‘Reasonable efforts’ or ‘reasonable endeavours’, always sets alarm bells ringing for me. Depending on which side of the relationship I happen to be working with at the time I can either be delighted or annoyed.

The reality is that it’s often very difficult to agree and define what is reasonable so inevitably there’s going to be a dispute somewhere down the line. As a friend of mine pointed out at the weekend, even husbands and wives don’t always agree on what constitutes reasonable!  So reasonable means different things to different people, what’s reasonable to me may not be reasonable to you. In a Business Continuity context the differences of opinion can result in significant misalignment between organisations. If you are relying on a supplier to work in line with your Recovery Time Objectives (RTO) you run the risk of them delivering, quite within their rights, outside your requirements.

Think about it.

If you are a supplier being asked to deliver something to reasonable endeavours, whatever you do, however you perform, satisfies the requirement. If you are challenged you simply defend yourself with ‘we consider it reasonable.’ The lawyers are rubbing their hands with glee.

If you are the customer in this situation how do you know what you will get for your money? Typically you are buying a service or product. You need it by a certain time, you need it to a certain standard, you need it performed to a defined level.  Why would you pay for something but place yourself in a position of not knowing exactly what you will get. As a kid I liked surprises for my Birthday but now I am in business I’ve kind of gone away from the idea!

A number of my friends are lawyers so this week I asked their opinion on the use of phrases such as ‘reasonable efforts’ and ‘reasonable endeavours’. Their responses made interesting reading.

One of the responses provided a list in hierarchal order of the various phrases in use where such terms are used. The implication is that if a firm of lawyers have prepared such a list they must have seen plenty of cases and established sufficient legal precedents to have formed legal opinion on which phrases carry greatest obligations.

So, my point is – there must have been lots of legal disputes in this arena.

Don’t set yourself up for problems. Legal disputes can be costly and will be too late to salvage your business continuity arrangements.

From today you need to make a promise to yourself to outlaw such terminology in any agreements or contracts. If you have completed your Business Impact Analysis and defined your RTOs make sure you finish the job and apply them to your suppliers. Be specific. Define your requirements otherwise you may meet your RTOs internally only to risk being let down by a supplier.

In particular if you specify such requirements at outset you have a good chance of securing what you need but ask an existing, long standing supplier to suddenly comply is likely to be greeted with ‘Sure, we can do that, it will cost you…….’

I don’t profess to be a legal expert but for this issue you don’t need to be. I’ve learnt over the years that you need to be specific with your requirements and read, yes actually read, the contract or agreement.

If you need help in this area let me know…………or get a good lawyer.

January 29, 2013 at 8:05 pm
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Category: Suppliers
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