JOURNAL OF PUBLIC PROCUREMENT, VOLUME 10, ISSUE 4, 541-563
WINTER 2010
INTEGRATING GENDER EQUALITY IN PUBLIC PROCUREMENT:
THE SPANISH CASE
Teresa Medina-Arnáiz*
ABSTRACT. Public procurement, as well as constituting a means of providing
goods and services, also represents a powerful legal instrument available to
contracting authorities to ensure compliance with secondary or noncommercial goals. Among these secondary objectives, equality between
women and men may be highlighted. The possibility of integrating social
concerns into public procurement is envisaged in the Community Directives
on public procurement and has also been incorporated in the legal systems
of various Member States. This paper studies the inclusion of social clauses
on gender equality that appear in the different phases of a procurement
procedure in the Spanish Public Procurement Law (Law 30/2007, 30th
October, on Public Sector Contracts).
INTRODUCTION
Equality between women and men is a fundamental right and a
common principle of the European Union (EU). Furthermore, gender
equality is essential for growth and poverty reduction, and is
recognized as a necessary condition for the achievement of the EU
objectives of growth, full employment and social cohesion. The EU
has made a major contribution to the advancement of women and
the improvement of women’s and men’s lives through a substantial
body of equal treatment legislation and the explicit integration of the
gender dimension into EU policies and activities.
In Spain - one of the 27 Member States of the EU - article 14 of
the Constitution states that all Spanish citizens are equal before the
---------------------------------------* Teresa Medina Arnáiz, Ph.D., is a Lecturer in Law, Faculty of Law,
University of Burgos (Spain). Her research interests are in the field of public
procurement.
Copyright © 2010 by PrAcademics Press
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law and may not in any way be discriminated against on the grounds
of gender, among other reasons. Similarly, article 9.2 declares that it
is the responsibility of the public authorities to promote conditions to
ensure that the freedom and equality of individuals and the groups to
which they belong are real and effective, to remove the obstacles
preventing or hindering their full enjoyment, and to facilitate the
participation of all citizens in political, economic, cultural and social
life.
Taking this formal recognition of the principle of equality and nondiscrimination on the grounds of a person’s gender as a starting
point, the Public Administration has established and undertaken all
manner of measures aimed at ensuring equal opportunities for both
sexes. Nevertheless, whilst it is true that in recent years there has
been a significant increase in the number of women in the
employment market as well as important legal advances in the fight
for gender equality, experience demonstrates the difficulties that
women face, in both a Spanish and a European context, in ensuring
real and effective parity in the various facets of life and, especially, in
the employment market where the discrepancy between male and
female income levels remains wide.
The causes of this inequality are both historical and cultural, as
sexist stereotypes have traditionally marked the roles of women and
men in society and have an influence on the gender distribution of
paid and unpaid work. The persistence of these gender gaps between
men and women confirm the importance of eliminating barriers to the
full participation of women in the labour market and of promoting
policies on the part of public authorities that stimulate the
participation of women in the employment market. A number of these
measures are linked to public procurement.
The reasons why public procurement may be a factor in
advancing the goal of equality would appear to be evident: first
because it is not coherent to seek gender equality in working
relations through Corporate Social Responsibility and not all public
authorities may be said to lead by example (McCrudden, 2007b).
Second, although no less importantly, the sector represents a
considerable percentage of a country’s Gross Domestic Product
(GDP). This percentage, which fluctuates at a global level between
10% and 30% between countries, stands at a mean value of 14.9% in
the case of Spain.
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This paper seeks to analyse the possibilities that the Law on
Public Sector Contracts in Spain offers to contracting authorities, in
order to ensure compliance with gender equality legislation through
the different procedural phases for the award of public contract. This
paper has been prepared with reference to Spanish legislation,
Directive 2004/18/EC, and the decisions of the Court of Justice of
the European Union (ECJ). Nevertheless, the different judicial reports
issued by the various Public Procurement Consultative Boards [Juntas
Consultivas de Contratación Administrativa] prior to the Public Sector
Contracts Law in Spain are also of special interest in this area.
THE LEGAL FRAMEWORK
The most important landmark in the pursuit of equality in Spain
has been the passing of Organic Law 3/2007 of 22nd March, on
Effective Equality for Women and Men. The text of the
aforementioned Law states that “equal treatment and equal
opportunities between women and men is a guiding principle of the
legal system and, as such, constitutes an integral part of Spanish law
and one which will be strictly observed” (article 4) [author’s
translation]. Similarly, the public authorities are required to adopt
specific measures in favour of women “in order to correct patent
inequality” (article 11), and the Public Administration is compelled to
integrate this principle into all of its activities (gender mainstreaming).
