There is seasonal plumbing
How do I generally behave when I am with the customer?
According to experts, compliance with the coughing and sneezing rules, good hand hygiene and keeping your distance (ideally 2 meters) protect against the transmission of the new type of corona virus (as with influenza and other respiratory diseases). Shaking hands should definitely be avoided. If possible, regular ventilation should be provided.
The DGUV has summarized measures and procedures for craftsmen in customer service in a press release:
Incidentally, the regulations of the SARS-Cov-2 occupational health and safety ordinance naturally also apply here (see also "Which occupational safety / preventive measures are useful in the company? What must be taken into account in the risk assessment?").
The ZVSHK hygiene code
SHK guild operations can show how you can protect your customers and your employees from a COVID19 infection! For this purpose, the SHK organization has drawn up a ZVSHK hygiene code: After the master craftsman has made a binding self-declaration on the conditions below, the specialist company receives confirmation in the form of a certificate and access to the associated information and advertising material.
Further information at: https://www.zvshk.de/hygienekodex/
Does it make sense to wear a face mask to protect against acute respiratory infections?
The most important and effective measures for personal protection and the protection of other people from contracting pathogens that cause respiratory infections are correct coughing and sneezing etiquette, good hand hygiene and keeping your distance from people who are suspected of being sick. In view of the flu epidemic, however, these measures are advisable anywhere and anytime. Wearing a face mask (e.g. a medical face mask) is seen as sensible in certain situations in public spaces in order to reduce the risk of infecting other people with droplets that occur when coughing or sneezing. Wearing such a face mask is more for external protection than for self protection (unlike FFP2 or FFP3 masks). In some cases, use in public spaces is also required, e.g. on main shopping streets, etc.
Medical mouth and nose protection must be worn in work and business premises; this does not apply at the site if a distance of 1.5 meters to other people can be safely maintained.
What should I do if a private customer requests customer service (e.g. maintenance customer service)? Do I have to or should I inquire about a possible corona risk? Does that have to be documented?
Before starting work, a risk assessment must always be carried out. This must be documented. According to the Occupational Safety and Health Act, the employer is obliged to take the necessary occupational health and safety measures, taking into account the circumstances that affect the safety and health of employees at work. He has to check the effectiveness of the measures and, if necessary, adapt them to changing circumstances. In doing so, he has to strive to improve the safety and health protection of employees. In the case of the corona virus, this also includes determining existing risks, i.e. also asking whether there is an infection or a suspected case.
A sample letter for customer inquiries can be downloaded here.
You can find further information on infection-related risk assessment as well as a template for operating instructions, for example on the pages of our cooperation partner Basiknet:
What should I do if I know that a customer is in quarantine or even has COVID-19?
If the customer calls you and gives you the information on the phone that he is ill and / or is in quarantine, you should refuse postponable orders out of concern for your employees. For contracts that have already been concluded, we believe that you have a fundamental right to refuse performance in these cases. You should then postpone the use to a point in time that is harmless to health.
If you still want / have to carry out the order, this should only be done in an extreme emergency and under massive protective measures!
At most, work on areas of danger that cannot be postponed on the building that threatens the safety of the residents can, in our opinion, justify the use of craftsmen in a building that is currently used for quarantine. For direct contact with the sick, the Robert Koch Institute requires protective goggles, a class FFP 3 breathing mask, a disposable overcoat, latex gloves and hand disinfection. In addition, the workers involved must be trained in how to put on and take off protective clothing.
However, since there is no direct contact with those affected in customer service, it is generally sufficient to keep the general hygiene and distance rules (at least 1.5 m) in order to protect employees (according to disaster control experts). The wearing of a simple mouth and nose protection by the customer and the craftsman is recommended.
If it cannot be guaranteed in advance that this distance rule will be adhered to by the customer, the use of an FFP2 respirator is sufficient as additional protection for the employees. Further protective clothing is not necessary as there is no physical contact.
