FACIL launches lawsuit against Quebec government to close loophole

FACIL sent out press release (english press release, which includes a link to a translation of their court filing) that documents their launching of a case in Quebec Superior Court. The case is intended to end a loophole being used by the Quebec provincial government to award contracts to proprietary software suppliers without an adequate evaluation of all the options, including Free/Libre and Open Source Software options.

I was interviewed by Peter Nowak for CBC News last evening about the case. Even though I hadn’t read the documents from FACIL yet, guessed which loophole they were trying to close.

To understand this case you need to both understand how the government procurement process normally works, and how special circumstances for intangibles like software demand enhancements to the process to ensure fairness.

The government uses an open and accountable process for procurements where they create specifications for what they want, they file this with a procurement system (MERX in Canada) , companies then bid, and the government then uses a point system to award the contract based on best value for dollar.

When the government is procuring something tangible, this process works well. The bidders simply include the cost of the procurement process in the costs of their bids, and the government is able to get the best value for their dollar.

The procurement system recognizes that for small items that the process would create too much overhead. Federal Government Departments have authority to buy up to $5,000 directly from suppliers. Over $5,000 they must go to PWGSC, and PWGSC will always advertise on MERX any goods or services estimated at $25,000 or more.

Lets look at software closely. Once a government department makes the decision to acquire a specific piece of software, you end up with a few situations.

  • If the software is licensed under a royalty-bearing license, they need to go through a procurement process in order to obtain the licenses. In this case there is only ever one supplier for the license, which is the copyright holder. The copyright holder may have many resellers authorized to resell, but ultimately it is the copyright holder that is offering the licenses.
  • If the software is Free/Libre and Open Source Software (FLOSS), then the government department already a license (governments are pre-authorized royalty-free to use FLOSS just like everyone else) and no process is required.

In both of these cases, going through a procurement process is redundant as either the government must file an ACAN (Advanced Contract Award Notice) to obtain the license from the copyright holder, or they don’t need any process as they are already licenced to use the software.

It should be clear that in this case the relevant decision isn’t the one determined through the redundant procurement process, but the process the government went through to decide what software to use in the first place. It is this initial decision which determines what companies are able to provide any ongoing value-add support, given support is often tied to specific software. FLOSS support companies may be able to support any FLOSS software, but only the copyright holder of proprietary software can authorize specific companies to be able to do more extensive support which may require modifications to the existing software.

We also need to look at how to fund the process of determining what software should be used. While a proprietary vendor can include the costs of any processes in what they charge for licenses, FLOSS suppliers cannot do the same thing as they are offering their licenses royalty-free. One company could invest the resources to convince the government to go with a given FLOSS package, and then when the government goes to a competitive process for ongoing support (as they should) the contract is awarded to a competitor. This unfair process ensures is that nobody is willing to invest in educating the government about all the valid options it has available to it, and decisions are being made by the government with inadequate information.

The FACIL lawsuit is entirely about the above problem. Governments are deciding in unaccountable ways that they want to acquire specific software licenses, and then using ACANs to announce the fact that they are purchasing those licenses. We need to back this decision up a step and instead of continuing to use this procurement process loophole to instead ensure that the initial decision of what software to acquire is made in an open and transparent way.

There are other issues related to government acquisition of software that have come up. One of my customers has in the past needed to take the federal government to the CITT (Canadian International Trade Tribunal) for procurements which demanded that a media monitoring service, which happened to include software, must run Microsoft Windows.

To quote the decision (CITT File No. PR-2000-073):

“… the Library, in setting out the requirements of the RFP, relied extensively on trade names as a proxy for performance specifications, when recognized open standards exist, and introduced unallowable and/or unsupported and non-documented extra support costs for bidders offering non-Microsoft-based solutions, thereby structuring an RFP that favours one class of bidders, those offering Microsoft-based solutions, over the other bidders. In the Tribunal’s opinion, this amounts to discrimination.”

(See also: Canadian International Trade Tribunal and Free/Libre and Open Source Software)

It is unfortunate that we are forced to go to courts and tribunals to convince the government to use transparent and accountable processed to acquire software. Sometimes this is our only option to correct a situation that is not only unfair to software suppliers but also citizens that need to interact with the government and pay for the decisions governments make.

See also: Open source group sues Quebec over MS purchase by Kathleen Lau – ComputerWorld Canada

Russell McOrmond is a self employed consultant, policy coordinator for CLUE: Canada’s Association for Free/Libre and Open Source Software, co-coordinator for Getting Open Source Logic INto Governments (GOSLING), and host for Digital Copyright Canada.

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