Revision of German procurement and contract regulations for construction works

The German Committee for Construction Contract Procedures (Deutscher Vergabe- und Vertragsausschuss für Bauleistungen, “DVA”) has revised Parts A and B of the German Procurement and Contract Regulations for Construction Works (“VOB/A” and “VOB/B”, respectively).

According to the current planning status, the VOB/A and VOB/B revisions will come into force on 18 April 2016. However, the DVA intends to issue all parts of the VOB anew as "VOB 2016" in the course of this year.

The VOB/A and VOB/B revisions accompany other recent key procurement law changes, including: the German Draft Bill for the Modernisation of Procurement Law (GWB-E) which was adopted in December 2015; and the German Draft Ordinance for the Modernisation of Procurement Law accepted by the federal cabinet on 20 January 2016.

1. New Regulations in the VOB/A

• Throughout the VOB/A, single clauses that had contained multiple regulations under a single number have been divided into subsections designated alphabetically, a to f. This restructuring primarily served the purpose of simplification to avoid lengthy clauses and to improve the structure.

• In Section 1, the rewriting of the VOB/A led to a few terminology changes, including: the “award period” is now referred to as the “binding period”; the term “entity” replaces “candidate”; and the term "technical specifications" is redefined.

• The Section 1 revisions also resulted in a few content changes, namely: tenders must be received by the deadline set in the contract notice for submitting tenders whereas hitherto it has been sufficient that the bid is present when the opening of the first tender starts; and the VOB/A now clarifies that contract amendments made pursuant to the VOB/B do not require a new award procedure, with the exception of amendments to a contract pursuant to § 1 (4), sentence 2, of the VOB/B.

• In Section 2, the clause designation is changed from "EC" to "EU". The content changes implement the provisions of Directive 2014/24/EU into German law and in-clude the following.

• Innovation partnership is now included in the list of procedures as an additional award procedure and is regulated accordingly; open procedures and restricted procedures are both available to public contracting entities on an equal basis; and there are new provisions governing negotiated procedures and framework agree-ment and requirements for the award of contracts in lots.

• The provisions on qualitative selection are revised using the EU terminology, introducing the European Single Procurement Document (ESPD) as provided under Commission Implementing Regulation (EU) 2016/7 of 5 January 2016 and involves the information system e-Certis. They also provide additional requirements regarding the use of third-party competence (sub-contractors) and specify the require-ments under GWB-E relating to self-cleaning.

• The requirements regarding specification (Leistungsbeschreibung) now also regulate the use of certifications and quality marks as evidence that technical requirements and criteria are satisfied.

• Standards concerning requirements for energy consumption-related products, technical devices and equipment are established.

• The revised VOB/A contains the new rules for the electronic awarding of contracts.

• The contract award criteria may now also comprise the organisation, qualification and experience of the envisaged staff assigned to performing the contract and the new provisions include standards for the evaluation of the life cycle approach.

• The VOB/A no longer contains any requirements regarding award documentation, but instead refers to the VgV, which also applies to the award of construction contracts.

• Starting from 18 April 2016, the previous regulations for construction concession will cease to apply, since the Ordinance for the Award of Concessions (KonzVgV) will apply as of that date.

• § 22 implements the new provisions of § 132 of GWB-E relating to order changes during the term of the contract.

2. New Regulations in the VOB/B

• Contractors are now obligated to provide the name, the legal representative and the contact details of their subcontractors and the subcontractors’ subcontractors to the contracting entity (principal). The contractor must provide the information before the subcontractor begins to provide services, without having been requested to do so. If asked to do so, the contractor is also obligated to submit declarations and evidence of its subcontractors' suitability to the contracting entity (principal).

• Termination for cause is now permissible, inter alia, if the contractor ought not to have been awarded the contract because of a mandatory ground for exclusion. Termination may also be based on a material amendment to the contract or on the determination by the European Court of Justice of a severe violation of the Treaty on the European Union or the Treaty on the Functioning of the European Union. In the latter case, termination for cause is also permissible within the chain of subcon-tractors, irrespective of whether the subcontractor contracts resulted from award procedures. The rendered services will then be accounted for in accordance with § 6 (5) of the VOB/B.

• Finally, throughout the VOB/B, the DVA replaced the term "withdrawal of contract" with the word “termination”. However, this change of wording is not legally relevant.

If you would like more information on the new VOB provisions, please contact Christian Scherer-LeydeckerMartin Krause re VOB/A and re VOB/B.