Public sector equality duty and procurement

Although there has been much focus on the coming into force of the Public Services (Social Value) Act 2012 on 31 January 2013 (see our article, Time to consider social value), there are other legal drivers to look at in terms of added benefit in procurement and commissioning.

One such is the Public Sector Equality Duty (PSED) under the Equality Act 2010. The Equalities and Human Rights Commission have recently issued a guide for public authorities in England: ‘Buying Better Outcomes‘, which is a timely reminder that this too needs to be addressed as part of the commissioning and procurement cycle.

Although with a different emphasis to the Social Value Act, the PSED has a wider application. Unlike the Social Value Act which applies when procuring service contracts to which the Public Contracts Regulations apply, the PSED potentially needs to be considered in respect of all commissioning and procurement, whether for services (including those currently exempt), supplies or works, and regardless of whether the value will exceed the EU threshold.

It applies to a slightly different set of public bodies; the test is not whether they are a contracting authority under the Public Contracts Regulations, but whether they are specified in Schedule 19 to the Act. It also applies to a person who is not a public authority but who exercises public functions.

A relevant element of the duty is to have due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it, in particular, to the need to:

  • remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic
  • take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it
  • encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.

The relevant protected characteristics are: age; disability; gender reassignment; pregnancy and maternity; race; religion or belief; sex; sexual orientation.

The scope to seek to secure such objectives will clearly vary dependent on what is to be procured. The guide however gives a number of examples illustrating where it may be very relevant:

  • maximising accessibility to disabled children of equipment being acquired for a play area
  • provision of social care

Again, as with the Social Value Act, the duty is to give due consideration to the question. That does not pre-suppose an answer. If the procuring body decides that there are no equalities benefits that could be achieved or that any achievable would not be perhaps proportionate to additional expenditure that might be involved, that is no breach of the duty, so long as the question has been given due consideration.

If the decision is to seek to achieve an equalities benefit, what is done will need to be consistent with procurement law, and with the Regulations in cases where they apply. However, that is not necessarily a major hurdle. The current EU regime recognises the need for social and environmental aspects to be addressed in procurement and incorporates a number of provisions to allow this to happen. For example, it is possible to designate a contract as a Reserved Contract and restrict those entitled to bid to operators where more than 50 per cent of the workers are disabled persons. The direction of travel under the new Directive currently under consideration by the EU increases the ability to recognise such issues in a procurement. For example, accessibility is recognised as a material consideration in terms of quality assurance standards and environmental management standards, technical specification and award criteria.

There may therefore be scope under procurement law for including equalities considerations at every stage of the procurement cycle if that is considered appropriate from specifying the requirements through to selection and award criteria, terms and conditions of contract and contract management. However, the time to consider these matters is as part of the preparation for the procurement so that there can be considered what is appropriate and proportionate and how to structure the procurement to best achieve those objectives within the law.

Failure to give due consideration, as with the duty under the Social Value Act, could leave a public body liable to challenge. There have already been a number of high profile judicial reviews brought alleging failure to comply with the PSED in other contexts. Some have been successful, some unsuccessful, but even those which have been unsuccessful have had the potential to cause delay, expense and embarrassment to the body in question.

To guard against this, public bodies should therefore look to make it an integral part of their commissioning and procurement processes to give consideration to equality considerations under the PSED as required by the Equality Act and, where appropriate, alongside consideration of the social value issues under the 2012 Act. In addition, a record should be kept recording the consideration and the reasoning behind the decision taken.

The Cabinet Office has also recently issued a Procurement Policy Note on the PSED and we cover that in Round-up of the rest.