ᐅ Architect HOAI Additional Contract Clauses – Are They Common?
Created on: 16 Oct 2018 18:27
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PyrateWe have received an architect’s contract based on HOAI fee regulations from our architect. This contract includes a clause that we don’t fully understand, and we’re wondering if it is a common practice:
Changes and Additional Services
(1) The client (AG) is entitled under statutory conditions to order changes to the commissioned scope of services that involve an expansion or repetition of the service content or of the services already provided and approved, and is entitled to order changes to the service objectives, contract goals, or the performance process as well as additional services.
Additional services may only be ordered if the contractor’s (AN) business operations are prepared for such services and if they are related to the contractual execution.
The contractor (AN) is obligated, under the statutory conditions and under the conditions of item (3), to perform such changes in services, extensions of services, or additional services.
(2) If the client (AG) orders a change or additional service as described in (1), the contractor (AN) is entitled to additional remuneration. For changes or additional services that lead to a change in the billable costs, the fee will be adjusted accordingly without the need for a separate agreement.
For change or additional services that involve a repetition of basic services, the contractor is also entitled to additional remuneration without needing a separate written agreement. In this case, the extra fee is calculated based on the billable costs of the change or supplementary services or measures and the corresponding repeated service.
For other change or additional services (no repetition of basic services and especially ordered special services), the contractor is also entitled to additional remuneration. Billing is based on proven time expenditure at the following
net hourly rates:
• Contractor/Managing Director XXX EUR
• Employee (Dipl. Engineer) XXX EUR
• Other Employee XXX EUR
(3) The contractor (AN) is only obligated to provide the changed, supplementary, or additional services under § 4.2 if the client (AG) orders this in writing and recognizes the additional remuneration claim at least in principle. This latter requirement does not apply if the parties agree on separate remuneration in writing.
Is such a clause common, or should we be cautious here? What exactly does “repetition of service” mean? If we don’t like a draft or need adjustments, would we end up paying twice?
Thanks for your help!
Changes and Additional Services
(1) The client (AG) is entitled under statutory conditions to order changes to the commissioned scope of services that involve an expansion or repetition of the service content or of the services already provided and approved, and is entitled to order changes to the service objectives, contract goals, or the performance process as well as additional services.
Additional services may only be ordered if the contractor’s (AN) business operations are prepared for such services and if they are related to the contractual execution.
The contractor (AN) is obligated, under the statutory conditions and under the conditions of item (3), to perform such changes in services, extensions of services, or additional services.
(2) If the client (AG) orders a change or additional service as described in (1), the contractor (AN) is entitled to additional remuneration. For changes or additional services that lead to a change in the billable costs, the fee will be adjusted accordingly without the need for a separate agreement.
For change or additional services that involve a repetition of basic services, the contractor is also entitled to additional remuneration without needing a separate written agreement. In this case, the extra fee is calculated based on the billable costs of the change or supplementary services or measures and the corresponding repeated service.
For other change or additional services (no repetition of basic services and especially ordered special services), the contractor is also entitled to additional remuneration. Billing is based on proven time expenditure at the following
net hourly rates:
• Contractor/Managing Director XXX EUR
• Employee (Dipl. Engineer) XXX EUR
• Other Employee XXX EUR
(3) The contractor (AN) is only obligated to provide the changed, supplementary, or additional services under § 4.2 if the client (AG) orders this in writing and recognizes the additional remuneration claim at least in principle. This latter requirement does not apply if the parties agree on separate remuneration in writing.
Is such a clause common, or should we be cautious here? What exactly does “repetition of service” mean? If we don’t like a draft or need adjustments, would we end up paying twice?
Thanks for your help!
Pyrate schrieb:
In the case of a change or additional service that involves repeating basic services,Pyrate schrieb:
What exactly does “repeated service” mean? If we don’t like a design or something needs to be adjusted, do we have to pay twice?My understanding is that if you as the client don’t want a wall that has already been built, or if you want to enlarge the house by one meter (3 feet), then the wall is torn down and a new one is built (one meter further). This would be a repeated service and must be paid for again by the contractor.
I’m not certain about this; I’m only deducing it.
Repetition here refers to the basic services within each project phase. Let’s say the architect creates a draft for you (project phase 2), you approve it, and then during further planning, you receive the happy news that you are expecting quadruplets. The house is not designed for that many children, so you ask the architect to revise the plans accordingly. This requires repeating the basic services already provided, which the architect will of course expect to be paid for again.
The same applies to "additional services," such as creating a model of the house or similar tasks (this includes anything not covered by the basic services). If you can or must request these, they will be invoiced separately in addition to the agreed fee.
I’m not someone who frequently signs architect contracts, but this procedure is generally common practice. Whether it needs to be explicitly written down, I’m not sure...
The same applies to "additional services," such as creating a model of the house or similar tasks (this includes anything not covered by the basic services). If you can or must request these, they will be invoiced separately in addition to the agreed fee.
I’m not someone who frequently signs architect contracts, but this procedure is generally common practice. Whether it needs to be explicitly written down, I’m not sure...
Ultimately, it simply states that in addition to the contracted services, you are allowed to commission further services from him, and he cannot refuse as long as he normally offers them. For example, if you only hired him for work phases 1–4 and now want phases 5–6 as well, he cannot say no. Of course, you have to pay for these additional services separately.
The repeated service applies only to services that have already been "completed and APPROVED." So, in mutual agreement, he will create a plan for you, likely over several iterations, and at some point, you say, "Yes, this is great; let's proceed with this. Please prepare the tender documents." If later you decide the kitchen should be placed elsewhere, he is entitled to charge additional fees based on the extra effort required.
I haven’t seen many contracts like this, but in the planning agreements for architects I know, such clauses are usually included. Ultimately, this also provides security for you if you have not contracted all work phases upfront, so you don’t have to look for a new architect later just because the first one finds you difficult or too meticulous.
The repeated service applies only to services that have already been "completed and APPROVED." So, in mutual agreement, he will create a plan for you, likely over several iterations, and at some point, you say, "Yes, this is great; let's proceed with this. Please prepare the tender documents." If later you decide the kitchen should be placed elsewhere, he is entitled to charge additional fees based on the extra effort required.
I haven’t seen many contracts like this, but in the planning agreements for architects I know, such clauses are usually included. Ultimately, this also provides security for you if you have not contracted all work phases upfront, so you don’t have to look for a new architect later just because the first one finds you difficult or too meticulous.
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