The wording
The governing provision is § 4 paragraph 1 sentence 3 HOAI. It provides that where the ordinance refers to DIN 276 in connection with cost determination, the December 2008 edition is to be applied for determining chargeable costs.
The reference is therefore static rather than dynamic: it points to a particular edition rather than to whichever is current. When DIN 276 was reissued in December 2018, the reference consequently did not follow. It continues to point to the 2008 edition, even though that edition has been withdrawn as a standard.
In parallel, the 2018 edition governs cost planning itself. It is the current issue, it consolidates the earlier separate standards for building and civil engineering, and it represents the state of technical practice.
The legal dispute
The difficulty arises because § 4 paragraph 1 contains two anchors side by side. They point to different editions of the standard.
Sentence 2 requires determination according to generally recognised rules of technology or to administrative regulations.
Sentence 3 requires application of the 2008 edition.
As long as the older edition embodied the generally recognised rules of technology, both anchors produced the same result and the duplication had no consequence. The more the 2018 edition establishes itself in practice as the recognised body of rules, the further the two sentences diverge.
An open dispute is being conducted in the professional literature. No ruling from the highest court is available to date. The predominant view relies on the clear wording of sentence 3 and proceeds on the basis that chargeable costs continue to be determined under the 2008 edition.
A distinction is drawn between the cost group structure and the textual provisions of the standard. On the widely held reading, the reference in § 4 HOAI concerns the structure of the cost groups rather than the entire text of the standard.
Why this matters in practice
This is not a doctrinal nicety but a question of whether a fee invoice can be verified. An invoice built on the wrong structure can be rejected.
A final fee account must be capable of being checked by the client. Where it rests on a cost structure the client cannot follow, or one that does not correspond to the governing edition, the client can reject it as unverifiable. Case law under the earlier HOAI has already confirmed that route. The consequence is not a reduction but, initially, loss of due date: the invoice does not become payable until submitted in verifiable form.
The rule also runs the other way. A cost determination prepared for design purposes solely under the 2008 edition no longer corresponds to the current body of rules and compares poorly with benchmarks from today's datasets.
What changed between the editions
The 2018 edition restructured the system in several places. Four points bear on cost allocation.
| Change | Effect |
|---|---|
| New KG 800 Financing | Financing costs were removed from KG 700 and given their own group. |
| Consolidation of the separate standards | Building and civil engineering receive a uniform structure within KG 300 and KG 400. |
| Extension of KG 500 | It now covers both external works belonging to buildings and independent open spaces. |
| New stage Kostenvoranschlag | It precedes the Kostenanschlag and serves decisions on procurement and construction. |
The first change acts directly at fee level. Anyone structuring under the 2018 edition and deriving chargeable costs from it carries financing in a cost group that does not exist in the governing edition. Since neither KG 700 nor KG 800 is chargeable the result is unchanged here, but the structures do not correspond.
More weighty are the shifts within cost groups 300 and 400, where over 240 cost groups were reworked. Individual items moved between groups, and the boundary between building fabric and technical installations was redrawn in places. That boundary is precisely what governs application of the special rule for building services, and therefore the size of the fee basis.
Building a determination that satisfies both
The workable approach is to prepare one determination and document a reconciliation, rather than maintaining two separate determinations. Two separate determinations double both the effort and the sources of error.
- Prepare the cost determination under the 2018 edition. It is the current standard, it compares with published benchmarks, and it is the basis for cost control during the project.
- Maintain a reconciliation table for the fee-relevant items. It maps items of building fabric and technical installations onto the 2008 structure. Reconciliation at the level where chargeability is decided is sufficient.
- Record the mapping, not only the result. The client must be able to follow which item sits in which group. A traceable reconciliation is the most effective protection against the objection of unverifiability.
- Name the edition in the contract. Which edition underlies the cost determination and which the fee determination belongs in the agreement, not in a subsequent argument.
The fourth point is the most effective and the least often implemented. Disputes about the governing edition almost always arise later, at final account stage, and almost always because nothing was agreed beforehand.
A worked example of the effect
Shifting individual items between building fabric and technical installations does not act symmetrically, because the special rule for services works from a threshold. A simplified example shows the direction.
Take a scheme with €3,000,000 of building fabric and €1,200,000 of technical installations, both net and with no existing fabric incorporated. The example shows the effect of the threshold rule.
| Step | Calculation | Amount |
|---|---|---|
| Other chargeable costs | building fabric | €3,000,000 |
| The 25 per cent threshold | 3,000,000 × 0.25 | €750,000 |
| Services up to the threshold | fully chargeable | €750,000 |
| Services above the threshold | 450,000 × 0.50 | €225,000 |
| Total chargeable costs | sum | €3,975,000 |
If an item of €200,000 now moves from building fabric into technical installations under the redrawn boundary, the threshold falls to €700,000 and the portion above it grows. Chargeable costs come out lower, even though construction costs are unchanged.
The magnitude is project-dependent and deliberately modest in this example. What matters is the direction: on schemes with a high services content, the allocation question can shift the fee basis noticeably, and it does so without any change to the building.
What this means for the contract
Three points follow that belong in a fee agreement and rarely appear there. They take a few lines to draft.
The governing edition for each level. Which edition underlies the cost determination and which the determination of chargeable costs. Separating them is permissible and substantively appropriate.
How reconciliation is handled. Whether a reconciliation table is owed and at what depth. It represents effort and should be identified as such.
How allocation questions are settled. A procedure for the case where allocation of an item between building fabric and technical installations becomes contentious is easier to agree in advance than to resolve afterwards.
A special case: trade-oriented structuring
DIN 276 permits a cost determination to be structured on an execution basis, that is by trades or procurement packages rather than by building elements. This is permissible so long as chargeable costs can still be properly determined from it.
In practice that implies a constraint: where such a structure is agreed, deriving chargeable costs directly becomes harder, because trades and cost groups do not coincide. Anyone structuring by trades should therefore carry a mapping to the cost groups from the outset. The system behind this variant is covered in the article on trade-oriented cost structure.
Related articles
This article reflects the position at the date of checking and serves professional orientation. It does not constitute legal advice and does not replace assessment of the individual case.