Order of Fees for Architects and Engineers – HOAI

18th August 2009

General Provisions

§ 1 Scope

This Order regulates the calculation of charges for the services of architects and engineers(supplier) with a registered office in Germany, as these services are included in this Order and are performed within this country.

§ 2 Definitions

For the purposes of this Order, the following definitions shall apply:
1. “Projects” are buildings, room-creating interior works, open-air facilities, civil engineering works, transportation installations, load-bearing structures and facilities for technical services;
2. “Buildings” are self-contained useable, covered structural installations, which may be entered by people and which are suitable or intended for the protection of people, animals or property;
3. “New buildings and new facilities” are defined as projects to be erected or created from
new;
4. “Rebuilds” are defined as any formerly ruined project being rebuilt on existing building or facility components; they qualify as new buildings if a new design is required;
5. “Extensions” are defined as additions to an existing project;
6. “Conversions” ire defined as the remodelling of an existing project involving substantial changes to its construction or structural components;
7. “Modernisations” are defined as construction work aimed at permanently raising the use value of a project provided such work does not fall under points 5, 6 or 9;
8. “Room-creating interior works” are defined as internal constructions or the creation of internal rooms involving no substantial changes to construction or structural components; they may occur in conjunction with the services covered by points 3-7;
9. “Repairs” are defined as work intended to restore a project to a state appropriate for its designated function (design state) provided such work does not fall under point 4 or result from measures defined under point 7;
10 “Maintenance” is defined as work intended to maintain the project in its design state;
11. “Open-air facilities” are defined as consciously designed outdoor areas and open spaces and similar installations associated with structures or contained within structures;
12. “Generally accepted technical standards“ are defined as written, fixed, technical specifications of procedures which according to the ruling opinion of the participating specialists, clients and the public are suitable for enabling the determination of chargeable costs in accordance with this Order and which have proven themselves in practice or which are expected to be accepted as such in the foreseeable future according to the ruling opinion; 150 Part 1 General Provisions
13. “Costs estimates” are defined as a superficial determination of the costs on the basis of the preliminary design; they are the provisional basis for any financial considerations; they are based on the findings of the preliminary design, quantity calculations, explanatory information regarding the design factors, processes and conditions including information on the building plot or site and its development; if the cost estimate is determined in accordance with § 4 para 1 sentence 3 on the basis of DIN 276, as amended on December 2008 (DIN 276-1: 2008-12)*), the total costs must be determined according to cost groups to the first level of the cost structure;
14. ”Cost calculations” are defined as a determination of the costs on the basis of the final design; they are based on revised design drawings or detail drawings of recurring space modules, quantity calculations and explanations relevant to the calculation and assessment of the costs; if they are compiled in accordance with § 4 para 1 sentence 3 on the basis of DIN 276, the total costs must be compiled according to cost groups to the second level of the cost structure;
15. “Fee bands” represent the degree of difficulty of a project or site plan.

§ 3 Services and performance profiles

(1) Sections 2 to 4 of this Order contain binding regulations for the fees for Basic Services. The fees for consultancy services are contained in Appendix 1 of this Order and are not legally binding.
(2) Basic Services which encompass such services as are generally necessary for the proper fulfilment of a contract are gathered together in performance profiles. Other services, which are required as a modification to the service objective, the scope, a modification to the execution of the service or other arrangements of the client are not contained within the performance profile and are therefore free to be negotiated and compensated for separately.
(3) Special Services are listed in Appendix 2, the list is not exhaustive. The fees for Special Services may be negotiated separately.
(4) The performance profiles defined in this Order are composed of the following service phases 1 to 9:

• 
  1. Establishing the basis of the project,
  2. Preliminary design,
  3. Final design,
  4. Planning application
  5. Execution drawings,
  6. Preparation for contract placement,
  7. Assisting with contract placement,
  8. Project supervision (construction supervision or construction management)
  9. Project management and documentation.

(5) Planning load-bearing structures only includes service phases 1-6.

