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FZ-188: who will soon categorically not be able to buy foreign software, if there is a Russian equivalent



There is a federal law number 188, which is quite rigid (albeit a logical thing):

Further, our value judgments and forecasts with comments from our own IT lawyers. First of all, the law will affect operating systems (we have many options for open-source Linux, already wrapped in the “Russian development” shell), information security products (good in this country very well), antiviruses, as well as “Russian »Companies like Parallels, Veeam and Acronis, when their products are included in the register of domestic software (and if they enter, because the rights to the software are in many cases issued to foreign companies or offshore - our developers, but there is no right).

Now this law applies only to state institutions, but it can be extended to companies with a state share, and then (for example, after 5 years) to the entire market.
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Perhaps that is why state-owned companies are now rushed to buy software before the law came into force - "for the future."

Current situation


According to FZ-188, a certain register of domestic software will be created, where software products are entered. The developer submits an application for a deposit, waits for a decision on it - and if its software is recognized to be quite domestic (in practice - most likely, it will open-up in a “wrapper”; software produced in our territory by our company; a modified foreign file, where there is a significant share code), it will be entered in the register of Russian software. Just in case - it is created within the framework of measures taken by the state to limit purchases of imported software in state structures and in the future, perhaps in companies with state participation. The criterion that the software is domestic and participates in events defined by the Federal Law 188 is its presence in this registry.

The registry itself is not there. But, for example, in the catalog of domestic software of the Association of Software Developers now there are about 800 positions of application software and about 100 positions of software. In addition, another interesting indicator suggesting this: in accordance with the data of the Ministry of Communications and Mass Media of Russia for April 2015, the import of information security tools was about 60%. According to the state import substitution plan in 10 years, this share should be reduced to 40%.

For example, for state customers there is an import substitution plan for the Ministry of Communications and Mass Media, which implies the following priority:
  1. Fully domestic software.
  2. Open source software.
  3. The rest (including foreign commercial software).

It involves the migration to our or, at least, “nobody's” open source solutions for many years. Nevertheless, a similar plan was in 2010: on December 17 at disposal of No. 2299-r V. Putin signed a plan for the transition of federal authorities and budget institutions to the use of free software. It was not executed, in particular, because it was not supported by specific documents with clear responsibility.

Now the FZ-188 appears, according to which government customers, if they decide to buy Microsoft products in the presence of a direct Russian counterpart, will have to justify this before the state.

What it backfired before the entry into force of the law


Two factors clashed here. On the one hand, we have a lot of state-owned companies that really need foreign software to work on the current infrastructure, and jumping to something new in six months or a year (the time of the next update) is very expensive and scary. On the other hand, we live in Russia, where for every tricky nut there is a bolt with a special thread.

Accordingly, we see two phenomena: first, government agencies purchase licenses for software for the future, using existing or additional budgets. On the other hand, the largest tenders in the IT infrastructure are now played not around licenses, but around the service.

In fact, the same office packages can be replaced with “provision of workstations from the cloud with such and such requirements”, which corresponds to the office. That is, outsource licenses and support. The third company (not state-owned) that does not fall under the FZ-188 buys licenses and support, and then somehow renders these services to a state-owned company that is not capable of doing it under the FZ-188. It is clear that this is a loophole as it is, and personally I don’t see it as correct, but these are modern realities. While there is no practice on such solutions, but, in general, if we are talking about services from the cloud, most likely it will be legitimate.

Another reason for this behavior is that we all know how even good and logical laws are enforced in the early years. Until the registry is full, any surprises are possible. If you remember, many things certified in the Russian Federation were written under the good old DOS. And they worked right up until the 2010s, because they were obliged to do so. Is the quality low? But his. Wait for the good to write. So, practice shows that they write for a very long time. Or another example: for example, the unforgettable Lexicon will enter the registry as a text editor. And the tender will have a “text editor with the ability to draw graphics” - such as Word or an open-air office, but they are not in the registry. What then? They will come and say, “You want a lot, John, let's go with us” - or will they miss it? Practices of this kind yet.

The defense industrial complex is already really concerned about these issues.

Another reason for the frequent “re-purchases” of software is the issue of the ruble exchange rate. Many are trying to upgrade in case the "course hits."

What will happen?


Hard to say. Most likely, at first for state structures it will be as with personal data: the method of sequential refinements. Remember, in the beginning it was completely incomprehensible what and how. And now the practice has been fully developed, there are opinions of regulators. Although, of course, at first, the FAS will add more work, but it always happens with new restrictions.

