[Code of Federal Regulations]

[Title 48, Volume 1]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 48CFR12.404]



[Page 202]

 

            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 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).