The Paris court (in 2017), headquarters of the National Financial Prosecutor’s Office (PNF). Photo: Wikipedia / Jeanne Menjoulet
The anti-corruption association Anticor announced this week that it filed a complaint on May 2 with the National Financial Prosecutor’s Office (PNF), “relating to suspicions of favoritism in the award of a public education contract national to the American company Microsoft”.
Call for tenders “for the exclusive benefits of Microsoft”
Anticor quotes a September 2020 article from Le Canard enchaîné, reporting a call for tenders for 8.3 million euros launched by the Ministries of National Education and Higher Education, for the equipment of 800,000 positions with licenses Microsoft.
“However, note Anticor, the procedure of this call for tenders raises questions. Indeed, it seems to have been built for the exclusive benefit of the American company, even though French free software companies offer solutions with equivalent functionalities and performance.
On the one hand, the provisions of the Public Procurement Code provide that “the technical specifications of a contract cannot refer to a brand or a patent when this is likely to favor or eliminate certain operators”. Its object should not be written suggesting that a company is favored.
However, by entitling its market “the concession of the right to use on a non-exclusive basis, in perpetual mode or in rental mode, of Microsoft solutions and associated services”, the National Education explicitly names the solutions of the American company as specific technique and therefore excludes any alternative.
On the other hand, awarding the contract to Microsoft seems to go against the Education Code which, on the contrary, encourages the public service to use free software for its users.
If the facts are proven, they could represent a significant breach of the rules of public procurement, both in terms of freedom of access and equal treatment of candidates.
A market partitioned by technical specificities excluding any alternative discourages candidates. However, it is the existence of these alternatives that oblige the administrations to go through a procedure of invitation to tender to all market players.
Anticor points to a dangerous commercial relationship between a French administration and a digital giant enjoying an almost absolute monopoly even though companies offer equivalent solutions.
CNLL: “The State prefers to pay annuities to Microsoft”
This call for tenders in 2020 had sparked protests, including that of the CNLL (open digital companies) including François Aubriot, member of its board of directors and head of the “public procurement” monitoring unit, deplored in the Duck that “the State prefers to pay annuities to Microsoft rather than turning to French companies perfectly capable of providing them with the services requested and which do not practice tax optimization”. “The CNLL recalls that, for all the categories of software mentioned in the call for tenders, there is free software, often carried by French or European publishers, which has features and performance comparable to those of Microsoft software, which obliges the administrations to go through a tendering procedure open to all these actors.”
“By favoring (in defiance of the most basic rules of public procurement) a non-European player, a repeat offender convicted of abuse of a dominant position and anti-competitive practices, the CNLL once again notes the gap between current discourse on digital sovereignty and the reality of public procurement in the digital field. He once again calls for free software to be fully taken into account at all levels of the State and local authorities, as a major tool for strengthening French and European digital sovereignty.
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StopCovid: the national financial prosecutor’s office is investigating suspicions of favoritism – May 21, 2021
Free software at National Education: a question, a non-answer and elements – September 27, 2020
National education: here is why Microsoft is a hard drug – September 11, 2020
Cash Investigation: Free Software, Defence, Microsoft and Italy – October 22, 2016