trary Cen-Vi-Ro has carried its burden of proof that these pipes conformed to contract requirements. In instances where the Government has overcome the effect of prior acceptance, the evidence has established nonconforming materials or workmanship.118 The evidence establishes that the "AOK" on a pipe manufactured on April 4, 1965, was removed and the pipe hydrostatically tested. This pipe is included in the final inventory of rejects. There is no evidence that any of the other 93 previously accepted pipes were included in final rejects for gyro areas. Accordingly, we conclude that these 93 pipes were improperly rejected in the May 15 inventory. Our finding that Cen-Vi-Ro failed to take corrective action to reduce or eliminate gyro area concrete prior to August 1, 1965, does not justify the rejection of conforming pipes. It follows that Cen-Vi-Ro is entitled to an equitable adjustment for the interim wrongful rejection of these 93 pipes. Cen-Vi-Ro's claim for the cost of conducting hydrostatic tests those pipes is considered infra under the heading of "Testing Criteria." on The foregoing findings make it necessary that we consider the propriety of the rejection of only one of the eight identified pipes which 118 A. J. Bumb, Administrator, IBCA-475-165 (June 30, 1965), 65-2 BCA par. 4944; W. L. Spruill and Company, ASBCA No. 14390 (June 12, 1971), 71-2 BCA par. 8930 and cases cited. Cf. Pams Products, ASBCA No. 15847 (March 31, 1972), 72-1 BCA par. 9401 (contractor entitled to equitable adjustment where Government failed to prove that work ordered corrected by contracting officer was nonconforming to contract requirements). passed hydrostatic tests. This is a 72-inch diameter pipe manufactured on November 10, 1965, which was rejected for an "unapproved repair" (note 98, supra). It appears that the repaired area exceeded one square foot. The propriety of this limitation is considered infra under the heading of "Fallouts." The evidence does not support the Government's stated reason for the rejection of pipes with gyro area concrete notwithstanding the pipes passed hydrostatic tests, that is, that the pipes were structurally weak. The evidence does support the conclusion that Cen-Vi-Ro had no difficulty complying with compressive strength requirements of the contract. We find that the rejection of this pipe was improper. The appeal as to "drummy concrete" is sustained as to disruption costs associated with the interim wrongful rejection of 93 pipes, as to one repaired 72-inch and three unrepaired pipes (two 72-inch and one 66-inch x 20-foot pipe which were improperly rejected) and is otherwise denied. The amount of the equitable adjustment will be determined in a subsequent portion of this opinion. Repair of Insignificant Air Holes Subparagraph 67.h. (4) (g) of the specification provides that "The surfaces of the bell and spigot in contact with the gasket, and adjacent surfaces that may come in contact with the gasket within a joint movement range of three-fourths inch, shall be free from air holes, chipped February 7, 1973 or spalled concrete, laitance or other defects, except that individual air holes may be repaired as provided in Subparagraph j.(2)." Cen-Vi-Ro asserts and Mr. Peckworth testified (Tr. 108) that all concrete has air holes. Cen-Vi-Ro contends that the quoted provisions, properly interpreted, requires only that air holes affecting the water tightness, serviceability or structural strength of the pipe be repaired (Exh. 5M, p. C5; Notice of Appeal, pp. 18, 19). Cen-Vi-Ro states that Bureau inspectors did not exercise any practical judgment and insisted that all air holes be pointed or filled because the specification did not limit the size of air holes to be repaired. CenVi-Ro alleges that in order to expedite production, it was forced to coat the entire bell gasket bearing surface with epoxy. In a letter dated November 8, 1965 (Exh. 5N, p. 34), Cen-Vi-Ro protested the requirement that all minor holes in the bells be filled with epoxy or other patching material and requested a ruling that small holes inherent in the spinning process were not of a size to cause joint leakage and thus were not defects requiring patching. The project engineer replied to Cen-Vi-Ro by letter dated December 6, 1965 (Exh. 5N. p. 21), stating that observations and experience have shown that some pipes could be accepted without repairs to the bell surfaces, but that the majority of the bells required minor work. The letter expressed agreement with Cen-ViRo's position that all bells did not require repair, stated that Cen-ViRo had informally been so advised on several occasions and asserted that the practice of coating the entire bell surface with epoxy was not a requirement of the Bureau, but a production expedient adopted by Cen-Vi-Ro. Mr. Thomas denied that the Bureau required the repair of small air holes in the gasket area (Tr. 1423). Mr. Herrera testified that Bureau inspectors required the repair of air holes a quarter of an inch