Subcontractor in Public Procurement Law

Subcontractor in public procurement law: company to which parts of the contract are passed on. Disclosure duty, suitability check. Art. 71 Directive 2014/24/EU, § 83a BVergG 2018.

Definition: A subcontractor is a company that is engaged by the contractor of a public contract to perform certain parts of the contractually assumed services, without itself being in a direct contractual relationship with the public contracting authority.

Last updated: January 2026 · Legal basis: Art. 71 Directive 2014/24/EU, § 83a BVergG 2018, § 36 VgV

What is a subcontractor?

The subcontractor is in a contractual relationship not with the contracting authority, but with the contractor (main contractor), who engages the subcontractor to perform part of the public contract. The main contractor remains fully responsible to the contracting authority for the proper performance of the entire contract – including the parts performed by subcontractors. This liability structure fundamentally distinguishes the subcontractor from members of a bidding consortium, who are all direct contractual partners of the contracting authority.

The terms "Nachunternehmer" and "Subunternehmer" are often used synonymously in German-speaking procurement law, although there may be terminological differences in some national regulations.

Significance and function

Engaging subcontractors enables contractors to source specialised services from specialist companies and thus to perform complex contracts for which they themselves do not possess all the capacities or qualifications. This promotes competition and also enables small and medium-sized enterprises to participate as subcontractors in the performance of public contracts.

For the contracting authority, engaging subcontractors is generally permissible, provided no restrictions have been laid down in advance. However, the contracting authority may require that critical tasks or a certain proportion of the services be performed by the contractor itself (Art. 63 para. 2 Directive 2014/24/EU).

Disclosure duty and suitability check

Bidders are obliged to indicate in their bid which parts of the contract they intend to pass on to subcontractors and, at the request of the contracting authority, to name the envisaged subcontractors. Art. 71 para. 2 Directive 2014/24/EU enables the contracting authority to require bidders to provide information on subcontractors.

The contracting authority may extend the suitability check to envisaged subcontractors (§ 83a BVergG 2018). If a subcontractor does not meet the suitability criteria or grounds for exclusion exist, the contracting authority may require that the contractor use a different subcontractor.

A subsequent change of subcontractors generally requires the consent of the contracting authority and is only permissible under strict conditions.

Direct payment claim (Germany)

In Germany, under § 36 para. 6 VgV, contracting authorities may stipulate that subcontractors – upon falling due and non-payment by the main contractor – have a direct payment claim against the contracting authority. This rule protects subcontractors against payment defaults by insolvent main contractors and strengthens their position in the procurement chain.

Distinction from reliance on third-party capacities

To be distinguished from subcontracting is reliance on third-party capacities (Art. 63 Directive 2014/24/EU), whereby a bidder draws on the capacities of another undertaking in order to meet the suitability requirements of the contracting authority. In the case of reliance on third-party capacities, the lending entity must prove that the necessary resources are actually available. Reliance on third-party capacities is more strictly regulated than the mere passing on of parts of the services to subcontractors.

Legal basis

The subcontracting topic is regulated in Art. 71 of Directive 2014/24/EU and specified in the national procurement laws of Austria and Germany.

Art. 71 Directive 2014/24/EU – Subcontracting
Art. 63 Directive 2014/24/EU – Reliance on third-party capacities
§ 83a BVergG 2018 – Subcontractors (Austria)
§ 36 VgV – Subcontracts and subcontractors (Germany)
§ 4 VOB/B – Subcontractor provisions in the construction contract (Germany)

Related terms

FAQ

Can the contracting authority completely prohibit the awarding of subcontracted services? No. A general prohibition on awarding contracts to subcontractors would be disproportionate. However, the contracting authority may stipulate that certain critical tasks must be performed by the contractor itself (Art. 63 para. 2 Directive 2014/24/EU).

Is the main contractor liable for errors of the subcontractor? Yes. The contractor is fully liable to the contracting authority for the proper performance of the entire contract, including the parts performed by subcontractors. Any recourse claims against the subcontractor are an internal matter between main contractor and subcontractor.

What happens if a designated subcontractor does not meet the suitability requirements? The contracting authority may require the bidder to replace the unsuitable subcontractor. If the bid is significantly dependent on that subcontractor and no suitable replacement can be found, the contracting authority may exclude the bid.

Last updated: January 2026 All information without guarantee. For legally binding information, please consult a law firm specialising in procurement law.