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pairs and rejected if dripping occurs un- rejects. Cen-Vi-Ro produced a total der required test pressure and will not

of 30,133 30 pipe units under DCheal within 7 days.

6000 of which 10,641 were manufacThe Reclaim Program

tured prior to May 15, 1965, and

19,492 from May 15, 1965, until the The process of reinspecting, re- cessation of production in June of pairing, testing, and securing the 1966 (Exh. 5Q). Final rejects Bureau's acceptance of pipes re- totaled 1,845 or approximately 6.12 jected during the May 15 inventory percent, of which 1,250 were manuis referred to as the reclaim pro- factured prior to May 15, 1965. Ungram. The reclaim program did not der Specifications DC-6130, Cencommence until on or about the first Vi-Ro produced 25,586 pipe units week in August 1965 (Tr. 1424, (RCP, 18", 21", 24" and 27" 1522; Inspectors Daily Reports, diameter) of which 5,898 were

) dated August 3 and August 9, manufactured prior to May 15, and 1965). However, only eight pipes 19,688 were produced after May 15, are listed as reclaims prior to Sep 1965.31 Final rejects of RCP under tember of 1965 (Summary of Pipe DC-6130 totaled 1,078 of which 319 Units Reclaimed, Exh. 146). This were manufactured prior to May 15 process continued until the comple- and 759 after that date. 32 tion of pipe manufacture in June of Cen-Vi-Ro originally contem1966 (Exh. 5L). Of the 2,877 pipe plated completing pipe production units under Specifications DC-6000 under both contracts in September rejected during the May 15 in- 1966 (Exhs. 77 and 81P). Pipe ventory, at least 2,260 pipes, includ- manufacture

manufacture was actually coming 1,920 rejected for scaling or flak- pleted on June 16, 1966, or approxiing interiors, were later accepted mately 212 months earlier than or reclaimed (App's Exh. C). How- planned (Tr. 1846). ever, the above number of reclaims does not include 150 pipes rejected

Cen-Vi-Ro's Claims for fallouts and 233 pipes rejected

In a meeting with Bureau reprefor rocky bells during the May 15

sentatives on May 20, 1965, Cen-Viinventory which were subsequently Ro placed the Bureau on notice that accepted. The majority of the reclaimed pipes were accepted during 30 Includes 54" and 72" pipes manufactured

in the north plant for Specifications DC-6130 the period July through December

(Tr. 1627 and 1630). (1,032 were accepted during Sep

special S-foot length pipes while the Comtember) 1965 (Exh. 146).

parison of Rejected Pipe Remaining in Yard

July 1966 to Total Production (Exh. 810) Production After May 15, 1965

excludes such pipes.

82 Exh. 81 R. There appears to be a transposi.

tion of figures on this exhibit since rejects of After May 15, 1965, Cen-Vi-Ro

27-inch pipes prior to May 15, 1965, are experienced an improved rate of totaled as seven when the correct total is

nine and rejects after May 15 are totaled as production and a reduced rate of

323 when the correct total is 321.

31 Exh. 81R. This tabulation includes 170

а

February 7, 1973 it considered that the May 13 letter claim for additional compensation rewrote the specifications and would in the amount of $2,267,868, excluincrease contract costs by 25 percent sive of a claim for surplus cages, (memorandum, dated May 21, 1965, under date of October 13, 1966 Exh. 21). Bureau representatives (Exh. 5M). The items constituting stated that the basic purpose of the alleged changes will be taken up in letter was to assure that only quality the order in which they were treated pipe be installed in the line under in the contracting officer's Findings both contracts. By letter dated June of Fact and Decision of March 26, 10, 1965. (Exh. 5G), Cen-Vi-Ro 1968 (Exh.5). commented on each requirement of the May 13 letter and stated that it Applicability of the Concrete was preparing a claim which would

