Gender equality in public contract

1. GENDER EQUALITY IN THE LEGISLATIVE DECREE 18^th APRILE 2016 NO. 50 (PUBLIC CONTRACTS CODE)

In Italy, the Public Contracts Code (hereinafter also “PCC”) is a tool through which the Law-Maker can impose virtuous practices on the companies, at least in the performance of the public contracts. And in fact, all participants in public tenders must have the so-call “moral requirements” (such as not having any fiscal irregularities or their managers cannot be involved in criminal proceedings).

Hence, the Public Contracts Code could also promote gender equality in private companies.

It should be underlined that – at least so far – only a small contribution has been given, which is: according to article 93, par. 7 PCC, the provisional economical guarantee is reduced by 30% – among other cases – also if the company possesses the so-called “Gender equality certificate”.

Recently, a more persuasive measure has been introduced by article 34 para. 1, letter b), Decree-Law 30^th April 2022 no. 36. In fact, each Awarding Authority can adopt evaluating criteria that enhance those companies that have adopted gender equality policies. (see art. 95, para. 13 PCC).

2. GENDER EQUALITY IN THE NATIONAL RECOVERY AND RESILIENCE PLAN (PNRR)

The Law-Maker has adopted a more concrete approach with regard to the public contracts, funded with the resource of the National Recovery and Resilience Plan (hereinafter with the Italian acronym “PNRR”).

In fact, the art. 47 D.L. 31^st May 2021, no. 77 “Gender equality and inclusion in public contracts, in PNRR and PNC”, provides measures to promote the achievement of equal opportunities for young people and women, adopting two strategies:

1. dictating prerequisites for participation in PNRR-funded public contracts. These shall apply even if it is not specially prescribed in the tender notice (as provided by the Inter-ministerial Decree 7^th December 2021 “Guidelines to promote gender and generation equality, as well as the inclusion of disabled people in public contracts supported by PNRR and PNC”; hereinafter “Guidelines”);
2. suggesting criteria for evaluating the offer, that can be adopted by the single Awarding Authority;

Point i)

Referring to the prerequisites, all companies must draw up a report related to the “state of recruitment” of males and females. Whereas companies with more than 50 employees must submit along with the bid, companies with more than 15 employees and less than 50 shall submit the abovementioned report within six months after the conclusion of the contract.

Moreover, despite the number of employees, all companies must guarantee that at least 30% of the people necessary for the performance of the contract are women.
The Awarding Authority can reduce the percentage but only with strong reasons, that should be thoroughly explained. The Guidelines provide some examples of situations in which it can be possible to diminish the percentage of hired women (such as direct award with a scarce value or contracts in which the people to be hired are less than three.).

If they fail to comply with these provisions, the Awarding Authority is forced to exclude the economic operator from the tender or, if the contract has been already signed, to terminate it.

Point ii)

Art. 47 suggest also some evaluating criteria that can be used by each Awarding Authority, such as i) the case in which the economic operator commits to hiring more than 30% of women or ii) they have applied gender equality policies in the last three years.

3. CONCLUSION

These provisions can have a bearing on the increase of gender equality in companies, even if, right now, they are limited only to the “PNRR Public contracts”.

In fact, firstly – and it should not be undervalued – it helps the awareness of this matter, then it is a first step that could lead to adopting these and further provisions for all the public contracts, not just the PNRR-founded ones. In this sense, it is worthy to enlighten the recent adoption of the Law 21^st June 2022 no. 78, which delegates the Government to approve new legislative decrees to reform regulation of the public contracts.

As of interest here, it is remarkable the art. 1, par. 2, point h), according to whom the Awarding Authorities must insert in the tender notice also criteria that evaluate gender equality.

The hope is that the Government will highly consider this provision, adopting binding and effective measures in order to effectively promote gender equality.