Directive 2009/81/EC of the European Parliament and of the CouncilShow full title

Article 21 Subcontracting

1. The successful tenderer shall be free to select its subcontractors for all subcontracts that are not covered by the requirement referred to in paragraphs 3 and 4, and shall in particular not be required to discriminate against potential subcontractors on grounds of nationality.

2. The contracting authority/entity may ask or may be required by a Member State to ask the tenderer:

• to indicate in its tender any share of the contract it may intend to subcontract to third parties and any proposed subcontractor, as well as the subject-matter of the subcontracts for which they are proposed; and/or,

• to indicate any change occurring at the level of subcontractors during the execution of the contract,

3. The contracting authority/entity may oblige or may be required by a Member State to oblige the successful tenderer to apply the provisions set out in Title III to all or certain subcontracts which the successful tenderer intends to award to third parties.

4. Member States may provide that the contracting authority/entity may ask or be required to ask the successful tenderer to subcontract to third parties a share of the contract. The contracting authority/entity that imposes such subcontracting shall express this minimal percentage in the form of a range of values, comprising a minimum and maximum percentage. The maximum percentage may not exceed 30 % of the value of the contract. Such a range shall be proportionate to the object and value of the contract and the nature of the industry sector involved, including the level of competition in that market and the relevant technical capabilities of the industrial base.

Any percentage of subcontracting falling within the range of values indicated by the contracting authority/entity shall be considered to fulfil the subcontracting requirement set out in this paragraph.

Tenderers may propose to subcontract a share of the total value which is above the range required by the contracting authority/entity.

The contracting authority/entity shall ask tenderers to specify in their tender which part or parts of their offer they intend to subcontract to fulfil the requirement referred to in the first subparagraph.

The contracting authority/entity may ask or may be required by a Member State to ask tenderers also to specify which part or parts of their offer they intend to subcontract beyond the required percentage, as well as the subcontractors they have already identified.

The successful tenderer shall award subcontracts corresponding to the percentage which the contracting authority/entity requires it to subcontract in accordance with the provisions of Title III.

5. In all cases, where a Member State provides that contracting authorities/entities may reject the subcontractors selected by the tenderer at the stage of the award procedure of the main contract or by the successful tenderer during the performance of the contract, such rejection may only be based on criteria applied for the selection of the tenderers for the main contract. If the contracting authority/entity rejects a subcontractor, it must produce a written justification to the tenderer or the successful tenderer, setting out why it considers that the subcontractor does not meet the criteria.

6. Requirements referred to in paragraphs 2 to 5 shall be indicated in the contract notices.

7. Paragraphs 1 to 5 shall be without prejudice to the question of the principal economic operator’s liability.