Understanding Behavioural Economics

Previously, I mentioned using Behavioural Economics as one technique to make sure that the Performance Management Framework (PMF) drives the desired behaviours.

For those of you who want more information on this fascinating topic, can I suggest a free online course via http://www.edx.org titled Behavioural Economics in Action from the University of Toronto.  While it is now only being offered via archive (i.e. you cannot get any university credits or certificates for completing it) it is an easily accessible way of getting an introduction into this field.

You can get access to the course via the following link https://www.edx.org/course/behavioural-economics-action-university-torontox-be101x#.VKxINIFXerU

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How Much is Enough?

When developing a Performance Based Contract (PBC) one of the questions consistently asked is, “so how much should be put at risk?”. Notwithstanding the fact that highly successful PBCs use a combination of both financial and non-financial rewards and remedies, this specific question simply refers to what percentage of the contract price is placed at risk based on seller (or contractor) performance.

The key here, like a lot of the elements in a Performance Management Framework (PMF), is the balance between:

the desire of the buyer to have sufficient money “at risk” to ensure the seller is motivated to perform, the classic sufficient “skin in the game”; vs.
the desire of the seller to limit their exposure to ensure their likely financial return is sufficient for the risk of delivering the outcome of the contract.

So in practicality what does this usually mean? In my observation what appears to be agreeable to both buyer and seller is only exposing the sellers profit to the PMF; that is, only the profit is “at risk”. This approach protects the sellers costs from the PMF while ensuring there is sufficient “skin in the game” with 100% of the profit at risk, since most seller don’t work for cost alone.

Importantly, too much at risk may result in either a seller solution that is unaffordable or an adversarial relationship between the parties. Alternatively, too little at risk may result in the seller not being motivated to deliver the buyers outcome. While I acknowledge there are a few highly successful PBCs that don’t follow this rule, in my observation they are exceptions rather than the rule.

Of note, in Australia, a 2012 High Court decision in Andrews v ANZ has implications on the application of the penalties doctrine to performance based contracts. Key points are as follows:

  • Abatements or deductions used in PBC may now be subject to the legal doctrine of penalties;
  • Abatements or deductions may be set aside if they are unconscionable having regard to the loss likely to be suffered or represent an extravagant attempt to secure a level of performance;
  • The buyer may have some protection in respect of certain types of loss that are extremely difficult, expensive and complex to calculate precisely, although this is unlikely to protect against amounts that are clearly unconscionable;
  • If the abatements or deductions are deemed to be a penalty, it is necessary to prove actual loss for breach of contract, which can be difficult for Defence applications which are measured in “capability effects”; and
  • The decision applies to existing and future contract, including those entered into prior to the date of the decision.

That said, in my opinion, it is unlikely that abatements or deductions equalling the level of profit on a contract would be deemed a penalty and set aside. Accordingly, in your specific application and legal jurisdiction, it may be worthwhile getting your local legal advisor to provide advice on your specific PMF. A full copy of the Australian judgement is available at http://www.austlii.edu.au/au/cases/cth/HCA/2012/30.html.

So where does this leave us? Noting that financial rewards and remedies are only one part of the PMF, in setting the amount at risk we need to be like Goldilocks in choosing her bed. It needs to balance the need to be big enough to motivate the seller to deliver and small enough to make the solution affordable and have a reasonable relationship. In other words, it needs to be “just right”.

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Averaging Performance Measures

During the development of a Performance Based Contract (PBC) one area that consistently trips people up is the concept of averaging.  Typically, performance measures take into account multiple timeframes (e.g. days in a month), multiple events in a time period (e.g. number of deliveries in a day) or even multiple events in multiple timeframes (e.g. a number of repairs in a single day, and then those days in a month).  So how do we take into account these multiples into a single number for payment to our contractor?

The default position of most practitioners reflects our education.  That is to use a simple mathematical average or mean of all the values. Here the equation is simply:

Average = total score for all events (or timeframe (e.g. days)) divided by number of events (or timeframe)

I refer to this approach as Input Averaging since it uses the Contractor’s input score to average. While this approach is easy to understand and simple to use, it does have a disadvantage; that is, depending on the payment curve (i.e. the relationship between performance and payment), this approach may mask poor performance by treating the value received by the buyer for all events equally.

