Quality is one of the most important factors for companies in the relationship between suppliers and customers (Ackerman, 2007). It requires integration of processes and data harmonization in a complex, global environment. Critical processes and strong relationships develop mutually beneficial outcomes, trust, strength and competitive advantage. We live in a time where globalization has forced industries to adopt cost efficiency strategies in order to compete. Top-line spend is being scrutinized and the legal industry is no exception to the new normal. In 2012, more than 25% of companies in the U.S. and UK spent over $5 million annually on litigation costs, and among healthcare companies that proportion was estimated to be 30%–40% (Gardner, H., & Silverstein, 2016).
Because professional services have become such a prominent cost of business, executive leadership has pressured the supply chain function to enhance the efficiency of spending. Professional services like legal counsel have historically been defined as too complex to transition to alternative billing arrangements that were ordinarily reserved for predictable, simple items. Complex legal services hinge on quality and explicit expertise that are determined on a case-by-case basis.
This case study examines an organization’s process for introducing competition and alternative billing arrangements for complex professional services using innovative sourcing techniques and Six Sigma methodology to monitor and control performance. The goal of this analysis is to: 1) evaluate alternative sourcing and the utilization of reverse auctions, 2) examine the successes and gaps of the GlaxoSmithKline (GSK) sourcing and procurement model for legal services, 3) determine if the GSK model can be applied towards other complex services, and 4) recommend improvements using the case study of GlaxoSmithKline: Sourcing Complex Professional Services (Gardner, H., & Silverstein, 2016).
In recent years, the legal industry has experienced a global paradigm shift in the delivery model for legal services (Kane, 2017). This includes a consolidation among law firms, change in size, culture, and regulatory policies that encourage more competition and new entrants. While legal expertise is a necessary expense of organizations, it is historically viewed as a cost center. The 2008 economic downturn created additional competition among law firms as pressure to reduce costs increased and inadvertently diminished client loyalty. As described in the business case, “the size of the legal services market in the U.S. had increased by 4%–5% annually in the years preceding the economic crisis, it contracted by 3% in 2009” (Gardner & Silverstein, 2016).
In September 2008, the GSK law department appointed a new General Counsel who was a proponent of change and believed that the hourly-rate billing system inherently promotes inefficiency. His goal was simple: to reduce costs while increasing quality and value creation. The department’s focus scaled to include a Global External Legal Relations Team (GELRT) and an Outside Counsel Selection Initiative (OCSI). GELRT moved over three-fifths of outside counsel assignment to value-based fees (VBF) which is an incentive based payment structure that encourages integrity and six sigma efficiency in billing monitored and controlled through defined KPIs. Within 2 years it achieved a savings of nine figures (Silverstein, 2014). The over-arching message was that “if firms are willing to put some ‘skin in the game’ to help us meet cost savings goals” they should be rewarded with the value they provide to GSK (Salopek, 2012).
The focus of OCSI was to leverage best practice in e-Sourcing and Procurement using an e-reverse auction program. Based on case-specific criteria, GSK uses a mini-RFI tool that allows it to view an outside firm’s qualifications for the intended case. GSK Legal can then aggregate KPIs to ascertain the firms’ quality as well as their ability to adhere to VBFs. Additionally, the OCSI reverse auction process or “Sourcing Room,” attempts to neutralize aggressive fee competition among the qualified law firms by elevating value creation and fit per case assignment (Salopek, 2012).
In the context of this analysis, GSK has been served with a complaint wherein “A patient, Catherine Whitmore, died of an aortic aneurysm while on our blood pressure medication,” and the responsive pleading is due in just 20 days; an extension allowing more time to prepare a response is unlikely (Gardner & Silverstein, 2016). A recently hired attorney must act quickly and within the defined processes adopted by GSK including preparing for a reverse online-auction as part of the OCSI process. Throughout the case and while awaiting responses from the “Sourcing Room”, she questions the purpose, process, integrity, and intended outcomes of GSK’s way of working:
“This system reminds me of buying office supplies or landscaping services. Can it really be applied to a complex legal case like this one? Why can’t we just engage the same firm that we worked with last time? Why would this new system encourage firms to use their best lawyers and ask for less? How could law firms suddenly afford to devote more work from their top brass for less money? Where would all of these savings come from? Even if the reverse-auction system saves money, we are paying it back in increased risk as we sit on our hands and watch our response date inch closer. I thought I’d return as the hero who doles out work, not the villain who pushed the legal industry into online bidding wars.”
