52.209-3 First Article Approval-Contractor Testing
Source: FAR 52.209-3 on acquisition.gov
FAR 52.209-3 requires contractors to conduct and report first article testing as specified, with strict notification, reporting, and approval procedures that can impact contract performance and risk.
Overview
FAR 52.209-3, First Article Approval-Contractor Testing, establishes the requirements for contractors to conduct and report on first article testing when specified in the contract. This clause is used when the Government requires the contractor to test a sample unit(s) of a product before full-scale production to ensure compliance with contract specifications. The clause details notification, reporting, approval/disapproval procedures, and the consequences of failure to comply. It also addresses cost allocation, risk, and the possibility of waiving the first article requirement if the contractor has previously supplied identical or similar items.
Key Rules
- First Article Testing and Notification
- Contractors must test specified units and notify the Contracting Officer in writing of the test schedule and location in advance.
- Submission and Review of Test Reports
- Contractors must submit a first article test report within a specified timeframe; the Government will respond with approval, conditional approval, or disapproval.
- Retesting and Costs
- If disapproved, contractors must repeat tests and bear all associated costs, including modifications or replacements.
- Default and Delivery
- Failure to deliver reports or obtain approval may trigger default provisions.
- Use of Approved First Article
- Approved first articles not destroyed in testing may be delivered as part of the contract quantity if compliant.
- Contractor Risk and Cost Allocation
- Production before approval is at the contractor’s risk, and related costs are not allocable unless authorized.
- Waiver of First Article Requirement
- The Government may waive the requirement if the contractor has previously supplied acceptable identical or similar items.
- Alternates
- Alternate I requires production at the same facility; Alternate II allows limited pre-approval production with written authorization.
Responsibilities
- Contracting Officers: Specify test details, review reports, issue approvals/disapprovals, and manage waivers or authorizations.
- Contractors: Conduct tests, notify the Government, submit reports, comply with approvals/disapprovals, and bear costs for retesting.
- Agencies: Oversee compliance, manage risk, and ensure timely review and communication.
Practical Implications
- Ensures product quality and compliance before full production.
- Delays or failures in testing/reporting can lead to default or financial risk for contractors.
- Contractors must carefully manage timelines, documentation, and communication to avoid costly retesting or contract issues.
As prescribed in 9.308-1(a) and (b), insert the following clause:
First Article Approval-Contractor Testing (Sept 1989)
[Contracting Officer shall insert details]
(a) The Contractor shall test _____ unit(s) of Lot/Item _____ as specified in this contract. At least _____ calendar days before the beginning of first article tests, the Contractor shall notify the Contracting Officer, in writing, of the time and location of the testing so that the Government may witness the tests.
(b) The Contractor shall submit the first article test report within _____ calendar days from the date of this contract to _____ [insert address of the Government activity to receive the report] marked "First Article Test Report: Contract No. _______, Lot/Item No. _______" Within _____ calendar days after the Government receives the test report, the Contracting Officer shall notify the Contractor, in writing, of the conditional approval, approval, or disapproval of the first article. The notice of conditional approval or approval shall not relieve the Contractor from complying with all requirements of the specifications and all other terms and conditions of this contract. A notice of conditional approval shall state any further action required of the Contractor. A notice of disapproval shall cite reasons for the disapproval.
(c) If the first article is disapproved, the Contractor, upon Government request, shall repeat any or all first article tests. After each request for additional tests, the Contractor shall make any necessary changes, modifications, or repairs to the first article or select another first article for testing. All costs related to these tests are to be borne by the Contractor, including any and all costs for additional tests following a disapproval. The Contractor shall then conduct the tests and deliver another report to the Government under the terms and conditions and within the time specified by the Government. The Government shall take action on this report within the time specified in paragraph (b) of this subsection. The Government reserves the right to require an equitable adjustment of the contract price for any extension of the delivery schedule, or for any additional costs to the Government related to these tests.
(d) If the Contractor fails to deliver any first article report on time, or the Contracting Officer disapproves any first article, the Contractor shall be deemed to have failed to make delivery within the meaning of the Default clause of this contract.
(e) Unless otherwise provided in the contract, and if the approved first article is not consumed or destroyed in testing, the Contractor may deliver the approved first article as part of the contract quantity if it meets all contract requirements for acceptance.
(f) If the Government does not act within the time specified in paragraph (b) or (c) of this subsection, the Contracting Officer shall, upon timely written request from the Contractor, equitably adjust under the changes clause of this contract the delivery or performance dates and/or the contract price, and any other contractual term affected by the delay.
(g) Before first article approval, the acquisition of materials or components for, or the commencement of production of, the balance of the contract quantity is at the sole risk of the Contractor. Before first article approval, the costs thereof shall not be allocable to this contract for (1) progress payments, or (2) termination settlements if the contract is terminated for the convenience of the Government.
(h) The Government may waive the requirement for first article approval test where supplies identical or similar to those called for in the schedule have been previously furnished by the offeror/contractor and have been accepted by the Government. The offeror/contractor may request a waiver.
(End of clause)
Alternate I (Jan 1997). As prescribed in 9.308-1(a)(2) and (b)(2), add the following paragraph (i) to the basic clause:
(i) The Contractor shall produce both the first article and the production quantity at the same facility.
Alternate II (Sept1989). As prescribed in 9.308-1(a)(3) and (b)(3), substitute the following paragraph (g) for paragraph (g) of the basic clause:
(g) Before first article approval, the Contracting Officer may, by written authorization, authorize the Contractor to acquire specific materials or components or to commence production to the extent essential to meet the delivery schedules. Until first article approval is granted, only costs for the first article and costs incurred under this authorization are allocable to this contract for (1) progress payments, or (2) termination settlements if the contract is terminated for the convenience of the Government. If first article tests reveal deviations from contract requirements, the Contractor shall, at the location designated by the Government, make the required changes or replace all items produced under this contract at no change in the contract price.