Equality Act 2010 (Procurement Duties)

The Equality Act 2010 consolidated and replaced a series of earlier equality statutes in Great Britain, including the Race Relations Act, the Disability Discrimination Act, and the Sex Discrimination Act. In the procurement context, it is the public sector equality duty (PSED) established by section 149 of the Act that has the most direct relevance. The duty requires public authorities to have due regard to equality considerations in everything they do, including how they buy goods, services, and works.

What are the Equality Act 2010 procurement duties?

Section 149 of the Act places the public sector equality duty on all public authorities when exercising their functions. The duty requires them to have due regard to the need to:

Eliminate unlawful discrimination, harassment, and victimisation in relation to the nine protected characteristics (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation).

Advance equality of opportunity between people who share a protected characteristic and those who do not.

Foster good relations between people who share a protected characteristic and those who do not.

In procurement, this means that contracting authorities should think about equality impacts when they design contracts, set selection and award criteria, and manage contract performance. The duty does not prescribe exactly what a buyer must do, but it does require demonstrable consideration of equality issues proportionate to the nature and scale of the procurement.

Contracting authorities can lawfully include equality-related award criteria and contract conditions, provided they are linked to the subject matter of the contract, proportionate, and non-discriminatory in themselves. For example, a contract for training services might include an award criterion on the provider's approach to making training accessible to disabled learners. A cleaning contract might include a contract condition requiring the supplier to ensure that its equality policy is applied to all staff deployed on the contract. These are permissible under both the Equality Act 2010 and the Public Contracts Regulations 2015.

What is not permissible is using procurement to pursue equality objectives that are unrelated to the contract. A buyer cannot award extra marks to a supplier simply because of the demographic composition of its board, unless board diversity is genuinely linked to the quality of what is being procured.

The Act also prohibits contracting authorities from discriminating in the procurement process itself. Selection criteria that indirectly disadvantage suppliers from particular groups, without objective justification, may breach the PSED. For instance, language requirements that go beyond what is operationally necessary could disadvantage suppliers from certain backgrounds without serving a legitimate procurement purpose.

Scotland and Wales have additional equality obligations layered on top of the PSED through their devolved frameworks. The Social Partnership and Public Procurement (Wales) Act 2023 and the Procurement Reform (Scotland) Act 2014 both embed equality considerations more deeply into their respective procurement regimes.

Why it matters for bidders

Suppliers bidding for public contracts should expect to encounter equality-related requirements at several points. At the selection stage, buyers commonly ask suppliers to confirm they have an equality and diversity policy and, for larger contracts, to provide evidence of how it is implemented. At the award stage, equality or diversity considerations may form part of a broader social value criterion. During contract performance, buyers may require suppliers to report on workforce diversity or demonstrate compliance with their equality commitments.

Suppliers who have invested in genuine equality practices are better placed to respond credibly to these requirements. Suppliers who treat equality as a box-ticking exercise risk producing thin responses that score poorly against competitors with more substantive approaches.

Example

A national government agency procures an employment support programme aimed at helping long-term unemployed people into work. The evaluation includes an award criterion on accessibility and inclusion, worth 15% of the total score. Bidders are asked to describe how they will ensure the programme is accessible to people with disabilities, people from ethnic minority backgrounds, and people with low literacy levels. A provider who submits a detailed, costed accessibility plan with specific reasonable adjustments and community outreach methods scores significantly higher than one who reproduces generic equality policy text.

Frequently Asked Questions

Are private companies subject to the public sector equality duty?

No. The PSED applies to public authorities. However, when private companies deliver public contracts, the contracting authority's PSED extends to how it manages those contracts. Buyers can include equality obligations as contract conditions, making them contractually binding on the supplier.

Can a buyer refuse to award a contract to a supplier with a poor equality record?

Potentially yes, within limits. Discretionary exclusion grounds under the Public Contracts Regulations 2015 include grave professional misconduct. A documented history of serious discrimination could in principle constitute grounds for discretionary exclusion. The bar is high and a buyer would need strong evidence, but equality failings are not immune from procurement consequences.

Does the Equality Act 2010 apply in Northern Ireland?

Northern Ireland has a separate but parallel equality framework. The main instruments are the Sex Discrimination (Northern Ireland) Order 1976, the Race Relations (Northern Ireland) Order 1997, and the Disability Discrimination Act 1995 as it applies in Northern Ireland, alongside the Section 75 duties under the Northern Ireland Act 1998, which impose equality and good relations duties on public authorities. The practical procurement implications are similar to those arising from the PSED in Great Britain.