On my website there are loads of free resources and I love to get feedback about them. This week Gary from Luxembourg challenged whether the clause in my sample letter of intent asking a contractor to use reasonable skill and care was ‘good enough’.
Technical? Legal? Commercial?
Many years ago, I entered into a ‘deal’ with my teenager saying I would pay him £5 to tidy his bedroom to my standard. I knew that if I merely asked him to clean his room, then he would be able to argue that his opinion of clean was all that was needed! (As a mum of three boys, my standards for a clean bedroom do not include polish, sparkling surfaces or a carpet cleaner.)
However, when it comes to contracts, quality standards can present some real difficulties. Do you define an input or output standard? Or do you leave it to the opinion of an individual – such as a contract administrator often driven by commercial issues – who should be scrupulously fair and independent, or may be biased towards one party or unnecessarily pernickety?
For an input standard, the most common performance standard is ‘reasonable skill and care’. It is the bare minimum imposed by English common law (by way of an implied term) or by statute. It really means average competence but can be increased to cover specialist expertise in some instances.
Gary’s point was that “You don’t want to waste your money on people who will only be average.” He also reminded me that I’d said in the Contract Teardown Show that “The client doesn’t care how much competence you have or how much effort you put in; they just want the result to match their expectations at the end of the day.”
If we want to clearly define client expectations, it may be better to use an output standard. The phrase commonly used is ‘fit for purpose’ which requires the client expectations or purpose to be clearly stated. One difficulty with fit for purpose is that it sometimes results in the contractor promising the impossible!
However, when it comes to works, often the best way to describe the quality required is not some generic legal phrase, a performance guarantee or stating a specific design life. Quality standards should not be based on commercial drivers or legal niceties. Quality standards should be based on a technical view of what the works are meant to do when completed – it could be based on how they will be used or on tests to determine they perform as intended.
My view is that quality is not driven by legal clauses, but by technical or commercial objectives. What do you think?
