automotive industry outlook - butzel long
TRANSCRIPT
© 2021 IHS Markit. All Rights Reserved.
Automotive Industry
Outlook:Staying Ahead of the Curve in a Rapidly
Changing Landscape
Mike Wall
Executive Director, Automotive Analysis
+1 248 728 8400 Direct
+1 616 446 6885 Mobile
March 2021
© 2021 IHS Markit. All Rights Reserved.
2
Addressing Strategic Challenges with Interconnected Capabilities
A World Leader in Critical Information, Analytics and Solutions
Energy
Financial
Services
Economics &
Country Risk
Engineering &
Product Design
Telecoms &
Technology
Maritime &
Trade
Automotive
Chemical
Agribusiness
Life Sciences
Climate &
Sustainability
50,000+ customers in over
140 countries
80%of the Fortune
Global 500
94/100largest US corporates
$4Bannual revenue
NYSE: INFO
© 2021 IHS Markit. All Rights Reserved.
World Economic Growth
3
Source: IHS Markit Data Insight
An
nu
al
Rea
l G
DP
Gro
wth
(in
pe
rce
nt)
-10.0
-8.0
-6.0
-4.0
-2.0
0.0
2.0
4.0
6.0
8.0
10.0
World UnitedStates
Japan Eurozone Brazil Russia India China(mainland)
2018 2019 2020 2021 2022 2023-2028World Average
2021 = +5.1%
Global Growth Improved in February; World Real GDP is Projected to Increase 5.1% in 2021
© 2021 IHS Markit. All Rights Reserved.
4
Introduction to Automotive Semiconductor: From Silicon to Cars
Foundries (front end):
TSMC, Samsung,
GlobalFoundries, UMC,
Tower, DB Hitek, SMIC
Material suppliers:
Shin-Etsu, Siltronics,
Soitec
Packaging & Test
(back-end)
Amkor, ASE, UTAC
Tier 1:
Bosch, Continental, Aptiv, Valeo,
Harman, BorgWarner, Denso…
OEMs:
VW, Toyota, Toyota,
GM, RNM…
Semiconductor Suppliers
NXP, Infineon, Renesas, Texas Instruments,
STMicroelectronics, ON Semi, Micron, Samsung...
Silicon Ingots and
Raw silicon wafersProcessed wafers
Packaged and
tested chipsElectronics Control Units*
(ECU)
Car
Service providers
* Picture from IHS Markit Teardown of
Harman – Mercedes TTG9 Head-Unit
• 1,000 – 1,400
chips / car
• $427 chip value
/ car in 2020
DaysManufacturing cycle time: Months Hours
© 2021 IHS Markit. All Rights Reserved.
Global Light Vehicle Sales
5
COVID-19 Impacts the Near-Term Outlook; Aftermath Resets Expectations Longer-Term
9294 94
-16.0%
-12.0%
-8.0%
-4.0%
0.0%
4.0%
8.0%
12.0%
50
55
60
65
70
75
80
85
90
95
100
20
02
20
04
20
06
20
08
20
10
20
12
20
14
20
16
20
18
20
20
20
22
2024
20
26
20
28
Source: IHS Markit Light Vehicle Sales Forecasts
An
nu
al
lig
ht
ve
hic
le s
ale
s (
milli
on
s)
An
nu
al g
row
th (%
)
Average growth 3.6%
100
90
77
88
MaaS: Mobility as a Service
84
© 2021 IHS Markit. All Rights Reserved.
