Atch_1t_FAR_52.246-21.pdf

Federal Acquisition Regulation 52.246–21 and contracts when a fixed-price con-tract for services is contemplated and the use of a warranty clause has been approved under agency procedures, un-less a clause substantially the same as the clause at 52.246–19, Warranty of Systems and Equipment under Per-formance Specifications or Design Cri-teria, has been used:

WARRANTY OF SERVICES (APR 1984)

(a) Definitions. Acceptance, as used in this clause, means the act of an authorized rep-resentative of the Government by which the Government assumes for itself, or as an agent of another, ownership of existing and identified supplies, or approves specific serv-ices, as partial or complete performance of the contract.

Correction, as used in this clause, means the elimination of a defect.

(b) Notwithstanding inspection and accept-ance by the Government or any provision concerning the conclusiveness thereof, the Contractor warrants that all services per-formed under this contract will, at the time of acceptance, be free from defects in work-manship and conform to the requirements of this contract. The Contracting Officer shall give written notice of any defect or non-conformance to the Contractor ll [Con-tracting Officer shall insert the specific period of time in which notice shall be given to the Contractor; e.g., within 30 days from the date of acceptance by the Government,; within 1000 hours of use by the Government,; or other specified event whose occurrence will termi-nate the period of notice, or combination of any applicable events or period of time].

This notice shall state either (1) that the Contractor shall correct or reperform any defective or nonconforming services, or (2) that the Government does not require cor-rection or reperformance.

(c) If the Contractor is required to correct or reperform, it shall be at no cost to the Government, and any services corrected or reperformed by the Contractor shall be sub-ject to this clause to the same extent as work initially performed. If the Contractor fails or refuses to correct or reperform, the Contracting Officer may, by contract or oth-erwise, correct or replace with similar serv-ices and charge to the Contractor the cost occasioned to the Government thereby, or make an equitable adjustment in the con-tract price.

(d) If the Government does not require cor-rection or reperformance, the Contracting Officer shall make an equitable adjustment in the contract price.

(End of clause)

52.246–21 Warranty of Construction.

As prescribed in 46.710(e)(1), the con-tracting officer may insert a clause substantially as follows in solicitations and contracts when a fixed-price con-struction contract (see 46.705(c)) is con-templated, and the use of a warranty clause has been approved under agency procedures:

WARRANTY OF CONSTRUCTION (APR 1984)

(a) In addition to any other warranties in this contract, the Contractor warrants, ex-cept as provided in paragraph (i) of this clause, that work performed under this con-tract conforms to the contract requirements and is free of any defect in equipment, mate-rial, or design furnished, or workmanship performed by the Contractor or any sub-contractor or supplier at any tier.

(b) This warranty shall continue for a pe-riod of 1 year from the date of final accept-ance of the work. If the Government takes possession of any part of the work before final acceptance, this warranty shall con-tinue for a period of 1 year from the date the Government takes possession.

(c) The Contractor shall remedy at the Contractor’s expense any failure to conform, or any defect. In addition, the Contractor shall remedy at the Contractor’s expense any damage to Government-owned or controlled real or personal property, when that damage is the result of—

(1) The Contractor’s failure to conform to contract requirements; or

(2) Any defect of equipment, material, workmanship, or design furnished.

(d) The Contractor shall restore any work damaged in fulfilling the terms and condi-tions of this clause. The Contractor’s war-ranty with respect to work repaired or re-placed will run for 1 year from the date of re-pair or replacement.

(e) The Contracting Officer shall notify the Contractor, in writing, within a reasonable time after the discovery of any failure, de-fect, or damage.

(f) If the Contractor fails to remedy any failure, defect, or damage within a reason-able time after receipt of notice, the Govern-ment shall have the right to replace, repair, or otherwise remedy the failure, defect, or damage at the Contractor’s expense.

(g) With respect to all warranties, express or implied, from subcontractors, manufac-turers, or suppliers for work performed and materials furnished under this contract, the Contractor shall—

(1) Obtain all warranties that would be given in normal commercial practice;

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48 CFR Ch. 1 (10–1–98 Edition)52.246–22

(2) Require all warranties to be executed, in writing, for the benefit of the Govern-ment, if directed by the Contracting Officer;

and

(3) Enforce all warranties for the benefit of the Government, if directed by the Contract-ing Officer.

