Public Money - Public Code: Helping with the campaign

[Adonay Felipe Nogueira]

That's an interesting quote you got there...

In Brazil at least, it's currently inconstitutional to declare
free/libre software as *mandatory* through *legislation*
([1][2]). Noting that, at least in Brazil, the major sector in
legislation is the legislative, but the administrative and the judiciary
can also affect the legislation in some way.

Brazil's Federal Constitution defines, among other things, what public
administrators can do (and everything not there is forbidden). This
constitution exposes that the administrator have to follow some
principles, one of these talks about public administration
efficiency. However, the efficiency principle serves as guide and comes
as priority of evaluation over the remaining principles ([1]).

Furthermore, at least in the researches made on the interpretation of
Brazilian laws and norms, the "public administration efficiency" is
beyond the general "bring results with less resource usage" (that is:
optimizing the means), in order to also include the quality of the
result ([1]).

However, as I said, free/libre software usage can't be mandated in
*legislation* in Brazil, but the public administration can mandate it
through procurement, either as a requirement, or with a criteria with
punctuation/weight heavier than the other criterias ([1]).

In the first case (mandated in the procurement), there's no
discrimination, at least according to [1]. However, I must add my
personal note here: if we take that case upside-down, and imagine a
procurement limited to some some non-free software known by name; or
limited in a way that explicitly writes "non-free software", "closed
source software" (I do know that we're not open source, but let's assume
they don't know that) or "non-libre software", then we might have a
problem with the argument made by the reference [1]. :(

In the second case (with higher weight), it might be that no candidate
attends the criteria, or that the weight isn't set high enough in order
to make the compliant candidates stand out (however, I didn't
investigate if there is a standard as to how to set the weights, so I
don't know if the act of "making something stand out just by being
compliant with one criteria" is even legal).

[1]
<http://bibliotecadigital.fgv.br/dspace/bitstream/handle/10438/2673/FGV-CTS%20-%20Software%20livre.pdf>
(CC BY 2.5 BR)

[2]
<http://www2.senado.leg.br/bdsf/bitstream/handle/id/243078/Caderno3.pdf?sequence=1>
(CC BY-NC-SA 3.0 BR)

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