DEFENCE INDUSTRY SURVEY 2010

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1 LOGIE-SMITH LANYON LAWYERS AND AUSTRALIAN INDUSTRY & DEFENCE NETWORK Inc DEFENCE INDUSTRY SURVEY _078.DOC

2 TABLE OF CONTENTS: Defence Industry Survey 2010 Report... 1 Executive Summary:... 2 Results... 2 Acknowledgements: _078.DOC

3 Defence Industry Survey 2010 Report This is the second Defence industry survey undertaken by Logie-Smith Lanyon Lawyers & the Australian Defence Industry Network (AIDN). During the first quarter of 2010, Logie-Smith Lanyon Lawyers surveyed Defence contractors experience in tendering, negotiating and performing Defence contracts. The purpose of the survey was to provide an industry perspective on Defence procurement, contracting and dealings with Defence and Defence industry, and also between Defence industry companies, and to highlight any changes from the previous year's survey. In addition, the intent of the survey was to provide Defence industry with the opportunity to present their views and opinions on doing business with Defence and within the Defence industry. Methodology: the survey was made available on-line, via notification to the +800 AIDN members throughout Australia. The survey consisted of 56 questions; which consisted of a combination of multiple choice and qualitative responses. Logie-Smith Lanyon was available to answer any questions that the respondents had on the survey. In total, there were a total of 111 responses received over a period of 1 month. This report is a summary of those responses. Andrew Logie-Smith Logie-Smith Lanyon Graham Priestnall AIDN National President 1

4 Executive Summary: Of the +800 AIDN members throughout Australia, 111 responded to the 2010 Defence Industry Survey, which was up from Once more, the respondents represented a cross section of the AIDN membership, from large Primes to small Subcontractors. The results generally reflected those of the 2009 survey except for the following: those respondents with an Annual Turnover of greater than $100 million has increased dramatically, whilst the amount of money spent on negotiating with contractors, subcontractors and Defence has largely declined. The five most time-consuming matters for the respondents in negotiating contracts with Defence were (in descending order): schedule & delay, price, variations and change control, intellectual property, (equally) acceptance testing and financial capacity & guarantees. The five most time-consuming matters for the respondents in negotiating contracts with Prime Contractors were (in descending order): price, schedule & delay, variations and change control, warranties and defects, and limitation of liability. The five most time-consuming matters for the respondents in negotiating contracts with Subcontractors were (in descending order): price, schedule & delay, warranties and defects, variations and change control, and acceptance testing. 47.6% of respondents felt that the time and money spent tendering and negotiating contracts with Defence represented value for money to their organisation. 41% of respondents felt the ASDEFCON suite of documents were not user friendly, and were difficult to understand. Once again, the finding revealed that nearly 30% of the respondents admitted to having no knowledge of the ASDEFCON suite of documents whatsoever. Also, still nearly 30% of respondents admitted to having no knowledge of the Defence Procurement Policy Manual. 2

5 Results 1. The following graph depicts the location of the respondent s headquarters: approximately 35% noted Victoria and 27% from NSW. 2. The following graph depicts a break-down of the respondents by number of employees: 3

6 3. The approximate annual turnover for the respondent s organisations were as follows: 4. The respondent s organisation involved themselves with Defence procurement in the following capacities: Approximately 41% of respondents stated that they were usually the Subcontractor, and contracted with a Prime Contractor Approximately 41% of respondents stated that they were sometimes the Prime Contractor and sometimes the Subcontractor Approximately 18% of respondents stated that they were usually the Prime Contractor and contracted directly with Defence. 5. The respondents rated the importance of the following matters, with 1 being the lease important and 10 being the most important: Answer Options Getting the business Acceptable contract terms Risk assessment and mitigation Acceptable price and pricing terms Acceptable delivery schedule Defects liability and warranties Limitations of liability 4.5% (5) 4.5% (5) 3.6% (4) 0.9% (1) 1.8% (2) 0.0% (0) 1.8% (2) 3.6% (4) 0.9% (1) 0.9% (1) 0.9% (1) 0.9% (1) 0.0% (0) 5.4% (6) 0.0% (0) 0.0% (0) 0.9% (1) 5.4% (6) 0.0% (0) 0.9% (1) 3.6% (4) 11.7% (13) 9.0% (10) 4.5% (5) 10.8% (12) 12.6% (14) 12.6% (14) 0.9% (1) 4.5% (5) 8.5% (9) 8.5% (9) 8.5% (8) 4.5% (5) 15.3% (17) 17.1% (19) 11.7% (11) 8.5% (9) 14.4% (16) 10.8% (12) 18.0% (20) 14.3% (27) 27.9% (31) 25.2% (28) 26.1% (29) 20.7% (23) 21.6% (24) 9.0% (10) 10.8% (12) 11.7% (13) 18.0% (20) 17.1% (19) 5.4% (6) 10.8% (12) 57.7% (64) 27.0% (30) 20.7% (23) 33.3% (37) 23.4% (26) 25.2% (28) 27.9% (31) Response Count

