Regarding the adjustment of unit prices in case of quantity reduction according to § 2 Abs. 3 Nr. 3 VOB/B

The Senate expressed its opinion in its judgment of 10.06.2021. The plaintiff was commissioned by the defendant to carry out clearing work, with the bill of quantities indicating a quantity of 4,500 trees to be cleared. The plaintiff was also responsible for the utilization of the cleared material and was entitled to retain the resulting proceeds. Their price offer included credits for both positions, which were deducted from the calculated unit price and based on the plaintiff’s expected proceeds from utilization. As there were only 1,237 trees on the plot to be cleared, the plaintiff requested an adjustment of the unit price, including compensation for lost proceeds from utilization. The defendant refused to pay an increased unit price.

The Senate decided that the plaintiff has no entitlement to adjustment of remuneration according to § 2 Abs. 3 Nr. 3 VOB/B. According to the wording of § 2 Abs. 3 Nr. 3 VOB/B, the original unit price is the reference value for adjustment in case of reduced quantities. Factors that are not part of the original unit price are not taken into account during adjustment. Since the expected proceeds from utilization were not part of the calculated unit price and the equivalence ratio, they did not have to be considered in the price adjustment. Neither the disclosure of the calculation to the defendant nor the inclusion of the credits in the calculation of the unit price changed this assessment. The disclosure did not make the plaintiff’s expected proceeds a consideration for the services provided.

The Senate also rejected a claim for contract adjustment according to § 313 Abs. 1 and 2 BGB. In principle, recourse to § 313 BGB is not possible if there is a contractual provision such as § 2 Abs. 3 Nr. 3 VOB/B, which constitutes a comprehensive regulation for deviations from and exceedances of quantity estimates. The Senate did not recognize any exceptional circumstances that would allow for an exception and the application of § 313 BGB.