Thursday 20 November 2014

Request NSW Gov stop discriminating against Open Source

To the NSW Procurement Team,

During a recent NSW tendering process, we discovered the NSW Government purchasing guidelines actively discourage use of Open Source Software. These guidelines about Open Source Software are dated and need to be changed.

The guidelines:
  • Inaccurately imply Proprietary Software is less risky than Open Source [1],
  • Unfairly discriminate against Open Source Software solutions and Australian Open Source businesses [1],
  • Conflict with Australian government policy which directly mandate that Open Source and Proprietary Software should be considered equally. [2]
  • Increases the cost and reduce the value of NSW Government IT purchases by actively discouraging use of Open Source.
Could the NSW Procurement Team please review the current Open Source statement, assess the appropriateness of updating to Australian Government Policy statements related to Open Source, and reply describing how you plan to address this issue.

Reference 1:

The NSW IT procurement framework (version 3.1) specifically discourses use of Open Source software with Major Project System Integration Services.
23 Open Source Software
23.1 The Contractor must ensure that:
(a) none of the Deliverables comprise Open Source Software; and
(b) it does not insert any Open Source Software into the Customer Environment, except to the extent otherwise approved by the Customer in writing.
23.2 Where the Customer gives its approval in relation to the use of any Open Source Software
under clause 23.1:
(a) the Contractor must ensure that the use of that Open Source Software will not result in an obligation to disclose, license or otherwise make available any part of the Customer Environment or any of the Customer’sConfidential Information to any third party; and
(b) the use of that Open Source Software will not in any way diminish the Contractor’s obligations under the Contract, including without limitation in relation to any warranties, indemnities or any provisions dealing with the licensing or assignment of Intellectual Property.
See: Module 13A Major project systems integration services

Reference 2:
Australian Government Policy on Open Source Software:
Principle 1: Australian Government ICT procurement processes must actively and fairly consider all types of available software.
Australian Government agencies must actively and fairly consider all types of available software (including but not limited to open source software and proprietary software) through their ICT procurement processes. It is recognised there may be areas where open source software is not yet available for consideration. Procurement decisions must be made based on value for money. Procurement decisions should take into account
whole-of-life costs, capability, security, scalability, transferability, support and manageability requirements.
For a covered procurement (over $80K), agencies are required to include in their procurement plan that open source software will be considered equally alongside proprietary software. Agencies will be required to insert a statement into any Request for Tender that they will consider open source software equally alongside proprietary software. Tender responses will be evaluated under the normal requirements of the Commonwealth Procurement Guidelines. For a non-covered procurement (below $80K), agencies are required to document all key decisions, as required by the Commonwealth Procurement Guidelines. This includes how they considered open source software suppliers when selecting suppliers to respond to the Select Tender or Request for Quotation.
Australian Government Policy on Open Source Software,


Johan Van de Wauw said...


You should bring this information to the attention of the free software foundation.

They may have (legal) resources to fight this type of requirements.


Cameron Shorter said...

I've received the following after raising the issue with NSW Procurement:

Re: NSW Procurement Client Support Centre Incident: I411210040

Dear Cameron Shorter,
Thankyou for contacting the NSW Procurement Client Support Centre.

We have recorded your details as follows:
ID: I411210040
Client: General Public & Suppliers
Name: Cameron Shorter
Phone: ...
Email: ...