3.10. Contract Management

3.10.1. Introduction

The terms “contract management” and “contract administration” are often used synonymously. However, “contract management” is commonly understood as a broader and more strategic concept that covers the whole procurement cycle including planning, formation, execution, administration and close out of a contract and goes beyond the day to day “administrative” activities in the procurement cycle. Because it is difficult to draw the line between the two terms and because the majority of the UN organizations commonly use “contract management” when describing the contract administration phase, “contract management” will be used in this Unit.

The purpose of contract management is to ensure that all parties to the contract fully meet their respective obligations as efficiently and effectively as possible, delivering the business and operational outputs required from the contract and providing value for money. It also protects the rights of the parties and ensures required performance when circumstances change.

Contract management is similar to project management. Each contract is a mini-project. It has a unique goal, consumes resources, has a beginning and end date, and requires coordination and planning of relevant activities, as well as documentation in a contract file throughout the process.

Contract management includes monitoring and documenting performance. Depending on the organization and goods or services procured, daily/regular monitoring of the contract may be primarily the responsibility of the requisitioner.

In all situations, the procurement officer is responsible for following up and ensuring that the actions of the supplier and the UN organization are in line with the contractual responsibilities, that the contract is amended to reflect agreed changes in circumstances, and that any claim or dispute is resolved amicably according to the terms of the contract.

Payment for the goods or services should be handled independently from the procurement function, while contract close out again is the responsibility of the procurement officer.

The stages of contract management are intended to ensure that the parties work together to achieve the objectives of the contract. Contract management is based on the idea that the contract is an agreement, a partnership with rights and obligations that must be met by both sides to achieve the goal. Contract management is aimed not at finding fault, but rather at identifying problems and finding solutions together with all contracting parties involved.

3.10.2. Process

The flowchart below shows each of the stages in the contract management process.

3.10.3. Enabling contract management

In this phase the procurement officer ensures that there is a shared understanding, distribution of responsibilities and systems and procedures in place to monitor and control contract performance and effectively deal with potential changes and disputes.

The supplier should be considered a member of the project team, with all members striving for success. Upon signature of the contract, several steps should be taken to ensure that roles, responsibilities and obligations are clearly allocated among the parties and proper systems and procedures are put in place to monitor performance and keep efforts well focused:

Contract file and documentation

The contract file should be opened by the procurement officer, and the contract should be carefully analysed, taking note of the rights and obligations of each party. Any issues requiring clarification or change of the contract should be fully documented in this file. (The requisitioner will normally have a separate file, with copy of the contract, as part of the project management files.)

Although practice may vary among organizations, the following documents normally are part of the contract file:

  • original of contract and all amendments

  • all related communication with the supplier (electronic, internal and external correspondence)

  • copy of the winning offer

  • award documents

  • minutes of meetings

  • notes of phone conversations

  • reports

  • pictures, video films

  • proof of receipt of goods

  • proof of payment

  • supplier assessment report

  • acceptance report from requisitioner/client.

Other related documents preceding the contract finalization, such as Requisition, solicitation document, offers received, evaluation report, etc. are usually part of other related files.

It is important to carefully document contract performance for the following reasons:

  • It constitutes proof of performance.

  • It constitutes evidence in the event of disputes.

  • Its content forms the institutional memory.

  • It is used for audit purposes.

Contract analysis

As soon as possible, the responsible UN staff member (programme manager, requisitioner, or procurement officer) should analyse the terms and conditions of the prospective contract and develop a contract work breakdown structure that reflects both the technical and administrative aspects of contract performance. The requisitioner and the procurement officer should reach agreement on intermediate performance goals based on contract performance obligations. Intermediate goals will enable the UN organization to measure progress, detect significant performance variances, take corrective action, and follow up.

Pre-performance conference

Before performance begins on large or complex contracts, the procurement officer and the requisitioner should meet with the supplier’s team to discuss their understanding and joint administration of the contract.

The following is considered good practice:

  • the meeting should be formal

  • an agenda should be distributed in advance, minutes should be taken and agreed by the parties.

  • each party should appoint a person who will be the organization’s official voice during contract performance.

The following topics should be covered by the parties:

  • Review the contract terms and conditions and other key elements and explain who will do what.

  • Update the project/programme plan with the involvement of both parties, to reflect the actual date of effectiveness as well as milestones/deliverables of the contract and any changes which may have occurred since it was planned.

  • Review the performance assessment plan with the supplier, so that both parties know the basis upon which performance will be established. These should be understood as milestones for joint monitoring and not as contractual obligations.

  • Discuss how and when to measure and report actual performance. The techniques, timing, and frequency of measurement and reporting should reflect the nature and criticality of the work. A reasonable balance must be struck between no measurement/reporting of any kind and excessive reporting.