Other simple approaches, although less common, base the final score on either the minimum or maximum input score over the events (or timeframe).  While it is simple to apply and easy to understand, what happens to the final score if the minimum score is delivered on the first day, what incentive is there for the contractor to deliver any better performance during the timeframe? Alternatively, if the maximum score is delivered on the first day, what incentive is there for the contractor to continue to deliver this level of performance during the timeframe? I refer to these approaches to averaging as either Minimum Averaging or Maximum Averaging.

The less common approach to averaging is to treat each event (or timeframe) against the payment curve. That is to calculate the payment for each event resulting in what I like to call Output Averaging. In this approach the final score is based on an average of the payments corresponding to each event or timeframe. I believe this approach is more representative of the average ‘value’ delivered to the buyer.  Unfortunately, this approach is more complex to apply including using to trigger other contract consequences such as Stop Payment or Termination where the average input payment levels are traditionally used.

To assist in understanding these differences consider the following example.  A contractor is to deliver a product to the buyer on-time, every-time.  The measure is simply the number of days late between the contracted delivery date and the actual delivery date.  In this case the relationship between performance and payment is represented as follows:

  • on-time (e.g. 0 days late) or less (e.g. early) results in 100% payment
  • 1 day late results in 75% payment
  • 2 days or greater results in 30% payment

So consider a single day with 3 deliveries, the first delivery being on-time (i.e. 0 days late), the second being 1 day late and the third being 2 days late.

Based on this example the Input Averaging approach would result in a final score of 1 day late based on the simple mathematical average of the delivery times (e.g. 0 days + 1 day + 2 days divided by 3 deliveries) resulting in an 75% payment.

The Minimum Averaging approach would result in an “average” of 0 days and 100% payment while the Maximum Averaging approach would result in an “average” of 2 days and 0% payment.

Alternatively, the Output Averaging approach would be the average of the payment score for each delivery in the day, in this case resulting in payment of 68.3% based on 100% + 75% + 30% divided by the 3 deliveries.

So how do you choose which is the best approach?  My thoughts are the choice should best balance the value received by the buyer with the simplicity of the approach.

That said, there are specific circumstances where you would combine the approaches. For example, you could use the Minimum / Maximum Averaging for a range of events (e.g. minimum quantities held by a contractor over a range of items or products) on a single day, but then use Input / Output Averaging for all days within a month. This approach provides a good balance of protection to the buyer and simplicity, but also fairness to the contractor

So in summary there are 4 types of averaging used in a PBC as follows:

  • simple mathematical average (input average)
  • payment averaging (output average)
  • minimum value
  • maximum value

Each approach has their own advantages and disadvantages that should be considered when developing your performance measure.

 

 

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So Why Use a PBC?

Extending on our simple description of Performance Based Contracting (PBC), a form of contracting that directly relates the delivery of the products or services to payment; we need to examine the 3 key differences between a PBC and traditional contracts:

  • PBCs are centred on the outcome of the work to be performed and emphasises objective, measurable performance requirements;
  • the Contracting Agency pays for results, not just efforts, as in the case of a typical “cost plus contract”; and
  • modification of the payment will be based on a comparison between achieved performance measured against the contractual requirement(s).

Simply put, PBC is about buying performance, not transactional goods and services, through an integrated acquisition and logistics process.  PBC is a strategy that places primary emphasis on optimising product support to meet the needs of the user; that is, the delivery of performance.  So a PBC:

  • delineates outcome performance goals of products,
  • ensures that responsibilities are assigned,
  • provides incentives for attaining these goals, and
  • facilitates the overall life-cycle management of system reliability, supportability, and total ownership costs.

A common question is while this sounds great in theory, what evidence is there that this has been a success for the Contracting Agency and Contractor?

This debate around the efficacy of PBC solutions, especially in the Defence contracting environment, has largely been reactive, opinion based and emotive.  In order to determine the validity of this the US Department of Defense (US DoD) commissioned a detailed study into the effectiveness of Performance Based Logistics (PBL).  The aim of the study, referred to Project Proof Point, was to provide independent, facts based assessment of PBL strategies and through assessment of real examples, provide conclusive evidence on the effectiveness and affordability of US PBL contracts.  It should be noted that the US DoD typically refers to a PBC as a PBL. See the resources, books and links page for a link to this article.

