Can equality issues be used as selection criteria?
There are two ways in which issues relating to a tenderer’s previous compliance with equality legislation and current equality policies may validly be included by a contracting authority at the pre-qualification questionnaire stage and used as selection criteria: • Firstly, under the discretionary disqualification criteria set out in regulation 23(4)(e). This regulation allows public authorities to exclude potential suppliers from the procurement process if they have been found guilty of “grave professional misconduct”. Government guidance has confirmed that this misconduct could include a breach of equality legislation, providing the example of a breach of the Sex Discrimination Act 1975 in the context of a contract for recruitment services aimed at helping to get parents of young children back into work. However, any contracting authority considering exercising its discretion to exclude a tenderer should: • assess the seriousness of any such offences; • give the tenderer the opportun
