Swiss Open Source Decision Going Microsoft’s Way

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But the case isn’t over yet argue legal experts and there is still room for an appeal

A preliminary ruling around the legality of the Swiss government’s decision to allow a software contract to be awarded to Microsoft without any other vendors being asked to tender has found in favour of the tech giant. But open source supporters should still hold out hope, according to legal experts.

According to comments sent to eWeek Europe UK by the Swiss law firm, BCCC AVOCATS, last month the Swiss Administrative Court reportedly rejected the claim filed by 18 open source software providers against the Swiss Confederation’s decision to renew a three-year agreement with Microsoft to supply servers and desktops to the Swiss Federal Bureau for Building and Logistics.

“In a preliminary ruling, the Administrative Court rejected the claim on July 2, 2009 that required the Court to suspend performance of the renewed agreement,” said Michel Jaccard, a partner at BCCC.

However, according to BCCC, the decision is not final and there could be room for open source providers to break what they perceive as Microsoft’s unfair dominance over the contract.

“A careful reading of the decision indeed leaves room for hope for the OSS community. While the Administrative Court refused to suspend the performance of the agreement renewed by the Swiss Confederation with Microsoft (as this would hinder the public interest related to the good performance of public services), the Court nevertheless ruled that the case had some merits,” said Jaccard.

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In May this year, Linux vendor Red Hat, and 17 other vendors, protested what they claim was a Swiss government contract given to Microsoft without any public bidding. The Red Hat group asked a Swiss federal to overturn a contract issued to Microsoft for 14 million Swiss Franc (£8 million) each year. The contract, for “standardised workstations”, was issued with no public bidding process, Red Hat’s legal team reported in a blog – because the Swiss agency asserted there was no sufficient alternative to Microsoft products.

One aspect of the latest findings which should please open source supporters is the fact that the court admitted that the Swiss Federal Bureau For Building and Logistics’ IT contract should fall under normal procurement policies that claim that projects should be open to tender.

However, BCCC also explained that there are exceptions to the procurement process where the services “can only be delivered by one provider either for technical or intellectual property considerations” which appears to have happened in the Microsoft case.

“The Administrative Court hasn’t made it’s final ruling yet but even if it finds in favour of Microsoft, there is still room for appeal. No matter what the ruling will be, an appeal will likely be filed to the Supreme Court, whose final word will have substantial significance in the future for public authorities with regards to computing services,” said Philippe Gilliéron, an IP lawyer at BCCC.

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Commenting on the case on the Swiss case, and other countries where lobbying has effectively made Microsoft and other proprietary software the only choice for government IT projects, Florian Schiessl, deputy manager of the Munich LiMux project, said there has to be political will to push through change.

“Our politicians decided to have independence – we have the political backing. If there is no political backing – I know from many, many projects in the principalities and in the federal government and so on – then you have a real problem,” he said.


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