A wave of checks will follow, as after the updated law on PD (then there were 317 checks in a few weeks).

Then the registry will grow. Of course, there will not be a full stack of all technologies in it, therefore, especially critical things may be purchased as a service from third companies. Then, in a few years, the situation will improve.

At this point, it is very likely that the action of law 188 will be extended to companies with state participation, not only for those who are currently procured under Federal Law 94, but also for those with 50% of the state plus one share.

When the run-in is over, most likely (again, presumably, focusing on import substitution plans), commercial companies will limit. This could be an extension of this law or other methods - for example, they would say that “meat is infected” or “Windows 10 contains malicious code” - and that’s it, hello at the border crossing or sanctions.

When will this happen and who falls?


January 1, 2016 the law comes into force. Institutions that cannot prove to the regulator that the project requires foreign software will be forced to rebuild the infrastructure on Russian software. In each case, regulators will decide at their discretion, in the interests of the state, and not of manufacturers.

But ! Pay attention to article 14 of the law. It says that, despite the fact that the law will come into force on January 1, in fact, it will only be asked if the so-called “national regime” occurs. That is, it is possible that there is no need to panic right now, plus you don’t need to worry much about the registry: the national regime is likely to turn on much later on January 1. But as they say, it is better to be prepared.

188- is distributed to state bodies in accordance with the document “On the contract system in the field of procurement of goods, works, services for state and municipal needs” (Federal Law No. 188- dated June 29, 2015 “On Amending the Federal Law“ On Information , information technologies and the protection of information "and article 14 of the Federal Law" On the contractual system in the field of procurement of goods, works, services for state and municipal needs "), 44- extends its effect to the state corporation only e, if they have not accepted their procurement regulations. In all other cases, the Federal Law-188 speaks of state and municipal customers. On customers for the 223-FZ new law does not extend.

For example, the law covers such customers as:


What happens if a deal is in progress?


There are no precedents of this kind, but a lot depends on the agreement with the supplier. For example, many prescribe such political actions in the force majeure section. In fact, this means a revocation of licenses and the inability to return money for them (during the termination procedure, since the transaction in the process under the terms of the state contract must be completed).

About a year ago, there was a significant moment on the market with MS - one customer had another payment under an enterprise agreement (it is concluded for three years). The customer has already paid for one integrator, he paid for MS, and at that time they announced sanctions. And MS refused to issue a license to the customer. They wanted to solve peacefully - "here is your money, uninstall the software." After a very long trial resolved successfully. Lawyers made conclusions and updated documents.

It would be ideal if in the absence of the right to use the license, it would be possible to resell it. But, for example, in accordance with the Microsoft Enterprise Agreement, this cannot be done.

Alternative opinion of a pessimist lawyer


The Federal Law defines the criteria that the software must comply with in order to get into this registry. It:

Please note that in this situation, if you are developing software, the rights to which belong to you, and inside your software uses Oracle DBMS, then you can register this software as domestic and register it. Further, for example, the Russian courts will continue to purchase Oracle (or SQL) along with the court software.

But no integrator will rewrite the boxed solutions (without open source) for another OS or another DBMS.

At the same time, some representatives of state bodies (again, according to rumors) perfectly understand the situation, since there is no money in the budget for a radical restructuring of the infrastructure. This will probably mean some relief in the first years of the Federal Law.

Therefore, the worst forecast is that the law will come into force, but no matter how much we want, in reality it will not work in 2016 for the reasons listed above (even in the case of entering the “national regime”). At the same time, foreign manufacturers will begin to make software formally “as if Russian”, changing the location of additional offices on paper. Naturally, it is in the interests of the Russian IT community that, in general, a reasonable and adequate law (if you think about it, it is very logical and even useful) to work normally.

Purchase software in advance before the end of the year will not all . Because in the 4th quarter of 2015, the state bodies and municipalities have already written everything, what is where and for what article. A software license can not be purchased from an arbitrary budget line. Accordingly, if the money for a “procurement purchase for the future” in the budget somehow does not appear, now it is impossible to plan. To transfer from article to article is to renegotiate the topics of procurement with the Ministry of Communications and the Ministry of Finance - a long process.

What to do?


If you are not a municipal or state agency, you can relax. Temporarily. In other cases, you will have to follow the updated practice of application.

You can also read here and here about the open-source, and here about the vendor replacement of infrastructure iron .

Interesting times await us in the IT field.

Source: https://habr.com/ru/post/267027/

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