Must Union added value criteria be published in tender documents? CADA Art. 32

Summary Yes. Under the proposed Cloud and AI Development Act (CADA), contracting authorities must expressly set out Union added value criteria in the procurement documents or in the contract notice. Article 32(2)(c) establishes a strict transparency requirement: bidders must know the criteria in advance to prepare compliant tenders. These criteria cannot be applied retroactively or based on internal, unpublished guidelines. Furthermore, as proposed, these criteria must be linked to the subject matter, ancillary (not decisive) in the award decision, and cannot confer unrestricted freedom of choice to the authority.

Detail

The proposed Cloud and AI Development Act (CADA), COM(2026) 502 final, introduces a targeted framework for public procurement of cloud computing services and AI systems. Its goal is to strengthen the European digital supply chain while preserving the integrity of the single market. A cornerstone of this framework is the mandatory inclusion of "Union added value" criteria in public tenders.

However, the Act balances this strategic objective with rigorous procedural safeguards to prevent arbitrary decision-making and ensure fair competition. The most critical of these safeguards is the transparency obligation found in Article 32(2)(c).

The Mandatory Transparency of Article 32(2)(c)

Article 32(2) of the proposal sets out four cumulative conditions that non-price award criteria evaluating Union added value must satisfy. The third condition, Article 32(2)(c), states explicitly that the criteria must be:

"(c) expressly set out in the procurement documents or in the contract notice;"

This provision creates a non-negotiable transparency obligation. As proposed, contracting authorities cannot apply Union added value criteria retroactively, nor can they rely on internal strategic guidelines, unpublished policies, or "soft" preferences that were not disclosed to the market. The criteria must be visible to all potential bidders at the very outset of the procurement process.

This disclosure must occur in one of two places:

The Procurement Documents: The detailed technical and administrative specifications provided to bidders.
The Contract Notice: The initial public announcement of the tender, typically published in the Official Journal of the European Union or on the Tenders Electronic Daily (TED) portal.

The legal logic is straightforward: for a bidder to demonstrate that their solution contributes to the development of a European cloud and AI ecosystem, they must know exactly what the contracting authority considers to be such a contribution before they submit their bid. Without this prior knowledge, the evaluation process would lack legal certainty and violate the principles of equal treatment and transparency.

The Four Pillars of Valid Criteria

Transparency under Article 32(2)(c) is necessary but not sufficient. For Union added value criteria to be valid under the proposed CADA, they must simultaneously satisfy three other conditions listed in Article 32(2):

Linked to the Subject Matter (Art. 32(2)(a)): The criteria must be directly relevant to the specific cloud or AI services being procured. A public authority cannot demand contributions to frontier AI research if the tender is for basic data storage, as such a demand would not be linked to the subject matter of the contract.
No Unrestricted Freedom of Choice (Art. 32(2)(b)): The criteria must be objective and defined in a way that does not give the contracting authority unlimited discretion to pick a winner. The rules for evaluation must be clear and predictable.
Ancillary and Not Decisive (Art. 32(2)(d)): The Union added value criteria must play a secondary role. They cannot be the primary factor determining the winner. The award decision must remain grounded in technical quality, financial offer, and other core performance metrics directly connected to the service delivery.

What Constitutes "Union Added Value"?

While Article 32(2) sets the procedural rules, Article 32(3) defines the substantive scope of these criteria. As proposed, contracting authorities may evaluate the extent to which a tenderer:

Contributes to strengthening the digital technology supply chain in the Union (e.g., using software or hardware designed or manufactured in the EU).
Has integrated technologies developed in the Union, including research and development results from EU-funded programmes.
Delivers the service using critical computing, storage, and networking hardware components designed and/or manufactured in the Union.

Because these criteria involve complex technical and supply-chain assessments, the requirement in Article 32(2)(c) that they be "expressly set out" becomes even more critical. Bidders need precise definitions of what evidence is required. For instance, does "hardware designed in the Union" require a specific certification, a declaration of origin, or a supply chain audit? The tender documents must answer these questions explicitly.

What this means for you

For public-sector procurement officers and legal teams, the requirement under Article 32(2)(c) imposes a clear administrative duty during the tender preparation phase. Failure to comply could render the procurement process vulnerable to legal challenge on grounds of lack of transparency and unequal treatment.

1. Drafting Phase: Be Explicit, Not Vague

When drafting the procurement documents, you must explicitly define the Union added value criteria. Do not assume that a general reference to "European benefits," "sovereignty," or "local content" is sufficient.

Action: Specify exactly what you are looking for. Are you requiring hardware manufactured in the EU? Software developed by EU entities? Contributions to specific EU-funded R&D projects?
Action: Define the evidence required. Will you accept a self-declaration, or do you require third-party verification?

2. Publication Phase: Ensure Visibility

Ensure these criteria are included in the contract notice or the detailed procurement documents available to bidders.

Action: If the criteria are complex, include a summary in the contract notice and the full details in the procurement documents.
Action: Verify that the published text matches the evaluation matrix exactly. Any deviation between the published criteria and the evaluation method could be grounds for annulment.

3. Evaluation Phase: Stick to the Script

During the evaluation phase, you can only assess bidders against the criteria that were explicitly published.

Action: You cannot introduce new Union added value considerations after the submission deadline.
Action: You cannot apply "internal" preferences that were not disclosed. If a bidder did not know a specific criterion existed, they cannot be penalized for failing to meet it.

4. Weighting: Keep it Ancillary

Remember that Article 32(2)(d) mandates that these criteria are "ancillary and not decisive."

Action: Allocate a weighting that reflects this secondary nature. While the proposal does not prescribe a specific maximum percentage in the text of Article 32, the recitals and general procurement principles suggest a proportionate approach. The criteria should encourage European innovation without distorting the core economic evaluation of the tender.

Common misconceptions

Misconception 1: "We can prefer European providers based on internal strategy." Some authorities may believe they can apply a "European preference" based on internal strategic goals without explicitly stating these preferences in the tender. Article 32(2)(c) explicitly forbids this. The criteria must be "expressly set out" in the public-facing documents. Internal strategy documents are not a substitute for published procurement criteria.

Misconception 2: "Any mention of 'European' technology is enough." Vague language is legally risky. Because the criteria must be linked to the subject matter (Article 32(2)(a)) and not confer unrestricted freedom of choice (Article 32(2)(b)), generic statements like "we prefer European solutions" may not meet the legal threshold. Bidders need precise information on what constitutes "Union added value" for that specific tender (e.g., specific hardware components, software origins, or R&D contributions).

Misconception 3: "Union added value can be the primary award factor." Article 32(2)(d) mandates that these criteria are "ancillary and not decisive." Procurement officers must ensure that the weighting of these criteria does not dominate the overall evaluation. The primary award decision must remain based on the quality and cost of the cloud or AI service itself. Using Union added value as the decisive factor would violate the proposal.

Misconception 4: "We can update the criteria if the market changes." Once the procurement documents are published, the criteria are fixed. You cannot update the Union added value criteria mid-tender to reflect new market conditions or strategic shifts. Any change would require a new tender process to ensure equal treatment.

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