The FAR does allow the Contracting Officer to tailor 52.212-4, IAW 12.302 Tailoring of provisions and clauses for the acquisition of commercial items. Is the Contracting Officer authorized to delete section (h) and (o) and include the terms and condition set forth by the contractor? The contractor is requesting we use the verbiage below .
(Seller) Limited Warranty: Seller warrants that the goods delivered under this agreement shall, as of the date delivery, comply with the specifications called out in our proposal and shall be free of defects in material and workmanship as of the time of delivery. At Seller's option, Seller shall repair or replace, st Seller's cost, any goods that do not conform to this warranty, provided that the customer promptly notifies Seller of the Nonconformance and returns the nonconforming unit at customer's expense to Seller for inspection and repair or replacement. Notification must be received by Seller in writing no later (10) business days after receipt of the nonconforming item by the customer. The forgoing shall be customer's sole ans exclusive remedy under this warranty and in no event will Seller be liable to customer for damages, including but not limited to indirect, special or consequential damages, whether claimed for breach of warranty, tort, or under any otje legal theory. Damage caused by accident, misuse, or abuse is not covered by this warranty. This warranty is limited to the original purchaser and is non-transferable. Shipping charges, taxes, or duties associated with the transportation of the nonconforming item and any replacement part must be prepaid by customer who shall assume the risk of loss during shipment. EXCEPT AS IS EXPRESSLY SET FORTH IN THIS WARRANTY PROVISION, SELLER MAKES NO OTHER WARRANTIES OR GUARANTEES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE.
The Contracting Officer must consult an attorney if they want to make these kinds of changes to the contract.
An attorney can advise the Contracting Officer on the consequences and the added risk to the government in their exact situation.1
(h) Patent indemnity
A patent/trademark/copyright holder who believes their Intellectual Property (IP) rights have been violated can sue any party they think infringed. The purpose of indemnity is that IF the government issued by the IP holder and loses, the contractor has to indemnify government-- pay us back whatever we pay the IP holder. Removing that indemnity means if the government is sued we cannot go back after the contractor for the cost, even if it was contractor’s action that caused the infringement.
The issue with the warranty is that the warranties for commercial items have a very deep very long history in the commercial world with well understood consequences. To tweak the language into something other than the standard language could end up causing completely unintended consequences.
Per FAR 12.302
a) General. “…contracting officers may, within the limitations of this subpart, and after conducting appropriate market research, tailor the provision at 52.212-1, Instructions to Offerors-Commercial Items, and the clause at 52.212-4, Contract Terms and Conditions -- Commercial Items, to adapt to the market conditions for each acquisition…”
(c) Tailoring inconsistent with customary commercial practice. The contracting officer shall not tailor any clause or otherwise include any additional terms or conditions in a solicitation or contract for commercial items in a manner that is inconsistent with customary commercial practice for the item being acquired unless a waiver is approved in accordance with agency procedures…
1More information is needed.
a) What is the item being bought?
b) What did the market research reveal as customary practices for the industry?
c) Are the terms and conditions as outlined by the contractor inconsistent with customary commercial practice?
The Contracting Officer must consult your legal attorney
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