From these regulations, it may be understood that the Spanish
Public Administration cannot remain indifferent to this principle. Thus,
as well as guaranteeing equal opportunities in terms of employment
and labour relations by virtue of the powers ascribed to them in the
regulations, they should also seek to ensure gender equality through
their various public policies and actions.
For this reason the contracting authorities should not detract
from the full weight of this principle when contracting, because
despite the fact that the main objective of public procurement is that
they acquire their goods and services under the best possible terms
and condition, their purchases may also lead to the achievement of
other secondary objectives such as, for example, the elimination of
inequality between women and men in the labour market or the fight
against gender discrimination in general (Tobler, 2000; Nielsen,
2004, 2005; McCrudden, 2007a, Medina Arnáiz, 2009, 2010b).
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Nevertheless, the use of public procurement as an instrument to
achieve other ends in the public sector will depend on the provisions
of the legal order and the political intention in incorporating this
objective into public purchasing. For this reason, both the limitations
imposed by the legislation and the lack of a political will somewhat
limit the scope of any social aspect in public procurement. The
limitations imposed by existing public procurement legislation justify
the differences that have long existed in this area between the U.S.A.
and Europe. Since the 1960s, the U.S.A. has shown itself to be
especially inclined to use contracting as an instrument of social
policy; for example, by using public procurement as one of the
measures to prevent unequal treatment of women and men with
regard to employment (Hartnell, 2007). In the case of European
countries, these limits have been imposed because Directives on
public procurement prior to 2004 did not expressly contemplate the
possibility of pursuing social objectives in the award of public contract
(Arrowsmith, 2005).
Nonetheless, the current European Directives on public
procurement take full account of its potential as a political and social
instrument, bearing in mind the large amount of resources tied up in
the supply of goods, the completion of public works and the provision
of services by the public sector. They specifically contemplate the
possibility of integrating social considerations into the various phases
of a public contract award procedure. Thus, Directives 2004/17/EC
and 2004/18/EC encourage a wider application of responsible public
procurement on the part of the contracting entities and the
contracting authorities, and provide the appropriate legal framework
so that the different Member States can follow model mechanisms to
incorporate social considerations into their contractual norms, on a
voluntary basis (social purchasing).
In the case of Spain, Law 30/2007, of 30th October, on Public
Sector Contracts (LCSP) transposed Directive 2004/18/EC, thereby
incorporating into Spanish contractual legislation the community
proposals to promote the achievement of social objectives through
public contracting (Moreno Molina, 2008). The LCSP, as stated in its
Preamble, allows considerations of a social nature to be introduced
into a public contract, defining them as special conditions for the
performance of the contract or as criteria to assess the offers, in
INTEGRATING GENDER EQUALITY IN PUBLIC PROCUREMENT: THE SPANISH CASE
545
anticipation of a structure that provides room for contractual models
to adapt to new ethical and social requirements.
Despite this declaration in favour of the inclusion of social
aspects in public contract awards, objections to this idea have been
voiced, which claim that contractual regulations are hardly the most
appropriate vehicle through which to impose obligations on tenderers
in the field of gender equality in the labour market. Examples of this
division of opinion can be found in the Report on the Effective
Equality for Women and Men Bill of the General Council of the
Judiciary [Consejo General del Poder Judicial], which is the basis for
an amendment to the Act presented before Congress of Deputies by
the Popular Party - Spain’s centre-right Parliamentary Group - which
argues that this is an added stimulus which seeks to ensure the
effectiveness of a further measure with a positive action, requiring
considerable caution over its inclusion in procurement clauses and
conditions in order not to provoke a wholly undesired effect: that of
benefitting a candidate who offers less favourable conditions or fewer
guarantees in terms of the public interest [author’s translation].
GENDER EQUALITY AS A SOCIAL CLAUSE IN PUBLIC PROCUREMENT
The Road That Led to EU Directive 2004/18/EC and the Spanish Law
on Public Sector Contracts
The clear commitment to incorporate social aspects into the
regulations governing the awarding of public contracts within the
European legislature came in 2001 with the publication of
Commission interpretative communication on the Community law
applicable to public procurement and the possibilities for integrating
environmental considerations into public procurement and the
possibility of integrating social aspects in these contracts [COM
(2001) 566 final]. One of the main achievements of this
Communication is to specify exactly what the expression “social
aspects” shall be understood to mean, outlining (among other things)
that the phrase may refer to measures which guarantee respect for
fundamental rights and the principles of equal treatment and nondiscrimination (for example, between women and men).
At the time this Communication was approved, EU Directives
concerning public procurement were undergoing a process of
modification. Once these reforms were underway, legislative change
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was not far behind, and since 2004 the EU has had a regulatory
framework in place which governs the procedures for the award of
public works contracts, public supply contracts and public service
contracts (Directive 2004/18/EC). The deadline for transposing the
aforementioned regulations into the legislation of each Member State
expired on the 31st of January 2006 (Trybus and Medina, 2007,
2009; Arrowsmith, 2008).
