Obligation to continue performance
Contractors must continue performing contract work during dispute resolution unless otherwise directed, ensuring uninterrupted government operations.
Overview
FAR 33.213 outlines the contractor's obligation to continue performing contract work during the resolution of disputes, as authorized by the Disputes statute (41 U.S.C. 7103(g)). This section clarifies that agencies can require contractors to keep performing in accordance with the contracting officer’s decision, even when a claim arises under or relates to the contract. It distinguishes between claims "arising under" (resolvable by a specific contract clause) and claims "relating to" (not resolvable by any clause except the Disputes clause). For contracts containing the Disputes clause (FAR 52.233-1) with Alternate I, the contracting officer must consider providing financial support for continued performance in disputes relating to the contract, provided the Government’s interests are secured.
Key Rules
- Obligation to Continue Performance
- Contractors must continue performance as directed by the contracting officer during dispute resolution, regardless of whether the claim arises under or relates to the contract.
- Distinction Between Claim Types
- Claims "arising under" are covered by specific contract clauses; claims "relating to" are only covered by the Disputes clause.
- Financing Continued Performance
- For disputes relating to the contract (not arising under), the contracting officer should consider agency procedures for financing continued performance if the Government’s interest is protected.
Responsibilities
- Contracting Officers: Require continued performance, distinguish claim types, and consider financing for continued performance in certain disputes.
- Contractors: Must comply with the contracting officer’s decision and continue performance during disputes.
- Agencies: Ensure proper procedures and security for any financing provided during disputes.
Practical Implications
- Ensures contract work is not halted due to disputes, maintaining project continuity.
- Contractors must be prepared to continue work even when contesting a decision.
- Failure to continue performance can result in breach of contract or other penalties.