If work (broken pipe, blockage, failure of electricity, gas, heating or hot water etc.) in the apartments of people who are under official corona quarantine and the guild operations do not require FFP2 due to work that cannot be postponed in the course of the operational or guild emergency service -Breathing masks are available, companies can possibly request masks for the specific activity from the responsible municipalities / health authorities (following a corresponding request letter as an example from Pforzheim).
So if you want to work in quarantine areas, we urgently recommend that you contact the local health authorities beforehand.
What should I do if an operator of a retirement home, nursing home or hospital requests customer service? Do I have to observe special hygiene regulations?
Before starting work, a risk assessment must be carried out (see under "Which occupational safety / preventive measures make sense in the company? What must be taken into account in the risk assessment?"). It should be clarified with the client / operator whether or which special hygiene regulations are to be observed. Contact with patients / residents should be avoided. The federal states have already issued decrees that all visitors must register at the entrance to the home. The registration is an important instrument for the identification of contact persons for the detection of chains of infection.
Does the client have to pay for the necessary hygiene measures as a special service?
In principle, the company should also take into account occupational safety measures when determining the price and before submitting an offer. A subsequent price adjustment due to additionally required hygiene measures is only possible in extremely exceptional cases if the contractual basis has changed significantly (§ 313 BGB or § 2 No. 7 VOB / B).
How do I behave if the (anxious) customer cancels the order due to the risk of corona infection?
There is no reason for termination “fear of infection”. If the customer's concerns cannot be allayed by explaining the preventive measures taken, then - as far as possible - postponing the implementation should be considered. In this case, it should be checked whether the client has to assume any additional costs.
Can retail stores and (bathroom) exhibitions remain open to customers?
Since December 16, 2021, most shops across Germany - regardless of the size of the shop - have to be closed again. Insofar as shops are allowed to remain open due to their importance for the general interest of the population, hygiene and distance regulations must of course be observed. It should be noted that under the stricter regulations in November 2020, a mask is also required in front of retail stores and in parking lots. The Federal Government, for example, offers an overview of the various regulations here:
In the case of the emergency brake regulation of the Federal Infection Protection Act (see "When do the" Emergency Brake Regulations "of the Infection Protection Act apply?"), The opening of shops and markets with customer traffic for commercial offers is prohibited.
What are the civil law consequences of service failures on contracts with customers and suppliers?
Delivery bottlenecks for products and sometimes considerable staff shortages cannot be ruled out. Obligations from already concluded construction contracts can therefore only be fulfilled in exceptional cases with enormous delays and thus contractual services cannot be provided as owed. In particular, there may be delays and thus delays under civil law. However, liability for the consequences of a delay in performance presupposes fault (intent or negligence). The outbreak of an epidemic is generally assessed as force majeure and can certainly rule out the fault of the service provider for delays. However, a general assessment is not possible. Rather, it depends on the circumstances in the individual case. Inform your contractual partner immediately about this situation. In the case of a VOB contract, disability should be indicated accordingly.
In addition, the company should follow the recommended precautions against the spread of infection. Otherwise, the accusation of negligent (co-) causing a business closure is difficult to dispel. In addition, an exclusion of fault and thus liability for any damage caused by delay on the part of the customer should only be enforceable in cases in which the contract was already concluded before the outbreak of the epidemic. In view of the spread of the virus, operational impact is not unlikely, performance failures may be foreseeable and the delay thus occurred negligently. In the event that a material supplier fails temporarily, a certain amount of material should also be available in the company, at least for the fulfillment of existing contracts.
Furthermore, no additional no-fault performance promises, such as further guarantees or no-fault contractual penalties, may have been agreed. Such agreements apply independently and qualify the epidemic as force majeure.
If a craft business is actually affected by its own business closure due to the corona virus or the closure of a supplier, it is always advisable to inform contractual partners about the situation immediately and, if necessary, to agree new performance targets. With regard to the conclusion of new contracts, no-fault contractual penalties or guarantees should be avoided. In addition, craft businesses should find out about the availability and origin of the material from their material suppliers.
