79 February 7, 1973 which had concrete of a different color or texture at the points where the gyro rings encircled the forms in which the pipes were made (Tr. 98, 1847). As noted previously, the Bureau took the position that gyro area concrete was porous or unconsolidated and did not conform to Subparagraph 67. (c) of the specifications requiring freedom from defects such as blisters and drummy areas or other evidence of excessive segregation of aggregate (Tr. 1493, 1494, 1847, 1848). Mr. W. B. Murray testified that some of this concrete contained voids varying from an inch to an inch-and-a-half in depth (Tr. 861, 862, 906). However, he stated that the gyro area was not visible on "a lot of pipe" containing this type of concrete (Tr. 818) thus indicating that the gyro area did not extend through the pipe wall. Mr. M. J. Franklin and Mr. Mike Herrera, production manager for Cen-Vi-Ro after July 10, 1965, conceded that in some instances gyro area concrete did not conform to the specifications (Tr. 472, 741). When asked how he would classify gyro ring concrete as compared to concrete in the remainder of the pipe, Mr. Franklin answered, "Not as good." (Tr. 471). In accordance with the resident engineer's memorandum of May 24, 1965, many, if not most, of the pipes with gyro area concrete were sub Drummy concrete refers to voids in the pipe wall created by the entrapment of water which is subsequently absorbed or evaporates. It is detected by differences in sound created by striking the wall with a hammer or other instrument (Tr. 99, 858, 859). jected to hydrostatic tests, called "special hydros" because they were not required by the contract, as a condition of their acceptance.so Some of these pipes were rejected even after passing hydrostatic tests because the Bureau questioned the structural soundness of the pipe.81 Cen-Vi-Ro concedes that concrete in the gyro areas on some of the pipes was not as dense as that in the remainder of the pipe (Claim of October 13, 1966, Exh. 5M, p. C4). However, Cen-Vi-Ro contends that this concrete was of quality sufficient So An Inspectors Daily Report, dated July 20, 1964, states that Cen-Vi-Ro agreed to test enough pipe to assure the Bureau and themselves that gyro areas would not leak. Mr. Hubbard testified that Cen-Vi-Ro tested six sections of pipe having gyro area concrete, which at first exhibited minor dripping but were watertight within a few days (Tr. 1103, 1105, 1129, 1131, 1132). While the Bureau at one time appears to have agreed to this method of proving acceptability of otherwise doubtful pipes (memorandum dated February 18, 1965, note 45 supra; p. 9, Notes on Meeting of July 24, 1965, note 46, supra), it subsequently refused to rely upon such tests for determining the acceptability of various pipe having such defects or flaws (Tr. 1104, 1406, 1407). An Inspectors Daily Report, dated June 8, 1965 (Exh. 100) refers to three 72-inch pipes with seeps at gyro ring areas which were to be filled with water for seven days to ascertain if the seeps healed. The record does not show the results of these tests. Inspectors Daily Reports, dated July 8 and 9, 1964, reflect that two pipes apparently tested for gyro ring areas healed sufficiently for acceptance. Mr. Thomas testified that hydrostatic tests were conducted on pipes, including those with gyro areas, which still leaked after seven days (Tr. 1406, 1407). 81 Tr. 1493, 1494; letter from project engineer dated May 31, 1966, Exh. 5N, pp. 30–31. The letter describes gyro area concrete as "honeycomb, popcorn-type" of extremely questionable structural competence and states that where the uncompacted area was large the pipe has been rejected, even though it passed hydrostatic tests, in order to preclude the installation of structurally weak units in the line which might subsequently crack under the weight of the backfill with superimposed loads. to meet the requirements of the specifications. It denies that gyro area concrete was blistered, drummy or evidenced excessive segregation of aggregate and denies that the structural competence of the pipe was thereby endangered (Exh. 5M, p. C4; Appendix to Claims on DC6000, Exh. 5N, pp. 4, 5; Notice of Appeal, pp. 15-17). We note, however, that Cen-Vi-Ro refers to attempts to "eliminate all of the segregation of aggregate and drummy areas on the pipe surface at the gyro rings" (Exh. 5M, p. C10). In support of its contention that pipes with gyro area concrete were