Hidden Meaning of Common Phrases

A while ago I started covering multiple aspects of negotiations as they relate to offshore outsourcing. The topic of negotiations is broad and multi-dimensional. Some of the aspects of negotiations are applicable to communications at large, to the areas where regular conversations and negotiations blend in creating just a regular business communications. In that light I’d like to touch upon a very important subject – uncovering hidden meaning of conversations.

Business traditions, common aspects of professional communications and society rituals as well as personal preferences and needs change straightforward communications to slightly encrypted information flow that if not appropriately deciphered could become misleading, deceiving and confusing. Consider a very simple example: You present a system design to java architect who reports to you and after you presentation he says – “I like your system design but IMHO it lacks integrity.” What did he just say? Well, you probably know how to translate this sentence – “Your design sucks and if you were not my boss I would fire you on a spot”.

When working for decent company as a part of trustworthy solid team verbal maces of politics give way to WISIWIG communication style. Even though we still sugarcoat bad news and follow professional standards of communications there is not much hiding of true meaning in our conversations. The situation is quite different when it comes to sales process and negotiations between not too close partners. That’s why you need to study a few techniques that give you the insider look into hidden meanings of conversations.

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Invisibility Cloak of MSA

A Master Service Agreement (MSA) is intended to create a contractual framework for relationships between parties involved. Unfortunately way too often MSAs are used to protect intentional incompliance with a spirit of the agreement. When MSA is written and negotiated the parties bring to the table their knowledge of the domain, in this case offshore outsourcing services. The party more experienced in the space can predict certain behaviors and relationship patterns and appropriately protect themselves from liabilities they bring. More so that party can take advantage of less experienced negotiating partner and create an invisible cloak that will be used to hide issues and drive higher profit from the contract.

I am afraid that sounds very theoretical, vogue and convoluted… Let me suggest a couple of examples:

  • As a service provider I know that customer is likely to be late on their deliverables and my team would be spinning wheels waiting on those deliverables. To protect myself from that potentially serious issue I will put a clause in MSA that would state that if I am waiting on the customer I am still getting paid. That’s just fair, isn’t it? Now, consider what I can do during negotiations – I can downplay the probability of customer delays (most likely using customer’s ego) and shape that clause in a manner that gives me a lot of flexibility. Then, when the opportunity presents itself I can induce waiting period and rip the benefits that already embedded in the MSA.
  • Another, probably most common area, is related to provider dealing with the resources on their side. There are many areas where supplier can negotiate “reasonable” terms that have nothing to do with reality of the situation. For example, if a software developer quits another developer would be put in his/her place and ramp up period should be the industry’s standard 2 weeks. Industry standard? When I bring onboard a new developer it takes 2-3 month for him / her to become fully productive how come it takes four times less with an offshore guy? That’s not the point though, no matter how many weeks of shadowing you might negotiate the realities of delivery against the item in MSA remain practically unknown, and thus could be manipulated to fit provider’s objectives.
  • Even a very straightforward items like “body count” becomes pretty vogue and unenforceable. Imagine that you are trying to count people in organization and people always move from one office to another. Getting the numbers right would be quite challenging. Just a few weeks ago i spend almost a week trying to figure out how many QA engineers I have on staff with my Indian offshore operations. The numbers varied greatly depending on who I’d ask. Most precise figures came from the vendor, in that light resorting to MSA as a lifesaver is only natural. Yet, if you think that if my development manager thinks that there are 2 QA engineers on his project while my provider tells me that there are 5, something is seriously wrong here. I bet it means that I get the work of 2 while paying for 5…

In general what makes an MSA an invisibility cloak is not bad intentions of the vendor, but buyer’s inability or lack of desire to enforce it by staying on the top of engagement. If you do not control the deliverables each step along the way, if you do not verify timesheets and assignments, if you hope that the MSA will prevent me from issues and problems of malicious or delinquent nature you will most likely fail. In that case the MSA will become opaque and impenetrable defense mechanism for the vendor. I guess Invisibility is in the eye of the beholder.

Steps to making an MSA transparent are obvious – focus on execution, control of deliverables, etc. Considering an example of team turnover. A realistic ramp up for a developer in terms of productivity would be 25% first month, 50% second, 75% third and 100% from that point on. In that case over 12 months developer produce 1050% of the monthly allocation. Suppose a developer quits after 6 months and spends one month training a shadow resource (it’s reasonable to assume that that between two of them productivity for that month is 100%). In that case total productivity over the year will be 975% or ~7% less. If we have two replacements over the year the figures would be 900% or ~14% loss of productivity.

That could be easily translated to the rate impact – if your rate for the developer was negotiated at $25 per hour in the second case you paid roughly $27 and $29 in the third. Of course not controlling these figures makes the difference invisible… The magic spell to make the cloak transparent would include linking turnover baseline to rate and more important watching it over the case of the engagement.

Basics of Non-verbal Communications

I started talking about body language and non-verbal communications (commonly referred as NVL) a while ago kicking off the discussion with a picture of consummate liar. NVL is a general topic that applies across industries and domains, the reason I bring it up here is that NVL is exceptionally important during face to face interactions with your partners. The cross cultural aspect of offshore relationships introduces whole another layer of complexity to NVL, often complicating already perplexing aspects of communications. To understand it you need to have a solid grasp on basics of NVL. Crawl before you run so to say. Of course understanding basics of NVL will help you in many other aspects of communications both professional and personal.

Of course this post is only a few brash strokes on a canvas – if you find NVL topic of interest you may want to look into a few books which I found helpful. Anyway…

Body language or non-verbal language refers to conveying messages without words. We are accustomed to use common gestures which are the “words” of NVL for example nodding your head in agreement or shaking it in disagreement, facial expressions – smile, frown, disgust, etc. Many or NVL “words” are much more subtle though. They do communicate message to outside world sometimes much louder than plain words would.

In a personal spoken message according to Albert Mehrabian (Psychology Today, 1968) the total message is communicated via:

  • 7% is conveyed by the words
  • 38% by the vocal tones, and
  • 55% by facial and body expression

How about that? More than half of the message comes across via body language! Talk about the Cons of outsourcing! When you work with someone and do not see him or her the chances are you will miss half of what they are saying or it will take twice as long.

More so the body language is less controlled by our conscious mind and often radiates the true message. Just look around and you will see plenty examples of it. I started writing this post while on my way to the office in BART, as on purpose to help me with an example a couple walked in the car and sit across. The couple was having one of those discussions: her eyes were red and full of tears; they sit on the bench at least a foot apart, her fist were clinched and body pasture uptight / uneasy. He was much more relaxed and appeared in control, he was the one doing all the talking in very persuasive somewhat mechanical manner, the topic was apparently very emotional and she was hanging on his every word, looking deep into his eyes. I could not hear a word yet it was somewhat clear that he did something that had hurt her and now was explaining / asking for forgiveness. By the Fruitvale station there was no more distance between them, his arm was on her shoulders, at the West Oakland they kissed lightly, by the Embarcadero station the kiss was real, the fight was over, and the guy was forgiven. She relaxed as if the seat suddenly became 100 times cozier and looked so much happier, so did he… What she did not see during the conversation, as she was maintaining that rare unbreakable eye contact, was his body language and all classical signs of deception. For me as a side observer sings were obvious as if I was watching an NVL training tape – here is the hand to mouth move, now he’s rubbing his neck, and here goes that proverbial blinking… As I was walking out of the car I saw her happy smile. Isn’t love grant?

There are a few very important elements to reading NVL:

  • North American gestures do not necessarily represent gestures correctly in other ethnic cultures. As a matter of fact you need to make sure to read up on foreign NVL before getting involved in face to face communication with your offshore partners, innocent or positive gestures could be offensive in other cultures, e.g. infamous American feet on the table the gesture that is extremely impolite in many cultures and exceptionally offensive in the Middle East.
  • Many people can easily control what their NVL broadcasts to the outside world in an initial stage of conversation or its “static” stages. For example anyone can start a conversation with a smile, specific body position, etc. As the conversation moves along and becomes more engaging / more emotional the mind loses its control over NVL. If you are trying to read NVL pay specific attention to changes in NVL. Changes in NVL are significantly more important than “stance” or specific elements of NVL displayed for a period of time.
  • You are probably not the only one who is NVL aware. More so some people put substantial effort in mastering in NVL outbound communications and use it as powerful deception or influence techniques. For example a powerful technique taught in many sales classes is mirroring – mimicking conversation partner’s body language. Mirroring is known to increase chances of positive outcome of the conversation – closing the deal; it comes from one of core principals of influence theory; that’s a whole another topic for discussion.

Well, that probably covers the main elements of the foundation.

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10 Offshore Deal Showstoppers

I love English and it is slowly becoming my true second language. While English is still very much a work in progress for me I think I am doing better every day. Nowadays I can even challenge some native speakers with language questions that would get them quite puzzled. For example, is a “showstopper” a good thing? Almost anyone working in IT industry will tell you – No, that’s a very bad thing. Well, it is not exactly correct – take a look in a dictionary… Anyway, I am planning on covering a few showstoppers (in IT sense of the word) that I consider a deal breakers when it comes to hiring an offshore outsourcing vendor.

