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seen in connection with the claim placement cages for an extended for scaling and flaking interiors, the period of time on the assumption contracting officer found that 620 that a portion of the rejected pipe 54-inch pipe of the listed classes might eventually be accepted. It is were accepted after the extent of true that Messrs. Murray and Herscaling had been determined. rera admitted that they considered
The claim was computed on the a percentage (Mr. Herrera indibasis that there were 270,561 pounds cated that he thought up to 25 perof steel in the surplus cages which
cent of the pipe rejected in the May had a completed value of $.15 per
15 inventory would be reclaimed pound. Mr. Peterson, who was
with minor repair) of the rejected principally responsible for the pipe would ultimately be accepted computation of Cen-Vi-Ro's claims, (Tr. 735, 749, 780, 885). Examinatestified that $.15 a pound repre
tion of the contract (Exh. 1) indisented the cost of the cages shown
cates that in excess of 4,900 54-inch on Cen-Vi-Ro's books (Tr. 1007, pipes of the listed classes were re1078). After allowing a salvage quired for DC-6000. A tabulation credit of $.005 per pound, the direct
attached to a memorandum from the loss was computed at $39,231.35. To
resident engineer, dated March 8, this figure, Cen-Vi-Ro added a
1965 (Exh. 16), reflects that 2,123 lump sum of $6,500 for disruption pipes (51A25, B25 and AB50) were of production schedules, cage ma
required to meet pipe laying rechine changeovers, rehandling of quirements through July 31, 1965. cages, steel, etc., and 15 percent for
While the tabulation indicates that overhead and profit.
550 pipes in excess of laying requireThe contracting officer empha
ments through July (laying require
ments for this size and classes of sized the fact that Cen-Vi-Ro representatives were advised that the pipe beyond July are not stated)
had been manufactured, 172 of these Bureau would review pipes rejected for scaling, found that Cen-Vi-Ro pipes had been rejected prior to May
15, 1965 (Exh. 59). As we have requested delay of this review pend
found, 879 additional pipes of this ing demonstration of the Centriline
size in these classes were rejected Process and denied the claim for the reason that Cen-Vi-Ro's proceeding Board finds that Cen-Vi-Ro's deci
during the May 15 inventory. The with cage manufacture under such
sion to resume manufacture of circumstances was a voluntary and
for these pipes was reasonable. unnecessary act. Cen-Vi-Ro cites paragraphs (b)
Decision and (c) of Clause 10, Inspection and Acceptance, requiring it to Since we have found that Cen-Vipromptly replace rejected material Ro's decision to resume manufacor workmanship and alleges that it ture of 54AB50 cages was reasoncould not delay manufacture of re- able, the issue is whether at least 364
February 7, 1973
54-inch pipes (classes A25, B25, and Among the defects normally reAB50) rejected during the May 15 pairable in accordance with the inventory complied with the specifi- Concrete Manual is: “3. Roughness cations. In view of our finding that due to form-joint leakage.” 1,013 pipes were wrongfully re- Paragraph (h) of Section 137 of jected during the May 15 inventory, the Concrete Manual provides in we have no hesitation in answering part: this question in the affirmative.
Occasional pipe having lesser repairs We accept Cen-Vi-Ro's direct cost capable of affecting the performance of figure for these cages less the $.005
the pipe if the repairs are not sound shall
be tested to assure the security of such per pound salvage credit. However,
typical lesser repairs. there is no evidence to support the lump sum of $6,500 claimed for dis- While it is possible that some final ruption of production schedules, re
rejects for seam joint roughness are handling of cages, steel and etc. The
included in the 91 final rejects for appeal as to surplus cages is sus
miscellaneous reason (Cen-Vi-Ro's tained in the amount of $39,231.35.
tabulation of 1,744 final rejects inThe matter of overhead and profitcludes 63 for miscellaneous reasons, is considered infra.
