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The Board finds that unconsoli- dated May 27, 1965, note 27, supra). dated areas on the great majority An additional 404 pipes were of pipes rejected for gyro area con- marked for special hydrostatic tests crete did not extend through the of which approximately 267 were pipe wall. We further find that the for bad gyro areas. Of these 404 Bureau did, in fact, restrict repairs pipes, 102 had been previously acto gyro area concrete, which was cepted (tabulation enclosed with normally repairable as rock pock- Special Report, dated May 21, 1965, ets in accordance with the Concrete note 21, supra). The tabulation conManual.93 We find that unconsoli
tains headings reflecting that the dated areas
an undetermined 404 pipes required special hydronumber of pipes with gyro area con- tests to determine acceptability.94 crete were so substantial as to jus. An explanatory note states that tify their rejection notwithstanding almost all of the 102 previously acthat the Concrete Manual does not cepted pipes were marked for speplace any size or depth limits on the cial hydro because of gyro ring repair of rock pockets.
areas. The Board finds that this refTen pipes manufactured on the erence is to 94 of the previously ac20-foot spinner were rejected for cepted pipes which were manufacrock pockets prior to the May 15 tured on the 20-foot spinner. Prima inventory (Exh. 59). It appears facie these 94 pipes complied with that approximately 19 pipes were contract requirements. A total of rejected outright for bad gyro areas 102 pipes previously rejected for during the May 15 inventory (tab
gyro area concrete were accepted ulation attached to memorandum, during the reclaim program (Sum
mary of Pipe Units Reclaimed, 23 Note 83, 8upra. Although the Bureau agreed to consider allowing the repair of Exh. 116). “minor gyro ring areas" after, as well as The Summary purportedly repbefore, hydrostatic testing (Inspectors Daily Report, dated July 9, 1965 ; memorandum of resents the disposition of all pipes Bureau Meeting, dated July 9, 1965, Cen-Vi-Ro
rejected during the May 15 invenCorrespondence), there is no evidence that any significant repairs to gyro ring areas tory which were subsequently acwere ever allowed after May of 1965. It is
cepted.95 Although we have found clear that Bureau representatives from Denver did not favor any repair to gyro areas (Inspectors Daily Report of July 22, 1965). The chief 94 This supports Cen-V1-Ro's contention that plant inspector's memorandum of March 31, some pipes were neither accepted nor rejected, 1966 (note 29, supra), did allow leakage at but were placed in limbo and that contrary to gyro ring areas on hydrostatic tests to be the contract, the Bureau substituted hydrocured if it could be accomplished by repair static tests as determinative of acceptability of a “small area." There is no evidence of (Notice of Appeal, p. 29; Tr. 350). We note, the area regarded as "small" or the number however, that Dr. Davis apparently considered of such pipes. We note that a Reject Certifica- the acceptability of at least one pipe with tion (note 88, 811pra) states that one pipe gyro area concrete to be sufficiently doubtful (72A25X20, No. 50, mfg. 3–11-66) leaked on as to require the issue to be determined by hydrostatic test, was repaired, passed the test a hydrostatic test. and accepted. There is evidence and we find 85 Tr. 2135 ; “Disposition of Pipes Initially that gyro areas in excess of one square-foot Rejected in the May 15, 1965 Inventory," were considered not repairable by the Bureau App's Exh. C. This summary was originally (Photo 5208, p. 101, Vol. II, and photo 3622, included in the appeal file as Exhibit 92. It p. 15, Vol. IV, Exh. 40).
