Access by contractors from third countries—amendment of the Public Procurement Law
Today, 9 September 2025, an amendment to the Public Procurement Law entered into force which fundamentally changes the rules for access to the Polish public procurement market by contractors from certain third countries. The changes result from EU competition policy and judgments from the Court of Justice recognising this concept in cases C-652/22 Kolin Inşaat Turizm Sanayi ve Ticaret AŞ and C-266/22 CRRC Qingdao Sifang.
The newly added Art. 16a of the Public Procurement Law ensures access to public procurement procedures, under the same rules as EU contractors, for contractors from third countries that are covered by the World Trade Organization’s Agreement on Government Procurement (GPA) or are parties to international agreements with the EU guaranteeing access to the public procurement market under principles of reciprocity and equal treatment.
The same rules will apply for construction works, services and supplies coming from these third countries.
However, in the case of contractors from third countries that are not covered by the GPA and not parties to other agreements with the EU, for procurements in Poland Art. 16b of the act authorises the contracting authority to make its own decision on whether to admit them to participate in the procedure.
In the contract notice, the contracting authority may determine the admissibility of:
- Contractors operating or established in a third country not covered by these international agreements
- Contractors jointly seeking the award of a contract along with contractors from such third countries
- Contractors seeking a contract while relying on the resources of entities from such third countries
- Contractors seeking a contract while entrusting execution of a portion of the contract to subcontractors or sub-subcontractors from such third countries.
The contracting authority may also set less-favourable conditions for contractors, and for works, services and supplies, from third countries not covered by these international agreements.
In line with these changes, corresponding changes were made with respect to rejection of a request for participation in a public procurement procedure or contest, or an offer, if submitted by a contractor or jointly with a contractor from a third country not covered by such international agreements, where the contracting authority did not provide in the procurement documentation for admission of such contractors (amendments to Art. 146(1)(4a), Art. 343(3)(4a) and Art. 226(1)(5a)).
Nonetheless, contractors from a third country not covered by these international agreements may still participate in procedures for award of public contracts pursuant to a decision taken by the contracting authority under Art. 16b, but they will not be vested with the right to seek review (Art. 505(1a)). In other words, such contractors will not be able to appeal to the National Appeal Chamber against acts or omissions of the contracting authority, join appellate proceedings, or file a complaint with the court, even when such contractors are participating in a given public procurement procedure.
Sectoral procurement contracts
Under the amended Art. 393(1)(4) of the Public Procurement Law, in sectoral procurements the contracting entity may provide in the contract notice or terms of reference for rejection of an offer if it does not meet the requirements for a greater than 50% share of products from the EU or from third countries treated on an equal footing with EU countries under international agreements.
Moreover, the amendment allows the contracting entity to admit contractors from third countries not covered by international agreements to participate in a system of qualified contractors, or contractors seeking a contract along with such contractors (Art. 371(2a)).
Defence and security procurements
Art. 16a and 16b of the Public Procurement Law do not apply to procedures for award of contracts in the field of defence and security, in light of the restrictions on entities existing prior to the amendment (Art. 395(1)(2)). In this respect, the law provides for the possibility of setting less-favourable conditions for contractors for works, services or supplies coming from third countries not covered by international agreements (Art. 404(3)).
Transitional provisions
Procurement procedures commenced but not yet completed before the date of entry into force of the amendment will continue to be governed by the previous rules (apart from Art. 16a, which essentially codifies the existing practice). Moreover, contracting authorities can reject an offer or a request for admission to a procedure submitted by contractors from third countries not covered by an international agreement (the same right is provided for contests, dynamic purchasing systems, and a system of qualified contractors).
The previous rules will continue to apply to appellate proceedings commenced but not yet completed before entry into force of the amendment, as well as appellate proceedings commenced after entry into force of the amendment but concerning procurement procedures commenced prior to entry into force of the amendment.
Serom Kim, adwokat, Infrastructure, Transport, Public Procurement & PPP practice, Wardyński & Partners
