Tag: Contract

The Elements of a Legal Contract That Applies to Jim and Laura Scenario

A contract refers to a voluntary agreement between two or more individuals that is enforceable by law. It is a legally binding arrangement that obliges the involved individuals to complete specific tasks. It is a promise made between the involved parties that permit the courts to make a decision. The contract formation normally needs an offer, consideration, acceptance, free consent, capacity, certainty, and mutual assent of people; two or more to be bound.  The contract form might be oral, written, and by conduct. Each agreement needs to have the essential elements to be regarded as a valid contract. The agreement entails a valid offer which is a promise made by one party to do or abstain from doing a particular action in the future. It also needs to have a consideration which is something of value promised in exchange for the particular nonaction or action. Acceptance is a contract element that shows approval of the contract that can be expressed via performance, deeds, or words (Solan, 2007).

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Normally, acceptance must reflect the offer terms, otherwise, the acceptance is perceived as a counteroffer and rejection. Those making the contract must be of legal capacity, meaning they are not mentally impaired, not minor, nor bankrupt, and are not prisoners. Entering a contract must also involve consent, which is the free will and effective understanding of what every involved party is doing. The consent needs to be genuine to eliminate duress, misleading conduct or misrepresentation, unconscionability or undue influence, and unfair terms of a contract in standard form contracts. Certainty is an element that assesses whether the contract is certain or complete. If uncertain there is no binding contract. Mutual assent means that the contract must be proven objectively, which is mostly demonstrated by showing offer and acceptance (Yonjan, 2019).

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In this particular case, there is an offer which is purchasing the selected car, with the first step involving paying a $100 deposit to hold the car for one day, with an assurance that the money is refundable. There is also an acceptance which is shown by Jim and Laura giving the $100 deposit. There is also a consideration in this case, which is the exchange of money for a car. Those involved have the legal capacity to participate in the contract as they are mature and mentally okay. However, there is an issue with free consent and certainty. The contract was verbally done, where Jim and Laura claim to have been told that the $100 deposit was refundable, which Stan, the salesperson seems to ignore, and appears to be forcing them to take the car even after changing their mind.

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This means that Jim and Laura’s acceptance was due to deception, making this contract questionable. Also, there is no clear discussion and agreement on the payment plan. The only discussed amount was the deposit, without clear agreement on any initial payment or installment payment. Moreover, this being a sale of a big asset, it cannot be done verbally. Transaction evidence and purchase agreement would be needed. The contract lacks mutual assent since what Jim and Laura thought to be part of the terms and what influences them to commit now seems to be disregarded.

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Was there a Contract for the Purchase of the Automobile?

In this particular case, the agreement seems to lack some vital elements that would make it a binding contract. Although Jim and Laura demonstrated acceptance of the offer by making a $100 deposit, it emerged that they were duped to think that the amount was refundable, if they happened to change their mind. The variation in their understanding and the salesman’s claim means that the agreement was not based on free will and certainty. Probably, with a clear understanding of terms, Jim and Laura could not have accepted the offer. Moreover, there is no proof to show that Jim and Laura made any payment to Stan’s salesperson, not even a simple receipt.

Although verbal contracts are binding, they are rarely used in huge purchases, especially in hire purchases. A written agreement with a clear payment plan, and terms under defaulting, and what transpires in breach of contract were highly needed before Jim and Laura could commit. A well-documented agreement was also needed to ensure follow-up and to ease the resolving of disputes. This means the current verbal agreement cannot be used in any court of law, especially since the parties involved seem to vary in their verbal terms of the agreement.

Facts from the Jim and Laura Scenario that Support No Contract Exists for the Purchase of the Automobile

According to the scenario, Jim and Laura went to the showroom with intention of getting a good car for their daily travel. They tested a few vehicles before settling on a blue four-door Sedan. They agreed to pay Stan Salesman $100 for the seller to hold the car for a day. The payment was without a receipt, but with a verbal guarantee that the amount will be refunded. This statement clearly shows that Jim and Laura were only giving $100 to remove the car from the market for one day, as they make a decision, after which they would come back to make the actual agreement or turn down the offer completely. There was no purchase contract as there was no clear agreement on what will happen after that one day was over.

Also, the amount was initially said to be refundable but later said to be part of the car payment. Again this was without any signed supportive document or any legally binding purchase commitment document. The lack of agreement on what $100 was meant for and change of terms shows that the salesman was deceiving Jim and Laura, and hence they made this commitment after misinformation, deception, or misinterpretation of terms, which amount to the lack of free consent in the agreement. So legally, there is no written proof (receipt) to show Jim and Laura gave $100, nor its main purpose, there were no witnesses to support each side’s claims, and there is a contradiction on the purpose of the money. Therefore, there is no binding contract (Wishnia, 2020).

Contract Clause

The contract clause to be considered in this case is dispute resolution clause. Dispute resolution clause is a section in a contract or agreement that sets out the techniques for solving disputes between two or more contractual parties. The agreement scope is resolute in clause drafting. The dispute resolution clause requires to be unambiguous and clearly drafted. This highly determined if the clause can be used to resolve any contractual conflict or can just be dismissed as irrelevant due to a high level of ambiguity. A good dispute resolution (DR) clause constitutes of contingent in what the parties anticipate to attain from the inclusion of clause of such kind in their agreement.

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The dispute resolution clause need to forestall future issues and efficiently have provisions which resolves the issue satisfactorily in a way that is advantageous to both parties. Therefore, a suitable dispute resolution clause will be founded on a different variables which include the parties’ relationship and interest, the contract nature and subject matter and the respective bargaining power of the parties.  In this regard, DR clause need to be deliberately drafted, instead of routinely, with every contract customization in order to attain the most desired outcome of the parties. Thus, there is no any single DR clause which can handle all agreements (Bihancov, 2014).

