One of These Things is Not Like the Others:
Special Issues in Collaborative Sourcing
IAOP Canada (Toronto) Chapter Meeting
Wednesday, June 2, 2010
Joe Parker
Guest Speaker
416 814 5806
[email protected]
John P. Beardwood
Partner
416 868 3490
[email protected]
Index
Tab
Presentations:
IAOP Overview
1
One of These Things is Not Like the Others:
Special Issues in Collaborative Sourcing
2
Fasken Martineau Resource Materials:
3
Outsourcing Checklist
Outsourcing Decision Tree
Information Technology Group Fact Sheet
IAOP Resource Materials:
IAOP At-A-Glance
The 2011 Outsourcing World Summit
IAOP Canada (Toronto) Chapter Meeting
Participants
4
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One of These Things is Not Like the Others:
Special Issues in Collaborative Sourcing
June 2, 2010
IAOP Canada (Toronto) Chapter Meeting
Joe Parker (PWC) and John Beardwood (FMD)
Introductions
Joe Parker – Joe is a consulting partner at PricewaterhouseCoopers LLP, advising
both public and private sector clients in matters of strategy, structure, governance, sourcing
and financing. In his over 25 years of professional experience, Joe has been involved in the
development, implementation or operation of over 30 collaborative arrangements, including
pioneering work in Public-Private Partnerships in Canada.
Direct line: 416 814 5806
Mobile line: 416 716 3565
[email protected]
John Beardwood – John is a partner at Fasken Martineau, engaged in a
corporate/commercial practice, with an emphasis on outsourcing and procurement,
technology and privacy law related matters. He is consistently recognized in The Best
Lawyers in Canada for information technology law, and is highly recommended as an
outsourcing practitioner in the PLC Which Lawyer? Yearbook & in the PLC Outsourcing
Handbook.
Direct line: 416 868 3490
Mobile line: 647 315 7504
[email protected]
Strategic Sourcing
Page 2
June 2010
1
Agenda/Introduction
What can we cover in our brief time today?
Continuum of choices
What is collaborative sourcing
Why and is it right for your organization
Decision and plan – what are the key steps to get there
• Strategy and tactics
• Planning, governance
• Scope and performance
• Operating model
• Where (geography)
• Infrastructure
• SLA, remedies, pricing and financing
• Transition, timing and funding
• Business model
• Contributions and valuation
Elements of shared services and/or co sourcing
that differ from a typical outsourcing
arrangement including:
Governance & structure
Scope & service levels
Pricing & remedies
Legal
Some lessons learned
Legal, contracting and IP matters
Pricing, tax and international matters
Barriers, risks and issues
What you need to succeed/what not to fail
Post deal – relationship (aka contract) management,
Page 3
June 2010
Strategic Sourcing
The strategic sourcing continuum – today we will focus on the elements that typically
distinguish collaborative ventures from more usual contractual arrangements
On your own
Stop
doing it
Do it
yourself
3rd Party
Contract
Out
Outsource
Collaborative
Joint
(co-source)
Joint
(shd svc)
Alliance with external business “partners”
Alliance with internal business “partners”
•Purchasing as agent or principal?
•Corporate model: e.g. service provider; corporate
•Governance
•Value of initial contributions
•Service level packaging, alignment and
entity; partnership?
•Governance, exit/entry, voting/changes
•Value of initial contributions and on exit/wind down
•Service level alignment packaging, alignment, etc
•Pricing at “market”, and mechanisms to benchmark
•Distribution of surpluses
•Financing, funding of deficits
•Liabilities
•Tax positions
•Location
Strategic Sourcing
enforceability, effectiveness of financial remedies
•Pricing at cost, cost plus, market
•Distributions and other “joining” incentives?
•Financing and funding?
Page 4
June 2010
2
Illustration of two collaborative arrangements
Unrelated organizations
Co.
Alpha
Co.
Beta
Common control group
Co.
Alpha
Co.
Zeta
Governing
Agreement (s)
Subsidiary
Alpha
Subsidiary
Zeta
Joint
(shd svc)
Joint
(co-source)
Outsource
Selected
Activities
Subsidiary
Beta
Outsource
Selected
Activities
Strategic Sourcing
Page 5
June 2010
Examples of Co-Sourcing Structures (Health Care Sector)
1. One hospital is the buyer and provides the services to all
other hospitals pursuant to a service agreement or a joint
venture arrangement: e.g. London hospitals
2. A non-share capital corporation is the buyer: e.g. Plexxus
3. A share capital corporation is the buyer: e.g. Shared
Healthcare Supply Services (“SSHS”)
4. A partnership is the buyer.
Strategic Sourcing
Page 6
June 2010
3
The axiom – each deal is unique, and there is a fundamental interdependency amongst
…scope, service performance, price, remedy and governance (the tie that binds). Change one,
others must flex to accommodate.
Clear alignment and
delineation of activities
amongst the players
1. Scope –
the “what” is done,
most often
described as
activities
2. Service
levels –
How well those
scope elements
must be done
Harmonizing of levels/
packages, aligned with
scope (and ideally
reconciled to market)
And are there collaborator
service obligations as
well?
Governance
4. Remedies –
Equitable (remediation
and financial)
mechanisms to create
proper performance
tension, established in
advance, but realistically in a
What happens if
substandard
service?
3. Price –
What we pay for
those services
Compared to market?
closely held situation, who is it
costing anyway
Page 7
June 2010
Strategic Sourcing
Governance & structure
Think about
Structure
Ownership and voting
Voting – for what
Valuing contributions,
settlement and variability of
input factors
Entry/retirement of members
Strategic Sourcing
Comment
Separate body or centres of excellence?
Partnership, incorporated joint venture,
contract?
Different scale of collaborators? Are
ownership and voting in the same
proportion? How do you deal with differing
value contributions?
Can be a standard array of escalating
elements which could include some with
simple majority, super majority and a few
with unanimity.
How does value of initial contributions get
determined? Hard assets contributed?
Business volume? How is the initial
contribution paid for?
Are subsequent collaborators allowed? On
what terms? How are initial parties allowed
to exit? What are events of windup?
