Public Procurement of Artificial Intelligence: recent developments and remaining challenges in EU law

Now that the (more than likely) final of the EU AI Act is available, and building on the analysis of my now officially published new monograph Digital Technologies and Public Procurement (OUP 2024), I have put together my assessment of its impact for the procurement of AI under EU law and uploaded on SSRN the new paper: ‘Public Procurement of Artificial Intelligence: recent developments and remaining challenges in EU law’. The abstract is as follows:

EU Member States are increasingly experimenting with Artificial Intelligence (AI), but the acquisition and deployment of AI by the public sector is currently largely unregulated. This puts public procurement in the awkward position of a regulatory gatekeeper—a role it cannot effectively carry out. This article provides an overview of recent EU developments on the public procurement of AI. It reflects on the narrow scope of application and questionable effectiveness of tools linked to the EU AI Act, such as technical standards or model contractual clauses, and highlights broader challenges in the use of procurement law and practice to regulate the adoption and use of ‘trustworthy’ AI by the public sector. The paper stresses the need for an alternative regulatory approach.

The paper can be freely downloaded: A Sanchez-Graells, ‘Public Procurement of Artificial Intelligence: recent developments and remaining challenges in EU law’ (January 25, 2024). To be published in LTZ (Legal Tech Journal) 2/2024: https://ssrn.com/abstract=4706400.

As this will be an area of contention and continuous developments, comments most welcome!

Source: h

Implementation Challenges for the Procurement Act 2023

I have put together a consolidated overview of the primary challenges for the implementation of the Procurement Act 2023, to be included as a country report in a forthcoming issue of the European Procurement & Public Private Partnership Law Review.

It brings together developments discussed in the blog over the last year or so, including the transparency ambition, the innovation ambition, and the training offer linked to the Transforming Public Procurement project.

In case of interest, it can be downloaded from SSRN: https://ssrn.com/abstract=4692660.

It contains nothing new, though, so assiduous readers may want to skip this one!

Resh(AI)ping Good Administration: Addressing the mass effects of public sector digitalisation

Happy New Year! I hope 2024 is off to a good start for you.

My last project of last year (finished on the buzzer…) was a paper expanding the ideas first floated in the DigiCon blog post ‘Resh(AI)ping good administration: beyond systemic risks vs individual rights?’, which sparked interesting discussion at the DigiCon III conference last fall.

With a slightly different (and hopefully clearer) title, the paper is now under peer-review (and so, as always, comments welcome ahead of a final revision!).

Titled ‘Resh(AI)ping Good Administration: Addressing the mass effects of public sector digitalisation’, the paper focuses on what I think is the most distinctive feature of public sector digitalisation and the prime challenge to traditional good administration guarantees: mass effects. Its abstract is as follows:

Public sector digitalisation is transforming public governance at an accelerating rate. Digitalisation is outpacing the evolution of the legal framework. Despite several strands of international efforts to adjust good administration guarantees to new modes of digital public governance, progress has so far been slow and tepid. The increasing automation of decision-making processes puts significant pressure on traditional good administration guarantees, jeopardises individual due process rights, and risks eroding public trust. Automated decision-making has so far attracted the bulk of scholarly attention, especially in the European context. However, most analyses seek to reconcile existing duties towards individuals under the right to good administration with the challenges arising from digitalisation. Taking a critical and technology-centred doctrinal approach to developments under the law of the European Union and the Council of Europe, this paper goes beyond current debates to challenge the sufficiency of existing good administration duties. By stressing the mass effects that can derive from automated decision-making by the public sector, the paper advances the need to adapt good administration guarantees to a collective dimension through an extension and a broadening of the public sector’s good administration duties: that is, through an extended ex ante control of organisational risk-taking, and a broader ex post duty of automated redress. These legal modifications should be urgently implemented.

Sanchez-Graells, Albert, ‘Resh(AI)ping Good Administration: Addressing the mass effects of public sector digitalisation’ (December 19, 2023). Available at SSRN: https://ssrn.com/abstract=4669589.