I. General
On August 18, 2009, the 6th amendment of the HOAI (Fee Structure for Architects and Engineers) – the HOAI 2009 – came into force. It did indeed bring with it some modifications, such as
- an across-the-board increase of 10% in the fee scale values
- Fee calculation only after the cost calculation
- Division between the binding "planning part" and the non-binding "consulting part"
However, a fundamental revision of the individual services and fee table values was not carried out and was to be reserved for the 7th amendment.
On July 17, 2013, the HOAI 2013 came into force as the 7th amendment. The HOAI 2013 applies to all architects and engineering contracts concluded from July 17, 2013.
According to the ministry's 209-page draft bill of 06.03.2013, the aim of the HOAI 2013 is to update the job description of architects and engineers, which until now has been based on the planning and construction processes from the 1980s. The HOAI 2013 is intended to take account of the changing times, revise the content of the individual services, individually adjust the fee schedule values and eliminate legislative inadequacies within the HOAI 2009.
II. Significant changes to the HOAI 2013
The main changes to the HOAI 2013 can be described as follows:
1.) Increase in fee scale values
The fee scale values were increased individually, taking into account the planner's changed scope of services. This increase is intended to take account of the rise in construction prices, the cost of living and the extended basic services of the individual service phases. The increases in value affect to a greater extent the chargeable costs in the lower part of the fee tables. Both the mandatory planning services and the non-binding consulting services were taken into account. The range of fee increases, for example for the service profile of object planning, extends from 0.7% to 45.83%.The fee recommendations for the service of "thermal insulation and energy balancing", for example, increase by 99.81% to 203.03% compared to the HOAI 2009.
2.) Extension of the planner's range of services
The catalog of individual partial services included in a particular scope of services has been considerably expanded. This applies to both basic and special services.
Significant additional basic services are defined that must be provided by the planner if he wants to bill the full percentage of a service phase. The contractor is obliged to a greater extent by the HOAI 2013 to inform his client about the costs and the time frame of the BV. The architect's coordination obligation is emphasized.
The following changes should be noted:
- The contractor is obliged to carry out a site inspection (LPh 1).
- The contractor must demonstrate at an early stage (LPh 2) whether and to what extent his client will be able to bear the expected construction costs under the given financial conditions.
- The contractor must create a schedule for the essential processes of the planning and construction process (LPh 2).
- The contractor shall continuously update the established schedule as the project progresses (phases 3, 5, 6).
- The object planner must check the required assembly plans of the building constructions and structural fixtures planned by the object planner for compliance with the execution planning (LPh 5).
- The obligation to organize and coordinate the other parties involved in the construction is explicitly formulated as a partial service (LPh 8).
In § 3 (3) of the 2013 schedule of services and fees for architects and engineers (HOAI), the legislator clarifies that the special services listed in the HOAI are not to be understood as exhaustive. Special services can also be agreed for service profiles and service phases to which they are not assigned, provided that they do not constitute basic services there.
3.) Changed weighting of the basic services
As a result of the expansion of the basic services catalog within a scope of services, the legislator has changed the percentage weighting of the individual partial services. For example, as far as the basic service of object planning is concerned, the service phases 1, 4 and 9 have been downgraded and the service phases 3 and 8 have been upgraded. The same applies to the other planning services.
4.) Services in the inventory; maintenance and repair
The legislator has withdrawn the new regulations for building in existing structures that were introduced with the 2009 HOAI. It has reverted to the legal situation that applied when the 2002 HOAI was still in force: For example, conversion surcharges of up to 33 percent on the calculated fee for the conversion and modernization of buildings can be agreed in writing in accordance with § 36 (1) HOAI 2013. Without a written agreement, a surcharge of 20% is regularly assumed from an average degree of difficulty, § 6 Abs. 2 HOAI 2013.
The building fabric to be incorporated must be taken into account appropriately within the chargeable costs, so that these increase when building in existing structures. The building fabric to be processed is that part of the object to be planned that has already been constructed and that is processed technically or in terms of design through planning or monitoring services, § 2 para. 7 HOAI 2013.
The scope and value of the building fabric to be incorporated must be determined for the specific property at the time of the cost calculation or, if no cost calculation is available, at the time of the cost estimate, and agreed in writing, § 4 Abs. 3 HOAI 2013.