(6) Notwithstanding para 4 sentence 1, the performance profiles of Section 2 are summarised therein into up to five service phases. The cost effectiveness of the service should always be taken into consideration.5 Fee bands 151

(7) The service phases in Sections 2 to 4 of this Order are valued as a percentage rate of the fees.

(8) The result of each service phase should be discussed with the client.

§ 4 Chargeable costs

(1) Chargeable costs are part of the costs of production, conversion, modernisation, maintenance or repair of projects and the associated outlay. They should be determined according to generally accepted technical standards or administrative regulations (costing regulations) on the basis of standard prices. If DIN 276 is referred to in this Order, the determination of chargeable costs is to be based on the version as amended on December 2008 (DIN 276- 1:2008-12). The VAT liable on the costs of the project is not a chargeable expense.
(2) Standard local prices will be considered chargeable costs where the client

• 
  1. undertakes supply of goods or services in person,
  2. receives more than standard discounts from building contractors or suppliers,
  3. supplies goods or services to offset against outstanding liabilities, or
  4. arranges for building materials or structural components already on hand or previously purchased to be used in construction.

§ 5 Fee bands

(1) The planning of projects, construction management and load-bearing structures is classified
according to the following fee bands:

• 
  1. Fee Band I: very low degree of design effort,
  2. Fee Band II: low degree of design effort,
  3. Fee Band III: average degree of design effort,
  4. Fee Band IV: above-average degree of design effort,
  5. Fee Band V: very high degree of design effort.

(2) Notwithstanding para 1 landscape plans and the planning of technical services are classified
according to the following fee bands:

• 
  1. Fee Band I: low degree of design effort,
  2. Fee Band II: average degree of design effort,
  3. Fee Band III: high degree of design effort,

(3) Notwithstanding paras 1 and 2 open space plans and landscape framework plans are classified
according to the following fee bands:

• 
  1. Fee Band I: average degree of design effort,
  2. Fee Band II: high degree of design effort, 152 Part 1 General Provisions

(4) The fee bands are determined on the basis of the assessment criteria in the regulation of fees in each of the performance profiles in Sections 2 to 4. Classification according to the individual fee bands is made on the basis of assessment criteria or the calculation points where applicable and in line with the rule example in the sample project list in Appendix 3.

§ 6 Basis for fees

(1) Fees for services as defined by this Order conform to

• 
  1. the performance profiles in Sections 3 and 4 according to the chargeable costs of the projects
  on the basis of the cost calculation or, if this is not available, on the basis of the cost estimate and, for the performance profiles in Section 2, the size of the sites or the calculation units,
  2. according to the performance profile,
  3. according to the fee band,
  4. according to the associated table of fees,
  5. for redevelopment services, also according to §§ 35 and 36.

(2) If, on the date of commissioning there are no designs available as a pre-condition for a cost estimate or cost calculation, the contracting parties may agree in writing notwithstanding para 1, that the fee will be calculated on the basis of the chargeable costs of a construction cost agreement according to the provisions of this Order. This will allow the amicable specification of verifiable construction costs.

§ 7 Determination of fees

(1) The fee complies with the written agreement concluded by the contracting parties when the contract is awarded, as part of the minimum and maximum rates specified by this Order.
(2) If the identified chargeable costs, values or calculation units lie outside the tabular values of this Order, the fees may be negotiated separately.
(3) In exceptional circumstances fees may undercut the minimum rates specified by this Order by written agreement between the contracting parties.
(4) The maximum rates specified by this Order may not be exceeded except in the case of exceptional services or service extending over an unusually long period; written agreement is required. Factors which are significant in terms of assigning work to fee bands or for ranking work on the minimum/maximum scales shall not be taken into account in such circumstances.
(5) If the commissioned scope of service is amended at the request of the client during the period of the contract with resulting changes to the chargeable costs, values or calculation units, the agreement on which the fee is based should be adjusted in writing.
(6) Unless otherwise agreed in writing at the time of contract award, the relevant minimum rates as per para 1 shall count as agreed. Unless a fee agreement has been devised according to para 1, Service Phases 1 and 2 of the site plan are to be evaluated as minimum rates as a percentage of the respective fee.
(7) For costing shortfalls which exploit technically and economically feasible or environmentally compatible solutions to achieve a significant reduction in costs without leading to any reduction in standards, a contingency fee may be agreed upon in writing which may amount to up to 20 per cent of the agreed fee. A malus-fee amounting to 5 per cent of the fee may be agreed upon should the amicably agreed upon chargeable costs be exceeded.

