Articles related to costing, contracts, procurements, commercials and human relation issues
About Me
- Azman Yahaya
- Received my early education at the Rifle Range Road (2) Primary School, Kuala Lumpur. Attended junior high school at Raja Abdullah Secondary School, Kuala Lumpur and high school at Technical Institute, Kuala Lumpur. Further study at Mara Institute of Technology (ITM), Shah Alam, Selangor and obtained Certificate in Town and Regional Planning and Diploma in Quantity Surveying. Continued study in Mara University of Technology (UiTM) and obtained Bachelor of Quantity Surveying (Honours). I am a skilled commercial manager with extensive background in-and thorough knowledge of- development, construction, maintenance and construction contracts. Also having knowledge and experience in project, facilities and property management. Experienced in developing and implementing competitive cost planning, project budgeting, cost controlling and development appraisal. Exceptional organizational, analytic and managerial skills. Career as Commercial Expert till now.
Friday, 11 June 2010
Monday, 5 April 2010
Sifat Durian Tempatan Malaysia (Bukan Durian Thailand) dalam Konsep Integriti
Alangkah baiknya jika pohon durian itu berbuah lebat, buah-buahnya tidak rosak dan isinya dapat dinikmati oleh semua. Jika tidak berbuah pun, alangkah baiknya jika dedaunan hijau yang merendang menjadi tempat berteduh anak-anak daripada terik mentari , redup cahaya membangkitkan nostalgia keanak-anakan.
Dan, alangkah baiknya jika semua manusia tahu bahawa pohon durian itu amat sensitif sifatnya. Sedikit akar terluka, makan tahun rajuk tidak berbunga. Andai berbunga pun, seminggu dua kudup mula berkembang pasti layu gugur ke bumi kerana rosak akarnya penyebab rosak kudupnya. Andai lekat sebiji dua buahnya, pasti mangkal, buruk dan kurang rasa enaknya.
Jika pohon durian itu berbuah lebat, jangan digoyong, dipanjat atau dijolok untuk menjatuhkan buah-buah itu sudah tentunya isinya belum masak dan tidak dapat dinikmati. Lebih bahaya lagi jika buah-buah durian itu gugur menimpa kepala kita atau kita terjatuh, terpaksalah ke klinik atau hospital untuk mendapatkan rawatan.
Biarlah buah-buah durian itu gugur dengan sendirinya, sudah tentu isinya sudah cukup masak untuk dijamah dan jika dipelawa oleh empunya pokok, jemputlah sama-sama menjamah hasil buah durian yang mana pokoknya dibaja, dijaga dengan penuh keilkhlasan, rasa tanggungjawab serta berintegriti.
Mengukuh Amalan Integriti Dalam Perkerjaan
Sesungguhnya matlamat utama Allah s.w.t mencipta manusia hidup di atas muka bumi ini adalah untuk beribadah kepada-Nya, di samping diberi tanggungjawab dan amanah untuk memakmurkan bumi ini mengikut acuan dan panduan yang telah ditetapkan . Sesungguhnya Allah s.w.t. tidak mendapat apa-apa faedah atau keuntungan daripada apa yang dilakukan oleh manusia melainkan semua amalan tersebut kembali untuk diri mereka sendiri .
Perkara ini Jelas dinyatakan didalam Al-Quran surah al-Zhariyat ayat : 56 - 58
Maksud : " dan ( ingatlah ) aku tidak menciptakan jin dan manusia melainkan untuk menyembah dan beribadah kepadaKu, Aku tidak sekali-sekali menghendaki sebarang rezeki pemberian daripada mereka dan aku tidak menghendaki supaya mereka memberi makan kepadaKu. Sesunggunhya Allah dialah sahaja yang memberi rezeki ( kepada sekalian makhluk-nya dan dialah sahaja ) yang mempunyai kekuasaan yang tidak terhingga, lagi yang Maha kuat kukuh kekuasaan-Nya . "
Sesungguhnya agama Islam menggalakkan umatnya supaya bekerja dengan bersungguh-sungguh bagi meningkatkan kesejahteraan kualiti diri, keluarga, masyarakat dan negara . Islam melarang dan memandang reandah kepada orang yang malas bekerja dan hanya bergantung nasib kepada pertolongan orang lain .
