European Commission publishes guidelines on the procurement of FOSS

The Open Source Repository and Observatory (OSOR), a new site sponsored by the European Commission to foster the exchange of FOSS related information and software among European public administrations, recently published guidelines">guidelines on the procurement of open source software. Public administrations in Europe have to follow public tender procedures and the new guidelines give practical and legal advice on how open source software and related services can be incorporated into the procurement process.

Rishab Ghosh, who presented the guidelines at the Open Source World Conference in Malaga, argued that the procurement guidelines were needed because of two reasons. First, they studied recent tenders and found that many explicitly mentioned proprietary applications. 16% of 3615 software tenders explicitly asked for products from top 10 software vendors, such as Microsoft, SAP and Oracle. This practice may be illegal because public tenders generally have to describe functional requirements in a general way instead of specifying specific products. Second, many public administrations don't have any experience with the procurement of FOSS. In fact, they often don't know whether or under which circumstances they are allowed to adopt and ask for FOSS solutions. The guidelines are specifically designed in order to clearly and simply explain how public administrations can acquire open source and they don't assume that a country has adopted a specific policy regarding open source.

The guidelines include a long section about open standards, open source and how they relate. Both open standards and open source align very well with the needs of public administrations who have an "obligation to support interoperability, transparency and flexibility, as well as economical use of public funds". The guidelines argue that the exit cost, i.e. the cost incurred in moving to another IT system, is also an important consideration but one that is often neglected. The adoption of a proprietary solution without open standards may limit the future choice, thereby increasing the long-time costs and giving the proprietary vendor an unfair advantage in future tenders.

The procurement guidelines describe two ways of acquiring FOSS: it is possible to go the usual route of publishing a tender for the supply of software (possibly with related services). However, in the case of FOSS, it is also possible to download the software directly from the Internet. This is possible because the software is not only free of charge but comes with no contractual obligations. If there were any obligations involved with the download (such as fees, the agreement to an EULA or the requirement to purchase services in the future), software download is not an allowed method. What I like about the guidelines is that they explicitly say that downloading software has to be part of the formal procurement process. You have to think about your requirements, look at various alternatives, and so on, and not just blindly download something from the Internet.

When it comes to the procurement of FOSS, the guidelines don't suggest that tenders should explicitly ask for FOSS. Instead, they should describe the functional requirements of the software as well as certain properties. For example, a tender could specify that the public administration as well as third parties must have the right to study, distribute and modify the software. In a sense, the guidelines suggest that tenders should include the principles of the Free Software Definition along with justifications for these requirements.

Personally, I think there is a great need for these procurement guidelines. There are many public administrations that don't know how to acquire FOSS and these guidelines offer clear advice. Furthermore, I find the guidelines very balanced. They don't recommend that you should always ask for FOSS but incorporate FOSS principles into tenders where it makes sense. It remains to be seen whether the procurement guidelines will have an impact on the FOSS adoption in Europe, but I surely hope so.

(Originally published on FOSSBazaar)