OpenForum Europe (OFE) welcomes the publication of the Public Procurement Act legislative proposal from the European Commission. This proposal marks a positive move towards a more sovereign and independent Europe, introducing for the first time a strong horizontal legal basis for public buyers to prioritise European producers, new procedures for procurement and specific open source requirements for the soon to be developed Commission eProcurement service.
“The Public Procurement Act proposal published today is genuinely encouraging. Moving the default from lowest price to best price-quality ratio is not a technical adjustment. It is a structural shift that removes the single biggest barrier open source vendors have faced in public procurement for decades. For the first time, quality, innovation and long-term value have a mandatory seat at the table. Combined with the open source first principle in the Cloud and AI Development Act and the EU Open Source Strategy’s procurement guidelines commitment, this could create the architecture for a public sector that can actually act on its sovereignty ambitions rather than just stating them. The real test will be in how ‘quality’ is defined in practice and that is where the open source community needs to be present and vocal in the months ahead.” – Laszlo Igneczi, Executive Director, OpenForum Europe
This proposal is designed to use public buyers as a market-shaping instrument, while highlighting the importance of digital sector legislation such as the Cloud and AI Development Act, Cyber Security Act 2.0 and the Chips Act 2.0 to remain aligned with this Regulation during the Ordinary Legislative Process (Explanatory Memorandum). OFE looks forward to continuing engaging with the institutions and relevant stakeholders on this topic with the aim of helping to promote and foster the continually growing role of free and open source software in the public sector.
The Case for Overhaul: Why do we need public procurement to be revised?
Currently on the EU level, the framework for public procurement consists of three directives: one of general application, one for the water, energy, transport and postal sectors, and one for concession contracts. However, this structure has been identified as inconsistent and burdensome. The reform of EU public procurement into a simplified single Regulation offers an opportunity to advance digital sovereignty, move away from lowest price purchase requirements (Article 98(4)) and make it easier for public buyers to procure open source software.
With around 15% of the EU’s GDP being spent on public procurement, this reform offers a real opportunity for the open source community. The published proposal shows promising signs with it expressly viewing procurement as a “powerful policy lever” (Explanatory Memorandum). The Commission itself found that the current framework does “not significantly improve legal clarity or flexibility”, while “cross-border participation within the EU remains limited”. OFE believes that this proposal is a step in the right direction, with the proposal making public procurement clearer while providing more flexibility and clarity to public buyers and vendors.
The Main Changes: How does it impact open source?
One of the most significant changes is the transformation of public procurement legislation from three separate directives into one regulation. The uniformity of this regulation should promote cross-border participation in tendering processes, supporting the growth of open source vendors. In particular, the requirement for buyers to describe the characteristics of the solutions they seek in functional terms (Article 88(3)), rather than naming products (Article 88(5)), gives open source vendors room to propose solutions the buyer had not envisaged. Furthermore, the requirement that the Commission releases its own eProcurement solution as open source software (Article 132) is an exemplary addition, showing the value of open source as a vehicle for developing public administration tools.
OFE also welcomes the explicit recognition of open source as a meaningful tool for innovation throughout the proposal. “Open source solutions for digital systems and elements of public services” is directly mentioned and noted as an innovation objective (Article 59(b)). Public buyers are specifically encouraged to “consider the purchase of open source solutions or solutions with open source elements” in order to achieve innovation objectives (Article 61(1)(b)).
The targeted effort to prevent vendor lock-in is another positive development. The mandatory granting of non-exclusive licences to public buyers is a meaningful anti-lock in provision. (Article 63). It ensures that public bodies retain the right to have their software maintained, adapted and upgraded by any vendor and not solely the original supplier. For the open source community this is particularly welcome as it creates a basis that is closer to what open source licenses already guarantee by default, meaning the freedom to use, modify and share. It also removes a concrete barrier that has historically prevented public bodies from switching open source vendors for the maintenance of existing systems.
There are now special provisions in place to allow for the prioritisation of European vendors. While OFE encourages the emphasis on promoting European companies in public procurement by introducing non-compulsory European preference options, we believe further clarification on how this will interact with the provision of software are needed. Open source is a global effort and it is impossible for it to be solely European made. For public procurement rules to be aligned with sectoral legislation, then a special link with the recent Open Source Strategy needs to be drawn. OFE has previously argued that this strategy needs to be used as a foundational reference for upcoming policy actions.
Looking forward: What now?
With the proposal now opening the legislative procedure in Parliament and the Council, OFE will continue to call for the measures set out in our response to the call for evidence, including explicit confirmation that buyers may require open source licensing and open standards, sovereignty defined through assurance rather than supplier origin, and recognition of second-source capability as a legitimate award criterion for software contracts.