Dalam Islam ibadah tidak hanya terbatas kepada sembahyang, berzikir dan bertasbih sahaja, dimana semua pekerjaan baik yang dilakukan oleh manusia dengan hati yang ikhlas dan tidak bercanggah dengan prinsip ajaran Islam, ia adalah satu tuntutan dan dikira sebagai ibadah serta mendapat pahala .
Kerana itu, Islam sangat menitikberatkan unsur kecemerlangan dan kualiti dalam sesuatu pekerjaan. Pekerja yang cemerlang merupakan aset yang bernilai dan membawa imej yang baik kepada sesebuah organisasi . Antara ciri-ciri pekerja yang cemerlang ialah rajin, tekun, berdisiplin, amanah sabar , penyayang, bertanggungjawab, dan sebagainya . bukanlah dikatakan pekerja yang cemerlang sekiranya melakukan tugas secara sambil lewa, cuai, tidak memberikan perkhidmatan yang memuaskan kepada pelanggan dan sebagainya . Lebih-lebih lagi mereka yang bersikap suka membuang masa, menyalahgunakan kuasa dan kedudukan, tidak menyimpan rahsia, pecah amanah, melakukan rasuah dan sebagainya . Ini semua melambangkan sikap pekerja yang tidak berintegriti dalam menjalankan tugas dan tanggungjawab yang diamanahkan
Sehubungan itu, kita perlu mengukuhkan amalan integriti dan nilai-nilai murni dalam pekerjaan sepanjang masa . Dimana setiap pekerja perlu menangkis gejala-gejala negatif dalam pekerjaan baik dalam sector kerajaan mahupun sektor swasta .
Sekiranya seseorang itu mengabaikan tanggungjawab yang telah diamanahkan kepada-nya sedangkan ia menerima ganjaran ( upah ) seperti orang lain, ini bermakna beliau mendapat sumber pendapatan dari kegiatan tidak halal dan sengaja mengundang kemurkaan Allah s.w.t. Sabda Baginda ( s.a.w.)
" كُلُّ لَحْمٍ نَّبَتَ مِنْ حَرَامٍ فَالنَّارُ أَوْلَى بِهِ "
Yang bermaksud : " Setiap daging yang tumbuh dari makanan yang haram, maka nerakalah tempatnya " .
( Rawahu Al-Tirmizi )
Pekerja Islam adalah pekerja yang saling bantu membantu dan tolong menolong antara satu sama lain dalam erti kata bekerja sebagai satu pasukan ( Team Work ) dan bersaing dalam suasana yang dibenarkan oleh syara . Islam melarang sama sekali sikap suka memburuk-buruk atau menjatuhkan sesama sendiri bagi mencapai tujuan-tujuan tertentu atau mempunyai sifat dengki, iri hati , tamak, khianat, rasuah dan sebagainya . Sifat ini sekiranya tidak dibendung, ianya boleh diibaratkan sebagai duri dalam daging dan akhirnya akan merugikan majikan dan diri sendiri, bahkan anak-anak dan keluarga juga turutmerasainya.
Tidak ketinggalan juga, terdapat segelintir pekerja disektor swasta atau bekerja sendiri atau pengusaha yang terlalu mementing diri sendiri dan keuntungan semata-mata tanpa sedikit pun ada perasaan prihatin atau mahu membantu orang lain dan menunaikan tanggungjawab sosial. Sebagai contoh dalam suasana kita mengahadapi kenaikan harga bahan baker, pihak kerajaan telah meminta kepada semua pengusaha pengusaha dan Peniaga-peniaga agar tidak menaikkan harga barangan atau apa-apa bayaran perkhidmatan tambahan dengan sewenangnya. Tetapi sebaliknya didapati ada yang melanggar permintaan tersebut . Perbuatan ini boleh diumpamakan sebagai menanguk diair keruh, menyusahkan orang lain demi kepentingan diri sendiri disebabkan dorong perasaan tamak dan ingin cepat kaya .
Sikap seumpama ini, bukan sahaja merugikan pada diri sendiri tetapi kepada semua, lebih-lebih lagi pada negara . Oleh itu, marilah sama-sama kita berusaha untukmengutamakan integriti dalam melaksanakan tugas seharian dengan bekerja penuh rasa tanggungjawab dan amanah, di samping menjauhkan diri kita dari sifat-sifat yang negatif seperti :-
- Suka menyalahkan orang lain dan beranggapan kitalah sahaja yang betul dalam semua keadaan .
- Menghabiskan masa dengan melakukan kerja-kerja persendirian
- Melakukan pembaziran dan berbual-bual kosong sesama rakan sekerja .
