When using power tools, it's just as important to
know when to stop as it is to start off safely. Once you get tired, the tool
has the advantage and accidents are likely to occur. When I start
making careless mistakes, or dropping things, I know it's time to take a rest.
The Oregon Mid-Valley Purchasing and Supply Management Association is excited to
announce the 68th Pacific Northwest Purchasing Conference to be held at
the Embassy Suites Hotel in Portland, Oregon from October 24 -26, 2011.
Read More....
This Conference will be focused on educational learning opportunities which will
allow each attendee to be able to add value to their own personal professional
knowledge and skills while enhancing their company’s profitability. This
Conference will also provide an excellent opportunity for continued networking
with your professional peers from all over the Pacific Northwest region.
We are planning a minimum of 24 educational programs for you to select from.
More information will follow soon. Mark your calendars so that you will not miss
out on this exciting educational event which is being specifically organized for
everyone working in or with the purchasing and supply management profession!
Here is the latest Conference information....
If you have any questions, please do not hesitate to contact our Conference
Co-Chairs:
Interesting article form the Internet Law Journal. Provides some ideas about
contract formation. In this case the buyer succeeded in avoiding a contract
enforcement action brought by the contractor. Of course, if the facts are
correct, the Buyer would have also been unable to enforce the contract.
Important: I am not a lawyer (thank God!), these are just my non-legal-opinion
comments.
Article
Observations
In the United States (U.S.), and most
countries in the world, a contract is formed when a party extends an
offer and the other party accepts it, and both parties agree on the
object and price. These basic contract concepts have been applied to the
world of electronic contracts. In the U.S. contract law is a state
matter, although the Uniform Commercial Code (UCC) codifies the leading
commercial law principles applied in this country. Thus, when analyzing
any electronic contract, one must refer to the state law on the subject
to determine if there is a valid contract between the parties. An
emerging interesting issue regarding electronic contracts arises when
the parties agree on a contract, but the contract also includes some
terms and conditions delivered to the offeree as an attachment. Is this
attachment binding? This article provides an example of a Louisiana case
dealing with this specific issue.
Question:
If the UCC, as adopted by each State governs contract formation, what
law applies when the contract is formed between international trading
partners?
Boils down to: What does the contract say about which laws apply and
what agreement do the International Trading Partners have about
applicable contract law? read
more...
UCC applies to the commercial acquisition of goods. If the contract is
for services, common law applies (although probably similar issues for
contract formation questions). This case appears to be about services.
Federal Law applies to government contracts, to the extent that a
different process is agreed to in lieu of the UCC (although probably
similar issues for contract formation questions).
In Baker Hughes Oilfield Operation v.
Flash Gas & Oil Southwest, Inc., Civil Action No. 04-2295 (2007), a
U.S. district court denied plaintiff's request for partial summary
judgment in a lawsuit against the defendant in which the plaintiff
claimed damages as part of the contract’s terms and conditions that were
sent as an attachment to the defendant. Baker Hughes, hereafter the
plaintiff, filed a lawsuit against the defendant, Flash Gas & Oil
Southwest, Inc., claiming payment for damages, interests, and attorneys’
fees allegedly owed to them by the defendant according to the terms and
conditions (TACs) of the contract.
According to the plaintiff, the TACs
were part of the contract and were sent to the defendant as an
attachment via e-mail. The defendant argued that these damages were not
permissible under the contract and that the TACs were never sent to or
received by the defendant. Thus, the question of fact for the court was
to decide whether the TACs allegedly sent to the defendant as an
attachment in an e-mail were part of the contract, if in fact they were
sent.
The plaintiff is an oilfield service
company that furnishes labor, equipment, machinery, material and several
services in support of drilling, development and exploration of oil and
gas wells. The defendant is an operator of certain oil, gas and
mineral leases and wells. The defendant contacted the plaintiff and
requested their services to be performed in Louisiana. After a
conversation between the parties, the plaintiff prepared a proposal,
including the schematic and pricing for the completion services and sent
it to the defendant along with an attachment that contained the
contract’s TACs.
