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    Is it permissible to pay a contractor when the work performed has never been formally definitized and modded? Is this just not a good idea, or is it forbidben by FAR?


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    Is it permissible to pay a contractor when the work performed has never been formally definitized and modded? "It depends…”
     
    ·  It depends on the type of “Contract.” If it is an Undefinitized Contract (UCA) or a Cost Plus Fixed Fee (paid by voucher) or a Time and Material (paid by voucher) then the answer is yes.  The Contractor can be paid if a NTE price is established while negotiations are ongoing to definitize.  Also, there is a limitation of 75% of the total NTE or total funded that can be paid. (Limitation of Cost Clause is required)
     
    ·  It depends if it is an IDIQ Contract, fixed hourly rate for Over and Above then the answer is no.  The total Over and above negotiated hours are agreed to using discrepancy work request; upon completion of the effort then the Contractor submits a request (could be interim) for payment certifying the actual over and above hours.  Then a bilateral modification is completed definitizing the cost.
     
    ·  The Contractor can submit request for interim Over and Above payments which would be definitized on a bilateral contract modification.  The Contractor would submit a request for final payment when the effort is complete. Then a final definitization modification would be executed.
     
    ·  DFAR CLAUSE 252.217-7028. DFAR 217.7701. FAR 42.30(a)(21): The Contractor shall promptly submit to the Contracting Officer, a proposal for the over and above work.  The Government and Contractor will then negotiate a settlement for the over and above work. Contract modifications will be executed to definitze all over and above work. 
     
     
    Is it permissible to pay a contractor when the work performed has never been formally definitized and modded? Is this just not a good idea, or is it forbidben by FAR?
     
    ·  DFAR CLAUSE 252.217-7028: Contract modifications will be executed to definitze all over and above work. You can use interim definitization payment modifications until the effort is completed then you would use a final definitization modification.
     
    Question Background: FFP comercial service contract. The Over & Above labor rate is FFP. The hours are dependent on the job to be performed.
    Contractor submits Over & Above work request, PCO "negotiates" and approves with a NTE price. This NTE is subject to increase, however, and often does, thus it is not possible to definitize a moving target.
    Contractor then submits for payment when work is done, but nothing has been definitzied or modded.
     
    ·  You definitize a “moving target” by using interim payment definitization modifications followed by a final definitization modification when the work is completed.

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