[Osia-members] NSW Government Procurement actively discourages use of Open Source

[Don Christie]

Agreed. The focus of this recommendation should be on software licences
in general. In particular governments should be worried about the
variation and lack of transparency that every proprietary licence
contains.

They should be pointed to the good legal advice that many other
governments have produced about understanding and adopting open source
licences.

Cheers
Don

On Wed, 2014-11-19 at 06:42 +1100, Cameron Shorter wrote:
> I propose that the following email is sent on behalf of OSIA by the
> OSIA president:
> 
> From: OSIA president
> To: nswbuy at finance.nsw.gov.au
> CC: osia-members at osia.com.au, cameron.shorter at lisasoft.com
> 
> To NSW Procurement Team,
> 
> We, the Open Source Industry of Australia, who represent Australian
> Open Source companies, are concerned that NSW Procurement guidelines
> about Open Source Software should be changed.
> The guidelines:
> * Inaccurately imply Proprietary Software is less risky than Open
> Source [1],
> * Unfairly discriminate against Australian Open Source Software
> solutions [1],
> * Conflict with Australian government policy which directly mandate
> that Open Source and Proprietary Software should be considered
> equally.[2]
> * Increases the cost of NSW Government IT purchases by actively
> discouraging use of Open Source.
> 
> Could the NSW Procurement Team please review the current Open Source
> statement, and assess the appropriateness of updating to Australian
> Government Policy statements related to Open Source.
> 
> 
> 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. 
> 
> https://www.procurepoint.nsw.gov.au/before-you-supply/standard-procurement-contract-templates/procure-it-framework-version-31
> See:  Module 13A Major project systems integration services
> 
> Reference 2:
> The "Australian Government Policy on Open Source Software" specificy
> encourages equal assessment 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.
> 
> http://www.finance.gov.au/policy-guides-procurement/open-source-software/
> 
> 
> On 5/11/2014 4:04 pm, Daniel Jitnah wrote:
> 
> > Hi
> > 
> > Just quickly read the actual NSW document on this matter.  Two points:
> > 
> > My guess is that these clauses have been in there for a long time and
> > no-one has really paid much attention to them.  They reflect the typical
> > attitude of say 5yrs+ past of Gov agencies and large business regarding
> > OSS at the time of intense Microsoft fud re: SCO etc.   (Note the
> > original doc is from 2011, and none of the changes mentionned (in 2013)
> > appeared to have affected the relevant sections.  Chances are these
> > clauses even predate 2011)
> > 
> > Fortunately things have changed since and more and more Gov are seeing
> > the benefit of OSS.  So these clause are obsolete.
> > 
> > But that does not mean that this state of matter should not be
> > changed/removed.
> > 
> > The wording is very unfortunate and reflects a serious misunderstanding
> > (and suspicion) about open source.
> > 
> > The Victorian Gov. has a similar clause, but is far less negative about
> > FOSS and only goes as far to asking that the providers asks for the
> > Clients permission before including FOSS.
> > 
> > (The scary bit :
> > 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.
> > 
> > does not exist in the Vic version).
> > 
> > OSIA did respond to the relevant part in the Victorian document
> > 
> > http://www.osia.com.au/drupal7/sites/default/files/OSIA_submission_1.pdf
> > (2013),
> > 
> > and queried why such clauses were included and asked for a reassurance
> > that if the client had any issues they would first consult with the
> > provider and attempt to resolve the issues first instead of denying
> > "permission" without explanation without providing the provider an
> > opportunity to address the issues.  Although this is *not* an ideal
> > position, OSIA felt that it was an acceptable compromise, and would also
> > provide an opportunity to "educate" the client about FOSS, which we felt
> > was the likely basis for including such clauses.
> > 
> > One other thing of concerned in the NSW doc, is the definition of Open
> > Source.  It is far broader than the more current definition from a
> > licensing point of view (OSI license).  That further suggests a poor
> > understanding of Open Source software license which was common then.
> > 
> > Probably the best way to approach this is to seek that the NSW Gov
> > updates the document to reflect the latest trends in adoption of FOSS.
> > I am sure there are plenty of examples that they can be pointed to that
> > show the benefits of open source and that the clauses mentionned only
> > restrains their own abilities to make gain of the benefits of Open Source.
> > 
> > 
> > Cheers,
> > 
> > Daniel.
> > 
> > 
> > 
> > 
> > 
> > 
> > 
> > 
> > 
> > 
> > 
> > 
> > 
> > 
> > 
> > 
> > On 05/11/14 15:17, Martyn Reeves wrote:
> > > Hi Cameron
> > > 
> > >  
> > > 
> > > It is indeed a concern but I guess the good news is that NSW IT is
> > > willing to accept OSS based systems these days. 
> > > 
> > >  
> > > 
> > > We often see these issues when large organisations look to procure OSS
> > > code/applications. Black Duck Software can help bidders like you by
> > > creating a BoM for the code base showing exactly which pieces of OSS are
> > > used and how.  And specifically what the obligations are for each OSS
> > > license and where they may conflict which each other, and also with the
> > > declared or published license.  We can do this as a once off audit to
> > > accompany a bid or it can also be offered as an ongoing service as new
> > > releases are put together. Black Duck can also show security
> > > vulnerabilities for all the OSS that is contained within the BoM, or for
> > > any piece of OSS that is requested. 
> > > 
> > >  
> > > 
> > > You can read more here https://www.blackducksoftware.com/audits or feel
> > > free to ask me any questions by mail
> > > 
> > > 
> > > Hope this helps.
> > > 
> > > 
> > > Martyn Reeves 
> > > 
> > > mreeves at blackducksoftware.com
> > > 
> > > 
> > > ------------------------------------------------------------------------
> > > *From:* osia-members-bounces at osia.com.au
> > > [osia-members-bounces at osia.com.au] on behalf of Cameron Shorter
> > > [cameron.shorter at gmail.com]
> > > *Sent:* Tuesday, November 04, 2014 6:21 PM
> > > *To:* osia-members at osia.com.au
> > > *Subject:* [Osia-members] NSW Government Procurement actively
> > > discourages use of Open Source
> > > 
> > > I'm not sure if others are aware of this, but I suspect it is directly
> > > of concerned to all of us working with Open Source Software.
> > > 
> > > 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. /
> > > 
> > > https://www.procurepoint.nsw.gov.au/before-you-supply/standard-procurement-contract-templates/procure-it-framework-version-31
> > > See:  Module 13A Major project systems integration services
> > > 
> > > _______________________________________________
> > > Osia-members mailing list
> > > Osia-members at osia.com.au
> > > http://www.osia.com.au/mailman/listinfo/osia-members
> >