In a ruling of 30 September 2011, the Council of State, France's highest administrative court, clarified the right of contracting authorities to require suppliers to use specific open source software in the context of public procurement.
In the case in point, a regional authority had launched a call for tenders for the "awarding of a service provision contract for the implementation, exploitation, maintenance and hosting of a service platform for an open source digital working environment - named Lilie - aimed at secondary schools".
Two companies referred the case to the urgent applications judge (juge des référés, in French) who quashed the procedure on the basis that there was a breach of both the obligations of publicity and competitive tendering. Article 6 of the Public Procurement Codes prohibits referring to brands in the technical specifications of contracting authorities. Nevertheless, in the context of public procurement, the judge also had to "assess whether the technical specifications in question had the effect of favouring or eliminating economic operators". If it is established that there is an infringement to competition rules, the technical specification in question has to be justified by the purpose of the contract. However, the urgent applications judge deemed that restricting the call to the Lilie software was not justified by the purpose of the contract. Following this approach, the contracting authority should have enabled tenderers to propose any other relevant IT solution.
The judges of the Council of State do not share this opinion. They said that "the contract in question did not consist of providing software but of providing adaptation, installation and maintenance services for the Lilie software" that the contracting authority "could access freely and free of charge".
Moreover, the court's ruling states "mentioning the Lilie software" in technical specifications does not bring "competitive advantages" to the company which participated in the software's conception and co-owns it. Indeed, the court declared that "any company specialised in installing software supporting digital working environments for education institutions had the capability to adapt the software to the needs" of the contracting authority.
In other words, the judges decided that it was permissible for the technical specifications to mention the Lilie software in this specific case.
Further information: