On 11 April 2024, AG Campos Sánchez-Bordona delivered his Opinion in NFŠ (C-28/23, EU:C:2024:306). The NFŠ Opinion is very interesting in three respects. First, in addressing some aspects of the definition of public works contracts that keep coming up in litigation in relation to relatively complex real estate transactions. Second, in addressing the effects of a State aid decision on the assessment of compliance with procurement law of the legal structure used to implement the aid package. Third, in addressing some limits on the ‘strategic’ use of remedies by contracting authorities that have ..read more

The UK’s Cabinet Office has published procurement policy note 2/24 on ‘Improving Transparency of AI use in Procurement’ (the ‘AI PPN’) because ‘AI systems, tools and products are part of a rapidly growing and evolving market, and as such, there may be increased risks associated with their adoption … [and therefore] it is essential to take steps to identify and manage associated risks and opportunities, as part of the Government’s commercial activities’. The crucial risk the AI PPN seems to be concerned with relates to generative AI ‘hallucinations’, as it includes background information highl ..read more

** This comment was first published as an Op-Ed for EU Law Live on 8 December 2022 (see formatted version). I am reposting it here in case of broader interest. ** On the face of it, in Infraestruturas de Portugal and Futrifer Indústrias Ferroviárias (C-66/22), the Court of Justice had to assess whether Member States can limit the exclusion of competition law violators from participation in tenders for public contracts to cases where the national competition authority has previously imposed such debarment as an ancillary penalty. While this is a plausible transposition approach that seeks to c ..read more

In the Opinion in Kolin Inşaat Turizm Sanayi ve Ticaret (C-652/22, EU:C:2024:212, hereafter ‘Kolin’), Advocate General Collins has argued that only economic operators established in countries party to international agreements on public contracts that bind the EU may rely on the provisions of Directive 2014/25/EU. This would imply that economic operators established in other countries are not entitled to participate in a public contract award procedure governed by Directive 2014/25/EU and, consequently, are unable to rely on the provisions of that Directive before Member State courts. In my vi ..read more

The UK Government’s Department for Science, Innovation and Technology (DSIT) has recently published its Initial Guidance for Regulators on Implementing the UK’s AI Regulatory Principles (Feb 2024) (the ‘AI guidance’). This follows from the Government’s response to the public consultation on its ‘pro-innovation approach’ to AI regulation (see here). The AI guidance is meant to support regulators develop tailored guidance for the implementation of the five principles underpinning the pro-innovation approach to AI regulation, that is: (i) Safety, security & robustness; (ii) Appropriate trans ..read more

The UK Government has recently published its official response (the ‘response’) to the public consultation of March 2023 on its ‘pro-innovation approach’ to AI regulation (for an initial discussion, see here). The response shows very little movement from the original approach and proposals and, despite claiming that significant developments have already taken place, it mainly provides a governmental self-congratulatory narrative and limited high-level details of a regulatory architecture still very much ‘under construction’. The publication of the response was coupled with that of Initial Gui ..read more

Free webinar: 22 March 2024 2pm UK / 3pm CET / 4pm EET. Registration here. The role of competition in public procurement regulation continues to be debated. While it is generally accepted that the proper functioning of procurement markets requires some level of competition – and the European Court of Auditors has recently pointed out that current levels of competition for public contracts in the EU are not satisfactory – the 'legal ranking' and normative weight of competition concerns are much less settled. This has been evidenced in a recent wave of academic discussion on whether there is a ..read more

The National Health Service (NHS) has been running a centralised model for health care procurement in England for a few years now. The current system resulted from a redesign of the NHS supply chain that has been operational since 2019 [for details, see A Sanchez-Graells, ‘Centralisation of procurement and supply chain management in the English NHS: some governance and compliance challenges’ (2019) 70(1) NILQ 53-75.] Given that the main driver for the implementation and redesign of the system was to obtain efficiencies (aka savings) through the exercise of the NHS’ buying power, both the UK’s ..read more

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 ..read more

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 as ..read more