The open source lobby has challenged the €189m software contract struck by the European Commission last month.
The contract is the largest ever software deal made by the European Commission (EC).
The Free Foundation Software Foundation Europe (FSFE) threw down the gauntlet in a letter sent yesterday to Francisco Garcia-Moran, director general of the Commission's Directorate for Informatics (DIGIT).
The letter also pulled apart a defence Francisco Garcia-Moran made last week for the policy by which the Commission organises the expenditure of hundreds of millions of Euros on proprietary software.
Karsten Gerloff, FSFE president, suggested the EC's €189m SACHA II contract might be impermissible under European procurement law.
SACHA II had, in its call for tender, requested the supply of 251 software products by specifying their trademarks. The practice is illegal because it prevents suppliers with competing trademarks bidding for public work.
SACHA II's call for tender had declared an intention to buy specific trademarks "or their equivalent", a proviso public procurers use to bend competition rules.
"While this may or may not satisfy the letter of the law," said Karsten Gerloff's letter, "they are certainly not conducive to competitive bidding by a large number of providers of different software programs."
Non-established suppliers have long sought to wipe trademarks from procurement. Such suppliers have proposed public calls for tender specify instead desired generic functions any supplier can try to satisfy, regardless of their brand.
SACHA II had arranged for the supply of a long list of proprietary software at specified prices through Netherlands-based PC Ware. It established 38 European public agencies with supply lines and terms for software products such as Adobe's Creative Suite, Autodesk's AutoCAD, EMC's Network Server Power Edition, IBM's Tivoli Asset Manager, McAfee Active VirusScan, Oracle's WebLogic Server, SAP Web Intelligence and Sybase Powerbuilder.
"We are surprised that DIGIT found itself unable to provide a 'sufficiently precise and fully intelligible description' for any of these products without resorting to product names and trademarks," said Gerloff.
He compared SACHA II to controversial tenders that in 2004 led the European Commission to charge various public authorities with discrimination under competition law over their tenders for "Intel or equivalent" computer processors.
Open source companies may have found it impossible to tender for the supply of the numerous trademarked software programs tied up in the SACHA II contract, he said, referring also to the €49m deal the Commission struck for the specific supply of Microsoft software in 2008. The Commission was forced to defend the Microsoft contract from accusations of illegality as well.
Garcia-Moran wrote to Gerloff last week with a robust defence of the contract and DIGIT's track record of buying open source software and promoting competition among its IT suppliers. He gave a long list of open source systems the EC used daily.
But Gerloff's retort yesterday left the Commission's defence in tatters. The EC's open source references were useless without context: the EC claimed, for example, that it used 350 Linux servers, but did not specify the total number of servers managed under SACHA II and other proprietary software contracts.
DIGIT, said Gerloff, should make greater efforts to use open source software and open standards for the sake of interoperability, transparency, competition in software markets and greater participation of European SMEs who would have little hope of competing with trademarked vendors in €multi-million software contracts.