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February 7, 1973 tive of the frequency of repairs.47 prepared by the Government and Our view is strengthened by the fact the Table of Comparison Between that the Manual lists nine types of Bureau's Letter of May 13, 1965, defects which can normally be re- and the Concrete Manual (Exh. 6 paired (only four which normally of Notice of Appeal), prepared by cannot be repaired) and by the next Cen-Vi-Ro. However, it should be sentence which does constitute a re- emphasized that Mr. Rippon testistriction on the frequency of re- fied that the Bureau's decision to pairs :

limit repairs to the pipe was emBut repairs should not be permitted

bodied in the May 13 letter (Tr. when the imperfections or damage are 1752). It would seem anomalous inthe result of continuing failure to take deed that the Bureau considered it known corrective action to eliminate the

necessary to instruct its representacause of the imperfections or damage.

tives in the field to limit repairs not We must determine whether the authorized by the contract. May 13 letter or Bureau practice 48 The task of comparing the prodiffered from the Concrete Manual

visions of the Concrete Manual and as to the extent of permissable re

the May 13 letter is complicated by pairs and if so, whether the imper- the fact that the terminology used fections were the result of Cen-Vi

differs. Nevertheless, we proceed Ro's continuing failure to take

with our comparison: known corrective action. The con

Concrete Manual trasting views of the parties on the May 13 letter:

Allows Repair of: first of these questions are illus

1. Pipes with large (1) Rock pockets and

fallouts will be (2) exposed steel on trated by the Comparison of Pipe

jected and only pipes the outside of any size Acceptance Guidelines (Exh. 116)

with fallouts of one pipe and on the inside square foot or less are of pipe 36 inches or

acceptable for repair. larger in diameter 43 47 If it was intended otherwise the sentence 2. All pipe with scal. Not covered. 60 could easily have been modified to make the ing or loose and weak intention clear, e.g., "Inadvertent or

interior surfaces will sional imperfections or damage that occur dur- be rejected. ing normal operations can be repaired and the pipe made acceptable.” Cf. The language con- 49 The Government asserts that the Concerning repairs in ASTM Standard Specifica- crete Manual is permissive as to what may tions for Concrete Sewer, Storm Drain, and be repaired and if no size limitations are Culvert Pipe (C14) and ASTM Tentative specified the contracting officer is free to Specifications for Reinforced Concrete Culvert, impose such limitations (Brief, p. 111). CenStorm Drain, and Sewer Pipe (C76), con- Vi-Ro argues that where limitations on the tained in Appendix of Concrete Pipe Hand- sizes of repairable defects were intended, the book (Exh. 102), which clearly contemplate Manual supplies them and that if none are repairs made necessary by occasional imper- specified for a particular defect no size limitafections in manufacture or accidental injury tions were intended (Appendix I to Claims on in handling. See also the language in the Bu- DC-6000, Exh. 5N, pp. 2 & 3; Notice of reau's Standard Specifications for RCP Pipe, Appeal, p. 22). We think Cen-Vi-Ro has the dated February 1, 1969 (App's Exh. Q), which better of this argument. leaves no doubt repairs are limited to occa- 50 Cen-Vi-Ro points to the provision in the sional imperfections or accidental damage. Manual under Section 137 (c), Preparation of

Inspectors Daily Report, dated Imperfections for Repair, calling for the reApril 30, 1965 (note 26, supra), and Tentative moval of all visibly unsound or imperfect Instructions to Concrete Pipe Inspectors dated concrete. However, we cannot equate this with May 7, 1965, furnished in response to the an express provision for the repair of pipes Board's call of August 18, 1971.

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Concrete Manual
May 13 letter:

Allows Repair of: 3. Pipes having im- (4) Broken bells conperfections

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dam- taining circumferen. aged areas that ex- tial reinforcement and tend over six inches of (5) impact damage gasket area in the bell

over less than 45° or four inches in the of circumference exspigot will be rejected. cept for spigots. (8)

Spalled shoulders on spigots for support of rubber gaskets. Repairs not permitted on gasketed spigots 11 break is entirely through shell into or beyond area of gasket bearing and extends more than 4 inches around circumference

under gasket. 4. Extensive repairs (1) Rock pockets-no

rock pockets in limitation on size. bells and lack of con. solidation of the con. crete that will result in poor bond between the concrete and the steel will not be permitted. 5. All pipe having (6) Fractures or transverse (circumfer- cracks passing ential cracks) that ex- through the shell. tend through the wall of pipe will be rejected. 6. Pipe cracked longi. (6) Fractures or tudinally for substan- cracks passing tially the full length through the shell.61 will be rejected. All pipe containing shorter longitudinal cracks must be hydrostatically tested.

