The previous two posts here have outlined the permitted ways by which public bodies can include local equality outcomes within contracts.
In a nutshell, the practicalities revolve around the importance of the “core purpose” of each procurement exercise. The general principle is the difference between (a) ‘just’ procuring a new school and (b) procuring better education, skills and economic wellbeing in community X in which a new school will be built.
The recent report by the Joseph Rowntree Foundation is here – http://www.jrf.org.uk/media-centre/community-benefit-clauses-public-funding-and-procurement-contracts-%E2%80%98can-be-legal%E2%80%99
Also useful here, the Equality and Human Rights Commission produced a guide in 2013 to public procurement and equality benefits, called Buying Better Outcomes. A key extract is:
“Equality clauses may be introduced under these arrangements relating to the performance of the contract, but they must:
- be compatible with EU rules (as determined by the Public Contract Regulations 2006 and any other related legislative requirements)
- be relevant and related to the performance of the contract
- not be a technical specification in disguise or used in the evaluation process
- not discriminate (directly or indirectly) against any potential tenderer
- be able to demonstrate that value for money is maintained, and that whole life costs are taken into account
- be proportionate and quantifiable
- be referred to in the contract notice or tender documentation, and
- be clear and unambiguous, and understood by tenderers and contractors.”
As pointed out in the first article, it would be helpful now for Treasury Solicitors to produce guidance for public officials on the operational steps to achieve local and equality benefits using public procurement.