Can the Contracting Officer allow a work element for mobilization and payment for completion of mobilization, if the Contracting Officer failed to include the DFARS Clause 252.236-7003 in the solicitation and contract? Furthermore, can the Contracting Officer allow for mobilization and payment for completion of mobilization if the contract is not 1) for major for special items of plant or equipment, or 2)large stockpiles of material which are in excess of the type, kind, and quantity which would be normal (DFARS 236.570)?
A contract does not have to have DFARS Clause 252.236-7003 in order for a contractor to get paid for their mobilization costs. One must look at the contract in total. The following two clause can impact the contractor’s ability to get paid for mobilization costs: FAR clause 52.232-5, Payments Under Fixed-Price Construction Contracts and FAR 52.236-15, Schedules for Construction Contracts.
First the Schedule clause FAR 52-236-15 requires the contractors to prepare and submit to the Contracting Officer for approval a practicable schedule showing the order in which the contractor proposes to perform the work, and the dates on which the contractor contemplates starting and completing the salient features of the work (including acquiring materials, plant, and equipment). The schedule shall be in the form of a progress chart of suitable scale to indicate appropriately the percentage of work scheduled for completion by any given date during the period. This could provide the first basis for the Contracting Officer to consider paying mobilization costs when combined with FAR clause 52.232-5, Payments Under Fixed-Price Construction Contracts, considering this clause is also in your contract.
FAR 52-232-5 clause allows the Contracting Office to make progress payments monthly as the work proceeds, or at more frequent intervals (based on Contracting Officer discretion), on estimates of work accomplished which meets the standards of quality established under the contract, as approved by the Contracting Officer.
As the contractor, the request for progress payments will have to include the following substantiation:
(i) An itemization of the amounts requested, related to the various elements of work required by the contract covered by the payment requested.
(ii) A listing of the amount included for work performed by each subcontractor under the contract.
(iii) A listing of the total amount of each subcontract under the contract.
(iv) A listing of the amounts previously paid to each such subcontractor under the contract.
(v) Additional supporting data in a form and detail required by the Contracting Officer.
Additionally, the Contracting Officer may authorize material delivered on the site and preparatory work done to be taken into consideration for payment. Material delivered to the Contractor at locations other than the site also may be taken into consideration if --
(i) Consideration is specifically authorized by this contract; and
(ii) The Contractor furnishes satisfactory evidence that it has acquired title to such material and that the material will be used to perform this contract.
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While paying for mobilization as a separate item is at the Contracting Officer discretion in this scenario, a contractor can better make their case by putting together a good detailed schedule that shows the time and cost breakdown for mobilization. This would the flow into the progress payment under FAR clause 52.232-5.