* - depending on legal, tax and location considerations
Shared
services
Co-source
Often “centre of
excellence”, or
corporate centre
oriented *
Often by parent edict,
but might be helpful
to better engage the
parties and engender
cooperation
Typically a separate
legal entity *
Key if cross border/
tax etc
considerations
Vital to participation,
exit and sharing of
“profit/loss”
Dictate by parent
Essential to get it right
-
Allocate voting rights
bases on: Value of
contribution? Volume
of usage? Often equal
voting even if
disproportionate
value/scale. BUT
founder’s may have
voting rights whereas
new members may
not.
Often by parent edict, Along a spectrum:
but might be helpful closer to unanimity =
to better engage the likely more acceptable
parties and engender
cooperation
Page 8
June 2010
4
Governance & structure continued
Think about
Comment
Adding/changing services or
standards
Inevitable that changes will occur
Access to assets/IP created
Property of the venture or of the
collaborators?
Distribution of surpluses /
funding losses
There must be pricing (see next), so there
will be years of excess and deficit
Financing
Strategic Sourcing
For what items? From what bankers?
Parent guarantees?
Shared
services
Co-source
Consider
implications on
standard
service offering
Consider
offshore
implications
Depending on
how de-central
the decision
making is, but
consider
incentives for
participation,
etc.
…and how to
deal with added
costs/who pays
Consider value
implications
..and consider
appropriate
“pricing” and the
potential
implications of
disproportionate
contributions
Special issues
for non-profits.
Typically
Typically self
corporate
financed
centre
Page 9
June 2010
* - depending on legal, tax and location considerations
Scope & service levels
Think about
Comment
Scope and activity definition
Think Generic/unique activities rather than
core/non-core
Costing of self-provision
Essential to the base case and economic
proposition
Harmonizing of performance
standards
Decision: (a) Determine all of the current
performance standards, and complete gap analysis
against best-practice, for each entity, then set
appropriate standards to allow gradual
improvement to same = will significantly extend
transition-in period VS. (b) set external standard
based on best-practice = faster, but larger risk of
disruption.
For both economic and operating purposes, it is
important to group into service packages. Will also
facilitate any outsourcing.
Given that, other than for the non-share capital
corporation, excess revenue could be distributed to
the Members, the application of service level
credits in the case of a performance deficiency is
problematic. Greater emphasis on robust
governance model is therefore required.
Bundling / grouping of
standards
Remedies / enforceability of /
viability of
Strategic Sourcing
Shared
services
Co-source
Could be broad
definition –
consider
mandatory vs
optional
participation
Vital to the initial
business case
Probably more
narrow, market
defined activity
(e.g. purchasing)
Internal balanced
scorecard
approach can
give a head-start.
Internal balanced
scorecard
approach can give
a head-start.
Same
Same
Basically
penalizing
ourselves
Could be highly
valuable where for
example the
collaborators have
performance inputs
Same
Page 10
June 2010
5
Pricing
Think about
Comment
Tax implications: major driver 1.
in determining form of service 2.
entity. For example:
Service entity: yes
* If purchasing as a principal,
will Buyer be required to
charge GST on supplies resold
to members (a) if sold with
mark-up?
(b) If not sold with mark-up (i.e.
sold at cost)?
3.
Share capital profit corporation under ITA:
yes
4.
Partnership formed by all equity
members: yes.
1.
Service entity: no
2.
Non-share capital non-profit corporation
under ITA: no
3.
Share capital profit corporation under ITA:
yes
4.
Partnership formed by all equity
members: yes.
Shared
services
Co-source
Non-share capital non-profit corporation
under ITA: yes
Transfer pricing issues
generally
Page 11
June 2010
Strategic Sourcing
Legal and liability considerations
Think about
If service entity is providing
joint purchasing services, is
Buyer purchasing as agent for
each member, or as principal?
Will the proposed structure
shelter members from
business liabilities?
Comment
Co-source
If purchasing as “agent”, entity will have limited
liability, but each member, as principal, will be
exposed to liability, potentially joint and several
as per member contract.
BUT if purchasing as a principal, will Buyer be
required to charge GST on supplies resold to
members? [See discussion in Pricing above.]
1.
Service entity: not for Buyer entity,
although contractual indemnities from
each member can assist in mitigating risk.
Yes for each member.
2.
3.
Less of a
concern re
allocation of
liability
between
Non-share capital non-profit corporation
under ITA: yes.
members as all
Share capital profit corporation under ITA: related.
yes
4.
Strategic Sourcing
Shared
services
Partnership formed by all equity
members: no, as members generally joint
& severally liable.
Adoption of
corporation
model can lead
to complexities
where some of
Buyer’s
activities are
outsourced to a
third party
vendor (see
next issue)
Page 12
June 2010
6
Legal and liability considerations
Think about
Where functions of
Buyer outsourced
to third party, how
will liability be
addressed?
Comment
•Tension: Members want to maximize shelter
from liability vs. third party vendors want the
ability to recover directly from each Member.
•Payment/Damages risk: Concern of vendors
is Buyer entity may be thinly capitalized, with
minimal assets (e.g. staff and assets may be
“loaned” to entity by each Member). Vendor will
want to “look through” corporate shell to ensure
can recover from each member.
Co-source
Shared services
Vendor may seek, for:
Vendor may seek, for:
• Payment/damages
• Payment/ damages
risk: privity agmts, or
through member
guarantees
risk: a parental
guarantee
•Licensing risk: a
master licence with
parent, with each
member being a
sublicensee
Licensing risk: Concern re enforcing software
licenses against each member
•Licensing risk: direct
privity with each
member, through direct
End User Licence
Agreements (“EULA”’s).
•Alternatives to privity
arrangements:
•Problem for each Member: why bother
•Payment risk for
vendor can be mitigated
through payment
mechanism (e.g.
payments in advance,
rather than in arrears)
having a Buyer entity if still end up having direct
liability exposure to vendors?