Manual include additional manufacturing

Cen-Vi-Ro's position that the costs incurred by the changes, costs

May 13 letter effected changes to of pipes previously manufactured

the specifications is based primarily and accepted but now rejected and additional costs to the pipe-laying upon the contention that the con

tracts expressly incorporated the subcontractor because of unavail

provisions of the Bureau of Reability of pipes which had been previously accepted. Cen-Vi-Ro reiter- clamation Concrete Manual 34 as to ated its contention that the May 13 permissible repairs. letter effected changes to the specifi

Cen-Vi-Ro relies upon Subparacations in a formal statement of graph 67.j.(2), Specifications DCposition, dated August 9, 1966 (Exh. 6000: 5L), which included allegations that Individual airholes in gasket bearing neither the contract nor the bid areas of precast-concrete pipe may be

filled with a hand-placed, stiff, pre-shrunk papers placed the contractor on no

1:1 mortar of cement and fine sand with tice that certain pipes must pass hy

no other preparation than thorough washdrostatic tests prior to repair, that ing with water. Such fillings shall be kept certain repaired pipes could not be moist under wet burlap for at least 48 accepted and that pipes must be of hours or steam cured as required in Sub

paragraph e.(4) (a) for a minimum 12 such quality that the line could not

hours. All other repairs shall be made in be closed during the 3-year mainte- accordance with the procedures of Chap

ter VII of the Sixth Edition of the B4nance warranty period for repairs.38

a

33

reau of Reclamation Concrete Janual.35 Cen-Vi-Ro submitted its formal

(Italics supplied)

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).

84 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.

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 dam. aged 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

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 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

or

30 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.

27 Statement of Position, IBCA-718-5-68, pp. 21-26 ; Brief p. 104, et seq.

36 The following provision of Paragraph 72, Specifications DC-6130, arguab 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 of bells or spigots are permissible.

February 7, 1973 out that had the Bureau intended to of air holes in the specifications is limit application of the Concrete unnecessary and redundant if the Manual to the method of repair it provisions of the Manual as to what would have referred only to Subsec- type of defect can be repaired are tion (b) entitled “Methods of Re- incorporated into the contracts as pair" of Section 137.39 The Govern- contended by Cen-Vi-Ro. We have ment's answer to this contention is examined Section 137 of the Sixth that the reference in the contracts Edition of the Concrete Manual and to the Concrete Manual is to "proce- find nothing which specifically dedures" and that procedures and scribes a method for repair of air methods are synonymous. We find holes. ^1 Accordingly, we think it evilittle merit in this argument since dent that the reference to air holes 42 Section 137 of Chapter VII of the in Specifications DC-6000 was to esConcrete Manual is entitled “Proce- tablish a simplified method for their dure for Repair of Precast Concrete repair and to remove any doubts Pipe” and it is highly probable that that the elaborate provisions of the this explains the reference to proce- Manual as to preparations for redures in the contracts. While it is pair (removal of unsound concrete, true that the dictionary affords sup- sand blasting, scrubbing) and cure port for the Government's position, (repairs at joints to be cured under it is well settled that the dictionary wet burlap for seven days) are inis not the sole or final source of in- applicable. Viewed thusly, the speciquiry as to the meaning of a contrac- fication method for the repair of air tual provision."

holes is at variance with the methods The Government's principal con- of repair in the Manual and the sentention is that the reference to repair tence following that all other re

pairs shall be made in accordance to withstand the same or greater head and with the Manual is eminently loading requirements. Repairs in concrete pipe, when allowed, shall be made in accord- logical. ance with the provisions of Chapter VII Another very important conthe Seventh Edition of the Bureau of Recla.

sideration is the conduct of the parmation Concrete Manual." While it might be argued that “when allowed” refers to the Concrete Manual as well as the specifications, 41 Section 141 of the Seventh Edition conthe term does not appear to serve any useful

a provision describing a permissible purpose under such a construction. It is, of method for the repair of air holes which course, clear that this provision contemplates is identical to that quoted above from the repairs to pipes in addition to air holes. No specifications. comparable provision appears in Specifications 12 We recognize that the provisions of Sub. DC-6000.

