This Webinar is part of the 13th edition of the EOLE conference which is held online this year due to the worldwide pandemic.
Initiative born in 2008 the European Open Source & Free Software Law Event (EOLE) aims to promote the share and dissemination of legal knowledge related to free software, as well as the development and promotion of good practices.
For this second webinar, which focuses on « Public sector collaborations around FOSS projects », the speakers responded to the questions : How can public administrations work together? What approach should they take? The Speakers take into account past experiences and recent legal development to highlight the important aspects that need to be considered when public entities are collaborating on a free and open source software project.This webinar is divided into the five following parts:
- 1. Performing ICT Services through Cooperation among Public Administrations - Barbara Gagliardi (00:10:28)
- 2. Open source in Barcelona – from the City point of view - Marc Pérez-Batlle (00:29:12)
- 3. Improving code sharing between councils - Andrew Katz & Finn Lewis (00:45:23)
- 4. Building a Public Administration community – do we need an agreement? - Malcolm Bain (01:08:00)
- 5. Question time (01:16:42)
Public sector collaborations around FOSS projects
To begin the webinar Malcolm Bain invites the audience to share what they think are the main challenges cities face when collaborating on an open source project.The audience raises a few different points:
- Lack of knowledge about procurement rules, limited resources, lack of guidance
- Getting political support
- It is easier for governments to define their needs and put it out for paid proposals than to find and engage in an Open Source Project.
- Money, funding
1. Performing ICT Services through Cooperation among Public Administrations - Barbara Gagliardi
Barbara Gagliardi is the first speaker, she is a professor of administrative law in Torino. She has been working on the legal framework of collaboration around FOSS projects.
This presentation answers the following questions: According to EU law, is cooperation between public entities possible in the ICT sector? Is it mandatory for them to apply EU rules on competition in this context?
Contracts between public entities and awarding rules
It is well known that a public entity can be considered an economic operator. The 2014 EU directive on public procurement and repealing (Dir. 2014/18/EC, cons. 31), explicitly says that the sole fact that parties to an agreement are public entities does not in itself rule out the application of procurement rules. Public procurement rules apply to all contracts for pecuniary interest concluded in writing between an economic operator and contracting authorities and having as their object the execution of works, the supply of products, or the provision of services.
The notion of "economic operator" is very large: «'economic operator' means any natural or legal person or public entity or group of such persons and/or entities (…), which offers the execution of works and/or a work, the supply of products or the provision of services on the market » (Dir. 2014/18/EC, art. 1, § 1, n.10).
Therefore, a public entity could be an economic operator. The public status of an entity is not in itself enough to exclude procurement rules.
The principle of self-organization
The EU recognizes the right of self organization, a public operator can choose between using its own resources or awarding a contract to an economic operator. A public operator can choose to use its own resources through in house providing or through cooperation.
Both options can be the expression of the principle of self-organization, and both have been explicitly recognized by the 2014 directive and represent an exception to public procurement rules. In both cases, a relationship with the market is completely lacking. Hence, for a public operator, contracting out is not mandatory. The market is not the unique option open to public entities. However, quite often, especially in Italy the legislators suggest the opposite, EU laws allow to use different.
This presentation won't talk about in-house providing in great details as it has been deeply studied. It was also decided by the European Court of Justice (ECJ) in the Techal case from 1990.
This case established that in house providing allows performing a service through a separate organization when two basic conditions are fulfilled:
- 1. The public authority exercises over theses organization a control similar to which it exercises on its own department;
- 2. The organization carries out the essential part of its activity with the public entity.
The notion of cooperation in EU law
The notion of cooperation covers a different situation. Cooperation can take an institutionalized form (through a consortium, public venture, etc.) but can be also enforced by a contract, similarly to a consumer buying group. The later was the context from which the ECJ decision of 2009 (SEE ECJ, 9 JUNE 2009, C-480/06, COMMISSION V. FEDERAL REPUBLIC OF GERMANY).
This decision was about the cooperation of the city of Hamburg and 4 other local entities, in order to perform jointly the service of waste disposal. The city of Hamburg built a facility with a large capacity for waste management and concluded a contract with other local entities in order to process their waste. The local entities paid an annual fee to the city in order to reimburse the charges paid to the operator by the city of Hamburg. The contract was advantageous for both. Local entities benefited from the waste disposal service, and it allowed the city of Hamburg to exploit the extra capacity of the incinerator, and achieve a higher level of efficiency.
