Price law, not a law of obligations
The ordinance describes services in order to make fees calculable. It does not describe them in order to create duties.
That is more than a nuance. The services listed in the profiles are not a schedule of contractual obligations. They are not required on every project, and conversely the contractual result owed may demand services not listed there.
What is owed follows from the contract and from general contract law. What is owed there is a result, not the working through of a catalogue.
In practice: a designer who has performed all basic services of a phase has not necessarily discharged their contractual duty where the result owed is absent. And conversely a service may be dispensable although it appears in the catalogue.
The central open questions
| Question | Where it is governed |
|---|---|
| What result is owed | contract and general contract law |
| Who is liable for design errors | general contract law, contract |
| When the contract may be terminated | general contract law, contract |
| What periods apply to defect claims | general contract law, contract |
| Who holds copyright | copyright law |
| What insurance is required | state professional law, contract |
| Who may submit building applications | state building codes |
| How public procurement proceeds | procurement law |
The last two rows carry particular consequence, because they concern state law. Entitlement to submit building applications and the requirements for construction supervision under the state building codes differ between the federal states, and the HOAI says nothing about them.
The state law system is covered in the subject area on German building regulations, and procurement questions in the subject area on tendering under the VOB. The procurement questions are covered in the subject area on tendering under the VOB.
Why the service profiles still serve as the measure
A contradiction needs resolving here: the service profiles are not a schedule of obligations, and yet they serve almost universally in practice as the description of scope. The resolution lies in the legal nature of the reference.
The reason is pragmatic. They are the only normed catalogue of what a design phase customarily comprises. No other body of rules describes the course of a design process with comparable system.
A widespread and workable contractual practice follows: scope is described through the work phases, with departures expressly named. That is permissible and sensible.
What must be observed is only the legal nature of the reference. Where the service profiles are incorporated, they become contract terms by agreement, not by force of the ordinance. They then apply as far as the agreement reaches, and they are supplemented by the result owed.
Their significance has grown since 2021
One effect of the reform is rarely named: the significance of the service profiles has grown while that of the fee tables has fallen. The two movements condition one another.
While the rates bound the parties, disputes were mostly about level. Today the level is freely negotiable, and the dispute shifts to what is owed for the amount agreed.
The service profiles have thereby moved from a by-product of fee calculation to the most important normative reference point of the contract, although legally they remain no schedule of obligations. That tension has to be borne and named in the contract.
What follows for the contract
Four points need regulating because the HOAI leaves them open. The fourth is most often skipped and is economically the most significant on long construction periods.
| Point to regulate | What it must settle |
|---|---|
| The result owed | not only the work phases but the objective: which building, to what quality, within what cost frame, by when |
| Departures from the service profile | which basic services fall away, which additional services are added |
| Allocation of responsibility | particularly where services are shifted, such as detailed design to the contractor |
| Dates | the HOAI knows no deadlines for performance; without a contractual provision the general law of works contracts applies |
The reason lies in how site supervision is framed: its effort grows with the construction period while the fee basis stays fixed. Without a provision on dates the designer carries that imbalance alone.
A special case: the territorial limit
The HOAI applies only to service providers established in Germany whose services are additionally performed from within Germany. Both features must be present cumulatively.
| Situation | Application of the HOAI |
|---|---|
| Established in Germany, performing from Germany | by force of the regulation |
| A foreign practice | only by agreement |
| A German practice performing from abroad | not automatically; to be settled in the contract |
For cross-border arrangements this means its application is a matter of agreement. A foreign practice can adopt the HOAI system contractually but is not subject to it.
Conversely, a German practice providing services from abroad does not automatically fall under the ordinance. The question arises with distributed teams and should be settled in the contract.
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This article reflects the position of the rules and case law at the date of checking and serves professional orientation. It does not constitute legal advice and does not replace assessment of the individual case.