  • Clarify any remaining ambiguities and discuss procedures for managing change and resolving differences.

  • Clarify the communication plan.

For simple goods or equipment purchase orders, a telephone or email contact is often sufficient to launch activities, supported by regular expediting and monitoring.

Effective communication

Successful contract management is based on an open flow of communication and willingness to take actions necessary for correction and improvement, and is facilitated by:

  • Attitude of teamwork, seeking to get the best results from joint efforts, willingness to discuss problems without immediate recourse to recriminations and to make the immediate adjustments that may be necessary to correct problems detected through routine inspection.

  • Well organized oral and written reporting system, which highlights progress and problems and measures them against expected performance and results.

  • Contract performance and progress review meetings at appropriate intervals. For complex works and services contracts, such meetings could be as frequent as every two weeks or as infrequent as every two months. For goods procurement, it may be sufficient to have an email or telephone follow-up every few weeks.

For procurement of goods, contract monitoring and control is largely covered by expediting, pre-shipment inspection and final receipt and acceptance.

The policy of compliance with contract terms and conditions requires that organizations maintain effective communication about, and control over, contract performance. Each party to the contract should establish communication procedures to ensure that people within their organization know what they must do, and each party should establish controls to ensure that they do it.

It is equally important that the parties to the contract communicate with each other, as often as may be necessary. A contract is a “meeting of the minds” made at a prior point in time. Like all human relationships, contracts are dynamic; the original “meeting of the minds” may have been inaccurate or frustrated by events.

As performance proceeds and events unfold, the parties will find that they may have to modify their original expectations and plans to adjust to real events. As they do so, they will have to modify the terms and conditions of their contract so that it reflects the current status of their agreement. This is an inevitable part of contracting, because no one can predict the future with perfect accuracy. However, it is important that the parties do this consciously and openly, and with an attitude of teamwork, so that they remain in agreement about what they are doing. If they do not communicate, they could end up mitigating a dispute over what their obligations really are.

3.10.4. Contract performance monitoring and control

Once the contract has been awarded, the responsible procurement officer, or the requisitioner, monitors performance, collects information, and measures actual contract achievement. This is essential for effective control. The resources devoted to these tasks, and the techniques used to perform them, will depend on the nature of the contract work, the size and complexity of the contract, and the resources available.

For small, simple, non-critical contracts, an occasional telephone call may be all that is needed to satisfy the responsible UN staff member that everything is proceeding according to plan. However, for large, complex contracts, the responsible UN staff member may require extensive reports, regular progress meetings, formal testing, and technical reviews and audits.

In performance based contracts, performance indicators developed in the contract are used. In some cases, the proposed supplier’s quality assurance plan may be used as a basis for monitoring the supplier’s performance.

Observations are made in order to collect information related to those aspects of performance that, when measured, will describe the progress of the work. The reason for observing, collecting information, and measuring progress is to have a basis for comparing actual achievement with planned achievement in order to exert control. Each party must direct its attention internally to ensure that it is fulfilling its own obligations, and externally to ensure that the other party is fulfilling its obligations.

Control points

Observing and collecting information should be directed at four general control points.  These include:

  • cost control

  • schedule control

  • compliance with specifications, terms of reference, statement of work (quality assurance and control)

  • compliance with terms and conditions, paperwork requirements, and administrative aspects of the performance.

Monitoring methods

There are two different monitoring methods: direct observation and indirect observation.

Direct observation

Direct observation means personal, physical observation. The responsible UN staff member, or a field representative, is physically present at the work site during its performance to see how it is progressing. This approach is most practical when the work is physical in nature and performed at a limited number of sites.

Construction projects are examples of work readily subject to direct observation. The inspector goes to the site and visually inspects the work, comparing observations to the construction specifications and drawings to the schedule to determine the progress of the job.

Direct observation by the responsible UN staff member or field representative is of limited use, however, when the work is largely intellectual in nature, or when it is too complex for physical inspection alone to provide enough information to measure progress. In these cases, direct observation should be supplemented or replaced by indirect observation.

Indirect observation

Indirect observation refers to testing, progress reports from many observers, technical reviews, performance indicators and audits. Indirect observation is appropriate whenever direct observation would provide insufficient or ambiguous information. For example, projects involving an intellectual effort like infrastructure analysis where personal observations at the offices where the work is performed are unlikely to reveal whether the work is ahead of schedule, on schedule, or behind schedule.

