1. A European Law Perspective, Based on Experiences in Germany
THE UNIVERSITY OF ROME TOR VERGATA 2nd GLOBAL PROCUREMENT CONFERENCE PUBLIC PROCUREMENT DAYS
Gender Procurement
A European Law Perspective, Based on Experiences in Germany
Rome, 5th July 2017

2. A European Law Perspective, Based on Experiences in Germany
Gender Procurement
A European Law Perspective, Based on Experiences in Germany
I. What is Gender Procurement About?
II. Practical Examples of Gender Procurement as Required / Permitted by German Law
III. Gender Procurement under the European Public Procurement Directives
Gender Procurement

3. I. What is Gender Procurement About?
Definition: “Gender procurement involves the introduction of gender equality requirements in public procure- ment, in order to use these as an instrument to advance gender equality.”
European Institute for Gender Equality – Glossary
Distinction between requirements which
directly promote gender equality and non-discrimination (e.g.: requiring a certain share of women among employees)
indirectly (or typically) promote these goals (e.g.: requiring measures for the balancing of family and work)
Gender Procurement

4.  Broad and functional understanding (“
 Broad and functional understanding (“... as an instrument to advance …”), comprising, in principle, direct and indirect gender equality aspects in - the contract announcement/technical specifications, - the grounds for exclusion and/or selection criteria, - the award criteria and - the contract performance conditions
Gender Procurement

5. In Germany, the implementation of social requirements in
In Germany, the implementation of social requirements in public procurement such as “gender requirements” is particularly relevant on the state level: Each of the German Länder (except for Bavaria and Saxony) has its own public procurement law, with individual provisions implementing strategic goals (e.g. ecological and social aspects) of public procurement.
Five Länder with specific gender requirements: Berlin, Brandenburg, Nordrhein-Westfalen, Schleswig-Holstein and Thüringen (the public procurement laws of Rheinland- Pfalz and Sachsen-Anhalt merely contain equal pay rules)
Gender Procurement

6. 1. Technical Specifications
gender requirements which form part of the material substance of the requested works, supplies or services
Example ( Berlin): equipping public buildings with additional gender- neutral restrooms
Gender Procurement

7. Non-use of designs which may be perceived as being
Non-use of designs which may be perceived as being gender-discriminatory
Example ( Berlin): prohibition of adverts which reduce women or men to sexual objects on public advertising space available for concessions
Gender Procurement

8. 2. Grounds for Exclusion
 Particularly important “obligations in the fields of (…) social and labour law”:
Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation; Directive 2006/54/EC (recast)
Directive 2004/113/EC implementing the principle of equal treat- ment between men and women in the access to and supply of goods and services
 implementation: General Act on Equal Treatment (“AGG”)
Gender Procurement

9. 3. Award Criteria Example ( Brandenburg): Taking account of the
share of women among the
(well qualified) employees of
tenderers when determining
the most economically
advantageous tender
Gender Procurement

10. Ҥ 4 Preferred Tenderers Ҥ 10 Preference Procedure
Regulation on the Promotion of Women (Brandenburg):
Ҥ 4 Preferred Tenderers
(1) Preferred tenderers are those who are committed to the promotion of equality of women and men at work and who have, in relation to the other tenderers, at the time of the submission of the tender
1. a higher share of women among their employees, including trainees, and who have
2. a higher share of women in management and executive positions.
(…)”
Ҥ 10 Preference Procedure
(1) The contracting authority parameterizes
1. the share of women among the employees (…),
2. the share of the gross salary of female employees (…)
(…)
(4) The tenderer with the highest amount of parameters shall be preferred.”
Since the 2016 reform, mandatory award criteria in the public procurement laws of the Länder are not permitted any more (§ 129 GWB)!
Gender Procurement