From the above it is apparent that the limitation on the repair of

fallouts to those of one square foot or less was a restriction on repairs expressly permitted by the Concrete Manual as to pipes 36 inches or larger in diameter, that limitation of repairs to six inches in gasket area of bell was also such a restriction (only in case of impact damage to pipes below 18 inches in diameter-45° on an 18-inch diameter pipe would be approximately seven inches—would it not be restrictive of repairs permitted by the Manual), that the refusal to permit extensive repairs to rock pockets in bell areas may have been such a restriction and that the refusal to permit repair of at least some circumferential cracks 52 and of some longitudinal cracks were restrictions on repairs permitted by the Concrete Manual.

Notwithstanding the above findings we conclude that the language of the Concrete Manual cannot be interpreted as a mandatory requirement that the Government must allow repair of any and all of the listed defects without regard to magnitude and extent and that some room for the application of judgment as to whether particular defects may be repaired must be allowed.53

surfaces and consider this a procedure for the repair of pipes otherwise repairable, that is, pipes with the listed imperfections.

51 With respect to tests on repaired pipe, Cen-Vi-Ro points to paragraph (h) of Section 137 of the Concrete Manual which provides that each pipe on which major repairs have been effected be tested at the service head and for tests on occasional pipe having lesser repairs capable of affecting performance of the pipe to assure the security of such repairs. This paragraph also provides for tests on representative units of cracked but unshattered pipe and states that if there is no leakage, other than sweating at 50-foot head, the pipe may be accepted for heads of less than 50 foot.

69 The Tentative Instructions to Concrete Pipe Inspectors provided that pipes having circumferential cracks in the spigot of 12 inches or more would be rejected.

63 Cen-Vi-Ro appears to agree, for in its letter of June 10, 1965 (Exh. 5G), in reply to the Bureau's May 13 letter, Cen-Vi-Ro stated that the specifications allow repair of circumferential cracks but agrees that extensive circumferential cracks should not be allowed and that each section should be judged on its own merits. The same comments are made with respect to longitudinal cracks.

February 7, 1973 While the Manual does not ex- A summary prepared by Mr. pressly define major repair and Kenneth Thomas, chief plant invarying definitions of the term were spector, reflects that 25.6 percent of given at the hearing,54 it is clear all pipe units less rejects manufacthat under the Manual only repairs tured under DC-6000 required masuch as extend through the shell jor repairs (24.6 percent of pipes thickness or large repairs to bell are installed).57 The summary reflects major. Cen-Vi-Ro's expert wit- that 14.3 percent of total pipes less nesses, Mr. Howard F. Peckworth rejects manufactured under DCand Dr. Raymond E. Davis, al- 6130 required major repair (14 perthough recognizing that it depended cent of all pipes installed). These on the extent of the defect, charac- percentages are based in part on Mr. terized the list of nine normally re- Thomas' estimate from his observapairable defects in the Manual as tions, admitted to be a guess, that 50 being generally or usually minor re- percent of pipes produced prior to pair.55 The Government's expert May 15, 1965, required major rewitness, Mr. Walter R. McLean, pair.58 Percentages of pipes requirtestified that a major repair is any ing major repair produced after repair affecting structural integrity May 15 are based on Bureau recof the pipe.56 We accept this defini- ords. While we have no doubt of Mr. tion.

Thomas' sincerity, we cannot accept

this analysis as accurate. First, as to 54 The Bureau's concept of major repair is

pipes requiring major repairs which that all repairs other than those normally accomplished on the rollaway are major (Tr. were produced prior to May 15, 1411, 1412). Mr. Herrera was of the opinion

1965, it is admitted to be a guess. It that a major repair was anything requiring replacement of concrete and cure to make it part of the original pipe (Tr. 791).

57 Analysis of the State of Production Just 55 Tr. 104-108 ; Deposition of Dr. Davis, pp. Prior to Bureau's May 15 Inventory (Exh. 133, 13–15. Mr. Peckworth, whose qualifications as pp. 5 and 7). It appears that the definition of an expert in concrete pipe are clearly supported major repair used in compiling this exhibit is by the record and were conceded by the all repairs other than those normally accomGovernment (Tr. 132), described the late Dr. plished on the rollaway as part of regular Raymond E. Davis as "probably the most production procedure (note 54, supra). famous man in the world on concrete" (Tr.

