RESTRICTED  
  
GPA/ACC/GBR/18  
 
5 October 2018  
(18-6173) Page: 1/4 
Committee on Government Procurement  Original: English  
 
ACCESSION OF THE UNI TED KINGDOM TO THE A GREEMENT ON GOVERNME NT 
PROCUREMENT IN ITS O WN RIGHT  
The following document from the United Kingdom, dated 5 October 2018, is being circulated at the 
request of the Delegation of the European Union.  
 
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REPLIES FROM THE UNI TED KI NGDOM TO THE COMMENTS  AND ADDITIONAL 
QUESTIONS FROM THE U NITED STATES (GPA/AC C/GBR/14) CONCERNING  THE REPLIES 
OF THE UNITED KINGDO M TO COMMENTS AND QU ESTIONS FROM THE  UNITED STATES 
(GPA/ACC/GBR/9)  
1  LEGAL FRAMEWORK  
1. Annex B of the Pr ocuring for Growth Balance Scorecard (Balanced Scorecard 
Strategic Themes and Critical Success Factors in Relation to the Procurement Process) in 
Procurement Policy Note 09/16 (PPN 09/16) identifies "employment" as a critical success 
factor. Annex B furthe r indicates that the employment factor can be applied at the award 
criteria stage and at the contract performance conditions stage. Please provide responses 
to the questions raised regarding examples specified in Annex B for Employment:  
PPN 09/16 provides guidance for central government departments, their executive agencies and 
non-departmental public bodies for high value construction, infrastructure and capital investment 
procurements.  The Scorecard provides a tool to assist departments to balance matters  such as cost 
against broader policy considerations, where appropriate. It makes it clear that such considerations 
can only be taken into account where they are relevant to the subject -matter of the contract and 
where it is proportionate to do so (see para graph 9 of the Scorecard). In using this tool, departments 
must comply with legal requirements relating to contract award criteria, as well as the legal 
requirements of non -discrimination, equal treatment and transparency in the Public Contracts 
Regulation s 2015 (see paragraph 13 of the Scorecard).  In this way, the Scorecard approach is fully 
consistent with GPA obligations and does not result in discrimination against suppliers from third 
countries.  
 
Award criteria evaluated on the basis of training new wo rkers for delivery of the 
contract.  
 
a. Is the award criteria evaluation limited to new workers trained in the relevant 
area, as defined in Section 1(4) of the Public Services (Social Value) Act 2012? 
Are tenders that offer to train workers in another GPA co untry treated equally to 
an offer that comm its to train workers in the UK?  
The award criteria used to determine the most economically advantageous tender and the 
contract performance conditions will be determined for each procurement by the procuring 
depar tment. The Scorecard provides a tool to facilitate the department 's consideration of 
broader policy considerations, which may include employment -related considerations 
where these are relevant to the subject -matter of the contract and proportionate.  
 
Tende rs from suppliers from another GPA country would always be treated equally to 
tenders from the UK, in compliance with the legal requirements of non -discrimination and GPA/ACC/GBR/18  
 
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  equal treatment in the Public Contracts Regulations 2015 and consistent with GPA non -
discrimination principles.  
 
Contract clause that requires the contractor to advertise new employment, as 
appropriate.  
 
b. Please provide information about how this has been applied. Would this be 
limited to advertising new employment in the relevant area as defi ned in Section 
1(4)? Would a company be able fulfil this by advertising for new employment 
opportunities in another GPA country?  
Please see our response to a. above. Such a contract clause would need to be relevant to 
the subject -matter of the contract and  proportionate. Depending on the nature of the 
contract, the place of delivery and the proposed location of the supplier 's workforce, such 
a requirement could be satisfied by advertising new employment opportunities in another 
GPA country.  
 
Award criteria evaluated on the basis of evidence of the suppliers' commitment to 
good employment practices relevant to the contract.  
 
c. Please define "good employment practices". What guidance is provided by the 
procuring entities on appropr iate good employment practices?  
There is no legal definition of "good employment practices " in the UK. These include 
practices to combat discrimination, harassment and victimisation in the workplace, pay 
and benefits, equality and diversity and union relations.  The Supplier Co de of Conduct sets 
out the standards the UK government expects of its suppliers, which include employment 
related practices.  This is available here:  
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachme
nt_data/file/646497/2017 -09-
13_Official_Sensitive_Supplier_Code_of_Conduct_September_20 17.pdf . 
 
