Status of Inclusive Public Procurement Policy in India or the lack there off

Status of Inclusive Public Procurement Policy in India or the lack there off

What is disability inclusive public procurement policy? 

Disability inclusive public procurement can be summarised as follows: choosing and rewarding contractors that employ persons with disabilities (preferential contracting); clear procurement criteria that rewards accessibility and universal design; and procurement practices for care and support services that are compliant with the provisions of the CRPD.

Disability-inclusive public procurement can generally be categorized into two types: preferential contracting and procurement to promote accessibility. 

Preferential contracting aims to enhance the economic and social empowerment of persons with disabilities by awarding contracts to business entities or civil entities that hire persons with disabilities or are run by them or NGOs for person with disabilities, that meet certain criteria. On the other hand. 

Procurement to promote accessibility incorporates accessibility and/or universal design standards into the bidding criteria when selecting the most appropriate supplier. 

How can disability-inclusive procurement policies achieve accessibility?

"It is unacceptable to use public funds to create or perpetuate the inequality that inevitably results from inaccessible services and facilities." Committee on the Rights of Persons with Disabilities, Convention of the Rights of Persons with Disabilities General Comment No. 2 (2014) 

Public procurement refers to the process by which public authorities (procurers) purchase work, goods or services from an external contractor (supplier) which they have selected for this purpose’. Procured goods and services can include equipment (i.e., computers and furniture), services (i.e., in schools, hospitals, ministries), public transport, built environment, infrastructure public works, urban planning, water supplies and waste treatment. 

Public procurement is a considerable economic activity. For developing countries, public procurement amounts to an average of 15 to 20 per cent of Gross Domestic Product (GDP) and up to 50 per cent or more of government expenditure. 

If publicly procured goods and services are universal design-based or accessible, the purchasing power of governments can serve as an effective leverage to promote universal design-based society with the involvement of both public and private sectors. As the Committee on the Rights of Persons with Disabilities states, it is unacceptable to use public funds to create or perpetuate the inequality that inevitably results from inaccessible services and facilities. This supports a procurement incorporating accessibility perspective. 

Countries like South Africa have maintained effective governance by enforcing laws which requires government entities implementing procurement policies to preference categories of people disadvantaged by unfair discrimination. The Preferential Procurement Policy Framework Act provided a framework for implementing Constitutional section 217. The Act provides a system to evaluate the tender process with a goal to contract persons, or categories of persons historically disadvantaged by unfair discrimination on the basis of race, gender or disability. 

Speaking of effective governance, United Kingdom Public procurement complies with relevant principles of EU treaties. The 2006 Public Contracts Regulations  and 2006 utilities Contract Regulation implement the EU procurement and utilities directives and have a provision for reserving contracts for supported businesses, factories or employment programs. Public authorities may reserve the right to participate in public contract award procedures. Supported employment programs, factory or businesses are establishments or services “where more than 50% of the workers are disabled persons who because of the nature or severity of their disability are unable to take up work in the open labour market.” Supported employment programs are the same as ‘sheltered employment programs’ under the EU Directives.

Contracting authorities are required to indicate in the Official Journal of the European Union Contract Notice when a contract is “reserved for sheltered workshops under Article 19 of the Directive”: Before taking the decision to reserve a contract, contracting authorities should consult with the market to establish whether or not supported factories and businesses will be able to meet their requirements and provide value for money.

How and why disability-inclusive procurement policy works to promote accessibility?

The public procurement process generally consists of six key phases: firstly, to identify accessibility needs of the procurer; secondly, call for tenders; thirdly, the evaluation of tenders; fourthly, the selection of contracts, followed by the awarding of contracts and lastly, the management of procurement contracts.

A Disability-inclusive public procurement policy would include compliance with a technical accessibility standard as part of criteria for suppliers to be considered in bidding. Therefore, when soliciting suppliers to apply for bidding for a certain product, a government, first and foremost has to have technical standards in compliance with international standards such as then a government entity conducting procurement will have to inform that requirement to potential suppliers. Then, typically, suppliers wanting to participate in bidding are required to submit the written evidence that their product or service is accessible. The government entity which solicited tenders is required to check the product or service accessibility compliance through review. Technical standards used as criterion should be nationally recognized and compatible with international standards. A contract will generally be awarded to the most competitive supplier in accordance with their compliance with relevant procurement criteria, including fulfilment of accessibility standards. Generally, a disability-inclusive public procurement policy defines a scope of products and services this accessibility criterion is applied to. 