Receipt, inspection and acceptance procedures

Inspection involves examining or testing a product or service to ensure that it conforms to contract requirements. Where quantities of goods are involved, inspection also means verifying that the correct number of items has been delivered. Some organizations may have LTAs or one-off contracts with inspection agents, while others may have in-house experts who undertake plant visits and inspections. Generally, there are the following types of inspection methods:

  • sensory and dimensional checks

  • physical performance checks

  • destructive tests.

Sensory and dimensional checks

Sensory and dimensional checks are examinations by an inspector using his or her eyes, ears, and other senses. The inspector exercises a good amount of personal judgment. For a commercially available automatic pencil sharpener, for example, this method reveals surface defects, missing pieces, noisy operation, and parts out of alignment. For custodial services, for example, visual inspection detects surfaces that are not clean.

The UN organizations typically use sensory and dimensional checks to perform inspections. When using this method, UN staff at the receiving point (that is, the UN office or field mission using the item) should check the following:

  • Make a visual examination to verify that the proper type and kind of product has been delivered, that is, that the product or service conforms to the specifications outlined in the order or contract.

  • Conduct a physical count to ensure that the correct quantity of product has been delivered by comparing the quantity received with the quantity ordered. Variations in quantities authorized by the order or contract may be accepted. Quantities accepted must be documented; payment is based on quantities accepted.

  • Check for signs of damage, such as dents and tears. Any damage should be documented.

  • Perform an operability check to ensure that the product performs or operates properly, if applicable.

  • Check the preservation of the product to ensure that it has not spoiled, rusted, or deteriorated, if applicable.

  • If applicable, check packaging and labelling to ensure that they comply with the contract’s requirements.

  • Check packing to ensure that it is adequate, if applicable.

  • Check marking to ensure that it properly identifies packages, if applicable.

    Any items that do not conform to appropriate standards should not be accepted. A receipt and inspection report should be submitted, noting any non-conforming item.

Physical or performance tests

Physical or performance tests provide actual performance data that are compared with required performance or physical characteristics or a range of what is considered acceptable according to the contract. Requiring that a motor runs or an operating system performs at a certain level for a specific period of time is an example of a performance test. Testing materials for their chemical composition or density against parameters in the specification are examples of physical tests. On a bus service contract, waiting at a particular bus stop to see whether the bus arrives on time is a performance test to check compliance with the required schedule. Performance tests for labour-intensive services are often done as a random sample.

Destructive tests

Destructive tests require that end products meet certain reliability standards or withstand a specific level of stress. For example, heating a product until it burns tests the fireproof characteristics of an end product. Scratching through newly applied coats of paint shows the number of coats applied by a painting supplier.

Acceptance or rejection standards

Acceptance or rejection of products or services must be based on the standards identified in the contract or purchase order. Generally, the UN organizations rely on two types of standards:

  • Strict compliance standards: Requirements based on specific UN technical descriptions.

  • Subjective standards: Requirements based on a broader, more judgmental, criterion as applied by the inspector. Examples of subjective standards might be “comfortable fit” or “easy operation.

It is not unusual to have both types of standards apply to different aspects of one purchase. In such cases, both strict compliance standards and subjective standards must be enforced. But if both standards apply to a single aspect of the purchase, they typically are inconsistent with each other and, therefore, unenforceable.

Both types of standards can be applied to different aspects of service requirements as well. For example, a contract for grass-cutting services may state that the grass will be cut once a week – which is a strict compliance standard – or that the grass must always be neat and trimmed – which is a subjective standard. The basis for acceptance or rejection must be in accordance with the contract’s stated requirements as shown in the table below.

Requirement type

Refers to…

End-item versus level-of-effort requirement

Contract terms with may require delivery of end items, which may include finished services, or may require a stated level of effort over a specified period of time.

End-item requirement

A measurable product of work, such as a management analysis report to be delivered in camera-ready form or the manufacturing of a product as required by technical descriptions. This type of requirement states a specific time for delivery or completion. Rejection, or other remedies, may be appropriate if the end item is deficient or delivered late.

Level-of-effort requirement

An amount of work, a level of effort, applied toward a specific objective or performed during a specified period of time. The level of effort itself is the deliverable. A supplier’s obligation to provide the level of effort ends when the contract expires, even if the objective is not met. The only basis of rejection or application of remedies is the manner in which the effort was applied during contract performance.

Inspection and acceptance or rejection of products and services, determine whether the UN organization should make payment to the supplier.

Types of reports

Receipt and inspection documentation

Inspections may be interim or final and receipt may be in full or partial.

organizations usually use standard forms/reports to acknowledge that the inspection has been performed and to record whether products/services have been accepted or rejected.  UN organizations now increasingly use the organization’s ERP procurement software to record delivery and related aspects of contract completion electronically.

