Mixed Contract

Mixed contracts arise whenever a single procurement covers more than one type of subject matter. A hospital might procure medical equipment together with a long-term maintenance and calibration service. A city might commission both the design of a park and its construction. An IT department might purchase hardware together with installation and ongoing managed services. In each case, the contracting authority must determine which regime governs the whole contract, because procurement law does not permit indefinite hybrid procedures.

What is a Mixed Contract?

Articles 3 to 6 of Directive 2014/24/EU set out the rules for mixed contracts covering different types of procurement. The general principle is that the regime applicable to the main or predominant element of the contract determines the procedure for the whole contract.

Mixed contracts covering works and services: the contract is classified according to the main object. If the value of the works element exceeds the value of the services element, the higher works threshold and works procedures apply. If services predominate, the service contract rules apply.

Mixed contracts covering supplies and services: again, the main object determines classification. A contract for the supply of a fleet of vehicles with an ongoing servicing arrangement is a supply contract if the vehicles predominate by value; it is a services contract if the maintenance element predominates.

Mixed contracts involving elements subject to different directives: Directive 2014/24/EU (standard public sector), Directive 2014/25/EU (utilities), and Directive 2009/81/EC (defence and security) each cover distinct categories. Where a single contract falls within the scope of more than one directive, specific rules determine which applies. Generally, if the contract is "inseparably linked," the directive applicable to the main element governs the whole. If parts can be separated and procured independently without causing disproportionate technical, economic, or practical difficulties, they should be separated and each part procured under the appropriate regime.

The prohibition on artificial splitting applies to mixed contracts too. Contracting authorities cannot artificially separate a mixed contract into distinct contracts to reduce its value below a threshold or to apply a less stringent procedure to the higher-value element.

Why it matters for bidders

Understanding how a mixed contract is classified tells you which procedural rules governed the procurement and which threshold determined whether it required EU-wide competition. If a buyer has classified a predominantly works contract as a services contract to exploit the lower works threshold, or has split what should be a single mixed contract into separate smaller contracts, those are potential procedural irregularities.

For suppliers, mixed contracts also present commercial opportunities. If you provide a product but can also offer a managed service around that product, understanding how the combined offering would be classified can help you position a more comprehensive and differentiated proposal.

Example

A Belgian municipality procures a street lighting upgrade. The project includes the supply and installation of 500 new smart lighting units (supply and works element) and a twelve-year maintenance and monitoring contract (services element). The total value is four million euros, of which one million relates to supply and installation and three million relates to the services. Services predominate by value, so the whole contract is treated as a services contract and subject to the services threshold and services procedures rather than the higher works threshold.

Frequently Asked Questions

Is it ever acceptable to split a mixed contract into separate contracts?

Yes, where the different elements are genuinely separable without creating disproportionate difficulties. If a contracting authority can procure the construction of a building and the cleaning services for that building separately, it is permitted and often administratively sensible to do so. Each contract must then be individually assessed against the applicable threshold and procedure. What is prohibited is artificial splitting designed specifically to bring individual contracts below the threshold.

What happens if the elements of a mixed contract fall under different directives?

Articles 5 and 6 of Directive 2014/24/EU address this specifically. Where a contract involves elements covered by Directive 2014/24/EU (standard public sector) and elements covered by Directive 2014/25/EU (utilities), and the elements are objectively inseparable, the contract must be awarded under whichever directive applies to the main element. Where they can be separated, each element should be procured under the appropriate directive.

How do contracting authorities determine which element "predominates"?

The test is primarily value-based: which element accounts for the larger share of the estimated contract value. However, the Court of Justice of the EU has also considered the functional purpose of the contract, its main object from the perspective of the contracting authority's need, and whether the elements are accessory to or the core of the contractual purpose. Where value and functional purpose point in different directions, legal advice is warranted.