Chapter 2 — Research and development procurementProposed — COM(2026) 567
Article 8 — Subcontracting
In brief
This article regulates subcontracting in R&D procurement. Parts of a contract may be subcontracted, but the contract cannot be subcontracted in its entirety. Tenderers must disclose the share they intend to subcontract and proposed subcontractors, and the main contractor must provide and update information on subcontracted tasks and subcontractor identities. Buyers can require replacement of subcontractors on exclusion grounds, may reserve certain critical tasks to the main contractor, and the main contractor’s liability is preserved.
Key points
Partial subcontracting is permitted, but a contract may not be subcontracted or further subcontracted in its entirety.
Tenderers must indicate the intended subcontracted share and proposed subcontractors, with the main contractor informing and updating the buyer before and during performance.
Subcontractors subject to mandatory exclusion grounds (Article 13) must be replaced; optional grounds (Article 14) may require replacement.
Where justified and proportionate, buyers may require certain critical tasks to be performed directly by the main contractor, stating them in the procurement documents.
Subcontracting does not affect the main contractor’s liability, and Member States may retain proportionate measures where higher risks to social and labour law compliance are identified.
What it means in practice
Contractors can use subcontractors for parts of an R&D contract but remain responsible for its overall performance and must keep the buyer informed of who is doing what. Public buyers gain tools to vet subcontractors, reserve critical tasks and address compliance risks, while subcontractors and SMEs should note the disclosure and replacement rules that apply to them.
Anthony Bochon’s analysis
The subcontracting regime strikes a balance I consider well-judged. It permits parts of an R&D contract to be subcontracted while prohibiting subcontracting the contract in its entirety, which protects the buyer against the award being hollowed out into a mere pass-through. The transparency obligations — disclosing the intended subcontracting share and the identity of subcontractors, before performance and on any subsequent change — reflect the direction of travel in EU procurement law towards visibility down the supply chain, and I read the mandatory replacement of subcontractors caught by exclusion grounds as an extension of that same integrity logic.
Two points deserve attention as the text advances. First, the power to require that critical tasks be performed directly by the main contractor, subject to proportionality and reasoned justification, is a real lever for buyers and a constraint bidders must design around. Second, the reservation allowing Member States to retain proportionate measures against social and labour-law risks hands national authorities a role that, in my view, will need careful coordination to avoid fragmenting an otherwise harmonised framework.
Official text — Article 8 (COM(2026) 567)
1. Parts of an R&D procurement contract may be subcontracted. A R&D procurement
contract awarded to an economic operat or shall not be subcontracted in its entirety,
nor be further subcontracted in its entirety.
2. Public buyers shall require economic operators to indicate in their tender any share of
the R&D procurement contract that they envisage to subcontract to third parties, and
any proposed subcontractors.
Public buyers shall require the main contractor to inform them after the award of the
contract and before the start of the contract performance of the tasks and activities its
intends to subcontract. Public buyers shall also require information about the identity
of any subcontractors. The public buyer shall require the main contractor to notify
the public buyer as soon as possible of any changes to this information during the
course of the R&D procurement contract.
3. The public buyer shall require the economic operator to replace a subcontractor in
respect of which there are mandatory grounds for exclusion pursuant to Article 13.
The public buyer may require the economic operator to replace a subcontractor in
respect of which there are optional grounds for exclusion pursuant to Article 14.
4. When justified by the nature of the R&D procurement contract and in accordance
with the principle of proportionality, public buyers may require that certain critical
tasks be performed directly by the main contractor. Public buyers shall identify the
critical tasks and related requirements, clearly indicating them and their justification
in the procurement documents.
5. Subcontracting under the provisions in this Article shall be without prejudice to the
main contractor’s liability.
6. Observance of the obligations referred to in Article 4(6) by subcontractors is ensured
through appropriate action by the competent national authorities acting within the
scope of their responsibility and remit. Member States may adopt or retain additional
proportionate measures limiting subcontracting where they have identified a duly
substantiated higher risk of non-compliance with social and labour law obligations.
EN 33 EN
Source: European Commission, proposal for a Regulation establishing the European Innovation Act, COM(2026) 567 final, 9 September 2026. Read the official proposal (PDF). Text may change during the legislative process.
Anthony Bochon’s analysis
The subcontracting regime strikes a balance I consider well-judged. It permits parts of an R&D contract to be subcontracted while prohibiting subcontracting the contract in its entirety, which protects the buyer against the award being hollowed out into a mere pass-through. The transparency obligations — disclosing the intended subcontracting share and the identity of subcontractors, before performance and on any subsequent change — reflect the direction of travel in EU procurement law towards visibility down the supply chain, and I read the mandatory replacement of subcontractors caught by exclusion grounds as an extension of that same integrity logic.
Two points deserve attention as the text advances. First, the power to require that critical tasks be performed directly by the main contractor, subject to proportionality and reasoned justification, is a real lever for buyers and a constraint bidders must design around. Second, the reservation allowing Member States to retain proportionate measures against social and labour-law risks hands national authorities a role that, in my view, will need careful coordination to avoid fragmenting an otherwise harmonised framework.