6
First Quarter 2021 Outlook Dominated by Semiconductor Shortages; Lost Volume Increases Over Prior
Outlook as Severe Weather Effects and Japanese Earthquake Compound Challenges
Global Light Vehicle Production Overview
Source: IHS Markit
▲ South Asia raised largely on improved Indian outlook;
possibly reflecting links to Japanese and South Korea
supply chains – strong local sales are supportive
▲ MEA is boosted again on stronger Iranian outlook
▲ Current disruption does nothing to alleviate upside
pressure from inventory requirements in H2
▼ March update takes 500,000 units from 2021 outlook as
disruption intensifies in Europe, China, Americas and
Japan/Korea
▼ Challenges beyond semiconductors, plastics shortages an
emerging short-term factor, following bad sever weather
impacts in North America
▼ Many regions experiencing secondary waves of COVID-
19 infections and disruptive effects could emerge quickly,
lockdown measures tightening again in many markets,
▼ Downside risk remains in the near-term given volatility of
the situation and potential for shortages to extend deeper
into the second quarter. Expect OEMs will continue to
prioritize production of higher margin vehicles at the
expense of less important offerings
94.289.0
74.6
84.189.6 91.7 93.7
-1%
-6%
-16%
13%
7%
2% 2%
-20%
-15%
-10%
-5%
0%
5%
10%
15%
20%
25%
0
10
20
30
40
50
60
70
80
90
100
2018 2019 2020 2021 2022 2023 2024
Mill
ions
Global Production
Global Production Year over Year Change
© 2021 IHS Markit. All Rights Reserved.
7
Global Light Vehicle ProductionSemiconductor and Other Supply Chain Pressures Present Near-Term Production Challenges
• Globally nearly 1.2M units estimated to be lost
from 1Q due to semiconductor shortages
• Biggest disruptions:
• Mainland China: 350,000 units
• Europe: 282,000 units
• North America: 264,000 units
• Semiconductor shortages are not the only
influence on Q1 developments:
• Upside in China from Lunar New Year
• North America and Europe compounded by
weather and ongoing public health and lockdown
measures
• Port congestion/disruptions impacting product flow
• Extent of disruption and long lead for
semiconductors pointing to more protracted
vehicle production constraints
• Recovery opportunities dissipating
• Risk in North America for trucks and utility
vehicles amid low inventory levels
-600
-500
-400
-300
-200
-100
0
NorthAmerica
Europe MainlandChina
Japan SouthAmerica
SouthKorea
Th
ou
sa
nd
s
Net change Semiconductor impact
Source: IHS Markit
Global Light Vehicle Production: 1Q 2021 – Mar 2021 vs. Dec 2020
© 2021 IHS Markit
© 2021 IHS Markit. All Rights Reserved.
8
Source: IHS Markit
Despite Strong Q1, Full-year Outlook is Reduced on Payback Particularly with Light Commercial
Vehicles and Semiconductor Concerns
Mainland China Production Overview
▲ The economic development has been upgraded again by increasing GDP
growth prediction to 7.8% in 2021.
▲ Strong demand in Q1 2021 ahead of Lunar New Year holiday.
▲ Additional incentives have been released during National Congresses in
March, further motivating the output and sales in following months.
▲ Commercial vehicle sector responds to infrastructure investment
▼ The semiconductor shortage brings risks of plant shutdowns could further
deteriorate in Q2 2021. The impact started to expand from JV brands to
Chinese domestic brands.
▼ The polyamide (PA66) shortage owing to the snowstorm in US, would be
another interruption in H1 2021.
▼ Some fluctuations in the stock market could bring uncertainties to
potential demand.
26.6124.42 23.35
24.6626.01 26.98
28.23
-4.0%
-8.2%
-4.4%
5.6% 5.5%
3.7%
4.7%
-10.0%
-8.0%
-6.0%
-4.0%
-2.0%
0.0%
2.0%
4.0%
6.0%
8.0%
0
5
10
15
20
25
30
2018 2019 2020 2021 2022 2023 2024
Mill
ions
Yearly Production
Mainland China Production Year over Year Change
31%
407%
58%
4%
-1% -7%-10% - -5% -5% -9%-4%
-100%
0%
100%
200%
300%
400%
500%
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec
0
500
1,000
1,500
2,000
2,500
3,000
Thousands
Monthly Production Evolution
YoY Evolution 2020 2021 Estimates
2021 Forecast 2022 Forecast
© 2021 IHS Markit. All Rights Reserved.
9
Lockdowns Still Hammering Demand, Semiconductor Shortage Limiting Inventory Rebuild
Europe* (excluding CIS) Production Overview
Source: IHS Markit
▲ CY 2022 production revised up, catching-up for 2021 production losses
▲ Inventories remain at very low level as we enter Q2 2021.
