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The referenced correspondence mitting the matter to the Bureau in contains no hint of any disagree writing was that it did not occur to ment by Cen-Vi-Ro with the Bu- him that it would be expected (Tr. reau's interpretation of what con- 575). We note that at the conferstituted small diameter pipe. Other ence of October 30, 1964, Cen-Viactions of Cen-Vi-Ro personnel at Ro's representatives were asked to the time are also consistent with ac- comment on Government procedures ceptance of or acquiescence in the which they considered were delayBureau's interpretation of internal ing the work and that the reported pipe diameter requirements.67 While response was that they were cogniMr. Franklin testified and Mr. zant of no such procedures, either at Thomas confirmed that there were the work site or at the pipe manunumerous discussions concerning in- facturing plant (letter, dated Octerpretations of the specifications, tober 30, 1964, note 14, supra). The how pipes were to be measured, why only documented instance of Mr. small diameter pipes were produced Franklin's disagreement with the and how they could be eliminated, Bureau's interpretation occurred at Mr. Franklin admitted that he did the meeting of August 25, 1966 not object to the Bureau's interpre- (memorandum, dated September 20, tation at first, and was less than 1966, note 62, supra). positive as to any later disagreement Mr. W. B. Murray testified that with the Bureau's interpretation.68 in late January 1965 he protested Indeed, at one point he admitted verbally to Mr. Thomas and Mr. that it was pure speculation as to Lincoln the criteria applied by the what he said (Tr. 570). In later tes- Bureau in determining that pipes timony he asserted that Bureau rep- were small diameter (Tr. 837, 886, resentatives were told that their 887). He stated that the specificamethod of measuring the pipes was tion was reviewed word for word, incorrect (Tr. 571, 572). While he that a free-hand sketch of the Buindicated that these conversations reau's and Cen-Vi-Ro's interpretaoccurred in late October 1964, he tions was prepared and that Mr. subsequently stated that he did not Charles Davis, Bureau inspector, know the dates of these conversa- was present (Tr. 887–888). He did tions. His explanation for not sub- not have any explanation of why a February 7, 1973 cept pipes in accordance with a disagreement by Cen-Vi-Ro with sketch similar to that shown on page the Bureau's interpretation of inG6 of Exhibit 5M, which reflects ternal pipe diameter tolerances was Cen-Vi-Ro's interpretation, he an- not conveyed to the Bureau until swered, “Not to my recollection." late January 1965 at the earliest. (Tr. 1906). Under cross examina- Cen-Vi-Ro's request was distion, he admitted that Cen-Vi-Ro cussed with the Chief Engineer's had complained “far before” the Office in Denver by telephone on meeting of August 25, 1966, about
written protest was not made to the 67 An Inspectors Daily Report, dated October 8, 1964, states that Cen-Vi-Ro was check
Bureau. Mr. Lincoln stated flatly ing internal pipe diameters prior to Bureau that Cen-Vi-Ro's representatives inspection in order to avoid having patchers waste time on small diameter pipes. Inspectors
did not indicate any disagreement Daily Reports, dated October 9, 1964, and with the Bureau's interpretation of thereafter, reflect the acceptance as reclaims of pipes upon which the interiors had been small diameter pipe between June ground out to enlarge the bore.
and October 1964 (Tr. 1900). When es Tr. 353, 569, 1434. He stated "I feel sure that I expressed my opinion that the pipe * * * asked whether prior to March of probably would meet the measurement speci. fications on proper interpretation." (Tr. 569.) 1965 a request had been made to ac71 Tr. 1905, 1906, 2051. Mr. Thomas testified could be accepted in accordance
Viarch 8, 1965, and it was deterpipe sizes and that the only thing mined that the pipe could be acnew brought up at this meeting was cepted. Mr. Lincoln testified that the alleged relationship between Cen-Vi-Ro was notified of the apsmall diameters and flaking in- proval within a day or two thereteriors (Tr. 1943).
after.72 In earlier testimony, Mr. Mr. Thomas testified that he did Thomas referred to the date the Bunot believe Cen-Vi-Ro indicated any reau agreed to accept small diameter disagreement with the Bureau's in- pipe as about March 19, 1965 (Tr. terpretation of small diameter pipe 1318). This resulted in the acceptprior to March of 1965 (Tr. 1434). ance of pipes having a restricted He testified that during the first area double the first permissible week in March 1965, he had a con- overfill even though the restricted versation with Mr. Franklin con- area extended more than one-fourth cerning small diameter pipe under the length of the pipe (Tr. 1905). paragraph 67.j. of the specifica- There were no final rejects under tion.69 He stated that Mr. Franklin DC-6000 due to pipes being classihad made up a sketch showing vari- fied as small diameter by the Bureau ations in diameter compared to (Tr. 589, 590). The Government lengths of pipe and inquired if pipe
that if Cen-Vi-Ro had expressed disagreement with the sketch.70 He asserted that with the Bureau's interpretation at an earlier
date, he would have taken the matter up with even then it was not a question of his superiors and there would be memoranda whether the Bureau's interpreta
to that effect (Tr. 1434). However, the only
documentary evidence in the record of the tion was correct, but simply whether
Bureau's relaxation of pipe diameter tolerances pipe could be accepted in accord
is a memorandum signed by Mr. Lincoln, dated
September 20, 1966 (note 62, supra), which is ance with those tolerances (Tr.
