rec_40

(40) Potential subcontractors should not be discriminated against on grounds of nationality. In the context of defence and security, it can be appropriate for contracting authorities/entities to oblige the successful tenderer to organise a transparent and non-discriminatory competition when awarding subcontracts to third parties. This obligation may apply to all subcontracts or only to specific subcontracts chosen by the contracting authority/entity. In addition, it seems appropriate to complement the tenderer’s right to subcontract with the option offered to the Member State to allow or to require its contracting authorities/entities to ask that subcontracts representing at least a certain share of the value of the contract be awarded to third parties on the understanding that related undertakings are not to be regarded as third parties. When such a share is required, the successful tenderer should award subcontracts following a transparent and non-discriminatory competition, so that all interested undertakings have the same opportunity to benefit from the advantages of subcontracting. At the same time, the proper functioning of the successful tenderer’s supply chain should not be jeopardised. Therefore, the percentage that can be subcontracted to third parties at the request of the contracting authority/entity should appropriately reflect the object and value of the contract. During a negotiated procedure or competitive dialogue with subcontracting requirements, the contracting authority/entity and the tenderers may discuss subcontracting requirements or recommendations with a view to ensuring that the contracting authority/entity is fully informed of the impact of different subcontracting options on, in particular, cost, quality or risk. In any event, subcontractors initially proposed by the successful tenderer should be free to participate in competitions organised for the award of subcontracts. In the context of defence and security markets, the Member States and the Commission should also encourage the development and dissemination of best practices between Member States and European industry with a view to promoting free movement and competitiveness in Union subcontracting markets, as well as the effective management of suppliers and SMEs, in order to achieve the best value for money. Member States should communicate to all successful tenderers the benefits of transparent and competitive tendering and supplier diversity for subcontracts, and develop and disseminate best practice on supply-chain management in the defence and security markets.

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Source: EUR-Lex (Cellar) · retrieved 2026-10-11 · Text as adopted (Official Journal); later amendments are not incorporated in this text.