- Suka menonjolkan diri, berbanding sumbangan yang diberikan terlalu kecil . ini akan melahirkan kesan yang lebih borok lagi iaitu berlakunya permusuhan dan fitnah .
Apa yang penting tujuan dan matlamat bagi setiap pekerjaan adalah untuk mendapat keberkatan dan keredaan dari Allah s.w.t. dengan demikian akan wujudlah nilai keberkatan yang sebenar dalam setiap amalan dan pekerjaan yang kita lakukan seharian . Maka kita perlulah sentiasa memastikan setiap pekerjaan yang dilakukan menurut tuntutan syara’ seperti:-
- Niat yang ikhlas untuk mendapatkan keredaan dari Allah s.w.t. di samping mengharapkan pekerjaan itu diterima sebagai ibadah dan amal soleh .
- Berazam dengan semangat bekerja bersungguh-sungguh sehingga mampu menghasilkan daya cipta dan kreativiti yang berkualiti kepada organisasi dan pelanggan .
- Bijak dalam merancang dan melaksanakan sesuatu tindakan terutama dalam soal mengelak berlakunya pembaziran .
- Hendaklah sentiasa mengamalkan sikap sabar setiap masa dan bertawakal serta berdoa kepada Allah s.w.t. bagi menjamin hasil yang sempurna dan berkualiti .
Saturday, 5 December 2009
HUMAN RELATIONS MANAGEMENT
Mayo (1945) stated that the reason workers are more strongly motivated by informal things is that individuals have a deep psychological need to believe that their organization cares about them. Workers want to believe their organization is open, concerned, and willing to listen. When workers complain about something, they don't often have any factual basis for a valid complaint because all they want is some "validation" they are part of the organization. The sociological implications are that the human dimensions of work (group relations) exert a tremendous influence on behavior, overriding the organizational norms and even an individual's self-interests. This discovery of "social capacity" was nothing short of revolutionary for human resource management and ushered in a whole new era of "employee-centered management." The "Cult of Mayoism" became the dominant paradigm of the day, as administrators everywhere sought to re-train supervisors to play the role that Mayo's assistants played. This led to the establishment of "management retreats" where managers engaged in Rogerian therapies, Maslowian therapies, sensitivity training, Parent-Adult-Child training, and any other form of group dynamics to become more employee-centered.
• First are orders that are unquestionably acceptable and that are always obeyed because they lie within what Barnard called their zone of indifference, or typically dealt with things that are part of an employee's job description and are routine.
1. Create constancy of purpose toward improvement of product and service
Fred Herzberg (1923-2000) founded "Motivation-Hygiene Theory" which is based on 5 types of organizational "satisfiers" and 5 types of organizational "dissatisfiers" with hygiene factors being the dissatisfiers and motivators being the satisfiers. People are assumed, in their attribution style, to be either hygiene-seekers or motivation-seekers, in which case they are driven by changes in job context or job content, respectively. It is better to be a motivation-seeker since hygiene-seekers let the organization down when their talents are most needed. The theory is a little bit more extensive than can be portrayed here, but perhaps the following chart helps:
________________________________________
A. motivated by job context - the environment of the job
________________________________________
A. motivated by job content - the nature of the task
Rensis Likert (1903-1981), (pronounced 'Lick-urt'), is famous for his 7-point continuum research scales, so-called "Likert scales" in social science research, such as /------strongly agree----agree----disagree-----strongly disagree-----/, and also for a number of studies into leadership, called the "University of Michigan studies." In general, he advocated more employee-oriented leadership and supportive management. Of some historical significance is the debate between the University of Michigan studies versus the Ohio State University studies. The field that is addressed by this debate is called behavioral leadership theory, and the debate goes as follows:
The Michigan versus Ohio School Debates
The new public management (NPM) movement wants to integrate employee ethics and morality with the needs of organizations. The movement began as an academic conference of left-leaning public management faculty at Syracuse University's Minnowbrook Conference Center in 1968. For this reason, the new public management is sometimes referred to as the Minnowbrook perspective. Advocates of that perspective argue that bureaucrats should not only bring their morality to work with them, but they should work toward more socially-conscious policy. They argue that bureaucrats should take an activist position in order to solve the world's problems by being better "thinking" and "sensitive" bureaucrats. They advocate that efficiency should be replaced by something called social equity in how a public sector organization is evaluated. The movement has not gone without its criticism, and in some ways seems to be making progress while in other ways seems to be dying off. It appears that NPM may have settled on the following principles (the four D's) to work on as far as their contributions to public administration in the future:
Gallery of Famous Management People
Greenleaf Center for Servant Leadership
Hawthorne, Pygmalion, and Placebo Effects
Hawthorne Experiments and Findings
Human Relations Approaches to Motivation
Mary Parker Follett: Visionary Genius
Onepine Info on Elton Mayo and Others
W. Edwards Deming Institute
Wikipedia Entry on Six Sigma
Wikipedia Entry on NPM
Barnard, C. (1938). The functions of the executive. Boston: Harvard Univ. Press.
