alleged to be attributable to various actions and fault on the part of the Government; among them being the furnishing of de fective Government-owned special tooling.

Counsel for the Government touches the nub of the controversy in his Reply Brief when he states (pp. 9-10):

"16. To contend that the procuring agency
assumed that the special tooling offered to
prospective contractors would not be useful or
that the procuring activity did not offer the
tooling with the hope of obtaining a lower con-
tract price, would be to attribute to the procuring
agency the intention of performing a senseless act.
Clearly, this was not the intention of the procuring
activity. The intention of the then Contracting
Officer, Mr. Greg O'Neill (Tr. 4-122), as well as
the ASPR policy (as expressed in ASPR Sec. 13-304,
dated 1 January 1969) was to offer the special
tooling in the hope of obtaining a lower contract
price for the end items. How much of a price
reduction, especially in light of the relatively
low acquisition value of the special tooling
($46,000), would be, as expressed by Mr. O'Neill,
in the mind of how a person looks on the
value of this material.' (Tr. 4-122). To say
however, that the procuring agency did not do a
senseless act does not thereby me an either that
the procuring activity assumed that all the special
tooling would be useful, or that the procuring
agency indicated an intention that, or directed
the Appellant to, utilize the special tooling.

This argument, we think, misses the point. There can be no question but that the procuring activity fully intended to receive a lower contract price by offering the tooling. It is the manner in which the tooling was offered that created the controversy and underlies the basis for attaching liability to the Government. If, as asserted, the procuring agency did not assume that all of the special tooling would be useful it made no attempt to advise bidders of the assumption. In view of the difficulty inherent in inspecting the tooling bidders had no way of ascertaining this fact. Indeed, the one bidder who did inspect the tooling assumed that all of it would be useful. Neither has any adequate reason been given for the procuring activity's failure to advise bidders that 76 necessary tooling items were not available. Neither has it been explained why obsolete tools were included on Attachment B.

Paragraph (b) of ASPR 13-304, cited by counsel, states in part that "*** the contract under which special tooling is furnished shall contain a description thereof, and the terms and conditions applicable to its shipment to the plant of the contractor and to the cost of adapting and installing it." The nature and extent of the "description" required by this provision is not further defined in ASPR but, at the very least, we do not think that the provision countenances, as was done here, the omission of vitally important information in the possession of the procurement activity. A portion of appellant's claim is predicated upon the failure of the Government to furnish tooling drawings with the special tools. However, the Government did not possess such drawings and did not represent that they were available. The Government cannot be held responsible for appellant's erroneous assumption that tooling drawings would be furnished.

Counsel's assertion regarding the lack of intention or direction on the part of the procurement agency that appellant utilize the special tooling ignores certain provisions of MIL-B-52088C (MO). The riveting provisions of that specification (Paragraph 3.9.5, quoted supra) states that "Components shall be bolted in position before riveting" and that "Jigs or frames shall be used to maintain alinement and tolerance." Paragraph 3.9.7 of the specification is even more to the point:

"3.9.7 Jigs and fixtures. Shop-fabricated components (except minor parts) shall be assembled in steel jigs or frames and joined while held in position. Jigs or frames shall be designed to minimize distortion. Steel jigs or templates shall be used for drilling or boring all field-connected pin or boltholes. The length of the cylinder connecter cables shall be measured in a jig."

While these specification requirements do not specifically reference the special tooling listed on Attachment B they, nevertheless, require that some kind of tooling be used. The solicitation offered bidders rent-free use of Government-owned tooling specifically fabricated for manufacturing the AVL Bridge. However, contrary to the provisions of ASPR 13-308(b) (v) and 13-502.1, the solicitation did not contain a price evaluation factor to eliminate any competitive advantage accruing to bidders electing to use the special tooling. This means, in effect, that a bidder who may have wished to use his own production resources rather than rely on unwarranted Government-owned special tooling would be placed at a competitive disadvantage if he elected to purchase or produce the tooling himself and include the costs thereof in his bid. In other words, the solicitation provided a built-in incentive to use the free Governmentowned tooling. In the light of these circumstances, we think it

allowed recovery of overhead and engineering costs incurred to resolve discrepancies between contract drawings and defective Government-owned tooling furnished "as is". More to the point is the Board's decision in Boland Machine & Manufacturing Company, Inc., ASBCA No. 13664, 70-2 BCA par. 8556, wherein recovery was allowed on one of three claims under factual circumstances similar to those present in the instant case.

In Boland the appellant undertook to complete the construction of a small surveying ship after the original contractor had defaulted. After the de fault, but before appellant's contract was let, the un completed hull was damaged by a hurricane. In order to prevent complete deterioration of the hull, a separate contract was let for the cleaning and reconditioning of flooded areas and all equipment. The procuring agency (Navy), however, was strapped for time and money and, as a consequence, the clean up work was not performed as thoroughly as it might have been. A full examination by the Navy of piping systems for removal of mud, sand, and other foreign matter was foregone to same time. As a result of the limited inspection of the clean up contractor's work the Navy did not learn that all mud had not been removed from the piping systems. Appellant, however, was not apprised of the limited Navy inspection and the invitation to bid and contract contained no reference to that fact. The hull of the ship was furnished to appellant for completion on a "where is-as is" basis with a specific disclaimer of warranty as to suitability for use with a specific disclaimer of warranty as to suitability for use in performance of the contract. Prior to submission of its bid appellant's project superintendent inspected the hull. He conceded that he could have discovered certain defective welding, and lack of check valves, both of which were attributable to the de faulted contractor, but in light of the IFB as read by him he was not looking for such defects. project superintendent also admitted that he could have examined the piping, but did not do so for the same reason. The Board denied the appellant's claims for repairing defective welding and for furnishing the missing check valves on the basis of the disclaimer of warranty. However, the claim for cleaning the piping system was allowed. As to that claim the Board stated:

