Monthly Archives: September 2023

Three Critical Elements of a Good Procurement Contract

We’ve been seeing quite a few articles lately popping up randomly on LinkedIn, Procurement searches, newsletters, etc. around Procurement Contracting, and, as you’ve probably guessed, we’ve noticed that most of them aren’t great. Not to say they’re bad, they’re not, but usually they’re finely focussed on core clauses that should be in there to keep the lawyers happy, using standard templates for consistency, making sure you have Force Majeure or appropriate risk management clauses (which are important, but miss the point), or on particular specifications or appendices you need for services contracts, etc. Few are good across the board, and most miss the key points.

So, today, we’re going to overview key elements of a good procurement contract, be it for goods or services, that all buyers should be aware of. This is not intended to be a complete list, as every category is different, every company is different, and every scenario is different and no single generic checklist will cover everything that is needed, but one can distill a list of common requirements that will always be required regardless of the category, geography, company, or situation at hand. Logically speaking, these requirements will always be necessary, but may not always be sufficient.

1) As Dick Locke will tell you over and over again, if you want them to be good, then all of your contracts should be written in Plain English, not convoluted legalese, and should be comprehensible by someone with a high school education. Not all buyers will have a University education, or even a College education, and even if they do, it may not have been in English and/or English may not be their first language.

2) A good contract answers the 6Ws: who, what, when, where, why, and how.

a) what are the goods and services the organization is contracting for

b) who is the intended recipient of the goods or services (not just the company) who will be using the goods or services and signing off that they are fit for use

c) where are they needed (plant, warehouse, office, etc.) as this determines where they need to be delivered

d) why are they being used over another good or service, as this determines key features or functions or specifications that the organization needs to ensure are maintained

e) when are they needed, as this specifies delivery schedules that need to be met

f) how are the goods or services going to be used as this dictates what specifications must be met or certifications that must be possessed (and explicitly referenced in the contract)

3) A good contract addresses the actionable risk mitigations that are to be adhered to by both parties to minimize the chances of a risk event significantly impacting or disrupting the business, even if it’s just timely notifications of an event happening or not happening.

Shift happens, and then sh!t happens. It’s reality. Blaming someone doesn’t fix it. Nor does having an out when the supplier doesn’t deliver on time, because chances are, you still need the goods or services, by a certain time, or your business is going to end up in the sh!tter when you can’t deliver to your customers because you won’t get paid (best case), and might get sued (worst case). And even including a legal clause on damages that allows damages to be passed through is rather useless, because, chances are, your supplier is living order to order and couldn’t afford to pay your legal fees and/or any judgement against you, which still leaves you on the hook.

Furthermore, any Force Majeure that you include in your customer contracts won’t protect you if you didn’t make all reasonable efforts and/or only you were affected while your competitors served their customers with similar products and services just fine without interruption.

You need to understand not only what can go wrong, and if there’s anything the supplier can do to prevent it or deal with it when it does, but also how long it will take you to find another source of supply if the supplier can’t deliver and make sure you have enough notice to do so if that is the only option available to you.

For example, if you need a custom manufactured product where it takes a new supplier ten weeks to upgrade a production line because it takes six to eight weeks to get the equipment, install it, and then test it; and it would take you two weeks to go to the next best supplier, get a contract, and get started, then you need three months lead time if your current supplier can’t deliver. In this situation, you need your supplier to let you know of any potential delays as soon as they get foreknowledge, and then let you know as soon as they won’t be able to manufacturer. This means that you might need to specify in the contract that, as soon as one of the supplier’s key tier suppliers is a week late on notifying the supplier of a shipment, they notify you that they may not be receiving a critical part or raw material on time and may not be starting your production on time. This allows you to determine whether or not this could be a risky situation and whether or not you want follow up.

You’d also want a notification if production didn’t start within a certain period of time from the expected production date, as that will dictate a late shipment. And so on.

Same for services. If you need a consultant or contractor with a certain industry certification, and the supplier only has three, and all three on tied up on a contract where it is determined they won’t be finished by the due date and cannot be redeployed on the date they were initially promised to you, you want to know the day the service provider knows they will not be able to allocate those contractors or consultants to you, especially if you can’t wait to start your project. Then you can figure out how many resources you really need to start, and use the risk mitigation clauses to go find someone else from another provider.

Again, this is not everything a contract needs, but requirements that must be met by every contract.

Digging into Manufacturing Sustainability

In our article on Solving the Sustainability of the Supply Chain is Systematically Strenuous and Surprisingly Serpentine, we noted that while there are easy two-word answers for reconfiguring the global supply chain for greater supply chain assurance and more sustainability at the 30,000 foot level, when you dig into the details, it’s not so easy as you have dozens of facets to get right to truly optimize sustainability across:

  • Support
  • Sales
  • Logistics
  • Procurement
  • Manufacturing
  • Materials

Manufacturing sustainability is much more involved than just choosing sustainable materials and focussing on sustainable design. When you are manufacturing you have to think about all of the following:

