11.404 Contract clauses
Source: FAR 11.404 on acquisition.gov
FAR 11.404 requires contracting officers to use specific clauses to clearly define delivery or performance schedules, ensuring both parties understand and can enforce contract timelines.
Overview
FAR 11.404 outlines the requirements for including specific contract clauses related to delivery or performance schedules in federal solicitations and contracts. It provides guidance to contracting officers on when and how to use standard clauses (and their alternates) to establish delivery timelines for supplies, services, and construction projects. The section ensures that delivery expectations are clearly communicated and contractually enforceable, reducing ambiguity and supporting timely contract performance.
Key Rules
- Time of Delivery Clauses for Supplies or Services
- Contracting officers may use time of delivery clauses to specify required delivery schedules and allow offerors to propose alternatives. Clauses can be tailored or newly written as needed.
- Use of FAR 52.211-8 (Time of Delivery)
- Insert this clause when the government requires delivery by a specific time, with alternates available depending on how the delivery schedule is determined (contract date, assumed award date, or notice of award).
- Use of FAR 52.211-9 (Desired and Required Time of Delivery)
- Use this clause when the government desires but does not require delivery by a certain time, with alternates based on how the delivery schedule is set.
- Construction Contracts (FAR 52.211-10)
- For fixed-price construction contracts, include the Commencement, Prosecution, and Completion of Work clause, with an alternate if the completion date is based on the notice to proceed.
Responsibilities
- Contracting Officers: Must select and insert appropriate delivery or performance schedule clauses and alternates in solicitations and contracts based on the type of contract and delivery requirements.
- Contractors: Must review and comply with the specified delivery or performance schedules and understand the implications of the clauses included in their contracts.
- Agencies: Ensure oversight and consistency in the application of delivery and performance schedule clauses.
Practical Implications
- This section ensures that delivery expectations are clear and enforceable, reducing disputes and delays.
- Contractors must pay close attention to the delivery clauses and any alternates used, as these affect their obligations and risk.
- Common pitfalls include misunderstanding which alternate applies or failing to meet the specified delivery schedule, which can lead to contractual remedies or penalties.
(a) Supplies or services.
(1) The contracting officer may use a time of delivery clause to set forth a required delivery schedule and to allow an offeror to propose an alternative delivery schedule. The clauses and their alternates may be used in solicitations and contracts for other than construction and architect-engineering substantially as shown, or they may be changed or new clauses written.
(2) The contracting officer may insert in solicitations and contracts other than those for construction and architect-engineering, a clause substantially the same as the clause at 52.211-8, Time of Delivery, if the Government requires delivery by a particular time and the delivery schedule is to be based on the date of the contract. If the delivery schedule is expressed in terms of specific calendar dates or specific periods and is based on an assumed date of award, the contracting officer may use the clause with its Alternate I. If the delivery schedule is expressed in terms of specific calendar dates or specific periods and is based on an assumed date the contractor will receive notice of award, the contracting officer may use the clause with its Alternate II. If the delivery schedule is to be based on the actual date the contractor receives a written notice of award, the contracting officer may use the clause with its Alternate III.
(3) The contracting officer may insert in solicitations and contracts other than those for construction and architect-engineering, a clause substantially the same as the clause at 52.211-9, Desired and Required Time of Delivery, if the Government desires delivery by a certain time but requires delivery by a specified later time, and the delivery schedule is to be based on the date of the contract. If the delivery schedule is expressed in terms of specific calendar dates or specific periods and is based on an assumed date of award, the contracting officer may use the clause with its Alternate I. If the delivery schedule is expressed in terms of specific calendar dates or specific periods and is based on an assumed date the contractor will receive notice of award, the contracting officer may use the clause with its Alternate II. If the delivery schedule is to be based on the actual date the contractor receives a written notice of award, the contracting officer may use the clause with its Alternate III.
(b) Construction. The contracting officer shall insert the clause at 52.211-10, Commencement, Prosecution, and Completion of Work, in solicitations and contracts when a fixed-price construction contract is contemplated. The clause may be changed to accommodate the issuance of orders under indefinite-delivery contracts. If the completion date is expressed as a specific calendar date, computed on the basis of the contractor receiving the notice to proceed by a certain day, the contracting officer may use the clause with its Alternate I.