No equality plan, no bidding: the social clause that leaves you out
Nextica Law & Tax prepares the equality plan of a company that bids by looking at the tender documents, which is where this duty stops being an employment matter and becomes a business one. Law 9/2017 requires the contracting authority to include at least one social special condition of performance under its art. 202, and equality between women and men is expressly among those it lists; it also allows it to be scored as an award criterion under art. 145, so the plan earns points. And art. 71.1.d turns not having the plan, where it is mandatory, into a prohibition on contracting. The plan is drafted and negotiated under RD 901/2020, filed, and the evidence the tender will demand during performance — not only at bid stage — is prepared.
The equality plan stopped being an employment duty the day the tender started scoring it.
What's included
2. Checking your own obligation by headcount and collective agreement, and deciding on a voluntary plan where you are not required to have one but the tender scores it.
3. Negotiating the plan with the committee and filing it, with a timetable matched to the tenders you intend to bid for.
4. Preparing the evidence the bid envelope asks for
responsible declaration, filing, and the documents the authority may require from the proposed bidder.
5. Translating the plan's measures into verifiable commitments where equality comes in as a special condition of performance, with who measures them and how often.
6. Evidence during performance about the workforce assigned to the contract, which is not the whole workforce and is usually what gets checked.
7. Defence if the evidence is challenged
rectification, submissions and appeal where the exclusion does not stand up.
HERE IT IS NOT AN EMPLOYMENT DUTY: IT IS AN AWARD CRITERION
And sometimes something worse than losing points: a prohibition on contracting that shuts you out of every tender at once.
Bidding without the plan where it is mandatory
failing to comply with the duty to have an equality plan, where the company is subject to it, is among the circumstances that prevent contracting with the public sector, and the effect is not losing one contract but being shut out of public procurement.
art. 71.1.d of Law 9/2017 on Public Sector ContractsOffering equality as a statement of intent where the tender sets it as a special condition of performance: it becomes an enforceable obligation for the whole contract, under whatever regime the tender establishes, which can reach termination where it was given the character of an essential obligation.
art. 202 of Law 9/2017 on Public Sector ContractsRuling out a voluntary plan because you are not required to have one
the law allows social features of the bid to be scored as an award criterion provided they are linked to the contract's subject matter, and many tenders score them without regard to the bidder's size. It is the section that usually decides ties.
art. 145 of Law 9/2017 on Public Sector ContractsIS YOUR BUSINESS REQUIRED? — THRESHOLD TABLE
The calculation of employees includes all the company staff, regardless of their type of contract, working hours, or workplace. Part-time workers are calculated according to their equivalence to full-time.
| Template | Equality Plan | Remuneration audit | Reporting channel |
|---|---|---|---|
| Less than 50 workers | Volunteer | Not mandatory | Volunteer |
| 50 to 249 workers | MANDATORY — negotiated with RLT | MANDATORY — included in the Plan | MANDATORY since 2023 |
| 250 or more employees | MANDATORY · annual remuneration register | MANDATORY · annual update | MANDATORY since 2023 |
Less than 50 workers
50 to 249 workers
250 or more employees
Frequently asked questions
We are 38 people and not required to have a plan. Does that hurt us in tenders?
Not being required to have one and not having one are different things for scoring. Law 9/2017 lets the contracting authority score social features of the bid as an award criterion, provided they are linked to the contract's subject matter, and many tenders score equality measures regardless of the bidder's size. There, a voluntary plan — or at least a set of written, verifiable measures — is the difference between scoring and not scoring in a section that often decides ties. It is worth reading the recent tenders of the authority you want to sell to before reading your own headcount.
The tender sets equality as a special condition of performance. What does that mean during the contract?
That it stops being a statement in the bid and becomes an enforceable obligation for the contract's duration, under whatever regime the tender establishes: from penalties to, where it has been given the character of an essential obligation, termination. In practice it means someone will ask for evidence mid-performance — the pay register, the composition of the assigned workforce, measures actually applied — and you have to be able to hand it over without redoing anything. That is why the plan is prepared with monitoring in mind, not just the envelope.
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