Contracting

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Contracting (English , the contract system or adjektivisch contract closing ) is a form of cooperation designated by a contract between Contractingnehmer and a contracting transmitter (service providers). In the application form of delivery, system, energy or heat contracting , the term refers to the provision or delivery of operating materials (heat, cold, electricity, steam, compressed air, etc.) and the operation of associated systems. In the field of personnel services , contracting refers to the provision of freelance employees.

Around 15% of the market is based on energy savings or performance contracting, although it is often equated with “contracting”, which is legally, substantively and procedurally different. With this variant, no energy is supplied or made available, but the operation of technical systems can be agreed. The content of the contract here is rather the fulfillment of a savings guarantee given by the contractor.

Idea of ​​contracting and history

In Germany, business models based on the performance contracting used in the United States were developed from around 1980 . The first models of heat or delivery contracting emerged. In the following decade, the supplier market developed. Almost 500 heat contractors appeared on the market in the 1990s. A number of them have since disappeared. A process of concentration has started in the industry, which the most efficient companies (sales> € 80 million pa) have survived. Smaller businesses, e.g. B. Heating engineers who tried their hand at the branch have almost completely disappeared or their projects have been taken over by larger companies.

At the same time, the development of savings contracting was reserved for a niche market. In retrospect, the start of greater attention was perhaps marked by the energy-saving contracting tender issued by the city of Berlin in 1996, which was implemented by the Berlin Energy Agency as a project manager. The energy-saving contracting in Berlin operates under the title of Berlin energy-saving partnerships and comprises over 500 properties from the State of Berlin and the Berlin district administrations with around 1,300 buildings. At the same time, the first tender was also launched by a small municipality, the city of Schwabach in Franconia . Further milestones in the development of the energy-saving contracting market were the publication of the German Environment Agency's advice, the guidelines written by the Berlin Energy Agency (BEA) on behalf of the state of Hesse and the current guidelines of the German Energy Agency. The latter two in particular conveyed legal certainty in the area of ​​public tenders and only enabled a further, albeit still tentative, spread of this contracting model.

The range of events and literature also increased significantly during this time. The various associations and organizations of energy and heat suppliers contributed to this. Unfortunately, in the various publications and especially in the event, a clear distinction was not always made between the conditions and, in particular, the legal basis for delivery and savings contracting. With the draft of DIN 8930-5, the attempt was made to determine at least the nomenclature of the individual contracting types. However, DIN can hardly keep up with the rapid development on the market and can only be used for an initial orientation about the basic types of contracting contracts. The GEFMA guideline 540 deals exclusively with the two types of contracting.

While other services related to building use experienced a veritable outsourcing boom in the past two decades (e.g. cleaning, security services, canteens), the outsourcing of in-house energy supply by way of contracting only recorded relatively small increases. This is primarily due to the fact that with energy contracting, due to high specific investments (can only be used for the individual location or customer), the typical outsourcing advantages are omitted:

  1. the investments cannot be reduced significantly in the case of plant contracting compared to in-house implementation (often even cost disadvantage, e.g. due to additional measuring and control devices required) and
  2. The flexibility advantage that can usually be achieved with outsourcing (fixed costs become variable costs) is completely omitted with system contracting, since the contractor can secure the full amortization of his investment by means of a long-term contract with corresponding base prices (= fixed costs). At the Hanover Fair (in April 2005), the contracting companies represented there clearly showed an increasing specialization in individual market segments, e.g. B. Housing, steam and heat supply industry, from.

For energy-saving contracting, with rising energy prices, ever greater acceptance is to be expected, but with this type of contracting, even with non-public procurement, a relatively high procedural effort is always required. The sometimes very specific characteristics of technical specifications and offer evaluation also make neutral advice almost unavoidable. Since January 1, 2015, advice has been funded by BAFA. Only approved project developers are permitted for this funding, but when choosing them, one should always pay attention to the respective experience, especially with savings contracting.

Contracting parties

Contractor

The contractor is the executing company. Its tasks consist of advice, planning, financing and operation of the systems within the contractually fixed period.

Contracting taker

The contracting party is the client and usually the recipient of the contracting service, e.g. B. the owner of the property to be supplied. The designation of the various contracting types is not uniform.

variants

According to the DIN standard for refrigeration systems and heat pumps, terms and symbols part 5 CONTRACTING (DIN 8930 part 5)

  1. Energy saving contracting also called performance contracting or (energy) savings contracting.
  2. Energy supply contracting also known as plant contracting or useful energy supply.
  3. Financing contracting also called third-party financing (TPF) or plant construction leasing.
  4. Called operational management contracting or technical building management

Energy saving contracting

Energy saving contracting is also called energy saving contracting or performance contracting.

