[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: 48CFR46]



[Page 869-870]

 

            TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM

 

                CHAPTER 1--FEDERAL ACQUISITION REGULATION

 

PART 46_QUALITY ASSURANCE--Table of Contents

 

           Subpart 46.4_Government Contract Quality Assurance

 

46.407  Nonconforming supplies or services.



    (a) The contracting officer should reject supplies or services not 

conforming in all respects to contract requirements (see 46.102). In 

those instances where deviation from this policy is found to be in the 

Government's interest, such supplies or services may be accepted only as 

authorized in this section.

    (b) The contracting officer ordinarily must give the contractor an 

opportunity to correct or replace nonconforming supplies or services 

when this can be accomplished within the required delivery schedule. 

Unless the contract specifies otherwise (as may be the case in some 

cost-reimbursement contracts), correction or replacement must be without 

additional cost to the Government. Subparagraph (e)(2) of the clause at 

52.246-2, Inspection of Supplies--Fixed-Price, reserves to the 

Government the right to charge the contractor the cost of Government 

reinspection and retests because of prior rejection.

    (c)(1) In situations not covered by paragraph (b) of this section, 

the contracting officer ordinarily must reject supplies or services when 

the nonconformance is critical or major or the supplies or services are 

otherwise incomplete. However, there may be circumstances (e.g., reasons 

of economy



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or urgency) when the contracting officer determines acceptance or 

conditional acceptance of supplies or services is in the best interest 

of the Government. The contracting officer must make this determination 

based upon--

    (i) Advice of the technical activity that the item is safe to use 

and will perform its intended purpose;

    (ii) Information regarding the nature and extent of the 

nonconformance or otherwise incomplete supplies or services;

    (iii) A request from the contractor for acceptance of the 

nonconforming or otherwise incomplete supplies or services (if 

feasible);

    (iv) A recommendation for acceptance, conditional acceptance, or 

rejection, with supporting rationale; and

    (v) The contract adjustment considered appropriate, including any 

adjustment offered by the contractor.

    (2) The cognizant contract administration office, or other 

Government activity directly involved, must, furnish this data to the 

contracting officer in writing, except that in urgent cases it may be 

furnished orally and later confirmed in writing. Before making a 

decision to accept, the contracting officer must, obtain the concurrence 

of the activity responsible for the technical requirements of the 

contract and, where health factors are involved, of the responsible 

health official of the agency concerned.

    (d) If the nonconformance is minor, the cognizant contract 

administration office may make the determination to accept or reject, 

except where this authority is withheld by the contracting office of the 

contracting activity. To assist in making this determination, the 

contract administration office may establish a joint contractor-contract 

administrative office review group. Acceptance of supplies and services 

with critical or major nonconformances is outside the scope of the 

review group.

    (e) The contracting officer must discourage the repeated tender of 

nonconforming supplies or services, including those with only minor 

nonconformances, by appropriate action, such as rejection and 

documenting the contractor's performance record.

    (f) When supplies or services are accepted with critical or major 

nonconformances as authorized in paragraph (c) of this section, the 

contracting officer must modify the contract to provide for an equitable 

price reduction or other consideration. In the case of conditional 

acceptance, amounts withheld from payments generally should be at least 

sufficient to cover the estimated cost and related profit to correct 

deficiencies and complete unfinished work. The contracting officer must 

document in the contract file the basis for the amounts withheld. For 

services, the contracting officer can consider identifying the value of 

the individual work requirements or tasks (subdivisions) that may be 

subject to price or fee reduction. This value may be used to determine 

an equitable adjustment for nonconforming services. However, when 

supplies or services involving minor nonconformances are accepted, the 

contract need not be modified unless it appears that the savings to the 

contractor in fabricating the nonconforming supplies or performing the 

nonconforming services will exceed the cost to the Government of 

processing the modification.

    (g) Notices of rejection must include the reasons for rejection and 

be furnished promptly to the contractor. Promptness in giving this 

notice is essential because, if timely nature of rejection is not 

furnished, acceptance may in certain cases be implied as a matter of 

law. The notice must, be in writing if--

    (1) The supplies or services have been rejected at a place other 

than the contractor's plant;

    (2) The contractor persists in offering nonconforming supplies or 

services for acceptance; or

    (3) Delivery or performance was late without excusable cause.



[48 FR 42415, Sept. 19, 1983, as amended at 61 FR 31663, June 20, 1996; 

62 FR 44816, Aug. 22, 1997; 64 FR 51846, Sept. 24, 1999]



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