Contract between Microsoft and the French Ministry of Defence: What Limits to Set for Open Bar?

In July 2014, April received new documents about the Open Bar Microsoft/Defence contract, including the evaluation of the first contract by the Advisory Committee on Public Procurement (CCMP - commission consultative des marchés publics), dated May 6th, 2008 [fr]. In 2008, the first Open Bar contract had been referred to the CCMP in order to verify its legal validity with respect to public-procurement regulations. Unlike the very critical opinion of the CCMP's rapporteur, the final report essentially validates the legality of the “Open Bar” construction, although with a few reservations.

Most of them bear on technical issues, which evidently caused the contract to be modified before signature.

However, more general caveats were also expressed by the CCMP, which “asks the department, however, to make absolutely sure that the provision of services associated with the main provision of software upgrades is really essential to the maintenance of the software in working condition”. In other words, the procurement must exclusively involve upgrade of existing software.

This request follows the CCMP rapporteur's note, which stressed that the actual purpose of the contract was not reflected in its title, and thus proposed to rename it "Granting of Use Rights for Microsoft Workstation Products and Associated Services”. This approach, incidentally, was implicitely endorsed in 2012 by the Ministry of Defence, when he explained, in his answer to a written question by a Member of the French Parliament, [fr] that the contract's purpose was “standardisation of the Ministry's office environment.”

Despite all this, neither the title nor the purpose of the contract was modified. The result is an inconsistency between the stated and actual purposes of the contract, which is at the moment worrying in terms of compliance with public-procurement rules.

Moreover, the need to restrict this “maintenance” contract to the update of existing products was reiterated in 2012 by the State's Public Procurement Committee (CMPE - commission des marchés publics de l'État), which has replaced the CCMP ever since. The CMPE even underscored that software such as word processors should be subject to competition [fr]. Finally, one may regret that the opinion of the 2008 rapporteur was neither taken into account nor referred to in the 2012 opinion.

In conclusion, April exposes a dubious contract, which seems not to respect the opinion of committees whose role is to ensure compliance with public-procurement rules. Even though the 2008 contract has expired, it was renewed in 2013 and care needs to be taken until 2017 to limit the dependence of services as crucial as defence on Microsoft.