Legal Issues regarding Dispute Resolution Clause

According to Bihancov (2014), a suitable dispute resolution clause must be enforceable, be a condition model to litigation, be certain and clear as to the process and mechanism to be followed, be able to foresee the issues that might arise as far as possible and be able to preserve the association of disputing parties. Different to arbitration, there is basically no basis of legislative for an agreement enforcement to mediate. Thus, a good DR clause which integrate processes of dispute resolution for instance mediation must be created to address the enforceability needs, else the insertion of a clause of that nature is objectively purposeless. The DR Clause enforceability guarantees that parties try to perform their duties under the DR clause prior to considering litigation. The probable outcomes from obligations of breaching under the DR clause gives incentives to try to resolve a conflict without litigation.

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An enforceable DR Clause should not expel the court’s jurisdiction, but instead it should state clearly that the process of dispute resolution is a situation practice to litigation. This clause must be clear on the procedure to be followed to resolve a dispute and the strategies to be used to choose a third party to assisting in resolution process. The clause must also provide a clear steps to be taken in case there will be no a compromising position attained with the intervention of the third party. The clause must foresee all possible problems that they may occur which may result into unresolvable disputes in the future. Problems definition and dispute resolution clause drafting must be done to suit the expected problems which will highly be determined by the interest of individuals needing protection and representation as well as the agreement. This is a very extensive scope that expects any probable problem that include contract breach, subject or validity matter associating to the agreement, and contract termination. Finally, an enforceable clause need to enhance the preservation and maintenance of the contractual parties’ relationship. Designing the dispute progress via a suitable dispute resolution clause might assist the parties in preserving their association and finding it to be more valuable as compared to the matter of the dispute (Bihancov, 2014).

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Application of Dispute Resolution Clause in Real property Management

In real property management, disputes are common between the landlord and the tenants based on different aspects. These aspects include the use of the property, the rent payment, property maintenance, property lighting, and the shared utilities among other disputes. Basically, the tenant and the landlord may develop a contract on how to resolve their issues. The contract may be drafted by the landlord and a tenant may be required to sign upon agreement. In this case, signing of the contract implies that the tenant agree to be guided by the structured contract. In case of unresolvable dispute, both the tenant and the landlord will employed the dispute resolution clause to identify the third party to assist in resolving the issue. The third party will then review the contract that binds the two and listen to the case. In this case, the third party will try to assist them resolve the case. In this case, the two parties will be anticipated to compromise to reach an agreement.

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The dispute resolution clause will be used to ensure that the dispute is settled without destroying the association between them, since they both need each other. In case the problem is not resolved even with the aid of a third party. In case the problem even with the aid of the party, the dispute resolution clause, the clause should guide on how they two can settle their issue in a litigation. However, this will try to be avoided by ensuring that the clause addresses all problems that can occur between a landlord and the tenant or a buyer and a seller in case the property is being sold (Scott, 2014).

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Sometimes contracts are created verbally, without the parties involved recording them in writing. Such contracts are referred to as oral contracts. Enright (2018) defines oral contracts as verbal agreements that may be legally binding. Similar to written agreements, the involved parties enter into an oral contract to do or not to do a particular obligation. Notably, there are two key differences between oral and written contracts. The first one is that an oral contract is a verbal agreement. The second one is that there is no further evidence to prove that an oral contract was formed apart from the parties that formed it or witness who heard its creation. Due to their undocumented nature, oral contracts often creates uncertainty regarding what exactly did the parties involved agree to and the intentions set when entering into the agreement.

Read also The Statute of Frauds – Oral Contracts

Enforceability of Oral Contracts

            Enforceability is dependent on how well the agreement meets the necessary requirements that must be met to form an oral contract. Three basic requirements must be met to render an oral contract legally binding. Firstly, the contract’s terms must be valid and legally enforceable. Secondly, the contract must contain the necessary components found in all contracts: offer, acceptance, consideration, and mutuality. Thirdly, the agreement must not violate existing laws or regulations established to prohibit oral agreements, such as the contracts that fall under the Statute of Frauds (Enright, 2018). If an oral contract meets these requirements, then it is enforceable in the United States in many circumstances.

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Also, as with all other contracts, the parties involved must be competent and legally qualified to form a valid contract. A Court cannot enforce an oral contract if one or both parties are not competent or lacks the legal capacity to create the contract. Examples of when a court may consider the parties to lack competence or capacity include; (1) if one or both parties formed the contract while under the influence of alcohol or any other impairing substance, (2) of one or both parties were below the legal age at the time they formed the contract, and (3) if one or both parties are mentally incompetent (Snyder & Burge, 2017). Therefore, an oral contract might meet all the above-described requirements, but if one or both parties are incompetent or not legally qualified to form a contract, then it becomes unenforceable.

 Besides the above highlighted basic requirements, there is another set of factors that can be useful in case either party has to prove a verbal contract exists. Firstly, during the creation of a verbal contract, it is good to have a witness present. Secondly, the parties can create or preserve any physical evidence associated with the agreement, such as letters, receipts, emails, et cetera. Lastly, it is worth noting that oral contracts operate best when there is a tangible end result that can prove its terms were carried out. For instance, an oral contract to sell or buy a given product or service (Snyder & Burge, 2017). Consideration of these aspects can prove significantly useful for proof and future testimonial purposes in case of a breach.

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            Another issue that affects the enforceability of oral contracts is the Statute of Frauds, which was established to prevent fraud. The statute dictates that certain types of contracts must be in writing to be enforceable. These contracts involve agreements dealing with land, marriage, paying off debt, property transfer, contracts lasting more than one year, real estate leases, contracts lasting longer than the participants’ lifespan, real estate sales, and property transfer (Monateri, 2017). If an oral contract fits into one of these categories, a court will not enforce the agreement.

            Bottom line, an oral contract is enforceable if it meets all the necessary requirements of a contract, including an offer and acceptance, entails a legal subject matter, has complete and clear terms, and there is voluntary consent by both parties (who must be competent and have the legal capacity to create contracts) (Monateri, 2017). However, whereas oral contracts are enforceable, if the terms of the agreement are complex and hard to understand, or one or both parties does not understand whether the contract exists, or the subject matter of the agreement falls under the Statute of Frauds, then it is not legally binding (Snyder & Burge, 2017). Moreover, when a verbal contract breach occurs, it is difficult for the parties to prove that the agreement existed. Often, cases involving breach of oral contracts require proof of performance to show that there was evident reliance on the agreement (Monateri, 2017). For this reason, courts prefer that parties who wish to enter into a contract formalize their agreement in writing.

