"Or Equivalent": Open Source, Product Neutrality, and the Service Contract¶

Stéfane Fermigier

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Abstract¶

The Bundestag's research service was asked whether a public tender may be restricted to open-source software, and the procurement press condensed its answer into one sentence: a blanket, politically motivated restriction is impermissible. Read in full, the opinion says the restriction is lawful when its reason is written down, that a statutory priority is lawful when conditioned, and that after the Court of Justice's January 2025 ruling on self-created exclusivity, choosing open source at first award may be required. The opinion analyses one object, buying software; the debate concerns three, and on the one that earns the providers' revenue, services on open-source software already in place, naming the product restricts no bidder, as the Conseil d'État and a German procurement chamber have held. A count of TED notices puts a fifth of Germany's software awards outside any prior call for competition. Five asks for the Strategy's tender guidelines, the CADA implementing acts and the Public Procurement Act proposal.

Share of software and IT awards made without a prior call for competition, in the Union and four Member States, 2024 and 2025.

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Fermigier, S. (2026). "Or Equivalent": Open Source, Product Neutrality, and the Service Contract.
Policy paper, Abilian Econ Lab.
https://econ.lab.abilian.com/papers/or-equivalent/