Federal Register / Vol. 78, No. 153 / Thursday, August 8, 2013 / Proposed Rules 48407 

estimated amount of additional funds that 

will be required for the timely performance 

of the item(s) funded pursuant to this clause, 

for a subsequent period as may be specified 

in the allotment schedule in paragraph (j) of 

this clause or otherwise agreed to by the 

parties. If after such notification additional 

funds are not allotted by the date identified 

in the Contractor’s notification, or by an 

agreed substitute date, the Contracting 

Officer will terminate any item(s) for which 

additional funds have not been allotted, 

pursuant to the clause of this contract 

entitled ‘‘Termination for Convenience of the 

Government.’’ 

(d) When additional funds are allotted for 

continued performance of the contract line 

item(s) identified in paragraph (a) of this 

clause, the parties will agree as to the period 

of contract performance which will be 

covered by the funds. The provisions of 

paragraphs (b) through (d) of this clause will 

apply in like manner to the additional 

allotted funds and agreed substitute date, and 

the contract will be modified accordingly. 

(e) If, solely by reason of failure of the 

Government to allot additional funds, by the 

dates indicated below, in amounts sufficient 

for timely performance of the contract line 

item(s) identified in paragraph (a) of this 

clause, the Contractor incurs additional costs 

or is delayed in the performance of the work 

under this contract and if additional funds 

are allotted, an equitable adjustment will be 

made in the price or prices (including 

appropriate target, billing, and ceiling prices 

where applicable) of the item(s), or in the 

time of delivery, or both. Failure to agree to 

any such equitable adjustment hereunder 

will be a dispute concerning a question of 

fact within the meaning of the clause entitled 

‘‘Disputes.’’ 

(f) The Government may at any time prior 

to termination allot additional funds for the 

performance of the contract line item(s) 

identified in paragraph (a) of this clause. 

(g) The termination provisions of this 

clause do not limit the rights of the 

Government under the clause entitled 

‘‘Default.’’ The provisions of this clause are 

limited to the work and allotment of funds 

for the contract line item(s) set forth in 

paragraph (a) of this clause. This clause no 

longer applies once the contract is fully 

funded except with regard to the rights or 

obligations of the parties concerning 

equitable adjustments negotiated under 

paragraphs (d) and (e) of this clause. 

(h) Nothing in this clause affects the right 

of the Government to terminate this contract 

pursuant to the clause of this contract 

entitled ‘‘Termination for Convenience of the 

Government.’’ 

(i) Nothing in this clause shall be 

construed as authorization of voluntary 

services whose acceptance is otherwise 

prohibited under 31 U.S.C. 1342. 

(j) The parties contemplate that the 

Government will allot funds to this contract 

in accordance with the following schedule: 

On execution of contract ........ $lllll 

(month) (day), (year) ............... $lllll 

(month) (day), (year) ............... $lllll 

(month) (day), (year) ............... $lllll 

(End of clause) 

* To be inserted after negotiation. 

[FR Doc. 2013–18976 Filed 8–7–13; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 246 and 252 

RIN 0750–AH95 

Defense Federal Acquisition 

Regulation Supplement: Clauses With 

Alternates—Quality Assurance 

(DFARS Case 2013–D004) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Proposed rule. 

SUMMARY: DoD is proposing to amend 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

create an overarching prescription for 

each set of quality assurance-related 

provisions/clauses with one or more 

alternates. In addition, the proposed 

rule would include the full text of each 

provision and/or clause alternate. 

DATES: Comments on the proposed rule 

should be submitted in writing to the 

address shown below on or before 

October 7, 2013, to be considered in the 

formation of a final rule. 

ADDRESSES: Submit comments 

identified by DFARS Case 2013–D004, 

using any of the following methods: 

Æ Regulations.gov: http:// 

www.regulations.gov. Submit comments 

via the Federal eRulemaking portal by 

entering ‘‘DFARS Case 2013–D004’’ 

under the heading ‘‘Enter keyword or 

ID’’ and selecting ‘‘Search.’’ Select the 

link ‘‘Submit a Comment’’ that 

corresponds with ‘‘DFARS Case 2013– 

D004.’’ Follow the instructions provided 

at the ‘‘Submit a Comment’’ screen. 