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Implied Contracts

            Often, people misunderstand the scope of oral contract by regarding implied contracts as verbal agreements. However, an implied contract differs from a verbal agreement. An implied contract refers to a legally binding obligation derived from one or more parties’ conduct, actions, or circumstances in an agreement. The contract is assumed to exist, although there is no written or verbal confirmation (Monateri, 2017). For instance, in healthcare settings, it is implied that a practitioner will act in the best interests of a patient. It is also implied that the patient will pay the proper fees for the services they receive. Although there is no written or verbal agreement to these terms, it is implied that both act accordingly.

There exist two types of implied contracts, namely: (1) implied in fact and (2) implied in law (quasi-contract). With implied in fact contract, the contracting parties act in a manner that indicates that they intend to be in an agreement with each other. The health provider-patient interaction provided above is an example of an implied by fact contract. On the other hand, are those agreements that the court is requires to uphold justice by calling for the formation of an implied contract (Monateri, 2017). For instance, if an individual benefits from another person without having legal entitlement, the law will require that the enriched party make restitution to the injured party even if there is no existence of a written or oral contract.

Conclusion

To sum up, oral contracts are enforceable in the US as long as they meet all the requirements for a legally binding agreement. However, their enforceability poses a considerable challenge since it is hard to prove their existence as they are no written proof. Additionally, if a verbal contract subject matter falls in the categories listed in the Statute of Fraud, it is unenforceable. Given the challenge of proof associated with oral contracts, it is advisable to opt for written agreements.

Successful completion of any project highly depends on the success of the procedures put in place to enhance project development. Some of the most important procedures that determine project success include contract management, procurement, proposal assessment, and following the right contract awarding procedure among others. In most cases, the company managing a project needs to work with the vendor to ensure that all the required supplies are provided on time and in the right quality and standards. This means successful completion of the project does not only need having the right skill or project team players, but also ensuring effective procurement procedures. Poor procurement procedures cannot only impact the project completion time, but also the budget. It is therefore important for the project team to ensure to the right vendors are selected to complement their effort in successful project completion. A contractual relation should also be established to ensure that vendors are guided by legal terms and that they are held liable for any form of kind of loss that originates from breach of the contract. This paper discusses various subtopics that are related to ensuring proper understanding of contract formation and working with vendors to ensure successful completion of business projects. 

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Procurement and Contract Management and their Importance to the Business World

Procurement refers to the structure that typifies the administrative system sanctioned by customers for the project procedures execution and subsequent project management. The procurement process is regarded as an all-inclusive process in which designers, engineers, constructors, and other consultants offer to give services for construction and proposal to conduct a complete project to the customer. According to Dagba and Dagba (2019), a procurement strategy involves several processes. These processes are normally progressive and interconnected in nature, and their efficiency and effectiveness have a significant influence on the flop or achievement of projects. The processes include the pre-acquisition phase, contract award and tender process, supplier, and contract management. Each one of these processes needs a careful and specific design with the ability to give assurance of the best probable results (Dagba & Dagba, 2019).   According to Dagba and Dagba (2019), procurement contains the action applied by the purchasing company to integrate supply chain to manage time, lower cost, and enhance productivity. Procurement also ensures transparency in the purchasing process, giving high value for money. Procurement practices are said to maximize the profits bottom line via cost minimization which is a critical indicator for the fruitful business results.

Contract management refers to the practice that gives assurance to both interested groups to an agreement that fulfills their separate duties effectively and completely, to offer the operational goals essential from the agreement, and precisely to give value for money. Contract management involves active control and monitoring of the contract between the contractor and the disposing and procuring entity, to guarantee delivery of a reliable and cost-effective service at an agreed price and standard (Dagba & Dagba, 2019). According to Muhwezi and Ahimbisibwe (2015), contract management is the last stage in the process of bidding and mars the start of a contractual connection between the contractor and the disposing and procuring entity. Contract management comprises of contract administration, relationship management, and delivery management. Because of this, handling and formulating contracts is a necessary talent by the units of a public agency in the managing of the highest percentage of activities.

Contract management is crucial for procurement process success. It is a strategically important issue for all involved parties. A contract between a contractor and an entity mirrors the agent-principal relationship as described in the agency theory. The contractor possesses business based objectives while the entity desires to realize the value for money. This generates a variation in objectives, which results in uncouth behaviors that include withholding information creating information asymmetry. Contract administration which is a component of contract management aims at guaranteeing the enforcement of terms of the contract while paying attention to the attainment of stated contract output and input (Muhwezi & Ahimbisibwe, 2015). Based on agency theory interests divergence between agent and principal can be mitigated through instituting effective contract management processes, and through monitoring activities to restrict actions of opportunistic which are features of inter-functional coordination. Contract management ensures that contracted intended objectives are met. This entails guaranteeing that whatever is needed is delivered at the needed degree of quality, keeping the association constructive and open between contracting parties and guaranteeing that there is formal contract governance (Muhwezi & Ahimbisibwe, 2015). Contract management also involves constant contract review to mitigate various risks associated with procurement. These risks include price risk, proposal risk, performance risk, liability risk, contractual risk, and schedule risk. Processes of contract management such as control systems, review meetings, and contract signing explicitly define the game rules. Consequently, processes of this kind oblige inter-functional coordination. In Muhwezi and Ahimbisibwe’s (2015) view, procedures, and rules as reflected in the processes of contract management can be an effectual method for attaining inter-functional coordination.  

