Overview
This PPN reminds departments of their legal obligations under the Public Sector Equality Duty (“PSED”), when conducting public procurement activities.
The PSED applies to the public bodies listed at Schedule 19 of the Equality Act 2010 (when exercising their functions, including procurement) and to other organisations when carrying out a public function (i.e. a function of a public nature for the purposes of the Human Rights Act 1998).
The PSED is outlined within section 149 of the Equality Act 2010. It is a non-delegable duty which requires public bodies, subject to the duty, to have “due regard” to the following three aims:
- the elimination of unlawful discrimination, harassment, victimisation and any other conduct prohibited by the Equality Act 2010
- the advancement of equality of opportunity between people who share a protected characteristic and people who do not, and
- the fostering of good relations between people who share a protected characteristic and people who do not share it.
The degree to which the equality-issue will be relevant will vary depending on the individual procurement and the stage of the procurement process. A case-by-case assessment is needed, and legal advice should be sought, where appropriate.
Objective at this commercial stage
Where bound by the PSED, contracting authorities must have due-regard to the three aims of the PSED where they are relevant to the subject-matter, or relate to the performance of the contract.
Key considerations at this commercial stage
Contracting authorities should:
- consider whether equality requirements are relevant to the contract subject-matter and have due-regard to the three PSED aims
- where subject to the PSED, keep a record of the process to demonstrate its due-regard to the three PSED aims (whether or not equality is relevant to what is being procured)
- undertake no further consideration or action where it is clear from the start of the procurement, having conducted pre-procurement engagement and in identifying the need, that equality is not relevant to what is being procured.
Legal framework
The PPN should be read alongside the relevant parts of the legal framework, including but not limited to, the following provisions of the Public Contracts Regulations 2015 (which may be particularly relevant to the consideration of this PPN):
- Regulation 18: Principles of procurement
- Regulation 58: Selection criteria
- Regulation 67: Contract award criteria
Additional support and guidance
Make sure you:
- read the PPN and any supporting implementation guidance
- seek legal and commercial advice in the context of specific procurements
