52.246-21 Warranty of Construction
Source: FAR 52.246-21 on acquisition.gov
Contractors on fixed-price construction contracts must warrant their work for one year, remedy defects at their own expense, and secure enforceable warranties from subcontractors and suppliers for the Government’s benefit.
Overview
FAR 52.246-21, Warranty of Construction, establishes the contractor’s obligation to warrant that all work performed under a fixed-price construction contract conforms to contract requirements and is free from defects in equipment, material, design, or workmanship. The standard warranty period is one year from final acceptance (or from Government possession if earlier). Contractors must remedy, at their own expense, any nonconformance or defect and any resulting damage to Government property. The clause also requires contractors to obtain, execute, and enforce warranties from subcontractors and suppliers for the Government’s benefit, if directed. If the contractor fails to remedy defects in a reasonable time, the Government may do so at the contractor’s expense. The clause includes exceptions for defects caused by Government-furnished materials or designs and does not limit the Government’s rights regarding latent defects, gross mistakes, or fraud. Alternate I addresses equipment specified by brand name and model, shifting warranty responsibility to the manufacturer or supplier.
Key Rules
- Warranty Period and Scope
- Contractors must warrant work for one year after final acceptance or Government possession, covering defects in materials, equipment, design, or workmanship.
- Remedy and Restoration
- Contractors must fix defects and restore damaged work or property at their own expense, with a new one-year warranty on repairs.
- Subcontractor and Supplier Warranties
- Contractors must secure and, if directed, enforce warranties from subcontractors and suppliers for the Government’s benefit.
- Government Remedies
- If the contractor fails to act, the Government may remedy defects at the contractor’s expense.
- Exclusions and Limitations
- Contractors are not liable for defects in Government-furnished materials or design unless caused by their negligence; the clause does not limit rights regarding latent defects, gross mistakes, or fraud.
Responsibilities
- Contracting Officers: Insert the clause in applicable contracts, notify contractors of defects, and direct enforcement of warranties as needed.
- Contractors: Provide a one-year warranty, remedy defects and damages, obtain and enforce subcontractor/supplier warranties, and comply with notification and repair obligations.
- Agencies: Oversee compliance and ensure proper clause application and enforcement.
Practical Implications
- Ensures construction quality and protects the Government from defective work.
- Contractors must have robust quality control and warranty management processes.
- Failure to comply can result in significant financial liability and reputational harm.
As prescribed in 46.710(e)(1), the contracting officer may insert a clause substantially as follows 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:
Warranty of Construction (Mar 1994)
(a) In addition to any other warranties in this contract, the Contractor warrants, except as provided in paragraph (i) of this clause, that work performed under this contract conforms to the contract requirements and is free of any defect in equipment, material, or design furnished, or workmanship performed by the Contractor or any subcontractor or supplier at any tier.
(b) This warranty shall continue for a period of 1 year from the date of final acceptance of the work. If the Government takes possession of any part of the work before final acceptance, this warranty shall continue for a period of 1 year from the date the Government takes possession.
(c) The Contractor shall remedy at the Contractor’s expense any failure to conform, or any defect. In addition, the Contractor shall remedy at the Contractor’s expense any damage to Government-owned or controlled real or personal property, when that damage is the result of-
(1) The Contractor’s failure to conform to contract requirements; or
(2) Any defect of equipment, material, workmanship, or design furnished.
(d) The Contractor shall restore any work damaged in fulfilling the terms and conditions of this clause. The Contractor’s warranty with respect to work repaired or replaced will run for 1 year from the date of repair or replacement.
(e) The Contracting Officer shall notify the Contractor, in writing, within a reasonable time after the discovery of any failure, defect, or damage.
(f) If the Contractor fails to remedy any failure, defect, or damage within a reasonable time after receipt of notice, the Government shall have the right to replace, repair, or otherwise remedy the failure, defect, or damage at the Contractor’s expense.
(g) With respect to all warranties, express or implied, from subcontractors, manufacturers, or suppliers for work performed and materials furnished under this contract, the Contractor shall-
(1) Obtain all warranties that would be given in normal commercial practice;
(2) Require all warranties to be executed, in writing, for the benefit of the Government, if directed by the Contracting Officer; and
(3) Enforce all warranties for the benefit of the Government, if directed by the Contracting Officer.
(h) In the event the Contractor’s warranty under paragraph (b) of this clause has expired, the Government may bring suit at its expense to enforce a subcontractor’s, manufacturer’s, or supplier’s warranty.
(i) Unless a defect is caused by the negligence of the Contractor or subcontractor or supplier at any tier, the Contractor shall not be liable for the repair of any defects of material or design furnished by the Government nor for the repair of any damage that results from any defect in Government-furnished material or design.
(j) This warranty shall not limit the Government’s rights under the Inspection and Acceptance clause of this contract with respect to latent defects, gross mistakes, or fraud.
(End of clause)
Alternate I (Apr 1984). If the Government specifies in the contract the use of any equipment by "brand name and model," the contracting officer may add a paragraph substantially the same as the following paragraph (k) to the basic clause:
(k) Defects in design or manufacture of equipment specified by the Government on a "brand name and model" basis, shall not be included in this warranty. In this event, the Contractor shall require any subcontractors, manufacturers, or suppliers thereof to execute their warranties, in writing, directly to the Government.