December 2010 Archives

Hansard's cloud plan

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Thumbnail image for Thumbnail image for Hansard Broadcast Improvement Plan Systems Diagram.jpg
Diagram produced by The Parliamentary Information Communication and Technology (PICT) office and published in its July 2010 Report, Final Options and Recommendations for the Broadcast Improvement Plan - a scheme to improve the publication of Hansard data on the web by making greater use of its multimedia recordings.

The diagram (click on image to enlarge) describes two scenarios for embedding indexed multimedia recordings of Parliamentary proceedings in text transcripts published on Hansard's web pages.

It was envisaged that once PICT had developed a Hansard API that could deliver video into web pages, it could make the facility available to anyone who wanted to embed recordings of Parliamentary proceedings into their blogs or wotnot.

One of the project's over-riding objectives was: "To improve access to Parliamentary content by using open standards to achieve maximum possible audience reach, both today and in the future."

The second of the options shown in the diagram shows PICT's recommended Hansard Improvement Plan. The mass transfer of Hansard data into a cloud repository would provide an opportunity to do a bulk transcoding at the same time. The transcoding would convert Hansard's data from proprietary multimedia formats over which there were inherent usage restrictions that contravened its "maximum possible audience" aim. It would encase them with open standards.

PICT provided a definition of Transcoding in its feasibility study for the Improvement Plan: "This is usually done to incompatible or obsolete data in order to convert it into a more suitable format."

Banned in Parliament: the technology that offends democracy

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Parliament has taken advice over what technology it should and shouldn't use if it wants to prevent private software companies from determining who can and can't access Hansard, the official record of Parliamentary proceedings. 

The Parliamentary Information Communication and Technology (PICT) office used the advice, from two of the UK's most prominent standards experts, to develop a policy that reflected how computer standards have become a matter of significance to democracy.

Central to the advice is a concern over multimedia standards, which has informed PICT's decision to overhaul Hansard's electronic publications, introducing open standards and ditching technology that puts restraints on what computer users can access public Parliamentary records.

Providing a list of forbidden technologies, the advice came from a May 2009 report (called Principles of Data and System Design for the Acquisition, Management and Delivery of Parliamentary Information) written by Francis Cave, chair of the controversial International Standards Organisation committee that oversees the OOXML and OpenDocument file formats, and Alex Brown who sits on the British Standards Institute Technical committee that does the same.

"The following technologies must not be used as they either hinder operability, impose a burden on the user, damage the chances of long term stability, or are obsolete," said Cave and Brown in the report.

"W3C 'Web Services' technologies (SOAP etc)", SGML, RTF, ActiveX, COM, OLE, "CORBA (etc)" and Java applets, were all forbidden.

The report also said Adobe's ubiquitous Flash and Microsoft's Silverlight multimedia standards "must not be used" unless there were simply no alternative open standards that might replace them. Parliament makes use of both technologies and though PICT has opted to replace them, it has not determined whether the technical limitations of HTML5, the comparatively immature open standard that competes with them, is yet up to scratch.

The four commandments

Cave and Brown's advice made it into a feasibility plan for Parliament to modernise Hansard on the Web. It was subsumed into a set of design principles ("constraints") imposed on future developments of Hansard's Web system.

These constraints, obtained by Computer Weekly under FOI, included the following four key points:

  • Non-open standard formats should not be used to deliver content
  • Proprietary components or 3rd party plug-ins should not be used
  • The project should meet the requirements for digital preservation.
  • The solution should reach the widest possible audience

The policy reflected a wider concern that the historic record would be threatened by the way software vendors imposed restrictions on data stored using their proprietary formats. PICT has joined forces with Parliament's Digital Preservation team to find an open standard in which Parliamentary records can be stored.

PICT admitted with the publication of the same constraints that recordings of Parliament's proceedings had been stored (using non-open Microsoft formats) without any thought for the consequences for digital preservation. PICT rejected Microsoft's Silverlight but recommended waiting to see if the HTML5 open standard improved before making a decision.

