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APM Contracts and Procurement SIG - practitioner class 1

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APM Contracts and Procurement SIG - practitioner class 1

  1. 1. Welcome to the practitioner class 1: Introduction & Overview Presenter & Chair of the C&P SIG : Jon Broome leading edge projects consulting ltd setting | your | projects up for | successjon@leadingedgeprojects.co.uk +44(0)7970 428 929 www.leadingedgeprojects.co.uk © leading edge projects consulting ltd , 2013 • Housekeeping Mobiles off Fire Exits & Alarms Toilets © leading edge projects consulting ltd , 2013 1
  2. 2. ObjectivesTo give an overview of : key differences between the procurement of goods and services and works / sub- projects; important developments, both past and emerging, in contracts and procurement, key definitions and terminology; highlights of the SIGs generic 6/7 stage process. © leading edge projects consulting ltd , 2013Agenda Housekeeping About the SIG What is Procurement ? Developments in the Procurement & Contracting for Projects & Programmes The Guide : key definitions, the 6/7 stage process, highlights. © leading edge projects consulting ltd , 2013 2
  3. 3. One of the first SIGs Flourished and then declined. A conference some 5 ½ years ago : members wanted the basics of contracts & procurement. We run a combination of basic training events called “seminars” (always booked up well in advance) & more leading edge events. © leading edge projects consulting ltd , 2013Aim of the C&P SIG :The Contracts & Procurement Specific Interest Group : Exists to promote and disseminate knowledge, understanding and good practice of contracts and procurement in a project & programme environment. Aims is to become a lively and constructive debating forum which takes existing best practice and helps make it better. Wants to be disseminating this knowledge, understanding and better than best practice through a variety of accessible means. Has a long term aspiration to become recognised as an international forum at the leading edge of excellence in contracts & procurement for projects. © leading edge projects consulting ltd , 2013 3
  4. 4. 2013 Contracts & Procurement SIG Structure The Bulls Eye : Committee members & those who want to initiate ‘projects’ & pro-actively contribute. Copied in on most emails wrt SIG initiatives. Bi-monthly web / tele-conference meetings. The Inner Circle Circle : Those who are willing to contribute when asked e.g. Talks, contributing & reviewing documents. Limited direct emails. The Middle Circle : Those on the C&P web mailing list. The Outer Circle (& beyond) : Receive Information via general APM publicity. © leading edge projects consulting ltd , 2013Future Events Contracts & Procurement Masterclass 2: The importance of the business case & the project procurement strategy – evening of 15th May - Steve Emerton - here. Contracts & Procurement Masterclass 3 : Developing the Package Contract Strategy – Afternoon of 6th June – Me -here. Risk management is dead (or dying); long live the management of risk ! - lunchtime of 18th June - Me – Webinar. © leading edge projects consulting ltd , 2013 4
  5. 5. What is Procurement ? APM Body of Knowledge 5th edition (Section 5.4) (and last Procurement Guide) “Procurement is the process by which the resources (goods and services) required by a project are acquired. It includes the development of the procurement strategy, preparation of contracts, selection and acquisition of suppliers, and management of the contracts.” APM Body of Knowledge 6th edition (Section 3.7.3) “Procurement is the products and services are acquired from an external provider for incorporation into the project, programme or portfolio.” Are these still valid as definitions for the APM ? © leading edge projects consulting ltd , 2013Why is Procurement Important ? If 80 – 90% of many projects’ spend is outsourced in some way, then might having the right organisations and people on board with good contracts in place be helpful ? Research shows that good procurement decisions can have just as much effect on delivering projects to time, cost and performance as technical decisions. A Project Manager can only manage and administrate a contract through the cards he is dealt. Procurement & Contracts are about the cards you deal yourself. © leading edge projects consulting ltd , 2013 5