At first, the commission viewed the contract as a violation of EU procurement rules. As they did not control the operator to the same same extent that they controlled their departments, the relation between the facility operator and the local entities did not satisfy the condition required for in-house providing. However, according to the court there wasn't any violation because the contract wasn't a in house providing contract. The situation conformed to the hypothesis of a horizontal cooperation, useful for all the parties in order to perform jointly the same services.
All the following conditions should be fulfilled to establish a cooperation according to EU law:
- 1. First of all, the contract establishes or implements a cooperation between the participating contracting authorities with the aim of ensuring that public services they have to perform are provided with a view to achieving objectives they have in common; (this means that they have to establish jointly their needs and the solutions to be adopted.) This is very different from acquiring a service in return of the paying of a fee;
- 2. The implementation of that cooperation is governed solely by considerations relating to the public interest. (All financial fees should only be equal to compensation for the cost and not payment.);
- 3. Finally, the participating contracting authorities perform on the open market less than 20% of the activities concerned by the cooperation.
It is an interesting instrument as it makes cooperation possible between authorities among member states. Member states and local authorities can use it in order to exchange experience and achieve a higher level of professionalism for example.
Cooperation and ICT services
To better understand the issue it is helpful to recall a recent recent case from the ECJ decided in May 2020 (ECJ, 28 MAY 2020, C-796/18, ISE mbH). This new organization gave the opportunity to deeply think about cooperation in the ICT sector. It is another German case concerning 2 contracts between the city of Cologne and the Land of Berlin. Those contracts were for the transfer of a fire service operations management software to the City of Cologne free of charge, and for cooperation with a view to the development of that software. The Land of Berlin previously acquired the software from an ICT company, it was a licensed software. The contract allowed the Land to transfer the software to public entities free of charge. But another ICT company sued the contractor on grounds of failure to comply with public procurement rules.
The basis of that failure was, according to the ICT company that: "the procurement of the base software entailed the commissioning of the producer with follow-up contracts, as it alone would be able to adapt, support and maintain the software."
In the view of the court as both the parties have a reciprocal obligation to develop the software, and to provide those development to other parties free of charge, this was considered a horizontal cooperation.
Cooperation can cover all types of activities related to the performance of public services assumed by the participating authorities. It can also cover «ancillary activities» such as the adaptation of a software. In the view of the court such software, activities of development, used for fire tracking service operations in firefighting, for technical assistance, for emergency rescue and disaster control, seems essential and not ancillary.
At the same time it is also true that, for the court, the adaptation of the software is a complex concept that requires knowledge, which often only the publisher has. So according to the court, in order to comply with the EU procurement rules, this kind of cooperation requires that both parties have the source code and that they can communicate it to potential candidates in a tender or other parties. It also requires that the access to the source code is in itself a sufficient guarantee of the public procurement principles.
Very often, negotiated procedures are used in order to conclude contracts of assistance in management of licensed software.
Open source software could be the better solution to facilitate cooperation between public entities without violating EU law on public procurement rules. It allows avoiding situations where a private service provider is placed in a position of advantage vis-à-vis its competitors.
2. Open source in Barcelona – from the City point of view - Marc Pérez-Batlle
Marc Pérez-Batlle is the head of technological innovation projects for the Barcelona City council where he manages open source projects and collaboration with public entities.
This presentation focuses on the strategy they have from the last mandate, it shows some success stories they have and, from there, which topics need modification in order to maximize the success of having FOSS projects in public services in local government.
2015-2019: Barcelona City Council Digital Plan
The Digital plan was a government measure for open digitalization. Its aims were:
- Promoting free and open source software in municipal systems. One of the main objective was to have 70% of the produced code source to be FOSS, so not only by mandate but also by generating the ecosystems and the communities needed to support this code. It was also important to have transparency and be able to duplicate these solutions into other regions and city councils.
- Promotion of the development and delivery of agile, open and ethical digital services.
Barcelona City Council developed guides on how to manage this kind of FOSS projects, not only from the coding point of view, but also from the governance point of view. Taking into account all the pieces that should align in order to make the project move forward.