Progress meetings

Progress meetings can simply be oral progress reports. They provide some advantages and disadvantages over written reports. An advantage is that the listeners can ask questions about the information, analyses, and conclusions reported and can have discussions with the reporter. A disadvantage is that the listeners may not have time during the meeting to consider the information and make their own analyses before the meeting ends.

Written reports

Written reports rarely provide “real time” information. They do not tell the reader how things are now; they provide the reader only a picture of some point of time in the past. How old the information is depends on the nature and frequency of the report and on the reporter’s capabilities. A cost/schedule performance report that is submitted on 1 June, and that depends on accounting information, may actually describe cost/schedule status as of 30 April or earlier, depending on the capabilities of the seller’s accounting system.

Report conclusions about project status are valid only if the information on which they are based is accurate and the analyst is competent, realistic, and honest.

In deciding to rely wholly or in part on reports (including meetings), the responsible UN staff member also needs to decide what information each report must contain. Some of the issues that should be considered according to the contract reporting guidelines of the organization are:

  • What aspect(s) of performance should the report address?

  • What information should the report include: conclusions about performance, analyses, raw information, or some combination of these?

  • How frequently must the report be submitted, and at what points in time?

  • What is the cut-off point (“as of” date) for information to be included in the report?

  • In what format should the report be submitted?

  • To whom should the report be submitted, and to whom should copies be sent?

Variance analysis

It is not enough to observe and collect information about performance; that information should be analysed to determine whether or not performance is satisfactory. The analyst compares actual performance to performance goals to determine whether there are variances. The responsible UN staff member who discovers a variance between actual and expected performance should determine several things: Is it significant? What was its cause? Was it a one-time failure, or is it a continuing problem? What type of corrective action would be most effective?

Variance analysis should be timely, especially when the information is obtained through reports. That information is already old by the time it has been received. Delays in analysing its significance may allow poor performance to deteriorate further, perhaps beyond hope of effective corrective action. It is especially important to act promptly during the early phases of contract performance, when corrective action is likely to have the greatest effect. In case of negative contract performance a review of information in the contract file frequently shows that there were warning signs – reports, meeting minutes, letters, memos – that were unnoticed or ignored. When the responsibility for monitoring performance is delegated, the responsible UN staff member must take steps to ensure that those persons promptly analyse the information, report their findings, and take corrective action.

Taking corrective action

When the requisitioner or the procurement officer discovers significant variance between actual and expected performance, they should take corrective action if possible. They should identify the cause of the problem and determine a solution that will not only eliminate it as a source of future difficulty, but correct the effect it has already had, if possible. If the effect cannot be corrected, then the parties may need to negotiate a change to the contract, with compensation to the injured party, if appropriate.

Follow up

Once corrective action has been taken or is under way, the procurement officer and the requisitioner should determine whether it has had or is having the desired effect. If not, then further action may be needed.

Throughout this process of corrective action and follow-up, all the parties must keep each other informed. Effective communication between the parties is essential to avoid misunderstandings and disputes when things are not proceeding according to plan. The party taking corrective action must make every effort to let the other party know that it is aware of the problem and is addressing it seriously. Sometimes this is more important than the corrective action itself.

3.10.5. Change management

Change management is the process of both avoiding unwanted changes and incorporating necessary changes into the contract.

Effectively controlling changes entails establishing formal procedures for changing the contract and limiting the number of people who are entitled to make changes.

It is natural for staff in one contract party to work directly with their counterparts in the other contract party’s organization, people who speak their language and understand their policies and customs. These colleagues often bypass formal channels of communication, and such relationships can lead to informal, undocumented agreements that depart from contract terms and conditions. Such informal agreements often lead to situations of unauthorized commitment or forbearance caused by apparent authority communicated involuntarily by the requisitioner. It is important that all parties keep in mind that the written contract is the agreement, until it has been formally modified – such modification is not simply a formality.

“Constructive change” used to describe a contract change, derives from the verb “to construe” and not from the verb “to construct.” So, a constructive change is a situation that can be construed as having the effect of a bona fide contract change. A constructive change occurs when the procurement officer, or other duly authorized official, changes the contract without applying proper legal and regulatory procedures. A constructive change can result from either a specific action or a failure to act. Constructive changes need not have a cost impact; unauthorized commitments always do.

The possibility of a constructive change places the UN organization in a poor negotiating position when renegotiating price or cost or other contract term or condition. Discussion with the supplier of constructive changes should be avoided as constructive changes destroy any possibility of pre-pricing and put the UN organization in a poor negotiating position. Unless changes are documented in a contract modification, a misunderstanding between UN staff and supplier personnel is likely to result.

