ᐅ Structural engineer does not respond to questions from the reviewing engineer

Hello,

My structural engineer has not responded to any calls, texts, or emails for four weeks. The reviewing structural engineer still has three questions that have not been answered.

The structural engineer’s service is included in the architect’s scope. Due to the lack of responses, the reviewing engineer is not issuing the structural safety certificate, which has now caused a construction halt for four weeks. We want to set a one-week deadline for him. What else can we do? Our lawyer says we can only set a deadline. And then? I don’t even know what steps to take if the deadline passes. File a complaint? What would that accomplish?...

We are completely stuck. Because of the weather, we already had water damage in the apartment below. It feels like we’re watching the Titanic sink and can do nothing.

Help.

You can hire someone else at any time. The only question is who will bear the costs.

Maybe better than watching the Titanic sink, as you say.

What does the architect say about it if you get the service through them?

The architect is acting the same as the structural engineer. No more contact is possible. At most one text message per week with information that does not indicate any progress on the construction site.

If the contract with Structural Engineer 1 is a contract for work, then the right to perform the work yourself according to Section 637 of the German Construction Code may apply after a verifiable delay has occurred.

You can hire another Structural Engineer 2; they will send you an invoice. Submit or sue for damages (only after the delay) against Structural Engineer 1. Your lawyer should be able to explain this to you.

The situation might be different if the HOAI fee structure is the legal basis. Your lawyer will also be familiar with that.

What exactly is a construction contract?
The structural engineer is part of the architect’s services. Would I now have to terminate the architect’s contract completely? I’d rather not cancel the contract, as then there would probably be no more warranty obligations towards them, right? If I hire a second structural engineer, would I need to charge the architect for that?

What does “if HOAI is the legal basis” mean? I thought that was the fee schedule regulation?

exaveal schrieb:
What exactly is a contract for work and services?

A contract for work and services requires the delivery of a specific result – a "work." It is governed by Sections 631 et seq. of the Civil Code.
A service contract, on the other hand, requires only a best-effort commitment. For example, employment contracts or attorney contracts. These are governed by Sections 611 et seq. of the Civil Code.

An architect’s contract is a contract for work and services.

exaveal schrieb:
The structural engineer is part of the architect’s scope of services. Do I have to terminate the contract with the architect entirely? I would rather not cancel it because then I assume there would be no warranty owed by them anymore, right?

Whether you have to or should terminate the contract is something your lawyer should advise you on. You do not lose warranty rights for services that have already been provided even if you cancel. You can terminate at any time according to Section 649 of the Civil Code, but you must pay for the work done; any work not yet performed does not have to be paid (these are the "saved expenses" which have to be credited in accordance with Section 649 Civil Code).

exaveal schrieb:
If I hire a second structural engineer, should I charge this to the architect?

Not necessarily.
It depends on who engaged the first structural engineer (and who is currently in default with their services, e.g., after an unsuccessful deadline expiry). Liability and legal consequences require that there is a default.
In any case, Structural Engineer 1 must be put in default by the client (the principal), depending on who that was – either you or your architect.

The architect must coordinate specialist planners. If the architect hired Structural Engineer 1, then the architect could also place the engineer in default or terminate their contract after a deadline.
If the architect does not act promptly, I would recommend putting the architect in default yourself in coordination with your lawyer.

What complicates matters legally is that a specialist planner (Structural Engineer 1) is not, at least under the Federal Court of Justice’s case law, considered a "vicarious agent" under Section 278 of the Civil Code within the architect’s responsibility, meaning the architect is not liable for their faults and cannot attribute their negligence to themselves. However, both could be jointly and severally liable depending on who gave the order, as mentioned above. Your lawyer should clarify this.

exaveal schrieb:
What does it mean "if HOAI is the legal basis"? I thought that is this fee schedule?

HOAI = Fee Scale for Architects and Engineers.
Depending on which service phases were agreed upon, this determines what is considered the performance owed under the contract for work and services.