7 6. The graph below depicts since 2000 how many tenders were submitted in response to Requests for Tender ( RFT ) issued by Defence, with the following successful outcomes: 5

8 7. The graph below depicts since 2000 how many tenders were submitted in response to RFT issued by Prime Contractors, with the following successful outcomes: 6

8. The following graph indicates the average full time equivalent hours

9 8. The following graph indicates the average full time equivalent hours each respondent expended in preparing a Tender: 9. The following graph indicates the average full time equivalent hours each respondent expended in reviewing and responding to a draft Condition of Contract in a RFT: 10. The following graph indicates the average full time equivalent hours each respondent expended in reviewing and responding to a draft Statement of Work in a RFT: 7

10 11. The following graph indicates the position of the person who is primarily responsible for a Tender: 12. The following graph indicates the position of the person who is primarily responsible for a reviewing and responding to a draft Conditions of Contract in a RFT: 13. The following graph indicates the position of the person who is primarily responsible for a reviewing and responding to a draft Statement of Work in a RFT: 8

15. The following graph indicates the average amount

11 14. The following graph indicates the average amount spent by each respondent in responding to a Defence RFT 15. The following graph indicates the average amount spent by each respondent in responding to a Prime Contractor RFT 9

The graph below indicates the position of the person who is primarily responsible for responding to a Request for

12 16. The graph below depicts since 2000 how many quotations the respondents submitted in response to requests for quotations issued by Defence, with the following successful outcomes: 17. The graph below indicates the position of the person who is primarily responsible for responding to a Request for Quotations issued by Defence: 18. The graph below indicates the average full time equivalent hours each respondent expended in preparing a quotation: 10

13 19. In terms of rating their understanding of Intellectual Property ('IP') and IP provisions in a contract, 57.1% of respondents agreed that they had a good understanding of IP and were reasonably comfortable reviewing and negotiating IP provisions in a contract. 35.7% of respondents agreed that they only had a basic understanding of IP and why it was important. 20. In terms of rating their understanding of Liquidated Damages ('LD') and LD provisions in a contract, 45.2% of respondents agreed that they had a good understanding of LD and were reasonably comfortable reviewing and negotiating LD provisions in a contract. 35.7% of respondents agreed that they only had a basic understanding of LD and when it may be appropriate. 21. In terms of rating their understanding of liability and indemnity provisions in a contract, 50% of respondents agreed that they had a good understanding of liability and indemnities and were reasonably comfortable reviewing and negotiating these provisions in a contract. 34.5% of respondents agreed that they only had a basic understanding of liability and when it was appropriate to give indemnities. 22. The table below indicates how often the respondents organisations obtained expert advice in relation to reviewing and negotiating IP provisions, LD provisions and liability and indemnity provisions in contracts: Answer Options Always Sometimes Never Organisations that obtain expert advice (internal or external) when reviewing and negotiating IP provisions in contracts 26.2% (22) 63.1% (53) 10.7% (9) Response Count 84 Organisations that obtain expert advice (internal or external) when reviewing and negotiating LD provisions in contracts 31.0% (26) 53.6% (45) 15.5% (13) 84 Organisations that obtain expert advice (internal or external) when reviewing and negotiating liability and indemnity provisions in contracts 28.6% (24) 57.1% (48) 14.3% (12) The graph below indicates how the respondents rate their understanding of Contract Scheduling: 11

24. In terms of their experience negotiating contracts with Defence, the 5 most time-consuming matters for respondents, in descending order, were: Schedule and delay (68.3%); Price (68.

14 24. In terms of their experience negotiating contracts with Defence, the 5 most time-consuming matters for respondents, in descending order, were: Schedule and delay (68.3%); Price (68.3%); Variations and change control (35.4%); Intellectual property (31.7%); and Acceptance testing (30.5%) and Financial capacity and guarantees (30.5%). 25. In terms of their experience negotiating contracts with Prime Contractors, the 5 most timeconsuming matters for respondents, in descending order, were: Price (73.4%); Schedule and delay (60.8%); Variations and change control (36.7%); and Warranties and defects (32.9%); and Limitation of liability (30.4%). 26. In terms of their experience negotiating contracts with Subcontractors, the 5 most timeconsuming matters for respondents, in descending order, were: Price (76.3%); Schedule and delay (65.0%); Warranties and defects (41.3%); Variations and change control (37.5%); and Acceptance testing (33.8%). 27. The following graph indicates the amount in dollar terms each respondent spent on average negotiating a contract with Defence: 12

28. The following graph indicates the amount in dollar terms each respondent spent on average negotiating a subcontract with a Subcontractor: 29.

