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Public Procurement Law

Public procurement concerns the granting of rights and the right to award public contracts. The Procurement Law regulates the awarding of public contracts to companies. The aim of the grant is to provide the contracting authority with material and personal resources at the most inexpensive and, at the same time best conditions. It also prevents corruption and nepotism, and ensures competition, equality and transparency on the market. Public contracting authorities are not only public bodies, but also private companies subjected to the right of awarding -for example energy companies-.
Many procurement procedures are nowadays carried out as electronic acquisitions, also called “E-Vergabe” or “eVergabe” in Germany.

Procurement procedures (German and European tendering)

The aim of the regulations is an economic purchasing and the securing of an economical use of the budgetary funds and their tax revenues, according to the requirements of the federal budget code. Furthermore, European law legally bounds the opening up of public procurement markets in the EU by means of transparent and non-discriminatory procurement procedures for all potential European applicants for public contracts. These results are to be achieved by ensuring a competition for the awarding of public contracts.

Types of awarding procedures:

There are different types of procurement procedures that need to be considered:

  • Public tender (Europe: the so-called open-procedure) calls for an unrestricted number of companies;
  • Restricted tender procedure (Europe: not open procedure) stipulates that only a limited number of companies are invited to tender.
  • The third type concerns the direct awarding of contract (negotiation process across Europe), which allows, inter alia, negotiations on the terms of contract with the companies.

The restricted invitation to tender and the direct awarding of contract are intended to lead the way to a safeguarded competition.

Priority is given to public contracting authorities (or the open procedure), as it organizes the potentially largest competition. The other methods may only be selected under certain conditions. The announcements on public contracts are published in the various Tender Journals, in daily newspapers, in the Federal Government’s website www.bund.de, as well as in EU-wide invitations to tender in the EC Official Journal.

Threshold values  for the European call for tenders

An EU-wide tendering procedure for contracts must always be issued when certain contract values (EU-threshold values) are exceeded.

The following thresholds have been applied since the 1st January 2014.

Type of contract Threshold values EU-Directives
Supply and service contracts of sectoral contractors 414.000 € Directive 2004/17/EG
(implemented in the regulation regarding the awarding of assignments in the areas of communication, potable water supplies, energy supplies/sector regulation- SektVO)
Construction Contracts 5.186.000 €
Supply and service contracts for supreme and higher federal authorities and comparable federal facilities 134.000 € Directive 2004/18/EG

(implemented in the regulation regarding the awarding of public commissions/ awarding rules- VgV)
Supply and service contracts for all other clients 209.000 €
Construction contracts 5.186.000 €
Defence and security related supply and service contracts 414.000 € Directive 2009/81/EG
(implemented in the regulation regarding defence and security- VSVgV)
Defence and security related building contracts 5.186.000 €

 

Procurement Law in public contracts

With the last amending law to the Procurement Code (VgRÄG in German), basic material award principles and greatly expanded judicial protection have been introduced.

It thus turned out that the law neither significantly delays transactions with the public sector nor leads to investment restrictions. Companies and municipalities criticized the lack of clarity and the difficulty of comprehension of the convoluted awarding regulations.

Constant simplification of the Procurement Law

The continual amendment of the Code had the purpose of restricting the awarding rules to the necessary extent and removing superfluous bureaucratic requirements. For example, the German Procurement Committee had the task of substantially simplifying the regulation of services –Part A (VOL/A) – , a part of the Procurement Law. The new VOL/A (Article 1 of the Adaptation Regulation) entered into force.

Regulation on the awarding of Public Contracts

The Regulation on the awarding of public contracts is intended to implement the Directive on the coordination of the contract´s awarding  entities operating in the water, energy, transport and postal services sectors (2004/17 / EC), the Directive on the coordination of procedures for the award of public works contracts, (Directive 2004/18 / EC) and the Directive on the coordination of procedures for the award of certain contracts in the field of defense and security (2009/81 / EC) and to change also the Directive 2004/17/ EC and 2004/18 / EC. With the entry into force of the recast versions of VOL / A, VOB / A, VOF 2009 as well as the implementation of Directive 2004/17 / EC, also the Public Procurement Order has been amended.