Decidim: Decidim is a platform for participatory democracy, built exclusively in a collaborative way in free software. This platform is used to make participants decide participatory budgeting etc. There have been more than 30 replications at the city level (Helsinki for example). Other smaller cities, regions, but also private sector entities have replicated and used this platform. This shows one of the main advantages of FOSS projects: the initiative only needs a slight push to make the whole mechanism start moving on its own. Furthermore, starting a collaboration between authorities also implies collaboration with the private sectors. In case public collaboration is not enough, (for example to adapt a platform from one city to the other), it may create activity for the private sector.
Sentilo: This project started before the mandate but it was also developed fully open source. They use this kind of collaboration between different regions to make sure that the code they are developing can work in different regions and can be used to its full capacity everywhere. Sentilo is a sensor platform, which allows the city to control and manage all the sensors in the city. There was also an important amount of work in ensuring that all sensor providers were Sentilo compliant. It is currently working in Barcelona and was adapted in other cities.
Ethical mailbox: Ethical mailbox is a platform that is also based on open source software. It is used to denounce malpractices from the city council by using technology that allows anonymity of the person filing the report. This platform was also replicated in other cities. This project was developed directly with the civil society, by collaborating with civil organizations in Barcelona.
- Replicability of the project;
- Cost efficiency;
- Reinforcement of close collaboration with local entities;
- Reinforcement of national and international collaboration, as this kind of production can be personalized for the different stakeholders.
Disadvantages / areas of improvement:
- Different local government will have a lot of different specificities that are local and unique: it is difficult to replicate those specificities. It is also difficult to create a general context. Hence, it is not a matter of just procuring a source code or software, this solution is not optimal. FOSS projects need to be developed from the beginning in a FOSS mindset, to ensure that the replication is then a success;
- Therefore there is a need for community. Another obstacle to go across can be community engagement: especially in smaller cities, where the community is smaller, hence the number of developers is also smaller;
- Coordination both externally and internally.
- Make sure there is internal coordination by exploring open source projects currently in production;
- here are plenty of other FOSS success stories, the goal is to spread the word;
- Changing the way they start projects. They tend to start project from scratch, is would be better to find existing projects and adapt them to the community and the local needs. It is not currently well done in Barcelona, they need to prepare a common procedure to make sure they can maximize and replicate.
3. Improving code sharing between councils - Andrew Katz & Finn Lewis
Andrew Katz is a lawyer advising on open source, he has also been working with Finn Lewis on a number of projects over the years. Most recently on a project on code sharing, his involvement in the project has been around aspects such as licensing and governance. Finn has been involved in other, more technical aspects and for a longer time.
Finn Lewis is from Agile Collective in Oxford, he is a long term Drupal developper, which is an open source CMS.
How LocalGov Drupal started
Two councils in the UK (Brighton and Croydon) were sharing code and realized it was beneficial. The Ministry of housing communities and local government (MHCLG) published the Local Digital Declaration, which encourages collaboration and sharing among councils.
It encourages local governments to commit to a few key points:
- Reuse research, service design, common components, data and technology standards before starting to design or procure something new;
- Share knowledge about digital projects where there is an opportunity for potential reuse or collaboration with others;
- Operate according to the technology code of practice (UK central government document). which encourages to "be and use" open source. To this day, half of the councils(240) in the UK have agreed to be open source.
The Local Digital Fund (also from the MHCLG) also helps in that process. The Ministry committed seven and a half million pounds over 2 years to digital skills, but also to foster collaborative projects. This is what allowed LocalGov Drupal to get funding to get started.
The Ministry of housing funded the initiative and 6 city councils were involved at the beginning. The original funding was of 75,000 pounds, which was fairly lightweight. The alpha phase, was the phase during which they had to find out what was going to work properly and how to help councils co-develop share and maintain open source Drupal code for their citizen facing websites.
They conducted primary research with councils, by desk research and technical audits to understand the needs and assess what was technically feasible.
Findings of the research phase
- 1. Councils found it hard to continually improve their websites, for multiple reasons, some were managing their websites internally others externally.
- 2. The problems were mostly common problems which made sharing attractive.
- 3. It was agreed that open source was a good approach and Drupal was a good framework to achieve this sharing.
