Thoughts on the AI Safety Summit from a public sector procurement & use of AI perspective

The UK Government hosted an AI Safety Summit on 1-2 November 2023. A summary of the targeted discussions in a set of 8 roundtables has been published for Day 1, as well as a set of Chair’s statements for Day 2, including considerations around safety testing, the state of the science, and a general summary of discussions. There is also, of course, the (flagship?) Bletchley Declaration, and an introduction to the announced AI Safety Institute (UK AISI).

In this post, I collect some of my thoughts on these outputs of the AI Safety Summit from the perspective of public sector procurement and use of AI.

What was said at the AI safety Summit?

Although the summit was narrowly targeted to discussion of ‘frontier AI’ as particularly advanced AI systems, some of the discussions seem to have involved issues also applicable to less advanced (ie currently in existence) AI systems, and even to non-AI algorithms used by the public sector. As the general summary reflects, ‘There was also substantive discussion of the impact of AI upon wider societal issues, and suggestions that such risks may themselves pose an urgent threat to democracy, human rights, and equality. Participants expressed a range of views as to which risks should be prioritised, noting that addressing frontier risks is not mutually exclusive from addressing existing AI risks and harms.’ Crucially, ‘participants across both days noted a range of current AI risks and harmful impacts, and reiterated the need for them to be tackled with the same energy, cross-disciplinary expertise, and urgency as risks at the frontier.’ Hopefully, then, some of the rather far-fetched discussions of future existential risks can be conducive to taking action on current harms and risks arising from the procurement and use of less advanced systems.

There seemed to be some recognition of the need for more State intervention through regulation, for more regulatory control of standard-setting, and for more attention to be paid to testing and evaluation in the procurement context. For example, the summary of Day 1 discussions indicates that participants agreed that

  • ‘We should invest in basic research, including in governments’ own systems. Public procurement is an opportunity to put into practice how we will evaluate and use technology.’ (Roundtable 4)

  • ‘Company policies are just the baseline and don’t replace the need for governments to set standards and regulate. In particular, standardised benchmarks will be required from trusted external third parties such as the recently announced UK and US AI Safety Institutes.’ (Roundtable 5)

In Day 2, in the context of safety testing, participants agreed that

  • Governments have a responsibility for the overall framework for AI in their countries, including in relation to standard setting. Governments recognise their increasing role for seeing that external evaluations are undertaken for frontier AI models developed within their countries in accordance with their locally applicable legal frameworks, working in collaboration with other governments with aligned interests and relevant capabilities as appropriate, and taking into account, where possible, any established international standards.

  • Governments plan, depending on their circumstances, to invest in public sector capability for testing and other safety research, including advancing the science of evaluating frontier AI models, and to work in partnership with the private sector and other relevant sectors, and other governments as appropriate to this end.

  • Governments will plan to collaborate with one another and promote consistent approaches in this effort, and to share the outcomes of these evaluations, where sharing can be done safely, securely and appropriately, with other countries where the frontier AI model will be deployed.

This could be a basis on which to build an international consensus on the need for more robust and decisive regulation of AI development and testing, as well as a consensus of the sets of considerations and constraints that should be applicable to the procurement and use of AI by the public sector in a way that is compliant with individual (human) rights and social interests. The general summary reflects that ‘Participants welcomed the exchange of ideas and evidence on current and upcoming initiatives, including individual countries’ efforts to utilise AI in public service delivery and elsewhere to improve human wellbeing. They also affirmed the need for the benefits of AI to be made widely available’.

