B. Concept of subcontractor
Neither Directive 2014/24 / EU nor the VgV define the term subcontractor. There is also no standardized terminology. While RL 2014/24 / EU uses the term subcontractor (cf. Art. 71 Para. 1 RL 2014/24 / EU), which has now also been adopted from § 36 VgV, the terms "subcontractor" have also become and "subcontractors" are established.1 A legal definition of subcontracting can only be found in national procurement law in Section 4 (3) VSVgV. A subcontract is therefore "a contract concluded between a successful bidder and one or more for the execution of the relevant contract or parts of the contract". This definition is also similar to the common understanding of public procurement jurisprudence and literature. A third party is referred to as a subcontractor who has a direct contractual relationship with the contractor and who renders parts of the service to be contracted for him without being in a direct contractual relationship with the client
However, it is not sufficient to simply focus on “whether a bidder uses another company” 3. On the one hand, this definition does not clearly distinguish it from the aptitude loan. On the other hand, focusing on simply making use of oneself would be too extensive, since such a definition would also include all auxiliary services
However, according to the unanimous opinion, auxiliary services are not subcontractor services.5 These services are not independent partial services that the contractor would be obliged to provide to the contracting authority under the contract Mail can take place, is not classified as a subcontractor of postal service providers, since these third parties were not involved in the delivery process and thus the contractual service.7 Likewise, for this reason, suppliers are usually not subcontractors
The hiring out of temporary workers by a personnel service provider (lender) to the main contractor does not constitute a subcontracting service.9 There is no subcontracting relationship with either the temporary workers or the leasing company. The subcontractor owes the main contractor a partial service, which the latter has undertaken to provide to the contracting authority. Such a contractual relationship does not exist between the temporary worker and the main contractor or the hiring bidder, since the temporary worker remains an employee of the sending company even during the period of the loan. There is also no subcontracting relationship between the main contractor and the lender. The lessor's obligation is limited to providing the main contractor with labor. However, he is not involved in the fulfillment of the services contractually agreed between the borrower and the registration office.
Against this background, the classification of external testing services is particularly controversial. The earlier case law classified such services with reference to the broad formulation of “using the skills of companies” as subcontracting services.10 As a result, this result was also supported with reference to the general definition of subcontracting services on the grounds that it was In the case of external inspection services, it is precisely partial services that the contractor is obliged to provide to the contracting authority under the contract.11 With a functional understanding of the term subcontractor and being linked to the subject matter of the contract, all services to which the contractor is contractually obliged must therefore be classified as subcontractor services .12 In principle, this distinction between subcontractor services and so-called auxiliary services leads to reasonable and appropriate results. But not in all cases. Especially in the case of external testing services or other services that are to be provided by third parties according to the service description, there are justified doubts in individual cases as to whether these must be classified as subcontractor services. The OLG Munich recently took a different view in an obiter dictum.13 Accordingly, such contractual services which, according to the service description, are not to be provided by the bidder himself but by certain third parties, should not fall under the term of subcontractor services. Above all, the meaning and purpose of naming subcontractors speak for the view of the Munich Higher Regional Court. This should enable the contracting authority, on the one hand, to determine which companies are involved in the provision of services and, on the other hand, to be able to carry out a suitability test for these companies.14 A subcontractor would be named in cases in which the contracting authority is already in the service description has specified certain, generally suitable third parties for the provision of the service, pure formality. Against this background, it becomes clear that the demarcation of subcontractor services and so-called auxiliary services should not always be strictly functional. In addition to a functional consideration, the interest of the contracting authority in proving the suitability of the third party should therefore always be taken into account for the purpose of delimitation.15 If this standard is used as a basis, however, it must always be carefully checked in the specific case whether the contracting authority is also in the procurement documents actually committed to a specific third party. This is not always the case with external testing services either. There is no commitment to specific third parties and thus a subcontractor service if the (testing) service can e.g. not only be provided by test centers specified by the contracting authority, but also by recognized engineering offices or their own permanent concrete test centers. 16
