pairs and rejected if dripping occurs under required test pressure and will not heal within 7 days. The Reclaim Program The process of reinspecting, repairing, testing, and securing the Bureau's acceptance of pipes rejected during the May 15 inventory is referred to as the reclaim program. The reclaim program did not commence until on or about the first week in August 1965 (Tr. 1424, 1522; Inspectors Daily Reports, dated August 3 and August 9, 1965). However, only eight pipes are listed as reclaims prior to September of 1965 (Summary of Pipe Units Reclaimed, Exh. 146). This process continued until the completion of pipe manufacture in June of 1966 (Exh. 5L). Of the 2,877 pipe units under Specifications DC-6000 rejected during the May 15 inventory, at least 2,260 pipes, including 1,920 rejected for scaling or flaking interiors, were later accepted or reclaimed (App's Exh. C). However, the above number of reclaims does not include 150 pipes rejected for fallouts and 233 pipes rejected for rocky bells during the May 15 inventory which were subsequently accepted. The majority of the reclaimed pipes were accepted during the period July through December (1,032 were accepted during September) 1965 (Exh. 146). Production After May 15, 1965 After May 15, 1965, Cen-Vi-Ro experienced an improved rate of production and a reduced rate of rejects. Cen-Vi-Ro produced a total of 30,133 30 pipe units under DC6000 of which 10,641 were manufactured prior to May 15, 1965, and 19,492 from May 15, 1965, until the cessation of production in June of 1966 (Exh. 5Q). Final rejects totaled 1,845 or approximately 6.12 percent, of which 1,250 were manufactured prior to May 15, 1965. Under Specifications DC-6130, CenVi-Ro produced 25,586 pipe units (RCP, 18", 21", 24" and 27" diameter) of which 5,898 were manufactured prior to May 15, and 19,688 were produced after May 15, 1965.31 Final rejects of RCP under DC-6130 totaled 1,078 of which 319 were manufactured prior to May 15 and 759 after that date.82 Cen-Vi-Ro originally contemplated completing pipe production under both contracts in September 1966 (Exhs. 77 and 81P). Pipe manufacture was actually completed on June 16, 1966, or approximately 212 months earlier than planned (Tr. 1846). Cen-Vi-Ro's Claims In a meeting with Bureau representatives on May 20, 1965, Cen-ViRo placed the Bureau on notice that 30 Includes 54" and 72" pipes manufactured in the north plant for Specifications DC-6130 (Tr. 1627 and 1630). 31 Exh. 81R. This tabulation includes 170 special 8-foot length pipes while the Comparison of Rejected Pipe Remaining in Yard July 1966 to Total Production (Exh. 81Q) excludes such pipes. 32 Exh. 81R. There appears to be a transposition of figures on this exhibit since rejects of 27-inch pipes prior to May 15, 1965, are totaled as seven when the correct total is nine and rejects after May 15 are totaled as 323 when the correct total is 321. February 7, 1973 it considered that the May 13 letter rewrote the specifications and would increase contract costs by 25 percent (memorandum, dated May 21, 1965, Exh. 21). Bureau representatives stated that the basic purpose of the letter was to assure that only quality pipe be installed in the line under both contracts. By letter dated June 10, 1965 (Exh. 5G), Cen-Vi-Ro commented on each requirement of the May 13 letter and stated that it was preparing a claim which would include additional manufacturing costs incurred by the changes, costs of pipes previously manufactured and accepted but now rejected and additional costs to the pipe-laying subcontractor because of unavailability of pipes which had been previously accepted. Cen-Vi-Ro reiterated its contention that the May 13 letter effected changes to the specifications in a formal statement of position, dated August 9, 1966 (Exh. 5L), which included allegations that neither the contract nor the bid papers placed the contractor on notice that certain pipes must pass hydrostatic tests prior to repair, that certain repaired pipes could not be accepted and that pipes must be of such quality that the line could not be closed during the 3-year maintenance warranty period for repairs.3 Cen-Vi-Ro submitted its formal 33 The latter contention is based on the opening statement of the May 13 letter which refers to the requirement for the delivery of municipal water on a continuing and uninterrupted basis. However, the evidence reflects that Cen-Vi-Ro was permitted to break the line for repairs during the warranty period (Tr. 608, 1726, 1727). claim for additional compensation Applicability of the Concrete Cen-Vi-Ro's position that the May 13 letter effected changes to the specifications is based primarily upon the contention that the contracts expressly incorporated the provisions of the Bureau of Reclamation Concrete Manual 4 as to permissible repairs. 34 Cen-Vi-Ro relies upon Subparagraph 67.j.(2), Specifications DC6000: Individual airholes in gasket bearing areas of precast-concrete pipe may be filled with a hand-placed, stiff, pre-shrunk 1:1 mortar of cement and fine sand with no other preparation than thorough washing with water. Such fillings shall be kept moist under wet burlap for at least 48 hours or steam cured as required in Subparagraph e. (4) (a) for a minimum 12 hours. All other repairs shall be made in accordance with the procedures of Chapter VII of the Sixth Edition of the Bureau of Reclamation Concrete Manual.35 (Italics supplied) 34 Sixth Edition, Exh. 45, as to DC-6000 and Seventh Edition, Exh. 117, as to DC-6130. Section 137 of Chapter VII of the Sixth Edition, is set forth in Appendix "B". 