However, some statements seem at first sight contradictory or problematic. While the excerpt above stresses that ‘Governments have a responsibility for the overall framework for AI in their countries, including in relation to standard setting’ (emphasis added), the general summary also stresses that ‘The UK and others recognised the importance of a global digital standards ecosystem which is open, transparent, multi-stakeholder and consensus-based and many standards bodies were noted, including the International Standards Organisation (ISO), International Electrotechnical Commission (IEC), Institute of Electrical and Electronics Engineers (IEEE) and relevant study groups of the International Telecommunication Union (ITU).’ Quite how State responsibility for standard setting fits with industry-led standard setting by such organisations is not only difficult to fathom, but also one of the potentially most problematic issues due to the risk of regulatory tunnelling that delegation of standard setting without a verification or certification mechanism entails.

Moreover, there seemed to be insufficient agreement around crucial issues, which are summarised as ‘a set of more ambitious policies to be returned to in future sessions’, including:

‘1. Multiple participants suggested that existing voluntary commitments would need to be put on a legal or regulatory footing in due course. There was agreement about the need to set common international standards for safety, which should be scientifically measurable.

2. It was suggested that there might be certain circumstances in which governments should apply the principle that models must be proven to be safe before they are deployed, with a presumption that they are otherwise dangerous. This principle could be applied to the current generation of models, or applied when certain capability thresholds were met. This would create certain ‘gates’ that a model had to pass through before it could be deployed.

3. It was suggested that governments should have a role in testing models not just pre- and post-deployment, but earlier in the lifecycle of the model, including early in training runs. There was a discussion about the ability of governments and companies to develop new tools to forecast the capabilities of models before they are trained.

4. The approach to safety should also consider the propensity for accidents and mistakes; governments could set standards relating to how often the machine could be allowed to fail or surprise, measured in an observable and reproducible way.

5. There was a discussion about the need for safety testing not just in the development of models, but in their deployment, since some risks would be contextual. For example, any AI used in critical infrastructure, or equivalent use cases, should have an infallible off-switch.

8. Finally, the participants also discussed the question of equity, and the need to make sure that the broadest spectrum was able to benefit from AI and was shielded from its harms.’

All of these are crucial considerations in relation to the regulation of AI development, (procurement) and use. A lack of consensus around these issues already indicates that there was a generic agreement that some regulation is necessary, but much more limited agreement on what regulation is necessary. This is clearly reflected in what was actually agreed at the summit.

What was agreed at the AI Safety Summit?

Despite all the discussions, little was actually agreed at the AI Safety Summit. The Blethcley Declaration includes a lengthy (but rather uncontroversial?) description of the potential benefits and actual risks of (frontier) AI, some rather generic agreement that ‘something needs to be done’ (eg welcoming ‘the recognition that the protection of human rights, transparency and explainability, fairness, accountability, regulation, safety, appropriate human oversight, ethics, bias mitigation, privacy and data protection needs to be addressed’) and very limited and unspecific commitments.

Indeed, signatories only ‘committed’ to a joint agenda, comprising:

  • ‘identifying AI safety risks of shared concern, building a shared scientific and evidence-based understanding of these risks, and sustaining that understanding as capabilities continue to increase, in the context of a wider global approach to understanding the impact of AI in our societies.

  • building respective risk-based policies across our countries to ensure safety in light of such risks, collaborating as appropriate while recognising our approaches may differ based on national circumstances and applicable legal frameworks. This includes, alongside increased transparency by private actors developing frontier AI capabilities, appropriate evaluation metrics, tools for safety testing, and developing relevant public sector capability and scientific research’ (emphases added).

This does not amount to much that would not happen anyway and, given that one of the UK Government’s objectives for the Summit was to create mechanisms for global collaboration (‘a forward process for international collaboration on frontier AI safety, including how best to support national and international frameworks’), this agreement for each jurisdiction to do things as they see fit in accordance to their own circumstances and collaborate ‘as appropriate’ in view of those seems like a very poor ‘win’.

In reality, there seems to be little coming out of the Summit other than a plan to continue the conversations in 2024. Given what had been said in one of the roundtables (num 5) in relation to the need to put in place adequate safeguards: ‘this work is urgent, and must be put in place in months, not years’; it looks like the ‘to be continued’ approach won’t do or, at least, cannot be claimed to have made much of a difference.

