Background

The Provincial Council of Gipuzkoa administrates one of the three Spanish provinces that make up the autonomous community of the Basque Country. In 2019, it had 720,592 inhabitants. More than half of the population lives in the metropolitan area of San Sebastian. The Provincial Council of Gipuzkoa represents an intermediate administrative level between the regional and the local level, due to the specificities of the administrative system of the Basque Country. The Province of Gipuzkoa, like the other two provinces of the Basque Country, has its own parliament and government with specific competences, which include taxation, road infrastructures, social policies, gender equality and mobility, among other ones.

The Basque Law 4/2005 on Equality between women and men laid the foundations for a process that the Provincial Council of Gipuzkoa started in 2008. This has led to the gradual and generalised incorporation of gender equality clauses in its public procurement procedures. The process began in 2008 with the creation of the first Gender Equality Body. This body identified the use of gender equality clauses in public procurement as one of the axes for applying gender mainstreaming. Thus, it raised awareness about the need to institutionalise the process in the other departments. In 2010, the Gender Equality Body started a capacity-building programme, which included a training course on gender public procurement addressed to the provincial technical secretaries and staff with responsibility for contracting. From 2010 to 2018, a working group provided permanent support to the bodies in charge of public procurement, working not only on the technical aspects, but also on the joint development of the processes. In 2020, a new service was set up, to coordinate the work on public procurement of all departments of the Provincial Council and to establish common interdepartmental criteria.

Currently, the Gender Equality Body and this service are working together in a new gender capacity building process with civil servants in charge of public procurement.

Procurement objectives

The objective of the Provincial Council of Gipuzkoa was to promote gender equality between women and men through public procurement. The approach chosen was, first, to define and implement a coordinated support system to include gender equality clauses in a systematic way in its procurement procedures, and in a second phase, to monitor and evaluate their use. A process of continuous reflection by the contracting authority accompanied this, which resulted in the regular update and development of new provincial laws, guidelines, strategies and capacity building.

The Gender Equality Body has been the driving force behind the process, putting the issue on the table to arouse interest, working all the time with the heads of the legal services of the Provincial Council, sometimes with the support of external experts too.

Now the objective of the Provincial Council is to improve the quality of the gender equality clauses and their impact, including by improving monitoring and evaluation.

The process

In more than two decades, the Provincial Council of Gipuzkoa has developed a comprehensive process to promote gender equality by the means of public procurement. This process foresees a legislative/regulatory component, a capacity building programme, and a system of monitoring and evaluation. On the legislative/regulatory side, the objective of using public procurement to promote gender equality was included in regulations and strategies on both public procurement and gender equality.

In 2011, the Provincial Council reached an Agreement for the inclusion of gender equality clauses in its public procurement contracts and grants. During the period 2013-2015, it approved three additional laws:

• ‘Norma Foral 4/2013’, of 17 July, on the incorporation of social clauses in works contracts in the Provincial Public Sector
• ‘Norma Foral 11/2014’, of 29 October, on the incorporation of contractual clauses relating to socially responsible public procurement, provides for a wider scope of application of gender clauses
• ‘Norma Foral 2/2015’, of 9 March, for the Equality of women and men.

The contracting authority has also put emphasis on monitoring and evaluation. During the period 2013-2016, all the departments of the Provincial Council carried out monitoring to identify the contracts that had incorporated gender equality clauses.

The first step of the monitoring was of a quantitative nature. The second step was to analyse the type of clauses used and especially the phase of the tender in which they were included. The finding was that the number of gender equality clauses included in tendering procedures had in general increased, namely in award criteria.

However, while the inclusion of gender equality clauses in award criteria was the easiest way to proceed for the contracting bodies, this could not guarantee that the bidder with the highest score on gender equality would be the successful bidder. This generated an internal reflection, after which it was determined that performance conditions were the most impactful element, because they are enforceable for all bidders and their non-compliance may even lead to termination of the contract. For service contracts, the contracting authority also requires contractors to submit reports providing data disaggregated by gender, a description of the gender inequalities identified and the measures implemented to address them.