Please include your name, company 

name (if any), and ‘‘DFARS Case 2013– 

D004’’ on your attached document. 

Æ Email: dfars@osd.mil. Include 

DFARS Case 2013–D004 in the subject 

line of the message. 

Æ Fax: 571–372–6094. 

Æ Mail: Defense Acquisition 

Regulations System, Attn: Ms. Susan 

Williams, OUSD(AT&L)DPAP/DARS, 

Room 3B855, 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

Comments received generally will be 

posted without change to http:// 

www.regulations.gov, including any 

personal information provided. To 

confirm receipt of your comment(s), 

please check www.regulations.gov, 

approximately two to three days after 

submission to verify posting (except 

allow 30 days for posting of comments 

submitted by mail). 

FOR FURTHER INFORMATION CONTACT: Ms. 

Susan Williams, Defense Acquisition 

Regulations System, 

OUSD(AT&L)DPAP/DARS, Room 

3B855, 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

Telephone 571–372–6092; facsimile 

571–372–6101. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD is proposing to revise the DFARS 

to create an overarching prescription for 

the quality assurance clause with two 

alternates. The rule also proposes to add 

a separate prescription for the basic 

clause as well as each alternate. For 

clarity, the preface of each alternate will 

continue to explain what portions of 

that alternate are different from the 

basic clause. 

Separate prescriptions for the basic 

and alternates of DFARS clauses will 

facilitate the use of automated contract 

writing systems. The proposed rule will 

not revise the prescriptions in any 

substantive way or change the 

applicability of the clauses or their 

alternates. 

The inclusion of the full text of each 

clause alternate aims to make the terms 

of a clause alternate clearer to offerors 

and to DoD contracting officers. The 

current convention for alternates is to 

show only the changed paragraphs from 

the basic provision or clause. This 

proposed rule would include the full 

text of each clause and each alternate, 

which will assist in making solicitation 

and contract terms and conditions easier 

to read and understand. By placing 

alternates in full text, all paragraph 

substitutions from the basic clause will 

have already been made. Inapplicable 

paragraphs from the basic clause that 

are superseded by the alternate will not 

be included in the solicitation or 

contract in order to prevent confusion. 

Although this rule proposes to 

include each alternate in full, it retains 

the language that precedes the clause or 

alternate, which includes the location of 

the alternate’s prescription and a 

statement that identifies which 

paragraphs were changed from the basic 

clause. Further, alternates are proposed 

to have individual titles that tie them to 

the basic clause, e.g., ‘‘Warranty of 

Data—Alternate I’’ in lieu of ‘‘Alternate 

I.’’ 

II. Discussion 

This proposed rule addresses only the 

single DFARS part 246 clause that has 

alternates. The remaining prescriptions 

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48408 Federal Register / Vol. 78, No. 153 / Thursday, August 8, 2013 / Proposed Rules 

in part 246 are not proposed to be 

changed in any way by this rule. The 

affected clause is 252.246–7001, 

Warranty of Data, with two alternates. 

The naming convention results in 

proposed new clause titles, e.g., 

Warranty of Data—Basic and Warranty 

of Data—Alternate I. 

An umbrella prescription is proposed 

to be added for the elements common to 

the basic clause and both alternates. The 

specific prescription for the basic clause 

and each alternate would then address 

only the requirements for their use that 

enable the selection of the basic or one 

of the alternates. For example, the 

revised prescription for Warranty of 

Data—Alternate I would read as follows: 

‘‘Use the clause at 252.246–7001, 

Warranty of Data—Alternate I, in fixedprice incentive solicitations and 

contracts.’’ The planned changes will 

increase the clarity and ease of use, but 

will not revise the applicability in any 

way. The text of the current DFARS 

252.246–7001, Alternate I, would no 

longer consist solely of paragraph (d)(3), 

but would include the entire text of 

DFARS 252.246–7001 (basic clause) 

with the revised paragraph (d)(3) 

substituted for the corresponding 

paragraph of the basic clause. 