- 4. The councils all started with different levels of understanding, it often depends on the size of the council. Smaller councils didn't necessarily have the in house expertise nor a technology department. They would go to a commercial provider. Larger councils tended to have larger internal organizations that understood software development better.
- 5. Councils expect a piece of paper but not a weighty agreement. They wanted cooperation to be as simple as possible. That is where the Memorandum of understanding came into play. They wanted the document to frame the collaboration in a simple way, without it having to be scrutinized by their legal department.
- 6. Councils want a clear product direction, in order to know where the particular development of a technology is going, so they can plan appropriately. They needed a clear roadmap in order to plan appropriately.
- 7. Councils were also concerned about obtaining external support.
- 8. None of the councils wanted to buy Localgov Drupal as a service. (There is the possibility of having Drupal as a software platform, by subscribing to it, essentially for those without the technical skills.) They did not find any evidence to support a need for that. The Drupal team only spoke to 30 of all the councils, so there may be a need for that service later.
- 9. Teams need approval from their senior leadership. This means that the proposition needed to be sold easily internally. In-house departments were really knowledgeable and understood open source. However, they needed help to sell that to the management team. Hence, part of the job is to provide a straight-forward framework for those internal teams to give to their management.
- 10. Councils have website challenges that code sharing alone won't save.
From a governance perspective, there was no need for an incorporated body, but they agreed on a memorandum of understanding. Licensing models can be complicated.
The Memorendum of Understanding (MoU)
They considered some of the major criteria that they thought the councils really needed to be aware of. They created a pretty short document giving a basic framework when they are cooperating.
- The fundamental purpose is to establish and grow a group of councils to develop, share and maintain the open source Drupal code, which is achieved by reusing existing knowledge. The idea is to make it as easy as possible for citizens to access council services and for councils to provide information to those citizens. The goal was also to show how collaboration between councils could work. They were very conscious that if this worked effectively, (even though Drupal code is a narrow field) it is an approach that they could adopt in a number of other fields. The agreement is non-binding, which makes it easier for councils to sign up to it.
- The Values are mentioned which are: open culture, working in the open, sharing, working collaboratively, publishing the work under an open source license... They also agreed to maintain a common codebase, and to not keep any improvements to the common codebase private. The councils might want to keep their very specific requirements but the idea was that if it is possible to make it public then it should be made public. Also agreed to welcome outside contribution not only from public bodies but also from anybody who wishes to collaborate. In addition, they recognized that they were part of an international movement and community, hence, any body is welcomed to reuse the code.
- Intellectual property and the licensing : They agreed that the license would be open source. For the code, because Drupal was under GPL v2 or later, they decided to keep it that way. The documentation is shared under creative commons. Potentially other aspects could be GPL V2 also, everything is thought to be open source to the core.
- Governance is designed to be very lightweight and straight forward, they did not intend to have a constitution or anything of the sort. It was thought to be a much lighter weight mechanism to develop a government product. The administrative body is split into a technical group and a product group (that would deal with product governance and process).
- Joining/leaving: other councils have to agree for another council to join, anyone can quit anytime without any notice. After leaving, a council can still retain access to the common code base.
- Commitmentis required mostly in terms of time and resource, not financially. This part was intentionally left pretty vague.
- Finance : there is no plan to hold money
- Future direction : They hope and expect to move to a more formal foundation model when appropriate. This may develop into a business model, incorporating a separate body, which could help provide services in terms of support etc. There is also the option of partnering with a commercial entity.
Where are we now?
8 councils have built their website with Drupal, and 4 have launched them, all of which was not there a year ago. They are currently between the alpha phase and the beta phase, and hope to be funded by MHCLG Digital Fund from January.
The Documentation Website was launched : https://localgovdrupal.org/. This website is where the values of the project are visible. Accessibility, testing, other knowledge sharing between the organizations are all happening there.
Next year they are hoping to push for more accessibility, more functionality, and to get more councils involved. This work was potentially only the tip of the iceberg. They are hoping for both further development within the specific requirement of the content management system but also looking at other opportunities for collaboration between open sector bodies in the UK and beyond. Hopefully this project paves the way for other people to repeat it.