paragraph 67.h.(4) (g), DC-6000 (77.h. (4) (g), 39 Page 4 of Notice of Appeal, dated May 3, DC-6130), providing that “The surfaces of 1968, Exh. 6.

bell and spigot in contact with the gasket and 40 Paschen Contractors, Inc. v. United States, adjacent surfaces that may come in contact 190 Ct. Ci. 177 (1969). Cf. United States v. with the gasket within a joint movement Lennox Metal Mjg. Co., 225 F.2d 302 (2d Cir., range of three-fourths inch, shall be free of 1955) (word “may” in partial payments clause airholes, * * * or other defects, except that did not confer unfettered discretion on con- individual air holes may be repaired tracting officer making payments

implies that no other repairs to gasket areas contractor).

40

tains

in

to

ties prior to any dispute.43 First and specifications at least in part, conforemost, the May 13 letter from

ceded that it was his intent that the project engineer stated that the repairs were to be permitted in acspecifications, by reference to the cordance with the Concrete ManConcrete Manual, prohibited re- ual.46 In view of this evidence, we pairs to concrete pipe when the find that the testimony of the chief imperfections were the result of plant inspector, the resident engicontinuing failure of the con- neer, and the project engineer that tractor to eliminate causes of im- the Concrete Manual was only a perfections or damage.44 That this guide (Tr. 1485, 1955–1956, 2084) was also the view of the contract- does not accurately depict the pracing officer is established by his tice of the parties. telegram of May 12, 1965, to the We find therefore that the conproject engineer (furnished in re- tracts contemplated that repairs in sponse to the Board's call of August accordance with the Concrete Man18, 1971), which resulted in the May ual were permissible. Remaining to 13 letter. Secondly, contemporane- be determined is the effect of this ous documents clearly reflect that finding. The Government asserts prior to the May 13 letter the par- that even if the Concrete Manual is ties operated on the premise that elevated to the status of a contracwhether repairs to specific pipes tual document, the Manual permits were permissible was governed by the repair of only occasional imperthe Concrete Manual.45 Thirdly, fections and damage. However, ap

, Messrs. Franklin, Herrera and pellant points out (Brief, pp. 6 and Murray all testified that the Con- 7) and we think correctly, that the crete Manual was used as the basis Government's emphasis on the word for determining what pipes could be "occasional" results from an inacrepaired (Tr. 435, 753, 883). Fourth- curate reading of the Manual. The ly, Mr. Rippon, who wrote the fact is that the Manual provides : 43 It is, of course, well settled that

Most imperfections in and damage to interpretation placed upon a contract provi- precast concrete pipe, * * *, can be resion by the parties is entitled to great weight

paired and the pipe made acceptable. in determining its meaning. Hydromatics, Inc., ASBCA No. 12137 (October 20, 1969), 69–2 The clause “such as inadvertent or BCA par. 7962; Compec (a Joint Venture), IBCA-573-6-66 (January 4, 1968), 75 I.D. 1,

occasional imperfections or damage 68-1 BCA par. 6776 and cases cited.

that occurs during normal opera44 Appellant points out that this quotation

tions" which we have omitted from is inaccurate inasmuch as it eliminated the phrase "known corrective action."

the quoted sentence is in our view 45 See Inspectors Daily Reports, dated Janu

merely illustrative and not restricary 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, 48 Tr. 1771, 1772. See also statement of Mr. April 6, 16 and 23, 1965 (App's Exh. E; Exh. Ryland at the meeting of July 24, 1965, to 121). In addition, see the reference to "known the effect that repairs as outlined in the corrective action' in the assistant project engi- Concrete Manual were to be permitted on only neer's memorandum, dated February 18, 1965 occasional imperfect pipe (p. 5, Notes on Meet(Exh. 15).

ing, Exh. 24).

he

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