OSS Is Allowed and Preferred
As it relates to both Federal Government and Department of Defense (DoD) acquisitions, Open Source Software(OSS) is considered “commercial computer software” products. The United States Code1, Federal Acquisition Regulations2, and Defense Federal Acquisition Supplement3 all concur in the classification of OSS as a commercial software product because OSS is commonly licensed to the general public for purposes not uniquely governmental and can be modified to meet various requirements. In many cases, OSS products can also be considered “commercial off-the-shelf items” (COTS), a specific subset of commercial items4. COTS items are ready to use and require little if any customization.
To ensure efficiency and reduce the potential for waste, the Federal Government has enacted legislation5 directing its agencies exercise a preference for commercial and non developmental items (NDI) “to the maximum extent practicable”. The law’s intent to prefer COTS and NDI products is echoed in both the FAR and the DFARS. As a commercial item, an OSS product that is found to viably meet an agency's requirements must be considered alongside other commercial products being evaluated.
Department of Defense
In 2009 the DoD issued a memo providing clarification and guidance to establish the definitive interpretation of OSS as being “commercial” and therefore given preferential treatment in the acquisition process and extended that interpretation to all military services.
- 2003 Stenbit Memo6
- 2006 OTD Roadmap7
- 2009 OSS Clarifying Guidance Memo8
- 2010 Carter Memo9
U.S. Army- AR 25-2 p4-610
Department of the Navy (U.S. Navy & U.S. Marine Corps)- 2007 DoN OSS Guidance11
U.S. Air ForceTo date, the United States Air Force has not defined its own OSS policies. With the 2009 DoD Clarifying Guidance Memo8 in force, the Air Force will likely invoke and transmute the DoD's guidance to the Air Force.
1 41 USC 403 — Federal law (41 USC 403) clearly defines a commercial item is “(1) Any item, other than real property, that is of a type customarily used by the general public or by non-governmental entities for purposes [not government-unique], and (i) Has been sold, leased, or licensed to the general public; or (ii) Has been offered for sale, lease, or license to the general public... (3) [Above with] (i) Modifications of a type customarily available in the commercial marketplace; or (ii) Minor modifications… made to meet Federal Government requirements...”
2 FAR 2.101, 12 — FAR 2.101(b), 12.000, 12.101 (reference (c))
3 DFARS 212, 252 — DFARS 212.212, 252.227-7014(a)(1)(reference (d))
4 41 USC 403 — Title 41 §431 of the U.S. Code defines COTS as being “(A) a commercial item (as described in [41 USC 403])... (B) sold in substantial quantities in the commercial marketplace... and (C) is offered... without modification... [and] does not include bulk cargo... such as agricultural... and petroleum products.”
5 10 USC 2377 — Title 10 §2377 of the U.S. Code is clear in its policy that agencies of the Federal Government must “(a) Conduct market research to determine [if] commercial items or non-developmental items are available … (b) Acquire [them] when… available … (c) require... contractors and subcontractors... to incorporate, to the maximum extent practicable, [them] as components...”.
6 DoD Policy Memo Issued May 28, 2003, Open Source Software in the Department of Defense
7 DoD Publication Issued April, 2006, Open Technology Development Roadmap
8 DoD Policy Memo Issued October 16, 2009, Clarifying Guidance Regarding Open Source Software (OSS)
9 DoD Policy Memo Issued June 28, 2010, Better Buying Power: Mandate for Restoring Affordability and Productivity in Defense Spending
10 US Army Regulation 25-2, paragraph 4-6.h
11 DoN Policy Memo Issued June 5, 2007, Open Source Software Guidance