Plaintiff = Seller
Defendant = Buyer
The Seller says “I sent the terms with the proposal”
The Buyer says, “ I never got it”
Now the Seller wants to hold the Buyer accountable for the terms of the
contract. The Seller is asking the court to “enforce” the contract terms
which they claim were part of the proposal and part of the resulting
contract.
Plaintiff claimed the TACs were included in
an Excel workbook that contained all the information concerning the
proposal. Some of the TACs stated that the defendant would be bound by
the TACs if the plaintiff was to perform the service, and that the
defendant agreed to those TACs. The plaintiff alleged that shortly after
having sent this e-mail with the proposal and the TACs, the defendant
called the plaintiff and asked them to perform the job. Thus, the
defendant technically accepted the proposal. The defendant claimed that
the parties did agree on a contract, but that he never received the
alleged e-mail with the proposal and the TACs. Further, the defendant
claimed that it was not bound by the TAC because they were never
accepted. The defendant then filed some counterclaims, not the object
of this article.
The Seller says “I sent the terms with the proposal”
The Buyer says, “ I never got it”
Question: When the Buyer placed the order (verbally or via email) what
did the buyer cite as the contract terms? Sounds like nothing…
The Buyer (defendant) says – “We did have a contract. This covers the
most important issue, “Was there a contract?” Now the court just needs
to decide what the contract said.
Important: If you want to ask the court to enforce the terms of the
contract – you first have to prove a contract existed.
The plaintiff presented some witnesses to
prove that the e-mail was sent and that the TACs were part of the
contract between the parties. After considering the parties’ arguments,
the court held that it was undisputed that there was a contract between
the parties, and that the contract might have been agreed on in an
alleged proposed e-mail with an attachment that contained multiple
provisions, or in any other way. Thus, what are being contested in
court are the terms of that contract. Then, the court said that the
requirements of a binding contract under Louisiana are set forth in the
La. Civ. Code Art. 1927 that states:
"A contract is formed by the consent of the
parties established through offer and acceptance.
Unless the law prescribes a certain
formality for the intended contract, offer and acceptance may be made
orally, in writing, or by action or inaction that under the
circumstances is clearly indicative of consent.
Notice that a contract can be formed by “actions” or “inactions”.
Although, if you depend on performance to create the contract, it then
leaves the question open about what the contract says. Much better to
have a signed agreed showing the contract terms.
Interesting point: You can have a contract for someone to “not take
action”. Example: “I will pay you $1000 to delay delivery of the truck
(because I don’t have a place to store it yet). Seller does not
deliver. And thus a contract for $1000 was created.
Unless otherwise specified in the offer,
there need not be conformity between the manner in which the offer is
made in the manner in which the acceptance is made.”
Then, the court held that the circumstances do not clearly
indicate that the defendant intended to accept or consent to the TACs.
Thus, summary judgment cannot be granted. The court specifically said:
“[T]he parties each submit different versions of the facts relevant to
whether Flash actually received the email and as to whether Flash
received, saw and accepted the Terms and Condition attached to the email
in Excel workbook format. There is no proof in the record that Baker
actually sent the alleged e-mail containing the Terms and Conditions to
Flash, and Flash, through its principal Steve Haller, denies ever seeing
or accepting Baker Hughes' Terms and Conditions. A case in such a
posture is not properly disposed of by summary judgment.”
It’s the old “battle of the forms”. Which terms apply if the seller’s
form and the buyer’s form have different terms? Under the UCC, the
contract will consist of a combination of both, with some help from the
court and the UCC to determine what happens to contradictory terms.
Each form probably says – “This is the only one that applies”. It
doesn’t really matter too much if the parties can not show an agreement.
Problem: In international law does a contract exist if the two forms
are different? Does a contract exist if the Buyer and Seller cannot
show specific agreement on terms? This depends on the laws of that
country.
The Buyer won (luckily) because the Seller couldn’t prove the Buyer had
ever seen the proposed terms.