Request for Proposal Selection Tools and how to Improve the Assessment of Proposals

A request for proposal (RFP) directs buyers through a process of binding business requirement to technical needs, as the specific platform wherein the software requires to execute on, or the systems in which the solutions have to interface. RFP elucidates why a certain project has to be undertaken. According to Staaden and Lubbe (2006), RFP includes the statement of purpose, background information for the company issues, the RFP process description, primary requirements for services or/and products being proposed, the work statement, and software and hardware environment among others. The work statement is required to describe the work needed for product procurement and to assist vendors establish if they can deliver needed services and goods.

 A proposal is given by the vendor to the purchase stating what the vendor is willing to offer in terms of the products and price. The vendor describes the product offered, their technical and functional condition, weaknesses, flexibility, and strength among other factors that can influence purchasers’ decisions. In a proposal, every vendor is trying to sell his or her product to the purchaser. To assess the proposal, the purchaser needs to have a little knowledge of the product and the market place. This process can be improved by ensuring an intensive market survey to gather all product information in the market. This will help in basing the assessment based on acquired information. It can also be improved by effectively identifying project requirements to determine the very essential products that cannot be compromised. This will ensure that the company can check on its product requirements and always settle for what will address its need. Having a general knowledge of the market prices will also help in regulating the cost of operation among other things (Jayshingpure, Khona, Narkhede & Nagare, 2016).

The Concept of Procurement Planning and Various Strategies Necessary for Project Success

Procurement planning refers to the process employed by institutions or companies to plan purchasing activity for a particular period. This process is normally terminated during the process of budgeting. The procurement planning basic concept is that effective planning will yield cost savings, extra efficiency in business operations, and enhanced profitability. The planning process contains several steps with its bottom line being the future impact of today’s decisions (Willy & Njeru, 2014). Procurement planning involves the identification of what requires to be procured, how the companies requirements can best be met, the goods scope, the required services or work, what procurement methods or strategies to deployed, defining the time flames, and the full procurement process accountability. Requirements assessment, according to Onyango (2014), is a systematic process for addressing and determining the requirements or deviations between desired wants or conditions and current wants or conditions. This is an essential part of procurement since it is an essential tool to assist in identifying suitable solutions or interventions by identifying the issue clearly to guarantee that limited resources are channeled towards implementing and developing an applicable and feasible solution for projects identified.

Procurement planning is the basic function that sets the step for subsequent activities of procurement. An error in procurement planning contains wide implications for the organization, assessed from the two indicators of participation and accountability. The planning ideals according to Aimable et al. (2019) propose that procurement planning can be applied in a completely harmonious atmosphere. Procurement planning function endeavors to respond to the queries of what needs to be procured, when it should be procured, where it can be procured, when the resources will be accessible, the procurement techniques to be employed, efficiency in the process of procurement, how failure or timely procurement will impact the item user, the disposing and procuring entity, and individuals to be engaged in procurement. In Aimable et al. (2019) views, a good procurement plan involves an extra step of defining the process experienced to contractually appoint the suppliers. A procurement plan assists procurement entities to attain maximum expenditure value and permits the entities to address and identify all relevant problems regarding a specific procurement before the publication of procurement notice to possible services, works, and goods suppliers (Aimable et al., 2019).

Project success can be ensured by several strategies. One of these strategies is effective procurement management. The procurement process plays a great role in determining project pricing and whether it will go above or below the budget. Some of the involved procurement management activities include procurement planning, plan execution, controlling and monitoring, and closing. Planning entails documenting all procurement decisions of the project, approach specification, and identification of possible sellers. Execution involves getting suppliers’ responses, choosing suppliers, and awarding of the contract. Controlling and monitoring involve managing procurement connections, monitoring the performance of the contract, and making required amendments and deviations. The closing process entails finishing project procurements (Kafile & Fore, 2018). Another strategy to ensure project success is ensuring effective management of involved human resources and sub-contractors. One way to ensure this is by involving the right personnel with the right skills needed to complete a task. Another measure includes avoiding delays in the delivery of the required project raw materials. Delay in the provision of project resources is likely to result in delays in every other execution in the project. Effective procurement planning yields effective cost and time management. Risk management is another measure likely to enhance project success. Every project is faced by many risks that include economic risks such as inflation, raw material scarcity risks, climatic and environment risks, skills scarcity risks, and employee conflict risks among others. Such risks are likely to influence the general performance of the project. Sometimes they can cause excess delay or budget overflow. Managing risks play a great role in ensuring project success (Kafile & Fore, 2018).

How to Select the Most Qualified Vendor in a Proposal

The process of supplier selection is among the most essential tasks for every company to create an effective supply chain. It is a crucial task for companies to choose the right supplier in a competitive environment since potential supplier assists organizations to generate products of high quality at a reasonable price. To select a supplier objectively, companies employ qualitative and quantitative techniques. Optimal supplier selection can permit businesses to develop quality innovative products and attain a competitive advantage in the market. An effectual process of supplier selection plays an essential role in the success of any business and follows some significant steps. The wrong or right selection of suppliers is said to impact quality, price, and time of delivery, therefore the scope is to reduce purchase risk and create a strong association between supplier and buyer (Duica, Florea & Duica, 2018).