(h) In the event the Contractor’s warranty under paragraph (b) of this clause has ex-pired, the Government may bring suit at its expense to enforce a subcontractor’s, manu-facturer’s, or supplier’s warranty.

(i) Unless a defect is caused by the neg-ligence of the Contractor or subcontractor or supplier at any tier, the Contractor shall not be liable for the repair of any defects of ma-terial or design furnished by the Government nor for the repair of any damage that results from any defect in Government-furnished material or design.

(j) This warranty shall not limit the Gov-ernment’s rights under the Inspection and Acceptance clause of this contract with re-spect to latent defects, gross mistakes, or fraud.

(End of clause)

Alternate I (APR 1984). If the Govern-ment specifies in the contract the use of any equipment by brand name and model, the contracting officer may add a paragraph substantially the same as the following paragraph (k) to the basic clause:

(k) Defects in design or manufacture of equipment specified by the Government on a brand name and model basis, shall not be in-cluded in this warranty. In this event, the Contractor shall require any subcontractors, manufacturers, or suppliers thereof to exe-cute their warranties, in writing, directly to the Government.

[48 FR 42478, Sept. 19, 1983, as amended at 59 FR 11388, Mar. 10, 1994]

52.246–22 [Reserved]

52.246–23 Limitation of Liability.

As prescribed in 46.805, insert the fol-lowing clause:

LIMITATION OF LIABILITY (FEB 1997)

(a) Except as provided in paragraphs (b) and (c) below, and except for remedies ex-pressly provided elsewhere in this contract, the Contractor shall not be liable for loss of or damage to property of the Government (excluding the supplies delivered under this contract) that (1) occurs after Government acceptance of the supplies delivered under this contract and (2) results from any defects or deficiencies in the supplies.

(b) The limitation of liability under para-graph (a) above shall not apply when a defect or deficiency in, or the Government’s accept-ance of, the supplies results from willful mis-conduct or lack of good faith on the part of any of the Contractor’s managerial person-nel. The term Contractor’s managerial person-nel, as used in this clause, means the Con-tractor’s directors, officers, and any of the Contractor’s managers, superintendents, or equivalent representatives who have super-vision or direction of—

(1) All or substantially all of the Contrac-tor’s business;

(2) All or substantially all of the Contrac-tor’s operations at any one plant, labora-tory, or separate location at which the con-tract is being performed; or

(3) A separate and complete major indus-trial operation connected with the perform-ance of this contract.

(c) If the Contractor carries insurance, or has established a reserve for self-insurance, covering liability for loss or damage suffered by the Government through purchase or use of the supplies required to be delivered under this contract, the Contractor shall be liable to the Government, to the extent of such in-surance or reserve, for loss of or damage to property of the Government occurring after Government acceptance of, and resulting from any defects or deficiencies in, the sup-plies delivered under this contract.

(End of clause)

[48 FR 42478, Sept. 19, 1983, as amended at 60 FR 34762, July 3, 1995; 61 FR 67426, Dec. 20, 1996]

52.246–24 Limitation of Liability— High-Value Items.

As prescribed in 46.805, insert the fol-lowing clause:

LIMITATION OF LIABILITY—HIGH-VALUE ITEMS

(FEB 1997)

(a) Except as provided in paragraphs (b) through (e) below, and notwithstanding any other provision of this contract, the Contrac-tor shall not be liable for loss of or damage to property of the Government (including the supplies delivered under this contract) that (1) occurs after Government acceptance of the supplies delivered under this contract and (2) results from any defects or defi-ciencies in the supplies.

(b) The limitation of liability under para-graph (a) above shall not apply when a defect or deficiency in, or the Government’s accept-ance of, the supplies results from willful mis-conduct or lack of good faith on the part of any of the Contractor’s managerial person-nel. The term Contractor’s managerial person-nel, as used in this clause, means the Con-tractor’s directors, officers, and any of the

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