Contract performance conditions that cover fair and equal pay, promotion of equality 
& diversity and effective engagement of the workforce on the project.  
 
d. Does the UK have laws on fair and equal pay and promotion of equality and 
diversity? If so,  please identify the specific laws. If these are legal requirements, 
why are these contract performance conditions as opposed to conditions for 
participation?  
In terms of fair and equal pay, the Equality Act 2010 implies into all contracts of 
employment an  "equality clause " which operates when an employee is employed on like 
or equivalent work or of an equal value to that performance by a member of the opposite 
sex in the same employment.  Any term in a woman's or man 's contract which is less 
favourable than  a man's or woman 's contract (as appropriate) is modified so as to be not 
less favourable, unless the employer can show that the reason for the difference in pay or 
conditions is a material factor other than sex.  
 
In terms of equality and diversity, the E quality Act 2010 gives employees and applicants 
for employment statutory protection against discrimination on a number of grounds: age; 
disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; 
race; religion or belief; sex;  and sexual orientation.  The Act also requires public bodies to 
comply with the Public Sector Equality Duty. The duty requires public bodies to consider 
all individuals when carrying out their day -to-day work – in shaping policy, in delivering 
services and  in relation to their own employees – and requires that public bodies have due 
regard to the need to eliminate discrimination, advance equality of opportunity and foster 
good relations between different people when carrying out their activities.  
 
In Wales,  the Equality Act 2010 (Statutory Duties) (Wales) Regulations 2011 apply as well 
as the Equality Act 2010.  In Scotland, the Equality Act 2010 (Specific Duties) (Scotland) 
Regulations 2012 also apply.  
 GPA/ACC/GBR/18  
 
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  The Equality Act 2010 does not apply to Northern Irelan d. In Northern Ireland, in terms 
of fair and equal pay, the Equal Pay (Northern Ireland) Act 1970 applies and, in terms of 
equality and diversity, a range of legislation applies including the Disability Discrimination 
Act 1995, the Sex Discrimination (Nort hern Ireland) Order 1976, the Employment Equality 
(Age) Regulations (Northern Ireland) 2006, the Race Relations (Northern Ireland) Order 
1997, the Fair Employment & Treatment (Northern Ireland) 1998, the Employment 
Equality (Sexual Orientation) Regulations  (Northern Ireland) 2003 and the Equality Act 
(Sexual Orientation) Regulations (Northern Ireland) 2006.  
 
The Scorecard critical success factor relating to employment covers a range of issues, 
some of which are legal requirements and other which may be poli cy considerations.  As 
the Scorecard makes clear, requirements can be incorporated at different stages of the 
procurement process and in different ways, including as contract award criteria, contract 
performance conditions or conditions for participation (s ee paragraph 5 of Annex A of the 
Scorecard).  It is for the procuring department to determine how best to incorporate 
particular requirements in their procurement.  
 
e. If this factor does not reflect existing legal requirements, please indicate how 
these conce pts are defined. Please share guidance provided to procuring entities  
on how to apply these factors.  
Please see our response to d. above.  In addition to the Scorecard and associated guidance 
previously referred to, the UK government has published The Publi c Contracts Regulations 
2015: Guidance on Social and Environmental Aspects. This is available here:  
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachme
nt_data/file/558032/20160912socialenvironmentalguidancefinal.pdf . 
 
f. Please explain what "effective engagement of the workforce" means.  
"Effective engagement of the w orkforce " does not have a particular meaning. In the 
Scorecard, it is referred to in the context of effective workforce engagement where the 
quality of what is being delivered depends on a well -managed, well -motivated workforce. 
This refers to the workforc e engaged on the contract, not a supplier 's workforce in general.  
Effective engagement could take a number of different forms, depending on the particular 
procurement.  
 
The Scorecard sets out the importance of training, stating that the training of a supp lier's 
existing workforce may legitimately be the subject of project requirements where it will 
benefit the delivery of the contract in question. This can be a useful approach in that it 
has the potential to improve the skills available to the contractor t o the benefit not just of 
the customer in relation to that specific contract but also to the contractor 's broader 
competitiveness.  
 
g. How is this factor applied to a company with facilities around the world?  
It is for the procuring department to determine whether to, and how best to, incorporate 
this factor into its procurement.  The Scorecard makes it clear that it can only be applied 
where it is relevant to the subject -matter of the contract and proportionate. In addition, 
the manner in which it is applied  must not breach the legal requirements of non -
discrimination and equal treatment in the Public Contracts Regulations 2015 and the GPA 
non-discrimination principles.  
 