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The vendor selection process involves several stages. The first stage is identifying potential vendors. For a business to survive in an intensely competitive market, it is very essential not to depend on existing vendors but to also discover and search for new ones. The purchaser also must be cognizant of the requirement to guarantee that such vendor needs to qualify for needed qualifying latent vendor and job identifying. The vendor selection process can be costly and time-consuming. Purchaser frequently develops a long-term supply founded on a potential vendor. Some of the essential points to consider when selecting a vendor include new vendor importance especially superiority compared to the firm existing vendor. This superiority is measured based on innovativeness and adoption of modern technology which can result in a drastic reduction in the cost of production. Purchasers might require several vendors to reduce the risk involved as a result of supply disruption and to introduce competition (Jayshingpure et al., 2016). The other aspect to consider is the reputation of the vendor. Vendor non-performance can result in job completion failure. The purchaser should focus on avoiding vendors with a negative reputation to reduce risks of delay due to shortage or due to the provision of faulty products that must be recalled. Purchasers should also check the capability of the vendor before giving them a contract. The purchaser needs to conduct vendor qualification screening to lower vendor non-performance chances that include delivery of faulty or non-conforming products, non-delivery, or late delivery. Purchaser should also guarantee that the vendor will be a responsive and responsible partner in daily business connections with Purchaser Company. The other step involves reference checks. In this case, the purchaser needs to contact former customers to inquire about the vendor’s ability to honor terms of the contract, service performance, problems and conflicts in the past and how they were addressed, and performance in product delivery. The next step involved checking on vendor financial status. Purchaser should utilize published performance ratings of the vendor to establish the financial status of the vendor and probable financial viability in the medium to short term. For instance, the purchaser should check on recent debts by the vendor and determine the risk of the vendor being bankrupt before satisfying its duty toward the purchaser (Jayshingpure et al., 2016). Purchasers should also assess the vendor’s certification demonstrating vendor adherence to documentation, rule and regulation, training, and procedures to guarantee consistency in adhering to the set quality standards (Jayshingpure et al., 2016).

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After potential vendors’ identification, this is followed by requesting the vendors to give information regarding their services or good. At this stage, three forms of information are demanded which request for information that focuses on gaining information on different alternatives accessible to address the current needs. Requests for proposal can also be given when the purchaser contains a sense of the marketplace and a work statement that has a specific set of performance limits fulfill its need. Requests for quotes can also be given when the purchaser can create a work statement that states the real requirement of needed services or goods. The next step will be an evaluation of the vendor using a data bank with an authorized vendors’ list. Databases should contain organizational profile, technical competence, and quality assessment. This will ensure that the selected vendor is the best and can ensure timely delivery of the product and delivery of high-quality products to cater to the purchasers’ needs (Jayshingpure et al., 2016). The evaluation process should consider the vendor’s cost criteria, risk factor, technical capability, vendors profile, quality assessment, service levels, and organizational profile. The next stage will focus on the review of contract terms. The contract terms include information of both the purchaser and vendors. It also specifics what is expected of the vendor, how the contract will be executed, and the payment terms. It should also include some special clauses that address special situations such as liquidity damages clause (Jayshingpure et al., 2016). This will be followed by the contract negotiation process between the vendor and the purchasing team. Both the purchasing team and the vendor try to persuade for favorable contractual terms. The two should settle on terms that fit both of them best. The purchasing team will then select the vendor that serves them best and him or her with the contract. Sometimes, the purchasing team may offer multiple-award contracting to minimize the risk of delays or other risks that can impact the progress of the business (Jayshingpure et al., 2016).

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Evaluation of the Contract and the Legal Aspects of Procurement in a Project

A contract needs to meet a certain standard dictated by the laws. This standard ensures there are no developments of bias contracts that aim at oppressing any of the involved parties.

evaluation should thus focus on ensuring that a contract meets certain operational standards that protect the two contracting parties equally. Similar to other contracts, procurement contracts must be supported by the legal structure for them to be legally recognized and valid. One of procurement contracts’ legal requirements demands that contract should not be amended or altered by both parties and in any manner after the contract has been drafted, signed, and given to the contractor except when such amendments or alterations are done for a government benefit. It is therefore the greatest essential to guarantee that public procurement contracts are for the interest and the benefit of the general public in social services provision areas and infrastructure development.  The law also requires procuring entities to monitor the performance of contractors over the works schedule or requirements statement identified in the contract through monthly, weekly, or daily reports from the procurement entity’s supervisor accountable for works or services. If the performance of the contractor is satisfactory the contracting entity has to approve payment through certification and measurement, opposing the procurement entities will draw the attention of the contractor to any short-coming and might refuse to authorize advance payments until the defects identified are corrected (Mchopa, 2015). The law also focuses on enhancing transparency in the contract awarding process. This ensures the elimination of all corrupt deals in procurement procedures. The contract is by law only awarded to those who qualify based on merit. Law ensures fair competition. It also ensures any loan secured for project purposes should just be used for the designated purposes and nothing more. This ensures that a contract is legally bidding and with legal standards, the government ensures there is fair competition in contracts awarding (Thai, 2001).

Comparisons of the Critical Elements of a Contract Including Relationships between the Client, Supplier, Completion Terms and Payment Terms

A contract refers to an agreement involving two or more individuals that is executable by law. For a contract to be regarded as valid it needs to have five of the most essential elements which include acceptance and offer, capacity, lawful purpose, consent, and consideration. A legal contract starts by making an offer that has all essential and appropriate terms of the contract. The second party accepts the offer. After the acceptance of an offer a consideration; thing such as service or an item is exchanged among parties engaged in the contract. Both parties in each binding contract must possess the capacity or ability to comprehend the nature and terms of the contract. Every individual engaged in the contract need also to agree or consent freely to the agreement terms. Besides, each negotiated contract must be within the laws of the country, and thus ever contract must contain a legal objective or purpose (Jayshingpure et al., 2016).

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In a contract, the client refers to the individual seeking business goods or services or professional services. A client comes to the supplier with a problem to be addressed. The supplier is an individual or a business that offers specific goods or services. The client and supplier work together to develop a contract in which the supplier offers the products that the client needs, which the client makes payment based on the contractual payment terms. To ensure effective relationship the client and the supplier develop a contract that has contractual terms used to guide on what supplier is required to supply when to supply, how to supply, for how long, and in what condition among other things.

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Contractual terms also define what the client needs to fulfill in terms of payment. Terms of payment include the amount to be paid and when the payment should be made. Payment can be made after the total completion of the project or on monthly bases based on the nature of the business or halfway on the project. The completion terms go hand in hand with payment terms such that the client and the supplier must agree on what the percentage of completion the supplier must attain to be given a certain percentage of the payment (Jayshingpure et al., 2016). 

