Cabinet Office issues policy note on public sector equality duty and procurement

The Cabinet Office has issued a reminder to Government departments of their legal obligations under the public sector equality duty, when conducting their public procurement activities.

In a procurement policy note (PPN), it said: “When conducting their procurement activities, central Government departments and their agencies must ensure that they meet their legal obligations under the Equality Act 2010 and its associated public sector equality duty in a way that is consistent with the Government’s value for money policy and relevant public procurement law.”

The PPN covers:

  • What is the public sector equality duty?
  • Who does the duty apply to?
  • ‘Due regard’ and assessing relevance
  • Ensuring transparency
  • An annex on incorporating equality into the public procurement process.

The note said that in terms of public procurement, departments should be aware of contracting out a service to which the PSED applies.

“If a department is contracting out a service to which the PSED applies, the department will need to consider whether the contractor would need to meet certain requirements of the PSED in carrying out that service so that the department can fulfil its duty,” it said.

The Cabinet also highlighted cases where a public function is being contracted out.

“The successful contractor will be required to fulfil the requirements of the PSED in respect of the public function that it is performing but not beyond that function, e.g. in its wider business/functions,” the note said.

“Although this is a statutory duty on the contractor, it would usually be set out in the contract conditions. In addition to the statutory duty on the contractor, the department’s PSED itself is non-delegable and so, the public body subject to the PSED remains liable for compliance with its duty and not the contractor.”

On the issue of ‘due regard’, the note said that in the context of public procurement this meant “consciously considering the relevance of the three aims of the duty to the individual procurement and ensuring that where equality issues are incorporated into the procurement process, it is done in a proportionate way (i.e. the actions taken are proportionate to the degree of relevance of the equality issue to the individual procurement), taking into account value for money”.

The note added that it was important that the issues “are looked at substantively and with an open mind….it is not enough to just note that there will be no negative impact, as there are parts of the duty which look at whether positive improvements can be made.”

The PPN added that it was good practice for those subject to the duty to keep a record of the process of consideration to help demonstrate they have given real consideration to the three aims (whether or not equality is relevant to what is being procured).

The degree of relevance of equality will vary depending on the individual procurement, the note said. However, the PPN also set out in which situations in relation to services, goods and works, the degree of relevance would likely be greater.

The Cabinet Office stressed that the PPN was not a comprehensive guide to the duty, but a summary of how the duty can be taken into account when conducte public procurement.

The policy note can be viewed here

Philip Hoult