A Polish public institution is publishing a game: when single-source procurement is not a shortcut
July 2026 · 9-minute read
“We own all the rights to the game, so no other publisher can release it. We can award the contract directly.”
That reasoning sounds plausible, but it reverses the key point. If your institution owns the rights, it can license the game to a publisher it selects through a procurement process. Ownership of the rights does not, by itself, make one publisher the only possible contractor.
If you manage a game release for a Polish cultural institution, museum, local government unit, or other public entity, someone will eventually ask whether the publisher can be selected faster. Often, the better way to protect the release date is not to bypass procurement. It is to complete the platform and contract work in the right order before inviting offers.
This article explains why commonly cited grounds for a special procedure may fail, what an unjustified direct award risks, and how to prepare the procurement. It ends with nine questions to ask before publishing a notice and seven issues to settle in the game publishing agreement.
Polish procurement terms you need to know
| Term | Meaning |
|---|---|
| Public Procurement Law threshold | From January 1, 2026, the threshold for applying Poland’s Public Procurement Law (Prawo zamówień publicznych, or Pzp) is PLN 170,000 net. Below it, the Pzp does not apply, but the public entity must follow its internal procurement rules and the Public Finance Act. See the Polish Public Procurement Office’s notice on the threshold increase. |
| Internal procurement rules | The contracting authority’s rules for contracts below the Pzp threshold, including procedures, value thresholds, and grounds for exceptions. Grounds for a special procedure must be interpreted strictly. |
| Single-source procedure | A procedure in which the contracting authority negotiates with one selected contractor without publishing a notice. It requires specific grounds. |
| Publishing agreement | The agreement governing the publisher’s distribution, revenue sharing, marketing, and responsibilities in relation to the game. |
| OPZ | Short for opis przedmiotu zamówienia: the description of what the contracting authority wants to procure and on what terms. |
| Recoupment | A mechanism under which a publisher first recovers agreed costs, such as marketing or certification costs, from sales proceeds before sharing profits with the developer. |
Below the statutory threshold does not mean free choice
A game publishing contract worth less than PLN 170,000 net is not outside all procurement controls. The source of the applicable rules changes. The contracting authority must still consider:
- Article 44(3) and (4) of the Public Finance Act, concerning the purpose, economy, and efficiency of expenditure.
- Its internal procurement rules, including the relevant procedures, thresholds, and grounds for using them.
- Management control requirements, including documentation of decisions and their reasons.
Special procedures in internal rules are commonly modeled on the single-source grounds in Article 214(1) Pzp. Those grounds must be read strictly; an expansive interpretation is not permitted.
For a below-threshold game publishing contract, identify the exact provision of the internal rules—section, subsection, and item—that supports the proposed procedure. Then check whether its wording fits the facts. A general preference for a particular publisher is not enough.
Why the usual grounds for selecting one publisher fail
“Additional supplies”: publishing a game is not expanding an installation
Some internal rules contain an exception modeled on “additional supplies”: partially replacing products or installations already supplied, increasing current supplies, or expanding existing installations.
The approved analysis draws a distinction between that type of supply and publishing a computer game. A game is intangible; publishing it on a digital distribution platform is a service, not a supply or the expansion of an installation.
Check the wording of your own rules. Even if they do not use the word “installation,” an exception directed at tangible goods does not, on this analysis, cover a game, app, or other digital product.
“Only one contractor”: owning the IP points the other way
The mistaken argument usually runs as follows:
“We hold exclusive rights to the game → nobody else can publish it → there is only one possible contractor → we can award the contract directly.”
Article 214(1)(1)(a) Pzp requires four conditions to be established together:
- There is only one contractor on the market.
- The reasons are objective and technical, and the obstacle is insurmountable.
- There is no reasonable alternative.
- The contracting authority has not deliberately narrowed the contract requirements.
The Polish National Appeals Chamber (Krajowa Izba Odwoławcza, or KIO), which hears public procurement disputes, has addressed these requirements. In KIO 3296/21, it indicated that performance must be impossible for others, not merely difficult. KIO 2493/22 confirms that all four conditions must be demonstrated cumulatively.