1. Acting like an idiot –fighting with me, bragging, being condescending, doubting my intelligence, etc. I have seen all too often vendors torpedo themselves by acting rather shallow. Here are just a couple of real life examples:

  • “Nick, we hear it all the time… What a dumb question!”
  • “Why use Skype? We’ll set you up with the software we developed in house – it is 100 times better.”
  • “Nick, you just don’t understand…”
  • “We have the best people in the entire city of Moscow and as a matter of fact in Russia altogether.”
  • “Nick, this is so simple, anyone would understand it. Let me take you through it step by step…”

2. Lying, in particular when the lies are obvious. I typically tell to my prospect offshore vendors upfront that’s I am not a neophyte in outsourcing, yet some of them almost immediately after introduction launch into telling me how their clients saved over 300% in IT costs, about virtually zero turnover ratio, building 100+ member teams in 2 weeks, etc. These claims go beyond lying and fall in category “treating me like an idiot”. There are many areas where I see offshoring vendors commonly bend the truth a bit too far, and that why I always interview prospect employees – all kind of things came to the surface.

3. Playing games. I am not a strong negotiator and do not sell or buy for living. That doesn’t mean that I fall for every trick in the book. More so, if I recognize that a vendor is playing games with me chances are I won’t continue the discussion even without asking them to play a flute first. That is particular common and less offensive when it comes to negotiations, yet still annoying and the chances are will throw a bucket of cold water on my desire to work with the vendor.

4. Bashing competitors. Very common practice that is likely to give a vendor a single benefit – never talking with me again. Here are just a few examples from my recent past:

  • a. From a talk with a Hungarian outsourcing firm: “Nick, are you really comfortable working with Russians? You know that all Russian outsourcing companies are owned by mob, don’t you?” Obviously these guys did not know that I spent first 30 years of my life in Russia…
  • A discussion with a founder of an offshore company in Odessa, Ukraine: “Nick, are you serious about considering China? That’s just silly. I’ve worked with Chinese for years and can tell you they all dumb and lazy…” In response I told the guy that my wife was Chinese; while it is not true, that was so worth it – watching the tap dance that followed.
  • From a discussion with VP of Sales for an outsourcing firm in China talking about another outsourcing firm in China: “I know them very well, and I have to tell you working with them will give you nothing but headaches – huge turnover, very low quality of resources, practically nobody with fluent English…”

5. Showing signs of dysfunctional company. Breakdown in communications, mixed messages, process breakdowns, “right hand doesn’t know what the left hand does”, not responding to my inquiries – these are just some of the common signs of a dysfunctional company. Those signs surfacing during presales / sales process or contract negotiation stage are sure deal killer in my book.

6. Displaying signs of bodyshop. Bodyshops or/and software sweatshops are not the organizations I would partner with for many reasons: low quality of deliverables, incompetent staff, high rate of conflicts – just to name a few. The trick is to recognize it early. Fortunately, signs of bodyshop are often right on the surface. The most common is condescending attitude of sales team towards resources to be involved in delivery. Another one, a bit less obvious, is a very quick turn around on sales materials with no visible impact on sales team (bunch of worker bees in back office slogged through the night to get the drones ready for presentation).

7. Unreasonable pricing. Typically excessive pricing comes decorated with statements such as “we are not the cheapest but we are the best” or “these are just list prices and we can negotiate from here”. That approach turns a large portion of contract negotiations in a slapstick comedy which I do not enjoy. Unreasonably low pricing has a turn offs of a different nature, ranging from “these guys are desperate” to “what’s the catch”.

8. Going over my head or behind my back. Not sure whether that one needs an explanation. Doing something like that is known to be a “corporate culture crime” in any industry / environment. And yet I see it surprisingly often. The funny part is that the email sent to my boss is likely to end up in my inbox with “FYI” or even “Nick, why are thy contacting me?”

9. Applying overly aggressive sales techniques. Having been in the industry for a while I have seen a lot of them ranging from twisting arms and applying pressure or guilt to outright pathetic begging. Once a CEO of midsized Indian outsourcing company literally cried in my office begging my to give his company just one chance, he showed me the pictures of his kids and wept talking about so many of his employees to go hungry – you might think it was a scene from Bollywood tearjerker.

10. Picking a wrong tone for the discussions. That’s a tricky one as everyone has their personal preferences and pet peeves. I think you can’t go wrong by just being consummate professional in all aspects of your communication. For example, I believe that you are better off being cold rather than getting too casual too quick – “Nick, buddy, take a foot of the breaks! When are you goona sign the doc I sent you?” But maybe that’s just me…

Many of the items are not necessary related to integral components or cultural fabric of specific vendor organization. Many of these items are mainly related to sales person who represent the company and you might ask why I would stop working with a vendor just because their sales person is not the sharpest cheese on a platter? Well, there are at least few reasons –

  • Most of the time what you see during sales process is enhanced version of what will appear during the delivery stage.
  • A company that hires and uses sales staff that could be defined by one of terms is probably not worth working with.
  • There are plenty of alternatives to spending time with people who annoy you.

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Basics of Win-win Negotiating

If you heard anything about negotiations you probably heard about win-win negotiations (WWN) as well. As a matter of fact you might have heard the term even if you never dealt with negotiations at all. It’s a very popular buzzword in business, politics, etc. But doesn’t it sound like an oxymoron? Negotiations term in our minds typically translates to two sides with conflicting objectives trying to find a compromise, what can win-win term to do with it?

Well, the first and the most important step in reaching win-win outcomes, is getting away from the cliché above. You need to put yourself in a different state of mind, and that is not that at all complex. If you approach negotiations as “two parties with conflicting objectives trying to find a compromise” that what your negotiation process would be. Negotiations in this case is very much like a sport game or a bitter divorce – there is a fixed amount of assets that could be divided between two parties. In reality most of the businesses negotiations deal with substantially more assets that meets the eye and the assets do not need to be “divided” but distributed / redistributed in some manner, more so in many negotiations new value is created increasing the negotiations asset pool dramatically. Understanding of it allows you to focus on maximizing overall value as well as the value gained by each party, and that leads you to win-win negotiations.

Going forward in this post let’s consider negotiating an initial offshore contract as the main example. Getting to a final contract signature could be a very complex and lengthy process with legal, ops and execs involved, with emotions flying high, many things going wrong, and some seriously bruised egos; that feels in matrimonial terms as a dressed rehearsal for a bitter divorce. Negotiation initial contract could be also a well organized process akin to planning session for long and complex journey.

The first scenario besides being hard on you is also almost a certain recipe for engagement failure. Let’s discuss some of the main techniques and tools that help change typical carpet trading style bargaining into professional win-win process negotiations that are easy on our nerves and establish solid foundation for the engagement success:

Put yourself in WWN state of mind:

  • First thing you need to do is to realize that there is a variable amount of resources to be divided / redistributed and both sides can “win”. Take for example an MSA, I’ve seen some that were just one page long and some over 20 pages long. They serve the same purpose and in large degree touch on the same topics. The breadth and more so depth of them is quite different with longer versions offering many more elements to discuss / negotiate.
  • Starting from early steps of the negotiations your dominant concern should become to maximize joint outcomes. Think about the process of WWN as a process of creating value. In particular search for options of providing additional value for your negotiating partner. For example if you are on a buyer side that might include references, leads, sharing development expertise, helping with building the process maturity, etc.
  • You need to get to a realization that there are many tangible and intangible benefits both parties can offer each other in addition to hard-core contract ingredients. Take for example references or leads a customer the parties can exchange.
  • Understand that the opponent’s interests are not necessarily the way you perceive them, so take the most positive view. Put yourself in your negotiating partner shoes and take the most optimistic outlook at what they may be trying to accomplish. For example, if you are on a buyer side think in terms “if I were the vendor what value I could provide to the buyer? What can I do to exceed their expectations”
  • Focus on interests, not positions, including your own. That is very important point, it is all too often we forget the goals we are trying to accomplish and get our horns locked in fighting on positions, pursuing fleeting often irrelevant objectives. Many times I’ve seen people forgetting the topic of negotiation and only striving to look good, win, prove the point, etc. Well I’ve done it myself…

You can start establishing the foundations of the WWN right after and only after you put yourself in WWN state of mind. One of the most important steps in establishing the foundations is making sure that WWN is indeed a possibility:

  • Always initially ask for more than you expect. That serves to multiple purposes, one of the most important being establishing negotiation space, which in turn helps your opponent to avoid “losing face”.
  • Look for points to negotiate and by all means avoid single-threaded negotiations. When you get to a single-threaded negotiation, or negotiating upon a single point (most common would be “the rate”) the chances of “building additional value” disappear as negotiation turns to dividing a limited amount of resources between two parties. Keep as many points open as possible till you are ready to get to the closure.
  • Get you opponent to act in WWN manner as well. Make sure that your negotiating partner understands that your position is “win-win or no deal”. Get your opponent to take same position as well. That could be not trivial and require substantial effort if your opponent doesn’t have experience in WWN or doesn’t believe in WWN.

The process of WWN is not overly complex; it’s just different from what many people consider “the right thing to do” when it comes to negotiations. In “typical” negotiations one person’s interests oppose the other’s. The dominant concern in this type of bargaining is usually maximizing one’s own interests. Dominant strategies in this mode include manipulation, forcing, and withholding information. In WWN dominant concern is to maximize joint outcomes and dominant strategies include cooperation, sharing information, and mutual problem solving.