Read also Business Contract – The Case of Johnny And Mark

Conclusion

Procurement is an important part of project management. To ensure the successful completion of the project, the project team needs to engage a qualified purchase team that defines the best vendor to assist in the supply of the needed materials. To achieve this, the purchasing team must go through a complex process of identifying the available vendors, and from them select the best vendor that will be able to supply the needed products and promptly. The team should also focus on getting the best sales deal from the vendor to minimize the operational cost. This is not a simple process. To manage this, the team must go through several professional steps. The team must also ensure to make rational decisions based on presented situations. The purchasing team should only award a contract to a vendor or vendors who can satisfy their needs without fail by ensuring the vendor’s operational credibility and financial ability. All legal standards also need to be considered to ensure that the contract is binding and the company does not suffer for the vendor’s mistake. The review of the process demonstrates the importance of making the right choice while selecting a vendor.

The Case of Johnny And Mark

Johnny, a neighbor who is not a merchant under the Uniform Commercial Code, offers to buy a car from Mark for $30,000.   Mark asks Johnny for some time to think about it. Johnny says sure. He writes on a piece of paper that he will keep the offer open for two weeks.  

A week later Johnny sees another car he would rather buy. He purchases that, and then he tells Mark that he is revoking his offer. 

Two days after that Mark said: “I’m sorry Johnny you made an offer in writing to buy my car. I’m going to hold you to that.”   

Johnny replied: “Sorry I cannot do that.  But I will promise to pay you $10,000 for the help you gave me last year around the house.”   Somewhat mollified Mark accepts. 

A week later and Johnny decided to renege on that promise as well. 

Fed up, Mark sued Johnny for breach of

on both the promise to buy the car and the promise for the $10,000.

Discuss whether the elements of a contract are satisfied in this case.

Breach of Contract – The Case of Johnny And Mark

A contract can be defined as an agreement between two or more people, which must be enforceable legally (Renouf, 2008). When two or more parties enter into a contract, it must satisfy a number of elements if such a contract is to be valid and enforceable in the court of law. A valid contract must consist of an offer, consideration, legal capacity and unconditional acceptance (Stone & Richard, 2009). The following is an analysis of the elements of the contract between Johnny and Mark.

Read also Aspects of Contract and Negligence for Business

The Elements of a Contract in the Case

A valid contract must consist of an offer being made and an unconditional acceptance of the same. This should be done with good faith and without any intimidation or deceit. An offer occurs when an individual makes a promise to provide a service or to sell/buy a service/product/property (Stone & Richard, 2009). In the Case of Johnny and Mark, an offer was made when Johnny offered to buy a car from Mark for $30,000. In return, Mark made a conditional promise to consider the offer within two weeks and kept it in writing while noting that he would keep the offer open for two weeks. The fact that Mark offered to consider Johnny’s offer is conditional and does not constitute an element of a valid contract.

Read also Essential Elements Of An Enforceable Contract – Answered

However, according to the Uniform Commercial Code (USLegal, 2004), any contracts that are meant for sale or purchase of goods/services worth over $500 must be made in writing to be enforceable. In the case, it is stated that Johnny is not a merchant. Therefore, under the Uniform Commercial Code he is not obliged to provide in writing any failure to meet his obligation in the part of the contract agreement with Mark. The element of the Uniform Commercial Law in the contract between Mark and Johnny does exist.

The other element that is present in the contract between Johnny and Mark is the legal consideration. According to (Stone & Richard, 2009), a valid contract must have a consideration or benefit given to the other party in the contract. The consideration is a benefit that the person who accepts the offer or detriment on the person making the promise. In most contracts, the consideration is money, while in some cases it can be goods or services. In the case provided, the consideration is the $30, 0000 that was to be paid by Johnny for the Mark’s car.

Similarly, the element of legal capacity is present in the contract between Johnny and Mark. According to (Stone & Richard, 2009), a contract is deemed valid if it does not violate any state or federal law of what is defined as a legal activity. The author points that a contract between two parties that is done with an intention of creating harm or stealing is void. In the case provided, Johnny and Mark entered into a contract that involves the sale of a car. Assuming that Mark was the owner of the car, the contract has a legal capacity and is valid.

In addition to the above elements, a contract is said to be done if it is done between parties without use of threats or with an individual who is insane or has no clear capacity to make judgement. In some cases, parties may agree to offer some incentives or gifts during the contract negotiation. However, according to (Stone & Richard, 2009), other benefits and gifts that are given other than the consideration does not form part of a legally binding contract. In the case provided, the promise by Johnny to pay Mark $10,000 for the help offered constitute a gift and is not legally binding in contract.

Read also Contract Clause – Dispute Resolution Clause

In conclusion, there are numerous elements of contracts that can be observed in the case. The contract has an offer, consideration and legal capacity. Moreover, the contract was done in a willful manner between two parties who were in their sound states of minds. However, the contract lacks unconditional acceptance of the offer. Mark gave Johnny a condition that his offer would be considered after some time.

Discussion Prompt

You are working as the manager of a multispecialty clinic. You have been notified that a patient has filed a lawsuit against one of your physicians that has terminated a relationship with a patient. Executive management has asked you to prepare a memo to describe whether a patient can make a successful claim for a breach of contract in this case. 

Sample Answer

Is Physician – Patient Relationship a Contract?

Physicians have legal and ethical duty toward their patients as long as they have committed themselves in providing these services and that the patients still needs them. There may be no written contract to define this relationship, however, the verbal committed of a doctor toward a patient and the patient trust toward a doctor creates a binding agreement which is recognized by the law, and which can be ascertained by medical recorded related to patient’s visits to the physician’s office (Portmann, 2000). Nevertheless there might be times when a physician might no longer be in a position of offering care to a patient he or she had committed to. This can occur due to a number of reasons. It might be the patient is making unreasonable demands, is noncompliant with provided medical instructions, threatening the physicians or his or her junior staffs or maybe contributing to general breakdown of physician-patient relationship. This may also be due to the physician inability to handle the patient condition due to lack of specialty in advance condition development or lack of needed facilities. Most of these reasons may be acceptable in termination of the physician-patient relationship; however, it must be done in a manner that does not indicate patient abandonment. Patient abandonment occurs when physician-patient relationship is terminated by a physician without a reasonable excuse or reasonable notice, and fails to offer the patient a chance to find a qualified care provider to replace the physician initiating a termination.

