The preconditions for applying an exception for artistic portrayal were not fulfilled when Statens Konstråd, the Swedish Public Art Agency purchased an artistic portrayal in the form of a curtain for Linköping University without making a public call for tenders. The Swedish Competition Authority considers this an illegal direct award of contract and petitions that the Public Art Agency be sentenced to pay a procurement fine in the amount of SEK 105,000.
In the spring of 2017, the Public Art Agency participated in a consultation group with the intention of purchasing a textile curtain for the lobby of Studenthuset at Linköping University. Six artists were selected, and their works studied on the basis of a specification of requirements that had been developed.
At a later date, one of them signed an agreement to construct the work of art whose price amounted to SEK 1,140,000. The reasons given as to why the agreement was signed without a prior public call for tenders according to the Swedish Public Procurement Act, was the fact that the purpose of the acquisition was to acquire a unique work of art that could be provided only by the chosen artist. One potential supplier applied for a review of the validity of the agreement.
The Administrative Court of Stockholm found that the requirements in the procurement were so widely held that a larger circle of artists should have been able to submit tenders. Therefore, since the exception for artistic performance was not applicable, the agreement was declared invalid.
The Swedish Competition Authority was informed that the Public Art Agency did not act in accordance with the judgment and therefore chose to prioritise a supervisory case on a procurement fine. The Swedish Competition Authority makes the same assessment as the administrative court has and now appeals to the Administrative Court in Stockholm with the petition that the court sentence the Public Art Agency to pay a procurement fine in the amount of SEK 105,000 for the illegal direct award of contract.
The fact that the Public Art Agency has not complied with the invalidation judgment is an aggravating circumstance, in the view of the Swedish Competition Authority.
“It is useful to have further clarity on where the boundaries lie in regard to the obligation to make a public call for tenders when purchasing works of art and when the exception for artistic presentation can be applied,” comments the Swedish Competition Authority's Director General Rikard Jermsten.
“In this case, it is also a contracting public agency that has not complied with a court decision, which in and of itself is a serious matter. There is a risk of eroding respect for the procurement rules, and for court decisions.”
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