Bennis, W. (1966). Changing organizations. NY: McGraw Hill.
Boje, D. & Rosile, G. (2001). "Where's the power in empowerment: Answers from Follett and Clegg." Journal of Applied Behavioral Science 37(1): 90-117.
Calas, M. & McGuire, J. (1996). "Not ahead of her time: Reflections on Mary Parker Follett as a prophet of nanagement." Organization 3(1): 147-152.
Davis, K. (1967). Human relations at work. NY: McGraw Hill.
Deming, W. (1986). Out of the crisis. Cambridge, MA: MIT Press.
Fox, E. (1968). "Mary Parker Follett: The enduring contribution." Public Administration Review 28(6): 520-529.
Golembiewski, R. (1978). Organization development in public administration. Boca Raton, FL: CRC Press.
Golembiewski, R. (2002). Ironies in organizational development. Boca Raton, FL: CRC Press.
Graham, P. (Ed.) (1995). Mary Parker Follett: Prophet of management. Knoxville, IL: Beard Books.
Greenleaf, R. (1977). Servant leadership. NY: Paulist Press.
Lindblom, C. (1959) "The science of muddling through" Public Administration Review 19: 79-88.
March, J. & Simon, H. (1958) Organizations. NY: Wiley.
Mayo, E. (1933). The human problems of an industrial civilization. New York: MacMillan.
Mayo, E. (1945). The social problems of an industrial civilization. Boston: Harvard Univ. Press.
McGregor, D. (1960). The human side of enterprise. NY: McGraw Hill.
O'Connor, E. (1999). "The politics of management thought: A case study of Harvard business school and the human relations school." Academy of Management Review 24(1): 117-131.
Ouchi, W. (1981). Theory Z. Reading, MA: Addison-Wesley.
Trahair, R. (1984). The human temper: The life and work of Elton Mayo. New Brunswick, NJ:
Monday, 7 September 2009
BEST PRACTICE ADVICE IN POST TENDER NEGOTIATIONS
INTRODUCTION
Post tender negotiations is a purchasing strategy that should be considered in all acquisitions. The purpose is to obtain the optimal solution and commercial arrangements, and not merely accept the lowest priced technically complying offer made at the time of tendering.
It is essential, however, that before post tender negotiations commence, a clear plan and strategy is developed and the negotiation team is fully briefed.
It is also essential that there is equality of opportunity to short listed tenderers during negotiations. Short listed tenderers are those which satisfy mandatory and desirable criteria and offer acceptable solutions, on initial assessment. This can be achieved by ensuring that the following occurs:
- when some changes to the user requirements (which does not substantially alter the specification) become necessary or desirable during the negotiation phase, shortlisted tenderers have the opportunity to revise their offer; and
- the same general questions and propositions are put to shortlisted tenderers (e.g. the opportunity to improve the solution tendered and/or reduce the costs as a last and final offer).
This does not preclude questions of clarification which may be specific to a particular tender.
A record should be kept of the negotiation process for audit purposes. However, details should be brief and limited to:
- date and time of communications (e.g. meetings, phone calls, correspondence);
- persons present or addresses;
- topics discussed; and
- outcomes.
At the conclusion of the negotiations the potential contractor should be requested to document their understanding of the negotiations in a letter as their latest offer. Details of the meeting are to be managed as Commercial-In-Confidence in accordance with Departmental policy.
Only people with negotiation training and experience should lead and conduct negotiations, otherwise the more experienced tenderers may be able to use their skills and obtain a significant advantage.
