1. fee increases
The previous scale values were raised by 10%. The fee rates for the non-bindingly regulated service areas in Appendix No. 1 were also increased by 10% on a straight-line basis.
2. Restriction of the scope of services
The fees for the services listed in the former Parts X to XIII of the schedule of services and fees for architects and engineers (HOAI) (thermal building physics, sound insulation, room acoustics, soil mechanics and surveying services) and the services covered by environmental impact studies (so-called consultancy services) are now only regulated in a non-binding manner in Appendix 1. However, the fee tables are to continue to serve as a guideline when checking the appropriateness and sufficiency of the fees according to § 632 Abs. 2 BGB. As part of the planned further development of the HOAI, a review of the now non-binding service areas is to take place.
3. Abolition of hourly fees
The new HOAI does not provide for any regulation of the agreement of time-based fees. The regulation of the previous § 6 HOAI a. F. on hourly rates was deleted in order to allow greater flexibility in the drafting of contracts. Nevertheless, in practice there is a need to remunerate unforeseen services of a small extent that are not covered by the fee tables or otherwise according to the time spent, including special services in accordance with paragraph 2. It is therefore necessary to agree hourly rates in writing in the contract when the order is placed, otherwise such services are to be remunerated in accordance with Section 632 (2) 2 HOAI.
4. Scope of application, § 1
The new HOAI is only applicable for services provided by architects and engineers based in Germany, insofar as the services are covered by the regulation. An additional requirement is that the agreed service is provided from within the country. The limitation of the scope of application of the HOAI is due to the requirements of Art. 16 of the European Services Directive.
5. Definitions, § 2
The term "objects" has been defined more precisely and applied to the service areas of parts 3 and 4. The term "building" has been added and is based on the definition in the building regulations.
6. Chargeable costs in connection with §§ 32, 37, 41, 45, 48, 52, § 4
The basis for determining the chargeable costs is – insofar as it is referred to – DIN 276 in the version dated December 2008 (DIN 276-1: 2008-12). The partially modified cost groups in the above-mentioned DIN 276 were taken into account in the new HOAI. In the list of chargeable costs, the chargeable costs are stated first, followed by the possibly chargeable costs (non-chargeable costs, insofar as the contractor neither plans nor supervises their execution).
The increased expenses for services in the portfolio are taken into account in accordance with the regulation of § 35.
The official reasoning for § 32, 37, 48 and 52 explicitly states the cost groups. Since the cost groups of the 1981 version of DIN 276 cannot be transferred identically to the cost groups of the new DIN 276, the percentages of the chargeable costs of the technical facilities were reduced in § 48 "Special bases for the fee for the structural engineering service". (Compared to the previously referenced KG 3.2 and 3.5.2, KG 400 also includes the costs of central operating technology (KG 3.3), special central operating technology (KG 3.5.3), special operational fixtures (KG 3.5.4) and the costs for works of art andartistically designed components (KG 3.5.5). The technical equipment is divided into 8 plant groups according to DIN 276-1: 2008-12. Since the new schedule of services and fees for architects and engineers (HOAI) adopts the same scope of services as before, the object list for the technical equipment continues to refer to the former six system groups. The new system groups are to be classified in the old object lists in a similar manner on a transitional basis. The structural adjustment and update of the service descriptions will be carried out in the next step of the reform.
7. fee groups (object lists), § 5
The provisions governing the fee categories have been bundled. The number and difficulty levels of the fee categories in the various service areas are generally regulated in § 5.
The specific valuation characteristics are summarized and presented in the fee regulations (§ 20, 21, 28-31, 34,39, 43,47, 50 and 54). The fee zones continue to be determined on the basis of the object lists in Appendix 3. There have been no changes in content. The fee zones have been adopted in their current detailed description only for the structural design, since these are based on specific construction examples and no object list exists for this service area.
8. Fundamentals of the fee, Section 6
In contrast to the previous successive updating of the chargeable costs for the fee calculation (from the cost estimate to the cost determination), the final fee is determined once on the basis of the cost calculation in the object and technical planning (Parts 3 and 4 of the new HOAI).
Paragraph 1 stipulates that the fee is determined from the chargeable costs on the basis of the cost calculation and, if this is not yet available or has not been commissioned, on the basis of the cost estimate. If planning and construction supervision services are commissioned as part of the building maintenance, the cost calculation shall also be used as the basis for their remuneration.
Paragraph 2 provides the option of a construction cost agreement in addition to the cost calculation model. The following prerequisite must be met for this:
- At the time of the commissioning, no plans are available as a prerequisite for a cost estimate or cost calculation.
- Both parties have the same level of information and the same expertise.
- The construction cost agreement is based on verifiable construction costs, for example, on the basis of comparable reference objects or a complete requirements planning (e.g. based on DIN 18205).
9. Fee agreement, § 7
The provision reflects the content of § 4 and § 5 para. 4 a of the old version of the HOAI. In addition, § 7 para. 5 regulates the conclusion of supplementary agreements.
The new regulation in paragraph 7 – bonus-malus regulation – is intended to provide incentives for cost-saving construction. The previous bonus regulation of § 5 para. 4 a HOAI a.F. is supplemented by the possibility of agreeing a contractual penalty. The penalty fee can be a maximum of 5% of the contractually agreed fee. It should be noted that the basis for calculating the contingency fee is not, as before, the costs saved, but the agreed fee in total.
