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  4. <title>Freedom to compete: Fixing software procurement</title>
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  8. <h1>Freedom to compete: Fixing software procurement</h1>
  9. <p>On Tuesday December 7, we issued a <a href="/news/2010/news-20101207-01.en.html">press release</a> about a contract
  10. awarded by the European Commission, under which the EC and other
  11. European institutions will spend up to 189 million Euro on proprietary
  12. software and related services. We are of the view that in issuing this
  13. contract, the EC has once more failed to live up to its own guidelines
  14. and recommendations about the use of Free Software and Open Standards,
  15. and has missed an opportunity to open up software procurement to
  16. competition from Free Software companies.</p>
  17. <p>The contract in question, called SACHA II, is the responsibility of
  18. the EC's Directorate-General for Informatics (DIGIT for short). A few
  19. days after our press release, we received a written reply from Mr
  20. Francisco García Moran, the head of DIGIT.</p>
  21. <p>We would like to thank Mr García Moran for replying to our concerns in
  22. detail. He requested that we publish his reply, which we are glad to
  23. do. <a href="/activities/policy/eu/ECletter.20101210.en.pdf">Here</a> is the original letter we received.</p>
  24. <h2>The EC's reply does nothing to allay our concerns</h2>
  25. <p>Unfortunately, the EC's reply neither shows our stance to be
  26. wrong, nor does it allay our criticism. This is why we would like to
  27. return some questions to Mr García Moran. We appreciate the
  28. opportunity to enter into a detailed discussion of the EC's software
  29. strategy and its software procurement practices, and hope for a
  30. constructive dialogue.</p>
  31. <p>
  32. We note that DIGIT's reply does not answer our criticism regarding
  33. the mismatch between the Commission's own guidelines and
  34. recommendations (as referred to in the <a href="">press release</a>), and the
  35. massive acquisition of licenses for proprietary software.</p>
  36. <p>
  37. This criticism applies to both the recent SACHA II contract, as
  38. well as the <a href=";tabId=1">framework contract with Fujitsu-Siemens</a> for the
  39. provision of Microsoft products concluded on January 10, 2008.</p>
  40. <p>
  41. We would like to see the European Commission back up its public
  42. rhetoric regarding Free Software, Open Standards and interoperability
  43. with its own actions. This would require DIGIT to rethink some
  44. procurement practices in order to open up public software procurement
  45. to competition.</p>
  46. <div class="clear">
  47. <h3 class="grid-40 left">
  48. EC letter from Dec 10th, 2010 </h3>
  49. <h3 class="grid-60 right">FSFE's comments
  50. </h3>
  51. </div>
  52. <div class="clear">
  53. <p class="grid-40 left">
  54. (1) The press release does not mention the fact that the contract you refer to is the
  55. result of an open call for tenders awarded on the basis of the highest quality/price
  56. ratio. This is a major omission in a press release which, on the one hand, says that
  57. the Commission should avoid discrimination and open up public procurement to
  58. competition, and, on the other, accuses the Commission of not doing enough to
  59. keep its costs low and to spend the taxpayers' money in the best possible way.
  60. </p>
  61. <p class="grid-60 right">
  62. It is only natural to assume that a responsible public administration
  63. such as the EC would not spend such sums without an open call for
  64. tender. We did not consider it necessary to highlight something that
  65. should be self-evident.</p>
  66. <p class="grid-60 right">
  67. Our criticism is directed at the way in which this call for tender
  68. was designed, and at the underlying lack of a coordinated effort
  69. to make greater use of Free Software and Open Standards on the
  70. part of DIGIT.</p>
  71. </div>
  72. <div class="clear even">
  73. <p class="grid-40 left even">
  74. (2) The first sentence of your press release ("77ze Commission will spend EUR 189
  75. million on proprietary software over the next six years'") is totally misleading for
  76. the following reasons:
  77. <br /><br /><!--i know that's ugly but the only way to fix quickly i could find-->
  78. (a) Awarded amount. The sentence implies that the Commission has awarded
  79. the total amount of EUR 189 million for itself, without mentioning the fact
  80. that the contract in question also covers the needs of 36 other EU
  81. Institutions, Agencies and other Bodies. The amount awarded for the
  82. Commission's own needs is EUR 67.4 million (see paragraph VI.2 of the
  83. contract notice).
  84. </p>
  85. <p class="grid-60 right even">
  86. We understand that the institutions for which software and services
  87. will be provided are funded by European Union budgets, and that they
  88. will obtain software and services through the SACHA II contract. The
  89. contract is signed by the European Commission, and the money will come
  90. out of the taxpayers' purse.