Section 36 VgV generally speaks of “subcontracting to third parties” and, according to the wording, basically only covers direct subcontracting by the contractor. Such an understanding is also based on a systematic comparison with the provisions of Section 36 (3) sentence 3 VgV, which expressly expands the possible notification obligations of the main contractor to further stages in the chain of subcontractors for the time after the award of the contract, 17 or Section 36 (3) 4 VgV, according to which Section 128 (1) GWB applies to subcontractors “at all levels”. Conversely, § 36 VgV only applies to subcontractors and not to sub-subcontractors and other stages in the chain of subcontractors. A request by the contracting authority to name subcontractors of the second stage before the award of the contract is therefore not permitted. 18
Affiliated companies can also be subcontractors. In an isolated, older decision, the Munich Higher Regional Court initially did not classify group-affiliated companies as subcontractors.19 However, the Düsseldorf Higher Regional Court correctly stated in a later decision that this case law did not comply with the requirements of Directive 2014/24 / EU or its Predecessors have to be reconciled.20 Union law assumes that group-affiliated companies are third-party companies within the meaning of Articles 63 and 71 of Directive 2014/24 / EU (or their predecessor provisions). In a subsequent decision, the Munich Higher Regional Court followed the opinion of the Düsseldorf Higher Regional Court.21 Finally, the classification of group-affiliated companies as subcontractors is also in line with the interests of their predominantly independent economic activity.22
1 Cf. Gabriel, in: Gabriel / Krohn / Neun, Handbook of Procurement Law, § 16 marginal number 11.2 cf. OLG Munich, decision of October 12, 2012 - Verg 16/12; OLG Düsseldorf, decision of October 27, 2010 - VII-Verg 47/10; OLG Naumburg, decision v. July 2nd, 2009 - 1 Verg 2/09; OLG Celle, decision v. July 5, 2007 - 13 Verg 8/07; Gabriel, in: Gabriel / Krohn / Neun, Handbook of Procurement Law, § 16 Rn. 1; Burgi, NZBau 2010, 593 (594); Conrad, VergabeR 2012, 15 (18). 3 OLG Düsseldorf, decision of October 20, 2008 - VII-Verg 41 / 08.4 VK Schleswig-Holstein, decision of 7.7.2009 - VK-SH 05 / 09.5 for example OLG Düsseldorf, decision v. October 27, 2010 - VII-Verg 47/10; OLG Naumburg, decision v. 4.9.2008 - 1 Verg 4/08; OLG Dresden, decision of April 25, 2006 - 20 U 467/06; VK Bund, decision of 10/13/2004 - VK 3-194 / 04. 6 Burgi, NZBau 2010, 593 (595). 7 Cf. OLG Munich, decision of 11/29/2007 - Verg 13/07. 8 Cf. OLG Düsseldorf, decision of June 25, 2014 - VII-Verg 38 / 1.9 VK Saxony-Anhalt, decision of February 15, 2013 - 2 VK LSA 42/12; VK Rhineland-Palatinate, decision of 10/31/2012 - VK 1-26 / 12; a.A. VK Lower Saxony, decision of 31.1.2012 - VgK-58 / 2011.10 in an obiter dictum OLG Düsseldorf, decision v. October 20, 2008 - VII-Verg 41/08, as well as the lower instance VK Bund, decision v. May 26, 2008 - VK 2-49 / 11/08 Burgi, NZBau 2010, 593 (595). 12 Cf. Burgi, Procurement Law, § 9 marginal number 9.13Cf. OLG Munich, decision of October 12, 2012 - Verg 16/12; approvingly Vavra, in: Ziekow / Völlink, Veraberecht, § 13 VOB / A Rn. 11. 14 Cf. OLG Naumburg, decision v. 30.9.2010 - 1 U 50/10; OLG Munich, decision of January 22, 2009 - Ver. 26/08; OLG Düsseldorf, decision of 4.5.2009 - VII-Verg 68 / 08.15 In this respect, also Gabriel on the different approaches to delimitation, in: Gabriel / Krohn / Neun, Handbuch des Vergaberechts, § 16 Rn. 17.16Cf. OLG Munich, decision of 12.10.2012 - Verg 16 / 12.17At the time of notification obligations according to § 36 Abs. 3 VgV see Rn. 54.18 According to the old legal situation it was assumed that the bidder must also name subcontractors of the second row, provided that the contracting authority provides a "detailed overview of the Subcontractor ", see OLG Düsseldorf, decision v. April 13, 2006 - VII-Verg 10/06. In some cases, the view was even taken that the bidder had to name all subcontractors known to be involved in the provision of the service, i.e. also subcontractors of the second row, to the contracting authority, cf. 15.3.2007 - 1 / SVK / 007-07.19 OLG Munich, decision of 11/29/2007 - Verg 13/07/20 OLG Düsseldorf, decision of June 30, 2010 - VII-Verg 13 / 10.21 OLG Munich, decision of 15.3.2012 - Verg 2 / 12.22 Opitz, in: Dreher / Motzke, procurement law, § 16 VOB / A marginal number 221.