Can I be released from contractual performance obligations?
Basic performance obligations of the respective contracting party could be restricted or even omitted due to the corona pandemic. According to the legal situation, this is always the case when the performance is actually impossible for the debtor. Furthermore, the debtor can refuse performance if the effort is grossly disproportionate to the performance interests of the obligee. However, the hurdles are quite high here. In addition, claims for damages can also be considered. The debtor is not obliged to pay compensation in the event of impossibility of performance, provided that the debtor has taken everything reasonable to prevent the loss of performance. Measures for this include, for example, informing the contract partner at an early stage, taking all precautionary measures, in particular looking for alternative sources of supply, transport routes, production capacities and subcontractors.
In addition to the impossibility of the performance obligations, a disruption of the equivalence ratio in accordance with Section 313 of the German Civil Code (BGB) can also lead to a right to amend the contractual conditions.
After the December resolution, the legal presumption that significant (usage) restrictions as a result of the Covid-19 pandemic could represent a serious change in the basis of business applies to commercial leases that are affected by state Covid-19 measures. This simplifies negotiations between commercial tenants or tenants and owners.
What effects does the corona crisis have on procurement procedures?
According to a decree by the Federal Ministry of Construction, trades ready for tender can still be awarded. Planning is to be continued and further construction projects to be put to tender.
In order to ensure that procurement procedures are carried out quickly and efficiently, the BMWi had already ordered the facilitation of negotiation procedures without a competition due to particular urgency in the area of supplies and services in a decree of March 19, 2020. Analogous to this, due to a decree by the Ministry of Construction, in the current situation of the spread of the coronavirus, construction services in particularly stored cases should also be awarded quickly and efficiently. This applies to construction contracts that serve to contain the COVID-19 pandemic. For example, the following can be considered for this: Short-term creation of additional capacities in the hospital area, conversions and equipment to increase the number of video conference rooms, installation of partition walls to separate multiple occupied offices. The list is expressly not exhaustive, but it is crucial that the construction contracts serve to contain the pandemic.
From June 9, 2020 to December 31, 2021, further simplifications have been made for federal award procedures:
- For delivery and service contracts up to a value limit of 100,000 euros without sales tax, simplified and faster award procedures can be carried out (in particular, negotiated awards without a competition).
- For construction contracts, this limit is up to 1 million euros excluding sales tax.
- The values for direct orders for goods and services are increased from 1,000 to 3,000 euros and for direct orders for construction services from 3,000 to 5,000 euros. Here, the contracting authority can place the order directly without having to conduct a formal procurement procedure beforehand.
- The deadlines for the submission of tenders and requests to participate can be shortened more easily.
The underlying "Binding guidelines for the federal administration for the award of public contracts" can be found under the following link:
What about corona-related additional costs in construction (VOB part B)?
The effects of the COVID-19 pandemic also lead to additional costs in the construction contract on both sides of the contractual relationship. In addition to additional costs for the client (e.g. costs for replacement accommodation that is required for a longer period due to construction stoppages or delays), the contractor also incurs additional costs. Think of those through compliance with stricter hygiene and health protection measures (separate journeys to the construction site, adaptation of the social areas and the like), downtime or delay costs (storage costs for construction equipment and the like) and others (e.g. increased material prices due to disrupted supply chains). On the other hand, cost reductions can also be observed, e.g. lower fuel prices or lower steel prices.
In view of the concept of cooperation on which the VOB / B is based, in order to maintain an appropriate balance of interests between the contracting parties for the exceptional situation of the COVID-19 pandemic in the area of federal building, Section 4 Paragraph 1 Number 1 VOB / B is therefore also interpreted as meaning that the pandemic affecting the contractor Additional hygiene and health protection measures that are spatially related to the construction site, serve the federal interest after ensuring an undisturbed construction process and are therefore to be regarded as a measure in terms of costs within the meaning of Section 4 Paragraph 1 Number 1 VOB / B.The cost-related participation of the public building owner, the federal government, in the additional costs of the contractor caused by the pandemic, which follows from this interpretation, also takes into account the public interest in the most undisturbed progress of public construction measures as well as the fact that the circumstances aggravating the construction process are largely based on public orders, and thus the public sector as the original user of the VOB / B is particularly responsible.
