I searched the FAR and I see where it states the Government should issue Notice to Proceed to the contractor before they begin work, but does it state anywhere in the FAR or other regulations that the CONTRACTOR shall not proceed without receiving Notice to Proceed from the Contracting Officer? Also, outside of the contractor working at risk and non-payment for any work performed prior to Government approval, are there any other repercussions I can assess on the contractor for performing without Government approval?
There may not be enough information to properly respond to the questions. Initially, I will ask questions and provide comments for the requestors consideration.
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Was a contract awarded? What work is the contractor performing or directing a subcontractor to perform? Design effort? Site preparation? Mobilization? Is the contract completion date tied to the contract award date or the notice to proceed date??
A Guaranteed Maximum Price (GMP) is similar to a "not-to-exceed" or cost reimbursement contract where the contractor is paid for allowable, allocable, and reasonable costs incurred plus a fixed fee up to the ceiling price amount.
Question: if you have not agreed to the GMP, how was the contract awarded and against what dollar value did the contractor obtain payment and performance
. Both bonds are typically for 100% of the contractually maximum value.
Performance prior to Notice-to-proceed - since all terms and conditions (GMP) have not been negotiated, what contractual authority does the government have to take action against the contractor?? The notice-to-proceed means "start work" under the terms and conditions of the contract, not whenever the contractor desires. Any performance prior to the notice-to-proceed could be at the contractors financial risk. However, if the effort directed by the prime contractor is early design work by an A&E subcontractor and the effort was acceptable would the government pay if a contract has been awarded? Probably! So withholding payment for work performed prior to the NTP may not be the best option! Why? A contract was awarded, funds are available, and the work was required at some point!
Other repercussions: negative comments on the "past performance" evaluation. A design build effort was probably source selected and past performance an evaluation factor. Therefore, a negative past performance rating in one area is a possibility for performing work prior to government direction.