Directive 2004/18/EC has as its immediate objective the
coordination of procedures for the award of public works, the supply
of goods and the provision of services which exceed a certain amount
in order to favour the development of effective competition (Recital
2nd in the Preamble to Directive 2004/18/EC); nonetheless, other
objectives might be concurrently achieved. In this sense one can talk
about principle and secondary public procurement objectives to
distinguish between the different levels of adaption to the needs that
the contract is intended to cover. On the majority of occasions, the
social objectives will be considered as objectives of a secondary
nature (Thai, 2001; Schooner, 2002; Arrowsmith, 2004; Arnould,
2004). Among these secondary objectives, special mention should be
made of the promotion of gender equality within the labour market.
As a demonstration of the link between these policies, article 33
of the aforementioned Organic Law 3/2007, on Effective Equality for
Women and Men, declares that the public administration, depending
on the competences of each department, through its contractual
procedures and in relation to the undertaking of the awarded
contracts, may seek to establish special conditions with a view to
fostering equality between men and women in the labour market, in
line with that set out in legislation governing public sector contracts
[author’s translation].
Article 102 of the Public Sector Contract Law (henceforth LCSP)
meanwhile refers to the special conditions which might apply to the
execution of the contract, stating that contracting authorities might
seek to establish special conditions regarding the execution of a
contract wherever this is compatible with EU law and are specified in
the terms and conditions of the tender or the clauses of the contract.
These special conditions may specifically refer to considerations … of
a social nature, with a view to encouraging the employment of people
with particular difficulties in terms of their entering the labour market
INTEGRATING GENDER EQUALITY IN PUBLIC PROCUREMENT: THE SPANISH CASE
547
and eliminating the inequalities which exist between women and men
in that market [author’s translation].
As far as the objective of eliminating gender discrimination in the
labour market, the LCSP may contribute to compliance with equality
regulations via a number of different measures. These measures link
the contractor’s selection phase to the phase in which the public
contract is executed. The following sections describe the
characteristics of gender equality as social clauses in each of these
contractual phases.
THE GENDER PERSPECTIVE AT THE STAGE OF SELECTION OF CANDIDATES
OR TENDERERS
Exclusion of Candidates or Tenderers for Non-Compliance with
Equality Regulations (Criteria for the Rejection of Economic
Operators)
The LCSP sets out the conditions for participation in public
procedures for the award of contracts in the general section on
“Aptitude to bid for public sector contracts”, indicating in article 43.1
that “bidding for public sector contracts is restricted to Spanish or
foreign individuals or entities with capacity to act which are not be
excluded from participation in a public contract and who can accredit
their economic and financial standing and technical and/or
professional ability or, in such case where required by law, are duly
qualified and registered” [author’s translation].
These criteria govern the positive requirements which tenderers
and candidates need to meet, as well as empower the contracting
authorities to exclude tenderers that might be incapable of fully
executing the contract in question. In other words, they determine
who can and who cannot be a contractor based on the personal
situations of the candidates or tenderers, their economic and
financial standing, their technical knowledge, experience and even
their reliability or moral capabilities, in the terminology used by
Spain’s Supreme Court. All of these establish the conditions for the
exclusion of certain individuals and entities from taking part in a
public tendering procedure.
In general terms, exclusion is a disqualification that restricts an
individual or a legal person from participating in certain activities.
When applied to the field of public procurement, exclusion may be
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understood as a limitation of the right to participate freely in public
procurement procedures, in such a way that they may be defined as
administrative remedies applied by contracting authorities to
disqualify contractors from obtaining government contracts
(Schooner, 2004; Williams, 2006; Medina, 2008). These exclusions
have been defined by Spanish jurisprudence as measures to
guarantee the public interest, as negative reports that lead to a ban
on tendering, which are not by nature sanctions even though they
limit a person’s rights, which constitute matters that are the reserve
of the law and that are also applicable to subcontractors (article
210.5 LCSP). Under the heading “contract exclusions”, article 49.1
LCSP lists a series of circumstances which when applied to a tenderer
or a candidate mean it is impossible for them to enter into any
contract whatsoever with the public sector, regardless, in principle, of
the legal nature of the tender; in other words, whether these tenders
are administrative or private.
In relation to infringements of gender equality, the first section of
the aforementioned article 49 outlines contract exclusions covering
the whole of the public sector as a result of actions of a various
nature which may be grouped together in two categories. The first of
these covers those exclusions which arise from the commission of
certain types of offenses (penal causes) and the second refers to
those exclusions which arise from the breach of certain legal
obligations (administrative causes). Thus, persons to whom one or
more of the following circumstances are applicable may not contract
with public sector entities and organisations (contracting authorities):
- A conviction by a judgement with the force of res judicata for
offences against workers’ rights (article 49.1.a LCSP).
