Workshop: Legal aspects of free and open source software
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2. METHODOLOGY
This paper reports on a selection, analysis and comparison of different national and local
initiatives that have been implemented in order to improve procurement practices and to
invite administrations to better consider FOSS in software procurements.
This paper is far from being exhaustive and aims exclusively at illustrating some of the
many approaches adopted at different administrative levels in order to give a first insight
into the problems confronted and/or the results achieved. The selection has also been
made considering the direct accessibility of information and the purposes and limits of this
briefing paper.
In order to facilitate the observation of the different initiatives, some comparison points
have been identified.
The administrative level (national, regional or local) where the decision has been taken and
implemented is the first element of comparison.
The initiatives are classified into two categories, depending on their nature: legislation (law
or decree) or policy (programme, action or any other initiative from an executive body).
For each case, the relevant legal background has been globally analysed. The paper
describes the fixed objectives and how FOSS is being dealt with in such a legal framework
to reach these objectives.
Three types (or levels) of objectives are identified and serve also as a general comparison
point: raising awareness on FOSS, ensuring non-discriminatory treatment, and actively
encouraging or preferring FOSS procurement. If this third objective is upheld, and where
possible, the question whether or not the initiative addresses the issue of the selection and
assessment of awarding criteria is briefly tackled.
Where possible, information on the reception and effectiveness of the analysed solutions
has also been gathered and assessed with regard to the following questions, where
relevant: how effective different solutions have proven to be in practice in enabling FOSS
procurement, how they have been applied by administrations and/or the courts (some of
these initiatives have been challenged before court), and what types of licences are
involved.
One must finally note that, although open standards and FOSS are close concepts that are
usually addressed jointly to elaborate effective procurement strategies, this briefing paper
only focuses on the procurement of FOSS.
3. EXPERIENCES
3.1 Netherlands:
NOIV
action plan (2007-2011)
3.1.1 General
presentation
The NOIV programme was an action plan
112
that aimed at accelerating the use of open
standards and open source software
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within the national government, subsidiary
government bodies and the public and semi-public sector.
It had been adopted by the Dutch Government and had been implemented during the
governmental session (from 2007 to 2011) by a subdivision of ICTU (ICT-
Uitvoeringsorganisatie), an organisation established by the Ministry of the Interior and
Kingdom Relations, and the Association of Municipalities.
The main objectives of this action plan were:
112
Available in English at
https://www.ictu.nl/archief/noiv.nl/files/2009/12/Action_plan_english.pdf
.
113
“Open source software” is defined by reference to the OSI definition. See “De stand van zaken van het open
source software beleid van de Rijksoverheid”, available at
http://www.ictu.nl/archief/noiv.nl/documenten-en-
publicaties/doc/het-open-source-beleid-van-de-rijksoverheid/index.html#more-7119
.
Policy Department C: Citizens' Rights and Constitutional Affairs
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to increase interoperability by accelerating the use of open standards,
to reduce supplier-dependence through a faster introduction of open source software
and open standards, and
to promote a level playing field in the software market, by promoting innovation and
the economy by forceful stimulation of the use of open source software, and by
giving preference to open source software during the process of IT acquisition.
Accordingly, three procurement principles were upheld by NOIV:
Open source is not mandatory, but its use should be strongly encouraged,
Open source software should be preferred if it is equally suitable, and
Providers of open source software should have the same opportunities as providers
of closed source software.
In order to foster the use of FOSS by administrations at any level, some action lines had to
be followed. Some of them can be summarised as follows:
A programme office within ICTU had been set up to support actively the action lines.
The office provided guidance, result-oriented advices and customised practical
support to the administrations. It also conducted measurements to monitor the
progress of the actions. A ranking has been maintained and prizes were offered
annually for the Most Open Public Organisation.
At national level, meetings with businesses, suppliers and various government
target groups were organised to explain the plans and to reach practical agreements
for their implementation.
Any administration had to develop an implementation strategy for tendering,
purchasing and using open source software. A fixed deadline (January 2009) was
adopted for the ministries.
The Government was also to encourage the use of open source software in a
European context.
The Government also intended to investigate to what extent all software under its
control or developed on its order could in principle be released under an open source
software licence. To that end, it showed specific marks of interest towards the
European Union Public Licence (EUPL). The Government realised that such objective
could mean that it would have to make tenders for development of software
conditional on its obtaining of the intellectual property for the software developed.
NOIV was therefore a general framework set up at national level to foster the development
and adoption of pro-FOSS procurement strategies in any Dutch administration.
NOIV clearly stated that the procurement rules are not applicable when freely downloading
FOSS. It noted, however, that administrations should select downloadable FOSS with care
and according to strict procedures. Notwithstanding this, the procurement of services
around such selected software (such as deployment, maintenance, customisation or
support services) must be done conforming to the classical rules, bearing in mind that
“open source software is provider-independent”
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.
Amongst the documents issued by the NOIV, a guideline has been published that provides
examples of award criteria to be added in the calls for tender
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and which can be
summarised as follows:
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« Download open source software », available at
https://www.ictu.nl/archief/wiki.noiv.nl/xwiki/bin/view/NOiV/Downloaden%2Bvan%2BOpen%2BSource%2Bsoftwa
re.html
.
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“Modelteksten voor open voorkeur in een (Europese) aanbesteding”, NOIV – November 2010, available at
http://www.ictu.nl/archief/noiv.nl/files/2010/11/NOiV_Modelteksten_voor_open_voorkeur_in_een_aanbesteding.p
df
.
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