Exh. 5N, p. 10), there is no evidence
that this is so. Our examination of Seams
the Final Inventory of Rejected
Pipe (Exh. 152) reveals a total of This aspect of the claim involves eight pipes where bad seams or seam pipes with grout leakage at form
leaks were listed as among the reaseams. In addition to provisions of
sons for rejection. None of the identhe specifications quoted previously tified pipes examined by Dr. Davis providing for adequate repair of
(Exh. 154) list seam leaks or bad forms and for discarding defective
seams as a cause for rejection. forms (note 126, supra), Subpara- Since Cen-Vi-Ro's claims under graph 67.e.(2) of the specifications this heading appear to be limited to provided in pertinent part:
alleged excessive testing on pipes All forms shall be sufficiently tight with with repairs at seams, we will consuitable gaskets provided at all form
sider this aspect of the claim under joints and gates to prevent leakage of
the heading “Testing Criteria.” mortar, Paragraph 4 of the resident engi
Core Holes neer's memorandum of May 21,
This claim involves pipes in which 1965, provided :
holes were drilled to obtain samples 4. Grout leakage at seams may be re- of concrete. It will be recalled that paired before tests are made if cracks
the chief plant inspector's memoare not evident after all defective con
randum of March 31, 1966 (note 29, crete is removed. The repaired pipe will be rejected if it fails to pass the required
supra), required the rejection of test.
pipes with more than two repaired
core holes. Pipes with two repaired cated to have six core holes and a core holes were acceptable if the bad interior (66AB50 x 20, No. core holes were more than six feet 13D, mfg. 3–3–65) and one is indi
) apart and if the pipe passed the hy- cated to have five core holes and a drostatic test. In its letter of protest, flaky interior (66AB50 x 16, No. 9N, dated April 18, 1966 (note 111, mfg. 6–8–65). The remaining pipe
. supra), Cen-Vi-Ro conceded that (54B75, No. 3N, mfg. 64–65) is inthe Concrete Manual did not pro- dicated simply to have been cored vide for the repair of core holes but and also to have a rocky bell. alleged that it had for many years made a practice of repairing such
Decision holes regardless of their position in
Cen-Vi-Ro concedes there is no the pipe. The project engineer's reply of May 9, 1966 (note 111, provision of the Concrete Manual or
the specifications providing for the supra), stated flatly that pipes in
repair of core holes. However, Cenwhich core holes had been drilled to
Vi-Ro asserts that it is industry obtain samples samples could not
practice to permit the repair of such accepted.
holes without testing. While there In the Appendix to its claim
is no doubt that industry practice (Exh. 51, p. 9), Cen-Vi-Ro admits
may properly be applied to deterthat neither the specifications nor
mine the meaning of contract lanthe Concrete Manual provide for
guage notwithstanding that the conthe repair of pipes with core holes.
tract is unambiguous, 161 we do not However, Cen-Vi-Ro asserts that it
think that such trade practice even is industry practice to allow the re
if it existed, would in the circumpair of such pipe without testing.
stances present here, justify a holdThere is no evidence to support this ing that all core holes were repairassertion.
able. In any event, there is no eviThe contracting officer found that dence of such a practice. It follows no pipes were rejected in accord- that the claim with respect to core ance with the criteria in the chief
holes must be and hereby is denied. plant inspector's memorandum (par. 61, Findings of Fact). He de
T'esting Criteria termined that one pipe with two core holes was downgraded because
The contract (Subparagraph of leaks at the repaired area on hy 67.1.(1)) required hydrostatic pres
) drotest and that only one pipe with
sure tests in each test period on one six core holes was rejected for core
percent, but not less than one pipe holes. We find only three pipes in
unit of each size and class of pipe, the Final Inventory of Rejected
and hydrostatic joint tests on onePipe (Exh. 152) in which core holes
161 Gholson, Byars d Holmes Construction are listed as among the reasons for Company v. United States, 173 Ct. Cl. 374
(1965); WRB Corporation, et al. v. United rejection. One of these pipes is indi
States, 183 Ct. Cl. 409 (1968).