•Damages risk: can be
mitigated through Buyer
carrying appropriate
insurance
Page 13
June 2010
Strategic Sourcing
Legal and liability considerations
Think about
Comment
Will Buyer effectively act as
Integrator model will suggest that the
integrator for each third party remedies of each member, where the service
vendor?
in question is provided by a third party, will
be limited on a flow-through basis, to
whatever remedy is available under the
Buyer-third party vendor contract.
If Buyer is acting as principal, •Will the “best” and most “scaleable” be
how will existing contracts
assigned? Due to assignment and service
with the Members be treated? bureau restrictions, will most likely require
consent, and again, the licensor may require
that some form of guarantee where the
Buyer is insufficiently capitalized.
Shared
services
Co-source
Likely
Likely
Scope of use
of existing
agreement
may permit
related party
use.
Parental
guarantee may
be required
•Will those contracts which are not assigned
be “managed contracts” for the Buyer, even
if on interim basis?
How to respond to Members Options: set baseline cost, periodically
which are “high maintenance” adjustable, for expected allocated cost of
or fail to perform their
servicing each Member, such that if Member
collaborator/“customer
cost is materially exceeded, Member may be
responsibilities”?
responsible for additional charge-backs.
Strategic Sourcing
Page 14
June 2010
7
Simple Illustrations & Potential applications – these collaborative structures
have been used successfully for many years, for many “activities” or functions, in all industries,
including
•
•
•
•
•
•
Common / shared administrative services or goods procurement in government/healthcare
Common processing of routine clearance transactions in banking
Financial coordination centres for commercial activities in multi-nationals
Collaborative distribution arrangements for beverage businesses
Centralized research or marketing in chemical specialties companies
Real estate holding and/or management in retail organizations
Page 15
June 2010
Strategic Sourcing
Some final thoughts and lessons learned
Some of our observations
The oft quoted learnings
Complicates matters if we want to sell one of the
served businesses
Enduring management support
Admit new non-founding collaborators (Scalability #1)
Valuing and “the real value of” initial contributions
How do we deal with transition, start up and other
initial costs?
Changing value of the “contributed business”
Allow the venture to handle products/services other
than those brought by the founders (Scalability #2)
Select the processes/activities that will benefit most
Establish clear objectives and priorities –
communicate them with key participants &
stakeholders
Alignment of objectives of participants
Clear description of the business model
Clear governance model
What do we do if there is profit (or worse, a deficit)?
The changes are ongoing
Initial and ongoing scope and service level alignment, Communicate – often
how are inequities in performance paid for?
Mechanism to manage disputes
High level mark for services
Strategic Sourcing
Page 16
June 2010
8
CHECKLIST
Technology and Intellectual
Property Group
Outsourcing Issue Identification Checklist
This list prepared by Lisa Abe is an excerpt from Outsourcing Transactions - A Practical Guide. Edited by: John Beardwood and C. Ian Kyer, both of the firm
Fasken Martineau DuMoulin LLP.
www.fasken.com/outsourcingguide
Has a cap on service level credits been sought by the service provider
Pre-negotiation Considerations
Have you recognized the importance of incorporating the form of the
key agreements into the RFP in order to start the negotiation process
from your own draft and not from the other party’s standard form
agreement?
Have you weighed the advantages and disadvantages of conducting,
and are you prepared for, parallel negotiations with two service
providers?
and if so, have you considered whether the service provider’s incentive
to give quality service will be compromised once the cap is reached?
Asset Transfer Issues
Have you considered whether the customer will want to
re-purchase some or all of the assets at the termination of the
agreement, and has this post-termination purchase been included in the
agreement as a customer option? The service provider will likely be
interested in having the customer re-purchase the assets where the
service provider cannot use these assets later.
Will the assets being purchased need to be inspected by the service
provider and if so, are there any concerns that this due diligence may
alert employees and others that an agreement is pending?
Are you prepared for the fact that compiling all the relevant
documentation for the service provider’s due diligence may be
unexpectedly time-consuming and expensive?
Are you prepared for the fact that certain intangible assets such as
contracts and licences will need to be transferred along with any physical
assets, and that a due diligence review will need to be conducted to
determine if these contracts are assignable? If a particular contract does
not expressly or implicitly permit assignment (where, for example, the
contract is silent on the issue), it is critical to understand that, as assignor,
you will not have been released from performance of the obligations
under the contract even where the assignee has agreed to assume them.
Have you addressed the assignment of the appropriate assets back to
the customer at the termination of the agreement?
Have you agreed on a comprehensive method of establishing the value
of the assets to be purchased, particularly where a final list of assets is
not available by closing date? Has a dispute resolution mechanism been
contemplated if all values are not agreed upon prior to closing?
Purchasing the assets may have important tax implications that should
be considered prior to establishing asset values.
The Master Agreement
Have you included a statement setting out the objectives, purpose and
intent of the outsourcing in an effort to provide an interpretive tool
should there be any ambiguities within the agreement?
Have you been careful in accepting “base assumptions,” which may
expose you to disproportionate risk?
Have you determined the scope of the services to be provided? If it is a
complex agreement, have you contemplated including a representative
non-exhaustive list of in-scope services and/or an ancillary services clause,
in an effort to minimize the inevitable and potentially costly ambiguities
that may arise?
As a customer, are indirect damages, such as loss of profits, a material risk
in the event of service provider failure and if so, have you considered the
extent to which the service provider should be liable for such losses?
Have you carefully negotiated the permitted circumstances for
termination and considered all the cost and transitioning implications to
ensure a minimum of business disruption?
Project Management
Have you determined who will have responsibility for updating the
technological foundation of the outsourcing agreement to ensure that
the customer continues to benefit from the bargained for standard of
technology and its associated efficiencies over the course of the
agreement?
Have assurances been given that certain experienced key personnel from
the service provider will not be reassigned to other projects in order to
maintain an appropriate level of service quality?
Have you considered whether to include incentives such as gainsharing
for service provider efficiencies and cost reductions, at the risk of
creating cost uncertainty in the agreement?
Have you negotiated whether or not service level credits will be the
exclusive remedy for breach of a service, and if so, whether customer is
prepared to waive future rights with respect to the breach?
