Article 10 — Procurement documents
In brief
This Article sets out the minimum content of the procurement documents for an R&D procurement. Public buyers must specify a defined list of elements, ranging from the R&D need and estimated value to access conditions, exclusion and selection criteria, award criteria, intellectual property arrangements, payment provisions and applicable security obligations. It also frames how negotiations may be conducted, how the estimated value is calculated, and how the need should be expressed.
Key points
- The documents must cover a comprehensive checklist, including the R&D need, estimated value, market consultation outcome, access conditions, exclusion and selection criteria, financial guarantees, minimum requirements, innovation-related award criteria and weightings.
- Intellectual property and ownership of results, contract modification and value engineering, multiple sourcing, phasing, key performance indicators, payments, confidentiality, data protection, termination and security obligations must all be addressed, cross-referring to the relevant Articles.
- Essential conditions of the contract are not open to negotiation and the subject matter may not be substantially altered; negotiations may cover other characteristics that are not minimum requirements.
- The R&D need should be framed as a problem to be solved, using functional or performance requirements where possible and without unduly restricting solutions.
- The estimated value is calculated net of VAT on the maximum estimated value of the R&D services, including relevant costs and, where exclusive IP ownership is sought, the value of those rights; buyer contributions are excluded.
What it means in practice
Contracting authorities receive a detailed template for what their tender documentation must contain, reducing ambiguity but raising the drafting burden at the outset of each procedure. Innovative firms, start-ups and SMEs should find the rights, obligations and evaluation approach set out up front, making it easier to decide whether to bid and on what basis. Where results may serve security or public safety interests, buyers may reserve a priority right to purchase a predefined volume or value of resulting products, services or works, provided this is written into the contract.
Official text — Article 10 (COM(2026) 567)
1. Public buyers shall specify in the pr ocurement documents at least the following
elements:
(a) the R&D procurement need in accordance with paragraph 4;
(b) the estimated value of the R&D procurement established in accordance with
the methodology laid down in paragraph 5, and any cash or in -kind
contributions that public buyers intend or may make available to contractors
during the R&D procurement;
(c) the information on the conduct and the outcome of the market consultation
made available in accordance with Article 9(7) and Article 9(9);
(d) the conditions for access to the R&D procurement, in accordance with the
obligations laid down in Articles 11;
(e) the applicable exclusion grounds, selection criteria and financial guarantees in
accordance with the obligations laid down in Articles 13, 14, 15 and 16;
(f) the minimum requirements to be met by all tenderers;
(g) the innovation-related award criteria, including their respective weightings, to
be applied in the evaluation of tenders, in accordance with the obligations laid
down in Article 17;
(h) the division of the rights and obligations related to intellectual property rights
and the ownership of results, in accordance with the obligations laid down in
Article 19;
(i) the provisions for contract modifications and, where applicable, for value
engineering, in accordance with the obligations laid down in Articles 20 to 21;
(j) the provisions for the call for tenders, including applicable provisions on
negotiation laid down in paragraphs 2 to 3 of this Article and the minimum
number of contractors that are to be selected where lots and multiple sourcing
are used, in accordance with the provisions on the use for multiple sourcing
laid down in Article 22 and with the provisions for the launch of the call for
tenders laid down in Article 23;
(k) where applicable, the number of R&D phases over which the R&D activities
are split and whether the public buyer includes the option to make use of the
possibility to invite economic operators that have not participated in previous
phases of the R &D procurement to participate in later phases of the R&D
procurement, in accordance with the obligations for competitive development
in phases laid down in Article 24;
(l) whether and how the public buyer intends to obtain the ownership of results of
the R&D procurement , including any prototypes or first products, services or
works developed as a part of the R&D procurement;
(m) the innovation -related key performance indicators defined, to the maximum
extent practicable as performance requirements, and the method for ass essing
them, to monitor the contract performance throughout the R&D procurement,
in accordance with the obligations laid down in Article 24(5);
(n) the provisions for payments, in accordance with the obligations laid down in
Article 25;
(o) the applicable confidentiality and data protection obligations, in accordance
with the obligations laid down in Article 26;
(p) where applicable, any requirements for contractors to contribute to
standardisation, certification or publication of results, includ ing by making
them available as open data or open source, without prejudice to confidentiality
and data protection obligations referred to in Article 26 and to the obligations
in respect of the protection of intellectual property rights laid down in Articl e
19;
(q) the provisions on the termination of R&D procurement contracts, in
accordance with the obligations laid down in Articles 27 and 29;
(r) the applicable security and public safety obligations, in accordance with the
obligations laid down in Article 28, 29 and 30;
(s) where applicable, the provisions for conducting the procedure as a joint R&D
procurement, in accordance with the obligations laid down in Article 31;
(t) that the provisions of this Regulation apply to the R&D procurement.