After the parties established WWN mindset and environment the process moves towards building a partnership dealing with elements that parties have opposite interest in becomes non-confrontational collaboration rather than face to face combat so common for haggling. When you encounter a topic of that divides / pulls parties apart consider the following techniques:

  • Seek out (brain storm) mutual gain opportunities through out your negotiation process. Every turn in the negotiation offers additional opportunity for discovery and broadening the negotiation landscape. Generate a variety of possibilities before deciding what to do / how to proceed.
  • Seek objective or legitimate standard to base an outcome on, to evaluate the solution. For example Net 30 is the most common (standard) payment term in SMB environment for outsourcing contracts. Working with large organization such as government or pharma you likely have to consider Net 60, when dealing with contractors you may want to consider Net 15 or due upon receipt.
  • Build on commonalities rather than address the differences, consider “we are in this together” as the main metaphor. Sometimes to bring you and your opponent (negotiating partner) on the same side it helps to find a “mutual enemy”. For example when building a initial outsourcing contract instead of fighting around common problems such as “what if you will not deliver on time and my resources are spinning wheels waiting for you…” consider “loss of productivity” as a “mutual enemy”. That set of mind promotes by far more productive discussion and typically results in better contractual framework.

OK, the title of this post is “Basics of Win-win Negotiating”, “basics” not “insights” or “advanced techniques” and I think I am way deep in the weeds now. So, I guess I should stop now… And thank you so much if you still reading. I am afraid I lost most of my readers by now, including myself…

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Negotiations – Basic Categorization

Negotiations are an integral and common part of our lives; we get involved in negotiations many times during a regular day sometimes not even noticing that. We negotiate with other drivers when changing lanes on a highway, with kids when picking a channel on TV, with boss when asking for a vacation, and of course with offshore vendors almost every step along the way of an offshoring engagement.

There are many different forms of negotiation and many forms of communications that might appear or be considered negotiations but in fact are not. So let me put a basic categorization in place:

Dictating is a form of communication that has hardly something in common with negotiations as it typically “one-sided”:

  • One party has a power of the other(s).
  • Often the party that is being dictated to has nothing to gain from the agreement.
  • Typically one party makes the decision.
  • You may consider dictating your decision when there is not alternative communication means, interestingly enough that would be rather unusual situation.
  • In offshore engagement dictating as a method of communications should be only considered in a corner case situation such as when the parties are under tremendous time pressure.

Influencing is a form of communication that is by far better way of enforcing one’s opinion than dictating. Influencing doesn’t equal negotiations, it is often used as one of the negotiation techniques.

  • Typically one party has a power of the other(s)
  • Depending on situation and reasons behind influencing the party that is being influenced may have nothing to gain from the agreement.
  • Typically one party makes the decision.
  • Influencing is an exceptionally powerful way of getting what you want; there are many techniques of influencing worth stand alone discussion.
  • In offshore engagement influencing can be used in many dimensions and situations, in particular as one of techniques in the negotiation processes, especially if the parties are far apart and time pressure is manageable.

Violent Agreement is an all too common form of communications. It is amazing how often you see violent agreement discussions on variety of topics. In general violent agreement has little to do with negotiations besides the fact that it is often a part of those…

  • Both parties agree on the approach but not aware of it.
  • Agreement is not recognized or not apparent.
  • Typically there is an implied need for a discussion that keeps parties involved.

Haggling is a basic form of negotiations. I use this term to highlight somewhat primitive nature of the process. At the same time haggling is the “mother” of all negotiation techniques, rules and processes.

  • Typically there is give and take from both sides.
  • Haggling often have unrealistic low and high asks.
  • Typically related to something very specific, like money.
  • Most often haggling is single-threaded – involves a single topic / resource.
  • Haggling is common for offshore negotiations, all too typical I’d say. Most commonly it is related to rate. Often a very primitive rude form of haggling emerges from professional negotiation gone sour. Sometimes it stays disguised as win-win-negotiations sometimes the parties do not bother to pretend. In any case

Win-win negotiations is an ultimate form of business negotiations also known as “building value” negotiation approach. I will put a stand alone post or a couple on WWN in a near future.

  • Finding a way for both parties to gain something from an agreed upon solution.
  • Typically both parties have something to gain.
  • Often used in circumstances where both parties have approximately same level of power.
  • WWN is one of the best ways to address any complex negotiations.
  • In offshore relationship WWN approach could be used in almost every aspect of relationship, with negotiation of the outsourcing agreement being a great example.

In real business life negotiations often fall somewhere between pure forms of haggling and WWN and borrow some elements from other communication forms.

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Main Forces of Negotiation

A little while ago I started a thread covering general negotiation tips, tricks, and techniques. Just for the sake of consistency let me repeat the caveat I mentioned before: negotiation is a complex skill if not art. If negotiations are not particular your cup of tea you may consider involving professionals, in particular those who have experience negotiating offshore contracts. At least you owe it to yourself to go through some serious reading on the topic prior to diving into the deal making. Many of these books cover the main forces of negotiation (Time, Information and Power) in great details so I will take a very superficial approach in covering them. In addition I touch upon two more forces which are at least as important yet are not typically covered – Skills & Experience.

The topic of negotiations is complex and comprehensive; each of the bullets below probably deserves at least a few page long post by itself. So by any means do not expect that reading this post will make you a professional negotiator. I do hope that it would be a good check list to keep handy for your next opportunity to negotiate.

Let start with Time:

The main rule of Time is very simple: The party under the greatest time pressure is the one at disadvantage / the one to lose the ground. Here are a few main tips on dealing with Time in consideration of the rule:

  • Do your best not to put yourself under the time pressure; for example committing to your management that you will have offshore contract done by end of month would not be a good idea.
  • Learn to recognize time pressures your opponent is under.
  • Never reveal that you are under time pressure; that shows your weakness and gives your opponents more armor.
  • Try to put your opponent under time pressure.
  • Recognized when your opponent uses time pressure against you (it’s often artificial / manipulation that could be easily deflected).
  • As the time flies away and the finish line approaches the time pressure grows and the party under the highest pressure start losing the ground. Typically 80% of concessions are made during last 20% of the negotiation time span, so do not leave too much to the end.
  • Be aware of special timing, e.g. end of year / quarter bargaining, but do not be swayed by it, it could be nothing but artificial – just another “time pressure building” technique.

The next major force of negotiations is Information:

You can consider Information as the currency in the world of negotiations. The side that has more information pertaining to the topic of negotiations has the upper hand. Offshore negotiations offer a great illustration of that rule. Consider an example of negotiations around a blended rate. The vendor knows the rates to be paid to the team members, anticipated turnover rate, cost of overhead and all the other components that define exact/true cost of the team. The vendor also has other factors that affect the minimum number the vendor is prepared to agree upon. If the customer has access to the same information they can as easily define minimum rate and take hard stance on negotiation driving to get the bottom line price.

Another illustration is access to specific information such as pressures that would make your opponent to be more flexible. For example if you learn that the sales person who is working with you had not met his quote and could lose his job if this deal is not closed. Knowing that allows you to time negotiations close to say quarter end and let the time pressure itself drive the rates down.

Same goes in the opposite direction – for example a vendor just learned that a couple of competitors bailed out from the negotiations with you. The vendor could easily use this knowledge to get more concessions out of you.

Manipulation of information is a strategy game that requires in-depth understanding of goals and objectives of the process. Here are some of the guidelines for getting better at this game:

  • Gather as much as you can information prior to entering the negotiation and continue collecting it through out the negotiation process.
  • Be very careful in disclosing and distributing information, some supposedly innocuous facts can turned out to be critical ingredients in the information repository. Consider following a good old “Need to Know” principle.
  • Consider disclosing information as trading of goods. For example if I disclose some information to you I would expect a similar act or a concession of different nature in return.
  • At the same time you should understand that information sharing is a mandatory component of negotiations in particular when searching for a win-win solution.
  • Never assume that you know all the facts or that your information is correct.

The 3rd major force of negotiations is typically called Power. At a very high level, Power is ability to influence people, make them do things that otherwise they would not do. Power by itself is just ability, application of power that what makes the difference in the behavior of people.

There are several main ingredients of Power as it pertains to the negotiations:

  • Situation power, e.g. buyer vs. seller in offshore contract negotiations.
  • Reward power, ability to provide rewards.
  • Coercive power, ability to punish, intimidate.
  • Title / position power; note high importance of it in offshore negotiations.
  • Expertise power.
  • Power of flexibility, often undermined yet exceptionally potent ingredient.
  • Character power, charisma, consistency, integrity, command of respect.

Interestingly enough the most important is not the Power itself but its perception. You can say that Power in some sense is similar to beauty: power lies in the eye of the beholder. Another way to put it is if you are perceived in the position of Power you are.

Consider “title” power – if your opponent perceives you as a high ranking official they would interpret your statements in that way even if in reality you are not. For another example of perception of power consider asking your boss for a raise (I assume that you are top notch contributor). Things that could be going through your mind would assign your boss the coercive power – “what if as a result I get fired!?” while the boss might not have this power (firing you could be disastrous for the organization) and the only thoughts in your boss mind would be “how cheap can I get out of it” assigning you the coercive power (ability to punish by quitting).

