Open source group sues Quebec, Microsoft for no-bid software contracting

A major problem for the development of free software is, ironically, the fact that it isn't worth anything. Not monetarily, that is, but now an open source group says its government must be forced to consider its value anyway.

Is any Quebec government agency that already has Microsoft, Novell, and IBM software installed on its networks compelled by law to consider alternative brands from Quebec-based suppliers? An association of free software publishers based in Quebec is citing a law that forbids provincial officials from entering into no-bid contracts with suppliers outside the province, in a lawsuit filed last July 15 -- but announced just yesterday -- against both Quebec and Microsoft, its key supplier.

As the Regulations of Quebec (R. Q.) currently read, the government cannot enter into any contract for goods valued at over $100,000 CAD unless it either gives consideration to Quebec-based competitive suppliers, or pledges to give equivalent consideration in the future.

R.Q. c. A-6.01, r.0.03, ch. 3, div. 1, §1, ¶5 (English):

Where the amount of a supply or service contract is 100 000 $ or more, or where the amount of a supply or service subcontract to a supply or service contract is 100 000 $ or more, that contract or subcontract may not be entered into with a Quybec supplier or subcontractor whose business has more than 100 employees, unless the supplier or subcontractor has made a commitment to implement an equal opportunity program that complies with the Charter of human rights and freedoms (R.S.Q., c. C-12) and holds an attestation to that effect issued by the Minister.

If such a contract or subcontract must be entered into with a supplier or subcontractor located outside Quybec but in Canada and whose business has more than 100 employees, that supplier or subcontractor shall provide in advance an attestation to the effect that he has already committed himself to implement an equal opportunity program of his province or territory, where applicable or, failing that, to implement a federal equal opportunity program.

While Microsoft is a US-based company, of course, it has a Canadian division Microsoft Canada CIE. It's this division, along with Quebec's minister for acquisitions, that the province's free software organization FACIL has sued in Superior Court. (Microsoft US is not a party to the suit.)

"In Quebec, access to public markets is the rule while contracts attribution without invitation to tender is the exception," reads a statement from FACIL released yesterday. "A public market should be transparent, fair and most importantly, open to all. The solutions as well as the propositions must be evaluated objectively on known and accepted criteria. Furthermore, the regulation implies that public markets have to enhance the local economic development as well as the Quebec technologies."

In a July 15 filing publicly released yesterday (PDF available here), FACIL cites public records showing seven separate procurements from February to June of this year ordered from Microsoft by Guy Chouinard, Quebec's Director-General for Acquisitions, totaling $10,711,986.05 CAD. Free alternatives to that software from Quebec suppliers may not have been considered, FACIL believes, for the simple reason that the software is free. In other words, since the government can't bid zero, it can't bid.

As the official English translation of FACIL's filing reads, "Another way to acquire Free Softwares is by coming to an agreement with suppliers for services contracts. This solution should be preferred as soon as the expertise and the resources required are not available within the organisation. In Quebec, there is still an important difference between the two types of softwares and Free Softwares are often put at a disadvantage. The Proprietary Software commercial model, based on the selling of the Source code, is sold as a product. As far as Free Softwares are concerned, the suppliers give the source code for free, marketing instead their expertise and a wide range of subsidiary services."

As Chouinard himself stated in an April 2007 interview in Le Soleil that first brought the matter to the public's attention, the free software industry in Quebec is at an automatic disadvantage. His office had never received a proper tender offer for the procurement of operating systems other than Microsoft Windows, he said. Although alternatives may exist, the government can't bid on those alternatives if there's no way to place a bid for something that's free.

What's more, Chouinard said, Quebec is signing "umbrella contracts" with suppliers including IBM, Novell, and Microsoft, to keep government agencies supplied with updates. For them, it's been the easiest way to ensure that successive software remains compatible with existing software. And departments that are accustomed to doing business with preferred, reliable suppliers don't want to be forced to consider alternatives...or else they never will consider alternatives. Meaning, when it comes time to upgrade (say, from XP to Vista), they'll stay with the older version rather than waste taxpayer dollars in open hearings to hear every other option on the planet.

As far as making some kind of compromise, however -- perhaps a transfer of software through a sale of services -- Chouinard went on to say there's no one in government who really knows how to open a channel to the free software industry. That's because, he said, that industry tends to live on the fringe -- or, in the literal translation, "on the corner of the table." (qui vit souvent sur le coin de la table).

It would have been a fairly innocuous little interview if Chouinard had left out that little comment. The response took a few months, but in September 2007, the CEO of Quebec's Savoir-Faire Linux, Cyrille Byraud, gave a well-considered, tailored response: a treatise entitled "The Long Road to Free Software in Quebec." (PDF available here).

"On the one hand, the legal framework resulted in a situation of de facto monopoly with all the inconveniences that come with such a situation," Byraud wrote. "When you buy a book, for example, you enjoy the book then place it in your bookcase. You don't need that book to read the others books. Your bookcase is filled with a multitude of books, all independent of one and other. Such is not the case with software. Every program uses components from other software programs. Every program will need to communicate the data it has processed to other programs. It's as if choosing the work of one publisher at first obligates you to buy all of his books and only his books. In the field of computer science, the consequence was felt immediately and it wasn't long before one software publisher, whose only merit was to have been in the right place at the right time, found itself in a monopoly situation in several market sectors, dictating its prices and products to the detriment of productivity and free competition."

Since computer science is a cumulative thing, Byraud continued, its evolution naturally runs contrary to the notion of intellectual property as something that belongs to someone or something perpetually. By that token, he implies, software is not property.

Of course, that's the problem: If software is not property, no one can bid on it, for the sheer reason that there's no form for bidding on nothing. (Besides, whose software would one choose to use to place the bid?)

But the FACIL suit makes one more argument -- one that's somewhat bolder, and perhaps difficult to prove: that Windows Vista is different from Windows XP by name only, and that there may be no real reason for Quebec to bid for new software simply because the name is new.

"We submit that it is well known that Microsoft new 2007 softwares, one of which is Vista, have only in common with the preceding softwares their function and the name of their manufacturer," reads the English translation of the FACIL suit.

Microsoft told BetaNews this afternoon it has no comment on the matter, and Quebec's Director-General for Acquisitions has also issued no public statement since the suit was filed.

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