- An irrevocable fine for grave professional misconduct or in
matters relating to employment integration and equal
opportunities and non-discrimination for very serious infractions
of social matters, including breaches concerning the prevention
of workplace accidents, in compliance with that set out in the
Reformed Text of the Law on infractions and sanctions in the
Social Order, approved by Decree 5/2000 (Article 49.1.c of the
LCSP).
Nevertheless, this classification by categories is not intended as
an obstacle to finding a common objective shared by all, namely
INTEGRATING GENDER EQUALITY IN PUBLIC PROCUREMENT: THE SPANISH CASE
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preventing contracting authorities from contracting with persons that
are held to be untrustworthy on account of their past behaviour. The
contracting authority is thus able to protect itself from economically
unreliable operators, and at the same time these categories
discourage any breach of existing legislation.
All conduct that violates the principle of equal treatment and
opportunities for men and women in matters of employment is
included among the behaviour that leads to an exclusion from
participation in a tendering procedure due to an infraction of gender
equality regulations. Article 45.2 of Directive 2004/18/EC outlines
the possibility of excluding those tenderers and candidates from
public contracting who have committed a serious professional
infraction or who have been found guilty of offenses relating to
professional ethics and morality. These points are reinforced in
Recital 43 of the Preamble to Directive 2004/18/EC, which
contemplates inter allia, an exclusion on contracting where the
authority has knowledge of a final judgment for offences under
national provisions that relate to the environment, and the equal
treatment of workers due to “professional conduct” or “grave
misconduct” on the part of an economic operator.
This presupposes that the procurement exclusion would be
applicable to all conduct which violates the rights and opportunities
of women workers or any which results in workplace discrimination
and harassment, by virtue of article 314 of the Penal Code, and SubSection 2 of article 16 of Decree 5/2000. A very serious infraction is
also considered to be as outlined in Section 17, article 8 of the
aforementioned Decree: not elaborating or implementing an equality
plan, or doing so whilst manifestly failing to comply with the stipulated
terms where there is a legal obligation to such end.
With regard to the way in which a tenderer or candidate is
accredited not to have incurred any of these prohibitions, the LCSP
establishes that this shall be carried out through judicial testimony or
administrative certificate, depending on the case. When the
document in question cannot be issued by the relevant authority, it
can be substituted by a formal declaration made before a competent
judicial or administrative authority, a notary or a competent
professional or trade body (article 62.1 LCSP).
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In the LCSP regulations, the exclusions for the reasons stipulated
in points (a) and (c) of article 49.1, despite being obligatory for all
public sector contracting authorities, do not require the introduction
into the contract of an effective guarantee of compliance with
equality regulations on the part of tenderers and candidates. In fact,
the LCSP does not effectively consider those individuals and entities
that have breached gender equality to be excluded from the
contracting process. Instead it only contemplates having been found
guilty of an offense or sanctioned without further recourse to appeal
for a serious or very serious infraction as grounds for exclusion, so
that the prerequisite for such prohibitions are in effect the judgment
or decision to penalize. The disqualification cannot therefore be
deemed to be effective until the point where the sentence or ruling is
final.
Thus, the first obstacle to overcome in order to consider these
contracting prohibitions as clauses which promote equality between
women and men is not related to the time spent waiting for a ruling or
sentence to become final, whose raison d’être is the guarantee it
offers to the tenderer or candidate, but in the ways that these
exclusions are perceived, given that their effectiveness diminishes
before such a concrete aspect as lack of information regarding
sentences and administrative rulings which cover the aforementioned
penalties and sanctions. In this context, the effectiveness of these
prohibitions as a deterrent to failing to comply with gender equality
regulations is in fact very limited.
THE INCORPORATION OF A GENDER PERSPECTIVE IN THE CONTRACT
AWARD PHASE
The Court of Justice of the European Union (ECJ) has
differentiated, on various occasions, between “criteria for qualitative
selection” and “award criteria”, making it clear that the former refers
to the assessment of the tenderers and the candidates’ suitability,
whereas the award criteria exist in order to select the offer that best
meets the needs of the contracting authority. Thus, qualitative
selection criteria center on the standing and abilities of the future
tenderer, as opposed to the contract award criteria that refer to the
quality of the works, supplies or services that the tenderer offers or
seeks to undertake (Treumer, 2009). In the context of a public
tender, assessment of the suitability of tenderers is quite separate
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551
from the assessment phase of the tender offers. It is a question of
separate operations that are governed by different regulations in
which, once the suitability of the tenderer to undertake the contract
has been decided, the award must be decided on the basis of the
most economically advantageous offer.
