Hearings before the National Appeal Chamber: No more stress of travelling, but new problems arise | In Principle

The reform of procurement appeal procedures seeks to stop tactical opportunism in the hearing room, but drastically worsens the situation of honest litigants seeking to defend their own interests on the merits. This is the most serious adverse side effect of the amendment.

Public procurement is an area of the law constantly undergoing changes. An amendment will shortly enter into force in Poland reshaping the appeal procedure, and work is already underway within the European Commission on drafting new procurement directives. But the Polish rules are increasingly driven by the state’s purchasing policy, which focuses on aims other than supporting the interests of contractors.

The life of contractors and their counsel will change significantly starting 13 March 2026. Those who have it worst will be contractors who must intervene in appeals, for example to defend the selection of their offer as the most advantageous tender. They will feel the effects of the amendment the most strongly.

Changes to the Public Procurement Law from 13 March 2026

From that date, hearings before the National Appeal Chamber (KIO) will be held remotely, at least in part. The provisions are worded to give the parties and intervenors the choice of whether to appear remotely or in person. At the stage of debate on the proposal, objections were raised that this solution is unclear and may put those deciding not to travel to a KIO hearing at a disadvantage compared to those who appear in person. A more transparent rule would be that in the case of a remote hearing, none of the parties or intervenors can appear in person.

But remote hearings seem like an obvious and desirable consequence of technological progress, and the fact that solutions already functioning in the Public Procurement Court are only now being implemented in the KIO appellate procedure should be more surprising than concerning. After all, appellate proceedings require reform in many areas. Nonetheless, I for one look to the weeks ahead with scepticism (the new rules will apply to proceedings initiated after the amendment enters into force).

What’s wrong with the changes?

There is no doubt that the course of appellate proceedings needs to be formalised. This has to do with the sequence and timing of filing of pleadings, which now are often served on adversaries at the hearing itself, or just before it starts. When we add to this the fact that many parties and intervenors must travel to Warsaw for the hearing, sometimes from the far corners of the country, and that many cases are decided in a single day of hearings, it’s not hard to imagine what a juggling act KIO hearings can be. Counsel have to absorb dozens of pages of arguments and evidence first raised at the hearing, and be prepared to address these issues in their opening statement. Counsel must display great agility to avoid being overwhelmed by these realities. No doubt, justice and equity are often lost along the way.

For these reasons, I always believed that just as the appellant has a set time to file an appeal (5 or 10 days, depending on the contract value), contracting authorities and intervenors should also have a fixed period to submit their positions in writing, a few days before the scheduled hearing. In this way, the hearing would focus on addressing what has not already been covered in writing, by well-prepared litigants, before a decision-making panel familiar with the issues presented.

The amendment pursues these aims, but in a manner endangering the interests of contractors who have not filed an appeal.

Contracting authorities have time to respond

In the new appellate procedure, contracting authorities will have to file their response to the appeal within a time set by the KIO president, but no shorter than five days. In the response, the contracting authority must address the objections raised on appeal, present its own position, and enclose evidence. This is a necessary and positive change. And the response time given the contracting authorities treats them very kindly.

A procurement appeal concerns acts or omissions in the proceeding for award of a public contract. The appeal attacks what the contracting authority has done (or should have done but failed to do). The allegations on appeal concern a certain act (or failure to act) by the contracting authority, resulting from its analysis of the circumstances in the contract award procedure. It is reasonable to assume that the contracting authority knows and understands why it took a certain decision. Then it receives an appeal by a contractor with a full analysis of why the decision was allegedly erroneous.

I expect that as soon as it examines the appeal, the contracting authority is in a position to easily assess whether it should stick to its position, or should recognise certain circumstances highlighted by the appeal, leading the contracting authority to reconsider its previous approach. But no one expects the contracting authority to act immediately: once it is summoned to respond to the appeal, it will have at least five days to do so. And even before receiving the summons, it will have at least a week (in practice, even more time, based on KIO proceedings from recent months). This is because the contracting authority is the first entity to be served with an appeal, which is only after that filed with KIO, and the process of registering the case takes a few more days.

In short, under the amendment contracting authorities have received—in my view—sufficient time to prepare a fair response to the appeal. This response, served on the parties far enough in advance of the hearing, can raise the quality of the discourse in the hearing room, thus furthering the aims of the appellate procedure.

It’s different for intervenors.

Will intervenors miss the appeal train?

What sort of creature is an intervenor in a procurement appeal? I have heard it said that an intervenor is like a passenger without a ticket. They didn’t draft the appeal, and didn’t pay the filing fee on the appeal, but they will step in and disrupt the parties. An intervenor has a right to attend the KIO hearing and address the panel, and the steps it takes can affect the fate of the parties. For those outside the loop, I should explain that an intervenor could be essentially any contractor taking part in the procedure for award of a public contract (or with an interest in the procedure) who has not filed an appeal—or whose position is somehow impacted by the appeal.

