News · Administrative law · – October 2026

Public works: recovery of the advance may be suspended at the contractor’s request until 31 December 2026

TOPIC
Art. 1-bis of Decree-Law 107/2026, added on conversion, lets contracting authorities suspend, at the contractor’s request, recovery of the advance on works in progress, until 31 December 2026 and outside the PNRR.

Art. 1-bis of Decree-Law (d.l.) No 107 of 26 June 2026, added by conversion Law No 152 of 7 August 2026 (Official Gazette (G.U.) No 192 of 20 August 2026) and in force from 21 August 2026, authorises contracting authorities (stazioni appaltanti) to suspend, at the contractor’s request, recovery of the advance payment (anticipazione) provided for by art. 125 of the Public Contracts Code (Legislative Decree (d.lgs.) No 36 of 31 March 2023). The measure concerns public works contracts in the course of performance and is justified by supply difficulties and exceptional price increases for construction materials, fuels and energy products resulting from the conflicts under way in the Middle East. Paragraph 1 sets three limits: the suspension lasts for the time strictly necessary, operates within the resources available under current legislation and cannot extend beyond 31 December 2026. Paragraph 2 excludes projects financed, in whole or in part, with resources of the PNRR (National Recovery and Resilience Plan). Art. 125 itself is unchanged: in the text in force on 24 October 2026 it sets the advance at 20 per cent of the contract value, which the tender documents may raise to 30 per cent, payable for works within fifteen days of the handover of the works; payment is conditional on a bank or insurance guarantee equal to the advance plus statutory interest for the period needed to recover it under the time schedule, and the guarantee is reduced in proportion to the progressive recovery of the sums. Art. 125 does not lay down how the advance is to be recovered; in contractual practice it is made through deductions from interim payments. Interim payment certificates are issued by the RUP (single project manager) when each progress statement (stato di avanzamento) is adopted and in any case within seven days (art. 125, paragraph 5). Also on the performance phase, with effect from 26 August 2026 art. 2, paragraph 8, of d.lgs. No 149 of 7 August 2026 extended to tax judges (magistrati tributari) the bar on acceptance testing and conformity-verification assignments (collaudo and verifica di conformità) laid down in art. 116, paragraph 6, letters a) and a-bis), of the Code.

The suspension is neither automatic nor owed. The law “authorises” the contracting authority, which decides on the contractor’s application and only within the available resources, a condition that requires it to check that funds are available to make the interim payments without deduction. It is neither an increase in the contract price nor a new advance: the sums remain to be recovered and the provision merely defers their recovery, without specifying how the amounts not deducted are to be absorbed once the suspension ends, on 31 December 2026 at the latest. Art. 1-bis does not affect the other rules of art. 125, paragraph 1: the contractor forfeits the advance, with an obligation to repay it together with statutory interest from the date of payment, if performance does not proceed according to the contractual timetable owing to delays attributable to it, and the guarantee remains tied to the recovery period. The scope is narrow. Service and supply contracts are excluded, because the provision refers to works contracts, as is any project with even a single share of PNRR funding, which should be checked against the financing documents before applying. Moreover, the text refers only to art. 125 of d.lgs. 36/2023, whereas for contracts still governed by d.lgs. 50/2016 under art. 226, paragraph 2, of the current Code, the advance remains governed by art. 35, paragraph 18, of the former Code. In our view, absent an express reference, the suspension cannot be based on art. 1-bis for those contracts.

IN PRACTICE
The contractor files a written application with the contracting authority before the next progress statement is adopted, identifying the contract, declaring that the project is not financed, even in part, with PNRR resources and documenting the supply difficulties or price increases that make the suspension necessary (purchase invoices, quotes, price lists compared with contract prices). The application states the period requested, which cannot go beyond 31 December 2026. It is advisable to ask that the decision granting it identify the interim payments concerned, the end date and how the amounts not deducted will be recovered when deductions resume, and that it be sent to the RUP, who issues the payment certificates. The guarantor of the advance should be informed and asked to confirm that the guarantee remains effective for the whole recovery period as redefined. The application, supporting documents, decision, payment certificates issued without deduction and correspondence with the guarantor should be kept. Keeping to the time schedule remains decisive: suspending recovery does not prevent forfeiture for delays attributable to the contractor.

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.

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