Experts on procurement involving open source software doubt the validity of a tender published by the Romanian Ministry of Internal Affairs (MAI) in July, in which it bans solutions based on open source licences. The ministry's justification of the ban "seems to be odd and not convincing and that makes me wonder if it would stand in court", comments for instance Mathieu Paapst, an open source and software procurement specialist at the Dutch university of Groningen.
"The ministry's ban may reflect a lack of understanding of open source", tentatively supposes Patrice-Emmanuel Schmitz, a Brussel-based specialist on the European Union's open source licence, the EUPL, working at IT firm Unisys (and one of the consultants involved in the OSOR). "It is a very surprising prohibition."
The MAI is looking for builders of an IT system to manage the country's criminal records. The ministry has budgetted 12 million ron (about 2.85 million euro) for this new Information System of Romanian Criminal Records (Rocris). One of the requirements for Rocris is that "the software may not be published under a 'free software license' - GPL or similar."
Commenting on this ban, the ministry earlier this month cited strict requirements for security and interoperability.
The excuse puzzles Schmitz. One possible explanation for the ban may be that the MAI erroneously considers open source to be a risk to the sensitive information the system is to handle. Schmitz: "If this is the case, it reflects a lack of perception of the real risk."
Exclude competition
Paapst concludes that the ban is forbidden by the European procurement directive. "The Ministry is using a technical specification that refers to a particular process of production with the effect of favouring or eliminating certain undertakings or certain products. The European procurement directive does forbid this kind of use of specifications unless it is justified by the subject-matter of the contract. The justification of the ministry does however seems to be odd and not convincing and that makes me wonder if it would stand in court."
Even the European Commission's Directorate General (DG) for the Internal Market yesterday carefully expressed some doubts: "(The ban) will have the effect excluding from competition economic operators whose software solutions are based on such public licences. Such limitation may create an unjustified obstacle to the opening up to competition."
The DG also says the ban could be justified by technical needs or other constraints of the contracting authority, and these could include interoperability and security needs. The DG: "We do not have the technical expertise to assess to which extent the limitation imposed by the contracting authority is objectively justified from a technical perspective. This is an issue to be clarified by technical experts."
The ministry has not yet responded to questions seeking clarification.
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