19.1 S1 In the event that concrete tested in accordance with the requirements of Section 18 fails to meet the strength requirements of this specification, the manufacturer of the ready-mixed concrete and the purchaser shall confer to determine whether agreement can be reached as to what adjustment, if any, shall be made. S2 If an agreement on a mutually satisfactory adjustment cannot be reached by the manufacturer and the purchaser, a decision shall be made by a panel of three qualified engineers, one of whom shall be designated by the purchaser, one by the manufacturer, and the third chosen by these two members of the panel. S3 The question of responsibility for the cost of such arbitration shall be determined by the panel. S4 Its decision shall be binding, except as modified by a court decision.
S1 addresses a possible adjustment or compromise process if strength tests do not equal or exceed the specification require- ments. This section addresses nothing beyond low strength test results. One scenario was suggested in Example 18.B. Other possibilities are the owner’s testing agency has low cylinder test results, and the producer’s test results indicate the design strength criteria of Section 18 were met. Other obvious situa- tions are apparently low strength concrete was removed and replaced, and somebody must pay for the removal and second placement, or perhaps the design engineer decides that the apparently low strength concrete may be accepted due to its specific location, but the owner still believes a reduced price is in order because the tests indicated the concrete was below the specification requirements of Section 18. All of these scenarios can and often do lead to resolution through a compromise pro- cess between the parties involved or the Section 19 arbitration process. When this was originally written into C94/C94M, the preference to resolve the issue by arbitration was likely a cost and time issue with the possibility of resolving the issue through a technical discussion. Arbitration may not be as common today in many areas. This may be due to the changing demo- graphics of the concrete supply and construction industry to larger multi-national corporations.
Arbitration is not inexpensive but almost always is cheaper than hiring lawyers and litigation. The preference for an arbitra- tion process in ASTM C94/C94M is that it offers an opportunity
to bring in professionals with knowledge or a systematic process of evaluation as opposed to the legal system where the lawyers, a judge, or a jury may not have the technical background neces- sary to arrive at an equitable decision.
S2 suggests the best way out of a disagreement, if and only if, a compromise cannot be reached. Get the purchaser, who may be the owner or a contractor, together with the manufac- turer (ready-mixed concrete producer), and perhaps they or some appointed representatives can work out an agreement that each feels is equitable to the project and financially fair to all involved parties. Typically, legal representatives elevate the cost of the dispute resolution due to their fees, and this can ulti- mately involve many tens of thousands of dollars.
If mutual agreement is not possible, S2 directs an arbitra- tion panel of three qualified engineers. Qualified can take on a broad meaning. The Merriam-Webster dictionary definition is:
1) fitted (as by training or experience) for a given purpose:
competent; 2) having complied with the specific requirements or precedent conditions (as for an office or employment):
eligible.
The implication is that the panel will be composed of three individuals who know something about concrete, concrete con- struction, and concrete testing, but they do not need to be experts in each phase.
As engineers, they should each have been trained in the assembly of facts and an orderly assessment of those facts to reach a logical conclusion. The greater knowledge they have of the key elements, the quicker the case may be presented, but a good mechanical engineer or geotechnical engineer, for exam- ple, may be perfectly competent or even desirable to sit on the panel. Competent and eligible do not necessarily mean a civil engineer. Arbitrating parties have the right to impartial and independent judgment. A neutral and unbiased arbitrator pos- sessing the ability to understand a technical presentation, evalu- ate the facts as presented, and vote with conviction based upon these facts is an asset to any such proceeding. A civil engineer with limited field experience or considerable experience in only one aspect of concrete may have preconceived ideas that may
deter from an unbiased examination of the facts presented. A prospective arbitrator, whether or not a civil engineer, should always abide by professional ethics to consider and decide if the knowledge and ability are present to allow for a satisfactory pro- cess and decision. Knowledge of concrete, concrete production, concrete construction, and possibly testing is necessary, but the arbitrators do not need to be experts in these fields. Lawyers usually remain involved, and it is their job to make sure the arbi- tration panel fully understands their clients’ views of the prob- lem. Expert witnesses to explain specific facts and to advance their professional and personal views will often testify for each of the arbitrating parties. An ability to evaluate properly the testimony of expert witnesses is an important part of an arbitra- tor’s job. The true expert witness is not an advocate but responds to questions with the entire truth; unfortunately this does not always occur.
Neville [1] reports a judge once asking an expert witness,
“Would you hold the same views if you were retained by the other side to the dispute?”
S2 further elucidates how the panel should be selected. The purchaser selects one panelist, individual A, and the manufac- turer selects one panelist, individual B. Individuals A and B will now confer and mutually agree on a third panelist, individual C. Now, when A and B are selected, the purchaser and manu- facturer are each hoping that their selected individual will favor their interests, so the intended purpose for the third panelist is to put aside biases and to rule based upon evidence and facts.
Each arbitrator will in fact take an oath to act in this fashion.
S2 is written as a mandatory direction for dispute resolu- tion if the dispute cannot be settled by the involved parties by stating: A decision shall be made by...