4. Building a Public Administration community – do we need an agreement? - Malcolm Bain
Malcolm Bain has been working for many years on open source projects with the Barcelona city council, he highlights 3 projects: Sentilo, Decidim, GDMatrix.
The structure of these projects all start from the same place: a public authority puts out a bid to create a product that they needed. This is very different from Drupal which is built on an existing platform.
Sentilo: Sentilo is a sensor (light, sound etc.) data management platform. The city council looked at other projects and decided that they needed to build a new product. They set up a formal government structure with technical committees, product committees and even a membership committee but there is no formal agreement. The cities which want to participate just have to send a letter to express their wish to be part of the Sentilo community and simply download the code which is developed on GitHub. It is still financed by Barcelona but different cities in Catalona , AbuDabi, Wellington (in NZ), Manchester,... are implementing it. They commit to a central code, which is managed by a public tender. The agreement is very lightweight, there are government documents but no umbrella agreement managing the collaboration. Everything is on a voluntary basis, which may be where some of the challenges come from, as there is a certain lack of structure and governance..
Decidim: This platform is a platform for citizen participation. The approach for Decidim is quite the opposite of the Sentilo approach. From the beginning, there was a very strong social contract which set the rules of the collaboration. The city Council agreed that for every 15 000€ put into working on the Decidim platform, they would also put 5000€ into the common budget. This common budget was dedicated to building the next priority in the backlog. The communication is very open and everything is public, including the prioritization system. This was then divested, Barcelona handed over the management to a private association (non profit) in Catalona, under a private public partnership agreement between the city of Barcelona, the regional federation of councils and the association. Now, in order to join, an interested party has to send a private letter to join this contractual arrangement. The association has a 3 years mandate, which means that at the end of this term the project will probably go to public tender. So overall, the agreement for this project is very formalized.
GDMatrix: This project is a recent project, it was initiated to create an internal document management system. GDMatrix has been built over the last 7 years, and has been shared with other cities with formal contractual arrangements. Hence, it is licensed to the other cities, with no other obligation towards collaboration. The model was very centralized and hierarchical, they set it up and shared it with other public administration. They now want to go public and Malcom Bain is helping them with setting up the process and a governance structure. They are hesitant between two different frameworks. They could choose either a more relaxed framework resembling the Drupal MoU or a more formalized agreement that cities can adhere to and could be sponsored by the provincial government (Diputació de Barcelona). One of the specificities of Spain is that if a city wants to dedicate officers to a project, they only can go forward if they have a specific public mandate or a formal collaboration agreement with other cities. It is a very formalist approach which is quite different from the open source approach.
Malcolm Bain (MBA) introduces the question time with the following question:
MBA: What advantages and disadvantages do you see in formalizing through some form of agreement ?
Andrew Katz (AKA): The document is quite important because a lot of the development teams themselves want to get involved. It gives them a document to show to their management, to give a framework without a really strict and complex commitment that is too formal. It allows them to provide a succinct idea of what is involved and that it is being run properly. Finally, there is no financial commitment, it is really designed to make it as unscary as possible for the senior management.
MBA: They didn't have a problem committing resources, time and people to a project where there is no umbrella agreement?
Finn Lewis (FLE): As Andrew says, it is evolving at the moment. But something to commit to that is lightweight enough to get them involved, and then allows them to see who has resources to help developers to work on the project.
MBA: For example with Decidim, the cities can dedicate funds, which could not be possible under a simple MoU.
Barbara Gagliardi (BGA): In my administrative law professor's point of view, it is probably better to formalize. Because reciprocal obligations are binding and it could be a useful tool.
MBA: Let's imagine that Barcelona wanted to change its website with Drupal, would it be a challenge to get Barcelona on board?
Marc Pérez-Batlle (MPE): It depends on the priorities when signing this type of document. I always suggest to formalize, it is better to sign to avoid being dependent on volunteering. I think it is worth having something signed even if you have to lose time doing so because then you have all the administration aligned.
MBA: Another thing, certainly on the Decidim project: the idea to divest Decidim to an association was to guarantee sustainability irrespective of political flavor of the dominant city which is Barcelona. It also allows to widen the collaboration and reduces the influence of the single main sponsor, which is good in terms of democracy and transparency of the project.