or larger in diameter which he referred to as "bug holes" (Tr. 822). He considered that many of these repairs were unnecessary because a certain number of "bug holes" was normal in Cen-Vi-Ro pipe, and because it had been proved that the large rubber gasket would effect a seal (Tr. 823). However, he admitted directing Cen-V1-Ro employees to coat the entire bell surface partly because of the number of holes, but mainly because Cen-Vi-Ro did not have personnel sufficiently experienced to determine which holes require repair and which did not (Tr. 806, 807, 829). An Inspectors Daily Report, dated October 7, 1965, indicates that Mr. Herrera was not in favor of eliminating epoxy in the bells. An Inspectors Daily Report, dated November 8, 1965, recommends that Cen-Vi-Ro have a qualified man on each shift to determine which bells should be repaired. Decision The record establishes that air holes are normal in concrete pipe manufactured by the Cen-Vi-Ro process and that Bureau inspectors required the repair of air holes in the bell area which were a quarter of an inch or larger in diameter. Since the specification required that bell and spigot areas in contact with the gasket within a joint movement range of three-fourths of an inch be free from air holes, we cannot say that this requirement was erroneous or unreasonable. The record further establishes that the practice of coating the entire bell surface with epoxy was initiated by Cen-Vi-Ro principally because it lacked personnel with sufficient expertise to determine which air holes required repair and which did not. It follows that the claim for repair of insignificant air holes must be and hereby is denied. Longitudinal and Circumferential Cracks Subparagraph 67.j.(2) of the specification provides, inter alia, that the pipes be free from fractures. Mr. Peckworth testified that hibiting all cracks in the pipe. However, even Cen-Vi-Ro admits that extensive longitudinal and circumferential cracks should not be allowed (letter of June 10, 1965, note 53, supra). Cen-Vi-Ro's basic contention is that the specification through the Concrete Manual specifically allows the repair of "fractures or cracks passing through the shell" and that such repairs are prohibited only on breaks entirely through the shell on gasketed spigots which extend more than four inches around the circumference under the gasket or which are the result of "continuing failure to take known corrective action." In addition, Cen-Vi-Ro asserts that the requirement that pipes with such cracks be tested prior to repair constituted a unilateral change. We have previously agreed with Cen-Vi-Ro's contention that the contracts contemplated that repairs in accordance with the Concrete Manual were permissible. Mr. Lincoln testified that the Bureau in some instances prior to May 1965, allowed cracks extending en there are cracks in all concrete pipe tirely through the pipe wall to be and that while all fractures were cracks, the converse was not true (Tr. 212, 213, 218). He defined a fracture as a crack where there had been movement (Tr. 212, 244, 245, 296). The Government has not even attempted to rebut this testimony. Indeed, we consider that any such attempt would be futile since the Concrete Manual clearly does not regard fractures and cracks as identical. The Board finds that the contract may not be construed as pro repaired.119 He stated that many of these pipes leaked and that the repaired area of the pipe extended under hydrostatic tests (Tr. 1882, 112 Tr. 1882. He described the repair process as follows: * a small "V" was chipped out on the inside and outside of the crack in the pipe wall and the repair made in that area" (Tr. 1883). He stated there was no way of telling whether the epoxy entirely filled the crack. Although the Sixth Edition of the Concrete Manual does not provide for epoxy repairs, the Seventh Edition, which was originally issued in 1963 (Tr. 2086), does provide for such repair. February 7, 1978 1883). The record does not indicate the number of such repaired pipes. He further stated that the Bureau did not consider such repairs to be safe and that such repairs were not allowed after May 13, 1965. Mr. Thomas expressed the opinion that proof Cen-Vi-Ro could satisfactorily repair longitudinal and circumferential cracks was lacking (Tr. 1423). The Tentative Instructions to Concrete Inspectors, dated May 7, 1965 (note 26, supra), provided that all pipes having circumferential cracks in the spigot of 12 inches or more should be rejected and that all pipes with longitudinal cracks must be hydrostatically tested. These instructions were superseded by the May 13 letter which provided that all pipes having circumferential cracks which extend through the pipe wall would be rejected because of the possibility of such cracks opening further due to beam action from handling and backfill loads. The memorandum of May 24, 1965, provided for hydrostatic testing to determine if the crack extended through the pipe wall. The