What special features have to be considered in future public tenders with regard to the COVID-19-related additional costs?
In the case of construction contracts that are concluded on the basis of award procedures initiated in the future, the actually required costs for the hygiene and health protection measures finally listed in the new form "COVID-19 related additional costs" must be reimbursed. Costs are only reimbursed insofar as they are within the usual market framework. The bidders should therefore not factor in additional hygiene and health protection measures beyond the building overhead costs (BGK) or calculate flat-rate prices without these additional costs. According to the above, the costs of the additional hygiene and health protection measures are deliberately not subject to competition. This procedure ensures the profitability of the contract award. It prevents companies from calculating costs for periods that are only limited by the contract term, but not by actual needs, or calculating costs via risk surcharges in order to cushion feared further waves of infection. As a result, the client would be charged costs for such hygiene measures beyond the actual time required via the BGK for long-term construction contracts. To reimburse the additional costs, the new form "COVID-19 conditional additional costs" must be attached to the tender documents, which is available here:
This must be included in the invitation to tender and in the "List of documents to be submitted in the procurement procedure" form. Proof is preferably provided by submitting invoices. To explain the causality between the additional costs and the COVID-19 pandemic and the relation of the additional costs incurred to the specific construction site, a self-declaration by the contractor is sufficient in case of doubt. A plausibility check, e.g. on the basis of construction diaries or construction day reports on the workers deployed on the construction site, should be carried out. The hygiene items invoiced must always be used on the construction site. The contractor must also be reimbursed for the costs that a subcontractor asserts against him under the same conditions.
Can COVID-19-related additional costs also be reimbursed for ongoing public procurement procedures?
Yes. In the case of procurement procedures in which the deadline for submitting offers has not yet expired, the "COVID-19-related additional costs" form must be forwarded to all participants in the procedure and requested to be returned with the offer (see link under 2.13) . If necessary, the offer period is to be extended. The above statements apply to the requirements for proof of the additional costs. In the case of award procedures in which the bidding period has already expired, a declaration of the type and scope of the hygiene and health protection measures contained in the bid must be requested from the bidder intended for the award, taking into account the subcontractors he intends to use. The declaration must be checked against the information in the calculation or the price determination sheets. Only those costs for the above-mentioned hygiene and health protection measures will be reimbursed that go beyond the costs already calculated.
Can COVID-19-related additional costs be reimbursed in existing public building contracts?
In existing construction contracts, the contractor must be reimbursed for the COVID-19 pandemic-related additional costs in accordance with the above. If it is not always possible to clearly distinguish the costs incurred anyway, a decision in favor of the contractor must be made in case of doubt. For the reimbursement of costs, it is irrelevant whether a unit price or a flat rate contract has been concluded and whether the additional cost-causing measure is taken on the contractor's own responsibility or ordered by the client or a third party commissioned by him in accordance with Section 4 BaustellV. It is crucial that the additional costs could not be calculated in the offer. The above statements apply to the requirements for proof of the additional costs.
What should be done if current certificates cannot be submitted in procurement procedures?
If companies cannot provide certificates issued by third parties (e.g. clearance certificates) in due time despite having applied for them in good time because the issuance has been delayed as a result of the COVID-19 pandemic, a self-declaration that the requirements for the issue continue to exist must be permitted instead of the certificate, if all of the following conditions are met:
- A recently expired certificate can be presented.
- There are no reasonable doubts that the company has fulfilled its obligations for issuing the certificate even after the expiry of the validity.
- The application for issuing the required certificates must be attached to the self-declaration. The submission of an application is not necessary if the issuing body has obviously ceased its activity temporarily.