Financial changes

Financial changes include in particular:

  • Cost overruns, in which the cost of carrying out an agreed activity is greater than the agreed amount. The UN organization seeks to avoid this situation, and selects outputs and payment methods to make it less likely to occur.

  • Cost growth, when activities not included in the original contract are added, they usually bring accompanying costs. Careful planning and choice of language should reduce the frequency of this situation, but it is still likely to occur in complex construction and services contracts.

Cost overruns versus cost growth

When accepting a contract, a supplier intends to make it profitable by ensuring it can control its costs. Failure to do so will undermine the contract’s profitability. The supplier will manage its business risk in a manner that will eliminate wherever possible potential for cost overruns. UN organizations also seek to structure contracts and administration to avoid responsibility for cost overruns.

Cost overrun

Examples of sources of potential cost overruns are:

  • currency rate fluctuation

  • underestimation of level of effort

  • underestimation of costs of material

  • increase in cost of materials or labour

  • undocumented cost growth.

Cost growth

Cost growth is defined as a change in the scope of work or new terms and conditions that have been requested by the buyer. The supplier may accept cost growth provided the contract change is documented and that the contract is amended accordingly.

Delays and variations

Handling claims of delays and variations involves dealing with circumstances where a supplier makes a claim for additional unforeseen work or costs, or where the UN organization has varied their requirements from the supplier. Typical delays and variations which should be handled include:

  • delays (excusable, non-excusable, shared/concurrent)

  • minor variations to scope of work or execution conditions.

The three most significant types of contract delays can be grouped as follows:

  • excusable delays

  • non-excusable delays

  • shared or concurrent delays.

Excusable delays

Excusable delays are delays beyond the control of the supplier and without any fault or negligence on the supplier’s part. These include delays caused or authorized by the UN organization and delays caused by acts of God or other events beyond the supplier’s control, such as fire, flood, acts of war, and so on. This is the only type of delay for which extending the period of performance without obtaining consideration from the supplier is appropriate. Some excusable delays do entitle the supplier to monetary compensation in the form of an increase to a fixed-price/lump-sum contract. This could be an increase in the ceiling price of a time-and-materials contract. In addition, a time adjustment may be appropriate if the UN organization caused or could have prevented the delay.

Non-excusable delays

Non-excusable delays are delays that are not authorized by the UN organization and are, in some way, the supplier’s fault. Even delays that may be excusable are deemed non-excusable if the supplier could have controlled the effects of the delay in some way and failed to do so.

Remedies

When the contract is not being performed properly, there are certain remedies that may be applied by the procurement officer. These include:

  • invoking contract remedies

  • processing/holding payments, as per contract

  • contract termination (for default or convenience).

It is also possible that the situation requires dispute resolution (see below). Any of these actions must be approved by the appropriate authority representing each of the parties.

Good practice

Good practice for choosing the appropriate remedy is to:

  • identify the non-conformance

  • consider the cause (negligence from supplier or the UN organization, force majeure, etc.)

  • consider the contract/type of requirement (goods, services or works)

  • consider the context (e.g. sole source, competition, emergency)

  • consider the beneficiary/end-user requirements

  • apply principle of proportionality.

When considering any contract remedy, seeking feedback from the supplier is prudent. As a practical business matter, the supplier should be given an opportunity to provide evidence against pursuing the remedy. That evidence might point to an excusable delay or impossibility of performance. Such evidence can lead to a remedy that is fair and just for both the UN organization and the supplier.

When performance problems are the result of supplier deficiencies, the legal terms and conditions of the contract provide remedies. Such deficiencies may be related to late delivery or to other variances from contract requirements. In case of late / delayed delivery an example would be to accept the late / delayed delivery and to invoke a Liquidated Damages Clause.

A typical clause in service contracts would be, “payment upon completion of certain tasks”. Progress payments would only be made once the task has been completed by the supplier and accepted and approved by the UN organization. In case of performance delays (time or quality) the UN organization could withhold payment until the performance failure is cured.

Termination is the most serious remedy available to a UN organization. It is the exercise of the UN organization’s right to completely or partially discontinue contract performance.

3.10.6. Dispute management and resolution

The inherent shortcomings of language as a medium of communication, the organizational nature of the contracting process, and the dynamic nature of contract relationships all contribute to the potential for disagreements between the parties. In fact, disagreements, like changes, are virtually inevitable. They are to be expected by all involved and are considered a normal aspect of contract management. The larger and more complex the project, the greater is the potential for misunderstandings and disagreement.

Contract management planning should include agreement on the procedure to follow to resolve disagreement between parties regarding responsibilities and interpretation of the contract.

