Sustainable requirements can be incorporated into technical specifications, award criteria or contract conditions; however the principles of equal treatment, nondiscrimination, transparency and proportionality are essential and require clarity and precision.
Technical specifications must relate to the characteristics of the particular work, supply or service being purchased, and not to the general capacities or qualities of the bidder.
This is where a buyer should think about whether award criteria and / or conditions related to the performance of a relevant contract or framework agreement should include considerations to enable the better performance of the equality duty. The results of EQIA should help with this. Any equality related award criteria and / or contract conditions should be included within the specification, and appropriate weightings applied.
Although the specific duty of the Equality Act 2010 outlined above applies to contracts or framework agreements covered by the Public Contracts (Scotland) Regulations 2015, i.e. procurements with a value above the EU thresholds, this should not prevent a buyer from including equality related award criteria and / or contract conditions in lower value contracts where it is relevant and proportionate to do so.
For example, the specification could describe the focus of the contracting authority’s equality and diversity priorities and how it promotes these within its own organisation, and through its contracts. This would alert bidders to the authority’s commitment to promoting equality and diversity.
The specification could also outline the requirement for information on:
- equality performance and compliance with the Equality Act 2010
- equal employment opportunities and compliance with employment law
- whether supporting evidence such as copies of policies and procedures will be required
- equality management systems to track and report on performance
- continuous improvement requirements post award including open book audits
- disclosure Scotland Protecting Vulnerable Groups (PVG) disclosures
- proposals for on-going delivery of equality and diversity systems and training to the extent relevant to the contract
- proposals for quality assurance of the service to be delivered under the contract
In a construction contract it might be appropriate to include a condition in the contract that the contractor or sub-contractor must be able to demonstrate that as an employer it is actively taking steps to encourage women to take up its apprenticeships. For example, in trades where women are under-represented: plumbing, carpentry, brick-laying, plastering and decorating, etc.