2. Public buy ers shall indicate in the procurement documents that the essential
conditions of the R&D procurement contract are not subject to negotiation. Public
buyers shall not substantially alter the subject matter of the R&D procurement
contract as a result of the negotiations. Negotiations may concern all characteristics
of the research and development activities and of the intended results to be developed
for the public buyer during those research and development activities as part of the
R&D procurement, including quality, quantities as well as social, environmental and
innovative aspects, may be subject to negotiation, provided that those characteristics
do not constitute minimum requirements.
3. Public buyers shall, in the procurement documents, indicate any specific elements
not listed in paragraph 1 for which they invite tenderers to indicate, in their tender,
their preferred approach, leaving the finalisation of those elements subject to
negotiation.
4. Public buyers shall draft the procurement documents for the R&D procurement
taking into account the findings of the market consultation and any market research
that the public buyer conducted on the state of the art of any ongoing research and
development and product planning roadmaps of economic operators . Public buyers
shall formulate the R&D procurement need referred to paragraph 1, point (a), of this
Article as a problem that needs to be solved without unduly restricting possible
approaches t o solve the problem. Public buyers shall give preference to use
functional requirements or performance requirements in accordance with Article 18
to formulate the requirements for addressing the R&D procurement need. The
information provided in the procure ment documents shall be sufficiently precise to
enable economic operators to identify the nature and scope of the R&D procurement
and to decide whether to submit a tender.
5. Public buyers shall calculate the estimated value of the R&D procurement procedu re
based on the maximum estimated value net of VAT of the research and development
services to be provided in the context of the R&D procurement contract or contracts
that are expected to be awarded as part of the R&D procurement procedure,
including any l ots, options or renewals. The calculation of the estimated value shall
take into account the estimated value of all types of research and development related
expenses, irrespective of their share in the total estimated value, including the value
of labour, materials, components and tools that are needed to deliver the expected
results, including, where relevant, research and development that was performed
before the start of the R&D procurement procedure. Where public buyers intend to
obtain the exclusive o wnership of intellectual property rights to results generated by
contractors, the estimated value shall include the estimated value of those intellectual
property rights. The estimated value shall not include any cash or in -kind
contributions that public b uyers intend or may make available to contractors during
the R&D procurement.
6. As regards products, services or works that result from the research and development
services procured and that are needed to safeguard security and public safety
interests of the Union or one or several of its Member States within the meaning of
Article 28(2), including to avoid security of supply issues, public buyers may, in the
procurement documents, specify that public buyers have a priority right to purchase a
predefined volume or value of those products , services or works before these are
offered to other potential buyers. In such case, public buyers shall set out the priority
right to purchase as a contractual obligation in the R&D procurement contract.
Source: European Commission, proposal for a Regulation establishing the European Innovation Act, COM(2026) 567 final, 9 September 2026. Read the official proposal (PDF). Text may change during the legislative process.
Anthony Bochon’s analysis
This is, in effect, the architecture of the whole procedure compressed into one article, and the twenty-point checklist in paragraph 1 is a drafting aid as much as a legal obligation. The provision I regard as most consequential in practice is paragraph 4: the instruction to frame the need as a problem to be solved, with a stated preference for functional and performance requirements, is what keeps the door open to genuinely novel solutions rather than to a pre-selected technology, and it echoes the logic already familiar from the general directives while pushing it further.
From a practitioner’s standpoint the estimated-value methodology in paragraph 5 deserves careful attention, because requiring the value of intellectual property rights to be built into the estimate — where exclusive ownership is sought — has direct consequences for thresholds, guarantees and later contract modifications. The priority right to purchase in paragraph 6 is a quietly powerful tool for security of supply, and I would expect its contractual expression to be a recurring point of negotiation; my advice to any addressee is to treat this article as the master index and to reconcile each cross-reference before the documents are finalised.