Negotiations is a game of skill, and as a matter of fact many skills, so I prefer to include the Skill in the list of the main forces of negotiations. The list that covers skills required for running successful negotiations would be very long and complex, so I take a high road suggesting only the main areas. And even though it is greatly simplified the list might seem intimidating, yet you should consider it in its comparison to the task. Offshore negotiations are not necessary as complex or stressful as Union or hostage negotiations, so you do not have to have all the skills at top level. More so the skills may be distributed among the team members and that would make achieving the success much more realistic task.

Foundational skills or ability to –

  • Learn and improve.
  • Control your own emotional state.
  • Maintain your own integrity.

Specific skills pertaining to negotiation process –

  • Setting goals, objectives, outcomes.
  • Defining and staying within boundaries, limits, constraints, conditions.
  • Using negotiating techniques – recognizing, using and countering negotiating gambits.
  • Finding and driving for a Win-Win outcome whenever is possible.
  • Obtaining and maintaining required authority

Analytical abilities are particular important for defining game plan and assessment of opponent’s position / game plan –

  • Negotiation limits / negotiation space.
  • Best Alternative to Negotiated Agreement (BATNA).
  • Final Exit Point (FEP) and a Reservation Point (RP).
  • Offers, propositions, tactics, techniques.

Behavioral skills and abilities –

  • Focus
  • Observation skills
  • Planning and organizational skills
  • Rapport building skills
  • Flexibility
  • Creativity
  • Tenacity

Command of communication techniques –

  • Presentation skills
  • Active listening
  • Art of silence
  • Read opponent’s non-verbal language
  • Communicate non-verbally
  • Information recovery

And the last in the list of the main forces of negotiation is Experience. The only way most of us can become good negotiators is by consistent learning and using multiple aspects of the art in real life. As in many areas of our activities it comes down to mileage, the more you sail the better you get at controlling your boat…

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Business Negotiations: Initial Discussions

Placing an outsourcing contract, scoping a fixed bid development project, making a substantial change in the engagement scope, resolving conflict on quality of service or project deliverables… all these activities require negotiations, sometimes rather involved and lengthy. One of the first steps in business negotiations, the one that often sets the tone of the negotiation is initial discussions.

Even small scope negotiations can benefit from initial discussions being a stand-alone step. I view it critically important in many regards, one of the most important being assuring that you “do not react but respond” – deal with the issue in the most constructive manner.

Let’s consider a situation when your offshore partner just announced that a key employee is leaving the team. Instead of hitting the roof and screaming in a phone that this just the final straw and heads will roll you may want to hear what the vendor has in mind in dealing with the situation, chances are they may have a plan.

The main purpose of the initial discussion is just that – hear out your opponent. Specifically that means:

  • Listen attentively and take detailed notes.
  • Separate people from the problems.
  • Focus on interests not positions.

Let’s slightly change the situation – the vendor presented you the problem (say it was a quick call or email) and you had a chance to digest it to some degree. Next discussion is likely to require you to present your side:

  • Position (now you can say that you can’t take it anymore).
  • Expected outcomes.
  • Selected constraints. Your true situation might have more complex structure and constraints from what you are prepared to share with you opponent.
  • Introduce negotiation team. That is typical for more formal / complex business negotiations.
  • Confirm negotiation authority. That is not a bad thing to do even for small negotiations; it is required for comprehensive / formal ones.

While initial discussion is a step forward to the negotiating table in a large degree you are still in continue with information gathering. Initial discussion(s) offer yet another opportunity to learn about the situation and balance of power, in particular you typically get a window into:

  • People involved in the negotiations, their style and skills.
  • Your opponent situation and perceptions.
  • Interests, goals and objectives behind their position.

Additionally, initial discussion will give you a chance to establish rapport with the members of your opponent’s negotiating team. This is critical success factor of any negotiation, as a matter of fact the more complex and more confrontational is the negotiation the import important is to establish rapport. It is in particular important for cross cultural negotiations.

And finally a few simple tips:

  • Listen twice as much as you talk. A lot is written about active listening and it is still one of the most underappreciated skills.
  • Stay with the game plan.
  • Avid confrontation… unless it’s the game plan.
  • Avoid commitments.
  • Don’t spill the beans.

Offshore Negotiations: a Macro View

Negotiations are an integral part of business life, that’s pretty much a truism. More so negotiations for business are very much like breathing for human beings. Sometimes it seems that you can not make a single step without getting involved in some kind of negotiations – project scope / resources / time / quality; multiple aspects of employment relationships; vendor relationships; customer relationships; and so on. So it’s no surprise that an ability to negotiate is one of those mandatory job requirements that somehow never make it to job description.

While negotiation skills are important for any professional they are particular important and are put to real test when working with third parties and in particular with offshore. That’s why I decided to put a few posts to cover some of the most important elements of the subject.

Offshore negotiations like many other ones often come down to drawing a line in sand demarcating what’s mine and what’s yours – reaching an agreement on resource allocation, responsibilities, financial aspects and so on. Negotiating in its isolated “pure” form is an ongoing and often major portion of communications through the lifecycle of the offshore partnership. It typically comes up first during the initial contract negotiations, possibly as early as signing an NDA and later comes up at every change in direction ort pace.

What institutes a good negotiation? In a classic form a negotiated agreement is considered good if it is fair, wise, was reached efficiently, and is stable. I would a few more bytes to it – A negotiation went well if your interests are addressed, relationships are intact, you did not lose more than you gained in the process, you did not get more than you bargained for, and you feel good about it.

So, how do we get there?

First and the most important – before entering any negotiation you should understand the situation, the subject of negotiations, and what is at stake. It is amazing how often people jump into negotiation when there is nothing to negotiate (both parties are in violent agreement), too early or too late, or when negotiation is not the way to move forward. Identify the situation by ask yourself:

  • What are the problems / issues?
  • What are the affected parties?
  • What are the timeframes?

Just a few days ago one of my providers called me with rather unexpected message “Nick, we need to increase the rate for some of our developers!” My initial reaction could have been “Rodrigo, are you completely out of your mind?” Tell you the truth that it actually was, internally. I did manage not to say it and instead asked the questions similar to those above. A few minutes late I realized that the problem was far less urgent and severe and that I had a plenty of negotiation space with potentially very promising outcomes…

Second step is gathering the information. In some negotiations that could be a rather involved process and it deserves a stand alone post, maybe a few; for now I will just mention the high points:

  • Identify high-level information pertaining to the negotiation for the all parties involved.
  • Identify position of your opponents – their stated goals and objectives in terms of what they “want”.
  • Discover true interests behind the positions of your opponents – their true goals and objectives or what they actually “need”.
  • Identify the situation as it pertains to your negotiation power, timing and skills.
  • Discover the same about the situation of your opponents, pressures they are under.

Third step (time wise it could be preceding second step or done in parallel with it) involves defining your own position, your own “wants” and “needs”. As Seneca put it: “If a man knows not what harbor he seeks, any wind is the right wind.” Interestingly enough negotiating for the sake of negotiating is not such an uncommon event. Maybe an emotional rollercoaster of high pressure negotiations, blood taste in the mouth, or twisted pleasure of seeing your negotiation partner crumble to pieces is enough of a motivation, but what will it do for you in a long term?

Start with setting the desired outcomes – Best and Realistic:

  • What exactly are we trying to achieve by the negotiations?
  • What / Where / When / How do we want it?
  • What / Where / When / How do we NOT want it?
  • What is gained / lost by resolution?
  • What are the achievement criteria?

Next go through some brainstorming and identify your alternatives:

  • What are the alternatives that are available away from the table?
  • What is your Best Alternative To Negotiated Agreement (BATNA)?
  • What is gained / lost in case of no resolution?
  • Exactly What / Where / When / How is BATNA manifested?
  • Exit criteria. At what point do you stop negotiating and revert to BATNA?

The fourth step, involves tactical and organizational actions for preparing to the “official negotiations” or the process of reaching the agreement. It involves obtaining negotiating authority, setting up negotiation team and addressing all logistic components. There is much to be said about setting up environment for negotiation, in particular in cross-cultural negotiations.

And finally the last step – reaching the agreement. This step is by far the most complex and comprehensive. It requires plenty of skills, knowledge and patience. This step might vary in its complexity, length and structure depending on the complexity of the topic, positions of the parties involved, negotiation space, techniques, and many other dimensions. It definitely deserves a stand-alone post. For now let me just mention a few elements common for many comprehensive business negotiations:

  • Initial Discussion(s) – at this stage the parties typically outline negotiations landscape and share their “wants”.
  • Regrouping / Final Preparation – at this stage the negotiating teams define / adjust their strategy and tactical approach.
  • Reaching an agreement – the “face to face combat”, the heart of the negotiations.
  • Paperwork – preparing and finalizing documentation pertaining to the subject negations.
  • Closure – signatures, handshakes, and communications.

OK, that’s enough for now; it also looks like I will need at least half a dozen of follow on posts; that will keep me busy. Hopefully there will be seats on BART at least on one leg of my commute, otherwise that might take awhile…

Offshore Negotiations Basics: Rules of Haggling

hugglingFirst, let me repeat something I wrote in an earlier post: negotiation is a complex skill if not art. If negotiations are not particular your cup of tea you may consider involving professionals, in particular those who have experience negotiating offshore contracts. At least you owe it to yourself to go through some serious reading on the topic prior to diving into the deal making. Let me recommend a few classic books on the subject: Secrets of Power Negotiatingby Roger Dawson, You Can Negotiate Anything by Herb Cohen, and Getting Past No: Negotiating with Difficult People by William Ury.