Pricing and Payment
Have you determined the gap between the customer’s existing levels of
service and the desired optimal service level standards that are reflective
of current industry practices? The use of a third party consultant is often
required to assist in this determination.
Has a detailed analysis of customer’s current in-house costs associated
with the services to be outsourced (a base case) been done? Although
this determination may be time-consuming and expensive, it is necessary
to determine whether the prospective outsourcing is viable, and to
measure the competitiveness of service provider proposals.
Does the pricing model have enough flexibility to allow for the
inevitable changes that will occur to the business over the life of the
agreement?
Have you considered multiple levels of service standards and a means
of receiving notice in the event of a breach?
Have you prioritized the service levels to allow for a hierarchy of
remedies in the event of service provider breach?
If the service provider is in a position to obtain enhanced savings, such
as for insurance, third party licenses, use of customer’s assets, etc., have
these savings been considered in contract pricing?
Where the agreement is international, have currency issues been
considered when pricing the agreement?
The Service Level Agreement
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JOHANNESBURG
CHECKLIST
Technology and Intellectual
Property Group
Have you considered whether you are subject to any audit requirements
with third parties that may require those third parties to have access to
records generated as a result of this agreement?
Benchmarking
Due to the typically lengthy term of the outsourcing agreement, have
you ensured that pricing over the life of the agreement is competitive?
Have you considered the service provider’s perspective that it may be
counting on a predictable and steady stream of income to offset the
potentially large initial investment it made acquiring the necessary assets
to service the customer?
Will benchmarking result in a combative process that is against the spirit
of a cooperative long-term relationship?
Implementation, Governance and Administration
Have you established a successful transition strategy to minimize
disruptions to the customer’s business once the agreement is signed?
Due to the length of the contract, and the possibility that the customer
will want to change its business operations or take advantage of
technological advances over the course of the agreement, is the
agreement flexible enough to allow for these changes?
Employment and Labour Issues
If employees are to be transferred to the service provider have all benefit
policies, health plans, disability plans, life insurance and dental plans
been studied to determine responsibility?
If the employees are non-unionized, have the terms and conditions of
employment been found, and are you aware of the laws of the relevant
jurisdiction when negotiating employment issues in the agreement?
Have all termination issues such as constructive dismissal, notice periods
and severance been reviewed?
If the employees affected are unionized, have the terms and conditions
of the collective agreement been reviewed?
Pension Considerations
Has due diligence with respect to the customer’s pension and benefit
plans been performed in order to determine the best way to structure
the outsourcing agreement?
Is the service provider prepared to fund the pension plan? If not, the
customer may need to instigate a partial wind-up of the plan. This could
result in the full and immediate vesting of the plan in the plan members
and significant attendant costs to the customer.
Will the service provider agree to provide a pension plan to the
outsourced employees? If not, it is important for the customer to
recognize that it is not completely discharged from all pension liabilities
assumed by the service provider.
Exit Strategies
Has a comprehensive yet flexible exit strategy been negotiated so as to
ensure the continued delivery of services with a minimum of disruption?
Have you contemplated the fee structure during the exit transition?
Tax Issues
Have all tax issues raised by the outsourcing agreement been fully
considered as these could easily eliminate anticipated profits, particularly
where profit margins are narrow?
Have you considered whether a normally non-taxable in-house service
provided by employees to the employer may become taxable as soon as
a third party supplier provides the service? Special attention must be
paid if the third party is physically located in another jurisdiction and
subject to unfamiliar laws.
IT Security Compliance
Have applicable corporate governance laws and regulated industry
requirements such as those designed to ensure that senior executives
are accountable for the reliability of their company’s disclosures and
financial reporting, been complied with? The customer may wish to
negotiate the right to audit the service provider to ensure that the
provider is in compliance with the appropriate standard of internal
control over financial reporting (ICOFR) and disclosure controls and
procedures (DCP) as set by the customer.
Where the service provider must upgrade its systems to conform with
the level of information security demanded by the customer, who will be
responsible for the costs associated with this upgrade?
Prior to signing the agreement, have you conducted due diligence into
the ability of the service provider to meet the customer’s legal
obligations with respect to information security? The customer may
wish to negotiate a testing period during which the ability of the service
provider to provide the appropriate security is measured. Depending
upon the nature of the information, the customer may wish the service
provider to obtain insurance appropriate to the outsourcing deal. In
contemplation of service provider breach of informational security, the
parties should carefully negotiate corresponding limitations of liability
and indemnities.
Potential Offshoring Issues
Have you considered whether the labour savings, which typically fuel
the desire to offshore, are worth the additional complexities of the deal
including cost control issues, project management issues, service level
assurances, and the enforcement of contractual rights?
Are there domestic laws, such as personal privacy laws, that would
interfere with the transfer of data and goods out of the domestic
jurisdiction?
Have appropriate foreign legal counsel and industry consultants been
carefully considered? Foreign expertise is critical when drafting the
agreement in order to mitigate the risks of offshoring as much as
possible.
Has sufficient attention been paid to dispute resolution mechanisms in
an effort to avoid the costly and extremely risky litigation of an
international agreement?
Have you considered whether there is adequate intellectual property
protection in the foreign jurisdiction?
Leaders of Fasken Martineau’s Outsourcing Initiative
John Beardwood
416 868 3490
[email protected]
VANCOUVER
CALGARY
C. Ian Kyer
416 865 4396
[email protected]
TORONTO
OTTAWA
Lisa Abe
416 868 3358
[email protected]
MONTRÉAL
QUÉBEC CITY
Bruce Tattrie
604 631 4753
[email protected]
LONDON
PARIS
Roger Loosley
+44 207 917 8511
[email protected]
JOHANNESBURG
DECISION TREE
Technology and Intellectual
Property Group
Your Outsourcing Decision Tree
So you’re thinking about outsourcing but don’t know where to begin? Fasken Martineau knows outsourcing. A number of our outsourcing lawyers
are ranked among the foremost business and technology law practitioners both in Canada and globally. In each of our offices, we have broad and longstanding experience and expertise in acting for both customers and vendors at all stages and for all sizes of outsourcing arrangements.