Not so flash

Flash appeared to have proved the point for PICT. In a feasibility study for Hansard's modernisation, the department noted that even though Flash was used by more than 95 per cent of computer users, Apple had prevented Flash from being used on its iPhone and iPad. Apple develops QuickTime, a competing technology, but allowed HTML5 to be used on its platform.

PICT's analysis reflected the fact so many software vendors had been competing to dominate the multimedia industry with their own proprietary standards that HTML5 had been left by the wayside. 

But Flash's popularity would pass. It was, said PICT, "predominantly down to the popularity of YouTube". The video website had opted to use Flash at a time when the multimedia market had been "fragmented" by Windows Media, QuickTime and RealPlayer, each of whom had their own proprietary format, multimedia codec and delivery platform.

"YouTube's success was down to its ability to provide free, easy-to-use tools to upload, play and share video in a joined-up manner and in the absence of any open standards for video on the web," said PICT's report.

But with the backing of Apple, Google and YouTube, HTML5 was, implied PICT, looking more like a viable open standard.

The trouble with Europe's software megadeal

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The Free Software Foundation Europe thinks there's some serious trouble with the European Commission's largest ever software contract.

The contract is not quite as guilty as charged. But the FSFE's attention has exposed greater problem, of eurocratic proportions.

The FSFE said the EC had signed its €189m SACHA II contract in "direct contradiction" with decisions and guidelines designed to prevent EU bodies being tied into parasitic contracts with proprietary software vendors.

The sad thing is that SACHA II contradicts only what people like FSFE president Karsten Gerloff wished the Commission's decisions and guidelines said. The guidelines themselves are too weak and wishy-washy to change anything but people's perceptions.

The SACHA II contract tied up the lion's share of the EC's software purchasing with one company, Dutch middleman PC Ware. This was in direct contradicted of Europe's Digital Agenda, said the FSFE.

Was it?

The Digital Agenda contained some fine words. It decried a "lack of interoperability" in European computer systems and the "weak" standards that presided over them.

It even declared how the Digital Agenda, "Europe's strategy for a flourishing digital economy by 2020", wouldn't get anywhere without interoperable standards and "open platforms".

It really did give the impression it was going to do something about the way public procurement favoured proprietary software vendors. But its only relevant proposal was the production of a report next year.

European Interoperability Fudge

This might all change with this week when the Commission is expected to publish V2.0 of its European Interoperability Framework. If the Digital Agenda beats the drum, the EIF plays the tune. The Digital Agenda said European Union countries should adopt the EIF by 2013.

But the open source lobby is bracing itself for the EIF to be one almighty fudge. Early drafts were hopeful, they say, with high-fluting talk of open standards. Intense lobbying by software companies that own money-making rights over standards is said to have forced a number of revisions that will make the final version about as effective as a battalion of United Nations peace-keepers under siege.

Don't expect the EIF to have any teeth. It's not as though Brussels has the political clout to mandate open standards like they did recently in India.

What you can expect from Europe is spelled out quite clearly in its Malmö and Granada Declarations on interoperability and standards. The Digital Agenda said EU countries should implement these declarations by 2013 as well. EC's SACHA II contract was in direct contradiction with them as well, said the FSFE.

A mug's eyeful

But being declarations, they are little more than more high-fluting talk. European ministers declared at Granada on 19 April that they should "consider...promoting" open standards.

They declared at Malmö on 18 November 2009 that they would "promote" open specifications. Their commitments to open systems were even more vague than bolder declarations that in the UK have never amounted to much despite their repetition.

While all this ineffectual chatter goes on, big software contracts like SACHA II two are tying the major software vendors up with cosy contracts that will keep them in sports cars and transatlantic travel for another half a decade or more.

This is no problem if you subscribe to the belief that public policy is determined not by the letter of the declaration but by its frisson. If enough people believe it, it may happen. Like salvation.

