This Master Thesis investigates and evaluates the legal framework for engineering firms to step into an ARGE partnership with other planning offices. ARGE, in German construction industry an established form of partnership, becomes more and more important in acquiring and accomplishing construction projects.
ARGE underlies the regulations of the German Partnership under Civil Law. Consequently the ARGE partners are jointly and several liable for the contract to produce a work with the principal. Thus the principal reaches fundamental advantages: He reduces his risk concerning insolvency of an ARGE partner, he increases competition and he gets services from one hand.
Engineering firms, who want to participate in these projects, have to handle their capacities and risks. Engineering firms are not interested in participating in ARGE partnerships. There is no reason for voluntary sharing of liability. Engineering firms want to be responsible and liable only for services they accomplish. They do not want to share the responsibility and liability with other construction planners.
In external relationship with the principal, ARGE partners could not change the jointly and several liability.
Principals will not deal about limitation of ARGE partners’ liability. However in internal arrangements could be defined other regulations.
Beside the contract with the principal is the partnership agreement equally important. The ARGE agreement has to define the purpose of the partnership, the bodies of the partnership with their responsibilities and the services the partners have to accomplish for the ARGE. Partners have to be careful concerning liability. Partners should ensure in internal relationship that they are only responsible for services they had accomplished.
It is advisable to define other regulations in the ARGE agreement than the terms in law. For example, partners should define a fulfilment obligation, due to claim for damages by the
principal. In case of insolvency of one partner, the other partners have still to fulfil the contract with the principal. If there are services they cannot carry out by themselves, they
have to integrate other partners.
Engineering firms have to weigh within the framework of their business risk, if they are interested in acquiring the contract under the precondition to participate in an ARGE partnership. Capacity utilization is just important as the choice of partner.
Table of Contents
1 INTRODUCTION
2 PROBLEM DEFINITION
3 CONTRACT RELATIONSHIPS IN CONSTRUCTION PROJECTS
3.1 CONTRACT TO PRODUCE A WORK AND SERVICE CONTRACT
3.2 ARCHITECTURE AND ENGINEERING RELATIONSHIPS
3.3 LINKAGE TO HOAI
3.4 GENERAL PLANNER
4 PURPOSE AND TYPES OF ARGE BETWEEN ENGINEERING FIRMS
4.1 PURPOSE OF ARGE
4.2 TYPES OF ARGE
5 LEGAL FORMS OF ARGE
5.1 BASIC LEGAL FORM OF ARGE: PARTNERSHIP UNDER CIVIL LAW
5.2 OTHER LEGAL FORMS
5.3 DIFFERENTIATION FROM OTHER COALITIONS
6 FOUNDATION OF ARGE FOR ENGINEERING FIRMS
7 INTERNAL RELATIONSHIP
7.1 BODIES AND THEIR TASKS
7.2 CONTRIBUTIONS AND PERFORMANCE
7.3 CONTRAVENTION
7.4 INTERNAL LIABILITY
7.5 WITHDRAWAL OR EXCLUSION OF AN ARGE MEMBER
7.6 PERFORMANCE BOND
8 EXTERNAL RELATIONSHIP
8.1 EXTERNAL REPRESENTATION
8.2 LIABILITY
8.3 INSURANCE FOR EXTERNAL RELATIONSHIPS
8.4 INSOLVENCY OF ARGE
9 CLOSING AND DISORGANIZATION OF THE ARGE
10 PARTIAL INVALIDITY OF ARGE
11 TAX TREATMENT OF THE ARGE
12 CONCLUSION
Research Objectives and Key Themes
This Master Thesis investigates the legal framework, risks, and structural requirements for engineering firms forming an "ARGE" (German construction partnership) to collectively execute large-scale construction projects. The research addresses the critical balance between meeting client expectations for integrated services from a single source and protecting the individual engineering partners from excessive joint and several liability.
- Legal classification of ARGE partnerships under German Civil Law (GbR).
- Contractual strategies for managing internal vs. external liability and responsibilities.
- Methods for dealing with partner insolvency and non-performance within the consortium.
- Analysis of the interaction between ARGE agreements, HOAI fee structures, and performance bonds.
- Tax implications and organizational best practices for temporary engineering project partnerships.
Excerpt from the Book
3.1 Contract to produce a work and service contract
Architecture and engineering contracts are not specifically regulated In German Civil Code. The German Civil Code regulates two relevant types of contracts: the contract to produce a work and the service contract. Construction, planning and consulting contracts, can be adapted to these in BGB legal regulated contract forms. The coherency to the German Civil Code is necessary to have a legal basis.
The service contract is defined in section 611 et seq. of BGB and the contract to produce a work is defined in section 631 et seq. of BGB. The two types differ fundamentally from each other, so it is very important to choose the correct type of contract.