  91. </p>
  92. </div>
  93. <div class="clear">
  94. <p class="grid-40 left">
  95. (b) Commitment to spend. The Commission has not committed itself to spend
  96. the whole of this amount. In the case of a framework contract (or
  97. "framework agreement") such as this one, the amount mentioned in the
  98. award notice corresponds to the maximum budgetary ceiling which can be
  99. used over the entire duration of the contract (including all possible
  100. renewals). In order to avoid new administrative procedures, such
  101. maximum budgetary ceilings contain provisions for various contingencies
  102. which could arise during or at the end of the contract.</p>
  103. <p class="grid-60 right">
  104. While this is a maximum budget, it is not at all uncommon for public
  105. administrations to reach such ceilings in their procurement contracts.
  106. </p>
  107. <p class="grid-60 right">
  108. In order to provide orientation to the concerned public, would DIGIT
  109. be able to provide an indication of the percentage of the total final
  110. value which has been spent under the Commission's current contract
  111. with Fujitsu (2008/S 53-071324) to provide Microsoft software products
  112. and licenses?</p>
  113. </div>
  114. <div class="clear even">
  115. <p class="grid-40 left even">
  116. (c) Duration. The duration of the contract in question for acquisitions is two
  117. years, which may (but do not have to) be renewed up to two times for a
  118. period of one year each. The total duration is therefore four (not six) years.
  119. The two additional years only cover maintenance of already acquired
  120. licences.</p>
  121. <p class="grid-60 right even">
  122. It follows that the total duration of the contract is six years,
  123. during which EUR 189 million in public funds may be spent.</p>
  124. <p class="grid-60 right even">
  125. Is the EC going to change its approach to software procurement after
  126. the initial two years, so that European Free Software SMEs will have
  127. an easier time bidding for contracts with the European institutions?
  128. If that is the case, we will be very glad to have been proved wrong
  129. here. If not, our criticism stands.</p>
  130. </div>
  131. <div class="clear">
  132. <p class="grid-40 left">(d) Type of software covered. Contrary to your statement, the contract in
  133. question does not only cover the acquisition of proprietary software, but
  134. also of open source software (OSS) and of OSS-related services, such as
  135. high-level support of OSS products, for example from Red Hat, Atlassian,
  136. Balsamiq Studios, Adaptavist and others.
  137. </p>
  138. <p class="grid-60 right">
  139. We have made no such statement. FSFE's press release explicitly
  140. states that the institutions covered will "acquire a wide range of
  141. mostly proprietary software".</p>
  142. <p class="grid-60 right">
  143. Furthermore there seems to be some confusion on DIGIT's part regarding
  144. what, exactly, is Free Software. Most of Red Hat's products indeed
  145. fulfil the <a href="">Free Software definition</a>. Atlassian's products are
  146. <a href="">distributed under proprietary licenses</a>, as are <a href="">those
  147. by Balsamiq</a>. FSFE will
  148. be honoured to assist DIGIT in closing any possible gaps that may
  149. exist in the understanding of Free Software licenses.</p>
  150. </div>
  151. <div class="clear even">
  152. <p class="grid-40 left even">(3) You argue that the Commission should have come up with a strategy to take
  153. advantage of Free Software. I take this opportunity to inform you that the
  154. Commission has actually had an OSS strategy since 2001. A summary of the last
  155. version of this strategy is available at DIGIT'S website on the EUROPA portal1. A
  156. new version is in its final draft phase and will be published very soon. As a result
  157. of this strategy, more than 250 OSS products pertaining to all the categories
  158. managed by DIGIT are already in use at the Commission. For the sake of
  159. completeness, it may be worth mentioning some additional examples of
  160. achievements in this area, which very few (if any) public administrations in the
  161. world can match:</p>
  162. <p class="grid-60 right even">
  163. The fact that the European Commission uses Free Software is not in
  164. doubt. Nor is it a special achievement. At the end of 2008, the
  165. consultancy <a href="">Gartner expected 100% of businesses to use at least some
  166. Free Software by the end of 2009</a>.</p>
  167. <p class="grid-60 right even">
  168. The EC-backed <a href="">FLOSSPOLS study found that 78% of public administrations
  169. were using at least some Free Software</a> already in 2004/5.</p>
  170. <p class="grid-60 right even">
  171. At the same time, the EC and the other institutions included in this
  172. contract continue to spend substantial amounts of money on proprietary
  173. software, as exemplified both by SACHA II and the separate framework
  174. contract for the provision of Microsoft products and licenses,
  175. concluded January 10, 2008. This casts some doubt on the effectiveness
  176. of the EC's strategy.