Inapplicable paragraphs from the basic 

version of the clause that are superseded 

by the alternate will not be included in 

the solicitation or contract in order to 

prevent confusion. 

Further, this proposed rule would 

also revise the applicable preface, i.e., 

the language in part 252 that precedes 

a provision, clause, or alternate. The 

proposed rule would replace the current 

preface language with a statement that 

identifies the specific changes from the 

basic version of the solicitations 

provision or clause. 

III. Executive Orders 12866 and 13563 

Executive Orders (E.O.s) 12866 and 

13563 direct agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This is not a significant 

regulatory action and, therefore, was not 

subject to review under section 6(b) of 

E.O. 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

rule is not a major rule under 5 U.S.C. 

804. 

IV. Regulatory Flexibility Act 

DoD does not expect this proposed 

rule to have a significant economic 

impact on a substantial number of small 

entities within the meaning of the 

Regulatory Flexibility Act, 5 U.S.C. 601, 

et seq., because it merely revises the 

prescriptions for solicitation provisions 

and clauses with alternates to be 

unique, as well as includes the full text 

of each provision or clause in each 

alternate. However, an initial regulatory 

flexibility analysis has been performed 

and is summarized as follows: 

The purpose of this proposed rule is 

to amend the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to create unique prescriptions 

for the basic version and each alternate 

of DFARS part 246 solicitations 

provisions and clauses, and to include 

the full text of each clause alternate. 

The use of automated contract writing 

systems will be facilitated by having 

unique prescriptions for the basic 

version and each alternate of DFARS 

solicitations provisions and clauses. The 

current convention requires the 

prescription for the basic provision or 

clause to address all the possibilities 

covered by the alternates, and then the 

prescription for each alternate addresses 

only what is different for the use of that 

particular alternate. This rule will revise 

the prescriptions, so that the basic 

solicitation provision or clause and each 

alternate is unique and stands on its 

own. The prescriptions will not be 

revised in any way to change when they 

are applicable to offerors, contractors, or 

subcontractors. 

Additionally, the inclusion of the full 

text of each provision or clause alternate 

aims to make the terms of a provision 

or clause alternate clearer to offerors, as 

well as to DoD contracting officers. 

Instead of the current convention for 

alternates to show only paragraphs 

changed from the basic version of the 

provision or clause, this rule proposes 

to include the full text of each version 

of the clause. This will assist in making 

the terms of the clause clearer, because 

all paragraph substitutions will have 

already been made. Inapplicable 

paragraphs from the basic version of the 

clause that are superseded by the 

alternate are not included in the 

solicitation or contract to prevent 

confusion. 

Potential offerors, including small 

businesses, may be affected by this rule 

by seeing an unfamiliar format for 

clause alternates in solicitations and 

contracts issued by DoD contracting 

activities. An average of 12,618,521 new 

contracts was awarded in Fiscal Years 

2011 and 2012, and an average of 

1,557,852 of these actions (12.35%) was 

awarded to small businesses. It is 

unknown how many of these contracts 

were awarded that included an alternate 

to a DFARS provision or clause. Nothing 

substantive will change in solicitations 

or contracts for potential offerors, and 

only the appearance of how clause 

alternates are presented in the 

solicitations and contracts will be 

changed. This rule may result in 

potential offerors, including small 

businesses, expending more time to 

become familiar with and to understand 

the new format of the clause alternates 

in full text contained in contracts issued 

by any DoD contracting activity. The 

rule also anticipates saving contractors 

time by making all paragraph 

substitutions from the basic version of 

the clause, and not requiring the 

contractors to read inapplicable 

paragraphs contained in the basic 

version of the clause where alternates 

are also included in the solicitations 

and contracts. The overall burden 

caused by this rule is expected to be 

negligible and will not be any greater on 

small businesses than it is on large 

businesses. 

This rule does not add any new 

information collection requirements. 

The rule does not duplicate, overlap, or 

conflict with any other Federal rules. No 

alternatives were identified that will 

accomplish the objectives of the rule. 

DoD invites comments from small 

business concerns and other interested 

parties on the expected impact of this 

rule on small entities. 

