52.236-11
Use and Possession Prior to Completion
This clause allows the Government to use parts of the work before completion while protecting contractors from liability and providing for equitable adjustments if impacted.
Overview
FAR 52.236-11, "Use and Possession Prior to Completion," outlines the rights and responsibilities of both the Government and contractors when the Government takes possession of or uses any completed or partially completed portion of the work before the contract is fully completed. The clause ensures that the Government can use parts of the project as needed, but also protects the contractor from liability for loss or damage resulting from such use. It also provides a mechanism for equitable adjustment if the Government's early possession causes delays or additional costs.
Key Rules
- Government Right to Possession or Use
- The Government may take possession of or use any completed or partially completed part of the work at any time before final completion.
- Notification Requirement
- The Contracting Officer must provide the contractor with a list of remaining work items for the portions to be used or possessed, but failure to list items does not relieve the contractor of contract obligations.
- No Implied Acceptance
- Government possession or use does not constitute acceptance of the work.
- Relief from Liability
- The contractor is not responsible for loss or damage to the work resulting from the Government's possession or use.
- Equitable Adjustment
- If Government possession or use causes delay or extra expense, the contractor is entitled to an equitable adjustment in price or completion time, formalized by contract modification.
Responsibilities
- Contracting Officers: Must notify contractors of remaining work items and process equitable adjustments if required.
- Contractors: Must continue to fulfill contract obligations and request equitable adjustments if impacted by Government use.
- Agencies: Must ensure proper documentation and contract modifications as needed.
Practical Implications
- This clause allows the Government flexibility to use parts of a project before full completion, which can be critical for mission needs.
- Contractors are protected from liability for Government-caused damage or delays, but must remain vigilant in documenting impacts and requesting adjustments.
- Common pitfalls include failing to request equitable adjustments or misunderstanding that Government use does not equal acceptance.