properly rejected, the Government points to the testimony of Mr. Peckworth who stated that if pipes leaked at gyro areas on hydrostatic tests, the concrete in such areas was unconsolidated (Tr. 225). It also relies upon the results of special hydrostatic tests which indicate that out of 291 pipes tested for gyro areas, 185 or approximately 64 percent failed (Hydrostatic Test Study, Exh. 64). Cen-Vi-Ro objected to testimony concerning test failures and by implication to the introduction of this Study in the absence of a clear definition of failure (Tr. 862, 863, 907, 908), asserting that many of the pipes classified as failures by the Bureau would have healed within a seven-day period.s2 82 The process by which concrete will heal or seal itself is referred to as "autogenous healing" (Tr. 94, 95; Concrete Pipe Handbook, p. 358 et seq., Exh. 102). The healing process requires the presence of moisture. Cen-Vi-Ro's position as to the validity of these test results will be covered in detail under the heading of "Testing Criteria." For reasons therein stated, we accept as prima facie valid the test results shown by the Government. Cen-Vi-Ro complains of the Bureau's refusal to permit pipes having gyro area concrete to be repaired prior to hydrostatic testing. It will be recalled that paragraph 5 of the resident engineer's memorandum of May 24, 1965, permitted the repair of drummy areas of poor consolidation similar to gyro areas prior to testing only if the drummy concrete could be removed by shallow excavation. A memorandum, dated May 22, 1967 (Exh. 89), written by Mr. Dess Chappelear, Bureau engineer in charge of pipe laying under DC6130, states that rock pockets or drummy areas were cause for rejection if the defective area exceeded one inch in depth. The record indicates that in general Bureau inspectors at the plant and in the field endeavored to apply the same criteria for rejection (Inspectors Daily Report, dated August 4, 1965). The Board finds that shallow excavation was defined as not exceeding one inch in depth. Although the specification (Subparagraph 67.g.) requires that pipes below 72 inches in diameter have a minimum of 34 of an inch of concrete cover over reinforcing steel (one inch for pipe of 72 inches and larger diameter), the Concrete Manual clearly contemplates the repair of defective concrete extending into or beyond rein February 7, 1973 forcing steel.83 There is no evidence of the number of pipes with drummy or unconsolidated areas which were within the Bureau's definition of "shallow excavation." It is, of course, reasonable to suppose that at least some of the pipes tested for gyro area concrete would have passed hydrostatic tests if repairs had been effected prior to conducting the tests. Indeed, it appears that the Bureau's concern that a superficial repair might conceal a serious structural weakness was the reason for refusing to permit substantial repairs prior to testing (note 81, supra). Understandably, there is no evidence of the number of failing pipes, which, if repaired, would have passed the test. However, in order to find merit in CenVi-Ro's complaint, it is necessary to find that gyro area concrete is normally repairable. The resident engineer's memorandum of May 24, 1965, clearly regards gyro concrete as similar to drummy areas. Mr. Chappelear's memorandum of May 22, 1967, indicates that he regarded drummy areas and rock pockets as similar if not identical. The Government's expert witness, Mr. Walter McLean, equated gyro areas with rock pock 83 Paragraph (b), Methods of Repair of Section 137 of the Manual at page 355, characterizes as shallow excavation exposed steel on the outside of any size pipe and on the inside of pipe 36 inches or larger in diameter and provides in part: "Pneumatically applied mortar should not be used where more than onehalf square foot of the area to be repaired extends back of reinforcement steel. Preshrunk concrete should be used for the repair of all other imperfections including areas where more than one-half square foot of the area extends back of reinforcement steel." ets (Tr. 2289, 2311). He testified that gyro areas on pipes which he observed were not completely unconsolidated. Mr. Murray, although denying that all gyro area concrete was sufficiently unconsolidated to constitute a rock pocket, testified that some unconsolidated gyro areas were very similar to rock pockets (Tr. 939). The resident engineer testified and