The facts
I.
AFD, which has been alongside Cité du design for a long time, maintains an intrinsic relationship of partnership with it, namely between a representative of the professional designers and an organisation that promotes them.
The project announcement was published in the Bulletin officiel des annonces de marchés publics Boamp.fr2 on November 28, 2012 and distributed by Cité du design. After having received complaints from a number of designers, the AFD sent an email message on November 29 to Cité du design to draw its attention to the fact that it was publishing a consultation contrary to the AFD Charter on Public Tenders as published and backed by our ministries in charge, namely those of Industry, Culture and Productive Recovery
We recognise that one cannot blame an airport for its lack of knowledge with regard to design, but we do regret the echoes from this announcement and we hope that Cité du design as a stakeholder in the sector will endeavour to correct this situation through examplary conduct and education. We ask Cité du design to:
— inform the company Aéroports de Lyon that their call for tenders is not in compliance with the Charter on calls for tenders;
— to teach and train a person within Cité du design to identify and no longer circulate this sort of call for tenders within our profession.
In a reply to our mail on December 4, Mr Ludovic Noël, Executive Director of Cité du design, wrote us that he has taken due note of our comments and elaborated on his arguments that we are quoting in full hereinbelow in order not to distort his words:
“Nevertheless, it is important here to consider that it was very complicated to get ADL3 to introduce the designers as clients in such a market and then to motivate ADL to circulate this offer in the designer network and not just in their usual network of providers of communication srvices and interior fittings. This is about not missing out on a worthwhile opportunity for designers to make themselves known with this sort of sponsors and to position themselves as project managers leading multi-disciplinary teams for this type of projects.
“This offer is eventually accessible to designers following long hard work by the Cité du design teams, involving multiple meetings with the various teams involved in the project and considerable educational and advisory efforts. ADL has thus accepted to delay the launch of its offer in order to integrate the Cité du design recommendations.
“During the different meetings, we clearly explained to ADL the procedures and principles associated with such large-scale consultations. Nevertheless, while ADL’s status today (CCIT having withdrawn from its management since 2005) does not force it to abide to a public procurement contracts policy, ADL is tacitly subject thereto as a result of the State concession for which it is responsible and wishes to continue in this direction by imposing a strict procurement and service provider management policy, scrupulously respecting the public procurement contract rules and regulations. We cannot blame them for that.
“For the design of the Tourist Information Centre, ADL did not want to proceed differently from its usual selection process, in which the indemnification of candidates not retained after the second selection (reply to specifications) is not provided for. ADL did not want to consider a call for designers different to a call for other service providers, despite our recommendations. Taking into account that ADL was informed of these principles but did not wish to retain them, we feel that their choice has to be respected, all the more so since it is included in their global procurement strategy.
“We have thus chosen not to miss an opportunity to make such a high quality reference and a €430k project accessible to designers, rather than insist on keeping the compensatory criteria at the risk of forcing ADL to abandon circulating its call to the designers’ network.
“Regarding the first phase in the selection of companies, it is not required to present a project draft but rather a letter of intent, describing reasons and approaches of the project typically involving numerous construction site management skills. The selection criteria are clear and unambiguous.
“In the second phase, the specifications and consultation will be sent to a shortlist of 4 to 6 candidates selected on the basis of these criteria, who are effectively invited to submit an offer, unremunerated. The offer production conditions are clearly set out to the candidates. We believe that it is up to the interested designers to seize the opportunity to make their work and skills known to ADL and to break into a large-scale market by putting efforts in the presentation of their offers, in keeping with the hopes they place in this consultation.
“Several designers have already thanked us for circulating this consultation, which appeared to them as a real opportunity and good progress towards being able to integrate design in a business environment not accustomed to it.
“Cité du design is committed to provide the best possible promotion of design trades, while at the same time providing the best possible guidance to companies that turn to us. We feel we have acted in this direction within the context of the case discussed hereinabove.”
“This offer is eventually accessible to designers following long hard work by the Cité du design teams, involving multiple meetings with the various teams involved in the project and considerable educational and advisory efforts. ADL has thus accepted to delay the launch of its offer in order to integrate the Cité du design recommendations.
“During the different meetings, we clearly explained to ADL the procedures and principles associated with such large-scale consultations. Nevertheless, while ADL’s status today (CCIT having withdrawn from its management since 2005) does not force it to abide to a public procurement contracts policy, ADL is tacitly subject thereto as a result of the State concession for which it is responsible and wishes to continue in this direction by imposing a strict procurement and service provider management policy, scrupulously respecting the public procurement contract rules and regulations. We cannot blame them for that.
“For the design of the Tourist Information Centre, ADL did not want to proceed differently from its usual selection process, in which the indemnification of candidates not retained after the second selection (reply to specifications) is not provided for. ADL did not want to consider a call for designers different to a call for other service providers, despite our recommendations. Taking into account that ADL was informed of these principles but did not wish to retain them, we feel that their choice has to be respected, all the more so since it is included in their global procurement strategy.