§ 8 Calculating fees in exceptional cases

(1) If not all the service phases of a performance profile are commissioned, then only the percentage rate allowed for the services commissioned may be charged.
(2) If a contract does not cover all of the services of a service phase, then the fees calculated and negotiated for the services commissioned must correspond to the ratio of the services commissioned to the total performance profile. The same applies if the supplier is not commissioned to perform significant parts of Basic Services. The cost of additional co-ordination and familiarisation work should also be taken into account.

§ 9 Calculating fees for separately commissioned services

(1) If the preliminary design or final design are commissioned as a separate services in the contract for urban land-use plans, buildings and room-creating interior works, open-air facilities, civil engineering works, transportation facilities and technical services, the corresponding service assessment of the respective service phase may be

• 
  1. for the preliminary design the percentage rate for the preliminary design plus the proportion to a maximum rate of the percentage rate for the preceding service phase and
  2. for the final design the percentage rate for the final design plus the proportion to a maximum rate of the percentage rate for the preceding service phase.

(2) If project supervision is commissioned as a separate service for buildings or technical services, the corresponding service assessment of the project supervision may be

• 
  1. for the technical services the percentage rate for the project supervision plus the proportion to a maximum rate of the percentage rate for the preceding service phase, and
  2. for buildings instead of the minimum rates in §§ 33 and 34 calculated according to the percentage rates for the chargeable costs according to § 32
• 
  a) 2.3 % for buildings in Fee Band II,
  b) 2.5 % for buildings in Fee Band III,
  c) 2.7 % for buildings in Fee Band IV,
  d) 3.0 % for buildings in Fee Band V.

(3) If the preliminary draft of landscape plans or open space plans is commissioned as a separate service, up to 60 % may be negotiated for the preliminary design notwithstanding the service assessments in Section 2 para 2.

§ 10 Multiple preliminary or final designs

If at the client’s request several preliminary drafts or final designs are produced for a single project to fundamentally different requirements, then the full percentage rates applicable to these service phases under § 3 para 4 may be negotiated in respect of the comprehensive preliminary or final design. When charging fees for every additional preliminary draft or final design, the corresponding services should be negotiated on a pro-rata percentage rate basis.

§ 11 Contracts for multiple projects

(1) Where a contract encompasses several projects, then notwithstanding the following paragraphs fees must be calculated separately for each projects. This does not apply to projects with very similar requirements in the same fee band, which are intended to be operated and used in close temporal and physical proximity as part of a large scale scheme. The fee is then calculated according to the total of the chargeable costs.
(2) Where a contract encompasses several essentially similar projects which are intended to be erected in close temporal or physical proximity under similar operating conditions or where the projects are designed to type or for serial production, the percentage rates applicable to Service Phases 1–7 must be reduced by 50 % for the first to the fourth repeat builds, by 60 % from the fifth to the seventh repeat build and by 90 % from the eighth repeat build onwards.
(3) Where a contract encompasses services which have previously been the subject of a different contract between the present contracting parties, then para 2 above applies accordingly to the percentage rates applied to the service phases commissioned in the new contract even if the services are not intended to be performed in close temporal or physical proximity.
(4) Paras 1 to 3 do not apply to site plans. In so far as the specifications, results or findings of other plans, specifically initial situations and costings of landscape plans and other plans are consulted with respect to services relating to urban land-use plans in the sense of §§ 17 to 21, the fee is to be reduced accordingly; this also applies if the production of these plans is entrusted to other suppliers.

§ 12 Sectional plans

Where sub-areas of existing urban land-use plans (sectional plans) require amending or updating, then only the factors relating to the sectional plan requiring processing may be applied in calculating the fee.