questions of Government counsel indicate that gyro areas were regarded as rock pockets (Tr. 1129, 1850, 1851). The tabulation "Change of Inventory Status as of 5-16-65" attached to memorandum, dated May 27, 1965 (note 27, supra), includes very bad gyro areas under the heading of pipes rejected for rock pockets. The Board finds that gyro area concrete on an undetermined number of pipes was unconsolidated to some extent and thus constituted a defect within the meaning of Subparagraph 67. (c) of the specifications.85 We further find that these unconsolidated areas were similar or iden 84 Mr. McLean examined pipes in the yard at Cen-Vi-Ro's plant in Plainview, Texas, and in Hobbs, New Mexico, in May of 1970 (Tr. 2246). He found only one pipe he considered acceptable. The largest percentage of the pipes which he examined were 21 and 27 inches in diameter. The majority of the larger size pipes he examined had been moved from Cen-Vi-Ro's plant. He left no doubt that he did not favor any repairs to concrete pressure pipe (Tr. 22462252, 2257, 2258, 2268, 2326). Since the standards invoked by Mr. McLean are not consistent with the contract before us, we find his testimony in this regard to be unpersuasive. 85 We note that the final sentence of Subparagraph 67.e. (3) of the specifications provides with respect to spun pipe: "The duration and speed of spinning shall be sufficient to completely distribute and thoroughly consolidate the concrete and produce an even interior surface." (Italics supplied.) tical to rock pockets and thus normally repairable in accordance with the Concrete Manual.86 It follows that to the extent hydrostatic test failures are attributable to the Bureau's unjustified refusal to allow permissible repairs, the test results may not be accepted as indicative of substandard pipe. Mr. Peckworth, who examined who examined every third row of an estimated 2,000 pipes remaining in the yard at Cen-Vi-Ro's plant at Plainview, Texas, on January 16 and 17, 1967,87 testified that concrete in gyro areas of pipes which he examined was not drummy or blistered and did not evidence excessive segregation of aggregate (Tr. 98-103). He was of the opinion that the gyro areas did not extend through the pipe wall and that the existence of such concrete did not afford a reasonable basis for questioning the structural soundness of the pipe. He stated that his observations gave him a "good, fair example (sic) of pipe in the yard" (Tr. 41, 42). See also Tr. 148-150. He estimated that 50 per 86 Photos Y and AA attached to the Government's statement of position as well as other documents prepared by the Government, e.g., Exhs. 146 and 5Q, characterize gyro area concrete as unconsolidated. on 87 Tr. 40. There were a total of 1,670 rejected large diameter pipes (54 inches and above) in the yard on June 20, 1966, and 1,078 small diameter pipes (18 through 27 inches in diameter) which were rejected under DC-6130 in July of 1966 (Comparison of Rejected Pipe Remaining in Pipe Yard June 20, 1966, Exh. 5Q; Comparison of Rejected Pipe Remaining in Pipe Yard July 1966 to Total Production, Exh. 81Q). The record does not indicate how many, if any, of these pipes had been removed at the time of Mr. Peckworth's visit. There were an additional 86 apparently acceptable but surplus pipe in the yard in December of 1966 (Exh. 37). cent of the rejected pipe in the yard should have been accepted or repaired under the specifications (Tr. 114). He testified that his examination and determinations were made in the light of the specifications and the Concrete Manual. We assume that "repaired" means acceptable with repairs in accordance with the Concrete Manual. Mr. Peckworth asserted that the only report made to Cen-Vi-Ro was *** that it was a pretty tough project" (Tr. 152). Although we respect Mr. Peckworth's expertise in the field of concrete pipe, we find his testimony as to the number of acceptable pipes or which could be made so to be lacking in specificity and too general to be of substantial probative value. We think that as a minimum Cen-Vi-Ro had an obligation to identify pipes which it considered were improperly rejected.88 88 We think there is merit in the Government's assertion (Brief, p. 133) that Cen-ViRo has largely eschewed identification of particular pipes which it considers were improperly rejected. For example, Mr. Murray testified that after May 13, 1965, he took photographs of pipes that were in dispute (Tr. 