FAR 52.246-21—Warranty of Construction.
Plain-English Summary
FAR 52.246-21, Warranty of Construction, sets out the Government’s standard warranty for fixed-price construction contracts when an agency has approved use of a warranty clause. It covers the contractor’s promise that the work will conform to contract requirements and be free from defects in equipment, material, design, and workmanship; the warranty period and when it starts; the contractor’s duty to correct defects and related damage; the Government’s notice and self-help rights if the contractor does not act; the contractor’s obligations to obtain, execute, and enforce subcontractor, manufacturer, and supplier warranties; the Government’s right to sue on those warranties after the contractor’s warranty expires; the limitation for Government-furnished material or design; the preservation of the Government’s rights for latent defects, gross mistakes, or fraud; and the special Alternate I rule for brand-name-and-model equipment specified by the Government. In practice, this clause allocates post-acceptance risk on construction work, gives the Government a clear remedy for defective performance, and requires contractors to manage warranty flowdown and enforcement through their supply chain. It is especially important because it operates after acceptance, when ordinary inspection rights may be limited, and because it can shift significant repair and replacement costs back to the contractor if defects appear within the warranty period.
Key Rules
Warranty of conforming work
The contractor warrants that the work will conform to contract requirements and be free of defects in equipment, material, design, and workmanship furnished or performed by the contractor or any subcontractor or supplier at any tier. This is in addition to any other warranties in the contract.
One-year warranty period
The warranty lasts for one year from final acceptance of the work, or from Government possession of any part of the work if the Government takes possession before final acceptance. Repaired or replaced work gets its own one-year warranty period starting on the date of repair or replacement.
Contractor must correct defects
The contractor must, at its own expense, remedy any failure to conform, any defect, and any resulting damage to Government-owned or controlled real or personal property caused by the contractor’s nonconforming work or defective furnished items.
Government notice and self-help
The contracting officer must notify the contractor in writing within a reasonable time after discovering a failure, defect, or damage. If the contractor does not correct the problem within a reasonable time after notice, the Government may repair, replace, or otherwise remedy the issue and charge the cost to the contractor.
Subcontractor and supplier warranties
The contractor must obtain all warranties normally provided in commercial practice, and must execute and enforce warranties in writing for the Government’s benefit if the contracting officer directs. This ensures the Government can reach down the supply chain for warranty remedies.
Government enforcement after expiration
If the contractor’s warranty has expired, the Government may sue at its own expense to enforce a subcontractor’s, manufacturer’s, or supplier’s warranty. This preserves a remedy even after the prime warranty period ends.
Government-furnished items exception
The contractor is not liable for repairing defects in Government-furnished material or design, or damage resulting from such defects, unless the defect was caused by the negligence of the contractor or a lower-tier subcontractor or supplier.
Inspection rights preserved
The warranty does not limit the Government’s rights under the Inspection and Acceptance clause for latent defects, gross mistakes, or fraud. Those rights remain available even after acceptance and regardless of the warranty period.
Brand-name-and-model alternate
When the Government specifies equipment by brand name and model, Alternate I may exclude defects in the Government-specified design or manufacture from the contractor’s warranty. In that case, the contractor must require lower-tier warranties to run directly to the Government.
Responsibilities
Contracting Officer
Determine whether use of the warranty clause is approved under agency procedures and include it only when appropriate for a fixed-price construction contract. Provide written notice to the contractor within a reasonable time after discovering a defect or failure, and direct the contractor to obtain, execute, or enforce lower-tier warranties when needed.
Contractor
Deliver work that conforms to the contract and is free of defects, correct nonconforming work and resulting damage at its own expense, restore work damaged while performing warranty corrections, and manage warranty flowdown from subcontractors, manufacturers, and suppliers. If directed, the contractor must obtain written warranties for the Government’s benefit and enforce them.
Subcontractors, Manufacturers, and Suppliers
Provide warranties for their work or materials as required by commercial practice or by contract flowdown, and execute warranties in writing to benefit the Government when directed. Their warranties may be enforced by the contractor or, after the prime warranty expires, by the Government at its own expense.
