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HFK Rechtsanwälte, Hamburg: Associate Dr. Joachim Wege – new member of the NDR board of directors

Dr. Joachim Wege, who is an Associate lawyer at the Hamburg office of HFK, was appointed to the NDR Board of Directors as one of six new members on 25 May 2018. HFK congratulates Dr. Wege on his appointment and wishes him all the best for his new position, which he will exercise in addition to his work for HFK. Pursuant to the NDR State Contract, the NDR Board of Directors monitors the CEO’s management performance and exercises financial and management control.

After studying at the universities of Kiel and Munich, completing a doctorate and articling in Germany and the US (UNO legal department), Dr. Wege began his career working in the administration of the Free and Hanseatic City of Hamburg for many years. Then, Dr. Wege became a Regional Councillor for the District of Plön, and finally worked as Executive Director of the Association of Northern German Housing Undertakings (Verband norddeutscher Wohnungsunternehmen e.V.), while also being a member of the Board of Directors and Executive Board of the Federal Association of German Housing and Real Estate Undertakings (GdW Bundesverband deutscher Wohnungs- und Immobilienunternehmen e. V.).

Since 2015, Dr. Wege has been working as a lawyer at the Hamburg office of HFK Rechtsanwälte LLP.

2018-08-17T16:38:46+01:00August 13th, 2018|HFK News|

BIM Manufacturers’ Conference

On 17 May 2018, vipnetzwerk GmbH and HFK Rechtsanwälte LLP hosted the 2nd BIM Manufacturers’ Conference of the bim2bim network.

After the 1st Conference at the Frankfurter HFK office in November 2017 already enjoyed strong attendance with around 60 participants from the construction products manufacturing industry, the event in Berlin now attracted almost 80 participants.

At the 2nd BIM Manufacturers’ Conference in Berlin on 17 May 2018, topics already touched on in November 2017 were addressed and discussed in more detail. Inspired by five keynote presentations, attendees discussed and thoroughly examined current questions and future developments in connection with the application and implementation of BIM systems.

Dr. Till Kemper, lawyer at HFK Rechtsanwälte LLP, provided an insight into the exciting topic of “BIM and the law” and talked about the BIM-specific requirements affecting product manufacturer in particular, along with the issues arising in connection therewith. His presentation focused on the requirements for manufacturer services with BIM in conventional contract and public procurement law, the interfaces of BIM with construction products law and consulting services, as well as the development of new business models and pathways including any necessary risk management required in connection therewith. Special attention was also paid to the liability issues caused by the use of BIM and solutions for these issues. For example, as a rule, there is no joint liability by the various project participants. Rather, everyone remains responsible for the proper performance of their contractually assigned services. The same applies to supplier data and ready-made data models. Each manufacturer/supplier is liable for its data. In addition, the planner is liable to the contracting entity for the data used. A more tricky liability-related question arises with regard to so-called system solutions. Here, the project planner is not required to monitor the constructive and technical details contained in these specialist plans “in the field”. The project planner is not liable for defects in the system. However, the project, is responsible in connection with the grading of third-party plans. In particular, the architect’s verification and monitoring duties relate to the interface area between the system plan and the surrounding building parts. These principles must be transferred to the BIM solutions, in whose context construction products manufacturers are providing more and more planning services. In the future, the question will arise as to whether existing public procurement practices will be changed and focused more towards system solutions from manufacturers, for example by focusing the award criteria on the benefits of a service in operation.
As the presentations by Hüsamettin Cicek and Professor Dr. Frank Ehrenheim have shown, this would make sense as the long-term costs are determined more by the operation than by the construction of a building. As Hüsamettin Cicek has shown in his practical example from the area of software development, using intelligent CAFM systems, it is possible already now to significantly lower operating costs within a very short period of time. It is also already possible to link the CAFM to data from a BIM model. Based on the standard for sustainable FM co-developed by Professor Dr. Frank Ehrenheim, regarding the 7 D levels, public contracting entities would also be able to query these quality features during the procurement process.

