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Although business process outsourcing (BPO) is still in the early adoption stages
for the majority of companies, the increasing volume of BPO activity over the last
approximately 15 years has resulted in significant learning experiences by the
companies implementing BPO, the vendors providing BPO services and the
companies that deliver other products and services associated with BPO. As a
result, the experiences and knowledge of the greater business community has
evolved leading practices across several aspects of the BPO lifecycle. This article
provides information on those leading practices that specifically address the topic
of BPO contract termination, both planned and unplanned.
Termination Planning
“There is no silver bullet that takes care of everything” – senior law practitioner
There is no doubt that all BPO contracts will eventually terminate. However, while
the BPO vendor’s relationship with the business may cease, the service
requirements of the business will generally continue. Proper termination planning
and contracting is critical to ensuring a successful process transition (back) to the
business (client) or new BPO vendor.
“Over the last 20 years we have learned that termination is not especially difficult
and is not a golden handcuff” – senior law practitioner
The need to address contract termination in detail early in the negotiation process
is critical to ensuring the lowest-risk, highest-benefit contract is created. While
parties to a new BPO contract and business relationship are interested in creating
the terms and circumstances which contribute to their mutual success, it is critical
that the discussions include detailed planning for all types of contract termination
events as well. It is a serious mistake for clients to shy away from addressing
contract termination issues at the beginning of the contracting process either for
lack of experience or out of concern for setting a negative tone or damaging their
relationship.
A. Categories of Termination
Expiration or non-renewal
The contract is allowed to expire (expiration terms are invoked). While obviously
self-explanatory, this type of contract termination is somewhat rare; generally
other factors will influence action in the form of termination for convenience or
termination for cause.
Termination for convenience should never be an option for the BPO vendor.
Termination for cause is the most concrete reason for termination and generally
involves two conditions:
“Whether it is BPO, ITO, Transformation or F&A, HR, CMS for the most part the
rights to terminate and the assistance the BPO provider must provide are
generally similar” – senior law practitioner
During the transition phase of the BPO lifecycle, the elements needed to produce
the business process become the responsibility of the BPO vendor. Upon
termination, they must be transferred from the service provider back to the client
or to the new BPO vendor.
2. Service continuation
“The key is that the customer must have business continuity” – senior law
practitioner
Generally, the client will require the continued provision of services from the BPO
vendor for some period of time following termination. This includes the need to
provide service continuation during the time frame the process is being
transitioned back to the client or to a new service provider.
o all services continued - or specific services selected by the client - and in the
same manner as the service delivery model being used prior to termination
unless authorized by the client
o notice provision - including specific notification processes identifying contact
personnel by name
o timing elements - identifying pre- and post-termination assistance time
periods (planning with BPO vendor assistance can begin up to six months
before termination date; this six month period is in addition to the transition
time period described below)
o service levels - including SLA and other performance credits - should not be
affected by any service delivery model changes as indicated above
3. Transition support
Leading Practices
“The best practice in an outsourcing contract takes you to every phase of the
contract” – senior law practitioner
The components listed below summarize the framework defined earlier in this
brief and provide a method for identifying leading practices for BPO contract
termination:
Termination Framework
Categories of termination
1. expiration or non-renewal
2. termination for convenience including early and partial termination
3. termination for cause
Following are a series of leading practices for BPO contract termination which is
based on the cumulative experiences of the BPO client, vendor and the legal
communities. Each of these components can be applied to all three of the
termination categories listed above.
While the points expressed below may be appropriate for your utilization, each
BPO client situation and needs differ substantially and the utilization of any
specific item below must be considered in light of their unique needs.
