From 4 December 2006, the Disability Discrimination Act 2005 imposes a new duty on public authorities (known as the disability equality duty or DED) that requires them, in carrying out their functions, have due regard to the need to:
- promote equality of opportunity between disabled persons and other persons;
- eliminate discrimination that is unlawful under the Act;
- eliminate harassment of disabled persons that is related to their disabilities;
- promote positive attitudes towards disabled persons;
- encourage participation by disabled persons in public life; and
- take steps to take account of disabled persons’ disabilities, even where that involves treating disabled persons more favourably than other persons.
The disability equality duty, which comes into effect on 4 December 2006, clearly applies to every public authority when 'carrying on its functions'. But when an authority is procuring goods, services or works in the exercise of its functions how far must it adapt its procurement practices to ensure it is DED compliant?
Primacy of EC law – risk of inconsistencies
The complication faced by public authorities in this context is that, particularly for higher value contracts, their procurement practice is governed not only by UK law but also by EC law, i.e., the public procurement directives. As the requirements of EC law override any inconsistent provision of national law, the disability equality duty will only bind public authorities to the extent that it is consistent with the public procurement directives.
One key area in which possible inconsistency may arise is that of contract award criteria. The relevant procurement rules permit a public authority to award contracts to the supplier making the most 'economically advantageous' offer. In assessing competing offers against this test, the authority must only use, "criteria linked to the subject matter of the contract".
The procurement rules do permit contracting authorities, when laying down technical specifications for the products or services they are procuring, to take into account accessibility criteria for disabled persons. They also permit preferences to be given to suppliers operating 'supported factories' (where the majority of workers are unable by reason of disability to take up work in the open market). However, beyond these particular cases, the procurement rules do not explicitly permit contracting authorities to take disability equality considerations into account when choosing between competing bidders.
The Disability Rights Commission has yet to provide specific guidance as to the interplay of the DED and the contract award criteria requirements of the procurement rules. However, some useful material can be gleaned from the procurement guidance issued to public authorities by the Commission for Racial Equality (CRE) in relation to the similar race equality duty.
CRE guidance on procurement
The CRE's guidance, which is available on their website, has developed a useful test for public authorities to apply in order to assess whether race equality is a 'core requirement' of a contract (where it ought to be safe to treat race equality criteria as linked to the subject matter of the contract within the meaning of the procurement rules) or an 'additional requirement' of a contract (where applying race equality criteria may be more problematic). The CRE has suggested the following five questions to help determine whether race equality is a 'core requirement' of any contract:-
- What is to be provided under the contract?
- Is the provision of the goods, works, or services in question one of the functions or policies the authority has assessed as being relevant to meeting the duty to promote race equality?
- Is the provision of the goods, works, or services in question likely to affect, directly or indirectly, the authority's ability to meet the duty to promote race equality?
- If the answer to questions 2 or 3 is yes, is it necessary to include requirements for promoting race equality in the contract, to make sure the authority meets the duty?
- If the answer to question 4 is yes, what race equality requirements are appropriate for the contract?
Importantly, by using the concepts of necessity and appropriateness, these questions help to ensure that the use of race equality criteria is proportionate in the context of the overall procurement exercise.
The CRE guidance gives examples of contracts in which the 'core requirement' test may be met and includes contracts where goods supplied need to be capable of meeting the needs of particular racial groups (e.g. a contract for the supply of prepared meals which includes a requirement to supply meals that are suitable for Caribbean and Chinese diets, as well as meeting certain religious requirements – such as halal, kosher and beef-free meals).
By contrast, the guidance describes other situations where race equality may not be a core requirement and may instead only be an 'additional requirement'. The guidance describes this situation as follows:-
"In some cases where it is not a core requirement, you may find that promoting race equality will add value to a contract within the broader context of your policies on equal opportunities, social cohesion, community well-being, or economic development. For example, in a contract to build a new office building, there will be added value if the contractor undertakes to provide training for people from racial groups that are under-represented among people doing particular jobs".
The guidance is somewhat equivocal about an authority's ability to choose between competing bidders on the basis of such an 'additional requirement'. On the one hand, the guidance contemplates its use in 'the exceptional case' in order to distinguish between two or more tenders who were otherwise offering equally economically advantageous bids. On the other, the guidance cautions that it should only be done if the relevant additional criterion had been stated in the relevant invitation to tender or contract notice and if "it does not breach EC law".
It will be interesting to see the approach that the Disability Rights Commission (which, from October 2007 becomes part of the Commission for Equality and Human Rights) takes in developing its own guidance on the interplay between the DED and the EC procurement rules and whether, for instance, it uses a similar core requirement/additional requirement test.
Meantime, public authorities will have to consider carefully how to balance their UK and EC responsibilities in procuring goods, services and works.