Can cost plus fixed fee contracts include clause 52.246-12?
The following response is based solely on the question and background information provided. As we do not have all of the facts particular to your contract, program, and situation, we highly recommend you consult your Contracting Officer and Legal Office for guidance.
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Even though the prescription at FAR 46.312 for use of FAR 52.246-12, "Inspection of Construction" applies the clause to fixed-price construction contracts, the FAR matrix at 52.301 shows the clause as "A" (required when applicable) relative to cost-reimbursement construction (CR CON) contracts. It would appear to be applicable here. Notably, the matrix does NOT show FAR 52.246-3 "Inspection of Supplies - Cost-Reimbursement" or FAR 52.246-5, "Inspection of Services - Cost-Reimbursement" as applicable to CR CON contracts.
Also, both parties concurred with the clause when the proposal was submitted and the resulting contract was signed. The point in time to argue the applicability of a clause is prior to contract award.
Another area that could come into play here is the cost allowability, allocability and reasonableness necessary to reimburse a contractor in a cost-reimbursement environment. If the contractor's deviation was not authorized or approved, the contracting officer may need to consider whether those costs are excessive to the requirement.