Compared with the 2012 edition of the VOB including Supplement 2015 to the 2012 edition

1. VOB Part A (DIN 1960):
General provisions relating to the award of construction contracts
See also Foreword, page V and the notes on page 0.1.

Part A VOB 2016:

• VOB Part A, Section 1 is the version stated in the notice of 07.01.2016 (BAnz AT 19.01.2016 B3), replaced by the notice of 22.06.2016 (BAnz AT 01.07.2016 B4).
• VOB Part A, Sections 2 and 3 are the versions stated in the notice of 07.01.2016 (BAnz AT 19.01.2016 B3).

2. VOB Part B (DIN 1961):
General conditions of contract relating to the execution of construction work
See also Foreword, page V and the notes on page 0.6.

• VOB Part B is the version stated in the notice of 07.01.2016 (BAnz AT 19.01.2016), amended by Corrigendum of 21.03.2016 (BAnz AT 01.04.2016 B1).

3. VOB Part C:
General technical specifications in construction contracts (ATV)
See also Foreword, page V and the notes on page 0.7.

Notes relating to VOB Part A (DIN 1960)
General provisions relating to the award of construction contracts

The purpose of this revision of VOB/A (DIN 1960) is to implement Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement. Together with Directive 2014/23/EU (on concessions) and Directive 2014/25/EU (on public sector and utilities procurement), this directive represents a comprehensive revision of European procurement law.

On 7 January 2015 the Federal Government issued a resolution outlining the key points of the implementation into national law of the EU Procurement Directives. These key points include a structural reform of national procurement law above the EU threshold values. The procurement of supply contracts and services, including professional services, is now governed by the Vergabeverordnung (VgV) (German Ordinance on the Award of Public Contracts). This thus takes on a different nature and no longer functions as a "hinge" between the Gesetz gegen Wettbewerbsbeschränkungen (GWB) (German Act Against Restraints of Competition) and the procurement regulations. As a result, VOL/A Section 2 and the VOF are being dropped.

Most of the changes made in this revision of VOB/A have been made in Section 2. Here the provisions of European procurement law have been implemented, where they are not governed by Part 4 of the Gesetz gegen Wettbewerbsbeschränkungen or the general provisions of the German Vergabeverordnung.

The high level of detail of the EU Directives has made it necessary to expand Section 2 of VOB/A. The DVA has decided to only slightly change the structure to make the overall presentation of VOB/A more transparent. Therefore the previous subheadings are now independent subsections designated "§". To keep as many familiar aspects as possible, in the interests of users of this standard the subsections have not been renumbered; instead, the resulting additional § subsections are labelled a, b etc.

To maintain the familiar structure of VOB/A, the revisions to the structure of Section 2 have also been adopted for Sections 1 and 3.

Provisions laid down in the Gesetz gegen Wettbewerbsbeschränkungen (GWB) have been included where the DVA deemed this to be important for users of this standard. This applies particularly to the grounds for exclusion as in §§ 123 ff. GWB and changes made to the contract throughout its duration as in § 132 GWB. Although the DVA was not allowed to make other provisions in these cases, it was deemed important that they be included in the VOB/A due to their significance.

The DVA focussed on harmonization with the provisions relating to the procurement of supply contracts and services laid down in the Vergabeverordnung. For example, the provisions regarding electronic tendering have been harmonized.

In Section 3 not only has the structure been slightly changed, but a few changes in content have been made, e.g. changes to the opening of tenders - as in Section 2. Most of the remaining changes are largely editorial in nature and reflect the corresponding amendments in the Gesetz gegen Wettbewerbsbeschränkungen and the Vergabeverordnung für die Bereiche Verteidigung und Sicherheit.

Notes on the revised Section 1 of VOB/A 2016
In §4a provisions for framework contracts below the threshold are now included. These provisions are intentionally not as detailed as the very detailed provisions in § 4a EU VOB/A which are very close to the text of the Directive so as to avoid giving too much weight to such types of contract. Rather, these provisions are more in line with the corresponding provisions of § 4 VOL/A.

In the future, clients should be able to choose the means of communication used in the tendering procedure (§§ 11 ff. VOB/A). As opposed to Section 2, the DVA intentionally does not lay down the principle of electronic communication for Section 1. Not all clients and tenderers have set up an electronic process for all tendering procedures.

