A tender fits your company, but you lack the capacity for part of the work. Or you can handle the contract professionally, but cannot meet a required reference on your own. In both cases, a partner can help. The legal requirements differ, however.
A subcontractor (Nachunternehmer) is an independent company that performs part of the contractually owed service for the main contractor. Procurement law also uses the term Unterauftragnehmer for this. Subunternehmer is another common term.
This guide mainly explains their use in supply and service contracts under the VgV (Public Procurement Ordinance). For sector procurement, Section 34 SektVO (Sector Ordinance) contains its own rules. For works contracts, check in particular the applicable VOB/A rules (German Construction Contract Procedures). The line between them and the VgV follows from Section 2 VgV.
Tell subcontractors, capacity providers and bidding consortia apart
Clarify who is offering the contract and whose capabilities the application relies on.
| Setup | Role of the partner | Consequence for preparation |
|---|---|---|
| Pure subcontractor | Performs part of the service under a subcontract | Check the share of services, naming and required documents |
| Subcontractor whose capacities you rely on | Performs services and provides capacities for the required suitability | Also prove concrete suitability and actual availability |
| Capacity provider without its own share of services | Provides, for example, economic or financial capacity | Prove the scope and availability of the support concretely |
| Member of a bidding consortium | Bids jointly with other companies | Set the joint bid, responsibilities and suitability concept |
Subcontracts and reliance on the capacities of others are governed by Section 36 VgV and Section 47 VgV. Section 43 VgV applies to groups of candidates and bidding consortia. Which proof is required in a specific procedure can be found in its contract notice and documents.
Relying on the capacities of others does not require both companies to belong to the same group. Conversely, a group connection does not replace proof that the required resources are actually available. What counts is the concrete support for the contract put out to tender.
When are you relying on the capacities of others?
If your company uses another company's capacities to prove the required economic and financial standing or technical and professional ability, Section 47 subsection 1 VgV applies. The link between the suitability criterion, the partner and the available capacity must be clear.
Fictional example: An IT service provider bids to introduce a learning platform. It meets the required references on its own and subcontracts training to a trainer for capacity reasons. At first, that is a subcontract. If, however, the tender requires specific training experience that only the trainer can prove and the bidder relies on it, reliance on the capacities of others comes into play.
For relevant professional experience and certain proof of education and qualifications, the partner must perform the service for which these capacities are needed. Contributing its name and documents is not enough. This restriction is stated explicitly in Section 47 subsection 1 VgV.
Also check whether the contracting authority has required certain critical tasks to be performed by the bidder itself or by a member of the bidding consortium. Section 47 subsection 5 VgV allows this for certain service, siting and installation tasks. So a partner cannot fill every gap at will.
When must subcontractors be named?
Under Section 36 subsection 1 VgV, the contracting authority can require, at bid submission, the planned subcontracted shares and, if reasonable, the planned companies. Before the award, it can also require shortlisted bidders to name them and prove that their required resources are available.
Read the contract notice, the references in the tender documents and the subcontractor form together. Note:
- the shares of services to be disclosed,
- the companies to be named and the respective timing,
- the declarations and evidence to be submitted with the request to participate or the bid,
- the documents only needed on request.
For proof of suitability, Section 48 subsection 1 VgV requires that the time of submission also be stated. The current rule explicitly distinguishes between the request to participate, the bid and a later request. However, a later request does not mean you should leave the partner's actual availability unresolved until then.
Which proof belongs in the partner file?
A partner file keeps the information relevant to the specific bid together. The following working list is not a statutory standard list and does not replace the forms required in the procedure:
| Document or information | Purpose | What to watch for |
|---|---|---|
| Company data and contact | Identify the partner clearly | Full company name, representation, reachable contact person |
| Defined share of services | Clarify interfaces and responsibility | Concrete work packages instead of “support as needed” |
| Required self-declarations | Check grounds for exclusion and requirements | The right declaration for this company |
| Relevant proof of suitability | Prove the assigned criteria | Content, period and scope match the requirement |
| Proof of availability | Show access to the required capacities | Resources and period match the contract |
| Internal date confirmation | Secure delivery and approval | Buffer before the external submission deadlines |
When you rely on the capacities of others, the contracting authority checks that company for the relevant suitability criteria and possible grounds for exclusion. A corresponding letter of commitment is an example named in the law of proof of availability. The basis is Section 47 subsections 1 and 2 VgV.