Implementation of disability-inclusive public procurement policies could create an upward spiral of market-driven spread of accessible goods and services. First, incorporating universal design-based accessibility within public procurement, creates an incentive for suppliers to increase the production of accessible goods and services.

Then, the increased supply can lead to a ripple-on effect, providing a broader range of accessible goods and services available to consumers with diverse needs in the domestic market first, and later international markets as importing and exporting of accessible goods and services become more prevalent. As the availability of accessible goods and services becomes more widespread, healthy competition in the market ensues, thus leading to products and services that are more affordable, and the potential for the quality of universal design-based accessibility to improve. If more universal design-based accessible products and services are available in the market, not only persons with disabilities who have long term difficulties in different functioning but also those who have accessibility needs temporarily or situationally can benefit from them.

Furthermore, this approach might be more cost efficient. In general, incorporation of universal design and accessibility at the initial stage of product and service design can limit further costs which may arise from modifying inaccessible goods or services at a later date. Moreover, as governments are obliged under the CRPD to remove all barriers to goods and services wherever they exist, retrofitting accessible goods or services should not be avoided due to the possibility of additional costs. Enforcing disability inclusive public procurement policies can also lead to cost savings for governments. 

What is CRPD compliant public procurement?

The Convention on Rights of Persons with Disabilities (‘the Convention’ also known as the CRPD) has been ratified by over 150 countries. Article 4 of the Convention outlines general obligations requiring States Parties to take measures to eliminate discrimination on the basis of disability from legislation, policy and practice including from ‘any person, organization or private enterprise’. 

Public procurement can mainstream inclusion in many sectors. Procurement can promote accessibility of community facilities and services in implementing the relevant Convention Articles. For example, Article 9 (accessibility) intersects with Articles 13 (access to justice), 19 (living independently), 20 (personal mobility) 21 (freedom of expression), 24(education), 25 (health), 26 (habilitation and rehabilitation), 27 (work), 28 (social protection), 29 (political and cultural life) 30 (cultural life and sport) 31 (data) and 32 (international cooperation) in terms of access to facilities, services and information. Public procurement can promote de facto equality to accelerate inclusion of people with disabilities (Article 5) and can help fulfill Convention obligations. Yet more can be done. Even in countries with inclusive public procurement policies, implementation needs to be reviewed or improved. 

Addressing discrimination on the basis of disability is a priority for public procurement policy and legal reforms. Non-discriminating public procurement means people with disabilities are not excluded or restricted from benefiting from procurement processes and outcomes on an equal basis with others.

What is status of inclusive public procurement in India? 

The public procurement system in India makes no 

reference to disability. There are no reservations in contracts for persons with disabilities. There is a provision for preferential treatment to earmarked sectors such as micro, small and medium enterprises (MSME). Small and Medium Enterprises (MSME) is in final stages of issuing a public procurement policy that is likely to make it mandatory for all ministries and public sector undertakings to procure 20 per cent of their total annual purchase volume from the micro and small enterprises In tender specifications, accessibility requirements are provided in tender documents but limited to tenders relating to building construction. India does not presently have accessibility standards for transport, information communication technologies etc. and tenders for these do not have any requirement to provide accessibility.

Public procurement policy 2018 just says that public procurement processes must adhere Rights of Persons with Disabilities Act 2016.

What is the impact of the Indian Inclusive Public Procurement Policy on accessibility? 

As of May 2017, the MTC had a scheduled fleet of 3688 buses and total fleet strength of 3968 buses. Wikipedia 

The Hindu reported on 15-Feb-2019 As many as 1,816 new buses have been inducted into the fleet of ... are part of the 2,100 new buses announced in 2016-17 budget.

7 special MTC buses are inaugurated by CM in Chennai for Handicap people 29/11/2011 skyscrapercity.com. How accessible are these 7 buses? Please read

http://rajivstoryfies.blogspot.com/2021/10/a-road-to-nowhere-with-mtc-chennai-from.html

As of March 2020, Indian Railways' rolling stock consisted of 2,93,077 freight wagons, 76,608 passenger coaches and 12,729 locomotives. 8675 more coaches are expected in 2020-21.

https://en.m.wikipedia.org/wiki/Indian_Railways#:~:text=As%20of%20March%202020%2C%20Indian,at%20several%20locations%20in%20India

There is no data available on the number of so called accessible railway coaches. How accessible are these so called accessible coaches is different questions and has depth in detail in

http://rajivstoryfies.blogspot.com/2021/10/accessible-indian-railways-never-to-be.html

Accessible Indian Railways … Never to be a Reality?

