Overview
FAR 11.401 establishes that delivery and performance schedules are essential contract elements that must be realistic, clearly defined in solicitations, and structured to promote competition. The section emphasizes the negative impacts of overly aggressive schedules and provides for the use of liquidated damages when timing is critical.
Key Rules
- Essentiality: The time of delivery or performance is considered a fundamental element of a contract and must be clearly explicitly stated in all solicitations.
- Requirement for Realism: Contracting officers (COs) are mandated to ensure schedules are achievable; unnecessarily short deadlines are discouraged because they restrict competition, conflict with small business policies, and increase costs.
- Evaluation Disclosure: Solicitations must inform offerors of how their proposed delivery or performance timeframes will be evaluated, unless such disclosure is clearly unnecessary.
- Liquidated Damages: If adherence to the schedule is of unusual importance to the Government, the CO may include liquidated damages clauses per FAR subpart 11.5.
Practical Implications
- Contracting officers must balance agency urgency with market capabilities to avoid "gold-plating" schedules, which can lead to protests or inflated bid prices.
- Small businesses should monitor solicitations for unrealistic performance windows and may have grounds for a pre-award inquiry or protest if a schedule is used to unfairly restrict the competitive field.