a POC inside a public tender: what procurement law allows

A public buyer can test your product before it buys, as long as every bidder gets the same test under rules published in advance. Before the procedure, the law gives you a market consultation and anything you offer to all comers. Inside the procedure, the test becomes evidence: a sample or demonstration the authority requires from every bidder and scores against fixed criteria. A private POC that shapes the specification for one product sits outside both, and it puts your bid at risk.

What follows summarises Directive 2014/24/EU and the Polish Public Procurement Law (Prawo zamówień publicznych, Pzp), consolidated text Dz.U. 2026 poz. 793, as of October 2026. It is not legal advice, and counsel should read the documents of any tender before you rely on it.

where a test can sit in a public procurement

In a private enterprise deal the POC is a negotiation between you and the buyer. A public procurement has three legitimate places for testing, each with its own rules.

Where testing can sit across a public procurement

1. before the procedureopen access for anyonePublic documentation, a trial programme on the same terms for every buyer and bidder.
2. before the procedurepreliminary market consultationThe authority announces it, several vendors take part, and what it learns may be shared with all bidders.
3. before the procedurea private POC that writes the specificationOne product tested, its parameters copied into the requirements. This is where bids get challenged.
4. inside the proceduresamples or a demonstration as evidenceRequired from every bidder in the tender documents, run to a published scenario, scored on fixed criteria.
5. after awardacceptance testsWhere the contract provides for them, they check the delivered product against the offer.

Thresholds decide which rules apply. As of October 2026, Article 2(1)(1) of the Pzp applies the act to classic contracts by public authorities from PLN 170,000, the level set by the amending act of 25 July 2025 and in force since 1 January 2026. The Polish tender guide has the 2026 EU thresholds in euro and złoty.

what the directive requires of member states

Directive 2014/24/EU binds member states, which transpose it into national law. These articles matter for testing.

• Article 40 lets contracting authorities run market consultations before a procedure and seek or accept advice from market participants, provided the advice does not distort competition or breach non-discrimination and transparency.
• Article 41 says that if a bidder advised the authority, the authority must keep competition undistorted, including by sharing the relevant information with other bidders and fixing adequate time limits. Exclusion is a last resort, and the bidder first gets the chance to show its involvement did not distort competition.
• Article 42 requires specifications that give equal access to economic operators, and allows them to be written as performance or functional requirements. A make or trade mark may be named only exceptionally, where a precise description is not possible, followed by “or equivalent”.
• Article 44 lets authorities require test reports or certificates as proof that a product meets the specification or the award criteria, and to accept other appropriate means, such as the manufacturer’s technical dossier, when a bidder could not get them in time. Annex XII Part II(k) lists samples, descriptions or photographs of products to be supplied among the means of proving technical ability.
• Article 67 bases award on the most economically advantageous tender, which may include quality criteria such as technical merit and functional characteristics. Criteria must not give the authority unrestricted freedom of choice, and must allow the information in tenders to be effectively verified.
• Articles 26(4), 30 and 31 allow competitive dialogue where readily available solutions need adaptation or include innovative solutions, and an innovation partnership where the need cannot be met by products already on the market.

Article 18(1) sits over all of it: equal treatment, transparency, proportionality, and no procurement designed to unduly favour certain operators.

how the Polish act implements the same tools

The Pzp follows the directive closely. As of October 2026:

Tool	Directive 2014/24/EU	Pzp article	What the Polish text says
Market consultation	Art. 40	Art. 84	The authority may consult before the procedure, announces it on its website, and mentions it in the contract notice
Prior involvement	Art. 41	Art. 85	Share relevant information with other bidders, set an adequate time limit, exclude only as a last resort
Specification	Art. 42	Art. 99 and 101	No description that could hinder fair competition, trade marks only with “lub równoważny” and stated equivalence criteria, performance or functional requirements allowed
Evidence about the product	Art. 44	Art. 104 to 107	Certificates, test reports and other przedmiotowe środki dowodowe, submitted with the offer
Award criteria	Art. 67	Art. 240 to 242, 246	Clear criteria linked to the subject, quality may include technical parameters and functionality
Competitive dialogue	Art. 30	Art. 169 and 170	Dialogue on the solutions bidders propose, then offers
Innovation partnership	Art. 31	Art. 189 to 191	For an innovative product not available on the market

Three Polish details change how you plan.