The fundamental questions that must be answered are: 1) does the reverse auction system reduce costs while ensuring quality, 2) what are the risks in using reverse auctions for sourcing and procuring professional services, and 3) can reverse auctions be applied to complex legal cases and yield successful outcomes? To better understand the framework of reverse auctions, the impact of compensation models on cost savings will be examined. This includes the impact on supplier relationships and how GSK’s processes may be applied to other complex services.
- Competitive Pressure
The legal industry presents complexities in procurement requiring sophisticated coordination of suppliers based on specialized criteria. Competitive pressures are forcing traditional law firms and corporate legal departments to minimize costs, increase flexibility and expand their in-house capabilities. Participation in legal process outsourcing (LPO) has become vital to controlling costs (Kane, 2017). It transfers the work of attorneys, paralegals and other legal professionals to external suppliers, both onshore and offshore. Therefore, “supplier and customer relationship management processes can enhance or inhibit competition” (Sadikoglu, 2014). Using a more agile e-sourcing and procurement strategy, GSK has achieved price advantages by leveraging a Six Sigma approach to managing costs and quality, and using alternative fee agreements, reverse auctions, and VBF to form value-add partnerships. Within lean constraints and a “buyers market”, GSK must quickly respond to changing market needs with no room for error. Overall efficiency increases because “each firm in the supply chain can maximize its competitive advantage through strategically focused resource allocation” (Christopher, 2011). Lastly, competitive pressure introduces a need for increased awareness and intelligent, real-time information flow.
- Operational Pressure
The aforementioned process coordination of procuring firms with highly specialized areas of expertise adds a layer of complexity that makes quality and cost control more difficult. In a time-sensitive environment, using a reverse auction process may contradict the need for greater speed and efficiency. GSK must support powerful mobile devices, software-as-a service, and secure, web-based technology to facilitate its way of working and global infrastructure. Advanced communication solutions that align with the “virtual firm” are becoming increasingly necessary in the legal market (Gehrke, 2007). The efficiency of process management emphasizes activities not results, where “proactive approaches to quality management to reduce variations in the process and improve the quality of the product” comes with a cost (Littlefield, 2012). Balancing the costs of operational efficiency can create pressures for GSK in obtaining quality legal services.
- Financial Pressure
The stability of the Pharmaceutical Industry and Financial Institutions can affect the financial health of GSK and its supply chain. Competing in a global environment has forced many companies to closely monitor their suppliers’ economic viability (Littlefield, 2012). GSK depends on timely responsiveness and counsel from suppliers. If in the event firm deadlines are missed due to disruption, GSK is left vulnerable.
Additionally, GSK faces pressure not only to reduce costs, but it must transform the perception of a corporate legal department from a cost center to value-add activity. As the cost of legal services continues to rise, GSK faces pressure to innovate legal delivery models, while closely monitoring their efficiency. Utilizing e-sourcing and reverse auction techniques can provide “higher cost efficiency, larger scale, and possibly lower financial costs such as borrowing costs and tax rates” (Fishell, 2012). However, setup and ongoing costs, any skilled labor costs, and the total costs of quality and risks should be considered, which may increase GSK’s total costs for legal services.
