In-House Counsel

The New Year’s Regime Change: Why You Should Question Authority

New team? New year? Same old mistakes that in-house attorneys must deal with.

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Our Procurement team has a new sheriff in town. And a deputy. And whatever the back-up to the deputy is called. Let’s just go with spare heir, because it rhymes. Per our usual “pay lip service to diversity, but only hire middle-aged white guys as execs” approach, the sheriff is an inoffensive, perfectly palatable middle-aged white guy, but the twist is that his deputy and spare heir are women (that’s new and worth noting in a department that’s been historically male, though nobody gets spared in these columns, so adjust your expectations accordingly).

Although the new regime officially assumed control when the ball dropped (bad pun intended), their reign kicked off in early December. It didn’t do much for my healthy sense of skepticism that the trio was composed of all outside talent. Normally, that kind of thing doesn’t raise alarm bells for me. The sales team switches out its top brass more than I change my toothbrush (to be fair, I change it quarterly… and the sales team has me beat by a mile).

Still, with a group like Procurement, it’s my usually oh-so humble opinion that the people in charge should be somewhat knowledgeable about the business they’re going to run and realize efficiencies from (read: squeeze money out of). But even I’ll admit I was impressed. The new posse was slick, polished, and professional in a way that none of our previous Procurement teams had been.

On New Year’s Eve day, I received a request for a review of a “rush-high priority-top secret-Defcon 5- time to call in the Rock because the city is under siege” contract because I was, apparently, the only attorney with a pulse checking email that morning. Oh, and did I mention it was for a stupid amount of money? The contract was for a stupid amount of money.

Still, I wanted to impress my new partners, and I figured it would be an easy lift. These guys clearly knew their stuff. Joy of joys, the contract didn’t look terrible from a legal perspective (although, let’s be serious, that could easily have been the New Year’s Eve mimosa-colored glasses talking).  But the commercials were a mess. The volume commitments, while certainly not unheard of in our multi-stream, multi-source supply chain, were in the nine-digit range. In all my years at the company, I’d never seen volume commitments like this allocated to a single vendor. Or aggregated across two or more vendors. Eff it, forget the qualifications, I’d never seen volume commitments like this. Full stop. Then came a liquidated damages provision which provided for the full balance of all fees under the contract and (wait for it) an additional penalty for what I could only ascertain was for shits and giggles. And finally, the no termination for performance until seven years into the contract was sort of the sour cherry on the top of this sordid sundae.

After much agonizing over whether I was overstepping or overestimating my business prowess, I sent a carefully worded email to the trio, politely noting that contractually we were in the clear, but “highlighted” a few areas of commercial concern. I was met with a staggering wall of silence, because like most holiday emergencies, they are only an emergency for one party (i.e., Legal). Days went by, and I reached out again. Radio silence. And I assumed that I had overstepped, had missed some synergy or commercial benefit that would have outweighed agreeing to these fairly onerous provisions. I convinced myself that this shiny new leadership team with its storied pedigree didn’t need Legal the way the previous one had, and clearly, they were playing some sort of long game with this vendor that didn’t warrant an explanation of the finer points to Legal.

Then, came the dreaded approval email where all interested parties need to provide sign-off or raise concerns. Kind of like that moment when the officiant asks for any objections as to why the happy couple shouldn’t get married. There’s that weird moment of tension of whether you should say something, bolt down the aisle, grab your carefully wrapped instapot and keep it for yourself, or just hunker down in your seat and hope for the best.

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Dignity be damned, I nudged them again. And when another wave of day-long silence reverberated in my inbox, I finally stooped to calling the VP of Finance and voicing my concerns. This finally elicited an apologetic response from the new sheriff of Procurement. The guy had never read the contract, not even the cover sheet. He assumed his deputy had read it, who had in turn deputized the spare heir to do the review, and the spare heir had tapped an entry-level purchasing associate to “issue spot” it for her. The punch line? No Procurement person had actually opened a document that would dictate much of our spending at a particular location for a decade. A freaking decade.

Used to a highly functioning Procurement team, I let that odd mix of complacency and self-doubt settle in. When I found myself wondering whether it was my place to question the wisdom of a team that had more aggregate years of Procurement experience than I’d had walking this earth, I did so because I’d made the underlying assumption that among all that talent and experience, someone had actually bothered to read the document instead of passing it off to an underling.

New team? New year? Same old mistakes.

Do yourself a favor. Ask the obvious questions. Kick the tires. And pressure test those assumptions (yours and theirs).

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Kay Thrace (not her real name) is a harried in-house counsel at a well-known company that everyone loves to hate. When not scuffing dirt on the sacrosanct line between business and the law, Kay enjoys pub trivia domination and eradicating incorrect usage of the Oxford comma. You can contact her by email at KayThraceATL@gmail.com or follow her on Twitter @KayThrace.

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