After an estimate (if possible free of charge), the energy saving contractor creates an offer. Herein, a series of measures with a guaranteed by the energy-saving Contractor energy savings presented. If the contracting party accepts the offer (i.e. the contract is concluded), the energy saving contractor plans, builds, finances and (optionally) operates all measures that are necessary to achieve energy savings. In return, he receives part of the saved energy costs until his expenses for financing, planning and controlling - and also his profit - are settled at the end of the contract. Here is the financing from the energy-saving Contractor take place, or by the customer through a subsidized construction of any amount for corresponding maturity shortening itself be worn.

The method is suitable across all cost interfaces or resources, in particular for the energetic review of a large number of buildings. Energy management that already exists or is under construction is effectively supported by this form of contracting. Smaller projects in which system technology has to be refurbished (e.g. individual buildings, model buildings or pilot projects) are less suitable because of the complexity of the process.

In principle, all measures from the field of building technology are conceivable. Basically, the control of the systems is usually exchanged with at least some of the valves and pumps and connected to a central building control system in order to enable controlling at all. Furthermore, for example, the heating control boiler can also be replaced or the distribution renewed. It is also possible to save maintenance costs through renewal.

The advantage for the contractor can be a systematic optimization of the building operation with a consolidation of the building automation into a central building control system . This usually takes place at a high technical level across all resources. The financial expenses for heating and control can be reduced. The scope of possible savings corresponds to the previously existing effects of inefficient system technology, contractual regulations or other economically effective decisions or circumstances that the contractor changes. The savings are available to the client in full after the contract period. Depending on the contract, the installed systems are transferred to the building owner from the beginning or after the expiry of the term (according to BGB).

A possible disadvantage of savings contracting can be that, if the client chooses too short terms, only the most economical measures are selected with this procedure, but other measures that make sense in the long term are not implemented or made more difficult. This “ cherry picking ” can make subsequent general renovations or long-term solutions more difficult. In reality, it is therefore a question of a precise formulation of the contract with regard to the scope of the contract and the consideration of subsequent measures or own measures.

In fact, both in self-implementation and in energy-saving contracting projects, a profitability limit to be determined in advance determines the selection of measures. Since structural measures such as If, for example, facade renovations or window renewals only rarely amortize in the contract period of 10–15 years, which is usually sought by both sides, they are not part of the standard repertoire of a savings contractor. If you want to expand the package of measures, renovation grants up to a general renovation can be implemented at the same time. A savings amount for partial refinancing is always guaranteed. The savings compared to the consumption base of the last few years are divided between the plant and construction measures.

It should also be pointed out that the conversion of the consumption on the basis of a consumption basis using so-called degree day correction is only an approximation. Even years with roughly the same number of degree days can have different uses and thus different consumption data. Therefore, a comparison basis of at least 3 years should be ensured. After all, a consideration of the overall economic efficiency must mainly evaluate the implementation of potential savings that may not be immediately and comprehensively achievable with other methods. In particular, the self-execution, which has been extended over many years for financial and personal reasons, must be assessed with the lost savings and interest.

Because of the high creditworthiness and the lack of money, this type of contracting is particularly used in local authorities (see also Public Private Partnership ). The prevalence compared to the other forms of contracting is still very low; there may be many concerns and reservations about the risks and practices. However, various guidelines (Federal Environment Agency and German Energy Agency ) offer good help here, which both help to overcome initial skepticism and can be a guide to public tenders.

Overall, it should be emphasized that savings contracting is often - and actually wrongly - viewed only as a financing instrument. An essential aspect, especially for institutions that cannot provide the full technical knowledge themselves, is to pay one (1) contractor directly for the guaranteed energy optimization. Only with this type of contracting is the contractor's interest in the realization of economical operation of the system technology in the entire building, since he can only generate his profit with proof of this.

On behalf of the Federal Environment Ministry, a guideline "Green Energy Saving Contracting" has now been published, which shows the possibilities for integrating renewable energy systems in ESC contracts.

Plant contracting

Plant contracting is also known as energy supply contracting or useful energy delivery.

The contractor builds and operates the energy system at his own risk and expense on the basis of long-term contracts with his customers. The systems are owned by the contractor and are therefore often built on the neighboring property or an entry is made in the land register about the transfer of ownership of the new heating system in the client's building. The contract terms vary between 5 and 20 years. The common goal is to achieve economic and ecological advantages through more efficient heat generation and heat storage. Usually, the contractor will invoice the amount of heat transferred at an agreed point and measured there by means of a heat meter.

Since the heat meter is usually the interface between the heating center and the users in the rest of the building, it is in the interests of the system contractor to minimize the losses within the heating center (boiler, burner, storage tank, control, pump, etc.).

