Read the following memo from Donald Leader to Norma Jackson and the information attached to it. Then answer the following questions to determine which of the following remedies could be applied. Here are the remedies you should consider: cure or show cause notice; rejection for nonconformance; implied warranty; re-performance; contract termination; and reduction in price.

Questions

1. Has acceptance of the flowers taken place? In determining an appropriate remedy, how is whether or not acceptance has occurred important?
2. What remedies are available? Which remedy, or combination of remedies, do you think is best? What procedures would you follow to implement your solution?

Memorandum

TO: Norma Jackson, Contract Specialist

FROM: Donald Leader, Contracting Officer

I know you are busy with all of the other work that Peter left unfinished, but it's important to deal with this problem promptly. I'm sure Peter did not intend to make things so hectic for the rest of us.

Yesterday, you told me that George Lincoln, the COR, called to complain that the geraniums planted by FONI at his building are pink and white rather than red and white as called for by the contract. I think you ought to look further into this problem to see whether any remedies are available to us. If there are, I think you ought to initiate the necessary action.

As I understand it, Mr. Lincoln briefly examined the plants before they were put in place and told Mr. Potts, the contractor, that they looked okay to him. At the time, however, the plants were not quite in bloom, so Mr. Lincoln simply assumed that the ones that appeared reddish in color would turn out red and not pink. Now that the plants are fully in bloom, he's quite unhappy. Since it's been only three weeks since the planting, perhaps there is something we can do.

I've attached copies of three FAR provisions that were included in the FONI contract on inspection/acceptance, termination for cause, and implied warranty. You also may want to refer back to the summary of the requirements document you received from Peter when I first assigned this contract to you.

Attachments: Relevant portions of FAR 52.212-4

52.212-4 Contract Terms and Conditions Commercial Items

(a) Inspection/Acceptance. The Contractor shall only tender for acceptance those items that conform to the requirements of this contract. The Government reserves the right to inspect or test any supplies or services that have been tendered for acceptance. The Government may require repair or replacement on nonconforming supplies or reperformance of nonconforming services at no increase in contract price. If repair/replacement or reperformance will not correct the defects or is not possible, the Government may seek an equitable price reduction or adequate consideration for acceptance of nonconforming supplies or services. The Government must exercise its post-acceptance rights

(1) Within a reasonable time after the defect was discovered or should have been discovered; and

(2) Before any substantial change occurs in the condition of the item, unless the change is due to the defect in the item.

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(m) Termination for cause. The Government may terminate this contract, or any part hereof, for cause in the event of any default by the Contractor, or if the Contractor fails to comply with any contract terms and conditions, or fails to provide the Government, upon request, with adequate assurances of future performance. In the event of termination for cause, the Government shall not be liable to the Contractor for any amount for supplies or services not accepted, and the Contractor shall be liable to the Government for any and all rights and remedies provided by law. If it is determined that the Government improperly terminated this contract for default, such termination shall be deemed a termination for convenience.

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(o) Warranty. The Contractor warrants and implies that the items delivered hereunder are merchantable and fit for use for the particular purpose described in the contract.