Testing the limits of ChatGPT’s procurement knowledge (and stubbornness) – guest post by Džeina Gaile

Following up on the discussion whether public sector use of ChatGPT should be banned, in this post, Džeina Gaile* shares an interesting (and at points unnerving) personal experiment with the tool. Džeina asked a few easy questions on the topic of her PhD research (tender clarifications).

The answers – and the ‘hallucinations’, that is, the glaring mistakes – and the tone are worth paying attention to. I find the bit of the conversation on the very existence of Article 56 and the content of Article 56(3) Directive 2014/24/EU particularly (ahem) illuminating. Happy reading!

PS. If you take Džeina up on her provocation and run your own procurement experiment on ChatGPT (or equivalent), I will be delighted to publish it here as well.

Liar, liar, pants on fire – what ChatGPT did not teach me
about my own PhD research topic

 DISCLAIMER: The views provided here are just a result of an experiment by some random procurement expert that is not a specialist in IT law or any other AI-related law field.

If we consider law as a form of art, as lawyers, words are our main instrument. Therefore, we have a special respect for language as well as the facts that our words represent. We know the liability that comes with the use of the wrong words. One problem with ChatGPT is - it doesn't. 

This brings us to an experiment that could be performed by anyone having at least basic knowledge of the internet and some in-depth knowledge in some specific field, or at least an idea of the information that could be tested on the web. What can you do? Ask ChatGPT (or equivalent) some questions you already know the answers to. It would be nice if the (expected) answers include some facts, numbers, or people you can find on Google. Just remember to double-check everything. And see how it goes.

My experiment was performed on May 3rd, 4th and 17th, 2023, mostly in the midst of yet another evening spent trying to do something PhD related. (As you may know, the status of student upgrades your procrastination skills to a level you never even knew before, despite your age. That is how this article came about).

I asked ChatGPT a few questions on my research topic for fun and possible insights. At the end of this article, you can see quite long excerpts from our conversation, where you will find that maybe you can get the right information (after being very persuasive with your questions!), but not always, as in the case of the May 4th and 17th interactions. And you can get very many apologies during that (if you are into that).[1]

However, such a need for persuasion oughtn’t be necessary if the information is relatively easy to find, since, well, we all have used Google and it already knows how to find things. Also, you can call the answers given on May 4th and 17th misleading, or even pure lies. This, consequently, casts doubt on any information that is provided by this tool (at least, at this moment), if we follow the human logic that simpler things (such as finding the right article or paragraph in law) are easier done than complex things (such as giving an opinion on difficult legal issues). As can be seen from the chat, we don’t even know what ChatGPT’s true sources are and how it actually works when it tells you something that is not true (while still presenting it as a fact). 

Maybe some magic words like “as far as I know” or “prima facie” in the answers could have provided me with more empathy regarding my chatty friend. The total certainty with which the information is provided also gives further reasons for concern. What if I am a normal human being and don’t know the real answer, have forgotten or not noticed the disclaimer at the bottom of the chat (as it happens with the small letter texts), or don’t have any persistence to check the info? I may include the answers in my homework, essay, or even in my views on the issue at work—since, as you know, we are short of time and need everything done by yesterday. The path of least resistance is one of the most tempting. (And in the case of AI we should be aware of a thing inherent to humans called “anthropomorphizing”, i.e., attributing human form or personality to things not human, so we might trust something a bit more or more easily than we should.)

The reliability of the information provided by State institutions as well as lawyers has been one of the cornerstones of people’s belief in the justice system. Therefore, it could be concluded that either I had bad luck, or one should be very careful when introducing AI in state institutions. And such use should be limited only to cases where only information about facts is provided (with the possibility to see and check the resources) until the credibility of AI opinions could be reviewed and verified. At this moment you should believe the disclaimers of its creators and use AI resources with quite (legitimate) mistrust and treat it somewhat as a child that has done something wrong but will not admit it, no matter how long you interrogate them. And don’t take it for something it is not, even if it sounds like you should listen to it.**

May 3rd, 2023

[Reminder: Article 56(3) of the Directive 2014/24/EU: Where information or documentation to be submitted by economic operators is or appears to be incomplete or erroneous or where specific documents are missing, contracting authorities may, unless otherwise provided by the national law implementing this Directive, request the economic operators concerned to submit, supplement, clarify or complete the relevant information or documentation within an appropriate time limit, provided that such requests are made in full compliance with the principles of equal treatment and transparency.]

[...]

[… a quite lengthy discussion about the discretion of the contracting authority to ask for the information ...]

[The author did not get into a discussion about the opinion of ChatGPT on this issue, because that was not the aim of the chat, however, this could be done in some other conversation.]

[…]

[… long explanation ...]

[...]

May 4th, 2023

[Editor’s note: apologies that some of the screenshots appear in a small font…].

[…]

Both links that the ChatGPT gave are correct:

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32014L0024

https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32014L0024&from=EN

However, both citations are wrong.

May 17th, 2023

[As you will see, ChatGPT doesn’t give links anymore, so it could have learned a bit within these few weeks].

[Editor’s note: apologies again that the remainder of the screenshots appear in a small font…].

[...]

[Not to be continued.]

DŽEINA GAILE

My name is Džeina Gaile and I am a doctoral student at the University of Latvia. My research focuses on clarification of a submitted tender, but I am interested in many aspects of public procurement. Therefore, I am supplementing my knowledge as often as I can and have a Master of Laws in Public Procurement Law and Policy with Distinction from the University of Nottingham. I also have been practicing procurement and am working as a lawyer for a contracting authority. In a few words, a bit of a “procurement geek”. In my free time, I enjoy walks with my dog, concerts, and social dancing.