What a letter of commitment must actually achieve
A letter saying “We will support the bidder if awarded the contract” leaves open who provides what and when. At a minimum, clearly identify the procurement procedure, the company supported, the capacities needed and their availability for the contract.
For a partner whose experience you need for a specific task, the letter of commitment, the description of services in the bid and the actual division of tasks must match. Check the letter against the form required by the contracting authority and its formal requirements.
Have the letter confirmed in good time by the responsible person at the partner. Record internally who checked the information professionally. The resources must actually be available for the contract. A letter without a matching commitment is not enough.
Who is liable to the contracting authority?
Subcontracting does not affect the main contractor's liability. Section 36 subsection 2 VgV makes this clear. In addition, Section 278 BGB (German Civil Code) provides that an obligor is generally responsible for the fault of persons used to perform the contract as if it were its own fault.
When preparing the contract, align quality requirements, cooperation, dates, acceptance, confidentiality and the handling of defects between the main contract and the subcontract. If your customer needs a service on Monday, a partner commitment for Tuesday does not help you.
Joint liability of bidder and partner needs particular attention when economic or financial standing is borrowed. Under Section 47 subsection 3 VgV, the contracting authority can require it in line with the extent of the reliance. This does not create automatic joint and several liability for any subcontractor.
Obligations also apply along the subcontractor chain during performance. Section 36 subsection 4 VgV refers for all tiers to Section 128 subsection 1 GWB (German Act against Restraints of Competition), including obligations under labor and social security law.
What happens if the partner drops out?
Distinguish a replacement before the award from a change during contract performance. Before the award, the contracting authority requires the subcontractor to be replaced for mandatory grounds for exclusion. For discretionary grounds, it can require this. For capacity providers, failure to meet the relevant suitability criterion is an additional reason. This follows from Section 36 subsection 5 VgV and Section 47 subsection 2 VgV.
During performance, you must check contractual consent and notification duties as well as continuing suitability requirements. For certain services under direct supervision at a facility of the contracting authority, Section 36 subsection 3 VgV provides for notifications about the companies used and changes. The contracting authority can extend such duties.
If a replacement also substantially changes the public contract, Section 132 GWB is also relevant. A change of staff or partner must therefore be checked based on its concrete effects. The mere existence of a replacement company does not count as approval.
Checklist before approving the bid
- The procurement regime, scope of services and subcontracting rules are clear.
- Each partner is correctly classified as a subcontractor, capacity provider or consortium member.
- Each borrowed suitability criterion is assigned to a concrete capacity.
- Naming, forms and proof are recorded with their submission deadlines.
- The required availability is confirmed, and the shares of performance match the reliance on capacities.
- Critical tasks, liability requirements and interfaces have been checked.
- For open points, there is a responsible person and a date before internal approval.
Include this check in your bid/no-bid decision. A partner who has not yet confirmed is an open point in the decision to bid. The article What does a bid manager do? describes how coordinating proof fits into the overall process.
Frequently asked questions
What is a subcontractor?
A subcontractor is an independent company that performs part of the contractually owed service for the main contractor. Procurement law also uses the term Unterauftragnehmer for this. Subunternehmer is another common term.
Is every subcontractor also a capacity provider?
No. Reliance on the capacities of others comes into play when the bidder relies on the other company's capacities to prove the required economic, financial, technical or professional ability. Simply outsourcing work is not enough for this.
Do I have to name subcontractors in the bid already?
Check the contract notice and tender documents. Under Section 36 subsection 1 VgV, the contracting authority can require, at bid submission, the planned shares of services and, where reasonable, the companies. For shortlisted bidders, it can request further information and proof of availability before the award.
Who is liable for a subcontractor's mistakes?
Toward the public contracting authority, the main contractor remains liable. Whether and to what extent it then has claims against the subcontractor depends on the subcontract and the statutory rules.
Can I use another company's references without deploying the partner?
When relying on the capacities of others for relevant professional experience or the proof of professional qualifications named in Section 47 subsection 1 VgV, the company must perform the service for which these capacities are needed. Merely handing over reference documents is not enough.
Collect the required partner information, service commitments and proof of suitability on each procedure. In procuris, you can organize your partners and bid work in one place. The overview of GWB Part 4 explains the legal context.
Legal status checked on September 5, 2026, against the linked official versions. The case example and working lists are for illustration.