Public Procurement Law applies whenever the state or public authorities procure works, goods or services. While at first glance public procurement law is an instrument to ensure fair competition, there is more to it than meets the eye. As the state or public authorities purchase works, goods or services they act as a role model and shape society and the economy (price dumping vs. competition for quality); and this even more so, as the public procurement market accounts for approximately one fifth of the European GDP.
The goals of promoting women and gender equality are in line with competition law and it is incumbent on the state to take account of these goals. Also, entering into public agreements, it makes use of public budgets. Therefore, the constitutional stipulations on gender budgeting apply (art 7 para 2 and art 13 para 3 of the Austrian Constitution).
Recently, Austria adopted a new legislative framework on public procurement: On 20 August 2018 the Austrian public procurement law was totally revised by a reform package (Vergaberechtsreformgesetz 2018), which consists of a Public Procurement Law 2018 (BVergG 2018) and a Public Procurement Concession Law 2018 (BVergGKonz 2018). The new legal framework, most of which entered into force the day following its publication in the Federal Gazette (BGBl. I Nr. 65/2018), reinforces the options for promoting women and gender equality in public procurement.
In which ways does the new BVergG 2018 take account of women and gender equality?
The existing stipulations on the promotion of women and gender equality were incorporated into the new legal framework unchanged. In this regard §§ 20 para 6 and 193 para 6 BVergG 2018 reflect the former facultative clause of the BVergG 2006 according to which criteria on the promotion of women and gender equality or any other socio-political goals may be used in the description of the contract, its technical specifications, the contract criteria or the award criteria).
Also, the new law (art 110 para 1 line 13 BVergG 2018) continues to highlight aspects related to the promotion of women as potential contract clauses. In addition, art 93 BVergG 2018 contains mandatory stipulations on the respect of social and labour law. According to the explanatory notes this does not only comprise mandatory stipulations but also the promotion of women.
The explanatory notes on articles 20, 93 and 110 list the promotion of women, gender equality, gender aspects and equal opportunities as potential examples, too. By this, they emphasise the possibilities for the promotion of women and gender equality granted by public procurement legislation. According to a teleological interpretation, this also applies to public procurement by public utilities or the award of concession contracts.
In a nutshell: What does the new public procurement law hold in store when it comes to the promotion of women and gender equality?
It has been possible to take account of women and gender equality at all levels of public procurement ever since the new millennium, even with regard to criteria which are not assessed during the tender. However, the basic public procurement principles – being subject-relatedness, proportionality and non-discrimination – must be respected. Even though this is a challenge, the explanatory notes on the new law pointing to the legitimacy of those criteria and referring to existing guides on social procurement do encourage their use. They raise awareness and eliminate legal uncertainty.
Finally, EU and national organisations and institutions have published guides and checklists on how to consider the promotion of women and gender equality in public procurement (see EIGE’s Checklist or SALAR’s Guide for instance). This is referred to as Gender Procurement or gender-sensitive procurement.
Find the law and more detailed information on the Website of the Austrian Parliament.
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