There is no subsequent history for this
case. It seems that the parties might have settled their differences
under this contract. Yet, what one can learn from this case is that if
one is to apply state law to prove that the terms and conditions of a
contract sent via e-mail as an attachment are binding, one must have the
evidence necessary to show that the offeree expressly accepted the terms
of the contract incorporated in that attachment. More than a legal
question, this is a very factual question that comes down to be an
evidentiary question in any case.
Important Point: If you want to ask the court to enforce the terms of
the contract – you have to prove the other party agreed to the
contract and that those terms were part of the contract.
1-1. Prove there is a contract
2-2. Prove what the contract says
In this case either side might have won easily if they could prove what
the contract did or didn’t say. The buyer should have specified the
contract terms when he placed the contract and/or the seller could have
requested an acknowledgement of his terms.
Digital Image
One picture can be worth 1000 words. Keep in mind –
today, digital images are so easy to capture and send. Accordingly it is
reasonable to ask for pictures or even in some cases videos either as part of a
proposal or as part of the contract performance. Here are some ways that
pictures might be useful in the contracting process:
To show previous work or process capabilities
To highlight specific equipment, inventory or
facilities
To document finished work or show handling damage
To clarify a complex instructions
To demonstrate installation, operation or
maintenance
As training programs
NOTE: Don’t forget to include the digital images in the
record – if appropriate.
Pre-Award Information
We work hard at writing comprehensive SOWs for our
contractors, so it’s easy to forget that we might have missed something
important, or that the contractor may have misunderstood our requirements. It’s
also easy to forget that different contractors might have alternate methods of
performing our SOW. { One offeror might elect to use explosive demolition vs
mechanical }
Accordingly, it’s important to spend some time
identifying the information we need from contractors as part of their proposal.
In most cases we want more than just a price. We want the contract to provide
enough information so we can be sure they understand our requirements and that
we understand their proposal. Determining that a contractor’s proposal is
responsive to our needs and that the contractor is a responsible entity is an
important part of selecting the right contractor.
Proposal submittal requirements reflect the nature and
scope of the work, but are separate from the SOW. Here are some questions to
consider asking the contractor to respond to in the proposal:
How do you plan to perform the work? Obviously we
want a contractor to demonstrate they understand the SOW by providing a
description which shows they understand and can comply with our
requirements.
Are there additional hazards inherent in the work
that we have failed to identify or will arise because of the way the work
will be done?
Are there training, worker qualification or
personnel requirements which are missing or in error?
Will you be bringing hazardous materials on site?
What, when, how?
Will your performance generate any hazardous wastes
or have any environmental impact?
Will the work be performed using a QA program,
certifications, licenses, specialized training, calibrated instruments, etc.
How do you plan to communicate the job hazards and
work controls to the people who will be performing the work?
How do you verify that workers sent to my site are not abusing
controlled substances or are illegal aliens?
Don’t forget to determine who, when and how the proposal
information will be evaluated. Supporting organization technical personnel
should be included in determining proposal submittal requirements and in
proposal reviews.
Pre-Mobilization Submittals
There is a lot to do before contractors arrive on site
to begin work. Depending on the nature of the SOW, it could be as simple as
providing information about personnel, or it could be formal submittals
requiring pre-work approvals. In either case, the pre-mobilization requirements
should be identified in appropriately in the SOW, submittal register and/or work
requirements documents. Also, most importantly, if submittals- are requested,
be sure to address and plan for how the submittal will be handled. Here are
some issues and examples to discuss with technical personnel during SOW
preparation
When is the submittal required? Does it have to be
reviewed and approved or is it just “for the file”?
Does it have to be received before mobilization? If
so, when (x-days before start of work or ?)
Can any part of performance start before the
document is approved? (Training, medical exams, or ?)
Who will perform the review and have we allowed
adequate time to perform our review commitment without impacting the
contract completion date?
Examples of submittal & review items to consider
obtaining and reviewing before the kickoff meeting
DOT Licensing information for commercial vehicles
and DOT licensed operators.
List of Chemicals that will be brought on site,
including MSDS sheets
Professionals
develop their own professional development programs! No one would want to use a
doctor or a tax attorney who hasn't kept up with the latest advancements. Are we
any different than them? We are, if we hope that someone else will take
responsibility for our professional development.