68 Tr. 1413, 1414, 1599. The record reflects 118).

that Mr. Thomas responded at one point with 5A Tr. 2256. Mr. Borden, Bureau engineer, the 50 percent estimate to a question concerntestified that a patch of a chip or piece of ing pipe manufactured before May (15) which concrete on the outside of a pipe which fell was repaired after May (15) and at another off and which had no bearing on quality would point with the 50 percent estimate to a ques. not be a cause for concern (Tr. 1688, 1689). tion concerning pipe requiring repair which Yet under the Government's definition, this was in inventory or produced prior to May could and probably would be a major repair. (15) (Tr. 1413, 1414). While we assume that The resident engineer was of the opinion that the latter is intended, we note that Departa major repair was a repair to a large area ment counsel's supplemental brief of March 26, of the bell, repair of an extended length of 1971, refers to the estimate as being "of pipes the spigot groove or a repair to a fallout of in inventory prior to May 15 requiring repair." any consequence (Tr. 1925). We conclude The difference could be significant since it that the Government's witnesses have

appears that R. H. Fulton laid in excess of pudiated the concept of major repair which is 1,200 pipes prior to the suspension of laying based on where the repairs were accomplished operations in November of 1964 (par. 86, (note 54, supra).

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should be noted that the Govern- dence of the definition of major rement's own record indicates 251 pair utilized by Cen-Vi-Ro in mainpipes required major repair as of taining its records, we do not conOctober 17, 1964 (tabulation en- sider that the Cumulative Daily closed with memorandum, dated Oc- Pipe Record is necessarily indicatober 22, 1964, Exh. 8). Second, it is tive of all pipes requiring major rebased on a concept of major repair pair as of May 7, 1965. However, it, which is at variance with that we nevertheless, represents a record have adopted based on the Concrete maintained at the time which in our Manual and testimony of the Gov- view precludes acceptance of the esernment's own witnesses. Thirdly, timate that 50 percent of all pipe the Cumulative Daily Pipe Record produced prior to May 15, 1965, re(DC-6000) as of May 7, 1965, indi- quired major repairs. 60 cates that 10,526 pipes had been We will take up the question of manufactured of which 706 required Cen-Vi-Ro's alleged failure to take major repair. 59 Since there is no evi- known corrective action in conjunc

tion with Cen-Vi-Ro's claims for in50 Cumulative Daily Pipe Record for period

dividual changes. May 7 to 14, 1965 (App's Exh. 0). The Gov.

(Supplemental March 26, 1971, note 58, supra) that this

Small Diameter Criteria figure cannot be accepted because (1) it was copied from Cen-Vi-Ro's records (and pre

Cen-Vi-Ro contends that the Busumably represents an incorrect definition of major repair); (11) there is evidence

reau incorrectly interpreted the conwhether it represents pipes marked for repair or actually repaired and (ill) it does not in- tract as to internal pipe diameter clude thousands of faulty pipe in inventory tolerances thus contributing to the which were not inspected by the Bureau or

shutdown of laying operations and repaired by Cen-Vi-Ro prior to May 15, 1965. While there is no evidence of the definition

necessitating the payment of $100,of major repair utilized by Cen-Vi-Ro in keeping its records, we have rejected the concept

000 to its subcontractor, R. H. Fulof major repair utilized by the Bureau in ton, referred to previously (note 18, compiling Exhibit 133. We see no reason for regarding the figure 706 as anything other

supra). Cen-Vi-Ro further alleges than pipes marked for major repair anymore that the Bureau's enforcement of an than there is for regarding the figure 668

incorrect pipe diameter interpreta(App's Exh. 0) as anything other than pipes marked for special hydro as of May 14, 1965 tion resulted in machine operators (Tr. 1607). We refuse to believe that the Bureau copied figures into its records which

underfilling the forms and caused were completely devoid of meaning. Reason flaking interiors, a matter which (iii) advanced by counsel will not withstand

will be discussed in subsequent paraanalysis. Page 1 of Exhibit 133 reflects that 10.641 pipes had been manufactured under

