46.710 Contract clauses
Source: FAR 46.710 on acquisition.gov
FAR 46.710 guides contracting officers on selecting and tailoring warranty clauses and alternates to fit the specific needs of each contract, ensuring both compliance and flexibility.
Overview
FAR 46.710 prescribes the use of specific warranty clauses and their alternates in government solicitations and contracts where warranties are appropriate. It provides contracting officers with guidance on selecting and tailoring warranty clauses based on the nature of the supplies, services, or construction involved, as well as the contract type (e.g., fixed-price, incentive). The section emphasizes flexibility, allowing contracting officers to modify terms and conditions to suit particular acquisition needs, provided agency procedures are followed and the conditions for each alternate are considered.
Key Rules
- Warranty Clauses for Noncomplex Supplies (52.246-17)
- Use for fixed-price supply contracts for noncomplex items, with alternates for transportation costs, sole-source items, incentive contracts, and high disassembly/reassembly costs.
- Warranty Clauses for Complex Supplies (52.246-18)
- Use for fixed-price supply or R&D contracts for complex items, with alternates for transportation, incentive contracts, and high recovery costs.
- Warranty of Systems and Equipment (52.246-19)
- Use when performance specifications or design criteria are critical, with alternates for transportation, incentive contracts, and high recovery costs.
- Warranty of Services (52.246-20)
- Use for fixed-price service contracts unless 52.246-19 is used.
- Warranty of Construction (52.246-21)
- Use for fixed-price construction contracts, with an alternate for specified brand name equipment.
Responsibilities
- Contracting Officers: Must select and tailor appropriate warranty clauses and alternates, ensure agency approval, and consider contract specifics.
- Contractors: Must comply with the warranty terms and conditions included in their contracts.
- Agencies: Must establish procedures for approving the use of warranty clauses and oversee compliance.
Practical Implications
- This section ensures that warranties are appropriately included and tailored in government contracts, protecting the government's interests while allowing flexibility for unique acquisition needs. Contractors should carefully review warranty clauses and any alternates to understand their obligations, especially regarding transportation, recovery costs, and design responsibility. Common pitfalls include misunderstanding which alternate applies or failing to comply with agency-specific procedures.
The clauses and alternates prescribed in this section may be used in solicitations and contracts in which inclusion of a warranty is appropriate (see 46.709 for warranties for commercial products and commercial services). However, because of the many situations that may influence the warranty terms and conditions appropriate to a particular acquisition, the contracting officer may vary the terms and conditions of the clauses and alternates to the extent necessary. The alternates prescribed in this section address the clauses; however, the conditions pertaining to each alternate must be considered if the terms and conditions are varied to meet a particular need.
(a)
(1) The contracting officer may insert a clause substantially the same as the clause at 52.246-17, Warranty of Supplies of a Noncomplex Nature, in solicitations and contracts for noncomplex items when a fixed-price supply contract is contemplated and the use of a warranty clause has been approved under agency procedures. If the contractor’s design rather than the Government’s design will be used, insert the word "design" before "material" in paragraph (b)(1)(i).
(2) If it is desirable to specify that necessary transportation incident to correction or replacement will be at the Government’s expense (as might be the case if, for example, the cost of a warranty would otherwise be prohibitive), the contracting officer may use the clause with its Alternate II.
(3) If the supplies cannot be obtained from another source, the contracting officer may use the clause with its Alternate III.
(4) If a fixed-price incentive contract is contemplated, the contracting officer may use the clause with its Alternate IV.
(5) If it is anticipated that recovery of the warranted items will involve considerable Government expense for disassembly and/or reassembly of larger items, the contracting officer may use the clause with its Alternate V.
(b)
(1) The contracting officer may insert a clause substantially the same as the clause at 52.246-18, Warranty of Supplies of a Complex Nature, in solicitations and contracts for deliverable complex items when a fixed-price supply or research and development contract is contemplated and the use of a warranty clause has been approved under agency procedures. If the contractor’s design rather than the Government’s design will be used, insert the word "design" before "material" in paragraph (b)(1).
(2) If it is desirable to specify that necessary transportation incident to correction or replacement will be at the Government’s expense (as might be the case if, for example, the cost of a warranty would otherwise be prohibitive), the contracting officer may use the clause with its Alternate II.
(3) If a fixed-price incentive contract is contemplated, the contracting officer may use the clause with its Alternate III.
(4) If it is anticipated that recovery of the warranted item will involve considerable Government expense for disassembly and/or reassembly of larger items, the contracting officer may use the clause with its Alternate IV.
(c)
(1) The contracting officer may insert a clause substantially the same as the clause at 52.246-19, Warranty of Systems and Equipment under Performance Specifications or Design Criteria, in solicitations and contracts when performance specifications or design are of major importance; a fixed-price supply, service, or research and development contract for systems and equipment is contemplated; and the use of a warranty clause has been approved under agency procedures.
(2) If it is desirable to specify that necessary transportation incident to correction or replacement will be at the Government’s expense (as might be the case if, for example, the cost of a warranty would otherwise be prohibitive), the contracting officer may use the clause with its Alternate I.
(3) If a fixed-price incentive contract is contemplated, the contracting officer may use the clause with its Alternate II.
(4) If it is anticipated that recovery of the warranted item will involve considerable Government expense for disassembly and/or reassembly of larger items, the contracting officer may use the clause with its Alternate III.
(d) The contracting officer may insert a clause substantially the same as the clause at 52.246-20, Warranty of Services, in solicitations and contracts for services when a fixed-price contract for services is contemplated and the use of warranty clause has been approved under agency procedures; unless a clause substantially the same as the clause at 52.246-19, Warranty of Systems and Equipment under Performance Specifications or Design Criteria, has been used.
(e)
(1) The contracting officer may insert a clause substantially the same as the clause at 52.246-21, Warranty of Construction, in solicitations and contracts when a fixed-price construction contract (see 46.705(c)) is contemplated and the use of a warranty clause has been approved under agency procedures.
(2) If the Government specifies in the contract the use of any equipment by "brand name and model," the contracting officer may use the clause with its Alternate I.