The Scottish Government and the Equality and Human Rights Commission published guidance on the application of the public sector equality duty to procurement on 5 December 2013.
The guidance sets out what the obligations within the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 (the “2012 Regulations”) are in relation to procurement and then goes on to provide guidance to public sector buyers on how to discharge those obligations.
The guidance reiterates that the general equality duty came into force on 5 April 2011 through the Equality Act 2010 (the “2010 Act”) and requires public authorities to have due regard to the need to;
- Eliminate unlawful discrimination, harassment and victimisation and other conduct that is prohibited under the 2010 Act;
- Advance equality of opportunity between people who share a relevant protected characteristic and those who do not;
- Foster good relationships between people who share a protected characteristic and those who do not.
Those protected characteristics are age; disability; gender reassignment; pregnancy and maternity; race; religion or belief; sex and sexual orientation.
The subsequent 2012 Regulations placed a specific duty on public authorities caught by the 2010 Act to consider award criteria and conditions in relation to public procurement. This effectively requires a contracting authority to have due regard to whether the award criteria should include considerations to enable it to better perform the equality duty.
The guidance also flags that the general equality duty also applies to private or voluntary organisations carrying out a function of a public nature for the purposes of the Human Rights Act 1998 and that this would include, for example, “a private security company running a prison”.
It goes on to make it clear that the duty in the 2012 Regulations itself covers two main aspects. The first is that where a contracting authority proposes evaluating on the basis of the most economically advantageous tender, it “must have due regard to whether the award criteria should include considerations to enable it to better perform the equality duty”. Secondly, where a contracting authority proposes to stipulate conditions relating to performance of a relevant agreement it “must have due regard to whether the conditions should include considerations to enable it to better perform the equality duty.”
This means that contracting authorities must actively consider (and therefore be able to demonstrate that they have considered) the need to eliminate discrimination, advance equality of opportunity, and foster good relations. This will require evaluation, on each individual project, of the nature of the contract and how it relates to the general equality duty.
The guidance does note that the these considerations should be proportionate to the subject matter of the contract and flags, for example, that decisions relating to social care will need a higher degree of due regard to the general equality duty than a contract for the purchase of road maintenance supplies.
The guidance goes on to examine the various stages of a procurement and gives examples of what a contracting authority should do in order to discharge its obligations under the 2012 Regulations at each stage and includes guidance at OJEU, PQQ, ITT and Contract Award Stages.
The best approach for any contracting authority would be to actively consider the equality duty at the inception of any procurement process in order to ensure compliance.
A copy of the guidance itself is available here.