May 13 letter also provided that all pipes having longitudinal cracks which extended for substantially the full length of the pipe would be rejected and that all pipes having shorter longitudinal cracks must be hydrostatically tested. As we have seen, "substantially" was subsequently defined as over one-half of the length of the pipe (memorandum of March 31, 1966, note 29, supra). It appears that 64 pipes were re jected for circumferential cracks and five for longitudinal cracks prior to the May 15 inventory (Exh. 59). The tabulation, dated April 18, 1967 (Exh. 60), indicates that 55 pipes were rejected for circum ferential cracks and 53 for longitudinal cracks during the May 15 inventory. A tabulation attached to the memorandum, dated May 27, 1965 (note 27, supra), reflects that during the May 15 inventory 84 pipes were rejected for circumferentially cracked spigots of which approximately 50 percent had been repaired and that 56 were rejected for longitudinal cracks of which most had been repaired. As a result of the May 15 inventory 82 repaired and previously accepted pipes were no longer acceptable (tabulation enclosed with Special Report, note 24, supra). The Board finds that these 82 repaired and previously accepted pipes were pipes with longitudinal and circumferential cracks. We further find that 42 of these pipes had repairs to circumferential cracks in the spigot and that 40 had repairs to longitudinal cracks. There can be no doubt that the May 13 letter constituted a change to the Bureau's prior practice insofar as previously accepted pipes were now rejected and insofar as it precluded repair of any pipes with longitudinal or circumferential cracks. We have found that the Concrete Manual cannot be interpreted as a mandatory requirement that all of the listed defects be repaired without regard to extent. Messrs. Peckworth and Davis agreed that all cracks in concrete pipe were not repairable (Tr. 221; Deposition, p. 52). Since Cen-Vi-Ro agrees that extensive longitudinal and circumferential cracks should not be allowed, we cannot say that the rejection of pipes with longitudinal cracks extending over one-half of the length of the pipe was unreasonable. However, the flat prohibition on the repair of any circumferential cracks cannot be accepted as reasonable since it constitutes a negation of the Concrete Manual except as to breaks entirely through the shell and which extend into or beyond gasket bearing area and extend more than four inches around circumference under the gasket. The Government again relies on the results of special hydrostatic tests as proof of substandard pipe manufactured by Cen-Vi-Ro. The Hydrostatic Test Study (Exh. 64) reflects that 64 out of 82 or approximately 78 percent of 20-foot pipes tested for longitudinal cracks failed the special hydrostatic test. The study also reflects that 30 of 84 or approximately 35.7 percent of 20foot pipes tested for circumferential cracks failed the test. The tests for circumferential cracks were for cracks in the barrel. The Study indicates that 82 of 163 or approximately 50.3 percent of 16-foot pipes tested for longitudinal cracks and 21 of 69 or approximately 30.4 percent of 16-foot pipes tested for circumferential cracks failed hydrostatic tests.120 Of 270 16-foot pipes tested for pulled or cracked spigots, 123 or approximately 45.5 percent failed the tests. We accept these failure rates as prima facie valid insofar as the method of conducting the tests is concerned, in the absence of evidence to the contrary. Cen-Vi-Ro asserts that the results of special hydro tests are distorted by the Bureau's refusal to allow repairs prior to testing. Although there is understandably no evidence of the number of pipes failing hydrostatic tests which would have passed had repairs been permitted prior to testing, it would appear that there is merit to this contention. Indeed, one of the Bureau's reasons for refusing to permit repairs to cracked pipes prior to testing was concern that repairs might falsely represent the competence of the pipe.121 However, Dr. Davis testified that with proper workmanship an epoxy grout repair was almost certain to be 100 percent effective and that if the crack was properly grouted, the likelihood of any failure in the 120 The Study does not include the results of special hydrostatic tests on 16-foot pipes which were tested at lower heads than for which the pipes were manufactured. 121 Letters of July 8, and 19, 1965, May 9, 17, and 31, 1966 (Exh. 5N, pp. 18. 19, 20, 26, 27 and 30). In a letter, dated November 17, 1965 (Exh. 27), Cen-Vi-Ro referred to the Bureau's practice of rejecting pipes when fractures or cracks were determined to extend through the shell and asked for a written ruling if the practice was to continue. The project engineer's reply, dated December 3, 1965 (Exh. 5N, pp. 35, 36), reaffirmed the criteria in the May 13 letter and stated that the competence of any repair of a crack through the pipe wall was questionable. |