New version of Procurement Clauses of AI available: supporting responsible use of AI in Public Authorities

The community on the Procurement of AI is glad to announce the finalisation of the EU model contractual AI Clauses to use in procurements of AI and invites public organisations to pilot them and give the AI community feedback on their use. The clauses are developed for pilot use in the procurement of AI with the aim to establish responsibilities for trustworthy, transparent, and accountable development of AI technologies between the supplier and the public organisation.

This work has been supported by the Directorate-General for Communications Networks, Content and Technology (DG CNECT), the Directorate General for Internal Market, Industry, Entrepreneurship, and SMEs (DG GROW), Living-in.EU – an EU-funded project, supporting digital transformation of public authorities across Europe, and Pels Riicken, a Dutch legal firm.

Supporting the responsible and transparent use of AI

Local authorities are increasingly using AI technologies and algorithmic systems to operate their territories and provide services to citizens. With AI having a bigger impact on citizens’ lives, there is a growing need for instruments that can guarantee the use of AI in a responsible and secure manner, ensuring for example transparency about the decision-making processes and accountability.

EU model contractual AI Clauses represent a fundamental tool for public authorities to use and pilot in their future procurement of AI technology. The EU model contractual AI clauses contain provisions specific to AI Systems and on matters covered by the proposed AI Act, thus excluding other obligations or requirements that may arise under relevant applicable legislation such as the General Data Protection Regulation. Furthermore, these EU model contractual AI clauses do not comprise a full contractual arrangement. They need to be customized to each specific contractual context.  For example, EU model contractual AI clauses do not contain any conditions concerning intellectual property, acceptance, payment, delivery times, applicable law or liability. The EU model contractual AI clauses are drafted in such a way that they can be attached as a schedule to an agreement in which such matters have already been laid down.

Preparation and Peer Review 

An initial version of the AI Clauses was drafted with the support of DG CNECT and DG GROW, in line with the proposed EU regulations on AI and based on similar examples already applied across Europe. This initial version of the clauses was drafted and later reviewed in a set of roundtables organised by Pels Rijcken and  Living-in.EU. The objective of these roundtables was to validate and improve the clauses with the support of experts from public sector bodies, academia, and the supply side. Over forty experts participated, selected via a public call for participation, and provided valuable feedback to the clauses, specifically the sections dedicated to requirements of AI systems, the issues of transparency and explainability, auditing, and accountability. We wish to thank all those involved and more specifically the experts, who have participated voluntarily and provided their valuable insights and contributed significant to the work of the community of practice. 

Results of the Peer Review 

Following peer review, the draft version of the EU model contractual AI Clauses has been revised with some adjustments. Some of those are presented below:

• The first draft version of the Clauses was based on the requirements and obligations for high-risk AI Systems included in Title III of the proposal for a Regulation on artificial intelligence (‘AI Act’) of the European Commission. Since the first draft, new adjustments to the AI Act have been presented, as well as proposals for the AI Act from the European Parliament and the Council have also become available. The final draft of the standard clauses has also incorporated some of these new requirements.
• An extended regime for sharing data between public authorities and suppliers has been incorporated into the AI clauses. This newly incorporated regime for data sharing distinguishes between Public Organisation Data Sets, Supplier Data Sets, and Third Party Data Sets.
• In addition to a full version of the standard clauses, a light version of the AI clauses has also been developed. This latter particularly targets non-high-risk AI systems.
• In order to provide more flexibility, several annexes have been added to the standard clauses, offering the possibility to make customised agreements.

Publication

The updated version of the EU model contractual AI Clauses is now available on the Public Buyers Community Platform, as a Resource.

We invite contracting authorities to use and test these clauses in their procurement of AI, and to provide us with feedback through the Community of Practice on AI.

The Clauses are currently being translated in all EU languages, to be published in October. More information will follow soon.