COI: Competitive Bids on Developer Contracts (was Re: Conflict of Interest policy, 1 March 2012 draft)

[Tony Sebro]

On 03/05/2012 06:48 AM, Ian Lynagh wrote:
> On Fri, Mar 02, 2012 at 10:06:32AM -0500, Bradley M. Kuhn wrote:
>> Also, I think that Ian's assessment is correct: if we got down to a
>> serious dispute between Conservancy and the Project Leadership about
>> whether the work should be done by a specific individual, then the
>> likely outcome would be "the work doesn't happen".
>>
>> Ian, is there some specific change you think would help address this?  I
>> feel like what I said above is ultimately implied
> It is largely implied, but "Conservancy holds Sole Authority to
> Negotiate and Execute Contracts" could imply the opposite.
>
> Perhaps append the last sentence here (feel free to phrase it better):
>
>      ** *Conservancy Retains Right to Request Competitive Bids.* PLCs
>      acknowledge that Conservancy retains the right to ask for bids from
>      software developers in addition to PLC Person to fulfill a given contract.
>      Should that instance arise, Conservancy's Executive Director (or designee)
>      will consult with the PLC to select the candidate best suited to fulfill
>      the contract within the budget allotted. If Conservancy's Executive
>      Director (or designee) and the PLC cannot agree on a software
>      developer, then the conrtact will not be awarded to anyone.

I think I understand what you're trying to accomplish with the added 
language.  On the one hand, Conservancy does not wish to usurp a PLC's 
authority to determine a technical direction for its project.  On the 
other hand, I could envision a scenario where a PLC has set a technical 
direction (in the form of an agreed-upon development proposal), but is 
struggling with conflicts to the point where it can't make a decision on 
an "unconflicted" developer.  The PLC may have articulated the need for 
an extremely time-sensitive project, for example, but they're struggling 
to adhere to the conflicts policy due to an internal dispute.

In those rare instances, Conservancy needs to be able to make the best 
financial decision available and hire a developer to support the PLC's 
stated technical direction.  If we adopted your suggested sentence, 
Conservancy could still act as a "check" to protect a conflicted PLC 
from an inappropriate contract, but we'd also be immobilized from 
pursuing our charitable mission during time-sensitive scenarios.

Now, in the vast majority of circumstances, bottlenecks resolve 
themselves.  Or, the PLC develops an alternative proposal and works with 
Conservancy to allocate resources to support that new technical 
direction.  Or, as Bradley said above, "the work doesn't happen."  
Still, I think Conservancy needs the flexibility to act the <1% of the 
time where a PLC has set a technical direction (say, with an urgent 
need) but is too conflicted to pursue it.

> I've also just noticed that it says "software developers". Perhaps it
> should be generalised to "contractors" or something, to includ
> documentation writers, website developers, etc.
Good eye.  I've edited the section to use the term "technical service 
contractors," which I've defined as including at least software 
developers, documentation writers, and website developers.

Thanks! -Tony

-- 
Tony Sebro, General Counsel, Software Freedom Conservancy
212.461.3245 x11
tony at sfconservancy.org
www.sfconservancy.org

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