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I often get involved with projects to help determine what’s needed when changing from legacy or poor performing software and systems. Quite often its four or five a year, for organisations managing 100 or less homes, right up to larger socialhousing organisations or councils managing tens of thousands of homes or greater. Most of the legwork is supporting a compliant process, essential to be fair and prevent a situation which might provoke a feared challenge. Rather than OJEU as we had prior to Brexit in the UK, public bodies now have new legislation which came in from Feb 2025.
Hopefully, the process will be compliant and a preferred bidder will be determined, as best fit of quality and value for what the public body (social landlord or local authority) requires, such as Asset Management, Repairs, Self-Service, addressing Damp & Mould , Finance, or other solutions.
One of the finalisation stages of procurement is the contract. Sometimes these are defined by frameworks (like CCS), put forward by the contracting body initially in the early part of procurement, or what the supplier provides. In smaller procurements, often the latter is the (only) default option. In any of these situations, there should be ‘Contract Finalisation’. This should not drift into ‘Contract Negotiation’, which might be a wholesale cutting up of the agreement, which ultimately needs to be a compromise that all parties can work with, to achieve successful projects, as they were sold.
Having someone with experience of software contracts (as they are different than when procuring other goods/services) or spending some well-spent money on legal assistance, is a great idea. Beside that, it is always worthwhile as bedtime reading, to review the whole contract yourself. Amazingly, I have seen many quite obvious clauses binding customers into whole contract term (5+ years) payments, even if you can contractually terminate early, or a reset of contract term, if you change your stock number. Another thing the contract should allow you to do, as number of properties for anyone is bound to change. For goodness sake, just don’t sign that 121 page contract and hope for the best.
Anyone who like me has been involved on the sidelines of much contract finalisation, will be familiar with ‘Endeavour’ and the concept of ‘Reasonable’. Some words that always make me smile in contracts and often will be found in paragraphs that suppliers will be keen to strike-through and have dropped from the contract, to protect themselves to a greater degree and remove some ‘teeth’, lest poor service/product encourages you to bite them later down the line.
On some occasions I have encountered some suppliers (I am too polite to name them here), who have tried to drop contract clauses as they declared they thought they were ‘un-reasonable’, which I pointed out that the word ‘reasonable’ was actually in the clause being dropped! Hence, the supplier ask was bogus and mostly I have seen those being roundly and rightly rejected.
Lets explore the various ‘Endeavours’ you might well encounter….
The gold standard in English, Irish and Scottish law is ‘Best Endeavours’. A supplier here is bound to “Use no less than its best efforts to produce the desired results in the circumstances”. While onerous, this is not regarded by the courts as an absolute one, and is regarded as subject to reasonableness.
“All reasonable endeavours”, is the next compromise down and softens the above. Case law indicates that the steps have to be taken will depend on the circumstances. The obligation may exhibit the characteristics of both best and reasonable endeavours. So this is rather grey. Suppliers may be required to sacrifice their own commercial interests (or not).
The wooden spoon goes to “Reasonable endeavours”. Not so demanding, the supplier is obliged to pursue a reasonable course to achieve the objective. IE this is less stringent, supplier commercial interests need not be sacrificed.
So, what should you choose?
Well, its very much down to your appetite for risk and how risky might your preferred bidder might be? Hopefully in your procurement journey you will have done an early soft-market exercise and looked at independent reference sites and have an idea of how similar projects have panned out previously. Hopefully they didn’t go down the pan, if so, the stronger options above might be more advised. Always ask the right questions (understanding the answers!), working as a Critical Friend its quite commonplace for me.
Remember too that contracts should not need constant revisiting during challenging projects. However, if projects are going adrift then know where they are and decide if teeth provided should be used to bite !
Related Post: Can some products or suppliers survive losing founders or key people?
I would be pleased to connect with you on LinkedIn - http://uk.linkedin.com/in/tonysmiththathousingitguy Message
me with any issues or queries, you would like to be explored in this
blog. We generally receive a couple of suggestions each month.
Rod Gozzett - Endeavour
(c) Tony Smith, Acutance Consulting www.acutanceconsulting.co.uk 07854-655009
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