A Warranty is an express or implied promise from the seller that certain facts about the items or services being sold are true. It provides a buyer with legal assurance that the seller is providing an item or service that will perform as represented before the purchase transaction was complete. The concept of “warranty” also refers to certain promises, made by the Government, of future events or conditions (such as availability of a construction work site) needed for the supplier to perform the contract. [1]

There are two (2) broad categories of warranties: [1]

  • Express: According to the Uniform Commercial Code (UCC), “Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.”
  • Implied: This type of warranty revolves around the concepts of fitness for use and merchantability. Implied warranties become part of commercial contracts even though they are not written, unless specifically excluded. Federal Acquisition Regulation (FAR) Part 12 (Acquisition of Commercial Items) has integrated implied warranties into contracts when the clause at FAR 52.212-4 is included. The Government’s post-award rights contained in 52.212-4 are the implied warranty of merchantability, the implied warranty of fitness for particular purpose and the remedies contained in the acceptance paragraph. Government contracting officers should consult with legal counsel prior to asserting any claim for a breach of an implied warranty.

The Federal Acquisition Streamlining Act of 1994 (FASA) requires contracting officers to take full advantage of commercial warranties. To the maximum extent practicable, solicitations for commercial items must require offeror’s to offer the Government at least the same warranty terms, including offers of extended warranties, offered to the general public in customary commercial practice. Solicitations may specify minimum warranty terms, e.g., minimum length of warranty coverage, appropriate for the Government’s intended use of the item(s). [2]

Typically, warranties are on system or component reliability. The procedures for processing warranties should minimize impact on the user, particularly at the organizational level. Warranty provisions should enable the user to make warranty claims without delaying essential maintenance needed to restore system availability. [1]

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