As far as award criteria are concerned, the LCSP refers only to the
concept of the most economically advantageous tender to cover the
criteria which serve as a basis for the award of a contract, either as
the sole criterion or as one of a number of factors of varying content,
allowing the contracting authority to assess a range of aspects
related to the tender, without focusing exclusively on the price. In
order to determine the most economically advantageous tender,
article 134.1 of the LCSP outlines in basic terms that the focus
should be on criteria directly linked to the object of the contract, such
as, for example “quality, price, the formula used to review
remuneration to be generated by use of the work or provision of the
service in question, the term for completion or delivery of the works,
the cost of use, environmental characteristics, profitability, technical
value, aesthetic or functional characteristics, the availability and cost
of spare parts, maintenance, technical support, post-sales service
and other similar factors” [author’s translation].
As this article makes plain, and specifically through the use of
expressions like “such as” and “other similar”, the criteria which can
be used as yardsticks for the award of the most economically
advantageous tender are not specified in their entirety, nor is there a
numerus clausus; they are instead chosen as examples that do not
list all the admissible circumstances that may be assessed by the
contracting authority.
With regard to the consideration of those aspects related to
gender perspectives during the contractual phase, the question may
be limited to determining whether or not a criterion of a general
nature, as is the case here, is suitable for identifying the most
economically advantageous tender, as any inaccuracy in the concept
leads to serious doubts as to whether or not the contracting authority
is capable of establishing award criteria aimed at ensuring
advantages which are not susceptible to direct economic
assessment. These doubts have been the basis for one of the main
legal obstacles and criticisms which have been voiced in a number of
forums relating to the consideration of social elements as award
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criteria. Such criticism, however, has grown quieter as the ECJ
recognised that the inclusion of a general interest criterion within the
wider criteria of public sector contract awards was admissible.
Similarly, the incorporation of social aspects in the award of a
public contract have had their effect on the jurisprudence of the ECJ
and in some articles of Directive 2004/18/EC where they establish
the possibility of setting criteria that meet social requirements,
provided that these criteria are related to the purpose of the contract,
and do not signify unlimited freedom of choice for the contracting
authority. The award of contracts is subject to respect of the
principles of the Treaty and in particular to the principle of freedom of
movement of goods, the principle of freedom of establishment and
the principle of freedom to provide services and to the principles
deriving therefrom, such as the principle of equal treatment, the
principle of non-discrimination, the principle of mutual recognition,
the principle of proportionality and the principle of transparency.
Insofar as these conditions are met – which is to say, provided
they are applied in a non – discriminatory manner, are expressly
indicated in the tender advertisement (article 134.5 of the LCSP), are
present in the specifications or other contractual documents, and
have a direct relationship with the object of the contract and the
criteria are proportional and suitable to ensure the achievement of
the contractual purpose, then it will be permissible and possible for a
contracting authority to use criteria relating to gender equality as
criteria for the award of public sector contracts.
COMPLIANCE WITH REGULATIONS CONCERNING GENDER EQUALITY IN THE
EXECUTION PHASE OF A PUBLIC CONTRACT
Even where non-compliance with applicable regulations does not
signify an ipso facto exclusion from procurement, there are other
routes by which clauses can be established which oblige contractors
to comply with the regulation in question. These other routes are
available during the execution phase of the contract; in other words
where the tender has been awarded.
Article 102 of the LCSP thus offers contracting authorities the
chance to impose certain contractual conditions on the successful
bidder. These special execution conditions - which represent a
significant step forward with respect to the existing legislation - may
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553
expressly refer to social-type considerations with a view to eliminating
gender inequalities in the labour market. Contracting authorities
should therefore include regulations within the particular
administrative clauses which require the contractor to comply with
the obligation to draw up and implement an equality plan, as since
the aforementioned Effective Equality for Women and Men Act came
into force, governing effective gender equality, drafting and
implementing an equality plan is now an obligation for all companies
employing over two hundred and fifty workers (article 45.2 Organic
Law). This clause deserves a positive assessment assuming that the
breach of such regulations is deemed to be grounds for early
termination, either as the regulation in question is considered to be
an essential contractual obligation (article 206.g) or due to the fact
that this is expressly stated in the contract (article 206.h).
Anyway, the inclusion of these clauses in contracts by the various
public authorities and departments would honour the International
Labour Organisation Convention No. 94 concerning labour clauses in
public contracts (Medina, 2009).
EXAMPLES OF THE INCLUSION OF THE GENDER PERSPECTIVE IN THE
CONTRACTOR SELECTION PHASE
Award Criteria
Examples of the incorporation of a gender perspective in the
contract award phase can be seen in some of the tender’s
documents which govern a number of service contracts awarded by
the Women’s Institute - Body governed by public law attached to the
Spanish Ministry of Equality-, but also in certain public contracts
awarded by other contracting authorities.
