Untapped potential: Microbreweries use legal scrutiny to erode the

three-tier

system

State governments regularly negotiate contracts with vendors. Unfortunately, these negotiations are often prolonged, which can have major downstream effects on projects, procurements, and implementations—including skewed timelines, delayed milestones, and increased costs. Here are five suggestions for shortening contract negotiations. 

1. Limit project scope. Leaner project scope equals shorter contract negotiations. Conversely, the sheer number of requirements, terms, and conditions for larger projects naturally inflate negotiations. Limiting scope means being conservative in what you are looking to achieve. Planning a core systems modernization? They can cost tens of millions of dollars. Limit scope (and cost) to just certain modules. If, for example, you have an ERP modernization, limit projects and procurements to key modules and milestones. 
2. Use project management techniques. Treat the negotiation like a small project. For example, compile a list of tasks and deadlines, as well as names for necessary signatures. Develop a project plan and hold weekly check-ins to keep things on track. Assign someone in your organization as a single point of contact to help shepherd the contract through the process. 
3. Make the vendor’s proposal part of the contract?verbatim. Some states still require copying the proposal response into a contract document, and that often requires modification of proposal language, which slows things down. Attach the solution proposal to the contract cover pages(s) so that the proposal is there, word for word. 
4. Have vendors define deliverables, except for the minimum deliverables you must have. Vendors should know how to deliver their product and services and should include items they expect to be paid for, such as completion of a development cycle, software licenses, and a gap analysis report. Rather than define what deliverables you need, let the vendors define them, except for any mandatory ones, such as a training or testing plan. Ask for interim or draft versions of training or testing plans as part of proposal submission. 
5. Tell vendors ahead of time what the payment constraints are. As a state government, you are bound by budget cycles and authority to spend. You also want working product tied to payment. With both factors in mind, tell vendors up front how much of the contract can be paid in a certain year and how much you are willing to tie to what deliverables. Don’t want to pay more than, say 40% of the project cost for non-software deliverables? Say so. Vendors can then plan their paydays and deliverable sequence accordingly. 
   
   You can also save time and effort by not negotiating at all. States often assume there will be, or allow for, negotiation periods. Yet states can make clear that no negotiation will occur after contract award—or limit what can be negotiated to a small, finite number of items. To prepare for this approach, states should gleam vendor stipulations ahead of time, and perhaps even score vendors on the number or type of stipulations. Use a pre-award proposal clarification period to clarify any terms or demands that are unfavorable to the state and consider ranking or evaluating proposals on the number of objections to terms/conditions raised. 

States should feel empowered to shorten (or, when appropriate, even eliminate) contract negotiations. After all, state time is state money.

When an organization wants to select and implement a new software solution, the following process typically occurs:

1. The organization compiles a list of requirements for essential and non-essential (but helpful) functions.
2. The organization incorporates the requirements into an RFP to solicit solutions from vendors.
3. The organization selects finalist vendors to provide presentations and demonstrations.
4. The organization selects one preferred vendor based on various qualifications, including how well the vendor’s solution meets the requirements listed in the RFP. A contract between the organization and vendor is executed for delivery of the solution.
5. The preferred vendor conducts a gap analysis to see if there are gaps between the requirements and its solution—and discloses those gaps.
6. The preferred vendor resolves the gaps, which often results in change orders, cost adjustments, and delays.

Sound painful? It can be. Step #5—the gap analysis, and its post-contract timing—is the main culprit. However, without it, an organization will be unaware of solution shortcomings, which can lead to countless problems down the road. So what’s an organization to do?

A Possible Solution
One suggestion: Don’t wait until you choose the preferred vendor for a gap analysis. Have finalist vendors conduct pre-contract gap analyses for you.

