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Public procurement subcontracting: requiring contractor to execute main part of contract is, in principle, unlawful

27/04/2017

A provision, which states that where subcontractors are invited to carry out a public contract, the main part, as defined by the contracting entity, must be performed by the successful tenderer himself (and thus not by the subcontractor), breaches EU law. Furthermore, a contracting authority is not allowed to demand that, in circumstances in which a tender is submitted by a consortium, the contribution of each member of the consortium in order to satisfy the requirements for professional capacities corresponds proportionally to the share of the works they will actually carry out if the relevant contract is awarded to them, if this is a pure “arithmetic” requirement.

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Authors

Portrait ofYouri Musschebroeck
Youri Musschebroeck
Senior Associate
Brussels
Portrait ofFlore Verhoeven
Flore Verhoeven
Associate
Brussels