Public Works Contract
Paving and asphalting works [Common procurement vocabulary
(CPV) 45233222]. The contract for resurfacing the EX-320 road from
Zafra to Barcarrota, along La Lapa - Salvatierra de los Barros is a
public works contract that was the object of a judgment on the 16th of
June 2009. The High Court of Justice of Extremadura Administrative
Community upheld the inclusion of “equality” in the award criteria,
which entail a maximum of 5 out of a possible 100 points, for the
tenderer with the highest percentage of full-time permanent women
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staff, with the award of 5 points to the highest percentage and 0
points to the lowest. Intermediate levels are given a proportional
number of points. In this specific case, the High Court of Justice of
Extremadura considered that this award criterion complied with legal
regulations concerning gender equality, which allow for the
application of positive discrimination measures aimed at encouraging
women to enter the employment market (Medina, 2010a).
Public Service Contracts
Among the examples of general public services announced by the
Women’s Institute in which equality policies are valued positively as
criteria when awarding the contract, the following general public
services deserve special mention:
a) In the specifications for the design, coordination, setting up and
taking down of the commemorative exhibition to mark the 25th
Anniversary of the Women’s Institute, a maximum of 1 point (out
of a total of 10 points) was awarded for drawing up plans or
adopting gender equality measures within the organisation of
the company, which has to be accredited through a collective
agreement, pact or any other kind of agreement or recognition
of the conditions the company has in place for its workers.
b) In the specifications which cover the procurement of services
regarding the technical organisation of the Congress entitled
“Feminism’s Agenda in the 21st century - a time for women, a
time for freedom” the award criteria included 1 point (out of a
total of 10 points) for drawing up plans or adopting gender
equality measures within the organisation of the company. In
order to accredit this section, the original collective agreement,
pact or any other kind of agreement or recognition of the
conditions the company has in place for its workers or copies
thereof should be attached.
c) In the specifications which cover the procurement of services
regarding the undertaking of a project focusing on balancing
work and family life in a local setting, a maximum of 1 point was
awarded for measures which promote the balancing of work and
family life within the company, accredited through a document
or a company agreement outlining the adopted measures” with
an additional point awarded for “having drawn up plans or
INTEGRATING GENDER EQUALITY IN PUBLIC PROCUREMENT: THE SPANISH CASE
555
adopted measures aimed at ensuring gender equality within the
organisation of the company.
Additional Award Criterion
The Sixth Additional Provision of the LCSP covers another of the
possible ways of incorporating social clauses in public contracts,
which is to consider them as additional tiebreaker criteria. For this
reason, in other examples the promotion of gender equality is
considered to be an additional award criterion. Such preference
criteria are, however, of limited application, as apart from being
discretionary for the contracting authority, their application is
dependent on the bids made by tenderers being given an equal
weighting in the selection procedure when assessing the criteria that
are used to determine the most economically advantageous offer;
which is to say, referring either to the sole criterion of price or to
various criteria. Despite their reduced effectiveness, their value as a
social clause is highlighted by the preference given in the award of
the public contract to those firms which demonstrate greater
commitment towards the principle of equality.
a) In the specifications which govern the procuring of services
aimed at ensuring media coverage for awareness-raising
campaigns against gender violence in 2010 (CPV 79341400
Advertising campaign services) it is specifically stated that in the
event of parity between two or more tenderers, in terms of the
objective criteria which form the basis for selection, preference
will be given to the bid presented by the company which, on
demonstrating its technical solvency, … promotes equal
opportunities between men and women in the undertaking, the
latter in relation to the contents of article 34.2 of the Organic
Law 3/2007, of 22 March, for the Effective Equality of Women
and Men (tiebreaker criteria) [author’s translation].
b) In the specifications covering the tender for the equal
opportunities consultancy services (CPV 98200000) it expressly
states in the section relating to contract award criteria that in
the event of parity between two or more tenderers, in terms of
the objective criteria which form the basis for selection,
preference will be given to the bid presented by the company
which, on demonstrating its technical solvency, promotes equal
opportunities between men and women in the labour market.
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c) In the specifications covering the tender for the ongoing
technical assessment to the network of equal opportunities
policies between women and men for the real and effective
application of gender mainstreaming in projects funded through
Structural Funds (FEDER and FSE) and the Cohesion Fund
2007-2013 (CPV 98200000) it is indicated that both in the
case of equality of conditions, and in the case of scores
awarded for having contracted the same percentage of workers
with disabilities, preference will be given to the proposal
presented by that firm or entity which, at the time of accrediting
its technical or professional solvency, includes measures that
aim to promote effective equality between women and men in
the labour market.
