July 2026
A public institution publishes a game: when you cannot take a shortcut with a single-source procedure
9 minutes
“We own all the rights to this game, so no other publisher can publish it—we’ll award the contract using a single-source procedure." This statement sounds logical. And it is the exact opposite of the truth. If you own the copyright, you can license the game to any publisher on the market. There is no sole contractor—which means the grounds for using a special procedure do not apply.
If you are managing a game publishing project at a cultural institution, museum, local government body, or another public entity, sooner or later you will hear the question: “Can we do it faster?" The answer is yes—but not by bypassing the procurement procedure. Faster means arranging the work in the right order so that the procedure does not derail the release schedule.
In this article, I will explain why the two grounds most commonly cited to justify a special procedure do not apply to publishing a game, what risks arise from using them without justification, and how to structure the process from platform analysis through to publication of the contract notice. At the end, you will find a checklist—9 questions to ask before publishing the notice and 7 issues that a game publishing agreement must address.
Key concepts worth knowing
Before we get to the substance, here are a few terms that will appear in the article:
| Term | Meaning |
|---|---|
| Public Procurement Law threshold | From 1 January 2026, it is PLN 170,000 net. Below this threshold, the Public Procurement Law does not apply, but you must follow your internal regulations and the rules laid down in the Public Finance Act (Public Procurement Office—threshold increase) |
| Internal regulations | A document adopted by the contracting authority that sets out the procedures and rules for awarding contracts below the Public Procurement Law threshold. The grounds specified in it must be interpreted just as strictly as statutory provisions |
| Single-source procedure | A procedure in which the contracting authority negotiates with a single selected contractor without publishing a notice. It requires strictly defined conditions to be met |
| Publishing agreement (publishing deal) | An agreement between a game’s creator (developer) and a publisher that governs distribution, revenue sharing, marketing, and liability |
| Description of the subject matter of the contract | A document specifying what the contracting authority wants to purchase and on what terms |
| Recoupment | A mechanism under which the publisher first recovers its costs (e.g. marketing and certification) from sales revenue before it begins sharing profits with the developer |
Why a contract below the threshold does not mean complete discretion
A contract value below PLN 170,000 net does not exempt you from following the rules. Only the source of those rules changes—instead of the Public Procurement Law, you apply:
- Article 44(3) and (4) of the Public Finance Act—purposefulness, economy, and efficiency of expenditure
- The contracting authority’s internal regulations—with specific procedures, thresholds, and grounds
- Management control principles—documentation of decisions and the reasons behind them
Special procedures in internal regulations are usually modeled on the grounds for single-source procurement set out in Article 214(1) of the Public Procurement Law. They must therefore be interpreted just as strictly as the statutory grounds. A broad interpretation is not permitted.
What does this mean for your project? Even if the contract for publishing the game falls below the threshold, you must identify the specific provision of the internal regulations (section, subsection, item) that justifies the selected procedure. And those grounds must match the facts.
Two grounds that do not apply to publishing a game
The “additional supplies" grounds—a game is not an installation
Internal regulations often include grounds modeled on “additional supplies"—the partial replacement of products or installations already supplied, an increase in current supplies, or the expansion of existing installations.
The problem is that a computer game is an intangible asset. It is not a product that can be replaced or an installation that can be expanded. Publishing a game on a digital distribution platform is a service—not a supply.
Even if your internal regulations do not literally use the word “installation," check whether the grounds refer to tangible goods. If they do, they do not cover a game, application, or other digital product.
The “sole contractor" grounds—your IP rights are an argument against, not in favor
This is the most common reasoning error. It looks like this:
“We own the exclusive rights to the game → no one else can publish it → there is only one possible contractor → we can award the contract using a single-source procedure."