Up to now, § 13 VOB/A specified that the client had to allow written tenders (unlike the VOL/A) and therefore could not go completely over to electronic tender-ing. However, this only applies up to 18 October 2018, the date on which electronic tendering will be mandatory in tenders above the threshold. After this date clients can still choose the form of tenders below the threshold. They can decide whether tenders in written form will continue to be allowed, or should only be submitted in electronic form.

If clients allow written tenders after 18 October 2018, then the opening of tenders in the presence of tenderers will be carried out as before. If only electronic tenders are allowed, then the opening of tenders shall be as laid down in § 14 EU VOB/A, where the tenderer is not present but is, instead, to receive the essential information from the opening by electronic means immediately after it has taken place (see §§ 14, 14a VOB/A).

Notes on the revised Section 2 of VOB/A 2016

Re § 3a EU
Prerequisites for selection of type of award

Priority is no longer given to the open procedure. Instead, clients can choose between the open and the restricted procedures. The other procedures are only an option if the respective prerequisites for their selection are met.

It has been made easier to select the negotiated procedure with prior open participation; in return, the process is now specified in greater detail. The prerequisites for selecting the negotiated procedure without prior open participation are now given in even greater detail.

Re § 4a EU
Framework agreements

To implement the extensive provisions of the EU Procurement Directive, § 4a EU also deals with the prerequisites for concluding framework agreements when awarding construction contracts.

Re § 6b EU
Means of submitting proof of fulfilment of selection criteria

While § 6a EU stipulates the information that the contracting authority can request as proof of suitability, § 6b EU specifies how tenderers and candidates can provide this proof. The tenderer or candidate can choose whether this takes the form of a reference to his entry in the list maintained by the Verein für die Präqualifikation von Bauunternehmen e.V., (provisionally) by submitting individual proof or by submission of the European Single Procurement Document (ESPD). Contracting authorities are obliged to accept an ESPD if this is submitted. However, a company is not obliged to submit an ESPD.

Re § 6e EU
Grounds for exclusion

VOB/A reiterates the grounds for exclusion given in §§ 123 and 124 GWB. The familiar differentiation between compulsory and non-compulsory grounds for exclusion remains applicable here. § 6e EU clause 6 (7) (corresponding to § 124 (7) GWB) for the first time stipulates in detail the conditions under which a com-pany can be excluded owing to poor performance on a previous occasion. The list of grounds for exclusion, as in the EU Directive, is final. In the second section of VOB/A there is no provision for exclusion on the grounds of unreliability.

Re § 6f EU – Self-cleaning

§ 6f EU – reiterating § 125 GWB – stipulates the conditions under which a com-pany can “self-clean” following previous misdemeanours. In the procurement procedure, the contracting authority is obliged to evaluate the self-cleaning measures itself, according to § 6f EU clause 2.

Re §§ 10 EU ff. – Time limits

VOB/A has adopted the shortened tendering period stated in the EU Directive and continues to permit the familiar possibilities of shortening time limits in urgent cases. It is always necessary to check individually that the minimum time limits stated in §§ 10a EU ff. are appropriate. It is explicitly stated that these are not mandatory time limits.

The tendering period no longer expires once the first tender is opened. It now ends at the end of a specified time limit.

Regarding the matter of how much time the contracting authority has to examine and evaluate the tenders received, VOB/A now talks about the binding period instead of the examination period, as was previously the case. The binding period fixed by the contracting authority is normally 60 calendar days.

Re § 11 EU – Principles of communication of information

§ 11 EU specifies the prerequisites for conducting the procurement procedure by purely electronically means. The transitional provisions given in § 23 EU give the contracting authority the right to postpone the introduction of electronic procurement. According to procurement law, the contracting authority may use electronic procurement for contracts above the EU threshold. After expiry of the transition periods it will, with a very few specifically mentioned exceptions, be obligatory to conduct the entire procurement procedure online.

According to § 11 EU clause 6, the contracting authority can require that each enterprise submit a unique company name and electronic address (registration). However, contracting authorities shall not make registration obligatory merely to consult the contract notice and procurement documents. Voluntary registration is permitted at all times, particularly in order to enable the contracting authority to make contact with the enterprise prior to reception by of the tender or request for participation.

Re § 13 EU – Form and content of tenders

According to § 13 EU clause (1) No. 1, electronic tenders can be submitted in signed text form via the procurement platform. This is the usual case. In individual cases, the contracting authority can require that the tender is provided with an advanced electronic signature or a qualified electronic signature. However the authority shall ensure it can examine the signatures of all the candidates and tenderers, including those from other Member States.