EXAMPLES OF THE INCLUSION OF THE GENDER PERSPECTIVE AS A SPECIAL
CONDITION RELATING TO THE PERFORMANCE OF A CONTRACT
In Spanish contractual legislation, the specification of the
different conditions for performance of contract is not exhaustive and
it therefore leaves the contracting authorities with the choice over the
social aspects that it will use as conditions for the performance of the
contract in accordance with its own political objectives.
One example that perfectly illustrates the impact of the political
element on the preparation of the contractual obligations relates to
the general administrative terms and conditions for social aspects in
public contracting, approved by the Corporation of the City of Seville
on 24th May, 2007, which proposes access for women to
employment under conditions of equality in activity sectors where
their representation is imbalanced in relation to the representation of
men. Thus, the aforementioned general administrative terms and
conditions, state that all successful bidder companies that have an
imbalanced representation of women in their workforce will, during
the execution of the contract, have to create at least one new
employment contract for a woman or will have to transform at least
one temporary employment contract filled by a woman into a
permanent employment contract. An imbalanced workforce will be
understood to have a representation or presence of women below 40
per cent of its total.
INTEGRATING GENDER EQUALITY IN PUBLIC PROCUREMENT: THE SPANISH CASE
557
CONCLUSIONS
The principle of equal treatment between women and men, as
well as the express prohibition of any type of discrimination on the
grounds of gender can be seen as a guiding principle for legal
systems and as such, should be integrated and observed in all public
action (gender mainstreaming).
In Spain, public authorities are obliged to adopt measures in
order to reduce the effects of social inequality. This mandate comes
from the text of the Spanish Constitution which, in Articles 9.2 and
40, entrusts the aforesaid powers to “promote favourable conditions
for social and economic progress”, as well as instructions to adopt
the necessary measures in order “to remove the obstacles preventing
or hindering their full enjoyment, and to facilitate the participation of
all citizens in political, economic, cultural and social life.”
Public procurement, as well as constituting a means of providing
goods and services, is also a powerful legal instrument by which the
public administration and other bodies, organisations and entities
may comply with secondary non-commercial objectives. Among such
objectives are those which relate to compliance with gender equality
regulations.
Law 30/2007, of 30th October, on Public Sector Contracts
transposed Directive 2004/18/EC incorporating EU regulations
aimed at ensuring the achievement of social objectives through
public procurement into Spanish contractual legislation. The
aforementioned LCSP contributes to compliance with gender equality
through a range of measures, although it should be pointed out that
these measures are contemplated as facultative in the LCSP.
These measures are linked, (1) on the one hand, to the contractor
selection phase (criteria for the rejection of economic operators), (2)
on the other, they contemplate the contract award phase as an award
criteria and as an additional tiebreaker criterion, and finally (3) during
the execution phase of the public contract as a condition for
performance of contracts. Nevertheless, it is worth highlighting the
very limited effectiveness of these measures as a stimulus for the
observance of gender equality regulations, due to their optional
nature for contracting authorities and the practical difficulty of
making procurement prohibitions effective.
558
MEDINA-ARNÁIZ
NOTES
1. Article 2 of the consolidated version of the Treaty on European
Union states “The Union is founded on the values of respect for
human dignity, freedom, democracy, equality, the rule of law and
respect for human rights, including the rights of persons
belonging to minorities. These values are common to the Member
States in a society in which pluralism, non-discrimination,
tolerance, justice, solidarity and equality between women and
men prevail”. Article 8 of the consolidated version of the Treaty on
the Functioning of the European Union declares “In all its
activities, the Union shall aim to eliminate inequalities and to
promote equality, between men and women”. The consolidated
versions of the Treaty on European Union and of the Treaty on the
Functioning of the European Union as they will result from the
amendments introduced by the Treaty of Lisbon, signed on
13 December 2007 in Lisbon and which came into force on the 1
December 2009 (OJ 2010 C 83). See, Communication from the
European Commission A Strengthened Commitment to Equality
between Women and Men. A Women's Charter. COM (2010) 78
final/2, 19 April 2010.
2. The Commission’s 2010 Report on equality between women and
men in Europe states: “The female employment rate increased by
7.1 percentage points over the last decade and reached 59.1% in
2008, which is close to the Lisbon target (60% in 2010), though
this rate varies between Member States, from below 40% to
above 70%. The average gap between female and male
employment rates fell to 13.7 percentage points in 2008 from
18.2 points in 1998”. See, Equality between Women and Men 2010, COM (2009) 694 final, 18 December 2009, p. 4. In Spain,
female unemployment stands at 20.16% according to data from
the National Statistics Institute (INE) in its Economically Active
Population Survey for the first quarter of 2010 at
http://www.ine.es/en/daco/daco42/daco4211/epa0110_en.pdf
[Retrieved 14 June 2010].
