Appeals and Interventions via e-Delivery Admissible After All. Public Procurement Court Sets Aside KIO Order Discontinuing Proceedings (XXIII Zs 56/26)

By an order of 15 May 2026 (case no. XXIII Zs 56/26), the Regional Court in Warsaw, hearing a complaint filed by the President of the Public Procurement Office (UZP), set aside the order of the National Appeals Chamber (KIO) of 24 February 2026 (KIO 458/26). In that order, the Chamber had discontinued the appeal proceedings, finding that an appeal lodged at the electronic delivery address, rather than at the electronic inbox of the Office, had not been validly filed. The court held that e-Delivery is an admissible channel for lodging appeals in electronic form. The procedural aspect of the ruling is equally significant: the court neither ruled on the merits nor referred the case back for re-examination, but confined itself to setting aside the Chamber's order.

The KIO's position

The facts of the case were as follows: the contractor lodged its appeal within the time limit, in electronic form, at the electronic delivery address referred to in Article 2(1) of the Act on Electronic Delivery. It did not, however, send the appeal to the electronic inbox of the UZP.

The Chamber based its decision on § 4(1) of the Regulation of the Prime Minister of 30 December 2020 on the procedure for the examination of appeals by the National Appeals Chamber. That provision states that documents in appeal proceedings in electronic form are to be sent to the electronic inbox of the Office or to a designated e-mail address, with appeals and notices of intervention to be sent to the electronic inbox. In the KIO's view, treating an appeal lodged through another channel as valid would render that provision a dead letter. Consequently, the Chamber found that further proceedings were inadmissible and discontinued them under Article 568(2) of the Public Procurement Law (PZP), ordering the appeal fee to be refunded to the appellant.

The court's position: the statute prevails over the regulation

The court agreed with the President of the UZP. The starting point is Article 508(2) PZP, which, as amended with effect from 1 July 2021, provides that documents in electronic form are lodged by means of electronic communication, including at the electronic delivery address. The e-Delivery address is therefore expressly named in the statute as an admissible means of lodging a document in appeal proceedings.

The regulation is an implementing instrument that elaborates on the statute. The court noted that § 4(1) of the regulation itself refers to Article 508(2) PZP, and that the reference to the electronic inbox was intended to supplement the range of communication channels without repeating what already follows from the statute. The absence of any mention of e-Delivery in the regulation therefore does not mean that this channel is excluded. The court also rejected the view that § 4(1) of the regulation is a "separate provision" within the meaning of Article 3(1)(d) of the Act on Electronic Delivery that would exclude the use of the electronic delivery address.

The court described the Chamber's interpretation as selective and overly formalistic. Even if the manner of lodging an appeal could raise doubts, the provisions should be read so that they can be applied together, not in a way that uses a regulation to restrict the access to appeal proceedings provided for in the statute. Since the appeal was validly lodged and there were no other obstacles, discontinuing the proceedings infringed Article 568(2) PZP.

The scale of the issue is considerable. In the complaint proceedings, the President of the UZP submitted information showing that since 1 January 2026, 238 appeals had been lodged with the President of the KIO at the electronic delivery address, 62 of which had by then been decided on the merits. The position taken in KIO 458/26 was therefore inconsistent with the Chamber's own practice to date.

Procedural effect: setting aside without referral for re-examination

The President of the UZP had asked the court to amend the order and to decide the appeal on the merits itself. The court did not do so, and its reasoning on this point is relevant well beyond the question of e-Delivery.

Under Article 588(2) PZP, where a complaint is upheld, the court amends the contested ruling and decides on the merits, and in other cases it issues an order. The provision excludes the application of Article 386 § 4 of the Code of Civil Procedure (KPC), that is, setting aside a ruling and referring the case back for re-examination. The court stressed that the statute excludes only this one mechanism, not every possibility of setting aside a ruling of the Chamber. The prohibition applies to rulings issued after the appeal has been examined on the merits. In this case the Chamber did not examine the pleas at all, so in the court's opinion there was nothing to "re-examine".

Accordingly, the court neither amended the order nor ruled on the merits. In the court's view, Article 386 § 1 KPC, applied mutatis mutandis in complaint proceedings, concerns the amendment of a ruling on the merits, and there was no such ruling in this case. If the court were to examine the appeal for the first time, it would take over the tasks of the KIO, a specialised body established to hear appeals, and would infringe the principle of two-tier proceedings under Article 78 of the Polish Constitution. In this context, the court referred to the Supreme Court's order of 16 April 2026 (II NSK 12/26), in which the Supreme Court accepted a similar approach in a case concerning the setting aside of an order of the President of the KIO returning an appeal (XXIII Zs 86/25), as well as to the earlier Supreme Court order of 29 January 2016 (II CZ 93/15), according to which setting aside a formal ruling of the Chamber reopens the way to examination of the case on the merits.

As a result, the KIO's order has been removed from the legal system, and the Chamber is obliged to proceed with the appeal and examine it. Since the court neither amended the ruling nor decided on the merits, it ruled by way of an order rather than a judgment.

It should be noted that the President of the UZP disagreed with this approach and has filed a cassation appeal with the Supreme Court on this point. The cassation appeal has not yet been decided.

Practical implications

The reasoning is based on Article 508(2) PZP, which applies to all documents lodged in electronic form in appeal proceedings. The court's reasoning therefore applies equally to notices of intervention, which § 4(1) of the regulation treats in the same way as appeals.

Although the order concerns a single case and does not bind the Chamber in other proceedings, contractors have certainly gained a strong argument should an appeal or intervention lodged via e-Delivery be challenged.

The ruling also offers important guidance on how the public procurement court deals with complaints against formal rulings of the Chamber and of the President of the Chamber, such as orders discontinuing proceedings, rejecting an appeal or returning it. In such cases, a contractor should not expect the court to examine its pleas on the merits. If the complaint is upheld, the case returns to the KIO, which must be taken into account when assessing the duration of the dispute and the risk of the contracting authority concluding the contract in the meantime