The European Commission has been forced into extraordinary negotiations with Microsoft because it is locked in to using the vendor's software and standards.
The negotiations, concerning the purchase of Microsoft's Windows 7 operating system for 36,000 computers at the commission and 41 other European agencies, are proceeding under an exceptional clause of competition law that allows the commission to exclude other software vendors from a chance of winning the business.
A spokesman for the commission's Directorate General for Informatics (Digit) says the negotiations are justified by Article 126(g)(1) of the European Financial Regulations, which allow government agencies to subvert the competition rules when there is no alternative.
He insists the commission is not locked-in to buying Microsoft software, and that it will seek to get the best deal for taxpayers in the negotiations.
"Locked in suggests there is no escape, whereas alternatives are considered each time," said the spokesman. The market evolves, he said, and therefore always leaves the possibility that alternatives might be viable in the future.
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The exception allows European governments to buy "partial replacements" or "extensions" of incumbent systems when the alternatives would cause "incompatibility" or "disproportionate technical difficulties".
In the case of an operating system such as Windows, the difficulties would result in incompatibilities with the other application and communications software, much of which would be designed to work on a Microsoft operating system.
Karsten Gerloff, president of campaign group Free Software Foundation Europe, said: "Digit is arguing it would be too costly to replace the commission's current proprietary platform with anything but a new platform from the same vendor. That's pretty much the definition of lock-in."
Gerloff claims that Windows 7 isn't merely a partial upgrade, it is an entirely new system and its purchase in this way cannot be justified under European law. He says the move also contradicts the commission's Digital Agenda, which puts interoperable IT systems at the head of a plan to reap the economic and social benefits of computer technology.
Commission vice-president Neelie Kroes cited vendor lock-in as one of the motives for the Digital Agenda when she was campaigning for it last year.
"Many authorities have found themselves unintentionally locked in to proprietary technology for decades," Kroes said in a speech in June 2010.
"After a certain point, that original choice becomes so ingrained that alternatives risk being systematically ignored, no matter what the potential benefits. This is a waste of public money that most public bodies can no longer afford," she said.
The situation is similar to one that pioneering UK local authority Bristol City Council found itself in last year when it bought Microsoft software for 7,000 computers. The council gave up striving to use alternative software after five years, because so many other systems used incompatible Microsoft software that its efforts were rendered futile.
The Digit spokesman says things may be different in three years, echoing precisely Bristol's words when it made its decision in September.
Digit insists it has still not finally decided to proceed with the Windows 7 upgrade and cannot be deemed to have done so officially until it makes a contract decision under Article 147 of the Financial Regulations.
The decision for the Microsoft negotiations to proceed did nevertheless rely on Digit recording a preference for the upgrade. The European Parliament, one of the largest agencies participating in the commission's buying consortium, has meanwhile stated that it has opted for a Windows 7 upgrade and it can do this regardless of the commission's preference. It would still rely on the completion of the Commission's deal with Microsoft.
The Commission spokesman says a deal with Microsoft has to be concluded by 31 May when its existing Microsoft licence agreement runs out. But the commissioning officer would be required to reassess whether the non-competitive deal was justified after negotiations concluded.
A Microsoft spokeswoman said it was not its business to comment on EU procurement decisions.
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