Our Law Firm is connected with the engineering law, as our attorney Mr. Michael Horak, in addition to his legal practice, also led an engineering office; his wide practical experience gives him the right skills to handle difficult legal cases with technical problems.
Engineering Law concerns legal regulations from the legal area of general civil law, as well as public law and the law of technical standardization.
The German Engineering Law has a high regulatory density and requires high legal knowledges. Of course, an attorney advising in Engineering Law also needs a high degree of basic technical understanding. Our attorneys are prepared to advise and also represent before courts and arbitrations in all those matters regarding engineering law:
- Basic analysis,
- Implementation planning,
- Preparation for awarding contract,
- Assistance for awarding contract,
- Object monitoring,
- Object supervision and documentation.
We also prepare project contracts, general agreements, architectural contracts etc. Matters regarding the liability of engineers or assertion of fees are also within our competence.
Our service includes:
- Design, examination and negotiation of contracts involving architects (architects' contracts) or engineers (engineering contracts);
- Consultancy and representation in the processing of contracts (including changes in planning, changes in the construction period, coordination, termination, fees);
- Defense from damage claim, for instance, due to planning or supervising errors;
- Advising and representation in case of fees ´matters (especially HOAI) both out and in courts throughout Germany;
- Procedural safeguarding and enforcement of claims in the context of evidence or legal proceedings;
- Advising and representation in case of liability issues, including the responsibility of other project participant;
- Legal advice on professional rights of engineers and architects, as well as on professional liability insurance;
- Out-of-court conflict management (warning, encashment, negotiation, comparison);
- Representation in judicial and arbitration proceedings (also before the Chamber of Crafts, engineering chamber and the Chamber of Industry and Commerce).
Architectural and engineering law regulates the rights and duties of architects and engineers (including structural engineers, construction physicists, electrical engineers, communications engineers, sound engineers or surveying engineers). The main legal aspects are:
- Contractual law,
- Compensation law (in particular according to HOAI),
- Liability law,
- Right of technical standards
- Intellectual property, including copyright
- Insurance law
- Professional law.
Due to the important exercise of the profession, architects and engineers have a very important responsibility, in terms of social shaping. The individual federal states ministries are responsible for the legal supervision of the Chamber of Architects and Engineers.
The Chamber of Engineers of a country is responsible for the establishment and organization of the Chamber itself (membership, committees, utility, professional duties) and for the utilization of the professional title of “Consulting Engineer”.
The architectural laws of a country include regulations for the use of the professional title of “architect”, “urban planner”, “interior designer”, “landscape architect”, and of their professional duties.
The architects and engineering Chamber are bodies governed by public law. They are partially responsible of their services. The costs of their establishment and activity are borne by the contributions and fees of the members. Particular decisions of the committees, such as amendments require the approval of the responsible ministry.
Competition law: engineers and unfair competition
The Act against the Unfair Competition (*UWG in Germany) is intended to protect consumers as well as competitors. Thus, advertising with a qualification, such as the professional title of “engineer”, which is actually not legally given, is anti-competitive. Advertising with engineering services, connected to the offer is anti-competitive. These are a couple of cases in which a competitive warning letter against an harasser could be issued.
For more information, please visit our website www.werberechtler.de .
Procurement law for engineers
The procedures for the assignment of public contracts and the legal requirements are intended to ensure competition. Orders should be awarded to expert, efficient, law-abiding and reliable companies. The contract shall be awarded to the most commercially advantageous tender. The award of construction and planning services by public clients is of a great economic importance both for the customers as well as for the entrepreneurs participating in the competition and the planning professions. The legal provisions bind the public clients and are part of regulatory requirements:
- Procurement and Contract Regulations for Services (VOL), Part A,
- Procurement and Contracts for Building Services (VOB), Part A
- Regulation for freelance services (VOF).
- Section § 97 ff of the Act against Restrictions on Competition (GWB) and
- against competitive constraint (GWB)
- Ordinance on the award of public contracts (Public Procurement Order-VgV)
- are the federal statutory principles.