was among the documents expunged on appelcongestion of the test stands. We are also maining 93 previously accepted influenced by the fact that substantial repairs
February 7, 1973
that pipes marked for special hydro were marked for special hydro durin the May 15 inventory were not ing the May 15 inventory.96 listed as rejects in the tabulations There were a total of 229 final resulting from that inventory (note rejects for unconsolidated gyro area
g 28, supra), it is obvious that at least concrete, exclusive of any rejects for 83 pipes marked for special hydro this reason in 175 pipes which were because of gyro areas were listed as disposed of prior to June 20, 1966.97 reclaims of prior rejects. Since 267 Forty-two of the final rejects for pipes, including 94 previously ac- gyro areas were manufactured subcepted pipes, were marked for spe- sequent to May 15, 1965. It might be cial hydro because of gyro areas supposed that the number of rejecduring the May 15 inventory, it is tions for structural reasons notwithpossible that many of the previ- standing that the pipes passed hyously accepted pipes were not in- drostatic tests (note 81, supra) is 44 cluded in the 102 gyro area reclaims. (the difference between the 229 final We note that one pipe (66AB50X- rejects for
rejects for unconsolidated gyro 20, No. 2N, mfg. 4/5/65) contains areas and 185, the number indicated a notation that the “AOK” was re- as failing special hydros) (Exh. moved for special hydro and that 64). However, the number rejected the caption under the photo states for this reason is almost certainly it leaked at the spigot gyro ring substantially less, since we find only area when tested on May 26, 1965
* An inference is a logical deduction or (p. 2, Vol. I, Exh. 40). This pipe is conclusion from an established fact. 21 Words included in the Final Inventory of
and Phrases, Inference. It is recognized that
the fact that the majority of these reclaim Rejected Pipe (Exh. 152, p. 32). It pipes were accepted during the period Feb
ruary through May 1966 (Exh. 146), could is probable that this is one of the
lead to an inference that most of these pipes previously accepted pipes which was were repaired. However, such an inference is
not supported by the chief plant inspector's marked for special hydro during
memorandum of March 31, 1966 (note 29, the May 15 inventory. There is no supra). In addition, we think this delay in
acceptance could be explained as by other evidence that any of the re
to gyro areas were not allowed after May 13, pipes were included in final rejects for gyro areas. Under the circum- 07 Exh. 5Q. Although the numbers of final
rejects for various reasons are stated in absostances, we infer that the 102 re
lute terms, our examination of the "Final claims of pipes evidencing gyro
Inventory of Rejected Pipe" (Exh. 152) indi
cates that quite frequently more than one area concrete included 93 of the
was given for rejection. We count a previously accepted pipes which total of 215 rejects for unconsolidated gyro
areas in this inventory based on the more or
less arbitrary assumption that where multiple lant's motion (note 2, supra) and was offered reasons for rejection are given, the first repreat the hearing by appellant and accepted in sents the primary reason for rejection. Eightyevidence without objection from the Govern: one of these pipes are indicated to have failed ment (Tr. 480).
eight pipes rejected for gyro areas sistency of the concrete as diswhich are indicated to have passed charged from the mixer (Subpar. hydrostatic tests in the Final In- 67.e.(1)), but no requirement for ventory of Rejected Pipe (Exh. uniformity of concrete in the pipe. 152) (which by our count contains Indeed, Dr. Davis testified that con1,711 pipes). Only one of these re- crete was such a heterogenous majected pipes (72A25X20, No. 6N, terial that you could not make a mfg. 11-10-65) was produced sub- 6 x 12-inch cylinder which was unisequent to July 1965.98
form throughout with the greatest Cen-Vi-Ro asserts that this reason of skill (Deposition, p. 58). for rejection is specious and was ad- As we have seen, Mr. Peckworth vanced so belatedly (it appears to was of the opinion that gyro area have been clearly articulated for the concrete did not afford a reasonable first time in the project engineer's basis for questioning the soundness letter of May 31, 1966, note 81, of the pipe.100 Dr. Davis was also of supra) that Cen-Vi-Ro was unable the opinion that gyro area concrete to refute it.99 Mr. Lincoln testified would not appreciably affect the that the reason pipes with
ability of the pipe to carry an exterconcrete were rejected even though nal load produced by backfill (Dethe pipes passed hydrostatic tests position, p. 11). However, when was the requirement of the speci- asked, Mr. Peckworth quickly disfications that concrete be uniform claimed any assumption that gyro throughout the pipe (Tr. 1948). area concrete was as strong as con
We find a requirement for uni- crete in the remainder of the pipe formity in the composition and con- and Dr. Davis had no doubt that at
least some gyro area concrete was 09 Page 43, Final Inventory of Rejected Pipe, Exh. 152. A photo of this pipe indicates the weaker (Tr. 103; Deposition p. that it was rejected for an unapproved repair
11). There is no evidence that Cenon April 18, 1966, notwithstanding that it passed the hydrostatic test (pp. 23, 113, Vol. Vi-Ro experienced any difficulty II, Exh. 40). It appears that the unapproved
in complying with compressive repair exceeded one square foot in area.