Contract to produce a work leads engineering firms to a success-oriented, strict liability to develop a property free of defects. In contrast to contract for services the warranty period for buildings is five years. Contract to produce a work has a wide range of applications in construction. All kinds of contractual cooperation are involved, also technical systems which are integrated in the building according to sections 93 and 94 of BGB.
Summary of Chapters
1 INTRODUCTION: This chapter highlights the growing necessity of partnerships in large construction projects and introduces the ARGE model as a response to competitive requirements and risk management.
2 PROBLEM DEFINITION: This chapter outlines the inherent difficulties in building construction, specifically the fragmented roles of architects and planners, and the resulting risks in project coordination and liability.
3 CONTRACT RELATIONSHIPS IN CONSTRUCTION PROJECTS: This chapter explores the legal basis for construction contracts, emphasizing the distinction between service contracts and contracts to produce a work, as well as the role of the HOAI and the general planner.
4 PURPOSE AND TYPES OF ARGE BETWEEN ENGINEERING FIRMS: This chapter defines the motivations for forming an ARGE and distinguishes between horizontal and vertical (Dach-ARGE) partnership structures.
5 LEGAL FORMS OF ARGE: This chapter examines the Partnership under Civil Law (GbR) as the standard legal form for ARGEs and differentiates it from other forms like the limited liability company or consortiums.
6 FOUNDATION OF ARGE FOR ENGINEERING FIRMS: This chapter details the procedural steps from the initial bidding consortium (BiGe) and pre-contract to the formal establishment of the ARGE.
7 INTERNAL RELATIONSHIP: This chapter covers the organizational structure of an ARGE, including the partners' meeting, management bodies, liability issues between partners, and methods for handling non-performance or withdrawal.
8 EXTERNAL RELATIONSHIP: This chapter focuses on how the ARGE acts toward the principal, addressing representation, warranty liability, insurance, and the handling of insolvency.
9 CLOSING AND DISORGANIZATION OF THE ARGE: This chapter outlines the processes involved in dissolving the partnership after the completion of project objectives or through contract termination.
10 PARTIAL INVALIDITY OF ARGE: This chapter discusses the legal implications of faulty agreements and the role of severability clauses in maintaining partnership stability.
11 TAX TREATMENT OF THE ARGE: This chapter provides an overview of the tax obligations for ARGE partnerships, including income tax, trade tax, and turnover tax considerations.
12 CONCLUSION: This chapter summarizes the findings, reiterating the importance of written agreements to mitigate incalculable risks inherent in jointly and severally liable partnerships.
Keywords
ARGE, Construction Partnership, Engineering Firms, German Civil Code, BGB, Liability, Contract to produce a work, HOAI, Joint and Several Liability, Insolvency, Performance Bond, Partnership under Civil Law, GbR, Construction Management, Planning Services
Frequently Asked Questions
What is the primary purpose of this research?
The thesis investigates the legal and structural framework for engineering firms entering into ARGE partnerships, aiming to help them manage the risks of joint and several liability while fulfilling large-scale construction projects.
What are the central themes of the work?
The central themes include the legal form of the ARGE (GbR), the distinction between internal and external liability, contract management, partner insolvency, and organizational governance.
What is the main research question or objective?
The objective is to provide an analytical framework for how small and mid-sized engineering firms can overcome capacity limitations and meet client demands for integrated services through ARGE partnerships while navigating the inherent legal and economic risks.
Which scientific methodology is used?
The research methodology consists of desk research, literature review, verification of current jurisdiction, and expert interviews with a CEO of an engineering firm and a tax consultant.
What does the main part of the thesis cover?
It covers contract relationships, the purpose and types of ARGEs, internal management structures, external representation, handling of liability and insolvency, dissolution processes, and tax treatment.
Which keywords characterize this work?
Key terms include ARGE, Construction Partnership, Liability, HOAI, BGB, Engineering Firms, GbR, and Insolvency.
How does the "Dach-ARGE" differ from a horizontal ARGE?
In a horizontal ARGE, all partners share responsibility for the entire project. A "Dach-ARGE" or vertical ARGE divides the project into smaller, distinct packages, where partners act as subcontractors for their specific sections, thereby attempting to limit liability to their specific area of work.
Why is the "reversal of the burden of proof" crucial in construction projects?
The reversal of the burden of proof occurs at the time of acceptance of the work. Before this moment, the planner must prove their services are free of defects; after this moment, the principal must prove that the building does not fulfill the contract requirements.
What is the "infection theory" regarding Trade Tax?
In the context of ARGE tax treatment, if at least one partner is a corporation (e.g., a GmbH), the infection theory applies, meaning the entire ARGE partnership may be treated as a commercial enterprise, subjecting it to Trade Tax.
- Citation du texte
- Kenan Kaya (Auteur), 2012, ARGE – construction partnership in Germany: legal issues in cooperation of different engineering firms, Munich, GRIN Verlag, https://www.grin.com/document/196792
