[Code of Federal Regulations]
[Title 48, Volume 1]
[Revised as of October 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 48CFR12.404]

[Page 192-193]
 
            TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM
 
                CHAPTER 1--FEDERAL ACQUISITION REGULATION
 
PART 12_ACQUISITION OF COMMERCIAL ITEMS--Table of Contents
 
  Subpart 12.4_Unique Requirements Regarding Terms and Conditions for 
                            Commercial Items
 
Sec.  12.404  Warranties.

    (a) Implied warranties. The Government's post award rights contained 
in 52.212-4 are the implied warranty of merchantability, the implied 
warranty of fitness for particular purpose and the remedies contained in 
the acceptance paragraph.
    (1) The implied warranty of merchantability provides that an item is 
reasonably fit for the ordinary purposes for which such items are used. 
The items must be of at least average, fair or medium-grade quality and 
must be comparable in quality to those that will pass without objection 
in the trade or market for items of the same description.
    (2) The implied warranty of fitness for a particular purpose 
provides that an item is fit for use for the particular purpose for 
which the Government will use the items. The Government can rely upon an 
implied warranty of fitness for particular purpose when--
    (i) The seller knows the particular purpose for which the Government 
intends to use the item; and
    (ii) The Government relied upon the contractor's skill and judgment 
that the item would be appropriate for that particular purpose.
    (3) Contracting officers should consult with legal counsel prior to 
asserting any claim for a breach of an implied warranty.
    (b) Express warranties. The Federal Acquisition Streamlining Act of 
1994 (41 U.S.C. 264 note) requires contracting officers to take 
advantage of commercial warranties. To the maximum extent practicable, 
solicitations for commercial items shall require offerors to offer the 
Government at least the same warranty terms, including offers of 
extended warranties, offered to the general public in customary 
commercial practice. Solicitations may specify minimum warranty

[[Page 193]]

terms, such as minimum duration, appropriate for the Government's 
intended use of the item.
    (1) Any express warranty the Government intends to rely upon must 
meet the needs of the Government. The contracting officer should analyze 
any commercial warranty to determine if--
    (i) The warranty is adequate to protect the needs of the Government, 
e.g., items covered by the warranty and length of warranty;
    (ii) The terms allow the Government effective postaward 
administration of the warranty to include the identification of 
warranted items, procedures for the return of warranted items to the 
contractor for repair or replacement, and collection of product 
performance information; and
    (iii) The warranty is cost-effective.
    (2) In some markets, it may be customary commercial practice for 
contractors to exclude or limit the implied warranties contained in 
52.212-4 in the provisions of an express warranty. In such cases, the 
contracting officer shall ensure that the express warranty provides for 
the repair or replacement of defective items discovered within a 
reasonable period of time after acceptance.
    (3) Express warranties shall be included in the contract by addendum 
(see 12.302).