Bernd Günther, Data Design Systems GmbH, pointed out how even small and medium-sized companies can make themselves BIM-capable. The most important steps were to define the location and target, and to identify the available resources. However, initially, the basis for all this was to make the fundamental business decision to move towards BIM. As many reactions from the audience revealed, a large section of companies and technical building equipment planners have either not yet made this decision or have (for the time being) rejected the idea.

This topic and possible solutions also dominated the other presentations.

Here is an overview of the various presentations:

  • “BIM integration and smart building in construction projects”
    Presenter: Hüsamettin Cicek, Civil Engineer, Director, MCS Solutions Deutschland
  • “BIM 101: Demystification, practice and vision”
    Presenter: Bernd Günter, Data Design Systems GmbH
  • “BIM and the law”
    Presenter: Dr. Till Kemper M.A., HFK Rechtsanwälte LLP/bim2bim
  • “BIM, the path to the integrated data model in FM?”
    Presenter: Professor Dr. Frank Ehrenheim, Technical University of Central Hessen, Facility Management
  • “Presentation of the bim2bim partner network”
    Presenter: Udo Feucht, vipnetzwerk.com GmbH/bim2bim

In summary, it can be said that the use and implementation of the BIM method creates new, but not insurmountable, challenges for all stakeholders, which are best solved through mutual cooperation. The development of both information technology and the law are further along that one might perceive. The lack of information about practical experiences, on the other hand, is immense. This lack must be eliminated in order to create the basis for the necessary decisions and measures for a BIM-capable company. The BIM Manufacturers’ Conference in Berlin made a significant contribution towards this goal.

Further information on this topic is available at https://www.immobilien-zeitung.de/146642/bim-netzwerk-entwirrt-begriffsdschungel

2018-08-17T16:39:06+01:00August 13th, 2018|HFK News|

Claim for damages by the general contractor against the subcontractor in case of rejection of the latter by the developer/builder.

The Hamburg Higher Regional Court ruled on 15 April 2015 – docket no. 14 U 202/10 – that the general contractor (GC) is entitled to damages against the subcontractor (SC) if the developer/builder (contracting entity; CE) rejects the SC contracted by the GC due to not having passed the eligibility test, and the GC therefore has to engage a third-party contractor.

The GC hires the SC for the lateral sealing of a waterway. Under the contracting entity’s terms and conditions, the application of the process chosen by the SC required the passing of an eligibility test. As the SC was unable to demonstrate its performance capacity, the CE rejected the SC proposed by the GC. The GC therefore canceled the contract with the SC and engaged a more expensive third-party contractor.

The court granted the GC’s claim for damages against the SC in the amount of the additional costs incurred by engaging the third-party contractor. The contracting entity’s final refusal to accept the SC made it permanently impossible for the SC to provide the service. This performance impediment was attributable solely to the SC. As the SC had committed to provide the service to the GC without having passed the formal eligibility test at that time, the SC had fully accepted the risk of failing the eligibility test.

Christopher Riedel, Lawyer, and Rico Schulz, Lawyer, Berlin

2018-08-17T16:37:01+01:00August 13th, 2018|HFK News|

Sec. 642 BGB only includes cost overruns that were incurred during a delay in acceptance