The results of the study highlighted that the benefits of broadly transitioning to PBL sustainment would result in:

  • 17 of 21 programs having improved performance and lowered cost over time; and
  • a conservative estimate of savings over the US DoD ranging from 10% to 20% every year.

The study also showed that to ensure the delivery of these benefits organisations must effectively manage the PBL over the whole contract lifecycle including:

  • development of the approach to market including selection of performance measures and incentives;
  • conduct of tender evaluation and negotiation; and
  • active contract management during contract execution (i.e. in-service).

A 2010 Study from The Wharton School and Yale School of Management indicated an improvement in product reliability of between 20 – 40 % can occur under a PBC, compared to a traditional arrangement. See the resources, books and links page for a link to this article.

Finally, I have recently observed a small Maintenance, Repair and Overhaul (MRO) contract between a federal government and a small contractor.  In this case, the overall performance management framework was correctly tailored to suit the simple contract outcome and resulted in 2 outcomes from the previous traditional contract:

  • a 16% improvement in contract outcome; and
  • a reduction in the government withhold of contractor payment from 6% to 1.6%

This result is clearly a beneficial outcome for both the Contracting Agency and Contractor.

That said, there are also many circumstances that did not result in benefits for a variety of reasons from the overall the improper application of a PBC (as opposed to a different contract style) through to the incorrect selection of a performance measure and/or performance level and finally inappropriate application of rewards and remedies.  In these circumstances, the incorrect application of a PBC can lead to all manner of poor outcomes from a reduction in performance to higher contract costs due to unreasonable contractor risks.

So if applied correctly, PBCs can result in benefits for both Contracting Agency and Contractor.  The key, and the topic for further entries, is how to achieve this!

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Defining a Performance Based Contracting (PBC)

While there are a range of definitions I have always used a very simple definition of a Performance Based Contract (PBC); a form of contracting that directly relates the delivery of the products or services to payment.  To do this, a PBC explicitly includes the following 3 characteristics within the contract:

  • clear definition of a series of objectives and performance measures to measure contractor performance;
  • methodology for the collection of data on the performance measures to assess the extent to which the contractors are successfully implementing the defined services; and
  • application of consequences for the contractor, such as provision of rewards or imposition of sanctions (remedies), dependent on contractor performance.

Rewards for superior performance can include additional contract term (sometimes referred to as Award Term), the provision of incentives, or public recognition such as annual supplier awards.  Remedies for poor-performance can include a range of financial consequences ranging from a reduction in payment due to non-performance, application of Liquidated Damages, through to Stop Payment and contract termination.

PBC is a deceptively simple concept which can be extremely difficult to deliver given the complexities and uncertainties which surround the practical application.

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The Why, the What and the How

As part of this blog I intend to cover the Why, the What and the How of Performance Based Contracting (PBC). So what do I mean by these 3 terms?

  • the Why – using this term I want to discuss why you would consider using a PBC and more importantly when you would not. Included in this will be a posts and discussion on both published research into PBC and personal (non-attributable) observations on the benefits (advantages) and costs (disadvantages) of this approach.
  • the What – using this term I want to discuss what you need to do from a process (strategic) view; the steps that need to be taken, some of a general considerations, etc. as opposed to the more tactical level (the How).
  • the How – using this terms I want to discuss the detailed (tactical) actions that need to be undertaken for your PBC to be successful. This includes posts and discussions on a range of alternatives for each topic and when they should be used based on the simple pros and cons of each approach.

So hopefully you’ll join me on this journey through PBC, and indeed I hope you’ll contribute to the discussion and add your own perspectives and experiences, since the more the merrier!

Regards
Jacko

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Welcome to the Performance Based Contracting (PBC) Blog!

Welcome to the Performance Based Contracting (PBC) Blog! My aim for this blog is to provide both people new to the field of PBC and experienced practitioners a variety of useful information and a forum to openly discuss this fascinating topic.

Through this blog I am trying to create a not-for-profit PBC Community of Practice (PBC CoP) to help advance this field. Importantly, this blog is not about marketing you a paid service or training course, getting a high page ranking or collecting email addresses for on-selling.

My intention is to provide fortnightly posts (that’s once every 2 weeks!) although I will check for comments on a more regular basis.

I hope you enjoy it and find it useful.

Regards
Jacko

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