The

"On the other hand, respondent, as shown by the
testimony of its project engineer, had been short of
money and time and had not inspected the vessel thoroughly
after completion of the Buck Kreihs [Clean up] contract and
did not know to what extent Buck Kreihs had performed its
task in all areas of work or how thoroughly it had done so.

"In the circumstances, shown on the record and
heretofore summarized, respondent was under a duty
to disclose its knowledge of the possible incompleteness
of the work performed by Buck Kreihs. Helene Curtis
Industries, Inc. v. United states *** 160 Ct. Cl. 437,
443 et seq. (1963). The duty of disclosure is not limited

to technical matters but extends to other relevant
facts. Bateson-Stolte, Inc. v. United States * * *
145 Ct. Cl. 387 (1959). Here the facts to be disclosed
to bidders were the limits of the final inspection which
it had conducted under the Buck Kreihs contract to
ascertain that all work contracted for was actually
done by that company. Had it done so, appellant would
have been in a position to guard against the cost
incurred to accomplish what Buck Kreihs should have
done in completely performing its contract.
piping clean-up claim should be allowed."

Hence, the

The present appeal presents an even stronger case for relief than Boland. The facts of record speak eloquently in behalf of appellant's position. Offering rent-free use of the defective Attachment B special tooling of this procurement can be characterized, without much exaggeration, as the tendering of poisoned carrots to unwary rabbits.

Some of the special tools, including the three major assembly fixtures, contained latent defects and, thus, were not discoverable by visual inspection. inspection. Most of the tools could not be verified for accuracy during the prebid period. This was due in large part to the inordinate time and effort required. To demonstrate this, we need only recall Mr. Rau's estimate that it would take 1,200 manhours to review, check out and calibrate the tools. This translates into 150 days for one man working an 8-hour day. A period of 150 man days to determine whether special tooling is suitable for use is certainly beyond the reasonable limits of feasible inspection. In addition, certain of the holding fixtures simply could not be verified for accuracy without parts or components to place in them, i.e., without actually using them.

Seventy-six tools sued by Allison on prior contracts were worn out and deleted from Attachment B as scrap. Appellant assumed, reasonably we believe, that the gaps appearing on Attachment B represented tools which had become obsolete because of revisions to the contract drawings. It had no reason to suspect that the Attachment B tooling was only a partial list of the tooling needed for the job. The procurement activity was aware of this and also knew the reason for deleting the 76 scrapped items, out revealed neither item or information. On the other hand, also known to appellant, tools that were actually obsolete were included on Attachment B. Allison knew this. If the inspection and screening by the DCAS-Phoenix property personnel had been as thorough as Mr. Rau claimed it was (Tr. 8-28), then the Government also knew it, or should have known it.

None of the foregoing important information was disclosed to appellant prior to bid opening, but under the rulings in Boland, Helene Curtis and Bateson-Stolte it should have been. Failure to do so imposes liability on the Government for the excess costs incurred by appellant on account of the defective tools. The "as is" disclaimer of warranty is not a defense under the circumstances of this appeal.

There is yet another reason why the "as is" disclaimer of warranty provisions should not be given effect under the facts of this case. Section 2-302 of the Uniform Commercial Code provides:

"(1) If the court as a matter of law finds

the contract or any clause of the contract to have
been unconscionable at the time it was made the
court may refuse to enforce the contract, or it
may enforce the remainder of the contract without
the unconscionable clause, or it may so limit the
application of any unconscionable clause as to
avoid any unconscionable result.

"(2) When it is claimed or appears to be
court that the contract or any clause thereof
may be unconscionable the parties shall be
afforded a reasonable opportunity to present
evidence as to its commercial setting, purpose
and effect to aid the court in making the deter-
mination."

Probably the main purpose for including an "as is" disclaimer of warranty provision in a contract is to enable the owner of property, in either selling or loaning it, to avoid liability for defects the rein which are unknown to him. See the Boland case, supra. That is not the situation in the present appeal. The special tooling, as previously noted, had been inspected and screened by DCAS-Phoenix personnel and its physical, outward condition, at least, was known to the Government. However, the main reason why the contracting officer offered the tooling "as is" was not because of its unknown condition, either latent or discernible, but because of what he considered to be the "nature" of the special tooling, i.e., because he believed that, for the most part, it would only be compatible with capital equipment comparable to that used by Allison and might not be useable by another contractor possessing different capital equipment. His understanding, as we have seen, was wrong. The "as is" disclaimer provisions should not have been used for the purpose stated without adequate warning that the widely-accepted definition of special tooling in ASPR did not apply to the Attachment B tooling and that something else was meant. In any event, the reason given for utilizing the "as is" disclaimer in this case was not warranted in either fact or law.