FAR 36.511—Use and possession prior to completion.
Plain-English Summary
FAR 36.511 tells contracting officers when to include the clause at 52.236-11, Use and Possession Prior to Completion, in fixed-price construction solicitations and contracts. The section covers two related topics: mandatory use of the clause when a fixed-price construction contract is contemplated and the expected award amount exceeds the simplified acquisition threshold, and permissive use of the clause when the expected amount is at or below that threshold. In practice, this rule addresses situations where the Government may need to occupy, use, or take possession of all or part of a construction project before final completion and acceptance. The clause helps allocate risk, define responsibilities, and protect both the Government and the contractor when early use or occupancy could affect performance, safety, warranty, inspection, or completion issues. For contracting officers, the section is a solicitation-and-contract drafting instruction; for contractors, it signals that the Government may seek early use rights and that the contract should account for those rights up front.
Key Rules
Mandatory above threshold
The contracting officer must insert clause 52.236-11 in solicitations and contracts when a fixed-price construction contract is contemplated and the expected award amount exceeds the simplified acquisition threshold. This is a required inclusion, not a discretionary one, when those conditions are met.
Permissive at or below threshold
When the expected contract amount is at or below the simplified acquisition threshold, the contracting officer may insert the clause. The rule gives discretion to use the clause if early use or possession issues are likely to arise.
Applies to fixed-price construction
This section applies only when a fixed-price construction contract is contemplated. It does not establish a general rule for other contract types or non-construction acquisitions.
Clause governs early use
The purpose of the clause is to address Government use or possession before completion. It is intended to manage the legal and practical consequences of early occupancy, partial use, or possession during ongoing construction.
Responsibilities
Contracting Officer
Determine whether the contemplated acquisition is a fixed-price construction contract and whether the expected award amount is above or at/below the simplified acquisition threshold. Insert clause 52.236-11 when required, and consider whether to include it when permissive.
Agency
Ensure acquisition planning and solicitation drafting account for the possibility of Government use or possession before completion, including any operational need for early occupancy or phased turnover.
Contractor
Review the solicitation and contract for the presence of clause 52.236-11 and plan for the possibility that the Government may use or possess part of the work before final completion. Account for any schedule, access, safety, coordination, and completion impacts in performance planning.
Practical Implications
Contracting officers should check both the contract type and the expected award amount early in acquisition planning, because the clause is mandatory in many fixed-price construction procurements above the simplified acquisition threshold.
A common pitfall is overlooking the clause when the Government expects to occupy or use the facility before final completion; that can create avoidable disputes over access, responsibility, and acceptance.
Contractors should treat early use or possession as a performance risk issue, not just an administrative detail, because it can affect sequencing, site control, safety, and punch-list completion.
Even when the clause is optional at or below the simplified acquisition threshold, including it can be prudent if phased occupancy or partial use is likely.
The section is short, but it matters because it determines whether the contract expressly addresses early Government use before completion, which can significantly affect project execution and dispute avoidance.
Official Regulatory Text
The contracting officer shall insert the clause at 52.236-11 , Use and Possession Prior to Completion, in solicitations and contracts when a fixed-price construction contract is contemplated and the contract award amount is expected to exceed the simplified acquisition threshold. This clause may be inserted in solicitations and contracts when the contract amount is expected to be at or below the simplified acquisition threshold.