▲ Government incentives support LEV sales in Western Europe
▲ Ongoing demand recovery in Turkey and in key export markets
▼ 1H 2021 production revised down over 140,000 units, with marginal
recovery through 2H 2021.
▼ Semiconductor shortage impacting virtually all operations while
lockdown measures still impact vehicle retail in parts of Europe
▼ Other supply shortages potentially disrupting production (plastics, steel)
▼ CAFE compliance remains an important challenge with risks of OEM
forcing overall volume reductions
Note: *Europe = EU27 + UK, Turkey and Serbia. Not including Commonwealth of Independent States
20.08 19.20
14.8517.00
18.23 18.53 18.55
-2.5%-4.3%
-22.7%
14.5%
7.3%
1.7% 0.1%
-25.0%
-20.0%
-15.0%
-10.0%
-5.0%
0.0%
5.0%
10.0%
15.0%
20.0%
0
5
10
15
20
25
2018 2019 2020 2021 2022 2023 2024
Mill
ions
Yearly Production
EU (excluding CIS) Year over Year Change
-18%-18%
42%
2022%
108%
26%
3%
-2%
-2%
-1%-6%
4%
-500%
0%
500%
1000%
1500%
2000%
2500%
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec
0
500
1,000
1,500
2,000
Thousands
Monthly Production Evolution
YoY Evolution 2020 2021 Estimates
2021 Forecast 2022 Forecast
© 2021 IHS Markit. All Rights Reserved.
10
US: Light Vehicle Sales OutlookShifting from a COVID Contraction to a Post-COVID Recovery
Economic issues
• US consumer outlook to improve, though
recovery skewed
• Risk for additional COVID-19 related
lockdowns diminishing
• Longer term pressure on OEM profitability
• Opportunities to find right customer based
on vehicle age and scrappage
• Launches to accelerate, mix increasingly
attractive
• Vehicle development costs rising
• Regulatory compliance
• Consumer contenting
• Market attractive from consumer
perspective, risk shifting to lenders
• Low interest rate environment
-25%
-20%
-15%
-10%
-5%
0%
5%
10%
15%
20%
0.0
2.0
4.0
6.0
8.0
10.0
12.0
14.0
16.0
18.0
20.0
2000 2005 2010 2015 2020 2025
Milli
on
s
%∆ Y/Y Base (50%) Optimistic (25%) Pessimistic (25%)
Source: IHS Markit
US Light Vehicle Sales
© 2021 IHS Markit
© 2021 IHS Markit. All Rights Reserved.
11
Semiconductor ShortagesShort-Term Issue with Lasting Implications
Impact and issues:
• Short lead time notice
• Who and when remains a question
• Downtime
• Reduced work schedules
• Cancelled overtime
• Production rationalization efforts
• First-half 2021:
• Semiconductor shortage impact
• End of legacy models
• Slower ramp-ups
• Annual comparisons masks issue
• Second-half 2021:
• Volume recovery beginning to look grim
bolstering outlook for 2022
• Summer shutdowns are a wild card
-300
-250
-200
-150
-100
-50
0
50
100
150
200
0.0
0.2
0.4
0.6
0.8
1.0
1.2
1.4
1.6
1.8
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec
Th
ou
sa
nd
s
Mil
lio
ns
Y/Y ∆ Mar-21 Dec-20
Source: IHS Markit
North America Light Vehicle Production: 2021
© 2021 IHS Markit
1H: -754K
2H: +349K
-400K
15.8M
© 2021 IHS Markit. All Rights Reserved.
17.817.1 17.0
16.3
13.0
15.8
16.8 16.6 16.5 16.5 16.5 16.6 16.8
0.0
2.0
4.0
6.0
8.0
10.0
12.0
14.0
16.0
18.0
20.0
2016 2018 2020 2022 2024 2026 2028
Mill
ions
12
North American Light Vehicle Production
Source: IHS Markit
North American Light Vehicle Production
© 2021 IHS Markit
Deep COVID-Related Cut for 2020 but a Quicker Snapback than the Great Recession*
Short-term
▪ COVID-19 implications
▪ -3.3M units or -20% in 2020
▪ Program delays or timing slippage
▪ Component shortages, labor availability,
raw material pricing, etc. result in near-
term downside risk
▪ Inventory depletion and restocking
Long-term
▪ Capacity: How to get to 17M units?
