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Negotiating Contracts: Not Fun, but Necessary

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At the 2014 Special Libraries Association conference there was a session on “Win-Win Contract Negotiation”. During this session one of the speakers stated that if you didn’t like what the vendor was offering, you could always walk away. The audience’s reaction was that walking away was not always a realistic option in the library world.

So if walking away if not an option, how can law librarians approach negotiations to get a result they’re happy with?

Research the product. Fortunately for librarians, one thing they are good at is research. Before starting negotiations the first thing to do is to figure out how important it is to have the product being negotiated for. Are there alternatives to this product? If so, what makes this product preferable to the alternatives (e.g. price, interface, licence)? Know what the “BATNA” (best alternative to a negotiated agreement) is; BATNA is essentially “the most advantageous alternative course of action a party can take if negotiations fail”.

If you’re renewing an existing contract, re-evaluate the product. Look at the usage information. Who is using the product? How much are they using it? Are you recovering costs? Does the product have a pay as you go option? Could you save costs by moving from a flat fee contract to pay as you go? (Or vice versa?) Talk to the lawyers who use this product. Do they know how much the product costs? It’s not unknown for lawyers on learning how much something costs to decide that maybe it isn’t that critical to their practice.

Read the fine print. If this will be a new contract, read the licencing information. Are there any restrictions that will prevent you organization from using the product in the way you want to use it? Figure out how much the product will be used and for what. How many people are likely to want to use the product? How frequently will they use it?

If it’s an existing contract, re-read the current contract. Some contracts automatically renew if you don’t give a certain amount of notice, with the terms of the renewal already laid out in the contract. The existing contract may specify a price increase that is less than what the vendor is offering in the new contract.

Talk to other librarians. Although many vendors restrict their clients from disclosing the terms of their contracts, it doesn’t hurt to ask other librarians to find out which vendors were willing to negotiate and which vendors were not. Other librarians may be able to suggest concessions that you can ask for.

Ask the vendor what they can do for you. Try to make the contract as flexible as possible. In his article “Negotiating Electronic Content Licenses”, David Whelan has listed a number of contract amendments that librarians have asked for (and received). Examples of areas where there may be flexibility include:

  • Licences. What are the licensing options? If the product is effectively only going to be used by one person, do you need to licence it for the whole firm? Some publishers include access for library and support staff for no additional cost.
  • Length of contract. You may be able to get concessions if signing a multi-year contract. That assumes you are comfortable with being locked in to a multi-year contract..
  • Additional materials. The publisher may be inflexible on price, but be willing to include additional resources “for free” as an inducement. Depending on the resources offered, this may add sufficient value to make the cost of the contract worthwhile. If these additional resources allow you to cancel resources elsewhere, you might be saving money.

The most important thing when approaching negotiations is not to be afraid to ask for changes. While it’s true that you may not get them, if you don’t ask, you don’t get.

Further Reading

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