Warranty Requirements

The interpretation and enforcement of the Warranty of

Construction Clause (FAR 52.246-21), with respect to the

extension of the warranty period when repairs are performed

during the one year warranty period, revolve around the

interpretation of paragraph (d) of the clause which is reproduced

below.

"(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."

Interpretation of this clause by the Armed Services Board of

Contract Appeals (Humphrey Heating and Roofing. Inc., ASBCA No.

29730 (Nov. 8, 1984)) concluded that the one year extension

applies only to replacement or repairs to work of property

which was consequentially damaged in fulfilling the terms and

conditions of the clause and not to the warranted item itself.

In April of last year, my company completed construction of some security gates. All testing was successfully completed and the gates were accepted. The warranty runs through April of next year. Last month, the agency with responsibility for the gates requested that the users perform testing on the gates that was more rigorous than the specifications provided and that testing has resulted in the gates breaking twice; both times my company has responded to the warranty call. The Government intends to continue this testing methodology monthly, which could result in an on-going warranty issue (particuarly if the repairs are assumed to re-start the warranty). The standard construction warranty clause (FAR 52.246-21) was included in the contract.

Thinking of traditional contractual rules, I think this issue is a slam dunk--but haven't found anything related to it with respect to the FAR. In other words, the gates are being used in a manner that is outside of the specifications--hence, the warranty has been voided.

So the question is--is there case law or specific FAR interpretation relative to mis-using material provided under a construction warranty?

I greatly appreciate any assistance.

Sorry that I missed this post yesterday and further that I am not at my office where I have access to Nash and Cibinic's "Administration of Government Contracts". I remember some discussion of case law where government QA testing that exceeded the contract requirements was determined to be a change to the contract requirements. There may well be some discussion of voiding the warranty in that reference. I don't think that the FAR discusses this topic. However there must be plenty of case law covering "voiding of the warranty". I'm at a car dealer or I'd do a GOOGLE search under "case law" "void" "warranty" . But a lawyer ought to be able to easily help you.

Joel's right. You won't find anything about it in the FAR, but there's a lot of case law on the subject. Here's one example: United Technologies Corp. v. United States, 27 Fed. Cl. 393 (1992). The government tested a helicopter in a fashion more severe than what was set out in the contract and -- surprise, surprise -- components didn't satisfy the fatigue life specified in the contract. The court said:

It is well-established government contract law that the contract specifications are the standard for determining defects?.Therefore, the government cannot impose a more stringent testing procedure or standard for demonstrating compliance than is set forth in the contract?.

Fatigue lives are not independently fixed quantities, like length or mass, but vary depending on how the aircraft is used. Accordingly, the variables affecting fatigue life must be so fixed in the contract. In the instant case, the fatigue life was to be measured in accordance with a standardized methodology, which included development of a usage spectrum from a government flight profile, the use of standardized fatigue curve shapes, and numerous other factors. Once this was approved by the government, it became the standard under all subsequent contracts Id., at 397

There is a good discussion of these issues in Darst and Curtis, Government Construction Contracting (Federal Publications 2007), Ch. 5, Inspection, Acceptance & Warranties.

Thank you all very much for your assistance. I suspected that was the case but couldn't find any discussion directly tied to the FAR. I really appreciate this resource, your time, and your wisdom. Thanks.

The Warranty of Construction clause at 52.246-21 requires at (a) that the Contractor warrant "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."

It generally doesn't require that you warrant to a higher standard than the requirements of the contract.

Paragraph (i) deals with government furnished design or materials and doesn't appear to be applicable here. Of course, we don't know all the facts.

At any rate, there is extensive discussion of post acceptance rights under under Inspection, Acceptance, and Warranties in Nash and Cibinic's "Administration of Government Contracts". After acceptance, the burden of proof is upon the government in asserting that the contractor has breached a warranty. On page 874 of the 4th Edition, the authors point out that there are three elements that the government must prove: 1) timely notice of the defect, 2) "furnishing the defective material or workmanship was the responsibility of the contractor" and 3) that the government didn't contribute to or cause the failures or defects. See "Joseph Penner, GSBCA 4647, 80-2 BCA ? 14,604". There is about a 3 1/2 inch long paragraph citing case law where the government failed to fulfill its burden of proof. For instance, see as noted on page 875: "Julian A. McDermott Corp., ASBCA 23435, 80-1 BCA ? 14210 (government testing that did not comply with Warranty clause requirements failed to establish contractor responsibility for defects)"

Bottom line is that after acceptance, the government has the burden of proof to show that there was a defect of material or workmanship under the terms of the contract. The contractor doesn't have to warrant compliance with more stringent requirements than the contract agreement requires.