Summary Yes, contracting authorities may include award criteria beyond the specific "Union added value" requirements set out in Article 32 of the proposed Cloud and AI Development Act (CADA). The regulation explicitly states in the chapeau of Article 32(3) that its provisions are "without affecting contracting authorities' discretion to apply additional criteria." This confirms that Union added value acts as a mandatory floor for evaluating European supply chain contributions, not a ceiling that restricts other quality or technical assessments. Authorities must include these specific criteria but retain full freedom to design a holistic Most Economically Advantageous Tender (MEAT) evaluation, provided all criteria remain linked to the subject matter and comply with general EU public procurement law.

Detail

Under the proposed Cloud and AI Development Act (CADA), public procurement for innovative cloud computing services and AI systems must include non-price award criteria that evaluate a tenderer's contribution to the European cloud and AI ecosystem. This mechanism is formally known as "Union added value." However, a critical question for procurement officers is whether this requirement replaces or limits the broader range of technical and qualitative criteria they can use to select the most economically advantageous tender (MEAT).

The answer is clearly no. Article 32 of the CADA proposal is designed to complement, not replace, existing procurement evaluation frameworks.

The Legal Basis for Additional Criteria

The key provision governing this flexibility is found in the chapeau of Article 32(3). The text states:

"Without affecting contracting authorities' discretion to apply additional criteria, the non-price award criteria referred to in paragraph 1 shall enable contracting authorities to evaluate the extent to which:..."

This phrase "without affecting contracting authorities' discretion to apply additional criteria" is legally significant. It confirms that the specific criteria listed in Article 32(3)β€”such as the use of software or hardware designed or manufactured in the Union, or the integration of technologies developed in the Unionβ€”are mandatory minimums that must be included in the evaluation methodology. They are not an exhaustive list of all possible quality criteria.

Contracting authorities retain full discretion to include other relevant non-price criteria, such as:

  • Technical performance and functionality.
  • Security and resilience features not covered by the sovereignty framework.
  • Environmental sustainability metrics beyond those tied to the Union supply chain.
  • User experience and interoperability.
  • After-sales support and maintenance capabilities.

How This Fits into MEAT Evaluation

In EU public procurement, the "Most Economically Advantageous Tender" (MEAT) principle allows authorities to award contracts based on the best price-quality ratio. Quality is measured through criteria that are linked to the subject matter of the contract.

Article 32 of CADA introduces a specific subset of quality criteria focused on strategic autonomy and supply chain resilience. Crucially, Article 32(2)(d) mandates that these non-price award criteria must be "ancillary and not decisive in the award of the contract." This means that while Union added value must be evaluated, it cannot be the sole determinant of the award if other technical or financial criteria are more directly connected to the performance requirements.

However, because authorities can apply additional criteria, they can structure their MEAT evaluation to give appropriate weight to both the Union added value and other technical factors. For example, a tender might allocate:

  • 40 points for technical performance and security.
  • 20 points for Union added value (as permitted under the weighting guidelines in Recital 67, which suggests a maximum of 15 out of 120 points, though this is guidance, not a strict cap in the article itself).
  • 40 points for price.

The inclusion of additional criteria allows authorities to ensure that while they are boosting the European ecosystem, they are still procuring high-quality, fit-for-purpose solutions. The Union added value criteria serve as a specific lens through which the European supply chain contribution is viewed, but they do not obscure the broader technical picture.

Constraints on Additional Criteria

While authorities have discretion, this discretion is not unlimited. Any additional criteria must still comply with the general principles of EU public procurement law, specifically Directive 2014/24/EU. This means additional criteria must:

  1. Be linked to the subject matter of the contract.
  2. Not confer unrestricted freedom of choice on the contracting authority.
  3. Be expressly set out in the procurement documents or contract notice.
  4. Be non-discriminatory and proportionate.

Furthermore, Article 32(2) lists specific conditions for the non-price award criteria under Article 32, ensuring they are objective and transparent. While these specific conditions apply to the Union added value criteria, the spirit of transparency and non-discrimination applies to all additional criteria used in the procurement process. The "ancillary and not decisive" requirement in Article 32(2)(d) specifically targets the Union added value criteria, ensuring they do not override the core technical and financial assessment, but the broader discretion to add criteria remains intact.

What this means for you

For public-sector procurement officers, this provision offers strategic flexibility. You are not forced to choose between complying with CADA's sovereignty goals and procuring the best technical solution. Instead, you can design a holistic evaluation framework.

  1. Mandatory Inclusion: Ensure your tender documents include the Union added value criteria as described in Article 32(3). You must evaluate how tenderers contribute to strengthening the digital technology supply chain in the Union, integrate Union-developed technologies, and deliver services using critical hardware components designed or manufactured in the Union.
  2. Discretionary Addition: Feel free to add other technical, security, or sustainability criteria that are relevant to your specific needs. For instance, if you are procuring an AI system for healthcare, you might add criteria for data privacy compliance beyond the baseline, or specific integration capabilities with existing hospital IT systems.
  3. Weighting Strategy: Remember that Union added value criteria must be "ancillary and not decisive." Use your additional criteria to ensure that the primary focus remains on the quality and performance of the service. You can use the additional criteria to balance the award if a tenderer scores high on Union added value but low on technical performance, or vice versa.
  4. Documentation: Clearly document in your procurement strategy how the additional criteria are linked to the subject matter and how they interact with the Union added value criteria. This transparency will help defend your award decision against potential challenges.

Common misconceptions

  • Misconception 1: Article 32 replaces all other quality criteria.
    • Reality: Article 32 only mandates the inclusion of specific Union added value criteria. It explicitly preserves the authority's discretion to apply additional criteria. It is a supplement to, not a substitute for, standard technical evaluation.
  • Misconception 2: Union added value must be the most heavily weighted criterion.
    • Reality: Article 32(2)(d) states that Union added value criteria must be "ancillary and not decisive." This means they cannot outweigh the core technical and financial criteria that determine the overall quality and price of the tender.
  • Misconception 3: Authorities can ignore Union added value if they have other strong criteria.
    • Reality: The inclusion of Union added value criteria is mandatory for innovative cloud and AI procurements under CADA. Authorities cannot opt out of evaluating these criteria, even if they have other robust technical criteria in place.
  • Misconception 4: Additional criteria can be used to discriminate against non-EU providers.
    • Reality: While Union added value criteria favor European supply chains, any additional criteria must still comply with non-discrimination principles under EU law. They must be linked to the subject matter and cannot be designed solely to exclude foreign competitors without a legitimate technical or performance justification.

Related

This is general information about a draft EU regulation, not legal advice.