ARTWORK PURCHASES BY PUBLIC BODIES
By Claudia Massa, Partner
Public procurement of artwork is, in certain cases, an obligation. Apart from this obligation that we will touch upon here, public authorities have always practised this form of cultural commitment that obeys strict rules that neither managers nor the artists can be unaware of.
In France, for 65 years now, there is a legal obligation to decorate public constructions known as the “1% for arts”. This mechanism was set up in support of contemporary arts and crafts and to reach out to the general public. Its falls under the framework of a specific procurement procedure.
1% of the cost of building works, or extension works for public buildings, or renovation in the case of a change in the building purpose, must be spent on buying or ordering one or more artworks to be incorporated into the construction.
This obligation is now included in the Decree of 2002 for the State and its administrative public institutions, and in Article L.1616-1 of the General local authorities code for municipalities, districts and regions.
The operations concerned
The buildings exempt from this obligation are listed in a ruling and concern those used for military manoeuvres or activities, technical or industrial buildings, administrative detention centres, as also places of remembrance. There is also a specific provision for health institutions.
The artworks must be graphic or visual arts (drawing, painting, architecture, sculpture, etching, lithography, graphical and typographical art, photography, and applied art). The Decree includes artworks that use new technologies and those that “call on other artistic works”.
Ephemeral art is however not advisable, and the ministry for culture urges the public authorities to have the life of the artwork coincide with the life of the construction.
All artists who practice their art professionally are eligible, be they from France or abroad, provided that they fulfil the necessary social and tax obligations.
The Decree does not stipulate penalties should the obligation to buy artwork not be fulfilled, and an amendment presented in May 2016 to make it binding was rejected, as several local authorities declared having financial difficulties in implementing the “1% for arts” rule.
… but rules of procedure to abide by
Purchase orders for artworks under the “1% for arts” must be placed in keeping with a specific procedure set out in the Decree and in this case, on pain of the customary penalties applicable in public procurement.
If the “1%” represents an amount under €30,000 net of tax, the public body may either choose one or more existing artworks, after having consulted with the prime contractor, the user of the construction and the regional director of cultural affairs, or place an order for one or more works in keeping with the procedure set down by the Decree: constitute an arts committee that will establish the programme for the order for artwork (nature, location, etc.) and publish that programme …
The choice made by the construction owner must be substantiated and advertised. It may be reviewed by the Court under standard public procurement measures (pre-contract referral arrangements, contract referral arrangements, etc.).
If the 1% represents an amount exceeding €30,000 net of tax, the public body must abide by the procedure set out in the aforementioned Decree.
The ministry for culture and communication provides a platform for informing artists at: http://www.culturecommunication.gouv.fr/Aides-demarches/Dispositifs-specifiques/Le-1-artistique/Consulter-les-appels-a-candidature
2. IN ALL EVENTS, A COMMITMENT THAT MUST FOLLOW CERTAIN RULES
Needless to say, public bodies may purchase artworks outside the “1% for arts” rule.
Before 1 April 2016, when the new public procurement system entered into force, procurement contracts for existing art works and artefacts, antiques or collector items did not come under the Public procurement code and the Ordinance of 6 June 2005.
This exemption has been removed.
At present, if the public body can demonstrate that the chosen artist is the only one to meet its requirements in terms of artistic considerations, the order for artwork or the purchase of an existing artwork will not require advertising or competition call (Article 30 I 3° of the Decree of 25 March 2016).
It must be noted that this justification will be interpreted strictly. For example, under the former texts, the order for a monumental fountain was not deemed to fall under this exception. Despite its being original in nature, and calling for builders with specific skills and artistic talent, it could not be demonstrated that the stone mason was the sole artist capable of making that sculpture.
Apart from the cases where the artist is the sole person to meet the requirements of the public body, if the purchase amount considered is less than €25,000 net of tax, the buyer’s only obligations are to choose an suitable offer, make proper use of public funds, and not contract at all times with the same supplier when it has received several offers that are likely to satisfy its requirement.
If, however, the amount exceeds €25,000, the buyer must apply the procedures set out in the Order and the Decree of 2016, which may be more or less stringent depending on the amount considered.
Public procurement is a driver of economic development and can be so for cultural development, offering opportunities not only to companies but also to artists.
(1) Decree 2002-677 of 29 April 2002 on the obligation to decorate public constructions that sets down the terms of procurement to fulfil this obligation
(2) Ruling of 22 March 2005 in application of Article 1 of Decree 2002-677