Hanseatic Higher Regional Court, 27 October 2010, Ref.: 5 U 178/08
The Fee Structure for Architects and Engineers ("HOAI") in its original version from 1976 is the nationwide pricing law for planning and design services provided by architects and engineers. The HOAI was comprehensively amended by the federal legislator in 2009 in order to set environmental incentives, reduce bureaucracy, increase competition and strengthen the competitiveness of German offices with an international focus.
The HOAI stipulates minimum and maximum rates for nine different service phases, which are categorised according to the degree of difficulty of the construction work ("fee zones"):
* Basic determination
* Preliminary planning
* Design planning
* Approval planning
* Execution planning
* Preparation of the award
* Involvement of the awarding
* Object supervision
* Property management
* Documentation
The fee is agreed between the client and the architect/engineer on the basis of the HOAI regulations. To ensure the quality of the construction work, falling below the minimum rates or exceeding the maximum rates of the HOAI is only legally permissible in exceptional cases.
In the above-mentioned judgement, the Hanseatic Higher Regional Court had to decide on the undercutting of the minimum rates in the context of a contract tender on the internet platform "My-Hammer.de".
Facts of the Case The defendant (building owner) had advertised a planning contract for an 8-family house with 390 m² of living space on the internet platform "My-Hammer.de". My-Hammer.de is an auction platform on which craft orders and services can be offered and then auctioned. As the construction work required average planning services and therefore fee zone III was relevant, the minimum rate according to the HOAI was €44,243. However, the defendant only offered a lump sum fee of €32,000 on My-Hammer.de. The defendant was of the opinion that the undercutting of the minimum rates of the HOAI was justified.
Hanseatic Higher Regional CourtThe OLG did not follow the view of the defendant. A lump sum agreement may not be misused to circumvent the mandatory provisions of the HOAI. If the specifications in the invitation to tender are so unspecific that an exact calculation is not possible at all, such a lump sum fee offer may not be submitted.
In addition, the undercutting constituted an infringement of competition law pursuant to Section 4 (11) UWG, according to which anyone who violates a statutory provision (HOAI), which is also intended to regulate market behaviour in the interests of market participants, is acting unfairly.
Source: Hanseatic Higher Regional Court
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