Free software (also called open source software ) is software whose use, study, modification and redistribution are permitted, both technically and legally, for the benefit of any owner of a copy of the software.
Mutualizable, adaptable and transparent, Open Source software is attractive to all organizations wishing to be in control of their digital tools. It is therefore not surprising that more and more public actors are interested in Open Source software as a way of organizing and developing their digital projects, whether for their internal operations or in the context of their missions to the general public. In this respect, digital technology favors "working together" and good management of public funds.
Nevertheless, such a change does not take place without a profound cultural transformation, from the design to the financing of the digital project. One of the strong tensions that remain, notably because of the gap that exists between the vision of the team that conceives the project and those of the services that accompany it, is the purchasing stage: to take into account the specificity of Open Source software, traditional methods must themselves evolve. Indeed, such projects are not conceived, materialized and maintained in the same way as traditional digital projects. Even more so, if the administration wishes to make it a "digital commons" maintained and used by a community of public and private actors.
In this context, a study was conducted to identify the challenges and solutions for the prefiguration of digital commons in the design of public procurement contracts. A first series of exchanges has been conducted in order to define the perimeter of the study, allowing us to identify any relevant resource or contribution in this area. The note remains iterative, so don't hesitate to contact us if the subject inspires you or interests you.
Some good practices to adopt in order to impose the choice of an open source software within public markets
The specificities of Open Source Software have long led to policy measures enabling administrations to make the most of these affinities with this development model (see the Ministerial Declaration on eGovernment known as the Tallinn Declaration of October 6, 2017).
Thus, fostering the emergence ofopen source contributes to the creation of an environment conducive to competition and innovation in public procurement, with the beneficial consequences that this can have on prices, welfare and economic growth. This strong link between Open Source software and undistorted competition has been confirmed by various court decisions in recent decades (see Italian Constitutional Council, March 23, 2010, 122/2010).
From the point of view of public procurement, a public purchaser who wishes to impose an Open Source Software (named or not) in the context of the execution of a contract for the provision of services does not contravene the principle of non-discrimination that is imposed on him. This observation remains true when the contract concerns a named Open Source Software: the latter being accessible to all under the same conditions, everyone is thus free to formulate an offer in conformity with the expressed needs of the public purchaser, which contributes in fine to a free competition. This analysis was validated in France by a decision of the Council of State in 2011 (Decision of the Council of State CE n°350431 of September 30, 2011).
Nevertheless, several validations remain necessary: validate the choices from a legal, technical and economic point of view before the contract is awarded; impose the use of standardized legal tools (standard free license in particular); ensure that the documented source code is publicly accessible; verify the governance of the project so that there is no break in competition between the players likely to respond to the contract.
Référence :
Feedback from RTE on the implementation of these best practices
Lucian Balea, R&D Program Director and Open Source Manager at RTE, was able to testify to the implementation of the above practices during a European Commission Open Source Observatory (OSOR) webinar. For the first time, RTE was able to implement the above recommendations in a contract for custom opensource developments that would then be shared under a permissive or low copyleft license.
The first observation is that while some vendors refused theopen sourceconditions, the proposals submitted by others were very satisfactory. Nevertheless, this first observation resulted in a number of adaptations to the theoretical framework initially set:
Thus, on the technical level, RTE's bidding models now offer the possibility of requiring specific open source components to meet particular functional needs, as well as the possibility of requiringopen source (but without prescribing the components) to meet some or all of the functional needs. Also, RTE now only requires the use of permissive or low copyleft open source licenses.
As far as governance is concerned, RTE requires that open source components proposed in response to a call for tenders are subject to open governance (for example by being hosted by a foundation) as well as a compliance program in accordance with Open Chain 2.0 specifications. Finally, RTE includes in its calls for tenders provisions facilitating the contribution to the development and documentation of projects, and in particular the distribution of these developments and associated documentation under an open source license.
This work to improve the best practices to be adopted in the context of the awarding of a public contract requiring Open Source Software by RTE is only in its infancy, as the speaker emphasized, and will continue as new contracts are awarded.
Référence :
EOLE: Feedback on the use of open source software by public actors
The 13th edition of the EOLE (European Open Source & free software Law Event) conference focused on open source software and public actors, and was divided into 5 webinars, the second of which focused on the acquisition of open source software by public actors, and their experiences and research on the subject.
Cooperation around open source software from the perspective of European Union law
Barbara Gagliardi, Professor of Administrative Law at the University of Turin, provides an understanding of European law on public procurement and open source software. Public entities as economic operators are allowed to carry out their activities by using their internal resources or by awarding a contract to another economic operator. This choice is an expression of the right to self-organization of public entities.
