Section 22-B9811. QUALITY CONTROL

 

9811.1A contractor and/or subcontractor may be required to provide and maintain an inspection system or program for the control of quality that is acceptable to the Hospital.

 

9811.2The contractor shall be ultimately responsible for performing all inspections and tests required by the contract except those specifically reserved for performance by the Hospital.

 

9811.3The type and extent of contract quality requirements needed in each solicitation or contract shall depend on the particular procurement and may range from inspection at time of acceptance to a requirement for the contractor’s implementation of a comprehensive program for controlling quality.

 

9811.4The CO may authorize alternative quality control or inspection methods recommended by the contractor when in the best interest of the Hospital.

 

9811.5Acceptance shall constitute acknowledgment that the supplies, services, or construction conform to the applicable contract quality and quantity requirements.

 

9811.6Supplies, services, or construction shall not be accepted before completion of Hospital contract quality control actions.

 

9811.7Acceptance shall be evidenced by execution of an acceptance certificate on an inspection or receiving report form or on a commercial shipping document or packing list.

 

9811.8Acceptance of supplies, services, or construction shall be the responsibility of the CO. When the CO assigns the responsibility for acceptance to another Hospital employee, acceptance by that employee shall be binding on the Hospital.

 

9811.9Contracts that provide for Hospital contract quality control at the source shall provide for acceptance at the source. Contracts that provide for Hospital contract quality assurance at destination shall provide for acceptance at destination.

 

9811.10A certificate of conformance may be used instead of source inspection, whether the contract calls for acceptance at the source or at destination, at the discretion of the CO. Use of the certificate shall not prejudice the Hospital’s right to inspect supplies, services, and construction under the inspection provisions of the contract.

 

9811.11Title to supplies and construction shall pass to the Hospital upon formal acceptance.

 

9811.12Unless the contract specifically provides otherwise, risk of loss of or damage to supplies shall remain with the contractor until, and shall pass to the Hospital upon either of the following:

 

(a)Delivery of the supplies to a carrier if transportation is freight on board origin; or

 

(b)Acceptance by the Hospital or delivery of the supplies to the Hospital at the destination specified in the contract, whichever is later, if transportation is F.O.B. destination.

 

9811.13The risk of loss or damage to construction shall remain with the contractor until formal acceptance of the construction by the Hospital. If any of a construction project is excepted from normal acceptance by the Hospital due to defects or failure to conform to the requirements and specifications of the contract, or is subject to contingent acceptance pending cure of defects, the risk of loss or damage to the construction shall remain with the contractor until the defects are cured and the contingency is removed or the construction is formally accepted by the Hospital.

 

9811.14The CO shall ensure that each warranty in a Hospital contract clearly delineates the rights and obligations of the contractor and the Hospital for defective items and services and fosters quality performance.

 

9811.15A warranty shall provide the following:

 

(a)A contractual right for the correction of defects, notwithstanding any other requirement of the contract pertaining to acceptance of the supplies or service by the Hospital; and

 

(b)A stated period of time or use, or the occurrence of a specified event, after acceptance by the Hospital within which the Hospital may assert a contractual right for the correction of defects.

 

9811.16The CO shall ensure that the benefits to be derived from a warranty are commensurate with the cost of the warranty to the Hospital.

 

9811.17A warranty clause shall not limit the Hospital’s rights under an inspection clause in relation to latent defects, fraud, or gross mistakes that amount to fraud. A warranty clause shall provide that the warranty applies notwithstanding inspection and acceptance, or other clauses or terms of the contract.

 

9811.18When the CO determines that a warranty for the entire item is not in the best interests of the Hospital, the CO may require a warranty for a particular aspect of the item that may require special protection, such as installation, components, accessories, subassemblies, preservation, packaging, or packing.

 

9811.19A warranty shall provide, at a minimum, that the Hospital may obtain an equitable adjustment of the contract or direct the contractor to repair or replace the defective item at the contractor’s expense.

 

9811.20If it is not practical to require the contractor to make a repair or provide a replacement, or, because of the nature of the item, the repair or replacement does not afford an appropriate remedy to the Hospital, the warranty may provide an alternative such as allowing the Hospital to arrange for the repair or replacement of the defective item by the Hospital, or by another source, at the contractor’s expense.

 

9811.21The CO shall clearly specify the duration of the warranty.

 

9811.22The duration of the warranty shall not extend the contractor’s liability for patent defects beyond a reasonable time after acceptance by the Hospital.

 

9811.23If the Hospital specifies the design of the end item and its measurements, tolerances, materials, tests, or inspection requirements, the contractor’s obligations for correction of defects shall be limited to defects in material and workmanship or failure to conform to specifications. If the Hospital does not specify the design, the warranty shall extend to the usefulness of the design.

 

9811.24Each warranty shall specify a reasonable time for furnishing notice to the contractor regarding the discovery of defects.

 

9811.25The packaging and preservation requirements of a contract shall require the contractor to stamp or mark the supplies delivered or otherwise furnish notice with the supplies of the existence of the warranty.

 

9811.26The provisions of this section shall apply to contractor liability for loss of or damage to Hospital property that occurs after acceptance as a result of defects or deficiencies in the supplies delivered or services performed.

 

9811.27Except as provided in this subsection, the Hospital shall act as a self-insurer by relieving contractors, as specified in this section, of liability for loss of or damage to property of the Hospital that occurs after acceptance of supplies delivered or services performed under a contract as a result of defects or deficiencies in the supplies or services. However, the Hospital shall not relieve the contractor of liability for loss of or damage to the contract end item itself, except for high-value items.

 

9811.28Except as provided in this section, in contracts requiring delivery of high-value items, the Hospital shall relieve contractors of contractual liability for loss of or damage to those items. However, the relief shall not limit the Hospital’s rights arising under the contract to do the following:

 

(a)Have any defective item or its components corrected, repaired or replaced when the defect or deficiency is discovered before the loss of or damage to high-value items occurs; or

 

(b)Obtain equitable relief when the defect or deficiency is discovered after such loss or damage occurs.

 

9811.29The Hospital shall not provide the contractual relief specified in this section when contractor liability can be preserved without increasing the contract price.

 

9811.30Subject to the specific terms of the limitation of liability clause included in the contract, the relief provided under this section shall not apply, as follows:

 

(a)To the extent that contractor liability is expressly provided for under a contract clause;

 

(b)When a defect or deficiency in, or the Hospital’s acceptance of, the supplies, services, or construction results from willful misconduct or lack of good faith on the part of the contractor or its agent; or

 

(c)To the extent that any contractor insurance, or self-insurance reserve, covers liability for loss or damage suffered by the Hospital through purchase or use of the supplies delivered or services performed under the contract.

 

9811.31For items being priced at or based on catalog or market prices, the CO shall not provide relief to contractors unless they can obtain a reduction from the catalog or market price which reflects the reduced contractor liability. The CO shall include a clause, to inform bidders and offerors of the provisions of this section.

 

source

Final Rulemaking published at 41 DCR 4508, 4559 (July 8, 1994).