Open source group sues Quebec over MS purchase

A Montreal-based open source association that’s suing the government of Quebec for procuring proprietary software without considering open source alternatives, wants the government to take a more European approach to software purchases.

Facil president, Mathieu Lutfy, said European governments in particular have come to understand that open source technologies not only help create jobs for local talent, but grant governments increased control over the software they’re using.

Open source expert Russell McOrmond on the Facil case:

“Sometimes this is our only option”

“Open source allows much more freedom in the way we use and modify and distribute the tools,” said Lutfy, adding that for security purposes, governments can know exactly what the software is doing.

Lutfy cited a case when France’s military fixed a bug in OpenOffice after reading the source code, “which is incredible and wouldn’t be possible otherwise.”

In the lawsuit filed in mid-July with the Quebec Superior Court and made public this week, Facil contends the Quebec government did not consider software alternatives that would stimulate market competition, choosing instead to purchase from proprietary vendors like Microsoft Corp. Facil wants the courts to ban the Quebec government from taking advantage of a loophole in provincial law that allows it to procure software without considering competitive RFPs (request for proposals).

The Quebec government is undergoing “major upgrades” from Windows XP to Vista, said Lutfy, “which really requires a lot of work and the government decided to proceed without making an open call for tenders.”

That approach, he continued, “goes against the public markets policy of the government.”

The Quebec government spent $25 million on desktop licenses from February to June of this year, Lutfy estimated, most of which could have been avoided with open source software.

David Canton, Toronto-based lawyer with Harrison Pensa LLP, said he’s seen issues arise when an RFP process is not followed, be it in the private or public sector. In such cases, to be successful, he said, the plaintiff must prove that a particular law or procurement principal was in fact violated.

But Canton is interested by the injection of an open source component in the case because “whether open source versus Microsoft or open source versus any other software, it’s something that seems to be very emotional… there are lots of people that are very staunch believers in open source software.”

The reality, said Canton, is there “certainly are instances where open source software makes sense to use, but there are also circumstances where it may not be the most advantageous to use.”

Issues influencing software procurement go beyond just the cost, he noted, like compatibility with other systems for instance. “It’s never as simple as the open source advocates would lead you to believe.”

But unnecessary licence costs aside, Lutfy said Facil’s grievance has also to do with the missed opportunity to take advantage of local IT talent and software and “reinforce an expertise that we can afterwards export.”

Canton said he can’t predict whether the lawsuit will stimulate similar ones to emerge across other provinces, given the difficulty in comparing products or services procured. “It’s like anything where you are buying something or are doing an RFP, it’s a bit of an art as to what you’re buying and why, and how you compare one product to another.”

Lutfy expects the legal process will be a lengthy one, with the next step being hearings in September involving the different parties.

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