  6. 6. Developments since the last SIG Guide The Project Life-Cycle has expanded to include Operation & Termination. Extended Life Cycle Project Life Cycle Concept Definition Implementation Handover Operations Termination and CloseoutFigure 1.1 - APM’s project life cycle (APM BoK 5th ed.) The ‘implementation’ stage may only involve buying ‘off the shelf’ manufactured goods and ‘bodies’ as a service. Simple and easy ! © leading edge projects consulting ltd , 2013What about the Procurement of ‘works’ ? In EU procurement terminology ‘works’ are sub-projects delivered under contract. (sub)Projects happen over a period of time and are therefore subject to risk and change and involve interaction between people & organisations i.e. relationship based vs. transactional based. © leading edge projects consulting ltd , 2013 6
  7. 7. Figure 3.7: Diagram correlating Nature of Relationship with Type of Package © leading edge projects consulting ltd , 2013 Typically in : The NEED or OPPORTUNITY space Benefits Business to stakeholders Case Sponsoring organisation’s Success Criteria for project or programme. Project Brief Capabilities enable benefits to be achieved. Deliverables Project are the end products or measurable results of the project Scope e.g.as stated in function or performance specifications. Statement Goods and Services Technical that make up the Deliverable Spec © leading edge projects consulting ltd , 2013 7
  8. 8. What could ‘works’ be ?Works could be expressed as a collection of goods and services assembled by a Provider e.g. a designed construction sub-project. a combination of functional &/or performance specs e.g. office building which the Provider has to design and build. capabilities or outputs e.g. a customer service capability as expressed in a service level contract. For instance, in PFI projects. benefits & outcomes e.g. customer satisfaction, increased business, cost reduction.If I am the customer, am I buying goods and services ? © leading edge projects consulting ltd , 2013Developments since the last Guide The Project Life-Cycle has expanded to include Operation & Termination. There is a greater emphasis on outcomes, benefits & whole life cost’s. As technology & society gets more complex, there is an increasing need for collaboration to deliver projects. Selection therefore includes culture and capabilities as the end ‘product’ cannot be fully defined. Contracts need to align motivations and be more relationship based i.e. define how parties work together over time. © leading edge projects consulting ltd , 2013 8
  9. 9. What is Procurement ? APM Body of Knowledge 5th edition (Section 5.4) (and last Procurement Guide) “Procurement is the process by which the resources (goods and services) required by a project are acquired. It includes the development of the procurement strategy, preparation of contracts, selection and acquisition of suppliers, and management of the contracts.” APM Body of Knowledge 6th edition (Section 3.7.3) “Procurement is the products and services are acquired from an external provider for incorporation into the project, programme or portfolio.” Are these still valid as definitions for the APM ? © leading edge projects consulting ltd , 2013A new definition for Procurement ? Procurement is the process by which the benefits, enhanced capabilities, functions / performance or resources (goods & services) required from or by a project or programme are acquired. It includes deciding the package structure and, for each package, the development & implementation of the contracting strategy contract documents, including the specific scope / requirement process and evaluation criteria for selection and award leading to the effective management and administration of the contracts once entered into." © leading edge projects consulting ltd , 2013 9
  10. 10. Other key definitions in the GuideA contract is a legally enforceable agreement between two ormore parties with mutual obligations. It normally includes (when fora sub-project) at a minimum : the Requirement which defines the performance or deliverable; the constraints in which this performance has to be delivered; how the contract is administered in terms of when payments are made, quality is assured etc; how change, whether instigated through or by the Employer or arising from external circumstances, is administered and ideally managed to minimise the adverse impact on the Employer’s project objectives and outcomes; and remedies for non- or poor performance by either party; the pricing document. © leading edge projects consulting ltd , 2013Other key definitions in the GuideAn Employer is the party who normally instigates the contractand who is receiving the Requirement in exchange for the‘consideration’, normally monetary.The Provider is a broad enough term to encompass : A manufacturer supplying ‘off the shelf’ goods A manufacturer designing and manufacturing goods to an Employer’s unique requirements, whether it is a one-off deliverable or 1000’s of units; A consultancy organisation providing professional services, whether these are ‘business as usual’ services, such as accountancy, or project specific services; An outsourcing organisation providing on-going services tailored to the Employer’s specific needs; or A contractor delivering a works contract, however expressed. © leading edge projects consulting ltd , 2013 10