§ 13 Interpolation

The minimum and maximum rates allowed for intermediate points for chargeable costs, values and calculation units stated in the tables of fees, must be determined by linear interpolation.

§ 14 Incidental expenses

(1) Expenses incurred by the supplier in carrying out the contract (incidental expenses) may be calculated where appropriate in addition to the fees specified in this Order subject to deduction of the input tax (prepaid VAT) allowable under § 15 para 1 of the Law on Turnover Tax. The contracting parties are however free to negotiate separately in writing when the contract is awarded to exclude full or partial reimbursement notwithstanding sentence 1 above.
(2) Incidental expenses specifically include:

• 
  1. shipment costs, data transfer costs,
  2. costs for copying drawings and written documentation including the preparation of films and photographs,
  3. the costs of maintaining a site office including equipment, lighting and heat,
  4. travel costs for journeys beyond a radius of 15 kilometres from the supplier's registered office, at the fixed rates permitted by the tax authorities unless higher actual outlay can be verified,
  5. separation allowances and the costs of family visits at the fixed rates permitted by the tax authorities unless higher payments to the supplier's staff result from national wage agreements,
  6. reimbursement of miscellaneous expenses incurred in the course of long journeys as defined by point 4 above provided such reimbursement is agreed in writing before the journey commences,
  7. charges for services supplied not by the supplier direct but commissioned by the supplier with the client's consent from third parties.

(3) Incidental expenses may be invoiced on a flat rate basis or by submitting individual receipts and invoices. They must be settled on the basis of individual receipts and invoices where flat rate settlement is not agreed in writing when the contract is awarded.

§ 15 Payment

(1) Providing no other arrangement has been made, payment of the fee is due as soon as the service has been performed as required in the contract and an auditable final invoice has been submitted.
(2) Instalment payments maybe requested on agreed dates or at appropriate intervals for services verified as rendered.
(3) Incidental expenses must be reimbursed when receipts/invoices are submitted unless other arrangements are agreed in writing at contract award.
(4) Other payment arrangements may be agreed in writing.

§ 16 VAT

(1) The supplier has the right to replacement of the legally owing VAT for the services billable under this Order, unless the Small Business Law under § 19 of the Law on Turnover Tax is applied. Sentence 1 also applies to the incidental expenses reduced by the input tax (prepaid VAT) deductable from the VAT under § 15 of the Law on Turnover Tax which are still chargeable under § 14 of this Order.
(2) Expenses are not classified as reimbursement for the services of a supplier. They, including any VAT received where applicable, are to be charged as on-going items in the sense of VAT.

Technical services

§ 51 Scope

(1) Services relating to technical services encompass the specialist plans for project planning.
(2) Technical services encompass the following installation groups:

• 
  1. sewage-, water- and gas installations,
  2. heat-producing installations,
  3. ventilation installations,
  4. high voltage installations,
  5. telecommunications and data-processing installations,
  6. conveyor systems,
  7. installations with a specific purpose, including mechanical and electro-technical installations in civil engineering works,
  8. building automation systems.

§ 52 Specific principles of fees

(1) Fees for services relating to technical services are established by reference to the chargeable costs of the installations belonging to a plant group as defined in § 51 para 2. Special work for technical facilities within buildings is also chargeable.
(2) § 11 para 1 does not apply if several facilities are combined within one plant group as defined in § 51 para 2 are planned, operated and used in close temporal and physical proximity as part of a large scale scheme.
(3) Non-chargeable are the costs of non-public development and technical facilities in outdoor installations, providing they are not planned or supervised by the supplier.
(4) Where parts of the technical services are executed in constructions, the contracting parties may negotiate that all or part of the costs of such work is included in the chargeable costs. Sentence 1 above applies accordingly to structural components of the construction cost group whose dimensioning or constructions are significantly affected by the technical services.