Re § 14 EU – Opening of tenders, opening date

The procedure according to Section 2 of VOB/A, no longer provides for an opening date with the tenderers in attendance. Instead the contracting authority informs the tenderers without delay of the outcome of the submission.

Re § 22 EU – Modification of contracts during their term 

Reiterating the provisions of § 132 GWB, VOB/A stipulates the conditions under which changes made to a public contract during its term require a new procure-ment procedure. According to § 22 EU the principle applies that a new procure-ment procedure is required where substantial modifications are made to the contract.

Notes relating to VOB Part B (DIN 1961)

General conditions of contract relating to the execution of construction work

In implementing Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement into German law, the DVA decided to modify VOB/B (DIN 1961) so as not only to implement the provisions relating to public procurement from Directive 2014/24/EU in German procurement law, but also to incorporate into VOB/B the legal provisions relating to contracts laid down in Articles 71 and 73 of Directive 2014/24/EU.

Reasons for each provision are given below:

Re §4 clause (8) no. 3 VOB/B

This new wording incorporates into VOB/B the provisions laid down in Article 71 (5) subparagraphs 1, 2, 3 and 4 b) of Directive 2014/24/EU.

Re §8 clauses 4 and 5 VOB/B

The change in clause (4) reflects the addition of § 133 to the Gesetz gegen Wettbewerbsbeschränkungen (GWB) (German Act Against Restraints of Compe-tition), which implements Article 73 of Directive 2014/24/EU. The new grounds for an extraordinary termination of contract by the client as standardized here, and the legal consequences of such a termination as regards remuneration and payment of damages have been incorporated into VOB/B and integrated into the existing catalogue of grounds for termination and consequences as given in § 8.
The new clause (5) allows contractors to also terminate contracts with their sub-contractors for exceptional reasons, as soon as the client has terminated the main contract due to considerable changes to the contract or to breach of con-tract proceedings in front of the European Court of Justice, where the contractor and his contractors have agreed on a contract in accordance with VOB/B, and thus with § 8 clause (5) of this document. In this manner contractors do not have to face the legal consequence of full remuneration of their subcontractors in the case of an extraordinary termination of contract. The same possibility is given to all clients along the subcontracting chain wherever agreement has been made according to VOB/B (DIN 1961).

Re § 4 clause (7), clause (8) no. 1, § 5 clause (4) and § 8 clauses (3) and (4) VOB/B

The purely editorial alteration of the terms "withdrawal of the contract" and "with-draw", and their replacement with "termination of the contract" and "terminate" has unified the terminology in VOB/B relating to contract termination. The previ-ous use of different terms had no legal relevance.

Notes relating to VOB Part C
General technical specifications in construction contracts (VOB/C)

VOB/C comprises the general technical specifications in construction contracts (ATV), which are also published as DIN Standards. The documents in VOB/C are routinely reviewed and updated in order to keep abreast of technical develop-ments. 15 documents have been technically revised. A total of 48 documents have been editorially revised. A new document, DIN 18329 “Management of road safety measures at road works” has been included. The content of the former DIN 18367 “Laying of wood block flooring” has been integrated in DIN 18356. This revised DIN 18356 now has the title “Laying of parquet flooring and wood block flooring”. DIN 18333 “Cast stone works” has been left unchanged.

The reference to VOB/A has been updated in Clause 0 of all the documents in Part C. The specification of works is now dealt with in §§ 7 ff., §§ 7 EU ff. and §§ 7 VS ff. VOB/A, and no longer in § 7, § 7 EC and § 7 VS VOB/A.

The status of each standard is indicated in the index by a symbol before its number.

Key:

(F) = The document has been technically revised to reflect developments in the construction sector; the references to standards have been updated and are current to 2016-04 (DIN 18334 current to 2016-07).
(R) = The document has been editorially revised; the references to standards have been updated and are current to 2016-04.
(V) = The references to VOB/A, VOB/B and VOB/C have been updated; no other changes have been made. The references to other standards have not been updated. Information on any changes to documents referred to in the standards is given in the (German language) quarterly journal "VOBaktuell" (available at http://www.vobaktuell.de).
(N) = The document has been published for the first time and is new to the VOB.
(Z) = Withdrawn.