Article 86 · Mixed procurement involving defence or security aspects

1.This Article applies to mixed contracts which have as their subject-matter procurement covered by this Regulation as well as procurement covered by Article 346 of the Treaty or Directive 2009/81/EC.

2.Where the different parts of a given public contract are objectively separable, public buyers may choose to award separate contracts for the separate parts or to award a single contract.

3.Where public buyers choose to award separate contracts for separate parts, the decision regarding the applicable legal regime to any one of such separate contracts shall be taken on the basis of the characteristics of the separate part concerned.

4.Where public buyers choose to award a single contract, the following criteria shall apply to determine the applicable legal regime:

(a)where part of a given contract is covered by Article 346 of the Treaty, the contract may be awarded without applying this Regulation, provided that the award of a single contract is justified for objective reasons;

(b)where part of a given contract is covered by Directive 2009/81/EC the contract may be awarded in accordance with that Directive, provided that the award of a single contract is justified for objective reasons, subject to the thresholds and exclusions for which that Directive provides.

5.The decision to award a single contract shall not, however, be taken for the purpose of excluding contracts from the application of either this Regulation or Directive 2009/81/EC.

6.Paragraph 2, third subparagraph, point (a) applies to mixed contracts to which both point (a) and point (b) of that subparagraph could otherwise apply.

7.Where the different parts of a given contract are objectively not separable, the contract may be awarded without applying this Regulation where it includes elements to which Article 346 of the Treaty applies; otherwise it may be awarded in accordance with Directive 2009/81/EC.