  177. </p>
  178. </div>
  179. <div class="clear">
  180. <p class="grid-40 left">
  181. (a)The European Commission runs IT solutions on more than 350 Linux
  182. servers.</p>
  183. <p class="grid-60 right">
  184. We would like to ask the Commission about the total number of
  185. servers run by the European Commission and the other institutions
  186. covered by the SACHA II contract, and about the percentage of
  187. these servers that use Free Software operating systems such as
  188. GNU/Linux or BSD systems.</p>
  189. </div>
  190. <div class="clear">
  191. <p class="grid-40 left">
  192. (b) DIGIT'S Data Centre manages more than 800 OSS web servers.</p>
  193. <p class="grid-60 right">
  194. We would be interested to know how many web servers the European
  195. Commission and the other institutions covered by the SACHA II contract
  196. are operating; which software they use; and what percentage of these
  197. web servers actually are Free Software.</p>
  198. <p class="grid-40 left">
  199. [...]</p>
  200. </div>
  201. <div class="clear even">
  202. <p class="grid-40 left even">(h) The European Commission also manages three important public websites,
  203. also entirely powered by OSS software: (e-govemment
  204. related open source observatory and repository), (semantic
  205. assets exchange centre) and (community of e-
  206. Govemment, e-Inclusion and e-Health)
  207. </p>
  208. <div class="grid-60 right even">
  209. <p>
  210. We are fully aware of these websites, and appreciate their
  211. usefulness to many European public bodies. However, we regret that
  212. the Commission is not making greater efforts towards availing
  213. itself of the advantages of Free Software and Open Standards when
  214. it comes to its internal IT infrastructure. Such efforts would
  215. greatly help to increase interoperability, transparency and
  216. competition; they would enable a greater number of European SMEs
  217. to provide services to the Commission; and they would be likely to
  218. reduce the Commission's IT costs. Without decisive steps in this
  219. direction, the Commission's own guidelines and recommendations would
  220. ultimately be futile.</p>
  221. <p>
  222. The SACHA II call for tender was designed in a way that made it
  223. very hard, if not impossible, for Free Software companies
  224. to offer their products and services:</p>
  225. <p>
  226. The call for tender includes a long list of specific products, rather
  227. than a set of functional specifications. While formulations such as</p>
  228. <blockquote>
  229. <p>Product names and trademarks: Whenever the tendering
  230. specifications mention a specific product name or trademark
  231. and a sufficiently precise and fully intelligible description
  232. is not possible, such mention should be understood as
  233. referring to that product or its equivalent. (SACHA II <a href="]">Annex
  234. 6</a> : 5.1.4.)</p>
  235. </blockquote>
  236. <p>
  237. may or may not satisfy the letter of the law, they are certainly not
  238. conducive to competitive bidding by a large number of providers of
  239. different programs. This issue was at the heart of the European
  240. Commission's infringement proceedings against a number of Member
  241. States regarding discriminatory specifications in calls for tender
  242. specifying "Intel or equivalent" processors (see <a href=";format=HTML&amp;aged=0&amp;language=EN&amp;guiLanguage=en">Press release
  243. IP/04/1210</a>, October 13, 2004)</p>
  244. <p>
  245. <a href="">Annex 4</a> of the tendering specifications
  246. lists 251 named software products (not counting different varieties of
  247. those products). We are surprised that DIGIT found itself unable to
  248. provide a "sufficiently precise and fully intelligible description"
  249. for any of these products without resorting to product names and
  250. trademarks.</p>
  251. <p>
  252. DIGIT issued a comprehensive call for tender for a very large and
  253. diverse set of programs. If the Commission had truly wanted to acquire
  254. Free Software and related services, an appropriate approach would have
  255. been to tender a number of smaller, more specific contracts. European
  256. SMEs would have found it much easier to bid for such contracts.</p>
  257. <p>
  258. We would appreciate if the European Commission could inform us
  259. how spending under the SACHA II contract will be allotted among the
  260. different software products and services listed in the the call for
  261. tender. Which percentage of spending under this contract will go
  262. towards the purchase of Free Software and related services?</p>
  263. <p>
  264. Would the Commission also be able to inform us how many bids were
  265. received in total? This would be an interesting indication of the
  266. number of companies who felt that they were in a position to
  267. successfully bid for this contract.</p>
  268. </div>
  269. </div>
  270. <div class="clear">
  271. <p class="grid-40 left">(4) Your press release assumes that proprietary software is, by definition, unable to be
  272. interoperable or to implement standards. This is simply not true. Proprietary
  273. software can implement standards as much as OSS. To the best of my knowledge,
  274. the Commission's corporate IT infrastructure already supports all major IT
  275. standards, be it with proprietary software and/or OSS. Should you be aware of any
  276. major IT standard not currently supported by the Commission's infrastructure, I
  277. would be obliged if you could let me know about it, so that I can take appropriate
  278. measures.
