In the face of diversity: public procurement to promote social objectives

Socially responsible public procurement allows contracting authorities to factor in social considerations when they purchase goods or services with a view to promoting and achieving social objectives. The possibility of taking social considerations into account in public procurement was initially recognised by the Court of Justice of the European Union (CJEU) in 19883 and later by the 2004 public procurement directives. Such considerations may include, for example, social inclusion including integration of workers with disabilities, accessibility, design for all, compliance with social and labour rights, promotion of migrant-owned businesses, equal opportunities and non-discrimination. Yet many voices are calling for a greater involvement of both the public and private sectors in promoting equal opportunities. According to the European Commission, only 17 countries out of the EU 27 and EEA countries refer to social objectives during public procurement, mostly with regard to working conditions, and merely 45% of all contracting authorities include social considerations in the process of awarding public contracts.

Earlier in 2013, the UK Equality and Human Rights Commission published a handbook on how to better mainstream equality considerations in public procurement, including training modules and case studies.

Responsible public procurement appears as a way to achieve a comprehensive approach to equality and diversity as it allows public authorities to contribute to high social standards in business and to send a strong message that partners and economic operators cannot ignore. It forces them to achieve social objectives if they want to be competitive and, ultimately, business-driven mentalities will be shaped in such a way that social considerations are systematically endorsed. Finally, discussions around the use of public procurement as a positive measure to enhance equality and diversity are particularly interesting in the light of the proposal for a new directive on public procurement10 and the EU Accessibility Act11 which are currently in preparation.

This article aims to provide an overview of what is permitted under EU law and presents some good practice from Member States to reflect the huge potential that public procurement offers in promoting equality. Promising measures, such as the requirement for a diversity label or the additional award criteria clause, are also examined. Finally, mention will be made of accessibility and reserved contracts.