The Award and Contract Rules for Construction Work (Vergabe- und Vertragsordnung für Bauleistungen, VOB) have been revised. Three years after the VOB 2009 became effective, the VOB 2012 is now available to the construction industry. Even though the comprehensive edition of the VOB 2012 will probably be issued only in October by the German Standardization Institute (Deutsches Institut für Normung e.V.), the changes apply to the award of construction work already now.
The VOB/A governs the award of construction work, while the VOB/B contains contract terms and conditions for the implementation of construction work.
The latest revision of the VOB/A intended primarily to simplify the application of the VOB/A in the area in which EU thresholds are reached or exceeded. This concerns Part 2 of the VOB/A, which was revised so that it is now no longer necessary to jump back and forth between Part 2 and Part 1. In the area of VOB/A, the revision of the deadline rule in Section 10 EG VOB/A and here particularly the correction of the reduced offer period, which did not correspond to the EU Award Coordination Directive in the previous VOB/A must also be emphasized.
In the VOB/B, the payment rules in Section 16 were revised. Particularly the reduction of the payment term for the final payment should be mentioned here. While the VOB/B 2009 still provided for a period of 2 months, the payment term now generally amounts to 30 days. Only if it is justified due to special substantive circumstances is the payment term extended to a period of up to a total of 60 days and only if this longer period is expressly agreed. Background for the reduction of this period is the EU Late Payment Directive of 16 February 2011, which will also require the German legislator to change the German Civil Code and other statutory provisions over the next several months. The aforementioned reduction of the payment period was the object of extensive criticism, inter alia, from the Confederation of Municipal Umbrella Associations (Bundesvereinigung der kommunalen Spitzenverbände). A payment period of 30 days for the final payment may indeed place the principal under significant time pressure. In addition, objections against the ability to review the final invoice can also be asserted only within the reduced period. The VOB principal therefore has to pay greater attention to the payment term, both when concluding the contract and when reviewing the final invoice. For a private principal, the reduced payment period may be a potential reason for either explicitly deviating from the VOB/B in respect to this issue or to forgo the application of the VOB/B entirely. This option is not available to the public principal, since the public principal is generally required to apply the VOB/B. In addition, the public principal is restricted in his ability to agree on longer payment terms through the currently planned Law Combating Late Payments in Commercial Transactions.
It remains to be seen, how the changes of the VOB/B will prove themselves up in practice.