Debunking Procurement Myths About Open Source Software

This blog post is an excerpt from GovLoop’s recent guide “7 Open Source Myths Debunked.” We spoke with a dozen government technologists, lawmakers and other experts to debunk common myths and help your agency make fact-based decisions about using open source. To view other myths, resources and facts about the state of open source adoption in government, download the full guide here.

One common myth is that open source is not commercial software. The rumor mill is that agencies have to decide whether they want commercial software or open source software. Plus, open source software licenses are not compatible with government acquisition regulations.

Here are the facts.

Open source software is almost always classified as commercial software, according to the Federal Acquisition Regulation (FAR) and Defense Department’s supplement to the FAR.

The FAR makes clear that a commercial item is any item, other than land and buildings — also known as real property — that is used by the general public or nongovernmental entities for purposes that are not unique to government. Not only that, but the item must have been sold, leased or licensed to the general public.

Open source software meets those requirements. “In the law and the regulations, everything hinges around definition,” said David Wheeler, an expert on developing secure software who helped develop the DoD’s open source policy. “It’s important to understand that open source software is commercial software because it eliminates what I call open source software paralysis.”

Some people are crippled by the misconception that open source software licenses aren’t compatible with government acquisition. “If someone hasn’t had any experience, it’s just an easy way to deflect something you maybe don’t understand,” said Deborah Bryant, who also leads the Open Source Initiative’s public policy working group.

For anyone who isn’t compelled to have these conversations, Wheeler noted that the federal regulations state a preference for commercial items.

“You are required, and not just in government but your contractors … are required to look at the commercial item,” he said. “And since open source software is commercial, they’re required to look at open source. So, let me emphasize that another way: If you’re a contractor for the government and you’re not looking at open source software, you are disobeying the law — that simple. Now, do you have to use it? No. But you have to look at it and consider that option.”

Daniel Hanttula, Vice Chancellor of Innovation within Oklahoma’s Office of Management and Enterprise Services – Information Services Division, noted one caveat that government employees in his state must keep in mind. “We have a challenge where individuals and police are not allowed to accept licensing agreements,” he said.

The reason is most licensing agreements state that if there is a disagreement between the person selling the software and the buyer, the buyer most go to the seller’s state to resolve the issue. It’s against the law in Oklahoma for a state employee to agree to those terms.

“My biggest warning … for anyone who [is] going to undertake this sort of initiative is befriend a lawyer on your team,” Hanttula said. “Go to your legal counsel at your agency, and have them review software license agreements as the very first step.”

Some quick tips:

  1. Coordinate upfront with your agency’s general counsel and have them review the software license agreement.
  2. Establish the basics with your staff, including the fact that open source software is commercial software.
  3. Consider creating an open source policy for your agency that establishes requirements to thoroughly evaluate open source software solutions when acquiring software and to consider the use of open source development practices.

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