Subpart 11.4 - Delivery or Performance Schedules

Overview

FAR Subpart 11.4 establishes the policies and procedures for setting delivery or performance schedules in government solicitations and contracts. It emphasizes that time is an essential contract element and mandates that schedules be realistic to ensure broad competition, support small business participation, and avoid unnecessary cost increases.

Key Rules

• Realism Requirement: Contracting Officers (COs) must ensure schedules are not unnecessarily short. Unrealistic schedules are prohibited as they restrict competition, disadvantage small businesses, and drive up prices.
• Evaluation Transparency: Solicitations must inform offerors how their proposed delivery or performance time will be evaluated, unless such information is clearly unnecessary.
• Expression of Schedules: Schedules may be expressed in four ways:
  1. Specific calendar dates.
  2. Specific periods from the date of the contract award.
  3. Specific periods from the date the contractor receives the notice of award.
  4. Specific periods after receipt of individual orders (common in IDIQ contracts).
• The "Mail/Electronic" Evaluation Rule: When evaluating bids based on a "date of contract" schedule:
  • Add 5 calendar days to the offered time if using ordinary mail to account for delivery.
  • Add 1 working day if using electronic transmittal.
  • If the resulting date exceeds the required date, the bid is deemed nonresponsive and must be rejected.
• Liquidated Damages: These may only be used if timely delivery is "unusually important" to the Government (referencing Subpart 11.5).

Responsibilities

• Contracting Officers (COs):
  • Developing realistic schedules based on market research and urgency.
  • Ensuring the government does not curtail performance time due to administrative delays in providing notice of award.
  • Selecting and inserting the correct delivery clauses (52.211-8 or 52.211-9) and their appropriate Alternates.
  • Providing evidence of receipt (e.g., certified mail) if the schedule is based on the date the contractor receives the award.
• The Government (Program/Technical Teams):
  • Performing obligations (such as providing Government-furnished property) within the timeframes specified to avoid delaying the contractor.
• Contractors:
  • Complying with "conditions precedent" to performance.
  • Proposing alternative schedules if the solicitation allows for a "Desired" vs. "Required" delivery time.

Practical Implications

• Bid Responsiveness: A bidder who fails to account for the government's 5-day or 1-day "administrative buffer" when proposing a delivery date from the date of receipt may inadvertently find their bid rejected as nonresponsive.
• Construction Complexity: In construction, the CO cannot simply pick a date; they must account for "Construction Seasons" (e.g., avoiding concrete pours in freezing temperatures) and the availability of specialized equipment, which prevents project failures and claims.
• Avoiding Incumbent Advantage: By requiring "realistic" schedules, the FAR prevents agencies from writing solicitations that only an incumbent (who already has staff and equipment on-site) could meet, thereby protecting the competitive marketplace.
• Protections Against Gov Delay: 11.403(b) serves as a shield for contractors; the government cannot wait two weeks to send an award notice and still expect the contractor to finish by the original deadline if that delay prejudices the contractor's ability to perform.