Does the DFAR / FAR / Fiscal law authorize an emergency modification to a construction contract without funds currently available and without a Modification complete?
Can a contractor volunteer themselves to go ahead and fix the emergency construction situation knowing they may never be reimbursed? (but hope they will be reimbursed?)
Can we retroactively pay the contractor for the emergency repair that they volunteered themselves to do?
The out right answer to your question is NO you cannot tell the contractor to proceed without ensuring that all requirements of law, executive orders, regulations, and all other applicable procedures, including clearances and approvals, have been met and this includes funding (see FAR 1.602-1 and FAR 1.602-2 excerpts below).
What can you do in an emergency situation like this? I caveat my response as a possible solution but I do not have the contract in front of me. When an emergency like yours arises one must respond quickly. If there was sufficient funds still remaining from uncompleted work on the contract, I would immediately suspend work on the remaining portion. Use the funds from that work to initiate an undefinitized contract action and direct work to repair the roof damage created by the emergency situation. Once the emergency subsided, I would seek additional funds to complete the original project. If no funds become available, then the task order would have to be terminated for convenience.
No matter what you do you will need to seek additional funds to complete this project either for the emergency repair or the added cost of repairs if the emergency fix is not taken care of.
1.602-1 -- Authority.
(a) Contracting officers have authority to enter into, administer, or terminate contracts and make related determinations and findings. Contracting officers may bind the Government only to the extent of the authority delegated to them. Contracting officers shall receive from the appointing authority (see 1.603-1) clear instructions in writing regarding the limits of their authority. Information on the limits of the contracting officers’ authority shall be readily available to the public and agency personnel.
(b) No contract shall be entered into unless the contracting officer ensures that all requirements of law, executive orders, regulations, and all other applicable procedures, including clearances and approvals, have been met.
1.602-2 -- Responsibilities.
Contracting officers are responsible for ensuring performance of all necessary actions for effective contracting, ensuring compliance with the terms of the contract, and safeguarding the interests of the United States in its contractual relationships. In order to perform these responsibilities, contracting officers should be allowed wide latitude to exercise business judgment. Contracting officers shall --
(a) Ensure that the requirements of 1.602-1(b) have been met, and that sufficient funds are available for obligation;
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