BACKGROUND
Post tender competitive parallel negotiations with two or more short listed tenderers is a purchasing strategy that provides substantial benefits to both buyer and seller and is usually used for high value and/or complex acquisitions. The objective is to seek the optimal solution and commercial arrangements, and not merely accept the lowest priced technically complying offer made at the time of tendering. This technique also maintains a competitive market situation throughout the evaluation process which sustains purchasing leverage. However, although lower costs are a likely outcome of post tender negotiations, it should not be seen merely as a mechanism for lowering the price.
DISCUSSION
Advantages
Post tender negotiations provide organization buyers with the opportunity to:
- increase the number of complying offers (providing greater competition);
- reduce risk to both parties;
- eliminate unnecessary costs;
- improve benefits (better quality, performance, delivery etc.);
- identify alternative solutions;
- clarify requirements and proposals;
- create better understanding and relationships between the parties;
- improve the tender bid; and
- opportunities for partnership.
Ethical and Probity Issues
Opposition to post tender negotiation is usually based on ethical considerations. This issue can be addressed through pre-tender briefings. These arrangements involve supplying prospective tenderers with copies of draft Request for Tender documents before tenders are called. Discussions can then take place at either a briefing conference and/or through individual interviews to seek clarification on technical and commercial matters, to explore opportunities to open up the specification, or to remove features which can reduce costs without affecting functionality and performance.
Concerns about post tender negotiations can also be diminished by declaring the evaluation criteria and methodology either during the pre tender stage or at the time the tender is advertised. This action demonstrates a department’s intention to be honest, open and fair, and give tenderers the opportunity to prepare a bid which best matches criteria considered to be the most important by the buyer.
It is also essential that there is equality of opportunity to shortlisted tenderers during negotiations. This can be achieved by ensuring that the following occurs:
- when some changes to the user requirements (which does not substantially alter the specification) become necessary or desirable during the negotiation phase, all short-listed tenderers have the opportunity to revise their offer;
- the same general questions and propositions are put to all shortlisted tenderers (e.g. the opportunity to improve the solution tendered and/or reduce the costs as a last and final offer). This does not preclude questions of clarification which may be specific to a particular tender.
The development of supply partnerships or strategic alliances also requires the traditional "arm’s length" basis of tendering to change. Suppliers must be seen as trusted parties and not adversaries. Post tender negotiation will facilitate this approach to doing business, and Australian suppliers will have the most to gain from this arrangement.
Negotiations on Price
Price is an obvious focus for post tender negotiations. However, it should not be regarded as unethical for a buyer to challenge the prices quoted. It is not immoral or wrong for a supplier to price a bid to the highest level which the market or purchaser can withstand. The seller has a responsibility to maximise company profits and departments have a corresponding duty to minimise cost/expenditure to an extent compatible with the purchase of a reliable product and/or service. Price negotiation should be done in a professional, objective and forthright manner.
It is possible that suppliers will anticipate the prospect of a price-orientated negotiation and artificially inflate their initial bids accordingly. Departments need to take this into account when planning a purchase and when preparing for negotiations. However, there are factors that militate against such an approach by suppliers. For example, negotiations will not always occur and, when they do, price may very well be a key criterion for shortlisting. Artificially inflated prices may quickly take the supplier(s) offer out of consideration.
Role of Accredited Purchasing Units (APUs)
APUs should be made aware of any activities involving post tender negotiations in their department, and maintain a "watching brief" on the process. This should only involve the project manager informing the APU that negotiations will be taking place shortly with a shortlist of tenders. The APU would need to know who will be involved in the negotiations and satisfy itself that the people involved have the necessary skills, experience and training.
Record Keeping
A record should be kept of the negotiation process for all audit purposes. The negotiation process may be conducted by mail, or where a meeting is involved, details should be brief and limited to:
- date and time of meetings;
- persons present or addresses;
- topics discussed; and
- outcomes.
It is also essential for the potential contractor to document their understanding of the negotiations in a letter as their latest offer. Minutes of meetings, however, should not be exchanged as they may create legal difficulties at some time in the future.
Training and Experience
It is advisable that only people with negotiation training and experience lead and conduct negotiations.
Guidelines
Negotiations for large or complex acquisitions should involve a planning and a negotiating team. Annex A provides some guidelines on how the process should be managed.
Areas for negotiating are wide ranging and some are detailed in Annex B and some key factors in negotiating techniques and negotiations in Annex C.