Procurement Law, Defense and Security

On December 14, 2011, the amendment concerning Procurement Law in the field of defense and security came into force. Hereby have been transcribed the requirements of Directive 2009/81 / EC of the EU Legislation into National Laws. The objective of Directive 2009/81 / EC is to improve the coordination of procurement procedures, taking into account specific requirements, particularly in the field of supply and security information of the member states. In this way, it is gradually possible to build up a European Market for defense and security equipment with equal competitive conditions and to open up to national Procurement Markets for European providers.

In accordance with the area-specific characteristics, the assignment of defense and safety-relevant contracts will be regulated in a separate Procurement Ordinance regarding only this area of interest.

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German Real Estate Law

Our attorneys are experts in real estate law. We advise on real estate transactions, in contractual design of purchase / usage / projects agreements, we legally support you in the financing of a transaction, in the project development and in the use of a property (tenancy law / tenancy agreements).
In addition to our expertise in real property law, we also provide an outstanding technical insight.

Real estate law / land law essentially comprises a sub-area of ​​civil law, namely the right of land and land equivalent, as it has been standardized in the provisions of §§ 873 – 902 BGB.

In case of purchase of property agreements, we work with notaries ´offices in Hanover, Lower Saxony and worldwide.

Real Estate Attorneys

Our real estate attorneys offer a specialized entitlement to their activities in real estate law; they can professionally clarify all your related questions. We are able to assist you in any situation that regards real estate law.

We do not only represent owners, projectors, brokers or landlords: we also know the essential features of tenancy law.

Therefore, we can work on all those cases regarding construction law and real estate law in such a profound way that the added value you have created in connection with your property will meet your goals.

With our experts, we also advise property managers or service providers, property developers or real estate developers.

From a legal point of view, our real estate practice covers the following areas:

  • Contract agreement;
  • Private tenancy law
  • Commercial tenancy law
  • Residential property law
  • Brokerage
  • Brokerage right
  • Construction law
  • Architectural Law
  • Development law
  • Real estate law
  • Real estate administration law
  • Real estate acquisition law
  • Property law
  • Real estate tax law
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German Architectural Law

The architectural law determines rights and obligations of the architect to his client and to third parties. Architectural Law is still missing a uniform and integrated Architect´s Act; the individual provisions that regard this area of Law are contained in various laws and legal acts. Furthermore, the majority of details that regards architectural law are shaped by individual cases ‘judgments.

The design of an architectural contract is primarily based on the Civil Code (BGB). The fees are based on the Honorarium Code for architects and engineers (HOAI). The professional rights are governed primarily by the architects ‘laws of the regions (so-called Länder in Germany) and by the statutes and directives of the Chamber of Architects.

Architects Contractual Law

When assessing, or creating a typical architectural contract, an exact comparison of the construction and planning task is necessary. A professional, individual case-oriented contract arrangement permit to avoid any later dispute over the performance of an architect or over possible fee issues related to the honorarium code for architects and engineers (HOAI).

Duties of an Architect

The Administration of Justice has imposed on the architect a wide range of clarification responsibilities, information´s obligations, reference requirements and consulting services ‘obligations. On the other hand, the bear liability of an architect is generally not regarding technical mistakes of manufacturers or companies and subcontractors.

Our activities in architectural law

We advise and represent medium-sized and large architects and engineers as well as public and private clients in issues concerning architectural and engineering´s law. At the same time, we are constantly involved in architectural and engineering´s contract´s arrangements; we also observe the various design possibilities that the public pricing law of the honorarium code for architects and engineers has to offer (HOAI). We are dedicated trial lawyers; we ensure a problem-solving approach and a solution oriented representation in the construction supervision. We certainly also advise and represent builders, construction companies, craft businesses, project planners and so on.

  • Creation and examination of architectural and engineering contracts
  • Project control contract according to DVP model
  • Pre-contractual information and consultation obligations
  • International engineering and construction contracts following the FIDIC regulations
  • Compensation policies for special benefits, extension of the contract, contractual change of the agreed services and repetition of services
  • Definition of the performance penalty to limit the risk of liability, fee agreements and the avoidance of supplementary costs of construction companies (acceptance of architectural works, premature termination of the contract, partial acceptance, liability of architects, right of subsequent performance of architects, lack of facts, secondary defect-related rights, liability of the construction supervision, construction costs breach, construction costs warranty, cost range, costs ceiling, limitation period caused by deficiency claims , termination of a contract for important personal reasons, limitation of liability and Terms and Conditions, safeguard of architects ‘claims, security mortgage, security of construction’s manufacturer following the German § 648a BGB, laws regarding the safeguard of a building capital, general planners contracts.
  • Accompanying the preparation of the auditable financial statements
  • Extra judicial and judicial enforcement of fee claims
  • Extra judicial and judicial enforcement of copyright claims
  • Defense of liability claims
  • Proceedings management and support within an independent procedure for taking of evidence
  • Requirements enforcement and demand, process management and execution
  • Checking and processing of the liability claims in insurance policy conditions of architects and engineers.

