NSW government wants Linux IP, patent protection

Included in a NSW government list of selection criteria tenderers should address if they want to be appointed to the panel is a tenderer's "capacity to protect a customer from anti-Linux litigation, particularly any alleged claims of patent or intellectual property infringement".

Inclusion of the criteria comes as SCO's legal assault on Linux grinds on and concern within the open source movement grows over the possibility of an assault by proprietary software rivals using the patent system.

The government said in a request for tender issued this morning it plans to form a panel for a minimum of two years from December of about 10 suppliers to provide Linux software and services to its agencies.

The state Department of Commerce said in the long-awaited request for tender -- which closes on 28 October -- the panel would operate from 15 December this year to 14 December 2006. There will be an option to extend for another two one-year terms.

The release of the tender comes as the state government drafts an open source policy designed "to facilitate the widening of software alternatives available to government".

The panel is designed to give agencies a better opportunity to access Linux software and associated services at server and desktop environments, "in accordance with the NSW government's ongoing open source initiative". While the panel is available to eligible buyers, there is no guarantee of work. However, previous statements have indicated there may be more than AU$40 million worth of contracts on the table over the life of the panel.

There is no restriction on the distribution of Linux employed when offering to undertake work. Officials said the department did "not intend to restrict the number of different distributions that may be available from the panel".

The state government said the tender would encompass Linux distributions, Linux infrastructure software, Linux systems support services, Linux systems integration services and product-specific training services. It would not include Linux-compliant hardware, Linux custom applications, Linux custom application support services, Linux custom application development and managed services for Linux installations.

While tenderers would be required to offer both Linux systems support services and product-specific training services, preference would be given to tenderers who could offer all or most of the deliverables, have strategic relationships with existing suppliers on other panels -- particularly major hardware vendors -- and "can act as expert prime contractors in facilitating the delivery of cost-effective Linux solutions".

The state government said a tender briefing would be held on Wednesday 13 October at the McKell Building, 2-24 Rawson Place, Sydney 2000.

The government said in the tender it has considered a number of factors in selecting the Linux panel contract model, including:

• the NSW government is encouraging agencies to consider open source alternatives when purchasing software to maximise efficiencies;

• Linux is the most prevalent open source operating system worldwide and has increasing support from software, services and hardware suppliers;

• most independent tests by respected authorities tend to demonstrate that Linux is not inferior to proprietary alternatives and;

• a focus on Linux offers the best potential for measuring agency take-up rates, monitoring savings and identifying aggregation opportunities.

Selection criteria for the request for tender that do not relate to price will account for 60 percent of the total evaluation score, the government said. Those that do relate to price will account for the remaining 40 percent.

Aside from the intellectual property and patent criteria, tenders will be evaluated on: fitness for purpose at an enterprise level, including; application of industry-recognised methodologies for the certification of Linux software and hardware, capacity to protect a customer from anti-Linux litigation, "particularly any alleged claims of patent or intellectual property infringement" and possession of appropriate quality assurance certifications".

The state government will also examine tenderers' strategy for ensuring the best contract price at all times.

Tenderers should also demonstrate capacity to perform this standing offer agreement, including: business experience in the delivery of Linux software and services; human resource capability; help desk access and Internet support facilities; financial viability and suitability of proposed insurances; ability to market this standing offer agreement, current commitments, range of deliverables offered.

Tenderers should also look to secure general compliance with NSW government procurement policy and other applicable NSW government policies.