In a judgment dated 26 October 2017 – VII ZR 16/17, the Federal Court of Justice rendered a decision on a long-standing difference in opinions regarding the scope of application of Sec. 642 of the German Civil Code (Bürgerliches Gesetzbuch; BGB) to the detriment of the contractors. According to the judgment, Sec. 642 BGB only includes cost overruns that were incurred during a delay in acceptance. Thus, a contractor cannot request compensation based on Sec. 642 BGB for cost overruns incurred after the delay in acceptance has ended. This decision is of considerable significance for the construction industry. If, for example, a delay in acceptance by the client that already ended in the summer causes work originally scheduled for fall to have to be carried out in winter at a higher cost, the additional expenditure is incurred as a consequence of the delay in acceptance but only after that delay has already ended. Under the earlier interpretation, such cases were covered by of Sec. 642 BGB. According to the decision now rendered by the Federal Court of Justice, Sec. 642 BGB no longer provides any basis for a claim by the contractor for additional compensation. Specifically, cost overruns caused by construction period pushbacks that often occur only after the impediment, and therefore also the delay in acceptance, has ended can no longer be compensated on the basis of Sec. 642 BGB. In most cases, the contractor will therefore have to resort to claims for damages pursuant to Sec. 6 no. 6 sentence 1 VOB/B or Sec. 280 para. 1, Sec. 286 BGB, claims for additional compensation in case of an order issued by the client, or a claim to a contract amendment based on frustration of contract. Whether the prerequisites for such claims are met will depend on the circumstances of each individual case.

Ernst Wilhelm

2018-08-17T16:36:51+01:00July 20th, 2018|HFK News|

Is the value threshold for complaints against the denial of leave to appeal dropping?

Sec. 26 no. 8 of the Introductory Act to the Code Of Civil Procedure (Einführungsgesetz zur Zivilprozessordnung; EGZPO), as amended, provides that complaints against the denial of leave to appeal in civil matters are, as a rule, permitted only if the value in dispute exceeds EUR 20,000. This provision is set to expire on 30 June 2018. In light of the current political situation at the federal level, it is not expected that it will be extended. If the value threshold drops, the number of complaints against the denial of leave to appeal brought before the Federal Court of Justice could skyrocket. Some voices are sounding the alarm that the Federal Court of Justice will become completely overloaded. At the same time, however, we have to acknowledge the fact that the value threshold for complaints against the denial of leave to appeal is an inconsistent alien element in civil procedure. Since the German Rules of Civil Procedure (Zivilprozessordnung; ZPO) were reformed in 2001, an appeal only occurs if it is admitted due to its fundamental significance, in order to further develop the law, or to ensure adjudication uniform (Sec. 543 para. 2 sentence 1 ZPO). Questions as to whether a decision was right in the individual case have been relegated to a secondary role while the interests of the general public are in the foreground. Therefore, it would only be logical to eliminate the value threshold, which had originally been intended only as a transitional measure until the end of the year 2006 anyhow but was then extended time and again by the legislator.

Dr. Sebastian Conrad

2018-08-17T16:37:34+01:00July 17th, 2018|HFK News|

Fee Ordinance for Architects and Engineers challenged under European law

On 23 June 2017, the European Commission brought an action against the Federal Republic of Germany with the goal of obtaining a judgment ruling that the German Fee Ordinance for Architects and Engineers (Honorarordnung für Architekten und Ingenieure; HOAI) violates European law. In the opinion of the Commission, the system of minimum and maximum prices for the services of architects and engineers constitutes a restriction of the cross-border freedom of establishment provided for under European law. The binding pricing guidelines set forth in the HOAI make it more difficult for architects and engineers from other EU countries to establish a business in Germany because they are prevented from offering their services outside of the permitted price range and from competing with established providers. As a result, they would be prevented from providing services of the same quality at lower prices, and services of higher quality at higher prices.

The Commission wants these restrictions to be eliminated in the future. Therefore, the European Commission commenced treaty infringement proceedings against the federal Republic of Germany in 2015. In these proceedings, the German government defended its position that the restrictions were justified. This position had been agreed on with the competent professional associations. In particular, the minimum fees were necessary in order to put a damper on price competition which, if it went far, would have a harmful effect on the quality of the work of architects and engineers. The European Commission does not follow this line of reasoning and has therefore now brought this action. Currently, it is expected that the European Court of Justice will render its decision towards the end of 2018/beginning of 2019.

2018-08-17T16:37:42+01:00July 17th, 2018|HFK News|