If the contracting authority owns the game rights, it can grant a publishing license to a publisher on the market. Its exclusive rights are therefore an argument against treating a particular publisher as the sole possible contractor.
| Situation | Can it support a sole-contractor procedure? |
|---|---|
| An external party owns the game rights and will not grant a license | Possibly; the circumstances require analysis. |
| The contracting authority owns the game rights | No, on the article’s analysis: it can license a publisher. |
| The incumbent “knows the project best” | No. An information advantage does not create a technical monopoly. |
| Only one publisher currently has an account on the chosen platform | No. An account can be created; this is not an insurmountable obstacle. |
A planned release is not an unforeseeable emergency
Article 214(1)(5) Pzp provides for a single-source procedure in exceptional circumstances the contracting authority could not have foreseen and that require immediate action. KIO decisions including KIO 591/19 and KIO 1415/17 indicate that an extraordinary event is needed.
A planned release date, a funding application deadline known in advance, or a scheduled industry event does not meet the unforeseeability requirement. If the project has slipped, establish why: delays caused by internal organizational decisions do not create exceptional circumstances under this provision.
What an unjustified special procedure risks
Using a single-source procedure—or an exceptional procedure under internal rules—without valid grounds does not automatically trigger a sanction. It does, however, create material risks.
| Risk | Potential consequence | Severity |
|---|---|---|
| Breach of public finance discipline | Article 17 of the Act on Liability for Breach of Public Finance Discipline provides for sanctions ranging from an admonition to a ban on holding relevant functions. | High |
| Control or audit findings | Recommendations from a supervisory body and notification of the official responsible for public finance discipline proceedings. | High |
| Financial correction | For EU-funded projects, repayment of some or all of the funding. | High |
| Challenge to expenditure eligibility | A particular concern for grants from Poland’s Ministry of Culture and National Heritage or local government programs. | Medium |
| Reputational damage | A public dispute about transparency in spending public funds on the game. | Medium |
The risks increase if market research is undocumented, the institution departs from its internal rules without a basis, or competition has been restricted.
Prepare the procurement in the right order
Do not start by drafting an OPZ around a preferred publisher. Settle the platforms and publishing model first, so the procurement documents describe the contract bidders are actually being asked to perform. Reversing that order can force changes to the OPZ after bids have been opened.
1. Approve the distribution platforms
Before drafting the OPZ, formally decide where the game is intended to launch: Steam, GOG, Epic Games Store, Google Play, the App Store, or other platforms.
This decision shapes the agreement and the procurement requirements. Each platform may affect who publishes the game, which account is used, how sales proceeds are received, and who controls the listing.
2. Review each platform’s documentation
For every selected platform, answer four questions:
- Who publishes through the developer account—the institution or the publisher?
- Who is responsible for compliance with platform policies? For example, the Google Play Developer Program Policies provide for app removal and account termination in the event of violations.
- Whose account receives sales proceeds? This affects the settlement model and tax obligations.
- Who can withdraw the game from sale? The contracting authority should retain that control.
Allow about one week for this analysis.
3. Draft the publishing agreement before the OPZ
Prepare the agreement template before selecting a contractor, not afterward. Doing so means the OPZ reflects the intended scope, bidders know the proposed terms, and only details—not the underlying deal—need clarifying after the award.
Allow about two days after the platform review.
4. Draft a clear, proportionate OPZ
Article 99(1) Pzp requires a clear and exhaustive description of the subject matter of the contract; Article 99(4) prohibits a description that impedes fair competition. For game publishing services:
- Specify the publisher’s services, such as distribution, marketing, technical support, and localization.
- Identify the platforms without imposing disproportionate restrictions. A developer-account requirement can be justified where it is functionally necessary.
- Express participation requirements as a measurable minimum—for example, “at least two titles published on platform X in the last three years”—rather than asking vaguely for a “portfolio.”
- Attach the publishing agreement template.
5. Reserve technical staff for bidder questions
The bid submission period continues to run whether or not your team is available. Publishers may ask about the engine, builds, languages, platform certification, and post-release support.
