New limits and restrictions for contractors from third countries — two amendments to the Public Procurement Law and the Act on Concession Agreements for Construction Works or Services signed by the President
The President of Poland signed two amendments to the Act of 11 September 2019 – Public Procurement Law (“PPL”) and the Act of 21 October 2016 on concession agreements for construction works or services (“Concession Agreement Act”), which introduce in parallel: (i) a new model for treating contractors from third countries not covered by EU international agreements, and (ii) an increase in the threshold for applying the PPA and Concession Act regimes, together with a clarification of the analytical obligations of contracting authorities.
Restrictions for contractors from third countries
The first of the acts establishing restrictions on contractors from third countries (Journal of Laws 2025, item 1165) aligns Polish regulations with the interpretation of the Court of Justice of the European Union in its judgments in cases C-652/22 (Kolin) and C-266/22 (CRRC), according to which access of contractors from third countries to the EU procurement market is not guaranteed as a matter of principle – it may be granted by decision of the contracting authority and on conditions specified by it. In practice, this means that it is possible to differentiate the conditions for participation and even the grounds for rejecting a tender/application, provided that the contracting authority so stipulates in the tender documents.²
The Act, in the newly added Articles 16a and 16b of the Public Procurement Law, establishes the following rules:
- it guarantees equal treatment only to contractors from countries that are parties to the GPA (WTO Agreement on Government Procurement) or other EU agreements,
- leaves it to the contracting authority to decide whether to admit contractors from other third countries and on what terms,
- enables the contracting authority to impose less favourable conditions on such contractors (e.g. different criteria, correction of bid evaluation).
In addition, specific regulations have been introduced concerning the rejection of tenders, the exclusion of contractors, competitions, purchasing systems and concessions. Importantly, contractors from third countries not covered by international agreements have been deprived of the right to use legal protection measures (KIO).
Similar rules have been introduced into the Concession Agreement Act (Articles 12a and 12b of the Concession Agreement Act). The restrictions on the participation of contractors from third countries will enter into force 14 days after the announcement, i.e. on 9 September 2025.
The transitional provisions stipulate that, as a rule, the existing regulations will apply to proceedings initiated before the Act enters into force, with two significant adjustments: the new Article 16a of the Public Procurement Law (equal treatment of contractors from countries that are parties to the GPA or other EU agreements) should already be applied in ongoing proceedings, and contracting authorities may, until the conclusion of those proceedings, use the new basis for rejecting bids from third countries not covered by agreements (Article 226(1)(5a) of the Public Procurement Law). The extended powers under Article 16b of the Public Procurement Law, on the other hand, require explicit reflection in the documentation of newly initiated proceedings.¹
Increase in the threshold for the application of the Act[1]
The second act (Journal of Laws 2025, item 1173) – effective from 1 January 2026 – raises the threshold for the application of the Public Procurement Law and the Concession Act from PLN 130,000 to PLN 170,000, adjusting it to market realities and procedural burdens.
In practice, contracting authorities will gain greater flexibility for purchases below PLN 170,000 (outside the regime of the Public Procurement Law and the Concession Act), while in large procedures they will have to document activities aimed at increasing competitiveness – which should translate into more proportionate conditions for participation and a real increase in the number of bids, in particular from the SME sector.
New obligations for contracting authorities in contracts with a value equal to or exceeding EU thresholds[2]
The amendment to the Act introduces an obligation for the contracting authority to carry out an analysis of needs and requirements. The obligation to carry out such an analysis will apply to classic contracts with a value equal to or exceeding EU thresholds and to procedures for the conclusion of concession contracts with a value equal to or exceeding EU thresholds. The aim of these changes is to ensure that the analysis of needs and requirements ceases to be a formality and becomes a real tool for increasing market competitiveness, improving the quality of bids, and making better use of public funds.
Contracting authorities will be required to carry out analyses in the following areas:
description of the subject matter of the contract
- – in such a way that it does not restrict access to potential contractors,
- deadline for submitting tenders – in such a way as to allow a wider group of entities to participate,
- conditions for participation – proportionate and adequate to the subject of the contract,
- criteria for evaluating tenders – rewarding quality and innovation, and not only the lowest price,
- draft contract provisions – formulated in a way that does not exclude smaller entities.
The results will be included in a separate document – ‘Analysis of needs and requirements’, drawn up before the procedure is initiated.The new thresholds and analytical obligations will apply to procedures initiated on or after 1 January 2026. However, procedures initiated and not completed before 1 January 2026 will be conducted under the existing rules.SummaryThanks to the amendment, contracting authorities will gain greater flexibility when making purchases below PLN 170,000 (outside the regime of the Public Procurement Law and the Concession Law), while in large procedures they will have to document measures aimed at increasing competitiveness, which should translate into more proportionate conditions for participation and a real increase in the number of bids, in particular from the SME sector.On the other hand, contractors from third countries not covered by the GPA/EU agreements will only be able to participate in Polish proceedings if the contracting authority expressly allows it – and on terms that may be less favourable than for EU/GPA contractors; at the same time, legal protection measures in the National Appeal Chamber and under the concession regime have been excluded for them.[1] Journal of Laws 2025, item 1165 (new Articles 16a–16b of the Public Procurement Law, 12a–12b of the Concession Act, respectively; vacatio legis 14 days from publication).[2] Journal of Laws 2025, item 1173 (threshold of PLN 170,000; amendments to Article 83 of the Public Procurement Law; entry into force on 1 January 2026).
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