  11. 11. The Overall Process• There is an overlap as often each stage runs over into the next.• The process & processes within each Stage are not strictly linear.• The process & sub-processes are a framework to Guide thought & action OR• The starting point for the WBS and hence plan for a major procurement. © leading edge projects consulting ltd , 2013 © leading edge projects consulting ltd , 2013 11
  12. 12. Activity 5 : Development of the Project Brief. The Project Brief is a high–level outline specification, in terms of capability or functions and performance levels, of stakeholders’ (customers/clients) needs and requirements for the project needed to deliver the agreed Benefits. This would include the Benefits being refined where possible into tangible or measurable Success Criteria.Activity 7 : Develop Project Scope Statement What’s in, what’s out and what’s a maybe ? High level boundaries / constraints. High level project breakdown structure for costing & planning. Threats & Opportunities © leading edge projects consulting ltd , 2013Stage 1 : Develop Project Procurement Strategy © leading edge projects consulting ltd , 2013 12
  13. 13. © leading edge projects consulting ltd , 2013Example ‘Make or Buy’ Criteria © leading edge projects consulting ltd , 2013 13
  14. 14. See also Excel Spreadsheet © leading edge projects consulting ltd , 2013Fig 3.3 : Process diagram for Stage 1 : Develop Project Procurement Strategy © leading edge projects consulting ltd , 2013 14
  15. 15. Stage 2 : Develop Package Contract Strategy © leading edge projects consulting ltd , 2013Fig 4.2 : Process diagram for Stage 2 : Develop Package Contractedge © leading Strategy projects consulting ltd , 2013 15
  16. 16. Principles of Risk Allocation & SharingConsider : the effect on the organisations business, who can best influence it happening, for negative risk, who can best mitigate it, clarity over above for minor risks, and risk attitude © leading edge projects consulting ltd , 2013 Information Gathering Industry drivers & constraints Participants’ Drivers & Constraints : – E.g. cash flow; market share; certainty of profit vs. opportunity to maximise; short term vs. long term. – Is this Package critical to the project ? Strengths & Weaknesses of the Likely Parties : – Financial strength – Technical and commercial ability wrt risks – Collaborative ability ? Contract specific threats and weaknesses : – matched to above. © leading edge projects consulting ltd , 2013 16
  17. 17. Figure 3.7: Diagram correlating Nature of Relationship with Type of Package © leading edge projects consulting ltd , 2013 What Sort of Design Build High Contracting Strategy ? Finance, Operate Arrangements Joint Ventures Partnering Style Contracts - Strategic Alliances : frameworks, outsourcing, partnerships - Project alliances - Target costs contractComplexity/ Degree of Input Based Contracts : - Management contractingUncertainty - cost reimbursable - fee based arrangements Fixed price contracts - activity schedule - lump sums - milestone payments Bill of Quantities Low Schedule of Rates Short Medium Long © Permanent leading edge TIMESCALE projects consulting ltd , 2013 17
  18. 18. Second Order Risk Allocation Additional Risk and Thresholds – What risks would be additional to the Contract Sum (or what do we take out from a standard form) ? – What thresholds do we set for transference ? Use of Incentives – Damages vs. Bonuses vs. a combination. © leading edge projects consulting ltd , 2013Means of Redress Retention Guarantees : – Parent Company – Bonds Warranties – Fitness for Purpose – Collateral Warranties The Contracts (Rights of Third Parties) 1999 Act © leading edge projects consulting ltd , 2013 18
  19. 19. Use of Standard Forms Reasons to if possible Saves legal costs and time. In theory, they have been evolved and fine tuned over time to take out ambiguities & inconsistencies which cause dispute. Where this is not the case, case law may exist to confirm their legal interpretation. Familiarity amongst practitioners with both their interpretation and the procedures to operate them. (‘better the devil you know’ !) The contra preferentum or constructor against the grantor rule does not apply to the standard terms. © leading edge projects consulting ltd , 2013Fig 4.2 : Process diagram for Stage 2 : Develop Package Contractedge © leading Strategy projects consulting ltd , 2013 19
