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September 9, 2026 • 6 min read • By The Public Code US Team

Europe Can Now Prefer European Software. America Can't Even Prefer Open Software.

The EU's proposed Public Procurement Act writes 'European preference' into public buying for the first time. Combined with the open source strategy, it stacks the deck against US proprietary vendors — and shows what procurement power looks like.

A gavel striking beside the words European preference with a 30 percent quality-over-price badge

Europe Can Now Prefer European Software. America Can’t Even Prefer Open Software.

On September 9, 2026, the European Commission proposed replacing three public procurement directives with a single regulation: the EU Public Procurement Act. For the first time, it writes what the Commission calls a horizontal framework of “European preference” into public purchasing.

Read that again, slowly, from the perspective of an American taxpayer. The European Union — a bloc of 27 countries — just gave its cities, regions, and agencies explicit legal cover to prefer European software, exclude vendors from countries that don’t reciprocate, and weight quality at 30% or more of every award decision.

Meanwhile, in the United States, federal procurement still can’t muster a binding preference for open software — the kind taxpayers already paid to develop.

What’s Actually in the Proposal

The details matter, because the internet immediately started inventing provisions that aren’t there. Here’s what’s confirmed, from the Commission’s proposal as reported by Yeandel and corroborated by same-day coverage from Il Sole 24 Ore, Euronews, and Reuters:

  • One regulation replaces three directives (2014/23/EU, 2014/24/EU, 2014/25/EU) — directly applicable, no transposition lottery across member states.
  • European preference, horizontally. Contracting authorities in strategic sectors — energy, water, railways, ports, airports, postal services among them — will be able to favor European offers.
  • Reciprocity-based exclusion. Buyers can exclude bidders from countries that don’t grant reciprocal access to their own markets. Covered countries include Norway, Switzerland, Japan, Australia, and New Zealand. China, India, and the United States are not covered.
  • Quality over price. At least 30% of an award decision must rest on quality criteria rather than price alone — rising to 50% for labour-intensive contracts. The race to the bottom on price, where the cheapest proprietary bid wins and the lock-in bill arrives later, gets a legal counterweight.
  • Security exclusions. Authorities can exclude bidders on reliability and security grounds — even EU-incorporated subsidiaries of non-EU parents.
  • Defense is excluded from the framework.

Commission Vice President Stéphane Séjourné, never one for subtlety: “Public money must serve our collective interests… A municipality will be very clearly able to exclude a Chinese company.”

And what it doesn’t do: a widely circulated claim that bids with less than 50% European content can be excluded is not in the Commission’s material. Only reciprocity-based exclusion and the quality weighting are supported. We flag it because precision is the whole point of this campaign — the other side will use any exaggeration to discredit the real provisions.

How It Stacks

The Procurement Act doesn’t operate alone. It lands on top of two other 2026 instruments, and the three stack:

  1. The Open Source Strategy (June 2026) creates a technology preference: “open source first” for cloud and AI procurement, plus “public money, public code.”
  2. The Cloud and AI Development Act creates a sovereignty preference: escalating requirements up to EU ownership, EU control, and personnel citizenship for sensitive workloads.
  3. The Procurement Act creates an origin and criteria framework: European preference plus mandatory quality weighting.

An EU-based open source vendor now gets three tailwinds. A US proprietary vendor faces three headwinds. That’s not an accident — it’s industrial policy with the serial numbers filed into law.

Honest caveats: the preference is permissive, not mandatory — buyers may restrict, not must. The strategy provisions are non-binding. CADA is a proposal with an 18-to-24-month adoption runway. Near-term effects depend on implementation, and European procurement reform has a long history of bold proposals meeting sleepy contracting authorities. But the legal architecture now exists, and architecture is downstream of will.

The American Contrast

Now the uncomfortable part. US federal procurement:

  • Has an “open source preference” in the 2016 Federal Source Code Policy that was never implemented with anything like the rigor of “cloud first” or commercial-off-the-shelf preferences.
  • Passed the SHARE IT Act in 2024 — genuine progress, agencies must now share custom code — while still letting the vast majority of taxpayer-funded custom software stay proprietary.
  • Spends over $100 billion a year on IT through contracts that produce systems nobody can audit, reuse, or verify.
  • Cannot, as a matter of stated policy, prefer software the public already owns.

Europe looked at the same vendor lock-in, the same duplication, the same sovereignty exposure — and built a legal framework that lets a municipality choose European, open, auditable software and defend the choice in court. America looked at the same problems and produced guidance documents with exception clauses.

Procurement is where “public money, public code” becomes enforceable or evaporates. Europe just picked up the enforcement tool. The United States hasn’t even picked up the principle.

What We’d Do With That Power

Imagine a US procurement regime with teeth: every custom system bought with public money ships with its source code in a public repository. Quality criteria — auditability, exit rights, data portability — weighted at 30% or more of every award. Reciprocity logic turned inward: vendors that lock governments in lose the next contract.

That’s not fantasy. It’s the EU’s September 2026 proposal with the serial numbers changed. The only missing ingredient in America is the political will — which is exactly what ballot initiatives are for.

  1. Sign the petition. Make it political to oppose public code.

  2. Contact your representatives. Europe rewrote procurement law. Ask yours why America can’t.

  3. Get organized in your state. States buy billions in software too. The ballot box is the procurement reform Washington won’t pass.

  4. Share this post. “European preference” is now EU law-in-progress. “Open preference” isn’t even US policy.

Read more: Europe Just Bet €2 Billion on Public Code. America Is Still Writing Blank Checks. · The $755 Billion Black Box: Why You Can’t Know What Deloitte Built With Your Money · You’re Paying the Vendor Lock-In Tax. Every Single Year.

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