Article 214(1)(1)(a) of the Public Procurement Law requires all four of the following conditions to be met:
- There is only one contractor on the market
- The reasons are technical and objective (insurmountable)
- There is no reasonable alternative solution
- The contracting authority has not deliberately narrowed the contract parameters
The case law of the National Appeals Chamber confirms this interpretation. In case KIO 3296/21, the Chamber stated that the impossibility must be insurmountable, rather than merely difficult. In turn, KIO 2493/22 confirmed that all four conditions must be demonstrated cumulatively.
Now reverse the logic: since you own the copyright to the game, you can grant a publishing license to any publisher on the market. By definition, there is no sole possible contractor. The contracting authority’s ownership of exclusive rights is an argument against using the sole-contractor procedure.
| Situation | Is the sole-contractor procedure permitted? |
|---|---|
| An external entity owns the rights to the game and does not grant licenses | There may be grounds for it—an analysis is required |
| The contracting authority owns the rights to the game | No—the contracting authority can license the game to any publisher |
| The incumbent contractor “knows the project best" | No—an information advantage does not create a technical monopoly |
| Only one publisher has an account on the selected platform | No—an account can be created, so this is not an insurmountable obstacle |
Why “extreme urgency" will not work either
Article 214(1)(5) of the Public Procurement Law provides for a single-source procedure in exceptional circumstances that the contracting authority could not have foreseen and that require immediate action. The case law of the National Appeals Chamber (including KIO 591/19 and KIO 1415/17) indicates that an extraordinary event is required.
A planned game release, a funding application deadline known in advance, or scheduled industry trade fairs do not satisfy the unforeseeability requirement. These are events that the contracting authority knows or should know about in advance.
If the schedule has been delayed, check why. A delay resulting from internal organizational decisions does not create “exceptional circumstances" within the meaning of the provision.
Risks of unjustifiably using a special procedure
The unjustified use of a single-source procedure or a special procedure under internal regulations does not automatically result in a penalty. But the risks are real:
| Type of risk | Description | Severity |
|---|---|---|
| Public finance discipline | Article 17 of the Act on Liability for Breach of Public Finance Discipline—penalties ranging from a warning to disqualification from holding public office | High |
| Audit findings | Post-audit recommendations by the supervisory authority and notification of the public finance discipline ombudsman | High |
| Financial correction | For EU-funded projects—repayment of some or all of the funding | High |
| Challenge to expenditure eligibility | For projects funded by grants from the Ministry of Culture and National Heritage or local government programs | Medium |
| Reputational risk | A public dispute over the transparency of public spending on a game project | Medium |
The risk increases when there is no documentation of market research, when the internal regulations have been departed from without justification, or when competition has been restricted.
The right order of work—from platform analysis to publication of the notice
Instead of looking for a way to bypass the procedure, arrange the work so that the procedure does not delay the release. The order is substantive, not organizational—reversing it forces changes to the description of the subject matter of the contract after the bids have been opened.
Step 1: finalize the list of distribution platforms
Before you write even a single sentence of the description of the subject matter of the contract, formally decide which platforms the game will be released on: Steam, GOG, Epic Games Store, Google Play, App Store—or others.
Why must this happen before drafting the description? Because each platform’s requirements determine the content of the agreement and the contract description.
Step 2: analyze the platform documentation
For each selected platform, examine four issues:
- Who publishes through the developer account—the contracting authority or the publisher?
- Who is responsible for compliance with the platform’s policies—for example, the Google Play Developer Program Policies provide for the removal of apps and termination of accounts in the event of violations
- Whose account receives sales revenue—this affects the settlement model and tax obligations
- Who can withdraw the title from sale—the contracting authority should retain this control
A realistic timeframe for this analysis is about one week.
Step 3: prepare a template publishing agreement
The agreement template should be prepared before the description of the subject matter of the contract, not after the contractor has been selected. This ensures that:
- The description reflects the actual scope of the contract
- Contractors submit bids based on known terms
- There is no need to negotiate the agreement after the award decision—only the details need to be clarified
A realistic timeframe is about two days after completing the platform analysis.