graphs of this opinion. DC-6000 through May 7, 1965 (Tr. 1582

Appellant has stipulated that 1585), of which 612 had been rejected, 7,698 accepted, 664 marked for special hydro and small diameter pipes (as interpre1,667 were unclassified (that is tests not complete or not submitted to Bureau, etc.). Mr. Lincoln admitted that at this time only approx- 80 It is of interest that in the meeting of imately 700 pipes had not been inspected by July 24, 1965, Mr. Rippon is quoted as saying the Bureau (Tr. 1930). Accordingly, it is that it was not the intent of the specifications apparent that there could not be thousands to permit repair of 400 to 500 sections of pipe of pipes in inventory which had not been with these types of defects (p. 6, Notes on inspected by the Bureau.

Meeting, note 46, supra).

no

65

February 7, 1973 ted by the Bureau) were manufac- stated that corrective measures had tured in July, August and Septem- been initiated which had substanber 1961.61 However, because Cen- tially eliminated the problem of Vi-Ro at this time did not normally small diameters. Substitutions measure the internal diameter of the proposed by appellant (except for pipe prior to presenting it to the Bu- 40 units of 72-inch pipe for which reau 62 and because pipes were not appellant had not proposed to comalways presented for inspection as pensate for friction loss) were apmanufactured, the full extent of proved by the project engineer's small diameter pipes did not come letter of November 23, 1964 (Exh. to light until October 1964.63 5D), upon the understanding that

By letter, dated October 16, 1964 manufacturing procedures were be(Exh. 5B), the project engineer ap- ing corrected to eliminate overfillproved the substitution of 9,280 ing. However, the manufacture of lineal feet of undersized 54-inch some small diameter pipes continpipes for full size pipes provided ued 66 and by letter, dated January larger size pipes were substituted to 21, 1965 (Exh. 14), the project encompensate for excess friction loss. gineer expressed his concern and In a letter, dated October 30, 1964 suggested that appellant review its (Exh. 5C), appellant reported the manufacturing procedures to assure existence of 1,054 pipes totaling that pipes were manufactured in ac17,784 linear feet classified as small

cordance with the specifications. diameter and furnished a listing of proposed substitutions. The letter

64

the amount requested in the substitution pro

posal because some of those were marginal 61 Tr. 568. The record amply supports this and then we undoubtedly produced some pipe stipulation. The first instance of pipe rejected by the time that was requested ; after the time for small diameter appears in an Inspectors

was requested, it was excessive." Daily Report, dated July 29, 1964. A total of (Tr. 589.) 34 66-inch pipes are reported as undersize as 65 The corrective measures included milling of August 29, 1964 (Inspectors Daily Report, the forming rings at the ends of the pressure dated August 31, 1964).

roller, building up the roller in the center and #2 Tr. 587, 1899; memorandum, dated Sep- instructing machine operators not to overfill tember 20, 1966, Exh. 34. Mr. Franklin testi- the forms (Tr. 355, 356, 360-362 ; Inspectors fied that this was because Cen-Vi-Ro had Daily Report, dated October 3, 1964). always met their design “Q", i.e., required flow

61 Tr. 838, 839. It appears that during the in cubic feet per second (Tr. 354, 587).

five-month period November 1964 through * Tr. 352; memorandum, dated Septem- March 1965, only 158 additional small diamber 20, 1966, note 62, supra. However, an In

eter pipes were produced ( memorandum, dated spectors Daily Report dated September 29, September 20, 1966, note 62, supra). However, 1964, states that Cen-Vi-Ro was quite con- an Inspectors Daily Report, dated March 27, cerned about undersize pipes. A summary 1965, reflects that eight small diameter pipes attached to a memorandum, dated October 22,

had been manufactured on the preceding day. 1964 (Exh. 8) indicates that 1,045 pipes were

It is interesting to note that memoranda writclassified as small diameter as of October 17,

ten by Mr. Franklin to Raymond International,

Inc., as late as May 1, 1965, reflect concern 1964, of which 676 were 54-inch diameter.

over the production of small diameter pipe et When asked how many of the pipes would

and that during the meeting of July 24, 1965, have been small diameter even under Cen-Vi

Mr. Kiesel, Vice President of Raymond, indiRo's interpretation, Mr. Franklin replied that

cated that small diameters were one of the "I would say it would be a number. I know, I major problems facing Cen-Vi-Ro (p. 7, Notes feel reasonably sure that it would be equal to on Meeting, note 46, supra).

that it

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