That is why it is interesting to hear that the FSFE will be taking a closer look at the procurement regime of these big contracts. It's most scandalous charge against SACHA II was that it discriminated in favour of proprietary vendors, sending them off on a €189m gravy train while everyone else chatted in the sidings about the inequities of software procurement.

But the FSFE hasn't specified how this discrimination was carried out. It ought to present its case if it wants to stop the train.

How to win an Oracle contract - Part II

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Now we've rattled the black box in which the European Commission keeps its €10m Oracle contract, its Directorate-General for Informatics (DIGIT) has attempted to answer our questions about it.

How, we asked, did the Commission legally justify striking a €10m, three-year deal with Oracle without opening it up to tender, so anyone to have a pop?

A spokesman for the Commission said today in a written statement that it struck the three-year Framework Agreement as a "direct consequence" of Oracle's acquisition of BEA Systems.

DIGIT awarded the Oracle contract on 18 December 2009. Oracle completed its acquisition of BEA Systems almost 20 months earlier, on 29 April 2008.

Hobson's choice

The spokesman said the Commission used BEA WebLogic software on "about 300 information systems". He implied that the Oracle deal was done in order to upgrade BEA Oracle licences. He said:

"The Commission assessed alternative platforms available on the market and concluded that the cost of migrating the existing base of information systems was more than 7 times higher than the cost of continuing to use the Weblogic product range."

In other words, the simple conclusion that replacing an embedded system would be too expensive was enough to deter an open competition for an alternative. EC competition rules are designed to prevent this sort of Hobson's choice, rife as it is in the technology sector.

Hobson's contretemps

But the Commission failed to provide a precise justification of the Oracle deal. This would include an assessment of the prior state of the BEA licences, whether they were up for renewal in December 2009 or whether their renegotiation was done as a result of a change of terms imposed by Oracle after its acquisition.

If Oracle had changed its licence terms, it may have been unable to impose the new terms until the told licences expired. Either way, it is not clear from the EC's answer how an acquisition would create a logical need for licence renewal 10 months later without an open competition. Neither can it be assumed the Commission got a good deal.

Big picture

Indeed, Computer Weekly did not ask merely how the EC justified the Oracle deal legally. As it happens, the EC did not do even that: it provided a description of its justification but not the documentation by which it actually justified the deal under Article 126 of the European Financial Regulations.

On these pages, we also asked the broader question of the technical and competitive efficacy of the Oracle Framework.

How, we asked, could the Commission justify striking shoe-in deals and shrouding them in secrecy when the market could only evolve in full awareness of those instances where it had failed so significantly that such deals were necessary?

Hobson's apologist

The Commission did not tackle this point. But it did give some context that can only lead to greater dissatisfaction for those who believe that procurement transparency and open standards are the two unexpendable components of a healthy technology market:

"Because Oracle had become the owner of the products formerly sold by BEA Systems, the Commission conducted a negotiated procedure with Oracle. This enabled the Commission to protect its past investments by securing the best possible conditions. This is both in full conformity with the procurement legislation and in the interest of the EU taxpayers."

Leaving aside the unsettled matter of whether the EC did indeed strike a good deal, the question still remains whether an open competition might have contributed to the generation of alternatives that, if not in 2009, and if not in 2012 when the Oracle contract is up for renewal then simply maybe, might encourage competition.

The EC statement in full:

"The procurement procedure to which the contract notice in question relates is a direct consequence of the acquisition of BEA Systems by Oracle in 2008. Products from the BEA Weblogic range were in use at the Commission for about 300 information systems supporting both administrative processes and EU policies in various areas.

"The Commission assessed alternative platforms available on the market and concluded that the cost of migrating the existing base of information systems was more than 7 times higher than the cost of continuing to use the Weblogic product range.

