February 7, 1973 pable of testing two pipes at a time, proved to be inadequate. The need for additional hydrostatic testing equipment was apparent by October of 1964 (Tr. 338, 526, 527, 680; memorandum, dated October 22 and letter dated October 30, 1964, Exhs. 8 and 9). Cen-Vi-Ro installed additional testing equipment at a date not certain from the record. Mr. Franklin testified that the additional testing came about because of special hydrotests (Tr. 339). He stated that the practice originated at an early date in pipe production on pipes which were not acceptable to the Bureau based on visual examination and not finally rejected in order that a determination of whether the pipe was acceptable could be made. He further stated that one of the purposes of special hydrotests was to convince Bureau inspectors that pipes with apparent minor defects were sound (Tr. 340, 341). He conceded, however, that in the initial stages of pipe production special hydros were the result of a joint effort by Cen-Vi-Ro and Bureau personnel, that such tests were a means of determining the viability of repaired pipes 164 and that some of the early special hydros were conducted at Cen-Vi-Ro's initiative (Tr. 343, 529, 531). He also admitted 164 The earliest indication of special hydrostatic tests is an Inspectors Daily Report, dated June 27, 1964, which states that four pipe joints were tested: one of which had a patched bell, one had a slump patch, one had minor repairs to bell and barrel and one had drummy areas at gyro rings. Thereafter the practice of marking pipes for special hydro is mentioned frequently in Inspectors Daily Reports. that Cen-Vi-Ro personnel on occasion marked pipe for special hydro and that there was a relationship between hydrostatic tests and the number of defective pipes (Tr. 534, 535). Testimony that Cen-Vi-Ro personnel at times marked pipes for special hydro was confirmed by Mr. Herrera, Mr. Thomas, chief plant inspector for the Bureau, and by contemporaneous memoranda (Tr. 705, 1409, 1410; Inspectors Daily Reports, dated May 4 and 11, 1965). The Hydrostatic Test Study (note 162, supra) reflects that there were a total of 42 pipes tested for Cen-ViRo quality control of which 15 failed the test. The Board finds that Cen-Vi-Ro participated in and agreed to the practice of conducting special hydrostatic tests on otherwise doubtful pipes in the early stages of production. The chief plant inspector testified that pipes upon which the Bureau required special hydrostatic tests were pipes with obvious defects which would otherwise have been rejected.165 However, he also testi 165 Tr. 1399, 1408. We note at least threeinstances of pipes marked for special hydro because of alleged improper cure (Inspectors Daily Reports of August 31, September 2 and October 27, 1964). It is at least doubtful that these pipes had obvious defects. In any event, the test established by the contract for proper cure was compressive strength of concrete cylinders. See also Inspectors Daily Report, dated November 20, 1964, which indicates pipes were subjected to special hydros because of being vibrated only during charging of the form and because of being spun while the form was only one-half full of concrete. A memorandum, dated March 25, 1966, written by Mr. Herrera, stated that although four20-foot pipes manufactured on March 18, 1966, passed hydrostatic tests, the Bureau required four more pipes of the quantity manufactured fied that the Bureau required special hydros because they questioned the seriousness of the defect and to give the Bureau another means of judging the extent of the defect (Tr. 1400, 1511, 1512). As we have seen, most pipes with gyro area concrete were required to be tested as a condition of their acceptance. If the pipes passed the test they were generally accepted without the necssity of repairs unless the Bureau questioned the structural soundness of the pipe (Tr. 1400). The Government asserts that this resulted in undoubted savings to Cen-Vi-Ro (Brief, p. 89). The Bureau also required hydrostatic tests on pipes with major repairs such as repairs to bells and spigots, fallouts, impact damage and longitudinal and circumferential cracks in order to test the repaired areas (Tr. 1399, 1400, 1412). If the repairs were properly classified as major, this practice was, of course, fully in accord with the Concrete Manual. An Inspectors Daily Report, dated December 7, 1964, indicates that 462 pipes had been marked for special hydro as of that date, that 52 had passed and that there were 410 remaining to be tested. The number of pipes requiring special hydrostatic tests had increased to 583 as of February 12, 1965 (memorandum, dated February 18, 1965, note 45, supra). The Cumulative Daily Pipe Record (note 59, supra) reflects that the number of on that date to be hydrostatically tested because one of the pipes developed a longitudinal crack at 50-foot head after the test period of 20 minutes had elapsed. pipes marked for special hydro had increased to 668 as of May 14, 1965. Page 4 of the Special Report, dated May 21, 1965 (note 24, supra), states that 377 special hydro tests had been conducted through May 15, 1965, of which 178 resulted in failure. The report also indicates that there were 231 rejects for failure to pass the hydrostatic test out of a total of 631 tests, including