Chapter IV – Procurement of data centre services, cloud computing services, software and AI systems by the Commission (Art. 37-40)

Art. 37 Cloud and AI Development Act - Procurement activities of the Commission arrow_right_alt

The Commission may carry out procurement activities to procure data centre services, cloud computing services, software and AI systems for itself and forUnion entitiesand for contracting authorities of Member States , in accordance with Regulation (EU, Euratom) 2024/2509, subject to the exceptions set out in this Chapter. By way of derogation from Article 168 of Regulation (EU, Euratom) 2024/2509, partner organisations referred to in Article 168(3) of that Regulation selected by the Commission may also participate in the procurement activities set out in this Chapter. Contracting authorities of Member States, Union entities, and partner organisations selected by the Commission, shall be considered as ‘participating entities’ under this Chapter.
Contracting authorities may participate in the procurement procedures on their own behalf, or as central purchasing bodies within the meaning of Article 2(1), point (16) of Directive 2014/24/EU when they qualify as such. Specific rules and obligations governing their participation may be imposed where they participate as central purchasing bodies in the agreement referred to in Article 38.
In addition to the procurement activities provided for in Article 168 of Regulation (EU, Euratom) 2024/2509, the Commission may act as a central purchasing body for contracting authorities of Member States and partner organisations selected by the Commission, by:
1. procuring data centre services, cloud computing services, software and AI systems on behalf of, or in the name of, one or more contracting authorities of Member States and partner organisations selected by the Commission, by concluding framework contracts or operating dynamic purchasing systems for services intended for the participating entities;
2. acting as a wholesaler by acquiring such services and supplies and reselling them or, in exceptional circumstances, donating them to one or more contracting authorities of Member States.
In carrying out procurement activities, the Commission may provide ancillary support to participating entities, including:
1. technical infrastructure enabling participating entities to use awarded contracts or award contracts, including specific contracts under concluded framework agreements, for data centre services, cloud computing services, software and AI systems;
2. advice and support on preparing and implementing procurement procedures;
3. preparation and conduct of procurement procedures on behalf of, or in the name of, the entities concerned;
4. invoicing and other administrative services relating to the contracts awarded.
Such ancillary support may be provided directly by the Commission, through a subcontractor, or by delegation to Union bodies or agencies. Accession of participating entities to the agreement referred to in Article 38 may be subject to the acceptance of one or more ancillary support services.
The Commission may establish and manage a common procurement platform including services that may be used to facilitate the procurement activities under this Chapter.

Art. 38 Cloud and AI Development Act - Arrangements for the procurement activities by the Commission arrow_right_alt

Before any procurement activity to be carried out under Article 37, the Commission and at least two Member States shall enter into an agreement laying down the practical arrangements for the procurement activities carried out by the Commission under this Chapter. The agreement shall cover procurement procedures to be carried out during its period of validity and shall be deemed to satisfy the requirements of the joint procurement agreement and mandate referred to in Article 168(2) and (3) of Regulation (EU, Euratom) 2024/2509.
The agreement shall constitute a mandate for the Commission to procure on behalf of, or in the name of, the participating entities within the meaning of Article 168(3), point (e), of Regulation (EU, Euratom) 2024/2509.
The agreement shall include the practical arrangements for the participation of entities, the decision-making process for the choice of procedure and the applicable conditions, the evaluation of requests for participation and tenders, the award of contracts, and the applicable law and competent jurisdiction. The Commission shall remain responsible for the operation and management of procurement activities, including for deciding on the launch of a procurement procedure, the type of procedure and of contract, and the award of contracts.
The agreement shall establish a Steering Committee composed of the Commission and one representative from each participating Member States at national level. Member States may accede to the agreement at a later stage and shall then be represented in the Steering Committee. The Steering Committee may appoint additional representatives of other Union entities, of contracting authorities of Member States and of partner organisations selected by the Commission.
The Steering Committee shall be responsible for the strategic oversight of the procurement activities, including for proposing the strategic direction of the procurement agenda for a fixed period, and for approving the strategic direction of each procurement procedure before it is launched by the Commission, to ensure its compliance with the framework established by this Regulation.
Once the agreement has entered into force, contracting authorities of participating Member States, Union entities and partner organisations selected by the Commission may accede to and benefit from it and shall be considered as participating entities in the procedures in which they elect to participate. The Steering Committee may determine that the agreement shall take the form of a contract of adhesion.
The participation of a contracting authority of a Member State shall not be conditional on that Member State’s participation.
The Steering Committee shall set transparent and non-discriminatory conditions for contracting authorities of Member States to accede to the agreement, in particular as regards size, minimum amounts and other objective criteria. The Steering Committee shall also set out the rules and procedures governing the termination of participation in the agreement of a contracting authority of a Member State that has failed to comply with its obligations under the agreement.
By way of derogation from Article 168(2) of Regulation (EU, Euratom) 2014/2509, the Steering Committee may approve the participation of contracting authorities from EFTA States and Union candidate countries without the need for a bilateral or multilateral treaty provided for such possibility.
The Steering Committee may make accession to the agreement conditional on participating entities accepting one or more ancillary support services, as set out in Article 37.
The Steering Committee shall adopt its rules of procedure, following a proposal from the Commission.