▪ Expansion and maximization
▪ BEV implications; demand, redundancy, policy
actions
▪ Growth in regionalization
▪ Phase two Mexico developments
▪ Life-cycle pressures
▪ USMCA and trade implications
*
© 2021 IHS Markit. All Rights Reserved.
13
North America Light Vehicle Production2021 vs. 2020
• Production growth as demand
recovers from COVID-19 impact
and inventories are restocked
• GM – Hummer EV, Bolt EUV,
BrightDrop EV600
• Ford – Bronco and Maverick
• Stellantis – Grand Cherokee and
Wagoneer/Grand Wagoneer
• Key New Domestic launches
include BMW 2-Series, Honda
Civic; Hyundai Tucson; Lordstown
Endurance; Lucid Air; Nissan
Frontier & Pathfinder; Rivian R1S
& R1T; Tesla Cybertruck, Model S
& X; Toyota Corolla Cross &
Tundra; Audi Q5 Sportback, etc.Source: IHS Markit Light Vehicle Production Forecast
OEM2021F
(000s)
2020F
(000s)% ∆
∆ Units
(000s)
GM 2,764 2,388 15.7% 376
Ford 2,562 1.985 29.1% 577
Stellantis 2,232 1,808 23.5% 424
Detroit 3 7,558 6,181 22.3% 1,377
Toyota 1,968 1,600 23.0% 368
Honda 1,582 1,451 9.0% 131
Renault/Nissan 1,238 953 29.9% 285
Hyundai 878 698 25.8% 180
Asian 4 5,666 4,702 20.5% 964
VW 680 551 23.4% 129
BMW 476 417 14.1% 59
Daimler 352 334 5.4% 18
German 3 1,508 1,302 15.8% 206
Others 1,030 839 22.8% 191
Total 15,762 13,024 21.0% 2,738
© 2021 IHS Markit. All Rights Reserved.
Production Outlook
14
North American Light Vehicle Production by Country
8.5 7.6
10.1
2.02.1
2.42.1
2.2
2.9
-40%
-30%
-20%
-10%
0%
10%
20%
30%
40%
50%
0
2
4
6
8
10
12
14
16
18
20
Y-O
-Y %
Ch
an
geO
utp
ut
(mil
lio
ns)
Mexico Canada US Change 2019 – 2028
-449,000
CAGR = -3.0%
76,000
CAGR = 0.2%
16.2
13.0
16.5
12.611.9
15.4
10.9
2.4
2.9
16.8
11.4
1.5
3.9
Source: IHS Markit Light Vehicle Production Forecast
11.3
3.9
1.3
17.0
11.1
3.9
2.0
+851,000
CAGR = 0.9%
16.3
10.6
3.8
1.9
8.6
3.0
1.4
15.8
10.8
3.5
1.5
16.8
11.6
3.6
1.6
© 2021 IHS Markit. All Rights Reserved.
15
North American Light Vehicle ProductionCOVID-19 Impacts Everyone, yet Customer Mix Continues to Shift
Source: IHS Markit
North America Light Vehicle Production
© 2021 IHS Markit
9.28.6 8.6
8.0
6.27.6 8.0 7.9 7.7 7.7 7.6 7.8 7.9
8.58.4 8.1
8.0
6.5
7.78.1 7.9 8.1 8.1 8.2 8.2 8.3
0.0
2.0
4.0
6.0
8.0
10.0
12.0
14.0
16.0
18.0
20.0
2016 2018 2020 2022 2024 2026 2028
Mil
lio
ns
Detroit 3 Start-ups Transplants
Divergent trajectories – 2019 to 2028
▪ Domestics
▪ -107K units or -2.7%
▪ Offshoring to China
▪ Increasing shift to trucks
▪ More closely tied to US sales
▪ Build where you sell
▪ Transplants
▪ +300K units or +3.1%
▪ Localization
▪ Capacity expansion
▪ Global sourcing and increasing exports
▪ Start-ups
▪ +286K units or +73.6%
▪ Tesla largest component, although
offshoring is slowing growth
▪ Monitoring other start-ups
© 2021 IHS Markit. All Rights Reserved.