________________

** This article was reviewed by Grammarly. Still, I hope it will not tell anything to the ChatGPT… [Editor’s note – the draft was then further reviewed by a human, yours truly].

[1] To be fair, I must stress that at the bottom of the chat page, there is a disclaimer: “Free Research Preview. ChatGPT may produce inaccurate information about people, places, or facts. ChatGPT May 3 Version” or “Free Research Preview. ChatGPT may produce inaccurate information about people, places, or facts. ChatGPT May 12 Version” later. And, when you join the tool, there are several announcements that this is a work in progress.

CJEU confirms strict approach against acceptance of incomplete submissions in public procurement (C-42/13)

In its Judgment in Cartiera dell’Adda and Cartiera di Cologno, C-42/13, EU:C:2014:2345, the Court of Justice of the European Union (CJEU) has confirmed its strict approach against the acceptance of incomplete submissions in public procurement procedures, at least where the tender documentation imposes the (automatic, non-discretionary) rejection of non-compliant or non-fully compliant submissions. This Judgment is fully in line with its previous Judgment in Manova, C-336/12, EU:C:2013:647 and, consequently, Cartiera dell'Adda does not advance EU procurement law in a significant manner. However, given its brevity and the harshness of the solution adopted by the CJEU (at least if analysed in functional or practical terms), I think that the case deserves some further consideration.

 

In short, the CJEU has confirmed that the exclusion of a tenderer that omitted a declaration is acceptable under EU law, even if the declaration was not necessary or, in any case, the facts concerned by the declaration would not trigger exclusion. In an extreme reading, the case confirms the legality under EU procurement law of an absolute obligation to reject submissions that are 'merely' affected by strictly formal shortcomings [for discussion, see A Sanchez Graells, 'Rejection of Abnormally Low and Non-Compliant Tenders in EU Public Procurement: A Comparative View on Selected Jurisdictions', in M Comba & S Treumer (eds), Award of Contracts in EU Procurement, vol. 5 European Procurement Law Series (Copenhagen, DJØF, 2013) 289]. As mentioned, this is an area of very significant practical relevance and there is a need to properly understand the conditions under which such a stringent case law is being developed.

 

In that regard, it is important to highlight that, as the CJEU emphasises, the grounds for exclusion of tenderers expressly disclosed by the contracting authority in the tender documentation included situations where 

one of the documents and/or one of the sworn statements the purpose of which is to demonstrate that both the general and special requirements have been complied with is incomplete or irregular, except where any irregularity is of a purely formal nature and may be remedied but is not decisive for the assessment of the tender (C-42/13, para 10).

 

After juggling with the other (rather complicated) circumstances of the case, the CJEU clarifies the relevant legal dispute as a question of the

compatibility with European Union law of the fact that it is impossible for ... a tenderer, after submitting his bid, to remedy the fact that he failed to annex ... a statement to his bid [confirming that its technical director was not affected by mandatory exclusion grounds related to criinal records], whether by submitting such a statement to the contracting authority directly or by showing that the person concerned was identified as the technical director in error (C-42/13, para 40).

 

At this point, the CJEU reiterates its position in Manova, and stresses that "the contracting authority must comply strictly with the criteria which it has itself established, so that it is required to exclude from the contract an economic operator who has failed to provide a document or information which he was required to produce under the terms laid down in the contract documentation, on pain of exclusion" (para 42, emphasis added). The CJEU further reiterates that this strict requirement derives from the principles of equal treatment and transparency (paras 43-49).

 

It is also important to stress that the CJEU clearly indicates that "in so far as the contracting authority takes the view that that omission is not a purely formal irregularity, it cannot allow the tenderer subsequently to remedy the omission in any way after the expiry of the deadline for submitting bids" (para 45), which seems to create significant space for the flexibilisation of ommissions that can be remedied, particularly before the expiry of the deadline for submission of tenderers--but equally of omissions that can be reduced to purely formal irregularities.

 

More generally, in my view, the Manova - Cartiera dell'Adda line of case law offers some interesting opportunities for Member States and contracting authorities to avoid such impractical situations, provided they restrict themselves to the general rules under the new art 56(3)  of Directive 2014/24. This provision indeed stresses that

Where information or documentation to be submitted by economic operators is or appears to be incomplete or erroneous or where specific documents are missing, contracting authorities may, unless otherwise provided by the national law implementing this Directive [or excluded by themselves in the specific tender documents, as per Manova and Cartiera dell'Adda], request the economic operators concerned to submit, supplement, clarify or complete the relevant information or documentation within an appropriate time limit, provided that such requests are made in full compliance with the principles of equal treatment and transparency.

Consequently, any criticism against the Manova - Cartiera dell'Adda line of case law seems rather unjustified in view of the fact that the origin of any potential obligation to automatically and non-discretionally exclude non-compliant or incomplete submissions does not have an origin on the EU rules or their general principles (now in art 18(1) of dir 2014/24), but on excessively stringent domestic rules or, even worse, in the specific conditions imposed by the contracting authority in its own tender documentation. In the absence of those restrictions, EU law as interpreted in Manova - Cartiera dell'Adda does not constrain the proper exercise of administrative discretion in this area. Hence, contracting authorities (and Member States) will be clever not to put a noose around their own necks. In the end, the only thing the CJEU has done in Manova - Cartiera dell'Adda is to pull their legs...