Annex A
PLANNED APPROACH TO NEGOTIATIONS
1. Responsibilities of the Negotiating Officer/Team
When negotiating the terms and conditions of contracts the negotiating officer should seek to achieve the following objectives:
reach agreement on terms and conditions which are fair and reasonable to both parties;
ensure that the other parties to the negotiations are aware that any agreements which are reached are subject to ratification according to the appropriate delegations;
ensure that the competitive element is maintained wherever possible i.e. ensure ensure that information given in confidence by potential suppliers is not revealed to other parties to the negotiations. In addition, all parties must be advised that no decision has been made in regard to awarding the contract
Negotiating officers should be aware that in all contracts with potential contractors, they are representative of the end-users or technical and commercial department. Any dealings with them which could have or be seen to have the effect of compromising the impartiality of officers must be assiduously avoided.
2. Pre-Negotiation Phase
In most instances negotiations are conducted by a team comprising representatives from the users and specialist advisers as required such as an accountant, technical specialist and legal.
Before entering into formal negotiations with potential contractors, adequate preparation is essential to ensure that the negotiating team has:
- complete understanding of the contractual requirements of the department, and the response offered by potential contractors (i.e. current situation);
- knowledge of the prevailing market situation in relation to the requirement;
- a unified team approach in dealings with potential contracts (what we want to get or areas to explore); and
- a base position from which to negotiate and a strategy for negotiation.
The first aim of the Negotiating officer/team in preparing for negotiations is to obtain a detailed knowledge of the department’s requirements and non-negotiable outcomes. The second aim is to fully understand the offers made by the potential contractors. All aspects of offers which are unclear must be investigated and clarified. Also, terms and conditions of a (potential) contractor’s offer must be evaluated in relation to the total contract price. The conditions prevailing in the market which may have a bearing on the offers made by (potential) contractors (e.g. recession or boom in the economy generally or in particular industries; fluctuations in prices of inputs to production) should also be considered. It may be necessary for the negotiating team to meet and clarify these issues prior to commencement of the negotiations.
Negotiations should be based on full consideration of all relevant aspects including:
- ability of the offer to fulfil the requirement;
- contract terms and conditions; and
- relevant organization policies.
In this regard, the Team Leader must make it clear who in the team has prime carriage of negotiating the various aspects, e.g. solutions, terms and conditions, etc. Any differences of opinion between team members must be settled by discussing away from the negotiating table so as to present at all times a united approach to other party(s) to the negotiations.
As a further step in preparation, the team should determine in advance appropriate objectives, and establish a minimum and maximum limit for each such objective, i.e. "room to negotiate" around each target objective. Objectives represent "preferred settlements" and taken together they represent a package covering possible negotiable aspects of the purchase. The team will need to determine in advance the appropriate degree to which each objective needs to be specified for possible disputed aspects, i.e. rank the objectives. Setting out to decrease the potential contractor’s offer by a certain per cent or to secure the best possible price is not a sufficient objective.
The Team Leader should also analyse the potential contractor’s objectives and thereby seek to assess what the potential contractor’s minimum and maximum offers might be. This approach should assist in assessment of the potential contractor’s true position.
Once objectives have been determined, the Team Leader should formulate a strategy to achieve them. The following principles should be observed:
- always keep your particular objective (in relation to the aspect of the negotiation under discussion) in mind;
- ensure that the planned strategy is flexible and adaptable to changing circumstances;
instead of renewing an approach along the same line or in the same form after it has failed, consider the possibility of approaching it from a different angle; and - ensure that a way exists to reach an equitable compromise without loss of face by either side.
Before the actual negotiations begin, the seating arrangements should be determined. The best seating arrangement, for all parties, is to have both teams facing each other down the sides of an oblong table, with the team leader for one side facing the other team leader, flanked by the respective team members. These team members, however, should not be paired off across the table according to their areas of expertise. Instead, they should be placed at opposite ends of the table so that all discussions go across the negotiating team leaders.
3. Negotiation - First Step
As a first step in negotiation the presentation order of the issues is agreed by the parties. The alternatives are:
- the issues can be negotiated one at a time and a resolution reached prior to moving to the next issue; or
- all the issues can be established and discussed individually, without resolving any single issue until the full extent of the contentious issues and associated concessions is apparent to both parties.
4. Negotiation - Technique
Members of a negotiating team should avoid questions which antagonise the other party, create a feeling of inferiority or cause other unfavourable reactions. When a question is unanswered, the person should not be left floundering indefinitely, but it should be made obvious that the setting aside of the question is acknowledged and the issue raised may be the subject of later discussion.
