New guidance has been published by the Equality and Human Rights Commission to help commissioners and procurers in considering how to ensure compliance with their public sector equality duty (PESD) obligations at different stages of the procurement lifecycle.
The PESD, which is a continuing duty deriving from the Equality Act 2010, requires public authorities and any organisation carrying out a public function (including the private and voluntary sector) to have "due regard to" (i.e. consciously consider, including in their decisions) the need to eliminate unlawful discrimination, advance equality of opportunity and foster good relations.
The guide, and other resources on the EHRC website, identify and recommend that the PESD be factored in to procurement policies and procedures, business case planning and each subsequent stage of the procurement process. Whilst relevance and proportionality are the key guiding principles in deciding if, when and how equality should be taken account, it is extremely important that the duty is considered.
The recent case of R (on the application of RB) v Devon County Council and Devon Primary Care Trust  EWHC 3597 (Admin) highlights the important interaction between the PESD and procurement and the risks for commissioners and procurers who fail to take account of it in their procurement and decision making processes. The claimant, the mother of two children, brought judicial review proceedings alleging the Council and PCT had failed to properly consider the PESD when deciding to appoint Virgin Care as preferred bidder to provide integrated childrens health and care services. The Court agreed that the authorities had failed to discharge their PESD when deciding to appoint Virgin as preferred bidder. Luckily for the authorities (and Virgin) the Court did not quash the decisions and the contract with Virgin has now been put in place. The case nevertheless provides a salutary lesson for commissioners and procurers who, in similar circumstances, may not be as lucky next time.