Categories of Termination
“Most of the BPO providers want to provide both the technology and process, not
use your system - understanding all of the infrastructure pieces is terribly
important” – senior law practitioner
Personnel
o The client or client’s designee may hire any BPO vendor personnel dedicated
to performing the BPO services as of the date of termination notification
o The BPO vendor waives its rights under any contracts with such personnel
restricting their ability to be recruited or hired by the client
o The client or its designee shall have reasonable access to personnel for
interviews and recruitment
o The BPO vendor waives its rights under any contracts with such personnel
restricting their ability to be recruited or hired by the client
o The client or it’s designee shall have reasonable access to personnel for
interviews and recruitment
NOTE: in cases where the above terms cannot be secured, positioning the next
level of negotiation should include the following:
o If hiring is not possible, an option to retain any of the staff currently assigned
to the project, that you select on the contract for up to three years at a rate
reduced from list price rates
o Another approach is to seek a flat maximum percentage of staff assigned to
the client as of notification termination, for example, have the right to hire up
to 30% of the staff
o These terms are most commonly used with large labor arbitrage contracts
where the BPO vendor utilizes high volume of staff in a competitive labor
market, for example with firms in India
Equipment
o obtain consents and assign to client or its designee leases for equipment used
for providing the services
o sell to the client or its designee equipment owned by the BPO vendor and
used for providing the services
o assign any maintenance agreements for such equipment
o provide all documentation relevant to such equipment
Intellectual property
o The BPO vendor will obtain for the client or its designee, on reasonable terms
and conditions, rights to any third party services required for provision of the
services
NOTE: In large BPO deals and especially with transformation contracts vs. labor
arbitrage contracts it can be very difficult to “unwind” the third party contracts;
there can be an enormous quantity of contracts unknown to the client. Although
BPO vendors will naturally seek to eliminate third parties during the course of
BPO contracts in order to extend their services and increase profitability, there
can be a significant challenge with large enterprises. If possible, assigning a high
quality person to a contract management position at the outset of the BPO
contract will significantly reduce the risks associated with reliance on third party
equipment. The key is high quality; traditionally a lower level employee is
assigned and unable to accomplish the complex tasks associated with this effort.
“The vendor has no rights to withhold access to data under any circumstances
and the customer must know where it is and where it is going and know that they
can get access to the data in a form they can use” – senior law practitioner
2. Service continuation
o BPO vendor is obligated to continue to provide services during the termination
assistance period
o scope of services may be reduced by client notice to the BPO vendor
o quality and level of performance during the termination assistance period may
not decline
o service levels continue to apply
o charges remain unchanged
3. Transition support
NOTE: in order to ensure the greatest possible flexibility, the client must establish
their rights with respect to utilizing BPO vendor data as part of any bid process
for a new vendor.
o knowledge transfer
o delivery of documentation and procedures
o delivery of data
o cooperation with recruiting and hiring of personnel
o planning activities associated with the transition process include
o joint review of contract termination assistance requirements
o assessment of current client state, needs and gap analysis
o preparation of a termination assistance plan with BPO vendor’s assistance
o documentation of responsibilities and deadlines in as much detail as possible
Recommendations
The leading practices articulated within this report are the result of several years
of experience; however the constantly changing regulatory, technology, economic
and business environments require constant updating in order to ensure new
issues are properly addressed.
While some firms have successfully negotiated and implemented BPO contract
termination on their own, the level of knowledge and experience in the
marketplace at this time is more generally resident in professional firms such as
legal and consulting practices than within any specific company or the market at
large. As the utilization of BPO increases, and there is every indication that it will,
the availability of experienced and knowledgeable resources in the market for
potential recruitment to internal positions will undoubtedly increase. However, as
of this moment that is not the case, and companies seeking to recruit
experienced BPO staff are generally finding their efforts challenging at best.
Given the importance of contracts in the BPO lifecycle, the specific requirements
associated with business continuity during any BPO related transition are complex
and require joint efforts on the part of the client and BPO vendor to be successful.
Without properly negotiated contract termination components, clients are at
significant risk for business disruption. As evidenced by this report, a high degree
of value should be placed upon ensuring BPO contracts are constructed well in
advance of any termination event, utilizing current and leading practices to
minimize risk and ensure a successful transition.
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Tony West has extensive BPO and IT shared services consulting and management
experience. Most recently he was program manager for Corporate Executive
Board’s Shared Services Roundtable where he led the creation of a BPO research
track, led SSR market expansion to Europe and significantly contributed to the
growth of the Roundtable from 68 member companies to over 300. Prior to this,
Mr. West provided independent consulting services to General Electric Energy
Systems Headquarters group where he performed several projects associated
with their business intelligence center of excellence and IT shared services
organization which directly supported over 9,000 GE Energy Systems managers.
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