"This is a clear case in which the provisions of Article 126(1)(b) of the Implementing Rules of the Financial Regulation apply. Because Oracle had become the owner of the products formerly sold by BEA Systems, the Commission conducted a negotiated procedure with Oracle. This enabled the Commission to protect its past investments by securing the best possible conditions. This is both in full conformity with the procurement legislation and in the interest of the EU taxpayers.

How to win an Oracle Contract

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Step 1: Make sure you're Oracle. Are you Oracle? Good. You win.

That's how Oracle won the €10m Oracle contract the EC offered Oracle this time last year.

It did so, according to the Contract Award Notice, "without a call for competition". In other words, the EC simply gave the business to Oracle.

It did this not merely because the contract was called "BEA/Oracle -- Oracle licences", although that did make Oracle a bit of a shoe-in.

It won because Oracle was apparently the only IT company that could possibly do the work.

You may think that European competition law prevents contracts being handed out to great ugly software behemoths without opening the ring up for anyone who wants to give them a fair fight.

No comment

Oracle itself is all for fairness, particularly towards its EC cash cow. Perhaps it would justify why the €10m deal was done in secret? No, said an Oracle spokeswoman today:

"Oracle does not comment on the internal procurement procedures of its customers."

It must be difficult for them. Deals done in secret create the impression that they might be hiding something embarrassing. The EC hasn't published a justification for the deal either. Neither has it answered our request for one.

No documentation

The EC does normally publish the documentation for its ICT tenders. Good thing too, considering the amount of public money it spends on them. But those deals it strikes without going to tender are hush hush, even though they are the very deals most in need of closer examination.

No explanation

Such deals as the Oracle contract (a framework agreement, to be specific) are permitted in European law. But only in exceptional circumstances, and with very clear justification that, were it ever to be challenged in court, would be interpreted very strictly.

"You can't just say you are relying on these grounds because you feel like it. You really have to show good reason why you are not opening this for competition," said a legal source close to the Commission, who preferred not to be named.

No room for manoeuver

This strict justification was one of two important rules the European Court of Justice established over these deals, he said. The other was that if anyone did challenge the deal, the burden of proof would lie with the contracting authority.

The Oracle contract award gives the stock justification for its secrecy, simply citing the rules that provide the justification. It has not provided the actual justification.

So the contract is for the "provision of Oracle licences, maintenance and Oracle highly specialised informatics services". It cites Article 126 of the European Financial Regulations, giving "technical reasons" or "reasons connected with the protection of exclusive rights". It doesn't even say which it is.

No progress

This lack of public justification is intriguing to say the least. We might imagine in its place a world where companies like Oracle had their markets so tied up that public authorities had no choice but to buy their technology. Open standards hoped to break the mould. But we have been kept guessing over what gave Oracle the power to strike this deal. Until detailed justification of such arrangements is published routinely, companies like Oracle may be the only ones capable of fulfilling the requirements of contracts like the Oracle contract next time they are up for renewal.

Lawyers like Mark Henley, director of technology law Wragge & Co, are meantime not convinced there is a need for such a contract.

"The Commission ought to be procuring licences for database or ERP software having certain performance or functional characteristics," he said, "rather than simply asking for Oracle licences.

"Identifying Oracle forecloses competition for all other database or ERP companies," he added.

It is not as though there is any shortage of other ERP and database firms. Though if we get carried away with ourselves, we might imagine a world in which Oracle had bought them all.

Microsoft could be barred from tenders

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Microsoft could be barred from taking part in public tenders, Computer Weekly can reveal.

But Microsoft's market position may be so strong that it prevents public bodies from deploying their blacklisting powers. EU competition law may be useless in the face of technical monopolies that draw their power from the control of interoperability standards.

The question of blacklisting Microsoft was first raised in 2008 when the European Commission signed a €49m Microsoft contract with Fujitsu. MEPs asked whether the contract should be barred under competition rules. As though to punctuate their point, the contract was enacted within days of the Commission fining Microsoft €899m for failing to co-operate with previous orders to address its market abuse. The same contract is up for renewal in February.

