News · Administrative law · – 6 September 2026
Article 120 of Legislative Decree No. 36 of 31 March 2023 (the Public Contracts Code), in the text in force on 1 September 2026, draws a distinction between two mechanisms. Paragraph 10 governs the extension option: it must be provided for in the call for tenders and in the initial procurement documents, and it obliges the original contractor to continue performance at the prices, terms and conditions laid down in the contract or, where the procurement documents so provide, at market conditions where these are more favourable to the contracting authority. Paragraph 11 governs the so-called technical extension, which is permitted «in exceptional cases in which there are objective and insurmountable delays in the conclusion of the contract award procedure», only «for the time strictly necessary to conclude the procedure» and only where the interruption of performance could give rise to situations of danger for persons, animals or property or for public hygiene, or to serious harm to the public interest. Neither paragraph was touched by the decreto correttivo (corrective decree, Legislative Decree No. 209 of 31 December 2024), which amended Article 120 elsewhere. On this framework the Consiglio di Stato (Council of State), Fifth Section, ruled in judgment No. 1116 of 12 February 2026 (public hearing of 29 January 2026, appeal r.g. No. 8135/2025), reversing judgment No. 13307/2025 of the T.a.r. (regional administrative court) for Lazio. The case was governed ratione temporis by Article 106(11) of Legislative Decree No. 50/2016, which regulated in a single provision what Article 120 of the current Code separates into paragraphs 10 and 11, and which did not set out the exceptional preconditions now required by paragraph 11. The correspondence between the two provisions is therefore only partial: it concerns the limit of the time strictly necessary to conclude the procedure and the requirement that the original prices, terms and conditions continue to apply. Judgment No. 1116/2026 held, first, that once the contractual extension option has been used, the further extension must be classified as a technical extension and cannot be recharacterised as contractual merely because it is mentioned in the tender documents. It went on to state that the technical extension is temporary in nature and is an instrument intended exclusively to ensure the transition from one contractual regime to another: on expiry of the contract, if the authority still needs the same service, it must call a new tender. Finally, it required, for the extension to be lawful, that the term being extended should not yet have expired and that the re-award procedure should already be under way.
Judgment No. 1116/2026 was delivered under the previous Code. The principles on the temporary nature of the technical extension, on the need for the term not yet to have expired and on the re-award procedure already being under way do not, however, derive from the wording of Article 106(11) but from the nature of the mechanism; they therefore appear to be applicable also to Article 120(11), which adds to those preconditions – making the rules stricter – the express requirement that the cases in which an extension is permitted be exceptional. The same Fifth Section has, moreover, already ruled directly on Article 120(11) of the current Code, in judgment No. 7630 of 30 September 2025.
In the case decided, the duration of the award had grown from the initial seven months to eighteen, with a further nine sought by way of technical extension; the national agency Invitalia had been instructed to call the new tender seven days before expiry, and the call for tenders was published when the award had already come to an end. The Council of State allowed the appeal and, varying the judgment below, upheld the first-instance action, declaring the extension unlawful for want of the preconditions. In similar terms, although in a case of the opposite kind (the outgoing operator complained of the refusal of an extension), the above-mentioned judgment No. 7630 of 30 September 2025 (public hearing of 18 September 2025, r.g. No. 2725/2025) had inferred from the sequence of expressions used by the legislature – «exceptional cases», «objective and insurmountable delays», «time strictly necessary», «situations of danger» and «serious harm to the public interest» – the wholly extraordinary nature of the mechanism, which is not open to broad or analogical interpretation and, before that, to generalised application. From this follow the contracting authority’s duty to state specific reasons as to the existence of the preconditions and the absence, on the part of the outgoing operator, of any right to an extension.
The point concerns anyone who works on a regular basis with public authorities, on either side of the relationship. Take a company that has run a service for a local authority for years under a twenty-four-month contract, with a six-month extension option already exercised: shortly before expiry it receives a determina (the authority’s formal decision) extending the relationship by a further twelve months pending the new tender, at the original prices, while the procedure has not yet been advertised. That measure is not a contractual addendum. The dispute falls within the exclusive jurisdiction of the administrative courts over award procedures under Article 133(1)(e)(1) of the codice del processo amministrativo, the Code of Administrative Court Procedure (or under letter (c) of the same paragraph, if a public service concession is involved; in any event exclusive jurisdiction and the special procedure under Article 120 of that Code remain unaffected), and the extension must be reasoned, like any other administrative measure. The outgoing company has an interest in challenging it where forced continuation on terms now out of line with the market causes it a loss; a competing company has an interest in challenging it because the extension deprives it of the market without any competitive contest. In both cases the defect to look for is the same, and it is checked first of all against two dates: that of the extension measure and that of the calling of the new tender. If the call for tenders had not yet been published when the extension was ordered, or if the contract had already expired, then according to judgment No. 1116/2026 the preconditions for a technical extension are lacking. A further aspect, which operates upstream, should be added. Article 14(4) of Legislative Decree No. 36/2023 requires the estimated value of the contract to be calculated taking into account the maximum amount, including the options and renewals explicitly provided for in the procurement documents. A planned extension must therefore be declared and included in the calculation from the outset, and it contributes to determining the threshold; the technical extension, which operates outside that planning, cannot be used to recover after the event a duration that ought to have been provided for, because it remains permitted only in the exceptional cases set out in paragraph 11.
Summary note by the CommercialistiAvvocati network, based on specialised legal and practice sources. The text does not reproduce original contributions and does not constitute professional advice.