5.) Contract for several properties
The wording of § 11 HOAI 2013 has been simplified. At the same time, the fee entitlement of the planner who receives an order for several objects has been significantly modified: according to § 11 (3) HOAI 2013, a reduction in the percentages is only ordered for the LPh 1- 6. A reduction of the percentages for LPh 7 no longer takes place.
Pursuant to Section 11 Subsection 4 of the HOAI 2013, a reduction of the fee for basic services that were already the subject of another contract between the parties shall only take place if the respective basic services are commissioned for the same building, engineering structure or supporting structure.
6.) When the fee claim comes into being, Section 15 HOAI 2013
While the planner's fee claim was already due in accordance with the HOAI 2009 if he had provided his services in accordance with the contract and had submitted a final invoice that was free of errors, the planner's service acceptance by the client is now an additional, unless otherwise agreed in writing. The legislator aligns § 15 HOAI 2013 with the maturity rules of the general contract law. § 641 para. 1 BGB stipulates that the remuneration of the contractor is to be paid upon acceptance of the work.
7.) Editorial adjustments to the legal text
The legislator makes changes to the definitions and structure within the HOAI.
- The term "basic service" is again used explicitly in the legal text, § 1 HOAI 2013.
- The term "room-forming extensions" is replaced by the term "interior rooms", § 2 Abs. 1 HOAI 2013.
- The term "building" is no longer defined in Section 2 of the HOAI 2013.
- The term "generally accepted rules of technology" is no longer defined under § 2 HOAI 2013.
- The term "other services" in accordance with Section 3 (2) HOAI 2009 has been dropped.
- Section 3 (6) and (8) of the HOAI 2009 (contractor's consideration of the economic efficiency of the services; discussion of the outcome of each service phase) were deleted.
- Section 36 of the HOAI 2009 (repairs and maintenance) was inserted into the general section (now Section 12 of the HOAI 2013).
The appendix section of the HOAI has also been editorially adapted. The respective basic and special services, as well as the object lists, are separately assigned to each individual service profile in appendices 2 – 15. A separate listing of the "special services" within appendix 2 or the object lists under appendix 3 is no longer necessary.
8.) Further facts about the HOAI 2013
The following facts are particularly worthy of mention in connection with the HOAI 2013:
- Adjustment of the table thresholds to "round" amounts.
- "Streamlining" of the fee tables by reducing the table values.
- New inclusion of a fee regulation for change services, § 10 Abs. 1 HOAI 2013.
- Additional remuneration for extra coordination or familiarization work can now always be agreed in writing, Section 8 (3) HOAI 2013.
- The scope of services for area planning is divided into three fee zones, § 20 HOAI 2013.
- Fee calculation still exclusively based on the cost calculation.
- Fee calculation continues to be based on DIN 276 in the version dated Dec. 2008.
- No price regulation of time-based fees.
- No reintegration of consultancy services (Annex 1 HOAI 2009) into the legally binding price-regulated part of the HOAI.
III. Assessment of the changes/outlook
On the whole, the HOAI 2013 can be considered a step in the right direction. The editorial changes to the annex section in particular will lead to a significant improvement in the handling of the HOAI.
Nevertheless, the HOAI 2013 will present both clients and contractors with numerous new challenges. The promised fee increase is offset by a significant expansion of the contractor's obligations. The planner will be held even more accountable by the legislature to consider the interests of his client with regard to construction costs and construction time for the planned construction project. The contractor is obliged to an even greater extent to coordinate and cooperate with the other parties involved in the construction. This will be accompanied by new liability traps for the contractor if there are cost increases, construction delays and construction defects during the project. The planner will now have to ensure that the client accepts his services as promptly as possible. It is recommended that intermediate acceptance be agreed in writing. The old dispute as to whether and to what extent the building materials to be processed are to be considered "appropriate" within the billable costs if there is no written agreement will flare up again.
Both the clients and the contractors will have to conscientiously take into account the HOAI 2013 in the course of drafting the contract before the service is provided, as a large number of fee regulations only take effect when a written agreement is made when the order is placed. The contracting parties should therefore familiarize themselves with the HOAI 2013 as early as possible in order to avoid unpleasant surprises.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.