FAR 46.317—Reporting Nonconforming Items.
Plain-English Summary
FAR 46.317 tells contracting officers when they must include the clause at 52.246-26, Reporting Nonconforming Items, and when they must not. It covers three main acquisition situations where the clause is required: items subject to higher-level quality requirements under 52.246-11, critical items identified by the contracting officer in consultation with the requiring activity, and certain Department of Defense acquisitions of electronic parts or end items, components, parts, or materials containing electronic parts that exceed the simplified acquisition threshold. It also extends the clause to service contracts when the contractor will furnish covered items as part of the service. The section then identifies two major exclusions: commercial products and commercial services acquired under FAR part 12 procedures, and medical devices already subject to FDA reporting under 21 CFR 803. Finally, it allows a limited agency-policy-based modification to the clause so the agency, rather than the contractor, submits reports to GIDEP within the required 60 days. In practice, this section is about deciding whether the reporting clause belongs in the solicitation and contract, and about avoiding duplicate or inappropriate reporting regimes while ensuring nonconforming items are reported where the government needs visibility.
Key Rules
Insert clause for higher-level quality
The contracting officer must include 52.246-26 when acquiring items subject to higher-level quality standards under 52.246-11. This ensures nonconforming items are reported for supplies that require stricter quality control.
Insert clause for critical items
The clause must also be used for items the contracting officer, in consultation with the requiring activity, determines are critical. The decision is discretionary but must be made jointly and tied to the appropriateness of reporting.
DoD electronic parts coverage
For Department of Defense acquisitions exceeding the simplified acquisition threshold, the clause is required for electronic parts and for end items, components, parts, or materials containing electronic parts, even if they are not otherwise covered by the higher-level quality or critical-item rules.
Apply to service contracts with covered items
If a service contract includes furnishing items that meet the covered-item criteria, the clause must be inserted in the service solicitation and contract as well. The reporting obligation follows the items, not just the contract type.
Do not use for Part 12 buys
The contracting officer must not insert the clause when acquiring commercial products or commercial services using FAR part 12 procedures. Commercial acquisitions are excluded from this reporting requirement.
Do not use for FDA-regulated devices
The clause must not be used for medical devices already subject to FDA reporting under 21 CFR 803. This avoids duplicative reporting systems for the same nonconformance issues.
Limited agency-policy modification
If agency policy allows, paragraph (b)(4) of the clause may be modified only so the agency, rather than the contractor, submits reports to GIDEP within the mandatory 60 days. No other change to that reporting structure is authorized by this section.
Responsibilities
Contracting Officer
Determine whether the acquisition falls within the mandatory coverage categories and insert 52.246-26 when required. Exclude the clause when the acquisition is for commercial products or commercial services under Part 12 or for FDA-covered medical devices, and apply any authorized agency-policy modification only within the narrow limits allowed.
Requiring Activity
Work with the contracting officer to identify whether an item is a critical item and whether reporting nonconforming items is appropriate. Provide technical and mission-based input on the need for the clause.
Agency
Establish any policy permitting the limited modification of paragraph (b)(4) so the agency, rather than the contractor, submits reports to GIDEP. If that policy exists, ensure the agency can meet the 60-day reporting requirement.
Contractor
When the clause is included, report nonconforming items in accordance with 52.246-26 and any authorized clause modification. For covered DoD acquisitions, ensure reporting obligations are understood for electronic parts and related items.
GIDEP
Receive nonconforming-item reports when the clause requires reporting to the Government-Industry Data Exchange Program, either directly from the contractor or through the agency if the clause is modified under agency policy.
Practical Implications
This section is a clause-coverage decision point: if the contracting officer gets it wrong, the contract may either miss required reporting or impose an unnecessary reporting burden.
The biggest drafting pitfall is forgetting the DoD electronic-parts rule, which applies even when the item is not otherwise a higher-level quality or critical item.
Another common mistake is applying the clause to commercial items or commercial services under Part 12, which this section expressly prohibits.
For service contracts, the key question is whether the contractor will furnish covered items as part of the service; if yes, the reporting clause may still be required.
If agency policy shifts reporting to the agency, the agency must be prepared to submit to GIDEP within 60 days; otherwise the modification defeats the purpose of the rule.
Official Regulatory Text
(a) Except as provided in paragraph (b) of this section, the contracting officer shall insert the clause at 52.246-26 , Reporting Nonconforming Items, in solicitations and contracts - as follows: (1) For an acquisition by any agency, including the Department of Defense, of– (i) Any items that are subject to higher-level quality standards in accordance with the clause at 52.246-11 , Higher-Level Contract Quality Requirement; (ii) Any items that the contracting officer, in consultation with the requiring activity determines to be critical items for which use of the clause is appropriate; (2) In addition (as required by paragraph (c)(4) of section 818 of the National Defense Authorization Act for Fiscal Year 2012 (Pub. L. 112-81)), for an acquisition that exceeds the simplified acquisition threshold and is by, or for, the Department of Defense of electronic parts or end items, components, parts, or materials containing electronic parts, whether or not covered in paragraph (a)(1) of this section; or (3) For the acquisition of services, if the contractor will furnish, as part of the service, any items that meet the criteria specified in paragraphs (a)(1) through (a)(2) of this section. (b) The contracting officer shall not insert the clause at 52.246-26 , Reporting Nonconforming Items, in solicitations and contracts when acquiring— (1) Commercial products and commercial services using part 12 procedures; or (2) Medical devices that are subject to the Food and Drug Administration reporting requirements at 21 CFR 803 . (c) If required by agency policy, the contracting officer may modify paragraph (b)(4) of the clause at 52.246-26 , but only to change the responsibility for the contractor to submit reports to the agency rather than to Government-Industry Data Exchange Program (GIDEP), so that the agency instead of the contractor submits reports to GIDEP within the mandatory 60 days.