Step 4: draft the description of the subject matter of the contract
The description must be clear and exhaustive (Article 99(1) of the Public Procurement Law) and must not impede fair competition (Article 99(4) of the Public Procurement Law). For game publishing services, this means:
- Describe the scope of the publisher’s services (distribution, marketing, technical support, localization)
- Specify the platforms—but do not impose disproportionate restrictions (e.g. requiring a developer account is permissible if it is functionally necessary)
- Define participation requirements as a measurable minimum (e.g. “at least 2 titles published on platform X within the last 3 years"), rather than a general “portfolio"
- Attach the agreement template as an appendix
Step 5: reserve the technical team’s time
The deadline for submitting bids continues to run regardless of whether the contracting authority has anyone available to answer contractors’ questions. The questions will concern the game engine, builds, language versions, platform certification requirements, and the scope of post-release support.
Legal counsel will answer some of the questions. The rest will require input from the technical team—and their time must be allocated to named individuals in the schedule.
| Stage | What you do | Time |
|---|---|---|
| Finalizing the list of platforms | Formal decision by the head of the contracting authority | 1–2 days |
| Analysis of platform documentation | 4 questions per platform | ~1 week |
| Publishing agreement template | Preparation based on the analysis | ~2 days |
| Description of the subject matter of the contract | Description of the scope, conditions, and appendices | 3–5 days |
| Publication of the contract notice | Publication under the procedure set out in the internal regulations | 1 day |
| Answers to contractors’ questions | Technical team + lawyer | Throughout the bid submission period |
7 issues that a game publishing agreement must address
A publishing agreement is not a standard template—it must account for the specific features of the platforms, the settlement model, and the contracting authority’s rights as the IP owner.
| No. | Issue | Why it matters |
|---|---|---|
| 1 | Scope of the license—by territory and platform | Defines where and on which platforms the publisher may sell the game |
| 2 | Term and what happens to the title after the agreement ends | Who keeps the game on sale, who is responsible for player support, and how migration is handled |
| 3 | Revenue split and settlement dates | Definition of “revenue" (after which deductions), the scope of recoupable costs, and the frequency of settlements |
| 4 | The publisher’s marketing obligations | Scope, budget, and measurable performance criteria |
| 5 | The contracting authority’s right to withdraw the title | The contracting authority should retain control over the game’s availability on the platforms |
| 6 | Control over changes and updates | Who decides on patches, DLC, and price changes |
| 7 | Right to audit settlements | Directive (EU) 2019/790 provides for an obligation to supply annual information on revenue—but the agreement should expressly govern the right to inspect the books (Directive 2019/790) |
For publicly funded projects, also include the publisher’s reporting obligations toward the contracting authority and rules for accounting for revenue as the institution’s income (Article 28 of the Act on Organizing and Conducting Cultural Activity—ISAP).
Checklist: 9 questions before publishing the contract notice
Before you publish the notice, check:
- Who owns the economic copyright to the game—and has this been established in writing?
- Is the contemplated procedure based on a specific provision of the internal regulations—and do those grounds cover intangible assets?
- Has the list of distribution platforms been finalized and approved by a formal decision?
- Has the documentation for each platform been analyzed in terms of the publishing entity, policy compliance, revenue, and withdrawal rights?
- Is the publishing agreement template ready and attached to the description of the subject matter of the contract as an appendix?
- Does the description avoid requirements that disproportionately restrict competition (e.g. disproportionate experience requirements)?
- Has the technical team reserved time to answer contractors’ questions?
- Does the procurement file include a note documenting the reasons for selecting the procedure—with a quotation of the relevant grounds and supporting arguments?
- Does the schedule allow time for potential clarifications and amendments to the description before the bid submission deadline?
If the answer to any question is “no," return to the relevant step before publishing the notice.
How we can help
Preparing a game publishing procurement procedure for a public entity requires a combination of three areas of expertise: public procurement law, copyright law, and knowledge of the specific features of digital distribution platforms. These skills are rarely found within a single in-house team.