Counsel can answer some questions; technical staff must answer others. Assign named team members and reserve their time in the schedule.
| Stage | Work | Indicative time |
|---|---|---|
| Approve platforms | Formal decision by the institution’s head | 1–2 days |
| Review platform documents | Answer the four questions for each platform | About 1 week |
| Draft publishing agreement | Use the platform analysis to set the terms | About 2 days |
| Draft OPZ | Define scope and conditions; attach the agreement | 3–5 days |
| Publish notice | Follow the applicable internal procedure | 1 day |
| Answer bidder questions | Technical team and counsel respond | Throughout the bid period |
Seven issues the publishing agreement must settle
A game publishing agreement should reflect the selected platforms, settlement model, and the institution’s position as IP owner. It needs express answers to these questions:
| No. | Issue | What to settle |
|---|---|---|
| 1 | Scope of the license | The territories and platforms on which the publisher may sell the game. |
| 2 | Term and end-of-contract arrangements | Who keeps the game on sale, supports players, and handles migration when the agreement ends. |
| 3 | Revenue split and settlement timing | How “revenue” is defined, which deductions apply, which costs may be recouped, and how often accounts are settled. |
| 4 | Publisher’s marketing obligations | The activities, budget, and measurable performance criteria. |
| 5 | Institution’s right to withdraw the game | How the contracting authority retains control over the title’s availability. |
| 6 | Changes and updates | Who decides on patches, downloadable content (DLC), and pricing changes. |
| 7 | Right to audit settlements | Directive (EU) 2019/790 provides for annual information on revenue; the agreement should also expressly address the right to inspect the relevant books. |
For publicly funded projects, also address the publisher’s reporting to the institution and how receipts are accounted for as institutional income under Article 28 of the Act on Organizing and Conducting Cultural Activity (Polish legislative database).
Nine questions before publishing the notice
- Who holds the economic copyright to the game, and is that documented in writing?
- Which exact provision of the internal procurement rules supports the proposed procedure, and does it cover intangible products?
- Has the platform list been finalized and formally approved?
- For each platform, have you checked who publishes, who handles policy compliance, who receives proceeds, and who can withdraw the title?
- Is the publishing agreement template ready and attached to the OPZ?
- Does the OPZ avoid requirements that restrict competition disproportionately, including excessive experience requirements?
- Are technical staff available to answer bidder questions?
- Does the procurement file contain a note quoting the relevant procedural ground and explaining why it applies?
- Does the schedule allow for clarifications and OPZ changes before the bid deadline?
If any answer is “no,” return to that step before publishing.
Frequently asked questions
Will anyone review a contract below PLN 170,000 net?
Yes. Below-threshold contracts remain subject to management control, internal audit, and review by the body overseeing the institution. Grants and EU funding can bring review by the relevant program authority. Missing market-research records or an unjustified departure from internal rules may lead to control recommendations, notification of the official responsible for public finance discipline proceedings, or a financial correction.
We own exclusive rights to the game. Why can’t we simply choose a publisher?
Because ownership allows the institution to license the game to publishers. The sole-contractor ground requires an objectively technical, insurmountable reason why only one entity can perform the contract—not merely a decision to work with one entity. KIO 3296/21 and KIO 2493/22 address the cumulative requirements and the need for an insurmountable obstacle.
How long does the platform-and-agreement work add before publication?
Allow about a week for platform documentation, two days for the agreement template, and three to five days for the OPZ: approximately 2–2.5 weeks of advisory work before publication. An error may cost more time through changes after bid opening, cancellation of the procedure, or a delayed release.
Must the platform list be final before procurement starts?
The basic scope must be known before the notice is published. Adding a platform afterward changes the contract scope and may require an OPZ amendment or cancellation. You can provide in the agreement for an additional platform proposed by the publisher as an option.
Will the game disappear from stores when the publishing agreement ends?
That depends on the contract and the account arrangements. Specify who keeps the title on sale, supports players, and migrates it to the institution’s account. Without those terms, the game may disappear or remain on the publisher’s account without the institution’s control.
Can the OPZ require accounts on particular platforms?
A developer-account requirement is permissible if it is functionally necessary and the institution’s own account cannot be used instead. Participation requirements must be proportionate under Article 112(1) Pzp. State a measurable minimum rather than asking for a general “portfolio”; a disproportionate condition may breach equal treatment.
How we can help
A public-sector game release calls for coordinated procurement, copyright, contract, and platform analysis. We support cultural institutions, museums, and other public entities with:
- An opinion on the permissible procedure and a pre-publication checklist—reviewing the proposed ground and identifying risks.
- Platform analysis and a publishing agreement template—preparing terms to attach to the procurement documents.
- Support across the full sequence—from platform review and the OPZ to bidder questions and compliance with internal rules.
The practical order is platforms → agreement → OPZ → procurement. It helps protect the release schedule without relying on an exception that may not apply. If you are preparing to publish a game or another digital product through a Polish public entity, contact us.
