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Identify risks early in the separation life cycle
Organizations tend to underestimate the cross-functional and external dependencies, along with the level of effort required to manage contract workload. To best manage such complexities, contract separation efforts need to be started early in the divestiture process by tapping the right supplier and customer management, legal and functional teams that will enable clean DivestCo agreements for Day One.
Among the issues that need to be considered:
- Cross-functional dependencies: Separating contracts is highly cross-functional and requires various departments to work together closely. While the procurement department is generally expected to drive the supplier contract separation effort, business functions, such as information technology (IT) and human resources (HR), must determine the technical scope of the contract. Drafting and sending supplier notification letters, tracking responses, and aligning with legal in case of negotiations require significant collaboration across functions.
- External dependencies: It is also common to see large suppliers, especially technology software providers, exercise leverage at the time of transaction. If their contracts are not addressed on a timely basis, it can jeopardize the timing of the separation process. It can also cause unanticipated financial or regulatory roadblocks, as contractual terms may not allow the assignment of assets or operationalization of transition services between the separating entities.
- Level of effort: To reduce transaction costs, organizations may insource this effort and execute manually. For large transactions, this approach often creates additional burdens and last-minute surprises. Individual functions may not have the proficiency or experience to review contracts and decide necessary actions. Leveraging advanced analytics and experienced third-party providers can help mitigate some of this risk.
- Identification of critical contract attributes: In some cases, organizations are well into their contract separation effort before taking the necessary time to identify “critical” attributes to be extracted from the contract documents. This can result in a reworking by all teams involved.
- Alignment on milestones and templates: Deal teams should make sure that their contracts work-stream team is aware of and aligned with the sales and purchase agreement (SAPA) to understand how much time is available for the effort and communicate urgency across the organization.
Step 1: Establish contract separation work stream governance
One of the first steps in the contract separation life cycle is to establish a separate work stream with cross-functional leadership from legal, procurement and other groups, with one single owner accountable for program delivery.
Several leading practices to establish and sustain contract separation governance include:
- A cross-functional contracts separation kick-off meeting to align on roles, responsibilities and workflow, including who will collect contracts and where they will be stored for dispositioning
- A central tracker managed by the contract separation team with inputs from business stakeholders
- Weekly cadence to address contract risks as they develop
- Contracts status dashboard to communicate an executive summary view of weekly progress