Warranties

Construction Program Guide

Warranties have been successfully used, in other countries and by some States on non-Federal projects, to protect investments from early failure. Prior to 1991, the FHWA had a longstanding policy that restricts the use of warranties on Federal-aid projects to electrical and mechanical equipment. The rationale for the restriction was that such contract requirements may indirectly result in Federal-aid funds participating in maintenance costs, and the use of Federal-aid funds for routine maintenance is prohibited by law. However, the Agency utilized the public notice / public comment process to develop and implement a rule making for warranties in 1995.

The regulation applies to projects on the National Highway System. Contracting agencies may use their own warranty procedures on non-National Highway System projects.

Authority/Legal Basis

Laws

23 U.S.C. 116 Maintenance indicates that that it is the State DOT's responsibility to provide for maintenance of a project built with Federal-aid funds.
On this basis, FHWA's policy does not allow Federal-aid participation in routine maintenance (operations such as: snow removal, graffiti removal, grass cutting, etc.); however, paragraph (d) of Section 116 provides the authority for Federal-aid participation in preventive maintenance costs. Thus by statute, preventive maintenance can be included in warranty provisions.

Regulations

23 CFR 635.413 Guaranty and warranty clauses (04/01/2013)
23 CFR 635 General Material Requirements; Warranty Clauses Final Rule (04/19/1996)
23 CFR 635 General Material Requirements; Warranty Clauses Interim Final Rule (08/25/1995)

Policy

Section III.B.8.c.iv.b) 5) of the FHWA Contract Administration Core Curriculum Manual summarizes the FHWA's policies and provides general guidance on the use of warranties.

Guidance

General Information

Training

FHWA Contract Administration Core Curriculum (Course Description (.pdf))

Construction