Final huarantee for the final payment

Regulatory Reference: Articles 102 and 103

Testing and Compliance Verification
Article 102

Public contracts are subject to:

TESTING FOR WORKS;
COMPLIANCE VERIFICATION FOR SERVICES AND SUPPLIES.
These acts are aimed at certifying that the object of the contract, in terms of performance as well as technical, economic, and qualitative characteristics, has been realized and executed in accordance with the contractual provisions and the agreements made during the award or assignment.

For public contracts below the European threshold (Article 35), the testing or compliance verification certificates can be replaced by:

THE DIRECTOR OF WORKS FOR WORKS
THE SOLE RESPONSIBLE FOR SERVICES AND SUPPLIES
THE CERTIFICATE OF REGULAR EXECUTION
The certificate of regular execution must be issued within three months from the completion date of the works or services.
The final testing or compliance verification must take place no later than six months from the completion of the works or services.
The period can be extended up to one year in cases of particular complexity of the work or services performed.
Testing or compliance verification certificates have a provisional nature and become definitive after two years from their issuance.
After this period, the certificates are considered tacitly approved, even if the formal approval document is not issued within two months after the expiration of the same period.
Except as provided for by Article 1669 of the Civil Code (total or partial ruin of buildings), the contractor is liable for defects and shortcomings in the work or services, as long as they are reported by the contracting authority before the testing or compliance verification certificates become definitive.

The amount of the final payment is equal to the residual credit claimed by the contractor at the end of the works; the maximum amount of the policy is increased by the legal interests for a period of two years.

The policy is provided to guarantee the payment of any amounts that may be owed by the contractor for defects and shortcomings in the work, which emerged and were reported during the warranty period.

Article 103 (Definitive Guarantees) Paragraph 6
Within three months from the issuance of the testing or compliance verification certificates or the certificate of regular execution, the contracting authority shall proceed with the payment of the final installment to the contractor, subject to the acquisition of a guarantee.

Contents and Limitation of the Guarantee
The policy is provided to guarantee the payment of any amounts that may be owed by the contractor for defects and shortcomings in the work, which emerged and were reported during the warranty period.
The guarantee is effective from the date of the agreement for the final payment and is automatically released two years from the date of issuance of the provisional testing or regular execution certificate, or the compliance verification certificate.

This guarantee, which in the old Procurement Code (Legislative Decree 163/2006) was provided only for works contracts, is now extended to supply or service contracts, despite the contrary opinion expressed by ANAC (National Anti-Corruption Authority).

Genre
Contract Guarantees.

Group
Procurement.

Legal References
Legislative Decree 18.04.2016 n. 50 “Code of Public Contracts” Article 103, paragraph 6
Legislative Decree 19.04.2017 n. 56 “Supplementary and corrective provisions to Legislative Decree 18 April 2016 n. 50.”

Usual Contractor
The contractor executing the works.

Usual Beneficiary
Public contracting authority.

Duration
Two years from the date of issuance of the provisional testing certificate.

Extensions
No.

Typically Required Special Clauses
None.

Specific Documentation to Acquire
Certificates of provisional testing or regular execution, or compliance verification certificate; Contract of procurement.