You read that right. Pay each finalist vendor to visit your organization for a week to learn about your current and desired software needs. Then pay them to develop and present a report, based on both the RFP and on-site discussions, which outlines how their solution will meet your current and desired software needs—as well as how they will meet any gaps. Among other things, a pre-contract gap analysis will help finalist vendors determine:

• Whether programming changes are necessary to meet requirements
• Whether functions can be provided through configuration setup, changes in database tables, or some other non-customized solution
• What workarounds will be necessary
• What functionalities they can't, or won't, provide

Select a preferred vendor based on both their initial proposal and solution report.
Of course, to save time and money, you could select only one finalist vendor for the pre-contract gap analysis. But having multiple finalist vendors creates a competitive environment that can benefit your organization, and can prevent your organization from having to go back to other vendors if you’re dissatisfied with the single finalist vendor’s proposal and solution report, or if contract negotiations prove unsuccessful.

Pros
You can set realistic expectations. By having finalist vendors conduct gap analyses during the selection process, they will gain a better understanding of your organization, and both your essential and nonessential software needs. In turn, your organization gets a better understanding of the functionality and limitations of the proposed solutions. This allows your organization to pinpoint costs for system essentials, including costs to address identified gaps. Your organization can also explore the benefits and costs of optional functions. Knowing the price breakdowns ahead of time will allow your organization to adjust its system requirements list.

You can reduce the need for, or pressure to accept, scope changes and change orders. Adding to, or deleting from, the scope of work after solution implementation is underway can create project delays and frustration. Nailing down gaps—and the preferred vendor’s solutions to meet those gaps—on the front end increases efficiency, helps to ensure best use of project resources, and minimizes unnecessary work or rework. It may also save you expense later on in the process.

Cons
You will incur additional up-front costs. Obviously, your organization will have to pay to bring finalist vendors on-site so they can learn the intricacies of your business and technical environment, and demonstrate their proposed solutions. Expenses will include vendors’ time, costs for transportation, lodging, and meals. These costs will need to be less than those typically incurred in the usual approach, or else any advantage to the modified gap analysis is minimized.

You might encounter resistance. Some finalist vendors might not be willing to invest the time and effort required to travel and conduct gap analyses for a system they may not be selected to implement. They will be more interested in the larger paycheck. Likewise, stakeholders in your own organization might feel that the required costs and time investments are impractical or unrealistic. Remind staff of the upfront investment and take note of which vendors are willing to do the same.

The day-to-day work of providing government services involves collecting, using, and storing large amounts of data. The data that government agencies accumulate is a critical asset — it holds answers about which programs perform best, which interventions are most effective, and how to improve service delivery. Data can also be a liability when it falls into the wrong hands or is misused, even unintentionally. Data governance is a great place to start gaining control of your data.

Establishing data governance can be intimidating. Between resource constraints, multiple and different data policies within large organizations, cultural reluctance to change, and lack of knowledge, it can be difficult to even know where to begin. Start with the fundamentals: understand what data governance is, and why it is so important.

These initial guidelines will help you validate the need for data governance at your organization, and recognize the correlation between reaching your strategic goals and governing data.

So, what is it?
Data governance is an ongoing, evolutionary process driven by business leaders where they establish principles, policies, business rules, and metrics for data sharing. They manage priorities and resources such as data stewards and technologists to acquire, harmonize, summarize, and produce data-rich analyses of data assets required to meet agency goals.

At a high-level, data governance has two main components: 

Why is data governance so important, and why NOW?

• Data ownership is a responsibility. Properly governing data is not only important for organizational strategy, it is also important to produce high-quality client outcomes and levels of satisfaction. When you establish proper data policies and procedures, clients receive a better level of service. 

• The amount of data collected is increasing. Many organizations collect an abundance of data, with no real vision of how to use it. A framework of data governance assists with developing a strategy to take advantage of data and use it effectively. 

• The demand for data is growing. Organizations, especially in the public sector, are required to analyze and submit data for reporting to funders and oversight bodies. Without data governance, these reports can be inaccurate, contain gaps, or be manipulated improperly to produce false reports. 

• The concern for security surrounding data is increasing. Mandates across both public and private sectors constantly evolve, because the more technical our world becomes, the more secure our data needs to be. If an organization does not implement foundational data security measures across all jurisdictions, it can become easy to fall behind the curve, and out of compliance. 