3. The percentage of 14.9% was taken from European Commission
working document, Public Procurement Indicators 2008 at
http://ec.europa.eu/internal_market/publicprocurement/studies_en
.htm (Retreived on 14 June 2010). This percentage of GDP
estimates the amount of procurement for which calls for
INTEGRATING GENDER EQUALITY IN PUBLIC PROCUREMENT: THE SPANISH CASE
559
competition have been published in Tenders Electronic Daily
(TED). It is therefore an estimate based on those tenders that are
published by contracting authorities in conformity with their
obligations under EU legislation. According to the data presented
by the Association of Construction Companies of National Scope
in 2009, total public tendering by all public authorities in Spain
amounted to 39,643 million euros (data updated to December
2009).
4. Among these reports, special mention should be made of the
Valencia Regional Advisory Board in the Report 4/2002, of the 5th
of June 2002, regarding the Draft Gender Equality Act for the
Valencia Region; the Report issued by the Spanish Public
Procurement Consultative Board 44/2004, of the 12th of
November, concerning the possibility of including positive
discrimination clauses, and finally, the Recommendation of the
Catalonian Public Procurement Consultative Board 3/2005, of 7
June 2005, regarding the inclusion of clauses designed to
promote equal opportunities between women and men in the
Regional Administration’s contracts.
5. Official State Gazette (BOE 71/2007).
6. See
www.juecesdemocracia.escgpj/2006/abril/InformeCGPJ
AnteproyectoLeyIgualdad.pdf. [Retrieved 14 June 2010].
7. McCRUDDEN refers to use of government contracting as a tool of
social regulation with the issue of “linkage” (McCRUDDEN, 2004,
2007a, and 2009). ARROWSMITH refers to collateral and
horizontal policies (ARROWSMITH, 2008 and 2009). M. SYKES
talks about exogenous objectives to refer to the advancement of
social policies through public procurement (SYKES, 2007).
8. Recital 43 in the Preamble to Directive 2004/18/EC states that
non-observance of national provisions implementing the Council
Directives 2000/78/EC and 76/207/EEC concerning equal
treatment of workers, which has been the subject of a final
judgment or a decision having equivalent effect may be
considered an offence concerning the professional conduct of the
economic operator concerned or grave misconduct”. Directive
76/207/EEC has been formally repealed and replaced by
Directive 2006/54/EC of the European Parliament and of the
Council of 5 July 2006 on the implementation of the principle of
560
MEDINA-ARNÁIZ
equal opportunities and equal treatment of men and women in
matters of employment and occupation (recast) (OJ 2006 L 204,
p. 23).
9. GAT (Case C-315/01) [2003] E.C.R. I-6351, paragraphs 59 – 64.
The suitability of tenderers is to be checked by the authorities
awarding contracts in accordance with the criteria of economic
and financial standing and of technical capability (the qualitative
selection criteria). By contrast, the award of contracts is based on
the criteria set out, in the present case, in Article 34(1) of
Directive 2004/18, namely, the lowest price or the economically
most advantageous tender. See, Beentjes (Case C-31/87) [1988]
E.C.R. I-4635; Lianakis (Case C-532/06) [2008] E.C.R. I-251 and
Commission v Greece (Case C-199/07) [2009] not yet published.
10. SIAC Construction (Case C-19/00) [2001] E.C.R. I-7725 and
Concordia Bus Finland (Case C-513/99) [2002] E.C.R. I-7213.
11. Opinion of Advocate General Mischo delivered on 13 December
2001 in Concordia Bus Finland (Case C-513/99) [2002] E.C.R. I7213 “the notion that criteria which exist for the public benefit
may be included in the criteria for the award of a public contract
also seems to be one that is logical, indeed clearly logical. As
public authorities have by definition a duty to serve the public
interest, that interest must be able to guide them when they enter
into a public contract” (Paragraph 93).
12. Section 1.1 of the Council of Ministers Agreement of 4 March
2005 pledges to introduce criteria which favour the employment
of women by the bidder companies in the Public Administration
contract documents. This agreement was published as an
Appendix to Order PRE/525/2005 of 7 March 2005 (BOE
57/2006).
13. This public works contract was published in the Extremadura
Official Gazette of 17 January 2008 (File Nº OBR052008002).
14. This public service contract was published in Official State
Gazette (BOE 103/2008).
15. This public service contract was published in Official State
Gazette (BOE 234/2008).
INTEGRATING GENDER EQUALITY IN PUBLIC PROCUREMENT: THE SPANISH CASE
561
16. This public service contract was published in Supplement to the
OJS, 30/12/2009.
17. This public service contract was published in Supplement to the
OJS36, 20/02/2010 (2010/S 36-052472).
18. This public service contract was published in Supplement to the
OJS, 19 March 2010 (2010/S 55-082010).
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