Art. 28. Mixed procurement contract

1. Contracts, in ordinary sectors or special sectors, or concessions, having in each relevant ambit, as an object two or more kinds of provisions, are awarded according to the dispositions applicable to the kind of contract characterizing the main object of the contract concerned. In the case of mixed contracts, consisting partly of services within the meaning of Part II, Title VI,

Cape II, and partly of other services, or of mixed contracts consisting partly of services and partly of supplies, the main subject shall be determined in accordance with which of the estimated values of the respective services or supplies is the highest. The economic operator concurring to the award procedure of a mixed contract must possess the qualification and capacity requirements prescribed by this Code for each of the provisions of works, services, supplies foreseen by the contract.

2. To mixed contracts, in the ordinary sectors and special sectors, having as their subject-matter contracts contained in this Code and in other legal regimes, paragraphs from 3 to 8 shall apply.

3. Where the different parts of a given contract are objectively separable, paragraphs 5, 6 and 7 shall apply. Where the different parts of a given contract are objectively not separable, paragraph 9 shall apply.

4. Where part of a given contract is covered by Article 346 of the Treaty on the Functioning of the European Union or Legislative Decree n. 208 of 15 November 2011, Article 160 shall apply.

5. In the case of contracts having as their subject-matter procurement covered by this Code as well as procurement not falling within the scope of this decree, contracting authorities or contracting entities may choose to award separate contracts for the separate parts or to award a single contract. Where contracting authorities or contracting entities choose to award separate contracts for separate parts, the decision as to which legal regime applies to any one of such separate contracts 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 contract, this Code shall, unless otherwise provided in Article 160, apply to the ensuing mixed contract, irrespective of the value of the parts that would fall under a different legal regime and of which legal regime those parts would otherwise have been subject to.

7. In the case of mixed contracts containing elements of supplies, works and services contracts and of concessions, the mixed contract shall be awarded in accordance with this provisions of this Code regulating contracts in the ordinary sectors, provided that the estimated value of the part of the contract which constitutes a contract covered by this Code, calculated in accordance with Article 167, is equal to or greater than the relevant threshold set out in Article 35.

8. In case of contracts having as their subject-matter both contracts in the ordinary sectors and contracts in the special sectors, applicable norms shall be determined, without prejudice to paragraphs 5, 6 and 7, according to paragraphs 1 to 12.

9. Where the different parts of a given contract are objectively not separable, the applicable legal regime shall be determined on the basis of the main subject-matter of the contract in question.

10. In special sectors, in the case of contracts intended to cover several activities, contracting entities may choose to award separate contracts for each separate activity or to award a single contract. Where contracting entities choose to award separate contracts, the decision on the applicable legal regime to any one of such separate contracts shall be taken on the basis of the characteristics of the separate activity concerned. Notwithstanding paragraphs from 1 to 9, for contracts in special sectors, where contracting entities choose to award a single contract, paragraphs 11 and 12 shall apply. However, where one of the activities concerned is covered by Article 346 of the Treaty on the Functioning of the European Union or Legislative Decree n. 208 of 15 November 2011, Article 160 shall apply. The choice between awarding a single contract or awarding several separate contracts shall not, however, be made with the objective of excluding the contract or contracts from the scope of application of this Code.

11. To a contract which is intended to cover several activities in the special sectors, the rules applicable to the activity for which it is principally intended shall be applied.

12. In the case of contracts in special sectors for which it is objectively impossible to determine for which activity they are principally intended, the applicable rules shall be determined as follows:

a) the contract shall be awarded in accordance with the provisions in this Code regulating contracts in the ordinary sectors, if one of the activities for which the contract is intended is subject to the provisions applicable to the award of contracts in the ordinary sectors and the other to the provisions applicable to the award of contracts in the special sectors;

b) the contract shall be awarded in accordance with the provisions in this Code regulating contracts in the special sectors, if one of the activities for which the contract is intended is subject to the provisions applicable for the award of contracts in the special sectors and the other to the provisions applicable to the award of concessions;

c) the contract shall be awarded in accordance with this Code, if one of the activities for which the contract is intended is subject to the provisions applicable to the award of contracts in the special sectors and the other is not subject neither to those provisions, nor to those applicable to the award of contracts in the ordinary sectors or the provisions applicable for the award of concessions.

12-bis. In case of mixed contracts containing elements of supply, work and service contracts in the special sectors and of concessions, the mixed contract shall be awarded in accordance with the provisions in this Code regulating contracts in the special sectors, provided that the estimated value of the part of the contract constituting a contract regulated by those provisions, calculated on the basis of Article 35, is equal to or exceeds the relevant threshold set out in Article 35.