February 7, 1973 half percent, but not less than one ary to require a hydrotest on every joint, for each size and class of pipe. section of concrete pressure pipe The length of the test period, for the (Tr. 2324, 2325). It is therefore purpose of selecting representative clear that by not requiring a hydropipe units for tests, was set at the static test on each pipe, the Bureau number of days the plant of the obtained a more economical line and manufacturer was normally op- accepted the risk, subject to rights erated in a calendar week. The under the Inspection and Acceptlength of the test period could be ance and Maintenance Warranty reduced at the discretion of the con- Clauses, that some flawed or defectracting officer if there were a sig- tive pipes might not be detected. nificant change in the materials Cen-Vi-Ro contends that the Buused in the pipe, in the mix propor- reau consistently held the contractions, in production procedures or if tor to a standard of pipe quality there were numerous shutdowns of different from that called for by the the pipe manufacturer's plant due contract (Exh. 5L, p. 2; Exh.5M, p. to failures of the plant or equip- C2). Cen-Vi-Ro asserts that the Bument. The specifications (Subpara- reau refused to permit the repair graph 67.i.(2)) required that the of many pipes which were repairpipe be soaked at least three hours able in accordance with the Conunder ten p.s.i. prior to conducting crete Manual prior to hydrostatic the hydrostatic test. Pipes were to testing and thus achieved additional be tested at 120 percent of the speci- depth in lot testing. We have found fied internal pressure of the class for that this assertion is correct as to which the pipes were designed for repairable rock pockets and longi20 minutes and if the unit selected tudinal and circumferential cracks. as representative of the lot failed Cen-Vi-Ro complains that Bureau the test (leaked or evidenced cracks representatives visually selected the extending under pressure), the con- most questionable pipes to be tested tractor was entitled to have two rather than using random sample other pipes selected by the contract- techniques. It is further alleged that ing officer from the same lot tested. units were rejected arbitrarily or If these pipes passed the test, re- were placed in limbo whereupon the ferred to as check tests, the lot was contractor had the burden of provaccepted. If either of these pipes ing the pipes were satisfactory failed, the lot would not be accepted which could only be done by a hyuntil each pipe in the lot passed the drostatic test (Notice of Appeal, test.
pp. 29-3). Cen-Vi-Ro further asIt is, of course, more expensive to serts th: ; Bureau inspectors were require testing of each piece of pipe inexperienced in concrete pipe, that (Tr. 1765-1767). The Government's the project engineer and the chief expert witness, Mr. McLean, testi- plant inspector had previously been fied that it was normal and custom- associated with a prior contract of the Canadian River Project (Spe- pipes with imperfections which cifications No. 5863) wherein each could not be represented by lot or pipe was required to be tested and check tests (par. 65, Findings of that it was difficult for them to ad- Fact). The Government has stipujust to a contract requiring only lot lated that no provision of the contesting. It is further alleged that tract authorized special hydrostatic contrary to the contract, Bureau in- tests (Tr. 343). This stipulation spectors substituted hydrostatic must, of course, be viewed in the testing for visual judgment and de- light of the Government's position sired to have the maximum possible that the Concrete Manual is not a number of pipes hydrotested. part of the contract. We note Mr.
According to Cen-Vi-Ro's fig. Herrera's testimony that tests on ures, there were 1,680 special hydro- repaired pipes in accordance with static tests (Exh. 5N, p. 11). Cen- the Concrete Manual were considVi-Ro is apparently claiming the ered special hydro tests (Tr. 704, cost of conducting 1,483 of these 705). tests. Government figures indicate Cen-Vi-Ro computed its bid on that there were 764 lots, 767 lot tests the basis that approximately three of individual pipes of which 106 percent of 30,000 or 900 pipes would failed, 165 check tests representing be tested under DC-6000 and that lots of which 38 failed, 95 check one test stand capable of testing two tests of individual pipes of which 18 pipes at a time would be sufficient.163 failed and 1,801 special hydrostatic In view of the fact that a plant for tests of which 821, or 45.6 percent, the manufacture of the pipe had to resulted in failure.162 The total num- be constructed, that it is normal in ber of hydrotests (lot, check and the operation of a newly constructed special) was 3,171. As we have in plant to have a considerable period
a dicated ante, “special hydro” was elapse before satisfactory pipes are the name given to hydrostatic tests produced (note 106, supra) and in other than lot tests which were not view of the provisions of the conrequired by the contract. The con- tract requiring the testing of each tracting officer found that special pipe in the lot if either of the check hydro tests were permitted to be tests resulted in failure, we think it performed by the Government on clear that the assumptions on which
the bid was based were too sanguine, 162 Hydrostatic Test Study, Exh. 64. We to
the least. As we have seen, have some difficulty with the accuracy of this percentage since it is based on adding into the
hydrostatic tests actually conducted total of 1.589 special hydrostatic tests, the were approximately 312 times the total (212) of a column entitled "Repair and Re-Hydro." Mr. Dale Powell, who prepared the
number contemplated at the time Study, testified that the 212 represented tests
the bid was prepared. in addition to the 1,589 (Tr. 1654) ; yet an
The original test equipment caexplanatory note appended to the Study states that these were pipes which initially failed hydro and that retests, if made, are indicated 163 Tr. 337, 338, 635, 636. Working papers in the failure column or in the “Downgraded upon which the bid was calculated are not and accepted" column.
in the record.