Summary Under the proposed Cloud and AI Development Act (CADA), contracting authorities may join a Commission-managed dynamic purchasing system (DPS) even after it has launched, provided they first accede to the framework agreement established in Article 38. As proposed in Article 39(5), the Commission must approve such requests within 10 working days, but only if the cumulative volume of all new requests does not exceed 50% of the initial estimated quantities of the envisaged purchases. Crucially, Article 39(6) restricts this mechanism exclusively to entities that accede to the Article 38 agreement after the DPS has been launched, ensuring the system remains open to new entrants without disrupting existing contracts.

Detail

The Cloud and AI Development Act (CADA), as proposed in COM(2026) 502 final, establishes a novel procurement framework where the European Commission acts as a central purchasing body for Member States and Union entities. A cornerstone of this framework is the use of dynamic purchasing systems (DPS) to procure cloud computing services, data centre services, software, and AI systems. Unlike traditional procurement procedures where participants are fixed at the outset, CADA introduces a specific derogation to allow "late-joining" authorities to access these pooled purchasing opportunities.

The Prerequisite: The Article 38 Accession Agreement

Before a contracting authority can request to join a live DPS, it must first become a "participating entity." This status is not automatic; it requires formal accession to the agreement laid down in Article 38 of the proposal.

Article 38 mandates that the Commission and at least two Member States enter into an agreement establishing the practical arrangements for procurement activities. This agreement creates a Steering Committee responsible for strategic oversight and defines the conditions for participation. Article 39(6) explicitly ties the right to join an ongoing DPS to this agreement, stating that the possibility to participate in a dynamic purchasing system is available only to participating entities that accede to the Article 38 agreement after the dynamic purchasing system has been launched.

This creates a two-step gatekeeping process:

  1. Accession: The authority must first join the overarching Article 38 framework.
  2. DPS Entry: Only after accession can the authority request to join a specific, active DPS.

This structure ensures that all latecomers are bound by the same strategic rules, fee structures, and governance mechanisms as the original participants, maintaining the integrity of the common procurement framework.

The Mechanism: Article 39(5) and the 50% Cap

Article 39(5) details the specific procedural rules for joining a live DPS. It grants participating entities the right to request participation "throughout the period of validity of a dynamic purchasing system," provided the request is made before a future invitation to tender is issued.

The approval of these requests is not unconditional. The proposal imposes a strict quantitative safeguard to protect the economic balance of the original tender:

  • The 50% Cumulative Cap: The Commission may approve a request only if the cumulative requests from all new participating entities do not exceed 50% of the initial estimated quantities of the envisaged purchases. This cap is calculated against the total volume originally forecasted when the DPS was launched. It prevents a scenario where latecomers could overwhelm the system, dilute the economies of scale, or alter the market dynamics intended for the initial participants.
  • The 10-Working-Day Deadline: To ensure agility, Article 39(5) mandates that the Commission must approve the request within 10 working days of receipt. This tight timeline is designed to allow new authorities to be onboarded quickly and be ready for the next round of tenders without bureaucratic delay.
  • Future-Only Participation: Upon approval, the entity is included in any future invitation to tender. The mechanism does not grant retroactive rights to past contracts or tenders that have already been concluded.

The Derogation from Standard Rules

This provision represents a significant departure from standard EU public procurement rules and the Financial Regulation (Regulation (EU, Euratom) 2024/2509). Typically, a DPS is a fully open procedure where all interested economic operators can apply, but the list of contracting authorities (the buyers) is usually fixed at the launch of the system.

CADA's Article 39(5) creates a specific exception to allow the buyer side of the equation to expand dynamically. This reflects the proposal's goal of maximizing the Union's collective purchasing power and ensuring that emerging or newly empowered public bodies can benefit from the negotiated terms of the Commission-led procurement without waiting for a new cycle to begin.

What this means for you

For public-sector procurement officers and legal counsels, the CADA DPS entry mechanism offers a strategic advantage but requires precise timing and adherence to the accession process.

1. Verify Article 38 Accession First

Your authority cannot simply "sign up" for a DPS. You must first ensure that your Member State (or your specific entity, if applicable) has acceded to the Article 38 agreement. If your national government has not yet signed the agreement, or if your specific authority has not been added as a participating entity under that agreement, you are ineligible to request DPS entry. The Steering Committee sets the conditions for this accession, which may include minimum spending thresholds or other objective criteria.

2. Monitor the 50% Threshold Closely

The 50% cap is a "use it or lose it" resource for the entire Union. It applies to the cumulative volume of all new requests. If the initial estimated quantity for a cloud service DPS was 1,000 units, only 500 units of "new" demand can be added by latecomers. If several large authorities join early in the DPS lifecycle, the remaining capacity for others may vanish quickly. Procurement officers should monitor the status of the DPS and the volume of existing commitments to assess if there is still room for new entrants.

3. Respect the 10-Day Window

The 10-working-day approval period is a hard deadline for the Commission, but it leaves little room for error on the applicant's side. You must submit a complete request well in advance of the next anticipated invitation to tender. If your request is delayed or incomplete, you risk missing the window for the next tender round, forcing you to wait for the next procurement cycle.

4. No Retroactive Benefits

Under Article 39(5), joining a DPS grants access only to future invitations to tender. You cannot claim a share of contracts already awarded to the original participants. This means that while you gain access to the framework, you must plan your procurement needs to align with the upcoming tender schedule.

Common misconceptions

Misconception 1: "Any public authority can join a live DPS at any time." Reality: Access is strictly limited. Article 39(6) restricts the mechanism to entities that accede to the Article 38 agreement after the DPS launch. Authorities that were part of the original setup but failed to join the DPS initially cannot use this specific derogation to enter later. They must wait for a new DPS launch or a different procurement procedure.

Misconception 2: "The 50% cap is a limit per individual authority." Reality: The cap in Article 39(5) applies to the cumulative total of all new requests across all participating entities. It is a system-wide limit, not a per-authority limit. If the cap is reached, no further requests can be approved, regardless of how small the individual request might be.

Misconception 3: "Joining a DPS exempts me from all national procurement laws." Reality: While Article 39(1) states that a participating entity is deemed to have fulfilled its obligations under Union public procurement law when acquiring services through the Commission, this does not exempt the authority from the requirement to be a valid contracting authority or from the internal national procedures required to accede to the Article 38 agreement. You must still comply with national rules regarding the authorization to join such international frameworks.

Misconception 4: "The Commission can approve a request even if the 50% cap is exceeded." Reality: The Commission is legally bound by the cap in Article 39(5). If the cumulative requests exceed 50% of the initial estimated quantities, the Commission cannot approve further requests under this derogation. This safeguard is absolute to protect the integrity of the original tender and the economic balance for the initial participants.

Related

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