52.209-4 First Article Approval-Government Testing
Source: FAR 52.209-4 on acquisition.gov
FAR 52.209-4 requires contractors to submit a first article for government testing and approval before full production, with strict timelines, cost responsibilities, and risk management obligations.
Overview
FAR 52.209-4, First Article Approval-Government Testing, establishes the requirements and procedures for government testing and approval of a "first article" (prototype or initial production unit) before full-scale production or delivery under a contract. This clause is used when the government needs to verify that the contractor's product meets contract specifications before authorizing further production. The clause details the process for submission, testing, approval/disapproval, and the consequences of failure to deliver or obtain approval. It also addresses cost allocation, risk, and the possibility of waiving the first article requirement if the contractor has previously supplied similar, accepted items.
Key Rules
- Submission of First Article
- Contractor must deliver specified units to a designated government facility within a set timeframe for testing, with proper documentation.
- Government Notification
- The government must notify the contractor in writing of approval, conditional approval, or disapproval within a specified period after receipt.
- Disapproval and Retesting
- If disapproved, the contractor must submit a new or modified first article at their own expense, and the government may adjust the contract for delays or additional costs.
- Default and Delivery
- Failure to deliver or obtain approval is treated as a delivery failure under the Default clause.
- Disposition of First Article
- Approved first articles may be included in the contract quantity if not destroyed; unapproved articles must be removed at the contractor's expense.
- Contractor Risk and Cost Allocation
- Costs for production beyond the first article are at the contractor's risk until approval, and not allocable for progress payments or termination settlements unless otherwise authorized.
- Waiver and Alternates
- The government may waive the requirement if similar items were previously accepted; alternates address production location and limited pre-approval production authorization.
Responsibilities
- Contracting Officers: Specify first article requirements, testing facility, timelines, and communicate approval/disapproval; may authorize limited pre-approval production or waive requirements.
- Contractors: Deliver first article on time, bear costs for retesting, provide documentation, support testing, and manage risk for pre-approval production.
- Agencies: Oversee testing, ensure timely notification, and manage contract adjustments as needed.
Practical Implications
- Ensures product quality and compliance before full production, reducing risk of defective deliveries.
- Contractors must carefully manage timelines, costs, and risk, especially regarding pre-approval production.
- Delays or failures in first article approval can lead to default, additional costs, or contract adjustments.
As prescribed in 9.308-2 (a) and (b), insert the following clause:
First Article Approval-Government Testing (Sep 1989)
[Contracting Officer shall insert details]
(a) The Contractor shall deliver ___ unit(s) of Lot/Item ___ within ____ calendar days from the date of this contract to the Government at ______ [insert name and address of the testing facility] for first article tests. The shipping documentation shall contain this contract number and the Lot/Item identification. The characteristics that the first article must meet and the testing requirements are specified elsewhere in this contract.
(b) Within _____ calendar days after the Government receives the first article, 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 submit an additional first article for testing. After each request, 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 furnish any additional first article to the Government under the terms and conditions and within the time specified by the Government. The Government shall act on this first article within the time limit specified in paragraph (b) of this clause. 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 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, the Contractor-
(1) May deliver the approved first article as a part of the contract quantity, provided it meets all contract requirements for acceptance and was not consumed or destroyed in testing; and
(2) Shall remove and dispose of any first article from the Government test facility at the Contractor’s expense.
(f) If the Government does not act within the time specified in paragraph (b) or (c) of this clause, 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) The Contractor is responsible for providing operating and maintenance instructions, spare parts support, and repair of the first article during any first article test.
(h) 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.
(i) 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 9.308-2 (a)(2) and (b)(2), add the following paragraph (j) to the basic clause:
(j) The Contractor shall produce both the first article and the production quantity at the same facility.
Alternate II (Sept 1989). As prescribed in 9.308-2 (a)(3) and (b)(3), substitute the following paragraph (h) for paragraph (h) of the basic clause:
(h) 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.