The reduction of heat losses within the building, ie in the heat distribution, on the radiators and changes in use, is not a direct task of the contractor.

The services are not remunerated here via the energy saved, and there is no contractually binding savings guarantee as in energy savings contracting. Here the contractor's costs for construction, financing, maintenance and primary energy purchase are paid in monthly installments. As a rule, a two-tier price system is agreed that consists of a fixed basic price (GP) - for example € / kW, € / a, € / month - and a variable energy price (AP) - for example in € / kWh, € / MWh . In practice, various price escalation formulas or value retention clauses have emerged, which usually enable a fixed date adjustment of prices in the event of changed framework conditions: change in prices for primary energy, material or wage costs. The index figures of the Federal Statistical Office are often contractually agreed as the starting point for the price adjustments.

Financing contracting

Financing contracting is also known as plant construction leasing or third-party financing.

The contractor is responsible for financing, the operator risk remains with the contractor. Area of ​​application for definable technical facilities or systems. Financing contracting is often combined with facility management or operations management contracting.

The concept of finance contracting is controversial. Important bodies such as the AGFW's Contracting Committee or the Contracting Forum do not recognize the term.

Operations management contracting

The energy systems are owned and financed by the contractor, otherwise the process is similar to system contracting. The contractor is responsible for the trouble-free operation of the systems. Depending on the contract, the energy is again transferred at a certain point in the system or the end product “warm room” is the subject of the contract. Billing is usually a flat rate based on expenditure or performance. This type of contracting is mostly used where trouble-free operation is absolutely necessary; for example compressed air for production systems or heating in hospitals.

Legal basis

In Germany, the explanations refer to federal German law. As a rule, a delivery contract is concluded between the contractor and the contractor about the medium to be delivered, e.g. B. a heat supply contract and a lease and license agreement, provided that the contractor builds or brings in its own systems on third-party land. The basis for this is, among other things, the BGB and the ordinance on general conditions for the supply of district heating (AVBFernwärmeV) of the Federal Minister for Economic Affairs of July 20, 1980 ( Federal Law Gazette I p. 742 ), amended by the ordinance amending the energy-saving regulations of 19 January 1989 ( Federal Law Gazette I p. 112 ).

Easements or guarantees are usually used to secure the rights.

Sham contracting

If a contracting contract is concluded with the sole purpose of generating tax advantages and the influence of the service provider is only fictitious, then one speaks of sham contracting. Several judgments have been made here, especially in energy contracting.

“A distinction must be made between energy contracting, which is eligible for funding, and it is characterized by the fact that there are no energy efficiency gains. The outsourcing of the energy supply to the contractor takes place only on paper, while the actual plant operation is carried out by the end consumer himself, the sole purpose of these contracts is to generate tax advantages. "

- Berlin Regional Court : judgment of May 8, 2012

The electricity provider Care-Energy has bypassed over 82 million euros in EEG surcharge payments in this way. The contract of the group of companies under the Care-Energy Holding was repeatedly assessed as a sham contracting and large parts of the contract were declared null and void.

Further areas of application

In the following areas, the principle of system contracting and partly also of energy-saving contracting is transferred to the construction of systems that are not only used to generate useful heat. The financing takes different forms, but in many cases is also divided into fixed and ongoing components as well as savings:

  • regenerative heat generation - solar thermal, geothermal, wood, wood pellets, biomass
  • regenerative power generation - wind power
  • Heat and power generation - CHPs with different conversion technologies and energy sources
  • Industrial supply of compressed air - contracting with both savings guarantee and installment financing
  • Street and interior lighting contracting with both savings guarantee and installment financing
  • Public investments - construction of buildings under PPP
  • Traffic light systems - contracting with both savings guarantee and installment financing
  • Waste heat utilization - contracting with both savings guarantee and installment financing
  • Heat storage - contracting with both savings guarantee and installment financing
  • Rainwater harvesting systems - contracting both with savings guarantee and installment financing
  • Industrial water management - contracting with both savings guarantee and installment financing
  • Sewage gas utilization - contracting with both savings guarantee and installment financing

