National Appeal Chamber resolutions: Binding, but not entirely
Work is underway to amend Poland’s Public Procurement Law. The current draft (from 17 September 2026, UD409) would require members of the National Appeal Chamber (KIO) to be guided by earlier KIO resolutions, but would also allow them to make justified departures from previously adopted interpretations. This is an attempt to reconcile concerns for uniformity across different cases with decisional autonomy. But is it enough?
The rulings from the National Appeal Chamber have a clear impact on the shape of the public procurement market in Poland. Market players often take decisions relying on guidance from the chamber’s earlier rulings. But their assessment of legal risk is clouded by inconsistent rulings by different panels. Under the proposed changes, KIO resolutions may become a stronger touchstone for market participants, but will not eliminate the need for an in-depth case-by-case analysis.
The need to reduce discrepancies between rulings is beyond doubt. But the method for achieving this described in the bill (and the reasoning offered by the proponents) is sparking controversy. The threats to the autonomy of the chamber, and the effects of potential discrepancies in positions between KIO and the Public Procurement Court, were pointed out when the first version of the bill was released (S. Wikariak, “Will consolidation of the jurisprudence impact independence?,” Rzeczpospolita, 16 June 2026, discussing the manner in which KIO resolutions would be binding under an earlier draft, not necessarily applicable to the wording of the draft from 17 September 2026). The September version of the bill somewhat shifts the fulcrum of this debate.
As KIO panels could depart from the holdings in earlier resolutions—so long as they explain their reasons—the basic question is, how will the resolutions affect the consideration of specific new cases heard by the chamber? And are the proposed regulations sufficient to ensure that a common interpretation will allow room for autonomous consideration of cases by members of the chamber, or will they encourage panels to reflexively or superficially duplicate previously adopted positions?
From discrepancy to resolution
The September draft proposes adding a new Art. 481a to the Public Procurement Law, under which, if discrepancies arise in the decisions issued by the National Appeal Chamber (which currently happens fairly often), the president of KIO will convene a general session of the KIO members to clarify the discrepancy through issuance of a “resolution” (uchwała). The president of the Public Procurement Office (UZP) could also call for this at her own initiative, with an indication of the issues that need to be unified (in which case the president of KIO would have 14 days to convene a general session of KIO members).
The authority of the KIO president and the UZP president in this respect would be essentially procedural. The direction to be taken in resolving the matter, and the decision on the binding nature of the interpretation, would be vested in the general session of KIO members.
The bill provides that adoption of a resolution would require a majority of votes, with the presence of over half of the chamber’s members. Then the resolution would be published on the UZP website, so that market participants could examine the adopted interpretation and the reasoning behind it. This procedure would be further backed by imposing on the KIO president a duty to “ensure the uniformity of the case law.”
But introduction of this procedure for adoption of resolutions does not in itself determine the significance of resolutions for KIO panels hearing appeals. This would follow primarily from the proposed Art. 475(3) of the act, under which, when deciding cases, members of the chamber “shall be guided by” these resolutions, and if they depart from them, they must explain the reasons in the justification for their ruling. The duty to justify departures from binding interpretations is also provided for in the proposed wording of Art. 559(3).
Greater predictability doesn’t guarantee a win in the National Appeal Chamber
From the perspective of the transparency of decisions, the benefit of this change for market players is obvious. Instead of parsing numerous conflicting rulings, they could cite the position of the chamber published in a single resolution. This would simplify the drafting of procurement documentation and tenders, as well as the subsequent assessment of whether it makes sense to appeal an adverse decision in a contract award procedure. If the parties know in advance what interpretation they will face, some disputes could be avoided altogether.
But greater predictability does not mean certainty of prevailing on an appeal. A resolution will help assess the strength of the parties’ legal arguments, but the result on the appeal will still depend on the factual findings, the evidence, and proper formulation of the allegations. Familiarity with the chamber’s position may help the parties decide whether to pursue a dispute, but will not be a substitute for preparing for the dispute. The spadework will still have to be done.
Another rationale for the use of such resolutions is the opportunity for KIO members to discuss issues in a broader group. Such a debate would expose arguments, exceptions and consequences that might escape the notice of a specific panel. This will encourage more carefully considered interpretation, but does not guarantee that the majority of members taking part in adoption of a resolution will reach the right solution. The correct interpretation must not be simply a compromise between competing positions. The value of a resolution will depend on the soundness of the arguments, the precision of the holding, and first and foremost, the detailed justification.
Similar cases, different legal issues
Precision is key not only when adopting a resolution, but also when applying it later. When applying a resolution, the panel must first determine whether the position adopted in the resolution covers the issue under consideration at all. The panel may generally agree with the interpretation set forth in the resolution, but nonetheless recognise that it doesn’t apply to the case as hand. This does not in itself mean departing from the position expressed in the resolution. There is only a departure in a situation where the resolution addresses the issue at hand but the panel doesn’t share the interpretation in the resolution.
This difference can be seen in the example of documents confirming the specifications of an offered piece of equipment. Imagine that KIO has adopted a resolution concerning such documents, but in the next case a document appears with a similar title but serving a different function (the contracting authority didn’t request the document to confirm compliance with the terms of the procurement, but instead the requested documents should be presented to the contracting authority at the stage of contract execution). In that example, it’s not sufficient to compare the names of the documents. It must be checked whether the reasoning in the resolution relies on a rule common to both situations, and whether both documents serve the same function in the contract award procedure.