10. Order for several objects, § 11
(1) reflects the wording of section 22 (1) of the old version and regulates the separate invoicing of objects. The addition that this does not apply to properties with largely comparable property conditions in the same fee zone, which are planned, operated and used as part of an overall measure in a temporal and local context, has been added. Since the previous regulation has led to disputes between the contractual partners in the past, particularly in the area of technical equipment, a clarification has been made again with the new § 11 Abs.1 Satz 2 in conjunction with § 52 Abs. 2. The decisive factor is whether the plant components are combined into a single unit according to functional and technical criteria and whether they are planned, operated and used as such. The purpose of the substantive addition is to avoid that the "theoretical" possibility of connecting the individual systems separately to the public grid inevitably leads to individual billing.
11. Payments, § 15
Compared to § 8 para. 2 old version, it is added that advance payments can be demanded at the agreed times or at appropriate intervals for proven services. The aim of this alternative is to increase efforts to make appropriate agreements when concluding the contract.
12. Scope of services: buildings and space-forming extensions, § 33
The scope of services has been adopted unchanged, as have all the other scopes of services. The individual "services" of each service phase constitute the previous "basic services" and are regulated in Annexes 11 - 14 (here Annex 11). The special services of all scopes of services are shown in Annex 2.
In addition to the scope of services for buildings and space-forming extensions, Appendix 11 also contains the scope of services for open spaces. Section 38 of the open space services therefore refers to Appendix 11 as in Section 33. The original intention was to present the services separately. However, since the content of the service specifications was not to be changed (structural reform of the service specifications in the subsequent amendment stage) and the services relating to open spaces are in the overall context of the service specifications for buildings, this was not done. The same procedure was adopted for the service specifications for engineering structures (§ 42) and transportation facilities (§ 46).
13. Services in existing buildings, § 35
This regulation summarizes the previous regulations on the chargeable existing building fabric, § 10 Abs. 3a HOAI a.F., on the conversion surcharge (§ 24 HOAI a.F.). The term "conversions" was defined in more detail. According to Section 2 no. 6, this involves the redesign of an existing property with interventions in the construction or existing building. The prerequisite is therefore not, as in Section 3 no. 5 old version, that the interventions are substantial. Since the surcharge regulation applies to all objects (these are, according to § 2 no. 1, the services in parts 3 and 4) and also includes the existing processed building fabric, the margin within which a fee surcharge can be agreed has been extended (20-80%). Paragraph 1, sentence 2, stipulates that if no surcharge has been agreed in writing, a surcharge of 20 percent will apply for services from fee zone II (instead of fee zone III, as was previously the case).
14. Annexes 11, 12 and 14
In the service phases 9 – object support and documentation of the service profiles for buildings and space-forming extensions, open-air facilities (Appendix 11), engineering structures and traffic facilities (Appendix 12) and technical equipment (Appendix 14), the service for monitoring the correction of defectsremediation of defects to the period of 4 years. The limitation period corresponds to the regulation of § 13 No. 4 VOB/B. Monitoring services that extend beyond four years are not covered by the fee for service phase 9. The fee for monitoring services is to be agreed separately and freely for the resulting time difference.
Notes on provisions that no longer apply
1. services for space-forming extensions, § 25
The previous § 25 para. 1 regulated that for services of the space-forming expansion, insofar as they are transferred to the same contractor who also provides the building services, no special fee may be charged. Although the same fee table applies to services for buildings and room-forming extensions, the percentage valuation of the service phases is regulated differently. Since the regulation of § 25 a.F. was not adopted in the new HOAI, services relating to space-forming expansion must now always be invoiced on the basis of the percentages of the space-forming expansion (§ 33) that are relevant for the respective service phase.
2. Increased costs for planning, Section 55, paragraph 4
sentence 1, the option of evaluating and contractually agreeing on up to 35 percent for difficult water, wastewater and waste engineering objects that require an extremely high level of effort in the execution planning, which is not covered by the partial performance rate of performance phase 5. This regulation was included in Item 2.8.5 of Annex 2 of the HOAI - Special Services - in the area of engineering structures to make it clear that this service is not covered by the partial service rate of the management phase 5 of § 42 para. 1. Likewise, the planning of process engineering systems for engineering structures in accordance with Section 40 Nos. 1-3 and 5, which are transferred to the contractor who also provides the services according to Section 42 for the respective engineering structures, is regulated as a special service under point 2.8.5 of Appendix 2 HOAI.
3. "Local construction supervision" § 57
Local construction supervision is not part of the services of § 42 or § 46 and has not previously been part of the basic services of the engineering structures and transportation facilities. Therefore, these services are also part of the special services (Section 2.8.8 of Appendix 2 HOAI).
Transitional regulation
The new regulation does not apply to services that were contractually agreed before it came into force (Section 55 HOAI). It is not possible to adjust existing contracts, as was the case for contracts concluded before the 5th amendment came into force (pursuant to Section 103 (2) HOAI in the version of January 1, 1996) is not possible.
Exception: The original contract provides for an adjustment.
The conclusion of legally valid contracts is not necessarily bound to the written form. For contracts with ör AG, the respective legal regulation is therefore decisive, according to which this AG can conclude legally effective contracts, e.g. GemeindeO, KreisO, budgetary laws of the länder and the federal government.
The extent to which a legally binding contractual agreement exists must be examined in each individual case.*
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.