1.
Making the Decision to Outsource
•
•
•
•
•
•
2.
RFP
•
•
•
•
•
3.
Are your draft agreements readable and understandable by the business team?
Is governance given sufficient attention?
Will each side know its roles and responsibilities?
Will the agreements facilitate problem identification and dispute resolution?
During the Term
•
•
•
•
•
6.
Selection of one provider or parallel negotiations with two or more?
What will be the rules of negotiation?
What is the drop-dead date for signed agreement and initiation of the services?
Separate teams for each agreement?
The Agreements
•
•
•
•
5.
Do you have the expertise to do an RFP/RFQ in-house? Outside advisers?
Have your existing internal service levels been documented?
Will a draft agreement or key terms of agreement be part of the RFP?
Have you considered any legal requirements for your procurement including fairness doctrines?
Are you ready to handle the responses? Criteria for decision making?
Negotiating with (potential) provider(s)
•
•
•
•
4.
What are the reasons, in priority, for the proposed outsourcing?
What alternatives are available?
Are there specific risks? Timing constraints?
Can you meet relevant accounting and other regulatory requirements?
Do your internal processes have to be changed? Documented? Measured?
Offshore vs near shore vs local?
Have you prepared for transition in, implementation, steady state, renewal or transition out?
Have you retained key people familiar with the deal to manage the relationship?
Have you built in periodic evaluations of success (e.g. reporting, audit, benchmarking)?
Actual vs. budgeted costs? Governance arrangements?
Have you an agreed process for change management (e.g. objectives, personnel, technology,
specifications, regulatory, industry)?
Issues Post-Termination/Expiry of Term
• Renewal?
• New vendor?
• Insource?
Our outsourcing practice is built on providing our clients with expert advice on how to effectively structure their outsourcing projects to ensure that real
market benefits and long-term success are achieved. Let Fasken Martineau help you navigate outsourcing with ease and confidence.
VANCOUVER
CALGARY
TORONTO
OTTAWA
MONTRÉAL
QUÉBEC CITY
LONDON
PARIS
JOHANNESBURG
DECISION TREE
Technology and Intellectual
Property Group
Fasken Martineau’s Expertise in Outsourcing
We have been involved in advising some of Canada’s largest public and private sector outsourcing transactions.
Air Canada
Maximus
Air Transat
MDS Nordion
AT&T
Moneris Solutions
Atos Origin
Ontario Hwy 407
Bell Canada
Ontario Ministries of Attorney General & Solicitor General
Cirque du Soleil
Ontario Ministry of Transport
Cognicase
PwC
Dupont
Scotiabank
EDS LED Consortium
St. Joseph's Healthcare Hamilton
Government of British Columbia
Sun Microsystems
Hudson's Bay Company
Sunnybrook Health Sciences Centre
Independent Order of Foresters
TD Bank
“We wrote the book”
Outsourcing Transactions:
A Practical Guide
Edited by: John Beardwood and C. Ian Kyer
both of firm Fasken Martineau DuMoulin LLP
www.fasken.com/outsourcingguide
Leaders of Fasken Martineau’s Outsourcing Initiative
John Beardwood
416 868 3490
[email protected]
C. Ian Kyer
416 865 4396
[email protected]
Lisa Abe
416 868 3358
[email protected]
Bruce Tattrie
604 631 4753
[email protected]
Roger Loosley
+44 207 917 8511
[email protected]
www.fasken.com/outsourcing
VANCOUVER
CALGARY
TORONTO
OTTAWA
MONTRÉAL
QUÉBEC CITY
LONDON
PARIS
JOHANNESBURG
FACT SHEET
Information Technology Group
Information Technology
FACTS
Best Lawyers in Canada
consistently lists four members of
Fasken Martineau’s IT Group
Information Technology (IT) permeates the global business community – opening up a world of
opportunities and creating its own unique challenges. Whether you need help with core bricks and
mortar IT work or are looking to tap into the power of cutting edge technology, you need a legal team
that understands the IT world. Fasken Martineau’s IT Group advises on everything from large systems
implementations and mergers and acquisitions to new Internet business models and nanotechnology.
The International Who’s Who of
Internet & e-Commerce Lawyers
(2009) named two members of
our IT group to the elite
international list of the 10 “most
highly regarded individuals”
Our Clients
The Canadian Legal Lexpert
Directory regularly recommends
and ranks several members of our
IT group, names one lawyer to its
list of The Leading 500 Lawyers in
Canada, and names another to its
Guide to the Top 100 Industry
Specialists in Canada
Clients benefit from our unique qualifications:
PLC Which Lawyer? Lists
Fasken Martineau as “highly
recommended” in both
Outsourcing and in IT and ecommerce law, and recognizes
several leading lawyers in the IT
group
We serve customers and vendors, independent entrepreneurs and start-ups, and established
businesses and multinational corporations. Our clients include banks and financial institutions,
technology companies, public and private companies, health care providers, and other public sector
institutions.
•
Full picture view – We have extensive experience acting for both customers and vendors. This
unique insight into both parties’ interests and expectations makes us effective negotiators, able to
provide clients with business-friendly, practical and solutions-oriented advice.
•
Up-to-date insights – Whether it is specialized technology issues for Canadian regulatory sectors
or the development and implementation of corporate policies as they relate to data security, record
retention and privacy, we stay current on the issues and deliver the most appropriate solutions for
your unique needs.
•
Multi-industry expertise – Our portfolio not only includes technology sector work, but a range of
other industries such as transportation, financial services, healthcare, insurance, public
sector/government, energy, entertainment, Internet, e-commerce, online gambling, communications
and consumer technologies.
•
Trailblazers in IT law – We led the charge into IT law practice in Canada when the industry was in
its infancy, recognizing early the powerful force IT would exert on the global economy. If it relates to
IT law, we have done it. In fact, in some cases, we wrote the book. Outsourcing Transactions: A
Practical Guide, co-edited by two of our lawyers, is the leading, and only loose-leaf outsourcing text.