What did the UK Government promise in the AI Summit?

A more specific development announced with the occasion of the Summit (and overshadowed by the earlier US announcement) is that the UK will create the AI Safety Institute (UK AISI), a ‘state-backed organisation focused on advanced AI safety for the public interest. Its mission is to minimise surprise to the UK and humanity from rapid and unexpected advances in AI. It will work towards this by developing the sociotechnical infrastructure needed to understand the risks of advanced AI and enable its governance.’

Crucially, ‘The Institute will focus on the most advanced current AI capabilities and any future developments, aiming to ensure that the UK and the world are not caught off guard by progress at the frontier of AI in a field that is highly uncertain. It will consider open-source systems as well as those deployed with various forms of access controls. Both AI safety and security are in scope’ (emphasis added). This seems to carry forward the extremely narrow focus on ‘frontier AI’ and catastrophic risks that augured a failure of the Summit. It is also in clear contrast with the much more sensible and repeated assertions/consensus in that other types of AI cause very significant risks and that there is ‘a range of current AI risks and harmful impacts, and reiterated the need for them to be tackled with the same energy, cross-disciplinary expertise, and urgency as risks at the frontier.’

Also crucially, UK AISI ‘is not a regulator and will not determine government regulation. It will collaborate with existing organisations within government, academia, civil society, and the private sector to avoid duplication, ensuring that activity is both informing and complementing the UK’s regulatory approach to AI as set out in the AI Regulation white paper’.

According to initial plans, UK AISI ‘will initially perform 3 core functions:

  • Develop and conduct evaluations on advanced AI systems, aiming to characterise safety-relevant capabilities, understand the safety and security of systems, and assess their societal impacts

  • Drive foundational AI safety research, including through launching a range of exploratory research projects and convening external researchers

  • Facilitate information exchange, including by establishing – on a voluntary basis and subject to existing privacy and data regulation – clear information-sharing channels between the Institute and other national and international actors, such as policymakers, international partners, private companies, academia, civil society, and the broader public’

It is also stated that ‘We see a key role for government in providing external evaluations independent of commercial pressures and supporting greater standardisation and promotion of best practice in evaluation more broadly.’ However, the extent to which UK AISI will be able to do that will hinge on issues that are not currently clear (or publicly disclosed), such as the membership of UK AISI or its institutional set up (as ‘state-backed organisation’ does not say much about this).

On that very point, it is somewhat problematic that the UK AISI ‘is an evolution of the UK’s Frontier AI Taskforce. The Frontier AI Taskforce was announced by the Prime Minister and Technology Secretary in April 2023’ (ahem, as ‘Foundation Model Taskforce’—so this is the second rebranding of the same initiative in half a year). As is problematic that UK AISI ‘will continue the Taskforce’s safety research and evaluations. The other core parts of the Taskforce’s mission will remain in [the Department for Science, Innovation and Technology] as policy functions: identifying new uses for AI in the public sector; and strengthening the UK’s capabilities in AI.’ I find the retention of analysis pertaining to public sector AI use within government problematic and a clear indication of the UK’s Government unwillingness to put meaningful mechanisms in place to monitor the process of public sector digitalisation. UK AISI very much sounds like a research institute with a focus on a very narrow set of AI systems and with a remit that will hardly translate into relevant policymaking in areas in dire need of regulation. Finally, it is also very problematic that funding is not locked: ‘The Institute will be backed with a continuation of the Taskforce’s 2024 to 2025 funding as an annual amount for the rest of this decade, subject to it demonstrating the continued requirement for that level of public funds.’ In reality, this means that the Institute’s continued existence will depend on the Government’s satisfaction with its work and the direction of travel of its activities and outputs. This is not at all conducive to independence, in my view.

