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    Who is responsible for allowing the contractor to perform services without a funded task order from the start of OY-1 (4/01/22 to present)? Is it the contractor's fault for working without a task order and is it inherently the contractor's responsibility to know the fact that they where providing services without an active funded task order? Or, it is the CO's responsibility for letting the contractor work knowing there was not an active task order in place due to the fact the contractor's registration in SAM.GOV expired? Or, does the responsibility rest with someone else for allowing the contractor to work without a funded task order for this period of time, and if so, who would this person be? Is this scenario one where the government will have to pay the contractor for their services or is this a scenario where the contractor should have known better? Please provide references as well. Thank You

    Answer

    This is a constructive change scenario The FAR does not define that, it's based on case law. I would talk to your Contracting Attorney. It's also not an unauthorized commitment because the CO authorized the work (or did nothing to stop it) and the CO has the authority to enter into the agreement (see FAR 1.602-1(a)).

    However, what was violated was FAR 1.602-2(a): the CO did not ensure adequate funds were available for obligation. Also violated was the tenent of FAR subpart 4.1 Contract Execution in that no written contract was executed; see the definition of a contract in FAR 2.101 which states that "... except as otherwise authorized, are in writing."

    You will also want to check your VAAR to see if your agency has implementing or supplementing language for the above citations.

    Interesting Fact: Some agencies have recently issued class deviations which waive the requirement for the contractor to be registered in SAM.gov prior to award. These have been issued because of the very issues you included in question and background (backlog in registrations due to issues with the site).

     

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