February 9, 2002

Community commentary: Encouraging open code in public procurement policies

Author: JT Smith

- By Mikael Pawlo -

"This is not an easy time for humorists because the government is far funnier than we are." Art Buchwald was full of wit in his famous speech of 1987. When it comes to public procurement of software, it is easier to keep yourself from laughing, especially if you think about open code issues.

Why should anyone be interested in open code for public agencies? A substantial part of the public procurement in all countries comes from the purchase of computer programs and IT solutions. In most countries, public bodies, together with the government, are the most
important purchasers of computer programs and IT solutions.

The public procurement is policed by a set of rules in most countries. As a
general idea, however differently implemented in different jurisdictions,
the rules are supposed to make the procurement proceedings transparent and
open to the public scrutiny. This will --at least in theory-- ensure that
there is competition, thus providing a guarantee of an effective
allocation --both in terms of quality and cost-- of public money.

The government could regulate public procurement through legislation or
through policy. It is very common to have a legal framework defining the
basic rules applying to all public procurement. The law would then define
the transparent procedure. The purchasing public body could in most cases
develop the specific guidelines for public procurement of computer programs. The governing body in question could require that all code developed
in its applications should be open and free (but not gratis). It could
state that all code should be released under the GNU GPL. In a lot
of cases I am familiar with, a completely different strategy is applied. In
its specs, the public body states that "all computer programs should be
based on Microsoft NT" or that "any bids should be submitted in Microsoft
Word 7.0-format" or "the Internet application should use the Microsoft
Internet Information Server." You get the idea.

If you think open code is a good thing, like GNU GPL-licensed Free Software or other
computer programs released under Open Source-compatible licenses, you might want to advocate that all computer programs subject to
public procurement should be Free Software or Open Source. But public procurement often is more complicated than that. If one government -- most likely in a developing country due to price constraints -- chooses to ban all proprietary solutions in public
procurement of computer programs, it risks facing a Microsoft divide. Civil
servants need to be able to communicate using de facto office standards
such as Microsoft PowerPoint, Microsoft Word, and Microsoft Excel.
If the public body has a hard -- if not impossible -- time communicating and
exchanging documents with the outer world and the public at large, it will
soon become inefficient, and that is not why you pay taxes for public
procurement.

Still, the above scenario does not mean that governments need to push
proprietary solutions. First, I want to make one thing clear: In my view,
governments and public bodies should not push "gratis," "free," "open" or
"proprietary" solutions over any of the other options. That could severely damage the incentives for software developers and the national market for IT at large. That much
said, governments and public bodies still could improve the competition and
make open code much more of an option in public procurement.

The government should always choose the best computer program and IT
solution at any given period of time. The term, "best computer program," is ambiguous,
but I think it should be defined by a combination of price, performance,
security, license terms, time of delivery, and quality. Sometimes, the result
of such an evaluation will be a computer program based on open code.
Sometimes, proprietary solutions will be the best choice. Public money
should not be used to support inefficient alternatives. However, currently
inefficient alternatives can win in public procurement. Remember that
public procurement policy usually is made to provide a guarantee of an
effective allocation -- both in terms of quality and cost -- of public money.
What if the public body designs its requirements in a way that rules out all Free
Software and Open Source alternatives already at the drawing table? This is
what I have seen happen on several occasions.

It is time that public bodies and governments look over their public
procurement policies. The policy should guarantee competition, not stifle
it. An example of one way to achieve this is when buying desktop products,
to define the standard applications the product should be able to
interact with, rather than designing the offer in a way that fits only one
given computer program or operating system at a time.

May the best computer program and license win! Then the government will
make us as happy in 2002 as Art Buchwald did in 1987.

Mikael Pawlo is an associate of the Swedish law firm Advokatfirman Lindahl.
On nights and weekends he works as an editor for the leading Swedish Open
Source and Free Software publication Gnuheter, which he co-founded with
Patrik Wallstrom.

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