The Development and Implementation of Gender Equality Considerations in Public Procurement in Germany

Abstract

Public procurement is an important part of states’ activities and a major market. As the potential of public purchasing to foster gender equality has increasingly come into focus, regulatory policies in a number of countries increasingly draw the link between public procurement and equality. Analyzing the development of regulatory policies relating to gender equality and public procurement in Germany between 1990 and 2016, this article highlights the growing prevalence of such linkages in regulatory policies. This article then analyzes the implementation of equality considerations in public procurement in the specific case of a local council in Germany. The findings highlight the importance not only of the existence of legal regulations but also of their design and suggest that in the case of voluntary regulations, structural incentives may encourage public bodies not to use the existing scope for equality considerations, particularly if they encounter an unfavorable environment.

HIGHLIGHTS

• The EU and member states, including Germany, increasingly aim to use public procurement as a lever to promote (gender) equality.

• However, the literature suggests low prevalence of equality considerations in public-procurement practices

• An analysis of gender-equality sensitive procurement in Germany finds the design of legal regulations is as important as their existence.

• Policymakers should create administrative incentive systems to promote the successful implementation of equality considerations in public procurement.

KEYWORDS:

• Economic policy
• public policy
• equality
• gender
• public procurement
• public administration

JEL Codes:

• E6
• H57
• H5

View correction statement:

Correction

ACKNOWLEDGMENTS

The interviews analyzed for this research were conducted in the context of the research project “Social Standards in Public Procurement. Regulations and Implementation in European Comparison” at Bielefeld University. This project was funded by the Hans-Boeckler Foundation (2012-581-4). I would like to thank the interview partners for their time and wish to thank the project’s Principal Investigator, Prof. Detlef Sack, for the permission to analyze these interviews for the purpose of this analysis. The article furthermore benefited from inspiring discussions and constructive feedback while I held the Ailsa McKay Postdoctoral Fellowship at Glasgow Caledonian University. I am particularly thankful to Diane Elson, Emily Thomson, Wendy Olsen, Sara Cantillon, Angela O’Hagan, Zofia Łapniewska, and the anonymous reviewers for their time and valuable and highly constructive comments.

Notes

1 When taking into account spending by public utility providers, it said to account for about €2.4 trillion and a share of almost 19 percent of GDP (Cernat and Kutlina-Dimitrova 2015).

2 A further 26 percent “sometimes” included social aspects, and 9 percent declared to do so “as often as possible” (European Commission 2011: 82).

3 All personal information that would allow the identification of any person(s) described in the article has been removed.

4 In general, in Germany, public procurement takes place in a largely polycentric environment: about 30,000 procuring entities are involved in processing public purchasing (Beck, Schuster, and Dicks 2014: 15). While no comprehensive data exists, existing studies point to a largely decentralized organization of public procurement within local authorities. For instance, a study by the Institut für den öffentlichen Sektor found that only about 20 percent of local authorities in their study had a centralized procurement team (Beck and Schuster 2013), and that in most local authorities, a number of people were charged, among others, with public procurement. In two third of local authorities more than twenty people were (partially) charged with public procurement (Beck and Schuster 2013: 12).

5 The ECJ has highlighted stipulations relating to the employment of specific groups, namely unemployed, in a specific contract do conform with European law (C-31/87 Gebroeders Beentjes BV v. State of the Netherlands; C-225/98 European Commission v. French Republic).

6 These stipulations were abolished in 2003 by a coalition government formed by the CDU and the FDP.

7 In addition, the public procurement law of Rhineland Palatinate explicitly admits social considerations and mentions equal pay as an example.

8 Against the background of extensive binding regulation regarding non-discriminatory remuneration and jurisdiction on equal pay, stipulations of equal pay for men and women are but a reiteration of existing (and binding) regulations, “a regulatory tool of enforcement” (McCrudden 2007: 7).

9 Equal pay is, in this specific case, given as an example for social considerations as such.

10 While Berlin’s public procurement does not specify any measures, it includes a reference to the statutory decree in which includes specific stipulations on antidiscrimination, equal opportunities, and reconciliation of work and family life are embedded.

Additional information

Notes on contributors

E. K. Sarter

E. K. Sarter is Senior Lecturer for Social Policy and Public Service Management at the University of South Wales.