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The Technology Law Bulletin: "U.S. Government Initiative Boosts Standards"

By
Andrew Updegrove, Esq.

The following article appeared in the July, 1996 issue of The Technology Law Bulletin, and is copyrighted by that journal

A provision of a recently enacted Federal law has given strong reinforcement to the standards movement, and could re-energize the formation of standard-setting consortia. The new law, referred to as the "National Technology Transfer and Advancement Act of 1996", is part of an overall government effort to increase the efficiency and lower the costs of government procurement in the technology area.

Although it had previously been Government policy to encourage the use of private-sector, consensus-based standards in government procurement, this practice was not mandatory. Under the new law, the National Institute of Standards and Technology (NIST) will be responsible for comparing standards created and adopted by "private, consensus organizations" with Federally-adopted or other recognized standards. Unless the use of a private standard is "inconsistent with applicable law or otherwise impractical", the use of that standard in specifying procurement criteria for a given purchase is mandatory. If an agency believes that a standard other than a private standard should be used, the head of the department or agency in question is required to justify the decision in writing to the Office of Management and Budget (OMB). Theoretically, OMB could override the agency's decision to ignore a private industry standard. The ability or likelihood of such a veto is not yet clear, pending drafting of implementing regulations. The regulations are due for release by year's end.

Until these regulations are created, ambiguity also exists on at least one other key point: exactly what are "voluntary consensus standards" created by "private, consensus organizations"? Without question, this definition includes the "de jure" standards promulgated by the formal "due process" organizations like the American National Standards Institute (ANSI), and excludes the "de facto" market-power standards frequently observed in the marketplace such as the "WinTel" hardware/software operating system.

Unclear at this point is whether the standards produced by the many consortia of private companies which exist, such as Object Management Group (the preeminent developer of object oriented programming standards) or the OpenGIS Consortium (the dominant developer of geoinformation standards), are intended to be included. Presumably, it would be hard to avoid such inclusion, due to the widespread industry adoption of the standards of the former, and the extensive government involvement in the creation of the standards of the latter. Nonetheless, while consortia have produced many widely respected standards which have in turn been endorsed even by the de jure standard-setting organizations, they do not employ the extensive (and time consuming) balanced committee, rights of appeal, and other detailed process controls of the de jure organizations which are intended to ensure that all relevant interest groups are permitted to participate in and influence important standards. The assumption of many observers is therefore that consortia standards will be permitted by the regulations, since to exclude them would seriously blunt the effectiveness of the new legislation.

The practical import of the new legislation is very significant, since the law also encourages the "coordination" of State and local, as well as federal standards conformity and assessment activities. Together, these governmental purchasers represent enormous buying power, and the ability to access this market more effectively and efficiently represents a strong motivation for many types of goods and service providers to work together. More significantly, the ability for companies to cooperate to set open standards which government buyers might adopt rather than (to give the most obvious example) the de facto standards of Microsoft, represents a strong incentive to steal a march on the competition.

Most obviously, this exercise of government buying power may serve to accelerate the development of some degree of order on the very chaotic evolution of de facto standards in the Internet area, where events have been moving so quickly that weak standards have been rising, mutating, and on occasion falling at an accelerating rate. Hopefully, when OMB drafts the eventual regulations, it will take the volatility of this marketplace into account and permit the more nimble, consortium-based standards approach to be employed in developing standards which the government will endorse.

TLB Comment: The development of standards by American industry has a history which extends back well over 100 years. In the modern world, the purchaser and user of technology has a greater incentive than ever to seek vendors who can deliver products which "plug and play" and which have the greatest degree of interface conformity with other products for greater ease of learning and use. While the level of lip service accorded to "open standards" in industry today has approached the level of respect historically accorded to motherhood, America and apple pie, actual vendor commitment and delivery of truly open products has been less impressive. With the government market putting its buying power behind the promise of standards-based technology, companies will have a greater incentive to come together and agree upon actual, useful, implemented standards for the benefit of public and private sector consumers alike. [Object Management Group and OpenGIS Consortium, mentioned above, are clients of the firm.]

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DATE: 07/01/1996

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