  279. </p>
  280. <div class="grid-60 right">
  281. <p>
  282. Our press release assumes no such thing. FSFE maintains that <a href="/activities/os/def.en.html">Open
  283. Standards</a> can be implemented
  284. in both Free and proprietary software. Open Standards, which do not
  285. depend on any particular vendor, and which can be implemented in any
  286. software model, offer freedom from vendor lock-in and open up the
  287. software market to innovation and competition.</p>
  288. <p>
  289. We very much appreciate your request for input, and will avail
  290. ourselves of this opportunity whenever necessary.</p>
  291. <p>
  292. The important question is rather whether European institutions are
  293. accessible to citizens regardless of the type of software they
  294. choose to use. A notable failing, for example, is the fact that
  295. webcasts from the European Parliament cannot to our knowledge
  296. currently be viewed using a GNU/Linux operating system. This is a
  297. major impediment to the participation and involvement of citizens
  298. in the EU's decision making process. We would welcome DIGIT's help
  299. in removing this obstacle to democratic participation.</p>
  300. <p>
  301. We would also note that the Commission maintains a preference for
  302. proprietary document formats, and staff are still unable to receive
  303. documents in .odf formats without going through central translation,
  304. despite this having been established as a formal ISO standard.
  305. </p></div>
  306. </div>
  307. <div class="clear even">
  308. <p class="grid-40 left even">(5) This procurement procedure is totally unrelated to the ongoing revision of the
  309. European Interoperability Framework. Concerning this point, I should simply like
  310. to remind that the Commission has committed itself to adopting its
  311. Communication on Interoperability (which will include both the European
  312. Interoperability Framework and the European Interoperability Strategy) before the
  313. end of 2010, as stated in point 2.2.3 of the Digital Agenda. Since this file is
  314. heading towards its final adoption, it is inappropriate for me to make any further
  315. comments about the process.
  316. </p>
  317. <div class="grid-60 right even">
  318. <p>
  319. Our press release merely states that both this procurement and the
  320. revision of the European Interoperability Framework are
  321. coordinated by DIGIT.</p>
  322. <p>
  323. We are looking forward to the impending publication of the European
  324. Interoperability Framework, and, <a href="">despite indications to the contrary</a>
  325. , remain hopeful that it
  326. will provide at least the same level of leadership for the European
  327. public sector as the original version where Open Standards are
  328. concerned.
  329. </p></div>
  330. </div>
  331. <div class="clear">
  332. <p class="grid-40 left even">I can only regret that you did not cross-check your sources prior to issuing the press
  333. release. This appears to be based exclusively on an article which contains plenty of
  334. misleading elements. Should you have contacted us, it would have been a pleasure for my
  335. department to provide you with accurate factual information, and I am sure that the result
  336. would have been more balanced.
  337. </p>
  338. <div class="grid-60 right even">
  339. <p>
  340. I am pleased to inform you that rather than basing our public
  341. intervention merely on articles in the press, we followed FSFE's
  342. customary best practice of going to the source and, in this case,
  343. investing considerable amounts of time into studying the publicly
  344. available documents related to this procurement.</p>
  345. <p>
  346. We regret that the SACHA II contract itself has not been published. If
  347. the contract were to be made publicly available, FSFE and other
  348. European citizens who care about the way in which their taxes are
  349. invested and their institutions conduct their business would be able
  350. to verify that this agreement is truly in their best interest.</p>
  351. <p>The same applies for other contracts concluded by the Commission
  352. regarding the acquisition of software, such as the <a href=";tabId=1">EUR 49 million
  353. framework contract for Microsoft software and services</a> awarded to
  354. Fujitsu Siemens on January 10, 2008.
  355. </p>
  356. <p>
  357. Our goal is to increase the use of Free Software and Open Standards in
  358. all parts of the European public sector. This includes opening up
  359. public procurement to participation by Free Software companies. FSFE
  360. will be happy to work with DIGIT and other parts of the European
  361. Commission in order to support competition, choice and freedom in the
  362. European software market.
  363. </p></div>
  364. </div>
  365. </div>
  366. </body>
  367. <timestamp>$Date: 2010-12-15 14:08:10 +0100 (wed. 15 dec. 2010) $ $Author: maelle $</timestamp>
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