Through the years in IT leadership position I negotiated many contracts with service providers, various vendors, consultants, employees and offshore companies. That doesn’t make me professional, so do take my advice with a grain of salt. More so, every negotiation is different in so many aspects that what worked in one could absolutely fail you in another.

Anyway, as introduction to offshore contract negotiations I am going to cover ten golden rules of haggling. You might ask: what does it have to do with professional contract negotiations? Well, barraging is the mother of all negotiations and more so there is a high chance that you will be negotiating with a vendor who’s coming from a culture with deep roots in a market style haggling.

Here they are the Ten Golden Rules:

  1. You must be ready to walk away. If you are attached to the goals of negotiation, if you can not walk away, you ability to get what you want is significantly impaired. Using Herb Cohen’s advice from You Can Negotiate Anything – you should care, but not that much. I strongly recommend reading Herb’s book or even better get it in audio version – he’s a great story teller and covers many of these rules at great depth.
  2. Look / act interested but never desperate. As a matter of fact if you feel / are desperate you should get someone else to negotiate for you. Acting is an extension of the rule number one. Basically you need to show that “you care, but not that much” and are ready to walk away.
  3. Keep your eyes on the ball. Negotiation is emotional process and in order to be successful you should never forget what the process is all about, what the goals and the rules are.
  4. Don’t try impress on the other side. That’s to some degree an extension of the rule 3. Your image is not the subject of the negotiations so just keep your eyes on the ball.
  5. Always ask for more than you expect. First, you might just get it. Even more important is that higher demands create negotiation space for both partners, and allow your opponent to save face even if they make bigger concessions.
  6. Gasp and act shocked (flinch) at the other side first proposal. This simple technique does a few things: it sets the pace of negotiation, puts you in the right set of mind, and helps to push your opponent to make the first concession.
  7. Never say yes to the first offer. By saying yes to the first offer you are not only setting yourself up for missing on a possibly huge opportunity, you are leaving your opponent with buyer / seller remorse.
  8. Never go down on price or make a concession first. Get the other side to step forward. Like many of the golden rules that one is easier said that done so if you are stuck just remember the rule one and make it clear that you are ready to walk away.
  9. Never make a concession without asking for something in return. Breaking this rule will put you up on a slippery slope of chain concessions.
  10. Always congratulate the other side. That is more than just being polite, it leaves the best path for the future negotiations.

Now let me give you the unofficial 11th rule: Sometimes the rules meant to be broken or Know where to stop. In many situations following golden rules might be detrimental to building a win-win relationship. For example if the other party is inexperienced in negotiations or in providing the services as the result your opponent gives up to much ground, paints itself in the corner, or brings negotiation to an impasse.

Your negotiating opponent is meant to be you partner and probably for a long time. So consider a metaphor of sparing with your friend in a kick-boxing gym: while you do want to win you do not want to inflict lasting injuries; now add to it little twist – what if you are far superior to your friend in the skill and power.

A few months ago acting as an intermediary between a US-based customer and a small, bright and very ambitious outsourcing company I was helping to negotiate a fixed bid engagement for developing a windows app. The initial bid came with the “asking” price of ~$100K. At that point I could have pulled out my 10 golden rules check list, I could have flinched, whined, screamed, pushed and threatened to walk away… and would’ve probably gotten the contract down to $70K or $80K. Instead I got on a phone with the vendor, than with the customer, than with vendor’s technical team, back with the client, etc. I finally got them to agree on $350K after two weeks of strenuous back and force. Yes, not a typo, 3.5 times the original bid. And that number I am certain would still keep the vendor on their toes and gives the client superb deal for the product.

You could easily reverse engineer the situation – the client being not very clear with the requirements vs. provider with typical overly aggressive “developer” mind set. All too common I am afraid. I love those small, bright and ambitious companies; unfortunately after being beaten into pulp by “professional” negotiators on the client side they either never deliver or end up one-hit wonders.

Researching Offshore Rates

Questions about offshore rates in different geographies, for different positions and roles come all too often. I covered a few aspects of this subject in my earlier posts, for example Offshore Developer Rates and Negotiating a Fair Rate. One of the points made in these posts was that the rate is just a contributing factor to the bottom line – the Total Cost of Outsourcing. Nevertheless, the rate is important and getting information about what’s fair for a specific position, geography, region, etc. could be extremely valuable, especially during the initial stage of the vendor selection.

Getting ballpark figures for the rates is very simple; all you need to do is just ask. The trick is to understand trends and the negotiation space. For example when a few weeks ago a mid-sized nearshore provider suggested that their standard billing rate is 35-40 USD for QA engineer and 40-50 USD for Java Developer I knew that I am talking with someone with a lots of guts or sense of humor.

In a large degree rates are marked up wages. The mark up includes many elements such as employee benefits, operations overhead, sales and marketing overhead, G&A, and so on plus expected margin. When dealing with large providers (public companies) many essential facts and ratios could be found in financial docs that are open to general public. Small vendors can be better at some cost cutting techniques but they loose on the “economy of scale” so the chances are the key ratios would be similar. In that light the question of fair rates comes down to salaries and expected margins.

When you negotiating with an offshore vendor the margins are the negotiation space; they can not typically fall below minimally expected and of course never cut into salary. That’s unless the vendor operates under famous model “we lose money on every deal but we make up in volume”.

Consider an example: you pick a couple vendors that appear to be fairly similar in most aspects; one of them has ODC based in Shanghai and anther in Shenzhen. Both vendors offer you the same rates.  Which of them is more likely to offer steeper discounts? As you can imagine knowing that salary a developer can expect in Shanghai is ~15% higher than in Shenzhen would be helpful.

To determine the salary that an average vendor needs to pay to its employees you would need to go through some research. The figures change constantly, substantially and depend on many parameters – local economic situation, dollar exchange rate and specific location being the most important.

The best thing is if you can get your hands on a credible research, those could be rather expensive though. If that is price prohibitive you should talk with your omnipotent friend Google. It is amazing how much info you can find. For example just look at this jewel – Salary Trends in China Present New Business Opportunities. Barak Paztal, the author of the post used one of the best ways of discovering current salary and salary trends – he went through backdoor of popular job board to present data which is priceless for those planning to outsource or build their own shops in China. For example did you know that “General trends show that over the last 12 months salaries have been decreasing in China. The average decline from an annual salary of $5,344 hovers at 11%, or $4,977.” BTW, that’s about 7 times lower than in the USA. Or look at that:

“Software engineers in China regularly earn 44% more than the average. They will earn an annual salary of $7,200, while in Beijing they can expect to earn an additional 30% or $9,360. Companies seeking to hire software engineers can save up to 40% of salary costs by hiring in cities like Dalian, the software outsourcing center of China where the average salary is $7,056 or Jinan, with 5M people and few hours by train from Beijing with an average salary of $5,760. Office space in these areas can also help to dramatically reduce costs, in particular now that they have reached peak levels, as demonstrated in Beijing following the Olympics.”

When looking for just ballpark assessment you can do away without the access to backdoor of the job boards. Just browsing through sufficient number of job ads will give you a great preview. Another simple way to get high level salary info is through rates available on freelancer sites such as elance.com, odesk.com or guru.com.

Once again since the goal here is not competitive intelligence but trends analysis the ballpark estimates would do just fine.

Offshore Payment Models

Needless to say that payments and payment models are some of the most important aspects of an outsourcing contract. While these items typically well understood and relate well to similar terms in any other consulting contracts they still require extreme attention and caution especially considering caveats off the offshore outsourcing.

The payment models in offshore contracts derived from the underlying contact execution models with most popular being Time & Material and Fixed Bid, see Offshore Model Selection: T&M vs. Fixed Bid.

Time & Material model typically translates to a payment per hour model. The rates / payment approach could be defined at a coarser granularity (e.g. week or month) but the nature of the payment methodology remains the same. If the hourly rate is used the vendor submits invoices with agreed upon frequency (most typical is monthly, small vendors often ask for bi-weekly or even weekly payment schedule). The invoice or its supporting material include hours of allocation for each resource for the corresponding period, rate and totals.

There are a few elements related to that pricing model, most important being a concept of minimum allocation. Minimum allocation defines the minimum number of hours in a month that a resource supposed to be engaged independently of buyer’s induced failures in work allocation.
You need to be careful in analysis of the associated contract language as a minimum allocation could become extremely costly.

Another set of contract elements highly relevant to hourly payment schedules is similar to minimum allocation and is related to work allocation / assignments. If a developer is waiting for business requirements clarifications from the buyer and is not engaged in any meaningful activities, who is paying for his/her time? The fair approach is for the buyer to pay for this time and for the vendor to make reasonable business efforts to keep developer productively engaged on project related activities. Make sure to have corresponding language in your contract.

One of the most popular forms of coarse granularity time based models is one often referred as an FTE model; here FTE stands for a “full time equivalent”. Under that model the rate is most typically negotiated on a per month basis. There are a few issues associated with that model that basically bringing it back to the hourly model. The first question is the workload allocation for the month with most typical number being 168 hours. The next set of issues comes from dealing with overtime, handling time off, vacations, holiday, etc. All these elements need to be understood and agreed upon by both parties.

