complied with Government policies, such as the small business program, labor surplus area program, competition in subcontracting, "make-orbuy" program, and nondiscrimination; (xii) full information as to any terminations for default or tor the convenience of the Government, to include the status of appeals or claims, if any, and the extent to which payments were made during the period ccncerned; (xiii) status of price revision actions and the basis for any revision completed in the period concerned; (xiv) such pertinent subcontracts, as is available; information cn (xv) appraisal of contractor's contribution to the aerospace effort, with particular emphasis on work done by him in development of new material, invention of new devices, management ot large systems contracts as prime ΟΙ associate contractor; dS to (xvi) a current appraisal of contractor's performance and recommendation reasonableness of ccntractor's profits and fees for the pericd under consideration under the listed contracts; and (xvii) such other inf crmation as may be particularly requested by the Renegotiation Board. 1.319-4 Procedures for Handling Requests for Performance Reports. (a) The Renegotiation Board has been requested to submit its requests for performance reports to the Assistant Administrator for Procurement, NASA Leadquarters (Code HR). (b) Requests for performance reports received by the Assistant Administrator for Frocurement will be forwarded to the installation concerned. Installations will be instructed to submit their reports to the Assistant Administrator for Procurement (Code HR). The Assistant Administrator for Procurement (Code HR) will review such reports prior to forwarding them tc the Renegotiation Foard to ensure that the reports are consistent with each other or that discrepancies are appropriately explained. 1.320 Industry Security. Procedures required to safeguard classified defense intcrmation which U. S. contractors, subcontractors, vendors, or suppliers will possess or have access to, are set CFR TITLE 41 CHAPTER 18 GENERAL POLICIES forth in the Department 1.321 through 1.323 (Reserved) 1.324-1 General. A warranty clause gives the Government a contractual right to assert claims regarding the deficiency of supplies or services furnished, notwithstanding any other contractual provisions pertaining to acceptance by the Government. Such a clause allows the Government additional time atter acceptance in which to assert a right tc ccrrection cf the deficiencies or detects, re-performance, an equitable ad justment in the contract price, ΟΙ other remedies. This additional period of time may begin at the time ct delivery or at the occurence of a specified event, and may run for a given number of days or months or until occurrence of anct her specified event. The value of a warranty clause depends upon the circumstances, and its use, terms, and conditions are influenced by many factors (see 1.324-3 (b).) A warranty clause пау therefore be tailored to tit the individual procurement or class ct procurements. 1.324-2 Policy. (a) A warranty clause shall be used when it is found to be in the best interests ot the Government, after an analysis of the factors listed in 1.324-3(b). (b) A warranty clause shall not be included in cost-reimbursement type contracts, since the warranty aspects of the clause "Inspection of Supplies and Correction of Defects" in 7.203-5 and the "Inspection and Correction of Defects" in 7.402-5 are sufficient to protect the Interests of the Government. (c) Any warranty clause included in a contract shall not limit any rights attorded to the Government by the provisions ct the Inspection NASA PROCUREMENT REGULATION GENERAL FROVISIONS clause relating gross mistakes that amount to fraud. Care should clause used te taken to insure that the warranty and any Next page is 1-3:277 CFR TITLF 41 CHAPTER 18 GENERAL POLICIES other warranty provisions in the contract (e.g., in the specifications) are consistent, especially where performance specifications are used. 1.324-3 Use of a Warranty. (a) Except for the commercial warranty clauses covered in 1.324-4 and warranties contained in federal, military, or construction specifications, the decision to use a warranty clause, or to include a warranty provision in a specification other than a federal, military, or construction specification shall made only upon the written authorization of the Procurement Officer or his designee. This decision may be made either for individual procurements or for classes of procurements. (b) In deciding whether to use a warranty clause, at least the following factors shall be considered: (i) nature of the item and its end use; (ii) cost of the warranty and degree of price competition as it may affect this cost; (iii) criticalness of achieving specified performance capabilities and design specifications; (iv) cost of correction or replacement, either by the contractor or another source, in the absence of a warranty; (v) administrative cost and difficulty of enforcing the warranty; (vi) ability to take advantage of the warranty, as conditioned by storage time, distance of the using agency from the source, or other factors; (vii) operation of the warranty as