The Public Services (Social Value) Act 2012 –
Social Value and Equalities in Procurement
Equalities and Human Rights Commission
Gayle Monk
7th March 2013
What will we cover?
•
The core legislation on social value in procurement
•
What does the Social Value Act say?
•
The Equality Act 2010 and the public sector
equality duty
•
The interface between social value and equalities
•
Some practical considerations
Core Legislation
Procurement
•
Consolidated Directive (2004)
•
UK implementing Public Contracts Regulations 2006
Social Value
•
Public Services (Social Value) Act 2012
•
Updated Directive (2013)
Equality Act 2010
Local government legislation
•
Best Value statutory guidance – September 2011 for councils in England
Public Services (Social Value) Act 2012
The Act:
• covers public service contracts (including service contracts
with a works or goods element) and frameworks for such
contracts
•
applies itself to the pre-procurement stage of the
commissioning process
•
requires that contracting authorities should consider how
to improve the economic, social and environmental wellbeing of the area served by them through procurement and
how to undertake the process of procurement with a view
to securing that improvement
•
consider whether to undertake any consultation as to these
matters
•
provides that genuinely urgent situations do not require this
exercise
Section 1 Contracts of
relevant
authorities
Public Services (Social Value) Act
Inserts a new section 17(11) into the Local
Government Act 1988 (exclusion of noncommercial considerations in the case of local
and other public authority contracts):
“(11) This section does not prevent a public authority
to which it applies from exercising any function
regulated by this section with reference to a noncommercial matter to the extent that the authority
considers it necessary or expedient to do so to enable
or facilitate compliance with duty imposed on it by
section 1 of the Public Services (Social Value) Act 2011.”
Section 2 – Local
Authority
contracts
Non-commercial considerations
• employment terms and conditions, training and
opportunities for workforces
• whether sub-contractor terms are for self-employed
persons only
• involvement in industrial disputes
• country of origin of supplies/location of business
• political, industrial or sectarian affiliations
• financial support for an organisation the authority
withholds support from
• Building Regulations approvals
Local authorities
are not usually
permitted to take
non-commercial
considerations
into account in
their contracts,
but can do so if
needed to
comply with the
Social Value duty
In force…
Now!
31st January 2013
It’s time to start planning:
• updates to policies
• any new policies needed
• this year’s procurement exercises: what’s on the cards?
Guidance
Cabinet Office Procurement Policy Note:
•
“When considering how a procurement process might improve the
social, economic or environmental well being of a relevant area the
authority must only consider matters which are relevant to what is
proposed to be procured. The authority must also only consider those
matters to the extent to which it is proportionate, in all the
circumstances, to take those matters into account”
The Public Services (Social Value) Act 2012 – advice for commissioners and
procurers: Information Note 10/12 20th December 2012
https://update.cabinetoffice.gov.uk/resource-library/public-procurementnote-public-services-social-value-act-2012
Key points on social value
•
Policy is critical to social value being embedded in procurement
•
Early scoping so the subject matter of the contract is clear greatly reduces
bases for challenge
•
The use of sustainability criteria that go beyond quality accreditation must be
explained in the tender documentation
•
Provided that all evaluation criteria are properly disclosed to bidders, the use
of economic, social and environmental requirements is entirely acceptable
•
Don’t use specified labels - technical specifications used should instead
describe the underlying requirements
•
Therefore contract conditions and award criteria are best way forwards for
social requirements
•
Social requirements in contract specifications must be verifiable and tangible
and clearly within the within the scope of what is being paid for.
Including social and
economic
requirements in
procurement is
nothing new, but
had a renaissance
at the beginning of
the century when
new clarity
developed around
the ambit of the
EU procurement
rules, and the
relaxation of local
government rules
on non-commercial
considerations.
Equality Act 2010
Key provisions:
•
•
Section 1- Socio-economic duty (not in force)
Section 149 - Public sector equality duty
The Public Sector Equality Duty
A public body must, in the exercise of its
functions, have due regard to need to:
•
•
•
eliminate discrimination
advance equality of opportunity
foster good relationships
Applies to age, disability, gender reassignment,
pregnancy and maternity, race, religion or belief,
sex and sexual orientation.
Procurement and
commissioning
are ways in
which the public
body exercises
its functions
Some interfaces between Social Value and Equalities
•
Procurement can recognise and respond to the diverse
needs of communities
•
Allows contracting
treatment
•
Socio-economic
accessible
•
Open up opportunities to BMEs / SMEs, social enterprises
and social firms (sheltered workshops)
•
Also encourage supply chain partners to advance equality
and diversity
authorities
factors
can
promote
make
quality
contracts
of
more
Social Value and Equalities in Context
Strong drive for increased efficiency and real savings
 more shared services – makes sense but may lead to more
standardised services
 taking equalities into account is part of understanding the public
body’s communities and/or service users, and focusing resources
where they are most needed – but often seen as marginal rather than
VFM
 need to assess potential differential impact of initiatives
More procurement likely?
 could ensure equalities implications and objectives taken into account
 but only if good understanding of ‘relevance’
 and positive leadership from key stakeholders
Social Value and Equalities in Practice
• Need corporate approach and strategy



which spells out how procurement will be used to drive delivery
of equalities objectives
but crucially how addressing equalities can contribute to your
wider objectives – and help deliver community/social/economic
benefits
and which sets framework for supplier diversity policy
• then build equality considerations into each stage of
process
Social Value and Equalities in Practice
• Show you take equalities seriously by:

what you say (contract documents)

how you do it (contract size, etc)

what you do (award criteria, contract monitoring & management etc)
• put the organisation’s commitment to equalities at the start,
quoting overall strategy and objectives, and your equalities
objectives
• use prequalification to establish suppliers’ compliance, but
take their size into account and offer/signpost to support
• monitor, but more importantly, work with providers to
improve equalities performance during life of contract
How to build equalities into procurement –
6 key points
1. Supplier engagement and community testing –
what is achievable / realistic / affordable?
2. Scoping project and drafting specifications to
identify relevant and appropriate equality and
other non-commercial considerations.
3. Contract terms: capture key issues in the
contract terms and conditions. There will be a
cost attached – is it affordable?
How to build equalities into procurement –
6 key points
4/5.Do we have the right to reject applicants at
selection stage? At tender stage, can we include
socio-economic issues in assessment of most
economically advantageous tender? Yes – But
selection and evaluation (award) criteria must be:
•
•
•
•
in accordance with the Regulations
non-discriminatory
proportionate and
linked to subject matter of the contract
6. Living the contract - what obligations?
What can we do to comply?
•
Develop a sustainable commissioning strategy –
reflect priorities, local needs and the need to
comply with the Public Sector Equality Duty
•
Soft market testing and community consultation
•
Supply chain mapping
•
Develop policy for social value commissioning in
procurement
If you have any queries or comments in
social value or equalities in procurement
please contact Gayle Monk of Anthony
Collins Solicitors LLP on 0121 212 7472
or gayle.monk@anthonycollins.com