MEPs learned that Microsoft could not be blacklisted automatically. But the law allowed public bodies to bar Microsoft contracts on a case by case basis.

The Office Of Government Commerce confirmed that public purse holders have the same powers under the 2006 Public and Utilities Contracts Regulations. This gave them discretion to exclude suppliers that have "committed an act of grave professional misconduct in the course of his business or profession".

It gave UK bodies the same option to blacklist suppliers for a breach of competition law as was established in the original EU directive under which MEPs hoped to bar the Fujitsu contract.

The UK's Office of Government Commerce said: "It would fall upon the individual contracting authority to consider on a case by case basis whether it is reasonable and proportionate to exercise its discretion to exclude."

Blacklisting

Whether it would be reasonable and proportionate to blacklist Microsoft would depend on the seriousness of its offences, their relevance to a particular tender, and whether it had absolved itself with remedial steps and by paying its fines.

This is untested territory, and not the least because no-one has yet to try and bar Microsoft.

The closest example in UK law occurred last year when the Office of Fair Trading fined 103 construction companies for price fixing. The OFT advised that public procurers should resist the temptation to bar these 103 from tenders. The was because price fixing was endemic to the building industry. It wouldn't be fair to bar only those few who were caught.

This provided no direct parallels with Microsoft. Microsoft was not one for price fixing. And one cannot say Microsoft's crimes were endemic to the market. Microsoft is the market. It's crimes were for monopoly abuse.

Simon Taylor, antitrust lawyer at Wragge & co., says purse-holders should bear in mind that "it might be proportional to blacklist someone for a limited period", but that to do it for too long "would be disproportionate". 

Microsoft

Microsoft's case is still open. It was found in abuse of its dominant market position as long ago as 2004, and upheld against Microsoft's court appeals in 2007. And Microsoft also paid €777m of EC competition fines.

But on 9 May 2008, Microsoft appealed the final €899m fine in the General Court. 30 months later, the case has still not been brought before the court. It usually takes 18-24 months before a hearing.

The fine Microsoft is appealing was imposed ultimately because it tried to extend its "near monopoly" in desktop operating systems into servers and multimedia by exerting its powers over interoperability standards.

Microsoft took steps to stem these abuses in 2007. But the question of the power it exerts over interoperability standards is still pertinent today, as open source advocates at Bristol City Council found recently to their dismay.

Bristol was just the sort of Council that might blacklist Microsoft. But it learned the hard way that Microsoft's market power cannot be denied. It's power over standards is so strong that even a public body that like Bristol, which wanted to use open source software on the desktop, simply had to give up and buy Microsoft because everyone else used Microsoft software and Microsoft standards.

Similar problems stopped MEPs in their tracks when they raised a ruckus over the Fujitsu contract.

Powerless

"Microsoft was the first company in fifty years of EU competition policy that the Commission has had to fine for failure to comply with an antitrust decision," said the Commission on 27 February 2008, two and a half weeks before it officially awarded the €49m Microsoft contract to Fujitsu. 

Might the EC have used its discretion to bar the Fujitsu/Microsoft contract? Might it even find reason to bar the contract's renewal when it comes up in February?

It's an amusing question. Because that tender used a get-out clause to specify "Microsoft" against the rules of competition. How on earth could anyone hope to bar Microsoft from a bid that specifies the supplier must be Microsoft? EU and UK competition law looks about as useful as a Tiger Moth in fight with Godzilla.

Neither could another software supplier have a hope of winning the business. A public body wouldn't have a hope of barring a monopolist. Elected MEPs have found they have no hope of doing anything about it.

If EC competition rules can't prevent public money from being used to sustain a market-stagnating monopoly, then what will?

Microsoft was unavailable to comment. The EC has asked Computer Weekly to stop asking questions about its multi-million-Euro public contracts.

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