As prescribed in 46.710-90 insert the following clause:
WARRANTY OF SUPPLIES (SEP 2008) - DLAD
(a) DEFINITIONS.
"Acceptance," as used in this clause, means the act of an authorized representative of the Government by which the Government assumes for itself, or as an agent of another, ownership of existing equipment or approves specific services as partial or complete performance of the contract.
"Correction," as used in this clause, means the elimination of a defect.
"Equipment," as used in this clause, means the end item furnished by the contractor. The word does not include "data" or "services".
"Services," as used in this clause, means performing installation services on the equipment so that it is fully operational and ready for immediate use.
"Training," as used in this clause, means performing operational and maintenance training relative to the equipment as required by the contract.
(b) CONTRACTOR'S OBLIGATIONS.
(1) Notwithstanding inspection and acceptance by the Government of equipment furnished under this contract, or any condition of this contract concerning the conclusiveness thereof, the contractor warrants that after receipt of equipment at destination and continuing for an additional time of one year after date of acceptance of installation services*:
(i) All equipment, services and training furnished under this contract will be free from defects in material or workmanship and will conform with all requirements of this contract; and
(ii) The preservation, packaging, packing and marking, and the preparation for, and method of, shipment of such equipment will conform with the requirements of this contract; and
(iii) All equipment, services and training will be of a quality to pass without objection in the trade and will be fit for the particular purpose under the contract description.
*NOTE: When installation services are not required in the contract, then warranty coverage shall begin with the receipt of equipment at destination instead of acceptance of installation services.
(2) When return of the equipment to the contractor and redelivery, if applicable, is required, transportation charges and responsibility for the equipment while in transit shall be borne by the contractor. However, the contractor's liability for such transportation charges shall not exceed an amount equal the cost of transportation by the usual commercial method of shipment between the designated point specified in this contract and the contractor's plant, and return. The contractor shall also be liable for:
(i) Handling costs and incidental charges incurred by the Government in the preparation of the above described equipment for return to the contractor and in return of said equipment to place of installation after redelivery by the contractor; and
(ii) Cost of government examination of the corrected or replaced equipment computed and charged at the flat rate of $49.28 per hour
(3) Any equipment or parts thereof, corrected or furnished in replacement and any service or training reperformed under this clause, shall also be subject to the terms of this clause to the same extent as equipment, services and training initially delivered. The warranty, with respect to immediately above described equipment, parts thereof, services and training, shall be equal in duration to that in paragraph (b)(1) of this clause and shall begin upon inspection and acceptance of the corrected or replaced equipment or parts, or the reperformed service or training.
(c) REMEDIES AVAILABLE TO THE GOVERNMENT.
(1) Notice Requirement: The contracting officer shall give written notice to the contractor of any breach of warranties in paragraph (b) of this clause starting from receipt of equipment at destination and continuing for an additional time of 13 months after date of acceptance of installation services.