My approach to negotiating FTE contracts is typically based around following mind set – “It is my responsibility to provide you with workload of 168 hours a month, if the employee can not be allocated for that number of hours the rate must be proportionally reduced. I also expect you to do your best to keep the employee meaningfully engaged in case I hit any obstacle or experience delays.”

Fixed Bid engagement models require a different approach for invoicing / payments. For FB engagement of a project nature the most common methodology is Milestone Payments. The idea is fairly simple – the cost of the project is divided in portions that to some degree correspond to the effort for delivery of a specific milestone. If the milestones are separated by substantial time some additional, often artificial, milestone are inserted in the project schedule to accommodate for smoother cash flow. The most important item to consider when following Milestone model is the process of had-over and acceptance of the milestones. The most frequent payment issues associated failures on FB projects related to small problems that pass through accumulate and accumulate towards the final milestone.

There are multiple variations in payment models that based on one or a combination of the models above. A few are worth mentioning:

  • “Prepayment” a form of milestone payment associated with initiation of project. It is most frequently used by small vendors who can not afford the risk and expense of ramping the project up. I personally prefer to avoid prepayments. It doesn’t mean that you should exclude vendors asking for prepayment, it only means the some additional work in contract negotiation is required, for example if the resource / environment ramp up is the reason for prepayment, it could be shape as a milestone. In other cases an escrow could be considered to avoid some of the obvious risks of prepayment.
  • Time-based (e.g. monthly) installments on FB contracts. I strongly recommend against that approach. In my view it really increases inherit risks of FB model. There are some meaningful situations where monthly payment associated with FB contract; that in particular common for non-project FB engagement, e.g. provision of services under SLA.
  • “Bonuses and Penalties.” This is an interesting concept which could be productively applied in FB contracts for example for delivering before / after specific deadline. The concept must be dealt with a great caution though, it could become a wrong motivator and promote bad practices. Thus one of the mandatory conditions is for the vendor to receive a bonus all aspects of the delivery must be considered / met. Another important aspect to consider is the size of the bonus (as a percentage of the overall payment amount). If the size of the bonus is too small it stops making any difference if it’s too big it could ruin the project – just consider the situation when the vendor realizes in mid of the project that there is no way the deadline could be met and a huge penalty is inevitable.

Offshore Model Selection: T&M vs. Fixed Bid

It’s quite amusing to see many offshore vendors to use LinkedIn Answers for self-promotion but instead of leads generating volumes of offshore-bashing. However amid of self-advertising and political positions you can find browsing this section helpful in many aspects, no cloud without a silver lining I guess… This time LinkedIn Answers offered an interesting discussion topic with a help from Irina Semenova: When outsourcing projects offshore which model is preferable – Time and Materials or Fixed Bid? And my answer is… “It depends.”

What model is going to work for your specific engagement depends on the project goals & objectives, both parties’ org structure and experience, SDLC maturity and style, etc. The selection should be made by careful analysis of all ingredients and with consideration of classic engagement objectives: scope, time, budget, and quality. Below are some tips that you may want consider when making the decision.

If the scope of the engagement is extremely well defined and firmly set Fixed Bid model is very natural way to go. Some of my friends from Agile Camp would probably say that the scope being “extremely well defined and firmly set” is an oxymoron – requirements always change, etc. Well, I do not want to start a philosophical discussion; instead, I’d rather mention a few items that often overlooked in scoping exercises:

  • Non-functional Requirements. This is not a very good term but widely used for some reason. By non-functional requirements I mean horizontal requirements that apply to the product not to its functionality. These requirements typically include dimensions such as performance, scalability, maintainability, interoperability, etc. They are extremely important for any project but often overlooked and dealt with in catch up mode exploding the cost of the engagement. For FB projects you not only must specify upfront the requirements but also defined how the compliance would be verified.
  • Delivery Requirements. Sometimes considered a subset of non-functional requirements the specifics of engagement delivery affect the cost dramatically. The vendor typically has its own benchmarks in that respect which could be drastically different from your expectations. Do you expect to have 80% unit test code coverage? Do you expect well-document DB design delivered in Erwin format? All these requirements must be spelled out before FB contract is put in place.
  • Communications. The volume of communication is a notable aspect in vendor’s overhead and thus affect the cost of the project. You might be expecting daily project updates and rigorous reporting at multiple levels while the vendor thinks just milestone updates and PMO quarterly meetings. It’s much better to bridge the gap up front.
  • Quality. It is extremely important to specify Acceptance Criteria in all aspects of Quality of the product as well as process of Acceptance. Metrics and methodology definition should be one of the inputs to the vendor for defining FB price tag.
  • Change Management. Any vendor that has meaningful experience in delivering FB engagements has Change Management well under control. What vendor could be not familiar with is your specific change rate and budget change tolerance. It takes tremendous expertise on both side of the relationship to manage Change Management and avoid scope creep wars.

If addressing items above in addition to developing meticulous definition of product requirements falls outside of your capabilities you can hire your vendor to do it for you on a Time and Material basis. That appears like a nice T&M segue into a FB model. There are a few traps associated with that model though. The main being a potential conflict of interest: Will the vendor has your best interest in heart and won’t use this exercise to dramatically increase the scope of the project? That’s not unheard of. You can mitigate that risk by hiring different vendors for FB and T&M portions of your engagement; that approach of course has its own drawbacks.

With all these complexities of FB model why even consider it? Why don’t just go with T&M for all types of engagement? Well, some projects land themselves extremely well in T&M space, for example a classic team augmentation – situations when you just need a team of QA engineers added to your organization during major release, or you need a graphical artist to assist with development website, etc. There are as well a plenty of other situations that make a short or long term T&M arrangement the most meaningful. You should not rule out a FB model for engagements of recurring nature and augmentation tasks though. For example an ongoing legacy s/w maintenance and support task appears as a great candidate for T&M, but it could be extremely well handled as FB SLA arrangement.

A popular concept states that vendors prefer T&M model because it allows them to achieve maximum utilization of resources while being shielded from customer failures to deliver on their obligations. That is a major misconception. Under true T&M model the vendor gets paid only for work being done and is not for waiting for customer to make up their mind. In majority of the situations that would mean that developers would be sitting on their hands for major portion of the project. So typically T&M engagements are sold as “minimum utilization” models, in those the customer pays the maximum of minimum agreed upon amount and T&M amount. That model shields the vendor quite well.

In that light T&M model doesn’t only shield the provider it also reduces dramatically inevitable scope creep wars on fixed bid projects. In many aspects it is good for both sides. The main challenges it presents for the buyer are somewhat hidden and thus create serious traps. Here are just a few to consider:

  • Carefully constructed T&M project opens a huge opportunity for add-on sales and could generate enormous amount of unnecessary work. As proverbial car salesmen IT consultants are exceptionally skilled in upselling the customer, keeping themselves occupied, and discovering new opportunities. On the other hand buyers become their own worst enemies as T&M promotes sloppiness in handling scope. As a result T&M projects, unless handled properly, have a high probability of costing more, often much more than expected. The example which comes to mind is ERP implementation which I observed at a large automotive manufacturer; being budgeted initially at $30MM it ended up costing in excess of $300MM.
  • T&M projects require meticulous time tracking which could become a considerable overhead. I remember myself spending easily 1 hour a day on keeping track of my time in three systems, of course that hour was billed to the customer as well. For developers that are not used to consulting lifestyle timetracking is true bane of existence, often resulting in malicious compliance producing little to no meaningful results.
  • T&M projects are more difficult to budget for and are real pain in GL allocation when services cover multiple cost centers / etc. Appropriate allocation in particular requires detailed time tracking with its respective impact and reliability issues.

Using Contracts to Mitigate Offshore Risks

MSA – a “horizontal” component of an offshore contract can become a powerful tool in managing an offshore engagement and mitigating its risks. My approach to turning MSA in such tool includes several main steps:

1. Identify specific risks associated with the engagement. See my earlier post Top outsourcing risks as an example.

2. Rank the risks and select top ones; limit the selection to 5-10 items. The reason I recommend limiting the list is the cost / length of negotiation process.

3. Find out the reasons the risk mitigation is not in place / insufficient. You need to understand why this presents the problem for the vendor; without that knowledge negotiations are likely to hit an impasse.

4. Identify your preferred risk mitigation plan(s). The plan should include what both parties should do to reduce / eliminate / mitigate the risk

5. Insert and negotiate corresponding language in the MSA. Keep in mind that negotiating each of the topics may require multiple revisions and some give and take on both sides. Taking a win-win approach to the negotiation from early on is essential.

Let’s consider a greatly simplified example: Let’s assume that you are negotiating an MSA with Indian outsourcing company and after second step arrived with top two risk items: “Excessive resource turnover” and “Technical capability of the resources”.

Why is excessive turnover so common? Could it be avoided? Why don’t they (the vendor) just fix it? Well, they can not. The employment situation in India when it comes to IT resource is similar to what we’ve seen in Silicon Valley during the peak of DOT COM.  Can you spell Java? Hired! Inevitably job hopping becomes common… So, facing the facts, you know that there will be turnover on the project, and it will be higher than the 20% average you vendor told you about (see my post Outsourcing Myths: Turnover Ratio).