If agreement on a particular issue cannot be reached, the issue should be deferred - the point of difference should be summarised and the matter set aside for the time being. If several consecutive issues cannot be resolved, it may be necessary to change the approach in order to develop a pattern of agreement.
Consideration should be given to having a summary of the facts and agreements reached at each stage of the negotiation. In lengthy negotiations, summaries and conclusions may be required at various intervals, in particular, when a major point of issue has been resolved or has been exhaustively analysed without resolution and the issue is to be deferred until later the negotiations are recessed for a period of time. However, throughout the negotiations, minutes of meetings between the representatives of the Tender Committee or department and Suppliers should not be exchanged as they may create legal difficulties at some time in the future.
Negotiating teams should ensure that where competitive offers have been obtained, a "competitive situation" is maintained throughout pre-contract award negotiations. All team members should be aware that an invitation to negotiate with one potential contractor should not preclude negotiations with others. Accordingly, wherever possible during a pre-contract award negotiation the firm should be referred to as the "tenderer" or "company", rather than as the "contractor".
Negotiating teams should bear in mind that negotiations are not necessarily concluded when the prices and delivery schedule have been agreed upon - it is just as important to reach agreement on all the relevant terms and conditions expected to be applicable to the contract.
Except where they would be inappropriate (e.g. in the case of large value or complex contracts requiring more detailed and more relevant terms and conditions, or where a major overseas acquisition is being negotiated) if standard conditions are not acceptable to the (potential) contractor, attempts should be made to modify them so that they are suitable to both parties. Completely new clauses should be avoided unless there are unique features of the contract being negotiated which prevent the standard conditions or modified form being used.
Negotiating teams must ensure that there is no conflict between the various conditions to be included in the contract. This is best achieved if each clause is treated as a part of the whole contract and not as a separate entity.
In some instances, negotiating teams will comprise a legal officer who will provide legal advice and draft new and/or amended contract clauses. In large valued or complex contracts requiring considerable amendments to the standard contract terms and conditions, the solicitor will prepare the final contract which is agreed to by both parties. The contract should be an entire agreement namely include all contractual issues (with no ambiguities) required for the purchase.
5. Post-Negotiation Phase
At the conclusion of negotiations of a contract there must always be a signed contract or Heads of Agreement which includes all terms and conditions agreed.
Annex B
EXAMPLES OF POSSIBLE NEGOTIABLE ITEMS/ISSUES INCLUDE:
- acceptance testing
- access to premises
- alternatives offered
- arbitration
- buyer-furnished equipment, services or consumables
- cancellation terms
- charging for consumables
- completion dates
- defects liability
- delivery dates
- determination of contract cost
- discounts
- documentation requirements
- duration of contract
- freight terms and packaging; freight escalation; verification of costs
- functions and performance
- guarantees and warranties
- incentives for suppliers
- installation and commissioning
- insurance
- life cycle support
- liquidated damages
- maintenance
- order quantity and packaging
- ownership of intellectual property, where appropriate
- payment terms and arrangements; method; timing
- performance bonds; bank guarantees; retention monies
- price and price variations
- production schedules
- profit or return on investment
- quality management; certification; required tests; cost of testing
- sources of particular components, sub-assemblies or service
- specification changes
- new generation technology
Annex C
KEY FACTORS IN NEGOTIATION TECHNIQUES
The factors listed below will be relevant to most post tender negotiations.
Planning and Preparation
- Ensure you have the authority to negotiate and that you understand the limits of that authority.
- Establish a negotiating team and arrange to call on expert advice when necessary. In particular, seek early involvement of a solicitor where legal advice may be required.
- Ensure the team completely understands both the requirement and the responses offered by bidders.
- Ensure that those leading the negotiation team are suitably trained and experienced in conducting negotiations.
- Determine and agree on negotiating technique and tactics and the roles of each team member and review these when necessary.
- Prioritise aims and establish logical limits, where appropriate, for each factor to be negotiated.
- Learn what you can about the supplier's operations and reputation.
- Understand and know the market and what it offers and the benefits the successful supplier may expect.
- Obtain information about members of the suppliers' negotiating teams and the approach to negotiation that they may adopt, and adjust your approach accordingly.
- Make sure you understand the authority given to the suppliers' negotiators.
- Ensure effective methods of decision-making and communication are established within your own organisation and with the supplier.
- Establish an appropriate method of recording agreements.