long after the events in question. While the 1435). The Board finds that any
memorandum confirms the March 8, 1965, telephone conversation with the Chief Engineer's
Office, it does not state when Cen-V1-Ro was *A memorandum, dated February 8, 1965, notified of the decision to relax internal pipe signed by Mr. M. J. Franklin, refers on page 2 diameter tolerances. to recent trips to the project construction 72 However, Mr. Franklin, whose recollection engineer's office in which he requested relief was refreshed by reference to a Cen-V'i-Ro for installation of pipes with slightly smaller diary entry not in evidence, testified that hore (Cen-Vi-Ro Correspondents).
Cen-V'i-Ro was not notified of the relaxation of 70 Tr. 1434, 1435. The sketch was similar to internal pipe diameter tolerances until that shown on page G-6 of Exhibit JM (Tr. April 12, 1965 (Tr. 369-371). We accept this 1905), which is dated November 23, 1965. testimony as accurate.
states that the relaxation of pipe to 36 inches, inclusive; and 0.75 percent diameter tolerances was a waiver of
for 39-inch diameter and larger; Pro
vided, That in not more than 10 percent of strict compliance with the specifica
the pipe units of any one size to be intions and not an acknowledgment stalled in one continuous reach of pipe that the Bureau's interpretation line, up to two times the above listed perwas incorrect. Mr. Lincoln testified missible variations will be accepted if that the reason for the waiver was
such variation does not extend more than that Cen-Vi-Ro had improved its
one-fourth of the length of the pipe unit.
Within this distance the net area of the techniques so that small diameters
pipe opening shall not be reduced by more were being eliminated and the few
than 4 percent for pipe having internal that were being made were not a diameters of 12 to 36 inches, inclusive, or threat to the properties of the line more than 3 percent for pipe having in(Tr. 1907).
ternal diameters 39 inches and larger and
the transitions to the restricted area shall Mr. Murray testified that, when be gradual and smooth. he arrived at the plant in January Contentions of the parties con1965, the principal problem was con
cerning the proper interpretation sidered to be the production of
of this subparagraph are reflected small diameter pipe (Tr. 887). He
on the drawings (pp. G2 and G6 of stated that the project engineer's Exh. 5M; Exhs. 5P and 118). The letter of January 21, 1965 (Exh.
Government asserts that this langu11), increased the concern that Cen
age clearly means that any variaVi-Ro would be unable to substi
tion in permissible diameter in adtute small diameter pipe and made
dition to the original 0.75 percent it more imperative that pipe be pro
for pipe 39 inches in diameter or duced in accordance with the Bu
larger must not exceed one-fourth reau's interpretation of the specifi- the length of the pipe.
73 This was cations. He asserted that he insisted
the interpretation enforced by the that the operators not make small
Bureau until April of 1965 (note diameter pipe even though he dis
72, supra) and the interpretation agreed with the Bureau's interpre- adopted by the contracting officer. tation (Tr. 890–892).
Cen-Vi-Ro, on the other hand, Permissible variations in internal vigorously argues that the quoted diameter for the various pipe sizes paragraph can only mean that a are contained in Subparagraph 67.j. variation of two times 0.75 percent (1), Specifications DC-6000. This of the pipe diameter may extend for subparagraph provides in part: one-quarter the length of the pipe
and that in addition there shall be a j. Miscellaneous requirements. (1) Sizes and permissible variations
gradual and smooth transition to Variations of the internal diameter shall
the restricted one-fourth area. 14 not exceed plus or minus 1.50 percent for
73 Statement of Position, IBCA-718-3-69, pipe having an internal diameter of 12 to 24 inches, inclusive; 1 percent for pipe 27 74 Pages 5-S, Votice of Appeal, Exh. 6.