What can you do to deal with inexorable? Here are just a few options – maintain ongoing recruiting efforts, keeping staff on stand by, continues investment in crosspollination, knowledge management, documenting everything, etc. The list of mitigating techniques goes on and on. Your vendor is probably has a bunch of them in place. Well, it’s a perfect opportunity to ask the vendor to put the money where their mouth is.

For example you can ask for guaranteed replacement of the resource in two weeks. You can consider overlap of the resources in order to perform knowledge transfer for minimum of two weeks. You can ask for periodic audits of knowledge related documentation.

An important consideration to keep in mind: some of the turnover mitigation techniques employed by the vendor do not work in your favor. The most obvious one is moving resources from project to project or client to client in order to keep the resource engaged. I would recommend consider counter measures for example if the resources are moved off your project but retained within vendor’s organization some harsher penalties / longer overlaps applied. But you do not want to push your vendor against the wall making it financially unreasonable or preventing them from doing basically a right thing.

Here is a small example of MSA language:

Vendor shall not reassign any key resource providing Services for a period of 12 months after their respective start date of providing Services without prior approval from Client, provided that Client commits to the resource ramp up outlined in Section 5 of this Agreement. Key resources shall consist of resources critical to the Statement of Work and unless otherwise agreed, will be the Project Manager, Technical Lead, Business Analyst, Architect, and Quality Assurance Lead.

Let’s now cover the technical capability of the resources. Why that could be a problem? Well, try to find good developers in Silicon Valley even today – not easy by any stretch of imagination. Your vendor faces exactly the same issues exacerbated by several factors with huge competition from multiple dimensions – multinational corps, product companies, large offshore companies, etc.

This particular issue fall’s in a category “that is a fact, it is not my problem” but if I ignore the fact it will become a problem. In any case, the quality of resources is not something I am prepared to compromise on. So what could be my mitigation techniques here?

I typically ask for direct access to resources, right to interview and approve / disapprove, etc. That is a huge issue for many vendors though, most of the vendors do not want you to handpick the resources, for obvious reasons. So, it’s likely that you would have to offset it in some way, for example ask for interviews / etc. process for named key resources and allow vendor to deal with the rest of the team. You may consider some compensation (rate, T&C). Another approach could be setting performance benchmarks and holding vendor to those.

Here is a small example of MSA language:

For Statements of Work undertaken by Vendor on a time and material basis, Vendor shall obtain Client’s approval prior to adding any resources to such Statement of Work. Client will have the option of interviewing Vendor’s resources prior to their providing Services under a Statement of Work.

Offshore Contracts Basics

In general the language you put in contracts will not change the nature of the business, will not counter the Fundamental Laws of Outsourcing, and won’t prevent things going south. Yet it is impossible to overstate the importance of a well-written contract. The goal is to develop the contract in a way that it encourages / enforces desired behaviors and provides a framework for dealing with issues, complications, and disputes. That applies to both parties – the contract has to work for you and your vendor, in that light, considering the nature of the engagement, nothing is as important when developing a contract as keeping a win-win mind.

A typical offshore contract includes two major components: a Master Service Agreement (MSA) that acts as an umbrella document covering specific terms and conditions of the engagement, and series of documents covering the specifics. Individual tasks and assignments are usually covered by documents such as Task Order, Statement of Work, Work Order, etc.

An MSA typically is negotiated once and stays in power through the life of the relationship. There are many important elements of an MSA that define the fabric of the relationship. To some degree they are vendor and even offshore agnostic. These elements fall in a “vanilla” category and typically require just basic template and a lawyer. However even these items can create a serious obstacles and require tooth and nail negotiations. Here are the main items that fall in that category:

  • Term, renewal and extension
  • Legal framework / Changes in laws and regulations
  • Security and privacy
  • Confidentiality / Audits
  • Proprietary rights / IP ownership
  • Legal responsibilities of parties
  • Indemnitification

The second group of MSA articles defines specific aspects of the relationship and should be in general agreed to prior to getting legal departments involved. One of the reasons that should be done is that there is still a long way from general to specific T&C. For example people rarely discuss the penalty for late payments before MSA is on the table. When the initial draft is presented by the vendor the number is typically 2.5% monthly which is completely ridiculous – that is ~35% on annual basis and beats some of the worst credit cards.

  • Definition of services
  • Responsibilities of parties / roles of the parties as it applies to executing the engagement
  • Payments and other financial aspects, terms and conditions
  • Initiation / Setting up ODC and other (“hidden”) fees
  • Termination

This group of the MSA articles requires very detailed analysis as it will impact Total Cost of Outsourcing in the most dramatic manner. The last article in that list, Termination, requires especial attention and a legal eye. As a buyer of offshore services you want to make sure that you can get out of the contract easily in case anything goes not the way it was planned. This is not a symmetrical clause – the vendor’s right to terminate contract should be limited to legal or financial bridge of the contract on your part.

The last group of MSA articles is not typically found in the initial draft. These are clauses that are specific to your company and nature of the engagement. Developing that list and negotiating each point is not a trivial exercise, and deserves a separate post, which I shall have shortly.

Dealing with Turnover

Turnover impact on the cost for an offshore engagement could be dramatic.  It’s fairly obvious: any change in resources on a team triggers changes in the team dynamics, new resources need to be ramped up on technology, project specific and domain knowledge, etc.

Depending on a type of the assignment new resources will display lower productivity for weeks or even months. For a regular full time employee on development task the cost of replacement is typically estimated at 3 months of fully burden salary plus recruitment fees. The cost of the replacement in offshore scenario depends dramatically on contract arrangement and vendor capabilities. Interestingly enough it could be substantially lower than in captive resources scenario. In my view outsourcing companies could turn the issue of turnover into a competitive advantage. I have not seen too many that managed to so yet.

To deal with the turnover you need to start early during vendor selection stage and do not stop working on it till the engagement is closed.

Vendor Selection. Pick the vendors that have turnover under control; do not just take their word on it, research all aspects of employment lifecycle and derive your own conclusions. Here are some of the questions you need to get the answers to:

  • What is the vendor’s employee sourcing strategy and tactics?
  • Does vendor have any advantages in local market in terms of acquiring and retaining employees vs. competition? Or same question from a different angle – what are the employee choices in local job market?
  • What employee retention mechanisms the vendor has in place?
  • What the vendor does to counter results of the turnover? In particular what are the knowledge retention mechanisms? Cross training? Etc.
  • What were actual turnover ratios for reference (especially unsolicited) accounts? How did vendor acted upon reducing the negative impact of the turnover?

Contract Negotiation. Now it’s time to ask the vendor to put their money where their mouth is. Here are a few elements you may consider for including into MSA:

  • Clear definition of the turnover ratio with a penalty for exceeding specific benchmark.
  • Key employee clauses. You need to cover definition of the key employee, specify minimum retention period for them, and identify process of replacement in case of their departure. I would consider covering two scenarios – force major (vendor can’t do much about loosing the employee) and transfers (the vendor elects to move the employee to a different engagement) with much more considerable penalties for transfers.
  • Regular team member clauses. Those would be similar to key employees with focus on the process of replacement and much softer penalties.
  • Transparency clauses. You want to know about employee departure as much ahead of time as possible, you wan to be able to get to the bottom. Maybe you want to be able to do the exit interviews. You might be interested in right to connect with team members directly, but be prepared for serious fight here unless you are working with small vendors.

Managing the Engagement. The main point is not to rely on your vendor’s adherence to the contract but take an active role in increasing retention of the team members at multiple levels. Of course that must be done in a concert or at least not in a conflict with the activities of the vendor. Most reasonable organizations do not intend on breaking the contract and in a large degree are interested in minimizing the turnover the same way you do, maybe with just a few exceptions. These exceptions come from market pressures and internal constraint, the better you understand them the more you can do to counter the issue. Here are a few reasons for these exceptions and some tips on dealing with them:

  • The concept of seniority in an offshore organization is likely to be different from what you have in-house. For example a java developer with 6 years experience would be considered very senior in China and expected to act as a tech lead on the project with 20 developers. So forcing that developer to be a junior member on a team of 5 would be an insult which is likely to lead for him to quit one way or another. You need to be cognizant of that and other similar trends and form the team which would create a favorable environment for the team members not on your terms but on their terms.
  • Same problem has a different angle: let consider a vendor’s viewpoint. As a practice manager I need to leverage my resources well. If I have a senior tech lead he is expected to run a team of 20 people. In that case I can afford to charge my clients some reasonable rate for his time as my losses would be more than offset with profits I make on junior members. As you can imagine a client’s request to form a small team with several senior members is not going to make me happy… One of the ways to deal with it is to be much more flexible on rates and find alternative / additional methods of compensation. More important if small team with very experienced team members is your preferred scenario – you need to pick vendors who are ready and interested to work in that model (and not just because they told you so!). Consider boutique consulting organization, Eastern Europe and Latin America.
  • Another factor to consider is employee engagement. Long term development projects, especially large scale maintenance ones offer different challenges over time. Initially they could be interesting for people motivated by technical complexity and vast scope, but after a while these challenges disappear replaced by mundane repetitive tasks. So it’s no surprise that some of the team members are ready to fly when you just starting to rip the benefit of their experience and knowledge. In my experience the best way to deal with it is by selecting resources with personality / mind set match for the project. There are plenty of people who a great and maintenance projects and enjoy that work as well, they might be a bit slower in uptake, but that is the bullet you need to bite.

