Opinion of the Czech Chamber of Architects on the procedure of the Ministry of Culture of the Czech Republic and the Museum of Art in Olomouc regarding the public procurement for the Central European Forum Olomouc

The Czech Chamber of Architects announces to authorized architects and other interested parties that the Museum of Art in Olomouc, a state-funded organization located at Denisova 47, 771 11 Olomouc, is preparing in cooperation with the Ministry of Culture of the Czech Republic a public procurement for the "Central European Forum Olomouc," which is in violation of Euro-Atlantic competition standards and is irregular.

The Czech Chamber of Architects, having identified serious deficiencies in the preparation of the competition for the aforementioned investment, immediately initiated discussions with the contracting authority, which, however, were not successfully concluded, although members of the working group offered all necessary services and consultations to an extraordinary extent, including discussions with the Ministry of Culture employees responsible for law and public procurement.

The reason for the contracting authority's approach was a reference to the alleged contradiction of § 103 paragraph 3 of Act No. 137/2006 Coll., on Public Procurement, as amended, with provisions of the Competition Code of the Czech Chamber of Architects concerning prices and rewards. Despite existing legal analyses from several reputable lawyers, the contracting authority and the Ministry of Culture of the Czech Republic maintained the position that in the case of the Public Procurement Act, it is not permissible to pay awards and rewards to competing teams if the outcome of the competition for the proposal leads to the awarding of the public contract to the winners. However, the cited provision does not exclude the awarding of prizes and rewards and allows prizes and rewards to be awarded simultaneously to those who are not subsequently awarded the contract and who were evaluated in the competition, while allowing for the winner to be compensated for their prize in the form of a fee adjustment. The purpose and aim of the design competition is to obtain from the competition participants a specific proposal for the future subject of the contract; unlike other standard procedures for awarding public contracts, in this case, it is permissible for competitors to submit solutions from which the contracting authority (the competition announcer) can recognize to what extent each of the competing teams corresponds to the chosen solutions and the methods used to the client's opinion. Interpreting § 103 paragraph 3 of the Public Procurement Act as excluding the payment of prizes and rewards would lead to absurd consequences that the Ministry of Culture (among other things, also the guarantor of legal regulations for the protection of copyright and other intellectual property rights, as well as the issue of care for the architectural, urban, and heritage environment) cannot take seriously! In such a case, it would even be conceivable – and the proposed idea is a textbook example – that funds from the EU structural funds would not be available, the contract would not be awarded, and all architects would expend their efforts and costs amounting to at least several tens, but rather hundreds of thousands, for nothing.

The interpretation of legal regulations, like other fields, is subject to a certain logic. When applying legal regulations, certain established rules must be respected, as they are progressively established by judicial decision-making practice, especially in decisions of the Constitutional Court and judgments of the Supreme Administrative Court. In other words: for assessing the matter and interpreting valid law, one must rely not only on the text of the regulation itself but also on recognized legal principles that guide the application of legal norms. The result must primarily be predictable decisions and procedures, whose foundation is either undisputed legal regulation or such an application that interprets this broader legal environment in systemic contexts.

The Public Procurement Act explicitly presupposes the awarding of a public contract through a negotiation procedure without publication, that is, a process significantly simplified precisely because specific proposals for the future subject of the contract are presented, and this largely demonstrates the professional, technical, and other qualifications of the winners of the competition. In a similar manner, numerous contracts have already been awarded, in which prices and rewards for the efforts of competitors have been duly paid. Precisely because the Czech Chamber of Architects realizes that “the project Central European Forum Olomouc is a key and unique opportunity for the Museum of Art in Olomouc to carry out a reconstruction and extension of such magnitude from public funds that should resolve not only its issues for several generations ahead, but also fundamentally raise the visibility of the Czech Republic abroad, and not least also enable one of the largest contemporary architectural interventions in the environment of Czech historic cities”, it is questionable and surprising that the contracting authority, to whom the secrets of the profession of architects and urban planners, as well as the development of architecture, should be very intimately known, denies by its approach the basic assumptions for the possibility of proper and high-quality professional performance. The scope of the task requires an extraordinary level of creative effort from architects, to which even the awards and rewards amount to mere crumbs, and the majority of the work done will remain unrewarded. We see not the slightest reason to withdraw from such a fundamental requirement as the payment of prizes and rewards – repeated appeals to architects' responsibility for the public good only now and in the future obscure that the cultural and legal milieu in this country has not developed or cultivated in any fundamental way.

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Letter from Prof. PhDr. Pavel Zatloukal, Director of the Museum of Art Olomouc, to representatives of the Czech Chamber of Architects


Dear Sirs,

I would like to inform you of the outcome of the long-term preparations for the architectural competition for the Central European Forum in Olomouc (SEFO). As I have already informed you, it was supposed to consist of completing the reconstruction of the Museum of Art in Olomouc and a significant new building in its vicinity. Not due to the fault of those responsible for the preparation of the project, the event has experienced considerable delays – it was necessary to acquire eight plots, the majority of the owners (except for the city of Olomouc) almost blocked the project several times with their speculative claims. Only recently was it possible to adjust property rights to a level acceptable for the further continuation of the project. Thus, I once again explain and apologize for the delay of the event.

We immediately began preparing the architectural competition. Given that we are under considerable time pressure and that the acquisition of plots required significant financial resources, we ultimately started preparing the announcement of the competition according to the Public Procurement Act No. 137/2006 Coll. Based on § 102 paragraph 1, it was to be a one-round anonymous competition to obtain an architectural study, which would be followed by a public contract in a negotiation procedure without publication according to § 23 paragraph 6 of the cited Public Procurement Act. In short, the contract for the entire project was to be awarded to the winner of the competition. With the help of a specialized company, we prepared everything necessary, primarily the documentation, competition conditions, and assignment, and we also assembled what I believe to be a very representative jury. The competition was to be announced on July 7. However, when we approached the Czech Chamber of Architects (ČKA), we encountered rejection. You informed us that you considered the competition to be irregular and would impose disciplinary measures on any competitors or jurors who are its members if they participated in the competition. The dispute primarily flared up over the different readings of § 103 of the Public Procurement Act.

I quote: “(3) The contracting authority shall use the design competition if a) a public contract for services follows this competition, or b) based on this competition, the selected participant(s) in the design competition are to be awarded competition prizes or payments.” In our opinion, supported by the opinion of several lawyers from the Ministry of Culture, it means either – or; according to your opinion, it represents both. In other words, the law allows in the competition we chose to award a project contract to the winner, while according to ČKA’s view, prizes and rewards must also be awarded. If the law anticipated the possibility of using both forms of reward, in our opinion, it would have to add point c) or both.

There can be no doubt that the Public Procurement Act takes precedence over the rules of the ČKA. As a state-funded organization, we are unconditionally bound to adhere to it. Since we did not reach an agreement even after several weeks of discussions with the ČKA, we are forced to withdraw from the competition and proceed in another lawful manner.

We further believe that the ČKA's actions, which encourage non-compliance with the law, are irresponsible and inconsiderate and that they have significantly harmed the preparation of the SEFO project. I need not emphasize that it was to be a significant event in the center of the historical core of the city, costing about half a billion, and furthermore from public funds.

Thus, I want to at least explain to you, in this brief form, why the long-prepared competition will not take place.

Sincerely yours,

Prof. PhDr. Pavel Zatloukal
Director of the Museum

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> further documents regarding the SEF Olomouc competition can be found on the ČKA website