MBA : There were some questions from the floor. Public collaboration can avoid procurement and can be more, on the basis of a common interest and a common solution. If you're doing development certainly depending on the profile of your IT department, for example Barcelona has very few people in the IT department, it's mostly external
MPE: Yes in fact, we don't have developers on the team.
MBA: On the Drupal project, does the Drupal group bring all the technical IT skills or do the councils have the project management, they understand how to technically manage the project?
FLE: Most councils have development teams who they work with, some may have full time employees. But most have contractors and contract with external agencies, like Agile collective or Microserve or other companies in the UK. They are familiar with the technical side of things. There is money being spent on collaboration rather than just on code that will only be used by one entity.
MBA: How are all these entities coordinated in an Open Source manner? Is someone designated as the project leader?
FLE: There is a product group and technical group. The technical group is usually making the decisions as to release, standards and other technical issues.
MBA: Some councils have specifically dedicated persons to play those roles?
AKA: Yes, it is not specified in the MoU, but yes people who are part of the technical group are part of people who can commit access, which is governed by the technical governors document. largely lifted from the notes foundation , distributed, peer reviewed, loosening up the control , distributing the power of keeping it going.
MBA There is another question from the audience: Is it Easier/tougher to create/initiate similar collaborations between national agencies vs local councils /cities?
MBA: I can answer that question a little bit. It is enormously easier at city council level at least in Spain. Creating projects such as this one at the national level is way harder. Cities have very common problems and challenges, so it is easier to look for a public interest in the common problem. They are more agile, closer to citizens, looking to develop IT skills locally. From my experience in Spain, it has been a huge effort for the open source center of government to actually get any national or regional entities to contribute. Andrew you're working with the UK government?
AKA: Currently any attempt to engage with the government is impossible, as other issues are prioritized. Some individuals in the government are very keen, but they can't do anything at the moment in the UK.
MBA: A while ago, France, public administration, Gendarmerie and military, the Senate were doing a lot of open source, publishing open source code.
FLE: It's interesting that sometimes these national level collaboration would come out of the central government seeing the local projects and wanting to join and collaborate. This has already happened with the HMRC open source project of the UK government, a lot of the tools were used by Canada, there is collaboration going on without necessarily being arranged.
MBA: Question for Marc, is identifying existing projects that are open source part of a specific agenda? Identifying existing solutions and looking at common repositories first is an obligation. The EU Commission has said it many times, it is in Spanish procurement law, it is in the open source decree. Is it happening in Barcelona ?
MPE: It should be, it's not a matter of what the law says, it's a matter of how the people who are technicians are conscious of that. There is a lot of work on explaining that it is mandatory. It is a work of talking to the technicians to change the mentalities.
MBA: Yes, a culture change in how the people approach building code is necessary. When discussing the agile methodologies document in part of the Barcelona digital standards, it had a huge amount of opposition, as changing the method of creating code was so alien. Also Finn, do you find that the agile methodology (which is the standard when developing open source) is quite difficult to work with in the public administration?
MPE: Yes that's the heart of the issue. It's a matter of time.
FLE: In the UK the government has been pushing on using that agile methodology. Now we see that the local declaration pushing that onto councils. There is a culture shift and digital shift from ecocentric to open source, it is happening but we need more.
MBA: Is there any more comment from the table? A suggestion that would help collaboration among administration? A way to progress?
FLE: I thinks there is a need for more funding, to give it the kickstart, it is progressing.
AKA: From my perspective, open source is all about reducing friction, trying to make it as easy as possible for people to collaborate and get involved. Other projects give people the chance to see the success and get the confidence to get involved.
BGA: I was thinking about a question asked by the audience which is crucial to this issue. In fact, access to the source code is not enough to push collaboration. This is right and the same thing was stated by the ECJ. We need to work on this, in the view of the general advocate, it's the original choice at the beginning of the process which is very important. We need to think about the technical aspect of the solution chosen in order to make cooperation easier.
MBA: Yes, as someone from the audience said, it's a matter of "building open" from the start.
MPE: My last recommendation would be that coordination matters. The successful projects have been done thanks to the coordination between the actors. For example Decidim was a huge agreement between politicians and technical staff and people in between. It is a matter of coordination to obtain that success.
MBA: It is all about people, personal skills are important, it's all about people to make the collaboration successful. Decidim did that by making sure there was communication among those people.