DoD will also consider comments 

from small entities concerning the 

existing regulations in subparts affected 

by this rule in accordance with 5 U.S.C. 

610. Interested parties must submit such 

comments separately and should cite 5 

U.S.C. 610 (DFARS Case 2013–D004), in 

correspondence. 

V. Paperwork Reduction Act 

The rule does not contain any 

information collection requirements that 

require the approval of the Office of 

Management and Budget under the 

Paperwork Reduction Act (44 U.S.C. 

chapter 35). 

List of Subjects in 48 CFR Parts 246 and 

252 

Government procurement. 

Manuel Quinones, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, 48 CFR parts 246 and 252 

are proposed to be amended as follows: 

■ 1. The authority citation for parts 246 

and 252 continue to read as follows: 

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Federal Register / Vol. 78, No. 153 / Thursday, August 8, 2013 / Proposed Rules 48409 

Authority: 41 U.S.C. 1303 and 48 CFR 

Chapter 1. 

PART 246—QUALITY ASSURANCE 

■ 2. Revise section 246.710 to read as 

follows: 

246.710 Contract clauses. 

(a) Use a clause substantially the same 

as the basic or one of the alternates of 

the clause at 252.246–7001, Warranty of 

Data, in solicitations and contracts that 

include the clause at 252.227–7013, 

Rights in Technical Data and Computer 

Software, when there is a need for 

greater protection or period of liability 

than provided by the inspection and 

warranty clauses prescribed in FAR part 

46. 

(1) Use the clause at 252.246–7001, 

Warranty of Data—Basic, in solicitations 

and contracts that are not firm-fixed 

price or fixed-price incentive. 

(2) Use the clause at 252.246–7001, 

Warranty of Data—Alternate I, in fixedprice-incentive solicitations and 

contracts. 

(3) Use the clause at 252.246–7001, 

Warranty of Data—Alternate II, in firmfixed-price solicitations and contracts. 

(b) Use the clause at 252.246–7002, 

Warranty of Construction (Germany), 

instead of the clause at FAR 52.246–21, 

Warranty of Construction, in 

solicitations and contracts for 

construction when a fixed-price contract 

will be awarded and contract 

performance will be in Germany. 

(c)(1) In addition to 252.211–7003, 

Item Identification and Valuation, 

which is prescribed in 211.274–6(a), use 

the following provision and clause in 

solicitations and contracts when it is 

anticipated that the resulting contract 

will include a warranty for serialized 

items: 

(i) 252.246–7005, Notice of Warranty 

Tracking of Serialized Items (include 

only if offerors will be required to enter 

data with the offer); and 

(ii) 252.246–7006, Warranty Tracking 

of Serialized Items. 

(2) If the Government specifies a 

warranty, include in the solicitation the 

appropriate warranty attachment from 

DFARS 246.710–70. The contracting 

officer shall request the requiring 

activity to provide information to ensure 

that Attachment ll, Warranty 

Tracking Information, is populated with 

data specifying the Government’s 

required warranty provision by contract 

line item number, subline item number, 

or exhibit line item number prior to 

solicitation. In such case do not include 

252.246–7005 in the solicitation. 

(3) If the Government does not specify 

a warranty, include 252.246–7005 in the 

solicitation, and the warranty 

attachment from DFARS 246.710–70. 

The contractor may offer a warranty and 

shall then populate Attachment ll, 

Warranty Tracking Information, as 

appropriate, as part of its offer as 

required by 252.246–7005. 

(4) All warranty tracking information 

that is indicated with a single asterisk 

(*) in Attachment ll, Warranty 

Tracking Information, shall be 

completed prior to award. Data 

indicated with two asterisks (**) may be 

completed at the time of award. Data 

indicated with three asterisks (***) may 

be completed at or after the time of 

award. 

(5) The contractor shall provide 

warranty repair source instructions (as 

prescribed in the attachment) no later 

than the time of delivery. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 3. Revise section 252.246–7001 to 

read as follows: 

252.246–7001 Warranty of Data. 

As prescribed in 246.710(1), use one 

of the following clauses: 

(a) Warranty of Data—Basic. For the 

specific prescription for use of the basic 

clause, see 246.710(1)(i). 

