The purpose of this paper is to address the research question: What is the current legal environment across European Union (EU) member states in balancing the principles of transparency and confidentiality in public procurement, and how can public procurement practitioners engage with innovative technologies to resolve this conflict in decision-making?
This paper uses a combination of dogmatic-normative, comparative, analytical and model-building legal methods to examine how the legislation of all EU member states regulates the issue of data confidentiality in public procurement procedures and whether national frameworks foresee mechanisms for granting access to such information to other participants in the procurement process. The comparative method is applied to identify common features and divergences across all member states, ultimately demonstrating that clear legal rules addressing the conflict between confidentiality and transparency are generally lacking. The dogmatic-normative method serves to interpret relevant legal provisions and case law. In this context, particular attention is given to judgments of the Court in Lazio and the court of justice of the European Union (CJEU), which confirm that the problem has been recognized in judicial practice.
Benefits of decision support system (DSS) models powered by artificial intelligence (AI) could be their ability to accelerate and facilitate the classification of data, particularly in distinguishing between confidential and non-confidential information, if properly implemented. This process would then be essential for ensuring compliance with privacy laws and maintaining transparency in procurement procedures.
The development and potential subsequent application of DSS models powered by AI in public procurement, particularly in the context of innovations that balance the protection of confidential information on one hand and access to it on the other, would require close cooperation between legal professionals, procurement authorities and IT specialists. The development and potential use of modern technologies in public procurement procedures, including the issues addressed in this paper, would not aim to replace public procurement practitioners, but rather to facilitate operations in the highly complex legal field of public procurement.
The paper provides an overview of the importance of confidential information in public procurement, as well as a review of the legislation of all EU member states regarding the normative regulation of conflicts between transparency and confidentiality. It examines whether DSS models are already being applied in public procurement and proposes further development through the use of modern technologies. Specifically, it demonstrates that such applications could potentially assist in resolving conflicts between transparency and confidentiality in public procurement.