Martindale-Hubbell includes peer
review ratings for many lawyers in
our IT group
Chambers Global ranks a
member of the team in Band 1 of
Canadian IT lawyers
For more than five consecutive
years, we have been co-authoring
Outsourcing Transactions: A
Practical Guide, Canada’s first
and only comprehensive legal
loose-leaf service on outsourcing
Our Expertise
Fasken Martineau’s support for technology users includes:
•
•
•
•
•
Large system implementations
Technology, business process and transformational outsourcing transactions
Canadian procurement disputes
Canadian data security and privacy issues
Corporate policy development and implementation.
Our support for technology companies includes:
•
•
•
•
•
•
•
Business process and transformational outsourcing transactions
Canadian online gambling
E-commerce ventures
Intellectual property portfolio development and management
Licensing and development specialized issues
New media issues
Open source and new development methodologies related to licensing and development.
We also work closely with our in-house practitioners in Intellectual Property, Corporate Finance,
Tax, Mergers & Acquisitions, Employment and Litigation to ensure all of your IT-related legal
concerns are addressed.
VANCOUVER
[20Apr10]
CALGARY
TORONTO
OTTAWA
MONTRÉAL
QUÉBEC CITY
LONDON
PARIS
JOHANNESBURG
FACT SHEET
Selected Experience
Advised Emergent in the development of its (non-US) worldwide
outsourcing program for clinical research, central laboratory
services, clinical trial supply manufacture and related activities.
Advised National Bank of Canada in the outsourcing of its payroll
services and mortgage loan management systems.
Advised Air Canada on its outsourcing agreement with ITA
Software to develop a state-of-the-art airline reservation
management system.
Advised Bank of Nova Scotia in parallel track negotiations with
three vendors, in connection with the outsourcing offshore of
certain technology-related services.
Advised MDS Nordion in the negotiations with Atomic Energy of
Canada Limited of a 40-year, multibillion dollar supply agreement
for medical isotopes.
Advised The Independent Order of Foresters in the negotiation
of a $108 million, seven-year outsourcing arrangement with CGI
Information Systems and Management Consultants Inc.
Advised Atos Origin, a leading provider of outsourced information
technology services, in complex parallel negotiations with
Celestica International Inc. regarding the outsourcing of certain
technology services by Celestica on a global basis.
Advised PricewaterhouseCoopers in connection with a complex,
three-party $100 million enterprise effectiveness outsourcing by
Bell Canada to both PricewaterhouseCoopers and CGI Group Inc.
Advised PricewaterhouseCoopers in the negotiation of a major
outsourcing deal with Nortel Networks Corporation valued at
US$625 million.
Advised Cirque du Soleil with regard to the provision of
worldwide IT outsourcing to IBM for the management of the IT
infrastructure of Cirque du Soleil's overall business.
Advised Moneris Solutions Corporation, one of the largest point
of sale service providers in Canada, in connection with the
outsourcing of the maintenance and distribution of their POS
terminals.
Advised the Hudson’s Bay Company in connection with
replacing, on an urgent basis, the existing outsourcing provider of
computer technology in relation to a credit card program, in
circumstances where the provider abruptly terminated operations.
Advised Cognicase, an outsourcing provider, in the IT outsourcing
of a large Canadian bank affiliate.
Advised The Toronto Dominion Bank in the transitional
outsourcing of systems for its custodial business.
Advised a consortium led in part by EDS Canada for the $1+billion
outsourcing of Ontario’s land registry system.
Advised Dupont in the outsourcing of payroll services to a service
provider.
Advised the Ontario Ministries of Attorney General and
Solicitor General on the Integrated Justice Initiative, an
outsourcing to a consortium led by EDS Canada.
Advised Bell Canada in a 10-year IS/IT outsourcing contract
entered into with CGI, then reported to have a value of $4.5 billion
and to be the largest outsourcing contract awarded in Canada and
one of the largest in North America, in the context of the merger of
Bell Sygma (the BCE Inc./ Bell Canada IS/IT subsidiary) with CGI.
Advised Maximus, a leading U.S. provider of outsourcing services
for government health and social service programs, in connection
with a $324 million outsourcing by the province of British Columbia
Ministry of Health of services for the administration of British
Columbia's public health insurance program, involving unique
challenges relating to the security of personal information.
Acted for Beijing-based Surpassing Technologies Inc. in the
licensing and sale of its core software assets to Microsoft
Corporation.
Acted for Vancouver-based NowPublic, Inc. in its acquisition by
US-based Examiner.com.
Acted for Vivonet Incorporated in its acquisition of DAS Software
Inc.
Acted for 90 Degree Software Inc. in its sale to Microsoft
Corporation.
Acted for Sun Microsystems on a $170M - $200M system
development/outsourcing transaction with the Province of British
Columbia.
Acted for the Vancouver International Airport Authority on a
complex transaction involving IBM.
Acted for TELUS on a complex transaction involving Accenture.
Advised AT&T Solutions in connection with the more than $500
million outsourcing to AT&T Solutions of the telecom operations of
a major Canadian bank affiliate.
Advised Sunnybrook Health Sciences Centre in the demerger of
Sunnybrook Health Sciences Centre and Women’s College
Hospital and transitional outsourcing of Women College Hospital's
IT functions to Sunnybrook.
Advised St. Joseph’s Healthcare Hamilton in the renegotiation
of its multi-year outsourcing of its technology function.
VANCOUVER
[20Apr10]
CALGARY
TORONTO
OTTAWA
MONTRÉAL
QUÉBEC CITY
LONDON
PARIS
JOHANNESBURG
IAOP is the global
standard-setting
organization and
advocate for the
outsourcing
profession.
IAOP membership:
• Improves
outsourcing
outcomes
• Reduces
outsourcing risks
• Associates you
and your
organization with
the leaders in the
field
“The network of
professionals who
are involved with
IAOP have been one
of the best resources
around. IAOP is in
sync with the major
issues facing the
industry.”
— Kurt Kohorst, COP
Vice President, Agency
Markets
Liberty Mutual Insurance
IAOP Corporate Member
“By being a member of
IAOP, we have immediate
access to research, best
practices, a code of ethics
and a broad network
of other outsourcing
professionals that allow
us to add significant
value to our outsourcing
relationships.”
