Claims management

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Under claim management is defined as the use of (or the management of) "supplements", ie changes in the contractually owed Bausolls afterwards .

Aspects such as influence on the construction time, other difficulties, etc. lead to the fact that supplement management requires a wide range of knowledge in construction technology , construction operations, the calculation of construction prices and the resulting legal context.

Causes for supplements

It is almost common for the contractor to offer the changed service by means of a specially written description with its prices. However, the obligation to describe the service is incumbent on the client (AG) or his planner for a variety of reasons. The client's clear planning duty and responsibility is based on VOB / A § 7 Paragraph 1 No. 1 and No. 2 in conjunction with V. with VOB / B § 1 Para. 3 and 4. According to Vygen, the description of the services by the contractor is "the main cause of the many and often protracted disputes of the building contract partners about the reason and amount of supplementary claims" .

The contractor side not infrequently initiates the “supplements” by means of their “claim management ”. For this purpose, gaps in the tender documents, quantity errors and other contradictions are searched for as early as the stage of the offer calculation for the main contract. Recognizing this, there is speculative potential for the bidder in terms of pricing, as it is foreseeable that contract changes will have to be made during construction. In the area of ​​public clients, the applicant is obliged to point out any ambiguities in the tender documents:

"Notification of ambiguities in the tender documents If, in the opinion of the applicant, the tender documents contain ambiguities, he must immediately inform the awarding authority in writing before submitting the offer".

From a legal point of view, however, this obligation is to be classified as quite limited, because according to VOB / A § 7, the client must first and foremost ensure a faultless description of the service. The above-mentioned duty of the applicant can therefore only be interpreted for "obvious" errors in the description. It can not be the task of the applicant, the documents of inviting tenders scan for errors. VOB / A § 7 Paragraph 1 No. 1 regulates:

"The service must be described clearly and so exhaustively that all applicants have to understand the description in the same sense and can calculate their prices safely and without extensive preparatory work."

If this is not the case and there is no clarification of any contradictions, gaps, errors, etc. before the offer is opened, an evaluation of the offers according to VOB / A § 16 is usually only more difficult and possible to a limited extent.

In 2016, the Bavarian Supreme Audit Office examined the causes of supplements and presented the deficiencies in the processing of supplements.

Formation of "supplementary prices"

In the area of ​​public clients, the processing of contract changes is subject to the VOB, the procurement and contract regulations for construction services. In Part B (contractual conditions for the execution of construction work), the following is regulated, for example, for services not previously provided for in the contract (“additional services”).

VOB / B § 2 Paragraph 6 No. 2: "The remuneration is determined according to the principles of price determination for the contractual service and the special costs of the required service".

This means that the price for the new service to be commissioned must correspond to the price level of the already commissioned. Almost every calculation of a construction work consists of the individual costs of the partial services (EKdT), i.e. directly determinable, assignable costs of the described service and also overhead costs (GK). There is also an approach for risk and profit (W + G). The sum of all this results in the unit price per service unit (usually one item in a service specification as the basis for a unit price contract ). The sum of all unit prices formed in this way results in the total offer price. The above-mentioned overheads again differ in construction site overheads (BGK) and general business costs (AGK). The relevant literature as well as the i. d. As a rule, the procurement manuals of the federal government, the federal states or the municipalities to be used by public contracting authorities name in detail most of the types of costs that are understood to include them. The construction site overhead costs arise on the construction site in contrast to the general business costs, which are mostly not incurred on site, but at the company headquarters of the executing company.

No automatism with the overhead surcharges

Often it is wrongly concluded from the formulation of the aforementioned VOB / B § 2 Paragraph 6 No. 2 that there is also an automatic mechanism for the “supplementary price” with regard to the surcharges for the overheads (BGK / AGK). Since the approach for BGK in the calculation of the main contract was based on specific costs for services (construction site equipment, construction management, etc.), the amount of this surcharge (usually in%) rarely corresponds to the actual construction site overheads for the additional service. It is not unusual for there to be hardly any additional BGK for new services. This is z. B. by the judgment of the KG Berlin dated December 17, 2013, AZ 7 U 203/12 (BGH, decision of April 27, 2016, VII ZR 24/14 [non-admission complaint rejected]), substantiated that the plaintiff a corresponding claim Right refused.

Nevertheless, it has become common practice not to question this fact, namely whether and, if so, to what extent additional construction site overheads are incurred for the new service. With regard to the general business costs, the situation is basically the same, whereby the case law largely tends to see the AGK surcharge for this as a function of sales, regardless of whether and how many new AGKs arise in the company for additional services. For example, when using the procurement and contract manual for construction services (VHB Bund), it is relevant which type of calculation was documented by the contractor using price sheets VHB 221 or VHB 222 when the order was placed. When using VHB 222 (calculation based on the final total of the offer), it is assumed that the AGK are generally fixed for the specific order. However, a contractor can refute this; ideally based on the explanations in the VHB 222 spreadsheet itself.

This is confirmed in the VOB standard work by Kapellmann and Schiffers Remuneration, Supplements and Consequences of Disabilities in the Construction Contract • Volume 1: Unit price contract

Changed services, marginal no. 1007: “A surcharge for construction site overheads, on the other hand, is only to be applied until the calculated construction site overheads (BGK) are covered - provided that the client's order does not result in additional construction site overheads. In practical terms, this means that a supplement may only include surcharges for BGK if the calculated BGK is no longer covered by the calculated surcharges. "

as well as under

Additional Benefits, marginal no. 1011: … “As soon as the previous coverage level is reached - that is, case II occurs in accordance with marginal no. 624, 629 - the result is simplified what has already been stated in para. 1008 for the changed service: surcharge rates may not contain more shares to cover construction site overheads. Here, too, as for changed services, the surcharge rates for the construction target can initially be adopted unchanged if a clearing calculation is carried out when the final invoice is issued. "

Ultimately, it is recommended that an overhead cost review be carried out after all services, their scope and the framework conditions of the execution (construction time or, if necessary, disruptions and / or acceleration measures, etc.) have been determined. The aim of this is to identify any over- or under-cover.

literature

  • Ulrich Elwert, Alexander Flassak: Supplement management in building practice: Basics - examples - application , Vieweg + Teubner; 2007, ISBN 3834801933
  • R. Wanninger (Hrsg.): Special problems of the calculation - evidence in case of dispute: Contributions to the Braunschweiger Baubetriebseminar from February 25, 2011. Institute for Construction Industry and Construction of the Technical University of Braunschweig (IBB), 2011, ISBN 9783936214192 .

Individual evidence

  1. ↑ (analogous to Prof. Dr. Klaus Vygen, who died on March 25, 2011 in “Construction Contract Law according to VOB and BGB”, 2008, Werner-Verlag, former presiding judge at the Düsseldorf Higher Regional Court)
  2. ↑ (Application conditions VHB 212)
  3. ↑ Bavarian Supreme Court of Auditors: Annual Report 2016 part no. 29
  4. ↑ VOB
  5. ↑ http://www.bmub.bund.de/themen/bauen/bauwesen/bauaufsvergabe/vergabehandbuch/
  6. ↑ (see ibr-online.de, IBRRS 2016, 1882)
  7. ↑ Kapellmann, Schiffers: Remuneration, Supplements and Consequences of Disability in Building Contracts • Volume 1: Standard price contract , 6th edition 2011, Werner Verlag ISBN 978-3-8041-5212-0