Subcontractor (Subunternehmer) in Procurement Law

Subcontractor (Subunternehmer) in procurement law: company engaged by the contractor for parts of the performance. Disclosure obligation, liability. AT: BVergG 2018, DE: § 36 VgV.

Definition: A subcontractor (Subunternehmer) is a company contractually engaged by the contractor of a public contract to perform part of the contracted services and is contractually bound exclusively to the contractor, not to the public contracting authority.

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

What is a subcontractor?

In German-language procurement law, the term "Subunternehmer" is used largely synonymously with "Nachunternehmer" and refers to a company engaged by the contractor (main contractor) to perform parts of the public contract. The subcontractor has no direct contract with the public contracting authority; it is exclusively in a contractual relationship with the main contractor. The latter remains responsible to the contracting authority for the complete and proper fulfilment of the contract.

In some contexts, "Subunternehmer" is also used for multi-tier subcontracting chains, in which a subcontractor in turn engages further companies (sub-subcontractors).

Significance in the procurement procedure

Engaging subcontractors enables main contractors to deploy specialised capacities flexibly and to execute contracts for which they do not maintain all required capabilities themselves. For public contracting authorities, the subcontractor structure is an important transparency aspect: they must know who is involved in performing their contract in order to ensure compliance with minimum quality, environmental and social standards.

Disclosure obligation: Bidders must state in their bid which parts of the contract they intend to subcontract. The contracting authority may require the intended subcontractors to be named.

Suitability check: The contracting authority may extend the suitability check to intended subcontractors. If they do not meet the requirements, a replacement may be demanded.

Contractor liability: Regardless of the involvement of subcontractors, the main contractor remains fully responsible to the contracting authority for contract performance. It is also liable for defects and damages caused by subcontractors.

Difference from "Nachunternehmer"

In Austrian and German procurement practice, "Subunternehmer" and "Nachunternehmer" are used synonymously; in most standards there is no legally relevant distinction. The BVergG 2018 and VgV primarily use the terms "Subunternehmer" or "Nachunternehmer" without material difference in content. In individual cases, the term "Subunternehmer" may indicate a multi-tier subcontracting chain (i.e. companies engaged by a subcontractor in turn), but this distinction is not consistently codified.

Legal basis

The engagement of subcontractors is regulated in Art. 71 of Directive 2014/24/EU and in national procurement law.

Art. 71 Directive 2014/24/EU – Subcontracting
BVergG 2018 – Rules on subcontractors (Austria, in particular § 83a)
§ 36 VgV – Subcontracting (Germany)
§ 4 (8) VOB/B – Subcontractor rules in construction contracts (Germany)

Related terms

FAQ

Does the contracting authority have to approve subcontractors? The contracting authority may reserve the right in the contract to require approval for the use of subcontractors. Without such a contractual provision, the contractor is in principle free to use subcontractors, provided it has notified the contracting authority and no grounds for exclusion exist.

Can a subcontractor claim payment directly from the contracting authority? As a rule, no, since there is no direct contractual relationship between subcontractor and contracting authority. In Germany, however, the contracting authority may provide for a direct payment claim of the subcontractor in the contract (§ 36 (6) VgV).

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