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KRISS AND QUINN insist that all they are asking of the state is to consider open-source alternatives alongside proprietary ones, taking all these cost and functionality considerations into account. In the past, their argument goes, the state demonstrated a bias against open source, so this new policy is just a nudge to make up for prior neglect.

"This is trying to get to a level playing field," Kriss says. "There is nothing in what we’re proposing that in any way sets a preference for one type of system or another."

But if the goal is a level playing field, why is a new policy needed, when the state procurement statute already precludes preferences? "I’d be amazed if anybody thought there was any policy other than that in place now," says Jonathan Zuck, president of the Association for Competitive Technology, which represents software developers and opposes open-source preferences. If open-source venders have ever felt they were not given a fair shake, they had the right to sue, Pacheco says. That would be an appropriate way to address any perceived bias against non-proprietary venders, he says: "It can all be done without changing a comma in the existing statute."

Kriss’s original memo had presented open-source preference as a policy fait accompli: "Effective immediately, we will adopt ... a comprehensive open standards, open source policy for all future IT investments and operating expenditures." In the newly revised version of the policy, issued on January 13, much of the language about preferences has been eliminated. But critics contend that the administration’s transparent desire for open-source systems will bias procurement despite the recent policy revisions. "The ghosts of those original intentions are still there," says Zuck. "The people who have to actually implement these policies — the procurement folks — know what the original intent was, which is to give preference to open-source systems."

When the September memo was leaked, the panic in the state’s software community was so swift and severe that Kriss held a meeting with members of the Massachusetts Software Council, an influential organization of the state’s high-tech community, on October 8, and another in early December. It didn’t exactly dispel their fears. "I got the impression that there will be a strong preference for pushing open-source software," says Berelowitz, who was at the first meeting.

"When he’s talking to people in meetings, he’s talking about moving toward open source," says CompTIA’s Mike Wendy, who has attended two meetings with Kriss.

Quinn says that the open-source policy was recommended by the Massachusetts Commission on Information Technology (MCIT), put together at the end of Jane Swift’s administration. Not so, say those who served on the commission. That 30-member group produced a 194-page report last February containing 34 possible initiatives, ranked by feasibility and priority. Open-source rated brief mention as a low-feasibility project of tepid priority.

"That was not part of our commission," Bart Guerreri, who served on the commission, says of the policy. Other commissioners were unwilling to speak on the record, but expressed displeasure at the open-source initiative. Guerreri, founder of DSD Labs, a network-security company in Sudbury, adds that at least one key recommendation in the MCIT report has not been implemented — cutting Kriss out of the loop. "We strongly suggested that [Quinn] report directly to the governor," Guerreri says.

IF THE SOFTWARE industry thinks it’s been left out of the process, it’s not alone — the state legislature does too.

"All of a sudden we’ve got a policy coming out, with very little notice and very little planning," says State Senator Pacheco. "We were getting calls here from Massachusetts companies, asking, ‘Does this mean we’re out of business with the Commonwealth?’"

The answer to that question was further muddied by the fact that it wasn’t even clear whether the policy change was, in fact, implemented. At the end of November, the state released its first IT contract solicitation following the September memo. The relatively small project for a "virtual law office" required that the software comply with the new open-source policy — which did not yet officially exist. "I’ve never seen a [bid solicitation] process like this — referring to the new open-source policy that hasn’t been completed yet," says one state Senate aide, who asked not to be named.

Pacheco worries that the apparent preference for open-source systems runs afoul of state-procurement law. He also wonders if the administration had any legal basis to create the policy without legislative approval. "Usually when the administration files a proposed regulation or proposal, they would submit with the proposal an explanation of where they get the authority to put it forward," Pacheco says. "That is standard executive-branch practice. In this proposal they have not done so."

Pacheco called a hearing at the State House, at which Kriss declined to appear, even though Pacheco says he offered to meet anytime in December that was convenient for Kriss. Quinn appeared on December 17, but didn’t exactly clear things up. "We got a lot of ‘I don’t knows’" from Quinn, Pacheco says.

With Kriss still refusing to meet with Pacheco’s committee, the senator sent him a letter on December 30 with questions about the policy’s legality. Pacheco has not heard back.

Asked about the legality issues raised in Pacheco’s letter, Kriss says, "We’re working on it."

THROUGHOUT THIS process, Kriss has spoken and written of "open source" — essentially a contractual-licensing term — in tandem with the technical term "open standards." "I got the impression that there is a confusion between open standards and open source," says Berelowitz. "I’m concerned as a person in the industry that maybe the current administration doesn’t understand the difference."

But Kriss is no techno-novice. He was a programmer early in his career, has founded and run technology companies — including WorkMode, an open-source Web-development company — and was a member of the Massachusetts Software Council.

"He knows what he’s talking about — on the open-source issue in particular," says Wendy.

Some, including Zuck, suspect that the administration is emphasizing open standards to get the new policy in the door, and will later expand the open-source requirements. "Subsequent versions" of the reference model "will provide more detailed specifications," the policy says. That leaves room to add open-source specifications without external review, says Zuck.

Furthermore, the "Open-source License Legal Toolkit" — a set of guidelines for open-source contracts — referred to in the policy, is simply missing, listed as "under development." Kriss says it will come out in the spring; nobody outside the administration has been asked to contribute to its development so far.

"What’s going to be the process to make the decisions?" asks Paul Eggerman, co-founder of eScription, a software company in Newton. "There needs to be a responsible, open process."

There’s another oddity in the final version of the policy, suggesting another avenue of concern entirely: it permits the use of freeware. Freeware is open-source software that you don’t pay for at all — you grab it off the Internet, or from someone who has a copy. The new policy contains a term that did not appear in the draft: "public sector code sharing," defined as software "made available to other public entities for use and modification without royalties" — in other words, inter-governmental freeware product-swapping.

"There is a push to try to bring freeware into the state government," says Eggerman. "If you read between the lines, that’s there."

In fact, a day before Kriss sent his September memo, Quinn told an American Electronics Association (AEA) conference in Cambridge that the state was going to start acquiring freeware. The announcement — kind of like telling a roomful of office-furniture dealers that state agencies will henceforth get their desks and chairs for free from curbside discards — stunned the room into silence, according to Wendy. Of course, that doesn’t mean state technology officers haven’t considered it. "There are a lot of different applications out there that states use in common," says Robert Woodruff, director of the Technology Office for the state of Georgia. "If we collaborate on open source, we can save a lot of money."

But that would be money software companies wouldn’t make, since large government markets would be no longer available to them. This could significantly harm software companies’ ability to profit from their innovations. "That’s something we’re concerned with," says Anne Doherty Johnson, executive director of AEA’s New England Council. "We just can’t afford to give away something that’s valuable."

Adding to software makers’ unease about the new policy is the widespread confusion about its implications. Nobody really knows what it means in practical terms — even those who are bidding on new state contracts that fall under the policy.

"It’s not clear to me," says Rodriguez, whose company has signed on as an interested bidder for a software-development project announced by the Massachusetts State Lottery Commission (MSLC) in December.

And those inside the state are no clearer. "I’m not sure," how the new policy affects that MSLC contract, says James Schmidt, the procurement head for that MSLC project.

"We will be looking to have a discussion with Secretary Kriss" about it, says Joseph Sullivan, executive director of the MSLC.

These days, a lot of people are asking for such discussions, which should have taken place months ago.

David S. Bernstein can be reached at dbernstein[a]phx.com