— Christopher Long
Director, Outsourced
Operations
Blue Shield of California
IAOP Corporate Member
AT-A-GLANCE
IAOP: Better Deals, Better Results
The International Association of Outsourcing Professionals™ (IAOP™) is
the global standard-setting organization and advocate for the outsourcing
profession. Our members lead global efforts to improve business results
through outsourcing, offshoring, shared services and the entire spectrum of
flexible resourcing solutions. Whether you and your company are involved in
outsourcing as a customer, provider or advisor, IAOP membership improves
your company’s governance, balance sheet and shareholder value.
You Gain:
• 24-hour a day, immediate access to all IAOP programs along with the
latest information from around the world in the association’s knowledge
center, Firmbuilder.com®
• Immediate access to top providers, advisors, and customers to
exchange ideas and information
• Access to solutions to the toughest outsourcing problems along with
benchmarks for your own operations
• Better information leading to better outsourcing deals and outcomes
• Global influence and visibility across the outsourcing industry
• The support you need to attract, develop and retain top talent
IAOP Membership Benefits
Research
IAOP offers a comprehensive research agenda geared not only toward today’s
best practices, but tomorrow’s next practices. Members gain access to a
continuous stream of unbiased reporting.
Member Networking & Knowledge Sharing
Member networking and knowledge sharing is facilitated through IAOP’s global
chapter structure, its online member communications network and member-tomember matching through its online member directory.
Cutting-Edge Conferences
IAOP’s Outsourcing World Summit®, regional and topical conferences are inperson, interactive opportunities to dialog with other professionals from a wide
diversity of experiences, creating a melting pot of ideas. Participation – included
with all IAOP Corporate Memberships – gives you the information needed to do
your job.
Professional Standards, Training and Certification
IAOP’s Certified Outsourcing Professional™ (COP) program is the de facto
standard of professional excellence across the industry. Certified professionals
produce better outcomes; have greater influence; are more highly regarded,
respected and coveted; make better partners; and are validated and supported
in their careers. The COP Master Class and other IAOP-exclusive training
programs provide an affordable way of ensuring that your team has the skills it
needs to make outsourcing successful.
Identifying the Best-of-the-Best
The Global Outsourcing 100™ is IAOP’s annual ranking of the world’s best
outsourcing service providers and advisors. A rigorous, independently judged process
establishes a benchmark to help your company save time and money by quickly
connecting it with the right partners.
Advocacy
IAOP provides a clear voice on the benefits of outsourcing and its position in the
global economy. This provides your organization the authoritative platform it needs to
communicate what it is doing, how, and why in a way that reinforces its commitment
to business ethics, corporate social responsibility and economic growth and
prosperity. IAOP’s Code of Ethics is the industry benchmark.
Special Membership Benefits for Providers and Advisors
Organizations that provide and advise on outsourcing receive special IAOP
membership benefits that build their brand value, show their commitment to the field,
elevate the status of their company and enable them to build relationships with the
industry’s leaders.
“By being a member of IAOP we get immediate access to research and best
practices material. It also provides a platform for companies to showcase
their thought leadership by contributing material to the content-rich bank
of IAOP.”
— M. N. Karthik, Sr. Executive, Strategic Marketing, Wipro
IAOP Corporate Member
IAOP Membership Levels
Professional Membership gives individuals access to their peers and the latest
outsourcing information — 24-hours a day, all around the world. Member discounts
make participation in all of IAOP’s programs and services more affordable.
For More Information
on:
Sponsoring an Event or
Becoming a Corporate
Member
Renée Preston
Director, Association
Development
[email protected]
Starting a Chapter
Julie Huson
Director, Member Services
[email protected]
Becoming a COP or
Being Part of The Global
Outsourcing 100®
Pam O’Dell
Director, Professional
Development
[email protected]
Becoming a
Professional or Student
Member
Michael Forbes
Manager, Member
Services Operations
mike.forbes@iaop.
org
Attending an Event
Beryl Sorensen
Director, Events
beryl.sorensen@
iaop.org
Customer Corporate Membership makes a company a better buyer of outsourcing
services. It provides access to exclusive member-only services, participation
and input to the association’s research agenda and company wide support for its
outsourcing program and professionals.
Provider/Advisor Corporate Membership allows companies to showcase their
commitment and capabilities to IAOP’s global network of influencers and buyers.
In an industry that demands continuous learning and exceptional reputations for
excellence, IAOP membership positions your company as a leader.
Upcoming IAOP Events & Training Programs
The 2011 Outsourcing World Summit®
February 21-23, 2011
Renaissance Esmeralda
Indian Wells, CA
Certified Outsourcing Professional (COP) Master Classes
Check online for a Master Class near you!
For information, contact IAOP at +1.845.452.0600 ext. 100 or visit us
online at www.iaop.org. Become a member online and gain immediate
access to benefits and services that will enhance your career and
improve your company’s bottom line today!
“My IAOP membership
has been, and
continues to be, a
rewarding relationship
as it helps me access
new customers, work
with globally competent
professionals and
contribute in a small
way to the growth of
this veritably complex
industry. ”
— Bobby Varanasi, COP,
Head of Marketing &
Branding, MDeC
IAOP Corporate Member
The 2011
Outsourcing World Summit
®
Conference & Exposition
February 21-23 • Renaissance Esmeralda Resort • Indian Wells, California
The International Association of Outsourcing Professionals® (IAOP®) presents the 14th edition of its world-renowned conference — The
Outsourcing World Summit — on February 21-23, 2011 at the Renaissance Esmeralda, Indian Wells, California.
Every year, outsourcing executives from across the industry and around the world who are seeking the very latest insights and ideas attend
the Summit. Educational sessions deliver specific actionable solutions to current challenges faced by experienced professionals. Case studies
feature actual experiences and the lessons learned, and discuss new ideas, approaches and opportunities. The Outsourcing World Summit has
become the event that executives attend each and every year to stay informed of the latest developments affecting the outsourcing industry
and their profession.