Differences of opinion will arise among qualified professionals in the course of execution. Claims/requests for changes are part of normal contract execution, and the procedure to review and escalate them when necessary should be established from the beginning. There should be an agreed procedure for escalating the concern to a higher level of authority. Nonetheless, the contract should indicate which party has responsibility for a given decision, and the other party should respect that responsibility.

The parties must not allow disagreements and disputes to prevent the execution of the contract. They must commit themselves to the amicable resolution of the inevitable disputes that will arise between them. Contract claims and disputes cannot be avoided entirely, but they can be resolved effectively, fairly, and without rancour and litigation. Experienced parties to a contract will anticipate claims and disputes and recognise that they are not necessarily indicative of incompetence or ill-will, but merely reflect the fact that human foresight, planning, and performance are not perfect. Since it is difficult to avoid the injection of personalities into disputes, disputes should be resolved promptly, before they fester and infect the entire contractual relationship.

Many contractual disagreements stem from ambiguities in the language of contracts. For this purpose, the procurement officer should follow commonly accepted rules developed by judges and arbitrators to resolve ambiguities in contract language. These include:

Basic rules

Some basic rules for resolving ambiguous contract language are:

  • Respect established order of precedence of documents.

  • Apply dictionary definitions to everyday words and a law dictionary for legal terms.

  • Apply standard trade or technical definitions to technical words, unless the context or usage indicates a different meaning.

  • Define words in accordance with the contract definition.

  • Presume that the same word used in different places means the same thing.

  • Do not interpret or define contract language in such a way as to render it meaningless or to render the rights and obligations of one party unrealistic.

  • Interpret the contract as a whole and, wherever possible, consistently.

  • Where the public interest is affected, apply an interpretation that favours the public.

  • When conflict occurs between two sections of the contract and no directions to the contrary exist, assume that:

    • hand-written text takes precedence over typed text

    • typed text takes precedence over pre-printed  text on a standard form

    • specific clauses take precedence over general clauses.

Additional rules

For purposes of resolving ambiguous language, the basic rules apply first. When the basic rules fail to provide an answer, the following additional rules apply:

  • The intent of the parties. If the words themselves do not resolve the ambiguity, the procurement officer should find evidence as to the intent of both parties when they entered into the contract. For example, evidence might be found in the minutes of the pre-proposal conference. If resolution is not evident, consider circumstantial evidence.

  • The circumstances. If evidence cannot be found of the intent of the parties, examine the surrounding circumstances. Arbitration proceedings may hold a contracting party to interpretations that it held, or at least did not challenge, prior to the dispute. Inconsistencies with past interpretations by either the UN organization or the supplier are examined, e.g., a UN organization’s interpretation of language in the SOW at a kick off meeting with the supplier after award will prevail over a later, contradictory, UN organization opinion. Similarly, when the UN organization can show that the supplier originally calculated certain work as required by the contract and is now trying to claim that the work is extra, the work will be considered as part of the basic contract and not additional work. If resolution is not evident, consider risk allocation principles.

  • Ambiguous language in a contract is interpreted against the party who drafted it. For example, an ambiguity in the solicitation’s SOW, incorporated into the contract, would be interpreted against the UN organization. Likewise, an ambiguity in the supplier’s proposed technical approach, incorporated into the contract, would be interpreted against the supplier.

  • If the ambiguity is obvious, and the non-drafting party does not request clarification before contract award, then that party would be viewed as having the last opportunity to correct the ambiguity. In which case, the interpretation is against that non-drafting party.

Keys to effective dispute resolution

Before escalating a dispute, consider using the following keys to effective dispute resolution:

  • recognising that contract documents are not perfect

  • keeping larger objectives in mind

  • focusing on the facts

  • depersonalising the issues

  • being willing to make reasonable compromises.

Mediation

Mediation involves the intervention of an impartial third party to solve a contract dispute. Although quicker and cheaper than formal arbitration, the UN organization does not usually resort to a mediator to solve its contractual disputes.

Escalation process

Contractual disagreements and disputes can be solved using the following escalation process.

Stage

Description

1

End user and/or requisitioner discuss an amicable solution and implemented it promptly.

In this stage, the requisitioner and/or end-user are advised to carefully update the contract file stating exactly what was discussed and how the dispute was resolved.

2

Procurement officer reviews the situation and enforces the contractual terms.

3

Arbitration.

Note: At each stage in the  escalation process, the procurement officer should contact the organization’s legal advisor for guidance and approval.

Arbitration

Arbitration is the last recourse. Arbitration, like court litigation, is time-consuming and costly. In arbitration, parties agree to submit their dispute to a panel of persons who will apply the same laws that would have been applied by regular courts. However, the arbitrators can use simplified procedures, conduct the arbitration in the language of choice of the parties, and need not be judges or even lawyers.

