Contract Spotlight - The Duty To Perform During Disputes

Every day, government contractors are faced with the tension of trying to walk the fine line between what the government wants and what a contract actually requires. Contractors shoulder a heavy burden trying to please their government customers, and it can be difficult to know what action to take when faced with a controversy or genuine dispute. When faced with this conundrum, contractors need to look at what the terms of the contract actually require.

The disputes clause of the contract states that "[t]he Contractor shall proceed diligently with performance of this contract, pending final resolution of any request for relief, claim, appeal, or action arising under the contract, and comply with any decision of the Contracting Officer." This requirement applies either under the normal disputes clause, FAR 52.233-1, or, in the context of commercial items, FAR 52.212(d). Commonly called "the duty to proceed," this requirement essentially mandates that performance of