February 7, 1973
nal variation and all transitions to
the second variation. In addition, If "restricted area" in the phrase
Cen-Vi-Ro's position does not ap"and the transitions to the re
pear to recognize the opening stricted area” be read as referring phrase of the final sentence, “Withto an area one-fourth the length of
in this distance * * *,” which in our the pipe, there can be no doubt that
view can only refer to a distance of Cen-Vi-Ro's interpretation has
one-fourth the length of the pipe something to be said for it. The
and serves to eliminate doubts that language "does not extend more
transitions to any variation in addithan one-fourth of the length of the
tion to the 0.75 percent for pipes 39 pipe” would seem to warrant the
inches in diameter and larger must view that the maximum variation
be within one-fourth of the length can extend up to one-fourth the
of the pipe. It is, of course, well length of the pipe. However, if the
settled that an interpretation which transitions to the “restricted area":
gives effect to all terms of a contract must be within one-fourth the
is to be preferred to one which length of the pipe, the maximum
would nullify or render meaningpermissible variation cannot extend
less other terms of the contract. 76 for one-fourth the length of the pipe, but, of necessity must be some
Another reason why the Governwhat less.75 Nevertheless, to accept
ment's interpretation is to be pre
ferred is that in mid-October 1964 Cen-Vi-Ro's position would largely nullify the one-fourth of the length
when the magnitude of the small of the pipe limitation. This is so be
diameter problem was brought to its causo under Cen-Vi-Ro's inter
attention with the classification of pretation one-fourth of the length
1,045 pipes as undersize, Cen-Vi-Ro of the pipe operates as a restriction
took actions which are only consistonly on the maximum permissible
ent with acceptance or acquiescence variation and is inapplicable to all
in the Bureau's interpretation. lesser variations beyond the origi
First, it milled the forming rings at tober 30, 1964, requesting approval brought to the fore comes too late of substitutions of larger diameter to alter the result.T8 pipes in order to compensate for ex- Cen-Vi-Ro argues that the fact cess friction loss through installa- the Bureau to this day insists that tion of the small diameter pipes its view of the contract is the only without expressing any disagree and correct interpretation estabment with the Bureau's interpreta- lishes that a written protest would tion. The letter stated in part "cor- have been unavailing and that the rective measures have been initiated Bureau has not shown that it was which have substantially eliminated prejudiced by the absence of such the manufacturing of small diam- a protest. The doctrine of contemeters.” Although the letter is ex- poraneous construction is not deplainable by Mr. Franklin's testi- pendent on a showing of prejudice mony that the pipes upon which sub- but is instead founded on the prestitution were requested would have mise that the actions of the parties been small diameter even under Cen- prior to a dispute is the most persuaVi-Ro's interpretation (note 6+, sive evidence of the meaning to be supra), acceptance of this testimony accorded a contract provision which would largely negate the small might reasonably be susceptible to diameter claim. Mr. Franklin ad- differing interpretations. mitted that Cen-Vi-Ro did not For the reasons set forth above, object to the Bureau's interpretation we hold that the Bureau did not at first. The conclusion is inescap- misinterpret the contract to able that Cen-Vi-Ro found the Bu- permissible internal pipe diameter reau's interpretation sufficiently rea
the end of the pressure roller and 75 This is illustrated by the drawing (Exh.
built up the roller in the center in 5P) which the Government alleges represents order to increase the diameter of the the correct interpretation of the cited subparagraph. The effect of the Bureau's interpre- pipes and instructed the operators tation was to preclude Cen-Vi-Ro from taking
not to overfill the forms. Secondly, it advantage of the maximum permissible variation for one-fourth of the length of the pipe took measures to grind the interiors since Mr. Murray testified that it was impos
of pipes rejected for small diameter, sible with the straight line of the packer roller to have the roller riding on the end in order to enlarge the bore of the rings and still be able to obtain the maximum tolerance allowed by the specifications for a
pipes and gain their acceptance. 4. or 5-foot section in the center of the pipe
Thirdly, it wrote the letter of Oc(Tr. 888). Of course, this result is not peculiar to the Cen-Vi-Ro process, but is inherent in the view that transitions must be within one- 78 Hol-Gar Manufacturing Corp. v. United fourth the length of the pipe.
States, 169 Ct. Cl. 384 (1965), and cases cited. (Claim of October 13, 1966, Exh. 77 See cases note 43, supra. Or as stated by
tolerances and that even if Subsonable in the first instance that it
paragraph 67.j.(1) be regarded as did not take issue therewith. Under ambiguous and Cen-Vi-Ro's interthese circumstances, the doctrine of
pretation reasonable, Cen-Vi-Ro ac
cepted and acquiesced in the Bucontemporaneous construction is for
reau's interpretation. The appeal as application."? Even if Mr. Murray's to the criteria for determining small testimony that he protested the Bu
diameter pipes is denied. reau's interpretation in late January of 1965 is accepted, we hold that a
Drummy Concrete disagreement with the Bureau's in
Cen-Vi-Ro asserts that the Buterpretation first expressed over
reau improperly rejected many three months after the problem was
pipes for alleged drummy concrete
5m, p. (+). These were pipes manuparties have themselves placed on a contract factured on the 20-foot spinner provision ante litem motum should not be disturbed when at a later date, the meaning
(principally prior to May 15, 1965), of the provision is called into question by one of them." S. S. Silberblatt, Inc. 1. United 78 The Jordan Company, ASBCA No. 10874 States, 193 Ct. Cl. 269-319 at 278 (1970). (December 15, 1966), 66-2 BCA par. 6030.
the Court "* • * the construction that the