Thus neither the similarity between the cases, nor the differences between them, determines whether it is necessary to apply the resolution. What is relevant is the circumstances on which the legal evaluation depends, and the panel should explain this in the justification for its ruling. Merely citing the resolution is insufficient, nor is it enough to make a general statement that the facts are different. Nonetheless, whether the panel decides to rely on the resolution, or to depart from it, the standard should be to prepare a precise and exhaustive justification for the ruling.
A real possibility of departure from resolutions
The duty to justify why the panel departed from applying a resolution may help improve the quality and transparency of KIO decisions. This means that the parties will be given the reasons for departure from the common position, and the general session of KIO members will receive arguments that may incline it to change its interpretation.
But it is not only departures from a resolution that will require explanation. A panel sharing the position in the resolution should also show why it applies in the case at hand, and the justification should refer to the factual aspects confirming the correctness of applying the resolution.
But here a major risk arises, because challenging the common interpretation may require more effort from the panel than following it would. This may incline KIO members to read the scope of a resolution too broadly, instead of closely verifying whether the resolution truly suits the state of facts in the case at hand. Therefore, it is worth the effort to systemically ensure conditions fostering independent analysis, particularly as an error enshrined in a resolution could impact many more cases than the occasional incorrect ruling in a specific case.
For this reason, when assessing the proposed reform, the organisation of the chamber’s work, the chamber’s resources, and the time for considering cases should all be taken into account. As the KIO members are expected to precisely determine the scope of the resolution, and to persuasively justify a differing position, they must also be afforded the conditions they need to perform both of these tasks. Otherwise, the formal discretion on the panel’s part may prove harder to employ in practice. The plan to increase the filing fee for appeals to the chamber, intended to reduce the chamber’s workload, may not be sufficient (assuming the fee increase is introduced at all).
The case law from the stage of appellate review of KIO rulings, i.e. from the Public Procurement Court, will also have an impact on the practice of applying resolutions from the general session of KIO members. The bill does not require the court to be guided by a KIO resolution, and thus a situation may arise where the court adopts a different interpretation than the general session of KIO members. In that case, the court’s reasoning may be used to justify further departures from the resolution in future cases.
However, the court’s ruling on a complaint would not change the position adopted by the chamber. After all, the proposed Art. 481a of the act links the launch of the procedure for adoption of a resolution with discrepancies in the case law of the chamber itself; it does not provide for a separate obligation to reconsider an issue because the court has reached a different interpretation. KIO panels hearing specific cases will thus be allowed to depart from a resolution, but the common position of the KIO general session will remain unchanged. Consequently, the panel’s discretion in deciding a specific case will not ensure that the resolution itself is revised.
The Supreme Administrative Court model
Another method of dealing with the questioning of an interpretation has been adopted in the procedure before the administrative courts. Under Art. 269 of the Administrative Court Procedure Law, if a panel of the provincial administrative court does not share the view expressed in a resolution of the Supreme Administrative Court (NSA), the panel in the lower court shall submit the issue to the relevant panel of NSA for reconsideration. It is not enough to argue the point in the justification for the lower court’s judgment. But this procedure is unnecessary if the NSA resolution simply doesn’t cover the situation at hand.
In this respect, the proposal concerning the National Appeal Chamber leaves greater discretion with the KIO panel, because it would allow the panel to depart from the common interpretation without having to submit the issue to the general session for reconsideration. The proposed model is thus more flexible than that provided for in proceedings before the administrative courts, but also places greater reliance on the quality of the justification and correct delineation of the scope of the resolution.
This is not an argument for simply carrying over the solutions from NSA to KIO. A duty to submit any discrepancy to the general session could limit the KIO panel’s decisional discretion. It is apparent, however, how necessary it is to include a method for revisiting and updating the correctness of the common position stated in a KIO resolution.
The case law won’t be uniform without updating resolutions
To comprehensively solve the problem of inconsistency in the case law, introducing the possibility of rehearing the issue should be considered, including in situations where a ruling by the court undermines the grounds for the KIO resolution.
If the parliament decides to introduce this instrument, it should consider laying out in the Public Procurement Law itself the procedure to be followed for re-examining a resolution whose grounds have been undermined by subsequent court decisions. It would be necessary to specify who can launch such a reassessment, the circumstances warranting it, and how the result will be published.
The point is not to automatically revise a KIO resolution every time a court issues a conflicting judgment. It first must be examined whether the court truly rejected the interpretation, or instead the difference between the rulings was due to the differing factual circumstances.
Reform in practice
So, ultimately the success of the reform will depend not so much on the mere introduction of KIO resolutions, but on the manner in which they are applied by KIO panels. Resolutions could increase the predictability of decisions, but only if the resolutions are a point of departure for analysis, not a shortcut taking the place of analysis.
Resolutions will need to have a clearly defined scope, a persuasive justification, and the possibility of correction. The right to make a justified departure from a resolution will protect the decision-making autonomy of the panel in the specific case, while a statutory procedure for reassessment would, over time, help maintain the currency of the overall chamber’s position. Only a combination of these two elements would enable uniformity to be treated as a tool for reaching correct decisions in cases—not as an end in itself.
The assumptions behind the proposed reform may thus be heading in the right direction, but only the practice will allow for an assessment of whether they translate into higher-quality decisions, not simply more consistent ones.
Justyna Góźdź, attorney-at-law, Infrastructure, Transport, Public Procurement & PPP practice, Wardyński & Partners