Where appropriate, relevant stakeholders should be invited to feed into the process of drawing up the specification to help inform and define the requirement.
As permitted by regulation 38 of the Public Contracts Regulations 2006, it is recommended that public authorities seriously consider including, in works or services contract documents, information as to where contractors may obtain details of their employment and working conditions obligations under the SDA, the EqPA and the gender equality duty.
If the above information has been provided, public authorities must8 request that tenderers or candidates indicate, in preparing their tenders or in negotiating the contract, that they have taken into account their employment obligations under the SDA, EqPA or equivalent European legislation. Public authorities may wish to refer contractors to where they may obtain advice in this regard.
Selection stage and award stage
Consider the technical skills and capabilities of candidates where they are relevant to the contract and linked to gender equality, for example staff management training.
Regulation 23 of the Public Contracts Regulations 2006 permits the exclusion of candidates or tenderers at the selection stage for relevant convictions or findings of grave misconduct (for example, sufficiently serious findings against them in an Employment Tribunal or County Court under the SDA or the EqPA). With a view to discharging the gender duty, it is recommended that public authorities exclude such tenderers/candidates, unless those tenderers/candidates can show, where appropriate, that effective steps have been taken to resolve the issue. For example, they could be requested to set out what action they have taken to ensure that the discrimination is not repeated, such as amendment of discriminatory policies or practices.
Ensure that the duty to have due regard to the need to eliminate unlawful discrimination and harassment and promote equality of opportunity between men and women is appropriately addressed and given due weight in the selection9 and award10 criteria in a way which is consistent with European Union procurement rules.
Terms and conditions
8 in accordance with regulation 38 of the Public Contracts Regulations 2006 and Article 27 Directive 2004/18/EC.
9 in accordance with regulations 23-29 of the Public Contracts Regulations 2006 and Articles 45-52 of Directive 2004/18/EC.
10 Article 53 of European Council Directive 2004/18/EC and regulation 30 of the Public Contracts Regulations 2006 state that the award of a public contract must be made on the basis either of the most economically advantageous tender from the point of view of the contracting authority based on criteria linked to the subject matter of the public contract in question, or the lowest price. The earlier judgement of Case C-513/99, Concordia Bus Finland v Helsinki must, in accordance with normal practice, be read in light of Directive 2004/18/EC. The case provides that, in awarding a contract, a public authority must ensure that such criteria are mentioned in the contract document or tender notice; that the criteria do not confer unrestricted freedom on the authority and that the criteria comply with all the fundamental principles of UK and EC law, particularly the principle of non-discrimination (between Member States).