The caliber of the Summit gets increasingly higher, with new and unprecedented opportunities for learning and networking.
• Day three of The Outsourcing World Summit is a “Conference Within a Conference” At-
tendees can
select from IAOP’s Real-Time Strategy Session or one of two hands-on practicum
designed to help customers, providers and advisors get more value, right now,
from their current outsourcing efforts
• Pre- and Post-Conference Workshops: Helping you learn about, quickly
achieve or maintain the highly coveted Certified Outsourcing Professional® (COP) designation
• Expanded Customer-Only Speed Networking and a Provider/
Advisor-Only Speed Networking session
• Audience Voting: See what your colleagues are thinking about
today’s pertinent outsourcing issues
• Gala Awards Luncheon: See who’s next to be inducted into
The Outsourcing Hall of Fame and who will receive IAOP’s
Member of the Year awards
• The Global Outsourcing 100®: The world’s best outsourcing service providers and advisors are announced
• Global Services Mall: The Summit’s Exhibition Hall showcases top companies from around the world in an
engaging and relaxed setting
• Networking Receptions: These special events bring
delegates together for networking, professional and
business development and, of course, a great time!
www.IAOP.org
The 2011
Outsourcing World Summit®
Conference & Exposition
February 21-23 • Renaissance Esmeralda Resort • Indian Wells, California
REGISTRATION FORM
The 2011
Outsourcing World
Summit
OFFER EXTENDED! Register between May 1 and May 31 JUNE 15
and save $500 PLUS get a free room night*
DELEGATE INFORMATION
Name: _____________________________________________________________________
Title/Position: _______________________________________________________________
Company: __________________________________________________________________
Address: ___________________________________________________________________
__________________________________________________________________________
City: ________________________ State/Province: _____________ Zip: ________________
Country: ___________________________________________________________________
Tel: __________________________________ Fax: _________________________________
Mobile: _______________________________ Email: _______________________________
REGISTRATION includes access to all main sessions, educational track sessions, Global Services Mall,
conference meals and select receptions.
 $1,400 IAOP Member Rate plus 1 free room night - ends May 31, 2010 June 15, 2010
 $1,600 IAOP Non-Member Rate plus 1 free room night - ends May 31, 2010 June 15, 2010
PAYMENT INFORMATION
 Check Enclosed (please make payable in U.S. funds to IAOP)
 Electronic Funds Transfer (banking details will be sent to you)
 Credit Card: m AmEx m VISA m MC
Name on Card: ______________________________________________________________
Card Number: __________________________________ Expiration Date: _ _____________
Signature: __________________________________________________________________
I agree and accept that any cancellation penalties will be charged to my
credit card according to the published cancellation conditions. *
REGISTER BY MAIL, PHONE OR FAX:
www.IAOP.org
IAOP
2600 South Road, Suite 44-240, Poughkeepsie, NY 12601
Phone: +1.845.452.0600 ext. 100 Fax: +1.845.452.6988
www.IAOP.org
*With paid registrations from 5/1 -6/15 only. Free room night valid at Renaissance Esmeralda, Indian Well, CA for use between
February 20-23, 2011 and must be reserved by January 11 by calling calling +1.800.446.9875 or +1.877.804.4070. Outside the US
please call +1.506.474.2009. Identify yourself as attending “The 2011 Outsourcing World Summit.” The one free room night will
be credited to you upon checkout.
Terms and Conditions: Space cannot be confirmed without payment or payment authorization. Name changes are
gladly accepted at any time. Cancellations are charged a 25% fee up to 30 days in advance of the program date, 100%
thereafter and must be received in writing.
See www.IAOP.org for IAOP’s privacy policy.
Canada (Toronto) Chapter Meeting
June 2, 2010
Participants
Marta McIlroy
BMO Financial Group
Consultant
Joseph Parker
PricewaterhouseCoopers LLP, IAOP FM
Senior VP & Managing Director
Joann Sochor
Bank of Montreal
VP Corporate Compliance
Kishor Chag
PricewaterhouseCoopers LLP, IAOP FM
Director
Carlo G. Angeles, IAOP PM
Castech Data Services Inc.
President
Jill Schatz
Primus Telecommunications Canada Inc
General Counsel & VP
Bob J. Mathers, IAOP PM
Compass
Consultant
Brian Roemmele
Privacy Assured Inc
President & CEO
Gerry Fields
Cornerstone Securities Canada, Inc.
President & CEO
Katherine E. Hyatt, IAOP PM
Purolator Courier Ltd.
Contracts Manager
John Beardwood, IAOP PM
Fasken Martineau, IAOP CM
Attorney
Ted Crysler
Rogers Communications
Bob Burrows
G4 APPS
Barry Fisher
SAP Canada Inc.
VP, Gen Counsel &Corp Secretary
Stephen Kirby
IBM Business Consulting Services
Senior Legal Counsel
Anita Mackey
Scotiabank
VP & Associate Gen Counsel
Gaurav Juneja
Mahindra Satyam
Business Manager
John Le Blanc
Scotiabank
Senior Legal Counsel
Mohan Nair
Nair Consulting Group
Manager
Mark Greenfield
Scotiabank
Director, Operational Services
International Association of Outsourcing Professionals (IAOP)
2600 South Road, Suite 44-240, Poughkeepsie, NY 12601
Phone: 845.452.0600 Fax: 845.452.6988 www.outsourcingprofessional.org
Asif Quadir
Scotiabank - Legal Department
Senior Legal Counsel
Djoko Corovic
Smart Mine Solutions
Principal
Bryan Pett
Sunnybrook-Osler Centre for Prehospital
Director, Corporate Services
Faeron Trehearne
TD Bank Financial Group
Senior Manager & Senior Counsel
Atif Islam
The Bank of Nova Scotia
Senior Counsel
Bob Philip
Xerox Canada Inc.
Legal Counsel
International Association of Outsourcing Professionals (IAOP)
2600 South Road, Suite 44-240, Poughkeepsie, NY 12601
Phone: 845.452.0600 Fax: 845.452.6988 www.outsourcingprofessional.org