Art. 39 Cloud and AI Development Act - Applicable public procurement framework arrow_right_alt

A participating entity shall be deemed to have fulfilled its obligations under applicable Union public procurement law where it acquires supplies or services by means of contracts awarded by the Commission under this Chapter, including through framework contracts concluded by or dynamic purchasing systems operated by the Commission acting as a central purchasing body, or any ancillary support services referred to in Article 37.
The procedural provisions applicable to Union institutions shall apply to the procedures for the award of specific contracts under framework contracts or dynamic purchasing systems.
A contracting authority that has acquired data centre services, cloud computing services, software and AI systems from the Commission as a central purchasing body shall ensure, in its agreements with the contracting authorities it serves, compliance with any contractual requirements by which it is itself bound.
The Commission may decide to launch a procurement procedure open to participating entities without a prior specific request from them.
By way of derogation from Article 168 of Regulation (EU, Euratom) 2024/2509, participating entities may request from the Commission, throughout the period of validity of a dynamic purchasing system, the possibility to participate in the system. Such request shall be approved by the Commission provided that the cumulative requests do not exceed 50% of the initial estimated quantities of the envisaged purchases. The participation shall be approved within 10 working days of receipt of the request and shall allow the participating entities to be included in any future invitation to tender.
The possibility referred to in paragraph 5 shall be available only to participating entities that accede to the agreement referred to in Article 38 after the dynamic purchasing system has been launched.

Art. 40 Cloud and AI Development Act - Fees for procurement activities arrow_right_alt

The costs arising from the procurement activities carried out pursuant to this Chapter shall be jointly financed by the participating entities through fees levied by the Commission.
The costs incurred in establishing the common procurement activities referred to in Article 37, including the development of the common procurement platform, may be initially borne by the general budget of the Union. In such case, they shall be reimbursed by the participating entities over a period not exceeding three years from the date on which they were borne by the Union. The Commission may adopt implementing acts laying down the practical and operational arrangements for reimbursement by the participating entities. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 46(2).
Revenues generated by the fees shall constitute internal assigned revenues within the meaning of Article 21(3), point (a), of Regulation (EU, Euratom) 2024/2509. Those revenues shall be assigned to cover the costs of the procurement activities carried out pursuant to Article 37. Any revenue remaining after covering those costs shall be entered into the general budget of the Union.
The fees shall be set in advance, shall be proportionate to the estimated costs of the activities for which fees are chargeable as determined in a cost-effective way, reflecting practices of comparable procurement frameworks, and shall be sufficient to cover those costs.
5.The Commission shall adopt implementing acts laying down detailed rules for determining the fees, specifying the following:
1. the estimated costs attributable to the procurement activities for which fees are chargeable;
2. the individual amounts of the chargeable fees;
3. the manner and conditions under which the fees are to be paid;
4. the conditions under which the fees are to be paid.
Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 46(2).

Cloud and AI Development Act (CADA)

Chapter IV – Procurement of data centre services, cloud computing services, software and AI systems by the Commission (Art. 37-40)

Art. 37 Cloud and AI Development Act - Procurement activities of the Commission arrow_right_alt

Art. 38 Cloud and AI Development Act - Arrangements for the procurement activities by the Commission arrow_right_alt

Art. 39 Cloud and AI Development Act - Applicable public procurement framework arrow_right_alt

Art. 40 Cloud and AI Development Act - Fees for procurement activities arrow_right_alt