Can the Patient Make a Successful Claim for a Breach of Contract ?

In this case, there was a premature termination of patient-physician relationship, with clear demonstration of patient dissatisfaction on how the process was carried out. Based on the law, a patient can successful make a claim of a breach of contract, he or she must be able prove that patient abandonment occurred in the process. This is a fact specific issue, and for it to stand in a court of law, the patient must be able to prove that she or he was abandoned. The patient must be able to demonstrate that the physician had already committed himself into treating him or her and that the treatment was underway.  The patient must also demonstrate that the physician abandoned him or her when still in great need of medical care or in critical phase in the treatment process. He or she must be able to prove that the right termination procedures, which may include patient referral or prior notification with adequate time to look for replacement, were not followed. The patient must be able to demonstrate that the termination was abrupt and no reasonable reasons were provided by the physician for the abrupt termination of the physician-patient relationship (Chowdri, 2018). The patient should also be able to demonstrate that the physician did not offer any referral or guidance to obtain another qualified physician who can handle the patient case after the termination. Patient should also be able to demonstrate there were damages or injuries that took place as a result of the physician behavior. The claim will strongly stand if the physician will not be able to justify his behavior based on the patient situation or the circumstances that surrounded the termination, and to demonstrate that the right procedures were followed (Chowdri, 2018). Whether or not the claim of breach of contract or patient abandonment occurred will be determined by the evidence surrounding the patient’s claim. The hospital can thus maybe consider investigating the circumstances that resulted to this termination to get clear perception of this case.

MGT 516 Legal Implications in Human Resource Management – Case Assignment

You are an HR Manager for a large sheet metal manufacturing company. One of your largest customers has just secured a major office furniture contract with the federal government. Your customer wants your company to become a subcontractor for the project, making all of the plastic parts required. There is uncertainty among your organization’s top officials about whether or not to become part of this project, even thought it would be very lucrative. The disagreement centers around the preparation of an affirmative action plan and the goal achievement requirements imposed to correct underutilization.

Your paper of 4 to 5 pages (not including title page nor reference page) should address the following questions:

1. What are the EEO compliance requirements that impact a federal subcontractor?
2. What are the important components of an affirmative action plan (expand on the goal-setting process)?
3. How should affirmative action goals relate to an organization’s strategic human resources plan?
4. What would you recommend to your organization’s top officials about becoming part of this project?

MGT 516 Case Assignment Sample Answer

Equal Employment Opportunity Compliance Requirements that Impact a Federal Subcontractor

Federal contractors and subcontractors are required to observe primary requirement of equal employment opportunity (EEO) of executive order 11246. This Executive order outlaws employment discrimination by federal subcontractors and contractors as well as federally-supported construction subcontractors. and contractors to obtain affirmative action to guarantee that all persons have equal employment opportunity without consideration to national origin, race, gender identity, color, sexual orientation, religion, and sex. Federal subcontractors should ensure that no employee or job applicant is treated differently in unfavorable manner due to any of the above named factors. The subcontractor should also not have neutral practice or policy with advance effect on members of any ethnic group, sex, or race or practice or policy is not  associated by business necessity or job related (U.S. Department of Labor OFCCP, n.d.c).

Read also Federal Equal Employment Opportunity Laws Reflection Paper

Other primary requirements for Federal contractors and subcontractors include filling a yearly EEO-1 report, keeping records, adding the tag line of EEO to employment advertising, posting Equal Employment Opportunity posters and allowing access of OFCCP to records and books during a compliance evaluation or complaint investigation. Posters of EEO should be posted in a visible place such as lunchroom or in an area where workers can take breaks. Federal subcontractors are also needed to not in all advertisementsor solicitations for employment which all competent applicants will receive employment consideration without regard to national origin, race,color, gender identity, religion, sexual orientation, sex or religion. Federal subcontractors are also needed to uphold any employment or personnel records kept or made by the contractor. Such records include personnel files, job descriptions, written employment procedures and policies, job advertisements and postings, tests results and test, job offers records, interview notes, and resumes and applications. This is all done to ensure that a subcontractor observes equal opportunity laws that prohibit any form of discrimination in all employment processes (Department of Labor OFCCP, n.d.a).  ]

Read also Federal Equal Employment Opportunity Laws

Equal Employment Opportunity also demands that a federal contractor should not discriminate the workers or job applicants based on their disabilities. Based on this requirement, Federal subcontractor should provide advancement and employment of qualified persons with disability. Based on this requirement, in case any person with disability has a reason to believe that any subcontractor has refused or failed to comply with the U.S. contract provisions, associating to employment of persons with disability, or any other form of discrimination addressed by Title VII of Civil Right Act the that person might file a complaints to the labor Department (U.S. Department of Labor OFCCP, n.d.c).

Important Components of an Affirmative Action Plan

Affirmative Action Plan (AAP) refers to a written program or a tool where in an employer records the steps to be taken or taken to guarantee the right of all individuals to advance on ability and merit basis without regard to genetic information, race, disability, color, religion, age, sex, veteran’s status, national origin among other factors that cannot be legal base for employment action. The Affirmative Action Plan contains a number of components that include policy statement, organizational chart, responsibilities designation, timetables and goals, grievance procedures, action statement and barriers or problems identification statement (National Conference of State Legislatures, 2014).

Read also Evolution of Affirmative Action Over The Last 40+ Years

Policy statement covers equal employment opportunity, nondiscrimination over individuals with disabilities, or sexual harassment. Responsibilities designation component involves documentation and identification of all persons which have a duty in the process of Affirmative Action. Barriers or problem identification statements component involves identification of conditions or situations that require to be changed or to be corrected. Barriers are management or personnel procedures or policies that cause the conditions or situation. Action statement component identifies the particular measure to solve barriers and problem.

