As prescribed in 46.710-93 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 supplies, or approves specific services as partial or complete performance of the contract.
"Correction," as used in this clause, means the elimination of a defect.
"Supplies," as used in this clause, means the end item furnished by the contractor and related services required under the contract. The word does not include "data".
(b) Contractor's Obligations.
(1) Notwithstanding inspection and acceptance by the Government of supplies furnished under this contract, or any condition of this contract concerning the conclusiveness thereof, the contractor warrants that for one year after receipt of supplies at destination or, in the case of supplies required to bear an expiration date, for the expiration dating period indicated in the labeling thereof:
(i) All supplies 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 supplies will conform with the requirements of this contract.
(2) When return of the supplies to the contractor and redelivery, if applicable, is required, transportation charges and responsibility for the supplies while in transit shall be borne by the contractor. The contractor shall also be liable for
(i) handling costs and incidental charges incurred by the Government in the preparation of the above described supplies for return to the contractor and in return of said supplies to storage, after redelivery by the contractor and
(ii) for cost of Government examination of the corrected or replaced supplies computed and charged at the flat rate of $49.28 per hour.
(3) Any supplies or parts thereof, corrected or furnished in replacement under this clause, shall also be subject to the terms of this clause to the same extent as supplies initially delivered. The warranty, with respect to supplies or parts thereof, shall be equal in duration to that in paragraph (b)(1) of this clause and shall run from the date of receipt at destination of the corrected or replaced supplies.
(4) All implied warranties of merchantability and "fitness for a particular purpose" are excluded from any obligation contained in this contract.
(c) Remedies Available to the Government.
(1) Notice Requirement: The contracting officer shall give notice to the contractor of any breach of warranties in paragraph (b)(1) of this clause within 13 months from receipt of supplies at destination or, in the case of supplies required to bear an expiration date, no later than one month following the expiration date indicated in the labeling thereof.
(2) 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 any remedy, may unilaterally change it to one or more other of the other remedies set forth below:
(i) Require, by written notice, the prompt correction or replacement of any supplies or parts thereof (including preservation, packaging, packing and marking) that do not conform with the requirements of this contract within the meaning of paragraph (b)(1) of this clause; or
(ii) Retain such supplies and reduce the contract price by an amount equitable under the circumstances, after which the contractor shall promptly make appropriate repayment; or
(iii) Return or hold for contractor's account any supplies or group of supplies delivered hereunder, whereupon the contractor shall repay the contract price paid therefore. In such event, the Government may reprocure similar supplies upon such terms and in such manner as the contracting officer may deem appropriate, and charge to the contractor the cost occasioned the Government thereby.
(3) When the remedy in paragraph (c)(2) of this clause is exercised, the contractor is required to submit in writing and within 30 days after receipt of notice of such invocation a schedule for correction and/or replacement of all nonconforming supplies and subsequent redelivery of the returned supplies. 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:
(i) correct the items and charge the contractor's account or
(ii) issue a contract for correction of the items and charge the contractor's account or
(iii) exercise one or more of the remedies specified in (4) below.
(4) If the contractor fails to accept return of the nonconforming supplies; or, fails to make redelivery of the corrected or replaced supplies to the Government within the time established; or, fails to make progress after their return to correct or replace them 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 supplies and require an equitable adjustment in the contract price.
(ii) Return or hold the nonconforming supplies for contractor's account, or require the return of the nonconforming supplies and then hold for contractor's account, whereupon the contractor shall repay the contract price therefore. In such event, the Government may reprocure similar supplies 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.
(iii) If the contractor fails to furnish timely disposition instructions, dispose of the nonconforming supplies 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 supplies, 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 supplies to a location outside the contiguous United States, such location shall be deemed the destination for purposes of this clause.
(End of Clause)
