CH: Court approves purchase of proprietary licences without tender
Switzerland's Federal Administrative Court yesterday decided that a government organisation's renewal of its proprietary software licences without a public tender does not harm the business interests of open source software service providers
With that the court dismissed the claim by a group of eighteen open source companies that the Department for Building and Logistics (BBL) should have issued a call of tender in 2009. BBL in May that year had renewed a three year contract worth 42 million Swiss frank (about 31 million Euro) with a proprietary software vendor for licences, maintenance and support. The contract involves the software on PCs for 40,000 federal employees.
In the public court session yesterday, four out of five judges thought the claims by the open source service providers were not relevant. According to a press statement by Ch/Open, a open source industry group, the fifth judge warned that this decision "(...) in a radical way limits the market to a single provider."
According to a report on the court session by the Swiss IT news site Inside IT, the other four judges decided that the Federal IT strategy had been based on the single proprietary vendor and that the court should not change this approach.
The open source advocacy group is worried about the consequences of the dismissal. Matthias Stürmer, spokesperson for Ch/Open and representing the group of open source service companies, told Inside IT the outcome actually makes it even more difficult for the open source companies. "This gives the government a free hand in awarding contracts. That is the opposite of what we tried to achieve."
The group will await the written verdict by the court before it decides to appeal. According to Stürmer the legal procedures in the past year costed the group a quarter of a million Swiss franks (about 187 thousand Euro).
The outcome is also causing consternation in the Group for Digital Sustainability, a group of parliament members that want the public administration's IT system to become more independent from IT vendors. MP and the group's vice-president Edith Graf-Litscher: "With this decision the court hinders competition in the IT market and prohibits procurement law."
More information:
Inside IT news item (in German)
Inside Channels news item (in German)
Swiss IT Magazine news item (in German)
Neue Zürcher Zeitung news item (in German)
Der Landbote news item (in German)
TLC news item (in Italian)
TSR news item (in French)
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Purchasing proprietary licences without call for tenders
This seems surprising indeed: every administration has (or should have) a strategy in multiple procurement domains: if the preferred strategy is to drive a Mercedes, does it exempt to call for offers from other car builders?
By enforcing the obligation to issue a public call for tender, the Court would not have changed anything in the administration strategy: the call has to explain the approach, by allowing competitors to present alternatives. Otherwise, it voids all effect of procurement law.
However, commenting a Court decision without exploring all its aspects is difficult. The possibility of appeal (Swiss Federal Court) exists. Maybe a case to study during the next EOLE (European Open source Lawyers Event) in Torino (30 Nov 2010).