However, cooperation is not included in the "internal resources" hypothesis. The Court of Justice of the European Union has recognized that cooperation is the result of a horizontal relationship between a public entity and a third party.
According to the Court, for cooperation to be established, the following conditions must be met:
The contract establishes cooperation with the aim of achieving objectives that the actors have in common;
The implementation of this cooperation is governed solely by considerations of public interest (not profit)
Finally, the participating contracting authorities carry out less than 20% of the activities concerned by the cooperation on the market.
The cooperation can cover any type of activity related to the execution of public services assumed by the participating authorities. It can also cover "ancillary activities" such as the adaptation of software.
Feedback from the city of Barcelona
Marc Pérez-Batlle, responsible for technological innovation projects for the city of Barcelona, shares his experience on the implementation of open source software for the city.
Three projects stand out according to Marc Pérez-Batlle:
Decidim: which is a platform of participatory democracy, through which citizens can participate in the democratic life of the city. This platform was created with the participation of citizens in the development of the code;
Ethical Mailbox: a platform created to anonymously denounce fraud on the part of elected officials and public actors.
These experiences have shown that FOSS projects have the advantage of being replicable, cost-effective and strengthen the close collaboration at local level, but also internationally, as they have been taken up or replicated by other European municipalities.
Collaboration between local entities: the LocalGov Drupal project
Finally, the presentation of Andrew Katz & Finn Lewis, involved in the LocalGov Drupal project, gave an insight into the collaboration between local entities within the same project. This FOSS (Free and Open Source Software) project started with two UK local councils deciding to share code to create their website. This initiative, combined with government funding, allowed LocalGov Drupal to come to life. The collaboration was organized around a simple and lightweight memorandum of understanding, giving them a clear roadmap. This project, which has involved 4 municipal councils for 1 year, has so far resulted in the launch of new websites for two municipalities.
---TheDigital Society Lab proposes to take a critical look at the ethical and social challenges of the digital world.In this context, the firm Inno³ is producing a series of resources for public actors wishing to mobilize the potential of the digital commons in their strategy. Throughout the year, these articles decipher the legal and economic challenges of the digital commons.
Public procurement, open source and digital commons
Free software (also called open source software ) is software whose use, study, modification and redistribution are permitted, both technically and legally, for the benefit of any owner of a copy of the software.
Mutualizable, adaptable and transparent, Open Source software is attractive to all organizations wishing to be in control of their digital tools. It is therefore not surprising that more and more public actors are interested in Open Source software as a way of organizing and developing their digital projects, whether for their internal operations or in the context of their missions to the general public. In this respect, digital technology favors "working together" and good management of public funds.
Nevertheless, such a change does not take place without a profound cultural transformation, from the design to the financing of the digital project. One of the strong tensions that remain, notably because of the gap that exists between the vision of the team that conceives the project and those of the services that accompany it, is the purchasing stage: to take into account the specificity of Open Source software, traditional methods must themselves evolve. Indeed, such projects are not conceived, materialized and maintained in the same way as traditional digital projects. Even more so, if the administration wishes to make it a "digital commons" maintained and used by a community of public and private actors.
In this context, a study was conducted to identify the challenges and solutions for the prefiguration of digital commons in the design of public procurement contracts. A first series of exchanges has been conducted in order to define the perimeter of the study, allowing us to identify any relevant resource or contribution in this area. The note remains iterative, so don't hesitate to contact us if the subject inspires you or interests you.
Some good practices to adopt in order to impose the choice of an open source software within public markets
The specificities of Open Source Software have long led to policy measures enabling administrations to make the most of these affinities with this development model (see the Ministerial Declaration on eGovernment known as the Tallinn Declaration of October 6, 2017).
Thus, fostering the emergence ofopen source contributes to the creation of an environment conducive to competition and innovation in public procurement, with the beneficial consequences that this can have on prices, welfare and economic growth. This strong link between Open Source software and undistorted competition has been confirmed by various court decisions in recent decades (see Italian Constitutional Council, March 23, 2010, 122/2010).
From the point of view of public procurement, a public purchaser who wishes to impose an Open Source Software (named or not) in the context of the execution of a contract for the provision of services does not contravene the principle of non-discrimination that is imposed on him. This observation remains true when the contract concerns a named Open Source Software: the latter being accessible to all under the same conditions, everyone is thus free to formulate an offer in conformity with the expressed needs of the public purchaser, which contributes in fine to a free competition. This analysis was validated in France by a decision of the Council of State in 2011 (Decision of the Council of State CE n°350431 of September 30, 2011).
