FAR 33.213—Obligation to continue performance.
Plain-English Summary
FAR 33.213 explains when a contractor must keep performing while a dispute is being resolved, and how that obligation differs depending on whether the claim arises under the contract or merely relates to the contract. It ties the rule to the Disputes statute at 41 U.S.C. 7103(g) and to the disputes clause at 52.233-1, including Alternate I, which is used to address disputes relating to the contract. The section also defines the key distinction between a claim "arising under" a contract and a claim "relating to" a contract, because that distinction affects whether the Government can require continued performance and whether financing of continued performance should be considered. In practice, this section is about keeping work moving during disputes, protecting the Government’s operational needs, and ensuring that contractors are not forced to stop performance simply because a claim is unresolved. It also signals that, for certain disputes, the contracting officer should consider financing options if the Government’s interest can be adequately secured.
Key Rules
Continue performance pending resolution
Under the Disputes statute, agencies may require a contractor to continue performing in accordance with the contracting officer’s decision until a claim is finally resolved. This rule applies to claims arising under or relating to the contract, not just traditional contract-administration claims.
Differentiate claim types
A claim "arising under" the contract is one that can be resolved under some contract clause other than the Disputes clause, although the claim may also be pursued under the Disputes clause. A claim "relating to" the contract is one that cannot be resolved under any other contract clause and must be handled under the Disputes clause.
Alternate I recognizes the distinction
The distinction between claims arising under and relating to the contract is reflected in the Disputes clause when Alternate I is used. Contracting officers should understand this because the clause structure affects how disputes are administered and what remedies are available.
Consider financing for related disputes
For contracts that include 52.233-1 with Alternate I, if a dispute does not arise under the contract but relates to it, the contracting officer should consider providing financing for continued performance through appropriate agency procedures. This is conditioned on the Government’s interest being properly secured.
Protect the Government’s interest
Any financing of continued performance must be structured so the Government is adequately protected. The section does not require financing in every case; it requires consideration of financing where appropriate and where security for the Government can be ensured.
Responsibilities
Contracting Officer
Determine whether a dispute is a claim arising under the contract or relating to the contract; require continued performance when authorized; apply the Disputes clause and Alternate I correctly; and, for disputes relating to the contract, consider whether agency financing of continued performance is appropriate and adequately secured.
Agency
Use appropriate internal procedures to provide financing of continued performance when the contracting officer determines it is warranted and the Government’s interest can be properly secured. Agencies must support the contracting officer’s ability to keep performance going during disputes.
Contractor
Continue contract performance in accordance with the contracting officer’s decision while the claim is pending final resolution, when the statute and contract clause require it. The contractor must not suspend work simply because a dispute exists, unless otherwise authorized by the contract or law.
Government
Maintain the ability to obtain needed performance during disputes and ensure any financing or continued-performance arrangement protects the Government’s interests. The Government must administer disputes in a way that preserves contract continuity and legal rights.
Practical Implications
This section is a strong anti-stop-work rule: contractors generally cannot use a pending dispute as a reason to halt performance when the contracting officer has directed continued performance.
The key practical issue is classification of the claim. Mislabeling a claim as "arising under" or "relating to" the contract can lead to the wrong dispute process, the wrong clause interpretation, or missed financing options.
Contracting officers should think early about whether Alternate I applies and whether agency procedures allow financing if the dispute is outside the scope of a clause-based remedy.
Contractors should plan for cash flow and performance continuity during disputes, especially when the Government may require work to continue before final resolution.
A common pitfall is assuming that a dispute automatically excuses performance; this section generally points the other way and preserves the Government’s right to keep the contract moving while the dispute is decided.
Official Regulatory Text
(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 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.