46.407 Nonconforming supplies or services
Source: FAR 46.407 on acquisition.gov
Nonconforming supplies or services must be rejected unless acceptance is justified and documented, with corrective actions, contract modifications, and prompt communication required to protect government interests.
Overview
FAR 46.407 outlines the procedures and requirements for handling nonconforming supplies or services in government contracts. The regulation emphasizes that supplies or services not meeting contract requirements should generally be rejected, but allows for exceptions when it is in the Government’s interest. It details the process for correction or replacement, acceptance of nonconforming items, contract modifications, and documentation requirements. The section also addresses the handling of minor versus major nonconformances, the need for prompt and written rejection notices, and special instructions for counterfeit or suspect counterfeit items.
Key Rules
- Rejection of Nonconforming Supplies or Services
- Contracting officers should reject items not meeting contract requirements unless acceptance is justified and authorized.
- Opportunity to Correct or Replace
- Contractors must be given a chance to correct or replace nonconforming items within the delivery schedule, typically at no extra cost to the Government.
- Acceptance of Nonconforming Items
- Acceptance or conditional acceptance is allowed only when justified (e.g., urgency, economy) and must be supported by technical advice, contractor requests, and appropriate contract adjustments.
- Handling Minor Nonconformances
- Minor nonconformances may be accepted or rejected by the contract administration office, unless authority is withheld.
- Contract Modifications and Price Adjustments
- Acceptance of critical or major nonconformances requires contract modification for equitable price reduction or other consideration.
- Prompt and Written Notice of Rejection
- Contractors must be promptly notified of rejection, with written notice required in specific circumstances.
- Counterfeit Items
- Contracting officers must follow agency policy for disposition of counterfeit or suspect counterfeit items.
Responsibilities
- Contracting Officers: Must reject nonconforming items unless justified, provide opportunities for correction, document decisions, issue prompt/written rejection notices, and modify contracts as needed.
- Contractors: Must correct or replace nonconforming items at no extra cost, respond to rejection notices, and comply with instructions for counterfeit items.
- Agencies: Must provide technical advice, support contract administration, and establish policies for counterfeit items.
Practical Implications
- Ensures only supplies/services meeting contract requirements are accepted, protecting government interests.
- Requires clear documentation and communication to avoid implied acceptance.
- Failure to follow procedures can result in payment for nonconforming items or legal disputes over acceptance.
(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. Paragraph (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 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.
(h) The contracting officer shall provide disposition instructions for counterfeit or suspect counterfeit items in accordance with agency policy. Agency policy may require the contracting officer to direct the contractor to retain such items for investigative or evidentiary purposes.