lot, special and retests, representing 2.17 percent of 10,639 pipes produced through May 15, 1965. It appears that the number of pipe marked for special hydro was decreased to 404 as a result of the May 15 inventory (Tr. 1607, 1608; tabulation attached to memorandum, dated May 27, 1965, note 27, supra). Mr. Thomas testified that the decrease came about because pipes previously marked for special hydro were rejected (Tr. 1608). Of course, any such decrease was temporary since Cen-Vi-Ro was required to conduct hydrostatic tests on many of the rejected pipes in order to obtain their acceptance. While we have some doubts in the matter, we accept as accurate the number (1,801) of special hydrostatic tests shown on the Hydrostatic Test Study (note 162, supra). There is no persuasive evidence of the number of these tests which were for the purpose of testing major repairs. However, we note that Cen-Vi-Ro lists 153 special hydros under DC-6000 as "repair tests" (Exh. 5N, p. 11). Mr. Peterson testified that these were tests on pipes with major repairs (Tr. 1008, 1009). This figure appears to be low February 7, 1973 based on Cen-Vi-Ro's evidence of pipes marked for major repairs as of May 7, 1965 (note 59, supra). Results of these tests are not shown by the record. As indicative of the Bureau's attitude of desiring the maximum amount of hydrostatic testing, CenVi-Ro points to the testimony of Mr. Hubbard that he was told by the project engineer in May of 1965 that if it was up to him all pipe sections on the job would be hydrotested (Tr. 1097, 1118, 1119). The project engineer testified that Mr. Hubbard complained as to the great number of hydrostatic tests and admitted inquiring of Mr. Hubbard as to what it would cost to hydrostatic-test all pipes (Tr. 2031). He stated that he did so because of concern over the large number of patched and repaired pipes being placed in the line. The memorandum from the assistant project engineer dated February 18, 1965 (note 45, supra), states in part "Inspection appears adequate and special hydros and repairs should be requested to maintain control of quality of finished pipe." A memorandum, signed by Mr. Herrera, dated November 8, 1965 (CenVi-Ro Correspondence), states that inspection crews are needlessly selecting excessive joints for special hydros. Mr. Hubbard was of the same view (Tr. 1106). The project engineer is reported to have advised the chief plant inspector to mark some pipe for special hydro in order to obtain a better check on the pipe since several 20-foot pipes representing lot tests had recently failed (Inspectors Daily Report, dated August 17, 1965, Exh. 100). The project engineer also considered that all pipe with circumferentially cracked spigots should be hydro-tested notwithstanding the crack appeared on only one side of the pipe and that test results on pipes with this kind of defect manufactured recently had been good (Inspectors Daily Report, dated November 8, 1965). Another indication of the Bureau's attitude toward hydrostatic tests is that in a discussion concerning selection of pipes as representative of the lot for lot tests, Cen-Vi-Ro was advised that if the best appearing pipe was selected, all that appeared to be less than the best would be marked for special hydro and that increasing the lot test period would also result in more special hydros (Inspectors Daily Report, dated December 30, 1964. See also note 165, supra.) Mr. Franklin testified that CenVi-Ro's start-up problems were aggravated by an excessive number of special hydro tests (Tr. 349, 350). While he conceded that he made no written protest to the Bureau of the practice of conducting special hydro tests (Tr. 532), we find that he verbally protested to the chief plant inspector that the Bureau was rejecting and special hydroing too many pipes (Inspectors Daily Report, dated September 17, 1964). Mr. Murray confirmed that there were verbal protests of a number of special hydros (Tr. 846). It is, therefore, clear that the Bureau was aware at a relatively early date in pipe production of Cen-Vi-Ro's dissatisfaction with the large number of hydrostatic tests (Tr. 759, 2031; memorandum dated February 18, 1965, note 45, supra, Inspectors Daily Reports, dated February 6, June 1, and 29, 1965. See also Special Report, dated May 21, 1965, note 24, supra). Cen-Vi-Ro recognized the practice of conducting special hyrostatic tests when it requested reduction of the soak period for such pipe (letter of November 30, 1964, Exh. 12). Cen-Vi-Ro's request was approved by the Bureau in a letter, dated December 30, 1964 (Exh. 13). By letter, dated April 6, 1965 (Exh. 18), Cen-Vi-Ro requested approval to eliminate, at its option, the soak period on all special hydrostatic test pipes. The letter concluded with the following statement: By eliminating the soak period, more questionable pipe can be proven to be adequate and meeting all spcification requirements. 