2. Procurement Policy Note 14/15 – Supporting Apprenticeships and Skills Through 
Public Proc urement Action (PPN 14/15) indicates that the UK Government is committed 
to increase the quantity and quality of apprenticeships in England to three million starts 
over the next five years (starting in 2015). PPN further notes that public procurement of 
contracts with a full life value of £10 million and above and duration of 12 months and 
above should be used to support skills development and delivery of the apprenticeship 
commitment. Apprenticeships are defined as full time paid jobs with training, which 
typically last a minimum of 12 months. "As an example of good practice, and depending 
on the size of the contract and the market, we would expect contractors to aim for 3 -5% 
of the workforce to be apprentices, sponsored students and/or on graduate programm es, GPA/ACC/GBR/18  
 
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  with a focus on apprentices. 5% would represent a gold standard (which is equivalent to 
the industry -led "5% Club")."  
PPN 14/15 provides guidance for central government departments, their executive agencies and 
non-departmental public bodies for high v alue procurements on taking into account appropriate 
investment in skills outcomes, in particular through formal apprenticeship schemes, in procurement 
decisions.  It makes it clear that such considerations can only be taken into account where they are 
relevant to the subject -matter of the contract and it is proportionate to do so and that the legal 
requirements of non -discrimination, equal treatment and transparency in the Public Contracts 
Regulations 2015 must be complied with (see Annex A, page 6 of the P PN). In this way, the PPN 
approach is fully consistent with GPA obligations and does not result in discrimination against 
suppliers from third countries.  
 
a. Please indicate whether a proposal to foster apprenticeships in other GPA 
countries would be treated equally to a proposal to foster apprenticeships in the 
UK. If yes, please indicate whether guidance to this effect has been provided.  
The apprenticeship commitment referred to in PPN 14/15 relates to apprenticeships in 
England.  The example of good practic e referred to in your question relates to a percentage 
of the workforce on the particular contract in question, rather than the supplier 's workforce 
more generally.  Consideration of a supplier 's wider workforce would not be relevant to the 
subject -matter o f the contract or proportionate.  Suppliers from GPA countries would be 
treated equally with suppliers from the UK with regard to the consideration of such factors.  
 
b. PPN 14/15 states that procuring entities should not use criteria that potentially 
discrimin ates against a bidder in another member state/non -member state. 
Please explain guidance provided to procuring entities on how to ensure 
consistency with UK's GPA obligations while also working to fulfil the 
overarching goal indicated in the PPN (that is, t o increase the quantity and 
quality of apprenticeships in England by three million)?  
The UK government has not published any additional guidance on this.  Please see our 
response to a. above. In a recent procurement relating to the provision of official 
documents the winning supplier, who was from outside the UK, indicated that it would 
provide new apprenticeships.  
 
3. Can the UK explain how it ensures that the effect of such considerations related to 
implementation of the Public Services (Social Value) Act 2012, including those identified 
in Questions 1 and 2, do not amount to offsets or have a discriminatory effect on 
international suppliers?  
All social and wider economic considerations are subject to the legal requirements of non -
discrimination, equal trea tment and transparency. The guidance referred to in Questions 1 and 2 
gives clear guidance to UK procuring authorities on the need to ensure compliance with these 
obligations.  We have no evidence of these considerations being applied in a way that amounts to an 
offset or having a discrimination effe ct on international suppliers.  
 
4. In its response to a question on the Procurement Reform (Scotland) Act 2014 and 
its facilitation of SMEs (Question 2), the United Kingdom provided information on 
statutory guidance  issued by Scotland. In this guidance, Scotland notes that Section 11 of 
the Act allows for participation in procurements to be restricted to supported businesses 
as long as the procurement is not subject to EU rules. For policies and procedures, 
particula rly in Scotland, that are tied to EU rules and/or EU thresholds, can the United 
Kingdom explain how, upon leaving the European Union, these policies and procedures 
will be amended?  
Scotland does not intend to make any amendment to the scope of section 11 o f the Procurement 
Reform (Scotland) Act 2014 for EU exit and it will continue to apply to procurements to which the 
Public Contracts (Scotland) Regulations 2015 do not apply.  
 
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