Choice in Government Software Procurement: A Winning Combination
(2006) 15 P.P.L.R. Issue 6, pp. 338-351
Governments are such significant purchasers of IT products and services that their purchasing decisions have a substantial impact on the world’s IT marketplace. This fact calls into question the wisdom of decisions by a few policymakers (on national, state, and local levels) around the world that have sought to require that governmental procurement officials give varying degrees of preference to open source software (OSS) when evaluating competing software solutions, claiming, among other things, that such preferences are justified because OSS is cheaper and more interoperable than proprietary software and needs government handicapping in order to enter the market to compete with established proprietary software providers.
Such procurement preferences for specific technology solutions or software licensing/business models, whether overt or implicit, are bad public policy and do not reflect the realities of the current IT marketplace. They arbitrarily force product uniformity and vendor lock-in, thereby significantly impeding the benefits of choice, competition, and innovation that flow from technical solutions based on multiple interoperable sources. As a result, governments are prevented from securing the best technical solution available. This approach is particularly imprudent given the current rapid convergence of technologies in an increasingly heterogeneous IT eco-system that permits the ability to choose and combine the best proprietary and best open source products to forge an ideal solution.
But software procurement preferences are not simply bad public policy. As demonstrated, court decisions in Brazil and Belgium indicate that they may also be per se illegal under well-established principles of law including equal protection and non-discrimination. Accordingly, policymakers should develop procurement policies that are neutral with respect to specific technologies or platforms and that allow the governmental decisionmaker to choose the best alternative -- OSS or proprietary software -- in a particular situation based on reasonable, objective criteria, including (1) total cost over the projected life of the product; (2) interoperability; (3) reliability; (4) vendor support; (5) ease of use; (6) security; and (7) availability of warranties and indemnities for intellectual property claims.
Commercial Law | Computer Law | Constitutional Law | Government Contracts | Intellectual Property Law | International Law | International Trade Law | Internet Law | Legislation | Science and Technology Law
Date of this Version
McLean Sieverding, "Choice in Government Software Procurement: A Winning Combination" (February 16, 2006). bepress Legal Series. bepress Legal Series.Working Paper 969.