The right to challenge is a national process introduced in 2012 through the Government's Localism Act. This makes it easier for voluntary and community groups or council employees to bid to run council services.
The right to challenge enables eligible groups to express an interest in running a local authority service, providing:
- the extra time they need to express an interest in running a local authority exercise
- a way of opening up public service delivery to groups and organisations other than those in the public and private sector
We must consider expressions of interest and, where we accept them, run a procurement exercise for the service which anyone can compete in. Rather than a 'right to run' a public service, it is a 'right to complete' in a procurement exercise.
How does the right to challenge process work?
Read the information below for more information on the stages:
1. You submit an expression of interest
The right to challenge applies to most of the services we provide. There are, however, some exceptions set out in the statutory guidance. The right only applies to the provision of services, it does not provide for delegation of the functions of a relevant authority. The responsibility for the function itself remains with the relevant authority.
The maximum period between the date we receive your expression of interest and the date by which we will notify you of our decision on is 26 weeks. We will make the decision more quickly than this where possible. We will notify you of the exact date by which we will let you know our decision. This will be provided in writing within 30 days after the close of the expression of interest application window.
2. Relevant bodies submit expression of interest
Submitting an expression of interest is the first formal step in using the right to challenge:
- Complete an expression of interest form.
- A guide to completing your expression of interest form.
The form requests all the information we are allowed to as set out in the statutory guidance.
Our window for submissions is from 1 September 2021 until 31 October 2021. This window will be for all services, for the financial year 2022 - 2023. After this process has been run for the first time, the entire process including the 'window' will be reviewed, and details for 2022 will be published online as soon as available.
We will specify the maximum period that it will take to notify you of our decision. Different periods may be set for different cases depending on their complexity. We will also notify you of this time period in writing within 30 days after the close of the expression of interest window.
Completed forms must be emailed to email@example.com.
3. Expression of interest either accepted or rejected
The expressions of interest will be considered by our directors and cabinet members. We will make a decision using the National Criteria as a guide.
The decision will be one of three options:
- 'accept with modification'
Accept - The group who has submitted the expression of interest will have presented a strong case that they could provide the relevant service. We will then run a procurement exercise to find the best provider.
Accept with modification - We may seek to agree to an expression of interest being modified if we believe we would otherwise reject it. If an agreement cannot be reached, we may reject the expression of interest.
Reject - Government has set out a series of reasons why an expression of interest can be rejected.
We will reject an expression of interest if:
- The expression of interest does not comply with any of the requirements specified in the act or in regulations.
- The relevant body provides information in the expression of interest which the relevant authority considers to be inadequate or inaccurate.
- The relevant authority considers, based on the information in the expression of interest, that the relevant body or, where applicable; a). any member of the consortium of which it is part, or b). any sub-contractor referred to in the expression of interest is not suitable to provide or assist in providing the relevant service.
- The expression of interest relates to a service where a decision, made in writing, has been taken by the relevant authority to stop providing that service.
- The expression of interest relates to a relevant service a). provided in whole or in part by, or on behalf of, the relevant authority to person who are also in receipt of a service provided or arranged by an NHS body which is integrated with the relevant service, and b). the continued integration of such service is, in the opinion of the relevant authority, critical to the wellbeing of those persons.
- The relevant service is already the subject of a procurement exercise.
- The relevant authority and a third party have entered into negotiations for provision of the service, where negotiations are at least in part conducted in writing.
- The relevant authority has published its intention to consider the provision of the relevant service by a body that two or more specified employees of that authority propose to establish.
- The relevant authority considers that the expression of interest is frivolous or vexatious.
- The relevant authority considers that acceptance of the expression of interest is likely to lead to contravention of an enactment of other rule of law or a breach of statutory duty.
If we decide to reject an expression of interest, we have a legal duty to publish the decision and the reasons for the decision online.
We will notify the groups who have submitted an expression of interest of the decision and we will update the expression of interest register to show the outcomes of the process.
4. Procurement process
If we accept (even in modification) an expression of interest for a service, then we will carry out a procurement exercise to select the most appropriate service provider. The minimum period between the date of our decision to accept an expression of interest and the date of which the procurement exercise will begin is 12 weeks. The maximum is 26 weeks. The time between the expression of interest acceptance and the procurement process starting provides additional time for the groups who submitted expression of interest to prepare to compete in the procurement exercise. This is one of the main benefits of right to challenge.
To allow this extra time we are obliged to delay the start of the procurement exercise for a reasonable time to allow the successful organisation time to prepare for procurement. We will publish the exact timescale in our expressions of interest register once an expression of interest has been accepted.
The procurement process will comply with the public sector and any relevant procurement rules. This process is open to competition and involves other potential providers (including private sector,) not just those submitting the original expression of interest. Procurement processes can take some time to complete and potential providers will need the resources and financial flexibility to continue engaging throughout the process.
The Public Sector (Social Value) Act requires us to consider best value (including social, economic and environmental) in our procurement processes.
It is worth remembering that the right to challenge does not allow for a service to be run for a trial period. If an expression of interest is accepted, a procurement process will take place and run for the period set out in the contract for the service.