- Regulatory & Ethical Pressures
“Domestic law firms are expanding across borders, collaborating with foreign counsel and forming intercontinental mergers, erasing traditional boundaries on the geographic scope of law practice” (Kane, 2017). Technology and globalization are disrupting the speed at which automation of legal processes and emerging e-sourcing and procurement tools are being adopted to remain competitive. This exposes GSK to a broader Regulation of the Pharmaceutical Industry and legal sector, including quality and safety, ultimately increasing pressure for the company. As referenced in the case, “new governmental policies favoring deregulation and liberalization, such as the Legal Services Act 2007 in the UK, encouraged more competition in the legal market and provided a new route for consumer complaints about lawyers” (Gardner & Silverstein, 2016). GSK faces ethical pressure by engaging in foreign territories with suppliers that may have differing business practices. Moreover, GSK must have full-disclosure of possible defects in its products, some of which may be unknown at the time of release. The catalyst for the complaint in this case is the possibility that a GSK product contributed or caused a patient’s death. While GSK can use legal contracts to try and shield itself from any financial liability due to product implied guarantees or misuse, it still has a regulatory and ethical obligation to ensure product conformance to protect human life including all costs associated with auditing, monitoring, and ensuring product quality compliance
A critical component of GSK’s success not only lies in its processes and use of DMAIC, but in its creation of a framework in which institutional change can thrive. This takes leadership, vision, structure, and engagement. Despite the assurance from GSK staff that the OCSI approach drives down costs and improves the quality of work by systematically increasing the rigor in the procurement process, the new attorney insisted on analyzing and comparing the competing firms’ bids. Her uncertainty speaks to the critical issues in this case: 1) organizational leadership in institutional change, 2) the utilization of reverse auctions in complex services, and 3) qualitative analysis of cost savings, supplier value, and risks.
Leadership is a critical component of Sourcing & Procurement because it influences, directs, and manages the resources of a supply chain, ultimately impacting a firm’s profitability. The problem for many organizations is that procurement is often perceived as a tactical function rather than a strategic function. For example, even in the P2P process, procurement professionals begin sourcing after a need has been identified. As quoted by GSK’s new General Counsel in 2008, “Before I came to GSK, legal spend had not been managed centrally, and individual lawyers responsible for the matters often didn’t have budgets. The firms often knew more about what GSK spent with them than GSK knew about what it spent at the firms, so GSK was not leveraging its spending power” (Gardner & Silverstein, 2016). The transformation of how professional services were managed involved detailed planning and managing through process and KPIs. Resistance to change can make it difficult for organizations to adopt new strategies such as redesigning work processes, adopting new organizational reporting structures or establishing new pricing strategies. In addition, many firms are set in the “we’ve always done it that way” mentality that inhibits creative alternatives to procuring professional services.
In the context of sourcing and procuring professional services, the GSK model for strategic action and leadership involved promoting a vision, setting strategies, defining goals, providing direction, and adopting a Six Sigma approach to performance management. A scorecard was thoughtfully crafted for each matter, weighting key firm selection factors including matter-specific credentials, experience in jurisdiction, along with pricing (Salopek, 2012). GSK’s e-reverse auctions involve a competitive bidding process where multiple law firms compete for the same project. This can drive price competition for large-scale legal projects such as mergers and tax filings. While there are risks of collusion and price tampering amongst competing firms, the over-arching mantra is that if the prices are expected to be lower, then firms “need to be increasingly savvy with their resources in order to compete” (Clarke, 2015). GSK viewed reverse auctions as an opportunity to create value and govern productive partnerships, not focus just on price which is seldom representative of total cost. The lowest bid was not always selected (Salopek, 2012).
e-Reverse auctions can be used to source and procure any complex professional service. It takes leadership (aforementioned), framework and process, and robust analytics. Using the GSK model, the RFI tool provided conditions around expertise and quality performance, where suppliers derived clear scope to propose solutions to an expected and known end result. When coupled with performance measures to help drive delivery value, satisfaction, and opportunities for improvement, these internal control mechanisms – by design- minimized mistakes, promoted sound decision making backed by data, and rewarded good performance both within and outside the organization (C.I.P.S., 2017).
By the end of 2011, more than 68 percent of GSK’s external spend was through VBFs, resulting in major savings. “One reason for this success was Dan Troy’s <new General Counsel> tone from the top,” (Salopek, 2012). He backed his VBF directive by connecting the annual bonus objectives of law department personnel to GELRT’s quantifiable cost savings. He also participated in global broadcasts to the Law Department communicating progress toward goals. This level of engagement was crucial to OCSI’s success, where the willing participation of all parties was needed in the e-reverse auction process. Since its launch, 57 OCSI events have been completed to date, resulting in total estimated savings of over $32.6 million when the winning firm’s budget (based on hourly rates) is compared to its final VBF offer, and over $21 million in savings when the winning firm’s initial VBF offer in the Sourcing Room is compared to its final VBF offer. These savings are a subset of overall, even more substantial VBF savings” (Salopek, 2012).
