The landmark project includes the delivery of a five-kilometre tunnel beneath the Oder River, set to become the longest road tunnel in Poland. With a winning bid valued at PLN 5.3 billion, the investment represents one of the most significant and technically complex infrastructure projects ever undertaken in the country.
The proceedings before the National Appeal Chamber (KIO) raised complex legal issues extending well beyond technical and pricing considerations. Central to the dispute were the implications of recent judgments of the Court of Justice of the European Union in the Kolin and Qingdao cases, alongside the amendment to Poland's Public Procurement Law of 9th July 2025. The amendment introduced new rules regarding contractors from so called ‘third countries’ and established transitional provisions affecting ongoing procedures.
The case focused on the scope of permissible participation of non-EU contractors, related obligations of the contracting authority, and the application of transitional provisions to procurement procedures that were initiated prior to the amendment entering into force.
In its judgment of 25th February 2026, the National Appeal Chamber dismissed all allegations raised by the challenging consortium of PORR S.A. and Gülermak S.A., thereby upholding the selection of the consortium led by NDI S.A. with Doğuş İnşaat Ve Ticaret A.Ş. as its partner. The ruling provides important clarification on the application of national and EU public procurement rules in the context of third-country operators and is expected to have significant implications for future large-scale infrastructure tenders.
The value and technical scale of the project, combined with an exceptionally complex and evolving regulatory landscape made this one of the most challenging proceedings of recent years.
Łukasz Gembiś, Advocate and Local Partner, Head of the Public Procurement & Contracts Team at DWF in Poland, said: “This case required exceptionally sophisticated legal analysis at the intersection of national and EU law. In the context of such a strategically significant infrastructure investment, assessing the contracting authority’s compliance with the law becomes multidimensional and demands consideration of both domestic regulations and the dynamically developing CJEU case law. The key issue was correctly interpreting the relationship between transitional provisions and the CJEU judgments, which redefined the notion of ‘automatic access’ for third country entities to the EU public procurement market. The contracting authority – the General Directorate for National Roads and Motorways (GDDKiA) – assessed the bids on the basis of the legal framework in force on the date of selection and acted within the limits of its competences. It was not automatically obliged to exclude a consortium that included a Turkish entity. The KIO’s decision confirms the correct application of the Public Procurement Law, the proper implementation of CJEU judgments, and strengthens the stability and predictability of procurement principles in major infrastructure projects."
Łukasz Gembiś advised and represented the successful consortium together with Paulina Sawicka, Advocate and Counsel at DWF in Poland.