Read more....
Here is a
different look at a strategy
My Resume... Note to Self
After listening to Executive Recruiter Leo
Espinoza at the conference (see notes below), I think I'll download his
presentation from the ISM web site and re-think my resume from the bottom up.
Professional Attitude
What feedback do you give your
peers about educational events that you have participated in? By sharing and
discussing we not only help our peers, but we clarify our own understanding and
memory of the event. See an example below; my notes from the ISM conference
which I shared with our office)
This is by far one of
the most valuable tools that ISM offers local affiliates. The Leadership
Workshop brings people together from across the country to talk about leadership
functions, issues and techniques. This year it will be in Orlando on May 13 and
14. I encourage affiliate to send a team of people. I also highly recommend that
someone lead the team in planning how best to take advantage of the program,
before they arrive. This is the
ISM web site about the leadership workshop ( it's in
the members only area). Here are some
notes and suggestions to share with people who are planning on attending
On May 13-14, I participated in the ISM
Leadership workshop with approximately 150 leaders of ISM affiliates from across
the U.S. This year included “S.K.”, who is the president of the ISM affiliate in
Korea and “Chris” who is the president of the newly formed ISM affiliate in
India. Workshops and round table discussions included the mechanics of operating
local affiliates as well as general topics of leadership skills, effectively
using social media and web technology for communicating with members.
Lots of talk about the new ISM Corporate
Membership program, wherein a large corporation can acquire ISM membership for
all of the Corporate Supply Chain personal at a discount in one transaction.
Agenda is attached and if you are interested, most of the presentation materials
will be posted in the Affiliate Support section of the ISM web site.
Agenda
We also stayed for 2 days of the ISM
international conference. The event is huge – 2000 participants from all over the
world. Large contingents from Korea, China, Japan and other countries. If
you have never been to one of the conferences, I highly recommend you make the
personal investment to attend one. It helps to broaden your perspective about
Supply Chain Management by meeting and talking with people from diverse
organizations. Take a look at the conference videos (Daily Videos) to get an
idea of the variety of people you’ll meet.
Conference next year will be in Baltimore,
May 6-9.
Spoke with several of the Scholarship
winners. They are all very highly educated, articulate and motivated individuals
who will be graduating with degrees in Logistics, International sourcing, and
Supply Management. They will be the workforce competition of tomorrow.
Winners
Chatted with several interesting colleagues,
including Madison Goodwin, the manager of the HP Global eSourcing team.
Interesting to hear her comments, and others, about international travel and
barriers to locating and managing vendors in diverse countries.
Keynote address by the ISM BOD Chair Sidney
Johnson who is the Vice President of Global Supply Management for Delphi
Corporation. He spoke about his organization as being “GLOCAL”, a globally
driven organization with local management. Delphi won an award for a software
tool they implemented which allows Delphi management to find the Total
Acquisition Cost for sourcing items and services in just a few minutes.
Considering that the source could cover multiple countries and be shipped to
factories located in 7 countries – the tool is powerful. It is one of the
actions that he credits for helping take Delphi out of bankruptcy and back in to
a competitive player. More than just GM, their customers now include many major
corporations. His mantra for the Supply Chain team; “What do I know that is
worth sharing?” Interesting question was asked – “What is Delphi doing to help
with harmonization of internationals rules and regulations affecting the Supply
Chain?” He sidestepped the answer.
Workshop by Wayne Evans, Head of Procurement
Americas, DHL Global Business Services. Along with their solution contractor
Emptoris, he spoke about extending the reach of procurement into complex spend
categories traditionally not included in procurement scope ( such as legal
services, benefits, insurance, etc.). The DHL supply chain organization includes
500 procurement staff, spans 45 countries and was responsible for over $10B in
expenditures last year – not including transportation! Key points included:
a. Take care of procurement basics before
trying to convince senior staff to allow procurement to get involved with other
complex spend categories.
b. Identify the barriers and proactively address them before the question is
asked. Why and how procurement can help should already be determined before
starting the discussion.
c. Suggest becoming a “trusted advisor” to senior staff in order to gain
acceptance for new ideas.
d. Interesting negotiation angle with Legal or HR: By teaming with procurement
to issue the contracts for legal counsel and executive search firms, the Legal
and HR organizations can remain the “good guys” to all their industry contacts
while procurement takes the heat for negotiating price and contract terms. Use
the good-guy/bad-guy strategy as a selling point to the customer who would want
to be seen as the good guy in the negotiation process.