While the qualitative analysis of cost savings appears favorable, one must consider the supplier value and risks in using reverse auctions. The two most commonly voiced criticisms directed against reverse auctions are that they do not support strategic goals and do not encourage long-term supplier engagement. In fact, many might argue that suppliers do not like them. Typically, reverse auctions are designed for routine or predictable purchases that “feature little collaboration, shorter term contracts, products with common specifications and little complexity, and purchases where there are savings opportunities” (Gehrke, 2007). Some view reverse auctions as transactional in nature and, contrary to GSK’s mindset, highly focused on obtaining favorable pricing where “strategic relationships with suppliers rarely meet these criteria” (Clarke, 2015). However, at some point, particularly in the search for specific know-how and execution, price will cluster and a baseline will emerge. If consistent pricing at market-value is assumed, I’d offer that reverse auctions are the perfect forum to steer focus toward expertise and value-add services. This would, for all intents and purposes, be the perfect marriage for e-sourcing complex services.
This case illustrates a deep-seated challenge for procurement departments: how to strike the subtle balance between quality, cost and managing complexity. GSK considered new ways to generate efficiency by integrating leadership, DfSS processes and rigorous control systems, and by improving the way it leads interaction with global suppliers and trading partners. GSK’s integrated processes ensure quality specifications are met on a per-case basis. With active management, it can assume best practice processes and guarantee a process control system (measure, analyze, improve, monitor, control) and favorable outcomes based on a proven track-record.
Communication and connectivity are a vital component of its strategy. A challenge specific to GSK’s legal department is to maintain its success through the necessary conduit of infrastructure…SRM, CRM, voice, data centers, and connectivity. Before GSK makes this investment, I’d recommend prioritizing where the highest percentage of interaction takes place and where a solution can have impact across multiple areas (cost savings, revenue growth, and increased productivity). For example, GSK can consume communications services on a utility pricing model or proven lower TCO with leasing, deferring a pricey capital investment. This would provide scalability and faster expansion of infrastructure as needed and give GSK advanced communication technology to sustain competitiveness.
GSK leadership should continue to support initiatives with its suppliers that promote teamwork, close internal communication, and developing a cooperative culture that fosters trust and collaboration. As supply chain complexity and off-shore outsourcing continues to increase, the need for visibility will require even more enhanced collaboration and real-time data to measure GSK’s performance. This may be difficult for GSK to achieve because relationships, particularly across global and cultural boundaries, are the most difficult to manage (Fishell, 2012).
Lastly, I’d recommend GSK scale its methodology for all professional services. It should continue to embody procurement best practice as described by the Chartered Institute for Purchasing & Supply where, “The supplier-buyer relationship between supply chain members requires that quality start at the top. That is, it is imperative that company visions, goals and strategies be aligned for the betterment of both companies. Joint projects, shared technology, buyer-supplier councils, and collaborative relationships can enhance the relationship. The end result is a culture of continuous improvement throughout the supply chain, and as a result, a highly effective, competitive one.” (C.I.P.S., 2007)
The sourcing and procurement of complex professional services continues to be an on-going area of development for many organizations. Evolving market demands, the shifting legal marketplace, deregulation, and cost reduction are all contributing to the need for innovative solutions in a digitized world. With increased competition across the legal landscape, utilizing e-reverse auctions is a way to achieve cost savings, but not at the expense of service and value differentiation. In this fair forum, clients like GSK are empowered with the pricing of legal matters, where previously these decisions were dictated by law firms. Just like globalization of other goods and services, “a ‘buyer’s market’ for legal services is bringing increasing demands from clients,” and forcing the legal firms to evolve into a “more nimble, leaner competitors with greater pressures for efficiency” (Abbott, 2016).
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