Now it’s official: The European Commission will migrate to Microsoft Windows 7 without considering alternative offers. In a reply to questions asked by MEP Bart Staes (Greens/EFA), the EC on May 27 confirmed that it has awarded contracts for the upgrade to Microsoft and reseller Fujitsu-Siemens on behalf of 55 other European institutions and the Commission itself. [Update: link to reply moved for better visibility]
The EC had taken the decision to migrate in a closed-door meeting on December 15, 2010 (see New York Times, Jan 26, 2011). At the Free Software Foundation Europe, we have three concerns about this move: That this move will drive the EC into even greater dependence on Microsoft’s products; the lack of a public call for tender; and the migration’s effects on the Commission’s credibility with member states.
Even greater lock-in
In the Commission’s answer to Staes, EC Vice-President Maroš Šefčovič argues that “[t]he Commission does not rely on (or is locked into) one single software vendor”, citing the fact that the Commission’s IT infrastructure uses software from many different vendors.
But this answer misses the point. The real question is whether the EC is locked into Microsoft’s “office automation platform” (as the Commission calls it). According to the Commission’s answer, that is clearly the case.
In an annex to its reply to MEP Staes, the EC describes three different contracts which it has awarded. Two of those contracts were made without a public call for tender. That can be done in certain circumstances, but it needs to be justified. Here is the EC’s justification for going straight to Microsoft:
A change of supplier would oblige the contracting authority to acquire equipment having different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance.
Translation: Switching to a different vendor is just too hard. If you need a definition of lock-in, look no further. But just to make sure we get the point, the EC adds this justification for awarding another contract directly to Microsoft, for 44.7 million Euro:
The contract can be awarded only to the selected economic operator for technical reasons, or for reasons connected with the protection of exclusive rights
I don’t know what the Commission calls this. I call it a crystal clear instance of vendor lock-in. Lock-in is relative, not absolute. The more difficult and costly it is to change your software supplier, the more locked-in you are.
This is what Neelie Kroes, Europe’s Commissioner for the Digital Agenda, meant when she said:
After a certain point that original choice becomes so ingrained that alternatives risk being systematically ignored, no matter what the potential benefits. This is a waste of public money that most public bodies can no longer afford.
No public call for tender
While lock-in is a problem that troubles many organisations, our next concern is quite specific to this case: We believe that the European Commission should have put out a public call for tender when it wanted a new software platform. Instead, the EC simply declares that the move to Windows 7 is just an “upgrade” – just a newer version of the same product.
If “it’s just an upgrade” becomes acceptable as an excuse to ignore the competition and cozy up to a single supplier, then Europe’s market is in trouble; and not just the one for software. Imagine a local administration that decides to have the town’s main street repaved by the same company that built it in the first place, saying that they’re just “upgrading” the road surface. No new competitor would ever get a foot in the door. Public bodies would hardly ever have to hold competitive bidding procedures for any type of product or service they’ve bought before. This simply cannot be right.
The foundation of Europe’s procurement rules, Directive 2004/18/EC, says that those rules are intended to guarantee the opening-up of public procurement to competition. But it looks like in this instance, the EC has found a way to sidestep that goal, letting inertia (let’s be kind here, ok?) take precedence over competition and long-term value for Europe’s citizens. The Commission itself feels the need to emphasise that “it always complies with public procurement legislation”. We’d certainly hope so.
It doesn’t help that the EC is obviously confused on the commercial nature of Free Software when it uses “open source” as the opposite of “commercial software”. Some people in the Commission seem to believe that there is no money to be made with Free Software. The many companies that have built their business on software freedom would certainly argue otherwise.
The contracts that the EC is entering into for the migration to Windows 7 depend on an older agreement: The EC’s 2007 “Large Account Reseller Microsoft Products” contract with Fujitsu Siemens. The tender notice puts Microsoft’s brand name front and center. That doesn’t chime so well with the rules in Directive 2004/EC/18, Art. 23.8:
Unless justified by the subject-matter of the contract, technical specifications shall not refer to a specific make or source, or a particular process, or to trade marks, patents, types or a specific origin or production with the effect of favouring or eliminating certain undertakings or certain products.
It’s hard to argue with a straight face that there’s no way to describe the software that the Commission was looking for without mentioning a particular “make or source”. Indeed, the EC itself manages to find a synonym in its reply to MEP Staes: it’s all about an “office automation platform”. See, that wasn’t so hard. So why does the EC feel comfortable relying on the 2007 contract, if it is tainted by the original sin of mentioning a brand name?
From the Brussels grapevine, we hear that the Commission’s legal services have had a long, hard look at the decision to migrate, and eventually gave a green light, saying that this course of action was possible under the present rules. If that is the case, our conclusion has to be that the rules have loopholes the size of barn doors. Those loopholes need to be closed.
Fortunately, the Digital Agenda promises a step in this direction. In section 2.2, it says that the Commission will
Issue a Communication in 2011 to provide guidance on the link between ICT standardisation and public procurement to help public authorities to use standards to promote efficiency and reduce lock-in
What about the EC’s credibility?
This leads to our third concern: that this move will hurt the EC’s credibility. The Digital Agenda has noble ambitions. But its implementation depends on the goodwill of the EU’s member states.
The EC’s answer to the MEP’s question says that an OSOR guideline on public procurement is not an official Commission position. That may be so. But the Digital Agenda certainly is an official communication of the European Commission. It’s fair to use it as a yardstick to measure the Commission’s actions.
On that measure, the EC’s actions clearly fall short of its proclamations. The Digital Agenda talks about “help[ing] public authorities to use standards to promote efficiency and reduce lock-in”. That is exactly what a migration to Windows 7 doesn’t do.
Which is why we’re worried about the implications for the valuable document that is the Digital Agenda for Europe. Why should the member states bother to overcome resistance to change in their own bureaucracies, when even the European Commission blatantly disregards its own guidelines and recommendations?
It would have been nice if besides not breaking its own rules, the EC had gotten round to showing the tiniest bit of leadership for Europe’s public sector through its own actions.
In sum, the EC’s reply leaves open more questions than it answers. It would be interesting to hear the Commission’s views on the four points below in particular:
- The Commission declares that it is not locked into Microsoft’s products. Why then, in its answer to MEP Staes, does the EC argue that using an alternative supplier would bring “disportionate technical difficulties” (Contract 2 in Annex 1 to the EC’s reply), and that “[t]he contract can be awarded only to the selected economic operator for technical reasons, or for reasons connected with the protection of exclusive rights” (Contract 3)? If the EC is not in fact locked into Microsoft’s office automation platform, why did it not issue a public call for tender?
- The EC argues that the new Interinstitutional Licensing Agreement
(ILA) involved no cost. At the same time, it awards a 44.7 million Euro service contract to Microsoft without a public call for tender. Can the Commission explain this coincidence? If there is a connection between the two contracts, what is its nature?
- If the Commission holds the present migration to Windows 7 to be merely an upgrade, rather than the acquisition of a new product: what would be the minimum threshold of novelty in a product above which the EC would consider it necessary to launch a procurement action?
- How does the Commission reconcile the course of action it has chose for this migration with the Digital Agenda’s demand that “Public authorities should make best use of the full range of relevant standards when procuring hardware, software and IT services” (section 2.2.2)? If a divergence is identified here, what does the Commission believe will be effects of that divergence on Member States’ implementation of the Digital Agenda?