Business Process Outsourcing

John K. Halvey is a partner in the New York office of the international law firm of Milbank, Tweed, Hadley, & McCloy, LLP and the founder of the Strategic Sourcing and Technology Group. He practices in all areas of technology and sourcing law, with particular emphasis on information technology and business process outsourcing and private equity transactions involving technology or sourcing companies. Mr. Halvey has represented companies in many of the largest technology, telecommunications, and business processing outsourcing transactions, including Deutsche Bank, JP Morgan, BellSouth, Panasonic, Citigroup, DuPont, AT&T, Alcatel, Xerox, Boeing, Bombardier, General Atlantic and the Commonwealth Bank of Australia. His work in these areas has been the subject of articles in Forbes, Information Week, Computer World, CIO Magazine, The Daily Deal, and Venture Capital Journal. Mr. Halvey has for many years been ranked by Chambers and Partners as one of the world’s leading information technology and outsourcing lawyers and was the only lawyer in the United States to be ranked a "Star Performer" in the outsourcing industry in both 2005 and 2006. In 2006 Mr. Halvey received the Chambers Shield of Excellence as the Outsourcing Attorney of the Year and as the HR Outsourcing Attorney of the Year by the HROA. In 1995 Crain’s named Mr. Halvey on its list of the 40 most successful people under 40 in New York City. He is the coauthor of Information Technology Outsourcing Transactions: Process, Strategies, and Contracts (John Wiley & Sons, 2005). Barbara M. Melby is a partner in the Global Outsourcing Group at Morgan, Lewis & Bockius, LLP. Ms. Melby’s practice focuses primarily on outsourcing transactions, including information technology and business process outsourcing, as well as other technology-related transactions, including development agreements, system implementation agreements, licensing and hosting agreements, technology services, joint ventures, and strategic alliances. One of the leading outsourcing attorneys in the United States, Ms. Melby is the coauthor of Information Technology Outsourcing: Process, Strategies, and Contracts (John Wiley & Sons, 2005). She was recently recognized by Chambers USA as one of the nation’s leading lawyers for Business Process Outsourcing. In addition to her two books, she has written numerous articles in and has been widely quoted in a wide variety of publications, including CIO Magazine, IT World, The Metropolitan Corporate Counsel, and The Pennsylvania Lawyer. Ms. Melby is also a frequent speaker on outsourcing and technology transactions at various business, legal, and professional conferences.

ABOUT THE WEB SITE. ABOUT THE AUTHORS.

PREFACE.

CHAPTER 1: OVERVIEW.

1.1 The Emerging Market.

1.2 What Is BPO?

1.3 BPO Categories.

1.4 Reasons for Outsourcing Business Processes.

1.5 Integration: Making BPO Fit.

1.6 BPO Vendors.

CHAPTER 2: PLANNING STAGE.

2.1 Outsourcing as an Option.

2.2 Defining the Scope of the Transaction.

2.3 Selecting a Group of Potential Vendors.

2.4 Request for Proposal.

Appendix 2.1 Nondisclosure Agreement.

Appendix 2.2 Questionnaire for Assessing Legal Resources Required.

Appendix 2.3 Questionnaire for Assessing Legal Resources Required (Vendor Form).

Appendix 2.4 Request for Information.

Appendix 2.5 Request for Proposal.

CHAPTER 3: SELECTING THE VENDOR.

3.1 Evaluating the Proposals.

3.2 Notifying the Preferred Vendor(s).

Appendix 3.1 Evaluation of Vendor Proposals Relating to the Provision of BPO Services.

Appendix 3.2 Letter of Intent (Customer Form).

Appendix 3.3 Letter of Intent (Vendor Form).

CHAPTER 4: NEGOTIATIONS: STRATEGY AND PROCESS.

4.1 Forging the Legal Relationship.

4.2 Negotiating Process.

4.3 Exposure Analysis.

4.4 People Negotiate, Not Companies.

4.5 Negotiating Strategy.

Appendix 4.1 Due Diligence Agreement.

Appendix 4.2 Model Term Sheet.

Appendix 4.3 Legal Due Diligence Checklist.

Appendix 4.4 Issues Arising in Connection with Implementing a Shared Services Center.

CHAPTER 5: BUSINESS PROCESS OUTSOURCING CONTRACT.