• Organizations miss many opportunities to leverage data more efficiently. Organizations report being unable to provide a high level of confidence to produce accurate data reports, resulting in inefficient resource distribution. A standardized framework for governing data helps produce higher levels of data quality and integrity, and improves report accuracy.

How can your organization start the process?
The first step in a data governance initiative is to assess your organization’s data environment and maturity level. Start by analyzing your organization’s data policies, usage, documentation, and management processes to gain a true understanding of the current data landscape and management maturity level. CMMI’s Data Management Maturity Model (DMMM) and the Data Management Association’s Data Management Body of Knowledge (DMBOK) are great reference resources to assist with understanding the role and definition of data governance.

The time for data governance is now.
BerryDunn’s Government Consulting Group works with state agencies to develop data governance initiatives as well as specific processes and policies to help states take control of data, increase confidence in its quality, and reach strategic goals. 

There is plenty of media coverage of Maine’s, and specifically Portland’s, burgeoning microbrew scene. It’s good economic development and complements the already established “foodie” scene Portland is renowned for. What’s more, microbrewers are increasingly avoiding the middle man, and offering tastings directly to consumers, onsite at their breweries. All who sell beer by the glass in Maine need a license, just as with other states. But the licensing cost for breweries and their tasting rooms is much less expensive than it is for bars and taverns, earning a charge of unfairness from those entities that have to go through a more stringent and expensive process of getting a liquor license. Read here for more detail. As you read, you may enjoy the irony of Maine being the first state to prohibit the sale of alcohol in 1851.

There is another facet to the boom in tasting room sales that is higher up the legal food chain than licensing fees: the three-tier system. First, a quick primer: the three-tier system was instituted at the time of the repeal of Prohibition (December 1933) to remove the problem of a “tied house”. Prior to Prohibition, a tied house was not an uncommon occurrence, where one regional entity had entire control of brewing or distilling, distribution, and retail sale of intoxicating beverages. This resulted in, it was argued, excessive alcoholic beverage sales by larger manufacturers and thus excessive consumption of alcohol. Following Prohibition, states instituted laws establishing a three-tier system whereby manufacturers, distributors and retailers are required to have separate licenses. This separation was designed to prevent dominance of one tier over the others. Gone are the days of saloons that were associated with drinking excess and loyalty to only one regionally dominant brand.

The three-tier system, by many opinions, works well. The National Alcoholic Beverage Control Association (NABCA) has published a paper on the virtues of the system. The Supreme Court, in the landmark case Granholm vs. Heald, declared that the three-tier system was “unquestionably legitimate”^[1]. The Alabama Brewers Guild supports the three-tier system, but feels exceptions should be made, notably direct sales (presumably to include both on-premise and off-premise sales, the latter occurring when a consumer takes beer to go, just like a grocery or package store).

In Portland’s microbreweries (and distilleries, too), direct sales are over the counter, just like a bar. Is it reasonable to make exceptions to the three-tier system and let manufacturers become retailers at a certain level? Probably. A brewery in Portland making under 50,000 gallons of beer a year is no corporate monolith. Neither are craft distillers in North Carolina, where a state senate bill was under consideration recently to allow purchase of one bottle of spirits per year from distilleries^[2]. But it does blur the lines of the three-tier system and its original reason for being. In addition to making those in the industry who pay for a full license upset, the spirit of the three-tier system may be challenged as breweries grow larger. The situation is certainly worth keeping an eye on as the microbrewery revolution continues.

[1] http://repository.law.umich.edu/cgi/viewcontent.cgi?article=1127&context=mlr&sei-redir=1&referer=http%3A%2F%2Fwww.bing.com%2Fsearch%3Fq%3Dargument%2Bagainst%2Bthe%2Bthree%2Btier%2Bsystem%26src%3DIE-SearchBox%26FORM%3DIENTTR%26conversationid%3D#search=%22argument%20against%20three%20tier%20system%22 , page 822.
[2] http://www.wral.com/distilleries-could-sell-more-bottles-direct-to-tourists/15760834/