What is a Subcontractor?
A subcontractor (German: Subunternehmer, also Nachunternehmer or Unterauftragnehmer) is a company commissioned by the main contractor (e.g., a general contractor) to perform specific partial services of a public contract. The subcontractor has no direct contractual relationship with the public contracting authority.
Legal Framework
Above EU thresholds:
- § 36 VgV: Subcontracts – rules on naming and assessing subcontractors
- § 47 VgV: Reliance on third-party capabilities – when the bidder relies on subcontractor qualifications
- § 132 GWB: Contract modifications – including subcontractor changes
Below EU thresholds:
- § 26 UVgO: Subcontracts for supplies and services
- § 6c VOB/A: Subcontractors for construction contracts
Bidder's Obligations Regarding Subcontractors
When submitting a bid, the bidder must (depending on tender documents):
- Identify subcontracted services: Which parts will be subcontracted?
- Name subcontractors: Usually upon request by the contracting authority
- Commitment declaration: Confirmation that the subcontractor is willing and able
- Suitability evidence: Required when relying on subcontractor qualifications
- Exclusion grounds declaration: Subcontractors must not have exclusion grounds under §§ 123, 124 GWB
Reliance on Third-Party Capabilities vs. Simple Subcontracting
| Criterion | Simple Subcontracting | Reliance (§ 47 VgV) |
|---|---|---|
| Purpose | Capacity extension | Proving suitability |
| Evidence | On request | Mandatory with bid |
| Liability | Main contractor liable | Joint liability possible |
| Exchangeability | Generally possible | Restricted |
Wage Compliance
Particularly relevant for subcontractors:
- Minimum Wage Act (MiLoG): Applies throughout the subcontracting chain
- State wage compliance laws: Many states require adherence to sector-specific collective agreements
- The main contractor is liable as guarantor for subcontractor compliance (§ 14 AEntG)
Subcontracting Chains
In practice, subcontracting chains often form (sub-sub-contractors). Contracting authorities can limit chain depth to ensure quality, maintain control, and prevent social dumping.
Changing Subcontractors
A subcontractor change during contract execution is generally possible, but the authority must be informed, the new subcontractor must meet suitability requirements, and no change to a company with exclusion grounds is permitted.
Patterno hilft
As a subcontractor, you benefit especially from Patterno: our AI identifies not only direct tenders but also overall contracts where general contractors typically seek subcontractors for your trade. Additionally, our subcontractor agent in the construction sector supports communication between main contractors and subcontractors — from bid requests to awards.