Subcontract in Public Procurement 2026 – Use of Subcontractors in Public Contracts

Definition: A subcontract is the contract by which a contractor (main contractor) passes parts of a public contract to a third party (subcontractor), while remaining responsible to the contracting authority for the proper performance of the overall contract.

Last updated: January 2026 · Legal status: Art. 71 Directive 2014/24/EU, § 36 VgV, § 4 (8) VOB/B, § 26 VOB/A, §§ 83–86 BVergG 2018

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What is a subcontract?

The subcontract is the contractual basis for passing parts of a public contract to third parties and is a routine instrument in practice that allows large main contractors to have specialist part-services performed by specialist undertakings. At the same time it sits in tension with the principles of transparency and suitability: the contracting authority has a legitimate interest in knowing who actually performs the contract and whether the subcontractors also have the necessary suitability.

Notification and approval duties

In most procurement procedures the tenderer must indicate already in the tender which parts of the contract it intends to pass to subcontractors. The contracting authority may further require the names of the planned subcontractors to be given so that their suitability can be checked. Changes in the subcontractor chain during contract performance are regularly subject to a duty of notification or approval.

Suitability check of subcontractors

Where a tenderer relies on the capacities of subcontractors to demonstrate its own suitability (reliance on third-party capacities), the subcontractor must meet the same suitability requirements as the tenderer itself. For the parts of the contract that the subcontractor takes on, its suitability must be specifically demonstrated. Grounds for exclusion affecting the subcontractor may have repercussions for the main contractor.

Liability of the main contractor

The contractor remains fully responsible to the contracting authority for the proper performance of the contract, regardless of how much it has passed to subcontractors. It cannot exculpate itself by reference to a subcontractor's fault. In its internal relationship it can seek recourse from the subcontractor.

Limits on the use of subcontractors

Contracting authorities may prohibit the passing of the entire contract to subcontractors and require the main contractor to perform certain essential parts of the contract itself. This is particularly sensible for services requiring special qualifications which the contracting authority has assessed in the main contractor.

Direct payment obligation

In some national legal systems, or by order of the contracting authority, payments may be made directly to subcontractors where the main contractor fails to comply with its payment obligations. Art. 71 (3) of Directive 2014/24/EU allows such a national rule.

FAQ

Must a tenderer name all subcontractors already in the tender? Not necessarily, unless the contracting authority expressly requires it. At minimum the scope of the planned use of subcontractors must usually be stated.

Can the contracting authority reject a particular subcontractor? Yes, where the subcontractor does not meet the suitability requirements or where a ground for exclusion applies. The contracting authority must then require the main contractor to replace the subcontractor.

Is passing the entire contract to a subcontractor permissible? In principle no, where the contracting authority has excluded this or where wholesale subcontracting is incompatible with the nature of the contract. Wholesale onward transfer may also be regarded as abusive.

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Last updated: January 2026 All information provided without warranty. For legally binding advice, consult a law firm specialising in public procurement law.