The exception for artistic performance was not applicable when Örebrokompaniet purchased event services without prior notice. The company is thus guilty of an illegal direct award of contract and the Swedish Competition Authority is now presenting a claim for Örebrokompaniet to be ordered to pay a SEK 220,000 procurement fine.
It was in the autumn of 2019 that the municipal company Örebrokompaniet AB entered into a contract with a concept and production company to stage the production of “Den magiska maskinen 2019” (The magic machine 2019), a projection show to be displayed at Örebro castle throughout December. On the same day, Örebrokompaniet also contracted the same production company to manage a special new year’s programme. The total value of the contracts is SEK 2,930,000.
According to Örebrokompaniet, this was a case of creating or acquiring a unique artistic performance. Therefore, the artistic performance exemption in the Public Procurement Act (LOU) is applicable, according to the company.
The Swedish Competition Authority believes that it is a case of illegal direct award, as the conditions for applying the artistic performance exemption were not met when Örebrokompaniet purchased the event services. What preceded the procurement does not prove that the company intended to acquire a unique artistic performance or a unique work of art.
“The artistic performance exemption shall, as other exemptions in the procurement legislation, be applied restrictively. The conditions for applying the exemptions are limited and the general rule is that giving notice is required in order to ensure competition by allowing more suppliers to submit tenders,” says Rikard Jermsten, Director General of the Swedish Competition Authority.
The Swedish Competition Authority is now turning to the Administrative Court in Karlstad, petitioning for Örebrokompaniet to be ordered to pay a procurement fine of SEK 220,000.
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