Nevertheless, several validations remain necessary: validate the choices from a legal, technical and economic point of view before the contract is awarded; impose the use of standardized legal tools (standard free license in particular); ensure that the documented source code is publicly accessible; verify the governance of the project so that there is no break in competition between the players likely to respond to the contract.
Référence :
Feedback from RTE on the implementation of these best practices
Lucian Balea, R&D Program Director and Open Source Manager at RTE, was able to testify to the implementation of the above practices during a European Commission Open Source Observatory (OSOR) webinar. For the first time, RTE was able to implement the above recommendations in a contract for custom opensource developments that would then be shared under a permissive or low copyleft license.
The first observation is that while some vendors refused theopen sourceconditions, the proposals submitted by others were very satisfactory. Nevertheless, this first observation resulted in a number of adaptations to the theoretical framework initially set:
Thus, on the technical level, RTE's bidding models now offer the possibility of requiring specific open source components to meet particular functional needs, as well as the possibility of requiringopen source (but without prescribing the components) to meet some or all of the functional needs. Also, RTE now only requires the use of permissive or low copyleft open source licenses.
As far as governance is concerned, RTE requires that open source components proposed in response to a call for tenders are subject to open governance (for example by being hosted by a foundation) as well as a compliance program in accordance with Open Chain 2.0 specifications. Finally, RTE includes in its calls for tenders provisions facilitating the contribution to the development and documentation of projects, and in particular the distribution of these developments and associated documentation under an open source license.
This work to improve the best practices to be adopted in the context of the awarding of a public contract requiring Open Source Software by RTE is only in its infancy, as the speaker emphasized, and will continue as new contracts are awarded.
Référence :
EOLE: Feedback on the use of open source software by public actors
The 13th edition of the EOLE (European Open Source & free software Law Event) conference focused on open source software and public actors, and was divided into 5 webinars, the second of which focused on the acquisition of open source software by public actors, and their experiences and research on the subject.
Cooperation around open source software from the perspective of European Union law
Barbara Gagliardi, Professor of Administrative Law at the University of Turin, provides an understanding of European law on public procurement and open source software. Public entities as economic operators are allowed to carry out their activities by using their internal resources or by awarding a contract to another economic operator. This choice is an expression of the right to self-organization of public entities.
However, cooperation is not included in the "internal resources" hypothesis. The Court of Justice of the European Union has recognized that cooperation is the result of a horizontal relationship between a public entity and a third party.
According to the Court, for cooperation to be established, the following conditions must be met:
The contract establishes cooperation with the aim of achieving objectives that the actors have in common;
The implementation of this cooperation is governed solely by considerations of public interest (not profit)
Finally, the participating contracting authorities carry out less than 20% of the activities concerned by the cooperation on the market.
The cooperation can cover any type of activity related to the execution of public services assumed by the participating authorities. It can also cover "ancillary activities" such as the adaptation of software.
Feedback from the city of Barcelona
Marc Pérez-Batlle, responsible for technological innovation projects for the city of Barcelona, shares his experience on the implementation of open source software for the city.
Three projects stand out according to Marc Pérez-Batlle:
Decidim: which is a platform of participatory democracy, through which citizens can participate in the democratic life of the city. This platform was created with the participation of citizens in the development of the code;
Ethical Mailbox: a platform created to anonymously denounce fraud on the part of elected officials and public actors.
These experiences have shown that FOSS projects have the advantage of being replicable, cost-effective and strengthen the close collaboration at local level, but also internationally, as they have been taken up or replicated by other European municipalities.
Collaboration between local entities: the LocalGov Drupal project
Finally, the presentation of Andrew Katz & Finn Lewis, involved in the LocalGov Drupal project, gave an insight into the collaboration between local entities within the same project. This FOSS (Free and Open Source Software) project started with two UK local councils deciding to share code to create their website. This initiative, combined with government funding, allowed LocalGov Drupal to come to life. The collaboration was organized around a simple and lightweight memorandum of understanding, giving them a clear roadmap. This project, which has involved 4 municipal councils for 1 year, has so far resulted in the launch of new websites for two municipalities.
---TheDigital Society Lab proposes to take a critical look at the ethical and social challenges of the digital world.In this context, the firm Inno³ is producing a series of resources for public actors wishing to mobilize the potential of the digital commons in their strategy. Throughout the year, these articles decipher the legal and economic challenges of the digital commons.