36.511
Use and possession prior to completion
Include the "Use and Possession Prior to Completion" clause in fixed-price construction contracts over the simplified acquisition threshold to clarify government rights and contractor obligations regarding early site use.
Overview
FAR 36.511 requires contracting officers to include the clause at 52.236-11, "Use and Possession Prior to Completion," in solicitations and contracts for fixed-price construction projects expected to exceed the simplified acquisition threshold. The clause addresses the government's right to use or possess all or part of the construction site before the project is fully completed. For contracts at or below the threshold, inclusion of the clause is optional. This ensures both parties understand the terms under which the government may occupy or use the site prior to final acceptance, which can affect contractor responsibilities and risk allocation.
Key Rules
- Mandatory Clause Inclusion for Larger Contracts
- The clause at 52.236-11 must be included in fixed-price construction contracts exceeding the simplified acquisition threshold.
- Optional 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 solicitations and contracts; may include it in smaller contracts if deemed necessary.
- Contractors: Must review and comply with the terms of the clause regarding government use or possession of the site prior to completion.
- Agencies: Should provide oversight to ensure proper clause usage and contract compliance.
Practical Implications
- This section clarifies when the government can use or occupy a construction site before project completion, which can impact contractor liability, insurance, and scheduling. Contractors should be aware of the risks and obligations associated with early government use or possession, and contracting officers must ensure the clause is properly included to avoid disputes.