Background
In the Kolin case, the CJEU addressed the participation of third-country contractors, such as those from China or Turkey, in the EU public procurement market.
The Court held that, in the absence of EU legislation, it is for the contracting authority to decide whether such contractors may participate in procurement procedures. Where admission is granted, the authority may also adjust the comparative assessment of tenders submitted by third-country contractors and EU-based contractors. A similar ruling was issued in Qingdao, concerning consortium members from third countries.
In response, the Polish legislator amended the PPL to codify the approach outlined in these judgments.
Silence of the contracting authority is no longer sufficient
The new rules expressly provide that the silence of the contracting authority does not imply admission of third-country contractors. Admission is possible only if the contracting authority explicitly allows it in the contract notice or procurement documents. The same rule applies to consortium members, entities providing resources, and subcontractors that qualify as third-country contractors.
In the absence of such an express provision, any offer submitted by a third-country contractor is subject to rejection.
Furthermore, even where admission is granted, third-country contractors remain excluded from appeal before the National Appeals Chamber (NAC).
Questions around pre-amendment proceedings
Although the amendment clarifies the rules going forward, the status of third-country contractors in tenders launched before 9 September 2025 remains uncertain. This issue is particularly complex in the context of consortia involving both domestic and third-country contractors. In such cases, the contracting authority retains discretion to either examine or reject the offer.
Divergent case law
Case law is divided on whether third-country contractors — or consortia involving them — are entitled to legal remedies against acts or omissions of contracting authorities.
In case XXIII Zs 26/25, the Public Procurement Court required rejection of an appeal filed with the NAC by a Turkish contractor. Conversely, the NAC has issued several rulings in which appeals brought by third-country contractors were either admitted or adjudicated on their merits. The wording of the transitional provisions suggests that appeals in proceedings initiated after 9 September 2025 must be rejected if lodged by third-country contractors.
Legal uncertainty harmful to all stakeholders
Divergent case law and the unclear status of third-country contractors in pre-amendment proceedings create uncertainty for both contractors and contracting authorities. Given the growing number of international capital links, these significant regulatory changes will likely necessitate swift strategic responses from market participants.