In a large degree to reduce turnover of your offshore team you can do many of the same things you would do for your own staff, often by the vendor’s hands. Here are just a few things you can consider:

  • Compensation & Gifts. Remember a $1K bonus goes much further in India than in Indiana. A few technical books sent directly to a developer would earn disproportional value in loyalty.
  • Classic motivation factors: advancement, recognition, and achievement. Recognition is particular simple and pays off incredibly well.
  • Team building. A few things with huge impact: joined development activities like SCRUM style meetings, offshore visits, especially for local team members with specific tangible objectives such as training or k-transfer, bringing best off-shore team members on-site, etc.

Negotiating a Fair Rate

Let’s assume that you have selected a few companies for your shortlist and are getting close to the final stage of negotiations. At that point you already have the “asking” rate, which should be within reasons. Negotiating space in offshore deals is rarely above 30% and if asking rate is 100% above your expectation the vendor should not probably be on your list.

Now, how to make sure that you get the best rate and at the same time not push your vendor beyond the line where your negotiating “success” will backfire? The key is to drive for “win-win” arrangement with every prospect vendor and pick the best one. Here are a few tips on doing that:

  • First, most important, you need to set the focus of your negotiations. Your goal is not to minimize the rate but minimize the Total Cost of Outsourcing (TOC) over the terms of the engagement. TCO is an abstract concept unless looked at in retrospect, yet it could be reasonably assessed with some basic assumptions. After the assumptions are locked you can easily negotiate towards minimizing TOC.
  • Next step is arranging your arsenal of negotiation options. You do not want it “all come down to rate”, that’s just one aspect of TOC plus it’s likely to stall the negotiations. List all aspects of the contract you could to negotiate and form your position on each of them. Offshore contracts typically offer large number of areas to negotiate, e.g. financial and payment terms, work hours, overtime rates, length of engagement, access to resources, multiple operation benchmarks and guarantees, etc. Each of these items could have a massive impact on the TCO.
  • Research what is reasonable in terms of rates for your vendors. There are plenty of tools to do that. For example follow up with references the vendor should have given you (it’s amazing how much info you get if you just ask), check regional job boards to determine salary ranges, etc. Take you research data with grain of salt though, e.g. be aware of the timing of your data. For example I was involved in contract negotiation with the same vendor in 99, ’02 and just recently; the terms of the contract were somewhat similar, the rates for mid level java developer were respectfully $42, $21 and $27 an hour.
  • Negotiation is a complex skill if not art. If negotiations are not particular your cup of tea you may consider involving professionals, in particular those who have experience negotiating offshore contracts. At least go through some serious reading on the topic prior to diving into the deal making. Here are a few great books to consider: Secrets of Power Negotiating by Roger Dawson, You Can Negotiate Anything by Herb Cohen, and Getting Past No by William Ury.
  • One aspect of the rate is often gets overlooked – the rate changes overtime. The easiest approach here could be locking rate for the term of the engagement, yet it might be not feasible due to many reasons. You want to make sure that you do not get hit with huge changes and at the same time you do not want to find your vendor loosing money on your project due to for example natural changes in the cost of living. Linking rate changes to some objective index might be a path to consider, see an example below.

X.  Cost of Living Adjustment. With respect to the rates stated in each Work Order with a term longer than one year, commencing on the first anniversary of the effective date and on each anniversary thereafter during the term of each such Work Order (each, an “Anniversary”), if the Employment Cost Index, Total Compensation, Not Seasonally Adjusted, Private Industry for Professional Specialty and Technical Occupations published by the Bureau of Labor Statistics of the United States Department of Labor (the “ECI”), as published on the most recent date the ECI was published prior to the Anniversary of the current year (the “Current ECI”). is higher than the ECI published on the most recent date the ECI was published prior to (i) the effective date of the Task Order with respect to the first Anniversary; or (ii) the Anniversary of the previous year with respect to all subsequent Anniversaries (the “Prior ECI”), then, effective as of such Anniversary, the then-current rates for such charges shall be increased by an amount calculated by multiplying then-current rates by a fraction, the numerator of which is the Current ECI and the denominator of which is the Prior ECI, minus 1. For example, on the first Anniversary of a Task Order, if the Current ECI is higher than the Prior ECI, the increase to the then-current rates under this Section 5 would be calculated as follows:

Increase to then-current rates = the then-current rate on the first Anniversary X ((Current ECI / Prior ECI) – 1).

If the ECI ceases to be published, then Consultant and Client will agree on and substitute another comparable measure published by the same or another reputable source.

It’s Not Over, Till It’s Over

I was fairly certain that an offshore development company with majority of their staff in St. Petersburg, Russia was the best choice for a large scale initiative for my company. The decision came after complex vendor selection process which included on-site visits, marathon interviews, long and pricy MSA negotiations, etc.

I hang up the phone after final discussion with the CEO and smiled. I liked the team in Russia, some of the guys I met there were at par with my best developers in-house, I was happy with the location as it was offering a cure for my nostalgia, and I was proud to be able to deal with the biggest obstacle I faced on the day one of the negotiations – substantially higher rates of developers in Russia comparing to those in India.

“Why work with India if you can find more expensive developers somewhere else?” is not exactly the question you want to be discussing with BoD or your executives. My convoluted negotiation scheme has paid off. I was quite happy with what I was able to squeeze out of the vendor. There were only a few formalities to take care off and I would move forward with the project.

I have t ell you – having had set my eyes on the Russian vendor I had to stick my neck out a great deal. There were plenty of concerns with outsourcing in my organization to begin with, moving it to Russia was a challenge of a much high caliber. “If the creator had a purpose in equipping us with a neck, he surely meant us to stick it out.” [Arthur Koestler] Those are the words to live by. I was selling idea of using the Russian team as there was no tomorrow. My efforts were paying off on that side as well – I had full support of my executive team and was ready to move forward with the contract and a very hefty budget.

Next day I was on my way to LA, long weekend offered a perfect break from the grueling selection process and contract negotiations. I was in a wonderful mood and almost all the way through the 10 hour trip when I got a call from my vendor’s CEO. For some reason he decided to speak in English: “Nick, my board of directors has reviewed all the details of the contract and after much discussions had made the decision to withdraw our proposal and exit the negotiations.” I said something borderline polite, hang up the phone, and issued a very loud, long and very politically incorrect tirade…

Funny enough things worked out to the best, the vendor that was awarded the contract instead of the Russian team in many respects offered a better match, stronger skills and less time difference… Plus, I added a few more notes to my bag of tricks, tips and traps:

  • Never come to the finish line of selection process with a single vendor in mind. Make sure that your short list has at least two, better three capable companies.
  • Do not rely on your intuition (bias, preferences, etc.) when selecting the vendor; let the facts, spreadsheets and team consensus drive the decision.
  • Do not oversell your team, company, and execs on the benefits of outsourcing and especially on any specific vendor. Remember no matter how low you set the expectations your offshore vendor will easily fail them.
  • Do not get lost in complex gambits and convoluted negotiation schemas.
  • And the most important, do not try to pay the vendor less than they can generally get in the open market.

The last bullet deserves special attention as a fair rate is a moving target and depends on many aspects and circumstances. I guess that will be my next post.

ODC Hidden Fees

The conference call I had with my ex-partner in Noida, India was quite unusual and it’s worth mentioning. Two PMs, AM and I were going in circles for 30 mins in attempt to solve a $10,000 conundrum. About a year ago we purchased 3 servers for our team in India, at roughly $3K a piece. The relationship came to an abrupt end due to major reshuffle of the road map on our side a few months ago.  Naturally we wanted to get our servers back in a form of iron or cash.  That turned out to be unreasonably costly.

As it turned the servers were in some special industrial zone and to get them out of the zone we would have to pay a de-bonding fee to India customs.  The fee at this point would be about 75% of the price of the new server, supposedly if I would wait for about 5-6 years the fee would be reduced to almost zero.   But today to get the servers to San Francisco between shipping and customs I would have to pay the price of new server for one year old box I already “own”.  I could not even donate the boxes to any of my friends in Noida – they would have to pay de-bonding fee to take the servers off the vendor’s premises.  Talk about hidden fees and small print!

That would be my latest lesson learned on ODC hidden fees.  There are a plenty of others you need to be on look out for when negotiating a contract with an offshore vendor.   Here are just a few I came across over the years:

  • Telecommunication, a variety of expenses associated with connectivity and other telecom needs
  • Setup costs, including workstations and other expenses
  • Administration fees, a bizarre combination of fees including janitorial, rent, etc.
  • Recruiting fees in a wide variety of contracting clauses
  • SW Licenses, sometimes for just “non-standard” components often for all
  • Termination fees, a variety of clauses preventing from or penalizing you for canceling agreement
  • Variety of financial fees, such as late payment fees with percentage higher that you would see from credit card vendors

What is important here is of course not the fairness of the fees.   You need to inspect every inch of the contract, every caveat and clause to avoid surprises and control your total cost of outsourcing.  Hopefully that will save you from serious blunders and oversights like mine.

And just FYI, thanks to Chris Balmain, here is a link for de-bonding procedures http://india.ewasteguide.info/files/Debonding_Summary-Report_2007.pdf