Clarkslegal LLP - Solicitors in Reading and London

Outsourcing & Supply Chain

Our outsourcing team draws experience from the commercial and procurement teams within the firm, with support from other disciplines (such as employment) as required. The team brings together legal expertise relevant to the outsourcing process to give a seamless service both to companies outsourcing services and also to the providers of those services.

Our advice is always practical and focuses on ensuring that clients can achieve their commercial objectives whilst managing risk and building long term relationships with their suppliers, or those they supply. The in house experience of a number of our team members ensures that we understand what makes our clients tick.

We can provide advice and support across every stage of the process.

The aim of any outsourcing process is to run an open, competitive process which delivers the client’s commercial objectives within the desired timeframes and budget and with an agreed and acceptable risk profile. Planning is key. We can assist clients in preparing their outsourcing strategy (including key drivers, risk management and realistic timeframes) which will inform the process and enable the client to manage its internal and external resource more efficiently and effectively.

We help clients inform their outsourcing strategies by looking at all relevant factors including:

  • The commercial objective behind the outsourcing.
  • Service delivery and KPIs (including any issues with existing contracts).
  • Price and budget.
  • Key timescales – and their link to commercial outcomes.
  • Duration and flexibility of the contract.
  • Market knowledge and market testing, and
  • Business resourcing.
When working for a supplier client, similar themes arise with planning being a key part of any effective response to a tender process.

An essential part of any major outsourcing project is communication both within the client organisation and between the supplier/customer. Clear unequivocal communication, that is accurate and which the client entity stands behind, helps to enhance the trust and confidence which is required for a successful outcome. We can assist in advising on appropriate communication protocols both within a client organisation, and with the other party. We can also assist in establishing or managing secure sites for document management.

We will help you identify the controls required in the context of circulating legal advice to ensure that advice provided by us attracts legal professional privilege.

Notifying suppliers early on in the process of any key terms or “must haves” gives suppliers the chance to properly tailor their response to any request for a proposal and ensure that the commercial and financial offering meets the requirements of the bid. It also enables those running the process to properly manage the financial and commercial expectations of the business. We can advise on the form and content of the contractual documents, including availability of particular conditions in the market.

With our experience across a variety of sectors (including IT outsourcing) we can provide realistic advice on the contract structure and its terms at an early stage of the process to assist in managing the expectations of both the business and the suppliers.

Our support to supplier clients involves a realistic assessment of the proposed terms of any contract and its impact on their bid offering.

We work closely with our clients to ensure the risks of outsourcing services, or providing outsourced services are identified at the earliest stage, and properly managed. The majority of our team members have contentious experience, and have worked in house, and they are therefore well placed to manage risks and advise and draft to minimise or avoid such risks.

On large scale outsourcing projects we find it helpful to prepare a risk matrix which sets out headline risks associated with a contract. This facilitates discussions between the parties and enables particular risks to be allocated to the most appropriate party. A risk free contract for either party is rarely the right (or most affordable solution) and unlikely to be available in the market. The most cost effective contract will be the one where the risks are proactively managed by the party best placed to deal with them.

We can provide a risk report that can be presented at board level (as well as present to the Board if requested) and can help to keep risks under regular review.
Intellectual Property is a key feature in many outsourcing projects – particularly where any development or configuration work is undertaken by the supplier, specific to its customer’s needs. In this fast moving electronic age, ownership and use of data is also a key issue. We help our clients protect their IP and, when appropriate, advise on the best ways to commercially exploit their IP assets. Our team of highly specialised advisors set their advice in the business context to ensure that it is practical and achievable.

A key issue of any outsourcing (or insourcing) of services is the potential impact of the Transfer of Undertakings Regulations (TUPE). We regularly advise on the implications of TUPE related matters, managing the consultation processes and protective award risks, as well as limiting risks through the drafting of warranties and indemnities.

We appreciate that TUPE can be difficult process for those having to manage it, particularly in light of the expectations of those affected, and we can tailor our support to be practical, clear and jargon free.

Once a preferred supplier is identified, contract negotiations usually become the focus of any outsourcing project. We recommend that the client team involves those who will implement and run the contract and our experienced team of lawyers can advise and support you in negotiating the terms, both in person and in writing. We provide clear, constructive advice which assists in closing down outstanding points, and enables you to begin your relationship with the other party on the right footing.

Our continued risk analysis and management ensures that the negotiations do not bring any nasty surprises, and allows our clients to assess risks that cannot be closed out and take a pragmatic and practical approach to their allocation.

We continue to support our clients post contract signature during implementation and beyond. We offer a workshop (supported by a handy guide) on the key terms in any major contract to those who will implement and run the contract.  

The strength of the relationship between the contracting parties is the key to its success, and a clear well understood contract supports and empowers that relationship. We assist our clients by ensuring that those of its team who live with it, day to day, understand its terms, can work within its framework and know when to update it to reflect changes in the working relationship between the parties.

We also advise on how to effect changes in line with the terms of the contract and beyond, as well as assisting in dispute avoidance and management.