WARRANTY OF DATA—BASIC (DATE) 

(a) Definition. ‘‘Technical data’’ has the 

same meaning as given in the clause in this 

contract entitled, Rights in Technical Data 

and Computer Software. 

(b) Warranty. Notwithstanding inspection 

and acceptance by the Government of 

technical data furnished under this contract, 

and notwithstanding any provision of this 

contract concerning the conclusiveness of 

acceptance, the Contractor warrants that all 

technical data delivered under this contract 

will at the time of delivery conform with the 

specifications and all other requirements of 

this contract. The warranty period shall 

extend for three years after completion of the 

delivery of the line item of data (as identified 

in DD Form 1423, Contract Data 

Requirements List) of which the data forms 

a part; or any longer period specified in the 

contract. 

(c) Contractor Notification. The Contractor 

agrees to notify the Contracting Officer in 

writing immediately of any breach of the 

above warranty which the Contractor 

discovers within the warranty period. 

(d) Remedies. The following remedies shall 

apply to all breaches of the warranty, 

whether the Contractor notifies the 

Contracting Officer in accordance with 

paragraph (c) of this clause or if the 

Government notifies the Contractor of the 

breach in writing within the warranty period: 

(1) Within a reasonable time after such 

notification, the Contracting Officer may— 

(i) By written notice, direct the Contractor 

to correct or replace at the Contractor’s 

expense the nonconforming technical data 

promptly; or 

(ii) If the Contracting Officer determines 

that the Government no longer has a 

requirement for correction or replacement of 

the data, or that the data can be more 

reasonably corrected by the Government, 

inform the Contractor by written notice that 

the Government elects a price or fee 

adjustment instead of correction or 

replacement. 

(2) If the Contractor refuses or fails to 

comply with a direction under paragraph 

(d)(1)(i) of this clause, the Contracting Officer 

may, within a reasonable time of the refusal 

or failure— 

(i) By contract or otherwise, correct or 

replace the nonconforming technical data 

and charge the cost to the Contractor; or 

(ii) Elect a price or fee adjustment instead 

of correction or replacement. 

(3) The remedies in this clause represent 

the only way to enforce the Government’s 

rights under this clause. 

(e) The provisions of this clause apply 

anew to that portion of any corrected or 

replaced technical data furnished to the 

Government under paragraph (d)(1)(i) of this 

clause. 

(End of clause) 

(b) Warranty of Data—Alternate I. For 

the specific prescription for use of 

Alternate I, see 246.710(1)(ii). Alternate 

I uses a different paragraph (d)(3) than 

the basic clause. 

WARRANTY OF DATA—ALTERNATE I 

(DATE) 

(a) Definition. ‘‘Technical data’’ has the 

same meaning as given in the clause in this 

contract entitled, Rights in Technical Data 

and Computer Software. 

(b) Warranty. Notwithstanding inspection 

and acceptance by the Government of 

technical data furnished under this contract, 

and notwithstanding any provision of this 

contract concerning the conclusiveness of 

acceptance, the Contractor warrants that all 

technical data delivered under this contract 

will at the time of delivery conform with the 

specifications and all other requirements of 

this contract. The warranty period shall 

extend for three years after completion of the 

delivery of the line item of data (as identified 

in DD Form 1423, Contract Data 

Requirements List) of which the data forms 

a part; or any longer period specified in the 

contract. 

(c) Contractor Notification. The Contractor 

agrees to notify the Contracting Officer in 

writing immediately of any breach of the 

above warranty which the Contractor 

discovers within the warranty period. 

(d) Remedies. The following remedies shall 

apply to all breaches of the warranty, 

whether the Contractor notifies the 

Contracting Officer in accordance with 

paragraph (c) of this clause or if the 

Government notifies the Contractor of the 

breach in writing within the warranty period: 

(1) Within a reasonable time after such 

notification, the Contracting Officer may— 

(i) By written notice, direct the Contractor 

to correct or replace at the Contractor’s 

expense the nonconforming technical data 

promptly; or 

(ii) If the Contracting Officer determines 

that the Government no longer has a 

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48410 Federal Register / Vol. 78, No. 153 / Thursday, August 8, 2013 / Proposed Rules 

requirement for correction or replacement of 

the data, or that the data can be more 

reasonably corrected by the Government, 

inform the Contractor by written notice that 

the Government elects a price or fee 

adjustment instead of correction or 

replacement. 

