Consulting Agreements from Negotiation to Execution

There are many situations in which your business may need to work with consultants. It could be to solve a problem you’re facing, to collaborate on a project, or to develop a strategy to jump ahead to the next level of growth. Your consulting agreements set the framework for your business relationships, so you need to pay close attention to them.

Like every business contract, your consulting agreements may expose your business to contractual risks. However, an efficient contract management process can minimize these risks and maximize the value you get from working with consultants.

From negotiation to execution, there are important points to keep in mind at every stage to improve your contracting efficiency.

The negotiation stage is usually the longest because it’s when each party agrees on the different aspects of the consulting partnership. Previously, legacy tools made contract negotiations a painful process. Fortunately, contract lifecycle management (CLM) software has made it a more collaborative and streamlined process. Here are some key things to pay attention to at this stage.

Developing an agenda

A well-structured agenda will help guide you throughout the negotiations. Identify common interests, set clear expectations, determine priorities, establish deadlines, outline negotiation tactics, and define team roles and responsibilities. This structured approach ensures the negotiations remain focused and efficient.

Understanding each party’s objectives

Dive deep into the goals, interests, needs, pain points, and motives of the consultants and their stakeholders. This knowledge will help you find common ground and arrive at a win-win situation.

Bargaining

Negotiations are an intricate dance of offers, counteroffers, and compromises. Successful negotiations require you to present your offers clearly, discuss potential solutions openly, and make concessions when necessary. CLM software can help carry everyone along while documenting all communications. It also provides a trusted record you can refer to if there’s any disagreement.

Your consulting agreement should contain these key terms:

• Scope of work: Clearly define the scope of the project or services you expect from the consultant. Be as specific as possible about the deliverables, deadlines, and milestones. This ensures everyone is on the same page.
• Payment terms: Specify the compensation structure. Describe the consulting fee, the payment schedule, and any additional expenses you’re willing to cover, such as travel costs or materials.
• Non-compete and non-solicitation: This prevents the consultant from competing with your company during and after the project. Also, a non-solicitation clause can help prohibit the consultant from poaching your employees and clients.
• Confidentiality: Use a confidentiality clause to bar the consultant from divulging any sensitive business information you share with them.
• Intellectual property: Address ownership of intellectual property created during the consulting project. Typically, you’ll want to ensure your organization retains the rights to any work or innovations developed under the agreement.
• Termination: Clearly state the start and end dates of the consulting agreement. Include grounds for termination and notice periods. This provides a timeline for your project and safeguards both parties’ interests.
• Insurance: Specify whether the consultant is required to have professional liability insurance and, if so, the minimum coverage required. This ensures they have the financial means to address any potential mishaps.
• Indemnification: Clearly state who is liable for any legal issues that may arise during the consulting project. This protects both your organization and the consultant.
• Dispute resolution: State how you’ll resolve any disputes. You may opt for mediation or arbitration instead of litigation.
• Governing laws: Establish which state or country’s laws will govern the agreement. This is important, especially if your consultant is based in a different jurisdiction.

Sometimes, the project may not go as you expected, but you can take the following actions ahead of time to identify and reduce potential risks that could impact the success of the consulting project:

• Scope creep: The project’s scope may expand beyond what’s contained in the agreement, leading to increased costs and delays. Prevention: Clearly define the project scope in the consulting agreement. Specify in your project plan what is and isn’t included. Ensure that your consulting agreement prohibits the consultant from delving into new project components without approval.
• Quality of work: The consultant may not deliver the quality of work you expect, leading to dissatisfaction and sometimes requiring you to hire another consultant. Prevention: Outline your expectations for deliverables and quality standards in the consulting contract. You can also include performance metrics and benchmarks or structure the project to have interim deliverables that allow you to assess the quality of the work early on.
• Cost overruns: Project costs may exceed your expectations, and you may be billed for components you weren’t expecting. Prevention: Structure your contract to focus on the results or set it up to accommodate milestone payments.
• Conflict of interest: The consultant may have a conflict of interest with your project. For instance, they may represent competitors or have a personal interest in the project’s outcome. Prevention: Include a contract clause requiring the consultant to disclose any existing or potential conflicts of interest. Review any conflict of interest and take steps to protect your business.
• Bait-and-switch: Sometimes, consultants may present themselves or another key contact as the person you’ll be working with but then send you a less experienced staff after you sign the agreement. Prevention: You can include terms in the contract to prevent a bait-and-switch and guarantee access to vital talent.

You need to be sure the consultant complies with all applicable regulations, especially if your organization operates in a highly regulated industry. Here are some safeguards you can put in place.

Screen the consultant

Go over the consultant’s qualifications, experience, and references and confirm that they have a track record of complying with relevant laws and regulations in your industry.

You may contact previous clients or employees and inquire about the consultant’s compliance with regulations. If you’re planning to give the consultant substantial access to your organization’s operations, you may also want to run a background check on them.

Verify their certifications

If the project requires any licenses, certifications, or qualifications, confirm that the consultant meets the mark.

Include protective clauses

You can include special terms to ensure the consultant complies with the rules. Some examples include:

• A clause specifically mandating that the consultant complies with all applicable laws and regulations
• A clause specifying how the consultant will report and provide updates
• A provision that allows you to run compliance audits periodically

It’s time for both parties to sign the agreement to make it legally binding. There are many ways to sign a contract, so you should first determine the most appropriate way to execute your agreement. Then, identify the person who has the authority to sign on behalf of each party involved. Ensure everyone who signs has the legal capacity to bind themselves or their business.

As you launch the project, here are some simple things you can do to improve your chances of success:

• Establish communication channels and hold regular check-in meetings.
• Monitor progress, address issues promptly, and provide feedback.
• Evaluate the project’s results against your initial goals.
• Document all project-related materials.

Remember, you have a goal, a reason you hired the consultant. At this point, your aim is to achieve that goal and secure a return on your investment.

Here are a couple of ways to monitor consultant performance:

• Determine your key performance indicators (KPIs): Depending on your objective, determine the KPIs that will affect your bottom line. Note that these will often be unique to your organization and will be influenced by your reason for hiring the consultant in the first place.
• Get reports: Collect reports to measure the consultant’s productivity. Find out whether the consultant is ahead of or behind schedule, whether they’re making progress as planned, and how many tasks they’ve completed.

Despite your best efforts to prevent issues from arising out of the consulting arrangement, things may not always go as you expect. And sometimes, it may not be anybody’s fault.

As much as possible, you need to be prepared for any changes or disputes that may come up:

• Understand the terms of the agreement: It’s easy to default if the terms of your consulting agreements are not clear to you.
• Keep your communication channels open: Effective communication can help prevent misunderstanding and delays while fostering trust between all parties involved.
• Negotiate changes: If an unforeseen change occurs, be willing to renegotiate fairly and reasonably. Ensure you document any change to the agreement and update the contract accordingly.

Consulting agreements are essential to business partnerships, but they can come with contractual risks. CLM software helps simplify the process while reducing these risks.

You can use a technology-driven, AI-powered platform to handle the entire lifecycle of your consulting agreements, from negotiation and creation to execution and performance monitoring.