For the continuation of the prequalification of companies that cannot submit the following evidence in time due to the corona pandemic, the guideline will be temporarily amended:
- Exemption certificate according to § 48b EStG
- SOKA BAU release certificate
- Clearance certificate BG Bau
- Business registration, excerpt from the commercial register, entry of the trade register
With regard to this evidence, the company can first submit a corresponding self-declaration and the submission of the application for the issuance of the evidence. This ensures that the company can continue to be listed in the prequalification directory despite the lack of evidence. In this case, the company will not be removed from the PQ list until the certificate (s) are submitted, for a maximum of three months.
Can I get a certificate of unclearness from the health insurance company if the contributions have been deferred?
When awarding public contracts, bidders require a clearance certificate from the responsible health insurance companies. This provides information about the respective health insurance company, the number of insured persons of the respective company with the health insurance company and contains the confirmation that all contributions have been paid by the respective company. However, if social contributions are initially not paid as a result of the deferral, a clearance certificate cannot generally be issued.
The National Association of Statutory Health Insurance Funds is now proposing that the health insurance companies issue limited clearance certificates in these cases. So that the concerns of employers and companies can be taken into account, but also the actual circumstances in the payment of contributions are documented, the clearance certificates should be based on an earlier point in time if the other requirements are met and have a corresponding addition. For example, the addition could read: "Until the outbreak of the corona pandemic in Germany in March 2020, the social security contributions were paid regularly and punctually on the respective due dates."
Are offer periods / contract periods adjusted in the award procedure?
According to the Federal Building Ministry, as far as the deadline for the construction project allows, the tendering documents and, if applicable, the contractual deadlines (e.g. start of the construction project) will be adjusted to the current situation in order to maintain the competition Deadline for all companies to be postponed to the same extent. The same applies to requests to participate and discussions in negotiation procedures.
What should I do if I am disabled in the execution of my contract (especially in the VOB contract)?
Any hindrance to the proper execution of the service must be reported to the client immediately in writing (Section 6 VOB / B).
The execution deadlines can be extended if the hindrance is caused by force majeure or other circumstances inevitable for the contractor. But be careful: the facts are interpreted narrowly. Circumstances are only inevitable for the contractor if they are unpredictable from human understanding and experience in the sense that they or their effects are not prevented by the utmost care or their effects are rendered harmless to an acceptable level despite the use of economically acceptable means can.
We have provided sample formulations for notification of disabilities in ongoing contractual relationships for you under the following link.
With regard to the notification of disability, we have differentiated between the BGB contract and the VOB contract. In the VOB contract, there is a regulation in Section 6 VOB / B, to which the sample formulation is tailored. There is no statutory provision in the BGB contract. According to the local assessment, § 313 BGB (discontinuation of the business basis) and a consequent claim to contract adjustment should be based on this. Therefore, this sample formulation provides for a new execution date to be agreed.
What about larger assignments that are about to be signed?
If contracts for longer construction projects are about to be signed, no-fault contractual penalties or guarantees should be avoided in any case. Rather, an individual agreement should be made - if possible - according to which liability for obstacles to performance in connection with COVID 19 is excluded. It should be noted here that the requirements for the existence of an individual agreement are quite high. Discuss the current problem with your contractual partner and in any case use a separate document that is signed by both parties.
A clause for inclusion in contracts to be concluded now can be downloaded from the following link. This model clause for new contracts to be concluded is based almost literally on Section 6 Paragraphs 1-4 VOB / B, which, to the best of our knowledge, can also be agreed individually in accordance with general terms and conditions.
Information from the Federal Ministry on the continuation of construction work, handling of construction disruptions and handling payments
Further information is contained in a decree of the Federal Ministry of the Interior, for Building and Home Affairs of March 23, 2020 on the continuation of construction work, handling of construction disruptions and handling of payments, which you can download here:
PDF download for "Continuation of the construction work"
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