Thursday, May 10, 2012

Including, but not limited to...

If you include a list of examples such as a list of tasks to be performed or deliverables to be provided, that list may be considered all inclusive and may limit what you get to only that list. As a result drafters may seek to not have that list be limited by including a preamble such as "The work shall include, but not be limited to" after which a number of items are listed.  The problem with such an approach is there is no clear meeting of the minds on exactly what is required. This can result in disputes. A second problem with this it's potentially unlimited. Any time a supplier can't quantify exactly what they need to provide they will included contingencies to cover the potential risk or cost. If the term is used by the supplier, the buyer can't quantify exactly what value the supplier will provide.

I'm of the opinion that if something is important to you, you shouldn't use "including, but not limited to" and you should spell out exactly what is required so its clear exactly what must be provided. If it isn't practicable to do that, I would make sure my list included all the things that I knew I wanted to be provided as part of the list so it's clear that as a minimum those were agreed and need to be provided.

To prevent the commitment from being perceived to be unlimited which might significantly add to the cost through contingencies, I might also disclaim specific items or tasks that I knew I didn't want to be provided.  For example: Supplier's deliverables shall include, but not be limited to, 1, 2, 3, 4,. Supplier shall not be required to provide 5 and 6.  That way, while you initial list could include more items it's clear to both parties what is not required to be provided.

The fewer things you leave open to interpretation, the fewer disputes you will have and fewer contingencies and costs you will have built into your price for things you either don't want or need.