Open source in tenders: legal certainty for authorities

In public procurement, a persistent assumption has prevailed for years: the targeted procurement of open-source software is legally inadmissible because it disadvantages proprietary providers. A recent opinion by the German Bundestag’s Scientific Service refutes this assumption. The experts conclude that focusing on open source is not inherently illegal and, under certain conditions, can even be legally and economically sensible. 

This classification is of considerable practical importance for authorities and public contracting entities that want to promote the use of open standards and open-source solutions, especially in areas such as digital collaboration and video conferencing systems, where issues of data sovereignty and vendor independence are increasingly at the center of procurement decisions.

The principle of product neutrality and its limits

In European procurement law, the principle of product neutrality generally applies above certain thresholds: tenders must not exclude providers without a valid reason. This is precisely the basis on which many contracting authorities have in the past been reluctant to make explicit open-source specifications.

However, the expert opinion differentiates more precisely at this point. A restriction to open-source software is permissible, provided that there is an objective, contract-specific reason for it. The experts cite requirements for IT security, interoperability with existing systems, and the strategic interest in developing a solution independently in the future as such reasons. The usual addition “or equivalent” should be included; however, if the contracting authority can prove that there is no equivalent proprietary alternative, it may opt for an open-source solution. The burden of proof and documentation for this lies with the contracting authority itself.

ECJ case law puts vendor lock-in in the spotlight

The debate has been given additional weight by a recent decision of the European Court of Justice. In a ruling in January 2025, the ECJ dealt with the issue of permanent, costly dependence on a single vendor: the so-called vendor lock-in. The court ruled that public authorities can no longer use a dependence on a supplier that they themselves have created as a justification for awarding contracts directly to that supplier without a regular tendering process. Instead, authorities are obliged to actively reduce existing dependencies by continuously monitoring the market.

This development fits in with a procurement practice in which economic and strategic considerations are increasingly in favor of open solutions. According to the report, principles such as cost-effectiveness and economy can, in individual cases, even speak in favor of giving preference to open-source software, for example, if it reduces long-term costs, dependencies, or the effort required for later migration. The Open Source Business Alliance also sees the report as an important impetus for procurement practice.

Significance for the acquisition of digital collaboration solutions

The clarification by the Scientific Service applies to procurement projects across the entire public administration. From specialist software for operating systems to tools for digital collaboration. The issues mentioned in the opinion are particularly relevant in the case of video conferencing and collaboration solutions, which are already considered critical infrastructure in government agencies and companies: IT security, interoperability with existing IT landscapes, and the avoidance of structural dependence on individual manufacturers.

Open-source solutions such as openVisavid address these very points. The open source code enables independent security checks, the software can be integrated into existing infrastructure, and the operation can be carried out on-premises or on our European servers (SaaS), depending on the requirements. The conditions for a sound open-source specification, as described in the opinion, can therefore be directly implemented in practice: data sovereignty, auditability, and the avoidance of lock-in effects are not abstract criteria, but concrete procurement objectives that can be pursued in a legally secure manner with a properly justified tender.

Conclusion

The opinion of the Scientific Service provides for the first time a sound legal classification, which gives awarding bodies the necessary security for the targeted procurement of open-source software. The key point remains that the choice must be based on objective grounds, be proportionate and be transparently documented. This opens up new possibilities for authorities that pursue the development of digital sovereignty as a strategic goal. This is particularly true for the procurement of communication and collaboration tools, where security, interoperability and independence from individual providers are increasingly becoming key procurement criteria.

As a provider of an open-source video conferencing solution, we at openVisavid are observing this development with particular interest. Because criteria such as auditability, data sovereignty and independence from individual manufacturers are increasingly being treated as what they are: concrete, procurement law-compliant procurement objectives and not merely a general preference for open-source software. This clarification removes the legal uncertainty that has often accompanied the targeted procurement of open collaboration solutions by many awarding bodies.