a deterrent against furnishing of defective or nonconforming supplies; (viii) the extent to which Government acceptance is to be based upon contractor inspection or quality control; (ix) whether because of the nature of the items the Government inspection system would not be likely to provide adequate protection without a warranty; (x) whether the contractor's present quality program is reliable enough to provide adequate protection without a warranty, or, if not, whether a warranty would cause the contractor to institute an effective and reliable quality program; (xi) reliance on "brand-name" integrity; (xii) whether a warranty is regularly given for a commercial component of a more complex end item; (xiii) criticalness of item for protection of personnel, e.g., for safety in flight; (xiv) the stage of development of the item and the state of the art; and (xv) customary trade practices. (c)(1) When a decision has been made to use a warranty clause in a supply contract, consideration shall be given to a contractual requirement that the warranted items be marked as such or that notice of the warranty be otherwise furnished with the items, in order to inform those who store, stock, and use the items that they are warranted and to encourage them to advise the contracting officer of any defects. The marking or notice to be required need not state the complete warranty; a short statement that a warranty exists, its duration, and whom to notify if an item is found to be defective will normally be sufficient. (2) In deciding whether to impose such a requirement, the contracting officer shall take into account: NASA PROCUREMENT REGULATION 1.324-3 GENERAL PROVISIONS (i) the feasibility (for the contractor) of so marking the items or otherwise furnishing notice of the warranty with them; and (ii) the cost to the Government of such a requirement in relation to its probable benefit in the enforcement of the warranty. (3) When the contracting officer is notified of a defect in warranted items, he should ascertain whether the warranty is currently in effect and assure that proper and timely notice of the defect is given to the contractor. (d) Warranties required by applicable architect-engineer specifications shall be included in advertised or negotiated construction contracts. 1.324-4 Commercial Warranties. In either formally advertised or negotiated procurements involving a commercial supply or service or construction, the contracting officer may include in the solicitation a warran ty clause which is standard or customary in the trade, or one which is substantially similar to and not in excess of a standard or customary trade warranty-provided in either case the contracting officer, after reviewing the factors listed in 1.324-3(b), decides that inclusion of such a clause is in the best interests of the Government. 1.324-5 Scope of Warranty Clause (Other Than Commercial Warranty Clause). (a) The terms and conditions of a warranty clause vary with the circumstances of the procurement. The clause must state the duration of the warranty. The clause may either provide that the contractor will be liable for defects or nonconformance to contract requirements existing at the time of delivery, or provide that he will be liable for such defects or nonconformance which develop prior to the expiration of a specified period of time or before the occurrence of a specified event. (b) A warranty clause shall also include a specified period during which notice must be given to the contractor of any defects or nonconformance to contract requirements. The interest of the Government normally will be protected if the notice period starts at the time of delivery, or where services are involved, upon acceptance thereof by the Government. In some cases, however, it may be necessary to start the notice period at a later time. For example, where conformance of supplies connot be determined satisfactorily until they are used, the period should begin when the items are put to use, or where supplies are procured in lots under sampling procedures and delivered in increments for storage, the period may begin when the supplies are put to use or at the time of the last delivery. (c) Where the Government specifies the design of the item and its precise measurements, tolerances, materials, tests, or inspection requirements, the contractor's liability for defects or nonconformance should usually be limited to those in existence at the time of delivery. (d) Where a contract contains performance specifications and design is of minor importance, the contractor's liability may extend to defects or nonconformance to specifications which may arise after delivery of the supplies or acceptance of the services. Where appropriate, however, the warranty should be limited to defects or nonconformance existing at the time of delivery of the supplies or acceptance of the services. (e) Ordinarily, the remedy provided under a warranty clause to return nonconforming supplies to the contractor for correction or replacement should satisfy the Government's needs. However, where tupplies are of such nature that correction or replacement does not afford adequate 1.324-4 CFR TITLE 41 CHAPTER 18 |