Monday, November 16, 2020
A number of years ago, I became acquainted with Kate Vitasek, a colleague in The University of Tennessee's Haslam College of Business. She introduced me to a way of supply contracting called "vested." Vested relationships are characterized by the following attributes that may differentiate them from traditional contractual relationships (as identified in the FAQs on the vested website):
- "Uses flexible Statements of Objectives, enabling the service provider to determine 'how'”
- "Measures success through a limited number of Desired Outcomes"
- "Uses a jointly designed pricing model with incentives that optimize the overall business and fairly allocates risk/reward"
- "Focuses on insight, using governance mechanisms to manage the business with the supplier"
When I first talked to Kate and her colleagues about vested, I remember noting for her that the vested approach sounded like a specific type of relational contract . . . .
Recently, Kate and I reconnected. She informed me about her recent coauthored Harvard Business Review article. It merits promotion here.
The main point of the article is to highlight the possible advantages of relational contracting in the current environment. Here's the crux:
For procurement professionals at large multinational companies, the temptation is to use their company’s clout to pressure suppliers to reduce prices. And when the supplier has the upper hand, it is hard to resist the opportunity to impose price increases on customers. Witness how the shortage of personal protective equipment (PPE) and ventilators led to skyrocketing prices. . . .
A better alternative is formal relational contracts that are designed to keep the parties’ expectations continuously aligned. This kind of agreement is a legally enforceable written contract (hence “formal”) that puts the parties’ relationship above the specific points of the deal. The parties embrace the fact that all contracts are incomplete and can never cover all the contingencies that may occur. This time it is a pandemic. Next time it will be something else.
The coauthors conclude:
Given the uncertainty that lies ahead, it is especially important now that companies try to avoid antagonizing the members of their ecosystems. Formal relational contracts, which can turn adversarial relationships into mutually beneficial partnerships, is a proven means to such an end.
This all makes great sense to me, especially for contracting parties who have long-term relationships or are repeat players in the same market. The article both explains the concept and offers several examples of how relational contracting can foster more collaborative relationships that enable contracting parties to "ride the bumps" in their relationship. Specifically the parties are incentivized to work together to devise solutions to transactional problems as they arise.
The article reminded me about the relational aspects of M&A contracting and, more specifically, Cathy Hwang's Faux Contracts as well as her work with Matthew Jennejohn--including their Deal Structure article. In Deal Structure, Cathy and Matthew write that "[r]elational contracts blend formal contract terms, which are enforceable in court, with informal constraints, such as reputational sanctions, to create strong relationships between parties." [p. 311]
Law folks and business folks should talk more often. As the pandemic continues, parallel avenues of work like this in business and law can have important practical implications for business. This collective body of business and legal scholarship may have significant value to both business managers and the legal advisers who represent them. Collaboration between business and law experts can only enhance that value.