Discretionary Choice of Software by the Public Administration

ABSTRACT This article examines how public administrations acquire software - either by in-house development or outsourcing - and the legal, technical, and strategic implications of each choice. It highlights the tension between transparency, efficiency, and digital sovereignty. Particular attention is paid to open-source policies, proprietary software and the impact on users’ rights. The analysis concludes with a reflection on AI’s potential role in improving software acquisition strategies.

KEYWORDS Digital administration - Open-source software - Digital sovereignty - Algorithmic transparency

TABLE OF CONTENTS 1. Introduction. – 2. The selection of software and of its acquisition method: in-house development “to do” or outsourcing “get to do”. – 2.1. “To do”: customised in-house software development by the public administration. – 2.1.1. The selection of software under an open-source licence. – 2.1.2. Choosing proprietary software. – 2.2. “Get to do”: outsourcing to acquire software. – 2.2.1. Compliance with binding rules. – 2.2.2. The search for agility in public IT procurement. – 3. How are recipients affected bythe public administration’s software acquisition method?. – 3.1. The question of extraterritoriality. – 3.1.1. Prohibition of a national preference clause. – 3.1.2. Example of the Health Data Hub. – 3.2. The limits of transparency. – 3.2.1. Limits on disclosure in the context of in-house software development. – 3.2.2. Limits in the context of outsourcing - Industrial secrets and commercial interests