In 2017, the Provincial Council developed a guide for monitoring gender equality clauses, an internal working document. It set out for each of the phases of preparation, award, and performance of the contract, a catalogue of examples of how to draft and monitor the list of applicable clauses, as well as the consequences of non-compliance. For example, regarding the obligation to implement work-life balance measures as part of the performance conditions, the guide proposes requirements for contractors to submit to the contracting authority:

1) the catalogue of agreed measures, possibilities and conditions, by means of a certificate from the management.

2) regular data on the work-life balance measures implemented during the performance of the contract.

3) surveys on staff performing the contract. Inspections can take place to verify the agreed measures. If the measures are not presented, or not duly complied with, penalty applies.

Recently, the Gender Equality Body initiated a new internal capacity building process. The first phase focused on social clauses and ended in summer 2022. The second phase will start in autumn 2022, with a pilot project on gender equality clauses to follow-up a number of pre-selected contracts. Ensuring effective monitoring by all responsible contracting agents is the next challenge to address, given that the incorporation of the gender clauses as an instrument to achieve the gender equality objectives in all contracts has been achieved.

 

Results and social impacts

In 2019, an external evaluation was carried out on the impact of the incorporation of gender equality clauses. The impact was analysed, both from the perspective of the different departments of the Provincial Council and of the awarded companies. A sample of 10 very diverse contracts was selected, covering all types of works and services, and analysed through interviews and focus groups, both internal and external. The evaluation showed the following results:

• More gender experts were hired by bidders/contractors, because of gender equality clauses.
• In some work contracts, the number of women in managerial positions has increased.
• Among the contractors, the following improvements in terms of gender equality can be observed: increased awareness raising and training in gender equality; boost to women’s empowerment; and increased number of women in managerial positions or in higher positions.
• Public procurement officers found that the incorporation of the clauses had changed not only their monitoring processes, but also their planning processes, which now take into account gender equality clauses from the very beginning.

The evaluation demonstrated that policy put in place by the Provincial Council of Gipuzkoa has had a clear impact. In 2013, there were 71 contracts including gender clauses. In 2016, gender clauses were included in 172 contracts out of 210 (82%) and in all types of contracts: services (116 contracts), works and products (39), supplies (12), concessions (3) and special contracts (2). A total of 19 directorates out of 8 departments had included gender equality clauses. 85% of the clauses used were incorporated into the contract performance conditions. The most frequent gender equality clauses in the contracts were the following:

• Having a gender equality plan or a commitment to draw up a gender equality plan in the execution of the contract.
• Specific measures to promote gender equality linked to working conditions, conciliation, training in gender equality, prevention of sexual harassment and harassment at work for reasons of sex, etc.
• Non-gender stereotyped use of language and images.
• Measures for work-life balance.
• New hires in favour of parity in case of imbalance between the number of men and women.
• Measures or protocol for the prevention of sexual harassment and harassment on grounds of sex at work.
• Data and results: sex-disaggregated data and gender indicators.
• Gender analysis of results and processes.

In 2021, the Provincial Council’s data show that gender equality clauses are included in all its public contracts, with different degrees and levels of application and thus not always the same results. From a qualitative perspective, there has been an evolution, too, since initially gender equality clauses were mainly incorporated in award criteria, whereas nowadays they are generally included in the contract performance conditions. The contracting authority is of the opinion that this has greater potential to generate real impact in favour of gender equality.

Example of a procedure with gender equality clauses 

To illustrate the use of gender equality clauses, we illustrate the example of a procedure for a framework agreement for the provision of the occupational risk prevention service. It includes gender aspects in the object of the contract, in contract performance clauses, and in the requirements for the team performing the contract.

