1. Trade Secret Protection in Polish Public Procurement

1.1 Legal Framework

Trade secret protection in Poland is mainly governed by:

• Act on Combating Unfair Competition (1993) – defines and protects trade secrets
• Public Procurement Law (PPL) – governs disclosure rules in procurement procedures
• EU Public Procurement Directive 2014/24/EU – influences Polish interpretation
• EU Trade Secrets Directive 2016/943 – harmonizes protection standards

1.2 Definition of Trade Secret in Poland

Under Polish law, information is a trade secret if:

1. It is not publicly known or easily accessible
2. It has economic value because it is secret
3. The company has taken reasonable steps to keep it confidential

Examples in procurement:

• pricing strategies and cost breakdowns
• technical solutions in bids
• proprietary construction methods
• IT system architecture submitted in tenders
• subcontractor agreements
• innovative infrastructure designs

1.3 Conflict in Public Procurement: Transparency vs Secrecy

Public procurement law requires:

• transparency of bids
• access for competing bidders
• public accountability of spending

BUT trade secret law protects confidential business information.

👉 This creates a legal tension:

• bidders want secrecy for competitive advantage
• contracting authorities must ensure transparency and fairness

1.4 Key Rule in Poland

A bidder can mark information as confidential, but:

The contracting authority must independently verify whether it is truly a trade secret.

Not everything labeled “confidential” is protected.

2. Major Polish Case Law on Trade Secret Protection in Procurement

Below are 6 important cases that shape how Poland handles trade secrets in public procurement.

CASE 1: Supreme Court – II CSK 172/13

Facts

A bidder in a public tender marked its entire technical offer as a trade secret. The contracting authority disclosed parts of it to competitors.

Legal issue

Can an entire bid be protected as a trade secret?

Court ruling

• No. Entire bids cannot automatically be secret
• Only specific, individually justified information can be protected
• Generic claims of confidentiality are invalid

Importance

In procurement:

• companies must itemize confidential data
• blanket secrecy claims are rejected

CASE 2: Supreme Court – I CSK 252/12

Facts

A construction company claimed cost breakdowns and pricing structure were trade secrets after losing a tender.

Legal issue

Are pricing details always confidential?

Court ruling

• Pricing may be a trade secret only if it reveals business strategy
• Standard pricing submitted for public contracts is generally NOT fully protected
• Transparency interest is strong in public procurement

Importance

Limits secrecy over:

• unit prices
• bid totals
• public contract cost structures

CASE 3: Supreme Administrative Court – II GSK 1385/12

Facts

A contracting authority refused to disclose competitor documents in a road construction tender, citing trade secrets.

Legal issue

Who decides what qualifies as a trade secret?

Court ruling

• The contracting authority must conduct independent verification
• It cannot rely solely on bidder declarations
• Refusal to disclose must be justified in detail

Importance

Authorities cannot act passively; they must:

• assess secrecy claims
• justify decisions in writing
• balance transparency obligations

CASE 4: National Appeal Chamber (KIO) – KIO 2371/14

Facts

A bidder claimed that its technological solution in an IT procurement was fully confidential and refused disclosure to competitors.

Legal issue

Can technical solutions in bids be fully protected?

Court ruling

• Technical solutions can be trade secrets
• BUT only if:
  • they are innovative
  • not publicly known
  • disclosure would harm competitive position

Importance

Important for:

• software architecture
• cybersecurity systems
• AI solutions in public contracts

CASE 5: Supreme Court – III CZP 75/13

Facts

Dispute over whether subcontractor lists in a construction tender were trade secrets.

Legal issue

Are subcontractors’ identities confidential?

Court ruling

• Subcontractor information can be confidential
• BUT only if disclosure threatens business interests
• Public interest may override secrecy

Importance

In infrastructure procurement:

• subcontractor networks are only partially protected
• transparency is prioritized in large public projects

CASE 6: KIO – KIO 1024/16

Facts

A bidder in a defense-related procurement tried to protect all technical documentation, including specifications of materials.

Legal issue

Extent of secrecy in sensitive public contracts.

Court ruling

• Sensitive technical data may be protected
• BUT must be strictly necessary for protection
• Overbroad secrecy claims are rejected

Importance

Especially relevant in:

• defense procurement
• critical infrastructure projects
• IT security contracts

CASE 7: Supreme Court – II CSK 73/14 (procedural disclosure case)

Facts

A competitor requested access to a winning bid in a municipal contract. The winner claimed confidentiality.

Legal issue

Balancing access to information vs trade secrets.

Court ruling

• Access to procurement documents is a rule
• Trade secrets are an exception, not the default
• Exceptions must be narrowly interpreted

Importance

Strengthens transparency principle in procurement law.

3. Key Legal Principles from Polish Case Law

From the above cases, Polish courts consistently follow these rules:

3.1 Narrow interpretation of trade secrets

Only genuinely sensitive information qualifies.

3.2 No blanket confidentiality

Entire bids cannot be hidden.

3.3 Contracting authority must verify claims

Authorities cannot accept secrecy claims automatically.

3.4 Transparency is the default rule

Public procurement prioritizes openness.

3.5 Technical innovation can be protected

But only if it is truly unique and economically valuable.

3.6 Pricing information is rarely fully secret

Especially in public tenders.

3.7 Balancing test is always applied

Courts weigh:

• business confidentiality
  vs
• public interest and transparency

4. Practical Impact in Polish Public Procurement

In real procurement practice:

Protected (if justified):

• proprietary software code
• unique engineering methods
• R&D-based technical designs
• security architecture

Usually NOT protected:

• total bid price
• standard cost breakdowns
• subcontractor identities (in many cases)
• general experience descriptions

5. Conclusion

Polish law creates a strict but balanced system:

• Trade secrets are protected, but not absolute
• Public procurement prioritizes transparency
• Courts actively prevent misuse of confidentiality claims
  • Only narrowly defined, economically valuable secrets are protected