So, all in all, there is very little new in the announcement of the creation of the UK AISI and, while there is a (theoretical) possibility for the Institute to make a positive contribution to regulating AI procurement and use (in the public sector), this seems extremely remote and potentially undermined by the Institute’s institutional set up. This is probably in stark contrast with the US approach the UK is trying to mimic (though more on the US approach in a future entry).

Two roles of procurement in public sector digitalisation: gatekeeping and experimentation

In a new draft chapter for my monograph, I explore how, within the broader process of public sector digitalisation, and embroiled in the general ‘race for AI’ and ‘race for AI regulation’, public procurement has two roles. In this post, I summarise the main arguments (all sources, included for quoted materials, are available in the draft chapter).

This chapter frames the analysis in the rest of the book and will be fundamental in the review of the other drafts, so comments would be most welcome (a.sanchez-graells@bristol.ac.uk).

Public sector digitalisation is accelerating in a regulatory vacuum

Around the world, the public sector is quickly adopting digital technologies in virtually every area of its activity, including the delivery of public services. States are not solely seeking to digitalise their public sector and public services with a view to enhance their operation (internal goal), but are also increasingly willing to use the public sector and the construction of public infrastructure as sources of funding and spaces for digital experimentation, to promote broader technological development and boost national industries in a new wave of (digital) industrial policy (external goal). For example, the European Commission clearly seeks to make the ‘public sector a trailblazer for using AI’. This mirrors similar strategic efforts around the globe. The process of public sector digitalisation is thus embroiled in the broader race for AI.

Despite the fact that such dynamic of public sector digitalisation raises significant regulatory risks and challenges, well-known problems in managing uncertainty in technology regulation—ie the Collingridge dilemma or pacing problem (‘cannot effectively regulate early on, so will probably regulate too late’)—and different normative positions, interact with industrial policy considerations to create regulatory hesitation and side-line anticipatory approaches. This creates a regulatory gap —or rather a laissez faire environment—whereby the public sector is allowed to experiment with the adoption of digital technologies without clear checks and balances. The current strategy is by and large one of ‘experiment first, regulate later’. And while there is little to no regulation, there is significant experimentation and digital technology adoption by the public sector.

Despite the emergence of a ‘race for AI regulation’, there are very few attempts to regulate AI use in the public sector—with the EU’s proposed EU AI Act offering a (partial) exception—and general mechanisms (such as judicial review) are proving slow to adapt. The regulatory gap is thus likely to remain, at least partially, in the foreseeable future—not least, as the effective functioning of new rules such as the EU AI Act will not be immediate.

Procurement emerges as a regulatory gatekeeper to plug that gap

In this context, proposals have started to emerge to use public procurement as a tool of digital regulation. Or, in other words, to use the acquisition of digital technologies by the public sector as a gateway to the ‘regulation by contract’ of their use and governance. Think tanks, NGOs, and academics alike have stressed that the ‘rules governing the acquisition of algorithmic systems by governments and public agencies are an important point of intervention in ensuring their accountable use’, and that procurement ‘is a central policy tool governments can deploy to catalyse innovation and influence the development of solutions aligned with government policy and society’s underlying values’. Public procurement is thus increasingly expected to play a crucial gatekeeping role in the adoption of digital technologies for public governance and the delivery of public services.

Procurement is thus seen as a mechanism of ‘regulation by contract’ whereby the public buyer can impose requirements seeking to achieve broad goals of digital regulation, such as transparency, trustworthiness, or explainability, or to operationalise more general ‘AI ethics’ frameworks. In more detail, the Council of Europe has recommended using procurement to: (i) embed requirements of data governance to avoid violations of human rights norms and discrimination stemming from faulty datasets used in the design, development, or ongoing deployment of algorithmic systems; (ii) ‘ensure that algorithmic design, development and ongoing deployment processes incorporate safety, privacy, data protection and security safeguards by design’; (iii) require ‘public, consultative and independent evaluations of the lawfulness and legitimacy of the goal that the [procured algorithmic] system intends to achieve or optimise, and its possible effects in respect of human rights’; (iv) require the conduct of human rights impact assessments; or (v) promote transparency of the ‘use, design and basic processing criteria and methods of algorithmic systems’.