 Accessible Indian Railways … Never to be a Reality?

[Flashback - 2005]

D.N.I.S. News Network dated  15/12/2005 

- "Following an affidavit filed by the Indian Railways in the Madras High Court in a hearing on a Public Interest Litigation, an audit team from Disability Law Unit (D.L.U.), South, Vidya Sagar, has found false the claims made in the affidavit about disabled-friendly services at Chennai Central and Egmore stations.

A report prepared by the team, constituting Rajiv Rajan, Dhana Sekar and Manjunathan, says that most of the statements made in the affidavit are incorrect. They visited platforms 6 to 9 where five trains were stationed at the time of visit. These were Thiruvanthapuram-Chennai Mail, Thiruppathur-Chennai, Elagiri Express, Hyderabad-Chennai Chaminar Express, Mysore-Chennai-Thirupathi Express, and Coimbatore-Chennai Cheran Express.

"It was astonishing to note that none of these trains out of which three are connecting links between major cities of South India had no special compartment for disabled people as mentioned in the affidavit. It was also found that disability sign is being used in the normal compartment," the report says.

Another point mentioned in the affidavit is that the wheelchairs have been modified to allow easy entry into the coaches but what the access auditors saw at the Chennai Central was shocking. "Leave alone any new adaptation, the wheelchair had no front wheels," it adds.

"It will be difficult for even a non-disabled person to get into the so-called disabled-friendly coach, as it is in no way different from the normal compartment at least at the doorsteps, excepting for a wider door. It is also interesting to note that the coach is not connected with other coaches in the train. In fact it is an extention of the luggage wagon," the report further adds.

The report also claims that no facility is available to lift a person on wheelchair into this coach. The disabled-freindly coach is actually an unreserved compartment and can accommodate only two disabled people and their escorts. There are incidents when more than 20 disabled people with escorts have travelled by the coach, which has the capacity of carrying only four.

"If this is the case of the two major stations at a place where the regional head quarters is situated, what about other places? What will be the accessibility condition in small places? Can anyone from the railways dare to answer these questions?" concludes the audit report."

A person with disability on wheelchair had to cross the track on wheelchair, and the wheels can get caught between tracks. To travel long distance by train in the late 90s, a person with disability would have to starve for 2-3 days as trains and stations lacked accessible toilets. Also, train berths were too narrow for a person with disability who involuntary movement. So, he would lie on the floor of the train, which can be very painful because of the train’s movement. Getting into the train was another nightmare as it is even now. Just a slip and the person would be under the train between the platform and the wheels.

There was no way a person with disability could get out of the station without crossing a number of railway tracks. Wheelchair’s front wheel used to get caught in one of those tracks. Escaping with minor injuries was considered to be fortunate enough.

Disgusted with the experiences of train travel and with the support of a couple of lawyers, I filed a PIL in 2005 urging the railways to make the stations and coaches accessible.

---

[Fast-forwarding to Oct 2021]

There are some sporadic changes in railway stations, facilities such as ramps were built in almost all the stations, I believe accessible toilets were also built in major stations and that is when the railways came up with the idea of a special coach for the people with disabilities. To give a little bit of credit to the railways, inside the special coach was kind of accessible but the same story continued to get into the train, which was next to impossible.

Railways are supposed to be one of the largest revenue generators for the government. This implies that lack of funds is not the reason. Given this, we are left to wonder what is stopping this largest network from being accessible.

Unfortunately though most of the issues mentioned above still remain unresolved despite Rights of Persons with Disabilities Act 2016 and the United Nations Convention on the Rights of Persons with Disabilities which india ratified in 2007.

There are still no accessible ways to enter or exit the  coaches. No accessible way to cross the track whatsoever. No braille forms or documents. No sign language interpreters

Vande Bharat 'Express still excludes persons with disabilities totally. A 100% Made in India train (with '100%' Indian priorities for  passengers with disabilities!)

While persons with disabilities have 'graduated' from luggage rake to driver trailer coach, there's only 1 space reserved for a wheelchair user in a passenger train of 1128 seats when at least 2 seats per coach must have been reserved and made accessible for persons with disabilities.

It is important to note here that the rakes of these trains are made as a part of "Make in India" campaign and the moto of the government has been "Sab ka Sab ka Vikas". Are persons with disabilities not a part of this motto? 