913); yet, no proffer of any such photographs was made at the hearing. Further, Reject Certifications, slips signed by representatives of the Bureau and Cen-Vi-Ro (Exh. 121), which identify particular pipes, state the Bureau's reasons for rejection and Cen-Vi-Ro's comments thereon, were largely discontinued after June of 1965 (Tr. 623), even though it would seem that these slips were a ready means of documenting the Bureau's alleged improper inspection practices. Our examination of the approximately 365 slips identifying particular pipes under DC-6000 indicates that in the great majority of instances Cen-Vi-Ro's representatives agreed with the action taken and that disagreement was over whether a leaking pipe would heal or whether a defective or damaged pipe was repairable. We note that a few of the slips are dated in early April 1966. We also note that 131 of the reject slips are dated May 4, 1965, and listed as CVR rejects. February 7, 1973 There is also a question of Cen-ViRo's capability and willingness to satisfactorily repair pipes, assuming the pipes were repairable in accordance with the Manual.89 Dr. Raymond E. Davis examined a total of 226 pipes selected randomly which remained in the yard at Cen-Vi-Ro's plant in Plainview, Texas, during the period March 2025, 1967.90 The record does not indicate the number of pipes in the yard at this time. Dr. Davis supported Mr. Peckworth's testimony that gyro area concrete was not drummy, blistered and did not evidence excessive segregation of aggregate (Deposition, pp. 9, 10). He testified that the existence of such concrete would not appreciably affect the ability of the pipe to withstand internal hydrostatic pressure or to withstand external loads produced by backfill (Deposition, p. 11). He characterized gyro area concrete as shown on a photo (photo Y, attached to Statement of Position, which the Government states is typical) as a very minor defect (Deposition, pp. 76, 77). He recognized, however, that the area at the surface was not completely consolidated and stated that if the area. was real or more "popcornlike" Mr. Franklin testified that the cost of repairs as compared with the cost of a new pipe and scheduling, i.e., the necessity for particular pipes in point of time, were all considered in determining whether to undertake repair (Tr. 545, 546). Deposition, pp. 3, 4. Dr. Davis testified that his examination and determinations were made after a study of the specifications and other documents bearing on the acceptance and rejection of pipe and in accordance with the specifications and concrete manuals (Id.). (photo AA, attached to Statement of Position), he would hydrotest the pipe or chip out the "popcorn" and replace it with a quality patch (Deposition, pp. 77, 78). We think it evident that Dr. Davis' conclusion that gyro area concrete was a very minor defect rested on the premise that the unconsolidated area was shallow and that the reinforcing steel was covered, for he indicated that if the "popcorn" area extended through the pipe wall, he would reject the pipe. He stated that the unconsolidated area would be worse or more pronounced on the outside of the pipe. Although he testified that he did not see any pipes where the unconsolidated area extended through the pipe wall, he considered that 17 of the 23 pipes he examined which were rejected for gyro area concrete were properly rejected.91 Dr. Davis considered that five of the remaining six pipes were acceptable as is or with some repairs and that one pipe with gyro area concrete should be hydrostatically tested.92 91 Deposition, p. 78; Summary of Prof. Davis' Comments on Pipe in Plainview, Texas, Exh. 2 of Deposition. The Government questions whether this exhibit is included in the record (Brief, p. 122). We think it obvious that a necessary concomitant of the admission of the Deposition (Tr. 395, 396) is the admission of any attached exhibits. 92 The validity of Dr. Davis' conclusions is weakened by the fact that only 58 of the 111 pipes he considered acceptable as is, or with some repairs, were identified in response to Government interrogatories (Exh. 124). The Government's reasons for the rejection of these pipes are set forth on a schedule (Exh. 154).' This schedule includes only two pipes rejected for gyro areas, of which one is indicated to have failed two hydrostatic tests (Final Inventory of Rejected Pipe, Exh. 152, p. 50), and the other is listed as a Cen-Vi-Ro reject. |