36.502
Differing site conditions
Include the Differing Site Conditions clause in fixed-price construction and related contracts exceeding the simplified acquisition threshold to address unforeseen site issues.
Overview
FAR 36.502 requires contracting officers to include the clause at 52.236-2, Differing Site Conditions, in solicitations and contracts for fixed-price construction or fixed-price dismantling, demolition, or removal of improvements when the contract amount is expected to exceed the simplified acquisition threshold. The clause may also be included at the contracting officer's discretion for contracts at or below the threshold. This clause is designed to address situations where unforeseen physical conditions at the site differ materially from those indicated in the contract, providing a mechanism for equitable adjustments.
Key Rules
- Mandatory Clause Inclusion for Larger Contracts
- The Differing Site Conditions clause (52.236-2) must be included in fixed-price construction and related contracts exceeding the simplified acquisition threshold.
- Discretionary Clause Inclusion for Smaller Contracts
- The clause may be included at the contracting officer's discretion for contracts at or below the simplified acquisition threshold.
Responsibilities
- Contracting Officers: Must ensure the clause is included in applicable contracts and may use discretion for smaller contracts.
- Contractors: Should be aware of the clause and its implications for reporting and resolving differing site conditions.
- Agencies: Must oversee compliance with clause inclusion and proper contract administration.
Practical Implications
- This section ensures that both parties have a clear process for addressing unforeseen site conditions, reducing disputes and facilitating equitable adjustments.
- Contractors should review solicitations for the presence of this clause and understand their rights and obligations if differing site conditions are encountered.
- Failure to include the clause when required can lead to contract disputes and administrative complications.