Continuing Performance Under FAR 33.213: Contractor Dispute Checklist
When an aggressive disagreement over design interpretation, site conditions, or compensation strikes a federal project, walking off the jobsite is one of the most perilous mistakes a contractor can make. Under federal procurement standards, the baseline rule is that you must continue to work while disagreements are formally resolved. The regulatory framework set out in FAR 33.213 Obligation to continue performance establishes when and how an agency can compel contractors to maintain progress during an ongoing controversy. For framing contractors, ceiling installers, and commercial builders navigating these conflicts, keeping crew operations aligned with federal rules protects your legal standing and your cash flow.
1. Identify Whether the Claim Arises Under or Relates to the Contract
Before taking any procedural steps during a conflict, contractors must determine how the underlying dispute is classified. FAR 33.213 explains that prior to the enactment of the Disputes statute, the duty to continue performance applied only to claims arising under a contract. The statute changed this framework, giving agencies broader enforcement powers.
Under the regulation, claims fall into two distinct categories:
- Claims arising under a contract: These are disputes that can be resolved under a specific contract clause (other than the general disputes clause) that provides for the relief sought by the contractor. For example, equitable adjustments sought through standard modification language or through procedures for pricing change orders typically fall into this group. Such relief may also be pursued under the standard disputes mechanism.
- Claims relating to a contract: These are defined as claims that cannot be resolved under any contract clause other than the dedicated clause at 52.233-1, Disputes.
2. Check Which Version of the Disputes Clause Governs the Project
The scope of your duty to proceed depends directly on whether your prime agreement includes the baseline disputes clause or incorporates Alternate I. Trade subcontractors must review prime contract flow-down terms to confirm which text governs their daily operations.
Under the statutory authority of 41 U.S.C. 7103(g), agencies are authorized to require a contractor to continue contract performance in accordance with the contracting officer's decision while awaiting a final resolution of any claim arising under, or relating to, the contract. However, as recognized in FAR 33.213 and prescribed in 33.215, this distinction is implemented through the contract language itself. While basic disputes language focuses on claims arising under the agreement, contracts that include the FAR 52.233-1 Disputes clause with its Alternate I explicitly extend the mandate to proceed to claims relating to the contract as well.
3. Align Field Progress with the Contracting Officer's Written Direction
Once a dispute matures, the contracting officer issues instructions that govern how work must proceed. Under 41 U.S.C. 7103(g) and FAR 33.213(a), the contractor is required to continue contract performance in accordance with the contracting officer's decision pending final resolution of the claim.
In practice, field teams cannot unilaterally alter installation methods or halt production simply because a claim has been submitted. Even if the contractor strongly disagrees with the contracting officer's interpretation of the specifications, work must continue according to that written decision while the dispute winds through administrative or legal channels.
4. Evaluate Eligibility for Continued Performance Financing
Continuing to mobilize crews, purchase raw materials, and install drywall or framing without immediate payment creates severe financial strain. Fortunately, FAR 33.213 outlines a specific form of financial relief that estimators and project executives must evaluate when disputes arise.
Under FAR 33.213(b), in all contracts containing the clause at 52.233-1 with its Alternate I, a specific duty applies to the government when the dispute does not arise under, but relates to, the contract. In that situation, the contracting officer shall consider providing financing for the continued performance through appropriate agency procedures. This relief is subject to one central condition: the government's interest must be properly secured.
5. Dispute Continuation Action Checklist for Subcontractors and GCs
To avoid default allegations while protecting your monetary recovery, apply this checklist whenever a contract dispute arises on a federal project:
- Verify contract provisions: Examine the solicitation and award documents to see if clause 52.233-1 is incorporated with Alternate I (as referenced in FAR 33.215).
- Classify the legal basis: Establish whether the relief sought is available under another contract clause (arising under) or solely through the disputes clause (relating to).
- Obtain the decision in writing: Secure the contracting officer's clear directions so your crews perform exactly in accordance with the required standard.
- Request agency financing where applicable: If Alternate I applies and the dispute relates to the contract, formally request that the contracting officer consider financing continued performance while offering terms to ensure the government's interest is properly secured.
- Maintain segregated accounting: Track all labor hours, material receipts, and equipment usage specifically associated with the disputed scope while overall contract execution continues.
Sources
Published November 9, 2026. No affiliate links on this page. Facts come from the sources linked above; check them for updates.