The French “Region Picardie” published on 22 February 2011 a call for implementation, hosting and maintenance of the open source software it had selected: “Lilie” (aimed at secondary schools). Two providers requested the cancellation of the call, because Article 6 of the Public Procurement Codes prohibits referring to brands in the technical specifications of contracting authorities.
While the first judge for urgent applications (in French “juge des référés”) accepted the request, the Council of State validated the tender process in appeal. Because it is open source, “Lilie” is freely available to all specialised ICT providers and everyone, including the two plaintiffs, had the possibility to use or adapt it for delivering the requested services. Therefore there was no distortion of concurrence neither a competitive advantage in favour of the original author of “Lilie”.
The new Council of State ruling, applicable in case of reference to specific software, can be compared to the Italian Supreme Court decision (Corte Costitizionale, 22 March 2010). The Region Piedmont passed a regional law of 26 march 2009 favouring globally open source software in public procurement (without naming a specific product). Following the central government's appeal, the Italian Constitutional Court confirmed this part of the regional law, stating that the preference given to open source has no link with a specific technology, but expresses a legitimate legal requirement.
When compared, the two decisions are not similar, but complementary: the Italian ruling validates a global "ex-ante" preference for free/open source procurement, while the French decision validate the "ex-post" requirement for specific services, once the FLOSS software has been chosen (not to say purchased, because it was obtained for free).
Some may argue that the French ruling presents some risks, because the initial determining choice escapes to open competition (i.e. between various other open source alternatives) and has a definitive impact on subsequent service markets that are never "for free".
However, the decision means that plaintiffs cannot contest the simple principle of a specific initial open source choice, but have to demonstrate a significant impact on competition (i.e. because of secret know-how kept by the original author, because of proprietary plug-in etc.). They have to produce evidence that the procurement process unfairly makes their own service proposal less competitive.
These two decisions highlight contracting authorities’ possibility for developing active open source policies.
Links to the decisions:
http://arianeinternet.conseil-etat.fr/arianeinternet/getdoc.asp?id=192208&fonds=DCE&item=1
http://www.cortecostituzionale.it/actionSchedaPronuncia.do?anno=2010&numero=122