Who: Project Manager within a large US Agency

Success with procurement of FOSS:

• Full understanding of FOSS isn’t clear with procurement staff, but as long as the procurement goes successfully, and I am able to address certain issues, FOSS can be procured without causing any concerns with procurement/legal staff.
• Because no major problems have occurred with the ongoing procurement of FOSS, there has not been much pushback from procurement/legal staff as to further procurement of FOSS.

Tension with understanding the business model of FOSS:

• The cost of extending/customizing FOSS software is perceived as a free contribution back to the code base of the FOSS project without really understanding the overall benefits in such a “contribution.” While the costs themselves don’t weigh against selecting a FOSS solution, there is a lack of clarity about the value of what IP is being given back to the public, and whether this IP could be more lucratively leveraged to offset costs or otherwise net income for the agency.
• FOSS is valued by the senior management for its ability to freely alter or modify code because it’s open. However there’s a perception that rather than follow a FOSS model, agencies could license IP to each other, and in this way also be empowered to more or less freely alter or modify code.
• Procurement staff are comfortable with proprietary software licenses that are expensive, but scrutinize development labor costs on a FOSS project much more closely. There is a tendency for any labor related expenses to understand better the exact kind of labor that is being done, and the itemization of this labor as it is being charged per hour.
• Similar to proprietary contracts, FOSS development contracts also have a separate charge for support/maintenance of the developed software.
• While overall there is understanding that FOSS can be a cost-saving or otherwise beneficial solution for government software needs, the specific reasons why this is so are not well understood. The main concern always comes back to what benefits the agency gains from keeping the developments to the FOSS code freely available to the public when the agency has invested all of the money in the developments.
• To this end, the Project Manager said it would help the procurement process move along faster with FOSS projects if he had available to him, some well researched and written explanations which set forth the full benefits of the FOSS business model, so that agency lawyers, procurement staff, and management can clearly understand the value in having code developments made public.

Indemnification issues:

• Most IP liabilities are resolved through indemnity clauses in the contracts, so they aren’t a huge issue.
• Large vendors typically do not have a problem providing indemnity for the agency for IP issues - be they trademark, copyright or patent.
• Small vendors sometimes cannot afford to provide indemnity for all issues, and in one case, one smaller vendor refused to provide indemnity for patent infringement. The agency ultimately agreed to a contract without patent indemnity because the agency believed that the risk of infringement was low.
• This agency has consulted with an outside organization providing pro bono help regarding patent Non-Practicing Entity issues (NPEs). Such organizations include the Public Patent Foundation.

Barriers to Procuring FOSS:

• While FOSS may be free to download, staff at the agency do not have the permission to install software on their desktops. Therefore, IT staff must be consulted at least for security access for installation purposes.
• The desktop installation access is locked down to prevent illegal copies or unlicensed copies of proprietary software from being installed on agency computers. In order to allow the installation of the FOSS software, the Project Manager had to produce the FOSS license to the IT staff in order to prove that the software was indeed, a free license.
• Some downloading of software is blocked by firewalls, but the purpose behind these lockdowns is not related to procurement.

Support Concerns of FOSS:

• Agency procurement staff, at this large agency are concerned with the viability and long term support and development of FOSS, in their decision as to whether or not to procure the FOSS software. The Project Manger believes that it comes down to how much do you trust the people that are delivering the solution - the FOSS community or the vendor that is developing the software.