16
Start-upsRisk vs. Reward from A to Z Amid Speculative Investment
Source: IHS Markit
North America Production
© 2021 IHS Markit
0
20
40
60
80
100
120
140
2016 2018 2020 2022 2024 2026 2028
Th
ou
sa
nd
s
Rivian Lucid Canoo Lordstown Arrival Zoox
• Arrival
• Bus and van markets
• Low volume micro-factories
• Canoo
• Subscription based business model
• MPV, sedan, pickup, van
• Lordstown Motors
• Pickup and van with commercial focus
• Lucid Motors
• Luxury, performance focus
• Expansive product plans to 2020
• Rivian
• Premium, off-road focus
• Partnerships: Amazon, Ford
• Zoox
• Company ecosystem with L5 EV/AV
© 2021 IHS Markit. All Rights Reserved.
7 96 4 5 6 7
12
3 3 5
54
1 7 6 34
3
4 2
6
1415
15
18 20 2525
14
1818
12
2628
22
2931
3436
29
2523 23
0
5
10
15
20
25
30
35
40
45
2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2028
Car Pickup Utility
17
North America Light Vehicle Production Launches by Vehicle Type
Source: IHS Markit
North America Light Vehicle Production Launches
© 2021 IHS Markit
Capital Needs Intensify with New Launch Activity; Timing Delays Due to COVID-19
Watch for delays,
restructuring or cancellation
of future programs
Volatility Extends to Launch Timings
▪ Launches in late 2021, 2022 and 2023 can be
subject to further delay, reprioritization, rescoping
or even cancellation
▪ If possible, OEMs will review portfolios to extend
current vehicles – potentially integrating new
minor/moderate facelifts to extend the lifecycles
▪ Utility vehicle expansion continues
▪ Competition weighs on leaders
▪ Splintering segmentation with pricing/margin/
volume pressure
▪ BEV activity
▪ 55 all-new nameplates
▪ 13% or 2.2 million units of North American
production by 2028
▪ Product redundancy: ICE to BEV
▪ Over 100 more BEVs as import or part of
multi-energy nameplates
▪ Legacy programs as a hedge
© 2021 IHS Markit. All Rights Reserved.
18
North American ProductionTail Wagging the Dog, More BEVs than Consumers to Start
7 9 18 32 49 61 70 76 80 810
10
20
30
40
50
60
70
80
90
0
500
1,000
1,500
2,000
2,500
2019 2021 2023 2025 2027
Thousands
# of BEV models BEV volume
Source: IHS Markit
Battery Electric Vehicle Production and Model Count
© 2021 IHS Markit Source: IHS Markit
BEV Share of Production and Volume per Nameplate
© 2021 IHS Markit
0%
2%
4%
6%
8%
10%
12%
14%
0
10
20
30
40
50
60
70
2019 2021 2023 2025 2027
Thousands
% BEV production in NA Vol. per BEV nameplate
BE
V M
odel C
ount
© 2021 IHS Markit. All Rights Reserved.
28%
14%36%
11%
11%
CY30
19
Greater ChinaEuropeNorth America
Powertrain Technology OutlookRegional Preferences and Incentives Result in a Varied Propulsion Mix; Watch the Model Count!
• SAFE rule = 1.5% stringency rate increase/yr
vs. ~5%/yr for CAFE; Biden changes coming.
• PHEV and HEV production mix reduced post
2022, improved outlook for BEV.
• Propulsion forecast largely unchanged as little
relief expected for CO2 compliance.
• Target reduction of 15%/37.5% in 2025/2030
from 2021 level, potential for tougher targets.
• Extended NEV subsidies/exemptions weaken
pre-buy in 2020 & boost demand in 2021-22.
• NEV subsidies will come under increasing
pressure; China to focus on tightening regs.
