Daily Archives: August 11, 2011

Boilerplate Blasphemy

A recent article over on the eSide that explained why you need to Focus on the Fine Print, while a little simplistic, did a great job of pointing out the most important thing you need to remember when you are in contract negotiations:

The advantage always goes to the drafting party.

Always. Why? Because the drafting party always takes home-court advantage. While it is theoretically possible to prepare a contract to the advantage of the other party, I’ve never seen it happen. Even the fairest contract I’ve ever seen gave home-court advantage to the drafting party in the section on Governing Law.

Thus, if you are given a choice as to whether you should start with your paper or their paper, start with yours. And then remember that:

The fairer the contract is, the faster the negotiations will go.

You should only take the advantage where you absolutely need it. If you try to take it in every clause, the other party will likely be insulted at your lack of willingness to at least offer a few concessions and negotiations will not go well.

Remember that the point of a good contract is to build a framework for a problem-free working relationship. Keep that in mind, and drafting will go easier.

The Control Provided by e-Sourcing is Only an Illusion – YOU HAVE NO CONTROL!

A recent post on one of the lesser known sourcing blogs indicated that, due to the lack of economic upturn in most of the developed world, maybe now is the time to finally try reverse auctions. The rationale, quotes from a CEO and his team that watched their first reverse auction that indicated that it was simple, powerful, easy to follow, effective, and, most importantly, if you read between the lines, gave them an illusion of control over the process and the results.

This, and some of the messaging coming from a few of the smaller e-Sourcing providers, is scaring me. I fear that adopters may believe that adopting this technology may give them some control. Well, as this recent article over on Chief Executive on why you should embrace tomorrow’s strategies clearly points out, you have NO control! You can manage the process, but you have no control over the outcomes. Why? For starters

  • Cartels, cabals, speculators, organized crime, and entire countries are constantly manipulating commodity prices.
    Case in point: China possesses over 90% of many of the rare earth metals used in many technologies (smart phones, batteries, etc.) and when they recently reduced exports, a steep price increase resulted that triggered a costly disruption of delivery of the precious commodities to global business.
  • Disasters are on the rise.
    Industrial, agricultural, and political disasters are increasing in frequency and wiping out production in entire regions. For example, the nuclear meltdown in Japan affected most businesses that rely on a Japanese supplier.
  • Global currency fluctuations, unforeseen credit crises, and economic stagnation are increasingly severe and unpredictably enduring.
    The extreme fluidity in the valuation of imported and exported goods, services, and components is as equally difficult to predict and manage.

No e-RFX or Auction is going to help you regain control over these economic nightmares that you have to deal with on a daily basis. And any provider that’s trying to sell you 1999 e-Sourcing technology to deal with the current economic stagnation doesn’t have a clue. There’s only one way you can even hope to adapt to the constantly changing reality, and that is through the adoption of a supply management platform with advanced data analytics capability. You have to constantly monitor, react, adapt, predict, plan for what-if, monitor, react, and adapt again. This requires extensive data acquisition, mapping, transformation, and analysis that only a real analytics solution, with advanced (spend) analysis, optimization, simulation, and reporting is going to provide. Don’t get fooled. All auction platforms give you in this day in age is a false sense of security. Sometimes an auction is the right way to go, but, most of the time, an auction (on its own), is not the answer.