New developments in the field of AI: Many opportunities arise in public procurement law

However, there is no uniform assessment of the speed at which the development will progress and the extent to which it will take place. In addition to technical progress, much depends on politics and whether it will act as a brake or a driver. At the European level, all eyes are therefore currently on the planned AI regulation.

In public procurement law, both politicians and legal practitioners would be well advised not to close their minds to new developments: AI, like any new technology, comes with opportunities and risks. In our view, however, the opportunities outweigh the risks, especially since the risks can be countered appropriately.

• As a starting point, it should be noted that the extensive digitization of procurement procedures has successfully laid the foundation for AI applications in procurement law (Busche, Einführung in die Rechtsfragen der künstlichen Intelligenz, in: JA 2023, S. 441 (441)). This does not mean that the digitization of the procurement process is complete. In the area of security and defense, but also in the area of legal remedies, there is often a hard break. Nonetheless, e-procurement is now the norm and the trend toward public e-procurement is progressing (Klipstein, Die Zukunft der E-Vergabe, in: cosinex blog, 12. Febr. 2019).

   

• New developments in the field of AI, such as the now omnipresent ChatGPT, are often reflexively reacted to - especially in the context of jurisprudence - with the question of liability: Can, for example, ChatGPT be held liable for erroneous legal information? In our opinion, this is a justified and important discussion. Nevertheless, this narrowing of the question does not do justice to the future (e.g., ChatGPT is not yet that far along) application possibilities of AI. After all, in addition to autonomous automated application of the law, AI can serve to support decision-making - in which case the actual decision will continue to be made by the human processor. This can happen, for example, where a large number of documents are to be automatically checked for a certain property.

   

• This kind of decision support can relieve the burden on users involved in public procurement law - and allow them to concentrate on elements of the procurement process where the use of AI is still a long way off, such as market research, the creation of specifications, evaluation matrices, the selection of bids, and the handling of complex legal issues.

   

• As in many other areas of law, repetitive elements can be found in the application of public procurement law - for which an AI understood as a support aid is predestined.

   

• In our view, secrecy interests and data protection also do not per se stand in the way of the application of AI. Here, too, it is up to the human processor to identify the corresponding interests and rights. They can then be countered by taking technical security precautions. Where this cannot be guaranteed in individual cases, the option remains to dispense with the use of AI.

   

• In some places, public procurement law prescribes regulations that are incompatible with purely computer-based processing de lege lata. One example is the four-eyes principle in the context of bid opening. In our view, however, even these elements do not speak across-the-board against the use of AI in the procurement procedure - corresponding procedural elements are then carried out by human processors, who can, however, make use of AI-based support for other procedural sections. Nevertheless, it remains the responsibility of the legislator to make public procurement law modern and thus open to AI.

Bird & Bird accompanies the new developments and ensures that advice is also provided at the most modern technical level. We develop innovative approaches for our clients. We also have expertise in procurement in the field. Please do not hesitate to contact us if you have any questions or need advice on the subject of AI.