  20. 20. Stage 3 : Prepare Contract. © leading edge projects consulting ltd , 2013What should a contract cover ? Definitions Payment : Certification : when, by what criteria (foreign currencies) and by whom. Design development and Interest payments for late payment. implementation Approvals / Instructions etc. on behalf Types of liability : reasonable skill and of Employer care (services); fitness for purpose; tort. Risk Allocation / Management of Existing State / Starting Point Change : the need, risk allocation, The Deliverable calculation of time and cost. Each parties Rights & Obligations Title & ownership rights, inc IPR during delivery Insurance : what each party should Constraints during Delivery hold, indemnity. Subcontracting Termination / Exit procedures Testing & Commissioning Dispute Resolution : options & Correction of defects after sequence (dispute resolution board, adjudication; mediation; arbitration or completion litigation). Time, inc Final Certificate International Factors e.g. multiple currencies, shipping.. © leading edge projects consulting ltd , 2013 20
  21. 21. © leading edge projects consulting ltd , 2013Stage 5 : Select Contractor & Award Contract. © leading edge projects consulting ltd , 2013 21
  22. 22. Stage 5 : Select Contractor & Award Contract. Outline Sequence Relevant background law Types of Selection Criteria Typical Stages of a Selection Process EU Procurement Regulations Forming a Contract Other considerations / good practice e.g. : – answering queries during the tender etc – avoiding mis-representation in negotiation – status of letters of intent etc. © leading edge projects consulting ltd , 2013 Types of Selection Criteria Past Performance : for you & / or others Price * / Cost factors * The End Deliverable : Contractor’s Proposals* vs. what you asked for VfM Means of Delivery * : Hard & Soft factors Internal vs. External Capability : Organisationally &/or of Individuals * Culture : Generally &/or Compatibility Organisationally &/or Individually * Contractual Status must be decided. © leading edge projects consulting ltd , 2013 22
  23. 23. Typical Stages of a Selection Process Desk Research Publicising (& Engagement ?) Pre-Qualification Double Envelope : price & ‘quality’ Two Stage (Checking out of statements ?) Negotiation / Clarification Final Selection. © leading edge projects consulting ltd , 2013EU Procurement Regulations Do they apply to you ? Type & Value Thresholds. Public Sector & Utilities. Open Procedure : No prequalification. Open to all. Likely to be mainly based around price for commodities Restricted Procedure : Prequalification + no less than 5 final bidders. Negotiated Procedures : Open (with pre-qualification and going to open market) vs. Restricted. Competitive Dialogue : For ‘particularly complex projects’ when the technical specification or ‘legal or financial make-up’ cannot be defined in advance by the employer. © leading edge projects consulting ltd , 2013 23
  24. 24. Forming a Contract Why is this important ? So you, as a Project Manager, do not inadvertently enter a contract.There must be : Offer Acceptance Consideration Intent to form legal relations Capacity of Parties (and individual) Purpose must be legal and not immoral © leading edge projects consulting ltd , 2013Stage 5 : Manage & Deliver ContractStage 6 : Contract Close © leading edge projects consulting ltd , 2013 24
  25. 25. A new definition for Procurement ? Procurement is the process by which the benefits, enhanced capabilities, functions / performance or resources (goods & services) required from or by a project or programme are acquired. It includes deciding the package structure and, for each package, the development & implementation of the contracting strategy contract documents, including the specific scope / requirement process and evaluation criteria for selection and award leading to the effective management and administration of the contracts once entered into." © leading edge projects consulting ltd , 2013Feeding Back (please do !) By emailing me : jon@leadingedgeprojects.co.uk setting | your | projects | up for | success By telephone : 07970 428 929 / 0117 909 3297 Thank you © leading edge projects consulting ltd , 2013 25

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