(2) If the Contractor refuses or fails to 

comply with a direction under paragraph 

(d)(1)(i) of this clause, the Contracting Officer 

may, within a reasonable time of the refusal 

or failure— 

(i) By contract or otherwise, correct or 

replace the nonconforming technical data 

and charge the cost to the Contractor; or 

(ii) Elect a price or fee adjustment instead 

of correction or replacement. 

(3) In addition to the remedies under 

paragraphs (d)(1) and (2) of this clause, the 

Contractor shall be liable to the Government 

for all damages to the Government as a result 

of the breach of warranty. 

(i) The additional liability under paragraph 

(d)(3) of this clause shall not exceed 75 

percent of the target profit. 

(ii) if the breach of the warranty is with 

respect to the data supplied by an equipment 

subcontractor, the limit of the Contractor’s 

liability shall be— 

(A) Ten percent of the total subcontract 

price in a firm fixed price subcontract; 

(B) Seventy-five percent of the total 

subcontract fee in a cost-plus-fixed-fee or 

cost-plus-award-fee subcontract; or 

(C) Seventy-five percent of the total 

subcontract target profit or fee in a fixedprice or cost-plus-incentive-type contract. 

(iii) Damages due the Government under 

the provisions of this warranty are not an 

allowable cost. 

(iv) The additional liability in paragraph 

(d)(3) of this clause shall not apply— 

(A) With respect to the requirements for 

product drawings and associated lists, 

special inspection equipment (SIE) drawings 

and associated lists, special tooling drawings 

and associated lists, SIE operating 

instructions, SIE descriptive documentation, 

and SIE calibration procedures under MIL– 

T–31000, General Specification for Technical 

Data Packages, Amendment 1, or MIL–T– 

47500, General Specification for Technical 

Data Packages, Supp 1, or drawings and 

associated lists under level 2 or level 3 of 

MIL–D–1000A, Engineering and Associated 

Data Drawings, or DoD–D–1000B, 

Engineering and Associated Lists Drawings 

(Inactive for New Design) Amendment 4, 

Notice 1; or drawings and associated lists 

under category E or I of MIL–D–1000, 

Engineering and Associated Lists Drawings, 

provided that the data furnished by the 

Contractor was current, accurate at time of 

submission, and did not involve a significant 

omission of data necessary to comply with 

the requirements; or 

(B) To defects the Contractor discovers and 

gives written notice to the Government before 

the Government discovers the error. 

(4) The provisions of this clause apply 

anew to that portion of any corrected or 

replaced technical data furnished to the 

Government under paragraph (d)(1)(i) of this 

clause. 

(End of clause) 

(c) Warranty of Data—Alternate II. 

For the specific prescription for use of 

Alternate II, see 246.710(1)(iii). 

Alternate II uses a different paragraph 

(d)(3) than the basic clause. 

WARRANTY OF DATA—ALTERNATE II 

(DATE) 

(a) Definition. ‘‘Technical data’’ has the 

same meaning as given in the clause in this 

contract entitled, Rights in Technical Data 

and Computer Software. 

(b) Warranty. Notwithstanding inspection 

and acceptance by the Government of 

technical data furnished under this contract, 

and notwithstanding any provision of this 

contract concerning the conclusiveness of 

acceptance, the Contractor warrants that all 

technical data delivered under this contract 

will at the time of delivery conform with the 

specifications and all other requirements of 

this contract. The warranty period shall 

extend for three years after completion of the 

delivery of the line item of data (as identified 

in DD Form 1423, Contract Data 

Requirements List) of which the data forms 

a part; or any longer period specified in the 

contract. 

(c) Contractor Notification. The Contractor 

agrees to notify the Contracting Officer in 

writing immediately of any breach of the 

above warranty which the Contractor 

discovers within the warranty period. 