Govt of India is doing so much for sabka saath sabka vikas. Why are the rolling stock not based on universal design? Why not dedicate at least two seats per coach to wheelchair users or mobility impaired people?

Sab ka sat sab ka Vikas is only for non "divyang jan" ? 

"Titles are enough for children" - is this the view of Government of India? Are persons with disabilities citizens of India or are we refugees in our own country?

Is the view of government "many persons with disabilities are not considered to be a person before the law and hence can not vote, so why should we do anything for them?" Well, remember your attitude towards persons with disabilities is the reason for us being denied the right to franchise also.

If a person with disability cannot enter a railway station, get from one platform to another and get into the train itself, what is the use of the disability compartment? Or what is the use of reserving berth for persons with disabilities irrespective of the class? When will the railways wake up to the calls of 15 per cent of the population of India?

A Road to Nowhere with MTC Chennai from November 2005 to till date

A Road to Nowhere from November 2005 to till date 

It was with great hope that a Public Interest Litigation was filed at High Court of Madras on 23.11.2005 after ad due process of deliberations with the respective authorities for making MTC buses accessible for persons with disabilities.

The Honorable High Court expanded the scope of the petition to Public Buildings in one its early hearings.

Fast forwarding to 06.04.2016 after a long series of back and forth with affidavits and counter affidavits and a number of meetings The Honorable High Court gave an interim order saying 

"5. We are of the view that any steps to be taken for the benefit of the persons with special needs has to be inclusive in character. The idea cannot be to have separate buses, but buses which are used daily by passengers meeting the requirement of Persons with special needs. It is not possible to pre-determine the route to be travelled, the destination to be reached etc., by introducing buses only for certain routes which are disabled friendly. The objective has to be, over a period of time, to make sure all the buses in use meet the requirement of people with special needs. This can only happen if procurement of such buses which are meant to cater to the people with special needs, as otherwise what has happened would continue to happen – introducing of new buses in the fleets which still do not meet the requirement of the people with special needs.

6. We thus direct that any new buses to be introduced in the fleets must meet the requirement of the people with special needs and as per the norms in consultation with the Commissioner for Persons with Disabilities.

7. In determining whether a bus is disabled friendly, inter alia, it has to be ensured that there is easy access for boarding and alighting." 

Raising rays of hope for persons with disabilities in Chennai. 

Chennai's 2021 population is now estimated at 11,235,018 and according to the government of Tamil Nadu. There is a disability rate of 1635 per 100 000 population. There are 1,83,695 persons with disabilities as per the statistics given above. The fact is that disability statistics in India is calculated vary poorly. The WHO says 15% of any given population is persons with disabilities. The estimated population of persons with disabilities in Chennai is 16,85,253 as per The WHO statistics. 

Buses bought/allotedq by MTC/State transport corporations after the above order 

"Eight State Transport Corporations (STCs), which have been saddled with aged buses, are set to get 2,000 new buses in the next six months" The Hindu 22nd February 2018

"The new red buses launched by the Metropolitan 

Transport Corporation in three phases since October 2018, replacing nearly 10% of the aging fleet, are a big hit among commuters in the city.Despite able to seat eight people fewer than the old buses that have 46 seats, the 300 new buses, with broader seats and better leg space, are drawing more commuters and generating more revenue, shows official data." 15th May 2019 new Indian express

"The new buses were part of the 500 buses flagged off by Chief Minister Edappadi K Palaniswami here on Wednesday. The buses were built at a cost of Rs. 154.24 crore. Of the 500 buses, 235 buses are allotted for MTC" 15th August 2019 New Indian express

"Though no electric buses have been allotted to MTC under the FAME scheme, the State government will be purchasing 500 electric and 2,213 Bharat Stage VI buses, at a cost of ₹1,580 crore, through funding from KfW of Germany" DT NEXT 23.11.2019

"The government, in the interim budget on Tuesday, sanctioned `623 crore for the first phase of the project, which will involve buying 2,200 diesel buses and 500 electric buses. “A majority of the e-buses will be for MTC, Chennai, and the rest will be deployed in Madurai and Coimbatore cities,” said a senior transport department official" Times of India 24.02.2021

in normal circumstances this is enough and more reasons to file a contempt of court but some how we missed the proverbial bus may be because it is against the buses.

The UN Convention on the Rights of Persons with Disabilities ratified by India in 2007 says 

"1. To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas. These measures, which shall include the identification and elimination of obstacles and barriers to accessibility, shall apply to, inter alia:

a) Buildings, roads, transportation and other indoor and outdoor facilities, including schools, housing, medical facilities and workplaces;

b) Information, communications and other services, including electronic services and emergency services."