“We have thus chosen not to miss an opportunity to make such a high quality reference and a €430k project accessible to designers, rather than insist on keeping the compensatory criteria at the risk of forcing ADL to abandon circulating its call to the designers’ network.
“Regarding the first phase in the selection of companies, it is not required to present a project draft but rather a letter of intent, describing reasons and approaches of the project typically involving numerous construction site management skills. The selection criteria are clear and unambiguous.
“In the second phase, the specifications and consultation will be sent to a shortlist of 4 to 6 candidates selected on the basis of these criteria, who are effectively invited to submit an offer, unremunerated. The offer production conditions are clearly set out to the candidates. We believe that it is up to the interested designers to seize the opportunity to make their work and skills known to ADL and to break into a large-scale market by putting efforts in the presentation of their offers, in keeping with the hopes they place in this consultation.
“Several designers have already thanked us for circulating this consultation, which appeared to them as a real opportunity and good progress towards being able to integrate design in a business environment not accustomed to it.
“Cité du design is committed to provide the best possible promotion of design trades, while at the same time providing the best possible guidance to companies that turn to us. We feel we have acted in this direction within the context of the case discussed hereinabove.”
II.
While recognising the efforts made by Cité du design, we regret its lack of upstream dialogue with AFD to help it, which puts AFD in front of a fait accompli that is difficult to bear and that undermines the credibility of our commitment to act as partners.
As organiser of the exhibition JE • VOUS • DESIGN at the next Biennale internationale design Saint-Étienne (March 14 to 31, 2013), focused on the theme “Empathy or the experience of the other”, AFD attended the press conference in Paris held on December 6. AFD repeated their demands to Mr Ludovic Noël, by proposing the following indemnification example to reason with the Aéroport de Lyon and get away from the dispute, confirming in an email message dated December 12:
— By allocating 2.25% of a budget of €400,000, that would be € 9,000, enough to indemnify 3 competitors a €3,000 each, the 4th recouping the balance of the contract. I.e. 4 designers (or teams) in competition, selected by qualifications (see the Charter).
— Or: € 6,000 (1.5 % of the budget) to indemnify 2 competitors, the 3rd one being paid on the balance of the contract, enabling a competition with 3 designers (or teams) selected on qualifications.
Faced with the absence of a reply from Cité du design, we referred back to December 11 in an email message, stating that :
— no representative of the designer profession was involved in this consultation process;
— the Cité signed an introductory text to the AFD Charter on Public Tenders for Design, principles of which are not limited to public procurement contracts;
— the argument of the liberty of each individual used in the paragraph that starts by “In the second phase…” does not hold up, being the same logic as admitting that everyone is free to commit a crime if not seen or caught…
— finally, the call for tenders is contrary to the Professional code of ethics for designers (read the paragraph Law in Where is the Cité heading? hereinbelow); the designers are actually liable in legal proceedings instituted by AFD.
III.
Following a series of discussions by phone, Cité du design sent us the following email message at 10am on December 17:
“In an initial selection phase, the call for tenders published by ADL asked interested service providers to send a letter of intent, stating references and expertise/skills. Nothing non-compliant and an opportunity to open a market. This call ends on Monday December 17 at 12 noon.
In a second phase which will be launched after receiving the offers to the published RFQ, ADL plans to select 4 or 6 companies or groups. The contract is primarily targeted at the usual service providers, architects, town and country planning agencies who reply to their offers, with their operational rules. However, as Cité du design strongly urged them to open this RFQ to designers, and to address your query, we propose interceding with ADL to find out if designers have responded to the published call for tenders. We shall then let them know about your proposal for indemnification (…) and of the compliance with the professional code of ethics for designers (which we have done of course). We shall keep you informed.
Let’s plan a meeting in January with the various persons involved from Cité du design, in order to continue our respective missions. Please send us suggested dates to synchronize our agendas.”
In a second phase which will be launched after receiving the offers to the published RFQ, ADL plans to select 4 or 6 companies or groups. The contract is primarily targeted at the usual service providers, architects, town and country planning agencies who reply to their offers, with their operational rules. However, as Cité du design strongly urged them to open this RFQ to designers, and to address your query, we propose interceding with ADL to find out if designers have responded to the published call for tenders. We shall then let them know about your proposal for indemnification (…) and of the compliance with the professional code of ethics for designers (which we have done of course). We shall keep you informed.
Let’s plan a meeting in January with the various persons involved from Cité du design, in order to continue our respective missions. Please send us suggested dates to synchronize our agendas.”
To which we replied on the same day:
Dear Mr Executive Director of the St-Etienne Cité du design,
Further to our exchanges since November 29 on this call for tenders, we inform you that we are in complete disagreement with Cité du design’s current stance. It is indeed about a public procurement contract in contradiction with the introductory text signed by Cité du design in the AFD Charter.
Despite our expressed concerns, we have no guarantee of indemnification in the second phase (the litigation does not concern the first phase –a letter of application was acceptable).
You are putting AFD in the intolerable position of accomplice. Our other partners do not behave like this. We do not expect you to champion the work of designers like this.
