Technical extension in public procurement: conditions of legitimacy

In today’s article we will try to shed light on some aspects of this apparently extraordinary instrument, which in reality is frequently applied within the dynamics of public administrations. 

Before analysing when this institution is or is not provided with legitimacy, it is necessary to make a preliminary distinction between the technical extension and the contractual extension, both of which are provided for in the new procurement code. The former is governed by Legislative Decree 36/2023 at Article 120, paragraph 11, and exists when the duration of the contract is changed by the administration for reasons not attributable to it nor originally foreseeable, for the sole purpose of guaranteeing the continuity of an essential service pending the conclusion of the tender procedure to choose the new contractor. The main characteristics of the technical extension, therefore, are its temporariness and unpredictability, being a ‘bridge’ instrument between one contractual regime and another. The so-called contractual extension, on the other hand, provided for in paragraph 10 and thus kept quite distinct from the preceding one, finds its source directly in the contract. It is therefore a negotiation clause foreseen and provided for by the administration that is intended to crystallise the possibility of the parties to continue the synallagmatic relationship. Having made this necessary distinction: when is one’s technique (since the other is left to the availability of the parties) legitimate? Are there prerequisites for its adoption?

The answer is obviously yes. 

In fact, it can only be used by administrations by following the following steps:

1. it must be of an exclusively exceptional nature, to which recourse must be had when the ordinary competitive mechanisms cannot be set in motion. The service in question must therefore be characterised by the character of necessity and public interest, fearing, in the event of its interruption, harm to the community;
2. It must be necessary to concretise the principle of continuity of administrative action;
3. It must be temporary and exclusively adopted in order to fill the gap between two contracts (bridging contract); 
4. The tender must be launched before the original contract expires;
5. The administration must not have contributed to causing the delay in the definition of the new contractual arrangement.

All these characteristics are recalled in the recently published judgement of the Veneto Regional Administrative Court, section II, 11.03.24 no. 449, where the administrative judge identifies even more clearly the boundaries of the institution already outlined in the past, but now more than ever made clear and binding. Technicians called upon, therefore, to resort to this institute must always verify the existence of the prerequisites indicated in order to avoid incurring a declaration of illegitimacy.