Object of the contract

The tender documents required that the following studies and evaluations that had to be developed during the contract, to systematically include the gender variable, disaggregate data by sex, identify inequalities between women and men, and incorporate gender indicators:

• Studies on the incidence of psychosocial factors associated with illness, including: gender roles, which overburden women, by assigning them care work; gender-based violence and its various expressions, such as sexual and sexist harassment at work and the situation of women facing gender-based violence.
• The assessment of hygienic risks, as many agents have different effects on men and women depending on the distribution of adipose tissue, hormonal characteristics, etc.
• The investigation of occupational accidents and occupational illnesses, and the evaluation of ergonomic risks.

Contract performance clauses

• During the execution of the contract, the successful tenderer must guarantee the balanced participation of women in all areas of action and in decision-making positions. Furthermore, it shall facilitate the reconciliation of family and professional life, promoting the co-responsibility of men for care.
• The contractor, during the execution of the contract, must establish measures that guarantee the equality of women and men in access to employment, promotion, permanence, training, remuneration, quality and stability of work, duration and organisation of the working day. They also need to set up measures that favour the reconciliation of the personal, family and working life of the personnel assigned to the contract.
• The company awarded the contract must use non-sexist language in all its documentation, publicity, image or material generated as a result of the execution of the contract, and must avoid any discriminatory image of women or sexist stereotypes and promote an image with values of gender equality, balanced presence, diversity, co-responsibility and plurality of gender roles and identities.

The contractor shall guarantee the adoption of measures to prevent sexual harassment and harassment for reasons of sex at work in those contracts whose execution requires more than ten workers.

Results

Concerning the specific example of procurement procedure analysed, four bidders participated in the tender, which was divided into seven Lots. Two large companies were contracted for different Lots: IMQ (Lots 1, 2, and 7) and CHIRON (Lots 3, 4, 5 and 6). The contract was awarded in 2020 for two years, and it will be in force until the end of 2022. The contract value of the different Lots ranged from 18.116,00€ to 176.285,00€.

Both companies had in the team a person with specific training in gender equality, as this was a requirement of the tender. The evaluations and analyses of the service carried out incorporated the sex variable, disaggregating the data by sex and identifying possible gender inequalities, as required. As this is a framework agreement, the Provincial Council does not carry out the monitoring of the contracts for the different Lots directly. The entities in charge of the specific contracts are also responsible for the monitoring of the contracts.

Lessons learned

The key factors for success of this initiative are centred on the following aspects:

• Political commitment, starting with the Agreement in 2011 and subsequent Provincial Regulations.
• A dual strategy, both from the perspective of gender equality and of public procurement, as reflected in the different Provincial Regulations.
• Continuous promotion, coordination and advice by the Gender Equality Body.
• Connecting the political process with actual practice and involving all the relevant actors: technical secretariats, recruitment and intervention staff.
• At the technical level, the work has been carried out with rigour and quality, which has legitimised the process and made it possible to give it continuity over four legislatures and regardless of political circumstances.

The main lessons learned from the whole process are as follows:

• Avoid bureaucratisation of gender equality clauses, which are an instrument to be applied, not an end in themselves.
• Legal frameworks are important. Having gender equality clauses incorporated into the various levels of implementation in a normative way, helps to institutionalise and strengthen the procedure exponentially.
• Adequately monitor compliance with gender equality clauses, thereby improving the image and administrative performance of the contracting authority.
• Institutionalising the process has eliminated the "fear" on the part of contracting authorities to enforce the clauses, avoiding increasing bureaucratisation, discouraging participation, or affecting competition. By establishing clear guidelines and definitions, bidding companies understand the importance of such clauses in the context of the contract, and it even helps them to develop beneficial internal competencies and practices.
• As gender equality clauses tend to disappear when talking about social clauses, they need a specific approach in order to have a real impact.

More information

Contact person: Ana Agirre Saez de Eguilaz, Head of Gender Equality Service