1. PURCHASING PITFALLS A discussion on how to avoid supplier conflicts
and legal problems. By
Rich Apkarian and Frank Hamidi

2. Discussion Topics The Battle of the Forms The Quantity Conundrum
The Rise in Raw Material Costs
Supplier Termination

3. Topic # 1 - The Battle of the Forms

4. What is the Battle of the Forms?
RFP/RFQ
Quotes
Purchase order
Order acknowledgement form
Production begins
Conflict arises
Two questions:
Do we have a contract?
What are the terms?

5. Contracts 101
Contract = Offer and Acceptance
What is the offer?
Quote
Purchase Order
What is the acceptance?
Order Acknowledgement Form
Performance

6. The Governing Law
Uniform Commercial Code - governs the supply of goods
UCC 2-207
Adopted in every state, except Lousiana
“The greatest statutory mess of all time.” Professor Grant Gilmore, Yale Law School

7. Do We Have A Contract?
Rule #1: If the basic offer is accepted, you have a contract (offer and acceptance), even if the acceptance has additional or different terms, unless the acceptance is expressly limited to its terms (then, it’s a counteroffer).

8. What About Additional Terms?
Rule #2: Additional terms set forth in an acceptance become part of the contract unless:
Offer is expressly limited to its terms.
The offeror objects within reasonable time.
Additional terms materially alter the offer.

9. What If Both Parties Expressly Require That Their Terms Apply?
Rule #3 - The law enforces contracts that are supported by the parties’ conduct even if their forms conflict.
What are the terms of the contract?
Material terms agreed upon.
Conflicting terms knock each other out.
UCC fills in the gaps.

10. How Do I Win the Battle of the Forms?
Make sure your purchase order is the offer.
Example PO language: “This is an offer. The terms and conditions, which are attached hereto (or available at are the sole and exclusive terms on which Buyer will purchase products from Seller. Any additional or different terms proposed by Seller are expressly rejected by Buyer.”

11. On The Winning Path….
If your supplier’s order acknowledgment form contains additional or different terms, send a written rejection.
Example rejection letter language: “Buyer rejects Seller’s non-conforming purchase order acknowledgment. All additional or different terms are unacceptable and shall not be binding on Buyer.”

12. Winning is All About The Details
Get your purchase order signed by the Supplier.
Be careful with business award letters.
If you use multiple documents (quote, purchase order, contract, terms and conditions), reference them and stay consistent.

13. Topic #2 - The Quantity Conundrum

14. Quantity is King
Contracts can be enforceable even if they are missing certain terms.
Terms (even price) may be determined by UCC and parties’ conduct.
UCC states that contract will only be enforceable to quantity stated.
Specific quantity vs. requirements

15. Potential Pitfalls Up to ….requirements.
Ambiguous terms such as “blanket” or “as released” are risky.
Minimums and maximums are risky.

16. Structure of the Contract
Good faith governs
Commit to purchase your requirements
State estimated quantity
UCC specifically contemplates changes in requirements and provides that an agreed upon estimate is the “center around which the parties intend the variation to occur.”

17. Flexibility
Conflict between business flexibility and legal enforcement.
Contract which commits buyer to nothing may offer flexibility but may not be enforceable.
Using requirements plus estimated quantities commits buyer and offers flexibility if requirements vary due to lower volumes or other factors.
Contract likely to be enforced as long as buyer acts in good faith and variations in requirements are legitimate.

18. Topic #3 - Increased Costs

19. The Situation Buyer and Seller have fixed price contract.
Seller’s costs increase - Often driven by volatility in raw material prices (steel, oil, resin).
Seller cannot sell to buyer profitably and asks for price increase.

20. Increased Costs, Cont’d.
Buyer refuses because it cannot get relief from its customer.
Seller stops shipping.
Buyer’s production (and that of its customer) is threatened.

21. An Ounce of Prevention
Address raw material costs at contract formation
Price warranty.
Do you (or your customer) have a steel program?
Structure contract so it is not vulnerable in other areas.

22. A Pound of Cure Negotiate new agreement Pass through
“Split the difference”
Call the lawyers
Pay under protest
Pay into escrow
Seek injunctive relief

23. Topic #4 - Supplier Termination

24. Important Business Considerations
Backup plan
Build a bank of parts
Tooling
Validation process
Notify customers

25. Reasons For Termination
What does the contract say?
Termination for cause.
Termination for convenience.

26. How Do I Properly Terminate?
Issue written notices and follow contract terms.
Pay reasonable compensation, including outstanding invoices, tooling, work in progress and raw material based on reasonable lead times.
Call the lawyers.

27. The End Questions/Comments? Rich Apkarian (248) 433-7215
Frank Hamidi
(313)