Given the absence of generally applicable mandatory requirements in the development and use of digital technologies by the public sector in relation to some or all of the stated regulatory goals, the gatekeeping role of procurement in digital ‘regulation by contract’ would mostly involve the creation of such self-standing obligations—or at least the enforcement of emerging non-binding norms, such as those developed by (voluntary) standardisation bodies or, more generally, by the technology industry. In addition to creating risks of regulatory capture and commercial determination, this approach may overshadow the difficulties in using procurement for the delivery of the expected regulatory goals. A closer look at some selected putative goals of digital regulation by contract sheds light on the issue.

Procurement is not at all suited to deliver incommensurable goals of digital regulation

Some of the putative goals of digital regulation by contract are incommensurable. This is the case in particular of ‘trustworthiness’ or ‘responsibility’ in AI use in the public sector. Trustworthiness or responsibility in the adoption of AI can have several meanings, and defining what is ‘trustworthy AI’ or ‘responsible AI’ is in itself contested. This creates a risk of imprecision or generality, which could turn ‘trustworthiness’ or ‘responsibility’ into mere buzzwords—as well as exacerbate the problem of AI ethics-washing. As the EU approach to ‘trustworthy AI’ evidences, the overarching goals need to be broken down to be made operational. In the EU case, ‘trustworthiness’ is intended to cover three requirements for lawful, ethical, and robust AI. And each of them break down into more detailed or operationalizable requirements.

In turn, some of the goals into which ‘trustworthiness’ or ‘responsibility’ breaks down are also incommensurable. This is notably the case of ‘explainability’ or interpretability. There is no such thing as ‘the explanation’ that is required in relation to an algorithmic system, as explanations are (technically and legally) meant to serve different purposes and consequently, the design of the explainability of an AI deployment needs to take into account factors such as the timing of the explanation, its (primary) audience, the level of granularity (eg general or model level, group-based, or individual explanations), or the level of risk generated by the use of the technical solution. Moreover, there are different (and emerging) approaches to AI explainability, and their suitability may well be contingent upon the specific intended use or function of the explanation. And there are attributes or properties influencing the interpretability of a model (eg clarity) for which there are no evaluation metrics (yet?). Similar issues arise with other putative goals, such as the implementation of a principle of AI minimisation in the public sector.

Given the way procurement works, it is ill-suited for the delivery of incommensurable goals of digital regulation.

Procurement is not well suited to deliver other goals of digital regulation

There are other goals of digital regulation by contract that are seemingly better suited to delivery through procurement, such as those relating to ‘technical’ characteristics such as neutrality, interoperability, openness, or cyber security, or in relation to procurement-adjacent algorithmic transparency. However, the operationalisation of such requirements in a procurement context will be dependent on a range of considerations, such as judgements on the need to keep information confidential, judgements on the state of the art or what constitutes a proportionate and economically justified requirement, the generation of systemic effects that are hard to evaluate within the limits of a procurement procedure, or trade-offs between competing considerations. The extent to which procurement will be able to operationalise the desired goals of digital regulation will depend on its institutional embeddedness and on the suitability of procurement tools to impose specific regulatory approaches. Additional analysis conducted elsewhere (see here and here) suggests that, also in relation to these regulatory goals, the emerging approach to AI ‘regulation by contract’ cannot work well.

Procurement digitalisation offers a valuable case study

The theoretical analysis of the use of procurement as a tool of digital ‘regulation by contract’ (above) can be enriched and further developed with an in-depth case study of its practical operation in a discrete area of public sector digitalisation. To that effect, it is important to identify an area of public sector digitalisation which is primarily or solely left to ‘regulation by contract’ through procurement—to isolate it from the interaction with other tools of digital regulation (such as data protection, or sectoral regulation). It is also important for the chosen area to demonstrate a sufficient level of experimentation with digitalisation, so that the analysis is not a mere concretisation of theoretical arguments but rather grounded on empirical insights.

