33.213 Obligation to continue performance
Source: FAR 33.213 on acquisition.gov
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.
(a) In general, before passage of the Disputes statute, the obligation to continue performance applied only to claims arising under a contract. However, the Disputes statute, at http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section7103(g)&num=0&edition=prelim" target="_blank">41 U.S.C. 7103(g), authorizes agencies to require a contractor to continue contract performance in accordance with the contracting officer’s decision pending a final resolution of any claim arising under, or relating to, the contract. (A claim arising under a contract is a claim that can be resolved under a contract clause, other than the clause at 52.233-1, Disputes, that provides for the relief sought by the claimant; however, relief for such claim can also be sought under the clause at 52.233-1. A claim relating to a contract is a claim that cannot be resolved under a contract clause other than the clause at 52.233-1.) This distinction is recognized by the clause with its AlternateI (see 33.215).
(b) In all contracts that include the clause at 52.233-1, Disputes, with its AlternateI, in the event of a dispute not arising under, but relating to, the contract, the contracting officer shall consider providing, through appropriate agency procedures, financing of the continued performance; provided, that the Government’s interest is properly secured.