Workshop by Leo Espinoza, Client
Partner Korn Ferry International. Spoke about recruiting senior Supply
Management Executives. Very articulate and knowledgeable about the profession,
key supply chain issues, and the career market for executives. If you ever get a
chance to hear him – I recommend. Key points:
a. Briefly discussed awareness of career marketplace as described in Korn Ferry
video, “ The Future of Talent”
http://www.youtube.com/watch?v=H-JjE_uXaCA (5 minutes and scary to
watch)
b. Marketable executives have skills which include demonstrated experience with
“transformational agendas”, “strategic skills”, “interpersonal leadership”, “and
change management”.
c. Before you get called by a headhunter – be prepared with clear, compelling,
crisp and
relevant examples of your accomplishments.
d. Rarely does an organization hire a senior management person to maintain the
status quo.
More often the expectation is that the new manager will transform the
organization and
implement changes.
e. Question: Does moving frequently or multiple times affect a person’s
marketability? His
perspective: “You learn the business at the expense of your employer, show me
when and
how you paid that back.”
Keynote speaker, Daniel Burrus,
Technology Futurist & Business Strategist, author and TV personality.
Interesting to hear him talk about facing future and technology trends head on.
Key points:
a. Don’t wait until the change happens – you know it is going to change, so
start thinking about it now.
b. You are going to spend the rest of your life in the future – not the past.
c. Not enough time to spend thinking about and planning for the future – not a
good excuse.
d. Before answering a business challenge with a “no” consider how much the “no”
will cost.
e. Some changes are cycles; e.g. as baby boomers get older; they will get more
conservative in their spending.
f. Some changes are inevitable; e.g. there will be gasoline-free ways of
transportation implemented someday.
g. Change in business is not always the same as “transformation”. Change can
drive transformation or close a business that is not ready for it.
h. Question he asked the audience; “Do you think there will eventually be laws
requiring some companies to keep telephone conversations as records?” Only a few
of us raised our hands in the affirmative.
i. Handout
ISM Services Group sponsored a number of
conference presentations. They are hosting a services conference in Arizona,
December 1, 2. Attached is a page from their newsletter showing the topics they
sponsored and the scholarship winners. Participating in a specialized group is
one way to maximize membership.
services.pdf
Sometimes Word text takes on
a life of its own. Pasted text might include a number of obscure formats that
you’d be better off without. In those cases, I like to clear all the
formatting and start with plain text, then add the format I really want.
You have options:
When
pasting text from one document to another Use the Paste Special option on
the Paste menu to paste text only – without the formatting.
Highlight the text and on the Font menu select the CLEAR FORMATTING button (
it looks like an eraser with some letters)
Highlight the text and use keyboard shortcut CTRL+spacebar
For
quick access add the Clear formatting button to your shortcut menu.
Clear
formatting from the whole document, by first using CTRL+A to select all
text, then the clear formatting command.
Once you have plain text,
it’s easy to get the formatting of new text to match existing text in the
document. Place the cursor in the properly formatted text and right click. In
the menu select the format paintbrush. Then use the format paintbrush to
highlight the text you want to format.
Provide Feedback and
suggestions for future newsletters at any time. I'll try and use what I can.
I really do
appreciate those of you who take the time to write and comment on this
newsletter! As always, you are welcome to use my articles or presentations for
educational purposes. Just as long as you are not charging for the materials and
credit the source.
This newsletter was sent to people who have
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list nor do I send spam or any of the other oddball messages we all seem to
receive everyday. If you want me to drop you from the list, just ask. If you
think I’m sending you the other spam –
It ain’t me babe [doesn't that line sound
like it should be a song?].
If this newsletter was not delivered directly
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