For at least several years, the practice of submitting subject-related evidentiary means (PŚD) has raised questions on both sides of the process: may a contractor attach PŚD to its bid, and if so – how should the contracting authority proceed? Below we present systematised explanations together with conclusions from the latest KIO rulings.

Legal basis – three key provisions

Article 126(1) of the Public Procurement Law (PPL) (EU procedure): The contracting authority requests the contractor whose bid was ranked highest to submit PŚD within a time limit of not less than 10 days.

Article 274(1) PPL (national procedures): An analogous mechanism of requesting the submission of PŚD, with a minimum time limit of 5 days.

Article 127(2) PPL: The contractor does not have to submit PŚD that the contracting authority already holds, if it indicates them and confirms that they are correct and up to date.

Latest KIO case law – main theses

1. KIO 225/23 (8 February 2023) – submitting some of the PŚD together with the bid does not infringe the PPL; the contracting authority may limit the request only to the missing documents (e.g. the insurance policy).
2. KIO 587/23 (15 March 2023) – if the contractor submitted PŚD on its own initiative without a request, and the contracting authority notices deficiencies in those documents, the procedure under Article 126/274 PPL (request) should be applied first, and only then, where appropriate, Article 128 PPL (supplementation/explanations).
3. KIO 1869/22 (22 July 2022) – Article 127(2) PPL has real significance: where the contracting authority holds the documents and the contractor indicates them and confirms that they are up to date, there is no need to submit them again.
4. The prevailing KIO case law of 2024 (including KIO 1541/24; KIO 2023/24-2025/24) emphasises the importance of the correct form of PŚD and the proper application of Article 128 PPL, without questioning the admissibility of earlier (voluntary) submission of PŚD.

As can be seen from the above, KIO case law on this matter is still not uniform and causes many practical problems for contracting authorities. In such a situation, as a precaution, we recommend sending the contractor a request covering the subject-related evidentiary means submitted together with the bid, so that the contractor can confirm that they are up to date and correct under Article 127(2) PPL.

The issue of PŚD being “up to date”

PŚD must be up to date as at the day of their submission in response to the contracting authority’s request. If they were already attached at the bid stage, it is advisable in practice for the contractor – when responding to the request – to clearly indicate which documents were submitted earlier and to confirm that they are up to date and correct. This makes it possible to use Article 127(2) PPL without repeating the same attachments.

Practical tips for contracting authorities

1) Evaluate the bids and identify the highest-ranked bid.

2) Request the contractor to submit PŚD (Article 126 or Article 274 PPL) – specify a complete, precise list of documents.

3) If the contractor previously attached PŚD to the bid, allow it to use Article 127(2) PPL.

4) Avoid excessive formalism (e.g. requiring the same correct document to be submitted again).

Practical tips for contractors

• You may attach PŚD to your bid – this is permitted and may speed up the procedure.

• Make sure the subject-related evidentiary means are up to date at the time you submit them.

• When responding to the request, indicate precisely the names and locations of the files submitted earlier (e.g. “Annex No. 4 – National Criminal Register (KRK) extract of 12.03.2025”) and confirm that they are up to date.

• If the contracting authority points out deficiencies, be prepared to supplement/explain under Article 128 PPL.

• Remember the exceptions where a document should be submitted together with the bid (Article 117(4), Article 118(3) PPL).

The most common mistakes and how to avoid them

• On the part of contracting authorities: omitting the formal request under Article 126/274 PPL when the bid contains some PŚD – according to the prevailing position in KIO case law, the request should be sent anyway.

• On the part of contracting authorities: rejecting a bid without using Article 128 PPL (supplementation/explanations).

• On the part of contractors: submitting PŚD “just in case” without making sure they are up to date.

• On the part of contractors: failure to clearly indicate the documents submitted earlier and to confirm that they are up to date (the key to using Article 127(2) PPL).

Summary

The prevailing view at present is that PŚD can be effectively attached to the bid, but the request under Article 126/274 PPL remains the cornerstone. In response to the request, the contractor may indicate the documents submitted earlier and confirm that they are up to date, which allows the verification stage to be closed efficiently without unnecessary formalism. Both contracting authorities and contractors benefit from following a simple sequence: request → indication/up-to-dateness → possible supplementation (Article 128 PPL).