- Plan to allow adequate time to avoid pressure for hasty decisions.
- Identify nonnegotiable items.
- Conducting Negotiations
- Aim for a good result for buyer and supplier.
- Agree on the issues and the way to proceed.
- Maintain confidentiality and treat suppliers fairly.
- Be careful about using tactics which may undermine your own negotiating position.
- Ensure the bidder is fully aware of, and understands, the real requirements.
- Ensure that the competitive element is maintained whenever possible, e.g. that inappropriate information regarding the contract or order is not revealed to other competing parties.
- Do not give the supplier the impression that the contract/order is a certainty.
- Maintain an ethical approach according to the standards of conduct both expected by and required of you.
- Ensure your overall strategy is flexible and adaptable to changing circumstances, but seek to settle differences within your team outside the negotiation venue.
- Behave so that ways exist for both sides to reach agreement without loss of face.
- Aim to use negotiating techniques which better enable you to find common ground with the other party, e.g. discuss the argument/rationale both for and against the views adopted by either party on a particular issue. This approach can help in more easily obtaining all the relevant facts, considering all available points of view, and providing a summary of views.
- Recess to caucus when the team need to confer privately.
- Be open-minded and make concessions when good reason exists to do so.
- Look for long-term consequences.
- Use standard forms of agreement whenever possible. Where they are modified or new clauses written, legal advice may be necessary to ensure the changes achieve the intended results.
- Ensure changes are considered in the light of the whole document.
- Be careful not to reject offers which you may wish to accept later.
- Make clear that negotiations are 'subject to contract' until you are ready to commit your organisation.
- Ensure that the essential terms have been actually agreed to and entered into the contract document.
- When dealing with a breach of contract (i.e. post contract), ensure that you have the necessary resources, training and experience available. Make clear that you do not waive any other legal rights that your organisation may have.
PROCUREMENT FRAUD AND CORRUPTION PRACTICE
Procurement is a key area where Organization, interacts financially with the private sector. As such, it is a prime area for fraudulent and corrupt practices.
Please refer to the Organization Fraud Policy to understand better the nature of fraud and Organization response. But the potential damage relating to fraudulent and corrupt practices extends well beyond financial losses. Fraud and corruption pose serious threats to the ability of Organization to achieve its operational objectives. They can hamper implementation of programmes and projects. Moreover, there is a serious risk that the very credibility of Organization, as a trusted, efficient and effective partner is at stake.
Particular attention must be paid to Organization procurement in emergency or crisis settings. When Organization operates in emergency situations, the pressures to achieve results rapidly run the risk of having fraudulent or corrupt operations.
There are several areas of risk in procurement where there is potential for fraud and corruption:
- Gifts and benefits
- Consistency and continuity of process
- Communication with vendors
- Conditions of offer and deadlines
- Invitation to offer documentation
- Finalizing contracts
- Briefing and debriefing sessions
- Documentation
- Conflict of interest
- Supplier probity
The purpose of this notes is to alert Organization personnel of areas of risk for fraud and corrupt practices in procurement, and provide guidance in the prevention, identification and response to instances such fraudulent or corrupt practices. Please be reminded that no guidance can cover all aspects, especially with fraud.
Constant vigilance is needed, with emphasis on certain principles. Fundamental Principles are:
Reinforcing ethical behavior as public servants and particularly in procurement areas, as directed by the Organization policies. This should be supported by adequate training and opportunities to receive advice on ethical dilemmas.
Ensuring adequate procurement planning such as identification and assessment of risks, capacity to address such issues in the Business Unit.
- Ensuring separation of duties.
Acting in a transparent manner during procurement processes, such as posting in advance the procurement schedules and plans, solicitations and contract awards on relevant web sites, newspapers and trade journals. - Ensuring supervision. Managers must personally engage in a regular spot check of procurement transactions, including the files, goods and services. They should also check data base on vendor profiles and procurement transactions for multiple purchase orders. Finally, background checks must be conducted with all suppliers to ensure they are bona fide companies.
- Preparing annual reports on procurement activities.
- Reporting instances of fraud and corruption on a timely manner.
PROCUREMENT FRAUD
• Bid-Rigging
• Falsifying Minority Contractor Status
• Bribes
• Illegal Kickbacks
• Overcharging Materials
• Overcharging Man Hours
• Substandard Materials
• Substandard Workmanship
• Failing to follow contract specifications
• Falsified Progress Reports and Documents