition it does not cover the full ambit of situations in which contract law will apply. Hence, we can say that contract law is a promise or set of promises which the law will enforce. As we have seen, a contract may arise in many situations; from buying a loaf of bread in the shop next to your house, to selling of a house. It is therefore unsurprising that certainty is needed, before the courts can intervene to enforce any agreement. The law of contract confirms the basic foundation of any contract, regardless of its complexity and substance. The Indian contract law is based on the English contract law. In India, contracts are governed by the Indian Contract Act ever since 1872. It extends to the whole of India, except Jammu and Kashmir. This act governs entering into contract, execution of contract, and the effects of breach of contract. The law is generally categorised as Private law and Public law, which are explained below: Private law: It is that part of the legal system that involves interrelation between individuals who voluntarily enter into the system of transactions of one sort or the other. It is the law which exists without the interventions of the state or central governments. Public law: It that part of the legal system that involves the government and the general public. It is governed by a government body.
Contracts play a vital role in todays business environment. By contracting, the companies can delivery their product or service on time. Central and state government firms make extensive use of private firms which provide facilities, firms and services. Government contracts vary a lot when compared to other office supplies. Government contracts are usually for a long period of time. Hence, complex and long term arrangements are prepared which provide complete service. The government contracts are regarded as traditional approach which is similar to ordinary private law arrangements. Although, the traditional approach is followed, the law of contracts applies to both private and public law.
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The need for Law of Contract We saw different laws of contract above but the question which arises is why we need the law of contract. If the law of contract are not taken into consideration there cannot be uniformity and it may result in obligations. An agreement which is free from law can be affected by misinterpretation. The law of contracts help us to decide whether an agreement is legally enforced. A court will apply the rules and principles of the law of contract to decide this. Organisations must be aware of these laws before they sign or create an agreement. The reasons to have a law of contract are because: Contracts are present in day to day situations. Modern society and globalisation operates by exchanging products and services. They are used to resolve issues or solve problems of misunderstanding the contract. It is part of private and public law. So it is concerned with relationships between parties. We can get a thorough idea of a valid contract. Not only the principles and rules but also emphasis on remedies because law of contract is also concerned with remedies. It helps us to decide whether the contract is valid or not. It helps us resolve issue if the other party in the contract does not keep to the agreement. Self Assessment Questions 13. The Indian contract law is based on the ______________ law. 14. The________ law is the law which exists without the interventions of the state or Central Government. 15. The Public law is that part of the legal system that involves the __________ and the ________. Activity 3 Create a PPT about outsourcing laws followed in India. Hint: Visit http://www.madaan.com/investing.htm and http://www.outsource2india.com/why_india/articles/legal_aspects_outsou rcing.asp
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Contractors show more interest and put in lot of efforts better than their competitors. The customer can obtain enhanced level of service or product because customer has the option of selecting the best contractor. Competition permits fairness and openness. Openness is especially important in government since it is the key to earning public trust. Publication of the contract by the government creates openness.
Effective design and planning must be ensured in the design of contract which results in greater advantage. Self Assessment Questions 16. Since 18th century the contract is based on _________ which is a competitive basis. 17. In USA, competition in contracting act was enforced in 1985 which sets a standard of competition for federal contracts. (True/False)? 18. An effective planning and design in contract increases the advantages in competition. (True/False)?
1.8 Summary
In this unit, we started with the definition of contract management for implementing project. We understood that it is an agreement between the client and the project manager and it is viewed as one of the critical tasks for implementing the project. We discussed the various definition of contracts, and also basic elements of contract. The basic elements are offer, acceptance, considerations and intention to create legal relations. We discussed about the four types of contracts: valid, void, voidable and unenforceable contracts. Valid contract is the agreement signed by both parties that meets the requirement of state law. Agreements which have unlawful object are considered as void contract. Voidable contract is the agreement entered between two parties where in it can be declared as invalid by one party for any kind of legal reason. Unenforceable contracts are valid contracts but they are not enforced in court. We also discussed the origin of contracting. Contracts were developed from one of the laws of Hammurabi, the ancient Babylonian conqueror. At the end of 18th century tendering was started which is a competitive basis. Then by latter part of 19th century, Associations of Builders, Architects and
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other professionals were formed. By the 20th century this was named as design and construct delivery method. We analysed the fundamental issues involved in make or buy decision. This mainly includes the cost evaluation technique based on direct and indirect cost. We also analysed the factors which drive the contracting decisions. Companies give contract to an efficient general contractor so that they can do their business operations without any trouble. The disadvantages of contracting are found in areas of quality, public opinion, language skills, staff over, and exploitation of work. We also discussed about the law of contract. There are two laws: private and public law. Private law is the law which exists without the interventions of the state or government. Public law is governed by a government body. We have also discussed the competition in contracting. As contracts are awarded on the basis of tender, contractors reduce their quoted rated in order to gain the contract. In some cases this price reduction may also lead to deteriorated quality of the service/product.
1.9 Glossary
Term Book-keeping Tender Convict Description The job of keeping the exact record of the money that has been spent or received by a business or other organisation. A written or formal offer to supply goods or do a job for an agreed price. To decide officially in a court of law that someone is guilty of a crime.
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1.11 Answers
Self 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. Assessment Questions Law, Compact and covenant True Consideration False Small 1787 Skill level, Trade secrets Direct and indirect Strategic and operation False Outsourcing Book keeping English contract Private Government, general public Tendering False True
Terminal Questions 1. Refer section 1.1 Introduction. 2. Refer section 1.2 Definition of Contracts. 3. Refer section 1.4 Make-or-Buy Decisions. 4. Refer section 1.6 Law of Contract. 5. Refer section 1.7 Role of Competition.
1.12 Caselet
Nirman Ltd, a medium sized company was awarded a government grant to complete the research and development and proof of concept for a new product over a period of 15 month. The company signed a contract for providing all the reporting requirements for the R&D and Proof of Concept deliverables. The challenge was to meet milestones in terms of time, cost and quality and also identifying, managing and solving issues that need to be addressed.
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The company used the following measures to overcome its problem. It: Developed a review of contract management methods and a wide range of tools such as project management, time management, contract management software, and so on. Developed and executed centralised administration for handling such agreements, including compliance tracking and reporting. Developed a training team who could guide the team on tools. Developed real time task and team management software to manage the R&D.
Tasks were completed on time, and the company profited from this project. Question: How did Nirman Ltd solve the problem? Hint: Solutions, which company undertook. References Sir William Reynell Anson, Anthony Gordon Guest, Principles of English Law of Contracts. Frank P. Saladis, Harold Kerzner, Project Management Book of Guide. http://en.wikipedia.org/wiki/Pricing_strategies http://www.businessdictionary.com/definition/void-contract.html
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