(d) Remedies. The following remedies shall 

apply to all breaches of the warranty, 

whether the Contractor notifies the 

Contracting Officer in accordance with 

paragraph (c) of this clause or if the 

Government notifies the Contractor of the 

breach in writing within the warranty period: 

(1) Within a reasonable time after such 

notification, the Contracting Officer may— 

(i) By written notice, direct the Contractor 

to correct or replace at the Contractor’s 

expense the nonconforming technical data 

promptly; or 

(ii) If the Contracting Officer determines 

that the Government no longer has a 

requirement for correction or replacement of 

the data, or that the data can be more 

reasonably corrected by the Government, 

inform the Contractor by written notice that 

the Government elects a price or fee 

adjustment instead of correction or 

replacement. 

(2) If the Contractor refuses or fails to 

comply with a direction under paragraph 

(d)(1)(i) of this clause, the Contracting Officer 

may, within a reasonable time of the refusal 

or failure— 

(i) By contract or otherwise, correct or 

replace the nonconforming technical data 

and charge the cost to the Contractor; or 

(ii) Elect a price or fee adjustment instead 

of correction or replacement. 

(3) In addition to the remedies under 

paragraphs (d)(1) and (2) of this clause, the 

Contractor shall be liable to the Government 

for all damages to the Government as a result 

of the breach of the warranty. 

(i) The additional liability under paragraph 

(d)(3) of this clause shall not exceed ten 

percent of the total contract price. 

(ii) If the breach of the warranty is with 

respect to the data supplied by an equipment 

subcontractor, the limit of the Contractor’s 

liability shall be— 

(A) Ten percent of the total subcontract 

price in a firm fixed-price subcontract; 

(B) Seventy-five percent of the total 

subcontract fee in a cost-plus-fixed-fee or 

cost-plus-award-fee subcontract; or 

(C) Seventy-five percent of the total 

subcontract target profit or fee in a fixedprice or cost-plus-incentive-type contract. 

(iii) The additional liability specified in 

paragraph (d)(3) of this clause shall not 

apply— 

(A) With respect to the requirements for 

product drawings and associated lists, 

special inspection equipment (SIE) drawings 

and associated lists, special tooling drawings 

and associated lists, SIE operating 

instructions, SIE descriptive documentation, 

and SIE calibration procedures under MIL– 

T–31000, General Specification for Technical 

Data Packages, Amendment 1, or MIL–T– 

47500, General Specification for Technical 

Data Packages, Supp 1, or drawings and 

associated lists under level 2 or level 3 of 

MIL–D–1000A, Engineering and Associated 

Data Drawings, or DoD–D–1000B, 

Engineering and Associated Lists Drawings 

(Inactive for New Design) Amendment 4, 

Notice 1; or drawings and associated lists 

under category E or I of MIL–D–1000, 

Engineering and Associated Lists Drawings, 

provided that the data furnished by the 

Contractor was current, accurate at time of 

submission, and did not involve a significant 

omission of data necessary to comply with 

the requirements; or 

(B) To defects the Contractor discovers and 

gives written notice to the Government before 

the Government discovers the error. 

(4) The provisions of this clause apply 

anew to that portion of any corrected or 

replaced technical data furnished to the 

Government under paragraph (d)(1)(i) of this 

clause. 

(End of clause) 

252.246–7002 [Amended] 

■ 4. Amend introductory text of section 

252.246–7002 by removing ‘‘As 

prescribed in 246.710(4)’’ and adding 

‘‘As prescribed in 246.710(2)’’ in its 

place. 

252.246–7005 [Amended] 

■ 5. Amend introductory text of section 

252.246–7005 by removing ‘‘As 

prescribed in 246.710(5)(i)(A)’’ and 

adding ‘‘As prescribed in 

246.710(3)(i)(A)’’ in its place. 

252.246–7006 [Amended] 

■ 6. Amend introductory text of section 

252.246–7006 by removing ‘‘As 

prescribed in 246.710(5)(i)(B)’’ and 

adding ‘‘As prescribed in 

246.710(3)(i)(B)’’ in its place. 

[FR Doc. 2013–19021 Filed 8–7–13; 8:45 am] 

BILLING CODE 5001–06–P 

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