Views of FIRM/NCC Sample Clauses

Views of FIRM/NCC. FIRM/NCC submitted that ATCO must meet a higher standard with respect to the Renewal MSA simply because it is an affiliate transaction. FIRM/NCC generally continued to support the positions brought forth by Calgary and did not consider that ATCO met the onus of proof in demonstrating that customers were not disadvantaged by certain of the terms and conditions of the Renewal MSA. FIRM/NCC suggested that customers were entitled to be concerned with the Renewal MSA due to the overlapping Boards of Directors15 in the ATCO group of companies, the fact that the companies have one CEO16 and a single shareholder, and that to date the only ATCO I-Tek customers were within the ATCO Group.17
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Views of FIRM/NCC. FIRM/NCC took issue with ATCO’s position that there were no substantial changes to the new MSA32 and that the changes were made “to provide clarity to the contract, conform the agreement to changes in the IT business or to reflect the changing nature of our operating environment.”33 FIRM/NCC submitted that several of the changes to the Original MSA appeared to be material and had the potential to alter the thrust of the Original MSA. FIRM/NCC submitted that the Board should resist concentrating only on the changes, but rather view the Renewal MSA in its entirety, given the time that has passed since the Affiliate Transactions Proceeding and the changes in the IT business and operating environment since then. FIRM/NCC submitted that there was a shift during the course of the oral testimony of the ATCO panel, from an assertion that the provisions of the Renewal MSA were typical, to an assertion that this was merely a “practical approach” and not a “legalistic approach”. FIRM/NCC argued that although this appeared to lend credibility to Xx. Xxxxxxxx’ evidence, XXXX dismissed her “legalistic approach” in favour of their “practical approach”. FIRM/NCC submitted that this practical approach did not meet the onus of proof set out by the Board in the Code of Conduct decision.
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Views of FIRM/NCC. ‌ FIRM/NCC submitted that ATCO revised the clause dealing with termination. The old Clause
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Views of FIRM/NCC. FIRM/NCC referred to Exhibits 103 and 104, the comparisons of the Renewal MSA and the Original MSA, and submitted the first substantive change was in the new paragraph 13.5 whereby exclusive title to and all ownership of all IP shall rest solely with ATCO I-Tek. FIRM/NCC submitted that Clause 10.8 of the Original MSA, which was deleted, stated that: Ownership in and to any new developments, deliverables and/or know-how arising out of or other wise created in the course of the Services, including any IP rights therein, shall belong to the Client in respect of those developments, Deliverables, and/or know-how that were funded substantially by Client. FIRM/NCC suggested ATCO tried to minimize the import of the changes and the value of the IP rights when it asserted that the purchase of new commercially available software would address those concerns. However, ATCO provided no evidence as to the costs that might be incurred in transitioning from ATCO I-Tek to a new outsourcer. FIRM/NCC suggested this was one of the major concerns addressed by the Calgary evidence, and was clearly a substantive change that went well beyond providing clarity to the contract. FIRM/NCC referred to the new Clause 13.7, which provided that all assets not expressly designated in the Renewal MSA as belonging to the client would belong to ATCO I-Tek. FIRM/NCC argued that a default clause such as that could only mitigate in ATCO I-Tek’s favour. FIRM/NCC noted ATCO’s view that ATCO I-Tek had an obligation to provide the ATCO Utilities access to the intellectual property during a transition period and for as long as the ATCO 54 Transcript, page 493 55 Transcript, page 492 56 Transcript, page 496 Utilities required such systems.57 FIRM/NCC also noted that Clause 15.6 provided for a 20% surcharge to be applied to the charges otherwise applicable to all services during periods of temporary extension.58 FIRM/NCC suggested a new outsourcer would not impose this surcharge. FIRM/NCC agreed with Xx. Xxxxxxxx when she stated: Does it make sense for some of these provisions to be there and does it protect the utility for them not to be there…and if the utility thinks these terms are already there, even if we can’t find them, let’s make it clear and put them in.59 FIRM/NCC suggested that if ATCO thought IP ownership was irrelevant, why were they objecting to including it in favor of the utilities? Such a position only raised further concern over ATCO’s motives for wanting to exclude the protection d...