Whether everyone is bound by the directive in C94/C94M is a legal question that will vary with circumstances. ASTM
C94/C94M is typically a referenced document in an Architect/
Engineer’s (A/E’s) specification. Thus, ASTM C94/C94M forms a portion of the contract documents binding the owner and con- tractor to Section 19. The manufacturer may or may not be bound to arbitration, depending upon the agreement between contractor and manufacturer, be it a subcontract, purchase order, or verbal agreement. In most instances, the manufacturer will be bound in this situation.
When there is no contract for sales of concrete to knowl- edgeable contractors, it becomes an arbitration gray area that can certainly depend upon the circumstances and the back- ground of both the manufacturer and the contractor.
If the purchaser is a consumer who has ordered concrete to be put in a paved driveway and parking space at his residence, it becomes doubtful if arbitration is binding. Even if the delivery ticket’s small print involves the term ASTM C94/C94M, a user of this background is not expected to have an intimate knowledge of the details in ASTM C94/C94M.
The best part is that arbitration is usually looked upon favorably as a means of settlement rather than a court proceed- ing. Arbitration is quicker, cheaper, and a means of deciding a
dispute on the merits by knowledgeable professionals rather than a jury of virtual unknowns.
S3 states that the arbitrators have complete authority in deciding how the costs of arbitration will be assigned to the involved parties. These costs include fees and expenses for the panel of arbitrators, plus costs for hearing rooms, court record- ers, and other expenses incurred in the arbitration process. The expenses considered by the arbitrators would not normally include the fees for attorneys hired by the involved parties.
S4 contains two parts. The decision arrived at from the arbitration process is binding unless contested and overruled or modified in legal action. The arbitration usually does not preclude the possibility of court action if the losing party believes the judgment was wrong and desires to take the dis- agreement further or if the winner received a monetary award for less than expected and believes a better judgment will be received in a civil court.
Legal action will not often prevail. Most states have adopted or adopted with modification, the Uniform Arbitration Act [2] or a previous version of this Act, which was promulgated in 1955 by the National Conference of Commissioners on Uniform State Laws. The Uniform Arbitration Act sets forth rules that encourage arbitration rather than lawsuits. These rules extend from compelling reluctant parties into arbitration when con- tracts contain language, such as in ASTM C94/C94M, to provid- ing civil action subpoena power to the arbitrators, to defining the grounds for vacating or modifying an award.
Awards can only be annulled for such acts as corruption or fraud, evidence of partiality by an arbitrator, or through legal arguments, such as the arbitration panel refusing to hear evi- dence pertinent to the controversy or refusing to postpone the hearing when the reasons presented would normally be consid- ered sufficient by legal standards. The rules set forth in the Uniform Arbitration Act tend to support the original award unless there is evidence the panel acted improperly. If the award is vacated, the rules tend to send the controversy back to a new arbitration panel if legal standing was initially determined for arbitration, such as Section 19 of ASTM C94/C94M.
Modifications of arbitration awards have relatively short action periods, and again the court is limited in its action by the rules of the Uniform Arbitration Act. The action of modifica- tion is primarily directed at monetary values of an award. The modification may be appropriate for such items as mathemati- cal errors in the written award or if the arbitrators awarded upon a matter not actually submitted to them.
A few items have been presented that could cause binding arbitration to be modified or overturned, but, as mentioned, the courts approve of the arbitration method of dispute resolution.
They are therefore reluctant to modify awards without very good reason.
There is discussion within the ASTM Subcommittee C09.40 to remove reference to the arbitration process and alter the impetus of the section from monetary adjustments due to a past problem to solving an ongoing situation. The new scope of
Failure to Meet Strength requireMentS 161
this section would include discussions concerning low strength test results in ongoing projects. The subject of such discussions would attempt to identify the reasons for low strength results, such as calibration checks for plant scales, water meters, and admixture dispensers; possible adjustments to the mixture pro- portions; testing procedures, including onsite handling and curing procedures and calibrations of air meters and strength testing machines; or even the production process, including the quantity of job-site added water; and monetary adjustments to compensate for the low strength test results already experienced.
The National Ready Mixed Concrete Association CIP-9 and CIP-10 are concise discussions that delve into investiga- tion of low strength test cylinders results [3,4]. These publi- cations may also assist an arbitration panel to better understand the potential problems with concrete cylinders that test lower than desired.
References
[1] Neville, A. M., Neville on Concrete—An Examination of Issues in Concrete Practice, American Concrete Institute, Farmington Hills, MI, 2003, pp. 9-15–9-16.
[2] National Conference of Commissioners on Uniform State Laws (NCCUSL), “Uniform Arbitration Act (2000),” Uniform Law Commissioners, Chicago, IL, 2000, available at http://www.law.upenn.edu/library (accessed April 15, 2012).
[3] National Ready Mixed Concrete Association (NRMCA), “What, Why & How? Low Concrete Cylinder Strength,” CIP 9, National Ready Mixed Concrete Association, Silver Spring, MD, 1989, 2 pp.
[4] National Ready Mixed Concrete Association (NRMCA),
“What, Why, & How? Strength of In-Place Concrete,” CIP 10, National Ready Mixed Concrete Association, Silver Spring, MD, 1989, 2 pp.
163