The Rights of Persons with Disabilities Act 2016 with clear deadline for implementation says

"Section 41 in The Rights of Persons with Disabilities Act, 2016

Title: Access to transport.

Description: (1) The appropriate Government shall take suitable measures to provide,— (a) facilities for persons with disabilities at bus stops, railway stations and airports conforming to the accessibility standards relating to parking spaces, toilets, ticketing counters and ticketing machines; (b) access to all modes of transport that conform the design standards, including retrofitting old modes of transport, wherever technically feasible and safe for persons with disabilities, economically viable and without entailing major structural changes in design; (c) accessible roads to address mobility necessary for persons with disabilities. (2) The appropriate Government shall develop schemes programmes to promote the personal mobility of persons with disabilities at affordable cost to provide for,— (a) incentives and concessions; (b) retrofitting of vehicles; and (c) personal mobility assistance."

"6. The State seeks time to indicate a road-map. However, it is necessary that the State be restrained from acquiring any further bus for the public transport system which does not conform to the specifications indicated in the notification of September 20, 2016 referred to above. In other words, the State will not acquire any new bus for use thereof as part of the public transport system unless such bus meets the standards indicated in the notification of September 20, 2016." Says the Honorable High Court of Madras 

Despite all this the MTC yesterday said in court that they they don't have the resources to implement any of these laws and court orders. Forcing the Honorable High Court to give an order saying 

"2 Appropriate measures should have been taken much earlier so that things would not come to such a pass. Though it can be appreciated that the pandemic has caused a severe loss and city roads may still not be viable to receive low platform heavy duty vehicles,

there has to be much more acquisition of disabled friendly buses and investment in appropriate roads since the law has been in place for a considerable period of time. At the same time, some latitude may be

offered so that the larger public interest is served and the blanket embargo on acquisition of buses does not completely disable the public transport system

3. The State seeks time to indicate the road-map that has been referred to in one of the previous orders. The State also seeks time to furnish appropriate figures so that some time may be afforded to the State to go in for a mix of disabled friendly and ordinary buses for a

limited period before all buses acquired from a particular date will be as required by law to be disabled friendly."

"The state government of Tamil Nadu, in its revised budget for FY2021–22, has allocated INR6.23 billion under the KfW assistance programme for the procurement of 1,000 new buses. It has also allocated INR7.03 billion as subsidy for free travel on buses for female and third-gender passengers as well as passengers with limited mobility on buses operated by the state transport authority. It has also allocated INR7.50 billion as diesel subsidy to insulate against price increase.

 The state government has announced plans to launch the Chennai City Partnership Programme, in partnership with the World Bank and the Asian Infrastructure Investment Bank (AIIB). The programme aims at revitalising the Chennai Urban Metropolitan Transport Authority (CUMTA). The state government has also announced plans to prepare the detailed feasibility report for an upcoming metro project in Madurai, one of the largest cities in the state." Global Mass Transit 13th August 2021 

 Still MTC does not have money to make buses accessible!

This being the case of Physical Access with MTC, Are their services any in terms of access? The following 2 instances are enough to answer that question as well 

"When Rajiv Rajan boarded a bus at Parrys on Tuesday evening, he didn't expect the conductor to make a fuss about his wheelchair. The conductor of the 21G deluxe bus refused to let Rajiv, coordinator of Vidyasagar's disability legislation unit, travel to Kotturpuram unless he paid "luggage charges" for his wheelchair" Times of India 22nd February 2009

"In a shocking case, a person with disability, who was invited to participate in a demonstration and trial of accessible MTC buses, toppled backward from the ramp when she tried to board the vehicle, and hit the back of her head on concrete floor. The incident stirred panic at the function, as other persons with disabilities felt the prototype was a threat to their safety." New Indian Express 8th November 2019

We have purposely copied and pasted in most of the document from credible sources so that nothing we say can be sensibly denied 

16 years of legal battle in 2 PILs, an UN Convention a National Law to "Protect" The Rights of Persons with Disabilities are not enough to stop discrimination against persons with disabilities. Like there used to be whites only buses during the pre independent days now there are able bodied only buses. 

Where do we citizens with disabilities in India go to protect our rights? 

Or is it that we are not the citizens of this country? 

Does anyone care in Chennai for its 17 lakh odd citizens with disabilities?

Will any one us be able to see an accessible MTC fleet of buses?

Is there anyone listening to all this?