15 28. The following graph indicates the amount in dollar terms each respondent spent on average negotiating a subcontract with a Subcontractor: 29. The following graph indicates the amount in dollar terms each respondent spent on average negotiating a subcontract with a Prime Contractor: 30. According to 47.6% of the respondents, the time and money spent tendering and negotiating contracts with Defence represents value for money. According to 59.5% of respondents, the time and money spent tendering and negotiating with Prime Contractors represents value for money. 13

31. In relation to respondents dealings with Defence tenders and contracts, the following graph outlines the average time between tender award and contract signing, the majority falling between the

16 31. In relation to respondents dealings with Defence tenders and contracts, the following graph outlines the average time between tender award and contract signing, the majority falling between the 1-6 months period: 32. In relation to respondents dealings with Defence tenders and contracts, the following graph displays the main reason, according to the respondent, for the length of time between tender award and contract signing, with more than half thinking it is either due to the time spent evaluating tenders or due to changes in Defence policies/priorities: 33. In relation to respondents dealings with Defence tenders and contracts, the following graph displays the respondents level of satisfaction with the length of time between tender award and contract signing, with more than half being either somewhat dissatisfied or very dissatisfied: 14

17 34. The following table indicates the general satisfaction among the respondents in terms of Defence s responsiveness during the tender process (for example to request for further clarification, or in evaluating tenders), during contract negotiations (for example to proposed amendments) and during contract performance (for example to requests for variation, or in response to notices): Answer Options Defence s responsiveness during the tender process Defence s responsiveness during contract negotiations Defence s responsiveness during contract performance Very responsive 16.7% (13) 11.5% (9) 12.8% (10) Moderately responsive 29.5% (23) 28.2% (22) 30.8% (24) Average 29.5% (23) 38.5% (30) 37.2% (29) Moderately unresponsive 14.1% (11) 17.9% (14) 14.1% (11) Very unresponsive 10.3% (8) 3.8% Respons e Count % (4) The following table indicates whether the respondents believe Defence is generally knowledgeable in respect of the ASDEFCON procurement process and contracts, and in respect of the technical solutions tendered and delivered, the results revealing the respondents believe Defence is more knowledgeable in respect of the former than the later: Answer Options How well Defence understands the ASDEFCON procurement process and contracts How well Defence understands the technical solutions tendered/ delivered Very knowledgeable 20.5% (16) 10.3% (8) Moderately knowledgeable 26.9% (21) 25.6% (20) Average 39.7% (31) 39.7% (31) Moderately unknowledgeable 9.0% (7) 20.5% (16) Very unknowledgeabl e 3.8% 3.8% Response Count When asked about their level of familiarity with the ASDEFCON suite of documents, over 70% of respondents felt they had a basic to good understanding of the documents. Nearly 30% of the respondents admitting to no knowledge of the documents whatsoever. 37. When asked about their level of familiarity with the Defence Procurement Policy Manual, almost 70% of respondents felt they had a basic to good understanding of the documents. Nearly 30% of respondents admitting to no knowledge of the Manual whatsoever. 38. In terms of how well ASDEFCON balances the rights and interests of contractors against the rights and interests of Defence, of the respondents: 47% felt that Defence was somewhat favoured; 33% felt Defence was heavily favoured; only 20% felt that the rights and interests were balanced fairly between the parties; and no one felt that the contractor was favoured. 15

18 39. In terms of rating the ASDEFCON suite of documents as user-friendly and understandable, 41% of respondents disagreed and felt the documents were somewhat difficult to use. 39% felt the documents were adequate and neither user friendly nor difficult to understand. 40. The graph below indicates the overall satisfaction of the respondents with the procurement documents and processes used by Defence: 16

19 Acknowledgements: We would like to acknowledge the assistance of the following persons, whose efforts have made this Report possible: Sue Smith, AIDN Victoria; Simon Hanlon, Logie-Smith Lanyon Lawyers; Shifra Bendet, Logie-Smith Lanyon Lawyers; and Hyder Gulam, Logie-Smith Lanyon Lawyers. 17

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