Where Does the Proposed EU AI Act Place Procurement?

By: Albert Sánchez-Graells (How to Crack a Nut)

Thinking about some of the issues raised in the earlier post ‘Can the robot procure for you?,’ I have now taken a close look at the European Commission’s Proposal for an Artificial Intelligence Act (AIA) to see how it approaches the use of AI in procurement procedures. It may (not) come as a surprise that the AI Act takes an extremely light-touch approach to the regulation of AI uses in procurement and simply subjects them to (yet to be developed) voluntary codes of conduct. I will detail my analysis of why this is the case in this post, as well as some reasons why I do not find it satisfactory.

Before getting to the details, it is worth stressing that this is reflective of a broader feature of the AIA: its heavy private sector orientation. When it comes to AI uses by the public sector, other than prohibiting some massive surveillance by the State (both for law enforcement and to generate a system of social scoring) and classifying as high-risk the most obvious AI uses by the law enforcement and judicial authorities (all of which are important, of course), the AIA remains silent on the use of AI in most administrative procedures, with the only exception of those concerning social benefits.

This approach could be generally justified by the limits to EU competence and, in particular, those derived from the principle of administrative self-organisation of the Member States. However, given the very broad approach taken by the Commission on the interpretation and use of Article 114 TFEU (which is the legal basis for the AIA, more below), this is not entirely consistent. It could rather be that the specific uses of AI by the public sector covered in the proposal reflect the increasingly well-known problematic uses of (biased) AI solutions in narrow aspects of public sector activity, rather than a broader reflection on the (still unknown, or still unimplemented) uses that could be problematic.

While the AIA is ‘future-proofed’ by including criteria for the inclusion of further use cases in its ‘high-risk’ category (which determines the bulk of compliance obligations), it is difficult to see how those criteria are suited to a significant expansion of the regulatory constraints to AI uses by the public sector, including in procurement. Therefore, as a broader point, I submit that the proposed AIA needs some revision to make it more suited to the potential deployment of AI by the public sector. To reflect on that, I am co-organising a webinar on ’Digitalization and AI decision-making in administrative law proceedings’, which will take place on 15 Nov 2021, 1pm UK (save the date, registration and more details here). All welcome…

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