Procurement and partnerships
Procurement is the process by which a public authority enters into a contract with an external contractor to carry out works or provide goods or services. The term encompasses the full range of public authority contracts, including private finance initiative (PFI) projects and public private partnerships (PPP).
The gender equality duty applies to those functions which are carried out through procurement as well as those which are carried out directly by the public authority itself. The procurement process is important to the effective implementation of the general duty because public authorities enter into large numbers of contracts with private and voluntary organisations for goods, works and services.
Where a contractor is carrying out a public function on behalf of a public authority, the legal liability for the gender duty in relation to that function remains with the public authority which contracts out the function. (For details of when contractors are also subject to the duty, see Appendix A.) This means that public authorities will need to build relevant gender equality considerations into the procurement process, to ensure that all the public authority’s functions meet the requirements of the statutory duty, regardless of who is carrying them out.
The duty requires public authorities to have due regard to the need to eliminate unlawful discrimination and harassment and to promote equality of opportunity between men and women. This means that the weight given to gender equality should be proportionate to its relevance to a particular procurement. (See Chapter 2 for more information on proportionality and relevance.) The EOC will produce supporting guidance on procurement.
It is recommended that public authorities take the following steps to assist them in meeting the gender equality duty where contractors provide goods, works or services on their behalf.
Preliminary stages: identifying need, setting specification and invitations to tender:
Provide training for all staff involved in procurement work so that they fully understand the provisions of the SDA and Equal Pay Act 1970 (EqPA), including the duty, where relevant to their work, and what they need to do to ensure compliance.
Use resources such as departmental equality teams, the Office of Government Commerce's ‘Social Issues in Purchasing’ guidance and tools and information from the EOC’s website (including guidance on Gender Impact Assessment) to ensure that all procurement is conducted consistently with the public authority’s statutory gender equality duty.
The relevance of gender equality issues to a specific procurement contract should be identified at the beginning of a procurement, when identifying need and setting the business case, and reflected as necessary in the contract notice and contract documents, including the technical specifications and the terms and conditions of the contract, in accordance with UK and EC procurement rules.