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

Wed Aug 23 13:27:28 AEST 2017

In 2014 we discovered that NSW Procurement guidelines for large projects 
state [1]:
/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. /

I've been alerted to the fact that this clause still exists in the new 
draft, which is apparently due to be made public in September.

Jack,  I know you co-authored a submission to get this changed, and 
presented the submission. Where did that eventually get to?

I'm thinking we might need to resubmit your submission.

Warm regards, Cameron

[1] 
https://www.procurepoint.nsw.gov.au/system/files/documents/module_13a_major_project_systems_integration_services_v3.2.pdf

On 20-Nov-14 8:07 PM, Jack Burton wrote:
> Evening, all.
> Just a quick note to let everyone know that the board is considering the
> matter and how best to act on it.
>
> Thanks Cameron for bringing this to our attention in the first place and
> for your contributions since.
>
> I believe this is an important matter, but at the same time it's worth
> noting that that particular revision of the NSW Government's Procure IT
> framework has been in force for almost 18 months already [1], so whilst
> important, it's not necessarily urgent.
>
> So if we are to seek change, it is worth taking the time to ensure we do
> so in the manner most likely to succeed.
>
> The board is considering a number of options and one of us will post to
> this list as soon as a decision has been made.
>
> In the meantime, please don't let that serve to stifle discussion at all
> -- often the best ideas can come from threads just like this one.
>
> Regards,
>
>
>
> Jack Burton
> <jack at saosce.com.au>
>
> [1] "Version 3.1 replaces version 3.0, and is applicable to all IT
> purchases made after 13 June 2013." -- see 2nd paragraph at
> https://www.procurepoint.nsw.gov.au/before-you-supply/standard-procurement-contract-templates/procure-it-framework-version-31
>
> _______________________________________________
> Osia-members mailing list
> Osia-members at osia.com.au
> http://www.osia.com.au/mailman/listinfo/osia-members

On 19-Nov-14 6:42 AM, 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 herehttps://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

-- 
Cameron Shorter, Software and Data Solutions Manager,
Jirotech Pty Ltd,
Suite 112, Jones Bay Wharf, 26 - 32 Pirrama Rd, Pyrmont NSW 2009

P +61 2 8099 9000, M +61 419 142 254, W www.jirotech.com

P +61 2 8099 9000, M +61 419 142 254, W www.jirotech.com

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