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Views of FIRM/NCC. FIRM/NCC submitted that some form of gainsharing might be appropriate to elicit cost savings and as a reasonable alternative to the annual benchmarking exercise at a cost of $750,000 to $1,000,000, and accordingly, gainsharing warranted further exploration. FIRM/NCC agreed with Xx. Xxxxxxxx, that agreements with gainsharing could be benchmarked against other such agreements.71 Otherwise, it may be necessary to make adjustments to the ATCO I-Tek charges to 66 Transcript, page 487‌ 67 Transcript, page 488 68 ATCO Utilities Argument, pages 4 and 5 69 Transcript, page 488 70 Transcript, page 487 71 Transcript, page 488 compensate for the lack of gainsharing provisions. However, FIRM/NCC suggested ATCO should be directed to bring forward a gainsharing proposal with its next benchmarking study to determine whether the interval between benchmarking studies could be extended and to place them on a more equal footing with their benchmarked counterparts, in order to mitigate the controversies with benchmarking methodologies as discussed in Exhibit 504 and as raised by Xx. Xxxxxxxx.
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Views of FIRM/NCC. FIRM/NCC noted that Xx. Xxxxxxxx considered that ATCO I-Tek’s prices could not be compared to anything available in the industry from independent arm’s length outsourcers.126 In response to questions from Board counsel, Xx. Xxxxxxxx outlined a process whereby he considered benchmarking could be successful in analyzing the component parts of the services, “if someone provides open access to I-Tek’s books.”127 Under that process, the Board would hire an independent consultant to establish terms of reference, select the benchmarking consultant and participate in the benchmarking exercise with the benchmarking consultant, all leading to a compliance filing.128 Xx. Xxxxxxxx said that the reason for an independent consultant was the issue of independence and transparency.129 FIRM/NCC disagreed with ATCO’s proposal whereby ATCO would retain and instruct the benchmarking consultant, following which the benchmarking study would be submitted for a compliance filing. 130 FIRM/NCC submitted that interveners have not had access to the inner workings or assumptions inherent in such a process and were left to wonder about the transparency of such a process. FIRM/NCC argued that so long as ATCO denied access to ATCO I-Tek’s cost and price structure, interveners’ understanding and perspective would always 122 Exhibit 109 - ATCO Letter of March 7, 2003; Transcript, pages 365 and 541 123 Transcript, page 528 to page 529; page 336; page 442 124 Transcript, page 527 125 See for example Decision 2001-110‌ 126 Transcript, page 422 127 Transcript, page 423 128 Transcript, page 425 129 Transcript, page 427 130 Transcript, pages 550 to 551 remain anecdotal. Further, FIRM/NCC asserted that the process of benchmarking should be considered very carefully, for the following reasons: • the matter at hand involved a $250 million contract between affiliated companies; • one of the parties to the contract was unregulated; • as acknowledged by XXXX, there was still controversy as to the best way to benchmark IT services, which methodology worked best , what the result should look like, and who was best qualified to conduct a fair and objective benchmark study;131 • as acknowledged by XXXX, many benchmarking studies were executed incorrectly resulting in misleading results;132 • as acknowledged by XXXX, a benchmarking study could be an invaluable tool if applied appropriately;133 and • the only assurance that ATCO could provide respecting the accuracy of the benchmarker’s study was that a be...
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Views of FIRM/NCC. FIRM/NCC noted that ATCO has chosen to utilize a structure of affiliated companies to provide its IT support services. Yet, while FIRM/NCC acknowledged that ATCO was now entitled to do so, it was important that the benchmarking process be clarified by the Board and procedures implemented in order to safeguard customers and ensure the accuracy and validity of any benchmarking study. 137 Transcript, page 391 to page 392 138 Transcript, page 528 139 Exhibit 303 - Calgary letter dated March 28, 2003 140 Transcript, page 529 to page 530‌ 141 Transcript, page 530 to page 534
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