 

Further topics of Architectural Law:

  • Termination of the architects´agreements
  • Architects´ professional fees
  • Professional Code of Architects
  • Freelancer as an architect
  • Corporate contract for architects in GbR / Partnership / GmbH
  • Architect´s liability
  • Architect´s services
  • Design drafters for building services
  • Chamber of Architects.
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German Construction Labor Law

The contractual relation between the employee and the employer is always a matter of labor law.

The Construction Labor Law is characterized by generally binding collective agreements and minimum wages (German BRTv and VTV).  Of particular importance is that the hiring of personnel follows the regulation of the Law on Temporary Works (AÜG), the minimum wage and the contributions is regulated by the Act on the Employment of Workers (AEntG) and corresponding regulations from the social code.

Furthermore, numerous legal specifications about the costs must be observed, such as tariffs ´deadlines (§15 BRTV), holiday fund proceedings (through the SOKA-Bau), the liability of a general contractor under the Act on the Employment  “Arbeitnehmerentsendegesetz (AEntG)” and the German Social Security Statute Book, or so-called “Sozialgesetzbuch (SGB)” and various other reporting obligations. Construction Labor Law can help solving problems relating to false self-employment or illegal employment.

Please make sure to contact us for further questions.

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Construction Law in Germany

Horak Attorneys at Law, advise and represent you as a specialists in the legal field of construction law and architectural law, both in the construction process and in arbitration proceedings.

Construction Law for Building Companies and Tradesmen

As far as concerned the private construction law, we offer the following services for craftsmen, medium-sized construction companies, housebuilding enterprises or property developers:

Construction law during the contract negotiations:

  • Construction contract according to the German Civil Code
  • Construction Tendering and  the Contract Regulations;
  • General transfer contracts;
  • Developer contracts;
  • Sub contracts;
  • ARGE-agreements and BIEGE-contracts (contracts for the establishment of a consortium or a bidding consortium);
  • Contracts of work and deliveries.

Legal Advice:

  • Execution of construction work;
  • Building delays, construction disturbance;
  • Purchase;
  • Transaction of the prematurely completed building.

Supplementary and receivables management:

  • Securing of the work wage entitlement;
  • Supplements and remuneration alterations;
  • Advance payment and final payments.

Construction Law for Building Owners:

For you as building developer, we offer the following services:

  • Design and advising in construction contracts, agreements with construction firms and craftsmen;
  • Legal advice for the purchase of existing buildings;
  • Legal advice for collaterals;
  • Claims’ enforcements on construction defects before and after the purchase (rectification, reduction, withdrawal, indemnity);
  • Defence of unauthorized claims on remuneration.

Construction Law for architects, engineers and planners

We can offer the following services for architects, engineers, specialist planners, general planners, project controllers and project managers:

Contractual law:

Organization and examination of:

  • Architects’ agreements;
  • Engineering and engineering contracts
  • General Plan Contracts
  • Project control contracts
  • Project management contracts.

Compensation Law:

Consulting and representation of:

  • Questions of fees, such as the application of the HOAI;
  • Fee claims, in particular out-of-court and judicial enforcements.

Liability Law and Indemnity Law:

Consultation and representation in:

  • Defence against claims for damages, e.g. in case of planning deficiencies, tendering errors, construction monitoring errors;
  • Representation in perpetuation of evidence-proceedings and legal proceedings;
  • Negotiation with liability insurers.

Services for clients of architects and engineers, project management and general planners

We support and represent clients on architectural and engineering services, project managing services and general planners in:

  • Examination and design of contracts;
  • Assertion of warranty and liability claims;
  • Examination of invoices of transactions;
  • Representation in judicial proceedings, e.g. perpetuation of evidence, claims for the enforcement of claims for damages, defence against professional fees ´suit.