5.1 Overview.

5.2 Use of Attorneys.

5.3 Key Contract Issues.

5.4 Regaining Strategic Control.

5.5 Pricing Considerations.

5.6 Assembling the Team.

Appendix 5.1 Checklist: Key Issues in BPO Agreements (General).

Appendix 5.2 Checklist: Key Issues in HRO Agreements.

Appendix 5.3 Checklist: Key Issues in F&A Outsourcing Agreements.

Appendix 5.4 Checklist: Key Issues in Procurement Outsourcing Agreements.

Appendix 5.5 Checklist: Key Issues in Logistics and Warehouse Management Outsourcing Agreements.

Appendix 5.6 Business Process Outsourcing Agreement (Customer Form).

Appendix 5.7 Business Process Outsourcing Agreement (Vendor Form).

Appendix 5.7A A Proprietary Rights Rider (Vendor Form).

Appendix 5.8 COLA Checklist.

Appendix 5.9 Joint Management Procedures.

CHAPTER 6: MEASURING PERFORMANCE.

6.1 Overview.

6.2 Service Levels.

6.3 Benchmarking.

Appendix 6.1 Customer Satisfaction Survey Checklist.

Appendix 6.2 List of Reports.

CHAPTER 7: HUMAN RESOURCES.

7.1 Transitioning Employees to the Vendor.

7.2 Due Diligence.

7.3 Terms and Conditions of Employment.

7.4 Transitioning Employees from Customer to Vendor.

7.5 Human Resources Representatives.

7.6 Contract-Related Issues.

Appendix 7.1 Stay Incentives.

Appendix 7.2 Human Resources Sample Language for the Request for Proposal.

Appendix 7.3 Human Resources: Sample Terms and Conditions for Employee Transition in the United States.

Appendix 7.4 Employee Confidentiality Agreement.

CHAPTER 8: TRANSFORMATIONAL OUTSOURCING.

8.1 Moving from A to C.

8.2 Internal Considerations.

8.3 Project Definition.

8.4 Maintaining Multiple Environments.

8.5 Using Subcontractors.

8.6 Key Contract Provisions.

CHAPTER 9: INTERNATIONAL CONSIDERATIONS.

9.1 International Transactions.

9.2 Contract and Legal Issues.

Appendix 9.1 Checklist: Key Issues in Global BPO Transactions.

Appendix 9.2 Offshore Checklist.

Appendix 9.3 Local Counsel Questionnaire.

CHAPTER 10: INFORMATION PRIVACY AND SECURITY ISSUES.

10.1 Introduction.

10.2 Selected Information Privacy Laws.

10.3 Selected Information Security Laws.

10.4 Company Privacy Policies.

10.5 Global Issues.

10.6 Offshore Outsourcing.

10.7 Practice Tips.

Appendix 10.1 Data Privacy Questionnaire for Proposed Outsourcing Transaction.

CHAPTER 11: EXHIBITS AND ANCILLARY AGREEMENTS.

11.1 A Critical Part of the BPO Contract.

11.2 Exhibit Listings.

11.3 Checklists for the Exhibits.

11.4 Ancillary Agreements.

Appendix 11.1 General Assignment and Bill of Sale.

Appendix 11.2 Teaming Agreement.

Appendix 11.3 Legal Checklist for ASPs.

Appendix 11.4 Legal Due Diligence Checklist for Companies Transacting with ASPs.

Appendix 11.5 Business Continuity Issues for Customers to Consider When Evaluating an Application Service Provider.

CHAPTER 12: POSTNEGOTIATION ACTIVITIES.

12.1 Contract Signing.

12.2 Press Release.

12.3 Autopsy.

12.4 Risk Analysis.

12.5 Contract Administration.

12.6 Implementing the Transition Plan.

12.7 Notifying Third Parties.

Appendix 12.1 Consent Letter.

Appendix 12.2 Consent Letter (Access/Installation).

CHAPTER 13: RENEGOTIATION AND TERMINATION.

13.1 Overview.

13.2 Renegotiation/Termination Process.

13.3 What Does the Contract Say?

13.4 Additional Issues to Consider.

13.5 Termination Plan.

Appendix 13.1 Customer Checklist for Renegotiating/ Terminating BPO Transactions.

Appendix 13.2 Due Diligence Checklist for Customers Considering Termination.

Appendix 13.3 Termination Agreement.

Appendix 13.4 Outline of a Termination Assistance Services Agreement.

INDEX.