35 Except that the reference is to the Seventh Edition of the Concrete Manual, an identical provision is contained in Subparagraph 77.j. (2), Specifications DC-6130. It should be emphasized that the Concrete Manual is also referred to in Subparagraph 67.e.(1) of the specifications concerning mixing time and compressive strength tests. Section 137 of Chapter VII of the Sixth Edition of the Concrete Manual provides in part: 137. Procedure for Repair of Precast Concrete Pipe-(a) General.— Most imperfections in and damage to precast concrete pipe, such as inadvertent or occasional imperfections or damage that occurs during normal operations, can be repaired and the pipe made acceptable. But repairs should not be permitted where the imperfections or damage are the result of continuing failure to take known corrective action to eliminate the cause of the imperfections or damage. Imperfections and damage that can normally be repaired are: (1) Rock pockets. (2) Exposed steel on the outside of any size pipe and on the inside of pipe 36 inches or larger in diameter. (3) Roughness due to form-joint leakage. (4) Broken bells containing circumferential reinforcement. (5) Impact damage over less than 45° of circumference except for spigots. (6) Fractures or cracks passing through the shell. (7) Out-of-round bells, if not so far out of round that reinforcement steel will be exposed after repair. (8) Spalled shoulders on spigots for support of rubber gaskets. (9) Air holes and roughness in the gasket bearing surfaces of bells and spigots. Imperfections and damage that cannot normally be repaired are: (1) Spigots or bells that are out of round or are off center to the extent that reinforcement would be exposed after the repair. (2) Spun pipe out of limits for diameter because of an excess or deficiency of concrete having been placed in the form. (3) Porous, unconsolidated spigots in dry-tamped pipe. (4) Exposed steel inside of pipe smaller than 36 inches in diameter. Repairs should not be permitted on pipe damaged by impact when the damaged area covers more than 45° of the pipe circumference. Also, repairs should not be permitted on gasketed spigots if the break is entirely through the shell and into or beyond the area of gasket bearing and extends more than 4 inches around the circumference under the gasket. Pipe that is imperfect or damaged beyond repair on one end can frequently be cut and the good end used at structure connections. (b) Methods of Repair The Government asserts that the Concrete Manual covers how repairs are to be accomplished but not what can be repaired.37 In other words, the Government's position is that after the Bureau, in its discretion, determined that a specific pipe could be repaired, then and only then did the Concrete Manual come into play in determining how the repair was to be effected.38 Cen-Vi-Ro points se Section 141 of Chapter VII of the Seventh Edition contains identical provisions as to imperfections and damage that normally can and cannot be repaired. However, the section contains additional provisions that imperfections should be detected and the causes corrected as early as possible in the manufacturing process and repairs effected immediately. The section also limits repairs of prestress pipes to defects that do not involve structural adequacy. Statement of Position, IBCA-718-5-68, pp. 21-26; Brief p. 104, et seq. 38 The following provision of Paragraph 72, Specifications DC-6130, arguably supports the Government's position: *** Any unit of pipe that, in the opinion of the contracting officer, is damaged beyond repair by the contractor in hauling, handling, unloading, storing, or otherwise shall be removed from the site of the work and replaced by and at the expense of the contractor with another unit reinforced February 7, 1973 out that had the Bureau intended to limit application of the Concrete Manual to the method of repair it would have referred only to Subsection (b) entitled "Methods of Repair" of Section 137.39 The Government's answer to this contention is that the reference in the contracts to the Concrete Manual is to "procedures" and that procedures and methods are synonymous. We find little merit in this argument since Section 137 of Chapter VII of the Concrete Manual is entitled "Procedure for Repair of Precast Concrete Pipe" and it is highly probable that this explains the reference to procedures in the contracts. While it is true that the dictionary affords support for the Government's position, it is well settled that the dictionary is not the sole or final source of inquiry as to the meaning of a contractual provision.40 The Government's principal contention is that the reference to repair to withstand the same or greater head and loading requirements. Repairs in concrete pipe, when allowed, shall be made in accordance with the provisions of Chapter VII of the Seventh Edition of the Bureau of Reclamation Concrete Manual." While it might be argued that "when allowed" refers to the Concrete Manual as well as the specifications, the term does not appear to serve any useful purpose under such a construction. It is, of course, clear that this provision contemplates repairs to pipes in addition to air holes. No comparable provision appears in Specifications DC-6000. Page 4 of Notice of Appeal, dated May 3, 1968, Exh. 6. 