An intervenor may assert that the appeal is groundless, and that the contracting authority acted properly; then it intervenes on the side of the contracting authority. Or the intervenor may agree with the appeal and wish to support it, even though it was filed by a different party; then it intervenes on the side of appellant.

The status of an intervenor may be assumed by a contractor which, after being informed by the contracting authority that another contractor has filed an appeal, declares its intervention in the appellate proceeding within three days. Until now, the formalities associated with intervening have been fairly limited, and easy to comply with despite the brief time allowed. The intervenor had to state which side of the appeal it was intervening on, and why—what interest it has in intervening. Crucially, intervenors have had up until the closing of the hearing to present evidence supporting their allegations or to rebut the allegations of the adversary and other participants in the appellate proceeding. It will work differently in the near future, complicating the situation of intervenors the most.

Asymmetry of deadlines—a radical change in the intervenor’s duties

Following the amendment, a contractor may declare its intervention in an appellate proceeding within three days after receiving the appeal, or a copy of the appeal, stating the side on which it is intervening, the intervenor’s interest in a resolution in favour of the party on whose side it is intervening, setting forth allegations, and also enclosing evidence in support its allegations or rebutting the allegations raised in the appeal or the response to the appeal. This deadline will remain the same—three calendar days—but qualitatively it will be entirely different. A simple formal declaration of intervention will become a full-fledged pleading on the merits, which requires the gathering and submission of evidence. In this sense, it is a pleading no different from the appeal or response to the appeal.

The sequence of deadlines works as follows:

• The contracting authority will transmit the appeal, or a copy of the appeal, to the other contractors participating in the procedure for award of the public contract, promptly but no later than two days after receipt of the appeal
• A contractor may declare its intervention within three days after receipt of the appeal or a copy of the appeal.

If, for example, the contracting authority forwards the appeal to the other contractors on Friday afternoon, the real window for preparing the intervention on the merits—along with allegations and evidence—will be just one business day (by the end of the day on Monday, because the period is counted in calendar days).

The striking disproportion in the situation of different litigants:

Evidentiary preclusion as a consequence

The situation is worsened by the link with the new preclusion of evidence. Participants in the appellate proceeding must submit their allegations or refutation of the allegations of the opposing party and intervenors along with their appeal, response to the appeal, or intervention, or along with other pleadings submitted, at the latest, by the day before the scheduled hearing or session; otherwise, they lose the right to rely on the evidence during the appellate proceeding.

It is true that when it was not possible to obtain evidence earlier, or the need to rely on the evidence arose during the course of the appellate proceeding, participants can raise such evidence until the close of the hearing. However, this is an exception which requires a showing that it applies. For an intervenor which had only three days to gather evidence but failed to do so, it may be hard to prove this, because the time was limited by the framing of the deadlines, not by the unavailability of the evidence.

How to salvage the situation?

The pitiful procedural posture of intervenors was not a legislative oversight, as during the work on the amendment practitioners called for lengthening the deadlines imposed on intervenors. Moreover, given the sequence of events during the appellate proceeding, there is no significant reason why an intervenor would have to present its written position earlier than the contracting authority. Meanwhile, the provisions are framed so that before the contracting authority begins drafting its response to the appeal, it will already have at its disposal the entire argumentation of the appeal as well as the interventions filed in the case. The regulations in the amendment are driven by the perception of the role of intervenors in public procurement litigation, and are a deliberate effort to hinder active engagement by intervenors in appellate proceedings.

It should be pointed out, however, that not all intervenors are contractors backing the appeal and ganging up against the successful offer by a competitor. Intervenors may support allegations against the wording of the contract documentation in appeals filed prior to submission of tenders, but they may also be entities finding themselves in a position where they must defend themselves. In other words, not every intervenor appears as a matter of choice; some of them intervene because they have to.

Unfortunately, I get the impression that the entire weight of arguing in defence of actions by the contracting authority has been placed on the intervenor, which is required to perform a huge amount of work on the merits, which the contracting authority can take full advantage of. Consequently, from now on, no contractors whose offers could be the subject of attack by the competition will be able to rest easily—unless they can count on the contracting authority defending them through a well-written response to the appeal.

Ultimately, there is still the hearing, which remains the focus of the appellate proceeding. This is the last chance to defend the most advantageous offer against rejection. But with the evidentiary preclusion rules in place, under the reality of many cases the hearing will be too late to turn the tide and salvage the offer.

Anna Prigan, attorney-at-law, Infrastructure, Transport, Public Procurement & PPP practice, Wardyński & Partners