Can contracts in the field of arts and culture be exempted from advertising and competitive bidding?
Publié le 4 Oct 2022
Par Cornélie Durrleman

Art and culture are not exempt from the rules of public procurement, as the case of the Fête de Tuiles in Grenoble reminds us. 

In 2015 and 2016, the contracts for this festival were not preceded by advertising and competitive bidding . This absence had important consequences. Indeed, for this reason, the mayor of Grenoble and the holder of the contracts in question are currently accused of favouritism and will be tried by the criminal courts at the end of 2022. The criminal court will judge whether there has indeed been an offence of favouritism. 

While it is true that, because of the artistic exception, certain contracts in the field of culture and art could be exempted from advertising and competitive tendering, the fact remains that the artistic exception must be handled with great care, as this case has shown. Moreover, the artistic exception is not necessarily useful to invoke since contracts in the field of culture and art can be concluded via simplified advertising and competitive tendering procedures, as explained below. 

  1. Entering into a contract for the organisation of cultural events or a festival without advertising and competitive tendering exposes significant risks
  1. The artistic exception regime can be used in very rare cases

The possibility of awarding a contract without prior advertising or competitive tendering is possible in certain cases under the terms of Article L. 2122-1 of the Public Order Code, including that of the “artistic exception”. 

Article R. 2122-3 of the Public Procurement Code provides that “The purchaser may award a contract without prior advertising or competitive tendering when the works, supplies or services can only be provided by a specific economic operator, for one of the following reasons: 1° The purpose of the contract is the creation or acquisition of a work of art or a unique artistic performance…”. 

These conditions are understood very restrictively by the administrative judge, as underlined by the Directorate of Legal Affairs on the website of the Ministry of the Economy.  

It is up to the purchaser to justify that the choice of a service provider is based on “particular artistic reasons” and that the artistic services could not have been provided by other operators with equivalent skills and technical or artistic resources for comparable results .

Thus, the use of a contract without advertising or competitive tendering was not considered justified on these grounds: 

  • When the purchaser entrusted associations with the organisation and artistic direction of a departmental festival without establishing how these services could not have been performed by other bodies ; 
  • When the purchaser has not been able to justify the commissioning of a monumental sculpture to be placed in the public domain exclusively to an artist ; 
  • Where the buyer could not establish that, even though the fountain commissioned, because of its original character, required special skills and artistic talent on the part of the builders, the chosen stonemason was the only one capable of producing the sculpture . 

Consequently, it is not enough to prove that the holder is well known in his field of specialisation, it is also necessary to prove that he is the only one who can produce the work requested in order to be able to use the artistic exception. 

1.2 Irregular use of the artistic exception regime entails significant risks

  1. Three legal risks
  1. The risk that a third party with an interest in acting, an elected member of the deliberative body of the contracting authority, or the prefect will refer the matter to the judge to have the contract annulled, either through an emergency procedure before the contract is signed or through an appeal on the merits after the contract is signed; 
  1. risk that the regional audit chamber, when examining the accounts of the contracting authority, considers this procedure to be irregular and makes this known in its publicly available observations;
  1. criminal risk for the offence of favouritism. This offence, defined in Article 432-14 of the Criminal Code, punishes the granting of an unjustified advantage to a third party in the context of the award of a public contract. The failure to advertise and invite competition always constitutes an offence of favouritism. It should be noted that the persons awarded contracts awarded with favouritism may also be prosecuted for receiving the offence of favouritism or for complicity.

1.2.2. These legal risks have a high probability of occurrence 

A topical and recent example is that of the contracts relating to the organisation of the Fête des Tuiles of the City of Grenoble.

300,000 for the design and implementation of the 2015 and 2016 Fête des Tuiles without any advertising or competitive bidding, using the artistic exception regime

In its report on the city’s accounts, the Auvergne-Rhône-Alpes regional chamber of accounts (CRC) considered that the invocation of the artistic exception was not possible in view of several elements, including the fact that the show had been created for the event by the contract holder, that the contract holder had responded to a need expressed by the municipality, as proven by the conclusion of the study contracts prior to the production of the show, and that it was therefore not the initiative of the project . 

The mayor and several officials of the association that received the contract are currently facing criminal proceedings for the offence of favouritism

The risk therefore concerns both the contracting authority and the contract holder. 

  1. A legally secure solution is to conclude a contract after a streamlined competition procedure including a negotiation procedure

Adapted procedure contracts, known as MAPAs, are contracts concluded following a simplified advertising and competitive procedure. 

Article R. 2123-1(3) of the Public Procurement Code provides that this procedure is applicable to contracts “for social and other specific services, the list of which is set out in a notice annexed to this Code, regardless of the estimated value of the need”

The list of services concerned includes 

– recreational, cultural and religious services“;

– services for the organisation of exhibitions, fairs, congresses, seminars, events, festivals, parties, fashion shows“;

– recreational, cultural and sports services“.

This list allows for the inclusion of performances related to cultural events.  

Adapted” procedure means that the advertising must be adapted to the amount of the contract and the nature of the services ordered. 35,000, could not be advertised only in a local newspaper, even though it required “recent references in the field of design and programming of large museums” . 

In conclusion, in the case of contracts relating to the organisation of festivals, the creation of shows or cultural events, it is preferable not to seek to bring the artistic exception into play in view of the significant legal risks, in particular criminal risks, incurred. This seems all the more unnecessary as these contracts can be awarded under an adapted procedure which offers greater flexibility to contracting authorities. 

The awarding and conclusion of contracts in the field of culture and art requires a detailed knowledge of the rules of public procurement. 

We have experience in this field and we will be happy to put it at your disposal to help you carry out your projects.