11. Allgemeines Gleichbehandlungsgesetz (AGG)
4. Contract Performance Conditions
In practice, contract performance conditions are the most common instrument of gender procurement.
Example: § 13(1) of the Act on the Promotion of Equality of Women and Men at Work – „LGG“ (Berlin) “Public supply and service contracts with a value of Euros and public works contracts with a value of Euros need to provide obligations for contractors to take [1] measures for the promotion of women and [2] for the reconciliation of work and family life in their own enterprises and to [3] comply with their applicable obligations under non-discrimination legislation. (…)”
Allgemeines Gleichbehandlungsgesetz (AGG)
vom 14. August 2006 (BGBl. I S. 1897),
zuletzt geändert durch Artikel 8 des Gesetzes vom 3. April (BGBl. I S. 610)
Abschnitt 1 Allgemeiner Teil
§ 1 Ziel des Gesetzes
Ziel des Gesetzes ist, Benachteiligungen aus Gründen der Rasse oder wegen der ethnischen Herkunft, des Geschlechts, der Religion oder Weltanschauung, einer Behinderung, des Alters oder der sexuellen Identität zu verhindern oder zu beseitigen.
[1]
[2]
[3]
Gender Procurement

12. § 2 of the Regulation on the Promotion of Women (Berlin) – 1/3:
“Measures for the promotion of women and for the reconciliation of work and family life within the meaning of § 13 LGG are:
1. implementation of a detailed plan for the promotion of women
2. binding targets with regard to increasing the representation of women on all job levels
3. increasing the representation of women in management and executive positions
4. increasing the share of trainee positions for females
5. considering female trainees for permanent employment, at least in proportion to the share of female trainees
6. establishment of a women’s representative
7. monitoring of equal pay in the enterprise
8. offering of internship positions for young women, particularly in fields with a typically low share of women
(…)
Gender Procurement

13. § 2 of the Regulation on the Promotion of Women (Berlin) – 2/3:
“Measures for the promotion of women and for the reconciliation of work and family life within the meaning of § 13 LGG are: (…)
9. participating in recognized measures and initiatives which aim at inspiring young women for male-dominated jobs
10. creating specific training possibilities for women only, qualifying them for management and executive positions
11. providing for other internal training possibilities for women, at least in proportion to the share of female employees
12. providing for external training possibilities for women, at least in proportion to the share of female employees
13. preferred promotion of women after completion of internal or external training measures
14. offering of flexible working hours
15. offering of alternating teleworking
(…)
Gender Procurement

14. § 2 of the Regulation on the Promotion of Women (Berlin) – 3/3:
“Measures for the promotion of women and for the reconciliation of work and family life within the meaning of § 13 LGG are: (…)
16. possibility of part-time work on a fixed-term basis, with an option to return to full-time (including management and executive positions)
17. for employees on parental leave: possibilities of keeping in touch with professional life, training possibilities and covering for other staff who are on vacation or sick
18. offering internal or external child care facilities (within and outside the operating hours of regular child care facilities)
19. offering support and flexibility for employees with educational and family care responsibilities
20. turning marginal employment into (at least) part-time employment
21. avoiding a disproportionate reduction of the share of female employees when it comes to staff reduction.”
Gender Procurement

15. § 3 of the Regulation on the Promotion of Women (Berlin): “(1) Enterprises with more than 500 employees have to choose three of the measures pursuant to § 2, with at least one measures falling within numbers 1 to 6. (2) Enterprises with more than 250 employees and less than 500 employees have to choose three of the measures pursuant to § 2. (3) Enterprises with more than 20 employees and less than 250 employees have to choose two of the measures pursuant to § 2. (4) Enterprises with less than 20 employees have to choose one measure pursuant to § 2 numbers 1 to 20. (…)”
Gender Procurement

16. III. Gender Procurement under the European Public Procurement Directives  Two major limitations for implementing gender requirements in public procurement under the 2014 directives: (1) Sufficient link to the subject-matter of the contract (for gender requirements in technical specifications, award criteria and contract performance conditions) See Articles 42(1)(2), 67(3) and 70 of Directive 2014/24/EU (2) Proportionality See Articles 18(1) and 42(1)(2) of Directive 2014/24/EU  “Balanced Gender Procurement”
Gender Procurement

