Procurement Tools for AI Regulation by Contract. Not the Sharpest in the Shed

This Chapter continues unpacking the gatekeeping role assigned to the procurement function in the context of public sector digitalisation. After the analysis of procurement as a regulatory actor in https://ssrn.com/abstract=4351555, the focus is now put on the procedural and substantive procurement tools that could be used for AI regulation by contract to assess their suitability for the task. The Chapter takes a cradle-to-grave view of the different mechanisms and principles of procurement that could be activated to create or enforce digital regulation requirements. It primarily seeks to ascertain whether procurement tools could effectively operationalise digital regulation goals without simply transferring regulatory decisions to economic operators—as the primary purpose of the emerging gatekeeping role is to discipline their behaviour and to operate as a market-shaping or norm-setting mechanism. The analysis is carried out by reference to EU law. However, the analysis is functional and the insights on the difficulties and limitations in using procurement for digital regulation can be exported to other systems and jurisdictions with equivalent features and mechanisms. The Chapter shows that limitations in the permitted prescriptiveness of procurement requirements significantly raise the complexity or simply make it impossible to effectively use procurement tools for digital regulation purposes either from a ‘command and control’ or a responsive regulation perspective—at least in the absence of externally determined mandatory requirements