First, Article 246 bars public authorities covered by Article 4 points 1 and 2 (public finance sector units and state organisational units without legal personality) from using price as the only criterion or with a weight above 60%, unless the specification sets quality requirements for at least the main elements of the purchase. That leaves room for a scored functional test.

Second, Article 107(3) removes the second chance. An authority may normally ask for missing evidence to be supplemented, if the documents allow it, but not evidence of features scored under the award criteria. A demonstration used for points is a single attempt.

Third, below EU thresholds Article 266 applies the general rules of the act, including consultations, the specification rules and product evidence, but excludes articles 132 to 188. Competitive dialogue is therefore an above-threshold tool in Poland. The basic procedure in Article 275 allows negotiations on offers, if the authority provided for them.

what you can do before publication, and what you must not

The line runs between what you offer the whole market and what you arrange for one buyer around one product. The Pzp states the consequence: Article 109(1)(9) lets an authority exclude a bidder that unlawfully tried to influence it or obtained confidential information giving it an advantage, if the tender documents provide for that ground.

before publication

open to the market, or through a consultation

• Answer a market consultation under Article 84, in writing
• Publish product documentation, licensing and architecture openly
• Offer trial access on the same terms to any authority or bidder
• Propose functional requirements a buyer can test

inside the procedure

the same test for every bidder

• Samples or a demonstration required in the tender documents
• A published scenario and scoring rule
• Evidence submitted with the offer under Article 107
• Clarifications published without naming who asked (Articles 135 and 284)

In a consultation, describe outcomes and tests in functional terms, as Article 101(1)(1) of the Pzp allows a specification to be written. “Records privileged sessions and lets an auditor search them by user and command” can be met by several products. Your console’s menu names cannot. Expect what you submit to reach your competitors under Article 85, and write it so that is fine.

What you must not do: draft requirements from your own datasheet, supply a scoring scheme only your product passes, or run a private evaluation with the authority’s team that becomes the specification. If a public buyer asks you for a free POC before the tender, a defensible answer is to offer the same access to anyone and suggest a consultation where several vendors demonstrate. Put the answer in writing. Your procurement contacts are likely to prefer that too, since they carry the risk of an appeal.

running a demonstration that can be scored

You and the authority both want a test that survives an appeal. Article 106 of the Pzp lets the authority require evidence beyond certificates where necessary, proportionate and linked to the subject, without restricting fair competition. Article 240(2) requires criteria that leave no unlimited discretion and allow offers to be compared. A scenario-based demonstration can meet both if the documents settle the following in advance.

1. The legal basis and the form. Which evidence the demonstration is, under Article 106, and how it relates to Article 107(1), which says evidence is submitted with the offer. The act does not mention software demonstrations by name, so the tender documents should say exactly what the demonstration is and when it happens. This is the point counsel should check first.
2. The scenario. Numbered steps, each tied to a requirement or a scored criterion, in an environment the authority defines for every bidder.
3. The scoring. Pass or fail per step for mandatory requirements, a fixed number of points per step for scored features, and nothing based on overall impression.
4. The conditions. Time limit, who operates the product, who attends, whether it is recorded, and what minutes record.
5. The consequence. What failing a mandatory step means (under Article 226(1)(5), an offer whose content does not match the conditions is rejected) and that scored evidence cannot be supplemented under Article 107(3).

This is close to the structure of a good security demo, except that the buyer writes the script and every vendor runs it.

when the product needs adapting or developing

If off-the-shelf products do not meet the need, testing moves into the procedure. Competitive dialogue (Articles 169 and 170 of the Pzp, above EU thresholds) lets the authority discuss proposed solutions with selected bidders before final offers. The innovation partnership (Articles 189 to 191) covers development and later purchase, provided results meet performance levels and maximum costs agreed with the partner. Both rest on the conditions in Articles 26(4) and 31 of the directive. If your product needs adaptation, say so in the consultation. A vendor security review still runs alongside, whatever the procedure.

the next tender in your pipeline

Pick the next public opportunity you expect in your category and check one thing this week: does the authority have a published consultation, and have you answered it in functional terms that a competitor could also meet?