Following a legal action brought by ESOP to the Administrative and Fiscal Court of Almada, public tender no. 31A2012 regarding licensing and maintenance of Microsoft software costing up to 550.000,00 EUR was annulled. The tender, now deemed illegal, was launched by the City of Almada and prevented all the competing solutions from being supplied.
It is the first court decision of this type in Portugal. The court confirms that, according to the Portuguese Law, public tenders must include functional requirements and must NOT include specific brands.
The specifications of the tender released by the City of Almada prevented any company other than Microsoft (or intermediary companies engaged in the resale of licenses from this manufacturer) from submitting proposals.
Thus, all companies that do not provide software from that manufacturer, including the members of ESOP, were prevented from presenting proposals for the tender. This condition, imposed by the City Council of Almada, was considered unacceptable by ESOP, to the extent that it disregards the most fundamental rules of free competition and violates public procurement rules. In particular, it violates no. 12 of article 49 of the Portuguese Public Contract Code (C.C.P.), which enforces prohibition of “technical specifications which make reference to a specific manufacturer or source, or to a particular manufacturing process, to brands, patents or models and to a particular origin or production, which have the effect of favoring or eliminating certain entities or certain goods.”
Compliance with public procurement rules will enable the City of Almada to receive more and better proposals for the supply of software, including solutions based on Open Source. The Open Source solutions are fully able to meet the technological needs of the municipality and mean, in most cases, a dramatic reduction of software expenditure and overall maintenance related costs.
This action was brought under the statutes of ESOP, which “aims to promote, develop and boost the open source software market in Portugal and to defend the rights and legitimate interests of companies in the sector, being entitled to develop all activities suitable for that purpose”.