  • Materials: are the materials renewable, reclaimable, recyclable, or compostable — if not, the materials are not sustainable
  • Design: is the design using as many sustainable materials as possible; minimizing the use of non-renewable materials in minimal supply; ensuring the product is designed so that non-renewable materials can be fully reclaimed / recycled; ensuring the product can be produced in a sustainable manner? etc.
  • Production: are the lines modern, minimizing energy and MRO material usage (fluids, parts that wear out, etc.), efficient, etc.
  • Waste: does the chosen production method minimize waste, i.e. if cutting, how much waste metal or wood, and can it be reused/reclaimed?
  • Energy all energy production and transmission has a Carbon cost, even solar, as there was an initial carbon production in producing the panels, thus, the production method should minimize energy utilization (especially if producing EVs … considering a battery pack can produce between 2.5 and 16 metric tonnes of carbon in its production, it’s critical all production be energy efficient)
  • Water for cooling and cleaning should be minimized as well, and, if directly reusable, reused, and then reclaimed for future reuse (through an energy efficient processing plant)
  • Workforce as there needs to be a sufficient workforce and training in place to make sure they are suitably skilled for, and efficient at, the job to minimize errors and the resulting waste that comes from every human error

Furthermore, how you think about many of these requirements differs for every type of product you are producing, and often requires extremely specialized expertise to address the design, materials, production process, and waste. Manufacturing sustainability is not easy, but if you can’t ensure your manufacturers are sustainable, then you definitely can’t claim to have sustainable Procurement.

Dear (Software) Vendor: If you Missed the Ten (+ 2 Bonus) Best Practices for Success, Time to Catch Up Now!

  • Part 1 Best Practices #1 to #3
  • Part 2 Best Practices #4 to #7
  • Part 3 Best Practices 8 to 10
  • Part 4 Bonus Best Practice #1
  • Part 5 Bonus Best Practice #2

In twenty years as an independent analyst and consultant, the doctor has never encountered a small/mid-size vendor who wasn’t doing at least one of these, usually there were a couple they weren’t doing, and the lack of these practices (and knowledge) was (and sometimes still is) holding these vendors back. In other words, you definitely should read these. We are only posting these articles once.

An Ode to Anders …

This is the story of a guy
Who tried to buy and drowned in paperwork
And while overwhelmed in bureaucracy
He decided to step up
And Focus!

How many days in a year?
He woke up with hope, but he only found tears?
Vendors could be so insincere
Making their promises never for real
As long as he stood there waiting
Finding the holes in the piece-mealed silos
How many days disappeared?
While he dealt with bad software
So what’s one to do?

POs never fare as well the next day
And your hair never falls out quite the same way
Ev’ry day yet another thing goes astray

This is the story of a guy
Who tried to buy and drowned in paperwork
And while overwhelmed in bureacuracy
He decided to step up
And Focus!

Now how many buyers would stay
Just to put up with this every day and all day?
Now how did we wind up this way
Watching our mouths for the words that we say?
As long as we stand there waiting
Finding the holes in the piece-mealed silos
How do we get there today
When we’re waiting too long for the price of our blues?

POs never fare as well the next day
And your hair never falls out quite the same way
Ev’ry day yet another thing goes astray

This is the story of a guy
Who tried to buy and drowned in paperwork
And while overwhelmed in bureaucracy
He decided to step up
And Focus!

(sung to the tune of “Absolutely” by “Nine Days”)

DO NOT CONFUSE THE ILLUSION OF UNDERSTANDING WITH ACTUAL UNDERSTANDING!

Because if you do, you will believe AI is Actually Intelligent when, in fact, as we have pointed out again and again and again, it is Artificial Idiocy, and the best modern technology only uses AI for thunking, not thinking, as thinking needs to remain the domain of us humans (before X robs us of our ability to use actual words).

Not only is there no AI, but when you type a command, there isn’t even any understanding by the algorithm of what you are asking for when you type a query into an AI tool. NONE. It’s all based on a statistical algorithm that uses pre-computed similarity probabilities to infer what you are asking. That’s not understanding. Not even close.

The Guardian recently published a long read article on Weizenbaum’s nightmares: how the inventor of the first chatbot turned against AI that anyone who is even mildly contemplating an AI tool needs to read. Slowly and carefully. Three times.

Weizenbaum, who was a mathematician, computer scientist, and a student of psychoanalysis, was one of the founders of modern artificial intelligence who not only invented the first chatbot (Eliza), but also built early (mainframe) computers (back when they used vacuum tubes and took up entire rooms) for the University he was studying at, General Electric, and the Navy. In the 1960s, he was part of Project MAC at MIT, a Pentagon program for “machine aided cognition” that perfected time-sharing, created in-system messaging (like instant messaging or early email), and created new tools for word processing.

He was also one of the first to think about the implications of Artificial Intelligence years, if not decades, before anyone else and one of the founders of computer ethics. He was a genius, and when he said that Artificial Intelligence is an “index of the insanity of our world“, he was totally right — and he was right five decades before AI became the buzz-acronym-du-jour. Few people effectively saw that far ahead in technology, so maybe we should sit back and listen. Carefully.

So please take the time to read Weizenbaum’s nightmares: how the inventor of the first chatbot turned against AI and realize that AI is not the answer. Deterministic algorithms developed by smart people that have studied the problem, tested their assumptions, and been consistently proven reliable are the answer. They may be based on machine learning, but machine learning that is expertly selected, tuned, and monitored by validation code that detects when the algorithm is not performing to expectation and interjects a human into the process. Not a multi-layered pseudo-random statistical algorithm that randomly predicts the next seven days worth of orders, starting on Monday, are 210, 198, 307, 250, 185, 250, and 3095 and thinks everything is A-OK even though the store is closed on Sunday.