Read also Female Representation on Corporate Boardrooms Policy Paper

Goals refers to objectives that narrowly tailored for promoting and hiring safeguarded members of group in EEO classifications to correct the prolonged impact of past discrimination. Goals denote flexible targets utilized to guide efforts of affirmative action in the present plan cycle. Affirmative Action Plan goals are not rations and cannot be utilized to exclude or discriminate persons from job opportunities via reverse discrimination (Office of Information Technology Services, n.d.).

Recommendations to the Organization’s top Officials about becoming part of this project?

The analysis of the provided offer shows that taking the current subcontract will be very profitable to the organization. However, the organization has not been able to meet most of the requirements needed to enhance equal employment opportunities. This implies that for it to be able to work as a Federal subcontractor, it will need to improve on various aspects. The organization can opt to retain its status quo and reject the offer. However, this will deny the organization any future opportunity to work in highly profitable projects. I would therefore recommend the organization management to consider developing Affirmative Action Plan and adjusting the human resources processes planning and management to eliminate discrimination based on age, sex, disability, race, ethnicity, religion, original country, color, and sexuality among other things. The Affirmative action plan should also define the best mechanism to report and address cases of discrimination in the organization. This will not only eliminate chances of law suits against the organization, but will also provide the company with a better chance of getting more federal contracts even as contractors in the future. Having affirmative actions that meet all affirmative action goals will be of great benefit to the organization. It will also enable the organization to develop an improved work environment which is likely to improve workers production.

Candie Cardigan as a representative for CARDWARE has decided to auction her strapless giraffe print dress made of silk, satin with velvet markings. This particular dress was used in a movie filmed in S. Africa. The dress had been show cased among other famous dresses in the Silkadonia Actors Guild Museum. Cassie Cardigan was chosen to act as the auctioneer for World Wide Auction House. The bidding for the dress began at $5,000. Pearl has been looking forward to participating in the auction for this dress for over three months. Pearl raised her auction paddle and bid the initial $5,000. Jade also wanted the giraffe print dress and upped the ante to $5,500. The two battled the bidding to where it appeared that Pearl got the dress for $8,500.00, as Cassie smiled and nodded at Pearl.

Candie and Jade had been friends for years, as they had modeled together growing up as children. Candie quietly told Cassie to sell the dress to Jade. When Pearl presented $8,500 to Cassie, Cassie refused to take her money claiming that the dress was to go to Jade. Cassie further explained that Jade had allegedly had raised her paddle after Pearl’s final bid and showed five fingers meaning that she was bidding $500.00 more over the $8,500.00 bid made by Pearl. In reality, no such action by Jade had taken place.

Pearl now wants to sue for breach of contract. She has come to your office asking for your help. She wants you to request that Candie turn the dress over to her for the $8,500 that she bid. Your supervising attorney Les Agne indicates that you should investigate a cause of action for breach of contract, as well as a cause of action based on specific performance. Be aware of whom the true Plaintiff may be in this potential case and who causes of action may be brought against. Also, Les has scribbled the following notes to help you with organizing your thoughts regarding Specific Performance.

Dear Paralegal:

After you establish a contract exists as a result of the auctioning of the giraffe print dress, you may want to consider the following with regard to specific performance:

• You must have a contract in place
• The remedy at law must not be adequate (hence damages alone will not provide relief to the party who is seeking specific performance.
• The remedy must be enforceable
• If one party can bring the action for specific performance, so can the other if the positions were reversed.
• If there were any conditions to the contract, all were.
• Be sure to discuss defenses with regard to the contract. In other words, what will Candie or the Auction House say in response to there being a contract?

Assignment Instructions:

Please write me a memorandum in the following format:

Date:

To: Les Agne, Attorney at law

From: [Your Name]

Re: Potential Causes of Action for Breach of Contract and Specific Performance

Organize your memorandum with an introduction, body, and conclusion.

Note: Your memorandum length of 2–3 pages is separate from the cover sheet and reference page.

Avoid the use of first person.

Provide in-text citations. If a reference is listed in your reference page, make sure it is displayed within your submission where you retrieved information from.

Provide hanging indents where needed.

Double space throughout your submission, including throughout your reference page. Note: This includes between your references.

Your reference page should be separate from the body of your submission.

Use Times New Roman size 12 font.

Provide an APA formatted cover sheet.

The Department of Defense plans to issue a $400,000 government contract to a company that specializes in drone navigation technologies. As a result, a government auditor has been contacted to examine the operational data VectorCal and one competitor (previously identified as NavoTech) in order to decide which company should win the government contract.

Contract managers perform various duties over the course of a contract. To begin with, they control variations to the contract in terms of change of policy, quality, quantity, price, timing and delivery. Variations in this case refer to the amendment of a contract which changes the original terms and conditions of the agreement. Contract managers are therefore required to ensure that a contract is not varied to the extent that it alters the services offered or the pricing and even the nature of goods and services offered (Shaik, 2014). A contract should only be varied in distinct circumstances, with the contractor and the acquiring entity coming into an agreement that is either written or oral.  A contract manager is expected to also ensure that a contract is not varied due to serious problems such as poor performance. Contract managers should know the real reason behind variation of a given contract. Contract managers also need to ensure that for the terms and conditions of a contract to vary, the involved parties must present parts of the original transaction.

Another role of a contract manager is to manage disputes. Human beings have different, conflicting ideas which get them into conflicts. A dispute is said to have occurred when the two parties are not able to agree on an aspect with regard to the contract. A control manager therefore, is expected to be rational and unbiased in order to contain such conflicts by identifying the root cause of the problem and then addressing it.  The manager should refer a conflict between both parties to the contract resolution mechanism that was agreed upon at the time of signing the contract (Shaik, 2014). Sound understanding of their responsibilities by both parties helps to reduce disagreements within the tenure of a contract. To avoid escalation of disagreements, a control manager should recognize a dispute at an early stage. Unresolved conflicts can greatly affect the contract and in a worse scenario leading to termination of a contract. A contract manager can employ various forms to resolve a dispute. Negotiation tactics, litigation, arbitration or mediation can be used to solve disagreements.