Public procurement is itself an area of public sector activity susceptible to digitalisation. The adoption of digital tools is seen as a potential source of improvement and efficiency in the expenditure of public funds through procurement, especially through the adoption of digital technology solutions developed in the context of supply chain management and other business operations in the private sector (or ‘ProcureTech’), but also through the adoption of digital tools tailored to the specific goals of procurement regulation, such as the prevention of corruption or collusion. There is emerging evidence of experimentation in procurement digitalisation, which is shedding light on regulatory risks and challenges.

In view of its strategic importance and the current pace of procurement digitalisation, it is submitted that procurement is an appropriate site of public sector experimentation in which to explore the shortcomings of the approach to AI ‘regulation by contract’. Procurement is an adequate case study because, being a ‘back-office’ function, it does not concern (likely) high-risk uses of AI or other digital technologies, and it is an area where data protection regulation is unlikely to provide a comprehensive regulatory framework (eg for decision automation) because the primary interactions are between public buyers and corporate institutions.

Procurement therefore currently represents an unregulated digitalisation space in which to test and further explore the effectiveness of the ‘regulation by contract’ approach to governing the transition to a new model of digital public governance.

* * * * * *

The full draft is available on SSRN as: Albert Sanchez-Graells, ‘The two roles of procurement in the transition towards digital public governance: procurement as regulatory gatekeeper and as site for public sector experimentation’ (March 10, 2023): https://ssrn.com/abstract=4384037.

Procurement sandboxes, mock procurements and some other thoughts on trying to create space for ‘real world’ experimentation

One of the issues discussed at the most recent meeting of the European Commission Stakeholder Expert Group on Public Procurement (SEGPP) concerned the difficult balance between, on the one hand, promoting integrity in procurement, imposing strict record-keeping requirements (in line with Art 84(2) Dir 2014/24) and ensuring procedural soundness and, on the other hand, avoiding stifling discretion and killing procurement innovation by imposing an excessively rigid straitjacket on procurement professionals (ie how to ensure procurement probity without scaring procurement professionals into following a narrow well-trodden tick-boxing path). In the background, the worry was that procurement professionals that tried to do something 'differently' would be under the Damocles sword of litigation and liability--which would prevent most of them from exploring the boundaries of existing regulation, or possibly induce the most daring to do things under the radar and either not document or not share their practices.

In this context, I suggested that it could be interesting to follow the example of UK financial regulation of FinTech and RegTech innovation (of which I only know a bit thanks to the work of my Bristol colleagues Prof Stanton & Dr Powley, see here) and consider the possibility of creating sandbox experimentation programmes at national level (with the oversight and support of the European Commission). These would be pilot initiatives where, following an application for an exemption from standard enforcement procedures (that is, both infringement procedures under Art 258 TFEU and domestic remedies systems), contracting authorities wanting to explore innovative procedural approaches could seek to take ‘challenge worries’ out of the equation and concentrate on experimenting around innovative procurement processes or on trying out approaches that may not necessarily (easily) fit within the existing regulatory constraints.

Let’s say that the proposal was met with scepticism, but (hopefully) noted for future discussion and consideration.

On further reflection, I truly think that this would be an important contribution to the improvement of public procurement practice and, in the long term, an important input for more practice-oriented regulation. It would, first and foremost, avoid ‘innovative’ or ‘risk-seeking’ public authorities the pains of having to take the issue in their own hands and possibly engage in non-compliant (ie illegal) procedures for the sake of commercial or operative considerations. It would also allow participating undertakings to test the limits of the system and to contribute to a more business-friendly regulation of public procurement. Finally, it would provide a useful space for ‘natural’ experimentation and avoid procurement policy-making (and scholarship!) being always based on theoretical constructions, or on ex post facto conceptualisations/justifications. All in all, in such an applied field of public law/public administration/public management activity, the possibility of resorting to ‘real world’ experimentation would be most welcome and, if done well, potentially very productive.