10, 1965, which placed the Bureau on notice that Cen-Vi-Ro considered that the letter of May 13 effected changes to the specifications and would increase contract costs. However, Cen-Vi-Ro was responding directly to the Bureau's May 13 letter and the only reference to additional testing in this letter is that all pipes having shorter longitudinal cracks, that is less than substantially the full length of the pipe, must be hydrostatically tested. There is no evidence that Cen-ViRo was aware at this time of the resident engineer's memorandum of May 24, 1965, to pipe inspectors concerning special hydrostatic tests. It is, of course, clear that Cen-Vi-Ro complained it was required to test far more pipe than required by the specifications at the meeting of July 24, 1965 (page 8, Notes on Meeting, note 46, supra). Cen-ViRo again recognized the practice of special hydrostatic testing when it protested what it regarded as a This request was approved by the seven-day time limit on retesting Bureau.166 It might be considered peculiar that appellant did not specifically raise the issue of excessive special hydrostatic tests in its letter of June 108 Letter of May 19, 1965 (Exh. 5F). While Cen-Vi-Ro's request to eliminate the soak period was in terms limited to special hydro pipe, the project engineer testified (Tr. 2024) and the contracting officer found (par. 69, Findings of Fact) that the waiver applied to all hydrostatic tests. It apparently applied to RCP pipes under DC-6130 also. There is some evidence that the elimination of the soak period contributed to the high incidence of test failures on pipes stored in the yard for extended periods (Herrera memoranda, dated March 23 and May 31, 1966, Cen-Vi-Ro Correspondence). formerly rejected pipes imposed by the chief plant inspector's memorandum of March 31, 1966, which pipes were being tested as part of the reclaim program to prove their competence (letter of April 18, 1966, note 111, supra). Since the Bureau was clearly aware of CenVi-Ro's position that it was being required to perform too many special hydrostatic tests and since we regard Cen-Vi-Ro's letter of June 10, 1965, as sufficiently broad to encompass a claim for any alleged changes stemming from the Bu February 7, 1973 reau's May 13 letter (it is clear that the resident engineer's memorandum of May 24 was based on the May 13 letter), the Board finds that Cen-Vi-Ro's failure to protest in writing the number and practice of special hydrostatic tests does not preclude the assertion of the instant claim.167 As high as 64 percent of pipes subjected to special hydrostatic tests for individual defects (gyro area concrete) failed the tests while 45.6 percent of all pipes so tested failed the tests (Hydrostatic Test Study, Exh. 64). The study indicates that approximately 86 percent of tests on pipes representing lots and 77 percent of pipes involved in check tests passed the tests. The Bureau has recognized that the failure rates would be higher if each pipe was tested (p. 4, Special Report, note 24, supra). Cen-Vi-Ro, as we have seen, objected to testimony concerning test failures and by implication to the introduction of the test study in the absence of a clear definition of failure in the contract. Cen-Vi-Ro's position is based on the final sentence of Subparagraph 67.i.(2) of the specifications which provides that "Slow forming beads of water that result in minor dripping which can be proven to seal and dry within one week while under the prescribed test pressure will be considered acceptable." CenVi-Ro therefore asserts that pipes. 167 It is noteworthy that none of the written protests by Cen-Vi-Ro resulted in any written modification of the May 13 letter and direc tives based thereon. which would heal with seven days. cannot be classified as failures.168 Because of limited test facilities, Cen-Vi-Ro could not, as a practical matter leave pipes on the test stands for extended periods of time (Tr. 866, 1104). We have little difficulty in concluding that Subparagraph 67.i.(2) of the specification which provides in part that pipes shall withstand the specified internal pressure for at least 20 minutes without cracking and without leakage appearing on the exterior surface establishes adequate criteria for determining failure. We also readily agree with CenVi-Ro that pipes which exhibited minor dripping on the test stand but which healed and ceased to drip within one week were acceptable insofar as hydrostatic tests are concerned.169 However, we think it 168 While the Bureau occasionally accepted pipes which dripped on the test stand on the basis of a judgment the pipes would heal (Tr. 864, 865, 1406, 1407, 1853; Inspectors Daily Report, dated January 18, 1965), as a general rule such pipes were rejected unless they healed while under the prescribed test pressure within a one-week period (Tr. 702, 865, 909, 1406; Inspectors Daily Report, dated July 30, 1964). 100 By letter, dated January 20, 1965 (furnished in response to the Board's call of August 18, 1971), the Chief Engineer authorized the acceptance of pipes under Specifications DC-6000 in accordance with the final sentence of Subparagraph 77.i. (2), Specifications DC-6130, which reads, "Where slow forming beads of water result in minor dripping, the pressure may be released and the pipe unit may be retested within 1 week and if no dripping is evident during retest, the pipe unit may be accepted for use." The letter described the requirement that the pipe remain under pressure as unintended and unnecessary. There is only fragmentary evidence (Inspectors Daily Report, dated August 30, 1965) of any recognition of this authorization prior to the chief plant inspector's memorandum of March 31, 1966 (note 29, supra). |