No one can ever be entirely sure of its result. It rarely results in a truly satisfactory resolution of a dispute, and it sours commercial relationships. For these reasons, it is to be avoided, if possible. One of the goals of the responsible UN staff members should be to resolve disputes without arbitration whenever possible.

The arbitration process is more formal than ordinary negotiations between the parties (who may be represented by attorneys), but it is less formal than court proceedings. The standard arbitration clause of UN contracts recognises that efforts will be made to settle disputes through negotiation, including mediation or conciliation, which sometimes can be considered as a less formal stage before formal arbitration

The United Nations Commission on International Trade Laws (UNCITRAL) has developed an internationally accepted arbitration process which is also favoured by the UN organizations.  The process can be described as a set of generally accepted principles for international arbitration. Many national and international arbitration institutions have declared themselves willing to act as appointing authorities under the UNCITRAL arbitration rules. The cost of arbitration is shared evenly between each party to the dispute. The location of the arbitration panel is a country that can enforce the decision of the arbitration panel.

Each party to the dispute will appoint an arbitrator and the two chosen arbitrators will then select a third panel member. The parties in dispute will then prepare their case and present it to the arbitration panel. After careful review of all facts the arbitration panel makes a decision.

For a UN organization, the decision by the arbitration panel is binding.

3.10.7. Financial management / payment

Among the rights of the supplier are the right to be paid in a timely matter for efforts completed, according to the terms of the contract. Among the obligations of the UN organization are to make payment to the supplier on a timely basis and not cause undue cost to the supplier by unreasonable management of that financial obligation. While the responsibility for management of financial aspects of the contract varies among organizations, it includes:

  • Process payments due according to the contract and upon certification of requisitioner if required in the contract.

  • Review financial implications of contract changes, in terms of original costs/outputs and available budget.

  • Liquidate financial securities – release of bid bonds, performance bonds, advance payment bonds once the reason for requesting them has become moot.

A payment made to a supplier may be one of the following five types:

  • advance

  • partial

  • progress

  • final

  • holdback / retention (withholding payment).

Advance payment

An advance payment is a sum of money paid to the supplier upon signature of the contract, in anticipation of identified early expenses. Usually the UN organizations do not undertake advance payments. However, sometimes advance payments may be necessary for such things as rent, tuition, insurance premiums, and expenses for work performed in particular countries. An advance payment needs to be justified and requires special approval before the procurement officer can include it in a contract and if it is agreed to, all reasons therefore need to be documented. Above certain thresholds, suppliers receiving advance payments must provide guarantees, e.g. bank guarantees.

Partial payment

A partial payment is based on the acceptance of a particular product or service. To process a partial payment, a document must be on file that confirms the UN’s acceptance. This confirmation usually is in the form of an invoice or delivery ticket detailing the goods or services and signed by a UN staff member authorized to accept the product or service.

Progress payment

A progress payment, also referred to as an instalment payment, is a form of contract financing made before final work or deliverables are accepted. The UN organization uses this form of payment for long-term service work that involves an end item, such as a report. If progress payments are authorized, they should normally be tied to a milestone in contract performance, such as the delivery and acceptance of a draft report for a UN organization’s approval or delivery of an outline of initial findings for review by the UN organization. Service work for which the service itself is the deliverable (for example, courier service, cleaning services, and so on) would not need progress payments but would use partial payments for services rendered during the billing period.

Final payment

A final payment is a payment made in acknowledgement / approval of the completion of all contract performance. The payment office may make payment based on the supplier’s invoice and its receipt of a receiving report or delivery docket from another UN office. For on-site services at their own office, requisitioners may play a more active role.

Holdback

Holdback payments are used in works and complex consulting assignments to ensure completion of the contract and in some construction contracts to ensure that the general supplier has paid its subcontractors. The holdback payments are retained by the UN organization until the supplier has provided proof it has discharged itself of all its obligations under the contract. This contract provision allows the UN organization to withhold a portion of payment, usually 10 to 15% of each invoice sent by the supplier.

3.10.8. Contract completion and close out

Contract close out activities are generally fairly straightforward, especially for small dollar value contracts and purchase orders. However, in complex and high dollar value contracts involving progress payments and/or securities, the procurement officer ensures that the contract file is properly closed out. Each of the required activities to complete and close out a contract are described below.

The close out process ensures that all contractual obligations have been met, and that residual obligations – such as warranties, guarantees and after-sales service and support – are clearly defined in terms of responsibility, liability, procedures and timeframes. Contract close-out occurs once all contractual obligations have been fulfilled by the supplier. It includes the following key steps:

Step

Action

1

Review and confirm appropriate action taken according to contract close-out checklists.