- The basic foundations are direct:
- Principle of competition,
- Requirement for transparency,
- Efficiency dictate, and other criteria such as
- Social Responsible Procurement and
- SME promotion
According to § 97(5) of the GWB (Restriction of Competition Act), the contract must be awarded to the most economically advantageous candidate; this is particularly important in freelance services that are actually awarded above the VOF threshold, the costs are in this situation, not the only determining criteria for the evaluation of the economic efficiency.
The severe legal and formal requirements are intended to ensure a fair competition and prevent corruption and preferential treatments. The VOF as a procedural guideline has to be observed and should ensure a fair competition procedure. However, the practical implementation shows that in general, only large engineering companies are able to participate with a possibility of success – innovation and efficiency are often secondary in small and medium-sized offices-. It happens really oft that engineering offices complain on the high bureaucratic expenditure.
For further information please visit www.vergabrechtler.com .
HOAI (Honorarordnung für Architekten und Ingenieure), Fees regulation for architects and engineers
The HOAI creates a decisive framework for a fair competition through its statutory pricing law. The main goal is to have an effective competition, and not only a pricing competition. The remuneration of architects´ and engineers´ services follows this specific honorarium code (HOAI). The HOAI is a legal regulation of the Federal Government. The HOAI is entitle to control all the structure of law regarding the improvement of tenancy law, the limitation of the rent increase as well as the regulation of engineering and architectural services (MRVG= Maßregelvollzugsgesetz = law of hospital treatment) dated 4.11.1971. This authorization instructs the regulatory authority in order to set fair fees, which take into account the legitimate interest of the architects and engineers, and the moderation of the honorarium. At the moment, the ordinance on the regulation of the fees for architects and engineers (HOAI) of 11 August 2009, entered into force on 18 August 2009 (BGBI I S.2732) applies.
The HOAI is applicable to all contracts concluded after this date. The HOAI has to be applied to all architectural and engineering services regulated by this Ordinance. The HOAI is performance-related, not job-related: it applies not only to architects and engineers, but to all services listed in the Regulation.
Application is limited to domestically based service providers. The HOAI is subdivided into five parts, whereby Part V contains annexes regarding a transitional provision. The HOAI offers cost transparency between price, performance and quality of the service for the customer as consumer: the customer protection is fundamental.
What can we do for you?
We represent and advise in engineering legal matters, such as construction contracts, engineering contract or similar:
- Master agreements
- General contractor agreements
- Subcontractors agreements
- Architectural contract
- Project management contracts
- Specialist planner agreements
- Consultation agreement
- Service agreement
- General work contracts
- Delivery agreement
- Machines production contracts
- Component supplier contracts
- Electro-technical contracts
- Project developing contracts
- Company agreements
- Disposal agreements
- Cooperation agreements
- Development contracts
- Know-how contracts
- Research contracts.
We create such contracts according to your specifications with your technical know-how, taking into account our legal skills, so that the services are clearly defined, deadlines are met and the cash flow is always regulated. In doing so, we consider standard problems, such as the passing of risks, warranty coverage and liability etc.
We also examine existing regulations, implement rights of engineering companies, entrepreneurs or other stakeholders and offer comprehensive consulting and representation.
Engineers and honorarium, what has to be considered?
We are familiar with the calculation, enforcement or defence of honorarium claims: we check the final account accordingly, and in doing so, we have the necessary legal expertise to assess the legal aspects of your situation.
When are engineers liable?
The liability of engineers results from contractual, alternatively valid statutory foundations of the civil law, with a special consideration to the recognized regulations of technology. If an engineer violates this, the liability begins. However, liability issues are highly controversial.
In most cases, however, a joint and several liability of several parties or a liability limitation are also required. There are also often complex contractual rights and obligations that need to be taken into consideration. In addition, an insurance company shall be implied.
What do we need to work on your engineering matters?
Basically, we need to know the exact situation, the projects and the contractual agreements of yours. Further details will be clarified in every individual case.
We advise and consult you in all aspects regarding engineering law.
For more information please visit our website www.constructionlaw.de