40 Paschen Contractors, Inc. v. United States, 190 Ct. Cl. 177 (1969). Cf. United States v. Lennox Metal Mfg. Co., 225 F.2d 302 (2d Cir., 1955) (word "may" in partial payments clause did not confer unfettered discretion on contracting officer in making payments to contractor). of air holes in the specifications is unnecessary and redundant if the provisions of the Manual as to what type of defect can be repaired are incorporated into the contracts as contended by Cen-Vi-Ro. We have examined Section 137 of the Sixth Edition of the Concrete Manual and find nothing which specifically describes a method for repair of air holes." Accordingly, we think it evident that the reference to air holes 42 in Specifications DC-6000 was to establish a simplified method for their repair and to remove any doubts that the elaborate provisions of the Manual as to preparations for repair (removal of unsound concrete, sand blasting, scrubbing) and cure (repairs at joints to be cured under wet burlap for seven days) are inapplicable. Viewed thusly, the specification method for the repair of air holes is at variance with the methods of repair in the Manual and the sentence following that all other repairs shall be made in accordance with the Manual is eminently logical. Another very important consideration is the conduct of the par 41 Section 141 of the Seventh Edition contains a provision describing a permissible method for the repair of air holes which is identical to that quoted above from the specifications. 42 We recognize that the provisions of Subparagraph 67.h. (4) (g), DC-6000 (77.h. (4) (g), DC-6130), providing that "The surfaces of bell and spigot in contact with the gasket and adjacent surfaces that may come in contact with the gasket within a joint movement range of three-fourths inch, shall be free of airholes, *** or other defects, except that individual air holes may be repaired implies that no other repairs to gasket areas of bells or spigots are permissible. 43 ties prior to any dispute. First and foremost, the May 13 letter from the project engineer stated that the specifications, by reference to the Concrete Manual, prohibited repairs to concrete pipe when the imperfections were the result of continuing failure of the contractor to eliminate causes of imperfections or damage." That this was also the view of the contracting officer is established by his telegram of May 12, 1965, to the project engineer (furnished in response to the Board's call of August 18, 1971), which resulted in the May 13 letter. Secondly, contemporaneous documents clearly reflect that prior to the May 13 letter the parties operated on the premise that whether repairs to specific pipes were permissible was governed by the Concrete Manual.45 Thirdly, Messrs. Franklin, Herrera and Murray all testified that the Concrete Manual was used as the basis for determining what pipes could be repaired (Tr. 435, 753, 883). Fourthly, Mr. Rippon, who wrote the 43 It is, of course, well settled that the interpretation placed upon a contract provision by the parties is entitled to great weight in determining its meaning. Hydromatics, Inc., ASBCA No. 12137 (October 20, 1969), 69-2 BCA par. 7962; Compec (a Joint Venture), IBCA-573-6-66 (January 4, 1968), 75 I.D. 1, 68-1 BCA par. 6776 and cases cited. 44 Appellant points out that this quotation is inaccurate inasmuch as it eliminated the phrase "known corrective action." 45 See Inspectors Daily Reports, dated January 1 and 8, and April 16, 1965; see also Pipe Rejection Certifications, dated December 2, 8, 21, 23, 24, and 31, 1964, and March 31, April 6, 16 and 23, 1965 (App's Exh. E; Exh. 121). In addition, see the reference to "known corrective action" in the assistant project engineer's memorandum, dated February 18, 1965 (Exh. 15). 46 specifications at least in part, conceded that it was his intent that repairs were to be permitted in accordance with the Concrete Manual. In view of this evidence, we find that the testimony of the chief plant inspector, the resident engineer, and the project engineer that the Concrete Manual was only a guide (Tr. 1485, 1955-1956, 2084) does not accurately depict the practice of the parties. We find therefore that the contracts contemplated that repairs in accordance with the Concrete Manual were permissible. Remaining to be determined is the effect of this finding. The Government asserts that even if the Concrete Manual is elevated to the status of a contractual document, the Manual permits the repair of only occasional imperfections and damage. However, appellant points out (Brief, pp. 6 and 7) and we think correctly, that the Government's emphasis on the word "occasional" results from an inaccurate reading of the Manual. The fact is that the Manual provides: Most imperfections in and damage to precast concrete pipe, * * *, can be repaired and the pipe made acceptable. The clause "such as inadvertent or occasional imperfections or damage that occurs during normal operations" which we have omitted from the quoted sentence is in our view merely illustrative and not restric 48 Tr. 1771, 1772. See also statement of Mr. Ryland at the meeting of July 24, 1965, to the effect that repairs as outlined in the Concrete Manual were to be permitted on only occasional imperfect pipe (p. 5, Notes on Meeting, Exh. 24). |