software in the procurement process

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Valerie Cannon
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1 Manual on open standards and open source software in the procurement process Bart Knubben, consultant on Open Source Software Open Source as an integrated part of the Software Strategy

Open Source Software bart.knubben@ictu.nl, +31.70.

2 Overview Background OSOSS and Dutch policy Background manual Principles within procurement regulation Open source software and procurement Open standards and procurement

3 Programme OSOSS Past ( ): OSOSS = informing Dutch government organisations on open standards and open source software : OSOSS = open source software integrated within the ICT-strategy of governments (ICTU) and further: OVOS = structural attention for open standards (GBO.OVERHEID) Maintaining the Dutch E- Government Developing the Dutch E- Government

the ICT-strategy of governments (ICTU) 2006- and further: OVOS = structural attention for

4 Dutch policy on OS & OSS Widely supported motion in the Parliament (end of 2002) Minister of the Interior and Minister of Economy: - Open standards: * Apply in case new software is built * Open up government standards * Create new open standards on a European level - Open source software: * Equal chance ( freedom of choice ) * Start up pilots * Promote the reuse of government software

up government standards * Create new open standards on a European level - Open source software:

5 Policy and procurement law? OSOSS received many questions from government organisations; Questions from the parliament to the Minister (2003). What is possible within the boundaries of Dutch and European procurement regulations? ---> Manual on open standards and open source software in the procurement process developed by law firm Duthler on request of OSOSS

6 Pivotal question To what extent may a government organisation calling for tender state in the tender documents that: Open source solution is a requirement; Open source solution is a preference / wish; A specific open standard is required; A specific open standard is a preference / wish? Requirement = must Preference = should/could

source solution is a preference / wish; A specific open standard is required; A

7 Principles of procurement law Transparency Objectivity Justification of choices Non-discriminatory

8 When does procurement law apply? Tender by a government organisation; Exceeding franchise value / limit: For supplies and services > EUR ,= So, in case open source software per se is acquired ( downloaded ) and implemented by the organisation itself (without a service or support contract) procurement law does not seem to apply. The manual regards software solutions, i.e. software with a service and support contract.

162.000,= So, in case open source software per se is acquired ( downloaded ) and implemented by the

9 Starting point of the manual What is open source software? What is an open standard? ---> Definitions?

10 Open source definition (OSI) Used for approving licenses ( 1. Free distribution 2. Availability of the source code 3. Permitting adaptation (derive works) 4. Integrity of the author's source code 5. No discrimination against persons or groups 6. No discrimination against fields of endeavour 7. Distribution of license 8. License must not be specific to a product 9. License must not restrict other software 10. License must be technology-neutral

No discrimination against persons or groups 6. No discrimination against fields of endeavour 7.

Definition for open standards 1. Maintained by a not-for-profit organisation, open decision-making procedure; 2. Publication of specification; 3.

11 Definition for open standards 1. Maintained by a not-for-profit organisation, open decision-making procedure; 2. Publication of specification; 3. Intellectual property on a royalty free basis; 4. No constraints on the re-use of the standard. Source: European Interoperability Framework developed by IDABC. Dutch catalogue of open standards: CANOS,

Publication of specification; 3. Intellectual property on a royalty free basis; 4.

12 Open source or open standards as a requirement or preference Open source software or open standards may be required when all specific features/elements are of importance; Open source software or open standards may be preferred (wish) when some specific features/elements are of importance;

features/elements are of importance; Open source software or open

13 How to provide good justification? Substantiate the need per element of the definition in (internal) tender documents; Make use of existing regulations.

14 Open source example VIR-BI (Dutch Regulation on Security of Special Government Information) states that modifications to hardware, software or procedures must be checkable. This can be used to justify the requirement of feature 2. Availability of the source A government organisation foresees that certain, additional functionality has to be created. 3. Permitting adaptation (derive works) is a crucial element for this organisation.

This can be used to justify the requirement of feature 2.

15 Open standard example The Dutch law on archiving explicitly requires that government organisations use a.o. XML. This can be used to require XML which is considered to be an open standard. The European directive on the re-use of public sector information states: To facilitate re-use, public sector bodies should make their own documents available in a format which, as far as possible and appropriate, is not dependent on the use of specific software.

The European directive on the re-use of public sector information states: To facilitate re-use, public sector

16 Is referring to a specific open standard (i.e ODF ) allowed? Yes, if it is a European norm, a European technical approval or common technical specification. This means bottomline: standards from ISO, CEN and NEN, or standards prescribed by law. Oherwise No, except when it is not possible to indicate the required technical specifications in any other way than referring to the specific open standard.

This means bottomline: standards from ISO, CEN and NEN, or standards prescribed by law.

17 ...or the equivalent thereof. It is recommended to use the phrase...or the equivalent thereof. This follows from the nondiscriminatory principle. Example: The provided solution must be available under an open source license or the equivalent thereof. This is not free of obligation. The government organisation has to demonstrate afterwards that there were no equivalent tenders that met the specifications.

thereof. This is not free of obligation.

18 Suggestions for future steps Collect and publish best and worst practices; Create example tender documents, i.e. procurement of a CMS ; Address this on a European level, because procurement law is mainly of European origin.

e. procurement of a CMS ; Address this on a European

19 Questions and discussion?

Guideline on public procurement of Open Source Software

Guideline on public procurement of Open Source Software March 2010 (revised June 2010) Guideline on Public Procurement of Open Source Software P. 1 This guideline was prepared for the IDABC Programme by: