Art. 169. Mixed contracts

1. Concessions which have as their subject-matter both works and services shall be awarded in accordance with the provisions applicable to the type of concession that characterizes the main subject-matter of the contract in question. In the case of mixed concessions consisting partly of social and other specific services listed in Annex IX the main subject-matter shall be determined on the basis of the higher estimated value among the respective services.

2. Where the different parts of a given contract are objectively separable, paragraphs 5, 6 and 9 shall apply. Where the different parts of a given contract are objectively not separable, paragraphs 8 and 10 shall apply.

3. Where part of a given contract, or one of the concerned activities, are covered by Article 346 TFEU or by Legislative Decree n. 208 of 15 November 2011, Article 160 shall apply.

4. In the case of contracts having as a subject-matter different activities, one of them being disciplined by Annex II, contracting entities may choose to award separate concessions for separate parts or to award a single concessions. If contracting entities choose to apply separate concessions, the decision determining which legal regime shall apply to each of these concessions is adopted on the basis of the characteristics of the separate activity.

5. In the case of contracts which have as their subject-matter both elements covered by this Code and other elements, contracting authorities or contracting entities may choose to award separate contracts for the separate parts or to award a single concession. Where contracting authorities or contracting entities choose to award separate contracts, the decision as to which legal regime applies to any one of such separate concessions shall be taken on the basis of the characteristics of the separate part concerned.

6. Where contracting authorities or contracting entities choose to award a single concession, this code shall apply, unless otherwise provided in Article 160 or in paragraph 9, to the ensuing mixed concession, irrespective of the value of the parts that would otherwise fall under a different legal regime and irrespective of which legal regime those parts would otherwise have been subject to.

7. The choice between the award of a single concession or multiple concessions cannot be made in order to circumvent the application of this Code.

8. If the different parts of a given contract are objectively non-separable, the applicable legal regime is determined on the basis of the main object of the contract in question.

9. In the case of mixed contracts containing elements of concessions as well as elements of public contracts in ordinary and special sectors, the mixed contract shall be awarded in accordance with the provisions applicable to contracts in the ordinary and special sectors.

10. In the event a mixed contract involves both elements of a services concession and of a supply contract, the main subject-matter shall be determined according to which of the estimated values of the respective services or supplies is the higher.

11. To a concession intended to several activities shall be subject to the rules relating to the main activity for which it is intended.

12. In the case of concessions for which it is objectively impossible to determine which activities are principally intended, the applicable rules shall be determined in accordance with points a), and c):

a) the concession is awarded in accordance with the provisions governing the concessions awarded by the contracting authorities if one of the activities to which the concession is awarded is subject to the provisions applicable to the concessions awarded by the contracting authorities and the other activity is subject to the provisions relating to the concessions awarded by the contracting entities;

b) the concession is awarded in accordance with the provisions governing contracts in the ordinary course of trade if one of the activities is governed by the provisions relating to the award of concessions and the other by the provisions relating to the award of contracts in the ordinary course of business;

c) the concession is awarded in accordance with the provisions governing the concessions if one of the activities to which the concession is intended is governed by the provisions relating to the award of concessions and the other is not subject either to the concessions or to the concession arrangements, awarding contracts in the ordinary or special sectors.