17. 1. Technical Specifications
gender requirements which form part of the material substance of the requested works, supplies or services
 fully compatible with EU law
requirements relating to the non-discriminatory perception of the subject-matter
 link to the subject-matter of the contract doubtful
Gender Procurement

18.  probably in line with § 31(3) VgV
requirement of a minimum share of women among the persons assigned to performing the contract
 probably in line with § 31(3) VgV
“The characteristics can also refer to aspects of quality and innovation as well as social and environmental aspects. They can also refer to the process or the method of production or provision of the requested works, supplies or services or to another stage of the life cycle of the subject-matter of the contract, including the production and supply chain, even where such factors do not form part of its material substance provided that they are linked to the subject-matter of the contract and proportionate to its value and its objectives.”
 but: compatibility with EU law doubtful
Recital 99 of Directive 2014/24/EU:
„In technical specifications contracting authorities can provide such social requirements which directly characterise the product or service in question, such as accessibility for persons with disabilities or design for all users.”
Gender Procurement

19. Allgemeines Gleichbehandlungsgesetz (AGG)
2. Grounds for exclusion and/or Selection Criteria
Exclusion ground provided in § 124(1)(1) GWB is in conformity with Art. 57(4)(a) of Directive 2014/24/EU
“Contracting authorities may exclude any economic operator, with due respect to the principle of proportionality, from participation in a procurement procedure at any time (…) if the authority can demonstrate that in the performance of a public contract the economic operator has violated its applicable obligations in the fields of environmental, social and labour law.”
Selection criteria are exhaustively determined in Art. 58(1) of Directive 2014/24/EU:
“Selection criteria may relate to:
(a) suitability to pursue the professional activity;
(b) economic and financial standing;
(c) technical and professional ability.”
 No room for gender requirements as selection criteria!
Allgemeines Gleichbehandlungsgesetz (AGG)
vom 14. August 2006 (BGBl. I S. 1897),
zuletzt geändert durch Artikel 8 des Gesetzes vom 3. April (BGBl. I S. 610)
Abschnitt 1 Allgemeiner Teil
§ 1 Ziel des Gesetzes
Ziel des Gesetzes ist, Benachteiligungen aus Gründen der Rasse oder wegen der ethnischen Herkunft, des Geschlechts, der Religion oder Weltanschauung, einer Behinderung, des Alters oder der sexuellen Identität zu verhindern oder zu beseitigen.
Gender Procurement

20. 3. Contract Award Criteria and Performance Conditions
award criteria and binding requirements to take measures for the promotion of women and for the reconciliation of work and family life (e.g. minimum share of women among the employees or among the people assigned to performing the contract)
 both (1) sufficient link to the subject-matter of the contract and (2) proportionality appear doubtful
Recital 99 of Directive 2014/24/EU:
„Measures aiming at the (…) favouring of social integration of disadvantaged persons or members of vulnerable groups amongst the persons assigned to performing the contract or training in the skills needed for the contract in question can also be the subject of award criteria or contract performance conditions provided that they relate to the works, supplies or services to be provided under the contract. For instance, such criteria or conditions might refer, amongst other things, to the employment of long-term job-seekers, the implementation of training measures for the unemployed or young persons in the course of the performance of the contract to be awarded. (…)”
Gender Procurement

21.  In principle, award criteria and binding requirements with the aim of incentivizing/demanding measures for the promotion of women and for the reconciliation of work and family life seem to be in line with Directive 2014/24/EU, as long as these criteria/requirements
- relate to the persons assigned to performing the contract (otherwise tenderers would be required to have a certain corporate social responsibility policy in place!) and
- are proportionate to the value and the objectives of the contract.
 Many of the award criteria and contract performance conditions set out in the procurement laws on the State Level are not sufficiently linked to the subject-matter of the contract, and some of them do not exclude the application of these criteria / requirements to contracts with (relatively) little value.
Gender Procurement

22. Gender Procurement

23. Thank you!
Gender Procurement