Government
Inspect, accept, and if necessary notify the contractor of defects; allow the contractor a reasonable opportunity to cure; and, if the contractor fails to act, repair or replace the defective work and charge the cost to the contractor. The Government may also enforce lower-tier warranties and preserve rights for latent defects, gross mistakes, or fraud.
Agency
Approve use of the warranty clause under agency procedures and ensure it is used only in the circumstances contemplated for fixed-price construction contracts.
Practical Implications
This clause makes post-acceptance defect correction a contractor cost risk, so contractors should price warranty exposure and manage quality control carefully during performance.
The written-notice requirement matters: contracting officers should document discovery, notice, and cure periods, and contractors should respond promptly to avoid Government self-help and cost recovery.
Contractors need strong subcontract flowdown language and warranty tracking, because the Government can require lower-tier warranties to be written for its benefit and may later sue on them.
Government-furnished design or materials are a key defense, but only if the defect truly stems from Government direction or furnished items and not from contractor negligence or poor execution.
The clause does not eliminate latent defect, gross mistake, or fraud remedies, so acceptance does not fully close the door on Government claims where serious hidden problems or misconduct are involved.
Official Regulatory Text
As prescribed in 46.710 (e)(1) , the contracting officer may insert a clause substantially as follows in solicitations and contracts when a fixed-price construction contract (see 46.705 (c)) is contemplated, and the use of a warranty clause has been approved under agency procedures: Warranty of Construction (Mar 1994) (a) In addition to any other warranties in this contract, the Contractor warrants, 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. (b) This warranty shall continue for a period of 1 year from the date of final acceptance of the work. If the Government takes possession of any part of the work before final acceptance, this warranty shall continue for a period of 1 year from the date the Government takes possession. (c) The Contractor shall remedy at the Contractor’s expense any failure to conform, or any defect. In addition, the Contractor shall remedy at the Contractor’s expense any damage to Government-owned or controlled real or personal property, when that damage is the result of- (1) The Contractor’s failure to conform to contract requirements; or (2) Any defect of equipment, material, workmanship, or design furnished. (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. (e) The Contracting Officer shall notify the Contractor, in writing, within a reasonable time after the discovery of any failure, defect, or damage. (f) If the Contractor fails to remedy any failure, defect, or damage within a reasonable time after receipt of notice, the Government shall have the right to replace, repair, or otherwise remedy the failure, defect, or damage at the Contractor’s expense. (g) With respect to all warranties, express or implied, from subcontractors, manufacturers, or suppliers for work performed and materials furnished under this contract, the Contractor shall- (1) Obtain all warranties that would be given in normal commercial practice; (2) Require all warranties to be executed, in writing, for the benefit of the Government, if directed by the Contracting Officer; and (3) Enforce all warranties for the benefit of the Government, if directed by the Contracting Officer. (h) In the event the Contractor’s warranty under paragraph (b) of this clause has expired, the Government may bring suit at its expense to enforce a subcontractor’s, manufacturer’s, or supplier’s warranty. (i) Unless a defect is caused by the negligence of the Contractor or subcontractor or supplier at any tier, the Contractor shall not be liable for the repair of any defects of material or design furnished by the Government nor for the repair of any damage that results from any defect in Government-furnished material or design. (j) This warranty shall not limit the Government’s rights under the Inspection and Acceptance clause of this contract with respect to latent defects, gross mistakes, or fraud. (End of clause) Alternate I (Apr 1984) . If the Government specifies in the contract the use of any equipment by "brand name and model," the contracting officer may add a paragraph substantially the same as the following paragraph (k) to the basic clause: (k) Defects in design or manufacture of equipment specified by the Government on a "brand name and model" basis, shall not be included in this warranty. In this event, the Contractor shall require any subcontractors, manufacturers, or suppliers thereof to execute their warranties, in writing, directly to the Government.