Supplementary contractual conditions for the procurement of IT services
Supplementary contractual conditions for the procurement of IT services (EVB-IT) are supplementary contractual conditions for the procurement of services in the field of information technology , which are established by the Cooperation Committee ADV Federation / State / Municipal Area (KoopA ADV) in coordination with the Federal Association for Information Technology, Telecommunications and new media e. V. (BITKOM). The EVB-IT replace the BVB (special contractual conditions for the procurement of IT services).
Basics
The public sector acts under private law in its fiscal activities, i.e. when it procures objects or places orders . The relevant legal basis is therefore the BGB . According to the principle of freedom of contract and the provisions of the BGB on general terms and conditions, the public sector can also use such contractual conditions for these legal transactions .
The supplementary contractual conditions for the procurement of IT services were created especially for legal transactions in the IT sector . In many cases, the contracts to be concluded in this area do not always correspond exactly to the contract types provided for in the German Civil Code ( purchase contract , rental contract , work contract , service contract ). The EVB-IT deviates from these types of contracts and the services and obligations of the contractual partners are modified. The EVB-IT are therefore general terms and conditions and are also subject to the relevant content control .
The EVB-IT replace the special contractual conditions (BVB) that were valid until then.
Application obligation
The administrative regulations for the federal and state budget regulations stipulate that the EVB-IT must be used for contracts in the IT area (e.g. VV to Section 55 BHO ). However, they are only valid between the contractual partners if they are expressly agreed in the respective contract.
EVB IT contract types
There are currently ten different EVB-IT contract types. The CIO Bund divides them into the basic EVB-IT (= B) and the system EVB-IT (= S); He currently (2015) no longer assigns the EVB-IT system service:
EVB-IT purchase
(B) The EVB-IT purchase are to be applied to contracts for the purchase of hardware , possibly including the provision of standard software for a one-time fee for unlimited use. On March 16, 2016, the IT planning council published the new conditions for the purchase and maintenance of hardware, including a technical "no-spy clause" as a result of the scandal surrounding the state Trojan. In this clause, the contractor guarantees that the hardware to be supplied by him is free of functions that endanger the integrity, confidentiality and availability of the hardware, other hardware and / or software or data and thereby run counter to the client's confidentiality or security interests (Point 2.4 of the EVB-IT purchase). Of course, it should be noted that this new regulation is only a contractual provision. On the one hand, this must be accessible to a sufficient verifiability of the set specifications in practice, but on the other hand there is also the main problem of how to deal with intermediaries such as IT system houses, end product manufacturers and their intermediate suppliers. Because the no-spy clause is simply a contractual agreement between two parties, it will be difficult to extend your guarantees to the entire supply chain of an IT product.
EVB-IT service
(B) EVB-IT services are to be used if the focus of the service owed by the contractor is the provision of services, such as training, consulting or other support services.
EVB-IT creation
(S) The EVB-IT creation is to be used when creating or adapting software on the basis of a work contract and optionally the subsequent maintenance (after acceptance) and / or further development and adaptation.
EVB-IT transfer type A
(B) This type of contract is applicable to the provision of standard software for a one-time fee for unlimited use. It is not to be used if additional services such as installation, integration, parameterization or adaptation of the standard software to the needs of the client are required.
EVB-IT transfer type B
(B) This type of contract applies to the provision of standard software against periodic remuneration for limited use.
EVB-IT maintenance
(B) Maintenance services are inspection, maintenance and repair services and relate exclusively to the hardware . It does not matter whether the services are provided for a flat fee or at cost.
EVB-IT service
The subject of this contract is maintenance and service for a defined IT system and its possible extensions.
EVB-IT care p
(B) The EVB-IT Pflege S are designed for the conclusion of contracts which have software maintenance services for standard software as their object. This can include maintenance services to remedy defects, the provision of updates , upgrades and releases or new versions as well as other services such as support services, hotline or installation.
The conditions are geared towards the maintenance of standard software by dealers. This is shown in the fact that the contractor is neither obliged to eliminate errors (he is only obliged to provide existing error corrections), nor to further develop the standard software if necessary, for example to adapt it to legal changes.
EVB-IT system
(S) This set of rules relates to the creation of an overall IT system consisting of hardware and software (rental and purchase), provision of standard software, creation of individual software, maintenance and documentation or parts thereof. The focus of the contractual services lies in the integration and combination of the individual services, in the integration into the system environment of the client and in bringing about functionality. The creation of individual software can also be added. In the EVB-IT system contract, the work contract element of the individually owed success prevails in such a way that the application of the work contract law is justified. The system creation contract is therefore uniformly subject to the law on work contracts. It is fulfilled by acceptance of the overall system.
EVB-IT system delivery
(S) The focus of the contractual services is on the delivery of an IT system made up of standard system components. Only minor adjustment services (e.g. customizing, parameterization, integration, installation) or other minor services (training, implementation support) are agreed. These adjustment services only achieve a low value, so that the contract is not uniformly subject to the law on contracts for work and services, but rather to the sales law. The contract does not apply to the creation of individual software (then EVB-IT system contract).
Missing contract types
Some important contract types (e.g. planning of IT projects, rental / leasing of hardware, agile software development contracts) are currently missing. Until such time as EVB-IT contract types are published, corresponding contracts must still be concluded on the basis of BVB.
At the beginning of 2018, members of the Forum Agile Verwaltung eV created the draft for an agile software contract for the introduction of the e-file. It consists of three components, namely an EVB-IT transfer type A, an EVB-IT service as a framework agreement and a series of EVB-IT creation (for every agile sprint). This construction is currently (January 2018) being tested in two public administrations.
Structure and structure
Each EVB-IT contract type consists of the general terms and conditions and a contract template in which the specific legal transaction is recorded and its details are contractually regulated. At the end of the terms and conditions, each term contains definitions of terms that are used in the terms and conditions or the contract models.
Similar in other countries
In the United Kingdom , public authorities use the so-called model services contract as a standard contract for the procurement of IT services . The Cabinet Office, the Crown Commercial Service and the Government Legal Service jointly issue two versions of this as a uniform contract for the English and Scottish legal systems.
Web links
literature
- Christoph Zahrnt: Practitioner's manual EVB-IT system. Amazon. Current version 2015. ISBN 978-1-481-95405-1
- Wilhelm Kruth (Ed.), Dr. Roderic Ortner (Hrsg.), Gerhard Deiters (Hrsg.): EVB-IT Practical Guide Notes on drafting contracts. Bundesanzeiger Verlag. 11. Supplement June 2016. ISBN 978-3-89817-037-6
Individual evidence
- ↑ Digital sovereignty through contractual clauses? - The new EVB-IT of the IT planning council | EAID. In: www.eaid-berlin.de. Retrieved May 25, 2016 .
- ↑ Whitepaper Agile software contracts for the introduction of the e-file. Accessed January 31, 2018 .
- ^ Government Legal Service: Model services contract. Retrieved February 13, 2018 .