See also

literature

Books and essays

  • H. Baedeker, M. Meyer-Renschhausen: Energy management in small and medium-sized municipalities , Shaker 2006, ISBN 3-8322-5236-3 , www.energiemanagement-online.de, the volume deals with the integration of energy-saving contracting into municipal energy management
  • Meinefeld, Matthias: Strategic Success Factors for Contracting Offers from Energy Supply Companies , Dissertation, University of Paderborn, 2004, PdF. [1] , the thesis critically shows the limits of contracting with regard to the contribution to efficient energy use and possible marketing opportunities
  • chip GmbH / ZEK Center for Waste Management and Recycling Management (ed.), "New ways of financing projects in water management", Hattingen September 2005
  • European Economic Service (EUWID): Report Contracting 2007, Gernsbach April 2007
  • Ulrich Bemmann / Sylvia Schädlich, Contracting Handbuch 2003 , Munich, Neuwied, Cologne 2003, ISBN 3-87156-555-5
  • Ulrich Bemmann, Sylvia Schädlich, Contracting Handbook 2004, m. CD-ROM , Deutscher Wirtschaftsdienst Publication date: July 2003, ISBN 3-87156-578-4
  • Martin Hack: Energie-Contracting , 2nd edition, CH Beck, Munich 2012, ISBN 978-3-406-57275-3
  • Armin Landerer: Contracting in the energy sector. Role of the banks , paperback - 38 pages, 1997, ISBN 3-258-05534-3
  • Guido Knott: Energy Contracting: Economic Aspects and Use Cases to Improve the Efficiency of Heat Supply in the New Federal States , Energy Industry and Technology Verlagsgesellschaft mbH ', ISBN 3-925349-28-6
  • Christian Hainbach, Kälte-Contracting - environmentally friendly cooling service as an alternative, conference proceedings, ISBN 3-927882-40-2
  • Peter Viebahn, Energy saving through utility light contracting: A saving power plant for the University of Osnabrück and the resistance against it , ISBN 3-931156-04-4
  • Thomas Göllinger, Eberhard Seidel (Editor), New Perspectives on Contracting as an Innovative Form of Organization and Financing, Institute for Ecological Business Management e. V., ISBN 3-933632-13-7
  • Helmut Sendner, Energy Service. Contracting - Outsourcing - Partnering, publication date: 1995, ISBN 3-9804559-0-4
  • Volkmar Ebert, Thomas Liebernickel, Tanja Frömel, Holger Kues, Building Costs and CO2 Reduction through Heat Contracting: Obstacles and Solutions - Fraunhofer - Society for the Promotion of Applied Research e. V., ISBN 3-8167-4860-0
  • Günter Müller-Czygan, Effective outsourcing through high customer integration in industrial water and wastewater management, Watervision 1/2006

Magazines

  • Contracting and Law (CuR) , Verlag Bodak GmbH, Düsseldorf ISSN  1613-950X
  • Energy & Management, Herrsching near Munich
  • Online publication EUWID Briefing on Contracting and Energy Services, European Economic Service
  • Specialized publication EUWID Facility Management, main topics contracting, PPP and integrated facility management

Literature Austria

  • Robert Freund (editor), savings contracting in the public sector: conference proceedings, brochure - Energieverwertungsagentur (EVA, the Austrian Energy Agency), ISBN 3-901381-88-0
  • Unterweger, Contracting: Introduction and sample contracts , Taschenbuch - Verlag Österreich GmbH, ISBN 3-7046-1471-8
  • Manfred Straube, Franz Zehetner, Procurement law aspects of savings contracting models, Energieverwertungsagentur (EVA, the Austrian Energy Agency), ISBN 3-901381-62-7

Web links

Individual evidence

  1. ^ History of the Berlin Energy Agency. Accessed on September 4, 2014
  2. ^ City of Schwabach municipal energy management and savings contracting Accessed on March 19, 2011
  3. ↑ Green Energy Saving Contracting - Brief Guide to Integrating Renewable Energies ( Memento of the original from September 4, 2014 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. . Retrieved September 4, 2014. @1@ 2Template: Webachiv / IABot / www.berliner-e-agentur.de
  4. ↑ AVBFernwärmeV on gesetze-im-internet.de (PDF; 66 kB).
  5. ↑ a b LG Berlin, judgment Az. 91 O 47/12 of May 8, 2012.
  6. ↑ http://www.energate-messenger.de/news/160145/Care-Energy-muss-Millionen-an-%C3%9Cbertragungsnetzbetreiber-zahlen
  7. ↑ OLG Hamburg, judgment Az. 304 O 51/15 from November 13, 2015 = openJur 2015, 19602
  8. ↑ OLG Hamburg, judgment Az. 304 O 20/15 from November 13, 2015 = openJur 2015, 18155
  9. ↑ OLG Hamburg, judgment Az. 304 O 9/15 from November 13, 2015 = openJur 2015, 19603
  10. ↑ OLG Hamburg, judgment Az. 9 U 119/13 of August 12, 2014 = openJur 2014, 18661
  11. ↑ OLG Hamburg, judgment Az. 9 U 197/13 of August 12, 2014 = openJur 2014, 18662
  12. ↑ OLG Hamburg, judgment Az. 9 U 198/13 of August 12, 2014 = openJur 2014, 18663