9%8%
9%
12%62%CY25
3% 3%3%
41%50%
CY20
18%
14%
29%4%
35%
CY25
4% 7%
8%
11%
70%
CY20
31%
16%36%
3%14%
CY30
19%
11%
22%
16%
32%
CY25
5% 3%4%
39%49%
CY20
17%
12%
12%6%
53% CY30
© 2021 IHS Markit. All Rights Reserved.
Thank You!
Mike Wall
Executive Director, Automotive Analysis
+1 248 728 8400 Direct
+1 616 446 6885 Mobile
20
IHS Markit Customer Care
Americas: +1 800 IHS CARE (+1 800 447 2273)
Europe, Middle East, and Africa: +44 (0) 1344 328 300
Asia and the Pacific Rim: +604 291 3600
Disclaimer
The information contained in this presentation is confidential. Any unauthorized use, disclosure, reproduction, or dissemination, in full or in part, in any media or by any means, without the prior written permission
of IHS Markit Ltd. or any of its affiliates ("IHS Markit") is strictly prohibited. IHS Markit owns all IHS Markit logos and trade names contained in this presentation that are subject to license. Opinions, statements,
estimates, and projections in this presentation (including other media) are solely those of the individual author(s) at the time of writing and do not necessarily reflect the opinions of IHS Markit. Neither IHS Markit
nor the author(s) has any obligation to update this presentation in the event that any content, opinion, statement, estimate, or projection (collectively, "information") changes or subsequently becomes inaccurate.
IHS Markit makes no warranty, expressed or implied, as to the accuracy, completeness, or timeliness of any information in this presentation, and shall not in any way be liable to any recipient for any
inaccuracies or omissions. Without limiting the foregoing, IHS Markit shall have no liability whatsoever to any recipient, whether in contract, in tort (including negligence), under warranty, under statute or
otherwise, in respect of any loss or damage suffered by any recipient as a result of or in connection with any information provided, or any course of action determined, by it or any third party, whether or not based
on any information provided. The inclusion of a link to an external website by IHS Markit should not be understood to be an endorsement of that website or the site's owners (or their products/services). IHS
Markit is not responsible for either the content or output of external websites. Copyright © 2018, IHS MarkitTM. All rights reserved and all intellectual property rights are retained by IHS Markit.
Seeing through the Fog of the Battle of the Forms
Sheldon Klein | Butzel Long | [email protected]
The Battle of the Forms
[a/k/a, I Agreed to What???]
© Butzel Long 2021
• Understand the basics of contract formation.
• Understand what is the “Battle of the Forms”.
• Learn the basics of how to engage in the “Battle of the
Forms”
• Understand the contract terms that are not in either side’s
form
© Butzel Long 2021
Goals for the Presentation
Contract Formation
© Butzel Long 2021
•“Offer” → “I Accept Your Offer.” → CONTRACT
•If Acceptance ≠ Offer, no Contract (Counter-offer).
Law School, Contracts, Day 1: “Mirror Image Rule”
•Form language exchanged without ever resolving, or even paying attention to, the differences
•Ignores reality to say “no contract” when parties are doing business and think there is a contract.
Real World
Legal rules for (trying to) sorting out the mess
“Battle of the Forms”
Do I have a Contract?
§ 2-204. Formation in General.
• (1) A contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract.
• (2) An agreement sufficient to constitute a contract for sale may be found even though the moment of its making is undetermined.
• (3) Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.
© Butzel Long 2020
Rule 1: Lawyers are Good.An Actual Agreement is Better.
© Butzel Long 2021
“There is no language that a lawyer can put on
a form that will always assure his client of
forming a contract on his client's own terms. . . .
If one must have a term, that party should
bargain with the other party for that term; a
client should not get it by his lawyer's sleight of
hand. If a seller must have the term to reduce
liability but cannot strike a bargain for it, his
only answer may be to raise his price, buy
insurance, or—as a last resort—have an extra
martini every evening and do not capitalize
the corporation too heavily.”
In a Nutshell
© Butzel Long 2021
“Everything in war is very simple. But the simplest thing is difficult.”
Carl von Clausewitz
Goods or Services?
© Butzel Long 2021
• Battle of the Form rules are different for Goods and Services.