2

Prepare final contract performance report (jointly by requisitioner and procurement officer), including lessons learned.

Depending on the organization, this report may be purely internal or may be shared with the supplier for their knowledge and comment.

3

Prepare supplier assessment form and forward for appropriate action.

4

Issue final acceptance on the basis of the requisitioner’s report.

5

Make final financial settlements.

6

Liquidate/return bonds and/or securities.

7

Record any residual obligations (warranties, etc.) and advise requisitioner of procedures.

8

Close out contract file.

UN organization supplied equipment and material

Prior to closing a contract, assets provided to the supplier by the UN organization during the contract must be returned to the UN organization. A report confirming receipt of this material and equipment should be prpared and placed on the contract file.

Unused furnished material provided by the UN organization must also be returned by the supplier. A report is prepared by the supplier detailing the amount of material consumed during contract execution and the quantity and quality of the material returned to the UN organization. A copy of the report should be placed on the contract file.

Warranty performance

Warranties must be spelled out in the specific terms and conditions of the contract or in the UN organization’s standard contract terms and conditions. Warranties offer buyers remedies when defects are discovered after products and services have been accepted. The administration of warranties is primarily the responsibility of the requisitioners or end-users. Because end-users often are the first to identify defects in products that are covered under warranty, it is essential that they are familiar with any required procedures.

Commercial warranties provided by manufacturers and services contain strict notification procedures that the UN organization must follow. If these procedures are not followed, the supplier is not obliged to honour the warranty terms. Consequently, the UN organization should put in place general steps to follow when problems with accepted items arise. Normally, the advice of the organization’s legal advisor may be required.

When problems with accepted items occur, and before the supplier is notified, the end-user or requisitioner should:

  • identify the UN’s specific rights under the warranty

  • verify that the defect is covered under the warranty and that it applies in the specific incident of failure, by answering these questions:

    • Has the UN organization officially accepted the product or service?

    • When does the warranty expire, and what does it cover?

    • Does the UN organization have any obligations under the warranty, and have those obligations been met?

    • Do the facts support invoking the warranty?

With the information gathered, the UN organization can notify the supplier and do the following:

  • obtain the supplier’s position and its reasons for taking that position

  • reach agreement on how and when the warranty will be applied

  • document the notification.

Regardless of when the defect was discovered, there will be less room for argument if UN staff members notify the supplier before the warranty period expires.

Liquidation of securities

Performance bonds, holdback payments and guarantees must be returned to their owners once the supplier has fulfilled its contractual obligations. Securities must be liquidated at the time and in the manner described in the contract. In the case of works and capital equipment, the securities are typically held and kept safe by the finance department until they have expired.

Supplier performance report

In addition to the remedies, procurement officers document deficiencies on a supplier performance report. Such reports are to be prepared by the requisitioner or the contract manager and then sent to the appropriate procurement officer. Supplier performance reports alert the UN organization to patterns in performance problems and identify suppliers who might present high performance risks. The procurement officer may seek appropriate management review and action when the supplier performance report is particularly negative, according to the policies and procedures of the individual organization. Supplier performance reports are completed by the requisitioners/end-users. They are used to document satisfactory performance of suppliers and document the poor performance of the suppliers to eventually eliminate them from the organization’s supplier roster. Once completed, a copy should be kept on the contract file and on the supplier’s file (see 3.3 Sourcing for further details).

Claims

A claim is a request from either party for entitlement under the contract that is not being fulfilled. Claims might result from:

  • unforeseen costs

  • disputes over the interpretation of contract clauses

  • disputes over what is included within the contract price

  • breaches of contract.

Any claim (whether issued by the UN organization or the supplier) should include:

  • full explanation of the problem as well as the causes of the problem

  • the contract clause under which the claim is being submitted.

Claims should only be considered from suppliers that are contracted directly by the UN organization. Those submitted by a supplier’s sub-contractor should be rejected since there is no contract between the sub-contractor and the UN organization. The supplier may however wish to make a claim against the UN organization on the basis of a claim made against it by its sub-contractor. Contracts can not be closed out until all claims are settled.

Lessons learned

The requisitioner and the procurement officer may be expected to complete a lessons learned report. This is good practice and allows the organization to gather and use information to improve chances of success of future procurement actions. It covers as a minimum the following questions and topics:

  • Was the requirement adequately defined?

  • Were the evaluation criteria appropriate?

  • Was the evaluation method appropriate?

  • What kinds of suggestions were brought up by suppliers?

  • What problems were encountered?

  • Recommendations to avoid similar situations.