Summary Under the proposed Cloud and AI Development Act (CADA), contracting authorities may assign a maximum of 15 out of 120 points to Union added value criteria in public procurement for cloud computing services and AI systems. This criterion must remain "ancillary and not decisive," ensuring that technical and financial performance requirements retain primacy. The 15/120 figure is an illustrative guideline for proportionality, not a rigid mathematical cap for all scoring systems, but exceeding it significantly increases legal risk.

Detail

Article 32 of the proposed Cloud and AI Development Act (CADA), COM(2026) 502 final, introduces specific obligations for contracting authorities when procuring innovative cloud computing services and AI systems. A central mechanism is the inclusion of non-price award criteria that evaluate a tenderer's contribution to the development of a European cloud and AI ecosystem. While these criteria aim to strengthen the Union's digital supply chain and technological sovereignty, their application is strictly bounded to prevent distortion of competition and ensure legal compliance with international trade commitments.

The 15/120 Point Guidance

Recital 67 of the CADA proposal provides explicit guidance on how much weight these Union added value criteria can carry within the overall evaluation methodology. It states that contracting authorities "could consider a maximum weighting of 15 out of 120 points to be allocated to European added value."

This fractional representation (15/120) translates to 12.5% of the total score. Crucially, the recital uses the phrase "could consider," indicating that this is an illustrative example of what constitutes a proportionate weighting, rather than a rigid statutory formula that must be applied as a fixed percentage to every tender. The regulation does not mandate a universal "12.5% cap" in the text of the articles themselves; instead, it establishes a qualitative principle. However, the recital serves as the primary interpretative tool for determining what "ancillary" means in practice. Deviating significantly from this 12.5% benchmark without strong justification would likely be viewed as failing the proportionality test.

The Qualitative Constraint: "Ancillary and Not Decisive"

Beyond the numerical guidance, Article 32(2)(d) imposes a binding qualitative constraint: non-price award criteria relating to Union added value must be "ancillary and not decisive in the award of the contract."

  • Ancillary: The criterion serves as a secondary factor. It can break ties or provide a slight preference between otherwise equal bids, but it cannot drive the primary selection logic.
  • Not Decisive: The outcome of the tender cannot be determined solely or primarily by this criterion. A tenderer with superior technical and financial credentials cannot be disqualified or significantly penalized merely because their Union added value score is lower than a competitor's.

This dual constraint ensures that the procurement process remains competitive and focused on value for money, while still allowing public buyers to signal market direction toward European technological sovereignty. If a tender were awarded primarily based on Union added value, it would likely constitute a violation of the proposed regulation.

Contracting Authority Discretion

Article 32(3) preserves the discretion of contracting authorities. The chapeau of Article 32(3) 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..." the tenderer contributes to the European ecosystem.

This means that while the 15/120 point guidance is a strong recommendation to ensure consistency and proportionality across the Union, authorities retain flexibility in how they structure the evaluation. They can choose to allocate fewer points, or structure the scoring differently, provided they respect the "ancillary and not decisive" principle. The criteria must still be:

  • Linked to the subject matter of the contract (Article 32(2)(a)).
  • Not conferring unrestricted freedom of choice (Article 32(2)(b)).
  • Expressly set out in the procurement documents (Article 32(2)(c)).

Integration into the MEAT Framework

In practice, these Union added value criteria are integrated into the Most Economically Advantageous Tender (MEAT) evaluation framework. Public procurement typically balances price and quality. Under CADA, the "quality" portion of the MEAT assessment can include a specific sub-score for Union added value.

Because the 15/120 figure is illustrative of proportionality (12.5% of the total), authorities must apply this logic to their specific scoring scales.

Practical Weighting Examples:

  1. Standard 120-Point Scale:

    • Total Score: 120 points.
    • Union Added Value: Max 15 points (12.5%).
    • Remaining: 105 points for Price, Technical Merit, and other quality criteria.
    • Status: This aligns perfectly with the Recital 67 example.

  2. Standard 100-Point Scale:

    • Total Score: 100 points.
    • Union Added Value: Max 12.5 points (12.5%).
    • Note: While 12.5 points is the mathematical equivalent, authorities might round to 12 or 13 points. Allocating significantly more (e.g., 20 points) would likely violate the "ancillary" requirement unless justified by exceptional circumstances.

  3. Split Price/Quality Scale (e.g., 60/40):

    • Total Score: 100 points (60 Price, 40 Quality).
    • Union Added Value: This must be a sub-criterion within the Quality section.
    • Calculation: 12.5% of the total score (100) = 12.5 points.
    • Risk: If the Quality section is only 40 points, allocating 12.5 points to Union added value means it represents 31.25% of the Quality score. While this is mathematically 12.5% of the total, it may be perceived as "decisive" within the quality dimension. A safer interpretation, ensuring the criterion remains clearly secondary even within the quality block, might be to cap it at 5 points (12.5% of the quality block) or strictly adhere to the 12.5% of total (12.5 points) while ensuring the technical merit sub-criteria remain dominant.
    • Correction on previous error: The regulation does not mandate a "5-point cap" for 100-point systems. The 15/120 example suggests 12.5% of the total is the target. However, if the Quality block is small, a high Union added value score within that block could distort the quality assessment. The safest approach is to ensure the Union added value score never exceeds 12.5% of the total score, and that technical merit remains the largest component of the quality score.

What This Means for You

For public-sector procurement officers, implementing Article 32 requires careful structuring of tender documents and evaluation matrices.

  1. Adhere to the 12.5% Benchmark: Explicitly define the maximum points available for Union added value in your tender notice. Aligning with the 15/120 (12.5%) guidance is the safest path to compliance.
  2. Define Clear Metrics: Use the criteria listed in Article 32(3) to build your scoring rubric. These include:
    • Contribution to strengthening the digital technology supply chain in the Union (e.g., use of EU-designed hardware/software).
    • Integration of technologies developed in the Union (e.g., R&D results from Union-funded programs).
    • Innovation that strengthens supply security.
    • Delivery through critical hardware components designed or manufactured in the Union.
  3. Maintain Proportionality: Ensure that the weighting reflects the actual importance of these factors to the contract's performance. Do not allow Union added value to outweigh technical performance or price. If a tender is awarded primarily based on Union added value, it would likely be a violation of the proposed regulation.
  4. Document Your Approach: Clearly articulate in the procurement documents why these criteria are included and how they are weighted, demonstrating that they are ancillary and not decisive. This documentation is crucial for defending against potential challenges regarding WTO GPA compliance or national procurement law.

Common Misconceptions

  • "Union added value can be the primary award criterion." Incorrect. Article 32(2)(d) explicitly states it must be "ancillary and not decisive." Technical and financial criteria must remain primary.

  • "The 15/120 limit is a strict legal maximum for all scales." While Recital 67 uses the word "could," it serves as a strong interpretative guideline for proportionality. The legal maximum is defined by the principle of being "ancillary and not decisive." However, exceeding the 12.5% benchmark significantly increases the risk of legal challenge and is generally considered non-compliant with the spirit of the proposal. It is best practice to adhere to this ceiling.

  • "All cloud procurements must use this criterion." Article 32 applies specifically to "innovative cloud computing services and AI systems." Standard, non-innovative procurements may not fall under this specific obligation, though authorities may still consider broader EU procurement directives.

  • "It discriminates against non-EU providers." The criterion is designed to be open to all providers who can demonstrate contribution to the EU ecosystem, including through partnerships, local R&D, or manufacturing in the Union. It is not a blanket exclusion of non-EU entities but a preference for EU-value-addition.

Related

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