Thus, I think it may be appropriate to spell out my proposal in some more detail and to invite you all, dear readers, to engage in the discussion—which I will do my best to bring to the attention of my colleagues at the SEGPP and the European Commission in future meetings.

A fuller sketch of my proposal for the creation of procurement sandbox programmes

In compliance with a voluntary general framework created by the European Commission, Member States would create their ‘procurement experimentation programmes’, which would include a choice of options amongst the creation of procurement sandboxes, opportunities (and funding) for mock procurement, and other similar alternatives aimed at facilitating procurement innovation (mind, not the procurement of innovation) by limiting the risk of legal challenge and liability due to an open and transparent engagement in ‘real world’ experimentation with ideas for an improvement of procurement practice—and, on the basis of the learning derived from that practice, of procurement regulation too. Ideally, there could be a prize for best procurement innovation and best contribution to innovation by a participating undertaking, as well as clear pathways for researchers to feed ideas and seek support for experimentation and/or use of the data resulting from the programme.

In order to be ‘allowed to play in the procurement sandbox’, contracting authorities would need to provide a clear rationale of the benefits they sought to obtain with the experiment, as well as a clear description of the specific issues with which they thought compliance would be impossible or tricky, their initial plan of how to deal with them, and a method for the assessment, reporting, and dissemination of insights. In view of such application, the European Commission and the competent domestic authority would decide whether to grant authorisation, as well as the scope of the experiment (in terms of value, duration, and conditions for the experiment). Approved ‘sandbox procurement’ would be advertised as such and participating tenderers would explicitly have to provide a waiver of their right to challenge the final decision on the basis of any of the ‘sandboxed’ issues.

For example, if the contracting authority wanted to experiment around modes of delivery of a specific service, then challenges on the basis of the evaluation of delivery services or the award of parallel contracts (or lots) to providers using different delivery alternatives would not be justiciable—while other issues, such as breaches of transparency requirements or the duty to provide reasons for the specific decisions would be open to challenge.

Similarly, if the contracting authority wanted to experiment around documentary requirements, or around the possibility of doing trial runs in parallel with different suppliers as part of an extended negotiation, or if the contracting authority wanted to trial some ‘sophisticated’ information management strategy during an electronic auction, etc – then, interested undertakings would need to ‘be game’ and accept that their participation in the procedure was primarily for the purpose of experimentation, but would not give them enforceable rights. Of course, in order to incentivise participation, sandbox procurement could (and should) be sweetened by the contracting authority through the payment of participation fees.

Sandbox procurement could also be (randomly) conducted in the context of mock procurement trials not leading to the award of an actual contract—provided the tenderers did not know whether there was a contract to be gained at the end of the process or not (in which case, they would receive a compensation for the participation costs)—similarly to the carrying out of medical experiments involving the use of placebo—although in this case the issue would not necessarily be aimed at creating a control group, but rather at allowing for procurement experimentation with limited financial implications (in particular if the experiment went badly).

Needless to say, sandbox procurement would be most appropriate in scenarios involving scalable procurement innovations, and coordination on an EU-wide basis could allow for the replication of experiments in the context of different legal and business settings, as well as a reduction (if not avoidance) of duplication of innovative efforts.

Upon conclusion of the experiment, the contracting authority and the participating tenderers would draw a report that would be publicly accessible and, progressively, contribute towards the creation of a database of procurement experiments. This would allow for cross-dissemination of innovative best practices, as well as provide good insights into procurement improvement, both at policy-making and legislative levels.

I am aware that this is a controversial, and definitely only half-baked proposal, but I think this is one worth discussing and exploring in the future. Please let me know your thoughts.