§ 53 Technical services performance profile

(1) The performance profile for technical services encompasses services provided by the supplier in relation to new plants, rebuilding works, extensions, conversions, modernisation works, maintenance and repair works. Services relating to technical services are summarised in nine service phases and are evaluated according to percentages of the fees in § 54 as below:

• 
  1. for Service Phase 1 (establishing the basis of the project) 3 %,
  2. for Service Phase 2 (preliminary design) 11 %, 
  3. for Service Phase 3 (final design) 15 %,
  4. for Service Phase 4 (planning application) 6 %,
  5. for Service Phase 5 (execution drawings) 18 %,
  6. for Service Phase 6 (preparation for contract placement) 6 %,
  7. for Service Phase 7 (assisting with contract placement) 5 %,
  8. for Service Phase 8 (project supervision - construction supervision) 33 %
  9. for Service Phase 9 (project management and documentation) 3 %.

(2) Notwithstanding para 1, Service Phase 5 must be charged at 14 % of the fees listed in § 54 where the contract does not involve the preparation of channel and break-through drawings.
(3) §§ 35 and 36 apply accordingly.

§ 54 Table of fees for services relating to technical services

(1) The following table of fees specifies the minimum and maximum fee rates for the services listed in § 53 in respect of individual plant installations:

Table of fees to accompany § 54 para 1 – technical services

Chargeable costs Euro   Fee Band I Fee Band II Fee Band III from to from to from to 5.113 1.626 2.109 2.109 2.593 2.593 3.077 7.500 2.234 2.886 2.886 3.538 3.538 4.190 10.000 2.812 3.618 3.618 4.421 4.421 5.227 15.000 3.903 4.981 4.981 6.053 6.053 7.132 20.000 4.920 6.262 6.262 7.605 7.605 8.947 25.000 5.882 7.489 7.489 9.100 9.100 10.707 30.000 6.795 8.670 8.670 10.552 10.552 12.428 35.000 7.674 9.804 9.804 11.932 11.932 14.062 40.000 8.506 10.891 10.891 13.269 13.269 15.653 45.000 9.336 11.942 11.942 14.541 14.541 17.147 50.000 10.157 12.991 12.991 15.818 15.818 18.652 75.000 13.825 17.645 17.645 21.470 21.470 25.290 100.000 17.184 21.839 21.839 26.490 26.490 31.145 150.000 23.216 29.252 29.252 35.290 35.290 41.328 200.000 29.057 36.110 36.110 43.159 43.159 50.212 250.000 35.152 43.175 43.175 51.203 51.203 59.226 300.000 41.263 50.245 50.245 59.227 59.227 68.209 350.000 47.493 57.474 57.474 67.455 67.455 77.437 400.000 53.700 64.757 64.757 75.819 75.819 86.876 450.000 59.961 72.030 72.030 84.097 84.097 96.166 500.000 66.254 79.301 79.301 92.353 92.353 105.400 750.000 96.686 113.598 113.598 130.516 130.516 147.428 1.000.000 125.694 144.936 144.936 164.174 164.174 183.415 1.500.000 180.748 200.873 200.873 220.993 220.993 241.119 2.000.000 233.881 254.373 254.373 274.869 274.869 295.361 2.500.000 285.744 308.367 308.367 330.998 330.998 353.621 3.000.000 335.147 359.125 359.125 383.098 383.098 407.076 3.500.000 380.361 405.518 405.518 430.680 430.680 455.838 3.750.000 401.625 427.295 427.295 452.971 452.971 478.641 3.834.689 408.667 434.499 434.499 460.336 460.336 486.168

(2) Classification according to a fee band is determined on the basis of the following assessment criteria:

• 
  1. range of functions,
  2. integration requirements,
  3. technical development required,
  4. engineering requirements,
  5. structural requirements.

(3) Where installations belonging to a single plant group are assigned to different fee bands, then the fee as defined by para 1 is arrived at from the sum of their single fees. A single fee is always determined for the installations assigned to a particular fee band. To calculate single fees, first calculate for the installations assigned to each fee band the fee which would result if the total chargeable costs for that plant group were assigned solely to that fee band. The single fee is then determined based on the ratio of the total of the chargeable costs of the installations in a fee band to the total chargeable cost of the plant group.