During the IV CONFSL just concluded in Cagliari, in the session dedicated to legal topics in which we participated as speakers, attention was all turned to the recent Italian Constitutional Court ruling 122/2010.
Our talk (you can find both the presentation slides and our considerations in extended form attached) analysed the practical aspects of the issues relating to the combination between open source software, reuse and competition in PA, with particular attention to the Constitutional Court’s decision.
A ruling that will surely have an impact in the open world and will be much discussed in the coming months, thanks to the potentially revolutionary content of the principles established.
By stating the possibility for PAs to prefer one negotiation model over another, it recognised constitutional legitimacy to those regional laws which pronounce themselves in favour of the use of FLOSS within their structures.
But on balance, doubts remain. The ruling, while affirming principles valid “erga omnes”, refers to the specific case of the Region of Piedmont.
Even though it indicated as unfounded the question of constitutional legitimacy regarding violation of art. 117 of the Italian Constitution on competition discipline (it is therefore possible that a Region, in its organisational autonomy, decides to use open source software at the expense of proprietary solutions), it said nothing about the possible conflict of rules that would arise between regional legislation and that of the CAD where the Region chooses, a priori, open source software, bypassing the need for a technical and economic evaluation of the available solutions (art. 68 CAD).
In fact, art. 68 represents the parameter on the basis of which to identify the public interest in obtaining the best possible software in relation to the specific needs of the PA.
Asserting that the preferential title for software acquisition is its release under open source licence means choosing a priori an IT application regardless of performance and functional profiles — the only indices suitable to assess the satisfaction of the public interest in the particular field of PA informatisation.
Perhaps it is true, the issue is not competitive.
In any case some parties who, if there had been the correct evaluation of the technical and economic profiles, could have taken part in the procurement, are excluded. But then, might the rule have excluded potential operators from the possibility of contracting with the PA?
One should ask whether what is described above is not a problem of candidate selection, and if so, whether a conflict with art. 4 of the Public Contracts Code arises.
The doubt remains.
In the end FLOSS should not need legislation that guarantees a fast track, precisely because the problem is not competitive.
FLOSS is a model that guarantees excellent quality and performance levels, superior to those of proprietary software: this should be enough.
Nothing else is needed; you just have to apply the rules.