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Doubts about the validity of Romanian ministry’s open source ban

OSOR reports that Experts on procurement involving open source software doubt the validity of a tender published by the Romanian Ministry of Internal Affairs (MAI) in July, which excluded solutions based on open source licences (news passim). The ministry’s justification of the ban “seems to be odd and not convincing and that makes me wonder if it would stand in court”, declares Mathieu Paapst, an open source and software procurement specialist at Groningen University in the Netherlands

Patrice-Emmanuel Schmitz, a Brussels-based open source specialist declares, “The ministry’s ban may reflect a lack of understanding of open source. It is a very surprising prohibition.”

The MAI is looking for builders of an IT system to manage the country’s criminal records. The ministry has budgeted some €2.85 mn.) for this new Information System of Romanian Criminal Records (Rocris). One of the requirements for Rocris is that “the software may not be published under a ‘free software license’ – GPL or similar.”

Commenting on this ban, the ministry earlier this month cited strict requirements for security and interoperability.

The excuse puzzles Schmitz. One possible explanation for the ban may be that the MAI erroneously considers open source to be a risk to the sensitive information the system is to handle. Schmitz: “If this is the case, it reflects a lack of perception of the real risk.”

Exclude competition

Paapst concludes that the ban is prohibited by the European procurement directive. “The Ministry is using a technical specification that refers to a particular process of production with the effect of favouring or eliminating certain undertakings or certain products. The European procurement directive does forbid this kind of use of specifications unless it is justified by the subject-matter of the contract. The justification of the ministry does however seems to be odd and not convincing and that makes me wonder if it would stand in court.”

Even the European Commission’s Directorate-General (DG) for the Internal Market yesterday carefully expressed some doubts: “(The ban) will have the effect excluding from competition economic operators whose software solutions are based on such public licences. Such (a) limitation may create an unjustified obstacle to the opening up to competition.”

The DG also says the ban could be justified by the technical requirements or other constraints of the contracting authority – and these could include interoperability and security needs. The DG: “We do not have the technical expertise to assess to which extent the limitation imposed by the contracting authority is objectively justified from a technical perspective. This is an issue to be clarified by technical experts.”

The ministry has not yet responded to questions seeking clarification.