29 There can be no doubt that the rejection strength requirements which were of pipes with gyro area concrete notwithstand
determined by tests on cylinders ing the pipes passed the hydrostatic test represented a change in the Bureau's position. At made from the concrete used in pipe a meeting on May 26, 1965, Cen-Vi-Ro repre
manufacture in accordance with sentatives were advised that the 404 pipes marked for special hydro during the May 15 inventory (of which we have found approxi- 100 Tr. 102, 103. He asserted that if there mately 267 were for gyro areas) would be was any real question of structural compeaccepted if the pipes passed the hydrostatic tence, it would be a simple matter to take test (memorandum, dated May 27, 1965, note a core sample and test it. While the Bureau 27, supra; Tr. 1708, Travel Report of R. C. took core samples of gyro areas (core photo F, Borden, dated June 9, 1965, Exh. 23). Mr. attached to Statement of Position, IBCA-718Thomas is quoted as saying that if pipes 5-68; Inspectors Daily Report, dated Novempassed the hydrostatic test, the Bureau had ber 8 and 11, 1965), there is no evidence no basis for rejection for lack of consolidation of compressive strength tests on these sam(p. 10. Notes on Meeting of July 24, 1965. ples. Mr. Lincoln denied knowledge of any note 46, supra). This position would seem to such tests (Tr. 1948, 1949). Apparently the be implicit in paragraph 5 of the resident Bureau would not have regarded such tests engineer's memorandum of May 24, 1965.
as representative (Tr. 1104, 1406).
February 7, 1973 Subparagraph 67.e.(1) and (4) of the imperfections or damage are the the specifications. The project engi- result of a continuing failure to take neer testified that the p.s.i. of Cen- known corrective action to eliminate Vi-Ro pipe was always excellent the cause of the imperfections or (Tr. 2079). There is no evidence damage.” We must analyze the recthat any of these pipes were struc- ord in terms of the causes of gyro turally weak and did not comply area concrete and the number of with the compressive strength re- such defects. The Government furquirements of the specifications. The ther asserts that if the contractor record will not support a finding ultimately finds or discovers corthat any pipes with gyro area con- rective measures to eliminate a parcrete which passed hydrostatic tests ticular defect there is a known corwould not support the weight of the rective action for that particular backfill with superimposed loads. defect.102 The immediate problem
Dr. Davis testified that the hydro. with the Government's position is static test tends to show the tensile that the quoted sentence would have strength of the pipe (Deposition, the same meaning if the word p. 64). There is an implication (let- "known” were eliminated thereter of May 31, 1966, note 81, supra), from. We are not at liberty to read but no persuasive evidence, that un
the word "known" out of the consolidated areas on these pipes ex- Manual. tended into or beyond reinforcing It is also apparent that the Govsteel when chipped out for repair. ernment's reading of the Manual
The Government asserts that even gives little or no meaning to the if defects such as unconsolidated words "continuing failure.” The gyro area concrete are normally re- language "continuing failure to take pairable in accordance with the known corrective action” could be Concrete Manual, Cen-Vi-Ro failed construed as implying a willful failto take known corrective action and ure to take reasonable corrective thus the Bureau's restrictions on measures. There is evidence that the otherwise allowable repairs were Bureau construed the quoted phrase fully justified. The Government's as justifying the refusal to permit position is based on the provision repair where the defects are atof the Concrete Manual: "But re- tributable to the contractor's lack of pairs should not be permitted when
102 Brief, p. 108. For this assertion it relies 101 The record reveals that
principally on the testimony of Mr. Peckpipe (66A75 No. 11N, mfg. 4/19/65), the un- worth (Tr. 291). We do not find his testiconsolidated area extended into and beyond mony as clear cut as the Government would reinforcing steel to a depth in excess of two have us believe since he answered in the inches after being chipped (photos 3704, 8705, negative when asked if there was a known Vol. I. p. 56, Exh. 40). This photo supports corrective action for every type of concrete our finding (note 93, supra) that gyro areas pipe problem and his affirmative answer was in excess of one square foot were considered in response to a question that did not contain pot repairable.