(2) Conformance of equipment or parts thereof, services thereon or training subject to warranty action shall be determined in accordance with the inspection and acceptance procedures contained in the contract except as provided herein. If the contract provides for sampling, the contracting officer may group any equipment delivered under this contract. The size of the sample shall be that required by the sampling procedure specified in the contract for the quantity of equipment on which warranty action is proposed. Warranty sampling results may be projected over equipment in the same shipment or other equipment contained in other shipments even though all of such equipment are not present at the point of reinspection and regardless of whether such equipment has been issued or consumed, provided (1) the equipment from which the samples were drawn are reasonably representative of the quantity on which warranty action is proposed, and (2) the defects found in the sample size are sufficient to reject the quantity of equipment on which warranty action is proposed, even though the sample size may be less than that required for such quantity. The original inspection lots need not be reconstituted, nor shall the contracting officer be required to use the same lot size as on original inspection. Within a reasonable time after the notice, the contracting officer may exercise one or more of the following remedies and also, following the exercise of an option, may unilaterally change it to one or more of the other remedies set forth below:
(i) Require an equitable adjustment in the contract price for any equipment or group of equipment, for the installation thereof, for training or for any combination thereof;
(ii) Either before, during or after installation, screen the equipment at contractor's expense and return all nonconforming equipment to the contractor for correction or replacement and performance or reperformance of installation services and training upon return of the equipment or for any combination thereof;
(ii) Either before, during or after installation, require the contractor to screen the equipment and to correct/replace all nonconforming equipment or perform/reperform any installation services and training or for any combination thereof at destination. The contractor shall proceed in accordance with the "Service Requirements" clause incorporated elsewhere in the contract;
(iv) Either before, during or after installation, return any equipment or group of equipment under this clause to the contractor (irrespective of the f.o.b. point or the point of acceptance) for screening and correction or replacement, and performance or reperformance of installation services and training upon return of the equipment or for any combination thereof;
(v) Either before, during of after installation, return or hold for the contractor's account any equipment or group of equipment delivered hereunder, whereupon the contractor shall repay the contract price paid for the equipment, services, training or any combination thereof. In such event, the Government may reprocure similar equipment services and training as applicable, upon such terms and in such manner as the contracting officer may deem appropriate, and charge to the contractor the additional cost occasioned the Government thereby.
(3) When remedy(c) (2) (ii), (c) (2) (iii), or (c) (2) (iv) of this clause is exercised, the contractor may be required to submit in writing and within 30 days after receipt of notice of such invocation a schedule for either:
(i) Correction and/or replacement of all defective equipment and subsequent redelivery of the returned equipment; or,
(ii) Screening defective equipment at each destination involved and subsequent redelivery of all corrected and/or replaced equipment as well as performance or reperformance of installation services, training or any combination thereof upon return of the equipment. Such schedule will become a part of the contract delivery schedule upon agreement thereto by the Government. If the contractor fails to provide an agreeable schedule within the specified period or any extension agreed to by the Government, the Government may correct the items and charge the contractor's account or issue a contract for correction of the items and charge the contractor's account; or exercise one or more of the remedies specified in paragraph (4) below.
(4) If the contractor fails to accept return of the nonconforming equipment; or fails to make redelivery of the corrected or replaced equipment to the Government or to perform or reperform installation services, training, or any combination thereof within the time established; or fails to make progress after its return to correct or replace it so as to endanger performance within the time established for redelivery and does not cure such failure within a period of 10 days (or such longer period as the contracting officer may authorize in writing) after receipt of notice from the contracting officer specifying such failure, the contracting officer may exercise one or more of the following remedies:
(i) Retain or have the contractor return the nonconforming equipment and require an equitable adjustment in the contract price for the equipment, for the installation thereof, for training or for any combination thereof.
(ii) Return or hold the nonconforming equipment for the contractor's account, or require the return of the nonconforming equipment and then hold for the contractor's account, whereupon the contractor shall repay the contract price for the equipment, services, training or any combination thereof. In such event, the Government may reprocure similar equipment, services and training upon such terms and in such manner as the contracting officer may deem appropriate, and charge to the contractor the additional costs occasioned the Government thereby.
(iii) If the contractor fails to furnish timely disposition instructions, dispose of the nonconforming equipment for the contractor's account in a reasonable manner, in which case the Government is entitled to reimbursement from the contractor or from the proceeds for the reasonable expenses of the care and disposition of the nonconforming equipment, as well as for any other costs incurred or to be incurred.
(5) The rights and remedies of the Government provided in this clause are in addition to and do not limit any rights afforded to the Government by any other clause of this contract.
(d) Failure to agree upon any determination to be made under this clause shall be a dispute concerning a question of fact within the meaning of the "Disputes" clause of this contract.
(e) When the contract specifies ultimate delivery of equipment to a location outside the contiguous United States, such location shall be deemed the destination for purposes of this clause.
(End of Clause)