We support cultural institutions, museums, and other public entities through three service options:
- Opinion on the permissible procedure and a checklist—we verify the legal grounds for the selected procedure, identify risks, and provide a ready-to-use pre-publication checklist
- Platform analysis and publishing agreement template—we analyze the documentation of the selected distribution platforms and prepare an agreement template as an appendix to the procurement documentation
- Full process—from platform analysis and the description of the subject matter of the contract to support in answering contractors’ questions and supervision of the procedure’s compliance with the internal regulations
We combine experience in IT law, IP, and contracts with a public procurement perspective—ensuring that the documentation is consistent from day one.
If you are planning to publish a game or another digital product and want to put the process on a sound legal footing—contact us.
A public entity publishing a game—get the process in order before publishing the contract notice
For game publishing, the single-source procedure may look like a shortcut, but it ultimately takes longer. Owning the IP rights does not justify a sole-contractor procedure—it actually rules it out. The urgency grounds do not cover planned releases. And a description of the subject matter drafted without analyzing the platforms will need to be amended after the bids have been opened.
Instead of looking for exceptions to the principle of competition, follow the right order: platform → agreement → description of the subject matter → procurement procedure. This protects the release schedule and reduces the risk that the contract will be challenged during an audit.
If you need support in preparing a game publishing procurement procedure—contact us.
Frequently asked questions
Will anyone really scrutinize a contract below the PLN 170,000 threshold?
Yes. Contracts below the Public Procurement Law threshold are subject to management control, internal audit, and review by the supervisory authority (the institution’s organizing body). Projects financed by grants or EU funds are also subject to review by the authority managing the relevant program. Failure to document market research or an unjustified departure from the internal regulations may result in post-audit recommendations, notification of the public finance discipline ombudsman, or a financial correction.
We own the exclusive rights to the game—why can’t we select a publisher without a procurement procedure?
Precisely because you own the rights, you can grant a publishing license to any publisher on the market. The sole-contractor grounds require there to be only one entity on the market capable of performing the contract for objective technical reasons. Since you can license the game to multiple publishers, these grounds do not apply. The case law of the National Appeals Chamber (KIO 3296/21, KIO 2493/22) confirms that all conditions must be met cumulatively and that the impossibility must be insurmountable.
How much extra time do I need if I analyze the platforms and draft the agreement first?
Analyzing the platform documentation takes about one week. Preparing the publishing agreement template takes about two days after the analysis is complete. Drafting the description of the subject matter based on the completed agreement takes 3–5 days. In total, this means about 2–2.5 weeks of advisory work before publication. The opportunity cost of an error is higher: amending the description after bids have been opened, canceling the procedure, or delaying the release.
Do I need to finalize the list of platforms before the procurement procedure?
Yes. Platform requirements determine the content of the agreement and the description of the subject matter—who publishes, who is responsible for policy compliance, how revenue is shared, and who can withdraw the title. If you add a platform after publishing the notice, you will change the scope of the contract—which may require amending the description or canceling the procedure. If the publisher proposes an additional platform, you can provide for this in the agreement as an option, but the basic scope must be known before publication.
What happens when the agreement with the publisher ends—will the game disappear from stores?
That depends on the agreement. This is why the publishing agreement must expressly govern what happens to the title after it ends: who keeps the game on sale, who is responsible for player support, and how migration to the contracting authority’s account is handled. If you do not address this, you risk the game disappearing from the platforms or remaining on the publisher’s account beyond your control.
Can I require the publisher to have accounts on specific platforms in the description of the subject matter?
Requiring a developer account is permissible if it is functionally necessary to perform the contract and cannot be replaced by the contracting authority’s account. Participation requirements must be proportionate (Article 112(1) of the Public Procurement Law)—specify a measurable minimum level of experience instead of a general “portfolio." A disproportionate requirement may violate the principle of equal treatment.
