Ehlers-Noll, GMBH v. United States

40 Cont. Cas. Fed. 76,874, 34 Fed. Cl. 494, 1995 U.S. Claims LEXIS 237, 1995 WL 746565
CourtUnited States Court of Federal Claims
DecidedDecember 13, 1995
DocketNo. 93-707C
StatusPublished
Cited by10 cases

This text of 40 Cont. Cas. Fed. 76,874 (Ehlers-Noll, GMBH v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ehlers-Noll, GMBH v. United States, 40 Cont. Cas. Fed. 76,874, 34 Fed. Cl. 494, 1995 U.S. Claims LEXIS 237, 1995 WL 746565 (uscfc 1995).

Opinion

OPINION

REGINALD W. GIBSON, Senior Judge:

INTRODUCTION

This construction contract dispute comes before the court on the parties’ cross-motions for summary judgment. Plaintiff, Ehlers-Noll GmbH, filed its complaint in this court on November 18,1993, alleging that the contracting officer improperly reduced the amount of its payment under a contract between it and the United States Army. Ehl-ers-Noll, therefore, seeks full payment of the contract price, plus interest, from the defendant, the United States. Both parties now request that the court render summary judgment in this matter because, they contend, there are no genuine issues of material fact and each, therefore, believes that it is entitled to judgment as a matter of law. For the reasons set forth herein, the court finds that there are clearly genuine issues of material fact which preclude the entry of summary judgment and, therefore, it would be unwise to grant such a motion on this limited and undeveloped record. This is so because an evaluation of the witnesses’ credibility is critical to the court’s finding of operative facts.

FACTS

The operative facts of this case, which are taken from the joint stipulations of the parties as well as the affidavits and documents submitted in connection with the cross-motions, are in large measure not in dispute. Nevertheless, where a factual dispute does exist, it shall be so noted.

Ehlers-Noll was awarded Contract No. DAJA76-91-C-0068 (ie., the subject of this dispute) on February 12, 1991, by the U.S. Army Contracting Command Europe. By the terms of the contract, Ehlers-Noll was to repair certain interior stairwells in five buildings at the Neubrucke Family Housing Area, Baumholder Military Community, Baumholder, Germany. The contract was awarded for the fixed price lump sum of DM 954,00o.1

As part of the stairwell renovations, Ehl-ers-Noll was required to install 127 basement doors of fire-rated quality. The specifications for these doors provided:

Basement doors rated T 30, assembled of comer case and steel leaf, size approx. 90 x 205 cm
The door leaf shall be constructed of double-skinned sheet steel, 1.5 mm in sheet thickness.
The door leaf shall be understood to include 2 roll type hinges with spring band for automatic closing action____
All ferrous parts (the case included) shall be proper cleaning accomplished — coated with alkyd type zincchromate primer paint (U.S. Federal Paint specification # TT-P-645 A). The surfaces involved shall have all imperfections spackled and thereafter [496]*496shall be pre-treated using alkyd odorless enamel (U.S. Federal Paint Specifications #TT-E-545 B(l)) and finished, at least twice and well covered, with semigloss interior enamel (U.S. Federal Paint Specifications #TT-E 508 C. type 1) of dark brown color shade, RAL 8014.
The complete door systems shall be made acc. to DIN 4102 and with “BAM” test mark and certificate.

(Def.App. at 4). “DIN” as used in the contract specifications refers to the “Deutsche Industries Norm” (German Industrial Norms), which are the official criteria set by the German government for standard products. In addition, “BAM” refers to the official German agency responsible for testing and approving braiding materials. Finally, “T 30” as used in the contract specifications for the doors denotes the fire rating of the door system and reflects a fire resistance of 30 minutes.

The German version of the contract specifications contained the additional term, not in the English version, which provided that the door leaf be 48 mm in total thickness. On the issue of the contract language and translation, a clause of the contract (FAR § 52.000-4034) provided: .

For purposes of the instant contract, the English language version shall govern in all instances.
(a) Specifications ... or any other documents furnished to the Contractor by the Government in connection with performance of the instant contract work, will be in the English Language.

(Def.SuppApp. at 2). Furthermore, the contract incorporated FAR § 52.225-0014, which states:

In the event of inconsistency between any terms of this contract and any translation thereof into another language, the English language meaning shall control.

(Def.SuppApp. at 3).

During the pre-performance walk-through of the construction site, the contractor, Ehl-ers-Noll, inquired of the government’s designated site inspector, Walter Regel, about the basement doors intended for installation under the contract specifications. Plaintiff alleges that the site inspector directed Norbert Noll, part owner and employee of the plaintiff company, to examine the doors that had been installed at the Wetzel Housing Complex, as the government intended that the same doors be installed pursuant to the contract at issue here. Plaintiff relies on the affidavits of its employees, Mr. Noll and Norbert Kollosehe, who was also present at the walk-through, in support of its factual position. Defendant disputes this position, pointing to the affidavit of Mr. Regel, the Army’s site inspector. Therein, Mr. Regel denies that he directed Ehlers-Noll to install the same doors as had been installed elsewhere or that he ever directed or agreed to a substitute product.

At any rate, Mr. Noll did in fact visit the Wetzel Housing Complex and identified the doors that had been installed there as Hor-mann H8-1 non-galvanized steel basement doors, a standard product of the Firm Hor-mann. Thereafter, Ehlers-Noll delivered 127 H8-1 doors to the job site on June 3, 1991, and the parties again disagree about what occurred at that time. Ehlers-Noll’s foreman at the Neubrucke Family Housing Area (i.e., the job site), Peter Medler, contends by affidavit that, upon the delivery of the doors to the job site, Mr. Regel approved them as being the doors called for in the contract specifications. Again, Mr. Regel denies in his affidavit that he ever confirmed that the doors delivered to the job site were the correct ones or that he ever accepted them as such. In addition, he contends that he did not have the authority to do so.

Eventually, the Hormann H8-1 doors were installed by Ehlers-Noll. On June 21, 1991, the contracting officer, Pia Smith, was notified by the contracting officer’s representative, Eberhard Blug, that Ehlers-Noll had installed doors that did not conform to the contract specifications. Specifically, the doors installed had a steel sheet thickness of .88 mm, while the contract specifications called for doors with a steel sheet thickness of 1.5 mm. Ehlers-Noll was also notified of this by Mr. Blug on the same day.

[497]*497At a meeting on August 13, 1991, the contracting officer, Ms. Smith, met with Ehl-ers-Noll’s representative, Mr. Noll, to discuss this issue. Mr. Noll contended that the doors installed by plaintiff did meet the specifications because the twin steel sheets together had a combined thickness in excess of the required 1.5 mm (ie., .88 mm + .88 mm = 1.76 mm). The contracting officer rejected this interpretation. Later, Ms.

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Bluebook (online)
40 Cont. Cas. Fed. 76,874, 34 Fed. Cl. 494, 1995 U.S. Claims LEXIS 237, 1995 WL 746565, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ehlers-noll-gmbh-v-united-states-uscfc-1995.