the word "known."
quality control.103 However, we find ing problem and a possible need for that a reasonable 'interpretation vibration isolation (Tr. 613). He would permit the rejection of other- testified that vibrators were added wise repairable pipes if the defects to the 20-foot spinner and vibrators are shown to be attributable to the were moved in an effort to
with contractor's continued or prolonged the gyro ring problem (Tr. 615). failure to implement measures However, it appears that some of which it knows or as a reasonably the experimentation with the vibraskilled contractor should know will tors was in an effort to solve other overcome the particular defect.104 defects. 105
There is general agreement and any event, Cen-Vi-Ro operated Cen-Vi-Ro admits that the gyro for the period January 21 to July 8, ring phenomena was attributable to 1965, with the two vibrators adjaa dampening of vibration at points cent to the gyro rings (there were where the gyro rings encircled the six vibrators on the 20-foot spinner) forms in which the pipes were pro- inactivated.
inactivated.106 Mr. Lincoln testified duced (Tr. 223, 224, 468, 469, 1130, that extra-large heavy-duty vibra1854, 1855; Notice of Appeal, pp. tors were installed adjacent to the 14, 15). Mr. Franklin admitted that
gyro rings on November 18, 1965, increasing vibration was one of the and that gyro area concrete was not things you think about and do to
a significant problem thereafter eliminate rock pockets in concrete (Tr. 1861). However, there is no pipe (Tr. 629). He asserted that the evidence that pipes with gyro area dampening of vibration as the cause concrete were manufactured in sigof gyro area concrete was discov- nificant quantities after July of ered sometime during the period 1965 (Exh. 5Q), and Mr. Franklin January through June of 1965 (Tr.
105 For example, fallouts were, at one time 469, 613). He also admitted that
attributed to excessive vibration being trans
mitted to the form through the gyro rings from the inception of production he
(Inspectors Daily Reports, dated June 8 and 9, considered there could be a dampen- 1964). See also Inspectors Daily Report, dated
July 14, 1964, which indicates fallouts were 103 Mr. Ryland of the Bureau's Denyer office then attributed to rubber cushions at the gyro is quoted as saying that the Bureau did not
rings absorbing vibration and states that intend to allow repair of major defects which these cushions were being removed. were the result of lack of quality control 108 Tr. 1863, 1864; An Inspectors Daily Re. (p. 5, Notes on Meeting, note 46, supra). Cf. port, dated January 21, 1965, states Cen-Vi-RO Paragraph 13 of the Bureau's Standard Speci
was using four rather than six vibrators on fications for Reinforced Concrete Pressure
66-inch pipe. The report indicates that failure Pipe (App's Exh. Q) which expressly em- to use these vibrators was the probable cause powers the contracting oilcer to suspend the of unconsolidated concrete in gyro areas. Mr. acceptance of repaired pipes if proper quality Lincoln testified that pipes with gyro area control procedures are not being maintained. concrete seemed more numerous during this 104. What evidence there is of the Bureau's
period. The Bureau's figures indicate that final interpretation of the phrase prior to the May
rejects for gyro area concrete totaled nine or 13 letter indicates that threats to reject pipes approximately 0.9% of pipe production in for failure to take known corrective action December 1964, nine or approximately 0.6% were made only when the Bureau considered in January 1965, 12, 14 and 15 or slightly in the remedy to be clear (Inspectors Daily Re- excess of 1% during the months February port, dated January 1, 1965; memorandum, through April, respectively, two or approxidated February 18, 1965, note 45, supra). mately 0.2% in May, eight or approximately