• Goods if you are buying raw parts and then selling the finished parts
• Services if you are paid a fee for finishing your customer’s parts
• If mix, “predominant purpose” of the transaction.
Offer or Acceptance?
© Butzel Long 2021
• Fundamental to contract formation and battle of the forms analysis, but application is slippery
• “An offer is the manifestation of willingness to enter into a bargain, so made as to justify
another person in understanding that his assent to that bargain is invited and will conclude it.”
[R2k 24]
• “Acceptance of an offer is a manifestation of assent to the terms thereof made by the offeree
in a manner invited or required by the offer.” [R2k 50]
• Is an RFP or ITB an offer or nothing?
Is Bid or Proposal an offer, an acceptance, a counter-offer or nothing?
Is PO issued after Bid or Proposal an offer, an acceptance, a counter-offer or nothing?
If You Sell Services
© Butzel Long 2021
If You Sell Goods
© Butzel Long 2021
Seller’s Quotation Best Practices
© Butzel Long 2021
• Designate it as an “offer.”
• Have Terms and Conditions of Sale
• Incorporate them in your Offer, your Acceptances and your Invoices.
• Always use clear and precise language.
• Do not refer to a RFQ or other external documents in general but only to the
necessary specific provisions (e.g., Buyer’s technical specifications).
• Object to any additional or different terms in prior or subsequent documents.
• Get in the last word.
Sample Quotation
© Butzel Long 2021
Possible Language for Quotation forms
This is an offer. This quotation and any resulting contract are subject
to the Seller’s General Terms and Conditions of Sale placed on the
reverse side, elsewhere in this quotation or Seller’s website, and
available by written request. Notice is hereby given of objection to
any additional or different terms in any acceptance or other
response.
What Documents Count?
© Butzel Long 2021
• Some of the documents that could constitute the “Theatre of the Battle” are:
• RFQs and Quotations
• Sourcing Letter
• Purchase Order
• Buyer’s and Seller’s Standard Terms and Conditions
• Documents incorporated in the contract by reference
(e.g., drawings, specifications, standards, and quality manuals.)
• Invoice
• Correspondence and E-mails
Beyond the Four Corners
© Butzel Long 2021
• The law can supply “gap fillers” for missing terms (especially for Goods):
• Price (reasonable);
• Number of Deliveries (one delivery);
• Place of Delivery (Seller’s place of business);
• Time of Delivery (reasonable);
• Length of Contract (reasonable);
• Time of Payment (due at the time and place of the Buyer’s receipt of the goods); and
• Risk of Loss (passes on the Buyer’s receipt of the goods).
• Warranties (implied good title, non-infringement, marketability, and possibly fitness for
particular purpose).
Other Sources of Contract Terms
© Butzel Long 2021
• The course of dealing between the parties in other contracts.
• The course of performance by the parties in the same contract.
• Industry Standards (“Usage of Trade”).
• Documents referenced in the contract (e.g., quality manuals).
• So where do we look for contract terms:
• Mutually agreed.
• GAP fillers.
• Four sources above.
• Winners in the Battle of the Forms.
Take Aways
© Butzel Long 2021
• The Battle of the Forms is a last resort. Whenever possible, negotiate a written agreement that includes your “must haves.”
• However, this is not always possible. Therefore, it is important for you, and your people in the trenches, to understand the “rules of engagement.”
• Well written agreements are a cost-effective risk management tool.
• You cannot control the terms if you don’t have them. Have and use well-written Terms of Sale
• Do not blame the law. You volunteer for battle by beginning performance without a clear, acceptable agreement.
“The events which can not be prevented, must be directed.”
Klemens von Metternich
QUESTIONS?
Beth GotthelfButzel [email protected]
© Butzel Long 2020
Sheldon KleinButzel [email protected]
Mike WallIHS [email protected]
DISCLAIMER
These materials and presentations are intended and
designed for informational purposes only – they do not
provide legal advice and no attorney-client
relationship is created. No liability is assumed in
connection with the use of these materials. Legal
counsel should be consulted regarding how
applicable law impacts specific situations.
© Butzel Long 2021