Consequently, we inform you that as soon as tomorrow afternoon, we are compelled to publish an open letter to Cité du design in reply to this call for tenders, which we shall blacklist a posteriori in order to express our profound disagreement, in France with the ministries of Culture and Industry, the Order of Architects, the APCI…) and internationally, including: BEDA, ICSID, ICOGRADA, IDA, ACE, Unesco and more.
Further to our exchanges since November 29 on this call for tenders, we inform you that we are in complete disagreement with Cité du design’s current stance. It is indeed about a public procurement contract in contradiction with the introductory text signed by Cité du design in the AFD Charter.
Despite our expressed concerns, we have no guarantee of indemnification in the second phase (the litigation does not concern the first phase –a letter of application was acceptable).
You are putting AFD in the intolerable position of accomplice. Our other partners do not behave like this. We do not expect you to champion the work of designers like this.
Consequently, we inform you that as soon as tomorrow afternoon, we are compelled to publish an open letter to Cité du design in reply to this call for tenders, which we shall blacklist a posteriori in order to express our profound disagreement, in France with the ministries of Culture and Industry, the Order of Architects, the APCI…) and internationally, including: BEDA, ICSID, ICOGRADA, IDA, ACE, Unesco and more.
Open letter: Where is the Cité heading?
Unsustainable energy
AFD, just as all professional associations around the world notably represented by ACE, IFI, ICSID, ICOGRADA, and BEDA (of which the Cité is a member!) know that a client who does not understand that it is normal to remunerate the project drafts of architects and designers, could not be worthy of the energy deployed by an organisation like the Cité to introduce design into its project and that sooner or later, the relationship between the client and designer or architect would not progress as it should and would eventually bring litigation.
Waste of time
This experience shows very clearly that one cannot twist the arm of professional ethics, without the risk of consequences more disastrous than the simple withdrawal of an “unamenable client”.
Role
A public organisation cannot go against the ethics of a profession and it is not up to it to define the ethics of the profession of designer. This is the role of the professional associations.
Charter
One cannot, under the cover of opportunity, flout the professional code of ethics of a profession that one claims to want to promote.
Public procurement contract
It is published in the BOAMP, so it is indeed a public procurement contract (qED!).
Professional code of ethics
May the AFD legitimately enact a code of professional ethics? YES. This code is in line with the best practices enacted by key international organisations, such as ACE, IFI, ICSID, ICOGRADA, BEDA. In this respect, the AFD received congratulations from the ICSID for its work and it is already a benchmark for numerous professionals and students in France and beyond, like at the highly regarded School of Arts, Design and Architecture-Aalto University of Helsinki.
Same combat
From June 2006, speculative work is condemned by the AFD and by the National Council of the Order of Architects who had turned to the government for it to introduce into Article 49 of the CMP the concept of indemnity for intellectual work required during calls for tenders. Read more: Public procurement contracts: the AFD and the National Council of the Order of Architects notify the authorities (in French only).
Law
A “virtuous” designer (or group of designers) who respect this code in not replying to the non-indemnified calls for tenders from the public or private sector, would be entitled to file a complaint, including through the AFD, against an “unscrupulous” colleague for such motives as submitting to a RFQ for the purpose of distorting competition and unfair practices. A judge could consult the code of professional ethics as basis for his decision. He could also base his/her decision on this ministerial reply of 3 October 2006 – Ministry of the Economy, JOAN4 page 10351:
“Note from the Directorate of Legal Affairs of the Ministry of Economy – The absence of payment of subsidies could have the effect of restricting the contracts to only those candidates able to bear the financial burden of project development without compensation. The subsidy enables small organisations to have access to public contracts by reducing the costs necessary for the creation of a sketch or a project. It is one of the elements that guarantee the effectiveness of the public contract through preservation of a competitive market. The awarding authority has to calculate a sufficient level of subsidy that enables guaranteeing compliance with the principles of public contracts and in particular, those of free competition and equal treatment of candidates. Only a genuine remuneration of economic partners will guarantee a bona fide call for competition.”
Non-renewable Empathy
”Empathy is a mechanism through which an individual can feel, experience, understand the emotions, feelings or even the beliefs of others.” (www.citedudesign.com). As practitioners of design on a daily basis, we are always very surprised the way in which some organisations financed by public funds wish us well at any price.
Education
Through this example and the arguments it develops, the Cité shows design students and designers that it would be advisable to offer one’s ideas free of charge with the prospect of a contract. That is called speculative work and is forbidden by all professional designer organisations and by the Order of Architects because it is contrary to their professional codes of ethics.
Armed wing
”At the heart of the large-scale Rhône-Alpes project Le design dans la cité , Cité du design becomes the armed wing of public players.” (www.citedudesign.com) Against whom?
Directorate
Are there no designers in the directorate of Cité du design?
Renunciation
The fair compensation of any proposal of a tangible idea has been the key focus of the AFD for 10 years. It only took the Cité one year to disclaim its introductory text to the AFD Charter on Public Tenders on Design.
Opportunity
By this example, the Cité defends its interest and not those of the designers.
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1. The French Designers Alliance
2. The French Public Procurement Contracts Code
3. Lyon-Saint-Exupery Airport
